Jelinek v. Abbott Laboratories10/27/2005
to his age discrimination claim, based on the "law of the case" doctrine. Under his second assignment of error, plaintiff argues that the trial court erred in granting a JNOV as to his age discrimination claim.
{ } "A motion for judgment notwithstanding the verdict, like a motion for a directed verdict, tests the legal sufficiency of the evidence." Wright v. Suzuki Motor Corp., Meigs App. No. 03CA2, 2005-Ohio-3494, at , citing both Posin v. A.B.C. Motor Court Hotel, Inc. (1976), 45 Ohio St.2d 271, and McKenney v. Hillside Dairy Corp. (1996), 109 Ohio App.3d 164. Therefore, the trial court's granting of a motion for JNOV is reviewed de novo. Luft v. Perry Cty. Lumber & Supply Co., Franklin App. No. 02AP-559, 2003-Ohio-2305, at .
{ } R.C. 4112.02(A) provides as follows:
It shall be an unlawful discriminatory practice:
(A) For any employer, because of the * * * age * * * of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.
{ } R.C. 4112.99 provides that whoever violates Chapter 4112 is "subject to civil action for damages, injunctive relief, or any other appropriate relief."
{ } Defendants argue that although plaintiff may have established a prima facie age discrimination case, Abbott explained the difference in treatment between plaintiff and Mr. Schlies as being consistent with its "in-region reassignment policy." (Defendant's brief, at 14-15.)
{ } "In order to prevail in an employment discrimination case, the plaintiff must prove discriminatory intent." Mauzy v. Kelly Services, Inc. (1996), 75 Ohio St.3d 578, 583. Discrimination may be proven by direct or circumstantial evidence. Temple v. Dayton, Montgomery App. No. 20211, 2005-Ohio-57, at , citing Byrnes v. LCI Communication Holdings Co. (1996), 77 Ohio St.3d 125. In order to establish a prima facie case for age discrimination, the plaintiff must establish that: he is a member of a statutorily protected class; he was subject to adverse action; he was qualified for the position; and he was replaced by a person of substantially younger age. Coryell v. Bank One Trust Co., 101 Ohio St.3d 175, 180, 2004-Ohio-723. The employer may demonstrate a legitimate, nondiscriminatory reason for the adverse employment action. See Mauzy, supra, at 582. The plaintiff may demonstrate that the employer's reason was merely a pretext for unlawful discrimination. Id.
{ } At trial, plaintiff retained the ultimate burden of demonstrating that he was the victim of unlawful discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens (1983), 460 U.S. 711, 103 S.Ct. 1478. In this case, the jury determined that defendants intentionally discriminated against him because of his age based on his transfer to Lake County, Indiana. The facts at trial revealed that plaintiff was one of seven primary care district managers deployed throughout the country in 1997, until the PCDM position was eliminated. Ross sought to retain the individuals as employees even though the PCDM position was eliminated. In the process of redeployment, only two of the seven were offered positions requiring them to relocate: Steve Schlies and plaintiff. At the end of 1997, Mr. Schlies was 36 years old, and plaintiff was 55 years old, with approximately 30 years of experience at Ross. Plaintiff, who had been working in Columbus, Ohio, was offered a territory manager position in the Gary, Indiana territory. This was a demotion in the hierarchy of the sales structure at Ross. Mr. Schlies, who had been located in Milw
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