United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE
the Court is the motion of defendants, Alliance Tubular
Products LLC and Alliance Tubular Holdings LLC (collectively
“Alliance Tubular”), for summary judgment (Doc.
No. 30 [“MSJ”]). Plaintiff Joseph Rainieri
(“Rainieri) opposes the motion (Doc. No. 33
[“Opp'n”]), and Alliance Tubular has filed a
reply (Doc. No. 34 [“Reply”]). For the reasons to
follow, the motion is granted and the case is dismissed.
was employed by Alliance Tubular as a maintenance shift
supervisor from 2014 to February 3, 2017, when he voluntarily
resigned to take a position at another company. Rainieri was
56 years of age when he was hired by Alliance Tubular and was
58 when he left. During his tenure with Alliance Tubular,
Rainieri reported to Bob McClellan, who was the maintenance
superintendent for the Alliance, Ohio, facility. Bob
McClellan, in turn, reported to Rob Utley, who was the
Alliance Tubular facility plant manager. McClellan was 52 and
Utley was 48 when Rainieri resigned. These initial facts are
2016 or early 2017, Alliance Tubular maintains that it
instituted a position requirement for all supervisors that
they have a college degree in order to be hired. (Doc. No.
30-14 (Declaration of Robert Utley [“Utley
Decl.”]) ¶ 6.) According to Alliance Tubular, the
college degree requirement was abandoned in July 2017 when
the company encountered difficulty filing supervisory
positions with college-educated candidates. (Id.
¶¶ 7, 8.)
began reapplying for the maintenance shift supervisor
position shortly after he resigned in February 2017. (Doc.
No. 30-2 (Excerpts from Deposition of Joseph Rainieri (Day 1)
[“Rainieri Tr.”]) at 291; Doc. No. 30-18 (Declaration
of John Lamb [“Lamb Decl.”]) ¶
It is undisputed that Rainieri applied for reemployment
twelve times between February and March 31, 2017; and
seventeen times between March 31, 2017, and the end of July
2017. (Lamb Decl. ¶¶ 4-5.) Utley made the first
decision not to rehire Rainieri in February 2017. (Utley
Decl. ¶¶ 25-26.) According to Alliance Tubular,
Utley's initial decision was based on the fact that
Rainieri did not meet the then-requirement of a college
degree and Rainieri had performance and management
deficiencies as a maintenance shift supervisor that caused
problems for his superiors and subordinates. (Doc. No. 30-17
(Excerpts from Deposition of Robert Utley [“Utley
Tr.”]) at 625; Utley Decl. ¶¶ 10-21, 25-27.)
Even after the college degree requirement was lifted in July
2017, Alliance Tubular contends that it continued to deny
Rainieri reemployment based on Utely's decision that
Rainieri was not qualified because of his performance and
management deficiencies. (Lamb Decl. ¶ 14.)
claims that age discrimination is the real reason behind the
decisions not to rehire him. He also insists that some of the
later decisions were motivated, in part, by unlawful
retaliation for Rainieri having filed a charge of
discrimination with the Ohio Civil Rights Commission
(“OCRC”) on March 31, 2018, and for hiring a
lawyer sometime between the filing of his charge and the OCRC
mediation on May 23, 2017.
February 7, 2018, Rainieri filed the present lawsuit. In his
second amended complaint (“SAC”), he raises
claims under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621, et
seq.; retaliation under Ohio Rev. Code § 4112.02;
failure to pay overtime compensation, pursuant to the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §
216(b); and willful violation of the FLSA, under 29 U.S.C.
§ 216(e)(2). (Doc. No. 15 (SAC).) Alliance Tubular moves
for summary judgment on all counts, arguing that the
undisputed facts show that Rainieri was not denied
reemployment due to age discrimination or retaliation for
filing an administrative charge, and that he was properly
denied overtime compensation.
Standard of Review
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
fact is material if its resolution affects the outcome of the
lawsuit under the governing law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). A dispute is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. If a
reasonable jury could return a verdict for the nonmoving
party, then summary judgment is not appropriate. Id.
moving party must provide evidence to the court which
demonstrates the absence of a genuine dispute as to any
material fact. Once the moving party meets this initial
burden, the opposing party must come forward with specific
evidence showing that there is a genuine issue for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson, 477
U.S. at 250. It is the nonmoving party's duty to point
out specific facts in the record that create a genuine issue
of material fact; the trial court does not have a duty to
search the record “to establish that it is bereft of a
genuine issue of material fact.” Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.
1989) (citing Frito-Lay, Inc. v. Willoughby, 863
F.2d 1029, 1034 (D.C. Cir. 1988)); Fulson v. City of
Columbus, 801 F.Supp. 1, 4 (S.D. Ohio 1992) (citation
nonmoving party may oppose a summary judgment motion
“by any of the kinds of evidentiary material listed in
Rule 56(c), except the mere pleadings themselves[.]”
Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The Court
must view all facts and evidence, and inferences that may be
reasonably drawn therefrom, in favor of the non-moving party.
United States v. Diebold, Inc., 369 U.S. 654, 655,
82 S.Ct. 993, 8 L.Ed.2d 176 (1962). General averments or
conclusory allegations of an affidavit do not create specific
fact disputes for summary judgment purposes. See Lujan v.
Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89, 110
S.Ct. 3177, 111 L.Ed.2d 695 (1990).
judgment requires that a plaintiff present more than a
scintilla of evidence to demonstrate each element of a prima
facie case.” Garza v. Norfolk S. Ry. Co., 536
Fed.Appx. 517, 519 (6th Cir. 2013) (citing Van Gorder v.
Grand Trunk W. R.R., 509 F.3d 265, 268 (6th Cir. 2007)).
“‘The mere existence of a scintilla of evidence
in support of the [nonmoving party's] position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [nonmoving party].'”
Street, 886 F.2d at 1477 (quoting Anderson,
477 U.S. at 252).
district court's review on summary judgment is a
threshold inquiry to determine whether there is the need for
a trial due to genuine factual issues that must be resolved
by a finder of fact because those issues may reasonably be
resolved in favor of either party. Anderson, 477
U.S. at 250. Put another way, this Court must determine
“whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Id. at 251-52; see also Wexler v.
White's Fine Furniture, Inc., 317 F.3d 564,
578 (6th Cir. 2003).
[Summary judgment is required] against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial. In such a
situation, there can be no genuine issue as to any material
fact, since a complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial. The moving
party is entitled to judgment as a matter of law because the
nonmoving party has failed to make a sufficient showing of an
essential element of [his] case with respect to which [he]
has the burden of proof.
Celotex, 477 U.S. at 322-23 (internal quotation
marks and citation omitted).
makes it unlawful for an employer to “fail or refuse to
hire” an individual “because of such
individual's age[.]” 29 U.S.C. § 623(a)(1). A
plaintiff bringing an ADEA claim “must prove that age
was a determining factor in the adverse action that the
employer took against him or her.” Phelps v. Yale
Sec., Inc., 986 F.2d 1020, 1023 (6th Cir. 1993) (citing
Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d
227, 299-30 (6th Cir. 1990)). The Supreme Court has held that
the ADEA does not permit “a mixed-motives” claim;
instead, a plaintiff alleging a violation of § 623(a)
must prove by a preponderance of the evidence that “age
was the ‘but-for' cause of the employer's
adverse action.” Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 175, 177, 129 S.Ct. 2343, 174
L.Ed.2d 119 (2009); DeBra v. JPMorgan Chase &
Co., No. 17-1411, 2018 WL 4212493, at *4 (6th Cir. Sept.
Direct Evidence of Age Discrimination
discrimination may be established by either direct or
circumstantial evidence. Rainieri suggests that his ADEA
claim is based on direct evidence; namely, a remark made by
McClellan shortly after Rainieri had advised Alliance Tubular
that he was leaving to take another position. It is
Rainieri's position that, in a conversation in
Rainieri's office during a shift change that took place
“probably maybe in January ”, McClellan
advised Rainieri that he was going to replace Rainieri with
someone “stronger than [him] electrically and
younger.” (Rainieri Tr. at 280-81.) Rainieri suggests
that this remark is direct evidence of age discrimination.
evidence is evidence that proves the existence of a fact
without requiring any inferences.” Rowan v.
Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548
(6th Cir. 2004) (citing, among authority, Manzer v.
Diamond Shamrock Chem. Co., 29 F.3d 1078, 1081 (6th Cir.
1994)). “[O]nly the most blatant remarks, whose intent
could be nothing other than to discriminate on the basis of
age, . . . constitute direct evidence of
discrimination.” Carter v. City of Miami, 870
F.2d 578, 582 (11th Cir. 1989).
whether a statement constitutes direct evidence of age
discrimination requires an evaluation based on the following
(1) whether the statements were made by a decision-maker or
by an agent within the scope of his employment; (2) whether
the statements were related to the decision-making process;
(3) whether the statements were more than merely vague,
ambiguous or isolated remarks; and (4) whether they were made
proximate in time to the [adverse employment action].
Peters v. Lincoln Elec. Co., 285 F.3d 456, 478 (6th
Cir. 2002) (citing Cooley v. Carmike Cinemas, Inc.,
25 F.3d 1325, 1330 (6th Cir. 1994)). “No single factor
is necessarily dispositive and courts should ‘tak[e]
all of the circumstances into account.'” Smith
v. Chester Cty. Bd. of Educ., 218 F.Supp.3d 619, 624 (W.
D. Tenn. 2016) (alteration in original) (quoting
Peters, 285 F.3d at 478).
assessing the relevancy of a discriminatory remark, [courts]
look first at the identity of the speaker.'”
Sharp v. Aker Plant Servs. Grp., Inc., 726 F.3d 789,
798 (6th Cir. 2013) (quoting Ercegovich v. Goodyear Tire
& Rubber Co., 154 F.3d 344, 354 (6th Cir. 1998)).
“Discriminatory remarks by decision makers and those
who significantly influence the decision-making process can
constitute direct evidence of discrimination.”
it is undisputed that the speaker (McClellan) was not the
ultimate decision maker. Alliance Tubular contends that the
decision to deny Rainieri reemployment was made by Utley,
though Utley concedes that he made his decision “after
consulting with” McClellan and John Lamb. (Utley Decl.
¶¶ 25-26.) It was Utley's belief that Rainieri
was “not qualified for the position and [Utley] was
adamant about not bringing him back.” (Id.
¶ 26.) As set forth above, Utley insisted that he made
the initial decision based on the facts that Rainieri did not
have a college degree and that he had performance and
management deficiencies. (Id. ¶ 27.) According
to Utley, Rainieri had “an abrasive and argumentative
management style” that interfered with his ability to
be an effective shift manager. (Id. ¶¶
10-13.) All subsequent decisions to deny Rainieri
reemployment, include those made after the college degree
requirement was lifted, were based upon Utley's initial
decision that Rainieri's management deficiencies rendered
him unqualified for the position. (Lamb Decl. ¶ 14.)
evaluating the actions of a non-decision maker, “a
biased employee's ‘position [of] influence' is
probative of that employee's ability to influence the
ultimate decisionmaker.” Chattman v. Toho Tenax
Am., Inc., 686 F.3d 339, 353 (6th Cir. 2012) (quoting
Ercegovich, 154 F.3d at 355)). All that is know
about McClellan's role in the decision-making process is
that he (along with Lamb) “provided input” but
that the decision was made by Utley, who was
“adamant” in his determination that Rainieri was
not qualified for the position. (Utley Decl. ¶ 25.)
However, given the fact that McClellan was Rainieri's
immediate supervisor, and viewing the evidence in a light
most favorable to Rainieri, the ...