Opinion
Nos. 99AP-352, 99AP-354 and 99AP-355.
Rendered on December 28, 1999.
Appeal from the Franklin County Court of Common Pleas.
JUDGMENT: AFFIRMED.
Vorys, Sater, Seymour Pease, Thomas M. Tarpy and Michael Donaldson, for appellant.
Betty D. Montgomery, Attorney General, and Patrick M. Dull, for appellee Ohio Civil Rights Commission.
On February 18, 1994, Willard Z. Perry, Gerald H. Wise and Robert L. Groves ("complainants") filed "charge" affidavits with the Ohio Civil Rights Commission ("commission") wherein they alleged their former employer, Lennox Industries, Inc. ("Lennox"), discriminated against them on the basis of their ages. After investigating the matter and finding probable cause, the commission issued three complaints alleging Lennox denied transfers to complainants because of their ages.
On April 17, 1996, Lennox filed a motion to dismiss contending the commission lacked jurisdiction because the charges were untimely filed. On May 28, 1996, a hearing examiner denied Lennox's motion to dismiss. A hearing was held before a hearing examiner. On October 31, 1997, the hearing examiner issued findings of facts, conclusions of law and recommendations. The hearing examiner found, in part, as follows. In 1993, Lennox operated a manufacturing plant in Columbus, Ohio, and produced residential and commercial cooling systems. In May 1993, Mr. Perry was 53 years old and had been working at Lennox for 34 years, Mr. Wise was 49 years old and had been working at Lennox for 27 years, and Mr. Groves was 50 years old and had been working at Lennox for 27 years. Mr. Perry, Mr. Wise and Mr. Groves had been production supervisors for 17, 5 and 20 years, respectively.
On May 7, 1993, Lennox advised its employees that it would be closing its Columbus plant and consolidating its operations at a facility in Marshalltown, Iowa. Lennox anticipated that there would be a need to transfer some of the Columbus employees to Marshalltown. On May 8, 1993, Lennox held a meeting in order to decide which Columbus employees would be offered transfers to Marshalltown. Lennox considered all of the Columbus production supervisors as potential transferees. Each production supervisor was rated 1, 2 or 3, with 1 being the highest rating.
Based upon these ratings, 10 persons were offered transfers. One such person was 49 years old and another, Tommy Jarrell, was 55 years old. Mr. Jarrell received the same rating as the complainants, the lowest rating; however, he was offered a transfer because he was the only person with copper fabrication experience. The remaining eight persons offered transfers were all younger than the complainants, and six of these persons were below the age of 40.
The hearing examiner concluded that the alleged discriminatory act was the failure to transfer complainants to Marshalltown. The hearing examiner concluded that the commission met its burden of establishing a prima facie case of discrimination, Lennox articulated legitimate, nondiscriminatory reasons for its actions, and the commission met its burden of showing that the actual reason for Lennox's action was discriminatory in nature.
On January 29, 1998, the commission issued a final order incorporating the hearing examiner's report in full. On February 24, 1998, Lennox appealed to the Franklin County Court of Common Pleas. On January 27, 1999, the common pleas court rendered a decision. The court affirmed the commission's finding of age discrimination and reversed the commission's order regarding the award of front pay, indicating that such award should have been limited to three years from the date of their layoffs. A judgment entry was journalized on February 24, 1999. Lennox (hereinafter "appellant") has appealed to this court, assigning the following as error:
First Assignment of Error:
The Court of Common Pleas erred as a matter of law when it held that complainants' age discrimination claims were not barred the Ohio age discrimination statute of limitations.Second Assignment of Error:
The Court of Common Pleas erred as a matter of law when it held that the complainants met their burden of proving that they were not selected for transfer offers due to age discrimination.
In its first assignment of error, appellant contends the common pleas court erred in concluding the claims were not time-barred. R.C. 4112.05(B)(1) states, in pertinent part:
Any person may file a charge with the commission alleging that another person has engaged or is engaging in an unlawful discriminatory practice. * * * [T]he charge * * * shall be filed with the commission within six months after the alleged unlawful discriminatory practice was committed.
Appellant asserts that the complainants were notified in writing within days of the May 8, 1993 meeting that they had not been selected for transfer offers. Appellant also points out that it was undisputed that the complainants were aware at that time that several of the persons offered transfers were under the age of 40. Therefore, appellant contends that the charges filed with the commission ("appellee") on February 18, 1994 were untimely as they were not filed within six months of the May 1993 notice.
As indicated above, appellant had filed a motion to dismiss the charges as being untimely. The hearing examiner denied this motion, finding there was a possibility that complainants could have been offered employment after the May 1993 notice, and the earliest date the statute began to run was September 1993. Hence, the charges were timely filed in February 1994. The common pleas court essentially agreed with the hearing examiner's review of the relevant case law and found the decision was supported by reliable, probative and substantial evidence. For the reasons that follow, we affirm the common pleas court's conclusion that the charges were filed within the applicable statute of limitations.
We note first that federal caselaw interpreting Title VII of the Civil Rights Act of 1964 is generally applicable to cases involving alleged violations of R.C. Chapter 4112. Plumbers Steamfitters Commt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St.2d 192, 196. The leading case setting forth the general analysis to be applied when determining whether a discrimination charge has been timely filed is Delaware State College v. Ricks (1980), 449 U.S. 250, 101 S.Ct. 498. In order to determine the timeliness of a charge, the court must identify precisely the unlawful employment practice. 449 U.S. at 257. In Ricks, the plaintiff was denied tenure and on June 26, 1974, the college trustees told the plaintiff, in conformance with the policy regarding junior faculty members who are denied tenure, that he would be offered a one-year terminal contract which expired on June 30, 1975. Id. at 252-253. The plaintiff argued the limitations period began to run when the terminal contract expired. However, the Supreme Court noted that the complaint did not allege discriminatory discharge, rather, it alleged denial of tenure. Id. at 257-258.
The Supreme Court stated that mere continuity of employment, without more, is insufficient to prolong the life of an employment discrimination claim. Id. at 257. The proper focus is upon the time of the discriminatory act, not the time at which the consequences of the act become the most painful ( i.e. when employment actually terminates). Id. at 258. In Ricks, the only alleged discrimination occurred, and the statute of limitations began to run, at the time the tenure decision was made and communicated to the plaintiff. Id. The Supreme Court noted that discrimination complaints can present widely varying circumstances, and application of the general principles set forth in the opinion necessarily must be made on a case-by-case basis. Id. at fn. 9.
The Supreme Court of Ohio addressed Ricks in Bd. of Edn. v. Civil Rights Comm. (1981), 66 Ohio St.2d 252 (" Lordstown"). In Lordstown, the plaintiffs alleged the nonrenewal of their teaching contracts was discriminatory. The plaintiffs were informed of such nonrenewal in April 1975, but their contracts did not expire until August 31, 1975. Id. at 254. The Supreme Court of Ohio distinguished Ricks, recognizing that in Ricks the discriminatory act was the denial of tenure while the discriminatory act before it was the nonrenewal of teaching contracts. Id. at 255. The Supreme Court of Ohio held that the statute of limitations began to run when the teaching contracts expired. Id. at paragraph one of the syllabus. In so holding, the Supreme Court of Ohio quoted State ex. rel. Local Union 377 v. Youngstown (1977), 50 Ohio St.2d 200, 203-204:
`Normally, a cause of action does not accrue until such time as the infringement of a right arises. It is at this point that the time within which a cause of action is to be commenced begins to run. The time runs forward from that date, not in the opposite direction, and thus when one's conduct is not presently injurious a statute of limitations begins to run against an action for consequential injuries resulting from such act only from the time that actual damage ensues.' Lordstown at 256.
The Supreme Court of Ohio concluded that the final discriminatory act occurred on August 31, 1975 when the teaching contracts expired, and the plaintiffs' employment terminated. Id. The Supreme Court affirmed its ruling in Lordstown in Cincinnati Metro. Hous. Auth. v. State Emp. Relations Bd. (1990), 53 Ohio St.3d 221, 226-227. Based on the holding in Lordstown, the Supreme Court of Ohio stated that a statute of limitations begins to run when an unlawful act occurs, not upon advance notice of such act. Id. at 227.
In the case at bar, the unlawful employment practice complained of was, in essence, the failure of appellant to offer transfers to complainants. Appellant asserts that the complainants were given notice of such in May 1993. Indeed, during the week of May 7, 1993, complainants learned that eleven production supervisors were offered transfers, and some of these persons were younger than the complainants. On May 14, 1993, complainants were given written notices that stated their positions were being eliminated as a result of the closing of the Columbus facility. Under Ricks, it could be argued that the statute of limitations began to run in May 1993, when appellant made the initial decision on who would be offered transfers, and such decision did not include complainants. However, and as indicated above, the hearing examiner found there was a possibility that complainants could be offered transfers even after the initial transfer offers were made and, therefore, the statute of limitations did not begin to run in May 1993.
In Zebedeo v. Martin E. Segal Comp., Inc. (1984), 582 F. Supp. 1394, 1411, the district court, citing Ricks, stated that the statute of limitations period begins to run at the time the decision to terminate is made and communicated to the grievant. However, notice of the employer's intent to terminate the Zebedeo plaintiff was "clouded * * * by the ambiguous verbal intimations" of the employer that the plaintiff might be transferred rather than terminated. Id. The court noted that under similar equivocal circumstances, courts have required an explicit letter of termination as the triggering event for commencement of the statute of limitations. Id.
In Poindexter v. Northrop Corp. (1990), 728 F. Supp. 1362, 1365, citing Ricks, the court stated that the focus is on the discriminatory acts themselves, not the consequences of such acts. The court stated that the plaintiff had to demonstrate the existence of discriminatory conduct occurring within the limitations period. Id. See, also, Berarducci v. Oscar Mayer Foods Corp. (Aug. 17, 1984), Erie App. No. E-84-2, unreported, at 8-9 (an age discrimination claim accrues when the discriminatory act or practice occurs, not when adverse consequences or other facts resulting therefrom manifest themselves). If the only events within the period were the delayed but inevitable consequences of acts committed prior to the limitations period, the claim is time-barred. Poindexter at 1365.
In the case at bar, the hearing examiner found the following. On May 12, 1993, Mr. Groves had a meeting with Steve Wolfe, a member of appellant's human resources department, in order to find out why he was not considered for a transfer. Mr. Groves and Mr. Wolfe discussed Mr. Grove's qualifications and the selection process. On May 14, 1993, Mr. Groves learned that three production supervisors turned down offers to relocate to Marshalltown, and those positions had not been offered to anyone else.
In June 1993, a memorandum written by appellant's vice-president of manufacturing was widely circulated throughout the plant, and complainants were aware of its contents. The memorandum contained organizational charts for the Marshalltown facility. The chart for the production department indicated that there were five production supervisor positions open in "heating" and ten production supervisor positions open in "cooling." The chart also contained a list of production supervisors to be assigned. All seven of the persons listed were employed by appellant in Columbus, and six of the seven were younger than the complainants.
Sometime after July 4, 1993, Mr. Wise was told by his immediate supervisor that there would be additional offers for transfers and other openings for production supervisors in Marshalltown. After June 7, 1993, appellant continued to offer transfers to production supervisors at the Columbus facility. In September 1993, Edwin Bickar, age 46, was offered a position. Mr. Groves was considered for a production supervisor position in Marshalltown and was interviewed in November 1993. Throughout this period, the complainants met periodically to discuss their experiences and incidents they had heard about which related to the plant closing and the transfer of employees, including production supervisors.
Based on these facts, the common pleas court did not err as a matter of law in affirming the hearing examiner's determination that the charges were timely filed. There was a possibility that other transfer offers would be made. It cannot be said, as stated in Poindexter, that after the May 1993 notice letters, the complainants' terminations were inevitable. We note that the alleged discriminatory acts here were the denials of transfer. The complainants may have been told expressly on May 14, 1993 that their positions were being eliminated; however, whether or not they would be offered transfers was uncertain. Hence, the discriminatory act complained of — the continued failure to offer transfers — occurred within the limitations period. See Anderson v. Zubieta (1999), 180 F.3d 329, 336 (distinguishing Ricks from a situation where plaintiffs seek relief not for the employer's initial announcement of a discriminatory policy, but for the employer's continued application of such policy). Therefore, the charges were timely filed.
Accordingly, appellant's first assignment of error is overruled.
In its second assignment of error, appellant contends the common pleas court erred in finding appellee met its burden of proving age discrimination. The common pleas court must affirm a finding of discrimination under R.C. Chapter 4112 if the finding is supported by reliable, probative and substantial evidence. Ohio Civ. Rights Comm. v. Case W. Res. Univ. (1996), 76 Ohio St.3d 168, 177. The role of this court is more limited. An appellate court determines whether the common pleas court abused its discretion in finding there was reliable, probative and substantial evidence to support appellee's order. Id. A common pleas court abuses its discretion when its decision is clearly erroneous, i.e., when it misapplies the law to undisputed facts. Id.
Both the hearing examiner and the common pleas court found appellee failed to set forth direct evidence of age discrimination. Therefore, the general framework as set forth in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792 is applicable to the determination of whether discrimination was shown. See Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 504-505. In order to establish a prima facie case of age discrimination, the employee must demonstrate (1) that he or she was a member of the statutorily-protected class, (2) that he or she was discharged, (3) that he or she was qualified for the position, and (4) that he or she was replaced by, or the discharge permitted the retention of, a person not belonging to the protected class. Mauzy v. Kelly Services, Inc. (1996), 75 Ohio St.3d 578, 582. The employer then may overcome the presumption inherent in the prima facie case by propounding a legitimate, nondiscriminatory reason for the employee's discharge. Id. The employee then must show that the reason articulated by the employer was only a pretext for unlawful discrimination. Id.
The case at bar can be considered a reduction-in-force situation. Therefore, the analysis is slightly different from the McDonnell Douglas framework. The prima facie case is established by showing (1) the employee is within the statutorily-protected class, (2) the employee was qualified for the position, (3) the employee was discharged, and (4) additional direct, circumstantial or statistical evidence tending to indicate the employer singled out the employee for discharge for impermissible reasons. Ercegovich v. Goodyear Tire Rubber Company (1998), 154 F.3d 344, 350. A plaintiff satisfies the fourth prong by demonstrating that a comparable, non-protected person was treated better. Id.
We take the following facts, which the common pleas court accepted in essence, directly from the hearing examiner's report. On May 8, 1993, a meeting was held in order to determine which Columbus employees would be offered transfers to Marshalltown. This meeting was attended by John Ireland, the Columbus production manager, Bob Peterson, the Columbus plant manager, Tom Delaney, the Columbus human resources manager, Steve Wolfe and Bill Cors, appellant's corporate human resources representatives, Tim DeHaan, the Marshalltown plant manager, and Harry Bizios, vice-president of manufacturing.
All Columbus production supervisors were considered as potential transferees. Mr. Ireland, Mr. Delaney and Mr. Peterson rated each production supervisor on a scale from 1 to 3, with 1 being the highest rating. The ratings were supposed to be based on each candidate's people skills, communication skills, job knowledge in specific areas, and understanding of the principles of quality. Mr. Ireland presented his ratings first. The complainants were given the lowest rating, 3, by each of the raters. Hence, they were not offered transfers.
The following production supervisors were offered transfers: Joel Bagby, age 29, Terry Baughn, age 30, Karen Schuller, age 32, Carl Moore, age 35, Robert Aumiller, age 38, Scott Love, age 38, Charles Morris, age 42, Michael Ball, age 46, Dennis Powell, age 46, Michael Ditello, age 49, and Tommy Jarrell, age 55. Mr. Jarrell received the same rating as complainants; however, he was offered a transfer because he was the only person with copper fabrication experience. Subsequently, Edward Bickar, age 45, was offered a transfer.
Complainants had superior knowledge about the product, and their knowledge was better than that of many of the younger production supervisors who were offered transfers. Complainants had a good to excellent understanding of the principles of quality, and such understanding was better than that of the younger supervisors offered transfers. Complainants had good to excellent communication and people skills, and such skills were better than those of some of the younger production supervisors who were offered transfers.
Mr. Ireland, the lead decision-maker, made age-based remarks regarding transfers to Marshalltown. Specifically, Mr. Ireland commented that "maybe we need younger people in here." In addition, when asked why one of the complainants had not been offered a transfer, Mr. Ireland responded "[w]ell, we're not taking none of the old farts." A similar statement referring to "gray-haired old farts" was attributed to Mr. Ireland. Mr. Ireland denied making such statements; however, the hearing examiner found this testimony was not credible.
Appellant argues appellee failed to show discrimination was the reason the complainants were not offered transfers. However, given the above evidence, the common pleas court did not abuse its discretion in affirming appellee's order. Appellee clearly set forth a prima facie case of age discrimination. Complainants were members of the protected class, were qualified, were denied transfers and then terminated, and several non-protected persons were offered transfers. While the hearing examiner found appellant had articulated legitimate, nondiscriminatory reasons for its actions (appellant claimed complainants were in fact not qualified), the hearing examiner then concluded that appellee showed such reasons were pretext. The common pleas court did not abuse its discretion in finding this conclusion was supported by the law and by reliable, probative and substantial evidence.
In essence, the hearing examiner concluded that appellee proved its case based upon the comments made by Mr. Ireland and the evidence regarding complainants' qualifications compared to the qualifications of the younger supervisors who were offered transfers. Appellant contends the hearing examiner erroneously relied upon the testimony of co-workers and other personnel regarding complainants' qualifications. Appellant asserts that this testimony was irrelevant because complainants' qualifications were judged by supervisors, not co-workers. However, the hearing examiner specifically found that appellant's evidence regarding the qualifications of the younger supervisors was not credible. Specifically, the hearing examiner found appellant's assessment of the younger supervisors was "dishonest and insincere." Further, it is clear that the hearing examiner disbelieved appellant's stated reasons for not offering transfers to complainants.
Given the evidence, the common pleas court had to give due deference to the hearing examiner's resolution of any evidentiary conflicts, as he had the opportunity to observe the demeanor of the witnesses and weigh their credibility. See Plumbers Steamfitters Commt., supra, at 200, citing Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 111-112. Therefore, the common pleas court did not err in essentially agreeing with the hearing examiner's conclusions. Based on all of the foregoing, we find the common pleas court did not abuse its discretion in affirming the commission's order.
Accordingly, appellant's second assignment of error is overruled.
Having overruled each of appellant's assignments of error, the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
KENNEDY, J., concurs.
LAZARUS, P.J., dissents.
Because I disagree with the majority's holding in regard to the statute of limitations, I respectfully dissent.
According to the majority, the limitations period did not begin to run in May 1993 because there is evidence indicating that appellant informed those not originally selected (including claimants) that future transfers might be forthcoming and that, in fact, other transfer offers were made after the original May 1993 offers. Implicit in the majority's opinion are two possible conclusions: (1) that the alleged discriminatory acts against claimants lasted throughout the plant shut-down period, i.e., that the claims were timely because the period of discrimination ended only when the last transfer was offered, albeit not to the claimants; or (2) that the commencement of the running of the limitations period was tolled until well after the May 1993 selection process. I find that neither conclusion can be supported by the law or facts.
While the majority implies that numerous offers were made to Columbus production supervisors after June 7, 1993, the hearing officer specifically identified only one such offer, to Edwin Bickar, age 46, in September 1993. The hearing officers also found that claimant Groves interviewed for a supervisor position in November 1993, but the hearing officer did not indicate who, if anyone, was offered this position.
As to the first conclusion, the majority fails to recognize that the factual basis underlying claimants' age discrimination claims is limited to the original May 1993 transfer selections, and not any subsequent transfer decision. In fact, absent the comments of John Ireland (evidence that appellees appear to concede is alone insufficient to support a finding of age discrimination by appellant), the hearing officer's finding of discrimination is based solely on evidence related to the activities at the May 8, 1993 selection meeting — in particular, that those selected for transfer offers in that meeting were all (or nearly all) younger than the claimants and that many of those selected for transfers in that meeting were less qualified than the claimants. The trial hearing officer made no specific findings of fact demonstrating age discrimination in any subsequent transfer decision. In sum, the claimants' age discrimination claims relate only to a discrete incident occurring more than six months before the complainants filed their charges with the commission.
Likewise, the majority's second implicit conclusion ( i.e., that the running of the limitations period was tolled) is similarly unfounded. Citing Zebedeo v. Martin E. Segal Co., Inc. (1984), 582 F. Supp. 1394, the majority notes that the statute of limitations does not begin to run if the adverse employment decision is equivocal in nature. The majority then indicates that the transfer decisions at issue here were equivocal (and hence the statute of limitations did not begin to run) because it was uncertain whether the claimants would eventually be offered transfers. While I do not disagree with the general proposition that the statute of limitations does not begin to run until the alleged discriminatory employment action becomes unequivocal, I find that the rule is inapplicable here.
First, the facts here are clearly distinguishable from those in Zebedeo. In Zebedeo, the court found that the original, verbal communication to plaintiff of the employer's intent to terminate him was clouded by later, specific intimations to plaintiff that he might be transferred rather than fired. Id. at 1411. Thus, the court concluded that the statute of limitations did not begin to run until plaintiff received an explicit letter of termination. Id. ("Under similar equivocal circumstances, courts have required an explicit letter of termination as the triggering agent for commencement of the period of limitations.") Here, by May 14, 1993, all of the claimants had received an explicit letter of termination, and none of the claimants produced evidence that they had been personally singled out as a potential transfer offeree. Rather, the possibility of future transfer offers was made known to the Columbus supervisory employees in general.
Moreover, unlike in Zebedeo, the discriminatory employment decision in this case was not later made equivocal by the employer's subsequent actions. In Zebedeo, the alleged discriminatory employment decision was the employer's decision to terminate plaintiff. Thus, later comments by the employer contradicting the earlier decision, i.e., that plaintiff would not be terminated, made the original decision equivocal. Here, however, the discriminatory acts, as found by the hearing officer and as discussed above, were the decisions at the May 8, 1993 selection meeting to make initial transfer offers to the eleven production supervisors and not to the claimants. Nothing that appellant subsequently did or said conflicted with these original decisions. Transfers were offered (and as found by the hearing officer, unlawfully so) to eleven other supervisors. There was no evidence that appellant ever considered revoking or changing its decision to offer transfers to the eleven originally selected. In fact, even if the claimants eventually had been offered transfers, the discriminatory acts found by the hearing officers would still have occurred. In sum, there was nothing equivocal about the employment decisions found to have been discriminatory in this case.
Finally, case law clearly indicates that the mere possibility that future offers of employment may be forthcoming does not render an otherwise unequivocal employment decision equivocal and does not toll the running of the statute of limitations as to the originally discriminatory employment action. For example, the majority cites the United States Supreme Court opinion in Delaware State College v. Ricks (1980), 449 U.S. 250, 101 S.Ct. 498, for the general proposition that the statute of limitations accrues at the time of the discriminatory act. Significantly, however, the majority fails to note that the United States Supreme Court found that the plaintiff's discrimination claim accrued when he received notice that he would be terminated, even though the letter was equivocal in holding out the possibility that plaintiff might still receive tenure and thereby avoid termination. Id. at 259-262; 505-506.
Similarly, Janikowski v. Bendix Corp. (C.A.6, 1987), 823 F.2d 945, a case extensively relied upon by appellant is particularly applicable here. In that case, brought under the Federal Age Discrimination in Employment Act, Janikowski's supervisor informed him by letter that his employment with Bendix would be terminated in nearly a year unless he was unable to obtain a position elsewhere in the company. Id. at 946. Janikowski, like appellees here, argued that his cause of action did not accrue when he received notice of his termination because it was not definite and final, given the possibility that he could continue working elsewhere in Bendix. Id. at 947. Noting that the same argument was rejected by the United States Supreme Court in Ricks, the Sixth Circuit held that statute of limitations was not tolled as to Janikowski's age claim. As stated by the Sixth Circuit, "employment decisions which are `somewhat ambiguous with respect to finality' still trigger the statute of limitations." Id. (Quoting Kessler v. Board of Regents (C.A.6, 1984), 738 F.2d 751, 755).
I find no meaningful distinction between Ricks, Janikowski, and this case. As such, the statute of limitations on claimants' discrimination claims arising out of the May 1993 selection decisions began to run at that time. For the foregoing reasons, I would sustain appellant's first assignment of error.