McIntosh v. Stanley-Bostitch, Inc.
| Decision Date | 26 January 2000 |
| Docket Number | No. C2-098-372.,C2-098-372. |
| Citation | 82 F.Supp.2d 775 |
| Parties | Rodney MCINTOSH, Plaintiff, v. STANLEY-BOSTITCH, INC., Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Patrick J. Piccininni, Brunner & Brunner, Columbus, OH, Jeffrey C. Pettys, Reed & Pettys, Columbus, OH, for plaintiff.
Gary Edward Becker, Dinsmore & Shohl, Cincinnati, OH, Michael J. Stief, III, Pittsburgh, PA, Eric T. Prozzi, Jackson, Lewis, Schnitzler & Krupman, Pittsburgh, PA, for defendant.
This matter is before the Court on the Defendant's, Stanley-Bostitch, Inc., Motion for Summary Judgment. The Plaintiff, Rodney McIntosh, has brought suit claiming that the Defendant demoted and terminated him based on his handicap and age in violation of Ohio law, Ohio Revised Code Chapter 4112. For the following reasons, Defendant's Motion is DENIED in part and GRANTED in part.
The Defendant's version of the facts differ greatly from the Plaintiffs. The uncontroverted facts are as follows. The Plaintiff was hired as a sales representative for the Defendant in 1977 and worked in the Defendant's wood fastening division from 1981 to 1994. In 1994, the Defendant announced that it was going to combine its wood fastening and industrial sales divisions. Jack Biddick, Vice President of Operations, became the head of the newly titled Direct Sales force. In August of 1994, Biddick chose the Plaintiff to be the Regional Sales Manager for the Mid-West Region of Direct Sales. Biddick was the Plaintiff's direct supervisor and supervised all ten Regional Sales Managers.
The Plaintiff suffered from a life-threatening brain hematoma and had surgery on January 28, 1996. Following his surgery, the Plaintiff took approximately six weeks off from work. On March 12, 1996, Biddick met with the Plaintiff at the Holiday Inn at the Columbus Airport to discuss his employment status. At the meeting, Biddick demoted the Plaintiff to the position of sales associate. Four days after that meeting, the Plaintiff began working as a sales associate, taking over territory previously held by Mike White. On March 27, 1997, the Plaintiff was terminated from his employment with the Defendant.
Aside from these facts, there are two distinct versions of the events that lead up to the Plaintiff's demotion and eventual termination.
The Defendant claims that in 1995, Biddick began to see problems with the Plaintiff's performance. Specifically, Biddick claims that the Plaintiff had difficulty understanding how the compensation program worked for the sales associates, had difficulty understanding his region's sales numbers, could not articulate how he was going to get his region back on target, was unable to hold his sales associates accountable for their results, did not provide leadership and could not adjust to accounts that were previously serviced by the industrial division. In addition, the Plaintiff's region was not meeting its sales and profits budget.
In 1995, during a phone conversation, Biddick claims he told the Plaintiff that if he did not improve that he would be removed from his position. Specifically, in May of 1995, Biddick gave the Plaintiff a performance evaluation in which his deficiencies were discussed. Also in 1995, Biddick talked with James McClellan, National Accounts Manager, and Rick Wontka, the head of the human resource department, about the Plaintiff's performance problems.
The Plaintiff controverts the Defendant's version of the facts by stating that Biddick did not speak to him about performance problems before he was demoted. The Defendant claimed that the Plaintiff was demoted, for one, because he could not apply his sales skills to the larger and more complex industrial customer base. However, the Plaintiff states that Biddick did not document this in his six month interim performance review, dated May 26, 1995.
The Plaintiff also denies that he failed to pursue aggressively new industrial account sales, as he successfully opened the first Redman Homes account, which was noted in his interim performance review. The Plaintiff received a favorable review in December of 1995, and in a written memo attached to the review, dated May 26, 1995, Biddick praised the Plaintiff's performance.
The Plaintiff also contends that the performance review for the 1995 sales year is a complete fabrication. Its style is completely different from the forms used by the Defendant, it was not dated; and the Plaintiff did not receive a copy. Biddick states that he created the review on his laptop computer but does not remember when or where he created it, and that after he created it, he threw it away. A copy of the review, however, was found in the Plaintiff's personnel file.
By mid-December of 1995, Biddick had determined that he was going to remove the Plaintiff from his Regional Sales Manager position and place him in a sales associate position. Biddick claims that he was also planning to offer the Plaintiff the option of resigning with a severance package. At the time, Biddick contends that he asked Jim McClellan, who was working in Rhode Island, if he would be interested in relocating to Ohio to take over the job of Regional Sales Manger. Biddick supports his story by stating that he met with Wontka to discuss his decision to remove the Plaintiff from the Regional Sales Manager position. Biddick wanted the demotion to take place immediately, but Wontka convinced him not to make the change until after the 1995 winter holidays.
Biddick did not terminate the Plaintiff during the month of January 1996, because he was busy. In mid-January, however, Biddick claims he officially offered the position to McClellan, and told him to start making arrangements to move to Ohio. McClellan put his home up for sale in Rhode Island and traveled to Columbus on January 25, 1996, to look for a new house. He put an offer on a house in Ohio, on January 28, 1996, and returned to Rhode Island on January 29, 1996.
After the Plaintiff suffered from a brain hematoma and had surgery on January 28, 1996, McClellan was temporarily placed incharge of the Plaintiff's region. Biddick provides that McClellan's new position was only temporary because he did not want to demote the Plaintiff while he was recuperating from surgery.
The Plaintiff points out that McClellan's performance review states that he was promoted to Regional Sales Manager in March of 1996. In addition, McClellan wrote on his mortgage application, dated January 28, 1996, that he was employed as a National Accounts Manager, and not as a Regional Manager.
The Plaintiff contends that the real story behind McClellan's move to Ohio was that he was going to replace White as a sales associate. In July of 1995, while the Plaintiff was a Regional Manager, White struck and killed a Columbus police officer with his car. The Plaintiff called Biddick about White's accident, told him that he wanted to terminate White, and asked Biddick if he could find a replacement. White's termination was put on hold after Wontka told Biddick and the Plaintiff to "build a book" on White to avoid employment discrimination claims based on White's age.1
In October of 1995, the Plaintiff called Biddick and asked him if he had found someone to replace White. Biddick said that the person he had in mind was interested in returning to Ohio. McClellan is from Ohio and is an Ohio State University graduate. The Plaintiff believes that McClellan was the individual that Biddick had in mind for White's position.
In addition, the Plaintiff points to several inconsistent actions taken by Biddick which indicate that Biddick had not decided to replace the Plaintiff before he went in for surgery. First, Biddick wrote the Plaintiff a letter on December 26, 1995, explaining his 1996 compensation as a Regional Sales Manager. In that letter, Biddick stated, In January of 1996, the Plaintiff received another letter regarding his 1996 compensation as Regional Sales Manager. During the month of January, Biddick sent the Plaintiff a formal compensation contract, which the Plaintiff signed and returned on January 3, 1996. Biddick also asked the Plaintiff to attend the company's Regional Sales Managers meeting in January of 1996, which was to take place in Rhode Island during the first week of February 1996. The Plaintiff purchased airline tickets and made hotel reservations to attend this meeting, at the expense of the Defendant, however the Plaintiff did not attend because of his illness.
On February 12, 1996, the Plaintiff met with his physician, Dr. Fleming. Dr. Fleming told the Plaintiff that he could return to office work, but that he should not be driving on the road. Dr. Fleming said that in about a month he would see the Plaintiff again and that, at that time, he would probably be able to return to "full work." The Plaintiff went to his doctor again on March 11, 1996.
On March 12, 1996, Biddick met with the Plaintiff at the Holiday Inn at the Columbus Airport to discuss his employment status.2 At that time, the Plaintiff claims he discussed his medical condition and his physical appearance with Biddick. The Plaintiff's head was still shaved from the surgery, he had marks on his head from three large drill holes, his scalp had noticeable stitch holes, and he had dark bags under his eyes. Plaintiff states that he told Biddick that he could start back to work with half days and then full time when his strength returned. The Plaintiff told Biddick that he could not drive for a few months because there was a possibility that he would have a seizure while driving. The Defendant counters that the Plaintiff never told Biddick or McClellan that he was placed under driving restrictions as of March...
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