Court of Appeals of Ohio, Seventh District, Mahoning
DOMENICO P. SCIARETTA, PLAINTIFF-APPELLANT,
REFRACTORY SPECIALTIES, INC. et al. DEFENDANTS-APPELLEES.
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 2014 CV 02532
Plaintiff-Appellant: Atty. Ira J. Mirkin Atty. Richard T.
Bush Green Haines Sgambati, Co., L.P.A.
Defendants-Appellees: Atty.Ashley M. Manfull Vorys, Sater,
Seymour and Pease, LLP.
Carol Ann Robb Hon. Gene Donofrio Hon. Cheryl L. Waite,
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.
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.
The summary judgment is hereby reversed, and the case is
remanded for further proceedings.
OF THE CASE
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
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).
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).
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.
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).
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).
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.
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).
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
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.
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).
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.
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
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.
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).
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 ...