Opinion
Case No. 3:01-CV-7577
November 22, 2002.
MEMORANDUM OPINION
This matter is before the Court on Defendant's motion for summary judgment (Doc. No. 29) and Plaintiff's motion for leave to amend the complaint (Doc. No. 36). Plaintiff has filed a memorandum in opposition to Defendant's motion for summary judgment (Doc. No. 34) to which Defendant has filed a reply (Doc. No. 46). Defendant has also filed a memorandum in opposition to Plaintiff's motion for leave to amend (Doc. No. 47).
The Court has jurisdiction to decide this matter pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1441(a). For the reasons stated below, Defendant's motion for summary judgment will be granted. Plaintiff's motion for leave to amend his complaint will be denied.
BACKGROUND
Plaintiff Jack Snay ("Snay") became an employee on August 14, 1964 at the Tiffin facility now owned by Defendant Ameriwood Industries ("Ameriwood"). At that time, the facility was owned by his father-in-law and was known as Tiffin Enterprise. Snay worked primarily in the insulation or foam department. In 1984, Tiffin Enterprise was sold to Rospatch, after which the insulation or foam department was sold and Snay switched to the saw department, over which he eventually became the supervisor. Then, in 1989, Snay also became the supervisor of the laminating department. He remained in this capacity until the last (7) seven months of his employment during which his supervisory responsibilities changed on more than one occasion.
On June 26, 2000, Snay and other department supervisors were called to a meeting attended by John Raney II, Senior Vice President of Operations for Ameriwood Industries, Ron Meyer, the General Manger of the Tiffin facility, Thomas Mathias, the Plant Manager and two supervisors from another Ameriwood facility. The purpose of the meeting was to address the productivity and efficiency shortfalls at the Tiffin facility. As part of the process for improving productivity and efficiency, all supervisors, including Snay, were required to sign a list of daily supervisor responsibilities. By July 2000, Mathias implemented another policy to improve facility operations requiring all supervisors to contact him by radio anytime they left their departments (the "call policy"). Snay acknowledges that Mathias informed him of the call policy, and that he did not follow it. He was terminated on July 21, 2000, for insubordination, due to his failure to follow the call policy. At the time of his termination, Snay, who was fifty-seven years (57) old, was the oldest and highest paid supervisor at the Tiffin facility and was replaced by Mr. Scott Halcomb who was only thirty-six (36) years old.
Snay then filed a complaint on October 10, 2001, in the Court of Common Pleas in Seneca County, Ohio. In Count I, Snay alleges that he was intentionally discriminatorily discharged due to his age in violation of O.R.C. § 4112.02(A) and (N). In Count II, Snay alleges that by its conduct in terminating him, and relating to his employment and terms of his employment, Ameriwood subjected him to the intentional infliction of emotional distress. Ameriwood subsequently removed the action to this Court and has moved for summary judgment on both counts. Snay has moved for leave to amend his complaint, seeking to dismiss Count II, and adding a new claim for wrongful discharge in violation of public policy.
DISCUSSION
A. SUMMARY JUDGMENT STANDARD
As an initial matter, the Court sets forth the relative burdens of the parties once a motion for summary judgment is made. Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 191 L.Ed.2d 265 (1986). Of course, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. at 2553. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2541, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).
Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
B. COUNT I — AGE DISCRIMINATION
Ameriwood moves for summary judgment with respect to Count I on the basis that (1) Snay's claim is barred by the applicable one-hundred eighty (180) day statute of limitations; and/or (2) he cannot demonstrate that the basis of his termination was either illegitimate or pre-textual. O.R.C. § 4112.02 provides in pertinent part:
It shall be an unlawful discriminatory practice:
(A)For any employer, because of the race, color, religion, sex, national origin, disability age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.
(N) An aggrieved individual may enforce the individual's rights relative to discrimination on the basis of age as provided for in this section by instituting a civil action, within one-hundred eighty days after the alleged unlawful discriminatory practice occurred, in any court with jurisdiction for any legal or equitable relief that will effectuate the individual's rights.
The Ohio legislature amended the statute of limitations under O.R.C. § 4112.02(A) and (N) from one-hundred eighty (180) days to two years as part of legislation referred to as the Tort Reform Act. The Supreme Court of Ohio, however, declared the Tort Reform Act to be unconstitutional in toto. State ex. rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062, 1102 (Ohio 1999). See also Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 515 (6th Cir. 2001); Ferraro v. The B.F. Goodrich Co., No. 01CA007887, 2002 Ohio App. LEXIS 4549, at *23 (Ohio Ct. App.9th Dist. Aug. 28, 2002). Snay's argues that as a result of Trial Lawyers, and the Ohio legislature's subsequent failure to specify a new statute of limitations, the six (6) year statute of limitations pursuant to O.R.C. § 2305.07 applies to the instant case.
The Court finds that the applicable statute of limitations is one-hundred eighty (180) days. In City of Middletown v. Ferguson, 495 N.E.2d 380, 388 (Ohio 1986) (quoting Norton v. Shelby County, 118 U.S. 425, 442 (1886)) the Supreme Court of Ohio stated: "An unconstitutional act is not a law; it confers no rights, it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." In addressing defendant's argument that plaintiff failed to bring his claim alleging age discrimination pursuant to O.R.C. § 4112.14, the Ziegler Court held that in light of Trial Lawyers, the statute of limitations was six-years, or that period of limitations "effective immediately prior to the enactment of the tort reform legislation." Ziegler, 249 F.3d at 515. Further, in Ferraro, the court noted that as result of Trial Lawyers, courts must "apply the law in effect before the unconstitutional efforts of the General Assembly." Ferraro, No. 01CA007887, 2002 Ohio App. LEXIS 4549, at *23 n. 4.
In the case sub judice, it is undisputed that Snay was terminated on July 21, 2000. Snay originally filed suit in the Common Pleas Court of Seneca County, Ohio on October 10, 2001, approximately fifteen (15) months later. As a result, Snay's age discrimination claim pursuant to O.R.C. § 4112.02(A) and (N) was not timely filed. Thus, Ameriwood's motion for summary judgment with respect to Count I is granted. C. COUNT II — INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The Court need not consider Ameriwood's other argument that Snay cannot show that the basis of his termination was either illegitimate or pre-textual.
Ameriwood moves for summary judgment with respect to Count II arguing that Snay fails to present evidence sufficient to establish any of the elements of the prima facie case. The elements necessary to establish a prima facie case are "(1) that the defendant intended to cause the plaintiff serious emotional distress, (2) that the defendant's conduct was extreme and outrageous, and (3) that the defendant's conduct was the proximate cause of plaintiff's serious emotional distress." Phung v. Waste Mgmt., Inc., 644 N.E.2d 286, 289 (Ohio 1994). See also Maxwell v. GTE Wireless Serv. Corp., 121 F. Supp.2d 649, 660 (N.D.Ohio. 2000); Miller v. Premier Indus. Corp., 737 N.E.2d 594, 603 (Ohio Ct.App.8th Dist. 2001). The Court also notes that Snay does not offer any opposition. In Guarino v. Brookfield Township Trs., 980 F.2d 399, 404 (6th Cir. 1992) the Sixth Circuit Court of Appeals stated:
Dozens of other panels, many speaking in unpublished prisoner appeals, have dealt with the circumstance of a dispositive motion in want of a response and have consistently assumed without specific comment that a court's reliance on the facts advanced by the movant is proper and sufficient.
The Guarino court rejected the argument that the district court must conduct its own review of the record to determine if genuine issues of material fact exist even though appellants offered no opposition at the time of the motion. Id.
The Court also notes that Snay seeks to dismiss his claim for the intentional infliction of emotional distress in the amended complaint accompanying its motion for leave to amend, which as discussed in detail below, the Court will deny.
In the instant case, the Court finds that Snay fails to establish a prima facie case for the intentional infliction of emotional distress. First, Snay fails to establish that Ameriwood intended to cause him serious emotional distress. He testified that Ameriwood's intent in terminating him was to set an example for the rest of its employees, not to upset him (Doc. No. 43, Snay Dep., pp. 258-59). Second, the circumstances surrounding the conduct of his termination cannot be characterized as extreme and outrageous. To be extreme and outrageous, Ameriwood's conduct must have been "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehouseman Helpers of Am., 453 N.E.2d 666, 671 (Ohio 1983). See also Hillman v. Safeco Ins. Co. of Am., 190 F. Supp.2d 1029, 1039 (N.D.Ohio. 2002). The mere discharge of an employee does not constitute outrageous conduct. Maxwell, 121 F. Supp.2d at 661. Snay's only allegation of misconduct on Ameriwood's part was his termination. In addition, Snay testified that at the time he was terminated, no one said anything rude or offensive, or treated him with disrespect (Doc. No. 43, Snay Dep., pp. 259-60).
Third, Snay cannot establish that Ameriwood's conduct was the proximate cause of serious emotional injury. The only emotional injuries asserted are that it knocked the steam out of him, caused a loss of self-esteem and pride, and made him feel lower than a rat (Doc. No. 43, Snay Dep., pp. 81, 84-85). Further, he did not seek any form of professional medical treatment subsequent to his termination (Doc. No. 43, Snay Dep., p. 85). Finally, Snay testified that he suffered emotional injuries as a result of his divorce and cannot distinguish these injuries from those allegedly suffered as a result of his termination (Doc. No. 43, Snay Dep., pp. 85-86). Thus, Ameriwood's motion for summary judgment with respect to Count II is granted.
D. MOTION FOR LEAVE TO AMEND THE COMPLAINT
Snay moves this Court for leave to amend his complaint to include a claim for wrongful discharge in violation of public policy for age discrimination based on the liberal policy underlying Fed.R.Civ.P. 15(a). The purpose of seeking to assert this new claim is to allow Snay's case to go forward should this Court find Ameriwood's statute of limitations argument to be well-taken because the statute of limitations for wrongful discharge actions is four years under O.R.C. § 2305.09(D). See Painter v. Graley, 616 N.E.2d 285, 291 (Ohio Ct.App.8th Dist. 1992); Leonardi v. Lawrence Indust., Inc., No. 72313, 1997 Ohio App. LEXIS 4014, at *10 (Ohio Ct.App.8th Dist. Sept. 4, 1997).
The principle underlying Fed.R.Civ.P. 15(a) is "that cases should be tried on their merits rather than the technicalities of pleadings." Tefft v. Seward, 689 F.2d 637, 639 (6th Cir. 1982). See also Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986).
Under Fed.R.Civ.P. 15(a), the trial court is vested with discretion in granting or denying an amendment. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). A trial court may consider a number of factors in making this determination. Those factors may include undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice, futility of the amendment, or the repeated failure to cure deficiencies by amendments previously allowed. Id. Additional factors may also include the need for additional discovery, strain on the court's docket, or the lack of prejudice as the issue is already known. Budd Co. v. Travelers Indem. Co., 820 F.2d 787, 792 (6th Cir. 1987). Delay alone is insufficient to deny the proposed amendment. Robinson v. Michigan Consol. Gas Co. Inc., 918 F.2d 579, 581 (6th Cir. 1990) (citations omitted).
However, where a party seeks leave to amend under Rule 15(a), "a party must act with due diligence if it intends to take advantage of the Rule's liberality." United States v. Midwest Suspension and Brake, 49 F.3d 1197, 1202 (6th Cir. 1995) (citing Troxel Mfg. Co. v. Schwinn Bicycle Co., 489 F.2d 968 (6th Cir. 1973), cert. denied, 416 U.S. 939, 94 S.Ct. 1942, 40 L.Ed.2d 290 (1974)). Moreover, Ameriwood argues that Snay's motion for leave to amend pursuant to Fed.R.Civ.P. 15(a) must be considered in light of Fed.R.Civ.P. 16(b). Fed.R.Civ.P. 16(b) provides in pertinent part:
Ameriwood also argues that Snay's motion for leave to amend should be denied as futile based on the same arguments proffered in its motion for summary judgment that Snay cannot prove that the basis of his termination was either illegitimate or pre-textual.
Except in categories of actions exempted by the district court rules as inappropriate, the district judge, or a magistrate judge when authorized by district court rule, shall, after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties and any unrepresented parties by a scheduling conference, telephone, mail or other suitable means, enter a scheduling order that limits the time
(1) to join other parties and to amend the pleadings;
(2) to file motions; and
(3) to complete discovery.
. . .
The order shall issue as soon as practicable but in any event within 90 days after the appearance of a defendant or within 120 days after the complaint has been served by the defendant. A schedule shall not be modified except upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge.
In Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002), the Sixth Circuit Court of Appeals (quoting Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001)) stated: "The primary measure of Rule 16's `good cause' standard is the moving party's diligence in attempting to meet the case management order's requirements." See also Lake Michigan Contractors, Inc. v. The Manitowoc Co., Inc., No. 1:00-CV-787, 2002 U.S. Dist. LEXIS 9547, at *17-20 (W.D.Mich. May 21, 2002). The Inge court also noted that another factor to consider is the possible prejudice to the party opposing the modification. Inge, 281 F.3d at 625.
In Inge, the Court of Appeals held that the district court had abused its discretion in denying the plaintiff leave to file a third amended complaint several months after the deadline in the case management order. Id. at 626. The Inge court based its decision on two considerations. First, the district court had misinterpreted a pleading requirement of the Truth In Lending Act. Second, the plaintiff's request to amend created no prejudice being "a prompt effort to remedy pleading deficiencies identified by the district court in the dismissal order — as opposed to an effort to add new claims or parties" premised on the district court's misinterpretation. Id. See also McNeal v. City of Hickory Valley, Tennessee, No. 01-1205, 2002 U.S. Dist. LEXIS 13618, at *6-7 (W.D.Mich. June 5, 2002) (granting plaintiff's motion for leave to amend notwithstanding Fed.R.Civ.P. 16(b) because the amendment was a clarification of the allegations in the original complaint and would not prejudice the defendant); SPX Corp. v. Shoe Equipment Specialists, Inc., No. 4:00cv49, 2001 U.S. Dist. LEXIS 4602, at *10-11 (granting defendant's leave to amend its counter-claim despite Fed.R.Civ.P. 16(b) because the motion seeking to apply a different state's franchise law to the same claim was a technical amendment, not an attempt to insert "a completely new cause of action").
In contrast, in Lake, the court denied plaintiff's motion for leave to amend to add a new claim, finding a failure to satisfy the good cause standard contained in Fed.R.Civ.P. 16(b). Lake, No. 1:00-CV-787, 2002 U.S. Dist. LEXIS 9547, at *17-20. The Lake court asserted that the plaintiff had failed to meet the good cause standard because it had all of the evidence needed to assert the new claim it now sought to add "from the very beginning of the case." Id. at *19. Moreover, in Lake, the court noted that the plaintiff failed to offer an explanation for not seeking an earlier modification to the case management order. Id. In the instant case, the proposed amendment would result in a new claim, not a clarification or technical amendment of an existing claim.
Snay offers two justifications for seeking leave to amend at this late date. First, he asserts that it would allow him to proceed to trial, in the absence of the Court granting summary judgment, without having to determine the appropriate statute of limitations for claims pursuant to O.R.C. § 4112.02(A) and (N) especially since no Ohio state court has spoken on this issue. Based on the reasons set forth in granting Defendant's motion for summary judgment with respect to Snay's statutory claim, this justification is without merit.
Second, Snay asserts there is no prejudice to Ameriwood because the proof of the statutory claim under O.R.C. § 4112.02(A) and (N) is the same as a claim for wrongful discharge in violation of public policy. The Court acknowledges that the substantive analysis of the proposed public policy claim and the statutory claim are similar, mitigating or perhaps obviating any prejudice to Ameriwood. Rogers v. AK Steel Corp, No. C-1-96-987, 1998 U.S. Dist. LEXIS 22450, at *20-22 (S.D.Ohio April 16, 1998). In Rogers, however, the court granted the motion for leave to amend the complaint to include a wrongful discharge claim in violation of public policy for age discrimination because the plaintiff had initiated litigation prior to the Supreme Court of Ohio's decision in Livingston v. Hillside Rehab. Hosp., 680 N.E.2d 1220 (Ohio 1997). Rogers v. AK Steel Corp., No. C-1-96-987, 1998 U.S. Dist. LEXIS 22450, *11-17. The decision in Livingston has been interpreted to create such a claim despite the fact that Ohio's age discrimination statutes appear to afford complete relief. Rogers, No. C-1-96-987, 1998 U.S. Dist. LEXIS 22450, at *10-11. See also Ziegler v. IBP Hog Market, Inc., 197 F. Supp.2d 950, 956 (N.D.Ohio. 2002); Leonardi, No. 72313, 1997 Ohio App. 4014, at *12-13. Unlike in Rogers, Snay's ability to maintain a claim for wrongful discharge in violation of public policy for age discrimination was established long before the instant case was filed. Moreover, Ameriwood properly notes that Rogers did not discuss or allude to Fed.R.Civ.P. 16(b).
In addition, the Court is mindful that the Inge court asserted that the primary factor in applying the Fed.R.Civ.P. 16(b) good cause standard is the moving party's diligence. In the case sub judice, a report of the parties planning meeting was filed pursuant to Fed.R.Civ.P. 26(f) (Doc. No. 8). This Court issued a Case Management Order on November 28, 2001 (Doc. No. 9) setting the deadline for amending pleadings at January 28, 2002. Snay did not seek leave to file his first amended complaint until November 5, 2002. Ameriwood's Answer (Doc. No. 4), filed on November 13, 2001, served notice that the one-hundred eighty (180) day statute of limitations was a possible defense it would pursue.
The Court finds that Snay cannot satisfy the good cause requirement of Fed.R.Civ.P. 16(b). Notwithstanding the potential lack of prejudice to Ameriwood, the Court cannot, under these circumstances, characterize Snay's motion for leave to amend as representing a diligent effort to meet the requirements set forth in the Case Management Order. Thus, Snay's motion for leave to amend his complaint is denied.
The Court need not address Ameriwood's other argument that Snay's motion to amend his complaint should be denied because the amendment is futile.
CONCLUSION
For the reasons stated above, Ameriwood's motion for summary judgment (Doc. No. 29) is granted. Snay's motion for leave to amend his complaint (Doc. No. 36) is denied.IT IS SO ORDERED.