Kohmescher v. Kroger Co.

575 N.E.2d 439, 61 Ohio St. 3d 501, 1991 Ohio LEXIS 2078, 56 Fair Empl. Prac. Cas. (BNA) 1314
CourtOhio Supreme Court
DecidedAugust 21, 1991
DocketNo. 90-993
StatusPublished
Cited by166 cases

This text of 575 N.E.2d 439 (Kohmescher v. Kroger Co.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kohmescher v. Kroger Co., 575 N.E.2d 439, 61 Ohio St. 3d 501, 1991 Ohio LEXIS 2078, 56 Fair Empl. Prac. Cas. (BNA) 1314 (Ohio 1991).

Opinions

Sweeney, J.

In his complaint before the court of common pleas, plaintiff alleged that Kroger forced him to retire without just cause and that Kroger discriminated against him on account of his age (sixty years) in violation of R.C. 4101.17.1 The issue presented for our determination is whether summary [503]*503judgment was properly granted in favor of Kroger and against plaintiff. For the reasons that follow, we answer such inquiry in the negative, and therefore reverse the judgment of the court of appeals below and remand the cause to the trial court for further proceedings.

A clear reading of R.C. 4101.17 indicates that it was enacted by the General Assembly in order to permit a civil cause of action for aggrieved employees to redress claims of age discrimination.2 See Morris v. Kaiser Engineers, Inc. (1984), 14 Ohio St.3d 45, 14 OBR 440, 471 N.E.2d 471. In Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146, 6 OBR 202, 451 N.E.2d 807, this court held in the first paragraph of the syllabus:

“In order to establish a prima facie case of age discrimination, violative of R.C. 4101.17, in an employment discharge action, plaintiff-employee must demonstrate (1) that he was a member of the statutorily-protected class, (2) that he was discharged, (3) that he was qualified for the position, and (4) that he was replaced by, or that his discharge permitted the retention of, a person not belonging to the protected class. Defendant-employer may then overcome the presumption inherent in the prima facie case by propounding a legitimate, nondiscriminatory reason for plaintiffs discharge. Finally, plaintiff must be [504]*504allowed to show that the rationale set forth by defendant was only a pretext for unlawful discrimination.”

The Barker test for determining the establishment of a prima facie cause of action in age discrimination was a direct adaptation of the evidentiary standards and guidelines established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, which concerned redress of discriminatory employment practices involving race. In Plumbers & Steamfitters Commt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St.2d 192, 20 O.O.3d 200, 421 N.E.2d 128, this court adopted the McDonnell Douglas standards for cases brought under R.C. 4112.02. In Barker, supra, this court approved and slightly modified the McDonnell Douglas standards to fit a claim of age-based wrongful discharge.

A review of the record below indicates that the court of appeals affirmed the summary judgment in favor of Kroger because it believed that plaintiff could not satisfy the second and fourth prongs of the Barker guidelines. In our view, however, the focus of the court below in implementing a strict interpretation of the Barker guidelines has unfortunately caused it to lose sight of the ultimate inquiry of an action brought pursuant to R.C. 4101.17, i.e., whether evidence of age discrimination is present in the case. We believe that plaintiff has presented what can be characterized as direct evidence of age discrimination sufficient to overcome Kroger’s motion for summary judgment. Such direct evidence took the form of Klocke’s written response to Kroger’s requested implementation of its reduction in force (“RIF”). In recommending that plaintiff be selected for the RIF, Klocke clearly indicated that plaintiff was selected because he was “eligible for (the) retirement window.” By strictly applying the Barker standards to the facts sub judice, however, the courts below virtually ignored this clear, direct evidence of age discrimination that made the granting of summary judgment in favor of Kroger unwarranted.

Research indicates that the McDonnell Douglas standards borrowed in Barker, supra, were never intended to be applied strictly. As Chief Justice (then Justice) Rehnquist noted in U.S. Postal Service Bd. of Governors v. Aikens (1983), 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403, 410: “The prima facie case method established in McDonnell Douglas was ‘never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.’ Furnco [Constr. Corp. v. Waters (1978), 438 U.S. 567,] * * * at 577 [98 S.Ct. 2943, at 2949, 57 L.Ed.2d 957, at 967].” See, also, McCorstin v. United States Steel Corp. (C.A.5, 1980), 621 F.2d 749.

[505]*505Moreover, as the high court stated in Trans World Airlines, Inc. v. Thurston (1985), 469 U.S. Ill, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523, 533, with respect to an action brought pursuant to the federal Age Discrimination in Employment Act of 1967 (Section 621 et seq., Title 29, U.S.Code): “ * * * the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination. See Teamsters v. United States, 431 U.S. 324, 358 [97 S.Ct. 1843, 1866, 52 L.Ed.2d 396, 429], n. 44 (1977). The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the ‘plaintiff [has] his day in court despite the unavailability of direct evidence.’ Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (CAI, 1979).”

We agree with the reasoning employed in the foregoing cases and find that strict application of the Barker guidelines has led courts to overlook the ultimate inquiry in age discrimination cases, i.e., whether plaintiff was discharged on account of age. Here, it is evident that the courts below were distracted from making such an ultimate inquiry, even though direct evidence of age discrimination was present. Given the rigid, mechanized and somewhat ritualistic application of Barker, supra, by the courts below, we find that Barker should be slightly modified in order that its guidelines will be correctly applied in R.C. 4101.17 actions in only those situations where direct evidence of age discrimination is not readily discernible. As the court stated in Barnes v. GenCorp., Inc. (C.A.6, 1990), 896 F.2d 1457, 1464: “ * * * the importance of the McDonnell Douglas ‘test’ is its discussion of the elements a plaintiff must prove to establish a prima facie case of discrimination absent direct, circumstantial, or statistical evidence of discrimination.” (Emphasis added.) See, also, Rose v. Natl. Cash Register Corp.

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Bluebook (online)
575 N.E.2d 439, 61 Ohio St. 3d 501, 1991 Ohio LEXIS 2078, 56 Fair Empl. Prac. Cas. (BNA) 1314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kohmescher-v-kroger-co-ohio-1991.