Franks v. Village of Bolivar et al

Filing 63

Memorandum Opinion: Summary judgment is granted in favor of the defendants on all of plaintiff's remaining claims. (Related Doc # 44 ). Judge Sara Lioi on 9/18/2013. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

GARY FRANKS,

PLAINTIFF,
vs.
VILLAGE OF BOLIVAR, et al.,

DEFENDANTS.

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CASE NO. 5:11CV701

JUDGE SARA LIOI

MEMORANDUM OPINION

Before the Court is defendants’ motion for summary judgment (Doc. No. 44),1
plaintiff’s opposition (Doc. No. 55),2 and defendants’ reply (Doc. No. 61). For the reasons
discussed below, the motion is GRANTED.
I. BACKGROUND
A.

Procedural Background
On March 9, 2011, plaintiff Gary Franks (“plaintiff” or “Franks”) filed this action

in the Tuscarawas County Court of Common Pleas against the Village of Bolivar, Ohio (“the
Village”) and its mayor, Rebecca Hubble (“Hubble”) (collectively, “defendants”). Hubble was
sued in both her official and individual capacities. The complaint alleged claims of age
discrimination under Ohio Rev. Code § 4112.02(A), First Amendment retaliation, breach of

1

In support of the motion, defendants also filed plaintiff’s responses to defendants’ interrogatories and requests for
production of documents (Doc. No. 45) and numerous deposition transcripts (Doc. Nos. 47-51), along with the
deposition exhibits (Doc. No. 52).
2

Franks has attached an affidavit to his opposition brief. To the extent it contradicts his deposition testimony, it will
not be considered by the Court. Telerico v. Nationwide Mut. Fire Ins. Co., No. 12-2209, 2013 WL 3455481, at *4
(6th Cir. July 9, 2013) (“the well-worn rule in the Sixth Circuit is that ‘[a] party may not create a factual issue by
filing an affidavit, after a motion for summary judgment has been made, which contradicts [his] earlier deposition
testimony’”) (alteration in original) (quoting Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986)).

contract, abuse of power, and intentional infliction of emotional distress. Defendants removed
the action due to the First Amendment claim and subsequently moved for partial judgment on the
pleadings. On November 18, 2011, ruling on defendants’ motion, the Court dismissed Count III
(breach of contract) and Count IV (abuse of power), as well as any claim for punitive damages
against the Village and Hubble in her official capacity. Count I (age discrimination), Count II
(First Amendment retaliation), and Count V (intentional infliction of emotional distress) are the
remaining counts in the complaint. Defendants now move for summary judgment on all three
counts.
B.

Factual Background
Franks had been employed as the Water and Street Superintendant

(“Superintendent”) for the Village since 1977. (Franks Dep. [Doc. No. 47] at 232.) This position
was an appointed position, requiring annual reappointment by the Village Council at the mayor’s
recommendation. (Id. at 238-39; Hubble Dep. [Doc. No. 50] at 877.) Franks was reappointed
virtually every year (except when “they forgot” − Hubble Dep. at 877)3 until in or around
January 2011, when he was not reappointed. (Id. at 858, 877-80.)4 At that time, he was converted
from a salaried worker to an hourly worker and his pay was reduced to reflect the fact that he
was no longer the Superintendent (Hubble Dep. at 906, 908; Franks Dep. at 315); however, he
continued to do the exact same job duties as he had prior to his not being reappointed. (Hubble
Dep. at 874.) On February 11, 2011, the Village Council voted to offer Franks a retirement
package. (Doc. No. 52-11; Franks Dep. at 308-09.) Franks was under the impression that he had
been given time to consider the offer. (Franks Dep. at 312.) However, before he could return

3

Franks claims that it was just “[a]ssumed by everybody[ ]” that he would be reappointed. (Franks Dep. at 240.)

4

Hubble had taken office in February 2010. (Hubble Dep. at 771.)

2

with his response, following a vote by the Village Council at a meeting on February 21, 2011, his
employment with the Village was terminated by way of a letter he found on his desk the
following morning. (Id. at 262;5 Hubble Dep. at 914; see also Doc. No. 52-31.)
Franks claims these employment actions were a result of age discrimination and a
form of retaliation for his having spoken out about Village issues, in particular his view that the
Village could not afford a full-time police chief6 and his opposition to the institution of a time
clock. He further claims that his non-reappointment intentionally caused him to suffer severe
emotional distress over the prospect of losing his job and his benefits. Defendants assert that
Franks was not reappointed as the Superintendent (although he was initially retained as an
employee of the Street and Water Department) and was eventually terminated (but then allowed
to retire) because of his conduct and his attitude of insubordination toward his superior, the
Mayor.
II. DISCUSSION
A.

Summary Judgment Standard
Under Fed. R. Civ. P. 56(a), when a motion for summary judgment is properly

made and supported, it shall be granted “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.”

5

Franks characterized this official termination letter as a “note.” (Franks Dep. at 262.)

6

At his deposition, Franks testified that, during the term of the previous mayor, Pat White, he had spoken to Maria
App, a Village council person, about his belief that the Village, with a population of 800, could not afford a full-time
policeman, specifically referring to the position of police chief. App, who had asked for Franks’s opinion on the
issue, “[a]pparently . . . didn’t like what she asked me for, [taking it] as if [Franks] was against the police.” (Franks
Dep. at 301-02.) Franks also testified that he told Hubble, before she was mayor, “about [App] and Pat White and
the police chief sitting in this office over here for three, four hours a day and four, five days a week,” which, “as a
taxpayer, not as a superintendent,” he thought was “pretty much wasting my money that a police officer sits in the
Village hall with a councilman and the mayor for hours and hours and hours.” (Id. at 304-05.)

3

An opposing party may not rely merely on allegations or denials in its own
pleading; rather, by affidavits or by materials in the record, the opposing party must set out
specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(c)(1). Affidavits or
declarations filed in support of or in opposition to a motion for summary judgment “must be
made on personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). A
movant is not required to file affidavits or other similar materials negating a claim on which its
opponent bears the burden of proof, so long as the movant relies upon the absence of the
essential element in the pleadings, depositions, answers to interrogatories, and admissions on
file. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In reviewing summary judgment motions, this Court must view the evidence in a
light most favorable to the non-moving party to determine whether a genuine issue of material
fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); White v. Turfway Park
Racing Ass’n., 909 F.2d 941, 943-44 (6th Cir. 1990), impliedly overruled on other grounds by
Salve Regina College v. Russell, 499 U.S. 225 (1991). A fact is “material” only if its resolution
will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Determination of whether a factual issue is “genuine” requires consideration of the
applicable evidentiary standards. Thus, in most civil cases the Court must decide “whether
reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is
entitled to a verdict[.]” Id. at 252.
Summary judgment is appropriate whenever the non-moving party 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. Moreover, “[t]he
4

trial court no longer has the duty to search the entire record to establish that it is bereft of a
genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.
1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The nonmoving party is under an affirmative duty to point out specific facts in the record as it has been
established that create a genuine issue of material fact. Fulson v. City of Columbus, 801 F. Supp.
1, 4 (S.D. Ohio 1992). The non-movant must show more than a scintilla of evidence to overcome
summary judgment; it is not enough for the non-moving party to show that there is some
metaphysical doubt as to material facts. Id.
B.

Analysis
1.

Count I - Age Discrimination under Ohio Rev. Code § 4112.02(A)
Ohio Rev. Code § 4112.02 provides, in relevant part: “It shall be an unlawful

discriminatory practice: (A) For any employer, because of the . . . age . . . of any person, to
discharge without just cause, . . . or otherwise to discriminate against that person with respect to .
. . tenure, terms, conditions, or privileges of employment[.]”7
The Ohio Supreme Court has held that:
absent direct evidence, to establish a prima facie violation of R.C. 4112.14(A) a
plaintiff “must demonstrate (1) that he or she was a member of the statutorily
protected class, (2) that he or she was discharged, (3) that he or she was qualified
for the position, and (4) that he or she was replaced by, or that the discharge
permitted the retention of, a person not belonging to the protected class.”
Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 575 N.E.2d 439, syllabus
(explaining and modifying paragraph one of the syllabus in Barker, 6 Ohio St.3d
146, 6 OBR 202, 451 N.E.2d 807). This test is a descendant of McDonnell
Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d 668, in
which the United States Supreme Court promulgated an analytical framework for
claims of race discrimination.

7

Ohio Rev. Code § 4112.14(A) identifies persons over the age of 40 as the class protected against age
discrimination.

5

Coryell v. Bank One Trust Co., N.A., 101 Ohio St. 3d 175, 177 (2004) (footnote omitted) (an age
discrimination case).
Where this four-part McDonnell-Douglas test is used, once the prima facie case is
established by a preponderance of the evidence, the burden of production shifts to defendant to
articulate a legitimate, nondiscriminatory reason for the employment decision. Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). If defendant carries that burden, the
presumption of discrimination created by the prima facie case is rebutted, the presumption drops
from the case, St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993), and plaintiff, who
retains the burden of persuasion, must prove that the articulated reason was not the true reason
for the employment decision, but was merely a pretext for discrimination. Burdine, 450 U.S. at
253. “But a reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both
that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor Ctr.,
509 U.S. at 515 (emphases in original).
When a “direct evidence standard” is relied upon, “an employee must prove a
causal link or nexus between evidence of a discriminatory statement or conduct and the
prohibited act of discrimination to establish a violation.” Byrnes v. LCI Commc’n Holdings Co.,
77 Ohio St. 3d 125, 130 (1996). Direct evidence “is evidence other than the four-part
demonstration of Barker.” Id. at 128-29 (citing Kohmescher, supra). It is “evidence which, if
believed, proves the existence of improper discrimination animus without inference or
presumption. . . . Evidence either of statements made by non-decision makers or of statements
made by decision-makers that are not related to the decisional process itself do not satisfy the
plaintiff’s burden of demonstrating direct evidence of discriminatory [intent].” Shepard v. Griffin
Servs., Inc., No. 19032, 2002 WL 940110, at *3 (Ohio Ct. App. 2d Dist. May 10, 2002) (internal
6

quotation marks and citations omitted). “Specifically, isolated or ambiguous discriminatory
remarks are insufficient to support a claim for discrimination.” Id. at *4.
Plaintiff claims he can establish age discrimination under both the indirect and
direct methods. The Court will begin with the indirect method.
It is undisputed that plaintiff meets the first three elements of a prima facie case of
age discrimination. Defendants make no argument with respect to the fourth element, moving
directly to an argument that they had a legitimate, nondiscriminatory reason for their
employment decisions. Plaintiff asserts, without any reference to the record, that he was
“replaced by a thirty something worker[.]” (Opposition [Doc. No. 55] at 1342.)8 For purposes of
this analysis, therefore, the Court will assume that plaintiff has established a prima facie case of
age discrimination, shifting the burden of production to defendants to articulate a legitimate,
nondiscriminatory reason for not reappointing Franks as the Superintendant and for then
terminating his employment altogether.
To meet this burden, defendants assert that Franks had developed an attitude of
insubordination, evidenced specifically by four verbal and/or written disciplines that he received
between June and November 2010, which led to the decision in January 2011 not to reappoint

8

The record shows that, roughly around the time plaintiff was not reappointed as Superintendent, a new position of
Village Administrator was created to take the place of the Board of Public Affairs, which was eliminated. According
to Hubble, this had been discussed as far back as 2007 (when she was on the Village Council), but had never been
acted upon. (See generally Hubble Dep. at 862-67.) The person initially hired for that new position, John “Mike”
Heil, was apparently in his thirties, possessed a “water license” and had experience as a water operator. (Hubble
Dep. at 887; Heil Resume [Doc. No. 52-15] at 1255-57.) Hubble conceded that Heil was brought in because she was
“preparing for terminating Mr. Franks.” (Hubble Dep. at 889.) Heil was a temporary hire; he was replaced as the
Village Administrator by Mark Haueter, who was in his late twenties or early thirties. (Hubble Dep. at 931-32.)
Haueter did not have any water experience or certification (see Haueter Resume [Doc. No. 52-15] at 1258-59); he
was told, before he was hired, that he would be required to obtain “water board certification.” (Hubble Dep. at 93031.) After Haueter assumed the role of Village Administrator, Heil became the “water operator.” (Hubble Dep. at
897, 931.)

7

him as Superintendent. Thereafter, the situation escalated, resulting in Franks being offered a
retirement package, and eventually being terminated in February 2011.
Plaintiff’s first verbal warning related to Hubble’s observation of Franks’s 14year-old grandson operating the Village’s lawn mower in June 2010. Hubble told Franks not to
let his grandson operate the equipment until she could check with the Village attorney. Shortly
thereafter, Hubble confirmed with the attorney that the youth could not operate any Village
equipment. When Hubble told Franks not to let his grandson operate the mower again, she
claims Franks responded: “I’m going to pretend like I didn’t hear that[,]” (Hubble Dep. at 831),
although he denies ever doing so (Franks Dep. at 294-95). Hubble advised that she would “write
[Franks] up” if she saw it again. (Hubble Dep. at 831.) After that conversation, Hubble made a
trip to Virginia and, while there, she received a telephone call from her office to the effect that a
resident had observed a young man on the Village mower and had called to inquire when he had
been hired. When Hubble returned from her trip, she gave Franks a verbal warning (Hubble Dep.
at 831-33), although Franks had no recollection of receiving the reprimand (Franks Dep. at 29293).
Plaintiff was also given a verbal reprimand on August 2, 20109 regarding his
conduct with respect to a village resident, Frank Lunsford. (See Doc. Nos. 52-18, 52-19.) On or
about June 21, 2010, Lunsford had come to Hubble’s office to speak with her and the police
chief regarding a couple issues. After their conversation, Lunsford mentioned that, on several
occasions, he had seen Franks just sitting in his vehicle at the pump house for several hours.
Lunsford wondered why Franks was not working when he was on Village time. (Hubble Dep. at

9

It is not clear why this was considered a “verbal” reprimand, since it is quite clearly in writing. (See Doc. No. 5218.) However, whether it was verbal or written is not material to the legal analysis.

8

758-60.) Franks happened to be in a nearby restroom with the door open and he heard Lunsford.
Franks angrily came into Hubble’s office saying: “That’s a lie. That’s a lie. You know that’s a
lie.” (Id. at 762.) Franks, who was “very upset and very agitated” was “pointing at Mr.
Lunsford.” (Id. at 762, 834.) The police chief testified that Franks was red-faced, was “[s]pitting
mad,” and that “[t]here was a lot of screaming and yelling[.]” (Haugh Dep. [Doc. No. 51] at
1182-83; see also Doc. No. 52-2 at 1230.) The chief was concerned about Lunsford, who was on
oxygen, and wanted Franks to “[c]alm down” because “the guy was sucking through his
oxygen[.]” (Id. at 1184.) Hubble “had to vividly tell [Franks] to stop it, to leave the room[ ]”
because he was “very, very upset.” (Hubble Dep. at 835.) Franks admits he twice called
Lunsford “a liar” (Franks Dep. at 285, 287), and that Hubble “didn’t appreciate that I guess.” (Id.
at 286.) Franks’s son, who was also a Village employee, witnessed the event and even he told his
father that he “got a little bit loud.” (Id. at 344.)
Franks’s third discipline relates to his actions at a Village Finance Committee
meeting on August 30, 2010, at the time Hubble was instituting the use of a time clock for
employees. (See Doc. Nos. 52-20 to 52-26. ) Hubble had particular concerns about the amount of
overtime Franks was earning and felt there needed to be more accountability. (Hubble Dep. at
809-11, 825.) The bottom line was that, during the Finance Committee meeting where the time
clock was discussed, Franks became “very, very angry, very, very angry,” and refused to clock in
and out or to be called out for emergencies if he was going to be expected to use the time clock.
(Id. at 844.) In Franks’s view, Hubble inappropriately found him insubordinate for simply
“ask[ing the] question” about “who was going to call [him] out in emergencies if [he] had to
punch a time clock.” (Franks Dep. at 269.) He does not think he got loud or angry, but admits
that others may have thought he was angry because he got “animated.” (Id. at 274-75.)
9

Plaintiff’s fourth disciplinary action resulted from his actions with another Village
employee -- a bus driver who had apparently reported to a police officer that some low-hanging
branches on a street near the school needed trimming. The officer must have attended a Safety
Committee meeting and relayed the driver’s concern. After the Committee told plaintiff to
address the issue of the branches, plaintiff went to the driver to ask if he was the one who had
complained and to inform him that, in the future, he should just tell Franks directly, not go to the
Council. Part of this conversation was recorded on a police cruiser video camera by an officer
who was monitoring the school zone. (Haugh Dep. at 1148-50.) The video was turned over to the
mayor’s office (Hubble Dep. at 850) and it apparently showed Franks yelling at the bus driver,
which Franks denies. (Franks Dep. at 289-90; see also Doc. No. 52-2 at 1231.) As a result of this
incident, “per council request,” Franks was given a written warning for “[i]nsubordination,
including but not limited to, refusal or failure to perform work assignment and the use of profane
or abusive language to supervisors, employees or officers of the village, and absence from duty
without notice or permission of the supervisor.” (Doc. No. 52-28; see also Hubble Dep. at 843.)
Because of these four incidents, which happened in a short space of time, Hubble
and the Village Council decided not to reappoint Franks as the Superintendent. (Hubble Dep. at
860.) Prior to making that decision, during the December council meeting the Council and the
Mayor discussed a possible termination, but the Mayor’s preference was for “something else to
happen besides that.” (Id. at 853.) In particular, she preferred to see Franks retire, since “on
numerous occasions” he had told her he was “looking to retire probably sometime at the end of
the year [2011].” (Id. at 859.) At the time of those discussions with Franks, Hubble had no
problem with him working through the end of 2011. (Id. at 860.)

10

By December 2010 or January 2011, however, “[t]hings had escalated . . . and
[Franks] was very agitated a lot of times when he came to work.” (Id. at 876.) “[H]e could be
very hateful to [Hubble and] [a]t one point [she] had the door slammed in [her] face by [Franks].
It was not a good working relationship.” (Id. at 876-77.) Sometimes when Hubble gave Franks a
directive, “he would walk off in a huff, and then he wouldn’t do it[.]” (Id. at 915.) She
acknowledged thinking, at the time they were planning to hire a Village Administrator, that, “if
things continued as they [were], there [was] a possibility that Mr. Franks would no longer be
employed with the village.” (Id. at 889.)10 There is no evidence that Hubble ever formally
reprimanded Franks for this rude behavior.11
One of the ways that matters had escalated following Franks’s demotion was that
others, in particular Maria App and Chief Haugh, were complaining that Franks had begun

10

Hubble also testified that, after she became mayor, she met frequently with Franks. During those meetings, she
“explained to [him] how [she’d] like things done[.]” (Hubble Dep. at 877-78.) She asked him to tell her if there were
any major problems; but she “would never get any form of communications. [Franks] very rarely said anything to
[her] in regards to what was going on.” (Id. at 878.)
Franks acknowledged that the previous mayor “was very inactive” and that “[Mayor Hubble] had,
apparently, her own way of thinking how things were to run and they were different from the ways things had run in
the past[.]” (Frank Dep. at 255.) When Hubble took office, “at first it was not much change, but then she kept
changing with the idea that [Franks] was doing everything wrong[.]” (Id. at 256.) Hubble testified that she had
noticed that Franks and his son, Dave (who was also a Village employee), did everything together. For example, if
someone needed to go to the store to buy a part for something, they would both go. She told Franks that he and his
son had “separate duties” and “shouldn’t be riding around together.” (Hubble Dep. at 920.) Franks never complied
with this directive, although Hubble admits she never wrote him up for it. (Id. at 921.)
Franks further acknowledged that he was fired because he “was written up numerous times for things[.]”
(Id. at 264.) However, he characterized the incidents for which he was disciplined as “very trivial.” (Id.)
11

Defendants do not seem to rely on these particular factual assertions as support for their adverse employment
decision, so the Court need not be concerned about whether they are true, a matter that would be better left to a jury,
since plaintiff was not questioned at his deposition about any of this alleged behavior. That said, the Court also notes
that a person’s mere protected-class status does not insulate him from adverse employment actions. If an employee
were to repeatedly get very angry at his boss, slam doors in her face, ignore her directives, and otherwise act in a
rude and insulting fashion, that employee can expect negative consequences. An employee who would fail to stop
that conduct when warned about it, just because he does not agree with the employer’s judgment as to the severity of
the conduct, can even expect to be terminated. No employer is required to tolerate bad behavior, even from a
longtime employee who otherwise does his job satisfactorily. See, e.g., Mararri v. WCI Steel, Inc., 130 F.3d 1180,
1183-84 (6th Cir. 1997) (it is appropriate to distinguish between a discharge on the basis of misconduct and
discharge on the basis of some otherwise protected status); Keith v. Ashland, Inc., 205 F.3d 1340 (6th Cir. 2000)
(Table) (civil rights statutes “do[ ] ‘not insulate one from the consequences of one’s actions’”) (quoting Mararri).

11

harassing them and following them, even taking pictures of them. (Haugh Dep. at 1099-1118;
App Dep. [Doc. No. 48] at 545-49; see also Doc. No. 52-1; Doc. No. 52-2 at 1232-35.) On
February 15, 2011, Hubble advised Franks in writing, and put a note in his personnel file, that he
was not to follow Haugh or any member of council and must refrain from being in or near their
residences. (See Doc. No. 52-30; Hubble Dep. at 995, 1007.) Franks denies that he ever followed
or stalked anyone (Franks Dep. at 264-65; 288), and asserts that he just happened to be in the
neighborhood each time they saw him, because his drive to the pump house took him past App’s
home (id. at 358-59). In an affidavit attached to his opposition brief, Franks belatedly asserts that
he has “multiple witnesses that he was at the high school helping with sports teams during that
time.” (Aff. [Doc. No. 55-1] ¶ 8.)12 However, the police chief testified that photographs found on
a camera in Franks’s city truck show that he was photographing Haugh and App. (Haugh Dep. at
1098-1101.)
It is clear from this record that defendants have met their burden of producing a
legitimate, nondiscriminatory reason for Franks’s termination, namely, that he had developed an
escalating attitude of insubordination and had begun harassing other Village employees.
Plaintiff argues that defendants’ reason is no more than a pretext for age
discrimination. He argues that the reprimands and write-ups he received were insufficient to
motivate his demotion and/or termination, and that they came immediately after Maria App

12

Apparently the Village Council, in 1986, had given approval for Franks to leave work and go to the local high
school during football season to wrap the ankles of the football players. This occurred three days a week from about
3:00 to 3:30. (Franks Dep. at 296.) Franks claims that he kept track of the time away and would offset it against the
time he spent checking the pump house on weekends or going to committee meetings. (Id. at 297-98.) Hubble had
concerns that this privilege was being taken advantage of and that the time away from his work was not being made
up and/or accounted for. This was one reason she wanted to institute use of a time clock. (Hubble Dep. at 810-11.)

12

conducted a salary comparison in August 2010, which revealed that Franks’s salary was
“significantly higher” than that of other employees. (See App Dep. at 472-74, 480.)13
Plaintiff’s assertions of pretext are unsupported by the record. To establish
pretext, plaintiff has to first prove the falsity of the reason given by defendants. St. Mary’s Honor
Ctr., supra. As has been noted already, plaintiff does not deny that the incidents for which he
was reprimanded occurred; he merely discounts their importance or severity. Therefore, plaintiff
fails this half of the test for pretext.
In addition, to prove pretext, plaintiff must show that the reasons given by the
defendants were not the real reason, but that age was actually their reason for taking the adverse
employment actions. St. Mary’s Honor Ctr., supra. Even though all four of his official
reprimands occurred chronologically after App had performed the cost analysis of employees’
salaries, this is not proof of age discrimination. Plaintiff’s burden is to prove that “age . . .
actually played a role in [the employer’s decisionmaking] process and had a determinative
influence on the outcome.” Blandford v. Exxon Mobil Corp., 483 F. App’x 153, 157-58 (6th Cir.
2012) (alteration in original; internal quotation marks omitted).
The Supreme Court has stressed that “the very essence of age discrimination [is]
for an older employee to be fired because the employer believes that productivity and
competence decline with old age.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). In
other words, age discrimination is “based in large part on stereotypes unsupported by objective
fact[.]” EEOC v. Wyoming, 460 U.S. 226, 231 (1983). Therefore, “[a]ge discrimination plaintiffs

13

App was a Village Council member. She was originally appointed to council in early 2003 and subsequently won
the office by election. (App Dep. at 418-19, 420.) She and Franks were “personal friends” at one time and “had a
very good working relationship.” (App Dep. at 434.) In 2010, App decided to do the salary analysis of every Village
employee for an eleven-year period for the purpose of understanding “how the money is budgeted in [the] village.”
(App Dep. at 472, 480.)

13

must establish that they were discriminated against because they were old, not because they were
expensive.” Blandford, 483 F. App’x at 159 (internal quotation marks and citation omitted). In
Hazen Paper, the Court held that it was not age discrimination to fire an employee to prevent his
pension from vesting,14 “since the employee’s cost, rather than his age, motivated the firing[.]”
Lyon v. Ohio Educ. Ass’n & Prof. Staff Union, 53 F.3d 135, 138 (6th Cir. 1995). Therefore, even
if Franks were terminated because the Village Council and the Mayor discovered that his salary
was significantly higher than others, this, without more, would not constitute age discrimination.
Notably, Franks does not deny the factual basis of any of the four formal
reprimands;15 in fact, although he puts a somewhat different spin on each, he acknowledges that
each incident occurred.16 His personal opinion as to whether they were serious or specific
enough to warrant termination is in no way dispositive, nor does it create a material factual

14

Even though such a firing, without more, did not constitute age discrimination, the Court noted that it “[did] not
mean to suggest that an employer lawfully could fire an employee in order to prevent his pension benefits from
vesting[ ] [because] [s]uch conduct is actionable under § 510 of ERISA[.]” Hazen Paper, 507 U.S. at 612 (emphasis
in original).
15

Franks argues that “the write-ups . . . are insufficient to motivate a discharge because they were too vague to
credibly support insubordination as a justification for Plaintiff’s termination.” (Opposition at 1343.)
Franks attacks the August 2, 2010 write-up relating to the June 21, 2010 Lunsford incident, arguing that it
could be “more specific[.]” (Id.) Even a cursory review of that write-up reveals that it is quite detailed. Even so,
plaintiff argues that Hubble “wanted to have this warning to thwart accusations of unlawful age discrimination or
retaliation[.]” (Id.) Notably, he does not deny the incident.
Franks attacks the November 10, 2010 write-up relating to the August 31, 2010 bus incident as containing
only “boilerplate language” that is “too imprecise to use as support for bad behavior justifying termination.” (Id.) He
argues that Hubble’s two-month delay in documenting this incident suggests that, “upon taking notice of Plaintiff’s
age in [App’s salary] Comparison, [Hubble] wrote Plaintiff up so she could use insubordination as a pretext for
firing him.” (Id.) Again, he does not deny the actual incident.
Finally, he attacks the February 15, 2011 warning placed in his employment file directing him not to harass
or follow the police chief or any council person. He alleges, based on his own self-serving affidavit (presumably at ¶
8, although he does not provide a pinpoint citation), and on a non-supporting reference to his deposition at page 102
[Page ID # 330] lines 14-21, that “the proffered reasons for Plaintiff’s termination have no basis in fact, and/or were
insufficient to motivate a discharge[.]” (Id. at 1344.) Although Franks denies any factual basis for this write-up, this
is not actually one of the four reprimands relied upon by the defendants. This write-up relates to the purportedly
“escalating” behavior following his demotion from Superintendent.
16

Plaintiff does deny that he followed or stalked other employees. However, the entire record suggests that, even
before complaints of such harassment were made, there were already thoughts of terminating Franks’s employment
because of his recent repeated insubordination toward the Mayor. (Hubble Dep. at 889.)

14

dispute precluding summary judgment. See Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th
Cir. 1996), quoted by Coulter v. Deloitte Consulting, L.L.C., 79 F. App’x 864, 868 (6th Cir.
2003) (“[i]t is the manager’s perception of the employee’s performance that is relevant, not
plaintiff’s subjective evaluation of his own relative performance[]”).
Plaintiff also asserts that he can prove age discrimination directly.17 He cites Scott
v. Potter, 182 F. App’x 521 (6th Cir. 2006) for the proposition that (1) Hubble’s conversations
with him about retirement, including her alleged offer to throw him a retirement party, (2)
Hubble’s alleged statement that Franks should go work on a farm, and (3) Hubble’s assertion that
she had projects to accomplish that Franks could not do, are “nothing but a proxy for age[,]” that
is, direct evidence of age discrimination. (Opposition at 1344-45.)
Hubble testified that, as of December 2010, she did not necessarily want Franks to
retire; however because of all the problems, she thought retirement would be better than
termination, a possibility already being discussed by the Village Council. (Hubble Dep. at 840,
841, 853-54.)18 In fact, Hubble claims that Franks approached her several times after she became
mayor to talk about retirement, wanting her to know that he was thinking about retiring at the
end of 2011, when he could get his full PERS benefits. (Id. at 858-59.)

17

Franks’s particular argument in this regard is somewhat self-defeating. He argues that “[all] the evidence
described above [for the indirect, burden-shifting analysis] also qualifies as direct evidence of [d]efendants’ age
discrimination against [p]laintiff because reasonable inferences can be made from the words and comments that
there is a genuine issue of material fact precluding summary judgment.” (Opposition at 1345, emphasis added.)
Direct evidence, by definition, requires that no inferences need be drawn.
18

Maria App confirmed that the Council’s “whole goal was to either . . . bring things into compliance . . . [and], if
that didn’t happen, give him an option, either retire, resign, you have your integrity, and it doesn’t exploit anything
in town as to what our concerns are.” (App Dep. at 530-31.)

15

Franks testified that, because of all the executive sessions he was not part of,19 he
“had an idea” that they were discussing his termination “because of the reprimands[.]” (Franks
Dep. at 310.) He approached the Mayor “[o]ne night after council meeting [to] ask[ ] her what
the situation was[.]” (Id. at 309.) He claims Hubble said that “we would really like for you to
retire.” (Id.) She purportedly told him “she had big projects that she wanted to accomplish and
she didn’t think [he] could do those.” (Id.) She “offered [him] a big party if [he] would retire
[and] [s]he said [he] could go work on the farm.” (Id.)20
Franks never asked Hubble what “big projects” she was referring to (Franks Dep.
at 313) and, at his deposition, he admitted he could not recall any occasion when Hubble told
him not to proceed with a project he had proposed during their regular meetings, which he said
occurred weekly (id. at 280-81). Hubble says that she and Franks had only one conversation
about a project, the “trail project,” which entailed pouring concrete, a job that was always
contracted out to others. (Hubble Dep. at 934; see also Franks Dep. at 245, acknowledging that
contractors did all paving projects.) In fact, as far as job performance goes, Hubble testified that
Franks “did it to the best of his ability.” (Id.) She had no complaints about “the actual job
performance[.]” (Id.)
As noted above, Franks claims that these incidents did not amount to “stray
workplace remarks, because there was an ongoing theme with respect to his age and being due
for retirement.” (Opposition at 1346.) He claims, under Scott, supra, that these incidents
constitute a proxy for age and, as such, are direct evidence of age discrimination. In Scott, the
court explained the concept of “proxy” as follows:
19

Under the previous mayor, Pat White, Franks had apparently participated in at least some of the executive
sessions of Council. (See Franks Dep. at 311 -- “After Pat White I was never invited to an executive session.”)
20

This was apparently a reference to a farm held in a Franks family trust. (Franks Dep. at 318-19.)

16

For example, an employer might routinely use a facially innocuous term like
“experienced” to refer to an older worker in a disparaging way. If there was
evidence of such routine usage, then a statement like “Let’s fire him; he’s too
experienced” would be direct evidence of age discrimination. Cf. Hazen Paper,
507 U.S. at 612-13, 113 S.Ct. 1701. This is because no factual inference of
discrimination need be drawn from the statement, only a translation need be
applied -- i.e., “experienced” means “too old” to that particular employer. Here,
though, [plaintiff] has offered no evidence that the defendants use “retire” as a
proxy for “too old” or some other derogatory, age-based term. See Erickson, 271
F.3d at 725 (affirming summary judgment where plaintiff failed to show that the
defendant used length of tenure as a proxy for age).
Scott, 182 F. App’x at 526. The court in Scott cited Erickson, where plaintiff had been demoted
due to poor performance. His superior purportedly said that he “should have moved five years
ago” because “twenty years is too long.” Erickson v. Farmland Indus., Inc., 271 F.3d 718, 723
(8th Cir. 2001). The court upheld the district court’s grant of summary judgment in favor of the
employer on plaintiff’s age discrimination and retaliation claims. It held that plaintiff’s reliance
on these statements as a proxy for age “require[d] an inference, and the comment therefore does
not directly reflect an attitude of discrimination based on age.” Id. at 725. The remarks that
plaintiff was “stale” and “set in his ways” were deemed by the court to be legitimate business
concerns when evaluating a salesman’s performance. It held that “only by inference could we
leap from these remarks to a conclusion that [plaintiff’s superior] was really talking about
[plaintiff’s] age rather than his effectiveness as a salesman.” Id.
Similarly, in Franks’s case, the record supports a conclusion that, since he had
served the Village for over thirty years, when issues of insubordination suggested that
termination might be warranted, the Village and Hubble preferred to offer him the opportunity to
retire, especially in light of the fact that he had already voluntarily discussed his retirement as
being imminent. Only by inference could one conclude from any of the three examples given by
Franks that these were really references to his age.
17

Franks has simply not met his burden, either directly or indirectly, of showing that
defendants’ termination of his employment was based on age. Accordingly, defendants are
entitled to summary judgment in their favor on Count I (age discrimination).
2.

Count II -- First Amendment Retaliatory Discharge21
In Count II, plaintiff alleges that he had engaged in protected speech under the

First Amendment and “did not share in all of the views of the Mayor.” (Compl. ¶ 64.) He alleges
that he “wanted his benefits due and owing to him and would not accept less or a payment plan
just because the Village had used the monies in which [sic] were owed to him.” (Id. ¶ 66.) He
further alleges that he “suffered adverse employment actions due to his speech and/or his request
to have his benefit monies[.]” (Id. ¶ 67.) He alleges his employment was terminated “because of
his speech that was in opposition to various policies and practices of [d]efendants[,]” (id. ¶ 68),
and “because he voiced his opinion that the Village refused to pay his benefit monies, which
were due and owing to him because they did not have his money on hand.” (Id. ¶ 69.)
Although Count II alleges these specific facts, relying on plaintiff’s response to an
interrogatory, defendant’s motion narrows the scope of this claim. Defendants posed
Interrogatory No. 9 to plaintiff as follows:
For all speech for which you believe you were retaliated against by the Village or
Mayor Hubble, identify
a. What you said;
b. Who was present;
c. When you said it; and
d. Where you said it.
(Doc. No. 45-1 at 220.) In response to the interrogatory, plaintiff stated:

21

Although the complaint makes no mention of 42 U.S.C. § 1983, presumably Count II is brought under that statute
for actions taken in violation of the First Amendment under color of state law.

18

Answer: Objection. The subject matter is better suited for deposition. Without
waiving objection, all statements relative to the management and cost of the
police department. All statements made during finance committee meetings in
regards to the time clock issue and reprimands.
(Id.) Defendants state in their motion that “[p]laintiff identified two incidents of speech which he
believes resulted in his termination.” (Motion at 206.) Defendants then address their motion
solely to these two examples of free speech: plaintiff’s expressed opinions about the Village
police department, more specifically, whether there was need for a full-time policeman for a
village of 800 residents, and plaintiff’s comments at the Finance Committee meeting relating to
the institution of a time clock for employees.
Plaintiff, in his opposition brief, has notably not objected to defendants’
narrowing of the issues in the complaint, but has simply responded in like fashion solely to the
two issues identified by defendants. The Court, therefore, concludes that plaintiff has waived the
broader allegations in his complaint and is now confining his First Amendment retaliation claim
to these two matters.
First Amendment retaliation claims, like age discrimination claims, are analyzed
under the McDonnell-Douglas burden-shifting framework. “A plaintiff must first make a prima
facie case of retaliation, which comprises the following elements: ‘(1) he engaged in
constitutionally protected speech or conduct; (2) an adverse action was taken against him that
would deter a person of ordinary firmness from continuing to engage in that conduct; [and] (3)
there is a causal connection between elements one and two—that is, the adverse action was
motivated at least in part by his protected conduct.’” Dye v. Office of the Racing Comm’n, 702
F.3d 286, 294 (6th Cir. 2012) (quoting Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250,
255 (6th Cir.2006)). “If the employee establishes a prima facie case, the burden then shifts to the
19

employer to demonstrate ‘by a preponderance of the evidence that the employment decision
would have been the same absent the protected conduct.’” Id. (quoting Eckerman v. Tenn. Dep’t
of Safety, 636 F.3d 202, 208 (6th Cir. 2010) (internal quotation marks omitted)). “Once this shift
has occurred, summary judgment is warranted if, in light of the evidence viewed in the light most
favorable to the plaintiff, no reasonable juror could fail to return a verdict for the defendant.” Id.
at 294-95 (internal citation and quotation marks omitted). “Unlike in the McDonnell Douglas
burden-shifting framework, the burden does not shift back to a plaintiff to show pretext in First
Amendment retaliation claims.” Id. at 295.
With respect to plaintiff’s speech relating to the Village police department,
defendants argue that he cannot establish the third element of a prima facie case. As to his speech
relating to the time clock, defendants assert that it was not protected speech. The Court will
address each argument.
Defendants argue that it is not enough that an adverse employment action
followed the protected speech; plaintiff must prove a link between the speech and the adverse
action. Bailey v. Floyd Cnty. Bd. of Educ., 106 F.3d 135, 144-45 (6th Cir. 1997). To prove this
link, plaintiff must show “that the speech was a ‘substantial’ factor -- a ‘motivating’ factor -- in
the employer’s decision to terminate his or her employment.” Id. at 144 (quoting Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). “[T]he employee must point to
specific, nonconclusory allegations reasonably linking [his] speech to employer discipline.” Id.
(internal quotation marks and citations omitted). “That is, [plaintiff] must present evidence

20

sufficient to create a genuine issue that [his] speech caused [his] discharge.” Id. at 145 (emphasis
in original).22
Here, as in Bailey, plaintiff is unable to “present evidence of evidentiary quality
that demonstrates the existence of a genuine issue of material fact.” Id. at 145 (citations omitted).
Here, as in Bailey, plaintiff “points to no actions or comments by the named defendants that
would raise a genuine issue that [his] protected speech was a substantial or motivating factor in
the decision to dismiss [him].” Id. Franks himself admits that the substance of his speech (a
conversation with App relating to whether or not a police department was needed in the Village)
actually occurred during the tenure of the previous mayor. He then declares, in conclusory
fashion: “Later, during Mayor Hubble’s tenure, Maria App and Mayor Hubble tangled with
[p]laintiff again over the use of police resources, as evidenced by the Mayor’s write up on
February 15, 2011, in which she wrote ‘ . . . you are not to harass or follow . . . the Chief of
Police.’” (Opposition at 1349-50.) He goes on: “The timing of these incidents suggests a long
standing difference of opinion regarding the use of police resources.” (Id. at 1350.)
There is nothing in this record, including the timing of the incidents, to suggest
that plaintiff was fired because he expressed an opinion in 2007 or 2008, during the previous
mayor’s term, that he did not think the Village needed or could afford a full time police chief. By
his own testimony, he “had no conversations with the sheriff or anybody else [about the police
chief issue] after that point.” (Franks Dep. at 306-07.) The February 15, 2011 written warning
quoted by plaintiff relates to allegations that he was harassing and stalking the chief of police,

22

The court in Bailey noted that, although “[o]rdinarily, causation is a question to be resolved by a jury[,] . . . [a]
court may nevertheless grant summary judgment on the issue of causation when warranted.” Bailey, 106 F.3d at 145
(citing Matulin v. Village of Lodi, 862 F.2d 609, 613 (6th Cir. 1988); Hartsel v. Keys, 87 F.3d 795, 803 (6th Cir.
1996)).

21

allegations that were reasonably supported by pictures from the camera in his own truck. There is
no connection between this 2011 warning and the conversations that took place in 2007 or 2008.
Plaintiff’s second example of free speech retaliation relates to his vocal
opposition to the introduction of a time clock. As to this example, defendants argue that it does
not fall under the category of protected speech.
“When a public employee sues a government employer under the First
Amendment Speech Clause, the employee must show that he or she spoke as a citizen on a
matter of public concern.” Borough of Duryea, Pa. v. Guarnieri, 131 S.Ct. 2488, 2493 (2011)
(citing Connick v. Myers, 461 U.S. 138, 147 (1983)). “If an employee does not speak as a citizen,
or does not address a matter of public concern, ‘a federal court is not the appropriate forum in
which to review the wisdom of a personnel decision taken by a public agency allegedly in
reaction to the employee’s behavior.’” Id. (quoting Connick, 461 U.S. at 147). “Even if an
employee does speak as a citizen on a matter of public concern, the employee’s speech is not
automatically privileged. Courts balance the First Amendment interest of the employee against
‘the interest of the State, as an employer, in promoting the efficiency of the public services it
performs through its employees.’” Id. (quoting Pickering v. Bd. of Educ. of Twp. High Sch. Dist.
205, Will Cnty., 391 U.S. 563, 568 (1968)).
The Court does not agree with defendants’ assertion that this was not a matter of
public concern. Franks was obviously voicing his opinion about the time clock, particularly as it
related to his time on weekends going out to check on the pump house and to the times he was
called out in emergencies, out of concern that this would be a waste of time (and, thus, taxpayer
money). Since this was a concern regarding wise use of Village resources, it certainly was a
matter of public concern. However, the causation element is missing here because Franks was
22

not disciplined because he disagreed with using a time clock. His reprimand resulted from the
fact that he got “very, very upset,” “visibly upset,” when discussing the matter (Hubble Dep. at
843, 845), directing his anger at the Mayor, his superior, and going so far as telling her that he
simply would not use the time clock (Id. at 845, 847). No matter how important this discussion
may have been in the grand scheme of public concerns, Franks was not free to affront his
superior in that public setting (or for that matter, in any setting), nor was he free to direct anger at
her, nor was he free to refuse her directive to use a time clock, all under a rubric of “free
speech.” Even though he was, undoubtedly, free to voice his opinion on this subject, he was not
free to do so in any manner he chose, no matter how offensive.
Plaintiff has failed to meet his burden of showing that he was terminated from his
position with the Village in retaliation for his exercise of his First Amendment free speech rights.
Accordingly, defendants are entitled to summary judgment on Count II (First Amendment
retaliation).

3.

Count V-- Intentional Infliction of Emotional Distress
In Count V, plaintiff alleges that defendants “acted intentionally when [they] fired

[p]laintiff without cause when he was on the verge of retirement and collecting his long
accumulated retirement benefits.” (Compl. ¶ 84.) He alleges that defendants “knew or should
have known that [p]laintiff would suffer serious emotional distress as a result of being fired in
the Village, publicly discussed as an employee with problems, tapings of the [p]laintiff without
his consent, following him during his job duties by council and the police chief and disparaging
comments of throwing a big party if he would leave, or told to work on the farm.” (Id. ¶ 85.) He
alleges that these actions constitute intentional infliction of emotional distress.
23

In Ohio, a person is liable for intentional infliction of emotional distress when he
or she “by extreme and outrageous conduct intentionally or recklessly causes severe emotional
distress to another[.]” Kovacs v. Bauer, 80 Ohio St. 3d 1224, 1227 (1998) (dissent) (noting that
the tort was first recognized in Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen
& Helpers of Am., 6 Ohio St. 3d 369 (1983), when the court “adopted the standard established in
1 Restatement of the Law 2d, Torts (1965) 71, Section 46(1)”).23 For conduct to be considered
“extreme and outrageous,” it must be “so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency[.]” Yeager, 6 Ohio St. 3d at 375.
“[A] wrongful termination of employment in itself is not sufficient to give rise to
a claim for intentional infliction of emotional distress unless the conduct accompanying the
discharge is extreme and outrageous conduct by defendants.” Browning v. Navistar Intern.
Transp. Corp., No. 91AP-1286, 1992 WL 112618, at *4 (Ohio Ct. App. May 19, 1992).
Here, Count V of plaintiff’s complaint substantially alleges no more than that he
was terminated before he could enjoy the full scope of his retirement benefits and that defendants
knew this would cause him severe emotional distress. This, by itself, is insufficient to establish
the tort.24 Loss of his benefits was merely a consequence of loss of his employment. Even if the
loss of his employment were deemed wrongful (which it is not), the wrongful termination alone
would not constitute the separate tort of intentional infliction of emotional distress.
Plaintiff’s complaint also alleges that he (and his wife, who is not a party) was
humiliated by his being fired after public discussions at Village Council meetings. Although, by
23

Yeager was abrogated on other grounds by Welling v. Weinfeld, 113 Ohio St. 3d 464 (2007).

24

Franks does not allege that he was anything other than an at-will employee. Under Ohio law, “[u]nless otherwise
agreed, either party to an oral employment-at-will employment agreement may terminate the employment
relationship for any reason which is not contrary to law.” Mers v. Dispatch Printing Co., 19 Ohio St. 3d 100 (1985),
syllabus. Loss of one’s job will undoubtedly always cause some distress. That fact does not convert the loss into an
actionable tort.

24

plaintiff’s own testimony, most of the discussions took place in executive sessions of the Village
Council, by necessity, certain decisions must be made on the public record. This does not
constitute the tort of infliction of emotional distress, even though it undoubtedly was distressing
to plaintiff.
In his opposition brief, plaintiff argues that, in addition to this public humiliation,
defendants inflicted emotional distress upon him when they “had a police officer follow him,
tape-recorded his conversations without his knowledge, badgered him to retire, made disparaging
and hostile remarks about retirement and going to live on the farm, nitpicked his work day
schedule and time keeping procedures, reduced his pay, and then fired him[.]” (Opposition at
1354, emphasis in original.) These incidents, even if true, would not rise to the level of “extreme
and outrageous” conduct and no jury would disagree.

III. CONCLUSION
For the reasons set forth herein, summary judgment is granted in favor of the
defendants on all of plaintiff’s remaining claims.25

IT IS SO ORDERED.
Dated: September 18, 2013
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

25

Because of this determination, the Court need not address any question of immunity.

25