London et al v. Youngstown Ohio Hospital Company, LLC

Filing 36

Memorandum Opinion and Order: The motion of defendant, Youngstown Ohio Hospital Company, LLC, dba Valleycare Health System, dba Northside Medical Center, for summary judgment is granted; plaintiff's amended complaint is dismissed in its entirety with prejudice; judgment shall be entered in favor of defendant (Related documents 1 and 26 ). Signed by Magistrate Judge George J. Limbert on 11/9/17. (S,AA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

BEVERLY LONDON, et al.,
Plaintiffs,
v.
YOUNGSTOWN OHIO HOSPITAL
COMPANY, LLC. dba VALLEYCARE
HEALTH SYSTEM dba NORTHSIDE
MEDICAL CENTER,
Defendant.

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CASE NO. 4:16CV2327
MAGISTRATE JUDGE
GEORGE J. LIMBERT
MEMORANDUM OPINION & ORDER

The instant matter is before the Court on a motion for summary judgment filed by Defendant
Youngstown Ohio Hospital Company, LLC dba Valleycare Health System dba Northside Medical
Center (“Defendant”). ECF Dkt. #26. For the following reasons, the Court GRANTS Defendant’s
motion (ECF Dkt. #26) and DISMISSES Plaintiffs’ amended complaint in its entirety WITH
PREJUDICE:
I.

PROCEDURAL HISTORY
On September 19, 2016, Plaintiffs Beverly London (“Plaintiff London”) and Michelle Scott

(“Plaintiff Scott”) filed a complaint in this Court. ECF Dkt. #1. They indicated that they were ages
63 and 60, respectively, and were former employees of Defendant. Id. at 3. They averred that
Plaintiff London was hired in 1972 as a nurse’s aide and she was later promoted to a Unit Secretary
position, while Plaintiff Scott was hired as a housekeeper in 1978 and later also promoted to the
position of Unit Secretary. Id. They further averred that Plaintiff London had been disciplined only
once in 44 years and Plaintiff Scott had never been disciplined in 37 years of employment. Id.
Plaintiffs London and Scott alleged in the complaint that on or about February 9, 2016,
Defendant informed them that it was eliminating all Unit Secretary positions and replacing the
position with a new position called a Unit Technician position, which combined the Unit Secretary
position with the Personal Care Assistant (“PCA”) position, although the PCA position was not
being eliminated and the current PCAs were not losing their positions. ECF Dkt. #1 at 3. Plaintiffs

London and Scott further averred that all but one of the ten Unit Secretaries were over the age of 55.
Id. They further alleged that Defendant informed the Unit Secretaries that they had until February
17, 2016 to take a layoff, “bump” to another job, or bid on or apply for the new Unit Technician
positions. Id. at 4. According to Plaintiffs London and Scott, Defendant informed them that any
Unit Secretary hired as a Unit Technician would receive training. Id.
Plaintiffs London and Scott further allege in their complaint that they applied for the Unit
Technician position and Plaintiff London was one of three Unit Secretaries who was granted a Unit
Technician position. ECF Dkt. #1 at 4. They aver that the other five Unit Technician positions were
awarded to PCAs who were substantially younger than them. Id. They further aver that they were
then informed that the Unit Technician positions were not being awarded based upon seniority, so
they filed a union grievance indicating that the Unit Technician positions were not awarded
according to seniority and they noted that the positions were awarded to substantially younger
employees who did not have as much seniority or training as the Unit Secretaries. Id.
According to Plaintiffs London and Scott, Defendant thereafter withdrew all of the Unit
Technician positions, including that of Plaintiff London, and then reopened the positions for bidding.
ECF Dkt. #1 at 5. Plaintiffs London and Scott re-bid on the positions and neither they, nor any of
the Unit Secretaries, were awarded a Unit Technician position as those positions were given to
substantially younger PCAs who lacked experience as Unit Secretaries, which was part of the Unit
Technician positions. Id. Plaintiffs London and Scott averred that they had experience as nurses’
aides, which are similar to the PCAs positions. Id.
Plaintiffs London and Scott aver that Defendant terminated their employment on April 8,
2016 and deliberately eliminated the Unit Secretary positions to replace the Unit Secretaries with
substantially younger PCAs. ECF Dkt. #1 at 5. They aver that they suffered severe emotional
distress, anxiety and depression as a result of their wrongful termination by Defendant. Id.
In the complaint, Plaintiffs London and Scott allege claims in violation of 29 U.S.C. §621,
et seq., the Age Discrimination in Employment Act (“ADEA”), retaliatory discrimination in
violation of the ADEA, and intentional infliction of emotional distress (“IIED”). ECF Dkt. #1 at
6-8.
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On October 25, 2016, Plaintiffs London and Scott filed an amended complaint, which added
Plaintiff Gavolas (“Plaintiff Gavolas”)(collectively “Plaintiffs”) and expanded upon the complaint
allegations. ECF Dkt. #3. In the amended complaint, Plaintiffs also set forth their filing of Charges
of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the EEOC’s
issuance of Right to Sue letters, evidencing their exhaustion of administrative remedies. Id. at 2-3.
Plaintiffs aver in the amended complaint that Plaintiffs London and Gavolas were granted
Unit Technician positions after the first round of bidding, but Plaintiff Scott did not receive a
position. ECF Dkt. #3 at 5. They reallege that on or about February 29, 2016, they were informed
that the Unit Technician positions were not being awarded based on seniority and Plaintiffs and the
other Unit Secretaries filed a union grievance because of this. Id. Plaintiffs also noted that the Unit
Technician positions were awarded to substantially younger employees who lacked the seniority or
training as the Unit Secretaries. Id.
Plaintiffs reallege that on or about March 17, 2016, Defendant withdrew all of the Unit
Technician positions as a result of the settlement of the union grievance and reopened the positions
for bidding in compliance with the settlement, for which each Plaintiff rebid. ECF Dkt. #3 at 6.
Plaintiffs aver that none of them were awarded a Unit Technician position and all of those positions
were awarded to substantially younger PCAs. Id. Plaintiffs assert that on or about April 8, 2016,
Defendant terminated their employment. Id. Plaintiffs allege that Defendant deliberately eliminated
the Unit Secretary position to replace the Unit Secretaries with substantially younger PCAs. Id.
Plaintiffs aver that Defendant's reason for the termination of their employment is a pretext for age
discrimination. Id.
Plaintiffs reassert claims of discrimination, wrongful termination, and retaliation in violation
of the ADEA and IIED. ECF Dkt. #3 at 12. Defendant answered the amended complaint on
December 2, 2016. ECF Dkt. #9.
On August 28, 2017, Defendant filed the instant motion for summary judgment. ECF Dkt.
#26. On September 27, 2017, Plaintiffs filed a brief in opposition to the motion for summary
judgment. ECF Dkt. #28. On October 11, 2017, Defendant filed a reply brief. ECF Dkt. #29.

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II.

STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure provides in pertinent part that the Court

"shall grant summary judgment 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." Fed. R. Civ. P. 56(a); see
also Fed. R. Civ. P. 56, Advisory Committee Notes ("The standard for granting summary judgment
remains unchanged" despite 2010 amendments to Rule 56). Rule 56(c)(1) outlines the procedures
for supporting or opposing a motion for summary judgment, stating that:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). "The court must view the evidence and draw all reasonable inferences in
the light most favorable to the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir.
2009). Rule 56(c)(3) provides that the Court need only consider cited materials in determining a
motion for summary judgment, although the Court may consider other materials in the record. Fed.
R. Civ. P. 56(c)(3).
The party moving for summary judgment has the burden of showing there exists no genuine
issue of material fact. Matsushita, 475 U.S. at 587. If the moving party meets his burden, the
nonmoving party must take affirmative steps to avoid the entry of a summary judgment. See
Fed.R.Civ.P. 56(e). To refute such a showing, the nonmoving party must present some significant,
probative evidence indicating the necessity of a trial for resolving a material, factual dispute.
Celotex, 477 U.S. at 322. A mere scintilla of evidence is not enough; the evidence must be such that
a reasonable jury could find for the nonmovant. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court may grant summary judgment "only if the motion and
supporting materials – including the facts considered undisputed under subdivision (e)(2)– show that
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the movant is entitled to it." Fed. R. Civ. P. 56(e), Advisory Committee Note, 2010 Amendment.
III.

LAW AND ANALYSIS
A.

ADEA DISCRIMINATION

Defendant first moves for summary judgment on Plaintiffs' claim of age discrimination in
violation of the ADEA. ECF Dkt. #26-1 at 8. Defendant asserts that no direct evidence of age
discrimination exists and Plaintiffs cannot establish a prima facie case of age discrimination in order
to maintain a circumstantial case of age discrimination. Id. Defendant contends that Plaintiffs
cannot establish the fourth element of a prima facie case of discrimination because even if Plaintiffs
could show that they were replaced, which they were not because their Unit Secretary positions were
eliminated, they are unable to show that the individuals who replaced them were substantially
younger than they were. Id.
Generally, in order to assert a claim under the ADEA, a Plaintiff must present direct evidence
of discrimination or establish a prima facie case of age discrimination under the McDonnell-Douglas
burden-shifting analysis, outlined below. Minadeo v. ICI Paints, 398 F.3d 751, 763 (6th Cir. 2005)
citing Rowan v. Lockheed Martin Energy Systems, 360 F.3d 544, 547 (6th Cir.2004). “Direct
evidence is evidence that proves the existence of a fact without requiring any inferences.” Minadeo,
398 F.3d at 763, quoting Rowan, 360 F.3d at 547. If a plaintiff succeeds in presenting direct
evidence that he or she suffered an adverse employment decision as a result of a discriminatory
motive, “the burden shifts to the employer to prove by a preponderance of the evidence that it would
have made the same decision absent the impermissible motive.” Id. No direct evidence of
discrimination is alleged in this case.
“A plaintiff who fails to proffer direct evidence of age discrimination may instead establish
a prima facie case of age discrimination under the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Rowan, 360 F.3d
at 547. The first three elements a plaintiff must satisfy are that: (1) he or she was a member of a
protected class; (2) he or she was discharged; and (3) he or she was qualified for the position she
held. Minadeo, 398 F.3d at 764. The fourth element of proving a prima facie case of age
discrimination requires the employee to show that “the plaintiff was replaced by a person outside
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the protected class.” Id. However, the Sixth Circuit has held that, “alternatively, the fourth element
may also be satisfied by showing that similarly situated non-protected employees were treated more
favorably.’ ” Id. quoting Clayton v. Meijer, Inc., 281 F.3d 605, 610 (6th Cir.2002)(quoting Talley
v. Bravo Pitinio Rest. Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995).
Defendant first asserts that Plaintiffs cannot demonstrate that they were replaced because
their Unit Secretary jobs were eliminated due to a decreased need for clerical work because of
changing technology and organizational restructuring. ECF Dkt. #26-1 at 10-11. Defendant posits
that the tasks performed by the Unit Secretaries were incorporated into the seven new Unit
Technician positions upon which Plaintiffs bid. Id. at 11. In addition, Defendant asserts that even
if Plaintiffs could show that they were replaced, Plaintiffs cannot establish that they were replaced
by individuals significantly younger than them because the majority of the Unit Technicians who
were awarded jobs were close in age to Plaintiffs and those similarly situated to Plaintiffs, the other
Unit Secretaries, were treated the same way. Id. at 6-7. Alternatively, Defendant asserts, even if
those similarly situated to Plaintiffs are the PCAs and other Unit Technicians, the new Unit
Technicians were close in age to Plaintiffs. Id. at 13.
As Defendant points out, a plaintiff is not in fact replaced in a reduction of force scenario.
Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 371 (6th Cir. 1999). Thus, instead of showing that
he or she was replaced by a person outside of the protected class, "a 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.(internal quotations omitted). "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."
Id., citing 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." Id. "A plaintiff may demonstrate
pretext by showing that the proffered reason had no basis in fact, the proffered reason did not
actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge."
Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1048-49, (6th Cir. 1998).

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The Sixth Circuit has elaborated about that which constitutes a 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.
Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990).
Defendant asserts that it eliminated the Unit Secretary position and the duties from that
position that were not eliminated were incorporated into the new Unit Technician position. ECF
Dkt. #26-1 at 10-12. Plaintiffs assert in the amended complaint that Defendant “deliberately
eliminated the Unit Secretary position to replace the Unit Secretaries with substantially younger
PCAs.” ECF Dkt. #3 at 6. They also contend in their opposition brief that “[f]rom the beginning
of the layoff procedures, there was a general understanding among employees in the hospital that
Northside was getting rid of older employees because they did not want staff with as much seniority
and as little experience with technology as the secretarial staff.” ECF Dkt. #28 at 6.
Plaintiffs’ speculation and rumor fail to meet their reciprocal burden on summary judgment
that the Unit Secretary positions were eliminated because of the age of the Unit Secretary
employees. Plaintiffs also fail to raise a genuine issue of material fact that the elimination of the
Unit Secretary position was not due to emerging technology or reorganization at the hospital as
asserted by Defendant. Nor do Plaintiffs show that the duties from the Unit Secretary positions that
were not outdated were not incorporated into the new Unit Technician positions.
In fact, Plaintiffs cite to the testimony of Christine Heineman, the administrative organizer
for Defendant, who discussed with Plaintiff London and others the elimination of the Unit Secretary
position due to the move to electronic records and emerging technologies, along with reorganization
of the hospital. ECF Dkt. #28 at 2, citing ECF Dkt. #28-8 at 3-4. Further, Plaintiff Gavolas testified
in her deposition that she had not been treated differently or negatively by any of her superiors or
anyone she had major interaction with at the hospital and she had only heard rumors that Defendant
wanted to push the older employees out of their jobs. ECF Dkt. #28-5 at 11-12. More importantly,
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Plaintiffs and the other Unit Secretaries were offered the option of bidding on the newly created Unit
Technician positions and Plaintiffs London and Gavolas were actually awarded two of the new Unit
Technician positions. This belies any assertion that Defendant violated the ADEA by eliminating
the Unit Secretary positions due to age. ECF Dkt. #28 at 6, citing ECF Dkt. #26-4 at 21-22. For
these reasons, the Court GRANTS summary judgment in favor of Defendant as to Plaintiffs’ ADEA
discrimination claims.
Defendant also moves for summary judgment on Plaintiffs’ claims that Defendant violated
the ADEA when it denied them the new Unit Technician positions after offers to Plaintiffs London
and Gavolas were extended after the first bidding, rescinded when the positions were put up for
rebidding, and then not awarded to them after rebidding. ECF Dkt. #3 at 6; ECF Dkt. #28 at 5-7.
As Plaintiffs point out, Plaintiffs London and Gavolas were awarded new Unit Technician positions,
but then upon the resolution of their union grievance in which they complained that the new Unit
Technician positions were not awarded based upon seniority, the new Unit Technician positions
were opened back up for rebidding and none of the three Plaintiffs were awarded a position. ECF
Dkt. #28 at 3. They assert that all of the new Unit Technician positions were awarded to employees
younger than Plaintiff London and nearly half of the positions were awarded to employees younger
than Plaintiffs Scott and Gavolas. Id. at 6.
Defendant first asserts that Plaintiffs cannot show that they were treated differently than
similarly situated employees based on age. ECF Dkt. #26-1 at 12. Defendant contends that the
group of individuals with whom Plaintiffs must make their comparison as similarly situated are the
other Unit Secretaries, since Plaintiffs must show that the comparators are similarly situated in all
respects, including dealing with the same supervisor, having been subjected to the same standards
and “having engaged in the same conduct without such differentiating or mitigating circumstances
that would distinguish their conduct or the employer’s treatment of them for it.” Id., citing Mitchell
v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). Defendant contends that there is no evidence
that Plaintiffs were treated any differently than the other Unit Secretaries based upon their age, as
none of the Unit Secretaries were offered new Unit Technician positions. ECF Dkt. #26-1 at 12.

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Defendant further contends that even if the Court accepts Plaintiffs’ comparators as including
the prior Unit Technicians and PCAs who were awarded the new Unit Technician positions at
rebidding, Plaintiffs still cannot meet the fourth element of a prima facie case of age discrimination
because the employees awarded the new Unit Technician jobs upon rebidding were “all in the same
general age group.” ECF Dkt. #29 at 5. Defendant posits that Plaintiffs Scott and Gavolas were 59
years old and Plaintiff London was 63 at the time that the job posting closed, and the ages of the new
Unit Technicians as of the date of the closing of the job were 48, 51, 55, 58, 60 and 62 years old.
Id. at 6, citing ECF Dkt. #26-2. Defendant asserts that only one of the jobs was awarded to an
employee 10 or more years younger than Plaintiffs Gavolas and Scott and only two of the new Unit
Technicians were 10 or more years younger than Plaintiff London. ECF Dkt. #26-1 at 11.
Defendant also notes that “[m]ore importantly, only two of the employees who were awarded
positions were more than six years older than Plaintiffs Gavolas and Smith[sic]...” Id.
The fact that the new Unit Technicians were within the same age-protected class of workers
does not bar Plaintiffs from establishing a prima facie case of age discrimination. Grosjean v. First
Energy Corp., 349 F.3d 332, 336 (6th Cir. 2003). However, as Defendant points out, age differences
of 10 or more years are generally held to be sufficiently substantial in order to meet the requirement
of the fourth element of McDonnell Douglas. ECF Dkt. #26-1 at 11, citing Grosjean, 349 F.3d at
336 (citing cases). And as Defendant notes, the Sixth Circuit has also held that “in the absence of
direct evidence that the employer considered age to be significant, an age difference of six years or
less between an employee and a replacement is not significant” for ADEA purposes. Id. According
to Defendants, the ages of the new Unit Technicians hired upon rebidding were 48, 51, 55, 58, 59,
60, and 62 years, while Plaintiffs’ ages at the time that the posting closed were 59 years old for
Plaintiffs Scott and Gavolas, and 63 years old for Plaintiff London. Id. at 6, citing ECF Dkt. #26-2.
Plaintiffs offer no opposing argument concerning the ages of the new Unit Technicians or
any law concerning age differences as insignificant or sufficiently substantial. Nevertheless, even
accepting that Plaintiffs have established a prima facie case of age discrimination, Defendant has
offered a legitimate non-discriminatory reason for the termination of Plaintiffs’ employment and for
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not hiring Plaintiffs upon rebidding of the new Unit Technician positions. If an employee
establishes a prima facie case of age discrimination, “the burden of production shifts to the employer
to articulate a legitimate nondiscriminatory reason for the adverse employment action.”
Schoonmaker v. Spartan Graphics Leasing, L.L.C., 595 F.3d 261, 264 (6th Cir. 2010), quoting 29
U.S.C. § 623(a)(1). If the employer meets its burden of production, the burden of production shifts
back to the employee to show that the employer's stated reason was mere pretext. Id. The employee
must produce “sufficient evidence from which a jury could reasonably reject [the employer's]
explanation of why it fired her.” Blizzard v. Marion Technical College, 698 F.3d 275, 285 (6th Cir.
2012), quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir.2009). The employee can do this
by proving “ ‘(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did
not actually motivate [her discharge], or (3) that they were insufficient to motivate discharge.’ ”
Blizzard, 698 F.3d at 285, quoting Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 349 (6th
Cir.2012) (emphasis in original) (quoting Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078,
1084 (6th Cir.1994), overruled on other grounds, Geiger v. Tower Automotive, 579 F.3d 614 (6th Cir.
2009)). “Pretext is a commonsense inquiry: did the employer fire the employee for the stated reason
or not?” Blizzard, 698 F.3d at 285, quoting Chen, 580 F.3d at 400 n. 4. The burden of persuasion
remains on the plaintiff throughout to show that “age was the ‘but-for’ cause of the employer’s
adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177, 129 S.Ct. 2343, 174 L.Ed.2d 119
(2009); Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir.2009).
As the Court found above, Defendant has shown that the Unit Secretary positions were
eliminated due to emerging technology and reorganization of the hospital and some of their
remaining duties were incorporated into the new Unit Technician positions. Plaintiffs have not met
their burden of showing otherwise beyond speculation and rumor of age discrimination. Further,
Defendant has asserted that those new Unit Technicians hired upon rebidding had more patientrelated experience which were part of the duties required of the new Unit Technician positions and
Plaintiffs, as former Unit Secretaries with some patient-related experience, had less of that type of
required experience than those hired as the new Unit Technicians. ECF Dkt. #26-1 at 6. Defendant
asserts that it hired the new Unit Technicians upon rebidding based upon qualifications and seniority
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to resolve the union grievance filed by Plaintiffs, as 3 of the 7 new Unit Technician positions were
awarded to those former Unit Technicians who clearly had more experience aligned with the new
Unit Technician positions. Id., citing ECF Dkt. #26-2. Defendant further contends that the
remaining 4 new Unit Technician positions were awarded to PCAs who had more patient care
experience than any of the Unit Secretaries. ECF Dkt. #26-1 at 6. Defendant contends that none
of the Plaintiffs were awarded new Unit Technician positions upon rebidding because they lacked
sufficient patient care experience, not because of their age. ECF Dkt. #26-1, citing ECF Dkt. #26-2.
Plaintiffs respond that Defendant’s proffered reason for terminating their employment was
merely a pretext to hide unlawful age discrimination. ECF Dkt. #28 at 7. They assert that
Defendant’s reason did not actually motivate its conduct as the Unit Secretaries were willing to take
on more patient responsibilities and before the first round of vacancies for the position, Defendant
informed the Unit Secretaries that they would receive training for taking on more patient
responsibilities, but the training was cancelled. Id. Moreover, Plaintiffs point out that Defendants
London and Gavolas were actually awarded new Unit Technician positions during the first round
of hiring, which showed that Defendant believed that they were qualified for the position. Id.
Defendant counters that Plaintiffs were never informed that they were being laid off because
they were unwilling to take on more patient responsibilities and the testimony showed that the
responsibilities that the Unit Secretaries were uncomfortable with were not even included in the new
positions. ECF Dkt. #29 at 6, citing ECF Dkt. #26-8 at 17-18. Defendant contends that the
motivation behind its decision not to rehire Plaintiffs, or any of the other Unit Secretaries, was due
to their lesser amount of patient care experience and not because of their age. ECF Dkt. #29 at 6.
The Court finds that Defendant has presented a legitimate, nondiscriminatory reason for not
hiring Plaintiffs upon rebidding, and Plaintiffs have not met their burden of establishing a genuine
issue of material fact that more patient care experience did not actually motivate their failure to be
awarded the new Unit Technician positions or their subsequent termination of employment by
layoff.
The fact that Defendant awarded the positions to Plaintiffs London and Gavolas in the first round
of hiring does not show that they had sufficient patient experience, as according to both Plaintiffs
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and Defendant, the hiring criteria changed as a result of the union grievance that was filed and
resolved. Moreover, Plaintiffs present no showing of a genuine issue of material fact that age and
not patient experience was the motivating factor for not awarding the new Unit Technician positions
to them and their subsequent layoffs. Accordingly, the Court GRANTS Defendant’s motion for
summary judgment as to Plaintiffs’ claims of discrimination under the ADEA.
B.

ADEA RETALIATION

Defendant also moves for summary judgment on Plaintiffs’ claims of retaliation in violation
of the ADEA. ECF Dkt. #26. Defendant cites to Plaintiffs’ complaint allegations that their
employment was terminated and they were not rehired after they complained about the age
discrimination they experienced. Id., citing ECF Dkt. #3 at 8. Defendant asserts that the depositions
of Plaintiffs do not support their allegations as they each denied reporting alleged age discrimination
prior to the termination of their employment. ECF Dkt. #26-1 at 18, citing ECF Dkt. #26-3 at 17,
ECF Dkt. #26-4 at 23; ECF Dkt. #26-5 at 19-20. Defendant also asserts that Plaintiffs rely upon the
union grievance regarding age discrimination as their protected activity, but such a claim is not
included in the amended complaint. ECF Dkt. #29 at 7.
Like ADEA discrimination claims, retaliation claims may also be supported by either direct
or circumstantial evidence. Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 673 (6th Cir. 2013). Here,
Plaintiff relies on circumstantial evidence, so Plaintiffs must show the following (1) they engaged
in protected activity when they made their age discrimination complaint; (2) defendant knew about
the exercise of the protected activity; (3) defendant thereafter took adverse employment action
against them; and (4) there was a causal connection between the protected activity and the adverse
employment action. Spengler v. Worthington Cylinders, 615 F.3d 481, 491-92 (6th Cir. 2010). The
last two steps after a prima facie case is established are the same as those presented in the ADEA
discrimination claim, that is, defendant must then proffer a legitimate business reason for the adverse
decision, and then Plaintiffs must show that the stated reason is a pretext for retaliation.
The Court agrees with Defendant that Plaintiffs cannot establish the first element of the
prima facie case. While they did file a union grievance, Plaintiffs admit in their opposition brief that
they did not mention age discrimination in the grievance. ECF Dkt. #28 at 10. However, they assert
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that it was “obvious that Plaintiff’s concern about the treatment of employees with most seniority
is directly linked to concern about the treatment of the older employees within the company.” Id.
Neither party has provided the union grievance or the union contract language and resolution to the
Court and neither party attached the union grievance, resolution or contract to the depositions that
were filed with the Court. However, as pointed out by Defendant, each of the Plaintiffs in their
deposition denied that they reported age discrimination prior to the termination of their employment.
ECF Dkt. #26-1 at 18, citing ECF Dkt. #26-3 at 17, ECF Dkt. #26-4 at 23; ECF Dkt. #26-5 at 19-20.
And without additional support and analysis, the Court cannot find that it was “obvious” that
Plaintiffs’ grievance concerning the failure to award new Unit Technician positions according to
union agreement and contract language or seniority is directly linked to the ages of the employees.
Nevertheless, even if the Court finds that Plaintiffs have established all four of the elements
of their prima facie case of ADEA retaliation, the Court finds that Defendant has presented
legitimate nondiscriminatory reasons for terminating Plaintiffs’ employment after none of them
were awarded the new Unit Technician positions upon rebidding and Plaintiffs have failed to show
a genuine issue of material fact that these reasons were merely a pretext for retaliation. Again,
Defendant asserts that the Unit Secretary positions were eliminated due to emerging technology and
organizational restructuring and Plaintiffs present no evidence establishing a genuine issue of
material fact to the contrary that they were offered the opportunities to either take the layoff, bump
other employees, or bid on the new Unit Technician jobs. ECF Dkt. #26-1 at 15-16; ECF Dkt. #29
at 7-9. Moreover, Defendant contends that upon rebidding as a result of resolving Plaintiffs’ union
grievance, Defendant awarded the new Unit Technician positions on the basis of seniority and
qualifications for the new positions as requested by Plaintiff London in the grievance. Id. In their
brief in opposition, Plaintiffs merely assert temporal proximity between their termination of
employment and the filing of the union grievance and they state that “they were not at all resistant
to the addition of patient care responsibilities when Northside was adjusting their position. Further,
all Plaintiffs were exceptionally qualified for the unit technician positions.” ECF Dkt. #28 at 7-11.
The Court finds that without more, Plaintiffs have failed to establish a genuine issue of material fact
that Defendant’s stated reason for not hiring Plaintiffs upon rebidding, that they lacked patient
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experience, was a pretext for retaliation based upon filing the grievance. Accordingly, the Court
GRANTS Defendant’s motion for summary judgment as to Plaintiffs’ claims of retaliation in
violation of the ADEA.
C.

IIED

Finally, Defendant moves for summary judgment on Plaintiffs’ claim of IIED, asserting that
Plaintiffs cannot establish a genuine issue of material fact that Defendant’s conduct was so extreme
and outrageous to support an IIED claim and Plaintiffs have failed to provide medical evidence from
a physician, psychiatrist or psychologist to show severe or debilitating mental or emotional distress
as required to maintain such a claim. ECF Dkt. #26-1 at 19.
In order to establish a prima facie case of IIED under Ohio law, a plaintiff must show “(1)
that the defendant intended to cause [or recklessly caused] the plaintiff emotional distress, (2) that
the defendant's conduct was extreme and outrageous, and (3) that the defendant's conduct was the
proximate cause of plaintiff's serious emotional distress.” Lopez v. Am. Fam. Ins. Co., No. 14-3412,
618 Fed. App’x 794, (6th Cir. June 26, 2015), unpublished, quoting Phung v. Waste Mgt., Inc., 71
Ohio St.3d 408, 644 N.E.2d 286, 289 (1994). “Extreme and outrageous” conduct occurs when the
conduct is “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.”
Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen, & Helpers of Am., 6 Ohio St.3d
369, 453 N.E.2d 666, 671 (1983) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)),
abrogated on other grounds, Welling v. Weinfeld, 113 Ohio St.3d 464, 866 N.E.2d 1051 (2007).
The Sixth Circuit has held that under Ohio law, an “employee's termination, even if based
upon discrimination, does not rise to the level of ‘extreme and outrageous conduct’ without proof
of something more. If such were not true, then every discrimination claim would simultaneously
become a cause of action for the intentional infliction of emotional distress.” Lopez, 618 Fed. App’x
at 805, quoting Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 376 (6th Cir.1999); see also Talley
v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1111 (6th Cir.2008).
The Court GRANTS summary judgment in favor of Defendant on this claim. As pointed out
by Defendant, even if Defendant’s actions constituted ADEA discrimination and retaliation,
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Plaintiffs have pointed to nothing more to show “extreme and outrageous conduct.” Plaintiffs
simply cite to their testimony concerning the alleged mental and emotional harm that they suffered
as a result of the termination of their employment. ECF Dkt. #28 at 11-12. They make no showing
of conduct on the part of Defendant to establish “extreme and outrageous conduct.” Accordingly,
the Court GRANTS summary judgment to Defendant on Plaintiffs’ IIED claims.
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s motion for summary judgment

(ECF Dkt. #26) and Plaintiff’s amended complaint is dismissed in its entirety WITH PREJUDICE.
Judgment shall be entered in favor of Defendant.

Date: November 9, 2017

s/ George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE

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