Allen v. Ohio Dept. of Job and Family Services

• Decision Date: 12 March 2010
• Docket Number: Case No. 2:08-CV-00158.
• Citation: 697 F. Supp.2d 854
• Parties: Anthony A. ALLEN, Plaintiff, v. OHIO DEPARTMENT OF JOB AND FAMILY SERVICES, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

697 F. Supp.2d 854

Anthony A. ALLEN, Plaintiff, v. OHIO DEPARTMENT OF JOB AND FAMILY SERVICES, et al., Defendants.

Case No. 2:08-CV-00158.

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

March 12, 2010.

Renny Joe Tyson, Columbus, OH, for Plaintiff.

Nicole Sydney Moss, Megan H. Boiarsky, Ohio Attorney General's Office, Columbus, OH, for Defendants.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

Plaintiff Anthony Allen ("Plaintiff") brings this employment action against Defendant the Ohio Department of Job and Family Services ("ODJFS") and Defendant Mark Birnbrich ("Birnbrich"). Plaintiff alleges he suffered various adverse employment actions and retaliation in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e and O.R.C. § 4112.02. Plaintiff further asserts state law breach of contract, promissory estoppel, and intentional infliction of emotional distress claims.

This matter is before the Court pursuant to Defendants' Fed.R.Civ.P. 56 Motion for Summary Judgment (Doc. 30). For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion for Summary Judgment (Doc. 30).

I. FACTUAL BACKGROUND

Plaintiff Anthony A. Allen is an African-American male who was employed with Defendant ODJFS from September 13, 1998 until October 20, 2006, when Plaintiff was terminated by Defendant. Plaintiff is also a veteran of the U.S. Air Force. He has been promoted to the rank of Lieutenant Colonel, U.S. Air Force Reserves and is assigned and reports to the active duty Air Force.

A. Allen's Employment 1998 through 2002

Allen began his employment with ODJFS in September 1998 as an Administrative Assistant 4 ("AA4"). From 1998 through 2001, Allen was directly supervised by John Weber, a Bureau Chief in the Ohio Workforce Development Office ("OWD"). Weber states that he transferred Allen to work under Gerry Cain, an African-American Bureau Chief in OWD at ODJFS because of "consistently insufficient work product." According to Allen, he was transferred to Cain as a result of the Governor's Executive Order that merged the Ohio Bureau of Employment Services with the Ohio Department of Human Services.

Plaintiff Allen was directly supervised by Cain from 2001 through 2002. Cain believed that Allen was transferred because he was a disruptive, problem employee and had stopped speaking with his supervisor. While supervising Plaintiff, Cain indicated that Allen was knowledgeable, detail-oriented, and she could count on him to do a job correctly. She also noticed, however, that he would sometimes attempt to give his work to other people to complete. In addition, she noticed that Allen would sometimes forward phone calls to her instead of answering the questions himself; that he had an attitude; that he would forward emails to people who should not have been privy to them; and that he failed to timely provide her with information she had requested of him, or would altogether refuse to provide the information to her. In addition, Cain testified that on at least two separate occasions, Allen failed to attend mandatory meetings, and would sometimes "challenge" her with respect to who should perform certain daily tasks. Cain also indicated that on a couple of occasions, Allen was verbally disrespectful in his communication with her. Cain also described Allen's work as fragmented and poor and that he "always had an excuse."

In March 2002, Cain recommended and issued to Allen a 3-day suspension for insubordination. Specifically, Allen was disciplined for: a) consistently failing, even after being issued a corrective counseling, to carbon copy Cain on all correspondence; and b) for failing to complete an assignment in a timely manner and directing Cain to assign it to someone else for completion. Cain testified that Weber urged her to pursue disciplining Allen for these identified behaviors, and told her if she did not, then he might discipline her. She further testified that she "may not have" pursued actual discipline if she had not been urged by Weber.

As a result of the initiation of the pre-disciplinary hearings and investigatory interviews that ultimately resulted in the 3-day suspension, Allen lodged a complaint against Cain with the Federal Defense Logistics Agency. He also separately complained that the work he was assigned to do was not appropriately within his job duties and was, instead, a clerical function.

In May 2002, Cain complained to Bruce Madson, the then-Assistant Deputy of the OWD, that Allen had problems with female supervisors. In response, Allen requested that he be transferred to a different supervisor. Allen complained that he had "to deal with less than optimal working conditions daily" while working under Cain. (Cain Dep., Ex. L).

B. Allen's Employment Late 2002 Through 2004

In late 2002, Allen was assigned to Mark Birnbrich, Assistant Deputy Director for OWD. As an AA4, Allen was to relieve Mr. Birnbrich of his most difficult administrative duties.

Initially, Birnbrich and Allen's relationship was stable. Birnbrich sent emails to Allen, complimenting him on his hard work. In February 2003, Birnbrich gave Allen a satisfactory evaluation, which Allen viewed as "decent." Birnbrich made some very positive comments in the evaluation, although he noted that Allen needed improvement in certain areas. For the period of time covering this evaluation, Allen had been working as an AA4 on Work Force Development Area 7, where he wrote policies, reviewed financial statements and Department of Labor audits.

1. Allen's Assignment to the Ohio Tax Training Credit Program

In February 2004, Allen was assigned to one of the programs administered through OWD's Bureau of Tax Credits called The Ohio Tax Training Credit Program (hereinafter "OTTC"). The OTTC is a program whereby employers can apply on-line for tax credits for providing training to their employees. The program started in 2001, was defunded in 2002 and 2003, and was funded again in 2004. Initially, employers applied for tax credits through written applications. Credits were awarded to employers on a first come, first serve basis. This structure created an incentive for employers to submit their applications in the first few hours that the program went "live."

Before Allen was assigned to OTTC, Bureau Chief Dwight Garner was responsible for the program. Garner was a pay range 16 and was also responsible for four other ODJFS programs. In January 2004, when the program went live on-line, it crashed twice because too many employers attempted to submit applications at the same time. ODJFS Management did not blame Garner for the crashes.

After the crashes, Birnbrich and Allen were temporarily assigned to the OTTC program.¹ Birnbrich believed that Allen had demonstrated that he had the knowledge and ability to handle OTTC, as Allen had previously assisted with some prior OTTC functions before the crash. Allen disputes that he had prior experience with the OTTC program.

2. Assignment to Second Floor Cubicle

In conjunction with his assignment to OTTC, Allen was told he would be assigned a walled-off cubicle on the second floor close to the OTTC staff that he would supervise. This cubicle was occupied by Garner. On the second floor, there was an office fashioned into a conference room, and Garner was offered that office. Garner decided to stay where he was so that the conference room he was offered could continue to be used by his staff as a gathering place. Allen alleges that Garner was given a direct order to move from his cubicle to the conference room, although he did not hear the order. Garner denies being ordered to move, and Birnbrich denies that he made such an order. Allen further alleges that Birnbrich literally said the words "move . . . or else." Garner did not move, and Allen was given the largest cubicle on the second floor, near a window. Allen alleges he "complained of unfair treatment" to Birnbrich.

3. Denial of Temporary Working Level Promotion

On or about February 25, 2004, shortly after being assigned to OTTC, Allen asked for a raise. Specifically, Allen complained about not receiving proper pay for his new assignment and requested a Temporary Working Level ("TWL") promotion for work that was previously the responsibility of Garner, who was a pay range of 16. Birnbrich denied Allen's request for a TWL promotion, explaining that since the assignment to OTTC was consistent with Allen's usual AA4 duties, additional compensation was not appropriate. Allen alleges that this denial was in direct violation of Defendants' workplace rules, policies and procedures regarding employees performing work that was previously assigned to higher classified employees.

4. Denial of Position Description & Complaint of Discriminatory Treatment

In March 2004, Allen requested a position description that outlined his new duties and responsibilities and also for a salary increase. Birnbrich denied Allen's requests. Allen alleges that Birnbrich ordered Allen to do the job or face disciplinary action. Allen further alleges that, after the Birnbrich's denial of his requests, he complained to him regarding discriminatory treatment due to the pay discrepancy and failure to provide proper job description. Allen states that he then contacted ODJFS human resources for a position description, and when Birnbrich learned of this, he directed Allen to refrain from contacting human resources about the new job and ordered him and other OTTC staff not to involve Garner or Winegar regarding the OTTC program.

5. Allen's 1-day Suspension

On March 30, 2004, Winegar requested to meet with Allen and his staff to obtain information regarding problems with the OTTC program. Allen states that he declined to meet with Winegar based upon a direct order from Birnbrich not to involve Garner or Winegar in the daily operations of OTTC. Allen further states that Birnbrich had made it clear that all 2004 customer...