Opinion
Case No. 3:02CV7341
August 6, 2003
ORDER
This is an employment discrimination case brought under Ohio's equivalent to the federal age discrimination in employment statute, O.R.C. § 4112.02 and § 4112.09 Plaintiff's complaint also includes claims under ERISA (which he has withdrawn) and a state-law claim for intentional infliction of emotional distress.
Pending is defendants' motion for summary judgment. For the reasons that follow, the motion shall be granted.
Plaintiff began work at the defendant's refinery in 1973. Plaintiff was promoted to a management position in the maintenance department, and occupied such position at the time of his termination in 2002. He was responsible for complying with safety policies and regulations, and setting an example of such compliance for other workers.
There is no question that plaintiff was a capable and well-regarded employee. Nonetheless, due to a safety infraction on April 1, 2002, that was observed by personnel employed by a subcontractor, and called by one of those individuals to the attention of defendant's management, plaintiff was fired.
Plaintiff claims that his termination was due to his age and, as well, in retaliation for a OCRC complaint that the plaintiff had filed seventeen months earlier, in December, 2000. In that charge, plaintiff complained that his failure to receive a promotion was due to age. He did not contend that a warning letter that he had previously received about safety infractions had anything to do with his age.
On November 8, 2001, the OCRC issued notice that it found no violation. This case does not involve that complaint, except to the extent that plaintiff claims his April, 2002, termination was, in part at least, in retaliation for his original OCRC complaint.
After the company fired the plaintiff, it filled his position temporarily with an individual who was older than he. The permanent replacement was two years younger than the plaintiff.
Plaintiff contends that a couple of years before his termination the plant administration had begun a program of terminating older employees, and that, as part of that program, he had been demoted. That demotion had not, however, been accompanied by a reduction in salary.
Plaintiff's statistical expert has provided an opinion, based on the fact that the twenty-five demotions during that period, all of which were of employees over forty years of age, that there are only three chances out of a thousand that all the demotions would be of persons over forty.
Plaintiff also has provided evidence that in the past safety infractions of the kind he acknowledged committing on April 1, 2002, had been committed by other workers, including supervisors, without a disciplinary response from the company. A different plant manager was, however, running the company at the time of plaintiff's termination.
With regard to plaintiff's initial warning letter, which related to past infractions, the plaintiff has provided evidence that he was told by a supervisor that if he had taken a different job, which had been offered to him, he would not have received the warning letter. The company has shown, however, that an intervening application by the plaintiff for a promotion had led to the evaluation of his safety record, which, in turn, led to the warning letter.
In other words, the statement that he would not have received the letter had he taken the first job offered to him was correct: he would have been in that job, and not subject to review, at the time he applied for the later opening. Without the later review, the letter would not have been sent.
Discussion
Defendant contends that plaintiff cannot establish a prima facie case, and that, in any event, plaintiff cannot meet his burden of proving that the company's legitimate articulated reason was pretextual. I agree.
In O'Connor v. Coin Catering Corp. , 517 U.S. 308, 313 (1996), the Supreme Court held that an inference of age discrimination cannot be drawn from the replacement of one worker with another "insignificantly younger" worker. In Bush v. Dictaphone Corp. , 161 F.3d 363, 368 (6th Cir. 1998), the Sixth Circuit held that plaintiff's replacement, who was about five years younger than the plaintiff, was not "substantially younger" than the plaintiff.
Here the age differential was about two years. Other courts have held that such a narrow difference does not satisfy the "substantially younger" criterion. Narin v. Lower Merion Sch. Dist., 206 F.3d 323, 333 n. 9 (3d Cir. 2000) (seven year and two year differentials between replacements and plaintiff not substantial); Grogan v. Savings of America, Inc., 118 F. Supp.2d 741, 755 (S.D.Tex. 1999) (two year differential not substantial); Roberts v. Sears, Roebuck Co., 2000 WL 33422750, *5 n. 1 (W.D.N.C.) (same); Quintiliani v. Massachusetts Bay Transp. Auth., 2000 WL 1801841, *4 (D. Mass.) (suggesting that age differences of two and twelve years were insignificant to establish an inference of age discrimination). These decisions, especially in light of Bush and its holding that a five year differential did not establish an inference of age discrimination, justify granting defendants' motion for summary judgment as to his age discrimination claim.
In any event, I agree with the defendant that it has articulated a legitimate reason — plaintiff's noncompliance with an important safety regulation — that plaintiff has not shown is pretextual. In seeking to meet this burden, plaintiff has produced some evidence that other employees committing similar infractions had not been disciplined in the past.
That may well be so, but it does not matter. The prior incidents occurred under a different plant manager. With a change in regimes can come a change in policy. This is especially true at a refinery, where the risk of injury — to the plant, its workers and others, and the environment — is omnipresent. Safety infractions that may have been disregarded, or not merited the severe sanction of dismissal, can properly be viewed by a different manager as more serious, and as needing a firm response.
Plaintiff has not shown that the manager who terminated him failed to discipline other employees who violated the regulation he admitted having disregarded. He cannot, accordingly, show that similarly situated employees were treated differently than he, Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir. 1992).
To the extent that plaintiff contends that the conventional four-factor prima facie case should not be used in this case, I disagree. His reliance on "mixed motives" and Desert Palace, Inc. v. Costa, — U.S. —, 123 S.Ct. 2148 (2003), cannot prevail. As defendants' reply brief points out, the mixed motives rationale and Desert Palace do not apply to age discrimination cases.
I agree with the defendants that they are entitled to prevail on plaintiff's other two claims. Part of plaintiff's prima facie showing as to his claim of retaliation is that there was a causal connection between his filing of the OCRC complaint and his termination. Morris v. Oldham County Fiscal Court , 201 F.3d 784, 792 (6th Cir. 2000); Canitia v. Yellow Freight Sys., Inc. , 903 F.2d 1064, 1066 (6th Cir. 1990). The seventeen-month hiatus between the filing of the charge and plaintiff's firing is to long to raise an inference of retaliatory animus. Cooper v. City of North Olmsted , 795 F.2d 1265, 1272 (6th Cir. 1986) (four-month interval insufficient to support inference of retaliatory motive). Absentany other proof of anexus between his OCRC complaint and the loss of his job, plaintiff cannot prevail on this claim.
Defendants are also entitled to summary judgment on plaintiffs' claim of intentional infliction of emotional distress. Though, without a doubt, losing one's job after nearly thirty years is a traumatic and deeply upsetting event, the resulting distress, no matter how severe, is, without more, not enough to sustain a claim of intentional infliction of emotional distress.
To state a cause of action for intentional infliction of emotional distress in Ohio, a plaintiff must show:
1. The defendant intended to cause emotional distress, or knew or should have known that his conduct would result in serious emotional distress to the plaintiff;
2. The defendant's conduct was outrageous and extreme beyond all bounds of decency and subsequently can be characterized as utterly intolerable in a civilized community;
3. The defendant's conduct was the proximate cause of plaintiff's psychic injuries; and
4. the plaintiff's emotional distress was serious, and of such a nature that no reasonable person could be expected to endure it.Ekunsumi v. Cincinnati Restoration, Inc. , 120 Ohio App.3d 557, 561 (1997). See generally, Yeager v. Local Union 2 0, 6 Ohio St.3d 369, 375 (1983).
Firing an employee — even one of such long-standing service as the plaintiff — from a refinery for violation of a safety regulation designed to protect his welfare and that of his fellow workers and others hardly constitutes conduct that was "outrageous" or "utterly intolerable in a civilized society." Plaintiff cannot make out a prima facie claim of intentional infliction of emotional distress.
Conclusion
In light of the foregoing, it is ORDERED THAT defendants' motion for summary judgment be, and the same hereby is granted.
So ordered.