FARRELL v. TIPP MACHINE TOOL, INC.

Full title: THOMAS FARRELL, et al., Plaintiffs, v. TIPP MACHINE TOOL, INC., Defendant

Court: United States District Court, S.D. Ohio, Western Division

Date published: Sep 26, 2005

Case No. 3:02cv418 (S.D. Ohio Sep. 26, 2005)

Opinion

Case No. 3:02cv418.

September 26, 2005

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. #19); CONFERENCE CALL SET

WALTER RICE, District Judge

Plaintiffs Thomas Farrell ("Farrell"), Donald Siegel ("Siegel") and John Ferris ("Ferris") were formerly employed by Defendant Tipp Machine Tool, Inc. ("Defendant" or "Tipp Machine"). Tipp Machine is engaged in tool and die manufacturing, primarily making products for the aerospace, medical, electronics, fiber optics and beverage can industries. Defendant had employed Farrell and Ferris as inspectors, and Siegel as a surface grinder. The Plaintiffs were laid off by the Defendant in November, 2001, with their employment being terminated 90 days thereafter, since they had not been recalled during the 90-day period after their layoffs. After they had been laid off, but before that 90-day period had expired, the Plaintiffs and others picketed Defendant's place of business, which, according to Plaintiffs, resulted in the Defendant's refusing to recall them. According to the Defendant, the Plaintiffs were laid off and ultimately terminated as part of a reduction in force during which it laid off 22 of its employees. Defendant contends that the genesis of those layoffs was the loss a great deal of work from its three largest customers and the downturn which the tool and die industry generally faced in 2001 and 2002. Disagreeing, the Plaintiffs bring this action, alleging, inter alia, that the Defendant discharged them because of their age.

In their Complaint (Doc. #1), the Plaintiffs set forth five claims for relief, to wit: 1) a claim of age discrimination, alleging that the Defendant discharged them because of their ages in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. (First Claim for Relief); 2) a similar claim predicated upon Chapter 4112 of the Ohio Revised Code ("Chapter 4112") (Second Claim for Relief); 3) a claim of retaliation in violation of Chapter 4112 (Third Claim for Relief); 4) a claim under the common law of Ohio, alleging that the actions underlying the first three claims for relief constituted wrongful discharge in violation the public policy established by Chapter 4112 and the ADEA; and 5) a claim of intentional infliction of emotional distress.

This case is now before the Court on Defendant's Motion for Summary Judgment (Doc. #19). As a means of analysis, the Court will initially set forth the standards which are applicable to all such motions, following which it will turn to the parties' arguments in support of and in opposition to the instant such motion.

Summary judgment must be entered "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). Of course, the moving party:

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 demonstrate the absence of a genuine issue of material fact.

Id. at 323. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6^th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6^th Cir. 1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6^th Cir. 1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed.R.Civ.P. 50). Street v. J.C. Bradford Co., 886 F.2d 1472, 1478 (6^th Cir. 1989).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). See also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6^th Cir. 1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are . . . `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6^th Cir. 1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party.Anderson, 477 U.S. at 255 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the fact-finder. 10A Wright, Miller Kane, Federal Practice and Procedure, § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), "[a] district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Interroyal Corp. v. Sponseller, 889 F.2d 108, 111 (6^th Cir. 1989), cert. denied, 494 U.S. 1091 (1990). See also L.S. Heath Son, Inc. v. ATT Information Systems, Inc., 9 F.3d 561 (7^th Cir. 1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5^th Cir.), cert. denied, 506 U.S. 832 (1992) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment. . . ."). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.

The Defendant has argued that is entitled to summary judgment on all claims set forth by the Plaintiffs in their Complaint (Doc. #1). As a means of analysis, the Court will initially discuss the parties' arguments concerning the Plaintiffs' claims of age discrimination, following which it will turn to their claims of retaliation. Finally, the Court will address the Plaintiffs' claims of wrongful discharge in violation of public policy and intentional infliction of emotional distress.

I. Age Discrimination

As is indicated, the Plaintiffs allege that they were discharged because of their ages, in violation of the ADEA and Chapter 4112. In Godfredson v. Hess Clark, Inc., 173 F.3d 365 (6^th Cir. 1999), the Sixth Circuit reviewed the familiar burden shifting approach established Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which, in the absence of direct evidence of discrimination,¹ is applicable to claims of age discrimination under the ADEA, to wit: 1) the plaintiff initially must establish the elements of a prima facie case of discrimination; 2) if the plaintiff meets that requirement, the burden of production shifts to the defendant to articulate a non-discriminatory reason for taking the employment action in question; and 3) if the defendant meet its burden of production, the burden shifts to the plaintiff to prove, by the preponderance of the evidence, that the defendant's articulated reason is a pretext for discrimination.² Id. at 371. InGodferdson, the Sixth Circuit also reviewed the elements of a prima facie case of age discrimination in a reduction in force case:

[A] plaintiff must first establish a prima facie case by showing that (1) he was a member of the protected class, (2) he was subjected to an adverse employment action, (3) he was qualified for the particular position, and (4) the successful applicant was a substantially younger person. See Bush v. Dictaphone Corp., 161 F.3d 363, 368 (6^th Cir. 1998).

This framework is further modified if a plaintiff is discharged in connection with a reduction of force. In such a case, the plaintiff is not required to plead the fourth prong of the prima facie framework because in a reduction-of-force situation the plaintiff is not in fact replaced. See Scott v. Goodyear Tire Rubber Co., 160 F.3d 1121, 1126 (6^th Cir. 1998). Instead, the plaintiff must present "`additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out [the plaintiff] for discharge for impermissible reasons.'" Id. (quoting Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6^th Cir. 1990)) (brackets in original). If the plaintiff makes out a prima facie case, the burden then shifts to the defendant to produce evidence of a non-discriminatory reason for its action, which will necessarily be the alleged reduction in force. See id.; McDonnell Douglas, 411 U.S. at 802-03. The burden then returns to the plaintiff to demonstrate that the defendant's proffered reason is pretextual. See Scott, 160 F.3d at 1126; McDonnell Douglas, 411 U.S. at 802-03.

Id. Accord Gragg v. Somerset Technical College, 373 F.3d 763, 767-68 (6^th Cir. 2004); Rowan v. Lockheed Martin Energy Systems, Inc., 360 F.3d 544, 547 (6^th Cir. 2004). It bears emphasis that in a typical age discrimination case (i.e., one that does not arise out a reduction in force), in which the plaintiff alleges that he was discharged because of his age, the fourth element of the prima facie case requires proof that he was replaced by a substantially younger person. Id. See also, O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310-13 (1996).

1 Direct evidence of discrimination has been defined as "`evidence that proves the existence of a fact without requiring any inferences.'" Minadeo v. ICI Paints, 398 F.3d 751, 763 (6^th Cir. 2005) (quoting Rowan v. Lockheed Martin Energy Systems, 360 F.3d 544, 548 (6^th Cir. 2004)). Herein, the Plaintiffs seemingly disclaim the ability to establish their claims of discrimination by direct evidence, given the death of Dwight Clark, a former plant superintendent for Defendant, who died before executing an affidavit that Plaintiffs contend would have been direct evidence of discrimination. See Doc. #34 at 10. Nevertheless, the Plaintiffs cite other evidence which they may contend constitutes such direct evidence. Id. at 10-11. Since all of that evidence requires that inferences be drawn before it would support the conclusion that the Plaintiffs were selected to be laid off because of their age, it does not constitute direct evidence of discrimination. For instance, Plaintiffs point out that, during the fourteen months following their layoffs, the Defendant placed a number of advertisements in local newspapers, seeking to hire new employees. Assuming that this activity helps establish that they were chosen to be laid off because of their age, it does so through a series of inferences and, therefore, is not direct evidence of discrimination.

2 Of course, since this litigation comes before the Court on the Defendant's Motion for Summary Judgment (Doc. #19), the Plaintiffs need only raise genuine issues of material fact concerning the elements of their prima facie cases of discrimination and pretext.

As is indicated, if the plaintiff makes out a prima facie case of discrimination, the burden of production shifts to the defendant to articulate a nondiscriminatory reason for taking the adverse employment action. If the defendant meets its burden in that regard, the plaintiff must then establish pretext. In Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078 (6^th Cir. 1994), the Sixth Circuit discussed the methods by which a plaintiff can establish pretext:

To make a submissible case on the credibility of his employer's explanation, the plaintiff is "required to 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 his discharge, or (3) that they were insufficient to motivate discharge." McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7^th Cir. 1993) (emphasis added and quotation marks omitted). The first type of showing is easily recognizable and consists of evidence that the proffered bases for the plaintiff's discharge never happened, i.e., that they are "factually false." [Anderson v.] Baxter Healthcare, 13 F.3d [1120, 1123-24 (7^th Cir. 1994)]. The third showing is also easily recognizable and, ordinarily, consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff. These two types of rebuttals are direct attacks on the credibility of the employer's proffered motivation for firing plaintiff and, if shown, provide an evidentiary basis for what the Supreme Court has termed "a suspicion of mendacity." Hicks, 509 U.S. at [511], 113 S.Ct. at 2749. As Hicks teaches, such a showing permits, but does not require, the factfinder to infer illegal discrimination from the plaintiff's prima facie case.

The second showing, however, is of an entirely different ilk. There, the plaintiff admits the factual basis underlying the employer's proffered explanation and further admits that such conduct could motivate dismissal. The plaintiff's attack on the credibility of the proffered explanation is, instead, an indirect one. In such cases, the plaintiff attempts to indict the credibility of his employer's explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it "more likely than not" that the employer's explanation is a pretext or coverup.

Id. at 1084 (emphasis in the original). Accord Anthony v. BTR Automotive Sealing Systems, Inc., 339 F.3d 506 (6^th Cir. 2003); Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6^th Cir. 2000); Kline v. Tennessee Valley Authority, 128 F.3d 337, 346-47 (6^th Cir. 1997).

The Ohio Supreme Court has held that the McDonnell Douglas framework must be applied when resolving claims of age discrimination under Ohio law. See e. g., Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 175, 803 N.E.2d 781 (2004);Mauzy v. Kelly Services, Inc., 75 Ohio St.3d 578, 664 N.E.2d 1272 (1996); Barker v. Scovill, Inc., 6 Ohio St.3d 146, 451 N.E.2d 807 (1983). Accord Peters v. Lincoln Elec. Co., 285 F.3d 456, 469 (6^th Cir. 2002).

Herein, the Defendant initially argues that the evidence fails to raise a genuine issue of material fact on the fourth element of Plaintiffs' prima facie case of age discrimination. However, before addressing that question, the Court must decide whether this lawsuit actually involves a reduction in force. The Plaintiffs have presented evidence that the Defendant advertised in newspapers for new employees, after it had laid off the Plaintiffs for lack of work. According to the Plaintiffs, those advertisements call into question whether this matter actually involves a reduction in force. For reasons which follow, this Court cannot agree.

In Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6^th Cir.), cert. denied, 489 U.S. 878 (1990), the Sixth Circuit defined a true reduction in force:

It is important to clarify what constitutes a true work force reduction case. A work force reduction situation occurs when business considerations cause an employer to eliminate one or more positions within the company. An employee is not eliminated as part of a work force reduction when he or she is replaced after his or her discharge. However, a person is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff's duties.

Id. at 1465 (citation omitted. Herein, the affidavit of Thomas Martin ("Martin") demonstrates that the Defendant laid off 22 employees in late 2001, as a result of lack of work.³ That affidavit also demonstrates that the tool and die industry as a whole was hit by a loss of work and employment during 2001 and 2002. Many tool and die shops in Southern Ohio shut down during those years. Indeed, Ferris testified during his deposition that he had not bothered to apply for a position with any other tool and die businesses after having been laid off by Defendant, since he had no chance of being hired given the lack of work in the industry as a whole. Ferris Dep. at 59-60. However, attached to Martin's deposition as Exhibit 5 are eight advertisements seeking to hire employees which Defendant placed in local newspapers, between the time Plaintiffs were laid off and the end of 2002, about fourteen months later. The Plaintiffs have failed to point to evidence showing that the Defendant hired new employees as a result of those advertisements and, further, that, if anyone was hired as a result of those advertisements, he performed the duties the Plaintiffs had performed before being laid off. Accordingly, the Court concludes that this case involves a true reduction in force.⁴

3 Martin was Defendant's Vice President and General Manager. He was the person responsible for determining who would be laid off. His affidavit is attached to the Defendant's Motion for Summary Judgment (Doc. #19).

4 Notably, if this litigation did not arise out of a true reduction in force, the Court would conclude that the evidence fails to raise a genuine issue of material fact pertaining to the fourth element of the Plaintiffs' prima facie cases of discrimination, since there is no evidence that any of them was replaced by a substantially younger person or by anyone else, for that matter.

As indicated, the Defendant argues that the evidence fails to raise a genuine issue of material fact on the fourth element of Plaintiffs' prima facie cases of discrimination. In other words, Defendant argues that Plaintiffs have failed to submit additional direct, circumstantial or statistical evidence tending to indicate that it selected them to be laid off because of their ages.⁵ The Plaintiffs have cited numerous pieces of evidence, with which they argue show that they have met their burden in that regard. For reasons which follow, the Court concludes that the evidence cited by the Plaintiffs does not tend to indicate that they were were laid off because of their ages. Therefore, it concludes that this evidence fails to raise a genuine issue of material fact on the fourth element of their prima facie cases of age discrimination.

5 Clearly, the evidence raises a genuine issue of material fact pertaining to the other three elements of Plaintiffs prima facie cases of age discrimination.

The Plaintiffs point to the newspaper advertisements, which are discussed above. The fact that the Defendant placed those advertisements from one to fourteen months after laying off the Plaintiffs does not tend to show that Plaintiffs were selected for such treatment because of their ages. As indicated, Plaintiffs have failed to point to evidence showing that the Defendant hired anyone in response to those advertisements and, further, that, if anyone was hired, he performed the duties the Plaintiffs had performed before being laid off. Moreover, even assuming that Defendant hired one or more new employees, after the Plaintiffs had been laid off, and those newly hired employees performed the Plaintiffs' duties, there is a total lack of evidence as to the ages of any such newly hired employees. In the absence of evidence that newly hired employees performing Plaintiffs' duties were substantially younger, hiring such employees would not tend to show that the Plaintiffs were selected for layoff because of their age.

The Plaintiffs have presented the affidavit of David Reber ("Reber"), who states that he worked for Defendant for five years with his employment ending sometime in 2001. According to Reber, Defendant laid off dozens of workers during his tenure for lack of work, only to replace them within several days. In the absence of an indication that the Defendant used the layoffs which Reber discusses in his affidavit, in order to replace older workers with substantially younger ones, his statement concerning previous layoffs does not tend to suggest that the Plaintiffs were laid off because of their age.

In his affidavit, Reber also states that he heard Dwight Clark ("Clark") tell Ferris that he (Ferris) had been "screwed" out of being placed at the top of the pay rate, because of his age. Ferris also testified during his deposition about similar statements made by Clark. Ferris Dep. at 122. In ruling upon the Defendant's request for summary judgment, the Court does not consider the statements attributed to Clark by Reber in his affidavit and by Ferris in his deposition, since they are hearsay (i.e., out of court statements offered to prove the truth of the matters asserted therein). See e. g., Moore v. Holbrook, 2 F.3d 697, 699 (6^th Cir. 1993) (noting that a court cannot rely upon inadmissible hearsay when ruling on a summary judgment motion). Moreover, although Clark had been a plant superintendent for Defendant and, thus, its agent, there is no indication that he made the statements attributed to him by Reber and Ferris, while in the scope of his agency. See Fed.R.Evid. 801(d)(2)(D).⁶

6 In addition to the foregoing evidence, the Plaintiffs point to statements made by Richard Snell, an owner of Defendant,after they had been laid off. The Court discusses the statements more fully when ruling on the Defendant's motion as it relates to Plaintiffs' claims of retaliation. Snell made those statements in reaction to the Plaintiffs' picketing of Defendant's place of business, during which Plaintiffs charged the Defendant with age discrimination. Although one might argue that Snell's statements evidence an intent by the Defendant to retaliate against Plaintiffs as a result of that picketing, nothing in Snell's statements intimates that the Plaintiffs had been chosen to be among the 22 employees of Defendant to be laid off because of their age.

However, even if the Court were to assume for sake of argument that the evidence raises a genuine issue of material fact on Plaintiffs' prima facie cases of age discrimination, it would conclude that the Defendant has met its burden of production with respect to a nondiscriminatory reason for laying off the Plaintiffs. In his affidavit, Martin states that they were laid off solely because of a lack of work and because their positions were less essential to Defendant's survival than others. Martin also states that the employees who were retained had more skills than the Defendants. For reasons which follow, the Court would conclude that the evidence fails to raise a genuine issue of material fact on pretext and that, therefore, the Defendant is nevertheless entitled to summary judgment on Plaintiffs' age discrimination claims.

In arguing that the evidence raises a genuine issue of material fact on the question of pretext, the Plaintiffs rely upon the statements in Reber's affidavit and the newspaper articles which have been discussed above. Based upon the above reasoning, the Court concludes that neither piece of evidence raises a genuine issue of material fact as to whether Defendant's stated reasons for selecting the Plaintiffs for layoff had no basis in fact or did not actually motivate their layoffs.⁷ Therefore, the Court concludes that the evidence fails to raise a genuine issue of material fact on the question of pretext.

7 The third prong of Manzer, that the employer's stated reason for discharging an employee was insufficient to motivate the discharge an employee, is not applicable in a reduction in force case.

Based upon the foregoing, the Court sustains the Defendant's Motion for Summary Judgment (Doc. #19), as it relates to Plaintiff's claims of age discrimination, the First and Second Claims for Relief in their Complaint (Doc. #1).

II. Retaliation (Third Claim for Relief)

Plaintiffs' claims of retaliation arise out of comments made to Ferris and Farrell by Richard Snell ("Snell"), one of Defendant's owners, in the context of Plaintiffs' picketing of its place of business. After they had been laid off, all Plaintiffs, on at least one occasion, picketed Tipp Machine's place of business, alleging that the Defendant had engaged in age discrimination. While Ferris and Siegel were picketing, Snell drove past them and said to Ferris, according to the latter's deposition: "I really don't think it's going to do you a whole lot of good because we had another person try this and he didn't get anywhere. I don't know if you guys know it or not but we were sued one other time for age discrimination[,] and the guy completely lost the case." Ferris Dep. at 68. During his deposition, Farrell testified that Snell had told him that the Defendant needed to hire an additional inspector and that it was too bad that he (Farrell) had been involved in the anti-discrimination activities, because he would have otherwise been considered for rehiring. Farrell Dep. at 48.

Section 4112.02(I) of the Ohio Revised Code provides that it is an unlawful discriminatory practice:

For any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.

To establish a prima facie case of retaliation in violation of § 4112.02(I), the plaintiff must demonstrate: 1) that he engaged in a protected activity; 2) that the defendant knew that he had engaged in a protected activity; 3) that the defendant took an adverse employment action against him; and 4) that there is a causal link between the protected activity and the adverse employment action. Coch v. Gem Industries, Inc., 2005 WL 1414454 (Ohio App. 2005); Eakin v. Lakeland Glass Co., 2005 WL 161170 (Ohio App. 2005 (quoting Wade v. Knoxville Utils. Bd., 259 F.3d 452, 463 (6^th Cir. 2001)); Edwards v. Dubruiel, 2002 WL 31846259 (Ohio App. 2002) (citing Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6^th Cir. 2000)). Once the plaintiff establishes her prima facie case, the burden shifts to the defendant to articulate a legitimate reason for its action. Id. If the defendant meets its burden, the burden shifts back to the plaintiff to show that the articulated reason was merely pretextual. Coch; Edwards.

Herein, the Defendant argues that the Plaintiffs cannot make out prima facie cases of retaliation.⁸ As an initial matter, the Defendant does not even discuss the comments which Snell made to Farrell, which underlie the retaliation claim of the latter. Construing the evidence concerning those statements in the manner most favorable to Farrell, the Court concludes that the evidence raises a genuine issue of material fact on the elements of Farrell's prima facie case of retaliation. Farrell's picketing, a protest against the Defendant's alleged age discrimination, was protected by the opposition clause of § 4112.02(I); therefore, he had engaged in protected activity. In addition, Snell's statements to Farrell raise issues of fact on the other three elements of his prima facie case of retaliation, to wit: that Defendant, in the person of one of its owners, knew of his picketing; that he suffered an adverse employment action by not being rehired to an inspector position; and that a causal connection existed between the picketing and the failure to be rehired. Since the Defendant has not produced evidence showing that it had a nondiscriminatory reason for not rehiring Farrell, there is no need to consider whether the evidence raises a genuine issue of material fact on the issue of pretext.⁹ Accordingly, the Court overrules the Defendant's Motion for Summary Judgment (Doc. #19), as it relates to Farrell's claim of retaliation in violation of Chapter 4112, part of the Third Claim for Relief in Plaintiffs' Complaint (Doc. #1).

8 Focusing solely upon the comments which Snell directed at Ferris, the Defendant also argues that it is entitled to summary judgment on the retaliation claims of Farrell and Siegel, because Snell directed those comments at Ferris alone. See Doc. #19 at 18. This argument conveniently ignores the fact that Farrell's retaliation claim is based upon the statements Snell made to him, rather than upon the comments of Snell to Ferris. In addition, Siegel was picketing with Ferris when Snell made his comments to the latter. Therefore, construing the evidence in the manner most favorable to Siegel, a party against whom summary judgment is sought, the Court concludes that a jury could find that those comments were directed at Siegel, as well. Accordingly, the Court rejects Defendant's premise that it is entitled to summary judgment on the retaliation claims of Farrell and Siegel, because Snell directed some of his comments at Ferris alone.

9 It is also unnecessary to consider the question of whether Snell's statement constitutes direct evidence of retaliation.

Turning to the retaliation claims of Ferris and Siegel, the Court concludes that the evidence fails to raise a genuine issue of material fact on the third element of their prima facie cases of retaliation, since there is no evidence that either of them, unlike Farrell, suffered an adverse employment action as a result of their picketing.¹⁰ Neither of those Plaintiffs ever applied to be rehired by the Defendant. With respect to the question of whether either of these Plaintiffs suffered an adverse employment action as a result of not being recalled from layoff, the Plaintiffs have presented evidence that the Defendant placed advertisements for some positions after these Plaintiffs had been laid off. However, they have failed to produce evidence showing that the positions for which advertisements had been placed were filled. It would be pure speculation to say that the Plaintiffs suffered an adverse employment action by not being recalled to positions in the absence of evidence that those positions were actually filled.¹¹ Accordingly, the Court sustains the Defendant's Motion for Summary Judgment (Doc. #19), as it relates to the claims of retaliation by Ferris and Siegel, part of the Third Claim for Relief in Plaintiffs' Complaint (Doc. #1).

10 It bears emphasis that the Plaintiffs' picketing occurred after they had been laid off. Therefore, a causal connection could not have existed between that protected activity in which they had engaged and those adverse employment actions.

11 In addition, even if the evidence raised a genuine issue of material fact as to whether Ferris and Siegel suffered adverse employment actions, the Court would conclude that it fails to raise such an issue of fact concerning a causal connection between Snell's comment to Ferris and the adverse employment actions. In his statement to Ferris, Snell did not evidence a retaliatory animus. Rather, he merely reported his opinion that an age discrimination lawsuit would not be beneficial to Ferris.

III. Public Policy (Fourth Claim for Relief)

In its Motion for Summary Judgment (Doc. #19), the Defendant did not request that the Court grant it summary judgment on Plaintiffs' claims that they were wrongfully discharged in violation of public policy, the Fourth Claim for Relief in their Complaint. As a consequence, the Plaintiffs assert in their Memorandum in Opposition to that motion that the Court should not consider any argument concerning those claims the Defendant might raise in its reply memorandum. See Doc. #34 at 16. In its Reply Memorandum, the Defendant argues for the first time that it is entitled to summary judgment on this claim. See Doc. #38 at 15-18. While the Court would normally refuse to address the Defendant's tardily raised argument, it will do so herein for two reasons.First, the Defendant argues that a wrongful discharge claim in violation of public policy is not cognizable, when the public policy is the prohibition against age discrimination and retaliation set forth in the ADEA and Chapter 4112. If the Defendant's argument in that regard is correct, going to trial on the Fourth Claim for Relief would invariably result in the entry of judgment as a matter of law in favor of Defendant on that claim. Under that circumstance, overruling the Defendant's motion as it relates to the Fourth Claim for Relief and proceeding to trial on same would result in the parties and the Court needlessly wasting their resources. Second, in their memorandum, the Plaintiffs anticipated the Defendant's proposition and have presented a contrary argument. See Doc. #34 at 15-16. Therefore, the Defendant's tardiness has not caused any prejudice to the Plaintiffs. Accordingly, the Court turns to the question of whether a wrongful discharge claim in violation of public policy is cognizable under the circumstances alleged herein.

In Ohio, an employee at will may be terminated by his or her employer for any reason, or no reason at all, as long as the termination is not contrary to law.¹² Phung v. Waste Mgt., Inc., 23 Ohio St.3d 100, 102, 491 N.E.2d 1114, 1116 (1986). However, an exception to the employment-at-will doctrine exists where the termination is contrary to the clear public policy of Ohio. Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d 981 (1990). In Collins v. Rizkana, 73 Ohio St.3d 65, 69-70, 652 N.E.2d 653 (1995), the Ohio Supreme Court set forth the four elements which must be established before a public policy exception to the employment-at-will doctrine will be recognized:

12 The Plaintiffs have failed to challenge the conclusion that they were at-will employees.

1. That [a] clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element).

2. That dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy (the jeopardy element).

3. The plaintiff's dismissal was motivated by conduct related to the public policy (the causation element).

4. The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).

Id. at 69-70, 652 N.E.2d at 657-58 (internal quotation marks and citations omitted; brackets and emphasis in the original). The first two issues of that analytical framework are questions of law, while the last two are questions of fact. Id. at 70, 653 N.E.2d at 658.

In Wiles v. Medina Auto Parts, 96 Ohio St.3d 240, 773 N.E.2d 526 (2002), the Ohio Supreme Court addressed the question of whether a party could maintain a wrongful discharge claim in violation of public policy, predicated upon the theory that discharge was in violation of the Family and Medical Leave Act ("FMLA"), 26 U.S.C. § 2601 et seq. The Wiles court focused upon the second prong of such a claim, the jeopardy element. The court indicated that establishing the jeopardy element depended upon whether the absence of such a wrongful discharge claim based solely on a violation of the FMLA "would seriously compromise the Act's statutory objectives by deterring eligible employees from exercising their substantive leave rights." Id. at 244, 773 N.E.2d at 531. The Wiles court answered that inquiry in the negative, since "there is no need to recognize a common-law action for wrongful discharge if there already exists a statutory remedy that adequately protects society's interests." Id. As a consequence, the Ohio Supreme Court concluded that "the public policy expressed in the statute would not be jeopardized by the absence of a common-law wrongful-discharge action in tort[,] because an aggrieved employee has an alternate means of vindicating his or her statutory rights and thereby discouraging an employer from engaging in the unlawful conduct," as a result of the express right of action established by that statute. Id.

Following Wiles, both state and federal courts have held that a common law, wrongful discharge claim, for violating the public policy established by Chapter 4112 and federal employment discrimination statutes, does not exist. For instance, inCarrasco v. NOAMTC, Inc., 2004 WL 2756838 (6^th Cir. 2004), the Sixth Circuit affirmed the District Court's dismissal of the plaintiff's claim of wrongful discharge in violation of the public policy embodied in Chapter 4112 and Title VII, because the remedies available under those statutes adequately protected society's interests. Accord, Lewis v. Fairview Hospital, 156 Ohio App.3d 387, 806 N.E.2d 185 (2004) (refusing to recognize a wrongful discharge claim on the basis of race discrimination in violation of the public policy established by Chapter 4112, because of the adequacy of the remedy established by that statute); James v. Delphi Auto. Sys., 2004 WL 2307825, (Ohio App. 2004) (refusing to recognize a wrongful discharge claim on the basis of race and sex discrimination in violation of the public policy established by Chapter 4112, because of the adequacy of the remedy established by that statute); Barlowe v. AAAA International Driving School, Inc., 2003 WL 22429543 (Ohio App. 2003) (refusing to recognize a wrongful discharge claim on the basis of disability discrimination in violation of the public policy established by Chapter 4112, because of the adequacy of the remedy established by that statute); Storm v. The Sabre Group, 2005 WL 1917357 (S.D.Ohio) (refusing to recognize a wrongful discharge claim on the basis of sex discrimination in violation of the public policy established by Chapter 4112 and Title VII, because of the adequacy of the remedy established by those statutes);Thaman v. Ohiohealth Corp., 2005 WL 1532550 (S.D.Ohio 2005) (same); Satterwhite v. Faurecia Exhaust Systems, Inc., 2005 WL 1279253 (S.D.Ohio 2005) (refusing to recognize a wrongful discharge claim on the basis of race discrimination in violation of the public policy established by Chapter 4112 and Title VII, because of the adequacy of the remedy established by those statutes); Williams v. Allstate Ins. Co., 2005 WL 1315756 (N.D.Ohio 2005) (refusing to recognize a wrongful discharge claim on the basis of age discrimination in violation of the public policy established by Chapter 4112, because of the adequacy of the remedy established by that statute); Curry v. Consolidated Coal Corp., 2005 WL 1159410 (S.D.Ohio 2005) (refusing to recognize a wrongful discharge claim on the basis of age discrimination in violation of the public policy established by Chapter 4112 and the ADEA, because of the adequacy of the remedy established by those statutes). This Court agrees with the foregoing decisions that the remedies provided by state and federal anti-discrimination statutes, herein the ADEA and Chapter 4112, adequately protect the public policy embodied by those statutes, so that the public policy will not be jeopardized by in the absence of a common law claim for wrongful discharge in violation of that policy. In Rice v. CertainTeed Corp., 84 Ohio St.3d 417, 419, 704 N.E.2d 1217, 1219 (1999), the Ohio Supreme Court held that the term "damages" in § 4112.99 of the Ohio Revised Code is "an inclusive term embracing the panoply of legally recognized pecuniary relief," such as compensatory and punitive damages.¹³ Given the breadth of that decision, it is difficult to imagine what remedy would be available in a common law, wrongful discharge action that is not available in an action under Chapter 4112.¹⁴

13 Section 4112.99 provides a private right of action for violations of Chapter 4112.

14 In arguing that they can maintain their wrongful discharge claims notwithstanding Wiles and its progeny, the Plaintiffs rely upon Gessner v. City of Union, 159 Ohio App.3d 43, 823 N.E.2d 1 (2004), wherein the court concluded that a plaintiff may maintain an action for wrongful discharge in violation of the public policy against age discrimination embodied in Chapter 4112. The Gessner court did not identify a remedy which would be available under the common law action that would not also be available under Chapter 4112. This Court follows the decisions inWilliams and Curry, wherein the courts reached the opposite conclusion, since the remedies available for age discrimination claims under Chapter 4112 and the ADEA are not materially different than those available under other employment discrimination statutes. It bears emphasis that this Court is not bound by the decisions of Ohio's intermediate appellate courts.Olsen v. McFaul, 843 F.2d 918, 933 (6^th Cir. 1988). Therefore, there is no basis for holding that a common law claim for wrongful discharge in violation of the public policy embodied in Chapter 4112 and Title VII is not available in light ofWiles, as the Sixth Circuit held in Carrasco, while holding that such a claim is available when the policy is that set forth in Chapter 4112 and the ADEA, merely because the Sixth Circuit decision arose out of allegations of race discrimination and this litigation involves underlying assertions of age discrimination.

Based upon the foregoing, the Court concludes that the Plaintiffs' common law claims of wrongful discharge in violation of public policy are not cognizable, since the public policy allegedly violated is that established by the ADEA and Chapter 4112. Accordingly, the Court sustains Defendant's Motion for Summary Judgment (Doc. #19) as it relates to Plaintiffs' Fourth Claim for Relief.¹⁵ IV. Intentional Infliction of Emotional Distress Fifth Claim for Relief

15 Parenthetically, Ohio courts have held that, when a wrongful discharge in violation of public policy is predicated upon the policy set forth in Chapter 4112, the defendant is entitled to summary judgment on the wrongful discharge, if it is entitled to same on the underlying discrimination or retaliation claim. Vitatoe v. Lawrence Industries, Inc., 153 Ohio App.3d 609, 795 N.E.2d 125 (2003); Cochran v. Columbia Gas of Ohio, Inc., 138 Ohio App.3d 888, 742 N.E.2d 734 (2000). The Court has concluded that the Defendant is entitled to summary judgment on Plaintiffs' claims of age discrimination. Therefore, it would have awarded summary judgment to Defendant on Plaintiffs' common law wrongful discharge claims, predicated upon the allegation that they were victims of age discrimination, thus violating the public policy embodied by the ADEA and Chapter 4112, even if those claims were cognizable.

With their Fifth Claim for Relief, the Plaintiffs allege that the Defendant intentionally inflicted emotional distress upon them by discriminating against them because of their age and by retaliating against them. Doc. #1 at ¶ 44. Plaintiffs assert that the Defendant's actions in that regard have caused them to suffer embarrassment, emotional anguish and loss of reputation and self-esteem. Id. Defendant argues that it is entitled to summary judgment, because the evidence fails to raise a genuine issue of fact on this claim.¹⁶ The Plaintiffs have not opposed that request.

16 In their motion, the Defendant also states that Ohio courts have failed to recognize a claim of negligent infliction of emotional distress in the employment setting. See Doc. #19 at 23 n. 6. That proposition might have been pertinent if the Plaintiffs had included such a claim in their Complaint. However, given that the Plaintiffs have not alleged that the Defendant can be held liable under a negligent infliction of emotional distress theory, it is not necessary to discuss Defendant's contention and that theory further.

In Yeager v. Local Union 20, 6 Ohio St.3d 369, 453 N.E.2d 666 (1983), the Ohio Supreme Court held, in the syllabus:

One who by extreme and outrageous conduct intentionally or recklessly causes serious emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (Bartow v. Smith, 149 Ohio St. 301, 78 N.E.2d 735, overruled.)

Therein, the Ohio Supreme Court elaborated upon what would be deemed to constitute extreme and outrageous conduct:

With respect to the requirement that the conduct alleged be "extreme and outrageous," we find comment d to Section 46 of the Restatement, supra, at 73, to be instructive in describing this standard:

"* * * It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'

"The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. See Magruder, Mental and Emotional Disturbance in the Law of Torts, [49] Harvard Law Review 1033, 1053 (1936). * * *"

Id. at 374-75, 453 N.E.2d at 671-72.

Courts have held that, "under Ohio law, an adverse employment action, even if based upon discrimination, does not amount to extreme and outrageous conduct without proof of something more."Black v. Columbus City Schools, 124 F. Supp.2d 550, 588 (S.D.Ohio 2000). See also, Godfredson, 173 F.3d at 376 (plaintiff who failed to allege any facts beyond those supporting his age discrimination claim did not establish a claim for emotional distress); Cameron v. Bd. of Educ., 795 F. Supp. 228, 238 (S.D.Ohio 1991) (plaintiff's only basis for emotional distress claim, that she "may have been dismissed for discriminatory reasons," was insufficient to establish claim);Hawley v. Dresser Industries, Inc., 737 F. Supp. 445, 469 (S.D.Ohio 1990) ("the mere unjustifiable nature of a termination does not make it extreme and outrageous"), overruled on other grounds, Humphreys v. Bellaire Corp., 966 F.2d 1037, 1042 (6^th Cir. 1992). Herein, the Plaintiffs have failed to argue, let alone to present "proof of something more."

Accordingly, the Court sustains the Defendant's Motion for Summary Judgment (Doc. #19), as it relates to their claims of intentional infliction of emotional distress, the Fifth Claim for Relief in their Complaint (Doc. #1).

Based upon the foregoing, the Court sustains in part and overrules in part the Defendant's Motion for Summary Judgment (Doc. #19). That motion is overruled as it relates to Farrell's claim of retaliation, part of the Third Claim for Relief in Plaintiffs' Complaint. Otherwise, that motion is sustained.

Counsel will note that the Court has scheduled a telephone conference call for Tuesday, October 11, 2005, at 8:30 a.m., for the purpose of selecting a trial and other dates leading to the resolution of Farrell's retaliation claim, the only claim remaining in this litigation.