Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 40 EPD ¶36,164, Rudolph F. Piecuch, Plaintiff v. Gulf & Western Manufacturing Company, formerly dba Buckeye Forge, Defendants., (Apr. 07, 1986), (Apr. 7, 1986)

Rudolph F. Piecuch, Plaintiff v. Gulf & Western Manufacturing Company, formerly dba Buckeye Forge, Defendants.

United States District Court, Northern District of Ohio, Eastern Division.Civil Action No. C83-2938, April 7, 1986

Age Discrimination in Employment Act of 1967

Ohio--Revised Code

Deferral Procedures--Prerequisite to Age Discrimination Suit--Deferral to State Agency.

--Upon presentation of evidence indicating that an age bias claimant had duly filed his claim with the proper state agency, dismissal of age bias claims was overruled.

Back reference.-- ¶2183.15 .

State Age Bias Claims--No Right to Jury Trial.

--An age bias claimant seeking relief under state law is not entitled to have his case heard by a jury.

Back reference.--Ohio ¶26,599 .

State Age Bias Claims--Remedies--Punitive Damages.

--The state age discrimination statute does not specifically provide punitive damages as a remedy for age bias, nor does the term “appropriate remedy” in that statute permit such an award.

Back reference.--Ohio ¶26,599 .

State Age Bias Claims--Burden of Proof--Age as Determining Factor.

--An age bias claimant failed to state an initial claim either by showing that the employer replaced him by a younger person or by introducing any evidence that age was a determining factor in his layoff. Breach of contract claims were also dismissed for failure to show that any employment contract existed.

Back reference.--Ohio ¶26,599 .

Granting partial summary judgment in (DC Ohio 1985) 39 EPD ¶35,937 , 626 FSupp 65.

Mark B. Cohn, Cleveland, Ohio, for Plaintiff.

Mark F. McCarthy and Tom McDonald (Arter & Hadden), Cleveland, Ohio, for Defendant.

[Statement of the Case]

White, D.J.: Pursuant to the Court’s September 23, 1985 Memorandum And Order plaintiff has fully complied with this Court’s request to present proof that plaintiff’s claim of age discrimination was duly filed with the Ohio Civil Rights Commission in compliance with §14(b) of the Age Discrimination in Employment Act of 1967, (ADEA), 29 U.S.C. §633(b) . Therefore, defendants’ motion for an order granting it judgment as a matter of law pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that the Court lacks jurisdiction over the subject matter of the Complaint is overruled.

Present before the Court are defendants’ motion to strike plaintiff’s demand for a jury trial regarding Count II; plaintiff’s demand for punitive damages pursuant to §4101.17 of the Ohio Revised Code; and defendants’ motion for partial summary judgment to dismiss the second and third counts of the Complaint.

[Jury Trial]

This case involves allegations of unlawful employment practices on the basis of age, prohibited by 29 U.S.C. §625 , et seq., of the ADEA and violations of the Ohio Revised Code §4101.17. The defendant has moved to strike plaintiff’s demand for a jury trial regarding Count II which alleges that plaintiff’s discharge is in violation of Ohio Revised Code §4101. 17.

Defendant relies upon §4101.17 of the Ohio Revised Code, which establishes that under Ohio law a plaintiff seeking relief under §4101.17 may not demand a jury trial. However, plaintiff relies upon Merkel v. Scovill, Inc. [31 EPD ¶33,543 ], 570 F.Supp. 133 (S.D. Ohio 1983) and Venezia v. Scovill, Inc. [35 EPD ¶34,589 ], 592 F.Supp. 3 (S.D. Ohio 1983), for the proposition that claims of age discrimination under Ohio law have often been tried to a jury in federal courts. After a careful reading of these two cases this Court finds as defendant so eloquently stated that nowhere in these cases is the issue of whether an Ohio age discrimination claim may be tried to a jury ever discussed.

Plaintiff also alleges that §2311.04 of the Ohio Revised Code mandates a right to jury trial in this action. Section 2311.04 of the Ohio Revised Code provides a jury trial in actions for the recovery of money damages only. Plaintiff is not solely seeking money damages and thus this section has no bearing on this issue.

After a careful review of the legislative history, and the clear language of section 4101.17 this Court concludes that actions brought under this section are to be tried to the Court and not a jury. Accordingly, defendants’ motion to strike plaintiff’s demand for a jury trial is GRANTED.

[Punitive Damages]

Defendant also seeks an order to strike plaintiff’s demand for punitive damages pursuant to §4101.17 of the Ohio Revised Code. The basis of defendant’s motion is that section 4101.17 specifically enumerates what remedies are available pursuant to it and punitive damages are not included in this list.

In considering questions of state law, this Court is bound by decisions of the highest Court of the state. Ruth v. Bituminous Casualty Corp., 427 F.2d 290 (6th Cir. 1970). However, where no state law is present, the Court must express its best judgment based upon available information, as to how the Ohio Supreme Court would rule if faced with the issue presented by this case. See Tennessee River Pulp v. Eichleay Corp., 708 F.2d 1055, 1057 (6th Cir. 1983).

The Federal Courts in Ohio are in disagreement on the question of punitive and compensatory damages under §4101.17 of the Ohio Revised Code. Bailey v. Container Corporation of America [35 EPD ¶34,732 ], 594 F.Supp. 629 (S.D. Ohio 1984); Merkel v. Scovill, Inc. [31 EPD ¶33,543 ], 570 F. Supp. 133 (S.D. Ohio 1983) (Punitive and compensatory damages are available under §4101.17); Citro v. TRW, Inc., case No. C82-2911 (N.D. Ohio, October 12, 1984), Schlosser v. Firestone Tire Co., 33 F.E.P. cases 1403 (N.D. Ohio 1983) (punitive damages and compensatory are not available).

Just recently, another district court in this district in Garry v. TRW, Inc. [36 EPD ¶35,078 ], 603 F. Supp. 157 (N.D. Ohio 1985), held that “compensatory and punitive damages were an appropriate remedy under Ohio’s age discrimination statute” . Id. at 159. The Court in Garry based its holding upon the proposition that the words “appropriate remedy” in the Ohio Statute allows an expansive award of damages to victims of age discrimination. Id. at 161. However, the Ohio Supreme Court has held that a violation of a provision of §4101.17 by an employer does not give rise to a civil action for damages, but only allows damages as specifically set forth by the legislature in the statute. Fawcett v. G.C. Murphy Co., 46 Ohio St.2d 245 (1976). Based upon Fawcett the Court in Citro and Schlosser declined to grant punitive damages under §4101.17 of the Ohio Revised Code.

Contrary to this position the Court in Garry rationalized that the language “appropriate remedy” and the provision of permitting the award of reinstatement and/or compensation warrants the availability of punitive and compensatory damages under §4101.17 of the Ohio Revised Code.

After a careful review of the Citro, Schlosser, and Garry opinions this Court declines to accept the rationale in Garry and finds that the language “appropriate remedy” does not include the award of punitive damages. Accordingly, plaintiff’s demand for punitive damages pursuant to §4101.17 of the Ohio Revised Code is hereby DENIED.

Finally, defendants’ motion for partial summary judgment to dismiss the second and third counts of the Complaint will be addressed. Count two contains a state claim of age discrimination in violation of Ohio Revised Code section §4101.17. As to Count II the defendants contend that plaintiff cannot present a prima facie case of age discrimination requiring the granting of summary judgment in its favor. The basis of defendants’ argument is that plaintiff was neither laid-off nor replaced by a younger person.

The facts presented by depositions demonstrate that during January 1982 to June 1982 defendants were facing some economic difficulties and plaintiff was given the option of taking a bargaining unit position or going on layoff. (Rudolph Piecuch’s deposition pg. 46). Shortly, after plaintiff refused a bargaining unit position and was laid-off. Plaintiff claims that he was laid-off because of his age and that his replacement was a younger person who was not a member of the protected class.

In, Ohio the Supreme Court has adopted the federal courts analytical framework for determining whether evidence supports a finding that a prima facie case of age discrimination has been established. Barker v. Scovill, 6 Ohio St.2d 146 (1983). Therefore this Court will analyze the present issue pursuant to federal authority.

The Sixth Circuit Court of Appeals has held that the guidelines established for determining discrimination in Title VII actions in McDonnell Douglas v. Green [5 EPD ¶8607 ], 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) can be applied in age discrimination cases. Laugesen v. Anaconda [9 EPD ¶9870 ], 510 F.2d 307 (6th Cir. 1975). In an action under ADEA a prima facie case is made by showing that the plaintiff is a member of a protected class, that the plaintiff was discharged, that the plaintiff was qualified for that position and that he was replaced by a younger person. However the Sixth Circuit Court of Appeals has ruled that these guidelines are not to be applied automatically in every case. Laugesen v. Anaconda, supra, Ackerman v. Diamond Shamrock [28 EPD ¶32,408 ], 670 F.2d 66 (6th Cir. 1982). The Court stated in Ackerman that:

A mechanical application of the McDonnell Douglas guidelines might bar the suit of a worthy ADEA claimant... In other cases, an overly mechanical application could supply an ADEA plaintiff with a triable claim where none exists. Id. at 70.

A prima facie case can be established in other ways. The ultimate issue in an age discrimination case is whether age was a determining factor in the employee’s decision to discharge the plaintiff. Plaintiff can also prove a prima facie case by using statistical information, direct evidence of discrimination and circumstantial evidence other than that used for the McDonnell Douglas text. Blackwell v. Sun Electric Corp. [30 EPD ¶33,268 ], 696 F.2d 1176 96th Cir. 1983). Even if the plaintiff can prove the McDonnell Douglas criteria he must also show that age was a determining factor in the company’s decision to discharge him. The defendants argue that plaintiff cannot do so. In Rose v. National Cash Register Corp. [31 EPD ¶33,485 ], 703 F.2d 225 (6th Cir. 1983) the Court held that a plaintiff established a prima facie case by presenting evidence that he was discharged because of his age. If there is no reasonable inference to suggest that plaintiff was discriminated against because of his age then he has failed to present a prima facie case.

Plaintiff was asked at his deposition if he believed defendant discriminated against him. Plaintiff answered that he believed he was replaced by a person 28 years old. The facts in the record indicate that John Oleska the 28 year old person whom plaintiff claims replaced him was not hired to replace plaintiff but was being trained to assume the position of plant superintendent. The record is devoid of any proof that the defendant’s intent or motive was to replace plaintiff with a younger person. Further, plaintiff has failed to show any evidence that age was a determining factor in his layoff.

The record supports defendant’s contention that plaintiff was offered the option of going on layoff for a legitimate business reason. Economic distress is a permissible basis for discharging (laying-off) employees, as long as such discharges are implemented in a nondiscriminatory fashion. Barker v. Scovill, Inc., 6 Ohio St. 3d 146 (1983). Therefore, plaintiff has not shown a prima facie case of age discrimination requiring that defendant’s motion for partial summary judgment be granted as to Count II of the Complaint.

Count III of the Complaint alleges that plaintiff’s employment was governed by a written contract with defendant which was barred by plaintiff’s layoff. Plaintiff alleges that defendants’ Salaried Employees Handbook constitutes a binding contract with defendant. Defendant alleges that plaintiff was an at will employee and therefore either party could terminate the relationship at any time.

The evidence in this case based upon plaintiff’s own deposition and the affidavit of C.I. Grigoriou establishes that plaintiff was originally hired for an indefinite period of time and that there was never an express or implied employment contract between plaintiff and defendant.

Further, the Salaried Employees Handbook does not constitute a contract but sets forth company rules, regualtions and policies. See: Egan v. Mt. Sinai Hospital, Case No. 44058 (Ct. App. October 30, 1980). Accordingly, defendants’ motion for partial summary judgment as to Count III is Granted.

It is so Ordered.