Oster v. Huntington Bancshares Incorporated et al
OPINION AND ORDER granting in part and denying in part 50 Motion for Summary Judgment; granting in part and denying in part 58 Motion for Summary Judgment; granting in part and denying in part 81 Motion to Strike. Signed by Judge Algenon L. Marbley on 5/19/2017. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
JODY M. OSTER,
HUNTINGTON BANCSHARES INC., et al., :
Case No. 2:15-cv-2746
JUDGE ALGENON L. MABRLEY
Magistrate Judge Kemp
OPINION & ORDER
In this employment-discrimination case, Jody Oster, a long-standing in-house attorney
with Huntington Bancshares Inc. (“Huntington” or “the Bank”), alleges that she was terminated
due to gender discrimination and retaliation for complaining about her then-supervisor,
Thomas Eck. Oster filed suit in August, 2015, alleging the following causes of action:
(1) Gender discrimination, in violation of Title VII and Ohio law (Counts I and II);
(2) Retaliation, in violation of Title VII and Ohio law (Counts III and IV); and
(3) Aiding and abetting a discriminatory act, in violation of Ohio law (Count V). 1
The Bank has moved for summary judgment on all of Oster’s claims.
The Bank also raised an after-acquired evidence defense which, if proven, would limit its
damages (if any) on Oster’s underlying claims. (Doc. 30).
Oster filed a motion to strike several affidavits and other evidence that Huntington filed
in connection with its motion for summary judgment (Doc. 81), and also moved for summary
judgment on the Bank’s after-acquired evidence defense. (Doc. 58).
Oster named four defendants: Huntington Bancshares Inc., The Huntington National Bank, and
individual defendants Thomas Eck and Richard Cheap. Counts I-IV apply to all four named defendants.
(Doc. 1). Count V applies only to individual defendants Eck and Cheap. (Id.).
As explained below, Oster has shown that at least some of Huntington’s proffered
evidence is inadmissible and, therefore, should be disregarded in ruling on the Bank’s motion for
summary judgment. Likewise, Oster has presented sufficient evidence to withstand summary
judgment on all of her claims.
The Bank, moreover, has presented sufficient evidence to
withstand summary judgment on its after-acquired evidence defense, at least insofar as Oster’s
pre-termination misconduct is concerned. For these reasons, the Court: (1) GRANTS in part
and DENIES in part Oster’s motion to strike; (2) GRANTS in part and DENIES in part the
Bank’s motion for summary judgment; and (3) GRANTS in part and DENIES in part Oster’s
motion for summary judgment on the Bank’s after-acquired evidence defense.
A. Factual Background
Jody Oster served as in-house counsel for Huntington for over twenty-one years.
She eventually led the Special Assets Division (“SAD”), a department responsible for
commercial loan workouts and litigation relating to defaulted or troubled commercial loans.
In that capacity, she represented the Bank and its affiliates in hundreds of actions in state and
federal court. For most of her tenure (November 1993 through January 2013), Oster reported to
the same individual—John Liebersbach. During that stretch, Oster enjoyed mostly positive
relationships with her supervisors and co-workers, including Huntington’s General Counsel,
Richard Cheap. That said, the Bank contends that she began exhibiting strained interpersonal
relationships with several colleagues as early as 2012. When Liebersbach retired in 2013, Oster
assumed most of his duties, including management and reporting of all significant and complex
litigation, management of the audit letter process, and the selection, engagement, and
management of outside counsel on a bank-wide basis.
1. Deteriorating Personal Relationships
If the Bank’s version of events is believed, then Oster began exhibiting troubling signs in
2012. The Bank contends that she did not get along with SAD’s leader, Fred Manning; that
another attorney, Rachel Mulchaey, left the Bank in March 2012 due, in part, to interpersonal
issues with Oster; that Cheap and Associate General Counsel Larry Case noticed strained
relationships between Oster and other attorneys, including Larissa Osborn, Becky Spainhoward,
and Annette Houck, which ultimately resulted in Spainhoward resigning, partly due to Oster’s
“toxic” nature; and that Cheap and Case noticed other strained working relationships with
colleagues and clients. The Bank also contends that Cheap requested the Human Resources
Department to conduct “stay interviews” of Legal Department employees to better understand
team dynamics and other concerns. During those interviews, several co-workers volunteered
various issues with Oster’s behavior, including the fact that she picked on a paralegal, was not a
team player, seemed retaliatory, and was dishonest at times to cover for herself.
As both parties agree, Oster received generally favorable evaluations of her legal work
and performance until mid-2014. That’s when matters took a turn for the worst, no matter whose
version of events is believed.
The Bank alleges that, in August 2014, Oster improperly bullied paralegal Susan Wangler
in front of their colleagues for receiving permission to attend a Pelatonia event on a day in which
Oster needed assistance. This incident ended in a written warning to Oster for not confronting
Wangler or her supervisor, Annette Houck (who had approved the time off), in private; Oster
levying a cross-allegation of bullying from the paralegal; and the paralegal soon transferring out
of the Legal Department due to Oster’s alleged mistreatment.
The Bank also alleges that, in 2014, Cheap considered terminating Oster as part of a
Reduction-in-Force (“RIF”). But Cheap backed off from the idea because the Bank could not
replace Oster if her job were eliminated as part of the RIF. Nevertheless, by late 2014, Cheap
continued to hold “serious concerns” about Oster’s employment moving forward.
2. Huntington Hires a New Supervisor for Oster
Matters continued to deteriorate in late 2014, when Huntington hired Thomas Eck as
Associate General Counsel.
Due to Eck’s experience with litigation, Cheap decided that,
in addition to taking over the duties for the attorney he was replacing, Eck would also manage
Oster and oversee her work as the Bank’s primary litigator. Cheap felt Eck could provide a
“fresh set of eyes” to manage Oster and to assess litigation management more generally.
Eck and Oster began sparring immediately.
Oster alleges Eck began targeting her
because of her gender from his first days at the Bank. During one early interaction, Eck
allegedly told Oster that a picture of her on Huntington’s intranet directory was “wow” and
“beautiful,” and he purportedly continued on and on about it while making Oster uncomfortable.
She contends that Cheap assisted Eck in his discrimination by telling him that he was Oster’s
“last chance,” and that if Eck’s “management of her did not result in improved interpersonal
relationships with her co-workers, Oster’s employment would be terminated.”
The Bank alleges that Eck simply was doing his job—gathering information on how the
Legal Department functioned, meeting with other attorneys and personnel, and shifting work
assignments accordingly. One of those shifts occurred in early 2015, when Eck transferred some
SAD matters from Oster to another attorney, Larissa Osborn, both due to logistical concerns and
to free-up Oster to become more involved in consumer collections.
3. Oster Alleges that Eck’s Discrimination Continued in Early 2015
Oster alleges that her relationship with Eck continued to deteriorate throughout January
and February 2015, as he increasingly micromanaged her work and chastised her for apparent
deficiencies. Of note, nearly all of these allegations come from an affidavit that Oster submitted
with her response in opposition to the Bank’s motion for summary judgment (see Doc. 84-5);
they do not stem from her deposition testimony or other evidence previously adduced. The first
flare-up occurred on January 14, 2015, when Eck allegedly scolded Oster for failing timely to
respond to a request to use outside counsel. Those requests fell in Oster’s lane but, when she
tried to explain, Eck allegedly interrupted and said, “I don’t care what happened, don’t let it
happen again.” After further attempts to explain what had occurred, Eck again purportedly
scolded Oster and told her, “You will do as you are told!”
Another incident allegedly occurred on January 20, 2015, when Eck told Oster to include
him in decision-making regarding the use of outside counsel. Oster apparently made those
decisions on her own prior to Eck’s arrival, and when she protested about the delay in running
such routine choices by her new supervisor, he allegedly responded, “I don’t care, you will do as
you are told!”
On January 28, 2015, Eck allegedly told Oster she could no longer communicate with
outside counsel, witnesses, or other colleagues—including the Bank’s General Counsel, Larry
Cheap—without first obtaining Eck’s permission. Oster claims she felt humiliated considering
her prior experience and autonomy within the Legal Department, but she maintains that she
“attempted to comply with Defendant Eck’s demands.”
Then, on January 30, 2015, Oster, her previous manager, Larry Case, and Eck met for her
2014 Performance Review. Oster received an overall score of “3” out of “5,” or “fully meets”
expectations, for 2014. 2 Nevertheless, her performance review also stated that her “relationships
with a few in the department are still strained and in need of further work (by both sides).”
On February 10, 2015, several Legal Department staff members, including Oster and
Eck, attended a staff meeting. At the end of the meeting, another attorney asked Oster whether
she had an update on the “Datacert Project,” which was not on the agenda. Oster maintains that,
because of Eck’s earlier instructions not to communicate with others without his prior approval,
she simply responded that she did not have an update to provide at that time. Oster contends that
Cheap and Eck were scheduled to meet later in the month to discuss the status of the project and
whether to abandon it or stay with it.
The next day, Oster and Eck learned that outside counsel they had previously selected for
a FINRA matter were unavailable due to a previously undisclosed conflict. Oster and Eck
scrambled to find replacement counsel. Although Cheap was involved in the discussion, Oster
alleges he deferred to her regarding her choice to use local counsel rather than counsel from
Washington, D.C., or New York City, as Eck had recommended. According to Oster, Eck then
came into her office, shut the door, and began yelling at her for not speaking with him before
talking to Cheap. Oster alleges that Cheap had contacted her directly, so she had no choice but
to respond. But Eck purportedly continued to yell at her for her apparent insubordination.
Huntington’s performance reviews operate on a 1-5 scale, with a score of “1” indicating “does not meet”
expectations; a score of “2” indicating “does not fully meet” expectations; a score of “3” indicating
“fully meets” expectations; a score of “4” indicating “exceeds” expectations; and a score of “5” indicating
the employee “far exceeds” expectations. (Doc. 85-5, PageID 2391).
Oster alleges that, because Eck’s behavior on February 11 had occurred repeatedly, with
no end in sight, “she contacted Human Resources [Representative] Stephanie Wilder, who was
assigned to the Legal Department.” Oster learned from Wilder’s manager, Amy Heaton, that
Wilder was out of the office until the following week. Heaton suggested that another HR
representative, Emily Dahs, was available if Oster needed to speak to someone right away. Oster
replied that it was “not urgent,” and that she could wait until Wilder returned the following week.
As both parties agree, however, things began to unravel the following day.
4. Matters Come to a Head on February 12, 2015
On February 12, 2015, Eck met with Oster to express concerns that she had lied during
the staff meeting when she told a colleague there was no update on the Datacert Project. Eck
believed there was a significant update—namely, that Huntington was considering abandoning
the project. As such, Eck told Oster that her response was not truthful, and he instructed her to
correct it publicly. Oster alleges that Eck was hostile and forceful throughout the meeting; that
his tone was intimidating; that he was seething and on the verge of yelling at her; and that, at one
point, he rose from his chair, gritted his teeth, and slammed his fist on the desk while berating
her for allegedly lying to her colleague. Oster alleges that she was shocked and considered Eck’s
behavior physically threatening and intimidating.
At the same meeting, Eck instructed Oster to include him on a call with Department of
Justice attorneys regarding a subpoena issued to Huntington. Oster alleges that she previously
expressed concern to Eck regarding the participation of another, new attorney on the call; she
apparently told him that his presence might signal to the DOJ that Huntington’s concerns
regarding the investigation were heightened at a time when it appeared the matter might be
coming to an end. But Eck insisted on being on the call or, at the very least, sitting in from his
own office while on mute. Oster alleges that she told Eck the latter approach would be unethical.
But, according to Oster, Eck would not take “no” for an answer. Instead, he instructed her to
follow directions, and he only backed down after a male attorney similarly recommended that
Eck not be on the call. Oster alleges that, by now, she had grown uncomfortable and warned Eck
as follows: “I’m uncomfortable. You have been harassing me and attempting to intimidate me
from the start. If I was a man, you would not be treating me this way.”
5. Oster Complains to Human Resources
Following their “explosive” meeting from February 12, 2015, Oster and Eck went their
separate ways. Oster tried to call the Bank’s General Counsel, but she could not reach him.
Instead, she began to write down a series of detailed notes regarding what had transpired.
Similarly, Eck emailed Oster to reiterate his instructions about the DOJ call and to be included in
witness interviews for a different matter. Later that day, Oster contacted Emily Dahs from
Human Resources, who was filling in for Stephanie Wilder for the week. The two women met
that afternoon to discuss Oster’s concerns.
Oster did not provide Dahs with a copy of her notes; instead, she complained that Eck
was “micromanaging” her and wanted to be included in phone calls and meetings for her
litigated matters, including the DOJ subpoena. She also told Dahs that Eck’s voice was raised,
that he told her to “do as you are told,” and that he was aggressive. Oster testified that she told
Dahs that if she were a man, Eck would not be doing this to her. Dahs, who felt Oster was upset
and distressed, said she would tell Heaton and Wilder (the other HR representatives) what had
transpired and that one of them would follow up with her. Oster expressed concern over meeting
one-on-one with Eck in the future, so she requested that someone from HR attend any such
meetings moving forward.
Dahs then informed her manager, Amy Heaton, of Oster’s account of the meeting with
Eck. Heaton called Eck to learn his side of the story. Eck denied that he raised his voice but
admitted that his tone expressed his frustration at what he believed to be Oster’s insubordination.
Heaton concluded that the relationship between Eck and Oster needed repair, so she instructed
Wilder to attend and facilitate their one-on-one meetings, as Oster had requested. Wilder then
met with Dahs to review the information Oster had initially shared. A week later, Wilder met
with Oster to discuss her initial conversation with Dahs. Wilder told Oster that she would attend
future meetings with Eck. Oster testified that she told Wilder she would not be treated this way
if she was a man. The two apparently discussed next steps for both Oster and Eck.
On February 18, 2015, Oster, Eck, and Wilder met. By then, Wilder understood Oster’s
concerns to be Eck’s management style and his expectations regarding his involvement in her
matters. Wilder decided to use the meeting to facilitate the relationship and to clarify Eck’s
expectations. Unfortunately, the meeting was unproductive due to a time-sensitive legal issue.
Nevertheless, at the end of the meeting, Wilder made Eck aware that Oster sought clarification of
his expectations regarding her work. Oster alleges that Eck denied instructing her to include him
in every call and meeting, telling her she needed his permission before going forward without
him, or instructing her that she could only speak to Cheap with Eck’s prior approval.
6. Continued Fallout from the February 12, 2015 Meeting
Because the first meeting between Eck, Oster, and Wilder was cut short, Eck sent an
email to Oster detailing his expectations, including litigation management changes he planned to
make. He expressed concern as to how Oster might perceive these changes given their recent
issues. Oster believes that Eck was concerned she might view his actions as retaliatory given her
reporting of his conduct to Human Resources.
On February 21, 2015, Oster felt slighted when she received a call from outside counsel
in the FINRA matter to discuss hourly rates. Ordinarily, she would have discussed the rates with
the attorney, but under Eck’s new policies, she could not. Oster reports feeling “humiliated” at
the end of the call. Oster told Eck about the call, but she alleges that he became upset with her
for talking with outside counsel without including him. Oster further alleges that Eck would not
accept her explanations for speaking with outside counsel and did not care that Oster had a
longstanding working relationship with the attorney. According to Oster’s affidavit, Eck then
yelled: “I’M NOT FUCKING LARRY CASE!” Following this discussion, Oster alleges that her
concerns about Eck increased; she was concerned that she would not be able to satisfy his
demands and get her work done, she felt that if she were a man, he would not be treating her this
way, and she believed that Eck treated her as if she were subservient to him.
As a result, Oster emailed Wilder to complain about Eck’s involvement in her work and
his proposed litigation management changes. In planning for their next one-on-one meeting,
Wilder asked Oster to share the “most critical” item to begin the meeting with Eck. Oster
responded as follows: “Right now, I’m most concerned about how what Tom [Eck] is doing and
how he is going about doing them. It seems he is changing things to change them and the
changes will make more work for me or make it difficult for me to do my job.”
Oster also responded to Eck’s email, in which he outlined his expectations and upcoming
departmental changes. Oster not only expressed disagreement with many of Eck’s expectations,
but she also took the opportunity to advise Eck of her expectations for him—at times instructing
Eck to respond to certain emails and demanding that he include her in various meetings. Oster
also mocked Eck’s suggestion that he valued her input, complaining that his actions were
“undermining and disrespectful” and that he was “working behind the scenes against [her].”
Around the same time, Oster began forwarding confidential and privileged emails to her
personal email account on a self-help basis so that she “had a record” against Eck. Huntington
maintains that her actions violated Bank policies and that she has thwarted discovery in this
lawsuit by refusing to provide access to her computer for forensic analysis.
7. The February 25, 2015 Meeting
On February 25, Oster and Eck met again, with Wilder sitting in for HR.
discussion centered on Eck’s instructions to, and expectations of, Oster. Oster again complained
that Eck was micromanaging her and changing her job duties and descriptions. Wilder, however,
explained that, as Oster’s manager, Eck had authority to change how litigation was managed, to
be involved in her litigated matters, and to shift Oster’s workload for the good of the department.
In Wilder’s estimate, Oster refused to accept this explanation. Wilder also felt that Oster would
not accept Eck as her manager or the changes he was trying to make within the department.
The meeting ended with Eck, Oster, and Wilder agreeing that they needed to escalate matters to
the General Counsel. Oster alleges that Eck claimed the General Counsel already approved of
everything he was doing, “as if to intimidate [her].” Oster also alleges that, at the end of the
meeting, Wilder assured her that her job was not in jeopardy and that no one wanted her to leave.
8. Huntington Decides to Terminate Oster’s Employment
Later that day, Cheap, Eck, and Wilder met to discuss Oster’s continued employment.
Wilder told Cheap that Oster would not accept Eck’s management and was resisting his efforts to
implement litigation-management changes. As a result, Wilder recommended that Oster be
terminated. The Bank contends that Cheap decided to terminate Oster’s employment due to her
history of interpersonal issues with co-workers, culminating in her current refusal to accept Eck’s
On March 4, Cheap and Wilder met with Oster to inform her of the decision. Cheap told
Oster that she was being terminated because the Legal Department was going in a “different
direction.” Unbeknownst to Cheap or Wilder, Oster had surreptitiously recorded the meeting.
Oster alleges in her affidavit that Cheap made other representations at her termination meeting
that were not true, including the fact that “nobody else in the Legal Department obviously knows
about this,” when, in fact, Eck participated in an earlier meeting regarding her termination.
9. Huntington Replaces Oster with a Female Attorney
On August 17, 2015, another female attorney, Jennifer Mountcastle, replaced Oster as
Senior Counsel, reporting to Eck. Mountcastle performs Oster’s previous duties related to
commercial litigation, including management of outside counsel representing Huntington as well
as direct representation of the Bank in court. Mountcastle also handles all internal reporting of
litigated matters, audit response letters, and other litigation-related duties performed by Oster
prior to her termination.
B. Procedural Background
On August 21, 2015, Oster filed this lawsuit against the Bank, Eck, and Cheap, alleging
gender discrimination and retaliation in violation of Title VII and Ohio Revised Code § 4112.02.
(Doc. 1). Oster also alleges that Eck and Cheap “aided and abetted” discriminatory acts in
violation of Revised Code § 4112.02(J). (Id.). The Bank has moved for summary judgment on
all claims (Doc. 50), and also has raised an after-acquired evidence defense in support of Oster’s
termination. (Doc. 30). Oster has filed a motion to strike several affidavits and other evidence
that Huntington filed in connection with its motion for summary judgment. (Doc. 81). She also
has moved for summary judgment on the Bank’s after-acquired evidence defense. (Doc. 58).
All matters have been fully briefed and argued and now are ripe for review.
II. STANDARDS OF REVIEW
A. Motion to Strike
A 2010 Amendment to Federal Rule of Civil Procedure 56 changed the mechanism for
objecting to supporting materials filed in connection with motions for summary judgment.
Foreword Magazine, Inc. v. OverDrive, Inc., No. 1:10-cv-1144, 2011 WL 5169384, at *2
(W.D. Mich. Oct. 31, 2011). Now, “motions to strike are no longer appropriate.” Id. at *2 n.1.
Instead, the Court will treat Oster’s motion as an objection under Rule 56(c)(2), which provides:
“[a] party may object that the material cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). The Court will disregard
only the inadmissible portions of Huntington’s supporting materials.
See Roshen v. IBM,
No. 2:14-cv-260, 2016 WL 950363, at *8 (S.D. Ohio Mar. 14, 2016).
B. Motions for Summary Judgment
Both parties moved for summary judgment on various claims and defenses under
Civil Rule 56. Summary judgment is proper when “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 movant bears the burden of proof on both points. Vaughn v. Lawrenceburg Power Sys.,
269 F.3d 703, 710 (6th Cir. 2001). In determining whether this standard is met, the Court must
“view the evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in its favor.” Crouch v. Honeywell Int’l, Inc., 720 F.3d 333, 338 (6th Cir. 2013).
As always, this inquiry turns on “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.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting Anderson v. Liberty Lobby
Inc., 477 U.S. 242, 251-52 (1986)).
This Opinion and Order will address matters in the following sequence: (1) Oster’s
motion to strike the Bank’s supporting affidavits and deposition testimony; (2) the Bank’s
motion for summary judgment; and (3) Oster’s motion for summary judgment on the Bank’s
after-acquired evidence defense.
A. Oster’s Motion to Strike
1. Alleged Inadmissible Hearsay Concerning Oster’s Interpersonal Conflicts
Oster first moves to strike a series of statements from Stephanie Wilder, Emily Dahs, and
Annette Houck regarding Oster’s interpersonal conflicts while at Huntington on the ground that
they constitute impermissible hearsay. (Doc. 81, PageID 2174 (seeking to exclude Wilder Aff.,
Doc. 50-6, ¶¶ 4, 7, and 8); id. at PageID 2178-79 (seeking to exclude Wilder Dep., Doc. 57,
pp. 59-63, 67, 69-72, 98-99, and 110); id. at PageID 2181-82 (seeking to exclude Dahs Aff.,
Doc. 50-3, ¶ 4); id. (seeking to exclude Houck Aff., Doc. 50-5, ¶ 7)).
Oster argues that these portions of the record constitute impermissible hearsay about her
relationships at the Bank because they merely repeat what other employees told the affiant or
deponent; she contends the statements are not based on personal knowledge. The Bank counters
that the statements are not hearsay, because they are not being used to prove the truth of the
matter asserted. Rather, the Bank is relying on the statements to show only that the defendants
had a non-discriminatory motive for terminating Oster’s employment.
See Blair v. Henry
Filters, 505 F.3d 517, 524 (6th Cir. 2007) (“By definition, only out-of-court statements offered
to prove the truth of the matter asserted are hearsay.”).
The Sixth Circuit has addressed this very issue and largely rejected Oster’s position.
See Bush v. Dictaphone Corp., 161 F.3d 363, 366-67 (6th Cir. 1998). In Bush, the plaintiff
moved to strike significant portions of an employer’s declarations supporting its summary
judgment motion because the declarations included statements made to the employer from the
plaintiff’s former colleagues that the plaintiff was “abusive and unstable,” and, in the words of
one secretary, had “gone off the deep end.” Id. There, as here, the declarations failed to identify
at least some of the plaintiff’s former colleagues who made the complaints.
Id. at 366.
Nevertheless, the Sixth Circuit affirmed admission of these statements for the purpose of
considering “the non-discriminatory grounds upon which the declarants based their decisions
with regard to the [plaintiff’s] employment status.” Id. at 367. In short, in “an employment
discrimination case, an employer can support its case on the basis of statements made to it, even
though those statements are later determined to have been untrue.” Bickley v. FMC Techs., Inc.,
No. 3:02CV7212, 2003 WL 21303409, at *4 (N.D. Ohio June 5, 2003) (rejecting plaintiff’s
hearsay argument), vacated on other grounds, 282 F. Supp. 2d 631 (N.D. Ohio 2003); see also
Jones v. Kilbourne Med. Labs., 162 F. Supp. 2d 813, 817 n.6 (S.D. Ohio 2000) (same).
At a high level of generality, Bush counsels in favor of considering the challenged
materials. The statements made by Oster’s former colleagues concerning her “toxic” nature,
Wilder’s testimony related to Oster’s former colleagues voicing their concerns about her, and the
statements made to Huntington personnel related to Oster’s interpersonal conflicts all seem
admissible to demonstrate the Bank’s non-discriminatory motivation for terminating her
employment. See Bush, 161 F.3d at 366-67. In this context, the challenged statements do not
qualify as hearsay in the first place. Id.
Nevertheless, as Oster notes, Bush’s holding was limited to statements where the
declarants were the decision-makers with regard to the plaintiff’s employment. Id. at 366 (“Each
declaration stated that the declarant, a corporate decision-maker, had been told by unidentified
co-workers that Bush was abusive or unstable.” (emphasis added)); see Daniels v. Square D Co.,
No. 3:05-0736, 2006 WL 3761924, at *7 (M.D. Tenn. Dec. 21, 2006) (“[W]here a decisionmaker learns about an employee’s behavior from others, the decision-maker can testify as to
those statements without running afoul of the hearsay rule . . . .”). Oster thus argues that, since
Cheap was the primary decision-maker who terminated her employment, statements from other
declarants (Wilder, Dahs, and Houck) do not fall under the exception from Bush. 3
In other cases, however, the Sixth Circuit has recognized the relevance of statements
made by declarants “who did not independently have the authority . . . to fire the plaintiff, but
who nevertheless played a meaningful role in the decision.” See, e.g., Ercegovich v. Goodyear
Tire & Rubber Co., 154 F.3d 344, 354-55 (6th Cir. 1998) (emphasis added) (collecting cases).
The Court, therefore, must determine whether “a reasonable jury could conclude that
[the relevant declarants were] in a position to influence [Cheap’s] decision” to terminate Oster’s
employment. Id. at 355.
Here, the challenged statements pass muster, at least with respect to Wilder and Dahs.
Wilder played a meaningful role in the decision to terminate Oster’s employment. She sat in on
all one-on-one meetings between Oster and Eck in the waning days of Oster’s employment; she
met with Cheap and Eck to discuss their options; she recommended that Oster be terminated; and
she attended the meeting when Cheap informed Oster that she was being terminated.
Accordingly, the Court will consider the Wilder materials.
As explained in Section III.B.2.b.ii., infra, Oster’s position in her motion to strike runs counter to her
position in opposition to summary judgment as to who decided to terminate her. Regardless, the Court
will apply the law as it stands to both motions.
Dahs presents a closer call, but she too played a meaningful role in the decision to
terminate Oster’s employment. After all, Dahs was the first HR representative to meet with
Oster regarding her complaints about Eck; Dahs relayed those concerns directly to Wilder; and
Wilder and Dahs met personally to review the information that Oster initially had shared.
It stands to reason that, in discussing a contentious employment situation involving two highranking in-house attorneys, Dahs imparted her knowledge regarding Oster’s interpersonal
conflicts to Wilder (whether that knowledge was true or not). Accordingly, the Court will
consider the challenged paragraph from the Dahs affidavit regarding attorney Rachel Mulchaey’s
statement that she resigned, in part, due to personal issues with Oster.
The challenged paragraph from Houck’s affidavit, however—involving paralegal Susan
Wangler’s statement that she transferred due to Oster’s mistreatment—does not pass muster,
even under the relaxed standard from Ercegovich. There simply is no reason (at this stage) to
believe that Houck played a meaningful role in the decision to terminate Oster’s employment.
Accordingly, the Court will not consider paragraph seven from Houck’s affidavit in evaluating
the Bank’s motion for summary judgment.
2. Ms. Wilder’s Notes During Exit and Stay Interviews
Oster next moves to strike two sets of notes that Wilder prepared and appended to her
affidavit on the ground that the notes constitute double hearsay—Wilder’s notes (level one),
based on out-of-court statements from other individuals (level two). (Doc. 81, PageID 2175-78
(seeking to exclude “The Wilder Notes,” Doc. 50-6, PageID 518-22)). Wilder prepared the first
set of notes during her exit interview with attorney Becky Spainhoward. Wilder prepared the
second set while conducting the “stay interviews” that Cheap asked Human Resources to
complete in 2014.
Oster argues that Wilder’s notes should be stricken because they contain two levels of
hearsay regarding derogatory comments from other Huntington employees about their
relationships with her. The Bank contends that both sets of notes qualify under the business
records exception, see Fed. R. Evid. 803(6), and that their underlying contents do not qualify as
hearsay because, again, the Bank is not using those statements for the truth of the matter
asserted, see Bush, 161 F.3d at 366-67.
To qualify under the hearsay exception for business records, the document must satisfy
four requirements: “(1) it must have been made in the course of a regularly conducted business
activity; (2) it must have been kept in the regular course of that business; (3) the regular practice
of that business must have been to have made the [record]; and (4) the [record] must have been
made by a person with knowledge of the transaction or from information transmitted by a person
with knowledge.” Redken Labs., Inc. v. Levin, 843 F.2d 226, 229 (6th Cir. 1988).
Here, the Bank has come up short in demonstrating the first and third requirements for
admissible business records under Rule 803(6). Nothing in Wilder’s affidavit or deposition
testimony suggests that she (or HR more generally) conducted exit interviews as part of
Huntington’s regularly conducted business activity, let alone that she prepared notes as part of
that regularly conducted business activity. (See Wilder Aff., Doc. 50-6, PageID 515-17). Nor
does anything in her affidavit or deposition testimony suggest that she or HR conducted
“stay interviews” in the course of a regularly conducted business activity, or that she prepared
notes of those interviews as a regular business practice. (See id.). Nor, for that matter, has the
Bank shown that creation of these notes was required as part of company procedure or Wilder’s
ordinary job duties.
If anything, Wilder’s deposition testimony suggests that the “stay interviews” were
isolated events, not regularly conducted activities of the business. (See Wilder Dep., Doc. 57-1,
PageID 1231 (acknowledging that “stay interviews” were conducted on a one-time request from
the legal management team; that not all members of the department were interviewed; and that
Annette Houck specifically asked Wilder to see if anyone had concerns with Oster)). See also
Hooks v. Regents of Univ. of Cal., 394 F. App’x 522, 530-31 (10th Cir. 2010) (finding interview
notes from a whistleblower investigation were not admissible under business records exception
because investigation did not occur in the course of a regularly conducted business activity);
Sullivan v. Temple Univ., No. 11-7305, 2014 WL 641341, at *3 (E.D. Pa. Feb. 19, 2014) (finding
that notes from hiring committee members were not admissible under business records exception
because “[t]here is no evidence that the formation of a hiring committee in this case is
defendant’s regular practice”).
To be sure, notes or summaries prepared in connection with human-resource
investigations can, and often do, fit within the hearsay exception for business records. But first,
the proponent of those notes or summaries must establish the criteria set forth above for
Rule 803(6). See, e.g., Coleman v. Jason Pharms., 540 F. App’x 302, 307 (5th Cir. 2013)
(admitting HR manager’s records where she signed an affidavit showing that the records were
made and kept in the regular course of defendant’s business, were made at or near the time of the
investigation, and were made in the course of her duties as HR manager and with her personal
knowledge); Crimm v. Mo. Pac. R.R. Co., 750 F.2d 703, 709 (8th Cir. 1984) (similar—Railroad
company had a written policy requiring that an investigation be completed and that conversations
of those interviewed “should be documented through written memoranda”); O’Brien v. IBM,
No. 06-4864, 2009 WL 806541, at *8 n.17 (D.N.J. Mar. 27, 2009) (same).
Here, the Bank has failed to make that showing, at least at this stage of the proceedings.
Accordingly, the Court will not consider Wilder’s interview notes in ruling on the Bank’s motion
for summary judgment, and the Court need not reach the second level of purported hearsay—i.e.,
the underlying out-of-court statements from the employees Wilder interviewed.
3. Personal Impressions Regarding Oster’s Performance
Oster next moves to strike statements from Richard Cheap and Larry Case on the grounds
that both gentlemen lacked personal knowledge to make their respective testimony and that their
testimony contains conclusory assertions about Oster’s strained interpersonal relationships at the
Bank. (Doc. 81, PageID 2179-80 (seeking to exclude Cheap Aff., Doc. 50-2, ¶¶ 3 and 8);
id. at PageID 2180 (seeking to exclude Cheap Dep., Doc. 62, pp. 36, 99-100, 123, 140-41);
id. at PageID 2182 (seeking to exclude Case Aff., Doc. 50-1, ¶ 4)).
Oster argues that these portions of the Cheap and Case materials are inadmissible because
neither man had personal knowledge to make statements regarding her interpersonal conflicts at
Huntington and because whatever statements they did make were too conclusory in nature.
The Bank counters that the statements remain admissible because, as long-standing supervisors
to Oster, both Cheap and Case were in positions that provided them with ample first-hand
knowledge of her interpersonal conflicts and from which they logically could summarize.
To disregard an affidavit or deposition testimony on the basis of lack of personal
knowledge, a party must demonstrate that the affiant or deponent had no foundational basis for
his or her testimony—i.e., that the affiant or deponent “did not present any foundation showing
that she was in a position to know that to which she was testifying.” See White v. Honda of Am.
Mfg., Inc., 191 F. Supp. 2d 933, 943-44 (S.D. Ohio 2002) (denying motion to strike where the
affiant’s position and context demonstrated some personal knowledge).
And, as this Court previously held, “[p]ersonal knowledge may be inferred from the
content of the statements . . . . [and] may also flow logically from the context of the affidavit.”
Reddy v. Good Samaritan Hosp. & Health Ctr., 137 F. Supp. 2d 948, 956 (S.D. Ohio 2000)
(quotation omitted). The type of statements rendered inadmissible due to lack of personal
knowledge are those provided solely “on information and belief.” Id. (quotation omitted).
Moreover, an affiant may summarize his or her impressions of a situation without rendering
those statements inadmissible on the grounds that they are conclusory. See Kehoe v. AnheuserBush, Inc., 995 F.2d 117 n.3 (8th Cir. 1993) (“If the affiants have ‘personal knowledge,’ there is
no reason why they should not be permitted to summarize their impression.”) (affirming
admission of statements that supervisors “treated Plaintiff and Bob Brunette ‘with disdain’”),
abrogated on other grounds, 643 F.3d 1031 (8th Cir. 2011).
Here, Cheap served as Huntington’s General Counsel and acted as Oster’s second-line
supervisor—a position that provided him with familiarity and awareness of her interpersonal
relationships at the Bank. Case, in turn, worked as Oster’s direct supervisor from 2012 until late
2014, when Huntington hired Thomas Eck as his replacement. Together, Cheap and Case both
worked in positions from which the Court can infer their personal knowledge regarding Oster’s
interpersonal issues and her work behavior more generally. See Kehoe, 995 F.2d at 117 n.3
(“Here, the affiants do have personal knowledge; they observed all of the principal actors in the
work place. If the view stated in the affidavits is vulnerable . . . because of their limited
opportunity to observe Hudson’s attitudes, cross-examination can easily reveal these defects and
expose them to the judgment of the jury.”). Moreover, the fact that Cheap and Case summarized
their observations regarding their “serious concerns” over Oster’s “interpersonal issues” or
“interpersonal relationships” does not render their statements inadmissible. Id.
The statements that Oster challenges from the Cheap and Case materials were not based
solely on “information and belief.” Rather, the Court can infer personal knowledge from the
contents of the statements and the context in which they arise. Accordingly, the Court will
consider the Cheap and Case materials in ruling on the Bank’s motion for summary judgment.
4. Ms. Wilder’s Purported Legal Conclusions and Lack of Personal Knowledge
Finally, Oster moves to strike three additional paragraphs from Wilder’s affidavit
regarding Oster’s initial complaint to HR on the grounds that Wilder was stating a legal
conclusion and/or lacked personal knowledge. (Doc. 81, PageID 2183 (seeking to strike Wilder
Aff., Doc. 50-6, ¶¶ 12, 15, and 17)).
Oster argues that Wilder provided bare legal conclusions when she testified that nothing
in her notes from her meetings with Oster and Eck on February 18 and 25, 2015, or her emails
from Oster around the same time, suggested that Oster’s complaints had to do with
discrimination because of gender. She also argues that Wilder lacked personal knowledge or
experience to testify regarding Oster’s mental impressions. The Bank counters that Wilder was
not making any legal conclusions regarding whether Oster was complaining about “protected
activity.” Instead, Wilder merely was testifying about facts within her personal knowledge—i.e.,
what Oster said and did in those meetings and in her emails.
The Bank is correct on both points. Wilder did not offer legal conclusions regarding the
elements of Oster’s claims. She merely testified about her perceptions and impressions from a
series of meetings and from Oster’s emails.
(See Wilder Dep., Doc. 57-1, PageID 1221
(“Q: And so you’re relying upon your notes that you took and your memory as to what she told
you the problem was? A: Correct.”); Wilder Aff., Doc. 50-6, ¶¶ 12, 15, and 17 (similar)).
Wilder testified that Oster did not make gender-based complaints to her, which is not a
legal conclusion. Rather, Wilder testified to those facts within her personal knowledge that
support Huntington’s position that Oster did not engage in protected activity. These statements
are proper and admissible at summary judgment. See White, 191 F. Supp. 2d at 943 (“While the
Court is not bound to accept such conclusions, it may consider [the affiant’s] claim on behalf of
[the defendant] together with all other relevant facts.”).
And Wilder only offered her opinion of whether Oster indicated that Eck would be
treating her differently if she were a man. (See Wilder Aff., Doc. 50-6, ¶¶ 12, 15, and 17). Lay
witnesses may offer opinion testimony that rationally relates to their perception of the witness
and helps facilitate a clear understanding of the witness’s testimony. See Fed. R. Evid. 701.
Wilder’s affidavit was based on her perception of Oster’s complaints in various interviews,
Wilder’s memory, and statements that Oster made over a lengthy period of time; her testimony,
moreover, helps explain the defendants’ understanding of Oster’s complaints.
Mattingly v. Lineback, No. 1:11-cv-753, 2013 WL 3976313, at *11 (S.D. Ohio Aug. 1, 2013)
(permitting lay opinion testimony on the issue of whether a former supervisor discriminated on
the basis of race under Federal Rule of Evidence 701).
Oster also argues that “[o]nly Plaintiff has personal knowledge of what she believed.”
True enough. But Wilder did not testify about what Oster actually believed; instead, she testified
about what Oster stated to her, what was in her notes from Oster’s interviews, and her
impressions regarding Oster’s statements. Wilder did not testify as to the ultimate issues of
whether Oster had been discriminated against or whether she actually engaged in protected
activity. Accordingly, the Court will consider paragraphs twelve, fifteen, and seventeen from
Wilder’s affidavit in evaluating the Bank’s motion for summary judgment.
For these reasons, the Court GRANTS in part and DENIES in part Oster’s motion to
strike. (Doc. 81). The Court will disregard only the following materials when ruling on the
Bank’s motion for summary judgment, while considering the rest: (1) the portion of Annette
Houck’s affidavit regarding Paralegal Wangler’s statement that she left the Legal Department
because of Oster’s mistreatment, (Houck Aff., Doc. 50-5, ¶ 7); and (2) Stephanie Wilder’s notes
from Attorney Spainhoward’s exit interview and the “stay interviews” she conducted, which
detail various interpersonal issues that Huntington employees experienced with Oster.
(“The Wilder Notes,” Doc. 50-6, PageID 518-22).
B. Huntington’s Motion for Summary Judgment
The Bank moved for summary judgment on all of Oster’s claims. A Title VII plaintiff
alleging discrimination or retaliation based on indirect evidence first must establish a prima facie
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also, e.g.,
Hoskins v. Oakland Cnty. Sherriff’s Dep’t, 227 F.3d 719, 731 (6th Cir. 2000) (Title VII gender
discrimination claims); Spengler v. Worthington Cylinders, 615 F.3d 481, 491-92 (6th Cir. 2010)
(retaliation claims). If Oster establishes a prima facie case, “then an inference of discrimination
arises.” Hoskins, 227 F.3d at 731. At that point, the burden of production shifts to the Bank,
which “must set forth a legitimate, nondiscriminatory reason for [Oster’s] discharge.”
Assuming the Bank can do so, Oster “then has the opportunity to demonstrate that the [Bank’s]
asserted reason for taking the adverse action was pretextual.” Id. Oster may demonstrate that
the Bank’s asserted reasons were pretextual by proving that they: (1) had no basis in fact; (2) did
not actually motivate her termination; or (3) were insufficient to explain her termination. Id.;
see also Spengler, 615 F.3d at 493.
1. Gender Discrimination Claims (Counts I and II)
a. The Prima Facie Case
In Counts I and II, Oster alleges gender discrimination, in violation of Title VII and Ohio
Revised Code § 4112.02. To establish a prima facie case, Oster must prove that she: (1) was a
member of a protected class; (2) suffered an adverse employment action; (3) was qualified for
her position at Huntington; and (4) was replaced by a male or treated less favorably than
similarly situated males. Peltier v. United States, 388 F.3d 984, 987 (6th Cir. 2004); see also
Mendlovic v. Life Line Screening of Am., Ltd., 877 N.E.2d 377, 383 (Ohio Ct. App. 2007).
b. Oster Has Shown a Prima Facie Case of Gender Discrimination
As both parties agree, Oster has satisfied the first three elements of her prima facies case.
Oster is a member of a protected class; she suffered an adverse employment action; and she was
qualified for her position at Huntington. Moreover, both parties agree that because Oster was
replaced by another female attorney (a member of the same protected class), her prima facie case
hinges on whether she was treated less favorably than similarly situated male attorneys.
Oster alleges that Eck treated her less favorably than two male attorneys: John Coburn
and Mark Bjertness.
Eck became their supervisor at the same time he became Oster’s
supervisor. According to Oster, this disparate treatment included micromanaging her, harassing
her, commenting on her photo, directing her not to communicate with upper-level management
without his approval, scolding her, dismissing her suggestions, telling her to do what she was
told, meeting with other employees regarding her assignments without her involvement,
deferring to the opinions offered by male attorneys while ignoring Oster’s suggestions,
demanding his involvement in meetings with outside counsel, and physically intimidating her.
Deposition testimony from Coburn and Bjertness supports Oster’s claims.
Coburn denied that Eck treated him comparably to Oster. (See Coburn Dep., Doc. 85-1,
PageID 2296-97). Coburn testified that he did not feel Eck micromanaged his work; that Eck
never demanded to be present on phone calls with state or federal regulators; that Eck did not
insist on being involved in interactions with outside counsel; that Eck did not require permission
before Coburn spoke to the General Counsel; that Eck never berated him or criticized him
publicly; and that Eck did not swear at him or physically intimidate him. (Id.).
Bjertness felt similarly. (Bjertness Dep., Doc. 85-2, PageID 2302-06). He testified that
Eck only stepped in when Bjertness needed help with something; that Eck was a “hands-off”
manager; that Eck never insisted he be present when Bjertness met with clients; that Bjertness
had the choice whether to involve Eck in meetings; that Eck never micromanaged him or told
him to do “as you are told”; that Bjertness participated in meetings and calls with regulators
without Eck’s presence; that he could communicate with the General Counsel without Eck’s
prior approval; and that Eck never got angry with Bjertness or criticized him publicly. (Id.).
Oster argues that a jury reasonably could conclude that Eck targeted, harassed, and
bullied her because of her gender. See Stallworth v. Wal-Mart Stores E., LP, No. C-150355,
2016-Ohio-2620, at ¶¶ 12, 28-31 (Ohio Ct. App. Apr. 22, 2016) (agreeing that plaintiff satisfied
prima facie case of discrimination by pointing to “evidence that [he] had been treated differently
and had been subjected to different conditions of employment than similarly-situated Caucasian
[workers]” where supervisor “never seemed to have a nice word for him, was always on his case,
and scrutinized [him] more than other workers”); Camp v. Star Leasing Co., No. 11AP-977,
2012-Ohio-3650, at ¶¶ 27-28 (Ohio Ct. App. Aug. 14, 2012) (reversing summary judgment after
finding plaintiff adduced sufficient evidence that her supervisor “did not treat male employees in
the same humiliating and demeaning ways that he treated her”).
The Bank counters that, even if Eck treated Coburn and Bjertness more favorably than
Oster, her prima facie case still fails because the male employees were not similar to her in all
respects. Citing Ercegovich v. Goodyear Tire & Rubber Co., the Bank argues that “to be deemed
‘similarly-situated’ in the disciplinary context,” the individuals with whom Oster seeks to
compare her mistreatment “must have dealt with the same supervisor, have been subject to the
same standards and have engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of them for it.”
154 F.3d at 352 (quotation omitted). The Bank argues that Oster’s comparisons fall short,
because the male attorneys she points to did not engage in exactly the same behavior.
The Court is not persuaded by the Bank’s argument. In Ercegovich, the Sixth Circuit
reversed the grant of summary judgment to the employer because the district court “appl[ied] an
exceedingly narrow reading of the Mitchell decision,” which first discussed the “similarlysituated employee” test. Id. (citing Mitchell v. Toledo Hosp., 964 F.2d 577 (6th Cir. 1992)).
As the Sixth Circuit warned, “[a] prima facie standard that requires the plaintiff to demonstrate
that he or she was similarly-situated in every aspect to an employee outside the protected class
receiving more favorable treatment” would remove too many employees “from the protective
reach of the anti-discrimination laws.” See id. at 353 (emphasis added). The Sixth Circuit
rejected such an approach, which “would undermine the remedial purpose of the antidiscrimination statutes.” Id. Instead, and as relevant here, the court reiterated that, in the
disciplinary context, the plaintiff need only show that “the individuals with whom the plaintiff
seeks to compare [her] treatment must have . . . engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or the
employer’s treatment of them for it.” Id. at 352 (quotation omitted).
Here, as in Ercegovich and other cases, Oster has “presented sufficient evidence to
support a prima facie showing of discrimination.” Id. at 353; see also Jackson v. VHS Detroit
Receiving Hosp., Inc., 814 F.3d 769, 778 (6th Cir. 2016) (“We conclude that Jackson sufficiently
demonstrated that Duncan’s and Little’s actions were of ‘comparable seriousness’ to the conduct
for which Jackson was discharged to establish a prima facie case.”).
Oster, Coburn, and Bjertness all served as in-house counsel for Huntington. Prior to their
common supervisor’s arrival, Oster had some minor difficulties with other co-workers that
Coburn and Bjertness did not experience. Even so, Oster’s performance review for the preceding
year indicated that she fully met or exceeded expectations in all areas, including her
communications skills; that any strained relationships required work “by both sides”; and that
Oster was making improvements in those areas. Nevertheless, the evidence suggests that Eck
treated Oster in a markedly different manner than her male counterparts—including in ways that
had nothing to do with Oster’s ability to “manage down” to paralegals or “manage across” to
other attorneys. This disparate treatment included commenting in a sexually suggestive manner
on Oster’s company photograph, micromanaging her day-to-day affairs, and cutting her off from
senior management and outside counsel. As in Jackson, “differences [certainly] exist between
[Oster], [Coburn], and [Bjertness].” 814 F.3d at 778. But “thorough explication of those
differences is unnecessary for eliminating the most common nondiscriminatory reasons for the
employer’s [treatment]” of Oster. Id. (brackets omitted) (quotation omitted). Put differently,
“those differences do not render [Oster] and her comparators so facially distinguishable as to
obviate the need for [Huntington] to provide any explanation for its differential treatment.” Id.
(reserving discussion of those differences “for the later stages of the McDonnel Douglas/Burdine
framework, in which the factual inquiry proceeds to a new level of specificity”).
Based on the similarities between Oster, Coburn, and Bjertness—and the fact that neither
Coburn nor Bjertness were micromanaged, harassed, dressed down in public, cut off from their
supervisors or clients, or physically intimidated, the Court concludes that Oster “has sufficiently
demonstrated circumstances giving rise to an inference of unlawful discrimination.”
As such, Oster has met her “‘not onerous’ and ‘easily met’ preliminary burden of establishing a
prima facie case” of gender discrimination for Counts I and II. Id. (quoting Provenzano v. LCI
Holdings, Inc., 663 F.3d 806, 813 (6th Cir. 2011)).
2. Retaliation Claims (Counts III and IV)
a. The Prima Facie Case
In Counts III and IV, Oster alleges retaliation, in violation of Title VII and Ohio Revised
Code § 4112.02. To establish a prima facie case of retaliation, Oster must prove the following:
(1) she engaged in activity protected by Title VII and Revised Code § 4112.02; (2) the
decision-maker knew of her protected activity; (3) she experienced an adverse employment
action; and (4) a causal connection exists between the protected activity and the adverse
employment action. Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 468-69 (6th Cir. 2012);
see also Greer-Burger v. Temesi, 879 N.E.2d 174, 180 (Ohio 2007).
b. Oster Has Shown a Prima Facie Case of Retaliation
The Bank concedes that Oster suffered an adverse employment action. The Bank argues,
however, that she cannot satisfy the other three elements of a retaliation claim because: (1) her
complaints about Eck were not protected activities; (2) Cheap (the ultimate decision-maker) had
no knowledge of Oster’s protected activity; and (3) Oster has no evidence that her protected
activity was a “but for” cause of her termination.
i. Protected Activity
To establish an actionable retaliation claim, Oster first must show that her complaint to
Huntington was about an alleged violation of Title VII. Booker v. Brown & Williamson Tobacco
Co., 879 F.2d 1304, 1312-13 (6th Cir. 1989). Complaints or disagreements that essentially target
“management decisions” do not qualify as “protected activity.” Kimbrough v. Cincinnati Ass’n
for Blind & Visually Impaired, 986 F. Supp. 2d 904, 917 (S.D. Ohio 2013).
Oster and the Bank spar over whether her complaints about Eck’s treatment qualify as
“protected activity” or were mere grievances over management decisions. Essentially, this is a
“she said, they said” issue. Oster’s deposition testimony shows that she did engage in protected
activity when she complained to Human Resources. For example, Oster testified that she told
Dahs that Eck was “physically threatening and intimidating, [and] had been verbally abusive.”
(Oster Dep., Doc. 55-1, PageID 974). She likewise told Dahs that Eck “was target[ing] me and
was harassing me for some reason,” and explicitly testified that she told Dahs, “if I was a man,
he wouldn’t be doing that to me.” (Id.). Oster testified that she told the same things to Wilder
when the two met. (Id. at PageID 984 (“I told her that I was afraid, that I was scared, that he was
harassing me and bullying me. He was intimidating me. I felt like I was you know – he
wouldn’t be doing this if I was a man. I mean, all of his behavior was just so shocking.”)).
To be sure, the Bank points to other evidence and shortcomings in Oster’s evidence
which suggest the crux of her complaints were management decisions, and not purported
employment-law violations. (See Doc. 50, PageID 491-94 (citing deposition testimony and notes
from Wilder, Dahs, Heaton, Eck, and Cheap, who all testified that Oster’s complaints focused on
Eck’s management style and managerial decisions, rather than complaints of gender
But as the Bank concedes, “[Oster’s] deposition testimony differs from this . . . record.”
(Id. at PageID 492). And the Sixth Circuit recognizes that a plaintiff may defeat summary
judgment by her own testimony so long as that testimony creates a genuine dispute of material
fact. Moran v. Al Basit LLC, 788 F.3d 201, 205 (6th Cir. 2015) (“This appeal raises one simple
question: Where Plaintiff has presented no other evidence, is Plaintiff’s testimony sufficient to
defeat Defendant’s motion for summary judgment? We hold that it is.”); Harris v. J.B. Robinson
Jewelers, 627 F.3d 235, 239 (6th Cir. 2010) (“[Plaintiff’s deposition] testimony alone is
sufficient to create a jury question regarding the alleged replacement.”) (collecting cases). Oster
has done just that through her deposition testimony. The record might be “overwhelmingly
consistent,” as the Bank argues. But at this stage, the Court’s role is not to make credibility
judgments or to weigh the evidence. Moran, 788 F.3d at 204. Instead, the Court must view the
evidence most favorably to Oster, id., and having done so, the Court concludes that she has
created a genuine dispute of fact as to whether she engaged in protected activity when she
complained to Human Resources about Eck’s conduct.
ii. The Decision-Maker’s Knowledge
To establish an actionable retaliation claim, Oster also must show that the decision-maker
knew of her protected activity.
Frazier v. USF Holland, Inc., 250 F. App’x 142, 148
(6th Cir. 2007) (“The decisionmaker’s knowledge of the protected activity is an essential element
of the prima facie case of unlawful retaliation.”). General “corporate knowledge” will not
suffice. Evans v. Prof’l Transp., Inc., 614 F. App’x 297, 300-01 (6th Cir. 2015) (“Contrary to
their contention, plaintiffs cannot establish the second element of the prima facie case of
retaliation merely by showing that [the employer] had ‘general corporate knowledge’ of their
participation in [protected litigation].”).
Oster and the Bank disagree over whether Cheap acted alone in terminating her
employment, which seems dispositive to the knowledge element. Oster points to probative,
sufficient evidence in the record that Cheap acted in concert with Eck, Wilder, and Heaton. For
example, in the Bank’s response to Oster’s discovery interrogatories, the Bank stated that
“Defendant Cheap, Defendant Eck, and Stephanie Wilder were involved in the decision to
terminate [Oster’s] employment.” (Doc. 85-4, PageID 2365). Wilder, moreover, testified that
she, Cheap, and Eck met on February 25, 2015, and discussed terminating Oster’s employment.
(Wilder Dep., Doc. 57, PageID 1247-48). Eck and Wilder both testified that they gave Cheap
input on Eck’s relationship with Oster at that meeting. (Id.; Eck Dep., Doc. 54, PageID 881).
And Amy Heaton, who was Wilder’s manager, and who knew about Oster’s complaints, testified
that Wilder recommended Oster’s termination to her and Cheap, and that Heaton and Cheap both
agreed with it. (Heaton Dep., Doc. 56, PageID 1114, 1151). Indeed, Wilder even sat in on
Oster’s termination meeting. And Oster points to other evidence suggesting that Cheap knew
more about the nature of her complaints than he later acknowledged in his deposition.
(See Doc. 84, PageID 2256). If Oster’s view is correct, then the decision-makers knew of her
protected activity because she complained directly and explicitly to Wilder about Eck’s
discriminatory conduct; Heaton knew about her complaints; and Cheap likely did too.
The Bank argues that just because a person was “involve[d]” in a termination decision
does not make her the “decision maker.” Fair enough. But the Bank does not seriously contest
the evidence that Oster pointed to which, viewed most favorably to her, suggests her termination
was the result of a group decision, from several decision-makers who knew about the protected
activity. Instead, the Bank simply points to other evidence in the record that could be viewed to
mean Cheap acted alone.
Again, the Court is left with a genuine dispute of material fact over whether Cheap acted
alone in terminating her employment. If he did, Oster’s prima facie case of retaliation likely fails
to survive summary judgment. 4 If not, then her prima facie case succeeds. Where, as here, the
evidence cuts both ways, “the judge’s function is not himself to weight [it] and determine the
truth of the matter.” Moran, 788 F.3d at 204 (quotation omitted). Instead, the Court must
determine only “whether there is a genuine [dispute] for trial.” Id. (quotation omitted). Viewing
the evidence most favorably to Oster, the Court concludes that she has established a genuine fact
dispute for trial over the decision-makers’ knowledge.
iii. Causal Connection
Finally, to establish an actionable retaliation claim, Oster must show “that the unlawful
retaliation would not have occurred in the absence of the alleged wrongful action or actions of
the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). In other
words, Oster must show that “but for” her complaint of discrimination by Eck, she would not
have been terminated. Beard v. AAA of Mich., 593 F. App’x 447, 451 (6th Cir. 2014).
Oster and the Bank argue over whether her termination resulted from her complaints
against Eck or because of years of interpersonal issues with co-workers, which culminated in her
refusal to work with a new manager. Oster argues that the timing of her termination—roughly
three weeks after she first complained about Eck’s discrimination—coupled with other
“weaknesses, inconsistencies, or contradictions” in the Bank’s proffered reasons, show that her
protected activity was the “but for” cause of her termination. (Doc. 84, PageID 2260 (quoting
Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013))).
Oster raises an alternative argument that, even if Cheap acted alone, the Court can impute Wilder’s and
Heaton’s knowledge to him. (Doc. 84, PageID 2256-57 (citing Evans, 614 F. App’x at 303)). Because
the Court finds a genuine fact dispute as to whether Cheap acted alone or in concert with others who
knew about Oster’s complaints, the Court need not reach her imputed-knowledge argument.
Temporal proximity alone can provide evidence of causality “in rare cases” where an
adverse employment action occurs “very close in time” after an employer learns of the protected
activity. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 524-25 (6th Cir. 2008) (explaining
that, in those cases, the employee “would be unable to couple temporal proximity with any such
other evidence of retaliation because the two actions happened consecutively”). Nevertheless,
where, as here, “some time elapses between when the employer learns of a protected activity and
the subsequent adverse employment action, the employee must couple temporal proximity with
other evidence of retaliatory conduct to establish causality.” Id. at 525; see Kuhn v. Washtenaw
Cnty., 709 F.3d 612, 628 (6th Cir. 2013) (same).
Oster points to evidence in the record that, if viewed most favorably to her, raises an
inference of retaliatory conduct.
As for her past performance and purported strained
relationships, that evidence includes her favorable 2014 Performance Review, which indicated
that she “fully meets” or “exceeds” expectations in all areas of her performance; deposition
testimony from Heaton and Case showing she was making an effort to cultivate her
communications skills, to improve relationships with her co-workers, and that—whatever
communications difficulties were noted in her 2014 Review—were attributable to the other party
too. (Doc. 84, PageID 2260-61 (collecting record cites)). Oster also points to her nomination for
a leadership class in August 2014 and Wilder’s positive comments regarding her selection to that
class as evidence that her termination was retaliatory and not related to interpersonal conflicts at
work. (Id. at PageID 2262). Finally, Oster notes that nobody from the Bank (other than Osborn)
reported any interpersonal issues to her or suggested she needed to make improvements to save
her job. (Id. at PageID 2264). From this, Oster argues that a reasonable jury could find evidence
of retaliation and not just a termination due to past performance issues.
As for her purported inability to accept Eck as her new manager, Oster notes that Eck
never complained about her until after she lodged her February 12, 2015 complaints against him.
(Id. at PageID 2264). She also notes that neither Heaton nor Wilder believed her allegations
about Eck to be false or unsubstantiated. (Id.). Yet, according to Heaton, the decision to
terminate Oster was made just two weeks after she made her complaints about him to Dahs.
(Id.). From this, Oster argues that a reasonable jury could find evidence of retaliation and not
just a termination due to her inability to accept Eck’s management.
The Bank counters with evidence that Oster had demonstrated interpersonal conflicts
with fellow employees; that she had been disciplined for bullying a paralegal; that her 2014
Review indicated at least some communications conflicts with at least one co-worker; and that,
under Oster’s own version of events, Eck began mistreating her (though not firing her) long
before she first lodged her discrimination complaint against him. From this evidence, the Bank
argues that Oster has not established that her protected activity was a “but for” cause of her
As with the other elements of Oster’s retaliation claim, the Court discerns a genuine
dispute of material fact over the “but for” cause of her termination. On one hand, the Bank cites
evidence indicating that the defendants terminated Oster due to a history of interpersonal
conflicts and her failure to accept Eck as her manager. On the other hand, Oster cites evidence
showing a close proximity in time between the Bank learning of her protected activity and her
termination, as well as independent evidence that suggests the Bank acted in retaliation and that
contradicts or otherwise calls into question the Bank’s stated reasons for her termination. Under
these circumstances, the Court must view the evidence most favorably to Oster and conclude that
her prima facie case of retaliation survives summary judgment. See Moran, 788 F.3d at 204.
3. The Remainder of the McDonnell Douglas Burden-Shifting Analysis
Because Oster has established a prima facie case of gender discrimination and retaliation,
the burden of production shifts to the Bank to set forth “a legitimate, nondiscriminatory reason”
for her termination. Hoskins, 227 F.3d at 731; see also Spengler, 615 F.3d at 492 (same).
Oster concedes that the Bank has set forth legitimate, nondiscriminatory reasons—namely,
“because of her unwillingness to accept Eck as her manager and failure to improve her
interactions with others.”
Accordingly, “the burden shifts back to [her] to demonstrate that [the Bank’s] proffered
reason was not the true reason for the employment decision.” Spengler, 615 F.3d at 492
(quotation omitted). In other words, to defeat summary judgment, Oster must show that a jury
reasonably could find that the Bank’s asserted reasons for terminating her were pretextual.
Id. at 492-93.
Oster may demonstrate that the Bank’s asserted reasons were pretextual by
proving that they: (1) had no basis in fact; (2) did not actually motivate her termination; or
(3) were insufficient to explain her termination. Id. at 493.
At the outset, Oster correctly argues that “suspicious timing is a strong indicator of
pretext when accompanied by some other, independent evidence.” See Seeger v. Cincinnati Bell
Tel. Co., 681 F.3d 274, 285 (6th Cir. 2012) (quotation omitted). Nevertheless, the law in this
Circuit remains clear “that temporal proximity cannot be the sole basis for finding pretext.” Id.
(emphasis added) (quotation omitted). Thus, while the Court recognizes some indication of
pretext from the proximity between Oster’s complaints of discrimination and the Bank’s decision
to terminate her (which occurred roughly two to three weeks apart), the Court must look to the
rest of the record to determine whether a jury reasonably could reject the Bank’s explanations for
i. Whether the Proffered Reasons Lacked any Basis in Fact
Oster first argues that the Bank’s reasons lacked any basis in fact—i.e., that they were
false. She also argues that the Bank’s reasons changed over time, thus undercutting their
See Cicero v. Borg-Warner Auto, Inc., 280 F.3d 579, 592 (6th Cir. 2002)
(“An employer’s changing rationale for making an adverse employment decision can be
evidence of pretext.” (quotation omitted)). She notes Cheap’s explanation during her termination
meeting that the Legal Department was “going in a different direction.” (Doc. 84, PageID 2267).
She then points to Cheap’s 2016 deposition, when he amplified that explanation by stating,
“I don’t remember exactly what I said but essentially I did not want to get into a debate, that my
decision had been made.” (Id. at PageID 2268). She also notes that Wilder testified that
“different direction” meant a “cultural change, a change in the litigation process”—to improve
the process. (Id.). And yet, in its May 23, 2016 response to Oster’s discovery interrogatories,
the Bank claimed that Oster was terminated because of “her unwillingness to accept the recentlyhired Defendant Eck as her supervisor and her failure to improve her interactions with others
after receiving previous discipline and counseling.” (Id. at PageID 2269). To Oster, these
explanations, combined with other cherry-picked gaps in the record, undercut one another and
show that the Bank’s proffered reasons lacked any basis in fact.
The Bank counters that the record contains ample evidence to support its proffered
reasons. For example, Cheap consistently testified that Oster was terminated “[b]ecause [of] the
continuing pattern of being unable to work with Tom Eck, [which] I viewed as a continuation of
her inability to work with members of the legal department and others outside the legal
department.” (Doc. 93, PageID 2701). Likewise, when asked the reason for Oster’s termination,
Wilder testified that Oster had a “history of interpersonal issues” and “she was not getting along
with the new manager,” including “fighting his desire to change the way workload was
structured on the team.” (Id. at PageID 2701-02). The Bank notes that Oster’s own response in
opposition to its motion for summary judgment reflects these conflicts between Oster and Eck.
And, as the Bank points out, Oster’s 2014 Performance Review did note at least some “strained”
relationships with co-workers, and she was disciplined for bullying a co-worker in October 2014.
As for Oster’s allegation of “shifting explanations,” the Bank counters that the phrase
“going in a different direction” does not undercut any of its later, more detailed explanations.
Instead, the Bank argues that Cheap’s initial statements regarding “going in a different direction”
encompass the reasons the defendants consistently have provided for Oster’s termination.
The Bank cites Marshall v. Belmont County Board of Commissioners, 110 F. Supp. 3d 780
(S.D. Ohio 2015), aff’d, 634 F. App’x 574 (6th Cir. 2016), for support. In Marshall, this Court
agreed that the shifting-explanations rule applies only “when an employer’s reason for allegedly
[unlawful] actions changes in a material way throughout the stages of litigation.” Id. at 793
(quotation omitted). The Marshall plaintiff, the county’s 911 center director, was told that the
center was being taken in a “better direction” in her termination meeting. Id. Yet in a later press
release and in litigation, the county provided a more detailed reason—that the plaintiff had been
terminated for disciplining a subordinate, in defiance of county commissioners’ instructions. Id.
The court found no inconsistencies, noting that the phrase “better direction” was a “generic
statement that could be reasonably read to encompass . . . the proffered reason for termination.”
Id.; see also, e.g., Maletich v. La Z-Boy Inc., No. 11-14615, 2013 WL 3328302, at *17
(E.D. Mich. July 2, 2013) (holding that “brief statement” in termination meeting of “moving in a
different direction” was not inconsistent with a later, more detailed reason).
As in Marshall and Maletich, Cheap provided a brief and general statement that
encompasses the Bank’s proffered reasons for Oster’s termination. Thus, a reasonable jury could
not find pretext on the basis of purported shifting explanations. Moreover, Oster has failed to
show that the Bank’s stated reasons for terminating her lack any basis in fact or were false.
The record contains ample evidence that she refused to accept Eck’s management and that she
had some history of strained personal relationships within the Legal Department. Even viewed
in connection with the close proximity between her protected activity and her termination, Oster
has failed to show that a reasonable jury could find pretext under this theory.
ii. Whether the Proffered Reasons Actually Motivated her Termination
Oster next argues that the Bank’s proffered reasons did not actually motivate her
termination. She offers three credible bases to support her argument: (1) Cheap’s decision in
early February 2015 to approve a $30,000 bonus for her 2014 performance 5; (2) her satisfactory
2014 Performance Review; and (3) the lack of complaints from Eck regarding their relationship
until after she began complaining about him in February 2014. In short, Oster argues that it was
Eck’s arrival and her subsequent complaints about his discrimination that truly motivated her
termination—not anything that previously occurred. See Manzer v. Diamond Shamrock Chems.
Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (explaining that, under the second method of showing
pretext, “the plaintiff attempts to indict the credibility of [the] employer’s explanation” by
showing “that the sheer weight of the circumstantial evidence of discrimination makes it
‘more likely than not’ that the employer’s explanation is a pretext, or coverup”), overruled on
other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).
In early February 2015, Cheap recommended Oster for an annual bonus of $30,000 based on her 2014
performance. (Cheap Dep., Doc. 62-1, PageID 1800). The bonus was set to be paid on March 6, 2015.
(Id. at PageID 1849). Nevertheless, Cheap cancelled her bonus in a perfunctory email on February 25,
2015—two weeks after Oster complained about Eck to Human Resources. (Id. at PageID 1861-62).
The Bank counters that Oster’s 2014 bonus award and her 2014 Review spoke strictly of
her “performance” at work, and not the Bank’s stated reasons for her termination.
(Doc. 93, PageID 2704 (“It is true, the record conflicts on Plaintiff’s performance. But that
conflict is immaterial since Defendants have never claimed she was terminated for poor
performance.”)). But the Bank does not cite a single case in support and, in any event, its
argument assumes too much. It stands to reason Cheap might not approve a $30,000 bonus for
Oster in February 2015 if he had her termination in mind due to ongoing interpersonal issues at
the Bank. Likewise, Oster’s 2014 Review expressly considered and assessed more than just her
“performance.” It included several metrics, including Oster’s accountability, communication,
inclusion, teamwork, and a catch-all category for “other.”
(Doc. 85-5, PageID 2388-95).
As noted before, Oster fully met or exceeded expectations on all metrics for calendar year 2014,
thus providing more evidence that her termination may not have been due to ongoing
interpersonal difficulties. Finally, the Bank does not dispute Oster’s assertion that Eck never
complained to anyone about Oster’s acceptance of his management until after she lodged her
own complaints regarding his purported discrimination. (Heaton Dep., Doc. 56-1, PageID 114546 (“Q: And before Jody raised her complaints about Tom Eck, Tom Eck never complained to
you or anyone in human resources that Jody would not accept him as her supervisor; is that true?
A: Not that I’m aware of.”); see also Eck Dep., Doc. 54-1, PageID 887 (similar)). 6
In its reply brief, the Bank suggests that the “honest belief” rule insulates its conduct, although the
Bank’s discussion of the rule occurred in connection with Oster’s prima facie retaliation claim, and not in
connection with her claim of pretext. (Doc. 93, PageID 2698-99). Regardless, this Court agrees that the
“honest belief” rule has no place when a plaintiff argues pretext on the basis of the employer’s proffered
reasons not actually motivating the adverse employment decision, as Oster argues here. Amos v. McNairy
Cnty., 622 F. App’x 529, 541 n.10 (6th Cir. 2015) (explaining that the “honest belief” rule “responds
more logically to the ‘had no basis in fact’ theory of pretext” and “will be redundant in most cases”
alleging pretext on the basis of the employer’s true motivation for the adverse action); Phipps v. Accredo
Health Grp., Inc., No. 2:15-cv-02101, 2016 WL 3448765, at *15 & n.94 (W.D. Tenn. June 20, 2016)
(denying summary judgment to defendant on same basis).
The Court finds that, after drawing all reasonable inferences in Oster’s favor, a
reasonable jury could conclude the Bank’s stated reasons did not actually motivate her
termination given the following: (1) the close proximity between Oster’s complaints and her
termination; (2) substantial evidence showing that her termination seemed unlikely until Eck’s
arrival and her complaints; and (3) the absence of evidence showing that Eck voiced concerns
over her acceptance of his management until she complained about his discrimination.
Accordingly, Oster’s gender discrimination and retaliation claims survive the Bank’s motion for
summary judgment. See Ercegovich, 154 F.3d at 357 (holding that summary judgment was
inappropriate where plaintiff established a prima facie case and produced sufficient evidence
contradicting employer’s proffered legitimate reason to create triable issues of fact for jury).
iii. Whether the Proffered Reasons Were Insufficient to Explain her Termination
Finally, Oster argues that the Bank’s proffered reasons were insufficient to explain her
termination. To avoid summary judgment on this ground, Oster must present “evidence that
other employees, particularly employees not in the protected class, were not fired even though
they engaged in substantially identical conduct to that which the employer contends motivated its
discharge of the plaintiff.” Manzer, 29 F.3d at 1084. Oster argues that she and Eck engaged in
substantially identical conduct, but that only she was fired for it. She points to her alleged
“bullying” of Paralegal Susan Wangler and compares it to Eck’s purported bullying of her.
She then argues that a reasonable jury could conclude that Eck, who participated in the decision
to terminate her, engaged in conduct that was substantially worse than her own conduct, “casting
doubt on the credibility of [the Bank’s] claimed reason for terminating [her],” and demonstrating
that the reason was insufficient to explain her termination. (Doc. 84, PageID 2275).
The Bank responds that Oster was not terminated solely for her bullying of Wangler.
Had that been the case, Oster’s employment would have ended much sooner than March 2015.
Instead, the Bank argues that Oster stands alone in being terminated both for her
“continued difficulties in getting along with others,” (not just Wangler), and “in her rejection of
her manager’s authority.” (Doc. 50, PageID 498). The Bank concludes that, since there are no
allegations, let alone any evidence that the decision-makers were aware of, but failed to
terminate similarly situated employees from outside the protected class who engaged in similar
behavior, this pretext theory must fail. See Jackson, 814 F.3d at 789 (“Where an employer
argues that the plaintiff’s differential discipline was justified by material differences in context,
we evaluate whether that justification is pretextual by looking to the same or similar factors as
when evaluating the ‘similarly situated’ element of the prima facie case.”).
The Court agrees with the Bank. Oster has failed to point to an employee from outside
her protected class who was similarly situated in all relevant respects to show that the Bank’s
proffered reasons were insufficient to explain her termination. See id. at 780 (“When conducting
this more rigorous comparison [to ascertain pretext], we again focus on the severity of the
differently treated employees’ actions.”). Oster has not cited any evidence that Eck had a
comparable history of interpersonal conflicts, or that he rejected management from his
supervisors. Accordingly, Oster has not created a genuine dispute of material fact under her
third and final pretext theory.
Nevertheless, because Oster has made out a prima facie case of gender discrimination and
retaliation, and because she has created a genuine dispute of material fact as whether the Bank’s
proffered reasons actually motivated her termination, the Court DENIES the Bank’s motion for
summary judgment on those claims.
Oster also attempts to shoehorn a hostile work environment claim into her response in
opposition to summary judgment, but she did not plead such a claim in her complaint. Gender
discrimination and hostile work environment constitute separate legal claims, with different
elements. Vicker v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006). Oster knew how to
plead separate causes of action, but she chose not to add a hostile work environment claim.
Nor did she seek leave to amend her complaint. Under these circumstances, the Court cannot
allow a new cause of action to proceed. See Desparois v. Perrysburg Exempted Vill. Sch. Dist.,
455 F. App’x 659, 665 (6th Cir. 2012) (rejecting attempt to add new claim at summary
judgment); Baker v. City of Toledo, No. 3:05-cv-7315, 2007 WL 1101254, at *6 & n.5
(N.D. Ohio Apr. 11, 2007) (finding it “clear” that plaintiff failed to plead a hostile work
environment claim where her complaint alleged only that the defendant “harassed and retaliated
against her because of her gender”). Accordingly, Oster may proceed to trial only on her
properly pleaded gender discrimination and retaliation claims.
As a coda to consideration of Oster’s Title VII claims, the Court GRANTS
Thomas Eck’s and Richard Cheap’s motion for summary judgment on Counts I and III. As Eck
and Cheap note, “Title VII does not allow for liability on the part of any person or entity other
than [an] ‘employer.’”
Han v. Univ. of Dayton, 541 F. App’x 622, 629 (6th Cir. 2013).
And, under 42 U.S.C. § 2000e, an “employer” does not include a plaintiff’s “supervisors,”
“managers,” or “co-workers.”
Id. (quoting Wathen v. Gen. Elec. Co., 115 F.3d 400, 404
(6th Cir. 1997)). Thus, Eck and Cheap are entitled to judgment as a matter of law on Oster’s
Title VII claims. Id.
By contrast, “Ohio Rev. Code § 4112.02 has been interpreted to allow ‘employer’
liability for discrimination attached to [a plaintiff’s] supervisors or managers.”
consistent with the analysis outlined above, the Court DENIES the individual defendants’
motion for summary judgment on Count II (gender discrimination under Ohio law) and Count IV
(retaliation under Ohio law). Id.
4. Aiding and Abetting Claim (Count V)
Finally, in Count V, Oster alleges that individual defendants Eck and Cheap violated
Ohio Revised Code § 4112.02(J) by aiding, abetting, inciting, compelling, and/or coercing
unlawful gender discrimination and retaliation against her. To be held liable for aiding and
abetting under this provision, an individual defendant must be “involved in or actually [have]
made the decision to [discriminate or] retaliate against [the employee].” Cummings v. Greater
Cleveland Reg’l Transit Auth., 88 F. Supp. 3d 812, 820 (N.D. Ohio 2015); Sampson v. Sisters of
Mercy Willard, Ohio, No. 3:12-cv-824, 2015 WL 3953053, at *9-10 (N.D. Ohio June 29, 2015)
Oster argues that Eck and Cheap aided and abetted one another, as well as the Bank, in
discriminating and retaliating against her in the following ways: (1) Cheap “rigged” the stay
interviews in 2014 to specifically target Oster; (2) Cheap gave Eck a license to harass,
intimidate, and discriminate against Oster without fear of reprisal when he told Eck that he was
Oster’s “last shot” a week after Eck began work; and (3) Eck and Cheap both knew about the
“explosive” February 12, 2015 meeting between Eck and Oster, as well as Oster’s complaints
about Eck’s discrimination, when they met to discuss her termination on February 25, 2015.
The Bank does not seriously contest Oster’s allegations or the evidence she cites in
support. Instead, the Bank raises two arguments, both of which lack merit. First, the Bank
contends that, beyond “unfounded conspiracy theories,” Oster “has no new evidence to support
her aiding and abetting claims beyond that which fails to adequately support her discrimination
and retaliation claims.” (Doc. 93, PageID 2709). As explained above, however, Oster can
survive summary judgment on her gender discrimination and retaliation claims, so her
allegations and evidence of aiding and abetting by Eck and Cheap pass muster too.
Second, the Bank argues that “for purposes of R.C. 4112.02(J), defendants who are all
associated with the same corporate entity, as Defendants are here, cannot aid and abet
themselves.” (Id. at PageID 2709-10 (citing Sampson, 2015 WL 3953053, at *9-10)). To be
sure, Sampson held that a corporate entity cannot aid and abet itself in employment
discrimination. Sampson, 2015 WL 3953053, at *10 (“[Defendant] Mercy Willard cannot aid or
abet itself in discriminating against [Plaintiff].”). But here, Oster has not alleged that the Bank
aided or abetted itself in discriminating and retaliating against her. Rather, she alleged that Eck
and Cheap aided and abetted one another, as well as the Bank, in its unlawful employment
practices. As such, the Bank’s argument under Sampson lacks merit.
Because Oster cited sufficient evidence for the proposition that Eck and Cheap were
“involved in” or “actually made the decision to [discriminate and] retaliate against [her],”
see Cummings, 88 F. Supp. 3d at 820, the Court DENIES the individual defendants’ motion for
summary judgment on her aiding and abetting claim (Count V).
C. Oster’s Motion for Summary Judgment
Huntington raised an after-acquired evidence defense by alleging that it would have fired
Oster anyway given misconduct on her behalf that the Bank later discovered. That misconduct
includes the following: (1) a January 20, 2016 Judgment Entry in which Oster was found in
contempt for violating an order of the domestic relations court; (2) Oster’s surreptitious audio
recording of two discussions that occurred at or near her termination; (3) Oster’s retention and
emailing to her personal email address of what the Bank claims were “confidential and/or
privileged” documents following her termination; and (4) Oster’s application for a modification
of her personal mortgage loan with the bank without being forthright as to her marital status.
Oster has moved for summary judgment on this defense.
The after-acquired evidence defense sounds in equity and limits a plaintiff’s damages for
misconduct which, if known by the employer, would have resulted in the plaintiff’s termination
anyway. See, e.g., McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 361-62 (1995);
Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1168 (6th Cir. 1996) (“This doctrine applies
to bar an employee from obtaining certain remedies in a discrimination case.”). If a jury finds
the employer liable but the employer proves that after-acquired evidence would have resulted in
the plaintiff’s termination, then the plaintiff’s damages are cut off as of the date the employer
learned of the misconduct. McKennon, 513 U.S. at 361-62 (“We do conclude that here, and as a
general rule in cases of this type, neither reinstatement nor front pay is an appropriate remedy.”);
Thurman, 90 F.3d at 1168 (“As a general rule, under the after-acquired evidence doctrine the
employee is barred from obtaining front pay and reinstatement, and backpay is limited.”
When an employer relies on after-acquired evidence of wrongdoing, “it must establish
first, that the wrongdoing in fact occurred, and second, that the wrongdoing was of such severity
that the employee would in fact have been terminated.” Wehr v. Ryan’s Family Steak Houses,
Inc., 49 F.3d 1150, 1154 n.5 (6th Cir. 1995) (emphasis added) (quotation omitted). Thus, the
proper inquiry is whether the wrongdoing was of such severity that the employee in fact would
have been terminated on those grounds alone if the employer had known of it at the time of
discharge, not just that the employer could have terminated the employee. See McKennon,
513 U.S. at 362-63; Wehr, 49 F.3d at 1154 n.5.
Although some jurisdictions limit the after-acquired evidence defense to pre-termination
misconduct, the Sixth Circuit has suggested that consideration of post-termination misconduct is
permissible as well, at least under appropriate circumstances. See Jones v. Nissan N. Am., Inc.,
438 F. App’x 388, 406 (6th Cir. 2011). And lower courts within this Circuit, including the
Southern District of Ohio, have interpreted Jones to allow consideration of post-termination
misconduct under appropriate circumstances. See, e.g., James v. Kaiser Aluminum Fabricated
Prods., LLC, No. 2:11-cv-847, 2013 WL 1787382, at *2 (S.D. Ohio Apr. 25, 2013) (“The court
finds here that evidence of the fact of James’s post-termination jail time is plainly relevant to the
issue of damages.” (citing Jones, 438 F. App’x at 405-07)); Nemeth v. Citizens Fin. Grp.,
No. 08-cv-15326, 2012 WL 3262876, at *5 (E.D. Mich. Aug. 9, 2012) (“Although the Court is
inclined to conclude that a fair reading of Jones v. Nissan North America, Inc. . . . would permit
the after-acquired evidence defense to be asserted based on post-termination conduct under
appropriate circumstances, . . . the Court will defer ruling on this issue pending further discovery
related to this defense.” (citations omitted)).
Here, the Bank argues that, even if it is found liable on Oster’s underlying claims, its
damages must be limited under the after-acquired evidence defense. In short, the Bank argues
that it would have terminated Oster for violating Huntington’s Code of Business Conduct and
Ethics and its Use of Communications Media Policy anyway had it known of her misconduct.
Oster moves for summary judgment on several grounds. First, she argues that the Court
should not consider evidence of her post-termination misconduct, including her contempt of the
domestic relations court; her surreptitious audio recordings, which occurred on or after the date
of her termination; or her retention of supposedly privileged and/or confidential Bank materials.
The Court agrees that this is not an unusual case in which her post-termination misconduct
should be considered in connection with the Bank’s defense.
Unlike in Jones, where the
misconduct occurred while the employee was on FMLA leave, but still employed, Oster was
terminated outright on March 4, 2015. See Jones, 438 F. App’x at 407. And unlike in James,
Oster was not in prison following her employment, and thus, reinstatement remains a viable
remedy should she prevail at trial. See James, 2013 WL 1787382, at *2. Although some
jurisdictions allow consideration of post-termination misconduct in all after-acquired evidence
defenses, the Sixth Circuit has not gone so far, see Jones, 438 F. App’x at 407, so neither will
this Court. Imagine the perverse incentives created if employers were rewarded for rummaging
around an ex-employee’s life following his or her termination, all in the name of creating some
post-hoc rationale for that very termination. It stands to reason that losing one’s job may create
unexpected and unordinary hardships in a person’s life—hardships that, in any event, easily
could be spun to justify the underlying termination. The Court cannot sanction such an approach
in an ordinary situation like this. Accordingly, the Court will not allow the Bank to present
evidence of Oster’s misconduct following her termination on March 4, 2015.
Second, Oster argues that none of her pre-termination misconduct violated Bank policies,
as the Bank contends. As the briefing makes clear, however, genuine disputes of material fact
remain for a jury to decide with respect to this aspect of the Bank’s after-acquired evidence
For example, the parties present conflicting evidence as to whether Huntington
employee Sean Roehrenbeck, who assisted Oster with her 2014 mortgage modification, knew of
her marital status, or had reason to believe that she lied when she wrote “divorce pending” on her
application. (Compare Doc. 58, PageID 1376, with Doc. 82, PageID 2191). Likewise, the
parties present conflicting evidence as to whether Oster’s transmission of privileged and/or
confidential bank documents amounted to protected activity or a violation of Bank policies.
(Compare Doc. 58, PageID 1368-76, with Doc. 82, PageID 2192-96). And the parties cite
conflicting evidence as to whether it was “common practice” to forward confidential documents
to personal email addresses and as to whether Oster in fact received permission from
management to do so. (Compare Doc. 58, PageID 1374-75, with Doc. 82, PageID 2196-98).
Drawing all reasonable inferences in the Bank’s favor, the Court cannot grant summary
judgment to Oster on this basis.
Finally, Oster argues that none of the alleged pre-termination misconduct would in fact
have led to her termination. The parties vehemently disagree (and present conflicting evidence)
as to whether the Bank would in fact have terminated Oster for some, or all, of these
transgressions, or whether the Bank merely could have terminated her for them. Oster attempts
to isolate each instance of misconduct and then argues that, on an individual basis, not one
infraction actually violated Bank policy or would have led to her termination, because no
attorney had been fired for any of these infractions in the past.
The Bank counters that Oster interprets its policies to her own liking and artificially
isolates her course of misconduct. The Bank argues that much of her conduct, even viewed
individually, did violate corporate policies and, that, in any event, when viewed cumulatively,
Oster’s misconduct surely would have led to her termination had the Bank only known of it
sooner. Relatedly, the Bank contends that it is irrelevant that it has not had to fire an attorney for
any singular infraction before, because “any attorney who engaged in the breadth of misconduct
committed by [Oster] would be terminated from Huntington.” (Doc. 82, PageID 2199). Indeed,
Huntington’s General Counsel attests that he would have terminated Oster for that very
misconduct (id.), and, as already noted, a party can survive summary judgment based on his or
her testimony alone. See Moran, 78 F.3d at 205.
Drawing all reasonable inferences in the Bank’s favor, the Court concludes that genuine
disputes of material fact remain for trial. Conflicting evidence exists as to whether Oster’s
actions violated the Bank’s policies and whether the Bank would in fact have terminated her
employment over that alleged misconduct.
Accordingly, the Court GRANTS in part and
DENIES in part Oster’s motion for summary judgment.
For these reasons, the Court: (1) GRANTS in part and DENIES in Part Oster’s motion
to strike (Doc. 81); (2) GRANTS in part and DENIES in part the Bank’s motion for summary
judgment (Doc. 50); and (3) GRANTS in part and DENIES in part Oster’s motion for
summary judgment (Doc. 58). Oster may go to trial on her gender discrimination, retaliation,
and aiding and abetting claims (as circumscribed above with respect to Eck and Cheap), while
the Bank may assert its after-acquired evidence defense as to Oster’s alleged pre-termination
IT IS SO ORDERED.
/s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: May 19, 2017
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