OWBPA Exhibits Are Admissible to Challenge Whether Plaintiff Was Terminated as Part of RIF or as Pretext

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.

Ohio Appeals Court Lowers $46.5M Damage Award to $10.5M In Retaliatory Discharge Case

Last Thursday, the Cuyahoga County Court of Appeals ruled that Ohio's Tort Reform Act required the reduction of $43M in punitive damages to no more than $7M (which was twice the amount of compensatory damages awarded by the jury) in a retaliatory discharge case brought under the Ohio Civil Rights Act. Luri v. Republic Servs., Inc., 2011-Ohio-2389. In that case, the plaintiff general manager alleged that his employer manufactured a reason to fire him in April 2007 in violation of Ohio Revised Code § 4112.02(I) after he refused to fire the company's three oldest employees in November 2006. He had protested that one of the older employees had strong performance evaluations and could sue the company for age and disability discrimination. In addition, the plaintiff presented evidence that the defendants had altered and/or fabricated evidence to support its illegal termination decision and then refused to waive his non-competition agreement after firing him.

The Court held that the trial court did not abuse its discretion in refusing to bifurcate the trial (between liability and damages) because the evidence that proved liability was also relevant to the defendant's bad faith, justifying punitive damages. In particular, evidence that the defendants had manufactured evidence proved not only guilty intent in the termination decision, but also bad faith. The Court refused to find an error in the jury instructions because the defendants had failed to ask in the jury interrogatories or instructions for the economic and non-economic damages to be separately specified. In addition to the $3.5M in compensatory damages awarded by the jury, the trial court also awarded over $1M in attorney fees and prejudgment interest. However, the Court of Appeals found that the Tort Reform Act at Ohio Revised Code § 2315.21(D) limited the punitive damages to twice the amount of compensatory damages and those damages should be imposed collectively, rather than per plaintiff. Otherwise, the amount of the $43M punitive damage award did not shock the Court's conscience or constitute a violation of due process under the circumstances.

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.

When an Affirmative Action Plan Constitutes Evidence of Reverse Discrimination.

Last month, the Ohio Court of Appeals in Dayton rendered a decision which highlights the need to conduct a focused availability analysis when preparing an affirmative action plan. In that case, the Court reversed a directed verdict in favor of the employer and reinstated a reverse race and gender discrimination claim for trial by a jury based, in part, on a sloppy affirmative action plan which relied simply on census data instead of a focused availability analysis. Mitchell v. Lemmie, 2007 Ohio 5757 (10/26/2007).

In Mitchell, the Plaintiff had applied to be promoted to a division manager position. That position had been filled by an African-American female who had no prior experience in that division (unlike the Plaintiff), who had worked her way up from a secretarial position and who had been placed in the position without any competitive hiring process. She and the Department Superintendent recommended to Lemmie, the City Manager, that plaintiff be promoted to replace her, but Lemmie refused without any explanation and a national search was conducted to fill the position. (This woman was also promoted two more times without a competitive process). The Plaintiff was ultimately ranked second of the available candidates and presumably should have received the job after the top and third ranked candidates withdrew from consideration, but Lemmie again without explanation refused to promote the Plaintiff into the position. There was testimony that she only gave the Plaintiff a brief courtesy interview for the job. She posted the job again for another national search, this time with an emphasis on recruiting qualified African-Americans. The position was then offered to an African-American male, who turned it down because of the low salary. The other two top candidates were rejected for other reasons. Finally, a female African-American was recommended to Lemmie and she was hired after applying and interviewing for the position. The successful candidate was paid $15,000 more than the Plaintiff had been paid while serving in an interim capacity.

The qualifications for the position remained the same throughout all of the searches.

Many years before the events of the litigation, the employer had adopted an affirmative action plan which professed a goal of employing individuals in the same number as reflected by the demographics of the local population. “While no applicant should ever be accepted or rejected for employment or promotion based solely on race or gender, the City recognizes Affirmative Action as a moral and legal responsibility. The race or sex of an applicant is a legitimate factor to be considered in selecting appointees to positions where certain demographic categories are underutilized from a group of candidates with nearly equal qualifications.” Ten percent of the performance evaluation of each division manager was to be based on compliance with the AAP. “Each department was given yearly objectives, which were to be included in the performance contract of each department director. These objectives were computed by a specific method, based on the percentages of African-Americans and women in the total general workforce of the City of Dayton (37% and 46%, respectively).” The AAP also provided that “[t]he formula used to calculate the number of minorities and females in the workforce was based solely on demographic information from the U.S. Census Bureau, with the terms “population, working or seeking employment” and “general workforce” to mean the general population of working age.

The Court found that the defendant employer’s failure to calculate its hiring goals based on the number of qualified women and minorities in the workforce (instead of based on the general working age population) doomed the AAP. When an AAP “ simply calculated imbalances in all categories according to the proportion of women in the area labor pool, and then directed that hiring be governed solely by those figures, its validity fairly [can] be called into question. This is because analysis of a more specialized labor pool normally is necessary in determining underrepresentation in some positions. If a plan failed to take distinctions in qualifications into account in providing guidance for actual employment decisions, it would dictate mere blind hiring by the numbers, for it would hold supervisors to ‘achievement of a particular percentage of minority employment or membership ... regardless of circumstances such as economic conditions or the number of available qualified minority applicants.” quoting Johnson v. Transportation Agency, Santa Clara County, Cal. (1987), 480 U.S. 616, 636.

Unlike the Johnson AAP, the Court noted that the defendant employer’s AAP “failed to acknowledge that imbalance cannot, in itself, justify taking race or sex into consideration. Also unlike the plan in Johnson, Dayton’s Plan calculates imbalances based solely upon the respective proportion of African-Americans and women in the local labor force (37% and 46%, respectively), not upon the proportion of skilled workers.” None of the hiring goals were based on an analysis of the local workforce with the requisite skills or education. “As structured, Dayton’s Plan dictates “mere blind hiring by the numbers.”

The Court agreed that use of an AAP by itself does not constitute unlawful discrimination. However, “the existence of an affirmative action plan, when combined with evidence that the plan was followed in an employment decision, is sufficient to constitute direct evidence of unlawful discrimination unless the plan is valid. * * * Furthermore, even when a defendant denies having acted pursuant to its affirmative action plan, if there is evidence that it may have done so, a jury must decide whether the defendant in fact acted pursuant to its stated plan.” quoting Bass v.Bd of County Commrs, Orange County, Fla. (11th Cir, 2001), 256 F.3d 1095, 1111. In fact, “an affirmative action plan may constitute direct evidence, even when a defendant denies having acted pursuant to its stated plan.” Id. Even in a reverse discrimination case based on the indirect method of proof, the AAP could be used to show background circumstances supporting conditions for reverse discrimination.

In reversing the employer’s directed verdict, the Court was also influenced by a number of factors, including:

• Lemmie’s failure to follow traditional hiring procedures. In particular, there had been evidence that the City Manager typically accepted the hiring recommendations of subordinates, but she rejected two recommendations to hire the Plaintiff;


• The employer’s inconsistency in implementation of the hiring process, such as appointment of other promotional candidates (in other positions) without competition, while the division manager position was subjected to several competitions and searches;


• Lemmie’s failure to articulate reasons to her subordinates (before the litigation commenced) for refusing to promote the Plaintiff. “While Lemmie may have felt that she was not obligated to explain her actions to anyone, the absence of an explanation at a time when it might logically have been expected is suspicious.”


• Lemmie’s membership and leadership position in an organization designed to increase the number of African-Americans as public service executives. Lemmie was an officer of a professional association that professed a “commitment to strengthen the position of blacks within the field of public administration, to increase the number of blacks appointed to executive positions of public service organizations, and to groom and prepare young aspiring administrators for senior public management in the years ahead.” Most of the local members worked for the City and the City paid the dues for a number of the member employees. Lemmie eventually offered the job to a female African-American applicant recommended to Lemmie through this organization even though no other candidate was sought at that time.


• The employer’s financial support of employee membership in NFBPA;


• During Lemmie’s tenure, only African-American and females were sent to executive and leadership training at the Executive Leadership Institute and the Leadership America Institute.


• There was also evidence that the successful candidate was not as qualified for the position as the Plaintiff.


• Lemmie cited factors for her decision which were not included on (and had been actually crossed off ) the interview rating sheets and disclaimed factors (such as union relations) which were included on the rating sheet (and on which only the Plaintiff had significant experience).
  
  
  Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/2/2007/2007-ohio-5757.pdf.
  
  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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.