Preview
ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Tuesday, J uly 09, 2013 10:35:16 AM
CASE NUMBER: 2013 CV 01972 Docket ID: 18289013
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
37 Seminary Avenue
Dayton, Ohio 45403 Judge Adkins
Plaintiff,
vs.
MONTGOMERY COUNTY BOARD OF COMMISSIONERS
451 West Third Street
11" Floor
Dayton, Ohio 45422 AMENDED VERIFIED COMPLAINT FOR
WRONGFUL DISCHARGE WITH JURY
and DEMAND
JOHN BECKNER
2226 Renshaw Ave.
Dayton, Ohio 45439
Defendants.
I INTRODUCTION
1 This is an action for wrongful discharge in violation of the public policy of the state of
Ohio.
2. The majority of the events set forth in this Complaint occurred within Montgomery
County Ohio so this action is properly venued herein.
3 This court has subject matter jurisdiction of wrongful discharge claims arising out of
violations of the public policy of the state of Ohio.
4. Plaintiff Harley Shepherd is a resident of Montgomery County Ohio and until his
removal on April 11, 2012, had been employed by Defendant Montgomery County, Board of
Commissioners for more than fourteen years, most recently as a Facilities and Engineering
Maintenance Worker in the Department of Environmental Services, Division of Solid Waste.
5 Defendant Montgomery County Board of Commissioners is Plaintiff's employer.
6 Defendant John Beckner is Plaintiff's former supervisor and an “employer” as defined by
Section 4112.01 et seq of the Ohio Revised Code. At all times material hereto Beckner was the
second shift supervisor at the North Yard and he recommended and supported Defendant Board
of County Commissioners’ decision to terminate Plaintiff.
Ze Plaintiff was represented during his employment by the Dayton Public Service of Ohio
Union during his employment with Montgomery County, Board of Commissioners but upon his
removal said union failed and refused to proceed to arbitration, as set forth in the parties’
collective bargaining agreement, leaving Plaintiff without a remedy to contest his wrongful
discharge other than through an action with this Court.
Il. BACKGROUND FACTS
8 Plaintiff restates, and incorporates the allegations of paragraphs 1-7 and the Complaint.
9 Plaintiff Harley Shepherd began his employment with Defendant Montgomery County
Board of Commissioners approximately fourteen (14) years ago. He was a maintenance worker
and worked for the Division of Solid Waste at both the North Yard (8569 Webster Street) for the
two years preceding his discharge and the South Yard (2550 Sandridge Drive) for the prior
twelve years.
10. On or about January 20, 2012 Plaintiff was placed on paid administrative leave pending a
theft investigation in respect to the North Yard.
IT; While Plaintiff was working at the North Yard with ten other employees, which number
included two supervisors, each and every employee, including the two supervisors, (one of which
was Defendant Beckman) removed items brought to the yard by residents for purposes of
recycling. These employees sold these items to private recycling centers, such as First Street
Recycling and retained the sale proceeds.
12. The practice referenced in the preceding paragraph was ongoing for many years. From
time to time Defendant Montgomery County’s top management would issue communications to
the employees directing that this practice must stop. However, the onsite supervisors (Steve
Hanagen and Defendant John Beckner) at the North Yard allowed the practice to continue and
since they also continued to remove items themselves, the directives from top management were
not complied with.
13. This same practice existed at the South Yard located at 2550 Sandridge Drive and was
allowed to continue also through the involvement of management.
14, Plaintiff, since being placed on administrative leave on January 20, 2012 has continually
advised management officials and his union representatives about these practices, but no one has
responded to his communications. On April 10, 2012 Plaintiff through his counsel, sent the
attached letter (Exhibit A) to the then Montgomery County Board of Commissioners advising
them of the unlawful actions being predicated at the North and South yards. Incredibly Plaintiff
did not receive a response from the Commissioners. Instead the Board opted to terminate
Plaintiff.
15. Plaintiff is the only employee who has been singled out for termination at either the
South or North Yards. To the best of Plaintiffs knowledge, none of the supervisors or managers
involved in the removal of items from the yards have been disciplined.
16. Plaintiff believes he was singled out for disparate treatment because a former supervisor
of his, Defendant John Beckner became upset over a personal business deal with Plaintiff and
because of Plaintiff's statements referenced at paragraph 14 herein. At the time of Plaintiff's
termination, Defendant Beckner was serving as Defendant’s night supervisor at the North Yard.
17. One day after delivering Exhibit A to the Montgomery County Board of Commissioners,
Plaintiff was terminated. Plaintiff has also been threatened by representations of Defendant
Montgomery County Board of Commissioners those criminal charges would be brought against
him.
18. Bob Downing, the Manager of both the North and South Yards, required Supervisor
Steve Hanagen to take aluminum to a scrap yard and give Downing the proceeds. Hanagen took
wire and scrap from the yards and sold it to First Street Recycling.
19. Dan Graeter, Assistant Manager for both the North and South Yards was aware of the
practices described herein and took no steps to stop the employees from removing items from the
yards. Dave Cover, another supervisor at the South Yard and Dan Fritz, supervisor of the Garage
(at the South Yard) also was aware of the above described practices and took no steps to prevent
them.
20. Defendant John Beckner required Plaintiff to take aluminum signs and provide Beckner
with the proceeds therefrom. Beckner also sold scrap items to Second Time Around on Brown
Street and required employees to pay him in cash for stolen items.
21. The remaining employees at both yards routinely remove and still remove copper, air
conditioning coils, batteries, scrap metal and wire to recycling centers such as First Street
Recycling, where they are sold and the proceeds retained by the employees.
22. Plaintiff also advised Defendant Montgomery County Board of Commissioners of
methods it could utilize to prevent future acts of removal of items from the North and South
Yards. Instead Defendants elected to terminate Plaintiff's employment.
23. As a result of Defendants’ unlawful actions Plaintiff has been damaged.
Ti. CAUSES OF ACTION
A. WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY
24. Plaintiff restates, reavers and incorporates the allegations of paragraphs 1-23 of the
Complaint.
25. Terminating Plaintiff for the reasons set forth above violates the public policy of the state
of Ohio as set forth at Ohio Revised Code Sections 2921.05, 2921.41, 2921.42, 2921.43 and
2921.45. Defendant Beckner supported and recommended the Defendants Commissioners
actions in terminating Plaintiff, even though he knew that Plaintiff was being singled out and
further due to his personal involvement as alleged above.
26. Defendants unlawful conduct also violates the public policy of the state of Ohio as seen
in the common laws which encourages and supports the reporting of crimes and consistent
treatment and applications of criminal laws.
27s As a result of Defendants’ actions Plaintiff has been damaged to the extent of lost pay
and benefits and other compensatory damages.
WHEREFORE, Plaintiff Harley Shepherd demands judgment against Defendants
Montgomery County Board of Commissioners and John Beckner as follows:
1 For compensatory damages in excess of $100,000;
2, For punitive damages in excess of $100,000;
For costs and attorney fees;
For prejudgment and post judgment interest at the statutory rate; and
For such other legal and equitable relief as this Court finds Plaintiff is entitled to.
Respectfully submitted,
DUWEL LAW
4s/ 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
VERIFICATION
STATE OF OHIO )
) SS:
COUNTY OF MONTGOMERY )
Harley Shepherd, Plaintiff being first duly sworn, states and avers that he has reviewed
the allegations of the foregoing Complaint and that the allegations herein are true and accurate to
the best of his knowledge.
Harley Shepherd
Sworn and subscribed before me a Notary Public this 74 day of July 2013.
Ll
NO — State of Ohio
BAVIB M. BUWweEL Notery Publio
be of Ohio
My. Commission Has No Expiration Do:
JURY DEMAND
Plaintiff hereby requests a trial by jury as to all issues ripe for such determination.
4s/ David M. Duwel
David M. Duwel
Preview
ELECTRONICALLY FILED COURT OF COMMON PLEAS Tuesday, J uly 09, 2013 10:35:16 AM CASE NUMBER: 2013 CV 01972 Docket ID: 18289013 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 37 Seminary Avenue Dayton, Ohio 45403 Judge Adkins Plaintiff, vs. MONTGOMERY COUNTY BOARD OF COMMISSIONERS 451 West Third Street 11" Floor Dayton, Ohio 45422 AMENDED VERIFIED COMPLAINT FOR WRONGFUL DISCHARGE WITH JURY and DEMAND JOHN BECKNER 2226 Renshaw Ave. Dayton, Ohio 45439 Defendants. I INTRODUCTION 1 This is an action for wrongful discharge in violation of the public policy of the state of Ohio. 2. The majority of the events set forth in this Complaint occurred within Montgomery County Ohio so this action is properly venued herein. 3 This court has subject matter jurisdiction of wrongful discharge claims arising out of violations of the public policy of the state of Ohio. 4. Plaintiff Harley Shepherd is a resident of Montgomery County Ohio and until his removal on April 11, 2012, had been employed by Defendant Montgomery County, Board of Commissioners for more than fourteen years, most recently as a Facilities and Engineering Maintenance Worker in the Department of Environmental Services, Division of Solid Waste. 5 Defendant Montgomery County Board of Commissioners is Plaintiff's employer. 6 Defendant John Beckner is Plaintiff's former supervisor and an “employer” as defined by Section 4112.01 et seq of the Ohio Revised Code. At all times material hereto Beckner was the second shift supervisor at the North Yard and he recommended and supported Defendant Board of County Commissioners’ decision to terminate Plaintiff. Ze Plaintiff was represented during his employment by the Dayton Public Service of Ohio Union during his employment with Montgomery County, Board of Commissioners but upon his removal said union failed and refused to proceed to arbitration, as set forth in the parties’ collective bargaining agreement, leaving Plaintiff without a remedy to contest his wrongful discharge other than through an action with this Court. Il. BACKGROUND FACTS 8 Plaintiff restates, and incorporates the allegations of paragraphs 1-7 and the Complaint. 9 Plaintiff Harley Shepherd began his employment with Defendant Montgomery County Board of Commissioners approximately fourteen (14) years ago. He was a maintenance worker and worked for the Division of Solid Waste at both the North Yard (8569 Webster Street) for the two years preceding his discharge and the South Yard (2550 Sandridge Drive) for the prior twelve years. 10. On or about January 20, 2012 Plaintiff was placed on paid administrative leave pending a theft investigation in respect to the North Yard. IT; While Plaintiff was working at the North Yard with ten other employees, which number included two supervisors, each and every employee, including the two supervisors, (one of which was Defendant Beckman) removed items brought to the yard by residents for purposes of recycling. These employees sold these items to private recycling centers, such as First Street Recycling and retained the sale proceeds. 12. The practice referenced in the preceding paragraph was ongoing for many years. From time to time Defendant Montgomery County’s top management would issue communications to the employees directing that this practice must stop. However, the onsite supervisors (Steve Hanagen and Defendant John Beckner) at the North Yard allowed the practice to continue and since they also continued to remove items themselves, the directives from top management were not complied with. 13. This same practice existed at the South Yard located at 2550 Sandridge Drive and was allowed to continue also through the involvement of management. 14, Plaintiff, since being placed on administrative leave on January 20, 2012 has continually advised management officials and his union representatives about these practices, but no one has responded to his communications. On April 10, 2012 Plaintiff through his counsel, sent the attached letter (Exhibit A) to the then Montgomery County Board of Commissioners advising them of the unlawful actions being predicated at the North and South yards. Incredibly Plaintiff did not receive a response from the Commissioners. Instead the Board opted to terminate Plaintiff. 15. Plaintiff is the only employee who has been singled out for termination at either the South or North Yards. To the best of Plaintiffs knowledge, none of the supervisors or managers involved in the removal of items from the yards have been disciplined. 16. Plaintiff believes he was singled out for disparate treatment because a former supervisor of his, Defendant John Beckner became upset over a personal business deal with Plaintiff and because of Plaintiff's statements referenced at paragraph 14 herein. At the time of Plaintiff's termination, Defendant Beckner was serving as Defendant’s night supervisor at the North Yard. 17. One day after delivering Exhibit A to the Montgomery County Board of Commissioners, Plaintiff was terminated. Plaintiff has also been threatened by representations of Defendant Montgomery County Board of Commissioners those criminal charges would be brought against him. 18. Bob Downing, the Manager of both the North and South Yards, required Supervisor Steve Hanagen to take aluminum to a scrap yard and give Downing the proceeds. Hanagen took wire and scrap from the yards and sold it to First Street Recycling. 19. Dan Graeter, Assistant Manager for both the North and South Yards was aware of the practices described herein and took no steps to stop the employees from removing items from the yards. Dave Cover, another supervisor at the South Yard and Dan Fritz, supervisor of the Garage (at the South Yard) also was aware of the above described practices and took no steps to prevent them. 20. Defendant John Beckner required Plaintiff to take aluminum signs and provide Beckner with the proceeds therefrom. Beckner also sold scrap items to Second Time Around on Brown Street and required employees to pay him in cash for stolen items. 21. The remaining employees at both yards routinely remove and still remove copper, air conditioning coils, batteries, scrap metal and wire to recycling centers such as First Street Recycling, where they are sold and the proceeds retained by the employees. 22. Plaintiff also advised Defendant Montgomery County Board of Commissioners of methods it could utilize to prevent future acts of removal of items from the North and South Yards. Instead Defendants elected to terminate Plaintiff's employment. 23. As a result of Defendants’ unlawful actions Plaintiff has been damaged. Ti. CAUSES OF ACTION A. WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY 24. Plaintiff restates, reavers and incorporates the allegations of paragraphs 1-23 of the Complaint. 25. Terminating Plaintiff for the reasons set forth above violates the public policy of the state of Ohio as set forth at Ohio Revised Code Sections 2921.05, 2921.41, 2921.42, 2921.43 and 2921.45. Defendant Beckner supported and recommended the Defendants Commissioners actions in terminating Plaintiff, even though he knew that Plaintiff was being singled out and further due to his personal involvement as alleged above. 26. Defendants unlawful conduct also violates the public policy of the state of Ohio as seen in the common laws which encourages and supports the reporting of crimes and consistent treatment and applications of criminal laws. 27s As a result of Defendants’ actions Plaintiff has been damaged to the extent of lost pay and benefits and other compensatory damages. WHEREFORE, Plaintiff Harley Shepherd demands judgment against Defendants Montgomery County Board of Commissioners and John Beckner as follows: 1 For compensatory damages in excess of $100,000; 2, For punitive damages in excess of $100,000; For costs and attorney fees; For prejudgment and post judgment interest at the statutory rate; and For such other legal and equitable relief as this Court finds Plaintiff is entitled to. Respectfully submitted, DUWEL LAW 4s/ 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 VERIFICATION STATE OF OHIO ) ) SS: COUNTY OF MONTGOMERY ) Harley Shepherd, Plaintiff being first duly sworn, states and avers that he has reviewed the allegations of the foregoing Complaint and that the allegations herein are true and accurate to the best of his knowledge. Harley Shepherd Sworn and subscribed before me a Notary Public this 74 day of July 2013. Ll NO — State of Ohio BAVIB M. BUWweEL Notery Publio be of Ohio My. Commission Has No Expiration Do: JURY DEMAND Plaintiff hereby requests a trial by jury as to all issues ripe for such determination. 4s/ David M. Duwel David M. Duwel