Moore v. Laboratories

780 F.Supp.2d 600

William J. MOORE, Plaintiff,

v.ABBOTT LABORATORIES, et al., Defendants.

Case No. 2:05–cv–1065.

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

Feb. 7, 2011.

Russell Allen Kelm, Joanne W. Detrick, Law Offices of Russell Kelm, Columbus, OH, for Plaintiff.Jeffrey S. Hiller, Littler Mendelson, PC, David Anthony Kadela, Columbus, OH, Derek J. Sarafa, James F. Hurst, William C. O'Neil, Winston & Strawn LLP, Chicago, IL, for Defendants.

OPINION AND ORDER

MICHAEL H. WATSON, District Judge.

Plaintiff asserts Defendants discriminated against him because of his age by failing to rehire him for several positions after he was terminated as part of a reduction in force, and that Defendants retaliated against him after he was rehired because he continued to pursue his age discrimination claims, in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and Ohio Revised Code Chapter 4112. Defendants move for summary judgment. Defs.' Mot. Summ. J., ECF No. 116. For the reasons that follow, the Court grants Defendants' summary judgment motion in part and denies it in part.

I. BACKGROUND

Plaintiff William J. Moore was born in March 1948. Moore earned his Masters of Science Degree in nutrition from Florida International University in 1978. Moore is a Registered Dietitian.

Defendants are Abbott Laboratories, Abbott Laboratories, Inc., and Abbott Laboratories Ross Products Division. The Court will refer to these related entities collectively as “Abbott.”

Abbott hired Moore as a medical nutritional sales representative for the Brooklyn, New York territory in November 1982. Moore was promoted several times and received numerous awards for his performance while working at Abbott. In 2000, Moore became a physician's specialist, a position he held until February 2005, at which time Abbott eliminated all physician's specialists as part of a reduction in force.

Soon after his termination, Moore began applying for other positions at Abbott. Abbot declined to hire Moore for twelve of the positions for which he applied.¹ The circumstances of Abbott's rejection of Moore for each of the twelve positions will be discussed below in more detail. In October 2005, Moore filed an action against Abbott in the Franklin County, Ohio, Court of Common Pleas, asserting age discrimination under Ohio Revised Code Chapter 4112 on the basis of Abbot's failure to rehire him. Abbott removed the action to this Court in November 2005.

Abbott rehired Moore as a sales trainer in March 2006. Moore avers that soon after he was rehired he began to experience harassment and retaliation for his age discrimination lawsuit and other protected activities. ² The Court will examine each instance of alleged retaliation and harassment below. Moore added a claim of retaliatory harassment in his amended complaint filed in October 2007. Pl.'s Am. Compl. ¶¶ 22, 23, ECF No. 56.

Moore resigned from his position at Abbott in March 2008. He added an allegation of constructive discharge on the basis of the alleged harassment to his February 2009 amended complaint. Pl.'s Am. Compl. ¶ 18, ECF No. 105.

II. SUMMARY JUDGMENT

The standard governing summary judgment is set forth in Federal Rule of Civil Procedure 56(c), which provides:

The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c).

The Court may grant summary judgment if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Petty v. Metro. Gov't of Nashville–Davidson Cnty., 538 F.3d 431, 438–39 (6th Cir.2008).

When reviewing a summary judgment motion, the Court must draw all reasonable inferences in favor of the nonmoving party, who must set forth specific facts showing that there is a genuine issue of material fact for trial, and the Court must refrain from making credibility determinations or weighing the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 487 (6th Cir.2006). The Court disregards all evidence favorable to the moving party that the jury would not be not required to believe. Reeves, 530 U.S. at 150–51, 120 S.Ct. 2097. Summary judgment will not lie if the dispute about a material fact is genuine, “that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir.2009).

Thus, the central issue is “ ‘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.’ ” Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 234–35 (6th Cir.2003) (quoting Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505).

III. AGE DISCRIMINATION

A. STANDARD OF REVIEW

The Age Discrimination in Employment Act (“ADEA”) provides that it shall be unlawful for an employer “to fail or refuse to hire or to discharge any individual ... because of such individual's age.” 29 U.S.C. § 623(a)(1). The ADEA protects individuals forty years of age or older. 29 U.S.C. § 631(a).

A plaintiff may prove an ADEA claim by direct evidence of discrimination or through the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 256–59, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Harris v. Metro. Gov't of Nashville and Davidson County, Tenn., 594 F.3d 476, 485 (6th Cir.2010). To establish a prima facie case of age discrimination under the McDonnell Douglas/Burdine framework, a plaintiff must establish: (1) he was at least forty years old when the alleged discrimination occurred; (2) he applied for and was qualified for a position for which the employer was seeking applicants; (3) despite his qualifications he was rejected; and (4) the employer selected a substantially younger person for the position. See id. If the plaintiff demonstrates a prima facie case, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its decision. Id. Once the defendant articulates a legitimate nondiscriminatory reason for its action, the burden shifts back to the plaintiff to establish that the defendant's “proffered reason was a mere pretext for intentional age discrimination.” Id. Throughout the case, the plaintiff bears the ultimate burden of proving that age was the “but for” reason for the adverse employment action. Id. (citing Gross v. FBL Fin. Servs., Inc., ––– U.S. ––––, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009); Ky. Ret. Sys. v. EEOC, 554 U.S. 135, 128 S.Ct. 2361, 2366, 171 L.Ed.2d 322 (2008)).

A plaintiff may demonstrate pretext by showing that the defendant's proffered reason (1) lacked any basis in fact, (2) did not actually motivate the defendant's decision, or (3) was an insufficient basis to motivate the adverse employment action. Id. “A defendant's proffered reason cannot be proved to be pretext ‘unless it is shown both that the reason was false, and that discrimination ... was the real reason.’ ” Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)) (emphasis in original).

The above standards also apply to age discrimination claims brought under Ohio Revised Code Chapter 4112. See Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 175, 179, 803 N.E.2d 781 (2004).

B. FAILURE TO HIRE CLAIMS

Abbott argues it is entitled to summary judgment with respect to all twelve of Moore's failure to hire age discrimination claims. With the exception of one position that Abbott cancelled, Abbott hired candidates who were substantially younger than Moore for every position discussed below. Moore asserts that he was qualified for all of the positions, and that in each instance genuine issues of material fact preclude summary judgment for Abbott.

1. Positions filled before Moore applied

Abbott argues that it is entitled to summary judgment in its favor with respect to four of the positions for which Moore applied because the decisions to hire another candidate were made before Moore submitted his applications for the jobs.³ Moore maintains that he can demonstrate both a prima facie case and pretext for all four positions.

The essential facts are uncontroverted. With respect to Requisition No. 29811, hiring manager Kenneth Thornton offered the position to Robert Davidson on May 13, 2005. Thornton Dep. 96, ECF No. 136–25. On May 20, 2005, Abbott opened Requisition No. 29811. Moore applied for the job three days later.

Hiring manager Dave Houston verbally offered the position designated as Requisition No. 29433 to internal candidate Wendy Wilson on March 9, 2005. Defs.' Mot. Summ. J.App. Tab 11, ECF No. 116. Wilson accepted the offer the same day. Id. Houston followed up with an offer letter on March 10, 2005. Id. Tab 12. Wilson began working in the position on March 14, 2005. Abbott opened Requisition No. 29433 on March 15, 2005. Moore applied for the position the next day.

With regard to Requisition No. 29144, hiring manager Houston orally offered the job to Jennifer Miller in late February 2005. Houston Dep. 92, ECF No. 136–5. Abbott posted the Requisition on February 28, 2005. Moore applied for the position on March 2, 2005, and the Requisition remained open until ...