Brown v. O'Reilly Auto. Stores, Inc.

• Decision Date: 10 December 2015
• Docket Number: No. 102694.,102694.
• Citation: 54 N.E.3d 638
• Parties: Timothy E. BROWN, Plaintiff–Appellant v. O'REILLY AUTOMOTIVE STORES, INC., et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

54 N.E.3d 638

Timothy E. BROWN, Plaintiff–Appellant

v.O'REILLY AUTOMOTIVE STORES, INC., et al., Defendants–Appellees.

No. 102694.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dec. 10, 2015.

Brian D. Spitz, Fred M. Bean, The Spitz Law Firm, L.L.C., Beachwood, OH, Attorneys for Appellant.

Robert E. Dezort, Fisher & Phillips, L.L.P., Broadview Heights, OH, Attorney for Appellees.

Before: CELEBREZZE, A.J., JONES, J., and KEOUGH, J.

FRANK D. CELEBREZZE, JR.

, A.J.

{¶ 1} Plaintiff-appellant, Timothy Brown (“Brown”), brings this appeal challenging the trial court's order granting summary judgment in favor of defendant-appellees, O'Reilly Automotive Stores, Inc. (“O'Reilly”) and Timothy Schlairet (“Schlairet”).

After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 2} Brown began working at O'Reilly on March 27, 2013, as the store manager of the Maple Heights Store (store 3312 in district 333). Brown was 52 years old when he was hired. Brown was hired on an at-will basis, and did not have any contract of employment for a specific period of time. Schlairet was the district manager of district 333 and Brown's direct supervisor.

{¶ 3} Brown reported that he endured harassment and discrimination based on his age. Specifically, Brown claims that he was called “gramps” by Schlairet and other employees, mocked for carrying a flip phone, and called “old man” by O'Reilly store manager Bill Shostrand. Brown alleges that Schlairet and Shostrand stated that he would be dead by the time they were taking over the company's headquarters in Missouri. Despite Brown's claims, Schlairet denied being around Brown when he was called “gramps” or being aware that he was called “gramps.” Furthermore, Schlairet denied ever calling Brown an “old man.”

{¶ 4} Brown claims that he was treated differently under the company's progressive discipline policy because of his age. Specifically, Brown argues that despite giving much more leeway to the younger store managers, Schlairet issued him a probationary letter and final written warning without ever providing any coaching, information letters, or first or second warnings.

{¶ 5} Schlairet testified during his deposition that the following events transpired. Schlairet testified that Brown received “plenty of verbal coaching” between March 27, 2013 and September of 2013. Schlairet prepared and reviewed a “game plan” performance review with Brown in September 2013. Schlairet met with Brown on September 2013, to discuss concerns regarding the store's performance and the manner in which Brown was communicating with store employees.

{¶ 6} Specifically, there were concerns that Brown was communicating in a manner that was threatening or intimidating. Brown testified during his deposition that he told his employees that he kept a universal key to any locked door in his shoe—implying that as a Tae Kwon Do black belt, he could open the door with his foot.

{¶ 7} During the September 26 meeting, Schlairet issued a “probation letter” to Brown and placed him on a final written warning. Furthermore, Schlairet identified specific tasks that Brown was supposed to complete within a two-week period, including: (1) making 20 in-person sales calls weekly and reporting back to Schlairet with a summary of those calls, (2) meeting with each store employee to discuss their opinions on improving the workplace, and (3) sending an action plan that identified areas of the store that needed improvement to Schlairet. Brown testified during his deposition that he did not complete some of these tasks within the two-week period.

{¶ 8} Schlairet and Brown met again on October 10, 2013, to review Brown's performance and follow up on some of the issues identified in the probation letter. During this meeting, Schlairet informed Brown that an employee filed a complaint regarding a comment he made to her. Brown denied making the derogatory comment during his deposition. Schlairet prepared a “store visit recap” form and reviewed the document with Brown. Brown testified during his deposition that he refused to sign the document because he disputed the following martial arts comment:

Communication: You continue to use your martial arts background as means of solving conflict. [Team members] have complained that you are unapproachable and that any conflict will result in you talking about your martial arts background.

The [team members] feel that is threatening and avoid bringing problems to you.

For the reasons discussed below, Schlairet sent Brown home at the end of this meeting.

{¶ 9} On October 14, 2013, Schlairet met with Brown in the morning and notified him that he was being demoted. Schlairet offered Brown an assistant manager's position at $9/hour. During the afternoon on the same day, Schlairet, Brown, and O'Reilly regional director Clint McFadden met to discuss issues in the probation letter and the store visit recap form. During this meeting, Brown told Schlairet and McFadden that he was not going to work for O'Reilly for $9/hour.

{¶ 10} Schlairet and Brown met again on the following morning October 15, 2013. During this meeting, Schlairet informed Brown that he and McFadden had agreed to increase his compensation to $10.10/hour, and informed Brown that he had until the end of the day to accept the new position. Brown took some time to think about the offer, and met with an attorney to discuss the situation and his options. The attorney drafted a letter that Brown brought to his meeting with Schlairet that evening. Brown stated in the letter:

Tim,

I do not agree with your decision to demote me. Although you said that I am being demoted because the payroll percentage for my store is too high, I checked the numbers and my store is in the middle of the pack. There are a number of younger guys with worse profit margins, but I am being told to either take a 60% pay cut or be fired. I refuse to take the demotion since I don't deserve it. There are other more deserving store managers, so why me? I am not resigning.

{¶ 11} Based on this refusal to accept the new position, Schlairet terminated Brown's employment with O'Reilly.

{¶ 12} Brown filed a complaint against his former employer O'Reilly and district manager Schlairet asserting claims for (1) wrongful termination based on age discrimination, in violation of R.C. 4112.14, (2)

retaliatory discharge, in violation of R.C. 4112.02, and (3) intentional infliction of emotional distress. Appellees filed a joint answer, expressly denying Brown's claims and raising various affirmative defenses. At the close of discovery, appellees moved for summary judgment, seeking to dismiss the claims raised in Brown's complaint. The trial court held a hearing on appellees' summary judgment motion, during which both parties presented oral arguments. On February 4, 2015, the trial court granted appellees' motion for summary judgment, thereby dismissing the case.

{¶ 13} Brown filed the instant appeal assigning four errors for review:

I. The trial court committed reversible error by wrongfully weighing the facts.

II. The trial court committed reversible error by determining that Brown did not satisfy his prima facie case for age discrimination.

III. The trial court committed reversible error by determining that no genuine issue of material fact remained as to whether Brown experienced retaliation based on age discrimination.

IV. The trial court committed reversible error by determining that no genuine issue of material fact remained as to whether O'Reilly Automotive Stores, Inc.'s alleged reasons for terminating Brown were a pretext for age discrimination and retaliation.

II. Law and Analysis

A. Summary Judgment Standard

{¶ 14} This court reviews the lower court's granting of summary judgment de novo. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000)

, citing Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987) ; N.E.

Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th Dist.1997) ; Dragmen v. Swagelok Co., 8th Dist. Cuyahoga No. 101584, 2014-Ohio-5345, 2014 WL 6807373, ¶ 15. An appellate court affords no deference to the trial court's ruling and conducts an independent review of the record to determine whether summary judgment is appropriate. “The reviewing court evaluates the record * * * in a light most favorable to the nonmoving party. * * * [T]he motion must be overruled if reasonable minds could find for the party opposing the motion.” Saunders v. McFaul, 71 Ohio App.3d 46, 50, 593 N.E.2d 24 (8th Dist.1990).

{¶ 15} Under Civ.R. 56

, summary judgment is appropriate when: (1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion that is adverse to the nonmoving party.

{¶ 16} The party moving for summary judgment has the initial burden to show that no genuine issue of material fact exists. Redeye v. Belohlavek, 8th Dist. Cuyahoga No. 87874, 2007-Ohio-85, 2007 WL 64754, ¶ 16

, citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978) ; Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

{¶ 17} In Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996)

, the Ohio Supreme Court modified and/or clarified the summary judgment standard as applied in Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991). Under Dresher, “the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim.” Id. at 296, 662 N.E.2d 264. The movant cannot simply rely on conclusory assertions that the nonmovant has no evidence—the movant must...