*

The Honorable Robert Holmes Bell, Chief United States District Judge for the

Western District of Michigan, sitting by designation.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 05a0485n.06

Filed: June 9, 2005

No. 04-3023

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

KEITH E. HAUSLER, )

)

Plaintiff-Appellant, ) ON APPEAL FROM THE

 ) UNITED STATES DISTRICT

v. ) COURT FOR THE SOUTHERN

) DISTRICT OF OHIO

GENERAL ELECTRIC CO. )

and WILLIAM M. BECK, )

)

Defendants-Appellees, )

BEFORE: GIBBONS and ROGERS, Circuit Judges; BELL, District Judge.*

BELL, District Judge. Plaintiff Keith Hausler ("Hausler") appeals the district court's

order granting summary judgment in favor of Defendants General Electric Company

("General Electric") and William Beck ("Beck") on Hausler's age discrimination claims.

I.

Hausler had been employed by General Electric for over twenty years when he and

his supervisor, Beck, had an argument. Hausler yelled "Fuck you. That's bullshit," at Beck.

Three days later Beck terminated Hausler for insubordination. Hausler was forty-nine years

old when he was terminated. Hausler was replaced by a thirty-nine year old man.
No. 04-3023 2

Hausler v. General Electric

Hausler filed suit against General Electric and Beck alleging disability discrimination

in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and Ohio

Revised Code §§ 4112.02 and 4112.99, age discrimination in violation of the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and Ohio Revised Code

§ 4112.14, and violation of Ohio's public policy against disability and age discrimination.

The district court granted Defendants' motion for judgment on the pleadings on

Hausler's public policy claim and granted Defendants' motion for summary judgment on

Hausler's federal and state disability and age discrimination claims. Hausler appeals the

dismissal of his public policy claim and the entry of summary judgment on his age

discrimination claims. Hausler has not appealed the dismissal of his disability discrimination

claims.

II.

The district court entered summary judgment on Hausler's age discrimination claims

on the basis that Hausler failed to produce evidence from which a juror could reasonably find

that Hausler's age was a motivating factor in his termination.

We review a district court's grant of summary judgment de novo, applying the same

Rule 56(c) standard applied by the district court. Daniels v. Woodside, 396 F.3d 730, 734

(6th Cir. 2005) (citing Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc)).

Summary judgment is appropriate where "the pleadings, depositions, answers to

interrogatories, 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 judgment
No. 04-3023 3

Hausler v. General Electric

as a matter of law." FED. R. CIV. P. 56(c). In reviewing a district court's grant of summary

judgment, we view the evidence and draw all reasonable inferences in the light most

favorable to the non-moving party. Minadeo v. ICI Paints, 398 F.3d 751, 756 (6th Cir.

2005).

Hausler agrees with the district court that the burden shifting analysis set forth in

McDonnell Douglas v. Green, 411 U.S. 792 (1973), applies to both his federal ADEA and

his Ohio statutory age discrimination claims. See Majewski v. Automatic Data Processing,

Inc., 274 F.3d 1106, 1115 (6th Cir. 2001) (citing Bucher v. Sibcy Cline, Inc., 738 N.E.2d 435,

442 (Ohio App. 2000)). See also Plumbers & Steamfitters Joint Apprenticeship Comm. v.

Ohio Civil Rights Comm'n, 421 N.E.2d 128 (Ohio 1981). Hausler also agrees that the district

court correctly determined that he had made out a prima facie case of age discrimination. He

contends, however, that the district court erred in granting summary judgment because there

was sufficient evidence to create a material issue of fact for trial as to whether his employer's

articulated reason for discharging him was a pretext for impermissible age discrimination.

A plaintiff can refute the legitimate, nondiscriminatory reason that an employer offers

to justify an adverse employment action "by showing that the proffered reason (1) has no

basis in fact, (2) did not actually motivate the defendant's challenged conduct, or (3) was

insufficient to warrant the challenged conduct." Wexler v. White's Fine Furniture, Inc., 317

F.3d 564, 576 (6th Cir. 2003) (en banc) (quoting Dews v. A.B. Dick Co., 231 F.3d 1016, 1021

(6th Cir. 2000)). Hausler contends that he did produce evidence to refute General Electric's
No. 04-3023 4

Hausler v. General Electric

proffered basis for his dismissal, but that the district court failed to construe the evidence and

draw all reasonable inferences from the evidence in the light most favorable to him.

Hausler's first contention is that the district court failed to credit his evidence that

General Electric failed to follow its policy of investigating the factual circumstances before

terminating employees. The district court found no evidence that General Electric had a

policy of investigating acts of insubordination prior to discipline. Hausler has not directed

us to any evidence to the contrary. The only evidence Hausler directs us to is testimony that

investigations are normally performed prior to termination. None of the testimony, however,

involved situations where the misconduct was committed in the presence of and directed at

the very supervisor who made the termination decision. Hausler has not produced evidence

that an investigation was required or that it would even have been meaningful under the

circumstances of his termination. Accordingly, Hausler's evidence that investigations are

normally performed does not refute the employer's stated justification for Hausler's

termination.

Hausler's second contention is that the district court failed to consider the rampant use

of profanity in the workplace that did not result in discipline. The district court distinguished

Hausler's conduct of yelling "Fuck you. That's bullshit," directly at his supervisor from other

uses of profanity in the workplace. Hausler has not attempted to show that the use of

profanity by co-workers that did not result in discipline was of comparable seriousness to his

statement to Beck.
No. 04-3023 5

Hausler v. General Electric

Hausler's third contention is that the district court failed to consider that what Beck

told his superiors was radically different from what occurred, and from what Beck now

admits occurred, and that these shifting justifications are evidence of pretext. "Shifting

justifications" may call into question the credibility of those justifications. See Cicero v.

Borg-Warner Automotive, Inc., 280 F.3d 579, 592 (6th Cir. 2002) (holding that by showing

that defendants' justification for firing changed over time, plaintiff had shown genuine issue

of fact that defendants' proffered reason was not only false, but that the falsity was a pretext

for discrimination.). Thurman v. Yellow Freight Sys., 90 F.3d 1160, 1167 (6th Cir. 1996),

am. on other grounds, 97 F.3d 833 (6th Cir. 1996) ("An employer's changing rationale for

making an adverse employment decision can be evidence of pretext."). However, the record

does not support Hausler's assertion that the reasons given for his termination have changed.

Beck told Hausler that he was terminating him for insubordination. This is the same

explanation Beck gave his superiors and the same explanation he gave at his deposition.

Although there is some conflicting evidence in the record about what led up to the argument

between Beck and Hausler and what was said during that argument, those inconsistencies do

not alter the fact that Hausler directed profanity at Beck, and they do not raise an issue of fact

as to the credibility of the stated reason for Hausler's termination.

Hausler's fourth contention is that the district court erred in its finding that Beck's

comments about a younger workforce were too isolated and ambiguous to be of any

probative value. According to Hausler, these ageist comments made by the decisionmaker
No. 04-3023 6

Hausler v. General Electric

prior to the firing decision are direct evidence of age discrimination or at least circumstantial

evidence of pretext.

In order to determine whether allegedly discriminatory remarks are relevant to a claim

that an adverse employment decision was motivated by impermissible age considerations,

we look not only to the speaker's role in the employment decision, but also to the substance

of the discriminatory remarks. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,

355 (6th Cir. 1998). "Isolated and ambiguous comments are too abstract, in addition to being

irrelevant and prejudicial, to support a finding of age discrimination." Id. (internal quotation

marks and citations omitted).

The district court noted that Hausler could not recall with any specificity when the

comments were made or how often they were made. The district court also noted that there

was no evidence that Beck's age-related comments were directed at Hausler. Moreover,

Beck's comments about wanting a younger, more talented, more aggressive, and more mature

workforce were ambiguous because they mixed a desire for youth with a desire for maturity.

In Carter v. Univ. of Toledo, 349 F.3d 269, 276 (6th Cir. 2003), we held that remarks

allegedly made in direct response to the plaintiff's inquiries as to why she was not rehired

could not be regarded as isolated. Unlike the remarks in Carter, there is no evidence in this

case that Beck's remarks were related to Hausler or to his termination. Moreover, unlike the

remarks at issue in Scott v. Goodyear Tire & Rubber Co., 160 F.3d 1121, 1129 (6th Cir.

1998), and Ercegovich, Beck's remarks do not "on their face strongly suggest that the speaker

harbors a bias against older workers." Ercegovich, 154 F.3d at 355. On de novo review of
No. 04-3023 7

Hausler v. General Electric

the record we agree with the district court that these comments were isolated and ambiguous

and that they were legally insufficient to create a material issue of fact as to whether

Hausler's termination was motivated by age discrimination.

Finally, Hausler contends that the district court did not give appropriate weight to

evidence that Beck disproportionately disciplined older workers. Hausler presented evidence

of only three other employees over forty years of age who received unfavorable treatment

from Beck. The district court, citing Simpson v. Midland-Ross Corp., 823 F.2d 937, 943 n.7

(6th Cir. 1987), and Brocklehurst v. PPG Industries, Inc., 123 F.3d 890, 897 (6th Cir. 1997),

held that the evidence was insufficient to create an issue of fact as to pretext because the

statistical sample was too small and because the majority of employees under Beck's

supervision were over forty years old. Hausler has not attempted to challenge the district

court's analysis on this issue.

The district court opinion thoroughly discussed the pertinent case law on the issue of

pretext and clearly and comprehensively explained why the evidence of record did not create

an issue of fact for trial. Upon de novo review we are satisfied that the district court correctly

determined that there was no evidence to support a reasonable inference that General

Electric's explanation for Hausler's termination was pretextual. Hausler did not produce

sufficient evidence to show that General Electric's justification for his termination, i.e.,

insubordination, was pretextual. He did not produce evidence to suggest that the justification

had no basis in fact, did not actually motivate the termination, or was insufficient to warrant

his termination. See Wexler, 317 F.3d at 576. The evidence Hausler relies on is simply
No. 04-3023 8

Hausler v. General Electric

insufficient to raise an issue of fact as to pretext. No reasonable jury could find from the

evidence of record that age was a determining factor in General Electric's decision to

discharge Hausler. Accordingly, we affirm the district court's entry of summary judgment

on the discrimination claims for the reasons stated in district court's excellent opinion.

III.

Hausler also appeals the district court's order granting Defendants' motion for partial

judgment on the pleadings pursuant to FED. R. CIV. P. 12(c) and dismissing Hausler's claim

that he was discharged in violation of Ohio public policy.

"We review a motion for judgment on the pleadings pursuant to Rule 12(c) under 'the

same de novo standard applicable to a motion to dismiss under Rule 12(b)(6).'"

Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692, 697 (6th Cir.

2005) (quoting Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 511-12 (6th Cir. 2001)). In

reviewing a motion for judgment on the pleadings "we must construe the complaint in the

light most favorable to the plaintiff, accept all of the complaint's factual allegations as true,

and determine whether the plaintiff undoubtedly can prove no set of facts in support of his

claim that would entitle him to relief." Id. (quoting Ziegler, 249 F.3d at 512).

The district court dismissed Hausler's public policy claim because it concluded that

Ohio does not recognize a wrongful discharge claim based upon a violation of public policy

where, as here, there are statutory remedies that adequately protect society's interests in

discouraging employers from engaging in discrimination on the basis of age or disability.
No. 04-3023 9

Hausler v. General Electric

In reaching this conclusion the district court relied exclusively on Wiles v. Medina Auto

Parts, 773 N.E.2d 526 (Ohio 2002) (plurality).

Hausler contends that Wiles does not provide a sufficient basis for dismissal of his

claim because it was a plurality opinion, it addressed the Family and Medical Leave act

("FMLA") rather than the ADEA, and it conflicts with the Ohio Supreme Court's decision

in Livingston v. Hillside Rehabilitation Hosp., 680 N.E.2d 1220 (Ohio 1997), which

expressly recognized that an Ohio public policy claim may be based upon the Ohio statutes

prohibiting age discrimination.

We need not determine whether Wiles accurately reflects Ohio law. It is sufficient to

note that because Hausler cannot make out his statutory age and disability discrimination

claims, his public policy claim must fail as well.

The elements of the common-law claim of wrongful discharge in violation of Ohio

public policy are (1) the existence of a clear public policy manifested in constitutional,

statutory regulatory or common law; (2) the circumstances of the discharge undermine or

jeopardize the public policy; (3) the discharge was motivated by conduct related to the public

policy; and (4) there was no overriding legitimate basis for the discharge. Kulch v. Structural

Fibers, Inc., 677 N.E.2d 308, 321 (Ohio 1997). Public policy claims necessarily fail where

the underlying statutory claims fail. For example, in Godfredson v. Hess & Clark, Inc., 173

F.3d 365, 375 (6th Cir. 1999), we held that the plaintiff's claim of discrimination in violation

of Ohio public policy failed where the plaintiff could not show that the employer's stated

justification for dismissal was pretextual. See also Garcia v. ANR Freight Sys., Inc., 942 F.
No. 04-3023 10

Hausler v. General Electric

Supp. 351, 358-59, and n. 8 (N.D. Ohio 1996) (dismissing public policy wrongful discharge

claim where plaintiff failed to show constructive discharge based on sexual harassment).

Because Hausler was not able to show that his employer's dismissal decision was pretextual,

he has failed to show that it was motivated by conduct related to the public policy and he has

failed to show that there was no overriding legitimate business justification for the discharge.

Accordingly, we affirm the district court's dismissal of Hausler's public policy claim, but on

grounds different than those articulated by the district court. See Angel v. Kentucky, 314 F.3d

262, 264 (6th Cir. 2002) (holding that we are free to affirm the judgment on any basis

supported by the record).

IV.

For the foregoing reasons, we AFFIRM the district court's order granting defendants'

motion for summary judgment on Hausler's age discrimination claims. We also AFFIRM

the district court's dismissal of Hausler's public policy claim, although for reasons different

from those provided by the district court.