Vaughn et al v. Titan International Inc.
Memorandum Opinion and Order: Defendants' motion for summary judgment as to Kyle Metz is denied. re 29 Judge Jeffrey J. Helmick on 12/5/2014. (S,AL)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Shirley Vaughn, et al.,
Case No. 3:13 cv 409
Titan International Inc., et al.,
This matter is before me on Defendants’ motion for summary judgment as to the claims
asserted by Plaintiff, Kyle Metz. Also before me is Plaintiff’s opposition and Defendants’ response.
This Court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons that follow, Defendants’
motion is denied.
The following facts are undisputed. Titan Tire Corporation of Bryan, Ohio is engaged in the
manufacture of wheels and tires for off-road equipment. Kyle Metz was employed by Titan Tire as
an hourly employee and was initially assigned to the second shift. Shirley Vaughn was also
employed by Titan Tire as Manager in the Human Resources Department during the following
events. Both Vaughn and Metz began their employment with Titan Tire in February 2012 .
At all times during his employment, Metz was a reservist with the United States Marine
Corps. In September 2012, Metz was promoted to the third shift supervisory position for the South
Side Tire Room, a salaried position. Following his promotion, Metz initially reported to John
Martinez. When Martinez was moved to the North Side Tire Room, Metz’s direct supervisor
became Scott Bernath.
In November 2012, Metz experienced problems in rearranging his schedule to accommodate
a military drill. On November 2, 2012, Vaughn was copied on email correspondence between Metz
and Bernath regarding the November drill schedule. While at his reservist drill, Metz contacted his
military representative, Darryle Johnson, for advice. Metz informed Vaughn of Johnson’s advice on
his rights under the Uniformed Service Employment and Reemployment Rights Act (“USERRA”).
Around this same time, Vaughn had contact with Johnson and advised there was “an issue”
with Metz and the scheduling of his return to work following his reserve duties. Johnson
characterized Metz’s treatment by Bernath and Shane Mack as “harassment.” Mack was a fellow
supervisor in the South Side Tire Room and worked the first shift. According to Vaughn, she met
with Bernath about this issue after seeing the emails. Bernath expressed his displeasure and told
Vaughn to “get rid of him,” referring to Metz. (Doc. No. 32 at p. 148).
Vaughn also contacted Ty Steinman, a paralegal in corporate, to report the military leave
issue and forwarded the Bernath/Metz email. Vaughn requested direction on the military leave
issue. She was provided with materials and advised to train the supervisors on USERRA. She was
also contacted by Cheryl Luthin, the HR person in corporate, and was advised to tell Bernath to
“cease and desist” on this issue. (Id. at pp. 154-55). Vaughn conveyed Luthin’s message to
Bernath. (Id. at 155-56).
Vaughn was ultimately sent USERRA material for training purposes. On December 10,
2012, Vaughn conducted training on the USERRA for the managers prior to the normal morning
meeting. (Id. at p. 141; Doc. No. 36 at p. 19).
At that meeting the managers and Vaughn discussed the upcoming layoff. Approximately
46 of the 50 layoffs involved hourly employees based upon seniority under the collective bargaining
agreement. The remaining 4 employees were chosen by management. Metz was one of four
salaried employees chosen for a layoff and his last day of employment was December 14, 2012.
There is no dispute that Bernath was involved in the decision to select Metz for the layoff (Doc. No.
37, p. 38).
Later that month, Vaughn was also terminated from employment.
On May 5, 2013, Metz and Vaughn filed this lawsuit with each alleging a violation of
USERRA, 38 U.S.C. § 4311. Additionally, Metz alleges discrimination based upon his military
status under 41 O.R.C. § 4112.02(A) (Count Two).
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where “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.” FED. R. CIV. P.
56(a). The moving party 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.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The movant may meet this burden by demonstrating the absence of evidence
supporting one or more essential elements of the non-movant’s claim. Id. at 323-25. Once the
movant meets this burden, the opposing party “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.
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 “simply
[to] 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). Rather, Rule 56(e) “requires the nonmoving party to go
beyond the pleadings” and present some type of evidentiary material in support of its position.
Celotex, 477 U.S. at 324; see also Harris v. General Motors Corp., 201 F.3d 800, 802 (6th Cir. 2000).
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, 477 U.S. at 322.
“In considering a motion for summary judgment, the Court must view the facts and draw all
reasonable inferences therefrom in a light most favorable to the nonmoving party.” Williams
Belknap, 154 F. Supp. 2d 1069, 1071 (E.D. Mich. 2001) (citing 60 Ivy Street Corp. v. Alexander, 822
F.2d 1432, 1435 (6th Cir. 1987)). However, “‘at the summary judgment stage the judge’s function is
not himself to weigh the evidence and determine the truth of the matter,’” Wiley v. U.S., 20 F.3d
222, 227 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 249); therefore, “[t]he Court is not required
or permitted . . . to judge the evidence or make findings of fact.” Williams, 154 F. Supp. 2d at 1071.
The purpose of summary judgment “is not to resolve factual issues, but to determine if there are
genuine issues of fact to be tried.” Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 130 F.
Supp. 2d 928, 930 (S.D. Ohio 1999). Ultimately, this Court must determine “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52; see also Atchley v. RK Co.,
224 F.3d 537, 539 (6th Cir. 2000).
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
As stated above, Metz alleges a violation of USERRA having “been denied his rights to
retention in employment and/or to be free from retaliation for taking action to protect his right to
retention in employment.” (Doc. No. 7, ¶ 49). He also alleges a state law claim of unlawful
discrimination based upon his military status under O.R.C. § 4112.02(A). The Defendants request
summary judgment because his selection for a layoff was due to performance issues without regard
to his military service.
CLAIM UNDER USERRA
In 1994, the Uniformed Services Employment and Reemployment Rights Act (“USERRA”)
was enacted1: “(1) to encourage noncareer service in the uniformed services by eliminating or
minimizing the disadvantages to civilian careers and employment which can result from such service;
(2) to minimize the disruption to the lives of persons performing service in the uniformed services
as well as to their employers, their fellow employees, and their communities, by providing for the
prompt reemployment of such persons upon their completion of such service; and (3) to prohibit
discrimination against such persons because of their service in the uniformed services.” 38 U.S.C. §
The statutory framework under USERRA contemplates causes of action for discrimination
and retaliation under 38 U.S.C. § 43112. The employer is considered to have engaged in prohibited
actions where “the person’s membership, application for membership, service, application for
service, or obligation for service in the uniformed services is a motivating factor in the employer’s
action, unless the employer can provide that the action would have been taken in the absence of
membership, application for membership, service, application for service.” Id. at § 4311(c )(1).
1 USERRA was enacted to replace the Veterans’ Reemployment Rights Act, formerly codified at 38 U.S.C.A. § 20212027, then 38 U.S.C.A. § 4301-4307.
2 An employer is prohibited from discrimination where “such person (1) has taken an action to enforce a protection
afforded any person under this chapter, (2) has testified or otherwise made a statement or in connection with any
proceeding under this chapter, (3) has assisted or otherwise participated in an investigation under this chapter, or (4) has
exercised a right provided for in this chapter.” Id. at § 4311(b).
The plaintiff is required to demonstrate that their “military service was motivating factor in
an adverse employment action.” Hance v. Norfolk Southern Rwy. Co., 571 F.3d 511, 518 (6th Cir. 2009).
“Once the plaintiff has discharged this initial burden of establishing a prima facie case of
discrimination, ‘the employer then has the opportunity to come forward with evidence to show, by a
preponderance of the evidence, that the employer would have taken the adverse action anyway, for a
valid reason.’” Id. citing Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001) (internal
citations omitted). The Sixth Circuit recognizes USERRA to be broadly construed in favor of its
military beneficiaries. Petty v. Metropolitan Government of Nashville-Davidson Co., 538 F.3d 431, 446 (6th
Cir. 2008), cert. denied, 556 U.S. 1165 (2009). See also Coffy v. Republic Steel Corp., 447 U.S. 191, 196
(1980) (noting the liberal construction of the statute which was the predecessor of USERRA).
In considering a claim under USERREA, “[d]iscriminatory motivation may be inferred from
a variety of considerations, including proximity in time between the employee’s military activity and
the adverse employment action, inconsistencies between the employer’s conduct and the proffered
reason for its actions, the employer’s expressed hostility toward military members together with
knowledge of the employee’s military activity, and disparate treatment of certain employees
compared to other employees with similar work records or offenses.” Bobo v. United Parcel Service,
Inc., 665 F.3d 741, 754 (6th Cir. 2012) (citation omitted).
Where a claim of discrimination arises out of a reduction in force and as part of the prima
facie case, a plaintiff is required “to provide ‘additional direct, circumstantial, or statistical evidence
tending to indicate that the employer singled out the plaintiff for discharge for impermissible
reasons.’” Rachells v. Cingular Wireless Employee Services, LLC, 732 F.3d 652, 661 (6th Cir. 2013), citing
Geiger v. Tower, 579 F.3d 614, 622 (6th Cir. 2009).
In this case, Defendants acknowledge Metz’s status as a reservist and his entitlement to
rights under USERRA. They contend he cannot succeed on summary judgment because his
termination from employment was due to a reduction in force, which constitutes termination for
cause. They further maintain his military status was not a motivating factor in that decision. They
also dispute Metz’s actual work schedule was in violation of the requirements under USERRA.
In this instance, Metz asserts his reservist duties were a motivating factor in his discharge.
He cites the testimony of Vaughn who testified Bernath was unhappy with having to accommodate
Metz’s schedule and indicated his desire to see Metz terminated in early November 2012. The
conversation Vaughn had with Metz was prompted by emails between Metz and Bernath regarding
Metz’s reservist duty. Vaughn was copied on these emails. The meeting with Vaughn and Bernath
was, according to Vaughn, in response to an inquiry from Darryle Johnson. Specifically, Vaughn
related her conversation with prior to the usual morning meeting:
We went to Scott Bernath’s office and Scott Bernath is not really happy right
now, so I ask him what the issue is. You know, they summon you into the
office so you’ve got to find out what the issue is.
At which point, he is not happy that there are drills going on for Kyle Metz,
and he—he asked me—he’s like, you need to get rid of him, he’s making a
problem. And I said, do you—do you have documentation for him, is
there—you know, why do I need to get rid of him? And he’s not a team
player. That is what Bernath was telling me. He’s not a team player, he’s
part of the military, he goes to these drills, and there was explicit words in
Some profane words?
Okay. F words?
And tells me—he said he’s not going to deal with it, Metz needs to man up
like everybody else. And I said, he’s got drill and stuff. And he goes, it’s not
my issue, F-ing get rid of him.
And this is on November 9?
More than a month before the USERRA training?
It’s right—it’s before the USERRA training, before it gets heated into a
situation worse than it is.
(Vaughn Dep., Doc. No. 32 at pp. 147-49).
Bernath’s attitude towards Metz was also noticed by another manager, Dennis Skeens:
11. During a morning manager meeting in the late fall of
2012, Scott Bernath expressed frustration and irritation about the
scheduling burden created by an employee who was a member of the
military and who attended drill on weekends.
12. Bernath stated that his department was having scheduling
issues because one of his supervisors was claiming he was required to
attend military drill that weekend.
13. Bernath then stated that he was going to make the
supervisor come to work Sunday night when he returned from drill.
14. Bernath claimed that the supervisor would technically be
working Monday, since most of his work shift would be in the early
morning hours of Monday.
15. I spoke up and said he could not do that, because
although Titan considers this to be Monday, it is still Sunday and the
supervisor would need sleep before returning to work.
16. I explained that it was my understanding that members
of the military are entitled to a break between drill and work.
17. It appeared to me that Scott Bernath did not care about
the supervisor’s military rights, and was inflexible about changing the
18. During this same meeting, in response to Scott Bernath’s
opposition, Sam Vaughn interjected and said that the law protects
employees who are members of the military and attend drill and that
Bernath must follow the law even if he didn’t agree with it.
19. Bernath acted very irritated by the supervisor’s drill
obligation and was adamant that Titan could make him work that
same night, immediately after returning home from drill.
20. Ms. Vaughn and I were the only two people that stood
up for Kyle Metz and told Bernath that Metz should not have to
report directly to work following his military drill.
21. Throughout my employment with Titan, there was a
perception by some managers that employees who were members of
the military used drill as an excuse to avoid having to work. I never
understood the basis for, and disagreed with this perception.
(Skeens Decl., pp. 1-2).
The problems between Metz and Bernath began on November 2, 2012, as demonstrated by
the emails regarding scheduling and Vaughn was copied on these emails. Bernath’s irritation with
the situation is exemplified in the conversation he has with Vaughn approximately a week later. This
is sufficient to constitute evidence that Metz’s military service was a motivating factor in the adverse
employment action. See Grosjean v. FirstEnergy, 481 F. Supp. 2d 878, 886 (N.D. Ohio 2007).
However, as this is a reduction in force case, Metz must provide evidence which supports
the Defendants singled him out for discharge based upon impermissible reasons. Rachells, supra.
The emails critical of his job performance began on November 7, 2012, and the last one was
sent on December 5, 2012. They are characterized by Defendants as “critical of his [Metz’s] job
performance as Tire Room Supervisor.” (Def’s Mot. At p. 9):
Email of Nov. 7, 2012 from Shane Mack to Kyle Metz and Timothy
Routzon, with a copy to Scott Bernath:
We have a grievance for Bernie Harvey doing utility work and Larry
King wants paid for the 4 hour block. Kyle, this happened on 3rd
shift when you opened up a utility spot for the over time guys. From
now on do not use over time tire builders to do utility work. Use a
guy on straight time. We can back fill but we cannot use someone
who is on over time.
(Doc. No. 29-2).
Email of Nov. 13, 2012 from Shane Mack to Kyle Metz and Timothy
Routzon, with a copy to Scott Bernath:
Kyle, there is [sic] 3 skids of 5568 in the noncomforming area outside
the tire room office. Once of them has your initials on it and the [sic]
another one has Zack 5chaffners [sic] initials on it. The third one has
nothing on it but a date. Have your light duty guys fix this and go
over it with the small radial treaders that the skids have to linered,
weighed, dated and signed off by you and the builder or servicer.
(Doc. No. 29-3).
Email of Nov. 13, 2012 from Shane Mack to Kyle Metz, with a copy
to Scott Bernath:
Kyle on my sheet and in the book you put no wire for the 36067.
We have had wire all day and I did not know this. If we are out of
something make sure you look.
(Doc. No. 29-4).
Email of Nov. 14, 2012 from Shane Mack to Kyle Metz and Timothy
Routzon, with a copy to Scott Bernath:
The non conforming area needs cleaned out at the end of every shift.
There should not be anything left in there without a red tag on it.
The only thing that should be left in this area is if it is waiting to be
checked by tire engineering, and a email should be sent to all the
supervisors so we know what is going on with it. This area is
becoming a catch all and it needs to stop.
(Doc. No. 29-5).
Email of Nov. 14, 2012 from Shane Mack to Kyle Metz, with a copy
to Scott Bernath:
Kyle, we need to try to do everything possible to keep all the
machines running. Such as TBM#28 was sitting idle with no body
bands for the 133 and all you had to do was reset to the 169 and start
building. Also the cocked bead on the TBM#30 when I called Brian
S. he did not know anything about it. You need to get all the tires on
the QA hold taken care of as soon as possible. If you have to call
Brian at home do so.
(Doc. No. 29-6).
The final email chain was in response to an inquiry on the weekly supervisor safety checklist.
Email of December 5, 2012 at 10:01 a.m. from Scott Bernath to
Shane Mack, John Martinez, Dan Melton, Kyle Metz, Bob Mohre,
Phillip Norton, Timothy Routzon, Joe Wohlgamuth:
Kyle, have you been instructed this needs to be done on a
weekly basis? Please response.
North side has a lot of work to do.
(Doc. No. 29-7).
Email Response from Kyle Metz to Scott Bernath, December 5, 2012
at 10:07 p.m.:
No I have not 4 crew I thought did it.
Email response from Scott Bernath to Kyle Metz, December 6, 2012
at 6:40 a.m.:
North side is north side, please [sic] make sure you are doing
a weekly tour from this point on.
These emails were not placed in Metz’s personnel file nor was he subject to discipline as a result of
Metz participated in reservist duty again in December 2012. While at the drill, on Sunday,
December 9, 2012, Metz emailed Bernath to advise him that he would not be released early from
his drill and would not return home until 8:30 p.m. As Metz was slated to begin his regular shift at
10:00 p.m. that same evening, he wanted direction from Bernath as to when he needed to report.
The next day, after getting materials from her superiors in corporate, Vaughn conducted
training for the managers on USERRA. The managers present at that training included, among
others, Bernath. At the training, Bernath asked if the training was related to Metz and his reservist
drills. (Vaughn Dep., p. 297-98; Bernath Dep., pp. 21-22).
Contemporaneous with the training at the morning meeting, Keith Reilly, the operations
manager continued discussions to determine which supervisors would be subject to the cuts. (Id. at
pp. 170-173). Four names were discussed, one of which was Kyle Metz. Bernath testified that he
was involved in the decision to select Metz for the layoff. (Bernath Dep., pp. 37-38). According to
Bernath, he chose Metz because he was the “[n]ewest supervisor, lowest performer.” (Id.) Reilly
corroborated Bernath’s discussion of Metz’s performance, characterizing it as “he’s [Metz]
struggling, he’s not making it.” (Reilly Dep., p. 30).
Vaughn protested over two of the four persons named for the layoffs, one of whom was a
veteran and the other, Metz, who was a reservist. She testified she was pressured by Reilly to
process the documents to implement the layoff but her reluctance regarding Metz was because there
was no documentation to support his termination. (Vaughn Dep., p. 189). After speaking with
Defendants’ general counsel, on December 14, 2012, Vaughn notified Metz of the layoff. The layoff
was ultimately a permanent termination.
Also, according to Vaughn’s testimony, the directive on the second layoff was the subject of
discussions which began in early November. (Vaughn Dep., pp. 81-85). By the December
meeting, at which Vaughn conducted training on USERRA, discussions continued as to which four
supervisors would be laid off. Bernath again proposed Metz for layoff stating it was based upon his
job performance. At this time, Metz had no record of disciplinary action in his personnel file.
The span of time between the initial email exchange regarding Metz’s reservist duty
impacting his reporting for work, under Bernath, to Metz’s termination was forty-two days. There is
nothing to indicate Metz had problems initially as a supervisor under John Martinez. Only after
Metz began reporting to Bernath and served reservist duty did problems begin to surface. Taken as
a whole, the events during this period provide a circumstantial basis to support Metz was singled out
for discharge based upon his military status.
The burden then shifts to the employer to show, by a preponderance of the evidence, that
Defendants would have taken the adverse action for a valid reason. As I must broadly construe
USERRA in favor of the Plaintiff, I find that reasonable minds could differ on whether Metz was
terminated for valid performance reasons or singled out by Bernath because of his military status.
See Mullins v. Goodman Distribution, Inc., 694 F. Supp. 2d 782, 789 (S.D. Ohio 2010).
Finally, as noted by the Defendant, because a determination on a violation under USERRA
falls along the same lines as the analysis for determination of discrimination under the Ohio statute,
R.C. § 4112.02(A), the state law claim also remains viable.
Based upon the foregoing, Defendants’ motion for summary judgment as to Kyle Metz
(Doc. No. 29) is denied.
s/ Jeffrey J. Helmick
United States District Judge
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