DeBarr v. Cleveland Clinic Foundation

Citations: 918 F. Supp. 2d 676; 2013 U.S. Dist. LEXIS 5837; 2013 WL 160382Docket: Case No. 1:11 CV 2814

Court: District Court, N.D. Ohio; January 14, 2013; Federal District Court

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Defendant Cleveland Clinic Foundation's Motion for Summary Judgment has been granted in a case where plaintiff Robert T. DeBarr alleged age discrimination, claiming he was forced to resign or constructively discharged. DeBarr, hired in 1991 at age 53 and promoted to various positions over the years, became a Manager II in January 2008 at age 71, overseeing 14 employees, most over 50 years old. After assuming this role, DeBarr faced challenges in staffing, communication, and productivity monitoring. Between July 2009 and May 2010, four anonymous complaints were made regarding management issues, including violations of workplace policies and concerns about overtime practices. While employee dissatisfaction with management was noted, DeBarr was not disciplined in connection with these complaints. The Court ruled in favor of the defendant, indicating that the evidence did not support the plaintiff's claims of discrimination.

Martin began counseling the plaintiff in April 2010 to address performance issues as a manager, following a poor performance evaluation for the 2009 fiscal year which rated him as "meets most expectations." The evaluation acknowledged the plaintiff's ability to complete projects but highlighted the need for improvement in managerial skills. Martin provided a document titled "Evaluation Improvement Recommendations," outlining specific areas for enhancement, including leadership, communication with staff, and monitoring employee productivity and time management.

Despite receiving the highest rating the previous year, concerns persisted as Martin met with the plaintiff again in July 2010 due to insufficient progress and additional employee complaints. Issues of leadership and communication were reiterated, alongside a recommendation to improve workplace language, particularly regarding profanity.

In August 2010, ongoing corporate compliance complaints led Human Resources to initiate a formal investigation into the ITD Telecommunications department. The investigation, conducted by Ullman and others, involved interviews with department staff and revealed persistent complaints about the plaintiff's management skills. Most alarmingly, it uncovered instances of the plaintiff making racist, sexist, and classist remarks, which were reported by dissatisfied employees.

Ullman documented several inappropriate comments and behaviors attributed to the plaintiff, including derogatory language about race and gender, offensive jokes, and inappropriate references to employees' characteristics. These findings were formally recorded in handwritten notes dated October 17, 2010.

Typed questionnaires completed by Network Technicians, submitted via affidavit by Ullman, revealed concerning behaviors of the plaintiff prior to termination. John Chyben, age 61, noted the plaintiff had become abrasive and made offensive jokes, while Dan Zenbauer, age 34, reported inappropriate comments regarding sexual orientation and race. Following the investigation, which included input from Human Resources and senior executives, it was determined that the plaintiff's termination was justified, though he was offered the option to resign due to his years of service. On October 18, 2010, the plaintiff accepted this resignation offer after being informed of the findings. Subsequently, the plaintiff filed a discrimination claim under the Age Discrimination in Employment Act (ADEA), and the case is now subject to a Motion for Summary Judgment. Summary judgment can be granted if there are no genuine issues of material fact, requiring the moving party to demonstrate this absence, while the nonmoving party must provide specific facts to show a genuine issue for trial. If the nonmoving party fails to respond adequately, summary judgment may be entered against them.

A plaintiff must provide substantial evidence for a jury to reasonably find in their favor, as mere minimal evidence is insufficient (Copeland v. Machulis, 57 F.3d 476, 479). The court may grant summary judgment if evidence is merely colorable and not significantly probative (Anderson, 477 U.S. at 249-50). In age discrimination claims under the ADEA, a plaintiff can use either direct or indirect evidence. Direct evidence directly proves a fact without inference and includes statements from the defendant indicating discriminatory intent (Rowan v. Lockheed Martin Energy Sys. Inc., 360 F.3d 544; Smith v. Chrysler Corp., 155 F.3d 799). Indirect evidence requires establishing a prima facie case based on the McDonnell Douglas framework, which involves demonstrating membership in a protected class, suffering an adverse employment action, being qualified for the position, and being treated less favorably than someone outside the protected class (Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307). If a prima facie case is established, the employer must provide a legitimate, nondiscriminatory reason for the adverse action, after which the burden shifts back to the employee to show that this reason was pretextual (Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261). The employee must ultimately demonstrate that age was the primary cause of the adverse action (Geiger v. Tower Auto., 579 F.3d 614). 

In the case discussed, the defendant acknowledges the plaintiff's prima facie case via circumstantial evidence but contests the presence of direct evidence and claims that the plaintiff has not shown pretext. Direct evidence is defined as requiring no inferences to conclude that discrimination was a motivating factor (Johnson v. Kroger Co., 319 F.3d 858). Discriminatory statements must come from decision-makers and be related to the employment decision to satisfy the burden of proof (Geiger v. Tower Automotive, 579 F.3d 614). The Sixth Circuit evaluates allegedly discriminatory remarks based on four factors: the speaker's status as a decision-maker, relevance to the decision-making process, clarity of the statements, and timing relative to the termination (Diebel v. L. H Resources, LLC, 492 Fed. Appx. 523).

Plaintiff provides testimony indicating that Gary Holkovic questioned him about retirement multiple times, specifically in 2008 during a conversation about the Clinic’s heart center. In these discussions, the plaintiff consistently expressed his intention to remain employed, stating he would provide five years' notice before retiring. Holkovic confirmed he had similar inquiries about the plaintiff's retirement plans but noted these did not constitute direct evidence of age discrimination, as they did not imply that the plaintiff was terminated due to his age. Additionally, comments made by Holkovic and another decision-maker, Ullman, about the plaintiff being "old school" were deemed ambiguous and unrelated to employment decisions. 

The plaintiff also highlighted remarks from co-workers, referred to as a "gang of four younger men," who described him as "old school" and part of a "good old boys club." However, these comments were not made by decision makers and lacked a direct connection to age discrimination, as they pertained to the plaintiff's outdated views rather than his age. Furthermore, the ages of the co-workers ranged from 33 to 61, and the plaintiff himself implied that any negative feelings from these individuals were due to his refusal to alter his overtime practices rather than age bias. Overall, the evidence presented does not substantiate a claim of age discrimination.

Plaintiff claims that certain employees influenced the decision to terminate him, arguing that under the 'cat’s paw' theory, the defendant can be liable if a decision-maker is swayed by someone motivated by age bias. Citing Ercegovich v. Goodyear Tire & Rubber, the plaintiff notes that discriminatory remarks from those who influenced an adverse decision are pertinent. However, there is no evidence that the four employees made age-biased comments, and unlike in Ercegovich, these employees were non-supervisory and thus did not have the authority to influence the termination. The plaintiff alleges that Ullman, who oversaw the investigation, merely 'rubber stamped' the younger co-workers' accusations, but the investigation was conducted by experienced HR Generalists, who did not make ageist remarks against the plaintiff. Consequently, the plaintiff has not established direct evidence of age discrimination.

On the issue of pretext, while the plaintiff has established a prima facie case of discrimination, the defendant provided a legitimate reason for termination related to unlawful comments made by the plaintiff. To succeed, the plaintiff must prove that this reason is a pretext for discrimination, which can be shown by demonstrating that the reason lacks factual basis, was not the actual reason, or was insufficient to justify the termination. The plaintiff's deposition testimony denies making the alleged comments, although he acknowledges potentially using derogatory terms for women. Reports from coworkers corroborate the inappropriate comments attributed to him. Additionally, the plaintiff identifies the accusing technicians as individuals with a history of creating workplace conflict, suggesting possible bias in their allegations against him.

No evidence supports that the allegations against the defendant were driven by age bias rather than dissatisfaction with management. The disruptive behavior of the individuals involved does not indicate that their claims were fabricated due to age bias. The Court acknowledges the defendant's entitlement to the "honest belief rule," which asserts that if an employer sincerely believes in its stated reason for an adverse employment action, this belief negates the presumption of pretext. An employer’s reason is deemed honestly held if it is based on specific facts available at the time of the decision. The burden then shifts to the plaintiff to prove that the employer's belief was not genuinely held. Mere assertions by the employee that the employer's reason lacks factual support do not suffice to challenge the employer's honest belief or create a material fact issue.

The defendant's investigators acted on credible information concerning the plaintiff's workplace comments and behavior. Discovery corroborated some allegations made by at least one employee. The plaintiff’s argument against the honesty of Ullman's belief is weakened by the fact that other employees, like Holkovic, Bobnar, and Martin, also faced no discipline for overtime issues, similar to the plaintiff. Despite the plaintiff's claims regarding Ullman’s perception of him by women and African Americans, the plaintiff admitted to using derogatory terms and was confirmed by an African American employee as having made inappropriate comments, indicating a pattern of behavior that warranted action. 

Testimony from Christopher Scott, an African American subordinate, revealed that, although he did not take personal offense to the plaintiff’s behavior, he observed problematic comments made by the plaintiff, including derogatory references and insensitive jokes. The defendant's decision to act against the plaintiff aligns with its nondiscrimination and harassment policy and does not hinge on whether individuals reported feeling offended. The Court emphasizes that it cannot substitute its judgment for that of the defendant in evaluating workplace conduct.

Judicial review of business decisions under the Age Discrimination in Employment Act (ADEA) does not allow for substituting management's judgment. The plaintiff must demonstrate that termination was due to membership in a protected class, rather than merely that the decision could be viewed as unfair by others. Allegations regarding a 'lie and deny' atmosphere and questioning the honesty of Ullman, who handled the investigation, are deemed conjectural without substantive evidence. The failure of colleagues to report the plaintiff's comments does not imply dishonesty in their reports or that the employer acted improperly. The plaintiff’s claims that other younger employees faced similar complaints but were not disciplined are irrelevant, as neither he nor they were terminated for the same reasons as his case. Ullman confirmed that while overtime issues were considered, the primary concern leading to the plaintiff's termination was inappropriate comments, not the complaints against others. Although the plaintiff had a strong performance history prior to his managerial role, his performance evaluations declined, and his supervisor, who was close in age to the plaintiff, provided counseling for improvement. The presence of a decision-maker within the same protected class weakens claims of discrimination.

Plaintiff alleges that Ullman concealed information from Holkovic regarding the absence of complaints from black individuals or women about the plaintiff's comments, and failed to report that younger white males (Zenbauer, Chyben, Golden, and Gray) had made age-based slurs against plaintiff and sought his termination. It is noted that three of these individuals were over age 40, and no evidence supports that they made age-related slurs. The intent to terminate plaintiff is stated to be unrelated to age. Although plaintiff claims that complaints continued post-termination, only two additional complaints were reported. The plaintiff must prove that age was the "but-for cause" of his termination, but he has not provided evidence of age bias; in fact, evidence indicates otherwise: plaintiff was hired at age 53 and received promotions at ages 63 and 71. Those who promoted him, including Martin, Holkovic, and Fogleman, were involved in the termination decision. At the time of termination, approximately 79% of plaintiff's supervisees were over 50, and 29% were over 60. No evidence suggests age was the reason for his termination, leading to the conclusion that plaintiff fails to demonstrate pretext. Consequently, the defendant’s Motion for Summary Judgment is granted. Although the defendant also sought summary judgment on a hostile work environment claim, none was alleged by the plaintiff, who did not address or assert such a claim, effectively abandoning it. Direct evidence of discrimination alters the need for the McDonnell Douglas framework, as it eliminates the necessity for the prima facie case inference.