Alojz KURINCIC, Plaintiff-Appellant, v. STEIN, INC., Defendant-Appellee, 30 F. App'x 420

OPINION GILMAN, Circuit Judge. Alojz Kurincie brought, suit in state court against Stein Inc., his former employer. He alleged that his termination from employment violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and Ohio’s general employment discrimination statute, Ohio Revised Code § 4112. In addition, Kurincic sued Stein for promissory estoppel, wrongful discharge in violation of Ohio public policy, and conversion. After removing the case to the appropriate federal district court. Stein moved for

summary judgment. The district court granted

summary judgment to Stein on Kurincie’s age-discrimination, promissory estoppel, and public policy claims, and remanded the conversion claim to state court. For all of the reasons set forth below, we AFFIRM the judgment of the district court. I. BACKGROUND A. Factual background This case arises from Kurincic’s termination of employment in 1998. Kurineic had worked as a mechanic at Stein, which performs slag removal services for various Ohio steel mills. Stein discharged Kurincic after he allegedly submitted a time sheet that falsely reported his attendance at a workplace safety meeting.

The safety meeting was held on April 8, 1998. Edward Konopka, a shift supervisor at Stein, saw Kurineic sign the meeting’s attendance sheet and then leave the meeting room 15 minutes before the meeting began. He never saw Kurineic return to the meeting room. Konopka later collected Kurincic’s time sheet. He noticed that the time sheet reported that Kurineic had spent 30 minutes of work time attending the meeting. Because the payroll department used the time sheets to determine pay, Konopka suspected Kurineic of falsely claiming compensation to which he was not entitled.

He subsequently informed Mark Huscroft, a superintendent at Stein, of his suspicion. Huscroft commenced an investigation shortly thereafter. First, Huscroft compared Kurincic’s time sheet with Kurincic’s time-clock card, which showed that Kurineic had clocked out ten minutes before the meeting began. He next met with four employees who had attended the safety meeting, all of whom stated that Kurineic was not in attendance. Huscroft then confronted Kurineic. Kurineic initially told Huscroft that he had attended the meeting.

But when presented with his time-clock card and the statements of his fellow employees, Kurineic acknowledged that he had not attended. He attempted to explain his absence by stating that he became ill shortly after signing the attendance sheet and thus had to leave the meeting room. Kurineic said that the illness eventually subsided, but only after the end of the meeting. Rejecting this explanation. Huscroft discharged Kurineic for theft. B. Procedural background Following his discharge, Kurineic sued Stein in state court.

He alleged that Stein had discharged him in violation of the ADEA and Ohio Revised Code § 4112. Kurineic did not specify how his discharge violated § 4112, a statute that prohibits employment discrimination on the basis of race, color, religion, sex, national origin, disability, age, or ancestry. His complaint stated, however, that he was 55 years-old at the time of his discharge and that his national origin is Slovenian. Kurineic also sued Stein for promissory estoppel.

He alleged that Stein had promised to discharge him only for just cause, that he had relied on the promise, and that Stein nevertheless discharged him without just cause. Another of Kurincic’s claims was for wrongful discharge based on Ohio public policy. According to Kurineic, Ohio public policy prohibits an employer from discharging an employee on the basis of age or national origin. Kurineic alleged that Stein terminated his employment for both reasons. Finally, Kurineic asserted a claim for conversion, claiming that a Stein employee removed the personal items that he had kept in his work locker.

The employee allegedly converted Kurincic’s property at Stein’s request. Based on the federal question presented by Kurincic’s ADEA claim, Stein removed the case to the United States District Court for the Northern District of Ohio. Stein then filed a motion for

summary judgment, arguing that Kurincic’s claims either lacked evidentiary support or were legally barred. The district court granted Stein’s motion with regard to Kurincie’s age-discrimination, promissory estoppel, and public policy claims, but remanded the conversion claim to state court. In addition, the district court concluded that Stein had not pled a claim of national-origin discrimination. Kurincic subsequently filed this timely appeal. He contends that the district court erred in granting

summary judgment to Stein on his age-discrimination and promissory estoppel claims, and that the district court erroneously concluded that he had not pled a claim of national-origin discrimination. II. ANALYSIS A. Standard of review We review de novo the district court’s grant of

summary judgment. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000).

Summary judgment is proper where there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). In deciding a motion for

summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The judge is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial exists only when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505. B. Stein was entitled to

summary judgment on Kurincic’s age-discrimination claims Kurincic argues that the district court erred in granting

summary judgment to Stein on his age-discrimination claims. We find no merit to this argument. Both the ADEA and Ohio Revised Code § 4112 prohibit an employer from discharging an employee on the basis of the employee’s age. 29 U.S.C. § 623(a); Ohio Rev.Code § 4112.02(A). An employee may establish a claim under either statute by offering direct or indirect evidence of age discrimination. Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir.1997) (setting forth the manner in which a plaintiff may prove unlawful discrimination under the ADEA); Bucher v.

Sibcy Cline, Inc., 137 Ohio App.3d 230, 738 N.E.2d 435, 442 (Ohio Ct.App.2000) (stating that the standards governing ADEA claims also apply to claims under Ohio Revised Code § 4112). Direct evidence of discrimination is “that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir.1999). Indirect evidence of discrimination, on the other hand, permits the inference that an employer acted with discriminatory animus. Kline, 128 F.3d at 348.

We first consider whether Kurincic offered direct evidence of age discrimination. Kurincic argues that his affidavit contained direct evidence of Stein’s discriminatory animus. In his affidavit, Kurincic stated that he “was informed by Dan, a co-worker and personal friend of Mark Huscroft, that Huscroft wanted to get rid of old employees .... ” But the statement by “Dan” is inadmissible hearsay. Hearsay is defined as an out-of-court statement offered for the truth of the matter asserted. Fed. R.Evid. 801(c).

The statement by Dan to Kurincic is hearsay because it was offered for the truth of the matter asserted; namely, that Huscroft in fact wanted to “get rid of old employees.” Although the statement allegedly attributable to Hus-croft as a supervisor might not be considered hearsay if it had been said directly to the testifying witness. Fed.R.Evid. 801(d)(2), it became hearsay when repeated through Dan to Kurincic. Kurincic thus failed to offer any direct evidence of discrimination. We must therefore decide whether Kurincic offered sufficient indirect evidence to permit an inference of age discrimination.

A three-step framework guides the analysis of age-discrimination claims based upon indirect evidence. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th Cir.1998) (explaining the burden-shifting analysis for ADEA claims). This framework first requires an employee to establish a prima facie case of age discrimination. Id. If the employee meets this burden, the employer may respond by offering a legitimate, nondiscriminatory reason for the adverse employment action at issue. Id.

The employee then has the burden of rebutting this proffered reason by proving that it was a pretext designed to mask age discrimination. Id. In the present case, the district court held that, even assuming Kurincic offered sufficient evidence to establish a prima facie case of age discrimination, he nevertheless failed to show that Stein’s legitimate, nondiscriminatory reason for his discharge—his alleged thefb-Avas pretextual. We agree with the district court’s conclusion. This court has adopted an “honest belief’ rule with regard to an employer’s proffered reason for discharging an employee. Smith v.

Chrysler Corp., 155 F.3d 799, 806-07 (6th Cir.1998). Under this rule, so long as an employer honestly believed in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be mistaken or incorrect. Id. at 806. An employer has an honest belief in its reason for discharging an employee when the employer reasonably relief “on the particularized facts that were before it at the time the decision was made.” Id. at 807.

The evidence in this case supports Stein’s claim that it honestly believed in its proffered nondiscriminatory reason for discharging Kurincic. Stein discharged Kurincic only after taking reasonable steps to confirm that he did not attend the safety meeting despite the contrary notation on his time sheet. Thus, in choosing to discharge Kurincic for theft, Stein made a “reasonably informed and considered decision.” Id. Kurincic, however, insists that Stein could not have reasonably believed that he committed theft. First, Kurincic denies that he ever intended to submit his false time sheet.

He states that he completed his time sheet before the meeting, but Konopka collected the sheet “prematurely.” Kurincic offers no evidence, however, showing that Stein had any reason to believe that his túne sheet was collected in error. He did not so state when confronted by Huscroft. Instead, Kurincic initially insisted that he had actually attended the meeting, and admitted otherwise only when presented with evidence proving that he was not in attendance.

This, in our opinion, refutes the dissent’s position that a genuine issue of material fact exists as to whether Stein had a reasonable belief that it possessed a valid basis for discharging Kurincic. We believe that any person in Kurincic’s situation who had not truly intended to request unearned pay would have immediately pointed out that the failure to correct his túne sheet was an oversight. Instead, when first confronted by Huscroft, Kurincic falsely insisted that he had in fact attended the meeting.

Such evasive conduct, in our view, makes his subsequent claim of innocence so unbelievable that all reasonable jurors would conclude that Stein honestly believed that Kurincic sought pay that he had not earned. Second, Kurincic contends that, even if he did intentionally submit a false time sheet, he did not commit theft because he never received any payment for attending the meeting. He offers no reasonable explanation, however, as to why Stein had to delay his discharge until after he received compensation based on his false time sheet.

Attempted theft is sufficient grounds for termination under Stein’s policy against employee theft. Cf. Ohio Rev.Code § 29I3.01(K) (defining a “theft offense” for purposes of Ohio law as including both the commission and the attempt to commit various criminal offenses). Moreover, even if Stein had incorrectly determined that attempted theft warranted termination under its policy, the honest belief rule prevents Kurincic from using the alleged mistake to prove that Stein’s proffered reason for his discharge was simply a pretext to mask age discrimination. Smith, 155 F.3d at 806.

Finally, Kurincic maintains that Stein’s contention that it discharged him for theft is belied by the conclusion of the Ohio Unemployment Compensation Review Commission (the Commission) that he was discharged without just cause. But the Commission’s determination was made more than three months after Stein discharged Kurincic. Under this circuit’s honest belief rule, Kurincic cannot show that Stein’s proffered reason for his discharge was pretextual simply by offering evidence that Stem’s decision was later found incorrect.

The probative value of the Commission’s determination, moreover, is limited by the fact that Stein presented no evidence at the hearing on Kurincic’s unemployment claim. Based on the above factors, we conclude that Kurincic failed to offer sufficient direct or indirect evidence of age discrimination. We therefore hold that the district court did not err in granting Stein’s motion for

summary judgment on Kurincic’s federal and state age-discrimination claims. C. Stein was entitled to

summary judgment on Kurincic’s promissory estoppel claim Kurincic next contends that the district court erred in granting

summary judgment to Stein on his promissory estoppel claim. We disagree. In suing for promissory estoppel. Kurincic alleged that he was promised by one of Stein’s managers that he would be discharged only for just cause. The collective bargaining agreement (CBA) governing Kurincic’s employment with Stein, however, already provided that he could be discharged only upon a determination of just cause. He must thus base any wrongful discharge claim on the “just cause” provision in the CBA, not on an oral promise made outside of the collective bargaining process. Fox v.

Parker Hannifin Corp., 914 F.2d 795, 801 (6th Cir.1990) (holding that a bargaining unit employee could not base a promissory estoppel claim on a promise made other than in the CBA). But even if we were to recast Kurincic’s promissory estoppel claim as alleging a breach of the CBA, it would do him no good. A claim for the breach of a CBA may only be brought under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (stating that § 301 displaces any state cause of action for breach of a CBA).

To sue under § 301, Kurincie would have had to bring suit within six months of the alleged breach of the CBA. Fox, 914 F.2d at 803 (holding that § 301 actions brought by individual employees are governed by a six-month statute of limitations). He did not file the present action, however, until more than one year after the termination of his employment. Accordingly, we conclude that the district court did not err in granting Stein’s motion for

summary judgment on Kurincic’s promissory estoppel claim. D. Stein was entitled to

summary judgment on Kurincic’s national-origin discrimination claim Kurincie insists that he asserted a claim for national-origin discrimination in his complaint. He further argues that he offered sufficient evidence to reach the jury on this claim. We agree that Kurincic pled a national-origin discrimination claim in his complaint. The first count in Kurincic’s complaint both states his national origin and alleges that his discharge violated Ohio Revised Code § 4112, a statute that prohibits, among other things, national-origin discrimination.

Under the notice pleading standard of Rule 8 of the Federal Rules of Civil Procedure, the first count of the complaint therefore asserts a claim of national-origin discrimination under Ohio law. Fed.R.Civ.P. 8(a) (stating that a complaint must set forth “a short and plain statement” of a claim for relief); Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (“[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim.”).

The district court thus erred in concluding that Kurincic had failed to properly plead a national-origin discrimination claim. Nevertheless, our review of the record convinces us that Kurincie failed to offer sufficient evidence of national-origin discrimination to withstand

summary judgment. As with his age-discrimination claims, Kurincie may establish a national-origin discrimination claim by offering either direct evidence of discrimination or indirect evidence establishing an inference of discrimination. Shannahan v. B.F. Goodrich Aerospace Landing Gear Div., No. 98-3104, 181 F.3d 103, 1999 WL 357823, at *2 (6th Cir.

May 26, 1999) (unpublished table decision) (stating that an employee can prove national-origin discrimination under Title VII of the 1964 Civil Rights Act by offering either direct or indirect evidence of discrimination); Bucher, 738 N.E.2d at 442 (stating that Ohio courts analyze claims under Title VII and Ohio Revised Code § 4112 under federal case law interpreting Title VII). Kurincic offered neither type of evidence. First, Kurincie failed to timely present any direct evidence of national-origin discrimination.

Although Kurincie stated in a late-filed affidavit that Huscroft called him a “DP,” a slang term for “displaced person,” Kurincie earlier testified during his deposition that he never heard Huscroft make any derogatory remarks about his national origin. “A party may not create a factual issue by filing an affidavit, after a motion for

summary judgment has been made, which contradicts ... earlier deposition testimony.” Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir.1986). Second, Kurincie failed to offer evidence sufficient to establish an inference of national-origin discrimination. As previously explained, Kurincie offered no evidence showing that Stein lacked an honest belief in its legitimate, nondiscriminatory reason for his discharge. He thus could not prove that Stein’s proffered reason was a pretext designed to mask national-origin discrimination. Based on the above, we hold that Stein was entitled to

summary judgment on Kurincic’s national-origin discrimination claim. E. Stein is not entitled to sanctions under Rule 38 of the Federal Rules of Appellate Procedure The final issue presented for our consideration is Stein’s motion for sanctions under Rule 38 of the Federal Rules of Appellate Procedure. Stein strenuously argues that Kurincic’s appeal is frivolous.

Under Rule 38, a frivolous appeal may justify the imposition of sanctions: If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee. Fed. RApp. P. 38. Because of the risk that Rule 38 sanctions will dissuade litigants from bringing meritorious appeals, a decision of whether to impose such sanctions is generally a “difficult choice.” Wilton Corp. v.

Ashland Castings Corp., 188 F.3d 670, 677 (6th Cir.1999) (recognizing the risk that the imposition of sanctions will chill appeals that involve “serious, controversial, doubtful, or even novel questions”). Rule 38 sanctions are therefore imposed in only rare circumstances, most often “where there is some evidence of intentional misconduct, such as pursuit of an appeal in bad faith or for purposes of harassment, delay or other improper purposes.” Bogglid v. Kenner Prods., Div. of CPG Prods. Corp., 853 F.2d 465, 470 (6th Cir.1988).

An appeal may also warrant sanctions if it “essentially had no reasonable expectation of altering the district court’s judgment based on law or fact.” Wilton Corp., 188 F.3d at 677 (imposing sanctions after concluding that the appeal was “wholly without merit”). In the present case, Stein contends in its brief that Kurincic’s appeal “screams” for sanctions because it was brought in bad faith and is completely devoid of merit. We disagree. First, the record contains no compelling evidence of bad faith on the part of Kurincic or his counsel in bringing this appeal.

Second, as shown by our preceding analysis, the arguments presented in this appeal are not so implausible as to be considered frivolous. We therefore deny Stein’s request for sanctions under Rule 38. III. CONCLUSION For all of the reasons set forth above, we AFFIRM the judgment of the district court.