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IN THE SUPREME COURT OF OHIO CASE NO. 2011-1756
On Appeal from the Cuyahoga County Court of Appeals Eighth Appellate District Case No. CA-10-95763
JOHN D. SOUTHWORTH Plaintiff-Appellee
vs.
NORTHERN TRUST SECURITIES, INC., et al. Defendants-Appellants
PLAINTIFF-APPELLEE JOHN D. SOUTHWORTH'S RESPONSE TO APPELLANTS' MEMORANDUM IN SUPPORT OF JURISDICTION
Shannon J. Polk (0072891) Peter N. Kirsanow (0034196) Counsel of Record Counsel of Record Daniel M. Connell (0078418) Jeremy Gilman (0014144) Haber Polk Kabat, LLP Patrick O. Peters (0079539) 737 Bolivar Rd., Suite 4400 Benesch Friedlander, Coplan & Aronoff Cleveland, Ohio 44115 Aronoff, LLP (216) 241-0700 200 Public Square, Suite 2300 4114-2378 Fax: (216) 241-0793 Cleveland, Ohio 441 1 4-23 7 8 [email protected] (216)3-63-4500 [email protected] Fax: (216) 363-4588 [email protected] Counsel for Plaintiff-Appellee [email protected] John D. Southworth [email protected]
Counsel for Defendants-Appellants Northern Trust Securities, Inc. et al.
^ LFD td0v '1 0 z OI1i NOV 1 0 20€1 CLERK OF COURT SUPREME 0(3URT OF OHIO CLERK OF OpURT SUPREME 0OURT OF OHIO TABLE OF CONTENTS
1. INTRODUCTION ...... 1
A. This Case is Not of Great Public or General Interest ...... :...... 1
B. The Eighth District Articulated and Applied Well-Established Standards Applicable To A Discrimination Claim Arising From A Reduction in Force ...... 1
...... :...... :...... :...... 2 II. STATEMENT OF THE CASE AND FACTS
A. Southworth was Slated for Termination Before the RIF Was Even Announced and Was ...... 2 Compared Against Four Employees Who Were Not Similarly Situated
i. Mr. Southworth Can Only Be Compared to One Other Portfolio Manager, Not Five As Appellants Contend ...... 4
ii. Northern Trust Relies Upon Flawed Data to Criticize Mr. Southworth's Performance ...... :...... 5
iii.According to Their Own HR Official, Appellants' Stated Explanation for Mr...... 6 Southworth's Termination was a "Sham." ......
...... 7 III. LAW AND ARGUMENT
Appellants' Proposition of Law No. 1 ...... :...... 7
A.There is no Requirement that a Plaintiff Alleging Discrimination in a Termination ...... 7 Arising fr-om a RIF Must Show Replacement
B. The Eighth District Properly Applied the "Additional Evidence" Requirement Applicable to RIF Cases ...... 9
Appellants' Proposition of Law No. 2 ...... 12
...... 14 IV. CONCLUSION
11 I. INTRODUCTION
A. This Case is Not of Great Public or General Interest.
Any confusion regarding the proper standard to be applied in an age discrimination claim arising out of a reduction in force lies solely with the Defendants-Appellants.
In deciding this case, the Eighth District Court of Appeals applied the well-established standards for evaluating the prima facie case and pretext showing for an age discrimination claim arising out of a RIF. Far from creating the "complete chaos" that Defendants-Appellants claim, the Eighth District's opinion actually reaffirms well-known standards that have been consistently applied by both Ohio courts and federal courts considering employment discrimination claims stemming from a reduction in force. As such, this case is not one of great public or general interest and this Court should not accept discretionary review.
B. The Eighth District Articulated cendApplied Well-Established Standards Applicable to A Discrimination Claim Arising From A Reduction in Force.
Defendants-Appellants Northern Trust Banks, FSB, et al. (collectively "Northern Trust"
or "Appellants"), argue that this Eighth District dramatically altered the Plaintiffs burden in an
age d-iscr-i -m- ination casearising out of a reduction in force ("RIF"). Specifically, Northern Trust
claims that Plaintiff-Appellee John Southworth cannot "satisfy the well-established burden of
proving that he was replaced, that age was a factor in the decision to terminate his employment,
or that his age was the `real reason' for the termination." Appellants' Memoran'dum in Support
of Jurisdiction at 2. In reality, the Eighth District recited a legal standard wholly consistent with
the cases cited by Defendants. Moreover, the decision below does not conflict with Langlois v.
W.P. Hickman (Cuyahoga App. No. 86930), 2006-Ohio-3737. Far from requiring a plaintiff to
demonstrate replacement, Langlois specifically provided that a plaintiff pursuing a
discrimination claim arising out of a RIF must show "that he was replaced by, or that the
1 discharpe permitted the retention of a person not belonging to the protected class." Id. at ¶ 12
(emphasis added) (citing Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 505-506).' Mr.
Southworth met this standard by demonstrating that his discharge permitted the retention of a less qualified, substantially younger employee. Further, Mr. Southworth also presented evidence from which a reasonable jury could find that Northern Trust's stated reason for his termination was pretextual and that age discrimination was the true motivation.
At bottom, Appellants' contentions reflect nothing more than an unavailing attempt to
elevate their disappointment over an adverse ruling from the Court of Appeals into a broad
challenge on age discrimination jurisprudence in the State of Ohio. This Court should decline to
accept jurisdiction.
II. STATEMENT OF THE CASE AND FACTS
A. Southworth was Slated for Termination Before the RIF Was Even Announced and Was Compared Against Four Employees Who Were Not Similarly Situated.
In defending this case, Northern Trust has provided a tidy explanation to justify Mr.
Southworth's termination: a RIF was announced, Southworth was objectively ranked against
five portfolio managers, and he was only slated for termination when he ended up as the lowest
ranked employee. Defendant Mike Cogan expressly denied having any notion that Mr.
Southworth would be terminated before ranking Mr. Southworth and the five purported
comparators. In reality, as acknowledged by the Eighth District, Northern Trust's termination
decision was "highly suspicious" and included an "unfortunate coincidence" that Northern Trust
failed to explain.
1 Notably, the prima facie case in Kohmescher was based on that from Barker v. Scovill, the case cited by the Eighth District in when reciting the prima facie case.
2 Defendant-Appellant Mike Cogan testified that he first began to consider candidates for inclusion in the RIF in "either later January of 2009, early February" after Northern Trust had announced in December 2008 that it would be conducting a RIF. Contrary to Mr. Cogan's testimony, however, documents produced during discovery actually show that Mr. Cogan had designated Mr. Southworth for termination as early as November 2008, before the RIF was even announced. Mr. Southworth's name appeared on a RIF list exchanged between two high- ranking Northern Trust executives as early as December 1, 2008. Mr. Southworth was the only portfolio manager from Cleveland whose name appeared on this RIF list.
Thereafter, individual Defendants Michael Cogan and Scott Dille discussed their concem that Mr. Southworth, then age 63, could pursue a claim for "age discrimination." Mr. Dille and
Mr. Cogan also discussed the possibility of adding Michael Wagner, then age 45, to be
terminated at the same time as Mr. Southworth, a tactic Northern Trust's own HR official
acknowledges might assist in defending against an age discrimination claim. Thereafter, in early
January 2009, still before he knew about the RIF or had any idea of the selection criteria, Mr.
Cogan authored an e-mail to Mr. Dille explaining his reconsidered decision to designate the
substantially younger Mr. Wagner for termination alongside Mr. Southworth as part of the RIF.
Eventually, Mr. Cogan completed the Job Elimination Recommendation form, a matrix
provided by Northem Trust to assist their managers in designating candidates for inclusion in the
RIF. Mr. Cogan, however, simply completed this form in order to validate the termination of
Mr. Southworth, which had been determined long before. This document, the centerpiece of
Northern Trust's entire defense, is fatally flawed in several ways.
3 i. Mr. Southworth Can Only Be Compared to One Other Portfolio Mana¢er, Not Five As Appellants Contend.
First, Mr. Southworth was purportedly compared with five other portfolio managers. Of those five, four were recently hired by Northern Trust as a result of its acquisition of Lakepoint
Investment Advisors. None of the four employees who came to Northern Trust as a result of the
Lakepoint acquisition can be compared to Mr. Southworth. Three of those employees - Ms.
Laughlin, Mr. Wang and Mr. Thomas -- were under guaranteed employment contracts which would have required them to be paid years of compensation, even if they were terminated as part of the RIF. Notably, Norkhern Trust's own witness, an individual who was instrumental in forging the Lakepoint acquisition and who had responsibility for designating employees for the
RIF, acknowledged that it was unlikely that contract employees Ms. Laughlin, Mr. Wang or Mr.
Thomas would actually have been terminated as part of the RIF. Moreover, the scores assigned to these individuals by Mr. Cogan when completing the RIF matrix were entirely arbitrary and
violated the instructions provided by Northern Trust for completing the RIF.
Likewise, Michael Wagner, the fourth employee who joined Northern Trust by virtue of
the Lakepoint merger, was not similarly situated to Mr. Southworth. Unlike Mr. Southworth, a
Senior Personal Investment Portfolio Manager, Ms. Wagner was an Associate Personal
Investment Portfolio Manager. A Northern Trust witness noted that Mr. Southworth and Mr.
Wagner were "doing different jobs" and therefore cannot be compared. Further, the respective
jobs of Mr. Southworth and Mr. Wagner were described as "apples and oranges." Another
Northern Trust witness admitted that Mr. Wagner was not "the same in terms of his job" as Mr.
Southworth and was not as "high level" as Mr. Southworth.
Based on this analysis, Mr. Southworth can only truly be compared with Donald Watkins,
the only other Northern Trust portfolio manager prior to the Lakepoint acquisition. Thus, the
4 RIF matrix completed by Mr. Cogan is misleading. Mr. Cogan could only fairly be comparing
Mr. Southworth with Mr. Watkins, a colleague in his early 40s, with far less experience in the industry and with Northern Trust.
ii. Northern Trust Relies Upon Flawed Data to Criticize Mr . Southworth's Performance.
Appellants' defense to this case was largely premised on the claim that Mr. Southworth did not perform satisfactorily in "moving assets off the desktop," i.e. "transferring accounts to a[n] entity which basically manages [the accounts] in aggregate with other accounts ... where the portfolio manager is not really involved in the day-to-day decisions of asset allocation and individual security selections." Appellants were highly critical of Mr. Southworth's success in convincing clients to move their assets of the desktop. In contrast, Mr. Watkins was praised for his purported success in the same area.
In reality, Mr. Southworth was actually better than Mr. Watkins at convincing clients to
move assets off the desktop. In fact, Mr. Watkins admitted as much. Indeed, at the time the RIF
termination decisions were made, Mr. Southworth had 46.25% of the assets under his
man-age-ment on the desktop, i.e. still being actively managed. Mr. Watkins had 45.36% of his
assets on the desktop. Because Mr. Southworth's book of business was considerably larger than
Mr. Watkins' book of business (approximately $120 million larger one year before the RIF was
implemented), these figures indicate that Mr. Southworth had actually moved a significantly
higher amount of assets off the desktop than Mr. Watkins. Mr. Southworth's superior
performance in this regard was all the more remarkable given that he had a significantly higher
percentage of "approval accounts," which required client consent before they could be
transferred off the desktop. These facts undermine the rationale provided by Mr. Cogan in completing the RIF matrix wherein he credited the substantially younger Mr. Watkins for "effectively [using] diversified investment solutions strateg[ies]" and criticized the older Mr. Southworth for "not successfully provid[ing] the appropriate diversified investment solutions to clients and prospects."
iii. According to Their Own HR Official Appellants' Stated Explanation for Mr. Southworth's Termination was a "Sham."
According to Defendant Mike Cogan, he followed the RIF process to the letter and only determined who would be terminated as part of the RIF after he had completed the RIF matrix provided by Northern Trust. As indicated above, Defendants Southworth and Dille actually determined who would be terminated well before the RIF was even announced. Only after they had made this determination did Cogan and Dille set about to make it look like Mr. Southworth
had been objectively evaluated as part of the RIF, completing the RIF matrix in a manner to
ensure that Mr. Southworth scored the lowest.
When presented with the conduct of Mr. Cogan and Mr. Dille, which was uncovered
during the course of the discovery process, Northern Trust's HR official was clearly troubled:
Q: C-an we agree that if Mr. Cogan and Mr. Dille got together and decided who they were going to recommend for termination before Mr. Cogan actually completed [the RIF matrix] and predetermined the results of [the RIF Matrix], that the whole document would be misleading?
Mr. Kirsanow: Objection.
Hypothetically, yes.
It would be a sham explanation for a decision, agreed.
Mr. Kirsanow: Objection.
A: Yes.
6 According to their own witness, given the facts uncovered during this case, Northern Trust's entire explanation for how and why Mr. Southworth was selected for termination as part of a RIF is a "sham." In light of this "sham" defense -- which Northern Trust has tried to use to explain their decision to termination their longest standing and most valued portfolio manager in favor of a substantially younger, admittedly less qualified employee -- Northern Trust has gone to great lengths to get this case dismissed without a jury hearing about their conduct. However, after securing a reversal and remand from the Eighth District, Mr. Southworth should be permitted to have his case heard by a jury.
III. LAW AND ARGUMENT
Appellants' Proposition of Law No. 1: In an age discrimination in employment case under Revised Code §4112.02 in connection with a reduction in force, a plaintiffls claim using indirect evidence cannot survive a motion for summary judgment unless the plaintiff 1) demonstrates that the plaintiff was replaced and 2) provides additional direct, circumstantial, or statistical evidence that age was a factor in the decision to terminate the plaintiffs employment.
A. There is no Requirement that a PlaintiffAlleging Discrimination in a Termination Arising from a RIF Must Show Replacement.
A plaintiff alleging discrimination may prove his case through direct or indirect evidence.
Under the indirect method of proof, the court applies the familiar McDonnell Douglas burden
shifting analysis. The elements of the McDonnell Douglas prima facie case require a plaintiff to
demonstrate that he: (1) was a member of a statutorily protected class; (2) was discharged; (3)
was qualified for the position; and (4) was replaced by, or that his discharge permitted the (2004), retention of, a person substantially younger in age. Coryell v. Bank One Trust Co., N.A.
101 Ohio St.3d 175, 2004-Ohio-723, paragraph on of syllabus (emphasis added). In the context
of a reduction in force, the plaintiff must also present "direct, circumstantial, or statistical
evidence tending to indicate that the employer singled out the plaintiff for discharge for
7 impermissible reasons." Schoonmaker v. Spartan Graphics Leasing, LLC (6I' Cir. 2010), 595
F.3d 261, 265.
Northern Trust contends that Ms. Southworth's claim must fail because he cannot show that he was replaced. In support of this argurnent, Appellants rely upon Langlois, supra. In reality, the Langlois court recognized that a plaintiff need not show replacement to make out a prima facie case. In Langlois, the Eighth District articulated the following prima facie standard:
Absent direct evidence of age discrimination, to establish a prima facie case, Langlois must demonstrate (1) that he was a member of the statutorily protected class; (2) that he was discharged; (3) that he was qualified for the position; and (4) that he was replaced by, or that the discharze permitted the retention of, a person not belonging to the protected class.
Id at ¶ 12 (emphasis added). This standard is identical to that which was articulated by the
Eights District in this case.
Northern Trust's claim that a plaintiff in a RIF case must show replacement in order to
establish a prima facie case simply does not withstand scrutiny for several reasons. First, it is
simply illogical. As Appellants point out, a RIF occurs when an employee is terminated and not
replaced. If a plaintiff terminated under such circumstances was required to show replacement,
an employee terminated as part of a RIF would literally never be able to advance a claim of
discrimination through the indirect method of proof. This standard would make it impossible for
a plaintiff alleging discrimination to make out a case except in the ridiculously unlikely scenario
where an employer admits the termination resulted from unlawful motivations.
Second, Langlois does not require a plaintiff in a RIF case to show replacement. After
articulating the exact same standard recited by the Eighth District in this matter, the Langlois
court simply conducted no analysis to determine whether the plaintiffs discharge permitted the
retention of a similarly situated younger employee, given the unique facts of that case. As well,
8 unlike the instant case, there is no evidence that the employer in Langlois conducted a direct comparison of the plaintiff and a substantially younger, less qualified employee. Indeed, it is impossible to tell from the Langlois opinion whether the plaintiff presented any evidence that his termination permitted the retention of a younger employee. Far from providing that a plaintiff in a RIF case must show replacement, the Langlois court simply omitted any analysis of the alternative method of meeting the fourth element of the prima facie case, i.e. that the termination
"permitted the retention" of a younger employee. Appellants attempt to exploit this omission, elevating it to a bright line rule that should somehow sweep aside decades of precedent from this
Court and dozens of federal courts. As the Eighth District correctly recognized, Langlois is simply not consistent with the greater weight of authority on the subject.
B. The Eighth District Properly Applied the "Additional Evidence " Requirement Applicable to RIF Cases.
Appellants also contend that the Eighth District opinion represents an "evisceration of the
requirements that a plaintiff in a RIF case show that age was a factor in his termination." See
Appellants' Memorandum in Support of Jurisdiction at 11-13. In reality, the Eighth District
enunciated the "additional evidence" with great clarity and detail:
This case involves a reduction in force in which a new employee is not hired to replace the terminated employee and the terminated employee's duties are spread out amount the remaining employees. Merillat v. Metal Spinners, Inc. (C.A.7, 2006), 470 F.3d 685, 690. Because a rif necessarily results in the termination of otherwise qualified employees, we have held that "an employer's decision to discharge a qualified, older employer should not be considered `inherently suspicious' because `in a RIF, qualified employees are going to be discharged."' Ramacciato v. Argo-Tech Corp., 8`" Dist. No. 84557, 2005-Ohio-506, at ¶29, quoting Brcoklehurst v. PPG Indus. (C.A6, 1997), 123 F.2d 890, 896. In rif cases, the fourth prong of the prima facie case is modified to require the employee to "offer `additional direct, circumstantial, or statistical evidence tending to indicate that *** [the employer] singled [him] out *** for impermissible reasons."' Kundtz v. AT&T Solutions, Inc., lOth Dist. No. 05AP-1045, §21, quoting Dahl v. Batelle Mem. Inst. l Oth Dist. No. 03AP-1028, 2004-Ohio-3884, at ¶15. See, also Hoffman v. CHSHO, Inc., 12`b Dist. No. CA2004-09-072, ¶24.
9 This prong "may be established through circumstantial evidence that the Plaintiff was treated less favorably than younger employees during the reduction-in-force." Branson v. Price River Coal Co. (C.A.10, 1988), 853 F.2d 768, 771. "The purpose of the additional evidence requirement is to ensure, in reduction of force cases, that the plaintiff has presented evidence to show that there is a chance the reduction in force is not the reason for the termination." 4smo v. Keane, Inc. (C.A.6, 2006), 471 F.3d 58, 593. The burden was thus on Southworth to show that his termination resulted from impermissible considerations of his age.
Southworth, 8th Dist. No. 95763, 2011-Ohio-3467 at ¶25. In considering Appellants' Application for Rehearing En Banc, the Eighth District rejected Appellants' argument that its decision is inconsistent with Rbmacciato and other cases applying the "additional evidence" requirement.
Applying this "additional evidence" standard, the Eighth District found that Mr.
Southworth had introduced compelling evidence that he was a significantly better performer than
the substantially younger individual to whom he was compared. While Appellants deride Mr.
Southworth's comparison of himself and the younger employee as simply "alleging" that he was
"better" or a"better performer" than his lone comparator, the Eighth District concluded,
presumably based on the extensive documentary evidence and the admission of Appellants' own
witnesses, that: "Having shown that he was a better performer than the younger worker,
Southworth satisfied the fourth prong of the prima facie test and raised the inference that he was
singled out for impermissible reasons." Id. at ¶ 30.
As well, though not mentioned by the Eighth District panel, Mr. Southworth can point to
additional evidence to meet the "additional evidence" requirement. Specifically, Northern
Trust's own HR official acknowledged that comments attributed to Mr. Cogan about Mr.
Southworth were age-based and "wrong." Further Appellants' own witness testified that one
could reasonably conclude from such age-based comments that Mr. Cogan was impermissibly
"factoring [Mr. Southworth's] age into [his] employment decision." As well, Mr. Southworth
was told that he was being terminated based on his "anticipated future benefit" to Northern Trust.
10 Even individual Defendant Scott Dille acknowledged that, if he were terminated in favor of a less-capable colleague more than twenty years his junior based upon his "anticipated future benefit," he might well conclude that age factored into the decision.
Further, Mr. Southworth's termination was orchestrated and manipulated by Appellants with the express purpose of defending against the age discrimination claim they expected would be forthcoming. Specifically, after determining that Mr. Southworth would be terminated before the RIF was even announced, Appellants then went about creating a phony matrix, reflecting glaring factual inconsistencies, in order to justify the termination decision. As well, Defendants
Cogan and Dille actually discussed their concern that Mr. Southworth could file an age discrimination claim. It was only then that they decided to designate Mr. Wagner, an employee
who is not comparable to Mr. Southworth, to be terminated as part of the RIF. In fact, Mr.
Wagner appears to have only been formally added to the central RIF list after Cogan and Dille's
selections were vetted by a legal review committee. These circumstances lead Northern Trust's
HR official to concede she would have concerns that age was at play under facts identical to
those presented in the decision to terminate Mr. Southworth. Likewise, Donald Watkins, the 41
year old comparator whose job was spared by Mr. Southworth's termination, admitted that he
would think about suing for age discrimination if he were terminated under circumstances
identical to those in this case.
The Eighth District's opinion makes clear that Mr. Southworth met his burden by
showing evidence from which a reasonable juror could conclude Northern Trust considered Mr.
Southworth's age when terminating him instead of a the substantially younger and considerably
less accomplished Donald Watkins.
11 Appellants' Proposition of Law No. 2: In an age discrimination in employment case under Revised Code §4112.02 in connection with a reduction in force, in order to show pretext, a plaintiff must show both that the employer's statement reason was false and that discrimination was the real reason for the termination.
Finally, Appellants' attack the Eighth District's analysis of the pretext element of the
McDonnell Douglas burden shifting framework. Appellants acknowledge that the Eighth
District articulated the correct standard:
To survive summary judgment, Southworth was required to establish that the reasons offered by Northein Trust for his inclusion in the reduction in force were untrue and a mere pretext for age discrimination. To do this, he must show both that Northern Trust's stated reason was false and that age discrimination was the real reason.
(July 14, 2011 Journal Entry and Opinion at ¶36). The United States Supreme Court has
indicated that, in the context of an age discrimination claim, a"plaintiff s prima facie case of
discrimination..., combined with sufficient evidence for a reasonable factfinder to reject the
employer's nondiscriminatory explanation for its decision may be adequate to sustain a finding
of liability[.]" Reeves v. Sanderson Plumbing Prod., Inc. (2000), 530 U.S. 133, 134, syllabus at
¶ 1. "Proof that the defendant's explanation is unworthy of credence is simply one form of
circumstantial evidence that is probative of intentional discrimination, and it can be quite
persuasive." Id (emphasis added). "In appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation that the employer is dissembling to cover up
a discriminatory purpose. Moreover, once the employer's justification has been eliminated,
discrimination may well be the most likely alternative explanation, especially since the employer
is in the best position to put forth the actual reason for its decision." Id. (internal citations
omitted).
Defendants claim that Mr. Southworth was selected for termination in accordance with
the announced RIF protocol after being objectively compared with five other portfolio managers.
12 Plaintiff has shown every aspect of this to be untrue. Mr. Sourthworth was selected for termination before the RIF was even announced. Mr. Southworth was compared against several colleagues who were not similarly situated based upon flawed data. Finally, the RIF process was manipulated such that Appellants appear to have gone so far as to add a younger comparator to be terminated only after discussing the likelihood of an age discrimination claim.
Northern Trust's own HR official has conceded that, under the facts of this case, the explanation that Mr. Southworth was selected for termination in accordance with the RIF protocol and Mr. Cogan's completion of the RIF matrix was a "sham." That same HR official also conceded that the facts of this case would prompt her to have a concern that "age discrimination was at play."2 Based upon these telling admissions from Appellants own witness,
Mr. Southworth more than satisfied his burden of showing that impermissible considerations of
age likely lead to his termination.3
2 Q: In fairness, what I'm asking you and I'll ask you again, and if you would please answer, I want to know as a 29 and-a-half year veteran in the Human Resources business if you were faced with this scenario, if you would have a concern in your mind th-atage discrimination was at play if Mr. Cogan and Mr. Dille before they ever touched and completed Plaintiff's Exhibit 1[the Job Elimination Recommendation Worksheet] designated Jack Southworth and only Jack Southworth, a 60-plus year old manager under Mr. Cogan's supervision, as the person they were going to recommend for termination, and then subsequently had a conversation about concerns that Mr. Southworth would sue them for age discrimination, and then after that decided that unlike before, they were going to add in the substantially younger by 20 plus years Mike Wagner to terminate next to Mr. Southworth as part of the reduction in force, would that raise concern to you, Ma'am, in your mind that age discrimination was at play, yes or no? Mr. Kirsanow: Objection A: Hypothetically, yes. Q: Hypothetically, yes? A: Yes.
3 Appellants complain that the "Court of Appeals did not find that age was a factor in the decision to terminate Appellee's employment." (Memorandum in Support of Jurisdiction at 3). This statement ignores the proper role of the Court at the summary judgment stage. The
13 IV. CONCLUSION
Accordingly, and for all the foregoing reasons, Plaintiff-Appellee John D. Southworth respectfully requests that this Court decline jurisdiction to hear the appeal of Defendants-
Appellants. As shown above, Defendants-Appellants' appeal does not involve a question of great public or general interest and there is no need for this Court to address a routine employment discrimination case.
Respectfully submitted,
Shannon J. Polk (0072891) Daniel M. Connell (0078418) Haber Polk Kabat, LLP 737 Bolivar Rd., Suite 4400 Cleveland, Ohio 44115 (216) 241-0700 Fax: (216) 241-0739 stiolkA-haberpolk com dconnell(?haberpolk.com
Attorneys for Plaintiff-Appellee John D. Southworth
Appellate Court properly refrained from "find[ing]" one way or another. Instead, the Eighth District simply considered whether, drawing all inferences in his favor, Mr. Southworth had presented sufficient evidence from which a reasonable jury could conclude that his termination was the product of unlawful discrimination.
14 CERTIFICATE OF SERVICE
A copy of the foregoing plairttiff-Appellant's Response to Defendant-Appellees' Memorandum in
Support of Jurisdiction was served via regular U.S. Mail on this 9ffi day of November 2011 upon the following:
Peter Kirsanow, Esq. Jeremy Gilman, Esq. Patrick O. Peters, Esq. Benesch, Friedlander, Coplan & Aronoff LLP 200 Public Square, Suite 2300 Cleveland, Ohio 44114
Shannon J. Polk (0072891) Daniel M. Connell (0078418)
15