[Cite as Davis v. Time Warner Cable, 2017-Ohio-1191.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
ANTHONY DAVIS :
:
Plaintiff-Appellant : C.A. CASE NO. 27073
:
v. : T.C. NO. 15CV2948
:
TIME WARNER CABLE : (Civil Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
...........
OPINION
Rendered on the ___31st___ day of _____March_____, 2017.
...........
ANTHONY DAVIS, 502 E. Wenger Road, Englewood, Ohio 45322
Plaintiff-Appellant
VINCENT NORWILLO, Atty. Reg. No. 0047331, 1375 E. 9th Street, Suite 1600,
Cleveland, Ohio 44114
Attorney for Defendant-Appellee
.............
DONOVAN, J.
{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Anthony
Davis, filed April 7, 2016. Davis appeals from the March 9, 2016 Decision of the trial
court adopting the Magistrate’s decision on Time Warner Cable’s (“TWC”) Motion for
Summary Judgment. For the reasons that follow, and in the absence of a final
-2-
appealable order, the instant appeal will be dismissed.
{¶ 2} Davis filed a pro se Complaint against TWC on June 5, 2015, that provides
as follows:
I was discriminated against and wrongfully fired. I was wrongfully
fired for attendance. I was under a written contract with HR and security
witch [sic] explained that Angela Kemp was falsifying my records,
discriminating against me for being white and good at my job. HR fired me
for the falsified time records entered by Angela Kemp then fired Angela
Kemp for falsifying my time records.
{¶ 3} TWC answered the Complaint on July 8, 2015. On July 12, 2015, the trial
court issued an “Order of Referral to Magistrate.” On September 25, 2015, the matter
was referred to mediation. On October 20, 2015, Davis filed a request for a jury, which
the Magistrate overruled on October 23, 2015, noting that pursuant to Civ.R. 38(B), a jury
demand must be served “at any time after the commencement of the action and not later
than fourteen days after the service of the last pleading directed to such issue,” and that
failure to comply with the rule constitutes waiver. The Magistrate further noted that the
last pleading was TWC’s Answer, filed July 8, 2015. The Magistrate concluded that Davis’
request was untimely.
{¶ 4} After TWC filed a request for an extension of the summary judgment
deadline, Davis, on November 5, 2015, filed an “Objection to Motion for summary
decision,” a document entitled “Witness,” and nine pages entitled “Exhibits filed by:
Anthony Davis.” On November 12, 2015, mediation was terminated. On November 13,
2015, Davis filed a 28 page document captioned “Exhibits,” and a “Notice of delivery of
-3-
court documents.” On November 17, 2015, the trial court adopted the Magistrate’s
decision which denied the request for a jury, noting that no objections were filed and
concluding, “Plaintiff’s Motion for Jury demand is untimely and therefore DENIED.”
{¶ 5} TWC filed its motion for summary judgment on November 25, 2015. Therein
TWC listed Davis’ discipline history for attendance violations. TWC described its
investigation into Davis’ allegations of attendance records falsification. TWC asserted
as follows:
Mr. Davis’ Complaint fails as a matter of law. * * * Specifically, Plaintiff
fails to allege in his Complaint that he is a member of a protected class.
He fails to allege that he was qualified for the position. The overwhelming
evidence is that throughout his career he continually violated TWC’s
attendance policy. The allegation regarding falsification is not only
unsupported, but moreover completely controverted by the investigation of
Deidra Bartlett and the attached time card entries which unequivocally and
irrefutably found no falsification occurred. Plaintiff’s claim further fails
because he is unable to allege or produce any evidence that any individual
who engaged in a similar pattern of attendance infractions and kept their
job [sic]. Accordingly, Plaintiff’s prima facie case fails.
{¶ 6} TWC asserted that even if Davis could establish a prima facie case of
discrimination, TWC can articulate a legitimate, nondiscriminatory reason for Davis’
termination, namely his “numerous, continued and escalating attendance infractions,”
which constituted “legitimate, nondiscriminatory business reasons for its termination
decision.” Finally, TWC asserted that Davis cannot establish that its articulated reasons
-4-
are pretextual, since Davis’ “signature appears on each and every discipline document
up until his termination.” TWC attached its Employee Handbook, multiple documents
reflecting Davis’ attendance infractions, and the Affidavit of Deirdra Bartlett, a Human
Resources representative at TWC. TWC also filed a Motion for Judgment on the
Pleadings on November 25, 2015.
{¶ 7} On December 11, 2015, Davis filed a multi-page document captioned
“Exhibits Proving allegations.” On December 15, 2015, Davis filed a document
captioned “Opposition to motion of summary judgment,” and three days later he filed a
“Request for Remedies,” and a “Responce [sic] to hear or see case.” On December 22,
2015, TWC filed a “Motion to Strike Plaintiff’s Request for Remedies.” On December 28,
2015, Davis filed an “Opposition to motion for judgment on the pleadings.” On the same
date, TWC filed “Defendant’s Motion to Strike Plaintiff’s Response (sic) to Hear or See
Case.” On December 30, 2015, “Defendant’s Reply to Plaintiff’s Opposition to
Defendant’s Motion for Judgment on the Pleadings” was filed.
{¶ 8} On February 22, 2016, the Magistrate’s decision was filed. According to
the Magistrate, “[f]or the most part, Defendant’s Motion for Summary Judgment accurately
reflects Plaintiff’s disciplinary record before the Court as Defendant’s Motion for Summary
Judgment Exhibits (B) through (Q).” The Magistrate noted that where “Defendant’s
Motion for Summary Judgment differs from the attached documentation, the
undersigned Magistrate finds that the data in the documentation, rather than the data in
the Motion, is correct.” The Magistrate listed 15 instances, beginning December 5, 2008
to May 18, 2013, establishing Davis violated TWC’s attendance policy. The Magistrate
concluded that the “overwhelming evidence * * * is that Plaintiff received 8.5 attendance
-5-
occurrences before he received his final occurrence on May 18, 2013.” The Magistrate
found that “the May 18, 2013 attendance occurrence led to Plaintiff’s termination on June
7, 2013.”
{¶ 9} The Magistrate noted that Davis asserted a claim for intentional infliction of
emotional distress in his response to the motion for summary judgment, not in his
complaint.
{¶ 10} The Magistrate reviewed the relevant law on at-will employment, racial
discrimination under R.C. 4112.02, mixed-motive employment discrimination, retaliation
under R.C. 4112.02, intentional infliction of emotional distress, and summary judgment
analysis. The Magistrate concluded that TWC satisfied its initial summary judgment
burden, and that Davis failed to demonstrate genuine issues of material fact, noting that
in his “plethora of filings, there are no affidavits or sworn or certified copies of papers.”
{¶ 11} The Magistrate found as follows (footnotes omitted):
Plaintiff fails to overcome the presumption that he was an at will
employee of Defendant. The disclaimer in Defendant’s Employee
handbook stating that “Time Warner Cable (TWC) Employees are hired for
an indefinite period of time and are considered ‘at-will’ employees[,]”
negates “any inference of contractual obligations between the parties.”
Although Defendant’s Employee Handbook states that the “policy does not
apply to employees with written Contracts with the Company[,]” there is no
evidence before the undersigned Magistrate regarding a written agreement,
despite Plaintiff’s argument that Ms. Bartlett’s June 6, 2013 Letter is the
“[c]losing of [a] contract.” While Ms. Bartlett’s May 17, 2013 Letter
-6-
indicated that Plaintiff’s desired solution was to retain his employment, it is
completely inconceivable that Ms. Bartlett’s June 6, 2013 Letter could be
construed as either part or a complete contract between the parties.
Furthermore, Plaintiff fails to present any direct or indirect evidence
of racial discrimination in violation of R.C. 4112.02(A). Plaintiff does not
identify who referred to him as a “cracker.” Plaintiff also fails to prove a
prima facie case of racial discrimination pursuant to McDonnell Douglas v.
Green, [411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)] and/or a
reverse discrimination theory. The adverse employment action here is
Plaintiff’s termination. While Plaintiff’s own self-serving statement in his
Complaint indicates that he is white, Plaintiff in his filings does not provide
background circumstances supporting the inference that Defendant “was
the unusual employer who discriminated against the majority.”
Additionally, there is no evidence before the undersigned Magistrate that
Plaintiff was 1) qualified for his position, 2) replaced by someone from
outside the protected class, 3) a comparable protected person was treated
better, or 4) that Defendant treated Plaintiff disparately from similarly-
situated minority employees.
Assuming, arguendo, that Plaintiff could prove a prima facie case of
racial discrimination, Defendant has identified a legitimate,
nondiscriminatory reason for Plaintiff’s termination; Plaintiff’s attendance
issues. Pursuant to McDonnell Douglas and its progeny, the burden shifts
back to Plaintiff to demonstrate that Defendant’s reasoning is merely a
-7-
pretext for racial discrimination. Simply put, Plaintiff does not directly
address this issue in his Response to Motion for Summary Judgment or his
other filings.
However, Plaintiff attempts to challenge the validity of the attendance
data leading to his termination. Admittedly, the undersigned Magistrate
expresses her concern that Defendant’s counsel glosses over the fact that
Ms. Kemp’s termination was due, at least in part, to her actions as Plaintiff’s
supervisor. Ultimately, the overwhelming evidence presented by
Defendant demonstrates that Plaintiff habitually was either absent or late
for work. Without demonstrating that attendance issues were a pretext for
racial discrimination, whether or not Plaintiff received 9 or more occurrences
is irrelevant because he was an at-will employee, meaning he could be
terminated for any lawful reason at any time.
Although not plead by Plaintiff in his Complaint, or even alluded to in
his numerous filings, Plaintiff fails to present a mixed motive discrimination
claim because he fails to identify how race was a factor in his termination.
Insofar as Plaintiff’s Complaint can be interpreted as a retaliation claim
pursuant to R.C. 4112.02(I), Plaintiff arguably 1) engaged in protected
activity through his participation in Defendant’s investigation of Ms. Kemp
and Mr. Pinkney pursuant to Open Door Policy; 2) was subjected to an
adverse employment action, namely his termination; and 3) linked his
termination to his discovery of one of Ms. Kemp’s team member’s scheme
of stealing sales from other employees. However, Defendant identified
-8-
Plaintiff’s attendance issues as the legitimate reason for his termination,
thereby shifting the burden back to Plaintiff. Ultimately, Plaintiff fails to
demonstrate that his attendance issues were a pretext.
While Plaintiff does not state a cause of action for intentional infliction
of emotional distress in his Complaint, he asserts the claim in his Response
to Motion for Summary Judgment. The only evidence before the
undersigned Magistrate regarding this claim are: 1) the references in Ms.
Bartlett’s May 17, 2013 and June 6, 2013 Letters regarding Plaintiff’s
allegation that Mr. Pinkney threatened Plaintiff, which Defendant found to
be unsubstantiated; 2) Defendant’s self-serving statement in his November
5, 2015 Objection to Motion for Summary Judgment that an unnamed
person threatened to break Plaintiff’s legs; 3) the Miami Valley Hospital
Statements which contain Plaintiff’s medical bills, but do not describe his
injuries, if any; and 4) October 30, 2014 Letter from the Flexman Clinic,
which simply indicates that Plaintiff had not sought services at the clinic for
some time.
In short, even in the light most favorable to the nonmoving party,
Plaintiff fails to demonstrate that 1) anyone associated with Defendant
“either intended to cause emotional distress or knew or should have know[n]
that actions taken would result in serious emotion [sic] distress to” Plaintiff;
2) “the actor’s conduct was extreme and outrageous, that it went beyond all
possible bounds of decency and that it can be considered as utterly
intolerable in a civilized community[;]” 3) the actor’s actions were the
-9-
proximate cause of [Plaintiff’s] psychic injury[;] and 4) “that the mental
anguish suffered by [P]laintiff is serious and of a nature that no reasonable
person could be expected to endure it.”
{¶ 12} Also on February 22, 2016, Davis filed a “dismissal without prejudice,”
which provides, “I would like to dismiss my case without prejudice.”
{¶ 13} On March 9, 2016, the trial court adopted the Magistrate’s Decision. The
court’s Judgment Entry provides:
***
The Court finds that the parties in this case have not caused to be
filed any objections to the Magistrate’s Decision pursuant to Civ.R. 53 (D)
(3) (b).
The court next proceeds to determine whether or not there is any
error of law, or defect on the face of the Magistrate’s Decision and the Court
finds neither to be present.
Therefore, the Court adopts the Magistrate’s Decision, its findings,
conclusions and decision as the Court’s own, and this entry shall serve and
be the final judgment entry and order of the Court.
{¶ 14} On March 14, 2016, Davis filed an “Objection to decision made.” It
provides: “On February 22, I entered and filed a motion to dismiss my case without
prejudice.” It further provides: “I plan to re-open my case with legal representation.
Please review the docket and grant my motion to dismiss per Ohio law. The decision
was not made or received until Feb. 26th.”
{¶ 15} On March 18, 2016, the trial court issued an “Order and Entry Overruling
-10-
Plaintiff’s Objection.” The Entry provides:
* * * In the Objection, Plaintiff asserts that his Motion to Dismiss, filed
February 22, 2016, should have been granted instead of the Magistrate
granting Defendant’s Motion for Summary Judgment. * * *
The Decision was filed February 22, 2016 at 10:41 a.m. Decision, p.
1. Plaintiff’s Motion to Dismiss was not filed until 4:09 p.m. Motion, p. 1.
Thus, the Decision was made prior to Plaintiff’s attempt to dismiss his case
without prejudice. The Decision was adopted by the Court on March 9,
2016, and the parties were notified on March 11, 2016 that the March 9,
2016 Judgment Entry Adopting the Magistrate’s Decision may be a final
appealable order. See, Docket.
Accordingly, Plaintiff’s proper remedy lies with the Court of Appeals
and as such, the Court hereby OVERRULES Plaintiff’s Objection. Any
such appeal must be made within thirty days of March 9, 2016.
{¶ 16} Davis asserts the following assignment of error:
THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT FOR DEFENDANT-APPELLEE, TIME WARNER CABLE
(TWC).
{¶ 17} Civ.R. 41 provides as follows (emphasis added):
(A) Voluntary dismissal; effect thereof:
(1) By plaintiff * * *. Subject to the provisions of Civ.R. 23(E), Civ.R.
23.1, and Civ.R. 66, a plaintiff, without order of the court, may dismiss all
claims asserted by that plaintiff against a defendant by doing either of the
-11-
following:
(a) filing a notice of dismissal at any time before the commencement
of trial unless a counterclaim which cannot remain pending for independent
adjudication by the court has been served by that defendant:
***
{¶ 18} “Ohio courts have held that a summary judgment proceeding is not a trial,
but a hearing upon a motion. Morris v. First National Bank & Trust Co. (1968), 15 Ohio
St.2d 184.” Harris v. Coy, 2d Dist. Montgomery No. 11339, 1989 WL 65237, *2 (June 13,
1989). In Jackson v. Allstate Ins. Co., 2d Dist. Montgomery No. 20443, 2004-Ohio-5775,
¶ 33, quoting Standard Oil v. Grice, 46 Ohio App.2d 97, 100-101, 345 N.E.2d 458 (2d
Dist. 1975), this Court noted as follows:
“The language of Civil Rule 41(A)(1) and (C) requires no
construction. It gives either party an absolute right, regardless of motives,
to voluntarily terminate its cause of action at any time prior to the actual
commencement of the trial. There is no exception in the rule for any
possible circumstance that would justify a court in refusing to permit the
withdrawal of a cause prior to the commencement of trial. This is the
traditional Ohio policy of encouraging terminations. While such rule may
be subject to abuse, as was recognized by the civil rules committee, the
only limitation imposed is that a notice of dismissal operates as an
adjudication upon the merits when filed by a party who once previously
dismissed an action based on the same claim.” * * *
{¶ 19} This Court’s decision in Giambrone v. Spalding and Evenflo Co., Inc., 2d
-12-
Dist. Miami No. 96CA08, 1997 WL 189465 (April 18, 1997), is further instructive:
Giambrone originally brought an action against Evenflo for age
discrimination in the Miami County Common Pleas Court in October of
1990. Evenflo moved the common pleas court for Summary Judgment.
The trial court entered decision sustaining Evenflo’s motion for Summary
Judgment on April 8, 1994. The court stated in its decision that “* * *
Counsel for the Defendant shall prepare and circulate a final judgment entry
in accordance with the findings of the court.” Before the Defendant
prepared a final judgment entry for the court, however, Giambrone put on a
motion for voluntary dismissal under Civ.R. 41. The trial court granted
Giambrone’s motion and dismissed the case without prejudice.
Thereafter, on April 17, 1995, Giambrone brought an action for age
discrimination against Evenflo in Montgomery County. Evenflo moved the
Montgomery County Court of Common Pleas to transfer the venue to Miami
County where Evenflo is located. The trial court granted the motion and
referred the case back to Miami County. On September 8, 1995, Evenflo
moved the court to dismiss the complaint or, in the alternative, for summary
judgment. Evenflo asserted in its Motion to Dismiss that the trial court’s
previous decision to grant summary judgment barred relitigation of
Giambrone’s claims under the doctrines of res judicata, law of the case, and
collateral estoppel. On February 27, 1996, the trial court overruled
Evenflo’s Motion to Dismiss, concluding that Civ.R. 41 permitted Giambrone
to dismiss the case and that, therefore, “* * * the [previous] action * * * [had
-13-
to] be treated as if it had never commenced.” The trial court then
proceeded to consider Evenflo’s Motion for Summary Judgment. The
court determined that there was no genuine issue of material fact and that
Evenflo was entitled to judgment on all counts of the complaint as a matter
of law.
Evenlfo now argues that the trial court incorrectly denied its Motion
to Dismiss because the trial court’s decision to grant summary judgment in
favor of Evenflo in the first action was journalized and, therefore, was a final
decision which precluded the grant of a voluntary dismissal in the same
action. Moreover, Evenflo contends that the court’s decision to grant
summary judgment in the first action was a final appealable order. Thus,
Evenflo asserts that Giambrone needed to appeal from that decision.
Since Giambrone did not appeal the court’s first decision and the time for
appealing that decision has run, Evenflo argues that the trial court’s decision
to grant summary judgment in favor of Evenflo in the first action is controlling
in this present action. Evenflo asserts that Giambrone is precluded from
appealing the trial court’s grant of summary judgment in favor of Evenflo in
the present action because the issue of age discrimination was conclusively
resolved in the earlier action.
We are unpersuaded by Evenflo’s contention. In St. Vincent Charity
Hosp. v. Mintz (1987), 33 Ohio St.3d 121, 515 N.E.2d 917, the Ohio
Supreme Court held that where a trial court enters a decision stating that
the prevailing party should prepare a final judgment entry in accordance
-14-
with the court’s decision, the latter is an announcement of the court’s
findings and is not the court’s final judgment entry. In the present case, it is
clear from the trial court’s original decision granting summary judgment in
favor of Evenflo that it was not the court’s final judgment entry. The court
explicitly stated that the final judgment entry was to be journalized later.
The court wrote, “* * * it is the further order of this Court that Counsel for the
defendant shall prepare and circulate a final judgment entry in accordance
with the findings of this Court.” (Emphasis added.) Because the trial court
had not yet rendered a final judgment on the matter, Giambrone was
permitted under Civ.R. 41 to move for a voluntary dismissal.
Furthermore, if a party is granted a voluntary dismissal, the action is
treated as if it had never been commenced. Hence, the dismissed action
cannot serve to bar a later action on the grounds of res judicata, collateral
estoppel, or law of the case. This means that in the present case that the
trial court’s unexecuted decision that summary judgment should be granted
in favor of Evenflo could not be used to bar Giambrone’s subsequent action
in view of the court’s grant of Giambrone’s motion to dismiss. Therefore,
we find that Giambrone could not have appealed the trial court’s original
decision, and that Giambrone’s present appeal of the court’s grant of
summary judgment in favor of Evenflo in the subsequent action is proper. *
**
{¶ 20} Based upon the foregoing, we conclude that Davis’ sole assigned error is
meritorious. Since the trial court had not entered a final judgment on the matter at the
-15-
time that Davis filed his motion to dismiss without prejudice, we conclude that Davis was
permitted under Civ.R. 41 to move for a voluntary dismissal.
{¶ 21} We note that at oral argument, counsel for TWC directed our attention to
this Court’s decision in Brenman v. Reck, 2d Dist. Miami No. 2004 CA 3, 2004-Ohio-5828,
suggesting that the intended effect of Davis’ dismissal was precluded by local rule.
Therein, Brenman filed a 41(A) notice of dismissal, and the clerk of courts “refused to give
effect to her filing because she had failed to pay court costs, which is a prerequisite to
dismissal under the local rules.” Id., ¶ 5. This Court noted that “Miami County Municipal
Court Loc.R. 15.1 provides, in pertinent part ‘No case shall be dismissed by the Parties,
nor shall any Satisfaction of Judgment be filed unless all Court Costs are paid.’ It is
undisputed that Brenman filed her notice of voluntary dismissal without paying
outstanding court costs.” Id., ¶ 9. This Court concluded that “Brenman’s complaint was
not dismissed.” Id., ¶ 14.
{¶ 22} Counsel for TWC directed our attention to Montgomery County Local Rule
2.15, which governs dismissal of actions and provides: “(A) VOLUNTARY DISMISSAL –
NOTICE REQUIREMENT: Any party or party’s counsel who has filed a notice of dismissal
or a stipulation of dismissal pursuant to Civ.R. 41(A)(1) shall promptly inform the assigned
Judge of the voluntary dismissal.” 1 However, Montgomery County Local Rule 1.15
governs the filing of court documents and removal of papers from custody of the clerk
and provides: “Except as otherwise provided in Subsection (J) of this Rule, all civil and
criminal cases, including all pleadings, motions, briefs, memoranda of law, deposition
transcripts, transcripts of proceedings, orders or other documents, shall be filed
1
Adopted effective July 1, 1993; Amended effective June 4, 2010, August 29, 2014.
-16-
electronically through the Court’s authorized electronic filing system (‘eFile System’).”2
{¶ 23} We note that Davis’ motion to dismiss was e-filed on February 22, 2016.
Hence, counsel for TWC’s argument that the trial court was not properly informed of the
filing pursuant to Local Rule 2.15, given the mandatory requirement of e-filing in the
common pleas court, lacks merit.
{¶ 24} For the reasons noted above, Davis’ motion to dismiss remains pending,
and the trial court is therefore authorized to dismiss the matter herein without prejudice.
Accordingly, we hereby dismiss the instant appeal for lack of a final appealable order.
.............
FROELICH, J. and WELBAUM, J., concur.
Copies mailed to:
Anthony Davis
Vincent Norwillo
Hon. Michael W. Krumholtz
2
Amended 8/7/07, effective 8/13/07; Amended 5/3/11, effective 8/8/11; Amended
3/4/14, Effective 3/21/14; Amended 8/12/14, effective 8/29/14.