Salzbrun v. Warren County Community Services, Inc.

Filing 33

ORDER granting 13 Defendant's Motion for Summary Judgment. Signed by Judge Timothy S. Black on 7/13/17. (gs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
THOMAS SALZBRUN,

Case No. 1:16-cv-402

Plaintiff,

Judge Timothy S. Black

vs.
WARREN COUNTY
COMMUNITY SERVICES, INC.,
Defendant.
ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (Doc. 13)
This civil action is before the Court regarding Defendant Warren County
Community Services, Inc. (“WCCS”)’s motion for summary judgment (Doc. 13) and the
parties’ responsive memoranda (Docs. 29, 31).
I.

BACKGROUND

Plaintiff Thomas Salzbrun was employed by WCCS as its Executive Director from
March 2011 to October 20, 2014. (Doc. 29-2, at 1). WCCS is a charitable, nonprofit
organization dedicated to providing social services to seniors, children, and others in need
throughout Warren County, Ohio. As Executive Director, Plaintiff oversaw all day to
day operations of WCCS. (Doc. 11-8). Plaintiff was in charge of developing policies,
procedures and programs to implement the long term goals and objectives of WCCS. Id.
Plaintiff also was in charge of developing and monitoring an annual budget for WCCS in
conjunction with the organization’s Director of Accounting Operations. Id. Plaintiff also
served as the public figurehead of WCCS and was responsible for maintaining effective
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relationships both internally with WCCS staff and externally with other organizations and
members of the community. Id. As the chief staff executive, Plaintiff reported directly to
WCCS’s Board of Trustees (“the Board”). The Board, which consisted of sixteen
members at the time of Plaintiff’s termination, contains a subset of five members known
as the “Executive Committee.” The Executive Committee is authorized to act with the
authority of the Board to transact routine business when calling a non-scheduled full
Board meeting would be impractical. (Doc. 11-6, at 2). The Executive Committee is
also given special supervisory authority over the Executive Director, as the Committee
performs initial screening of candidates for an open Executive Director position and
conducts an annual performance evaluation of the Executive director which is then
presented to the full Board. Although the smaller Executive Committee was responsible
for providing oversight of Plaintiff, the full Board appointed Plaintiff to the Executive
Director position and was the only entity with the ability to remove him. (Id. (“The
Executive Committee shall not have the authority to employ or discharge the Executive
Director.”)).
Plaintiff was diagnosed with Parkinson’s disease in approximately 2000. (Doc.
29-2, at 1). According to Plaintiff, his symptoms began to worsen significantly in 2013
and 2014, which limited his ability to sleep, concentrate, engage in social interactions,
and use his hands. (Doc. 29, at 7). Plaintiff only disclosed his Parkinson’s diagnosis to
select WCCS employees on an “as-needed basis.” (Id.). Specifically, prior to 2014
Plaintiff had disclosed his diagnosis to Lisa Baker, the WCCS Executive Secretary, and
Cathy Payne, the IT Director and HR Manager, for the purpose of obtaining
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accommodations for his symptoms, specifically a left-handed mouse and voice
recognition software. (Doc. 11, at 20–21, 32-33). Ms. Payne gave Plaintiff a voice
recognition program for use at the office, but it did not work to Plaintiff’s satisfaction,
and he and Ms. Payne had not implemented a replacement before Plaintiff’s termination.
(Id. at 32–33). Plaintiff states that he did not make any member of the Board aware of his
diagnosis until the September 24, 2014 meeting that is discussed in detail below.
Plaintiff had a generally positive relationship with WCCS until late 2013, when
the long-serving president of the Board, Dr. Peckham, died and was replaced by interim
president, Dr. Don Jusczyck. Upon his ascension to the Board presidency, Dr. Jusczyck
sought to expand upon the previously sparse and formalistic evaluations of the Executive
Director. To that end, Dr. Jusczyck forwarded a copy of a largely positive self-evaluation
Plaintiff had completed in February 2014 to the Executive Committee members to ask for
their input. (Doc. 24-1, at 3).
Based on input received from the Executive Committee, Dr. Jusczyck and fellow
Executive Committee member Jack Collopy held a meeting with Plaintiff in April 2014
in which Plaintiff was given several new goals set by the Board designed to improve his
overall performance. Those goals included the preparation of an annual budget and the
development of a regular communications process with the heads of the staff departments
at WCCS. (Doc. 24-1, at 7). Plaintiff acknowledged concerns expressed at that meeting
regarding his lack of communication with Board members and staff members. (Id. at 9).
During the summer of 2014, the Executive Committee solicited written
evaluations regarding Plaintiff’s job performance from both the full Board (Doc. 11-20)
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and the WCCS senior staff who reported to Plaintiff (Doc. 11-21). Dr. Jusczyck and Mr.
Collopy prepared a 10 page composite of these comments for presentation to Plaintiff.
(Doc. 11-22). Several of the comments from these evaluations expressed the opinion that
Plaintiff should no longer serve as the WCCS executive director.
An Executive Committee meeting was held on September 24, 2014 to give
Plaintiff a formal performance review based on the feedback received. Plaintiff was
present at the meeting. The Executive Committee discussed Plaintiff’s perceived lack of
performance at the meeting. Plaintiff was shown copies of all the individual evaluations
filled out by Board members and WCCS staff. (Doc. 11, at 187–88). Plaintiff had
already received a copy of the composite of evaluation comments before the September
24, 2014 meeting. (Id. at 230). The Executive Committee outlined for Plaintiff their
view that the evaluations from the Board and staff were largely negative and reflected
upon Plaintiff’s failure to improve upon the numerous areas previously identified as
needing improvement. (Id. at 190). Each of the present Executive Committee members
(one of the five had left at this point) then described to Plaintiff examples of what they
personally saw as shortcomings in Plaintiff’s performance. (Id. at 190–91). A member
of the Committee then asked to see a copy of Plaintiff’s employment agreement with
WCCS. (Id. at 191).
After all present members of the Executive Committee had outlined their negative
opinion of Plaintiff’s job performance, Plaintiff for the first time informed the Committee
of his Parkinson’s diagnosis. Plaintiff told the Committee that although his condition was
not life threatening, he “was going to need some accommodations.” (Doc. 11, at 192).
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When the Committee asked what kind of accommodations would be needed, Plaintiff
mentioned a left-handed mouse, push to talk software, and “understanding.” (Id.).
Plaintiff was informed by Dr. Jusczyck one hour after the September 24, 2014 Executive
Committee meeting that the Executive Committee was going to recommend his
termination to the full Board of Trustees. (Doc. 11-24, at 3).
The Executive Committee recommended Plaintiff’s termination at the next full
Board meeting on October 20, 2014. (Doc. 11-25, at 4). The Board voted 11-1 in favor
of adopting the Executive Committee’s recommendation and terminating Plaintiff
effective immediately (three members were absent). (Id. at 3). Plaintiff was replaced as
WCCS Executive Director by Eugene Rose, a man three years his junior.
Plaintiff timely filed a charge of discrimination with the Equal Opportunity
Employment Commission (EEOC) on March 26, 2015. (Doc. 1, at 2). The EEOC
issued a Notice of Right to Sue on December 22, 2015. (Id.). Plaintiff filed the
complaint in the present case March 21, 2016. (Doc. 1). Plaintiff has raised claims of
age discrimination and disability discrimination under the Americans with Disabilities
Act and Ohio law. (Id. at 4–6).
II.

STANDARD OF REVIEW

A motion for summary judgment should be granted if the evidence submitted to
the Court demonstrates that there is no genuine issue as to any material fact, and that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). The moving party has the burden of showing the absence of genuine
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disputes over facts which, under the substantive law governing the issue, might affect the
outcome of the action. Celotex, 477 U.S. at 323. All facts and inferences must be
construed in a light most favorable to the party opposing the motion. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A party opposing a motion for 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.” Anderson, 477 U.S. at 248 (1986).
III.
A.

ANALYSIS

Age Discrimination

Age discrimination cases under the ADEA are analyzed under the same
framework as employment discrimination cases under Title VII. See Policastro v.
Northwest Airlines, Inc. 297 F. 3d 535, 538 (6th Cir. 2002). Proof in such cases proceeds
in three stages. First, in order to prove a prima facie case of discrimination, a Plaintiff
must show: (1) that he is a member of a protected group; (2) that he was subject to an
adverse employment decision; (3) that he was qualified for the position; and (4) that he
was replaced by a person outside the protected class. Kline v. Tennessee Valley Authority,
128 F.3d 337, 349 (6th Cir. 1997).
In age discrimination cases, the protected class includes all workers at least 40
years old and the fourth element is modified to require replacement not by a person
outside the protected class, but merely replaced by a significantly younger person. Kline,
128 F. 3d at 352–53.

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If the Plaintiff can establish a prima facie case, the burden then shifts to the
Defendant to articulate some legitimate, non-discriminatory reason for the employee’s
rejection. Kline, 128 F. 3d at 342. Third, after the Defendant has met this burden, the
Plaintiff must produce sufficient evidence in which the jury may reasonably reject the
employer’s explanation. See Manzer v. Diamond Shamrock Chemical Company, 29 F. 3d
1078, 1083 (6th Cir. 1994).
In this case, Plaintiff cannot establish a prima facie case of age discrimination
because he was not replaced with a substantially younger person. Plaintiff was born in
1956, and his replacement was born in 1959. (Doc. 13, at 16). The Court of Appeals for
the Sixth Circuit has held that, absent direct evidence that the employer considered age to
be significant in the decision to terminate an employee, an age difference of fewer than
six years cannot be found to be significant for purposes of the fourth part of an age
discrimination prima facie case. Grossjean v. First Energy Corp., 349 F.3d 332, 340 (6th
Cir. 2003). There is no direct evidence of age discrimination in this case. Therefore,
Plaintiff cannot show a prima facie case of age discrimination and the claim must be
dismissed at summary judgment. 1
Accordingly, Plaintiff’s claim against Defendant alleging age discrimination is
dismissed.

1

Plaintiff’s response to the motion for summary judgment (Doc. 29) does not address
Defendant’s arguments regarding age discrimination. Plaintiff therefore appears to concede the
point.
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B.

Disability Discrimination

Plaintiff additionally claims that he “was terminated on account of his disability
and/or perceived disability” in violation of the ADEA and Ohio law. (Doc. 1, at 4). It is
unclear whether Plaintiff wishes to raise a general disability discrimination claim or the
related “failure to accommodate” claim. However, both claims fail as a result of
Plaintiff’s untimely disclosure of his Parkinson’s diagnosis.
Defendant argues that, even if Plaintiff were disabled and had made a reasonable
request for accommodations, that the request was untimely and therefore cannot be the
basis for an employment discrimination claim. (Doc. 13, at 13, 15). Defendant’s
argument is correct. “When an employee requests an accommodation for the first time
only after it becomes clear that an adverse employment action is imminent, such a request
can be ‘too little, too late.’” Parsons v. Auto Club Group, 565 F. App’x 446, 449 (6th Cir.
2014) (quoting Jones v. Nationwide Line Ins. Co., 696 F.3d 78, 90 (1st Cir. 2012)). The
evidence in this case clearly demonstrates that the Executive Committee had taken
significant concrete steps to remove Plaintiff before ever learning about Plaintiff’s
disability. By the time Plaintiff had revealed his Parkinson’s diagnosis, the Executive
Committee had already compiled the largely negative reviews from the WCCS Board and

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staff,2 given their own harsh assessment of Plaintiff’s leadership abilities, and asked to
analyze Plaintiff’s employment agreement. The writing was on the wall long before
Plaintiff had divulged his diagnosis, and Defendant was not required to reverse the
process already in motion solely because Plaintiff mentioned that he had a disability.
Because of the extraordinarily late timing of Plaintiff’s divulgence of his Parkinson’s
diagnosis, no reasonable finder of fact could look at the evidence in this case and
conclude that any part of the decision to recommend Plaintiff’s termination was
influenced by that diagnosis. Plaintiff was going to be terminated, disability or no. 3
Plaintiff argues that Parsons is inapposite to this case because the court in Parsons
found that the Plaintiff had not requested an accommodation, while Plaintiff in this case
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Plaintiff’s response to the motion for summary judgment argues that the composite document
prepared by Dr. Jusczyck and Mr. Collopy was not representative of the performance evaluations
of the WCCS Board and staff as a whole. The Court has reviewed each of the individual
evaluations included in the record, and finds that while there is no universal consensus, they are
in fact largely negative. This is particularly the case with regard to the reviews filled out by the
senior staff members of WCCS who reported to Plaintiff. (See Doc. 11-21). Plaintiff’s staff in
large part considered Plaintiff to be an ineffective leader and poor communicator who was not
actively engaged in the day to day processes of WCCS to the extent required to be a good
Executive Director. The overwhelmingly negative nature of these reviews strengthens the
conclusion that Plaintiff’s termination was a foregone conclusion before he divulged his
Parkinson’s diagnosis, and that Plaintiff’s termination therefore could not be the result of
discrimination based on his disability.
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Plaintiff’s response to the motion for summary judgment argues that the Executive
Committee’s reasons for terminating Plaintiff were disingenuous, claiming that the comments
received from the WCCS Board and staff were not as negative as characterized by Defendant
and also that the Executive Committee did not do enough work to verify the accuracy of certain
negative assertions by staff members. Plaintiff may or may not be correct in his general
assertion that the Executive Committee was determined to fire Plaintiff regardless of cause.
However, Plaintiff was an at will employee of WCCS, and he therefore could be fired for any
reason or no reason at all, so long as WCCS was not motivated by Plaintiff’s membership in a
class protected by law. (Doc. 11-3, at 2). The timing of Plaintiff’s disclosure of his Parkinson’s
diagnosis precludes a reasonable finder of fact from finding the diagnosis had an impact on the
decision to terminate him; therefore, the Court need not attempt to discern whether the actual
reasons offered for Plaintiff’s termination by WCCS were in fact true.
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requested a reasonable accommodation before his termination. Plaintiff’s statement
regarding the circumstances in Parsons is correct, but the Sixth Circuit explicitly stated in
Parsons that even if an accommodation had been made, the analysis regarding
untimeliness quoted above would apply. Parsons, 565 F. App’x at 449. Plaintiff also
argues that “there is a question of fact as to whether Salzbrun requested reasonable
accommodations before the Executive Committee had reached a recommendation on his
termination.” (Doc. 29, at 21). While the Executive Committee did not actually
recommend to the full Board of Trustees that Plaintiff be terminated until one month after
Plaintiff had divulged his Parkinson’s diagnosis, the large accumulation of evidence
suggesting that the Executive Committee, WCCS Board, and WCCS senior staff were
unhappy with Plaintiff’s performance as Executive Director demonstrate beyond any
dispute of material fact that Plaintiff’s termination was in motion before anyone with
relevant authority knew Plaintiff had Parkinson’s disease.
Accordingly, Plaintiff’s claims of disability discrimination are dismissed.
IV.

CONCLUSION

Accordingly, for the reasons stated above,
1) Defendant’s motion for summary judgment (Doc. 13) is GRANTED;
2) Plaintiff’s complaint is DISMISSED WITH PREJUDICE;
3) The Clerk shall enter judgment accordingly, whereupon this case is
TERMINATED from the docket of this Court.

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IT IS SO ORDERED.
Date: 7/13/17

______________________
Timothy S. Black
United States District Judge

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