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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Tuesday, August 06, 2013 1:13:42 PM
CASE NUMBER: 2013 CV 01972 Docket ID: 18365441
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CRIMINAL DIVISION
HARLEY SHEPHERD, : CASE NO. 2013 CV 01972
Plaintiff, : (JUDGE DENNIS J. ADKINS)
vs. :
MONTGOMERY COUNTY BOARD OF :
COUNTY COMMISSIONERS, et al., MOTION OF DEFENDANTS
TO DISMISS
:
Defendants.
____________________________________________________________________
Now comes the Defendants, Montgomery County Board of County
Commissioners and John Beckner, by and through counsel, and move this Court to
dismiss the above-captioned case for failure to state a claim upon which relief can be
granted pursuant to Ohio Civil Rules of Procedure 12(B)(6), lack of subject matter
jurisdiction due to failing to exhaust administrative remedy pursuant to Ohio Civil Rules
of Procedure 12(B)(1), and the attached memorandum.
Respectfully submitted,
MATHIAS H. HECK, JR.
PROSECUTING ATTORNEY
By: s/Todd M. Ahearn
Todd M. Ahearn #0069674
Assistant Prosecuting Attorney
301 West Third Street, P.O. Box 972
Dayton, Ohio 45422
Phone: (937) 496-6870
Fax: (937) 225-4822
Email: ahearnt@mcohio.org
Attorney for Defendants Montgomery
County Board of County Commissioners
and John Beckner
MEMORANDUM
1. Plaintiff fails to state a claim upon which relief can be granted.
Defendants move to dismiss the Amended Complaint filed by Plaintiff on July 9,
2013 due to a failure to state a claim upon which relief can be granted. Plaintiff alleges
a wrongful discharge in violation of public policy but fails to allege sufficient facts to
support the cause of action. An action for wrongful termination in violation of public
policy requires the following:
“1. That [a] clear public policy existed and was manifested in a state of
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). Himmel v. Ford Motor Co.,
342 F.3d 593, 598 (6th Cir.2003) (citing Collins v. Rizkana, 73 Ohio St.3d
65, 652 N.E.2d 653, 657–58 (1995)).”
Lawrence v. Dixon Ticonderoga Co., 305 F. Supp. 2d 806, 811 (N.D. Ohio 2004).
Plaintiff fails to allege facts that demonstrate that Defendants’ actions were motivated by
conduct related to public policy. Plaintiff states that he was placed on paid
administrative leave pending a theft investigation. [Amended Complaint at ¶10.] In his
pleading, Plaintiff acknowledged and admitted to taking items from the employer and
selling them for his own gain. [Amended Complaint at ¶11.] This action of theft, which
Plaintiff admits to, was without employer approval or authority as evidenced through top
2
management communications. [Amended Complaint at ¶12.] Plaintiff also indicates
that “since” the time the investigation was started, Plaintiff then began reporting that
others were stealing from the employer as well. [Amended Complaint at ¶14.]
Plaintiff fails to allege any facts regarding Defendants’ actions as being motivated
by conduct relating to public policy. An investigation into Plaintiff’s actions had already
been initiated, prior to Plaintiff indicating he had made reports. The Plaintiff’s only
statement regarding motivation indicates the Plaintiff felt that a “personal business deal”
motivated the investigation and termination. [Amended Complaint at ¶16.] The
termination was not based upon any alleged conduct relating to public policy. Plaintiff
also fails to allege that there was not an overriding business justification for dismissal by
the employer in terminating an employee stealing from the employer.
Plaintiff is not eligible for protections as a whistleblower as he fails to allege that
he has complied with the requirements under R.C. 4113.52.
R.C. 4113.52(A)(1) protects an employee for reporting certain
information to outside authorities only ifthe following requirements
have first been satisfied: (1) the employee provided the required
oral notification to the employee's supervisor or other responsible
officer of the employer, (2) the employee filed a written report with
the supervisor or other responsible officer, and (3) the employer
failed to correct the violation or to make a reasonable and good
faith effort to correct the violation. Further, R.C. 4113.52(A)(1)(a)
sets forth the sole acceptable manner in which the employee may
“blow the whistle” to outside authorities. Specifically, the employee
may file a written report that provides sufficient detail to identify and
describe the violation with the proper prosecuting authority or other
appropriate official or agency with regulatory *249 authority over the
employer and the industry, trade or business in which the employer
is engaged. An employee who fails to follow the specific
requirements of the statute is not a protected whistleblower and,
accordingly, may not bring a wrongful discharge action pursuant to
R.C. 4113.52.
3
Contreras v. Ferro Corp., 73 Ohio St. 3d 244, 246-49, 652 N.E.2d 940, 942-44 (1995).
Plaintiff fails to allege compliance with the requirements of R.C. §4113.52.
Plaintiff fails to allege facts supporting a claim of wrongful discharge based in
common law or statutorily. As such, Defendants move for the Amended Complaint to
be dismissed pursuant to pursuant to Ohio Civil Rules of Procedure 12(B)(6).
2. The Court lacks subject matter jurisdiction due to Plaintiff failing to
exhaust administrative remedies available pursuant to his collective bargaining
agreement.
During his employment, Plaintiff was a member of the Dayton Public Service of
Ohio Union. [Amended Complaint at ¶7.] Plaintiff acknowledges that there was an
arbitration provision applied to his employment which was not followed. [Amended
Complaint at ¶7.] Plaintiff, therefore, failed to exhaust administrative remedies available
to him pursuant to the collective bargaining agreement.
The Supreme Court has held that employees must exhaust their
remedies under any applicable collective bargaining agreement
before attempting to bring suit. Republic Steel Corp. v. Maddox,
379 U.S. 650, 652–53, 85 S.Ct. 614, 13 L.Ed.2d 580, (1965). See
also DelCostello v. Intern. Broth. of Teamsters, 462 U.S. 151, 164–
65, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). This is based on the
policy favoring private resolution of labor disputes.
Lawrence v. Dixon Ticonderoga Co., 305 F. Supp. 2d 806, 814 (N.D. Ohio 2004).
Collective bargaining actions are provided for under the Ohio Revised Code Chapter
4117. Ohio Revised Code §4117.11(B) states, “[i]tis an unfair labor practice for an
employee organization, its agents, or representatives, or public employees to… (6) Fail
to fairly represent all public employees in a bargaining unit.” Ohio Rev. Code §
4
4117.11(B). The remedy for an alleged unfair labor practice against the union is with
the state employment relations board. Ohio Rev. Code §4117.12(A).
Plaintiff alleges that filing of the current action was the Plaintiff’s only remedy but
fails to address that the proper exclusive administrative remedy was arbitration, and
failure of the union to exhaust that remedy was a matter within the jurisdiction of the
state employment relations board. See State ex rel. Ramsdell v. Washington Local
Sch. Bd., 52 Ohio App. 3d 4, 556 N.E.2d 197 (1988).
Due to Plaintiff’s failure to exhaust administrative remedies available to him
through the collective bargaining agreement, Defendants move for the Amended
Complaint be dismissed for lack of subject matter jurisdiction, pursuant to Ohio Civil
Rules of Procedure 12(B)(1).
CONCLUSION
For the reasons set forth above, Defendants, Montgomery County Board of
County Commissioners and John Beckner, submit that Plaintiff has failed to state a
claim upon which relief can be granted and that the Court lacks subject matter
jurisdiction due to Plaintiff’s failure to exhaust administrative remedies, and as such,
pursuant to Ohio Civil Rules of Procedures 12(B)(6) and 12(B)(1), the Amended
Complaint should be dismissed with prejudice.
5
Respectfully submitted,
MATHIAS H. HECK, JR.
PROSECUTING ATTORNEY
By: s/Todd M. Ahearn
Todd M. Ahearn #0069674
Assistant Prosecuting Attorney
301 West Third Street, P.O. Box 972
Dayton, Ohio 45422
Phone: (937) 496-6870
Fax: (937)225-4822
Email: ahearnt@mcohio.org
Attorney for Defendants Montgomery
County Board of County Commissioners
and John Beckner
CERTIFICATE OF SERVICE
I hereby certify that on August 6, 2013, the foregoing document was served on all
parties or their counsel of record through the Montgomery County Electronic Filing
System, if they are registered users or, if they are not, by placing a true and correct
copy in the United States mail, postage prepaid, to their address of record.
David M. Duwel
130 W. Second St., Suite 2101
Dayton, Ohio 45402
Counsel for Plaintiff
s/Todd M. Ahearn
Todd M. Ahearn, #0069674
Assistant Prosecuting Attorney
6
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ELECTRONICALLY FILED COURT OF COMMON PLEAS Tuesday, August 06, 2013 1:13:42 PM CASE NUMBER: 2013 CV 01972 Docket ID: 18365441 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CRIMINAL DIVISION HARLEY SHEPHERD, : CASE NO. 2013 CV 01972 Plaintiff, : (JUDGE DENNIS J. ADKINS) vs. : MONTGOMERY COUNTY BOARD OF : COUNTY COMMISSIONERS, et al., MOTION OF DEFENDANTS TO DISMISS : Defendants. ____________________________________________________________________ Now comes the Defendants, Montgomery County Board of County Commissioners and John Beckner, by and through counsel, and move this Court to dismiss the above-captioned case for failure to state a claim upon which relief can be granted pursuant to Ohio Civil Rules of Procedure 12(B)(6), lack of subject matter jurisdiction due to failing to exhaust administrative remedy pursuant to Ohio Civil Rules of Procedure 12(B)(1), and the attached memorandum. Respectfully submitted, MATHIAS H. HECK, JR. PROSECUTING ATTORNEY By: s/Todd M. Ahearn Todd M. Ahearn #0069674 Assistant Prosecuting Attorney 301 West Third Street, P.O. Box 972 Dayton, Ohio 45422 Phone: (937) 496-6870 Fax: (937) 225-4822 Email: ahearnt@mcohio.org Attorney for Defendants Montgomery County Board of County Commissioners and John Beckner MEMORANDUM 1. Plaintiff fails to state a claim upon which relief can be granted. Defendants move to dismiss the Amended Complaint filed by Plaintiff on July 9, 2013 due to a failure to state a claim upon which relief can be granted. Plaintiff alleges a wrongful discharge in violation of public policy but fails to allege sufficient facts to support the cause of action. An action for wrongful termination in violation of public policy requires the following: “1. That [a] clear public policy existed and was manifested in a state of 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). Himmel v. Ford Motor Co., 342 F.3d 593, 598 (6th Cir.2003) (citing Collins v. Rizkana, 73 Ohio St.3d 65, 652 N.E.2d 653, 657–58 (1995)).” Lawrence v. Dixon Ticonderoga Co., 305 F. Supp. 2d 806, 811 (N.D. Ohio 2004). Plaintiff fails to allege facts that demonstrate that Defendants’ actions were motivated by conduct related to public policy. Plaintiff states that he was placed on paid administrative leave pending a theft investigation. [Amended Complaint at ¶10.] In his pleading, Plaintiff acknowledged and admitted to taking items from the employer and selling them for his own gain. [Amended Complaint at ¶11.] This action of theft, which Plaintiff admits to, was without employer approval or authority as evidenced through top 2 management communications. [Amended Complaint at ¶12.] Plaintiff also indicates that “since” the time the investigation was started, Plaintiff then began reporting that others were stealing from the employer as well. [Amended Complaint at ¶14.] Plaintiff fails to allege any facts regarding Defendants’ actions as being motivated by conduct relating to public policy. An investigation into Plaintiff’s actions had already been initiated, prior to Plaintiff indicating he had made reports. The Plaintiff’s only statement regarding motivation indicates the Plaintiff felt that a “personal business deal” motivated the investigation and termination. [Amended Complaint at ¶16.] The termination was not based upon any alleged conduct relating to public policy. Plaintiff also fails to allege that there was not an overriding business justification for dismissal by the employer in terminating an employee stealing from the employer. Plaintiff is not eligible for protections as a whistleblower as he fails to allege that he has complied with the requirements under R.C. 4113.52. R.C. 4113.52(A)(1) protects an employee for reporting certain information to outside authorities only ifthe following requirements have first been satisfied: (1) the employee provided the required oral notification to the employee's supervisor or other responsible officer of the employer, (2) the employee filed a written report with the supervisor or other responsible officer, and (3) the employer failed to correct the violation or to make a reasonable and good faith effort to correct the violation. Further, R.C. 4113.52(A)(1)(a) sets forth the sole acceptable manner in which the employee may “blow the whistle” to outside authorities. Specifically, the employee may file a written report that provides sufficient detail to identify and describe the violation with the proper prosecuting authority or other appropriate official or agency with regulatory *249 authority over the employer and the industry, trade or business in which the employer is engaged. An employee who fails to follow the specific requirements of the statute is not a protected whistleblower and, accordingly, may not bring a wrongful discharge action pursuant to R.C. 4113.52. 3 Contreras v. Ferro Corp., 73 Ohio St. 3d 244, 246-49, 652 N.E.2d 940, 942-44 (1995). Plaintiff fails to allege compliance with the requirements of R.C. §4113.52. Plaintiff fails to allege facts supporting a claim of wrongful discharge based in common law or statutorily. As such, Defendants move for the Amended Complaint to be dismissed pursuant to pursuant to Ohio Civil Rules of Procedure 12(B)(6). 2. The Court lacks subject matter jurisdiction due to Plaintiff failing to exhaust administrative remedies available pursuant to his collective bargaining agreement. During his employment, Plaintiff was a member of the Dayton Public Service of Ohio Union. [Amended Complaint at ¶7.] Plaintiff acknowledges that there was an arbitration provision applied to his employment which was not followed. [Amended Complaint at ¶7.] Plaintiff, therefore, failed to exhaust administrative remedies available to him pursuant to the collective bargaining agreement. The Supreme Court has held that employees must exhaust their remedies under any applicable collective bargaining agreement before attempting to bring suit. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652–53, 85 S.Ct. 614, 13 L.Ed.2d 580, (1965). See also DelCostello v. Intern. Broth. of Teamsters, 462 U.S. 151, 164– 65, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). This is based on the policy favoring private resolution of labor disputes. Lawrence v. Dixon Ticonderoga Co., 305 F. Supp. 2d 806, 814 (N.D. Ohio 2004). Collective bargaining actions are provided for under the Ohio Revised Code Chapter 4117. Ohio Revised Code §4117.11(B) states, “[i]tis an unfair labor practice for an employee organization, its agents, or representatives, or public employees to… (6) Fail to fairly represent all public employees in a bargaining unit.” Ohio Rev. Code § 4 4117.11(B). The remedy for an alleged unfair labor practice against the union is with the state employment relations board. Ohio Rev. Code §4117.12(A). Plaintiff alleges that filing of the current action was the Plaintiff’s only remedy but fails to address that the proper exclusive administrative remedy was arbitration, and failure of the union to exhaust that remedy was a matter within the jurisdiction of the state employment relations board. See State ex rel. Ramsdell v. Washington Local Sch. Bd., 52 Ohio App. 3d 4, 556 N.E.2d 197 (1988). Due to Plaintiff’s failure to exhaust administrative remedies available to him through the collective bargaining agreement, Defendants move for the Amended Complaint be dismissed for lack of subject matter jurisdiction, pursuant to Ohio Civil Rules of Procedure 12(B)(1). CONCLUSION For the reasons set forth above, Defendants, Montgomery County Board of County Commissioners and John Beckner, submit that Plaintiff has failed to state a claim upon which relief can be granted and that the Court lacks subject matter jurisdiction due to Plaintiff’s failure to exhaust administrative remedies, and as such, pursuant to Ohio Civil Rules of Procedures 12(B)(6) and 12(B)(1), the Amended Complaint should be dismissed with prejudice. 5 Respectfully submitted, MATHIAS H. HECK, JR. PROSECUTING ATTORNEY By: s/Todd M. Ahearn Todd M. Ahearn #0069674 Assistant Prosecuting Attorney 301 West Third Street, P.O. Box 972 Dayton, Ohio 45422 Phone: (937) 496-6870 Fax: (937)225-4822 Email: ahearnt@mcohio.org Attorney for Defendants Montgomery County Board of County Commissioners and John Beckner CERTIFICATE OF SERVICE I hereby certify that on August 6, 2013, the foregoing document was served on all parties or their counsel of record through the Montgomery County Electronic Filing System, if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record. David M. Duwel 130 W. Second St., Suite 2101 Dayton, Ohio 45402 Counsel for Plaintiff s/Todd M. Ahearn Todd M. Ahearn, #0069674 Assistant Prosecuting Attorney 6