                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0759n.06

                                             No. 08-3413

                           UNITED STATES COURT OF APPEALS                                   FILED
                                FOR THE SIXTH CIRCUIT                                   Dec 03, 2009
                                                                                   LEONARD GREEN, Clerk

NOVELLA LOCKETT,                               )
                                               )
       Plaintiff-Appellant,                    )       ON APPEAL FROM THE UNITED
                                               )       STATES DISTRICT COURT FOR
v.                                             )       THE NORTHERN DISTRICT OF
                                               )       OHIO
MARSH USA, INC., et al.,                       )
                                               )
       Defendants-Appellees,                   )


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

       ROBERT HOLMES BELL, District Judge. Plaintiff Novella Lockett appeals the district

court’s entry of summary judgment for Defendants Marsh U.S.A., Inc., Marsh & McLennan

Companies, Inc. (collectively “Marsh”), and Charles Becker, on her employment discrimination

claims. Lockett contends that she was demoted and terminated on the basis of her race, gender and

age, and in retaliation for protected activity. She also contends that the district court lacked subject

matter jurisdiction over this removed action because she only alleged state law claims. For the

following reasons, we AFFIRM.

                                        I. BACKGROUND

       We adopt the background facts from the district judge’s well-written opinion as our own.




        *
       The Honorable Robert Holmes Bell, United States District Judge for the Western District
of Michigan, sitting by designation.
Lockett v. Marsh
No. 08-3413

              Plaintiff Novella Lockett (“Lockett”) is an African-American female born on
      March 2, 1953. She was hired at Johnson & Higgins (“J & H”) in March 1975 as an
      accounting clerk. Lockett earned multiple promotions throughout her time with J &
      H, and had attained the title Chief Administrative Officer in 1997, when Marsh USA,
      Inc. (“Marsh”) acquired J & H. In 1999, her job responsibilities continued to include
      elements of human resources, technology, finance, and management services
      organization. Marsh’s structure throughout its other regions did not contain a “Chief
      Administrative Officer” position. Beginning in October 1999 and continuing through
      January 2003, Lockett became known as the Regional Human Resources Manager,
      even though Jim Meathe (“Meathe”), the manager for whom she consistently worked,
      and some Marsh documents still referred to her as the Chief Administrative Officer.
      Regardless of her title, her responsibilities remained spread through finance,
      information technology and management services organization.

             In 2001, Marsh’s Great Lakes and East Central Regions merged to create a
      Midwest Region. This brought more responsibility for Lockett. In May 2001, Marsh
      hired Christopher Long (“Long”) as the Regional Human Resources Manager in
      Chicago. Long had a Masters Degree in Labor and Industrial Relations and at least
      12 years of human resources experience. Lockett, who was based in Cleveland,
      continued her varying duties, including human resources.

              In November 2002, Meathe left Marsh and Arlene Corsetti became the
      Regional Leader for the Midwest Region. Corsetti assessed the region and did not
      understand Lockett’s multi-duty responsibilities because Corsetti had no experience
      with a Chief Administrative Officer-type function, and Marsh did not have a chief
      administrative officer role in its organizational structure. Corsetti had previously
      worked with Long in Chicago, and saw Long as the Midwest Region HR manager.
      Therefore, she decided to move Lockett to Office Administrator in Cleveland. Prior
      to informing Lockett of the reassignment, Corsetti asked Becker his opinion and he
      responded with approval, proclaiming, “That would be great. The people in
      Cleveland like her.” In her Office Administrator position, Lockett had two financial
      analysts who reported to her, Jeff Miles (“Miles”) and Sheryl Evans (“Evans”).
      While Lockett received no cut in salary, her responsibilities were reduced in the new
      position.

             Lockett contacted Barbara Silvan, Managing Director of Employee Relations,
      about her confusion concerning her reassignment. Silvan investigated Lockett's
      concerns and found no evidence of unfair treatment. She determined, however, that
      the Company could have done a better job of communicating to Lockett the
      responsibilities assumed by Long when he was hired in 2001. Thereafter, in


                                               2
Lockett v. Marsh
No. 08-3413

       December 29, 2003, Lockett filed a charge of discrimination with the Ohio Civil
       Rights Commission (“OCRC”) and Equal Employment Opportunity Commission
       (“EEOC”) claiming she was demoted because of her race. The EEOC issued a right
       to sue letter on April 13, 2004, after finding it was unable to conclude that the
       evidence established a violation of the relevant statutes.

               Approximately six months later, in October 2004, the New York Attorney
       General filed a civil complaint against Marsh which ultimately resulted in a
       settlement causing the company to pay approximately $850,000,000. Several Marsh
       executives, including Corsetti, resigned, and approximately 3,000 Marsh employees
       lost their jobs in the resulting cost-saving reduction in force (“RIF”). Lockett was
       among those terminated as part of the RIF on November 19, 2004. Evans, a 49-year-
       old white female, and Miles, a 46-year-old white male, Lockett’s two subordinates
       who performed financial support functions in Cleveland with her, were also
       terminated in the RIF. No employees were hired to replace Lockett, Miles and
       Evans, and no financial management services organization support functions were
       performed in Cleveland after the RIF.

                Lockett then filed a second charge with the OCRC alleging race
       discrimination and retaliation in her termination. The EEOC again disagreed with
       Lockett’s allegations, finding that the evidence did not show Marsh retaliated against
       her or discriminated against her on account of her race. A right to sue letter was
       issued and Lockett then filed this lawsuit against Marsh and Becker, claiming (1)
       wrongful demotion on the basis of age, race and gender; (2) wrongful discharge on
       the basis of age, race and gender; (3) retaliatory demotion; (4) retaliatory discharge;
       (5) wrongful discharge in violation of Ohio public policy, and (6) intentional
       infliction of emotional distress.

Lockett v. Marsh USA, Case No. 1:06CV00035, 2007 U.S. Dist. Lexis 73939, at *2-7, (N.D. Ohio

Oct. 3, 2007) (Dkt. No. 55, Mem. Op. & Order) (Lioi, J.) (citations and footnotes omitted).

       The district court, in two separate opinions, entered summary judgment in favor of Marsh

and Becker on all of Lockett’s claims against them and denied Lockett’s cross-motion for summary

judgment on Count VII. Lockett filed this appeal.




                                                 3
Lockett v. Marsh
No. 08-3413

                                                  II.

       On appeal, Lockett challenges the district court’s exercise of subject matter jurisdiction as

well as its entry of summary judgment in favor of Defendants.

       A. JURISDICTION

       The threshold issue raised by this appeal is subject matter jurisdiction. Lockett filed her

complaint in the Court of Common Pleas for Cuyahoga County, Ohio, alleging state law claims of

wrongful demotion and termination based on race, age and gender, and wrongful denial of severance

payments. Defendants removed the action to federal court on the basis of federal question and

diversity jurisdiction.1 Lockett did not move to remand. However, the district court sua sponte

requested briefing from the parties on the issue of its subject matter jurisdiction. See Klepsky v.

United Parcel Serv., Inc., 489 F.3d 264, 268 (6th Cir. 2007) (“<[S]ubject matter jurisdiction may be

raised sua sponte at any juncture because a federal court lacks authority to hear a case without

subject matter jurisdiction,’” (quoting Thornton v. S.W. Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir.

1990)). The district court ultimately determined that Count VII of Lockett’s complaint, which

purported to assert a claim under Ohio Revised Code § 4112 based on the terms and conditions of

employment, was completely preempted by § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B),

and was removable based on the court’s original federal question jurisdiction.



       1
         Although Defendants have acknowledged that both Lockett and Becker were citizens of the
State of Ohio, Defendants contend that the district court had diversity jurisdiction in addition to
federal question jurisdiction because Plaintiff joined Defendant Becker solely for the purpose of
defeating the diversity jurisdiction of the court. In light of our determination that there was federal
question jurisdiction, there is no need for us to consider this alternative basis for jurisdiction.

                                                  4
Lockett v. Marsh
No. 08-3413

       Lockett contends that the district court lacked subject matter jurisdiction because all eleven

counts in her complaint were based upon either Ohio common law or Ohio statutory requirements,

and no federal claims were intended, alleged, or referenced. We review “<de novo the existence of

subject matter jurisdiction as a question of law,’” but we review factual determinations regarding

jurisdictional issues for clear error. Grand Trunk W. R.R. Inc. v. Bhd. of Maint. of Way Employees

Div., 497 F.3d 568, 571 (6th Cir. 2007) (quoting Wright v. Gen. Motors Corp., 262 F.3d 610, 613

(6th Cir. 2001)).

       The district court determined that Count VII of Lockett’s complaint, which asserted a claim

under Ohio Revised Code § 4112 based on the terms and conditions of employment, was an action

“by a participant or beneficiary [in an ERISA plan] to recover benefits due to [her] under the terms

of [her] plan” and “to enforce [her] rights under the terms of the plan,” 29 U.S.C. § 1132(a)(1)(B),2

and that it was completely preempted by federal law. We agree.

       As a general rule, a cause of action arises under federal law only when issues of federal law

appear on the face of the plaintiff’s “well-pleaded complaint.” Metro. Life Ins. Co. v. Taylor, 481

U.S. 58, 63 (1987); Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 325 (6th Cir.

       2
           Section 502(a) of ERISA provides that a civil action may be brought--

       (1) by a participant or beneficiary--

                 (A) for the relief provided for in subsection (c) of this section, or
                 (B) to recover benefits due to him under the terms of his plan, to enforce his rights
                 under the terms of the plan, or to clarify his rights to future benefits under the terms
                 of the plan . . . .

29 U.S.C. § 1132(a)(1)(B).

                                                    5
Lockett v. Marsh
No. 08-3413

2007). Complete preemption is “a narrow exception to the well-pleaded complaint rule.” AmSouth

Bank v. Dale, 386 F.3d 763, 776 (6th Cir. 2004). Complete preemption applies in situations where

“Congress has indicated an intent to occupy the field so completely that any ostensibly state law

claim is in fact a federal claim for purposes of arising-under jurisdiction.” Id. Any complaint

raising this select group of claims is necessarily federal in character and, as such, may be removed

to federal court. Metro. Life, 481 U.S. at 63-64; Gentek, 491 F.3d at 325.

       ERISA contains an integrated enforcement mechanism in § 502(a), 29 U.S.C. § 1132(a), that

is “essential to accomplish Congress’ purpose of creating a comprehensive statute for the regulation

of employee benefit plans.” Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004). Accordingly,

“[a]ctions that could have been brought under § 1132, ‘where there is no other independent legal

duty that is implicated by a defendant’s actions,’ are completely preempted by § 1132.” Thurman

v. Pfizer, Inc., 484 F.3d 855, 860 (6th Cir. 2007) (quoting Davila, 542 U.S. at 210).

       To come within the complete preemption exception “a court must conclude that the common

law or statutory claim under state law should be characterized as a superseding ERISA action ‘to

recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the

plan, or to clarify his rights to future benefits under the terms of the plan,’ as provided in §

1132(a)(1)(B).” Peters v. Lincoln Elec. Co., 285 F.3d 456, 468 n.11 (6th Cir. 2002) (quoting Warner

v. Ford Motor Co., 46 F.3d 531, 533-34 (6th Cir. 1995)).

       Lockett alleged in Count VII that she was discriminated against because she was offered a

lesser severance package than others and because the severance package required her to release



                                                 6
Lockett v. Marsh
No. 08-3413

Defendants from any and all of her potential claims for wrongful and illegal treatment. Lockett

contends that she was entitled to receive enhanced severance benefits under the Marsh 2004

Restructuring Severance Pay Plan (the “Plan”) irrespective of any release of claims. She therefore

asserts that she was denied full participation in the Plan.

        The Plan is governed by ERISA. Nevertheless, Lockett contends that any relationship

between the discrimination claim in Count VII and the Plan is tangential, at best, and should be

governed by the analysis in Wright, 262 F.3d at 614-15. In Wright, we reversed the district court’s

finding that ERISA completely preempted the plaintiff’s state law claims because ERISA benefits

were merely a component of the plaintiff’s discrimination claim:

        Hers is not a lawsuit claiming wrongful withholding of ERISA covered plan benefits;
        it is a lawsuit claiming race and sex discrimination and retaliation resulting in
        damages, one component of which is a sum owed under the provision of the GM
        plan.

Id. at 615.

        Wright does not suggest that a plaintiff can avoid complete preemption by avoiding reference

to ERISA. As we noted in Wright, if the claim under state law should be characterized as a

superseding ERISA action “to recover benefits due to him under the terms of his plan, to enforce his

rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the

plan,” as provided in § 1132(a)(1)(B), it falls within the complete preemption exception to the well-

pleaded complaint rule. Wright, 262 F.3d at 614 (quoting Warner, 46 F.3d at 534 (quoting §1132)).

“It is not the label placed on a state law claim that determines whether it is preempted, but whether

in essence such a claim is for the recovery of an ERISA plan benefit.” Peters, 285 F.3d at 469.


                                                  7
Lockett v. Marsh
No. 08-3413

       In Peters, the district court determined that the plaintiff’s claim that the company breached

its promise to continue his participation in its retirement plan was properly characterized as an

ERISA action to recover benefits or to clarify rights under an ERISA plan, and that it was completely

preempted under ERISA. Id. at 468. In affirming the district court’s decision, we distinguished

wrongful discharge cases in which the plaintiff’s incidental damages award merely included a loss

of benefits under an ERISA plan, and related only peripherally to the ERISA plan. Id. at 469. In

contrast to those cases, we determined that the plaintiff’s claim in Peters – that the company

wrongfully denied him continued participation in the plan – was a claim arising under ERISA’s civil

enforcement provisions. Id. at 468-69.

       In Count VII, Lockett claimed that she had a right to participate in the enhanced severance

benefit option under the Plan and that Marsh wrongfully denied her that option. In contrast to the

Plaintiff's claim in Wright, Lockett’s claim for enhanced severance benefits is not merely one

component of her claim of discrimination. It is a stand-alone claim asserting that she was unlawfully

denied full participation in the ERISA Plan because she refused to comply with the allegedly illegal

terms of the Plan that conditioned receipt of enhanced severance benefits on the signing of a waiver.

Count VII of Lockett’s complaint, like the claim at issue in Peters, is a claim to recover benefits due

under the terms of the Plan, and to enforce her rights under the terms of the Plan. As such, Count

VII falls squarely within the civil enforcement provisions of ERISA. Her claim for severance

benefits is completely preempted by ERISA and the district court properly exercised subject matter

jurisdiction over Count VII on the basis of complete federal preemption.



                                                  8
Lockett v. Marsh
No. 08-3413

        In addition, because the district court had original jurisdiction over Count VII, it properly

exercised supplemental jurisdiction over the remaining state law claims. 28 U.S.C. § 1367 (“[I]n

any civil action of which the district courts have original jurisdiction, the district courts shall have

supplemental jurisdiction over all other claims that are so related to claims in the action within such

original jurisdiction that they form part of the same case or controversy.”).

        B. ERISA CLAIM

        Lockett contends that the district court erred in granting summary judgment in favor of Marsh

on Lockett’s claim for enhanced benefits under the Plan, because she presented sufficient evidence

to create a triable claim under §§ 502 and 510 of ERISA, 29 U.S.C. §§ 1132, 1140.

        We review the district court’s summary judgment rulings de novo. Univ. of Pittsburgh v.

Townsend, 542 F.3d 513, 522 (6th Cir. 2008). Summary judgment is appropriate where “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

        In support of her § 502 claim, Lockett asserts that she was wrongfully denied benefits under

an ERISA plan.

        The district court entered summary judgment in favor of Marsh on Lockett’s § 502 claim,

reasoning that, because Lockett did not sign a waiver as required by the terms of the Plan, Marsh’s

failure to provide enhanced severance benefits was in accordance with the terms of the Plan.




                                                   9
Lockett v. Marsh
No. 08-3413

       In determining whether Lockett was entitled to the enhanced severance benefits, we look to

the language of the Plan. In interpreting ERISA plans we apply federal common law rules of

contract interpretation and give effect to the unambiguous terms of the plan. Univ. Hosps. of

Cleveland v. S. Lorain Merch. Ass’n, Health & Welfare Benefit Plan & Trust, 441 F.3d 430, 437 (6th

Cir. 2006). We interpret ERISA plan provisions “‘according to their plain meaning, in an ordinary

and popular sense.’” Cassidy v. Akzo Nobel Salt, Inc., 308 F.3d 613, 617-18 (6th Cir. 2002) (quoting

Perez v. Aetna Life Ins. Co., 150 F.3d 550, 556 (6th Cir. 1998)). The clear and unambiguous terms

of the Plan provide that only Plan participants who signed and did not revoke a Waiver and Release

Agreement (“Waiver”) would be eligible to receive enhanced severance pay. The Plan did not give

the administrator discretion to authorize enhanced severance pay to Plan Participants who did not

sign the Waiver. Lockett did not sign the Waiver. Accordingly, because she failed to comply with

the express Plan requirements for the enhanced severance pay, the district court properly found that

Marsh could not be held liable under § 502 for the wrongful denial of ERISA benefits.

       On appeal, Lockett contends that she could not be required to sign the Waiver as a

precondition of receiving the enhanced severance benefits because the Waiver illegally required her

to refrain from participating in clearly protected activity.

       We rejected a similar argument in EEOC v. SunDance Rehabilition Corp., 466 F.3d 490 (6th

Cir. 2006). In SunDance, the EEOC alleged that the employer’s offer of severance pay not otherwise

owed to discharged employees, in exchange for promises not to sue or file administrative charges,

violated the anti-retaliation provisions of various federal equal employment opportunity statutes.



                                                  10
Lockett v. Marsh
No. 08-3413

Id. at 492. While we observed that we had previously expressed approval of a rule that a waiver of

the right to file a charge with the EEOC is void as against public policy, we declined to rule on the

enforceability of the promise not to sue in SunDance. Id. at 499 (citing EEOC v. Frank’s Nursery

& Crafts, Inc., 177 F.3d 448, 456 (6th Cir. 1999)). Instead, we held that whether or not the promise

not to sue was enforceable, the employees had not been deprived of anything by the mere offer of

severance pay conditioned on a promise not to sue:

         Those who choose to accept it are better off, by receiving a benefit that was not “part
         and parcel of the employment relationship”. . . . Those employees who reject the
         agreement obviously do not give up any rights. And, as we have noted above,
         employees may, if they wish, accept the agreement and argue later that parts of it may
         be unenforceable under existing or expanded precedent. Under these circumstances,
         simply offering the Agreement is not facially discriminatory.

Id. at 501.

         The same reasoning defeats Lockett’s claim of wrongful denial of benefits. Marsh had no

duty to offer the enhanced severance package. Even if the Waiver was against public policy, it was

not illegal for Marsh to condition the payment of severance benefits, not otherwise owed, on the

signing of the Waiver. The Waiver itself only required the participant to agree to the Waiver “to the

extent consistent with applicable law.” The Waiver also contained a severability provision, which

provided that a determination that any clause was unenforceable would not affect the enforceability

of the remainder of the agreement. The legality of the Waiver could have been challenged after the

Waiver was signed. The district court correctly concluded on this record that Lockett failed to

present evidence that she was entitled to benefits under the Plan, which is a required showing under

§ 502.


                                                   11
Lockett v. Marsh
No. 08-3413

       Lockett also contends that the evidence supports an interference claim under ERISA § 510,

29 U.S.C. § 1140. Section 510 makes it “unlawful for any person to . . . discriminate against a

participant or beneficiary for exercising any right to which he is entitled under the provisions of an

employee benefit plan . . . or for the purpose of interfering with the attainment of any right to which

such participant may become entitled under the plan . . . .” 29 U.S.C. § 1140. Section 510 offers

protection against interference with the attainment of a right under ERISA. Coomer v. Bethesda

Hosp., Inc., 370 F.3d 499, 506 (6th Cir. 2004). To establish a violation of § 1140, Lockett was

required to demonstrate that Marsh had “a specific intent to violate ERISA through either direct or

circumstantial evidence.” Schweitzer v. Teamster Local 100, 413 F.3d 533, 537 (6th Cir. 2005). In

the absence of direct evidence, Lockett could make out a prima facie case by showing the existence

of (1) prohibited employer conduct (2) taken for the purpose of interfering (3) with the attainment

of any right to which the employee was entitled. Id.

       On de novo review we conclude that the district court properly found that Lockett’s § 510

interference claim failed because all employees were offered the same Plan, and because Lockett did

not produce any evidence to indicate that Marsh had a specific intent to violate her rights under

ERISA.

       C. DISCRIMINATION CLAIMS

       The third issue raised in this appeal is whether the district court erred in granting summary

judgment in favor of Defendants on Lockett’s state law discrimination claims. Lockett contends that

the district court ignored certain favorable evidence and failed to make all reasonable inferences in



                                                  12
Lockett v. Marsh
No. 08-3413

her favor. She contends that she presented sufficient evidence to create issues of material fact for

trial as to whether her demotion and/or her termination were the result of illegal discrimination based

on her race, gender, and/or her age.

       Lockett brought her race, gender, and age3 discrimination claims pursuant to Ohio Revised

Code § 4112.02.4 In evaluating discrimination claims under Chapter 4112, Ohio courts look to

federal case law interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and

apply the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden- shifting framework.

Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 421 N.E. 2d



       3
         Defendants contend that Lockett’s age discrimination claims are time-barred and subject to
dismissal because they were not brought within 180 days of the alleged discriminatory demotion and
termination as required by Ohio Revised Code § 4112.02(N). Dunn v. Medina Gen. Hosp., 917 F.
Supp. 1185, 1192 (N.D. Ohio 1996); Vickers v. Wren Indus., Inc., No. Civ.A. 20914, 2005 WL
1685101, at *3 (Ohio Ct. App. July 8, 2005). Lockett contends that her complaint, which refers
generally to Chapter 4112, should be liberally construed to accomplish the purposes of Chapter 4112,
and that it should be deemed timely pursuant § 4112.14, which is governed by a six-year limitations
period. See Ohio Rev. Code § 4112.14; Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 518 (6th
Cir. 2001); Ferraro v. B.F. Goodrich Co., 777 N.E. 2d 282, 291 (Ohio Ct. App. 2002) (applying six-
year limitations period where complaint referred to Chapter 4112 generally). The timeliness of
Lockett’s age discrimination claim was not addressed by the district court. Because we conclude that
Lockett has failed in any event to establish a claim of age discrimination, we need not address
Defendant’s alternative argument that her age discrimination claim is time-barred.
       4
           Under Ohio law it is an unlawful discriminatory practice:

       For any employer, because of the race, color, religion, sex, military status, national
       origin, disability, age, or ancestry of any person, to discharge without just cause, to
       refuse to hire, or otherwise to discriminate against that person with respect to hire,
       tenure, terms, conditions, or privileges of employment, or any matter directly or
       indirectly related to employment.

Ohio Rev. Code § 4112.02(A).

                                                  13
Lockett v. Marsh
No. 08-3413

128, 131 (Ohio 1981). Under the McDonnell Douglas burden-shifting framework “[t]he burden is

first on the plaintiff to demonstrate a prima facie case of [] discrimination; it then shifts to the

employer to offer a legitimate, non-discriminatory explanation for its actions; finally, the burden

shifts back to the plaintiff to show pretext-i.e. that the employer's explanation was fabricated to

conceal an illegal motive.” Chen v. Dow Chem. Co., No. 08-1597, — F.3d —, 2009 WL 2851351

(6th Cir. Sept. 8, 2009).

       To establish a prima facie case of race, gender, or age discrimination based on wrongful

demotion or termination, Lockett was required to demonstrate that (1) she is a member of a protected

class,5 (2) she was subjected to an adverse employment action, (3) she was qualified, and (4) she was

replaced by someone outside of the protected class. Geiger v. Tower Auto., 579 F.3d 614, 622 (6th

Cir. 2009) (age discrimination). “If the termination arises as part of a work force reduction, this

court has modified the fourth element to require the plaintiff to provide ‘additional direct,

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

for discharge for impermissible reasons&” Id. at 623 (quoting Barnes v. GenCorp, 896 F.2d 1457,

1465 (6th Cir. 1990)); see also Campbell v. PMI Food Equip. Group, Inc., 509 F.3d 776, 785-86 (6th

Cir. 2007) (same). Eliminating a single job is sufficient to constitute a legitimate reduction in force.

See Barnes, 896 F.2d at 1465 ( a RIF “occurs when business considerations cause an employer to

eliminate one or more positions”). “The ultimate question in every employment discrimination case



        5
         For an age discrimination claim, a plaintiff is a member of the protected class if she was at
least forty years old at the time of the alleged discrimination. Ohio Rev. Code § 4122.14; Bush v.
Dictaphone Corp., 161 F.3d 363, 368 (6th Cir. 1998).

                                                  14
Lockett v. Marsh
No. 08-3413

involving a claim of disparate treatment is whether the plaintiff was the victim of intentional

discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000).



       1. Discriminatory Demotion Claim

       The district court found that Lockett satisfied the first three prongs of her prima facie case

of discriminatory demotion. She is an African-American woman over the age of forty, her

reassignment or demotion to the position of Office Administrator qualified as an adverse

employment action,6 and she was qualified for her position as Chief Administrative Officer.

However, the district court found that Lockett failed to satisfy the fourth prong of her prima facie

case because she was not replaced by Long, and because she did not produce additional direct,

circumstantial, or statistical evidence tending to indicate that she was singled out for demotion for

impermissible reasons.7

       Lockett challenges both of these conclusions on appeal. She contends that she was replaced

by Long, and that, even if she was not replaced, she presented sufficient additional evidence to create

an issue of fact as to whether she was demoted for impermissible reasons.



       6
         The record shows that Lockett’s previous position as Chief Administrative Officer or as
Regional Human Resources Manager in the Cleveland office was eliminated, and that she was
reassigned to the position of Administrative Officer for Ohio and Kentucky. Lockett has presented
sufficient evidence from which a reasonable jury could conclude that the reassignment, which carried
less responsibility and less opportunity for compensation and growth, was a demotion. Accordingly,
for purposes of this opinion we will characterize her reassignment as a demotion.
       7
        Because Lockett relied on the same evidence for meeting the fourth prong of the prima facie
case and for establishing pretext, the district court merged the two analyses.

                                                  15
Lockett v. Marsh
No. 08-3413

       “A person is not considered replaced when his duties are absorbed by another person ‘or

when the work is redistributed among other existing employees already performing related work.’”

Geiger, 579 F.3d at 623 (quoting Barnes, 896 F.2d at 1465). In Geiger we found that the plaintiff

had not been replaced because his position at one facility was consolidated with a comparable

position at a second facility, and the person selected for the consolidated position was performing

the plaintiff’s former duties in addition to her own former duties. Id.

       Soon after Long was hired in May of 2001, many of Lockett’s human resources

responsibilities were transitioned over to him. Human resources managers who had previously

reported to Lockett began reporting to Long. When Corsetti assumed the role as head of Marsh’s

Chicago office in the fall of 2001, it was her understanding that Long was the Regional Human

Resources Manager. Accordingly, when Lockett’s Chief Administrative Officer position was

eliminated in January of 2003, Long merely assumed Lockett’s remaining human resources

responsibilities while continuing to perform his own. On this record, the district court correctly

concluded that there was no evidence to support Lockett’s contention that she was replaced by Long.

       Because this is a work force reduction case, the evidence must be sufficiently probative to

allow a fact-finder to believe that Defendants intentionally discriminated against Lockett because

of her race, gender or age. See Geiger, 579 F.3d at 624 (citing Gragg v. Somerset Tech. Coll., 373

F.3d 763, 767-68 (6th Cir. 2004)).

       Lockett contends that she presented sufficient additional evidence to support her contention

that Marsh singled her out for demotion for impermissible reasons, including her superior work



                                                16
Lockett v. Marsh
No. 08-3413

performance, her engagement in protected activity, and a long history of racial and gender animus

in the Cleveland office.

        Lockett’s evidence of her superior performance does not suggest discrimination because

Corsetti did not reassign Lockett on the basis of her performance. Although Lockett continued to

hold the title of Regional Human Resources Manager after Long was hired, she was simultaneously

referred to on organizational charts as Chief Administrative Officer, and her actual work was not

limited to human resources matters. Lockett’s role in the Cleveland Office was unique. She was

involved in various aspects of human resources, finance, technology, and management services

organization. There was no similar position in the Marsh corporate structure. When Corsetti became

the head of Marsh’s Midwest Region in November 2002, she assessed the region to see how to make

the organization more viable in the future. Corsetti made it her goal to structure the Midwest Region

in a manner that was more consistent with the other Marsh regions. To accomplish this goal,

Corsetti eliminated Lockett’s multi-faceted position; transferred Lockett’s human resources

responsibilities to Long, the Regional Human Resources Manager; and offered Lockett a position

as the MSO Office Administrator for the Ohio and Kentucky offices. Lockett was not the only

person in the Cleveland office who was affected by Corsetti’s efforts to bring the region into

conformity with Marsh’s other regions. Corsetti also changed the roles of Kevin Youngs and Tom

Sewell, two white males, because their responsibilities did not comport with Marsh’s organizational

structure.




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No. 08-3413

       Lockett also contends that the discriminatory nature of her demotion is evidenced by the fact

that it occurred shortly after Lockett challenged discriminatory practices at Marsh in the Sirotzky

report. In July of 2002, Meathe and Corsetti asked Lockett to conduct a performance review of Sara

Sirotzky, an employee in the Chicago office who had expressed an interest in moving-up in the

corporation. Lockett interviewed Sirotzky’s subordinates, peers, and managers and prepared a

memorandum of the feedback she received and her recommendations.

       Although Meathe thought the report was well done, Brian Goshen, head of human resources

for Marsh North America, ordered that the report be destroyed because it was not professional and

objective. Goshen wanted the report to be redone, with recommendations that were objective and

business-based.

       Lockett concluded that Corsetti had been discriminating against Sirotzky on the basis of her

gender and national origin. Lockett contends that Goshen ordered her report destroyed and Corsetti

demoted her because of her allegations of discrimination.

       Whatever subjective beliefs Lockett might have had concerning Corsetti’s discriminatory

treatment of Sirotzky, those subjective beliefs did not appear in the Sirotzky report. The Sirotzky

report did not state or even suggest that Corsetti or anyone else at Marsh had discriminated against

Sirotzky. The report simply described how Sirotzky was viewed by her colleagues and suggested

that the reason that she was not embraced by her peers was because of her direct and expressive

style, which was a reflection of her Peruvian culture. The report stated that, for Sirotzky to succeed

as a sales professional, the environment would have to be “inclusive” and Sirotzky would have to



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Lockett v. Marsh
No. 08-3413

be “sensitive to the social styles that are effective with her peers.” The report indicated that there

was a disconnect between Sirotzky’s high performance rating and her failure to receive a raise or

stock options. The report did not recommend that an investigation be initiated into Sirotzky’s

treatment, or that anyone be disciplined or counseled about discriminatory behavior. Neither Goshen

nor Corsetti understood the report to be an allegation of discrimination. Lockett was never

reprimanded or disciplined in any fashion for the report. No inference can be raised from the

Sirotzky report that Corsetti’s subsequent demotion of Lockett was motivated by race, gender or age

discrimination, and Lockett has presented no other evidence to suggest that Corsetti had any gender,

racial or age animus.

       Nor does Lockett’s contention that Charles Becker had a long history of racial and gender

animus toward her suggest that Lockett’s demotion was motivated by discriminatory animus. “Any

discriminatory statements must come from decisionmakers to constitute evidence of discrimination.”

Geiger, 579 F.3d at 620-21. “Statements by nondecisionmakers, or statements by decisionmakers

unrelated to the decisional process itself [cannot] suffice to satisfy the plaintiff’s burden . . . of

demonstrating animus.” Id. (quoting Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998)).

There is no evidence that Becker had any role in the elimination of Lockett’s position as Chief

Administrative Officer. The decision to demote Lockett was a decision made by Corsetti, not by

Becker. In Johnson v. Kroger Co., 319 F.3d 858 (6th Cir. 2003), we held that the dicriminatory

comments and behavior of a manager who supervised the plaintiff, assisted in her performance

review, and consulted with the decisionmaker prior to the plaintiff’s demotion, played a significant



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No. 08-3413

role in the decisionmaking process and was sufficient to raise an issue of fact as to discriminatory

intent. Id. at 868. In contrast to Johnson, in this case there is no evidence that Becker had any ability

to influence Corsetti’s decision to eliminate the Chief Administrative Officer position. Although

Corsetti sought Becker’s approval of Lockett’s new role as Office Manager, his approval of her new

role does not suggest that he had any input into the elimination of her previous role. Moreover, none

of the statements Lockett attributes to Becker were related in any way to the decision to eliminate

her Chief Administrative Officer position. Accordingly, Becker’s remarks are not sufficient to show

discriminatory motive in Lockett’s demotion. Furthermore, as documented by the district court,

Becker’s remarks regarding “church lady” and “token” were stray remarks, and his gender-related

comments were not even directed at Lockett. None of Lockett’s factual assertions, singly or in

combination, is sufficient to meet the heightened evidentiary standard required to meet the fourth

prong of her prima facie case.

        Even if we were to assume that the evidence Lockett presented met the heightened standard

and established a prima facie case of discrimination, Lockett nevertheless has not established that

Defendants’ stated reason for her demotion was pretext. In order to establish that an employer’s

legitimate non-discriminatory reason is pretext, a plaintiff is required to show that the proffered

reason had no basis in fact, did not actually motivate the adverse action, or was insufficient to

motivate the adverse action. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 545 (6th Cir.

2008) (citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)); see




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No. 08-3413

also Chen, 2009 WL 2851351, at *5, n.4 (“Pretext is a commonsense inquiry: did the employer fire

the employee for the stated reason or not?”).

       Marsh articulated a legitimate non-discriminatory reason for Lockett’s demotion: Corsetti’s

decision to bring the Midwest region in line with the Marsh organizational structure. “As we have

oft times repeated, ‘it is inappropriate for the judiciary to substitute its judgment for that of

management.’” Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 462 (6th Cir. 2004) (quoting Smith

v. Leggett Wire Co., 220 F.3d 752, 763 (6th Cir. 2000)); see also Manofsky v. Goodyear Tire &

Rubber Co., 591 N.E.2d 752, 755-56 (Ohio Ct. App. 1990) (“As a general rule, the judiciary will not

second guess business judgments by an employer making personnel decisions.”). Lockett has not

presented any evidence to support a finding that Corsetti’s stated reason for the demotion was false,

that it did not actually motivate the demotion, or that it was not sufficient to motivate the demotion.

       2. Discriminatory Discharge Claim

       The district court found that Lockett’s termination claim, like her demotion claim, was

subject to summary judgment because Lockett failed to present additional evidence tending to show

that she was singled out for termination for impermissible reasons, or, in the alternative, because she

could not prove pretext.

       In the fall of 2004, after entering into the costly settlement of the New York civil litigation,

Marsh began efforts to reduce its expenses by reducing its workforce and restructuring its business

model. As part of this process Pat Hageman, the North America CFO, Corsetti, the head of the

Midwest Region, and Tatum, the Regional Advisor in charge of MSO functions, made the decision



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Lockett v. Marsh
No. 08-3413

to eliminate the financial function in the Cleveland Office. Lockett and two other financial analysts

in the Cleveland office were terminated.

       Lockett concedes that she was not replaced after her termination. However, she contends that

she presented sufficient additional direct, circumstantial and statistical evidence to create an issue

of fact for trial on the discriminatory basis for her discharge. She relies in part on the same evidence

she presented with respect to her demotion: her exemplary performance, the Sirotzky report, and

Becker’s discriminatory comments. This evidence fails for essentially the same reasons discussed

in relation to Lockett’s demotion. There is no evidence that the decision to eliminate the financial

function in the Cleveland office was based on performance, so Lockett’s evidence of her good

performance does not tend to show discriminatory animus. Lockett has not shown that Corsetti used

the Sirotzky report against her after her demotion. And, just as in the case of Lockett’s demotion,

Becker was not involved in the decision to eliminate the financial function or to terminate Lockett,

so Lockett’s reliance on Becker’s discriminatory statements does not help her make out her prima

facie case.

       Lockett also relies on additional evidence that subsequent to her demotion she was excluded

from various executive meetings, she was falsely accused of failing to turn in assignments, and she

became the target of a year-long effort to orchestrate her termination. Lockett contends that after her

demotion to Office Administrator, she was removed from various executive and other meetings and

kept off important committees. While Lockett worked under Meathe, she was involved in all facets

of the Cleveland office. After Corsetti restructured the Cleveland office to bring it in line with



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Lockett v. Marsh
No. 08-3413

Marsh’s corporate structure, Lockett’s involvement in company matters was more limited, and it

stands to reason that her involvement in meetings and committees would also decrease. Lockett has

not suggested that she was excluded from meetings that were necessary to her job functions. More

importantly, Lockett has not shown how her exclusions from meetings or committees evidence

discrimination on the basis of her race, gender or age.

       Lockett contends that in March of 2003, Corsetti falsely accused her of failing to timely

submit a report. The evidence reflects that Corsetti questioned Lockett about the missing report and

that Corsetti subsequently learned that Lockett had prepared the report and properly submitted it to

Joseph Tatum, the Regional Advisor, to whom Lockett reported, but that Tatum had failed to

forward it to Corsetti. There was an oversight, it was corrected, and there is no evidence that the

false accusation resulted in discipline or that it was used against Lockett in any fashion. The false

accusation is not evidence of pretext.

       Finally, Lockett contends that the reason given for her termination, the reduction in force,

was pretext, because Long’s handwritten notes dated November 10, 2003, indicate that she was

being singled out for termination long before the reduction in force was contemplated. The notes

Lockett relies on provide: “she thinks she has a terrific case & she would use our offer to prove

discrimination;” and “lets [sic] go down the performance route.” The notes appear to relate to a

discussion concerning Lockett’s first EEOC charge and whether to offer Lockett a settlement or

defend against her charge of discriminatory demotion. There is nothing in the record to suggest that

Long was involved in the decision to terminate Lockett or that his notes reflect the opinions of those



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Lockett v. Marsh
No. 08-3413

who were responsible for Lockett’s termination. See Geiger, 579 F.3d at 624 (“Rokicki’s statements

about a possible age discrimination suit still do not constitute evidence of age discrimination because

he was not the one making the hiring decision.”).

          Lockett has not come forward with sufficient evidence to show that the legitimate business

reason articulated by Marsh for her discharge, i.e., the reduction in force, including the elimination

of the entire financial unit in Cleveland, was pretext. On this record, no reasonable jury could

conclude that Lockett was the victim of intentional discrimination on the basis of her gender, race,

or age.

          D. RETALIATION CLAIM

          Lockett contends that the district court erred in granting summary judgment to Defendants

on her retaliation claim because she contends that she presented sufficient evidence that she was

demoted in retaliation for writing the Sirotzky report and that she was terminated in retaliation for

filing the EEOC charge.

          Ohio law makes it unlawful to discriminate against those who oppose any unlawful

discriminatory practice, or who make a charge, or participate in any discrimination investigation or

proceeding. Ohio Rev. Code § 4112.02(I). Ohio courts rely on federal case law and apply the

McDonnell Douglas burden-shifting framework in reviewing employment discrimination and

wrongful retaliation claims under Ohio law. Plumbers & Steamfitters Joint Apprenticeship Comm.

v. Oh. Civil Rights Comm’n, 421 N.E. 2d 128, 131-32 (Ohio 1981); Peterson v. Buckeye Steel

Casings, 729 N.E.2d 813, 821-22 (Ohio Ct. App. 1999).



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Lockett v. Marsh
No. 08-3413

       To establish a prima facie case of retaliation under Ohio law, Lockett was required to

demonstrate that:

       (1) she engaged in a protected activity, (2) the defending party was aware that the
       claimant had engaged in that activity, (3) the defending party took an adverse
       employment action against the employee, and (4) there is a causal connection
       between the protected activity and adverse action.

Greer-Burger v. Temesi, 879 N.E.2d 174, 180 (Ohio 2007). “<In order to engage in a protected

opposition activity . . . a plaintiff must make an overt stand against suspected illegal discriminatory

action.’” Coch v. Gem Indus., Inc., No. L-04-1357, 2005 WL 1414454, at *5 (Ohio Ct. App. June

17, 2005) (quoting Comiskey v. Auto. Indus. Action Group, 40 F. Supp. 2d 877, 898 (E.D. Mich.

1999)). “Vague charges of discrimination do not invoke the protection of the law.” Id. “[A] vague

charge of discrimination in an internal letter or memorandum is insufficient to constitute opposition

to an unlawful employment practice.” Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d

1304, 1313 (6th Cir. 1989) (holding that complaints about ethnocism were too vague to constitute

protected activity); see also Fox v. Eagle Distrib. Co., Inc., 510 F.3d 587, 592 (6th Cir. 2007)

(holding that the plaintiff’s statements about suing the company were not protected where they did

not specifically allege discriminatory employment practices).

       Lockett’s Sirotzky report is not protected opposition activity. The report did not take an overt

stand against suspected illegal discriminatory action; it did not even mention the term discrimination;

it did not suggest the need for an investigation into discriminatory practices; and there is no evidence

that either Goshen or Corsetti understood the report to be charging discrimination.




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Lockett v. Marsh
No. 08-3413

       Unlike the Sirotzky report, Lockett’s EEOC charge was protected activity. Nevertheless,

Lockett has not shown a casual connection between her filing of the EEOC charge and her

termination. Lockett was terminated in a December 2004 workforce reduction that had nothing to

do with the EEOC charge she filed twelve months earlier. Moreover, Lockett has not demonstrated

that the legitimate business reason articulated for her termination was a pretext for discrimination.

Finally, as noted above, Lockett has not demonstrated that the articulated basis for her demotion was

pretext. See Chen, 2009 WL 2851351, at *6 (finding no need to address whether the plaintiff

established a prima facie case of retaliation where she failed to create an issue of fact as to pretext

for her termination in connection with her discrimination claim).

       E. PUBLIC POLICY CLAIM

       Lockett’s public policy claim is based on the same facts as her retaliation claim. She alleges

that her termination contravened clear public policy concerning her right to prepare reports detailing

discrimination and her right to file charges of discrimination.

       Under Ohio law, where statutory remedies adequately protect the public policy by

discouraging the wrongful conduct, no common-law public-policy claim will be recognized. Meyer

v. United Parcel Serv., Inc., 909 N.E.2d 106, 114 (Ohio 2009). Because Ohio has a comprehensive

remedial statute for addressing retaliatory termination claims that is sufficient to protect the public

policy against retaliatory terminations, Lockett cannot maintain a separate common-law public-

policy claim. Moreover, even if such a claim were cognizable, it fails for the same reason as




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Lockett v. Marsh
No. 08-3413

Lockett’s underlying retaliation claim. See Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 568-69

(6th Cir. 2003).

       F. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM

       Ohio recognizes a claim for intentional infliction of emotional distress. Under Ohio law,

“<[o]ne who by extreme and outrageous conduct intentionally or recklessly causes serious emotional

distress to another is subject to liability for such emotional distress, and if bodily harm to the other

results from it, for such bodily harm.’” Stockdale v. Baba, 795 N.E.2d 727, 735 (Ohio Ct. App.

2003) (quoting Yeager v. Local Union 20, 453 N.E.2d 666, syllabus (Ohio 1983)). “[T]he wrongful

interference or termination of an employment relationship may be so extreme and outrageous as to

constitute the egregious conduct necessary to support the tort of intentional infliction of emotional

distress.” Yungkau v. Dean Witter Reynolds, Inc., 628 F. Supp. 23, 25 (S.D. Ohio 1985). However,

“an employee’s termination, even if based upon discrimination, does not rise to the level of ‘extreme

and outrageous conduct’ without proof of something more.” Godfredson v. Hess & Clark, Inc., 173

F.3d 365, 376 (6th Cir. 1999).

       The evidence regarding the circumstances of Lockett’s demotion and termination are not so

“extreme and outrageous” as to support an intentional infliction of emotional distress claim.

                                        II. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in

favor of Defendants on all counts of Plaintiff’s complaint.




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No. 08-3413




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