Sells v. Holiday Mgmt. Ltd.
| Decision Date | 17 November 2011 |
| Docket Number | No. 11AP-205,C.P.C. No. 09CVH-12-19273,11AP-205 |
| Citation | 2011 Ohio 5974 |
| Parties | Raymond Sells, Plaintiff-Appellant, v. Holiday Management Limited, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
(REGULAR CALENDAR)
DECISION
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.
{¶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 Article I, Section 10, of the Ohio Constitution, and R.C. 2705.02.1
{¶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.
{¶4} Sells filed a timely notice of appeal and now raises the following assignments of error:
{¶5} In his first assignment, Sells contends 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 Civ.R. 56(C), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Accordingly, summary judgment is appropriate only under the following circumstances: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the non-moving party. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66. {¶7} "[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 before the trial court 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, 292, 1996-Ohio-107. Once the moving party meets its initial burden, the non-movant must set forth specific facts demonstrating a genuine issue for trial. Id. at 293. Because summary judgment is a procedural device to terminate litigation, courts should award it cautiously after resolving all doubts in favor of the non-moving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95, quoting Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2.
{¶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.
{¶9} To succeed on a claim of wrongful discharge in violation of public policy, a plaintiff must establish the following four elements:
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 R.C. 2945.451, which prohibits an employer from discharging or penalizing an employee because of absences for attendance at criminal court proceedings pursuant to a subpoena. A knowing violation of R.C. 2945.451 constitutes contempt of court.
{¶11} HML's arguments in support of summary judgment focused on the jeopardy and causation elements of Sells' claim. As to the jeopardy element, HMLargued that there is no need to recognize a wrongful discharge action to promote the public policy of R.C. 2945.451 because the General Assembly enacted a statutory remedy to promote that policy by making a knowing violation of that section punishable as contempt of court. For purposes of summary judgment, the trial court assumed that Sells satisfied the jeopardy element, but declined to discuss it.
{¶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 R.C. 2945.451. The trial court rejected Sells' argument and, instead, found "overwhelming" evidence that Sells' termination was not motivated by absences due to subpoenas, as well as "clear" evidence of numerous other reasons for Sells' termination. The court identified those reasons as follows:
* * * (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 "violation of [its] rules and procedures or for unacceptablebehavior" on February 7, 2008. The disciplinary policy contains four steps, consisting of oral counseling, written counseling, written warning, and termination, but states that it "is not a mandatory step-by-step procedure" and that, "[a]t the discretion of [HML], disciplinary action or termination can result immediately." The policy illustratively lists types of conduct that may subject an employee to immediate termination, but also states that "other types of misconduct can result in immediate termination."
{¶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 date 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 t...
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