Motion for Summary Judgment in HARLEY SHEPHERD vs MONTGOMERY COUNTY DEPT ENVIRONMENTAL SERVICES| Trellis.Law

On March 28, 2013 a Motion,Ex Parte was filed involving a dispute between Harley Shepherd, and John Beckner, Montgomery County Board Of Commissioners, Montgomery County Dept Environmental Services, for JOHN BECKNER in the District Court of Montgomery County.

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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Friday, May 30, 2014 3:20:40 PM
CASE NUMBER: 2013 CV 01972 Docket ID: 19141077
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO

IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION

HARLEY SHEPHERD, : CASE NO. 2013-CV-01972

Plaintiff, : (Judge Dennis J. Adkins)

v. :

MONTGOMERY COUNTY BOARD OF : DEFENDANTS’ MOTION FOR
COUNTY COMMISSIONERS, et al., SUMMARY JUDGMENT
:
Defendants.

Now come Defendants, by and through counsel, the Prosecuting Attorney
for Montgomery County, Ohio, and pursuant to Civil Rule 56, move this Court to
grant summary judgment in their favor pursuant to Civ.R. 56, for the reasons
listed in the attached Memorandum.

Respectfully submitted,

MATHIAS H. HECK, JR.
PROSECUTING ATTORNEY

By: s/ Todd M. Ahearn
Todd M. Ahearn, #0069674
Assistant Prosecuting Attorney
Montgomery County Prosecutor’s Office
301 West Third Street
P.O. Box 972
Dayton, Ohio 45422
Telephone: (937) 496-6870
Fax Number: (937) 225-4822
E-mail: ahearnt@mcohio.org
By: s/ Jonathan A. Ketter
Jonathan A. Ketter, #0084064
Assistant Prosecuting Attorney
Montgomery County Prosecutor’s Office
301 West Third Street
P.O. Box 972
Dayton, Ohio 45422
Telephone: (937) 225-3499
Fax Number: (937) 225-4822
E-mail: ketterj@mcohio.org

MEMORANDUM

STATEMENT OF THE CASE AND FACTS

The Board of County Commissioners for Montgomery County, Ohio (“the

County”) received an anonymous letter dated August 1, 2011. [Exhibit A.] The

letter alleged numerous types of thefts which may be occurring at Montgomery

County Environmental Services locations. In response, the County contacted

Montgomery County Sheriff’s Office to conduct a police investigation.

Additionally, discussions began concerning security changes that could be

implemented to prevent any theft and identify any employees participating in the

thefts. A meeting was held with County supervisors on September 28, 2011 to

discuss these matters. [See Exhibit B.] This included proposals for security

changes involving locks, cameras, heightened supervision of employees, and

zero tolerance for scavenging or scrapping by employees.

Later in the year, supervisors found metal that appeared to be secretly

stored at a County facility. It was believed that the items may have been placed

there by an employee for retrieval at a later time. As a result Bob Downing,

Manager of the Montgomery County Solid Waste Services Group, determined

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that an investigation needed to be conducted. [See Affidavit attached as Exhibit

F.] A Memorandum was also sent to all employees on December 8, 2011,

reminding everyone of the ethical standards for employees and stating that the

taking of scrap metal, car batteries or other items intended for recycling was

improper and could subject an employee to termination. [Exhibit C.]

On December 12, 2011, PLE Group, a private security company, provided

a proposal to the County. This proposal included the installation of cameras,

which the County agreed to. These cameras were later installed on December

21, 2011 and connected to a digital video recorder (DVR) system. On January 9,

2012, John Beckner, a supervisor for the Solid Waste Service Group for the

County, reviewed the video recorded by the same security cameras. As part of

the video review John Beckner noted three occasions where Harley Shepherd

and/or his step-son removed property by placing items into Harley Shepherd’s

van. After reviewing the video, Harley Shepherd and a supervisor, Steve

Hannigan, were placed on administrative leave.

A pre-disciplinary meeting was held on April 2, 2012, which included

Harley Shepherd and his legal counsel. In a fax dated April 10, 2012, Harley

Shepherd, through his counsel, delivered a letter to the Board of County

Commissioners indicating that many individuals were taking property and

scrapping the items. [Exhibit D.] Mr. Shepherd sent this letter one day before

the County Commissioners were likely to address disciplinary action against him.

The letter acknowledges the same. Through a letter dated April 11, 2012, Harley

Shepherd was terminated from employment, effective the same day.

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On March 28, 2013 Plaintiff filed his initial complaint. Before the Court

currently is Plaintiff’s Amended Verified Complaint for Wrongful Discharge filed

on July 9, 2013. Plaintiff names the Montgomery County Board of

Commissioners and John Beckner. Plaintiff’s only cause of action is for Wrongful

Discharge in Violation of Public Policy. On August 6, 2013, Defendants filed a

Motion to Dismiss the Complaint. The Court denied the request by decision filed

on October 28, 2013.

Defendants now move this Court for summary judgment pursuant to

Civ.R. 56. Specifically, Defendants maintain that no cause of action exists for

wrongful termination based upon public policy for union employees; John

Beckner has immunity as a public employee; no cause of action exists against

John Beckner as a supervisor in an action for wrongful termination; and no

dispute of material fact exists. Therefore, Defendants are entitled to dismissal

judgment as a matter of law.

APPLICABLE LAW

The standard for summary judgment is set forth in Civ.R. 56. Civ.R. 56(C)

provides that summary judgment shall be rendered if “there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a

matter of law.” A summary judgment shall not be rendered unless it appears

from the evidence submitted that reasonable minds can come to but one

conclusion and that conclusion is adverse to the party against whom the motion

for summary judgment is made, that party being entitled to have the evidence

construed most strongly in the party’s favor.” Civ.R. 56(C).

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Pursuant to Civ.R. 56, summary judgment is appropriate upon the

demonstration that: (1) there is no genuine issue as to any material fact; (2) the

moving party is entitled to judgment as a matter of law; and (3) reasonable minds

can come to but one conclusion, and that conclusion is adverse to the party

against whom the motion for summary judgment is made. See, Harless v. Willis

Day Warehousing Co. (1978), 54 Ohio St. 2d 64. “Once the moving party meets

its burden, the nonmoving party then has a reciprocal burden to set forth specific

facts showing that there is a genuine issue of material fact for trial.” Dailey v.

Eaton Corp., 138 Ohio App.3d 575, 580 (3rd Dist. 2000), citing A. Doe v. First

Presbyterian Church (USA) (1998), 126 Ohio App.3d 358, 364. “The nonmoving

party may not rest on the mere allegations of her pleading.” Id., citing, State ex

rel. Burnes v. Athens Cty. Clerk of Courts (1998), 83 Ohio St.3d 523, 524. “Most

importantly, the nonmovant's failure of proof on an essential element of the case

necessarily renders all other facts immaterial.” Id., citing Celotex Corp. v. Catrett

(1986), 477 U.S. 317, 323.

1. Based upon Plaintiff being an employee covered by a Collective Bargaining

Agreement, a cause of action for wrongful termination in violation of public policy

is barred and the Collective Bargaining Agreement provides the sole remedy.

The Ohio Supreme Court has previously found union employees are

barred from pursuing actions for wrongful discharge in violation of public policy.

Haynes v. Zoological Society of Cincinnati, 73 Ohio St.3d 254 (1995). This ruling

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has been interpreted and expounded upon by the Second District. In Edwards v.

Dubruiel the Court wrote:

“The Ohio Supreme Court has established a common-law cause of
action for retaliation by an employer. Greeley v. Miami Valley
Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 233-34, 551
N.E.2d 981. The Greeley common-law cause of action is available
when an ‘employee-at-will’ has been terminated or subjected to
employment discipline in violation of a ‘clear public policy.’ Id.
Courts have emphasized that this cause of action is limited to
‘employees-at-will.’ Haynes v. Zoological Soc. of Cincinnati (1995),
73 Ohio St.3d 254, 652 N.E.2d 948, at syllabus.

“Further, the identifying characteristic of an ‘employment-at-will’
relationship is that either the employer or the employee may
terminate the employment relationship for any reason which is not
contrary to law. Id. For example, a union employee is not an
employee-at-will. Id.

“ ‘Clear public policy’ as used by the Supreme Court is not limited to
public policy expressed by the General Assembly in the form of
statutory enactment, but may also be discerned as a matter of law
based on other sources, such as the Constitutions of the United
States and Ohio, administrative rules and regulations, and the
common law. Painter v. Graley (1994), 70 Ohio St.3d 377, 639
N.E.2d 51, at paragraph 3 of syllabus.

“The four elements of a Greeley common-law cause of action for
retaliation against an ‘employee-at-will’ are: (1) a 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) dismissing or disciplining employees under the
circumstances at hand would jeopardize the public policy (the
jeopardy element); (3) plaintiff's dismissal or discipline 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 causation element).
Collins v. Rizkana (1995), 73 Ohio St.3d 65, 74, 652 N.E.2d 653,
reconsideration denied, 74 Ohio St.3d 1409, 655 N.E.2d 188.
“There is no common law tort for wrongful discharge and, therefore,
a claim for wrongful discharge does not exist absent a Greeley
public policy exception. Stephenson v. Yellow Freight Sys., Inc.,
Franklin App. Case No. 99AP-77, 1999 WL 969817, (Oct. 26,
1999), dismissed, appeal not allowed, 88 Ohio St.3d 1432, 724
N.E.2d 809. Greely claims are limited to at-will employees. Haynes

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v. Zoological Soc. of Cincinnati (1995), 73 Ohio St.3d 254, 652
N.E.2d 948. The identifying characteristic of an employment-at-will
relationship is that either the employer or the employee may
terminate the employment relationship for any reason which is not
contrary to law. Id. For example, a union employee is not an
employee-at-will. Id.

Edwards v. Dubruiel, 2002-Ohio-7093, ¶¶53-57 (2nd Dist. 2002). See Also,

Schutte v. The Danis Cos., 141 Ohio App. 3d 824, 832-33, 753 N.E.2d 899, 906

(2nd Dist. 2001).

Plaintiff is not an employee-at-will. Plaintiff acknowledges that he was

represented by the Dayton Public Service of Ohio Union during his employment

and as such has protections granted within the Collective Bargaining Agreement.

[Exhibit E.] Pursuant to Article 2, Management has the “right to discharge for just

cause.” {emphasis added}. Article 12, Section 2 states, “[a]llgrievances are to

be settle in accordance with the four (4) step grievance procedure set forth

below.” Article 14, Section 1 states, “[i]t is agreed that the County has the right to

discipline or discharge employees for just cause.” The requirement of just cause

removes Plaintiff from any possible classification of at-will. If Plaintiff were an at-

will employee he would have been able to be removed for any cause.

As Plaintiff is not an at-will employee, no cause of action exists for

wrongful termination in violation of public policy and this Complaint should be

dismissed as a matter of law.

2. Defendant, John Beckner, is immune from liability under R.C.2744.03.

In addition to there being no cause of action of wrongful termination for an

employee that is not at-will, Defendant, John Beckner, is additionally immune

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from liability under R.C. 2744.03. Employees of political subdivisions are

immune from civil liability subject to three exceptions found in R.C. § 2744.03,

which states:

(A) In a civil action brought against a political subdivision or an
employee of a political subdivision to recover damages for
injury, death, or loss to person or property allegedly caused
by any act or omission in connection with a governmental or
propriety function, the following defenses or immunities may
be asserted to establish nonliability:
***

(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 employer’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.

***

An employee of a political subdivision is presumed immune unless one of

these exceptions to immunity is established. Cook v. Cincinnati, 103 Ohio

App.3d 80, 90 (1995); Fabrey v. McDonald Police Dept., 70 Ohio St.3d 351

(1994). Whether a political subdivision employee is liable as an individual “turns

on the availability of statutory immunity as defined in Chapter 2744.” Chester v.

Neyer, 477 F. 3d 784 (6th Circuit 2007).

In the case at bar, Plaintiff does not allege that either R.C. §

2744.03(A)(6)(a) or (c) apply. Therefore, Defendants are immune from liability

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unless Plaintiff can demonstrate that they acted with malicious purpose, in bad

faith, or in a wanton or reckless manner. “The standard for demonstrating such

conduct is high.” Winkle v. Zettler Funeral Homes, Inc., 1982 Ohio App.3d 195,

205 (12th District 2009). “By implication, an employee is immune from liability for

negligent acts or omissions.” Anderson v. Massillon, Slip Opinion No. 2012-Ohio-

5711 at para. 23 (December 6, 2012).

“Malice” is defined as “the willful and intentional design to harm another by

inflicting serious injury without excuse or justification.” Winkle v. Zettler Funeral

Homes, Inc., 1982 Ohio App.3d at 204, citing Brewer v. W. Chester Twp.

Planning and Zoning Dept., Butler App.No CA2002-01-026, 2002-Ohio-4483.

“Willful misconduct implies an intentional deviation from a clear duty or from a

definite rule of conduct, a deliberate purpose not to discharge some duty

necessary to safety, or purposefully doing wrongful acts with knowledge or

appreciation of the likelihood of resulting injury.” Anderson v. Massillon, supra, at

syllabus 2. “’Bad faith’ denotes a dishonest purpose, moral obliquity, conscious

wrongdoing, breach of a known duty through some ulterior motive, or ill will, and

embraces actual intent to mislead or deceive another.” Id. 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 a great probability that harm will result.”

Anderson v. Massillon, supra, at syllabus 3.

“Recklessness” is defined as “a perverse disregard of a known risk . . .

[that] requires something more than mere negligence. The actor must be

conscious that his conduct will in all probability result in injury.” Winkle at 204,

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citing O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574 at syllabus 3.

“Reckless conduct is characterized by the conscious disregard of or indifference

to a known or obvious risk of harm to another which is unreasonable under the

circumstances and substantially greater than negligent conduct.” Anderson v.

Massillon, supra, at syllabus 4. “[M]ere negligence is not converted into wanton

misconduct unless the evidence establishes a disposition to perversity on the

part of the tortfeasor.” Winkle at 204, quoting Rankin v. Cuyahoga Cty. Dept. of

Children and Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567.

John Beckner is immune from liability under O.R.C. 2744.03. Mr.

Beckner is an employee of a political subdivision. The decision of a political

subdivision to discipline or terminate an employee for violation of policy is a

governmental or proprietary function. Plaintiff is also unable to meet the

requirements contained within the exception found in R.C. 2744.03(A)(6)(b)

regarding malicious purpose, bad faith, or wanton or reckless manner. Plaintiff

makes no allegation of failure to act in a wanton or reckless manner, only in a

malicious or bad faith manner.

Plaintiff is unable to demonstrate that actions were taken due to malice,

which is demonstrated by the infliction of serious injury without excuse or

justification. Plaintiff admits to the removal of property from work and scrapping

the property for personal gain. Specific policy was in place and employees were

notified of the policy regarding scrapping and Plaintiff chose to ignore the policy.

The decision to terminate was justified based on County policy specifically

addressing this issue. Additionally, John Beckner was acting under orders to

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review the recordings, therefore he was not acting without excuse or justification

when he reviewed the tapes and discovered Plaintiff participating in activities in

violation of policy. Plaintiff has failed to allege any facts which support malice

and therefore fails to meet the exception to immunity for an employee of a

political subdivision.

Regarding bad faith, John Beckner’s purpose in reviewing the recording

was to follow the orders of his superiors. John Beckner was not breaching any

duty owed but was in fact performing the duty requested by his superiors. John

Beckner’s actions occurred in January, 2012, following the decision of the

Agency to install (or reactivate) cameras in the facilities in December, 2011. This

occurred at a time when John Beckner was not the Plaintiff’s supervisor.

Additionally, any perceived actions having been taken as a result of a personal

business deal is not relevant. As noted, John Beckner was instructed to review

security footage and did not make the decision to install and review footage. The

personal business deal, which occurred in 2009, is not relevant in time to actions

taken in December 2011 and January 2012 at the direction of persons other than

John Beckner.

Plaintiff was caught on camera removing property of the County for

personal purposes and in violation of policy. As a result of those actions, Plaintiff

was terminated. There is no allegation that John Beckner in some way

manipulated the documented footage of the theft. Any alleged malicious

thoughts do not override the objective evidence. Stating merely that others were

doing the same thing does not absolve the Plaintiff. Plaintiff was caught on

11
camera and was terminated. If others had been caught on camera, they likely

would have been terminated as well (without having this occur, it is not possible

to be definitive without those employees being provided notice and opportunity to

be heard at a pre-disciplinary hearing).

John Beckner was not Plaintiff’s supervisor at the time of the investigation

or termination. Additionally, John Beckner did not make any recommendation for

termination and did not make the decision to terminate Plaintiff. Therefore, John

Beckner, as an employee of a political subdivision, is immune from liability

pursuant to R.C. 2744.03.

3. Action for wrongful discharge in violation of public policy against Defendant,

John Beckner, is not permitted as matter of law.

Plaintiff’s charge is not viable against John Beckner even if Plaintiff was

an at-will employee. The cases cited for this standard either involve an at-will

employee or, the issue of at-will status was not raised in the decisions cited.

These cases do not stand for the proposition that a cause of action exists for a

union employee.

For actions of wrongful discharge in violation of public policy for at-will

employees, individual supervisors are not liable as the employer, except under

certain circumstances. Pursuant to Arthur v. Armco Inc., an employee was

prohibited from pursuing a claim of wrongful discharge against individual

supervisors. 122 F.Supp.2d 876, 880 (S.D. Ohio 2000). The Arthur Court limited

the availability of the claim to the employer and upheld a dismissal against the

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supervisor. Id. An exception to this rule was then recognized by the Ohio Fifth

District in Armstrong v. Trans-Service Logistics, Inc. for violation of public policy

as related to the reporting of issues concerning the public health, and in Jenkins

v. Central Transport, Inc. in the area of worker safety. Armstrong, 2005-Ohio-

2723, ¶62 (5th Dist. 2005), Jenkins, 2010 WL 420027, *4 (N.D. Ohio 2010).

Under the case law making exceptions to the Arthur standard of no

supervisor liability, the courts still note that the supervisor must be acting as the

employer. The basis for permitting the inclusion of the supervisor as subject to

liability is to discourage decision makers from making improper discharge

decisions by making them think more thoroughly about the decision to terminate.

Armstrong, 2005-Ohio-2923, ¶59. “Obviously, not just any supervisor can be

liable for a wrongful termination. Only someone who ‘personally participates in

the tort’ of wrongful termination can be sued.” Jenkins, 2010 WL 420027, *5,

citing Armstrong at ¶60. The Jenkins court asks the “essential inquiry…[d]id the

defendant have some “control” over the firing of the plaintiff?” 2010 WL 420027,

*5.

In this instance, Plaintiff does not allege any issue of public or worker

safety to fit within the exceptions created by the courts. This action involves the

termination of the Plaintiff for violation of policy regarding the theft and scrapping

of County property. Additionally, John Beckner did not participate, or have

control, over the decision to terminate the Plaintiff. John Beckner was not

Plaintiff’s supervisor at the time of the investigation or termination. Additionally,

John Beckner did not make any recommendation to terminate the Plaintiff, or

13
acquiesce in the termination of Plaintiff. John Beckner could not have prevented

the termination of the Plaintiff, if he tried, due to there being objective video

evidence of Plaintiff engaging in the actions which resulted in his termination.

As John Beckner did not participate as an employer in the decisions to

terminate the Plaintiff, and there being no liability for individual supervisors in

wrongful termination suits based upon public policy, this action should be

dismissed against John Beckner as a matter of law.

4. No dispute of material fact exists and Defendants are entitled to dismissal

judgment as a matter of law.

If the Court should find that Plaintiff is permitted the cause of action of

wrongful discharge in violation of public policy, despite being a union employee,

Defendants move that there is no dispute of material fact and Defendants are

entitled to judgment as a matter of law. Plaintiff alleges a wrongful discharge in

violation of public policy but sufficient facts do not exist to support the cause of

action. An action for wrongful termination in violation of public policy for an at-will

employee requires the following:

1. That [a] 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).
4. The employer lacked overriding legitimate business justification
for the dismissal (the overriding justification element).

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Kulch v. Structural Fibers, Inc., 1997-Ohio-219, 78 Ohio St. 3d 134, 151, 677
N.E.2d 308, 321 (1997)

Plaintiff indicates, as part of his response to Defendants’ Motion to

Dismiss filed on August 30, 2013, that the public policy allegedly violated by

Defendants is the termination of an employee following their reporting of criminal

activity to the employer. Defendants have not disputed that Plaintiff, through

counsel, sent a letter to the County Commissioners on the day before he was

terminated. That letter was dated April 10, 2012. The investigation into the

criminal activity reported by Plaintiff on April 10, 2012 began however on August

3, 2011, as evidenced by the Montgomery County Sheriff’s Office report. The

investigation was initially motivated by the receipt of an anonymous letter.

Plaintiff’s actions were then called into question for actions video recorded on

December 23, 2011, December 27, 2011, January 2, 2012, and January 4, 2012.

A pre-disciplinary meeting was held on April 2, 2012 and the matter was

submitted for review by the Board of County Commissioners for their decision.

Plaintiff wishes to be absolved of his conduct by reporting criminal activity on the

eve of his termination despite being aware of an investigation as early as

January 20, 2012, when he was placed on administrative leave. Plaintiff does

not deny his violation of policy regarding the taking of county property and

scrapping for personal gain, merely that the decision to terminate was motivated

by his report of criminal activity, which is a report made eight months following

the start of an investigation and report to the Montgomery County Sheriff’s Office

by the County regarding the same alleged criminal activity.

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Additionally, by Plaintiff’s own admission regarding violation of policy, he

provides an overriding business justification for dismissal by the employer.

Employers are justified in terminating employees found to be stealing from the

employer.

CONCLUSION

Defendants maintain that no cause of action exists for wrongful

termination based upon public policy for union employees; that John Beckner has

immunity as a public employee; that no cause of action exists against John

Beckner as a supervisor in an action for wrongful termination; and that no dispute

of material fact exists. Therefore, Defendants are entitled to dismissal judgment

as a matter of law and ask this Court to grant them summary judgment on the

sole count.

Respectfully submitted,

MATHIAS H. HECK, JR.
PROSECUTING ATTORNEY

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By: s/ Jonathan A. Ketter
Jonathan A. Ketter, #0084064
Assistant Prosecuting Attorney
Montgomery County Prosecutor’s Office
301 West Third Street
P.O. Box 972
Dayton, Ohio 45422
Telephone: (937) 225-3499
Fax Number: (937) 225-4822
E-mail: ketterj@mcohio.org

Attorneys for Defendants, Montgomery
County Board of County Commissioners
and John Beckner

CERTIFICATE OF SERVICE

I hereby certify that on May 30, 2014, the foregoing document was served
on all partie

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Motion,Ex Parte: HARLEY SHEPHERD vs MONTGOMERY COUNTY DEPT ENVIRONMENTAL SERVICES

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