[Cite as Strayer v. Ohio Veterans' Children's Home, 2002-Ohio-1710.]
IN THE COURT OF CLAIMS OF OHIO
JAY M. STRAYER
Plaintiff
:
:
CASE NO. 97-01945
v.
:
OHIO VETERANS’ CHILDREN’S HOME :
Defendants
:::::::::::::::::
{¶1}
DECISION
Judge Fred J. Shoemaker
:
Plaintiff brought this action against defendant alleging age discrimination in violation
of R.C. 4112.02. The case was tried to the court on the sole issue of liability.
{¶2}
Plaintiff was born on August 6, 1934. In 1990, plaintiff was hired as the full-time
business administrator for the Ohio Veterans’ Children’s Home (Home), a position in the
unclassified civil service. Plaintiff was a retired Air Force Lieutenant Colonel prior to being hired by
defendant.
{¶3}
By 1993, the Home was in financial trouble and there was doubt whether the General
Assembly would continue funding the Home. Plaintiff testified that in 1993, Sheridan Jackson was
brought in as superintendent of the Home to improve service and to “tighten the belt.” Jackson was
forty-three years old at the time she was hired.
{¶4}
According to plaintiff, when Jackson assumed her position as superintendent she
began seeking a team of employees who had a background and experience in the field of social
service. Plaintiff did not have a background in social service and admitted that he had not been very
involved in the services side of the Home’s operation during his tenure. Plaintiff testified that he
was appointed acting assistant superintendent by the Board of Trustees to help Jackson “get up to
speed,” with the new position.
{¶5}
Jackson quickly began to “down-size” the Home by reducing staff and shifting
responsibilities to other positions. Plaintiff was asked to assume the duties of certain employees who
were no longer with the Home. Specifically, plaintiff assumed the responsibilities of the security
chief and the maintenance chief in addition to his own duties. Nevertheless, plaintiff and Jackson
began to have personality conflicts soon after Jackson became superintendent. According to
plaintiff, Jackson was “different” from the superintendents he had worked with in the past. Plaintiff
testified that Jackson was hot tempered and unpredictable; that she had an abrasive personality and
frequently used profanity.
{¶6}
Under Jackson’s reorganization plan, a consultant by the name of George Oliver was
hired to draft an employee handbook and a new organizational chart. Plaintiff testified that he was
not happy with the new title, Deputy of Indirect Services, and job duties for which he was slated
under the reorganization scheme. In addition, plaintiff was very displeased with the job description
for the new position, and he was also unhappy with the fact that the position was on the third tier of
the organizational chart. Plaintiff stated that he no longer felt that he was a part of the inner circle.
{¶7}
Jackson testified that she was originally sent to the home to conduct a feasability
study and make a report and that she was then put in the position of superintendent. Her goals as
superintendent were to obtain licensure for the Home and to improve the quality of services
delivered to the children (direct services). Jackson believed that the direct services side of the
organization was a priority. Jackson testified that she wanted plaintiff to assume more responsibility
under the indirect services side of the organization. On September 24, 1993, plaintiff was terminated
from his position upon Jackson’s recommendation.
{¶8}
The employee has the burden of proving a prima facie case of discrimination by a
preponderance of the evidence. Basinger v. Pilarczyk (2000), 137 Ohio App.3d 325, 328; Miller v.
Premier Indus. Corp. (2000), 130 Ohio App.3d 662, 672.
Absent direct evidence of age
discrimination by the employer, it must be shown that the employee was: 1) a member of a protected
class; 2) discharged; 3) qualified for the position; and, 4) replaced by, or the employee’s discharge
permitted the retention of, a person not belonging to the protected class. Ahern v. Ameritech Corp.
(2000), 137 Ohio App.3d 754, 769-770. If a prima facie case is presented, the employer must
articulate some legitimate, nondiscriminatory reason for the employee’s discharge. Basinger, supra
at 328. The burden then shifts back to the employee to prove that the employer’s articulated reason
is merely a pretext; that age discrimination is the true reason for the discharge. Id.
{¶9}
Plaintiff claims that he was replaced by Richard McDonie, who eventually assumed
the position of deputy of indirect services. McDonie is under forty years of age. Defendant argues
that plaintiff’s former position was assumed by two older employees. Upon review of the evidence,
the court finds that plaintiff’s position was, in fact, filled by McDonie and that plaintiff has satisfied
his burden of proof under the first and fourth elements of his prima facie case. There is also no great
dispute that plaintiff was qualified for the position of deputy of indirect services. Indeed, that was
the position earmarked for plaintiff under the new organizational scheme.
{¶10} However, plaintiff did not present any direct evidence that his discharge was
motivated by age discrimination. Consequently, he relied upon circumstantial evidence to establish
his claim.
{¶11} According to plaintiff, twenty-eight employees were terminated after Jackson arrived
and, on average, the employees hired were ten years younger. The court notes that some of the
employees terminated by Jackson were under forty and some of the new hires were older than forty.
Consequently, this evidence does not provide a great deal of support for plaintiff’s claim of age
discrimination.
{¶12} With respect to the second part of the test, the evidence establishes that plaintiff was
eventually terminated by defendant. However, plaintiff testified at trial that he is not sure whether he
would have accepted the position of deputy of indirect services if it had been offered to him.
Additionally, plaintiff admitted that he discussed the position with Jackson and Oliver and expressed
his displeasure. Nevertheless, even if the court were to find that plaintiff set forth a prima facie
claim for age discrimination, defendant has clearly established a legitimate nondiscriminatory reason
for plaintiff’s discharge.
{¶13} Jackson was hired to completely reorganize the Home during a time of extreme
financial pressure and in the face of dwindling support from the State. Jackson determined that the
emphasis should be on the direct services side of the organization. Plaintiff admits that his
background is financial. Additionally, plaintiff was accustomed to a structured military environment
and was asked to work for a supervisor whose methods were unconventional at best. Finally,
plaintiff demonstrated a reluctance to relinquish his control over the financial aspects of the Home
and to assume the position of deputy of indirect services, which involved management of the more
mundane areas of the Home’s business, such as security and building maintenance.
{¶14} Moreover, there is virtually no persuasive evidence that plaintiff’s termination was
related to his age. Although plaintiff testified that Jackson once told him he “looked good for his
age,” this alleged statement is clearly susceptible to an innocent interpretation and the court does not
find it to be persuasive evidence of Jackson’s discriminatory intent. Additionally, plaintiff concedes
that George Oliver was retained in an upper-level management position and that Oliver is over the
age of forty.
{¶15} In the final analysis, it is simply not reasonable to infer from the circumstantial
evidence presented that plaintiff’s termination was motivated by age discrimination. In fact, the
court finds that plaintiff’s discharge was primarily caused by plaintiff’s incompatibility with new
management and with the new structure of the Home. The court further finds that the changes were
necessitated by the extreme financial hardship faced by the Home rather than some scheme or plan to
rid the Home of older employees.
{¶16} For the foregoing reasons, plaintiff has failed to prove his claim of age discrimination.
Judgment shall be rendered in favor of defendant.
FRED J. SHOEMAKER
Judge
Entry cc:
Michael Liss
Attorney for Plaintiff
Fifth Third Center, Suite 950
110 North Main Street
Dayton, Ohio 45402-1769
James P. Dinsmore
65 East State St., 16th Fl.
Columbus, Ohio 43215
LP/cmd
Filed 3-25-2005
Assistant Attorney General
Jr. Vol. 699, Pg. 149
To S.C. reporter 4-15-2002
