Allen v. Ohio Department of Job & Family Services (697 F. Supp. 2d 854, 2010)

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

Plaintiff Anthony Allen (“Plaintiff’) brings this employment action against Defendant the Ohio Department of Job and Family Services (“ODJFS”) and Defendant Mark Birnbrich (“Birnbrieh”). Plaintiff alleges he suffered various adverse employment actions and retaliation in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e and O.R.C. § 4112.02. Plaintiff further asserts state law breach of contract, promissory estoppel, and intentional infliction of emotional distress claims.

This matter is before the Court pursuant to Defendants’ Fed.R.Civ.P. 56 Motion for Summary Judgment (Doc. 30). For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART Defendants’ Motion for Summary Judgment (Doc. 30).

I. FACTUAL BACKGROUND

Plaintiff Anthony A. Allen is an African-American male who was employed with Defendant ODJFS from September 13, 1998 until October 20, 2006, when Plaintiff was terminated by Defendant. Plaintiff is also a veteran of the U.S. Air Force. He has been promoted to the rank of Lieutenant Colonel, U.S. Air Force Reserves and is assigned and reports to the active duty Air Force.

A. Allen’s Employment 1998 through 2002

Allen began his employment with ODJFS in September 1998 as an Administrative Assistant 4 (“AA4”). From 1998 through 2001, Allen was directly supervised by John Weber, a Bureau Chief in the Ohio Workforce Development Office (“OWD”). Weber states that he transferred Allen to work under Gerry Cain, an African-American Bureau Chief in OWD at ODJFS because of “consistently insufficient work product.” According to Allen, he was transferred to Cain as a result of the Governor’s Executive Order that merged the Ohio Bureau of Employment Services with the Ohio Department of Human Services.

Plaintiff Allen was directly supervised by Cain from 2001 through 2002. Cain believed that Allen was transferred because he was a disruptive, problem employee and had stopped speaking with his supervisor. While supervising Plaintiff, Cain indicated that Allen was knowledgeable, detail-oriented, and she could count on him to do a job correctly. She also noticed, however, that he would sometimes attempt to give his work to other people to complete. In addition, she noticed that Allen would sometimes forward phone calls to her instead of answering the questions himself; that he had an attitude; that he would forward emails to people who should not have been privy to them; and that he failed to timely provide her with information she had requested of him, or would altogether refuse to provide the information to her. In addition, Cain testified that on at least two separate occasions, Allen failed to attend mandatory meetings, and would sometimes “challenge” her with respect to who should perform certain daily tasks. Cain also indicated that on a couple of occasions, Allen was verbally disrespectful in his communication with her. Cain also described Allen’s work as fragmented and poor and that he “always had an excuse.”

In March 2002, Cain recommended and issued to Allen a 3-day suspension for insubordination. Specifically, Allen was disciplined for: a) consistently failing, even after being issued a corrective counseling, to carbon copy Cain on all correspondence; and b) for failing to complete an assignment in a timely manner and directing Cain to assign it to someone else for completion. Cain testified that Weber urged her to pursue disciplining Allen for these identified behaviors, and told her if she did not, then he might discipline her. She further testified that she “may not have” pursued actual discipline if she had not been urged by Weber.

As a result of the initiation of the 'predisciplinary hearings and investigatory interviews that ultimately resulted in the 3-day suspension, Allen lodged a complaint against Cain with the Federal Defense Logistics Agency. He also separately complained that the work he was assigned to do was not appropriately within his job duties and was, instead, a clerical function.

In May 2002, Cain complained to Bruce Madson, the then-Assistant Deputy of the OWD, that Allen had problems with female supervisors. In response, Allen requested that he be transferred to a different supervisor. Allen complained that he had “to deal with less than optimal working conditions daily” while working under Cain. (Cain Dep., Ex. L).

B. Allen’s Employment Late 2002 Through 2004

In late 2002, Allen was assigned to Mark Birnbrieh, Assistant Deputy Director for OWD. As an AA4, Allen was to relieve Mr. Birnbrieh of his most difficult administrative duties.

Initially, Birnbrieh and Allen’s relationship was stable. Birnbrieh sent emails to Allen, complimenting him on his hard work. In February 2003, Birnbrieh gave Allen a satisfactory evaluation, which Allen viewed as “decent.” Birnbrieh made some very positive comments in the evaluation, although he noted that Allen needed improvement in certain areas. For the period of time covering this evaluation, Allen had been working as an AA4 on Work Force Development Area 7, where he wrote policies, reviewed financial statements and Department of Labor audits.

1. Allen’s Assignment to the Ohio Tax Training Credit Program

In February 2004, Allen was assigned to one of the programs administered through OWD’s Bureau of Tax Credits called The Ohio Tax Training Credit Program (hereinafter “OTTC”). The OTTC is a program whereby employers can apply on-line for tax credits for providing training to their employees. The program started in 2001, was defunded in 2002 and 2003, and was funded again in 2004. Initially, employers applied for tax credits through written applications. Credits were awarded to employers on. a first come, first serve basis. This structure created an incentive for employers to submit their applications in the first few hours that the program went “live.”

Before Allen was assigned to OTTC, Bureau Chief Dwight Garner was responsible for the program. Garner was a pay range 16 and was also responsible for four other ODJFS programs. In January 2004, when the program went live on-line, it crashed twice because too many employers attempted to submit applications at the same time. ODJFS Management did not blame Garner for the crashes.

After the crashes, Birnbrich and Allen were temporarily assigned to the OTTC program. Birnbrich believed that Allen had demonstrated that he had the knowledge and ability to handle OTTC, as Allen had previously assisted with some prior OTTC functions before the crash. Allen disputes that he had prior experience with the OTTC program.

2. Assignment to Second Floor Cubicle

In conjunction with his assignment to OTTC, Allen was told he would be assigned a walled-off cubicle on the second floor close to the OTTC staff that he would supervise. This cubicle was occupied by Garner. On the second floor, there was an office fashioned into a conference room, and Garner was offered that office. Garner decided to stay where he was so that the conference room he was offered could continue to be used by his staff as a gathering place. Allen alleges that Garner was given a direct order to move from his cubicle to the conference room, although he did not hear the order. Garner denies being ordered to move, and Birnbrich denies that he made such an order. Allen further alleges that Birnbrich literally said the words “move ... or else.” Garner did not move, and Allen was given the largest cubicle on the second floor, near a window. Allen alleges he “complained of unfair treatment” to Birnbrich.

3. Denial of Temporary Working Level Promotion

On or about February 25, 2004, shortly after being assigned to OTTC, Allen asked for a raise. Specifically, Allen complained about not receiving proper pay for his new assignment and requested a Temporary Working Level (“TWL”) promotion for work that was previously the responsibility of Garner, who was a pay range of 16. Birnbrich denied Allen’s request for a TWL promotion, explaining that since the assignment to OTTC was consistent with Allen’s usual AA4 duties, additional compensation was not appropriate. Allen alleges that this denial was in direct violation of Defendants’ workplace rules, policies and procedures regarding employees performing work that was previously assigned to higher classified employees.

4. Denial of Position Description & Complaint of Discriminatory Treatment

In March 2004, Allen requested a position description that outlined his new duties and responsibilities and also for a salary increase. Birnbrich denied Allen’s requests. Allen alleges that Birnbrich ordered Allen to do the job or face disciplinary action. Allen further alleges that, after the Birnbrieh’s denial of his requests, he complained to him regarding discriminatory treatment due to the pay discrepancy and failure to provide proper job description. Allen states that he then contacted ODJFS human resources for a position description, and when Birnbrich learned of this, he directed Allen to refrain from contacting human resources about the new job and ordered him and other OTTC staff not to involve Garner or Winegar regarding the OTTC program.

5. Allen’s 1-day Suspension

On March 30, 2004, Winegar requested to meet with Allen and his staff to obtain information regarding problems with the OTTC program. Allen states that he declined to meet with Winegar based upon a direct order from Birnbrich not to involve Garner or Winegar in the daily operations of OTTC. Allen further states that Birnbrich had made it clear that all 2004 customer complaints were to come to Allen or himself only. Birnbrich testified that he does not recall ever directing staff not to speak to a superior, and he could think of no reason why OTTC staff should not talk to Winegar. Birnbrich testified that Allen and other OTTC staff apparently misinterpreted his explanation of the chain of command and his directions that all 2004 customer complaints were to come directly to Allen or himself to mean the staff should not talk to anyone other than Allen or Birnbrich.

Allen received a one-day suspension, effective July 2004 for this incident. Allen alleges that because his refusal to speak to Winegar was in direct compliance with Birnbrich’s orders not to involve Garner or Winegar in daily operations, the one-day suspension “was clearly in retaliation for complaining of discrimination and improper treatment.” (Allen Aff. ¶ 18).

Defendants explain that there are four discrete steps in ODJFS’ typical disciplinary process. According to Defendants, neither Penny Purviance, the Labor Relations Liason for OWD, nor Birnbrich have any control over the final two steps of the process. The first step in the ODJFS disciplinary process is that a supervisor will advise the Labor Liaison, in this case Purviance, of perceived misdeeds by an employee. Purviance testified that the usual, but not a required next step, is an investigatory interview, which she conducts. It is in the investigatory interview that an employee has one of two opportunities to present his side of the story. Often, after the investigatory interview, the matter appears to be a misunderstanding or is an issue that can be corrected with no further disciplinary action. If that is not the case, then Purviance discusses the issue in her office with other managers and the Deputy. She may then make a request for discipline that is approved by the Deputy Director. This is not a request for the imposition of specific discipline, but is a narrative of the events that OWD believes suggest that there has been a violation of ODJFS policy, requiring the imposition of some discipline.

The request for discipline is then sent to Labor Relations, who has discretion to initiate whatever next steps it believes are appropriate. Labor Relations may elect to set up a pre-disciplinary meeting with the employee. This will provide the employee his second opportunity to present his side of the story. The employee is notified at least 72 hours in advance of the pre-disciplinary hearing and is given an explanation of what the employer believes he did wrong. At this pre-disciplinary meeting, Purviance represents management, and just listens.

Once evidence is taken from management and the employee, the Labor Relations Hearing Officer will draft a recommendation. The recommendation will establish which, if any violations identified by OWD, it believes were founded. The recommendation will then advise whether there is just cause for discipline. Labor Relations reviews the disciplinary code to determine what is appropriate. This recommendation is then sent to the ODJFS Director who decides whether to impose discipline involving suspensions or removals. The Director never solicits OWD’s recommendation for the imposition of specific discipline.

Consistent with the above-described process, Purviance interviewed Allen about the Winegar incident. In this meeting, Allen had an initial opportunity to explain the incident from his perspective. After the interview, Purviance, as is her typical practice, drafted a request for discipline that communicated to ODJFS’ Labor Relations Department that OWD believed Allen violated policy. Human Resources then conducted a pre-disciplinary hearing, wherein Allen had a second opportunity to explain his side of the story.

After the predisciplinary meeting, Human Resources made a recommendation to the Director as to an appropriate level of discipline. For the insubordination to Winegar, Allen received a one-day suspension.

6. Allen’s 2003-2004 Evaluation

In May 2004, Allen got another “satisfactory” evaluation from Birnbrich, but he was also rated “below meets” on three goals. This evaluation covered just a few months of Allen’s time at OTTC.

Allen alleges that several factors other than his performance led to the “below meets” assessment. First, on May 2, 2004, Allen and another African-American employee, Steve Clayborn, were directed to provide testimony under oath to the ODJFS Chief Inspector regarding an alleged complaint of wrongdoing by Birnbrich that the Ohio Inspector General was investigating. Allen states that Clayborn, too, received a negative evaluation after giving testimony. Though Birnbrich does state or indicate that Birnbrich knew of the complaint or the testimony provided by Allen, Allen speculates that the ODJFS Chief Inspector, Rick O’Claire “knew” Birnbrich, and that their knowledge of one another suggests that Birnbrich would know about Allen’s participation in the investigation. Birnbrich disputes that he was aware of the testimony or of any complaints of discrimination made by Allen prior to the 2003-2004 evaluation.

Second, Allen alleges that a letter sent on May 7, 2004 by the Department of Labor to ODJFS caused the “below meets” assessment. The letter related to Allen’s USERA charge that ODJFS had discriminated against him on the basis of his military obligation by suspending him for 3 days in 2002. Allen testified that Birnbrich never mentioned that he was aware of this letter.

Finally, Allen alleges that he was “treated differently than others” in that he was held accountable for 12 months of work during his evaluation period even though he was only there for 8 months due to his military obligation. (Allen Aff. ¶ 22).

In June 2004, Allen appealed his evaluation to Labor Relations, and the appeal was denied. In the appeal of his evaluation, Allen complained that he was not being compensated at the same rate as Garner. Allen made several comments in his appeal regarding Garner’s management of OTTC. Allen believed he was making these comments in confidence to Becky Castrano, an employee in Human Resources. Birnbrich, however, learned of these comments, and “raked him over the coals,” by telling him not to involve Garner in his evaluation dispute. Allen also complained at this time that he was never given an updated position description that reflected his new assignment to OTTC.

7. August 2004 through December 2004

Defendants, in their Motion for Summary Judgment, reference several instances in late 2004, which they allege demonstrate that Allen “shirk[ed] his responsibility to manage and make decisions for OTTC.” (Defs.’ Mot. for Summ. J. at 11). The first of these instances relates to Birnbrich’s update to the Governor. In 2004, OTTC was still allocating tax credits to the 2001 applicants. By statute, Birnbrich was required to send an update to the Governor regarding how much of the 2001 credits had been distributed to employers. He met with Allen and Borelli in August 2004 to discuss what would go into the update. On September 24, 2004, just before the update was to be submitted on September 30, Allen tendered the update to Birnbrich. Birnbrich did not think that the update was adequate because it did not include the analysis he asked for from Borelli and Allen in August. The update was sent as is, however, because of the proximity of its due date to thé Governor.

Next, Birnbrich alleges that Allen also submitted an inadequate project plan for OTTC after Birnbrich made several specific requests for the plan in the late summer 2004. In early August 2004, Birnbrich specifically requested an update and a project plan for the OTTC 2005 launch. In November 2004, Birnbrich asked for this same information again. Allen alleges that he responded to this email. In December 2004, Birnbrich indicated to Allen again that the information he sought "about OTTC was incomplete. Allen defends his submission to Birnbrich in his email response to Birnbrich by concluding that Birnbrich really didn’t need the information since it had come in other forms or there had been no change in certain areas.

In November 2004, Birnbrich, in email to Allen, confronted Allen about how he represented the decision-making process to another ODJFS employee:

(1) In response to your email on 11/22 to John Richards, you make a statement that ‘Jeff has got the ball and go no go decisions should be kicked to Mark’ .... I hope that was just for the meeting you could not attend and not reflection of the 2005 OTTC process. You have been part of the 2005 process for over 9 months and my expectation is that you have the ball and responsibility for the 2005 OTTC process.

(Allen Dep., Ex. Y).

Birnbrich and Borelli testified that in December 2004, just before the OTTC online application was to “go live” in January 2005, OTTC employees were so lost about the process that Birnbrich had to step in and .give specific assignments to Allen’s staff. In addition, though the legislative amendment proposed by Allen was adopted in December 2004 by Governor Taft, Borelli had to substantially rewrite the Ohio Administrative and Revised Code Rules that Allen had originally drafted to implement the OTTC lottery process.

Defendants also allege that Allen was rude again to Winegar. In December 2004, Allen sent Winegar an email regarding the changes to the Administrative and Revised Code Rules that needed to be entered into a specific database for electronic transmission. His first email to Birnbrich said the rule packages must be entered ASAP. Winegar, who was copied on the email, asked, “What is the time frame for this?” Allen’s opening line in response was, “This is an emergency.” He then explained that the rules needed to be filed by December 20 and January 3, but did not include any other information about when the packages needed to be entered to make the filing possible. When Winegar asked him for specifics on how much time the office had to prepare for the filings, he told her to call someone else.

Further, Defendants allege that Allen failed to properly monitor and plan for the work time of a key intermittent employee, Linda O’Connor. Defendants explain that State agencies are permitted to hire employees to work on an intermittent basis pursuant to O.R.C. § 124.30, however, the amount of time that an intermittent may work is limited. Linda O’Connor was viewed by Borelli as the creátor of OTTC, but in 2004, she was working as an intermittent employee. Birnbrich asked Borelli and Allen to plan for the use of her time so that OTTC got the maximum benefit. In late December 2004, Birnbrich still did not have this information, so he asked for it again. When Birnbrich asked for this information a second time, other concerns had been raised about O’Connor, and Birnbrich shared those with Allen, specifically asking Allen not to share these concerns with anyone else. When Allen responded to the inquiry about O’Connor’s time, Allen said he would have to discuss it with Dwight Garner, which was contrary to Birnbrich’s wishes of confidentiality. When Birnbrich confronted Allen about this, Allen complained that he had no access to the time keeping system so he couldn’t answer the question about how many more hours O’Connor could work. Allen then provided the “recommendation” for the use of O’Connor’s time: her remaining hours could be cancelled or she could continue to work.

C. Allen’s Employment 2005 through 2006

On January 25, 2005, Allen emailed ODJFS Director, Barbara Riley, regarding unfair treatment, complaining of Birnbrich and that he did not have a position description. Riley replied that she asked the Assistant Director and Human Resources to provide information regarding the situation. Allen did not thereafter hear from Riley.

On January 27, 2005, Allen was transferred back to the operations side of OWD. Birnbrich testified that though Allen had performed certain limited tasks well, including creating the concept for the 2005 lottery, and though he openly praised Allen when he felt Allen had done a good job, the reason for the transfer was that Allen’s overall performance was unsatisfactory. Allen states that the rationale for his transfer was not explained to him and that Birnbrich, Demidovich and Purviance had indicated that he had done a good job with OTTC. (Allen Aff. ¶ 27). Allen states his “good job performance” is further validated by ODJFS’s recognition of the success of the OTTC on its list of quarterly accomplishments.

On February 7, 2005, Allen was placed on a Performance Improvement Plan (“PIP”). Defendants allege the PIP was a result of Allen’s pervasive problems managing OTTC and that the PIP was instituted to change Allen’s behavior and to make him a more successful member of OWD by detailing and outlining specific activities, deliverables, communication protocols, due dates, and project expectations for which Allen was responsible. The PIP also set forth various people with whom Allen could consult on each project. Allen alleges that he had not been warned of any performance issues with the OTTC during the year he managed the OTTC program or at any time prior to being placed on the performance plan, nor had he been evaluated with respect to his work in OTC before being placed on the plan. Allen met with Birnbrich and Beverly Flowers, the AA4 for Bill Demidovich, to go over the PIP in detail. During that meeting, Allen maintained that he understood his assignments and the obligations being placed upon him through the PIP. Birnbrich testified that it was made clear that Alen was not to delegate assignments that he was responsible for under the PIP and that he would not be assigned staff to whom he could delegate such responsibilities.

Defendants assert that the original February PIP was updated in July 2005, August 2005, February 2006 and August 2006 because Alen was unwilling or unable to comply with the assignments on the original PIP. Ultimately, the PIP was continued from the date it was issued until Alen’s termination in October 2006. Alen alleges that he was subject to the PIP in retaliation for complaining of discrimination. He further alleges that being placed on a continuous PIP for so long contradicts Defendants’ work rules and policies. (PL’s Memo, in Opp. at 13-14).

1. Allen’s PIP Assignments

Birnbrich testified that he utilized Alen’s weekly summary reports about the status of assigned projects to evaluate Allen’s progress and performance under the PIP. He alleges that generally, when Alen met a PIP deadline, the work was of unacceptable quality. Birnbrich states that he regularly notified Alen of these deficiencies, both verbally and through email.

(a) Allen’s OWD Newsletter Project

One of Alen’s projects under the PIP was to coordinate OWD’s newsletter. In March 2005, a month into Alen’s PIP, Birnbrich asked Alen for a draft layout of the newsletter, and Alen responded with a page filled with X’s. Birnbrich testified that he had made it clear that he expected more than a form with X’s on the page and that he expected Alen to have met with the Bureau Chiefs to get articles. Consequently, Birnbrich directed Alen to set up a schedule of when to meet with Bureau Chiefs.

Alen states that in August 2005, Director Riley sent an email to Deputy Director Demidovich acknowledging staff for the nice job on the OWD Newsletter, which Alen had written. Birnbrich testified that the overall quality of work produced by Alen on the newsletter was sub-par, although a good final product was delivered on at least four occasions with the help of other staff. Birnbrich also states that on at least two occasions, Alen failed or refused to make suggested changes to the newsletter and instead directed staff, including Purviance, to make the changes herself. Finally, Birnbrich alleges that he had issues with Alen representing the newsletter was done when it had not been published, which required Birnbrich to have to follow-up with Alen to ensure that the projected timelines for the newsletter would be met.

(b) Allen’s SCOTI Help-Desk Survey Project & The Counseling Memorandum

SCOTI is an online program run by ODJFS allowing employers all over the state to advertise jobs and allowing job-seekers to apply for those jobs. The SCO-TI program employs between 10 and 13 employees of various classifications in various pay ranges who answer help-desk calls when employers or job seekers call in with questions.

Under the PIP, Alen was to train himself with the web-based training tool, design a survey for employers and job-seekers that would help OWD understand what about SCOTI did and did not work for them. Then, Alen was to call 50 employers and 50 job seekers every two weeks to gather enough data to formulate an opinion about the virtues, deficits and possible changes to SCOTI. The purpose of the project was to glean information from employers who had utilized the system, analyze the data provided by them, and make assessments as to the effectiveness of the program.

Allen was the only person assigned to conduct the SCOTI survey. SCOTI staff pulled employer and employee data and provided it to Allen so that he could complete his project. Sometimes, portions of the data that Allen received from the SCO-TI staff were incorrect and Allen had to check the data before moving on with his portion of the project. Many times, however, Allen, in frustration that there were, for instance, duplicate employers listed, would simply send the incorrect information back to SCOTI staff and direct them to correct it before he made any calls. He regularly complained that he simply could not make phone calls to employers with “unclean” data that the SCOTI staff had provided to him. Allen was not held accountable for falling below the required number of calls when the data provided to him was incorrect, and he admits that it is possible that Birnbrich moved his due dates forward as a result of the incorrect data being provided to him.

Allen complained that the project was bargaining-unit work and that, in performing such duties, he was working outside of his AA4 classification. Allen did not request a position audit and, to his knowledge, the union did not file a grievance about Allen’s performance of these duties. Birnbrich disputes that this project was bargaining unit work, contending that this project involved more than simple data-collection and required Allen to utilize an analytic skill set. Allen also alleges that he had a larger workload then any other AA4 assigned to OWD, and complains that his requests for help making the phone calls and his requests for authority to delegate were denied. (ComplV 29).

Defendants assert that Allen refused to perform even the most basic aspects of the SCOTI project and spent a great deal of time crafting excuses as to why he could not do his job, rather than simply performing the tasks assigned. According to Defendants, in August 2005, notwithstanding the fact that Allen had access to employers’ database information, he refused to spend the time to review the information prior to contacting employers and instead passed the employers off to local operations for followup. In July 2005, Allen promised a human resources representative from one of the local employers that someone would get back to her before 2 o’clock p.m. Allen then proceeded to email Jim Hill, the OWD Bureau Chief responsible for SCOTI, and told him to call the human resources representative back without first determining if Hill was even in the office that day. In another instance, in conducting his survey, Allen learned through an employer that the quality of applicants through SCOTI was not very good. When he passed this information along to Jim Hill, he was unable to identify a job order number to permit Hill to access the appropriate record. When confronted, Allen indicated he did not work in SCOTI, that he was not responsible to “chase down job orders,” and blamed SCO-TI for the lack of information.

Defendants assert that in December 2005, Allen complained that “cleaning” the records was taking too long, that “cleaning” records was a task that should be assigned to SCOTI staff, and that he was unable to do his job when the SCOTI staff provided him with erroneous information. When Birnbrich directed him to begin calling those employers for whom he had “cleaned” records, Allen again complained that he was the only person being assigned to make the calls and that the task was outside his job classification and should be performed by SCOTI staff. Allen indicated in a December 2005 email to Birnbrich that the performance issues raised by Birnbrich were “not a matter of performance, but of [Allen’s] race.” (Allen Dep., Ex. IIII). He also stated: “This is another example of ongoing, harassment, threats and retaliation that is initiated by you and management.” (Id.)

In addition, Alen emailed Birnbrich and Weber, indicating his belief that the SCO-TI project was a waste of time. Birnbrich asked Alen to come up with solutions for getting referrals to show up, ways to track who shows up and who gets hired, and ways to track the quality of referrals. Alen proposed a plan to set up an automated survey system using an autodialer whereby employers and job-seekers would be auto-dialed and asked automated questions. Birnbrich expressed concern for this approach since, in his experience, the auto caller feature had no mechanism by which the person receiving the case could respond to questions. Alen also suggested calling job seekers as a means of establishing whether they were quality referrals. Birnbrich questioned this approach since the original inquiry was to gauge whether the employers felt they were getting quality SCOTI referrals.

Alen, in response to these issues, wrote back to Birnbrich: “you are unwilling to accept my work and continue to treat me significantly different from others for obvious reasons. What’s the basis of the ongoing harassment? Everyday, that I come into work, I have to defend myself.” (Alen Dep. 429; Ex. QQQQ). Alen forwarded this email to ODJFS Director Barbara Riley.

On March 16, 2006, Bill Demidovich, OWD Deputy Director, held a counseling session with Alen regarding his response. He told Alen to answer Birnbrich’s questions and to apologize for being insubordinate. He was asked to sign a “Counseling Memorandum.” The Memorandum references Alen’s email and concludes the email was unacceptable and insubordinate. (Alen Dep., Ex. TTTT). Demidovich concludes in the Memorandum that Birnbrich was not treating Alen “any differently nor harassing [Alen] by asking questions of clarification.” (Id.). The Memorandum issues a reminder to Alen that he is “still under a direct order from [Demidovich] last year to get your work done.” (Id.). Finally, the “Actions” section of the Memorandum provides:

-Stop the bantering back and forth with your immediate supervisor and do your work.

-You are to send an e-mail of apology to Mr. Birnbrich immediately.

-You are to provide a responsive answer to Mr. Birnbrich’s e-mails.

-Again, I consider this behavior insubordinate and if it continues I will forward to HR for disciplinary action.

-Today will be noted as a counseling -Mr. Birnbrich will be notified of this meeting.

(Id.). Alen interprets this language as providing him with “a direct order to stop complaining about discrimination.” (Pl.’s Memo, in Opp. at 20). Alen alleges that he did respond to Birnbrich’s questions, though he could not say when and does not have evidence of any written response. Demidovich also asked Alen to sign the Counseling Memorandum memorializing the session.

(c) Allen’s Submissions of Weekly Reports

Alen was required to submit weekly reports to Birnbrich so that Birnbrich could assess Alen’s progress on his PIP. One purpose of the “weeklies” was to provide Alen an opportunity to ask questions, indicate problems he was having, and get clarification from Birnbrich. Defendants assert that Alen failed to report specific problems and instead simply complained of being unable to perform tasks. Defendants also assert that Alen would misstate the status of his projects on his weeklies and would also fail to respond to substantive questions posed by Birnbrich regarding his projects.

(d) Allen’s OWD Tracking Reports

One of Allen’s responsibilities was to organize a calendar that would track all of the reports OWD had due in a year. The Bureau Chiefs were to identify which reports were to be tracked, and Allen was to maintain communication with the Bureau Chiefs, create a policy for reviewing and tracking the reports, and then track them.

Allen was also assigned the responsibility for reviewing the reports. Allen agreed that this project may have been appropriate for his classification as an AA4. Defendants assert that Allen’s suggested report tracking method was impossible to implement, and his emails created confusion and the need for clarification and follow-up. On one occasion, Allen imposed a deadline upon Bureau Chiefs for the submission of certain reports to the Deputy’s office without first discussing the deadline or its implications with the Bureau Chiefs. Defendants assert that this imposition of additional deadlines on Bureau Chiefs, without any prior discussion, created problems, rather than eliminating them.

Defendants note that on at least one occasion, Bureau Chiefs expressed their confusion about their role in the project, as well as the project’s direction, requiring Birnbrich to sort the matter out. Allen recalled being “called to the carpet” for submitting a report late. Allen defends the delay by stating that he did not have the expertise to evaluate data provided to him and to determine if it was correct,

(e) Allen’s Revision of the OWD Website

Allen was also tasked with the responsibility for revising the OWD website and for coordinating with Bureau Chiefs about organizing each bureau’s information. This is a project for which Allen was responsible before his PIP. Defendants allege that he inadequately performed this task. In support of this allegation, Defendants cite Allen’s repeated lack of communication with Bureau Chiefs on this project, claiming it created confusion and resulted in necessary followup by Birnbrich. Specifically, Defendants assert that on one occasion, Allen solicited comment from Bureau Chief John Weber about the information for Weber’s bureau to be included on the website, and in response, Weber expressed confusion about the kind of commentary Allen was requesting and indicated that, based upon what Allen provided, “there is not much to work with.” Several months later, in July 2005, Allen sent an email to Bureau Chiefs indicating to them that the OWD website was completed “a month ahead of schedule” and is now “live.” Garner responded to Allen’s email noting that Allen had selected the wrong link for a program administered by his bureau and said he was “not sure where that came from.” In the same email, Garner asked Allen to explain why the OWD website (the internal website) would not be part of the ohioworkforce.org website (the external website). Allen did not answer Garner’s question, responding “it was originally recommended” that the internal site be part of the external site. During the internal investigation of this incident in August 2005, in conjunction with other issues, Garner indicated that only after speaking with Birnbrich did he finally get his question answered.

Allen disputes the assertion that his performance was inadequate, and references accolades he received from Garner indicating that the “web pages looked very nice” and from John Savage stating “good job, Tony ... Also, that website is OK”; and from Joseph Andrew stating “nice job to you and those that worked on the website. Thanks.” (Pl.’s Memo, in Opp. at 15, citing Birnbrich Dep. Exs. 29, 30).

(f) The Vets Limited Funds Policy Project

In February 2006, Birnbrich assigned Allen to conduct a policy review of the Vets Limited Funds Policy (“VLFP”) and prepare a discussion paper about his review. The drafting of the VLFP had previously been assigned to other staff, but was given to Allen because the other staff had too much work to do. Allen was assigned to work with John Weber on this project. In April 2006, Weber sent Allen an email that explicitly described what he expected from Allen. Weber mentioned that Birnbrich had approved the actions developed by Weber, and directed Allen to “draft language for the revision of the WIA Guidance Letter.” Weber appeared to use the -language “guidance” and “policy” interchangeably.

Allen provided “draft language” for use by Weber’s staff when they wrote the policy. When Weber got the “draft language,” he informed Allen that what was submitted was inadequate. Allen complained to Birnbrich that he was never clear that he had to actually write the policy, which he understood to be something different than the “guidance” he provided. -He also complained about having to do someone else’s work. Birnbrich responded: “you are aware that we have had difficulty filling the positions in this area ... please keep in mind that it is not your responsibility to determine what or who’s job it is on projects----” (Allen Dep. Ex. ZZZZ).

Defendants allege that Allen never put together an acceptable policy, causing Weber to enlist the help of another. Birnbrich cited the failure on this project in Allen’s 2005-2006 annual evaluation.

(g) The Workforce Services Month Project

During Workforce Services Month (“WSM”), county one-stop agencies offer job fairs and other employment-related activities to the public. ODJFS processes county applications for funds to conduct these activities. The first WSM was held in September 2005 and was coordinated by Robin Rice, a white female, Program Administrator 1. WSM was successful and well-received by the Governor’s office.

On July 6, 2006, in Allen’s annual evaluation, Birnbrich identified WSM as a goal, with an initial process plan for the acceptance of applications due by July 12, and an overall plan for the whole event by July 17. On July 12, Allen submitted a plan that Birnbrich concluded “does not address what is listed in your goals/perf eval that is due by 7/12. What is requested by 7/12 is about the process and communication flow. What you have submitted is start to the 7/17 deliverable.” (Birnbrich Aff. ¶¶ 7, 8; Exh. A). On July 25, 2006, Birnbrich wrote:

We have had many emails and verbal conversations regarding the WSM process plan ... even the latest being after our meeting this morning. I like what I see and direction it appears to be headed, however, I still need the WSM process plan as originally due on 7/12. The process plan is still extremely important to the overall plan. This morning I just received additional WSM requests (outside our verbal discussion process)....

(Allen Dep. Ex. CCCC). Birnbrich asked for the process plan by close of business that day. Defendant Birnbrich states he was seeking a detailed analysis of who would get the applications and how they would be processed once received. (Birnbrich Aff. ¶ 7). Allen provided a 5-step process, but Birnbrich indicated that this process lacked certain pieces, including where the One-Stop local offices and where ODJFS employees fit into the process. (Allen Dep. Exh. CGCC). Allen responded, “I’ve, done the best that I could on this. I’m sorry that you’re unwilling to accept my work.” (Birnbrich Aff. ¶ 8, Exhibit B).

As a result of this dispute, Deputy Director of OWD William Demidovich got involved. He met with Allen and Birnbrich and had Birnbrich explain what he expected. After the explanation, Demidovich asked Allen if Allen could now complete the process plan. Allen refused. Demidovich then ordered Birnbrich to complete the application process plan and directed Allen to incorporate Birnbrich’s process plan into the overall WSM process plan.

Defendants also allege that as a part of WSM, Allen was expected to train OWD staff on the process plan, and his failure to do so caused several problems with WSM. Allen contests this characterization and asserts that he did a “superb job” managing the WSM project as demonstrated by the accolades from staff and county directors. (Pl.’s Memo, in Opp. at 27). Allen further asserts that he did, in fact, train OWD staff on the process plan.

2. Allen’s 2004-2005 Evaluation and Appeal

In May 2005, Birnbrich evaluated Allen’s performance between May 2004 and May 2005 as “unsatisfactory.” Allen was rated as “below target” on the performance of his PIP. The evaluation covered the eight months Allen had been temporarily assigned to OTTC and four months since Allen had returned to the operations side of OWD.

Allen received two “does not meet” ratings in the areas of problem solving, decision-making and eommunication/teamwork. Birnbrich reviewed the performance evaluation with Allen in May 2005. The evaluation addressed Allen’s performance in 2004, which led to the imposition of the PIP, as well as Allen’s recent performance. Defendants allege that Allen’s performance back on the operations side of OWD was unsatisfactory because he failed to follow the performance plan and the assigned activities and duties outlined on it. Defendants further allege that Allen had poor judgment in the performance of those assigned activities and failed to meet assigned due-dates, and finally, that he spoke with individuals with whom he did not need to consult to complete his projects. Allen disputes that he had performance issues and instead asserts that he was “an excellent employee” and that he “did extremely well while managing the OTTC Program, as well as in other areas in which he worked.” (Pl.’s Memo, in Opp. at 12).

On May 25, 2005, Allen internally appealed the 2004-2005 Evaluation. Allen’s appeal was denied on June 6, 2005. On June 9, 2005, Allen appealed that decision and was again denied. Allen then appealed his performance evaluation to the Ohio Department of Administrative Services (“ODAS”). ODAS determined that the evaluation would stand as issued.

3. Allen is Denied a TWL

On January 1, 2006, Allen was denied a TWL to replace Garner in the Bureau of Tax Credits. Allen alleges that he was more qualified than the successful applicant, Alice Worrell, who was a Caucasian female who worked part-time as an Administrative 4. Specifically, Allen states the time he spent in charge of the OTTC program made him more qualified. Defendants dispute that Allen was more qualified, and Demidovich, in his Affidavit, sets forth Ms. Worrell’s qualifications. He further states that Allen was not considered because he “had active discipline on file, poor performance evaluations and was on a performance plan due to poor performance ____” (Demidovich Aff.).

4. Allen’s February & September 2006 Military Duty

On February 2, 2006, two days before Allen was to report for military duties at the Pentagon, Allen was told to go home and return before the close of business with the name and telephone number of his Commander. Allen states that he was told that if he did not do so, he would be terminated. Plaintiff alleges that other ODJFS employees who are members of the National Guard/Reserves are not asked to provide the names and numbers of their commanders.

On February 6, 2006, while Allen was on military leave, Demidovich, Birnbrich and Purvianee called Allen’s Commander. Allen asserts that there was no legitimate business reason for their phone call, and alleges that prior to filing complaints of discrimination, his military commander was not called. (PL’s Memo, in Opp. at 19, citing Allen Dep. 510). Demidovich states that the phone call was made to establish contact with Allen’s Commander and to obtain verification of Allen’s duty assignment upon completion for ODJFS records since Allen’s leave was with pay. (Allen Aff. at Ex. 1J, Demidovich Aff.).

According to Allen, on August 8, 2006, after he notified Birnbrich of military duty effective September 5 though 27, 2006, Birnbrich threatened Allen with termination for requesting military leave. Allen also alleges that Anthony Augello, on behalf of ODJFS, called and spoke with his Commander’s Executive Officer about his military leave and the need for Allen in the ODJFS office. Allen contends that this call was an attempt by ODJFS to harass and interfere with his military career and to deny him his military leave. (PL’s Memo, in Opp. at 29).

5. Investigatory Interview, Pre-Disciplinary Hearings & Suspension

On August 25, 2005, Allen was investigated based on two emails he sent. The first email was sent to Garner on July 25, 2005. Allen represented to Birnbrich that the July 25, 2005 email answered a question Garner had, and Birnbrich alleges that his follow-up with Garner revealed Allen’s representation was untrue, that Garner remained confused. In the investigatory review, Garner indicated that Birnbrieh, not Allen’s email, remedied his confusion.

The second email prompting the investigation was sent by Allen to all OWD Bureau Chiefs on August 2, 2005. The email directed the Bureau Chiefs to respond to his inquiries, whether they were written or oral, in writing. According to Defendants, several Bureau Chiefs contacted Birnbrich, complaining that they now had to communicate in writing to Allen about everything. Birnbrich then emailed Allen, telling him it was inappropriate to direct Bureau Chiefs to communicate with him in writing and instructing him to contact Bureau Chiefs to clarify the email. Defendants allege that follow-up by Birnbrich revealed that three out of five Bureau Chiefs were still confused as to Allen’s directive. Allen states that Garner confirmed the Bureau Chiefs were not confused and approved the website, and therefore, Allen contends there was no legitimate business reason to investigate him. (Allen Aff. ¶ 33).

This matter was investigated by Purvianee, and ultimately a pre-disciplinary meeting was set. The pre-disciplinary meeting for this incident was scheduled to be held on September 13, 2005. On September 8, 2005, Aleta Guilford, ODJFS human resources employee, contacted Allen about picking up the pre-disciplinary packet. Later that day, Pamela Rumbaugh-Fisher, another ODJFS human resources employee, contacted Purviance to notify her that, per agency policy, employees must be given a three-day notice prior to the actual pre-disciplinary hearing. Allen was unaware of the notification requirement and disputed that such requirement exists. Since Allen’s predisciplinary hearing was scheduled for September 13, 2005, Purviance was given a direct order by Deputy Director William Demidovich to order Allen to pick up the pre-disciplinary package that day. Allen alleges that he was ordered to pick up the pre-disciplinary package from Human Resources that day or he would be terminated.

The pre-disciplinary meeting was continued to February 21, 2006. Defendants allege the continuance was because between the time that the pre-disciplinary meeting was held and the Labor Relations Officer’s report was written, OWD identified what it believed were other rule violations by Allen. Allen alleges this delay is in violation of agency policy. (ComplV 28). He further alleges that the delay was upsetting to him because the matter was held over his head for an unnecessarily long period. (Allen Aff. ¶ 17).

In December 2005, Plaintiff emailed ODJFS Director, Barbara Riley, about discrimination he alleges he was subjected to in OWD. (ComplV 32).

On February 21, 2006, the day the predisciplinary meeting as to be held, Allen called in sick. According to Defendants, Allen was directed by Birnbrich, pursuant to ODJFS policy and at the order of Human Resources, to secure a doctor’s verification of his illness. Allen alleges this was in violation of ODJFS policy. The predisciplinary hearing was held on February 23, 2006. Defendants allege that Allen refused to answer any questions or otherwise participate in the meeting.

A second pre-disciplinary hearing was held on March 27, 2006, wherein the Counseling Memorandum was addressed. According to Allen, he was entitled to but denied legal counsel at the hearing. Allen further alleges he was not given the opportunity to question witnesses during the hearing. Deborah Connelly, a Labor Relations Department Hearing Officer, conducted both hearings. She issued a predisciplinary memorandum in which she generally found that Allen failed to carry out work orders, refused to cooperate in the investigation and was insubordinate. Ms. Connelly found just cause to discipline Allen and prepared a report about the two meetings, sending the report to Director Riley. Director Riley gave Allen a ten-day suspension, without pay, effective June 5 though June 16, 2006.

Plaintiff states that he was placed on physicians orders not to return to work for 2 weeks, effective May 22 through June 2, 2006 due to mental stress and physical harm resulting from the alleged discrimination, retaliation and harassment.

6. Allen’s Alleged Leak of Internal Communications

Since 2004, Birnbrich repeatedly instructed Allen not to send his internal emails to outside entities. On August 9, 2006, Allen copied Patricia Garrison, the Executive Director of Area 7 on internal communications. (Allen Dep., Ex. HHHHH). In the email correspondence, Garrison specifically states “Tony did copy in my office and called me regarding budget changes.” (Id.). Garrison also noted in her email that she sensed “reservations coming from [Birnbrich],” and Birnbrich responded by explaining: “Regarding my reservations, this is an internal matter and should remain as such.” (Id.).

7. Allen’s August 2006 PIP & Alleged Threats

On July 7, 2006, Allen received an unsatisfactory annual performance evaluation. Plaintiff, citing racism and discrimination, signed the evaluation under protest.

On August 9, 2006, Allen’s performance plan was continued or renewed. Allen alleges he was threatened by Birnbrich and Purvianee “to sign the performance plan or else,” but that he refused to sign it. (PL’s Memo, in Opp. at 27). Allen testified that he did not sign it because he “didn’t feel comfortable signing it,” though he could not explain why he did not feel comfortable signing it. (Allen Dep. 349-50). Allen further testified that Birnbrich told him on August 9, 2006, that he was going to continue his treatment of him until he stopped filing charges of discrimination and dropped his charges. (Id. at 354-55).

Allen alleges that on August 18, 2006, Birnbrich “startled” him by throwing the August 2006 PIP on his desk. (Allen Aff. ¶ 64). Allen further alleges that when he again refused, Birnbrich returned with Winegar and said “this is your last chance.” (Allen Dep. at 357). Allen continued to refuse to sign the performance plan.

D. Allen’s Termination

According to Defendants, Allen was terminated on October 20, 2006, due to issues with his job performance, including issues with WSM, customer leaks, failure to create an acceptable process plan and general failure to meet the expectations of his PIP and also because of his unwillingness to accept direction, defiant behavior and repeated failure to carry out and follow directions. Allen alleges that his termination was improper because his PIP was not due to expire until February 2007, yet he was terminated 4 months prior to the time he was given to improve his performance. (Pis.’ Memo, in Opp. at 14). He further disputes that he had job performance issues.

E. Allen’s Formal Complaints of Discrimination

Throughout the course of his employment, in addition to informally complaining to his supervisors numerous times of discrimination and harassment, Allen made several formal complaints of discrimination and retaliation, including two internal complaints of discrimination and nine charges of discrimination filed with OCRC. Allen’s supervisors took part in responding to his OCRC charges of discrimination and were therefore aware of those charges.

On October 1, 2004, Allen filed a complaint with the Ohio Department of Administrative Services, alleging discrimination and retaliation. Specifically, Allen alleged he had been denied supervisory and management authority in that the table of organization did not reflect his status as a supervisor/manager of the OTTC program and that he was denied access to timekeep to approve schedules and manage staff time. Additionally, in the complaint, he complains of the alleged incident wherein Garner did not leave his office against an alleged order to do so. He states: “[i]t appears that I was retaliated against for asking about a raise.... ” (Allen Dep., Ex. BB). He also states that “[ajnother example of disparate treatment is in regard to the evaluation he was directed to write on Jeff Borelli.” (Id.). Allen explains that he had to write an evaluation for Borelli even though Borelli only worked for him for about 45 days, and yet Garner was not disciplined for failing to write an evaluation for Borelli in the previous year. Allen further alleges he was “retaliated against for appealing the evaluation.” (Id.). Finally, he alleges that he was “being retaliated against by Mark Birnbrich for warning not to get involved with a sole source contract to MAXIMUS a vendor that was already doing business with the state. (Id.). He concludes in the complaint that “[t]he work situation has gotten progressively hostile.”

On April 6, 2005, Allen filed another complaint with the Department of Administrative Services, alleging discrimination and retaliation. Specifically, he alleged that on March 2, 2005, he was put on a performance plan even though he did a good job with OTTC. He indicates that he believes the discrimination is based upon his race, gender, age and military status. In addition, he alleges he was retaliated against for providing testimony on behalf of a co-worker in the course of an EOD investigation. (Allen Dep., Ex. DDDDD).

On June 1, 2005, Allen filed a his initial complaint with the Ohio Civil Rights Commission (“OCRC”) and Equal Employment Opportunity Commission (“EEOC”), alleging discrimination and adverse employment actions and retaliation for complaining about discrimination.

On September 12, 2005, Allen filed his second complaint of discrimination and retaliation with the OCRC. Allen alleged that Defendant ODJFS has subjected him to an investigatory interview and pre-disciplinary meeting because of his race and in retaliation for his filing previous charges of discrimination.

On March 22, 2006, Allen filed his third complaint of discrimination and retaliation with the OCRC. Allen alleged discrimination based upon the following alleged incidents: (1) denial of TWL; (2) January 31, 2006 attempt of intimidation of witnesses; (3) February 2, 2006 threats of termination and interrogation; (4) February 4, 2006 call from his supervisors to his military commander to slander and discredit him; (5) February 21, 2006 call to Plaintiff, directing him to see a physician and provide a medical diagnosis for taking 1 day of sick leave; and (6) February 23, 2006 order to Allen to participate in another pre-disciplinary meeting and denial of legal representation at the meeting. (Allen Dep., Ex. FFFFF). Allen concludes that he was “harassed daily for filing charges with OCRC....” (Id.).

On May 25, 2006, Allen filed his fourth charge of discrimination and retaliation with the OCRC, alleging that the 10-day suspension and threats of suspension and removal were unjustified and retaliatory for refusing to drop his charges of discrimination and retaliation. (Allen Dep., Ex. WWWW).

On July 11, 2006, Allen filed his fifth charge of discrimination with the OCRC, alleging that he was directed to perform duties and responsibilities that were previously assigned to a program policy staffer and a bureau chief who was not in his reporting chain.

On August 25, 2008, Allen filed his sixth, seventh and eighth charges of discrimination with the OCRC, alleging discrimination based upon the following alleged incidents: (1) “derogatory” annual performance evaluation (Allen Dep., Ex. QQQ); (2) placement on another performance plan; (3) threats of termination for failure to sign the plan; and (4) interference with his military service by calling his commanding officers.

On November 3, 2006, Allen filed his ninth charge of discrimination, alleging he had been terminated based upon his race, military status and in retaliation for previously filing charges of discrimination. (Allen Dep., Ex. GGGGG).

The OCRC found probable cause that discrimination had occurred. On November 28, 2007, the Equal Employment Opportunity Commission (“EEOC”) issued nine Right to Sue Letters.

F. The Instant Action

On February 20, 2008, Plaintiff filed the present action, alleging he suffered various adverse employment actions and retaliation in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e and O.R.C. § 4112.02. Plaintiff further asserts state law breach of contract, promissory estoppel, and intentional infliction of emotional distress claims. On April 6, 2009, Defendants filed a Motion for Summary Judgment, seeking judgment in their favor on all claims. (Doc. 30). This motion has been fully briefed and is ripe for review.

II. SUMMARY JUDGMENT STANDARD

The standard governing summary judgment is set forth in Fed.R.Civ.P. 56(c), which provides:

The judgment sought shall be rendered forthwith if the pleadings, Depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Summary judgment will not lie if the dispute about a material fact is genuine; “that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate, however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Matsushita Electric Industrial Co., Ltd. v. Zenith