Mauzy v. Kelly Services, Inc.

• Decision Date: 12 June 1996
• Docket Number: No. 95-301,95-301
• Citation: 75 Ohio St.3d 578,664 N.E.2d 1272
• Parties: , 78 Fair Empl.Prac.Cas. (BNA) 901, 69 Empl. Prac. Dec. P 44,297 MAUZY et al., Appellants, v. KELLY SERVICES, INC. et al., Appellees.
• Court: Ohio Supreme Court

Page 578

75 Ohio St.3d 578

664 N.E.2d 1272, 78 Fair Empl.Prac.Cas. (BNA) 901,

69 Empl. Prac. Dec. P 44,297

MAUZY et al., Appellants, v. KELLY SERVICES, INC. et al., Appellees.

No. 95-301.

Supreme Court of Ohio.

Submitted March 5, 1996.

Decided June 12, 1996.

SYLLABUS BY THE COURT

1. The phrase "Absent direct evidence of age discrimination," as used in Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 575 N.E.2d 439, at the syllabus, refers to a method of proof, not a type of evidence. It means that a plaintiff may establish a prima facie case of age discrimination directly by presenting evidence, of any nature, to show that an employer more likely than not was motivated by discriminatory intent.

[664 N.E.2d 1274] 2. Irrespective of whether an inference of discriminatory intent is created directly or indirectly, the plaintiff must show that she was "discharged" in order to establish a prima facie case of age discrimination under former R.C. 4101.17.

3. Where a plaintiff alleging unlawful age discrimination chooses termination in lieu of transfer, her decision cannot be construed as an actual discharge under former R.C. 4101.17. However, she may establish by sufficient evidence that she was constructively discharged.

4. The test for determining whether an employee was constructively discharged is whether the employer's actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign.

Plaintiff-appellant, Phyllis Ruth Mauzy, began employment with defendant-appellant, Kelly Services, Inc. ("Kelly"), in April 1974 as Resident Branch

Manager of Kelly's Mentor, Ohio office. Throughout her employment, Mauzy consistently received exceptional performance evaluations from her supervisors. She was classified as a "Number 1 Manager" and, in 1987, received the "Manager of the Year Award."

In September 1987, defendant-appellee Patricia N. Hart became the Vice President and Regional Manager in charge of the Cleveland Region for Kelly, and thus Mauzy's supervisor. On August 6, 1992, Hart notified Mauzy that she was being reassigned to manage Kelly's recently downsized Mayfield office and to fill the newly created position of workers' compensation manager, and that her salary and benefits would remain the same. Mauzy refused the reassignment and her employment ended on August 18, 1992. Mauzy was sixty-one years of age at the time.

Hart and Mauzy disagree sharply on the series of events leading to Mauzy's reassignment. According to Hart, she attended a meeting during the week of June 1, 1992, at Kelly's corporate headquarters in Troy, Michigan, at which there was discussion concerning cost-cutting approaches that could be implemented by Kelly's regional managers. In particular, it was suggested that some of Kelly's full-service offices could be downsized to "employment centers" and the downsized territory incorporated into other full-service centers in the same geographic area. Also discussed was the creation of the position of regional workers' compensation manager who would monitor claims filed by Kelly temporary employees and develop safety programs in conjunction with Kelly's customers.

Accordingly, Hart made the decision to downsize the Mayfield office and incorporate its territory into the Mentor office. She also determined that Mauzy was the most qualified person in the Cleveland region to fill the job of workers' compensation manager. In order to implement this regional reorganization, Hart decided to transfer the manager of the Mayfield branch, Pamela Vaughn, to serve as regional branch manager of the Mentor office, and transfer Mauzy to the Mayfield office to serve as both manager of the Mayfield employment center and workers' compensation manager.

When Hart informed Mauzy of her reassignment, Mauzy first expressed interest in the workers' compensation position but, upon learning that she would be relocated to the Mayfield office, refused the job. After several attempts to convince Mauzy to accept the transfer, Hart finally told Mauzy that if she did not report to Mayfield on August 17, 1992, Kelly would assume that she wished to terminate her employment. When Mauzy failed to report to Mayfield on August 17, she was given one more chance to report on August 18. When she failed to report to Mayfield on August 18, it was concluded that she had decided to relinquish her employment.

Patricia MacKinnon, Regional Manager, Major Market Division for Kelly, set forth a version of the facts similar to that of Hart's, except to state that Mauzy "left us no alternative but to terminate her employment."

Mauzy's version is markedly different from that of Hart's. According to Mauzy, when Hart took over as her supervisor, Hart "made it absolutely clear that she wanted younger people hired, and would only allow [664 N.E.2d 1275] consideration of recent college graduates." Hart's first question was, "What is the applicant's age?" Hart asked Mauzy when she planned to retire and told her that "[i]f I were you, I would take the money and run." Hart also wrote a note in Mauzy's final performance evaluation that "you can't teach an old dog new tricks." ¹

Between 1988 and 1992, Hart consistently gave Mauzy negative evaluations. Hart berated Mauzy in front of coworkers for things Hart allowed younger employees to do. Hart removed three of Mauzy's four office staff; reduced Mauzy's territory in half; and, in April 1992, had already introduced Vaughn to Mauzy's key customers. Mauzy further testified that Vaughn was rated a "No. 5 manager"; and that the workers' compensation manager position was never filled and the Mayfield office was eventually "phased-out."

On September 24, 1992, Mauzy and her husband, appellants, instituted this action in the Lake County Court of Common Pleas against Kelly and Hart, alleging in part that Mauzy's termination was the result of unlawful age discrimination in violation of former R.C. 4101.17. The trial court entered summary judgment for Kelly and Hart, concluding that Mauzy "was not discharged from her employment within the meaning of the statute so as to maintain a claim for age discrimination but instead voluntarily relinquished her employment."

The court of appeals affirmed the decision of the trial court. In so doing, the court agreed with Mauzy that "the four elements [to establish a prima facie case of age discrimination] set forth in the syllabus of Kohmescher [v. Kroger Co. (1991), 61 Ohio St.3d 501, 575 N.E.2d 439] need not be proven where direct evidence of age discrimination is presented." The court found, however, that Mauzy failed to present such direct evidence of age discrimination. In so finding, the court relied on the definition of "direct evidence" as set forth in Black's Law Dictionary (5 Ed.1979) 414: "Evidence that directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes that fact." The court of appeals then reasoned that "[a]s a result, appellants were required to present a prima facie case of discrimination by proving the four elements set forth in the syllabus of Kohmescher." Since Mauzy was offered a lateral transfer and voluntarily chose to reject it, "she was not terminated within the meaning of R.C. 4101.17."

The cause is now before the court pursuant to the allowance of a discretionary appeal.

Dworken & Bernstein Co., L.P.A., Patrick J. Perotti and Robert J. Hoffman, Painesville, for appellants.

Thompson, Hine & Flory, Michael J. Frantz and Daniel A. Ward, Cleveland, for appellees.

Louis A. Jacobs; Spater, Gittes, Schulte & Kolman and Frederick M. Gittes, Columbus, urging reversal for amici curiae, Ohio Employment Lawyers Association, Ohio Now Education and Legal Fund, National Conference[664 N.E.2d 1276] of Black Lawyers, Columbus Chapter, Mid Ohio Board for an Independent Living Environment, Ada-Ohio, and Police Officers for Equal Rights.

Cathy Ventrell-Monsees, Washington, DC, urging reversal for amicus curiae, American Association of Retired Persons.

Vorys, Sater, Seymour & Pease and David A. Westrup, Columbus, urging affirmance for amicus curiae, Ohio Chamber of Commerce.

ALICE ROBIE RESNICK, Justice.

There are two issues presented for our determination--one involving the grant of summary judgment in favor of appellees on Mauzy's claim of unlawful age discrimination under former R.C. 4101.17, and the other involving the denial of two requests by Mauzy for additional discovery. The facts pertaining to the second issue will be set forth infra. We proceed first to the issue of summary judgment because this issue can be resolved without regard to the further issue of discovery.

I

The broad issue here is whether Mauzy presented sufficient evidence to withstand a motion for summary judgment. Ultimately, this issue turns on whether the circumstances surrounding Mauzy's separation from Kelly can properly be viewed as a "discharge" under former R.C. 4101.17. However, in light of the opinions below and the arguments advanced by the parties, we find it necessary to clarify certain aspects of the requirements for establishing a prima facie case of age discrimination.

Former R.C. 4101.17 (now renumbered R.C. 4112.14) provided in part as follows:

"(A) No employer shall discriminate in any job opening against any applicant or discharge without just cause any employee aged forty or older who is physically able to perform the duties and otherwise meets the established requirements of the job and laws pertaining to the relationship between employer and employee."

In Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146, 6 OBR 202, 451 N.E.2d 807, we adopted the analytic framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, for use in Title VII cases, and modified the elements of a prima facie case to fit the contours of former R.C. 4101.17. Thus, we...