Aday v. Westfield Ins. Co.

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STEVEN ADAY, Plaintiff-Appellant, v. WESTFIELD INSURANCE CO.; OHIO FARMERS INSURANCE CO., Defendants-Appellees.

No. 21-3115

United States Court of Appeals, Sixth Circuit

January 24, 2022

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: DAUGHTREY, COLE, and CLAY, Circuit Judges.

CLAY CIRCUIT JUDGE.

Plaintiff Steven Aday filed suit against Defendants Westfield Insurance Company and Ohio Farmers Insurance Company alleging failure-to-hire age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and Ohio law, O.R.C Chapter 4112, and retaliation under O.R.C. § 4112.02. He also alleged Defendants' counterclaims were filed in bad-faith, which would entitle him to attorney's fees under 18 U.S.C. § 1836(b)(3)(D). The district court granted Defendants' motion for summary judgment disposing of all his claims. Plaintiff then filed a motion to alter or amend the judgment, which the district court denied. For the reasons set forth below, we reverse the district court's grant of summary judgment on Plaintiff's age discrimination claims and affirm the district court's grant of summary judgment on Plaintiff's retaliation claim, finding of no bad faith, and denial of Plaintiff's motion to alter the judgment.

I.

A. Factual Background

In July 2005, Westfield Insurance Company ("Westfield"), a subsidiary of Ohio Farmers Insurance Company ("Ohio Farmers," collectively "Defendants"), hired Plaintiff as an insurance claims specialist at its Blue Ash, Ohio office. Prior to joining Westfield, Plaintiff had gained approximately 28 years of experience in the insurance industry, including 12 years in leadership roles. For approximately the first five years of his career at Westfield, Plaintiff specialized in handling construction defect claims. Then, in 2010, he was promoted to the position of Auto Unit Leader in the Auto Division where he remained for six years. As Auto Unit Leader, Plaintiff managed a team of claim representatives and he consistently received outstanding performance reviews from his supervisors and direct reports.

In July 2016, Plaintiff transferred out of his leadership role as Auto Unit Leader to become a litigation claims specialist. Although he no longer had direct reports, Westfield did not necessarily consider this a demotion. In fact, Westfield regularly rotated its employees through different positions. As a litigation claims specialist, Plaintiff handled a wide variety of claims in the areas of premises liability, construction defects, transportation and cargo, copyright infringement, advertising injury, employment practices liability, employee benefits liability, premises and operations, products liability, completed operations, and motor vehicle accidents.

In April 2017, when he was 63 years old, Plaintiff notified Defendants he would be moving to Seattle, Washington because his domestic partner, Moira Tamayo, had accepted an executive-level position in the city. Plaintiff made clear that he wanted to remain employed with Westfield, preferably working remotely in his litigation claims specialist role. At that time, Plaintiff's workload was primarily based in Ohio and Kentucky. Defendants denied his request to work remotely, but allowed him to remain in the position in Cincinnati as long as he wished.

Over the following months, Plaintiff searched for any position at Westfield that could support remote work from Seattle. In fact, Plaintiff's direct supervisor, Betsy Jones, tried to help him obtain a remote position. Jones was not the only supervisor who allegedly advocated on Plaintiff's behalf. Jodie Hopkins, Jones' second-level manager, and Robert Bowers, Westfield's National Claims Leader, also advocated on Plaintiff's behalf. The parties dispute the degree to which Jones, Hopkins, and Bowers actually supported Plaintiff's future with Westfield, but at a minimum, they agree the three had conversations about him. On one occasion, at a private funeral for a Westfield employee, Bowers brought up Plaintiff's future with Westfield with at least two employees. Upon the encouragement of Jones, Hopkins, Bowers, and others, Plaintiff applied formally and informally to several positions.

In July 2017, Sheila Lilly, Westfield's Casualty Injury / General Liability Leader, posted an announcement stating the company was looking for candidates to fill two vacancies for Unit Leader roles in her department. One position would be located in the "Mid-west and east," and the other would be "in the Western states," with direct reports in Minnesota, Arizona, Colorado, and Illinois. (Job Description, R. 41-7, Page ID # 357.)

Aware of the problems his move to Seattle had been for other positions for which he applied, Plaintiff contacted Lilly before submitting his application to see if the Unit Leader positions were even an option. Lilly encouraged him to apply but advised Plaintiff to "sell us on how you can make this work. . . . At the same time, leadership is talking about how we need leaders in an office more often." (Lilly Email, July 17, 2017, R. 41-9, Page ID # 361.) Plaintiff applied and was one of fourteen applicants invited for an interview.

On August 8, 2017, Plaintiff interviewed with Lilly and another manager, Jason Bidinger. Plaintiff brought with him a travel calendar and flight information detailing how he would travel to the positions' direct reports. The map showed the airfare costs from Seattle to the respective offices of the direct reports, which demonstrated that the cost of air travel from Seattle to these locations was no more expensive than traveling from Cincinnati. At the end of the interview, Lilly and Bidinger told Plaintiff he had "hit it out of the park." (Lilly Dep., R. 49, Page ID # 906). Bidinger even told Plaintiff at the end of his interview, "[y]ou're the one to beat." (Id., Page ID # 892). Lilly agreed.

After interviewing the applicants, Lilly and the times per month. Additionally, they expressed uncertainty whether Plaintiff actually wanted the Unit Leader position or any position in which he could work remotely. Despite feeling his interview went well, on or about August 31, 2017, Lilly notified Plaintiff that he did not get the job and shared that 45-year-old Danielle Somogyi and 50-year-old Curt Zito had accepted the two positions.

Besides Plaintiff, Somogyi and Zito were two of the top candidates. Somogyi had joined Ohio Farmers in 1994 and had been in an executive-level leadership role for 11 years. Zito began working at Ohio Farmers two years earlier in 2015. Prior to joining Ohio Farmers, he had gained over 20 years of experience in the insurance industry. Lilly had initially hired Zito and he was one of her direct reports until she transferred to the Casualty Injury / General Liability Unit Leader position shortly before these events occurred.

On or about September 14, 2017, Plaintiff spoke with Terry Neumeyer, a complex claims analyst at Westfield's home office. Neumeyer was not Plaintiff's supervisor, nor was he involved in any hiring decisions. During their conversation, Plaintiff alleges Neumeyer stated he had spoken with one or more managers about their decision not to hire Plaintiff and he said, "[e]veryone thinks it's time for you to put up your piggies, relax, and let . . . your wife be the breadwinner, you've earned it." (Aday Dep., R. 41, Page ID # 294; EEOC Compl., R. 41-13, Page ID # 476 ("According to Mr. Neumeyer, one of the managers even expressly stated that it was time for me to 'put up [my] piggies' and 'let [my] wife be the breadwinner."); Neumeyer Dep., R. 51, Page ID ## 1033-34. ("I said that he could sit back and put up his piggies.").)

On or about September 18, 2017, after learning that he had not been offered either Unit Leader position, Plaintiff gave up looking for a new job within the company and submitted his irrevocable request for retirement. He officially retired on October 31, 2017 and moved to Seattle.

B. Procedural Background

On February 12, 2018, Plaintiff filed a lawsuit in Ohio state court against Westfield alleging failure-to-hire and failure-to-retain age discrimination. On February 20, 2018, Plaintiff filed an Equal Employment Opportunity Commission ("EEOC") Charge. On May 15, 2017, the EEOC closed Plaintiff's claim and permitted him to file suit in federal court. Plaintiff dismissed his state-court suit and filed a lawsuit against Westfield in the District Court for the Southern District of Ohio on June 8, 2018, alleging age discrimination under the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and Ohio law, O.R.C. Chapter 4112.

Under both statutes, he alleged failure-to-hire and failure-to-retain discrimination claims. He subsequently amended his Complaint to add Ohio Farmers as a party.

Shortly after Plaintiff commenced this action in federal court, he disclosed to Defendants that in the course of his employment, he had emailed work files to his personal email account so he could work from home. Defendants audited Plaintiff's Westfield email account and uncovered several email messages in which Plaintiff sent proprietary information to his personal account and one email to his domestic partner, Tamayo.

On August 28, 2018, the district court granted Defendants leave to file counterclaims. They counterclaimed that Plaintiff misappropriated trade secrets in violation of the federal Defend Trade Secrets Act, 18 U.S.C. § 1831, et seq., and the Ohio Uniform Trade Secrets Act, O.R.C. § 1333.61, et seq., by emailing Defendants' proprietary information to himself and Tamayo. Plaintiff then amended his complaint to add a retaliation claim.

At the close of discovery, the...