[Cite as Edwards v. Perry Twp. Bd. of Trustees, 2016-Ohio-5125.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JOHN EDWARDS, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellant : Hon. Willam B. Hoffman, J. : Hon. Craig R. Baldwin, J. -vs- : : PERRY TOWNSHIP BOARD : Case No. 2015CA00107 OF TRUSTEES, : : Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2014 CV 01744
JUDGMENT: Affirmed in part; Reversed And Remanded in part
DATE OF JUDGMENT: July 25, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
DAVID K. SCHAFFNER GREGORY A. BECK Schaffner Law Offices, Co., LPA MEL LUTE, JR. 132 Fair Avenue, NW Baker, Dublikar, Beck, New Philadelphia, Ohio 44663 Wiley & Mathews 400 South Main Street North Canton, Ohio 44720 DOUGLAS C. BOND 116 Cleveland Avenue, NW Canton, Ohio 44702 Stark County, Case No. 2015CA00107 2
Baldwin, J.
{¶1} Plaintiff-appellant John Edwards appeals from the May 5, 2015 Judgment
Entry of the Stark County Court of Common Pleas granting the Motion for Summary
Judgment filed by defendant-appellee Perry Township Board of Trustees.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant John Edwards, who is now deceased1, was employed by appellee
Perry Township Board of Trustees since the summer of 2000 in the parks department.
On July 24, 2014, appellant, who was African-American, filed a complaint against
appellee alleging intentional infliction of emotional distress and discrimination. Appellant
also set forth claims for promissory estoppel and violation of mandatory health insurance.
Appellee filed an answer to the complaint on August 11, 2014.
{¶3} Subsequently, on March 9, 2015, appellee filed a Motion for Summary
Judgment. On March 20, 2015, appellant dismissed his claims alleging intentional
infliction of emotional distress and promissory estoppel. Appellant filed a memorandum
in opposition to the Motion for Summary Judgment on March 30, 2015 and appellee filed
a reply brief on April 13, 2015.
{¶4} Pursuant to a Judgment Entry filed on May 5, 2015, the trial court granted
appellee’s Motion for Summary Judgment.
{¶5} Appellant now raises the following assignments of error on appeal:
1 Appellant’s counsel filed a Suggestion of Death with this Court on January 12, 2016. Since such time, there has been no motion filed for substitution of any personal representative. See App.R. 29(A). If there is no representative, then the proceedings shall be had as the court of appeals may direct. Id. We direct that this appeal be continued and determined as if appellant was not deceased. Stark County, Case No. 2015CA00107 3
{¶6} I. THE TRIAL COURT ERRED BY ACCEPTING THE LEGAL
ARGUMENTS AND AFFIDAVITS WHICH WERE PRESENTED FOR THE FIRST TIME
IN APPELLEE’S REPLY BRIEF, TO WHICH NO FURTHER RESPONSE WAS
PERMITTED.
{¶7} II. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT
WHEN GENUINE ISSUES OF MATERIAL FACT EXIST AND WHEN IT ERRONEOUSLY
APPLIED THE LAW TO THE FACTS OF THIS CASE.
I
{¶8} Appellant, in his first assignment of error, argues that the trial court erred
when, in granting appellee’s Motion for Summary Judgment, it accepted and considered
legal arguments and affidavits which were presented for the first time in appellee’s reply
brief. Appellant specifically contends that the trial court should not have considered a new
defense and two affidavits.
{¶9} “Typically reply briefs are restricted to matters in rebuttal, not new
arguments. The problem with allowing a new argument to be asserted in a reply in support
of the original motion is that it does not give the party opposing the motion the opportunity
to respond. Buren v. Karrington Health, Inc., 10th Dist. No. 00AP–1414, 2002–Ohio–206.”
Lawson v. Mahoning Cnty. Mental Health Bd., 7th Dist. Mahoning No. 10 MA 23, 2010–
Ohio–6389, ¶ 50. Allowing a new argument to be asserted in a reply has been
characterized as “summary judgment by ambush.” Intl. Fid. Ins. Co. v. TC Architects, Inc.,
9th Dist. Summit No. 23112, 2006–Ohio–4869, ¶ 11. “[W]hen a new argument is raised
in a reply or supplemental motion for summary judgment, the proper procedure is to strike
the reply or supplemental motion or, alternatively, to allow the opposing party to file a Stark County, Case No. 2015CA00107 4
surreply. Smith [v. Ray Esser & Sons, Inc. 9th Dist. No. 10CA009798, 2011–Ohio–1529]
at ¶ 15, citing Lawson at ¶ 50–51.” Baker v. Coast to Coast Manpower, L.L.C., 3rd Dist.
Hancock No. 5–11–36, 2012–Ohio–2840, ¶ 35.
{¶10} Appellant did not attempt to strike the affidavits, nor did he seek leave to file
a surreply. We find that appellant has waived any error by failing to move to strike the
affidavit or seeking leave to file a surreply. Bank of New York Mellon v. Crates, 5th Dist.
Licking No. 15-CA-70, 2016-Ohio-2700 at paragraph 22.
{¶11} Appellant’s first assignment of error is, therefore, overruled.
II
{¶12} Appellant, in his second assignment of error, argues that the trial court erred
in granting appellee’s Motion for Summary Judgment.
{¶13} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment which
provides, in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence in the pending case and written stipulations of fact,
if any, timely filed in the action, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a
matter of law.* * * A summary judgment shall not be rendered unless it
appears from such evidence or stipulation, and only from the evidence or
stipulation, that reasonable minds can come to but one conclusion and that
conclusion is adverse to the party against whom the motion for summary Stark County, Case No. 2015CA00107 5
judgment is made, that party being entitled to have the evidence or
stipulation construed most strongly in the party's favor.
{¶14} The moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record before the trial
court, which demonstrate the absence of a genuine issue of fact on a material element of
the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996–Ohio–107,
662 N.E.2d 264. The nonmoving party then has a reciprocal burden of specificity and
cannot rest on the allegations or denials in the pleadings, but must set forth specific facts
by the means listed in Civ.R. 56(C) showing that a triable issue of fact exists. Mitseff v.
Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).
{¶15} Pursuant to the above rule, a trial court may not enter summary judgment if
it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,
1977–Ohio–259, 674 N.E.2d 1164, citing Dresher v. Burt, supra.
{¶16} In his complaint, appellant alleged, in part, that appellee failed to provide
health care benefits to him as required by R.C. 505.60(A). The trial court, in its May 5,
2015 Judgment Entry, held that such statute does not create a private right of action and
that, therefore, appellant’s claim must fail.
{¶17} R.C. 505.60 provides, in relevant part, as follows:
{¶1} As provided in this section and section 505.601 of the
Revised Code, the board of township trustees of any township may
procure and pay all or any part of the cost of insurance policies that
may provide benefits for hospitalization, surgical care, major medical
care, disability, dental care, eye care, medical care, hearing aids, Stark County, Case No. 2015CA00107 6
prescription drugs, or sickness and accident insurance, or a
combination of any of the foregoing types of insurance for township
officers and employees. The board of township trustees of any
township may negotiate and contract for the purchase of a policy of
long-term care insurance for township officers and employees
pursuant to section 124.841 of the Revised Code.
If the board procures any insurance policies under this
section, the board shall provide uniform coverage under these
policies for township officers and full-time township employees and
their immediate dependents, and may provide coverage under these
policies for part-time township employees and their immediate
dependents, from the funds or budgets from which the officers or
employees are compensated for services, such policies to be issued
by an insurance company duly authorized to do business in this
state…. (Emphasis added)
{¶18} R.C. 505.60 further states as follows: (G) As used in this section and section
505.601 of the Revised Code:
{¶19} “Part-time township employee” means a township employee who is hired
with the expectation that the employee will work not more than one thousand five hundred
hours in any year.
{¶20} The trial court, in its Judgment Entry, found that R.C. 505.60 did not create
a private right of action. As noted by the court in Anderson v. Smith, 196 Ohio App.3d
540, 2011-Ohio-5619, 674 N.E.2d 731, paragraph 10 (10th Dist): Stark County, Case No. 2015CA00107 7
In determining whether a private right of action should be inferred
from a statute, Ohio courts have relied on a three-part test adapted from the
United States Supreme Court decision in Cort v. Ash (1975), 422 U.S. 66,
95 S.Ct. 2080, 45 L.Ed.2d 26. Strack v. Westfield Cos. (1986), 33 Ohio
App.3d 336, 337, 515 N.E.2d 1005; Doe v. Adkins (1996), 110 Ohio App.3d
427, 435, 674 N.E.2d 731; Gomez v. Noble Cty. Children Servs., 7th Dist.
No. 09 NO 361, 2010-Ohio-1538, 2010 WL 1316705 (Waite, J., concurring
in part and dissenting in part). That test examines (1) whether the statute
creates a right in favor of the plaintiff, (2) whether there is any indication of
legislative intent, explicit or implicit, to create or deny a remedy through
private right of action, and (3) whether it is consistent with the underlying
purposes of the legislative scheme to infer such a remedy. Strack at 337,
515 N.E.2d 1005; Adkins at 435, 674 N.E.2d 731. (Footnote omitted)
{¶21} In the case sub judice, R.C. 505.60(A) states, in pertinent part, that “If the
board procures any insurance policies under this section, the board shall provide uniform
coverage under these policies for township officers and full-time township employees and
their immediate dependents,…” As noted by appellant, R.C. 505.60 creates two separate
classes of employees. The first class contains employees who work part-time (1500 hours
or less) who are not required to be insured and the second class contains full-time
employees (more than 1500 hours) who must be insured if insurance is offered. We find
that R.C. 505.60(A) creates a right in favor of appellant provided that he is a full-time
employee and that the use of the term “shall” indicates a legislative intent to create an
enforceable right. As noted by appellant. “there is no legislative intent to be gleaned on Stark County, Case No. 2015CA00107 8
whether or not there was an intent to allow private enforcement; therefore we have a
conundrum of a clear right in favor or certain individuals without an obvious remedy.” If a
private right of action is not implied, full-time employees will have no remedy for any
breach of the duty to provide insurance. We, therefore, disagree with the trial court and
find that an implied cause of action exists under R.C. 505.60 for failure to provide health
insurance to full-time employees.
{¶22} The next issue to consider is whether or not appellant was a full-time
employee. We note that the trial court never addressed such issue, having found that
there was no private right of action under R.C. 505.60.
{¶23} As is stated above, a full-time employee is defined by R.C. 505.60(G) as
one working more than 1500 hours a year. Appellee, in its reply brief in the trial court,
conceded that “there is a genuine issue of material fact regarding the number of hours
[appellant] has worked annually.” Thus, there is an issue of fact as to whether or not
appellant was part-time or full-time.
{¶24} However, appellee argues that appellant signed a written waiver of any
right that he had to health care coverage by signing, on June 7, 2010, a “Waiver of Health
Insurance Pursuant to ORC 505.60(B).” The waiver states as follows:
{¶25} I, John Edwards, am employed as a part-time employee by the Perry
Township Board of Trustees in the park Department as a laborer.
{¶26} As a part-time employee my expectation is that I will not work more than
one thousand five hundred hours in any year.
{¶27} However, I understand that I may voluntarily waive certain statutory rights,
benefits and entitlements such as a limitation on hours of work, insurance policies, and Stark County, Case No. 2015CA00107 9
other benefits afforded to full-time employees in order to be eligible to work more than
{¶28} Since any Township employee may refuse to accept insurance coverage, a
limitation on hours of work and other benefits, afforded to full-time employees without
affecting the availability of such insurance coverage to other Township officers and
employees, I voluntarily refuse to accept them.
{¶29} Because the waiver refers to appellant as part-time, rather than full-time,
and there is a genuine issue of material fact as to whether or not appellant was part-time
or full-time, we find that there is a genuine issue of material fact as to whether or not
appellant knowingly waived any health care coverage. We find, therefore, that the trial
court erred in granting summary judgment in favor of appellee on appellant’s medical
insurance claim.
{¶30} Appellant, as is stated above, also alleged that appellee discriminated
against him on the basis of race. R.C. 4112.02(A) states as follows:
It shall be an unlawful discriminatory practice * * * [f]or any employer,
because of the race, color, religion, sex, military status, national origin,
disability, age, or ancestry of any person, to discharge without just cause,
to refuse to hire, or otherwise to discriminate against that person with
respect to hire, tenure, terms, conditions, or privileges of employment, or
any matter directly or indirectly related to employment.
{¶31} A plaintiff in a discrimination lawsuit may pursue “essentially, two theories
of employment discrimination: disparate treatment and disparate impact.” Albaugh v.
Columbus, Div. of Police, 132 Ohio App.3d 545, 550, 725 N.E.2d 719 (10th Dist.1999), Stark County, Case No. 2015CA00107 10
citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 123 L.Ed.2d 338
(1993). Appellant, in the case sub judice, alleges disparate treatment. In a disparate
treatment claim, a plaintiff has the initial burden of establishing discrimination through
either direct or indirect evidence of discrimination. Bucher v. Sibcy Cline, Inc., 137 Ohio
App.3d 230, 239, 738 N.E.2d 435 (1st Dist.2000), citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Where a plaintiff has
no direct evidence of discrimination, a prima facie case of discrimination may be made
through indirect evidence under the burden-shifting framework the United States
Supreme Court established in McDonnell Douglas.
{¶32} Under McDonnell Douglas, a plaintiff first must demonstrate: (1) he or she
is a member of a protected class; (2) he or she suffered an adverse employment action;
(3) he or she was qualified for the position in question; and (4) the employer treated a
non-protected, similarly-situated person more favorably. Veal v. Upreach, L.L.C., 10th
Dist. No. 11AP–192, 2011–Ohio–5406 at paragraph 21, citing McDonnell–Douglas at
802. Once a plaintiff demonstrates a prima facie case, the employer is required to set
forth some legitimate, non-discriminatory basis for its action. Id. If the employer meets its
burden, a plaintiff must be afforded an opportunity to prove by a preponderance of the
evidence that the legitimate reasons the employer offered were not its true reasons for its
actions but were a pretext for discrimination. Id., citing Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The ultimate
burden of persuasion always remains with the plaintiff. Id. at 256.
{¶33} Appellant argues that “[t]his case… is rife with direct evidence of racial
animus” towards him. Appellant notes that during his deposition, he testified that Tom Stark County, Case No. 2015CA00107 11
Ross, his supervisor at the time, stated that appellant was “the first black, the only black,
and there won’t be another black hired into the Township…” Appellant’s Deposition at 17.
Appellant also contends that the Township’s Law Director made a comment to him that
he would have “fired my black ass.” Appellant’s Deposition at 21. Appellant, it is significant
to note, was not fired. Moreover, neither individual had control over appellant’s hiring or
promotion. Furthermore, other than these two alleged statements made during a 15 year
period, appellant cannot point to any other direct evidence of discrimination.
{¶34} With respect to circumstantial evidence of discrimination, appellant, in his
brief, contends that there was evidence that he asked to be considered for six positions
within the last six years and that all of the positions were filled by white workers. While
appellant, in his brief, asserts that appellee has hired six full-time and several seasonal
employees, all who were white, within the six year limitations period, we concur with
appellee that appellant had presented no evidence as who the employees were or the
positions that they filled.
{¶35} Moreover, we note that appellant’s statement contradicts his deposition
testimony. Appellant, during his June 2014 deposition, testified that there were three
positions in the road department in which he was interested. He testified that he filled out
an application to work in the road department “I want to say about twelve years ago.
Between ten and twelve years ago…” Appellant’s Deposition at 10. Appellant, when
asked, stated that he did not feel that he was more qualified than the person who was
hired for that positon. The next position that appellant was interested in was also in the
road department approximately two years later. As noted by the trial court, the statute of
limitations for claims brought under R.C. 4112.99 is six years. See Jackson v. Internatl. Stark County, Case No. 2015CA00107 12
Fiber, 169 Ohio App.3d 395, 863 N.E.2d 189, 2006-Ohio-5799, at ¶ 20, citing Cosgrove
v. Williamsburg of Cincinnati Mgt. Co., Inc., 70 Ohio St.3d 281, 638 N.E.2d 991 (1994),
syllabus. Finally, while appellant applied for positions as a driver in the road department,
as stated in the affidavit of Chris Young, the Assistant Road Superintendent for Perry
Township, the union contract applicable to the department required all workers in the road
department to have a Class A CDL (commercial driver’s license). Young, in his affidavit,
further stated that “[a]ll persons hired by the Perry Township Board of Trustees as drivers
for the Road Department since 2001 had held a Class A CDL.” Appellant did not hold a
Class A CDL.
{¶36} The only position that appellant was interested in that falls within the six
year statute of limitations was a position as a mechanic in the road department. While
appellant testified during his deposition that he had been employed in the field of auto
mechanics before, he admitted that he did not have a certification in the field of auto
mechanics and had not taken any courses in the field. Moreover, appellant never filled
out an application for the position.
{¶37} Additionally, when asked during his deposition whether he knew the
qualifications of the other employees who were hired for the positions that he was
interested in, appellant indicated that he did not.
{¶38} Appellant, in his brief, also cites to affidavits attached to his memorandum
in opposition to appellee’s Motion for Summary Judgment in support of his argument that
he was qualified for the positions for which he applied and that he was treated unfairly by
appellee. Appellant, in support of his memorandum in opposition to appellee’s Motion for
Summary Judgment, attached his own affidavit and affidavits from his direct supervisor Stark County, Case No. 2015CA00107 13
and other employees. Appellant, in paragraph 12 of his affidavit, stated that he “was
qualified for each of these positions.” Don Fowler, who worked with appellant, stated in
his affidavit that appellant was “qualified and trained for these jobs [other jobs in the Road
Department] and could have done them very well” and that appellant had seniority over
other individuals hired into the Road Department. He further stated that in his opinion,
appellant “was not treated fairly because he was not afforded the same opportunities as
other employees and was not treated fairly with regard to opportunities to advance or
obtain full time employment.” In his affidavit, Kenny Shreffler, appellant’s direct
supervisor, stated that appellant was “a very good worker and always worked hard” and
that appellant had seniority over other applicants who were hired. Jeff Ferguson,
appellant’s co-worker, stated in his affidavit that appellant had “applied for other jobs in
the Road Department and also as a mechanic with the Township” and “was qualified for
these jobs…”
{¶39} However, none of the witnesses stated exactly how appellant was treated
unfairly or that any unfair treatment was due to his race. They did not identify the job
openings or related duties or explain how appellant was qualified for the same, but rather
made generic allegations. We concur with appellee that these unsupported generic
allegations were insufficient to overcome summary judgment.
{¶40} Based on the foregoing, we find that the trial court did not err in granting
summary judgment in favor of appellee on appellant’s racial discrimination claim. We find
that appellant has failed to demonstrate that there is a genuine issue of material fact as
to whether or not he was discriminated against on the basis of face and that appellee has
articulated a non-discriminatory reason for not promoting appellant. Stark County, Case No. 2015CA00107 14
{¶41} Appellant’s second assignment of error is, therefore, sustained in part and
affirmed in part.
{¶42} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed in part and reversed in part. This matter is remanded to the trial court for further
proceedings consistent with this Opinion.
By: Baldwin, J.
and Gwin, P.J. concur.
Hoffman, P.J. concurs in part and dissents in part Stark County, Case No. 2015CA00107 15
Hoffman, J., concurring in part and dissenting in part
{¶43} I concur in the majority’s analysis and disposition of Appellant’s second
assignment of error.
{¶44} I further concur in the majority’s analysis and decision in Appellant’s first
assignment of error R.C. 505.60 does imply a private cause of action for failure to provide
health care insurance to full-time employees. However, I would not proceed to address
whether Appellant was a part-time or full-time employee or whether his waiver of benefits
was knowingly made because the trial court never addressed those issues. Lycan v.
Cleveland, 146 Ohio St.3d 29, 2016-Ohio-422 [citing Bowen v. Kilkare, Inc., 63 Ohio St.3d
84, 89, 585 N.E. 2d 384 (1992)], at ¶21.
{¶45} Accordingly, I dissent from that portion of the majority’s opinion which
proceeds to do so.