The opinion of the court was delivered by: District Judge Susan J. Dlott
ORDER DENYING AS MOOT MOTION TO DISMISS AND GRANTING MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant's Motion to Dismiss Plaintiff's ERISA Claim and Breach of Ohio Public Policy Claim Pursuant to Rule 12(b)(6) ("Motion to Dismiss") (doc. 6) and Defendant's Motion for Summary Judgment (doc. 17). Plaintiff Thomas F. Permann brings this action against his former employer, Defendant CF Industries, Inc. ("CFI"), alleging age discrimination in violation of federal and state statutory law and Ohio public policy, and alleging ERISA discrimination. CFI has filed a Partial Answer as to the statutory federal and state age discrimination claims, has moved to dismiss the Ohio public policy claim and the ERISA claim, and has moved for summary judgment as to all claims. For the reasons that follow, the Motion to Dismiss is DENIED AS MOOT and the Motion for Summary Judgment is GRANTED.
The statement of facts is derived from CFI's Proposed Undisputed Facts (doc. 17 ex. H), the Perrmann's Response thereto (doc. 28), and the evidentiary materials cited therein. CFI is a national fertilizer manufacturer. CFI operates a dry fertilizer warehouse in Cincinnati, Ohio. CFI employs two management level employees at most warehouses, a superintendent with overall responsibility for the location, and the supervisor under the superintendent. CFI also employs at each warehouse hourly employees called operators who are responsible for operating equipment and loading trucks and railcars with fertilizer.
Permann, who was born on December 12, 1954, began working as an operator for CFI at the Cincinnati warehouse part-time in 1975 and then full-time in 1977. CFI promoted Perrmann to the position of supervisor at the warehouse in March 1990. Perrmann remained a supervisor at that warehouse until his termination in September 2004. William Ritter (year of birth ("YOB") 1951) was the superintendent of the warehouse during the fourteen years that Perrmann was the supervisor.
On August 24, 2004, CFI held a cross-training meeting at the Cincinnati warehouse. Alan Kerns (YOB 1951), a regional manager, and Peter Dutchak (YOB 1955), Scott Dohmen (YOB 1964), and Robert Kipping (YOB 1958), superintendents for other terminals and warehouses, visited the Cincinnati warehouse for the meeting. Dutchak, Dohmen and Kipping met that evening for dinner. At dinner they discussed comments Perrmann and Kerns had made that day that they found to be vulgar and inappropriate. Dutchak, Domen and Kipping determined that they should report Perrmann's conduct to senior management. The following day, Dohmen reported the conduct to Brian Spencer, the general manager of CFI's distribution facilities, rather than to Dutchak's and Domen's supervisor, Kerns.
Spencer consulted with Ruth Rydzynski, the human resources advisor, and Lynda Streich, the director of professional development after talking to Dohmen. They agreed that Spencer would investigate the incidents reported by Dohmen by interviewing the people present during the events and report back to Rydzynski and Streich. Spencer then interviewed Dohmen, Kipping, and Dutchak. Based on his interviews, Spencer believed the following events occurred:
* Perrmann responded to Kipping's inquiry at the start of the day about how his wife was doing day by stating, to paraphrase, "She's getting so fucking fat, all she does is sit at home on her fat ass, and I don't even call her a wife anymore."
* Dohmen heard Perrmann tell Kipping that Perrmann's wife was a "big fat bitch or hog or something . . . but it was just way out of line." Dohmen did not recall Perrmann's exact words.
* Kipping and Dohmen were shocked at Perrmann's words.
* Perrmann also spoke in a derogatory fashion about a regional manager who had been fired. Dohmen paraphrased Perrmann as having said "The dumb cocksucker comes down here and talks to me about my vulgarity; and yet look at that stupid cocksucker, he's the one that got fired." Kipping paraphrased Perrmann as having said "The stupid cocksucker came down here to Cincinnati to tell me to watch my mouth, and now two weeks later he's fired and I'm fucking still working. Who is the smart one out of the bunch?"
* Around lunchtime, Kerns asked Kipping, Perrmann, and Dohmen if they were going to take Lisa McQueen, a clerk in the warehouse and Perrmann's subordinate, to lunch with them. The men were standing in McQueen's area of work when the question was asked. Dohmen paraphrased Perrmann's response as having been "Are you fucking kidding me? We can't feed that fucking pig. She'd break our fucking checkbook." Kipping paraphrased Perrmann's response as having been "We're not taking that fucking hog to lunch. The last time I took her out to lunch, she broke my billfold. She eats too fucking much, and we cannot afford to pay for her." Kipping stated that McQueen looked shocked, but then "kind of smiled and seemed to me like she shook it off." Dohmen stated that McQueen quietly responded something to the effect that she could not help being a "big girl" and turned back to her computer.
Perrmann refutes these allegations. He denies making the above-paraphrased comments about his wife, the regional manager, and Lisa McQueen.
In regards to McQueen, Perrmann does admit to making a joke about McQueen and the way she eats. He admitted to saying about McQueen:
And I make the joke, I said, oh, I says, I don't know if you want to offer to bring back Lisa anything for lunch. I said, Lisa can eat. I said, you know, and I'm -- I was always joking. I said, I don't know if you have enough money in your wallet to pay for her lunch.
I said, when we go out to eat, when me and Lisa have gone out to eat, I said, you might -- I said, it might take two paychecks. I may have said at the end, I think I recall that I said, might take two paychecks to pay for her fucking lunch. (Perrmann Dep. at 29-30.) Perrmann also points out that Spencer did not attempt to interview McQueen as part of his investigation. McQueen stated in her affidavit that she recalls Perrmann making a joke, but did not recall whether he used profanity. She stated further that she was not offended by what Perrmann had said.
Finally, although Kipping and Dohmen reported that they were stunned or shocked by Perrmann's comments, Dohmen also admitted that there was a little laughter in response to Perrmann's comments about McQueen and Kipping stated that he "laughed, [he] was shocked."
Also, Spencer and Rydzynski interviewed Kerns about the August 24, 2004 incidents. Rydzynski testified that Kerns stated that he heard Perrmann make the "cocksucker" comment about the regional manager. This fact is disputed, however, because Kerns ...