Sells v. Holiday Mgt. Ltd.Sells v. Holiday Mgt. Ltd.
Rendered on November 17, 2011
Adams & Liming LLC, Roxi A. Liming, and Sharon Cason Adams, for appellant.
Andrew Cooke & Assoc., LLC, and Adam J. Bennett, for appellee.
APPEAL from the Franklin County Court of Common Pleas.
FRENCH, J.
{¶1} Plaintiff-appellant, Raymond Sells (“Sells“), appeals the Franklin County Court of Common Pleas’ entry of summary judgment in favor of defendant-appellee, Holiday Management Limited (“HML“), on Sells’ complaint for wrongful termination in violation of public policy. For the following reasons, we affirm.
{¶2} From January 1, 2007 to March 3, 2009, Sells was employed as a maintenance technician by HML, an apartment management company. In this action, filed December 30, 2009, Sells alleged that HML wrongfully terminated his employment because of absences due to subpoenaed court appearances, in violation of the Ohio public policy set forth in
{¶3} HML moved for summary judgment on November 24, 2010, and the trial court granted HML‘s motion on January 12, 2011, after determining that reasonable minds could not find that Sells’ discharge was motivated by conduct related to the public policy. The trial court entered final judgment in favor of HML on February 3, 2011.
II. ASSIGNMENTS OF ERROR
{¶4} Sells filed a timely notice of appeal and now raises the following assignments of error:
- The trial court erred when it made a fact determination on the issue of causation regarding [Sells‘] wrongful discharge in violation of Ohio public policy claim and in granting [HML‘s] Motion for Summary Judgment.
- The trial court erred when it made a fact determination on the issue of overriding justification regarding [Sells‘] wrongful discharge in violation of Ohio public policy claim and in granting [HML‘s] Motion for Summary Judgment when [HML] had not raised this [issue] in its Motion.
A. FIRST ASSIGNMENT OF ERROR
{¶5} In his first assignment, Sells сontends that the trial court erred by granting summary judgment in favor of HML. We review a summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, citing Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711. We apply the same standard as the trial court and conduct an independent review, without deference to the trial court‘s determination. Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Brown at 711. We must affirm the trial court‘s judgment if any grounds the movant raised in the trial court support it. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41-42.
{¶6} Pursuant to
{¶8} In Ohio, the common-law doctrine of employment at will governs employment relationships. Dohme v. Eurand Am., Inc., __ Ohio St.3d __, 2011-Ohio-4609, ¶11. Either party to an at-will employment relationship may generally terminate the relationship at any time and for any reason not contrary to law. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 103. The termination of an at-will employment relationship does not usually give rise to an action for damages. Collins v. Rizkana, 73 Ohio St.3d 65, 67, 1995-Ohio-135. If, however, an employer discharges or disciplines an employee in contravention of a clear public policy articulated in the Ohio or United States Constitution, federal or state statutes, administrative rules and regulations or common law, a cause of action may exist in tort for wrongful discharge in violation of public policy. Dohme at ¶11.
” ‘1. That clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element).
” ‘2. That dismissing employees under circumstances like those involved in the plaintiff‘s dismissal would jeopardize the public policy (the jeopardy element).
” ‘3. The plaintiff‘s dismissal was motivated by conduct related to the public policy (the causation element).
” ‘4. The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).’ ” (Emphasis sic.) * * *
Id. at ¶12-16, quoting Painter v. Graley, 70 Ohio St.3d 377, 384, fn. 8, 1994-Ohio-334, quoting Henry H. Perritt, Jr., The Future of Wrongful Dismissal Claims: Where Does Employer Self-Interest Lie? (1989), 58 U.Cin.L.Rev. 397, 398-99. The clarity and jeopardy elements are issues of law for the court, whereas the causation and overriding justification elements are questions of fact. Collins at 70.
{¶10} HML did not dispute the clarity element of Sells’ claim, and the trial court found that Sells satisfied that element. The trial court found a clear public policy manifested in
{¶11} HML‘s arguments in support of summary judgment focused on the jeopardy and causation elements of Sells’ claim. As to the jeopardy element, HML
{¶12} Because the trial court focused almost exclusively on the causation element, which is the subject of Sells’ first assignment of error, we begin there as well. Sells argues that genuine issues of material fact remain as to whether his dismissal was motivated by conduct related to the public policy set forth in
* * * (1) Plaintiff missing a total of twenty-eight (28) days of work between October 2008 and March 2009; (2) Plaintiff sending overly sexual text messages to co-workers; (3) Plaintiff arranging drug deals from work; (4) Plaintiff repeatedly failing to complete maintenance requests on time; and (5) Plaintiff‘s friends and family engaged in unruly behavior including the use of racial epithets at the apartment pool. * * *
In a footnote, the trial court stated that these reasons also demonstrate that Sells cannot establish a lack of overriding justification for his termination.
{¶13} Much of the evidence regarding Sells’ employment, absences, and disciplinary record is undisputed. Sells acknowledged his receipt of HML‘s written disciplinary policy for “viоlation of [its] rules and procedures or for unacceptable
{¶14} HML maintained records of employee discipline on documents entitled Employee Record of Counseling and Warning (“ROC“). A completed ROC identifies the employee, the date and nature of the violation, and the dаte of the warning. The ROC also includes space for company remarks, the employee‘s remarks regarding the violation, action to be taken, and signatures by the employee and the HML representative. The ROC states, “[t]he absence of any statement on the part of the EMPLOYEE indicates his/her agreement with the report as stated.”
{¶15} From December 5, 2008 to March 3, 2009, Sells received three ROCs. Sells first received disciplinary counseling on December 5, 2008, from his supervisor, Scott Fields (“Fields“). The December 5, 2008 ROC identified the nature of Sells’ violation as substandard work and stated that work orders were not completed in a timely manner and that residents had complained of work not being done. Sells signed the ROC and, in his deposition, agreed with it “because there [were] a few work orders that [weren‘t] resolved.” (Sells Deposition 20.)
{¶16} Sells’ second ROC, dated January 8, 2009, listed a violation date of January 5, 2009, and identified the nature of the violation as substandard work and
{¶17} Sells received a third ROC, dated March 3, 2009, from Tim Arnold (“Arnold“), the President of HML. The March 3, 2009 ROC identified the nature of Sells’ violation as conduct and tardiness/absenteeism based on “[t]oo much time missed from work and complaints regarding job performance.” Sells neither signed nor provided a written response to the ROC, although he testified in his deposition that he believed the ROC was inaccurate. Arnold terminated Sells’ employment on March 3, 2009. Sells testified that he believes he was terminated for missing too much work and for complaints regarding his job performance as stated on the ROCs, all of which he noted mentioned his job performance.
{¶18} Frоm September 2008 through March 2009, Sells received numerous subpoenas requiring his presence at criminal court proceedings in two cases against his wife and her boyfriend, Wayne Saunders. Sells claims he was a victim in both cases.
{¶19} Sells maintains that the trial court erred in granting summary judgment because genuine issues of material fact remain as to whether his termination was motivated by his subpoenaed absences. Sells contends that his termination notice (the March 3, 2009 ROC), which stated that he was terminated for missing too much wоrk and for complaints regarding his job performance, constitutes direct evidence that HML terminated his employment for conduct that implicates the public policy against penalizing an employee for complying with a subpoena. We disagree. Direct evidence is evidence that, if true, proves a fact without inference or presumption. Black‘s Law Dictionary (9th ed.2009). For example, where an employer‘s statement directly shows there was a discriminatory motive, the statement constitutes direct evidence of discrimination. Olive v. Columbia/HCA Healthcare Corp. (Mar. 9, 2000), 8th Dist. No. 75249. Although the ROC is evidence that Sells’ absences contributed to HML‘s decision to terminate his employment, a trier of fact could not reach a finding of discriminatory motive without making additional inferences where, as hеre, Sells’ absences were not limited to those occasioned by subpoenas.
{¶20} From October 1, 2008 to March 3, 2009, in addition to the 43 hours of work he missed to comply with the subpoenas, Sells’ unrelated absences included nine
{¶21} In support of his argument that the trial court erred by granting summary judgment on the basis of the causation element, Sells relies primarily on federal discrimination cases applying the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817. Under that framework, which applies in the absence of direct evidence of discrimination, a plaintiff must first establish a prima facie case, which creates a presumption that the employer discriminated against the plaintiff. See Williams v. Akron, 107 Ohio St.3d 203, 2005-Ohio-6268, ¶9-11. Once the plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate and present evidence of a legitimate, nondiscriminatory reason for its action. Id. at ¶12. If the employer meets its burden of production, the presumption created by the prima facie case drops away and the plaintiff bears the burden of proving that the reason offered by the employer was not its true reason, but was a pretext for discrimination. Id. at ¶12, 14. The Supreme Court of
{¶22} Courts have applied a similar burden-shifting analysis in claims of wrongful discharge in violation of public policy. Both of Ohio‘s federal district courts and the Sixth Circuit Court of Appeals have specifically acknowledged that the causation and overriding justification elements of a wrongful discharge in violation of a public policy claim “are equivalent to [this] burden-shifting analysis.” Hall v. ITT Automotive (N.D.Ohio 2005), 362 F.Supp.2d 952, 960, citing White v. Simpson Industries, Inc. (C.A.6, 2001), 1 Fed.Appx. 462; Kittle v. Cynocom Corp. (S.D.Ohio 2002), 232 F.Supp.2d 867, 874 (holding that the burden-shifting analysis employed by Ohio courts for discrimination cases “correlate[s] well with the third and fourth elements of a public policy tort“). In Kittle, the court explained as follows:
* * * [T]o prove that Plaintiff‘s termination was motivated by conduct related to the public policy [against disability discrimination], Plaintiff must set forth a prima facie case for disability discrimination. Second, the overriding justification element of the public policy tort claim correlates with the second step of the disability discrimination analysis in which Defendant may present evidence of legitimate nondiscriminatory reasons for the termination of Plaintiff. Finally, although evidence of pretext is not an element оf a public policy tort claim, just as it can serve to rebut evidence of a nondiscriminatory reason for termination for a statutory claim, evidence of pretext is also relevant to rebut evidence of a nondiscriminatory reason for termination under a public policy claim.
{¶23} Sells argues that, based on the totality of the circumstantial evidence, the record presents genuine issues of material fact regarding causation. As examples of circumstantial evidence, Sells identifies the temporal proximity betwеen his subpoenaed absences and his disciplinary counseling and termination, HML‘s allegedly shifting reasons for his termination, HML‘s solicitation of complaints against Sells, and HML‘s alleged failure to follow its disciplinary policy. The trial court found that none of the cited evidence was sufficient to demonstrate a genuine issue of material fact regarding the causation element of Sells’ claim.
{¶24} We initially and summarily reject Sells’ contention that HML deviated from its four-step disciplinary policy when it terminated his employment. The trial court held that HML‘s compliance with the disciplinary policy was discretionary in the absence of an employment contract or an employee handbook, such that HML‘s action did not establish a genuine issue of material fact as to causation. Based on the express language of the disciplinary policy, we agree with the trial court‘s conclusion that HML‘s action does not give rise to an issue of fact regarding causation. Although Sells correctly asserts that HML terminated him upon the third step of the disciplinary procedure, HML‘s written policy expressly states that the four-step process “is not a
{¶25} Sells also argues that HML has proffered inconsistent and shifting reasons for terminating his employment and that its inconsistency demonstrates a genuine issue of material fact as to the true cause for his termination. In his deposition, Arnold testified that he told Sells he was being terminated for the reasons stated on the March 3, 2009 ROC, namely too much time missed from work and complaints about Sells’ job performance. Sells likewise testified that he believed he was fired for the reasons stated on the March 3, 2009 ROC, and he recognized that all three ROCs contained complaints about his job performance. Those complaints included untimely completion of work orders, unresolved work orders, resident complaints, and rudeness to office staff and residents.
{¶26} Based on additional testimony in Arnold‘s deposition and affidavit, Sells contends that HML has altered its proffered basis for his termination. In his deposition, Arnold testified that the reasons he gave Sells for his termination were those on the March 3, 2009 ROC, but when asked why he made the decision to fire Sells at that particular time, he stated, “[b]ecause several of my female employees were fearful of [Sells] due to his inappropriate texts and comments and drug use.” (Arnold Deposition
{¶27} “An employer‘s changing rationale for making an adverse employment decision can be evidence of pretext” to establish discrimination. Thurman v. Yellow Freight Sys., Inc. (C.A.6, 1996), 90 F.3d 1160, 1167. In a more recent case involving a claim of retaliation, however, the Sixth Circuit explained as follows:
* * * The extent to which such shifting justifications are probative of pretext depends upon the circumstances of a given case. At its root, pretext is a common-sense inquiry into whether the employer took the adverse employment action for the stated reason or not. * * * Hence, we look not only to whether changes in an employer‘s rationale have occurred, but to whether the circumstances could permit a rational factfinder to conclude that these changes are indicative that the currently-proffered explanation is false. * * *
Eades v. Brookdale Senior Living, Inc. (C.A.6, 2010), 401 Fed.Appx. 8, 13, citing Chen v. Dow Chem. Co. (C.A.6, 2009), 580 F.3d 394, 400, fn. 4, and Reeves v. Sanderson Plumbing Prods., Inc. (2000), 530 U.S. 133, 148-49, 120 S.Ct. 2097, 2109. (Emphasis sic.) Where a later rationale cannot be reconciled with an earlier rationale because of
{¶28} The evidence in the record regarding HML‘s reasons for terminating Sells’ employment does not create a genuine issue of material fact as to whether the termination was motivated by conduct related to the public policy, i.e., Sells’ absences to comply with duly-served subpoenas. HML has never contradicted the initial rationale expressed to Sells—that his termination was the result of excessive absences and complaints about his job performance. Issues with Sells’ job performance are cited in each of the ROCs, Arnold‘s deposition and affidavit, and HML‘s motion for summary judgment. Sells’ excessive absences are cited in the third ROC, Arnold‘s deposition and affidavit, and HML‘s motion for summary judgment. Undoubtedly, Arnold expanded on his rationale and noted additional reasons for Sells’ termination in his deposition and
{¶29} Sells next argues that Arnold‘s solicitation of written complaints from other employees before terminating his employment creates a genuine issue of material fact regarding causation. Arnold testified that he asked female employees to write down any problems they had with Sells, although there is no evidence in the record regarding when Arnold made that request. The record contains three written complaints from female employees. One complaint is dated March 2, 2009 and two are undated. Two of the complaints allege sexual text messages and comments from Sells and statements regarding Sells’ drug-related activity, including making phone calls from work to set up drug sales. The third stаtement simply related maintenance complaints the employee received from two residents on January 5, 2009, the violation date listed on the January 8, 2009 ROC. Arnold testified that he became aware of the claims of
{¶30} In discrimination and retaliation cases, federal courts have considered, as evidence of pretext, evidence that an employer subjected a plaintiff to increased scrutiny or made efforts to create a paper trail, especially a false one, to support disciplinary action or termination. See, e.g., Hamilton v. Gen. Elec. Co. (C.A.6, 2009), 556 F.3d 428 (plaintiff may establish a gеnuine issue of material fact as to whether an employer‘s proffered reason is pretext with evidence that the employer heightened its scrutiny and supervision of the plaintiff after the plaintiff filed a discrimination charge. Other courts, however, have rejected attempts to establish pretext with evidence that the employer created a paper trail to support an adverse employment action. For example, in Anderson v. Stauffer Chem. Co. (C.A.7, 1992), 965 F.2d 397, 402, the court held that, even if the plaintiff‘s allegation that his supervisor solicited complaint letters was true, “the fact remains that there were complaints and [the employer] claimed to have based his decision on the complaints.” The court stated that termination was justified if the employer believеd the complaints. See also Wright v. Wyandotte Cty. Sheriff‘s Dept. (D.Kan.1997), 963 F.Supp. 1029, 1037 (stating that the “[d]efendant‘s decision to protect itself in the face of potential litigation by documenting plaintiff‘s transgressions is not, without more, unlawful discrimination“).
{¶31} Here, there is no evidence that Sells was treated differently than other HML employees or that HML increased its scrutiny of Sells after Sells engaged in protected conduct. Moreover, there is no evidence that Arnold acted to create a paper
{¶32} Lastly, Sells argues that temporal proximity between his subpoenaed absences and HML‘s disciplinary actions creates an issue of fact аs to the causal connection between the protected activity and the adverse employment actions. Sells received his first ROC three days after missing two hours of work to respond to a subpoena. Prior to the first ROC, Sells had missed work on four occasions since October 1, 2008, to comply with subpoenas. Sells received his second ROC the day after missing work to respond to his next subpoena. From December 5, 2008 through January 8, 2009, however, Sells missed two full days and two partial days of work unrelated to the subpoenas, one of which was a paid vacation day. Sells received his third ROC and was terminated on March 3, 2009, one week after he missed one-half day of work to respond to a subpoena. Between the dates of his second and third
{¶33} Sells concedes that temporal proximity between protected activity and an adverse employment action is generally insufficient, without other indicia of retaliatory conduct, to establish the causation element in a retaliatory discharge claim. See Tuttle v. Metro. Govt. of Nashville (C.A.6, 2007), 474 F.3d 307, 321. Nevertheless, he points out the Sixth Circuit‘s holding in Mickey v. Zeidler Tool & Die Co. (C.A.6, 2008), 516 F.3d 516, 525, that, in limited cases, “[w]here an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidenсe of a causal connection for the purposes of satisfying a prima facie case of retaliation.”3 The Mickey court explained its rationale as follows: “if an employer immediately retaliates against an employee upon learning of his protected activity, the employee would be unable to couple temporal proximity with any such other evidence of retaliation because the two actions happened consecutively, and little other than the protected activity could motivate the retaliation.” Id. at 525.
{¶34} In Mickey, where the employer laid off the plaintiff the day it learned that he had filed an EEOC charge, the court found the temporal proximity between those
{¶35} In Ohio, the First District Court of Appeals has held that, “[w]hile the employee need not present evidence of a ‘smoking gun,’ temporal proximity alone is insufficient to show pretext.” Mortensen v. Intercontinental Chem. Corp., 178 Ohio App.3d 393, 2008-Ohio-4723, ¶32, citing Cunningham v. Steubenville Orthopedics & Sports Medicine, Inc., 175 Ohio App.3d 627, 642, 2008-Ohio-1172, and Buehler v.
{¶36} In his appellate brief, Sells states that he does not rely on temporal proximity alone, but argues that temporal proximity, coupled with the other purported circumstantial evidence addressed above, establishes a genuine issue of material fact as to whether his termination was motivated by his missing work for subpoenaed court appearances. We disagreе.
{¶38} Also during this time, Sells received three disciplinary write-ups related to his job performance. Sells agreed with HML‘s concerns regarding his job performance noted in his first ROC. With respect to the second ROC, Sells opined that a disagreement between himself and Fields about his job performance led to Fields leveling the complaints listed in the ROC. Although Sells did not agree with the bases of the second and third ROCs, he did not provide a written response to either of those ROCs. Sells understood the ROC form and the statement therein that the absence of written remarks from the employee indicates the employee‘s agreement to thе ROC as written. During this time, as noted on the first and second ROCs and in a written statement from another HML employee, residents complained about Sells’ failure to
{¶39} Although causation and overriding justification are factual elements, “courts routinely grant summary judgment when the plaintiff fails to raise an issue of material fact with respect to either element.” Kirk v. Shaw Environmental, Inc. (May 25, 2010), N.D.Ohio No. 1:09-cv-1405. “[U]pon the movant‘s showing the lack of causation and the existence of overriding justification through depositions, the [plaintiff] has the reciprocal burden to demonstrate causation and the lack of an overriding justification” to avoid summary judgment. Barnes v. Cadiz, 7th Dist. No. 01 531 CA, 2002-Ohio-1534, ¶15, citing Wood v. Dorcas (2001), 142 Ohio App.3d 783, 793, and Chapman v. Adia Servs., Inc. (1997), 116 Ohio App.3d 534, 542.
{¶40} Here, Sells does not satisfy his reciprocal burden. Sells has presented no evidence that the reasons proffered by HML are themselves false or are not the true reasons for his termination. See Kittle at 878, citing Manzer v. Diamond Shamrock Chems. Co. (C.A.6, 1994), 29 F.3d 1078, 1084 (a plaintiff can establish pretext by showing that the proffered reason has no basis in fact, did not actually motivate the discharge or was insufficient to motivate the discharge). Even with respect to the allegations of sexual harassment and drug-related conduct, the substance of which Sells denies, Sells does not dispute that those allegations were made to Arnold or that Arnold believed those allegations. “The relevant question is whether the employer honestly believed its proffered reason for discharge, not whether the employer was
B. SECOND ASSIGNMENT OF ERROR
{¶41} By his second assignment of error, Sells argues that the trial court erred by stating, in a footnote, that the reasons supporting his termination “also show that [Sells] cannot satisfy the overriding justification element of the wrongful termination test.” Sells contends that the trial court‘s statement was erroneous because HML did not make an argument regarding that element in its motion for summary judgment. A party seeking summary judgment must specifically delineate the basis of its motion. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, syllabus. If a party files a motion for summary judgment based on some, but not all, of the issues in a case, the trial court should restrict its ruling to the matters raised. Charvat v. Farmers Ins. Columbus, Inc., 10th Dist. No. 07AP-1078, 2008-Ohio-4353, ¶31, citing Ferro Corp. v. Blaw Knox Food & Chem. Equip. Co. (1997), 121 Ohio App.3d 434. While we agree that HML did not specifically argue Sells’ inability to satisfy the overriding justification element in its motion for summary judgment, HML‘s arguments regarding the reasons for its termination of Sells’ employment certainly go to that element, as well as to the element
IV. CONCLUSION
{¶42} In conclusion, we overrule Sells’ first assignment of error and render his second assignment of error moot. We affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and DORRIAN, JJ., concur.