[Cite as Dotson v. Freight Rite, Inc.,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

RONALD DOTSON :

Plaintiff-Appellant : C.A. CASE NO. 25495

v. : T.C. NO. 10CV8401

FREIGHT RITE, INC., et al. : (Civil appeal from Common Pleas Court) Defendants-Appellees :

:

..........

OPINION

Rendered on the 26th day of July , 2013.

..........

FRANK M. PAYSON, Atty. Reg. No. 0055165, 120 W. Second Street, Suite 400, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant

T. ANDREW VOLLMAR, Atty. Reg. No. 0064033, One Dayton Centre, 1 S. Main Street, Suite 1800, Dayton, Ohio 45402 Attorney for Defendants-Appellees

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Ronald Dotson, [Cite as Dotson v. Freight Rite, Inc.,

.] filed November 21, 2012. Dotson appeals from the October 23, 2012 decision of the trial

court that sustained Freight Rite, Inc.’s and Brian Beerbower’s (collectively, “Defendants”)

motion for summary judgment. Dotson was formerly employed at Freight Rite, Inc.

(“Freight Rite”), and Beerbower, along with John Paden, were co-owners of the company

and Dotson’s supervisors. Dotson sued Defendants as the result of the termination of his

employment. We hereby affirm the judgment of the trial court.

{¶ 2} Dotson filed his complaint against Defendants on October 21, 2010. He

asserted therein that he was 55 years old and African-American, and he asserted claims of

discrimination based upon race and age; common law discrimination; equitable estoppel;

promissory estoppel; wrongful discharge in violation of public policy; breach of the duties of

good faith and fair dealing; retaliation; infliction of emotional distress; negligence; and

reckless conduct, malice and punitive damages. Against Freight Rite alone, Dotson alleged

respondeat superior liability and ratification.

{¶ 3} In their motion for summary judgment, Defendants asserted that Dotson’s

common law claims failed because R.C. 4112.02 and 4112.99 provided his exclusive

remedies. They asserted that they did not discriminate against Dotson on the basis of race

or age, and that Dotson was unable to establish a prima facie case of discrimination.

Defendants asserted that Dotson was terminated for poor performance. They asserted that

Dotson’s claims for estoppel were barred because he was an at-will employee, and that his

claims for retaliation failed because there was no evidence of discrimination and no evidence

that Dotson complained of discrimination. Defendants asserted that Dotson’s claim of

intentional infliction of emotional distress failed because there was no evidence of extreme

or outrageous conduct. They asserted that Dotson’s remaining claims lacked factual 3

support. Finally, Defendants asserted that Beerbower “has no individual liability” for

terminating Dotson.

{¶ 4} Beerbower’s affidavit is attached to Defendants’ motion for summary

judgment. It provides that he is the owner and Chief Executive Officer of Freight Rite, a

55-employee business that delivers and installs home appliances for companies such as

Home Depot and General Electric. Beerbower averred that Freight Rite’s principal place of

operations is in Toledo, Ohio, and that there is a satellite facility in Vandalia, where Dotson

was employed from February, 2008 until April 27, 2010, as manager of the service center.

According to Beerbower, at all times, Dotson was an at-will employee.

{¶ 5} Beerbower averred that Dotson’s management duties included supervising

the delivery service, including the drivers and the installers of the appliances. Dotson was

required to respond to employee calls, and to aid with installation procedures and problems,

according to Beerbower. His affidavit provides that the position required Dotson “to have

knowledge of the delivery route, the terms and schedules for each delivery, and the actual

appliances,” as well as the ability to resolve problems “that might occur in the installation

process.” Beerbower further averred that the position required Dotson “to have strong

communication and leadership qualities, such as trustworthiness, honesty and empathy

towards the difficulties the employees met in the field.” Further, since deliveries were

ongoing throughout the day, Dotson was required to remain “on call” as long as employees

remained in the field, “even after his scheduled hours to be in the office.”

{¶ 6} Beerbower averred that Freight Rite’s delivery and installation services are

regularly evaluated by “Quality of Service” (“QOS”) surveys as follows: “Once an appliance 4

is delivered and hooked-up, the seller of the appliance asks the consumer to rate Freight

Rite’s service through a QOS survey. The seller uses the QOS survey to measure the

quality of the delivery service. As a manager, Mr. Dotson is responsible for managing his

facility’s QOS score.” Beerbower averred that Freight Rite received “inconsistent” scores

under Dotson’s management, while the Toledo facility “consistently scores among the best

in the region in QOS survey scores.” Specifically, Beerbower averred that Marshall

Edmondson, a representative of General Electric, a Freight Rite client, “brought the Vandalia

facility’s low QOS scores to the attention of Freight Rite in the summer of 2009 through

various emails, which were sent to John Paden, and which John Paden shared with me.”

Beerbower averred that Edmondson, in 2009, “also complained to me about Mr. Dotson and

the general operation of Freight Rite’s Vandalia facility.” According to Beerbower,

Edmondson requested that Beerbower “consider replacing” Dotson as the manager of the

facility. Beerbower averred that Dotson’s compensation was comprised of a base salary as

well as a bonus “for meeting a certain threshold score on the QOS surveys.”

{¶ 7} Beerbower averred that, in 2009, he received complaints from employees at

the Vandalia facility that Dotson was intoxicated at work, as well as complaints regarding

his management of the facility. Beerbower averred that on one occasion, he himself

believed Dotson to be intoxicated, based upon his “slurred speech and inability to articulate

coherent thoughts” in the course of a 2009 phone call.

{¶ 8} Beerbower averred that Dotson was required to send Freight Rite paperwork

to the Toledo facility by Federal Express on a weekly basis, and that he “routinely omitted

important paperwork from the Federal Express shipment, which caused operational delays 5

and added expense.” After several warnings without improvement and “repeated errors” in

the weekly shipment, Beerbower averred that he “docked” Dotson’s pay.

{¶ 9} Based upon the low QOS scores and the employee and customer complaints

he received, Beerbower averred that he “initiated a survey of the Vandalia employees.”

Beerbower’s affidavit provides that he “personally reviewed the employee surveys, many of

which specifically identified Mr. Dotson as a significant problem with employee morale,

stating that he was a poor communicator, that he lacked field knowledge, and that the

employees received more value from Scott Louy, who was another manager at the Vandalia

facility.”

{¶ 10} Beerbower averred that he met with Dotson in November, 2009, to discuss

the surveys. In preparation for the meeting, Beerbower averred that he created a “Manager

Evaluation form with specific items to address” with Dotson. After reviewing the form

with Dotson, Beerbower averred that Dotson signed it on November 27, 2009. A copy of

the form is attached to Beerbower’s affidavit. It is divided into two sections, namely “Items

of Excellence,” under which is a brief list of eight items comprising eight lines, and “Items

for Improvement,” under which are six detailed items comprising a total of 50 lines.

Beerbower averred that during “the evaluation, we specifically discussed the employees’

complaints, Mr. Dotson’s management of the QOS scores, the complaints of his after-hours

management, and the need for him to gain knowledge of what the driver’s (sic) did on a

daily basis.” Beerbower averred that he “restructured” both Dotson’s and Louy’s

compensation “by putting more emphasis on the facility attaining a QOS bonus.”

Beerbower averred that neither Louy nor Dotson received a QOS bonus in November of 6

2009, or in January, 2010, based upon the failure of the facility to achieve QOS scores of 94.

{¶ 11} According to Beerbower’s affidavit, within a two week span in February,

2010, a dishwasher and a washing machine were misplaced by a service team at the Vandalia

facility. During the few days that the washing machine was missing, Dotson was the only

manager on duty, and Louy located the washing machine within a half an hour of his return

from vacation, Beerbower averred. He further averred, “Dotson seemed oblivious to these

problems and he showed little capacity to change. He was so aloof to the problems that in

March of 2010, he suggested giving the employees ‘a pat on the back’ for what he thought

was good week.” Beerbower averred that Paden denied permission to Dotson to commend

the employees.

{¶ 12} Beebower’s affidavit provides as follows:

Due to the ongoing poor QOS scores, employee complaints, and the

misplaced product, Freight Rite made the decision to terminate Ronald

Dotson’s employment on April 27, 2010, as part of a management

restructuring in April, 2010. After reviewing the various positions and tasks

performed by the various employees in the Vandalia facility, the overall

Freight Rite management team, including myself and John Paden, determined

that the Vandalia facility would operate more efficiently without a general

manager position at that facility. Mr. Dotson’s job duties involved tasks that

Freight Rite’s other managers could perform at lower cost and with greater

efficiencies to Freight Rite. At the same time Mr. Dotson was terminated, 7

Freight Rite restructured the Vandalia management team, dividing Mr.

Dotson’s job duties between three lower-level managers and John Paden.

Mr. Dotson was not replaced, rather, his General Manager position was

eliminated, and his job duties redistributed to other employees.

{¶ 13} Beerbower averred that Freight Rite has seven employees over the age of 40,

three of whom are between the age of 50 and 55, as well as six non-Caucasian employees.

He averred that Dotson was not terminated based upon his age or race, and that Dotson

never advised him that “he was treated differently by any of his co-workers or Freight Rite

management because of his age or race.”

{¶ 14} Beerbower averred that in 2008, he interviewed “a number of candidates for

the general manager position,” and that he hired Dotson “over several younger, Caucasian

candidates,” due to the fact that Dotson “represented himself as qualified during the

application process, with general management and logistics experience.” According to

Beerbower, he “later found out [Dotson] did not have the needed skills for the job, such as

appliance installation skills, and employee relation skills.” Beerbower averred that the

decision to terminate Dotson was “based on my interaction with and observation of Mr.

Dotson and repeated customer and employee complaints to myself and John Paden about

Mr. Dotson’s treatment of the employees, failure to get along with customers, inability to

address the delivery technician’s concerns while out in the field, and overall poor quality of

his work.” Finally, Beerbower averred that Dotson “developed an employee point

discipline system for Freight Rite” that was never utilized for managers, including Dotson

and Louy. 8

{¶ 15} Also attached to Defendants’ motion for summary judgment is the affidavit

of John Paden. Paden averred that he is the Chief Operations Officer of Freight Rite, and

that he supervised Dotson. Paden’s averments regarding communications received from

Marshall Edmondson regarding the Vandalia facility’s QOS scores are consistent with

Beerbower’s. Email correspondence, from Edmondson to Paden and Beerbower, regarding

the low scores, email correspondence from Paden to Dotson and Louy, regarding the low

scores, and Paden’s email response to Edmondson regarding the scores, are attached to

Paden’s affidavit. Paden further averred that he received a phone call from Edmondson in

May, 2009, “about the low QOS scores from General Electric customers” in the Vandalia

facility’s territory. A May 20, 2009 email, from Paden to Dotson and Louy, regarding

Edmondson’s call, is attached to the affidavit. Paden, like Beerbower, also asserted that a

washing machine was misplaced in February, 2010, while Louy was on vacation, and that

Dotson “was unable to locate the machine for a few days.” Paden averred that he

participated in the decision to terminate Dotson, and that the decision was not based upon

Dotson’s age or race. Finally, Paden averred that Dotson never made him aware of any

discriminatory treatment directed toward Dotson by any co-workers or managers based upon

his race or age, and that Paden was not aware that any employees “made racial or age-based

comments” to Dotson.

{¶ 16} Finally, attached to the motion for summary judgment are the affidavits of

Barry Gilmore, Brandon Johnston, Charles Kinsel, Brian Greenspan and Larry Ary. Each

of them averred that he was employed at Freight Rite during Dotson’s and Louy’s

employment and directly supervised by Dotson and Louy. Attached to each affidavit is each 9

employee’s individual “Team Evaluation,” all of which were completed in the Fall of 2009,

as set forth in Beerbower’s affidavit. The preamble to the evaluation provides in part as

follows: “This is an operational evaluation to be filled out by all team members of Freight

Rite in order to assess the strengths and weaknesses of our Vandalia operation. * * * Your

honest and thoughtful responses are necessary to assist in building the best team possible, so

PLEASE complete this evaluation thoroughly and truthfully.” The evaluation contains 27

questions covering several areas of operation within the facility.

{¶ 17} Question 18 of the evaluation asked the employees to identify a manager(s)

who provides helpful answers and resolves problems, while question 19 asked the

employees to identify a manager(s) who is not approachable, not helpful and who lacks

knowledge to assist with problem resolution. Each of the attached evaluations identifies

Louy in question18 and Dotson in question 19. For example, Kinsel’s evaluation provides

that Dotson “does not seem to have previous field” experience to assist with deliveries and

problems, and that Dotson “is a very difficult person to deal with.” Johnston’s evaluation

provides that Dotson has “no communication skills.”

{¶ 18} Dotson’s affidavit is attached to his memorandum in opposition to

Defendants’ motion for summary judgment. According to the affidavit, Dotson “was the

only black manager ever employed by Freight Rite, Inc. at either its Toledo or Vandalia,

Ohio locations. Everyone else is white.” Dotson further averred that he was the only

manager over 40 at Freight Rite in either of its locations, and that he was “age 55 at the time

of the occurrences in my Complaint.” Dotson averred that both Beerbower and Paden are

white and in their 30's. According to Dotson, “Louy replaced me as General Manager of the 10

Vandalia operation for Freight Rite, Inc. after I was terminated. He is white and he was 31

years old at the time.” Dotson further averred that when Freight Rite “acquired the

Vandalia operation and contract it also had to absorb about a dozen of the former operation’s

employees, some of whom had caused that previous operation to lose their contract because

of behavior problems and installation problems.”

{¶ 19} Dotson averred that he has an “extensive logistics background.” Attached

to his affidavit is correspondence from Emery Worldwide, Keystone Foods, and Transfreight

confirming his prior employment. Dotson asserted that “the Vandalia operation

out-performed Toledo in terms of financial performance during my tenure as General

Manager.”

{¶ 20} Dotson further averred as follows:

When I was General manager at Vandalia I continually received

mixed messages [from] Beerbower and Paden. Beerbower wanted me to

interact more with the drivers/installers and compliment and award them and

encourage their performance. But when I tried to do so because of excellent

QOS performance by some of the employees John Paden stopped me and

would not let me compliment or award them.

{¶ 21} Dotson asserted that he was repeatedly complimented by Beerbower on his

performance at Freight Rite, and he attached correspondence from Beerbower to him and

Louy regarding their receipt of a “2008 QOS Bonus,” and thanking them for “all of your

hard work and efforts,” as well as email correspondence, dated January 21, 2010, which

provides in part, “Despite the issues your location had with QOS in the 4th quarter, you still 11

pulled out a strong and successful year-end score. Overall, 2009 was a HUGE success for

you guys, and I am very proud!!!” Dotson also attached his performance evaluation dated

November 18, 2009. Dotson asserted that he “exceeded all QOS requirements for the full

years of 2008 and 2009.”

{¶ 22} Regarding his development of Freight Rite’s disciplinary program, Dotson

averred that Beerbower advised him that he was a “significant contributor” to the program,

and that the system “applied to all [Freight Rite] employees, including managers, whether

based in Toledo or Vandalia.” Dotson attached a copy of the “Freight Rite, Inc. Employee

Policies and Disciplinary Procedures” to his affidavit. It provides in part that Freight Rite

“utilizes a point system by which all actions, behaviors and requirements are rated. The

accumulation of points by an employee is strongly discouraged, and all employees should be

aware that the accumulation of points can and will lead to [progressive] disciplinary action.”

The policy provides that the accumulation of five points in a rolling six-month period will

result in termination. Dotson asserted that he never accumulated five points within any

rolling six-month period.

{¶ 23} Dotson asserted that he “complained about the unequal treatment I received

and the harassment by manager” Louy to Beerbower in February and July of 2009, “but he

and the company refused to take any action to protect me.” Upon his termination, Dotson

asserted that the “only reason given” was that Beerbower and Freight Rite wanted to

“‘establish a new culture’ at Vandalia. The change brought about an all white under the age

of 40 management team. * * * Culture to me implicates race and that is how I understood the

comment.” 12

{¶ 24} Dotson attached a copy of his job description to his affidavit, and he asserted

that one “of the essential management responsibilities I had was truck routing, and it

required specialized training. Brian Beerbower permitted Scott Louy to have this training

but would not permit me to have the training. This lack of training inhibited my

advancement opportunities with the company and affected negatively my job performance.”

{¶ 25} Doston asserted that a “DOT physical” was a requirement of the job, and

that he witnessed “Louy refuse to obtain an update for a DOT physical” in an “open defiance

of authority.” Dotson asserted that he witnessed Louy “being directly insubordinate” to

Beerbower without resulting discipline. Dotson asserted that he observed Louy “being given

the time to accompany drivers in the field and I was not. Yet Defendants complained that I

failed to exhibit initiative by not accompanying drivers in the field.” Dotson asserted that

Louy refused to investigate a property damage claim as directed, “and this behavior was

permitted.” According to Dotson, in January, 2010, Louy “was permitted to renew his

employee ID but I was not allowed to do this.” According to Dotson, he “was allegedly

fired at least partially because of inconsistent QOS scores for the Vandalia operation, even

though [Louy] was not fired and he was responsible for exactly the same scores.”

{¶ 26} Dotson averred that Beerbower “stated to me that ‘you need to get to know

your workers and adjust your style’ which I understood, inasmuch that all the

drivers/installers were white, to mean I needed to act more white. I was offended by this

comment.” Dotson averred that Beerbower acknowledged in his deposition that Dotson

complained to him.

{¶ 27} Regarding the employee surveys attached to Defendants’ motion for 13

summary judgment, Dotson averred that he has had to counsel Gilmer, Johnston, Kinsel,

Greenspan and Ary “for work related issue or performance problems, and thus they would

have a motive to offer a false statement and denigrate me if they had the chance, as they did

with the employee surveys.” Dotson averred that Freight Rite failed to include surveys

favorable to him from other employees. According to Dotson, Beerbower advised him “that

Scott Louy lacked people skills and was confrontational with employees. And yet Scott

Louy retained his job.”

{¶ 28} Dotson averred that he never consumed alcohol while at work or on call.

According to Dotson, the “allegations that I sounded intoxicated were either made up

statements for a negative purpose, or perhaps the reporters were not aware that I at the time

was on a number of medications that made one slower and somewhat drowsy.” Finally,

Dotson asserted that at the time of his interview for the manager position at Freight Rite,

Beerbower “made the comment in my presence that this was a physical job and he wondered

if I could to the job because of my age. I was offended.”

{¶ 29} Also attached to Dotson’s memorandum in opposition is the affidavit of Dr.

James Barna, which provides that he “observed and assessed” Dotson, and that it is his

opinion to a reasonable degree of psychological certainty that Dotson suffers from an

adjustment disorder with mixed anxiety and depressed mood, which is chronic and severe.

According to Barna, Dotson’s emotion distress “was the direct result of, and directly caused

by,” Defendants’ “discriminatory and retaliatory and harassing conduct” directed towards

Dotson.

{¶ 30} Defendants filed a reply to Dotson’s memorandum, in which they asserted in 14

part that Dotson made numerous false statements in his memorandum that are not supported

by the record. Defendants further asserted that there was no proof that Dotson “was

qualified for his position or that he was replaced by a Caucasion worker under age 40.”

Defendants asserted that there was no evidence that Freight Rite treated Scott Louy “any

better than” Dotson.

{¶ 31} We note that Beerbower’s and Dotson’s depositions are also part of the

record before us.

{¶ 32} In sustaining Defendants’ motion for summary judgment, the trial court

determined that there “is no genuine issue of material fact that Plaintiff can point to whereby

he could establish the Defendant discriminated against him based on age, race, or any reason

other than poor performance.” The court concluded that “Defendant is entitled to summary

judgment on Plaintiff’s claim of common law discrimination” because Dotson’s exclusive

remedy is provided by statute. The court found that Defendant was entitled to summary

judgment on Dotson’s age and race discrimination claims, since Dotson “has not presented

direct evidence of intentional discrimination by Defendants,” and further that Dotson did not

establish a prima facie case of discrimination by means of circumstantial evidence. The

court noted that while Dotson was a member of a protected class, was discharged, and was

qualified for the manager position “[o]n paper,” Defendants “demonstrated to this Court that

his poor performance negated those qualifications.” The court further concluded that

“Defendants have produced sufficient evidence to prove that [Dotson’s] duties were

redistributed among existing employees,” and that Dotson was accordingly not replaced.

The court concluded that “no genuine issue of material fact exists as to the third and fourth[] 15

element[s] of the prima facie test for age discrimination and Defendants are entitled to

judgment as a matter of law on [Dotson’s] age and race discrimination claims.” The court

next noted that even if Dotson established a prima facie case of discrimination, he was

terminated for poor performance, “which is a legitimate, non-discriminatory reason.”

{¶ 33} The court determined that Dotson’s claims for estoppel failed because he

was an at-will employee, and Defendants did not promise future employment. The court

found that Dotson’s claims of retaliation failed because there was no discrimination and

Dotson failed to “show evidence that he complained of discrimination to anyone.” The

court found that Dotson’s claim of intentional infliction of emotional distress failed “because

there was no extreme or outrageous conduct engaged in by any Freight Rite employee.”

The court further found that there was “no factual basis for the remaining claims of breach of

the duty to act in good faith and fair dealing, wrongful discharge, negligence, respondeat

superior and reckless conduct,” each of which “derivative” claim is dependent upon a

finding of discrimination. The court found that “Beerbower did not employ [Dotson], and

as a result has no individual liability for [his] termination. Therefore, * * * Beerbower is

entitled to summary judgment on all claims on this basis as well.” The court found that

certain pending liminal motions were rendered moot by its decision, and it ordered that

“Defendants’ costs are to be paid by Plaintiff.”

{¶ 34} Dotson asserts five assignments of error. We will address Dotson’s third

assigned error first for ease of analysis. It is as follows:

“THE TRIAL COURT ERRED WHEN IT CONSIDERED TEAM

EVALUATIONS.” 16

Dotson asserts that he moved the trial court to exclude the employee surveys from

trial on October 21, 2012 “because they lacked relevance under R.Evid. 402 to prove age and

race discrimination” * * * “but are instead merely a popularity contest.” He asserts that in

granting summary judgment, the trial court “relied heavily on the comments made in the

‘Employee Surveys’ to determine that Plaintiff was not qualified for his position.”

Defendants reply that they “considered the surveys in evaluating the Plaintiff’s effectiveness

as a manager. The surveys show additional age and race neutral bases for Freight Rite’s

employment decision.”

Civ.R. 56(E) specifies the types of evidence a party may use to support or oppose

summary judgment as follows: “Supporting and opposing affidavits shall be made on

personal knowledge, shall set forth such facts as would be admissible in evidence, and shall

show affirmatively that the affiant is competent to testify to the matters stated in the

affidavit. Sworn or certified copies of all papers or parts of papers referred to in an affidavit

shall be attached to or served with the affidavit.”

{¶ 35} The affidavits and authenticated surveys are competent summary judgment

evidence pursuant to Civ.R. 56(E). Further, contrary to Dotson’s assertion, it is not evident

that the trial court “relied heavily” upon them in its decision; the trial court made no mention

of the surveys in the entirety of its decision. Dotson’s third assigned error is overruled.

{¶ 36} We will next consider Dotson’s first assigned error, which is as follows:

“THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF

PLAINTIFF BY INCORRECTLY EXCUSING BRIAN BEERBOWER, PLAINTIFF’S

SUPERVISOR, FROM ALL LIABILITY IN DECIDING THAT HE DID NOT MEET THE 17

STATUTORY DEFINITION OF EMPLOYER.”

{¶ 37} Dotson asserts that “Beerbower is an employer because he acted in the

instant case directly and indirectly in the interests of Freight Rite, Inc. in his dealings with

Plaintiff. Further, Ohio law is clear that liability may be imposed against supervisors and

managers in their individual capacity * * * .” Defendants concede that Beerbower “meets

the definition of an employer found in R.C. § 4112 for purposes of a discrimination case,”

but they further assert that since Beerbower did not discriminate against Dotson, the grant of

summary judgment in his favor is proper.

{¶ 38} R.C. 4112.01(A) provides: “(2) ‘Employer’ includes the state, any political

subdivision of the state, any person employing four or more persons within the state, and any

person acting directly or indirectly in the interest of an employer.” We agree with Dotson,

and Defendants, that Beerbower is an employer within the meaning of R.C. 4112.01(A)(2).

However, this error by the trial court is not prejudicial to Dotson; for the reasons set forth

below under assignments of error two and four, the error does not alter the outcome of the

grant of summary judgment in Beerbower’s favor. Dotson’s first assigned error is

overruled.

{¶ 39} We will next consider Dotson’s fourth assignment of error, which is as

follows:

“THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT

ON PLAINTIFF’S RACE, AGE, RETALIATION, AND EMOTIONAL DISTRESS

CLAIMS.”

{¶ 40} According to Dotson, he established a prima facie case of race and age 18

discrimination, and Freight Rite’s reason for terminating him, namely his poor performance,

was pretextual for discrimination. Regarding his retaliation claim, Dotson asserts that he

“did engage in the requisite protected activity by complaining several times to Beerbower”

about “unequal treatment.” Finally, Dotson asserts that the trial court erred in finding that

there was no extreme or outrageous conduct directed at him by Defendants.

{¶ 41} As this Court has previously noted:

Summary judgment is appropriate when: (1) there is no genuine issue

as to any material fact; (2) the moving party is entitled to judgment as a

matter of law; and (3) reasonable minds can come to but one conclusion, and

that conclusion is adverse to the party against whom the motion for summary

judgment is made, who is entitled to have the evidence construed most

strongly in his favor. Harless v. Willis Day Warehousing Co., Inc., (1978),

,

; citing Civ. R. 56(C).

Upon a motion for summary judgment, the initial burden is on the

moving party to show that there is [no] genuine issue of material fact.

Dresher v. Burt (1996),

,

. Once a

moving party satisfies its burden, “the nonmoving party may not rest upon the

mere allegations or denials of the party's pleadings.” Murphy v. McDonald's

Restaurants of Ohio, Inc., Clark App. No.2010-CA-4,

, at ¶

13, citing Dresher,

,

. “Rather, the

burden then shifts to the non-moving party to respond, with affidavits or as

otherwise permitted by Civ. R. 56, setting forth specific facts which show that 19

there is a genuine issue of material fact for trial.”

“Throughout, the

evidence must be construed in favor of the non-moving party.”

Steve Zell

Farm Equip., Inc. v. Wagner, 2d Dist. Miami No. 2010 CA 1,

, ¶ 9-10.

{¶ 42} As this Court has further noted:

Appellate courts review a trial court's entry of summary judgment de

novo. Brown v. Scioto Cty. Bd. of Commrs.,

,

(4th Dist. 1993). “De novo review means that this court uses the

same standard that the trial court should have used, and we examine the

evidence to determine whether as a matter of law no genuine issues exist for

trial.” Brewer v. Cleveland Bd. of Edn.,

,

(8th Dist. 1997), citing Dupler v. Mansfield Journal Co.,

,

(1980). PNC Bank, N.A. v.

Craig, 2d Dist. Montgomery

.

Race and Age Discrimination Claims (Counts I & II)

{¶ 43} R.C. 4112.02(A) provides:

It shall be an unlawful discriminatory practice:

(A) For any employer, because of the race, color, religion, sex, military status,

national origin, disability, age 1 , or ancestry of any person, to discharge

without just cause, to refuse to hire, or otherwise to discriminate against that

1 R.C. 4112.14(A) identifies persons over the age of 40 as the class protected by R.C. 4112.02. 20

person with respect to hire, tenure, terms, conditions, or privileges of

employment, or any matter directly or indirectly related to employment.

{¶ 44} As this Court has previously noted:

Absent direct evidence of discrimination, a prima facie case of

discrimination is established when a plaintiff demonstrates (1) that he or she

is a member of a protected class, (2) that he or she was subjected to an

adverse employment action, (3) that he or she was qualified for the position,

and (4) that someone outside the class was treated more favorably or replaced

the plaintiff. Talley v. Bravo Pitino Restaurant Ltd. (C.A.6, 1995),

, citing McDonnell Douglas Corp. v. Green (1973),

,

,

, and Mitchell v. Toledo Hosp. (C.A.6,

1992),

. Jackson v. Internatl. Fiber,

,

,

(2d Dist.).

{¶ 45} As this Court has further noted:

In the context of a defendant's Civ.R. 56(C) motion for summary

judgment proceeding, and after the plaintiff has pointed to evidence that

satisfies the [prima facie case], the defendant may overcome the

discriminatory presumption which the factors establish by “propounding a

legitimate, nondiscriminatory reason for plaintiffs' discharge. (Then), the

plaintiff must ... show that the rationale set forth by defendant was only a

pretext for the unlawful discrimination.” Kohmescher v. Kroger Co. (1991),

,

, quoting Barker v. Scovill. Risley v. 21

Comm Line, Inc., 2d Dist. Miami No. 02CA42,

, ¶ 20.

{¶ 46} Regarding the third element of the prima facie case, we agree with the

rationale of the Eighth District as follows:

In order to establish the “qualified” element of the prima facie case,

[Dotson] must prove he was performing to the company's satisfaction, under

Ohio Law. In Smith v. Greater Cleveland Regional Transit Auth. (May 24,

2001), Cuyahoga App. No. 78274, [the Eighth Distirct] stated, “to

demonstrate qualification for a position a litigant must not only demonstrate

the capability of performing the work, but must also demonstrate that he or

she is meeting the employer's legitimate expectations.” Wilson v. Precision

Envtl. Co., 8th Dist. Cuyahoga No. 81932,

, ¶ 31.

{¶ 47} Further,

When confronted with defendant's motion for summary judgment

cataloging the numerous documented instances of dissatisfaction with

plaintiff's performance level, the burden [is] upon plaintiff to come forward

with affidavits or other acceptable forms of admissible evidence to contradict

or rebut the employer's history of frustration and dissatisfaction with his work

and attitude.

***

Whether an employer is qualified or not is measured at the time the

decision to terminate is made.* * *. Neubauer v. A.M. McGregor Home

Corp., 8th Dist. Cuyahoga No. 65579,

(May 19, 1994). 22

{¶ 48} Dotson’s complaint established that he was a member of two statutorily

protected classes, age and race, and that he was subject to an adverse employment action,

termination. Dotson asserts in his brief that he was qualified for the position for the

following reasons:

1) He was told by Paden and Beerbower that he was hired because of

his extensive logistics background. * * * 2) The Vandalia start-up proved to

be a success. * * * 3) Plaintiff successfully managed Freight Rite Vandalia

and received numerous compliments on his performance. * * * 4) Beerbower

stated at his deposition that Plaintiff was at all times fully qualified for his

position with Freight Rite. * * * 5) John Paden at his deposition stated when

asked: Q. When you hired Ron Dotson, did you believe him to be qualified

for his position? A. Yes.

{¶ 49} The following exchange occurred in Beerbower’s deposition:

Q. You [hired Dotson] because of his background, specific

background in this kind of business?

A. Correct.

Q. And you were impressed with his background?

A. Correct.

Q. You felt he was qualified for the job you hired him for at Freight,

correct?

A. Based on his interviews and resumes, we felt he is qualified.

Paden also indicated in his deposition, a portion of which is attached to Dotson’s 23

memorandum in opposition to summary judgment, that he believed Dotson was qualified at

the time he was hired.

{¶ 50} As noted above, Beerbower averred in his affidavit that he “later found out

[Dotson] did not have the needed skills for the job, such as appliance installation skills and

employee relation skills.” Beerbower further testified at deposition that “over the big

picture, the course of the two years, I felt that he performed poorly in the duties we

requested.” Beerbower testified, “we continually worked with Ron and what I guess you

could label as counseling, and training, trying to get him to perform at the level we needed

him to perform for his position.” Beerbower acknowledged that he complimented

Beerbower and Louy for the facility’s QOS scores, and that while there were a couple of

incidents in a two year period where the scores were not achieved, that Dotson and Louy

achieved the requisite scores the majority of the time. Beerbower testified, however, that his

“displeasure” regarding the QOS scores related to the management of their achievement and

not the scores themselves.

{¶ 51} Regarding Dotson’s assertion that Beerbower refused to train him on truck

routing, Dotson asserted in deposition, “* * * that routing job seemed to be held for white

males under forty. I’m fully capable of doing it, never allowed to do it, never allowed to be

trained for it.” When asked why Louy was trained on routing and Dotson was not,

Beerbower indicated at deposition that Louy had already received training at the Toledo

facility, and he further indicated as follows:

* * *In the first side of it, Ron, when we set up the hierarchy, it was

our intent and our hope that Ron would primarily work in the same capacity 24

that John Paden does for our Toledo operation, and that Scott would primarily

work in the capacities that I do for the - - or I did for the Toledo operation.

It was our hope that we could eventually cross-train them both in each other’s

activity, because John and I had to do that when our company was smaller.

And the problem was we could never get Ron to fully grasp or pick up or

become efficient or proficient in the core activities that we intended for his

position.

So if someone can’t even grasp those activities, you’re not going to

move them over to what is probably one of the most critical daily activities

going on, which is your routing

He would also not become proficient in field knowledge, or make an

effort to become proficient in field knowledge, and field knowledge is critical

to routing.

{¶ 52} As noted above, in 2009, according to Beerbower, after Doston had been

employed at Freight Rite for over a year, there were numerous employee complaints about

Dotson’s management of the facility, as well as complaints from Marshall Edmondson of

General Electric. Beerbower in turn surveyed his Vandalia employees. According to

Beerbower at deposition, the “preponderance of the responses were negative to Ron; a very

minimal amount of responses were negative to Scott.” Regarding the Manager Evaluation

that Beerbower reviewed with Dotson, in November, 2009, Beerbower testified, Ron had a

history of demeaning employees, making employees feel undeserving to be there; making

employees feel that they didn’t have value in our company. * * * It doesn’t matter what your 25

responsibilities are; we’re all part of the same team and deserve the same dignity and

respect.” Beerbower described it as a “review spurred on by necessity, because we were

having problems at the location,” and he stated that “the intent of the review was to direct

[Dotson] in correcting those actions with positive feedback.” When asked why the employee

discipline program was not applied to Dotson, Beerbower replied, “We never in our

company’s history and to this date have never applied a demerit point system for managers.”

According to Beerbower, “We worked with Ron continually over two years trying to find a

place for him of value in our company. And I’m trying to allow him to demonstrate value.

And eventually became exhausted at the task.”

{¶ 53} Regarding the allegations of Dotson’s intoxication, Beerbower stated that

he received multiple complaints from employees on the issue in addition to his own

experience with Dotson on the phone. After receiving a report from Josh Banks, a general

labor employee, about a “detailed experience” in which he “perceived Ron was intoxicated,”

Beerbower stated that he confronted Dotson, and that Dotson did not admit or deny the

allegations. Beerbower stated that the allegations of intoxication were “one more link in the

chain of questioning Ron’s credibility, reliability, dependability, and his overall capacity to

act as a general manager for us.”

{¶ 54} Regarding the missing washing machine, Dotson testified at his deposition

that he did not recall the incident. In his brief, however, he speculates as follows: “Could

Louy have hidden or otherwise assured that the washer could not be located, all the while

knowing himself of its location, to embarrass Plaintiff in the eyes of Beerbower?”

{¶ 55} The following exchange occurred in Beerbower’s deposition regarding 26

Dotson’s termination:

Q. On the day you fired him, * * * isn’t it true that you * * * didn’t

give him any reason for the termination, other than you wanted to establish a

new culture?

A. That would be a misquote of my words.

Q. You didn’t use the word[s] “new culture”?

A. No.

Q. What did you say?

A. We told him that we wanted to change the management style.

***

Q. What management style did you want?

A. Someone who didn’t talk down to the employees, and someone

that actually completed all their responsibilities correctly.

{¶ 56} Regarding Dotson’s assertion that the Vandalia facility was successful,

Beerbower testified that “the fact that Vandalia was performing higher in revenue than

Toledo has nothing to do with QOS. It has to do with the size, the geographic size of the

territory. Mr. Dotson had nothing to do with the geographic size of the territory.”

{¶ 57} In Dotson’s deposition, when asked about his experience in the home

appliance delivery business prior to his employment at Freight Rite, Dotson indicated that he

had “[n]one.” He stated that he had never worked for a company that did electrical or

plumbing work, and he acknowledged that field knowledge was important in answering the

questions of the drivers and installers in the field. Dotson also acknowledged in his 27

deposition that he was not singled out or treated differently from Louy for failing to achieve

the QOS score in November, 2009.

{¶ 58} Regarding the employee surveys, when asked why the comments as to

Louy’s performance were “so much different” from the comments addressed to his own,

Dotson replied, “ Suppositions could be because Scott’s white. I’m black. These guys are

mostly - - all these guys were under forty, predominately under forty. Scott liked certain

music. Maybe they liked certain music. Maybe there’s common themes. Maybe they had

more to talk about afterwards, I don’t know.” Dotson acknowledged that Beerbower

discussed with him his need to improve his field knowledge and employee relations.

{¶ 59} The following exchange occurred:

Q. During your employment at Freight Rite, did Brian Beerbower

say anything to you that led you to believe that any of his employment

decisions with respect to you were based on your race?

A. No.

Q. During your employment at Freight Rite, did Brian Beerbower

ever say anything to you that led you to believe that any of his employment

decisions with respect to you were based on your age?

A. No.

Q. During your employment at Freight Rite, was any other employee

promoted, advanced, bonused, raised, treated positively in any way based on

being a different race than you?

A. I don’t follow your question. 28

Q. I’m asking whether there was somebody who was given a raise,

promoted above you, something like that that you believe was based on their

being a different race than you?

A. Not to my knowledge, no.

Q. And then the same question except with respect to age. Was

there ever an employee that was either bonused, raised, or promoted above

you during your time at Freight Rite where you believe that was done as a

result of the employee’s age?

A. No.

{¶ 60} Finally, Dotson acknowledged in his deposition that he neglected to include

certain important paperwork in Federal Express shipments on more than one occasion, as

Beerbower averred in his affidavit. While Dotson averred in his affidavit that Louy refused

to get a physical and inspect property damage as directed by Beerbower, in his deposition he

testified that Louy ultimately complied with Beerbower’s directions.

{¶ 61} Construing the evidence in a light most favorable to Dotson, as did the trial

court, we conclude that Dotson was not qualified for his position and that he accordingly

failed to satisfy the third element of his prima facie case. The positive comments about his

qualifications that Dotson cites above were made when he was hired, based upon his

representantions, not at the time of his termination, when his qualifications for the position

are measured. Beerbower received multiple internal and external complaints regarding

Dotson’s performance, and he conducted an investigation which confirmed the allegations in

the complaints. Dotson failed to meet his employers’ legitimate expectations, and he failed 29

to provide anything other than “supposition,” speculation, and self-serving conclusory

assertions to refute the numerous negative comments about his performance.

{¶ 62} Since Dotson failed to raise a genuine issue of material fact regarding the

third element of his prima facie case, we need not determine whether or not he was replaced,

pursuant to the fourth element. Accordingly, we conclude that the trial court properly

granted summary judgment on his claims of discrimination based on age and race. We

finally, note, as did the trial court, that even if we were to conclude that Dotson established a

prima facie case of discrimination, Defendants articulated a legitimate, non-discriminatory

reason for his termination, namely Doston’s poor performance as a manager. See, Putney v.

Contract Bldg. Components, 3d Dist. Union No. 14-09-21,

(inability

to perform job in a satisfactory manner, as established by affidavits and documentation, is a

legitimate, nondiscriminatory reason for termination.)

Retaliation (Count VIII)

{¶ 63} In his brief, Dotson directs our attention to paragraph 21 of his affidavit,

which provides that he complained repeatedly to Beerbower about the way Louy treated him.

{¶ 64} As this Court has noted:

Division (I) [of R.C. 4112.02] makes it unlawful for an employer “to

discriminate in any manner against any other person because that person has

opposed any unlawful discriminatory practice defined in this section or

because that person has made a charge, testified, assisted, or participated in

any manner in any investigation, proceeding, or hearing under sections

4112.01 to 4112.07 of the Revised Code.” As when proving a violation of 30

division (A), to prove that an employer violated division (I), a plaintiff has

the initial burden to establish a prima-facie case. A prima-facie case of

retaliation consists of four essential elements: “(1) [the claimant] engaged in a

protected activity, (2) the defending party was aware that the claimant had

engaged in that activity, (3) the defending party took an adverse employment

action against the employee, and (4) there is a causal connection between the

protected activity and adverse action.” Greer-Burger v. Temesi,

,

,

, citing Canitia v. Yellow

Freight Sys., Inc. (C.A.6, 1990),

. Wallace v. Mantych

Metalworking,

,

,

(2d Dist.).

{¶ 65} In his deposition, Dotson testified that he believed that Louy was prejudiced

against him because of his age and race, and the following exchange occurred:

Q. What did Scott Louy do that you believe was evidence of his bias

or prejudice because of your race and age?

A. Offered tremendous resistance in terms of lack of cooperation to

the extent where it bothered me enough that I left the building in the summer

I believe of 2009 and called Brian Beerbower to alert him to the fact that this

could not continue the way it’s going with Scott offering resistance and

combativeness and the hostility towards me, and I didn’t appreciate it.

***

Q. Did you ever complain to anyone at Freight Rite that you felt you 31

were being discriminated against?

A. Yes.

Q. To whom did you make the complaint?

A. Brian Beerbower

***

Q. What was your complaint?

A. Regarding my treatment, regarding the hostility and so forth that

was being directed toward me from Scott Louy.

Q. Tell me specifically what you said.

A. I just remember - - I can’t remember specifics. I just remember

that the essence was - of the conversation was that I felt strong hostility, lack

of cooperation, and just general uncooperativeness toward me, and there was

no reason for it in my mind other than the fact that I was different from him.

I was not white and I was over forty.

Q. Did you say all those things to him?

A. I didn’t say those things to Brian.

Q. Tell me what you said.

A. * * * The gist was there was hostility, there was

uncooperativeness, there was combativeness. It had been ongoing. It had

gotten me to the point I couldn’t take it any longer; it couldn’t continue.

That’s the essence. (Emphasis added).

{¶ 66} By his own testimony, Dotson did not engage in the type of protected 32

activity that R.C. 4112.01(I) prohibits; he merely complained to Beerbower that Louy was

uncooperative, not that he discriminated against him based upon his age or race. Dotson’s

testimony is consistent with the averments in Beerbower’s and Paden’s affidavits that

Dotson never complained to them that any of his co-workers discriminated against him on

the basis of his age or race. Construing the evidence most strongly in favor of Dotson, we

conclude that he failed to raise a genuine issue of material fact regarding his retaliation

claim.

Intentional Infliction of Emotional Distress (Count IX)

{¶ 67} Dotson’s brief contests the trial court’s determination that he failed to raise

a genuine issue of material fact as to this claim, and he vaguely asserts that in previous

sections of his brief he directed our attention to instances of “racially tinged remarks being

made by Beerbower” in Dotson’s presence. We assume that he refers to assertions that

Beerbower advised him to “get to know your workers and adjust your style,” which Dotson

interpreted to mean that he “needed to act more white,” and his assertion that Beerbower

advised him at termination that he intended to “establish a new culture” at Freight Rite, a

comment which implicated race, according to Dotson. Dotson also argues herein that his

termination under the circumstances “might be considered by a jury to be extreme and

outrageous conduct.”

{¶ 68} As this Court has noted:

To establish a claim for intentional infliction of emotional distress, a

plaintiff must prove that;

(1) the defendant either intended to cause emotional distress or knew 33

or should have known that the actions taken would result in serious emotional

distress to the plaintiff; (2) the defendant's conduct was so extreme and

outrageous as to go “beyond all possible bounds of decency”; (3) the

defendant's actions were the proximate cause of plaintiff's psychic injury; and

(4) the mental anguish suffered by plaintiff is serious and of a nature that “no

reasonable man could be expected to endure it.” A claim for intentional

infliction of emotional distress must be based on more than “mere insults,

indignities, threats, annoyances, petty oppressions, or other trivialities.”

(Citations omitted.) Harsh v. Franklin, 2d Dist. Montgomery No. 24331,

. Clinton v. Faurecia Exhaust Sys., Inc., 2d Dist.

Miami No. 2012-CA-1,

.

{¶ 69} As this Court has noted, Ohio recognizes employment-at-will and, “unless

otherwise agreed, either party to an oral employment-at-will employment agreement may

terminate the employment relationship for any reason which is not contrary to law.” Mers v.

Dispatch Printing, Co.,

,

(1985), syllabus. Easterling v.

Ameristate Bancorp, Inc., 2d Dist. Montgomery No. 23980,

, ¶ 44. A

previous supervisor and employer are not liable for damages for the intentional infliction of

emotional distress allegedly caused by an employee’s termination from his at-will

employment. Vickers v. Wren Industries, Inc., 2d Dist. No. 20914,

.

{¶ 70} Construing the evidence most strongly in favor of Dotson, we agree with

the trial court that Dotson failed to raise a genuine issue of material fact regarding extreme

and outrageous conduct. Dotson himself testified that he did not believe that any of 34

Beerbower’s employment decisions with respect to him in the course of Dotson’s

employment were based upon his race (or age). Construing the evidence in a light most

favorable to Dotson, Beerbower’s comments are race (and age) neutral and do not exceed all

possible bounds of decency. Finally, Defendants’ conduct in terminating Dotson’s at-will

employment was based upon his poor performance as a manager and cannot serve as the

basis for a claim of intentional infliction of emotional distress. There being no merit to

Dotson’s fourth assignment of error, it is overruled.

{¶ 71} We will next consider Dotson’s second assigned error, which is as

follows:

“THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT ON

CLAIMS NOT PROPERLY ADDRESSED BY DEFENDANTS.”

{¶ 72} Dotson asserts that Defendants “failed to address or challenge” his claims of

wrongful discharge in violation of public policy, equitable and promissory estoppel, duty of

good faith and fair dealings, negligence, and respondeat superior/ratification. We disagree.

{¶ 73} Regarding Dotson’s claim of wrongful discharge in violation of public

policy, his complaint alleged in Count VI that a “clear public policy exists, and is

manifested in Ohio statutes or administrative regulations, or in the common law, against

terminating an employee who exercises his right to complain to management when subjected

to workplace age and race discrimination and unlawful harassment,” and he cited R.C. 4112

et seq.

{¶ 74} In their motion for summary judgment, Defendants expressly asserted that

“[i]n Counts VI and VIII of his Complaint, [Dotson] alleged that Freight Rite and Beerbower 35

‘retaliated’ against him for complaining of discrimination.” The trial court noted in a

footnote that Defendants adequately addressed this claim in their motion, and we agree. For

the reasons set forth above addressing Dotson’s retaliation claim, the trial court properly

granted summary judgment in favor of Defendants on this claim.

{¶ 75} Regarding Dotson’s claims of equitable and promissory estoppel, Dotson

asserts that Beerbower’s “reference” in his affidavit that Dotson was an employee at-will is

“insufficient under summary judgment law to shift the burden of production,” such that

Defendants were not entitled to summary judgment on these claims.

{¶ 76} As this Court has previously noted:

* * * under certain conditions, an employment-at-will relationship

may be considered to be modified or altered such that the employer's right to

peremptorily discharge an employee is limited. These limitations, i.e.

exceptions to the employment-at-will doctrine, are enumerated in Mers v.

Dispatch Printing Co. (1985),

. Under the first exception,

employee handbooks, company policy, and oral representations may be

sufficient to create implied or express contractual provisions that alter the

terms for discharge. Under the second exception, an employer's right to

discharge may be limited by representations or promises made to the

employee which fall within the doctrine of promissory estoppel.

. Young v. Hobart Bros. Co., 2d Dist. Miami No 89-CA-63,

(Jan. 14, 1991).

{¶ 77} As this Court has further noted: 36

Promissory estoppel is an equitable doctrine. It applies when no

contract has yet been formed, but a promise is made which the promisor

reasonably should expect to induce action or forbearance on the part of the

promisee, and which does induce such action or forbearance. Mers v.

Dispatch Printing Co. (1985),

,

. The

promise will be held to be binding if injustice can be avoided only by its

performance.

If the promise is not then performed, the promisee is entitled

to specific performance and/or damages. Walker v. Univ. Med. Servs., 2d

Dist. Montgomery No. 20141,

.

{¶ 78} “There is no question that, standing alone, praise with respect to job

performance and discussion of future career development will not modify the

employment-at-will relationship.” Helmick v. Cincinnati Word Processing, Inc.,

,

(1989).

{¶ 79} As the trial court found, and Defendants asserted, Dotson was an at-will

employee under Ohio law, and he failed to raise a genuine issue of material fact with any

evidence of a contract or a promise of continued employment. Accordingly, the trial court

properly granted summary judgment in favor of Defendants on Dotson’s estoppel claims.

{¶ 80} Regarding Dotson’s remaining claims of failure to comply with the duties of

good faith and fair dealing, negligence, and respondeat superior/ratification, we note that

Defendants asserted below that these claims lacked factual support and “just do not apply to

our case.” Since discrimination is not shown, we agree that Dotson’s remaining claims2,

2 We note that Dotson does not herein address his claim for reckless 37

which are derivative in nature, fail as well, and in the absence of a genuine issue of material

fact, the trial court properly granted summary judgment to Defendants on these claims.

Dotson’s second assignment of error is overruled.

{¶ 81} Finally, Dotson’s fifth assignment of error is as follows:

“THE TRIAL COURT ERRED IN REQUIRING PLAINTIFF TO PAY

DEFENDANT’S COSTS.”

{¶ 82} We note that Defendants did not respond to Dotson’s final assignment of

error.

{¶ 83} Civ.R. 54(D) governs costs and provides: “Except when express provision

therefor is made either in a statute or in these rules, costs shall be allowed to the prevailing

party unless the court otherwise directs.”

{¶ 84} Dotson asserts that Civ.R. 54(D) applies “only to the prevailing party,” and

that since this matter is pending on appeal, “it would be difficult to understand that the

Defendants in the instant case are prevailing parties inasmusch (sic) the matter will not be

finally set at rest until all appeals are exhausted.” Finally, Dotson asserts that the court

“abused its discretion by acting more than arbitrarily in awarding such costs at this stage of

the proceedings.”

{¶ 85} This Court has previously adopted the following definition of prevailing

party from Black’s Law Dictionary (6 Ed. Rev. 1990) 1188:

The party to a suit who successfully prosecutes the action or

successfully defends against it, prevailing on the main issue, even though not

conduct, malice, and punitive damages. 38

necessarily to the extent of his original contention. The one in whose favor

the decision or verdict is rendered and judgment entered. * * * This may be

the party prevailing in interest, and not necessarily the prevailing person. To

be such does not depend upon the degree of success at different stages of the

suit, but whether, at the end of the suit, or other proceeding, the party who

had made a claim against the other, has successfully maintained it.

As used in Federal Civil Procedure Rule 54(d), which provides that

costs shall be allowed as of course to [the] prevailing party unless [the] court

otherwise directs, “prevailing party” means a party who has obtained some

relief in an action, even if that party has not sustained all of his or her claims.

* * * Woodfork v. Jones, 2d Dist. Montgomery No. 15841,

(Feb. 21, 1997).

{¶ 86} “A trial court’s allocation of costs cannot be reversed absent an abuse of

discretion.”

{¶ 87} As the Supreme Court of Ohio determined:

“Abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is

to be expected that most instances of abuse of discretion will result in

decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.

A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were 39

it deciding the issue de novo, would not have found that reasoning process to

be persuasive, perhaps in view of countervailing reasoning processes that

would support a contrary result. AAAA Enterprises, Inc. v. River Place

Community Redevelopment,

,

(1990).

{¶ 88} Defendants prevailed below, and we cannot conclude that the trial court

abused its discretion in assessing the prevailing parties’ costs to Dotson following the grant

of summary judgment. We note that App.R. 24 governs the assessment of costs on appeal.

{¶ 89} There being no merit to Dotson’s fifth assigned error, it is overruled, and the

judgment of the trial court is affirmed.

..........

FROELICH, J. and WELBAUM, J., concur.

Copies mailed to:

Frank M. Payson T. Andrew Vollmar Hon. Barbara P. Gorman