C.A. Case No. 17912. T.C. Case No. 98-1648. | Ohio Ct. App. | Jan 28, 2000
In the new case, Stanley made all of the same claims he had made in his previous complaint. In addition, he made two more allegations which were not mentioned in the first case: (1) Defendants forced him to retire in retaliation, and (2) Defendants continued to retaliate against him from the date of retirement to the present. Shortly thereafter, Defendants filed a joint motion to dismiss all claims that had been dismissed in the October 20, 1997 summary judgment decision and the January 12, 1998 reconsideration decision. The trial court subsequently dismissed all previously rejected claims. Stanley appeals from the trial court's decisions sustaining Defendants' motions for summary judgment and reconsideration in the original case and the motion to dismiss in the present case raising the following assignments of error:
The Trial Court Erred by Sustaining Defendant's Motion for Summary Judgment in Connection with Plaintiff[']s Whistle Blowers [sic] Claim.
The Trial Court Erred by Sustaining Defendan't [sic] Motion for Summary Judgment in Connection with Plaintiff[']s Claim for Defamation.
The Trial Court Erred by Sustaining Defendant [sic] Motion for Summary Judgment in Connection with Plaintiff[']s Claims for Intentional Torts Against the Defendant, City.
The Trial Court Erred by Sustaining Defendant's Motion for Reconsideration in Connection with Defendant, Baker.
The Trial Court Erred in Sustaining Defendant's Motion to Dismiss.
The pertinent facts of this case are as follows. Stanley was employed by the city of Miamisburg as a police officer from January of 1989 until September 25, 1996. During his employment with the city, Stanley was involved in two separate automobile accidents which caused severe injury. The first was an off-duty accident in October of 1993 in which he injured his hip and pelvis. Following this accident, Stanley was out of work until March of 1994, when he returned on light duty status. He ultimately returned to full duty status on July 31, 1995. Then, on November 14, 1995, Stanley was involved in an on-duty accident that resulted in injury to his back and re-injury to his hip and pelvis. Thereafter, Stanley was on leave, first paid and then unpaid, until he took a medical retirement on September 25, 1996.
During his employment with the city of Miamisburg, Stanley claims he witnessed several criminal abuses within the department and reported these to his superiors, Defendants Tom Schenck, Chief of Police, Captain Aubrey Baker, and Officer William Mitchell. Additionally, he contends that he reported these abuses to the City Manager, John Weithofer, and the Assistant City Manager, David Collinsworth, both also named as Defendants. Stanley confirmed in his deposition that all reports he made to these individuals were strictly verbal until a letter written to Collinsworth on August 9, 1996. This was the first time Stanley submitted any written complaints.
Stanley alleges that in response to these verbal reports made to his superiors, he received unfair treatment as retaliation. In his original complaint, Stanley alleged this retaliation included but was not limited to "transferring and reassigning Plaintiff; withholding from Plaintiff benefits to which Plaintiff was otherwise entitled and reducing the Plaintiff in position." Additionally, in his August 9, 1996 letter to David Collinsworth, Stanley detailed several of these incidents including: 1) threatened disciplinary action for engaging in extramarital activities which turned out to be with his wife; 2) threatened disciplinary action and investigations by the IRS for purchasing a new sports car and a new home; 3) refusal of benefits following an on-duty accident in 1995 resulting in removal from community-oriented police assignment; 4) confrontation with Chief Schenck over opened personal mail which resulted in Schenck striking Stanley with a door; 5) notification by Chief Schenck and Captain Baker on several occasions that he was not well liked and his chances for advancement were slim or nonexistent; 6) discrimination based on his disability including attempts to prevent him from taking a promotional exam. Further details were outlined in Mrs. Stanley's August 26, 1996 letter to Miamisburg City Council: 1) refusal to honor and interference with workers' compensation benefits; 2) denial of participation in several special projects that Stanley was allegedly more qualified for than those who were chosen; 3) requiring Stanley to attend court, training and depositions while heavily medicated on disability leave.
In a separate section of his original complaint, Stanley also maintained that he was forced by the city to take a medical retirement. However, he alleged the direct reason for the medical retirement was the city's failure to accommodate his disability. In his deposition, Stanley alluded that the failure to accommodate his disability by only allowing his return to street patrol was a retaliatory act. Nevertheless, Stanley did not specifically classify his retirement as a retaliatory act until his memorandum in response to Defendants' motion for summary judgment and his refiled complaint following the voluntary dismissal.
Stanley has also been involved in several other proceedings regarding his injuries in which he was required to testify as to his disability status. In his lawsuit against his insurance company resulting from the October 1993 accident, he testified that he was "not capable of performing the basic duties of a police officer." Further, in his testimony before the Police and Fireman's Pension Fund, he stated that he "would not be able to resume career as a police officer in any capacity." Moreover, several doctors testified that Stanley's injuries prevented him from performing the duties of a police officer.
According to Civ. R. 56, a trial court should grant summary judgment only when the following tripartite test has been satisfied: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis DayWarehousing Co. (1978),
The moving party has the burden to establish that there is no genuine issue as to any material fact. Id. This burden can only be met by identifying specific facts in the record which indicate the absence of genuine issues of material fact. Dresher v. Burt
(1996),
Once this burden has been met, the non-moving party then has a reciprocal burden as outlined in Civ. R. 56(E), which provides the "adverse party may not rest upon the mere allegations or denials of [the party's] pleadings," but "must set forth specific facts showing that there is a genuine issue for trial." See id. at 293. Civ. R. 56(E) provides if the non-moving party does not respond or outline specific facts to demonstrate a genuine issue of material fact, then summary judgment is proper. Id.
Statute of Limitations
If an employee wishes to bring a civil action against his employer under the whistleblower statute, he must do so within 180 days of the retaliatory action. R.C.
However, Stanley did not assert to the trial court during consideration of the summary judgment motion the former two acts. At that time, he only maintained the retaliatory discharge occurred within the 180-day period. Stanley first mentioned the prior two acts occurred within the statutory period in his motion for reconsideration filed November 28, 1997.
Raising an argument in a motion for reconsideration does not necessarily preserve that argument for purposes of appeal. SeeFranks v. The Lima News (1996),
Stanley did contend in response to Defendants' motion for summary judgment that his "forced retirement" was retaliatory and occurred within the statutory period. Although his actual retirement clearly occurred within the statutory period, it is not clear that the circumstances "forcing" him to retire did. Stanley maintains that he was forced to retire because he was only permitted to return to work on street patrol duty, instead of returning to the COPS program which was primarily sedentary work. He claims Chief Schenck informed him of this on January 9, 1996, outside the statute of limitations period. Knowing that he was incapable of performing street duty, he felt his only option was a medical retirement.
Whether the trigger date for the statute of limitations is the date he was informed that he must return to street duty or the actual date of his retirement is a difficult question that need not be addressed today. As evidenced below, this issue becomes moot when addressing further aspects of Stanley's whistleblower claim.
Judicial Estoppel
Defendants argued, and the trial court agreed, that judicial estoppel prevented Stanley from raising a retaliatory discharge claim. In this regard, the trial court held that Stanley had on many different occasions claimed his retirement resulted from an inability to perform his job due to his disability. The doctrine of judicial estoppel prevents a litigant who has successfully taken a position in one action from taking a contradictory position in a subsequent action. Scioto Mem. Hosp. Assn., Inc. v.Price Waterhouse (1996),
In another case, a former police officer claimed he was "bullied" into applying for a disability pension in retaliation for not supporting the current police chief. DeGuiseppe, supra, at 191. As in the present case, DeGuiseppe requested a light duty assignment due to his disability and claims he was refused after several doctors reported he should not perform the duties of a police officer. Id. at 190. Subsequently, DeGuiseppe filed for and received a disability pension wherein he stated that he was disabled and submitted only the reports of the two physicians who found that he was totally disabled (as opposed to his own physician who stated that he could return to light duty). Id. at 191. The court found that by applying for and accepting the disability benefits, DeGuiseppe "ended his police career of his own volition." Id. Further, in response to his argument that he had really wanted light duty instead of a disability pension, the court held that the pension board had no authority to make such a determination. Id. Therefore, judicial estoppel prevented him from later claiming that he was forced to take retirement in retaliation. Id.
Similarly, in the present case, Stanley represented in at least two prior proceedings that his disability prevented him from performing the duties of a police officer. First, in his lawsuit against his insurance company resulting from the October 1993 accident, he testified that he was "not capable of performing the basic duties of a police officer." Then in his testimony before the Police and Fireman's Pension Fund, he stated that he "would not be able to resume career as a police officer in any capacity." There is no genuine issue of material fact that Stanley made these statements. As stated in DeGuiseppe, Stanley ended his career as a police officer on his own volition by making these statements for the purpose of obtaining funds based on his disability. The law prevents him from now saying that the city of Miamisburg or Chief Schenck constructively discharged him by "forcing" him to retire in retaliation for whistleblowing. Therefore, judicial estoppel prevents Stanley as a matter of law from claiming his retirement was a retaliatory act under R.C.
Written Report Requirement
As a final note, Stanley's whistleblower claim also must fail because he neglected to satisfy the mandatory requirements of Ohio's Whistleblower statute. In this regard, R.C.
While there is no dispute that Stanley orally notified several of his superiors of various alleged criminal abuses and other serious accusations, there is absolutely no evidence that Stanley put these allegations in writing prior to August 9, 1996. As discussed previously, no actionable retaliation occurred after this date. The only potential act of retaliation would have been the "forced" retirement. However, we have previously determined that Stanley is judicially estopped from claiming that his retirement was a retaliatory act. Therefore, the written notice requirement of the statute has not been met in this case.
Based on the foregoing, the trial court did not err in sustaining summary judgment in favor of Defendants on Stanley's whistleblower claim. The only alleged retaliatory act that potentially occurred within the 180-day statute of limitations was his retaliatory discharge which Stanley is judicially estopped from claiming. Further, he did not meet the written notice requirement in the statute which is necessary to be afforded protection under the whistleblower statute. Accordingly, Stanley's first assignment of error is overruled.
In order for Stanley to establish an action for defamation, he must demonstrate: "(1) that a false statement of fact was made, (2) that the statement was defamatory, (3) that the statement was published, (4) that the plaintiff suffered injury as a proximate result of the publication, and (5) that the defendant acted with the required degree of fault in publishing the statement."Pollock v. Rashid (1996),
In his brief, Stanley emphasizes that Baker made the statement to him (meaning Stanley) in support of his argument against summary judgment. However, the plaintiff is not a third party. Defendants argued in their summary judgment motion and again in their appellate brief that based on the pleadings and Stanley's deposition, Stanley had no personal knowledge of publication to a third party. The trial court found that this was sufficient to discharge Defendant's burden in their motion for summary judgment. According to Civ. R. 56(E), it was now Stanley's responsibility to establish, by affidavit or other evidence, that there was a genuine issue of material fact for trial. Stanley failed to meet this burden. He mentioned in his deposition several people that he believes heard Baker make the statement, but did not submit an affidavit from any of them. These bare allegations without evidence to support them are not sufficient to defeat a motion for summary judgment. Tubbs v.Cuyahoga Metropolitan Housing Authority (June 10, 1993), Cuyahoga App. No. 62710, unreported.
We agree with the trial court that Stanley did not meet his reciprocal burden under Civ.R. 56(E), and Defendants' motion for summary judgment on Stanley's defamation claim against Defendant Baker was properly sustained. Accordingly, Stanley's second assignment of error is overruled.
The purpose of Chapter 2744 is to provide immunity for political subdivisions against liability for "injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee * * *." R.C.
This chapter does not apply to, and shall not be construed to apply to, the following:
(B) Civil actions by an employee, or the collective bargaining representative of an employee, against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision[.]
Stanley contends that his employer intentional tort claim necessarily arises out of the employment relationship between him and the Defendants. We disagree. The Ohio Supreme Court has conclusively held that employer intentional torts do not arise out of the employment relationship:
When an employer intentionally harms his employee, that act effects a complete breach of the employment relationship, and for purposes of the legal remedy for such an injury, the two parties are not employer and employee, but intentional tortfeasor and victim. If the victim brings an intentional tort suit against the tortfeasor, it is a tort action like any other.
Brady v. Safety-Kleen Corp. (1991),
Stanley argues in his appellate brief that he did in fact provide ample evidence to the trial court of Baker's "outrageous" activity in his deposition. He mentions specifically that Baker referred to him as a "fucking gimp" and continually referred to Stanley and his disability in a derogatory manner. However, Stanley did not raise these arguments in his response to Defendants' motion for summary judgment.
In order to establish a claim for intentional infliction of emotional distress, a plaintiff must prove the following four elements:
(1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff;
(2) that the actor's conduct was so extreme and outrageous as to go `beyond all possible bounds of decency,' Restatement of Torts 2d (1965) 73, Section 46, comment d; (3) that the actor's actions were the proximate cause of plaintiff's psychic injury; and (4) that the mental anguish suffered by plaintiff is serious and of a nature that `no reasonable man could be expected to endure it,' Restatement of Torts 2d 77, Section 46, comment j.
Wigfall v. Soc. Natl. Bank (1995),
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!'
The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.
Yeager v. Local Union 20 (1983),
In their motion for summary judgment, Defendants compared all of the actions alleged by Stanley in his deposition with numerous cases finding the same types of actions did not constitute outrageous activity. See e.g. Breitenstein v. City of Moraine (Nov. 5, 1992), Montgomery App. No. 13375, unreported (finding no infliction of emotional distress by City Manager who threatened employee and used foul language); Stramkowski v. Fairview MedicalCenter Parking Co. (Feb. 18, 1993), Cuyahoga App. No. 64152, unreported (finding no infliction of emotional distress by employer accused of wrongfully firing and falsely accusing employee); Webb v. Ohio Cas. Ins. Co. (Apr. 16, 1990), Butler App. No. CA 89-07-109, unreported (finding legitimate criticism of employee work performance did not constitute infliction of emotional distress). By presenting evidence that none of Stanley's allegations were sufficient to make out a prima facie case, Defendants successfully discharged their burden under Civ. R. 56(C).
Since Defendants had met their burden, Stanley now had the responsibility to rebut Defendants' position and demonstrate there was a genuine issue of material fact for trial. Civ. R. 56(E);Dresher v. Burt (1996),
Stanley now attempts on appeal to put forth evidence supporting his claim for intentional infliction of emotional distress against Defendant Baker. However, since the issue was not raised in the trial court, it is considered waived and he cannot raise it for the first time on appeal. Maust, supra
(citations omitted); Stores Realty Co. v. Cleveland (1975),
Accordingly, the trial court did not err in sustaining Defendants' motion for reconsideration on the intentional infliction of emotional distress claim and thus, Stanley's fourth assignment of error is overruled.
In his brief, Stanley claims there were two errors in granting this motion to dismiss. First, he contends the court did not consider the additional allegations made in his complaint that (1) Defendants forced him to retire, and (2) Defendants continued to retaliate against him from the date of his retirement until the present. Second, Stanley argues that the court erred in considering the evidence submitted with Defendants' previously filed summary judgment motion as there was no notice given that the motion to dismiss was being converted to a Civ. R. 56 motion for summary judgment.
The first part of Stanley's initial argument was resolved in our discussion of his first assignment of error. Both judicial estoppel and failure to comply with the whistleblower statute substantiate the court's decision to dismiss this claim, regardless of the supplemental allegation that his "forced" retirement was retaliatory in his refiled complaint. Further, Stanley's bare allegation that Defendants have continued to retaliate since his retirement is not protected by the statute. Specifically, R.C.
In his second argument, Stanley fails to acknowledge that the motion filed by Defendants was a motion to dismiss or in thealternative a motion for summary judgment. A trial court is not required to give notice to the parties of its conversion to a motion for summary judgment if the motion is so styled. Walker v.Associated Estates Realty Corp. (Sept. 24, 1998), Cuyahoga App. No. 74271, unreported, p. 2. Further, no notice is required if the opposing party acknowledges the dual nature of the motion.Applegate v. Fund for Constitutional Govt. (1990),
Moreover, it is not relevant that the trial court styled its decision as granting Defendants' motion to dismiss. When a trial court refers to evidentiary materials outside the pleadings in its decision, it indicates that a Civ. R. 56 motion for summary judgment was granted instead of a Civ. R. 12(B) (6) motion to dismiss. Nozik v. Mentor Lagoons Yacht Club (1996),
Since both parties had notice of the dual nature of the motion, and the trial court in effect granted the alternative summary judgment motion, the trial court did not err in its decision. Accordingly, Stanley's fifth assignment of error is hereby overruled.
Judgment affirmed.
WOLFF, J., and FAIN, J., concur.
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HON. MICHAEL HALL