Yacko v. Gen. Motors Co.

1

MARK A. YACKO, Plaintiff, v. GENERAL MOTORS COMPANY, et al., Defendants.

No. 1:23-cv-01578-PAB

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

February 28, 2024

MEMORANDUM OPINION AND ORDER

PAMELA A. BARKER, U.S. DISTRICT JUDGE.

This matter comes before the Court upon Defendant Jim Gaeschke's^[1] (“Gaeschke”) Motion to Dismiss Plaintiff Mark A. Yacko's (“Yacko”) Complaint, filed on November 3, 2023. (Doc. No. 10.) On December 4, 2023, Yacko filed a Brief in Opposition to Gaeschke's Motion to Dismiss, and on December 18, 2023 Gaeschke filed a Reply Brief in Support of his Motion. (Doc Nos. 15, 18.) Accordingly, Gaeschke's Motion to Dismiss is ripe for a decision.

For the following reasons, the Court GRANTS IN PART and DENIES IN PART Gaeschke's Motion to Dismiss. (Doc. No. 10.)

I. Background

A. Factual Background

Yacko's Complaint sets forth the following allegations.

Defendant General Motors (“GM”) is a corporation headquartered in Detroit, Michigan, with manufacturing plants headquartered in Cuyahoga County, Ohio. (Doc. No. 1-1 at ¶ 2.) Defendant GM and Defendant Gaeschke are persons and employers within the meaning of Ohio Revised Code § 4112.01(A) and (B). (Id. at ¶¶ 3, 4.)

Yacko is a fifty-nine-year-old white male resident of Medina County, Ohio. (Id. at ¶ 1.) Yacko was hired by GM in 1996 at its Lordstown Plant and became a contract supervisor before being transferred to his most recent job at GM's plant in Parma, Ohio (hereinafter “GM Parma”) as a Group Leader in Maintenance. (Id. at ¶¶ 5, 6.) A Group Leader in Maintenance is responsible for supervising and scheduling the work of 12 maintenance technicians on GM's third shift. (Id. at ¶ 5.)

Yacko was a very highly compensated employee making over $120,000.00/year plus benefits and reasonably expected to retire after at least 30 years at full pension before he was terminated. (Id. at ¶ 18.) In 2022, Yacko's job performance review noted the following:

Mark's greatest strength is his knowledge of the pressroom and his ability to motivate the [union] trades. He has the respect of his team members . . . Mark not only helps our shift perform better, but due to his hard work sets first shift up to get better numbers too. Mark is one of the most knowledgeable persons I've worked with. Another shift lead said this about Mark's impact in department 55 in a recent post, “I call your impact on 3^rd shift as the Yacko Effect! There is nothing you and your team can't work through.”

(Id. at ¶ 23 (alteration in original).) Yacko was never disciplined by GM in almost 3 decades of loyal service to the company and had never been placed on a performance improvement plan (“PIP”). (Id. at ¶ 9.)

GM was offering early retirement buy-outs starting in January 2023. (Id. at ¶ 12.) On January 31, 2023, GM issued the following press release:

GM said it will reduce its staff in 2023, part [sic] of its effort to cut $2 billion in costs over the next two years. But unlike a number of major companies that have announced layoffs in recent months, company officials stressed GM would not be shrinking through layoffs. Instead the reduction would be handled through attrition. GM did not disclose how many jobs might be trimmed, with Jacobson saying the company would end this year “slightly lower” in headcount.....

(Id. at ¶ 14 (emphasis in original).) According to Yacko, “[a]ttrition” means that the motivation to leave the company is in the mind of the employee, not the employer. (Id. at ¶ 15.) Yacko, being a senior manager, was not excluded from consideration as a candidate for GM's companywide attrition plans. (Id.) Yacko alleges that GM's use of manager “attrition” as a planned labor force reduction event makes it the functional equivalent of an “RIF,” i.e., a reduction in force. (Id.) Yacko claims that courts have held that an RIF can, in execution, violate Ohio Revised Code § 4112.02(A) based on age discrimination and “can be illegal for other reasons.” (Id.)

It was disappointing to GM that Yacko did not independently choose to leave the company despite GM's management “[RIF] by way of attrition” strategy. (Id. at ¶ 16.) Indeed, GM claimed that it wanted to reduce overhead costs and, after its attrition strategy failed with respect to Yacko, he “was targeted for outright termination by Gaeschke . . . for an inferred pretextual reason because of his age and high salary, which is a proxy for age discrimination.” (Id.)

Yacko was terminated from his most recent GM employment on or about March 1, 2023, “by Defendant Gaeschke acting for his own interest and that of GM.” (Id. at ¶ 7.) Gaeschke claimed that Yacko was being fired for “behavior performance reasons” and when a demand for an explanation by Yacko was made, GM would not provide one or “offer an honest and reasonable excuse.” (Id. at ¶¶ 8, 19.) According to Yacko, it is therefore clear that Gaeschke created and published a false, defamatory excuse to GM management for his termination for an ulterior purpose. (Id. at ¶¶ 8, 19, 35.)

Yacko was also an at-will employee. (Id. at ¶ 25.) GM had made progressive discipline a benefit of continued employment that Yacko had a right to expect as part of his at-will contract with GM. (Id. at ¶ 28.) Defendants did not provide Yacko with progressive discipline to save his job as was offered to younger employees. (Id. at ¶¶ 9, 24.)^[2] Because GM did not provide Yacko with progressive discipline, in spite of the fact that Yacko did not commit a disciplinary offense to merit it, GM breached a material term of its agreement with Yacko. (Id. at ¶ 29.) Yacko was always eligible for progressive discipline if he committed a disciplinary offense and was ready, willing, and able to work at all times relevant. (Id.)

About one week after Yacko's termination, GM's chief executive officer, Mary Barra, announced that the company was offering retirement buy-outs for managers with five or more years of service. (Id. at ¶ 10.) According to Yacko, “GM had to have created or acted on a preexisting list of eligible managers to carry out this intention, and thus had to have known the ages, rate of pay, and tenure dates of each manager on that list well before acting on it.” (Id.) In addition, “Gaeschke would know or should have known of GM's plan to offer buy-outs to senior managers before he terminated Yacko's employment in March 2023.” (Id. at ¶¶ 7, 11.)

On March 9, 2023, GM admitted the following in a press release:

General Motors said in January it would save $2 billion without planning any layoffs. But on Thursday it said it was looking for workers to leave voluntarily. In a regulatory filing, the automaker said it was looking to save costs through attrition and a voluntary separation program in which eligible employees would get a lump sum payment and other severance based on how long they worked at the company. The buyouts would cost the company $1.5 billion before taxes this year. The voluntary separation program will be offered to all U.S. salaried employees with at least five years of service and global executives that have been with the company for at least two years ....In a statement, the company said that employees are “strongly encouraged to consider” the program.

(Id. at ¶ 13 (emphasis in original).)

GM posted a job opening for Yacko's former position about 30 days after his termination date, “which makes GM's plan for RIF by attrition not legitimate with respect to Yacko.” (Id. at ¶ 17.) By May 8, 2023, Yacko learned that he had been replaced “by an inexperienced younger manager making far less than [Yacko] was, to wit, Roger East.” (Id.)

B. Procedural History

On June 11, 2023, Yacko filed suit against GM and Gaeschke in the Court of Common Pleas of Cuyahoga County, Ohio. (Doc. No. 1-1.) In his Complaint, Yacko sets forth the following three Counts: (1) age discrimination in violation of Ohio Revised Code § 4112.02 against both GM and Gaeschke (Count One); (2) breach of employment contract against both GM and Gaeschke (Count Two); and (3) defamation by libel and slander against Gaeschke (Count Three). (Id. at ¶¶ 33-35.)

On August 14, 2023, Defendant GM^[3] removed Yacko's lawsuit to this Court. (Doc. No. 1.) On November 3, 2023, Gaeschke filed his Motion to Dismiss, seeking dismissal of Yacko's claims against him only. (Doc. No. 10.) On December 4, 2023, Yacko filed a Brief in Opposition, and on December 18, 2023, Gaeschke filed a Reply. (Doc. Nos. 15, 18.)

Accordingly, Gaeschke's Motion to Dismiss is ripe for a decision.

II. Standard of Review

Gaeschke moves to dismiss all of Yacko's claims as asserted against him under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Pursuant to Rule 12(b)(6), the Court accepts Yacko's factual allegations as true and construes the Complaint in the light most favorable to Yacko. See Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). To survive a motion to dismiss under this Rule, “a complaint must contain (1) ‘enough facts to state a claim to relief that is plausible,' (2) more than ‘a formulaic recitation of a cause of action's elements,' and (3) allegations that suggest a ‘right to relief above a speculative level.'” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).

The measure of a Rule 12(b)(6) challenge-whether a complaint raises a right to relief above the speculative level-“does not ‘require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.'” Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008) (quoting Twombly, 550 U.S at 555-56). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to...