Ullmann v. Ohio Bur. of Jobs & Family Serv.
| Decision Date | 17 December 2002 |
| Docket Number | No. 2001-06941.,2001-06941. |
| Citation | 2002 Ohio 7404,121 Ohio Misc.2d 81,782 N.E.2d 185 |
| Parties | ULLMANN v. OHIO BUREAU OF JOBS AND FAMILY SERVICES, f.k.a. Ohio Bureau of Employment Services. |
| Court | Ohio Court of Common Pleas |
Victoria E. Ullmann, pro se.
Betty D. Montgomery, Attorney General, Matthew J. Lampke and Larry Y. Chan, Assistant Attorneys General, for defendants.
{¶ 1} Plaintiff filed this action against defendant alleging age discrimination in violation of R.C. 4112.02. The case was tried to the court on the issue of liability.
{¶ 2} Plaintiff was hired by defendant, Ohio Bureau of Employment Services ("OBES"),1 in May 1988. She began as an unclassified Attorney 4. In 1990, her position title changed to that of unclassified Attorney 3; however, her duties remained the same. The change was made as a result of a "class modernization." On July 18, 1992, plaintiff reached her 40th birthday. She maintains that OBES thereafter began to severely limit her job responsibilities. On January 8, 1993, she received written notice that her employment as an Attorney 3 would be terminated as of January 22.
{¶ 3} Plaintiff appealed the termination to the State Personnel Board of Review ("SPBR"), alleging that her position had in fact been "classified" and that the proper procedures for her removal had not been followed. After hearing, the SPBR determined that plaintiff should have been considered a classified civil servant. It was further held that she had been overclassified as an Attorney 3 and that her proper classification was that of an Attorney 2. Based upon the recommendation of the administrative law judge, the SPBR subsequently issued an order directing OBES to choose from among four options available under Ohio Adm.Code 123:1-3-01(O) when an employee overclassification has been discovered. OBES chose the option of abolishing plaintiff's position. Plaintiff was then served with written notice, dated November 2, 1993, stating that the Attorney 3 position was being abolished for reasons of efficiency, and because there was no alternative classification into which she could be placed, she would be laid off as of November 19. She received the notice shortly before the layoff date and never actually returned to work.
{¶ 4} Plaintiff did not appeal the SPBR decision. However, on November 10, 1993, she filed an appeal challenging the abolishment of her position. On December 8, 1994, the SPBR affirmed the abolishment on the grounds that it was based upon OBES's reorganization of legal staff. Plaintiff appealed that SPBR decision to the Franklin County Court of Common Pleas and subsequently to the Tenth District Court of Appeals; both affirmed the job abolishment.
{¶ 5} Plaintiff is now before this court contending that the job abolishment was a mere pretext for age discrimination. Plaintiff argues that she was replaced by Kathy Ferguson, a woman in her early thirties, who was given the title of Attorney 4, but performed duties no different from those that plaintiff had as an Attorney 3. Further, plaintiff maintains that when Ms. Ferguson was hired, she had only 5 years of prior legal experience, less than 3 years of which were in Ohio, and that she had no experience in state government whatsoever. By contrast, plaintiff at the time had 15 years of legal experience, including service with another state agency and in private practice. Plaintiff also noted that the only other Attorney 3 employed at the time of the abolishment was also over the age of 40 and that, after the abolishment, all of the remaining OBES legal staff were under 40 years of age. Finally, plaintiff contends that OBES personnel lied under oath at the SPBR hearing and subsequent proceedings in order to obtain an affirmance of the Attorney 3 job abolishments. In her opinion, reorganization and efficiency were not the true reasons for her termination, and OBES later did an "about-face" when it began to disparage her abilities, arguing that she was not qualified for the Attorney 4 position.
{¶ 6} Age-discrimination cases brought in state courts are to be construed and decided in accordance with federal guidelines and requirements. Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146, 147, 6 OBR 202, 451 N.E.2d 807. A plaintiff may establish a prima facie case either by direct evidence or by the indirect method set forth 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, In this case, plaintiff presented no direct evidence of age discrimination. However, under McDonnell Douglas, an inference of discriminatory intent may be drawn where plaintiff establishes that she (1) was at least 40 years old at the time of the alleged discrimination, (2) was subjected to an adverse employment action, (3) was otherwise qualified for the position, and (4) was replaced by a substantially younger applicant. Burzynski v. Cohen (C.A.6, 2001), 264 F.3d 611, 622. Additionally, in the case of age discrimination, it must be shown that age was the motivating factor for the adverse employment action. Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 575 N.E.2d 439.
{¶ 7} According to OBES, plaintiff cannot establish a prima facie case because she was not "replaced" by a substantially younger person. Rather, her job was abolished and a person who happened to be younger was hired in a different classification. Defendant maintains that the responsibilities of the Attorney 4 differ significantly from those of an Attorney 3. For example, the Attorney 4 position included management responsibilities, signature authority in the absence of Chief Legal Counsel, and inclusion in policy planning and development decisions. The Attorney 3 position was essentially that of a predisciplinary hearing officer who also reviewed contracts, grants, and leases. Further, OBES argued that the issue of whether the abolishment was valid has been determined by the Franklin County Court of Common Pleas and the Tenth District Court of Appeals. Thus, it is its opinion that the doctrine of res judicata precludes relitigation of that matter.2 If it were to be accepted that the abolishment was valid and that plaintiff was not replaced by a younger person, her claim must fail.
{¶ 8} As a result of its belief that plaintiff cannot establish a prima facie case of age discrimination, OBES has also argued that plaintiff's case is essentially a claim of failure to promote under the Age Discrimination and Employment Act ("ADEA"), Section 621, Title 29, U.S.Code. Accordingly, evidence was presented to refute that claim. Further, to the extent that the validity of the job abolishment is in question, OBES presented evidence to substantiate that its legal staff was reorganized in a legitimate effort to maximize efficiency and reduce costs.
{¶ 9} This court does not agree that plaintiff is alleging a failure to promote. Indeed, plaintiff insisted in her opening, closing, and rebuttal arguments that her...
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State ex rel. Ullmann v. Hayes, 2004-0718.
...The Court of Claims rejected Ullmann's claim and rendered judgment in favor of the state agency. Ullmann v. Ohio Bur. of Jobs & Family Servs., 121 Ohio Misc.2d 81, 2002-Ohio-7404, 782 N.E.2d 185. The court of appeals affirmed. Ullmann v. Ohio Bur. of Job & Family Serv., Franklin App. No. 03......