Robert Merkel (83-3874/3893), (84-3530) Michael Cain (83-3875/3894), (84-3532) Jacob Hughes (83-3876/3895), (84-3531), Cross-Appellants v. Scovill, Inc., Cross-Appellee

Citations: 787 F.2d 174; 122 L.R.R.M. (BNA) 2399; 1986 U.S. App. LEXIS 23433; 40 Fair Empl. Prac. Cas. (BNA) 1383; 39 Empl. Prac. Dec. (CCH) 36,053Docket: 84-3532

Court: Court of Appeals for the Sixth Circuit; March 27, 1986; Federal Appellate Court

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Defendant Scovill, Inc. appeals a district court judgment favoring plaintiffs Robert Merkel, Michael Cain, and Jacob Hughes in consolidated actions under the Federal Age Discrimination in Employment Act (ADEA) and Ohio law. The plaintiffs, janitors at Scovill's Cincinnati plant, were involved in an incident on December 18, 1980, where Cain and Hughes allegedly attempted to remove company property under the guise of an authorization pass for scrap lumber, which had been obtained by Merkel. Suspicion arose when a guard questioned the size of the box they were removing. After an investigation initiated by the guard's report, the box was found to contain containers used for finished merchandise. Cain and Hughes were subsequently discharged on December 23, 1980, for unauthorized removal of company property, with both being replaced by younger employees. Cain, aged fifty-two, and Hughes, aged fifty, later filed claims of age discrimination with the EEOC and OCRC. During the investigation, the OCRC requested an affidavit from Merkel concerning the incident, and company officials questioned him multiple times. Merkel initially agreed to a polygraph test but later refused. He eventually provided answers to the OCRC's inquiries in a recorded meeting.

Merkel received an affidavit prepared by Poole, but upon review, he refused to sign it due to inaccuracies. Consequently, he was discharged by Schlesinger for not cooperating with the OCRC investigation and for providing inconsistent statements. Cain, Hughes, and Merkel subsequently filed separate federal court actions against Scovill, which were consolidated for discovery and trial. Cain and Hughes claimed their discharges were based on age discrimination under the ADEA and Ohio law, while Merkel alleged violations of the ADEA's anti-retaliation provisions and wrongful discharge for refusing to commit perjury. Each plaintiff sought reinstatement, back pay, attorney's fees, and damages.

The jury ruled in favor of the plaintiffs on their claims, leading to significant judgments against Scovill. Scovill then moved for judgment notwithstanding the verdict (n.o.v.) and a new trial, which the court denied for all federal claims but granted n.o.v. for Merkel’s wrongful discharge claim, citing insufficient evidence linking his discharge to his refusal to falsify statements. The court did, however, conditionally grant a new trial for Hughes unless he accepted a reduced amount for compensatory damages. Final judgments were entered on November 29, 1983, from which both parties appealed.

The appellate court would only address four specific errors raised, including Scovill's contention that the district court improperly denied its n.o.v. motion regarding Cain and Hughes's ADEA claims, arguing they lacked evidence to support a conclusion that age was a factor in their discharges. The court reiterated that judgment n.o.v. is only appropriate when the evidence leads to a single reasonable conclusion and should not be granted in the presence of conflicting evidence.

The ADEA prohibits employers from discharging individuals based on age, specifically for those aged between forty and seventy. In evaluating age discrimination claims, the key issue is whether age was a determining factor in the employee's discharge. Courts have established that ADEA cases should be assessed individually rather than through a mechanical application of evidentiary standards from other legal precedents. 

In the case at hand, the district court found sufficient evidence to contest a judgment notwithstanding the verdict (n.o.v.) based on three factors: differing treatment of younger employees who allegedly removed company property without authorization, a delayed inquiry into one employee’s actions, and a lack of written policy regarding unauthorized removals. However, the appellate court determined that none of these factors supported an inference of age discrimination against the discharged employees, Cain and Hughes. 

The court highlighted that the younger employees cited by the district court were not "similarly situated" to Cain and Hughes. For example, one younger employee was suspended after mistakenly taking the wrong item, while Cain and Hughes were believed to have intentionally stolen valuable merchandise. Other younger employees received different disciplinary actions that were also distinguishable from Cain and Hughes' circumstances. Furthermore, the lack of inquiry into another employee's actions was justified, as the company had no knowledge of that employee's involvement in the alleged theft. Overall, the evidence presented did not substantiate claims of disparate treatment based on age.

The district court's refusal to grant judgment notwithstanding the verdict (n.o.v.) on the age discrimination claims of Cain and Hughes was deemed erroneous. Scovill's lack of a written anti-theft policy did not imply disparate treatment of older employees. The court concluded that a jury could not reasonably determine that age influenced the discharge of Cain and Hughes. Furthermore, Ohio Rev. Code Ann. Sec. 4101.17(A) prohibits discharging employees aged 40 to 70 without just cause, and following the precedent set in Barker v. Scovill, Inc., it was reiterated that age must be a determining factor in discharge decisions. Since Cain and Hughes failed to provide evidence supporting their federal age discrimination claim, Hughes' state claim under Sec. 4101.17 was also overturned.

Regarding Merkel’s federal retaliatory discharge claim under 29 U.S.C. Sec. 623(d), the court found that Merkel needed to prove that retaliation for his involvement in the investigation of Cain’s claim was a determining factor in his discharge. The district court denied Scovill’s motion for judgment n.o.v. based on Merkel's termination notice, which indicated his refusal to cooperate in the investigation. The court reasoned that while Scovill presented evidence suggesting a legitimate reason for termination, the notice itself could lead a reasonable jury to conclude that he was discharged for his nonparticipation in the investigation, which would violate the ADEA. Therefore, the district court upheld the denial of the n.o.v. for Merkel’s claim.

Section 623(d) of the ADEA prohibits discrimination against an employee for participating in an ADEA investigation. However, it may not apply to cases of nonparticipation, with potential exceptions if an employer requests false statements or does not reasonably believe an employee has relevant information. In this case, the evidence indicated that Scovill did not know or should not have known that the affidavit in question was false, nor was there evidence that Scovill lacked reasonable belief in the employee's possession of relevant information. Additionally, Scovill was directed by the OCRC to obtain the affidavit, supporting the ADEA's aim to resolve discrimination claims efficiently. Consequently, the court concluded that Scovill did not violate the ADEA by discharging Merkel.

On Merkel's wrongful discharge claim under Ohio law, the district court had initially recognized a public policy exception allowing such a claim if an employee is terminated for refusing to commit perjury. However, after the jury ruled in favor of Merkel, the court granted judgment n.o.v. due to insufficient evidence proving that Scovill knew the affidavit was false. The evidence suggested that Schlesinger believed the affidavit accurately reflected Merkel's previous statements, reinforcing the court's decision to grant judgment n.o.v. on the wrongful discharge claim.

Finally, the district court awarded attorney's fees and costs to plaintiffs, but since the plaintiffs did not prevail on any claims, this award was vacated. The judgment is affirmed in part and reversed in part, with the case remanded for dismissal. The appeal was reconsidered after the death of Judge Phillips, with a new panel hearing the case.