Brebberman v. City of Maumee, Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Howard Brebberman, Case No. 3:21 CV 1881

Plaintiff, MEMORANDUM OPINION

GRANTING SUMMARY JUDGMENT

-vs-

JUDGE JACK ZOUHARY

City of Maumee, Ohio,

Defendant.

INTRODUCTION

Plaintiff Howard Brebberman worked as Commissioner of Public Service for Defendant

City of Maumee. In May 2020, the City terminated Brebberman. He then filed this suit for age

discrimination in violation of Ohio Revised Code (“R.C.”) Section 4112.02 (Doc. 1). The City now

moves for summary judgment under Federal Civil Rule 56(a) (Doc. 26), which is appropriate only

where no genuine issue of material fact exists.

FACTS

In September 1996, the City hired Brebberman as an engineer in the Public Service

department (Doc. 25-3). Brebberman, who holds an associate degree in architectural technology

and a bachelor degree in industrial technology, was promoted in May 2012 to “Commissioner” of

Public Service (id.). The position description was to “provide[] administrative, engineering and

technical support to the City divisions of Construction, Operations and Natural Resources” (Doc.

23-6). His duties included maintenance and upkeep of public buildings and public grounds, above-

ground infrastructure, and trees in the public right of way (id. 23-6). Brebberman supervised day-

to-day operations of the “service working group” (id.). He had no performance-related issues while

serving in this role (Doc. 28 at 4).

On March 24, 2020, the Mayor declared the City to be in a state of emergency due to the

COVID-19 pandemic (Doc. 23-11). The City anticipated a significant decrease in revenue the

following month -- amounting to a roughly $1.2 million dollar annual loss (Doc. 24-2). Facing

these losses, the City decided to cut staff. The Mayor signed an Emergency Order the following

month, calling for a reduction of the City’s workforce (Doc. 23-11 at 2). The Order called for 23

positions to be eliminated in multiple divisions, including police, fire, public service, and finance

(id.). On April 27, the City drafted letters to 18 employees, including Brebberman, notifying them

of their positions being eliminated as part of a reduction in force (“RIF”) (Doc. 25-1). On April 29,

Brebberman met with the City Administrator, Chief of Police, Law Director, and Commissioner of

Human Resources. They handed him a letter of termination (Doc. 28 at 5). Brebberman’s

employment with the City ended on May 10; he was 59 years old at the time (Docs. 23-13, 23 at 3).

During the spring of 2020, the City experienced a number of employee changes. Some

employees voluntarily resigned or retired from their positions in response to the Emergency Order

(Doc. 24-2 at ¶ 8). Of the 18 employees who received termination letters, three were ultimately

terminated, some retired, others moved into open positions or were able to keep their positions as a

result of negotiations between the City and their Union (Doc. 26-1 at 10).

STANDARD

“Age discrimination claims brought under the Ohio statute are analyzed under the same

standards as federal claims brought under the [ADEA].” Blizzard v. Marion Tech. Coll., 698 F.3d

275, 283 (6th Cir. 2012) (citation omitted). Brebberman must show, by a preponderance of the

evidence, that age was the “but-for” cause of his firing. Gross v. FBL Fin. Servs., 557 U.S. 167,

176 (2009). This evidence can be direct or circumstantial. “[D]irect evidence is that evidence

which, if believed, requires the conclusion that unlawful discrimination was at least a motivating

factor in the employer’s actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176

F.3d 921, 926 (6th Cir. 1999). On the other hand, “[c]ircumstantial evidence . . . is proof that does

not on its face establish discriminatory animus, but does allow a factfinder to draw a reasonable

inference that discrimination occurred.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570

(6th Cir. 2003).

When there is no direct evidence, circumstantial evidence may suffice, but only if it survives

the McDonnell Douglas burden-shifting analysis. Geiger v. Tower Auto., 579 F.3d 614, 622 (6th

Cir. 2009) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). To demonstrate

a prima facie case, Brebberman must show he was: (1) a member of a protected group; (2) subject

to an adverse employment decision; (3) qualified for the position; and (4) replaced by a person

outside of his protected class. Geiger, 579 F.3d at 622.

If Brebberman establishes a prima facie case of age discrimination, the burden shifts to the

City to provide a legitimate, non-discriminatory reason for the adverse action. Hrdlicka v. GM

LLC, 63 F.4th 555, 567 (6th Cir. 2023). Brebberman must then establish that the proffered reason

for termination is pretextual, by showing it: (1) has no basis in fact; (2) did not actually motivate the

City’s challenged conduct; or (3) was insufficient to warrant the challenged conduct. Id. at 568.

DISCUSSION

Brebberman admits there is no direct evidence of age discrimination (Doc. 28 at 10). This

Court therefore examines whether Brebberman’s circumstantial evidence suffices.

Brebberman is a member of a protected class who suffered an adverse employment action

(Doc. 26-1 at 9). See Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th Cir. 1996) (noting

that being fired constitutes an adverse employment action). Two factors remain in

dispute -- (1) whether Brebberman was qualified and (2) who replaced him. On these, he claims the

City eliminated his position, despite his outstanding record; and replaced him with younger

employees.

Reduction in Force

This Court first considers whether the City terminated Brebberman as part of a RIF (Doc.

26-1 at 8). A RIF occurs when “business considerations cause an employer to eliminate one or

more positions within the company.” Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir.

1990). The Emergency Order, issued in response to financial losses stemming from COVID-19,

called for the elimination of 23 positions in multiple divisions (Doc. 23-11 at 2). Reducing staff for

such “economic reasons” clearly fits this definition. Brocklehurst v. PPG Indus., Inc., 123 F.3d

890, 896 (6th Cir. 1997).

Brebberman argues his termination doesn’t qualify because he was replaced by two younger

employees (Doc. 23 at 25). True, “[a]n employee is not eliminated as part of a work force reduction

when he or she is replaced after his or her discharge.” Barnes, 896 F.2d at 1465. However, a

terminated employee is not considered “replaced” if “another employee is assigned to perform the

[the former employee’s] duties in addition to other duties, or when the work is redistributed among

other existing employees already performing related work.” Id. That’s what happened here. The

City never hired new employees to take over Brebberman’s duties. Rather, his duties were spread

among existing employees (Doc. 24-2 at ¶ 10). See also Sahadi v. Reynolds Chemical, 636 F.2d

1116 (6th Cir. 1980) (holding plaintiff was not “replaced” where his former duties were assumed by

another employee in addition to that employee’s prior duties).

Because of the RIF, Brebberman faces a higher burden. “When an employer is forced to

reduce its staff for economic reasons, the most common legitimate reason for the discharge is the

RIF itself.” Brocklehurst, 123 F.3d at 896. To prevail, Brebberman must “provide additional direct,

circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff

for discharge for impermissible reasons.” Barnes, 896 F.2d at 1465. Next, this Court examines the

evidence of Brebberman’s qualifications and termination.

Qualification

The City argues Brebberman fails on the “qualified” prong (Doc. 26-1 at 16). But this Court

already presumes Brebberman was qualified: “In a work force reduction case, unlike a hiring case,

the court can assume that all of the employees are qualified to perform their job since they were

actually performing it at the time of their discharge.” Payne v. Benteler Auto. Corp., 2022 WL

1665330 (6th Cir. 2022) (quoting Barnes, 896 F.2d at 1469 n.18).

Setting the RIF aside, the record evidence does not reveal Brebberman was unqualified.

Brebberman “must show that [he] was performing at a level which met [the employer’s] legitimate

expectations.” Jacklyn v. Schering-Plough Healthcare Prod. Sales Corp., 176 F.3d 921, 929 (6th

Cir. 1999). Brebberman worked for the City for nearly 24 years, and there is no evidence of poor

performance or qualification issues. The City counters that Brebberman was unqualified because

he: (1) admitted to deleting work emails, in violation of public-records policy; (2) had a role in “the

City’s dumping of sewage into the Maumee River”; and (3) did not return his work iPad (Doc. 26-1

at 16). This evidence is flimsy, at best, considering Brebberman’s spotless, decades-long record.

Moreover, the City neither considered nor addressed any of these newfound justifications at the

time Brebberman was fired. Rather, the decision-making process “was based on position” (Doc. 25

at 6). “It wasn’t based on people” (id.).

Age Discrimination

The Sixth Circuit has modified the last prong in RIF cases, requiring “direct, circumstantial,

or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge

for impermissible reasons.” Skalka v. Fernald Env’t Restoration Mgmt. Corp., 178 F.3d 414, 420

(6th Cir. 1999) (citation omitted). Specifically, Brebberman must show “that age was a factor in

eliminating his position or, where some employees are shifted to other positions, that he was

qualified for but not given a new position, and that the decision not to place him in a new position

was motivated by [his] age.” Hawley v. Dresser Indus., Inc., 958 F.2d 720, 723 (6th Cir. 1992)

(emphasis added).

Brebberman argues he “is the only person not of retirement age to ultimately be terminated

during the alleged reduction in force as everyone else was either retained in their current position or

was moved to a different position at the City” (Doc. 28 at 12). But there’s a legitimate explanation

for each individual employee initially identified for elimination (Doc. 25-3 at 4–5). Some

employees, including three lower-level public-service employees, were able to keep their jobs

because of space created by resignations and retirements (id.). This includes three of the six

employees identified for elimination in the Public Service Department. Others, such as police and

fire, were retained after union negotiations (Doc. 25 at 7).

Of all the employees identified in the RIF, Brebberman was uniquely situated -- he was the

only “Commissioner” similar to the Police Chief and Fire Chief who received a termination letter

(Doc. 25-3 at 3). Brebberman offered to be demoted to “city engineer,” but admits there was no

such position at that time (Doc. 23 at 26). He further admits he could not have moved into one of

the open union positions and he fails to articulate an open position for which he was qualified (see

Doc. 23 at 26–27).

Brebberman argues another avenue: He should have been afforded the opportunity to move

to a different position, as opposed to others, due to his seniority in accordance with City Ordinance

No. 250-2019 of the City’s 2019 Handbook (Doc. 28 at 5). Maybe so. But the City’s failure to do

so does not establish age discrimination. “The retention of an employee younger than a competent

plaintiff is insufficient to establish a prima facie case of age discrimination in the reduction in force

context.” Thompson v. Fresh Prods. LLC, 985 F.3d 509, 527 (6th Cir. 2021) (citation omitted).

Brebberman points to Coryell v. Bank One Trust Co. N.A., 101 Ohio St. 3d 175 (2004).

That case held that “an employee could be age-discriminated against even if he was replaced by a

person who was within the protected class if the replacement was substantially younger.” Id.

Brebberman asserts he can carry this burden merely by showing the City retained others who were

substantially younger than him. Not so. He fails to acknowledge that Coryell did not involve a

RIF, and therefore the plaintiff faced a lower burden. Moreover, the City did not replace

Brebberman with “substantially younger” employees. His former duties were spread among several

existing employees, all very close in age to Brebberman at the time -- Patrick Burtch (56), Matthew

Miles (53), Andy Glenn (51), and Robert Simon (51) (Docs. 24-2 at ¶ 10; 24-4).

As reflected above, Brebberman fails to provide sufficient evidence for a trier of fact to

reasonably find he was singled out for discharge as a result of his age.

Pretext

Were Brebberman able to successfully make a prima facia case, he would next need to

demonstrate the reasons proffered by the City are mere pretext for age discrimination. See Carter v.

Univ. of Toledo, 349 F.3d 269, 274 (6th Cir. 2003). To do so, he must show that the proffered

reasons: (1) have no basis in fact; (2) did not actually motivate the firing; or (3) are insufficient to

warrant the challenged conduct. Wheeler v. McKinley Enters., 937 F.2d 1158, 1162 (6th Cir. 1991).

The City’s non-discriminatory reasoning is simple -- the City needed to cut the budget. The

Mayor took emergency action, calling for a reduction in the City’s workforce in response to

COVID-19 (Doc. 23-11 at 2). Decisions to eliminate were made based on the positions -- not the

individuals in those positions (Docs. 25 at 6, 26-1 at 8, 25-2). The City decided Brebberman’s job

duties could be spread among existing employees (Doc. 26-1 at 9–10). And this is exactly what

happened -- his duties were spread between several existing employees, each very close to

Brebberman’s age at the time (Doc. 24-2 at ¶ 10).

Brebberman points out that his last paycheck was significant -- it included all of his accrued

vacation at full pay rate, sick time at 50% pay rate, and unemployment compensation -- and that

this payment should have only added to the City’s financial fears (Doc. 28-1 at 2). He mistakenly

asserts his pay did not come from revenue that was expected to decline (id.). The City notes

Brebberman’s pay came from “permissive tax -- revenue adversely affected by the COVID-19

pandemic,” and that Brebberman’s opinion on the City’s financial analysis or COVID-related

decisions is irrelevant (Doc. 31 at 6). Brebberman understandably thinks the City made the wrong

decision on who should have been terminated. But “[e]ven if some of the defendants’ proffered

reasons may be considered subjective there is no evidence that these reasons are not the actual

legitimate non-discriminatory reasons.” Brown v. Ohio State Univ., 616 F. Supp. 2d 740, 751 (S.D.

Ohio 2009), aff’d, 385 F. App’x 486 (6th Cir. 2010).

In a last gasp, Brebberman argues City Council’s August 2020 action of rescinding then-

upcoming additional layoffs and the Mayor’s January 2021 “State of the City” speech contradict the

City’s given reasons for the May 2020 layoffs. This argument is also unconvincing. At the time he

was terminated, there was indeed a legitimate COVID-19 budget emergency. City officials were

merely navigating the uncertainty of the pandemic, forecasting financial issues as they went. And

the actions of the Mayor and City Council in the months after Brebberman’s termination do not

reflect any improper motives, much less “that age was the ‘but-for’ cause” of his termination.

Gross, 557 U.S. at 176.

CONCLUSION

Hit by an unprecedented nationwide shutdown, the City of Maumee opted to reduce its

administrative workforce -- as did many cities across the country.

Brebberman fails to show age discrimination or rebut the legitimate reasons for his

termination. There are no disputes of material fact, and the City’s Motion for Summary Judgment

(Doc. 26) is granted.

IT IS SO ORDERED.

s/ Jack Zouhary

JACK ZOUHARY

U. S. DISTRICT JUDGE

July 20, 2023