Brate v. Belcan Corporation

Filing 41

ORDER granting 24 defendant's Motion for Summary Judgment. This case is dismissed with prejudice at plaintiff's costs and this case is closed. Signed by Judge Herman J. Weber on 6/19/14. (mb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
AT CINCINNATI
LILLIE BRATE,
Plaintiff,
v.

Case No. 1:13-cv-5-HJW

BELCAN CORPORATION,
Defendant
ORDER
Pending is the defendant’s “Motion for Summary Judgment” (doc. no. 24),
which plaintiff opposes. Defendant has submitted proposed findings of fact and
conclusions of law, which plaintiff has highlighted as true, false, or irrelevant (doc.
no. 32). The Court held a hearing on June 11, 2014, at which counsel presented
oral arguments. Having carefully considered the record, including the parties’
briefs, exhibits, proposed findings, oral arguments, and applicable authority, the
Court will grant the motion for the following reasons:
I. Background and Procedural History
The following facts are undisputed. 1 Plaintiff Lillie Brate was born in 1938.
She began working for Belcan in 1994 (doc. no. 32, ¶ 1, Proposed Findings). She
worked for a time as an administrative assistant, and then as a recruiter. In 2002,
was promoted to “Team Leader” (also referred to as “Branch Manager” or “Branch
Leader”) of the staffing office in Fairfield, Ohio (¶ 2). In such position, she was
1

Plaintiff has red-lined as “disputed” various correct facts in the Proposed
Findings because she is disputing the legal implications of those facts, not the
facts themselves.
1

eligible to participate in the profit sharing bonus pool, which in some profitable
years, entitled her to as much as $75,000.00 in bonus pay. In early 2011, Brate’s
bonus potential decreased due to the loss of work from a large military contractor
while she was managing the Fairfield office (¶ 40). Belcan closed that office on
September 30, 2011, and Brate’s position as Team Leader ended at that time (¶ 3). 2
Two months before the office closed, Brate filed an age discrimination
lawsuit against her employer (¶ 4; see Brate v. Belcan, S.D. Ohio Case No.
1:11-CV-506, hereinafter “the 2011 lawsuit”). 3 In the 2011 suit, Brate complained
that her bonuses “were a fraction of what they had been,” that “the Fairfield office
has not been given new clients,” and that she was being replaced by a younger
person (doc. no. 1, ¶¶ 25, 29, 40-41, 2011 lawsuit). She alleged that this amounted
to age discrimination prohibited by 29 U.S.C § 623(a). The parties and their legal
2

Brate does not dispute the fact that the Fairfield office closed. She merely urges,
based on the testimony of Todd Cross, Belcan’s Director of Operations, that the
Fairfield office closed “only because its lease was running out.” This is not an
accurate summation of his testimony. Cross actually testified that they considered
closing various offices for various reasons (Cross Dep. at 40-41 “Q. ... why were
you considering closing it? A. That office was -- we had two offices within
approximately four or five miles of each other. They were too close together, and
neither one of them was doing very well financially at the time, and if we combined
them together, it would make a lot better financial sense. Q. The other office being
Hamilton? A. Correct. Q. Did you also consider closing Hamilton? A. We did.”).
Cross also noted that the Hamilton office was “newer.” In other words, the lease
expiration at Fairfield was just one of many factors considered. In any event, the
reason for the Fairfield office closure in 2011 is not a “material fact” in the present
case. Plaintiff’s red-lining creates no genuine dispute of material fact.
3

The Court takes judicial notice of Brate’s 2011 lawsuit, in which she indicated
that in January 2010, Belcan “lost some large accounts and had to lay off many of
[her con]temporaries. The Fairfield office’s hours and revenue dropped to the
lowest it had been” under her direction (doc. no. 1, ¶¶ 36-37, 2011 lawsuit).
2

counsel participated in a settlement conference with Magistrate Judge Bowman
(Proposed Findings, ¶ 5). On September 20, 2011, after being advised that the case
had settled, this Court (United States District Judge S. Arthur Spiegel presiding)
dismissed the case with prejudice. In its Order, the Court expressly retained
jurisdiction to enforce the settlement and gave the parties thirty days to “reopen
the action if settlement is not consummated” (see doc. no. 6, 2011 lawsuit). On
October 5, 2011, the parties memorialized their settlement in a written Confidential
Settlement Agreement and Release (“Settlement Agreement”), which included
agreed information about Brate’s new position as Area Recruiter, her
compensation, the geographic area of her assignments, and her new supervisor
(Proposed Findings, ¶ 11). 4
Specifically, the Settlement Agreement provided that Brate would work for
Belcan as an “Area Recruiter” from October 1, 2011 through September 30, 2013.” 5
It provided that “Brate shall be responsible for recruiting in the Greater Cincinnati,
Tri-State (OH, KY, IN) area, which will require ongoing travel throughout Butler,
Clermont, Hamilton, Warren, Boone, Campbell, Kenton, and Dearborn counties”
and that “Belcan shall reimburse Brate for her business mileage” (Id.). Per their
4

Although plaintiff “red-lines” this proposed finding (¶ 11), it accurately describes
the Settlement Agreement in general terms (see doc. no. 21-3). In any event, the
Court will rely on the actual document, rather than any description of it. Plaintiff’s
red-lining creates no genuine dispute of material fact.
5

Again, although plaintiff “red-lines” this proposed finding (¶ 7), the Settlement
Agreement expressly so indicates. At the June 11, 2014 hearing, plaintiff’s counsel
acknowledged this.
3

agreement, her salary would remain at $43,368 per year (¶ 12). Although Area
Recruiters are typically not entitled to profit sharing, Belcan agreed to make Brate
eligible to participate in the profit sharing bonus pool (¶¶ 39-42). No bonus amount
was specified or guaranteed (¶ 41).
Brate began her new job on October 1, 2011 (¶ 11). As the Fairfield office had
closed, Belcan provided her with a workspace in the Hamilton office (¶ 19). Belcan
offered her the office occupied by a previous Team Leader, but Brate declined that
office and requested an office in the back because it had a window (¶ 20). Belcan
gave Brate the office she requested. Per the Settlement Agreement, Todd Cross
supervised Brate and provided her with her “specific job responsibilities and
assignments” (¶ 27). He usually communicated with Brate via email (¶¶ 16-17).
Brate had no administrative or management duties regarding the Hamilton office
(¶ 21). As Area Recruiter, she was responsible for finding temporary employees for
customers within the territory set forth in the Settlement Agreement (¶ 15). 6 The
Hamilton employees were responsible for all office tasks, including answering the
phone and voicemail (Cross Dep. at 115-16). Cross instructed them not to bother
Brate with such tasks because Brate had other responsibilities and needed to
focus on her own job (Proposed Findings, ¶¶ 16, 23-24). 7 Although it was not her
6

Although Brate red-lines this proposed finding, she acknowledged such fact at
deposition (Brate Dep. at 52 “Q: And the job of recruiter, area recruiter, was to find
temps in these counties, correct? A. According to this, yes.”). Plaintiff’s red-lining
creates no genuine disputes of material fact.
7

Brate does not dispute the fact that Cross gave such instructions to the Hamilton
employees. She merely speculates about his possible motivation. Mere conjecture
4

job to do so, Brate admits that she wanted to manage the Hamilton office: “I guess
I just felt I was still managing. I had done it for so many years” (¶ 25, quoting Brate
Dep. at 47).
Although the Settlement Agreement did not obligate Belcan to do so, Belcan
provided Brate with a written job description in February of 2012 (¶¶ 27, 45).
Belcan asked Brate to travel to Dayton for one day on one occasion (¶ 35). 8 After
approximately five months at her new job, Brate took extended FMLA medical
leave on February 27, 2012 and never returned to work (¶ 57). She admits she
received all the benefits she was entitled to (Brate Dep. at 82 “Q. So you got your
benefits that were allowable per Belcan policy, correct? A. I did.”). She also
acknowledges that she was reimbursed for all her travel on the job. Brate does not
dispute that Belcan handled her “leave appropriately, and nothing about the
administration of her leave or benefits during the leave is part of her claims”
(Proposed Findings, ¶ 58, citing Brate Dep. at 83).
Brate hired new counsel, who entered an appearance in the case on May 17,
2012. Such counsel filed a “Motion to Reopen the Case to Enforce the Settlement,”
alleging that Belcan had breached the “assignment, bonus, and territory”
provisions of the Settlement Agreement (see doc. no. 8, motion in 2011 lawsuit).

about motivation creates no genuine dispute of material fact. Peters v. Lincoln
Elec. Co., 285 F.3d 456, 470 (6th Cir. 2002).
8

Brate acknowledged such fact at deposition (Brate Dep. at 36-37 “Q: You went to
Dayton on one occasion, correct? A: I did.”). She merely “disputes” the “legal
conclusion” that she could be asked to travel to Dayton per the Settlement
Agreement.
5

Specifically, Brate argued that Belcan had breached the contract by assigning her
to Dayton for one day, by allegedly “miscalculating” her bonus, and by giving her
a job description in February 2012 that (according to Brate) “greatly differed” from
her understanding of the responsibilities of an Area Recruiter. In her reply brief,
Brate also asserted for the first time that she had been “fraudulently induced” to
settle based on Belcan’s alleged statement that no “Branch Leader” positions
were available (doc. no. 15, reply in 2011 lawsuit). She asked the Court to
determine whether the settlement was “valid” but inconsistently sought only
specific enforcement rather than rescission. Shortly thereafter, Brate also filed
another EEOC charge (doc. no. 21-7 at 2) on June 7, 2012, alleging “age
discrimination and retaliation.” Brate indicates her new counsel drafted the charge
(Brate Dep. at 67). The charge repeated various allegations from her motion to
enforce the Settlement Agreement, including that Belcan had “added areas” to her
territory and “miscalculated” her bonus.
After full briefing, United States District Judge S. Arthur Spiegel held a
hearing on October 2, 2012. He then referred the matter to the Magistrate Judge,
who subsequently recommended that Brate had not shown any breach of the
Settlement Agreement and that plaintiff’s motion should be denied. Plaintiff filed
no objections. Upon review, Judge Spiegel found that the Report and
Recommendation was “thorough, well-reasoned, and correct” and on December
18, 2012, entered an Order adopting and affirming the report in its entirety (doc. no.
20, 2011 lawsuit).
6

The EEOC mailed Brate a “Dismissal and Notice of Suit Rights” on October
29, 2012 (doc. no. 21-7). On January 3, 2013, Brate filed a nine-count federal
complaint, alleging 1) retaliation under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq.; 2) retaliation under Ohio R.C. § 4112.99; 3) age
discrimination under the ADEA; 4) age discrimination under Ohio R.C. § 4112; 5)
intentional misrepresentation; 6) negligent misrepresentation; 7) common law
fraud; 8) breach of the duty of good faith and fair dealing; and 9) intentional
infliction of emotional distress (doc. no. 1, “2013 lawsuit”). Many of the facts and
issues alleged as a basis for such claims had already been raised in the plaintiff’s
motion to enforce the Settlement Agreement. 9
In her 2013 complaint, Brate alleges that her “bonus potential” had been
reduced in 2009-2012 (¶ 19), that Belcan President Leigh Ann Pagnard had
represented at the settlement conference that Belcan “had nothing available for
[Brate] except an Area Recruiter position” (¶ 26), and that after accepting such
position, Brate was “not given an office” and instead was “isolated at the back of
the office” (¶¶ 30-31). She alleges that in February of 2012, Belcan gave her a job
description that listed duties that “could not possibly be completed by one
person” (¶ 46) and that Belcan “added areas” to her territory that were not
included in the Settlement Agreement (¶ 50). She complains that Cross and
Pagnard made several rude comments to her (¶¶ 32, 38) and that on February 7,
2012, she was assigned to the Dayton office (¶ 49). She alleges that Belcan
9

When plaintiff filed this 2013 lawsuit, she failed to indicate the existence of any
“related case” on her cover sheet. The 2011 case is clearly “related.”
7

“promoted a younger woman to be the Area Team Leader” in the downtown office
and “hired a younger woman as Team Leader” of a “new” office (¶¶ 42-43). She
complains that she “was never offered these positions” (¶ 44). She alleged she
“suffers from severe depression, stress, anxiety and hypertension” (¶ 51), that her
physician had “placed her on medical leave” (¶ 52), and that her “physician has
not yet released her to return to work” (¶ 54).
The parties have completed discovery, and Belcan’s motion for summary
judgment is fully briefed and ripe for consideration.
II. Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure provides in relevant part:
A party may move for summary judgment, identifying
each claim or defense or the part of each claim or
defense on which summary judgment is sought. 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.
Rule 56(c)(1) further provides that:
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 . . . 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.
The moving party bears the burden of proving that no genuine issue of
material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). The court must construe the evidence and draw all reasonable
inferences in favor of the nonmoving party. Id. at 587. In doing so, courts must
8

distinguish between evidence of disputed material facts and mere “disputed
matters of professional judgment,” i.e. disagreement as to legal implications of
those facts. Beard v. Banks, 548 U.S. 521, 529 30 (2006). On summary judgment
review, the court must determine whether the evidence presents a sufficient
dispute of material fact so as to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986). A party opposing summary judgment
“may not rest upon the mere allegations or denials of his pleading, but ... must set
forth specific facts showing that there is a genuine issue for trial.” Id. at 248.
III. Discussion
A. Res Judicata (Claim Preclusion) and Collateral Estoppel (Issue Preclusion)
While the formation and enforceability of a settlement agreement are
covered by state contract law, Bamerilease Capital Corp. v. Nearburg, 958 F.2d
150, 152 (6th Cir.), cert. denied, 506 U.S. 867 (1992), federal law governs whether a
party is precluded from relitigating an issue or claim that was previously decided
by a federal court in a federal-question case. EB–Gran Prods v. Warner, 242 Fed.
Appx. 311, 312 (6th Cir. 2007) (citing Blonder–Tongue Labs., Inc. v. Univ. of Ill.
Found., 402 U.S. 313, 324 n. 12 (1971) (“It has been held in non-diversity cases
since Erie R. Co. v. Tompkins, that the federal courts will apply their own rule of
res judicata.”); Restatement (Second) of Judgments § 87 (“Federal law determines
the effects under the rules of res judicata of a judgment of a federal court.”).

9

Although Brate settled her 2011 lawsuit for age discrimination, and although
this Court has previously considered and ruled on Brate’s motion to enforce the
Settlement Agreement, Brate is now attempting in this 2013 lawsuit to reassert
many of the same facts, issues, and arguments. Brate “disputes” various matters
that have already been litigated in the 2011 lawsuit. For example, Brate alleges that
her “bonus potential” was reduced in 2009-2012. Belcan points out that the
reduction in bonus was part of the 2011 lawsuit which was settled (doc. no. 24 at 6,
19), that all claims up to the date of settlement were released (Id. at 7), and that the
prior claims were fully and finally resolved (Id. at 14-15).
Brate also repeatedly complains that the job description given to her in
February 2012 “included more duties than one person could fulfill,” that Belcan
“added” geographical areas to her territory that were not specified in the
Settlement Agreement, and that Belcan “expected more travel” from her than
previously agreed (doc. no. 32, Highlighted Proposed Findings, ¶¶ 10, 11, 15, 22,
26, 30-32). This Court previously considered these issues and found no material
breach of the Settlement Agreement. Belcan points out that plaintiff is attempting
to resurrect settled issues (doc. no. 24 at 19-20), that the Court previously rejected
the plaintiff’s allegations of a breach of the Settlement Agreement based on the
same facts (Id. at 25), and that plaintiff’s assignment as Area Recruiter complied
with the Settlement Agreement (Id. at 26). Belcan asserts that this 2013 lawsuit is
another attempt by Brate “to unwind the Settlement Agreement because she
regretted her decision to accept the position of Area Recruiter” (doc. no. 36 at 5).
10

Of course, it is well-settled that Awhere the parties enter into a settlement
agreement in the presence of the court, such an agreement constitutes a binding
contract ... Neither a change of heart nor poor legal advice is a ground to set aside
a settlement agreement.@ Smith v. ABN AMRO Mortg. Group Inc., 434 Fed.Appx.
454, 463-64 (6th Cir. 2011), cert. denied, 132 S.Ct. 1799 (2012).
The familiar concepts of res judicata (claim preclusion) and collateral
estoppel (issue preclusion) bar the relitigation of claims and issues that have
previously been litigated and decided (or that could have been advanced in the
previous litigation). Under claim preclusion, a final judgment forecloses
“successive litigation of the very same claim, whether or not relitigation of the
claim raises the same issues as the earlier suit.” New Hampshire v. Maine, 532 U.S.
742, 748 (2001); see also, In re Alfes, 709 F.3d 631, 638 (6th Cir. 2013) (holding that
a final judgment on the merits precludes the parties from relitigating matters that
were or could have been raised in a prior action). For claim preclusion to apply,
four elements must be satisfied: (1) a final decision on the merits by a court of
competent jurisdiction; (2) a subsequent action between the same parties; (3) an
issue in the subsequent action which was litigated or which should have been
litigated in the prior action; and (4) an identity of the causes of action. (Id.).
Issue preclusion bars successive litigation of a fact or legal issue that was
“actually litigated and resolved in a valid court determination essential to the prior
judgment, even if the issue recurs in the context of a different claim.” New
Hampshire, 532 U.S. at 748–749; Taylor v. Sturgell, 553 U.S. 880, 891 (2008). For
11

issue preclusion to apply, four elements must be satisfied: (1) the precise issue
was raised and litigated in the prior proceeding; (2) the determination of the issue
was necessary to the outcome of the prior proceeding; (3) the prior proceeding
resulted in a final judgment on the merits; and (4) the party against whom estoppel
is sought had a full and fair opportunity to litigate the issue in the prior
proceeding. Ark. Coals, Inc. v. Lawson, 739 F.3d 309, 320-21 (6th Cir. 2014);
Georgia-Pacific Consumer Products LP v. Four-U-Packaging, Inc., 701 F.3d 1093,
1098 (6th Cir. 2012). If a court decides the merits of an issue, a plaintiff may not
relitigate that issue in a subsequent suit. Pram Nguyen ex rel. U.S. v. City of
Cleveland, 534 Fed.Appx. 445, 452 (6th Cir. 2013). “Where a litigant brings repeated
actions based upon the same operative facts, issue preclusion may still properly
apply despite a change in legal theory.” Georgia-Pacific, 701 F.3d at 1098.
On the other hand, when allegedly unlawful conduct occurs after a case has
been decided, that conduct gives rise to a new cause of action. Lawlor v. Nat’l
Screen Service Corp., 349 U.S. 322, 327 (1955). Claim preclusion usually will not
prevent the plaintiff from asserting a cause of action that arose after the first suit
was decided. Cellar Door Prods., Inc. of Mich. v. Kay, 897 F.2d 1375, 1378 (6th Cir.),
cert. denied, 498 U.S. 819 (1990); Pram Nguyen, 534 Fed.Appx. at 452 (observing
that if a cause of action did not exist yet, it could not have been brought in the first
suit). Nonetheless, when a “defendant continu[es] on the same course of conduct,
which has previously been found by a court to be proper, a subsequent court must

12

conclude that the plaintiff is simply trying to relitigate the same claim.” Dubuc v.
Green Oak Twp., 312 F.3d 736, 751 (6th Cir. 2002).
Here, the record reflects that the parties settled the plaintiff’s prior age
discrimination claim. When Brate moved “to enforce” the settlement, she claimed
that Belcan had breached the settlement contract in various ways (i.e., by “adding
areas” to her territory, by “miscalculating” her profit-sharing bonus). She alleged
that she was being retaliated against post-settlement and that she had been
“fraudulently induced” to settle because Belcan had allegedly misrepresented that
the Area Recruiter job was the only job available at that time. The Magistrate Judge
issued a thorough “Report and Recommendation” specifically rejecting all these
assertions and finding that Brate had shown no material breach of the Settlement
Agreement. Brate may not relitigate her age discrimination claim from her 2011
suit here, nor may she relitigate previously-decided issues raised by her motion to
enforce the Settlement Agreement.
The Magistrate Judge specifically addressed Brate’s contentions that
Belcan had fraudulently induced her to settle by misrepresenting that only the
Area Recruiter job was available and that Belcan had “retaliated” against her
during the five months she worked as an Area Recruiter. The Magistrate Judge
found no breach due to “no fraudulent inducement” and “no breach based upon
plaintiff’s new allegation of post-settlement retaliation” (doc. no. 19 at 9, 2011

13

lawsuit). 10 The Magistrate Judge recommended that Brate’s motion be denied, and
Brate filed no objections. Judge Spiegel agreed with the Magistrate Judge’s
analysis and denied the plaintiff’s motion. Brate did not appeal.
Plaintiff’s 2011 claims were settled. Plaintiff had a first bite of the apple
(settlement of the 2011 lawsuit), a second bite of the apple (the motion to enforce
the Settlement Agreement), and to a large extent, is now impermissibly seeking a
third bite of the apple (2013 lawsuit). Belcan correctly asserts that Brate may not
relitigate her 2011 age discrimination claim (doc. no. 24 at 6 “While Brate
repeatedly refers in the Complaint and her deposition to alleged incidents she
raised in her 2011 lawsuit, those claims were settled and are not part of this
litigation.”).
To the extent plaintiff is asserting any “new” claims of age discrimination
and retaliation based on post-settlement facts, Brate appears to be basing her
claims largely on issues that were raised in her motion to enforce the Settlement
Agreement. Judge Spiegel has already ruled on that motion and found no breach
of the Settlement Agreement. Plaintiff’s arguments for enforcement of the
Settlement Agreement are closely related (at times, identical) to her arguments in
support of her post-settlement claims of discrimination and retaliation. In any
event, the Court will not belabor the preclusion analysis any further. Even
assuming that plaintiff may present any “new” (post-settlement) claims here, the
evidence reflects no genuine disputes of material fact regarding those claims.
10

The Magistrate Judge addressed plaintiff’s allegations of retaliation but
correctly noted that no “retaliation claim” was before the Court (doc. no. 19 at 13).
14

B. Summary Judgment Review of 2013 Claims
1. Counts 1 and 2: Alleged Retaliation
In Count 1, plaintiff alleges retaliation under the ADEA (doc. no. 1, ¶¶ 59-65).
In Count 2, she alleges retaliation under Ohio R.C. § 4112.99, which authorizes a
cause of action for violation of Ohio's civil rights laws (¶¶ 66-72). The ADEA
provides that it shall be unlawful for an employer “to discriminate against any ...
employees or applicants for employment ... because such individual ... has
opposed any practice made unlawful by this section” or who “has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding,
or litigation under this chapter.” 29 U.S.C. § 623(d). Similarly, Ohio law provides
that “it shall be an unlawful discriminatory practice ... for any employer, because
of the ... age ... of any person, to discharge without just cause, to refuse to hire, or
otherwise to discriminate against that person with respect to hire, tenure, terms,
conditions, or privileges of employment, or any matter directly or indirectly related
to employment.” Ohio R.C. § 4112.02. These claims may be considered together.
To establish a prima facie case of retaliation, Brate must show that: (1) she
engaged in protected activity; (2) Belcan knew of the protected activity; (3) Belcan
then took an adverse, retaliatory employment action against her, and (4) there was
a causal connection between the protected activity and the adverse action. Hunter
v. Sec’y of U.S. Army, 565 F.3d 986, 995 (6th Cir. 2009); Imwalle v. Reliance Med.
Prods., Inc., 515 F.3d 531, 544 (6th Cir. 2008). Brate has failed to make out a prima
facie case because she has not shown that she suffered any adverse action after
15

settling her 2011 case and resuming work as an Area Recruiter. She was not fired
or demoted, rather, she took extended medical leave on February 27, 2012 and
never returned. In the five months Brate worked as Area Recruiter, Belcan never
criticized her performance, never issued her any written or verbal warnings, and
never expressed any demands or dissatisfaction with her work as an Area
Recruiter (Brate Dep. at 72 “Q. You never received any written warning when you
were area recruiter, correct? A. No. Q. And Todd Cross never gave you a verbal
warning about your performance? A. No”). Brate never returned from medical
leave, and her contractual two-year term expired. She was not discharged.
Her remaining complaints are largely trivial and do not amount to “adverse
actions.” Brate was not forced to take a less desirable office. Although she gave
the misleading impression in her complaint that she was deliberately “isolated” in
a “back office” by her employer, it is undisputed that she requested that office
because it had a window. As the evidence refutes her allegation, Brate concedes in
the Highlighted Proposed Findings (¶¶ 19-20, 70) that she “is not relying on the
location of her office to establish any of her claims.”
Brate was not forced to cover “added areas” -- she admits she never went to
Lexington, Kentucky, and went to Dayton for only one day. Dayton is within the
“Tri-State area” (OH/KY/IN) described in the Settlement Agreement, even if it was
not listed as an area that would require “ongoing travel.” Belcan points out that it
is undisputed that Dayton is actually closer than some of the listed areas for
ongoing travel (Proposed Findings, ¶ 36). Brate admitted that she never traveled to
16

Lexington in her job as Area Recruiter (Brate Dep. at 37; Proposed Finding ¶ 33
“Brate admits she never traveled to Lexington.”).
Although she acknowledges that she was never disciplined while working
as Area Recruiter, she alleges that Pagnard and Cross made several rude
comments to her in late 2011 (doc. no. 1, ¶¶ 32, 38, 2013 case). They deny making
any such comments. Belcan points to a lunch date and several emails with Brate
as evidence of a cordial working relationship over the following three months. It is
undisputed that Brate saw Pagnard only twice after taking over as Area Recruiter
and that most of Brate’s contact with Cross was via email (Proposed Findings, ¶¶
16-17, 52). Even assuming that any offensive comments were made during this
minimal personal contact, plaintiff has failed to link such comments with any
adverse action. The alleged comments were isolated and did not concern any
decision to fire, hire, or discipline Brate. The alleged comments are a mere
“scintilla” of evidence that is insufficient to withstand summary judgment.
Plaintiff also complains that Cross told Hamilton employees not to bother
Brate with administrative tasks like answering phones and checking voicemail.
These tasks were admittedly not part of Brate’s job as Area Recruiter. No
reasonable inference of “retaliation” can be drawn from the fact that Cross
reasonably expected employees to do their own jobs. See Scott v. Harris, 550 U.S.
372, 381 (2007) (emphasizing that on summary judgment review, a court must draw
reasonable inferences in favor of the nonmoving party only “to the extent
supportable by the record”). Belcan aptly points out that it “cannot be found to
17

have retaliated or discriminated against Brate by simply asking her to do the job
the parties agreed to at the mediation and in the 10/5/11 Settlement Agreement”
(doc. no. 36 at 5). In sum, none of Brate’s petty complaints amount to any sort of
“adverse action.” 11 See Hunter, 565 F.3d at 995 (affirming summary judgment
because plaintiff’s retaliation claims “were of a de minimus nature and amount to
nothing more than petty slights and minor annoyances”). Belcan is entitled to
summary judgment on the retaliation claims.
2. Counts 3 and 4: Alleged Age Discrimination
Plaintiff also alleges age discrimination under the ADEA (doc. no. 1, ¶¶
73-78) and Ohio R.C. § 4112 (¶¶ 79-84). The ADEA provides that it shall be unlawful
for an employer “to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such individual's age.” 29
U.S.C. § 623(a)(1). The parties agree that the federal and state claims may be
considered together (Proposed Findings, ¶ 74).
To establish a prima facie case based on a failure to hire/promote, plaintiff
must show: (1) she is over forty; (2) she applied for and was qualified for a
job/promotion; (3) she was considered for and denied the promotion; and (4) other
employees of similar qualifications who were not members of the protected class
received promotions at the same time her request for promotion was denied. Warf
v. U.S. Dept. of Veterans Affairs, 713 F.3d 874, 879 (6th Cir. 2013). The burden then
11

In fact, plaintiff describes the tasks assigned to other employees as “menial”
(2011 lawsuit, doc. no. 15-1 at ¶ 5). This does not amount to “retaliation.”
18

shifts to the defendant to provide a legitimate, nondiscriminatory reason for its
actions. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Upon doing
so, the burden shifts back to the employee to show that the reason is pretext for
discrimination. Id. The burden of persuasion remains on plaintiff at all times to
demonstrate that age was the Abut-for@ cause of the employer's adverse action.
Gross v. FBL Fin. Servs. Inc., 129 S.Ct. 2343, 2351 n. 4 (2009).
The record does not reflect that Brate’s age was ever mentioned when she
worked as an Area Recruiter, and Brate proceeds under the burden-shifting
framework for cases based on circumstantial evidence. She indicates that she
bases her age discrimination claims on the fact that she was not given the Team
Leader position at the Middletown branch (doc. no. 32, Proposed Findings, ¶¶ 44,
49; see also, doc. no. 31 at 18-19). Although Brate suggests that Belcan should
have offered her this job at the Middleton office while she was Area Recruiter, she
acknowledges that she did not apply for such position (Brate Dep. at 67 “Q. Did
you ask Todd [Cross] or Leigh Ann [Pagnard] about whether or not that it was true
that an office was opening? A. I did not. Q. You didn't inquire about the possibility
of being a team leader at that office? A. I did not.”). See Anthony v. BTR Auto.
Sealing Sys., Inc., 339 F.3d 506, 515 (6th Cir. 2003) (a prima facie case requires that
plaintiff actually apply for the position); Thompson v. UHHS Richmond Hts. Hosp.,
Inc., 372 Fed. Appx. 620, 624 (6th Cir. 2010) (plaintiff did not actually apply for the
position). Although Brate complains that “younger” persons -- Jessica Vockell
and Kory Steinman -- were “promoted” in 2012, Belcan aptly points out that their
19

positions would have been a demotion for Brate with substantially less pay (doc.
no. 36 at 7, fn. 5). Belcan points out that their salaries increased to approximately
$35,000 (doc. no. 24 at 21). Steinman worked in the downtown Cincinnati office and
was promoted in 2012 to “Manager of Staffing Services” (not “Team Leader” as
alleged by Brate). Brate admitted at deposition that she did not even know
Vockell’s title or responsibilities (Brate Dep. at 62-62). Brate has not pointed to
evidence that she was discriminated against (i.e. “treated differently”) on such
basis.
Even assuming that Brate could meet her prima facie burden, Ms. Pagnard
explained that Brate had agreed to take the Area Recruiter job and that Belcan
management then fully complied with the Settlement Agreement. Brate has not
shown that this proffered reason is a “mere pretext.” It is undisputed that Belcan
continued to employ Brate through the duration of the Settlement Agreement,
through September 30, 2013 (Proposed Findings, ¶ 59) and that Belcan held her
job open and did not replace Brate’s position after her contract ended (¶ 60). It is
undisputed that Belcan “never replaced her with someone younger” (Id.). The
record is devoid of evidence reflecting any genuine disputes of material fact.
Plaintiff’s age discrimination claims are subject to summary judgment .
3. Counts 5-7: Alleged Misrepresentation and Fraud
Brate also alleges intentional misrepresentation in Count 5 (¶¶ 85-89),
negligent misrepresentation in Count 6 (¶¶ 90-94), and fraud in Count 7 (¶¶ 95-100).

20

Brate acknowledges that her negligent misrepresentation claim should be
dismissed and that the remaining fraud and intentional misrepresentation claims
are “interchangeable” (doc. no. 31 at 8, fn.2).
Under Ohio law, fraud/misrepresentation claims require proof of the
following elements: (1) a representation, or, where there is a duty to disclose,
concealment of a fact, (2) which is material to the transaction at hand, (3) made
falsely, with knowledge of its falsity, or with such utter disregard and recklessness
as to whether it is true or false that knowledge may be inferred, (4) with the intent
of misleading another into relying upon it, (5) justifiable reliance upon the
representation or concealment, and (6) a resulting injury proximately caused by
the reliance. Whelan v. Vanderwist of Cinc., 2011 WL 6938600, ¶ 37 (Ohio App. 11
Dist.) (quoting Cohen v. Lamko, Inc., 10 Ohio St.3d 167, 169 (1984)); Carpenter v.
Scherer-Mt. Ins. Agency, 135 Ohio App.3d 316, 327 (Ohio App. 4 Dist. 1999) (citing
Burr v. Bd. of Cty. Commis. of Stark Cty., 23 Ohio St.3d 69, 73 (1986)). 12
The parties expressly agreed in the Settlement Agreement that Brate would
work for two years as an Area Recruiter. She now complains that she “relied on
Belcan’s misrepresentation that there were only area recruiter positions available”
(doc. no. 32, ¶ 10). This argument was previously considered and rejected by this
Court when it found no breach of the Settlement Agreement. Additionally, to the

12

“A negligent misrepresentation claim does not lie for omissions: there must be
an affirmative false statement.” Wright v. State Farm Fire and Casualty Co., 2013
WL 2354048, *3 (S.D.Ohio), aff’d by 2014 WL 627171 (6th Cir. (Ohio)) (citing Martin
v. Ohio State Univ. Found., 139 Ohio App.3d 89, 104 (2000)).
21

extent Brate makes allegations about what was said at the 2011 settlement
conference, Civil Local Rule 16.3(c) provides that statements made in settlement
negotiations (including statements by parties, counsel, and judicial officers) are
confidential and “not admissible to prove liability for or invalidity of a claim.”
Similarly, Ohio R.C. § 2710.03 provides that mediation communications are
privileged and inadmissible as evidence. See, e.g., Nachar v. PNC Bank, 901
F.Supp.2d 1012, 1018 (N.D.Ohio 2012) (holding oral discussions between parties
during mediation were privileged and confidential). Plaintiff does not argue for any
exception and merely suggests that a jury “could infer that Brate would not have
taken the area recruiter position if Belcan had not misrepresented available
positions” (doc. no. 32, ¶ 65). Belcan points out that “allowing assumptions of
what might have been discussed [at a mediation], in lieu of evidence, does not
meet plaintiff’s burden of proof” and that “a jury cannot be allowed to assume
facts that do not exist” (doc. no. 36 at 7-8). The Sixth Circuit Court of Appeals has
repeatedly explained that Aa nonmoving party may not avoid a properly supported
motion for summary judgment by simply arguing that it relies solely or in part
upon credibility considerations or subjective evidence.@ Lyons v. Metr. Gov. of
Nashville and Davidson Cty., 416 Fed.Appx. 483, 490 (6th Cir. 2011) (quoting Cox v.
Ky. DOT, 53 F.3d 146, 150 (6th Cir. 1995)); Laws v. HealthSouth N.Ky. Rehab. Hosp.,
2011 WL 5187320, *26 (E.D.Ky.), aff’d by 508 Fed. Appx. 404 (6th Cir. 2012).
Even if Brate could overcome the procedural obstacles of issue preclusion
and settlement confidentiality, the record reflects no genuine disputes of material
22

fact as to these claims. At deposition, Brate admitted that Belcan representatives
made no statement or representation to her that the Area Recruiter position was
the only position available at that time (Brate Dep. at 14-17). Brate admitted at
deposition that she had no conversations with Cross, Pagnard or anyone at
Belcan about other available jobs (Brate Dep. at 14 “Q. . . at the mediation do you
recall whether you had any direct conversations with Leigh Ann [Pagnard]? A. I
don't recall having any” and at 15 “Q. This was not something that you spoke
directly to Leigh Ann Pagnard about? A. No.” and at 17 “Q. From the time you
found out that the Fairfield office was going to close until you went to that
settlement conference that we just talked about in September . . . had you had any
conversations with Todd Cross about other jobs for you? A. I don't recall any. Q.
Any conversations with Leigh Ann Pagnard from the time you found out Fairfield
was closing until we got to the settlement conference? A. I don't recall any at this
time. Q. Do you recall with anybody else other than Todd or Leigh Ann? This is
before the settlement conference. A. No”). Brate acknowledged that she had no
discussions about other jobs prior to the settlement conference (Brate Dep. at 18).
Cross and Pagnard both testified at deposition that they were unaware of any
other Team Leader positions being open at the time of the mediation (Cross Dep.
at 45, 50, 74-84; Pagnard Dep. at 74, 93).
Belcan correctly asserts that there is no evidence of any misrepresentation
by Belcan (doc. no. 24 at 11). Belcan points out that evidence of positions that
became available in the months and years after settlement of the 2011 case does
23

not establish any element of fraud, intentional misrepresentation, or negligent
misrepresentation. Plaintiff has not pointed to any concealment of facts that
Belcan had any duty to disclose. Belcan correctly points out that it had no
obligation to offer her any position at the mediation (doc. no. 36 at 9). Brate has not
pointed to any evidence that Belcan made any promises it had no intention of
fulfilling. See Galmish v. Cicchini, 90 Ohio St.3d 22, 29–30 (2000) (plaintiff must
prove that she was “fraudulently induced” into entering an agreement by promises
that the promising party had no intention of fulfilling). In fact, the evidence
indicates the opposite. Belcan followed the Settlement Agreement and fulfilled its
contractual terms. Summary judgment must be entered “against a party who fails
to make a showing sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Belcan is entitled to summary
judgment on these claims (Counts 5-7).
4. Count 8: Alleged Breach of Duty of Good Faith and Fair Dealing
In Count 8, plaintiff alleges “breach of the duty of good faith and fair
dealing”(¶¶ 101-106). Defendant aptly points out that while contracts have an
implied good faith and fair dealing requirement, Ohio law does not recognize this
as a separate cause of action. Plaintiff concedes this (doc. no. 31 at 8, fn.2) and
acknowledges that dismissal of this claim is appropriate (doc. no. 32, ¶¶ 80-81).
Plaintiff has already litigated the alleged “breach” of the Settlement Agreement.
5. Count 9: Alleged Intentional Infliction of Emotional Distress
24

Finally, Brate asserts a claim of “intentional infliction of emotional distress”
(doc. no. 1, ¶¶ 107-116). A plaintiff must prove four elements: 1) the actor either
intended to cause emotional distress or knew or should have known that actions
taken would result in serious emotional distress to the plaintiff; 2) the actor's
conduct was so extreme and outrageous, that it went beyond all possible bounds
of decency and that it can be considered utterly intolerable in a civilized
community; 3) the actor's actions were the proximate cause of the plaintiff's
psychic injury; and 4) the mental anguish suffered by the plaintiff is serious and of
a nature that no reasonable person can be expected to endure it. Miller v. Currie,
50 F.3d 373, 377 (6th Cir. 1995).
Belcan asserts that Brate has not alleged or pointed to any evidence of
“extreme and outrageous” behavior. Brate relies largely on her own allegation that
Cross and Pagnard made several offensive comments to her. They deny making
any such comments and point to the professional and friendly tone of their
contemporaneous emails. Even assuming for purposes of summary judgment that
such comments were actually made, they do not rise to the “extreme and
outrageous” level necessary to state an actionable claim of intentional infliction of
emotional distress under Ohio law. See Hanly v. Riverside Methodist Hosp., 78
Ohio App.3d 73, 82 (1991) (the alleged conduct must be “extreme and
outrageous”); Sinclair v. Donovan, 2011 WL 5326093, *11 (S.D.Ohio) (“without an
allegation of conduct that, as a matter of law, is extreme and outrageous, plaintiff's
claim must be dismissed”). It is not enough that a defendant intended to inflict
25

emotional distress or even that his conduct has been characterized by malice.
“Liability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Yeager v. Local Union 20, 6 Ohio St.3d 369, 374-75 (1983), abrogated
by, Welling v. Weinfeld, 113 Ohio St.3d 464 (2007). “Liability clearly does not
extend to mere insults, indignities, threats, annoyances, petty oppressions, or
other trivialities” Id. (quoting from Restatement of the Law 2d, Torts 2d, § 46, and
comment (d), as adopted by the Ohio Supreme Court); Alahverdian v. Grebinski,
2014 WL 2048190, *15 (S.D.Ohio) (“It is the rare case that reaches the very high bar
of showing ‘extreme and outrageous’ conduct.”). Summary judgment is
appropriate here.
IV. Conclusion
Plaintiff has improperly attempted to reassert various issues that the Court
has previously ruled on and that are precluded from relitigation here. Even
assuming that plaintiff has asserted new claims (based on post-settlement
conduct) that are not barred, and viewing the evidence (and any reasonable
inferences) in the light most favorable to plaintiff for purposes of summary
judgment, there are simply no genuine disputes of material fact in this case for a
jury to determine. Belcan is entitled to summary judgment.

26

Accordingly, the defendant’ “Motion for Summary Judgment” (doc. no. 24)
is GRANTED; this case is DISMISSED with prejudice at plaintiff’s costs and
TERMINATED from the docket of this Court.
IT IS SO ORDERED.
s/Herman J. Weber
Herman J. Weber, Senior Judge
United States District Court

27