Janezic v. Eaton Corp.

[Cite as Janezic v. Eaton Corp., 2013-Ohio-5436.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 99897

JOHN S. JANEZIC
PLAINTIFF-APPELLANT

vs.

EATON CORPORATION
DEFENDANT-APPELLEE

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-759786

BEFORE: Kilbane, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: December 12, 2013
ATTORNEYS FOR APPELLANT

Melisa M. Mazanec-Fisco
Chastity L. Christy
Caryn M. Groedel
Caryn Groedel & Associates
31340 Solon Road
Suite 27
Solon, Ohio 44139

ATTORNEYS FOR APPELLEE

Gregory C. Scheiderer
David A. Campbell
2100 One Cleveland Center
1375 East Ninth Street
Cleveland, Ohio 44114
MARY EILEEN KILBANE, J.:

{¶1} Plaintiff-appellant, John Janezic (“Janezic”), appeals the trial court’s

decision granting summary judgment in favor of defendant-appellee, Eaton Corporation

(“Eaton”). For the reasons set forth below, we affirm.

{¶2} In July 2011, Janezic filed a complaint against Eaton, alleging the following

four causes of action: (1) age discrimination; (2) reverse race discrimination; (3)

violation of R.C. 4113.52 (Ohio’s Whistleblower Statute); and (4) wrongful discharge in

violation of public policy. 1 Janezic was employed by Eaton in 2007, after Eaton

purchased Janezic’s former employer, Argo-Tech Corporation. Janezic was employed as

a Lead Engineer until his discharge in February 2009.

{¶3} He reported to supervisor Jeff Halter (“Halter”) for five to ten years prior to

his discharge. Janezic worked at an Eaton facility that designs and manufactures pumps

and other aircraft components. After each pump is manufactured, it undergoes testing to

ensure it meets the customers’ requirements. Janezic only worked with the products that

were already identified as potentially nonconforming. Janezic would evaluate those

products and determine whether they were acceptable as is, unusable, or should be

1Janezic filed a previous complaint in August 2009, but voluntarily dismissed
the matter without prejudice in March 2011.
reworked or repaired. He would complete the nonconformance report that had been

generated for each product he reviewed and record his assessment of the product on the

report.

{¶4} In April 2008, Janezic was called to a meeting in human resources after a

coworker complained about a comment made by Janezic. Janezic and the complaining

employee were in the same room when an African-American female employee walked by

them. Janezic said that this female employee had an “Obama-style” haircut and “the

haircut looks bad” on her. Janezic claimed that the comment was not “charged,” and he

only meant that the haircut did not look good on the female employee.

{¶5} In December 2008, Halter gave Janezic his yearly performance evaluation.

The evaluation was divided into sections that were rated on a scale of 1 to 5, with 5 being

the highest and 1 being the lowest. In the “Competencies” section, Janezic received a 3

for “drives for results” and “makes decisions/solves problems” categories. He received a

1 in the “Collaborative Style” section. In the “Manager’s Assessment” section, Halter

noted that

[Janezic] is driven to make sure that we ship good product from this facility.

***
 [Janezic] had a reported issue earlier this year (April 2008) regarding the
sensitivity of his comments to an hourly employee within the Assembly
Area. [Janezic] needs to be very careful in what he says and how it comes
across.

[Janezic] has been very harsh (degrading) with his words to Quality
personnel during the year, [Janezic] needs to maintain a level of
professionalism with other team members. APEX calibration input had
substantiated this same behavior with Manufacturing.

{¶6} In February 2009, an argument arose between Janezic and his coworkers

regarding the cleaning of nonconforming pumps. He confronted his coworkers for

failing to follow his instructions in the cleaning of these pumps. He told his coworkers

that they “screwed up his experiment” and “f**k you guys * * * I’ll see you in

personnel.”

{¶7} Following this incident, Janezic had three meetings with management

regarding his behavior. Janezic admitted that his behavior was “out of line.” Eaton

discharged Janezic at the conclusion of the third meeting on February 19, 2009. He was

discharged for his inappropriate behavior and treatment of coworkers. Eaton did not hire

a replacement for Janezic’s position. Instead, his duties were assumed by four other

employees with similar roles.

{¶8} In count one of his complaint, Janezic, who was 54 years old at the time of

his discharge, alleges that Eaton replaced his position with a substantially younger
employee. In count two, he alleges that he was terminated, in part, because of his race.

Janezic is Caucasian and claims that Eaton did not terminate the employment of a

similarly-situated African-American coworker who engaged in the same conduct as

Janezic. In count three, he alleges that he engaged in activity protected by the

Whistleblower Statute when he notified his supervisors that Eaton employees were

violating FAA safety regulations and Eaton’s safety policies. He claims that he was

discharged in retaliation for his whistleblowing activities. In count four, Janezic alleges

Ohio’s public policy encourages employees to prevent defective products from being

released into the stream of commerce. He claims that Eaton’s discharge of his

employment jeopardizes the public policy of Ohio.

{¶9} In November 2012, Eaton filed a motion for summary judgment, arguing

that there is no genuine issue of material fact and Janezic’s claims fail as a matter of law.

Eaton argued that Janezic had no direct evidence of discrimination, his position was not

replaced, and Janezic cannot identify any similarly-situated Eaton employee who engaged

in the same conduct, but was not discharged. Janezic opposed, arguing that he

established all four of his claims. The trial court granted Eaton’s motion for summary

judgment, finding that Janezic failed to: (1) demonstrate a prima facie case for his age

and reverse race discrimination claims; (2) offer evidence that he followed the specific
procedures provided by the Whistleblower Statute; and (3) identify an independent source

to support his wrongful discharge in violation of public policy claim.

{¶10} It is from this order that Janezic appeals, raising the following three

assignments of error for review, which shall be discussed together where appropriate.

Assignment of Error One

The trial court erred and abused its discretion in denying [Janezic’s] motion
to compel discovery from [Eaton].

Assignment of Error Two

The trial court erred in granting summary judgment in favor of [Eaton] as to
Janezic’s age and reverse discrimination claims.

Assignment of Error Three

The trial court erred in granting summary judgment in favor of [Eaton] as to
Janezic’s whistleblower and public policy claims.

Motion to Compel

{¶11} In the first assignment of error, Janezic argues that the trial court abused its

discretion when it denied his motion to compel discovery from Eaton. “We review the

denial of a motion to compel discovery for an abuse of discretion. State ex rel. V Cos. v.

Marshall, 81 Ohio St.3d 467, 469, 1998-Ohio-329, 692 N.E.2d 198.” Nemcek v. N.E.

Ohio Regional Sewer Dist., 8th Dist. Cuyahoga No. 98431, 2012-Ohio-5516, ¶ 7. “The
term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that

the court’s attitude is unreasonable, arbitrary or unconscionable.’” (Citations omitted.)

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State

v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

{¶12} “‘Ohio has a liberal discovery policy which, subject to privilege, enables

opposing parties to obtain from each other all evidence that is material, relevant and

competent, notwithstanding its admissibility at trial.”’ Nemcek at ¶ 8, quoting Fletcher

v. Nationwide Mut. Ins. Co., 2d Dist. Darke No. 02CA1599, 2003-Ohio-3038, ¶ 14, citing

Civ.R. 26(B)(1). While discovery should be liberally allowed, a trial court is vested with

broad discretion in discovery matters. Roe v. Planned Parenthood S.W. Ohio Region,

122 Ohio St.3d 399, 2009-Ohio-2973, 912 N.E.2d 61, ¶ 82. Notwithstanding Ohio’s

liberal discovery provisions, a trial court is vested with the authority to limit pretrial

discovery in order to prevent an abuse of the discovery process. Arnold v. Am. Natl. Red

Cross, 93 Ohio App.3d 564, 575, 639 N.E.2d 484 (8th Dist.1994), citing Doe v. Univ. of

Cincinnati, 42 Ohio App.3d 227, 231, 538 N.E.2d 419 (10th Dist.1988).

{¶13} In his motion to compel, Janezic sought to compel Eaton to provide answers

and responses to his first set of discovery requests. His discovery requests sought

information regarding defective aircraft parts and safety issues raised by Janezic during
his last 14 months of employment, as well as Eaton’s disciplinary policies and actions

taken against Janezic’s coworkers related to workplace behavior and swearing at work.

Janezic claims that this information would have supported his testimony that substantially

younger coworkers engaged in similar behavior, but were not terminated.

{¶14} After reviewing the record, we cannot conclude that the trial court abused its

discretion. Eaton and Janezic were in steady communication regarding their discovery

responses from the time Janezic served his complaint and discovery requests in July 2011

to April 2012. On April 12, 2012, Eaton provided Janezic with supplemental discovery

responses and a letter stating that it considered “the enclosed production and

supplemental responses, in addition to the documents and responses produced on the

three prior occasions, to completely satisfy [Janezic’s] discovery requests.” Janezic then

filed his motion to compel on May 4, 2012, and Eaton opposed on May 18, 2012.

Janezic’s deposition was taken on June 8, 2012.

{¶15} Based on Janezic’s deposition, Eaton requested further briefing. On June

27, 2012, Eaton filed its supplemental opposition to Janezic’s motion to compel and filed

the entire transcript of Janezic’s deposition. On July 6, 2012, Janezic filed his

supplemental reply to Eaton’s motion. The trial court denied Janezic’s motion to compel
on August 1, 2012. Janezic filed a motion to reconsider, which the trial court denied.

The trial court found that Janezic

has presented no facts or case law to demonstrate that the court’s original
decision was flawed. * * * [Janezic’s] motion for reconsideration of this
honorable court’s judgment denying [his] motion to compel * * * is denied.

{¶16} Janezic’s deposition testimony demonstrated that he did not experience any

discriminatory comments during his employment with Eaton and the two employees he

alleges as similarly-situated to him are, in fact, not. His testimony further demonstrated

that he did not engage in protected activity because Eaton withheld the pumps from

shipment that he identified as problematic. Civ.R. 26(B)(1) provides that, in general,

“[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to

the subject matter involved in the pending action[.]” Here, Janezic sought discovery that

has no relevance to his claims. As a result, the trial court did not abuse its discretion

when it denied his motion to compel.

{¶17} Accordingly, the first assignment of error is overruled.

Motion for Summary Judgment

{¶18} In the second and third assignments of error, Janezic argues the trial court

erred when it granted summary judgment on his age, reverse discrimination,

whistleblower, and public policy claims.
 {¶19} We review an appeal from summary judgment under a de novo standard of

review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671

N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706

N.E.2d 860 (8th Dist.1998). In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367,

369-370, 1998-Ohio-389, 696 N.E.2d 201, the Ohio Supreme Court set forth the

appropriate test 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,
1995-Ohio-286, 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,
1996-Ohio-107, 662 N.E.2d 264, 273-274.

{¶20} 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, 76 Ohio

St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of
the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359,

1992-Ohio-95, 604 N.E.2d 138.

Age and Reverse Race Discrimination Claims

{¶21} Janezic argues that he has established his age and reverse race

discrimination claims. The Ohio Supreme Court has held that to establish a prima facie

case of discrimination, the plaintiff must demonstrate that they: (1) were a member of a

statutorily-protected class; (2) suffered an adverse employment action (3) were qualified

for the position; and (4) were replaced by a person who is not a member of the protected

class or that similarly situated, non-protected employees were treated more favorably.

Barker v. Scovill, Inc., 6 Ohio St.3d 146, 451 N.E.2d 807 (1983).2 “Similarly situated”

employees are those who “‘must have dealt with the same supervisor, have been subject

to the same standards and have engaged in the same conduct without such differentiating

or mitigating circumstances that would distinguish their conduct or the employer’s

treatment of them for it.’” Valentine v. Westshore Primary Care Assoc., 8th Dist.

Cuyahoga No. 89999, 2008-Ohio-4450, ¶ 89, quoting Atkinson v. Akron Bd. of Edn., 9th

2“This test is a descendant of McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668, in which the United States Supreme Court promulgated an analytical
framework for claims of race discrimination.” Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d
175, 2004-Ohio-723, 803 N.E.2d 781, ¶ 9.
Dist. Summit No. 22805, 2006-Ohio-1032, ¶ 28, citing Mitchell v. Toledo Hosp., 964

F.2d 577 (6th Cir.1992).

{¶22} In the instant case, there is no dispute as to the first three elements: Janezic

was over age 40; Eaton terminated Janezic’s employment; and he was qualified for the

job. The parties dispute the final element of the test: whether Janezic was replaced by

a person not belonging to the protected class or that similarly situated, non-protected

employees were treated more favorably. We find that Janezic did not raise a genuine

issue of material fact as to this element.

{¶23} A review of the record reveals that Janezic was not replaced by any

employee. Rather, his duties were assumed by four engineers with similar roles. The

assumption of duties does not constitute replacement. Valentine at ¶ 86, citing Grosjean

v. First Energy Corp., 349 F.3d 332, 335-336 (6th Cir.2003).

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., quoting Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir.1990). See also

Valentine at ¶ 86.

{¶24} Therefore, Janezic is required to show that similarly situated, non-protected

employees were treated more favorably. Janezic alleges that Gregory Drew and Paul
Harty are two younger employees who engaged in conduct similar to that for which he

was terminated. However, Janezic testified that neither younger employee worked in his

department. Moreover, they held different positions and had different supervisors. The

record also demonstrates that no other employees in Janezic’s division with the same

supervisor engaged in the same behavior as Janezic.

{¶25} As we stated in Valentine,

[t]he law is clear that in order for this element to be successfully
established, the parties to be compared must be similarly-situated in all
respects; that is, they “must have dealt with the same supervisor, have been
subject to the same standards and have engaged in the same conduct
without such differentiating or mitigating circumstances that would
distinguish their conduct or the employer’s treatment of them for it.”
(Citations omitted.)

Id. at ¶ 89. Thus, based on the foregoing, we find that Janezic did not establish a genuine

issue of material fact as to the fourth element of his age discrimination claim.

{¶26} To set forth a prima facie case of reverse race discrimination, Janezic must

demonstrate: (1) background circumstances supporting the inference that Eaton was the

unusual employer who discriminated against non-minority employees; (2) he was

discharged (or that the employer took an action adverse to the plaintiff’s employment);

(3) he was qualified for the position; and (4) he was treated disparately from
similarly-situated minority employees. Courie v. ALCOA, 162 Ohio App.3d 133,

2005-Ohio-3483, 832 N.E.2d 1230, ¶ 20 (8th Dist.).

{¶27} In the instant case, Janezic has failed to demonstrate a prima facie case of

reverse race discrimination. During his deposition, Janezic admitted that he had no

race-related issues with his supervisors. He never experienced or heard of any

derogatory comments about him being Caucasian. Moreover, as discussed above,

Janezic failed to demonstrate that he was treated differently from similarly-situated

minority employees. For these reasons, the trial court properly granted summary

judgment on Janezic’s claim of reverse race discrimination.

Whistleblower and Public Policy Claims

{¶28} In the third assignment of error, Janezic argues the trial court erred when it

granted summary judgment on his whistleblower and wrongful discharge in violation of

public policy claims. He claims that as a result of his repeated refusal to authorize

shipment of defective aircraft parts and reporting Eaton’s violation of laws regarding the

manufacturing of aircraft parts, Eaton terminated his employment.

{¶29} The Whistleblower Statute, R.C. 4113.52, protects employees from

retaliation for notifying the proper authorities of illegal, dangerous conditions that the

employer allows to exist. R.C. 4113.52(A)(1)(a) provides:
If an employee becomes aware in the course of the employee’s employment

of a violation of any state or federal statute or any ordinance or regulation

of a political subdivision that the employee’s employer has authority to

correct, and the employee reasonably believes that the violation is a

criminal offense that is likely to cause an imminent risk of physical harm to

persons or a hazard to public health or safety, a felony, or an improper

solicitation for a contribution, the employee orally shall notify the

employee’s supervisor or other responsible officer of the employee’s

employer of the violation and subsequently shall file with that supervisor or

officer a written report that provides sufficient detail to identify and

describe the violation. If the employer does not correct the violation or

make a reasonable and good faith effort to correct the violation within

twenty-four hours after the oral notification or the receipt of the report,

whichever is earlier, the employee may file a written report that provides

sufficient detail to identify and describe the violation with the prosecuting

authority of the county or municipal corporation where the violation

occurred, with a peace officer * * *, or with any other appropriate public
 official or agency that has regulatory authority over the employer and the

industry, trade, or business in which the employer is engaged.

{¶30} In Contreras v. Ferro Corp., 73 Ohio St.3d 244, 248, 652 N.E.2d 940

(1995), the Ohio Supreme Court examined the Whistleblower Statute and stated that

R.C. 4113.52(A)(1) protects an employee for reporting certain information

to outside authorities only if the following requirements have first been

satisfied: (1) the employee provided the required oral notification to the

employee’s supervisor or other responsible officer of the employer, (2) the

employee filed a written report with the supervisor or other responsible

officer, and (3) the employer failed to correct the violation or to make a

reasonable and good faith effort to correct the violation.

{¶31} The court held that

[i]n order for an employee to be afforded protection as a “whistleblower,”
such employee must strictly comply with the dictates of R.C. 4113.52.
Failure to do so prevents the employee from claiming the protections
embodied in the statute.

Contreras at the syllabus; see also Smith v. Children’s Aid Soc., 8th Dist. Cuyahoga No.

86644, 2006-Ohio-4754.

{¶32} Here, Janezic alleges that an email in which he requested to meet with

Halter for 30 minutes to discuss acceptable practices on the production floor fulfills the
“written notice requirement.” In response to this email, Janezic met with Halter and the

Head of Quality to discuss his concerns. They told Janezic that they would look into

what he presented. Afterwards, Janezic made no further complaints. However,

Janezic’s email does not identify and describe a violation as required by the statute.

Furthermore, there is no evidence in the record that he made any further complaints after

his meeting to anyone at Eaton or an outside authority such as the FAA. Because

Janezic failed to “strictly comply” with the requirements of the statute, he is not entitled

to the protections afforded by the Whistleblower Statute. Therefore, the trial court

properly granted Eaton’s motion for summary judgment on this claim.

{¶33} In order to support Janezic’s wrongful discharge in violation of the public

policy claim, Janezic must demonstrate: (1) the existence of a clear public policy

sufficient to justify an exception to the employment-at-will doctrine that is manifested in

a state or federal constitution, statute, administrative regulation, or common law (the

“clarity” element); (2) that the dismissal of employees under circumstances like those

involved in his dismissal would jeopardize the public policy (the “jeopardy” element); (3)

that his dismissal was motivated by conduct related to the public policy (the “causation”

element); and (4) Eaton lacked overriding legitimate business justification for the
dismissal (the “overriding justification” element). Collins v. Rizkana, 73 Ohio St.3d 65,

69-70, 1995-Ohio-135, 652 N.E.2d 653.

{¶34} Janezic argues that he can bring his wrongful discharge in violation of

public policy claim based on our decision in Zajc v. Hycomp, 172 Ohio App.3d 117,

2007-Ohio-2637, 873 N.E.2d 337 (8th Dist.). He claims that “when an employee is

terminated for refusing to ship defective aircraft parts, that employee may maintain a

claim for wrongful discharge in violation of public policy.”

{¶35} In Zajc, the plaintiff (“Zajc”) brought a wrongful discharge action against

his former employer, Hycomp. Zajc began working for Hycomp as a manufacturing

engineer. In his final capacity, he had the ultimate authority to determine whether parts

met customer requirements, although a source inspector could override that

determination. After Zajc determined that a particular part was not satisfactory, his

supervisors confronted him and demanded that the part be sent to the customer. When

he refused to do so, he was terminated from employment, and he filed suit against

Hycomp. The trial court granted summary judgment to Hycomp, finding that

the UCC and the Ohio Products Liability Act did not set forth a basis for
meeting the clarity element of the claim for relief. [The court] further held
that the jeopardy element of the claim for relief was not met because “if a
product injures someone, then he or she may bring a lawsuit to address the
injury,” and if GE deemed the products nonconforming under the UCC,
 then GE can “follow the steps in the UCC and return the goods to
Hycomp.”

Id. at ¶ 14.

{¶36} On appeal, we disagreed with the summary judgment ruling, finding that

Zajc

established the existence of a clear public policy sufficient to justify an
exception to the employment-at-will doctrine. The UCC provisions permit
a buyer to reject products which are nonconforming, the Products Liability
Statute imposes strict liability where the risks exceed the benefits of a
design, R.C. 2307.75, R.C. 2307.76; cf. Bowling v. Heil (1987), 31 Ohio
St.3d 277, 31 Ohio B. 559, 511 N.E.2d 373, and perhaps most significantly,
Chapter 447 of 49 U.S.C. authorizes the FAA to regulate the production of
aircraft, perform inspections and sets forth standards. Chapter 221 of 14
C.F.R. provides that a production inspection system must be in place to
determine, inter alia, that subcontracted parts must be as specified in the
design data, that parts are be inspected, and that inspection records are
maintained. Moreover, Hycomp admits that quality policy and procedures
must be “audited yearly in accordance with the requirements recognized in
the aerospace industry.”

Id. at ¶ 25. Janezic argues that his employment, discharge, and public policy claims are

almost identical to Zajc. We disagree.

{¶37} Our decision in Zajc is distinguishable from the instant case. Zajc was

discharged for refusing to ship a defective aircraft part after his supervisors ordered him

to do so. Here, Janezic testified that Eaton followed his instructions and did not ship the

defective product in question. Furthermore, Janezic did not complain to the FAA or to
any other outside authority about the safety concerns with Eaton’s products. Therefore,

the trial court properly granted Eaton’s motion for summary judgment on this claim.

{¶38} Accordingly, the first, second, and third assignments of error are overruled.

{¶39} Judgment is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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.

MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR