[Cite as Southworth v. N. Trust Securities, Inc., 195 Ohio App.3d 357, 2011-Ohio-3467.]




                     Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 95763


                                      SOUTHWORTH,
                                                           APPELLANT,

                                                      v.

                     NORTHERN TRUST SECURITIES,
                            INC., ET AL.,
                                                           APPELLEES.



                                  JUDGMENT:
                            REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-688175

        BEFORE: STEWART, P.J., S. GALLAGHER, J., and ROCCO, J.

        RELEASED AND JOURNALIZED: July 14, 2011

        Haber Polk Kabat, L.L.P., Shannon J. Polk, and Daniel M. Connell, for appellant.

        Benesch, Friedlander, Coplan & Aronoff, L.L.P., Peter N. Kirsanow. Jeremy Gilman,
        and Patrick O. Peters, for appellees.
       MELODY J. STEWART, Presiding Judge.

       {¶ 1} Plaintiff-appellant, John D. Southworth, appeals from a summary judgment

rendered on his age-discrimination claim against his former employer, defendant-appellee,

Northern Trust Securities, Inc. Northern Trust terminated Southworth, a 63-year-old

portfolio manager, during a reduction in force (“rif”) resulting from the meltdown of

financial markets at the end of 2008. Northern Trust claimed to have made the termination

decision by means of objective ranking of the portfolio managers, but Southworth maintained

that the ranking was a pretext for age discrimination because the decision to terminate him

not only predated the ranking but Northern Trust fabricated or otherwise manipulated these

results in order to justify its retention of a younger, less-productive employee. The court

found no direct evidence of discrimination and further found that Southworth failed to make

out a prima facie case of discrimination.

                                              I

       {¶ 2} Southworth brought his age-discrimination claim under R.C. 4112.02(A),

which makes it an unlawful discriminatory practice for any employer to discharge an

employee without just cause because of age. To the extent that the rights set forth in R.C.

Chapter 4112 are similar to those expressed in Title VII of the Civil Rights Act of 1964,

Section 2000 et seq., Title 42, U.S.Code, we can apply federal precedent in interpreting R.C.




                                             2
Chapter 4112. See Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ.

Rights Comm. (1981), 66 Ohio St.2d 192, 196, 421 N.E.2d 128.

       {¶ 3} Age-discrimination claims can be proven in one of two ways: with direct

evidence of discrimination or by establishing a prima facie case of discrimination. See Olive

v. Columbia/HCA Healthcare Corp. (Mar. 9, 2000), 8th Dist. Nos. 75249 and 76349.

Southworth offered evidence of both in opposition to summary judgment, and we consider

that evidence in turn, under the Civ.R. 56(C) standard that we review contested facts in a

light most favorable to Southworth.

                                              II

       {¶ 4} To make a noncircumstantial case under the direct method of proof,

Southworth had to present evidence that, if believed by a jury, would prove that Northern

Trust acted with discriminatory intent; that is, it made an admission or “near admission” that

its decision to terminate Southworth was discriminatory. See Nagle v. Calumet Park (C.A.7,

2009), 554 F.3d 1106, 1114. Direct evidence of discriminatory intent requires more than just

conjecture—it should be evidence that can be interpreted as an acknowledgment of

discriminatory intent by Northern Trust or its supervisors. Hill v. Burrell Communications

Group (C.A.7, 1995), 67 F.3d 665, 667. Under this standard, “only the most blatant remarks,

whose intent could be nothing other than to discriminate on the basis of age will constitute

direct evidence of discrimination.” Damon v. Fleming Supermarkets of Florida, Inc.

(C.A.11, 1999), 196 F.3d 1354, 1359, quoting Earley v. Champion Internatl. Corp. (C.A.11,

                                              3
1990), 907 F.2d 1077, 1081-1082. See also Febres v. Challenger Carib. Corp. (C.A.1,

2000), 214 F.3d 57, 60-61 (direct evidence consists of “statements by a decisionmaker that

directly reflect the alleged animus and bear squarely on the contested employment decision”).

                                              A

       {¶ 5} Southworth’s direct evidence of age discrimination consisted of remarks made

by his supervisors that he was “old school” and “stuck in his ways.”

       {¶ 6} Direct evidence does not include stray remarks in the workplace, statements by

non-decision-makers, or statements by decision-makers unrelated to the decisional process

itself. Twymon v.Wells Fargo & Co. (C.A.8, 2006), 462 F.3d 925, 933. In Rubinstein v.

Admrs. of Tulane Edn. Fund (C.A.5, 2000), 218 F.3d 392, 400-401, the court explained that

comments are evidence of discrimination only if they are “ ‘1) related [to the protected class

of persons of which the plaintiff is a member]; 2) proximate in time to the [complained-of

adverse employment decision]; 3) made by an individual with authority over the employment

decision at issue; and 4) related to the employment decision at issue.” (Citation omitted.)

See also Cooley v. Carmike Cinemas, Inc. (C.A.6, 1994), 25 F.3d 1325, 1330.

       {¶ 7} The remarks at issue were made in early to mid 2007 by Southworth’s

immediate supervisor in a conversation the supervisor had with another employee. The

employee who heard the remarks said that they arose in a conversation concerning the

supervisor’s directive that no new business coming into the office should be assigned to

Southworth. In her deposition, the employee said that Southworth’s supervisor told her that

                                              4
“Jack was not going to be cutting edge or innovative or something of that nature, and was old

school in his approach.”

       {¶ 8} The actual statements made by the supervisor were unclear—the employee who

heard the remarks conceded both in her deposition and affidavit that she could not recall

whether the supervisor used the specific phrases “too set in his ways” and “old school.” She

could only claim that the supervisor used “words to that effect.” For purposes of summary

judgment, however, we must view the evidence in a light most favorable to Southworth and

assume that Southworth’s supervisor made the remarks as alleged. See Civ.R. 56(C).

       {¶ 9} We need not consider whether the remarks were ageist, because we find as a

matter of law that the remarks were too remote in time to support the conclusion that

Southworth’s supervisor made them with the intent to discriminate.           Isolated ageist

comments are insufficient to establish pretext unless they “can somehow be tied to the

employment actions disputed in the case at hand.” Stewart v. Adolph Coors Co. (C.A.10,

2000), 217 F.3d 1285, 1289.        Put differently, the term “direct evidence” normally

contemplates only those “‘statements by a decisionmaker that directly reflect the alleged

animus and bear squarely on the contested employment decision.’” Melendez-Arroyo v.

Cutler-Hammer de P.R. Co. (C.A.1, 2001), 273 F.3d 30, 35, quoting Febres v. Challenger

Caribbean Corp. (C.A.1, 2000), 214 F.3d 57, 60-61.

       {¶ 10} The remarks heard by the employee were made in early to mid 2007, yet

Northern Trust did not terminate Southworth until February 2009, some 18 months later.

                                             5
More importantly, Northern Trust did not make the reduction-in-force decision until

December 2008. At the time the remarks were made by the supervisor, Northern Trust had

not yet completed the merger that resulted in the reduction in force. Additionally, there was

no indication at the time the remarks were made that the supervisor knew that there would be

a reduction in force; hence, the remarks bore no relation to Southworth’s termination. It

follows that the remarks were too remote in time to be probative of discriminatory intent.

See, e.g., Kirk v. Hitchcock Clinic (C.A.1, 2001), 261 F.3d 75, 78 (finding that employer’s

1996 remarks, made in connection with earlier time-barred discriminatory decision, were not

direct evidence relevant to a 1997 employment decision); Oest v. Ill. Dept. of Corr. (C.A.7,

2001), 240 F.3d 605, 611 (noting that “temporal proximity is often crucial to the

[direct-evidence] inquiry” and that a two-year lapse between a remark and an employment

decision “defeat[s] the inference of a ‘causal nexus between the remark and decision to

discharge’”); Yates v. Douglas (C.A.8, 2001), 255 F.3d 546, 549 (remarks too remote in time

when made “one to two years” before termination); Scott v. Suncoast Beverage Sales Ltd.,

PMBA (C.A.11, 2002), 295 F.3d 1223, 1227-1228 (remarks too remote in time when made

“two and one-half years before the termination”).

       {¶ 11} Southworth discovered that in November 2008, Northern Trust’s human-

resources department had produced a list of names, including his, for a possible reduction in

force. He claimed that this proved that Southworth’s supervisor had known far sooner that




                                             6
there would be a reduction in force, so his remarks about Southworth were much more

proximate in time to the rif decision.

       {¶ 12} Southworth’s supervisor testified, however, that he had not seen the list

prepared by the Northern Trust human-resources department and had not participated in any

decision-making process that would have placed Southworth’s name on the list. When

evaluating remarks made by decision-makers, the courts must consider whether those

remarks related to the employment decision at issue.         There was no evidence that

Southworth’s supervisor knew at the time he allegedly made the offending remarks that

Northern Trust would be engaging in a reduction in force, so they cannot be said to have any

bearing on the decision to include Southworth in the rif.

                                             B

       {¶ 13} Southworth also claims as direct evidence of discrimination a stated criterion

for his termination by Northern Trust—that he had a lower “anticipated future benefit” to

Northern Trust than did younger workers who were considered as part of the reduction of

force. Calling this phrase a “smoking gun” of discrimination, he argues that as an older

worker with few working years left before retirement, he would necessarily have a lower

future benefit to the company than a younger worker not so close to retirement age.

       {¶ 14} A letter given to Southworth and all other riffed employees at the time of

their termination contained an attachment titled “Job Elimination.” The attachment gave




                                             7
information on the job titles (but not names) and ages of individuals eligible for and selected

for job elimination.1 It stated:

       {¶ 15} “Economic conditions require managers to reduce expenses. An analysis of

the functions and partners reporting to the President–Midwestern States was conducted, to

determine which jobs or functions could be eliminated consistent with business needs.

Employees were selected for job elimination following an analysis of their performance,

abilities, and anticipated future benefit to the organization relative to their comparator

group.”

       {¶ 16} The flaw with Southworth’s characterization of the phrase “anticipated future

benefit” is that the supervisor who made the decision to terminate Southworth did not use

that language as a factor. The evidence is uncontradicted that Northern Trust gave its

managers very specific criteria to evaluate when deciding who to terminate, but left the final

termination decision to the managers, subject to review by a rif committee. None of those

criteria used the phrase “anticipated future benefit,” and Southworth’s supervisor said that he


           1
       1  Northern Trust claims that the letter was required by Section 626(f)(1)(H) of the Older
Worker Benefit Protection Act (“OWBPA”), Title 29, U.S.Code. That section amended the Age
Discrimination in Employment Act (“ADEA”), to set forth specific requirements for the release of
ADEA claims. Section 626(f)(1)(H) states that if an employer requests an ADEA waiver in
connection with an exit-incentive program or other group-termination program, employees are
required to receive an “age data chart” or similar information that provides the class or group of
employees covered by the program, any eligibility for the program, and any time limits applicable to
the program; the job titles and ages of all individuals eligible or selected for the program, and the
ages of all individuals in the same job classification or organizational unit who are not eligible or
selected for the program.


                                                 8
did not use the phrase as a criteria for selecting employees to be riffed. If the phrase was not

employed as a factor in evaluating who would be riffed, its use in letters sent to announce the

rif decision cannot be said to have been a motivating factor in the supervisor’s decision to

terminate Southworth. It was thus not direct evidence of age discrimination.

       {¶ 17} Even had the phrase “anticipated future benefit” been used as one of the

criteria for deciding who would be riffed, the phrase itself does not indicate a discriminatory

motive. It appeared to be a form of corporate-speak to say that Northern Trust would retain

those employees whose performance and abilities would best serve Northern Trust moving

forward. Northern Trust used the phrase in conjunction with language couched in terms of

“ability” and “performance,” suggesting that it took a competitive approach in deciding

which employees would best serve it in the future. When an employment decision is based

on the exercise of business judgment, the courts will not second-guess it. McKenzie v.

Wright State Univ. (1996), 114 Ohio App.3d 437, 442, 683 N.E.2d 381; Smith v. Goodyear

Tire & Rubber Co. (C.A.8, 1990), 895 F.2d 467, 472; Castleman v. Acme Boot Co. (C.A.7,

1992), 959 F.2d 1417, 1422.

       {¶ 18} Southworth argues that he (and several other witnesses who were not

involved in the rif decision) views the phrase “anticipated future benefit” as showing that

Northern Trust made a direct comparison of age when evaluating which employees would be

included in the rif; thus, a 65-year-old employee would work fewer years than a 40-year-old




                                               9
employee, so he would have a lower “future” benefit to the company. This, he claims, shows

that the phrase “anticipated future benefit” is code for purposeful discrimination.

       {¶ 19} We disagree. It is uncontradicted that Northern Trust used the phrase in a

form letter sent to all riffed employees in all of its affected offices. One other employee

riffed from the Cleveland office was only 45 years of age. If the phrase had the meaning that

Southworth claims it has, Northern Trust would not have riffed this younger employee

because this younger employee would, by Southworth’s definition, have a greater future

benefit than the portfolio managers who were retained, all of whom were older. Likewise,

there was evidence that Northern Trust retained a 75-year-old portfolio manager. Again,

employing Southworth’s logic would indicate that the 75-year-old employee would have

fewer working years remaining than Southworth and hence a lower future benefit, thus

belying his claim that the phrase showed purposeful discrimination.

       {¶ 20} Southworth’s interpretation of the phrase “anticipated future benefit” takes

the innocuous word “future” and applies it after the fact to justify a perceived wrong. That

Northern Trust made the reduction in force based on whom it believed would be the most

productive employee in the future is not direct evidence of age discrimination but a business

judgment that the courts should not second-guess. McKenzie v. Wright State Univ., 114 Ohio

App.3d at 442, 683 N.E.2d 381; Smith v. Goodyear Tire & Rubber Co. , 895 F.2d at 472;

Castleman v. Acme Boot Co., 959 F.2d at 1422. It follows that the court did not err by




                                             10
finding that Southworth failed to present any direct evidence of purposeful age

discrimination.

                                               III

       {¶ 21} Having failed to set forth direct evidence of age discrimination, Southworth

next argues that he made a prima facie case of age discrimination.

                                               A

       {¶ 22} In Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146, 451 N.E.2d 807, the court

adopted the analytic framework established by the United States Supreme Court in

McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, for use in Title VII cases and

modified the elements of a prima facie case of age discrimination:

       {¶ 23} “In order to establish a prima facie case of age discrimination * * * in an

employment discharge action, plaintiff-employee 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 his discharge permitted the retention of, a

person not belonging to the protected class. Defendant-employer may then overcome the

presumption inherent in the prima facie case by propounding a legitimate, nondiscriminatory

reason for plaintiff’s discharge. Finally, plaintiff must be allowed to show that the rationale

set forth by defendant was only a pretext for unlawful discrimination.” Id. at syllabus.

                                               B




                                               11
       {¶ 24} Northern Trust concedes that Southworth meets the first three prongs of the

prima facie test: he was a member of the protected class (over 40 years of age), was

discharged, and was qualified for the position of portfolio manager.

       {¶ 25} 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

among 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

employee should not be considered ‘inherently suspicious’ because ‘in a RIF, qualified

employees are going to be discharged.’ ” Ramacciato v. Argo-Tech Corp., 8th Dist. No.

84557, 2005-Ohio-506, at ¶ 29, quoting Brocklehurst v. PPG Indus. (C.A.6, 1997), 123 F.3d

890, 896. In rif cases, the fourth prong of the prima facie test 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.’ ”

(Citation omitted.) Kundtz v. AT&T Solutions, Inc., 10th Dist. No. 05AP-1045, ¶ 21, quoting

Dahl v. Battelle Mem. Inst., 10th Dist. No. 03AP-1028, 2004-Ohio-3884, at ¶ 15. See also

Hoffman v. CHSHO, Inc., 12th Dist. No. CA2004-09-072, ¶ 24. 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

                                             12
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.” Asmo v. Keane,

Inc. (C.A.6, 2006), 471 F.3d 588, 593. The burden was thus on Southworth to show that his

termination resulted from impermissible considerations of his age.

       {¶ 26} After taking a charge against earnings in anticipation of a nationwide

reduction in force, Northern Trust concluded that it could eliminate two of the six portfolio-

manager positions in its Cleveland office. Both Southworth and a 46-year-old portfolio

manager were riffed.

       {¶ 27} At the time of the reduction in force, the portfolio managers in the Cleveland

office were ages 75, 63 (Southworth), 56, 52, 46, and 41. Three of these portfolio managers

(those aged 75, 56, and 52) were employed under contracts after their former employer,

Lakepoint Investment Partners, merged with Northern Trust in 2008. Their employment

contracts provided for lump-sum payouts in the event they were terminated other than for

cause or disability in an amount equal to the pay the employee would have been entitled to

had the employees been employed for the stated contractual term. These contracts were all

dated October 1, 2008. Two of the contracts ran through December 31, 2011; the third

contract (for the 75-year-old employee) ran through December 31, 2009.

       {¶ 28} Southworth argued that this left only him and the 41-year-old employee as

directly comparable for purposes of the reduction in force. Northern Trust disagrees, arguing

that its retention of the 75-year-old portfolio manager belied any allegation that it acted with

                                              13
an ageist intent. We believe that Southworth is entitled to the inference that those employees

who were under contract were not similarly treated. Northern Trust decided to make the

reduction in force just two months after it signed the contracts with these employees,

suggesting that the employees under contract received favorable consideration in the

reduction in force. Reasonable minds could conclude that Northern Trust may not have

treated the employees under contract the same as those without contracts because it would

have been liable under the employment agreements to pay them up to three years in salary

had they been riffed. Doing so would have nullified any cost savings associated with the

reduction in force. Since Northern Trust cannot directly compare Southworth to those

employees who were recently hired under employment agreements, any direct comparison

must be limited to Southworth and the 41-year-old employee who had been retained.

       {¶ 29} Southworth offered evidence to show that he was a better performer than the

41-year-old. A January 2007 employee review conducted by his supervisor stated that

Southworth’s investment performance “ranked first among Midwest managers at the end of

June.” The supervisor praised Southworth for the way he handled the office after another

portfolio manager left the company and tried to take clients with him: “Jack has don [sic] an

outstanding job in filling the gap, meeting with clients, speaking with them on the telephone

and generally pitching in. His efforts have been very meaningful, certainly in some cases

determinative, in retaining these clients.” Despite the additional workload Southworth




                                             14
voluntarily took on, he effectively managed his own clients, ranking 20th out of 92 portfolio

managers in Northern Trust’s midwest region.

       {¶ 30} Other evidence showed that Southworth managed a “book of business” that

was significantly larger than that managed by the younger portfolio manager. In fact, the

younger portfolio manager acknowledged not only that Southworth managed at least $100

million more in assets than he did, but that Southworth’s book of business generated more

fees for Northern Trust. 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.

                                               C

       {¶ 31} The burden thus shifted to Northern Trust to articulate a lawful reason for

including Southworth in the reduction in force. Barker v. Scovill, Inc. (1983), 6 Ohio St.3d

146, 148, 451 N.E.2d 807. Northern Trust offered employee reviews made closer in time to

the reduction in force that showed that Southworth, more than any other portfolio manager,

had become recalcitrant in implementing certain Northern Trust investment strategies.

       {¶ 32} Out of six portfolio managers considered for the rif, Southworth received the

lowest rating: eight points out of a possible 20 points. The employee that Southworth claims

should have been riffed scored 15 out of 20 points, ranking first among the six being

considered. The supervisor’s rationale for Southworth’s points total was that Southworth had

“not successfully provided the appropriate diversified investment solutions to clients,” that he

                                              15
“has not done a good job of introducing external investment solutions,” and that he “has not

been instrumental in referring and assisting in obtaining new clients.” The comparable

employee, on the other hand, was noted to have “been involved in the majority of new

business opportunities” for the previous two years and was effectively using “diversified

investment solution strategy and continuing to work in implementing the strategy with clients

and prospects.”

       {¶ 33} The “diversified investment solutions” referred to Northern Trust’s desire to

move investment assets “off the desktop,” meaning that portfolio managers would relinquish

day-to-day management of asset allocation and security selection by transferring those assets

to diversified funds that were managed by specialists. Southworth’s failure to diversify client

assets was a point of contention with his supervisor. In a 2007 performance review, the

supervisor noted that Southworth “has not been as pro-active as needed in diversifying client

assets.” By the supervisor’s reckoning, Southworth had moved less than ten percent of the

assets he managed off the desk, while the Northern Trust average was closer to 25 percent.

This became a point of contention, with Southworth openly critical of Northern Trust’s

policy of transferring the assets. When Southworth told his supervisor that many of his

clients refused to have their assets transferred and incur the tax liability associated with

capital gains realized from the transfer, the supervisor found fault with Southworth’s ability

to sell the clients on the benefits of an asset transfer.




                                               16
       {¶ 34} Northern Trust also claimed that even when Southworth managed to move

assets off the desktop, he failed to use the full panoply of investment options provided by

Northern Trust. The supervisor told Southworth, “I would continue to emphasize that your

responsibility as a Portfolio Manager is to educate your clients about the importance of

diversification.” The supervisor claimed that this statement made it plain to Southworth that

Northern Trust was not concerned just with the number of assets that had been moved off the

desktop but in how those assets had been diversified. The supervisor told Southworth that

the need to educate clients was “true, not just in regards [sic] to diversification by asset class,

but in diversification by utilizing different investment solutions and external products” and

that Southworth had the “responsibility of utilizing the full solution set available.”

       {¶ 35} Northern Trust’s criticism of Southworth’s inability or refusal to move assets

off the desktop was a lawful reason for including Southworth in the reduction in force.

                                                D

       {¶ 36} To survive summary judgment, Southworth was required to establish that the

reasons offered by Northern Trust for his inclusion in the reduction in force were untrue and

merely a 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 for his termination.

Chandler v. Dunn Hardware, Inc., 168 Ohio App.3d 496, 2006-Ohio-4376, 860 N.E.2d

1042, ¶ 9.




                                                17
       {¶ 37} Although conceding that Northern Trust’s desire to have portfolio managers

move assets off the desktop was “a big item” and that he had been under a “ridiculous

amount of pressure” to move the assets, Southworth offered evidence that Northern Trust did

not make the same demand on all of its portfolio managers. One of the portfolio managers

who worked under an employment agreement said in deposition: “[H]ave I been told to

move assets off the desktop? No.” The 75-year-old portfolio manager likewise testified that

he had been under no pressure to move his assets under management off the desktop and, in

fact, that no one at Northern Trust had told him to do so.

       {¶ 38} In addition to showing that Northern Trust selectively put pressure on

portfolio managers to move assets off the desktop, Southworth offered evidence to show that

Northern Trust’s directive was, for him, unattainable. Southworth repeatedly told his

supervisor that he could not on his own volition transfer certain accounts off the desktop

because they were “approval” accounts that required client permission. Most of those clients

refused to have their accounts transferred—some because they did not wish to incur tax

liabilities from the sale of certain equities, others because they desired hands-on supervision

by their portfolio manager. The supervisor told Southworth to redouble his efforts, but at the

same time did not place pressure on other portfolio managers. For example, the 75-year-old

portfolio manager who had been retained conceded that even if he had been pressured to

move assets off the desktop, “[i]t would be impossible” because his clients “don’t like a lot

of change.” This is evidence that Northern Trust treated Southworth differently than other

                                              18
portfolio managers, thus raising the spectre of disparate treatment that negates Northern

Trust’s claim that it had a legitimate business reason for choosing to rif Southworth. And to

the extent that Northern Trust made demands on Southworth (as opposed to other portfolio

managers), he is entitled to offer evidence to a jury that Northern Trust imposed an

unattainable goal as evidence of pretext because a jury may reasonably view the goal or

production quota as an effort to set up an employee for failure. Denesha v. Farmers Ins.

Exchange (C.A.8, 1998), 161 F.3d 491, 499 (holding the imposition of unattainable

production goals on an employee was evidence supporting a jury’s finding of discrimination).

       {¶ 39} Southworth did offer evidence that he was able to move certain assets off the

desktop, and that evidence sufficiently conflicted on the quality of his performance compared

to the younger retained portfolio manager to create a triable issue on pretext. When directly

compared to the younger portfolio manager who had been retained following the reduction in

force, Southworth’s numbers were better. Southworth began 2008 with about 70 percent of

his book on the desktop and by the end of 2008 lowered that number to about 42 percent. On

the other hand, the younger portfolio manager started 2008 with about 65 percent of his book

on the desktop and by the end of 2008 lowered that number 45 percent. Southworth achieved

this number despite having a much higher percentage of approval accounts (42 percent for

Southworth versus 14 percent for the younger portfolio manager).

       {¶ 40} Northern Trust disputed the validity of these figures, claiming that they did

not include certain cash accounts that had been given to Southworth. The overall numbers,

                                             19
however, were provided by Northern Trust and made no differentiation between cash and

noncash accounts for purposes of evaluating the total percentage of assets under management

moved off the desktop. Northern Trust cannot argue that the figures it provided were not an

accurate reflection of Southworth’s performance. In any event, a trier of fact could find that

Southworth’s improvement in moving assets off the desktop versus the younger portfolio

manager was compelling, given the much higher percentage of approval accounts

Southworth had.

       {¶ 41} Finally, Southworth offered as evidence of pretext e-mails from Northern

Trust showing that his name had been considered for the reduction in force before the

company had officially announced that it would make a reduction in force. In November

2008, about one month before Northern Trust publically announced that it would be making

in a reduction in force, a Northern Trust human-resources vice president sent an e-mail

containing a rif list of names from the Midwest region. The only names from the Cleveland

office were Southworth’s and his assistant’s. The vice president for human resources

claimed that the list “did not reflect any personnel decisions around the selection of any

individual employees whose positions would be eliminated in connection with the RIF” and

that they were just “names on a page.” Southworth’s supervisor said that he had been

unaware of this list at the time he conducted his own independent evaluation of employees to

be riffed. Nevertheless, a trier of fact could find it highly suspicious that Southworth was the

only Cleveland portfolio manager listed on a reduction-in-force list that had been compiled

                                              20
so far in advance of any official announcement. At no point did Northern Trust explain away

the uncomfortable coincidence between Southworth being just a name on the page and his

being riffed. It moreover failed to explain why, if the rif lists were “just names,” the e-mails

accompanying those lists did not inform those who received them of that fact. On this point

alone, reasonable minds could find that Northern Trust’s explanation lacked plausibility, thus

showing pretext for age discrimination.

                                              IV

       {¶ 42} Civ.R. 56(C) allows summary judgment to be granted when, after the

evidence is viewed in a light most favorable to the nonmoving party, there is no genuine

issue as to any material fact and reasonable minds could conclude only that judgment must

issue as a matter of law. To establish the heightened fourth prong of the prima facie case for

discrimination resulting from a rif, Southworth had to offer additional direct, circumstantial,

or statistical evidence tending to indicate that Northern Trust singled him out for

impermissible reasons. The evidence offered by Southworth would allow reasonable minds

to find that Northern Trust so singled out Southworth and that its stated reasons for

terminating him were pretext for purposeful age discrimination. We therefore find that

Southworth established a prima facie case of age discrimination and that the court erred by

granting summary judgment to Northern Trust.

                                                                            Judgment reversed

                                                                         and cause remanded.

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ROCCO, J., concurs.

GALLAGHER, J., concurs in judgment only.




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