Stair v. Phoenix Presentations, Inc.

• Decision Date: 23 December 1996
• Docket Number: No. CA96-06-114,CA96-06-114
• Parties: STAIR et al., Appellants, v. PHOENIX PRESENTATIONS, INC., Appellee.
• Court: Ohio Court of Appeals

Page 500

116 Ohio App.3d 500

688 N.E.2d 582

STAIR et al., Appellants, v. PHOENIX PRESENTATIONS, INC., Appellee.

No. CA96-06-114.

Court of Appeals of Ohio,

Twelfth District, Butler County.

Decided Dec. 23, 1996.

Meizlish & Grayson, and Bruce H. Meizlish, Cincinnati, for appellant.

Thompson, Hine & Flory, and Peter E. Tamborski, Cincinnati, for appellee.

WALSH, Presiding Judge.

Plaintiffs-appellants, William Stair and Tony Miller, appeal a decision of the Butler County Court of Common Pleas which granted summary judgment in favor of defendant-appellee, Phoenix Presentations, Inc. ("Phoenix") in an age discrimination case.

Appellants are former employees of Phoenix, an Ohio corporation whose business involves the design, manufacture, installation, and refurbishment of exhibits used at trade shows and conventions. Phoenix employs a diverse group of skilled workers who perform a variety of duties.

The exhibit industry in which Phoenix competes is a seasonal one which revolves around trade show and convention business cycles. Phoenix is normally busy during the winter, but experiences a decrease in business during the summer, consistent with the trade show industry.

In early 1995, Phoenix was anticipating the receipt of two large construction contracts, although neither client had committed to hire Phoenix. Phoenix did not have any new construction orders at that time and its employees were kept busy by completing miscellaneous tasks unrelated to their normal work duties. Because business was slow, Phoenix management decided to lay off several employees until business improved.

On February 20, 1995, Phoenix laid off eleven employees. Among those laid off were Stair and Miller. Stair, who was sixty years old at the time of the layoff, was hired by Phoenix in 1988, when he was fifty-three. Stair was employed in the warehouse/shipping and receiving department. Miller, who was fifty-five years old at the time of the layoff, was hired by Phoenix in 1991 when he was fifty-one. Miller was employed as a refurbishment carpenter. ¹

A short time after the February 1995 layoff, Phoenix obtained a contract for one of the large construction jobs that it had anticipated earlier. The job was classified as a new construction order that involved the construction of trade show exhibits. At that time, Phoenix recalled three bench carpenters ² and one carpentry helper. Soon thereafter, Phoenix recalled another bench carpenter and, later, a painter. Several months later, Phoenix recalled another helper and a machinist. Stair and Miller were not among the employees who were recalled by Phoenix as of August 1995. Phoenix did not hire any new employees during the layoff period.

On August 16, 1995, Stair and Miller filed a complaint against Phoenix, alleging that they had been discriminated against because of their age since they were the oldest Phoenix employees who were laid off and not recalled. When business increased in September 1995, Phoenix recalled Stair, but he declined to return to work. Miller was recalled in November 1995, but he also declined to return to Phoenix.

Discovery was conducted and several depositions were taken. On March 22, 1996, Phoenix filed a motion for summary judgment. The trial court granted the motion in an opinion and order of judgment filed on May 16, 1996. It is from this judgment that appellants now appeal, setting forth the following assignments of error:

"Assignment of Error No. 1:

"The trial court erred in granting Defendant-Appellee's Motion for Summary Judgment by concluding that the statements demonstrating age bias did not rise to the level of direct evidence of age discrimination.

"Assignment of Error No. 2:

"The trial court erred in granting Defendant-Appellee's Motion for Summary Judgment by ignoring substantial indirect evidence of age discrimination.

"Assignment of Error No. 3:

"The trial court erred in granting Defendant-Appellee's Motion for Summary Judgment by deciding numerous genuine issues of material fact which can only be decided by the fact finder at trial.

"Assignment of Error No. 4:

"The trial court erred in rejecting Appellants' statistical evidence of discrimination."

In their first assignment of error, appellants contend that the trial court erred by granting Phoenix's motion for summary judgment and by concluding that there was no direct evidence of age discrimination.

Summary judgment is appropriate where (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds construing the evidence in favor of the nonmoving party could reach but one conclusion, which is adverse to the nonmoving party. Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881, 883-884; Civ.R. 56(C). "A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095,, 1099, citing Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273-274. Thus, in response to a properly supported motion for summary judgment, the nonmoving party must set forth specific facts which demonstrate that there is a genuine issue of material fact for trial in order to avoid summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 273-274; Civ.R. 56(E).

R.C. 4112.02(A) states that it is an unlawful discriminatory practice for an employer to discriminate against an employee or potential employee on the basis of that person's age. With respect to an action brought pursuant to R.C. 4112.02(A), a party can support a claim of age discrimination by presenting either direct or indirect evidence of such discrimination. Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 505, 575 N.E.2d 439, 442-443. ³ Within the context of direct evidence, "isolated and ambiguous statements * * * are too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination." LaPointe v. United Autoworkers Local 600 (C.A.6, 1993), 8 F.3d 376, 380, quoting Gagne v. Northwestern Natl. Ins. Co. (C.A.6, 1989), 881 F.2d 309, 314.

Appellants testified in their depositions that they believe that they were discriminated against on the basis of their age because they are two of the three oldest employees who were laid off and not recalled by Phoenix. ⁴ As direct evidence of age discrimination, Stair testified regarding an incident where an officer of Phoenix made an age-based remark toward him. Specifically, Stair stated that on one occasion before he was laid off, he and another employee, Bob Gehres, were talking or may have been "fooling around" in the hallway at work. Stair related that Ray Steinher, Phoenix's managing partner, walked by and said, referring to Stair, "Don't hit him, Bob, he's an old man. He's nothing but an old man." Stair testified that he did not reply to Steinher's comment, but told Gehres that "I think I'm in better shape than he is."

Stair further testified that he is not aware of any other age-related comments or actions made by Phoenix officials which would indicate that he was laid off because of his age. In fact, Stair testified that Phoenix informed him that he was laid off because the company was experiencing a lack of work. Miller testified that he was not aware of any comments made by Phoenix management or supervision which would indicate that decisions concerning employees who would be laid off and recalled were motivated by the age of the employees.

In his response to Phoenix's motion for summary judgment, Stair submitted an affidavit in which he states that during his employment with Phoenix, he was repeatedly referred to as "pop" and "old timer" by other employees and supervisors. ⁵ However, in his deposition, which occurred before Phoenix submitted its motion for summary judgment, Stair described only the one age-based remark made by Steinher as direct evidence in support of his age discrimination claim. In addition, when specifically asked on several occasions during the deposition whether any other comments regarding his age had ever been made by Phoenix employees or management, Stair replied in the negative.

This court has previously held that "a party cannot defeat a motion for summary judgment by creating an issue of material fact in his affidavit which contradicts and is inconsistent with his prior sworn testimony." Capital Fin. Serv., Inc. v. Hibbard (Oct. 9, 1995), Butler App. No. CA95-04-079, unreported, at 11, 1995 WL 591247. See, also, Gagne, 881 F.2d at 315; Wyatt v. Ohio Dept. of Transp. (1993), 87 Ohio App.3d 1, 6, 621 N.E.2d 822, 826. Because Stair's affidavit is inconsistent with his prior deposition testimony, we find that the affidavit does not constitute competent evidence which would support his allegation of age discrimination. See Gagne, 881 F.2d at 315. See, also, Capital Fin. Servs.

After carefully reviewing the record, we find that the direct evidence of age discrimination presented by appellants is insufficient to support their age discrimination claim. Steinher's age-based comment made to Stair is merely an isolated and ambiguous remark that was not made in connection with the February 20, 1995 layoff. See LaPointe, 8 F.3d at 380; Carpenter v. W. Credit Union (C.A.6, 1995), 62 F.3d 143, 145. The remark as related by Stair, therefore, is insufficient to create a genuine issue of material fact that would preclude summary judgment in favor of Phoenix. See Dresher, 75 Ohio St.3d at 293, 662 N.E.2d at 273-274. Accordingly, appellants' first assignment of error is overruled.

In their second assignment of error, appellants contend that the trial court erred by granting Phoenix's motion for summary judgment and by ignoring indirect evidence of age discrimination.

Absent direct evidence of age discrimination, a...