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Sciaretta v. Refractory Specialties, Inc.

Court of Appeals of Ohio, Seventh District, Mahoning

March 16, 2018


          Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2014 CV 02532

          For Plaintiff-Appellant: Atty. Ira J. Mirkin Atty. Richard T. Bush Green Haines Sgambati, Co., L.P.A.

          For Defendants-Appellees: Atty.Ashley M. Manfull Vorys, Sater, Seymour and Pease, LLP.

          Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Cheryl L. Waite, Judge.


          ROBB, P.J.

         {¶1} Plaintiff-Appellant Domenico P. Sciaretta appeals the decision of the Mahoning County Common Pleas Court granting summary judgment in favor of Defendants-Appellees Refractory Specialties, Inc. (RSI) and Unifrax I, LLC (Unifrax). Appellant contends there was a genuine issue of material fact as to his age discrimination claim. For the following reasons, this court concludes there was a genuine issue of material fact precluding summary judgment.

         {¶2} Appellant also claims the court abused its discretion in denying his motion to compel discovery on Unifrax succession planning (and his motion to stay the summary judgment briefing until such discovery was produced). Even assuming some of the information sought was relevant under discovery standards, Appellant's argument is overruled as the request was overbroad and untimely.

         {¶3} The summary judgment is hereby reversed, and the case is remanded for further proceedings.


         {¶4} Appellant began working as a product manager for RSI in Sebring in 2006, when he was 63 years old. In 2011, Unifrax acquired RSI as a wholly-owned subsidiary. According to Appellant, RSI's owner (Wilk) told him about the sale the day before it was announced and informed him, since he was a key employee, Unifrax asked how old he was and how much longer he planned to work for the company. (Sciaretta Dep. 34). Wilk told Unifrax Appellant was his age and they both planned to continue working as long as they enjoyed their work.

         {¶5} In July 2013, a Unifrax general manager (Olchawski) prepared a succession planning document estimating Appellant's retirement date as July 2017. He also wrote a memorandum on the need for "immediate succession planning" for Appellant (and others) which discussed the need to identify "the next generation of leadership" and the "need to get the next generation in place." (Olchawski Dep. 6, 16-24).

         {¶6} In December 2013, Wilk told Appellant Unifrax was again raising the same inquiry about his age and retirement. (Sciaretta Dep. 72). Appellant voiced it was none of their business. He said other companies he worked for engaged in succession planning without using ages or retirement plans as it was not necessary and a person could leave for various reasons. He opined if a corporation asked how many more years an employee was going to work, the answer would have an influence on the employee's position and promotions. Appellant had the impression Unifrax was pressuring Wilk for information. After a week, Appellant felt compelled to provide Wilk with an estimate that he planned to work until he was 75 (which would be April 2018). (Sciaretta Dep. 74).

         {¶7} A month later, in January 2014, Appellant went to a convention in New York. Appellant said Olchawski asked him over dinner: his age, why he was still working, and how much longer he was going to work. (Sciaretta Dep. 86-88). The dinner then became confrontational.

         {¶8} In March 2014, Unifrax posted a position opening for Market Manager-Silplate, which would be located at corporate headquarters in Tonawanda, New York and would require domestic and international travel. Unifrax sought a candidate with a degree in mechanical engineering (or equivalent), 7-10 years of experience in the steel and refractory industry with 3-5 years of sales experience, good communication skills at various organizational levels, and complete knowledge of Fiberfrax products and their application. Appellant, who was 71 years old at the time, applied for the position. Appellant had an equivalent degree (chemical engineering) and worked in the steel and refractory industry for 43 years. Appellant said he had sales experience, which included direct and international sales. (Sciaretta Dep. 190-194). Wilk opined Appellant was "very qualified" for the position and more qualified than the younger employee who filled the position. (Wilk Dep. 49-51).

         {¶9} A vice president at Unifrax (Juda) was the decision-maker in filling the position. Of the five applicants, Appellant was the only one who was not called for an interview. Three of those interviewed worked in front-line sales positions at Unifrax and the other was an international marketing and sales manager for a competitor. Juda sent an email to his boss noting one candidate "appears to be a good athlete" and the candidate they hired "is also a good athlete" but "isn't quite there yet." Juda claimed he used the term to mean the candidate was well-rounded with the right tools and the potential to grow into the position. (Juda Dep. 103-104).

         {¶10} A human resources employee who scheduled the interviews testified when she asked Juda whom he wanted to interview, he said he did not want to interview Appellant because Appellant fell asleep at a regional sales meeting. (Horne Dep. 21). Juda also commented to her that Appellant "was close to retirement age." She clarified that this comment was made in the context of Juda explaining why he would not be interviewing Appellant. (Horne Dep. 22). In response to Juda's retirement age comment, the human resources employee told him he should talk to Kuchera (another Unifrax vice president) about that topic, and Juda said he would.

         {¶11} Juda hired a 29-year-old Unifrax employee, but because this employee was short of the desired years of sales and marketing experience, he was hired with a lower title and a step lower salary grade than that posted. (Juda Dep. 50-52, 77). This employee was permitted to continue working out of Pittsburgh. Juda said he received calls recommending this employee and was impressed with his preparation at the interview. After working for two years in direct sales at another company in Dubai, this employee began working at Unifrax in 2010, starting in direct sales at Unifrax in 2012, with the responsibility for sales in North and South America, including sales of Silplate. This employee had unsuccessfully applied for the position in 2013 when it was first created, and he then worked with the person who was hired to fill the position overseeing the global launch of the product Silplate. (The former market manager had a Ph.D. with significant technical knowledge and experience in the industry, but Juda concluded the position required more skill in direct sales and marketing).

         {¶12} Juda said it did not appear Appellant had front-line sales experience. (Juda Dep. 32, 75). Appellees state Appellant spent most of his workday on the telephone answering questions from sales employees or people who learned of the product online and was not responsible for meeting sales goals or creating marketing strategies; they construed his current position as involving little time developing sales. Appellant and Wilk testified Appellant had front-line sales experience.

         {¶13} Juda also explained he had a negative impression of Appellant because the first time he met him in mid-2012, Appellant fell asleep during a sales meeting. Juda had traveled from New York to lead the meeting, and Appellant was sitting next to Juda at a boardroom-style table. (Juda Dep. 32, 35). During the hiring process, Juda asked Olchawski if he was missing anything about Appellant's performance and Olchawski answered in the negative. (Juda Dep. 44). Olchawski, who was the person involved in preparing the succession plan for Appellant, testified he told Juda Appellant was not a star performer, his quantity of work "wasn't that good, " and his quality of work was average. (Olchawski Dep. 12-13). Juda said he had "[p]retty much" already decided not to interview Appellant prior to the conversation. (Juda Dep. 47-48). Wilk, who testified favorably as to Appellant's work skills and was Appellant's direct supervisor, was not asked for his opinion by Juda.

         {¶14} In October 2014, Appellant filed a complaint alleging a state age discrimination claim against RSI and Unifrax under R.C. 4112.02(A). Appellant's discovery deadline was extended until March 1, 2016. On March 30, 2016, Appellant filed a motion to compel discovery of Unifrax's succession planning documents. The defense previously produced all RSI succession planning documents created by Olchawski which related to Appellant. They asserted the motion to compel was untimely and the higher-level succession planning at the parent corporation was separate and irrelevant to Appellant as it involved identification of potential successors to the officers of the company (and not the position Appellant occupied or desired). (Kuchera Dep. 76-77).

         {¶15} On May 2, 2016, Appellees filed motions for summary judgment. They urged there was no direct evidence of age discrimination, and even if Appellant had direct evidence, Juda would have made the same decision absent the impermissible motive. They did not dispute Appellant had made an indirect, prima facie case for purposes of summary judgment; they then pointed to non-discriminatory reasons for Appellant's rejection and concluded Appellant could not show the proffered reasons were pretextual. RSI's motion additionally argued, regardless of whether Unifrax and RSI were joint employers of Appellant, only Unifrax made the actionable decision and RSI engaged in no adverse employment action as Appellee still worked for RSI.

         {¶16} On May 5, 2016, Appellant filed a request to delay further briefing until the motion to compel was decided. On July 1, 2016, the magistrate denied the motion to delay briefing and the motion to compel discovery. On July 7, 2016, Appellant filed a motion to stay and set aside the magistrate's order.

         {¶17} Without a trial court ruling on the discovery issue, Appellant responded to the summary judgment motion on July 29, 2016. Appellant urged there was direct and indirect evidence of age discrimination and a genuine issue as to whether the proffered reasons were pretext and whether the same decision would have been made in the absence of the impermissible motive. On August 5, 2016, Appellees filed their replies in support of summary judgment.

         {¶18} On August 22, 2016, the trial court denied the motion to set aside the magistrate's order (denying the motion to compel and to stay briefing). On May 4, 2017, the trial court granted summary judgment in favor of Appellees. The court found Appellant did not provide direct evidence of age discrimination. In evaluating the indirect case, the court noted Appellant's prima facie case was not disputed by the defense and the defense presented legitimate, nondiscriminatory reasons (Juda had a negative impression of Appellant because he fell asleep at a meeting; Juda's review of Appellant's resume gave him the impression Appellant lacked front-line sales experience; and Olchawski confirmed Juda was not missing anything).

         {¶19} The court then evaluated whether Appellant showed the reasons proffered by the defense were mere pretext for age discrimination. The court said Appellant did not dispute he fell asleep during the meeting or show the incident did not motivate Juda's decision. The court also said Appellant failed to refute that Juda perceived (right or wrong) that Appellant did not have sufficient sales and marketing experience. The court noted the chosen candidate did not lack the type of experience Juda sought but merely lacked the length of experience. The court also concluded the allegation that RSI managers asked ...

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