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Best Ohio Employment Discrimination Lawyer Answer: Can I sue if the new manager is firing all the Black employees? Can my job replace all the older workers with younger employees to get a more youthful workforce? What type of lawyer do I need to sue my employer for wrongful termination?

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If anyone of you has a younger sibling, you are familiar with the phrase, “me too.” I have two younger brothers. So growing up, I heard “me too” quite often. When I would say, “I want to go to the pool,” it was followed by a “me too.” If I said, “I want to go to the mall,” one of my brothers would chime in with “me too.” If I wanted to have a lemonade stand or paint rocks and sell them door to door in the neighborhood (true story), there would always be a “me too.” While I appreciate having a great relationship with my brothers now (and I sometimes finding myself saying “me too” now also), it wasn’t always that way. On one Sunday morning, my grandfather, who we always have called Pa, took us to McDonald’s for breakfast. Knowing that a “me too” was coming, I refused to order until my younger brother, Danny, ordered first. He wouldn’t. I wouldn’t go first. After about a five minute standoff, Pa took us by our hands, led us back to the car, and took us home. No breakfast.

So what does this have to do with employment discrimination law? Employment discrimination, such as race/color, religion, gender/sex, and national origin discrimination age, disability discrimination can sometimes be proven through what is known as “me too” evidence. Let’s start with some basics. Federal employment laws found in Title VII of the Civil Rights Act of 1964 and Ohio’s R.C. § 4112.02(A) make it illegal for your boss, manager, or supervisor to discriminate against you or retaliated against for complaining or opposing such employment discrimination. Likewise, the Americans with Disabilities Act (“ADA“) and Age Discrimination in Employment Act (“ADEA“) provide like protections for employment discrimination and retaliation based on disability discrimination and age discrimination respectively.

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This brings us to focus of today’s employment discrimination attorney’s blog, Cox v. Kansas City Chiefs Football Club, Inc. (As an aside, it is always fun for a Cleveland Browns fan to have an opportunity to talk about the dysfunction of another sports organization.) Stephen Cox started working for the Chiefs as a maintenance manager in 1998. At the time of Stephen’s hiring, Carl Peterson served as the Chiefs’ president and general manager, supervising both the business side and the football-operations side of the organization. Per evidence at trial, in 2008 Peterson made a statement to longtime employee Ann Roach that there would likely be changes to the Chiefs front office staff because Clark Hunt, the then new chairman and chief executive office “wanted to go in a more youthful direction.” True resulting in a younger workforce. Interim president Denny Thum, who oversaw all business operations was replaced with Mark Donovan (age 43 or 44). Director of Stadium Operations Steve Schneider (age 51) was fired and eventually replaced with David Young (age 34). And, the Chiefs hired Brandon Hamilton (age 39) to the newly created positions of vice president of stadium operations and director of facilities. respectively. Stephen was not given the opportunity to interview for any of these new positions. Instead, at a meeting attended by Young, Hamilton, and the new director of human resources, Kirsten Krug (age 42), the Chiefs fired Stephen. Donovan also testified that he made the decision to fire Stephen allegedly for poor performance and insubordination. Stephen was 61 years old when he was fired. The Chiefs replaced Stephen shortly thereafter by a 37–year–old.

The issue in this case was whether how the Chiefs treated other older employees and the age based comments made to other employees could be presented at trial for the jury to hear. In addition to the ages of other employees and their replacements, his evidence included:

As evidence of the company policy in action, however, Mr. Cox also presented testimony that another employee, then age 60, was told by the Chiefs’ president that he would have been considered for the position of chief financial officer “if [he] weren’t so old.” Further testimony was presented to the jury that, at a directors meeting in January 2011 that Mr. Donovan attended, another high-level manager stated that “[t]hese old people [employees] around here think they’re entitled to everything.”

Essentially, the Chiefs argued that 17 older terminated employees that were expected to testify were not “non-similarly situated former employees” and that the circumstances surrounding their termination was not relevant to Stephen’s termination. The Chief’s also argued that because Stephen’s alleged only a single act of discrimination, and not a pattern or practice of discrimination, he could not offer the testimony of other former employees to show such a pattern or practice of wrongful terminations.

After Stephen sued the Chiefs, he “sought to depose Mr. Hunt and certain other Chiefs officials and later to subpoena Mr. Hunt for trial. The Chiefs opposed the depositions on the basis that Mr. Cox had only pleaded an individual discrimination claim, not a pattern-or-practice claim of discrimination in the workplace.” The trial court blocked Stephen from deposing Hunt and “also quashed a subpoena issued to Mr. Hunt to testify at trial.” Feeling good from this win, the Chiefs moved the trial court to exclude 17 “non-similarly situated former employees” from testify about their terminations by the Chiefs. In response, Stephens made an offer of proof (which is submitting the evidence to the judge outside the presence of the jury) showing “that, over approximately 12 months, a large number of employees over age 40 were either fired or pressured to resign and their job duties were assumed by younger replacements, most of them under 40.”

The trial court granted the Chiefs’ motion to exclude such testimony from these witnesses and explained its ruling on the record during the first day of trial:

My order granting that motion in limine pertains to you calling those 17 witnesses to testify that they were terminated, they have a case of discrimination pending against the Chiefs, and I suppose they’re over forty. If you want to call these witnesses for some other purpose, that is outside my ruling on this motion in limine. …

But I hope I made myself clear as it pertains to my ruling on the Defendant’s Motion in Limine as to those 17 witnesses: nothing about the fact that they’ve been terminated, they have a lawsuit, or that they’re over forty.

The trial court also granted the Chiefs’ request to keep out testimony by former Field Security Supervisor Herman Suhr that he overheard Mr. Pioli say to an unknown person in a stadium hallway: “I need to make major changes in this organization as so many employees of CP [Carl Peterson] are over 40 years old.”

The Supreme Court of Missouri reversed the Court and explained the applicability and admissibility of “me too” evidence:

That Mr. Cox did not plead a company-wide pattern-or-practice claim under Title VII does not affect his right to bring other discrimination claims … This just is incorrect in the same way it is incorrect to say a plaintiff who brings a negligence action is barred from introducing evidence of the fact that the defendant had warranted a product to be free from defects because the plaintiff could have brought a breach of warranty claim but failed to do so. Although this type of evidence may be essential to a breach of warranty claim, that fact is irrelevant to whether it is admissible in a negligence action. The trial court should undertake the same analysis as to whether the evidence is material and probative in the negligence action irrespective of whether the plaintiff also did or did not bring a breach of warranty claim.

 Similarly here, whether Mr. Cox pleaded a hostile work environment claim should not affect the trial court’s analysis as to whether evidence of “me too” firings of other persons over the age of 40 by the Chiefs is relevant as circumstantial evidence supporting Mr. Cox’s individual discrimination claim. A plaintiff is the master of his or her lawsuit and can choose which causes of action to plead. If evidence is not relevant to the claims pleaded, then it should be excluded. But, if it is relevant, then it should be admitted, subject to an individualized balancing of probativeness with prejudice as to each such example of circumstantial evidence of discrimination, regardless of whether any particular piece of evidence would have been admissible on another unpleaded cause of action as well.

Indeed, this is explicitly the case in federal court. In Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 380–81, 38 7 (2008), the United States Supreme Court held that testimony by nonparty employees about discrimination can be relevant in a single-act discrimination case and that any per se exclusion of such evidence would constitute an abuse of discretion. The admissibility of such evidence instead must be determined on a case-by-case basis. Id. This analysis, Sprint directs, is “fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” Id. at 388.

The federal lower courts repeatedly also have recognized that so-called “me too” or “other acts” evidence of “behavior toward or comments directed at other employees in the protected group is one type of circumstantial evidence that can support an inference of discrimination” in the context of single-act employment discrimination claims such as that of Mr. Cox. Hasan v. Foley & Lardner LLP, 552 F.3d 520, 529 (7th Cir.2008) (internal citation and quotation marks omitted); see also Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1287 (11th Cir.2008) (“[T]he ‘me too’ evidence was admissible both because it was probative of the intent of the supervisors of Bagby Elevator to retaliate and discriminate against Goldsmith and was relevant to Goldsmith’s hostile work environment claim”)….

Finally, the United States Supreme Court in Sprint and most subsequent federal cases hold that it is error to reject “me too” evidence based solely on the fact that the other employees had a different supervisor or were fired by a different person. See, e.g., Sprint, 552 U.S. at 382 (noting that none of the “me too” witnesses in that case worked in the same unit as plaintiff, “nor had any of them worked under the supervisors in her chain of command”).13 Rather, as Sprint cautions, the inquiry is “fact based and depends on many factors.” 552 U.S. at 388. There is no one set of agreed-upon factors, and no one factor is dispositive.

Then Supreme Court of Missouri then sacked the Chiefs’ other arguments:

The trial court here was persuaded by the Chiefs’ presentation of federal cases stating that “direct evidence” of discrimination excludes “stray remarks in the workplace,” “statements by nondecisionmakers” and “statements by decisionmakers unrelated to the decisional process itself.” E.E.O.C. v. Liberal R–II Sch. Dist., 314 F.3d 920, 923 (8th Cir.2002) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J, concurring)), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.2011). The distinction between direct and circumstantial evidence was significant in these cases because it controlled whether the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800–01 (1973), for circumstantial evidence cases should apply.

But these cases do not say that “stray comments” or other comments by “nondecisionmakers” are wholly inadmissible; rather, the cases merely say that such comments do not constitute direct evidence. As noted, this Court and others have recognized that direct evidence is rare in the employment discrimination context, see Daugherty, 231 S.W.3d at 818, and so the mere fact that this evidence is circumstantial does not defeat its admission.

Similarly, the fact that a statement was made by a person other than the decisionmaker in Mr. Cox’s case does not preclude its admission. To the contrary, this fact is supportive of Mr. Cox’s theory of the case that his firing was part of a companywide policy of age discrimination carried out by the highest level executives, including Mr. Pioli, who was Mr. Donovan’s counterpart on the football side of the organization. The evidence that Mr. Pioli made this statement in close proximity to the time that Mr. Cox and others over 40 were fired and replaced with younger employees is, for the reasons already noted, relevant circumstantial evidence of what Mr. Cox alleges to be the motivation behind his firing.

So, what is the take away? If your employer makes high level plans to get a younger workforce, or rid the workplace of “problematic” minorities, they cannot expect to escape evidence of this devious plan from coming into evidence because they assigned different members of management to carry the plan into execution by firing each employee separately. I think it is also noteworthy that a blog can be written about a professional sports team without getting carried away with sports puns and jokes.

If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at (216) 291-4744. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.

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