Just before Christmas, the Franklin
County Court of Appeals affirmed the dismissal of an age discrimination claim
where the 61-year-old plaintiff was fired after one year of employment and
replaced by a 34-year-old because he did not show that the employer’s
dissatisfaction with his job performance was pretextual. Brehm
v. MacIntosh Co., 2019-Ohio-5322.
Not
only did he fail to show that the employer’s evidence and explanation was
false, but he failed to show that his younger and better treated peers engaged
in substantially identical conduct, that statistical evidence showed a pattern
and practice of replacing older managers with younger ones, or that the employer’s ambiguous explanation
in his termination meeting masked its true motivation.
According to the Court’s opinion,
the plaintiff was hired at the age of 60 as a nursing facility administrator,
responsible for fiscal responsibility, operating efficiency, and supervising
management. In the first year of his
management, the office supply expenses consistently exceeded their budget, revenue
decreased, income decreased by 37%, his financial reports were not sufficiently
detailed and he could not appropriately document meetings with his subordinates
with agendas, notes, and advance notice of meetings, etc. His employment was terminated 13 months after
he had been hired and he was replaced by a 34-year-old administrator. The lawsuit followed.
The Court found that he satisfied
his prima facie case and that he was
objectively qualified for his position even though his actual performance did
not meet the employer’s expectations.
The Court found that the
plaintiff failed to show that the employer’s explanation for his termination –
his poor performance – was pretextual. The undisputed evidence showed that the
facility’s income declined 37% in the year after the plaintiff was hired, that
he failed to control the excess spending on office supplies and he failed to properly
document and manage his staff, etc. While
the plaintiff attempted to justify his management and argue that the
expectations had been unrealistic, he failed to produce evidence disputing the accuracy of the employer’s evidence. In other words, he failed to show that the
poor performance simply did not happen.
While the plaintiff attempted to
show that the employer’s articulated explanation did not actually motivate his
termination due to slightly differing (i.e., shifting) and more ambiguous explanations
he was given in his termination meeting for not being a “good fit,” and the
unhappiness of the investors, the Court found “"[i]solated and ambiguous
comments 'are too abstract, in addition to being irrelevant and prejudicial, to
support a finding of age discrimination.' "
[T]he fact that [the employer’s] articulated reasons for the termination decision were not all revealed to [the plaintiff] at his termination interview . . . does not lead to the conclusion that [its] decision was motivated by age, particularly where, as here, the record supports the factual accuracy of [its] proffered reason for termination. [The plaintiff’s] contention that he has demonstrated "after-the-fact" pretext because what he was told at the time of his termination is different from what [the employer] has articulated now lacks merit.He also failed show to show the employer’s articulated explanation was not the true motivation by arguing that he was not afforded prior warnings though the progressive disciplinary process prior to his termination. “But where there is no requirement that an employer use progressive discipline prior to the termination of one of its employees, the failure to subject an employee to progressive discipline does not establish pretext of age discrimination.” The plaintiff failed to show that he was entitled to progressive discipline before his termination and the undisputed evidence showed that such progressive discipline was never given to similarly situated administrators. In any event, the employer contended that the financial issues were discussed with plaintiff at each monthly financial meeting.
The plaintiff also failed to show that age discrimination was the actual motivation by pointing to the terminations and replacements by substantially younger employees of two other protected-age administrators. While statistical evidence of a practice and pattern of age discrimination could show pretext, proper statistical evidence had never been presented and could not be satisfied by anecdotal evidence of two isolated terminations.
[W]e have previously found that "in the absence of evidence as to the circumstances surrounding those decisions (i.e. evidence of discriminatory action against other employees discharged by [the employer]), the fact that workers of a particular age left the company is insufficient to support a finding of age discrimination." . . . Here, the record simply does not reveal any evidence regarding the circumstances surrounding the decisions to terminate either [of the two other administrators].
Finally, the plaintiff failed to show pretext with evidence that similarly-situated younger administrators received better treatment under similar circumstances. The Court found that the alleged comparators were both in their 40’s, not 30’s as alleged. More importantly, there was no evidence that either had engaged in “substantially identical conduct.” One had been reassigned after a poor Department of Health survey, not because of financial and supervisory mismanagement. The other had been reassigned from reassigning a long-time challenged facility, unlike the facility which the Plaintiff managed. “This explanation provides "differentiating or mitigating circumstances" that distinguishes both the conduct of the alleged comparator and [the employer’s] response to it so as to prevent [her] from being an employee who was "similarly-situated" to [the plaintiff].”
At the end of the day, the plaintiff
provided no deposition testimony or even affidavits from any of the other employees whom he insists were either treated the same as him (terminated because of their age) or better than him despite their own alleged poor job performance. He has provided no deposition testimony or affidavits from any of his former subordinates who may have been able to corroborate his contentions that he was effectively leading his team, having meetings as required, and generally performing his job functions well, as he attests in his own affidavit. He has provided no statistical evidence or expert testimony in support of his theory of "pattern and practice" discrimination. Instead, the only evidence submitted by [him] in rebuttal to [the employer’s] motion for summary judgment and the evidence upon which it is properly supported is his own affidavit, which largely consists of conclusory and self-serving allegations.
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.
