The Akron Legal News

Appeals court rules age discrimination suit should go back to court

ANNIE YAMSON
Special to the Legal News
Published: May 7, 2013

The 10th District Court of Appeals in Franklin County last week ruled to remand a 14-year-old case back to the Court of Common Pleas for further proceedings.

David Jelinek initially filed a complaint against Abbott, Ross Products Division on Sept. 10, 2009. He had worked for Ross in various positions for more than 30 years.

In 1997, Jelinek took a new position as a primary care district manager in Columbus. At the time, he was the oldest district manager in the company.

Case history stated that, in an effort to reduce costs, Ross decided to eliminate all primary care district manager positions and they offered Jelinek a demotion to sales representative. The new position involved a transfer, with no change in salary or benefits, to Gary, Ind.

The company also offered Jelinek a severance package, should he choose to end his employment with Ross, and informed him that he could continue to search for jobs within the Abbott organization.

On Oct. 28, 1997, Jelinek injured his back and went on sick leave but he accepted the offer to transfer to Indiana. He remained on leave and then retired on April 1, 1998 after returning to work only a few days in his new territory. He was 55 the time of his retirement.

Jelinek proceeded to sue Abbott, claiming they discriminated on the basis of age and forced him into retirement.

The jury subsequently awarded Jelinek $700,000 in compensatory damages for emotional distress suffered because of age discrimination and $25 million plus attorney fees against Abbott. The court rejected his claim of constructive discharge.

The trial court granted a motion for judgment notwithstanding the verdict and, upon appeal, granted a new trial on the issue of age discrimination.

Jelinek appealed and asserted that the trial court erred in excluding pertinent evidence related to the constructive discharge theory.

The court of appeals found that a new trial on age discrimination was appropriate but that Jelinek had failed to prove that he was forced to retire. The case was retried but eventually assigned to another judge after two mistrials were declared.

Case summary stated that the constructive discharge theory was the subject of more litigation until 2010 when the appellate court found that any new trial would not be able to include the constructive discharge theory due to a mandate in an earlier case.

In 2011 the case proceeded to trial again, this time on the sole remaining age discrimination claim.

A number of preliminary rulings were issued in limine and Jelinek was restricted to presenting only evidence that related to the discrimination claim.

Any evidence involving constructive discharge was prohibited. Jelinek was precluded from referring to the crime rate in Gary, Ind. or the quality of the territory to which he was transferred.

The 2011 trial awarded the verdict to Abbott and Jelinek appealed again, claiming seven assignments of error.

In one of the assignments, Jelinek claimed the trial court erred in excluding evidence relating to the Indiana territory that would not have been unfairly prejudicial to the defendant but would have been favorable to his case. He also stated that the trial court should have prohibited evidence of his personal wealth.

Judge Gary Tyack wrote the majority opinion for the 10th District Appellate Court in which he affirmed the trial court’s decision to allow evidence of Jelinek’s wealth by permitting photos of his large home and beautiful neighborhood.

The appeals court claimed Jelinek made his financial situation an issue when he claimed that his worry about money and inability to pay bills caused emotional distress.

“Even if the evidence would be irrelevant under ordinary circumstances, the photograph became relevant once the defendant put his own personal wealth — or purported lack thereof — at issue,” wrote Tyack.

Tyack also upheld part of Jelinek’s argument on Thursday. The majority opinion of the three-judge panel stated that the trial court erred when it prohibited Jelinek from referring to the dismal state of the sales territory.

“It was highly prejudicial to exclude evidence that the territory had been collapsed before it was given to him, and that his demotion to a collapsed, economically unviable territory led to his emotional distress,” wrote Tyack.

Abbott claimed that the evidence about the quality of the territory was “nothing more than an attempt to introduce constructive discharge evidence for a claim that was no longer part of the case.”

Tyack disagreed when he wrote that “evidence that the territory was collapsed addresses both the issue of pretext and the reason why Jelinek was reluctant to accept the territory.”

The appellate court’s majority opinion stated that the evidence was critical to Jelinek’s ultimate burden of proof and that its exclusion was highly prejudicial.

Judge Julia Dorrian dissented in part from the majority opinion of the appellate panel.

She claimed that the trial court did not err by excluding the evidence because it properly prohibited the question of constructive discharge and wrote that she would affirm the trial court’s decision.

Judge Susan Brown joined Tyack to form the majority. The trial court’s judgment was affirmed in part and reversed in part and the case was remanded for further proceedings.

The case is cited Jelinek v. Abbott Laboratories, 2013-Ohio-1675.

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