Marzano v. Struthers City Sch. Dist. Bd. of Educ.
| Decision Date | 21 September 2017 |
| Docket Number | NO. 16 MA 0179,16 MA 0179 |
| Citation | 2017 Ohio 7768,97 N.E.3d 1116 |
| Parties | Martina MARZANO, Plaintiff–Appellant v. STRUTHERS CITY SCHOOL DISTRICT BOARD OF EDUCATION, et al., Defendants–Appellees |
| Court | Ohio Court of Appeals |
{¶ 1} Plaintiff–Appellant Martina Marzano appeals the trial court's summary judgment in favor of Defendant–Appellees Struthers City School District Board of Education, former Superintendent Joseph Nohra and Lead Elementary School Principal Dennis Hynes, on her intentional infliction of emotional distress (IIED) claim. Marzano asserts that the trial court erred by concluding that Marzano's claim is governed by the terms and conditions of a collective bargaining agreement pursuant to which, her sole and exclusive remedy is the grievance procedure; and that thus it lacked subject matter jurisdiction. As Marzano's sole assignment of error is meritless the judgment of the trial court is affirmed.
{¶ 2} Marzano was employed by Struthers as a paraprofessional/personal attendant for special needs children and is a member of The Ohio Association of Public School Employees, Ohio Local 4/AFSCME–AFL–CIO and its Local # 261. Marzano's employment is governed by the terms and conditions of a CBA between the Union and Struthers, which, pertinent to this appeal, contains a grievance procedure. The CBA defines a grievance as "a disagreement involving a work situation or employee(s) belief that there has been a violation, misinterpretation, or misapplication of the written contract entered into between the Board and OAPSE, or regulations regarding working conditions."
{¶ 3} Marzano filed a complaint, asserting a single cause of action for IIED, stating she suffered "serious emotional and psychological harm" based upon the "outrageous" conduct of Struthers, by and through its employees, Nohra and Hynes, and on that basis, she sought compensatory and punitive damages.
{¶ 4} Appellees filed a joint motion to dismiss the complaint on two grounds. First, pursuant to Civ.R. 12(B)(1), the trial court lacked subject matter jurisdiction because under R.C. 4117.10(A) her IIED claim was governed by the parties' CBA which dictates that the grievance procedure is her exclusive remedy. Second, pursuant to Civ.R. 12(B)(6), Marzano's complaint failed to state a claim for IIED because all of her allegations constituted routine and common complaints about workplace conditions that, as a matter of law, do not qualify as "extreme and outrageous" conduct. Appellees supported the motion with three exhibits: the CBA between Struthers and the Union; an Employee Information Sheet regarding Marzano; and the affidavit of Joseph Nohra, in which he averred, among other things, that Marzano did not file a grievance as required by the CBA.
{¶ 5} The magistrate issued an order sua sponte converting Appellees' motion to dismiss to a motion for summary judgment since it contained "matters outside the pleadings." Marzano failed to challenge this order; instead she filed a brief in opposition without any evidentiary support to counter Appellees' evidentiary offerings, and continued to treat Appellees' motion as a motion to dismiss, despite the magistrate converting the motion to one for summary judgment.
{¶ 6} The trial court granted summary judgment in favor of Appellees, ruling that Marzano's claim is governed by the terms and conditions of the CBA, pursuant to which, her exclusive remedy is the grievance procedure contained therein. Accordingly, the trial court concluded it lacked subject matter jurisdiction to consider Marzano's IIED claim. The trial court did not address Appellees' alternative argument that Marzano's allegations constituted complaints about routine workplace conditions that, as a matter of law, do not qualify as "extreme and outrageous" conduct sufficient to state an IIED claim.
{¶ 7} In her sole assignment of error, Marzano asserts:
* * * [T]he trial court improperly determined that because of the existence of a collective bargaining agreement it lacked subject matter jurisdiction over Marzano's Complaint that alleged intentional infliction of emotional harm.
{¶ 8} Marzano challenges the trial court's decision to grant summary judgment, which is subject to de novo review. Parenti v. Goodyear Tire & Rubber Co. , 66 Ohio App.3d 826, 829, 586 N.E.2d 1121 (9th Dist. 1990). Summary judgment is only proper when the movant demonstrates that, viewing the evidence most strongly in favor of the nonmovant, reasonable minds must conclude no genuine issue as to any material fact remains to be litigated and the moving party is entitled to judgment as a matter of law, based upon the filing contemplated by the rule. Civ.R. 56. "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt , 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). The nonmoving party has the reciprocal burden of specificity and cannot rest on the mere allegations or denials in the pleadings. Id . at 293, 662 N.E.2d 264.
{¶ 9} Turning first to Marzano's procedural argument, she contends the trial court erroneously converted Appellees' motion to dismiss to one for summary judgment. Although the distinction is meaningless with regard to our standard of review—de novo—the governing procedural law for these motions is different. Compare motions under Civ.R. 56(C), as discussed above, with those under Civ.R. 12(B)(1) (), and Civ.R. 12(B)(6) () Vos v. State , 2017-Ohio-4005, 91 N.E.3d 217, ¶ 15 (7th Dist.).
{¶ 10} However, Marzano failed to raise this issue to the trial court by filing a motion to set aside the magistrate's order, pursuant to Civ.R. 53(D)(2)(b), thus we review for plain error only.
{¶ 11} Plain error review is not favored in civil cases and should only be used in the "extremely rare case involving exceptional circumstance 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." Kirin v. Kirin , 7th Dist. No. 08 MA 243, 2011-Ohio-663, 2011 WL 497080, ¶ 19, quoting Goldfuss v. Davidson , 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), at paragraph one of the syllabus.
{¶ 12} The trial court's decision to convert the motion to dismiss to a motion for summary judgment was not error, let alone plain error. When deciding a Civ.R. 12(B)(1) motion to dismiss for lack of jurisdiction the trial court is not confined to the allegations in the complaint and may consider material pertinent to the inquiry without converting it to a motion for summary judgment. See Wilkerson v. Howell Contractors , 163 Ohio App.3d 38, 2005-Ohio-4418, 836 N.E.2d 29, ¶ 9 (1st Dist.). However, here Appellees filed their motion pursuant to both Civ.R. 12(B)(1)and Civ.R 12(B)(6) for failure to state a claim upon which relief can be granted.
When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.
{¶ 13} Appellees attached evidence to their motion that fell outside of that presented in the complaint, specifically the CBA between Struthers and the Union, an Employee Information Sheet regarding Marzano, and the affidavit of Joseph Nohra. Accordingly, the trial court properly converted the motion to a motion for summary judgment; doing so was not error, let alone plain error.
{¶ 14} Turning to Marzano's substantive arguments, "R.C. Chapter 4117 establishes a framework for resolving public sector labor disputes by creating procedures and remedies to enforce those rights." Fischer v. Kent State Univ. , 2015-Ohio-3569, 41 N.E.3d 840, ¶ 18 (10th Dist.). R.C. 4117.10(A) provides that a collective bargaining agreement between a public employer and the bargaining unit "controls all matters related to the terms and conditions of employment and, further, when the collective bargaining agreement provides for binding arbitration, R.C. 4117.10(A) recognizes that arbitration provides the exclusive remedy for violations of an employee's employment rights." Gudin v. Western Reserve Psychiatric Hosp ., 10th Dist. No. 00AP–912, 2001 WL 664389 (June 14, 2001).
{¶ 15} Specifically, R.C. 4117.10(A) states, in pertinent part:
An agreement between a public employer and an exclusive representative entered into pursuant to this chapter governs the wages, hours, and terms and conditions of public employment covered by the agreement. If the agreement provides for a final and binding arbitration of grievances, public employers, employees, and employee organizations are subject solely to that grievance procedure and the state personnel board of review or civil service commissions have no jurisdiction to receive and determine any appeals relating to matters that were the subject of a final and...
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