448 F.3d 349 (6th Cir. 2006), 04-3570, Kusens v. Pascal Co., Inc.

Docket Nº:04-3570, 04-3682.
Citation:448 F.3d 349
Party Name:Gary KUSENS, Plaintiff-Appellant/Cross-Appellee, v. PASCAL COMPANY, INC., et al., Defendants-Appellees/Cross-Appellants.
Case Date:May 09, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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448 F.3d 349 (6th Cir. 2006)

Gary KUSENS, Plaintiff-Appellant/Cross-Appellee,


PASCAL COMPANY, INC., et al., Defendants-Appellees/Cross-Appellants.

Nos. 04-3570, 04-3682.

United States Court of Appeals, Sixth Circuit.

May 9, 2006

Argued: July 28, 2005

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 02-00879—John R. Adams, District Judge.

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[Copyrighted Material Omitted]

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Gregory A. Gordillo, LAW OFFICES OF GREGORY A. GORDILLO, Cleveland, Ohio, for Appellant.

Robert N. Stein, Cleveland, Ohio, for Appellees.


Gregory A. Gordillo, LAW OFFICES OF GREGORY A. GORDILLO, Cleveland, Ohio, Ann-Marie Ahern, SFMON LAW FIRM, Cleveland, Ohio, for Appellant.

Robert N. Stein, Cleveland, Ohio, for Appellees.

Before: ROGERS and SUTTON, Circuit Judges; ROSEN, District Judge[*]


ROSEN, District Judge.


Plaintiff Gary Kusens appeals from the District Court's entry of judgment as a matter of law in favor of the Defendants in this diversity action stemming from the termination of Plaintiff s employment. After a full trial on the merits, the District Court granted the defendants' motion for judgment as a matter of law on Kusens' statutory age discrimination and retaliation claims, but denied the motion with respect to Plaintiff s Ohio public policy claim. The public policy claim was sent to the jury, which returned a verdict in favor of Kusens. Defendants then renewed their motion for judgment as a matter of law on the public policy claim and the District Court granted the renewed motion

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finding that Plaintiff had failed to establish at trial that he was an at-will employee, which the court held to be an essential element of a public policy claim under Ohio law. For the reasons that follow, we AFFIRM the District Court's decisions.



Plaintiff Gary Kusens was employed by Defendant Pascal Company, Inc. ("Pascal") from 1991 until October 1, 2001, when his position was eliminated. At that time, Plaintiff was 54 years old.

Kusens began his employment with Pascal as a "Manufacturer's Sales Representative" or "Territory Representative," responsible for selling dental products and developing accounts in his territory, which included Chicago, Milwaukee and other areas in the Midwest. In 1999 Plaintiff became a "Regional Sales Manager" which entailed additional supervisory and managerial duties. His base salary increased and his commissions were determined as a fixed percentage of nationwide Pascal sales.

During the latter part of the 1990s, however, Pascal's nationwide sales began to decline. To alleviate the company's financial difficulties, Pascal obtained funding from CAPCO Financial. CAPCO, however, conditioned the funding on Pascal cutting expenses by eliminating personnel. Pascal complied with CAPCO's requirement and eliminated two of its four Regional Sales Managers — Plaintiff Kusens and Jim Thorndale.

Two of the people responsible for the elimination of Plaintiff s position were Defendant Benjamin Paschall, the owner and CEO of the company, and Defendant Janet Siwinski, Pascal's Vice President of Sales and Marketing who was also Plaintiff s direct supervisor. At the time of the termination of his employment, Plaintiff was the oldest of the four Regional Sales Managers at Pascal, and Jim Thorndale, who was terminated the same day as Plaintiff, was the second oldest. The youngest two Sales Managers were retained. Following his termination, Plaintiff filed suit contending that he was fired because of his age and not because of Pascal's financial strategy.

To prove his claims of age discrimination and wrongful discharge in violation of public policy, Plaintiff offered as evidence the testimony of a number of Pascal employees who testified that both Benjamin Paschall and Janet Siwinski harbored ageist attitudes, both in general, and with regard to Mr. Kusens, specifically.

Eugene Babos, Pascal's former president, testified that Benjamin Paschall repeatedly stated that "when you [are] over 50, you can't sell. . . you are too old to be a salesman." William "Sam" Wiebe, one of the retained Regional Sales Managers, testified that Defendant Paschall told him that he did not like keeping older people because "older people were expensive. . ., that older people kind of drove up prices and insurance."

Wiebe also testified that Janet Siwinski made a number of comments directed at Plaintiff including "Gary, you're acting old. We need more energy. We need younger people on board. We need some young guns.... We don't need old people out in sales anymore. We need to get younger," and specifically stated to Wiebe, "That Kusens is sure acting like an old man." Wiebe further testified that, after Plaintiff was terminated, and Wiebe still retained, Siwinski told him that he was "the new way of doing business; out with the old in with the new." Plaintiff Kusens also testified that Siwinski called him "old" on a number of occasions; that she would tell

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him "[t]hat I was acting old. Stop acting old. You are old."

Plaintiff also offered as evidence that age motivated the decision to terminate him, a memorandum written by Defendant Siwinski to Salli Stretti, a Sales Consultant with Holt Dental, in which Siwinski stated:

We had to release Jim and Gary October 1.... The stress was pretty darn bad, let me tell you!.... Anyway,... [w]e did find a young man for the Chicago/Milwaukee territory. Steve Zielinski, a 24-year-old pharmaceutical rep. It sure is a lot more fun to hire than fire, and I just love the energy and enthusiasm of young people who want to work instead of oldies who want a free ride....


Plaintiff originally filed his four-count complaint on March 29, 2002 in the Cuyahoga County, Ohio Court of Common Pleas alleging claims of age discrimination under Ohio Revised Code § 4112.02(A) against his former employer, Defendant Pascal Company Inc. (Count I), the company's owner, Benjamin Paschall (Count II), and his former supervisor, Janet Siwinski (Count III). Plaintiff also alleged a common law claim against Pascal for wrongful discharge in violation of Ohio public policy (Count IV). Defendants removed the case to the United States District Court for the Northern District of Ohio on the basis of diversity jurisdiction.1 Following removal, Defendant Pascal filed a Counterclaim alleging that Plaintiff had breached his employment obligations to Pascal through the fraudulent use of company funds, equipment, and resources for purposes unrelated to his employment. In response to the Counterclaim, Kusens filed a "Supplement" to his Complaint, adding a state-law retaliation claim under O.R.C. § 4112.02(1) alleging that Pascal filed the Counterclaim to retaliate against him for filing his age discrimination claims.

After the close of discovery, Defendants moved for summary judgment on all of Plaintiffs' claims. Defendants argued that Plaintiff failed to make out a prima facie claim of age discrimination or of violation of public policy under either a direct evidence approach or under the McDonnell Douglas standard. Defendants further argued that even if Plaintiff had made out a prima facie case, Defendants offered a non-discriminatory reason for their actions, i.e., economic necessity and a reduction-in-force, and Plaintiff failed to establish that the proffered reason was pretextual. With respect to the retaliation claim, Defendants argued that § 4112.02(1) applies only to adverse "employment" actions and, since Plaintiff was no longer employed by Pascal when the Counterclaim was filed, he could not make out a retaliation claim under the statute as a matter of law.

On October 31, 2003, the District Court entered an Opinion and Order denying Defendants' motion for summary judgment, finding that issues of material fact existed with respect to whether Defendants engaged in age discrimination in violation of Ohio law. Additionally, the District Court found that genuine issues of material fact existed with respect to whether Defendants' filing of a Counterclaim against Kusens constituted an unlawful retaliatory act. Accordingly, the case proceeded to trial before a jury on November 3, 2005.

After the close of proofs, Defendants made an oral motion for judgment as a matter of law ("JMOL") on all of Plaintiff s

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claims on a variety of bases. First, Defendants argued that Plaintiff had failed to present direct evidence of discrimination and had failed to meet the McDonnell Douglas test. Defendants further argued that Plaintiff had failed to show pretext. Second, Defendants argued that Pascal Company is not an "employer" covered by the Ohio Civil Rights statute because it did not have four or more employees within the State of Ohio. The court agreed with Defendants on this last point and, accordingly, granted Defendants' motion with regard to Plaintiffs claims of discrimination and retaliation under the civil rights statute.

The court then asked counsel to address the issue of whether Plaintiffs remaining claim under Ohio public policy should remain and be submitted to the jury. Defense counsel argued that the public policy claim was not argued nor even referenced in Plaintiff s opening statement or at any other time during the course of trial and, therefore, the claim should be dismissed in its entirety. Plaintiffs counsel countered that the claim should be presented to the jury because

we certainly made reference to all the pertinent facts which gave rise [to] all of the claims pled. .. including the wrongful discharge and policy. The...

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