Yacko v. General Motors Company

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARK A. YACKO, Case No. 1:23-cv-01578-PAB

Plaintiff,

-vs- JUDGE PAMELA A. BARKER

GENERAL MOTORS COMPANY, et al.,

Defendants. MEMORANDUM OPINION AND

ORDER

This matter comes before the Court upon Defendant General Motors Company (“GM”) and

Defendant Jim Gaeschke’s1 (“Gaeschke”) Motion for Summary Judgment (“Motion”) (Doc. No. 27),

filed on July 17, 2024. On August 20, 2024, Plaintiff Mark A. Yacko (“Yacko”) filed a Brief in

Opposition to Gaeschke’s Motion to Dismiss (“Opposition”) (Doc. No. 33), and on September 17,

2024, GM and Gaeschke (collectively “Defendants”) filed a Reply Brief in Support of their Motion

(“Reply”). (Doc. No. 37.) Accordingly, Defendants’ Motion is ripe for a decision.

For the following reasons, the Court GRANTS Defendants’ Motion. (Doc. No. 27.)

I. Undisputed Material Facts

A. General Motors and Yacko’s Employment at GM Parma

Defendant GM is a corporation headquartered in Detroit, Michigan, and operates a

manufacturing plant in Cuyahoga County, Ohio. (Doc. No. 1-1, Compl. at ¶ 2; Sipler Dec. (Doc. 27-

9) at ¶ 2.) Defendant GM is a person and employer within the meaning of Ohio Revised Code §

1 Yacko’s Complaint spells Gaeschke’s name as “Gaeske.” (See Doc. No. 1-1.) Gaeschke’s filings, however, spell his

name “Gaeschke.” (See, e.g., Doc. No. 10-1.) The Court will use Gaeschke’s own spelling.

4112.01(A) and (B). (Compl. at ¶ 3; Doc. No. 5, GM Ans. at ¶ 3; Doc. No. 20, Gaeschke Ans. at ¶

3.)

Yacko is a sixty-year-old white male resident of Medina County, Ohio.2 (Compl. at ¶ 1; GM

Ans. at ¶ 1; Gaeschke Ans. at ¶ 1; Yacko Dep. (Doc. No. 27-2) at Tr. 11, 14.) Yacko began as a

contract supervisor with GM in 1996 and was later hired full-time by GM in 1999 at GM’s plant in

Parma, Ohio (hereinafter “GM Parma”) as a Group Leader in Maintenance. (Yacko Dep. at Tr. 16–

17.) GM Parma is a stamping facility that manufactures parts for GM vehicles. (Yacko Dep. at Tr.

Sipler Dec. (Doc. 27-9) at ¶ 2.) In 2022, Yacko reported to Frank Jewett (“Jewett”), his direct

supervisor. (Yacko Dep. at Tr. 18.) Jewett reported to Ken Sipler (“Sipler”), the Area Manager.

(Dixon Dec. (Doc. No. 27-6) at ¶ 8.)

A Group Leader in Maintenance at GM Parma is responsible for supervising a group of skilled

employees to troubleshoot and repair complex equipment and processes. (Yacko Dep. at Tr. 20.) In

his role, Yacko supervised anywhere from nine to fifteen maintenance employees on GM’s third shift,

which operated 10:30 p.m. to 6:30 a.m. (Yacko Dep. at Tr. 17, 20–21; Sipler Dec. at ¶ 2.)

GM expects employees to comply with a set of standards known as “GM Behaviors.” (Yacko

Dep. at Tr. 57–58; Dixon Dec. at ¶ 3; Sipler Dec. at ¶ 4.) The GM Behaviors are published on GM’s

employee website and consist of eight criteria as follows: Be Inclusive, Think Customer, Innovate

2 Yacko was born on March 2, 1964, and was 58 years old at the time of his termination on February 28, 2023—

specifically, two days shy of turning 59 years old. (Yacko Dep. (Doc. No. 27-2) at Tr. 11.) For purposes of evaluating

Yacko’s age discrimination claim, the Court will use his age at the time of the termination. See Grace v. Ansul, Inc., 2001

WL 765132, at *3 (N.D. Ill. July 6, 2001) (“It is of course the universally-established law that it is the honest perception

of the decisionmaker at the time of an adverse employment decision that controls whether or not prohibited discriminatory

motives are at work.”); Turner v. Kan. City So. Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012) (“The relevant perspective is

that of the employer at the time of the adverse employment decision.”) (citation omitted); Cousin v. United States, 230 F.

Supp. 3d 475, 490 (E.D. Va. 2017) (“[A]s in other employment discrimination contexts, the Court’s task is to assess the

employment decision from the perspective of the employer at the time the decision was made.”) (citing DeJarnette v.

Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998)).

2

Now, Look Ahead, One Team, Be Bold, It’s on Me, and Winning With Integrity. (Doc. No. 27-6 at

PageID #578; Yacko Dep. at Tr. 58.) GM employees are evaluated, in-part, on whether they meet

the GM Behaviors standards. (Dixon Dec. at ¶ 3; Sipler Dec. at ¶ 6; Yacko Dep. at Tr. 57.)

GM maintains an Equal Employment Opportunity Policy (“EEO Policy”). (Doc. No. 27-2 at

PageID #347.) The EEO Policy requires GM to extend opportunities on an equal basis to employees

regardless of demographics, including age. (Id.) GM also maintains an Anti-Harassment Policy. (Id.

at PageID #348.) The Anti-Harassment Policy similarly prohibits any harassment based on various

demographics, including age, sex, or gender. (Id.) Specifically, the Anti-Harassment Policy notes

that words and actions that “have even the appearance of disrespect … are inappropriate for the GM

work environment.” (Id.) The Anti-Harassment Policy further provides that “[d]emeaning,

disrespectful, or insensitive jokes … [or] language … will not be tolerated in the workplace,”

“particularly if they relate to race, sex, [or] gender.” (Id.)

B. Yacko’s Performance in 2021 and 2022

Yacko was a strong performer regarding his technical skills. For example, GM leadership

described Yacko as having a “deep understanding on how the Parma Plant presses operated and how

to maintain and repair them.” (Sipler Dec. at ¶ 6.) Similarly, in Yacko’s 2021 Year-End Performance

Review, his supervisor at the time, Jewett, described him as “a valuable member of the 3rd shift team”

whose “pressroom knowledge and experience is invaluable.” (Doc. No. 27-2 at PageID #350.)

Despite Yacko’s strong technical skills, his “soft skills”—in other words, “how he worked

and interacted with his peers and leaders”—did not receive the same praise. (Sipler Dec. at ¶¶ 6–9;

Jewett Dec. (Doc. No. 27-8) at ¶¶ 2–5.) For example, in Yacko’s 2021 Year-End Performance

Review, Jewett explained that Yacko “is bold, but he needs to be careful with [sic] his constructive

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criticisms do not cross the line and take away from all the good work he does.” (Doc. No. 27-2 at

PageID #353.)

In 2022, Yacko’s behavior became a topic of discussion between Yacko and GM

management. (Sipler Dec. at ¶¶ 6–9; Jewett Dec. at ¶¶ 2–5; Yacko Dep. at Tr. 49.) Specifically, two

aspects of Yacko’s behavior were raised as concerns by GM management: (i) Yacko’s attendance;

and (ii) the way he interacted with his peers and leaders. (Id.)

i. Yacko’s 2022 Attendance

In 2022, Yacko called off several times throughout the year. In early January 2022, the first

attendance incident occurred when Yacko called off work on short notice because he was stuck in an

ice storm while traveling back from vacation. (Yacko Dep. at Tr. 76–78; Doc. No. 27-2 at PageID

#361.) GM was specifically concerned with the short notice provided that prevented them from

finding coverage to fill Yacko’s role and lack of explanation when calling off.3 (Sipler Dep. at Tr.

32–33.) On April 19, 2022, Yacko’s second attendance incident occurred, when he called off the

same day as his shift because “something had come up at home.”4 (Doc. No. 27-2 at PageID #361.)

3 There are a few details in dispute as to the January attendance issue. First, the parties dispute the number of days that

Yacko called off. GM management emails indicate that Yacko called off on both January 3, 2022, and January 4, 2022.

(Sipler Dep. at Tr. 32; Doc. No. 27-2, PageID #361.) Yacko disputes this in his deposition, explaining that he “only took

one more day off after I had scheduled time off,” and explained that perhaps Jewett thought that the “first day wasn’t

scheduled” even though it was. (Yacko Dep. at Tr. 77–78, 81.) Second, the parties dispute the timing of how far in-

advance Yacko called off and whether he provided a reason. GM asserts that Yacko waited until an hour before the start

of the shift to contact his supervisor and gave no reason for calling off. (Sipler Dep. at Tr. 32; Doc. No. 27-8 at PageID

#638.) Yacko addresses this in his deposition, testifying that he cannot recall if the details were included in a text message

but that he “did call [Jewett] and leave him a message and let him know” about the ice storm. (Yacko Dep. at Tr. 76.)

Yacko also stated that he “believe[s] it was earlier than an hour before the shift.” (Id.) After reviewing the record, it

appears that Yacko initially contacted Jewett via text message to call off, and later supplemented that message with a call

to explain the circumstances. (Compare Doc. No. 27-2 at PageID #361, with Yacko Dep. at Tr. 76.)

4 In his deposition, Yacko appears to have initially confused his dates, as he testified that the April call-off was because

his wife’s aide was shot. (Yacko Dep. at Tr. 78.) But after being asked about the May call-off, Yacko clarified that his

wife’s aide was actually shot on May 3, 2022, and that he did not recall calling off on April 19, 2022. (Yacko Dep. at Tr.

4

On May 3, 2022, Yacko called off again for a family emergency because he needed to stay home and

comfort his distraught wife after one of her young office aides was murdered that day.5 (Yacko Dep.

at Tr. 28–29, 50.) These call-offs were documented by Jewett and were later provided to Sipler.6

(Jewett Dec. at ¶ 3; Doc. No. 27-8 at PageID #638; Doc. No. 27-2 at PageID #361.)

On May 5, 2022, Jewett and Sipler met with Yacko to discuss attendance expectations.

(Jewett Dec. at ¶ 4; Doc. No. 27-2 at PageID #360; Yacko Dep. at Tr. 80.) Yacko was very upset

during the meeting and stated that if he has more emergencies such as family or medical issues, he is

going to call off. (Yacko Dep. at Tr. 82–83; Doc. No. 27-2 at PageID #360; Jewett Dec. at ¶ 4; Sipler

Dec. at ¶ 9.) At the meeting, Sipler stressed to Yacko the importance of letting Jewett know as early

in advance as possible if he has family issues. (Sipler Dec. at ¶9.) In response, Yacko told Sipler and

Jewett that he was going to do “whatever the fuck he wanted to do” with his vacation days. (Sipler

Dep. (Doc. No. 32-6) at Tr. 34.) Jewett described Yacko as “quite belligerent,” “heated,” and “angry”

during the meeting, while Sipler described him as “angry,” “combative,” and “aggressive.” (Jewett

Dep (Doc. No. 32-5) at Tr. 32; Sipler Dec. at ¶ 9.) According to Sipler, Yacko turned his chair and

sat with his back to Sipler and Jewett multiple times. (Id.) Finally, Sipler noted that Yacko “had a

79.) Yacko later appeared to concede that he did call off on April 19, 2022, but still did not recall why he did so. (Yacko

Dep. at Tr. 81.)

5 Yacko also testified that the health of his mother would sometimes cause him to miss work unexpectedly. (Yacko Dep.

at Tr. 29–30.) Specifically, Yacko’s mother had dementia and would sometimes become confused, which required Yacko

to go to her home and care for her. (Id.) Neither Yacko nor the GM management emails mention any specific dates that

this occurred. (Id.; Doc. No. 27-2 at PageID #361.) The record is unclear as to whether Yacko’s April 19, 2022 call-off

for “something [that] had come up at home” was related to his mother’s health. (Doc. No. 27-2 at PageID #361.) Yacko

considered both the situation regarding his wife’s aide and his parents’ health to be emergencies. (Yacko Dep. at Tr. 29.)

6 On September 29, 2022—following Yacko’s 2022 Mid-Year Report—Yacko called off via email because his family in

Florida had been impacted by Hurricane Ian and were in dire need of assistance. (Doc. No. 27-2 at PageID #370.) Yacko

indicated that he would be out at least a week but did not have an exact time for return. (Id.) The email was sent to

Jewett, Sipler, and Craig Malone (“Malone”) who was the lead on third shift. (Id.) Malone responded via email informing

Yacko that “[y]ou have my full support” and “hope everything is ok with your family.” (Id.)

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hot cup of coffee in his hands … [which] were shaking,” and that he thought Yacko was either going

to punch him or throw the coffee at him which made him fearful for his safety. (Sipler Dep. at Tr.

34.)

ii. Yacko’s Interactions With Co-Workers7

The way Yacko interacted with his co-workers was addressed on various occasions throughout

2022. For example, in early 2022, Yacko was asked to make a short presentation about himself called

a “10-minute drill” to share with the staff at HRM8 so they could get to know him better. (Yacko

Dep. at Tr. 48; Sipler Dec. at ¶ 7; Jewett Dep. at Tr. 16.) During the presentation, Yacko was asked

a question9 about himself by the Assistant Plant Manager, Amy Carrier (“Carrier”). (Sipler Dep. at

Tr. 13; Sipler Dec. at ¶ 7.) In response to Carrier’s question, Yacko answered that he was a “man”

and therefore a “hunter and gatherer.” (Sipler Dep. at Tr. 16; Sipler Dec. at ¶ 7.) Carrier told Sipler

that she felt offended by Yacko’s remark, although Sipler himself did not know why it would be

offensive to her,10 what Yacko meant or intended by the comment, or whether Yacko meant it in a

7 In addition to the following examples discussed, Sipler testified in his deposition that Yacko would not keep his manager,

Jewett, informed of breakdowns occurring in the plant. (Sipler Dep. at Tr. 38–39.) However, Sipler later acknowledged

that he was not there on third shift and did not know the specifics of the situation. (Sipler Dep. at 39–40.) Sipler also

claimed that Yacko was taken off a project for a press rebuild for not completing follow-up information at the end of the

shift and not communicating the progress of the press—yet when challenged as to the details of those incidents, Sipler

could not provide any information. (Sipler Dep. at 44–45.)

8 GM Parma’s HRM leadership team is comprised of the Plant Director (i.e., Gaeschke), the Assistant Plant Manager (i.e.,

Carrier), the Site Director – Human Resources-Labor Relations (i.e., Dixon), the Global Supply Chain Manager, the

Manufacturing Engineering Manager, and the Finance Manager. (Dixon Dec. at ¶ 8.) GM Parma’s SubHRM team is

comprised of eighth level direct reports to the HRM team, which included Sipler. (Id.) Shift leads such as Yacko and

Jewett are not members of the HRM or SubHRM teams and did not attend the HRM/SubHRM Meeting. (Id.)

9 The record does not specify the exact question that Carrier asked Yacko.

10 Yacko contends that the Court cannot consider Sipler’s Declaration on the point of whether the “hunter and gatherer”

comment was offensive because it is in “direct contradiction” to his deposition testimony. (Opposition at PageID #1326.)

The Sixth Circuit has repeatedly indicated that “[a] party may not create a factual issue by filing an affidavit, after a

motion for summary judgment has been made, which contradicts [his] earlier deposition testimony.” Reid v. Sears,

Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986). In determining an affidavit's admissibility at summary judgment,

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sexist way or meant to create an offensive feeling in the mind of Carrier.11 (Sipler Dep. at Tr. 16–17,

20.) Carrier, along with Jewett, later met with Yacko and explained to him that she felt attacked by

his comments and informed him that others perceived him as being negative, to which Yacko

responded “I’m sorry if I come off like a negative person, but I am who I am.”12 (Jewett Dep. at Tr.

15–16, 52, 54–55; Yacko Dep. at Tr. 48, 93.)

The next incident involved Yacko’s response to an email from a co-worker requesting

coverage. On June 22, 2022, Trelena Carmack (“Carmack”), a fellow group leader in maintenance,

courts must first consider “whether the affidavit ‘directly contradicts the nonmoving party's prior sworn testimony,’” and,

“[i]f so, absent a persuasive justification for the contradiction, the court should not consider the affidavit.” Reich v. City

of Elizabethtown, 945 F.3d 968, 976 (6th Cir. 2019) (citation omitted). Sixth Circuit precedent suggests “a relatively

narrow definition of contradiction.” Briggs v. Potter, 463 F.3d 507, 513 (6th Cir. 2006). If a party “was not directly

questioned about an issue,” a later affidavit on that issue simply “fills a gap left open by the moving party.” Aerel, S. R.

L v. PCC Airfoils, LLC, 448 F.3d 899, 907 (6th Cir. 2006). Here, Sipler was asked directly in his deposition to explain

how “anything [Yacko] said to Carrier about being a hunter [or] gatherer” could be offensive. (Sipler Dep. at Tr. 20.) In

response, Sipler answered, “I do not know why that would be offensive to her.” (Id.) Yet in his later declaration, Sipler

declared that “I found the response odd and disrespectful to Ms. Carrier.” (Id.) (emphasis added). Therefore, because

Sipler directly testified that he did not know why such a comment would be offensive, and later contradicted that testimony

by stating that he believed the comment was in-fact disrespectful, the Court will not consider Sipler’s declaration as to

his perception of the “hunter and gatherer” comment being offensive.

However, the Court will consider Sipler’s testimony that Carrier said she felt offended, and Jewett’s testimony that Carrier

said she felt attacked, by Yacko’s remark. (Sipler Dep. at Tr. 16–17; Jewett Dep. at Tr. 52.) Federal Rule of Evidence

803(3) provides an exception to the rule against hearsay regarding a statement of the declarant’s then-existing statement

of mind or emotional condition. See Fed. R. Evid. 803(3). Here, Carrier’s statements that she felt offended and attacked

by Yacko’s comment described her emotional condition, and thus, are admissible under Rule 803(3). (Sipler Dep. at Tr.

17; Jewett Dep. at Tr. 16, 52, 54–55.) Further, Yacko did not raise any hearsay objections to this testimony.

11 Yacko argues that Sipler approved his presentation plan before he gave it to Carrier. (Opposition at PageID #1326;

Sipler Dep. at Tr. 25.) However, the Court finds that such approval does not equate to Sipler approving Yacko’s comments

about being a “man” and “hunter and gatherer” because the evidence does not support that those comments were in the

PowerPoint presentation itself. Instead, the evidence appears to indicate that while presenting his PowerPoint, Yacko was

asked a question by Carrier, to which he then responded with the “hunter and gatherer” comment—rather than the

comment already being pre-written into the PowerPoint. (Sipler Dep. at Tr. 16.) Accordingly, the Court finds that the

evidence does not support the notion that Sipler approved the “hunter and gatherer” comment upon his review of Yacko’s

PowerPoint.

12 In his deposition testimony, Yacko describes a meeting with Carrier in which he was informed that others perceived

him as negative. (Yacko Dep. at Tr. 48, 93.) The record is unclear whether this is the same meeting referenced by Jewett,

in which Carrier discussed Yacko’s “hunter and gatherer” comments. (Jewett Dep. at Tr. 15–16.)

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emailed Yacko and other third-shift group leaders a request to work on Saturday, June 25, 2022.

(Yacko Dep. at Tr. 78; Jewett Dec. at ¶ 5.) In her email, Carmack wrote, “I am on vacation Friday

and won’t be able to work Saturday if they work. Sounds like same as last week 2 cells in Dept 50.

Who would be able to work if we do?” (Doc. No. 27-8 at PageID #640.) Yacko’s response was as

follows:

“You’d have to ask my wife (Michelle) if I’m available for Saturday. I’d ask her, but I’m

afraid of her response. 239-699-5822, best time to reach her is between 8:00am and 11:00am.

I’m kind of hoping we don’t work, I dreed [sic] just thinking about how she’ll respond. Keep

in mind, I tell her EVERYTHING about my workplace and leadership.”

(Id.). Afterwards, Carmack became very upset and reached out to Jewett to say that she felt insulted,

demeaned, and disrespected by Yacko’s response.13 (Jewett Dep. at Tr. 44–45, 47–48.) Jewett did

not ask Carmack why she felt insulted, but instead told her that if she felt offended, she should report

the incident to the lead, Sipler.14 (Jewett Dep. at Tr. 48, 51, 55–57.)

Jewett met with Yacko to discuss the incident and provide him with a coaching-counseling

memo that explained why his email to Carmack was inappropriate. (Doc. 27-8 at PageID #639–40.)

The coaching-counseling memo specified that it was not a letter to file for formal discipline. (Doc.

13 During Jewett’s deposition, Plaintiff’s counsel asked Jewett whether he was aware and if it was true that Carmack was

seen laughing and joking about this in front of three witnesses after making the report. (Jewett Dep. at Tr. 50, 57.)

Defense counsel objected to the line of questioning on the basis that it assumed facts not in evidence. (Jewett Dep. at Tr.

57.) Plaintiff’s counsel insisted that such facts were in evidence. (Id.) In response to the question, Jewett answered “I

don’t know.” (Jewett Dep. at Tr. 58.) Upon an independent review of the record, the Court does not find any references

in evidence to Carmack “laughing and joking” about the incident. The only reference to this event comes from Plaintiff’s

counsel in his question during Jewett’s deposition, in which Jewett responds that he does not know whether it occurred.

(Id.) Yacko points to no other deposition testimony or any other evidence that corroborates this event. Nor does Yacko

provide any declarations from the “three witnesses” in front of whom Carmack allegedly laughed and joked. Therefore,

because Jewett did not affirm that Carmack was laughing and joking about the incident, and it is not mentioned anywhere

else in the record aside from counsel’s question during Jewett’s deposition—which does not constitute evidence in and

of itself—the Court finds that no evidence exists to establish that Carmack was laughing and joking about the incident.

14 When asked multiple times why Carmack was offended, Jewett responded that he could not speak for her and that

Carmack should be asked directly. (Jewett Dep. at Tr. 45, 47–48, 55–56.)

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27-8 at PageID #640.) When asked his own opinion as to the offensiveness of the comment, Jewett

testified that there was no reason to include the comment “I tell her everything about my workplace

and leadership . . . unless you are trying to threaten somebody.” (Jewett Dep. at Tr. 45.) Further,

Jewett indicated that he had never received an email like that when asking Yacko to work the

weekend. (Jewett Dep. at Tr. 53.) Jewett never asked Yacko whether he meant to insult or threaten

Carmack and could not confirm Yacko’s intentions. (Jewett Dep. at Tr. 45.)

In their depositions, Sipler and Jewett were asked whether each of these various incidents

were grounds for terminating Yacko, to which they responded “no.” (Sipler Dep. at Tr. 26–29; Jewett

Dep. at Tr. 17.) Sipler did not know what was used as grounds to terminate Yacko’s employment,

nor did he talk to anyone about why Yacko should be terminated. (Sipler Dep. at 29.)

C. Yacko’s 2022 Mid-Year Performance Review

In 2022, Yacko received a mid-year performance review (“2022 Mid-Year Review”) from his

manager, Jewett. (Yacko Dep. at Tr. 43–44; Doc. No. 27-2 at PageID #354–57.) GM’s mid-year

review includes narratives from the employee’s direct supervisor regarding the employee’s

performance for the first half of the year, as well as a narrative from the employee themselves

reflecting on their own performance. (Dixon Dec. at ¶ 6.) At that time, GM used a nine-box

evaluation system to rank their employees.15 (Yacko Dep. at Tr. 88; DeWildt Dep. at Tr. 93.) Yacko

testified that he believed about “90 percent” of employees ended up in the five box. (Yacko Dep. at

Tr. 89.) Yacko explained that the five box “means you’re doing your job. You’re not exceptional,

15 When asked whether being in the nine box was the highest performance, Yacko responded that he believed a five was

the best score, noting that it was a “weird” scale in that “one is not the worst, and nine is not the best.” (Yacko Dep. at

Tr. 89.)

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but you’re doing your job.” (Id.) In his 2022 Mid-Year Review, Yacko received a four rating, which

he interpreted as “less than being in the five box.” (Id.) In the 2022 Mid-Year Review, when asked

to describe Yacko’s accomplishments that demonstrate the impact Yacko made to GM, Jewett praised

Yacko’s technical-skills and abilities:

“[Yacko’s] greatest strength is his knowledge of the pressroom and his ability to motivate the

trades. He has the respect of his team members. Be more involved with GMS, take on other

responsibilities not directly related to his maintenance role. Mark is a seasoned supervisor

who has the ability to perform very effectively when he wants to.”

(Doc. No. 27-2 at PageID #356.) However, when asked to describe specific examples of how GM

Behaviors were demonstrated as areas of strength and/or opportunity, Jewett described Yacko as

follows:

“Be Inclusive, dismisses opinions contrary to his own. Think customer, does not appropriately

follow up with customers.16 Look ahead, does not align his work with the overall business

strategy. One Team, misses deadlines and does not share information. Be bold, generally

resistant to change. I’ve been in three separate meetings with [Yacko] since the beginning of

the year, one with the assistant plant manager, one with my superintendent, and the other was

with me, as his direct report. Two of the meetings dealt with how he was perceived by others

and one for his attendance. [Yacko’s] technical ability or his performance of getting the most

out of his team has never been question. I look forward to [Yacko] finishing the year strong.”

(Id.) Yacko’s written response to the 2022 Mid-Year Review reads as follows:

“What once I thought were my strengths have now been identified as my areas of opportunity.

I’m a square peg being forced into a round hole. Slowly my edges are being rounded off, but

it appears to be a long confusing process. I’m trying to find my place in this cultural evaluation

the company is under going [sic]. I always strive to achieve positive results when it pertains

to all of GM’s Behaviors. Looking for a strong finish to this year.”

(Id.) Upon receiving his 2022 Mid-Year Review, Yacko reviewed it and discussed it with Jewett.

(Yacko Dep. at Tr. 34–35, 44–45.) Yacko asked whether Jewett would change things that Yacko did

16 “Customers” refers to co-workers, such as the other leaders and employees of the Maintenance Department that Yacko

and his team served at GM Parma. (Dixon Dep. at Tr. 42–43; Yacko Dep. at Tr. 40.)

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not agree with, to which Jewett responded that he would not. (Yacko Dep. at Tr. 45.) Yacko then

responded, “well, then I don’t need a conversation with you about it.”17 (Id.) According to Jewett,

Yacko also said that he “didn’t give a fuck what [Jewett] wrote in the review.”18 (Jewett Dec. at ¶ 6;

Jewett Dep. at Tr. 23.)

D. New Plus/Par/Minus Scale and End-of-Year Performance Review Process

In the second half of 2022, GM changed its performance rating system corporate-wide from

a nine-box rating scale to a three-box rating scale, with employees receiving either a plus, par, or

minus rating. (DeWildt Dep. (Doc. No. 27-4) at Tr. 93; Dixon Dep. (Doc. No. 27-3) at Tr. 62–63.)

According to GM, the purpose of the three-box scale was to provide further clarity to employees

around how they were performing, because the previous nine-box scale made it difficult for

employees to connect performance with the many options under which they were rated.19 (DeWildt

Dep. at Tr. 93–94; Dixon Dep. at Tr. 62–63.)

17 In his deposition, Yacko goes on to assert that Jewett’s comments in the 2022 Mid-Year Review were false. (Yacko

Dep. at Tr. 46.)

18 Following Yacko’s 2022 Mid-Year Review, Jewett believed that Yacko’s performance improved for the second half of

2022. (Yacko Dep. at Tr. 87–88; Jewett Dec. at ¶ 7.) However, during his deposition, Yacko did not agree with Jewett’s

assertion that Yacko’s performance improved because he believed that his “performance was the same the entire year,”

and that while he may have been “perceived differently, … [he] did the same thing … at the beginning of the year as [he]

did at the end of the year.” (Id.)

19 Yacko asserts that GM’s change to the three-box scale was a staged event to make it easier to label employees with a

minus and fire them. (Opposition at PageID #1330.) However, Yacko points to no evidence to support this assertion. To

the contrary, Yacko’s deposition testimony demonstrates the lack of clarity with the nine-box scale and supports GM’s

assertion that the three-box scale was meant to make ratings easier for employees to understand. For example, when

asked whether the nine box was the highest performance, Yacko initially answered “no, I don’t know how it goes.”

(Yacko Dep. at Tr. 88–89.) Yacko then testified, “five, I think is the best. I don’t know … No, one is not the worst, and

nine is not the best. If you see it, you’d see that … It’s weird the way it goes.” (Yacko Dep. at Tr. 89.) Immediately

afterwards, Yacko then explained that the five box—which allegedly was the “best”—simply means “you’re doing your

job. You’re not exceptional, but you’re doing your job.” (Id.) Then, when Yacko was asked for his interpretation of

being placed in the four box, he answered, “it was less than being in the five box.” (Id.) Later in his deposition testimony,

Yacko noted that GM said they changed the ratings scale from the nine box to a “more simpler method.” (Yacko Dep. at

Tr. 92.)

11

Annual reviews for GM managers involved a process called “calibration.” Calibration refers

to a discussion among the HRM and SubHRM leaders regarding an employee’s performance.

(DeWildt Dep. at Tr. 105–106; Dixon Dep. at Tr. 65–66.) This discussion may involve the

employee’s performance relative to results, and/or behaviors, and may include an HR representative

or peers of leaders who also have employees performing the same type of work. (DeWildt Dep. at

Tr. 106; Dixon Dep. at Tr. 65–66.) Performance is evaluated with respect to goals, relativity to peers,

and any specific circumstances that may have come up within an environment that provided additional

complexity for an employee. (Id.) While all employees at GM Parma are discussed, there is a focus

on those who were exceeding expectations and those whose performance was less than satisfactory.

(Dixon Dep. at Tr. 65–66; Gaeschke Dep. (Doc. No. 27-5) at Tr. 47, 54–55.)

Calibration discussions for annual reviews typically occur toward the end of the year.

(Gaeschke Dep. at Tr. 54.) First, the HRM and SubHRM teams meet to discuss GM Parma manager

performances and reach a consensus as to their performance ratings (“HRM/SubHRM Meeting”).

(Gaeschke Dep. at Tr. 47, 53–56, 58; Dixon Dep. at Tr. 66–69; DeWildt Dep. at Tr. 30.) Afterwards,

the HRM team meets alone to confirm that the performance ratings are accurate before officially

submitting the ratings (“HRM Meeting”). (Gaeschke Dep. at Tr. 47, 53–56.)

E. Yacko’s 2022 End-of Year Performance Minus Rating

Sipler took various steps to prepare for the HRM/SubHRM meeting. (Sipler Dec. at ¶¶ 11–

12; Gaeschke Dep. at Tr. 54.) First, in mid-October 2022, Sipler met with Jewett to discuss Yacko’s

2022 performance. (Sipler Dec. at ¶ 11; Doc. No. 27-9 at PageID #657–59.) Sipler instructed Jewett

to bring all his notes to the meeting for discussion. (Doc. No. 27-9 at PageID #659.) Next, following

the meeting with Jewett, Sipler prepared a form documenting the reasons for assigning Yacko a team

12

GM minus rating for his 2022 performance.20 (Sipler Dec. at ¶ 12; Doc. No. 27-9 at PageID #661–

63.) Then, Sipler emailed the form to Jewett for his review, and invited Jewett to add to the form as

appropriate. (Doc. No. 27-9 at PageID #660.) Jewett did not add anything to the form.21 (Jewett

Dep. at Tr. 63–64.)

In mid-November 2022, GM management met for the HRM/SubHRM Meeting. (Gaeschke

Dep. at Tr. 54.) The HRM/SubHRM Meeting lasted approximately two hours. (Dixon Dep. at Tr.

69.) During the HRM/SubHRM Meeting, the performance of all the managers at GM Parma was

discussed, which amounted to over 120 employees. (Dixon Dep. at Tr. 68–69, 71–72.) Discussions

at the HRM/SubHRM Meeting focused on managers who were either exceeding expectations or

whose performance was less than satisfactory.22 (Dixon Dep. at 65–66; Gaeschke Dep. at 54–55.)

20 Yacko asserts that Jewett’s deposition testimony proves that GM manufactured evidence with respect to Sipler’s GM

plus or minus form. (Opposition at PageID #1321.) In his deposition, Jewett testified that he did not believe that bates

no. doc. 002385 was originally part of bates no. doc. 002384 and 002386 because the former is from the old rating system,

while the latter is from the new rating system. (Opposition at PageID #1321; Jewett Dep. at Tr. 68–69.) Upon a closer

review, it appears that bates no. doc. 002385 (Doc. No. 27-9 at PageID #662) appears to be a zoomed-in copy of Exhibit

F from Yacko’s deposition. (Doc. No. 27-2 at PageID #358.) It is unclear to the Court whether Sipler originally included

this page as part of his materials in preparation for the HRM/SubHRM Meeting. During Yacko’s deposition, upon

introduction of Exhibit F, Yacko’s counsel indicated that Exhibit F was created by counsel for litigation purposes, to

which GM’s counsel responded that there was no basis for that accusation. (Yacko Dep. at Tr. 65–66.) Yacko’s counsel

then stated on the record, “Move to strike Exhibit F.” (Yacko Dep. at Tr. 67.) Construing genuine issues of fact in light

of the non-moving party, the Court shall disregard Exhibit F, and shall presume that bates no. doc. 002385 was not

attached to Sipler’s prepared documentation. Nonetheless, as explained later in this Opinion, the Court’s conclusion is

unaffected by this result because Sipler had sufficient documentation prepared for the HRM/SubHRM Meeting and

sufficient knowledge of Yacko’s performance through his meetings and correspondence with Jewett.

21 During his deposition, and after he had indicated that he did not add anything to the form, Jewett was explicitly asked

whether he had wanted to add something to the form but did not. (Jewett Dep. at Tr. 64.) Jewett answered, “no.” (Id.)

22 Yacko asserts that his performance was only discussed for one minute at the HRM/SubHRM Meeting, based on an even

distribution of time for 120 employees being reviewed within two hours. (Opposition at PageID #1318.) However, the

evidence in the record supports that the time spent discussing each manager was not equally distributed. Both Dixon and

Gaeschke testified that the discussions were particularly focused on employees who were either exceeding expectations

or whose performance was less than satisfactory. (Dixon Dep. at Tr. 65–66; Gaeschke Dep. at Tr. 47, 54–55.) The record

reflects that twenty-four employees received a plus rating, while two employees received a minus rating. (Doc. No. 27-

6 at PageID #571–77.) Thus, in light of Dixon and Gaeschke’s deposition testimony, it appears that the HRM/SubHRM

Meeting focused discussions on these twenty-six employees who received either a plus rating or minus rating, more so

than the remaining employees who all received a par rating. (Dixon Dep. at Tr. 65–66; Gaeschke Dep. at Tr. 47, 54–55;

13

At the HRM/SubHRM Meeting, GM leadership conducted a calibration discussion of Yacko’s

annual performance. (Dixon Dep. at Tr. 65–66; DeWildt Dep. at Tr. 30–37; Sipler Dec. at ¶ 13.)

Sipler, having prepared in advance to discuss examples of Yacko’s performance to support a minus

rating, led the discussion about Yacko’s performance23 based on his own observations and feedback,

as well as those shared by Jewett and others. (Sipler Dec. at ¶ 13; Dixon Dep. at Tr. 69–72; Gaeschke

Dep. at Tr. 58.) Any leaders who had a strong opposition to the discussion were encouraged to

provide factual documentation to support their opposition. (Dixon Dep. at Tr. 70.) Although GM

leadership felt that Yacko’s performance improved in the latter half of 2022, a consensus24 was

reached that Yacko would be assigned a teamGM minus rating because he did not meet expectations

for the entire year. (Sipler Dec. at ¶ 13; Doc. No. 27-9 at PageID #661; Jewett Dec. at ¶ 7; Dixon

Dep. at Tr. 66–71; DeWildt Dep. at Tr. 83; Gaeschke Dep. at Tr. 20.) Neither termination nor age

Doc. No. 27-6 at PageID #571–77.) This conclusion is further supported by reviewing Sipler’s “TeamGM Plus or Minus

Business Case – 2023” template. (Doc. 27-9 at PageID #661.) That template contains a box for “TeamGM Plus

Nomination” and “TeamGM Minus Nomination” but contains no listing for a teamGM par rating—thus underscoring the

emphasis for discussion on either high or low performers rather than those who received a par rating. (Id.) Finally, when

Plaintiff’s counsel represented to Gaeschke that the amount of time spent on Yacko at the HRM/SubHRM Meeting was

“30 seconds,” Gaeschke testified that he believed that to be inaccurate. (Gaeschke Dep. at Tr. 46.) Accordingly, because

Yacko has failed to produce evidence to the contrary, the Court rejects the assertion that Yacko’s performance was

discussed for only one minute at the HRM/SubHRM Meeting. (Opposition at PageID #1318.)

23 Yacko contests that Sipler led a thoughtful discussion regarding his performance during the HRM/SubHRM Meeting.

However, as explained further below, the Court rejects Yacko’s argument that Sipler could not have led a thoughtful

discussion based on the amount of time spent discussing Yacko’s performance because the record does not support that

his performance was only discussed for one minute. See supra note 22.

24 Yacko asserts that Dixon refused to explain how the decision was reached to give Yacko a minus rating at the

HRM/SubHRM Meeting. (Opposition at PageID #1318.) In her deposition, Dixon simply testified that there was no

formal mechanism for polling or registering of votes—instead, managers came prepared to discuss each employee’s

examples of their performance that would support a certain rating, and if anyone had strong opposition, they were

encouraged to support their opposition with evidence. (Dixon Dep. at Tr. 69–72.) The fact that formal votes were not

counted at the meeting is irrelevant, as a consensus can still be reached by way of discussion absent formal voting. (Dixon

Dep. at Tr. 66–71.)

14

was discussed at the HRM/SubHRM Meeting with regards to Yacko or any other GM employee.

(Dixon Dec. at ¶ 10; Sipler Dec. at ¶ 13; Gaeschke Dep. at Tr. 36.)

In mid-November 2022, following the HRM/SubHRM Meeting, Sipler met with Jewett to

discuss the decision from the HRM/SubHRM Meeting to issue Yacko a teamGM minus rating, and

the ratings for the other members of Jewett’s team. (Sipler Dec. at ¶ 14; Doc. No. 27-9 at PageID

#664.) Sipler asked Jewett to update Workday, the Company’s human resources information system,

with the ratings, which he did.25 (Sipler Dec. at ¶ 14; Dixon Dep. at Tr. 72.) Shortly after, the HRM

team met to confirm the rankings from the HRM/SubHRM Meeting. (Gaeschke Dep. at Tr. 55–56.)

F. CNN January Article and Performance Separation Program for Firing Minuses

25 Yacko cites to Sixth Circuit precedent for the assertion that if an employer “cannot even give a straight answer” as to

who recommended the employee for termination, a reasonable jury could infer that the employer “is trying to hide

something.” (Opposition at PageID #1331) (citing Coburn v. Rockwell Automation, Inc., 238 F. App’x 112, 122 (6th Cir.

2007)). Specifically, Yacko attempts to create a factual issue regarding the issue of who exactly gave Yacko the teamGM

minus rating. Upon an independent review of the record, the Court finds that no such factual issue exists. First, Yacko

asserts that Jewett denied giving Yacko a minus review. (Opposition at PageID #1322.) Yet, during his deposition, Jewett

was never asked whether he gave Yacko a minus review. Rather, Jewett was asked whether he ever told anybody that

Yacko should be terminated from his employment at GM, to which he answered, “no.” (Jewett Dep. at Tr. 9.) Jewett

was then asked whether anyone ever asked him, to which he again answered, “no.” (Id.) Once more, Jewett was asked,

“did you ever tell anybody, ‘Yacko ought to get a plus or a minus,’” to which he answered, “no.” (Jewett Dep. at Tr. 64.)

This testimony is consistent with the record because Jewett was not a part of the HRM/SubHRM teams that made the

decision. (Dixon Dec. at ¶ 8.) Rather, it was the HRM/SubHRM teams who reached a consensus as to Yacko receiving

a teamGM minus rating, after which Sipler informed Jewett of the rating and asked Jewett to enter the rating into the

Workday system. (Sipler Dec. at ¶ 14; Dixon Dep. at 72; Gaeschke Dep. at Tr. 58.) Thus, Jewett’s testimony that no one

ever asked him whether Yacko deserved a minus is consistent with Sipler and Dixon’s testimony that Jewett ultimately

entered the rating into the system, because while he did enter the rating into Workday, he was not the decision-maker. As

for Yacko’s contention that Sipler’s declaration is inconsistent with his deposition testimony, Sipler was never asked

about what transpired at the HRM/SubHRM Meeting, nor was he asked who the decision-maker was as to Yacko’s rating.

(Sipler Dep. at Tr. 29.) Rather, Sipler was asked whether he personally gave Yacko the minus, to which he answered that

Yacko was “given a minus review … by his supervisor,” Jewett. (Id.) Sipler was then told that Jewett had testified that

he did not do that, and asked if Jewett was lying, to which Sipler simply answered, “no.” (Id.) Sipler was never asked to

clarify, was never asked about the HRM/SubHRM Meeting, and was never asked who made the decision to rate Yacko a

minus—rather than who ultimately “gave” Yacko the minus by way of updating a tag in the HR Workday system. (Id.)

Therefore, the Court rejects Yacko’s assertion that GM has been unable to “even give a straight answer” as to who

recommended him for termination. See infra note 59. Accordingly, in light of the vastly consistent testimony and

documentation on this point—being that the HRM/SubHRM teams reached a consensus to award Yacko the minus,

following which Sipler asked Jewett to make the change in the computer system—the Court finds no genuine issue of

material fact sufficient to survive summary judgment. (Sipler Dec. at ¶ 14; Dixon Dep. at 72; Gaeschke Dep. at Tr. 58.)

15

On January 31, 2023, CNN issued a news report following GM’s 2022 fourth-quarter earnings

(“January CNN Article”). (Doc. No. 27-2 at PageID #416–18.) The January CNN Article reported

that GM said it would reduce its staff in 2023 as part of its effort to cut $2 billion in costs over the

next two years.26 (Id. at PageID #418.) The January CNN Article noted that GM’s reduction would

be handled through attrition and not layoffs, and that GM would end the year “slightly lower” in

headcount. (Id.) GM was focused on reducing costs in manufacturing overall, which included

looking at people as part of cost. (DeWildt Dep. at Tr. 79.)

In February 2023, GM implemented a performance separation plan to create a more

performance driven culture. (DeWildt Dec. at ¶ 2; DeWildt Dep. at Tr. 82.) Specifically, Tammy

DeWildt (“DeWildt”), an HR director at GM, was tasked with overseeing the performance separation

plan in the manufacturing division by selecting for termination employees who received a teamGM

minus annual performance rating in 2022. (DeWildt Dec. at ¶ 2; DeWildt Dep. at Tr. 82.) The plan

involved terminating individuals who were not meeting performance expectations. (DeWildt Dec. at

¶ 2; DeWildt Dep. at Tr. 41, 53, 82.) After confirming the rating that they were not meeting

expectations, the employees who received a teamGM minus rating would be terminated. (DeWildt.

Dep. at Tr. 82–91.) DeWildt identified GM employees for termination, including Yacko, through a

report that was run on GM’s Workday system which identified any GM employees who had received

a teamGM minus rating in 2022.27 (DeWildt Dep. at Tr. 84–90.)

26 Although GM witnesses testified that they were unable to confirm that GM had provided this information to CNN, the

same information appeared in GM’s internal email circulated regarding the VSP. (Doc. No. 27-6 at PageID #631.)

27 DeWildt could not recall whether she clicked the button in Workday herself to run the report, or whether another

member of her HR team clicked the button to run the report. (DeWildt Dep. at Tr. 88.)

16

In February 2023, DeWildt led a video conference call with various GM HR-LR site directors,

including Crystal Dixon (“Dixon”), the HR-LR site director for GM Parma, to discuss the

performance separation plan procedures.28 (Dixon Dec. at ¶ 12; Doc. No. 27-6 at PageID #582; Dixon

Dep. at Tr. 61–62.) Jim Gaeschke, the GM Parma plant director, was also present on this call.

(Gaeschke Dep. at Tr. 12, 15–16.) DeWildt explained during this presentation that GM decided to

terminate underperforming managers29 in manufacturing to further its goal of maintaining a high

performing work culture, and that the company identified underperforming managers30 as those who

received teamGM minus ratings for 2022. (Dixon Dec. at ¶ 12; Doc. No. 27-6 at PageID #589–90;

Dixon Dep. at Tr. 61–62.) Based on a review of all employees who received a teamGM minus rating

in their 2022 annual review, 10131 employees were identified for termination. (Doc. No. 27-7 at

PageID #634.) This list included two employees from GM Parma—Yacko and Craig Conrad32

(“Conrad”). (DeWildt Dep. at Tr. 132–33.)

28 DeWildt’s PowerPoint presentation included a “Performance Exits Timeline” with regards to manufacturing. (Doc.

No. 27-6 at PageID #594.) That timeline indicates that HRLR Participants and Ops Leads were not notified as to the

coming terminations until February 24, 2023, and February 27, 2023, respectively. (Id.) This timeline is consistent with

the testimony surrounding the HRM/SubHRM Meeting in which various GM employees noted that termination was not

discussed at that meeting, and that they were unaware that the minus-ratings would later be considered as grounds for

termination. (Gaeschke Dep. at Tr. 45–46; Sipler Dep. at Tr. 29; Dixon Dec. at ¶¶ 9–10; DeWildt Dep. at Tr. 32, 35, 80.)

29 The record reflects that the relevant GM witnesses did not consider age during any decision-making as to both Yacko’s

termination and his receiving of a teamGM minus rating. (DeWildt Dec. at ¶ 2; Sipler Dec. at ¶ 13; Gaeschke Dep. at Tr.

36; Dixon Dec. at ¶ 10; Yacko Dep. at Tr. 134.)

30 In Workday, GM coded the termination of each of the employees as “involuntary job performance.” (Dixon Dec. at ¶

12.)

31 DeWildt’s declaration provides that 101 employees were terminated as part of the performance separation plan. (Doc.

27-7 at PageID #634.) However, GM’s PowerPoint presentation indicates that 121 employees were identified for

termination. (Doc. No. 27-6 at PageID #598.)

32 Conrad was born in 1979. (Doc. No. 27-2 at PageID #381.) In addition to Conrad as a potential similarly-situated

employee, Yacko asserts that Spells—another GM employee with the title Group Leader Maintenance—is also a

similarly-situated employee to him. (Doc. 34-1 at PageID #1408–13.)

17

G. Yacko’s Termination and Replacement by Roger East

To move forward with the terminations, DeWildt asked Dixon to confirm that the minus

placement was appropriate for Yacko and Conrad, which she did.33 (DeWildt Dep. at Tr. 82–83, 90–

91; 133–34; Dixon Dep. at Tr. 61–62.) After Dixon confirmed the minus ratings, the next step of

Yacko’s termination was a meeting with Dixon and Gaeschke (“Termination Meeting”). (Doc. No.

27-6 at PageID #597, 603, 607; Yacko Dep. at Tr. 101–04; Doc. 27-2 at PageID #372; Gaeschke Dep.

at Tr. 18–19.)

On February 28, 2023,34 Yacko’s Termination Meeting took place on a video call via

Microsoft Teams. (Doc. No. 27-6 at PageID #630; Yacko Dep. at Tr. 100–02; Gaeschke Dep. at Tr.

18.) The Termination Meeting began with Gaeschke informing Yacko that he was being terminated

for behavioral performance issues. (Yacko Dep. at Tr. 102; Gaeschke Dep. at Tr. 18, 20.) Yacko

responded that he did not “have the slightest idea” what Gaeschke was talking about and that

Gaeschke would have to explain it to him or clarify what behavioral performance issues meant.35

33 Yacko suggests that DeWildt is not credible because she relied on Dixon to confirm that placement of teamGM minus

ratings was warranted prior to effectuating terminations, after previously responding that she had not spoken with anyone

about Yacko. (Opposition at PageID #1319; DeWildt Dep. at Tr. 50.) DeWildt responded to this in her deposition that

she did not speak to anyone about the specifics of Yacko’s case, but rather, simply made a generic request to plant

leadership teams to confirm teamGM minus placements for employees prior to termination. (DeWildt Dep. at Tr. 50–

51.) The general nature of DeWildt’s request appears consistent with Dixon’s testimony. (Dixon Dep. at Tr. 61–62.)

34 It should be noted that the parties’ briefings are inconsistent as to the date that Yacko was terminated. GM asserts that

Yacko was terminated on February 28, 2023. (Motion at PageID #263; Motion at PageID #263.) During Yacko’s

deposition, Yacko initially testified that he was terminated on March 1, 2023, but later did not dispute the assertion that

the termination occurred on February 28, 2023. (Yacko Dep. at Tr. 99–100, 148.) However, despite Yacko’s concession

during his deposition that he did not dispute the February termination date, in his Opposition he identifies his termination

date as March 1, 2023. (Opposition at PageID #1314, 1318.) Upon independently reviewing the record, the Court

determines that Yacko was terminated on February 28, 2023. (Doc. 27-6 at PageID #630.)

35 In his deposition, Gaeschke clarified that “behavioral performance issues” meant that Yacko did not meet GM

expectations as a GM employee for the entire calendar year of 2022. (Gaeschke Dep. at 20.) Gaeschke was then asked

whether he knew anything about Yacko’s “behavioral performance issues,” to which he explained that his knowledge

came from the HRM/SubHRM Meeting he attended where Yacko’s performance was discussed. (Gaeschke Dep. at Tr.

22–25.) Gaeschke indicated that Yacko’s performance was reviewed during that meeting, and that complaints about

18

(Yacko Dep. at Tr. 102–03.) Gaeschke again repeated that Yacko was fired for behavioral

performance, and then turned it over to Dixon who would give Yacko “all the information you need

to know.” (Yacko Dep. at Tr. 102–04.) Gaeschke then left the Termination Meeting call, and Dixon

provided Yacko with information about formally exiting the company.36 (Yacko Dep. at Tr. 103.)

Prior to his termination, Yacko was making over $120,000.00/year37 plus benefits and planned to

retire in 2026 or 2027. (Yacko Dep. at 85.)

After the Termination Meeting, Gaeschke notified Sipler about Yacko’s termination.38 (Sipler

Dec. at ¶ 15.) Although Yacko was terminated, his position was not eliminated. (Sipler Dec. at ¶

17.) Instead, Sipler replaced Yacko by transferring Roger East (“East”),39 a group leader in

Yacko’s work performance and his performance issues in 2022 were discussed and shared with him. (Id.) When

Gaeschke was asked whether he asked anyone at the HRM/SubHRM Meeting how they knew that their information was

accurate, Gaeschke answered that he did not. (Gaeschke Dep. at Tr. 25.)

36 Each employee terminated as part of the performance separation plan was offered a severance package in exchange for

the execution of a separation agreement. (Dixon Dec. at ¶ 12.)

37 The record is unclear as to Yacko’s exact salary at the time he was terminated. In his deposition, Yacko did not dispute

that his two-week pay rate as of February 28, 2023 was $4,934.25, pursuant to a purported pay stub from GM. (Yacko

Dep. at Tr. 109.) Yacko was unable to verify his annual salary in his deposition. (Yacko Dep. at Tr. 107 (“No, I don’t

know. 120,000, without premium. Or with shift premium, 130,000, maybe. I’m not sure.”).) During Dixon’s deposition,

Dixon was presented with a purported copy of Yacko’s 2021 W-2 tax record denoting Yacko’s salary at $149,148.84.

(Dixon Dep. (Doc. No. 27-3) at Tr. 21–26.) Defendants’ counsel objected to Dixon’s ability to authenticate or speak to

the tax record produced by Plaintiff’s counsel. (Dixon Dep. at Tr. 22–24.) Instead, Defendants’ counsel noted that GM

had produced Yacko’s tax records themselves and agreed to the authenticity as to those records. Similarly, during

DeWildt’s deposition, when presented with the same purported copy of Yacko’s 2021 W-2 tax record, DeWildt testified

that she was unable to validate the tax record and could not verify Yacko’s salary. (DeWildt Dep. (Doc. No. 27-4) at Tr.

61–65, 72.) For purposes of this Opinion, given the lack of clarity surrounding Yacko’s annual salary at the time he was

terminated and the disputes regarding the authentication of the purported W2 tax record—which, notably, was from 2021

and would not indicate Yacko’s salary at the time of his firing regardless—the Court shall refer to Yacko’s salary as “over

$120,000/year” without making a final factual determination as to Yacko’s salary amount.

38 In his declaration, Sipler avers that he did not know anything about Yacko’s termination until after it had already

occurred. (Sipler Dec. at ¶ 15.) Sipler further avers that Gaeschke never made any negative statements to him about

Yacko, and that Sipler had never heard Gaeschke make negative comments about Yacko to anyone else. (Sipler Dec. at

¶ 16.)

39 East was born in 1970. (Dixon Dec. at ¶ 20.) Yacko’s assertions that East was a similarly-situated employee who was

treated more favorably will be addressed below.

19

maintenance, from first shift into Yacko’s former third-shift position. (Id.) Sipler later hired a new

employee to backfill East’s position on the first shift following other reorganization decisions. (Id.)

H. VSP to Existing Employees and March CNN Article

On March 9, 2023, GM sent an email (“VSP Email”) announcing that GM was offering a

Voluntary Separation Program (“VSP”) to salaried employees. (Dixon Dep. at Tr. 20–21; DeWildt

Dep. at Tr. 9–11; Gaeschke Dep. at Tr. 27; Doc. No. 27-6 at PageID #631.) The VSP Email referenced

GM’s “plan to reduce $2 billion in structural costs over the next two years” and listed four major

opportunities to do so, the fourth of which was “[r]educing salaried staff through attrition, primarily

in the United States.” (Doc. No. 27-6 at PageID #631.) The VSP provided certain salaried

employees40 the opportunity to leave GM with up to one-year of salary in exchange for executing a

severance agreement. (DeWildt Dep. at Tr. 71–72; Dixon Dec. at ¶ 19.)

To participate in the VSP, an employee had to apply for the program, and GM had to approve

the employee’s application. (Dixon Dec. at ¶ 19; Dixon Dep. at Tr. 27–28.) Employees had the

choice not to apply to the VSP if they preferred to stay employed. (Dixon Dep. at Tr. 30.) Similarly,

GM had discretion to deny approval for employees to participate in the VSP. (Dixon Dep. at Tr. 27–

28; Dixon Dec. at ¶ 19.) At GM Parma, approximately 110 salaried employees were eligible to apply

for the VSP. (Dixon Dec. at ¶ 2; Doc. No. 27-6 at PageID #571–77.) Fourteen GM Parma employees

applied for the VSP, and thirteen were approved. (Id.) GM denied East’s VSP application because

it deemed him essential to the operation of GM Parma. (Dixon Dec. at ¶ 20.) Because Yacko was

40 Managers with at least five years’ service to GM were eligible to apply for the VSP. (Dixon Dec. at ¶ 19; Doc. No. 27-

6 at PageID #631.) The VSP was not offered to any salaried employee who was not currently employed at GM. (DeWildt

Dep. at Tr. 71.)

20

terminated before the VSP was offered, he was not eligible to apply. (Yacko Dep. at Tr. 137; DeWildt

Dep. at Tr. 71; Dixon Dec. at ¶ 19.)

On March 9, the same day as the VSP Email, CNN published an article about the VSP and

GM’s plans to reduce costs by $2 billion over the next two years. (Doc. No. 27-2 at PageID #419–

21.)

II. Procedural History

On June 11, 2023, Yacko filed suit against GM and Gaeschke in the Court of Common Pleas

of Cuyahoga County, Ohio. (Doc. No. 1-1.) In his Complaint, Yacko sets forth the following three

Counts: (1) age discrimination in violation of Ohio Revised Code § 4112.02 against both GM and

Gaeschke (Count One); (2) breach of employment contract against both GM and Gaeschke (Count

Two); and (3) defamation by libel and slander against Gaeschke (Count Three). (Id. at ¶¶ 33–35.)

On August 14, 2023, GM41 removed Yacko’s lawsuit to this Court. (Doc. No. 1.) On August 31,

2023, GM filed its Answer. (Doc. No. 5.)

On November 3, 2023, Gaeschke filed a Motion to Dismiss, seeking dismissal of Yacko’s

claims against him only. (Doc. No. 10.) On February 28, 2024, the Court issued a Memorandum

Opinion and Order granting in part and denying in part Gaeschke’s Motion to Dismiss. (Doc. No.

19.) Specifically, the Court granted Gaeschke’s Motion to Dismiss as to Yacko’s claims for age

discrimination/aiding and abetting (Count One) and breach of contract (Count Two) but denied

41 In its Notice of Removal, GM noted that Yacko had attempted to serve Gaeschke at its Parma Plant and contended that,

because Gaeschke did not work in Ohio and did not have a physical presence in the state since before Yacko filed his

Complaint, Yacko had “failed to properly serve Gaeschke.” (Doc. No. 1 at PageID# 2 n.1; Doc. No. 1-4.) On September

5, 2023, the Court ordered Yacko to respond to this contention. (Non-Document Order, Sept. 5, 2023.) After Yacko filed

a Response indicating that Gaeschke had authorized GM’s counsel to accept service on his behalf, the Court ordered

Yacko to re-attempt service upon Gaeschke via GM’s counsel. (Doc. No. 6; Non-Document Order, Sept. 20, 2023.)

Yacko completed service on Gaeschke on October 18, 2023. (Doc. No. 13.)

21

Gaeschke’s Motion to Dismiss as to Yacko’s claim for defamation (Count Three). (Id.) On March

8, 2024, Gaeschke filed his Answer. (Doc. No. 20.)

On July 17, 2024, following discovery, GM and Gaeschke filed a Motion for Summary

Judgment (“Motion”), seeking judgment in their favor on all remaining counts. (Doc. No. 27.) On

August 20, 2024, Yacko filed his Opposition to GM and Gaeschke’s Motion for Summary Judgment

(“Opposition”). (Doc. No. 33.) On September 17, 2024, GM and Gaeschke filed a Reply to Yacko’s

Opposition (“Reply”). (Doc. No. 37.)

Accordingly, GM and Gaeschke’s Motion for Summary Judgment is ripe for a decision.

III. Standard of Review

Summary judgment is proper “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). “A

dispute is ‘genuine’ only if based on evidence upon which a reasonable jury could return a verdict in

favor of the non-moving party.” Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 487 (6th Cir.

2006). “Thus, ‘the mere existence of a scintilla of evidence in support of the plaintiff’s position will

be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.’”

Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 252 (1986)). A fact is “material . . . only if its resolution might affect the outcome

of the suit under the governing substantive law.” Henderson, 469 F.3d at 487.

At the summary judgment stage, “[a] court should view the facts and draw all reasonable

inferences in favor of the non-moving party.” Pittman v. Experian Info. Sols., Inc., 901 F.3d 619,

628 (6th Cir. 2018). In addition, “the moving party bears the initial burden of showing that there is

no genuine dispute of material fact.” Ask Chems., LP v. Comput. Packages, Inc., 593 F. App’x 506,

22

508 (6th Cir. 2014). The moving party may satisfy this initial burden by “identifying those parts of

the record which demonstrate the absence of any genuine issue of material fact.” Lindsey v. Whirlpool

Corp., 295 F. App’x 758, 764 (6th Cir. 2008). “[I]f the moving party seeks summary judgment on an

issue for which it does not bear the burden of proof at trial, the moving party may [also] meet its

initial burden by showing that ‘there is an absence of evidence to support the nonmoving party’s

case.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the moving party

satisfies its burden, “the burden shifts to the non-moving party who must then point to evidence that

demonstrates that there is a genuine dispute of material fact for trial.” Ask Chems., 593 F. App’x at

508–09. “[T]he nonmoving party may not simply rely on its pleading, but must ‘produce evidence

that results in a conflict of material fact to be solved by a jury.’” MISC Berhad v. Advanced Polymer

Coatings, Inc., 101 F. Supp. 3d 731, 736 (N.D. Ohio 2015) (quoting Cox, 53 F.3d at 150).

IV. Analysis

A. Age Discrimination (Count One)

In Count One, Yacko alleges that GM terminated him for a “false reason” in order to prevent

him from “remaining employed until retirement” and “obtaining a retirement wage buy out while he

is at retirement age.” (Compl. at ¶ 33.) Yacko also alleges that, if he did commit a disciplinary

offense, GM did not provide him with the progressive discipline that was offered to “other and

younger managers so as to save his job,” thereby constituting “age discrimination in violation of

[Ohio Revised Code §] 4112.02 et seq.” (Id.)

Ohio Revised Code section 4112.02, provides that it shall be an unlawful discriminatory

practice “[f]or any employer, because of the . . . age . . . of any person, to discharge without just

cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure,

23

terms, conditions, or privileges of employment, or any matter directly or indirectly related to

employment.” Ohio Rev. Code § 4112.02(A). Age discrimination claims brought under Ohio law

“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) (quoting Wharton v. Gorman–Rupp Co., 309

F. App’x 990, 995 (6th Cir. 2009)) (alteration in original).

“An employee can establish an age discrimination case by either direct or circumstantial

evidence.” Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 410 (6th Cir. 2008). Here,

Yacko relies on circumstantial evidence of age discrimination. (Opposition at PageID #1327, 1330.)

Claims relying on indirect evidence of age discrimination are analyzed under the McDonnell Douglas

burden-shifting framework. See Willard v. Huntington Ford, Inc., 952 F.3d 795, 807 (6th Cir. 2020);

Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530, 536 (6th Cir. 2014). Under that framework,

the plaintiff must first produce “‘evidence from which a reasonable jury could conclude that he or she

established a prima facie case of discrimination’ before the burden shifts to the employer to offer a

legitimate, non-discriminatory reason for the adverse employment action.” Willard, 952 F.3d at 807

(quoting Blair v. Henry Filters, Inc., 505 F.3d 517, 524 (6th Cir. 2007)). The plaintiff must then rebut

the proffered reason by producing “evidence from [] which a reasonable jury could conclude that the

proffered reason is actually a pretext for unlawful discrimination.” Id. (quoting Blair, 505 F.3d at

524); see also Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 812 (6th Cir. 2011) (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). As the Sixth Circuit recently explained:

As we have clarified before, the McDonnell Douglas burden-shifting framework

allocates “the burden of production and [provides] an order for the presentation of

proof in [employment discrimination] cases.” Provenzano, 663 F.3d at 812 (last

alteration in original) (emphasis added) (citing Cline v. Catholic Diocese of Toledo,

206 F.3d 651, 659 (6th Cir. 2000)). Thus, at the first stage of the burden-shifting

framework, we do not ask whether a jury could conclude that the plaintiff has proven

24

its prima facie case by preponderant evidence, but rather whether “a reasonable jury

could conclude that a prima facie case of discrimination has been established.”

Provenzano, 663 F.3d at 812 (quoting Macy v. Hopkins Cty. Sch. Bd. of Educ., 484

F.3d 357, 364 (6th Cir. 2007)). At the pretext stage, the plaintiff's burden of production

“merges” with his ultimate burden of persuasion to show that age discrimination was

the but-for cause of his termination. Id. (quoting Tex. Dep't of Cmty. Affairs v. Burdine,

450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).

Willard, 952 F.3d at 807.

The Court will examine each stage, in turn, below.

1. Prima Facie Case for Age Discrimination

To establish a prima facie case of discrimination, a plaintiff must show that (1) he was a

member of a protected class (older than 40 years old); (2) he suffered an adverse employment action;

(3) he was qualified for the position held; and (4) he was replaced42 by someone outside of the

protected class or similarly situated non-protected employees were treated more favorably. See

Pelcha v. MW Bancorp., Inc., 988 F.3d 318, 326 (6th Cir. 2021); Geiger v. Tower Auto., 579 F.3d

614, 622–23 (6th Cir. 2009). In age discrimination cases, the “fourth element is modified to require

replacement not by a person outside the protected class, but merely replacement by a significantly

younger person.” Grosjean v. First Energy Corp., 349 F.3d 332, 335 (6th Cir. 2003) (citing O’Connor

v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311–13 (1996)).

Establishing a prima facie case of age discrimination is a “light burden [that] is ‘easily met’

and ‘not onerous.’” Pelcha, 988 F.3d at 326 (quoting Willard, 952 F.3d at 808 (6th Cir. 2020)

42 Yacko correctly notes that the Supreme Court of Ohio has found that the fourth factor may be satisfied if the plaintiff’s

“discharge permitted the retention of” a person not belonging to the protected class, as an alternative to the plaintiff being

“replaced” by a person not belonging to the protected class. (Opposition at PageID #1327) (citing Coryell v. Bank One

Trust Co. N.A., 101 Ohio St. 3d 175, 180 (2004)). However, this clarification raises a moot point because GM has

conceded that East replaced Yacko. (See Motion at PageID #266) (“The record is undisputed that GM replaced Yacko

with Roger East.”).

25

(quoting Provenzano, 663 F.3d at 813)). “[T]his light review must be distinguished from the more

rigorous comparison conducted at the later stages” of the analysis. Provenzano, 663 F.3d at 814.

“The sole function of the prima facie stage of the burden-shifting framework is to raise a rebuttable

presumption of discrimination by eliminating the most common nondiscriminatory reasons for the

employer’s treatment of the plaintiff, such as the plaintiff is unqualified for the position or not a

member of the protected group.” Willard, 952 F.3d at 808 (quoting Cline, 206 F.3d at 660) (internal

quotation marks and alterations omitted). It is “not meant to stymie plaintiffs, but simply serves to

bring the litigants and the court expeditiously and fairly to the ultimate question.” Cline, 206 F.3d at

660 (internal quotation marks omitted); see also Willard, 952 F.3d at 808.

The first three elements of Yacko’s prima facie case are satisfied. Yacko was a member of

the protected class because he was over the age of forty, and his termination constitutes an adverse

employment action. Moreover, GM’s Motion does not dispute that Yacko was qualified for the

position of Group Leader—Maintenance.43 Thus, the only issue is whether Yacko has satisfied the

fourth element, i.e., that he was replaced by a significantly younger person or that similarly situated

non-protected employees were treated more favorably.

i. Replaced by a Younger Employee

43 GM does not appear to dispute that Yacko was qualified for his position from a technical-skills standpoint—which is

supported by the record. (See, e.g., Doc. No. 27-2 at PageID #356; Jewett Dec. at ¶ 2; Sipler Dec. at ¶ 6.) Instead, GM

contends that Yacko received a teamGM minus rating, and that his teamGM minus rating was the basis for his later

termination. (Motion at PageID #267–69.) However, GM does not argue in its Motion that Yacko’s teamGM minus

rating made him unqualified for his position—instead, GM frames Yacko’s teamGM minus as its “legitimate, non-

discriminatory reason for Yacko’s termination.” (Motion at PageID #266–67.) Accordingly, the Court will construe the

third element of Yacko’s prima facie case as uncontested by GM’s Motion, and will instead analyze GM’s assertions

regarding Yacko’s teamGM rating in relation to GM’s burden to articulate a legitimate, non-discriminatory reason for

Yacko’s termination.

26

In its Motion, GM first submits that Yacko has failed to demonstrate that he was replaced by

a significantly younger person. (Motion at PageID #266.) GM cites to Grosjean as establishing a

bright-line rule that “in the absence of direct evidence that the employer considered age to be

significant, an age difference of six years or less between an employee and a replacement is not

significant” to satisfy a prima facie case. (Id.) GM then asserts that the record is undisputed that

Yacko was replaced by East, who is a mere six years younger than him. (Id.) Thus, GM contends

that Yacko cannot satisfy his prima facie burden because East is six years younger than him, and he

has no evidence that any GM manager considered East to be significantly younger than him. (Id.)

In his Opposition, Yacko contends that Grosjean only opined that an age difference of “six

years or less” is not significant in the absence of additional direct evidence. (Opposition at PageID

#1328.) Yacko thus asserts that the “six year and younger” test is inapplicable to this case because

Yacko is six years and eight months older than East. (Id. at PageID #1327.) Yacko contends that the

“substantially younger” determination must be evaluated on a case-by-case basis. (Id. at PageID

#1328.) Yacko further contends that East’s 2018 performance review referencing his ability to return

to school for his bachelor’s degree,44 in comparison to Dixon’s knowledge that Yacko was past his

retirement age, could constitute direct evidence for a jury to find that GM considered their age

difference to be significant. (Id. at PageID #1328–29.)

In its Reply, GM asserts that Yacko’s distinction regarding six years “and eight months” is

inconsequential. (Reply at PageID #1420.) GM submits that Yacko does not cite any case law

supporting the contention that six years is insignificantly younger, while six years and eight months

44 At the end of East’s 2018 Year-End Review, East’s individual development plan notes: “Roger, you are still young

enough and have the brain powrer, [sic] to go back to school and get your Electrical or a Computer Science, bachelor’s

degree.” (Doc. No. 33-3 at PageID #1364.)

27

is significantly younger. (Id.) Rather, GM contends that cases within this jurisdiction generally find

an age difference of less than ten years insufficient to satisfy the prima facie burden and, when such

a disparity is sufficient, it is only because some other evidence of age bias exists. (Id.) GM asserts

that Yacko has no evidence of an age bias, and therefore, the slight difference between Yacko and

East is insufficient to support Yacko’s prima facie case for age discrimination. (Id.)

The Sixth Circuit has established that in the absence of direct evidence that the employer

considered age to be significant, an age difference of six years or less between an employee and a

replacement is not significant. Grosjean, 349 F.3d at 340. In Grosjean, the Sixth Circuit directly

addressed the issue of what constitute a “significantly younger” replacement. Id. In looking to sister

circuits, the court determined that age differences of ten or more years generally met the significantly

younger requirement for age discrimination, while differences of less than ten years did not. Id. at

336–398. To not conflict with its prior precedent in which an eight-year difference was found to be

significant, the court concluded that an age difference of six years or less, without direct evidence to

the contrary, was not significant. Id. at 340.

The Sixth Circuit has clarified that Grosjean created a “zone of discretion in age-

discrimination cases involving replacement by a person who is between six and ten years younger

than the plaintiff.” Blizzard, 698 F.3d at 284. Thus, age differences of “six to ten years … must be

considered on a case-by-case basis.” Compare Blizzard, 698 F.3d at 284 (finding six-and-a-half-year

age difference sufficient to create material fact at summary judgment stage), with Scola v. Publix

Supermarkets, Inc., 557 F. App’x 458, 467 (6th Cir. 2014) (finding seven-year age difference

insufficient to support prima facie case).

28

In Scola, the Sixth Circuit evaluated the district court’s determination that a seven-year age

difference did not constitute a “significantly younger” difference. 557 F. App’x at 467. Aside from

the seven-year age difference, the only evidence of discrimination consisted of comments made by

another employee, who called the plaintiff an “old lady.” Id. However, that comment was insufficient

to support plaintiff’s case because the employee who made the comment “was not a decisionmaker”

with respect to the promotions at-issue, “nor w[as] his statement[] related to the decision-making

process.” Id. Therefore, the seven-year age difference, “without more, was not significant, and was

not enough to give rise to an inference of discrimination in the eyes of a reasonable factfinder.” Id.

The Court finds Yacko’s case to be analogous to Scola and concludes that the age difference

between Yacko and East is not significant. Although Yacko correctly points out that an age difference

should be evaluated on a case-by-case basis rather than under Grosjean’s brightline six-year rule,

Yacko fails to demonstrate the requisite facts required to show that GM considered Yacko and East’s

age difference to be significant. (Opposition at PageID #1327–29.) Numerous witnesses confirmed

that age did not factor into the decision for East to replace Yacko’s position.45 (Gaeschke Dep. at Tr.

35–36; Sipler Dep. at Tr. 48.) Even Yacko, when asked during his deposition whether Jewett, Sipler,

or Gaeschke had any bias against him because of his age, testified that he “can’t say either way.”46

45 In his Opposition, Yacko asserts that Dixon initially testified that “she knew nothing” about Yacko and East’s age, and

then later submitted a declaration that included Yacko and East’s ages. (Opposition at PageID #1328.) Upon reviewing

the record, the Court finds this point to be irrelevant. In her deposition, Dixon was not asked whether she “knew anything”

about Yacko or East’s age. (Dixon Dep. at Tr. 20.) Rather, Dixon was simply asked whether she knew what East’s age

was in 2023, and whether she knows what Yacko’s age was in 2023. (Id.) The fact that Dixon was able to refer to

company records at a later point, determine East and Yacko’s ages, and include them in her declaration has no bearing on

her ability to testify to those ages at a specific moment in time during her deposition. (Id.) To the contrary, Dixon’s

deposition testimony appears to suggest that at the time that decisions were being made in 2023, she was not aware of

either East or Yacko’s ages, which therefore could not have factored into any decision-making process. (Id.)

46 After being unable to confirm whether Jewett, Sipler, or Gaeschke harbored bias against him due to his age, Yacko was

asked whether it was possible that he was terminated for reasons other than his age. (Yacko Dep. at Tr. 132–33.) Yacko

29

(Yacko Dep. at Tr. 134.) Aside from the age difference, the only evidence Yacko offers to support

that GM considered his age difference with East to be significant is East’s 2018 year-end performance

review referencing East’s ability to return to school and obtain a bachelor’s degree. (Doc. No. 33-3

at PageID #1364.) But this comment was made by Gilberto Crespo, who, just as in Scola, was neither

the final decisionmaker for terminating Yacko or appointing East in his place, nor was his statement

related to the decision-making process as it occurred in 2018. (Id.; Dixon Dep. at Tr. 89–91.)

Therefore, because the age difference between Yacko and East was not significant, Yacko

fails to satisfy the fourth element of his prima facie case by showing that he was replaced by a

significantly younger employee.

ii. Similarly Situated Younger Employee

In his Opposition,47 Yacko asserts, as a second attempt to satisfy the fourth element of his

prima facie case, that similarly situated non-protected employees were treated more favorably than

him. (Opposition at PageID #1329–30.) First, Yacko contends that East was treated more favorably

than him because he also had a “bad record” but was not terminated. (Opposition at PageID #1329.)

Second, Yacko asserts that Conrad was treated more favorably than him, even though he was

terminated alongside Yacko, because Conrad was permitted to participate in a performance

improvement plan (“PIP”) in 2019 when facing poor performance discipline. (Id.) Finally, Yacko

contends that Brian Spells (“Spells”)—another GM employee with the title Group Leader

responded that the reason for his firing was “totally nonsensical.” (Yacko Dep. at Tr. 133.) Yacko was asked again

whether he received the minus rating specifically because of his age, to which Yacko responded, “I don’t know if it came

into their mind or not.” (Id.)

47 In its initial Motion, GM did not address the issue of whether a similarly situated non-protected employee was treated

more favorably than Yacko. Rather, this argument was raised by Yacko in his Opposition. (Opposition at PageID #1329–

30.) GM responds to this argument in its Reply. (Reply at PageID #1420.)

30

Maintenance—was treated more favorably than him by being given a par rating even while showing

signs of ignoring Jewett and not learning his job. (Id.)

In its Reply, GM denies that Conrad was treated more favorably than Yacko.48 (Reply at

PageID #1420.) First, GM asserts that there is no evidence that Conrad was placed on a PIP.49 (Id.)

Second, GM asserts that even if Conrad was placed on a PIP, the record fails to establish that he was

similarly situated to Yacko because there is no evidence that Conrad or Yacko reported to the same

managers, had the same performance deficiencies, and the alleged PIP took place three years earlier.

(Id.) GM does not address Yacko’s contentions that East and Spells were similarly situated and

treated more favorably than him because they did not receive teamGM minus ratings on similar

behavior.50 (Reply at PageID #1424.)

To analyze whether two individuals are similarly situated, “the question is whether the

plaintiff has ‘demonstrate[d] that he or she is similarly-situated to the non-protected employee in all

relevant respects.’” Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 522 (6th Cir. 2008) (quoting

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998)). “Relevant factors

used to compare a complainant’s treatment to another individual include ‘[dealing] with the same

48 In its Reply, GM refers to Conrad as “Employee B.” (Reply at PageID #1420.) The Court shall refer to Conrad by his

name for consistency and to avoid confusion.

49 GM admits that Conrad’s 2019 mid-year evaluation states that his manager “was going to place him on a PIP.” (Reply

at PageID #1420; Doc. No. 33-2 at PageID #1349.) However, GM contends that there is no testimony from witnesses

with personal knowledge or documents to establish that Conrad was actually placed on a PIP, or what the content and

outcome of that PIP was. (Id.) The Court rejects this argument. At a minimum, the admission that Conrad’s 2019 mid-

year evaluation references placing him on a PIP compared with DeWildt’s inability to confirm whether Conrad was

actually placed on a PIP creates a genuine issue of material fact on this point. (Compare DeWildt Dep. at Tr. 133, with

Reply at PageID #1420.) For purposes of this Opinion, the Court shall presume that Conrad was placed on a PIP.

50 GM briefly notes that whether Spells deserved a teamGM minus rating does not show pretext because the “possibility

that a jury might disagree with the wisdom of the company’s decision does not show pretext.” (Reply at PageID #1424.)

However, GM asserts this within the context of disproving pretext rather than to dispute any prima facie case. (Id.) The

Court shall therefore address these arguments in its later discussion of pretext.

31

supervisor, [being] subject to the same standards and . . . [engaging] in the same conduct without such

differentiating or mitigating circumstances that would distinguish their conduct or the employer’s

treatment of them for it.’” Townes v. Oprisch, No. 5:08-CV-1218, 2009 WL 10723009, at *4 (N.D.

Ohio July 31, 2009) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 582-583 (6th Cir. 1992)).

The Court finds that Yacko’s assertions satisfy his burden at this early prima facie stage.51

Yacko’s contentions that East, Conrad, and Spells were treated differently than him despite their

various disciplinary issues is sufficient to meet the “light burden” required to establish a prima facie

case of age discrimination. Pelcha, 988 F.3d at 326. While these assertions must be scrutinized under

a “more rigorous comparison … at the later stages” of the analysis, they are sufficient at this stage.

Provenzano, 663 F.3d at 814.

Accordingly, the Court concludes that Yacko has established the fourth prong of his prima

facie case of age discrimination.

2. Legitimate Non-Discriminatory Reason for Termination

Because Yacko has established a prima facie case of age discrimination, the burden shifts to

GM to articulate a legitimate, non-discriminatory reason for Yacko’s termination. Barnes v. GenCorp

Inc., 896 F.2d 1457, 1464 (6th Cir. 1990) (citing Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248,

252–53 (1981)); Fabiniak v. Wal-Mart Stores East, LP, 2023 WL 2592358, at *3 (6th Cir. Mar. 22,

2023). “Poor performance is a legitimate, non-discriminatory reason for terminating a worker’s

employment.” Rosado v. Tremco Incorporated, 2021 WL 4736982, at *5 (N.D. Ohio May 26, 2021);

see also Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001).

51 The Court bears in mind the low burden for satisfying the prima facie stage of age discrimination, as compared to

Yacko’s later burden of demonstrating that GM’s legitimate non-discriminatory reason for the adverse employment

decision is pretextual. See Pelcha, 952 F.3d at 808; Provenzano, 663 F.3d at 814.

32

The Court finds that GM has sufficiently articulated a legitimate, non-discriminatory reason

for Yacko’s termination. GM asserts that it terminated every manager in its manufacturing division

who received a teamGM minus performance rating, including Yacko, to promote its goal of

maintaining a high-performance culture. (Motion at PageID #267; Dixon Dep. at Tr. 29, 62, 78, 95;

DeWildt Dep. at Tr. 30, 32, 41, 60–61, 80–84; Gaeschke Dep. at Tr. 23, 30, 49.) As to Yacko

receiving the teamGM minus rating, GM contends that Yacko displayed numerous examples of

behavioral performance issues involving attendance, interactions with co-workers, and his reactions

to being addressed by GM leadership, that culminated into his final teamGM minus rating after being

discussed at the HRM/SubHRM Meeting. (Doc. No. 27–2 at PageID #356; Dixon Dep. at Tr. 65–72;

Dixon Dec. at ¶¶ 8–10; Jewett Dep. at Tr. 23–24, 32, 38–41, 45; Jewett Dec. at ¶¶ 2–6; Sipler Dep. at

Tr. 16–17, 34; Sipler Dec. at ¶¶ 6–13; Gaeschke Dep. at 49.)

Accordingly, GM has satisfied its burden to articulate a legitimate, non-discriminatory reason

for Yacko’s termination.

3. Rebutting Proffered Reason as Pretext

“When an employer offers nondiscriminatory reasons for an adverse employment action, the

burden shifts back to the employee to prove that the stated reason for [his] termination is pretextual.”

Blizzard, 698 F.3d at 285. Yacko contends that GM’s reasons were pretext for unlawful age

discrimination. (Opposition at PageID #1330–32.) At this stage, Yacko “has the burden to produce

‘sufficient evidence from which a jury could reasonably reject [the employer’s] explanation of why

it fired [him].’” Blizzard, 698 F.3d at 285 (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th

Cir. 2009)) (first alteration in original). Yacko “can accomplish this by proving ‘(1) that the proffered

reasons had no basis in fact, (2) that the proffered reasons did not actually motivate [his discharge],

33

or (3) that they were insufficient to motivate discharge.’” Id. (quoting Chattman v. Toho Tenax Am.,

Inc., 686 F.3d 339, 349 (6th Cir. 2012)) (emphasis and alteration in original). This “three-part test

need not be applied rigidly.” Id. As the Sixth Circuit has explained:

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.

See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d

407 (1993) (“[A] reason cannot be proved to be ‘a pretext for discrimination’ unless it

is shown both that the reason was false, and that discrimination was the real

reason.”); Forrester, 453 F.3d at 417 (“If [the proffered reason] is not the true ground,

the employer may still be innocent of discrimination; he may for example have lied to

conceal a reason that was discreditable but not discriminatory.”) (citations

omitted). At the summary judgment stage, the issue is whether the plaintiff has

produced evidence from which a jury could reasonably doubt the employer's

explanation. If so, her prima facie case is sufficient to support an inference of

discrimination at trial. Hicks, 509 U.S. at 511, 113 S. Ct. 2742. But summary

judgment is proper if, based on the evidence presented, a jury could not reasonably

doubt the employer’s explanation. See Reeves v. Sanderson Plumbing Prod., Inc., 530

U.S. 133, 148, 120 S. Ct. 2097, 147 L.Ed.2d 105 (2000) (“[A]n employer would be

entitled to judgment as a matter of law if the record conclusively revealed some other,

nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a

weak issue of fact as to whether the employer’s reason was untrue and there was

abundant and uncontroverted independent evidence that no discrimination had

occurred.”).

Chen, 580 F.3d at 400, n.4; see also Tingle v. Arbors at Hilliard, 692 F.3d 523, 530 (6th Cir.

2012).

“At the pretext stage, the plaintiff's burden of production ‘merges’ with his ultimate burden

of persuasion to show that age discrimination was the but-for cause of his termination.” Willard, 952

F.3d at 807. See also Gross v. FBL Financial Services, Inc., 557 U.S. 167, 177 (2009). Meeting this

causation requirement “is no simple task.” Pelcha, 988 F.3d at 323. It requires a plaintiff to show,

by a preponderance of the evidence, that “age was the determinative reason they were terminated;

34

that is, they must show ‘that age was the ‘reason’ that the employer decided to act.’” Id. at 323-324

(quoting Scheick v. Tecumseh Pub. Schs., 766 F.3d 523, 529 (6th Cir. 2014)). Stated differently, a

plaintiff must show that “age ‘had a determinative influence on the outcome’ of the employer’s

decision-making process.” Pelcha, 988 F.3d at 324 (quoting Gross, 557 U.S. at 176) (emphasis in

original). See also Sloat v. Hewlett-Packard, 18 F.4th 204, 209 (6th Cir. 2021).

In its Motion, GM contends that Yacko has no evidence to show that the reasons for his

termination were pretextual. (Motion at PageID #267.) GM submits that there is no evidence to

dispute that Yacko received a teamGM minus rating for his 2022 performance, and that he was

terminated like every other manager who received the same rating. (Motion at PageID #267–68.)

GM asserts that aside from being in the protected age group, Yacko has no evidence that his age

played a part in his termination. (Motion at PageID #268.) GM further contends that Yacko’s

disagreement as to his minus rating is insufficient to prove pretext. (Id.) Finally, GM asserts that

Yacko has no evidence for a jury to conclude that he was selected for termination because of his age

considering that more than thirty GM Parma managers were older than him. (Motion at PageID

#269.)

In his Opposition, Yacko sets forth numerous arguments challenging the basis for Yacko’s

teamGM minus rating. (Opposition at PageID #1325.) Specifically, Yacko contends that the lack of

consistency and clarity from GM’s leadership as to the process for Yacko receiving the minus rating,

including who assigned Yacko the minus, shows that the minus rating was a pretextual reason for

Yacko’s termination. (Opposition at PageID #1325–27, 1332.) Yacko also asserts that each of the

examples of performance issues cited by GM were not identified by any deponent as actual grounds

for Yacko’s termination or minus rating, and that many of the incidents are contradicted. (Opposition

35

at PageID #1325–26.) Yacko further highlights that Jewett noted during his deposition that he did

not agree with Yacko’s termination, which supports the conclusion that it was not justified.

(Opposition at PageID #1326.) Next, Yacko asserts that it means nothing that over thirty managers

at GM Parma are older than him because that does not assess individual local circumstances.

(Opposition at PageID #1324, 1332.) Finally, Yacko points to the difference in treatment between

himself as compared to East, Conrad, and Spells. (Opposition at PageID #1328–30.)

In its Reply, GM reiterates that there exists no evidence to show that any member of GM

leadership considered age in the decisions to terminate Yacko or replace him. (Reply at PageID

#1421.) Specifically, GM contends that no reasonable jury could find that but-for Yacko’s age, he

would not have been selected for termination. (Reply at PageID #1422.) GM further asserts that

Yacko’s theory fails because it is undisputed that the HRM/SubHRM teams who issued the 2022

performance ratings did not know that giving Yacko a teamGM minus rating would result in his

termination. (Id.) Finally, GM contends that Yacko’s disagreement with GM’s business judgment

in awarding him a teamGM minus decision cannot show pretext. (Reply at PageID #1424.)

As a preliminary matter, the Court, upon reviewing the record in-full, determines that Yacko

has failed to demonstrate a genuine issue of material fact regarding the reason for Yacko’s

termination. The testimony is consistent that Yacko was terminated because of his teamGM minus

rating which represented his poor performance in 2022, no differently than all other managers who

received a teamGM minus rating. (Dixon Dep. at Tr. 29, 62; DeWildt Dep. at Tr. 32–33, 35, 41, 84–

85; Gaeschke Dep. at Tr. 23, 30.) The record is clear that DeWildt was the final decisionmaker as to

Yacko’s termination. (DeWildt Dep. at Tr. 29; Dixon Dec. at ¶ 12; Gaeschke Dep. at Tr. 15–16.)

Further, DeWildt was not present at the HRM/SubHRM Meeting where Yacko received his minus

36

rating.52 (DeWildt Dep. at Tr. 32.) Importantly, the testimony is consistent that the attendees of the

HRM/SubHRM Meeting did not discuss termination at that meeting and did not know that the results

of their annual reviews, specifically, the teamGM minus ratings, would later serve as grounds for

performance-related terminations. (Gaeschke Dep. at Tr. 45–46; Sipler Dep. at Tr. 29; Dixon Dec. at

¶¶ 9–10; DeWildt Dep. at Tr. 32, 35, 80.) Thus, the decision to award Yacko a minus rating was

entirely separate from the decision to terminate him, undermining any assertion that the former was

merely a pretextual step in effectuating the latter.

Moreover, the Court determines that Yacko has failed to demonstrate a genuine issue of

material fact regarding the basis for Yacko’s teamGM minus rating. Yacko’s various incidents in the

first half of 2022 are well documented, which include not merely the initial incidents themselves, but

also Yacko’s adverse reactions to those incidents when GM’s management raised them with Yacko.

See supra Sections 1.B, 1.C. Then, in October 2022, Sipler took various steps to review Yacko’s

performance in preparation for the HRM/SubHRM Meeting. First, Sipler met with Jewett to discuss

Yacko’s performance. (Doc. 27-9 at PageID #657–59; Sipler Dec. at ¶ 11.) Following that

discussion, Sipler prepared a teamGM minus form53 as documentation for use during the

HRM/SubHRM Meeting and sent that form to Jewett for him to add to it as appropriate. (Doc. No.

27-9 at PageID #660–63; Sipler Dec. at ¶ 12.) Jewett, as Yacko’s direct supervisor, did not have

anything to add to the form. (Jewett Dep. at Tr. 64.) Sipler then attended the HRM/SubHRM

52 The only GM leadership member who both attended the HRM/SubHRM Meeting and was involved in Yacko’s

termination was Gaeschke. However, Gaeschke had no say in the decision to terminate Yacko—rather, he was simply

instructed by DeWildt, the final decisionmaker, to carry out the termination. (Gaeschke Dep. at Tr. 15–16, 24; DeWildt

Dep. at Tr. 49; DeWildt Dec. at ¶ 2.)

53 See supra note 20.

37

Meeting, engaged in a discussion with the other attendees, and collectively reached a consensus54

regarding Yacko’s teamGM minus rating. (Sipler Dec. at ¶ 13.) Thereafter, Sipler met again with

Jewett to discuss the teamGM minus rating, and instructed Jewett to enter the rating into Workday.55

(Sipler Dec. at ¶ 14.)

Yacko points to Sipler’s testimony that Yacko’s various behavioral incidents were not used

as the “grounds to terminate his employment,” and that Sipler did not know the grounds for Yacko’s

termination, as evidence that Yacko’s termination was unsupported. (Opposition at PageID #1322.)

However, this testimony only bolsters the previous testimony that Yacko’s termination was never

discussed at the HRM/SubHRM Meeting. Yacko was terminated because of his teamGM minus

rating, not because of any single incident that Sipler was questioned about. (Dixon Dep. at Tr. 29,

62; DeWildt Dep. at Tr. 32–33, 35, 41, 84–85; Gaeschke Dep. at Tr. 23, 30.)

The Court finds Yacko’s case to be factually similar to Pavicic v. Quaker Oats Co., 1997 WL

34735580 (E.D. Mich. Dec. 15, 1997). In Pavicic, the plaintiff was terminated as a part of a company-

wide reduction in force program intended to put the company in a better competitive position. Id. at

*1. Prior to the plaintiff’s termination, the company had implemented a performance rating system

in which employees were given an overall rating of A, B, or C. Id. at *3. The company ultimately

terminated every C rated salesperson in the country, regardless of age, sex, or race. Id. The court

rejected plaintiff’s claims of discrimination, determining that “plaintiff lost his job because he

received a C rating … Without exception, every salesperson who received a C rating was let go.” Id.

54 See supra note 24.

55 See supra note 25.

38

at *5. Here, in similar fashion, every employee who received a teamGM minus rating was terminated,

without exception. (Dixon Dep. at Tr. 29, 62; DeWildt Dep. at Tr. 32–33, 35, 41, 84–85; Gaeschke

Dep. at Tr. 23, 30.)

The Sixth Circuit has expressly rejected the notion that terminating employees based on

subjective rating criteria permits an automatic inference of discrimination. See Beck v. Buckeye

Pipeline Services Co., 501 F. App’x 447, 450 (6th Cir. 2012); Browning v. Dep’t of Army, 436 F.3d

692, 697 (6th Cir. 2006). Rather, it is the “employer’s motivation, not the applicant’s perceptions, …

that is key to the discrimination inquiry.” Browning, 436 F.3d at 697. Yacko’s termination based on

his teamGM minus rating can only support a finding of discrimination if the teamGM minus rating

was “used to disguise discriminatory action.” Beck, 501 F. App’x at 450. In other words, Yacko can

only succeed by proving that GM’s reasons for terminating him had no basis in fact, did not actually

motivate his discharge, or were insufficient to motivate discharge. Blizzard, 698 F.3d at 285.

Yacko’s voluminous references to testimony from Gaeschke, Dixon, DeWildt, Jewett, and

Sipler fail to satisfy this burden.

Yacko first takes issue with Gaeschke’s testimony. Yacko cites to Gaeschke’s deposition

testimony that he “never criticized Yacko’s performance” as an attempt to show that Gaeschke had

no basis for firing Yacko. (Opposition at PageID #1315; Gaeschke Dep. at Tr. 22.) Yet, immediately

afterwards, when Gaeschke was asked whether that meant he “[knew] nothing about [Yacko’s]

behavioral performance issues,” Gaeschke instantly replied, “No, that is not true. It was shared with

me that he had performance issues in 2022 … His performance was reviewed in our HRM meeting.”

(Gaeschke Dep. at Tr. 23.) Next, Yacko asserts that Gaeschke did “not know what person gave the

order” to fire Yacko. (Opposition at PageID #1315; Gaeschke Dep. at Tr. 15.) However, Gaeschke

39

testified that he received the direction to terminate Yacko from “Headquarters, HR team,” as he was

given the direction to terminate 2022 low performers on a conference call that he was instructed to

attend by DeWildt—which is consistent with the DeWildt’s testimony. (Gaeschke Dep. at Tr. 15–

16; DeWildt Dep. at Tr. 39.) Yacko further asserts that when Gaeschke was asked whether he “had

any evidence that the excuse offered by GM for firing Yacko is accurate,” Gaeschke answered, “I

don’t know how to answer that question.” (Gaeschke Dep. at Tr. 25–26.) Yet Gaeschke had just

testified that Yacko’s behavioral performance issues had been shared with him at the HRM meeting.

(Gaeschke Dep. at Tr. 23.) The mere fact that Gaeschke did not explicitly ask Yacko’s superiors—

many of whom had interacted with Yacko directly—how they knew their information about Yacko

was accurate does not create any genuine issue of fact. (Gaeschke Dep. at Tr. 25.) Finally, Yacko’s

reference to Gaeschke’s testimony that he terminated Yacko over his “most recent performance

review” but had not read the review himself is without context. (Opposition at PageID #1315;

Gaeschke Dep. at Tr. 20–21.) While Gaeschke did not read the physical review himself, he had

knowledge of the same details regarding Yacko’s 2022 performance that were contained in the review

because those details were shared with him during the HRM/SubHRM Meeting. (Opposition at

PageID #1316; Gaeschke Dep. at Tr. 23, 25.)

Yacko then unsuccessfully challenges Dixon’s testimony. Yacko asserts that Dixon, in her

deposition testimony, admitted that Yacko was fired for “poor performance” despite being qualified

for employment. (Opposition at PageID #1316–17.) A review of the record reveals that Dixon was

asked whether Yacko was “over 40, … qualified, and he was fired.” (Dixon Dep. at Tr. 18.) In

response, Dixon specifically answered that “if you mean by qualifications, his experience, he was

qualified, yes, he was over 40 and his employment was terminated due to poor performance.” (Dixon

40

Dep. at Tr. 19.) Dixon’s testimony thus reflects that Yacko was qualified in the sense that he had

relevant past experience, and not that he was qualified to keep his position notwithstanding his recent

poor performance. Next, Yacko asserts that Dixon agreed that the alleged attendance issue was not

grounds for termination. (Opposition at PageID #1317.) Yacko’s assertion mischaracterizes the

record. In her deposition, Dixon was asked a hypothetical question: “If my client had only called off

or late or anything like that, one time, would that be grounds for termination of his employment.”

(Dixon Dep. at Tr. 40.) Dixon responded, “I can’t answer that hypothetical. But to a reasonable

person, I would say no.” (Id.) Dixon thus never agreed that Yacko’s alleged attendance issues—

which included multiple call-off dates that were documented and later addressed in a meeting with

Jewett and Sipler—were not grounds for termination. (Doc. No. 27-2 at PageID #361.) Yacko further

asserts that Dixon was asked to identify communication problems with Jewett and could not provide

specific examples. (Opposition at PageID #1317.) Yacko’s assertion again mischaracterizes the

record. Dixon was asked about the problems that Sipler identified Yacko as having, to which she

responded that Yacko had communication problems with his direct leader. (Dixon Dep. at Tr. 41–

42.) When asked for a specific event involving Jewett, Dixon responded that Sipler himself did not

give her specifics, but that examples were documented in Yacko’s performance evaluation. (Id.)

Then, when asked again about what examples Sipler gave, Dixon again responded that although Sipler

did not give specific examples, Jewett did provide her examples such as not keeping him updated

with respect to maintenance issues. (Id.) Finally, Yacko asserts that Dixon did not meet with Jewett

to discuss Yacko’s 2022 review until a week prior to her deposition. (Opposition at PageID #1317–

18.) However, Yacko’s 2022 performance was discussed at the HRM/SubHRM Meeting by Sipler,

who had met with Jewett in-advance to discuss Yacko’s performance in preparation for the meeting.

41

(Doc. No. 27-9 at PageID #657.) Notably, Dixon expressly acknowledges that as Jewett’s supervisor,

Sipler may have conversed with Jewett regarding Yacko’s performance. (Dixon Dep. at Tr. 48.)

Yacko then moves on to DeWildt’s testimony. Yacko first asserts that DeWildt indicated that

she made the final decision to terminate Yacko but was not the original decisionmaker on the issue.

(Opposition at PageID #1319.) In her deposition, DeWildt clarified that she made the decision to

terminate Yacko based on his rating of minus, but that she was not involved in assigning Yacko the

minus as that decision came from the HRM committee at GM Parma. (DeWildt Dep. at Tr. 32.) Next,

Yacko asserts that DeWildt testified that she “did not know Yacko existed as a ‘human being’ until

February 2023.” (Opposition at PageID #1319.) Yacko’s assertion mischaracterizes the record. In

her deposition, DeWildt was asked, multiple times in a row, when it came to her attention that Yacko

was not meeting expectations. (DeWildt Dep. at Tr. 82–83.) Not satisfied with her responses, counsel

asked DeWildt again: “The question is, when did it come to your attention, that Yacko, as a human

being existed, that ought to be terminated.” (DeWildt Dep. at Tr. 83) (emphasis added). DeWildt

responded, “February 2023.” (Id.) Looking at the context of the deposition testimony, DeWildt’s

response is clearly responding to counsel’s question as to when it came to her attention that Yacko

“ought to be terminated,” not when she learned he existed. (Id.) Yacko further asserts that DeWildt

could not explain what questions are asked by managers to calibrate what rating an employee receives.

(Opposition at PageID #1320.) Yacko’s assertion again mischaracterizes the record. In her

deposition, DeWildt was asked whether there were questions that employees must answer to

determine their plus, minus, or par rating. (DeWildt Dep. at Tr. 105–106.) DeWildt responded that

there were not specific questions, but that it was all part of the calibration discussions, which she then

explained involved discussions with managers regarding an employee’s performance to goals,

42

relativity, performance to peers, and any specific circumstances to that employee. (Id.) Finally,

Yacko asserts that DeWildt admitted there was “not one place where the review indicated that the

Plaintiff ‘did not meet’ expectations.” (Opposition at PAgeID #1321.) Yet, DeWildt explicitly

testified that Exhibit 1-25 “has multiple examples where he did not meet expectations within 2022

year in the manager evaluation section,” referencing comments about Yacko’s attitude, difficulty

accepting criticism and dealing with upper management, and approachability. (DeWildt Dep. at Tr.

124.)

Finally, Yacko turns to Sipler’s testimony. Yacko first points to Sipler’s testimony that he

never talked to anybody about whether Yacko should be terminated from his GM employment.

(Opposition at PageID #1321; Sipler Dep. at Tr. 10–11.) This testimony is consistent with all other

witnesses who testified that termination was never discussed at the HRM/SubHRM Meeting and that

they were unaware that the teamGM minus rating would later serve as grounds for terminating

employees. (Sipler Dep. at Tr. 10–11.) Further, this statement is consistent with Sipler’s later

testimony, in which he testified that he did not learn of Yacko’s termination until after it had

happened. (Sipler Dep. at Tr. 61.) Next, Yacko asserts that Sipler’s declaration regarding a thoughtful

discussion as to Yacko’s performance is contradicted by Dixon’s testimony regarding the length of

time that each employee was discussed. (Opposition at PageID #1322; Sipler Dec. at ¶ 10–13.) As

explained above,56 this Court rejects the assertion that Yacko was only discussed for one minute at

the HRM/SubHRM Meeting. Finally, Yacko asserts that Sipler had no evidence that Yacko ever

withheld information from Jewett. (Opposition at PageID #1322.) Yacko’s assertion

56 See supra note 22.

43

mischaracterizes the record. Sipler testified in his deposition that Jewett had reported to him, multiple

times over several months, that Yacko would not keep him informed when there were breakdowns

occurring in the plant. (Sipler Dep. at Tr. 38.) The fact that Sipler could not break down the specifics

of any one instance due to not having been on third shift himself does not mean that Sipler had “no

evidence”—Sipler was permitted to rely upon the representations made to him by Yacko’s direct

supervisor. (Sipler Dep. at Tr. 38–39.)

Ultimately, Yacko’s disagreement as to the justification of his teamGM minus designation

does not salvage his claim.57 See Meyrose v. Vitas Hospice Services, LLC, 2022 WL 3046969, at *2

(6th Cir. Aug. 2, 2022) (“Mainly, he repeatedly notes that he disputed the evaluations in writing when

he received them. But his beliefs about his performance do not create a genuine issue of material fact

either, no matter how strong.”); Brown v. Kelsey-Hayes Co., 814 F. App’x 72, 81 (6th Cir. 2020)

(“But disagreeing with an employer’s assessment of performance does not render the employer’s

reasons pretextual.”) (internal quotation marks omitted). Although Yacko asserts that courts should

not “blindly accept the employer’s proffered reason for adverse action taken” as honest,58 the Court

57 Yacko also contends that Jewett testified that he personally did not agree with a minus. (Jewett Dep. at Tr. 64.) But,

as previously discussed, Jewett was not a decision-maker in Yacko’s case. Moreover, the record evidence as to Yacko’s

various incidents does not support a finding that the HRM/SubHRM Meeting attendees’ consensus to award Yacko a

teamGM minus designation had no basis in fact, did not actually motivate his discharge, or were insufficient to motivate

discharge. Blizzard, 698 F.3d at 285.

58 Citing Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir. 1996), Yacko asserts that Sipler and Dixon

blamed the minus rating on Jewett, who disagreed with the minus, which thus constitutes a “change” in rationale for

making an adverse employment decision that can be evidence of pretext. Opposition at PageID #1331. First, Jewett was

never a decision-maker in Yacko’s case. Second, the record reflects that Yacko received his minus from the

HRM/SubHRM Meeting, and that Jewett simply input the minus into the Workday system after the decision had already

been made. See supra note 25.

44

finds that the decision59 to award Yacko a teamGM minus rating is adequately supported by the record

such as to survive a pretextual challenge.60 (Opposition at PageID #1332).

Further, Yacko’s assertion that East, Conrad, and Spells were treated differently fails to show

pretext. Neither East, Conrad, nor Spells received a teamGM minus rating that warranted their

termination. Even if they had received teamGM minus ratings, that would not have prevented Yacko

from being terminated. See Pavicic, 1997 WL 34735580, at *5 (“Even if the three who replaced

plaintiff had been ranked lower than him, plaintiff still would have been terminated. Without

exception, every salesperson who received a C rating was let go.”). As to Yacko’s point that East,

Conrad, and Spells were similarly situated employees who were treated differently, the Court finds

that Yacko’s performance was distinguishable.61

59 Citing Coburn v. Rockwell Automation, Inc., 238 F. App’x 112, 122 (6th Cir. 2007), Yacko asserts that GM witnesses

failed to name the actual decisionmaker regarding the decision to terminate Yacko, and that their failure to do so casts a

“shadow of doubt” over GM’s explanation for terminating Yacko. (Opposition at PageID #1331) (“[A] reasonable jury

could infer that if employer cannot even give a straight answer about who recommended plaintiff for termination it is

trying to hide something.”) (alterations omitted). However, there is no dispute that the actual final decisionmaker to

terminate Yacko was DeWildt. (DeWildt Dep. at Tr. 45; Dixon Dep. at Tr. 61–62; Gaeschke Dep. at Tr. 15–16.) Rather,

Yacko’s assertion regarding GM’s “failure to name the actual decisionmaker” refers to the decision to award Yacko a

teamGM minus rating, not the decision to terminate him. Because the decisionmaker as to Yacko’s termination is not

disputed, Coburn is inapplicable. Further, the Court finds that the record sufficiently supports the conclusion that Yacko

received the teamGM minus rating from a consensus of the HRM/SubHRM teams, following discussion led by Sipler.

And the record is consistent that the HRM/SubHRM team members were not aware that Yacko would be terminated at

the time that Yacko received his teamGM minus rating.

60 Yacko references the CNN articles as proof that GM was “seeking to eliminate employees in a reduction-in-force

through attrition meant to save the company $2 billion.” (Opposition at PageID #1315.) However, while perhaps relevant

to establishing Yacko’s prima facie case, the fact that GM was seeking to save costs within its company is irrelevant if

GM is able to articulate a legitimate non-discriminatory reason for Yacko’s termination, and Yacko is unable to show that

the reason is pretextual. Accordingly, Yacko’s bears the burden of showing that but-for his age, he would not have been

terminated. Pelcha, 988 F.3d at 323–24. Yacko has failed to make this showing.

61 When discussing Yacko’s attendance issues, Sipler testified that it was not merely the attendance issues themselves that

were problematic—rather, it was Yacko’s “behavior during the meeting where we were discussing his absences, in an

informal meeting, to help him understand that he was not behaving in a proper manner” with which Sipler and Jewett had

issues. (Sipler Dep. at Tr. 36; Jewett Dep. at Tr. 23, 32.) Setting aside the lack of context surrounding the evidence

regarding East, Conrad, or Spells’ performance issues, if any, there is no evidence that any of them exhibited these sorts

of disrespectful behaviors towards GM management after being informed that they had erred in some respect to the same

degree or on as many occasions as Yacko. (Doc. No. 33-3 at PageID #1357–64; Doc. No. 33-4 at PageID #1365–73;

45

Simply put, Yacko is unable to show that but-for his age, he would not have been terminated.62

Willard, 952 F.3d at 807. Yacko’s membership in the protected group cannot, alone, support his

claim. See Downs v. Bel Brands USA, Inc., 613 F. App’x 515, 519 (6th Cir. 2015); Sam Han v. Univ.

of Dayton, 541 F. App’x 622, 626–27 (6th Cir. 2013).

Accordingly, the Court GRANTS GM’s Motion for Summary Judgment on Yacko’s claim

for age discrimination under Section 4112.02 (Count One).

B. Breach of Contract (Count Two)

In Count Two, Yacko alleges that GM prevented him from “having access to the employment

benefit of a termination wage buy-out,” i.e., the VSP, and that GM’s conduct therefore breached an

employment contract that entitled Yacko to participate in company benefits. (Doc. No. 1-1 at ¶ 34.)

In its Motion, GM asserts that the VSP was not a contract for benefits, but rather an invitation

to apply for benefits. (Doc. No. 27-1 at PageID #270.) GM contends that it reserved the right to

approve or reject an application to the VSP based on the needs of the business. (Id.) Thus, GM

asserts that it was not until an employee offered to leave under the VSP, and GM accepted that offer,

Doc. No. 33-2 at PageID # 1346–56; Doc. No. 34-1 at PageID #1404–13.) Further, Yacko asserts that other employees

were given the chance for improvement plans prior to receiving formal discipline. (Opposition at PageID #1329.) Yet,

by Yacko’s own admission, most of his initial meetings were not filed as “formal disciplines” and thus were opportunities

for Yacko to improve prior to formal disciplinary action—in the same way that a PIP allows an employee to do. (Doc.

No. 27-8 at PageID #640; Sipler Dep. at Tr. 34, 36–37.) However, rather than seek the opportunity for improvement from

these informal meetings, Sipler and Jewett testified that Yacko became “angry,” “belligerent,” “turned away from me,”

“yelled at me,” “told us he was going to do … whatever the fuck he wanted to do,” etc. (Sipler Dep. at Tr. 34; Jewett

Dep at Tr. 32.) Finally, these arguments by Yacko merely constitute disagreement as to his employer’s assessment of

performance, which “does not render the employer’s reasons pretextual.” Brown, 814 F. App’x at 81.

62 The record reflects that the relevant GM witnesses did not consider age during any decision-making as to both Yacko’s

termination and Yacko receiving a teamGM minus rating. (DeWildt Dec. at ¶ 2; Sipler Dec. at ¶ 13; Gaeschke Dep. at

Tr. 36; Dixon Dec. at ¶ 10; Yacko Dep. at Tr. 134.) Nor does Yacko point to any comments made by GM decision-

makers in the workplace referencing his age that could suggest an adverse employment action on that basis. Cf. Willard,

952 F.3d at 813 (referencing workplace comments that plaintiff was “over-the-hill,” “old and fat,” and “too old to sit at a

front desk and a younger salesperson should sit there”). Finally, Yacko’s “but-for” claim is undermined by the more than

thirty GM Parma managers being older than him yet not receiving a teamGM minus rating. (Motion at PageID #269.)

46

that a binding agreement would be formed. (Id.) In support of its argument, GM notes that no

maintenance group leader in GM Parma left the business under the VSP, and that GM denied the

application of the only person with that title because his skills as a maintenance supervisor were

necessary to the operations of the plant. (Id.) Separately, GM also argues that Yacko’s breach of

contract claim fails because GM and Yacko were not parties to a contract, and that Yacko, as an at-

will employee, has failed to identify any contract that it allegedly breached. (Doc. No. 27-1 at PageID

#269.)

In his Opposition, Yacko asserts that the VSP constituted a “fringe benefit” as defined by

O.R.C. § 4113.15(D)(2), and that fringe benefits are components of an employment relationship and

at-will contract even if they have not been used. (Opposition at PageID #1333.) Responding to GM’s

claim that the VSP was only an “invitation” to apply for benefits, Yacko contends that the VSP formed

a unilateral contract which invited acceptance by performance rather than by a promise to perform.

(Id.) Yacko points to Dixon’s testimony characterizing the VSP as a “benefit that was part of the

Workforce Reduction Program,” and reiterates that the VSP was a fringe benefit created in January

2023, while Yacko was still employed, that attached to his at-will relationship with GM. (Opposition

at PageID #1333–34.) Thus, Yacko asserts that the VSP benefit was “there to take,” and that GM

prevented Yacko from taking the benefit in breach of his at-will contract right to act on withheld

fringe benefits. (Opposition at PageID #1334.)

In its Reply, GM disputes the notion that the VSP was a unilateral contract that invited

acceptance by performance. (Reply at PageID #1427.) GM concedes that some offers of severance

can create a unilateral contract, such as where an offer of severance pay triggers a unilateral contract

where acceptance occurs by the employee remaining employed after learning of the new severance

47

policy. (Id.) However, GM asserts that the VSP was not a unilateral contract because employees

were required to apply for benefits under the plan and would only receive benefits if GM approved

their application in exchange for their voluntary resignation from the company. (Id.) Finally, GM

reiterates that Yacko was no longer an employee when the offer was made.

“Under Ohio law, the elements of a breach of contract claim are: (1) the existence of a contract;

(2) performance by the plaintiff; (3) breach by the defendant; and (4) damage or loss to the plaintiff

as a result of the breach.” Asset Mgmt. One LLC v. U.S. Bank Nat’l Ass’n, 569 F. App’x 438, 441 (6th

Cir. 2014) (quoting V&M Star Steel v. Centimark Corp., 678 F.3d 459, 465 (6th Cir. 2012)).

A unilateral contract “typically involves an offer made by a party which invites acceptance by

performance rather than by a reciprocal promise to perform.” Mulvey v. GuideOne Mutual Ins. Co.,

2017-Ohio-7902, 98 N.E.3d 926, ¶ 13 (10th Dist.) (citing Bell v. Dimmerling, 149 Ohio St. 165, 171,

78 N.E.2d 49 (1948)). “When a company posts or otherwise disseminates to employees a written,

formal employment policy, a unilateral contract may result.” Mulvey, 2017-Ohio-7902, at ¶ 13.

Severance pay may be one permissible term of a unilateral contract. Id. at ¶ 14. But a unilateral

contract “does not come into existence until one party to it has done all that is necessary on his part[,

as] it is performance by one party which makes obligatory the promise of the other.” Bell, 149 Ohio

St. at 171 (citing 9 Ohio Jurisprudence 239, Section 5).

Where a voluntary separation plan requires filing an application that an employer has

discretion to approve or deny, no unilateral contract is formed. See Lynch v. EG & G Mound Applied

Technologies, Inc., 1999 WL 34790, at *5 (2d. Dist. Jan. 29, 1999). In Lynch, a plaintiff’s employer

offered a VSP that required employees to file an application if they wanted to partake in the plan. Id.

at *1. Specifically, interested employees would apply for the VSP, and management would review

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the applications while considering the applicant’s current position regarding “mission and

objectives,” “knowledge, skills, and abilities,” “job performance,” and other factors. Id. at *1–2.

After reviewing each application on a case-by-case basis, management would either approve or deny

the VSP application. Id.

The court determined that such a plan did not constitute a “unilateral contract offer” because

participation in the VSP was not guaranteed simply upon submission of an application. Id. at *5.

Because management had the right to determine who would be permitted to participate in the

program, no contract could be formed unless management affirmatively approved the application. Id.

This was true even where the employee’s manager represented to him that he “couldn’t imagine

anybody being denied.” Id. Although the manager predicted that the application was likely to be

approved, his words, “[a]s a matter of law, … did not convey a unilateral contract offer of guaranteed

acceptance into the VSP[] upon application.” Id. Accordingly, summary judgment was appropriate

for the employer as to the employee’s breach of contract claim. Id.

Here, the Court reaches the same conclusion as Lynch. Just as in Lynch, GM reviewed VSP

applications and either approved or denied them. (Dixon Dec. at ¶ 19). Out of the fourteen VSP

applications submitted at GM Parma, GM approved thirteen and denied one—East. (Dixon Dec. at ¶

20; Doc. No. 27-6 at PageID #571–77.) Notably, East was the only employee with the position

“Group Leader – Maintenance” out of the fourteen applications, and his application was denied

because GM deemed him “essential to the operation” of GM Parma. (Id.) Thus, there was no

guarantee that Yacko, who held the same position as East, would have had his application approved.

And even if Yacko was almost certain to have been approved, there would still be no unilateral

contract because GM still had the final say in approval. Therefore, because no unilateral contract was

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offered for Yacko to have accepted by performance, there was no benefit that Yacko was entitled to

that GM prevented him from taking.63

Yacko cites two cases in support of his claim for breach of contract as to the VSP—Helle v.

Landmark, Inc., 15 Ohio App.3d 1, 472 N.E.2d 765 (Ohio App. 6th Dis. 1984), and Harwood v.

Avaya Corp., 2007 WL 1574116 (S.D. Ohio May 25, 2007). The Court finds Helle and Harwood to

be distinguishable. In Harwood, the employees received a retention bonus program (“RPB”) offer in

which they were to receive a retention bonus in exchange for remaining an employee of the company

until a certain date. 2007 WL 1574116, at *1. Thus, the offer explicitly invited acceptance by

performance, and thereby created a unilateral offer. Similarly, in Helle, the company put in place a

severance policy that employees could choose to partake in, which contained a reservation clause that

the company reserves the right to change or rescind the severance policy at any time. 472 N.E.2d at

769–70. The plaintiff contacted the company manager to “verify” the severance policy, to which the

manager responded, “You’ll have it. [You] should have [been] given [] the paper on it [the severance

policy] (sic) already.” Id. at 770. Thereafter, the plaintiff brought suit for breach of an oral contract.

Id. at 768. The court explicitly acknowledged the company’s argument surrounding the reservation

clause as “legitimately within the realm of the employer’s bargaining power,” however, concluded

that the oral assurances of severance pay from the manager “negate[d] the effect of disclaimers which

are intended to absolve the employer from liability for unilateral alterations of or deviations from

policies.” Id. at 774–75. Thus, the Court finds that both programs created unilateral contracts, with

63 Yacko cites to Dixon’s deposition testimony in which she characterized the VSP as a “benefit that was part of the

Workforce Reduction Program.” (Dixon Dep. at Tr. 32.) However, as seen in Lynch, Dixon’s mere characterization of

the VSP cannot, “[a]s a matter of law, … convey a unilateral contract offer” because her characterization did not create a

“guaranteed acceptance into the VSP[] upon application.” 1999 WL 34790, at *5.

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Harwood inviting acceptance by performance and Helle guaranteeing the severance pay pursuant to

oral assurances from the manager, whereas GM’s VSP did not because it was never guaranteed that

GM would accept Yacko’s application. Therefore, Helle and Harwood are inapplicable.

Accordingly, the Court GRANTS GM’s Motion for Summary Judgment as to Yacko’s breach

of contract claim (Count Two).64 (Doc. No. 27.)

C. Defamation (Count Three)

In Count Three, Yacko asserts that Gaeschke defamed him by “creating a false excuse for

terminat[ing] Yacko’s employment which he published to GM management [sic] for his own

malicious purpose.” (Doc. No. 1-1 at ¶ 35.) According to Yacko, Gaeschke’s publishing to GM

management that Yacko was fired for “behavior performance reasons” despite Yacko being a “loyal,

subordinate professional employee . . . amounts to libel and slander.” (Id. at ¶¶ 8, 35.)

In his Motion, Gaeschke asserts that there is no evidence from which to conclude that

Gaeschke made defamatory statements about Yacko. (Motion at PageID #271.) Further, Gaeschke

contends that even if he could be found to have made a defamatory statement about Yacko, such

statement would be protected by a qualified privilege. (Id.) Specifically, Gaeschke asserts that an

act of alleged defamation is protected by qualified privilege if it occurs in a business or professional

context by someone whose job gives them a legitimate interest in the matter. (Id.) Gaeschke submits

that this includes a communication made in good faith between two employees concerning a third

employee. (Id.) Finally, Gaeschke notes that such privilege can only be defeated if Yacko proves

actual malice, which he cannot do. (Id.)

64 Because the Court finds that GM is entitled to summary judgment on Yacko’s breach of contract claim based on Yacko

not being guaranteed acceptance into the VSP, the Court need not address the Parties’ remaining arguments on this claim.

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In his Opposition, Yacko asserts that Gaeschke said Yacko was terminated for unexplained

“behavioral performance” issues, which created “inuendo per se that he had mental health problems.”

(Opposition at PageID #1335.) Yacko points out that Gaeschke was the author of the information

because the words “behavioral performance issues” do not appear in the GM termination script. (Id.)

Yacko further asserts that according to Sipler’s declaration, Yacko’s “behavioral issues” were

discussed at the HRM/SubHRM Meeting in front of at least a dozen GM employees. (Id.) Thus,

Yacko contends that Gaeschke ruined his reputation because the HRM/SubHRM team acted on

Gaeschke’s defamatory “behavioral issues” statement to give Yacko his minus rating. (Id.) Finally,

Yacko contends that Gaeschke’s employer privilege defense rings hollow given GM’s “refusal to

cooperate in discovery and provide detailed information about who said what” in the HRM/SubHRM

Meeting.

In his Reply, Gaeschke asserts that Yacko has no evidence that Gaeschke made a defamatory

statement about him at the HRM/SubHRM Meeting. (Reply at PageID #1429.) Gaeschke notes that

Yacko deposed three GM managers who attended the HRM/SubHRM Meeting, and not one of them

testified that Gaeschke made any statements or words to that effect. (Id.) Rather, Gaeschke submits

that it is undisputed that he made no statements about Yacko’s performance at the HRM/SubHRM

Meeting. (Id.) Gaeschke asserts that Yacko’s claim is speculative at best, which is insufficient to

survive summary dismissal. (Id.) Further, Gaeschke disputes the characterization that the phrase

“behavioral performance issues … is code for ‘mental health problems.’” (Id.) Finally, Gaeschke

contends that even if Yacko had evidence that Gaeschke told other GM employees that Yacko had

“behavioral performance issues,” such a statement is protected by qualified privilege. (Reply at

PageID #1429–30.)

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In Ohio, defamation occurs “when a publication contains a false statement ‘made with some

degree of fault, reflecting injuriously on a person’s reputation, or exposing a person to public hatred,

contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or

profession.’” Am. Chem. Soc. v. Leadscope, Inc., 978 N.E.2d 832, 852 (Ohio 2012) (quoting Jackson

v. City of Columbus, 883 N.E.2d 1060, 1064 (Ohio 2008)). Generally, to establish a prima facie claim

for defamation, a plaintiff “must show (1) that a false statement of fact was made, (2) that the

statement was defamatory, (3) that the statement was published, (4) that the plaintiff suffered injury

as a proximate result of the publication, and (5) that the defendant acted with the requisite degree of

fault in publishing the statement.” Pincus v. Pincus, 127 N.E.3d 393, 397 (Ohio App. 8th Dist. 2018)

(citing Am. Chem. Soc., 978 N.E.2d 832) (quotation marks omitted).65

The Court will address the disputed elements, in turn, below.

1. False Statement

Turning to the first element of Yacko’s prima facie defamation claim, as mentioned, Gaeschke

contends that there is no evidence from which a jury could conclude that Gaeschke made defamatory

statements to anyone about Yacko. (Motion at PageID #271.) In his Opposition, Yacko identifies

the defamatory statement as Gaeschke’s statement to GM’s management that Yacko was terminated

for “behavioral performance issues,” which he asserts created an inuendo per se that he had mental

65 Defamation can take the form of either slander or libel. Tharp v. Hillcrest Baptist Ch. of Columbus, 204 N.E.3d 709,

723 (Ohio App. 10th Dist. 2022) (citation omitted). “Slander” refers to “spoken defamatory words,” while “libel” refers

to “written or printed defamatory words.” Id. (citing Savoy v. Univ. of Akron, 15 N.E.3d 430 (Ohio App. 10th Dist. 2014))

(quotation marks omitted); Burns v. Rice, 813 N.E.2d 25, 32 (Ohio App. 10th Dist. 2004). The prima facie elements are

identical between the two forms of defamation. Tharp, 204 N.E.3d at 723; Mitchell v. Fujitec Am., Inc., 518 F. Supp. 3d

1073, 1090 (S.D. Ohio 2021) (citing Fisher, 153 N.E.3d at 624). In this case, Yacko asserts both. (Doc. No. 1-1 at ¶ 35.)

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health problems. (Opposition at PageID #1335.) Gaeschke reiterates in his Reply that Yacko has no

evidence that Gaeschke made a defamatory statement about him. (Reply at PageID #1429.)

Neither party provides or cites to any authority as to what constitutes a “false” statement under

Ohio law. In a defamation action, a plaintiff must allege a false statement, an essential element of a

prima facie claim. See Hartman v. Kerch, 217 N.E.3d 881, 896 (Ohio App. 8th Dist. 2023). A “false

statement” is one that “sets forth matters which are not true,” or “[s]tatements without grounds in

truth or fact.” Serv. Emp. Int’l Union Dist. 1199 v. Ohio Elections Comm., 822 N.E.2d 424, 430

(Ohio App. 8th Dist. 2004) (citation omitted) (alteration in original); Labban v. Mahon, 2021 WL

6777029, at *2 (6th Cir. Sept. 23, 2021) (citing Susan B. Anthony List v. Driehaus, 779 F.3d 628, 632

(6th Cir. 2015)). A statement, therefore, is not a “false statement” if, “even though it is misleading

and fails to disclose all relevant facts, the statement has some truth in it.” Horenstein, Nicholson &

Blumenthal, L.P.A. v. Hilgeman, 178 N.E.3d 71, 106 (Ohio App. 2d Dist. 2021).

The Court concludes that Yacko has failed to prove that Gaeschke’s statement to GM’s

management that Yacko was terminated for “behavioral performance issues” was false. First, the

Court disagrees with the notion that the phrase “behavioral performance issues” creates an inuendo

per se that Yacko had mental health problems. The record reflects that Yacko was not terminated for

a lack of his technical-skills knowledge of GM’s plant—rather, Yacko was terminated because he

received a teamGM minus rating. (Dixon Dep. at Tr. 29, 62; DeWildt Dep. at Tr. 32–33, 35, 41, 84–

85; Gaeschke Dep. at Tr. 23, 30.) Further, as explained above, the basis for Yacko’s teamGM minus

rating came as a result of numerous documented incidents involving Yacko’s interactions with his

co-workers and managers. See supra Sections 1.B, 1.C. Even if Yacko could reasonably dispute his

teamGM minus rating, no reasonable jury could find the assertion that Yacko’s termination was

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related to his behavior to be “without grounds in truth or fact.” Serv. Emp. Int’l Union Dist. 1199,

822 N.E.2d at 430. The statement that Yacko’s termination was related to issues with his behavior at

GM “has some truth to it,” even if Yacko could show that “it is misleading and fails to disclose all

relevant facts.” Horenstein, Nicholson & Blumenthal, L.P.A., 178 N.E.3d at 71.

Accordingly, the Court finds that Yacko has failed to show that Gaeschke’s statement to GM

concerning the reasons for Yacko’s termination was false, and Gaeschke’s Motion must be granted

on this basis.

2. Qualified Privilege66

The Court has concluded that Yacko has failed to establish a prima facie case of

discrimination. Nevertheless, even assuming arguendo that Yacko were able to prove that Gaeschke

made a defamatory false statement about him, that statement would still be protected by qualified

privilege.

One of the defenses to a prima facie case of defamation is privilege. Hahn v. Kotten, 331

N.E.2d 713, 718 (Ohio 1975); see also Jackson v. City of Columbus, 883 N.E.2d 1060, 1064 (Ohio

2008). A privileged communication is one which, “except for the occasion on which or the

circumstances under which it is made, would be defamatory, and actionable.” Costanzo v. Gaul, 403

N.E.2d 979, 981 (Ohio 1980). Privileged publications are divided into two general classes: “those

66 Even if the Court determined that Gaeschke did make a defamatory false statement about Yacko, that statement would

be protected under qualified privilege. Regarding the above discussion on this point, the Court only evaluates the

statement made in front of Dixon while Yacko was being terminated. With respect to the publication element, while

Yacko has put forth evidence that Gaeschke used the words “behavioral performance issues” while notifying him of his

termination before Dixon, Yacko has pointed to no evidence that Gaeschke uttered these words, or anything akin, at the

HRM/SubHRM Meeting. In fact, all three GM managers who attended that meeting and were deposed asserted that

Gaeschke never spoke negatively about Yacko. (Dixon Dec. at ¶ 21; Sipler Dec. at ¶ 16; DeWildt Dec. at ¶ 5; Gaeschke

Dep. at Tr. 22–23, 42, 45.)

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which are absolutely privileged, and those which are qualifiedly or conditionally privileged.” Id. An

absolute privilege affords “complete protection,” whereas “a qualified or conditional privilege affords

protection only in the absence of ill motive or malice in fact.” Id.

A publication is qualifiedly privileged when it is “fairly made by a person in the discharge of

some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters

where his interest is concerned.” Hahn, 331 N.E.2d at 718. Such a privilege “is recognized in many

cases where the publisher and the recipient have a common interest, and the communication is of a

kind reasonably calculated to protect or further it.” Id. Thus, under Ohio law, “[e]ven a false

statement may be protected by a qualified privilege.” Blesedell v. Chillicothe Telephone Co., 811

F.3d 211, 224 (6th Cir. 2016) (citing City of Columbus, 883 N.E.2d at 1064).

When a qualified privilege is asserted, courts must first determine whether the privilege indeed

exists. Fisher v. Ahmed, 153 N.E.3d 612, 626 (Ohio App. 9th Dist. 2020) (citing A & B-Abell Elevator

Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 651 N.E.2d 1283 (Ohio 1995)). The

essential elements of a qualified privilege are “good faith, an interest to be upheld, a statement limited

in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper

parties only.” Hahn, 331 N.E.2d at 719; see also Buckner v. Gilliland, 846 F. Supp. 2d 799, 804

(N.D. Ohio 2012) (citing McNett v. Worthington, 2011 WL 4790759, at *3 (Ohio App. 3d Dist. Oct.

11, 2011)). In the employment context, generally, “a communication made in good faith on a matter

of common interest between an employer and an employee, or between two employees concerning a

third employee, is protected by qualified privilege.” Sygula v. Regency Hosp. of Cleveland E., 64

N.E.3d 458, 467 (Ohio App. 8th Dist. 2016) (citation omitted). See also Evely v. Carlon Co., Div. of

Indian Head, Inc., 447 N.E.2d 1290, 1292 (Ohio 1983).

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If a qualified privilege exists, the privilege can be lost if the communication is not “made in a

reasonable manner and for a proper purpose,” or is made to “someone outside of the qualified

privilege.” Bisbee v. Cuyahoga Cnty. Bd. of Elections, 2001 WL 204174, at *5 (Ohio App. 8th Dist.

Mar. 1, 2001); Stearns v. Ohio Sav. Ass’n, 472 N.E.2d 372, 374 (Ohio App. 8th Dist. 1984); Burrows

v. Fuyao Glass Am. Inc., 2017 WL 626189, at *8 (S.D. Ohio Dec. 8, 2017). The privilege can also

be lost when a plaintiff alleges actual malice. Costanzo, 403 N.E.2d at 983.

“Actual malice” is present when a statement is made “with the knowledge that the statements

are false or with reckless disregard of whether they were false or not.” Id. See also Smith v. Klein,

492 N.E.2d 852, 856–57 (Ohio App. 8th Dist. 1985); Jacobs v. Frank, 573 N.E.2d 609, 614 (Ohio

1991). “Reckless disregard” applies when “a publisher of defamatory statements acts with a ‘high

degree of awareness of their probable falsity,’ or when the publisher ‘in fact entertained serious doubts

as to the truth of his publication.” City of Columbus, 883 N.E.2d at 1064 (quoting Garrison v.

Louisiana, 379 U.S. 64, 74 (1964), and St. Amant v. Thompson, 390 U.S. 727, 731 (1968)) (internal

citations omitted).

The Court concludes that Gaeschke has demonstrated that his statement would be entitled to

qualified privilege. Gaeschke made the statement at issue to Yacko during his termination. (Yacko

Dep. at Tr. 102.) In terminating Yacko, Gaeschke had a good faith reason as a matter of common

interest for explaining the basis for Yacko’s termination. Gaeschke did not act with actual malice

because he did not have knowledge or reckless disregard as to whether the statement was false. As

explained previously, Gaeschke was directly informed as to Yacko’s various behavioral incidents

during the HRM/SubHRM Meeting and acted on that basis. Therefore, even if Yacko could show

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that Gaeschke had made a defamatory false statement about him, the statement would be protected

by qualified privilege.

Accordingly, and for all the reasons set forth above, the Court GRANTS Gaeschke’s Motion

for Summary Judgment as to Yacko’s claim for defamation (Count Three).

V. Conclusion

For the reasons set forth above, the Court GRANTS Defendants’ Motion for Summary

Judgment. (Doc. No. 27.)

IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: December 26, 2024 U. S. DISTRICT JUDGE

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