MARK DROGELL, Appellant v. WESTFIELD GROUP, Appellee
C.A. No. 11CA0011-M
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF MEDINA, OHIO
December 2, 2013
2013-Ohio-5262
BELFANCE, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 09CIV0630
BELFANCE, Judge.
{¶1} Mark Drogell appeals the award of summary judgment from Medina County Court of Common Pleas. For the reasons set forth below, we affirm.
I.
{¶2} Mr. Drogell worked for Ohio Farmers Insurance Company for approximately 34 years. In 1997, Mr. Drogell was diagnosed with multiple sclerosis. In 2005, after being denied a promotion, Mr. Drogell went on short-term disability leave and eventually retired early in 2008. Prior to his retirement, Mr. Drogell filed a complaint against Westfield Group but eventually dismissed Westfield.
{¶3} Mr. Drogell filed a second complaint against Westfield,1 alleging that he had been a victim of disability and age discrimination, that he had been constructively discharged in
{¶4} The trial court determined that the deposition of Mr. Vanover was untimely filed because it had only granted Mr. Drogell an extension of time to file his motion in opposition and not an extension of time to file evidence in support of that motion, and the trial court declined to consider Mr. Vanover’s deposition. The trial court originally awarded partial summary judgment to Westfield, but, two months later, the trial court sua sponte reconsidered its decision and awarded Westfield Group summary judgment on all of Mr. Drogell’s claims.
{¶5} Mr. Drogell appealed and raised a single assignment of error for our consideration. However, his attorney withdrew, and Mr. Drogell was granted leave to file a supplemental brief once he obtained new counsel, which he did. Mr. Drogell’s supplemental brief raises one assignment of error. For ease of discussion, we address Mr. Drogell’s supplemental assignment of error first.
II.
SUPPLEMENTAL ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DISALLOWED THE DEPOSITION TESTIMONY OF KEITH E. VANOVER WHEN IT CLEARLY CONTRADICTED THE TESTIMONY OF DR. TIMOTHY J.
{¶6} Mr. Drogell argues that the trial court abused its discretion when it declined to consider the deposition of Mr. Vanover. While we agree that, under the circumstances, the trial court should not have excluded the deposition based on
{¶7} The magistrate set September 27, 2010, as the date for the non-oral hearing on Westfield’s motion for summary judgment and ordered that Mr. Drogell’s brief and evidence should be filed by September 24, 2010. Mr. Drogell moved for an extension until September 27, 2010, to file his “response[,]” which the trial court granted. On September 27, 2010, Mr. Drogell filed his motion in opposition of summary judgment, an affidavit signed by him, and a “rough draft” of Mr. Vanover’s deposition that was not notarized. The trial court declined to consider Mr. Vanover’s deposition because it determined that the deposition was untimely filed pursuant to
{¶8} We find the trial court’s interpretation of its order troubling. Under the circumstances, the order was ambiguous as it mirrored the request in Mr. Drogell’s motion for an extension of time to file his “response[.]” A “response” to a motion for summary judgment could theoretically include both the brief and the
{¶9} Nevertheless, we cannot sustain Mr. Drogell’s supplemental assignment of error. The document Mr. Drogell filed that purports to be Mr. Vanover’s deposition is not certified by the officer who transcribed the deposition. See
{¶10} Thus, we cannot conclude that the trial court’s refusal to consider Mr. Vanover’s deposition constitutes reversible error in this case. See
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE WHEN [A] GENUINE ISSUE OF MATERIAL FACT EXISTED REGARDING APPELLANT’S CLAIMS.
{¶11} Mr. Drogell argues that the trial court erred in granting summary judgment in favor of Westfield. We disagree.
{¶12} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court,
{¶13} Pursuant to
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a summary judgment motion, the movant bears the initial burden of demonstrating that there are no genuine issues of material fact concerning an essential element of the opponent’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party “‘must set forth specific facts showing that there is a genuine issue for trial.’” Id. at 293, quoting
{¶14} We initially note that Mr. Drogell does not challenge the trial court’s award of summary judgment on his claim of violation of public policy, and, therefore, we do not address it. See
Disability Discrimination
{¶15} Mr. Drogell alleged in his complaint that Westfield had engaged in disability discrimination in violation of
{¶16} The issue in this case involves Mr. Drogell’s challenge to the trial court’s determination that there was no material dispute of fact as to whether he was qualified for his position with or without reasonable accommodation. As noted above, Mr. Drogell was diagnosed with MS in 1997. He continued to work at Westfield until taking early retirement in 2008. During his deposition, Mr. Drogell stated that in 2005, he applied for short-term disability leave which began on July 11, 2005. He then applied for long-term disability which commenced in January 2006. In July 2005, Mr. Drogell applied for SSDI. In addition, he applied for an early distribution from his 401(k). In connection with his application for the early 401(k) distribution, Mr. Drogell stated that he agreed that as of July 11, 2005, he had severe limitations in functional capacity and was incapable of minimal sedentary activities. He also agreed that he was incapable of performing work of any kind indefinitely and that he was not a suitable
{¶17} Mr. Drogell argues that the trial court’s determination was incorrect, pointing to his affidavit and to the deposition of Mr. Vanover for support. However, the trial court did not consider the deposition of Mr. Vanover, and, as discussed above, given that the deposition did not comply with
{¶18} In his affidavit, Mr. Drogell averred that he can “walk, talk, see hear, dress [him]self, feed [him]self, and drive an automobile.” He also averred in his affidavit that “the information contained in the [Social Security Disability] application states that [he is] completely
Age Discrimination
{¶20}
Absent direct evidence of age discrimination, in order to establish a prima facie case of a violation of
R.C. 4112.14(A) in an employment discharge action, a plaintiff-employee must demonstrate that he or she (1) was a member of the statutorily protected class, (2) was discharged, (3) was qualified for the position, and (4) was replaced by, or the discharge permitted the retention of, a person of substantially younger age.
Coryell, 101 Ohio St.3d 175, 2004-Ohio-723, at paragraph one of the syllabus. “This test is a descendant of McDonnell Douglas Corp. v. Green[], 411 U.S. 792 * * * [(1973)], in which the United States Supreme Court promulgated an analytical framework for claims of race discrimination.” Id. at ¶ 9.
{¶21} With respect to his age discrimination claim, Mr. Drogell did not identify any direct evidence of discriminatory intent based upon his age in his complaint thereby necessitating employment of the McDonnell Douglas burden-shifting framework. See Coryell at ¶ 9. As with his disability discrimination claim, the trial court determined that Westfield was entitled to summary judgment because there was no dispute of fact as to whether Mr. Drogell was qualified for his position. The trial court again relied upon the deposition testimony detailed above. In his
Intentional Infliction of Emotional Distress
{¶22} Mr. Drogell argues that the trial court erred in granting summary judgment to Westfield on his claim for intentional infliction of emotional distress because “[Westfield]’s constructive discharge of [Mr. Drogell] came without any warning * * *.” “In a case for intentional infliction of emotional distress, a plaintiff must prove (1) that the defendant intended to cause the plaintiff serious emotional distress, (2) that the defendant’s conduct was extreme and outrageous, and (3) that the defendant’s conduct was the proximate cause of plaintiff’s serious emotional distress.” Phung v. Waste Mgt., Inc., 71 Ohio St.3d 408, 410 (1994).
* * * It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.
Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’”
Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousement, & Helpers of Am, 6 Ohio St.3d 369, 374-375 (1983) (abrogated on other grounds by Welling v. Weinfeld, 113 Ohio St.3d 464, 2007-Ohio-2451), quoting Restatement of the Law 2d, Torts, Section 46, comment d (1965).
{¶23} In its motion for summary judgment, Westfield argued that there was no dispute of material fact as to whether it had engaged in extreme and outrageous conduct against Mr. Drogell and that he had not pointed to any evidence of extreme and outrageous conduct. Westfield further pointed to the accommodations it provided Mr. Drogell as evidence that its conduct toward Mr. Drogell was appropriate. These accommodations included providing him with a special chair, moving his workstation closer to the restroom, providing him with a note taking device and transcripts of meetings with his supervisor, and allowing Mr. Drogell to work from home. Westfield also pointed to Mr. Drogell’s concession in his deposition that he had chosen to retire early and that he had been on disability leave for three years prior to his retirement, thus suggesting that Mr. Drogell’s motive for retiring had nothing to do with extreme and outrageous conduct on Westfield’s part. Westfield essentially argued that, in light of the undisputed evidence that they accommodated Mr. Drogell’s disability and that they did not force Mr. Drogell to retire, there was no conduct by Westfield that would constitute extreme and outrageous conduct. Therefore, it argued, Mr. Drogell’s claim of intentional infliction of emotional distress must fail as a matter of law.
{¶25} Likewise in his merit brief on appeal, Mr. Drogell has not pointed to specific facts in the record that demonstrate that the trial court erred in its determination that there was an absence of a genuine dispute of material fact as to whether Westfield engaged in outrageous or egregious conduct against him. Accordingly, we overrule his assignment of error with regard to his claim of intentional infliction of emotional distress.
III.
{¶26} Mr. Drogell’s assignments of error are overruled. The Medina County Court of Common Pleas’ award of summary judgment to Westfield is affirmed.
Judgment affirmed.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J. CONCURS.
CARR, J. DISSENTING.
{¶27} I respectfully dissent. I agree with the majority’s conclusion that the trial court erred by disregarding Mr. Vanover’s deposition on the basis of
APPEARANCES:
WESLEY A. JOHNSTON, Attorney at Law, for Appellant.
MICHELLE PIERCE STRONCZER, Attorney at Law, for Appellee.