Smith v. Allstate Ins. Co.
| Decision Date | 06 November 2019 |
| Docket Number | No. 29339,29339 |
| Citation | 135 N.E.3d 828,2019 Ohio 4557 |
| Parties | Andre SMITH, Appellant v. ALLSTATE INSURANCE COMPANY, et al., Appellees |
| Court | Ohio Court of Appeals |
DONALD GALLICK, Attorney at Law, for Appellant.
EDWARD H. CHYUN and INNA SHELLEY, Attorneys at Law, for Appellee.
DECISION AND JOURNAL ENTRY
{¶1} Appellant, Andre Smith, appeals from the judgment of the Summit County Common Pleas Court granting summary judgment in favor of Appellees, Allstate Insurance Company, Starr Robinson, Deconda Cleary, Cindy Henson, and Chris Durfee (collectively "the Allstate parties"), as to his claim for retaliation. For the reasons set forth below, this Court affirms.
{¶2} Mr. Smith was hired by Allstate Insurance Company ("Allstate") on October 6, 2014. Mr. Smith was a Coaching Partner, which required him to sit with new customer service employees, listen to their calls, and provide coaching and feedback on how to handle calls.
{¶3} During the next two years, Mr. Smith, an African American male, applied for and was denied six promotions. The promoted employees were Caucasian and/or female. On November 25, 2016, Mr. Smith voiced his concerns about racial and sexual discrimination to Allstate's management.
{¶4} On the same day that Mr. Smith lodged his discrimination complaint, Starr Robinson, a Senior Manager at Allstate, learned that Mr. Smith made threatening comments to another employee. Although Ms. Robinson was a Senior Manager, there is uncontested evidence that she was not aware of Mr. Smith's discrimination complaints.
{¶5} The allegation of Mr. Smith making threatening comments was referred to Allstate's Centralized Employee Relations Team ("CERT")1 for an internal investigation. Mr. Smith was instructed not to return to work on November 27, 2016 and was placed on paid leave pending CERT's investigation into the alleged threats. CERT began its investigation on November 28, 2016, which lasted for two weeks. The CERT investigation validated that Mr. Smith made threats in the workplace and recommended he be terminated. Mr. Smith was terminated the following day, December 15, 2016. The complaint alleges Mr. Smith was "effectively terminated" on November 27, 2016 and "officially terminated" on December 9, 2016.
{¶6} Mr. Smith filed a complaint alleging retaliation and wrongful termination, discriminatory hiring practices, and multiple counts of racial and sexual discrimination. The Allstate parties moved for partial summary judgment as to Mr. Smith's retaliation and wrongful termination claim (count 8). Mr. Smith filed a brief in opposition. The trial court granted summary judgment in favor of the Allstate parties as to that claim only, but did not include the Civ.R. 54(B) certification on the order.
{¶7} The Allstate parties then filed a supplemental motion for summary judgment as to the discrimination claims in counts 1-7. Additionally, the Allstate parties filed a motion to dismiss the action for failure to prosecute based upon Mr. Smith's failure to respond to discovery and comply with the trial court's discovery orders. In lieu of responding to these motions, Mr. Smith filed a Civ.R. 41(A)(1)(a) notice of voluntary dismissal without prejudice as to "all unadjudicated claims (1 through 7)" against the Allstate parties. However, Mr. Smith's voluntary dismissal without prejudice of the remainder of his claims against the Allstate parties pursuant to Civ.R. 41(A)(1)(a) was ineffective to create a final, appealable order. See Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276, 897 N.E.2d 126, ¶ 1.
{¶8} Following the filing of Mr. Smith's notice of dismissal, the trial court entered an order which incorporated its earlier disposition of count 8 and added the Civ.R. 54(B) certification. This order converted the earlier summary judgment ruling on count 8 in favor of the Allstate parties into a final, appealable order. See Ningard v. Shin Etsu Silicones , 9th Dist. Summit No. 24524, 2009-Ohio-3171, 2009 WL 1862546, ¶ 6, 9.
{¶9} Nine days later, Mr. Smith filed a motion for reconsideration relative to the partial summary judgment against him and the Allstate parties filed a brief in opposition. The trial court did not rule on the motion for reconsideration. Mr. Smith timely appealed the judgment entries granting partial summary judgment, asserting one assignment of error.
{¶10} Mr. Smith argues that the trial court erred in granting summary judgment as to count 8 to the Allstate parties because there was no evidence in the record supporting the decision and the trial court failed to cite the evidence it relied upon when rendering its decision. Mr. Smith also argues summary judgment is improper because his trial counsel provided ineffective representation relative to conducting discovery and responding to the summary judgment motion. This Court disagrees with each of Mr. Smith's arguments.
{¶11} This Court reviews an order granting summary judgment de novo. See Bonacorsi v. Wheeling & Lake Erie Ry. Co. , 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 24, citing Doe v. Shaffer , 90 Ohio St.3d 388, 390, 738 N.E.2d 1243 (2000). Summary judgment is proper under Civ.R. 56(C) when: (1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can only reach one conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C) ; Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
{¶12} Summary judgment consists of a burden-shifting framework. The movant bears the initial burden of demonstrating the absence of genuine issues of material fact concerning the essential elements of the nonmoving party's case. Dresher v. Burt , 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. at 292-293, 662 N.E.2d 264. Once the moving party satisfies this burden, the nonmoving party has a "reciprocal burden" to " ‘set forth specific facts showing that there is a genuine issue for trial.’ " Id. at 293, 662 N.E.2d 264, quoting Civ.R. 56(E). The non-moving party may not rest upon the mere allegations or denials in the pleadings, but must point to or submit evidence of the type specified in Civ.R. 56(C). Dresher at 293, 662 N.E.2d 264 ; Civ.R. 56(E).
{¶13} On appeal, Mr. Smith contends that the trial court erred in granting summary judgment due to the complete absence of any evidence. Mr. Smith "suggests that neither the exhibits attached to [the Allstate parties'] motion for partial summary judgment nor [the] exhibits attached to [Mr. Smith's trial] counsel's ‘motion for reconsideration’ are properly before this Court." We disagree with Mr. Smith as it pertains to the Allstate parties' exhibits, but agree with respect to the exhibits attached to the motion for reconsideration.
{¶14} Mr. Smith acknowledges that there were affidavits and other documents attached to the Allstate parties' motion for summary judgment, but claims they are not "properly in the record." In his assignment of error, Mr. Smith fails to present any reason or legal authority as to why the attachments to the summary judgment motion are not proper evidentiary materials under Civ.R. 56(C) and (E) and it is not this Court's duty to create an argument for him. See App.R. 16(A)(7) ; Cardone v. Cardone , 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998) ().
{¶15} Moreover, Mr. Smith is precluded from challenging on appeal the moving parties' summary judgment evidence as he failed to make an objection to the trial court regarding any alleged nonconforming evidence. Wolford v. Sanchez , 9th Dist. Lorain No. 05CA008674, 2005-Ohio-6992, 2005 WL 3556681, ¶ 21. As Mr. Smith did not object to the Allstate parties' evidence in support of the summary judgment motion and the trial court referenced the same in its order, we will consider those affidavits and documents in our de novo review. Id. ; Brunke v. Ohio State Home Servs., Inc. , 9th Dist. Lorain No. 13CA010500, 2015-Ohio-2087, 2015 WL 3452605, ¶ 11, fn. 2.
{¶16} Next, Mr. Smith argues that the documents attached to his motion for reconsideration are not proper summary judgment evidence. We agree. Motions for reconsideration only allow relief from non-final orders. Flood Co. v. St. Paul Fire & Marine Ins. Co. , 9th Dist. Summit Nos. 21679, 2004-Ohio-1599, 2004 WL 628227, ¶ 8. As addressed above, the partial summary judgment ruling is a final, appealable order; therefore, Mr. Smith's motion for reconsideration, including the attachments thereto, is a nullity. Pitts v. Ohio Dept. of Transp. , 67 Ohio St.2d 378, 379, 423 N.E.2d 1105 (1981). See State v. Babb , 9th Dist. Summit No. 23631, 2007-Ohio-5102, 2007 WL 2812949, ¶ 5. See also State v. Helfrich , 3d Dist. Seneca, 2018-Ohio-638, 107 N.E.3d 695, ¶ 27, fn. 7 ; Ayers v. Precision Environmental Co. , 8th Dist. Cuyahoga No. 93559, 2010-Ohio-4479, 2010 WL 3721802, ¶ 22-23. Accordingly, the exhibits attached to the motion for reconsideration were not properly before the trial court, or this Court. See Babb at ¶ 5 ; Helfrich at ¶ 27, fn. 7 ; Ayers at ¶ 23.
{¶17} Mr. Smith also contends that the trial court's order prohibits a meaningful review by this Court because the trial court did not provide factual citations to any evidence in the record that supports its decision to grant partial summary judgment. Mr. Smith's reliance upon Kokoski v. Kokoski , 9th Dist. Lorain No....
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...We disagree. {¶96} R.C. 4112.02(I) is an anti-retaliation provision. Smith v. Allstate Ins. Co., 9th Dist. No. 29339, 2019-Ohio-4557, 135 N.E.3d 828, 2019 Fair Empl.Prac.Cas. (BNA) 425791, 2019 WL 5789452, ¶¶ 21-23 citing Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2......