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Bellian, Appellant, v. Bicron Corporation, Appellee.
[Cite as Bellian v. Bicron Corp. (1994), Ohio St.3d .]
Discrimination -- Age discrimination claim premised on
violation described in R.C. Chapter 4112 must comply with
one-hundred-eighty-day statute of limitations period set
forth in former R.C. 4112.02(N).
Any age discrimination claim, premised on a violation described
in R.C. Chapter 4112, must comply with the one-hundred-
eighty-day statute of limitations period set forth in
former R.C. 4112.02(N).
(No. 93-354 -- Submitted February 23, 1994 -- Decided June
Appeal from the Court of Appeals for Geauga County, No.
Defendant-appellee, Bicron Corporation, was founded in
1969 by Richard Spurney, Jay Menefee, Harry Suscheck, and Lloyd
Hamner. Plaintiff-appellant, Joseph Bellian, was contacted by
Menefee and hired by him in 1972 as Vice-President of Marketing.
In 1976, Menefee became Chairman of the Board. Bicron
also had hired two new executives, Harold Murphy and Chris
Bartel, both as vice-presidents. Eventually, appellant became
part of a triumvirate presidency along with Murphy and Bartel,
and held the actual title of President.
By 1986, Spurney decided that a change was in order
because Bicron's bankers were concerned about a lack of
leadership at Bicron. Specifically, Spurney became concerned
about significant losses in the first half of the fiscal year
due to a lack of leadership, decision making and broad focus,
which he attributed to appellant's shortcomings.
Subsequently, Spurney demoted appellant to Vice-President
of Sales and Marketing. Spurney, who is one month older than
appellant, assumed the position of President. Additionally,
Bartel and Murphy, age forty and fifty respectively, were asked
to resign because of unsatisfactory job performances. Shortly
thereafter, one Eugene Conner, age fifty-five, was promoted to
the position of Treasurer Controller.
Later in 1987, Spurney determined that appellant had
failed to develop a strong marketing program, and demoted him
to the position of Vice-President of Sales. Appellant's salary
of $128,300 per year did not change. Philip Parkhurst, age
forty, whom appellant had originally hired, became the Director
of Marketing because he supposedly possessed the skills
necessary to attain Bicron's marketing goals. His salary was
Appellant stated in his deposition that he had no
objection to Bicron's directive that he should begin training a
replacement in order to make the company more attractive to
potential buyers. Specifically, he agreed that Bicron needed
to "train the young ones so they can take over when the old
ones retire." Pursuant to appellant's request, Spurney changed
appellant's title to Executive Vice-President of Sales.
Additionally, in April 1989, appellant received a ten percent
pay cut along with all exempted salaried personnel, with the
exception of recent hires.
In June 1989, Spurney reassigned appellant to Manager of
Electronic Products at a salary of $112,000 per year because
appellant's performance as Executive Vice-President of Sales
was supposedly unacceptable. In March 1990, Bicron was sold to
SGIC, Inc., a French corporation. Appellant stated in his
deposition that he received over $800,000 for his stock in
Bicron. He also received $70,000 as an incentive bonus.
Shortly thereafter, in light of Bicron's declining sales
and profitability, appellant's salary was reduced to $76,900 to
be more in line with the salaries of other product line
managers. In response to this decrease, appellant inquired
about a severance package. Spurney agreed to compensate
appellant with two weeks of salary for every year of
service--totaling approximately $81,000--if appellant wished to
retire. In the alternative, Spurney agreed to pay appellant
$81,000 per annum if appellant desired to remain with Bicron.
Appellant decided to stay on, and is still employed by Bicron
as Manager of Electronic Products.
Appellant filed suit against Bicron on February 4, 1991,
alleging age discrimination, breach of implied contract, and
promissory estoppel. Appellee's motion for summary judgment
was granted on May 5, 1992. The court of appeals affirmed the
trial court's decision.
This cause is now before this court upon an allowance of a
motion to certify the record.
Thrasher, Dinsmore & Dolan, Lawrence J. Dolan and Paul T.
Murphy, for appellant.
Spieth, Bell, McCurdy & Newell Co., L.P.A., Nancy A. Shaw,
Bruce G. Hearey and Debra L. Kackley; Petersen, Ibold & Wantz
and Jerry Petersen, for appellee.
Louis A. Jacobs; Spater, Gittes, Schulte & Kolman and
Frederick M. Gittes, urging reversal for amicus curiae, Ohio
Employment Lawyers Association.
Francis E. Sweeney, Sr., J. The issue before this court
is whether the trial court properly granted summary judgment in
favor of appellee on the grounds that: (1) appellant's claim
is barred because he did not file his age discrimination claim
within the one-hundred-eighty-day statute of limitations period
set forth in R.C. 4112.02(N), and (2) no genuine issue of
material fact exists to prevent summary judgment on appellant's
claim. For the following reasons, we find that summary
judgment was proper on both grounds and accordingly affirm the
judgment of the court of appeals.
Initially, we address the finding that appellant's age
discrimination claim was barred because he did not file the
claim within the one-hundred-eighty-day statute of limitations
period set forth in R.C. 4112.02(N). We agree.
Appellant states that his cause of action for age
discrimination was brought under R.C. Chapter 4112 and
specifically pursuant to R.C. 4112.99. He failed, however, to
file his claim within the one-hundred-eighty-day statute of
limitations period set forth in R.C. 4112.02(N). Appellant
argues that he need not comply with the express limitations
period prescribed by R.C. 4112.02(N) as his claim was brought
under the more general discrimination provision of R.C. 4112.99
which does not contain a limitations period. Consequently,
appellant insists that the six-year statute of limitations set
forth in R.C. 2305.07 must be applied to claims filed under
R.C. 4112.99. Thus, since his claim was filed within six years
of the last alleged discriminatory act, appellant alleges his
claim is not barred.
In Elek v. Huntington Natl. Bank (1991), 60 Ohio St.3d
135, 136, 573 N.E.2d 1056, 1057, we stated that R.C. 4112.99
creates an independent civil action to remedy any form of
discrimination identified in R.C. Chapter 4112. This court
also recognized that there may be instances where R.C. 4112.99
would conflict with other more specific provisions of R.C.
Chapter 4112. In those instances, we stated, "existing rules
of statutory construction are available to address" the
conflicts. Id. at 137, 537 N.E.2d at 1058.
Applying the rule of statutory construction, R.C. 1.51, to
conflicts between general and specific statutes, we have held
that where there is no manifest legislative intent that the
general provision prevail over the specific provision, the
specific provision applies. State v. Chippendale (1990), 52
Ohio St.3d 118, 556 N.E.2d 1134. Here, R.C. 4112.99 is the
more general statute. Consequently, R.C. 4112.99 prevails over
R.C. 4112.02(N) only if there is a clear manifestation of
legislative intent. Since the General Assembly has not shown
such an intent, the specific provision, R.C. 4112.02(N), must
be the only provision applied. Moreover, appellant alleged in
Count I of his complaint that the "[d]efendant and its agents
have violated the provisions of Chapter 4112 of the Ohio
Revised Code." The only provision in R.C. Chapter 4112 that
recognizes discrimination on the basis of age is R.C. 4112.02.
Thus, regardless of whether appellant stated reliance on R.C.
4112.02 or 4112.99, he had to be referring to the form of
age-based employment discrimination identified by R.C. 4112.02.
Former R.C. 4112.02(N) provided that "[a]n aggrieved
individual may enforce his rights relative to discrimination on
the basis of age as provided for in this section by instituting
a civil action, within one hundred eighty days after the
alleged unlawful practice occurred * * *."1 (Emphasis added.)
This language makes it clear that any age-based employment
discrimination claim, premised on a violation described in R.C.
Chapter 4112, must comply with the one-hundred-eighty-day
statute of limitations period set forth in R.C. 4112.02(N).
Based on the above, we conclude that any age
discrimination claim, premised on a violation described in R.C.
Chapter 4112, must comply with the one-hundred-eighty-day
statute of limitations period set forth in former R.C.
4112.02(N). Thus, appellant's claim was barred because he did
not file his cause of action within the one-hundred-eighty-day
We next address the finding that summary judgment in favor
of appellee was proper because appellant has not raised a
genuine issue of material fact to support his age
discrimination claim. We agree.
Summary judgment may be properly granted where (1) no
genuine issue as to any material fact exists; (2) the moving
party is entitled to judgment as a matter of law; (3) it
appears from the evidence that reasonable minds can come to but
one conclusion; and (4) viewing such evidence most strongly in
favor of the party against whom the motion for summary judgment
is made, that conclusion is adverse to that party. Temple v.
Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466,
472, 364 N.E.2d 267, 274.
To establish a prima facie case of age discrimination, a
plaintiff must demonstrate: (1) that he or she was a member of
the statutorily protected class; (2) that he or she was
discharged; (3) that he or she was qualified for the position;
and (4) that he or she was replaced by, or his or her discharge
permitted the retention of, a person not belonging to the
protected class. Kohmescher v. Kroger Co. (1991), 61 Ohio
St.3d 501, 575 N.E.2d 439, syllabus. The ultimate question is
whether the defendant intentionally discriminated against
plaintiff because of his age. See id. at 404-405, 575 N.E.2d
In the present case, appellant failed to establish a prima
facie case of age discrimination. According to the record
below, appellant was not discharged. He was retained by the
company and receives many benefits, including a pension plan, a
401K plan, a gas credit card, and country club membership.
Thus, this is not a constructive discharge situation, as
appellant could not reasonably feel compelled to resign. See
Henry v. Lennox Industries, Inc. (C.A.6, 1985), 768 F.2d 746.
In addition, there is significant evidence that appellant was
not performing well at his various positions. Thus, appellee
had legitimate, nondiscriminatory business reasons for its
actions. Moreover, appellant was not replaced by anyone
outside the statutorily protected age group, which is "forty or
older." See R.C. 4101.17(A). Appellant was replaced by
Parkhurst, who had already turned age forty at the time. As to
appellant's claim of breach of implied contract, his assignment
as president was in name only and he admitted there was no
express or implied contract that it would be a permanent
position. Also, his claim of promissory estoppel fails as
appellant has proven no promise of job security.
In conclusion, we find that summary judgment in favor of
appellee was proper because appellant failed to timely file his
age discrimination claim and, additionally, failed to raise a
genuine issue of material fact to prevent summary judgment.
Accordingly, we affirm the judgment of the court of appeals.
Moyer, C.J., A.W. Sweeney, Wright and Resnick, JJ., concur.
Douglas and Pfeifer, JJ., dissent.
1. Former R.C. 4112.02(N) was amended on June 30, 1992 to add
the word "discriminatory" after "unlawful."
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