The opinion of the court was delivered by: Judge Michael R. Barrett
This matter is before the Court upon Defendant's Motion for Summary Judgment (Doc. 14). Plaintiff has filed a Response in Opposition (Doc. 19) and Defendants have filed a Reply (Doc. 21). This matter is now ripe for review.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 4, 2005 Plaintiff Dale M. Shiffman filed a complaint against Defendant Thermal Industries, Inc. alleging age discrimination in violation of the Age Discrimination in Employment Act (ADEA) (Count I), O.R.C. §4112.02 and 4112.99 (Count II)*fn1 , and Ohio Public Policy (Count III). Mr. Shiffman was an employee of Thermal Industries, Inc., a manufacturer and seller of windows, patio enclosures and decking materials (Shiffman Affidavit, ¶4).
Plaintiff was hired by Defendant on or about April 1, 2001 as a sales representative (Shiffman Affidavit, ¶2). Plaintiff was 47 years old at the time he was hired (Shiffman Affidavit, ¶3). Defendant hired Plaintiff expressly to stop the declining sales and to increase sales (Plaintiff Depo. at 7). Plaintiff was also told to maintain the business that remained with Defendant and to add new customers (Id. at 49). Over the course of Plaintiff's employment with Defendant, sales continued to decline and Plaintiff failed to open any new major accounts (Id. at 7-9, 23, 25, 36-37, 61-63). When Plaintiff was first hired he was responsible for the following territories: Dayton, Louisville, Lexington, Indianapolis and Cincinnati. In 2003, Defendant reassigned the Indianapolis territory to another salesmen within the company to help Plaintiff focus on his Ohio and Kentucky territories. Plaintiff was thrilled with this reassignment (Id. at 18-19). Despite having one less territory to cover, Plaintiff still failed to increase sales.
Plaintiff asserts that he was unable to increase sales due to the lack of training he received and the market conditions (Shiffman Affidavit, ¶26-27). Despite not increasing sales, Plaintiff received a slight raise to his base salary each year, 3.4% in December 2001, 3.1% in April 2002, and 4.3% in April 2003 (Shiffman Affidavit, ¶6). Plaintiff also asserts in his affidavit that he was at 119% of his sales goals for the period immediately preceding his termination (Shiffman Affidavit, ¶8). However, in his deposition, Plaintiff admits that the 119% figure is inaccurate (Plaintiff Depo. at 195-196). Defendant asserts that the 119% is flawed due to the removal of the Indianapolis territory from the Cincinnati branch (Milt Law Depo. at 77-78) and that in reality Plaintiff was significantly below his sales goals (Id. at 81-83). At the 2003 National Sales Meeting, held in Pittsburgh, PA, Plaintiff finished second out of approximately 40 sales representatives in two out of three categories, the Dreamwood Promotion and new dealer applications (Plaintiff Depo. at 15, Shiffman Affidavit, ¶13).
In 2004 Defendant changed its compensation plan to provide for a lower base salary for sales representatives, a lower bonus for already established customers and a higher bonus for new customers (Id. at ¶ 14, 15). This new compensation plan was established to encourage its sales representatives to obtain new customers (Id. at ¶ 15). Plaintiff was not happy about this new compensation plan (Id. at ¶ 16). Plaintiff felt that this new compensation plan would benefit younger sales representatives and harm older sales representatives. He felt that it made it difficult for an older employee with family responsibilities to live on the lower base salary (Id. at ¶ 16-19).
In addition to his failure to increase sales, Defendant also claims that Plaintiff had a poor attitude and that months prior to Plaintiff's termination Defendant informed Plaintiff that his negative attitude and constant complaining was not productive (Plaintiff Depo. at 145, 147). This is not disputed and Plaintiff concedes that his negative attitude could have adversely affected his sales (Id. at 179-180).*fn2
On or about August 2, 2004 Plaintiff was terminated (Shiffman Affidavit, ¶2) for not increasing sales, for not stopping the decreasing sales, and for consistently failing to meet his sales goals (Law Depo. at 47). Plaintiff acknowledged that not increasing sales and not meeting sales goals are legitimate reasons for a sales representative's termination (Plaintiff Depo. at 229). Plaintiff was replaced by Sean Knollman who is under 40 years old (Shiffman Affidavit, ¶20).
A. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the burden of showing an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met its burden of production, the non-moving party cannot rest on his pleadings, but must present significant probative evidence in support of his complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The mere existence of a scintilla of evidence to support the non-moving party's position will be insufficient; the evidence must be sufficient for a jury to reasonably find in favor of the non-moving party. Id. at 252.
Defendant argues at page 7 of its Motion for Summary Judgment (Doc. 14) that Plaintiff is barred from bringing this action as Plaintiff had previously sought to recover back pay and unpaid bonuses in small claims court in Butler County, Ohio. Defendant asserts that Plaintiff's small claims court case arises out of the same transaction or occurrence as that which is the subject of this matter. The Court disagrees. The state court action was filed to recover monies owed to Plaintiff for work performed prior to his termination. ...