THE NEWS-HERALD
Monday, June 24, 1996

Mentor woman's case key to hope for discrimination litigants

By Tom Prendergast
News-Herald Staff Writer

Until recently, trying to get a discrimination complaint to trial in the 11th Appellate Court District was like trying to squeeze water from a rock, a Painesville lawyer said.

To proceed with a bias claim, litigants in the district - which includes Lake and Geauga counties - had to provide solid proof that they were victims of discrimination, said lawyer Patrick J. Perotti. Circumstantial evidence, such as inference, was prohibited, he said.

"If you had to meet the 11th District rule, you would never win unless the company came right out in court and said, "We fired you because you're too old.' ... They don't ever admit it in writing,'" said Perotti, who successfully argued the issue before the Ohio Supreme Court.

The Supreme Court's June 12 ruling involving Mentor resident Ruth Mauzy's 1992 age discrimination complaint has opened the door for such circumstantial evidence in all Ohio bias cases, Perotti claims. Mauzy's complaint is set to return for trial in Lake County.

Proponents said the Supreme Court ruling will allow true victims of discrimination to have their day in court.

Opponents argued that allowing circumstantial evidence may clog a system which "expeditiously and fairly" sifts out meritless claims.

"This blurring of currently distinct elements would be a step backward in the evolution of employment discrimination law,'" argued the Ohio Chamber of Commerce in a friend of the court brief.

Bringing such cases to trial can prove costly to businesses.

According to the Pennsylvania-based Jury Verdict Research company, the median national award in wrongful termination and constructive discharge cases increased from $131,140 in 1994 to $204,310 in 1995.

Mauzy was 61 when she sued her former employer, Kelly Services Inc., claiming she was forced to resign in 1992. In Mauzy's final performance evaluation, a manager supposedly wrote a note saying, "You can't teach an old dog new tricks," according to court documents.

Her lawsuit was thrown out by Lake County Common Pleas Martin O. Parks. The appeals court upheld Parks' ruling, partially because Mauzy's claims rode on circumstantial evidence.

But the Ohio Supreme Court ruled in a 5-2 decision the case should proceed. Justice Alice Robbie Resnick wrote in the majority opinion that a plaintiff could establish a discrimination claim by directly presenting evidence "of any nature."

Kelly Services' lawyer Daniel Ward said, however, that discrimination complaints still can be dismissed before trial.

Ward said the Supreme Court rejected Mauzy's argument that the burden of proof in the claim should shift from the employee to the former employer.

"Once Perotti comes forth with his circumstantial evidence, he's saying now the employer must prove age was not a factor, and the Supreme Court denied that," Ward said.