Opinion
Case No. 1:04 CV 2199.
September 30, 2005
Memorandum of Opinion and Order
INTRODUCTION
This matter is before the Court upon Defendants' Motion for Summary Judgment (Doc. 18). This case arises out of the termination of plaintiff's employment. For the following reasons, the motion is GRANTED in PART and DENIED in PART.
FACTS
Plaintiff, Cheryl Van Diest, filed this lawsuit against defendants, Deloitte Touche, LLP, Timothy S. Donnellon ("Donnellon") and Sharyn Swedlund ("Swedlund"), following her termination from employment. Donnellon is the Human Resource Manager for defendant's Cleveland office and Swedlund is defendant's Cleveland Office Operation's Manager.
Plaintiff is a Caucasian female over the age of forty. She commenced employment with defendant as a receptionist on August 30, 1999. During all relevant times, defendant employed at least two receptionists, plaintiff and Helena Conacher. Conacher is also a Caucasian female over the age of forty.
References to "defendant" in this opinion refer to Deloitte Touche, LLP. Individual defendants are referred to by name.
During 2001, plaintiff applied and was approved for leave under the Family Medical Leave Act ("FMLA") due to a pre-existing back injury. Two years later, plaintiff received FMLA leave in order to care for her ailing mother. In early 2004, plaintiff applied for and was granted short-term disability and FMLA leave as a result of her back condition. Thereafter, in June of 2004, plaintiff again obtained FMLA leave to care for her mother.
According to defendant, in June of 2004, there arose "an economic need for [the region in which plaintiff worked] to become better aligned with the national standard regarding headcount, dollars and staffing ratios." Ultimately, defendant concluded that two receptionists were not needed to efficiently run the Cleveland office. Defendant claims that it decided to terminate plaintiff and retain Conacher based solely on their performance evaluations. The decision to terminate plaintiff was made by Swedlund, Jane Flowers and Laurie Morton.
Flowers is the Human Resource Manager supporting operations for defendant's North Central Region and Morton was plaintiff's immediate supervisor.
According to plaintiff, she received satisfactory performance reviews up until 2004. In 2004, plaintiff received a score of four out of five, with five being the lowest score. While the evaluation points out several positive aspects of plaintiff's job performance, several negative traits are noted. Specifically, the evaluation provides the following general criticisms,
• She does not think outside the box;
• Needs to be more flexible and receptive to change;
• Sometimes complains about boredom;
• Needs to be more outgoing and friendly with clients;
• Does not speak loudly enough when using the paging system
According to plaintiff, this evaluation was prepared after her termination. It is neither dated nor signed by plaintiff.
In contrast, Conacher, the other receptionist, received a score of two on her 2004 evaluation. Her evaluation is replete with positive comments. In the "overall comments" section, Conacher is described as follows,
In the four years [Conacher] has been with the firm, she has earned the reputation of being one of the most reliable resources on the operations staff. In her capacity as `receptionist' she truly distinguished herself as the `ambassador' to the outside world, managing the front office of Consulting with professionalism, orderliness and enthusiasm. . . .
The evaluation also commends Conacher for being a "team player" and for "juggl[ing] her schedule . . . to meet the needs of the firm when [plaintiff] was out for an extended period of time." This evaluation was signed by defendant on June 18, 2004 and Conacher on July 30, 2004. Defendant further avers that Conacher's evaluations for prior years are superior to those of the plaintiff.
Plaintiff avers that on July 15, 2004, defendant asked her to recreate her work hours and her FMLA papers. On July 29, 2004, Swedlund and Donnellon met with plaintiff and informed her that her position was being eliminated immediately. At the meeting, defendant provided plaintiff with a standard package of documents denoted as a "farewell package." The cover letter indicates that the package contains various forms, including an "Authorization to Provide Employment Information, Release of Claims, and Indemnification Agreement."
According to plaintiff, she became very emotional at the meeting and was asked to sign a separation agreement ("Agreement"). Among other things, the Agreement outlines the rights and responsibilities of the employee upon termination, including such things as return of employer property and continuing confidentiality obligations. The Agreement further indicates that defendant will provide plaintiff with two weeks of pay in lieu of notice and five weeks of salary thereafter. The Agreement does not, however, contain any express waiver of claims. Plaintiff signed the Agreement at the meeting, believing that she would not receive any severance pay if she refused.
Thereafter, plaintiff filed this lawsuit asserting six claims for relief. Count one alleges that plaintiff's employment was terminated in violation of the FMLA and O.R.C. § 4112.02. Count two asserts a claim for age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") and O.R.C. § 4112.02. Count two further appears to assert a violation of the Older Worker Benefit Protection Act ("OWBPA"). Count three appears to reassert an FMLA claim. Count four alleges that plaintiff was discriminated against in violation of O.R.C. § 4112.02 for making internal complaints about a similarly situated employee who was harassing plaintiff. Count five reasserts a claim for violation of the OWBPA and O.R.C. § 4112.02. Count six appears to be a claim for fraudulent inducement.
Defendants move for summary judgment and plaintiff opposes the motion.
STANDARD OF REVIEW
In accordance with Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993). The burden of showing the absence of any such genuine issues of material facts rests with the moving party:
[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrates the absence of a genuine issue of material fact.Celotex, 477 U.S. at 323. A fact is material only if its resolution might affect the outcome of the lawsuit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmoving party pursuant to Federal Rule of Civil Procedure 56(e), which provides:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, 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. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
In ruling upon the motion, the court must afford all reasonable inferences and construe the evidence in the light most favorable to the nonmoving party. Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 150 (6th Cir. 1995); United States v. Hodges X-Ray, Inc., 759 F.2d 557, 562 (6th Cir. 1985). However, summary judgment should be granted if the party bearing the burden of proof at trial does not establish an essential element of its case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. 317).
DISCUSSION
Although the complaint contains individually numbered counts, some claims appear in more than one count. In addition, some counts contain more than one claim. Accordingly, for ease of reference, the Court will address plaintiff's claims by topics as opposed to counts.
In her complaint, plaintiff alleges that she was terminated in violation of the FMLA.
Pursuant to 29 U.S.C. §§ 2612(a)(1)(C) and (D), plaintiff is "entitled to a total of 12 workweeks of leave during any twelve month period . . . in order to care for the . . . parent of the employee [suffering from] a serious health condition . . ." or "because of a serious health condition that makes the employee unable to perform the functions of the position of such employee." "An employer may not retaliate against an employee for taking leave under the FMLA." Spurlock v. Peterbilt Motors Company, Inc., 58 Fed. Appx. 630 (6th Cir. Feb. 19, 2003) (citing 29 U.S.C. § 2615; 29 C.F.R. § 825.220(c)). Where a former employee alleges that she was terminated for exercising her rights under the FMLA, the Court applies a traditional employment discrimination analysis.
In this case, plaintiff does not provide direct evidence in support of her claim. As a result, the McDonnell Douglas burden-shifting analysis applies to plaintiff's FMLA claim. Gibson v. City of Louisville, 336 F.3d 511 (6th Cir. 2003). Thus, plaintiff must first establish a prima facie case by showing
(1) [s]he availed [herself] of a protected right under the FMLA. (2) [s]he was adversely affected by an employment decision . . ., and (3) the proximity in time between [the] request for leave and [the adverse employment action establishes] a causal connection between [her] exercise of a right under the FMLA and the adverse employment decision. Watkins v. Hill's Pet Nutrition, Inc., 63 Fed. Appx. 185 (6th Cir. April 8, 2003) (citing Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001)).
If plaintiff is able to establish a prima facie case, the burden shifts to defendant to articulate a legitimate nondiscriminatory reason for the adverse employment action. Once this burden is satisfied, the burden shifts back to plaintiff, who must then present evidence that the proffered reason was in fact pretext for unlawful discrimination. Gibson, 336 F.3d at 513 ( citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153-54 (2000)). The plaintiff need not prove that discrimination was the sole factor motivating the adverse action. Rather, plaintiff need only demonstrate that it was " a determining and motivating factor." Id. at 514 (emphasis in original).
The Court now turns to whether plaintiff presented sufficient evidence to establish a prima facie case of termination in violation of the FMLA. Defendant does not dispute that plaintiff availed herself of FMLA leave. Nor does defendant dispute that plaintiff's termination constitutes an adverse employment action. Thus, the Court need only decide whether plaintiff satisfies the "causal connection" element required to establish a prima facie case.
"A plaintiff's burden in establishing a prima facie case is not intended to be an onerous one." Hobart v. Behavioral Connections of Wood County, Inc., 2004 WL 1474652 (N.D. Ohio June 17, 2004) (citations and quotations omitted). "The element of causation can be inferred from a number of factors, including the timing of [the discharge] vis-a-vis [the] request for FMLA leave. . . ." Swanson v. Senior Resource Connection, 254 F.Supp.2d 945, n. 5 (S.D. Ohio 2003). Although not expressly couched in terms of the prima facie case, defendant argues that "the significant time gap between plaintiff's exercise of her FMLA rights and the reduction in force issue," belies any casual connection. This Court disagrees. Plaintiff's most recent request for FMLA occurred on June 28, 2004. It is undisputed that plaintiff was terminated one month later. Contrary to defendant's contention, the Court finds that one month does not constitute a "significant gap" for purposes of establishing a prima facie case. Rather, the Court concludes that by demonstrating that she was terminated one month after requesting FMLA leave, plaintiff has presented sufficient evidence to establish a question of fact as to the causal connection element of her prima facie case.
The Court notes that this specific date does not appear in plaintiff's affidavit. Rather, plaintiff simply indicates that she requested leave in 2004. In its motion, defendant indicates that it will "assume for the sake of argument" that certain facts asserted in the complaint are true. One of the facts relied on is the allegation that plaintiff received approved intermittent leave in 2004 to care for her mother. Given defendant's concession, the Court will consider the FMLA form attached to the complaint, which provides the exact date on which the leave commenced.
In response, defendant claims that the reduction in force constitutes a legitimate, nondiscriminatory reason for terminating plaintiff's employment. Plaintiff does not dispute that a reduction in force satisfies defendant's burden in this case. Accordingly, in order to survive defendant's summary judgment motion, plaintiff must present sufficient evidence from which a trier of fact could conclude that defendant's proffered reason is mere pretext for unlawful discrimination.
Plaintiff claims that defendant's reason is mere pretext because all of her past performance reviews indicate that she performed her job well. She further points out that the only negative review relied on by the defendant was prepared after her termination. In fact, plaintiff did not see the review until after this lawsuit was filed. In addition, plaintiff claims that the fact that Conacher received an accolade for "juggl[ing] her schedule . . . to meet the needs of the firm when [plaintiff] was out for an extended period of time" indicates that plaintiff's absences were held against her. Plaintiff further points out that she has more experience than Conacher.
On the other hand, defendant claims that Conacher performed better than plaintiff throughout the years preceding plaintiff's termination. Specifically, defendant's human resource manager avers that Conacher's "performance ratings were consistently higher than the plaintiff's." Defendant further points out that it consistently approved plaintiff's previous requests for FMLA leave, thus negating any inference that defendant engaged in discriminatory conduct.
Upon review of the parties' arguments, the Court finds that there is a question of fact on the issue of pretext. In the context of summary judgment, this Court must view all of the evidence in the light most favorable to plaintiff. As set forth above, plaintiff need only present sufficient evidence from which a jury could conclude that illegal discrimination was a "determining and motivating factor" in plaintiff's termination. Plaintiff need not present evidence that illegal discrimination is the sole reason for her termination. In this case, plaintiff presented evidence that she requested leave under the FMLA shortly before defendant determined that a "reduction in force" was necessary. The reduction in force affected only plaintiff's position. In addition, defendant relies on a negative review that was prepared at or immediately following plaintiff's termination. Defendant claims that Conacher performed "higher" than plaintiff in prior year evaluations, but fails to provide the Court with the actual reviews. In addition, the receptionist defendant retained received commendations due to plaintiff's FMLA leave. This, together with the fact that defendant asked plaintiff to recreate her work hours and FMLA papers two weeks prior to her termination, provides sufficient evidence from which a reasonable juror could conclude that defendant's decision to terminate plaintiff's employment was motivated in part due to plaintiff's exercise of her rights under the FMLA. Accordingly, summary judgment in favor of defendant is not appropriate.
Instead, defendant simply offers the opinion statement from one of its human resource managers who indicates that Conacher's reviews were "consistently higher" than those of the plaintiff. Defendant, however, fails to define "consistently higher" and further fails to indicate whether the same criteria were used to evaluate each employee. As plaintiff points out, she and Conacher were not always in the same department. It appears from plaintiff's affidavit that she spent the majority of her time in the reception department, while Conacher spent her time in the consulting department. Without the benefit of the actual reviews, the Court simply cannot conclude that, as a matter of law, defendant's opinion that Conacher performed "consistently higher" negates any possible pretext argument.
2. Age discrimination claims
Plaintiff also alleges that she was unlawfully terminated in violation of the ADEA and O.R.C. 4112.02. The same McDonnell Douglas burden-shifting analysis described above applies to plaintiffs' claims of age discrimination. Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d, 344, 350 (6th Cir. 1998).
"Under Ohio law, the elements and burden of proof in a state age-discrimination claim parallel the ADEA analysis." King v. Buckeye Rural Elec. Coop., 211 F.3d 1269 (6th Cir. 2000).
To state a prima facie case of age discrimination in a workforce reduction case, a plaintiff must establish by a preponderance of the evidence that: (1) [s]he was forty years old or older; (2) [s]he was qualified for the position; (3) [s]he was discharged; and (4) additional direct, circumstantial, or statistical evidence exists which tends to indicate that the employer singled [her] out for discharge for impermissible reasons. Ercegovich, 154 F.3d at 350. A plaintiff may satisfy the fourth element by demonstrating that "a similarly situated younger employee received more favorable treatment than the plaintiff." Gatch v. Milacron, Inc., 111 Fed. Appx. 785 (6th Cir. Aug. 31, 2004).
Defendant moves for summary judgment on the grounds that plaintiff cannot establish a prima facie case of age discrimination because Conacher was over the age of 40 and less than six years from plaintiff's age. Accordingly, defendant claims that plaintiff cannot establish that she was replaced by someone substantially younger. Plaintiff argues that Conacher and plaintiff differ in age by "5.9 years." Plaintiff further points out that defendant indicated on her evaluations that she did not "think outside the box" and further reprimanded her for a lack of pro-activeness. It appears that plaintiff believes these factors are sufficient to satisfy the fourth element of a prima facie case of age discrimination.
The Court finds that, based on the evidence presented by the parties, the first and third elements are satisfied. As to the second element, defendant does not dispute that plaintiff is qualified for the job. Accordingly, the Court finds that the third element is also satisfied.
Upon review of the evidence presented, the Court finds that plaintiff fails to establish a prima facie case of age discrimination. The only evidence plaintiff points to consists of general and vague remarks contained in her 2004 evaluation. The Court finds that these comments, standing alone, are insufficient to create a genuine issue of material fact as to whether plaintiff was singled out for a reduction in force due to her age.
Moreover, plaintiff fails to provide any evidence that "a similarly situated younger employee received more favorable treatment than the plaintiff." Gatch, 111 Fed. Appx. 785. As an initial matter, the Sixth Circuit has held that, for purposes of establishing a prima facie case for age discrimination in a case in which the plaintiff is replaced, an age difference of six years or less is not significant as a matter of law. See, Grosjean v. First Energy Corp., 349 F.3d 332, 340 (6th Cir. 2003). This same rationale applies in a reduction in force case in which a plaintiff attempts to point to a similarly situated younger employee who received more favorable treatment. In this case, Conacher was chosen to remain as the receptionist over plaintiff. As defendant points out, Conacher, who is over the age of 40, is less than six years younger than plaintiff. As such, plaintiff fails to point to a "younger" employee sufficient to satisfy the fourth prong of the prima facie case and defendant is entitled to summary judgment on plaintiff's age discrimination claim.
3. Disability and retaliation/harassment claims
Although unclear from the complaint, it appears that plaintiff may be claiming that she was discriminated against on the basis of either an actual or perceived disability. Upon review of the parties' briefs, the Court finds that defendant is entitled to summary judgment to the extent plaintiff is asserting a claim for disability discrimination. The sole argument advanced by plaintiff in support of her claim consists of a reference in her 2004 performance evaluation, indicating that plaintiff needs to speak louder when using the paging system. According to plaintiff, she was terminated due to a perceived "speech or hearing" disability. This single comment relied on by plaintiff falls far short of creating a genuine issue of material fact as to whether plaintiff was terminated due to an actual or perceived disability.
In the section in plaintiff's brief discussing disability discrimination, plaintiff makes several other arguments that appear to be related to her age claim.
Similarly, defendant is entitled to summary judgment to the extent plaintiff is alleging a claim for harassment or retaliatory discharge. The only evidence alluded to in support of these "claims" consists of a statement indicating that plaintiff "had complained about Daryl Owens, a former employee in reception, that she was creating a hostile work environment." There is no further discussion or analysis of this issue. Based on the information presented by plaintiff, no reasonable jury could find in favor of plaintiff on either a harassment or retaliatory discharge claim. Accordingly, defendant is entitled to summary judgment on these claims.
4. Separation Agreement claims
Plaintiff alleges that she was fraudulently induced to sign the Agreement. She further alleges that the Agreement violates the OWBPA. Defendant moves for summary judgment on these claims. According to defendant, the Agreement does not contain a waiver of the right to assert claims. As such, the OWBPA does not apply. Alternatively, defendant claims that there is no private right of action under this statute. Rather, non-compliance prevents a party from enforcing a waiver. Defendant points out that it is not seeking to enforce any purported waiver.
Upon review of the Agreement and the relevant law, the Court finds that defendant is entitled to summary judgment on the claims related to the Agreement. Defendant correctly points out that the Agreement does not contain any purported waiver of rights. Moreover, defendant is not attempting to rely on any such waiver. Plaintiff points to no other provision of the OWBPA allegedly violated by defendant. Accordingly, defendant is entitled to summary judgment in its favor.
Similarly, defendant is entitled to summary judgment on plaintiff's claim for fraudulent inducement. The Court agrees with defendant that plaintiff cannot demonstrate any damages in support of her claim. The Agreement obligated defendant to provide plaintiff with severance pay for a period of weeks. The affidavit provided by defendant indicates that this payment is standard regardless of whether any agreement is signed by the terminated employee. Plaintiff does not dispute that she received the monies and fails to point to any loss she incurred as a result of signing the document. Accordingly, defendant is entitled to summary judgment.
5. Individual defendants
The individual defendants argue that they are entitled to summary judgment. This Court agrees. The sole remaining claim consists of alleged violations of the FMLA. Upon a careful review of the amended complaint, the Court finds that plaintiff does not assert any FMLA claim against the individual defendants. Accordingly, summary judgment in their favor is warranted.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is GRANTED in PART and DENIED in PART. Defendants are entitled to summary judgment as to all claims other than the FMLA claim. That claim remains pending only as to defendant Deloitte Touche.
IT IS SO ORDERED.