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Bowditch v. Mettler Toledo International, Inc.

Court of Appeals of Ohio, Tenth District

September 26, 2013

James G. Bowditch, Plaintiff-Appellant,
Mettler Toledo International, Inc. et al., Defendants-Appellees.

APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 09CV-6735

Law Offices of Russell A. Kelm, and Russell A. Kelm, for appellant.

Ice Miller LLP, James E. Davidson and Eve M. Ellinger, for appellees.



(¶ 1} Plaintiff-appellant, James G. Bowditch, appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment to defendants-appellees, Mettler Toledo International, Inc. ("Mettler Toledo") and Frederick E. Brong, on appellant's age discrimination claim under R.C. Chapter 4112. Because the trial court erred in concluding the evidence presents no genuine issue of material fact, we reverse.

I. History

(¶ 2} Appellant first worked for Mettler Toledo from 1978 until 1982. In May 1984, Mettler Toledo rehired appellant to work at the company's Worthington, Ohio location. On September 8, 2003, appellant accepted a position as a supplier manager at Mettler Toledo's Masstron facility, where he worked until his termination from employment on February 10, 2009. At the time of his termination, appellant was 50 years old.

(¶ 3} Appellees terminated appellant's employment following a January 29, 2009 incident in which Frederick Brong, human resources and special projects leader for Mettler Toledo at Masstron, noticed two employees at Masstron reading an e-mail on the production floor computer. Brong reviewed the contents of the e-mail, found it contained nonwork material, and noted that appellant sent the e-mail to the production floor computer from his company e-mail address. Brong inspected the production floor computer and discovered additional nonwork e-mails sent to the production floor computer, some of which contained sexually explicit material. Attached to one such e-mail was a file entitled "Blonde Cowgirl" that contained multiple sexually explicit photographs of a woman; Brong determined appellant originally sent the e-mail to the company e-mail address of Randy Dillon, another employee at Masstron, who forwarded it to the production floor computer.

(¶ 4} At the time of the incident, Mettler Toledo's employee handbook governed appellant's performance. The handbook provided that Mettler Toledo reserved the right to terminate employment at any time and that any employee found to have violated company rules was subject to discharge. Pursuant to the handbook's policy on computer and e-mail systems usage ("policy"), Mettler Toledo prohibited the use of computers and e-mail in the workplace "in ways that are disruptive, offensive to others, or harmful to morale." (R. 79, exhibit No. 5, at 30.) The policy specifically prohibited "the display or transmission of sexually explicit images, messages, and cartoons, " and stated "[o]ther such misuse includes, but is not limited to, ethnic slurs, racial comments, off-color jokes, or anything that may be construed as harassment or showing disrespect for others." (R. 79, exhibit No. 5, at 30.)

(¶ 5} The handbook provided that violations of the policy, including "[p]articipating in the viewing or exchange of pornography or obscene materials" and "[s]ending or posting messages or material that could damage the organization's image or reputation, " subjected employees to "disciplinary action, up to and including termination of employment." (R. 79, exhibit No. 5, at 30-31.) On April 15, 2005, appellant signed a form acknowledging his receipt of the handbook and affirming that either he or Mettler Toledo could terminate his employment at any time and for any reason. On May 4, 2007, after participating in harassment awareness training, appellant signed a form indicating he received, read, and understood the policy. Appellant further agreed to abide by the policy, including being subject to corrective action for failing to abide by the policy.

(¶ 6} On February 2, 2010, appellant met with Brong and Terry Every, appellant's supervisor. At the meeting, appellant admitted to sending the e-mail containing the "Blonde Cowgirl" attachment from his Mettler Toledo e-mail account during business hours to other employees and nonemployees. Brong suspended appellant and Dillon indefinitely while he reviewed their computers for additional evidence. Brong discovered appellant's internet history had been deleted from his computer, appellant and Dillon stored sexually explicit and nonbusiness related material on their computers, and appellant and Dillon forwarded such material from their company e-mail addresses to family, friends, co-workers, and Mettler Toledo suppliers.

(¶ 7} Following his review of the employees' computers, Brong discussed his findings with T. Alton Hill, general manager for the Masstron facility, and Jeff Adams, human resources supervisor for Mettler Toledo North America, and he recommended that Mettler Toledo terminate both appellant and Dillon for violations of the policy. Both Hill and Adams agreed with Brong's recommendation. Brong notified appellant of his termination by a signed letter indicating appellant's discharge resulted from the "violation of several Company policies, including but not limited to, Computer and E-mail Systems Usage, Internet System Usage" because appellant's computer contained "data which was sexually explicit, and racially and ethnically offensive." (R. 79, Brong Affidavit, at ¶ 15 and exhibit No. 4.)

(¶ 8} Appellant ultimately filed a complaint, pursuant to a motion to amend, listing Mettler Toledo, Inc. and Frederick Brong as appellees and alleging age discrimination in violation of R.C. Chapter 4112. Following their answer, appellees filed a motion for summary judgment on July 1, 2010, asserting no genuine issues of material fact remained for trial because appellant could not establish a prima facie case and could not prove the legitimate, nondiscriminatory reason appellees supplied was pretextual. Appellees further filed, on September 10, 2010, three motions to strike the affidavits of appellant, Grant Davis, and Douglas W. Wigglesworth from the record. On August 6, 2012, the trial court filed an entry denying the motions to strike affidavits from the record, granting appellees' motion for summary judgment, and entering judgment in favor of appellees.

II. Assignments of Error

(¶ 9} Appellant appeals, assigning two errors:


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