Juergens v. House of LaRose, Inc.
No. 106972
Court of Appeals of Ohio, Eighth Appellate District
January 10, 2019
2019-Ohio-94
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106972
RALPH JUERGENS
PLAINTIFF -APPELLANT
vs.
THE HOUSE OF LAROSE, INC., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-17-886293
BEFORE: Keough, J., S. Gallagher, P.J., and Handwork, J.*
RELEASED AND JOURNALIZED: January 10, 2019
Fred M. Bean
Brian D. Spitz
Daniel S. Dubow
Spitz Law Firm
25200 Chagrin Blvd., Suite 200
Beachwood, Ohio 44122
ATTORNEYS FOR APPELLEES
James P. Smith
Jeffrey Moyle
Littler Mendelson, P.C.
1100 Superior Ave., 20th Floor
Cleveland, Ohio 44114
KATHLEEN ANN KEOUGH, J.:
{¶1} Plaintiff-appellant, Ralph Juergens (“Juergens”), appeals from the trial court’s judgment granting summary judgment in favor of defendants-appellees, House of LaRose, Inc. (“LaRose”) and Al Scott (“Scott”) (collectively “appellees”), and denying Juergens’s Civ.R. 56(F) motion for additional discovery. For the reasons that follow, we affirm.
I. Background and Procedural History
{¶2} Juergens was employed as a warehouse employee with LaRose until March 2017. At all times during his employment, Juergens was a member of the International Brotherhood of Teamsters Union, Local 293 (the “Union”). As a member of the Union, the terms and conditions of Juergens’s employment were governed by the collective bargaining agreement (“CBA”) between the Union and LaRose.
{¶3} Article V of the CBA set forth a grievance and arbitration procedure. Under the procedure, an employee who believed that LaRose had violated his or her rights under the CBA
{¶4} LaRose terminated Juergens’s employment on March 6, 2017. That same day, Juergens filed a handwritten grievance alleging that “my employment was terminated, unjustified and without just cause,” and seeking reinstatement with backpay and benefits. LaRose denied Juergens’s grievance at steps one, two, and three of the grievance procedure.
{¶5} On March 13, 2017, Scott, vice president of human resources for LaRose, sent letters via certified mail to the Union and Juergens advising them that Juergens’s grievance had been denied at step three. On March 17, 2017, the Union sent Juergens a letter via certified mail advising him that it had considered his case for submission to arbitration but, in light of the facts and circumstances of his termination, determined that the grievance did not have sufficient merit to go forward. The letter was delivered to Juergens’s house on March 18, 2017. On March 23, 2017, Juergens attempted to unilaterally request arbitration with LaRose but was advised by the company that any request for arbitration had to come from the Union.
{¶6} On September 21, 2017, Juergens filed a complaint alleging a single count of age discrimination under R.C. 4112.02 against appellees. The complaint did not assert a violation of R.C. 4112.14(B).
{¶7} After LaRose and Scott answered Juergens’s complaint, the trial court held a case management conference. At the conference, defense counsel advised the court and Juergens’s counsel that appellees planned to file a motion for summary judgment because Juergens’s age discrimination claim was barred as a matter of law. At a subsequent status conference to address discovery issues relative to appellees’ motion for summary judgment, the trial court
{¶8} Appellees filed their motion for summary judgment, arguing that Juergens’s age discrimination claim failed as a matter of law because it was barred by (1) the applicable 180-day statute of limitations for claims brought pursuant to R.C. 4112.02, and (2) R.C. 4112.14(C), which prohibits employment discrimination claims brought under R.C. Chapter 4112 where the employee had the opportunity to arbitrate his discharge.
{¶9} In response, Juergens filed a combined brief in opposition to appellees’ motion, a motion for sanctions, an alternative motion for additional time to conduct discovery pursuant to Civ.R. 56(F), and an alternative motion for leave to amend his complaint to assert a claim for age discrimination under R.C. 4112.14.
{¶10} The trial court subsequently granted appellees’ motion for summary judgment, and denied Juergens’s motions for sanctions, additional time to conduct discovery, and to amend the complaint. In granting appellees’ motion for summary judgment, the trial court ruled that Juergens’s age discrimination claim was barred as a matter of law because it was filed outside the 180-day statute of limitations for age discrimination claims brought under R.C. 4112.02.
{¶11} The court further found that Juergens’s claim failed as a matter of law under R.C. 4112.12(C) because he was afforded the opportunity to arbitrate his discharge through the grievance and arbitration procedure set forth in the CBA between the Union and LaRose.
{¶12} This appeal followed.
II. Law and Analysis
A. Standard of Review
{¶14} Under
{¶15} On a motion for summary judgment, the moving party has the initial burden of identifying those portions of the record that demonstrate the absence of genuine issues of material fact on the essential elements of the nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary judgment is not appropriate. Id. Summary judgment is appropriate, however, if a motion for summary judgment is properly made and supported, and the nonmoving party fails to meet its reciprocal burden to set forth specific facts by the means listed in
B. Timeliness of Juergen’s Age Discrimination Claim
{¶16} In his first assignment of error, Juergens contends that the trial court erred in granting appellees’ motion for summary judgment.
{¶17}
{¶18} The single cause of action in Juergens’s complaint is captioned “Wrongful Termination Based on Age Discrimination in Violation of
{¶19} In their motion for summary judgment, appellees argued that Juergens’s age discrimination claim under
{¶20} In his affidavit attached to appellees’ motion for summary judgment, Scott averred that LaRose terminated Juergens’s employment on March 6, 2017. Attached to Scott’s affidavit was a copy of the written notice of Juergens’s termination issued by LaRose on March 6, 2017. Also attached to Scott’s affidavit was a copy of Juergens’s handwritten grievance, dated March 6, 2017, in which Juergens alleged that his employment was terminated without just cause and seeking reinstatement with back pay and benefits.
{¶22} On appeal, Juergens contends that his affidavit created an issue of fact regarding his termination date and, therefore, the trial court erred in deciding a disputed factual issue when it determined that he was discharged on March 6, 2017 and that his complaint was therefore untimely filed. Juergens contends that the trial court impermissibly accepted Scott’s assertion regarding the termination date over his sworn affidavit. He argues further that, in any event, even if Scott’s affidavit were true, the grievance procedure tolled the statute of limitations. We disagree with both arguments.
{¶23} In Ohio, “‘[a] cause of action does not accrue until such time as the infringement of a right arises. It is at this point that the time within which a cause of action is to be commenced begins to run.’” Kozma v. AEP Energy Servs., 10th Dist. Franklin No. 04AP643, 2005-Ohio-1157, ¶ 24, quoting State ex rel. Teamsters Local Union 377 v. Youngstown, 50 Ohio St.2d 200, 203-204, 364 N.E.2d 18 (1977). The statute of limitations is triggered on the
{¶24} It is apparent that LaRose’s “employment practice” became “presently injurious” to Juergens on March 6, 2017, when LaRose terminated his employment. LaRose issued a written “Notice of Termination” on March 6, 2017, identifying Juergens’s misconduct and indicating that the “disposition” was “termination from employment.” That same day, Juergens filed a handwritten grievance in which he wrote “my employment was terminated” and requested that LaRose “reinstate my employment with back pay and benefits.” Thus, by Juergens’s own account, he was no longer employed or being paid or provided with any benefits as of March 6, 2017. Accordingly, the statute of limitations for Juergens’s age discrimination claim began to run on March 6, 2017. Oker v. Ameritech Corp., 89 Ohio St.3d 223, 224, 729 N.E.2d 1177 (2000) (“The statute of limitations period applicable to age discrimination claims brought under R.C. Chapter 4112 begins to run on the date of the employee-plaintiff’s termination from defendant-employer.”)
{¶25} Because an age discrimination claim under
{¶26} Juergens attempts to avoid this result by creating an issue of fact regarding his termination date. He asserts that, as averred in his affidavit, LaRose told him that his termination would not be “official” until the grievance procedure was completed, which according to him was March 25, 2017.
{¶27} But common sense dictates that an employee cannot grieve his discharge from employment until he has actually been discharged. Juergens obviously knew that he had been discharged as of March 6, 2017; he filed a grievance that same day, starting that his employment had been terminated without just cause and requesting back pay and benefits.
{¶28} Moreover, it is well established that
a party’s unsupported and self-serving assertions, offered by way of affidavit, standing alone and without corroborating materials under
Civ.R. 56 , will not be sufficient to demonstrate material issues of fact. Otherwise, a party could avoid summary judgment under all circumstances solely by simply submitting such a self-serving affidavit containing nothing more than bare contradictions of the evidence offered by the moving party.
Davis v. Cleveland, 8th Dist. Cuyahoga No. 83665, 2004-Ohio-6621, ¶ 23, quoting Bell v. Beightler, 10th Dist. Franklin No. 02AP-569, 2003-Ohio-88, ¶ 33. Thus, “the nonmoving party may not avoid summary judgment solely by submitting a self-serving affidavit containing no more than bald contradictions of the evidence offered by the moving party.” C.R. Withem Ents. v. Maley, 5th Dist. Fairfield No. 01 CA 54, 2002-Ohio-5056, ¶ 24.
{¶29} That is precisely what Juergens tried to do with his self-serving affidavit. He offered no corroborating evidence whatsoever to support his claimed termination date of March
{¶30} Moreover, even assuming for purposes of argument that Juergens’s employment did not become “official” until the grievance procedure was completed, the process ended at the latest on March 18, 2017, when Juergens received the Union’s written notification that it would not take his grievance to arbitration. One hundred eighty days from March 18, 2017 is September 14, 2017, a week before Juergens filed his complaint. Any argument that Juergens extended the process beyond March 18 by unilaterally requesting arbitration from LaRose is without merit. The CBA is clear that the Union is the sole representative for the employees, and nothing in the CBA gives Juergens the right to request arbitration on his own.
{¶31} We also reject Juergens’s assertion that even if he was terminated on March 6, 2017, the grievance process tolled the statute of limitations. As recognized by the Tenth District, “[t]he United States Supreme Court has held that equitable tolling is not permitted to extend the statute of limitations to file a wrongful termination lawsuit while an employee pursues an internal grievance process regarding her termination.” Lesko v. Riverside Methodist Hosp., 10th Dist. Franklin No. 04AP-1130, 2005-Ohio-3142, ¶ 9. Likewise, the Sixth Circuit has made clear that “[i]t is well settled in this circuit that union grievance procedures * * * do not toll the statute of limitations.” Chance v. Mahoning Cty., 6th Cir. No. 03-3017, 2004 U.S. App. LEXIS 13711, * 8 (June 22, 2004).
{¶33} Likewise, Juergens’s assertion that Oker, 89 Ohio St.3d 223, 729 N.E.2d 1177 (2000), and Zindroski v. Parma City School Dist. Bd. of Edn., 8th Dist. Cuyahoga No. 93583, 2010-Ohio-3188, support his argument is without merit. In Oker, the Ohio Supreme Court held that the statute of limitations for an age discrimination claim under R.C. Chapter 4112 begins to run on the date of the employee’s termination from the employer, which in this case was March 6, 2017. Moreover, Oker did not address any tolling issues. In Zindroski, this court found that the statute of limitations for a discrimination claim under R.C. Chapter 4112 begins to run on the date the alleged unlawful discriminatory practice occurred. Id. at ¶ 35. The alleged age discrimination in this case occurred on March 6, 2017, when Juergens’s employment was terminated.
{¶34} Our de novo review of the record demonstrates there is no genuine issue of material fact regarding Juergens’s termination date. He was terminated on March 6, 2017, and was therefore required to bring his age discrimination claim under
{¶36} The first assignment of error is overruled.
C. Alternative Age Discrimination Claim under R.C. 4112.14
{¶37} In his second assignment of error, Juergens contends that the trial court committed reversible error by not allowing him to alternatively proceed under
{¶38} Juergens contends that under Ohio’s liberal notice pleading requirements, his assertions at paragraphs 46 and 50 of his complaint that he was a member of a protected class under
{¶39}
{¶40} Thus, the Ohio Supreme Court has found that a plaintiff must elect which statute he is proceeding under when bringing an age discrimination claim. Leinenger v. Pioneer Natl. Latex, 115 Ohio St.3d 311, 2007-Ohio-4921, 875 N.E.2d 36, ¶ 31. See also Dunn v. GoJo Indus., 9th Dist. Summit No. 28392, 2017-Ohio-7230, ¶ 36 (“When bringing an age discrimination claim, a plaintiff must elect which statute she is proceeding under — 4112.02, 4112.05 or 4112.14.”). The sections are mutually exclusive, and it is the responsibility of the aggrieved employee, not the court, to determine under which section he will bring his claim. Wood v. Summit Cty. Fiscal Office, 6th Cir. No. 08-4534, 2010 U.S. App. LEXIS 9999, *4 (May 14, 2010).
{¶41} Juergens clearly elected to bring his claim under
{¶42} Juergens’s complaint also sought compensatory and punitive damages and damages for emotional, physical, and other distress — damages that are statutorily available under
{¶43} By the terms of his complaint, Juergens elected to proceed solely under
{¶44} And Juergens did not raise with the trial court his argument that he simultaneously filed a claim under
{¶45} Juergens does not acknowledge his failure to raise this argument in the trial court, nor does he invoke the plain-error doctrine on appeal. Under these circumstances, we need not address it. Id. at ¶ 19. Further, in civil cases, the plain error doctrine is not favored, and may be applied only in the extremely rare case where “error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099, syllabus (1997).
{¶46} As his complaint makes clear, Juergens elected to bring his age discrimination claim under
{¶47} Nor did the trial court abuse its discretion in not allowing him to amend his complaint to add such a claim. To demonstrate an abuse of discretion in denying a motion to amend, the appellant must demonstrate that the trial court’s denial was “unreasonable, arbitrary, or unconscionable.” Krzywicki v. Gay, 8th Dist. Cuyahoga No. 105039, 2017-Ohio-5584, ¶ 12. The plain text of
{¶48} The second assignment of error is overruled.
D. Additional Discovery Under Civ.R. 56(F)
{¶49} In his third assignment of error, Juergens contends that the trial court committed reversible error by not allowing any discovery before it ruled on appellees’ motion for summary judgment, and by denying his
{¶50}
Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.
{¶51} It is well established that the trial court has considerable discretion in the regulation of discovery proceedings. Scanlon v. Scanlon, 2013-Ohio-2694, 993 N.E.2d 855, ¶ 24 (8th Dist.). Thus, we will not reverse its judgment regarding a
{¶52} The party seeking additional time to respond to a motion for summary judgment must present sufficient reasons that would justify the requested continuance, and do more than merely assert generally the need for additional discovery. Grill v. Artistic Renovations, 8th Dist. Cuyahoga No. 105882, 2018-Ohio-747, ¶ 33. “There must be a factual basis stated and reasons given why the party cannot present facts essential to its opposition to the motion.” Penix v. Avon Laundry & Dry Cleaners, 8th Dist. Cuyahoga No. 91355, 2009-Ohio-1362, ¶ 31.
{¶53} On this record, we find no abuse of discretion. The issues raised in appellees’ motion for summary judgment were purely issues of law, not fact. Thus, the trial court did not abuse its discretion in ordering all discovery stayed pending a ruling on appellees’ motion. Moreover, counsel’s affidavit submitted with the
{¶54} We likewise find no merit to Juergens’s argument that he should have been allowed discovery regarding whether Scott was out of town during the statute of limitations period because
{¶55} Judgment affirmed.
It is, therefore, considered that said appellees recover of appellant their costs herein.
It is ordered that a special mandate be sent to said 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.
KATHLEEN ANN KEOUGH, JUDGE
SEAN C. GALLAGHER, P.J., and
PETER HANDWORK, J.,* CONCUR
*(Sitting by assignment: Judge Peter Handwork, retired, of the Sixth District Court of Appeals).