Franklin County Court of Appeals: Unfairness of Life Is No Substitute for Evidence of Age Discrimination

Earlier this month, a unanimous Franklin County Court of Appeals affirmed a municipal employer’s summary judgment decision in an age discrimination case. Tilly v. Dublin, 2013-Ohio-4930.   Like several other younger employees, the plaintiff had been terminated following extensive investigations into violations of the Defendant City’s employment policies through the use of racially offensive language.  None of the employees were replaced because of the economic downturn.  Unlike the other employees, the plaintiff’s union did not pursue arbitration on behalf of the plaintiff because he retired upon being terminated.   The City lost all but the last arbitration challenging the terminations and settled rather than lose the last arbitration as well.   Upon learning that his co-workers had been reinstated with back pay, the plaintiff requested to be reinstated as well.  He filed suit when the City refused to reinstate him.  The Court agreed that there no evidence of age discrimination because he was not replaced by a younger employee and was not similarly –situated to his younger, reinstated co-workers because the City was not at risk from adverse arbitration decisions.

The union's act of forwarding the other four men's grievances to arbitration, but refusing to forward plaintiff's grievance to arbitration, provides the differentiating  circumstances which distinguish the City's treatment of Moerch, McDade, Otis, and Ballinger from the City's treatment of Tilley. Accordingly, Tilley was not comparable to Otis, Ballinger, McDade, or Moerch.

The Court refused to entertain challenges to the investigation that resulted in his termination.  It was irrelevant to his age discrimination claim that most of the interviewed employees denied hearing him use racially offensive language because three employees – including a former employee – provided contrary evidence.  The City was entitled to reasonably rely on the evidence of those three employees in reaching its conclusion.

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.