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Phillips v. Tradesmen International

September 29, 2006

RICHARD L. PHILLIPS, PLAINTIFF
v.
TRADESMEN INTERNATIONAL, INC., DEFENDANT.



The opinion of the court was delivered by: District Judge Susan J. Dlott

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on Defendant's Motion for Summary Judgment. (Doc. 14.) Plaintiff Richard L. Phillips filed a complaint asserting that his former employer, Defendant Tradesmen International, Inc. ("Tradesmen"), is liable to him for discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the "ADEA") and Ohio Revised Code §§ 4112.14 and 4112.99,*fn1 and for wrongful discharge in violation of Ohio public policy. (Doc. 1.) Tradesmen moved for summary judgment as to all of Phillips' claims. (Doc. 14.) For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Defendant's motion. The Court grants the motion as it relates to Phillips' Ohio public policy claim but denies the motion as it relates to Phillips' statutory age discrimination claims.

I. BACKGROUND

Plaintiff Phillips worked for Defendant Tradesmen for just over one year. Tradesmen hired Phillips as a Project Coordinator for the Cincinnati office on August 1, 2003 and terminated him the following year on November 1, 2004.*fn2 (Doc. 14 at 1; doc 17 at 1.) At the time of his termination, Phillips was 42. He contends that Tradesmen terminated him as part of a sweeping effort to replace older employees with a younger workforce. Defendant responds that it decided to terminate Phillips based on repeated complaints about Phillips' performance, not because of his age.

Tradesmen is a construction labor company that hires skilled laborers such as electricians, plumbers, and carpenters and then leases the services of these workers on a short-term basis to contractors engaged in the construction business. The company operates facilities across the United States, including in the Southern District of Ohio, where it has field offices in Columbus, Dayton, and Cincinnati. Each Southern Ohio field office is staffed with a Manager, a Project Coordinator (previously called "Recruiters"), an Administrative Assistant, and a crew of Sales Representatives. (Marko Aff. ¶ 4, June 29, 2006.)

The local Manager at each field office oversees routine business operations and directly supervises the remaining office staff. (Murray Dep. 6, Feb. 23, 2006.) The Administrative Assistant handles the majority of the administrative tasks within the office, including receptionist duties, processing payroll, and maintaining files on personnel and clients. (Phillips Dep. Ex. 7 ¶ 11.6, Feb. 7, 2006.) Sales responsibilities fall primarily on the Sales Representatives.*fn3 Each representative markets the company's services within his or her assigned geographic territory, soliciting construction contractors to register as clients. (Seeberg Dep. 6, April 20, 2006.) The Sales Representatives also act as liaisons between the clients and the company, securing work orders and placing laborers at client job sites. (Id.)

Finally, the Project Coordinator is in charge of recruiting, interviewing, evaluating, and hiring the skilled laborers who make up Tradesmen's work force. In this role, the Project Coordinator interacts regularly with the Administrative Assistant and the Sales Representatives. For example, the interview process that the Project Coordinator administers for each applicant involves a significant amount of paperwork. Each time the Project Coordinator hires a new laborer, he must forward all of the paperwork generated during the interview to the Administrative Assistant, who then processes the paperwork for payroll and billing purposes. (Wettschurack Dep. Ex. 5, Feb. 22, 2006; Waggoner Dep. 95-101, Feb. 22, 2006; Zimmerman Dep. 46, April 27, 2006.)

The Project Coordinator also works closely with the Sales Representatives during daily operations meetings in order to fill client work orders. However, the parties dispute the precise responsibility that each employee has for placing laborers with Tradesmen's clients. According to Tradesmen, the Sales Representatives inform the Project Coordinator of the skill requirements identified by the clients and rely entirely on the Project Coordinator's evaluative skills and discretion to determine which laborers would best serve the needs of each client. (Murray Dep. 9, 28-29; Waggoner Dep. 82-83, 90-94; Seeberg Dep. 68-69.) In contrast, Phillips, who worked as a Project Coordinator in the Cincinnati office, alleges that while he provided candidates for the representatives to select from, the representatives often independently reviewed the candidates' qualifications to determine which candidate would be a good fit for a particular client. Phillips also alleges that while he discussed the skills and qualifications of each candidate with the Sales Representatives, the representatives had the final call on which laborers they would assign to each job site. (Waggoner Dep. 95-96; Phillips Aff. ¶ 3, Aug. 10, 2006.)

During Phillips' employment with Tradesmen, the chain of command at the company was as follows: Joseph Wesley served as the company's President and CEO. Next in line was the Regional Vice President, George Brophy. Answering to Brophy and overseeing the operations of the Southern Ohio field offices was the District General Manager. Jeff Moore held this position during most of the year that Phillips worked for the company. However, on September 27, 2004, Brophy terminated Moore. Shortly thereafter, on October 1, 2004, Wesley promoted Kevin Wettschurack, who had served in a sales manager capacity for the company's Indianapolis district, to the District General Manager position for the Southern Ohio region. (Doc. 14-1 at ¶ 9; doc. 17-2 at ¶ 9.)

Accordingly, Jeff Moore served as Phillip's supervisor until Tradesmen terminated him on September 27, 2004. Plaintiff Phillips claims that prior to Moore's termination, both Brophy and Wesley expressed intentions to reshape the company by replacing older employees with younger employees. (Doc. 17 at 3; doc. 17-2 at 6; Moore Dep. 61, 65, 68, April 21, 2006; Moore Aff. ¶¶ 3, 4, 6, 7; Phillips Dep. 110, 231-32, 240, Feb. 7, 2006.) Phillips relies mainly on Moore's deposition testimony and affidavit to support this allegation. For example, Moore testified that Brophy made comments to him such as "We need to look at our most successful offices and the youth and exuberation. There's a different feel to the offices. They're younger." (Moore Dep. 68.) Moore attributed similar comments to President and CEO Wesley, claiming that during a General Managers' meeting Wesley stated that "employees over 40 didn't fit in" and that the managers needed to look at the company's "most successful offices . . . where there were young, energetic employees." (Moore Aff. ¶ 7.) Moore further testified that Brophy directed Moore to fire Phillips along with several other employees because of their ages and the need to "clear out the old wood." (Id. ¶¶ 4, 6.)*fn4 Ultimately, according to Plaintiff, Brophy terminated Moore in September 2004 because he refused to comply with Brophy's plans to terminate older employees.*fn5 (Doc. 17 at 5-6; Phillips Dep. 262.) Phillips' termination followed shortly thereafter.

The parties agree that Wettschurack, who assumed Moore's General Manager position in October 2004, is the individual who officially terminated Phillips, though they dispute the role that Brophy played in Phillips' termination. According to Defendant, Wettschurack made the decision independently after meeting Phillips and speaking with his co-workers. (Wettschurack Dep. 35, 64; Brophy Dep. 71, Feb. 23, 2006.) Specifically, Defendant Tradesmen claims that several employees expressed dissatisfaction with Phillips. For example, Cincinnati Sales Representatives Austin Waggoner and Jeff Keller complained that Phillips was rude, abrasive, and unprofessional. (Wettschurack Dep. 57-59; Waggoner Dep. 69-70.) They additionally expressed concern that Phillips did not adequately screen the laborers who he hired and both threatened to quit if the situation with Phillips was not resolved. (Waggoner Dep. 54-60; Wettschurack Dep. 97-100.)

The Dayton Project Coordinator, Beth Zimmer, also complained to Wettschurack about Phillips, stating that she did not like the way Phillips conducted business and did not feel comfortable with the people Phillips hired. (Wettschurack Dep. 59.) In fact, Zimmer testified that Phillips so negatively affected the morale of the Cincinnati office that she avoided going there unless ordered to so. (Zimmer Aff. ¶ 6, June 27, 2006.) When Brophy asked Zimmer what changes the company could institute to improve the Cincinnati office, she replied that "if Kevin Wettschurack wanted things to improve, he should get rid of Phillips because he was unbearable." (Zimmer Aff. ¶ 7.)

Cincinnati Administrative Assistant Marcia Zimmerman also reported problems with Phillips, citing primarily his use of vulgarity in the workplace, his submission of untimely and incomplete paperwork for the laborers he hired, and his overall demeanor. (Zimmerman Dep. 50-56, April 27, 2006.) Like Zimmer, Zimmerman advised Brophy that in order to "straighten out the Cincinnati office" he would need to "fire Rick Phillips." (Zimmerman Dep. 98.)

Aside from the general complaints about Phillips' performance, Wettschurack also learned of two occasions upon which Phillips failure to supply competent laborers to various jobsites injured the company's client relations. Scott Seeberg, a Dayton Sales Representative, reported the first incident. According to Seeberg, one client became so dissatisfied with the pool of laborers coming from the Cincinnati office that it requested to work with laborers from the Dayton office and avoid the Cincinnati office. (Seeberg Dep. 31-32, 37-41.) With regard to the second incident, Waggoner reported that another client became so dissatisfied with the carpenters who Phillips dispatched to its jobsites that it ceased doing business with Tradesmen. (Waggoner Dep. 54-60, Feb. 22, 2006.)

Finally, Defendant claims that several laborers or "field employees" also lodged complaints that Phillips promised them raises and other perks which they never received. (Wettschurack Dep. 69-70.)

Defendant Tradesmen further contends that upon meeting Phillips, Wettschurack witnessed his abrasive and confrontational manner first hand. (Id. at 36-37.) According to Tradesmen, during Wettschurack's first day in Cincinnati, he observed Phillips barking orders at the Sales Representatives and immediately asked Brophy to identify him as he did not know Phillips by sight. (Id. at 36-37, 64.) Over the next few weeks, Wettschurack sat in on approximately 5 or 6 operations meetings and described Phillips behavior at these meetings as loud, confrontational, and intimidating. (Wettschurack Dep. 99.)

Wettschurack described these observations to Brophy when they met in mid-October 2004 to discuss Wettschurack's 2004 business plan. At that meeting, Wettschurack informed Brophy that he planned to fire Phillips and that he was considering a former Cincinnati Sales Representative, Chris Murray, as Philip's replacement. (Wettschurack Dep. 30-31, 36-37.) Murray had resigned earlier that year, at the time citing his dislike of Moore as one of the reasons he was leaving. He told another employee Dave Handerson, to call him when Moore was gone. (Murray Dep. 11, 74, 88.) Henderson and Keller eventually recommended Murray to Wettschurack. (Wettschurack Dep. 40.) At the time that Murray took over Phillips' position he was in his late 20s. (Doc. 1 at ¶ 11.)

Phillips paints a very different picture of the events leading to his termination. First, Phillips claims that Wettschurack had so little contact with him prior to his termination that Wettschurack could not had adequately evaluated his performance, and that it was actually Brophy rather than Wettschurack who made the decision to terminate him. In fact, Phillips argues that Brophy ordered Wettschurack to terminate Phillips in early October before Wettschurack had ever met Phillips. In support of this allegation, Phillips points specifically to a document titled "Kevin Wettschurak, Game Plan 10-20/12-31," which Phillips alleges Brophy drafted based on notes from a meeting that occurred on or about October 3-4, 2004. (Brophy Dep. 35, Feb. 23, 2006.)*fn6 As one of the goals identified for the Cincinnati Office, the document states "Replace PC [Project Coordinator] with solid person who can grow into OPJ Manager." (Brophy Dep. Ex. 2 at 1.)

Second, Phillips' denies Tradesmen's allegations that his performance and employee relations skills were lacking. Responding to these allegations, Phillips claims that mere weeks before his termination President and CEO Wesley told him that he was doing a good job. (Phillips Dep. 118.) To further refute Defendant's allegations, Phillips points to Moore's testimony that Phillips "did an excellent job in recruiting, finding employees," and filling orders.

(Moore Dep. 22, 28.) Moore also noted that Phillips took extra workplace safety training and required similar training of his employees in an effort to combat rising workers' compensation costs at the company. (Id. at 24.) The only criticism that Moore voiced was that from time to time Phillips made mistakes or ...


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