Opinion
No. 90-0285.
Decided November 15, 1990.
Watkins, Bates, Carey McHugh, John J. McHugh III and Myrna A. Shuster, for plaintiff.
Connelly, Soutar Jackson, William M. Connelly and Kevin E. Joyce, for defendant.
I
James Melms instituted this age discrimination claim against his former employer, Society Bank Trust ("the bank"), claiming the bank unlawfully terminated his employment as a production control scheduler on April 14, 1989 because of his age. He claims that the bank violated R.C. 4101.17(A), Ohio's age discrimination and employment statute, which provided in pertinent part:
"No employer shall * * * discharge without just cause any employee between the ages of forty and seventy 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."
The bank has denied the allegations, raising as affirmative defenses the failure to state a claim and failure to mitigate damages. The bank also has filed a motion for summary judgment, relying on deposition testimony, particularly deposition testimony of plaintiff James Melms taken August 20, 1990. Melms responded to the motion with his own affidavit and memorandum.
To prevail in an action of this type, the Ohio Supreme Court has detailed what a plaintiff-employee must demonstrate:
"* * * (1) that he was a member of the statutorily-protected class, (2) that he was discharged, (3) that he was qualified for the position, and (4) that he was replaced by, or that his discharge permitted the retention of, a person not belonging to the protected class. Defendant-employer may then overcome the presumption inherent in the prima facie case by propounding a legitimate, nondiscriminatory reason for plaintiff's discharge. Finally, plaintiff must be allowed to show that the rationale set forth by defendant was only a pretext for unlawful discrimination." Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146, 6 OBR 202, 451 N.E.2d 807, paragraph one of the syllabus.
In its motion for summary judgment, the bank contends first that Melms is unable to prove a prima facie case and second, even if there is a prima facie case, a reduction in the bank's work force was the legitimate nondiscriminatory reason for Melms' discharge. The bank argues it is entitled to judgment in its favor upon undisputed facts. We must first see if Melms has established a prima facie case.
II
James Melms was forty-eight years old when he was terminated from employment with the bank on April 14, 1989 as production control scheduler. The parties cannot contest that Melms is within the statutorily protected class (that is, over the age of forty). On the second point, being whether Melms was "discharged without just cause" within the meaning of R.C. 4101.17(A), the bank relies on Baurichter v. Addyston (1986), 31 Ohio App.3d 121, 31 OBR 208, 509 N.E.2d 80, to say that Melms was not terminated but rather his position was eliminated. Melms, however, directs attention to Paragraph No. 4 of the bank's Answer where defendant specifically admitted that plaintiff was "discharged from his employment with Trustcorp Bank, Ohio" and further admitted, in response to request for Admission No. 2, that as of April 14, 1989 plaintiff was "discharged" from employment. Viewing the evidence most favorably for the plaintiff as it must, the court finds sufficient evidence of the first two elements of an employment discharge action.
The parties do not seriously quarrel over the third element, being Melms' qualification for his position. They do differ over whether he was replaced by someone not belonging to the protected class or whether someone younger was retained as a result of his discharge.
Melms admits he was never replaced but that his duties were simply distributed among others in the department. (Answer to plaintiff's Interrogatory No. 10; Melms' deposition, page 11.)
In opposing the motion for summary judgment, however, Melms suggests by affidavit that his discharge permitted retention of others not belonging to his protected class. Thus, he claims he performed duties not substantially different from those of the problem resolution specialist or problem resolution analyst and yet these individuals were retained. Melms also contends that three other individuals under age forty remained employed in the production department after his termination.
According to Melms, the mere fact that there were others under age forty who remained after his termination constitutes a prima facie case of age discrimination. This is not the law, however. The various federal age discrimination cases cited from the Sixth Circuit are helpful in determining this Ohio action. See, e.g., Ackerman v. Diamond Shamrock Corp. (C.A.6, 1982), 670 F.2d 66; LaGrant v. Gulf Western Mfg. Co. (C.A.6, 1984), 748 F.2d 1087. Mere speculation does not supply evidence of a prima facie case of age discrimination. In Ackerman, for example, plaintiff's position was eliminated and his duties were divided between younger employees who remained in the department. The Ackerman court found this procedure to constitute a legitimate business decision rather than proof of discrimination. In LaGrant, the plaintiff could not defeat a summary judgment motion by speculating that the lower salary of the employee assuming his duties was the reason for his termination. Nor can a plaintiff's statement that he was terminated because of his age be enough to refute a motion for summary judgment. Locke v. Commercial Union Ins. Co. (C.A.6, 1982), 676 F.2d 205. Age difference between an employee terminated during an economic cutback and a retained employee who assumes those duties does not establish a prima facie age discrimination case either. Sahadi v. Reynolds Chemical (C.A.6, 1980), 636 F.2d 1116.
Melms frankly admits in this case that he does not know why his employment was terminated. (Melms deposition, page 11.) He knows that the bank did not hire someone as production control scheduler in his place but that his duties were distributed among other people.
The production department no longer exists. (Melms deposition, page 14.) His claim of age discrimination is based only upon his opinion. When asked why he held that opinion, Melms responded:
"Well, I had been there for thirty years. The pension had to be eating into their pocket probably. The SIP plan was getting higher and higher they didn't want to invest anymore money." (Melms deposition, page 12.)
Melms acknowledged he started his retirement with the company in 1990 and now receives a monthly pension benefit. (Melms deposition, page 14.)
The bank offers the deposition of Lee Allen, the information systems officer at the time Melms was terminated, to establish that Melms' position as production control scheduler was eliminated for economic reasons as a reduction in force. From pages 29 through 38 of Allen's deposition the reasons for Melms' termination were discussed:
"Q. From the information that has been provided, we've been told that the decision to, which you call, `eliminate the position' was made pursuant to a company-wide directive to reduce the work force, is that right?
"A. It was coupled with a request to reduce the budget for the coming year, being '89, and part of the way to achieve that was to reduce the work force.
"* * *
"Q. Do you know how the cost cutting was to be allocated among the various divisions and departments of the bank?
"A. No, I do not.
"Q. All you know is that you were told by Mr. Braun that there was a certain dollar amount that you had to cut out of your budget?
"A. Yes." (Allen deposition, pages 32-33.)
"Q. So I take it then in terms of attempting to discharge your responsibility, you had a number to meet, and you had certain component costs, and the task was to be able to eliminate non-essential costs to meet the targeted number?
"A. That is true." (Allen deposition, page 34.)
"Q. At the time that you made your decision or were participating in those decisions, were you aware of legislation that prohibited the consideration of age as the determining factor in deciding to terminate an employee's position?
"A. I still could not quote a particular law, but I understand that age is not a criteria [ sic] for eliminating positions." (Allen deposition, page 35.)
"Q. At the time that the decision was made to affect Mr. Melms or his position, were you aware of his age?
"A. Yes. Not a specific age, but I knew the tenure that he had with the company.
"Q. Okay. You knew at that point that he was over 40?
"A. Yes." (Allen deposition, page 36.)
"Q. Was the decision to affect Mr. Melms based in any way upon an evaluation of his performance?
"A. No, I think it was more a case of a review of what can we get along without, and the scheduler position seemed to be the one that could most readily be absorbed by other people." (Allen deposition, page 38.)
Melms offers nothing to contradict the bank's explanation. There simply is no evidence to say Melms' age had anything to do with his termination decision.
When the record is looked at most favorably from the point of view of plaintiff James Melms, there is not enough to show a prima facie case of unlawful age discrimination within the meaning of Barker v. Scovill, Inc., supra. There is no evidence that the bank considered age as a factor at all in his termination; no evidence that any bank employees made derogatory statements about plaintiff's age or abilities; no evidence that the bank used reduction in force as an excuse or as a pretext to cover discriminatory treatment of older workers.
The Age Discrimination in Employment Act and its Ohio counterpart do not guarantee lifetime employment for individuals over forty. They simply guarantee one will not be unfairly treated because of age. When all issues of fact are resolved in favor of plaintiff, because there is no prima facie case, defendant bank is entitled to prevail on its motion for summary judgment. Applying the standard of Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47, and Civ.R. 56(C), the court will grant defendant's motion.
JUDGMENT ENTRY
It is ORDERED that defendant Society Bank Trust's motion for summary judgment is GRANTED. Judgment is entered in favor of defendant Society Bank Trust and against plaintiff James Melms on the complaint. The parties are ORDERED to bear their own costs.
Reporter's Note: An appeal to the Lucas County Court of Appeals (case No. L-90-397) was dismissed on March 25, 1991.