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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
une 30, 2014 2:55:39 PM
CASE NU IMBER: 2013 CV 01972 Docket ID: 19221098
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
HARLEY SHEPARD CASE NO. 2013 CV 01972
Plaintiff, Judge: Dennis J. Adkins
vs.
MONTGOMERY COUNTY BOARD OF
COUNTY COMMISSIONERS, et al.
Defendants.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
Now comes Plaintiff, Harley Shepherd, by his counsel and submits his response to
Defendants’ Motion for Summary Judgment. Because genuine issues of fact and law exist,
Defendants are not entitled to summary judgment. “The judge’s function is not himselfto weigh
the evidence to determine the truth of the matter, but to determine whether there is a genuine
issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
MEMORANDUM
I. Background
Plaintiff originally filed his Complaint in this Court on March 28, 2013 against The
Montgomery County Board of County Commissioners and John Beckner. Defendants filed a
Motion to Dismiss on April 25, 2013. Defendants’ Motion was deemed moot after Plaintiff's
request for leave amend his Complaint was granted by this Court. After Plaintiff filed his
Amended Complaint on July 9, 2013, Defendant again asked this Court to dismiss Plaintiff's
action on August 6, 2013. Defendants’ motion was not well taken and this Court overruled its
request on October 28, 2013. Now, once again, Defendants take their third crack at a motion and
request the Court to rule on this matter before a jury can hear Plaintiff's claim.
I. The Public Policy Claim
Plaintiff was discharged by Defendant Montgomery County Board of County
Commissioners for reporting criminal activity at the City of Dayton’s Solid Waste facilities Cf,
Motion at 2 and Harley Shepherd Affidavit at paragraph 2 and 3. Ohio public policy is served by
reporting such unlawful activity. Plaintiff was employed as a maintenance worker for the
Division of Solid Waste at both the North and South Yard locations. At the time of Plaintiff's
termination, he was working for the North Yard on Webster Street. See Plaintiff's Amended
Complaint at paragraph 9. Defendants would like this Court to believe that Plaintiff only shared
this information with Defendant Montgomery County Board of Commissioners the day before he
was to be terminated in an attempt to save his position. This is simply not true. Plaintiff, on
several occasions, advised management officials and union representatives that several
employees, including his supervisors were removing items brought in by City of Dayton
residents. See Plaintiff's Amended Verified Complaint at paragraph 14 and Affidavit at
paragraphs 2-5. Ohio Revised Code Sections 2921.41 (Theft in Office), 2921.42 (Having an
Unlawful Interest in Public Contract), 2921.43 (Soliciting or Accepting Improper
Compensation), and 2921.45 (Interfering with Civil Rights) are the relevant criminal statutes that
support Plaintiff's wrongful public policy claim. Even more, it is very shocking that the
Montgomery County Commissioners would not even respond to Plaintiff's counsel in respect to
the letter he wrote before Plaintiff was terminated. Defendants advise in their motion that its
investigation was prompted by an anonymous letter; why not consult Plaintiff
or his counsel in
respect to the public assertions in their letter?
Defendants do not even attempt to gloss over Plaintiff's allegations in his Complaint that
Defendant John Beckner (Plaintiff's Supervisor) himself was guilty of the same crimes Plaintiff
was accused of participating in. Id at 3. Even more egregious, Beckner required Plaintiff
to
scrap aluminum signs at recycling center and provide Beckner with the proceeds of the
transaction. Id at 5. This certainly calls into question if Defendant Beckner was qualified to
recommend Plaintiff's termination. See Plaintiff's Amended Verified Complaint at paragraph
20. Not only was Beckner aware of the crimes and an active participant, but so was Bob
Downing, Defendant’s Manager of the Solid Waste Services Group, whom Defendant
Montgomery County Board of Commissioners’ relies upon to provide an affidavit testimony
regarding the allegations by Plaintiff. Downing, like Beckner, was aware of the crimes and an
active participant. Defendant Montgomery County Board of Commissioners’ brazenly wants
this Court to consider statements made by the various individuals who orchestrated the unlawful
activity and Plaintiff's termination.
The practice of Montgomery County employees removing materials to sell and profit on
their own was very common and done by many employees and several supervisors. See
Plaintiff's Amended Verified Complaint at paragraph 12, 18, 19, 20, and 21. Additionally, see
Plaintiff's affidavit at 2-5. It was not until Plaintiff and his supervisor, Defendant Beckner, got
into a disagreement over a side business deal involving the sale and purchase of a local tavern
that Plaintiff was singled out for his actions. Note that the anonymous letter referenced in
Defendants’ current motion did not implicate a single individual, but many of the North and
South Yard employees.
The Ohio Supreme Court recognizes a cause of action in tort for wrongful discharge in
violation of public policy. Specifically, the court held that “[p]ublic policy warrants an exception
to the employment-at-will doctrine when an employee is discharged or disciplined for a reason
which is prohibited by statute.” Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49
Ohio St.3d 228, 551 N.E.2d 981.
In the years following Greeley, the Supreme Court expanded and otherwise refined the
scope of the wrongful discharge tort. In so doing, the court has held that a valid Greedey claim is
not limited to situations where the discharge violates a statute. Instead, the “clear public policy”
sufficient to justify a wrongful discharge claim “may also be discerned as a matter of law based
on other sources, such as the Constitutions of Ohio and the United States, administrative rules
and regulations, and the common law.” Painter v. Graley (1994), 70 Ohio St.3d 377, 639 N.E.2d
$1, paragraph three of the syllabus (overruling Tul/oh v. Goodyear Atomic Corp. [1992], 62 Ohio
St.3d 541, 584 N.E.2d 729).
In addition to expanding the potential sources of the “clear public policy” for purposes of
a Greeley claim, Painter also suggested defining the tort by using the four elements now
common to the tort: (1) That clear public policy existed and was manifested in a state or federal
constitution, statute or administrative regulation, or in the common law (the clarity element); (2)
that dismissing employees under circumstances like those involved in the plaintiff's dismissal
would jeopardize the public policy (the jeopardy element); (3) the plaintiff's dismissal was
motivated by conduct related to the public policy (the causation element); and (4) the employer
lacked overriding legitimate business justification for the dismissal (the overriding justification
element). Painter, 70 Ohio St.3d at 384, 639 N.E.2d 51, fn. 8.
Less than one year after deciding Painter, the Supreme Court formally adopted the
foregoing four elements of an Ohio common-law claim for wrongful discharge in violation of
public policy. Collins, 73 Ohio St.3d at 69-70, 652 N.E.2d 653. The court further established
that the clarity and jeopardy elements (numbered 1 and 2, respectively above) were questions of
law to be decided by the court while factual issues relating to the causation and overriding
justification elements were generally for the trier of fact to resolve. Jd. at 70, 652 N.E.2d 653.
Clearly Plaintiff has established by the pleading filed herein the first two elements.
Il. Concerns whether Plaintiff is an employee under Greeley v. Miami Valley Maintenance
Contrs., Inc.
Defendants do not believe a public policy exception is applicable to Plaintiff. Plaintiff
was a member of the Union, however, Plaintiff's union refused to take Plaintiff's grievance
arising out of his termination to arbitration, leaving Plaintiff to seek legal redress as he deemed
appropriate. See Exhibit A to Plaintiff's Affidavit. Plaintiff was left with only one recourse, the
filing of the present action. If Plaintiff's union had elected to process Plaintiff's claim to
arbitration, Defendants public policy arguments might be persuasive. However, due to its belief
that allowing Plaintiffs grievance to proceed to arbitration would serve to identify and implicate
other bargaining unit members in the conduct at the North and South yards, the union opted not
to proceed to arbitration over Plaintiff's strenuous objection.
Plaintiffs pleas have been met with deaf ears on both the part of Defendant County
Commissioners and his union. The actual commissioners were given an opportunity to stop this
injustice from occurring. yet chose to ignore Plaintiff's detailed letter describing the activity
ongoing at the North and South yards and referenced in Defendants’ motion. Complicit with
Defendant Montgomery County Commissioners, Plaintiff's union opted not to expose other
members of the bargaining unit by declining to proceed to arbitration. The effect of this behavior
is that Plaintiffis only left with this Court to seek redress. Does the Court truly believe that
Plaintiff was the only employee allegedly involved in the unlawful activities?
Haynes v. Zoological Society of Cincinnati (1995), 73 Ohio St. 3d 254 and its progeny
stand for the proposition that if an employee is an at will employee he needs the protection of the
public policy doctrine because unlike an union employee who cannot be discharged without just
cause, the non union employee has no such protection. However, in this case Plaintiff has been
removed to the level of an at will employee, because his union has failed to take his grievance to
arbitration and his only protection is seeking redress from this Court.
IV. 1s Beckner an Employer
Ohio courts have recognized the availability of individual supervisor liability in wrongful
discharge claims in certain circumstances. Armstrong v. Trans-Serv. Logistics, No. 04CA15,
2005 WL 1301691, *9-10 (Ohio App. May 27, 2005). Similarly
to Armstrong, Plaintiff has
alleged that he was discharged from his employment for reporting suspected criminal activity.
The individual that Plaintiff has named as a defendant (Beckner) was a night supervisor at the
facility he worked and participated in firing him for reporting the violations.
Additionally, while true, employees of political subdivisions are immune from civil
liability, three exceptions are spelled out in R.C. 2744.03:
(6) In addition to any immunity or defense referred to in division (A)(7) of this section
and in circumstances not covered by that division or sections 3314.07 and 3746.24 of the
Revised Code, the employee is immune from liability unless one of the following applies:
(a) The employee's acts or omissions were manifestly outside the scope of the
employee's employment or official responsibilities;
(b) The employee's acts or omissions were with malicious purpose, in bad faith, or
in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of the
Revised Code. Civil liability shall not be construed to exist under another section
of the Revised Code merely because that section imposes a responsibility or
mandatory duty upon an employee, because that section provides for a criminal
penalty, because of a general authorization in that section that an employee may
sue and be sued, or because the section uses the term "shall" in a provision
pertaining to an employee.
Courts have interpreted the exceptions to say "Malicious" means the willful and intentional
desire to harm another, usually seriously, through conduct which is unlawful or unjustified and
which, in some cases, may be criminal. Hicks v. Leffler, 119 Ohio App.3d 424, 428-429, 695
N.E.2d 777 (10th Dist. 1997). "Bad faith" implies a sinister motive that has "no reasonable
justification.” Id. "Bad faith" embraces more than merely bad judgment or negligence. It means a
"dishonest purpose, moral obliquity, conscious wrongdoing,” or the "breach of a known duty
through some ulterior motive or ill will partaking of the nature of fraud. It also embraces the
actual intent to mislead or deceive another." Id.; Jackson v. Butler Cty. Bd of Cty. Commrs., 76
Ohio App.3d 448, 454, 602 N.E.2d 363 (12 Dist.1991). "Wanton misconduct is the failure to
exercise any care toward those to whom a duty of care is owed in circumstances in which there is
great probability that harm will result." Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-
571, 983 N.E.2d 266, { 33, citing Hawkins v. Ivy, 50 Ohio St.2d 114, 117-118, 363 N.E.2d 367
(1977). Merely negligent conduct is not wanton misconduct. Fabrey, 70 Ohio St.3d at 356, 639
N.E.2d 31. It requires that the actor be aware that his conduct will, in all likelihood, result in
injury. Moreover, the standard of proof for wanton misconduct is high. Id. Finally, reckless
conduct "is characterized by the conscious disregard of or indifference to a known or obvious
risk of harm to another that is unreasonable under the circumstances and is substantially greater
than negligent conduct." Anderson at ¥ 34, citing Thompson v. McNeill, 53 Ohio St.3d 102, 104-
105, 559 N.E.2d 705 (1990) (adopting 2 Restatement of the Law 2d, Torts, Section 500, at 587
(1965). As previously noted, John Beckner was an active participant in the larceny of scrap
materials from Defendant. He was one of Defendant's Night Supervisors and known to his own
Supervisor as one of the culprits of the crimes committed against the City of Dayton. With this
known by his Supervisors, it is laughable, and certainly in bad faith, that Beckner would be
chosen to review footage of employees working. Also as previously noted, Defendant Beckner
was upset with Plaintiff due to a side business deal involving the sale ofa local tavern. Beckner
had a dishonest purpose to rid himself
of Plaintiff. Plaintiff was voicing that several supervisors,
including Beckner and Downing not only knew that City of Dayton employees were stealing
scrap metal, they were directing City of Dayton employees, including Plaintiff
to take the scrap
metal to recycling centers and then bring back the money to them. Unfortunately for Plaintiff, he
was chosen as the fall guy for the Solid Waste Services Group, so that his Supervisors could
keep their jobs and the tainted financial proceeds and so he could be punished by Beckner due to
the ill fated tavern purchase.
IV. The Applicable Law
This Court is well aware that summary judgment is not warranted when issues of material
fact remain. It is Defendant’s burden to establish its entitlement to a summary judgment. See
Celotex Corp, v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). This Court must view the
evidence in the light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences. Judgment to the movant arises only if “there is a complete absence of
pleading or proof on an issue or issues material to the cause of action or where there is no
controverter issues of fact upon which reasonable men could differ.” Or Brien v. City of Grand
Rapids, 23 F.3d 990, 995 (6" Cir. 1994). Resolution ofa controversy by summary judgment is
disfavored whenever there is a realistic possibility that genuine issues of material fact will
require jury consideration. Whitelenther v. Yosowitz, (1983), 10 Ohio App. 3d 372, 461 N.E. 2d
1331.
V: Conclusion
Plaintiff has been singled out by his employer and his supervisors for their shared
concerns that they could face their own terminations. Theft was unfortunately a common
practice at the Division of Solid Waste and likely continues today. It was carried out by county
employees and their supervisors and managers. At times, supervisors directed and controlled
their employees to take scrap metal to recycled centers and bring back the profits, such as John
Beckner and Bo Downing. This is not about one individual being caught by Defendant. This
was a concerted effort by many to continue the illegal activity, even after being warned time and
time again. Plaintiff was made the scapegoat as an attempt to show that the illegal activity was
only being done by a select individual. However, as Plaintiff has stated in his affidavit and the
anonymous letter, the illegal activity was widespread throughout the department, especially by
the very people who made the decision to terminate Plaintiff. Plaintiff, through the actions of
both management and his union has been reduced to the level of an at will employee, who is
therefore entitled to the protection of the public policy doctrine. To find otherwise would leave
Plaintiff without any recourse to our courts, something that even at will employees are provided
Due to the many contested issues of fact and law, Plaintiff is entitled to have his fate in
this wrongful discharge action decided by a jury of his peers. Only at that time will the public
become aware of the concerted unlawful activity being conducted at the North and South Yards.
Only then will the public be able to identify in open court the managers and bargaining unit
employees who engage in such unlawful activities. Only then will both the County and
Plaintiff's Union be held accountable for the cover up they have allowed to continue for too
many years. Only then will the citizens of Montgomery County be able to stop this unlawful
activity once and for all.
Respectfully submitted,
DUWEL LAW
/s/ David M. Duwel
DAVID M. DUWEL (0029583)
130 West Second Street, Suite 2101
Dayton, Ohio 45402
(937) 297-1154 Telephone
(937) 297-1152 Facsimile
Attorney for Plaintiff
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the pleading was served pursuant to this
Court’s electronic filing and service procedures, this 30" day of June 2014.
/s/ David M. Duwel
10
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION
HARLEY SHEPHERD CASE NO. 2013 ev 01972
Plaintiff, Judge Adkins
vs.
MONTGOMERY COUNTY BOARD
OF COUNTY COMMISSIONERS, et al.
AFFIDAVIT OF HARLEY SHEPHERD
Defendant.
STATE OF OHIO )
)SS:
COUNTY OF MONTGOMERY )
Harley Shepherd being first duly sworn states:
1 Iam the Plaintiff herein and on July 9, 2013 filed my Amended Verified
Complaint seeking damages against Defendants’ Montgomery County Board of
Commissioners and John Beckner for wrongful discharge;
On several occasions prior to being terminated by Defendant Montgomery County
I advised Defendant’s management team that various employees, including
supervisors had been removing items from both its North and South yards for
their personal gain:
The activity described in the above paragraph had been going on for several years.
Every few years Defendant Montgomery County would announce its intention to
start enforcing the rules prohibiting employees from removing items from the
yards for their own personal use and gain. During these times Plaintiff would
advise Defendant management that said threatened enforcement of its rules would
not be effective unless the rules were enforced against all employees, including
supervisors and managers;
Indeed Plaintiffs supervisor, Defendant Beckner who allegedly recommended
Plaintiff's termination, was one of the biggest violators of Defendant’s rules;
As stated in my Verified Complaint and in my Memorandum Opposing
Defendant’s Motion for Summary Judgment, Defendant Beckner forced me to
scrap aluminum signs at recycling centers and pay Beckner with the proceeds of
the transaction. Bob Downing, Manager of the Solid Waste Services Group was
also aware of the unlawful activity at the yard and also personally benefited from
same; and
My local union, AFSCME Ohio Council 8 elected not to take my grievance
protesting my termination to arbitration, thereby precluding me of my right to
challenge the unlawful and discriminatory discipline I received. A copy of the
union letter is attached to this affidavit as Exhibit A.
Further affiant sayeth not.
Seer
Harley Shephérd
Sworn to and subscribed before me, a Notary Public, this 30" day of June 2014.
NOT: LIC
DAV! M. DU ary Publtt
In and for ef Ohio
My. Commission Has No Expiration Date
RECD AUG 23 2012 15 Gates Street
Dayton, Ohio 45402-2917
Telephone: (937) 461-9983
F
.
Fax: (937) 461-9916
OHIO COUNCIL8 Toll Free: (800) 361-6746
Marcia Knox
Regional Director
August 22, 2012
John A. Lyall
President
Mr. David M. Duwel, Esq.
Harold Mitchell
First Vice President Duwel Law
Eric Clemons
130 W. Second Street, Suite 2101
Secretary-Treasurer Dayton, Ohio 45402
Cenia M. Willis
Recording Secretary Re: Harley Shepard
Vice Presidents
Akron Dear Mr. Duwel:
Eddie W. Lawson
Thomas G. Morneweck
I am in receipt of your letter dated August 14, 2012 in regards to Mr. Harley
Athens
John Dillon, 1 Shepard’s termination from Montgomery County Environmental Services Mr.
Mary A. Snow Shepard exhausted all the internal means per the collective bargaining agreement.
Cincinnati Arbitrations are approved based upon the merits of the case.
Josepha D. Garette
Emily M. Moore
Your office may proceed with any legal recourse that you and Mr. Shepard deem
Cleveland
Julie M. Albers as appropriate against Montgomery County Board of County Commissioners.
Pamela D. Brown
Columbus
Peg N. McClain =
[fo ~
Douglas C. Moore
Dayton }
Ruth Ritchie.__.
Kenneth Sulfridge Ss
tt Thoma: sson
Toledo Staff Representative
Sandra L. Coutcher
Thomas Kosek, Jr.
ce: Rick Stephen, Chapter Chairperson
Youngstown Gena Tamaska, Chief Steward
Thomas R. Connelly
Pamela S. Shelton Harley Shepard, Grievant
File
At-Large
Asyia Haile
Ella Hopkins
Trustees
Kimberly N. Gaines
Patricia A. Taylor EXHIBIT
Helen S. Youngblood
A
LE
‘CIMIE AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO
We Make America Happen
+
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ELECTRONICALLY FILED COURT OF COMMON PLEAS une 30, 2014 2:55:39 PM CASE NU IMBER: 2013 CV 01972 Docket ID: 19221098 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO HARLEY SHEPARD CASE NO. 2013 CV 01972 Plaintiff, Judge: Dennis J. Adkins vs. MONTGOMERY COUNTY BOARD OF COUNTY COMMISSIONERS, et al. Defendants. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Now comes Plaintiff, Harley Shepherd, by his counsel and submits his response to Defendants’ Motion for Summary Judgment. Because genuine issues of fact and law exist, Defendants are not entitled to summary judgment. “The judge’s function is not himselfto weigh the evidence to determine the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). MEMORANDUM I. Background Plaintiff originally filed his Complaint in this Court on March 28, 2013 against The Montgomery County Board of County Commissioners and John Beckner. Defendants filed a Motion to Dismiss on April 25, 2013. Defendants’ Motion was deemed moot after Plaintiff's request for leave amend his Complaint was granted by this Court. After Plaintiff filed his Amended Complaint on July 9, 2013, Defendant again asked this Court to dismiss Plaintiff's action on August 6, 2013. Defendants’ motion was not well taken and this Court overruled its request on October 28, 2013. Now, once again, Defendants take their third crack at a motion and request the Court to rule on this matter before a jury can hear Plaintiff's claim. I. The Public Policy Claim Plaintiff was discharged by Defendant Montgomery County Board of County Commissioners for reporting criminal activity at the City of Dayton’s Solid Waste facilities Cf, Motion at 2 and Harley Shepherd Affidavit at paragraph 2 and 3. Ohio public policy is served by reporting such unlawful activity. Plaintiff was employed as a maintenance worker for the Division of Solid Waste at both the North and South Yard locations. At the time of Plaintiff's termination, he was working for the North Yard on Webster Street. See Plaintiff's Amended Complaint at paragraph 9. Defendants would like this Court to believe that Plaintiff only shared this information with Defendant Montgomery County Board of Commissioners the day before he was to be terminated in an attempt to save his position. This is simply not true. Plaintiff, on several occasions, advised management officials and union representatives that several employees, including his supervisors were removing items brought in by City of Dayton residents. See Plaintiff's Amended Verified Complaint at paragraph 14 and Affidavit at paragraphs 2-5. Ohio Revised Code Sections 2921.41 (Theft in Office), 2921.42 (Having an Unlawful Interest in Public Contract), 2921.43 (Soliciting or Accepting Improper Compensation), and 2921.45 (Interfering with Civil Rights) are the relevant criminal statutes that support Plaintiff's wrongful public policy claim. Even more, it is very shocking that the Montgomery County Commissioners would not even respond to Plaintiff's counsel in respect to the letter he wrote before Plaintiff was terminated. Defendants advise in their motion that its investigation was prompted by an anonymous letter; why not consult Plaintiff or his counsel in respect to the public assertions in their letter? Defendants do not even attempt to gloss over Plaintiff's allegations in his Complaint that Defendant John Beckner (Plaintiff's Supervisor) himself was guilty of the same crimes Plaintiff was accused of participating in. Id at 3. Even more egregious, Beckner required Plaintiff to scrap aluminum signs at recycling center and provide Beckner with the proceeds of the transaction. Id at 5. This certainly calls into question if Defendant Beckner was qualified to recommend Plaintiff's termination. See Plaintiff's Amended Verified Complaint at paragraph 20. Not only was Beckner aware of the crimes and an active participant, but so was Bob Downing, Defendant’s Manager of the Solid Waste Services Group, whom Defendant Montgomery County Board of Commissioners’ relies upon to provide an affidavit testimony regarding the allegations by Plaintiff. Downing, like Beckner, was aware of the crimes and an active participant. Defendant Montgomery County Board of Commissioners’ brazenly wants this Court to consider statements made by the various individuals who orchestrated the unlawful activity and Plaintiff's termination. The practice of Montgomery County employees removing materials to sell and profit on their own was very common and done by many employees and several supervisors. See Plaintiff's Amended Verified Complaint at paragraph 12, 18, 19, 20, and 21. Additionally, see Plaintiff's affidavit at 2-5. It was not until Plaintiff and his supervisor, Defendant Beckner, got into a disagreement over a side business deal involving the sale and purchase of a local tavern that Plaintiff was singled out for his actions. Note that the anonymous letter referenced in Defendants’ current motion did not implicate a single individual, but many of the North and South Yard employees. The Ohio Supreme Court recognizes a cause of action in tort for wrongful discharge in violation of public policy. Specifically, the court held that “[p]ublic policy warrants an exception to the employment-at-will doctrine when an employee is discharged or disciplined for a reason which is prohibited by statute.” Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981. In the years following Greeley, the Supreme Court expanded and otherwise refined the scope of the wrongful discharge tort. In so doing, the court has held that a valid Greedey claim is not limited to situations where the discharge violates a statute. Instead, the “clear public policy” sufficient to justify a wrongful discharge claim “may also be discerned as a matter of law based on other sources, such as the Constitutions of Ohio and the United States, administrative rules and regulations, and the common law.” Painter v. Graley (1994), 70 Ohio St.3d 377, 639 N.E.2d $1, paragraph three of the syllabus (overruling Tul/oh v. Goodyear Atomic Corp. [1992], 62 Ohio St.3d 541, 584 N.E.2d 729). In addition to expanding the potential sources of the “clear public policy” for purposes of a Greeley claim, Painter also suggested defining the tort by using the four elements now common to the tort: (1) That clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element); (2) that dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy (the jeopardy element); (3) the plaintiff's dismissal was motivated by conduct related to the public policy (the causation element); and (4) the employer lacked overriding legitimate business justification for the dismissal (the overriding justification element). Painter, 70 Ohio St.3d at 384, 639 N.E.2d 51, fn. 8. Less than one year after deciding Painter, the Supreme Court formally adopted the foregoing four elements of an Ohio common-law claim for wrongful discharge in violation of public policy. Collins, 73 Ohio St.3d at 69-70, 652 N.E.2d 653. The court further established that the clarity and jeopardy elements (numbered 1 and 2, respectively above) were questions of law to be decided by the court while factual issues relating to the causation and overriding justification elements were generally for the trier of fact to resolve. Jd. at 70, 652 N.E.2d 653. Clearly Plaintiff has established by the pleading filed herein the first two elements. Il. Concerns whether Plaintiff is an employee under Greeley v. Miami Valley Maintenance Contrs., Inc. Defendants do not believe a public policy exception is applicable to Plaintiff. Plaintiff was a member of the Union, however, Plaintiff's union refused to take Plaintiff's grievance arising out of his termination to arbitration, leaving Plaintiff to seek legal redress as he deemed appropriate. See Exhibit A to Plaintiff's Affidavit. Plaintiff was left with only one recourse, the filing of the present action. If Plaintiff's union had elected to process Plaintiff's claim to arbitration, Defendants public policy arguments might be persuasive. However, due to its belief that allowing Plaintiffs grievance to proceed to arbitration would serve to identify and implicate other bargaining unit members in the conduct at the North and South yards, the union opted not to proceed to arbitration over Plaintiff's strenuous objection. Plaintiffs pleas have been met with deaf ears on both the part of Defendant County Commissioners and his union. The actual commissioners were given an opportunity to stop this injustice from occurring. yet chose to ignore Plaintiff's detailed letter describing the activity ongoing at the North and South yards and referenced in Defendants’ motion. Complicit with Defendant Montgomery County Commissioners, Plaintiff's union opted not to expose other members of the bargaining unit by declining to proceed to arbitration. The effect of this behavior is that Plaintiffis only left with this Court to seek redress. Does the Court truly believe that Plaintiff was the only employee allegedly involved in the unlawful activities? Haynes v. Zoological Society of Cincinnati (1995), 73 Ohio St. 3d 254 and its progeny stand for the proposition that if an employee is an at will employee he needs the protection of the public policy doctrine because unlike an union employee who cannot be discharged without just cause, the non union employee has no such protection. However, in this case Plaintiff has been removed to the level of an at will employee, because his union has failed to take his grievance to arbitration and his only protection is seeking redress from this Court. IV. 1s Beckner an Employer Ohio courts have recognized the availability of individual supervisor liability in wrongful discharge claims in certain circumstances. Armstrong v. Trans-Serv. Logistics, No. 04CA15, 2005 WL 1301691, *9-10 (Ohio App. May 27, 2005). Similarly to Armstrong, Plaintiff has alleged that he was discharged from his employment for reporting suspected criminal activity. The individual that Plaintiff has named as a defendant (Beckner) was a night supervisor at the facility he worked and participated in firing him for reporting the violations. Additionally, while true, employees of political subdivisions are immune from civil liability, three exceptions are spelled out in R.C. 2744.03: (6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections 3314.07 and 3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies: (a) The employee's acts or omissions were manifestly outside the scope of the employee's employment or official responsibilities; (b) The employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; (c) Civil liability is expressly imposed upon the employee by a section of the Revised Code. Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon an employee, because that section provides for a criminal penalty, because of a general authorization in that section that an employee may sue and be sued, or because the section uses the term "shall" in a provision pertaining to an employee. Courts have interpreted the exceptions to say "Malicious" means the willful and intentional desire to harm another, usually seriously, through conduct which is unlawful or unjustified and which, in some cases, may be criminal. Hicks v. Leffler, 119 Ohio App.3d 424, 428-429, 695 N.E.2d 777 (10th Dist. 1997). "Bad faith" implies a sinister motive that has "no reasonable justification.” Id. "Bad faith" embraces more than merely bad judgment or negligence. It means a "dishonest purpose, moral obliquity, conscious wrongdoing,” or the "breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces the actual intent to mislead or deceive another." Id.; Jackson v. Butler Cty. Bd of Cty. Commrs., 76 Ohio App.3d 448, 454, 602 N.E.2d 363 (12 Dist.1991). "Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result." Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio- 571, 983 N.E.2d 266, { 33, citing Hawkins v. Ivy, 50 Ohio St.2d 114, 117-118, 363 N.E.2d 367 (1977). Merely negligent conduct is not wanton misconduct. Fabrey, 70 Ohio St.3d at 356, 639 N.E.2d 31. It requires that the actor be aware that his conduct will, in all likelihood, result in injury. Moreover, the standard of proof for wanton misconduct is high. Id. Finally, reckless conduct "is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct." Anderson at ¥ 34, citing Thompson v. McNeill, 53 Ohio St.3d 102, 104- 105, 559 N.E.2d 705 (1990) (adopting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). As previously noted, John Beckner was an active participant in the larceny of scrap materials from Defendant. He was one of Defendant's Night Supervisors and known to his own Supervisor as one of the culprits of the crimes committed against the City of Dayton. With this known by his Supervisors, it is laughable, and certainly in bad faith, that Beckner would be chosen to review footage of employees working. Also as previously noted, Defendant Beckner was upset with Plaintiff due to a side business deal involving the sale ofa local tavern. Beckner had a dishonest purpose to rid himself of Plaintiff. Plaintiff was voicing that several supervisors, including Beckner and Downing not only knew that City of Dayton employees were stealing scrap metal, they were directing City of Dayton employees, including Plaintiff to take the scrap metal to recycling centers and then bring back the money to them. Unfortunately for Plaintiff, he was chosen as the fall guy for the Solid Waste Services Group, so that his Supervisors could keep their jobs and the tainted financial proceeds and so he could be punished by Beckner due to the ill fated tavern purchase. IV. The Applicable Law This Court is well aware that summary judgment is not warranted when issues of material fact remain. It is Defendant’s burden to establish its entitlement to a summary judgment. See Celotex Corp, v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). This Court must view the evidence in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences. Judgment to the movant arises only if “there is a complete absence of pleading or proof on an issue or issues material to the cause of action or where there is no controverter issues of fact upon which reasonable men could differ.” Or Brien v. City of Grand Rapids, 23 F.3d 990, 995 (6" Cir. 1994). Resolution ofa controversy by summary judgment is disfavored whenever there is a realistic possibility that genuine issues of material fact will require jury consideration. Whitelenther v. Yosowitz, (1983), 10 Ohio App. 3d 372, 461 N.E. 2d 1331. V: Conclusion Plaintiff has been singled out by his employer and his supervisors for their shared concerns that they could face their own terminations. Theft was unfortunately a common practice at the Division of Solid Waste and likely continues today. It was carried out by county employees and their supervisors and managers. At times, supervisors directed and controlled their employees to take scrap metal to recycled centers and bring back the profits, such as John Beckner and Bo Downing. This is not about one individual being caught by Defendant. This was a concerted effort by many to continue the illegal activity, even after being warned time and time again. Plaintiff was made the scapegoat as an attempt to show that the illegal activity was only being done by a select individual. However, as Plaintiff has stated in his affidavit and the anonymous letter, the illegal activity was widespread throughout the department, especially by the very people who made the decision to terminate Plaintiff. Plaintiff, through the actions of both management and his union has been reduced to the level of an at will employee, who is therefore entitled to the protection of the public policy doctrine. To find otherwise would leave Plaintiff without any recourse to our courts, something that even at will employees are provided Due to the many contested issues of fact and law, Plaintiff is entitled to have his fate in this wrongful discharge action decided by a jury of his peers. Only at that time will the public become aware of the concerted unlawful activity being conducted at the North and South Yards. Only then will the public be able to identify in open court the managers and bargaining unit employees who engage in such unlawful activities. Only then will both the County and Plaintiff's Union be held accountable for the cover up they have allowed to continue for too many years. Only then will the citizens of Montgomery County be able to stop this unlawful activity once and for all. Respectfully submitted, DUWEL LAW /s/ David M. Duwel DAVID M. DUWEL (0029583) 130 West Second Street, Suite 2101 Dayton, Ohio 45402 (937) 297-1154 Telephone (937) 297-1152 Facsimile Attorney for Plaintiff CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the pleading was served pursuant to this Court’s electronic filing and service procedures, this 30" day of June 2014. /s/ David M. Duwel 10 IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CIVIL DIVISION HARLEY SHEPHERD CASE NO. 2013 ev 01972 Plaintiff, Judge Adkins vs. MONTGOMERY COUNTY BOARD OF COUNTY COMMISSIONERS, et al. AFFIDAVIT OF HARLEY SHEPHERD Defendant. STATE OF OHIO ) )SS: COUNTY OF MONTGOMERY ) Harley Shepherd being first duly sworn states: 1 Iam the Plaintiff herein and on July 9, 2013 filed my Amended Verified Complaint seeking damages against Defendants’ Montgomery County Board of Commissioners and John Beckner for wrongful discharge; On several occasions prior to being terminated by Defendant Montgomery County I advised Defendant’s management team that various employees, including supervisors had been removing items from both its North and South yards for their personal gain: The activity described in the above paragraph had been going on for several years. Every few years Defendant Montgomery County would announce its intention to start enforcing the rules prohibiting employees from removing items from the yards for their own personal use and gain. During these times Plaintiff would advise Defendant management that said threatened enforcement of its rules would not be effective unless the rules were enforced against all employees, including supervisors and managers; Indeed Plaintiffs supervisor, Defendant Beckner who allegedly recommended Plaintiff's termination, was one of the biggest violators of Defendant’s rules; As stated in my Verified Complaint and in my Memorandum Opposing Defendant’s Motion for Summary Judgment, Defendant Beckner forced me to scrap aluminum signs at recycling centers and pay Beckner with the proceeds of the transaction. Bob Downing, Manager of the Solid Waste Services Group was also aware of the unlawful activity at the yard and also personally benefited from same; and My local union, AFSCME Ohio Council 8 elected not to take my grievance protesting my termination to arbitration, thereby precluding me of my right to challenge the unlawful and discriminatory discipline I received. A copy of the union letter is attached to this affidavit as Exhibit A. Further affiant sayeth not. Seer Harley Shephérd Sworn to and subscribed before me, a Notary Public, this 30" day of June 2014. NOT: LIC DAV! M. DU ary Publtt In and for ef Ohio My. Commission Has No Expiration Date RECD AUG 23 2012 15 Gates Street Dayton, Ohio 45402-2917 Telephone: (937) 461-9983 F . Fax: (937) 461-9916 OHIO COUNCIL8 Toll Free: (800) 361-6746 Marcia Knox Regional Director August 22, 2012 John A. Lyall President Mr. David M. Duwel, Esq. Harold Mitchell First Vice President Duwel Law Eric Clemons 130 W. Second Street, Suite 2101 Secretary-Treasurer Dayton, Ohio 45402 Cenia M. Willis Recording Secretary Re: Harley Shepard Vice Presidents Akron Dear Mr. Duwel: Eddie W. Lawson Thomas G. Morneweck I am in receipt of your letter dated August 14, 2012 in regards to Mr. Harley Athens John Dillon, 1 Shepard’s termination from Montgomery County Environmental Services Mr. Mary A. Snow Shepard exhausted all the internal means per the collective bargaining agreement. Cincinnati Arbitrations are approved based upon the merits of the case. Josepha D. Garette Emily M. Moore Your office may proceed with any legal recourse that you and Mr. Shepard deem Cleveland Julie M. Albers as appropriate against Montgomery County Board of County Commissioners. Pamela D. Brown Columbus Peg N. McClain = [fo ~ Douglas C. Moore Dayton } Ruth Ritchie.__. Kenneth Sulfridge Ss tt Thoma: sson Toledo Staff Representative Sandra L. Coutcher Thomas Kosek, Jr. ce: Rick Stephen, Chapter Chairperson Youngstown Gena Tamaska, Chief Steward Thomas R. Connelly Pamela S. Shelton Harley Shepard, Grievant File At-Large Asyia Haile Ella Hopkins Trustees Kimberly N. Gaines Patricia A. Taylor EXHIBIT Helen S. Youngblood A LE ‘CIMIE AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO We Make America Happen +