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Oster v. Huntington Bancshares Inc.

United States District Court, S.D. Ohio, Eastern Division

May 19, 2017

JODY M. OSTER, Plaintiff,

          Kemp Magistrate Judge.

          OPINION & ORDER


         In this employment-discrimination case, Jody Oster, a long-standing in-house attorney with Huntington Bancshares Inc. (“Huntington” or “the Bank”), alleges that she was terminated due to gender discrimination and retaliation for complaining about her then-supervisor, Thomas Eck. Oster filed suit in August, 2015, alleging the following causes of action:

(1) Gender discrimination, in violation of Title VII and Ohio law (Counts I and II);
(2) Retaliation, in violation of Title VII and Ohio law (Counts III and IV); and
(3) Aiding and abetting a discriminatory act, in violation of Ohio law (Count V).[1]

         The Bank has moved for summary judgment on all of Oster's claims. (Doc. 50). The Bank also raised an after-acquired evidence defense which, if proven, would limit its damages (if any) on Oster's underlying claims. (Doc. 30).

         Oster filed a motion to strike several affidavits and other evidence that Huntington filed in connection with its motion for summary judgment (Doc. 81), and also moved for summary judgment on the Bank's after-acquired evidence defense. (Doc. 58).

         As explained below, Oster has shown that at least some of Huntington's proffered evidence is inadmissible and, therefore, should be disregarded in ruling on the Bank's motion for summary judgment. Likewise, Oster has presented sufficient evidence to withstand summary judgment on all of her claims. The Bank, moreover, has presented sufficient evidence to withstand summary judgment on its after-acquired evidence defense, at least insofar as Oster's pre-termination misconduct is concerned. For these reasons, the Court: (1) GRANTS in part and DENIES in part Oster's motion to strike; (2) GRANTS in part and DENIES in part the Bank's motion for summary judgment; and (3) GRANTS in part and DENIES in part Oster's motion for summary judgment on the Bank's after-acquired evidence defense.

         I. BACKGROUND

         A. Factual Background

         Jody Oster served as in-house counsel for Huntington for over twenty-one years. She eventually led the Special Assets Division (“SAD”), a department responsible for commercial loan workouts and litigation relating to defaulted or troubled commercial loans. In that capacity, she represented the Bank and its affiliates in hundreds of actions in state and federal court. For most of her tenure (November 1993 through January 2013), Oster reported to the same individual-John Liebersbach. During that stretch, Oster enjoyed mostly positive relationships with her supervisors and co-workers, including Huntington's General Counsel, Richard Cheap. That said, the Bank contends that she began exhibiting strained interpersonal relationships with several colleagues as early as 2012. When Liebersbach retired in 2013, Oster assumed most of his duties, including management and reporting of all significant and complex litigation, management of the audit letter process, and the selection, engagement, and management of outside counsel on a bank-wide basis.

         1. Deteriorating Personal Relationships

         If the Bank's version of events is believed, then Oster began exhibiting troubling signs in 2012. The Bank contends that she did not get along with SAD's leader, Fred Manning; that another attorney, Rachel Mulchaey, left the Bank in March 2012 due, in part, to interpersonal issues with Oster; that Cheap and Associate General Counsel Larry Case noticed strained relationships between Oster and other attorneys, including Larissa Osborn, Becky Spainhoward, and Annette Houck, which ultimately resulted in Spainhoward resigning, partly due to Oster's “toxic” nature; and that Cheap and Case noticed other strained working relationships with colleagues and clients. The Bank also contends that Cheap requested the Human Resources Department to conduct “stay interviews” of Legal Department employees to better understand team dynamics and other concerns. During those interviews, several co-workers volunteered various issues with Oster's behavior, including the fact that she picked on a paralegal, was not a team player, seemed retaliatory, and was dishonest at times to cover for herself.

         As both parties agree, Oster received generally favorable evaluations of her legal work and performance until mid-2014. That's when matters took a turn for the worst, no matter whose version of events is believed.

         The Bank alleges that, in August 2014, Oster improperly bullied paralegal Susan Wangler in front of their colleagues for receiving permission to attend a Pelatonia event on a day in which Oster needed assistance. This incident ended in a written warning to Oster for not confronting Wangler or her supervisor, Annette Houck (who had approved the time off), in private; Oster levying a cross-allegation of bullying from the paralegal; and the paralegal soon transferring out of the Legal Department due to Oster's alleged mistreatment.

         The Bank also alleges that, in 2014, Cheap considered terminating Oster as part of a Reduction-in-Force (“RIF”). But Cheap backed off from the idea because the Bank could not replace Oster if her job were eliminated as part of the RIF. Nevertheless, by late 2014, Cheap continued to hold “serious concerns” about Oster's employment moving forward.

         2. Huntington Hires a New Supervisor for Oster

         Matters continued to deteriorate in late 2014, when Huntington hired Thomas Eck as Associate General Counsel. Due to Eck's experience with litigation, Cheap decided that, in addition to taking over the duties for the attorney he was replacing, Eck would also manage Oster and oversee her work as the Bank's primary litigator. Cheap felt Eck could provide a “fresh set of eyes” to manage Oster and to assess litigation management more generally.

         Eck and Oster began sparring immediately. Oster alleges Eck began targeting her because of her gender from his first days at the Bank. During one early interaction, Eck allegedly told Oster that a picture of her on Huntington's intranet directory was “wow” and “beautiful, ” and he purportedly continued on and on about it while making Oster uncomfortable. She contends that Cheap assisted Eck in his discrimination by telling him that he was Oster's “last chance, ” and that if Eck's “management of her did not result in improved interpersonal relationships with her co-workers, Oster's employment would be terminated.” The Bank alleges that Eck simply was doing his job-gathering information on how the Legal Department functioned, meeting with other attorneys and personnel, and shifting work assignments accordingly. One of those shifts occurred in early 2015, when Eck transferred some SAD matters from Oster to another attorney, Larissa Osborn, both due to logistical concerns and to free-up Oster to become more involved in consumer collections.

         3. Oster Alleges that Eck's Discrimination Continued in Early 2015

         Oster alleges that her relationship with Eck continued to deteriorate throughout January and February 2015, as he increasingly micromanaged her work and chastised her for apparent deficiencies. Of note, nearly all of these allegations come from an affidavit that Oster submitted with her response in opposition to the Bank's motion for summary judgment (see Doc. 84-5); they do not stem from her deposition testimony or other evidence previously adduced. The first flare-up occurred on January 14, 2015, when Eck allegedly scolded Oster for failing timely to respond to a request to use outside counsel. Those requests fell in Oster's lane but, when she tried to explain, Eck allegedly interrupted and said, “I don't care what happened, don't let it happen again.” After further attempts to explain what had occurred, Eck again purportedly scolded Oster and told her, “You will do as you are told!”

         Another incident allegedly occurred on January 20, 2015, when Eck told Oster to include him in decision-making regarding the use of outside counsel. Oster apparently made those decisions on her own prior to Eck's arrival, and when she protested about the delay in running such routine choices by her new supervisor, he allegedly responded, “I don't care, you will do as you are told!”

         On January 28, 2015, Eck allegedly told Oster she could no longer communicate with outside counsel, witnesses, or other colleagues-including the Bank's General Counsel, Larry Cheap-without first obtaining Eck's permission. Oster claims she felt humiliated considering her prior experience and autonomy within the Legal Department, but she maintains that she “attempted to comply with Defendant Eck's demands.”

         Then, on January 30, 2015, Oster, her previous manager, Larry Case, and Eck met for her 2014 Performance Review. Oster received an overall score of “3” out of “5, ” or “fully meets” expectations, for 2014.[2] Nevertheless, her performance review also stated that her “relationships with a few in the department are still strained and in need of further work (by both sides).”

         On February 10, 2015, several Legal Department staff members, including Oster and Eck, attended a staff meeting. At the end of the meeting, another attorney asked Oster whether she had an update on the “Datacert Project, ” which was not on the agenda. Oster maintains that, because of Eck's earlier instructions not to communicate with others without his prior approval, she simply responded that she did not have an update to provide at that time. Oster contends that Cheap and Eck were scheduled to meet later in the month to discuss the status of the project and whether to abandon it or stay with it.

         The next day, Oster and Eck learned that outside counsel they had previously selected for a FINRA matter were unavailable due to a previously undisclosed conflict. Oster and Eck scrambled to find replacement counsel. Although Cheap was involved in the discussion, Oster alleges he deferred to her regarding her choice to use local counsel rather than counsel from Washington, D.C., or New York City, as Eck had recommended. According to Oster, Eck then came into her office, shut the door, and began yelling at her for not speaking with him before talking to Cheap. Oster alleges that Cheap had contacted her directly, so she had no choice but to respond. But Eck purportedly continued to yell at her for her apparent insubordination.

         Oster alleges that, because Eck's behavior on February 11 had occurred repeatedly, with no end in sight, “she contacted Human Resources [Representative] Stephanie Wilder, who was assigned to the Legal Department.” Oster learned from Wilder's manager, Amy Heaton, that Wilder was out of the office until the following week. Heaton suggested that another HR representative, Emily Dahs, was available if Oster needed to speak to someone right away. Oster replied that it was “not urgent, ” and that she could wait until Wilder returned the following week. As both parties agree, however, things began to unravel the following day.

         4. Matters Come to a Head on February 12, 2015

On February 12, 2015, Eck met with Oster to express concerns that she had lied during the staff meeting when she told a colleague there was no update on the Datacert Project. Eck believed there was a significant update-namely, that Huntington was considering abandoning the project. As such, Eck told Oster that her response was not truthful, and he instructed her to correct it publicly. Oster alleges that Eck was hostile and forceful throughout the meeting; that his tone was intimidating; that he was seething and on the verge of yelling at her; and that, at one point, he rose from his chair, gritted his teeth, and slammed his fist on the desk while berating her for allegedly lying to her colleague. Oster alleges that she was shocked and considered Eck's behavior physically threatening and intimidating.

         At the same meeting, Eck instructed Oster to include him on a call with Department of Justice attorneys regarding a subpoena issued to Huntington. Oster alleges that she previously expressed concern to Eck regarding the participation of another, new attorney on the call; she apparently told him that his presence might signal to the DOJ that Huntington's concerns regarding the investigation were heightened at a time when it appeared the matter might be coming to an end. But Eck insisted on being on the call or, at the very least, sitting in from his own office while on mute. Oster alleges that she told Eck the latter approach would be unethical. But, according to Oster, Eck would not take “no” for an answer. Instead, he instructed her to follow directions, and he only backed down after a male attorney similarly recommended that Eck not be on the call. Oster alleges that, by now, she had grown uncomfortable and warned Eck as follows: “I'm uncomfortable. You have been harassing me and attempting to intimidate me from the start. If I was a man, you would not be treating me this way.”

         5. Oster Complains to Human Resources

         Following their “explosive” meeting from February 12, 2015, Oster and Eck went their separate ways. Oster tried to call the Bank's General Counsel, but she could not reach him. Instead, she began to write down a series of detailed notes regarding what had transpired. Similarly, Eck emailed Oster to reiterate his instructions about the DOJ call and to be included in witness interviews for a different matter. Later that day, Oster contacted Emily Dahs from Human Resources, who was filling in for Stephanie Wilder for the week. The two women met that afternoon to discuss Oster's concerns.

         Oster did not provide Dahs with a copy of her notes; instead, she complained that Eck was “micromanaging” her and wanted to be included in phone calls and meetings for her litigated matters, including the DOJ subpoena. She also told Dahs that Eck's voice was raised, that he told her to “do as you are told, ” and that he was aggressive. Oster testified that she told Dahs that if she were a man, Eck would not be doing this to her. Dahs, who felt Oster was upset and distressed, said she would tell Heaton and Wilder (the other HR representatives) what had transpired and that one of them would follow up with her. Oster expressed concern over meeting one-on-one with Eck in the future, so she requested that someone from HR attend any such meetings moving forward.

         Dahs then informed her manager, Amy Heaton, of Oster's account of the meeting with Eck. Heaton called Eck to learn his side of the story. Eck denied that he raised his voice but admitted that his tone expressed his frustration at what he believed to be Oster's insubordination. Heaton concluded that the relationship between Eck and Oster needed repair, so she instructed Wilder to attend and facilitate their one-on-one meetings, as Oster had requested. Wilder then met with Dahs to review the information Oster had initially shared. A week later, Wilder met with Oster to discuss her initial conversation with Dahs. Wilder told Oster that she would attend future meetings with Eck. Oster testified that she told Wilder she would not be treated this way if she was a man. The two apparently discussed next steps for both Oster and Eck.

         On February 18, 2015, Oster, Eck, and Wilder met. By then, Wilder understood Oster's concerns to be Eck's management style and his expectations regarding his involvement in her matters. Wilder decided to use the meeting to facilitate the relationship and to clarify Eck's expectations. Unfortunately, the meeting was unproductive due to a time-sensitive legal issue. Nevertheless, at the end of the meeting, Wilder made Eck aware that Oster sought clarification of his expectations regarding her work. Oster alleges that Eck denied instructing her to include him in every call and meeting, telling her she needed his permission before going forward without him, or instructing her that she could only speak to Cheap with Eck's prior approval.

         6. Continued Fallout from the February 12, 2015 Meeting

         Because the first meeting between Eck, Oster, and Wilder was cut short, Eck sent an email to Oster detailing his expectations, including litigation management changes he planned to make. He expressed concern as to how Oster might perceive these changes given their recent issues. Oster believes that Eck was concerned she might view his actions as retaliatory given her reporting of his conduct to Human Resources.

         On February 21, 2015, Oster felt slighted when she received a call from outside counsel in the FINRA matter to discuss hourly rates. Ordinarily, she would have discussed the rates with the attorney, but under Eck's new policies, she could not. Oster reports feeling “humiliated” at the end of the call. Oster told Eck about the call, but she alleges that he became upset with her for talking with outside counsel without including him. Oster further alleges that Eck would not accept her explanations for speaking with outside counsel and did not care that Oster had a longstanding working relationship with the attorney. According to Oster's affidavit, Eck then yelled: “I'M NOT FUCKING LARRY CASE!” Following this discussion, Oster alleges that her concerns about Eck increased; she was concerned that she would not be able to satisfy his demands and get her work done, she felt that if she were a man, he would not be treating her this way, and she believed that Eck treated her as if she were subservient to him.

         As a result, Oster emailed Wilder to complain about Eck's involvement in her work and his proposed litigation management changes. In planning for their next one-on-one meeting, Wilder asked Oster to share the “most critical” item to begin the meeting with Eck. Oster responded as follows: “Right now, I'm most concerned about how what Tom [Eck] is doing and how he is going about doing them. It seems he is changing things to change them and the changes will make more work for me or make it difficult for me to do my job.”

         Oster also responded to Eck's email, in which he outlined his expectations and upcoming departmental changes. Oster not only expressed disagreement with many of Eck's expectations, but she also took the opportunity to advise Eck of her expectations for him-at times instructing Eck to respond to certain emails and demanding that he include her in various meetings. Oster also mocked Eck's suggestion that he valued her input, complaining that his actions were “undermining and disrespectful” and that he was “working behind the scenes against [her].”

         Around the same time, Oster began forwarding confidential and privileged emails to her personal email account on a self-help basis so that she “had a record” against Eck. Huntington maintains that her actions violated Bank policies and that she has thwarted discovery in this lawsuit by refusing to provide access to her computer for forensic analysis.

         7. The February 25, 2015 Meeting

         On February 25, Oster and Eck met again, with Wilder sitting in for HR. Their discussion centered on Eck's instructions to, and expectations of, Oster. Oster again complained that Eck was micromanaging her and changing her job duties and descriptions. Wilder, however, explained that, as Oster's manager, Eck had authority to change how litigation was managed, to be involved in her litigated matters, and to shift Oster's workload for the good of the department. In Wilder's estimate, Oster refused to accept this explanation. Wilder also felt that Oster would not accept Eck as her manager or the changes he was trying to make within the department. The meeting ended with Eck, Oster, and Wilder agreeing that they needed to escalate matters to the General Counsel. Oster alleges that Eck claimed the General Counsel already approved of everything he was doing, “as if to intimidate [her].” Oster also alleges that, at the end of the meeting, Wilder assured her that her job was not in jeopardy and that no one wanted her to leave.

         8. Huntington Decides to Terminate Oster's Employment

         Later that day, Cheap, Eck, and Wilder met to discuss Oster's continued employment. Wilder told Cheap that Oster would not accept Eck's management and was resisting his efforts to implement litigation-management changes. As a result, Wilder recommended that Oster be terminated. The Bank contends that Cheap decided to terminate Oster's employment due to her history of interpersonal issues with co-workers, culminating in her current refusal to accept Eck's management.

         On March 4, Cheap and Wilder met with Oster to inform her of the decision. Cheap told Oster that she was being terminated because the Legal Department was going in a “different direction.” Unbeknownst to Cheap or Wilder, Oster had surreptitiously recorded the meeting. Oster alleges in her affidavit that Cheap made other representations at her termination meeting that were not true, including the fact that “nobody else in the Legal Department obviously knows about this, ” when, in fact, Eck participated in an earlier meeting regarding her termination.

         9. Huntington Replaces Oster with a Female Attorney

         On August 17, 2015, another female attorney, Jennifer Mountcastle, replaced Oster as Senior Counsel, reporting to Eck. Mountcastle performs Oster's previous duties related to commercial litigation, including management of outside counsel representing Huntington as well as direct representation of the Bank in court. Mountcastle also handles all internal reporting of litigated matters, audit response letters, and other litigation-related duties performed by Oster prior to her termination.

         B. Procedural Background

         On August 21, 2015, Oster filed this lawsuit against the Bank, Eck, and Cheap, alleging gender discrimination and retaliation in violation of Title VII and Ohio Revised Code § 4112.02. (Doc. 1). Oster also alleges that Eck and Cheap “aided and abetted” discriminatory acts in violation of Revised Code § 4112.02(J). (Id.). The Bank has moved for summary judgment on all claims (Doc. 50), and also has raised an after-acquired evidence defense in support of Oster's termination. (Doc. 30). Oster has filed a motion to strike several affidavits and other evidence that Huntington filed in connection with its motion for summary judgment. (Doc. 81). She also has moved for summary judgment on the Bank's after-acquired evidence defense. (Doc. 58). All matters have been fully briefed and argued and now are ripe for review.


         A. Motion to Strike

         A 2010 Amendment to Federal Rule of Civil Procedure 56 changed the mechanism for objecting to supporting materials filed in connection with motions for summary judgment. Foreword Magazine, Inc. v. OverDrive, Inc., No. 1:10-cv-1144, 2011 WL 5169384, at *2 (W.D. Mich. Oct. 31, 2011). Now, “motions to strike are no longer appropriate.” Id. at *2 n.1. Instead, the Court will treat Oster's motion as an objection under Rule 56(c)(2), which provides: “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). The ...

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