Last month, the Summit County Court of Appeals reversed an employer’s summary judgment on an FMLA retaliation claims because the trial court had not considered the attachments to separation agreements (required by the OWBPA) showing the number of employees selected for a reduction in force and severance pay to impeach the employer’s explanation for the plaintiff’s termination. Kane v. Inpatient Med. Servs., Inc., 2019-Ohio-1975. The plaintiff argued that the employer’s failure to include her on one of the exhibits shows that she was not actually terminated as part of the reduction in force, but the trial court excluded the exhibit as evidence of a compromise. The court of appeals held that Rule 408 only bars such evidence to impute liability and its amount, and not to impeach a witness. The Court, however, agreed that the plaintiff’s jury trial waiver was valid.
According to the Court’s opinion, the defendant employer purchased the company for which the plaintiff had worked for two years as a regional vice president shortly before she began maternity leave. The plaintiff was terminated when she returned from her second maternity leave and was told that her position had been eliminated as part of a reduction in force. She filed suit alleging FMLA interference and retaliation and the trial court granted summary judgment to the employer. The trial court refused to consider two exhibits which the plaintiff had submitted in an attempt to show that the employer’s stated explanation was pretextual. The first was an unsigned separation agreement which contained the exhibits required under the Older Worker Benefit Protection act reflecting the lay off of only 14 Indiana employees of company acquired by the employer and which did not include the plaintiff. The second was the same exhibit from a different separation agreement which reflected that only she and the company president had been laid off. Both of these, she claimed, conflicted with the employer’s answers to interrogatories that 15-20 employees had been laid off and from which entities had been laid off in the reduction in force. The Court of Appeals remanded for the trial court to consider these exhibits.
Ohio Rule of Evidence 408 prohibits the consideration of offers of compromise to show either liability or the amount of liability. The rule further provides that:
Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Because the plaintiff was not attempting to use the exhibits to show liability or the amount of liability, the exhibits were admissible to impeach the employer’s explanation for her termination as required to show that its explanation was pretextual.
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.
