Katherine Merhulik v. Weltman, Weinberg & Reis Co. LPA ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0203n.06
No. 21-3773
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
May 19, 2022
DEBORAH S. HUNT, Clerk
)
KATHERINE MERHULIK,
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
WELTMAN, WEINBERG & REIS CO. LPA, )
Defendant-Appellee. )
OPINION
)
)
Before: SILER, CLAY, and MURPHY, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Katherine Merhulik appeals the district court’s order
granting summary judgment for Defendant Weltman, Weinberg & Reis Co. (“Weltman”) in this
action asserting violations of federal and state anti-discrimination and anti-retaliation laws under
the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1), (d) (“ADEA”) and Ohio’s
state law corollary, Ohio Rev. Code Ann. §§ 4112.02(I), .14. For the reasons set forth below, this
Court AFFIRMS.
I. BACKGROUND
On July 13, 2009, at the age of fifty-two, Plaintiff Katherine Merhulik, now known as
Katherine Leeds, began employment at Defendant Weltman, a law firm, as a legal collector.
Within a year of employment, Merhulik was transferred from the downtown Cleveland office to
the Brooklyn Heights office. With that office change, the scope of her job duties also shifted; she
began to focus on the Ohio Attorney General’s portfolio, which included complicated student loans
No. 21-3773, Merhulik v. Weltman, Weinberg & Reis Co. LPA
and tax collections. Management of this portfolio proved onerous for Merhulik. While Merhulik
sometimes met the monthly collections expectations, measured by calls made and revenue
collected, she more often struggled to meet the departmental quantitative goals.
On February 9, 2010, her supervisor at Weltman issued Plaintiff a documented verbal
warning for unsatisfactory job performance for failure to achieve monthly goals for November
2009, December 2009, and January 2010 and placed her on a performance improvement plan.
Another verbal warning came on June 1, 2011, when Merhulik failed to follow the applicable
procedures required to comply with federal law, which resulted in an unauthorized payment being
deducted from an individual’s bank account. On July 6, 2011, Merhulik received a written warning
for poor performance for failing to meet goals for the prior six months and a low three-month
collections average. Another verbal warning for performance came on June 8, 2012, instructing
Merhulik to increase the percentage of her collections goal for the following month. This Merhulik
failed to do, as she achieved only 75.40% of her collections goal, falling short of the expected
range of 85–90% of debts collected. As a result, Weltman issued a written warning to Plaintiff on
July 3, 2012.
Her annual performance evaluations summarized these shortcomings. In her first written
performance review on February 25, 2010, Merhulik received a rating of two out of a possible five
on the “productivity” and “monthly quotas” categories, which correlated with a rating of “did not
meet the standard.” Her 2010 mid-year evaluation led to placement on a performance
improvement plan. More of the same came in Plaintiff’s July 2011 annual review, in which she
again received a two of five in the productivity category. It noted she “has had challenges with
meeting her goal requirements recently” and that she has struggled with communication and with
“handling high-stress situations[.]” (July 31, 2011 Performance Evaluation, R. 35-3, PageID #
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451). Her last annual review as a Weltman collector came in August 2012. In that evaluation,
Merhulik received a rating of two in the “job knowledge, skills & abilities” section because, per
her supervisor, “Kathy struggles to use the knowledge and training that she has been given to
effectively complete her job. She struggles to bring her route current[,] which ultimately affects
her performance.” (Aug. Evaluation, R. 35-3, PageID # 456). Defendant again placed Plaintiff
on a performance improvement plan.
In late 2012, Defendant posted an opening for a position called Quality Assurance Call
Monitor in the Collections Strategy Services Department. Merhulik decided to apply, and, on
November 24, 2012, she assumed that position. Plaintiff characterizes this job change as a
promotion; Defendant points out, however, that the job change occurred because Merhulik applied
to and obtained an open position. Most importantly, for present purposes, once Plaintiff moved
out of the collector position in November 2012, that marked the last time she ever worked as a
collector, whether for Defendant or any other organization. Merhulik’s new role at Weltman
proved more apt for her, and she met or exceeded all job expectations in her 2014 and 2015
performance evaluations.
Plaintiff’s employment at Weltman ended on September 1, 2016, when Merhulik, then age
fifty-nine, had her position eliminated in a company-wide reduction in force. Sixteen of the
twenty-three terminated employees, including Merhulik, were over the age of forty. Plaintiff’s job
duties were distributed to the remaining employees in the department, who were ages forty-four,
forty-nine, and fifty.
On November 2, 2017, Weltman posted a job opening for a collector position listed as Job
Requisition Number 2547 (“First Posting”). Merhulik, then age sixty and no longer employed at
Weltman, applied by submitting a resume and answering pre-screen questions. Thirty-three
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applicants responded to the First Posting, but Weltman ultimately withdrew the posting and did
not hire anyone to fill it. However, Weltman interviewed one candidate and extended that person
an offer, but it later rescinded the offer and removed the posting after the candidate failed a
background check.
On January 2, 2018, the firm listed a new posting for a Collections Specialist position
designated Job Requisition Number 2569 (“Second Posting”). “The entry[-]level collector
position is one of the lower-level, higher turnover positions, similar to a clerical position.” (Pl.’s
Resp., R. 41, PageID # 1558). The resume Plaintiff submitted to the First Posting and the Second
Posting showed she had no work experience between her September 2016 separation from
Weltman and her January 2018 application. Plaintiff did not receive a phone interview and was
not selected for the position in the Second Posting. Defendant says that it did not select Merhulik
for a phone interview after determining that her prior work experience at Weltman showed that
she was not a good candidate. Ultimately, Weltman hired a different applicant for the Collections
Specialist position (“chosen candidate”).
Procedural History
On February 27, 2017, Plaintiff filed suit against Defendant in the Cuyahoga County Court
of Common Pleas, alleging that Weltman terminated her based on her age when it included her in
the September 2016 reduction in force. Plaintiff also alleged that Weltman’s reduction in force
had a disparate impact on older employees. The case proceeded through discovery, but Plaintiff
dismissed the case without prejudice in October 2018 before the court could rule on Weltman’s
motion for summary judgment. Plaintiff refiled in October 2019 in the same state court. On
February 24, 2021, that court entered summary judgment in favor of Defendant on all of Plaintiff’s
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claims and dismissed the case in its entirety, with prejudice. The Eighth District Court of Appeals
affirmed that decision.
On October 28, 2018, Plaintiff filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) regarding Weltman’s decision not to hire her for the Second Posting. The
EEOC investigated the allegations of age discrimination and retaliation but dismissed the claims
on March 3, 2020, concluding:
Evidence reveals that [Merhulik] w[as] not hired for the Collections Specialist position
because of numerous performance reprimands [Merhulik] received when [she was]
previously employed by [Weltman] as a Collector. There is insufficient evidence to
show that [she] w[as] denied because of [her] age or in retaliation for engaging in a
protected activity.
(EEOC Letter, R. 35-3, PageID # 465).
On May 29, 2020, Plaintiff filed the instant action in federal district court. Merhulik set
forth a seven-count complaint under the ADEA, Ohio’s state equivalent, and Title VII of the Civil
Rights Act of 1964. On August 13, 2020, Defendant filed a Rule 12(b)(6) motion to dismiss Count
Two (unlawful use of hiring criteria in violation of the ADEA); Count Four (unlawful retaliation
in violation of Title VII, 42 U.S.C. § 2000e-3(a)); and Counts Five and Six (age discrimination
under Ohio Rev. Code Ann. §§ 4112.02, .99), for failure to state a claim upon which relief can be
granted. The district court granted this motion in part, dismissing Counts Two, Four, and Six.
Count Five was left undisturbed and joined the then-unchallenged counts, specifically: Count One
(disparate treatment age discrimination in violation of the ADEA); Count Three (unlawful
retaliation in violation of the ADEA); and Count Seven (retaliation under Ohio Rev. Code Ann.
§§ 4112.02(I), .99).
Defendant Weltman then sought summary judgment to dismiss Plaintiff’s case in full.
Plaintiff filed an initial response in opposition, accompanied by a motion for additional discovery
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and a request to file a supplemental response following further discovery. The district court
ordered limited additional discovery and permitted supplemental briefing. In its review of the
supplemental response and reply, the district court granted Defendant’s motion for summary
judgment. Plaintiff’s timely appeal followed.
II. DISCUSSION
A. Standard of Review
We review the district court’s grant of summary judgment de novo. Sloat v. Hewlett-
Packard Enter. Co., 18 F.4th 204, 209 (6th Cir. 2021). Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). Conversely, “[s]ummary judgment is
inappropriate when the evidence raises a genuine issue about a material fact, ‘that is, if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.’” Wright v. Murray
Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). We “view all evidence in the light most favorable to the nonmoving
party.” Id. (citing another source). A district court’s decision regarding the scope of discovery is
reviewed under an abuse of discretion standard. B & H Med., LLC v. ABP Admin., Inc., 526 F.3d
257, 268 (6th Cir. 2008).
B. Analysis
On appeal, Plaintiff lodges three challenges to the district court’s opinion. She alleges the
district court erred in failing to find that Weltman’s decision not to hire her as a Collections
Specialist under the First and Second Job Postings was because of unlawful age discrimination or
in retaliation for her filing suit in the Court of Common Pleas. She also contends that the district
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court should have drawn an adverse inference against Defendant Weltman. Each argument is
reviewed below, seriatim.
1. Age Discrimination
The ADEA prohibits an employer from “fail[ing] or refus[ing] to hire . . . any individual
or otherwise discriminat[ing] against any individual . . . because of such individual’s age.”
29 U.S.C. § 623(a)(1). Section 4112.14(A) of the Ohio Revised Code provides: “No employer
shall discriminate in any job opening against any applicant . . . aged forty or older who is physically
able to perform the duties and otherwise meets the established requirements of the job[.]” Age
discrimination claims under the Ohio statute are assessed under the same standards as federal
claims brought under the ADEA. Minadeo v. ICI Paints, 398 F.3d 751, 763 (6th Cir. 2005). The
burden of persuasion is on the plaintiff to show that “age was the ‘but-for’ cause of the employer’s
adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).
In Counts One and Five of Plaintiff’s complaint, Merhulik alleges that through its failure
to hire her, Defendant Weltman discriminated against her based on age in violation of the ADEA
and Ohio law. Because Merhulik relies on circumstantial evidence, not direct evidence, of age
discrimination, this Court evaluates her claim under the three-step burden-shifting framework
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that familiar
framework, a plaintiff must show that she: (1) was at least forty years old at the time of the alleged
discrimination; (2) faced an adverse employment action; (3) was otherwise qualified for the
position; and (4) was refused hire in preference of a significantly younger individual. Grosjean v.
First Energy Corp., 349 F.3d 332, 335 (6th Cir. 2003); McDonnell Douglas, 411 U.S. at 802.
If a plaintiff makes out a prima facie case, the burden shifts to the employer to proffer a
legitimate, non-discriminatory reason for the adverse employment action. If the employer carries
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that burden, the burden shifts back to the plaintiff to establish that the employer’s reason was a
pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
To demonstrate pretext, a party must show that the stated reason for the adverse action: (1) had no
basis in fact; (2) was not the actual reason; or (3) was insufficient to explain it. Imwalle v. Reliance
Med. Prods., Inc., 515 F.3d 531, 545 (6th Cir. 2008). “[A] reason cannot . . . be a pretext for
discrimination unless it is shown both that the reason was false, and that discrimination was the
real reason.” Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th Cir. 2012) (quoting St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). Thus, regardless of which rebuttal method
a plaintiff uses, “[s]he always bears the burden of producing sufficient evidence from which the
jury could reasonably reject the defendant’s explanation and infer that the defendant intentionally
discriminated against [her].” Id. (citation and internal quotation marks omitted).
In this case, Plaintiff argues Weltman discriminated against her based on age when it
refused to hire her as a Collections Specialist under the First and Second Job Postings.
To start, we assess Plaintiff’s arguments related to the First Posting. The district court
correctly found that Plaintiff could not demonstrate a prima facie case of discrimination in
connection with her application for this posting. There is no evidence that Merhulik was considered
for and denied the position or that a substantially younger person was chosen instead. In fact, that
position went unfilled because Weltman withdrew the job posting. Regardless of why the First
Posting was pulled, be it because of evolving staffing needs or because the one interviewed
candidate failed the background check, it makes no difference since the circumstances wholly lack
anything to support an inference of discrimination. Given that Defendant pulled the job listing,
Merhulik cannot demonstrate that she was refused hired in preference of a substantially younger
person, which is the hallmark of ADEA discrimination claims. The district court properly found
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that Merhulik could not establish a prima facie case of discrimination in connection to Plaintiff’s
application for the First Posting.
Plaintiff’s assertions concerning the Second Posting fare better at the outset but meet the
same fate as the foregoing age discrimination claim. Assuming, as the district court did, for
purposes of argument, that Merhulik established a prima facie case of discrimination, she has not
shown that Weltman’s stated reason for its failure to hire “was pretext and that age was the real
reason” for it. Geiger v. Tower Auto., 579 F.3d 614, 626 (6th Cir. 2009). In the hopes of showing
pretext, Merhulik contends she was more qualified for the position than the chosen candidate,
thereby supporting an inference of age discrimination. She makes three sub-arguments, all of
which fail.
For one, to show that a plaintiff is qualified, “[she] must prove that [s]he was performing
h[er] job at a level which met h[er] employer’s legitimate expectations.” McDonald v. Union Camp
Corp., 898 F.2d 1155, 1160 (6th Cir. 1990) (internal quotation marks and citation omitted).
Although Plaintiff goes to great lengths to argue that she met the minimum job requirements of
the entry-level position, accepting the bare minimum is not the legal standard for pretext. White
v. Columbus Metro. Hous. Auth., 429 F.3d 232, 245 (6th Cir. 2005) (“[I]t was reasonable for
CMHA to conclude that while White was minimally qualified, her qualifications did not rise to the
level of quality . . . for which CMHA was searching[.]”). The record shows that Merhulik received
five corrective actions for unsatisfactory performance. Periods of improvement were often
bookended with less-than-satisfactory work. Her time at Weltman fell short of Defendant’s
objective expectations of her employment, so when Merhulik re-applied years after her separation
from Weltman, her previous poor performance was not somehow transfigured into sterling
credentials. See McDonald, 898 F.2d at 1160 (“McDonald was simply not performing to Union
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Camp’s satisfaction.”). Given her prior performance, Plaintiff has not demonstrated that
Defendant’s proffered reason for its failure to hire her hid a discriminatory motive.
What is more, Merhulik cannot present any evidence that would gainsay Weltman’s
contention that the chosen candidate had more recent and relevant experience in collections. The
chosen candidate had over three years of experience in complex collections, outpacing Merhulik’s
less complex and more outdated work. Merhulik’s time in collections ended in 2012, whereas the
chosen candidate had more than three years of recent experience in complex collections. The fact
that Merhulik had more years of collections experience than the chosen candidate does not require
submitting her claims to a jury. This Court has long held, “[s]o long as its reasons are not
discriminatory, an employer is free to choose among qualified candidates[]” when making hiring
decisions. Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987) (citations omitted).
Merhulik’s last argument concerning the Second Posting is that she was more qualified
than the chosen candidate because the chosen candidate was subject to a non-compete and had
previously been terminated for sexual harassment. Yet, as Plaintiff acknowledges, Weltman did
not know that the chosen candidate had these potentially disqualifying factors in her background
before hiring her. Weltman has demonstrated that it hired whom it believed to be the best-qualified
candidate at the time of hiring. Even with a prima facie case supposedly made out, Merhulik is
unable to prove that Defendant’s articulated, non-discriminatory justification for choosing a
different candidate was pretextual. In sum, the district court did not err in finding Weltman was
entitled to judgment in its favor on Plaintiff’s age discrimination claims.
2. Retaliation
The ADEA and Ohio state law prohibit retaliation against private sector employees who
complain of age discrimination. 29 U.S.C. § 623(d); Ohio Rev. Code Ann. § 4112.01(I). A prima
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facie case of retaliation under the ADEA and Ohio’s age discrimination statute requires a plaintiff
to prove: (1) she engaged in a protected activity; (2) the defending party was aware of the activity;
(3) the defending party took adverse employment action against the employee; and (4) there is a
causal connection between the protected activity and adverse action. Blizzard v. Marion Tech.
Coll., 698 F.3d 275, 288 (6th Cir. 2012); Greer-Burger v. Temesi, 879 N.E.2d 174, 180 (Ohio
2007). As with age discrimination claims, if a plaintiff establishes a prima facie case and the
employer articulates a legitimate, non-retaliatory reason for the materially adverse action, the
plaintiff must then show that the employer’s proffered reasons for taking the adverse action were
a pretext for prohibited retaliatory conduct.
The protected activity in question in Merhulik’s case is the filing of a lawsuit against
Weltman in state court, which was generally contemporaneous with her application to the Second
Job Posting. We begin, as the district court did, with the assumption that Plaintiff has shown a
prima facie case. Although her ability to make out such a prima facie case is doubtful on the
causation prong, Plaintiff nevertheless would be unable to show that Weltman’s decision not to
hire her constituted pretextual retaliation. As discussed previously, Defendant demonstrated a
legitimate, non-retaliatory reason for not hiring Merhulik, namely, her difficulties meeting
collection goals and her lack of recent collection experience. Merhulik offered no evidence
demonstrating pretext, let alone that retaliation was the but-for cause of the adverse hiring decision.
Therefore, the district court did not err in finding that Plaintiff failed to carry her ultimate burden
of persuasion on the issue of retaliation such that a jury could find in her favor.
3. Adverse Inference
Finally, Plaintiff submits that the district court should have drawn an adverse inference
against Weltman for failing to produce all ordered discovery, including: (1) specific interview data
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for the First and Second Job Posting; (2) interview notes and the complete interview guide for the
interviewed candidate for the First Posting, and the chosen candidate for the Second Posting;
(3) identification of the candidates who applied for the First and Second Job Postings; and
(4) analytics data for the First and Second Job Posting maintained by Indeed.com. The general
rule is that “[w]here relevant information . . . is in the possession of one party and not provided,
then an adverse inference may be drawn that such information would be harmful to the party who
fails to provide it.” McMahan & Co. v. Po Folks, Inc., 206 F.3d 627, 632 (6th Cir. 2000) (internal
quotation marks and citation omitted).
A review of the parties’ discovery disputes at the district court is helpful in connection with
Plaintiff’s argument that the district court should have drawn an adverse inference against
Weltman. After Defendant filed its motion for summary judgment, Plaintiff asked the district
court to order that Weltman produce additional discovery allegedly needed before Merhulik could
respond to the defense motion; the district court ordered Merhulik to clarify which items she
sought, noting “[i]t is unclear . . . whether any necessary discovery remains outstanding,” and “a
number of items [requested] may or may not exist.” (Order, R. 50, PageID # 2089). Plaintiff then
filed a list of thirty-six items, and the district court ordered Weltman to provide any responsive
information within ten days. Defendant did so. For example, Weltman provided the dates on
which job candidates submitted a resume for the First Posting, the outcome of their application,
and whether they were interviewed by telephone or in-person. However, Defendant explained that
several of the requested items were not responsive and thus fell outside of the scope of the district
court’s order. Other information, such as the Indeed.com analytics, did not exist or was not
otherwise in Defendant’s possession.
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This Court now turns to the final question on appeal, i.e., whether the district court should
have drawn an adverse inference against Defendant for failing to produce necessary discovery.
The record demonstrates that Defendant complied with its discovery obligations and that an
adverse inference was not warranted. In the absence of proof that unproduced discovery materials
were destroyed, spoiled, or withheld in bad faith, Merhulik’s argument that the district court erred
by failing to draw an adverse inference must be denied. See Akiona v. United States, 938 F.2d
158, 161 (9th Cir. 1991).
An adverse inference is not warranted for another, more fundamental reason. Such an
inference is used to forgive a plaintiff’s inability to establish a prima facie case due to a defendant’s
intransigence. Clay v. United Parcel Serv., 501 F.3d 695, 716 (6th Cir. 2007). Plaintiff has not
shown that any of the documentation referenced above would create a genuine issue of material
fact or prove a required element of her claims. Automated Sols. Corp. v. Paragon Data Sys., Inc.,
756 F.3d 504, 514 (6th Cir. 2014) (citation omitted) (“[T]he party seeking an adverse inference
must adduce sufficient evidence from which a reasonable trier of fact could infer that the destroyed
[or unavailable] evidence would have been of the nature alleged by the party affected by its
destruction.”). In sum, Plaintiff has not shown that Defendant failed to provide responsive
documentation or that it withheld such information in bad faith. She also has not demonstrated
that her efforts to establish a prima facie case or issues of material fact were hampered by
Defendant’s alleged failure to timely and fully produce discovery. Given that the district court
ordered Defendant to provide additional discovery, coupled with Merhulik’s difficulty on appeal
identifying what missing evidence is required to make out her claims, the district court did not err
by failing to draw an adverse inference against Defendant.
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III. CONCLUSION
For the reasons set forth above, this Court AFFIRMS the judgment of the district court.
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