Fierst v. Ohio Attorney General's Office

Filing 45

ORDER denying 27 Motion for Summary Judgment. Signed by Judge Susan J. Dlott on 5/4/17. (wam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. 1:15-cv-00649

:
:
:
Plaintiff,
:
:
v.
:
OHIO ATTORNEY GENERAL’S OFFICE, :
:
:
Defendant.
:
DAVID FIERST,

Judge Susan J. Dlott
ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT

This matter, a civil action brought by an attorney against his former employer, is before
the Court on Defendant’s Motion for Summary Judgment. (Doc. 27.) Plaintiff has filed a
memorandum in opposition (Doc. 37), to which Defendant has replied (Doc. 43). For the
reasons that follow, Defendant’s Motion will be DENIED.
I.

BACKGROUND1

A. Generally
The Office of the Ohio Attorney General (“OAG”) has nearly 30 sections that serve Ohio
citizens. Ohioans of all kinds—families, taxpayers, consumers, veterans, crime victims, and
more—are touched by the work of the OAG. Attorneys who work for the OAG, known as
Assistant Attorneys General (“AAGs”), are at-will employees.
In 2007, David Fierst was hired as Managing Attorney in the Cincinnati regional office.
Part of his work included civil commitment hearings for the Health and Human Services
(“HHS”) section, where he advocated on behalf of the Ohio Department of Developmental
1

Except as otherwise indicated, background facts are drawn from Defendant’s Proposed Undisputed Facts (Doc. 271 at PageID 1222–37) to the extent those facts are admitted in Plaintiff’s response thereto (Doc. 37-1 at PageID
2642–48). Where the parties do not expressly agree, the Court cites to that portion of the record providing support
for the statement.

1

Disabilities (“DODD”). Fierst’s role as Managing Attorney was short-lived, however. In
October of that same year, he was demoted to a staff AAG2 and reassigned to the Workers’
Compensation section in Columbus. Fierst transferred back to Cincinnati in May 2008. In
addition to handling workers’ compensation matters in Cincinnati, he resumed doing the
commitment work for HHS. Fierst was terminated on July 17, 2015. (Madden Decl., Doc. 27-4
at PageID 1303 (¶ 19).)
During the relevant time period, James Barnes served as the Workers’ Compensation
Section Chief in Columbus. Before Barnes instituted a “team” concept in Cincinnati, Fierst
reported to Steve Fixler, who also worked in Cincinnati and was the head of the unit. (Fixler
Dep., Doc. 24 at PageID 1034 (6:9–15).) Fixler, in turn, reported to Barnes. (Id. at PageID
1131–35 (6:16–7:3).) Approximately two years before his termination, Fierst worked under
James Carroll, one of two team leaders in the Cincinnati unit. (Carroll Dep., Doc. 25 at PageID
1097 (9:13–22).) Carroll reported both to Fixler, as unit chief, and Chris Wagner, the Managing
Attorney of the Cincinnati regional office. (Id. at PageID 1096–97 (8:20–9:2); Wagner Dep.,
Doc. 36 at PageID 2546 (9:8–17).) Wagner reported to Mary Mertz, who, as First Assistant
Attorney General, reported to Attorney General Mike DeWine. (Wagner Dep., Doc. 36 at
PageID 2567 (30:15–16); Mertz Dep., Doc. 19 at PageID 401–02 (8:16–9:2).) Attorneys in the
Cincinnati unit received assignments, in most instances, from their Section Chief rather than
from the Managing Attorney. (Wagner Dep., Doc. 36 at PageID 2549–50 (12:19–13:11).)
The Workers’ Compensation section nominally is funded through the Bureau of
Workers’ Compensation (“BWC”) and the Industrial Commission (“Commission”). (Murniecks
Decl., Doc. 27-6 at PageID 1341 (¶ 3).) In theory, these two clients are supposed to fund 100%

2

Fierst’s pay rate remained the same. As discussed infra, throughout his employment Fierst consistently was one of
the highest paid attorneys in the Workers’ Compensation section.

2

of the section’s operating costs. (Id.) Shortfalls occur, though, when the expenses of the section
exceed the revenue from the BWC and the Commission. (Id. at PageID 1342 (¶ 6).) Such was
the case in fiscal year 2014, when the combined expenses were $8,673,449.26 and the revenue
received was $8,335,186.33, and in fiscal year 2015, when the combined expenses were
$8,670,486.67 and the revenue received was $8,375,322.42. (Id.)
B. Cincinnati Bar Association Speaking Engagement
On October 16, 2013, Barnes learned that Fierst had agreed to participate in a program
titled “Workers’ Compensation Law Update” that was to be presented by the Cincinnati Bar
Association Workers’ Compensation Committee the following December 5. (Barnes Decl., Doc.
27-2 at PageID 1239 (¶ 6), 1243–46.) Fierst was listed as an Assistant Attorney General and was
to give the “BWC Perspective” on the subject of “Trial Procedures and Tactics.” (Id. at PageID
1245.) In response, Barnes emailed Fierst, saying “Dave, prior to the seminar, I would like to
see [sic] copy of any written material you intend to submit.” (Id. at PageID 1243.) He also
emailed Fixler, asking “Who approved Dave to give [sic] presentation on behalf of the office at
this seminar?” (Id. at PageID 1244.)
Fierst apologized to Barnes for “not getting permission in advance” to participate,
explaining “[h]ad I known of this requirement, I would have been happy to do so and I certainly
in no way meant any disrespect to you.” (Id. at PageID 1247.) He also stated that he would
advise the bar association that he would be unable to participate. (Id.) Barnes replied:
I will leave it [sic] you as to whether to cancel with the bar association. It has
always been a policy of the office and section to give prior notification when
someone is considering a presentation on behalf of the office or section. The
reason is to insure that the topic is appropriate and consistent with office/section
practice, policy, procedure, etc. Prior notice allows us to review and consider the
material to be presented and the target audience. Prior to my own presentations I
do the same with the front office. In addition, the brochure states that your
presentation will be giving a ‘BWC Perspective”. That is also important as the
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potential attendees are lead [sic] to believe you will be speaking on behalf of
BWC. This seems misleading. Isn’t it the perspective of BWC’s legal counsel
(the AG’s Office)? What perspective would BWC have on cross-examination and
trial tactics? If you intend to go forward with the presentation, I would like a
summary of what you intend to say about cross-examination and trial tactics in
general.
(Id.) Fierst answered, “I will advise the bar association that I am unable to speak at the seminar.
I will ask the bar association to call Steve.” (Id. at 1249.) His email to the bar association read,
“I am so sorry to tell you, but I have found out my commitment to speak was not cleared with the
senior management of our office in Columbus. That being the case, please contact Steve Fixler
from our office for an alternate speaker.” (Id. at PageID 1251.) Fixler forwarded this email to
Barnes, whose reaction was “Amazing! He blames senior management for bailing out of [sic]
presentation. My e-mail never said he could not do it, just what was needed before he did it.”
(Id. at PageID 1254.)
The OAG characterizes Fierst’s behavior as the beginning of him becoming
“uncooperative, argumentative, and insubordinate.” (Doc. 27 at PageID 1194.)
C. Appellate Briefs
To improve the quality of the appellate briefs being filed by section AAGs in the
Cincinnati regional office, Barnes created a review committee.3 Once a draft was completed, the
authoring AAG was required to submit it to the panel in file-ready format. Necessary edits
would be made, then, before the brief was filed.
Fierst had little experience filing appellate briefs. And apparently one of the first ones he
filed4—regarding claimant Charles Carr in January 2014—was problematic. The review team

3

In addition to Section Chief Barnes, his Assistant Chief Crystal Richie, and Steve Fixler, the other members of the
committee were Mark Mastrangelo and Jeffrey Duber from the Cleveland regional office and Cheryl Nester and
Patsy Thomas from Columbus. (Barnes Dep., Doc. 17at PageID 98–99 (39:10–40:1).)
4
During his deposition Fierst was asked:

4

made substantial edits to his brief, which was only three pages in length and contained errors.
(Id. at PageID 1239 (¶ 8); Fierst Dep., Doc. 21 at PageID 639 (140:6–9).) Despite the review
team’s input, the brief, as filed, still contained “punctuation and typographical errors.” (Fierst
Dep., Doc. 21 at PageID 639 (140:2–5).) This string of email exchanges followed. First, Barnes
to Fierst:
I am at a loss to understand how so many errors/mistakes/typos remained in the
brief despite them being brought to your attention on 4 separate occasions by
members of the review team. I am especially concerned since the body of this
brief is only 3 pages long. There appears to be a lack of proofreading and
attention to details, including, but not limited to your citation to a case in the first
assignment of error (Tisdale) that you do not set forth in the body of the brief.
This reflects badly on the quality of work produced by the office and section.
What happened? We anxiously await your response.
(Doc. 27-2 at PageID 1256.) Fierst to Barnes:
Why is it necessary to have four separate edits on a brief? Trying to sort through
the multiple and sometimes contradictory instructions from the various committee
members is very confusing. It would be much simpler to receive a final edit from
you after the committee, with as the clearinghouse, agrees to the changes. Better
yet, why not just send it back to the attorney filing the appeal in the final form you
desire? This would eliminate a tremendous amount of confusion.
(Id.) Frustrated that Fierst had “place[d] the blame” on the review team for his failure to file a
quality brief, Barnes set up a teleconference with all parties involved. (Id. at PageID 1255.)
Barnes recalls Fierst stating that, “no one in Cincinnati, including judges, had a problem with his
work product.” (Id. at PageID 1258.) He knew he was going to win the case, “so he did not
understand why we needed to discuss the matter.” (Id.) When Barnes asked why he did not
proofread his brief before filing it, Fierst said “he was in a hurry and wanted to file the brief on
Q How many court of appeals briefs had you drafted while you were in the work comp section in
Cincinnati prior to the Carr brief, if you recall? I assume you’re not going to have an exact
number, but if you can ballpark it for me.
A I know the Solomon case. I’m not sure that I had any others. Maybe – I don’t know. I don’t
want to say just one, but it could possibly have been that.
(Fierst Dep., Doc. 21 at PageID 638 (139:15–22).)

5

time.” (Id.) Consistent with Barnes’ written summary of the meeting, Fierst recalled that
Barnes’ message to him was that he needed to accept responsibility for his failures. (Fierst Dep.,
Doc. 21 at PageID 626–27(128:22–129:1).) Fierst further testified, though, that Barnes was
unwilling to accept his explanation that he was confused by the process. (Id. at PageID 627
(128:1–21).) He conceded that his remark to the committee—“With all of this, why don’t you
guys just write the brief the way you want.”—may have “sound[ed] more argumentative than
perhaps totally than what I meant.” (Id. at PageID 130–31 (130:22–131:1).)
On the heels of the Carr brief came another matter involving claimant Kym Marshall.
According to Barnes, the brief submitted by Fierst to the review committee was “in poor shape”
and the committee “needed to spend an excessive amount of time” revising it. (Barnes Decl.,
Doc. 27-2 at PageID 1240 (¶ 9).) Unbeknownst to Barnes, however, Fierst also sent a copy of
his brief to the Appeals section.5 (Id.) Barnes forwarded to Fierst the edits suggested by the
review committee. (Doc. 22-1 at PageID 902–03.) Fierst responded with both comments and
questions. (Id. at 901–02.) Barnes replied:
Thank you for your consistency and capitalization questions/comments. Please
see responses (in red) in your below email. Moving forward, there is no need for
you to spend a great deal of time pointing out perceived errors made by the
review team regarding our non-substantive edits to your brief (i.e., use of upper
case versus lower case, or where one non-substantive edit on one page may
conflict with the same non-substantive edit on another page). We expect you to
conduct a meaningful review of the edits and use good judgment. As we
discussed in our previous lengthy meeting, our expectation was that your brief
submitted to the review team was not a draft or for us to rewrite. It should have
been submitted in form [sic] that was ready to be filed in court. As the many edits
suggest, the brief was not submitted to us in a “‘ready to be filed form”
(incomplete quotes, lack of case cite to quote, incorrect structure, flow, improper
citation form, etc.). This is especially concerning for such a short brief with a
limited issue and argument. We want every document from our section that it

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The Appeals section of the OAG represents clients in the Supreme Court, the Sixth Circuit Court of Appeals, and
the Supreme Court of Ohio. (Madden Decl., Doc. 27-4 at PageID 1300 (¶ 5).) Additionally, it provides support for
some of the more difficult cases that the OAG handles, such as election issues. (Id.)

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filed in court to reflect the level of high quality work the AG demands from us
and that the courts expect from our office.
(Id. at PageID 901.) Fierst then forwarded Barnes’ reply to Jonathan Fulkerson, Barnes’
supervisor,6 with the comment, “This is incoherent[.]” (Id.; Fierst Dep., Doc. 22 at PageID 797–
98 (252:24-253:1).) Less than fifteen minutes later, Fierst emailed Fulkerson again:
I had the appeals section look at the brief a few days ago. [] One of the comments
was “overall the organization of the brief is quite good”. I am so frustrated that
Mr. Barnes cant [sic] admit his “review team” makes mistakes. My secretary and
I are being driven crazy by this.
(Doc. 22-1 at PageID 900.) Fulkerson instructed Fierst to contact Barnes. (Id.) He later emailed
Barnes, asking if it was “normal” for his AAGs to send their briefs to the Appeals section for
review and noted that he was “bothered by David sending things outside the proper chain of
command.” (Id.) Barnes, too, was “frustrated and disappointed” that Fierst did not go through
the appropriate channels. (Barnes Decl., Doc. 27-2 at PageID 1240 (¶ 9).)
D. DODD’s Request for Representation
As recited earlier, when Fierst transferred back to Cincinnati in May 2008 he handled not
only workers’ compensation matters, but also the commitment work for the HHS section.
Regarding the latter, his role was to represent the DODD’s interests when an individual might
need to be committed involuntarily to an institution for care related to an intellectual disability.
(Marziale Decl., Doc. 27-5 at PageID 1339 (¶ 3).)
On April 13, 2015, the Program Director from the Southwest Ohio Developmental Center
corresponded with Fierst. (Doc. 37-2 at PageID 2658.) She advised him of a hearing date set by
the Clermont County Probate Court, at which the continued commitment status regarding one of
her clients would be determined. (Id.) Fierst responded that because the individual had been

6

Fulkerson is Attorney General DeWine’s Deputy Chief Counsel. (Fulkerson Decl., Doc. 27-3 at PageID 1294 ¶
2).)

7

found to be mildly mentally retarded, “I will not be participating in his hearing since the court
lacks jurisdiction to have him involuntary committed.” (Id. at PageID 2656–57.) In response,
Vicki Jenkins of the DODD emailed Roger Carroll, the Principal AAG for the HHS section,
conveying her view that she did not believe the civil commitment statutes “gives [sic] David the
option of not appearing.” (Id. at PageID 2656.) Carroll in turn contacted Arthur Marziale, HHS
Section Chief, relaying his agreement with Jenkins that Fierst’s response was “inappropriate.”
(Id.) On May 7, 2015, Marziale sent the following email to Fulkerson and Wagner:
Roger and I finally had time to discuss. I agree that David cannot simply opt out
of representing the client. The department has to have representation. It is up to
the court to decide what happens to the individual. David cannot make that
determination himself. That being said, can I have any confidence that he will do
his job properly? We have had these issues with his representation of DODD
before.
(Id.) Ultimately the hearing was continued at the State’s request. Fierst was not assigned any
additional HHS work, because Marziale “felt he ignored his client and ethical obligations.”
(Marziale Decl., Doc. 27-5 at PageID 1340 (¶ 8).)
For his part, Fierst testified that he specifically copied Carroll on his email to the Program
Director “to ensure he was aware of my position and intentions and had an opportunity to
question it if he disagreed.” (Fierst Decl., Doc. 37-2 at PageID 2652 (¶ 20).) He maintains that
at no time did Carroll, his supervisor when he did work for HHS or DODD, ever tell him, or
suggest to him, that not attending a hearing was “an unacceptable option.” (Id.) Fierst insists
that he did not believe that the probate court had authority to commit the individual or that his
attendance at the hearing was necessary to protect the DODD’s interests. (Id.)
E. Performance Reviews
Fixler and Carroll prepared annual performance evaluations of Fierst.

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In the last evaluation he prepared, and for the period June 2010 through May 2011, Fixler
rated Fierst “4”out of “5” in the areas of “Analytical Ability and Problem Solving,” “Verbal
Communication,” “Written Communication,” “Judgment,” “Client Assessment and
Responsiveness,” “Professional Development,” and “Professionalism,” and a “5” out of “5” in
“Organizational Skills,” “Independence,” and “Dependability and Availability.”7 (Doc. 24-1 at
PageID 1083–85.) Fixler awarded Fierst an overall rating of “4” and noted in the “Comments”
section:
Dave does good legal work. His oral and written advocacy skills have improved.
He is always willing to help with court appearances, depositions or trial. He has
good interaction with the client.
(Id. at PageID 1084.) As to Fierst’s strengths, Fixler testified:
Dave was a hard worker. He’s a good worker. He produced a good quantity of
work. He had an understanding of worker’s compensation. It might not have
been the same understanding that one would have if they had been doing it 20
years. He had not had that type of experience. But there was no issue with him
not being able to work on cases on his own. He was completely independent as
far as that’s concerned.
(Fixler Dep., Doc. 24 at PageID 1041(13:15–23).) Regarding weaknesses, there were
“concerning” issues vis-à-vis Fierst’s failure to get along with support staff (two secretaries and a
paralegal) and “[m]aybe not having the best communication with them.” (Id. at PageID 1041–42
(13:24–14:8).)
In the first evaluation he prepared and for the rating period July 2012 through June 2013,
Carroll rated Fierst the third highest (“Meets”) of the four possible substantive ratings in the
areas of “Judgment and Problem Solving,” “Organizational Skills,” and “Professionalism,” and
the highest possible rating (“Exceeds”) as to “Verbal Communication” and “Written
7

The rating scale used ranged from “1”—the lowest—to “5”—the highest. A rating of “4” means the attorney’s
performance is characterized “by initiative and high quality and consistently exceeds the requirements and
expectations of the evaluator.” (Doc. 24-1 at PageID 1083.) A “5” indicates work that is “consistently”
characterized “by exceptionally high quality and excellence.” (Id.)

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Communication.”8 (Doc. 24-1 at PageID 1068–70.) Carroll commented that “Dave handles a
large case load[,]” and noted that Fierst met his goals of “Less IME’s”—which the Court
presumes means “independent medical examinations”—and “Paralegal Utilization.” (Id. at
PageID 1070, 1071.) As to the former, Carroll explained, “By settling cases at an earlier stage
Dave has saved the BWC money and has more time to concentrate onthe [sic] cases that must be
tried[,]” and, regarding the latter, “Dave has a better working relationship with his paralegal who
now does scheduling For his IME’s, Depositions, & settlement conferences.” (Id. at PageID
1071.) Carroll awarded Fierst an overall rating of “Meets” and noted:
Dave is a hard worker and wants to be the best at everything he attempts. He has
carried a large case load.[]He has been willing to fill in for other staff when they
needed to take leave. He has begun utilizing his support staff more and he will
continue to increase this utilization to make himself more successful.
(Id. at PageID 1073.) As reviewer of the evaluation, Barnes observed:
Dave is diligent in handling his cases. He does very well in dispositive motion
practice. He is adept at identifying relevant issues and presenting effective
arguments to the court in support of our clients[.]
(Id.) Fierst “signed” his evaluation on July 23, 2013, and remarked:
There is no criteria established from one rating period to the next to establish what
constitutes “exceeds” expectations. The evaluations are given and then forgotten
until the next rating period. Since I expect a lot out of myself, I would like to
know what is needed to achieve the highest possible ratings.
(Id. at PageID 1073, 1074.)
Carroll prepared a second evaluation for the rating period July 2013 through June 2014.
(Id. at PageID 1075–80.) He again was awarded the third highest rating (“Meets”) in “Judgment
and Problem Solving” and “Organizational Skills.” (Id. at PageID 1076.) His “Professionalism”
rating dropped to “Partially Meets,” however, and his score for “Written Communication fell

8

Carroll used a form different from the one Fixler completed. (Doc. 24-1at PageID 1068–74.) The four substantive
ratings are titled, “Exceeds,” “Meets,” “Partially Meets,” and “Does Not Meet.” (Id.)

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from “Exceeds” to “Meets.” (Id. at PageID 1076, 1077.) His rating for “Verbal
Communication” remained at “Exceeds.” (Id. at PageID 1077.) Carroll’s comments were
mixed:
Dave’s case load has been larger than most of the other attorneys in the Cincinnati
office this past rating period. Dave is a hard worker. Dave strives to do what he
feels is the best way to protect our clients’ interest. Dave always pursues his
advocacy in an ethical way. Professionalism, however, is more than just ethics.
Dave has on a number of occasions refused to talk to many of his co-workers
including myself. He has erroneously accused his supervisors of not covering his
assignments or filing his documents. He’s erroneously accused secretaries of not
typing his work when his secretary was absent. On more than one occasion his
demeanor has been loud, confrontational and angry. His behavior creates a rather
tense atmosphere that makes those who have to be around him uncomfortable. It
would have been helpful to me if Dave’s side of these issues with other staff were
communicated to me. Dave refused to do the Office’s highly suggested, and
Section’s required, self-evaluation.
(Id. at PageID 1077.) Notwithstanding these criticisms, Carroll nonetheless gave Fierst an
overall rating of “Meets” with this final comment:
Dave is a hard working, talented attorney who unfortunately experiences
difficulty in getting along with his co-workers, both supervisors and support staff.
If Dave could improve in this area he will someday be a superior asset to the
Office. If he does not[,] his work and others’ work will suffer.
(Id. at PageID 1080.) As reviewer of the evaluation, Barnes added these remarks:
Dave had case successes this evaluation period (e.g., Tolivar, Stallworth). At the
same time, however, he has been increasingly resistant to directives and
instruction from section management. In one case (Carr), Dave filed an errorfilled 3-page brief in court even though the section chief had provided corrective
edits before the brief was due to be filed. In a later case (Marshall), David
submitted a brief laden with errors to the review team. (e.g., Incomplete quotes,
incorrect structure, improper citation form, flow, etc.). Rather than accept
constructive input, Dave engaged in unproductive back and forth with the team on
non-substantive matters. After much input from the review team, Dave did file an
appropriate brief in court. Fortunately, in both Carr and Marshall, our client
received a favorable decision. Finally, despite my directive for all section staff to
submit a self-evaluation of their work performance to their rater, Dave refused to
submit a self-evaluation.
(Id.) Fierst “signed” his evaluation on July 16, 2014, and included this response:
11

In the past 12 months covering this rating period, I have not been advised of a
single instance where anyone outside this office has complained about my work
output or my professionalism including opposing counsel. My co-workers,
mentioned above, seem to have the idea that my purpose in life is to do the work
that they’re not interested in doing. When I inquired about why my caseload is
almost always the highest in the section for the Cincinnati office, I received vague
and unusual answers. Even though I’ve been assigned work in another section in
addition to my high caseload in workers comp, management has refused to
provide me with appropriate assistance and back up. Based on the comments
about me as outlined above, it is easy to understand why people are leaving this
section in droves.
(Id. at PageID 1082.)
F. Fierst’s EEOC Charge and Internal Discrimination Complaint
The next day, July 17, 2014, Fierst filed a Charge of Discrimination based on race/color
and military status, although he recorded his sex, religion, and age on the form as well. (Doc.
27-4 at PageID 1302 (¶ 16), 1329.) Kathleen Madden, Human Resources Director, submitted a
position statement to the Commission on behalf of the OAG. (Id. at PageID 1302 (¶ 16).) The
EEOC issued a right-to-sue letter, which was mailed on July 7, 2015 and stamped “RECEIVED”
by Human Resources on July 9. (Id. at PageID 1306 (¶ 18), 1325–30.)
Fierst also filed an internal discrimination complaint on July 24, 2014. (Id. at PageID
1337.) EEO Compliance Officer Kristine Cadek conducted an in-house investigation that
included interviewing 20 to 30 individuals—Barnes, Fixler, and Carroll among them. (Cadek
Dep., Doc. 35 at PageID 2469–71(26:13–28:5).) In a letter dated September 18, 2014, she
advised Fierst that her “fact finding review shows that it is NOT PROBABLE any EEO policy
violation has occurred.” (Doc. 37-2 at PageID 2660.) Fierst invoked the internal appeal process.
(Id. at PageID 2661.) Amy Golian, Assistant Chief of the Education section, was named the
Independent Investigator by Madden. (Id.) Golian reviewed the file created by Cadek, and
conducted an interview with Fierst. (Doc. 27-4 at PageID 1337–38.) During the two-plus hour

12

meeting, Fierst provided certain documents for her review. (Id.) Several weeks later, Golian
sent Fierst a summary of the information he shared with her during the meeting and asked him to
review it for accuracy. (Id.) Through counsel, Fierst stated he would provide his own summary,
which he came March 6, 2015. (Id.) On March 18, 2015, Golian informed Madden in writing
that she concurred with Cadek’s conclusions. (Id. at PageID 1302 (¶ 17), 1337–38.)
G. Termination
Madden travelled from Columbus to Cincinnati to terminate Fierst. (Id. at PageID 1303
(¶ 19).) She testified that she initially was planning to terminate him during the week of July 6,
2015 until she learned that Fierst would be absent then for medical reasons. (Id.)9 She met
instead with Fierst on Friday, July 17, 2015, accompanied by Facility Security Manager Arthur
Reitz. (Id.) She informed Fierst that his unclassified appointment was being revoked and gave
him the option of resigning or being terminated. (Id.) Madden testified that Fierst asked to leave
the office to meet with his attorney. (Id.) Madden denied that request, but offered to let him call
his attorney. (Id.) When Fierst insisted on leaving, Madden testified that she pushed him to
make a decision. (Id.) Because Fierst was unable to decide, he was terminated. (Id.)
H. Procedural Posture
Fierst filed a three-count Complaint alleging retaliation, race discrimination, and sex
discrimination, all in violation of Title VII. (Doc. 1.) In due course, the OAG moved for
summary judgment with respect to all claims. (Doc. 27.) In response, Fierst abandoned both his

9

Madden claims that she learned of Fierst’s medical absence from both Wagner and Barnes. Barnes’s testimony
corroborates hers:
I learned that the OAG intended to terminate Mr. Fierst’s employment during a telephone call
from Kathleen Madden. On that call, I informed her that Mr. Fierst was going to be out of the
office for medical reasons July 7–13, 2015.
(Barnes Decl., Doc. 27-2 at PageID 1242 (¶ 14).) Wagner’s does not. (Wagner Dep., Doc. 36 at PageID 2574–78
(37:19–41:10) (“It was a completely – a complete surprise to me for that day.”).)

13

discrimination claims. (Doc. 37 at PageID 2628.) Remaining for disposition, then, is his
retaliation claim.
II.

STANDARD OF LAW
Although a grant of summary judgment is not a substitute for trial, it is appropriate “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The process of evaluating a motion for
summary judgment and the respective burdens it imposes upon the movant and the non-movant
are well-settled. First, “a party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine issue of material fact[.]” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); see LaPointe v. United Autoworkers Loc. 600, 8 F.3d
376, 378 (6th Cir. 1993). This burden may be satisfied, however, by the movant “pointing out to
the court that the [non-moving party], having had sufficient opportunity for discovery, has no
evidence to support an essential element of his or her case.” Barnhart v. Pickrel, Schaeffer &
Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir. 1993).
Faced with such a motion, the opposing party must submit evidence in support of any
material element of the claim or defense at issue in the motion on which it would bear the burden
of proof at trial. Celotex, 477 U.S. at 331–32. As “the requirement [of the Rule] is that there be
no genuine issue of material fact,” the Supreme Court has made clear that “[o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(emphasis in original). Ancillary factual disputes, those “that are irrelevant or unnecessary[,]will
not be counted.” Id. Furthermore, “[t]he mere existence of a scintilla of evidence in support of

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the [non-movant’s] position will be insufficient; there must be evidence on which the jury could
reasonably find for the [non-movant].” Id. at 252. Instead, the opposing party must present
“significant probative evidence” demonstrating that “there is [more than] some metaphysical
doubt as to the material facts” to survive summary judgment and proceed to trial on the merits.
Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339–40 (6th Cir. 1993) (applying Anderson, 477
U.S. at 249–50; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)).
At this summary judgment stage, it is not the Court’s role “to weigh the evidence and
determine the truth of the matter but [rather] to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249. In so doing, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 255 (citing Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157–59 (1970)). Adherence to this standard, however, does
not permit the Court to assess the credibility of witnesses. See Adams v. Metiva, 31 F.3d 375,
378 (6th Cir. 1994) (citing Anderson, 477 U.S. at 255)).
III.

ANALYSIS
Title VII’s anti-retaliation provision makes it “an unlawful employment practice for an

employer to discriminate against any of his employees . . . because he has opposed any practice
made [unlawful by Title VII], or because he has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e3(a). A plaintiff may establish retaliation “either by introducing direct evidence of retaliation or
by proffering circumstantial evidence that would support an inference of retaliation.” Spengler
v. Worthington Cylinders, 615 F.3d 481, 491 (6th Cir. 2010) (quoting Imwalle v. Reliance Med.
Prods., Inc., 515 F.3d 531, 543 (6th Cir. 2008)).

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Fierst has offered no direct evidence of retaliation. Rather, he advances a circumstantial
case for retaliation, which the Court must examine under the McDonnell Douglas evidentiary
framework used to assess claims of discrimination. Imwalle, 515 F.3d at 544. At the prima facie
stage, Fierst must show that: (1) he engaged in a protected activity under Title VII; (2) the OAG
knew it; (3) the OAG thereafter took an adverse employment action against him; and (4) there
was a causal connection between the adverse employment action and Fierst’s protected activity.
Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 995–96 (6th Cir. 2009). If Fierst establishes his
prima facie case, the burden of production shifts to the OAG to articulate a legitimate
nondiscriminatory reason for its adverse employment action. Id. at 996. Once it does, Fierst
then must show that the OAG’s reason is a pretext for retaliation. Id. He can do so by proving
that the reason: (1) had no basis in fact; (2) did not actually motivate the OAG; or (3) was not
sufficient to warrant termination. McCowen v. Village of Lincoln Heights, 624 F. App’x 380,
383 (6th Cir. 2015) (citing Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 597 (6th Cir.
2007)).
Here, the first three elements of Fierst’s prima facie case clearly are satisfied. The OAG
contends, however, that Fierst cannot show “but-for” causation regarding his termination, the
required fourth element, or that its reasons underpinning his termination were pretextual. (Doc.
43 at PageID 2715).
A plaintiff making a Title VII retaliation claim must establish that his protected activity
was “a but-for cause of the alleged adverse action by the employer.” Univ. of Tex. Sw. Med. Ctr.
v. Nassar, 133 S. Ct. 2517, 2534 (2013). In this civil action, it means that Fierst must present
evidence from which a reasonable jury could find that the OAG would not have fired him if he
had not filed either his EEOC charge or his internal discrimination complaint. See EEOC v.

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Ford Motor Co., 782 F.3d 753, 770 (6th Cir. 2015) (en banc). Fierst need not prove, however,
that retaliation was the OAG’s only motive, because adverse employment actions can have more
than one “but-for” cause. McCowen, 624 F. App’x at 384 (citing Lewis v. Humboldt Acquisition
Corp., 681 F.3d 312, 315–16, 321 (6th Cir. 2012)).
In Ford Motor Co., the Sixth Circuit affirmed the district court’s grant of summary
judgment to the employer on a claim of retaliation. 782 F.3d at 758, 770. It concluded that the
EEOC could not establish but-for causation—and thus meet its prima facie case—and that,
alternatively, even if it had, it could not establish pretext. Id. at 767–70. Both Fierst and the
OAG believe that Ford Motor Co. supports their respective positions. Fierst presents the better
argument, but barely.10
The Court has read the entire deposition transcripts of Carroll, Fixler, Wagner, and
Barnes, as well as Fulkerson, Cadek, Madden, Murniecks, and Mertz. It is an understatement to
concede, as the OAG has, that its “senior administration members recall the details of the
termination decision somewhat differently.” (Doc. 43 at PageID 2721 (emphasis added).)
First Assistant Mertz, the “official” decision-maker, remembers very little. She talked to
Madden, Barnes, and Wagner, and from those conversations she learned that Fierst “did not want
to fill out his Performance Evaluation” (Mertz Dep., Doc. 19 at PageID 408 (15:8–13)), “did not
want to take direction on editing documents” (id. at PageID 405 (12:10–17)), and “was a
negative influence in the [Cincinnati] office” (id. at PageID 406 (13:15–23)). She recalls that,
based on these factors, “and overall, for someone in a highly paid position[,]” Human Resources
Director Madden recommended termination. (Id. at PageID 412–13 (19:23–20:13).) As to when

10

The OAG correctly notes that Fierst “has somewhat collapsed the analysis of pretext and his prima facie case
obligation to show a but-for causal connection between his discrimination complaint and his termination.” (Doc. 43
at PageID 2716.) This is understandable, inasmuch as the Sixth Circuit appears to have done so in both McCowen,
624 F.3d at 383 and Ford Motor Co., 782 F.3d at 770.

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Madden made her recommendation, Mertz cannot recall. (Id. at PageID 418 (25:5–11).) Finally,
she has no memory of anyone telling her that Fierst “was refusing to work on a particular HHS
matter[.]” (Id. at PageID 425 (32:6–14).)
Chief Operating Officer Murnieks testified that she discussed the decision to “revoke Mr.
Fierst’s unclassified appointment” with Mertz, her superior:
I recall there being a discussion that there were continuing issues with Mr. Fierst,
and that it was the desire of the Workers’ Comp section leadership to
terminate his employment, and I informed her of that.
(Murniecks Dep., Doc 20 at PageID 469–70 (33:17–34:2) (emphasis added).) Murniecks
characterized Mertz’s response as one of “not object[ing]” to the decision. (Id. at PageID 471
(35:8–23).) She could not recollect whether she spoke to Section Chief Barnes and Managing
Attorney Wagner about whether they were in agreement with terminating Fierst, but testified
affirmatively with respect to Madden and Deputy Chief Counsel Fulkerson, both of whom were.
(Id. at PageID 475–77 (39:24–41:1).) Yet Fulkerson denies recommending termination of Fierst
to anyone. (Fulkerson Dep., Doc. 23 at PageID 981(24:17–20).) Confirming that he knew about
the termination in advance of it happening, Fulkerson testified:
I recall being in a meeting in the Columbus office. I recall a -- I don’t
remember what the subject of the meeting was, but at some point the meeting was
breaking up and someone asked a question about the Cincinnati office. And I
recall Kathleen Madden asking can we get rid of David Fierst. And I recall
Mary Mertz saying yes.
(Id. at PageID 989–90 (32:15–33:3) (emphasis added).)
Section Chief Barnes likewise denies recommending termination of Fierst. He became
“aware” that the decision had been made in a telephone call from Madden, who was asking when
Fierst would be in the office. (Barnes Dep., Doc. 17 at PageID 82–83 (23:21–24:19).) During
that conversation, Madden did not tell Barnes who had made the decision to terminate. (Id. at

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PageID 83 (24:20–23).) When asked, at any time prior to the call from Madden, had he
recommended to her, or anyone else, that Fierst be terminated, Barnes testified:
A

I don’t believe I made a specific recommendation, but there were
discussions regarding – there were discussions regarding his performance
and my concern with his performance.

Q

In the course of any of those discussions did you tell whoever you were
talking to that you, James Barnes, were recommending that Fierst be
terminated?
MS. ITA: Objection.
Go ahead.
THE WITNESS: I don’t recall that I had that discussion – those
discussions.

(Id. at PageID 84 (25:8–24).)
Human Resource Director Madden did not equivocate during her deposition testimony.
She first heard of Fierst “in approximately June of 2014 through July of 2014, and the context
was related to his refusal to complete a self-evaluation as part of the annual performance
evaluation process.” (Madden Dep., Doc. 18 at PageID 240 (15:8–15).) She believed that Fierst
filed his charge with the EEOC because he was “upset with the ultimate result of th[at]
evaluation.” (Id. at PageID 258–59 (33:19–34:5).) And she considered Fierst’s charge to be
“frivolous,” (id. at PageID 260 (35:20–22)), an opinion she shared with Mertz, (id. at PageID
262 (37:5–22)).
Drawing all justifiable inferences in Fierst’s favor, the Court believes there is sufficient
evidence from which a reasonable jury could conclude that that filing of his EEOC charge and
his internal discrimination complaint was a “but-for” cause of his termination. Thus, Fierst has
established a prima facie case of retaliation. Fierst became a known quantity to Madden during
his evaluation process, which concluded with Fierst’s July 16, 2014 response that was not well

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received by Managing Attorney Wagner. (Wagner Dep., Doc. 36 at PageID 2560–66.) Actually,
Wagner was so irritated by it that he contacted Section Chief Barnes to offer his support should
Barnes want to “reach out to the administration and HR[.]” (Id. at PageID 2565 (28:6).) Wagner
deposed:
I told James – James wasn’t even soliciting my advice. I told James that Dave
Fierst strikes me as an employee that does not want to be here, does not want to
work for this organization, but hasn’t left on his own accord. And I couldn’t even
tell him what it is that he should do, but I encouraged him to reach out to the
administration and HR and that I would assist in any manner.
(Id. at PageID 2564–2565 (27:25–28:8).) But reaching out became unnecessary, because “[t]he
filing of the EEOC complaint [the next day, July 17, 2014] brought Dave to the attention of the
administration. It just brought it to a head.” (Id. at PageID 2567 (30:4–7).) Following the
EEOC charge was Fierst’s internal discrimination complaint filed on July 24, 2014. Completion
of that process, including Fierst’s exercise of his right to appeal EEO Compliance Officer
Cadek’s finding, did not occur until March 18, 2015, just four months before Fierst was
terminated. This proximity in time favors Fierst. Ford Motor Co., 782 F.3d at 767 (citing
Donald v. Sybra, Inc., 667 F.3d 757, 763 (6th Cir. 2012)). Yet the Court cannot—and does
not—rely on timing alone.
While there is no dispute that Fierst was highly paid11 and that the Workers
Compensation section was underfunded, Madden acknowledges that no other person was
terminated to bridge the budget shortfall. (Madden Dep., Doc. 18 at PageID 304–05 (79:18–
80:10).) And contrary to Chief Operating Officer (and Madden superior) Murnieck’s testimony
that the Workers’ Compensation section “leadership” wished to terminate Fierst’s employment,
11

There were 43 attorneys in the Workers’ Compensation section as of the date Fierst was terminated. (Doc. 27-4 at
PageID 1324.) He was paid more than 34 of them, and less than just 8 of them. Admitted to the bar in 1990,
Fierst’s hourly rate was $44.94. (Id.) Carroll, Fierst’s team leader in the Cincinnati Workers’ Compensation unit
and admitted in 1976, earned the next highest hourly wage, $45.05. (Id.) Fixler, head of that unit and admitted in
1981, earned $48.45. (Id.) Finally, Section Chief Barnes, admitted in 1985 earned $53.51 per hour. (Id.)

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Fulkerson and Barnes deny any such recommendation. So does Wagner. From all this evidence
a reasonable jury could conclude that the only person who recommended termination was
Human Resources Manager Madden, who had been tasked with the responsibility of conducting
an internal investigation and submitting a position statement to the EEOC defending the OAG.
Against a charge she described as “frivolous.”
This same evidence protects Fierst from an adverse summary judgment on the issue of
pretext. In response to an interrogatory asking Defendant to “[s]tate each reason for the decision
to terminate Plaintiff’s employment[,]” Madden answered: “Plaintiff [Fierst] was terminated
because, in the face of budget constraints, the OAG made the decision to terminate an employee
who was difficult to manage, created an unprofessional environment, was insubordinate to his
manager, and was paid more than the vast majority of other assistant attorneys general.” (Doc.
18-1 at PageID 372.) On the record before the Court, a reasonable jury could not conclude that
these reasons had no basis in fact or—especially in light of Fierst’s unclassified appointment—
that they were not sufficient to warrant termination. But there is adequate evidence to allow a
reasonable jury to conclude that these legitimate non-discriminatory reasons did not actually
motivate Fierst’s termination. McCowen, 624 F. App’x at 383–84. The surprisingly vague
testimony of Mertz, the purported decision-maker, suggests that she was nothing more than a
rubber stamp. The testimony of Murnieck is wholly undermined by the testimony of
“leadership” attorneys Fulkerson and Barnes. And the testimony of Madden, while self-assured,
plainly allows for the reasonable inference that she alone recommended Fierst’s termination in
the wake of his “frivolous” charge of discrimination.
The Court would be remiss if it did not recognize that there is ample evidence from
which a reasonable jury also could conclude that Fierst was a malcontent whose termination

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would have inevitably happened. An overpaid lawyer in terms of workers’ compensation
experience, in a department operating under a deficit, he was boorish to coworkers and bordered
on insubordinate with management. As such, a reasonable jury could determine that Fierst was a
logical candidate for separation. Indeed, as early as January 2014, in the aftermath of the
teleconference held with respect to the Carr appellate brief, Fierst himself testified that he was
“pretty shaken” afterward because he thought his employment “was in jeopardy.” (Fierst Dep.,
Doc. 21 at PageID 632–33 (133:17–134:2).) And although Fierst exalts his overall “category”
ratings in his performance reviews, he ignores the substantive comments, largely unfavorable,
incorporated by his raters and reviewers.
How this matter resolves will depend heavily on credibility assessments that, of course,
must be made by a jury during trial rather than by this Court on summary judgment. And while
the Court is doubtful that a jury will be convinced of Fierst’s version of the facts, under the case
law he is entitled to try.
IV.

CONCLUSION
For all the foregoing reasons, Defendant’s Motion for Summary Judgment (Doc. 27), on

the remaining issue of retaliation, is hereby DENIED.
IT IS SO ORDERED.

Dated: May 4, 2017

S/Susan J. Dlott________________________
Judge Susan J. Dlott
United States District Court

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