Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, April 23, 2019

Dan W. Vossman v. AirNet Systems Inc. et al., Case no. 2017-1688
Tenth District Court of Appeals (Franklin County)

Christine House v. Bruce Iacovelli et al., Case no. 2018-0434
Ninth District Court of Appeals (Medina County)

James Miracle v. Ohio Department of Veterans’ Services and Office of the Governor, Case no. 2018-0562
Tenth District Court of Appeals (Franklin County)


Can Deposition Transcript Costs Be Charged to the Losing Party in a Civil Lawsuit?

Dan W. Vossman v. AirNet Systems Inc. et al., Case no. 2017-1688
Tenth District Court of Appeals (Franklin County)

ISSUE:

  • Are the costs for deposition transcripts recoverable by a prevailing party in a civil lawsuit under Ohio law and the rules for civil procedure?
  • Do depositions meet the definition of “proceedings” in R.C. 2303.21 that would allow deposition transcripts to be considered trial transcripts?

BACKGROUND:
In 2011, Dan Vossman, a pilot with AirNet Systems, filed an age discrimination lawsuit against the company for his termination. The case proceeded through discovery and several depositions were taken by both sides. AirNet sought and received summary judgment by a Franklin County Common Pleas Court in 2012.

The decision allowed AirNet to seek reimbursement of certain costs incurred in the case. While its initial request for attorney fees was granted by the trial court, the Tenth District Court of Appeals reversed the decision and denied the fees. AirNet then sought $3,641 for the cost of preparing transcripts of four depositions taken during discovery. The trial court granted the request in 2016, and Vossman appealed the decision to the Tenth District, which affirmed the decision in 2017.

Vossman appealed the decision to the Ohio Supreme Court, which agreed to hear the case.

Deposition Transcript Costs Not Authorized, Worker Argues
Ohio Civil Rule of Procedure 54(D) states: “Costs. 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.” Vossman explains that the Ohio Supreme Court has stated the rule means only costs that are “fixed and taxed” by statute can be charged to the parties in a lawsuit.

Vossman’s attorney argues that he was the prevailing lawyer in a 1998 Ohio Supreme Court case (Williamson v. Ameritech Corp.), in which the Court stated there is no authority under Ohio law that allows the award of deposition expenses to the prevailing party in a lawsuit. Vossman maintains that the ruling decides the issue in this case, and the lower courts side-stepped the decision when awarding $3,641 to AirNet.

Vossman notes the Tenth District found the Williamson decision involved the attempt to recover the costs for paying a court reporter to take depositions under R.C. 2319.27. AirNet is seeking deposition costs under R.C. 2303.21 that covers trial transcripts. The Tenth District followed other Ohio appeals courts in finding that depositions are considered “proceedings” under R.C. 2303.21, and because Williamson didn’t discuss transcript costs, then deposition costs could be included and charged under Civ. R.54(D).

Vossman maintains the Tenth District’s interpretation of Williamson is too narrow, but acknowledges that deposition transcripts count as trial transcripts, under R.C. 2303.21, when they are used during a trial. He notes that happens when witnesses, particularly expert witnesses such as doctors, are unavailable to testify, and the testimony from the witnesses’ depositions are entered into the record during the trial. In this case, the trial court granted AirNet summary judgment, and since no trial occurred, the depositions weren’t used. Vossman asserts that depositions don’t fall under the term “proceedings” as it is used in R.C. 2303.21 because depositions are private arrangements that aren’t overseen by a court official.

Because neither of the two statutes cited by the lower court, nor any other statute, allow for the costs of deposition transcripts not used in trial to be recovered, AirNet isn’t entitled to payment, Vossman argues.

Transcripts Were Used in Case, Repayment Appropriate, Company Asserts
AirNet reiterates the lower court’s position that the Williamson decision is limited to the expense of paying for a court reporter’s attendance at a deposition and doesn’t apply to transcript costs. The company cites R.C. 2303.21, which states: “When it is necessary in an appeal, or other civil action to procure a transcript of a judgment or proceeding, or exemplification of a record, as evidence in such action or for any other purpose, the expense of procuring such transcript or exemplification shall be taxed in the bill of costs and recovered as in other cases.”

AirNet states the law applies to transcripts procured “when it is necessary,” which applies to more than transcripts used in the trial. The company notes that to make its argument for summary judgment, it had to provide the trial court with information taken from the depositions. Court rules required the company to include the deposition transcripts with its arguments for summary judgment, and that means the transcripts were necessary and could be included in the court costs. The company cites the Second District Court of Appeals 2009 Boomshine v. Lifetime Capital Inc. decision, which ruled that depositions are proceedings under R.C. 2303.21 when used as “evidence” and are “necessary.” The company argues its costs for the deposition transcripts that were used are covered by the statute and were correctly included as costs to be paid by Vossman.

Friend-of-the-Court Brief
An amicus curiae brief supporting Vossman’s position has been submitted by Advocates for Basic Legal Equality Inc. The organization is a non-profit law firm serving low-income individuals and groups in 32 northwest and western Ohio counties. The group is concerned that shifting litigation costs in employment discrimination cases to the losing party has a potential chilling effect on the ability of low-income Ohioans to address their issues in court.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Dan W. Vossman: Russell Kelm, 614.246.1000

Representing AirNet Systems Inc. et al.: David Campbell, 216.479.6100

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Can Employee Sue for Wrongful Termination if Law Fines Employer for Reported Conduct?

Christine House v. Bruce Iacovelli et al., Case no. 2018-0434
Ninth District Court of Appeals (Medina County)

ISSUE: Is the jeopardy element of a civil claim for wrongful termination in violation of public policy met when a statute protects the public’s interest, even if the law includes no remedy for an individual employee?

BACKGROUND:
Christine House was employed for nearly seven years as a waitress and then as a lead server at restaurants owned by Windward Enterprises, including Riverstone Taverne in Brunswick. House complained to restaurant manager Bruce Iacovelli that his payroll accounting didn’t accurately reflect the wages and tips she earned.

On Feb. 23, 2015, House was fired. She filed a lawsuit against Windward and Iacovelli alleging that she was fired in retaliation for disputing the payroll process. The lawsuit stated that Iacovelli had admitted he and Windward didn’t pay the unemployment compensation insurance in the amounts required by the state’s Unemployment Compensation Fund, which provides benefits to employees who lose their jobs through no fault of their own. The Ohio Department of Job and Family Services oversees the fund.

House contended that she was wrongfully terminated in violation of the public policy that prohibits employers from firing employees for complaining about the employer’s illegal practices. In November 2016, the Medina County Common Pleas Court dismissed the case before it was considered by a jury, concluding that House hadn’t met the second element in a four-part test for these types of claims.

In response to House’s appeal, the Ninth District Court of Appeals reversed the trial court in February 2018, stating that the second element was met. The appeals court reinstated House’s case to allow it to go to trial.

Iacovelli and Windward appealed to the Ohio Supreme Court, which agreed to review the issue.

Four Elements of Wrongful Termination Claim
The Ohio Supreme Court recognized claims for wrongful termination in violation of public policy in its 1990 decision Greeley v. Miami Valley Maintenance Contrs. A Greeley claim is an exception to employment at-will between employers and employees in the state. The four elements of this common-law tort were adopted in a subsequent case (Collins v. Rizkana in 1995):

  1. That a clear public policy existed and was manifested in a state or 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 termination 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 an overriding legitimate business justification for the dismissal (the overriding justification element).

The first two elements are questions of law that the courts determine, according to the briefs filed in this appeal. A Greeley claims are the subject of Miracle v. Dept. of Veterans’ Srvs., also under review by the Supreme Court during these oral arguments. House’s dispute centers on differing interpretations of the jeopardy element.

State Law Provides Enough Protection of Public Interest, Employer Argues
The parties, the trial court, and the Ninth District agreed that R.C. 4141.20 establishes a clear public policy for employers to accurately report their employees’ wages to the director of job and family services. Iacovelli and Windward also acknowledge that the law doesn’t include any specific remedies for an employee if an employer violates this law. It only penalizes an employer that doesn’t comply with the law.

Iacovelli and Windward maintain, though, that the focus when analyzing the jeopardy element in these types of claims should be on protecting the public’s interest rather than the individual employee’s interest. If the statute protects a public policy for the public overall but offers no remedy for an individual employee, then there isn’t a need to accept an individual employee’s claim of wrongful discharge in violation of public policy, they state.

They note that related statutes allow the job and family services director to work through the Ohio Attorney General’s Office to remedy the violation by pursuing penalties against the employer. This process adequately protects the public interest and deters the employer from the conduct, so House’s claim for wrongful discharge isn’t needed to protect the public’s interest and fails to meet the jeopardy element, Iacovelli and Windward assert.

They ask the Supreme Court to clarify the jeopardy element in Greeley claims and to overrule the Ninth District’s decision.

Employees Alleging Retaliatory Firing Must Have Remedy, Former Server Maintains
If her lawsuit for wrongful discharge in violation of public policy isn’t permitted, the retaliatory dismissal of employees in circumstances like hers jeopardizes the public policy that employers must accurately report their employees’ wages, House contends. Without the Greeley claim as a remedy for employees, employers would have the freedom to fire employees who make complaints about employers that don’t submit the correct amounts to the unemployment compensation fund, House maintains. She argues that even if the state discovered the illegal conduct and fined the employer, no employee would be protected from wrongful termination, and employers could intimidate employees from making complaints.

She also argues that her employer’s position – that the relevant laws protect the public because employers can be fined – can’t be adequate if the interpretation excludes from protection an employee, like her, who has been harmed. But, she asserts in her brief, “[t]he public interest in preventing retaliatory termination in this case is not vindicated by any statute.”

She notes that the Court in Greeley even explained that when a statute’s remedy is only an employer fine without any remedy for an aggrieved employee who is wrongly terminated, public policy requires that the court determine a remedy. House asks the Court to uphold the Ninth District’s decision and send the case back for trial.

Lawyer Groups Say Court’s Decisions Uphold These Claims
The Ohio Employment Lawyers Association and the Ohio Association for Justice have submitted separate amicus curiae briefs supporting House. Both associations back the protections that the Court’s precedent provides against retaliatory terminations that jeopardize important public policies.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Bruce Iacovelli et al.: Steve Bailey, 330.723.4140

Representing Christine House: Michael Conway, 330.220.7660

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Does Former Veterans’ Home Employee Have Right to Sue for Wrongful Termination?

James Miracle v. Ohio Department of Veterans’ Services and Office of the Governor, Case no. 2018-0562
Tenth District Court of Appeals (Franklin County)

ISSUES:

  • Is a civil claim for wrongful termination in violation of public policy, also known as a Greeley claim, permitted under R.C. 124.27 and 124.56 and, more generally, under statutes about public employment?
  • Is the Office of the Governor the employer in this case and subject to the lawsuit?

BACKGROUND:
From 2009 to 2013, James Miracle worked at the Mansfield Correctional Institution. According to the facts presented in Miracle’s lawsuit, a prisoner escaped from the facility in July 2013, and an investigation concluded that Miracle’s violation of a tool inventory policy and falsification of documents played a role in the escape. He and three other employees were fired. He appealed his firing and was reinstated to a position at a Marion prison in December 2014 as part of a settlement.

In February 2015, Miracle started a new job at the Ohio Veterans Home in Sandusky. Before his hiring, Miracle told the home’s superintendent and deputy director about the earlier accusations, firing, and reinstatement. As a new hire, Miracle was on a probationary status for six months.

He states that he received a review during the probation period that indicated he met or exceeded expectations in the various categories. However, he was fired in June 2015.

Probationary Employee Sues, Arguing His Firing Violated Public Policy
Miracle sued the Department of Veterans’ Services and the Office of the Governor in the Court of Claims. He alleged in his July 2016 complaint that one of the governor’s senior advisers requested his termination because of media questions about his hiring in light of the prison escape. Miracle asserted that he was wrongly fired in violation of public policy.

The Court of Claims dismissed the case, determining in part that state law doesn’t convey a clear public policy against firing certain state employees during their probationary status.

Miracle appealed to the Tenth District Court of Appeals, which reversed the Court of Claims. The Tenth District concluded that state law supports this type of claim against public employers when they fire probationary employees who were satisfactorily performing their duties. A claim also could be made because firing employees under these circumstances would jeopardize a public policy described in state law against abuse of power, the Tenth District ruled.

The department and the governor’s office appealed to the Ohio Supreme Court, which agreed to hear the case.

Wrongful Termination Claim Includes Four Elements
The Ohio Supreme Court recognized claims for wrongful termination in violation of public policy in its 1990 decision Greeley v. Miami Valley Maintenance Contrs. A Greeley claim is an exception to the general policy of employment at-will between employers and employees in the state. The four elements of this common-law tort were adopted in a subsequent case (Collins v. Rizkana in 1995):

  • That a clear public policy existed and was manifested in a state or federal constitution, statute, or administrative regulation, or in the common law (the clarity element).
  • That dismissing employees under circumstances like those involved in the plaintiff’s termination would jeopardize the public policy (the jeopardy element).
  • The plaintiff’s dismissal was motivated by conduct related to the public policy (the causation element).
  • The employer lacked an overriding legitimate business justification for the dismissal (the overriding justification element).

The first two elements are questions of law that the courts determine. Greeley claims are the subject of House v. Iacovelli, also under review by the Supreme Court during these oral arguments. The state’s civil service laws, which focus on merit and fitness for a job, constitute an additional exception to employment at-will.

Arguments Reference Two Statutes
R.C. 124.27 describes how individuals are appointed to classified civil service positions. Division (B), which creates a probationary period for these positions, also states: “No appointment or promotion is final until the appointee has satisfactorily served the probationary period. If the service of the probationary employee is unsatisfactory, the employee may be removed or reduced at any time during the probationary period.” Unlike employees who have completed the probation period, probationary employees don’t have the right to appeal their removal to the State Board of Personnel Review.

R.C. 124.56 explains that the board must investigate if it has reason to believe that those with appointment, layoff, reduction, suspension, or removal power have abused their power in violation of R.C. Chapter 124.

Probationary Employees Can Be Fired for Any or No Reason, State Contends
The veterans’ service department and the governor’s office argue that R.C. 124.27, the probationary period statute, doesn’t meet the clarity element required for a Greeley claim.

The statute doesn’t convey a clear public policy against public employers dismissing probationary employees, the department and office maintain. They note that the law empowers, rather than restricts, public employers by permitting them to remove employees. When the Ohio Supreme Court has allowed claims for wrongful discharge in violation of public policy, the relevant statutes prohibited some employer conduct, they contend.

Pointing out that R.C. Chapter 124 allows tenured civil service employees to appeal their removal but doesn’t grant probationary employees the same right, the agency and the office also argue that the difference in remedy indicates that public employers have more discretion when dealing with probationary employees. These employees have an at-will status while on probation, in the state’s view.

Miracle’s claim also fails the jeopardy element, the department and office assert. They contend that probationary employees have other remedies available, so making a Greeley claim is unnecessary. According to the state, the other available remedies are an investigation by the personnel review board based on R.C. 124.56 or filing a writ of mandamus to show the employer abused its authority. A writ would compel an employer to reinstate an employee, the department and the office note. Because these remedies are available, the public policy in the statutes isn’t jeopardized by not allowing Greeley claims, they maintain.

Satisfactory Probationary Employees Can’t Be Fired for Any Reason, Employee Maintains
Miracle counters that R.C. 124.27 creates a clear public policy against terminating employees who do satisfactory work during their probationary period. And R.C. 124.56 conveys a clear public policy against a state employer’s abuse of power, he states. The public policies inherent in these statutes meet the clarity element for a Greeley claim, he indicates.

He maintains that, based on R.C. 124.27, the employer can remove an employee during the probationary period only for unsatisfactory work. However, he argues, his review shows that he met or exceeded expectations in the position. He states that he was actually fired at the direction of the governor’s office, which didn’t want bad press stemming from his association with the prison escape – a step he views as an employer’s abuse of power barred by R.C. 124.56. 

His firing in these circumstances jeopardizes the public policies represented by these statutes, he argues. He adds that common law also gives him a substantive right to pursue the Greeley claim because public policy is jeopardized in his case. If there is a public policy against an employer’s abuse of power in R.C. 124.56, then that policy can’t exempt probationary employees, he asserts. He contends that the gap left by the legislature between R.C. 124.27’s ban on firing probationary employees doing satisfactory work and the remedies offered within the chapter means that he has the right to pursue a Greeley claim.

He notes that part of his original lawsuit asked the Court of Claims to determine whether Jai Chabria, a senior adviser in the governor’s office in 2015, was entitled to immunity for his conduct. That question couldn’t be addressed in a writ of mandamus, so that remedy wasn’t available to pursue, Miracle states.

Authority to Include Governor’s Office in Lawsuit Debated
The veterans’ services department and the governor’s office insist that Miracle can’t sue the governor’s office because that office didn’t have the authority to dismiss him. Even if Miracle’s assertion were true that the governor’s office pressured the home to fire him, the discretion over that decision resided with the veterans’ home superintendent, the state argues. In its view, the governor’s office wasn’t the employer and could be seen only as a third party, whose possible liability must be pursued through a different type of legal claim.

Miracle responds that the governor’s office and Chabria were directly involved in his firing, and he points to a statement from his boss, the home’s superintendent Mick Oppy. Miracle’s brief describes the idea in employment law of joint or integrated employment. The concept considers the integration of the employers, the degree of control one entity has over the employees of another organization, and whether one acts as the agent of another. Miracle maintains that the governor’s office exercised direct control over his employment at the veterans’ home and could be named as a defendant in his lawsuit.

Legal Groups Argue Former Employee Met Criteria to File Suit
As in House v. Iacovelli, the Ohio Association for Justice and the Ohio Employment Lawyers Association each submitted amicus curiae briefs. The organizations support Miracle’s positions.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the Ohio Department of Veterans’ Services and the Office of the Governor from the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980

Representing James Miracle: Sharon Cason-Adams, 614.488.2559

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