Last month, the Cuyahoga County Court of Appeals reversed an employer’s summary judgment on an age discrimination claim on the basis that the decisionmaker’s comments about the plaintiff’s repeated retirement equivocations constituted direct evidence of discrimination when he was laid off shortly after the comments were made. Selzer v. Union Home Mortgage, 2026-Ohio-38. While the mere use of the word, “retire” is insufficient by itself to constitute evidence of age discrimination, the frequent inquiries about the plaintiff’s retirement plans and consideration of his proximity to retirement age as a factor in his selection for the reduction in force, and comments by decisionmakers, etc. was sufficient to create an disputed issue of material fact about the reasons for his termination.
The plaintiff was laid off in a reduction in force at the
age of 64. He alleged that his age was a
factor because the employer retained a 31 year old in the same position hired
five months earlier. The trial court
granted the employer summary judgment and the Court of Appeals reversed on the
grounds that he presented sufficient evidence to show that his age may have
been a factor in his termination.
To support his argument that he had presented sufficient evidence
to survive the employer’s summary judgment motion, the plaintiff
points to frequent comments
inquiring as to his retirement plans; the comments were made by numerous UHM
employees who had supervisory authority over [him]. [He[ further points to an
email from . . . a vice president with
UHM who was involved in the decision to terminate [him], in which [she] stated
that [he] “keeps saying he will retire but hasn’t.” According to UHM senior
vice president of mortgage operations .
. . , the purpose of [that] email containing this statement was to “communicate
the reasons that [[he] was] being included on the termination list.”
[Plaintiff] argues that other
courts have concluded that an employer’s consideration of an employee’s
potential longevity with the company “is nothing more than a proxy for age” and
therefore constitutes direct evidence of age discrimination . . . .
We reiterate that in this context,
“‘[d]irect evidence is evidence that, if believed requires the conclusion that
unlawful discrimination was at least a motivating factor in the employer’s
actions.’” . . . In determining whether
an employer’s statements constitute direct evidence of age discrimination,
courts must consider the following four factors:
(1) whether the statements were
made by a decision-maker or by an agent within the scope of his employment; (2)
whether the statements were related to the decision-making process; (3) whether
the statements were more than merely vague, ambiguous or isolated remarks; and
(4) whether they were made proximate in time to the act of termination.
. . .
This court has held that the use
of the word “retire” by itself is not sufficient direct evidence of age
discrimination. . . . Here, however, the record contains evidence
that [his] supervisors frequently asked him about his retirement plans, and
moreover, a UHM representative testified in her deposition that [his] proximity
to retirement was a factor UHM considered in [his] termination. The comments
were made by UHM decision makers in the scope of their employment, the comments
were related to the decision-making process, and they were made close in time
to the decision. Further, considering the pattern of [his] supervisors
inquiring about and commenting on his retirement plans, the statement in [that]
email was not isolated or ambiguous.
Viewing the evidence in the light
most favorable to [the plaintiff] as we are required to do pursuant to Civ.R.
56, Selzer has created a genuine issue of material fact such that reasonable
minds could disagree as to whether [he] suffered age discrimination. Therefore,
the trial court erred in granting summary judgment in favor of UHM. . .
.
(bolding added for emphasis). The Court declined to rule on the arguments
about whether the evidence was sufficient to show a circumstantial burden of
proof or pretext.
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.
