Shelby v. Bank One, NA

58 F. App'x 175
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 4, 2003
DocketNo. 01-3809
StatusPublished
Cited by1 cases

This text of 58 F. App'x 175 (Shelby v. Bank One, NA) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shelby v. Bank One, NA, 58 F. App'x 175 (6th Cir. 2003).

Opinion

BATCHELDER, Circuit Judge.

Plaintiff, Larry Shelby, brought suit against Bank One, his former employer, Bank One Mortgage Company, Wayne Hites, John Wale and Daniel Moening for alleged violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623 et seq., and Ohio’s general employment discrimination statute, Ohio Revised Code § 4112. Shelby appeals the district court’s grant of summary judgment in favor of defendants on all of his claims. We conclude that Shelby’s ADEA claim is time-barred. We further conclude that there is no genuine issue of fact remaining for trial with regard to the state law claim and the defendants are entitled to judgment on that claim as a matter of law. We therefore affirm the judgment of the district court.

BACKGROUND

The facts that follow are undisputed in this record. Shelby has worked in the banking industry in the St. Mary’s, Ohio, area since 1970. He was working for Diamond Savings in 1992 when it merged with Bank One. Bank One then hired him as the St. Mary’s Branch Manager and Assistant Vice President, Community Banking, where he reported to Wayne Hites, who in turn reported to Dan Moening. Beginning in 1994, Shelby’s performance reviews indicated a negative attitude and poor sales. Although he received an overall rating of “Fully Satisfactory” on his 1994 evaluation, Shelby met only three of his fifteen major sales goals that year.

In June of 1995, Hites gave Shelby a written reprimand and placed him on six months’ probation for failing to develop new business, not being a team player, and not being involved in ongoing sales goals and the sales process. In August 1995, Shelby and Hites hired 30-year-old John Wale, who had a strong sales background, as the assistant manager of the St. Mary’s branch.

In 1995, Bank One reorganized the management structure of some of the Ohio [177]*177branches under the supervision of Dan Moening, including Van Wert, Lima and Wapakoneta, replacing the Branch Manager and Assistant Manager positions with the positions of Sales Manager and Service Manager. Although both of these new manager positions carried the title of vice president of the bank, the Service Manager reported to the Sales Manager.1 When Bank One instituted this new management structure in Van Wert, Lima and Wapakoneta, all the Service Managers were over forty-years-old while the Sales Managers were under forty. Of the approximately sixteen branches supervised by Moening that maintained the Branch Manager/Assistant Manager structure, nine had Branch Managers over forty years of age, four of whom were older than Shelby.

In the summer of 1996, Bank One established this new management structure in the St. Mary’s branches, making Shelby the Service Manager and Wale the Sales Manager. This meant Shelby, now 54 years old, reported to Wale, whom he had hired one year earlier. Shelby’s pay, his responsibilities in the area of service and his office space remained the same, but his sales responsibilities were reduced.

Shelby served as the Service Manager for about one year, during which time he had problems with both his sales productivity and his relationship with Wale. Eventually Shelby was given a choice: retire immediately and take a severance package or become a Residential Mortgage Loan Representative for Bank One Mortgage Company for a six-month probationary period, with the right to the same severance package if he were unsuccessful in that position. Shelby interviewed for the Mortgage Loan Representative position and was hired in August of 1997 at no change in salary. After six months, Bank One Mortgage offered Shelby the choice of a permanent position as a mortgage loan representative or retirement with the severance package. Shelby decided to resign and, on advice from counsel, refused the severance package. He then filed a complaint with the EEOC, claiming that he had been constructively discharged on January 30,1998, because of his age.

Shelby filed suit in the Franklin County Court of Common Pleas alleging a violation of Ohio’s discrimination statute. He then dismissed the complaint and filed this action in federal court, claiming that the defendants had demoted him to the position of Service Manager on September 25, 1996, and constructively discharged him after his six month period as a mortgage loan representative. Bank One moved for summary judgment and the district court granted the motion, finding that Shelby had failed to present a prima facie case of discrimination and specifically holding that Shelby was unable to show he was qualified for the positions of branch manager, Service Manager and Sales Manager at Bank One. Shelby timely appealed.

ANALYSIS

We review a district court’s grant of summary judgment de novo, using the same standard under Rule 56(c) used by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999) (en banc). Summary judgment is proper if “the pleadings, depositions, answers to inter[178]*178rogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In reviewing a motion for summary judgment, we view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To withstand summary judgment, the non-movant must present sufficient evidence to create a genuine issue of material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir.1990). A mere scintilla of evidence is insufficient; “there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary judgment is appropriate “against a party who 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).

Turning first to Shelby’s ADEA claim, we conclude that the grant of summary judgment must be affirmed because the claim is clearly time-barred. In his deposition, Shelby was asked to specify the action or actions by the defendants that he claimed were discriminatory:

Q. Ultimately your employment ended; and I assume that you’re claiming that that was based upon an unlawful act, being age discrimination?
A. No. The job change was the discrimination.
Q. All right. When you say the job change, what are you referring to?
A.

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58 F. App'x 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelby-v-bank-one-na-ca6-2003.