Harold K. Baer v. the Scotts Co. and William Kelley

• Decision Date: 06 December 2001
• Docket Number: 01AP-323,01-LW-4763
• Citation: 2001 Ohio 3978
• Parties: Harold K. Baer, Plaintiff-Appellant v. The Scotts Company and William Kelley, Defendants-Appellees.
• Court: Ohio Court of Appeals

2001-Ohio-3978

Harold K. Baer, Plaintiff-Appellant v. The Scotts Company and William Kelley Defendants-Appellees.

No. 01AP-323

01-LW-4763 (10th)

Court of Appeals of Ohio, Tenth District, Franklin County.

December 6, 2001

APPEAL from the Franklin County Court of Common Pleas.

Law Offices of Russell A. Kelm, Russell A. Kelm, Joanne_Weber Detrick and Cynthia L. Dawson, for appellant.

Vorys Sater, Seymour and Pease LLP, Jonathan R. Vaughn and Michael F. O'Brien, for appellees.

OPINION

LAZARUS J.

Plaintiff-appellant, Harold K. Baer, appeals from the February 14, 2001 decision and entry of the Franklin County Court of Common Pleas granting defendants-appellees William Kelley's and The Scotts Company's ("Scotts") motion for summary judgment. For the following reasons, we affirm.

On February 16, 2000, appellant brought an action for age discrimination in violation of R.C. 4112.02(A), contending that he was constructively demoted and subsequently constructively discharged from his long-term employment by Scotts and his former supervisor, William Kelley.

Appellant was born on April 5, 1944. (Baer affidavit at paragraph 1.) He began working for Scotts in 1969 as a consultant in the Consumer Service Department. (Baer affidavit at paragraph 3.) Appellant continued working for Scotts for thirty years, until he resigned at age fifty-five. Appellant's last day of employment with Scotts was October 29, 1999. (Baer Depo., at 14.)

Appellant was promoted to Manager of Consumer Service in late 1990. (Baer affidavit at paragraph 5.) During the 1993-1994 evaluation period, appellee Bill Kelley became appellant's supervisor. Id. Appellant's supervisors rated his overall performance as a manager as competent in 1992, 1993, 1994, 1995, and 1997. Id. In 1996, appellant received an overall evaluation of "exceeds expectations." Id. at paragraph 6.

In 1994, appellant began experiencing symptoms of anxiety and, in 1996, he began experiencing symptoms of depression. (Baer Depo., at 35.) Appellant described his symptoms of depression as a "feeling of worthlessness and the inability to go forward with the day's work, to do the normal things you would around the house." Id. In October 1997, appellant experienced what he described as a panic attack on his way home from work. (Baer affidavit at paragraph 7; Baer Depo., at 38, 45-46.) Appellant attributed the onset of the panic attack to extreme pressure he was under at work due to inadequate staffing. (Baer affidavit at paragraph 7.) Appellant sought professional help from his doctor who prescribed various anti-anxiety and antidepressant medications. (Baer Depo., at 39-42.)

In 1994, appellant hired Ed Billmaier as a Call Center Supervisor in the Consumer Services Department. (Baer affidavit at 10.) Billmaier's date of birth is January 6, 1968. (Billmaier affidavit at paragraph 1.) In appellant's estimation, Billmaier was doing a very good job, "had a lot of get-up-and-go," and was a candidate for promotion into management. (Baer Depo., at 114.) In 1997, Billmaier was promoted to Manager of Consumer Services and had a direct reporting relationship with Kelley, as did appellant. (Baer affidavit at paragraph 10; Baer Depo., at 114.) In February 1998, Billmaier was transferred to the position of Assistant Product Manager in the Marketing Department. (Billmaier affidavit at paragraph 3.)

In March 1998, Kelley sent the first of six letters expressing concern about appellant's performance, specifically appellant's failure to keep track of certain projects in addition to his daily management activities. (Baer Depo., Exh. 19.) Memoranda dated April 13, 1998, June 2, 1998, June 10, 1998, June 18, 1998, June 29, 1998, and July 1, 1998, followed the March memo. (Baer Depo., Exh. 20, 21, 22, 23, 24, and 26.) Appellant indicated that the requests escalated as the department entered the busiest time of year. Appellant stated:

*** At that time, I was on overload and attempting to accomplish daily tasks. I was working extended hours and still not able to accomplish all the tasks which I established as goals for myself. I had expressed my concerns numerous times to Kelley that the department was understaffed and that I was extremely busy in attempting to accomplish these necessary daily tasks. I attempted to timely respond to Kelley's tasks. However, even when I completed a task on Kelley's list, it was not dropped from the list or it appeared in a later memo as a variation. It was apparent from the tone of the memoranda and our meetings that the successful completion of the tasks was not the purpose of Kelley's interest in my position. [Baer affidavit at paragraph 13.]

Appellant gave a somewhat different version of these events in his deposition:

Q. Did you have any idea why [Kelley] was dissatisfied with your performance?

A. Yes.

Q. What was your idea?

A. That things weren't being done on time.

Q. Did you think his evaluation of your performance at that point was fair and reasonable?

A. Given the overload that I had altogether, no.

Q. Did you ever discuss the fact with Mr. Kelley, in fact, you thought you were being overloaded?

A. No.

Q. Why not?

A. I didn't think there was any chance of change of opinion. There was a time when the department was not quite the same as it was, and I'm not saying it should ever go back to the way it was. It's an efficient department. But a number of times whether I was on probation, whether I was dealing with Bill Kelley about issues and lateness and what have you and where's the claims, in some cases when dealing with my last supervisor and Ed, the senior manager at that time in '99, it was simply, "everybody's busy," as opposed to let's pick up. This person needs help right now. He's no longer the manager of department. We would pick up and do whatever we needed because of the cohesiveness of that department. That never happened.

Q. That's a time period after Exhibit 20. [The April 13, 1998 performance memo.]

A. That's true.

Q. Why didn't you feel you could say something to Mr. Kelley as of April 13, 1998?

A. I didn't feel it would do any good. I didn't think it was a conversation issue that was %

Q. Why did you have that perception, that it would do no good?

A. He calls the shots; that's all.

Q. Can you think of other occasions prior to that time, Mr. Baer, where you did go to Mr. Kelley to express some concern about things that were happening in the department, staffing issues, management styles, issues of that sort.

A. There were times I did.

Q. And in any of those occasions did Mr. Kelley respond with an effort to try to address your concerns?

A. Yes.

Q. Tell me why then in April of 1998 you thought that wouldn't happen.

A. Because bringing to his attention something we might do like, we need to make a mail clerk full time rather than part time, didn't get any response or wasn't the right timing or something, and then it did happen. That's different than talking about my performance. That's a project, and my issues were overload, regardless of whether I was the manager or the senior specialist. That is exactly how I saw it.

Q. Okay. Did you make any effort to talk to anyone above Mr. Kelley in the chain of command concerning your perception of overload?

A. No. No. I would not have gone to HR. I would not have gone to his superior. There was no way I would do that.

Q. You didn't go to anybody, did you?

A. No. [Baer Depo., at 134-136.]

Appellant had difficulty responding to Kelley's requests. Appellant testified:

A. So he wrote me a memo or two reminding me I had to come up with the answers to the questions at hand and what the status was with a number of projects, and I didn't respond to those. I was drug out at that point. I mean, I got to the place where I didn't care anymore. You know, it was not even tell him, "I can't get to these things."

Q. You just didn't respond?

A. Right. If I responded, it would be to try to get a delay, but basically I just couldn't do those things that I had agreed to do because that's the way I am. *** [Baer Depo., at 121.]

In June 1998, Kelley requested that a Senior Consultant position be added to Consumer Services. The Senior Consultant would focus on safety issues and difficult consumer complaints, and was essentially appellant's same job without the managerial responsibilities. (Baer affidavit at paragraph 14; Baer Depo., at 122.) In July, Kelley gave appellant the option of remaining as a manager and going on a ninety-day performance improvement plan, or accepting a demotion to the position of Senior Consultant with no reduction in pay. (Baer affidavit at paragraph 16; Baer Depo., at 125.)

Appellant accepted the demotion believing he had no choice in the matter because Kelley did not offer additional personnel to assist with projects or appellant's overload. (Baer affidavit at paragraph 17.) Appellant believed that if he continued as a manager without additional personnel, he would be unable to complete the additional tasks assigned by Kelley and would more than likely lose his job. Id. Nevertheless, appellant acknowledged that no one pressured him to choose the demotion option.

Q. Did Mr. Kelley or anyone else in the organization pressure you to choose either option?

A. There was no pressure, except he had given me what looked like the next best thing to staying where I was, so I took that. I mean, my attitude during this was, you know, who wants to be in such a situation? Nobody. But also I was looking forward to concentrating on just those things knowing full well my management could have been a lot better, you know, but everything was suffering at that point. [Baer Depo., at 124.]

At the time appellant's demotion became effective, Billmaier returned to the Consumer Service Department as Senior Manager. (Baer...