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, August 30, 2013 3:48:41 PM
CASE NUMBER: 2013 CV 01972 Docket ID: 18431835
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
vs.
MONTGOMERY COUNTY DEPARTMENT PLAINTIFF’S RESPONSE TO
OF ENVIRONMENTAL SERVICES, ef al. DEFENDANTS MOTION TO
DISMISS
Defendants.
Defendants’ recently filed Motion to Dismiss represents one more attempt by Defendants
to avoid responsibility for their previous decision to terminate Plaintiff's employment and is not
well taken. Further Defendant’s arguments raise maters outside of the pleadings that cannot be
considered by the Court in ruling on the Motion to Dismiss.
Respectfully submitted,
DUWEL LAW
/s/ David M. Duwel
David M. Duwel (0029583)
130 W. Second Street, Suite 2101
Dayton, Ohio 45402
Phone: (937) 297-1154
Fax: (937) 297-1152
david@duwellaw.com
Attorney for Plaintiff
MEMORANDUM
Defendant’s second Motion to Dismiss filed herein on August 6, 2013 raises two new
arguments not included in Defendants first Motion to Dismiss filed on April 25, 2013.
PUBLIC POLICY CLAIM
The first argument is that Plaintiff's Amended Complaint fails to allege facts in regards to the
third element of an Ohio public policy claim-that the Plaintiffs dismissal was motivated by
conduct related to the public policy. This is not correct.
At paragraphs 14-17 of his Complaint and throughout his Complaint, Plaintiff clearly
articulates that Defendant Board of County Commissioners made the decision to terminate his
employment one day after he brought to its collective attention that numerous employees and
supervisors were engaged in criminal activity at both the North and South yards operated by the
Division of Solid Waste. Ohio public policy is clearly supported by action calculated to lead to
the reporting of crimes under Ohio Revised Code 29. Plaintiff cannot imagine a more text book
example of a public policy violation, that is, reporting criminal activity to an employer by the
employer’s employees and being terminated the very next day. Further, since Defendant Beckner
is an “employer” under Ohio law, and since he recommended Plaintiff's termination he stands in
the same shoes as Defendant Board of Commission.
As to Defendants’ arguments in respect to Ohio Revised Code Section 4113.52, Plaintiff
has not made a claim under that statute at this time.
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
The second portion of Defendants’ Motion to Dismiss is predicated on an argument that
Plaintiff has failed to exhaust administrative remedies available pursuant to his collective
bargaining agreement. This argument also fails. Initially, reference to the collective bargaining
agreement raises matters outside the pleadings and cannot be addressed in a Motion to Dismiss.
Secondly, Plaintiff has asserted that he has exhausted his remedies under the collective
bargaining agreement by filing a grievance and by his union failing to prosecute that grievance to
arbitration. While anything beyond what is alleged in the Complaint is not proper for a Motion to
Dismiss, this Court can likely take judicial notice that collective bargaining agreements do not
include provisions requiring employees who request the union to grieve a particular employer
decision, to file unfair labor practice charges to the state employment relations board when the
union fails to arbitrate the grievance.
Further, not every decision by a union to not prosecute a grievance to arbitration is an
unfair labor practice. Once again, these matters cannot be determined at this time by a Motion to
Dismiss. Finally, none of the cases cited by Plaintiff in their motion support Defendant’s
argument on this issue. There is no Ohio reported decision that requires an employee to file a
Section 4117.12 (A) Complaint before initiating litigation against his employer. Defendants are
attempting to improperly amend the parties’ collective bargaining agreement by imposing
additional restrictions/obligations which have not been negotiated. Of course this once again
raises matters outside the pleadings.
CONCLUSION
For all the reasons set forth above Defendants Second Motion to Dismiss should be
overruled and denied.
Respectfully submitted,
DUWEL LAW
/s/ David M. Duwel
David M. Duwel (0029583)
130 W. Second Street, Suite 2101
Dayton, Ohio 45402
Phone: (937) 297-1154
Fax: (937) 297-1152
david@duwellaw.com
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on this 29" day of August, 2013, the foregoing was filed
electronically. Notice of this filing will be sent to all parties by operation of the Court's CM/ECF
Parties may access the filing through the Court's system.
/s/ David M. Duwel
David M. Duwel (0029583)
Document Filed Date
August 30, 2013
Case Filing Date
March 28, 2013
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ELECTRONICALLY FILED COURT OF COMMON PLEAS Friday, August 30, 2013 3:48:41 PM CASE NUMBER: 2013 CV 01972 Docket ID: 18431835 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 vs. MONTGOMERY COUNTY DEPARTMENT PLAINTIFF’S RESPONSE TO OF ENVIRONMENTAL SERVICES, ef al. DEFENDANTS MOTION TO DISMISS Defendants. Defendants’ recently filed Motion to Dismiss represents one more attempt by Defendants to avoid responsibility for their previous decision to terminate Plaintiff's employment and is not well taken. Further Defendant’s arguments raise maters outside of the pleadings that cannot be considered by the Court in ruling on the Motion to Dismiss. Respectfully submitted, DUWEL LAW /s/ David M. Duwel David M. Duwel (0029583) 130 W. Second Street, Suite 2101 Dayton, Ohio 45402 Phone: (937) 297-1154 Fax: (937) 297-1152 david@duwellaw.com Attorney for Plaintiff MEMORANDUM Defendant’s second Motion to Dismiss filed herein on August 6, 2013 raises two new arguments not included in Defendants first Motion to Dismiss filed on April 25, 2013. PUBLIC POLICY CLAIM The first argument is that Plaintiff's Amended Complaint fails to allege facts in regards to the third element of an Ohio public policy claim-that the Plaintiffs dismissal was motivated by conduct related to the public policy. This is not correct. At paragraphs 14-17 of his Complaint and throughout his Complaint, Plaintiff clearly articulates that Defendant Board of County Commissioners made the decision to terminate his employment one day after he brought to its collective attention that numerous employees and supervisors were engaged in criminal activity at both the North and South yards operated by the Division of Solid Waste. Ohio public policy is clearly supported by action calculated to lead to the reporting of crimes under Ohio Revised Code 29. Plaintiff cannot imagine a more text book example of a public policy violation, that is, reporting criminal activity to an employer by the employer’s employees and being terminated the very next day. Further, since Defendant Beckner is an “employer” under Ohio law, and since he recommended Plaintiff's termination he stands in the same shoes as Defendant Board of Commission. As to Defendants’ arguments in respect to Ohio Revised Code Section 4113.52, Plaintiff has not made a claim under that statute at this time. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES The second portion of Defendants’ Motion to Dismiss is predicated on an argument that Plaintiff has failed to exhaust administrative remedies available pursuant to his collective bargaining agreement. This argument also fails. Initially, reference to the collective bargaining agreement raises matters outside the pleadings and cannot be addressed in a Motion to Dismiss. Secondly, Plaintiff has asserted that he has exhausted his remedies under the collective bargaining agreement by filing a grievance and by his union failing to prosecute that grievance to arbitration. While anything beyond what is alleged in the Complaint is not proper for a Motion to Dismiss, this Court can likely take judicial notice that collective bargaining agreements do not include provisions requiring employees who request the union to grieve a particular employer decision, to file unfair labor practice charges to the state employment relations board when the union fails to arbitrate the grievance. Further, not every decision by a union to not prosecute a grievance to arbitration is an unfair labor practice. Once again, these matters cannot be determined at this time by a Motion to Dismiss. Finally, none of the cases cited by Plaintiff in their motion support Defendant’s argument on this issue. There is no Ohio reported decision that requires an employee to file a Section 4117.12 (A) Complaint before initiating litigation against his employer. Defendants are attempting to improperly amend the parties’ collective bargaining agreement by imposing additional restrictions/obligations which have not been negotiated. Of course this once again raises matters outside the pleadings. CONCLUSION For all the reasons set forth above Defendants Second Motion to Dismiss should be overruled and denied. Respectfully submitted, DUWEL LAW /s/ David M. Duwel David M. Duwel (0029583) 130 W. Second Street, Suite 2101 Dayton, Ohio 45402 Phone: (937) 297-1154 Fax: (937) 297-1152 david@duwellaw.com Attorney for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on this 29" day of August, 2013, the foregoing was filed electronically. Notice of this filing will be sent to all parties by operation of the Court's CM/ECF Parties may access the filing through the Court's system. /s/ David M. Duwel David M. Duwel (0029583)