12 F.3d 1382 (6th Cir. 1993), 92-3622, Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A.

Docket Nº92-3622.
Citation12 F.3d 1382
Party NameJames F. BARNHART, Plaintiff-Appellant, v. PICKREL, SCHAEFFER & EBELING COMPANY, L.P.A., et al., Defendants-Appellees.
Case DateOctober 21, 1993
CourtUnited States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1382

12 F.3d 1382 (6th Cir. 1993)

James F. BARNHART, Plaintiff-Appellant,

v.

PICKREL, SCHAEFFER & EBELING COMPANY, L.P.A., et al.,

Defendants-Appellees.

No. 92-3622.

United States Court of Appeals, Sixth Circuit

October 21, 1993

Argued June 29, 1993.

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[Copyrighted Material Omitted]

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Andrew J. Ruzicho (argued on brief), Columbus, OH, for plaintiff-appellant.

Konrad Kircher (argued), David C. Greer (on brief), Dayton, OH, for defendants-appellees.

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Before: RYAN and BOGGS, Circuit Judges; and ROSEN, District Judge. [**]

PER CURIAM.

Plaintiff James F. Barnhart appeals the decision of the district court granting Defendants' motion for summary judgment on Plaintiff's claim under the Age Discrimination in Employment Act ("ADEA"). Plaintiff, formerly an attorney with the Defendant law firm, alleged in his complaint that the Defendant firm, as well as each Defendant shareholder individually, wrongfully terminated his employment with the firm because of his age and, alternatively, because of his handicap (alcoholism). Plaintiff claimed a violation of the ADEA, as well as breach of contract, promissory estoppel, and handicap discrimination under Ohio state law. The district court granted Defendants' motion for summary judgment on the ADEA claim, and it dismissed without prejudice the remaining supplemental claims. Plaintiff now appeals only the denial of relief under ADEA, as he has refiled his remaining claims in Ohio state court.

Finding that Plaintiff has failed to demonstrate that Defendants' non-discriminatory reasons for terminating Plaintiff were pretext, we affirm.

I.

Plaintiff James F. Barnhart worked for the Defendant law firm of Pickrel, Schaeffer, & Ebeling for thirty-two years. Barnhart first joined the firm as an associate attorney in 1957. He later left the firm for several years but, in 1976, upon payment of $21,700, Barnhart rejoined Pickrel, Schaeffer, & Ebeling as a senior partner. When the firm incorporated under Ohio law in 1984, Barnhart became an executive attorney and shareholder, entitling him to a share of the firm's profits. The firm's president appointed Barnhart as head of the firm's litigation department in 1987, and Barnhart worked for the firm in this capacity until his termination in 1989.

Throughout much of Barnhart's tenure with the Defendant firm, he waged a constant battle against a severe drinking problem. Between 1972 and 1983, Barnhart consumed alcohol on an almost daily basis. By 1980, he admits, he drank alcohol in such quantities and with such frequency as to render himself an alcoholic. Several doctors concurred in Barnhart's self-diagnosis.

Barnhart contends that he first became cognizant of his drinking problem in 1979. Realizing at that time that alcohol interfered with his life, he attended several Alcoholics Anonymous meetings over the course of a one-month period. These self-help meetings did little, however, to stem Barnhart's excessive drinking. Throughout the early 1980's, he continued to consume alcohol on an almost daily basis.

Beginning in 1982, Barnhart made several attempts to seek rehabilitative treatment for his drinking problem. In January of 1982, he checked into Miami Valley Hospital's detoxification program, but left the program after three days. Barnhart again admitted himself to the Miami Valley detoxification program in January of 1983, shortly after Kettering, Ohio police charged him with Driving Under the Influence (DUI). Again, however, he stayed for only three days.

In July of 1983, Barnhart entered Kettering Medical Center for further treatment of his alcohol addiction. He later entered Ridgeview Institute, a chemical dependency treatment center in Georgia, for a period of three weeks. Although doctors at Ridgeview recommended that he enroll himself in a half-way house after his release, Barnhart ignored the doctors' advice.

Apparently, Barnhart successfully curbed his inebriate tendencies for some time following his release from Ridgeview Institute. However, he recommenced his abuse of alcohol in October of 1986. As a result of this relapse, he entered Sycamore Hospital in Dayton, Ohio for further treatment of his alcohol addiction.

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The record indicates that the entire Defendant law firm knew of Barnhart's abuse of alcohol as early as 1983. Several individual shareholders spoke to Barnhart about his problems with alcohol on various occasions during the early and mid 1980's. In August of 1987, the Board of Directors firmly chastised Barnhart for his continuous consumption of alcohol and his deteriorating job performance.

Despite the Board of Directors' concern with Barnhart's behavior and work capacity, the firm's president appointed Barnhart head of the firm's litigation department in the fall of 1987. Even in this role, however, Barnhart continued drinking. In fact, he appeared at the office less frequently and his workload decreased. Also, in April of 1989, the Dayton Bar Association filed an ethics complaint against him for drinking-related activities.

In August of 1989, after experiencing a short period of episodic drinking, Barnhart readmitted himself to the Kettering Medical Center. Subsequent to Barnhart's readmission to the Kettering treatment facility, the Defendant shareholders voted to suspend him from the firm and divide his share of the firm's profits from August 26 to December 31, 1989. In a letter dated August 25, 1989, the shareholders explained to Barnhart that later reinstatement with the firm was contingent upon his seeking "rehabilitative treatment appropriate to [his] chronic alcohol abuse." The letter stated:

By unanimous decision of your fellow Shareholders of Pickrel, Schaeffer & Ebeling Co., L.P.A., you are required to suspend your practice of law, take a leave of absence, and devote yourself to rehabilitative treatment appropriate to your chronic alcohol abuse. You are to keep the firm informed concerning your treatment and its progress. Your compensation of 9.5% of profits will be pro-rated to August 25, 1989. For the duration of your leave of absence in 1989, your bi-weekly draw against your share of profits will be continued, subject to offset by any disability insurance payments you may receive on policies paid for by the firm.

Paul Winterhalter, as acting Chairman of the Litigation Department, will monitor and supervise your current legal work and case load. At the end of the year, your fellow Shareholders most sincerely hope that your progress will allow you to be back where you should be, which is practicing law with Pickrel, Schaeffer & Ebeling. This decision will be made by the firm based upon our evaluation of your progress.

After receiving the letter of suspension, Barnhart admitted himself to inpatient rehabilitative treatment at Shepherd Hill Hospital. He also signed a consent form giving the firm the right to examine his medical records and monitor the course of his treatment.

Barnhart abandoned the Shepherd Hill alcohol treatment program prior to the course's termination (he stayed for twenty-five days of the twenty-eight day program), allegedly because his insurance coverage had run out. The Shepherd Hill doctors recommended that he continue treatment at its half-way house for an additional 90-180 days and attend a weekly after-care program, but Barnhart declined. Barnhart also refused to give the firm access to his Shepherd Hill medical records.

On October 5, 1989, Barnhart drafted a memorandum to the shareholders formally requesting reinstatement. The shareholders indicated to Barnhart in several response communications that a release of his Shepherd Hill medical records was a prerequisite to any consideration concerning his possible reinstatement.

Barnhart contends that he made several attempts to supply the firm with the requested medical information. He admitted at his deposition that he refused to grant the firm carte blanche review of his records per the initial agreement. However, he maintains that he suggested that a third party review the records and discuss them with the shareholders. Barnhart also asserts that he authorized release of the Shepherd Hill doctors' treatment analysis and recommendations. He contends that the shareholders rebuked both of these offerings.

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During the pendency of his request for reinstatement, individual shareholders, on a few occasions, asked Plaintiff to consider retiring. 1 Barnhart continually rejected these suggestions, telling the shareholders that he could not afford to retire.

On November 15, 1989, citing Barnhart's refusal to follow his prescribed treatment, as well as his unwillingness to honor the agreement concerning his medical records, the shareholders rejected Barnhart's request for reinstatement. Subsequent to its rejection of Barnhart's request for reinstatement, the firm, on December 12, issued letters of intent to Andrew Storar (age 37) and John Slagle (age 43) to become shareholders effective January 1, 1991. Also effective January 1, 1991, the firm removed name partner Harry Ebeling (age 59) as a shareholder participating in the firm's profits and placed him on salary.

At the December 14, 1989 shareholders' meeting, 2 the shareholders discussed Barnhart's future status with the firm. They determined that a date (unspecified) must be set for Barnhart's compliance with the Shepherd Hill recommendations. They also decided that Barnhart's failure to comply would necessitate his expulsion from the firm. Following Barnhart's repeated refusals to comply in late December, 1989, and early January, 1990, the firm terminated him at the close of a January 11, 1990 shareholders' meeting.

II.

In his complaint, Barnhart alleged that the Defendants wrongfully terminated his employment with the firm because of his age and his alleged handicap (alcoholism). Barnhart claimed a violation of ADEA, breach of contract,...

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