Opinion
CASE NO. 1:06CV00035.
October 3, 2007
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon the separate motions of Defendants Marsh USA, Inc. and Charles Becker for summary judgment. (Docket Nos. 29 and 31, respectively.) Plaintiff Novella Lockett has filed a memorandum in opposition to each motion (Docket Nos. 34 and 35), and Defendants have filed their respective replies (Docket Nos. 48 and 49). For the reasons that follow, the motions of Defendants for summary judgment are GRANTED.
Lockett has asserted eleven causes of action against Marsh and Becker together (although she later concedes that Cause of Action VII does not apply to Becker). Lockett also relies upon much of the same evidence in pursuing her claims against them. Thus, the Court will address Marsh and Becker collectively as "Defendants," and only will differentiate between the two when necessary for clarity in the analysis.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff Novella Lockett ("Lockett") is an African-American female born on March 2, 1953. (Lockett Dep., Docket No. 45, 24.) She was hired at Johnson Higgins ("J H") in March 1975 as an accounting clerk. ( Id. at 153.) Lockett earned multiple promotions throughout her time with J H, and had attained the title Chief Administrative Officer in 1997, when Marsh USA, Inc. ("Marsh") acquired J H. ( Id. at 161-165.) In 1999, her job responsibilities continued to include elements of human resources, technology, finance, and management services organization. ( Id. at 169-70.) Marsh's structure throughout its other regions did not contain a "Chief Administrative Officer" position. (Corsetti Dep., Docket No. 40, 380-81; Locket Dep, Docket No. 45, 380-81.) Beginning in October 1999 and continuing through January 2003, Lockett became known as the Regional Human Resources Manager, even though Jim Meathe ("Meathe"), the manager for whom she consistently worked, and some Marsh documents still referred to her as the Chief Administrative Officer. ( Id. at 174-75, 183-84, Ex. P; Meathe Dep. p. 41.) Regardless of her title, her responsibilities remained spread through finance, information technology and management services organization. (Lockett at 175.)
Defendant Charles Becker, who was the Cleveland office Branch Manager, also reported to Meathe until 2002. (Becker Dep., Docket No. 36, 34.) Becker was not Lockett's superior, nor did she report to him. Id. at 22; Lockett Dep., Docket No. 45, Ex. P and U.)
In 2001, Marsh's Great Lakes and East Central Regions merged to create a Midwest Region. (Lockett Dep., Docket No. 45, 213-14.) This brought more responsibility for Lockett. ( Id.) In May 2001, Marsh hired Christopher Long ("Long") as the Regional Human Resources Manager in Chicago. Long had a Masters Degree in Labor and Industrial Relations and at least 12 years of human resources experience. ( Id. at 230.) Lockett, who was based in Cleveland, continued her varying duties, including human resources. (Locket Dep., Docket No. 45, 236-37, Ex. T.)
In November 2002, Meathe left Marsh and Arlene Corsetti became the Regional Leader for the Midwest Region. (Meathe Dep. I, 127-28; Lockett Dep., Docket No. 45, 356.) Corsetti assessed the region and did not understand Lockett's multi-duty responsibilities because Corsetti had no experience with a Chief Administrative Officer-type function, and Marsh did not have a chief administrative officer role in its organizational structure. (Corsetti Dep., Docket No. 40, 32-33, 36-38, 380-81.) Corsetti had previously worked with Long in Chicago, and saw Long as the Midwest Region HR manager. (Corsetti Dep., Docket No. 40, 14-16, 51-52.) Therefore, she decided to move Lockett to Office Administrator in Cleveland. ( Id. at 46-47.) Prior to informing Lockett of the reassignment, Corsetti asked Becker his opinion and he responded with approval, proclaiming, "That would be great. The people in Cleveland like her." (Becker Dep., Docket No. 36, 312.) In her Office Administrator position, Lockett had two financial analysts who reported to her, Jeff Miles ("Miles") and Sheryl Evans ("Evans"). ( Id. at 118.) While Lockett received no cut in salary, her responsibilities were reduced in the new position. ( Id. at 347.)
Lockett contacted Barbara Silvan, Managing Director of Employee Relations, about her confusion concerning her reassignment. ( Id. at 402-403.) Silvan investigated Lockett's concerns and found no evidence of unfair treatment. She determined, however, that the Company could have done a better job of communicating to Lockett the responsibilities assumed by Long when he was hired in 2001. ( Id. at 415-17; Ex. CC.) Thereafter, on December 29, 2003, Lockett filed a charge of discrimination with the Ohio Civil Rights Commission ("OCRC") and Equal Employment Opportunity Commission ("EEOC") claiming she was demoted because of her race. ( Id. at Ex. EE.) The EEOC issued a right to sue letter on April 13, 2004, after finding it was unable to conclude that the evidence established a violation of the relevant statutes. (Lockett Dep., Docket No. 45, Ex. HH.)
Approximately six months later, in October 2004, the New York Attorney General filed a civil complaint against Marsh which ultimately resulted in a settlement causing the company to pay approximately $850,000,000. Several Marsh executives, including Corsetti, resigned, and approximately 3,000 Marsh employees lost their jobs in the resulting cost-saving reduction in force ("RIF"). (Tatum Dep., Docket No. 40, 87-92, 186-86; Corsetti Dep., Docket No. 41, 71-72; Ahmed Dec. at ¶ 3.) Lockett was among those terminated as part of the RIF on November 19, 2004. (Tatum Dep., Docket No. 40, 99-101.) Evans, a 49-year-old white female, and Miles, a 46-year-old white male, Lockett's two subordinates who performed financial support functions in Cleveland with her, were also terminated in the RIF. (Tatum Dep, 99-101; Locket Dep. 537, 570.) No employees were hired to replace Lockett, Miles and Evans, and no financial management services organization support functions were performed in Cleveland after the RIF. (Lockett Dep., Docket No. 45, 570; Tatum Dep., Docket No. 40, 105; Ahmed Dec. at ¶ 5.)
Lockett then filed a second charge with the OCRC alleging race discrimination and retaliation in her termination. (Lockett Dep. Docket No. 45, 573-76; Ex MM.) The EEOC again disagreed with Lockett's allegations, finding that the evidence did not show Marsh retaliated against her or discriminated against her on account of her race. (Lockett Dep., Docket No. 45, Ex. NN.) A right to sue letter was issued, and Lockett then filed this lawsuit against Marsh and Becker, claiming (1) wrongful demotion on the basis of age, race and gender; (2) wrongful discharge on the basis of age, race and gender; (3) retaliatory demotion; (4) retaliatory discharge; (5) wrongful discharge in violation of Ohio public policy, and (6) intentional infliction of emotional distress. (Complaint, Docket No. 1, Attach. 1.)
II. LAW AND ANALYSIS
A. Subject Matter Jurisdiction
As an initial matter, this Court must address the issue of subject matter jurisdiction. Defendants removed this case from the Cuyahaga County Court of Common Pleas asserting federal question jurisdiction. After the Court sua sponte ordered the parties to brief the issue of the Court's subject matter jurisdiction, the Court is now sufficiently convinced that it has subject matter jurisdiction over Cause of Action VII as set forth in Lockett's complaint as an issue of federal law, and supplemental jurisdiction over her remaining claims. See 28 U.S.C. § 1367.
Lockett's seventh cause of action alleges that she was the subject of discrimination violative of Ohio law when Marsh offered her a lesser ERISA-governed severance package than other similarly situated individuals. (Complaint, Docket No. 1, 11.) Lockett claims that she was "entitled to receive such severance pay." ( Id.) Under the well-pleaded complaint rule, "a federal question must appear on the face of the complaint [for removal to be proper] and . . . the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court." Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-99 (1987). One exception to this rule, however, applies when Congress so completely preempts a field of law that a cause of action becomes one of federal law, regardless of whether it explicitly mentions federal law. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987). ERISA is one area of law wherein "complete preemption," as opposed to the more commonly occurring "conflict preemption," sometimes occurs.
ERISA governs "employee welfare benefit plan[s]." 29 U.S.C. 1002(1). An "employee welfare benefit plan" includes a severance package subject to an ongoing administrative scheme, such as the one Marsh offered to Lockett. See Shahid v. Ford Motor Co., 76 F.3d. 1404, 1409 (6th Cir. 1996); 29 C.F.R. § 2510.3-1(a)(3); Marsh Inc. Fall 2004 Restructuring Severance Pay Plan, Docket No. 1, Ex. B.
Conflict preemption, established by 29 U.S.C. § 1144, allows ERISA to preempt state laws when they "relate to" matters governed by ERISA. Without more, however, this does not create a federal cause of action which would then allow a defendant to remove a complaint otherwise grounded in state law to federal court. Warner v. Ford Motor Co., 46 F.3d 531, 534 (6th Cir. 1995). Complete preemption, in contrast, allows defendants to remove such a complaint. Id. In such cases, federal jurisdiction arises under 29 U.S.C. § 1132(a)(1)(b) for claims "by a participant or beneficiary [in an ERISA plan] to recover benefits due him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan."
The Sixth Circuit has previously rejected complete preemption jurisdiction where a plaintiff's references to an ERISA plan were only for purposes of determining "specific, ascertainable damages" suffered as a result of a discriminatory termination. See Wright v. Gen. Motors Corp., 262 F.3d. 610, 615 (6th Cir. 2001) (where the court specifically noted that Wright's lawsuit was not "claiming wrongful withholding of ERISA covered plan benefits," but was "a lawsuit claiming race and sex discrimination and retailiation resulting in damages, one component of which is a sum owed under the provision of the GM plan") Id.
Further, in Warner, supra, the Sixth Circuit found that a complaint was not completely preempted by 29 U.S.C. § 1132(a)(1)(B) where the plaintiff claimed age discrimination forced him to accept an early retirement agreement. 46 F.3d. at 532. The Court explained that the action was "a straight age discrimination case which has no counterpart or superseding cause of action in ERISA; rather "[i]t is an action to set aside and escape from the early retirement agreement, not to recover under it or to `enforce' it or to assert `rights to future benefits under the terms of the plan.'" Id. at 534.
In contrast, the Sixth Circuit has found jurisdiction where a plaintiff has admitted during his deposition that he was seeking to recover the benefits due him under an ERISA plan. Peters v. Lincoln Elec. Co., 285 F.3d 456, 468 (6th Cir. 2002). In Peters, the court found that the plaintiff's claim for breach of contract was that "he should be a participant in the plan but the company denied him participation." Id. Because evaluation of the claim would require the district court to examine the ERISA plan and determine whether the plaintiff was actually entitled to such benefits, Peters was seeking "to recover benefits due him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." Id. at 469.
In the case at hand, as in Peters, the Court must examine the ERISA-governed severance package to evaluate the merits of Lockett's claim that she is entitled to certain benefits due her under the terms of her plan. In addition, during her deposition, Lockett confirmed that, in order to evaluate her claim, the Court must examine the ERISA plan. (Lockett Dep. 565-569, 598-600.) Ultimately, this cause of action depends in large part on whether Lockett was actually entitled to certain benefits under the severance package, as Lockett seeks to recover the benefits Lockett claims she was improperly denied. Thus, it is an action "by a participant or beneficiary [in an ERISA plan] to recover benefits due [her] under the terms of [her] plan" and "to enforce [her] rights under the terms of the plan." 29 U.S.C. § 1132(a)(1)(b). It is therefore completely preempted by § 1132(a)(1)(b) and removable despite it being plead under state law. See Warner, 46 F.3d at 534. Accordingly, this Court has federal question jurisdiction over Cause of Action VII, and supplemental jurisdiction over all the other causes of action, as they arise from Lockett's demotion and termination, a common nucleus of operative fact. See 28 U.S.C. § 1367.
B. Standard of Review
This Court's consideration of the motion for summary judgment is governed by Rule 56(c) of the Federal Rules of Civil Procedure:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.Id. The party opposing a motion for summary judgment made according to Rule 56 "may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
The entry of summary judgment is not a disfavored procedural shortcut, but instead is mandated by "the plain language of Rule 56(c) . . . after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party's burden "may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325. The party opposing a motion for summary judgment may do so with "any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Id. at 324. The nonmoving party's showing must be of more than a "metaphysical doubt as to the material facts," Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); rather, the nonmoving party "must present significant probative evidence in support of its complaint to defeat the motion for summary judgment." Moore v. Philip Morris Co., 8 F.3d 335, 339-40 (6th Cir. 1993). In addition, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex, 477 U.S. at 322.
In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970); White v. Turfway Park Racing Ass'n, 909 F.2d 941, 943-44 (6th Cir. 1990). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252. Moreover, the non-movant must show more than a scintilla of evidence to overcome summary judgment. Id.
The moving party bears the initial burden of proof under Fed.R.Civ.P. 56(c). If the Court finds that the moving party has satisfied this burden, however, the non-movant is obligated to "produce evidence that results in a conflict of material fact to be resolved by a jury." Cox v. Kentucky DOT, 53 F.3d 146, 149 (6th Cir. 1995). A Plaintiff is thus not permitted to rest upon the allegations in the complaint. Rather, Plaintiff will have to produce affirmative evidence in support of each and every element of each claim. Id. at 150. In light of this standard, the Court considers Defendants' dispositive motions.
C. Discrimination Claims
The Ohio Revised Code states
It shall be an unlawful discriminatory practice:
(A) For any employer, because of the race, color, religion, sex, national origin, disability, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.
The Ohio Supreme Court recognized in Plumbers Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Commission, 66 Ohio St. 2d 192, 197 (1981), that McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), sets forth the formula courts should rely upon in evaluating claims of discrimination under Ohio Rev. Code § 4112.02. See Detzel v. Wellman, 141 Ohio App. 3d 474 (Ohio Ct.App., Ottawa County 2001). The burden of proof established in McDonnell Douglas, and later clarified by Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981), is divided into three stages.
At the first stage, the plaintiff must prove a prima facie case of discrimination. Burdine, 450 U.S. at 252-53. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for the adverse employment action. Id., quoting McDonnell Douglas, 411 U.S. at 804. See Plumbers, 66 Ohio St. 2d at 197. If defendant meets this burden, the final stage requires the plaintiff to prove that the proffered reason was merely a pretext for unlawful discrimination. Burdine, 450 U.S. at 253, citing McDonnell Douglas, 411 U.S. at 804. Pretext is established by a direct showing that "a discriminatory reason more likely motivated the employer or by an indirect showing that the employer's explanation is not credible." Burdine, 450 U.S. at 256. See Kline v. TVA, 128 F.3d 337, 342-43 (6th Cir. 1997).
A prima facie case of wrongful termination/demotion requires a plaintiff to demonstrate (1) that she is a member of the protected class; (2) that she was subjected to an adverse employment action; (3) that she was qualified; and (4) that she was treated differently than or replaced by similarly situated employees who were not members of the protected class. McClain v. North West Cmty. Corr. Ctr. Judicial Corr. Bd., 440 F.3d 320 (6th Cir. 2006).
If a plaintiff suffers an adverse employment action due to a reduction in force and thus cannot meet the fourth prong of the prima facie case, she must instead provide "direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons." Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir.), cert. denied, 498 U.S. 878, 112 L. Ed. 2d 171, 111 S. Ct. 211 (1990). See also Ridenour v. Lawson Co., 791 F.2d 52, 57 (6th Cir. 1986) (a plaintiff "terminated amidst a corporate reorganization carries a greater burden of supporting charges of discrimination"); Skalka v. Fernald Envtl. Restoration Mgmt. Corp., 178 F.3d 414, 420 (6th Cir. 1999); Scott v. Goodyear Tire Rubber Co., 160 F.3d 1121, 1126 (6th Cir. 1998). Under Ohio law, "[d]irect evidence is found . . . where a statement by an employer directly shows there is a discriminatory motive" in the adverse employment decision. Coburn v. Rockwell Automation, Inc., No. 06-3663, 2007 U.S. App. LEXIS 16632 (6th Cir. 2007) (citing Olive v. Columbia/HCA Healthcare Corp., Nos. 75249 76349, 2000 Ohio App. LEXIS 914, at *2 (Ohio Ct.App., Cuyahoga County, Mar. 9, 2000)).
1. Discriminatory Demotion Claim
With respect to the wrongful demotion claim, Defendants do not argue the first and third prongs of the prima facie case, that Lockett was an African-American woman over 40 years old at the time of her demotion and termination and that she was qualified for her job. Regarding the second prong, however, Defendants offer two arguments as to why Lockett has failed to establish this prong.
Defendants first argue that Lockett's reassignment was not an adverse employment action. An adverse employment action is "a materially adverse change in the terms and conditions of employment." Hollins v. Atlantic Co., 188 F.3d 652 (6th Cir. 1999) (examples of adverse employment action not only include a decrease in wage or salary, but also a "less distinguished title" or "significantly diminished material responsibilities"). Here, Lockett was reassigned from either Chief Administrative Officer or Regional Human Resources Manager (depending upon who in the company was describing her position) to Office Administrator. Her responsibilities were reduced and she no longer performed any human resources duties. Her potential to earn bonuses was also limited. Thus, Lockett suffered an "adverse employment action."
Defendants next argue that Lockett was not replaced after her demotion, so she must meet the heightened reduction in force standard for her wrongful demotion prima facie case. The Court agrees with Defendant's argument.
An employee is not "replaced" when another employee is assigned to perform the terminated employee's duties in addition to other duties, or when the terminated employee's work is redistributed. Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1980). Long, who was already a Marsh employee for two years in 2003 when Lockett's reassignment occurred, did not "replace" Lockett when she was reassigned to the Office Administrator position. Rather, Long merely assumed many of Lockett's prior duties while continuing to perform his own. See Spencer v. Hilti, 1997 U.S. App. LEXIS 16365, at *13 (6th Cir. June 27, 1997) (in finding that the plaintiff had not been replaced because her job duties were assumed by existing employees, the Court noted that Barnes drew a clear distinction between "the replacement of an employee and situations where there was a consolidation of jobs designed to eliminate excess work capacity"); Rush v. United Technologies, 930 F.2d 453, 457 (6th Cir. 1991) (employee was not replaced where "his duties were taken over by another person already in the employ of [defendant]").
Where a plaintiff cannot show she was replaced, however, she can still establish her prima facie case by alternatively providing "direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons." Barnes, 896 F.2d at 1465; see also Ridenour v. Lawson Co., 791 F.2d 52, 57 (6th Cir. 1986) (a plaintiff "terminated amidst a corporate reorganization carries a greater burden of supporting charges of discrimination"). As described below, however, Lockett fails to produce sufficient evidence as to this alternative prong as well.
Because Lockett relies upon the same legally insufficient evidence for meeting the fourth prong of the prima facie case and for establishing pretext, the Court will proceed through the McDonnell Douglas analysis before analyzing Lockett's cited evidence.
Even if Lockett were able to establish a prima facie case, though, her claim still fails. Defendants sustain their burden under the McDonnell analysis by producing a legitimate business reason for the demotion, which places the burden back on Lockett to show pretext. McDonnell, 411 U.S. at 804.
Defendants argue that Lockett's demotion was a result of Corsetti's decision to align the newly created region's structure with Marsh's other regions. Despite her title of Regional Human Resources Manager, Lockett was still participating in aspects of finance, technology, and management services organization. When Meathe left Marsh and Corsetti became head of the Midwest Region, Corsetti was not comfortable with Lockett's unique role. She therefore decided to eliminate Lockett's multi-faceted position in Cleveland and vest Lockett's human resources duties in Long, who was based in Chicago. This realignment made the Midwest Region's structure consistent with the other Marsh regions.
Corsetti had previously worked with Long and felt comfortable with him. Additionally, Long, unlike Lockett, had a Masters degree to complement his human resources experience.
In a similar vein, Corsetti also removed regional responsibilities from Kevin Youngs and Tom Sewell, both white males, when she assumed her new position because their duties under Cleveland office leader Meathe had not comported with Marsh's organizational structure. (Corsetti Dep. 57-59.)
Thus, because Defendants have provided a legitimate reason for the adverse action, Lockett must show pretext. To raise a genuine issue of material fact as to the validity of Defendants' explanation for an adverse employment action, Lockett must show by a preponderance of the evidence either: "(1) that the proffered reasons had no basis in fact; (2) that the proffered reasons did not actually motivate [her] discharge; or (3) that they were insufficient to motivate discharge." Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994).
The first type of showing consists of evidence that the proffered basis for the adverse action is factually false. Id. The second, which is most applicable here, occurs when the plaintiff attempts to show circumstances which tend to prove that it is more likely than not that the employer's explanation is a pretext, or cover-up. Id. The third type of showing ordinarily consists of evidence that other employees, particularly those not in the protected class, were not subject to the adverse event even though they engaged in substantially identical conduct to that which the employer claims motivated the adverse action against plaintiff. Id.
In response to Defendants' evidence of legitimate reasons for Lockett's demotion and termination, Lockett fails to show a genuine issue of material fact that legitimate business reasons did not actually motivate her demotion. Instead, she only offers inconsequential "stray remarks." "To be probative of discrimination, isolated comments must be contemporaneous with the discharge or causally related to the discharge decision making process." Wohler v. Toledo Stamping Manufacturing, Case No. 96-4187, 1997 U.S. App. LEXIS 27183, at *13 (6th Cir. Sept. 30, 1997). "Stray remarks," particularly those made years prior to the decision in question, do not aid plaintiff. See Id. (statement made two years prior to discharge "greatly diminishes its probative value" for summary judgment purposes); Phelps v. Yale Sec., 986 F.2d 1020, 1026 (6th Cir. 1993) (comment made one year before discharge is too far removed in time to be indicative of discriminatory intent in the adverse action decision); Boyle v. Mannesmann Demag. Corp., Case No. 91-3909, 1993 U.S. App. LEXIS 8682, at *7 (6th Cir. Apr. 13, 1993) (holding that statement by person who took part in termination decision four years prior to the decision was stray remark, and thus not indicative of illegal employment discrimination).
Lockett attempts to raise a genuine issue of material fact by citing numerous comments made by fellow Marsh employees, although notably none by Arlene Corsetti, who testified that she was responsible for the demotion decision. Ed Fisher, managing director of Marsh's Columbus office from 1997-2002, testified that Becker made sexist and racist jokes at dinners from 1992 to 2002, and that Becker had called Lockett a "token black" sometime before 1996. Becker's alleged comments and jokes all took place years prior to Lockett's demotion and termination. The jokes also are not causally related to the discharge decision, as they did not involve Lockett or a desire to affect her employment. Kahl v. Mueller, No. 98-1176, 1999 U.S. App. LEXIS 6294, at *13 (6th Cir. Apr. 1, 1999) (stray remarks are "insufficient to give rise to an inference of discrimination as they are topically and temporally distant from [the] termination"). The "token black" comment was made at least seven years prior to her demotion and eight years prior to her termination. The Court finds it to be an inconsequential "stray remark" of little, if any, probative value of Lockett's claim of wrongful demotion. See Boyle, 1993 U.S. App. LEXIS at *7; Byrnes v. LCI Communication Holdings, 77 Ohio St. 3d 125, 130 (Ohio 1996) ("There must be a causal link or nexus between the discriminatory statement or conduct and the prohibited act of discrimination to establish a violation of [Chapter 4112]."). Moreover, even accepting Lockett's characterization, Becker's role in Lockett's reassignment was rather limited. (Pl.'s Resp. and Brief in Opp. to Def. Charles Becker's Mot. for Summ. J., Docket No. 35, 5-6.) Becker merely offered his approval of Lockett's reassignment after Corsetti made the decision, and, when informed of the decision, Becker actually complimented Lockett by saying that she was liked in the Cleveland office. (Corsetti Dep., Docket No. 40, 53-54; Becker Dep., Docket No. 36, 312.) This very limited role further diminishes the probative value of already irrelevant stray remarks.
In addition, Jeffrey Miles testified that in an executive committee meeting sometime in 2003 in response to a woman crying, Becker declared, "If it was a man this wouldn't be happening, or he wouldn't be crying." (Miles Dep., Docket No. 38, 202-204.) This comment is another stray remark unrelated temporally or topically to Lockett or her demotion or termination. See Kahl, 1999 U.S. App. LEXIS 6294, at *13.
Lockett also cites evidence that Long told Silvan that Meathe considered Lockett a "token" and "held her up" because "he just wanted to show diversity." (Silvan Dep., Docket No. 37, 112; Ex. 16.) This alleged comment does not create an inference of discriminatory animus in Lockett's demotion or termination, as Meathe's view of Lockett is not at all probative of the decision making process at issue. Meathe had continually promoted Lockett for years and had already left Marsh by the time Lockett was demoted. Furthermore, Lockett does not contend that Long was involved in the decision to demote her.
Likewise, Maria Foxhall's testimony concerning alleged statements made by an unknown person at an unknown time that she and others at Marsh were "tokens," fails to create an inference of discriminatory intent in the demotion and firing of Lockett. See Schrand v. Fed. Pac. Elec. Co., 851 F.2d 152, 156 (6th Cir. 1988) ("me too" evidence irrelevant); Byrnes, 77 Ohio St. 3d at 130 ("The mere fact that an employer may have discriminated against other employees, standing alone, is insufficient. The issue is whether this employee was discharged because of [her protected class].").
Lockett also produces evidence that Becker sought to exclude her from the executive committee, but mischaracterizes that evidence. Lockett's proffered testimony of Ed Fisher regarding Becker's comments indicates that Becker sought to keep Lockett off the executive committee because Becker disliked her approach to human resources, not that he disliked her race, gender, or age. Fisher testified that Becker felt that Lockett was "too politically correct" and "overly conservative," calling her the "church lady," and that Becker believed that if she were promoted to the Executive Committee, committee members could not speak freely or take adverse action against an employee of color if that employee's conduct warranted such action. (Fisher Dep., Docket No. 39, 26-31.) This evidence fails to show pretext, as Becker merely expressed his opinion about a difference in philosophy or approach, which is different than exhibiting a discriminatory animus. One can express belief that a person's views will hinder the working environment without exercising discriminatory animus. See Grutter v. Bollinger, 539 U.S. 306, 320, 333 (2003) (cautioning that there is no one "minority viewpoint," thus distinguishing between a person's race and her viewpoint).
The Court, therefore, finds that Lockett has not shown a genuine issue of material fact as to whether Corsetti's desire to realign the Midwest region consistent with all other regions was a mere pretext for discrimination. See Norbuta v. Loctite Corp., 1 F. App'x 305, 314-15 (6th Cir. 2001) ("It is not the prerogative of the courts to engage in the post-hoc management of the employer's internal affairs by second-guessing how personnel could have been more equitably allotted, or cost-savings better realized. . . . [Plaintiff] must provide evidence not that [Defendant] could have made a business decision that others might think more fair, but that [Defendant] made the decision to [demote or terminate] him because of his membership in a protected class."). Construing the evidence in a light most favorable to Lockett, there is no genuine issue of material fact that the Defendant's legitimate business reason in the reassignment was a pretext for illegally discriminating against her.
2. Discriminatory Termination Claim
Just as Lockett cannot demonstrate a genuine issue of material fact with respect to her wrongful demotion claims, she cannot meet the heightened burden to which her wrongful termination claims are subject. Because she admittedly was not replaced, to sustain a prima facie case, Lockett must provide "direct, circumstantial, or statistical evidence tending to indicate that Marsh singled her out for discharge for impermissible reasons." Barnes, 896 F.2d at 1465. As discussed in detail above, Lockett's evidence, viewed in the light most favorable to her, consists of stray remarks, which do not indicate that Marsh singled her out for discrimination. Additionally, little can be adduced from the note allegedly written by Long stating "she thinks she has a terrific case and she would use our offer to prove discrimination," and "lets [sic] go down the performance route." (Silvan Dep., Docket No. 37, Ex. 16.) While vague, the note appears to address whether Marsh will offer Lockett a settlement or defend itself against her charge of a discriminatory demotion with the OCRC. It merely acknowledges the filing of the EEOC charge and discusses strategy for responding. It was written nearly a year prior to the termination and simply does not create an inference that Marsh sought to single out Lockett based on her race, gender, or age for demotion and/or termination. See Barnes, 896 F.2d at 1465; Boggs v. Scotts Co., 2005 Ohio 1264, at *P25 (Ohio App., Franklin County, March 22, 2005) (upholding summary judgment and finding that evidence of defendant's human resources representative asked management's advice on what to do with "the one we got the letter from," that management sought to move plaintiff to a new business group, and that "political as well as legal ramifications" kept defendant from rehiring plaintiff all failed to support inference of discriminatory or retaliatory intent).
Even if the remarks did meet the requirements to establish the prima facie case, Lockett still cannot prove pretext. Defendants have provided a legitimate reason for her termination — that the entire financial unit in Cleveland was eliminated and that Lockett was one of three Marsh employees (along with a white male and a white female) terminated in the RIF that ultimately caused thousands of Marsh employees to lose their jobs (including Long, whom Lockett claims was the beneficiary of Marsh's discriminatory conduct). (Ahmed Dec. ¶ 4.) Midwest Regional Advisor Joe Tatum knew that Cleveland would not be a financial center in the new zone structure Marsh was adopting, so the financial jobs were prime candidates for the cost-eliminating RIF. (Tatum Dep., Docket No. 41, 94-95.)
Lockett attempts to show pretext by again citing comments allegedly made by Becker, but Becker merely declined to object when Tatum informed him that Tatum had decided to terminate Lockett as part of the RIF. (Tatum Dep. Docket No. 41, 94-95.) As with Lockett's reassignment, Becker's passive and limited role in her termination further reduces the probative value of already irrelevant stray remarks. Lockett has thus provided no evidence that Marsh, through Tatum, discriminated against her, nor any legally sufficient evidence to rebut this legitimate business reason and allow a jury to find that it is more likely than not that Marsh sought to illegally discriminate against her. See Manzer, 29 F.3d at 1084.
Ultimately, Lockett has failed to show that the legitimate reasons offered for her termination were mere pretexts for discriminatory conduct. Lockett was terminated as part of a RIF that eliminated the jobs of not only the two other employees in her unit but thousands of other Marsh workers. Construing the evidence in a light most favorable to Lockett, there is no genuine issue of material fact that Defendants' legitimate business reason relating to the RIF was a pretext for illegally discriminating against her.
Although Defendants claim that Lockett's age discrimination claims are time-barred, this Court need not reach this argument because the age discrimination claims fail substantively.
D. Retaliation Claims
1. Retaliatory Demotion Claim
Defendants are entitled to summary judgment on Lockett's retaliatory demotion claim as well. Lockett alleges she was unlawfully demoted and terminated in retaliation for drafting a memorandum addressing the performance of her colleague, Sara Sirotsky, who was a Marsh Client Executive.
In March 2002, Sirotzky met with Corsetti, who was at that time responsible for Chicago office operations. (Corsetti Dep., Docket No 40, 17-20; Ex. D.) Corsetti noted that Sirotzsky's sales results were lower than expected, and accordingly she was surprised to learn of Sirotsky's desire to become an office head. ( Id.) Meathe then met with Sirotsky and likewise noted a disconnect between his perception of Sirotsky, her performance and her aspirations. ( Id. at 20-24.) Meathe asked Lockett to perform a review of Sirotzsky, which included interviewing individuals who worked with her. ( Id. at 24.) Lockett prepared a report detailing her findings on July 18, 2002. (Lockett Dep., Docket No. 45, 275; Ex. X.) The report explained, in part, how some Marsh employees struggled to work with Sirotsky because of her "style" and personality, which Lockett attributed to Sirotsky's ethnicity. For example, Lockett wrote
The main reason she is not embraced by her peers is because she is different. When I first met her, I had concerns about her style, but I got to know her. Its [sic] mostly her culture and style. Her style is a reflection of her culture. No matter how long she is in America, she is still Peruvian, she is expressive and she's Latin. If she seems hard on people, it's embedded as a part of her culture.
( Id.)
Meathe thought that Lockett's report was well done, but Brian Goshen ("Goshen"), head of HR of Marsh North America, disagreed and asked her to both rewrite the report with more objective observations and destroy the old report. (Goshen Dep., Docket No. 43, 91-94, 154-59, 164-66.) Lockett rewrote the report to Goshen's satisfaction. (Lockett Dep., Docket No. 45, 338; Ex. Y.) Lockett claims that she "opposed an unlawful discriminatory practice" by writing the memo and that Marsh in retaliation then demoted and terminated her in violation of Ohio Revised Code § 4112.02(I).
The McDonnell Douglas analysis applies to wrongful retaliation claims under Ohio law. Coch v. Gem Indus., Inc., No. L-04-1357, 2005 Ohio App. LEXIS 2825, at *11 (Ohio Ct.App., Lucas County, June 17, 2005). A prima facie retaliation claim requires a plaintiff to show, in addition to the elements required for the prima facie discrimination case, that (1) plaintiff engaged in protected activity, (2) the activity was known to the defendant, (3) the plaintiff was subjected to tangible employment action, and (4) there is a causal link between the protected activity and the adverse employment action. Varner v. Goodyear Tire Rubber Co., 2004 Ohio 4946, 2004 Ohio App. LEXIS 4543, at *P10 (Ohio Ct.App. Summit County, Sept. 22, 2004). If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate reason for its actions. Id. Once the defendant meets its burden, the plaintiff retains the burden of establishing pretext. Id.
Lockett's claim for retaliatory demotion fails for several reasons. Lockett must first show that she engaged in "opposition activity" to become protected by Ohio Revised Code § 4112.02(I). "In order to engage in protected opposition activity . . . a plaintiff must make an overt stand against suspected illegal discriminatory action." Coch, 2005 Ohio 3045, at *P32. Complaints generally concerning unfair treatment which do not specifically address discrimination are insufficient to constitute protected activity. Weaver v. The Ohio State University, 71 F. Supp. 2d 789, 793-94 (S.D. Ohio 1998).
The Sirotzsky memorandum does not rise to the level of an "overt stand against suspected illegal discriminatory action." At most, it is a claim that Sirotsky's mannerisms, which irritated some co-workers, were part of her "culture and style." Lockett wrote that Sirotsky's "peers are less tolerant of the attributes that are a part of her interpersonal style (aggressive, intense, offensive) and her ethnicity and culture (strong accent, strong/loud voice, very expressive etc.) [and] they expect something different from someone at her level." (Lockett Dep., Docket No. 45, Ex. X.) Claiming one's co-workers do not understand an employee's abrasive manner is not an overt stand against suspected race discrimination. See Jackson v. Champaign Nat'l Bank and Trust Co., No. 00AP-170, 2000 Ohio App. LEXIS 4390 (Ohio Ct.App. Franklin County Sept. 26, 2000) ("A vague charge of discrimination in an internal letter or memorandum is insufficient to constitute opposition to an unlawful employment practice."). The memorandum does not constitute activity protected under § 4112.02(I).
Lockett also claims that her involvement in diversity initiatives at Marsh, including presenting programs on the merits of a diverse workforce, constitutes opposition activity under § 4112.02(I). This claim is misguided. Lockett's work in promoting diversity initiatives at Marsh certainly was not an overt stand against suspected race discrimination. See Coch, 2005 Ohio 3045 at *P32. The Sixth Circuit has found such involvement in diversity initiatives is not protected opposition activity where the diversity initiatives are not required by state law. Johnson v. Honeywell, 955 F.2d 409, 415-16 (6th Cir. 1992) (construing similar Michigan statute) ( abrogated on other grounds by McKennon v. Nashville Banner Publ. Co., 513 U.S. 352 (1995)). Inasmuch as Ohio law does not require such initiatives, Lockett's involvement was not protected opposition activity under § 4112.02(I).
Even if Lockett had engaged in protected activity, she cannot show pretext. As previously established, Defendants have provided evidence of a legitimate reason for Lockett's demotion — that Corsetti sought to realign Lockett's position with Marsh's organizational structure throughout other regions. When then faced with the ultimate burden of proving pretext, Lockett can only offer the previously discussed irrelevant stray remarks and allegations involving Brian Goshen, when he directed her to rewrite the Sirotsky memorandum. Lockett, however, does not allege Goshen took part in the decision to demote her; at best, he asked her to discard and rewrite a piece of work that he believed was not objective, which does not qualify as "protected activity" under Ohio Revised Code § 4112.02(I). Thus, Defendants are entitled to judgment as a matter of law on Lockett's retaliatory demotion claim.
2. Retaliatory Termination Claim
Defendants are also entitled to summary judgment on the claim that Lockett was terminated in violation of Ohio Revised Code § 4112.02(I). Although Lockett did engage in protected activity ( i.e., filing a charge of discrimination with the OCRC after her demotion), she can neither meet the prima facie case nor show that the legitimate reason for terminating her offered by Marsh was a pretext for discrimination. She cannot satisfy the prima facie case because she has failed to show any additional evidence of causation besides temporal proximity. Boggs, 2005 Ohio 1264, at *P26 (Under Ohio law, "[t]emporal proximity alone does not support a claim of retaliation if there is no other compelling evidence."); Coch, 2005 Ohio 3045, at *P40. Lockett has not alleged that Tatum ever even spoke to her about the OCRC charge. She fails to produce any "evidence from which an inference could be drawn that the adverse action would not have been taken in the absence of the protected conduct." Weigel v. Baptist Hospital, 302 F.3d 367, 381 (6th Cir. 2002). See Boggs, 2005 Ohio 1264, at *P25.
In addition, even if temporal proximity alone were enough under Ohio law, cases construing federal retaliation law illustrate that the eleven-month gap between Lockett filing her charge with the OCRC and her termination fails to establish an inference of causality. See Clark County Sch. Dist. V. Breeden, 532 U.S. 268, 273 (2001) ("Action taken . . . 20 months later suggests, by itself, no causality at all."); Foster v. Solvay Pharmaceuticals, Inc., 160 Fed Appx. 385, 389 (5th Cir. 2005) (a six month gap from the filing of the lawsuit and eleven months from the filing of the EEOC charge is "too great to establish retaliation based merely on temporal proximity"); Bell v. Bank of Am., 171 Fed. Appx. 442, 444 (5th Cir. 2005) (seven months between filing of EEOC charge and termination too great a gap to establish causation); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (three months is insufficient).
Moreover, even if Lockett had established a prima facie case, as previously discussed, she cannot show pretext. Indeed, as previously discussed, her fate was no different than the thousands of employees who lost their jobs and had not filed charges of discrimination. Therefore, Defendants are entitled to summary judgment on Lockett's retaliatory termination claim.
E. Wrongful Discharge in Violation of Ohio Public Policy Claim
Lockett's wrongful discharge claim based on Ohio public policy fails as well. Because her claim is based on public policy as set forth in Chapter 4112, its viability hinges on the merits of her statutory claims of discrimination. Whitt v. Lockheed Martin Util. Svcs. Inc., 209 F. Supp. 2d 787, 792 (S.D. Ohio 2002). Since Defendants are entitled to summary judgment on Lockett's statutory claims, her wrongful discharge claim cannot succeed. Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 569 (6th Cir. 2003) ("Under Ohio law . . . when the employee's discharge is not actionable under the law that establishes the `clear public policy,' the companion common-law claim for relief likewise fails as a matter of law.").
Even if Lockett's statutory claims survived summary judgment, the Court questions whether the claim for violation of Ohio public policy would remain viable due to the availability of a statutory cause of action. See Carrasco v. NOAMTC Inc., 124 Fed. Appx. 297, 304 (6th Cir. 2004) ("Because Carrasco has remedy available to him under both Title VII and the OCRA, we find that he cannot have that same claim under Ohio common law."). It is at least clear that Ohio does not recognize a common law claim for wrongful discharge based on Ohio's public policy against age discrimination. Leininger v. Pioneer Nat'l Latex, No. 05-COA-048, 2007-Ohio-4921 (Ohio Sept. 27, 2007).
F. Intentional Infliction of Emotional Distress Claim
Defendants are also entitled to summary judgment on Lockett's clam for intentional infliction of emotional distress. As the Court has illustrated, Lockett has failed to produce sufficient evidence to create a genuine issue of material fact as to her claims of discriminatory and retaliatory demotion and termination. Ohio law provides that "[e]ven an employee's termination, even if based upon discrimination, does not rise to the level of `extreme and outrageous conduct,' without something more. If such were not true, then every discrimination claim would simultaneously become a cause of action for the intentional infliction of emotional distress." Godfredson v. Hess Clark, Inc., 173 F.3d 365, 376 (6th Cir. 1999). Lockett has offered no such additional evidence, instead citing again the demotion and termination. Thus, there is no genuine issue of material fact and defendants are entitled to judgment as a matter of law on Lockett's intentional infliction of emotional distress claim.
G. Discrimination in Terms and Conditions of Employment Claim
Lockett concedes that Count VII does not apply to Defendant Becker. (Plf.'s Opp. to Charles Becker's Mot. for Summ. J. p. 14 n. 3.) Becker is therefore entitled to summary judgment on Lockett's claim for discrimination in terms and conditions of employment.
III. CONCLUSION
For the foregoing reasons, the Court finds the motion of Marsh USA Inc. for summary judgment (Docket No. 29) well taken and it is hereby GRANTED. (Since Marsh did not move for summary judgment with respect to Cause of Action VII, this cause of action survives against Marsh.) The Court further finds that the motion of Defendant Charles Becker for summary judgment (Docket No. 31) is also well taken and hereby GRANTED. Defendant Charles Becker is dismissed from this action.