Last month, the Belmont County Court of Appeals affirmed an employer’s summary judgment when a former employee challenged the elimination of her Marketing Director position on the basis of age discrimination. Cunningham v. Perry & Assocs., 2021-Ohio-4295. The trial court determined that the plaintiff had not been replaced as required to carry her burden of proof because her duties were divided, some were outsourced and the rest spread among the remaining employees. That the employer considered assigning some of her job duties to a younger male if he were ever rehired does not constitute replacement. “An intent by an employer for another employee to assume only some duties does not constitute replacement.” Further, the plaintiff failed to produce evidence that the employer’s explanation was pretext for age discrimination. It was undisputed that the employer had explained that the cost of the Marketing Director position outweighed the benefits, particularly when the Cambridge office was losing money.
According to the Court’s
opinion, the plaintiff had initially been hired on a contract basis and then
was hired as the company’s Marketing Director when she was 60 years old. After
challenging her initial 90-day performance evaluation, she alleged that she was
given a $5k raise in lieu of a $5k bonus.
However, a few months after she brought up that the “raise” was not
reflected on the following year’s pay stub, the employer decided to eliminate
her “position because it determined that the cost of the Marketing Director’s
salary and benefits outweighed the marketing results [it] realized during [her]
employment. During this time-frame, [its] Cambridge, Ohio office was losing
money. [It] ended up outsourcing its digital and social media marketing and
redistributing the remainder of [her] job functions among its existing
employees.” Admittedly, no younger
employees were hired to assume any of her duties, although she alleged that the
employer considered re-hiring a younger male employee to assume some of her
duties.
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.
