[Cite as Tatarunas v. Progressive Cas. Ins. Co., 2025-Ohio-4372.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
VIDAS TATARUNAS, :
Plaintiff-Appellant, : No. 114440 v. :
PROGRESSIVE CASUALTY : INSURANCE CO., ET AL., : Defendants-Appellees.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 18, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-23-980169
Appearances:
Michael T. Conway and Company and Michael Terrence Conway, for appellant.
Jackson Lewis, P.C., Patrick O. Peters, and Jacob S. Kinder, for appellees.
MICHELLE J. SHEEHAN, P.J.:
This is a sex and race discrimination case. Plaintiff-appellant Vidas
Tatarunas (“Tatarunas”) worked for defendant-appellee Progressive Casualty Insurance Co. (“Progressive”) as an information technology (“IT”) manager.
Tatarunas is a white male and alleges that his employment was unlawfully
terminated on account of his race and sex. He filed a complaint against Progressive
alleging race discrimination, sex discrimination, intentional infliction of emotional
distress, breach of contract, and wrongful termination in violation of public policy.
The trial court ultimately granted summary judgment in favor of Progressive.
Tatarunas appeals the trial court’s judgment. Since there are no genuine issues of
material fact to support Tatarunas’s claims, we affirm the trial court’s judgment
granting summary judgment in favor of Progressive.
Factual Background
Tatarunas worked for Progressive from April 2013 through June 2021
as an IT manager. Progressive is an insurance company headquartered in Cuyahoga
County, Ohio. One of Tatarunas’s duties as an IT manager included interviewing
potential candidates for associate manager positions within the company.
Brian Jackson’s Interview
In the spring of 2021, Tatarunas interviewed Brian Jackson
(“Jackson”) for an associate manager position in the company. Jackson began
working for the company in September 2014. Jackson is a male of mixed-race
consisting of Caucasian, Cherokee, and African-American heritage. In 2021 Jackson
applied for an associate manager position with the company. Rebecca Simpson
(“Simpson”), who was the hiring manager, described this position as the “entry level
to the project management job family at Progressive.” Simpson explained that the interview process required prospective candidates to complete two rounds of
interviews. The first round included interviews with two managers, and the second
round of interviews were with two other managers. Jackson was scheduled to
interview with Tatarunas and Simpson, separately, in the first round of interviews.
On April 29, 2021, Tatarunas interviewed Jackson. Following the
interview, Tatarunas emailed Jackson information concerning a project
management professional training course. On May 1, 2021, Jackson sent an email
to Tatarunas, Simpson, and Kelly Davis (“Davis”) (an IT recruiting supervisor with
Progressive). In the email, Jackson stated that the “interview with [Tatarunas] was
the most unprofessionally conducted interview of my entire career.” Jackson
explained that Tatarunas opened the interview by giving Jackson advice that
Tatarunas said he had given his son. Tatarunas then told Jackson his son did not
get the job. Jackson also stated that Tatarunas commented on the picture that
Jackson had attached to his resume and stated, “[I]f your [sic] are good looking
might as well show it off.” Jackson also stated that Tatarunas told him during the
interview that Tatarunas hated that Progressive made him take notes during the
interview process. Jackson also requested that he wanted “the unprofessional and
bias manner in which he was spoken to documented.” Tatarunas responded to
Jackson’s email and apologized to Jackson if he had offended him and noted that he
would take into consideration Jackson’s feedback.
On May 3, 2021, Jackson sent another email to Tatarunas, Simpson,
and Davis. The email was addressed to “Vidas & Team” and stated, in relevant part, “I feel strongly that this entire team could benefit greatly from working to
understand biases and how they can impact leaders and thus employees if left
unconscious and thus unchallenged . . . Diversity of thought is a business imperative,
for innovation to exist.” Jackson further stated, “My experience with this hiring
process has lead [sic] me to the conclusion that there is a [sic] urgent need for real
Diversity and Inclusion work within this part of the IT PM organization.”
Investigation
An investigation was conducted with respect to Jackson’s complaint
to determine whether Tatarunas’s actions violated Progressive’s code of conduct.
Marlene Lauer (“Lauer”), an HR consultant at Progressive, conducted the
investigation. After conducting multiple interviews and reviewing multiple
documents, the investigation concluded “that there were no findings to support a
biased interview for [Jackson.]”
However, the investigation did purport to reveal other instances of
unprofessional behavior by Tatarunas, such as Tatarunas’s giving Jackson
conflicting direction concerning the role for which he was interviewing. With
respect to this point, the report noted “[t]his demonstrated a lack of awareness and
appropriate communication. This is consistent with prior coaching and disciplinary
warnings [Tatarunas] received in the past.” The investigation also revealed that
Tatarunas had received a pre-interview confirmation email from a separate, external
candidate that included a Lithuanian phrase for “thanks” to which Tatarunas
responded to the candidate: “butt kisser. Butt I like it. See you then!!” The investigative report notes that Tatarunas “has received 3 separate
warnings within 5 years, all with a similar theme of communication and leadership
behaviors that don’t meet what is expected of a manager at Progressive.”
Disciplinary History
Throughout his tenure at Progressive, Tatarunas had a documented
disciplinary history where he was disciplined three separate times. Progressive
introduced the following disciplinary history concerning Tatarunas.
1. August 8, 2016 Documented Verbal Warning
Tatarunas was first issued a verbal warning on August 8, 2016. The
documented warning provided, in relevant part, that Tatarunas has “some
leadership behaviors that need improvement, specifically a lack of composure,
inappropriate escalation, and not dealing with conflict with a minimum amount of
noise.” The warning was in relation to a recruiting decision that Tatarunas disagreed
with that resulted “in an aggressive conversation with a peer manager, which caused
her to feel demeaned.” The warning indicated that his performance would be
monitored for 90 days and that “[a]ny further unacceptable behavior of the type
described above will result in further disciplinary action, up to and including
termination of your employment.”
A progress report was issued at the conclusion of the 90-day
monitoring period. The report noted that Tatarunas’s behavior had improved but
listed two additional situations that occurred within the 90-day monitoring period that resulted in the monitoring period to be extended until January 8, 2017. This
warning and monitoring period was closed on January 11, 2017.
2. August 30, 2017 Written Warning
On August 30, 2017, Tatarunas was issued a written warning stating
that Tatarunas has “leadership and communication behaviors that need
improvement, specifically a lack of organizational awareness and appropriate
communication and escalation approaches. This feedback is not new and has been
documented in prior documents and performance evaluations.” The warning listed
numerous incidents concerning Tatarunas’s purported poor communication skills.
Tatarunas was again placed on a 90-day monitoring period, with the warning that
“[a]ny further unacceptable behavior of the type described above will result in
further disciplinary action, up to and including termination of your employment.”
His monitoring period concluded on December 19, 2017.
3. January 30, 2018 Written Warning
Tatarunas received another written warning on January 30, 2018,
noting that Tatarunas has “leadership and communication behaviors that need
improvement, specifically a lack of organizational awareness and communication.”
Tatarunas was advised that he “must exhibit behaviors in which you keep [his]
emotions in check, escalate information appropriately, and clarify the intent, apply
communication filters to better understand the receiving audience, and build
organizational awareness to foster partnership and credibility.” The warning further
stated, “You are damaging your credibility and the credibility of the EPMO with our peer organizations.” Tatarunas was again monitored. This monitoring period
concluded on June 22, 2018.
Termination
Carly Sherrer is an IT group manager for Progressive. She testified
during deposition that she ultimately made the decision to terminate Tatarunas’s
employment. Sherrer explained that Tatarunas “had shown a pattern of making
errors in judgment, and the last instance was one that I discussed with HR and with
my senior managers. As a result, we felt like there was a risk keeping [Tatarunas] in
the position he was in.” Sherrer elaborated that Tatarunas “could put Progressive
in a bad legal position based on how he was handling information and interviews.”
She also noted that “[t]he company took a look at the pattern of unprofessional and,
you know, leadership behavior and lack of judgment overall during his tenure.”
Tatarunas’s employment was terminated in June 2021. Judy Palczynski, a white
female, took over Tatarunas’s position after Tatarunas was terminated.
Complaint and Summary Judgment
On February 25, 2022, Tatarunas filed a complaint in the Cuyahoga
County Court of Common Pleas, Cuyahoga C.P. No. CV-22-960056. Progressive
filed an answer, and on November 22, 2022, Tatarunas filed a notice of voluntary
dismissal, dismissing the case without prejudice.
Tatarunas refiled his case against Progressive in Lorain County Court
of Common Pleas, which was eventually transferred to Cuyahoga County Court of
Common Pleas, alleging race discrimination, sex discrimination, intentional infliction of emotional distress, breach of contract, and wrongful termination in
violation of public policy. The complaint also included claims against Progressive
employee Brian Jackson (“Jackson”) alleging tortious interference and coercion and
obstruction. Tatarunas ultimately voluntarily dismissed the claims against Jackson.
With respect to the remaining claims, the trial court issued a judgment entry noting
that “[i]t is abundantly clear that there is no genuine issue of material fact[,]” and
granted summary judgment in favor of Progressive.
Appeal
Tatarunas filed a notice of appeal from the trial court’s judgment
entry granting summary judgment in favor of Progressive. Tatarunas raises the
following assignments of error:
1. The trial court committed prejudicial and reversible error when it granted the defendant’s motion for summary judgment on the claim for reverse race discrimination.
2. The trial court committed prejudicial and reversible error when it granted the defendant’s motion for summary judgment on the claim for reverse sex discrimination.
3. The trial court committed prejudicial and reversible error when it granted the defendant’s motion for summary judgment on the claim for intentional infliction of emotional distress.
4. The trial court committed prejudicial and reversible error when it granted the defendant’s motion for summary judgment on the claim for wrongful termination in violation of Ohio public policy.
5. The trial court committed prejudicial and reversible error when it granted the defendant’s motion for summary judgment on the claim for breach of contract to pay a bonus. These issues were fully briefed by both parties, and an oral argument was held on
May 6, 2025.
On June 5, 2025, prior to this court issuing a decision in this case, the
United States Supreme Court released its decision in Ames v. Ohio Dept. of Youth
Servs., 605 U.S. 303 (2025). In Ames, the United States Supreme Court altered the
burden of proof for a plaintiff in a reverse-discrimination case with respect to
demonstrating a prima facie case to support their claim. Pursuant to Ames,
majority-group plaintiffs are no longer subject to a heightened standard of proof.
See id.
In light of Ames, we ordered the parties to provide supplemental
briefing to discuss the effect, if any, Ames had on Tatarunas’s reverse-discrimination
claims. Both parties filed supplemental briefs discussing the United States Supreme
Court’s decision in Ames.
Law and Argument
Summary-Judgment Standard
We review a trial court’s grant of summary judgment de novo.
Warthog Mgmt. LLC v. Fares, 2024-Ohio-2065, ¶ 17 (8th Dist.). Pursuant to
Civ.R. 56(C), a party is entitled to summary judgment if “the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence,
and written stipulations of fact, if any, timely filed in the action, show that there is
no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” “The party moving for summary judgment bears the burden of demonstrating that no material issues of fact exist for trial.” Edvon v.
Morales, 2018-Ohio-5171, ¶ 17 (8th Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280,
292 (1996).
Summary judgment is appropriate where the record provides (1)
there is no genuine issue of material fact; (2) the moving party is entitled to
judgment as a matter of law; and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the nonmoving party, who is entitled to
have the evidence construed most strongly in his or her favor. Univ. School v. M.F.,
2025-Ohio-170, ¶ 11 (8th Dist.), quoting Bohan v. McDonald Hopkins, L.L.C., 2021-
Ohio-4131, ¶ 19 (8th Dist.), citing Horton v. Harwick Chem. Corp., 1995-Ohio-286,
paragraph three of the syllabus.
First and Second Assignments of Error
In his first and second assignments of error, Tatarunas alleges the
trial court erred in granting Progressive’s motion for summary judgment on
Tatarunas’s claims for reverse race discrimination and reverse sex discrimination.
Since these claims involve a similar analysis of facts and law, they will be addressed
together.
A. Applicable Law
R.C. Ch. 4112 governs discrimination actions in Ohio.
R.C. 4112.02(A) provides, in relevant part, that it is an unlawful discriminatory
practice “[f]or any employer, because of the race . . . [or] sex . . . of any person, to
discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of
employment, or any matter directly or indirectly related to employment.” In
reviewing claims of employment discrimination pursued under state law, Ohio
courts look to federal antidiscrimination caselaw. Dove v. Lakewood, 2025-Ohio-
453, ¶ 34 (8th Dist.), citing Nelson v. Univ. of Cincinnati, 2017-Ohio-514, ¶ 31 (10th
Dist.), citing Coryell v. Bank One Trust Co. N.A., 2004-Ohio-723, ¶ 15; see also
Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm.,
66 Ohio St.2d 192, 196 (1981) (federal caselaw interpreting Title VII of the Civil
Rights Act is generally applicable to cases involving alleged violations of R.C. Ch.
4112).
“[A] plaintiff alleging discrimination bears the initial burden of
setting forth a prima facie case of discrimination by using either direct or indirect
evidence.” Glemaud v. MetroHealth Sys., 2018-Ohio-4024, ¶ 53 (8th Dist.), citing
Chang v. Univ. of Toledo, 480 F.Supp.2d 1009, 1013 (N.D. Ohio 2007). Direct
evidence of discrimination is “‘evidence which, if believed, requires the conclusion
that unlawful discrimination was at least a motivating factor in the employer’s
actions.’” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003),
quoting Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921
(6th Cir. 1999). “As a practical matter, rarely will there be direct evidence from the
lips of an employer proclaiming racial animus.” Glemaud at ¶ 54, citing Robinson
v. Runyon, 149, F.3d 507, 513 (6th Cir. 1998). Indirect evidence, on the other hand,
“‘is proof that does not on its face establish discriminatory animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred.’” Glemaud
at ¶ 55, quoting Wexler at 570.
McDonnell Douglas’s Burden-Shifting Framework
Tatarunas has not presented any direct evidence of discrimination.
Rather, Tatarunas claims that based on the evidence he has presented, a jury could
infer discrimination was the motivating factor for his termination. “In the absence
of any direct evidence, a plaintiff’s claim of employment discrimination is analyzed
under the burden-shifting framework established by the United States Supreme
Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973).” Dove at ¶ 35, citing
Boutros v. Canton Reg. Transit Auth., 997 F.2d 198, 202-203 (6th Cir. 1993).
Generally, in order to establish a prima facie case of discrimination
under McDonnell Douglas, a plaintiff must establish that “(1) he is a member of a
protected class; (2) he suffered an adverse employment action; (3) he was qualified
for the position lost or not gained; and (4) the position remained open or was filled
by a person not of the protected class.” Chenevey v. Greater Cleveland Regional
Transit Auth., 2013-Ohio-1902, ¶ 23 (8th Dist.), citing McDonnell Douglas at 802.
With respect to a claim of “reverse” discrimination, prior to the
United States Supreme Court’s decision in Ames, 605 U.S. 303, for the prima facie
case set forth above, the Sixth Circuit imposed a heightened standard on plaintiffs
of a majority class. In reverse discrimination actions, the first prong required a
plaintiff to show “‘background circumstances [to] support the suspicion that the
defendant is that unusual employer who discriminates against the majority.’” Id., quoting Zambetti v. Cuyahoga Community College, 314 F.3d 249, 255 (6th Cir.
2002). The fourth prong was also different, requiring the plaintiff to “show that he
was treated differently than similarly situated employees of a different race.” Id.
The United States Supreme Court’s decision rejected the heightened
burden that had been placed upon plaintiffs alleging reverse discrimination. In
doing so, the Court was clear, “the standard for proving disparate treatment under
Title VII does not vary based on whether or not the plaintiff is a member of a
majority group.” Ames at 1546. “By establishing the same protections for every
‘individual’—without regard to that individual’s membership in a minority or
majority group—Congress left no room for courts to impose special requirements on
majority-group plaintiffs alone.” Id. Relying on this principle, the Court specifically
rejected the “background circumstances” requirement as set forth above. See id. at
1547 – 1548.
In light of the Ames decision, we review Tatarunas’s claim of reverse
discrimination as we would any other discrimination claim. If Tatarunas can
establish a prima facie case of discrimination under the McDonnell Douglas
framework, there is a presumption that Progressive unlawfully discriminated
against him, and the burden shifts to Progressive to produce evidence that its actions
were based on legitimate nondiscriminatory reasons. Chenevey at 25, citing Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). If Progressive
produces a legitimate nondiscriminatory reason for terminating Tatarunas’s
employment, the burden would then switch back to Tatarunas to show that Progressive’s stated reason is merely a pretext for unlawful discrimination; but the
ultimate burden of persuasion remains at all times with Tatarunas. Dove, 2025-
Ohio-453, at ¶ 37 (8th Dist.), citing Chenevey at 25.
B. Analysis
1. Reverse Race Discrimination
It is undisputed that the second and third prongs of Tatarunas’s
prima facie case for race discrimination have been established. And in light of Ames,
605 U.S. 303, the first factor, whether the plaintiff is a member of a protected class
is no longer applicable, since the Court made clear that the prima facie case is the
same for all individual plaintiffs, regardless of the group they are a member.
Notably, in its supplemental briefing to this court Progressive claims that Tatarunas
“cannot establish the fourth element of his prima facie case of either race or sex
discrimination.” As such, the parties dispute whether the trial court properly
granted summary judgment because Tatarunas failed to establish a prima facie case
of discrimination. Progressive also argues that even if Tatarunas had established a
prima facie case, Progressive had a legitimate, nondiscriminatory reason for
terminating Tatarunas.
The United States Supreme Court has recognized that “the first step
of the McDonnell Douglas framework–the prima facie burden–is ‘not onerous.”
Ames at 1545, quoting Tex. Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). A plaintiff may satisfy his/her burden by presenting evidence “‘that she
applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.’” Id.,
quoting Burdine at 253.
In order to satisfy the fourth prong of a prima facie case for
discrimination, the plaintiff must demonstrate that “the position remained open or
was filled by a person not of the protected class.” Chenevey, 2013-Ohio-1902, at ¶
23 (8th Dist.).
Neither party disputes that the person responsible for terminating
Tatarunas’s employment, Carly Scherrer, is white, which makes his claims of racial
discrimination less plausible. See Drummond v. IPC Internatl., 400 F.Supp.2d 521,
532 (E.D.N.Y. 2005), citing Tolliver v. Community Action Comm. to Help the
Economy, Inc., Cache, 613 F.Supp.1070, 1074 (S.D.N.Y. 1985). Tatarunas has not
directed this court to any person involved in his termination that was of a different
race than himself. It is also undisputed that after he was terminated his position
was filled by a person of the same race.
In support of his claim that he was discriminated against based on
his race is an email that Jackson sent to Tatarunas, Simpson, and Davis on May 3,
2021, following an interview Jackson had with Tatarunas.1 There is no indication
1 The email reads, in relevant part:
Thank you Vidas & Team,
I feel strongly that this entire team could benefit greatly from working to understand biases and how they can impact leaders and thus employees if left unconscious and thus unchallenged. I suggest the entire 7 module that the bias Jackson complained of in this email was “racial” bias. Rather, when
asked about this email during his deposition, Jackson rejected the implication that
the bias discussed in the email was racial. Jackson testified, in relevant part:
Q: Then you go on to talk about these diversity and inclusion programs and websites for people to look at. The bias you are talking about is based on diversity and inclusion, correct? . . .
...
[Jackson]: Yes, right. Understanding our own unconscious biases, so that we can manage those biases in a professional environment.
Q: The unconscious bias you are speaking to is your black race, correct?
[Jackson]: I never said that.
(* * *)
Q: You are the one that wrote diversity and inclusion. What has to be diverse and who has to be included?
[Jackson]: Don’t I say diversity of thought is a business imperative?
Q: Um-hum.
[Jackson]: What is racial about that?
Creating an Inclusive Environment e-learning series for leaders in general, with special emphasis on module 6 Providing Opportunity which goes over the imperative for leaders to be aware of and challenge their biases when evaluating talent. Diversity of thought is a business imperative, for innovation to exist.
My experience with this hiring process has lead me to the conclusion at there is a urgent need for real Diversity and Inclusion work within this part of the IT PM organization. I am happy to help any way I can.
... ...
Q: When you are talking about diversity and inclusion in the workplace, you are talking about people of color and minorities and women being hired, right? . .
[Jackson]: No.
Q: Then what are you talking about?
[Jackson]: I state clearly here diversity of thought.
Furthermore, Jackson is of mixed-race heritage. Tatarunas,
Simpson, and Davis are white. Even if we were to assume that the bias of which
Jackson was referring to was racial in nature, this is not evidence that Progressive
terminated his employment based on race.
There is nothing in the record from which an inference can be made
that Progressive terminated Tatarunas because he was white. Particularly in light of
the fact that he was replaced by a person of the same race and he was terminated by
a person of his same race. As such, Tatarunas failed to present sufficient evidence
in support of an inference that he was unlawfully terminated based on his race and
therefore failed to present a prima facie case of race discrimination.
2. Reverse Sex Discrimination
It is undisputed that the second and third prongs of Tatarunas’s
prima facie case for sex discrimination have been established. And for the same
reasons stated above, the first prong of the prima facie case is no longer applicable.
And again, in its supplemental briefing to this Court, Progressive focuses solely on the fourth prong. Progressive also argues that even if Tatarunas had established a
prima facie case, Progressive had a legitimate, nondiscriminatory reason for
Failure to Move for Summary Judgment on the Reverse Sex- Discrimination Claim
We begin our discussion by addressing Tatarunas’s claim that
Progressive did not seek full dismissal of the reverse sex-discrimination claim in its
motion for summary judgment and, therefore, the trial court erred in dismissing the
claim in full. Tatarunas’s assertion is belied by the record. In its motion for
summary judgment, Progressive specifically requested the trial court to grant
summary judgment on Tatarunas’s reverse sex-discrimination claim, alleging that
Tatarunas had failed to support his prima facie case. Progressive also claimed that
it had presented a lawful, nondiscriminatory reason for terminating Tatarunas.
Since Progressive moved for summary judgment with respect to
Tatarunas’s reverse sex-discrimination claim, the trial court’s decision granting
summary judgment in favor of Progressive with respect to this claim is properly
before this court for review.
Prima Facie Case for Sex Discrimination
Similar to demonstrating a prima facie case for race discrimination,
in order to establish the fourth prong of his prima facie case for sex discrimination,
Tatarunas must establish that “the position remained open or was filled by a person
not of the protected class.” Chenevey, 2013-Ohio-1902, at ¶ 23 (8th Dist.). It is undisputed that the person responsible for terminating
Tatarunas’s employment, Carly Scherrer, is a female. And that Judy Palczynski, a
white female, took over Tatarunas’s position after Tatarunas was terminated. Here,
Tatarunas was fired by a female, a member of a separate class, and he was replaced
by another female. As such, Tatarunas satisfied his burden demonstrating a prima
facie case of sex discrimination.
3. Legitimate, Nondiscriminatory Reason for Termination
Even if Tatarunas had made a prima facie case for race and sex
discrimination, the burden shifts back to Progressive to produce evidence to show a
legitimate, nondiscriminatory reason for terminating him. Here, “the burden is one
of production, not persuasion, and is satisfied if [Progressive] presents evidence
‘which, taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action.’” Dove, 2025-Ohio-453, at ¶ 42
(8th Dist.), quoting Kenner v. Grant/Riverside Med. Care Found., 2017-Ohio-1349,
¶ 28 (10th Dist.).
Progressive presented evidence demonstrating that it had a
legitimate, nondiscriminatory reason for terminating Tatarunas’s employment. As
discussed above, Progressive produced three separate disciplinary warnings that
Tatarunas received within a five-year period. Progressive also introduced the
investigative report conducted as a result of Jackson’s complaints. While the report
concluded that there was insufficient evidence to demonstrate that Tatarunas was
biased during the Jackson interview, the investigation revealed additional unprofessional conduct by Tatarunas. As such, Progressive has produced evidence
of a legitimate, nondiscriminatory basis to terminate Tatarunas’s employment.
Having produced evidence of a legitimate, nondiscriminatory basis
for terminating Tatarunas’s employment, “[t]he burden now shifts to [Tatarunas] to
demonstrate, by a preponderance of the evidence, that the reason [Progressive]
offered is a pretext for discrimination.” Dove at ¶ 45, citing McDonnell Douglas, 411
U.S. at 807. In order to demonstrate pretext, Tatarunas “must ultimately prove both
that the employer’s stated reason for the adverse employment decision ‘was not the
real reason for its action, and that the employer’s real reason’ was discrimination.”
Peters v. Highland Hills, 2024-Ohio-2366, ¶ 41 (8th Dist.), quoting E.E.O.C. v. Ford
Motor Co., 782 F.3d 753, 767 (6th Cir. 2015). At the summary-judgment stage, a
plaintiff can create a genuine issue of fact “by producing evidence that the
employer’s stated reason (1) had no basis in fact, (2) did not actually motivate the
employer’s actions, or (3) was insufficient to motivate the employer’s actions.”
Peters at ¶ 41, citing Briggs v. Univ. of Cincinnati, 11 F.4th 498, 515 (6th Cir. 2021).
Tatarunas alleges that Progressive used his documented disciplinary
history and the investigation conducted by Lauer as a pretext to fire him in order to
protect itself from a potential race discrimination lawsuit from Jackson. Tatarunas
again directs this court to the May 1, 2021 email sent by Jackson advising “Vidas and
team” that they “could benefit greatly from working to understand biases and how
they can impact leaders and thus employees if left unconscious and thus
unchallenged.” As discussed above, this email does not indicate that the biases Jackson was referring to were racial biases and, when he was interviewed in his
deposition, Jackson rejected the implication that the bias discussed in the email was
racial. Nor does this email indicate bias on the basis of sex.
Tatarunas also references an email purportedly sent by Jackson on
December 8, 2023, alleging that Jackson had been subjected to “overt racism and
discrimination by management[.]” However, this email was sent almost two-and-
a-half years after Tatarunas had been terminated. It gives no insight as to what
Progressive knew about Jackson’s intentions with respect to filing a lawsuit when
Progressive terminated Tatarunas’s employment in June 2021.
Tatarunas has presented no evidence indicating that, prior to his
termination, Jackson believed he had been racially discriminated against and was
intending to file a discrimination lawsuit against Progressive. Nor has he presented
any evidence that Progressive believed a lawsuit from Jackson was forthcoming.
“‘Mere conjecture that [the] employer’s explanation is a pretext for intentional
discrimination is an insufficient basis for denial of summary judgment.’” Olive v.
Columbia/HCA Healthcare Corp., 2000 Ohio App. LEXIS 914, *25 (8th Dist. Mar.
9, 2000), quoting Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir.
1988).
With respect to the sex-discrimination claim, Tatarunas claims that
Jackson accused Tatarunas, Davis, and Simpson of bias in Jackson’s May 1, 2021
email, but only Tatarunas was fired. But as will be discussed below, Tatarunas was in a substantially different situation than Davis or Simpson. Particularly with
respect to their disciplinary history.
First, the emails from Jackson to Tatarunas, Davis, and Simpson were
premised on the interview Jackson had with Tatarunas. When reviewing the emails
as a whole, it is clear that Jackson’s claims stemmed from his interview with
Tatarunas and the way he was purportedly treated by Tatarunas in the interview. It
is undisputed that neither Davis nor Simpson were involved in Jackson’s first
interview. Further, the investigation into Jackson’s claims of bias, which was
conducted by Maurene Laurer, concluded “that there were no findings to support a
Second, Tatarunas had a lengthy and consistent disciplinary history
within Progressive leading up to his termination. While Tatarunas downplays the
significance of his prior disciplinary history, prior to the unprofessional conduct
revealed during the investigation of bias allegations in the Jackson interview,
Tatarunas had received three separate verbal and written warnings within a five-
year time period. As the investigative report recognized, they each had “a similar
theme of communication and leadership behaviors[.]” The investigation, which was
conducted with respect to Jackson’s complaints, found no indication of bias, yet did
find “further evidence of unprofessional behavior in a separate interaction with an
external candidate[.]” Notably, the investigation revealed that Tatarunas had
received a pre-interview confirmation email from a separate, external candidate that
included a Lithuanian phrase for “thanks” to which Tatarunas responded to the candidate: “butt kisser. Butt I like it. See you then!!” There is nothing in the record
indicating that Simpson or Davis had a similar disciplinary history.
The record fails to demonstrate that Tatarunas’s sex was a motivating
reason for his termination. Davis and Simpson were not in a similar position as
Tatarunas when he was terminated by Progressive. Tatarunas had a number of
disciplinary actions. The record reflects that neither Davis nor Simpson had a
disciplinary history. Davis and Simpson were also not involved in the interview that
resulted in Jackson’s claims of bias and his claims of unprofessionalism with respect
to his interview with Tatarunas. As such, Tatarunas has failed to demonstrate that
Progressive’s legitimate, nondiscriminatory reason for his termination was
pretextual.
After a thorough review of the record, we cannot conclude that
material issues of fact exist regarding Tatarunas’s race and sex-discrimination
claims. Tatarunas presents no evidence to suggest that he was terminated by
Progressive on account of his race. Nor has he presented any evidence that
Progressive terminated him because he was a male, rather than his disciplinary
history. As such, Progressive had a legitimate, nondiscriminatory reason to
terminate his employment. Tatarunas has failed to demonstrate that Progressive’s
reason for doing so was pretextual. Therefore, his first two assignments of error are
overruled. Third Assignment of Error
In his third assigned error for review, Tatarunas alleges that the trial
court erred when it granted Progressive’s motion for summary judgment on his
claim for intentional infliction of emotional distress.
In order to establish a claim for intentional infliction of emotional
distress, Tatarunas must demonstrate that (1) Progressive intended to cause
Tatarunas serious emotional distress; (2) Progressive’s conduct was extreme and
outrageous, and (3) Progressive’s conduct was the proximate cause of Tatarunas’s
serious emotional distress. Nikooyi v. Nikooyi, 2022-Ohio-3239, ¶ 15 (8th Dist.),
citing Phung v. Waste Mgt., Inc., 1994-Ohio-389.
Moreover, to support an intentional infliction of emotion distress
claim, “the plaintiff bears the burden of proving that he sustained a severe emotional
injury.” Nikooyi at ¶ 17, citing Allen v. Pirozzoli, 2016-Ohio-2645, ¶ 11 (8th Dist.).
“‘A plaintiff can prove severe and debilitating emotional injury through the
testimony of an expert or lay witnesses acquainted with the plaintiff who have
observed significant changes in the emotional or habitual makeup of the plaintiff.’”
Id., quoting id.
Tatarunas has failed to demonstrate that Progressive’s conduct in
terminating his employment was “extreme and outrageous.” The Supreme Court of
Ohio has defined “extreme and outrageous conduct” as “conduct that goes beyond all possible bounds of decency and is so atrocious that it is ‘utterly intolerable in a
civilized community.’” Id. at ¶ 16, quoting Yeager v. Local Union 20, 6 Ohio St.3d
369, 375 (1983). As such, “‘[p]arties cannot generally be held liable for intentional
infliction of emotional distress for having performed an act they were legally entitled
to perform.’” Mangelluzzi v. Morley, 2015-Ohio-3143, ¶ 49 (8th Dist.), quoting
Morrow v. Reminger & Reminger Co. LPA, 2009-Ohio-2665, ¶ 49 (10th Dist.).
“Unfortunately, people get fired every day, and suffer mental anguish as a result.
However, absent evidence of extreme and outrageous conduct in the termination of
an employee, no cause of action for Intentional Infliction of Emotional Distress will
arise.” Cox v. Kettering Med. Ctr., 2005-Ohio-5003, ¶ 33 (2d Dist.).
As discussed above, Progressive had a legitimate, nondiscriminatory,
reason for terminating Tatarunas’s employment based on Tatarunas’s disciplinary
history while at Progressive. Tatarunas has failed to present any additional evidence
that Progressive’s actions, legally terminating an at-will employee, are either
extreme or outrageous. As such, Progressive’s conduct cannot be considered
extreme and outrageous to support a claim for intentional infliction of emotional
distress.
Furthermore, Tatarunas failed to present any evidence establishing
that he suffered a severe emotional injury as a result of his termination. He did not
present any expert opinion or lay witness testimony concerning any significant
changes in his emotional or habitual makeup. Rather, the only evidence presented
is his own claims that he suffered serious mental distress after being fired. However, self-serving statements alone are not sufficient to establish that he suffered severe
emotional stress. Nikooyi, 2022-Ohio-3239, ¶ 17 (8th Dist.) (recognizing that a
plaintiff’s own self-serving statements are insufficient to establish he suffered a
severe emotional injury). See also Burks v. Tolbert, 2009-Ohio-486, ¶ 20 (8th Dist.)
(holding that a self-serving affidavit is insufficient to overcome summary judgment
with respect to this element of intentional infliction of emotional distress).
Tatarunas failed to demonstrate that Progressive’s decision to
terminate his employment was extreme and outrageous, nor did he present any
evidence, outside his own self-serving statements, that he suffered a severe
emotional injury as a result. For these reasons, the trial court did not err when it
granted Progressive’s motion for summary judgment with respect to his intentional
infliction of emotional distress claim. Tatarunas’s third assignment of error is
overruled.
Fourth Assignment of Error
In his fourth assignment of error, Tatarunas alleges that the trial
court erred when it granted Progressive’s motion for summary judgment on his
claim for wrongful termination in violation of public policy.
“The employment-at-will doctrine, the rule that general or indefinite
hiring is terminable at the will of either party for any cause or no cause, is the
traditional rule in Ohio.” House v. Iacovelli, 2020-Ohio-435, ¶ 11, citing Collins v.
Rizkana, 73 Ohio St.3d 65, 67-68 (1995). The tort of wrongful termination in violation of public policy is an exception to this rule. Id., citing Greeley v. Miami
Valley Maintenance Contrs., 49 Ohio St.3d 228, 234 (1990).
In order to prevail on his wrongful termination in violation of public
policy claim, Tatarunas must establish four elements:
(1) that a clear public policy existed and was manifested either in a state or federal constitution, statute or administrative regulation or in the common law (“the clarity element”), (2) that dismissing employees under circumstances like those involved in [Tatarunas’s] dismissal would jeopardize the public policy (“the jeopardy element”), (3) that [Tatarunas’s] dismissal was motivated by conduct related to the public policy (“the causation element”), and (4) that [Progressive] lacked an overriding legitimate business justification for the dismissal (“the overriding-justification element”).
House at ¶ 12.
“The clarity and jeopardy elements are questions of law to be
determined by the court.” Id., citing Collins at 70. “The causation and overriding-
justification elements are, however, questions to be determined by the finder of
fact.” Id. We begin our analysis by considering the clarity element before
determining whether it is necessary to address the remaining elements of his claim.
In order to satisfy the clarity element of a wrongful-termination
claim, “‘a terminated employee must articulate a clear public policy by citation to
specific provisions in the federal or state constitution, federal or state statutes,
administrative rules and regulations, or common law.’” Sygula v. Regency Hosp. of
Cleveland E., 2016-Ohio-2843, ¶ 32 (8th Dist.), quoting Rebello v. Lender
Processing, Servs., 2015-Ohio-1380, ¶ 29 (8th Dist.). “‘A public policy sufficient to
overcome the presumption in favor of employment at will is not limited to instances in which the statute expressly forbids termination, but may be discerned from
legislation generally, or from other sources of law.’” Id., quoting id.
Tatarunas contends that there is a public policy against terminating
an employee who has threatened litigation or to preempt potential litigation. In
support, he cites to Ohio Const., art. I, § 16, which provides: “All courts shall be
open, and every person, for an injury done him in his land, goods, person, or
reputation, shall have remedy by due course of law, and shall have justice
administered without denial or delay. Suits may be brought against the state, in
such courts and in such manner, as may be provided by law.”
Courts in Ohio have recognized that it is against public policy for
employers to terminate employees for exercising their right to consult an attorney.
Chapman v. Adia Servs., 116 Ohio App.3d 534, 544 (1st Dist. 1997) (holding that “it
is repugnant to the public policy of this state for employers to terminate employees
for exercising their right to consult a lawyer.”) But appellate courts throughout Ohio
“have not uniformly expanded this public policy to include employees who sue their
employer.” Vinsant v. WNB Group LLC, 2024 U.S. Dist. LEXIS 133381, *13 – 14
(S.D.Ohio July 29, 2024). See Taylor v. Volunteers of Am., 2003-Ohio-4306, ¶ 12
(1st Dist.) (declining to expand the policy in Chapman concerning an employee’s
right to consult an attorney and holding that there is no public policy protecting an
employee from termination that files suit against their employer). But see Jenkins
v. Parkview Counseling Ctr., 2001 Ohio App. LEXIS 133, *23 (7th Dist. Jan. 3, 2001)
(recognizing it is against public policy for an employer to terminate an employee in retaliation for a previous lawsuit the employee brought against the employer).
Tatarunas fails to direct us to any caselaw from the Ohio Supreme Court or the
Eighth District Court of Appeals recognizing a clear public policy precluding an
employer from terminating an employee for threatening litigation against the
employer in order to preempt potential litigation. In fact, our court has previously
noted that “the Ohio Supreme Court has declined to create an exception to the
common law employment-at-will doctrine for an employer's alleged violation of the
Ohio Constitution.” Takach v. Am. Med. Tech., 128 Ohio App.3d 457, 465 (8th Dist.
1998), citing Provens v. Stark Cty. Bd. of Mental Retardation & Developmental
Disabilities, 64 Ohio St.3d 252, 261 (1992).
In support of his claim, Tatarunas directs us to an email sent by
Sherrer on June 22, 2021, memorializing a conversation she had with Tatarunas. In
the email, Sherrer notes that towards the end of her conversation with Tatarunas,
Tatarunas stated that “he better not be getting a final written [sic] or he will sue.
Said he knows others who have had success suing Progressive.” In rejecting the type
of public policy advocated for by Tatarunas, the First District cautioned that “[i]f
filing a suit were a protected decision . . . there would be a danger that an employee,
anticipating an adverse job action due to poor performance, would file suit against
his employer as a ‘preemptive strike’ against termination.” Taylor at ¶ 12. As such,
Tatarunas’s statements, documented in the email sent by Sherrer on June 22, 2021,
is exactly the type “preemptive strike” the Taylor Court warned of. As such, these
statements by Tatarunas as set forth in Sherrer’s email are not protected by public policy, and therefore do not fall under an exception to the employment-at-will
doctrine.
Tatarunas also claims that he was fired because his coworker,
Jackson, had accused him of being racially biased that could subject Progressive to
legal action.2 Tatarunas does not direct us to any cases that support the proposition
that public policy precludes an employer from firing an employee in fear that
another employee may pursue litigation against the employer. Each of the cases
Tatarunas cites involves a plaintiff who either commenced litigation against their
employer, threatened to commence litigation against their employer, or conferred
with legal counsel prior to being terminated. In short, Tatarunas has failed to
demonstrate a clear public policy precluding an employer from terminating an
employee that may have subjected the employer to potential legal actions taken, or
that may be taken by, another employee.
Tatarunas has failed to demonstrate the clarity element of his
wrongful-termination claim that Progressive terminated him in violation of clear
Ohio public policy. Since we have determined that Progressive was entitled to
summary judgment as a matter of law with respect to the clarity element of his claim
for wrongful termination in violation of public policy, it is unnecessary to address
2 As discussed above, there is nothing in the record indicating that Jackson had accused
Tatarunas of racial bias. And when later asked in a deposition whether the bias he had accused Tatarunas was racial, Jackson rejected the assertion. the remaining three elements. Accordingly, Tatarunas’s fourth assignment of error
is overruled.
Fifth Assignment of Error
In his fifth, and final, assignment of error, Tatarunas alleges that the
trial court erred when it granted Progressive’s motion for summary judgment on his
claim for breach of contract to pay a bonus. As an employee of Progressive,
Tatarunas participated in Progressive’s Gainshare plan. This plan is a bonus plan
available to Progressive employees. The terms of the plan provide that to be eligible
to receive a payment under the plan, a participant must be employed with the
company on November 30 of the plan year. Tatarunas was a participant in the 2021
Progressive Gainshare plan. Tatarunas claims that he was entitled to a performance
bonus earned pursuant to a 2021 Progressive Gainshare plan that he was a
participant in prior to termination.
In order to prevail on his claim for breach of contract, Tatarunas has
the burden of proving four elements: (1) the existence of a contract; (2) he performed
under the contract; (3) a breach of the contract by Progressive; and (4) that he
suffered damages or loss as a result. Rogers v. Natl. City Corp., 2009-Ohio-2708,
¶ 15 (8th Dist.), citing Jarupan v. Hanna, 2007-Ohio-5081, ¶ 18 (10th Dist.).
“The construction of a written contract is a matter of law that is
reviewed de novo.” Rockside-77 Props., L.L.C. v. Partners Fin. Group, L.L.C., 2018-
Ohio-4112, ¶ 14 (8th Dist.), citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d
241 (1978), paragraph one of the syllabus. “Generally, courts presume that the intent of the parties to a contract resides in the language they chose to employ in the
agreement.” Shifrin v. Forest City Ents., Inc., 64 Ohio St.3d 635, 638 (1992), citing
Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130 (1987). As such, we “‘need not go
beyond the plain language of the agreement to determine the parties’ rights and
obligations if a contract is clear and unambiguous.’” Rockside-77 Props., L.L.C. at
¶ 14, quoting Maines Paper & Food Serv., Inc. v. Eanes, 2000 Ohio App. LEXIS
4480, * 6 (8th Dist. Sept. 28, 2000).
Attached to its motion for summary judgment, Progressive submitted
a purported copy of the Progressive Corporation 2021 Gainshare Plan. Section 9 of
the plan provides, in relevant part:
Qualifications; Leave of Absence; Withholding. Unless otherwise determined by the Committee, and except as expressly provided herein, in order to be entitled to receive an Annual Gainshare Payment for a Plan year, the participant must be an active officer or regular employee of the Company on November 30 of the Plan year (“Qualification Date”). An individual (i) who is hired on or after December 1 of any Plan year or (ii) whose employment terminates for any reason prior to the Qualification Date is not entitled to an Annual Gainshare Payment for that Plan year. Annual Gainshare Payments are not earned until paid.
By the plain terms of this agreement, a participant in the 2021
Gainshare plan is not entitled to payment under this plan if their employment
terminates for any reason prior to November 30, 2021.
Tatarunas’s employment with Progressive ended in June 2021,
months before the qualification date set forth in the terms of the agreement. By the plain language of the plan, Tatarunas failed to comply with this specific term of the
agreement.
Ohio appellate courts have addressed similar employment bonus
agreements. See Rusu v. Carter-Jones Lumber Co., 2023-Ohio-2927, ¶ 15 (11th
Dist.)(recognizing that the employer did not breach a written bonus agreement
since the plaintiff was not an employee on the date the bonuses were distributed
where the express term of a written bonus agreement provided that an employee
would be eligible for a bonus only if the employee was still employed at the time the
bonus was distributed); Airtron, Inc. v. Tobias, 2021-Ohio-2213 (2d Dist.). The
facts in Airtron are similar to the facts before us. An employee had left employment
prior to the payout of the bonus. The employee argued that he had earned the bonus
as part of his compensation package. Id. at ¶ 47. The Second District determined
that the terms of the bonus plan required the employee to be employed by Airtron
when the bonus was paid out. The court concluded, “[I]t is not the responsibility of
this court to ‘rewrite the parties’ contract in order to provide for a more equitable
result.’” Id. at ¶ 48, quoting Hope Academy Broadway Campus v. White Hat Mgt.,
L.L.C., 2015-Ohio-3716, ¶ 36-37.
Pursuant to the plain terms set forth in the 2021 Progressive
Gainshare plan, Tatarunas was not entitled the annual Gainshare Payment since he
was not employed with Progressive on the qualification date set forth in the plan.
Therefore, there is no genuine issue of material fact with respect to Tatarunas’s breach-of-contract claim. As a result, Tatarunas’s final assignment of error is
Conclusion
Based on our review of the record and reviewing all of the evidence in
a light most favorable to Tatarunas, we are unable to conclude that Tatarunas has
created a genuine issue of material fact in any of the claims he presented to the trial
court. Accordingly, Progressive is entitled to summary judgment as a matter of law.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________________ MICHELLE J. SHEEHAN, PRESIDING JUDGE
ANITA LASTER MAYS, J., CONCURS; SEAN C. GALLAGHER, J., CONCURS (WITH SEPARATE OPINION)
SEAN C. GALLAGHER, J., CONCURRING:
I fully concur with the majority opinion and agree that the trial court’s
decision to grant summary judgment in favor of Progressive should be affirmed. I
write to further address our review of Tatarunas’s claims of discrimination. The United States Supreme Court recently held in Ames v. Ohio Dept.
of Youth Servs., 605 U.S. 303 (2025), that the Sixth Circuit’s “background
circumstances” rule, which requires members of a majority group to satisfy a
heightened evidentiary standard on a Title VII disparate-treatment claim, is not
consistent with Title VII’s text or the Supreme Court’s precedents. Ames at 306. As
the Supreme Court stated, “Title VII’s disparate-treatment provision draws no
distinctions between majority-group plaintiffs and minority-group plaintiffs” and
“imposes the same prima facie burden on majority-group plaintiffs that it imposes
on minority-group plaintiffs.” Ames at 309, 311. The Supreme Court recognized
that its decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), sets
forth the “traditional framework for evaluating disparate-treatment claims that rest
on circumstantial evidence[,]” Ames at 306, and the Supreme Court reiterated the
familiar three-step burden-shifting inquiry that was laid out in McDonnell Douglas.
Ames at 308-309. For purposes of the Ames decision, the Supreme Court
“assume[d] without deciding that the McDonnell Douglas framework applies at the
summary-judgment stage of the litigation.” Ames at 308, fn. 2.
The concurring opinion authored by Justice Thomas in Ames
highlights “the problems that arise when judges create atextual legal rules and
frameworks[,]” such as the “background circumstances” rule and the McDonnell
Douglas framework. Ames at 313 (Thomas, J., concurring). As stated by Justice
Thomas, “[j]udge-made doctrines have a tendency to distort the underlying
statutory text, impose unnecessary burdens on litigants, and cause confusion for the courts.” Id. However, “[n]otwithstanding [the Supreme Court’s] steps to limit
McDonnell Douglas, it is now the framework that ‘courts typically apply’ ‘to
determine whether the plaintiff has proffered sufficient evidence to survive
summary judgment.’” Ames at 321 (Thomas, J., concurring), quoting Jackson v.
VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 776 (6th Cir. 2016). It remains a
viable evidentiary tool.
As recognized by the majority in Ames, “McDonnell Douglas merely
aims to provide a sensible, orderly way to evaluate the evidence that bears on the
critical question of discrimination.” (Cleaned up.) Ames at 308, fn. 2. Moreover,
“[t]he McDonnell Douglas framework aims to ‘bring the litigants and the court
expeditiously and fairly to th[e] ultimate question’ in a disparate-treatment case —
namely, whether ‘the defendant intentionally discriminated against the plaintiff.’”
Ames at 308, quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981).
In this case, the parties presented arguments under the McDonnell
Douglas framework. As the majority herein determines, a review of the record
shows Tatarunas failed to meet his initial burden of establishing a prima facie case
for his claim of race discrimination. Though I also question whether he has
presented enough evidence to support an inference of discriminatory motive for his
claim of sex discrimination, I agree with the analysis provided by the majority of the
“judge-made” factors for establishing a prima facie case, which were argued by the
parties herein. However, “the precise requirements of a prima facie case can vary depending on the context and were never intended to be rigid, mechanized, or
ritualistic.” (Cleaned up.) Ames, 605 U.S. at 311. Indeed, the “‘facts necessarily will
vary’” and “‘the prima facie proof required’ can therefore differ from case to case.”
Id., quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). Regardless,
even if Tatarunas met the initial burden, as the majority finds, Progressive presented
evidence of a legitimate nondiscriminatory reason for terminating Tatarunas based
on his disciplinary history, and Tatarunas failed to present sufficient evidence to
demonstrate pretext. Thus, Tatarunas cannot succeed under the McDonnell
Douglas framework.
The majority opinion has reviewed Tatarunas’s claims of race and sex
discrimination as we would any other discrimination claim. Ultimately, he has not
proffered sufficient evidence upon which reasonable minds could conclude
Progressive intentionally discriminated against him. Further, he has otherwise
failed to present sufficient evidence to create any genuine dispute on his claims. I
agree with the majority that upon the record before us, no genuine issues of material
fact exist, and I concur with the determination that Progressive is entitled to
summary judgment as a matter of law on all claims.