Spath v. Berry Plastics Corp.

• Decision Date: 18 October 1995
• Docket Number: No. 1:93 CV 2188.,1:93 CV 2188.
• Citation: 900 F. Supp. 893
• Parties: Kimberly E. SPATH, Plaintiff, v. BERRY PLASTICS CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Ohio

900 F. Supp. 893

Kimberly E. SPATH, Plaintiff, v. BERRY PLASTICS CORPORATION, Defendant.

No. 1:93 CV 2188.

United States District Court, N.D. Ohio, Eastern Division.

October 18, 1995.

Denise J. Knecht, and Timothy S. Williams, Law Offices of Denise J. Knecht & Associates, Cleveland, OH, for plaintiff.

Robert B. Worley, Jr., Elmer E. White, III, Thomas P. Hubert, Kullman, Inman, Bee & Downing, New Orleans, LA, for defendant.

MEMORANDUM AND ORDER

OLIVER, District Judge.

I. Procedural History

Plaintiff, Kimberly E. Spath, filed claims of sex and disability discrimination in the Court of Common Pleas of Cuyahoga County under Ohio Revised Code § 4112.99 on September 23, 1993. Defendant, Berry Plastics Corporation ("Berry"), removed the case to this court on the basis of diversity jurisdiction on October 14, 1993.

Berry filed a motion for summary judgment on February 8, 1994. Berry sought to have Spath's sex discrimination claim dismissed, alleging that it was not an employer as defined by O.R.C. § 4112.01(A)(2) because it did not employ at least four persons within the State of Ohio. After receiving a right to sue letter from the Equal Employment Opportunity Commission, Spath filed a motion to amend her complaint on March 30, 1994, adding claims under 42 U.S.C. § 2000e based on sex discrimination and 42 U.S.C. §§ 12101-12117 based on disability discrimination.

On April 13, 1994, Berry filed a second motion for summary judgment. Berry sought to have the state disability discrimination claim dismissed, once again alleging that it was not an employer as defined by O.R.C. § 4112.01(A)(2) because it employs fewer than four persons within the State of Ohio. On April 15, 1994, the court submitted Berry's first and second motions for summary judgment to a Magistrate Judge for a report and recommendation. On September 30, 1994, the Magistrate Judge granted Spath's motion to amend her complaint and issued a report recommending that the court grant Berry's motions for summary judgment on the state law claims for sex and disability discrimination for the reasons advanced by Berry.

On December 21, 1994, Berry filed a third motion for summary judgment. Berry sought to have the federal sex and disability discrimination claims brought under 42 U.S.C. § 2000e and 42 U.S.C. §§ 12101-12117, respectively, dismissed on the grounds that Spath failed to establish prima facie cases of sex and disability discrimination.

The court considers herein the recommendation of the Magistrate Judge regarding the first and second motions for summary judgment. It also considers Defendant's third motion for summary judgment on the federal claims for which the court has not sought a recommendation from the Magistrate Judge.

This court originally obtained jurisdiction through Berry's removal of the case, pursuant to 28 U.S.C. § 1441, on the basis of diversity of citizenship, 28 U.S.C. § 1332. The court has jurisdiction over Spath's Title VII claims pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f)(3), and also over Spath's state law claims pursuant to the supplemental jurisdiction provided by 28 U.S.C. § 1367.

For the reasons stated hereafter, the court denies each of Defendant's motions for summary judgment.

II. Standard for Summary Judgment

Summary judgment is appropriate where the entire record "shows that there are no genuine issues as to any material facts and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Supreme Court has held that "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If a motion for summary judgment is properly supported by the movant, Rule 56(e) requires the nonmoving party "to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. at 2553 (quotation omitted).

In determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970) (citation omitted); White v. Turfway Park Racing Assn., Inc., 909 F.2d 941, 943-44 (6th Cir. 1990). A fact is material only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

III. Facts as Construed in the Light Most Favorable to Plaintiff

Spath was hired as a sales representative by Mammoth Container Corporation ("Mammoth") in February 1983. (Pl.'s Resp. to Summ.J.Mot. at Ex. 1 (Spath Aff. at ¶ 3).) Mammoth manufactured and sold plastic containers. (Pl.'s Resp. to Summ.J.Mot. at 3.) Spath's achievements and performance reviews at Mammoth demonstrated a high level of competence; she regularly received wage increases and promotions and, in both 1990 and 1991, her Midwest and West Coast regions had the highest sales in the company. (Id. at Ex. 1 (Spath Aff. at ¶¶ 4, 5).) Mammoth also granted Spath recognition for her performance. She was named Salesperson of the Year in 1986. She received the Sales Achievement Award in 1987 and she was appointed to the President's Club in 1988. (Id. at Ex. 1 (Spath Aff. at ¶ 5).)

As a regional sales manager for Mammoth, Spath's duties included supervising sales representatives nationwide and maintaining close contact with customers in the Midwest and West Coast regions. (Pl.'s Resp. to Summ.J.Mot. at 3.) Spath frequently visited with customers and developed new customer relationships. (Id. at 3.) Spath was responsible for 75% of the dairy container sales at Mammoth — more than any of her male counterparts. (Id. at 10.)

Defendant Berry officially took over Mammoth in February 1992. (Id. at Ex. 1 (Spath Aff. at ¶ 6).) Prior to the takeover, Mammoth's sales staff included two female managers, two female sales representatives, four male managers, and three male sales representatives. (Pl.'s Resp. to Summ.J.Mot. at 9.) Before merging with Mammoth, Berry had no females working in sales or marketing. (Id. at 8.)

Immediately before and after the takeover, Berry management developed a plan for restructuring Mammoth's sales and marketing operations into divisions. (Id. at 3.) In evaluating the sales and marketing staff of Mammoth, Berry management spoke only with male managers and sales representatives. (Id. at Ex. 2 (Bell Dep. at 81).) Douglas Bell, Berry's vice president of sales and marketing for dairy containers and aerosol caps, was in charge of reorganizing the merged dairy group. (Pl.'s Resp. to Summ.J.Mot at 3.) Bell failed to follow Equal Employment Opportunity regulations when interviewing Mammoth's employees. (Id. at 9, Ex. 2 (Bell Dep. at 127).)

On January 27, 1992, Berry invited Mammoth managers Jim Stratford and Dan Hughes, and sales representative Clark Wooley to visit Berry's headquarters to discuss the reorganization plan. (Pl.'s Resp. to Summ.J.Mot. at 3.) At Mammoth, Wooley and Hughes had produced lower dollar sales volume than did Spath, and she had supervised the less senior Wooley. Id. Spath was not invited to the January meeting, although she was considered to be one of the most knowledgeable managers in the dairy container business at Mammoth. (Id. at 3.) Bell acknowledges that personnel matters were discussed at this January 27th meeting. (Id. at Ex. 2 (Bell Dep. at 114, 179, 181, 184).)

There were no other organizational meetings of the Mammoth sales and marketing employees until after the takeover. (Pl.'s Resp. to Summ.J.Mot. at 4.) The next organizational meeting, held after the takeover, was attended by Hughes, Stratford, Wooley, independent contractor Ed Davy, and nonemployee, Linda Wolf. (Id.) Spath, again, was not invited to the meeting. (Id.) Bell claims that Spath was not invited because she had an ankle injury that prevented her from traveling. (Id.) He did not explain why she was not involved through a phone conference, or why she could not be kept involved and informed through fax, correspondence or phone. (Id.)

Mammoth employees were invited to Berry's corporate offices for transition meetings. During these visits Berry treated the female employees of Mammoth significantly different than he treated the male employees of Mammoth. Spath provided affidavits from other female employees to demonstrate the disparate treatment women received. They are summarized below:

1. Marie Foy worked at Mammoth for three and a half years and had been promoted to a territory manager. When Berry began interviewing Mammoth representatives, the men were interviewed first. Foy was interviewed after most of the men had been interviewed. She was flown to Evansville, Indiana, Berry's corporate headquarters. She met with Brent Beeler, a vice president in charge of the general container group.

While in Evansville, Foy received the impression that none of the men took her seriously. Beeler interviewed her very quickly, without any level of thoroughness. None of her skills were discussed in detail.

Later she was informed that a man would be taking over her New England territory. She knew that the male representative who was assigned to her territory had less experience than her because a) he had no experience in injection molding as Foy did; and b) his experience was in aerosol, not dairy containers.

Foy was offered what she believed was a "firm" offer to handle a territory in California. When she expressed interest to Beeler, she was told that someone else was found to handle the Los Angeles territory. She discovered an

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