Opinion
Case No. C2-02-290
February 28, 2003
OPINION AND ORDER
This matter is before the Court on the Motion for Summary Judgment filed by Defendants Titanium Metals Corporation, Michael Kearns, Gary Blosser and James Pieron. For the reasons that follow, the Court sua sponte reconsiders its order on Plaintiff's Motion to Certify, and Defendants' Motion for Summary Judgment is held in abeyance pending a decision by the Supreme Court of Ohio on the certified question.
I.
The following facts are undisputed. On April 23, 1997, Plaintiff; Lawrence W. Weller, applied to work at Defendant Titanium Metals Corp. ("Defendant" or "Timet") as the Manger of the Laboratory at the Toronto, Ohio plant. In May of 1997, Defendant hired Plaintiff as its Manager of Laboratory, Nondestructive Testing and Inspection. This position involved supervising employees who tested Timet products to ensure that they met customer and internal requirements, and required Plaintiff to arrange for subcontracting or outsourcing of various laboratory tests that could not be completed internally. (Weller Dep., at 61-64.)
In June of 1999, Plaintiff was promoted and his title changed to Manager of Laboratory, Nondestructive Testing and Quality Assurance. In this new capacity, Plaintiff continued to be responsible for all laboratory and inspection services and further assumed managerial responsibilities for the quality assurance functions. In addition to his former responsibilities,, Plaintiff began managing the quality assurance function in addition to his former duties of managing the laboratory and testing. (Weller Dep., at 98-99.) Accordingly, Plaintiff's promotion effectively made him responsible for the work that previously had been assigned to two managers. Plaintiff delegated about seventy-five (75) percent of the quality assurance duties to the Quality Assurance Supervisor, Nick Kaschak. (Weller Dep., at 130-31.)
In January 2000, Plaintiff received his annual review. During his evaluation, Plaintiff received a set of written goals for the measurement of his year 2000 performance. Then, in April 2000, Michael Kerns, Vice President of Quality and Technology, became Plaintiff's immediate direct line supervisor. (Weller Dep., at. 207.) On June 21, 2000, Kearns gave Plaintiff a second, additional set of performance goals.
By the time of his performance evaluation in January 2001, Plaintiff had not met all of the performance goals established by Kearns in late June/July 2000. (Weller Dep., at 221-40; Exh. 15; Kearns I Dep., at 178.) Kearns gave Plaintiff a performance summary that included both "fully proficient" and "needs improvement" ratings. Plaintiff disagreed with the evaluation and presented a detailed response to the appraisal contending that he had been measured for the entire year against goals which had been set in July. Further, Plaintiff noted that he was doing the work of two managerial employees without sufficient resources. (Weller Dep., at 253, Exh. 15.) Plaintiff was given new and specific performance goals and was informed that he would be evaluated after the first quarter in 2001. (Weller Dep., at 242-43.)
During a reorganization, some time before April 2001, Kearns interviewed Greg Judy, age forty (40) and Mike Volas, age forty-seven (47) for the position of Quality and Technology Manager. This new position was at a level between Plaintiff and Kearns. (Kearns Dep. II, at 43.) Kearns hired Volas for the position. Although Plaintiff hoped that Volas would relieve him of his quality assurance functions, Plaintiff's responsibilities did not change after Volas was hired. (Weller Dep., at 144.)
In May of 2001, Kearns performed a re-evaluation of Plaintiff's work performance. Plaintiff had admittedly failed to meet each and every goal and deadline that had been set for him following his annual performance evaluation. Kearns concluded that Plaintiff's work performance needed "significant improvement." (Pl. Mem. in Opp., at Exh. 13.) In response, Plaintiff again reiterated the same concerns that he had raised during his January 2001 appraisal and also asserted that he had expected to obtain some relief as a result of the hiring of the Quality and Technology Manager which had not occurred. (Pl's Mem. in Opp., Exh. 11.)
Sometime between May 11, 2001 and June 1, 2001, Kearns offered the position of Laboratory Manager to Greg Judy. Judy received the written offer of employment, which confirmed previous communications, via an e-mail dated June 1, 2001. This job, which encompassed Plaintiff's position, was never advertised or posted as vacant, and Timet neither took applications nor had any interviews for the position. (Judy Dep., at 20; Pl. Mem. in Opp., Exh. 14.) Judy accepted the position and began work on July 11, 2001.
On June 29, 2001, Plaintiff was advised that his employment had been terminated based on a review of his skills and recent performance. At the time of Plaintiff's termination, Defendant Pierson was the acting plant manager of the Toronto, Ohio plant and Defendant Blosser was the Human Resources Manger. Plaintiff was sixty (60) years old when he was terminated. He holds a Bachelor of Science degree with minors in Chemistry and Physics from The Ohio State University. Plaintiff also holds a Bachelor of Engineering degree from Youngstown State University.
Plaintiff originally filed his Complaint against Timet and three of its managers in the Court of Common Pleas of Jefferson County, Ohio alleging age discrimination in violation of state law. Defendants removed the case to this Court on diversity grounds, but the case was remanded. After Plaintiff's deposition, Defendant again removed the case. Because the Court determined that Plaintiff, an Ohio resident, had fraudulently joined Defendants Pierson and Blosser, also residents of Ohio, Plaintiff's second motion to remand was denied.
II.
On October 23, 2002, Plaintiff filed a Motion to Certify and For Leave to Respond to Summary Judgment. In it, Plaintiff asked the Court for an order certifying the following question to the Ohio Supreme Court:
Is the fourth prong of a prima facie case of age discrimination satisfied where a plaintiff proves that he was replaced by a person substantially younger than he even though his replacement was forty years old? O'Connor v. Consolidated Coin Caterers Corp. (1996), 517 U.S. 308.
The Court originally denied the Motion, indicating that Plaintiff had not demonstrated that a question of Ohio law may be determinative of the proceedings for which there is no controlling precedent in the decisions of the Supreme Court of Ohio. (Doc. #31.) The Court now reconsiders this previous Order. Upon thorough review of the parties' memoranda in support and in opposition of Defendants' Motion for Summary Judgment, the Court concludes that certification of a question to the Ohio Supreme Court is appropriate, and that there is a question of Ohio law that may be determinative of the proceeding for which there is no controlling precedent in the decisions of the Supreme Court of Ohio.
III.
A. Prima facie case of age discrimination under Ohio law
Defendants assert that Plaintiff cannot establish a prima facie case of age discrimination under Ohio law. Plaintiff does not assert that he has direct evidence of discrimination, although it is undisputed that Plaintiff was older than the other managers who replaced him. In the absence of direct evidence, Defendants assert that Plaintiff must present a prima facie case of discrimination by demonstrating (1) that he was a member of the protected class, at least forty years of age; (2) that he was discharged; (3) that he was otherwise 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. Barker v. Scovill, Inc., 6 Ohio St.3d 146, 451 N.E.2d 807, Syl. ¶ 1 (1983). Defendants first assert that Plaintiff cannot establish a prima facie case because he was not replaced by someone outside of his protected age class.
Ohio Revised Code § 4112.01(a)(15) provides that ". . . `age' means at least forty years old."
Generally, Ohio courts adopt federal case law in interpreting claims of employment discrimination brought under the Ohio Revised Code. See, e.g., Little Forest Med. Ctr. v. Ohio Civ. Rights Comm., 61 Ohio St.3d 607, 575 N.E.2d 1164 (1994). On April 1, 1996, the United States Supreme Court issued its decision in O'Connor v. Consolidated Coin Caterers Corporation, 517 U.S. 308, 313 (1996). In O'Connor, the Supreme Court modified the fourth element of a prima facie case of discrimination as established by McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) in the context of age-based claims arising under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 626. The Supreme Court modified the fourth element of the McDonnel Douglas model of indirect proof to include replacement by someone who is "substantially younger than the plaintiff" The Court determined that "[t]he fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age . . . . [T]he fact that an ADEA plaintiff was replaced by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case." O'Connor, 517 U.S. at 312.
Following O'Connor, on June 12, 1996, the Ohio Supreme Court decided Mauzy v. Kelly Services, Incorporated, 75 Ohio St.3d 578, 664 N.E.2d 1272 (1996), an age discrimination case brought under the Ohio Revised Code. In setting forth the elements of a prima facie case, the court referred to the O'Connor case and stated in a footnote that "[t]he fourth element for the establishment of the prima facie case set forth herein is questionable in light of the recent United States Supreme Court decision of O'Connor . . . ." Mauzy, 664 N.E.2d at 1276 n. 2.
Six months later, on December 11, 1996, the Supreme Court of Ohio issued a decision in another age discrimination case, Byrnes v. LCI Communication Holdings Company, 77 Ohio St.3d 125, 672 N.E.2d 145 (1996) (plurality opinion). In Byrnes, the court reiterated and cited to one of its previous decisions, Barker v. Scovill, Incorporated, 6 Ohio St.3d 146, 451 N.E.2d 807 (1983), as the applicable standard for the prima facie elements of age discrimination under Ohio law. Citing to Barker in Byrnes, the Supreme Court of Ohio defined the fourth element of a prima facie case of age discrimination under Ohio law to require the plaintiff to show that he or she "[w]as replaced by, or that his [or her] discharge permitted the retention of, a person not belonging to the protected class." Byrnes, 672 N.E.2d at 148.
Courts in Ohio reviewing the conflict in Mauzy and Byrnes have split as to whether to apply O'Connor to the fourth element of the prima facie case for age discrimination claims under Ohio Revised Code § 4112.02 et seq. Pasko v. American Nat'l Can Co., 998 F. Supp. 807, 811 (N.D. Ohio 1998) (determining that Barker still applies); Swiggum v. Ameritech Corp., No. 98AP-1031, 1999 WL 771022 (Ohio Ct.App. Sept. 30, 1999)(same); Coryell v. Bank One Trust Co., No. 02AP-191, 2002 WL 19800683 (Ohio Ct.App. Aug. 29, 2002) (same); but see Outzen v. Continental Gen. Tire, Inc., No. 19604, 2000 WL 141069 (Ohio Ct.App. Feb. 2, 2000) (adopting O'Connor); Bullock v. Totes, Inc. No. C-000269 (Ohio Ct.App. Dec. 22, 2000)(same). Moreover, this court has once before acknowledged the conflict among the state courts of appeals on this issue but felt compelled to determine that Barker is still the controlling precedent under Ohio law. McIntosh v. Stanley-Bostitch, Inc., 82 F. Supp. 775, 785-86 (S.D. Ohio 2000) (Marbley, J.)
In this case, the question squarely before the Court is whether Plaintiff; a sixty-year-old man, can establish a prima facie case of age discrimination Ohio Revised Code Section 4112.02 et seq. when he was replaced by two individuals, both of whom are technically within the protected class. This matter is determinative of the outcome of the case and calls for an interpretation of Ohio law for which the controlling precedent in the state is unclear. Accordingly, the Court will certify the question to the Ohio Supreme Court pursuant to Ohio Supreme Court Rule XVIII.
B. Certified Question to the Ohio Supreme Court
The Court will, by separate Order, certify the following question to the Ohio Supreme Court:
In the absence of direct proof in an age discrimination case, is the fourth element of a prima facie case established under Ohio Revised Code Section 4112.02 et seq. where the plaintiff proves that he or she was replaced by a person substantially younger than he or she even though the replacement is over forty years old? More specifically, is the fourth element of the age discrimination prima facie case, as set forth in Barker v. Scovill, Inc., 6 Ohio St.3d 146, 451 N.E.2d 807, Syl. ¶ 1 (1983), still viable in light of the United States Supreme Court decision in O'Connor v. Consolidated Coin Caterers Corporation, 517 U.S. 308, 313 (1996)?
The Order, filed concurrently herewith, is largely duplicative of the instant Opinion and Order in order to comply with Ohio Supreme Court Rule XVIII as it contains the same statement of the facts and discussion of the issues of law.
The Court refers the parties to Ohio Supreme Court Rule XVIII(6) for details on their obligations to file preliminary memoranda within twenty (20) days after the certification order.
IV.
For the foregoing reasons, Defendants' Motion for Summary Judgment (Doc. #26) is held in abeyance pending a determination by the Ohio Supreme Court whether to answer the certified question.