Timothy Wilmot v. Forest City Auto Parts

• Decision Date: 22 June 2000
• Docket Number: 75945,00-LW-2974
• Parties: TIMOTHY WILMOT, et al., Plaintiffs-appellants v. FOREST CITY AUTO PARTS, et al., Defendants-appellees CASE
• Court: United States Court of Appeals (Ohio)

TIMOTHY WILMOT, et al Plaintiffs-appellants v. FOREST CITY AUTO PARTS, et al Defendants-appellees

No. 75945.

00-LW-2974 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

June 22, 2000

Civil appeal from Common Pleas Court, Case No. CV-348146.

For plaintiffs-appellants: LOUIS J. LICATA, ESQ., ALISON C RUTHERFORD, ESQ., LICATA & ASSOCIATES, 6480 Rockside Woods Blvd., S., Suite 390, Independence, Ohio 44131.

For defendants-appellees: ARETTA K. BERNARD, ESQ., SCOTT SALSBURY, ESQ., ROETZEL & ANDRESS, 222 South Main Street, Suite 400, Akron, Ohio 44308.

OPINION

KARPINSKI J.

Plaintiffs-appellants Timothy Wilmot and Eugene Krywyj filed this action against defendants-appellees Forest City Auto Parts (hereafter "FCAP") and the Tyler Corporation following their separation from employment with FCAP. Wilmot and Krywyj each contend that FCAP unlawfully retaliated against them and wrongfully discharged them in violation of Ohio public policy. Additionally, Wilmot contends that FCAP discriminated against him on account of his age. Wilmot and Krywyj further assert that because the Tyler Corporation was their "joint employer" with FCAP, Tyler shared liability with FCAP for the latter's unlawful employment practices.

The trial court awarded summary judgment in favor of FCAP and the Tyler Corporation on all claims, from which judgment Wilmot and Krywyj bring this joint appeal. We conclude that the Tyler Corporation was correctly awarded a summary judgment, but that genuine issues of material fact precluded a summary judgment in favor of FCAP on the claims asserted by Wilmot and Krywyj. Accordingly, the judgment is affirmed in part and reversed in part and the matter is remanded for further proceedings.

I

A. WILMOT

Timothy Wilmot began his employment with FCAP in 1976. From May 1978 until February 1995, Wilmot managed Store No. 5. In 1995, Robert Snyder, the thirty-year-old manager of Store No. 35, vacated that position to become Regional Manager for the Central West Region. Wilmot, then age forty-two, accepted a promotional transfer to manage, under Snyder's supervision, Store No. 35. Store No. 35 was larger than Store No. 5 in terms of sales volume, inventory, and customer count.

Friction soon developed between Snyder and Wilmot over the management of Store No. 35. Among other things, Snyder terminated employees without Wilmot's knowledge or approval; transferred employees to other stores; required Wilmot to employ Snyder's father at an hourly rate Wilmot believed was excessive; gave a subordinate authority to hire and fire employees; and imposed a training schedule Wilmot believed was unreasonable. At the same time, Snyder and Wilmot met regularly to discuss the performance of Store No. 35. According to Snyder, Wilmot was not meeting FCAP's performance goals. For his part, Wilmot maintains that the entire FCAP chain experienced a decline in sales, so his failure to meet FCAP's goals was not unique. Snyder warned that Wilmot would be replaced as manager of Store No. 35 if his performance did not improve. Wilmot says, however, Vivian Root, the director of operations who attended meetings with Snyder and Wilmot, never indicated Wilmot's job was in jeopardy.

On March 26, 1996, Snyder ordered Wilmot to report to FCAP's

corporate office but would not give a reason. Upon his arrival,

Ms. Root introduced Wilmot to attorney Lisa Kainec. Kainec then

met with Wilmot privately and questioned him about age

discrimination at FCAP. FCAP was then defending itself in federal

court against an age discrimination lawsuit known as the Carrell

case and sought affidavits to shore up its defense. When Kainec

asked Wilmot if there was any discrimination at FCAP, Wilmot said there was and that "we were told to hire the young people." According to Wilmot, Kainec drafted under Wilmot's name an affidavit which suggested that there was no age discrimination at FCAP. Wilmot says he refused to accept any averment which denied

that discrimination had occurred, because he believed such

averments were "not true." During the course of the interview,

Kainec left the room to speak with Ms. Root and, returning a short

time later, Kainec completed drafting an affidavit that Wilmot did

accept as true. Ms. Root then told Wilmot he needed to sign the

affidavit before he returned to Store No. 35. Believing he would be in trouble if he did not sign the affidavit, Wilmot signed it and requested a copy, but Root told him he did not need a copy.

One week later, on April 2, 1996, Snyder and Root removed Wilmot as manager of Store No. 35, replacing him with a thirty-one-year-old. Snyder and Root offered to reassign Wilmot to Store No. 12, where he would have reduced responsibility and reduced pay. BelievIng the offer to be an unacceptable demotion, Wilmot refused the transfer and left his employment with FCAP.

B. KRYWYJ

Eugene Krywyj began his employment with FCAP in 1978 and, from 1979 until April 1996, managed Store No. 22. When Snyder became Regional Manager for the Central West Region in 1995, he became Krywyj's supervisor as well. According to Snyder and Root, Krywyj failed to meet FCAP's performance goals. Snyder and Root removed Krywyj from an inventory committee to allow him to focus more on his store. Because he had previously been removed and then returned to the committee, Krywyj construed the removal to be only a motivational technique because his supervisors never wanted him "to get comfortable."

On March 26, 1996, Snyder ordered Krywyj to report to FCAP's corporate offices, but would not say why. Snyder reassured KrywyJ, however, that his job was not in jeopardy. Upon Krywyj's arrival at the corporate offices, Ms. Root introduced Krywyj to attorney Kainec and told him he had to discuss what he knew about the Carrell age discrimination lawsuit. Krywyj says he reluctantly told attorney Lisa Kainec that FCAP did discriminate and had instructed managers to target "a particular age group of 18 to 24-year old individuals to work on our counters." Krywyj says she drafted under his name an affidavit that rephrased his statements to favor FCAP and, when Krywyj took a break, he observed Ms. Root ask Ms. Kainec, "Do we have anything yet?" Believing he would lose his job unless he signed the affidavit Kainec was drafting for him, Krywyj says he signed the affidavit under duress. Krywyj later testified that it was untrue for him to aver in the affidavit that FCAP did not "look to hire any persons of any particular age group and that FCAP did not "refuse to hire anyone due to their age."

One week later, on April 2, 1996, Snyder and Root met with Krywyj and informed him that he was being replaced as manager for Store No. 22. They offered to transfer Krywyj to Store No. 2 but, believing the transfer to be an unacceptable demotion, Krywyj rejected the offer and left his employment with FCAP.

II

Wilmot originally filed suit on his own, but he voluntarily dismissed that case. Wilmot and Krywyj then filed this action jointly against FCAP and the Tyler Corporation. Wilmot maintained claims for age discrimination, retaliation, and wrongful discharge in violation of Ohio public policy. Krywyj maintained claims for retaliation and wrongful discharge in violation of Ohio public policy. The trial court granted summary judgment in favor of FCAP and the Tyler Corporation on all claims.

The appeal contends that the trial court erred in awarding summary judgment to FCAP and the Tyler Corporation. We review the trial court's judgment de novo and use the same standard that the trial court applies under Civ.R. 56(C). Lee v. Sunnyside Honda (1998), 128 Ohio App.3d 657, 660; N. Coast Cable L.P. v. Hanneman (1994) 98 Ohio App. 3d 434, 440. Under Civ.R. 56 (C) summary judgment is appropriate when the moving party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) after construing the evidence most favorably for the party against whom the motion is made, reasonable minds can reach only a conclusion that is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 369-3-70; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

The moving party bears the initial responsibility of informing the court of the basis for the motion and identifying those portions of the record which support the requested judgment. Vahila v. Hall (1997), 77 Ohio St.3d 421, 430. If the moving party discharges this initial burden, the party against whom the motion is made then bears a reciprocal burden of specificity to oppose the motion. Id. See, also, Mitseff v. Wheeler (1988), 38 Ohio St.3d 112. In deciding whether an evidentiary conflict exists so as to preclude summary judgment, the evidence and the inferences to be drawn from the underlying facts contained in the evidentiary materials must be construed in a light most favorable to the party opposing the motion. Hannah v. Dayton Power Light Co. (1998), 82 Ohio St.3d 482, 485; Turner v. Turner (1993), 67 Ohio St.3d 337, 341.

For their appeal, Wilmot and Krywyj present five assignments of error. While the first four assignments of error assert substantive claims against FCAP and the Tyler Corporation collectively, the only proffered grounds for Tyler's liability is that it is a "joint employer," as argued in the fifth assignment of error. We will initially address the fifth assignment of error because we axe convinced that the Tyler Corporation was correctly awarded a summary judgment. The remaining four assignments of error will then be understood to concern only FCAP.

III

The fifth assignment of error states:

THE TRIAL COURT ERRED BY GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT

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