[Cite as Davidson v. Ziegler Tire & Supply Co., 2013-Ohio-2655.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ROBERT J. DAVIDSON JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellant Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 2012 CA 00165
ZIEGLER TIRE AND SUPPLY CO.
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 2012 CV 00104
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 24, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
MICHAEL B. BOWLER KRISTEN S. MOORE
VINCENT V. VIGLUICCI DANIEL E. CLEVENGER
BLAKEMORE, MEEKER & BOWLER DAY KETTERER
19 North High Street 200 Market Avenue North, Suite 300
Akron, Ohio 44308 Canton, Ohio 44702
Stark County, Case No. 2012 CA 00165 2
Wise, J.
{¶1} Plaintiff-Appellant Robert J. Davidson appeals the decision of the Court of
Common Pleas, Stark County, which granted summary judgment in favor of Defendant-
Appellee Ziegler Tire and Supply Co. on appellant’s civil complaint for age
discrimination and breach of contract. The relevant facts leading to this appeal are as
follows.
{¶2} Appellant Robert J. Davidson was hired as the general manager of
Appellee Ziegler Tire & Supply Company in June 2001. The hiring decision was made
by appellee’s president, William Ziegler. In order to take the job with Appellee Ziegler
Tire, appellant left his position as Michelin Tire's director of national dealer sales.
Appellant had been employed with Michelin Tire for twenty-two years.
{¶3} Mr. Ziegler terminated appellant in June 2009. At the time of his
termination, appellant was fifty-five years old and the company’s highest-paid employee.
According to appellant, he was replaced by Nathan Clements, who was thirty-three
years old.
{¶4} On May 17, 2010, appellant filed a complaint in the Stark County Court of
Common Pleas (case no. 2010-CV-01936), in which he claimed age discrimination
under R.C. 4112.14, breach of contract, and unjust enrichment. In January 2011,
appellant voluntarily dismissed that complaint without prejudice.
{¶5} On January 9, 2012, appellant again filed a complaint in the Stark County
Court of Common Pleas (case no. 2012-CV-00104), in which he claimed age
discrimination under R.C. 4112.14 and breach of contract. Appellee filed an answer on
January 24, 2012.
Stark County, Case No. 2012 CA 00165 3
{¶6} In a scheduling order dated February 14, 2012, the trial court set a
number of deadlines, including a discovery cut-off date of October 5, 2012.
{¶7} On April 3, 2012, appellee filed a motion for summary judgment. Appellant
filed a memorandum in opposition to summary judgment on May 2, 2012. On August 3,
2012, appellee filed a supplemental motion for summary judgment.
{¶8} On August 14, 2012, prior to appellant responding to the supplemental
motion for summary judgment, the trial court issued a judgment entry granting summary
judgment in favor of appellee. Appellant’s trial counsel, apparently prior to becoming
aware of said summary judgment entry, filed a memorandum in opposition to appellee’s
supplemental motion for summary judgment, which was filed with the court on August
16, 2012.
{¶9} On August 27, 2012, appellant filed a “motion for reconsideration” of the
granting of summary judgment. The trial court did not address the reconsideration
request.
{¶10} On September 11, 2012, appellant filed a notice of appeal. He herein
raises the following three Assignments of Error:
{¶11} “I. THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE
ZIEGLER TIRE & SUPPLY CO. SUMMARY JUDGMENT ON APPELLANT
DAVIDSON’S AGE DISCRIMINATION CLAIM BECAUSE THERE IS A GENUINE
DISPUTE AS TO WHETHER APPELLANT DAVIDSON WAS REPLACED BY NATHAN
CLEMENTS, A SUBSTANTIALLY YOUNGER INDIVIDUAL.
{¶12} “II. THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE
ZIEGLER TIRE & SUPPLY CO. SUMMARY JUDGMENT ON APPELLANT
Stark County, Case No. 2012 CA 00165 4
DAVIDSON’S BREACH OF CONTRACT CLAIM BECAUSE THERE IS A GENUINE
DISPUTE AS TO WHETHER APPELLANT DAVIDSON HAD AN EMPLOYMENT
CONTRACT WITH APPELLEE ZIEGLER TIRE & SUPPLY CO.
{¶13} “III. THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE
ZIEGLER TIRE & SUPPLY CO. SUMMARY JUDGMENT ON ALL OF APPELLANT
DAVIDSON’S CLAIMS ON AUGUST 14, 2012, ALMOST TWO MONTHS IN ADVANCE
OF THE OCTOBER 5, 2012 DISCOVERY CUTOFF DATE ESTABLISHED BY THE
COURT, WHEN THE PLAINTIFF PREVIOUSLY HAD CRITICAL DISCOVERY
DEPOSITIONS SCHEDULED AND NOTICED FOR AUGUST 21 AND AUGUST 24,
2012. FURTHERMORE, THE TRIAL COURT DID NOT GIVE APPELLANT DAVIDSON
AN OPPORTUNITY TO RESPOND TO APPELLEE'S SUPPLEMENTAL MOTION FOR
SUMMARY JUDGMENT IN ACCORDANCE WITH ITS SCHEDULING ORDER.”
I.
{¶14} In his First Assignment of Error, appellant contends the trial court erred in
granting summary judgment in favor of appellee on the issue of age discrimination,
specifically regarding his assertion of replacement by a younger worker. We disagree.
{¶15} Civ.R. 56(C) provides: “Summary judgment shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, 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 the evidence or stipulation, and only from the evidence or
stipulation, that reasonable minds can come to but one conclusion and that conclusion
Stark County, Case No. 2012 CA 00165 5
is adverse to the party against whom the motion for summary judgment is made, that
party being entitled to have the evidence or stipulation construed most strongly in the
party's favor. * * *.”
{¶16} As an appellate court reviewing summary-judgment issues, we must stand
in the shoes of the trial court and conduct our review on the same standard and
evidence as the trial court. Porter v. Ward, Richland App. No. 07 CA 33, 2007–Ohio–
5301, 2007 WL 2874308, ¶ 34, citing Smiddy v. Wedding Party, Inc. (1987), 30 Ohio
St.3d 35, 30 OBR 78, 506 N.E.2d 212. The party moving for summary judgment bears
the initial burden of informing the trial court of the basis for its motion and identifying
those portions of the record that demonstrate the absence of a genuine issue of
material fact. The moving party may not make a conclusory assertion that the
nonmoving party has no evidence to prove its case. The moving party must specifically
point to some evidence that demonstrates that the nonmoving party cannot support its
claim. If the moving party satisfies this requirement, the burden shifts to the nonmoving
party to set forth specific facts demonstrating that there is a genuine issue of material
fact for trial. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, citing
Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264. A fact is material when it
affects the outcome of the suit under the applicable substantive law. See Russell v.
Interim Personnel, Inc. (1999), 135 Ohio App.3d 301, 304, 733 N.E.2d 1186.
{¶17} Under Ohio law, a prima facie case of age discrimination may be proved
either directly or indirectly. An employee “may establish a prima facie case of age
discrimination directly by presenting evidence, of any nature, to show that an employer
more likely than not was motivated by discriminatory intent.” Hoyt v. Nationwide Mut.
Stark County, Case No. 2012 CA 00165 6
Ins. Co., Franklin App. No. 04AP–941, 2005–Ohio–6367, 2005 WL 3220192, ¶ 58,
quoting Mauzy v. Kelly Servs., Inc. (1996), 75 Ohio St.3d 578, 664 N.E.2d 1272,
paragraph one of the syllabus. Without direct proof of discrimination, an employee may
establish a prima facie claim of age discrimination indirectly by demonstrating 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 v. Bank One Trust Co., N.A.,
101 Ohio St.3d 175, 2004–Ohio–723, 803 N.E.2d 781, ¶ 20.
{¶18} In the case sub judice, appellant focuses on the fourth criterion of Coryell,
supra, urging that a genuine issue of material fact exists as to whether he was
“replaced” by Nathan Clements, appellee’s comptroller, who was thirty-three years old
in 2009.1 Appellant concedes that neither Clements nor anyone else was given the title
of general manager after appellant was terminated.
{¶19} In discovery, appellant received from Appellee Ziegler Tire a document
listing appellant’s former job duties and who replaced him in each duty. This document
indicates that Clements took over some or all of five job duties, set forth as: (1)
Responsibility for direct supervision of staff; (2) Review and preparation of annual
budgets; (3) Preparation of monthly salespersons’ commission for payroll; (4) Visiting
stores; and (5) Evaluating store managers. Appellant concedes that appellee listed a
total of seventeen job duties in the general manager position, but he urges that
1
Appellant suggests that the depositions of employees Edward Ramey and Thomas
West would have supported his “replacement” argument in the trial court. However,
these depositions were scheduled for late August 2012, but were never accomplished
due to the August 14, 2012 granting of summary judgment. We will reach aspects of this
issue in the Third Assignment of Error.
Stark County, Case No. 2012 CA 00165 7
Clements was given appellant’s “most important and primary job duties.” Appellant’s
Brief at 10, 12.
{¶20} This Court has recognized that assumption of duties does not constitute
replacement. See Yannarell v. GBS Corp., Stark App.No. 2009CA00025, 2009–Ohio–
5254, ¶ 31, citing Valentine v. Westshore Primary Care Assoc., Cuyahoga App. No.
89999, 2008–Ohio–4450, ¶ 86 (additional citation omitted). Furthermore, “[a] person is
not replaced when another employee is assigned to perform the plaintiff's duties in
addition to other duties * * *. A person is replaced only when another employee is hired
or reassigned to perform the plaintiff's duties.” Id. (additional citations and internal
quotations omitted).
{¶21} Upon review of the record, and in light of the aforesaid evidence, we
conclude appellant has failed to demonstrate a genuine issue of material fact as to a
prima facie case of age discrimination, as reasonable minds could only conclude that
Clements, the comptroller, was assigned some additional management duties and that
appellant was not replaced for purposes of an age discrimination claim.
{¶22} Furthermore, we recognize that under Ohio law, if a plaintiff establishes a
prima facie case of age discrimination, the burden shifts to the employer to provide
some legitimate, nondiscriminatory reason for the action taken. Hoyt v. Nationwide Mut.
Ins. Co., supra, ¶ 59, citing Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 503,
575 N.E.2d 439. If the employer establishes a nondiscriminatory reason for termination,
the employee then bears the burden of showing that the employer's proffered reason
was a pretext for impermissible discrimination. Owens v. Boulevard Motel Corp. (Nov. 5,
1998), Franklin App. No. 97APE12–1728, 1998 WL 886502; Cruz v. S. Dayton
Stark County, Case No. 2012 CA 00165 8
Urological Assoc., Inc. (1997), 121 Ohio App.3d 655, 659, 700 N.E.2d 675. Appellee
documented that it let forty-three employees go in 2008 and 2009 as part of a “reduction
in force” plan during the national economic downturn occurring at that time. More than
half those let go were under the age of forty. As a result of the reduction in force, the
duties that appellant had performed were redistributed among six or seven different
employees of appellee, including Clements. Thus, in the case sub judice, even if we
were to determine that appellant had at least established a prima facie case of age
discrimination, under the Coryell standard, on the basis that appellant’s discharge had
“permitted the retention” of Clements, we would conclude for summary judgment
purposes that appellee’s decision to terminate appellant under its reduction in force plan
was valid and nonpretextual.
{¶23} Appellant's First Assignment of Error is overruled.
II.
{¶24} In his Second Assignment of Error, appellant contends the trial court erred
in granting summary judgment in favor of appellee on his claim that appellee breached
an employment contract with him. We disagree.
{¶25} Generally, under Ohio law, at-will employment relationships may be
terminated by either party at any time for any reason not contrary to law. Escott v.
Timken Co., 153 Ohio App.3d 529, 795 N.E.2d 64, 2003-Ohio-3370, ¶ 12, citing Bucher
v. Sibcy Cline, Inc. (2000), 137 Ohio App.3d 230, 235, 738 N.E.2d 435. There is a
strong presumption of at-will employment under Ohio law. See Mers v. Dispatch Printing
Co. (1985), 19 Ohio St.3d 100, 102-103. However, there is a well-established exception
to the at-will doctrine based on contract theory; in other words, an employee may be
Stark County, Case No. 2012 CA 00165 9
able to establish that there exists either an express or an implied contract to overcome
the presumption of an at-will relationship. See Reasoner v. Bill Woeste Chevrolet, Inc.
(1985), 134 Ohio App.3d 196, 200, 730 N.E.2d 992.
{¶26} Appellant’s contract-based claim is essentially based on two components.
The first is a June 5, 2001 letter from William Ziegler setting forth specifics for the job
such as salary, bonuses, and an annual base salary increase. The second is a
memorandum written by appellant to William Ziegler in 2005. The memorandum
proposed a $5,000.00 increase in appellant’s base pay every three years instead of
every year, with three specific dates when these increases would initially go into effect:
July 1, 2007, July 1, 2010, and July 1, 2013. Appellant also proposed that upon
retirement, appellee would continue to cover appellant’s and his wife's medical benefits
until they died. However, appellant admitted in his deposition that these documents
provided no guarantee of a specific period of duration of employment. Davidson
Deposition at 71. Furthermore, upon his hire, appellant executed a receipt for the
company handbook and received same. The receipt document contains the following
language:
{¶27} “I understand Ziegler Companies reserves the right to make changes in
the guidelines or their application as it deems appropriate, and these changes may be
made with or without notice. I also understand that employment is terminable at the will
of the employee or the company at any time, and that no representative of the company
other than the President has any authority to make any contrary agreement.” (Emphasis
added).
Stark County, Case No. 2012 CA 00165 10
{¶28} In addition, the employee handbook itself states that nothing described
therein “should be construed as a contractual obligation of the Ziegler Companies to its
employees or to any other persons.”
{¶29} Appellant secondly relies on his recollection that William Ziegler “told me
that the last person out of the building to turn the lights out if they went broke would be
him, and the person before him would be me.” Davidson Deposition at 45. Appellant
maintains he had additional such conversations with Mr. Ziegler, and that Mr. Ziegler
once told appellant he would be the successor president. However, the Ohio Supreme
Court has recognized: “Standing alone, praise with respect to job performance and
discussion of future career development will not modify an employment-at-will
relationship. * * *. Helmick v. Cincinnati Word Processing Inc. (1989), 45 Ohio St.3d
131, 543 N.E.2d 1212, paragraph three of the syllabus. See, also, Weiper v. W.A. Hill &
Assoc. (1995), 104 Ohio App.3d 250, 258, 661 N.E.2d 796 (indicating that while such
praise might be interpreted as a “personal but objectively unfounded sense of job
security,” it does not alter the nature of at-will employment).
{¶30} Upon review, we find appellant has failed to establish a genuine issue of
material fact regarding the existence of a valid express or implied contract of
employment with appellee.
{¶31} Appellant's Second Assignment of Error is overruled.
III.
{¶32} In his Third Assignment of Error, appellant challenges the trial court's
handling of discovery and scheduling issues prior to the granting of summary judgment.
Stark County, Case No. 2012 CA 00165 11
{¶33} We have generally recognized that a trial court has the inherent authority
to manage its own proceedings and control its own docket. Love Properties, Inc. v.
Kyles, Stark App.No. 2006CA00101, 2007-Ohio-1966, ¶ 37, citing State ex rel. Nat. City
Bank v. Maloney, Mahoning App.No. 03 MA 139, 2003-Ohio-7010, ¶ 5. A decision
regarding the disposition of discovery issues is reviewed under an abuse of discretion
standard. Contini v. Ohio State Bd. of Edn., Licking App. No.2007CA0136, 2008-Ohio-
5710, ¶ 46 citing State ex rel. The V Companies v. Marshall (1998), 81 Ohio St.3d 467,
469, 692 N.E.2d 198.
{¶34} In regard to appellant’s claim that he was prevented from deposing two
Ziegler Tire employees, we note that in Maschari v. Tone, 103 Ohio St.3d 411, 2004-
Ohio-5342, 816 N.E.2d 579, the Ohio Supreme Court determined that a party’s failure to
move the trial court, pursuant to Civ.R. 56(F), to delay consideration of a summary
judgment motion precludes that party from complaining on appeal of its inability to
conduct planned depositions. Id. at ¶ 20. Secondly, in regard to appellant’s claim that he
was not given enough time to respond to the supplemental motion for summary
judgment, the trial court specifically stated that its decision was based upon the motion
for summary judgment filed April 3, 2012 and upon plaintiff’s [appellant’s] opposition
filed May 2, 2012. As it appears the trial court did not rely upon or consider the
supplemental motion, we find appellant’s asserted error to be harmless.
{¶35} Accordingly, upon review, we are unable to conclude the trial court abused
its discretion in managing the discovery and scheduling of this case.
Stark County, Case No. 2012 CA 00165 12
{¶36} Appellant's Third Assignment of Error is overruled.
{¶37} For the reasons stated in the foregoing opinion, the decision of the Court
of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
___________________________________
___________________________________
___________________________________
JUDGES
JWW/d 0604
Stark County, Case No. 2012 CA 00165 13
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ROBERT J. DAVIDSON :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
ZIEGLER TIRE AND SUPPLY CO. :
:
Defendant-Appellee : Case No. 2012 CA 00165
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs assessed to appellant.
___________________________________
___________________________________
___________________________________
JUDGES