Brown et al v. Tellermate Holdings Ltd. et al
Filing
250
OPINION AND ORDER granting in part and denying in part 52 Motion for Summary Judgment. Signed by Judge James L Graham on 8/27/2015. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Robert A. Brown, et al.,
Case No. 2:11-cv-1122
Plaintiffs,
v.
Judge Graham
Tellermate Holdings Ltd., et al.,
Magistrate Judge Kemp
Defendants.
OPINION & ORDER
This matter is before the Court on the Defendants’ Motion for Summary Judgment (doc.
52). For the following reasons, the Court will grant in part and deny in part the Defendants’
Motion (doc. 52).
I.
Background
This civil action was originally filed in the Common Pleas Court of Franklin County
Ohio and was removed to this Court on December 15, 2011.
The Plaintiffs, Robert and Christine Brown, are residents of Westerville, Ohio. Defendant
Tellermate is a corporation that is in the business of producing and selling electronic cash
counting and point of sale devices. It is a wholly-owned subsidiary of Tellermate Holdings
Limited (THL), a corporation organized under the laws of the United Kingdom, headquartered in
Newport, Wales, UK. Defendant Insperity PEO Services LP provides HR services to Tellermate
pursuant to contract. Individual defendants Rendell, Lunn, Davies, Biss, Pilkington and Elliott
are directors, officers and employees of Tellermate and THL.
Mr. Brown began his employment with Tellermate in January 1999. In January 2002, he
was promoted to regional sales manager for the company’s North Central and North West
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regions. Mrs. Brown began her employment with Tellermate in April 1999 as a sales
representative. In January 2005, she was promoted to account manager in the North Central
region. The Browns employment was terminated on August 22, 2011. At that time Mr. Brown
was 54 years old and Mrs. Brown was 51 years old.
The Plaintiffs claim they are victims of age-based employment discrimination. The
Defendants claim that their employment was terminated for performance-based reasons unrelated
to their age. In order to prove employment discrimination under Ohio law, a plaintiff may rely
upon direct evidence of discrimination. In the alternative, he or she may rely upon indirect or
circumstantial evidence invoking a rubric similar to the McDonnell Douglas factors used in
federal employment discrimination cases as explained below.
In their Complaint (doc. 5), the Plaintiffs assert a claim of employment discrimination
under Ohio law, specifically sections 4112.02 and 4112.99 of the Ohio Revised Code. They also
assert claims for promissory estoppel, breach of contract, conversion, unjust enrichment, and
negligence. The Plaintiffs do not assert any claims under federal law.
II.
Standard of Review
Under Federal Rule of Civil Procedure 56, summary judgment is proper if the evidentiary
material in the record shows that there is “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Longaberger Co. v.
Kolt, 586 F.3d 459, 465 (6th Cir. 2009). The moving party bears the burden of proving the
absence of genuine issues of material fact and its entitlement to judgment as a matter of law,
which may be accomplished by demonstrating that the nonmoving party lacks evidence to
support an essential element of its case on which it would bear the burden of proof at trial. See
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Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Walton v. Ford Motor Co., 424 F.3d 481,
485 (6th Cir. 2005).
The “mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986); see also Longaberger, 586 F.3d at 465. “Only disputed material facts, those ‘that might
affect the outcome of the suit under the governing law,’ will preclude summary judgment.”
Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008) (quoting Anderson, 477 U.S.
at 248). Accordingly, the nonmoving party must present “significant probative evidence” to
demonstrate that “there is [more than] some metaphysical doubt as to the material facts.” Moore
v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993).
A district court considering a motion for summary judgment may not weigh evidence or
make credibility determinations. Daugherty, 544 F.3d at 702; Adams v. Metiva, 31 F.3d 375, 379
(6th Cir. 1994). Rather, in reviewing a motion for summary judgment, a court must determine
whether “the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at
251–52. The evidence, all facts, and any inferences that may permissibly be drawn from the facts
must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs.,
Inc., 504 U.S. 451, 456 (1992). However, “[t]he mere existence of a scintilla of evidence in
support of the plaintiff’s position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252; see Dominguez v. Corr. Med.
Servs., 555 F.3d 543, 549 (6th Cir. 2009).
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III.
Discussion
The Defendants assert that they are entitled to summary judgment on all counts of the
Plaintiffs’ Complaint. The Court first addresses the Plaintiffs’ age discrimination claim and then
turns to their contract and tort claims.
A.
Count One - Age Discrimination
The Plaintiffs bring their claim of age discrimination under Ohio Revised Code §
4112.02. “Age discrimination claims brought under the Ohio statute are ‘analyzed under the
same standards as federal claims brought under the [ADEA].’” Blizzard v. Marion Technical
Coll., 698 F.3d 275, 283 (6th Cir. 2012) (quoting Wharton v. Gorman–Rupp Co., 309 F. App’x.
990, 995 (6th Cir. 2009)). See also Alexander v. Columbus State Comm. Coll., — N.E.3d —,
2015 WL 3540418, at *7 (Ohio Ct. App. 2015) (citing Mauzy v. Kelly Servs., Inc., 664 N.E.2d
1272, 1276 (1996)) (“In deciding cases brought under R.C. 4112.14 and 4112.02, Ohio courts
may rely on federal antidiscrimination case law”). A plaintiff “may establish a violation of the
ADEA by either direct or circumstantial evidence.” Geiger v. Tower Auto., 579 F.3d 614, 620
(6th Cir. 2009). Here, the Plaintiffs assert that they have direct and circumstantial evidence that
the Defendants discriminated against them on the basis of their age in terminating their
employment. The Court discusses the Plaintiffs’ direct and circumstantial evidence separately.
1.
Direct evidence of discrimination
The Plaintiffs assert that Tellermate’s employees and agents made numerous ageist
statements that are direct evidence that Tellermate terminated their employment because of their
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age. “Direct evidence is evidence that proves the existence of a fact without requiring any
inferences.” Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004)
(collecting cases). In the context of age discrimination, direct evidence is evidence, if believed,
that would permit a jury to conclude that age was the “but for” cause of an adverse employment
action. Scheick v. Tecumseh Public Schools, 766 F.3d 523, 530 (6th Cir. 2014). If a plaintiff
presents direct evidence of discrimination, “the plaintiff’s case-in-chief is met, and the burden
shifts to the employer to prove by a preponderance of the evidence that it would have made the
same decision absent the impermissible motive.” Chattman v. Toho Tenax Am., Inc., 686 F.3d
339, 346–47 (6th Cir. 2012) (internal quotation marks and citation omitted).
a.
Alleged plan to fire older employees and replace them with younger employees
The Plaintiffs begin their opposition to the Defendants’ motion for summary judgment
with the assertion that they were the “victims of defendants announced plan to replace
Tellermate Inc.’s older salesforce with a much younger generation.” Pls.’ Mem in Opp. at 9.
They support this assertion with a recitation of age-related comments made by individuals
having some connection with TLH and Tellermate, together with a narrative of Tellermate
employees who allegedly left their employment as a result of this plan. The Plaintiffs’ narrative
is based entirely on the Plaintiffs’ own conclusions about why their coworkers left and/or
inadmissible hearsay. The Plaintiffs have simply failed to offer any probative evidence which
would support a reasonable jury’s finding that any such plan existed. To the extent they have
offered evidence of specific ageist comments, the Court will give further attention to them
below.
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b.
Ageist comments
An employer’s discriminatory comments may constitute direct evidence that an employee
who was the subject of an adverse employment action was a victim of discrimination. The
Defendants assert that any ageist remarks made by their officers or employees were stray
remarks that do not constitute direct evidence of age discrimination. In the Defendants’ view, the
allegedly ageist comments identified by the Plaintiffs were: (1) ambiguous, (2) isolated, (3)
temporally remote from the time of the Plaintiffs’ termination, and (4) made by persons not
involved in the decision to terminate the Plaintiffs’ employment.
In response, the Plaintiffs argue that the Defendants’ allegedly ageist comments are, in
fact, direct evidence of age discrimination. Citing Chattman v. Toho Tenax America, 686 F.3d
339, 347 (6th Cir. 2012), the Plaintiffs maintain that discriminatory comments regarding an
employee’s age constitute direct of age discrimination even if they are not temporally proximate
to an adverse employment action.
Here, the Plaintiffs identify several statements by Defendant Tellermate’s employees or
agents that they believe are direct evidence of age discrimination. The Court addresses each of
these statements in turn.
i.
Edgar Biss
Mr. Biss was the founder of the company and a Director of THL who retired from
Tellermate in 2006. In her deposition, Mrs. Brown testified about an allegedly ageist comment
Mr. Biss made sometime in the early 2000s:
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Ms. Brown:
Edgar Biss made a comment on several occasion that I thought was,
looking back at it now seemed rather ageist, and I think he said this was
“We like to hire bright young things here at Tellermate.”
Counsel:
Were you privy to that comment that you claim you heard?
Ms. Brown:
Oh, I heard that one.
Counsel:
Where was that?
Ms. Brown:
I can’t remember exactly where I was but it had been – it’s been a while
since I talked to Edgar.
Counsel:
Any estimate of the year that took place?
Ms. Brown:
It was in the early 2000s.
Counsel:
What was Mr. Biss’s role with Tellermate in 2011?
Ms. Brown:
I believe he’s still the owner of the company.
Christine Brown Dep. at 46, doc. 72-7.
The record is devoid of any evidence about the context in which these remarks were
made, whether they were made in a social setting or a business setting, whether they were
directed to a group as part of a statement on hiring practices or part of a lighthearted casual
conversation with another individual. Nor is there any evidence of just what role Mr. Biss had
with the company at the time this statement was made or whether there is any likelihood that his
comments were ever made known to any of the individuals later involved in the Plaintiffs’
termination. Without such information, the Court is unable to evaluate the significance of this
comment. Standing alone, it would, at most, be weakly probative of age-related bias on the part
of Mr. Biss. Considering further that the comment was made about ten years before the Plaintiffs
were terminated and that it was made by someone who had retired from Tellermate five years
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before their termination, it would not be probative as direct evidence of an age-based animus
attributable to Tellermate at the time the Plaintiffs were terminated.
ii.
Jon Sopher
Mr. Sopher is the chairman of THL’s board of directors. In his affidavit, Mr. Brown,
states:
Jon Sopher, THL’s Chairman of the Board of Directors, stated during a
Tellermate, Inc. sales meeting in November 2006 I attended that we looked like a
pretty old and aged sales force and that what he really thought the company
needed was a refresh and to hire some young college-age kids to sell the
Tellermate product, including to pubs.
Robert Brown Aff. at ¶ 18, doc. 72-1. The Plaintiffs have also filed the affidavit of Kenneth B.
Saunier, a former Tellermate employee. His affidavit also refers to Mr. Sopher’s statements at
the 2006 sales meeting: “At a meeting in or about November 2006 in Atlanta Georgia, Jon
Sopher of Tellermate stated that Tellermate would be better off replacing its existing sales force
with younger college-age kids.” Saunier Aff. at ¶ 2, doc. 72-2. Both Brown and Saunier claim
that Sopher repeated these statements at the 2007 sales meeting. See Robert Brown Aff. at ¶ 22;
Saunier Aff. at ¶¶ 3–4. Paul Rendell’s affidavit supports their claim that Sopher spoke at length
at these meetings. See Rendell Decl. at ¶ 22, doc. 52-1.
Courts consider four factors to determine whether an employer’s comments demonstrate
an age bias:
(1) whether the statements were made by a decision-maker or by an agent within
the scope of his employment; (2) whether the statements were related to the
decision-making process; (3) whether the statements were more than merely
vague, ambiguous or isolated remarks; and (4) whether they were made proximate
in time to the act of termination.
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Skelton v. Sara Lee Corp., 249 F. App’x 450, 455 (6th Cir. 2007) (citing Peters v. Lincoln Elec.
Co., 285 F.3d 456, 477–78 (6th Cir. 2002)). “[N]one of these factors is individually dispositive
of age discrimination, but rather, they must be evaluated as a whole, taking all of the
circumstances into account.” Peters, 285 F.3d at 478 (citing Cooley v. Carmike Cinemas, Inc., 25
F.3d 1325, 1330 (6th Cir. 1994)).
Under this framework, the Defendants maintain that Sopher’s comments do not amount
to direct evidence of age discrimination because they “were (a) ambiguous; (b) isolated; (c)
temporally remote from the Browns’ terminations; and (d) made by [a person] wholly
uninvolved in the decision to terminate the Browns.” Defs.’ Mot. for Summ. J. at 16; Defs.’
Reply at 3, doc. 76. In the Court’s view, Sopher’s comments were not ambiguous or vague;
indeed, his comments made clear that he believed Tellermate should “refresh” its salesforce by
replacing “pretty old and aged sales force” members. Nor were his comments isolated. He
repeated them twice at a prominent gathering of Tellermate’s salesforce and management.
Further, Sopher was not “wholly uninvolved” in the decision to terminate the Browns. In
determining whether a speaker’s comments were evidence of direct discrimination, part of the
relevant inquiry is whether the speaker “was in a position to influence the alleged [adverse
employment] decision.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 355 (6th Cir.
1998). See also Griffin v. Finkbeiner, 689 F.3d 584, 595 (6th Cir. 2012) (“Generally,
discriminatory comments can qualify as evidence that a particular decision was discriminatory if
the speaker was in a position to influence the alleged decision.” (citation and internal quotation
marks omitted)). That Sopher did not actually terminate the Plaintiffs ignores that he “was in a
position to shape the attitudes, policies, and decisions” of Tellermate’s managers, including Lunn
who ultimately terminated the Plaintiffs. See Ercegovich, 154 F.3d at 355 (citing Emmel v.
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Coca–Cola Bottling Co. of Chicago, 95 F.3d 627, 632 (7th Cir. 1996) (biased remarks
corroborate plaintiff’s discrimination claim where remarks were made by “top policymakers in
the company . . . who [we]re ultimately responsible for the company’s employment practices”);
Tuck v. Henkel Corp., 973 F.2d 371, 376–77 (4th Cir. 1992) (biased statements of head of
corporation’s R & D Group were probative evidence of age discrimination against plaintiff
where speaker may have influenced actual decisionmakers), cert. denied, 507 U.S. 918 (1993)).
In Talley v. Bravo Pitino Restaurant, Ltd., the Sixth Circuit considered, inter alia,
whether the plaintiff, an African-American employee of the defendant, presented direct evidence
to support his claim of race discrimination. 61 F.3d 1241, (6th Cir. 1995), overruled on other
grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). The plaintiff worked for the
defendant as a sous chef from November 1990 until April 1992. Id. at 1243. After participating
in an after-hours party at the defendant-restaurant, the plaintiff, along with numerous other coworkers, was terminated. Id. at 1244. Approximately a week after his termination, the defendant
rehired seven of the plaintiff’s co-workers, all of whom were white. Id. The defendant hired a
white sous chef to fill the plaintiff’s position. Id.
The plaintiff presented evidence that, during the course of his employment, the
defendant’s owners, one of whom worked as its general manager, frequently used racial slurs
when referring to African-Americans. Id. The Court concluded that evidence that both owners
“had made racist comments which constitute direct evidence that plaintiff’s termination may
have been racially motivated.” Id. at 1249. The Court reached this conclusion despite (1) the
owners’ comments not addressing the plaintiff specifically and (2) the lack of temporal
proximity between the owners’ racist comments and the plaintiff’s termination.
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In DiCarlo v. Potter, the plaintiff brought, inter alia, a national origin discrimination
claim against the defendant following his termination from his position as a mail processor for
the United States Postal Service. 358 F.3d 408 (6th Cir. 2004) overruled on other grounds by
Gross, 557 U.S. at 180. The plaintiff worked as a probationary employee from January through
April of 2000. Id. at 411. The plaintiff’s supervisor, Timothy Bailey, conducted monthly reviews
of the plaintiff’s work performance and consistently reported that his work performance was
deficient. Id. at 411–12. During the three months the plaintiff worked for the postal service,
Bailey allegedly made disparaging remarks about the plaintiff’s national origin. Id. at 413. The
plaintiff presented evidence that Bailey called him a “dirty wop” and complained that “there
were too many dirty wops around [the facility].” Id. The defendant subsequently terminated the
plaintiff’s employment based on Bailey’s recommendation. Id.
The Sixth Circuit reversed the district court’s grant of summary judgment on the
plaintiff’s national origin discrimination claim. After finding that Bailey had decision-making
authority with respect to the decision to terminate the plaintiff, the court then turned to whether
Bailey terminated the plaintiff “because of his predisposition to discriminate on the basis of
national origin.” Id. at 416. In the court’s view, this issue required it to determine whether there
was a causal connection between Bailey’s discriminatory remarks and his recommendation that
the plaintiff be terminated. Id. at 416–17. The court concluded that Bailey’s derogatory reference
to the plaintiff’s Italian-American heritage three weeks prior to the plaintiff’s termination was
sufficient to establish such a causal link between the two events. Id. at 417. The court
emphasized the temporal proximity between the discriminatory act and the plaintiff’s termination
and concluded that, in the case before it, causation could “be demonstrated with a lesser quantum
of evidence than in other cases not involving such a tight time line of events.” Id. The Court
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reached this conclusion despite Bailey’s derogatory statements not being made in relation to the
decision to terminate the plaintiff’s employment.
Less than a month after the Sixth Circuit’s ruling in DiCarlo, it issued its opinion in
Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544 (6th Cir. 2004). The plaintiffs in
Rowan were employed at the defendant’s uranium enrichment plant in Oak Ridge, Tennessee. Id.
at 546. During their employment in the plant’s environmental compliance department, the
plaintiff’s supervisors made comments about the need to lower the average age of the plant in
connection with planned layoffs. Id. at 546–47. Further, the plaintiffs’ immediate supervisor
occasionally called them “old farts.” Id. at 547. The defendant laid-off the plaintiffs as part of a
reduction in force, and the plaintiffs subsequently filed an age discrimination lawsuit against the
defendant. Id. at 546–47.
After analyzing these comments, the court concluded that ageist comments unrelated to
the decision to terminate the plaintiffs did not constitute direct evidence of discrimination.
Specifically, the court held, “[s]ince the plaintiffs do not allege that [those statements] were
made in relation to the decision to discharge the plaintiffs as part of the reduction in force, an
inference is required that [age] bias may have played a role in the decision to select these
plaintiffs.” Id. at 550.
Sixth Circuit panels have recognized the tension between Rowan and Talley/DiCarlo. See
Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 347 (6th Cir. 2012); Hale v. ABF Freight Sys.,
Inc., 503 F. App’x 323, 330 n.6 (6th Cir. 2012); Blair v. Henry Filters, Inc., 505 F.3d 517, 525–
26 (6th Cir. 2007) overruled on other grounds by Gross, 557 U.S. at 177 n. 4. As the court in
Blair explained:
We note, however, that there exists some tension in the law of this circuit. In
Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241 (6th Cir. 1995), we held that
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racist comments by the plaintiff's managers “constitute[d] direct evidence that
plaintiff’s termination may have been racially motivated,” notwithstanding that
the comments were temporally removed from the termination decision and did not
address the plaintiff in particular. Id. at 1249. Similarly, in DiCarlo, a supervisor
told an Italian-American employee that there were too many “dirty wops”
working at the facility; about two weeks later, the supervisor terminated the
employee. DiCarlo, 358 F.3d at 412-13. Because the slurs were uttered by an
individual with decision-making authority regarding the plaintiff's job, we held
that these statements were direct evidence of national-origin discrimination. Id. at
416.
As an initial matter, we observe that this court decided both Talley and DiCarlo
before Rowan and that “[r]eported panel opinions are binding on subsequent
panels.” 6 Cir. R. 206(c); United States v. Abboud, 438 F.3d 554, 567 (6th Cir.
2006) (when two cases reach irreconcilable conclusions, the earlier-decided case
controls). Further, we see no principled reason for concluding that race-based and
national-origin-based slurs are such overpowering evidence of discrimination that
no inference is necessary to connect the expressed discriminatory animus to the
adverse employment action, but mocking an older employee’s age is not.
Although Rowan did not discuss Talley or DiCarlo, we remain open to the
possibility but do not determine that Rowan can be distinguished from these
earlier cases.
505 F.3d at 525–26 (footnote omitted). Citing Blair, the Chattman panel also noted that:
[t]here is some tension in our precedent on the issue of when direct evidence can
be based on discriminatory statements that are not temporally proximate to an
employment decision. . . . Even if we assume that these cases are in conflict, we
are bound by Talley and DiCarlo, which were both decided before Rowan.
686 F.3d at 347.
Sopher made his statements about the need to reduce the age of Tellermate’s salesforce in
his position as Chairman of the THL Board. Although THL and Tellermate are separate
corporations, they have overlapping directors. Indeed, Sopher made the comments in question at
two Tellermate sales meetings attended by Tellermate’s US regional sales managers, marketing
executives, and officers. Paul Rendell, a director of THL and its predecessor, since early 2006, is
the Chief Executive Officer of Tellermate. Likewise, David Lunn, a director of THL is the Group
Sales Marketing Director of THL’s British subsidiary, Tellermate LTD. Lunn reports to Rendell,
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and Rendell assigned Lunn to oversee Tellermate’s sales force. The Browns reported to Lunn,
and it was Lunn who terminated their employment after consulting with and receiving the
approval of Rendell. Rendell would have been aware of the statements made by Sopher at the
2006 and 2007 sales meetings. It would be fair to infer that the comments of Sopher, the
chairman of the THL board, about Tellermate hiring practices would have some influence on
fellow board-member and Tellermate CEO Rendell. It would likewise be fair to infer that the
sentiments conveyed by Sopher to Rendell would be transmitted to the person Rendell put in
charge of the Tellermate salesforce, Lunn. 1
“[A] corporate decision maker’s express statement of a desire to remove employees in
the protected group is direct evidence of discriminatory intent.” Nguyen v. City of Cleveland,
229 F.3d 559, 563 (6th Cir. 2000) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,
121 (1985); LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 379–80 (6th Cir. 1993)).
The context and audience of Sopher’s statements are clear. They were made by the Chairman of
the Board of Tellermate’s parent corporation at sales meetings attended by all of Tellermate’s
executives and sales managers. This context and the clarity of the message conveyed by these
comments, magnify their importance and relevance. Notwithstanding the fact that they were
made four and five years before the Browns were terminated, a jury could reasonably conclude
that they influenced the employment decisions later made by Rendell and Lunn. See Talley, 61
F.3d at 1249 (concluding that racist remarks made by the defendant’s owners constituted direct
evidence of discrimination despite the lack of temporal proximity between the remarks and the
plaintiff’s termination). Hiring policies articulated at the highest levels of corporate management
1
Sopher’s direct involvement in Tellermate’s sales operations is evidenced by the presence of his initials
on the agenda of a Tellermate management meeting held on April 11, 2012. April 11, 2012 Management Meeting
Agenda, doc. 72-45. The agenda indicated that Sopher would present a “North America sales & marketing review.”
Id.
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are likely to have enduring effect. Sopher, as Chairman of the THL Board, “was in a position to
shape the attitudes, policies, and decisions of” the company and its subsidiaries, and “[w]hen a
major company executive speaks, everybody listens in the corporate hierarchy.” Ercegovich, 154
F.3d at 355 (citations and internal quotation marks omitted).
In light of Nguyen, Talley, and DiCarlo, and evaluating all of the factors as a whole,
Peters, 285 F.3d at 478 (citing Cooley, 25 F.3d at 1330), the Court finds that Sopher’s comments
are direct evidence from which a jury could conclude that the Plaintiffs were terminated because
of their age.
iii.
David Lunn
Rendell placed Lunn in charge of the Tellermate salesforce in May 2009. In that role,
Lunn was the Plaintiffs’ direct supervisor who made the decision to terminate them. The
Plaintiffs identify multiple, allegedly ageist statements made by Lunn that they believe are direct
evidence of discrimination. According to Mr. Brown, Lunn made one such statement at the first
Tellermate sales meeting Lunn attended:
[Lunn] introduced [the Plaintiffs] by saying: “And so now we will hear from
Grandma and Grandpa Brown.” We had no grandchildren at the time and Mr.
Lunn knew we had no grandchildren at the time from conversations with us. All
of the existing sales force was in that meeting, as were Jason Flommerfelt and
Elizabeth Jaillet from marketing. I am unsure of the precise date of this meeting,
but believe it occurred in the summer of 2009. Mr. Lunn does not deny in his
Affidavit that he made these comments.
Robert Brown Aff. at ¶ 24. In the Court’s view, ageist ridicule by the decision-maker responsible
for the Plaintiffs’ termination is direct evidence of age discrimination.
The Plaintiffs also cite to a letter sent to Defendant Tellermate on behalf of Frank Mecka,
a former co-worker of the Plaintiffs. In this letter, Mecka’s attorney alleged that Tellermate and
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Lunn discriminated against Mecka on the basis of his age. Jan. 7, 2010 Mecka Letter, doc. 72-5.
The letter alleged the existence of numerous, ageist comments and remarks made by Lunn. Id. at
1–2. The statements within this letter are inadmissible hearsay and will not be considered by the
Court at summary judgment.
Finally, the Plaintiffs argue that Lunn’s reference to Mrs. Brown’s age in an email
regarding his decision to terminate her employment constitutes direct evidence of age
discrimination. On May 31, 2011, Lunn emailed Trisha Landrum, a HR Specialist at Insperity:
To cut a long story short, we have a husband and wife team based up in Ohio.
Mr Bob Brown is the Regional Manager.
Mrs. Chris Brown is the Account Manager
Sales in this territory are very poor and we are having trouble rationalizing the combined
expense of hiring the pair.
I m considering terminating Chris Browns contract at then end of June. This will be a lay
off.
Are there any special considerations we need to be aware of?
Debbie will fill you in with length of service. Chris is 50 years old.
Dave
May 31, 2011 Lunn Email at 3, doc. 72-27 (errors in original). Lunn’s reference to Mrs. Brown’s
age, without more, is not probative of age bias and does not amount to direct evidence of age
discrimination.
iv.
Shea Heer
Ms. Heer is a sales training consultant which Tellermate retained to conduct a sales
training meeting in New Orleans in early 2011. According to Mr. Brown, at that training
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meeting: “Herr commented that ‘Boomers are technically inept.’ [The Plaintiffs] were the only
baby boomers in the room and were upset by the comment. David Lunn laughed at her comment.
Tellermate sells technical products, and technical skills and knowledge are required in order to
sell Tellermate’s products.” Robert Brown Aff. at ¶ 45. The Browns speculate that Heer is
related to Lunn, id., but they have no firsthand knowledge of that and there is no evidence in the
record to support it.
Heer was not an employee of Tellermate, and there is no evidence that she had the ability
to influence the decision to terminate the Plaintiffs’ employment. No context is provided for her
statement, and there is no evidence that she was referring to the Browns or any other Tellermate
employees. Standing alone her statements could refer to the clients of Tellermate or the general
population. There is no evidence that her remark was inspired or suggested by anyone at
Tellermate or that it reflected the views of Tellermate. Heer’s comment does not qualify as direct
evidence of age discrimination by Tellermate.
c.
Conclusion
The Court finds that the ageist statements of Jon Sopher and David Lunn are probative
direct evidence of discrimination from which a reasonable jury could find that age discrimination
was a “but for” cause for the termination of the Plaintiffs’ employment.
2.
Indirect evidence of age-based discrimination
The Defendants maintain that the Plaintiffs cannot establish a prima facie case of age
discrimination because they were not replaced by a substantially younger person. Instead, the
Defendants argue, the Plaintiffs’ duties were redistributed among Defendant Tellermate’s
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remaining employees, which does not amount to replacement as a matter of law. Moreover, the
Defendants insist that the Plaintiffs cannot show that they were treated worse than any similarlysituated employee. They emphasize that Defendant Tellermate’s salesforce included numerous
individuals over the age of 40 at the time of the Plaintiffs’ termination.
The Plaintiffs offer several arguments in response. First, they contend, the Defendants
replaced Mrs. Brown with Charity Meyers and Bobby Taylor, both of whom are substantially
younger than Mrs. Brown. Second, the Plaintiffs assert, their termination permitted the retention
of numerous substantially younger coworkers. Third, the Plaintiffs argue, their similarly-situated
and substantially younger coworkers were treated better than them.
“When a plaintiff seeks to establish age discrimination indirectly, as here, the plaintiff
may establish discriminatory intent by utilizing the analysis set forth in McDonnell Douglas, as
first adopted and modified by Ohio courts in Barker v. Scovill, Inc., 6 Ohio St.3d 146, 451
N.E.2d 807 (1983), and lastly by Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 175, 803
N.E.2d 781, 2004–Ohio–723.” Alexander, 2015 WL 3540418, at *7. Under Coryell, a plaintiff
may establish a prima facie case of age discrimination by showing that:
(1) that he or she was a member of the statutorily protected class, (2) that he or
she was discharged, (3) that he or she was qualified for the position, and (4) that
he or she was replaced by, or that the discharge permitted the retention of, a
person not belonging to the protected class.
Coryell, 803 N.E.2d at 784–85. (citation and quotation marks omitted). “[T]he fourth element is
modified to require replacement not by a person outside the protected class, but merely
replacement by a significantly younger person.” Grosjean v. First Energy Corp., 349 F.3d 332,
335 (6th Cir. 2003) (citation omitted); see also Coryell, 803 N.E.2d at 787. A plaintiff may also
satisfy the fourth element of the prima facie case by demonstrating that a “comparable nonprotected person was treated better.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)
18
(internal quotation marks omitted). See also Wylie v. Arnold Transp. Servs., Inc., 494 F. Supp.
2d 717, 723 (S.D. Ohio 2006) (collecting cases) (“Ohio courts have recognized, as has the Sixth
Circuit, that the fourth element of the prima facie case of discrimination can be replaced with
proof that a comparable person, outside the protected class, was treated better than the plaintiff”).
Here, there is no dispute that the Plaintiffs were qualified for their positions. Indeed, the
record is clear that they held their positions for many years and received promotions as well as
numerous awards based on their performance. Further, there is no dispute that they were
discharged or that they were members of the statutorily protected class. However, the parties
disagree as to whether the Plaintiffs can satisfy the fourth prong of the prima facie case.
“A person is replaced only when another employee is hired or reassigned to perform the
plaintiff’s duties.” Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990) (citing Sahadi v.
Reynolds Chem., 636 F.2d 1116, 1117 (6th Cir. 1980)). Conversely, “a person is not replaced
when another employee is assigned to perform the plaintiff’s duties in addition to other duties, or
when the work is redistributed among other existing employees already performing related
work.” Barnes, 896 F.2d at 1465.
The record before the Court is mixed and contains conflicting testimony and
documentary evidence concerning facts material to the Court’s analysis of whether the Plaintiffs
were replaced by, or that their discharge permitted the retention of, a substantially younger
person. There is a genuine issue of material fact as to whether the Plaintiffs were replaced by, or
their termination permitted the retention of, Theresa Murphy, 2 Charity Meyers, Bobby Taylor,
2
At the time of Mr. Brown’s termination, he was 54 years old. Theresa Murphy, a fellow regional manager,
was 43 years old. Under Coryell, an eleven year age difference satisfies the substantially younger requirement. See
Vossman v. AirNet Sys., No. 12AP–971, 2013 WL 5745284, at *4 (Ohio Ct. App. Oct. 22, 2013) (“Here, defendants
filled plaintiff’s position with a pilot who was 11 years younger than plaintiff. Considering the circumstances of the
case, we cannot find the trial court erred in determining plaintiff's replacement was substantially younger.”); see also
Grosjean, 349 F.3d at 336 (“Age differences of ten or more years have generally been held to be sufficiently
substantial to meet the requirement of the fourth part of age discrimination prima facie case”).
19
David Ten Kate, Michael Stafford, or Gudalupe Ramirez. Consequently, the Court finds that the
Plaintiffs have presented sufficient evidence to satisfy all of the elements of a prima facie case of
age discrimination under Ohio law.
Further, the Plaintiffs have presented the Court with evidence that their similarly-situated
and substantially younger coworkers were treated better than them. This is an additional method
by which the Plaintiffs can satisfy the fourth prong of a prima facie case of age discrimination.
See Mitchell, 964 F.2d at 582. “[A] plaintiff need not demonstrate an exact correlation with the
employee receiving more favorable treatment to be considered similarly situated. Instead, a
plaintiff need show only that he and his comparator were similar in all of the relevant aspects.”
Wheat v. Fifth Third Bank, 785 F.3d 230, 238 (6th Cir. 2015) (citational and internal quotation
marks omitted). Here, too, the record is mixed. There is no dispute that Lunn supervised the
Tellermate salesforce and that Tellermate retained many of the Plaintiffs’ substantially younger
coworkers after terminating the Plaintiffs’ employment. However, there is a genuine issue of
material fact as to whether: (1) the Plaintiffs had the same responsibilities and duties as their
substantially younger coworkers and (2) the Plaintiffs performed those responsibilities and duties
at a level comparable to their substantially younger coworkers. Under this alternative approach,
the Court finds that the Plaintiffs have presented sufficient evidence to satisfy all of the elements
of a prima facie case of age discrimination under Ohio law.
3.
Pretext
Tellermate asserts that its decision to terminate the Plaintiffs’ employment was based on
their unsatisfactory sales production and that their age played no role in that decision. The
Plaintiffs assert to the contrary that their sales results exceeded that of all other Tellermate sales
20
employees in 2010, the year preceding their dismissal and that they were on track to achieve
similar success in 2012, but were impeded by a variety of adverse actions taken by Tellermate.
Those adverse actions included reducing their sales territory and reassigning lucrative accounts
to others; reducing the number of tradeshows they could attend to a fraction of those attended by
other sales employees; and requiring them to spend an inordinate amount of their time on a
product which was plagued with defects. The Plaintiffs also claim that Tellermate manipulated
their sales quotas in order to set them up for failure.
In the Sixth Circuit, a plaintiff may establish pretext by showing that the employer’s
proffered reason (1) has no basis in fact; (2) did not actually motivate the action; or (3) was
insufficient to warrant the action. Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d
911, 915 (6th Cir. 2013). “Regardless of which option is used, the plaintiff retains the ultimate
burden of producing sufficient evidence from which the jury could reasonably reject [the
defendants’] explanation and infer that the defendants intentionally discriminated against him.”
Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003) (citation and internal quotation marks
omitted). “[A] reason cannot . . . be a pretext for discrimination unless it is shown both that the
reason was false, and that discrimination was the real reason.” Seeger v. Cincinnati Bell
Telephone Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012) (emphases and quotation marks
omitted).
The Plaintiffs support their contentions with facts that are within their own personal
knowledge and with other facts gleaned from Tellermate’s records. They also rely upon their
own calculations based on Tellermate’s records and their analysis of the effects of Tellermate’s
actions. The Plaintiffs’ long history with Tellermate’s sales operations at the highest levels and
Mr. Brown’s position as a Regional Sales Manager provide credibility for their calculations and
21
opinions. The Court finds that the Plaintiffs have presented sufficient evidence from which a
reasonable jury could find that Tellermate’s claimed nondiscriminatory reason for their
termination was a pretext for age-based discrimination.
Further, the Plaintiffs have presented evidence that Tellermate’s explanation for their
termination has shifted over time. “An employer’s changing rationale for making an adverse
employment decision can be evidence of pretext.” Thurman v. Yellow Freight Sys., Inc., 90 F.3d
1160, 1167 (6th Cir. 1996). See also Cicero v. Borg–Warner Auto, Inc., 280 F.3d 579, 592 (6th
Cir. 2002) (stating that shifting justifications can create a genuine issue of fact whether a
proffered reason is pretext). Tellermate initially asserted that the Plaintiffs were terminated as
part of a business-related layoff. Weeks later, Tellermate stated that the Plaintiffs were
terminated for performance-related reasons. This changing rationale further supports the
Plaintiffs’ argument that Tellermate’s stated reasons for terminating them were pretextual.
4.
Liability of Corporate Entities and Individuals
The Defendants maintain that many of the corporate entities and individual defendants in
this case are not liable for any of the alleged misconduct in this case. The Court addresses each
of these arguments in turn.
a.
Individual Defendants
The Plaintiffs contend that Paul Rendell, David Lunn, Gareth Davies, Edgar Biss, John
Pilkington, and Debra Elliott are all liable for the alleged age discrimination the Plaintiffs
suffered in this case. Defendant Tellermate recognizes that individual managers may be liable for
employment discrimination under Ohio law. However, Defendant Tellermate emphasizes, only
22
Lunn was the Plaintiffs’ manager in this case, and he did not engage in any discriminatory
conduct against the Plaintiffs.
Under Ohio Revised Code § 4112, a “supervisor/manager may be held jointly and/or
severally liable with her/his employer for discriminatory conduct of the supervisor/manager.”
Genaro v. Cent. Transp., Inc., 703 N.E.2d 782, 787–88 (Ohio 1999). On the record before the
Court, there is a genuine issue of material fact as to whether Lunn and Rendell engaged in
discriminatory conduct that would subject them to liability under Ohio Revised Code § 4112.
However, there is insufficient evidence to support a finding of liability against Davies, Biss,
Pilkington, or Elliott. Judgment will be entered in their favor accordingly.
b.
Defendant THL
THL contends that it cannot be held liable for Tellermate’s actions with respect to the
Browns’ termination. According to THL, it is a separate corporation from Tellermate and is not
involved in the day-to-day operations of Tellermate, including hiring or firing decisions.
In response, the Plaintiffs insist that Tellermate and THL are “one and the same.” Pls.’
Resp. in Opp. at 47. According to them, THL: directed Tellermate’s business affairs, shared the
same officers and directors as Tellermate, and submitted proposals under Tellermate’s name and
represented that THL would make sales and supply Tellermate’s products.
In reply, THL argues that the Plaintiffs failed to present any evidence that THL was
responsible for their termination. To the extent that the Plaintiffs argue that Tellermate is the
alter ego of THL, THL emphasizes that the Plaintiffs rely solely on inadmissible hearsay.
“Generally, a parent corporation is not liable for the actions of its subsidiary, even if the
subsidiary is wholly owned by the parent corporation. However, under certain circumstances, the
23
corporate entity may be disregarded and a parent corporation and its subsidiary may be treated as
a single entity.” Starner v. Guardian Indus., 758 N.E.2d 270, 275 (Ohio Ct. App. 2001) (internal
citations omitted).
In determining whether a subsidiary is an alter ego of the parent corporation, Ohio
courts consider factors such as whether (1) corporate formalities are observed, (2)
corporate records are kept, and (3) the corporation is financially independent. See
Microsys Computing, Inc. v. Dynamic Data Sys., LLC, No. 4:05 CV 2205, 2006
WL 2225821, *6 (N.D. Ohio Aug. 2, 2006). This Court has considered additional
factors such as (1) sharing the same employees and corporate officers; (2)
engaging in the same business enterprise; (3) having the same address and phone
lines; (4) using the same assets; (5) completing the same jobs; (6) not maintaining
separate books, tax returns and financial statements; and (7) exerting control over
the daily affairs of another corporation. See id.
Estate of Thomson ex rel. Estate of Rakestraw v. Toyota Motor Corp. Worldwide, 545 F.3d 357,
362–63 (6th Cir. 2008).
In Danziger v. Luse, the Ohio Supreme Court considered whether a subsidiary bank was
an alter ego of its parent company. 815 N.E.2d 658 (Ohio 2004). The Court held that:
the separate corporate existence of the bank should be disregarded. The company
owns all of the stock of the bank and has no assets other than the bank. The
company and the bank have the same directors. All of the officers of the company
are also officers of the bank. The company and the bank hold shareholders’
meetings on the same day and at the same place. All of the income of the
company is derived from dividends paid by the bank. It is abundantly clear from
reviewing the record that the company is the bank and that in this case, the bank’s
separate corporate existence should be disregarded.
Id. at 662–63. In a brief concurrence, Justice O’Connor explained her reasoning for joining the
majority’s decision:
The determinative fact of this case is that the sole business purpose of the holding
company was to own the bank. If the holding company controlled multiple
subsidiaries or conducted banking operations on its own, the case would present a
closer question. Here, the only apparent reason to own part of the holding
company is to own the bank. This, combined with the identity of the directors and
officers of the two companies, weighed heavily in arriving at the judgment
announced today.
Id. at 663 (O’Connor, J., concurring).
24
Here, the Plaintiffs present no evidence that (1) THL and Tellermate do not observe
corporate formalities, (2) THL and Tellermate do not keep corporate records, or (3) that
Tellermate is not financially independent from THL. Instead, the Plaintiffs argue that THL
directed the business affairs of Tellermate and that THL and Tellermate “share the same officers
and directors.” Pls.’ Resp. in Opp. at 47. In the Plaintiffs’ view, THL and Tellermate are one and
the same.
The record contains little support for the Plaintiffs’ assertion. Jon Sopher, chairman of the
DHL Board of Directors, attended two meetings of Tellermate officers and sales executives in
2006 and 2007. Paul Rendell a member of the board of THL, is the Chief Executive Officer of
Tellermate. David Lunn, who is also a director of THL, was appointed by Rendell as the acting
marketing director of Tellermate. Lunn reports to Rendell both in his capacity as an employee of
Tellermate LTD and in his role as supervisor of the salesforce of Tellermate. To the extent that
officers and directors of THL and Tellermate overlap, “that factor alone is not enough to warrant
a finding that the subsidiary is an alter-ego of the parent corporation.” Garlock v. Ohio Bell Tel.
Co. Inc., No. 1:13CV02200, 2014 WL 2006781, at *6 (N.D. Ohio May 15, 2014) (collecting
cases).
In addition to overlapping directors and employees, the Plaintiffs maintain that THL was
in charge of directing the business affairs of Tellermate. The evidence proffered to support this
assertion, Mr. Brown’s affidavit, is based on hearsay and therefore inadmissible. See Robert
Brown Aff. at ¶ 94 (“We were always told that THL was in charge of directing the business
affairs of Tellermate, Inc, and THL”).
The Plaintiffs’ evidence does not establish a legal basis for finding for finding that
Tellermate was an alter ego of THL.
25
c.
Defendant Insperity
Insperity maintains that it is not liable for the actions of its former client, Tellermate.
According to Insperity, the plain language of its Customer Service Agreement (CSA) with
Tellermate provides that Insperity had no authority to terminate the Plaintiffs’ employment.
Instead, Tellermate, and Tellermate alone, was the only party that that had the right to make
personnel decisions related to its business. Further, Insperity argues that Ohio law prohibits it
from being liable as a matter of law because of its status as a professional employer organization
(PEO).
At the present time, section 4125.03(E)(1) of the Ohio Revised Code provides that “[a]
professional employer organization shall not be liable for the acts, errors, and omissions of a
client employer or a shared employee when those acts, errors, and omissions occur under the
direction and control of the client employer.” Ohio Rev. Code § 4125.03(E)(1) (West 2015)
(effective March 22, 2013). This provision would appear to exempt Insperity from liability for
Tellermate’s allegedly discriminatory acts in terminating the Plaintiffs’ employment. However,
as the Plaintiffs correctly note, they were terminated in August 2011, well before §
4125.03(E)(1) went into effect. At the time of their termination, the Ohio Revised Code did not
contain a similar provision. See Ohio Rev. Code § 4125.03 (West 2011).
On the one hand, the applicable statute and Mrs. Brown’s employment agreement 3 with
Insperity suggest that Insperity could be liable for Tellermate’s allegedly discriminatory conduct.
In 2011, the relevant Ohio statute defined a PEO as “a sole proprietor, partnership, association,
limited liability company, or corporation that enters into an agreement with one or more client
3
The Court has been unable to locate Mr. Brown’s employment agreement in the record.
26
employers 4 for the purpose of coemploying all or part of the client employer’s workforce at the
client employer’s work site.” Ohio Rev. Code § 4125.01(C) (West 2011). Under the same
statute, to “coemploy” meant “the sharing of responsibilities and liabilities of being an
employer.” 5 Id. at § 4125.01(B) (West 2011) (emphasis added). Further, the statute provided that
“[t]he professional employer organization with whom a shared employee is coemployed has a
right of direction and control over each shared employee assigned to a client employer’s
location.” Id. at § 4125.03(B) (West 2011). The language of this statute was consistent with Mrs.
Brown’s employment agreement with Insperity, which states, “[Insperity] maintains a right as a
co-employer along with [Tellermate] to make personnel decisions and to evaluate Employee’s
qualifications, duties, work assignments and job performance.” Christine Brown Employment
Agreement at ¶ 3, doc. 72-46.
On the other hand, the Client Service Agreement between Tellermate and Insperity
suggests that Insperity cannot be liable for the allegedly discriminatory acts of Tellermate. In
June 2005, Tellermate entered into a contract with Insperity’s predecessor, Administaff, to
provide human resources services to Tellermate. Client Service Agreement, doc. 52-1 at 10–20.
As part of that agreement, Insperity and Tellermate both became “co-employers of the worksite
employees assigned to [Tellermate’s] worksite.” Id. at 10. While Insperity reserved the right to
hire or terminate Insperity’s employment relationship with any worksite employees, Tellermate
retained the right to hire and fire with respect to Tellermate’s relationship with any worksite
employees. Id. The CSA provided that Insperity and Tellermate would “each be responsible for
its own compliance with all federal, state and local employment laws[.]” Id. at 11.
4
A client employer was defined as a “corporation that enters into a professional employer organization
agreement and is assigned shared employees by the professional employer organization.” Ohio Rev. Code §
4125.01(A) (West 2011).
5
The current statute contains the same definition of “coemploy.” See Ohio Rev. Code § 4125.01(C) (West
2015).
27
On the record before the Court, the business relationship between Insperity and
Tellermate is unclear. So too is the employment relationship between Insperity and the Plaintiffs.
The relevant Ohio PEO statute and Insperity’s employment agreement with Mrs. Brown suggests
that Insperity could be liable for the actions of Tellermate. In light of the mixed factual record
concerning this issue, the Court will deny Insperity’s request for summary judgment.
B.
Counts Two Through Nine
The Plaintiffs assert a variety of claims in Counts Two through Nine of their complaint
including promissory estoppel, breach of contract, conversion, detrimental reliance, unjust
enrichment and negligence. The Defendants moved for summary judgment on all of these
counts. In their response, the Plaintiffs did not oppose the Defendants motion on Counts Two
through Nine. After the Defendants filed their reply, the Plaintiffs filed a Motion for Leave to
File Surreply (doc. 80) in which they sought to address the Defendants’ arguments with respect
to Counts Two through Nine.
The Court discussed the Plaintiffs’ Motion with counsel at the oral hearing held on July
17, 2015:
Plaintiffs’ Counsel:
Mr. Obringer stated that we did not discuss the promissory
estoppel claim, the conversion claim, unjust enrichment –
The Court:
Let’s talk about that.
Plaintiffs’ Counsel:
Yes, sir.
The Court:
Defendants filed their Motion for Summary Judgment.
They addressed all of your claims, including the claims
alleged in Counts 2 through 9. And you filed your response,
and you did not oppose the Motion for Summary Judgment
on Counts 2 through 9.
28
Indeed, the only time you raised any opposition is in a
surreply, which the Court -- and you filed a Motion for
Leave to file it, and the Court denied that motion without
prejudice. Well, I am now denying it with prejudice, and
simply because it is just too late to serve opposition to a
motion in a surreply. It is not fair. So the Court considers
the motion unopposed.
Plaintiffs’ Counsel:
With regards to Counts 2 through 9, Your Honor, can I be
heard on that? We discussed the promissory estoppel claim,
we discussed the conversion claim and the fact –
The Court:
You never even suggested to the Court that you were
opposing the Motion for Summary Judgment on those
claims. You didn’t ask the Court to deny the Motion for
Summary Judgment as to those claims.
Plaintiffs’ Counsel:
Your Honor, we asked the Court to deny the Motion for
Summary Judgment in its entirety.
The Court:
Well, that doesn’t do it. I mean, the Court expects some
argument and some reason. It is just too late to do it in a
surreply.
Oral Hr’g Tr. at 68–69, doc. 241. The Plaintiffs failed to oppose the Defendants Motion for
Summary Judgment on Counts Two through Nine in a timely manner. Therefore, the Court will
grant the Defendants’ Motion with respect to Counts Two through Nine.
C.
Count Ten
In Count Ten, the Plaintiffs allege that:
Insperity assumed a duty to the Browns to properly advise, train, and
guide Tellermate so that it would not unlawfully discriminate against the Browns
and commit other unlawful acts but failed to exercise reasonable care to perform
that duty. . . . As a result of Insperity’s negligence, the Browns were unlawfully
terminated, suffered loss of commissions due to them, and suffered a loss of their
valuable stock options.
Compl. at ¶¶ 81–82.
29
Insperity argues that the Plaintiffs’ negligence action must fail. According to Insperity,
(1) it owed no duty of care to the Plaintiffs; (2) even if it did owe the Plaintiffs a duty of care, it
did not breach that duty; and (3) any negligent hiring claim made by the Plaintiffs fails because
Insperity did not employ the Tellermate managers accused of discriminating against the
Plaintiffs.
In response, the Plaintiffs assert that Insperity owed the Plaintiffs a duty to (1) prevent
them from being discriminated against on the basis of their age and (2) to properly train,
supervise, and advise Tellermate’s supervisors to prevent those superiors from discriminating
against the Plaintiffs. According to the Plaintiffs, Insperity’s duty to them arose out of the
Defendants’ joint employee handbook, the Defendants’ Client Service Agreement, and
Insperity’s employment agreements with the Plaintiffs.
“In general, a cause of action for negligence requires proof of (1) a duty requiring the
defendant to conform to a certain standard of conduct, (2) breach of that duty, (3) a causal
connection between the breach and injury, and (4) damages.” Cromer v. Children’s Hosp. Med.
Ctr. of Akron, 29 N.E.3d 921, 928 (Ohio 2015) (citing Menifee v. Ohio Welding Prods., Inc.,
472 N.E.2d 707 (Ohio 1984)). “A defendant’s duty to a plaintiff depends upon the relationship
between the parties and the foreseeability of injury to someone in the plaintiff’s position. Injury
is foreseeable when a defendant knows or should know that its act is likely to result in harm to
someone.” Nichols v. Lathrop Co., 825 N.E.2d 211, 214 (Ohio Ct. App. 2005) (citation omitted).
The Court cannot discern a legal basis for finding that Insperity owed the Plaintiffs a duty to
prevent the Plaintiffs from being subject to age discrimination. Nor have the Plaintiffs identified
grounds for such a finding in their filings here. The Court will therefore grant Insperity’s request
for summary judgment on the Plaintiffs’ negligence claim.
30
To the extent that the Plaintiffs can be understood to make a negligent training or
supervision claim, this requires them to demonstrate: “(1) the existence of an employment
relationship; (2) the employee’s incompetence; (3) the employer’s actual or constructive
knowledge of such incompetence; (4) the employee’s act causing the plaintiff’s injuries; and (5)
the employer’s negligence in hiring or supervising the employee as the proximate cause of the
plaintiff’s injuries.” Retuerto v. Berea Moving Storage & Logistics, — N.E.3d —, 2015 WL
3823281 at *9 (Ohio Ct. App. June 18, 2015) (citing Peterson v. Buckeye Steel Casings, 729
N.E.2d 813 (Ohio Ct. App. 1999)). Here, the Plaintiffs have failed to demonstrate the existence
of an employment relationship between Tellermate and Insperity. Insperity is entitled to
summary judgment on the Plaintiffs’ negligent training and supervision claim.
IV.
Conclusion
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART the
Defendants’ Motion for Summary Judgment (doc. 52).
IT IS SO ORDERED.
s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: August 27, 2015
31
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