Bielert v. Northern Ohio Properties

• Decision Date: 25 November 1988
• Docket Number: No. 87-4031,87-4031
• Citation: 863 F.2d 47
• Parties: Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. David BIELERT, Plaintiff-Appellant, v. NORTHERN OHIO PROPERTIES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 47

863 F.2d 47

Unpublished Disposition

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

David BIELERT, Plaintiff-Appellant, v. NORTHERN OHIO PROPERTIES, Defendant-Appellee.

No. 87-4031.

United States Court of Appeals, Sixth Circuit.

Nov. 25, 1988.

Before KEITH, NATHANIEL R. JONES and MILBURN, Circuit Judges.

PER CURIAM.

Plaintiff-appellant David Bielert appeals from an order granting defendant-appellee Northern Ohio Properties' ("NOP") motion for summary judgment in this action alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. Sec. 701 et seq. The principal issue on appeal is whether the district court erred in concluding that Bielert had failed to provide any material evidence to support his claim that he was constructively discharged from his employment with NOP because of his religious beliefs. For the reasons that follow, we affirm.

I.

On June 8, 1984, Bielert commenced an action in the district court against NOP, claiming that his employment was terminated on account of his physical disability and/or religious beliefs. The handicap aspect of the complaint was originally premised solely upon section 503 of the Rehabilitation Act of 1973. 29 U.S.C. Sec. 703. However, on October 9, 1984, Bielert filed an amended complaint adding section 504 of the Rehabilitation Act. 29 U.S.C. Sec. 704. Pursuant to NOP's motion for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the district court dismissed Bielert's section 503 claim. By stipulation, the section 504 handicap discrimination claim was also subsequently dismissed, leaving Bielert's Title VII claim as the only issue before the district court.

Following discovery, which included depositions, interrogatories, and production of documents, NOP filed a motion for summary judgment on October 15, 1985. Both parties submitted briefs and affidavits. On October 16, 1987, the district court issued an opinion and order granting summary judgment for NOP dismissing the case. Bielert filed a timely notice of appeal on November 12, 1987.

NOP is engaged in the business of managing residential rental properties. It is a subsidiary of Zaremba Corporation, a closely-held corporation owned by various members of the Zaremba family. The immediate members of the Zaremba family subscribe to the Jehovah's Witness faith. The properties managed by NOP are owned by several different investor groups. In the greater Cleveland, Ohio, area, NOP managed fourteen separate apartment complexes, ranging in size from 36 to 1,552 rental units.

Bielert originally began working for NOP at a Chicago, Illinois, facility in 1971. He had previously worked for a predecessor of NOP. In 1973, he transferred from Chicago to Cleveland at the request of the Snavely Group, which requested that he be assigned to manage Hamilton House Apartments. The Snavely Group, a majority owner of that facility, is a partnership comprised of Thomas Snavely, John Snavely, and Tony Ranallo, all of whom are independent of the Zaremba family and all of whom subscribe to religious beliefs different from the Jehovah's Witness faith.

As a property manager for NOP, Bielert's responsibilities ranged from rent collection and housekeeping to landscaping and major renovation. He supervised maintenance workers, custodians, rental agents, housekeepers, and other assistants. He was responsible for budget preparations, maintaining the appearance of the building, resolving tenant complaints, and other similar duties.

After transferring to Cleveland, Bielert held two separate jobs for two distinct employers with the consent of NOP. While he was employed as a property manager for NOP, he was also employed by Stevens Management Company, a property management firm established by the Snavely Group. Stevens Management Company was formed to manage several of the Snavely Group's rental properties in the Cleveland area and is not connected with the Zaremba family or NOP.

In addition to Hamilton House, Bielert was assigned to manage other properties for NOP. These included Blake House, a 36-unit apartment complex adjacent to Hamilton House, and Marsol Towers, a 986-unit complex.

In September or October of 1979, Bielert learned that he had cancer. At the time, he was managing Hamilton House, Marsol Towers, and Blake House for NOP, in addition to performing his duties on behalf of Stevens Management Company. Bielert's cancer required him to be hospitalized and/or out of work from October 1980 until January 1981. During this time, he drew full salary from NOP and Stevens Management Company and attempted to manage the apartments by telephone. The job duties that he was unable to perform because of his illness were either absorbed by others at NOP or not performed.

When Bielert returned to work in January of 1981, he concedes that his illness left him in a weakened condition, and that he encountered difficulty performing some of the tasks required of a property manager. In his deposition, he conceded that he was "somewhat handicapped," and that his physician had advised him to be extremely careful while walking, particularly over ice and snow. Bielert also admitted that his illness and the restrictions imposed because of his illness impeded his ability to make the necessary inspections of the property and that he was also experiencing personal problems which interfered with his work performance.

The record reflects that Bielert's various problems began to have an adverse effect on the properties that he managed. Specifically, Stevens Management Company began to be dissatisfied with his management, as the properties were becoming dirty and in need of maintenance. On June 1, 1982, Bielert voluntarily resigned his position with Stevens Management Company.

At the same time that Bielert's performance for Stevens Management Company began to suffer, NOP also began to be dissatisfied with the quality of his work. Louis Leone, President of NOP at that time, expressed repeated dissatisfaction with the physical condition and profitability of the Marsol Towers. Tony Ranallo, one of the principals of the Snavely Group, informed Bielert that he was unhappy with the condition of Hamilton House. As a result, in October of 1981, NOP removed Marsol Towers from Bielert's management portfolio. While this left Bielert with reduced responsibility, his rate of pay did not change.

Even though his management responsibility had been reduced, NOP remained dissatisfied with Bielert's job performance. The Snavely Group principals began to notice "a gradual decline" in Hamilton House's appearance, particularly in its common areas, and that less attention was being paid to detail. In October of 1982, Tim Zaremba became president of NOP, replacing Louis Leone. Tim Zaremba noticed significant problems at Hamilton House, including dirty common areas, burned-out lights on the premises, trashy grounds, and excessive wage cost of support personnel. The record reflects that Louis Leone, who had been demoted to the position of executive vice president, was also concerned with the same problems at Hamilton House. He also observed that Bielert's budget procedure and attention to administrative details were inadequate.

In March of 1983, the majority owners of Hamilton House met with Tim Zaremba and Wally Zaremba (as secretary of NOP) to discuss the possible removal of Bielert as property manager of Hamilton House. While all were in agreement that Bielert should be replaced, they decided that NOP should not terminate his employment in deference to his physical health and years of service to NOP. Wally Zaremba suggested that NOP create a new job for Bielert, at no change in pay, wherein he would oversee the maintenance operations of all NOP properties. The Snavely Group, owners of Hamilton House, accepted the idea and offered to absorb some of Bielert's salary costs in the new position.

Following the meeting, on March 17, 1983, Tim Zaremba met with Bielert and explained that he was being removed as property manager at Hamilton House due to owner dissatisfaction. Bielert was replaced by Don Wudske, a Jehovah's Witness. Zaremba informed Bielert that the company valued his maintenance experience and explained that they intended to give Bielert a lateral transfer into a new position with no change in pay. Bielert was informed that his new job would entail on-site inspections at all NOP properties and the training of custodial maintenance personnel. Bielert and Zaremba concluded their meeting by agreeing to meet again to consider the specifics of the new position.

Bielert later met with Louis Leone and discussed the new position. Leone explained that the position was created in an effort to retain Bielert and make use of his expertise, not because NOP felt that the job was indispensable for its operations. Bielert expressed reservations about facing resentment from other property managers, and Leone offered to meet with the individuals, explain Bielert's new duties, and work to solidify Bielert's position in the company. Subsequent to this meeting, Leone published a memo to the office explaining Bielert's job change.

Bielert continued to express reservations to Leone about the...