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Brehm v. The MacIntosh Co.

Court of Appeals of Ohio, Tenth District

December 24, 2019

John F. Brehm, Plaintiff-Appellant,
The MacIntosh Company, Defendant-Appellee.

          APPEAL from the Franklin County Court of Common Pleas, No. 17CV-7938

         On brief:

          William J O'Malley, for appellant.

          Dinsmore & Shohl, LLP, and Jan E. Hensel and Jacqueline N. Rau, for appellee.


          William J. O'Malley.

          Jan E. Hensel.


          BEATTY BLUNT, J.

         {¶ 1} Plaintiff-appellant, John F. Brehm, appeals from a decision of the Franklin County Court of Common Pleas granting summary judgment to defendant-appellee, The MacIntosh Company, on Brehm's age discrimination claim under R.C. Chapter 4112. Because the evidence does not present a genuine issue of material fact for trial, we affirm the judgment of the trial court.

         I. Facts and Procedural History

         {¶ 2} The MacIntosh Company ("MacIntosh") owns and operates 7 skilled nursing and assisted living facilities in the Columbus, Ohio area. Brehm was hired in February 2016 to fill the position of Administrator of the New Albany facility. Brehm was interviewed and hired by Chief Operating Officer John Dunn, President and Chief Financial Officer Curt Anderson, and Human Resources Director Brian Kinzer. Brehm was 60 years old at the time of his hire.

         {¶ 3} As Administrator, Brehm's responsibilities included "ensuring financial strength and operating efficiency with growth," providing "direct oversight and management to all departments of the facility," and maintaining "regular meetings with key management and project teams to review status, issues and innovations." (Brehm Depo. Ex. 5) Brehm also was required to attend and participate in monthly financial meetings with MacIntosh's executive board.

         {¶ 4} It is undisputed that during Brehm's tenure as Administrator, the New Albany facility's revenue experienced a downturn. It is further undisputed that during Brehm's time as Administrator, the New Albany facility's net income decreased 37.2 percent compared to the previous year, from $1, 098, 558 to $689, 998. In addition, the office supply budget was continuously exceeded during Brehm's time as Administrator, and an analysis of the office supply issue was not completed by Brehm until September 2016, six months after he was first notified of the issue.

         {¶ 5} In December 2016, Dunn created a new formalized agenda for all Administrators to use in the monthly financial meetings, beginning with the meeting to be held in February 2017. The purpose of the new agenda was to assist the Administrators in presenting each facility's financial information in a detailed manner. Although Brehm utilized the new agenda for the February 2017 monthly financial meeting, it is undisputed that the completed agendas of all the other Administrators were more detailed and comprehensive than Brehm's.

         {¶ 6} Subsequent to the February 2017 financial meeting, on February 22, 2017, Dunn sent an e-mail to Brehm with the subject "Annual Eval Info". In the e-mail, Dunn requested that Brehm provide copies of multiple meeting agendas, notes, and certain communications with managers. In response to the e-mail, Brehm provided Dunn with four handwritten agendas for manager meetings, which undisputedly were not provided to the department leaders at the time the meetings were held. Brehm also provided a copy of his weekly calendar indicating that department meetings had been scheduled on Wednesdays and Fridays and some handwritten notes to reflect meetings that occurred with four out of his eight department managers. Brehm advised Dunn that he did not have any documentation from manager meetings other than that provided.

         {¶ 7} Dissatisfied with both the quantity and quality of the documentation provided by Brehm in response to the February 22, 2017, e-mail, coupled with his ongoing concern that Brehm was not effectively managing the facility, Dunn recommended to Anderson that Brehm's employment be terminated. Anderson agreed, and on March 10, 2017, Dunn met with Brehm and informed him that his employment with MacIntosh was being terminated. At the time of his termination, Brehm was 61 years old. Ultimately, Brehm was replaced as Administrator by a person who was 34 years old.

         {¶ 8} Brehm filed his complaint on September 1, 2017, alleging age discrimination in violation of R.C. Chapter 4112. MacIntosh filed a motion for summary judgment on October 8, 2018. After the parties fully briefed the issues, the trial court granted the motion for summary judgment on December 14, 2018. This appeal followed.

         II. Assignment of Error

         {¶ 9} Brehm assigns the following as his sole error:

The trial court erred when it granted summary judgment to defendant the Macintosh Company on plaintiff-appellant's claim of age discrimination.

         III. ...

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