The verdict receiving the most local media buzz is the $500K+ age discrimination award in Warden v. Ohio Department of Natural Resources. The Ohio Court of Claims ruled in favor of a retired employee who was rejected for his application to be rehired into his old job (for which he was undeniably the most qualified applicant) because the ODNR applied a new and unpublicized policy during the last recession of not rehiring retirees into their former jobs while they were also collecting a pension – a practice referred to as “double dipping.” A review of the court docket shows that this case is even more interesting (to employment attorneys at least) than the significant monetary judgment reflects or the local media has reported.
As explained in the plaintiff’s
summary judgment motion, and the Court’s
liability opinion,
the plaintiff accepted a two-year buy out and retired in 2006. He was re-hired
as an independent contractor to essentially perform his old job for a series of
short-term contracts. When a job similar
to his old job was posted, he was encouraged to apply and did so. His application made it through the screening
process and he was interviewed. The plaintiff
received the highest interview scores and several managers/directors went to
bat for him to be hired (both before and during the litigation). At no time during the process was he told
about a policy to not hire retirees. (There
was also a factual dispute as to whether the interviewers had been informed of
the policy). The HR Director refused
to hire him because he was a retiree.
Therefore, the job went to the next most qualified applicant who was 15
years younger. The plaintiff’s complaint
alleged that his age was a motivating factor in the decision.
The ODNR explained that it had enacted the policy because “double
dipping creates a distrust with the public.” Re-employment of retirees was to be allowed
only for short-term contracts where the job required specialized knowledge or
experience and a number of factors were to be considered in evaluating
exceptions. (The Court only noted one exception which had been made). While the policy was memorialized in a
memorandum by one HR Director, there was no written directive distributed to
division heads or HR staff. The court found
that the policy -- against re-hiring retirees collecting a pension -- did not
constitute direct evidence of discrimination, but rather, was a legitimate and
non-discriminatory reason to reject the plaintiff’s application. Moreover, the Court also concluded that the
plaintiff failed to show that the ODNR’s explanation was pretextual for age
discrimination. Accordingly, the Court
rejected the plaintiff’s disparate treatment theory of recovery.
Shockingly, the Court then concluded
that the plaintiff should prevail on a disparate
impact theory of liability even though this theory was not plead
in the Complaint or even mentioned in
the plaintiff’s
post-trial brief and no statistical evidence had been presented. (In fact, the plaintiff’s post-trial brief
even cites in its first footnote to
another Court of Claims summary judgment opinion
from three years ago which had saved a similar policy from legal
challenge). The Court concluded that any
policy which precludes employment on the basis of retirement under Ohio Revised
Code § 145.32 necessarily is based on the fact that the individual is over the
age of 40 (because no one is eligible to retire below the age of 55 or 30 years
of service). It then disputed the whole basis
for public condemnation of double-dipping on the premise that it is legal and
saves money because the state contributes less to the pension accrual of an
already-retired employee, etc. Therefore, the
Court found that the policy did not constitute a reasonable factor other
than age which could justify the non-hire of the plaintiff.
The defendant employer argued
in its Motion for Reconsideration that the evidence showed that the plaintiff
was the only individual adversely affected by the ODNR policy. (It even pointed out that the only time that
the plaintiff’s counsel ever mentioned the words “disparate impact,” it was
done by mistake and he quickly corrected himself). Nonetheless, the Court ruled
that the plaintiff could prevail on any legal theory supported by the facts and
that statistical evidence was not necessary in a disparate impact claim.
Instead of ordering the ODNR to hire the plaintiff, the
Court ordered
the payment of back and front pay instead.
The plaintiff had indicated that he had only intended to work another
five years and the new employee had been working in the job for three years at
this point. This judgment amounted to
more than $507K and included his $64K annual starting salary, presumed annual step
increases, fringe benefits calculated to equal 34.5% of his salary, $17.3K for
the increased tax liability from a lump sum payment, pension accrual, repayment
of court costs (including the costs of litigating) and attorney fees of
$53,545. He was also awarded 3% judgment interest.
I expect this decision to be appealed.
Religious
Discrimination/Vegans/Flu Shots. In an
opinion written by federal Judge Spiegel in Cincinnati, the Court refused to dismiss a
complaint which alleged that a hospital employer violated the plaintiff’s rights
under Title VII to exercise her vegan religion by firing her in 2010 for
refusing to take a flu shot. (Until the last week, most flu shots could only be
manufactured using eggs). Chenzira
v. Cincinnati Children’s Hospital Medical Center, No. 11-CV-917 (S.D. Oh.
12-27-12). Complaints such as this
can only be dismissed if there is no set of facts which could sustain the legal
theory. This is a difficult standard to
meet, but many observers were still surprised because veganism is not usually
considered to be a religion and a hospital ‘s undue
hardship for such a religious accommodation seems to be obvious (although, here, the hospital allegedly used to accommodate the plaintiff in the past). The result of the Court’s opinion is that the
case will proceed with discovery, summary judgment motions and possibly trial
if the parties do not first settle the case.
NOTICE: This summary is designed merely to inform and
alert you of recent legal developments. It does not constitute legal advice and
does not apply to any particular situation because different facts could lead
to different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
