[Cite as Peters v. Rock-Tenn Co.,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

EUGENE N. PETERS : JUDGES: : Hon. John W. Wise, P.J. Plaintiff-Appellant : Hon. Julie A. Edwards, J. : Hon. Patricia A. Delaney, J. -vs- : : ROCK-TENN CO., ET AL : Case No. 10CAE040030 : Defendant-Appellees : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 07-CVH-3-300

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: August 10, 2011

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellees

RUSSELL A. KELM CHRISTOPHER E. HOGAN JOANNE W. DETRICK 5025 Arlington Centre Blvd., Suite 400 37 W. Broad Street Columbus, OH 43220 Suite 860 Columbus, OH 43215 CLIFFORD M. WEISS NOELLE A. ABASTILLAS 541 Village Trace Bldg. 11A, Suite 201 Marietta, Georgia 30067 Delaware County, Case No. 10CAE040030 2

Delaney, J.

{¶1} Plaintiff-Appellant Eugene N. Peters appeals the March 23, 2010 jury

verdict of the Delaware County Court of Common Pleas finding in favor of Defendants-

Appellees, Rock-Tenn Company, Rock-Tenn Services, Inc., Craig Gunckel, and Michael

E. Kiepura on Appellant’s age discrimination claim.

STATEMENT OF THE FACTS AND CASE

{¶2} On March 16, 2007, Appellant filed a complaint in the Delaware County

Court of Common Pleas alleging age discrimination by Appellees. Appellant was an

employee of Rock-Tenn Company and the company terminated Appellant’s

employment on January 10, 2007. Appellant alleged Appellees unlawfully terminated

Appellant’s employment based upon his age. At the time of his termination, Appellant

was 55 years old.

{¶3} Appellees filed a motion for summary judgment on February 1, 2008. The

trial court granted Appellees’ motion for summary judgment and Appellant appealed the

matter to this Court. In Eugene N. Peters v. Rock-Tenn Co.,

, 2008-

Ohio-6444,

, this Court reversed the decision of the trial court to grant

summary judgment and remanded the case to the trial court for further proceedings.

We found there was a genuine issue of material fact as to whether Appellees’ reasons

for terminating Appellant’s employment were mere pretext for impermissible

discrimination.

{¶4} The matter proceeded to a jury trial on March 9 through March 16, 2010.

The following testimony was adduced at trial. Delaware County, Case No. 10CAE040030 3

{¶5} Rock-Tenn Company, based in Norcross, Georgia, produces corrugated

and consumer packaging, such as folding cartons. Appellant, who resides in

Westerville, Ohio, began working for Rock-Tenn in 1981 as a sales person. When

Appellant started with Rock-Tenn, he was responsible for selling quick service

restaurant cartons, which are folding cartons used by restaurants and fast food

establishments. Appellant’s sales territories included the Midwest, mid-Atlantic, Texas,

Arizona, and Wisconsin. Appellant averaged approximately $5 million and $5.5 million

in sales per year.

{¶6} The quick service cartons are primarily produced at Rock-Tenn’s folding

carton plant in Eutaw, Alabama. Dan Williams is the general manager of the Eutaw

plant and has worked for Rock-Tenn since 1974. Because the products Appellant sold

were produced at the Eutaw plant, Dan Williams and Appellant worked closely together

throughout their careers. Williams spoke to Appellant about increasing his sales and

warned that Appellant could lose his job if he did not increase his sales.

{¶7} Conrad Hill, Vice President of Manufacturer Representative Sales, was

Appellant’s supervisor. In 2005, Rock-Tenn purchased a competitor and reorganized

the folding carton sales division. Due to the reorganization, Hill’s position was

eliminated, but he was reassigned as a salesperson with no change in salary or

benefits. Hill was 63 years old at the time and was considering retirement.

{¶8} Appellant’s new supervisor was Appellee, Craig Gunckel, Sales Manager

of the Eastern Division. Gunckel was 34 years old. Before 2005, Appellee, Michael

Kiepura was Senior Vice President of Sales for the Folding Carton Division. After 2005, Delaware County, Case No. 10CAE040030 4

Kiepura was Executive Vice President of the Folding Carton Division. Gunckel reported

to Kiepura.

{¶9} At the time of the reorganization, Hill counseled Gunckel on the sales

people newly assigned to Gunckel. Hill recommended that Gunckel terminate

Appellant’s employment because Appellant demonstrated poor performance and

declining sales. Appellant had decreased sales every year and in the last 39 months

prior to his termination, Appellant only opened one new account. Dan Williams also

recommended that Rock-Tenn terminate Appellant’s employment. Gunckel declined to

terminate Appellant at that time because he felt he could assist Appellant with his sales

performance.

{¶10} When Gunckel met with his newly assigned sales representatives, he

requested that they increase their sales. Appellant stated that Gunckel required

Appellant to increase his sales goal to $10 million per year. Appellant also testified that

Gunckel required Appellant to sell folding cartons other than the quick service cartons

that Appellant was familiar with. Other Rock-Tenn sales people testified that due to the

growth and reorganization of Rock-Tenn, the sales people were expected to sell all of

Rock-Tenn’s folding carton products to a variety of customers and they did so. In 2006,

Gunckel requested that Appellant develop a list of prospective customers. Appellant did

not provide the list to Gunckel until September 2006 and after Gunckel told Appellant

that he would not ask for the list again. Appellant testified that he had difficulty in

developing the list because he was required to look for customers in the Cleveland and

Columbus area that were already being marketed by other Rock-Tenn sales people.

Gunckel denied limiting Appellant to the Cleveland and Columbus markets. Delaware County, Case No. 10CAE040030 5

{¶11} During Appellant’s tenure with Rock-Tenn, Appellant received a bonus in

2006. Appellant also received effective performances on his employment reviews by

Hill when Hill was his supervisor. Cole Harford, Appellant’s largest customer, gave

Rock-Tenn and its sales people a 10 on its customer survey. Williams testified that the

favorable customer survey was through William’s work at maintaining the relationship

with Cole Harford, rather than Appellant’s salesmanship.

{¶12} In December 2006, Rock-Tenn began interviewing Richard Burklew for a

sales position within Gunckel’s division. Richard Burklew was 43 years old. On

January 8, 2007, it was confirmed that Burklew would be coming to Rock-Tenn. On

January 10, 2007, Gunckel terminated Appellant’s employment. Appellees stated that

Appellant’s employment was terminated because of Appellant’s poor sales

performance.

{¶13} Gunckel assigned a portion of Appellant’s sales accounts to Burklew.

Other accounts were assigned to another sales person, manufacturer’s representatives,

and customer service. When Conrad Hill officially retired, a portion of his accounts were

assigned to Burklew.

{¶14} At the conclusion of Appellant’s case in chief, Appellees moved for a

directed verdict. The trial court denied the motion. Appellees renewed their motion for

directed verdict on Appellant’s claim of direct evidence of age discrimination. The trial

court granted the motion. Appellant’s claim of indirect evidence of age discrimination

went to the jury. The jury was supplied with four interrogatories.

{¶15} On March 16, 2010, the jury returned with a verdict. The jury answered

the first interrogatory in favor of the Appellant, finding that Appellant established a prima Delaware County, Case No. 10CAE040030 6

facie case of age discrimination. The jury found in the second interrogatory that by a

preponderance of the evidence, Appellees overcame the presumption of age

discrimination by articulating a legitimate, nondiscriminatory reason for Appellant’s

discharge from employment. In the third interrogatory, however, the jury found by a

preponderance of the evidence that Appellant did not establish that the legitimate,

nondiscriminatory reason given by Appellees for Appellant’s termination was mere

pretext for unlawful discrimination. Accordingly, the jury found in favor of Appellees.

{¶16} Appellant did not file any post-trial motions.

{¶17} It is from this decision Appellant now appeals.

ASSIGNMENTS OF ERROR

{¶18} Appellant raises three Assignments of Error:

{¶19} “I. THE TRIAL COURT ERRED IN COMMENTING ON THE EVIDENCE

TO THE JURY.

{¶20} “II. THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY

ON AGE DISCRIMINATION.

{¶21} “III. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION

FOR DIRECTED VERDICT ON THE ISSUE OF DIRECT EVIDENCE OF AGE

DISCRIMINATION.”

I.

{¶22} Appellant contends in his first Assignment of Error that the trial court made

comments on the evidence that were prejudicial to Appellant. Delaware County, Case No. 10CAE040030 7

{¶23} Appellant points to two statements made by the trial court during

Appellant’s cross-examination of Appellee, Michael Kiepura. In the first instance, the

interaction was as follows:

{¶24} “Q. In the period of December of 2006 in January of 2007, the Company

hired Richard Burklew and terminated Gene Peters; is that right?

{¶25} “A. Yes.

{¶26} “Q. And at what point in the discussions in December of 2006 was it

decided that the place to put Richard Burklew was principally into Gene Peters’s

customers?

{¶27} “THE COURT: Counsel, you’re putting inferences in your questions that

have not been established by any of the facts. Ask a question based upon facts, not

your intuition.

{¶28} “MR. KELM: I have, Your Honor. We’ve established through evidence that

no other salesman other than –

{¶29} “THE COURT: There is no testimony, sir, that Mr. Burklew replaced Gene

Peters.” (T. 643).

{¶30} Appellant argues the issue Appellant was developing was the element of

replacement on Appellant’s claim for a prima facie case of indirect evidence of age

discrimination. Appellant states trial court’s comment influenced the jury on the issue of

Appellant’s replacement by Richard Burklew.

{¶31} Appellant argues the second exchange with the trial court affected

Appellant’s ability to show the element of pretext. The second exchange was as

follows: Delaware County, Case No. 10CAE040030 8

{¶32} “Q. And was there any other salesman in the company that you’re aware

of in 2006 that had a restriction of one city or two cities to where they could sell folding

cartons?

{¶33} “A. I’m not aware that Gene had a restriction of –

{¶34} “Q. I’m just asking if there’s any salesman that you’re aware of in 2006

that had a restriction to one or two cities to selling folding cartons.

{¶35} “A. I’m not aware of any salesman who had any restriction on a city or two,

is that what you’re saying?

{¶36} “Q. Right.

{¶37} “A. I’m not aware of any salesman having that restriction.

{¶38} “Q. So if, indeed, Gene Peters had been told he could sell in Columbus

and he could sell in Northeast Ohio and he needed to clear those customers, that was

contrary to what any other salesman had as a restriction; is that true?

{¶39} “MR. WEISS: Objection.

{¶40} “THE COURT: Sustained. That’s a complete misinterpretation of what he

just testified to. He said there were no restrictions.

{¶41} “MR. KELM: But the testimony before, Your Honor, was that Mr. Peters

was told he could sell specifically in Columbus and specifically in Northeast Ohio.

{¶42} “THE COURT: He wasn’t restricted to those locations. There’s no

testimony that says he was restricted to those two locations.

{¶43} “MR. KELM: That was his testimony.

{¶44} “THE COURT: Not according to my notes.” (T. 656-657). Delaware County, Case No. 10CAE040030 9

{¶45} Counsel for Appellant objected to the trial court’s comments and moved

the trial court for a curative instruction or a mistrial. The trial court denied the motion.

During the charge to the jury, the trial court stated, “If, during the course of the trial, I

said or did anything that you consider an indication on [sic] my views on the facts, you

are to disregard the same.” (T. 1351).

{¶46} The decision whether to grant a mistrial is one addressed to the sound

discretion of the trial court. Quellos v. Quellos (1994),

,

. This Court may not substitute its judgment for that of the trial court absent

an abuse of discretion.

An abuse of discretion connotes more than an error of law or

judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore (1983),

,

.

A mistrial should only be granted where the party seeking the same demonstrates that

he or she suffered material prejudice so that a fair trial is no longer possible. State v.

Franklin (1991),

,

.

{¶47} The scope of cross-examination is governed by Evid.R. 611(A), which

provides:

{¶48} “The court shall exercise reasonable control over the mode and order of

interrogating witnesses and presenting evidence so as to (1) make the interrogation and

presentation effective for the ascertainment of the truth, (2) avoid needless consumption

of time, and (3) protect witnesses from harassment or undue embarrassment.”

{¶49} The Tenth District Court of Appeals, in Dublin Transp., Inc. v. Goebel

(1999),

,

utilized the criteria found in State v.

Wade (1978),

,

to determine whether a trial judge's Delaware County, Case No. 10CAE040030 10

remarks were prejudicial in a civil case. In Wade, the Ohio Supreme Court held that a

reviewing court must adhere to the following rules: (1) the burden of proof is placed

upon the complaining party to demonstrate prejudice, (2) it is presumed that the trial

judge is in the best position to decide when a breach is committed and what corrective

measures are called for, (3) the remarks are to be considered in light of the

circumstances under which they are made, and (4) consideration is to be given to their

possible effect upon the jury and the possible impairment of the effectiveness of

counsel. State v.

.

{¶50} We first find Appellant can show no prejudice as to the trial court’s

comments regarding Appellant’s replacement by Richard Burklew because of the jury’s

affirmative finding on the first interrogatory that Appellant had established a prima facie

case of age discrimination through indirect evidence. In order to show a prima facie

case of age discrimination through indirect evidence, Appellant proved by a

preponderance of the evidence that Appellant was replaced by, or his discharge

permitted the retention of, Richard Burklew.

{¶51} We find no prejudicial error as to the trial court’s second comment.

Appellant testified that Gunckel limited Appellant to selling new folding carton products

in the Cleveland and Columbus markets. (T. 233, 243). Gunckel, however, testified

that he did not limit Appellant to Cleveland or Columbus. (T. 1114-1115). Kiepura

testified that no sales person had a restriction on their markets. We find in this instance

the trial court properly limited the scope of Appellant’s cross-examination of Kiepura

based on Evid.R. 611(A). Further, the trial court gave the jury a curative instruction to

disregard its comments and the “presumption always exists that the jury has followed Delaware County, Case No. 10CAE040030 11

the instructions given to it by the trial court.” Pang v. Minch (1990),

,

, at paragraph four of the syllabus.

{¶52} Appellant’s first Assignment of Error is overruled.

II.

{¶53} Appellant argues in his second Assignment of Error that the trial court

erred in its instructions to the jury on age discrimination.

{¶54} Under Ohio law, a prima facie case of age discrimination may be proved

either directly or indirectly. An employee “may establish a prima facie case of age

discrimination directly by presenting evidence, of any nature, to show that an employer

more likely than not was motivated by discriminatory intent.” Mauzy v. Kelly Services,

Inc. (1996),

,

, paragraph one of the syllabus; Smith

v. E.G. Baldwin & Assoc., Inc. (1997),

,

. If,

however, the employee is unable to establish a causal link or nexus between the

employer's discriminatory statements or conduct and the act that allegedly violated the

employee's rights under the statute, then the employee has not proved age

discrimination by the direct method of proof. See Byrnes v. LCI Communication

Holdings Co. (1996),

,

, cert. denied (1997),

,

,

. Without direct proof of discrimination, an

employee may establish a prima facie claim of age discrimination indirectly by

demonstrating 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. Coryell v. Bank One

Trust Co., N.A.,

,

,

, at ¶ 20. Delaware County, Case No. 10CAE040030 12

{¶55} Once an employee establishes a prima facie case of age discrimination,

the burden shifts to the employer to provide some legitimate, nondiscriminatory reason

for the action taken. Kohmescher v. Kroger Co. (1991),

,

. If the employer establishes a nondiscriminatory reason, the employee then

bears the burden of showing the employer's proffered reason was a pretext for

impermissible discrimination. Owens v. Boulevard Motel Corp. (Nov. 5, 1998), 10th Dist.

No. 97APE12-1728; Cruz v. South Dayton Urological Associates, Inc. (1997),

,

. The employee must prove the employer's

nondiscriminatory reason was false and discrimination was the real reason for the

action taken. Wagner v. Allied Steel & Tractor Co. (1995),

,

.

{¶56} Appellant states the trial court abused its discretion in refusing to give

Appellant’s proposed jury instructions on age discrimination. Specifically, Appellant

argues the trial court failed to give the correct prima facie case and burden shifting

instruction and failed to correctly define “qualified,” “replacement,” and “pretext.”

{¶57} To establish reversible error in the trial court's failure to give the requested

jury instruction, Appellant must first show the trial court's refusal to give a proposed jury

instruction was an abuse of discretion. Jaworowski v. Med. Radiation Consultants

(1991),

,

. In order to find abuse of discretion, we

must determine the trial court's decision was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore (1983),

,

. Generally, the court should give a proposed jury instruction if it is an accurate

statement of the law applicable to the facts presented at trial and reasonable minds Delaware County, Case No. 10CAE040030 13

might reach the conclusion sought by the instruction. Murphy v. Carrollton Mfg. Co.

(1991),

,

. Second, Appellant must demonstrate

that they were prejudiced by the court's refusal to give the proposed instruction.

Jaworowski v. Med. Radiation Consultants (1991),

,

.

{¶58} We first address Appellant’s claimed error on the trial court’s prima facie

case and burden shifting instruction. Appellant argues the trial court failed to use the

preferred jury instruction for age discrimination based on indirect evidence found under

OJI §533.03. A review of the trial transcript shows the contrary. The trial court utilized

OJI §533.03 that states the employee may prove his discrimination by presenting

indirect evidence that age was a determining factor for his discharge. (T. 1338). The

instructions further quote directly from OJI §533.03 to explain “determining factor.” (T.

1338-1339).

{¶59} The jury instructions go on to explain how Appellant must establish a

prima facie case of age discrimination through indirect evidence and the burden-shifting

method. The trial court utilized the established Ohio law on age discrimination as stated

above. We find the trial court did not abuse its discretion in using Ohio law for its jury

instructions nor did the Appellant suffer prejudicial error by the trial court’s reliance on

Ohio law for the jury instructions.

{¶60} Appellant next argues the trial court erred in its definitions for “qualified”

and “replacement.” The jury instructions and verdict forms were supplemented by four

jury interrogatories. The first interrogatory asked if the jury found by a preponderance of Delaware County, Case No. 10CAE040030 14

the evidence that Appellant had established a prima facie case of age discrimination.

The jury instructions stated:

{¶61} “In order to establish a prima facie case of age discrimination by indirect

evidence, Mr. Peters must prove by the greater weight of the evidence that 1, he was a

member of the statutorily protected class; 2 was discharged; 3 he was qualified for the

position; and 4, that was replaced by, or the discharge permitted the retention of, a

person of substantially younger age.” (T. 1339). (Emphasis added.)

{¶62} The jury answered “yes” to the first interrogatory that Appellant had

established a prima facie case of age discrimination.

{¶63} The first interrogatory asked if Appellant proved a prima facie case of age

discrimination, which was defined within the jury instructions to include the elements of

“qualified” and “replaced.” We can find no error prejudicial to Appellant when Appellant

successfully established a prima facie case of age discrimination as demonstrated by

the first interrogatory.

{¶64} Appellant finally argues the trial court erred in its definition of “pretext.”

The jury instructions stated as follows:

{¶65} “If the employer articulates a non-discriminatory reason, the employee

then bears the burden of showing that the employer’s proffered reason was a pretext

[f]or impermissible discrimination. The employee must prove the employer’s non-

discriminatory reason was false and that discrimination was the real reason for the

action taken.” (T. 1340).

{¶66} Appellant argues the correct method of determining pretext is found within

Manzer v. Diamond Shamrock Chemicals Co. (C.A. 6, 1994),

. The Delaware County, Case No. 10CAE040030 15

instruction provided by the trial court is well-settled Ohio law as relied upon in Williams

v. City of Akron,

,

,

. The Ohio

Supreme Court further stated that while we are able to look to federal interpretation of

analogous statutes, we are not bound to apply such case law. Id. at ¶ 31.

{¶67} Appellant’s second Assignment of Error is overruled.

III.

{¶68} Appellant argues in his third Assignment of Error that the trial court erred

when it granted Appellees’ motion for directed verdict on Appellant’s claim of direct

evidence of age discrimination. We disagree.

{¶69} As stated above, Appellant can establish a prima facie case of age

discrimination through direct or indirect evidence of discrimination. An employee “may

establish a prima facie case of age discrimination directly by presenting evidence, of

any nature, to show that an employer more likely than not was motivated by

discriminatory intent.” Mauzy v. Kelly Servs., Inc. (1996),

,

, paragraph one of the syllabus. If the employee is unable to establish a

causal link or nexus between the employer’s discriminatory statements or conduct and

the act that allegedly violated the employee’s rights under the statute, then the

employee has not proved age discrimination by the direct method of proof. See Byrnes

v. LCI Communication Holdings, Co. (1996),

,

.

{¶70} Appellant states that the direct evidence of Rock-Tenn’s discriminatory

intent can be shown by a comment made to Appellant by Dan Williams, the general

manager of the Eutaw plant. Appellant testified that Dan Williams told Appellant that he

and Appellant were “old Rock-Tenn” and they would be fortunate to be there in another Delaware County, Case No. 10CAE040030 16

two or five years. Dan Williams stated at trial that his comment about “old Rock-Tenn”

had nothing to do with age: “[i]t had to do with a concept, a philosophy. When we went

there when I was 20 or 30 years old, Rock-Tenn was a small company, had a different

set of rules. * * * When the Company started buying other companies, we brought in

other people, the Company changed and you had to change or else you were not there.

* * * I’d tell him, don’t become part of the old Rock-Tenn, get out of that mode. You’ve

got to think about the new Rock-Tenn; move forward, change. * * * Gene and I had very

frank conversations. And it had nothing to do with age. It was the growing of the

company, growing of Eutaw that if we didn’t grow sales, produce products, make a profit

for Rock-Tenn, that we would not be there.” (Tr. 792-794).

{¶71} Appellees moved for a directed verdict at the close of Appellant’s case,

but the trial court denied the motion. Appellees renewed their motion for directed

verdict at the close of all evidence arguing that Appellant failed to establish direct

evidence of discrimination. A trial court can grant a motion for a directed verdict only

after finding that reasonable minds could reach but one conclusion on any determinative

issue and that conclusion is adverse to the party opposing the motion. Civ.R. 50(A)(4).

This “reasonable minds” test calls upon a court to determine only whether there exists

any evidence of substantial probative value in support of the claims of the non-moving

party. Akers v. Saulsbury, 5th Dist. No. 2008–CAE–12–0070, 2010–Ohio–4965, ¶ 10.

We must construe the evidence most strongly in favor of the party against whom the

motion is made and neither weigh the evidence nor determine the credibility of the

witnesses in ruling upon a motion.

Our review of the trial court's disposition of the

motion is de novo.

Delaware County, Case No. 10CAE040030 17

{¶72} We find the trial court correctly determined that reasonable minds could

only conclude that the evidence reviewed in a light most favorable to Appellant

demonstrated that Appellant failed to establish his claim of direct evidence of

discrimination. Appellant argues that he established a case for discrimination through

direct evidence by Dan Williams’s statement about “old Rock-Tenn.” Our review of the

testimony shows Appellant did not establish a causal link between Dan Williams’s

comment about “old Rock-Tenn” and Appellant’s eventual termination from Rock-Tenn.

{¶73} Appellant’s third Assignment of Error is overruled.

{¶74} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Delaney, J.

Wise, P.J. and

Edwards, J. concur.

HON. PATRICIA A. DELANEY

HON. JOHN W. WISE

HON. JULIE A. EDWARDS Delaware County, Case No. 10CAE040030 18

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

EUGENE N. PETERS : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : ROCK-TENN CO., ET AL : : Defendants-Appellees : Case No. 10CAE040030

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed

to Appellant.

HON. PATRICIA A. DELANEY

HON. JOHN W. WISE

HON. JULIE A. EDWARDS