Swink v. Greater Cleveland Regional Transit Authority

925 N.E.2d 1031, 185 Ohio App. 3d 813
CourtOhio Court of Appeals
DecidedNovember 19, 2009
DocketNo. 92725
StatusPublished

This text of 925 N.E.2d 1031 (Swink v. Greater Cleveland Regional Transit Authority) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swink v. Greater Cleveland Regional Transit Authority, 925 N.E.2d 1031, 185 Ohio App. 3d 813 (Ohio Ct. App. 2009).

Opinions

Colleen Conway Cooney, Administrative Judge.

{¶ 1} Plaintiff-appellant, Thomas Swink, appeals the trial court’s grant of summary judgment for the defendant-appellee, Greater Cleveland Regional Transit Authority (“RTA”). Finding no merit to the appeal, we affirm.

{¶ 2} This ease arose in November 2006, when Swink, a former employee of RTA, sued RTA, claiming that he had been constructively discharged and wrongfully terminated on the basis of race and in violation of public policy. In January 2009, the trial court granted RTA’s motion for summary judgment.

[816]*816{¶ 3} Swink appeals, arguing in his sole assignment of error that the trial court erred in granting summary judgment.

{¶ 4} The following facts underlie this appeal. RTA is a political subdivision of the state of Ohio that operates public bus and rail transportation services.

{¶ 5} Swink began his career with RTA in May 1997 as a maintenance training specialist and was promoted to the position of equipment manager for the Woodhill-Triskett District in May 2000. It is undisputed that he was an at-will employee. His supervisor was William Eltrich, the director of the Triskett operation. As equipment manager, Swink participated in the construction of the new Triskett Road bus garage. Miklos Nagy, an RTA senior engineer, was the project manager for the new Triskett garage project. Swink and Nagy worked closely together on the project.

{¶ 6} RTA retained the architectural and design firm of Richard L. Bowen to write the scope of the work that was to include the same design as the Hayden Road garage. However, at Swink’s insistence, the Triskett garage was to contain a gantry bus-wash system rather than the drive-through style that the Hayden Road garage contained.

{¶ 7} RTA solicited bids for the project but solicited a second round of bids because of procedural problems. The general trades contract for the project was awarded to the A.M. Higley Company.

{¶ 8} Construction began in August 2003, and in October 2003, Higley requested permission to substitute a less expensive bus-wash system, the NS brand system. Nagy gave the substitution request to Swink but warned him not to challenge it. Swink refused Higley’s request, so Nagy asked him to prepare a detailed report explaining why the NS system did not meet the contract’s requirements. Higley had based its winning bid on the NS system, so its costs would increase if it had to use the Whiting system, which complied with RTA contract requirements.

{¶ 9} In August 2004, two months before RTA terminated Swink, Tony Husczca warned Swink that RTA was watching him and wanted to get rid of him. Husczca was the Triskett garage project’s construction superintendent and second in command to Nagy. He told Swink that Swink was taking money out of people’s pockets with his insistence on the Whiting system. Swink received similar warnings from A1 King, the transportation manager at the Triskett garage, and from Tony Russo, the equipment manager at RTA’s Central Bus Maintenance facility.

{¶ 10} On August 30, 2004, Swink removed empty RTA barrels from the back of an RTA facility with the help of an employee whom he supervised. Swink did not have permission to take the empty barrels. He returned them the next day [817]*817and threw them in the dumpster with the help of his crew chief. He claimed that RTA employees routinely took these barrels without permission.

{¶ 11} On October 4, 2004, RTA transit police received letters from several RTA employees stating that they had observed Swink removing RTA-owned barrels. The transit police concluded that Swink had violated a rule in the RTA personnel, policies, and procedures manual, which governed Swink’s employment. Specifically, the manual forbade employees to remove RTA property for personal or private gain. Employees violating the policy could be disciplined, up to and including termination.

{¶ 12} Eltrich recommended that RTA discharge Swink for his behavior. He met with Swink on November 12, 2004, to inform him that the transit police investigation showed that Swink had removed the barrels and violated RTA policy. Swink requested to meet with Michael York, RTA’s deputy general manager of operations, and Scott Ferraro, RTA’s director of labor and employee relations. When the three met, Swink defended himself, and York and Ferraro advised him that he could resign. Swink returned to his office and worked the remainder of the day. Three days later, Swink resigned.

{¶ 13} Appellate review of summary judgment is de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co. (1998), 124 Ohio App.3d 581, 585, 706 N.E.2d 860. The Ohio Supreme Court set forth the appropriate test in Zivich v. Mentor Soccer Club (1998), 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201, as follows:

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274.

{¶ 14} Once the moving party satisfies its burden, the nonmoving party “may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385, 667 N.E.2d 1197. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138.

[818]*818{¶ 15} On appeal, Swink challenges only the dismissal of his claims for constructive discharge in violation of public policy and breach of implied contract. Swink’s complaint alleged that he had “a right to be treated fairly and impartially prior to his termination,” i.e., that he was entitled to a pretermination hearing. “Ohio, however, does not recognize claims for breach of covenant of good faith and fair dealing in wrongful discharge actions.” Smith v. Council for Economic Opportunities in Greater Cleveland (Oct. 12, 1995), Cuyahoga App. No. 68032, 1995 WL 601118; Kuhn v. St. John & West Shore Hosp. (1989), 50 Ohio App.3d 23, 552 N.E.2d 240. And the evidence in the instant case demonstrates that Swink received a pretermination hearing when he met with York and Ferraro three days before he submitted his resignation.

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Bluebook (online)
925 N.E.2d 1031, 185 Ohio App. 3d 813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swink-v-greater-cleveland-regional-transit-authority-ohioctapp-2009.