Dawson v. Assured Partners

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MICHAEL TODD DAWSON, : Case No. 1:17-cv-00676

:

Plaintiff, : Judge Michael R. Barrett

:

v. : MEMORANDUM OF DECISION

: ISSUED PURSUANT TO

ASSURED PARTNERS, NL, LLC, : FED. R. CIV. P 52(a)(1)

:

Defendant. :

On October 9, 2017, Plaintiff Michael Todd Dawson initiated this civil action by

filing a five-count Complaint against his former employer, Defendant AssuredPartners,

NL, LLC, alleging race and reverse sex discrimination (in violation of federal and state

law)1 and intentional infliction of emotional distress (in violation of state common law).

(Doc. 1 PAGEID 7–11.)2 On September 23, 2019, Defendant filed a Motion for Summary

Judgment as to all claims. (Docs. 31, 32). On May 10, 2021, the Court granted

Defendant’s Motion with respect to Plaintiff's reverse sex discrimination and intentional

infliction of emotional distress claims and denied it as to Plaintiff's race discrimination

claims. (Doc. 48). Plaintiff’s race discrimination claims were later tried to the Court3 over

1 Specifically, Plaintiff contends that Defendant unlawfully discriminated against him in violation of Title VII

of the Civil Rights Act of 1964 ("Title VII") and Chapter 4112 of the Ohio Revised Code.

2 Although Plaintiff pled punitive damages as a separate count, "a claim for punitive damages is not a

separate cause of action, but a remedy potentially available for another cause of action." Dalton v.

Animas Corp., 913 F. Supp. 2d 370, 378 (W.D. Ky. 2012).

3 (See Part II.d of Opinion & Order on Defendant’s Motion for Summary Judgment, Doc. 48 PAGEID

2073–75).

a five-day period, from April 18–22, 2022, during which ten witnesses testified4. (Docs.

68–72). After due consideration, and in accord with Fed. R. Civ. P. 52(a)(1), the Court

first finds the following facts specially and then states its conclusions of law separately.

I. FINDINGS OF FACT5

Plaintiff Michael Todd Dawson worked for Defendant AssuredPartners, NL, LLC

(“AssuredPartners”) in its Cincinnati office for approximately 18 months, from June 2015

to December 2016.

AssuredPartners is a national insurance brokerage firm. It “places” employee

benefits coverage for its customers through a team that includes a Proposal Analyst, an

Account Manager, an Account Executive, and a Producer.

A Producer markets AssuredPartners’ services and brings in customers—in other

words, he or she acts as a rainmaker. A Producer can be “inside” (that is, an

AssuredPartners employee) or “outside.” An outside Producer brings his or her own

clients to AssuredPartners for service, effectively making him or her a customer of

AssuredPartners as well.

The Account Executive has overall responsibility for a customer’s account while

the Account Manager manages the day-to-day administrative tasks of the account (such

4 The Court heard testimony from Plaintiff Michael Todd (“Todd”) Dawson; current Account Manager (and

former Proposal Analyst) Terri Van Zant; current Senior Account Executive Monica Howard; former

Proposal Analyst Joe Holt; current Operations Leader Kathleen Suzanne (“Suzi”) Bach; retired Director of

Human Resources Walt Konetzka; current Account Executive Amy Jeffries; (outside) Producer Matthew

(“Matt”) Larmann; Plaintiff’s spouse Dora Dawson; and current Assured Partners customer (in her

capacity as Controller of Modern Ice) Lori Shook.

5 The parties submitted proposed findings of fact in advance of trial. (Docs. 65, 66). Simultaneous post-

trial briefs also were filed on May 6, 2022. (Docs. 76, 77). The Court informed the parties that it would

not need a transcript of the proceedings to render its forthcoming Memorandum of Decision.

as billing, claims, eligibility, and service issues). The Account Executive was described

during testimony as the “quarterback” of the client team.

Employee benefit plans must be renewed annually. The first step requires a

decision to “shop” (meaning go out into the market to see if there are other similar plans

with a better price) or “not shop” (meaning contact with the current provider as to the price

for coverage renewal)6. A “shop” renewal typically involves securing quotes from different

carriers; analyzing the options; preparing marketing and plan materials for the customer

to review; double-checking spreadsheets and marketing materials against carrier quotes;

and, once a plan is selected, assisting the customer with enrollment and employee

notifications.

The Account Executive supervises the renewal process. A Proposal Analyst puts

together a spreadsheet and PowerPoint that the Producer, along with the Account

Executive, present to the customer to assist in the selection of a benefits plan.7 The

Account Manager checks the Proposal Analyst’s spreadsheet and PowerPoint for

accuracy.8

Kathleen Suzanne (“Suzi”) Bach is the Employee Benefits Operations Leader for

the Cincinnati office. In this role, Bach hires and supervises all Proposal Analysts,

Account Managers, and Account Executives. And she is solely responsible for assigning

6 Dawson described this as asking the current provider for “a best and final offer” not to shop.

7 A typical spreadsheet will contain present-day and renewal rates from the current provider, as well as

quotes from other carriers, broken down in categories like deductible, co-insurance, office visit, specialist

visit, emergency room co-pay, and pharmacy.

8 The Court does not credit Dawson’s (self-serving) testimony that the Account Executive (and not the

Account Manager) checks spreadsheets (in detail) for accuracy, which is at odds with the credible

testimony of Operations Leader Suzi Bach, as well as long-time Account Executives Monica Howard and

Amy Jeffries.

the Proposal Analyst, Account Manager, and Account Executive that will work as a team

with a particular Producer and client.

Bach, who is white, hired Todd Dawson, who is African American. She viewed his

race as a “positive” because it added diversity to the Cincinnati office.9 Bach supervised

Dawson from hire through termination.

Dawson applied for an advertised Account Manager position. After Bach reviewed

Dawson’s resume and interviewed him, she concluded he was Account Executive

“material.” She was impressed that he had a Certified Employee Benefits Specialist

(“CEBS”) certification, which requires two-to-three (or more) years additional training

beyond normal insurance licensing. She also was impressed with his personality and

professional demeanor. As a result, she created a hybrid “Account Manager/Account

Executive” role for Dawson and received (Human Resources) approval to pay him

approximately $20,000 more (per year) than he would have made as an Account

Manager. The Employment Offer & Terms (PX1) and the Job Description (PX2) sent to

Dawson states that he would be employed as an “Employee Benefits Account Executive”.

Bach, however, credibly testified that Dawson (and his AssuredPartners co-workers)

understood he would function in this unique role, sometimes serving as Account Manager

and sometimes serving as Account Executive.10 Bach envisioned Dawson assuming

9 The Cincinnati office has more than 100 employees. Dawson was the only African American.

10 Dawson denies being hired in a hybrid role. He testified that he was hired to be an Account Executive

only and was assigned Account Manager duties as “training.” The Court does not credit Dawson’s

testimony. As noted, Dawson applied for an Account Manager position and Bach sought approval to pay

Dawson a salary in between the range for an Account Manager and an Account Executive. If Dawson

had been hired as an Account Executive only, Bach’s interface with Human Resources would make no

sense.

Account Executive responsibility for (outside) Producer Matt Larmann’s smaller (under 50

lives) clients.

Bach conducted a 90-day review of Dawson on October 2, 2015, rating his overall

performance as “5= Outstanding.” (PX13). She authorized a $1,000 “merit” increase in

Dawson’s annual salary. (Id.).11

In February 2016, an issue arose with the renewal for AssuredPartners client

Landrum & Brown (“L&B”).12 Amy Jeffries, who is white, was the Account Executive;

Dawson was assigned as the Account Manager. As the Account Manager, Dawson was

responsible to process the plan change, confirm open enrollment data, and verify that

insurance identification cards were mailed to L&B’s employees near the renewal date.

These tasks were not completed properly, however. In addition, L&B’s health insurance

carrier failed to process L&B’s benefits changes as of the (January 1, 2016) effective date

for the new policies. Although this issue was an oversight on the part of the carrier,

Dawson, as Account Manager, was nonetheless responsible to ensure that the plan

change was properly processed and updated with correct information. Also, the “Benefits

Guide” that Dawson prepared for L&B contained multiple errors and referenced the

incorrect plan. L&B requested that Dawson be removed from its service team. Dawson

was not disciplined for these errors. Instead, Bach counseled him about the importance

of using AssuredPartners checklists and tools during the renewal process.

11 Bach authorized less ($750) for Kimberly Loving, a white Account Manager. (DX154).

12 Matt Larmann is the (outside) Producer for L&B. L&B has been his client since 1984.

An issue also arose with the renewal for AssuredPartners client Aberdeen

Express.13 As with L&B, Jeffries was the Account Executive and Dawson the Account

Manager. Dawson oversaw the preparation of a spreadsheet designed to help Aberdeen

Express employees compare different healthcare plans. But the spreadsheet did not

include the standard fields that AssuredPartners includes in its spreadsheets for clients

and, as a result, omitted individual rate details and excluded premiums for dependents.

Because of these errors, Aberdeen Express was presented with an inaccurate (by

$30,000) benefits proposal. AssuredPartners “settled” with Aberdeen Express for just

under $10,000. (DX159).14 Dawson was not disciplined for these errors.

Dawson’s annual performance review occurred in April 2016. (PX14). His overall

rating was 3.650/5.000. (Id. (TD0769)). Regarding Dawson’s “Essential Duties”, Bach

commented: “Todd currently has Account Manager and Account Executive

responsibilities. He will begin working with additional clients as the Account Executive

and will have the opportunity to become more consultative.” (Id. (TD0766)). Bach also

commented: “Todd has been developing skills and familiarizing himself with available

tools so that he will be successful in managing additional clients as the AE.” (Id.). And,

overall, Bach remarked: “Todd will continue to develop his knowledge regarding carrier

products and company resources available to clients. He will expand his AE

responsibilities with larger clients, being accountable for all aspects of service and

planning. I am confident that Todd will become a trusted consultative resource to his

13 Matt Larmann is the (outside) Producer for Aberdeen Express. Aberdeen Express has been his client

since the 1980s.

14 In addition, (outside) Producer Matt Larmann “cut” his commission from Aberdeen Express to make up

for Dawson’s errors.

clients.” (Id. (TD0769)). The review does not mention Dawson’s shortcomings on the

L&B and Aberdeen Express accounts.

In May 2016, Bach was told to eliminate one of the Account Manager positions

from the Cincinnati office. She considered Dawson15 and Kimberly Loving, who is white.

Bach terminated Loving. Loving’s annual BOB (“book of business”) revenue was

substantially larger than Dawson’s16 and her annual salary was (approximately) $18,000

lower than his. (DX158). But Bach was far more critical of Loving’s “Current

Performance” than Dawson’s. Still, she described Dawson as “[v]ery capable, but is

currently not owning the client relationship for those clients that he is the AE on. During

his review, we discussed the need for him to step up and become the primary contact on

those clients and he will be receiving additional clients as the AE.” (Id.).

Later in May, Bach learned of another mistake Dawson made as the Account

Manager for AssuredPartners (house) client Winton Transportation. Amy Jeffries (again)

was the Account Executive. In November 2015, Winton Transportation informed Dawson

of an employee termination. It asked Dawson to terminate the employee from the medical

insurance carrier effective November 1, 2015, which he failed to do. Timely

communication of a termination is necessary to comply with COBRA notice requirements

and to ensure that the client is not charged premiums for the former employee. In

January 2016, Winton Transportation renewed its request. Dawson submitted the

information to the COBRA carrier, but not the medical insurance carrier (Anthem). Winton

15 Bach identified Dawson’s position as “AE/AM” hybrid. (DX158).

16 At trial, Bach explained that Loving was assigned to larger AssuredPartners accounts that brought in

more revenue.

Transportation followed up two more times, in February 2016 and in March 2016. As a

result of Dawson’s failure to fully process the termination, Winton Transportation

continued to be billed for the terminated employee’s health insurance premiums. In May

2016, legal counsel for Winton Transportation sought more than $5,000 in restitution from

AssuredPartners. Dawson persuaded Anthem to reimburse Winton Transportation for all

but $1,250. (DX160).17

On May 24, 2016, Bach sent an email to Walt Konetzka, AssuredPartners (since

retired) Director of Human Resources. (DX159). She described in detail the mistakes

Dawson had made and commented:

I recently assigned several clients to him that he would be managing

as the AE. I will reassign them this week. I need to address the

overall issue, Todd does not have the necessary skills to be

successful in his role. It has impacted the three clients below and

possibly others that I am not aware of at this point. I will be

discussing this with Tim [Devine, Managing Director for the

Cincinnati office] tomorrow, but expect that we will want to move

forward with termination of employment.

(Id. (DEF000335) (emphasis added)).

Bach met with Dawson the next day, May 25, 2016. She emailed Konetzka

afterward, copying Devine, recounting in part:

I told him that the fact that this is the third issue in the past 6 months

was very troubling and had Tim’s attention. He said he understood

that each issue had cost us money and he understands that this is a

big deal. He made the comment that he hoped his overall

performance wasn’t being based on this issue and I reiterated that in

the past 6 months - there have been three issues that he has been

involved in that have caused us a considerable amount of time and

in 1 case $9800, not to mention creditability (sic).

17 Bach “reached out to [her] counterpart at Anthem to ask for additional help[.]” (DX160 (DEF000337)). It

is unclear what, if anything, happened as a result.

(DX160 (DEF000337)). Bach stated she intended to draft a PIP (“Performance

Improvement Plan”) for Dawson. (Id.). She subsequently emailed Konetzka, copying

Devine, on June 7, 2016, telling him that “[w]e discussed the PIP18 and [Todd] was very

receptive and asked questions about a few items.” (DX161 (DEF000342)). Dawson

brought his own written plan (DX163),19 which, Bach testified, impressed and encouraged

her that Dawson was “taking responsibility”. Bach met with Dawson weekly to review his

progress; Dawson successfully completed his PIP in August 2016.

In late September 2016, Dawson began the renewal process for AssuredPartners

client Sharon Hill Daycare. Sharon Hill shared common ownership with AssuredPartners

(larger mid-market) client Kreller Group,20 but their employee benefit plans were separate.

Matt Larmann was the (outside) Producer for both entities. Monica Howard, who is white,

was the Account Executive for Kreller. Dawson was listed as both the Account Executive

and Account Manager for Sharon Hill on the AssuredPartners internal workflow lists. (See

DX169, DX170, DX172, DX177, DX190, DX195). Howard credibly testified that “leaders”

of Kreller Group made the final decision as to Sharon Hill’s benefits renewal. Howard

also credibly testified that, because of this “unique” relationship, she—as Account

Executive for Kreller—had a “vested interest” in the Sharon Hill account.

Dawson contacted Sharon Hill’s then-current health insurance provider, Humana,

to obtain rate information for the renewal. Larmann asked AssuredPartners to “shop” the

18 (DX162).

19 Dawson presented Bach with a memorandum “to establish the direction for my current and future roles

at AssuredPartners NL.” (DX163 (DEF000344)). Dawson noted that, “I currently have a dual role as an

Account Manager (AM) and Account Executive (AE).” (Id.).

20 Bach testified that Joe Davidoski “owns” both Kreller Group and Sharon Hill Daycare.

renewal,21 so, in early October 2016, Dawson contacted the client to obtain census and

payroll information to seek quotes for alternative coverage.

AssuredPartners Account Executives held weekly meetings (at 9:00 a.m. on

Monday mornings) to discuss project status. When asked about Sharon Hill, Dawson

would respond that he didn’t have an answer or that no progress had been made. Howard

expressed her frustration to Bach about Dawson. Bach instructed Howard to let Dawson

do the work because he was the Account Executive for Sharon Hill. Worried that the

renewal presentation materials would not be finished on time, and because (outside)

Producer Matt Larmann was pestering her, Howard stepped in. Proposal Analyst Joe

Holt was “super swamped”,22 so Terri Van Zandt was asked to “spread” the information.

Bach credibly testified that she didn’t expect Van Zandt’s work product to be as good as

Holt’s would’ve been. This was Van Zandt’s first (and only) spreadsheet and Bach

characterized Van Zandt as doing the team “a favor”.23 Bach knew that a careful review

would be necessary, meaning that the spreadsheet needed to be checked against the

SBC (“Summary of Benefits and Coverage”). Howard asked Dawson (on November 11,

2016) to review the Sharon Hill renewal presentation materials (to include the

spreadsheet prepared by Van Zandt) and correct any errors. In her words, it needed to

be “client ready”. Howard credibly denied that she told Dawson to just look at “the

financials”, meaning the premium rates. Dawson did not review the spreadsheet as

21 Larmann explained that the percentage increase that Humana proposed was “sizable”, “no one” was

going to shop it, and “I said we need to shop it”.

22 (See DX199 (DEF000380)).

23 Van Zandt functioned as a Proposal Analyst for only two months. Bach promoted her to Account

Manager after an employee unexpectedly separated.

instructed; he sent the “client ready” materials to Howard, who, in turn, forwarded them

to Larmann.

Sharon Hill ultimately decided to switch health insurance carriers, from Humana to

Anthem. On November 17, 2016, however, Dawson told Howard that the spreadsheet

was inaccurate because it didn’t match the SBC for the proposed Anthem plan. Bach

instructed Dawson to contact Conexis, a COBRA administrator, to obtain pricing for

Sharon Hill. In an email dated November 18, 2016 (and copying Howard), Bach told

Dawson “I need you to own this and get it resolved.” (DX185 (DEF000366)). She

instructed him to “get on the phone with Matt and explain our error.” (Id.). She further

instructed him to “please have Monica on the phone with you.” (Id.). About a half an hour

later, in response to Dawson’s email asking her what she meant by him “owning” and

“resolving” the issue, Bach wrote “Monica is contacting Cherisse to see if there are any

options available closer to what was sold, but frankly you should be handling that as the

AE on this case. As the AE, you are responsible for the client, just as any other AE on

the team would be.” (DX186 (DEF000384)). And she cautioned “Matt needs to know

what is going on and what we are doing to fix it. I don’t want you to call him alone because

I expect Matt to get very upset after what happened with Aberdeen last year. He is losing

confidence in us all together.” (Id.). Bach, Howard, and Dawson spoke with Larmann

by telephone on November 21, 2016. Dawson said little, despite Bach asking him to lead

the conversation.24 Howard apologized; Dawson did not. (See DX197 (DEF000376–

24 According to Bach, Dawson barely said “two words”. According to Jeffries, “Todd just shut down.”

377)). Larmann called Bach afterward and asked her to remove Dawson from all his

accounts.25

Bach met with Dawson (later) on November 21, 2016 and asked for his

“perspective” on the Sharon Hill renewal issues; Dawson responded that he preferred to

respond in writing.26 Bach told Dawson then that “everyone makes mistakes”, but, as the

Account Executive, she was disappointed that he disclaimed responsibility for them and

was disconnected from the team’s effort to resolve the problem. (DX191). As before,

Bach emailed Konetzka and Devine afterward. (Id.). Devine responded: “It seems not

only has he not accepted the responsibility on this matter and does not understand how

serious this matter is. His response is not acceptable. No sense of urgency on his part

is very concerning. . . . Our clients deserve nothing less than excellent service from us.

He clearly sounds like he does not get this.” (DX193 (DEF000346)).

Separately, but also on November 21, 2016, Amy Jeffries received an email from

Lori Shook, the Controller at AssuredPartners client Modern Ice.27 (DX202 (DEF000634–

635)). Jeffries was the Account Executive and Dawson the Account Manager. Shook

had called Jeffries the previous Friday (November 18, 2016). Sent as a follow-up,

Shook’s laundry list of complaints about Dawson’s (lack of) customer service were divided

into “Some items we discussed” and “A few things we didn’t discuss[.]” (Id.

(DEF000635)). Jeffries forwarded Shook’s email to Bach (on November 23, 2016), who,

25 (See DX196 (“Suzi, this cannot continue. I am being exposed as are you to financial risk, reputation

risk, risk of losing the account and other lines of business and not to mention the time spent fixing the

mistakes. I am at a complete level of zero confidence and would ask you to removeTodd from my clients

accounts.”)).

26 Bach also asked Howard (DX197), Holt (DX201, DX199), and Van Zandt for their accounts as well.

27 Matt Larmann is the (outside) Producer of Modern Ice.

in turn, forwarded it to Konetzka and Devine (on November 28, 2016). (Id. (DEF000634)).

Shook credibly testified that she had received “exceptional” service from AssuredPartners

save for the renewal when Dawson was the Account Manager, whom she described as

“inept”.28 Jeffries credibly testified that Shook “was historically easy to work with” and

“had never known her to be unreasonable”.

Several other events occurred on November 28, 2016. Bach and Dawson met to

discuss the Sharon Hill renewal.29 (DX200). Shortly before their meeting, Dawson

emailed to Bach his written version of events. (PX51 (“SHARON HILL TIMELINE OF

EVENTS”)). Bach was frustrated that Dawson took time to prepare a document to argue

he was not to blame; instead, she believed, he should take responsibility for the errors or

assist with efforts to correct them. During the meeting, Dawson stated that he didn’t

review or check “in detail” Van Zandt’s spreadsheet, a circumstance that Bach

characterized as “alarming” during her testimony.

Walt Konetzka terminated Todd Dawson on December 1, 2016; Suzi Bach was

present at this brief (five-minute) meeting.

Monica Howard began employment with AssuredPartners predecessor Neace

Lukens in June 2007. (PX105). She was hired as an “Strategic” Account Executive by

(inside) Producer David Fuller. Howard was not assigned Account Manager duties as

“training” for her Account Executive role.

Suzi Bach became Howard’s supervisor in 2011, when AssuredPartners acquired

Neace Lukens. Bach assigned Howard to be the Account Executive for (outside)

28 Shook also credibly testified that she didn’t know that Dawson was “black”.

29 Dawson surreptitiously recorded their conversation.

Producer Matt Larmann’s clients Kreller Group and Sharon Hill Daycare in 2013. In that

role, she handled the renewals for both in 2013 and 2014. Howard and Dawson “worked

[the renewals] together” in 2015 because Dawson was new to AssuredPartners and he

was slated to replace Howard as Account Executive for Sharon Hill in 2016.

Howard was promoted to Senior Account Executive at AssuredPartners in spring

2018. She has never been removed (at a Producer’s request) from servicing an account.

She has never been placed on a PIP.

Amy Jeffries began employment with AssuredPartners as an Account Executive in

2012.30 Previously, she was an Account Executive with Benefit Resources where she

worked with (outside) Producer Matt Larmann. One of the accounts she serviced was

Kreller Group when it was a Benefit Resources client. Jeffries testified that she had

“difficulty” with Kreller decision-maker Harvey Rosen over a rate error and the resulting

tax consequences. Once at AssuredPartners, she was not assigned to Kreller or Sharon

Hill Daycare because Larmann decided that she and Rosen didn’t “mesh”.31 There is no

evidence in the record that Jeffries was (in any way) responsible for the rate error. Rather,

she simply called it to Rosen’s attention.

(Inside) Producer David Fuller removed Jeffries as Account Executive from Dinosal

Plastics in 2017, post-dating Dawson’s termination. A decision-maker there (“Jackie”)

told Fuller that Jeffries was “not polished”. There is no evidence in the record that Jeffries

committed any errors in servicing this client.

Jeffries has never been placed on a PIP.

30 Jeffries testified that she has never been an Account Manager.

31 (Outside) Producer Matt Larmann testified that Jeffries was assigned as Account Executive once at

AssuredPartners and he requested that she be replaced.

Matthew (“Matt”) Larmann testified as President of Larmann Financial, which he

described as an employee benefits business. He uses AssuredPartners to service his

clients. Larmann is not involved in their “day-to-day” dealings, but rather fields complaints

from his clients when a service provider falls short. Larmann considers himself to be a

“customer” of AssuredPartners.

Larmann has a long-standing working relationship with Suzi Bach and Amy Jeffries

and has known Monica Howard since at least 2013. He described Jeffries as someone

who “respects” his clients and “does whatever it takes” to service them. He noted that he

typically receives unsolicited compliments about Jeffries from his client L&B. That said,

he will replace “anyone”, Jeffries included, if need be. He candidly—and credibly —

testified that he has “a short temper”.

Larmann also credibly testified that (1) prior to Dawson’s hire, no one from L&B,

Aberdeen Express or Sharon Hill complained about the service provided by

AssuredPartners, (2) since Dawson was removed from (all) his accounts, no client has

complained about the service provided by AssuredPartners, and (3) the complaints he

received from his clients during the renewals were specific to Todd Dawson.

II. CONCLUSIONS OF LAW

Dawson contends that AssuredPartners unlawfully discharged him because of his

race in violation of Title VII of the Civil Rights Act of 1964 ("Title VII")32 and Chapter 4112

32 Title VII’s anti-discrimination provision makes it “an unlawful employment practice for an employer . . .

to discharge any individual, . . . because of such individual’s race[.]” 42 U.S.C. § 2000e-2(a)(1).

of the Ohio Revised Code33.34 Intentional discrimination claims under Title VII can be

proven by either direct or circumstantial evidence. Ondricko v. MGM Grand Detroit, LLC,

689 F.3d 642, 648–49 (6th Cir. 2012).35 “[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.” Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir.

2003) (quoting Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921,

926 (6th Cir. 1999)). “Consistent with this definition, direct evidence of discrimination

does not require a factfinder to draw any inferences in order to conclude that the

challenged employment action was motivated at least in part by prejudice against

members of the protected group.” Id. at 865. Dawson presented no direct evidence of

race discrimination at trial. Instead, he presented circumstantial evidence from which he

argues that the Court should infer a discriminatory motive. See Kline v. Tenn. Valley

Auth., 128 F.3d 337, 348–349. Dawson’s race discrimination claims, therefore, are

subject to the McDonnell Douglas burden-shifting framework. Id.

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as subsequently

modified by Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981),

established a tripartite burden-shifting framework for evaluating discrimination claims in

cases where a plaintiff relies on circumstantial evidence. White v. Baxter Healthcare

33 In Ohio, it is “an unlawful discriminatory practice[.] . . [f]or any employer, because of the race[.] . . of any

person, to discharge without cause[.]” Ohio Rev. Code § 4112.02(A).

34 Federal caselaw interpreting Title VII is equally applicable to discrimination claims brought under Ohio

law. Staunch v. Cont'l Airlines, Inc., 511 F.3d 625, 631 (6th Cir. 2008) (citing Plumbers & Steamfitters

Joint Apprenticeship Comm. v. Ohio Civil Rights Com., 66 Ohio St. 2d 192, 196, 421 N.E.2d 128, 131

(1981)); see Arnold v. City of Columbus, 515 F. App'x 524, 529 (6th Cir. 2013) ("The same analysis

generally applies to claims under Title VII and the [Ohio Civil Rights Act].").

35 “The direct evidence and circumstantial evidence paths are mutually exclusive; a plaintiff need only

prove one or the other, not both.” Kline v. Tenn. Valley Auth., 128 F.3d 337, 348–49 (6th Cir. 1997).

Corp., 533 F.3d 381, 391 (6th Cir. 2008). First, "the plaintiff bears the initial 'not onerous'

burden of establishing a prima facie case of discrimination by a preponderance of the

evidence." Id. (quoting Burdine, 450 U.S. at 253). Second, if a plaintiff can establish a

prima facie case, "the burden shifts to the defendant 'to articulate some legitimate,

nondiscriminatory reason for the employee's rejection.'" Burdine, 450 U.S. at 253

(quoting McDonnell Douglas, 441 U.S. at 802). Third, if the defendant articulates such a

reason, the burden shifts back to the plaintiff to present evidence that the non-

discriminatory reason offered by the defendant was merely a pretext for discrimination.

Id.

To establish a prima facie case of race discrimination under Title VII, a plaintiff

must show that he was (1) a member of a protected class, (2) subject to an adverse

employment action, (3) qualified for the position, and (4) treated differently (that is, less

favorably) than similarly situated non-minority employees36. Tennial v. United Parcel

Serv., Inc., 840 F.3d 292, 303 (6th Cir. 2016) (citing Mitchell v. Toledo Hosp., 964 F.2d

577, 582 (6th Cir. 1992)).

As to the fourth element, a plaintiff must identify

"one or more comparators who are similarly situated in all relevant respects." Robinson

v. Georgia-Pac. Corrugated, LLC, No. 1:18-cv-307, 2020 WL 473543, at *4 (S.D. Ohio

Jan. 29, 2020) (quoting Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 753 (6th Cir.

2012)).37 To this end, courts in the Sixth Circuit focus whether a plaintiff and comparator

36 Alternatively, a plaintiff can establish the fourth element by showing that he was replaced by a person

outside of the protected class. Dawson did not do so here.

37 "Bobo was abrogated on other grounds by University of Texas Southwestern Medical Center v. Nassar,

570 U.S. 338, 360, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) (holding that Title VII retaliation claims must

be proved according to traditional principles of but-for causation, not the lessened causation standard

(1) share the same supervisor, (2) are subject to the same standards, and (3) have

engaged in the same conduct without such differentiating (or mitigating) circumstances

that would distinguish their conduct or the employer's treatment of them for it. Robinson,

2020 WL 473543, at *4 (citing Barry v. Noble Metal Processing, Inc., 276 F. App'x 477,

480–81 (6th Cir. 2008)). "Differences in job title, responsibilities, experience, and work

record can be used to determine whether two employees are similarly situated."

Leadbetter v. Gilley, 385 F.3d 683, 691 (6th Cir. 2004). Exact correlation is not necessary,

but a plaintiff and his comparators must be similar in all relevant respects. See Robinson,

2020 WL 473543, at *4 (citing Bobo, 665 F.3d at 753) (emphasis added).

Applying these precedents to the facts specially found, the Court states the

following conclusions of law.

Dawson did not meet his burden of establishing a prima facie case of race

discrimination by a preponderance of the evidence. There is no dispute that Dawson

meets the first two elements: he is African American and was terminated. Regarding the

third element, the undersigned previously determined that Dawson was qualified for his

position, whether it be as Account Executive or as a hybrid Account Manager/Account

Executive. (See Doc. 48 PAGEID 2065). Additionally, and as to the fourth element, the

undersigned previously determined that Terri Van Zandt was not an apt comparator but

found a genuine issue of material fact as to whether Monica Howard and Amy Jeffries

were. (Id. PAGEID 2066–68). Having heard the testimony and reviewed the exhibits, the

undersigned concludes that Howard and Jeffries also are not apt comparators.

applicable to status-based Title VII discrimination claims set forth in 42 U.S.C. § 2000e-2(m))." Jones v.

Johnson, 801 F. App'x 338, 348 (6th Cir. 2020).

True, Bach supervised all three. But the similarity begins and ends there. Bach

hired Dawson as a (distinct-to-him) hybrid Account Manager/Account Executive. Howard

and Jeffries, in contrast, were hired as Account Executives and neither functioned initially

as an Account Manager for “training” purposes. Both Howard and Jeffries had years and

years of experience as Account Executives with unblemished records. Unlike Dawson,

no (inside or outside) Producer ever asked that Monica Howard be removed from

servicing an account for any reason. Unlike Dawson, no (inside or outside) Producer ever

asked that Amy Jeffries be removed from servicing an account because she made

mistakes. Rather, she was removed on two occasions—once before Dawson was hired

and once after Dawson was fired—because of personality conflicts with the client

decision-makers. Finally, unlike Dawson, neither Howard nor Jeffries has ever been

placed on a PIP. These distinctions are significant.

“The lack of a similarly situated comparator is not always fatal to a prima facie

case, so long as the plaintiff points to ‘additional evidence,’ beyond establishing the first

three prima facie elements, that indicates discriminatory intent in light of common

experience.” Jefferson v. Intelligrated, Inc., No. 1:18-cv-00894, 2021 WL 4224714, at *6

(S.D. Ohio Sept. 16, 2021) (citing Lindsay v. Yates, 578 F.3d 407, 417 (6th Cir. 2009));

accord Hatcher v. Cuyahoga Metro. Hous. Auth., No. 1:20-cv-02508, 2022 WL 2116965,

at *7–8 (N.D. Ohio June 13, 2022). This "additional evidence" depends upon the

particular facts and circumstances of a given case. Lindsay, 578 F.3d at 418. For

example, in Lindsay, a case in which the Sixth Circuit analyzed the McDonnell Douglas

framework in the housing discrimination context, the Court determined that the suspicious

timing of the termination of a purchase agreement, within a few days after the seller

discovered the buyers were African American, provided a sufficient evidentiary basis for

inferring the seller acted with a racially discriminatory motive. Id. at 419–20.

Here, and unlike the Sixth Circuit's decision in Lindsay and the undersigned’s

summary judgment decision in Jefferson, there simply is no “additional evidence” from

which the Court can infer race discrimination. Suzi Bach did everything she could to not

fire Todd Dawson despite his multiple costly errors (over an 18-month time span) and

steadfast refusal to “own”—that is, take full responsibility and fix—any of them.38

Moreover, there is no record evidence of any race-related statements made to or about

Dawson by any AssuredPartners employee or client. And there is no evidence of racial

animus toward Dawson by any AssuredPartners employee or client.39 See Hatcher, 2022

WL 2116965, at *9.

Dawson argues that racial animus should be inferred because the other members

of the team, who are all white, were not disciplined like he was. In other words, if any

“mistake” is made on the account, AssuredPartners must mete out discipline to the entire

service team to ensure fairness and forestall discrimination. But as Defendant correctly

observes in its post-hearing brief, “Plaintiff arrives at this conclusion by simply ignoring

the nature of the mistakes at issue, who was at fault for these mistakes, and the overall

38 As AssuredPartners accurately recounts in its post-trial brief, “There is nothing in the record to reflect

that Bach harbored any racial animus towards Dawson whatsoever. To the contrary, the record is clear

that Bach hired Dawson for a better job than the one he applied for, believed in Dawson, liked him

personally, heavily invested in him as an employee, and made decision after decision in Dawson’s favor,

including saving his employment from termination on two separate occasions.” (Doc. 76 PAGEID 2750

(emphasis in original)). Applying the “same actor” inference, see Wexler v. White’s Fine Furniture, Inc.,

317 F.3d 564, 571 (6th Cir. 2003), Dawson “must offer strong evidence of pretext to demonstrate that

[Bach] discriminated on the basis of race by firing [him] even though it appears she did not discriminate

when hiring [him].” Garrett v. Sw. Med. Clinic, 631 F. App’x 351, 357 (6th Cir. 2015) (cleaned up). As the

Court will discuss, Dawson offers no credible evidence of pretext.

39 In fact, there was no testimony from AssuredPartners employees about animus of any kind. Bach,

Howard, Jeffries, Holt, and Van Zandt all credibly testified about how much they liked Dawson.

history of customer service issues surrounding Dawson’s employment (as compared to

Amy Jeffries and Monica Howard, who have many years of exemplary performance and

no comparable history of ‘mistakes’ or client complaints).” (Doc. 76 PAGEID 2738–39).

Dawson asks the Court to overturn AssuredPartners’ business decisions to discipline him

and not discipline Howard and Jeffries. It is well-settled, however, that “a federal court

may not second-guess an employer’s business judgment.” Booker v. Dee Sign Co., No.

1:06cv667, 2008 WL 839786, at *8 (S.D. Ohio Mar. 26, 2008) (citing Hedrick v. W.

Reserve Care Sys., 355 F.3d 444, 462 (6th Cir. 2004) (“Our role is to prevent unlawful

hiring practices, not to act as a ‘super personnel department’ that second guesses

employers’ business judgments.”) (cleaned up)).40

Because he did not establish that white comparators were treated differently than

him, and because he did not produce “additional evidence” that indicates discriminatory

intent in light of common experience, Dawson fails to state a prima facie case of race

discrimination. AssuredPartners, therefore, is entitled to final judgment in its favor.

Even if Dawson had established a prima facie case of race discrimination,

such that the burden of production shifted to AssuredPartners to articulate a

legitimate, nondiscriminatory reason for his termination,41 Dawson did not present

credible evidence of pretext. “In the third and final stage of the McDonnell Douglas

40 In a similar vein, Plaintiff’s counsel emphasized during closing argument that “no one was checking

Todd Dawson’s work.” That’s right. But, as AssuredPartners aptly observes in its post-hearing brief,

that’s because “no one was responsible for ‘triple checking’ the spreadsheets that the Account Manager

is supposed to double-check. The Proposal Analyst prepares the comparison spreadsheets. The

Account Manager double-checks them. The Account Executive presents them. There is nothing

discriminatory about this approach[.]” (Doc. 76 PAGEID 2741 n.4 (emphasis in original)).

41 Dawson did not challenge AssuredPartner's proffered legitimate, non-discriminatory reason for

terminating him on summary judgment (see Doc. 48 PAGEID 2065) or at trial (Doc. 77 PAGEID 2756–

57).

analysis, the presumption of discrimination is gone and the plaintiff must demonstrate that

the employer’s proffered nondiscriminatory reason was not the true reason for the

employment decision, but rather a pretext for discrimination.” Provenzano v. LCI

Holdings, Inc., 663 F.3d 806, 815 (6th Cir. 2011) (citing Burdine, 450 U.S. at 25642). A

plaintiff may demonstrate that an employer's proffered legitimate reason for an adverse

employment action is pretextual on any of three grounds: (1) by showing that the reason

has no basis in fact; (2) by showing that the reason did not actually motivate the

employer's action; or (3) by showing that the reason was insufficient to motivate the

action. White, 533 F.3d at 393. "But this three-pronged analysis should not be applied

so rigidly as to miss the point; the bottom-line inquiry is whether 'the employer fire[d] the

employee for the stated reason or not[.]'" Robinson, 2020 WL 473543, at *7 (quoting

Heffernan v. U.S. Bank Nat’l Ass'n, No. 1:13cv001, 2014 WL 3408594, at *12 (S.D. Ohio

July 10, 2014) (quoting Blizzard v. Marion Tech. Coll., 698 F.3d 275, 285 (6th Cir. 2012))).

“Pretext is a commonsense inquiry: did the employer fire the employee for the stated

reason or not? This requires a court to ask whether the plaintiff has produced

evidence that casts doubt on the employer’s explanation, and, if so, how strong it

is. One can distill the inquiry into a number of component parts, and it can be useful to

do so. But that should not cause one to lose sight of the fact that at bottom the question

is always whether the employer made up its stated reason to conceal intentional

discrimination.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009) (citations

42 “The plaintiff retains the burden of persuasion. [ H]e now must have the opportunity to demonstrate

that the proffered reason was not the true reason for the employment decision. This burden now merges

with the ultimate burden of persuading the court that [ h]e has been the victim of intentional

discrimination.” Burdine, 450 U.S. at 256.

omitted) (emphasis added); Zilner v. Neuronetics, Inc., No. 1:21CV1912, 2023 WL

5748732, at *5 (N.D. Ohio Aug. 31, 2023) (citing Chen); Perkola v. Univ. of Mich. Bd. of

Regents, No. 16-12602, 2018 WL 1522436, at *14 (E.D. Mich. Mar. 28, 2018) (citing

Chen).

Dawson argues all three grounds, adding that “[a]n employer’s changing rationale

for making an adverse employment decision can be evidence of pretext.” (Doc. 77

PAGEID 2757 (quoting Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1168 (6th Cir.

1996 (citations omitted))43). In support, his counsel contends:

Suzi testified ad nauseum that Todd was terminated for the mistakes

on the Sharon Hill renewal because he was the Account Executive

so ultimately it was his responsibility as the Account Executive to

double check Terri Van Zandt’s comparison spreadsheets and the

PowerPoint presentation and catch Terri’s mistakes. But when

asked why she didn’t hold Amy Jeffries to this same standard as the

Account Executive, when the mistakes happened on the comparison

spreadsheets for the Aberdeen Express renewal, Suzi then changed

her story and the new narrative was it was Todd’s sole responsibility

to catch Joe Holt’s mistakes on the Aberdeen Express comparison

spreadsheets because Todd was the account manager, and it was

not the Account Executive’s job. And at trial Amy Jeffries testified

that both her and Todd were the Account Executive on the Landrum

and Brown renewal but again Todd was the only person held

responsible for all of the mistakes on the Landrum and Brown

renewal and the Benefits Guide. So, Suzi Bach changed her story

again and the new narrative was that Todd was fired because he

didn’t ‘own it’ and accept responsibility for his mistakes. But the

evidence showed that Todd did take ownership for his mistakes, he

just refused to take sole ownership for the mistakes by his white

colleagues on every account.

(Doc. 77 PAGEID 2757–58 (footnote omitted) (emphasis in original)). The record

evidence, however, belies these assertions.

43 This general proposition remains good law in the Sixth Circuit. See George v. Youngstown State Univ.,

966 F.3d 446, 462–63 (6th Cir. 2020).

Suzi Bach consistently—and credibly—testified that the Account Manager is

responsible for checking the accuracy of the Proposal Analyst’s spreadsheet entries. So

did Monica Howard and Amy Jeffries44. Only Todd Dawson testified that the Account

Executive is supposed to “look at the spreadsheet and cross-check the details.”

Dawson testified that he was told he was being fired “because of Sharon Hill.” In

support of pretext, counsel argues that Bach told Dawson she wasn’t looking to “place

blame” and needed this event to be a “learning opportunity”. Dawson also testified that

he was the Account Executive for Sharon Hill Daycare “in name only”. In practice, Monica

Howard was the Account Executive and he did “whatever Monica asked [him] to do.” In

support of pretext, counsel argues that Bach placed sole blame on Dawson because he

was the Account Executive.

That is an oversimplification of witness testimony. Howard was tied to Kreller

Group and (outside) Producer Matt Larmann, a demanding and impatient (but apparently

valued) AssuredPartners customer. In this capacity, she assumed certain Account

Executive functions for the Sharon Hill renewal. But all along, Dawson (on paper and in

practice) was the Account Manager for Sharon Hill and it is in this capacity that he failed

to follow Howard’s instruction to check the accuracy of (brand new employee) Van Zandt’s

spreadsheet entries.

In support of pretext, counsel further argues that Dawson’s mistakes regarding

other clients (L&B, Aberdeen Express, and Winton Transportation) could not, for lack of

a better word, “count” as part of the decision to terminate because Bach did not include

them in his annual performance review. The Court is unpersuaded. Dawson’s errors as

44 Specific to Sharon Hill, Jeffries explained that she would have looked at the SBCs, but not critically

proofread them against Van Zandt’s spreadsheet.

to L&B and Aberdeen Express were otherwise documented. Legal counsel for Winton

Transportation did not send AssuredPartners a demand letter until May 2016, after

Dawson’s review. At that point, Dawson was placed on a PIP. Just three months after

he successfully completed his PIP, the Sharon Hill debacle ensued, his fourth material

mistake since his hire 18 months earlier, which resulted in Larmann telling Bach he was

“at a complete level of zero confidence” and wanted Dawson removed from all his

accounts. This ask was problematic, if for no other reason than the fact that Bach hired

Dawson with the thought that he would be assigned as the Account Executive to

Larmann’s smaller (under 50 lives) clients. And, on top of all this, Modern Ice added its

bad experience with Dawson to the mix. All of these events, and more, underpinned the

decision to terminate. Dawson presents no evidence that AssuredPartners “made up”

any of them to hide its intention to fire him because he is African American.

III. AWARD

The Court finds in favor of Defendant AssuredPartners, NL, LLC, and against

Plaintiff Michael Todd Dawson, on Dawson’s federal and state law claims of race

discrimination. The Clerk is hereby directed to enter judgment (pursuant to Fed. R. Civ.

P. 58) accordingly.

IT IS SO ORDERED.

/s/ Michael R. Barrett

Michael R. Barrett, Judge

United States District Court