Zindroski v. Parma City Sch. Dist. Bd. Of Educ.
| Decision Date | 08 July 2010 |
| Docket Number | No. 93583,Case No. CV-600531,93583 |
| Parties | BARBARA ZINDROSKI PLAINTIFF-APPELLANT v. PARMA CITY SCHOOL DISTRICT BOARD OF EDUCATION, ET AL. DEFENDANTS-APPELLEES |
| Court | Ohio Court of Appeals |
{¶ 1} Plaintiff-appellant, Barbara Zindroski, appeals from a trial court's order granting summary judgment to defendant-appellee, Parma City School District Board of Education ("Board"), after finding that her claims were barred by the statute of limitations. She raises two assignments of error for our review, i.e., that the trial court erred in granting summary judgment to the Board after finding that her (1) promissory estoppel and (2) gender discrimination claims were barred by a six-year statute of limitations.
{¶ 2} Finding merit to her appeal, we reverse and remand.
Procedural and Factual Background
{¶ 3} Zindroski was hired by the Board in 1979 as a dental assistant vocational teacher. Although she did not have a bachelor's degree, she was certified in the field and had eight years of experience. Based on her experience, the Board hired Zindroski as a Class II teacher, which meant that she would receive a starting salary commensurate with having a bachelor's degree.
{¶ 4} According to Zindroski, the Board promised her when she was hired that if she obtained a bachelor's degree, then she would be moved to the master's salary level. Zindroski claims that based on the Board's promise, she entered college in 1980. When she obtained her bachelor's degree in 2002, she notified Superintendent Kurt Stanic of her attainment and requested that she be advanced to the master's degree pay schedule.
{¶ 5} The Board formally denied her reclassification request on September 24, 2002, informing her that a 1993 class action grievance filed by the Parma Education Association ("PEA") conclusively settled the matter. According to the Board, the PEA agreed in 1994 that vocational teachers would advance to the master's salary only upon actual attainment of a master's degree, and that the terms of the settlement were incorporated into the 1996 to 1999 Collective Bargaining Agreement ("CBA").
{¶ 6} In September 2006, four years after Zindroski's request for salary advancement was denied, she filed an action against the Board alleging claims of promissory estoppel and gender discrimination.
{¶ 7} Rather than answer Zindroski's complaint, the Board moved to dismiss the complaint and/or stay the proceedings pending arbitration. The trial court granted the motion to stay the proceedings pending arbitration in February 2007.
{¶ 8} In October 2007, Zindroski moved to vacate the stay and/or to show cause because the Board had refused her requests to arbitrate the matter. On February 8, 2008, the trial court vacated the stay and returned the case to the active docket. The Board appealed the vacation to this court. We dismissed the case for want of a final appealable order. The Board further appealed ourdismissal to the Ohio Supreme Court, which declined jurisdiction in October 2008.
{¶ 9} With the case remanded to the trial court, the Board answered Zindroski's complaint on December 2, 2008. In its answer, the Board asserted 35 affirmative defenses, but not that the claims were barred by the statute of limitations.
{¶ 10} The Board moved for summary judgment in February 2009. Zindroski opposed the Board's motion. The Board replied to Zindroski's opposition brief, raising, for the first time, the statute of limitations issue (as well as several others). Because the Board raised new issues in its reply brief, Zindroski filed a surreply brief with leave of court, responding to the Board's new arguments.
{¶ 11}In June 2009, the trial court granted summary judgment to the Board, finding that Zindroski's claims were barred by the statute of limitations.
{¶ 12} It is from this judgment that Zindroski appeals.
Standard of Review
{¶ 13} In reviewing a trial court's ruling on a motion for summary judgment, this court applies the same standard a trial court is required to apply in the first instance, i.e., whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Parenti v. Goodyear Tire & RubberCo. (1990), 66 Ohio App.3d 826, 829, 586 N.E.2d 1121. In applying this standard, evidence is construed in favor of the nonmoving party, andsummary judgment is appropriate if reasonable minds could only conclude that judgment should be entered in favor of the movant. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 686-87, 653 N.E.2d 1196. Before the trial court may consider whether the moving party is entitled to judgment as a matter of law, however, it must determine whether there are genuine issues of material fact for trial. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶12.
{¶ 14} Under Civ.R. 56, the moving party "'bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims.'" Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, quoting Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. The nonmoving party then has a reciprocal burden to set forth specific facts, by affidavit or as otherwise provided by Civ.R. 56(E), which demonstrate that there is a genuine issue for trial. Byrd at ¶10.
Statute of Limitations
{¶ 15} In this case, there is no dispute that the statute of limitations on both of Zindroski's claims, promissory estoppel and sex discrimination, is six years. The issue is when the six-year limitations period commenced.
{¶ 16} The Board argues, and the trial court agreed, that Zindroski's claims accrued on September 1, 1996, the date the 1996 to 1999 CBA went into effect. Zindroski maintains that the time to file her claims began to run on September 24, 2002, the date the Board formally denied her advancement to the master's salary schedule.
A. Pleading an Affirmative Defense
{¶ 17} The record reveals that the Board never raised the affirmative defense of statute of limitations in its answer. Nor did the Board raise the defense in its summary judgment motion. It was not until its reply to Zindroski's brief opposing summary judgment where the Board first argued that Zindroski's claims were barred by the statute of limitations.
{¶ 18} The law in Ohio is clear: the defense of statute of limitations is an affirmative defense that must be raised in a responsive pleading under Civ.R. 8(C), or it will be considered waived. BP Communications Alaska, Inc. v. Cent. Collection Agency (2000), 136 Ohio App.3d 807, 813, 737 N.E.2d 1050, citing Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55, 320 N.E.2d 668. It is also established that "Ohio law prohibits a defendant from asserting an affirmative defense for the first time in a motion for summary judgment." Eulrich v. Weaver Brothers, Inc., 165 Ohio App.3d 313, 2005-Ohio-5891, 846 N.E.2d 542, ¶12, citing Carmen v. Link, 119 Ohio App.3d 244, 250, 695 N.E.2d 28.
{¶ 19} Zindroski, however, did not raise waiver with the trial court, nor does she argue it here. She did request leave to file a surreply brief, which the trial court granted, where she responded to the Board's new arguments set forth in its reply brief. Accordingly, we find there was no prejudice to Zindroski as a result of the Board's failure to raise the affirmative defense in its answer.
B. Accrual Date
1. Sex Discrimination under R.C. 4112
{¶ 20} The Board cites Delaware State College v. Ricks (1980), 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431, in support of its contention that the accrual date in this case was in 1996 when the 1996 to 1999 CBA went into effect.
{¶ 21} In Ricks, the plaintiff was a university professor who had been denied tenure. The college, like many colleges and universities, had a policy that junior faculty members who were not offered tenure were not immediately discharged, but were offered "terminal contracts" to teach for one additional year. The plaintiff accepted the college's offer of a one-year terminal contract, and sued for age discrimination shortly after his last day of employment. The plaintiff alleged that his cause of action did not accrue until that time. The college maintained that the allegedly discriminatory action was its denial of tenure, not the ultimate expiration of the plaintiff's one-year terminal contract.
{¶ 22} The United States Supreme Court agreed with the college, characterizing the termination of the plaintiff's employment as "a delayed, butinevitable, consequence of the denial of tenure." Id. at 257-258. The court went on to explain that, in order for the limitations period to commence at the date of discharge, "Ricks would have had to allege and prove that the manner in which his employment was terminated differed discriminatorily from the...
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