United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
C. NUGENT, SENIOR UNITED SLATES DISTRICT JUDGE.
matter is before the Court on Defendants' the
Sherwin-Williams Company ("Sherwin-Williams") and
Jerry Kozik ("Defendant Kozik") (collectively,
"Defendants") Motion for Summary Judgment. (ECF
#22). Plaintiff, William Weinrauch ("Plaintiff or
"Mr. Weinrauch") timely filed a Brief in Opposition
(ECF #23) and Defendants filed a Reply. (ECF #28). After
careful consideration of the issues and a full review of the
filings and all relevant authority, Defendants' Motion
for Summary Judgment is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
William Weinrauch brings this action against his former
employer Defendants the Sherwin-Williams Company and Jerry
Kozik alleging age discrimination and retaliation in
violation of the Age Discrimination in Employment Act of 1967
("ADEA") and Ohio Revised Code § 4112.01
etseq. Plaintiff alleges Defendants discriminated
and retaliated against him on the basis of age by reassigning
him to a new position without managerial responsibilities
only to eliminate the position in a reduction of force and
terminate his employment roughly ten months later. Plaintiff
further alleges Defendant Kozik "aided and abetted"
Defendants efforts to discriminate and retaliate against him
in violation of R.C. § 4112.02(J).
Plaintiffs Employment at Sherwin-Williams
February 23, 2015, Defendant Sherwin-Williams hired
53-year-old Plaintiff Weinrauch to the position of IT Portal
Development Manager. (Compl., ECF #1, ¶ 16, 20;
Weinrauch Aff., ECF #23-1, ¶ 1). Susan Zielinski
("Ms. Zielinski") hired Plaintiff and she became
his direct supervisor. (Compl., ECF #1, ¶ 19). As IT
Portal Development Manager, Plaintiffs primary duties
included overseeing a team of approximately five other
Sherwin-Williams employees within the portal development
team, which then operated within a larger portal team.
(Weinrauch Aff., ECF #23-1, ¶ 2). Plaintiff was tasked
with retiring Defendants' current intranet application,
Chameleon, and migrating its contents and information to
Defendants' new system, MySherwin. (Weinrauch Aff, ECF
#23-1, ¶ 3). The Corporate IT Department was headed by
Defendant Jerry Kozik, who was 51-years-old at the time of
Plaintiff s hiring. (Kozik Dep. 6, 22).
ten months into Plaintiffs employment, Ms. Zielinski was
reassigned and Teresa Crane ("Ms. Crane") became
Plaintiffs supervisor. (Compl, ECF #1, ¶ 22). Ms. Crane
supervised Plaintiff for six months, at which time Heather
Johnson ("Ms. Johnson") began supervising Plaintiff
and his team. (Compl., ECF #1, ¶ 23-24).
Plaintiffs Meeting with HR Manager Ms.
around September of 2016, Plaintiff began expressing
dissatisfaction with his role as Portal Development Manager
and his strained relationship with Ms. Johnson. Plaintiff
received contentious communications from Ms. Johnson and his
repeated requests for training and career development went
unanswered. On September 28, 2016, Plaintiff forwarded Human
Resources Manager for the IT Department, Cynthia Bowen-Klek
("Ms. Bowen-Klek"), his most recent email exchange
with Ms. Johnson and requested a meeting. (Weinrauch Aff, ECF
#23-1, ¶ 5-9).
their meeting on September 28, 2016, Plaintiff told Ms.
Bowen-Klek that he felt underutilized and wanted new
opportunities within the organization. (Bowen-Klek Dep.
12:10-11, 40). Plaintiff informed Ms. Bowen-Klek that Ms.
Johnson treated him with disrespect, continually questioned
his work, and generally failed to communicate with him. In
his Affidavit and testimony, Plaintiff states he told Ms.
Bowen-Klek that he believed Ms. Johnson was singling him out
and treating him differently because of his age. (Compl., ECF
#1, ¶ 33; Weinrauch Aff, ECF #23-1, ¶ 10).
Following their meeting, Ms. Bowen-Klek prepared a note of
talking points and set up a meeting with Defendant Kozik to
discuss the conversation she had with Plaintiff. (Bowen-Klek
Bowen-Klek contacted Ms. Johnson and advised that she should
take a different approach with respect to her future
communication with Plaintiff. (Bowen-Klek Dep. 63). She
encouraged Ms. Johnson to facilitate more in person
communication and repair the tension between the two.
(Id.). Ms. Bowen-Klek and Defendant Kozik met and
agreed he would discuss the communication issues with both
Ms. Johnson and Plaintiff. (Kozik Dep. 65-66; Bowen Dep. 62).
Kozik held separate meetings with both Plaintiff and Ms.
Johnson and advised them of leadership standards and the
necessity for working together. (Kozik Dep. 68-70). During
Plaintiffs meeting with Defendant Kozik, he repeated his
concerns that he was not being challenged in his role and
shared with Defendant his wish to obtain another opportunity.
(Kozik Dep. 71). Defendant encouraged Plaintiff to think
about what he would like to do and on October 17, 2016,
Plaintiff emailed Defendant about a business development
manager role he wanted Defendants to create for him in the IT
Department. (Weinrauch Dep. 139; Kozik Dep. 71, 99, 120).
Plaintiffs Reassignment to an Individual Contributor
December of 2016, Ms. Johnson resigned her employment with
Sherwin-Williams and management decided to combine the portal
team (for which Plaintiff served as supervisor) and the app
team together under the management of Maneesha Arashanapalli.
(Kozik Dep. 75). Defendants identified a business need for
departmental reporting and tool oversight, an opening created
when former portfolio analyst, Adam Garrett, left
Sherwin-Williams several months prior. (Bowen-Klek Dep.
January of 2017, Plaintiff began his new individual
contributor role as Portfolio Manager, a position he had
initially sought with Defendants in 2014 before a hiring
freeze. (Weinrauch Dep. 38-40). As Portfolio Manager,
Plaintiff was responsible for handling departmental reporting
and Oracle Business Intelligence Enterprise Edition
("OBIEE") oversight. (Weinrauch Aff., 17;
Brownsword Dep. 74). In this individual contributor role,
Plaintiff was no longer responsible for managing other
employees, but did maintain his same grade level, pay and
benefits. (Weinrauch Dep. 185). Plaintiff began reporting to
Senior IT Manager, Megan Brownsword ("Ms.
Brownsword"), age 35 at the time of Plaintiff s transfer
(Weinrauch Aff. ¶ 14).
in January of 2017, Plaintiff made multiple attempts via
email to inform Ms. Brownsword of his desire to
"contribute" to the role. In February and March of
2017, Plaintiff submitted proposals to Ms. Brownsword and
requested to join a Salesforce project. Ms. Brownsword failed
to respond to some of Plaintiff s communications or advised
she would follow up, which she never did. Plaintiff continued
to contact Ms. Brownsword through the spring and summer of
2017, communications which Ms. Brownsword either ignored or
denied Plaintiffs requests. (Weinrauch Aff. ¶ 18-19).
Plaintiffs Position is Eliminated in Defendants'
Reduction in Force
1, 2017, Sherwin-Williams acquired The Valspar Corporation in
an $11.3B merger. (Kozik Dep. 80). Around August of 2017,
Defendant met with Jeff Gerber, Valspar's Vice President
of IT, regarding an opportunity for a business relationship
manager position as the acquisition of Valspar had been
completed. (Weinrauch Aff. at ¶ 21). Mr. Gerber informed
Defendant Kozik of Plaintiff s interest in the position, the
same type of opportunity Plaintiff asked Defendant to create
for him in October of 2016. (Kozik Dep. 99-100).
merger between Sherwin-Williams and Valspar left Defendants
with a number of redundancies and overlapping expense, and as
a result, every operating unit in Sherwin-Williams received
aggressive "value capture" budgets holding them to
significant cost reduction requirements. (Kozik Dep. 97).
Sherwin-Williams cut thousands of employees worldwide.
Defendant Kozik first tried meeting his value capture budget
by reducing expenses on things like software, vendor
contracts, hardware, and projects. However, Defendant was
unable to meet his budget and thus had to reduce headcount.
(Kozik Depo. 97).
could not meet his headcount and thus had to begin
eliminating positions. (Kozik Dep. 96-98). In the headcount
reduction process, Defendants' Corporate IT Department
examined areas for redundancy and work that the Department
could ask the operating divisions to do themselves. (Bowen
Dep. 118-19; Kozik Dep. 97, 107, 109). Ultimately, Defendants
cut twenty-five employees within its IT Department, and had
to separate six members of his team, who ranged in age from
28-62. (Kozik Dep. 108-109; Def. Response to Interrog. No.
September 26, 2017, Ms. Bowen-Klek and Defendant Kozik met
with Plaintiff and informed him that his position was being
eliminated in a reduction in force following Defendants'
acquisition of Valspar. (ECF #1, ¶ 64-65). Defendant
told Plaintiff he decided his team would no longer perform
the facilitation and administrative work for reporting or the
OBIEE oversight. (Bowen-Klek Dep. 119; 122-23). Defendants
presented Plaintiff with separation and severance documents.
(ECF #1, ¶ 66). On December 15, 2017, Plaintiff filed
his EEOC Charge of Discrimination and the EEOC issued a Right
to Sue Letter on June 15, 2018 for his Charge of
Discrimination. (ECF #1, ¶ 11-12). On July 23, 2018,
Plaintiff initiated this action against Defendants
Sherwin-Williams and Jerry Kozik for age discrimination,
retaliation, and aiding and abetting. (ECF
STANDARD OF REVIEW
judgment is appropriate when the court is satisfied
"that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law." FED. R. CIV. P. 56(c); Provenzano v.
LCI Holdings, Inc., 663 F.3d 806 (6th Cir.
2011). The burden of showing the absence of any such
"genuine issue" rests with the moving party:
[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of 'the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any,'
which it believes demonstrates the absence of a genuine issue
of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(citing FED. R. Civ. P. 56(c)). A fact is
"material" only if its resolution will affect the
outcome of the lawsuit. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Determination of
whether a factual issue is "genuine" requires
consideration of the applicable evidentiary standards.
Although evidence may be presented in support of a summary
judgment motion, the moving party need not support its motion
with affidavits or similar materials that negate the
non-mover's claim(s) if they can otherwise show an
absence of evidence supporting the non-mover's case.
Morris v. Oldham County Fiscal Court, 201 F.3d 784,
788 (6th Cir. 2000). The court will view the
summary judgment motion in the light most favorable to the
party opposing the motion. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
judgment should be granted if a party who bears the burden of
proof at trial does not establish an essential element of
their case. Tolton v. American Biodyne, Inc., 48
F.3d 937, 941 (6th Cir. 1995) (citing
Celotex, 477 U.S. at 322). Accordingly, "[t]he
mere existence of a scintilla of evidence in support of the
plaintiffs position will be insufficient; there must be
evidence on which the jury could reasonably find for the
plaintiff." Copelandv. Machulis, 57 F.3d 476,
479 (6th Cir. 1995) (citing Anderson, 477
U.S. at 252). Moreover, if the evidence presented is
"merely colorable" and not "significantly
probative," the court may decide the legal issue and
grant summary judgment. Anderson, 477 U.S. at 249-50
(citations omitted); see also, Arendate v. City of
Memphis, 519 F.3d 587 (6th Cir. 2008). In
most civil cases involving summary judgment, the court must
decide "whether reasonable jurors could find by a
preponderance of the evidence that the [non-moving party] is
entitled to a verdict." Id. at 252. However, if
the non-moving party faces a heightened burden of proof, such
as clear and convincing evidence, it must show that it can
produce evidence which, if believed, will meet the higher
standard. Street v. J.C. Bradford & Co., 886
F.2d 1472, 1479 (6th Cir. 1989).
the moving party has satisfied its burden of proof, the
burden then shifts to the non-mover. The non-moving party may
not simply rely on its pleadings, but must "produce
evidence that results in a conflict of material fact to be
solved by a jury." Cox v. Kentucky Dep'(of
Tramp., 53 F.3d 146, 149 (6th Cir. 1995).
FED. R. Civ. P. 56(e) states:
When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the
mere allegations or denials of the adverse party's
pleading, but the adverse party's response, by affidavits
or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for
Federal Rules identify the penalty for the lack of such a
response by the nonmoving party as an automatic grant of
summary judgment, where otherwise appropriate. Id.
proper summary judgment analysis entails "the threshold
inquiry of determining whether there is the need for a
trial-whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either
party." Anderson, 477 U.S. at 250.
Plaintiffs Age Discrimination Claims Fail ...