Age Discrimination Not Shown By Two Former Executives


Lawrence McLernon, the CEO of Ohio-based Litel Communications, Inc., hired Thomas Byrnes to be the President of the small long-distance carrier. When he was hired in 1988, Byrnes was 48 years old.

Three years previously, McLernon had hired Richard Otto at the age of 56. Otto was a vice-president, reporting directly to Byrnes after Byrnes joined the company.

In 1990, Litel acquired another small company, Charter Network Company, and Byrnes was put in charge of the acquisition. Things did not go smoothly, and Otto was blamed for many of the problems. After the acquisition was completed, President Byrnes eliminated Otto’s position, dismissed Otto and reassigned all his duties among other senior executives.

One year later, Byrnes himself was dismissed. CEO McLernon gave Byrnes a series of negative performance evaluations, then finally eliminated his position, discharged him and assumed all the duties of President himself. Byrnes’ departure was publicly described as a “retirement.”

At the time of Byrnes’ dismissal, he was 51 years old. Otto had been 62 when he left the company. Shortly afterward, both men sued Litel, arguing that they had been dismissed because of their ages.

At trial, several witnesses testified that McLernon had remarked on how some older Litel employees “could no longer contribute” and expressed a desire “to bring in young, aggressive staff managers and change out the old folks.” At various times, McLernon had also referred to other employees (not including Otto and Byrne) as “essentially over the hill,” “too old to grasp the concepts that he was looking for” and “too old and tired.”

The only evidence of McLernon’s attitude directly toward Otto and Byrne was from testimony of Byrne. According to Byrne, during the difficult acquisition period McLernon once wondered out loud if Otto suffered from Alzheimer’s Disease, and then repeatedly asked Byrne when he was going to do something about Otto.

The jury considering Otto and Byrne’s complaints awarded them a total of $7.1 million for actual lost wages and punitive damages. Litel appealed.

The Ohio Supreme Court reversed the jury award. First, the Court noted that age discrimination is usually demonstrated by a complainant showing four things: “(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.” In some cases, however, a showing can be made of age-based discipline; nothing in the record showed such to be the case for Byrne or Otto (the Court said the remarks about Otto having Alzheimer’s Disease “may best be characterized as inappropriate and insensitive”).

Otto and Byrne could not show that they had been replaced with younger workers. Indeed, Otto’s position had been eliminated, and his duties absorbed by other existing staff members. Byrne’s position had also been eliminated, and his duties assumed by McLernon himself; the Court noted that McLernon was older than Byrne.

With regard to Otto and Byrne’s contention that McLernon disliked older employees generally, the Court ruled that “there is no permissible inference that the employer was motivated by discriminatory animus to act against the plaintiff-employee. The mere fact that an employer may have discriminated against other employees, standing alone, is insufficient. The issue is whether thisemployee was discharged because of his age.” Otto and Byrne could not show that they had personally been the victims of age discrimination. Byrnes v. LCI Communications Holding Company, December 11, 1996.

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