SUPREME COURT OF OHIO CLERK OF COURT JAN 1$ 2008 W.W. GRAINGER, INC. 100 Grainger Parkway Lake...
Transcript of SUPREME COURT OF OHIO CLERK OF COURT JAN 1$ 2008 W.W. GRAINGER, INC. 100 Grainger Parkway Lake...
IN THE SUPREME COURT OF OHIO
WALLY PATTISON,
Plaintiff-Appellant, Case No. 07-1345
V.
W.W. GRAINGER, INC., et al.,
Defendants-Appellees.
On Appeal from the Cuyahoga CountyCourt of Appeals, Eighth Appellate District
APPENDIX TO MERIT BRIEF OF DEFENDANTS-APPELLEES,W.W. GRAINGER, INC. AND SAM DIMEO
Page
Complaint and First Set of Discovery Requests to Both Defendants 1-6(May 6, 2003)
Defendants' Motion for Stunmary Judgment 7-22(May 14, 2004)
Judgment Entry (Cuyahoga County) 23 - 29(June 21, 2005)
Journal Entry and Opinion (Eighth District) 30 - 34(April 24, 2006)
Notice of Dismissal of Plaintiffs Public Policy Claim Only 35-36(June 29, 2006)
Notice of Appeal 37 - 46(August 9. 2006)
Court of Appeals Judgment 47 - 55(June 21, 2007)
Civil Rule 41 and Staff Notes 56-57
IHI11I]86i0 1
JAN 1$ 2008
CLERK OF COURTSUPREME COURT OF OHIO
Respectfully submitted,
James E. Davidson (0024534) (COUIV^EL OF RECORD)Aaron L. Granger (0067562)Schottenstein, Zox & Dunn Co., L.P.A.250 West Street, Suite 700Columbus, OH 43215Telephone: (614) 462-2700Fax: (614) 462-5135i davidson(a^,szd. coma rgan¢ergszd.com
COUNSEL FOR DEFENDANTS-APPELLEES,W.W. GRAINGER, INC. AND SAM DIMEO
(Hi1 [1786.101 ii
CERTIFICATE OF SERVICE
I hereby certify that the foregoing was served this
regular U.S. mail, postage pre-paid, upon the following:
day of January, 2008, by
Caryn M. Groedel, Esq.Jennifer L. Speck, Esq.Caryn Groedel and Associates Co., LPA5910 Landerbrook Dr., Suite 200Cleveland, Ohio 44124Telephone: (440) 544-1122Fax: (440) 446-1240c rog edelna [email protected]
Attorneys for Plaintiff-Appellant
tniiii7sn.ioi 131
IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO
WALLY PATTISON21526 Aberdeen RoadRocky River, Ohio 44116
CASE NO.
Plaintiff,
V9.
W.W. GRAINGER, INC.100 Grainger ParkwayLake Forest, Illinois 60045-5201
Serve:CT Corporation System1300 E. 9'h Street, Suite 1010Cleveland, Ohio 44114
and
SAM DiMEOc/o W.W. Grainger, Inc.1035 Valley Belt Rd.Brooklyn Heights, OH 44131
Defendants.
Judge: NANCY A FUERST
IuIAII^IIWI^IIVIIIIIIIII^IIIIIIBIlllllllilll CV 03 500620
COMPLAINT AND FIRSTSET OF DISCOVERYREOUESTS TO BOTHDEFENDANTS(Jury Demand EndorsedHerein)
Now comes Plaintiff, Wally Pattison, by and through the undersigned counsel,
and for a complaint against Defendants W.W. Grainger Inc., and Sam DiMeo, states and
alleges the following:
PARTIES
I. At all times relevant herein, Plaintiff was a resident of Cuyahoga County.
2. At all times relevant herein, Defendant W.W. Grainger, Inc. (hereina8er
"Grainger") conducted business in Brooklyn Heights, Cuyahoga County, Ohio.
Appx.000001
3. At all times relevant herein, Plaintiff was employed by Defendant W.W.
Grainger, Inc. (hereinafter "Grainger") as a sales representative in the Cleveland District.
4. At all times relevant herein, Defendant Sam DiMeo was Defendant
Grainger's District Sales Manager for the Cleveland area and was Plaintiff's direct
supervisor.
VENUE
5. Venue properly lies in this Court, as all events relevant to the claims
brought herein took place in Cuyahoga County.
FACTUAL ALLEGATIONS
6. Plaintiff, age 50 at the time of his termination, is a member of a protected
class pursuant to Ohio Rev. Code § 4112.
7. Plaintiff had worked for Defendant Grainger since 1991, and worked for its
predecessor entity since approximately 1975.
8. Tn or around May 2001, Defendant Sam DiMeo became Plaintiff s direct
supervisor when Mr. DiMeo assumed the position of District Sales Manager.
9. Shortly after Defendant DiMeo became Plaintiff's supervisor, Defendant
DiMeo took numerous adverse employment actions against Plaintiff, including but not
limited to: giving Plaintiff performance wamings for not meeting goals when similarly
situated younger employees under age 40 were routinely not meeting goals and, upon
information and belief, did not receive performance warnings; telling Plaintiff there were
no available Cleveland Indians tickets for his clients and then giving the tickets to
Plaintiff's younger counterparts; taking potentially significant accounts away from
2
Appx. 000002
Plaintiff and giving them to younger counterparts; and tenninating Plaintiff s
employment on January 7, 2003, despite a significant rise in his performance numbers
shortly before his termination and despite the fact that younger, similarly situated
employees had worse sales performance numbers but were not terminated.
10. Plaintiff was qualified to perform his job duties.
11. After his termination, Plaintiffs job responsibilities were given to two
significantly younger employees.
12. PIaintiff s termination allowed Defendant Grainger to retain significantly
younger, similarly situated sales representatives, many of whom were not in the protected
class of 40 and above.
13. In addition to terminating Plaintiff, Defendants terminated or caused to
resign numerous sales representatives in the Cleveland District who were all over 40,
including but not limited to Kevin Berger, Doug Cisan, Jerry McCombs, Jim Sitko, Jim
Bourquin, and Dale Palocko.
14. Also, the sales numbers of Brian Waldron, a similarly situated but
significantly younger co-worker, were down, yet he was promoted while Plaintiff was
fired.
COUNT ONE(Age Discrimination)
15. Plaintiff reavers and realleges each and every paragraph above as if fully
set forth herein.
16. Plaintiff, a member of a protected class, was qualified for the position of
sales representative.
3Appx.000003
17. Age was a motivating factor in Defendants' decision to terminate
Plaintiffs employment, and he was replaced by significantly younger and less qualified
employees.
18. Plaintiff s termination also ailowed the retention of other sales
representatives under the protected age of 40.
19. The actions of Defendants described above in paragraphs one (1) through
seventeen (17) hereinabove constitute age discrimination in violation of Ohio Rev. Code
§ 4112.02(A).
20. The discriminatory conduct described above was engaged in recklessly,
maliciously, and intentionally.
21. Plaintiff has a remedy against Defendants pursuant to Ohio Rev. Code §
4112.99.
22. As a result of the foregoing actions of Defendants, Plaintiff has suffered
damages including but not limited to loss of wages and mental anguish in an amount in
excess of Twenty-Five Thousand Dollars ($25,000.00).
COUNT TWO(Violation of Public Policy)
23. Plaintiff reavers and realleges each and every paragraph above as if fully
set forth herein.
24. Terminating Plaintiff s employment as described hereinabove constitutes a
violation of Ohio's public policy as set forth in the Age Discrimination in Employment
Act, 29 U.S.C. §§ 623 et seq., and as set forth in Ohio Revised Code §§ 4112.02 et seq.
4
Appx.000004
25. Defendants' conduct as set forth above was willful and intentional and of the
nature for which Plaintiff is entitled to recover punitive damages, including his
reasonable and necessary attomey's fees, expert fees and the cost of this action, in an
amount to be determined at trial.
26. As a result of the foregoing actions of Defendants, Plaintiff has suffered
damages including but not limited to loss of wages and mental anguish in an amount in
excess of Twenty-Five Thousand Dollars ($25,000,00).
WHEREFORE, Plaintiff respectfully prays that this Court:
A. Order to make Plaintiff whole by providing compensation for violation of
his civil rights, emotional distress and punitive damages in an amount in excess of
$25,000.00;
B. Award Plaintiff appropriate back pay, front pay, and reimbursement for
lost wages in an amount to be proven at trial;
C. Grant to Plaintiff his attorney's fees, costs, and disbursements;
D. Award pre- and post-judgment interest at the rate of ten percent (10%) per
annum; and
E. Grant such further and additional relief as this Court deems just and
proper.
Respectfully submitted,
Caryn M. Gro6del (00601^1)David J. Steiner (0075217)
5
Appx.000005
Caryn Groedel & Associates LPA Co.3681 Green Road, Suite 410Beachwood, Ohio 44122216-831-7077Attomeys for Plaintiff
JURY DEMAND
Plaintiff hereby demands a trial by jury on all issues so triable.
6
Appx.00D006
IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO
WALLY PATTISON, -
Plaintiff, Case No. CV-03-500620
V.
W.W. GRAINGER, INC., et. al.,
Defendants.
RECEIVED
MAY 1 7 2004
A.L.G.
JUDGE NANCY A FUERST
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Pursuant to Rule 56 of the Ohio Rules of Civil Procedure, Defendants W.W. Grainger
Inc. and Sam DiMeo respectfully move the Court for an order in their favor granting summary
judgment against the Plaintiff. This Motion is based upon the pleadings, depositions, and the
accompanying Memorandum and attachments thereto.
Respectfully submitted,
SCHOTTENSTEIN, ZOX & DUNN
E. Davidson, Esq. (0024534)Aaron L. Granger, Esq. (0067562)Schottenstein, Zox & Dunn, L.P.A.250 West StreetColumbus, Ohio 43215(614) 462-2700(614) 462-5135
Attorney for Defendants,W.W. Grainger Inc. and Sam DiMeo
OF COUNSEL
Henry F. Galatz, Esq.W.W. Grainger, Inc.100 Grainger ParkwayLake Forest, IL 60045-5201
{NOC15IB5.3 )
Appx.000007
MEMORANDUM IN SUPPORT
I. INTRODUCTION
This case is about a sales employee who was terminated for non-performance after failing
for five consecutive years to meet the legitimate business goals set by Defendant, W.W.
Grainger, Inc. ("Grainger"). Plaintiff, Wally Pattison ("Pattison") was the only territory manager
in his district whose performance fell below Grainger's sales goals five years in a row. Pattison
asserts that younger similarly situated employees with equal or inferior sales perfonnances were
treated better. (Complaint, ¶9).' As the following Memorandum illustrates, there is no similarly
situated younger employee that failed to meet the legitimate business goals of Grainger five
years in a row. Pattison's lack of performance puts him in a class all by himself.
H. STATEMENT OF FACTS
Grainger is a national leader in the distribution of maintenance, repair and operating
supplies to the commercial, industrial, contractor, and institutional markets in North America.
The Company operates exclusively as a distributor, and its catalog contains thousands of brand
name products. The Company's sales efforts are supported by over thirteen thousand sales
people, employed throughout the country.
1 This is the second case where a poor performing sales employee has attempted to explain bad results with legalclaitns. Indeed, Pattison is also represented by counsel for Anthony Stefanski whose complaint was dismissed byJudge Gaughan in Case No. 1 :02CV 1163, United States District Court, Northem District of Ohio. That case raisedsimilar age related discrimination claims against Grainger but was disnussed on summary judgment. JudgeGaughan found that Stefanki could not identify a sitnilarly situated employee to establish his prima facie casebecause Stefanski failed to show that all relevant aspects of his situation were nearly identical to that of theemployees who were allegedly treated better.
Using just three examples Judge Gaughan found that younger employees did not fail to achieve their sales goals forseveral preceding years like Stefanski; there was no evidence that the younger employees had trouble meetingdeadlines for monthly expenses and reports; and younger employees had not received any customer complaints. SeeAppendix A, Judge Gaughan's Memorandum of Opinion and Order page 24-25.
(HO415)85.1 ) 2
Appx.000008
Pattison was bom December 30, 1952. (Pattison Dep. p. 112).2 His first job out of
college was working for his family's business, Pattison Supply Company. (Pattison Dep. p. 55).
Grainger purchased Pattison Supply Company around 1990. (Pattison Dep. p. 7). Between 1990
and 1994 Pattison Supply Company was doing business as Bossert Industrial Supply, a name
given to a collection of companies purchased by Grainger. (Pattison Dep. p. 70-71). At the time
of the acquisition, Pattison was working as an outside sales employee and retained 16 shares of
Pattison Supply Company for which he was compensated. (Pattison Dep. p. 56 - 58). Pattison's
position as a sales representative did not change after the Grainger acquisition. (Pattison Dep. p.
69 and 73-74).
Pattison's immediate supervisor after the acquisition by Grainger was Anthony Stefanski.
(Pattison Dep. p. 60). Pattison subsequently reported to Mike Haskins, Mark Lysaght, Jim
Musbach, and Sam DiMeo. (Pattison Dep. p. 74). However, Pattison's age discrimination
claims relate exclusively to Sam DiMeo's supervision of him beginning in May of 2001.
(Pattison Dep. p. 75-76; DiMeo Affidavit ¶ 13).
Pattison recognizes that his sales goals were not set by DiMeo (Pattison Dep. p. 78;
DiMeo Affidavit 14); and Pattison admits that he did not meet Grainger's sales goals for five
consecutive years beginning in 1998. (Pattison Dep. p. 83-85; Pattison Dep. Ex. 1). In addition
to DiMeo's documentation of Pattison's poor performance, two of Pattison's prior supervisors,
Mark Lysaght and Jim Musbach, documented Pattison's poor performance. However, Pattison
References to the deposition transcript of Wally Pattison and exhibits from it will be denoted as "(Pattison Dep. p.^ and (Pattison Dep. Ex._J." The deposition is being filed along with this Motion for Summary Judgment.
A facsimile of Sam DiMeo's affidavit is attached as Appendix B. The original will be filed hereafter when it is
received.
XO41 518S3 ) 3
Appx.000009
stated that he has no reason to believe that Mark Lysaght or Jim Musbach discriminated against
him based upon his age. (Pattison Dep. p. 153-154).
In a November 15, 1999 letter captioned "Re: Sales Performance" Lysaght warned
Pattison to establish over 5% growth in his accounts in the last two months of the year or he
would begin counseling statements with Pattison. (Pattison Dep. p. 150; Pattison Dep. Ex. 2).
That letter also wamed that Pattison was in jeopardy of ending the year under the annual goals
set by Grainger for the second consecutive year. Ultimately, Pattison failed to achieve the
annual sales goal for the second year in a row. In a January 28, 2000 letter captioned "Re: 1999
Sales Performance Follow Up" Pattison was informed that counseling statements would begin.
(Pattison Dep. p. 151-152; Pattison Dep. Ex. 3). That same letter put Pattison on notice that if he
did not meet the sales performance by the end of the first quarter disciplinary action would be
taken up to and including termination.
Lysaght acknow]edged Pattison's effort to increase his sales in a May 15, 2000 letter
captioned "Re: Congratulations" for being above the sales goals at that point in the year.
(Pattison Dep. p. 152-153; Pattison Dep. Ex. 4). However, by the end of 2000 Pattison fell
below the sales goals for a third consecutive year.
When Musbach became Pattison's supervisor he also documented the poor performance
of Pattison. In a February 5, 2001 letter captioned "2001 Performance Expectations" Musbach
put Pattison on notice of Grainger's expectations to be achieve by the end of 2001. (Pattison
Dep. p. 154; Pattison Dep. Ex. 5).
After DiMeo took over as Pattison's immediate supervisor in May of 2001, DiMeo began
documenting Pattison's unsatisfactory performance. (Pattison Dep. Ex. 6). Among the
substantial list of things documented, none of the following performance issues are in dispute:
(II0415195.3 ) 4
Appx.000010
• Pattison admits that he made an error by failing to submit a timely bid to the City of
Cleveland for lighting that was worth One Hundred and Fifty Thousand Dollars
($150,000) in business to Grainger. (Pattison Dep. p. 157; Pattison Dep. Ex. 6).
• Despite being told by DiMeo on October 4, and 18, 2001 not to submit any large bids
without involving DiMeo, Pattison did not involve DiMeo in a bid he submitted to the
City of Cleveland for shelving. (Pattison Dep. p. 168-167; Pattison Dep. Ex. 6).
• Pattison did not attend a conference call that was held regarding a tool promotion
Grainger was launching. (Pattison Dep. p. 170-17 1; Pattison Dep. Ex. 6).
• Pattison did not pick up a sample of a tool that he was supposed to promote with his
existing accounts. (Pattison Dep. p. 173; Pattison Dep. Ex. 6).
• Pattison told DiMeo that Pattison "threatened" one of Grainger's customers in Cleveland
to get the customer to purchase three tools. (Pattison Dep. p. 172-173; Pattison Dep. Ex.
6).
However, DiMeo did not simply document Pattison's poor performance. DiMeo also
attempted to counsel Pattison on how to increase sales both formally and informally. Despite the
sincere attempts by DiMeo to help, Pattison failed to meet the annual sales goals in 2001 and
2002.
In 2002, DiMeo also conducted an annual performance review that documented
Pattison's lack of performance. (Pattison Dep. p. 205; Pattison Dep. Ex. 10). DiMeo also
provided Pattison with a letter dated August 14, 2002, outlining DiMeo's expectations of
Pattison. (Pattison Dep. p. 202-203; Pattison Dep. Ex. 9). Due to Pattison's unsatisfactory
performance for five consecutive years and other performance issues, Pattison was terminated by
DiMeo on January 7, 2003.
p104 15185.3) 5
Appx. 000011
111. LAW AND ARGUMENT
Standard of Review
The Defendants are entitled to summary judgment on Pattison's Complaint because there
are no genuine issues of fact or theories of law which support his claims. Ohio Civil Rule 56(c)
provides that summary judgment shall be rendered where the pleadings, depositions, answers to
interrogatories, admissions, together with affidavits, "show there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law."
Ohio Courts have consistently looked to federal law for guidance when considering
claims of employment discrimination brought under the Ohio Revised Code. Coryell v. Bank
One Trust Company, 2004-Ohio-723 (adopting the federal standard for establishing the forth
prong of the prima facie case for age discrimination claims); Plumbers & Steamfitters Joint
Aonrenticeship Conunt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St.2d 192, 196, 421 N.E.
2d 128, 131 (concluding that the evidentiary standards applicable to Title VII of the Civil Rights
Act of 1964 were applicable to ascertaining whether a violation of Ohio Revised Code Chapter
4112 occurred); Republic Steel v. Ohio Civil Rights Comm. (1975), 44 Ohio St.2d 178; and
Weiner v. CuYahoga Community College District (1969), 19 Ohio St.2d 35. There are several
federal cases that provide guidance for the analysis to be used in this case.
In regard to motions for summary judgment the United States Supreme Court has said
th at:
Summary judgment procedure is properly regarded not as a disfavored proceduralshort cut but rather as an integral part of [the rules of civil procedure] as a whole,which are designed to secure the just speedy, and inexpensive determination of
every action.
Celotex Corp. v. Catratt ( 1986), 477 U.S. 317, 327 (citation omitted).
;HO<1s195. J 1 6Appx.000012
In order to secure summary judgment, a defendant does not have the burden of proof, but
is only required to show that there is no evidence to support the plaintiffs claim. Id. at 323. The
plaintiff bears the burden of going outside the pleadings and presenting admissible evidence
demonstrating that specific facts exist which raise genuine issues for trial. Id. at 324. A mere
scintilla of evidence is not enough, and the non-moving party must do more than simply show
that there is some metaphysical doubt as to the material facts. Matsushita Electrical Industrial
Co, v. Zenith Radio Corp. (1986), 475 U.S. 574, 585-86 . Application of these principles to the
facts and allegations in this case compels the conclusion that summary judgment is appropriate.
A. Pattison Cannot Establish an Age Discrimination Claim
Pattison does not allege that any action taken by Grainger adversely affected a class of
persons, but that he, personally, was the subject of discrimination based upon age. As such, this
is a "disparate treatment" case, rather than a "disparate impact" case. In a disparate treatment
case the Ohio Supreme Court has held that a plaintiff bears the burden of establishing the
existence of discriminatory motive. Little Forest, Medical Center v. Ohio Civil Riehts
Commission (1991), 61 Ohio St.3d 607, 611, 575 N.E. 2d 1164, 168. Discriminatory motive can
be established either by direct or circumstantial evidence. Pattison has no direct evidence of any
discriminatory motive based upon age.
Circumstantial evidence of discriminatory motive can be shown through the tripartite
analysis established under McDonnell-Douglas Corp. v. Green (1973) 411 U.S. 792, 801; Texas
Deyt of Community Affairs v. Burdine (1981), 450 U.S. 248, 256-58. Under McDonnell-
Douelas the Plaintiff must first establish a prima facie case of discrimination. If the plaintiff can
establish a prima facie case, the defendant can refute the plaintiff's case by articulating a
legitimate non-discriminatory reason for the action taken against the plaintiff. When the
M04151B5.1)
Appx.000013
defendant bas articulated a legitimate non-discriminatory reason, the plaintiff must show that the
defendant's proffered reason is merely a pretext for unlawful discrimination.
The McDonnell-Douglas framework for establishing discriminatory motive through
circumstantial evidence has been adapted by federal courts to claims brought under the Age
Discrimination in Employment Act of 1967 ("ADEA"). In tum, the Ohio Supreme Court has
applied the McDonnell-Douglas framework to age discrimination claims brought under the Ohio
Revised Code. Baker v. Scovill. Inc. (1983), 6 Ohio St.3d 146, 451 N.E.2d 807; and
Kohmescher v. KroQer Co. (1991), 61 Ohio St.3d 501, 575 N.E.2d 439. Using this framework
Pattison cannot establish a disparate treatment case because he has no direct evidence of age
discrimination, he fails to establish a prima facie case of age discrimination, and he is unable to
show that Grainger's legitimate non-discriminatory reason for terminating him (i.e., failing to
achieve sales goals five years in a row and other performance related issues) was merely a
pretext for illegal age discrimination.
B. Pattison Has No Direct Evidence of Discrimination
"Direct evidence of discrimination allows a plaintiff to proceed without meeting the
requirements of a prima facie case as set forth in the tripartite analysis established under
McDonnell Douglas." Ang v. Procter & Gamble, 932 F.2d 540, 549 (citing Trans World Airlines
v. Thurston, 469 U.S. 111 (1985)). Pattison has not alleged any incidents that could lead a
reasonable person to believe that the actions taken by DiMeo or Grainger were motivated
because of Pattison's age. "The plaintiff at all times carries the ultimate burden of proving
discrimination." Jackson v. RKO Bottlers of Toledo, ]ne., 743 F.2d 370, 375 (6th Cir.1984),
(citing Havnes v. Miller, 669 F.2d 1125, 1126-27 (6th Cir.1982)).
MOa15185) ^ 8Appx.000014
Pattison has no direct evidence to show that there was any discriminatory animus against
him based upon his age. Pattison testified that he cannot recall DiMeo ever making any age-
related comments about Pattison or any other employee at Grainger. (Pattison Dep. p. 108-109).
This is significant because DiMeo is the one who made the decision to terminate Pattison.
Therefore, there is no direct evidence to lead a reasonable person to believe that age was a
motivating factor in DiMeo's decision to terminate Pattison. As stated in Peters v. Lincoln
Electric Co., 285 F.3`d 456, 477-478 (Sixth Circuit Sir. 2002) (citing Coolev v. Carmike
Cinemas, Inc., 25 F.3d 1325 (Sixth Circuit. Sir. 1994)), four factors are to be evaluated in
considering allegedly age biased remarks:
Whether the statements were made by a decision/maker or by an agentwithin the scope of his employment;
2. Whether the statements were related to the decision/making process;
3. Whether the statements were more than merely vague, ambiguous, orisolated remarks;
4. Whether they were made proximate in time to the act of termination.
Age was not a factor that DiMeo considered when he made his decision to terminate
Pattison. (DiMeo Affidavit ¶5). Therefore, having failed to establish direct evidence of age
discrimination, Pattison can only establish a prima face case under the McDonnell Douglas
framework for circumstantial evidence.
C. Pattison Cannot Establish He Was Qualired for the Position
In order to establish a prima facie case of age discrimination a plaintiff must demonstrate
that he or she: "(1) was a member of the statutorily protected class, (2) was discharged, (3) was
qualified for the position, and (4) was replaced by, or the discharge permitted the retention of, a
person of substantially younger age." Coryell at ¶20. Pattison is unable to show that he is
(HOA15185.3 1 9
Appx. 00D015
qualified for the position and there is no material issue of fact with respect to that element of his
prima facie case.
The courts recognize that an employee is not qualified for the position where the
employer can demonstrate that the employee was not performing "at a level which met [the]
employer's legitimate expectations." Ang v. Proctor & Gamble Co., 932 F.2d 540, 548-549 (6th
Cir. 1991) (citing McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (6th Cir. 1990)). Ohio
courts have adopted the employer's legitimate expectations test in determining whether the
plaintiff has established that he is qualified under the discrimination laws. Neubauer v. A.M.
McGregor Home Coro. (Ohio App. 8 Dist.), 1994 WL 197221. This is consistent with a long
and unbroken line of federal cases which use the same standard in judging "qualification" under
the ADEA. See e.g., Danielson v. City of Loraine, 938 F.2d 681, 683 (6th Cir. 1991); Gyu^yik
v. Precise Tool & Die Co., 829 F.2d 38 (6th Cir. 1987); Wilkins v. Eaton Corp., 790 F.2d 515
(6th Cir. 1986); Wheelwright v. Clairol, Inc., 770 F.Supp. 396, 400 (S.D. Ohio 1991).
Applying the legitimate expectations test here, Pattison cannot establish that he was
qualified for his position because he cannot overcome uncontroverted evidence that he failed to
meet the sales goals of Grainger for five consecutive years in a row. Additionally, many of the
performance issues DiMeo brought to Pattison's attention by were readily acknowledged by
Pattison. (Pattison Dep. p. 157, 168-169, 170-171, 172-173; Pattison Dep. Ex.6). Undisputed
facts establish that Pattison failed to achieve his sales goals five years in a row. (Pattison Dep. p.
83-85; Pattison Dep. Ex. 1).
Pattison was warned frequently, both formally and informally, to increase his sales to
meet the goals set by Grainger. (Pattison Dep. Ex. 2, 3, 7, 9 and 10). In fact, Pattison admits
that he had knowledge of this deficient performance. DiMeo noted that on August 21, 2002,
(H04I51853 ) 10Appx. 000016
when he phoned Pattison and asked him if he sent his GAP Closure form, Pattison responded
that he did not finish the Closure fonn, had no excuse for why it had not been done, and stated
"Sam, I am lost out here". (Pattison Dep. p. 191; Pattison Dep. Ex. 6). Although Pattison states
that he does not remember saying those exact words, he testified that his statements were made
with the effect of asking DiMeo for help.
Despite DiMeo's attempts at counseling, as documented in Pattison's Deposition Ex. 6,
Pattison's annual sales never reached the expectation level set by Graitrger. In addition to that,
Pattison had a wide variety of performance problems, including failing to submit a timely bid
that was worth One Hundred and Fifty Thousand Dollars ($150,000.00); refusing to involve his
supervisor in large bid project; not attending new promotional meetings for the sales team; and
not showing the promotional tool to existing clients.
Accordingly, as a matter of law, Pattison cannot establish that he was qualified for his
position, and cannot carry his prima facie burden.
D. Pattison Cannot Identify a Similarly-Situated Employee Who Was TreatedBetter
Since the adoption of the McDonnell Douglas framework by Ohio courts, plaintiffs
alleging disparate treatment cases have also been required to prove that they were being treated
differently than similarly situated employee's "outside of the protected class." Cummings v.
Sears. Roebuck & Co., (Ohio App. 8 Dist.) 2002-Ohio-5078 citing Mitchell v. Toledo Hosp.
(C.A. 6, 1992), 964 F.2nd 577. With the Ohio Supreme Court's recent holding in Coryell, the
plaintifPs burden in a disparate treatment case is now only slightly modified to require a
showing that the plaintiff was treated differently than a similarly situated employee "of
substantially younger age." Lange v. Honda of America MfR., Inc., (Ohio App. 3 Dist.), 2004-
Ohio-2060 citing Policastro v. Northwest Airlines. Inc. 297 F.3d 535 (6`' Cir. 2002).
{Hwi5185.3 ) 11Appx.000017
There is no employee with performance that is even remotely substantially similar to
Pattison. When asked to identify younger employees that were treated better than him, Pattison
could not identify a specific person but stated that he would simply refer to Pattison's Dep. Ex. 1
(Pattison Dep. p. 218;). Pattison Dep. Ex. 1 speaks for itself, and is the strongest evidence as to
why there is no similarly situated employee to Pattison, that was treated better. With the
exception of Pattisson, Pattison Dep. Ex. 1 does not show anyone that failed to achieve the sales
goals of Grainger for five years in a row who was not terminated, regardless of the person's age.
Pattison must show that the comparables are similarly situated in all respects, absence
other circumstantial or statistical evidence supporting an inference of discrimination. Lange v.
Honda of America Mfg., Inc., (Ohio App. 3 Dist.), 2004-Ohio-2060. Unlike many cases where
the termination decision was made based upon very subjective criteria, this case presents itself in
a very unusually clean manner. The poor sales performance by Pattison is undisputed. Pattison
himself testified that from the Company's perspective, you either make goal or you don't,
regardless of how much you were over or under that goal (Pattison Dep. p. 142). There is
nothing Pattison can do to escape his poor perfonnance over the last five years of his
employment.
The only other circumstantial information that Pattison offers to allegedly explain his
desperate treatment, is that he had four accounts taken away from him and given to younger
employees. These four accounts were the Cleveland Plain Dealer, Horsborg & Scott, American
Greetings, and KM&M (Pattison Dep. p. 120-124). Of the four accounts Pattison listed, he
received Thirty Thousand Dollars ($30,000.00) in annual revenue from the Plain Dealer, Thirty
Thousand Dollars ($30,000.0) from Horsborg & Scott, Fifteen to Eighteen Thousand Dollars
($15,000.00-$18,000.00) from American Greetings, and Thirty-Five Thousand ($35,000.00)
p1o41 5135 1^ 12
Appx.000018
from KM&M. These four accounts represented One Hundred and Thirteen Thousand Dollars
($113,000.00) of his annual revenue for 2002, which was 3.5 Million Dollars (Pattison Dep, p.
120). That was less than the One Hundred and Fifty Thousand ($150,000.00) Pattison missed
out on when he failed to submit a timely bid to the City of Cleveland. This also represents four
accounts out of Pattison's total of Two Thousand Four Hundred (2,400) individual accounts
(Pattison Dep. p. 123).
Taking these four accounts from him does not create a material issue regardless of whom
the accounts were given. The suggestion that these four accounts were taken away fxom him
because of his age lacks any foundation. In fact, Pattison acknowledged that when a new District
Sales Manager comes in to a new district, some accounts are moved around. (Pattison Dep. p.
117).
E. Defendant Had a Leeitimate Nondiscriminatory Reason for Its Action,
Which Was Not Pretextual
Even if the Court finds that Pattison can prove a prima facie case of age discrimination,
Defendants have a legitimate non-discriminatory reason for their actions. See Fumco
Construction Corp. v. Waters, 438 U.S. 567, 578 (1978), (quoting, McDonnell Douglass Corp,
411 U.S. at 802). Pattison's three most recent supervisors documented Pattison's poor
performance since 1998. Pattison was the only territory manager in his district to fail to meet the
sales goals of Grainger over the same five consecutive year period. Performance problems are a
legitimate non-discriminatory reason for termination. Pattison does not dispute that these
problems existed. Further, an employer has the right to make business decisions, like this one,
for good reason, bad reason, or no reason at all, absent intentional discrimination. Murray v.
Sears Roebuck & Co., 722 F. Supp., ]500, 1506 (N.D. Ohio 1989).
(HOe15195J 1 13Appx.000019
Pattison has no evidence that the decision to terminate him was motivated by his age.
When confronted with the objective evidence supporting the Company's business decision,
Pattison is unable to respond with admissible facts supporting his claims; rather, he relies only
upon conjecture and speculation, which will not create a triable issue of fact. See Ackerman v.
Diamond-Shamrock Corp., 670 F.2d. 66, 69-70 (6`h Cir. 1982) (intentional discrimination cannot
be proven by conclusory allegations made by the Plaintiff); Locke v. Commercial Union
Insurance Co., 676 F.2d. 205 (6"` Cir. 1982) (self-serving statements that Plaintiff believes she
was discriminated against because of her race are not enough); Mitchell v. Toledo Hospital, 964
F.2d 577,585 (6`h Cir. 1992) (rumors, conclusory allegations and subjective beliefs are wholly
insufficient to establish a claim of discrimination as a matter of law).
Without any evidence to support PlaintifPs subjective allegations of bias, he cannot
discredit the Company's reason for terminating him.
For all these reasons, Plaintiffs claim for violation of a public policy prohibiting age
discrimination in employment must also fail.
VI. CONCLUSION
For all of the reasons set forth above, the Defendants respectfully submit that they are
entitled to an order granting summary judgment in their favor and against Plaintiff Wally
Pattison.
(N0415185.3 f 14Appx,000020
OF COUNSEL
Henry F. Galatz, Esq.W.W. Grainger, Inc.100 Grainger ParkwayLake Forest, IL 60045-5201
Ma15165.3 )
Respectfully submitted,
SCHOTTENSTEIN, ZOX & DUNN, L.P.A.
es E. Davidson, Esq. (0024534)Aaron L. Granger, Esq. (0067562)Schottenstein, Zox & Dunn, L.P.A.250 West StreetColumbus, Ohio 43215(614) 462-2700(614) 462-5135
Attorney for Defendants,W.W. Grainger Inc, and Sam DiMeo
15Appx. D0D021
CERTIFICATE OF SERVICE
I hereby certify that the foregoing was served, this // -day of May, 2004, by U.S.
regular mail, postage prepaid, upon the following parties:
Caryn M. Groedel (0060131)5910 Landerbrook Drive, Suite 200Cleveland, Ohio 44124(440) 544-1122
Attorney for Plaintiff
(HD<15195.3 I 16Appx.000022
STATE OF O910 IN THE COURT OF COMMON PLEASYhh SS:
CLTYAHOGA COIINTY CASE NO: CV 03-500620
WALLY PATTISON
Plaintif
.fIIDGMENT +IIN7RY)
W.W. GRAINGER, INC., et al.,
Defendanfs
Plaintiff employee W y Pa.tbson filed clain,s ao inet fnrmer employer W.W. Grainger
and supervisor Sam DiMeo eging a cin:ennstanti^ case of age disr^,; ina+ion in violahon of
RC. 4112.02. After wo ' fot Crrainger and its predecessor company for 27 years, tbe 50
ed on 7anuary 7, 2003, after 5 years of poor sales pecformance.
Paliison claims thaf he was e.nainaYed and replaced by Tohn Wanbainen (age 40), Lisa Marie
Duke (age 30) and Jim FIop (age 38).
Defendants W.W. ' et, Tne. and Sam Di,^l.co moved for smary judgmenT arguing
that Pat4son was for legitimaPe reaSons and cannot make a case for age
diBcliminaSipn.
Under Civ. R 56, ary judgment is appiopriate when (1) no gennine issne as to any
materisl fact exists, (2) the arty movmg for s+mn^ary judgnent is entifled to judgr.nent as a
matter of law, and (3) ' g the evidence most sh^ongly in favor of thc non-moving pariy,
reesonable minds can only r ch one conclusion whidh is adverse to the non-moving party.
Appx.000023
The moving party arries an initial burden of setting forth specific facts which
demonstrate his entitlement c„mmary judgment Dresher v. Burt (1996), 75 Ohio St 3d 280,
292-293; 1996-Ohio-107. If thie movant fails to m¢et this burden, summary jtuignent is not
appropriate; if the movant do meet this burden, smhmary judgment will only be appropriate if
the non-movant fails to estabfish the exactence of a gefmine issue of matecial fact Id.
RC. 4112.02(A) provl(Fdes:
"It sball be unlawful ^1±^*+n+i*afotj^ practice for any employer,becatue of race, calor, religion, so%, national origin, handicap,age, or of anyperson, to discharge withoat just cause, torefuse to hire,;or otherwise discrimia(ate against thatpetson withrespect to hn'e, tenma, terms, co6ditions, or pcivileges ofemploymmt, r any mattcr dircctl^ or indirectly related toemptoyment" .I
Federal case law is ;enerally app&cable tol cases brought under Chzpter 4112. See,
Genaro e. Cent Transport, b
In McDonnell Dough
States Supreme Court set the
promoting and demoting eml
employee must demonsCrate'
discbarged, (3) was qualifi4
pemtitted the retention of a p,
Co., N.A. (2004), 101 Ohio
501.
In the altemative, an
sbowing, in addition to the f
similarly situated employee
YaL^3^l aso85E
(}099), 84 Ohio St 311293, 295, 1999-Obio-352.
'^r Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, the United
staadard to establish im^ermissible discrimination in biring, 8ring,
loyees. To establish a prima facie case for age discriinina 'on, the
Uat he (1) was a memb8r of the statutorily protected class, (2) was
d for the position, an'd (4) was replaced by, or the discharge
:ison of a subs[antially )lounger age. Id., Coryell v. Bank One Trust
t 3d 175, 180; Kohmescher Y. Kroger Co. (1991), 61 Ohio St 3d
tployee may establish a pruna facie disparate treahnent case by
three elements, that the employee was treated diflerently than a
m outside the protected class. Policastro v. Northwest Airlines,
Appx. 000024
Inc. (C.A. 6, 2002), 297 F.34
F.2d 577, 582-583.
To be considered "si
compare his treatment must
standards and have engaged
circumstances that would di
535, 538, citing Mitchell v. Toledo Hospitai (C.A 6, 1992), 964
ilarly-situated," the individuals with wbom tbe plaintiff seeks to
ve dealt with the samec. supervisor, have been subj ect to the same
in the same conduet With out such differentiating or mitigating
tingaish their conduct or employer's treatmeat af them for that
conduct Mitchell, supra, at 5^82-583; Kanieckri v, Semrs, Roebuck & Co., Cuy. App. No. 90833,
2003-Ohio-421.
Tn this case, there is im.controverted eviderice Ithat Pattison at age 50 was a membez of a
statutorily protected class, tbst he was discharged on January 7, 2003 afier 27 years employment
with Grainger and its predece`as, and that he was replaced by peTSOns of substantially younger
age/not in the protected age oup. '
The next issne is whe er under the tbird prong of the test, Pattison would be considered
quali5ed for the job. In ord to demonstrate quali5dation for a position, mm employee must not
only prvve thc capabil4. of erforming the work but 6ust also demonstrate that he is meets the
employer's legitimatc expeet'atlons. fi slson v. Precision .Envtromental Co. (June 5, 2003), Cuy.
App. No. 81932 citing Smithi v. Greater Cleveland ILegional Transit Authortry (May 24, 2001),
Cuy. App. No. 78274.
Pattison ac3mowledg
Three supervisors documcni
that he failcd to meet bis sales goals for five coosecutive years.
Pattison's poor performance. In November 1999, Pattison was
warned that he was in jeop y of fzIIing short of hSs annuel goals for the second consecutive
year and was urged to estab 5% growth or face cbrrective action. In January 2000, Pattison
was wamed that if he did n meet first quarter salesl expectations, disciplinary action, including
A835 1 PG0852
Appx.000025
posstble termiaation would e taken. In 2002, lliMrb conducted an annual performance review
which documented Pattison' lack of performance. Pattison was the only territory manager in
his district who failed to mee his sales goal over a period of five years. In addition, Pattison was
put on notice for failure to end sales and promoYfional mcetings, failtse to entertain clients,
failure to file timely reports,
R'hile Pattison argu thaf he was denied the opportunity to use Indians baseball tickets,
thaf some of his accounts we e traneferred to other esnployees and that he was well liked by at
least four or five of Itis costomers, he is unpersuasive in establishing that those factors would
have made any substantial difT''erence in his sales $guries over the five year period
The evidence establis$ea that under the Smith 6tandard, Pattison would not be considered
qoalified for the job; his p
employer's expectations of
Cttainger's general sub
Assuming arguendo
burden shiRs to C'.rnunger
discharge. Pattison mostthi
nnlawfnl discrimination. Mc
To establishwhether
an employee must show
discriminatory reasons morc
remains at all times with
(2000), 530 U.S. 133, 142, 1
a facie case would fzil. However, it is arguable whether the
ales goals for all salespersons wcre 4egitiwate when considering
sales performance.
Pattison establishes a prima facie case of discrimination, thc
articulate a legitimate non-rtiscir;*a;,,atory reason for Pattison's
dcmonstiate that Cttaingvr's stated rationale is merely a pretext for
onnell, supra; B^ker tt Scovill, Inc. (1983), 6 Ohio St 3d 146.
employer's reason foi termination is a prctext for d+sud•+++*A++on,
at the employer's pioffercd reason is not credible or that
ely motivated the employer's decision. Tbe burdcn of persuasion
e employee. See, Ree\1es v. Sanderson Plumbing Products, Inc.
0 S. Ct. 2097, 2106 citing Texas Deparnnent of Community Affairs
v. Burdine ( 1981), 450 U.S. *8, 255-256, 101 S. Ct 1089, 1095.
^H6351 PcQ85^
Appx. 000026
In their pleadiags an motion for summary judgment, Grainger and DiMeo assert that
age played no part in Pat.tison s*P*mi•+a*on.
Based upon evidence discussed earlier, Grainger terminated Pattison for his consistent
failure to meet sales goals dr five consecutive yeats in addition to Pattison's inability andlor
unwillingness to adopt DiMi 's suggestions to improve his sales perfotmance. Performance
problems are a lee}'tE=mate n^n-di. '+++t*+xtory reason for termination andan employer has the
right to make business decisi ns.
Pattison argues that t}rainger's ressoning fot termination is pretextu.al: DiMeo admitted
in deposition tbat the Clevelapd Dis4[ict as a whole iegularly failed to meet it sales goals; that in
2001 and 2002 only one 'fTv$ achieved sales goals.'But Paitison, unlike any of the other TMa
mentioned, failed to make go'V for five consecutive y ears.
Pattison argues that ^cott Puhalsky failed tri make sales goals and was considercd for
promotion as a National
PuhaLsk7rs bid for promotioa^
xount Manager. Evidenco shows that DiMeo did not svpport
bccause he failed to achi0ve his sales goal and that Puhalsky never
applied for the promotion. 7'hile Puhalsky testified that he was not warned or disciplined, be
was pressured to meet sales g0als or lose his job.
Pattison claims that*ian Waldron was promoted in July 2002 despite the fact that his
2001 sales were significantlylbelow goal. Evideuce indicates that Waldron was moved laterally
to a non-sales position and h did not fail to meet sales goals for five consecutive years.
Pattison argues that iMeo intcntionally set him up for failnrc by withholding Indians
tickets used for ent clients. Pattison faiLd to establish how having Indians tickets
substantially affected his sal goals. Tbere were dnly four seats and Pattison serviced 2,400;
accounts: ..
YUld3& 1. PBQ684
Appx.000027
Finally, Pattison
resnlting in his failure to
in time to his tetmination
have changed had he continu
Patterson caunot es
DiMeo acted with discrimin
Accordingly, Def^
granted
some of his aceounts were transfesed to other salesmen
e sales goals. Approximateky flve acconnts were transferred close
Pattison fails to demoustrate how his overall performance would
to servicethese aeconnts.
lish that a genuine issue of fact remains as to whether Crrainger or
ry intent in his tezminaYion.
TT L4 SO ORDERED
NO JUST CAUSE FOR DELAY.
Date: JTme &7- 2005
REGEIVED FOR FILING
JUN 21 2005
VOt^^^ I PGOB5'0THE STATE CF OHICl I. GERALD E. FL'ERST, CLERK OFCuPeNoge Ccunly F SS. THE COURT OF COMMON PLFAS
WI -- HIN AND FOR SAID CDLNTY.NEBEBPCERTI.1'TNA?T8E4BOVEANBFG GGI 'S *v t7ANP' FI C%8ui'. HED IGIN L/
i , iN6WfTNES f 4!-*i NUAN L FSAIOOA F 20
ER T Clerk
pep
Appx. 000028
CERTTLFICATE OB SERpICE,
A copy pf thc forego g Judgment Enhy was sent by rcgnlar U.S. mail this
of Juae, 2005, t'p the follo '
Caryn Groedel, Es I5910 derbrook Dx^Cleve OH 44124Anb forPlaiMffl
and
ve, Suite 200
Jamcs E. Davidson, P%q.Asron li. Granger, Psq.Schottenstein, Zox & Dunn, L.P.A.250 W. StrcetColumtios, OH 4321AArtorne}er for Defend^ntr
VO^^^'k PGQ85I
Appx.000029
APR 2, t} 2006
COURT OF APPEALS OF OHIO, EIGHTH DISTRICT RECEIVED
COUNTY OF CUYAHOGA
NO. 86698
WALLY PATTISON,
Plaintiff-Appellant
vs.
W.W. GRAINGER, INC., ET AL.,
nefPnd.ants-Appellees
DATE OF ANNOUNCEMENT
OF DECISION
CHARACTER OF PROCEEDING:
JUDGMENT
DATE OF JOURNALIZATION
APPEARANCES:
For plaintiff-appellant:
For defendants-appellees:
JOURNAL ENTRY
and
OPINION
APRIL 13, 2006
Civil appeal from
Common Pleas Court
Case No. 500620
DISMISSED.
APR P 412008
MAY 01 2006
J.E.D.
Caryn M. Groedel, Esq.
David J. Steiner, Esq.
CARYN GROEDEL & ASSOCIATES CO., LPA
5910 Landerbrook Drive
Suite 200Cleveland, Ohio 44124
James E. Davidson, Esq.
Aaron L. Granger, Esq.
SHOTTENSTEIN, ZOX & DUNN, L.P.A.
250 West Street
P.O. Box 165020
Columbus, Ohio 43215
CA05086698 39088630
1IIIIII IIIII IIIII lall IIIN I^II IIIII IIIII IIII I^yaQ6II P5059I
Appx. 000030
-2-
MICHAEL J. CORRIGAN, J.:
Defendant-employer W.W. Grainger; Inc. terminated plaintiff-
employee Wally Pattison, a fifty-year-old salesperson, when he
failed to make his sales goal for the fifth consecutive year.
Believing himself to be the victim of age discrimination, Pattison
brought suit alleging age discrimination and wrongful discharge in
violati.on.of Ohio public policy. He sought compensation in the
form of back and front pay, as well as punitive damages. Grainger
filed a motion for summary judgment in which it argued that
Pattison failed to set forth a prima facie case of age
discrimination because his poor job performance rendered him
unqualified for the position of salesperson. The court agreed and
granted summary judgment. We find, reluctantly, that we lack a
final appealable order because the public policy claim for relief
is still extant.
Civ.R. 54(B) states:
"When more than one claim for relief is presented in an action
whether as a claim, counterclaim, cross-claim, or third-party
claim, and whether arising out of the same or separate
transactions, or when multiple parties are involved, the court may
enter final judgment as to one or more but fewer than all of the
claims or parties only upon an express determination that there is
no just reason for delay. In the absence of a determination that
there is no just reason for delay, any order or other form of
yeLU611 Pc0592Appx.000031
decision, however designated, which adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties,
shall not terminate the action as to any of the claims or parties,
and the order or other form of decision is subject to revision at
any time before the entry of judgment adjudicating all the claims
and the rights and liabilities of all the parties."
Pattison filed a two-count complaint. The first count alleged
age discrimination under R.C. 4112.02(A). The second count alleged
that his termination violated Ohio's public policy against
employment discrimination as set forth in R.C. 4112.02 et seq.
Grainger's motion for summary judgment addressed the first
count of the complaint, but made no mention of the second count of
the complaint. In fact, nowhere in the motion for summary judgment
are the words "public policy" mentioned. The court's summary
judgment likewise failed to address the public policy claim. That
claim is therefore still extant. Because the court failed to
certify that there was no just reason for delay, the summary
judgment is not final as to all of Pattison's claims.
Our reluctance to dismiss this case is based on Wiles v.
Medina Auto Parts, 96 Ohio St.3d 240, 2002-Ohio-3994, which
arguably renders Pattison's public policy claim redundant to the
statutory age discrimination claim. Nevertheless, the impact of
the Wiles decision on public policy claims of age discrimination is
still open to question. See Gessner v. City of Union, 159 Ohio
YGlOo i I PG0593Appx.000032
-4-
App.3d 43, 2004-Ohio-5770, at ¶20; Ferraro v. B.F. Goodrich Co.,
149 Ohio App.3d 301, 316-317, 2002-Ohio-4398; Mercurio v. Honeywell
(S.D.Ohio), No. C-1-02-275, 2003 U.S. Dist. Lexis 9521 at *6.
Although we review summary judgments de novo, Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 1996-Ohio-336, Civ.R. 56
specifically endows the trial court with authority to decide
summary judgment motions in the first iristance. Indeed, Article
IV, Section 3(B)(2) of the Ohio Constitution specifically limits
our power to "*** review and affirm, modify, or reverse judgments
or final orders of the courts of record inferior to the court of
appeals ***." It is the trial court's function to rule on the
public policy claim in the first instance.
Appeal dismissed.
vaL06 i l P60594Appx.000033
-5-
This appeal is dismissed.
It is ordered that appellees recover of appellant its costs
herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court
directing the Common Pleas Court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate
pursuant to Rule 27 of the Rules of Appellate Prkcedure.-j_
ANN DYKE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR.
FILED AND JOliRNALIZEDPER APP. R. 221E)
APR 2 4 2006
CLBY.
RALD E. FUERSTCOURT'OF APPEALS
h-IX^ DEP.
ANNOUNCEhIIiiYi OF DECi5I0NPER APPRE
C^E,I V^)D^ 26(A)
APR 13 2005
OERALD E.PUER8TCLERK O PC P APPEALSBY DNP.
N.B. This entry is an announcement of the court's decision. See
App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will
be journalized and will become the judgment and order of the court
pursuant to App.R_22(E) unless a motion for reconsideration with
supporting brief, per App.R. 26(A), is filed within ten (10) days
of the announcement of the court's decision. The time period for
review by the Supreme Court of Ohio shall begin to run upon the
journalization of this court's announcement of decision by the
clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section
2 (A) (1) .
VO 6 1 1 Poa59sAppx. 000034
IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO
WALLY PATTISON
Plaintiff,
vs.
CASE NO. CV 03 500620
JUDGE NANCY A. FUERST
NOTICE OF DISIVIISSAI.OFPLAINTIFF'S PUBLIC POLICY
W.W. GRAINGER, INC., et al. ) CLAIM ONLY
Defendants.
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes the Plaintiff, Wally Pattison, by and through counsel, and, pursuant to Rule
41(A)(1)(a), hereby dismisses his public policy claim only from the instant case without
prejudice.
Plaintiff respectfully requests that this Honorable Court issue an Order stating that the
Judgment Entry is final and appealable.
Respectfully submitted,
Caryn MJGroedel (0060131)Jennifer L. Speck (0079126)Caryn Groedel & Associates Co. LPA5910 Landerbrook Dr., Suite 200Cleveland, Ohio 44124440-544-1122Attomeys for Plaintiff
Appx.000035
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served via first class, U.S. mail, this 28"'day of June, 2006, to James Davidson, Esq., Shottenstein, Zox & Dunn, 250 West Street,Columbus, Ohio 43215-2538, attorney for Defendants.
2
Appx.000036
Fl r_..^^CT OF APPEALS
AUG - 9 20061N T
GERALD E. FUEIRSTC'.F COURTS
CUYAWOGA COUrJTY, OHIO
COURT OF COMMON PLEASYAHOGA COUNTY, OHIO
WALLYPA•f'I'ISON ) CASE NO. CV 03 500620
Plaintiff,
vs.
W.W. GRAINGER, INC., et al.
JUDGE NANCY A. FUERST ^^)
NOTICE OF APPEAL
Judge:
Defendants. ) CA 06 088556
Notice is hereby given that the Plaintiff, Wally Pattison, by and through his undersigned
attorney, hereby appeals to the Court of Appeals for Cuyahoga County, Ohio Eighth Appellate
District, from the final judgment entered in this action on the 21 u day of June, 2005, that was
deemed final and appealable by the trial court on the 10`h of July, 2006.
A copy of the Judgment Entry being appealed from is attached hereto as Exhibit 1. The
trial court's July 10, 2006 notice is attached hereto as Exhibit 2.
Respectfully submitted,
Caryn M. Gkoedel(00601)Anthony J. Lazzaro (00^j'7962)Jennifer L. Speck (0079126)Caryn Groedel & Associates Co., LPA5910 Landerbrook Drive, Suite 200Cleveland, Ohio 44124(440) 544-1122 phone (440) 446-1240 faxc r̂ oedel,^eroedel-law.comAttorneys for Plaintiff
RECEfVEDr°=° , ., ^r
AU G j4,^ 20D6 ^
ZOOb ,'^^Q• A 11; 48
Appx.000037
CERTIFICATE OF SER'QCE
I hereby certify that a copy of the foregoing was served via first class, U.S. mail, this 9thday of August, 2006, to James Davidson, Esq., Shottenstein, Zox & Dunn, 250 West Street,Columbus, Ohio 43215-2538, attomey for Defendants.
2
Appx.000038
STATE OF OSIO N TEE COURT OF COMMON PLEAS5S:
CUYAHOGA COUNTY L:ASE 90. CV 03-500620
WALLY PATTfSON
Plaintiff
W.W. GRAIIIGER, INC., ejal., ))
Defendants
Nancy A. FtEerst, J.:
EN'I77
Plaintiff employee W Pattison filed clainbs againet former employer W.W. Grainger
and s¢pervisor Sam ThMeo alleging a ciLct^sdanti^l case of age dismm;rA+^on in violation of
RC. 4122.02. .4fter wo for Grainger aad its preder.essor company for 27 years, the 50
yea-old empioyee was t on 7anvary 7, 2023, after 5 years of poor sales performance.
Pattison claims thaf he was ^i•+a+cd and replaced by Jolm WaQhainen (age 40), Lisa Marie
Duke (age 30) and Jim Hop (age 38).
Defendants W.W. ger, Inc. and Sam DLVeo moved for summary jndgment arguing
that Pa#ison was for Iegitimate reakns and cannot make a case for age
dicc 'ration.
Under Civ. R. 56, judgmeaf is app^opri.ate when (1) no genuine issue as to any
material fact exists, (2) the arty moving for smreiary jndgmeat is entitled To judgment as a
matter of law, aad (3) vie g the evidence niost ctrongly in favor of the non-moving party,
reasonable minds can only reach one conclusion whidh is adverse to the non-moving party.
Appx_000039
The moving party 4 azxies an initial burdcn of setling forth specific facts which
demonstrate his entitlement summaty judgment. Dresher v. Bur1 (1996), 75 Ohio St. 3d 280,
292-293; 1996-Ohio-107. If jthe movant fails to mCet this burden, st**+?^ary judgment is not
appropriate; if the movant do s mect this burden, smhmary judgment will only be appropriate if
the non-movant fails to estab h the eaasteace of a gehuine isaue of material facc Id
R.C. 4112.02(A) pro des:
"it shall be mr^ unlawful discrmtimatorf practice for any employer,becavse of race, color, relie}'on, saX, national origin, haadicap,age, or of any petson, to discllarge without just canse, torcfuse to bire„or otherwise discrimi7[ate againrt that person withrespect to bue, tennre, terms, cobditions, or privileges ofemployment, ^r any matter ditectly or indirectly relatCd toempioyment." I
Federal case law is lenerally applicable tof cases brought under Chapter 4112. See,
Genaro c. Cert[ Transporl, Ir
In McDonnel/ Dough
States Supreme Court set the
promoting and demoting
employee must demonstrate
dischsffged. (3) was quslifi
permitted the retention of a p
Co., N.A. (2004), 101 Ohio
501.
c. (JH99), 84 Ohio St 3d 293, 295, 1999-Obio-352.
s Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, the United
standard to establish im^ermissble discriminat ion in hiring, firing,
loyees. To establisb a prima fade case for age discrimination, the
he (1) was a member of the staiutorily protected class, (2) was
d for the positioR anii (4) was replaced by, or the discharge
on of a substantially ^ounger age. Id., Coryell v. Bank One Trust
t. 3d 175, 180; Kohmeseher v. Kroger Co. (1991), 61 Ohio St. 3d
sbowSng, in addition to the F three elements, that the employee was treated differcntly than a
similarly situated employee m outside the protected class. Policastro v. Norrhwesr Airlines,
ua^3 .5 I PBp851
Appx.000040
Inc. (C.A. 6, 2002), 297 F.3t^ 535, 538, citiag Mitchell v. Toledo Hospita.l (C.A 6, 1992), 964
F.2d 577, 582-583. I
To be considered "' ' ly-situated," the indtviduals with whom the p9ainti$' seeks to
compare bis treatment must ve dealt with the szme- supervisor, bavc been subject to the same
standards and have engaged in the same conduct with out such difletaatiating or mitigating
circumstances tbat would ' t'no^uish their eonduct or employer's trcatment of tbem for that
conduct Mitchell, supra, at 2-583; Kanie.sksi v, Sears, Roebuck & Co., Cuy. App. No. 80833,
2003-Ohio-421.
Jn this case, there is imcontroverted evidence khat Pattison at age 50 was a member of a
statutorily protected class, th+ he was discharged on 7anuary 7, 2003 after 27 years employment
with Cxr•ainger and its predeceksors, and that he was replaced by persons of substantially younger
agdnot in thc protected age gSonp.
'Ihe next issue is whe8lher under the third pronk of the test, Pattison would be considered
qualified for tbe job. Jn ord to demonstrate qnalifidation for a position, an employee must not
only prove the capabili^ of erforming the work but 6ust also demoo.strete that he is meets the
employer's lcgitimate expectations. Wilson v. Precision Enviromental Co. (Junc 5, 2003), Cuy.
App. No, 81932 citing SmiiMp v. Greater Cleveland IEegional Traneir Authority (May 24, 2001),
Cuy. App. No. 78274.
Pattison acknowledg that he failed to meet Lis sales goals for five consecutive years.
Three supervisors document Paftison's poor perfoimance. In November 1999, Pattison was
wamed that he was in jeop y of faIling short of b4s annuzl goals for the second consecutive
year and was taged to estab sh 5% growth or face ebxrective action. In January 2000, Pattison
was warned that if be did no meet first quarter salesl expectations, disciplinary action, including
VUL3351 P00852
Appx. 000041
possible termination would e taken. In 2002, DiMeb conducted an annual performance review
which dooumcnted Pattison' lack of performance. Pattison was the only tenitory manager in
his distric[ who failed to mee his sales goal over a period of fivc years. Tn addition, Pattison was
put on notice for failure to end sales and promotlional meetings, failure to enteYfa.in clients,
failure to file timely reports,
Wbile Pattison argue that he was denied the wpportunity to use Tndians baseball tickets,
that some of his accounts weZe traasfesed to other employees and tbat he was well ]sked by at
least foor or five of his customers, he is nnpeisuasve in establishing that tbose factors would
have made any substantial differettce in his sales figm^s over t.he five year period
The evidence establis$es that imder the Smith;standard, Pattisoa would not be considered
qualified for the job; his p
employer's expcctations of
Grainger's geueral substan
Assuming argucndo
burden sbifts to Grainger td
1discharge. Pattison must ther
facie case would fail. However, it is arguable whether the
ales goals for all salespetsons were legitimate when considering
sales performance.
at Pattison establishesc, a prima facie case of dtsrrizamation, thc
articulate a legitimate non-discriminatory reason for Pattison's
demonstrate thet Gxainger's stated rationale is merely a pretext for
unlawfiil discrimination. Mnne11, supra; Barker 4 Scovill, Inc. (1983), 6 Ohio St 3d 146.
To establish whether employer's reason foz termination is a pretext for discrimination,
an employee must show 1
discriminatory reasons more ]
remains at all times with tb
iat the employer's pfoffered reason is not credrblc or that
cely motivated the emp7oyet's decision. The burden of persoasion
: employee. See, Reeuea v. Sanderson Plumbing Producrs, Inc.
(2000), 530 U.S. 133, 142, 120 S. CC 2097, 2106 citibg Texas Department of Community Affairs
Y. Burdine (1981), 450 LI.S. 2^8, 255-256, 101 S. Ct 1089, 1095.
YUIi`^^51 PG^853.
Appx.000042
In their pleadings motion for summary judgment, Grainger and DiMeo assert that
age played no part in Pattison s tecmination.
Based upon evidence fs discussed earlier, Grainger terminated Pattisoa for his consistent
failure to meet sales goals fir five consecutive yeaTs in addition to Pattison's inability and/or
unwillingncss to adopt DiM^'s suggestions to improve his sales performance. Performance
problems are a legitimate n n-+Ac'•^t^z'^ry reason for termination andan employer has the
right to make business decisi ns.
Pattison argues that ' ger's reasoning for termination is pretextnal: DiMeo admitted
in deposition that the Clevelahd Dishict as a whole i'egularly failed to meet it sales goals; that in
2001 and 2002 only one TTv$ achieved sales goals.,But Pariison, unlike any of the other TM.s
mentioned, failed to make goil for five consecutive Y ears.
Patrison argues that $cott Puhalsky failed t© make sales goals and was considered for
promotion as a National A^ount Manager. Evidance shows that DiD4eo did not support
Puhalsky's bid for promotion because he failed to achieve his sales goal and that Pubalsky never
applied for the promotion. V^hile PuhaLsky trsti.fiecj that he was not warned or disciplined, he
was pressured to meet sales gbals or lose his job.
Pattisoa claims that *ian Waldron was protlroted in July 2002 despite the fact that his
2001 sales were significamlylbelow goal. Evidence indicates that Waidron was moved IateraIly
to anon-sales position and h^
Pattison argues that
tickcts used for entertainin
did not fail to mcet salcs goals for fivc consecutive years.
iMeo intentionally set• him up for failure by withholding Indians
cfients. Pattison faihd to establish how having Indians tickets
substantially affected his sal^s goals. There were dnly four seats and Pattison serviced 2,400
accounts:
^Ol^3^sl P6Q854
Appx.000043
Finally, Paitison ar es that some of his acbovats were transferred to other salesmen
resulting in his faihre to inA
in time to his terminatioa
have changed had he contin
Patterson cannot estal
DiMeo acted with discrimina
Accordingly, Defcn
e sales goals. Appror_imately five accounts were transferred close
Pattison fails to demoustrate how his overall performznce wonld
to service these accounts.
]ish that a genuine iss¢8 of fact remains as to whether Grainger or
ry intent in his terminaition.
ts Grainger and DiMeo's motion for summary judgmeaf
granted. ^
I'I' Is So ORDERED.
NO SUST CAUSE F^R DELAY.
Date: June L7-2005
RECEfYEO FOR FII.ING
JUN E 1 2005G
Wt^^^ I PB085'^HE,'tEBYCNiL„T.Hi:TTHE.l60VEANCF 0^ NANp' ^IEDFOU, HE 161N L'^^ ^NITVOA
^^j(:t
_e
N g:c^Ap^^.L F 5 zD CpJkq .t51L^
ER$T.Clerk
ry
THE 9TAT E OF OHIC 1. GERALC E. FUERST, CLERK OFCuyahuga CcunN SS. THE GC(15T OF COMMON PLEAS
wITy1N ANe FOR SAro COUNTY.
is
Appx. 000044
11
CF'RTiFJCATE OF SERVJCE
A copy:jof the forego g Judgment Entry wa5 sent by regular U.S. mail this 1
of 7une, 2005, tg the follo '
Caryn Groedel, Es .5910 derbrook ve, Suite 200Clevel4d, OH 44124A[1brn for Plaint(ff
and
James fi. Davidson, q.Aaron L Granger, Esq.Schotteustein, Zox & ibunn, L.PA.250 W. StreetColumfiu, OH 43214Attornexs for Defenddnts
I!,
5
Appx.000045
WALLY PATTISONPlaintiff
I^IIIIII^IllIiIIIIIVIIIIIIIIIIIIVIIIIIIii IIIII40231060
IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO
I Case No: CV-03-500620
Judge: NANCY A FUERST
W.W. GRAINGER, INC. ETALDefendant
JOURNAL ENTRY
PURSUANT TO PLTF'S 6/29i06 NOTICE, PLTF'S PUBLIC POLICY CLAIM, ONLY IS DISMISSED WITHOUT PREIUDICE.CIV. R.41(A)(1).
THIS IS A FINAL A, ID APPEALAI3LE ORDER. NO JUST CAUSE FOR DELAY.
Judge Signature 07/09/2006
07/09/2006
Y^!3606 P.'034QRECEIVED FOR FILING
07/1012006 09:11:03By: CLKItM
GERALD E. FUER/S-T, CLERK
1 111^A.1/
Appx.000046P^nn 1 nPi
JIeL'.i7W
Cnoixrt of Appettio of 04tvEIGHTH APPELLATE DISTRICT
COUNTY OF CUYAIIOGA
JOURNAL ENTRY AND OPINIONNo. 88556
WALLY PATTISON
PLAINTIFF-APPELLANT
vs.
W.W. GRAINGER, INC., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:DISMISSED
Civil Appeal from theCuyahoga County Common Pleas Court
Case No. CV-500620
BEFORE: Stewart, J., Celebrezze, A.J., and Blackmon, J.
RELEASED: June 21, 2007
JOURNALIZED:JUL 17 PM CA06088556 46633527
1111111 IIIII IIIII IIIII III^ IIIII NIII Ilill IIII I^I.N6-.01 639 PO0240
Appx. 000047
-1-
ATTORNEYS FOR APPELLANT
Caryn M. GroedelAnthony J. LazzaroJennifer L. SpeckCaryn Groedel & Associates Co., LPA5910 Landerbrook Drive
Suite 200Cleveland, OH 44124
ATTORNEYS FOR APPELLEES
James E. DavidsonAaron L. GrangerShottenstein, Zox & Dunn, LPA250 West StreetP.O. Box 165020Columbus, OH 43215
FILED AND JO'tIRNALIZEDPER APP, R. 22fEJ
JUL 1 72007OERALD E. FUERST
CLERK 0GpU^T oE AppEALS
BY L/^ 0-1F.
ANYOL'19CEIv1EY'f OF 4ECIf10NPRRAPP.RR.E2^W,I^(D AND 261PJ
JUN 21 2007
CA06088556 46078626
11111111 I^^^^ 11111 mi 11111111111111111111111111111111
EWALD E. FUER6TfQ01WT OF APPEALS
®V ' ._..o._epEP.
N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D)and 26(A); Loc.App.R. 22. This decision will be journalized and will become thejudgment and order of the court pursuant to App.R. 22(E) unless a motion forreconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days ofthe announcement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this court's announcementof decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1).
S01 639 'HQ241Appx.000048
-1-
MELODY J. STEWART, J.:
Plaintiff-appellant Wally Pattison appeals from a summary judgment in
favor of defendant-appellees W.W. Grainger, Inc. and Sam DiMeo on his
complaint alleging age discrimination. We find that appellant did not timely file
this appeal under App.R. 4(A). We therefore lack jurisdiction and must dismiss
the appeal.
Appellant filed a two-count complaint alleging age discrimination and
violation of public policy. The court granted Grainger and DiMeo summary
judgment on the age discrimination count, and appellant appealed. We
dismissed the appeal for want of a final appealable order under Civ.R. 54(B)
because the public policy claim remained extant. See Pattison v. W. W. Grainger,
Inc., Cuyahoga App. No. 86698, 2006-Ohio-1845. On June 29, 2006, Pattison
voluntarily dismissed the public policy claim pursuant to Civ.R. 41(A)(1)(a) to
perfect a final appealable order. He then filed his notice of appeal on August 9,
2006.
App.R. 4(A) states that a party shall file a notice of appeal within "thirty
days of the later of entry of the judgment or order appealed ***." Appellant
apparently appealed from the court's July 10, 2006 memorialization of the June
29, 2006 voluntary dismissal. This was erroneous, however, as a Civ.R.
41(A)(1)(a) voluntary dismissal is self-executing - it is effective upon filing.
VAr 639 PGO242Appx.000049
-2-
James u. Allstate Ins. Co. (Mar. 16, 2000), Cuyahoga App. No. 75993; Howard v.
Fiyalko (Oct. 29, 1998), Cuyahoga App. No. 74308. Since a voluntary dismissal
is effective upon filing, it requires no court entry acknowledging the dismissal.
Payton v. Rehberg (1997), 119 Ohio App.3d 183; Andrews v. Sajar Plastics, Inc.
(1994), 98 Ohio App.3d 61. The time in which to appeal began to run on June 29,
2006, not July 10, 2006. More than 30 days had elapsed by August 9, 2006, so
appellant did not timely file his notice of appeal.
This discussion presupposes that a party may, under Civ.R. 41(A)(1),
voluntarily dismiss one of multiple claims for relief as opposed to an entire
action. Civ.R. 41(A)(1)(a) states "a plaintiff, without order of court, may dismiss
all claims asserted by that plaintiff against a defendant" by filing a notice of
dismissal "at any time before the commencement of trial unless a counterclaim
which cannot remain pending for independent adjudication by the court has been
served by that defendant[.]" (Emphasis added.)
Most of the courts in this state have construed the language "all claims"
literally and have held that a party cannot create a final order by dismissing less
than all claims for relief against a defendant. For example, in Borchers v.
Winzeler Excavating Co. (Apr. 10, 1992), Montgomery App. No. 13297, the
Second Appellate District stated, "[i]n our view, Civ.R. 41(A)(1) creates a
mechanism whereby a plaintiff may voluntarily dismiss his entire action,
RU@ 6 39 P0 0 2 4 3 Appx. 000050
-3-
without prejudice. It does not provide for the dismissal, without prejudice, of
part of a cause of action. To do so would permit piecemeal litigation and
piecemeal appeals, which are disfavored in the law." See, also, Savage v. Cody-
Zeigler, Inc., Athens App. No. 06CA5, 2006-Ohio-2760, 134-35. It has been
suggested that amending a complaint pursuant to Civ.R. 15(A) is the proper
procedure to dismiss claims in a multi-count complaint. See, e.g., Reagan v.
Ranger Transp., Inc. (1995), 104 Ohio App.3d 15, 18, citing Serotko U. State Farm
Fire &. Cas. Co. (Sept. 9, 1994), Trumbull App. No. 94-T-5045; Kildow v. Home
Town Improvements (July 23, 2002), Muskingum App. No. CT2001-9957; Lewis
v. J.E. Wiggins & Co., Franklin App. Nos. 04AP-469, 04AP-544 and 04AP-668,
2004-Ohio-6724.
These appellate districts distinguish between the dismissal of parties and
the dismissal of claims for relief. In Denham v. City of New Carlisle, 86 Ohio
St.3d 594, 1999-Ohio-128, the syllabus states "[a] trial court's decision granting
summary judgment based on immunity for one of several defendants in a civil
action becomes a final appealable order when the plaintiff voluntarily dismisses
the remaining parties to the suit pursuant to Civ.R. 41(A)(1)." Consistent with
Denham, these districts conclude that the dismissal of remaining parties is
tantamount to the dismissal of an "action," while dismissal of one or more claims
for relief is not.
ot@539 P00244Appx.000051
-4-
This court has not followed these districts. In Montgomery v. Zalud (Aug.
20, 1998), Cuyahoga App. No. 73021, the panel stated:
"The issue of appealability concerning single party, multi-claim cases,
where a remaining claim is voluntarily dismissed, has met with opposing
interpretations among the Ohio appellate courts. However, this court in Eiland
u. Coldwell BanherHunterRealty (August 14, 1997), Cuyahoga CountyApp. No.
71369, unreported, recently addressed the guidelines for Civ.R. 54(B)
application' to determine what constitutes a final appealable order, and
concluded that in cases where a party has received a partial judgment and
voluntarily dismisses a claim in a single party suit, or a defendant in a
multi-party suit, that partial judgment becomes a final judgment subject to
appeal. Eiland, supra; see, also, Coffey v. Foamex (C.A.6, 1993), 2 F.3d 157, 159
'Those guidelines state:"1. Civ. R. 54(B) will be applied only where there are claims or actions against
parties still presently pending in the trial court."2. If claims or actions against former parties were dismissed without prejudice
at any time during the proceedings below, they will be treated "as if no action had beenbrought at all" as to those parties. DeVille Photography, Inc. v. Bowers (1959), 169Ohio St. 267, 272, 159 N.E.2d 443; Johnston u. Cartwright (C.A.8, 1965), 344 F.2d 773,
774."3. Where it appears that claims or actions are still pending between or among
some or all of the parties below, are not otherwise moot, and the trial court has notproperly certified that there is "no just reason for delay" under Civ. R. 54(B), the casewill be dismissed sua sponte with the right of reinstatement after obtaining a final
appealable order."
Y20 63y PO©245Appx. 000052
-5-
('Plaintiff voluntarily dismissed these claims without prejudice on July 16, 1992
rendering the [March 4, 1992 summary judgment] order final and appealable');
General Auiation, Inc. v. Cessna Aircraft Co. (C.A.6, 1990), 915 F.2d 1038, 1040
(General Aviation's voluntary dismissal of its sole remaining claim after the
court granted partial summary judgment in favor of Cessna on all other claims
made the district court's order final under Fed.R.Civ.P. 54(B)). The logic behind
this interpretation is that although the partial judgment at the time just prior
to the voluntary dismissal is inchoate or interlocutory, once the remaining
claim(s) or party(s) are voluntarily dismissed, a final judgment is rendered. Id.
To hold the opposite, as many appellate courts have, would frustrate the purpose
of Civ.R. 41(A), and thwart otherwise worthy appeals. Id."
We recognize that this court's precedent conflicts with the near unanimity
of our other appellate districts.Z Nevertheless, our precedent has served this
district well. It streamlines the process for obtaining final orders when Civ.R.
54(B) certification has not been obtained. Judicial economy is promoted by
expediting the voluntary dismissal of a claim for relief - it has been our
experience that plaintiffs who voluntarily dismiss a cause of action in order to
2 At least one other panel of this court has raised the issue of voluntary
dismissals of causes of action. In Rodgers v. Cargotec, In.c., Cuyahoga App. No. 83774,2004-Ohio-2848, the panel questioned "whether a plaintiff may voluntarily dismiss,without court order, fewer than all claims asserted against a defendant." Id. at fn.3.The panel did not need to answer that question as it decided the case on other grounds.
4'06 3 9 M0 246 Appx. 000053
-6-
create a final order rarely, if ever, refile those dismissed claims. Piecemeal
litigation has not resulted from our policy, and even if it did, it would be no
different than the piecemeal litigation expressly sanctioned by Civ.R. 54(B).
We view our procedure as preferable to the more cumbersome alternative
whereby a party would have to amend a complaint under Civ.R. 15(A) in order
to delete a claim for relief. See, e.g., Lee v. Gross Lumber Co. (1989), 57 Ohio
App.3d 52, 53. Our misgivings with this approach are based on the
impracticality of forcing a party to seek leave to amend a complaint in order to
delete a claim for relief from a complaint. It is an awkward and protracted
procedure in which the party seeking amendment would first be required to seek
leave of court or obtain written consent by the opposing party before
amendment. See Civ.R. 15(A). The opposing party would then have 14 days in
which to respond. Id. There is nothing econornical in the Civ.R. 15(A) approach.
Civ.R. 54(B) certification is the preferred method for obtaining a final
order in cases where the plaintiff has one or more claims for relief that remain
pending in the trial court. In cases like this, however, where a party deletes a
claim for relief in order to create a final order, we continue to adhere to our prior
precedent and hold that a plaintiff may, under Civ.R. 41(A)(l)(a), voluntarily
dismiss a single cause of action or multiple causes of action in a multi-count
complaint. When appellant voluntarily dismissed the public policy claim, he
V^00 639 @60247Appx.000054
-7-
converted the non-final summary judgment on the age discrimination claim into
a final order. That dismissal became effective upon filing, not memorialization
by the court. It follows that appellant did not timely file his notice of appeal. We
therefore lack jurisdiction to hear this appeal.3
Appeal dismissed.
It is ordered that appellees recover of appellant their costs herein taxed.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
FRA`KK D. CELEBREZZE, JR., A.J., andPATRICIA ANN BLACKMON, J., CONCUR
3 In light of the obvious conflict between this district and others on thevoluntary dismissal issue, we have, concurrent with the release of this opinion, certifiedto the supreme court the following question: in a case where a plaintiff has assertedmultiple claims against a single defendant and some of those claims have been ruledupon but not converted into a final order with Civ.B.. 54(B), can the plaintiff create afinal order by voluntarily dismissing pursuant to Civ.R. 41(A) the remaining claimsasserted against that defendant.
V0638 000248Appx. 000055
RULE 41. Dismissal of Actions
(A) Voluntary dismissal: effect thereof.
( 1) By plaintiff; by stipulation. Subject to the provisions of Civ. R. 23(E), Civ. R.
23.1, and C'iv. R. 66, a plaintiff, without order of cowt, may dismiss all claims asserted by thatplaintiff against a defendant by doing either of the following:
(a) filing a notice of dismissal at any time before the commencement of trial unless acounterclaim which cannot remain pending for independent adjudication by the court has beenserved by that defendant;
(b) filing a stipulation of dismissal signed by all parties who have appeared in the
action
Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is withoutprejudice, except that a notice of dismissal operates as an adjudication upon the merits of anyclaim that the plaintiff has once dismissed in any court.
(2) By order of court. Except as provided in division (A)(1) of this rule, a claimshall not be dismissed at the plaintifPs instance except upon order of the court and upon suchterms and conditions as the court deems proper. If a counterclaim has been pleaded by adefendant prior to the service upon that defendant of the plaintiffs motion to dismiss, a claimshall not be dismissed against the defendant's objection unless the counterclaim can remainpending for independent adjudication by the court. Unless otherwise specified in the order, adismissal under division (A)(2) of this rule is without prejudice.
(B) Involuntary dismissal: effect thereof.
(1) Failure to prosecute. Where the plaintiff fails to prosecute, or comply with theserules or any court order, the court upon motion of a defendant or on its own motion may, afternotice to the plaintiffs counsel, dismiss an action or claim.
(2) Dismissal; non-jury action. After the plaintiff, in an action tried by the courtwithout a jury, has completed the presentation of the plaintiff's evidence, the defendant, withoutwaiving the right to offer evidence in the event the motion is not granted, may move for adismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.The court as trier of the facts may then determine them and render judgment against the plaintiffor may decline to render any judgment until the close of all the evidence. If the court rendersjudgment on the merits against the plaintiff, the court shall make findings as provided in Civ. R.
52 if requested to do so by any party.
Appx.000056
(3) Adjudication on the merits; exception. A dismissal under division (B) of thisrule and any dismissal not provided for in this rule, except as provided in division (B)(4) of'thisrule, operates as an adjudication upon the nierits unless the court, in its order for dismissal,otherwise specifies.
(4) Failure other than on the merits. A dismissal for either of the following reasonsshall operate as a failure otherwise than on the merits:
(a) lack ofjurisdiction over the person or the subject matter;
(b) failure to join a party under Civ. R. 19 or Civ. R. 19.1
(C) Dismissal of counterclaim, cross-claim, or third-party claim. The provisionsof this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. Avoluntary dismissal by the claimant alone pursuant to division (A)(1) of this rule shall be madebefore the commencement of trial.
(D) Costs of previously dismissed action. If a plaintiff who has once dismissed aclaim in any court commences an action based upon or including the same claim against thesame defendant, the court may make such order for the payment of costs of the claim previouslydismissed as it may deem proper and may stay the proceedings in the action until the plaintiff hascomplied with the order.
[Effective: July 1, 1970; amended effective July 1, 1971; July 1, 1972; July 1, 2001.]
Staff Note (July 1, 2001 Amendment)
Civil Rule 41 Dismissal of Actions
This rule was amended (1) to reflect more precisely its interpretation by theSupreme Court in Denham v. City of New Carlisle, 86 Ohio St. 3d 594 (1999); (2) toconform Civ. R. 41(D) with Civ. R. 41(A) as amended; and (3) to reflect that Civ. R. 23.1provides that a shareholder derivative action "shall not be dismissed or compromisedwithout the approval of the court."
In divisions (B) and (C), masculine references were changed to gender-neutrallanguage, the style used for rule references was changed, and other grammaticalchanges were made. No substantive amendment to divisions (B) and (C) was intended.
Appx.000057