Pelletier v. Rumpke Container Serv., C-000258.

• Decision Date: 30 March 2001
• Docket Number: No. C-000258.,C-000258.
• Citation: 753 NE 2d 958,142 Ohio App.3d 54
• Parties: PELLETIER, Appellee, v. RUMPKE CONTAINER SERVICE, Appellant.
• Court: Ohio Court of Appeals

142 Ohio App.3d 54

753 NE 2d 958

PELLETIER, Appellee, v. RUMPKE CONTAINER SERVICE, Appellant.

No. C-000258.

Court of Appeals of Ohio, First District, Hamilton County.

Decided March 30, 2001.

Freking & Betz, Randolph H. Freking and Kelly Mulloy Myers, for appellee.

Keating, Muething & Klekamp, P.L.L., Louis F. Gilligan and Paul D. Dorger, for appellant. Per Curiam.

Defendant-appellant Rumpke Container Service appeals the trial court's denial of its motions for a directed verdict, judgment notwithstanding the verdict, and a new trial following the judgment entered in favor of its former employee, plaintiff-appellee Michael D. Pelletier, on his claims for age discrimination and wrongful discharge in violation of public policy.

FACTS AND PROCEEDINGS

In August 1998, Pelletier filed suit against Rumpke, alleging claims for state age and disability discrimination and wrongful discharge in violation of public policy. Rumpke was subsequently granted summary judgment on Pelletier's disability-discrimination claim and on the aspects of Pelletier's wrongful-discharge claim that were predicated on disability discrimination and retaliation for filing a worker's compensation claim. Pelletier's remaining claims for age discrimination and wrongful discharge relating to the alleged age discrimination were heard by a jury in January 2000.

The evidence presented at trial demonstrated that Pelletier was a longstanding employee of Rumpke, having worked for the company in one capacity or another for approximately twenty years. In 1996, he was working as a truck driver at Rumpke's Georgetown, Ohio facility and was forty-six years old. According to all accounts, he was a skilled driver and a good employee with no history of attendance problems.

On Wednesday, August 14, 1996, however, Pelletier was discharged by Rumpke after he had failed to timely report to work on that day and on the prior two days. Rumpke claimed that Pelletier's discharge was mandated by a provision of its attendance policy referred to as "no call/no show," which provided that "employees who [were] absent for three consecutive working days without notifying their supervisor or manager [were to] be released as voluntary quits." Rumpke's attendance policy also included the following relevant provisions: (1) that managers had "the final decision" as to whether an absence was considered excused or unexcused and (2) that, in dealing with attendance issues, "a manager [was to] consider all the facts and circumstances of a particular case, including the employee's overall work, and prospects for future improvement and maintenance of an acceptable record."

Pelletier did not dispute that he had failed to report to work on the days in question. He claimed, however, that he had believed he was scheduled to be on vacation that week, that no one from Rumpke had called him regarding his unexplained absences, and that he had only discovered that Rumpke had considered him absent when he happened to call the office on Wednesday, August 14, to inquire as to whether his vacation paycheck was available.

It is undisputed that the scheduling of vacation time was handled fairly informally at the Georgetown facility. Vacation requests were made verbally to dispatch supervisor James Gatts and were granted by him according to seniority. Gatts initially recorded the dates in a small pocket calendar, but once each employee had chosen vacation time, he transferred the vacation schedule to a large calendar that was displayed on a wall in the dispatch office.

Although Gatts agreed that Pelletier was to be on vacation in August, he asserted that Pelletier's vacation had not been scheduled until the week of August 19. Gatts recalled that he and Pelletier had discussed and scheduled this vacation in May 1996. According to him, Pelletier had initially requested to take vacation the week of August 12. But, because another, more senior employee had already scheduled a vacation that week, Pelletier opted to schedule his vacation for the week of August 19. In addition, Gatts claimed that he had spoken with Pelletier on August 10, 1996, and had' verified that he would be on vacation the week of August 19. Furthermore, Gatts's pocket and wall calendars indicated that Pelletier was to be on vacation the week of August 19.

Moreover, Gatts questioned the legitimacy of Pelletier's August 14 telephone call regarding his vacation paycheck. According to Gatts, vacation paychecks were always available on the Thursday preceding an employee's vacation. Therefore, Gatts maintained, the fact that Pelletier's check had not been available prior to August 12 should have prompted concern in Pelletier if he truly believed his vacation was scheduled for August 12.

Pelletier maintained that Gatts had things backwards, that he had initially requested the week of August 19 for vacation, but had been granted vacation for the week of August 12. And, with regard to the vacation paycheck, Pelletier explained that, several years previously, his vacation paycheck had been available only on the Wednesday of the week of his vacation. Therefore, it had not concerned him when his check had not been available on the Thursday prior to vacation in this instance.

Furthermore, Pelletier contended, even if he had been mistaken as to the date of his vacation and was technically in violation of the "no call/no show" policy, other provisions of Rumpke's attendance policy gave a manager discretion to excuse an absence and required the manager to consider the facts and circumstances of the case (including the employee's overall work history) in dealing with an attendance problem.

Pelletier maintained that the circumstances of his case, specifically the inadvertent nature of his absences and his exemplary work history, demanded a mitigation of discipline. He claimed that Rumpke's refusal to consider these circumstances was contrary to company policy and practice, as well as demonstrative of Rumpke's desire to fire him unlawfully. In support of this assertion, Pelletier presented evidence of a number of instances in which Rumpke, after considering the overall circumstances, had opted to impose lesser discipline on younger employees who had violated aspects of the attendance policy.

Rumpke maintained, however, that the instances cited by Pelletier did not involve violations of the "no call/no show" policy but, rather, involved violations of other provisions of the attendance policy, such as being tardy or absent on multiple, nonconsecutive occasions. According to Rumpke, the "no call/no show" policy was a unique aspect of its attendance policy that, unlike other provisions, was uniformly implemented without consideration of mitigating circumstances. Accordingly, although the company had sometimes subjected employees who had violated other provisions of the attendance policy to lesser discipline than that outlined in the attendance policy, it had in no instance not terminated an employee who had violated the "no call/no show" policy.

As further evidence of discrimination, Pelletier pointed to Rumpke's failure to telephone him following his unscheduled absences. Pelletier suggested that this was a deliberate attempt by Rumpke to lull him into violating the "no call/no show" policy so that it could fire him under that pretext. Pelletier pointed to Gatts's handwritten notes of the incident, which reflected that Melissa Prybal, district manager of the Georgetown facility, had suggested on August 12 that Gatts telephone Pelletier to inquire about his absence. The notes further reflected that, after speaking with Larry Stone, the general manager of Rumpke, Prybal had instructed Gatts not to telephone Pelletier. Prybal later included Gatts's notes in a typewritten summary of the incident that she provided to the human-resources department. In doing so, she copied the notes verbatim, with the exception of Gatts's references to her comments regarding whether Pelletier should be contacted, which she excluded.

Both Gatts and Stone asserted that it was company policy not to call employees at home regarding attendance problems. Further, Prybal maintained that she had deleted the references to telephoning Pelletier because she had not wanted others in the company to know that she had been unaware of the policy of not calling employees at home.

Finally, Pelletier maintained that Rumpke's discriminatory intent was further demonstrated by the fact that it had replaced him with Jim Light, who was only thirty-six years old. Rumpke argued, however, that Light had not "replaced" Pelletier. It claimed that Pelletier's work had been reassigned among various employees, including Light.

At the close of the evidence, Rumpke made a motion for a directed verdict on the claims, which was denied by the trial court. Rumpke also unsuccessfully objected to the issue of punitive damages being submitted to the jury. After completing its deliberations, the jury returned a verdict of $150,000 in compensatory damages and $350,000 in punitive damages in favor of Pelletier on his age-discrimination claim. Thereafter, the trial court journalized an entry reflecting the jury's verdict, as well as a judgment in favor of Pelletier on the wrongful-discharge claim, and an award of $64,211 in attorney fees and $5,259.64 in costs.

Following the trial court's denial of its post-trial motions for judgment notwithstanding the verdict and for a new trial, Rumpke filed the instant appeal. In its four assignments of error, Rumpke asserts that the trial court erred in (1) denying its motions for a directed verdict and judgment notwithstanding the verdict on Pelletier's age-discrimination claim, (2) denying its motion for judgment notwithstanding the verdict on the issues of punitive damages and attorney fees, (3) denying its motion for a new trial based on the weight of the evidence with respect to the age-discrimination claim, and (4) entering judgment in favor of Pelletier...