Summary
In Pollard v. Alsco, Inc., No. 1:09-cv-873, 2011 WL 1595147 (S.D. Ohio Apr. 27, 2011), this Court found that "a promise for an 'automatic promotion' is a promise of future benefits or opportunities without a specific promise of continued employment and therefore does not support a finding of promissory estoppel."
Summary of this case from Lawrence v. Booz Allen Hamilton, Inc.Opinion
Case No. 1:09-cv-873.
April 27, 2011
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 13)
This civil action is before the Court on Defendant's motion for summary judgment (Doc. 13) and the parties' responsive memoranda (Docs. 16, 28).
Plaintiff requests oral argument on this motion. (Doc. 16). Local Rule 7.1(b)(2) anticipates oral argument only if it is "deemed to be essential to the fair resolution of the case because of its public importance or the complexity of the factual or legal issues presented." Here, the Court finds, however, that the pleadings are clear on their face and that oral argument is not necessary. See also Whitescarver v. Sabin Robbins Paper Co., Case No. C-1-03-911, 2006 U.S. Dist. LEXIS 51524, at *7 (S.D. Ohio July 27, 2006) (J. Dlott) ("Local Rule 7.1(b)(2) leaves the Court with discretion whether to grant a request for oral argument.").
I. BACKGROUND
Plaintiff alleges that Defendant violated the ADEA, ADA, and FMLA, as well as corresponding state law claims by not promoting him and ultimately terminating him. The six claims asserted against Defendant include: age discrimination, retaliation claims based on age, disability discrimination, retaliation claims based on disability, FMLA retaliation, and promissory estoppel. Defendant moves for summary judgment on each of Plaintiff's claims.II. UNDISPUTED FACTS
Pursuant to rule, the parties each presented statements of the undisputed facts. (Docs. 17 and 27). See the Appendix to this Order, supra, for a comprehensive statement of the disputed and undisputed facts.III. STANDARD OF REVIEW
A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of showing the absence of genuine disputes over facts which, under the substantive law governing the issue, might affect the outcome of the action. Celotex, 477 U.S. at 323. All facts and inferences must be construed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248 (1986).
IV. ANALYSIS
A. Age Discrimination/Retaliation
Plaintiff claims that Defendant discriminated against him on the basis of age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq.
Plaintiff has no direct evidence of discrimination and therefore must make his case under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under the McDonnell Douglas analysis, Plaintiff must first make a prima facie showing on the discrimination and retaliation claim. If Plaintiff makes such a showing, the burden shifts to the Defendant to show a nondiscriminatory reason for its employment decision. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). If Defendant satisfies its burden of production, then Plaintiff must prove by a preponderance of the evidence that Defendant's proffered reason was not its true reason but was in fact a pretext for illegal discrimination or retaliation. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
"Direct evidence of discrimination is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009). See also Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) ("a facially discriminatory employment policy or a corporate decision maker's express statement of a desire to remove employees in the protected group is direct evidence of discriminatory intent").
1. Prima Facie Case
To make a prima facie claim for age discrimination Plaintiff must demonstrate that: (1) he was a member of the protected class; (2) he suffered an adverse employment action; (3) he was qualified for the position; and (4) he was replaced by someone outside the protected class. Geiger v. Tower Auto, 579 F. 3d 614, 622-623 (6th Cir. 2009). That Plaintiff satisfies the first three prongs of Plaintiff's age discrimination claim is not disputed. At issue is whether Plaintiff has sufficient evidence to prove that he was replaced or passed over for a promotion by someone "substantially younger."
Plaintiff was born on September 20, 1960 and was 46 years old when he was hired; he was therefore a member of a protected class of employees over the age of 40. (Doc. 13, Ex. 4 at 6). See also 29 U.S.C. § 623(a).
Plaintiff alleges that he suffered three adverse employment actions: (1) not being promoted to a route driver immediately before or after taking FMLA leave; (2) not being given the route that was awarded to Ben Bolt; and (3) being discharged.
A person is "replaced" when another employee is hired or reassigned to perform the plaintiffs duties. Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir.), cert. denied, 498 U.S. 878 (1990).
If Plaintiff seeks to establish that she was treated less favorably than a similarly-situated individual, he must prove that all relevant aspects of his employment situation were similar to those of the employee with whom he seeks to compare himself. Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). "[T]he individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Id. at 352.
Plaintiff claims that he was replaced by similarly situated younger individuals, Kevin McCracken and Ben Bolt. Specifically, McCracken and Bolt were both given routes that Plaintiff alleges he was promised.
Mr. McCracken was born in 1970 and is approximately 41 years old. (Doc. 16, Ex. A; Doc. 13, Ex. 4 at 91-92). Mr. Bolt is 25 years younger than Plaintiff. (Doc. 16, Ex. B).
Mr. McCracken was not hired as a route skip driver, the position held by Plaintiff, but rather as a route driver. (Doc. 13, Ex. 4 at 94). Mr. McCracken was a transfer from a Florida branch where he had been a route driver, was considered an "all-star, top-four performer," and was highly recommended by the general manager in that territory. (Doc. 20 at 81). These are circumstances that distinguish Defendant's treatment of Mr. McCracken from that of the Plaintiff. See, e.g., Ercegovich, 154 F.3d at 352. Accordingly, the Court finds that Mr. McCracken was not similarly situated to Plaintiff and therefore is not a proper comparator.
Ben Bolt was hired as a route skip driver in January 2008 while Plaintiff was out on FMLA leave. (Doc. 13, Ex. 4 at 105). When Plaintiff returned from medical leave, Defendant retained both Plaintiff and Mr. Bolt as route skip drivers. ( Id. at 106). Several months later in approximately August 2008, Defendant created a new permanent route called the 1-275 loop. (Doc. 13, Ex. 4 at 110-111; Doc. 19 at 41). Defendant assigned the route to Mr. Bolt. (Doc. 13, Ex. 4 at 111; Doc. 19 at 35-36). In addition to being 25 years younger than Plaintiff and being hired after Plaintiff, Mr. Bolt had already wrecked a company vehicle. (Doc. 16, Ex. B; Doc. 19 at 60). Accordingly, Plaintiff has presented sufficient facts to establish that a younger similarly situated employee was treated more favorably.
Q: And when you came in after leave, was Mr. Bolt, Ben Bolt — we will have to use both names with him — was Ben Bolt performing the skip driver job, as well as you?
A: Yes, both of us.
Q: So you had two skip drivers and then three route drivers?
A: Correct.
Q: Did Mr. Ben Bolt continue to do the skip helper up until your departure from ALSCO?
A: Yes.
(Doc. 13, Ex. 4 at 105-06).
Mr. Bolt caused $5,000 in damage to the roof of his truck and was laid off for 3 days as a disciplinary measure. (Doc. 16, Ex. B).
Additionally, Plaintiff alleges that Mr. Chilton made comments about his age such as, "old man get out of my way, you're too slow" and "old man, you're slower than sh_t." (Doc. 13, Ex. 4 at 185-86). Mr. Dobbs allegedly made similar comments. (Doc. 19 at 47-49). Therefore, Plaintiff has alleged sufficient facts to state a prima facie case.
2. Defendant's non-discriminatory reason for termination/failure to promote
After Plaintiff has established a prima facie case, the burden of production shifts to the Defendant to articulate a legitimate, nondiscriminatory reason for termination or failure to promote. Burdine, 450 U.S. at 253. It has done so by alleging that Plaintiff was not promoted for poor customer service and ultimately terminated for stealing money and fuel.
Plaintiff admits that he was told, and that he understood at the time of his hiring and after, that if he wanted to obtain the position of a regular route driver, he would need to provide good customer service and perform well at all of the tasks of a route skip helper. (Doc. 13, Ex. 4 at 53-54). Regarding the route given to Ben Bolt, Plaintiff admits that he only assumed that he would be given that route:
Q: What did he [Chilton] say to you? Did he say Kevin, this is going to be your route?
A: It was — no, I assumed that was the case. That was why — that was never a topic of conversation.
(Doc. 13, Ex. 4 at 114).
Defendant maintains that Plaintiff was not promoted to a full route because of customer complaints. (Doc. 13, Ex. 4 at 79). Plaintiff admits that Defendant received customer complaints about his performance. ( Id. at 80).
Defendant alleges that Plaintiff was terminated for stealing money and fuel. Plaintiff admits that on two separate occasions, in June 2008 and September 2008, cash deposits that had been given to him from customers came up missing. (Doc. 13, Ex. 4 at 162). Plaintiff has no explanation as to why or how the June deposit came up missing, but claims that David Dobbs took the September deposit. ( Id. at 168). Plaintiff admits that the documents relied on by Defendant make it appear that Plaintiff stole fuel from the company. ( Id. at 138-39).
Defendant performed an investigation regarding the theft of the fuel card and Reggie Reich, Regional Human Resources Manager, ultimately approved the decision to terminate Plaintiff. (Doc. 23 at 18). Ms. Reich testified: "I asked Mr. Pinnick to make sure he investigated properly the gas card situation and asked him to send me the Wright Express reports regarding the supposed misuse of the card, and also the Wright Express report for the unleaded fuel being put in the diesel truck. He sent me both, and I approved termination." ( Id. at 20-21).
Accordingly, the Court finds that Defendant has stated legitimate non-discriminatory reasons for failing to promote and for ultimately terminating Plaintiff.
3. Whether the failure to promote and termination was pretext for discriminatory animus
Once the defendant articulates a legitimate non-discriminatory reason for its termination, the burden shifts back to the plaintiff to establish that the defendant's "proffered reason was a mere pretext for intentional age discrimination." McDonnell Douglas Corp., 411 U.S at 802-805. In order to establish pretext, Plaintiff must demonstrate that the reasons given by Defendant for his discharge: (i) had no basis in fact, or (ii) did not actually motivate the decision, or (iii) were not sufficient to warrant the action taken. Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1083 (6th Cir. 1994). "A defendant's proffered reason cannot be proved to be pretext unless it is shown both that the reason was false, and that discrimination . . . was the real reason." Moore v. Abbott Labs, No. 2:05cvl065, 2011 U.S. Dist. LEXIS 11935, at *8 (Feb. 7, 2011 S.D. Ohio). A prima facie case, plus a showing that the defendant's articulated reason is false, is sufficient for a plaintiff to prevail. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509-510 (1993). See also Kline v. Tennessee Valley Auth., 128 F.3d 337, 347 (6th Cir. 1997).
A plaintiff must allege more than a dispute over the facts upon which his discharge was based in order to establish pretext. Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th Cir. 2001). He must put forth evidence that demonstrates the employer did not "honestly believe" in the proffered nondiscriminatory reason for its adverse employment action. Id. In determining whether an employer "reasonably relied on the particularized facts then before it, "it is not necessary that the decisional process used by the employer be optimal or that it left no stone unturned." Id. at 493. "Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action." Id.
The record contains a plethora of inconsistencies and contradictions regarding the basis for Defendant's decision not to promote Plaintiff and ultimately to terminate his employment. For example, no Defendant employee took responsibility for assigning the routes to McCracken or Bolt. Specifically, Mr. Chilton testified that he was not responsible for assigning routes and instead said that Mr. Dobbins or Mr. Wilder would have made those decisions. (Doc. 19 at 38, 50-51, 59-61). Mr. Wilder, however, testified that decisions were made by Mr. Chilton. (Doc. 24 at 13-14). Mr. Dobbins disclaimed any responsibility for assigning routes to Bolt or McCracken. (Doc. 20 at 46-47). Mr. Pinnick testified that assigning duties should have been Mr. Chilton's responsibility with Mr. Dobbins' approval. (Doc. 22 at 35, 39-40). These discrepancies create a credibility issue.
With respect to the customer complaints, Mr. Dobbins denied that any customer complaints prevented Plaintiff's promotion. (Doc. 20 at 53, 54, 58). However, Mr. Dobbins testified that Mr. Chilton told him that when he (Chilton) filled in for Plaintiff while he was out on leave, he learned of customer complaints about Plaintiff. (Doc. 20 at 51-52, 54-55). Mr. Dobbins said he thought Mr. Wilder confirmed the complaints, but Wilder testified otherwise. (Doc. 20 at 101; Doc. 24 at 16-17). Mr. Wilder testified that Mr. Chilton told him of customer complaints about Plaintiff and that he decided not to give Plaintiff a permanent route due to poor performance. (Doc. 24. at 15-18; Doc. 20 at 29). Mr. Chilton could only recall one complaint but could not recall the specifics. (Doc. 19 at 52-53, 57). Mr. Chilton claimed that he did not know whether customer complaints had anything to do with Plaintiff not getting a route and that he did not recall telling Plaintiff that he was not getting a route due to complaints. ( Id. at 55-59). Mr. Pinnick claimed that Mr. Chilton told him about Plaintiff's desire for the 275 route, but that customer complaints prevented him from getting it. (Doc. 22 at 35). Mr. Pinnick claimed to have seen a written complaint about Plaintiff and testified that it would be in his file. (Doc. 20 at 52; Doc. 24. at 15-18, 22-24; Doc. 22 at 30, 36). Plaintiff could only recall one customer complaint, but Defendant failed to produce evidence of a single customer complaint. (Doc. 13, Ex. 4 at 78-80).
There were no written complaints in Plaintiff's file.
There are also credibility issues with regard to the decision to terminate Plaintiff. Mr. Pinnick testified that it was Mr. Chilton's decision to terminate Plaintiff with input from Mr. Dobbins. (Doc. 22 at 46, 62-65). Mr. Reich and Mr. Wilder both claimed that Mr. Chilton was responsible for making the recommendation; Mr. Wilder claimed that Mr. Dobbins was responsible for approving it; Ms. Reich claimed that she had approval responsibility. (Doc. 24 at 32; Doc. 23 at 18-19). Mr. Wilder denied any involvement in the termination decision (Doc. 24 at 26), as did Mr. Chilton, who pointed to Mr. Wilder and Mr. Dobbins as decision makers (Doc. 19 at 51, 55-56, 88-91).
Mr. Pinnick and Mr. Dobbins testified that the alleged fuel theft was the reason for termination. (Doc. 22 at 54; Doc. 20 at 67-68). Mr. Chilton, however, testified that he thought Mr. Dobbs was responsible for the fuel theft. (Doc. 19 at 63, 80-81, 88-91).
Mr. Dobbs was caught stealing fuel from the company and was terminated in January 2009. (Doc. 23 at 16).
Plaintiff denied pocketing cash paid by customers in June and September. (Doc. 13, Ex. 4 at 163-164). Mr. Pinnick admitted that it would be foolish for a driver to record a deposit on a settlement sheet and then steal the money. (Doc. 22 at 32, 55-56). Mr. Pinnick also admitted that it was odd that Plaintiff would have told him about fuel theft if he had committed the offense. ( Id. at 48). Furthermore, it is unclear whether there was a proper investigation of the fuel theft and missing deposits. Ms. Reich told Mr. Pinnick not to terminate Plaintiff if he had a reasonable explanation for the back to back fuel charges. (Doc. 23 at 23-24). Despite the fact that Plaintiff allegedly provided an explanation, he was terminated. (Doc. 22 at 44-45, 52-54; Doc. 20 at 63-64; Doc. 19 at 85-86; Doc. 13, Ex. 4 at 174-175).
Moreover, discriminatory remarks can constitute probative evidence of pretext. Risch v. Royal Oak Police Dept., 581 F.3d 383, 393 (6th Cir. 2009). This is true even when the remarks are made by a non-decisionmaker or when they fail to coincide precisely with the particular time frame surrounding the events giving rise to the claim. Id. To determine the significance of the discriminatory remarks, the court must consider the factors affecting their probative value, including "the declarant's position in the [employer's] hierarchy, the purpose and content of the statement, and the temporal connection between the statement and the challenged employment action, as well as whether the statement buttresses other evidence of pretext." Although Mr. Chilton denies that he made discriminatory remarks about Plaintiff's age, he admits that he heard Mr. Dobbs making such comments. (Doc. 19 at 47-49). Who made such statements and what exactly was said are disputed issues of fact. However, the Court focuses on the fact that the alleged statements are clearly directed toward Plaintiff's abilities based on his age. Disparaging comments regarding Plaintiff's age buttress a finding of pretext by casting doubt on the legitimacy of the proffered reasons for his not being promoted and discharged.
The Court cannot resolve these issues on summary judgment. There are multiple disputes as to why Plaintiff was not promoted and ultimately terminated. The Court cannot resolve these factual issues because credibility determinations and the weighing of the evidence are jury functions. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Accordingly, Defendant's motion for summary judgment on age discrimination/retaliation claims is DENIED.
Plaintiff alleged discrimination under the ADEA (Count I) and Ohio Rev. Code Chapter 4112 (Count II), and retaliation claims under the ADEA (Count III) and Ohio Rev. Code Chapter 4112 (Count IV).
B. Disability Discrimination/Retaliation
Plaintiff alleges that he was "regarded as disabled" and discriminated against in violation of Ohio Revised Code § 4112. Pursuant to Ohio Rev. Code § 4112.01(A)(13):
[D]isability means a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of physical or mental impairment; or being regarded as having a physical or mental impairment.
The ADA prohibits a covered employer from "discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). Similar to the ADA's general prohibition, Ohio law makes it unlawful for an employer, "because of the . . . disability . . . 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." Ohio Rev. Code § 4112.02(A).
Plaintiff does not claim that he is actually disabled. Instead, he claims that Defendant perceived him to be disabled which led to his termination. 42 U.S.C. § 12102(2); Ohio Rev. Code § 4112.01(13). In order to be "regarded as disabled":
(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999).
See also Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 704 (6th Cir. 2008) (to establish a prima facie case under a "regarded as" theory of disability discrimination, a plaintiff is required to show that the employer "entertains misperceptions" about him by (1) mistakenly believing that he has a physical impairment that substantially limits one or more major life activities, or (2) mistakenly believing that an actual, non-limiting impairment substantially limits one or more major life activities).
Under the McDonnell Douglas test, Plaintiff must show that at the time of the adverse employment action: 1) he was an individual with a "disability" as defined by the ADA; (2) he was otherwise qualified for the position, with or without reasonable accommodation; (3) he suffered an adverse employment decision; (4) Defendant knew or had reason to know of Plaintiff's disability; and (5) Plaintiff was replaced by another individual. Monette v. Electronic Data Syst. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996).
Upon careful consideration of the record evidence and the parties' arguments, the Court finds that Plaintiff cannot meet his initial burden because he was not an individual with a disability, nor was he perceived as having a disability.
Q. Are you aware of Mr. Chilton making any comments to anybody else that you physically can't do the job?
A. No.
Q. Do you know if anyone or are you aware of anyone that thinks you have a disability?
A. At this time?
Q. At any time?
A. Am I aware of?
Q. Yeah, Do you know of anyone who things you have a disability
A. At this point, no.
(Doc. 13, Ex. 4 at 108-09).
Plaintiff must demonstrate that the Defendant held the mistaken belief that he was disabled within the meaning of the anti-discrimination laws. Spees v. James Marine, Inc., 617 F.3d 380, 397-399 (6th Cir. 2010) (evaluating whether the employer viewed the plaintiffs impairment as substantially limiting the major life activity of working within the framework of the regulations accompanying the ADA). Plaintiff has failed to make this showing. The fact that Plaintiff took FMLA leave does not equate to a disability under the anti-discrimination statutes. Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 703 (6th Cir. 2008). Plaintiff has not produced any evidence to show that the Defendant considered his injury to be disabling within the meaning of the anti-discrimination laws. Accordingly, the Court concludes as a matter of law that Plaintiff is not a disabled person within the meaning of the ADA or Ohio Rev. Code Ch. 4112, and therefore cannot establish an essential element of his disability discrimination claims.
Plaintiff took two months of FMLA leave to have surgery on his colon and recover from that surgery. (Doc. 13, Ex. 4 at 81-84, 88, 97; Doc. 19 at 32; Doc. 22 at 18; Doc. 20 at 30-31).
Accordingly, Defendant is entitled to summary judgment as a matter of law on Plaintiff's disability discrimination claims.
Plaintiff alleged disability discrimination under the ADA (Count VI) and Ohio Rev. Code Chapter 4112 (Count VII), and retaliation claims under the ADA (Count VIII) and Ohio Rev. Code Chapter 4112 (Count IX).
D. FMLA Retaliation
Plaintiff claims that Defendant interfered with his exercise of rights under the FMLA and terminated his employment in retaliation for his use of FMLA leave. The FMLA prohibits qualifying employers from "interfer[ing] with, restrain[ing], or deny[ing] the exercise of or the attempt to exercise, any right provided under th[e] [FMLA]." 29 U.S.C. § 2615(a)(1).
The FMLA requires eligible employers to provide up to twelve weeks of leave per year to employees to care for a child, spouse, or parent with a "serious health condition" or for the employee's own serious health condition. 29 U.S.C. § 2612(a). Congress passed the FMLA "to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity." 29 U.S.C. § 2601(b)(1).
To state a prima facie case of FMLA retaliation, a plaintiff must establish that "(1) he was engaged in an activity protected by the FMLA; (2) the employer knew that he was exercising his rights under the FMLA; (3) after learning of the employee's exercise of FMLA rights, the employer took an employment action adverse to him; and (4) there was a causal connection between the protected FMLA activity and the adverse employment action." Killian v. Yorozu Auto. Tennessee, Inc., 454 F.3d 549, 556 (6th Cir. 2006).
Plaintiff claims that within six months of his FMLA leave he was denied a promised promotion twice and then terminated. Specifically, Plaintiff claims that Mr. Chilton told him that he did not get a promotion because he had taken FMLA leave. (Doc. 13, Ex. 4 at 102). Mr. Chilton denies this allegation.
Q: Okay. All right. Do you remember telling Kevin that he didn't get the route Kevin McCracken got — let me start that over. Do you remember telling Kevin Pollard that he didn't get the route Kevin McCracken got because Kevin Pollard had to be out on leave during that two or three month period?
A: I do not. I did not.
Q: You do not remember telling him that?
A: No, I did not tell him that.
Q: How do you know that?
A: Because I wouldn't say that.
Q: Why not?
A: Because it was never his route.
(Doc. 19 at 36-37).
The evidence shows that Mr. McCracken was hired on December 3, 2007, and Plaintiff did not take FMLA leave until January 11, 2008. (Doc. 13, Ex. 4 at 97). Additionally, Defendant could not have known about Plaintiffs FMLA leave at the time Defendant hired Mr. McCracken because Plaintiff admitted that Mr. McCracken was hired before Plaintiff even considered the need to apply for FMLA leave. ( Id. at 91). Therefore, Plaintiff's claim for FMLA retaliation fails as to Defendant hiring Mr. McCracken for the Columbus route instead of promoting Plaintiff. There is no causal connection between the FMLA leave and the adverse employment action.
Q. Okay, prior to your going on leave, Scott, one of the route drivers, had left. He had left about a month and a half or two months before you went on leave, correct?
A. Right before any of that happened . . .
Q. Okay, and during that time, those two months before you left, was somebody hired to fill Scott's position?
A. Someone was brought it, yes.
Q. And who was that?
A. That was Kevin McCracken.
(Doc. 13, Ex. 4 at 91-92).
In August 2008, Mr. Bolt, who was hired while Plaintiff was out on FMLA leave, was promoted to a route driver in lieu of Plaintiff. Plaintiff claims that temporal proximity (between the protected action and the allegedly retaliatory discharge) is sufficient to establish a prima facie case. Singfield v. Akron Metro. Housing Auth., 389 F.3d 555, 563 (2004). See also Dicarlo v. Potter, 358 F.3d 408, 421 (6th Cir. 2004) (citing cases where a time lag of six months has been sufficient, even without further evidence, to make out a prima facie case of retaliation). However, there is also a significant body of Sixth Circuit case law holding that temporal proximity between protected activity and an adverse employment action may not give rise to a finding of a causal connection unless it is "coupled with other indicia of retaliatory conduct." Dixon v. Gonzales, 481 F.3d 324, 333-334 (6th Cir. 2007). See also Randolph v. Ohio Dep't of Youth Servs., 453 F.3d 724, 737 (6th Cir. 2006) ("although temporal proximity itself is insufficient to find a causal connection, a temporal connection coupled with other indicia of retaliatory conduct may be sufficient to support a finding of a causal connection"); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000) ("temporal proximity alone does not support an inference of retaliatory discrimination in the absence of other evidence").
As explained in detail in Section IV.A, the factual contradictions in the record with respect to Defendant's reasoning for not promoting Plaintiff and ultimately terminating his employment are unclear, and such discrepancies in combination with the temporal proximity of Plaintiff's FMLA leave support a finding of causal connection. Accordingly, Defendant's motion for summary judgment on Plaintiff's FMLA claim (Count V) is DENIED.
E. Promissory Estoppel
Finally, Plaintiff alleges that Defendant was estopped from not promoting Plaintiff and terminating his employment. Conversely, Defendant contends that the Court should grant summary judgment on the promissory estoppel claim because there is no evidence of a clear and unambiguous promise and it was not reasonable for Plaintiff to rely on any purported promise.
In Ohio, "[t]he doctrine of promissory estoppel comes into play where the requisites of a contract are not met, yet the promise should be enforced to avoid injustice." Olympic Holding Co. v. ACE Ltd, 909 N.E.2d 93, 100 (Ohio 2009). In Ohio, the elements of promissory estoppel are: (1) a clear and unambiguous promise; (2) reliance upon the promise; (3) reliance that is both reasonable and foreseeable; and (4) injury to the party as a result of the reliance. Kirkland v. St. Elizabeth Hosp., 120 F.Supp.2d 660, 670 (N.D. Ohio, 2000) (citing Weiper v. W.A. Hill Assocs., 661 N.E.2d 796 (Ohio App. 1 Dist. 1995)). As the Sixth Circuit noted in a case interpreting Ohio's application of promissory estoppel to the employment setting, the test is "whether the employer should have reasonably expected its representation to be relied upon by its employee." Kasuri v. St. Elizabeth Hosp. Med. Center, 897 F.2d 845, 855 (6th Cir. 1990).
In order to overcome a summary judgment motion and to raise a factual issue as to whether an employment-at-will agreement has been altered by an implied agreement, the trier of fact can consider the history of the relations between the employer and employee and the facts and circumstances surrounding the employment at will relationship. Wright v. Honda of Am. Mfg., Inc., 653 N.E.2d 381, 384 (Ohio 1995).
Ohio has a strong presumption in favor of employment relationships being terminable at-will. Cox v. True N. Energy, 524 F.Supp.2d 927, 946 (N.D. Ohio 2007). "To maintain a promissory estoppel claim, an at-will employee must allege detrimental reliance on specific promises of job security." Gouge v. BAX Global Inc., 252 F.Supp.2d 509, 519 (N.D. Ohio Mar. 11, 2003). The promise must be clear and unambiguous in its terms, and the detrimental reliance must be justified and reasonable. Id. Courts have held that "vague or nebulous assurances of job security are not sufficient." Abdulnour v. Campbell Soup Supply, 464 F.Supp.2d 711, 720 (N.D. Ohio 2006). "A promise of future benefits or opportunities without a specific promise of continued employment does not support a promissory estoppel exception to the well-established doctrine of employment-at-will." Wing v. Anchor Media, 570 N.E.2d 1095, 1099 (Ohio 1991).
"[D]iscussion of future career development will not modify the employment-at-will relationship." Helmick v. Cincinnati Word Processing, Inc., 45 Ohio St.3d 131, 135-36 (Ohio 1989).
Plaintiff alleges that Defendant promised him an automatic promotion and that he reasonably relied on that promise to his detriment. (Doc. 16 at 19). Specifically, Plaintiff claims that at his interview, Mr. Dobbins told him that based on seniority and upon good performance, he would automatically get the next available permanent route. (Doc. 13, Ex. 4 at 53; Doc. 20 at 56-57; Doc. 24 at 20).
First, a promise for an "automatic promotion" is a promise of future benefits or opportunities without a specific promise of continued employment and therefore does not support a finding of promissory estoppel. Wing, 570 N.E.2d at 1999. Plaintiff admits that he was told, and that he understood at the time of his hiring, that if he wanted to obtain the position of a regular route driver, he would need to provide good customer service and perform well at all of the tasks of a route skip helper. (Doc. 13, Ex. 4 at 53-54). Moreover, Plaintiff does not allege how he detrimentally relied on this promise. Accordingly, Plaintiff has failed to state a claim for promissory estoppel (Count X), and Defendant is granted summary judgment on this claim.
V. CONCLUSION
Based on the evidence of record, the Court orders that Defendant's motion for summary judgment (Doc. 13) is GRANTED in part and DENIED in part.
Defendant's motion is GRANTED as to:
1. Plaintiff's disability discrimination claims (Counts VI, VII, VIII, and IX); and
2. Plaintiff's promissory estoppel claim (Count X).
Plaintiff may proceed on all remaining claims (Counts I, II, III, IV, V).
IT IS SO ORDERED.
APPENDIX UNDISPUTED FACTS
The numbered paragraphs contain undisputed facts and the footnotes outline disputed facts. See Docs. 17 and 27.
1. Plaintiff, born in 1960, began working for Alsco at its Cincinnati location in December 2006 as a Route Helper/Skipper. (Doc. 19 at 19; Doc. 13, Ex. 4 at 6, 16, 46-49, 54; Doc. 20 at 13, 15).
2. Defendant's Cincinnati location ran three full permanent routes: Cincinnati, Columbus, and Dayton; and a partial route to Lexington. (Doc. 19 at 40-41).
3. When Plaintiff substituted for a driver, he delivered orders, accepted orders for the following week, and picked up dirty linens. (Doc. 13, Ex. 4 at 50).
4. When he provided support, Plaintiff normally drove the company van. ( Id. at 127).
5. Each driver took turns being on call on the weekends and a day or two during the week. (Doc. 13, Ex. 4 at 131). On these on-call days, the driver would bring the van home. ( Id. at 131).
6. Drivers were allowed to accept cash payment from customers. (Doc. 19 at 71-72; Doc. 23 at 74-75).
7. They completed a deposit slip and settlement sheet when they received this cash. (Doc. 13, Ex. 4 at 164; Doc. 19 at 70-71). Drivers totaled the prepaid income and cash income at the end of the day on the settlement sheet. (Doc. 13, Ex. 4 at 166-167; Doc. 19 at 75-76).
8. Drivers put the cash, deposit slip and settlement sheet in an interoffice company bag which is kept at the branch and then taken to Indianapolis. (Doc. 19 at 73-76; Doc. 13, Ex. 4 at 167).
9. In January 2008, Plaintiff took two months of FMLA leave for his own serious health condition. (Doc. 13, Ex. 4 at 81-84, 88, 97; Doc. 19 at 32; Doc. 22 at 18; Doc. 20 at 30-31).
10. Plaintiff told Mr. Chilton about his need for leave about one month prior to its start and Defendant certified the two-month absence as FMLA leave. (Doc. 22 at 34-35; Doc. 13, Ex. 4 at 86-87, 98; Doc. 19 at 32).
11. Plaintiff trained Mr. McCracken as directed for about two or three weeks before he started his FMLA leave. (Doc. 13, Ex. 4 at 96-97). When Plaintiff returned, Mr. McCracken was running the Columbus route. (Doc. 13, Ex. 4 at 98; Doc. 19 at 34-35, 36).
12. In approximately August 2008, Defendant started planning a new permanent route called the I-275 loop. (Doc. 13, Ex. 4 at 110-111; Doc. 19 at 41).
13. Defendant gave the route to Ben Bolt, born 1984, who had been hired while Plaintiff was out on leave. (Doc. 16, Ex. B; Doc. 13, Ex. 4 at 111; Doc. 19 at 35-36, 38, 41).
14. On August 27, 2008, Plaintiff had the company van at home because he was on call from August 27 through August 28, 2008. (Doc. 13, Ex. 4 at 132). At about 4:15 p.m. on August 26, [2008], Plaintiff got gas at a Speedway on Galbraith Road and entered mileage of 105,487. ( Id. at 134). He put about 29 gallons of gas in the van. ( Id. at 134).
15. On September 2, 2008, Plaintiff completed a deposit slip and settlement sheet for his route and sent it to Indianapolis through the interoffice mail. (Doc. 13, Ex. 4 at 168-169). He was told the following day that his bag did not arrive in Indianapolis. ( Id. at 169).
16. Plaintiff protested that he sent the bag. (Doc. 13, Ex. 4 at 169-170).
17. On September 4, 2008, Plaintiff, who was on a regular run to Indianapolis, stopped in to see Carol Elder, Billing Specialist, about the missing deposit. (Doc. 13, Ex. 4 at 170).
18. Ms. Elder told him that the settlement sheet and deposit slip arrived, but that the bag did not. (Doc. 13, Ex. 4 at 170-173). Ms. Elder showed Plaintiff the settlement sheets which had been erased. (Doc. 13, Ex. 4 at 170-171; Doc. 22 at 58).
19. On September 11, 2008, Mr. Chilton gave Plaintiff a number of written disciplines and terminated him. (Doc. 19 at 81; Doc. 13, Ex. 4 at 15-16, 147-148, 160; Doc. 22 at 62).
20. Plaintiff was accused of misusing the company fuel card, two separate missing deposits, losing the fuel card on two separate occasions, and putting the wrong type of fuel in the truck. (Doc. 19, Exs. 2, 3, 4; Doc. 19 at 80).
21. Plaintiff denies pocketing cash paid by customers in June and September. (Doc. 13, Ex. 4 at 163-164). Plaintiff also denies that he used the company fuel card for his personal vehicle at that gas station. ( Id. at 136-137, 141).
22. Mr. Pinnick admitted that it would be foolish for a driver to record a deposit on a settlement sheet and then steal the money. (Doc. 22 at 55-56).
23. Mr. Pinnick claims that after Plaintiff stopped to talk with him that day, he reviewed the fuel bill and discovered the back to back fuel up on the van's credit card. (Doc. 22 at 42-43). Mr. Pinnick claims that Ms. Reich instructed him to be sure the records were correct and then terminate Plaintiff. ( Id. at 42-44).
24. Ms. Reich asked Mr. Pinnick to make sure he properly investigated the gas card situation and sent her the credit card reports. (Doc. 23 at 20-21).
25. No one ever told Ms. Reich that Plaintiff had offered an explanation for the missing deposits and fuel card. (Doc. 23 at 25, 50). In fact, Mr. Pinnick told her he could not explain it. ( Id. at 97).
26. Mr. Dobbins did not speak with Plaintiff about the fuel theft or conduct any investigation of the fuel theft. (Doc. 20 at 63-64). Mr. Dobbins also claims that Mr. Chilton told him, through Mr. Pinnick, that Plaintiff could not explain the receipts. ( Id. at 63).
27. Mr. Chilton testified that he had no responsibility assigning routes and instead said Mr. Dobbins or Mr. Wilder would have made those decisions. (Doc. 19 at 38, 50-51, 59-61).
28. Mr. Dobbins likewise disclaimed any responsibility for assigning routes to Bolt or McCracken. (Doc. 20 at 46-47).
29. Mr. Pinnick testified that assigning routes should have been Mr. Chilton's responsibility with Mr. Dobbins' approval and denied any responsibility for assigning routes. (Doc. 22 at 35, 39-40).
30. Mr. Pinnick claimed that Mr. Chilton told him about Plaintiff's desire for the 275 route, but that customer complaints prevented him from getting the route. (Doc. 22 at 35).
31. Mr. Dobbins claims that he never heard any complaints from Plaintiff that he was not given the Columbus route because of his FMLA leave and that it would be a problem if this had happened. (Doc. 20 at 38-39, 54).
32. Ms. Reich agreed that it would be a problem. (Doc. 23 at 62).
33. Mr. Wilder denied any involvement in the termination decision. (Doc. 24 at 26). Mr. Chilton, however, disclaimed any responsibility for the decision to terminate Plaintiff and pointed to Mr. Wilder and Mr. Dobbins as decision makers. (Doc. 19 at 51, 55-56, 88-91).
34. Mr. Chilton could not explain why Plaintiff was not confronted until September 12, 2008 for a deposit allegedly missing on June 30, 2008. (Doc. 19 at 78). Mr. Pinnick admitted that it would be unusual for a driver not to be informed that a deposit was missing. (Doc. 22 at 73).
35. The defense witnesses acknowledged that other drivers put the wrong fuel in company vehicles. (Doc. 20 at 68-69).
36. Mr. Dobbins unequivocally contradicted Mr. Chilton's claim that Mr. Chilton had no role in hiring Plaintiff. (Doc. 20 at 28-29; Doc. 19 at 29).
37. Mr. Chilton issued Plaintiff a warning letter in May 2008 for failure to protect the company fuel card when he allegedly lost the fuel card twice. (Doc. 13, Ex. 4 at 124-125; Doc. 19, Ex. 1).
38. Plaintiff admitted to losing the card one time when it fell out of his shirt pocket when he bent over after fueling the truck, but denies that he lost it a second time. (Doc. 13, Ex. 4 at 124-125). Mr. Chilton only remembered Plaintiff losing the card once. (Doc. 19 at 65-66).
39. Mr. Wilder admitted that the loss of a fuel card was not unprecedented. (Doc. 24 at 25).
40. Mr. Wilder admitted that other employees had the wrong fuel in company vehicles and could not specifically recall if he ever knew of Plaintiff making that mistake. (Doc. 24 at 25; Doc. 20 at 35). Other witnesses admitted that other employees had inadvertently put the wrong fuel in company vehicles without facing termination. (Doc. 20 at 35).