Byrnes v. LCI Communication Holdings Co. , 77 Ohio St. 3d 125 ( 1996 )

Stratton, J.

The issues presented for review involve the sufficiency of evidence that LCI terminated plaintiffs-appellees on the basis of their age in violation of R.C. 4112.02(N), and the propriety of the damages awarded by the jury. Plaintiffs-appellees contend that evidence of discriminatory remarks demonstrated that a pervasive, discriminatory animus existed at LCI, in particular with Lawrence McLernon, and was sufficient to support a finding of age discrimination. Because we determine that the evidence was not sufficient to support the verdict, we reverse the court of appeals.

R.C. 4112.02 makes it unlawful for an employer to discharge without just cause or otherwise discriminate against a person with respect to any matter related to employment on the basis of age. R.C. 4112.14 (formerly R.C. 4101.17) specifically prohibits an employer from discriminating against a job applicant or discharging without just cause any employee aged forty or older who is physically able to perform the duties and otherwise meets the established requirements of the job.

In Mauzy v. Kelly Services, Inc. (1996), 75 Ohio St.3d 578, 664 N.E.2d 1272, this court clarified the methods for establishing a prima facie case of age discrimination under R.C. 4112.14. The methods are the same for R.C. 4112.02, at issue here. Discriminatory intent may be established indirectly by the four-part analysis set forth in Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146, 6 OBR 202, 451 N.E.2d 807, adopted from the standards established in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. The Barker analysis requires that the plaintiff-employee 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.” Id., paragraph one of syllabus.

Discriminatory intent may also be established by direct evidence of age discrimination, which is evidence other than the four-part demonstration of Barker. Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 575 N.E.2d 439. A plaintiff may establish a prima facie case by presenting evidence, of any nature, to show that an employer more likely than not was motivated by discriminatory intent. Mauzy, 75 Ohio St.3d 578, 664 N.E.2d 1272, paragraph one of the syllabus.

The evidence at trial consisted of remarks by McLernon and other LCI executives as proof of LCI’s discriminatory attitude and continuing animus toward older workers. However, none of the remarks, except for the single reference to Alzheimer’s disease, had any connection to either of these plaintiffs. There was no link or nexus between the remarks and plaintiffs’ discharges that could logically support the inference that the discharges were the result of discriminatory intent. The remarks were distant in time and in fact to plaintiffs’ terminations. Lopez testified as to comments made in 1989, more than one year before these plaintiffs were terminated. Frasher’s and Florek’s testimony related to comments even more remote, dating back to 1985, years before either Byrnes or Otto became employees of LCI.

The remarks did not relate to Byrnes and Otto or the decisions to terminate their employment. They related to other persons and positions within the company, specifically an executive secretary and sales and marketing personnel. Otto was a vice president who worked in operations, and Byrnes was a high level executive.

The isolated statement attributed to McLernon about Alzheimer’s disease, a disease which generally afflicts the elderly, refers only to Otto and may best be characterized as inappropriate and insensitive. This single comment by McLernon is insufficient to form the basis of Otto’s claim for age discrimination, considering that Byrnes made the final decision to terminate Otto, that Byrnes testified that his decision was not related to Otto’s age, and that there is no evidence to the contrary.

Although the record is replete with testimony of LCI’s business woes and tales from former LCI employees, glaringly absent from the record below is evidence which points to age discrimination against these plaintiffs, an observation made by the trial judge when he commented at the close of all evidence that “98 percent of the evidence in the record doesn’t have anything to do with age discrimination.’’ In fact, there is ample testimony of the failure of performance by both Otto and Byrnes.

Even plaintiffs-appellees concede that they do not meet the four-part Barker analysis. Byrnes was the executive who terminated Otto, who was not replaced. Byrnes himself was then terminated and replaced by McLernon, who was older. Therefore, the fourth prong of the Barker analysis was not met, as neither Byrnes nor Otto was replaced by a person outside the statutorily protected class.

Instead, plaintiffs-appellees rely upon evidence in the form of statements by McLernon and other LCI executives over a period of many years to prove discriminatory intent against older workers in general. However, this theory, called the “toothpaste tube” theory by the court of appeals, has no basis in law. The ultimate inquiry in an age discrimination case is whether a plaintiff-employee was discharged on account of age. Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 505, 575 N.E.2d 439, 442. Age-related comments referring directly to the worker may support an inference of age discrimination. However, comments which are isolated, ambiguous or abstract, or made in reference to totally unrelated employee categories cannot support a finding of age discrimination against employees in a wholly different classification. See Phelps v. Yale Security, Inc. (C.A.6, 1993), 986 F.2d 1020, 1025. There must be a link or nexus between the discriminatory statement or conduct and the prohibited act of discrimination to establish a violation of the statute. In Kohmescher, there was a memorandum which recommended that the plaintiff be selected for Kroger’s reduction in workforce because he was “eligible for [the] retirement window.” Here, at best, plaintiffs have an isolated comment by McLernon suggesting one of the plaintiffs, Otto, might have Alzheimer’s disease. Perhaps McLernon was truly concerned about Otto’s status; more likely, he made a joke in poor taste. However insensitive and intemperate these remarks were, they were not tied in time or fact to either Byrnes’s or Otto’s terminations. Consequently, they are simply insufficient to support the jury’s findings that these plaintiffs were discharged on account of their age.

Absent some causal connection or link between an employer’s discriminatory statements or conduct and a plaintiff-employee, there is no permissible inference that the employer was motivated by discriminatory animus to act against the plaintiff-employee. The mere fact that an employer may have discriminated against other employees, standing alone, is insufficient. The issue is whether this employee was discharged because of his age. The evidence here clearly does not support such a causal link or nexus.

Therefore, we hold that, in a cause of action for age discrimination under R.C. 4112.02 or 4112.14, when relying upon the direct evidence standard, which is evidence other than the four-part test of Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146, 6 OBR 202, 451 N.E.2d 807, an employee must prove a causal link or nexus between evidence of a discriminatory statement or conduct and the prohibited act of discrimination to establish a violation. The judgment of the court of appeals is reversed. Based upon our finding of insufficient evidence to sustain the verdicts for plaintiffs-appellees, we need not reach the issue of the propriety of damages.

Judgment reversed.

Moyer, C.J., and Cook, J., concur. Douglas and F.E. Sweeney, JJ., concur in the judgment. Resnick and Pfeifer, JJ., dissent separately.