Ploscowe v. Kadant

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0021n.06
Filed: January 6, 2005
No. 03-4341
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT PLOSCOWE, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
KADANT, ) SOUTHERN DISTRICT OF OHIO
)
Defendant-Appellee, )
)
THERMO ELECTRON CORPORATION, )
)
Defendant-Appellee, )
)
THERMO ELECTRON CORPORATION, )
)
Defendant-Appellee, )
)
KADANT BLACK CLAWSON, INC. )
)
Defendant-Appellee
Before: GIBBONS and ROGERS, Circuit Judges; BUNNING, District Judge.*
ROGERS, Circuit Judge. Plaintiff Robert Ploscowe appeals the grant of summary
judgment entered in favor of his previous employer, defendant Kadant Black Clawson (“KBC”).
*
The Honorable David L. Bunning, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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Ploscowe alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
for religious discrimination and retaliation, and the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq., for age discrimination. Ploscowe also sets forth parallel claims
under Ohio statutory and common law. Because Ploscowe has failed to establish a prima facie case
of religious discrimination and retaliation, and because Ploscowe has failed to establish that KBC’s
proffered reasons for his termination were pretextual, we affirm the grant of summary judgment.
I. Background
On May 15, 1995, Ploscowe was hired by KBC,1 an Ohio manufacturer of equipment used
in the paper-making industry, as a buyer/planner at its Middletown, Ohio plant. Ploscowe was 49
years old at the time he was hired. Ploscowe’s duties as a buyer/planner included purchasing
materials and dealing with vendors. Ploscowe was responsible for purchasing a range of items,
including whole machines, spare parts, and general office supplies, for the Middletown, Ohio and
Rayville, Louisiana plants.
In October of 2000, Max Caldwell, then president of KBC, made the decision to decentralize
the purchasing function of the business and to transfer a portion of the purchasing responsibilities
from the Middletown plant to KBC’s Alabama facility. The result of this decision was the
1
Ploscowe was actually hired by, and initially worked for, KBC’s predecessor the Black
Clawson Company and, later, Thermo Black Clawson, Inc. However, because the complex history
of the corporations does not affect the claims at issue, this opinion, for the sake of simplicity, will
refer to the plaintiff’s employer as KBC.
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elimination of one buyer/planner position in the Middletown plant. Ploscowe was chosen for
termination, allegedly “because of his poor attitude, abrasiveness, and failure to provide timely
service to his internal customers” and because his job functions could be easily learned by another
employee.
Ploscowe was notified of his anticipated layoff on November 3, 2000, and given a choice of
five weeks’ severance pay or continued employment for up to sixty days with an opportunity to
conduct a job search. Ploscowe chose to continue his employment during the sixty day period.
Three days later, on November 6, 2000, Ploscowe gave Ken Stiers, the Director of Human
Resources, a memo alleging that he was selected for termination because of his age and religion.
In mid-November, Ploscowe’s brother, a labor and employment attorney, sent a letter to KBC
alleging employment discrimination and informing KBC that Ploscowe had met with the Equal
Employment Opportunity Commission (“EEOC”). On November 27, 2000, Max Caldwell resigned
as president of KBC. He was replaced by Ed Healy, who decided not to go forward with the plan
to decentralize purchasing. The decision to maintain a centralized purchasing function resulted in
Ploscowe’s retaining his position.
In the next one to two months, Ploscowe’s immediate supervisor, Terry Cadle, and another
buyer/planner, Tim Cook, resigned. Cadle was not replaced—a level of management was simply
eliminated—and Ploscowe, along with all the other buyer/planners, began reporting to Steve
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Arbogast. As a result of the lost positions, and in response to an alleged spike in business, Lee
Harper, age 39,2 was hired on March 12, 2001.
KBC states that in early 2001 there was a dramatic reduction in the demand for papermaking
equipment.3 JA 59. Thus, in April of 2001, one month after Harper was hired, the president of KBC
determined that a reduction-in-force (“RIF”) would be required. Five positions would be eliminated
in May of 2001,4 including three positions in the purchasing group. At the time, the purchasing
group consisted of six employees—Ploscowe, Gary Saylor, Don Amburgey, Jim Carr, Tom Brunner,
and Lee Harper. The age and seniority of the six buyer/planners working for KBC in April of 2001
are as follows:
1. Don Amburgey, age 64, date of hire 03/17/1986
2. Bob Ploscowe, age 55, date of hire 05/15/1995
2
At various points in the parties’ briefs, Harper is listed as 40 years old at the time he was
hired. There is a chart in the record stating that Harper was age 40 at the time of hire; however,
according to the same chart, Harper was hired on 03-12-01 and his birthday is 10-24-61; thus
making him 39 years old at the time he was hired by KBC. JA 366-67.
3
Ploscowe points to the apparent inconsistency in the testimony of KBC officials, who stated
(1) that Lee Harper was hired because of a spike in business and (2) that a severe economic
downturn necessitated an RIF approximately one month later. KBC argues that these statements are
not inconsistent because demand in one area of business, that of spare parts, was increasing and
there was promise that new contracts would materialize. However, KBC alleges, these contracts
did not come through, and the business “continued to spiral downward.”
4
Eleven additional employees were terminated in August 2001, and, during the course of
2001-2003, the total workforce of KBC was reduced by forty percent.
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3. Gary Saylor, age 53, date of hire 06/1/1988
4. Tim Carr, age 50, date of hire 03/31/1986
5. Tom Brunner, age 45, date of hire 11/26/1979
6. Lee Harper, age 39, date of hire 03/12/2001
Of the six employees in the purchasing department, the three oldest members—Ploscowe,
Amburgey, and Saylor—were selected for termination.
On November, 27, 2001, Ploscowe filed suit against KBC, alleging that his termination was
motivated by religious and age discrimination and was in retaliation for his prior reports of
discrimination. KBC claims that Ploscowe was selected for termination because of his abrasive
attitude and history of poor performance.
The district court held that Ploscowe had failed to establish a prima facie case of religious
discrimination and retaliation. It assumed that Ploscowe could establish a prima facie case of age
discrimination; however, it found that Ploscowe had failed to establish that KBC’s reasons for
Ploscowe’s termination were pretextual. The district court thus granted KBC’s motion for summary
judgment on all counts.
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II. Analysis
Ploscowe appeals the district court’s grant of summary judgment on his claims of religious
discrimination, age discrimination, and retaliation, brought under federal law, and his parallel claims
brought under Ohio statutory and common law. However, because Ploscowe has failed to establish
a prima facie case of religious discrimination and retaliation, and because he has failed to establish
that KBC’s proffered reasons for his termination were pretextual, the grant of summary judgment
was proper as to all counts.
The district court’s grant of summary judgment is reviewed de novo. Valentine-Johnson v.
Roche, 386 F.3d 800, 807 (6th Cir. 2004). “Summary judgment is proper where there exists no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In
considering a motion for summary judgment, the district court must construe all reasonable
inferences in favor of the nonmoving party.” Id. (internal citations omitted). Ultimately, the court
must decide “whether the evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc. 477 U.S. 242, 251-252 (1986).
A. Religious Discrimination
Ploscowe alleges that his termination was motivated by religious discrimination, in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Because Ploscowe has failed
to establish a prima facie case of religious discrimination, we affirm the grant of summary judgment
on this count.
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Ploscowe claims that, as the only Jewish employee of KBC, he was subjected to negative
comments about his religion and was otherwise stigmatized for his religious beliefs. Ploscowe cites
several incidents as evidence of the discrimination he experienced. First, Ploscowe claims that KBC
had a practice of placing Christmas decorations in the lobby of the Middletown facility. When
Ploscowe asked for the opportunity to decorate for Hanukkah, he alleges that Ken Stiers, the
Director of Human Resources, replied “‘If you want Hanukkah decorations, you go out and buy
them yourself and put them up yourself.’” Next, Ploscowe alleges that Stiers and other employees
told Jewish jokes in his presence and that other employees treated him in a “standoffish” manner.
On one occasion, a co-worker told Ploscowe something to the effect of “Your people killed my
God.” In addition, shortly after beginning to work for KBC, Tom Graziano, one of Ploscowe’s
supervisors, displayed a Nazi flag in his office. Ploscowe claims that when he complained to Stiers
about the presence of the flag, Stiers responded by saying, “Oh, Bob, that’s Tom. Thicken up your
skin.” Finally, Ploscowe claims that in early 2001, Vice-President of Operations Steve Weatherly,
who was in a direct line of management over Ploscowe, handed out crosses to various employees
in his department, but did not give one to him. Ploscowe claims that these facts, both individually
and cumulatively, led to his belief that he was being “singled out” because of his Jewish faith.
To survive a motion for summary judgment based on a claim of discrimination under Title
VII, a plaintiff must present either direct evidence of discrimination or circumstantial evidence from
which a jury could infer discrimination. In the present case, Ploscowe has presented no evidence
of direct discrimination. Therefore, his claim is properly analyzed using the burden-shifting
framework set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973). To establish a prima
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facie case of discrimination under McDonnell Douglas, the plaintiff must show the following: (1)
that he was a member of a protected class, (2) that he was subjected to an adverse employment
action, (3) that he was qualified for the position, and (4) that he was replaced by a worker outside
of the protected class. Id. at 802. In an RIF situation, however, the plaintiff need not prove the
fourth element because, in such circumstances, the plaintiff will necessarily not be replaced.
Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 371 (6th Cir. 1999) (internal citations omitted).
“Instead, the plaintiff must present ‘additional direct, circumstantial, or statistical evidence tending
to indicate that the employer singled out [the plaintiff] for discharge for impermissible reasons.’”
Id. (internal citations omitted). If a prima facie case is established, then the burden shifts to the
defendant to demonstrate a non-discriminatory reason for the discharge, which, in this case “will
necessarily be the alleged reduction in force. The burden then returns to he plaintiff to demonstrate
that the defendant’s proffered reason is pretextual.” Id. (internal citations omitted).
In the present case, the parties appear to agree that Ploscowe has demonstrated the first three
elements of a prima facie case—that he was Jewish, that he was fired, and that he was qualified for
the position. However, KBC urges that Ploscowe has not demonstrated the fourth element of a
prima facie case because he has not produced additional direct, circumstantial, or statistical evidence
demonstrating that Ploscowe’s Jewish faith was a motivating factor in his termination.
Although Ploscowe describes all of the various incidents as acts of religious discrimination,
none of the incidents involved an adverse employment action and, thus, they cannot form the basis
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of his religious discrimination claim.5 However, Ploscowe may rely on the incidents as background
evidence used to support his claim of religious discrimination based upon his discharge, the only
incident amounting to an adverse employment action.6
The incidents, even viewed in the light most favorable to Ploscowe, do not support an
inference that his discharge was motivated by religion. First, Ploscowe alleges that his then-
supervisor, Tom Graziano, brought a Nazi flag to the workplace. However, it does not appear that
the presence of the flag was motivated by religious animosity against the Jewish faith. Rather, it
appears that Gaziano was a collector of war memorabilia who brought the flag to work for purposes
of obtaining help in getting it framed. In addition, after Ploscowe complained about the flag, KBC
took appropriate action by discussing the situation with Graziano, who took the flag home that day.
The incident where a coworker told Ploscowe that “your people killed my God” also fails
to show that Ploscowe was fired for religious reasons. The comment was made by a co-worker who
had no supervisory power over Ploscowe and who played no part in the decision to terminate his
employment. Under such circumstances, no inference of age discrimination can be drawn. See
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 354 (6th Cir. 1998) (stating that “[a]n
5
Ploscowe’s complaint did not set forth a hostile working environment claim.
6
The incidents involving the Nazi flag and the comment “your people killed my God”
occurred, at the latest, in 1999. The plaintiff did not file his complaint with the EEOC until 2001.
Under Title VII, a plaintiff has up to 180 days, or in a deferral state such as Ohio, up to 300 days,
to file a complaint after the allegedly unlawful employment practice has occurred. 42 U.S.C. §
2000e-5(e)(1). However, despite the fact that the incidents involving the Nazi flag and the comment
that “your people killed my God” occurred outside this the 300 day time limitation, they may still
be considered “as background evidence in support of a timely claim.” Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 113 (2002).
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isolated discriminatory remark made by one with no managerial authority over the challenged
personnel decisions is not considered indicative of age discrimination”). In addition, Ploscowe
never complained about the comment to anyone at KBC. Because Ploscowe never complained and
because the co-worker in question played no part in the decision to terminate him, this incident does
not create an inference that religious discrimination motivated KBC to terminate Ploscowe.
Ploscowe’s allegation that he was subjected to numerous Jewish jokes throughout his
employment is also insufficient to demonstrate religious discrimination. Ploscowe stated that
numerous people at KBC told Jewish jokes; however, the only person he could name was Ken Stiers,
the director of Human Resources. Significantly, while Stiers did inform Ploscowe of his termination
and explain possible benefits, Stiers did not participate in the decision to terminate Ploscowe.
Ploscowe’s next allegation is that he was treated in a generally “standoffish” manner by
many KBC employees. Ploscowe, however, does not elaborate on what made him feel this way, or
whether he felt that he was treated in a “standoffish” manner by anyone responsible for the decision
to terminate his employment. In addition, Ploscowe points to no evidence that would support an
inference that the “standoffish” treatment by his co-workers was a result of his religion and not of
some other factor, such as general personality disagreements. Thus, the fact that Ploscowe was
treated in a “standoffish” manner does not support his claim of religious discrimination.
Ploscowe further alleges that when he did complain about religious discrimination, he
received little support from KBC management. He appears to primarily base this claim upon his
assertion that, when he complained to Stiers about the Nazi flag incident, Stiers responded by
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stating, “[o]h, Bob, that’s Tom. Thicken up your skin,” and that he was once told to “watch [his]
language” after saying the word “dammit.” Ploscowe argues that these incidents demonstrate that
he was “pooh-poohed” when he complained about situations that offended his religious beliefs,
while he was reprimanded for engaging in conduct that offended others’ beliefs. The evidence,
however, indicates that, after Stiers complained about the Nazi flag, KBC management discussed
the incident with Graziano, and that the flag was taken home shortly thereafter. The evidence does
not support Ploscowe’s claim that he was not taken seriously when he complained of discrimination.
Finally, the incident involving Steve Weatherly’s handing out of crosses to various
employees at KBC is not evidence of religious discrimination. The actions of Weatherly, who has
subsequently left his employment with KBC to attend Asbury Theological Seminary, were clearly
motivated by Weatherly’s religious faith; however, this fact alone is insufficient to support an
inference that Weatherly held any ill-will towards Ploscowe because of Ploscowe’s religion or that
any such ill-will prompted his firing.
For the foregoing reasons, plaintiff has failed to establish a prima facie case of religious
discrimination. Thus, the grant of summary judgment was proper as to that claim.
B. Retaliation
Ploscowe also alleges that his termination was in retaliation for making prior complaints of
discrimination. Because Ploscowe has failed to establish a prima facie case of retaliation, the district
court properly granted summary judgment on this count.
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Ploscowe made a complaint of discrimination to KBC officials after he was initially chosen
for termination in November, 2000. However, the plan to decentralize the department was
abandoned, and the plaintiff was not terminated at that time. On March 16, 2001, Arbogast,
Ploscowe’s immediate supervisor, came to see Ploscowe about “a recent attitude problem.” In
response, Ploscowe told Arbogast about his discrimination claims. Ploscowe claims that this was
the first time that Arbogast learned of his allegations of discrimination. The plaintiff was terminated
approximately two months later. It is this sequence of events upon which Ploscowe relies to support
his retaliation claim.
To establish a prima facie case of retaliation, the plaintiff must establish “that: (1) he
engaged in an activity protected by Title VII; (2) the defendant knew he engaged in this protected
activity; (3) thereafter, the defendant took an employment action adverse to him; and (4) there was
a causal connection between the protected activity and the adverse employment action.” Smith v.
City of Salem, 378 F.3d 566, 570 (6th Cir. 2004) (citation omitted). The parties agree that Ploscowe
has established the first three elements. Thus, the only issue on review is whether there was a causal
connection between the protected activity and the adverse employment action.
To establish a causal connection, Ploscowe must produce sufficient evidence from which an
inference could be drawn that the adverse action would not have been taken had he not engaged in
protected activity. Jackson v. RKO Bottlers, 743 F.2d 370, 377 (6th Cir. 1984). The protected
activity upon which plaintiff relies to establish his claim of retaliation consists of complaints of
discrimination he made to KBC, beginning in November of 2000. KBC notes, however, that these
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complaints were made after, and in response to, the fact that he was chosen as the sole employee to
be terminated as a result of the decision to decentralize the purchasing department. However, before
he ever complained of any type of discrimination, Ploscowe was chosen for termination when a
business decision required the elimination of one buyer position. It is not surprising that Ploscowe
was again chosen for termination when an RIF necessitated laying off half of the purchasing
department six months later. In addition, it does not appear that Ploscowe’s performance or attitude
changed significantly over the period between his initial selection for termination and the subsequent
decision to terminate the plaintiff. As a result, Ploscowe has failed to demonstrate that KBC would
not have terminated him if he had not made the reports of discrimination. Thus, he has failed to
establish a prima facie case of retaliation, and the grant of summary judgment was proper.
C. Age Discrimination
Ploscowe also claims that his termination was motivated by age discrimination. Specifically,
Ploscowe claims that his termination demonstrates that he was discriminated against because he was
the second oldest person laid off in the purchasing department and because all of the individuals who
were laid off were over 50 years old. While we assume arguendo that Ploscowe has established a
prima facie case of age discrimination, the grant of summary judgment was proper because he has
failed to show that the legitimate reasons given by KBC for his termination were pretextual.
In analyzing claims under the Age Discrimination in Employment Act (ADEA), the court
uses the same burden shifting framework used to analyze a claim brought under Title VII.
Godfredson, 173 F.3d at 371. To establish a prima facie case of age discrimination under the
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ADEA, the plaintiff must show (1) that he was over 40; (2) that he was qualified for the job he held;
(3) that he suffered an adverse employment action; and, in the case of an RIF, (4) additional direct
or circumstantial evidence which demonstrates that the employer was motivated by Ploscowe’s age
in making its decision. Id. The parties do not dispute that Ploscowe has established the first three
requirements. The only issue remaining is whether additional direct or circumstantial evidence
exists which demonstrates that Ploscowe’s termination was motivated by his age. Because Ploscowe
has put forth evidence indicating that the three oldest members of the purchasing department were
chosen for termination and because Lee Harper, a younger employee who began working for KBC
only a few months before the RIF, was retained over Ploscowe, we will assume, without deciding,
that Ploscowe has established a prima facie case of age discrimination.
The burden then shifts to KBC to provide a legitimate non-discriminatory reason for
Ploscowe’s termination. KBC has met this burden by alleging that the RIF resulted in the need to
lay employees off generally and that the plaintiff’s poor performance and abrasive attitude were the
motivating factors behind selecting him specifically. Therefore, the burden shifts back to Ploscowe
to show that the reasons articulated by KBC are pretextual.
The plaintiff may prove pretext in one of three ways: (1) by showing that the defendant’s
reasons had no basis in fact; (2) by showing that the proffered reasons did not actually motivate the
defendant; or (3) by showing that the proffered reasons were not sufficient for the defendant to act
as it did.7 Kline v. Tennessee Valley Auth., 128 F.3d 337, 346 (6th Cir. 1997). When proving pretext
7
KBC argues that, on appeal, this court should only analyze pretext using the first and third
prongs of the test set forth above, because, at the district court level, Ploscowe only asserted that
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by the first or third method, discrimination may be inferred from the circumstances. Id. In the
second situation, however, the plaintiff is not challenging the veracity of the factual allegations put
forth by the defendant and thus, the plaintiff must produce additional evidence of discrimination in
order to prevail. Id. at 346-47.
Ploscowe argues that KBC’s allegations that it fired him because of his poor performance and
abrasive attitude are pretextual because (1) he was placed on a performance improvement plan
(“PIP”) in September of 2002 which made no mention of his abrasive personality; (2) he completed
all objectives of the PIP within 30 days; (3) KBC failed to follow its own RIF policy by not
considering seniority when deciding who to terminate and by not considering him for transfer; and
(4) KBC gave inconsistent reasons for why Harper was hired. Even viewed in the light most
favorable to the plaintiff, however, these facts do not demonstrate pretext.
First, Ploscowe argues that KBC’s decision to terminate him was pretextual because it placed
him on a PIP that was supposed to address all significant areas of concern, but that did not mention
anything about his abrasive personality. KBC has always asserted, however, that it chose Ploscowe
for elimination because of his abrasive personality and his poor performance. Thus, the fact that
pretext could be demonstrated under those particular prongs. Appellee’s Br. 35 (citing plaintiff’s
Memorandum in Opposition to Defendants’ Motion for Summary Judgment 132). It is true that this
court often will not reach arguments on appeal that were not raised in the district court. United
States v. Universal Mgmt. Servs., Inc., 191 F.3d 750, 759 (6th Cir. 1999). However, in this case, it
appears that the district court did not limit its analysis of pretext to the first or third prongs of the
test set forth above. Instead, the district court appeared to engage in a general analysis, and indeed,
appeared to reject a showing of pretext under the second prong by finding that Ploscowe’s poor
performance was in fact what motivated KBC to terminate Ploscowe’s employment. We therefore
do not restrict our review of pretext to the first and third prongs of the test articulated above.
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Ploscowe was placed on a PIP supports KBC’s arguments that Ploscowe was deficient in his job
performance, and, thus, militates against Ploscowe’s argument of pretext. In addition, Ploscowe’s
performance reviews, and the deposition testimony of Ploscowe’s co-workers, all note the difficulties
he had with interpersonal communication in the workplace. Thus, the fact that his abrasive
personality was not mentioned in the PIP does not support an inference that KBC’s explanation for
his termination was pretextual.
Second, Ploscowe argues that he completed all objectives of the PIP within thirty days and,
thus, he had addressed all significant areas of concern. While the follow-up to the PIP does state that
Ploscowe had improved his performance at the one month mark, KBC officials explained that “within
two or three months . . . [they] started to see things going the wrong direction again.” JA 245.
Therefore, the fact that Ploscowe had improved his performance for one month does not indicate that
KBC’s reasons for firing him were pretextual. This is especially true where the company was forced
to lay off half of the purchasing department due to a RIF and Ploscowe was an employee with a
history of performance problems and an abrasive attitude.
Third, Ploscowe argues that KBC’s reasons for firing him were pretextual because they did
not follow their own policy for determining who to terminate as a result of the RIF. The policy to
which Ploscowe refers states that, when comparing employees “in the same classification, the main
criterion is job performance, although length of service must be recognized and considered.” JA 835.
Ploscowe claims that KBC violated this policy because it failed to consider Ploscowe’s six years of
seniority. While an employer’s deviation from established layoff procedures can be viewed as
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evidence of pretext, Skalka v. Fernald Env. Rest. Mgt. Corp., 178 F.3d 414, 422 (6th Cir. 1999), in
the present case, such an inference is not warranted. Notably, KBC policy states that, when
determining whom to discharge, the “main criterion” to be considered is job performance—exactly
what KBC relied on in selecting Ploscowe for termination. In addition, even if KBC had considered
Ploscowe’s seniority, he still would have been terminated pursuant to the RIF. Of the six members
of the purchasing group, Ploscowe ranked next to last in level of seniority. Since three members had
to be terminated, Ploscowe would have been one of the three chosen even if KBC had proceeded
solely on the basis of seniority. Thus, the fact that KBC did not consider Ploscowe’s seniority does
not appear to support an inference of pretext.
Ploscowe also contends that KBC violated its policy by failing to consider Ploscowe for other
positions within the company. The policy at issue states that “[c]onsideration be made of other jobs
[to which] a member might be transferred.” However, the policy also requires that when considering
an individual for transfer, “[t]he overall good of the [company] must be the primary guideline.”
Given Ploscowe’s history of poor job performance and abrasive attitude, KBC’s determination that
transferring him to another position would not be in the best interest of the company was reasonable.
This is especially true where KBC was already being forced to terminate a substantial proportion of
its workplace due to the RIF. Transferring the plaintiff at this time would simply have resulted in
another KBC employee losing his or her job. Failure to take this course of action does not warrant
an inference that KBC’s reasons for Ploscowe’s termination were pretextual.
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Finally, Ploscowe argues that KBC has given inconsistent reasons for why it hired Lee Harper
in March of 2001, and that this inconsistency provides evidence of pretext. Ploscowe argues that
manager Steve Arbogast stated that Harper was hired because of a spike in business, while Human
Resource Director Ken Stiers stated that no such spike had occurred and that Harper was hired to
replace a departing employee. While there does appear to be some inconsistency in hiring an
individual a few months before an RIF is needed, this fact alone is not enough to support a finding
of pretext.
In conclusion, the legitimate reasons given by KBC for Ploscowe’s termination—his poor
performance and abrasive attitude—appear amply supported in the record. None of the factors cited
by Ploscowe sufficiently supports an inference that these proffered reasons were pretextual. Thus,
the grant of summary judgment on this count was proper.
D. State Law Claims
Ploscowe’s complaint also sets forth parallel claims of religious discrimination, age
discrimination, and retaliation under Ohio statutory law. These claims, brought under O.R.C.§ 4112,
are subject to the same evidentiary standards as those brought under Title VII or the ADEA. Little
Forest Med. Ctr. of Akron v. Ohio Civ. Rights Comm., 575 N.E.2d 1164, 1167 (Ohio 1991); see also
Jones v. Kilbourne Med. Lab., 162 F. Supp. 2d 813, 831 n.20 (S.D. Ohio 2000) (noting the “substantial
similarity” of claims brought under Title VII and those brought under Ohio statutory and common
law and finding that “judicial economy counsels in favor of resolving them together”). Because the
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plaintiff’s claims under Ohio state law are subject to the same analysis used for the discrimination
claims brought under federal law, the grant of summary judgment as to these claims was also proper.
Finally, Ploscowe alleges wrongful discharge in violation of Ohio public policy. To establish
a wrongful discharge in violation of public policy under Ohio law, Ploscowe must show that (1) a
clear public policy exists; (2) his dismissal would jeopardize that public policy; (3) his termination
was motivated by conducted related to the public policy; and (4) the employer lacked an overriding
legitimate business justification for the dismissal. Collins v. Rizkana, 652 N.E.2d 653, 657-58 (Ohio
1995).
Federal and Ohio state law clearly prohibit discrimination and retaliation for reporting
discrimination. However, Ploscowe has failed to establish (1) that his termination was motivated by
discrimination or retaliation and (2) that there was no legitimate justification for his dismissal. Thus,
the grant of summary judgment on this count was proper.
III. Conclusion
Ploscowe has failed to establish a prima facie case of religious discrimination and retaliation
and has failed to show that the legitimate reasons given by KBC for his termination were pretextual.
Thus, the grant of summary judgment is AFFIRMED.
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