Hiller v. Aver Info.
| Decision Date | 23 August 2021 |
| Docket Number | 5:20-cv-2244 |
| Parties | MICHAEL HILLER, PLAINTIFF, v. AVER INFORMATION, INC. et al., DEFENDANTS. |
| Court | U.S. District Court — Northern District of Ohio |
Now before the Court is defendants' motion to dismiss. (Doc No. 9 (Motion); Doc. No. 91 (Memorandum in Support).) By this motion, defendants seek: (1) the dismissal of plaintiff's state law claim for wrongful discharge in violation of public policy for failure to state a claim, (2) the dismissal of plaintiff's request for non-economic and punitive damages, and (3) the dismissal of the individually named defendants for lack of personal jurisdiction. Plaintiff opposes the motion (Doc. No. 12), and defendants have filed a reply. (Doc. No. 13.) For the reasons that follow, the motion is granted.
Defendant Aver Information, Inc. (“Aver”) is a California company that “markets and sells audio visual equipment primarily for use in professional and education settings.” (Doc. No. 1 (Complaint) ¶¶ 1, 13.) Plaintiff Michael Hiller (“Hiller”), an Ohio resident, worked for Aver from 2009 until 2016. (Id. ¶¶ 1, 14.) In Spring 2019, Hiller became aware of an opening for a regional sales manager at Aver. (Id. ¶ 14.) He contacted Aver's President Arthur Pait, to inquire about the position. Pait referred Hiller to Russell Barefield, Aver's then-Director of Sales for K-12, who eventually re-hired Hiller. (Id. ¶ 15.) Hiller was assigned the title of Channel Account Manager, Higher Education, and was responsible for selling Aver's products designed for school children in grades K-12 (kindergarten through twelfth grade). (Id. ¶ 16.) Hiller alleges that, unbeknownst to him, Pait “viewed [Hiller] as a stop gap who could fill a sales position and bring stability to the role until Aver located a younger candidate.” (Id. ¶ 15.)
According to the complaint, Hiller reported directly to defendant Mike Montemayor (“Montemayor”), Aver's National Sales Director and a resident of Texas. (Id. ¶ 4.) Defendant Ted Pepping (“Pepping”), a resident of California, was the “Head of Sales and Marketing” for the K-12 and Pro-AV divisions, and had “indirect supervisory authority over [Hiller.]” (Id. ¶ 5.) Defendant Jennifer Lopez (“Lopez”), also a resident of California, served as Human Resources Manager for Aver. (Id. ¶ 6, collectively Montemayor, Pepping, and Lopez are referred to as “Individual Defendants”.)
During this second stint with Aver, Hiller submits that his performance “steadily improved as he learned the territory and established relationships with Aver's clients.” (Id. ¶ 1; see also id. ¶¶ 23-25.) The company continued to add states to Hiller's sales territory, and, by October 2019, Hiller's territory covered 21 states, including Ohio, Michigan, and Illinois. (Id. ¶¶ 17, 20-22.) Notwithstanding Hiller's positive performance, Montemayor and Pait “repeatedly inquired of [Hiller] as to” his plans for retirement. (Id. ¶ 26.)
In March 2020, Individual Defendants advised Hiller that his employment with Aver was being terminated. Hiller claims that he was not provided a “substantive explanation” for his termination. (Id. ¶ 27.) He was replaced by Brett Gorski, “a substantially younger individual” who had been previously terminated from Aver for misuse of a corporate credit card. (Id. ¶ 28.) The hiring of Gorski was consistent with Pait's “directive” that Hiller be replaced with a younger person, as well as Pait's desire to hire younger individuals. (Id. ¶¶ 29-30.) Pait had repeatedly expressed this desire in emails he sent to Aver's management (including Individual Defendants), comments he made to “senior management” about bringing in a “younger breed” of employees, and inquiries he made regarding the age of the candidates Aver was considering for positions within the company. (Id. ¶¶ 31-33.)
On October 5, 2020, Hiller filed the present action against Aver and Individual Defendants.[1] In Count One of his complaint, Hiller raises a claim of age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. (Doc. No. 1 at 7-8[2].)[3] Count Two purports to set forth a state law claim for wrongful discharge in violation of Ohio's public policy against age discrimination. (Id. at 9-10.)
In their motion to dismiss, defendants posit that “Ohio state law does not recognize a wrongful discharge in violation of public policy tort based on alleged age discrimination.” (Doc. No. 9 at 1.) They further argue that “non-economic and punitive damages are not available remedies under the ADEA.” (Id. at 2.) Finally, they contend that Individual Defendants lack sufficient contacts with Ohio to have “purposefully availed themselves of the benefits and protections of Ohio law.” (Id.) Defendants request dismissal of Count Two and the prayer for non-economic and punitive damages under Rule 12(b)(6) of the Federal Rules of Civil Procedure. They also seek dismissal of the Individual Defendants under Rule 12(b)(2).
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the pleading. Davis H. Elliot Co., Inc. v. Caribbean Util. Co., Ltd., 513 F.2d 1176, 1182 (6th Cir. 1975). All allegations of fact by the non-moving party are accepted as true and construed in the light most favorable to that party. See Grindstaff, 133 F.3d 416, 421 (6th Cir. 1998) (citing Meador v. Cabinet for Human Res., 902 F.2d 474, 475 (6th Cir. 1990)). The Court, however, “need not accept as true legal conclusions or unwarranted factual inferences.” Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999) (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). Nor is the Court required to accept as true complaint allegations that are contradicted by public records and other evidentiary materials of which the Court may take judicial notice. See Moody v. CitiMortgage, Inc., 32 F.Supp.3d 869, 874-75 (W.D. Mich. 2014) (“court may disregard allegations in the complaint if contradicted by facts established by exhibits attached to the complaint[]”) (internal quotation marks and citation omitted); see also Williams v. CitiMortgage, Inc., 498 Fed.Appx. 532, 536 (6th Cir. 2012) () (internal quotation marks and citation omitted).
The sufficiency of the pleading is tested against the notice pleading requirements of Fed.R.Civ.P. 8(a)(2), which provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Although this standard is liberal, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). If the plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570.
In Count Two, Hiller avers that defendants' actions in allegedly discriminating against him on the basis of his age “implicate several well-recognized public policies in the State of Ohio, including, but not limited to, the public policy reflected in Ohio's anti-discrimination statute, [Ohio Rev. Code] 4112.01 et seq.” (Doc. No. 1 ¶ 47, citing Collins v. Rizkana, 652 N.E.2d 653 (Ohio 1995).) In support of this claim, Hiller cites to his termination, the transferring of his responsibilities to a substantially younger individual, and the different treatment he contends he received on account of his age. (Id. ¶ 48.)
Under Ohio law, a claim of wrongful termination in violation of public policy requires a plaintiff to show that:
(1) a “clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law”; (2) in general, “dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy”; (3) the “plaintiff's dismissal was motivated by conducted related to the public policy”; and (4) the employer did not have a justifiable “legitimate business justification for the dismissal.”
Carrasco v. NOAMTC Inc., 124 Fed.Appx. 297, 304 (6th Cir. 2004) (quoting Wiles v. Medina Auto Parts, 773 N.E.2d 526, 529-30 (Ohio 2002)). With regard to the second element-the “jeopardy” element-a plaintiff must also show that “there is no other remedy available.” Day v. Nat'l Elec. Contractors Ass'n, 82 F.Supp.3d 704, 708 (S.D. Ohio 2014).
In Leininger v. Pioneer Nat'l Latex, 875 N.E.2d 36 (Ohio 2007), the Ohio Supreme Court evaluated the age-discrimination statutory remedies available under Ohio law and explicitly rejected a cause of action for wrongful discharge when it is based upon age discrimination. In so ruling, it concluded that ...
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