The opinion of the court was delivered by: James L. Graham United States District Judge
This is an employment discrimination action filed by plaintiff Joy Chapin against her former employer, Nationwide Mutual Insurance Co. ("Nationwide"). In Count One of her amended complaint, plaintiff alleged that Nationwide discriminated against her on the basis of her age in regard to the terms and conditions of her employment, and unlawfully terminated her employment in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §621 et seq. In Count Two, plaintiff alleged that Nationwide retaliated against her in violation of the ADEA, 29 U.S.C. §623(d) for engaging in activity protected under the ADEA. In Count Three, plaintiff alleged that Nationwide's actions violated the discrimination and retaliation provisions of Ohio Rev. Code §4112.02 and the public policy of Ohio against age discrimination and retaliation. Count Four, a claim for breach of contract, was dismissed with prejudice by stipulation of the parties on October 3, 2006.
This matter is before the court on Nationwide's motion for summary judgment. The procedure for granting summary judgment is found in Fed. R. Civ. P. 56(c), which provides:
The judgment sought shall be rendered forthwith 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 judgment as a matter of law.
The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Summary judgment will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).
The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex and Matsushita effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J. C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identified a number of important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479. In addition, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must 'present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "'show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586). Moreover, "[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.
Plaintiff's date of birth is January 25, 1950. At the time of the events in this case, she was fifty-three to fifty-four years old. Plaintiff commenced her employment with Nationwide on November 22, 1999, at the age of forty-nine. Plaintiff's position was that of senior recruiter. Her starting salary was $55,000, and in 2001, she received a merit raise of $5,000. Recruiting and Staffing is a separate unit within Nationwide's Human Resources Department. The duties of the senior recruiter position included recruiting activities, interviewing and evaluating applicants, and presenting candidates for employment to the various hiring managers serviced by the recruiter. The positions under senior recruiter included that of recruiter and recruiting coordinator. The recruiting coordinators occupied a support position. Their duties included computer entry work, typing offer letters, sending disposition letters, making sure drug and background checks were completed, and copying resumes and letters for the hiring packages given to hiring managers in the various departments serviced by the recruiters.
From November 1999 to February 2003, plaintiff provided recruiting services to defendant's Property and Casualty Information Technology ("IT") Systems. During a portion of this time period, she reported to Rocky Parker, the director of Recruiting and Staffing. In February of 2003, plaintiff was reassigned to provide recruiting services to the IT staff within Nationwide Financial Services ("NFS"). Christopher Anderson, the new director of NFS Recruiting and Staffing, became plaintiff's supervisor. Anderson in turn reported to Human Resources Officer of Recruiting and Staffing Brent McMenemy.
In August or September of 2003, Anderson asked plaintiff to provide recruiting and staffing services to Nationwide Retirement Solutions ("NRS"), a division of NFS. This request was prompted by the fact that the person occupying that position, Cyndi Williams, was accepting a temporary assignment as an executive on loan to the United Way. Plaintiff was approached about the position because she was already assigned to NFS, and IT recruitment was down. Plaintiff agreed to accept the position. At the time, it was unknown whether plaintiff's assignment to that position would be temporary or permanent, since it was not established whether Williams would return to that position. When Williams obtained another position within the Human Resources Department on her return, plaintiff's assignment to NRS became permanent. For a brief period, plaintiff performed recruiting services for her former IT position and for NRS, but was later assigned solely to NRS. Recruiting Coordinator Mike Giasi was assigned to assist plaintiff. Plaintiff's new office was located in Nationwide's Parkwood office. This office was also occupied by the NFS Human Resources Department, a separate unit headed by then Director Cynthia Henricksen. Anderson's office was located in a Nationwide office in downtown Columbus, Ohio.
As a recruiter for NRS, plaintiff's "customers" or the persons she served were the hiring managers within NRS, job applicants, and the NFS Human Resources Department. Since they shared the same customer base, NFS Recruiting and Staffing maintained a strong working relationship with the NFS Human Resources Department. If an issue regarding a recruiter's performance was the subject of a complaint to the NFS Human Resources Department, Henrickson would bring it to the attention of the recruiter or NFS Recruiting and Staffing management. However, Henrickson had no supervisory authority over the recruiters. Due to the close working relationship between the NFS recruiting staff and the NFS Human Resources Department, inquiries regarding personnel issues relating to employees in those units were usually directed to the Corporate Human Resources Department rather than to Henrickson.
Prior to her acceptance of the NRS assignment, plaintiff's job performance and performance evaluations were satisfactory. Soon after plaintiff assumed her new duties, complaints were made by NRS managers to Henrickson regarding plaintiff's performance, and Henrickson forwarded these complaints to Anderson. The complaints concerned plaintiff's lack of service to her customers, such as delays in responding to e-mails, returning phone calls or providing follow-up, and the appearance of inaccuracies in the information in offer letters regarding the names of successful candidates, the position's start date and geographical location, and the terms of compensation for the position. For example, in an e-mail dated October 10, 2003, Hiring Manager Margaret Osborne complained about the lack of service she received in regard to her open positions, noting that it took over a week to extend an offer to one candidate, and that no follow-up had been received concerning that position. In response to this e-mail, plaintiff agreed that the level of service was not up to the standard she would like to provide. Anderson spoke with plaintiff about these complaints, and plaintiff admitted that errors had occurred.
When errors in plaintiff's performance continued, Anderson included his concerns in a written performance coaching document, the first step in Nationwide's disciplinary process. He met with plaintiff on November 26, 2003, and gave her a copy of the document. This document indicates that the topics of discussion during the coaching included relevant customer relationships and the expectations for a senior recruiter. Plaintiff was urged to communicate her schedule to the Parkwood office, to focus on her customer base, and to be more consistent and timely in her responses to customers. Anderson contacted plaintiff in mid-December of 2003 to further discuss concerns with her performance such as delays in the return of phone calls and e-mails, lack of follow through, and basic recruiting mistakes. Plaintiff maintained that the errors were due in part to the fact that the form letters she was accustomed to using in her previous assignments were not used by the hiring managers at NRS, and that each manager required a different letter. Plaintiff spent time in November and December determining what the managers required for their letters, and created new forms. She also attributed some of the errors to Mike Giasi.
In February of 2004, Anderson met with plaintiff, Giasi, and Giasi's supervisor, Staci Gardner. Anderson held this meeting following feedback from plaintiff and Giasi, which included concerns about the NRS processes and lack of teamwork. Anderson viewed the meeting as a positive one, and believed plaintiff left the meeting with a clear understanding of the processes and her role. However, mistakes continued to occur.
On March 1, 2004, Anderson and Linda Hatfield, who was also a director in NFS Recruiting and Staffing, met with plaintiff to discuss her performance evaluation for the calendar year 2003, which spanned a period before and after plaintiff's assignment to NRS. Plaintiff received a rating of "achieves criteria" on all of the objectives in the evaluation, the other ratings in the evaluation system being "does not meet criteria" and "exceeds criteria." However, it was noted in the evaluation that there were areas of concern with plaintiff's "time to fill" statistics; that, although plaintiff received some positive feedback from customers, her service to customers had been inconsistent; that out of every ten actions, plaintiff performed well on six or seven, but her performance dropped substantially on the remaining three or four items; that plaintiff needed to act more accountably and accept responsibility in communicating with associates and taking charge of the recruitment process within NRS; and that plaintiff needed to see the customer perspective in certain situations.
In the first quarter of 2004, plaintiff continued to have performance problems. Henrickson and Anderson received numerous complaints about inaccuracies in offer letters being sent by plaintiff. For example, on March 2, 2004, Henrickson forwarded to Anderson an e-mail which she had received from Compensation Manager Susan Irwin. In this e-mail, Irwin complained about the many errors in the hiring letters being sent out by plaintiff, including major errors concerning the amount of compensation. Irwin noted one such letter in which plaintiff incorrectly informed a new hire that he would receive a ninety-day new hire bonus, when in fact he was not eligible for a bonus, and that his annual targeted incentive was $11,000, when in fact it was $7,100.
Anderson also received a complaint from Brian McCleave, a vice president of business development. McCleave had e-mailed plaintiff asking her to disposition five applicants from a group of applicants he was still considering, but due to plaintiff's failure to respond, he had to resubmit his request twice. On March 2, 2004, Staci Gardner expressed her concerns to Anderson about plaintiff's lack of response to a candidate seeking a job at NFS who asked plaintiff for the hiring manager's name for open positions. Plaintiff eventually responded by stating that she would present the associate's resume but that she was swamped with work and that it was time consuming to give him the managers' names. Anderson received other complaints and feedback from hiring managers, applicants, Henrickson, and members of Henrickson's staff.
Anderson consulted with McMenemy and Susan Chieffo, a specialist with the Corporate Human Resources Department. Anderson decided to place plaintiff on a thirty-day performance improvement plan, that being the next step in the Nationwide disciplinary program. Chieffo assisted in drafting the plan. On March 11, 2004, Anderson and McMenemy met with plaintiff to present the plan and to discuss the performance objectives described in the plan. Those objectives focused on: (1) plaintiff's performance deficiencies, such as her lack of promptness in getting back to customers, mistakes in offer letters, and lack of professionalism in communicating with customers; (2) plaintiff's need to become more customer focused and treat managers and associates as her customers; and (3) plaintiff's need to accept responsibility for her mistakes and problems rather than trying to shift the blame to others. The performance expectations specified in the plan included: returning phone calls within twenty-four hours; making offers within twenty-four hours of receiving that information from the hiring managers; attaining one hundred percent accuracy in offer letters; using a professional and respectful tone in communicating with customers; not claiming to be too busy to assist someone; and taking responsibility for actions. During the meeting, plaintiff acknowledged that there were issues with her performance. However, Anderson was troubled by the fact that plaintiff attempted to avoid accepting responsibility for those errors by blaming others and making excuses.
The performance improvement plan was scheduled to run from March 11, 2004, to April 15, 2004. Although plaintiff continued to have performance problems during this period, Anderson removed plaintiff from performance improvement status on April 22, 2004, and checked the box on the form which stated that plaintiff "successfully completed" the performance improvement plan. Anderson indicated that he reached this decision because plaintiff had shown some improvement during the work improvement period.
Anderson also knew that a second thirty-day plan or an extension of the plan would render plaintiff subject to termination if she failed to meet the plan objectives, and he was hopeful that plaintiff could correct her performance deficiencies and avoid further discipline. The plan language advised plaintiff that she would be expected to maintain a satisfactory level of performance after the work improvement plan ended, and that the failure to satisfy the requirements of the plan and maintain satisfactory performance after completion of the plan could result in the termination of her employment.
After the termination of plaintiff's performance improvement plan, Anderson received additional information from Henrickson and her staff, hiring managers, and other Recruiting and Staffing personnel concerning plaintiff's performance. On April 28, 2004, Anderson learned that plaintiff had sent what Anderson considered to be an unprofessional e-mail to Dan Goodall, a senior business analyst with NRS, concerning her difficulties in posting a position on POST, the electronic job database. In this e-mail, plaintiff stated that problems with the POST system would be "a direct hit at me and my performance" and noted that Goodall had not had "the opportunity to gain the experience of being a recruiter to understand the urgency of some of our requests." Anderson Aff., Ex. A-9.
In late April or early May of 2004, McMenemy reviewed the results of a survey completed as part of an ongoing customer feedback process by hiring managers who worked with plaintiff in meeting their recruiting and staffing needs. He was concerned with plaintiff's scores on this survey. Forty-three percent of managers surveyed indicated that they were not satisfied with the overall level of customer service provided by plaintiff, and twenty-nine percent were neutral, a total of seventy-two percent. Twenty-nine percent disagreed with the statement that plaintiff was a valued partner in the recruiting process, and twenty-nine percent were neutral, a total of fifty-eight percent. Forty-three percent of the managers surveyed disagreed that plaintiff did a good job of helping put the right people into the right positions within their areas, and twenty-nine percent were neutral, a total of seventy-two percent. Twenty-nine percent of the managers indicated that they were not satisfied with the average amount of time it takes to fill positions, and forty-three percent stated that they were neutral. Fifty percent of the managers answered that they disagreed with the statement that their experience with plaintiff captured the Nationwide brand tenants of being genuine, reliable and energetic, and thirty-three percent gave a neutral response. Anderson and McMenemy were concerned about the impact that plaintiff's performance could be having on the relationship between Recruiting and Staffing and its customers.
Anderson concluded that plaintiff was not performing at a satisfactory level, and that her performance was deteriorating. He consulted with Chieffo about offering plaintiff two options: (1) placing plaintiff on a second performance improvement program, which plaintiff would have to complete successfully in order to avoid termination; or (2) giving plaintiff thirty days to search for other employment inside or outside Nationwide, with the understanding that if she did not find other employment within Nationwide within the thirty-day period, her employment would be terminated.
On May 26, 2004, Anderson and Hatfield met with plaintiff to offer her these options. On May 27, 2004, plaintiff e-mailed Anderson to ask about what kinds of expectations would be involved if she opted for the performance improvement program. Anderson sent plaintiff a copy of the proposed plan, which repeated the concerns and expectations listed in the first plan, noted the unacceptable scores on the hiring manager's survey and continuing customer complaints concerning the recruiting relationship with NRS, and stated, "There can be no further complaints from our customers."
On May 27, 2004, Henrickson forwarded to Anderson additional examples of plaintiff's poor performance. Gari Aber, a hiring manager, complained on that date about plaintiff's delay in forwarding the information from interviews which were completed two weeks earlier and plaintiff's failure to return her phone calls. On May 26, 2004, Louie Watson, a regional vice president, complained about a position which had been open for the past eight weeks, with no applicants being referred by plaintiff. Watson requested that someone other than plaintiff be assigned to help fill the position. Henrickson also relayed the complaint of Susan Irwin, one of the NFS Human Resources staff members, that plaintiff had been asking her to review each offer letter, and that as a result Irwin was having trouble completing her own tasks. Henrickson indicated that it was her belief that the recruiter should be the expert on these letters and should not need this level of oversight.
On June 1, 2004, plaintiff informed Anderson and McMenemy that she had elected to take thirty days to find another job. At that point, plaintiff was not required to perform any of the duties of her recruiter job, and was allowed paid leave to search for other employment during that period, which ran from June 1, 2004, through June 30, 2004. Plaintiff did not secure a position with Nationwide during that period, resulting in the termination of her employment. Plaintiff was not due to vest in Nationwide's retirement program until October 22, 2004. However, she subsequently reached an agreement with Nationwide which allowed her to go on unpaid leave until she vested and to receive her retirement benefits.
At some point after the end of her first performance improvement plan, plaintiff talked to Barbara Scott in the Corporate Human Resources Department and complained about age being a factor in promotion in Recruiting and Staffing. On June 29, 2004, plaintiff also complained to LeRoy Johnston, Nationwide general counsel, about age discrimination and retaliation. At some point after June 1, 2004, Anderson was advised by Annie Howard and Don Adams, other recruiters in plaintiff's area, that plaintiff had approached them about filing an age discrimination complaint against Nationwide. Howard and Adams indicated that they disagreed with plaintiff's ...