Late
last month, the Franklin County Court of Appeals unanimously upheld a jury instruction
and verdict rejecting the age discrimination and retaliation claims of the
plaintiff employee against his former managers and officers at his bankrupt
former employer. Bresler
v. Rock, 2018-Ohio-5138. The
plaintiff had been laid off with most other employees for financial reasons in
May 2014, but was not recalled like his older co-worker in August 2014. Instead, he was terminated and then filed
suit in November 2014 alleging age discrimination and seeking an injunction
against retaliation. Even though the
plaintiff had never applied for employment, the employer offered the next month
and the following March to rehire him subject to signing a release of all
claims and dismissal of the lawsuit. After
he rejected the offers, a younger woman was hired instead for his former
position when his older co-worker retired.
The Court rejected the plaintiff’s attempt to amend his Complaint at
trial to add a retaliation claim and the jury ruled in favor of the defendants
on the age discrimination claims. The
Court found that there was nothing illegal or improper about the employer
conditioning the plaintiff’s rehire on a release of claims when the employer
had no obligation to rehire the plaintiff at all.
Although
the employee did not appeal the denial of the Court’s refusal to permit an
amendment of his complaint to include a retaliation claim, he did appeal the
trial court’s instruction to the jury at the 2016 trial:
It is not an adverse employment action for an employer to
require an employee to dismiss a lawsuit or withdraw claims as part of a
condition of being rehired. Employees
and employers may lawfully negotiate settlements that include the waiver or
release of age discrimination claims.
The employee argued that it is retaliatory to refuse to hire
an employee on the basis of him filing a charge of discrimination or filing a
lawsuit. The Court reviewed federal law
on retaliation and found that when an employer has no obligation to rehire an
employee, it is not retaliation to offer rehiring conditioned on releasing
discrimination claims and dismissing litigation. Moreover, employers and employees are
permitted to negotiate settlements of disputes that include waivers and
releases of claims. Among other things,
refusing to pay severance pay to an employee in the absence of a release of
claims is rarely found to be retaliatory.
The Court distinguished retaliation cases where the employee
had otherwise been entitled to a certain benefit before the employer withheld
it following the filing of a charge or lawsuit.
Because the plaintiff had been terminated and had never sought
reinstatement or rehiring before the employer offered to resolve the dispute by
rehiring him, he could not show that he had been retaliated against by the
employer’s offer:
. . . . Ohio and Sixth Circuit case law supports the
proposition that employers may offer re-employment and back pay conditioned
upon settlement and release of claims.
Here, similar to the facts in Graves,
the company was under "no obligation" to rehire appellant following
the RIF. Graves. As the company had
"no duty" to offer employment to appellant, "its failure to make
such an offer would not have been an adverse employment action." Id.
The Court also found that the Complaint’s request for
injunctive relief was not a claim for relief for retaliation. Indeed, the facts which the plaintiff claimed
to support such a retaliation claim did not even occur until after the Complaint was filed and the
plaintiff did not seek to amend his Complaint to include a retaliation claim
until after the close of his evidence at
trial several years later. Requests
for injunctive relief are remedies, not causes of action. Accordingly, the Complaint did not give the
defendants fair notice that a retaliation claim was being litigated during the
discovery phase or prior to trial.
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 be changed or 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.
