Equal Employment Opportunity Commission v. DuneCraft, Inc.
Filing
26
Opinion and Order signed by Judge James S. Gwin on 5/4/15 denying DuneCraft Inc.'s 21 motion for summary judgment. (S,HR)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
EQUAL EMPLOYMENT OPPORTUNITY :
COMMISSION,
:
:
Plaintiff,
:
:
v.
:
:
DUNECRAFT, INC.,
:
:
Defendant.
:
:
-------------------------------------------------------
CASE NO. 1:14-CV-02011
OPINION AND ORDER
[Resolving Doc. 21]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff the Equal Employment Opportunity Commission (“EEOC”) alleges that Defendant
DuneCraft, Inc. (“DuneCraft”) discriminated and retaliated against its former employee, Kevin
Marken, in violation of the Age Discrimination in Employment Act (“ADEA”).1/ DuneCraft moves
for summary judgment on all claims.2/ For the following reasons, DuneCraft’s motion is DENIED.
I. Background
The EEOC is charged with enforcing the ADEA.3/ It brings three claims against DuneCraft,
an Ohio-based company that makes terrariums and other science-theme toys. Marken, the charging
party, was a logistics and accounting manager for DuneCraft from May 1, 2009, to October 4, 2012.
Marken was 49 when he started at DuneCraft and 52 when he was fired.4/
The EEOC alleges that Grant Cleveland, DuneCraft’s owner and CEO, frequently and
1/
Doc. 1. See 29 U.S.C.§ 626(b).
Doc. 21.
3/
29 U.S.C.§ 626(b). DuneCraft admits that it is an employer engaged in an industry affecting interstate
commerce and is thus covered by the ADEA. Doc. 8 at 2.
4/
Doc. 1.
2/
-1-
Case No. 1:14-CV-02011
Gwin, J.
publicly ridiculed Marken with age-based criticism. As a result, the EEOC first alleges that
Cleveland subjected Marken to a hostile work environment based on Marken’s age in violation of
Section 4(a)(1) of the ADEA.5/ Second, the EEOC alleges that Marken was eventually fired because
of his age, also in violation of Section 4(a)(1). Third, the EEOC alleges that DuneCraft violated the
anti-retaliation provision of the ADEA6/ because it fired Marken for complaining about age-based
harassment.7/
DuneCraft repeatedly asserts that “[t]here is no evidence that Marken was ever subjected to
age-related harassment.”8/ But the EEOC submits affidavits and deposition testimony to the contrary.
Joe Ploskonka, a former Shipping Logistics manager at DuneCraft, states in an affidavit that
between 2008 and 2011, “Cleveland regularly belittled Marken, calling him ‘old and slow’” within
the earshot of half a dozen employees. According to Ploskonka, Cleveland regularly told Marken he
worked too slowly because of his age. Ploskonka says Marken was a diligent and effective worker.9/
Cleveland’s former Executive Assistant, Amber Scarsella, states that between 2009 and 2010,
Cleveland consistently made derogatory comments to Marken about his age and called him “the old
man” during staff meetings. Further, Cleveland once told Scarsella that he paid Marken less than a
comparable employee to induce Marken to quit, “because [Marken] is an old man and doesn’t fit into
5/
29 U.S.C. § 623(a)(1) (“It shall be unlawful for an employer--(1) to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age.”).
6/
29 U.S.C. § 623(d) (“It shall be unlawful for an employer to discriminate against any of his employees or
applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization
to discriminate against any member thereof or applicant for membership, because such individual, member or applicant
for membership has opposed any practice made unlawful by this section.”).
7/
Doc. 1 at 3-6.
8/
Doc. 21 at 10.
9/
Doc 22-8.
-2-
Case No. 1:14-CV-02011
Gwin, J.
what [I] want in [my] office.” Scarsella also praises Marken’s work output and work ethic.10/
Danielle Calabrese, another Executive Assistant to Cleveland, submits an affidavit with
similar facts. She adds: “At least a dozen times I heard Cleveland state, in reference to Marken, that
he was ‘getting closer and closer to firing the old guy.’” Cleveland allegedly told Calabrese not to
interview new candidates for DuneCraft unless they were twenty-one to twenty-seven years old.11/
In his deposition, Marken says that Cleveland repeatedly made derogatory comments to him
about his age, calling him “old and slow,” “old man,” and “the slow guy.” Cleveland allegedly told
Marken he would need a retirement account, as he would probably be retiring soon. Marken says he
repeatedly complained to Cleveland about these comments, and asked Cleveland to stop.12/
Cleveland vehemently denies ever making derogatory comments to Marken.13/ DuneCraft
submits affidavits from Cleveland and others in support of this argument. DuneCraft maintains that
Marken was fired because he worked poorly with others, received poor work evaluations, and racked
up avoidable fines for late deliveries of DuneCraft products.14/ In support, DuneCraft points to a
November 2011 written warning Marken received detailing his poor work performance.15/
Additionally, DuneCraft points to first quarter reviews for 2012, in which Marken received the
lowest score of any DuneCraft employee.16/
DuneCraft’s former Operations Manager, Andrew Johnson, alleges that on October 3, 2012,
10/
Doc. 22-9.
Doc. 22-10.
12/
Doc. 22-4 at 10-13.
13/
Doc. 21-9; Doc. 21-11.
14/
For a list of reasons for Marken’s termination (delivered to Marken on October 30, 2011) see Doc. 21-1.
15/
Doc. 21-3.
16/
Doc. 21-4.
11/
-3-
Case No. 1:14-CV-02011
Gwin, J.
Marken attempted to “sabotage” the company.17/ Marken allegedly knew that DuneCraft did not have
enough inventory to fill an upcoming order, but deliberately withheld that information until it was
too late to ship the order on time.
That evening, Johnson says he called Cleveland, who was away on a business trip, to discuss
the matter. Cleveland told him, “You’re in charge . . . you make the decision on what to do.”18/ The
next day, October 4, 2012, Johnson told Marken he was fired while Cleveland was still out of the
office.19/ Johnson says he made the decision to fire Marken alone, though he had Cleveland’s
authorization to do so.20/ Johnson wrote up a report about the sabotage episode, but not until several
weeks after Marken left DuneCraft.21/
Marken apparently did not believe Johnson had the authority to fire him, so the two called
Cleveland. Cleveland heard Johnson and Marken argue over who was to blame.22/ Cleveland
concluded that Johnson was “negligent” in not ensuring inventory was ready, but characterized
Marken’s conduct as “sabotage.”23/
Marken pleaded with Cleveland not to be terminated.24/ According to Cleveland, “Kevin
wanted to know if he was really fired, and I said yeah, you’re really fired.”25/ Cleveland explained
that between June and October 2012, Marken’s performance continued to deteriorate on a daily
17/
Doc. 21-10.
Doc. 22-3 at 8.
19/
Doc. 22-2 at 20.
20/
Doc. 22-3 at 8.
21/
Doc. 21-8.
22/
Doc. 21-2 at 230.
23/
Doc. 22-2 at 17.
24/
Doc. 21-2 at 230.
25/
Id.
18/
-4-
Case No. 1:14-CV-02011
Gwin, J.
basis, culminating in his termination.26/
DuneCraft maintains that the Court should strike the affidavits that the EEOC has used to
oppose summary judgment because they would not be admissible at trial.27/ But “because the burden
of proving that there is no genuine issue of material fact rests on the moving party, the opposing
party is entitled to all of the favorable inferences that reasonably may be drawn from the papers
before the court.”28/
DuneCraft, seemingly at random, labels various statements as “irrelevant, improper, and
heasay.”29/ Yet sworn testimony about what DuneCraft employees observed during their employment
would be admissible at trial.30/ Statements from a party opponent namely Cleveland, as CEO and
representative of DuneCraft
are not hearsay and are also admissible.31/ The affidavits set forth
“more than rumors, conclusory allegations and subjective beliefs,” so the Court can consider them
in ruling on summary judgment.32/
Some of the affidavits contain irrelevant information about Cleveland’s behavior and have
no clear connection to the allegations of age discrimination. But the Court will not strike entire
affidavits simply because some information in them is extraneous. DuneCraft generally questions
the motivations and knowledge of the affiants. But these arguments go to the weight of the evidence
offered, not to its admissibility. The Court will not ignore the affidavits simply because DuneCraft
believes the allegations in them are untrue.
26/
Doc. 22-2 at 14.
Doc. 23 at 5.
28/
10B Charles Alan Wright & Arthur A. Miller, Federal Practice & Procedure, § 2738 (3d ed.).
29/
Doc. 23 at 5.
30/
Fed. R. Evid. 602.
31/
Fed. R. Evid. 801(d)((2)(A).
32/
Mitchell v. Toledo Hosp., 964 F.2d 577, 585 (6th Cir. 1992).
27/
-5-
Case No. 1:14-CV-02011
Gwin, J.
II. Legal Standards
Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”33/ The moving party must first demonstrate that there is an absence of a genuine
dispute as to a material fact entitling it to judgment.34/ Once the moving party has done so, the nonmoving party must set forth specific facts in the record
pleadings
not its allegations or denials in
showing a triable issue.35/ The existence of some doubt as to the material facts is
insufficient to defeat a motion for summary judgment.36/ But the Court views the facts and all
reasonable inferences from those facts in favor of the non-moving party.37/
III. Analysis
A. Hostile Work Environment
“[A] plaintiff may advance a hostile-environment claim under the ADEA.”38/ To establish
the prima facie case for such a claim, an employee must demonstrate “1. The employee is 40 years
old or older; 2. The employee was subjected to harassment, either through words or actions, based
on age; 3. The harassment had the effect of unreasonably interfering with the employee’s work
performance and creating an objectively intimidating, hostile, or offensive work environment; and
33/
Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
35/
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
36/
Id. at 586.
37/
Coble v. City of White House, Tenn., 634 F.3d 865, 868–69 (6th Cir. 2011) (citing Scott v. Harris, 550 U.S.
372 (2007)).
38/
Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834 (6th Cir. 1996).
34/
-6-
Case No. 1:14-CV-02011
Gwin, J.
4. There exists some basis for liability on the part of the employer.”39/
DuneCraft argues that Marken was never subjected to any age-based harassment. But
Marken’s deposition and the supporting affidavits could convince a reasonable jury that he was.
DuneCraft next argues that the alleged comments are too abstract, ambiguous, and isolated to
constitute a hostile work environment. But Marken alleges he endured direct and demeaning
comments about his age on a regular basis for a term of years.40/ A reasonable jury could thus believe
that Marken’s workplace was “permeated with ‘discriminatory intimidation, ridicule or insult’
sufficiently severe or pervasive to alter the conditions of employment.”41/
Finally, DuneCraft argues that the comments, even if actually made, had no negative effect
on Marken’s ability to work. Marken’s deposition contradicts this assertion. Marken states that his
treatment at Cleveland’s hands “was very stressful, it was hurtful, it slowed me down in my work.
I know that I probably made mistakes based on how he would get on me . . . .”42/
A reasonable jury could believe Marken was subjected to a hostile work environment. Thus,
DuneCraft’s motion for summary judgment on this claim is DENIED.
B. Age-Based Termination
The EEOC says circumstantial evidence proves Marken was fired because of his age. “To
set forth a prima facie case of age discrimination using circumstantial evidence, a plaintiff must
establish the four elements of the well-known McDonnell Douglas test: 1) that he was a member of
39/
Id. at 834-35.
Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir. 1993) (“Age-related comments referring directly to
the worker may support an inference of age discrimination.”).
41/
Hawkins v. Anheuser Busch, Inc., 517 F.3d 321, 333 (6th Cir. 2008) (quoting Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 65 (1986)).
42/
Doc. 21-4 at 20.
40/
-7-
Case No. 1:14-CV-02011
Gwin, J.
a protected class; 2) that he was discharged; 3) that he was qualified for the position held; and 4) that
he was replaced by someone outside of the protected class.”43/
DuneCraft argues that Marken did not remain qualified for his position.44/ DuneCraft points
to Marken’s written warnings and low ratings on performance reviews. Marken counters that he was
recruited for the job with DuneCraft and has worked in the relevant industry since 1995. Some
affidavits label Marken as incompetent; others describe him as a hard worker and effective team
member. A jury, not the Court, should decide which account is more credible. For the purposes of
surviving summary judgment, Marken satisfies the lenient standard of demonstrating that he was at
least qualified for his job.45/
Marken was fired and was over forty at the time. Additionally, a younger person replaced
Marken. DuneCraft employee Fithriana Lestari states that she took over Marken’s position when she
was thirty-one years old.46/ Marken has thus made a out prima facie case.
Thus, “the burden of production shifts to the employer to articulate a legitimate
nondiscriminatory reason for the adverse employment action. If the employer meets this burden, the
burden of production shifts back to the plaintiff to show that the employer’s explanation was a mere
pretext for intentional age discrimination.”47/ DuneCraft meets its burden, as it provides a litany of
reasons for firing Marken that are unrelated to age. DuneCraft maintains Marken worked poorly with
43/
Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009).
Doc. 21 at 8.
45/
Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 575 76 (6th Cir. 2003) (““The prima facie burden of
showing that a plaintiff is qualified can therefore be met by presenting credible evidence that his or her qualifications
are at least equivalent to the minimum objective criteria required for employment in the relevant field.”).
46/
Doc. 22-7 at 4.
47/
Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 264 (6th Cir. 2010) (internal citation
omitted).
44/
-8-
Case No. 1:14-CV-02011
Gwin, J.
others, did not improve his work after warnings, and cost the company tens of thousands of dollars
in fines for late shipping.48/
In response, “[a] plaintiff can demonstrate pretext by showing that the proffered
reason . . . did not actually motivate the defendant’s challenged conduct.”49/ The alleged frequency
and specificity of Cleveland’s age-related comments provide evidence that Marken’s age, not his
work performance, may have actually motivated the firing. However, DuneCraft maintains that
Johnson, not Cleveland, actually fired Marken. DuneCraft says Johnson was the relevant decision
maker for Marken’s termination, making Cleveland’s alleged comments irrelevant.
But Cleveland was directly involved in Marken’s termination. Cleveland spoke to Johnson
about Marken on October 3, 2012, and spoke to Marken and Johnson together the following day.
Cleveland heard Marken try to defend himself and plead for his job. Cleveland told Marken that he
was, in fact, fired. The facts surrounding exactly how Marken was terminated are contested and
convoluted. Cleveland was certainly “connected with the decision[] to demote or terminate”
Marken.50/ A reasonable jury could find that Cleveland, as CEO, made Marken’s firing official. Thus,
DuneCraft’s argument that Johnson acted completely alone in firing Marken is unavailing.
Further, evidence exists to support a jury finding that the reasons for firing Marken were
pretextual. Allegedly, Cleveland said at least a dozen times he was “getting closer and closer to firing
the old guy [Marken].” Cleveland allegedly called Marken a “useless old man who doesn’t listen to
anything and is constantly screwing up,” and blamed Marken for mistakes because he was “old and
48/
Doc. 21 at 9.
Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000).
50/
Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998).
49/
-9-
Case No. 1:14-CV-02011
Gwin, J.
losing his memory.” 51/ Cleveland referred to Marken as a failed experiment in hiring an old person,
and that people over forty were “too hard to manage” and “too hard to mold.”52/ When taken as a
whole, a reasonable jury could believe that the stated reasons for firing Marken served to mask agebased discrimination.53/
Furthermore, inconsistent accounts regarding Marken’s firing provide additional evidence
of pretext.54/ On October 5, 2012, just a day after Marken was fired, Cleveland wrote Marken a letter
of recommendation in which he praised Marken’s work ethic, attention to detail, and his efforts
which “sav[ed] the company thousands of dollars.”55/
But several weeks later, on October 30, 2012, Cleveland sent Marken a private memo
detailing numerous shortcomings that caused him to be fired. The comment “Not shipping all orders
that could have been shipped,” is starred on the page. However, the alleged October 3, 2012,
sabotage incident is not mentioned.56/ In his deposition, Cleveland states that Marken was fired for
the sabotage incident.57/ But in moving for summary judgment, DuneCraft maintains that there were
thirteen independent reasons for Marken’s termination.58/ A reasonable jury could find evidence of
pretext based on perceived conflict between these explanations.
51/
Doc. 22-9.
Doc. 22-10.
53/
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 355-56 (6th Cir. 1998) (“Moreover, when
assessing the relevancy of an allegedly biased remark where the plaintiff presents evidence of multiple discriminatory
remarks or other evidence of pretext, we do not view each discriminatory remark in isolation, but are mindful that the
remarks buttress one another as well as any other pretextual evidence supporting an inference of discriminatory
animus.”).
54/
Cicero v. Borg Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir. 2002) (“Shifting justifications over time calls
the credibility of those justifications into question.”).
55/
Doc. 22-12.
56/
Doc. 21-1.
57/
Doc. 22-2 at 20.
58/
Doc. 21 at 4.
52/
-10-
Case No. 1:14-CV-02011
Gwin, J.
Overall, the EEOC could convince a reasonable jury that DuneCraft’s proffered reasons for
firing Marken were pretextual. Therefore, DuneCraft’s motion for summary judgment on the
termination claim is DENIED.
C. Retaliatory Termination
The EEOC further alleges that Marken was terminated because he complained to Cleveland
and asked him to stop the age-based harassment. To make a prima facie case for retaliation, the
EEOC must show “(1) that [Marken] engaged in a protected activity; (2) that the defendant had
knowledge of [Marken’s] protected conduct; (3) that the defendant took an adverse employment
action towards [Marken]; and (4) that there was a causal connection between the protected activity
and the adverse employment action.”59/ “The burden of establishing a prima facie case in a retaliation
action is not onerous, but one easily met.”60/
DuneCraft asserts that “there is no evidence to support Marken’s claim that he engaged in
protected activity. Marken never complained about unwelcome age-related comments.”61/ But
Marken, in his deposition, says that he complained about the comments directly to Cleveland during
a June 2012 performance review, and renewed his verbal complaints a few times a month until he
was fired.62/ This sworn statement is evidence in and of itself. It creates a genuine issue of material
fact as to whether such complaints occurred.
DuneCraft next argues that no causal connection exists between Marken’s complaints and
59/
Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 523 (6th Cir. 2008) (quoting Weigel v. Baptist Hosp. of E.
Tenn., 302 F.3d 367, 381 (6th Cir. 2002)).
60/
Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
61/
Doc. 21 at 15.
62/
Doc. 22-4 at 15-17.
-11-
Case No. 1:14-CV-02011
Gwin, J.
his firing. It again says Johnson, not Cleveland, actually fired Marken, and asserts that Johnson did
not know about Marken’s complaints.63/ As explained above, Cleveland was directly involved in
Marken’s firing. Marken says he regularly complained to Cleveland in the weeks leading up to his
termination. Cleveland’s alleged earlier statement that he was getting closer and closer to firing
Marken provide an indication of potential retaliatory conduct. The EEOC shows a plausible causal
connection between Marken’s complaints and his firing.64/ The prima facie case for ADEA
retaliation is therefore satisfied.
Thus, DuneCraft’s motion for summary judgment on the retaliation claim is DENIED.
IV. Conclusion
For the reasons above, the Court DENIES, in full, DuneCraft’s motion for summary
judgment.
IT IS SO ORDERED.
Dated: May 4, 2015
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
63/
Doc. 23 at 11-13.
Mickey v. Zeidler, 516 F.3d at 525 (“Where an adverse employment action occurs very close in time after
an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute
evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation. But where some time
elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the
employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality.”).
64/
-12-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?