Yurasek v. Crossmark, Inc.

• Decision Date: 22 September 2014
• Docket Number: Case No. 1:13cv150.
• Citation: 54 F.Supp.3d 876
• Court: U.S. District Court — Southern District of Ohio
• Parties: Joseph J. YURASEK, Jr., Plaintiff, v. CROSSMARK, INC., Defendant.

54 F.Supp.3d 876

Joseph J. YURASEK, Jr., Plaintiff
v.
CROSSMARK, INC., Defendant.

Case No. 1:13cv150.

United States District Court, S.D. Ohio, Western Division.

Filed Sept. 22, 2014.

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Kelly Mulloy Myers, Randolph Harry Freking, Freking & Betz, Cincinnati, OH, for Plaintiff.

Robert Frederick Seidler, Amanda C. Couture, Ogletree Deakins Nash Smoak & Stewart, P.C., Indianapolis, IN, Thomas H. Barnard, Jr., Ogletree Deakins, Cleveland, OH, Michael H. Bell, Ogletree, Deakins, Nash, Smoak & Stewart P.C, Dallas, TX, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Doc. 23.)

SUSAN J. DLOTT, Chief Judge.

Plaintiff Joseph J. Yurasek, Jr., brings this action against his former employer, Defendant CROSSMARK, Inc. (“Crossmark”), claiming age discrimination and retaliation in connection with his allegedly wrongful termination. Yurasek brings discrimination and retaliation claims under state and federal law. (Doc. 15, Amended Complaint.) Crossmark's Motion for Summary Judgment is currently before the Court.

For the following reasons, Defendant's Motion for Summary Judgment (Doc. 23) is DENIED with respect to Plaintiff's discrimination claim and GRANTED with respect to his claim of retaliation.

I. BACKGROUND¹

Crossmark provides sales and marketing services to the grocery industry. One of its primary roles is to act as a liaison between consumer goods manufacturers (Crossmark's clients) and retailers, assisting its clients in getting their products on the retail store shelves and maximizing profitability. Account Executives (“AEs”) are Crossmark's front-line employees, responsible for interfacing with clients, analyzing their needs, providing strategic advice, and working to maximize product placement and profitability.

In the late 1990's Crossmark acquired Plaintiff's prior employer, the Pfeister Company, where Plaintiff was employed since 1979. (Yurasek Dep. 35–42, Doc. 35 at PageID 1096–98.) In May of 2003, Plaintiff—then fifty-two years old—was offered

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and accepted a lateral transfer to Crossmark's Cincinnati office to be an AE on the company's Kroger team. Plaintiff reported directly to Senior Director of Sales, Keith Johnson. Johnson, in turn, was supervised by Tom Rowe, Regional Vice President of the Midwest Division.

Johnson performed yearly evaluations of his employees, rating their performance in several categories by assigning one of the following evaluations: Unsatisfactory, Improvement Required, Consistently Meets, Consistently Exceeds, and Exceptional. For the first nine years, Plaintiff performed well at Crossmark, receiving positive ratings on his annual performance evaluations. From 2004 to 2010, for example, Johnson gave Plaintiff ratings of “Consistently Meets” or “Consistently Exceeds” expectations in every category, with an overall score of “Consistently Meets” expectations.

A. The Dallas Youth Movement

According to Plaintiff, on June 1, 2010, Johnson called a meeting with Plaintiff and other AEs to discuss reorganization in Crossmark. (Yurasek Dep. 283–84, Doc. 35 at PageID 1158.) Johnson allegedly announced a new movement out of Crossmark's Dallas office—the “Dallas youth movement”—which Johnson summarized as being “all about the younger people moving up.” (Id. ) Plaintiff claims to have asked Johnson what the movement meant for the Kroger team, to which Johnson replied that “if you're over fifty, you're hosed.” (Id., Doc. 35 at PageID 1158.) At the meeting, Johnson also allegedly told another AE, Shari Wagner, that she was safe because she was under fifty. (Id. )

Yurasek testified that this was one of multiple meetings where age discrimination was discussed. (Id. at 286–87, Doc. 15 at PageID 1159.) On June 9, 2011, Johnson called the Kroger team to a meeting to convey comments by Crossmark's Corporate Executive Vice President of Business Development, Todd Mitchell, that Crossmark's client development team was not securing new business because the AEs in the field were “too old and tired.” (Id. at 287–88, Doc. 35 at PageID 1159.)

B. Plaintiff Meets with Crossmark President, John Thompson

Starting in 2011, Crossmark President John Thompson began meeting with Crossmark employees from various levels throughout the organization regarding their opinions on Crossmark's key business initiatives. Thompson had his assistant randomly select from Crossmark's 30,000–plus employees and on June 13, 2011, after being selected, Plaintiff had a videoconference with Thompson.

Yurasek testified that he brought up concerns about age discrimination during the meeting and asked Thompson if he recognized the overemphasis the company was placing on younger people versus senior executives. (Id. at 268–69, Doc. 35 at PageID 1154.) He further testified that he complained to Thompson that Crossmark was disproportionately recognizing the accomplishments of young employees with short tenure and ignoring the accomplishments of older workers. (Id. at 270–71, Doc. 35 at PageID 1155.)

According to Plaintiff, Thompson asked him to summarize the content of the video conference. (Id. at 272, Doc. 35 at PageID 1155.) On July 28, 2011, Plaintiff sent Thompson a follow up letter purporting to summarize their discussion. (Id. )

C. Plaintiff Receives Highest Review in his June 2011 Yearly Review

On June 23, 2011, Plaintiff—then sixty-one years old—received an overall “Consistently Exceeds” rating in his yearly review,

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his best review in the seven years he had held the position. In the review, Johnson noted that Plaintiff was always willing to work with his clients, who respected and valued his ideas and opinions. Johnson further emphasized Plaintiff's excellent communication with his clients, Kroger, and his co-workers.

D. Maxi–Canada Claims Plaintiff has a “Defensive Edge”

On February 10, 2012, David Kellogg, Plaintiff's client contact at Maxi–Canada, emailed Johnson and Rowe concerning difficulties in working with Plaintiff. Kellogg claimed that Plaintiff had a “defensive edge” in an email responding to questions regarding the pricing and placement of Maxi–Canada's products in certain stores. Kellogg questioned whether Plaintiff was being proactive in achieving the goal of attaining the optimal price and placement of their products.

Johnson and Rowe discussed Kellogg's email with Plaintiff, encouraging him to consider Kellogg's preferences and to reduce his reliance on email communications so as to avoid misunderstandings regarding tone.

E. The Chobani Incident

On February 15, 2012, while meeting with a Kroger buyer, Plaintiff called A.J. Mergele, his client contact at Chobani. Plaintiff left him a voicemail message but neglected to end the call, resulting in a portion of his conversation with the Kroger buyer being recorded on Mergele's voicemail. During this conversation, Plaintiff allegedly made disparaging remarks about Mergele. Mergele contacted Johnson after listening to the voicemail and demanded that Crossmark remove Plaintiff from the Chobani account.

Although Johnson testified that he believed that the event was understandable and unlikely to be repeated (Johnson Dep. 180–81, Doc. 28 at PageID 616), he removed Plaintiff from the Chobani account after consulting with Rowe. Neither Johnson nor Rowe claim to have listened to the content of the message. (Rowe Dep. at 101, 103–104, Doc. 32 at Page ID 872, Johnson Dep. 174, Doc. 28 at PageID 614.) Plaintiff, who also has not heard the message, testified that he believed the message included a comment that “A.J. just doesn't get it,” referring to issues Plaintiff was having getting Mergele to be customer focused. (Yurasek Dep. 174–75, 185, Doc. 35 at PageID 1131.)

F. Old Orchard Voices Concerns

On February 17, 2012, Plaintiff's client contact at Old Orchard Brand, Mike Summers, expressed concerns regarding the service received from Plaintiff to Johnson, Rowe, and Tal Riffe, the former Old Orchard AE. Summers complained about Plaintiff's work on a December 2011 presentation, which Summers claimed was not ready until shortly before the presentation; Plaintiff's use of a GPS device while driving to a Kroger store; a comment about Old Orchard executives participating in wine seminars at a dinner; and two distribution issues. Despite the complaints, Summers indicated that “none of the above points are really issues that likely would have turned out differently had [Riffe] been the AE.” (Rowe Dep., Ex. 8, Doc. 32–1 at PageID 930–31.) Summers stated that he was hopeful that the situation could be remedied, but cautioned that his superiors at Old Orchard might consider removing the line from Crossmark if the situation was not remedied.

G. Plaintiff receives an Employee Counseling Form

On February 20, 2012, Johnson and Rowe issued an employee counseling form

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