Kohmescher v. Kroger Co.

Sweeney, J.

In his complaint before the court of common pleas, plaintiff alleged that Kroger forced him to retire without just cause and that Kroger discriminated against him on account of his age (sixty years) in violation of R.C. 4101.17.1 The issue presented for our determination is whether summary *503judgment was properly granted in favor of Kroger and against plaintiff. For the reasons that follow, we answer such inquiry in the negative, and therefore reverse the judgment of the court of appeals below and remand the cause to the trial court for further proceedings.

A clear reading of R.C. 4101.17 indicates that it was enacted by the General Assembly in order to permit a civil cause of action for aggrieved employees to redress claims of age discrimination.2 See Morris v. Kaiser Engineers, Inc. (1984), 14 Ohio St.3d 45, 14 OBR 440, 471 N.E.2d 471. In Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146, 6 OBR 202, 451 N.E.2d 807, this court held in the first paragraph of the syllabus:

“In order to establish a prima facie case of age discrimination, violative of R.C. 4101.17, in an employment discharge action, 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 plaintiffs discharge. Finally, plaintiff must be *504allowed to show that the rationale set forth by defendant was only a pretext for unlawful discrimination.”

The Barker test for determining the establishment of a prima facie cause of action in age discrimination was a direct adaptation of the evidentiary standards and guidelines established 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, which concerned redress of discriminatory employment practices involving race. In Plumbers & Steamfitters Commt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St.2d 192, 20 O.O.3d 200, 421 N.E.2d 128, this court adopted the McDonnell Douglas standards for cases brought under R.C. 4112.02. In Barker, supra, this court approved and slightly modified the McDonnell Douglas standards to fit a claim of age-based wrongful discharge.

A review of the record below indicates that the court of appeals affirmed the summary judgment in favor of Kroger because it believed that plaintiff could not satisfy the second and fourth prongs of the Barker guidelines. In our view, however, the focus of the court below in implementing a strict interpretation of the Barker guidelines has unfortunately caused it to lose sight of the ultimate inquiry of an action brought pursuant to R.C. 4101.17, i.e., whether evidence of age discrimination is present in the case. We believe that plaintiff has presented what can be characterized as direct evidence of age discrimination sufficient to overcome Kroger’s motion for summary judgment. Such direct evidence took the form of Klocke’s written response to Kroger’s requested implementation of its reduction in force (“RIF”). In recommending that plaintiff be selected for the RIF, Klocke clearly indicated that plaintiff was selected because he was “eligible for (the) retirement window.” By strictly applying the Barker standards to the facts sub judice, however, the courts below virtually ignored this clear, direct evidence of age discrimination that made the granting of summary judgment in favor of Kroger unwarranted.

Research indicates that the McDonnell Douglas standards borrowed in Barker, supra, were never intended to be applied strictly. As Chief Justice (then Justice) Rehnquist noted in U.S. Postal Service Bd. of Governors v. Aikens (1983), 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403, 410: “The prima facie case method established in McDonnell Douglas was ‘never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.’ Furnco [Constr. Corp. v. Waters (1978), 438 U.S. 567,] * * * at 577 [98 S.Ct. 2943, at 2949, 57 L.Ed.2d 957, at 967].” See, also, McCorstin v. United States Steel Corp. (C.A.5, 1980), 621 F.2d 749.

*505Moreover, as the high court stated in Trans World Airlines, Inc. v. Thurston (1985), 469 U.S. Ill, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523, 533, with respect to an action brought pursuant to the federal Age Discrimination in Employment Act of 1967 (Section 621 et seq., Title 29, U.S.Code): “ * * * the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination. See Teamsters v. United States, 431 U.S. 324, 358 [97 S.Ct. 1843, 1866, 52 L.Ed.2d 396, 429], n. 44 (1977). The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the ‘plaintiff [has] his day in court despite the unavailability of direct evidence.’ Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (CAI, 1979).”

We agree with the reasoning employed in the foregoing cases and find that strict application of the Barker guidelines has led courts to overlook the ultimate inquiry in age discrimination cases, i.e., whether plaintiff was discharged on account of age. Here, it is evident that the courts below were distracted from making such an ultimate inquiry, even though direct evidence of age discrimination was present. Given the rigid, mechanized and somewhat ritualistic application of Barker, supra, by the courts below, we find that Barker should be slightly modified in order that its guidelines will be correctly applied in R.C. 4101.17 actions in only those situations where direct evidence of age discrimination is not readily discernible. As the court stated in Barnes v. GenCorp., Inc. (C.A.6, 1990), 896 F.2d 1457, 1464: “ * * * the importance of the McDonnell Douglas ‘test’ is its discussion of the elements a plaintiff must prove to establish a prima facie case of discrimination absent direct, circumstantial, or statistical evidence of discrimination.” (Emphasis added.) See, also, Rose v. Natl. Cash Register Corp. (C.A.6, 1983), 703 F.2d 225, 227:

“ * * * the ultimate burden borne by a plaintiff in an age discrimination action is that of proving ‘he was discharged because of his age.’ Laugesen [v. Anaconda Co. (C.A.6, 1975), 510 F.2d 307] * * * at 313.
a * * *
“ * * * To say that a plaintiff has established a prima facie case is simply to say that he has produced sufficient evidence to present his case to the jury, i.e. he has avoided a directed verdict. * * * ”

Therefore, based on all of the foregoing, we modify the first sentence of paragraph one of the syllabus in Barker, supra, and hold that absent direct evidence of age discrimination, in order to establish a prima facie case of a violation of R.C. 4101.17 in an employment discharge action, a plaintiff-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 that the *506discharge permitted the retention of, a person not belonging to the protected class. Under this modified standard, it should be abundantly clear that direct evidence of age discrimination will be sufficient to establish a prima facie case.

Notwithstanding the foregoing, we further hold that summary judgment was improperly granted in favor of Kroger because of the existence of a genuine issue of material fact over whether plaintiffs retirement was voluntary. Under the record developed below, plaintiff asserts that his retirement was tantamount to a discharge and was by no means voluntary, since he was given such a short period of time to decide whether he would accept a transfer to an undisclosed position in an unknown location in California or opt for retirement with enhanced benefits. Kroger disputes plaintiffs contentions in this vein, and argues that plaintiffs acceptance of early retirement was knowing and voluntary. In our view, reasonable minds can come to more than one conclusion in light of such conflicting evidence and testimony. Under these circumstances, we find that summary judgment in favor of Kroger was clearly erroneous.

Accordingly, we reverse the judgment of the court of appeals and remand the cause for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.

Douglas, H. Brown and Resnick, JJ., concur. Moyer, C.J., Holmes and Wright, JJ., dissent.

. R.C. 4101.17 provided as follows:

“(A) No employer shall discriminate in any job opening against any applicant or discharge without just cause any employee between the ages of forty and seventy who is physically able *503to perform the duties and otherwise meets the established requirements of the job and laws pertaining to the relationship between employer and employee.

“(B) Any person between the ages of forty and seventy discriminated against in any job opening or discharged without just cause by an employer in violation of division (A) of this section may institute a civil action against the employer in a court of competent jurisdiction. If the court finds that an employer has discriminated on the basis of age, the court shall order an appropriate remedy which shall include reimbursement to him for the costs, including reasonable attorney fees, of the action, or to reinstate the employee in his former position with compensation for lost wages and any lost fringe benefits from the date of the illegal discharge and to reimburse him for the costs, including reasonable attorney fees, of the action. The remedies available under this section are coexistent with remedies available pursuant to sections 4112.01 to 4112.11 of the Revised Code; except that any person instituting a civil action under this section is, with respect to the practices complained of, thereby barred from instituting a civil action under division (N) of section 4112.02 of the Revised Code or from filing a charge with the Ohio civil rights commission under section 4112.05 of the Revised Code.

“(C) The cause of action described in division (B) of this section and any remedies available pursuant to sections 4112.01 to 4112.11 of the Revised Code shall not be available in the case of discharges where the employee has available to him the opportunity to arbitrate the discharge or where a discharge has been arbitrated and has been found to be for just cause.” H.B. No. 230, 138 Ohio Laws, Part I, 2268.

The current version of R.C. 4101.17(A) protects any “employee aged forty or older.”

. Without the benefit of a legislative history, it appears that R.C. 4101.17 was amended by the General Assembly in 1978, Am. Sub. H.B. No. 598, 137 Ohio Laws, Part II, 3062, in response to this court’s decision in Fawcett v. G.C. Murphy & Co. (1976), 46 Ohio St.2d 245, 75 O.O.2d 291, 348 N.E.2d 144, where it was held that a violation of R.C. 4101.17 by an employer did not give rise to a civil action for damages. See Venezia v. Scovill, Inc. (S.D.Ohio 1983), 592 F.Supp. 3, 6; and Garry v. TRW, Inc. (N.D.Ohio 1985), 603 F.Supp. 157, 160.