Opinion
No. 2003-0426.
Submitted October 21, 2003.
Decided April 21, 2004.
ON ORDER from the United States District Court for the Southern District of Ohio, Eastern Division, Certifying a Question of State Law, No. C:202290.
Tisone Associates Co., L.P.A., and Raymond J. Tisone, for petitioner.
Frost Brown Todd, L.L.C., and George Yund, for respondents.
Gittes Schulte and Frederick M. Gittes, for amici curiae AARP, Ohio Academy of Trial Lawyers, Ohio Employment Lawyers Association, and Ohio Civil Rights Commission.
{¶ 1} We answer the certified question by citing the syllabus in Coryell v. Bank One Trust Co., N.A., 101 Ohio St.3d 175, 2004-Ohio-723, 803 N.E.2d 781:
{¶ 2} "1. Absent direct evidence of age discrimination, in order to establish a prima facie case of a violation of R.C. 4112.14(A) in an employment discharge action, a plaintiff-employee must demonstrate that he or she (1) was a member of the statutorily protected class, (2) was discharged, (3) was qualified for the position, and (4) was replaced by, or the discharge permitted the retention of, a person of substantially younger age. ( Kohmescher v. Kroger Co., 61 Ohio St.3d 501, 575 N.E.2d 439, syllabus, modified and explained.)
{¶ 3} "2. The term `substantially younger' as applied to age discrimination in employment cases defies an absolute definition and is best determined after considering the particular circumstances of each case.
{¶ 4} "3. A plaintiff may plead a prima facie case of age discrimination by pleading `a short and plain statement of the claim showing that the party is entitled to relief.' (Civ.R. 8[A][1], applied.)"
Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer and O'Connor, JJ., concur.
Stratton, J., dissents. O'Donnell, J., dissents.
I respectfully dissent for the reasons set forth in my dissenting opinion in Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-723, 803 N.E.2d 781, ¶ 28-30.