[Cite as Fayak v. Univ. Hosps., 2020-Ohio-5512.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
AMANDA FAYAK, :
Plaintiff-Appellant, : No. 109279
v. :
UNIVERSITY HOSPITALS, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 3, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-898337
Appearances:
Stephen W. Gard and David Glenn Phillips, for appellant.
Lewis, Brisbois, Bisgaard & Smith, L.L.P., David A.
Campbell and Donald G. Slezak, for appellees.
SEAN C. GALLAGHER, J.:
Plaintiff-appellant Amanda Fayak (“Fayak”) appeals the trial court’s
decision that granted summary judgment in favor of defendants-appellees
University Hospitals, et al.1 (hereinafter “the defendants”). Upon review, we affirm.
Background
Fayak is a former employee of University Hospitals Police
Department. She was employed from December 2013 until her discharge in June
2016 after an extended leave of absence. The employment application completed by
Fayak includes a provision that reads: “I agree that any claim or lawsuits relating to
my service with University Hospitals or any of its subsidiaries or affiliates must be
filed no more than six (6) months after the date of the employment action that is the
subject of the claim or lawsuit. I waive any statute of limitations to the contrary.”
The employment application was submitted with her typewritten name, which
represented her electronic signature according to the application.
Fayak alleges that from December 2013 through November 2014 and
from March to April 2015 she was subjected to gender discrimination, disparate
treatment, sexual harassment, a hostile work environment, and retaliation and that
this conduct affected her ability to perform her job. Fayak also alleges that she
suffered from stress and anxiety and had panic attacks. She took a medical leave of
1 University Hospitals is misnamed in the complaint and is known as
University Hospitals Health System, Inc. The other defendants-appellants in the
action are Ronald Dziedzicki, Allison Kennedy, Vareie Jaggie, Lt. Philip Rinehardt,
Ante Cacic, Abur-Rahim Nabeeh, Robert Hersey, and Matt Suster.
absence from December 11, 2014, to March 9, 2015, during which time she was
hospitalized or otherwise under the care and treatment of University Hospitals. She
claims that during this time, her private medical information was disclosed to
members of the University Hospitals Police Department without her consent.
Shortly after her return to work, Fayak took a lengthy leave of absence
beginning on April 23, 2015, until her eventual discharge in June 2016. Fayak does
not allege any discriminatory, harassing, or retaliatory conduct occurred after
April 23, 2015. Fayak submitted a form signed by her physician certifying her
inability to work and indicating she would be unable to work for University
Hospitals until July 1, 2015. Despite requests from University Hospitals, Fayak
provided no further documentation to support her continued leave of absence.
University Hospitals terminated her employment via letter on June 28, 2016, for the
stated reason that Fayak was “on an unauthorized/unapproved leave since July 2,
2015” and had “not provided any further information * * * to support a continued
leave of absence.”
Following her discharge, Fayak filed an initial complaint on
September 19, 2016, but subsequently the case was voluntarily dismissed without
prejudice. See Cuyahoga C.P. No. CV-16-869216 (voluntarily dismissed May 31,
2017). On February 2, 2017, Fayak refiled this action against University Hospitals,
two employees of University Hospitals, and several individual members of the
University Hospitals Police Department. The individuals named as defendants in
the refiled action had not been named as defendants in the previous complaint. The
refiled complaint raises claims for “gender discrimination, disparate treatment &
hostile work environment” in violation of R.C. Chapter 4112, “gender
discrimination, sexual harassment & hostile work environment” in violation of R.C.
Chapter 4112, “retaliation & hostile environment based on retaliation” in violation
of R.C. Chapter 4112, invasion of privacy, and intentional infliction of emotional
distress.
The defendants filed a Civ.R. 12(B)(6) motion to dismiss that was
denied by the trial court. Following further proceedings, the defendants filed a
motion for summary judgment. Among other arguments, the defendants argued
that Fayak’s claims raised in the refiled complaint are barred by the six-month
limitations period in her employment application and that the latest possible date
she could allege any wrongdoing based upon her employment was her discharge
date of June 28, 2016. The defendants further argued that Fayak failed to comply
with University Hospitals’ leave policies, that she was terminated for failing to
provide University Hospitals with requested leave documents and extending her
leave beyond University Hospitals’ maximum leave policy, and that Fayak’s claims
were otherwise unsupported by the record or failed as a matter of law.
Fayak filed a brief in opposition in which she described the conduct
underlying her claims. She argued that her claims were not barred by the applicable
limitations period, that her initial complaint had been filed less than six months
after her termination, and that her refiled complaint was filed within the one-year
savings statute. She proceeded to argue the merits of her claims. She did not
challenge the legitimacy of her discharge.
In their reply brief, the defendants claimed that Fayak did not argue
that her termination from employment was unlawful and that no unlawful conduct
was alleged to have occurred later than April 23, 2015. Therefore, the defendants
raised the argument that the original complaint was filed beyond the six-month
limitations period contained in Fayak’s employment application. The defendants
further argued against each of Fayak’s claims. Additionally, the defendants filed a
motion to strike portions of Fayak’s affidavit that was filed in support of her brief in
opposition.
Fayak filed a motion for leave to file a response to the defendants’
reply brief, stating in part that the defendants had asserted a new argument in their
reply that was not set forth in the dispositive motion. The trial court granted this
motion.
On November 7, 2019, the trial court granted the defendants’ motion
for summary judgment. The trial court observed that “Fayak does not dispute the
validity of the limitations period, only the Defendants’ contention that her claims
are untimely under [the contractual] provision.” The trial court proceeded to find
that Fayak’s claims were barred by the six-month contractual limitations period in
her employment application. The trial court recognized that the defendants had first
raised the issue that the original complaint that was filed was untimely in their reply
brief, but found the issue was properly before the court because it had permitted
Fayak to file a surreply brief. The trial court proceeded to find as follows:
All the events that constitute [Fayak’s] claims occurred prior to her
last date of active employment on April 23, 2015, when she began her
medical leave. Therefore, there is no genuine dispute of material fact
that the original complaint filed on September 19, 2016 was well
outside the original six-month limitation period.
* * * Although Fayak has presented evidence that her working
environment caused her stress-related medical leave, she has not
presented evidence that any of the events that occurred prior to
April 23, 2015 was the ultimate cause of her termination.
The Defendants have provided evidence that the cause of
Fayak’s termination was because she failed to provide documentation
to support her continued leave, and that in fact, her leave was
unauthorized as of July 1, 2015. Fayak has not presented any evidence
to demonstrate that this termination occurred for any other reason.
***
Because there are no facts causally connecting Fayak’s
termination to any of the actions that constituted the hostile work
environment or intentional infliction of emotion distress, there is no
genuine dispute of material fact that the events giving rise to Fayak’s
claims all arose prior to April 23, 2015. Therefore, she would need to
have filed her original suit within six months of that date at the latest
to remain within the contractual limitations period. Although neither
party specifically states the date of the invasion of privacy claim, it is
clear from the evidence that this event occurred before her medical
leave began in April 2015, and therefore is barred under the
limitations period.
Having found the contractual limitations period barred the action, the
trial court did not address the merits of any of the claims. The trial court also
deemed moot the motion to strike that had been filed by the defendants. Fayak
timely filed this appeal.
Law and Analysis
Appellate review of summary judgment is de novo, governed by the
standards set forth in Civ.R. 56. Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-
8374, 75 N.E.3d 161, ¶ 14. Summary judgment is appropriate only when “[1] no
genuine issue of material fact remains to be litigated, [2] the moving party is entitled
to judgment as a matter of law, and [3] viewing the evidence in the light most
favorable to the nonmoving party, reasonable minds can reach a conclusion only in
favor of the moving party.” Id., citing M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65,
2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12. Once the moving party has satisfied its
initial burden of identifying specific facts in the record that demonstrate an
entitlement to summary judgment under Civ.R. 56, the nonmoving party has a
reciprocal burden to set forth specific facts showing there is a genuine issue for trial.
Crenshaw v. Cleveland Law Dept., 8th Dist. Cuyahoga No. 108519, 2020-Ohio-921,
¶ 33, citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d
264.
Fayak raises three assignments of error for our review. We begin with
the first and second assignments of error. Under her first assignment of error, Fayak
claims the trial court erred by failing to hold invalid the six-month limitations period
in her employment application. Under her second assignment of error, she argues
that the reasonableness of this provision is a matter for the jury to resolve.
The defendants assert that Fayak did not challenge the validity,
application, or reasonableness of the six-month limitations period at the trial court
level and has waived those arguments on appeal. “A first principle of appellate
jurisdiction is that a party ordinarily may not present an argument on appeal that it
failed to raise below.” State v. Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156,
145 N.E.3d 278, ¶ 10, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 1997-Ohio-
401, 679 N.E.2d 1099; see also Davis v. Cleveland, 8th Dist. Cuyahoga No. 99187,
2013-Ohio-2914, ¶ 15. Although motions for summary judgment are reviewed de
novo, the parties are not given a second chance to raise arguments that should have
been raised below. Gardi v. Bd. of Edn., 8th Dist. Cuyahoga No. 99414, 2013-Ohio-
3436, ¶ 27, citing Hamper v. Suburban Umpires Assn., 8th Dist. Cuyahoga No.
92505, 2009-Ohio-5376, ¶ 27; see also S.A.S. v. Wellington School, 10th Dist.
Franklin No. 19AP-305, 2020-Ohio-4478, ¶ 39.
Arguably, Fayak has waived the challenges presented. However, we
recognize that Fayak did argue in the trial court that her claims were not barred by
the applicable limitations period. Also, the trial court ultimately found the
limitations period in her employment application barred her claims. Therefore, we
shall afford some leeway and consider whether the six-month limitations period in
the employment application is enforceable against her claims.
Fayak argues that defendants first raised the argument that her
original complaint was not timely filed in their reply brief and that they should not
be permitted to obtain summary judgment by ambush. Although Fayak contends
that she filed a motion to strike the new argument on September 6, 2019, the docket
reflects that she filed a “motion for leave to file a response to defendants’ reply to
their dispositive motion.” In that motion, she requested that the new argument be
stricken from the reply. Rather than striking the new argument, the trial court
exercised its discretion and granted her motion for leave to file a response. The trial
court addressed this in its opinion and found no prejudice occurred because the trial
court granted Fayak’s motion for leave to file a response to the arguments raised in
the reply brief. While it is generally improper to raise a new issue in a reply brief, as
Ohio courts have held: “[W]hen a new argument is raised in a reply, the proper
procedure is to strike the reply or, alternatively, to allow the opposing party to file a
surreply.” Deutsche Bank Natl. Trust Co. v. Ayers, 11th Dist. Portage No. 2019-P-
0094, 2020-Ohio-1332, ¶ 49, citing Hicks v. Cadle Co., 2016-Ohio-4728, 66 N.E.3d
1255, ¶ 18 (11th Dist.), quoting Baker v. Coast to Coast Manpower, L.L.C., 3d Dist.
Hancock No. 5-11-36, 2012-Ohio-2840, ¶ 35. Therefore, the trial court followed the
correct procedure, all parties had the opportunity to address the issue, and the trial
court was permitted to consider the argument.
On appeal, Fayak challenges the validity of the shortened limitations
period as applied to actions brought pursuant R.C. Chapter 4112. In this case,
Fayak’s application for employment contains a clause under which she agreed that
any claim or lawsuits relating to her service with University Hospitals was required
to be filed “no more than six (6) months after the date of the employment action that
is the subject of the claim or lawsuit.” Fayak argues that this provision is void and
unenforceable. We do not agree.
Under Ohio law, it has been held that “[g]enerally, in the absence of a
controlling statute to the contrary, a provision in a contract may validly limit, as
between the parties, the time for bringing an action on such contract to a period
less than that prescribed in a general statute of limitations provided that the
shorter period shall be a reasonable one.” (Emphasis sic.) Kraly v. Vannewkirk,
69 Ohio St.3d 627, 632, 635 N.E.2d 323 (1994), quoting Order of United
Commercial Travelers v. Wolfe, 331 U.S. 586, 608, 67 S.Ct. 1355, 91 L.Ed. 1687
(1947); see also Globe Am. Cas. Co. v. Goodman, 41 Ohio App.2d 231 and 237, 325
N.E.2d 257 (8th Dist.1974). Further, a shortened limitations period contained in an
application for employment can bar claims that are untimely filed. Fry v. FCA US
L.L.C., 2017-Ohio-7005, 143 N.E.3d 1108 (6th Dist.), appeal not allowed, 2018-
Ohio-723, 92 N.E.3d 880 (claims for disability discrimination, wrongful
termination, failure to provide a reasonable accommodation, and intentional
infliction of emotional distress were barred by 180-day limitation period in
employment application). As the defendants argue, courts have held that a six-
month contractual limitations period is enforceable for employment-related claims
and is not inherently unreasonable. See Maxwell v. Univ. Hosps. Health Sys., Inc.,
Cuyahoga C.P. No. CV-15-840036 (Apr. 28, 2017); Terry v. Cent. Transport, Inc.,
N.D. Ohio No. 1:09 CV 2432, 2011 U.S. Dist. LEXIS 83454, 18 (July 29, 2011);
Hoskins v. DaimlerChrysler Corp., N.D. Ohio No. 3:03cv338, 2005 U.S. Dist.
LEXIS 45418, 13-14 (Mar. 30, 2005); Thurman v. DaimlerChrysler Corp., 397 F.3d
352, 357 (6th Cir.2004) (finding a 180-day contractual period of limitations set forth
in a job application was reasonable and barred state law discrimination claims as
well as federal race discrimination claims brought under Section 1981).
Fayak’s argument against the enforcement of the shortened
limitations period relies on federal case law governing claims under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq. In Logan v. MGM Grand Detroit
Casino, 939 F.3d 824 (6th Cir.2019), the Sixth Circuit held that “contractual clauses
that purport to shorten the limitation period of Title VII to bring suit are not
enforceable.” Id. at 833. Fayak argues that Chapter 4112 of the Ohio Revised Code
is intended to operate in tandem with Title VII and that Logan should be applied to
claims brought pursuant to Title VII as well as R.C. Chapter 4112. In Logan, the
Sixth Circuit recognized that Title VII “creates a uniform, nationwide system” for
resolving claims of employment discrimination and that adopting state-law contract
principles would result in similarly situated plaintiffs in different states having
different rights in the enforcement of “wholly federal claims in federal courts.” Id.
at 832-833. Logan was limited to Title VII claims and has not been applied to state-
law claims. See Harwood v. N. Am. Bancard L.L.C., E.D.Mich. No. 18-cv-12567,
2020 U.S. Dist. LEXIS 75516, 34-35 (Apr. 29, 2020) (applying Logan to Title VII
claims, but enforcing shortened limitations period against claims under Michigan’s
Elliot-Larsen Civil Rights Act).
Nonetheless, Fayak argues that the Supreme Court of Ohio has
recognized that the law governing Title VII lawsuits is generally applicable to
lawsuits involving alleged violations of R.C. Chapter 4112. See Hampel v. Food
Ingredients Specialties, 89 Ohio St.3d 169, 175, 2000-Ohio-128, 729 N.E.2d 726);
Little Forest Med. Ctr. v. OCRC, 61 Ohio St.3d 607, 609-610, 575 N.E.2d 1164
(1992). However, in Logan, the court distinguished application of a contractual
limitations period when a general statute of limitations is involved, such as under
42 U.S.C. Section 1983, from the limitations periods of Title VII “that requires
application of those statutorily prescribed limitations periods rather than allowing
contractual limitations periods.” Id. at 834. As stated in Logan, “[i]n situations
where only a general limitation period applied, such as ERISA and § 1981, we have
allowed the limitation period to be contractually altered.” Id. at 831. Therefore,
Logan has no application to Fayak’s claims under Ohio law.
Ohio courts have applied shortened contractual limitations periods to
employment discrimination claims. See Fry at ¶ 12 and 27; Maxwell. Further,
courts in other jurisdictions have held that a six-month limitations period within an
employment application is not unreasonable or against public policy under state
law. See Evans v. Canal St. Brewing Co. L.L.C., E.D.Mich. No. 18-cv-12631, 2019
U.S. Dist. LEXIS 57857, 15 (Apr. 4, 2019) (Michigan law); Walker v. TA Operating
L.L.C., W.D.Ark. No. 4:14-cv-4055, 2016 U.S. Dist. LEXIS 49647 (Apr. 13, 2016)
(Arkansas law); Thurman, 397 F.3d at 357-359 (Michigan law); Soltani v. W. & S.
Life Ins. Co., 258 F.3d 1038, 1044-1045 (9th Cir.2001) (California law); Taylor v.
W. & S. Life Ins. Co., 966 F.2d 1188, 1206 (7th Cir.1992) (Illinois law); Morgan v.
Fed. Express Corp., 114 F.Supp.3d 434, 444 (S.D. Tex.2015) (Texas law); Vega v.
Fed. Express Corp., No. 09 CIV 07637, 2011 U.S. Dist. LEXIS 111531, (S.D.N.Y.
Sept. 29, 2011) (New York law); Badgett v. Fed. Express Corp., 378 F.Supp.2d 613,
623 (M.D.N.C.2005) (North Carolina law). Likewise, we find that the six-month
limitations period in Fayak’s employment application is reasonable and enforceable
under Ohio law.
Insofar as Fayak attempts to challenge whether she agreed to the
limitations provision in her employment application as well as the language of the
provision, she did not raise these or her related arguments in the trial court. Here,
we apply the “familiar principle of law that a party who does not raise an issue in the
trial court may not ordinarily raise that issue for the first time on appeal.”
Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, 145 N.E.3d 278, at ¶ 1.
However, we note that in Fry it was found that an application for employment
constituted an offer upon its presentation and that “[w]hen appellant executed the
application, his acceptance of the offer was complete, and the agreement was
formed.” Id. at ¶ 18. Fayak does not state in her affidavit that she did not read and
understand the employment application. Although she now claims on appeal that
she did not agree to be bound by the arbitration clause and asserts there is no
evidence as to who typed her name on the employment application, she never
disputed that she submitted the employment application, which in addition to her
typed name that “represent[s] your electronic signature” also provided her social
security number and driver’s license number. Arguably, she was responsible for
reviewing the application and consented to the terms by submitting the online
application with her electronic signature. However, these arguments were not
raised in the trial court.
Fayak’s first and second assignments of error are overruled.
Under her third assignment of error, Fayak argues that there are
genuine issues of material fact as to the date the limitations period began to run and
whether the grounds for her employment termination were pretextual.
Fayak argues that Ohio’s savings statute, R.C. 2305.19, should apply
to her claims because this is a refiled action. However, the individual defendants
were not parties to the 2016 lawsuit, and we agree with the trial court’s
determination that “there is no genuine dispute of material fact that the events
giving rise to Fayak’s claims all arose prior to April 23, 2015.” Therefore, the original
action was untimely.
While Fayak claims that there exist material issues of fact as to the
date the limitations period began to run and whether the grounds for her
termination were pretextual, these issues were not raised in the trial court. Our
review reflects that Fayak was on a 14-month leave of absence prior to her discharge
on June 28, 2016. No adverse conduct is alleged to have occurred during her leave
of absence. The defendants presented evidence to show that Fayak’s leave of
absence was unauthorized as of July 1, 2015 and that she was terminated because
she failed to provide documentation to support her continued leave of absence.
Fayak offered no evidence to demonstrate her termination was for any other reason.
In her brief in opposition to summary judgment, she conceded she was unable to
return to work at the expiration of her leave of absence. However, she provided no
medical documentation to support her unauthorized leave of absence to University
Hospitals. We agree with the trial court that there are no facts causally connecting
Fayak’s termination to any of her claims. We find no genuine issue of material fact
to exist.
We will not consider the remaining arguments that are being raised
for the first time on appeal. We overrule Fayak’s third assignment of error.
Finally, we are mindful that the trial court granted summary
judgment solely for the reason that Fayak’s claims were untimely filed under the
contractual limitations period. We certainly understand the gravity of the claims
that have been raised. However, under Ohio law, the shortened limitations period
is enforceable against Fayak’s claims. The trial court did not consider the merits of
the claims or other issues in ruling on the motion for summary judgment. Issues
raised in summary judgment motions that are not considered by the trial court
should not be determined by an appellate court in the first instance. Meekins v.
Oberlin, 8th Dist. Cuyahoga No. 106060, 2018-Ohio-1308, ¶ 24-26; Ocwen Loan
Servicing, L.L.C. v. McBenttes, 9th Dist. Summit No. 29343, 2019-Ohio-4884, ¶ 8;
Montville Lakes Cluster Homeowners Assn. Phase One v. Montville Lakes
Homeowners Assn., 9th Dist. Medina No. 16CA0082-M, 2017-Ohio-7920, ¶ 17.
“The better practice is to allow the trial court to analyze the evidence in the first
instance.” Browne v. Artex Oil Co., 158 Ohio St.3d 398, 2019-Ohio-4809, 144
N.E.3d 378, ¶ 18; see also Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360,
1992-Ohio-95, 604 N.E.2d 138. (“[T]he trial court’s function cannot be replaced by
an ‘independent’ review of an appellate court.”) Therefore, we decline to consider
any arguments that were not addressed by the trial court in the first instance.
Judgment affirmed.
It is ordered that appellees recover from appellant 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 Procedure.
__________________________________
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR