647 N.E.2d 230 | Ohio Ct. App. | 1994
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Appellant, Edwin F. Borowski, is appealing the trial court's grant of summary judgment in favor of appellee, State Chemical Manufacturing Company ("State Chemical") in case No. 66240. Borowski claims State Chemical unlawfully demoted him from his position as district sales manager to a salesman position. State Chemical subsequently appealed the trial court's denial of attorney fees under R.C.
Appellant filed a complaint with the Ohio Civil Rights Commission ("OCRC"), claiming his demotion violated Ohio age discrimination statutes. The OCRC eventually closed and dismissed the case. Then, appellant filed the complaint in this matter with the Cuyahoga County Court of Common Pleas. The complaint alleged age discrimination under R.C.
Then, appellant filed suit in the United States District Court for the Northern District of Ohio. This complaint alleged age discrimination and retaliation under Section 621 et seq., Title 29, U.S.Code. Appellant also included the common-law tort and contract claims set forth in the state lawsuit.
The federal court granted summary judgment to appellee, finding that appellant had proved a prima facie case of discrimination but produced no evidence rebutting the employer's articulated nondiscriminatory reason. See McDonnell Douglas v.Green (1973),
Subsequently, the court of common pleas granted summary judgment to appellee on all of appellant's claims.
Appellant's sole assignments of error states:
"The trial court erred in granting State Chemical's motion for summary judgment."
The same "cause of action" does not necessarily involve the same legal basis. See Rogers, supra. The test for determining whether two cases involve the same cause of action is: (1) both cases have identical facts creating the right of action and (2) the evidence necessary to sustain each action is identical.Norwood v. McDonald (1943),
The facts surrounding the alleged discriminatory demotion of appellant created the right of action in the state and federal cases. The evidence necessary to sustain a federal and a state age discrimination claim is identical. Barker v. Scovill (1983),
Appellant asserts that a state court will not grant summary judgment to the employer if the employee establishes a primafacie case under the McDonnell Douglas test. According to appellant, the state court, unlike a federal court, will not go further to examine whether the employer offered a legitimate reason for its action and whether the employee offered any evidence to show the reason was a pretext.
Appellant's assertion is incorrect. Ohio courts will grant summary judgment to the employer even if the employee establishes a prima facie case, if the employee presents no evidence to rebut the employer's legitimate nondiscriminatory reason. Hollowell v. Society Bank Trust (1992),
Appellant also argues that the federal district court only applied the McDonnell Douglas test and did not utilize the direct evidence test set out by the Ohio *642
Supreme Court in Kohmescher, supra. The direct evidence test exists in the federal system as well as the state system. SeeKohmescher,
The federal court's decision on the age discrimination claim involved the same facts and evidence, and thus the same cause of action as the state claim. The judgment of the federal court isres judicata to appellant's state law age discrimination claim. Appellee did not waive its right to assert res judicata by failing to object when the federal lawsuit was filed. There was no judgment in existence at that time which could be claimed to be res judicata. The "waiver" cases cited by appellant differ on their facts. These cases involved separate suits for different damages arising from a single cause of action. See Fox v.Althorp (1883),
We note in dicta that under the facts of this case, appellant's suit under R.C.
As a general rule, filing with the OCRC precludes a subsequent suit under R.C.
Appellee contends the proper procedure appellant should have taken was to first file the federal and state suits, and then file a charge with the OCRC. Smith, supra,
After Heller made the subject statements to appellant, appellant signed written employment contracts. The contracts stated that either party may terminate the agreement at any time. Additionally, the territories assigned to Borowski could be changed at any time by State Chemical. These express, written terms cannot be varied by prior oral statements, according to the parol evidence rule. See Rhodes v. Rhodes Industries, Inc.
(1991),
Promissory estoppel does not apply to oral statements made prior to the written contract, where the contract covers the same subject matter. See Gallant v. Toledo Public Schools
(1992),
To sustain a cause of action for intentional infliction of emotional distress, the plaintiff must present evidence of serious emotional distress that is severe and debilitating. Serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case. Paugh v. Hanks (1983),
A plaintiff claiming intentional infliction of emotional distress must also prove that the defendant's conduct was so extreme and outrageous as to go beyond the bonds of decency.Uebelacker, supra; Yeager v. Local Union 20 (1983),
The trial court had jurisdiction over the federal retaliation claim, despite appellant's failure to file a second claim for retaliation with the EEOC. See Gupta v. E. Texas State Univ.
(C.A.5, 1981),
Appellant bases his claim of retaliation on the following facts: In June 1992, Mark Fortuna, the zone manager, told appellant he had an unassigned account he was considering giving to appellant, but Fortuna had to, "wait and see how this all comes out." Fortuna stated in deposition that he was referring to how the lawsuit would come out, and also whether a new salesperson would be hired to handle the unassigned territory. Fortuna said that because of the lawsuit, he was unsure if appellant was staying with the company. Appellant had several incidents where appellee would not give him credit for sales because it was disputed whether the account belonged to another salesperson. Appellant eventually received credit for all the disputed sales. Finally, appellant stated in deposition that his immediate supervisor, Angie Merrill, was told by Fortuna and/or Charles Sundvall, the regional manager, not to help appellant with his sales because of the lawsuit. Merrill deposed that Fortuna and/or Sundvall told her appellant did not want her help.
Viewing the evidence in a light most favorable to appellant, reasonable minds can reach different conclusions as to whether appellant was retaliated against because of the lawsuit. Appellant has shown direct evidence of retaliation. SeeKohmescher v. Kroger Co., supra,
Accordingly, appellant's assignment of error is sustained as to the retaliation claim, and is otherwise overruled.
"The trial court abused its discretion as a matter of law when it denied appellant's motion to award attorney's fees for frivolous conduct without first conducting a hearing."
The trial court erred and abused its discretion by denying appellant's R.C.
Accordingly, this assignment of error is sustained.
State Chemical's first assignment of error states:
"The trial court erred when it denied appellant's motion to award attorney's fees for frivolous conduct pursuant to Ohio Revised Code §
Based on our resolution of State Chemical's third assignment of error, we need not address this first assignment of error. See App.R. 12.
State Chemical's second assignment of error states:
"The trial court erred when it denied appellant's motion for attorney's fees pursuant to Rule 11 of the Ohio Rules of Civil Procedure."
This court has held that a hearing is not required before the trial court can rule on a motion for attorney fees under Civ.R. 11. Harris v. Southwest Gen. Hosp. (1992),
The trial court's decision to deny Civ.R. 11 sanctions can only be reversed if the trial court abused its discretion.State ex rel. Fant v. Sykes (1987),
"Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. * * * The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. * * * For a willful violation of this rule an attorney may be subjected to appropriate action. * * *"
To establish a violation of Civ.R. 11, the movant must show either that the attorney knew or deliberately failed to discover that there were not good grounds to support the pleading, or that the purpose of pleading was for delay. See Weiner andKemp, supra.
In this case, State Chemical claims Borowski's attorney violated Civ.R. 11 by:
(1) Including a claim for intentional infliction of emotional distress in the complaint when the evidence did not support such a claim,
(2) Including a claim for negligent infliction of emotional distress and breach of the covenant of good faith and fair dealing, when Ohio law does not recognize these claims, and
(3) Filing a motion to strike State Chemical's reply to Borowski's response to defendant's motion for summary judgment.
There is no evidence plaintiff's attorney knew when the complaint was filed that the facts did not support the claim of emotional distress. See Weiner and Kemp, supra. The inclusion of negligent infliction of emotional distress and breach of good faith claims appears to be a negligent misinterpretation of existing law. There is nothing to show the plaintiff's attorney acted wilfully. Ceol v. Zion Indus., Inc. (1992),
Accordingly, this assignment of error is overruled.
State Chemical's appeal No. 66470 is reversed and remanded for a hearing on the motion for attorney fees pursuant to R.C.
Edwin Borowski's appeal No. 66420 is reversed and remanded as to the retaliation claim and is otherwise affirmed. *648
This cause is affirmed in part and reversed in part in case No. 66240, reversed and remanded in case No. 66470, and affirmed in case No. 66471.
Judgment accordingly.
PATTON and BLACKMON, JJ., concur.