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Rainer v. Refco

January 30, 2007


The opinion of the court was delivered by: Magistrate Judge Kemp


Plaintiff, Lisa Rainer, filed this employment discrimination action against Refco, Incorporated, her former employer. She also named two individuals, William Sekeras and Robert Maloy, as defendants. Her original complaint pleaded federal and state employment discrimination and retaliation claims against Refco and alleged that the two individual defendants were liable along with Refco on her state law claims. Her amended complaint added two claims against Refco under the Family Medical Leave Act.

After discovery was completed, all defendants moved for summary judgment. Responsive and reply memoranda have been filed. Additionally, Ms. Rainer filed a motion to strike the reply memorandum, or, in the alternative, to file a sur-reply, arguing that Refco raised issues for the first time in its reply memorandum which were not addressed in its original motion for summary judgment. For the following reasons, both the motion for summary judgment and the motion to strike will be denied.


Summary judgment is not a substitute for a trial when facts material to the Court's ultimate resolution of the case are in dispute. It may be rendered only when appropriate evidentiary materials, as described in Fed. R. Civ. P. 56(c), demonstrate the absence of a material factual dispute and the moving party is entitled to judgment as a matter of law.

Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464 (1962). The moving party bears the burden of demonstrating that no material facts are in dispute, and the evidence submitted must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Additionally, the Court must draw all reasonable inferences from that evidence in favor of the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654 (1962).

The nonmoving party does have the burden, however, after completion of sufficient discovery, to submit evidence in support of any material element of a claim or defense on which that party would bear the burden of proof at trial, even if the moving party has not submitted evidence to negate the existence of that material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Of course, since "a party seeking summary judgment ... bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact," Celotex, 477 U.S. at 323, the responding party is only required to respond to those issues clearly identified by the moving party as being subject to the motion. It is with these standards in mind that the instant motion must be decided.


The parties have the supplied the Court a plethora of deposition transcripts, affidavits, and other documents as attachments to the memoranda filed. Under the above legal standard, the question before the Court is whether the evidence in those various documents which favors Ms. Rainer's position on her various legal claims is sufficient to create a triable issue of fact with respect to each of those claims. If the evidence is in conflict, and a jury could believe either the evidence favoring Ms. Rainer's claims or favoring Refco's position, there is a triable issue of fact and summary judgment may not be granted. The following is a summary of the pertinent evidence.

Until February 17, 2005, Ms. Rainer worked for Refco, first as a human resources administrator and later as a plant manager at Refco's Wellston, Ohio plant. She testified that she was hired by a gentleman named Tony Lambert. Although her work as a plant manager originally went well, problems developed during calendar year 2004. According to Ms. Rainer, those problems consisted primarily of insubordination and harassment from people she supervised at the plant, including particularly Robert Washburn. According to Refco, the problems consisted primarily of Ms. Rainer's favoritism towards two individuals that she had hired coupled with morale and production issues at the plant.

For some period of time, Refco had employed defendant Maloy to consult with Kevin Lucas, Refco's sole shareholder, about capital improvements and other capital expenditures at the Wellston plant. Mr. Maloy testified in his deposition that in 2004 he began to notice other issues at the plant based upon complaints which plant employees directed to him. As a result, Mr. Lucas asked Mr. Maloy to conduct an investigation to determine what was happening at the plant.

According to Refco, one of the major issues at the plant was an unprecedented buildup in the amount of scrap material which was being discarded. Such a buildup could indicate that poor quality control was being practiced at the plant and that money was being wasted because items were not being manufactured properly. Refco also experienced some cash flow problems in 2004. There is a dispute concerning whether these cash flow problems resulted from the buildup of scrap or from a significant cash outlay which Refco made in order to perform one particular contract.

Mr. Maloy conducted some type of investigation at the Refco plant in the latter part of 2004. The "investigation" included talking to workers who had complaints about Ms. Rainer's management style and other issues at the plant, but did not include any discussions with her. According to Mr. Maloy, by December, 2004, he had decided that Ms. Rainer's employment should be terminated, and he recommended that action to Mr. Lucas.

Mr. Sekeras was Ms. Rainer's immediate supervisor. The parties apparently agree that he and Ms. Rainer had a good relationship until February 4, 2005. On that date, Mr. Sekeras changed Ms. Rainer's job assignment from plant manager to manager of administration. He reassigned her production supervision duties to another Refco employee, Rob Timms. He apparently took that action without consulting with Mr. Lucas and without the endorsement of Mr. Maloy. In an e-mail to Mr. Lucas written a week later, Mr. Maloy again recommended that Ms. Rainer's employment be terminated along with ...

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