from the Franklin County Court of Common Pleas No. 14CV-2502
Offices of Russell A. Kelm, Russell A. Kelm, and Colleen
Koehler, for appellants.
Russell A. Kelm.
Miller, LLP, James E. Davidson, Catherine L. Strauss, for
1} Plaintiffs-appellants, Ann Roty and Mary Neff
(collectively, "Roty and Neff), appeal from a judgment
of the Franklin County Court of Common Pleas entered on April
5, 2016 granting a motion for summary judgment filed by
defendants-appellees, Battelle Memorial Institute, Jeffrey
Perko, Jane Cozzarelli, Jeffrey Caspers, Gwendolyn Von
Holten, Staci Palmer, and David Evans (collectively,
"Battelle"). Because we find that the trial court
erred in concluding that company-wide statistics showing the
ages of employees retained and terminated during a 2013
reduction in force were so irrelevant as to not even be
discoverable, we sustain Roty and Neff s first assignment of
error. Because the resolution of that assignment of error
will likely affect the summary judgment record, we find that
the remaining assignments of error (all of which pertain to
summary judgment) are rendered moot. We reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
2} On March 7, 2014, Roty and Neff filed suit
against Battelle and certain supervisor and management
employees of Battelle alleging age discrimination stemming
from both Roty's and Neff s terminations during a 2013
reduction in force at Battelle. (Mar. 7, 2014 Compl.) One of
the claims made in the complaint was that the reduction in
force was of disparate impact for workers over age 40, since
they were allegedly disproportionately represented in the
firings. Id. at ¶ 14. During the course of
discovery, Roty and Neff moved the trial court for an order
compelling Batelle "to produce discovery requested by
plaintiffs relating to the statistics of the ages and
positions of those included and not included in a reduction
in force conducted at Battelle in August and September of
2013." (June 12, 2014 Mot. to Compel at 1.) The trial
court referred all discovery disputes to a magistrate.
3} In December 2014, the trial court held an
evidentiary hearing in another pending case also involving
discrimination claims against Battelle in connection with its
same 2013 reduction in force. See Wasserstrom v. Battelle
Mem. Inst, Franklin C.P. No. 13CV-13871 (Aug. 14, 2015).
The trial court permitted the parties in both cases to
jointly present evidence in support of their respective
positions on the statistical data discovery question at issue
on this appeal.
4} In Roty's and Neff s case, in a decision
issued on February 23, 2015, the magistrate quoted from a
decision issued by the judge in the Wasserstrom
This matter came before the Court on December 4, 2014, for an
evidentiary hearing regarding the scope of discovery. The
Court has considered all of the evidence and arguments
presented by counsel.
The evidence presented indicates that each termination
decision was made at the business unit level. Accordingly, at
most, Plaintiff is entitled to the dates of birth and
position titles for each Human Resources employee included in
the August and September 2013 RIF in which Defendant Thomas
D. Snowberger was the principal decision maker. Defendants
submit that this information has already been produced.
Accordingly, Plaintiffs request for any further data is
(Feb. 23, 2015 Mag. Decision at 4, quoting Wasserstrom v.
Battelle Mem. Inst, Franklin C.P. No. 13CV-13871 (Jan.
28, 2015 Entry).) Relying upon the Wasserstrom
decision and the evidence adduced during the December 4, 2014
joint hearing, the magistrate concluded that the termination
decisions in this case were also made at the business unit
level. (Feb. 23, 2015 Mag. Decision at 4-5.) On that basis,
the magistrate found that Roty and Neff were only entitled to
discovery regarding the birthdates and position titles for
each employee included in the August and September 2013
reduction in force in their single business unit.
Id. at 5. The magistrate therefore denied Roty and
Neff s request to compel Battelle to provide statistics
reaching across all of Battelle's business units.
Id. Because the order only authorized discovery for
those "included" in the reduction in force, it
could have been understood two ways. First, it could have
authorized discovery for each person who fell within the
ambit of the reduction in force plan, regardless of whether
the person actually lost his or her job. Second, and more
restrictively, it could also have applied only to those who
were "included" in the reduction in force in the
sense that they were terminated as part of the reduction in
5} On March 9, 2015, Roty and Neff filed timely
objections to the magistrate's decision. (Mar. 9, 2015
Objs.) Roty and Neff argued that the case law supports the
need for statistical evidence of the nature they sought,
particularly for disparate impact claims. Id. at
4-10. Roty and Neff also pointed out that the
magistrate's "limitation of the production to just
one business unit [did] not take into account the fact that
the [reduction in force] decisions were reviewed and approved
by [human resources]." Id. at 1. In support of
their observation that reductions in force were reviewed by
human resources, the objections drew attention to the fact
that Battelle admitted as much in its responses to Neff s
interrogatories. Id. at 1-2, citing Battelle's
response to Neff s ninth ...