Fayak v. Univ. Hosps.Fayak v. Univ. Hosps.
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 3, 2020
Appearances:
Stephen W. Gard and David Glenn Phillips, for appellant.
Lewis, Brisbois, Bisgaard & Smith, L.L.P., David A. Campbell and Donald G. Slezak, for appellees.
{¶ 1} Plaintiff-appellant Amanda Fayak (“Fayak“) appeals the trial court‘s decision that granted summary judgment in favor of defendants-appellees University Hospitals, et al.1 (hereinafter “the defendants“). Upon review, we affirm.
Background
{¶ 2} Fayak is a former employee of University Hospitals Police Department. She was employed from December 2013 until her discharge in June 2016 after an extended leave of absence. The employment application completed by Fayak includes a provision that reads: “I agree that any claim or lawsuits relating to my service with University Hospitals or any of its subsidiaries or affiliates must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.” The employment application was submitted with her typewritten name, which represented her electronic signature according to the application.
{¶ 3} Fayak alleges that from December 2013 through November 2014 and from March to April 2015 she was subjected to gender discrimination, disparate treatment, sexual harassment, a hostile work environment, and retaliation and that this conduct affected her ability to perform her job. Fayak also alleges that she suffered from stress and anxiety and had panic attacks. She took a medical leave of
{¶ 4} Shortly after her return to work, Fayak took a lengthy leave of absence beginning on April 23, 2015, until her eventual discharge in June 2016. Fayak does not allege any discriminatory, harassing, or retaliatory conduct occurred after April 23, 2015. Fayak submitted a form signed by her physician certifying her inability to work and indicating she would be unable to work for University Hospitals until July 1, 2015. Despite requests from University Hospitals, Fayak provided no further documentation to support her continued leave of absence. University Hospitals terminated her employment via letter on June 28, 2016, for the stated reason that Fayak was “on an unauthorized/unapproved leave since July 2, 2015” and had “not provided any further information * * * to support a continued leave of absence.”
{¶ 5} Following her discharge, Fayak filed an initial complaint on September 19, 2016, but subsequently the case was voluntarily dismissed without prejudice. See Cuyahoga C.P. No. CV-16-869216 (voluntarily dismissed May 31, 2017). On February 2, 2017, Fayak refiled this action against University Hospitals, two employees of University Hospitals, and several individual members of the University Hospitals Police Department. The individuals named as defendants in the refiled action had not been named as defendants in the previous complaint. The
{¶ 6} The defendants filed a
{¶ 7} Fayak filed a brief in opposition in which she described the conduct underlying her claims. She argued that her claims were not barred by the applicable limitations period, that her initial complaint had been filed less than six months after her termination, and that her refiled complaint was filed within the one-year
{¶ 8} In their reply brief, the defendants claimed that Fayak did not argue that her termination from employment was unlawful and that no unlawful conduct was alleged to have occurred later than April 23, 2015. Therefore, the defendants raised the argument that the original complaint was filed beyond the six-month limitations period contained in Fayak‘s employment application. The defendants further argued against each of Fayak‘s claims. Additionally, the defendants filed a motion to strike portions of Fayak‘s affidavit that was filed in support of her brief in opposition.
{¶ 9} Fayak filed a motion for leave to file a response to the defendants’ reply brief, stating in part that the defendants had asserted a new argument in their reply that was not set forth in the dispositive motion. The trial court granted this motion.
{¶ 10} On November 7, 2019, the trial court granted the defendants’ motion for summary judgment. The trial court observed that “Fayak does not dispute the validity of the limitations period, only the Defendants’ contention that her claims are untimely under [the contractual] provision.” The trial court proceeded to find that Fayak‘s claims were barred by the six-month contractual limitations period in her employment application. The trial court recognized that the defendants had first raised the issue that the original complaint that was filed was untimely in their reply
All the events that constitute [Fayak‘s] claims occurred prior to her last date of active employment on April 23, 2015, when she began her medical leave. Therefore, there is no genuine dispute of material fact that the original complaint filed on September 19, 2016 was well outside the original six-month limitation period.
* * * Although Fayak has presented evidence that her working environment caused her stress-related medical leave, she has not presented evidence that any of the events that occurred prior to April 23, 2015 was the ultimate cause of her termination.
The Defendants have provided evidence that the cause of Fayak‘s termination was because she failed to provide documentation to support her continued leave, and that in fact, her leave was unauthorized as of July 1, 2015. Fayak has not presented any evidence to demonstrate that this termination occurred for any other reason. * * *
Because there are no facts causally connecting Fayak‘s termination to any of the actions that constituted the hostile work environment or intentional infliction of emotion distress, there is no genuine dispute of material fact that the events giving rise to Fayak‘s claims all arose prior to April 23, 2015. Therefore, she would need to have filed her original suit within six months of that date at the latest to remain within the contractual limitations period. Although neither party specifically states the date of the invasion of privacy claim, it is clear from the evidence that this event occurred before her medical leave began in April 2015, and therefore is barred under the limitations period.
{¶ 11} Having found the contractual limitations period barred the action, the trial court did not address the merits of any of the claims. The trial court also deemed moot the motion to strike that had been filed by the defendants. Fayak timely filed this appeal.
{¶ 12} Appellate review of summary judgment is de novo, governed by the standards set forth in
{¶ 13} Fayak raises three assignments of error for our review. We begin with the first and second assignments of error. Under her first assignment of error, Fayak claims the trial court erred by failing to hold invalid the six-month limitations period in her employment application. Under her second assignment of error, she argues that the reasonableness of this provision is a matter for the jury to resolve.
{¶ 14} The defendants assert that Fayak did not challenge the validity, application, or reasonableness of the six-month limitations period at the trial court
{¶ 15} Arguably, Fayak has waived the challenges presented. However, we recognize that Fayak did argue in the trial court that her claims were not barred by the applicable limitations period. Also, the trial court ultimately found the limitations period in her employment application barred her claims. Therefore, we shall afford some leeway and consider whether the six-month limitations period in the employment application is enforceable against her claims.
{¶ 16} Fayak argues that defendants first raised the argument that her original complaint was not timely filed in their reply brief and that they should not be permitted to obtain summary judgment by ambush. Although Fayak contends that she filed a motion to strike the new argument on September 6, 2019, the docket reflects that she filed a “motion for leave to file a response to defendants’ reply to
{¶ 17} On appeal, Fayak challenges the validity of the shortened limitations period as applied to actions brought pursuant
{¶ 19} Fayak‘s argument against the enforcement of the shortened limitations period relies on federal case law governing claims under Title VII of the Civil Rights Act of 1964,
{¶ 20} Nonetheless, Fayak argues that the Supreme Court of Ohio has recognized that the law governing Title VII lawsuits is generally applicable to lawsuits involving alleged violations of
{¶ 21} Ohio courts have applied shortened contractual limitations periods to employment discrimination claims. See Fry at ¶ 12 and 27; Maxwell. Further, courts in other jurisdictions have held that a six-month limitations period within an employment application is not unreasonable or against public policy under state law. See Evans v. Canal St. Brewing Co. L.L.C., E.D.Mich. No. 18-cv-12631, 2019 U.S. Dist. LEXIS 57857, 15 (Apr. 4, 2019) (Michigan law); Walker v. TA Operating L.L.C., W.D.Ark. No. 4:14-cv-4055, 2016 U.S. Dist. LEXIS 49647 (Apr. 13, 2016) (Arkansas law); Thurman, 397 F.3d at 357-359 (Michigan law); Soltani v. W. & S. Life Ins. Co., 258 F.3d 1038, 1044-1045 (9th Cir.2001) (California law); Taylor v. W. & S. Life Ins. Co., 966 F.2d 1188, 1206 (7th Cir.1992) (Illinois law); Morgan v. Fed. Express Corp., 114 F.Supp.3d 434, 444 (S.D. Tex.2015) (Texas law); Vega v. Fed. Express Corp., No. 09 CIV 07637, 2011 U.S. Dist. LEXIS 111531, (S.D.N.Y. Sept. 29, 2011) (New York law); Badgett v. Fed. Express Corp., 378 F.Supp.2d 613, 623 (M.D.N.C.2005) (North Carolina law). Likewise, we find that the six-month limitations period in Fayak‘s employment application is reasonable and enforceable under Ohio law.
{¶ 22} Insofar as Fayak attempts to challenge whether she agreed to the limitations provision in her employment application as well as the language of the provision, she did not raise these or her related arguments in the trial court. Here, we apply the “familiar principle of law that a party who does not raise an issue in the trial court may not ordinarily raise that issue for the first time on appeal.” Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, 145 N.E.3d 278, at ¶ 10. However, we note that in Fry it was found that an application for employment constituted an offer upon its presentation and that “[w]hen appellant executed the application, his acceptance of the offer was complete, and the agreement was formed.” Id. at ¶ 18. Fayak does not state in her affidavit that she did not read and understand the employment application. Although she now claims on appeal that she did not agree to be bound by the arbitration clause and asserts there is no evidence as to who typed her name on the employment application, she never disputed that she submitted the employment application, which in addition to her typed name that “represent[s] your electronic signature” also provided her social security number and driver‘s license number. Arguably, she was responsible for reviewing the application and consented to the terms by submitting the online
{¶ 23} Fayak‘s first and second assignments of error are overruled.
{¶ 24} Under her third assignment of error, Fayak argues that there are genuine issues of material fact as to the date the limitations period began to run and whether the grounds for her employment termination were pretextual.
{¶ 25} Fayak argues that Ohio‘s savings statute,
{¶ 26} While Fayak claims that there exist material issues of fact as to the date the limitations period began to run and whether the grounds for her termination were pretextual, these issues were not raised in the trial court. Our review reflects that Fayak was on a 14-month leave of absence prior to her discharge on June 28, 2016. No adverse conduct is alleged to have occurred during her leave of absence. The defendants presented evidence to show that Fayak‘s leave of absence was unauthorized as of July 1, 2015 and that she was terminated because she failed to provide documentation to support her continued leave of absence. Fayak offered no evidence to demonstrate her termination was for any other reason. In her brief in opposition to summary judgment, she conceded she was unable to
{¶ 27} We will not consider the remaining arguments that are being raised for the first time on appeal. We overrule Fayak‘s third assignment of error.
{¶ 28} Finally, we are mindful that the trial court granted summary judgment solely for the reason that Fayak‘s claims were untimely filed under the contractual limitations period. We certainly understand the gravity of the claims that have been raised. However, under Ohio law, the shortened limitations period is enforceable against Fayak‘s claims. The trial court did not consider the merits of the claims or other issues in ruling on the motion for summary judgment. Issues raised in summary judgment motions that are not considered by the trial court should not be determined by an appellate court in the first instance. Meekins v. Oberlin, 8th Dist. Cuyahoga No. 106060, 2018-Ohio-1308, ¶ 24-26; Ocwen Loan Servicing, L.L.C. v. McBenttes, 9th Dist. Summit No. 29343, 2019-Ohio-4884, ¶ 8; Montville Lakes Cluster Homeowners Assn. Phase One v. Montville Lakes Homeowners Assn., 9th Dist. Medina No. 16CA0082-M, 2017-Ohio-7920, ¶ 17. “The better practice is to allow the trial court to analyze the evidence in the first instance.” Browne v. Artex Oil Co., 158 Ohio St.3d 398, 2019-Ohio-4809, 144 N.E.3d 378, ¶ 18; see also Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360, 1992-Ohio-95, 604 N.E.2d 138. (“[T]he trial court‘s function cannot be replaced by an ‘independent’ review of an appellate court.“) Therefore, we decline to consider any arguments that were not addressed by the trial court in the first instance.
{¶ 29} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR