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Montgomery County Common Pleas Court
General Division
ELECTRONICALLY FILED
Redacted by Clerk of Court COURT OF COMMON PLEAS
Monday, October 28, 2013 10:16:08 AM
CASE NUMBER: 2013 CV 01972 Docket ID: 18583713
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHI
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION
HARLEY SHEPHERD, CASE NO.: 2013 CV 01972
Plaintiff(s), JUDGE DENNIS J. ADKINS
-vs-
MONTGOMERY COUNTY DEPT
ENVIRONMENTAL SERVICES et al, DECISION, ORDER, AND ENTRY
OVERRULING DEFENDANTS’ MOTION
Defendant(s). TO DISMISS.
This matter is before the Court on the Motion of Defendants to Dismiss filed by Montgomery County
Board of Commissioners and John Beckner (collectively, the “Defendants”) on August 6, 2013. On August
30, 2013, Harley Shepherd (“Plaintiff”) filed Plaintiff's Response to Defendants Motion to Dismiss. No
reply was filed. This matter is now properly before the Court and for the reasons contained herein the Court
OVERRULES the Defendants motion to dismiss.
I. Facts
The facts are those for the purposes of the instant motion to dismiss. On July 9, 2013, the Plaintiff
filed an Amended Verified Complaint for Wrongful Discharge with Jury Demand (“Complaint”), The
Plaintiff asserts that he was employed by Montgomery County for fourteen years, most recently as a
Fi
ities and Engineering Maintenance Worker in the Department of Environmental Services, Division of
Solid Waste. Complaint { 4. On January 20, 2012, the Plaintiff was placed on paid administrative leave
pending a theft investigation. Id. {| 10. The Plaintiff asserts that, while he was working in the North Yard,
every employee removed items brought to the yard by residents, sold the items to private recycling centers,
and retained the proceeds. Id. 11. The Plaintiff asserts that this practice went on for many years. Id. [ 12.
The Plaintiff asserts that he advised management officials and union representatives about these practice butdid not receive any communication. Id. § 14. On April 10, 2012, the Plaintiff's counsel sent a letter to the
Montgomery County Board of Commissioners advising them of the unlawful actions. Id. { 14. The Plaintiff
asserts that he was removed from his employment on April 11, 2012. Id. 4/4. The Plaintiff asserts that
during his employment he was represented by the Dayton Public Service of Ohio Union but that after his
removal the union “failed and refused” to proceed to arbitration per the parties’ collective bargaining
agreement. Id. [7. The Plaintiff claims that his only available remedy to contest his termination is through
this Court. Id. 7.
The Defendants assert that the Plaintiff's Complaint should be dismissed because he fails to allege
that no overriding business justification existed for his termination and that the Court lacks subject matter
jurisdiction. See Motion to Dismiss. The Defendants argue that the Plaintiff does not allege facts related to
the Defendants’ action being motivated by conduct related to public policy because the Plaintiff's actions
were already being investigated. Id. at 3. The Defendants asserts that the Plaintiff's only assertion regarding
motivation is that a “personal business deal” prompted the investigation and termination. Id. at 3. Further,
the Defendants assert that the Court lacks subject matter jurisdiction because the Plaintiff did not exhaust his
administrative remedies pursuant to the collective bargaining agreement. Id. at 4.
The Plaintiff first asserts that he articulates his public policy claim in paragraphs 14 to 17 of the
Complaint. Memorandum in Opposition at 2. The Plaintiff asserts that the public policy violation occurred
when he reported a crime to his employer and was terminated the next day. Id. at 2. The Plaintiff further
asserts that he cannot be required to file an unfair labor practice claim to the state unemployment relations
board after the union failed to arbitrate his grievance. Id. at 3. The Plaintiff claims that not every decision
by a union to not arbitrate a grievance is an unfair labor practice. Id. at 3.
II. Law and Analysis
1. Standard of Review
“A motion to dismiss for failure to state a claim upon which relief can be granted tests the
sufficiency of the complaint. (Internal citation omitted.) Thus, the movant may not rely on allegations or
evidence outside the complaint; such matters must be excluded, or the motion must be treated as a motion for
summary judgment. (Internal citations omitted.)” Volbers-Klarich vy. Middletown Management, Inc., 125
Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434 {] 11.
N“The factual allegations of the complaint and items properly incorporated therein must be accepted
as true. Furthermore, the plaintiff must be afforded all reasonable inferences possibly derived therefrom.
(Internal citation omitted.) It must appear beyond doubt that plaintiff can prove no set of facts entitling her
to relief. (Internal citations omitted.)” Id. at 497.
2. Analysis
The Court first finds that the Defendants’ first argument regarding the public policy claim is not well
taken. Civ.R. 8(A) provides, in relevant part, that “[a] pleading that sets forth a claim for relief ... shall
contain (1) a short and plain statement of the claim showing that the party is entitled to relief].]” Civ.R.
8(A). The Ohio Second District Court of Appeals has noted that “Generally, the Ohio Civil Rules require
‘notice pleading’ rather than “fact pleading.” (Internal citation omitted.) Notice pleadings merely require
that a claim concisely set forth those operative facts sufficient to give “fair notice of the nature of the action.”
(Internal citations omitted.).” Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013 Ohio 2767 { 18.
The Court finds that the Plaintiff has provided sufficient notice of his claim regarding public policy and will
not dismiss the Complaint on this basis.
Further, based on the evidence before the Court, the Court finds that the Plaintiff has not failed to
exhaust his administrative remedies. The Plaintiff asserts in the Complaint that the union refused to arbitrate
his grievance and that this is his only other viable remedy. The Defendants argue that the Plaintiff should
comply with the collective bargaining agreement and file a claim with the state employment relations board
regarding the union’s failure to arbitrate. The collective bargaining agreement is not before the Court as
evidence, even so, the Court is to look at the four corners of the Complaint. The Defendants’ argument is
premature and, therefore, the Defendants’ assertion that the Plaintiff must file a complaint with the state
employment relations board is not well taken.
III. Conclusion
Based on the foregoing, the Court OVERRULES the Motion of Defendants to Dismiss.
SO ORDERED:
JUDGE DENNIS J. ADKINSThis document is electronically filed by using the Clerk of Courts e-Filing system. The system will post a record of the
filing to the e-Filing account "Notifications" tab of the following case participants:
DAVID M DUWEL,
(937) 297-1154
Attorney for Plaintiff, Harley Shepherd
TODD M AHEARN
(937) 276-6567
Attorney for Defendant, Montgomery County Dept Environmental Services
Attorney for Defendant, John Beckner
Attorney for Defendant, Montgomery County Board Of Commissioners
Copies of this document were sent to all parties listed below by ordinary mail:
JULIE A DROESSLER
301 WEST THIRD STREET
P.O. BOX 972
DAYTON, OH 45422
(937) 225-3499
Attorney for Defendant, John Beckner
Bob Schmidt, Bailiff (937) 496-7951 schmidtr@montcourt.orgGeneral Divison
Montgomery County Common Pleas Court
41N. Perry Street, Dayton, Ohio 45422
Type: Decision
Case Number: 2013 CV 01972
Case Title: HARLEY SHEPHERD vs MONTGOMERY COUNTY DEPT
ENVIRONMENTAL SERVICES
So Ordered
(OD fo
Electronically signed by dadkins on 2:16:40 page 5 of 5
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Montgomery County Common Pleas Court General Division ELECTRONICALLY FILED Redacted by Clerk of Court COURT OF COMMON PLEAS Monday, October 28, 2013 10:16:08 AM CASE NUMBER: 2013 CV 01972 Docket ID: 18583713 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHI IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CIVIL DIVISION HARLEY SHEPHERD, CASE NO.: 2013 CV 01972 Plaintiff(s), JUDGE DENNIS J. ADKINS -vs- MONTGOMERY COUNTY DEPT ENVIRONMENTAL SERVICES et al, DECISION, ORDER, AND ENTRY OVERRULING DEFENDANTS’ MOTION Defendant(s). TO DISMISS. This matter is before the Court on the Motion of Defendants to Dismiss filed by Montgomery County Board of Commissioners and John Beckner (collectively, the “Defendants”) on August 6, 2013. On August 30, 2013, Harley Shepherd (“Plaintiff”) filed Plaintiff's Response to Defendants Motion to Dismiss. No reply was filed. This matter is now properly before the Court and for the reasons contained herein the Court OVERRULES the Defendants motion to dismiss. I. Facts The facts are those for the purposes of the instant motion to dismiss. On July 9, 2013, the Plaintiff filed an Amended Verified Complaint for Wrongful Discharge with Jury Demand (“Complaint”), The Plaintiff asserts that he was employed by Montgomery County for fourteen years, most recently as a Fi ities and Engineering Maintenance Worker in the Department of Environmental Services, Division of Solid Waste. Complaint { 4. On January 20, 2012, the Plaintiff was placed on paid administrative leave pending a theft investigation. Id. {| 10. The Plaintiff asserts that, while he was working in the North Yard, every employee removed items brought to the yard by residents, sold the items to private recycling centers, and retained the proceeds. Id. 11. The Plaintiff asserts that this practice went on for many years. Id. [ 12. The Plaintiff asserts that he advised management officials and union representatives about these practice butdid not receive any communication. Id. § 14. On April 10, 2012, the Plaintiff's counsel sent a letter to the Montgomery County Board of Commissioners advising them of the unlawful actions. Id. { 14. The Plaintiff asserts that he was removed from his employment on April 11, 2012. Id. 4/4. The Plaintiff asserts that during his employment he was represented by the Dayton Public Service of Ohio Union but that after his removal the union “failed and refused” to proceed to arbitration per the parties’ collective bargaining agreement. Id. [7. The Plaintiff claims that his only available remedy to contest his termination is through this Court. Id. 7. The Defendants assert that the Plaintiff's Complaint should be dismissed because he fails to allege that no overriding business justification existed for his termination and that the Court lacks subject matter jurisdiction. See Motion to Dismiss. The Defendants argue that the Plaintiff does not allege facts related to the Defendants’ action being motivated by conduct related to public policy because the Plaintiff's actions were already being investigated. Id. at 3. The Defendants asserts that the Plaintiff's only assertion regarding motivation is that a “personal business deal” prompted the investigation and termination. Id. at 3. Further, the Defendants assert that the Court lacks subject matter jurisdiction because the Plaintiff did not exhaust his administrative remedies pursuant to the collective bargaining agreement. Id. at 4. The Plaintiff first asserts that he articulates his public policy claim in paragraphs 14 to 17 of the Complaint. Memorandum in Opposition at 2. The Plaintiff asserts that the public policy violation occurred when he reported a crime to his employer and was terminated the next day. Id. at 2. The Plaintiff further asserts that he cannot be required to file an unfair labor practice claim to the state unemployment relations board after the union failed to arbitrate his grievance. Id. at 3. The Plaintiff claims that not every decision by a union to not arbitrate a grievance is an unfair labor practice. Id. at 3. II. Law and Analysis 1. Standard of Review “A motion to dismiss for failure to state a claim upon which relief can be granted tests the sufficiency of the complaint. (Internal citation omitted.) Thus, the movant may not rely on allegations or evidence outside the complaint; such matters must be excluded, or the motion must be treated as a motion for summary judgment. (Internal citations omitted.)” Volbers-Klarich vy. Middletown Management, Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434 {] 11. N“The factual allegations of the complaint and items properly incorporated therein must be accepted as true. Furthermore, the plaintiff must be afforded all reasonable inferences possibly derived therefrom. (Internal citation omitted.) It must appear beyond doubt that plaintiff can prove no set of facts entitling her to relief. (Internal citations omitted.)” Id. at 497. 2. Analysis The Court first finds that the Defendants’ first argument regarding the public policy claim is not well taken. Civ.R. 8(A) provides, in relevant part, that “[a] pleading that sets forth a claim for relief ... shall contain (1) a short and plain statement of the claim showing that the party is entitled to relief].]” Civ.R. 8(A). The Ohio Second District Court of Appeals has noted that “Generally, the Ohio Civil Rules require ‘notice pleading’ rather than “fact pleading.” (Internal citation omitted.) Notice pleadings merely require that a claim concisely set forth those operative facts sufficient to give “fair notice of the nature of the action.” (Internal citations omitted.).” Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013 Ohio 2767 { 18. The Court finds that the Plaintiff has provided sufficient notice of his claim regarding public policy and will not dismiss the Complaint on this basis. Further, based on the evidence before the Court, the Court finds that the Plaintiff has not failed to exhaust his administrative remedies. The Plaintiff asserts in the Complaint that the union refused to arbitrate his grievance and that this is his only other viable remedy. The Defendants argue that the Plaintiff should comply with the collective bargaining agreement and file a claim with the state employment relations board regarding the union’s failure to arbitrate. The collective bargaining agreement is not before the Court as evidence, even so, the Court is to look at the four corners of the Complaint. The Defendants’ argument is premature and, therefore, the Defendants’ assertion that the Plaintiff must file a complaint with the state employment relations board is not well taken. III. Conclusion Based on the foregoing, the Court OVERRULES the Motion of Defendants to Dismiss. SO ORDERED: JUDGE DENNIS J. ADKINSThis document is electronically filed by using the Clerk of Courts e-Filing system. The system will post a record of the filing to the e-Filing account "Notifications" tab of the following case participants: DAVID M DUWEL, (937) 297-1154 Attorney for Plaintiff, Harley Shepherd TODD M AHEARN (937) 276-6567 Attorney for Defendant, Montgomery County Dept Environmental Services Attorney for Defendant, John Beckner Attorney for Defendant, Montgomery County Board Of Commissioners Copies of this document were sent to all parties listed below by ordinary mail: JULIE A DROESSLER 301 WEST THIRD STREET P.O. BOX 972 DAYTON, OH 45422 (937) 225-3499 Attorney for Defendant, John Beckner Bob Schmidt, Bailiff (937) 496-7951 schmidtr@montcourt.orgGeneral Divison Montgomery County Common Pleas Court 41N. Perry Street, Dayton, Ohio 45422 Type: Decision Case Number: 2013 CV 01972 Case Title: HARLEY SHEPHERD vs MONTGOMERY COUNTY DEPT ENVIRONMENTAL SERVICES So Ordered (OD fo Electronically signed by dadkins on 2:16:40 page 5 of 5