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Weinrauch v. Sherwin-Williams Co.

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

July 10, 2019




         This 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.


         Plaintiff 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).

         A. Plaintiffs Employment at Sherwin-Williams

         On 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).

         Approximately 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).

         B. Plaintiffs Meeting with HR Manager Ms. Bowen-Klek

         On or 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).

         During 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 Dep. 79).

         Ms. 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).

         Defendant 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).

         C. Plaintiffs Reassignment to an Individual Contributor Role

         In 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. 100).[2]

         In 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).

         Beginning 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).

         D. Plaintiffs Position is Eliminated in Defendants' Reduction in Force

         On June 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).

         The 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).

         Defendant 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. 23).

         On 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 #1).


         Summary 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).

         Summary 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).

         Once 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 trial.

         The 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.

         In sum, 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.

         III. ANALYSIS

         A. Plaintiffs Age Discrimination Claims Fail ...

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