[Cite as Hardy v. The Anderson's, Ins., 2022-Ohio-3357.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Kevin Hardy Court of Appeals No. L-21-1218
Appellant Trial Court No. CI0201903683
v.
The Andersons, Inc. DECISION AND JUDGMENT
Appellee Decided: September 23, 2022
*****
Marilyn L. Widman, Kera L. Paoff, and Clinton J; Wasserman, for
appellant.
Renisa A. Dorner, Sarah K. Skow, and Jennifer A. McHugh, for
appellee.
*****
ZMUDA, J.
{¶ 1} This matter is before the court on appeal from the judgment of the Lucas
County Court of Common Pleas granting the motion for summary judgment of appellee
The Andersons, Inc. and dismissing the wrongful discharge claims of appellant Kevin
Hardy. For the reasons that follow, we affirm.1
I. Background and Procedural History
{¶ 2} Appellant, Keven Hardy (appellant) worked for appellee, The Andersons,
Inc. (appellee) for about 34 years prior to his termination in March 2019. Appellee hired
appellant as the office manager for its new Webberville, Michigan facility in 1985, when
he was 19 years old. Appellant had worked for another company dealing in agricultural
goods briefly, and he received an associate degree in agriculture with a specialty in crop
and soil science and elevator management from Michigan State University in his early
years with appellee. During the years of his employment, appellee promoted appellant to
positions of increasing responsibility and pay. In 2016, appellee promoted appellant to
senior territory manager, with territory including Michigan north of I-94, the Upper
Peninsula, and Canada (primarily Ontario). Appellant sold plant nutrient products to
distribution and dealer networks. Additionally, appellant and other territory sales
1
We note the lower court proceedings were sealed, in their entirety, by the trial court,
and we granted leave to file briefs under seal in this appeal, based on the presence of
“sensitive business, proprietary, and commercial information; personal identifiers;
employee information; and discussion of documents produced in discovery and
designated confidential throughout the briefs,” finding that filing under seal was the
“least restrictive means available” under Sup.R. 45(E). As our decision avoids reference
to sensitive matters, the decision is not filed under seal.
2.
managers sold specialty products until appellee moved those products to a specialty
products salesperson.
{¶ 3} Appellee provided appellant with a vehicle, computer, iPad, and cell phone
to use in performing his duties, and appellant had discretion regarding his day-to-day
activities. As an exempt employee, appellant did not record his daily hours or log his
activities, but was merely required to record time off through a human resources
program. Appellant’s wife was from the Dominican Republic, and he spent time there
each year from the time they married in 2007.
{¶ 4} In 2017, two events of significance occurred. Appellant purchased a second
home in the Dominican Republic and in June 2017, appellee promoted Andrew Spahr as
supervisor for appellant and other territory managers. Spahr was much younger than
appellant, and his sales-based training and experience had been earned after he graduated
with a bachelor’s degree in political science and communications. Spahr began his tenure
with appellee as a purchasing agent, and he participated in training and development
programs offered by appellee. His promotion in 2017 was the first time Spahr had
supervised a significant number of staff.
{¶ 5} Spahr conducted appellant’s year-end performance review based on goals
established with appellant’s previous supervisor, and gave appellant an overall positive
performance review. Together, Spahr and appellant identified goals for the next year,
3.
with specific targets identified relative to new customers, improved sales, and growth
opportunities.
{¶ 6} In late 2017, appellee named Jeff Blair as Spahr’s new boss and president
for appellant’s group. Blair announced fundamental changes to sales strategy, and the
company adopted new reporting requirements, which included weekly action reports and
use of a new program for collecting data on the market and customers to use in
processing current sales and planning future strategy. Appellant did not consistently
submit reports, believing he had no requirement of weekly reporting, and he
acknowledged a learning curve in adapting to use of the new computer system.
{¶ 7} Spahr held a meeting to discuss new strategies in the fall of 2018. Appellant
and other sales managers attended, and after appellant offered his opinion regarding the
new strategies, he alleged Spahr referred to him as a “dinosaur.” Appellant perceived
Spahr’s attitude toward him as dismissive, and felt Spahr spent more time with other,
younger territory managers. Appellant did not voice his concerns to anyone at the
company at the time.
{¶ 8} Around the same time, appellant told Spahr he needed to go the Dominican
Republic for a personal emergency, to save his marriage. Appellant stayed in the
Dominican Republic from September 8 until October 25, 2018, but did not log vacation
during that time. Spahr claimed that, in response to appellant’s notice regarding leaving
the country, he addressed time off with appellant and discussed vacation policy for time
4.
out of the territory and coverage for appellant’s territory. Appellant did not recall any
discussion regarding covering his customers during his absence from the territory, and
also could not recall whether he had notified Spahr of other trips to the Dominican
Republic. Instead, appellant admitted that he told others at the company that he
vacationed in the Dominican Republic, and when he was out of country, customers would
often contact the sales office at Webberville instead of calling him.
{¶ 9} In November 2018, appellant informed appellee’s IT department that he
needed an international phone plan because he vacationed in the Dominican Republic,
without also claiming he worked remotely. Staff with the IT department contacted
appellant about his use of his company cell phone to make international calls. Appellant
expressed confusion as to why he did not have an international plan, pointing out he
vacationed in the Dominican Republic and liked to stay available even on vacation.
Appellant’s Canadian calls were included in his current phone plan and were not at issue.
At appellant’s request, and without informing Spahr, appellant was placed on an
international plan to permit in-plan phone use from the Dominican Republic. Based on
the record, it appeared IT did not require authorization from Spahr or any other
supervisor to change appellant’s phone plan.
{¶ 10} Appellant resided in the Dominican Republic from December 5, 2018, until
January 13, 2019, with a week of that time logged as vacation, coinciding with the date
Spahr proposed for a face-to-face meeting to discuss appellant’s annual performance
5.
review. Appellee was unaware that appellant was out of country, and the parties disagree
whether Spahr and appellant met by phone to discuss appellant’s performance. In place
of the face-to-face meeting, Spahr indicated he communicated with appellant by phone,
and Spahr rated appellant’s overall performance as “below expectations.” Appellant
disagreed, claiming he never spoke with Spahr, but responded in writing within the self-
assessment part of the review, indicating he met all but one of the targets previously
established as his yearly goals. Appellant acknowledged he fell below expectations
regarding the goal to reengage with prior customers to reestablish lost market share, but
argued he signed new accounts and increased sales.
{¶ 11} Appellant believed he could address any deficiencies in meeting goals with
more time. Appellant requested reassignment of his specialty sales, to free up his time,
and noted that Spahr had reassigned specialty products for other territory sales managers.
Spahr agreed to reassign appellant’s specialty sales duties to another salesperson within
the company and appeared to agree that more time would lead to better results. In his
review of appellant, Spahr indicated he “look[ed] forward to helping [appellant]
improve” during the next year, referencing the company’s growth strategy.
{¶ 12} Appellant acknowledged the review but appealed his poor rating to human
resources, asserting Spahr had arbitrarily “moved the goal posts” in discounting the goals
he did achieve and rating him “below expectations” regarding goals he actually met. In
support of his poor evaluation, Spahr indicated his own assessment indicated appellant
6.
“didn’t reach the threshold of exceeding expectations or achieving expectations in
territory.” Spahr discounted appellant’s new accounts as insignificant and discounted
appellant’s reported increase in sales, attributing the increase to internal sales and not
appellant’s efforts. Spahr was aware that appellant appealed his poor review, but did not
have any recollection of a resolution of that appeal, prior to appellant’s termination. It is
undisputed that Spahr did not follow the poor review with any remedial measures or
disciplinary action.
{¶ 13} After returning to the States on January 13, 2019, appellant traveled to the
Dominican Republic again on February 6, 2019. He was in the Dominican Republic in
early March when Spahr called to check in. Spahr heard an international ringtone, and
while he and appellant dispute the exact wording of their exchange, they agree that
appellant told Spahr he was driving down the road and working. Spahr believed
appellant indicated he was visiting customers. Appellant contends he would not have told
Spahr he was visiting customers, but likely said he was talking to customers because he
was driving in the Dominican Republic and not in his territory. However, appellant does
not claim that Spahr knew, or should have understood, that he was in the Dominican
Republic. Spahr became suspicious and asked the company IT department to trace the
whereabouts of appellant’s cell phone records and IP addresses, thinking appellant was
abusing the vacation policy.
7.
{¶ 14} After Spahr received confirmation that appellant was in the Dominican
Republic for an extended period and had not submitted vacation time, he emailed
appellant and requested an in-person meeting the next day at the company headquarters
in Maumee, Ohio. Appellant responded, by email, with a request for a video meeting,
indicating he had prior commitments for the next few days. Appellant did not share the
fact that he was out of the country. Spahr arranged a 9:00 a.m. phone call with appellant
for March 13, 2019.
{¶ 15} At the scheduled time, Spahr called appellant with human resources
listening to the call, and asked appellant about his whereabouts. Appellant recounted the
conversation as follows:
[Spahr] had stated at that time that the phone had a sound of an
international ring to it. I told him that that was not coincidental, because I
was in the Dominican Republic.
He said, You’re there now;
And I said, Yes, I’m here now.
I offered that before he ever asked. I don’t know if that conversation
was recorded or not, but [human resources] can answer to that, as [they
were] on that conversation as well.
And he said, Well, we’ve seen that you have call information,
telephone information, computer information from accessing from the
8.
Dominican Republic, and since you can’t conduct your job from there,
we’re going to terminate you.
[Human resources asked appellant whether he understood.]
And I said, I understand but I disagree with [Spahr’s] statement that
it’s not possible for me to do my job from my home office in the
Dominican Republic.
And at that point the conversation pretty well terminated.
{¶ 16} After termination, Spahr learned more details regarding appellant’s
extended periods of residence in the Dominican Republic, and drew conclusions on the
impact of absences from the territory on appellant’s work. For example, Spahr learned
that appellant had turned down meetings with customers because he was in the
Dominican Republic, and he often relied on other employees to cover in-person tasks
during his absences from the territory. Some customers informed Spahr that appellant
was unavailable when they attempted to reach him with questions or concerns.
{¶ 17} Immediately after the termination, Spahr performed appellant’s job duties
in his territories for a couple of months. Appellee posted a position within the company,
seeking internal candidates, and did not replace appellant with another senior territory
manager. Instead, appellee hired an account representative for appellant’s Michigan
territory, and transitioned other duties to other territory managers.
9.
{¶ 18} On September 6, 2019, appellant filed a complaint alleging age
discrimination in violation of R.C. 4112.02. Appellee filed an answer, denying the
allegations, and soon after moved for summary judgment. Appellant opposed summary
judgment.
{¶ 19} On October 15, 2021, the trial court granted summary judgment, finding
appellant failed to satisfy his prima facie burden of demonstrating he was qualified for
the position and was replaced by a person outside the protected class. The trial court did
not reach the issues of legitimate business reasons for termination or pretext.
{¶ 20} Appellant filed a timely appeal.
II. Assignment of Error
{¶ 21} In challenging the judgment, appellant asserts a single assignment of error
with three issues presented for review:
The Trial Court committed prejudicial and reversible error by ruling,
as a matter of law, that Appellant failed to establish a prima facie case of
age discrimination.
1. Does a genuine issue of material fact exist as to whether Appellant
met the “minimum qualifications,” as set forth in McDonnell Douglas, for
the third element of Appellant’s prima facie case?
2. Does a genuine issue of material fact exists as to whether
Appellant was replaced by someone outside his class and/or whether a
10.
comparable, substantially younger employee outside his protected class was
treated more favorably than Appellant, both relative to the fourth element
of Appellant’s prima facie case?
3. Did Appellant meet his burden of production as to whether
Appellee’s asserted legitimate business reason for terminating Appellant
was pretext for unlawful age discrimination?
III. Analysis
{¶ 22} The trial court entered summary judgment and dismissed the discrimination
claim, finding appellant failed to demonstrate a prima facie case of discrimination. We
review this decision de novo, applying the same standard as the trial court. (Citation
omitted) Degnan v. Goodwill Industries of Toledo, 104 Ohio App.3d 589, 594, 662
N.E.2d 894 (6th Dist.1995). Summary judgment is proper when no genuine issue of
material fact remains, and reasonable minds can reach only one conclusion after
construing the evidence most favorably for the nonmoving party. Civ.R. 56(C).
{¶ 23} The party seeking summary judgment bears the initial burden of
demonstrating the absence of issues of fact. Mitseff v. Wheeler, 38 Ohio St.3d 112, 526
N.E.2d 798 (1988), at the syllabus. Once the moving party meets this burden, the
nonmoving party has a reciprocal burden to produce evidence to demonstrate issues of
fact regarding the essential elements of the case. Degnan at 594, citing Wing v. Anchor
11.
Media, Ltd. of Texas, 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991), paragraph three of the
syllabus.
{¶ 24} As an initial matter, we note appellant was an at-will employee. “The
general rule in Ohio is that, in the absence of a contract, individuals are employed on an
‘at-will’ basis, and employers and employees have the right to terminate the employment
relationship for any reason or no reason (as long as it is not an illegal reason, i.e.,
proscribed discrimination).” Howell v. Whitehurst Co., 6th Dist. Lucas No. L-05-1154,
2005-Ohio-6136, ¶ 35. Pursuant to R.C. 4112.02(A), it is unlawful for any employer to
discriminate or discharge a person based on their age, without just cause.
{¶ 25} Appellant alleges age discrimination in his termination. There is rarely
direct evidence to support a prima facie case of employment discrimination. “Because of
the difficulty of proving a discrimination claim, especially where there is no direct
evidence of discriminatory motive, the Supreme Court created an analytical framework to
address ‘the order and allocation of proof’ in such cases.” Williams v. Akron, 107 Ohio
St.3d 203, 2005-Ohio-6268, 837 N.E.2d 1169, ¶ 9, quoting McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework,
a claimant has the initial burden of demonstrating a prima facie case of discrimination.
Williams at ¶ 10.
{¶ 26} “To prevail in an employment discrimination action, the plaintiff must
prove discriminatory intent.” Perez v. Theller, 6th Dist. Sandusky No. S-10-053, 2011-
12.
Ohio-2176, ¶ 10, citing Mauzy v. Kelly Services, Inc., 75 Ohio St.3d 578, 583, 664
N.E.2d 1272 (1996). In this case, appellant alleged age discrimination in his firing,
referencing the incident in which Spahr allegedly called him a dinosaur and instances in
which appellant perceived other, younger territory managers had received preferential
treatment. Appellant presented no evidence, however, linking discriminatory statements
or conduct to his firing, necessary to demonstrate age discrimination by direct proof.
Appellant, accordingly, needed to establish a prima facie claim indirectly. Peters v.
Rock-Tenn Co., 180 Ohio App.3d 10, 2008-Ohio-6444, 903 N.E.2d 10, ¶ 10 (5th Dist.).
To demonstrate a prima facie case of age discrimination, appellant needed to demonstrate
that he was a member of a protected class, that he suffered an adverse employment
action, that he was qualified for the position, and that he was replaced by a person of a
substantially younger age. Perez at ¶ 10, citing Coryell v. Bank One Trust Co., 101 Ohio
St.3d 175, 2004-Ohio-723, 803 N.E.2d 781, ¶ 20 (additional citations omitted.).
{¶ 27} Once a claimant establishes a prima facie case, a presumption of unlawful
discrimination by the employer arises. Williams at ¶ 11, citing Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The
burden then shifts to the employer to demonstrate “a legitimate, nondiscriminatory
reason” for the adverse action against the employee. Williams at ¶ 12, quoting Burdine at
254. If the employer fails to present evidence, and “reasonable minds could differ as to
whether a preponderance of the evidence establishes the facts of a prima facie case,” then
13.
the matter must be submitted to a jury or fact finder. Williams at ¶ 13, quoting St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 509-510, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)
(emphasis sic.).
{¶ 28} Should the employer meet its burden of producing evidence, however,
demonstrating a legitimate reason, the employee must then demonstrate, by a
preponderance of the evidence, that the proffered legitimate reason was a pretext for
discrimination. Williams at ¶ 14, citing Burdine at 253, citing McDonnell Douglas, 411
U.S. at 804, 93 S.Ct. 1817, 36 L.Ed.2d 407. Demonstrating pretext requires proof that
the proffered reason was false and the real reason was discrimination. Id. “A case that
reaches this point is decided by the trier of fact on the ultimate issue of whether the
defendant discriminated against the plaintiff.” Id.
{¶ 29} The parties do not dispute that appellant satisfies the first two prongs of the
McDonnell Douglas framework, that appellant was a member of a protected class and
had been discharged. Instead, the parties dispute whether appellant satisfied the third and
fourth prongs, demonstrating he was qualified for his position and that he was replaced
by a person from outside the protected class or that a non-protected, comparable
employee enjoyed better treatment. Appellant also argues that, presuming he
demonstrated a prima facie discrimination case, he met his burden of production
regarding the stated reason or reasons for his termination as pretext. We address each
argument in turn.
14.
A. Issues of fact remain as to whether appellant was qualified for the
position.
{¶ 30} In the first issue presented under appellant’s sole assignment of error,
appellant argues the trial court improperly considered his qualification for the position
under the “legitimate expectations” test, rather than the “minimum objective
qualifications” test adopted by other jurisdictions, outside Ohio. In doing so, appellant
argues the trial court improperly considered evidence of appellee’s proffered reason for
termination as part of appellant’s prima facie case, prematurely shifting the burden in
appellee’s favor.
{¶ 31} Appellant advocates for a departure from our precedent in addressing his
qualifications as part of a prima facie claim. In addressing the third element of a prima
facie claim, we previously held that “[i]n order to demonstrate qualifications for a
position, a plaintiff must show [he] has the capability of performing the work and that
[he] is meeting the employer’s legitimate expectations.” Wilson v. Toledo Public
Schools, 6th Dist. Lucas No. L-02-1107, 2003-Ohio-482, ¶ 35, citing Landon v. ABB
Automation, Inc., 11th Dist. Lake No. 2001-L-154, 2002-Ohio-3376, ¶ 10; Ebright v.
Video News Super Stores, 6th Dist. Lucas No. L-00-1369, 2001 WL 771008 (Jul. 6,
2001); Smith v. Greater Cleveland Regional Transit Authority, 8th Dist. Cuyahoga No.
78274, 2001 WL 605405 (May 24, 2001); see also Perez v. Theller, 6th Dist. Sandusky
No. S-10-053, 2011-Ohio-2176, ¶ 19. We find no basis to reject this precedent.
15.
{¶ 32} Considering appellant’s education and long tenure with appellee in
positions of increasing responsibility, he was capable of performing the work. As to
legitimate expectations, we consider this factor objectively, independent of any
consideration of appellee’s proffered reason for termination. McGlumphy v. Cty. Fire
Protection, Inc., 2016-Ohio-8114, 74 N.E.3d 986, ¶ 23-25 (11th Dist.); see also Cline v.
Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir.2000).
{¶ 33} Appellee argues that it had a legitimate expectation that appellant would
work within his sales territory, conducting face-to-face meetings with customers.
Because appellant was purporting to work remotely from outside his territory, appellee
argues, appellant did not meet the legitimate expectation for the job at the time of his
termination. This argument requires consideration of the proffered reason for firing
appellant, however, or the conduct appellee claimed as meriting termination. The trial
court delved into these facts in determining appellant was not qualified, based on his
alleged misconduct in purporting to work from the Dominican Republic.
{¶ 34} Considering the evidence, appellee had no policies regarding minimum
personal contact in customer interactions or prohibiting remote work. Instead the record
demonstrates appellee issued appellant technology that would permit other than face-to-
face, in-person work, including a laptop, computer, cell phone, and internet access to
company systems and software. Furthermore, demonstrating a prima facie case does not
present an onerous burden, as a prima facie case merely permits a rebuttable presumption
16.
of discriminatory treatment. Appellant need only demonstrate that he was capable and
could meet legitimate employer expectations. Stookey v. South Shore Transp. Co., 6th
Dist. Erie No. E-11-044, 2012-Ohio-3184, ¶ 14, citing Burdine, 450 U.S. at 253, 101
S.Ct. 1089, 67 L.Ed.2d 207.
{¶ 35} Here, we find no clear expectation that work had to be performed only
within the assigned territory, sufficient to grant summary judgment on this issue.
Moreover, while a trier of fact could ultimately find appellant’s conduct merited
termination, that is not the issue relative to a prima facie case. Based on the record,
reasonable minds could find that appellant was qualified for the job based on objective
qualifications and expectations. The trial court therefore erred in considering facts
related to appellee’s stated reason for termination in determining appellant did not meet
this element of a prima facie case.
B. Appellant was not replaced by a substantially younger employee or
subjected to disparate treatment from a similarly situated employee.
{¶ 36} Appellant next argues that he demonstrated he was replaced by a younger
employee and, in the alterative, subjected to disparate treatment when compared to
another, younger territory manager. To demonstrate the fourth element of a prima facie
claim, appellant must demonstrate genuine issues of fact regarding replacement by a
substantially younger employee or disparate treatment when compared to similarly
situated employees. Stookey at ¶ 10-11.
17.
{¶ 37} As to replacement, appellant must demonstrate evidence that another
employee replaced him by taking on a substantial portion of his duties. Ksiazek v.
Columbiana Cnty. Port Auth., 2021-Ohio-1267, 171 N.E.3d 394, ¶ 50 (7th Dist.), citing
Mittler v. OhioHealth Corp., 10th Dist. Franklin No. 12AP-119, 2013-Ohio-1634, ¶ 25
(additional citation omitted.). Replacement requires hiring or reassigning another
employee to perform those duties, and merely redistributing work among other
employees, in addition to their other duties, does not constitute a replacement. Id., citing
Nist v. Nexeo Sols., L.L.C., 10th Dist. Franklin No. 14AP-854, 2015-Ohio-3363, ¶ 35,
citing Lilley v. BTM Corp., 958 F.2d 746, 752 (6th Cir.1992).
{¶ 38} In this case, appellant presented evidence that his job duties were initially
assumed by Spahr, in addition to Spahr’s management responsibilities. At the time of his
termination, appellee had already reassigned specialty products to another employee so
that appellant could focus on primary products. As to appellant’s job responsibilities, at
the time of his termination, Spahr testified regarding coverage as follows:
I was the direct replacement for day-to-day management over the
course of a couple months following his termination. I worked directly
with customers. And we posted the role and received applications for that
job, and consistent with our statement of principles, promoted an internal
18.
employee2 who was in the developmental role in our Champaign facility to
an account rep role in Michigan. It was not a direct replacement for
[appellant’s] role.
Spahr testified that he covered the territory for several months, spanning “the time that
we – that [appellant] was separated from the company to the time that we had territory
managers sufficiently trained in the territory to take care of the business.” Spahr
indicated that by October/November of 2019, “we had transitioned most of the day-to-
day communications.”
{¶ 39} “[A] person is not replaced when another employee is assigned to perform
the [claimant's] duties in addition to other duties, or when the work is redistributed
among other existing employees already performing related work.” Barnes v. GenCorp,
Inc., 896 F.2d 1457, 1465 (6th Cir. 1990). However, a person is replaced if another
employee is hired to perform a substantial portion of their prior duties. Ksiazek, 2021-
Ohio-1267, 171 N.E.3d 394, ¶ 50 (7th Dist.), citing Ryncarz v. Belmont Cty. Court of
Common Pleas Juvenile Court Div., 2017-Ohio-4423, 93 N.E.3d 190, ¶13 (7th Dist.).
Based on the record, Spahr hired a substantially younger woman to a different position
(account representative) than the job held by appellant, and assigned only part of
appellant’s territory to this new position, with the remaining responsibilities
2
The newly hired account representative was a 26-year-old woman.
19.
“transitioned” to other employees. In response to this evidence, appellant presented no
evidence demonstrating the position of account representative was the same position he
held, and he was therefore replaced by the younger account representative, or that the
new employee performed a substantial portion of his territory sales manager job.
Without such evidence, appellant fails to demonstrate issues of fact regarding
replacement.
{¶ 40} In the alternative, appellant argues that Spahr treated appellant less
favorably than another, younger territory sales manager, L.P. The fourth element of a
prima facie claim may be demonstrated through evidence of better treatment by the
employer of a “comparable non-protected person.” Parries v. Makino, Inc., 148
Fed.Appx. 291, 296 (6th Cir.2005), quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 582-
583 (6th Cir.1992). A comparable person is one who is “similarly-situated in all relevant
aspects[.]:” Id., citing Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th
Cir.1994).
{¶ 41} Appellant argues that L.P. received more favorable treatment, because
Spahr approved of L.P. living outside his sales territory. To be similarly situated,
appellant and L.P. must have reported to the same supervisor, have worked under the
same standards, and have engaged in the same conduct “without such differentiating or
mitigating circumstances that would distinguish their conduct or the employer's treatment
20.
of them for it.” Stookey, 6th Dist. Erie No. E-11-044, 2012-Ohio-3184, at ¶ 11, citing
Mitchell at 583.
{¶ 42} Appellant argues that his work from his home office in the Dominican
Republic is no different from L.P.’s work from his home office, in Indianapolis, Indiana.
L.P.’s territory included northern Indiana. The record demonstrated no company policy
requiring a sales manager to live within their assigned territory, and no company policy
addressing the requirements governing remote work. The evidence showed that sales
managers were issued technology that would permit remote work, and territory sales
managers did not report to a company office building, but were instead “based” out of the
Maumee office while assigned to their sales territory. Appellant testified that he worked
out of his home offices, either in Michigan or the Dominican Republic, but never let
Spahr know he was out of the country for weeks at a time. Appellant testified that he did
not need to notify Spahr or appellee of his extended absences from his territory.
{¶ 43} Appellant’s testimony regarding his work history with appellee contradicts
this position. Appellant, in recounting his various postings within the company, testified
that he relocated when he took on new territory, so he would be near his work. When he
was first hired in 1985, appellant relocated from Ohio to the Webberville area in
Michigan, near the facility where he worked. Appellee transferred appellant to Illinois
for six years, and appellant moved there with his family. Then in 2001, appellee assigned
appellant to territory in Michigan. Regarding this move, appellant testified:
21.
So I moved back to Michigan for [appellee] to manage this territory
and grow this territory. We agreed where I was – where I was going to
reside. I resided in Gaylord, Michigan.
And then after – and in 2001, my family was still in Illinois, and I
was commuting on the weekends to see my wife and four children from
January the 1st to August.
And then my family moved up in August. We moved into a house,
then, instead of my apartment, in Gaylord, Michigan. We lived there for a
couple of years. And then we – we built a house in Johannesburg and
moved into that in December of 2005.
The difference in the distance between Gaylord and Johannesburg is
10 to 12 miles.
According to appellant, from 2001 until 2016, he was a territory sales manager living in
Michigan, and in 2016 he was named a senior territory sales manager, with the same
duties and territory. Appellant and his first wife divorced during that time, and in 2007,
appellant married his second wife, who was from the Dominican Republic. While
appellant testified that it was known within the company that he had purchased a second
home in the Dominican Republic, appellant also acknowledged that he never informed
Spahr or anyone else at the company that he resided in the Dominican Republic for a
22.
significant portion of the year, and that he required “a respectable amount of notice” to be
available for in-person meetings.
{¶ 44} Considering the record, appellant’s conduct does not equate to L.P.’s
conduct, but instead demonstrates “differentiating or mitigating circumstances that would
distinguish [the] conduct or the employer's treatment of them for it.” Stookey at ¶ 11,
citing Mitchell, 964 F.2d at 583. L.P. resided mere hours in driving distance from his
territory. Appellant, however, left the continental United States and lived on an island
almost 2,000 miles away.
{¶ 45} Appellant also acknowledged that L.P. had permission to live outside his
territory. Appellant testified:
[A]though [L.P.] was new, [Spahr] was also new. And he was also –
like I said, in conversation that I had with [L.P.], he was told that, you
know, it was okay for him to reside outside of his territory’ where,
obviously, based on, you know, what brought us here today, it was not okay
for me. [emphasis added.].
In contrast to L.P.’s circumstances, appellant did not request permission or even raise the
issue with Spahr. Instead, appellant relocated to the Dominican Republic for weeks at a
time without informing Spahr, his supervisor, of his new working arrangement.
Furthermore, the one time he did inform Spahr he was going to the Dominican Republic,
to “save his marriage,” Spahr discussed vacation policy and coverage for the territory, but
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appellant failed to log any vacation time for that trip or even inform Spahr of the duration
of his trip.
{¶ 46} Finally, appellant argues that Spahr spent time with L.P. in L.P.’s territory
but did not spend time with appellant in his territory. The record demonstrates appellant,
himself, spent limited time in his own territory. Appellant also points to no facts to
demonstrate he desired such attention from Spahr, or that L.P.’s time with Spahr
supported an inference of favoritism, considering appellant acknowledged L.P. was a new
hire, learning his job and “getting to know the customers.”
{¶ 47} In order to find a genuine issue of fact, we must construe the evidence in
appellant’s favor and make a reasonable inference regarding that evidence. Harless, 54
Ohio St.2d at 66, 375 N.E.2d 46. “An inference is reasonable when it is drawn from facts
in evidence[.]” (Citations omitted) Woodside Mgt. Co. v. Bruex, 2020-Ohio-4039, 157
N.E.3d 295, ¶ 72 (9th Dist.). In this case, appellant relies on facts that provide no support
for his claims of disparate treatment.
{¶ 48} As previously noted, the burden of demonstrating a prima facie case is not
onerous. Stookey at ¶ 14, citing Burdine, 450 U.S. at 253, 101 S.Ct. 1087, 67 L.Ed.2d
207. “In determining whether an allegedly comparable employee is similarly situated,
the ultimate question is whether ‘all of the relevant aspects of [his] employment situation
were ‘nearly identical’ to those of the [comparator's] employment situation.’” (Emphasis
sic.) Allen v. Ohio Dept. of Job & Family Svcs, 697 F.Supp.2d 854, 887 (S.D.Ohio 2010),
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citing Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir.1998); Clayton
v. Meijer, 281 F.3d 605, 611 (6th Cir.2002).
{¶ 49} Both appellant and L.P. had a home outside their assigned territory. But
L.P. lived close to his territory, and appellant resided – for much of the year – in the
Dominican Republic. Based on appellant’s testimony, he understood that L.P. was told
he could reside outside his territory. In contrast, appellant did not discuss his residence
with Spahr, despite acknowledging a history of relocations for the company during his
career to live near his territory. Therefore, despite the less than onerous burden in
demonstrating a prima facie case, appellant failed to demonstrate issues of fact regarding
disparate treatment, presenting no evidence to support a reasonable inference of
indistinguishable conduct and different treatment.
{¶ 50} Upon due consideration of the record, appellant failed to present evidence
to demonstrate disputed issues of fact regarding the fourth prong of the McDonnell
Douglas test. Accordingly, we find the trial court did not err in its determination that
appellant failed to demonstrate a prima facie claim of age discrimination.
C. Lack of dispute regarding one proffered basis for termination
precludes finding of pretext based on appellee’s honest belief.
{¶ 51} While our finding regarding the prima facie claim is dispositive, the parties
have raised and addressed the issue of pretext. Accordingly, we address pretext in kind.
{¶ 52} Had appellant demonstrated a prima facie claim, appellee would bear the
burden of demonstrating “some legitimate, nondiscriminatory reason for the employee’s
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termination.” Stookey at ¶ 15, citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct.
1817, 36 L.Ed.2d 668. To this end, appellee introduced evidence articulating a
nondiscriminatory reason for termination: appellant’s alleged dishonesty in taking
extended absences from his sales territory and appellant’s extended absences from his
sales territory. Appellant does not dispute his lengthy absences but argues no dishonesty
because he never affirmatively lied to Spahr or the company regarding his whereabouts.
Instead, appellant argues this reason was mere pretext for age discrimination.
{¶ 53} Appellant argues that appellee’s proffered reason for termination was
pretext for discrimination. Typically, pretext is demonstrated in one of three ways: “(1)
that the proffered reasons had no basis in fact, (2) that the proffered reasons did not
actually motivate the employer's action, or (3) that the proffered reasons were insufficient
to motivate the employer's action.” Miles v. S. Cent. Human Resource Agency, Inc., 946
F.3d 883, 888 (6th Cir.2020), quoting Chen v. Dow Chemical Co., 580 F.3d 394, 400 (6th
Cir.2009); see also Gerding v. Girl Scouts of Maumee Valley Council, Inc., 6th Dist.
Lucas No. L-07-1234, 2008-Ohio-4030, ¶ 26.
{¶ 54} In opposing summary judgment in the trial court, appellant argued the
evidence demonstrated that appellee’s proffered reason for termination was false, or
lacked a factual basis, and therefore created a question regarding pretext when combined
with Spahr’s subjective, poor evaluation and ageist comment about appellant. Appellant
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focused on the reason provided at the time of termination, noting appellee proffered
additional reasons after obtaining new information, post-termination.
{¶ 55} Appellant’s evidence must demonstrate that issues of fact remain regarding
the factual basis for his termination to survive summary judgment. Perez v. Theller, 6th
Dist. Sandusky No. S-10-053, 2011-Ohio-2176, ¶ 20. Appellant referenced his work
while in the Dominican Republic and the lack of any written policy governing remote
work. He further noted that his second home in the Dominican Republic was known to
appellee, and he did not lie about his whereabouts, but answered truthfully when Spahr
asked him on the day he was terminated. Appellant further cited Spahr’s “dinosaur”
reference and Spahr’s “below expectations” rating of appellant for sales goals appellant
actually met and exceeded.
{¶ 56} In response, appellee characterized appellant’s conduct as evasive, arguing
appellant concealed his whereabouts rather than volunteering to Spahr that he was in the
Dominican Republic for extended periods. Appellee also argued that appellant failed to
use vacation time while in the Dominican Republic and outside his sales territory,
rejecting appellant’s claims of working remotely from his Dominican Republic home
office during those weeks, so far from his territory and his customers. In arguing the
termination was not pretext for discrimination, appellee relies on the “honest belief”
doctrine, articulated in Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.1998).
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{¶ 57} The “honest belief” doctrine, in the context of discrimination cases,
requires consideration of whether an employer acted on a good faith belief and had a
reasonable basis for its adverse action. Id. “Thus * * * in order for an employer’s
proffered non-discriminatory basis for its employment action to be honestly held, the
employer must be able to establish its reasonable reliance on the particularized facts that
were before it at the time the decision was made. If the employer is unable to produce
such evidence to support its employment action, then the ‘honest belief’ rule does not
apply.” Id. at 807.
{¶ 58} In this case, the parties appear to agree on at least one pertinent fact
regarding the termination, that appellant spent many weeks of the year in the Dominican
Republic, away from his sales territory. Whether appellant lied by omission is irrelevant,
considering the territory sales manager’s job responsibilities. Appellee demonstrated
reliance on a reasonable belief that appellant had extended absences from his sales
territory without notifying appellee. In response, appellant argued the lack of a specific
policy governing the percentage of time spent within the territory. Appellant’s argument,
however, failed to refute the fact of his absence from the continent, demonstrated by the
record evidence as a departure from his history of residing near his territory.
Accordingly, appellee demonstrated a lack of issues of fact relative to an “honest belief”
underlying the basis for termination.
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{¶ 59} Therefore, considering the record and construing the evidence in
appellant’s favor, we find no issues of fact remain regarding pretext, as well as
appellant’s prima facie case for age discrimination. Accordingly, we find the trial court
did not err in granting summary judgment in favor of appellee, and appellant’s sole
assignment of error is not well-taken.
IV. Conclusion
{¶ 60} Based on the foregoing, we find substantial justice has been done and we
affirm the entry of summary judgment in favor of appellee by the Lucas County Court of
Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to App.R.
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Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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