IN THE SUPREME COURT OF OHIO

WALLY PATTISON,

Plaintiff-Appellant, Case No. 07-1345

V.

W.W. GRAINGER, INC., et al.,

Defendants-Appellees.

On Appeal from the Cuyahoga CountyCourt of Appeals, Eighth Appellate District

APPENDIX TO MERIT BRIEF OF DEFENDANTS-APPELLEES,W.W. GRAINGER, INC. AND SAM DIMEO

Page

Complaint and First Set of Discovery Requests to Both Defendants 1-6(May 6, 2003)

Defendants' Motion for Stunmary Judgment 7-22(May 14, 2004)

Judgment Entry (Cuyahoga County) 23 - 29(June 21, 2005)

Journal Entry and Opinion (Eighth District) 30 - 34(April 24, 2006)

Notice of Dismissal of Plaintiffs Public Policy Claim Only 35-36(June 29, 2006)

Notice of Appeal 37 - 46(August 9. 2006)

Court of Appeals Judgment 47 - 55(June 21, 2007)

Civil Rule 41 and Staff Notes 56-57

IHI11I]86i0 1

JAN 1$ 2008

CLERK OF COURTSUPREME COURT OF OHIO

Respectfully submitted,

James E. Davidson (0024534) (COUIV^EL OF RECORD)Aaron L. Granger (0067562)Schottenstein, Zox & Dunn Co., L.P.A.250 West Street, Suite 700Columbus, OH 43215Telephone: (614) 462-2700Fax: (614) 462-5135i davidson(a^,szd. coma rgan¢ergszd.com

COUNSEL FOR DEFENDANTS-APPELLEES,W.W. GRAINGER, INC. AND SAM DIMEO

(Hi1 [1786.101 ii

CERTIFICATE OF SERVICE

I hereby certify that the foregoing was served this

regular U.S. mail, postage pre-paid, upon the following:

day of January, 2008, by

Caryn M. Groedel, Esq.Jennifer L. Speck, Esq.Caryn Groedel and Associates Co., LPA5910 Landerbrook Dr., Suite 200Cleveland, Ohio 44124Telephone: (440) 544-1122Fax: (440) 446-1240c rog edelna p-roedel-law.coniispeck@groedel-law.com

Attorneys for Plaintiff-Appellant

tniiii7sn.ioi 131

IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO

WALLY PATTISON21526 Aberdeen RoadRocky River, Ohio 44116

CASE NO.

Plaintiff,

V9.

W.W. GRAINGER, INC.100 Grainger ParkwayLake Forest, Illinois 60045-5201

Serve:CT Corporation System1300 E. 9'h Street, Suite 1010Cleveland, Ohio 44114

and

SAM DiMEOc/o W.W. Grainger, Inc.1035 Valley Belt Rd.Brooklyn Heights, OH 44131

Defendants.

Judge: NANCY A FUERST

IuIAII^IIWI^IIVIIIIIIIII^IIIIIIBIlllllllilll CV 03 500620

COMPLAINT AND FIRSTSET OF DISCOVERYREOUESTS TO BOTHDEFENDANTS(Jury Demand EndorsedHerein)

Now comes Plaintiff, Wally Pattison, by and through the undersigned counsel,

and for a complaint against Defendants W.W. Grainger Inc., and Sam DiMeo, states and

alleges the following:

PARTIES

I. At all times relevant herein, Plaintiff was a resident of Cuyahoga County.

2. At all times relevant herein, Defendant W.W. Grainger, Inc. (hereina8er

"Grainger") conducted business in Brooklyn Heights, Cuyahoga County, Ohio.

Appx.000001

3. At all times relevant herein, Plaintiff was employed by Defendant W.W.

Grainger, Inc. (hereinafter "Grainger") as a sales representative in the Cleveland District.

4. At all times relevant herein, Defendant Sam DiMeo was Defendant

Grainger's District Sales Manager for the Cleveland area and was Plaintiff's direct

supervisor.

VENUE

5. Venue properly lies in this Court, as all events relevant to the claims

brought herein took place in Cuyahoga County.

FACTUAL ALLEGATIONS

6. Plaintiff, age 50 at the time of his termination, is a member of a protected

class pursuant to Ohio Rev. Code § 4112.

7. Plaintiff had worked for Defendant Grainger since 1991, and worked for its

predecessor entity since approximately 1975.

8. Tn or around May 2001, Defendant Sam DiMeo became Plaintiff s direct

supervisor when Mr. DiMeo assumed the position of District Sales Manager.

9. Shortly after Defendant DiMeo became Plaintiff's supervisor, Defendant

DiMeo took numerous adverse employment actions against Plaintiff, including but not

limited to: giving Plaintiff performance wamings for not meeting goals when similarly

situated younger employees under age 40 were routinely not meeting goals and, upon

information and belief, did not receive performance warnings; telling Plaintiff there were

no available Cleveland Indians tickets for his clients and then giving the tickets to

Plaintiff's younger counterparts; taking potentially significant accounts away from

2

Appx. 000002

Plaintiff and giving them to younger counterparts; and tenninating Plaintiff s

employment on January 7, 2003, despite a significant rise in his performance numbers

shortly before his termination and despite the fact that younger, similarly situated

employees had worse sales performance numbers but were not terminated.

10. Plaintiff was qualified to perform his job duties.

11. After his termination, Plaintiffs job responsibilities were given to two

significantly younger employees.

12. PIaintiff s termination allowed Defendant Grainger to retain significantly

younger, similarly situated sales representatives, many of whom were not in the protected

class of 40 and above.

13. In addition to terminating Plaintiff, Defendants terminated or caused to

resign numerous sales representatives in the Cleveland District who were all over 40,

including but not limited to Kevin Berger, Doug Cisan, Jerry McCombs, Jim Sitko, Jim

Bourquin, and Dale Palocko.

14. Also, the sales numbers of Brian Waldron, a similarly situated but

significantly younger co-worker, were down, yet he was promoted while Plaintiff was

fired.

COUNT ONE(Age Discrimination)

15. Plaintiff reavers and realleges each and every paragraph above as if fully

set forth herein.

16. Plaintiff, a member of a protected class, was qualified for the position of

sales representative.

3Appx.000003

17. Age was a motivating factor in Defendants' decision to terminate

Plaintiffs employment, and he was replaced by significantly younger and less qualified

employees.

18. Plaintiff s termination also ailowed the retention of other sales

representatives under the protected age of 40.

19. The actions of Defendants described above in paragraphs one (1) through

seventeen (17) hereinabove constitute age discrimination in violation of Ohio Rev. Code

§ 4112.02(A).

20. The discriminatory conduct described above was engaged in recklessly,

maliciously, and intentionally.

21. Plaintiff has a remedy against Defendants pursuant to Ohio Rev. Code §

4112.99.

22. As a result of the foregoing actions of Defendants, Plaintiff has suffered

damages including but not limited to loss of wages and mental anguish in an amount in

excess of Twenty-Five Thousand Dollars ($25,000.00).

COUNT TWO(Violation of Public Policy)

23. Plaintiff reavers and realleges each and every paragraph above as if fully

set forth herein.

24. Terminating Plaintiff s employment as described hereinabove constitutes a

violation of Ohio's public policy as set forth in the Age Discrimination in Employment

Act, 29 U.S.C. §§ 623 et seq., and as set forth in Ohio Revised Code §§ 4112.02 et seq.

4

Appx.000004

25. Defendants' conduct as set forth above was willful and intentional and of the

nature for which Plaintiff is entitled to recover punitive damages, including his

reasonable and necessary attomey's fees, expert fees and the cost of this action, in an

amount to be determined at trial.

26. As a result of the foregoing actions of Defendants, Plaintiff has suffered

damages including but not limited to loss of wages and mental anguish in an amount in

excess of Twenty-Five Thousand Dollars ($25,000,00).

WHEREFORE, Plaintiff respectfully prays that this Court:

A. Order to make Plaintiff whole by providing compensation for violation of

his civil rights, emotional distress and punitive damages in an amount in excess of

$25,000.00;

B. Award Plaintiff appropriate back pay, front pay, and reimbursement for

lost wages in an amount to be proven at trial;

C. Grant to Plaintiff his attorney's fees, costs, and disbursements;

D. Award pre- and post-judgment interest at the rate of ten percent (10%) per

annum; and

E. Grant such further and additional relief as this Court deems just and

proper.

Respectfully submitted,

Caryn M. Gro6del (00601^1)David J. Steiner (0075217)

5

Appx.000005

Caryn Groedel & Associates LPA Co.3681 Green Road, Suite 410Beachwood, Ohio 44122216-831-7077Attomeys for Plaintiff

JURY DEMAND

Plaintiff hereby demands a trial by jury on all issues so triable.

6

Appx.00D006

IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO

WALLY PATTISON, -

Plaintiff, Case No. CV-03-500620

V.

W.W. GRAINGER, INC., et. al.,

Defendants.

RECEIVED

MAY 1 7 2004

A.L.G.

JUDGE NANCY A FUERST

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Pursuant to Rule 56 of the Ohio Rules of Civil Procedure, Defendants W.W. Grainger

Inc. and Sam DiMeo respectfully move the Court for an order in their favor granting summary

judgment against the Plaintiff. This Motion is based upon the pleadings, depositions, and the

accompanying Memorandum and attachments thereto.

Respectfully submitted,

SCHOTTENSTEIN, ZOX & DUNN

E. Davidson, Esq. (0024534)Aaron L. Granger, Esq. (0067562)Schottenstein, Zox & Dunn, L.P.A.250 West StreetColumbus, Ohio 43215(614) 462-2700(614) 462-5135

Attorney for Defendants,W.W. Grainger Inc. and Sam DiMeo

OF COUNSEL

Henry F. Galatz, Esq.W.W. Grainger, Inc.100 Grainger ParkwayLake Forest, IL 60045-5201

{NOC15IB5.3 )

Appx.000007

MEMORANDUM IN SUPPORT

I. INTRODUCTION

This case is about a sales employee who was terminated for non-performance after failing

for five consecutive years to meet the legitimate business goals set by Defendant, W.W.

Grainger, Inc. ("Grainger"). Plaintiff, Wally Pattison ("Pattison") was the only territory manager

in his district whose performance fell below Grainger's sales goals five years in a row. Pattison

asserts that younger similarly situated employees with equal or inferior sales perfonnances were

treated better. (Complaint, ¶9).' As the following Memorandum illustrates, there is no similarly

situated younger employee that failed to meet the legitimate business goals of Grainger five

years in a row. Pattison's lack of performance puts him in a class all by himself.

H. STATEMENT OF FACTS

Grainger is a national leader in the distribution of maintenance, repair and operating

supplies to the commercial, industrial, contractor, and institutional markets in North America.

The Company operates exclusively as a distributor, and its catalog contains thousands of brand

name products. The Company's sales efforts are supported by over thirteen thousand sales

people, employed throughout the country.

1 This is the second case where a poor performing sales employee has attempted to explain bad results with legalclaitns. Indeed, Pattison is also represented by counsel for Anthony Stefanski whose complaint was dismissed byJudge Gaughan in Case No. 1 :02CV 1163, United States District Court, Northem District of Ohio. That case raisedsimilar age related discrimination claims against Grainger but was disnussed on summary judgment. JudgeGaughan found that Stefanki could not identify a sitnilarly situated employee to establish his prima facie casebecause Stefanski failed to show that all relevant aspects of his situation were nearly identical to that of theemployees who were allegedly treated better.

Using just three examples Judge Gaughan found that younger employees did not fail to achieve their sales goals forseveral preceding years like Stefanski; there was no evidence that the younger employees had trouble meetingdeadlines for monthly expenses and reports; and younger employees had not received any customer complaints. SeeAppendix A, Judge Gaughan's Memorandum of Opinion and Order page 24-25.

(HO415)85.1 ) 2

Appx.000008

Pattison was bom December 30, 1952. (Pattison Dep. p. 112).2 His first job out of

college was working for his family's business, Pattison Supply Company. (Pattison Dep. p. 55).

Grainger purchased Pattison Supply Company around 1990. (Pattison Dep. p. 7). Between 1990

and 1994 Pattison Supply Company was doing business as Bossert Industrial Supply, a name

given to a collection of companies purchased by Grainger. (Pattison Dep. p. 70-71). At the time

of the acquisition, Pattison was working as an outside sales employee and retained 16 shares of

Pattison Supply Company for which he was compensated. (Pattison Dep. p. 56 - 58). Pattison's

position as a sales representative did not change after the Grainger acquisition. (Pattison Dep. p.

69 and 73-74).

Pattison's immediate supervisor after the acquisition by Grainger was Anthony Stefanski.

(Pattison Dep. p. 60). Pattison subsequently reported to Mike Haskins, Mark Lysaght, Jim

Musbach, and Sam DiMeo. (Pattison Dep. p. 74). However, Pattison's age discrimination

claims relate exclusively to Sam DiMeo's supervision of him beginning in May of 2001.

(Pattison Dep. p. 75-76; DiMeo Affidavit ¶ 13).

Pattison recognizes that his sales goals were not set by DiMeo (Pattison Dep. p. 78;

DiMeo Affidavit 14); and Pattison admits that he did not meet Grainger's sales goals for five

consecutive years beginning in 1998. (Pattison Dep. p. 83-85; Pattison Dep. Ex. 1). In addition

to DiMeo's documentation of Pattison's poor performance, two of Pattison's prior supervisors,

Mark Lysaght and Jim Musbach, documented Pattison's poor performance. However, Pattison

References to the deposition transcript of Wally Pattison and exhibits from it will be denoted as "(Pattison Dep. p.^ and (Pattison Dep. Ex._J." The deposition is being filed along with this Motion for Summary Judgment.

A facsimile of Sam DiMeo's affidavit is attached as Appendix B. The original will be filed hereafter when it is

received.

XO41 518S3 ) 3

Appx.000009

stated that he has no reason to believe that Mark Lysaght or Jim Musbach discriminated against

him based upon his age. (Pattison Dep. p. 153-154).

In a November 15, 1999 letter captioned "Re: Sales Performance" Lysaght warned

Pattison to establish over 5% growth in his accounts in the last two months of the year or he

would begin counseling statements with Pattison. (Pattison Dep. p. 150; Pattison Dep. Ex. 2).

That letter also wamed that Pattison was in jeopardy of ending the year under the annual goals

set by Grainger for the second consecutive year. Ultimately, Pattison failed to achieve the

annual sales goal for the second year in a row. In a January 28, 2000 letter captioned "Re: 1999

Sales Performance Follow Up" Pattison was informed that counseling statements would begin.

(Pattison Dep. p. 151-152; Pattison Dep. Ex. 3). That same letter put Pattison on notice that if he

did not meet the sales performance by the end of the first quarter disciplinary action would be

taken up to and including termination.

Lysaght acknow]edged Pattison's effort to increase his sales in a May 15, 2000 letter

captioned "Re: Congratulations" for being above the sales goals at that point in the year.

(Pattison Dep. p. 152-153; Pattison Dep. Ex. 4). However, by the end of 2000 Pattison fell

below the sales goals for a third consecutive year.

When Musbach became Pattison's supervisor he also documented the poor performance

of Pattison. In a February 5, 2001 letter captioned "2001 Performance Expectations" Musbach

put Pattison on notice of Grainger's expectations to be achieve by the end of 2001. (Pattison

Dep. p. 154; Pattison Dep. Ex. 5).

After DiMeo took over as Pattison's immediate supervisor in May of 2001, DiMeo began

documenting Pattison's unsatisfactory performance. (Pattison Dep. Ex. 6). Among the

substantial list of things documented, none of the following performance issues are in dispute:

(II0415195.3 ) 4

Appx.000010

• Pattison admits that he made an error by failing to submit a timely bid to the City of

Cleveland for lighting that was worth One Hundred and Fifty Thousand Dollars

($150,000) in business to Grainger. (Pattison Dep. p. 157; Pattison Dep. Ex. 6).

• Despite being told by DiMeo on October 4, and 18, 2001 not to submit any large bids

without involving DiMeo, Pattison did not involve DiMeo in a bid he submitted to the

City of Cleveland for shelving. (Pattison Dep. p. 168-167; Pattison Dep. Ex. 6).

• Pattison did not attend a conference call that was held regarding a tool promotion

Grainger was launching. (Pattison Dep. p. 170-17 1; Pattison Dep. Ex. 6).

• Pattison did not pick up a sample of a tool that he was supposed to promote with his

existing accounts. (Pattison Dep. p. 173; Pattison Dep. Ex. 6).

• Pattison told DiMeo that Pattison "threatened" one of Grainger's customers in Cleveland

to get the customer to purchase three tools. (Pattison Dep. p. 172-173; Pattison Dep. Ex.

6).

However, DiMeo did not simply document Pattison's poor performance. DiMeo also

attempted to counsel Pattison on how to increase sales both formally and informally. Despite the

sincere attempts by DiMeo to help, Pattison failed to meet the annual sales goals in 2001 and

2002.

In 2002, DiMeo also conducted an annual performance review that documented

Pattison's lack of performance. (Pattison Dep. p. 205; Pattison Dep. Ex. 10). DiMeo also

provided Pattison with a letter dated August 14, 2002, outlining DiMeo's expectations of

Pattison. (Pattison Dep. p. 202-203; Pattison Dep. Ex. 9). Due to Pattison's unsatisfactory

performance for five consecutive years and other performance issues, Pattison was terminated by

DiMeo on January 7, 2003.

p104 15185.3) 5

Appx. 000011

111. LAW AND ARGUMENT

Standard of Review

The Defendants are entitled to summary judgment on Pattison's Complaint because there

are no genuine issues of fact or theories of law which support his claims. Ohio Civil Rule 56(c)

provides that summary judgment shall be rendered where the pleadings, depositions, answers to

interrogatories, admissions, together with affidavits, "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."

Ohio Courts have consistently looked to federal law for guidance when considering

claims of employment discrimination brought under the Ohio Revised Code. Coryell v. Bank

One Trust Company, 2004-Ohio-723 (adopting the federal standard for establishing the forth

prong of the prima facie case for age discrimination claims); Plumbers & Steamfitters Joint

Aonrenticeship Conunt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St.2d 192, 196, 421 N.E.

2d 128, 131 (concluding that the evidentiary standards applicable to Title VII of the Civil Rights

Act of 1964 were applicable to ascertaining whether a violation of Ohio Revised Code Chapter

4112 occurred); Republic Steel v. Ohio Civil Rights Comm. (1975), 44 Ohio St.2d 178; and

Weiner v. CuYahoga Community College District (1969), 19 Ohio St.2d 35. There are several

federal cases that provide guidance for the analysis to be used in this case.

In regard to motions for summary judgment the United States Supreme Court has said

th at:

Summary judgment procedure is properly regarded not as a disfavored proceduralshort cut but rather as an integral part of [the rules of civil procedure] as a whole,which are designed to secure the just speedy, and inexpensive determination of

every action.

Celotex Corp. v. Catratt ( 1986), 477 U.S. 317, 327 (citation omitted).

;HO<1s195. J 1 6Appx.000012

In order to secure summary judgment, a defendant does not have the burden of proof, but

is only required to show that there is no evidence to support the plaintiffs claim. Id. at 323. The

plaintiff bears the burden of going outside the pleadings and presenting admissible evidence

demonstrating that specific facts exist which raise genuine issues for trial. Id. at 324. A mere

scintilla of evidence is not enough, and the non-moving party must do more than simply show

that there is some metaphysical doubt as to the material facts. Matsushita Electrical Industrial

Co, v. Zenith Radio Corp. (1986), 475 U.S. 574, 585-86 . Application of these principles to the

facts and allegations in this case compels the conclusion that summary judgment is appropriate.

A. Pattison Cannot Establish an Age Discrimination Claim

Pattison does not allege that any action taken by Grainger adversely affected a class of

persons, but that he, personally, was the subject of discrimination based upon age. As such, this

is a "disparate treatment" case, rather than a "disparate impact" case. In a disparate treatment

case the Ohio Supreme Court has held that a plaintiff bears the burden of establishing the

existence of discriminatory motive. Little Forest, Medical Center v. Ohio Civil Riehts

Commission (1991), 61 Ohio St.3d 607, 611, 575 N.E. 2d 1164, 168. Discriminatory motive can

be established either by direct or circumstantial evidence. Pattison has no direct evidence of any

discriminatory motive based upon age.

Circumstantial evidence of discriminatory motive can be shown through the tripartite

analysis established under McDonnell-Douglas Corp. v. Green (1973) 411 U.S. 792, 801; Texas

Deyt of Community Affairs v. Burdine (1981), 450 U.S. 248, 256-58. Under McDonnell-

Douelas the Plaintiff must first establish a prima facie case of discrimination. If the plaintiff can

establish a prima facie case, the defendant can refute the plaintiff's case by articulating a

legitimate non-discriminatory reason for the action taken against the plaintiff. When the

M04151B5.1)

Appx.000013

defendant bas articulated a legitimate non-discriminatory reason, the plaintiff must show that the

defendant's proffered reason is merely a pretext for unlawful discrimination.

The McDonnell-Douglas framework for establishing discriminatory motive through

circumstantial evidence has been adapted by federal courts to claims brought under the Age

Discrimination in Employment Act of 1967 ("ADEA"). In tum, the Ohio Supreme Court has

applied the McDonnell-Douglas framework to age discrimination claims brought under the Ohio

Revised Code. Baker v. Scovill. Inc. (1983), 6 Ohio St.3d 146, 451 N.E.2d 807; and

Kohmescher v. KroQer Co. (1991), 61 Ohio St.3d 501, 575 N.E.2d 439. Using this framework

Pattison cannot establish a disparate treatment case because he has no direct evidence of age

discrimination, he fails to establish a prima facie case of age discrimination, and he is unable to

show that Grainger's legitimate non-discriminatory reason for terminating him (i.e., failing to

achieve sales goals five years in a row and other performance related issues) was merely a

pretext for illegal age discrimination.

B. Pattison Has No Direct Evidence of Discrimination

"Direct evidence of discrimination allows a plaintiff to proceed without meeting the

requirements of a prima facie case as set forth in the tripartite analysis established under

McDonnell Douglas." Ang v. Procter & Gamble, 932 F.2d 540, 549 (citing Trans World Airlines

v. Thurston, 469 U.S. 111 (1985)). Pattison has not alleged any incidents that could lead a

reasonable person to believe that the actions taken by DiMeo or Grainger were motivated

because of Pattison's age. "The plaintiff at all times carries the ultimate burden of proving

discrimination." Jackson v. RKO Bottlers of Toledo, ]ne., 743 F.2d 370, 375 (6th Cir.1984),

(citing Havnes v. Miller, 669 F.2d 1125, 1126-27 (6th Cir.1982)).

MOa15185) ^ 8Appx.000014

Pattison has no direct evidence to show that there was any discriminatory animus against

him based upon his age. Pattison testified that he cannot recall DiMeo ever making any age-

related comments about Pattison or any other employee at Grainger. (Pattison Dep. p. 108-109).

This is significant because DiMeo is the one who made the decision to terminate Pattison.

Therefore, there is no direct evidence to lead a reasonable person to believe that age was a

motivating factor in DiMeo's decision to terminate Pattison. As stated in Peters v. Lincoln

Electric Co., 285 F.3`d 456, 477-478 (Sixth Circuit Sir. 2002) (citing Coolev v. Carmike

Cinemas, Inc., 25 F.3d 1325 (Sixth Circuit. Sir. 1994)), four factors are to be evaluated in

considering allegedly age biased remarks:

Whether the statements were made by a decision/maker or by an agentwithin the scope of his employment;

2. Whether the statements were related to the decision/making process;

3. Whether the statements were more than merely vague, ambiguous, orisolated remarks;

4. Whether they were made proximate in time to the act of termination.

Age was not a factor that DiMeo considered when he made his decision to terminate

Pattison. (DiMeo Affidavit ¶5). Therefore, having failed to establish direct evidence of age

discrimination, Pattison can only establish a prima face case under the McDonnell Douglas

framework for circumstantial evidence.

C. Pattison Cannot Establish He Was Qualired for the Position

In order to establish a prima facie case of age discrimination a plaintiff must demonstrate

that he or she: "(1) was a member of the statutorily protected class, (2) was discharged, (3) was

qualified for the position, and (4) was replaced by, or the discharge permitted the retention of, a

person of substantially younger age." Coryell at ¶20. Pattison is unable to show that he is

(HOA15185.3 1 9

Appx. 00D015

qualified for the position and there is no material issue of fact with respect to that element of his

prima facie case.

The courts recognize that an employee is not qualified for the position where the

employer can demonstrate that the employee was not performing "at a level which met [the]

employer's legitimate expectations." Ang v. Proctor & Gamble Co., 932 F.2d 540, 548-549 (6th

Cir. 1991) (citing McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (6th Cir. 1990)). Ohio

courts have adopted the employer's legitimate expectations test in determining whether the

plaintiff has established that he is qualified under the discrimination laws. Neubauer v. A.M.

McGregor Home Coro. (Ohio App. 8 Dist.), 1994 WL 197221. This is consistent with a long

and unbroken line of federal cases which use the same standard in judging "qualification" under

the ADEA. See e.g., Danielson v. City of Loraine, 938 F.2d 681, 683 (6th Cir. 1991); Gyu^yik

v. Precise Tool & Die Co., 829 F.2d 38 (6th Cir. 1987); Wilkins v. Eaton Corp., 790 F.2d 515

(6th Cir. 1986); Wheelwright v. Clairol, Inc., 770 F.Supp. 396, 400 (S.D. Ohio 1991).

Applying the legitimate expectations test here, Pattison cannot establish that he was

qualified for his position because he cannot overcome uncontroverted evidence that he failed to

meet the sales goals of Grainger for five consecutive years in a row. Additionally, many of the

performance issues DiMeo brought to Pattison's attention by were readily acknowledged by

Pattison. (Pattison Dep. p. 157, 168-169, 170-171, 172-173; Pattison Dep. Ex.6). Undisputed

facts establish that Pattison failed to achieve his sales goals five years in a row. (Pattison Dep. p.

83-85; Pattison Dep. Ex. 1).

Pattison was warned frequently, both formally and informally, to increase his sales to

meet the goals set by Grainger. (Pattison Dep. Ex. 2, 3, 7, 9 and 10). In fact, Pattison admits

that he had knowledge of this deficient performance. DiMeo noted that on August 21, 2002,

(H04I51853 ) 10Appx. 000016

when he phoned Pattison and asked him if he sent his GAP Closure form, Pattison responded

that he did not finish the Closure fonn, had no excuse for why it had not been done, and stated

"Sam, I am lost out here". (Pattison Dep. p. 191; Pattison Dep. Ex. 6). Although Pattison states

that he does not remember saying those exact words, he testified that his statements were made

with the effect of asking DiMeo for help.

Despite DiMeo's attempts at counseling, as documented in Pattison's Deposition Ex. 6,

Pattison's annual sales never reached the expectation level set by Graitrger. In addition to that,

Pattison had a wide variety of performance problems, including failing to submit a timely bid

that was worth One Hundred and Fifty Thousand Dollars ($150,000.00); refusing to involve his

supervisor in large bid project; not attending new promotional meetings for the sales team; and

not showing the promotional tool to existing clients.

Accordingly, as a matter of law, Pattison cannot establish that he was qualified for his

position, and cannot carry his prima facie burden.

D. Pattison Cannot Identify a Similarly-Situated Employee Who Was TreatedBetter

Since the adoption of the McDonnell Douglas framework by Ohio courts, plaintiffs

alleging disparate treatment cases have also been required to prove that they were being treated

differently than similarly situated employee's "outside of the protected class." Cummings v.

Sears. Roebuck & Co., (Ohio App. 8 Dist.) 2002-Ohio-5078 citing Mitchell v. Toledo Hosp.

(C.A. 6, 1992), 964 F.2nd 577. With the Ohio Supreme Court's recent holding in Coryell, the

plaintifPs burden in a disparate treatment case is now only slightly modified to require a

showing that the plaintiff was treated differently than a similarly situated employee "of

substantially younger age." Lange v. Honda of America MfR., Inc., (Ohio App. 3 Dist.), 2004-

Ohio-2060 citing Policastro v. Northwest Airlines. Inc. 297 F.3d 535 (6`' Cir. 2002).

{Hwi5185.3 ) 11Appx.000017

There is no employee with performance that is even remotely substantially similar to

Pattison. When asked to identify younger employees that were treated better than him, Pattison

could not identify a specific person but stated that he would simply refer to Pattison's Dep. Ex. 1

(Pattison Dep. p. 218;). Pattison Dep. Ex. 1 speaks for itself, and is the strongest evidence as to

why there is no similarly situated employee to Pattison, that was treated better. With the

exception of Pattisson, Pattison Dep. Ex. 1 does not show anyone that failed to achieve the sales

goals of Grainger for five years in a row who was not terminated, regardless of the person's age.

Pattison must show that the comparables are similarly situated in all respects, absence

other circumstantial or statistical evidence supporting an inference of discrimination. Lange v.

Honda of America Mfg., Inc., (Ohio App. 3 Dist.), 2004-Ohio-2060. Unlike many cases where

the termination decision was made based upon very subjective criteria, this case presents itself in

a very unusually clean manner. The poor sales performance by Pattison is undisputed. Pattison

himself testified that from the Company's perspective, you either make goal or you don't,

regardless of how much you were over or under that goal (Pattison Dep. p. 142). There is

nothing Pattison can do to escape his poor perfonnance over the last five years of his

employment.

The only other circumstantial information that Pattison offers to allegedly explain his

desperate treatment, is that he had four accounts taken away from him and given to younger

employees. These four accounts were the Cleveland Plain Dealer, Horsborg & Scott, American

Greetings, and KM&M (Pattison Dep. p. 120-124). Of the four accounts Pattison listed, he

received Thirty Thousand Dollars ($30,000.00) in annual revenue from the Plain Dealer, Thirty

Thousand Dollars ($30,000.0) from Horsborg & Scott, Fifteen to Eighteen Thousand Dollars

($15,000.00-$18,000.00) from American Greetings, and Thirty-Five Thousand ($35,000.00)

p1o41 5135 1^ 12

Appx.000018

from KM&M. These four accounts represented One Hundred and Thirteen Thousand Dollars

($113,000.00) of his annual revenue for 2002, which was 3.5 Million Dollars (Pattison Dep, p.

120). That was less than the One Hundred and Fifty Thousand ($150,000.00) Pattison missed

out on when he failed to submit a timely bid to the City of Cleveland. This also represents four

accounts out of Pattison's total of Two Thousand Four Hundred (2,400) individual accounts

(Pattison Dep. p. 123).

Taking these four accounts from him does not create a material issue regardless of whom

the accounts were given. The suggestion that these four accounts were taken away fxom him

because of his age lacks any foundation. In fact, Pattison acknowledged that when a new District

Sales Manager comes in to a new district, some accounts are moved around. (Pattison Dep. p.

117).

E. Defendant Had a Leeitimate Nondiscriminatory Reason for Its Action,

Which Was Not Pretextual

Even if the Court finds that Pattison can prove a prima facie case of age discrimination,

Defendants have a legitimate non-discriminatory reason for their actions. See Fumco

Construction Corp. v. Waters, 438 U.S. 567, 578 (1978), (quoting, McDonnell Douglass Corp,

411 U.S. at 802). Pattison's three most recent supervisors documented Pattison's poor

performance since 1998. Pattison was the only territory manager in his district to fail to meet the

sales goals of Grainger over the same five consecutive year period. Performance problems are a

legitimate non-discriminatory reason for termination. Pattison does not dispute that these

problems existed. Further, an employer has the right to make business decisions, like this one,

for good reason, bad reason, or no reason at all, absent intentional discrimination. Murray v.

Sears Roebuck & Co., 722 F. Supp., ]500, 1506 (N.D. Ohio 1989).

(HOe15195J 1 13Appx.000019

Pattison has no evidence that the decision to terminate him was motivated by his age.

When confronted with the objective evidence supporting the Company's business decision,

Pattison is unable to respond with admissible facts supporting his claims; rather, he relies only

upon conjecture and speculation, which will not create a triable issue of fact. See Ackerman v.

Diamond-Shamrock Corp., 670 F.2d. 66, 69-70 (6`h Cir. 1982) (intentional discrimination cannot

be proven by conclusory allegations made by the Plaintiff); Locke v. Commercial Union

Insurance Co., 676 F.2d. 205 (6"` Cir. 1982) (self-serving statements that Plaintiff believes she

was discriminated against because of her race are not enough); Mitchell v. Toledo Hospital, 964

F.2d 577,585 (6`h Cir. 1992) (rumors, conclusory allegations and subjective beliefs are wholly

insufficient to establish a claim of discrimination as a matter of law).

Without any evidence to support PlaintifPs subjective allegations of bias, he cannot

discredit the Company's reason for terminating him.

For all these reasons, Plaintiffs claim for violation of a public policy prohibiting age

discrimination in employment must also fail.

VI. CONCLUSION

For all of the reasons set forth above, the Defendants respectfully submit that they are

entitled to an order granting summary judgment in their favor and against Plaintiff Wally

Pattison.

(N0415185.3 f 14Appx,000020

OF COUNSEL

Henry F. Galatz, Esq.W.W. Grainger, Inc.100 Grainger ParkwayLake Forest, IL 60045-5201

Ma15165.3 )

Respectfully submitted,

SCHOTTENSTEIN, ZOX & DUNN, L.P.A.

es E. Davidson, Esq. (0024534)Aaron L. Granger, Esq. (0067562)Schottenstein, Zox & Dunn, L.P.A.250 West StreetColumbus, Ohio 43215(614) 462-2700(614) 462-5135

Attorney for Defendants,W.W. Grainger Inc, and Sam DiMeo

15Appx. D0D021

CERTIFICATE OF SERVICE

I hereby certify that the foregoing was served, this // -day of May, 2004, by U.S.

regular mail, postage prepaid, upon the following parties:

Caryn M. Groedel (0060131)5910 Landerbrook Drive, Suite 200Cleveland, Ohio 44124(440) 544-1122

Attorney for Plaintiff

(HD<15195.3 I 16Appx.000022

STATE OF O910 IN THE COURT OF COMMON PLEASYhh SS:

CLTYAHOGA COIINTY CASE NO: CV 03-500620

WALLY PATTISON

Plaintif

.fIIDGMENT +IIN7RY)

W.W. GRAINGER, INC., et al.,

Defendanfs

Plaintiff employee W y Pa.tbson filed clain,s ao inet fnrmer employer W.W. Grainger

and supervisor Sam DiMeo eging a cin:ennstanti^ case of age disr^,; ina+ion in violahon of

RC. 4112.02. After wo ' fot Crrainger and its predecessor company for 27 years, tbe 50

ed on 7anuary 7, 2003, after 5 years of poor sales pecformance.

Paliison claims thaf he was e.nainaYed and replaced by Tohn Wanbainen (age 40), Lisa Marie

Duke (age 30) and Jim FIop (age 38).

Defendants W.W. ' et, Tne. and Sam Di,^l.co moved for smary judgmenT arguing

that Pat4son was for legitimaPe reaSons and cannot make a case for age

diBcliminaSipn.

Under Civ. R 56, ary judgment is appiopriate when (1) no gennine issne as to any

materisl fact exists, (2) the arty movmg for s+mn^ary judgnent is entifled to judgr.nent as a

matter of law, and (3) ' g the evidence most sh^ongly in favor of thc non-moving pariy,

reesonable minds can only r ch one conclusion whidh is adverse to the non-moving party.

Appx.000023

The moving party arries an initial burden of setting forth specific facts which

demonstrate his entitlement c„mmary judgment Dresher v. Burt (1996), 75 Ohio St 3d 280,

292-293; 1996-Ohio-107. If thie movant fails to m¢et this burden, summary jtuignent is not

appropriate; if the movant do meet this burden, smhmary judgment will only be appropriate if

the non-movant fails to estabfish the exactence of a gefmine issue of matecial fact Id.

RC. 4112.02(A) provl(Fdes:

"It sball be unlawful ^1±^*+n+i*afotj^ practice for any employer,becatue of race, calor, religion, so%, national origin, handicap,age, or of anyperson, to discharge withoat just cause, torefuse to hire,;or otherwise discrimia(ate against thatpetson withrespect to hn'e, tenma, terms, co6ditions, or pcivileges ofemploymmt, r any mattcr dircctl^ or indirectly related toemptoyment" .I

Federal case law is ;enerally app&cable tol cases brought under Chzpter 4112. See,

Genaro e. Cent Transport, b

In McDonnell Dough

States Supreme Court set the

promoting and demoting eml

employee must demonsCrate'

discbarged, (3) was qualifi4

pemtitted the retention of a p,

Co., N.A. (2004), 101 Ohio

501.

In the altemative, an

sbowing, in addition to the f

similarly situated employee

YaL^3^l aso85E

(}099), 84 Ohio St 311293, 295, 1999-Obio-352.

'^r Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, the United

staadard to establish im^ermissible discrimination in biring, 8ring,

loyees. To establish a prima facie case for age discriinina 'on, the

Uat he (1) was a memb8r of the statutorily protected class, (2) was

d for the position, an'd (4) was replaced by, or the discharge

:ison of a subs[antially )lounger age. Id., Coryell v. Bank One Trust

t 3d 175, 180; Kohmescher Y. Kroger Co. (1991), 61 Ohio St 3d

tployee may establish a pruna facie disparate treahnent case by

three elements, that the employee was treated diflerently than a

m outside the protected class. Policastro v. Northwest Airlines,

Appx. 000024

Inc. (C.A. 6, 2002), 297 F.34

F.2d 577, 582-583.

To be considered "si

compare his treatment must

standards and have engaged

circumstances that would di

535, 538, citing Mitchell v. Toledo Hospitai (C.A 6, 1992), 964

ilarly-situated," the individuals with wbom tbe plaintiff seeks to

ve dealt with the samec. supervisor, have been subj ect to the same

in the same conduet With out such differentiating or mitigating

tingaish their conduct or employer's treatmeat af them for that

conduct Mitchell, supra, at 5^82-583; Kanieckri v, Semrs, Roebuck & Co., Cuy. App. No. 90833,

2003-Ohio-421.

Tn this case, there is im.controverted eviderice Ithat Pattison at age 50 was a membez of a

statutorily protected class, tbst he was discharged on January 7, 2003 afier 27 years employment

with Grainger and its predece`as, and that he was replaced by peTSOns of substantially younger

age/not in the protected age oup. '

The next issne is whe er under the tbird prong of the test, Pattison would be considered

quali5ed for the job. In ord to demonstrate quali5dation for a position, mm employee must not

only prvve thc capabil4. of erforming the work but 6ust also demonstrate that he is meets the

employer's legitimatc expeet'atlons. fi slson v. Precision .Envtromental Co. (June 5, 2003), Cuy.

App. No. 81932 citing Smithi v. Greater Cleveland ILegional Transit Authortry (May 24, 2001),

Cuy. App. No. 78274.

Pattison ac3mowledg

Three supervisors documcni

that he failcd to meet bis sales goals for five coosecutive years.

Pattison's poor performance. In November 1999, Pattison was

warned that he was in jeop y of fzIIing short of hSs annuel goals for the second consecutive

year and was urged to estab 5% growth or face cbrrective action. In January 2000, Pattison

was wamed that if he did n meet first quarter salesl expectations, disciplinary action, including

A835 1 PG0852

Appx.000025

posstble termiaation would e taken. In 2002, lliMrb conducted an annual performance review

which documented Pattison' lack of performance. Pattison was the only territory manager in

his district who failed to mee his sales goal over a period of five years. In addition, Pattison was

put on notice for failure to end sales and promoYfional mcetings, failtse to entertain clients,

failure to file timely reports,

R'hile Pattison argu thaf he was denied the opportunity to use Indians baseball tickets,

thaf some of his accounts we e traneferred to other esnployees and that he was well liked by at

least four or five of Itis costomers, he is unpersuasive in establishing that those factors would

have made any substantial difT''erence in his sales $guries over the five year period

The evidence establis$ea that under the Smith 6tandard, Pattison would not be considered

qoalified for the job; his p

employer's expectations of

Cttainger's general sub

Assuming arguendo

burden shiRs to C'.rnunger

discharge. Pattison mostthi

nnlawfnl discrimination. Mc

To establishwhether

an employee must show

discriminatory reasons morc

remains at all times with

(2000), 530 U.S. 133, 142, 1

a facie case would fzil. However, it is arguable whether the

ales goals for all salespersons wcre 4egitiwate when considering

sales performance.

Pattison establishes a prima facie case of discrimination, thc

articulate a legitimate non-rtiscir;*a;,,atory reason for Pattison's

dcmonstiate that Cttaingvr's stated rationale is merely a pretext for

onnell, supra; B^ker tt Scovill, Inc. (1983), 6 Ohio St 3d 146.

employer's reason foi termination is a prctext for d+sud•+++*A++on,

at the employer's pioffercd reason is not credible or that

ely motivated the employer's decision. Tbe burdcn of persuasion

e employee. See, Ree\1es v. Sanderson Plumbing Products, Inc.

0 S. Ct. 2097, 2106 citing Texas Deparnnent of Community Affairs

v. Burdine ( 1981), 450 U.S. *8, 255-256, 101 S. Ct 1089, 1095.

^H6351 PcQ85^

Appx. 000026

In their pleadiags an motion for summary judgment, Grainger and DiMeo assert that

age played no part in Pat.tison s*P*mi•+a*on.

Based upon evidence discussed earlier, Grainger terminated Pattison for his consistent

failure to meet sales goals dr five consecutive yeats in addition to Pattison's inability andlor

unwillingness to adopt DiMi 's suggestions to improve his sales perfotmance. Performance

problems are a lee}'tE=mate n^n-di. '+++t*+xtory reason for termination andan employer has the

right to make business decisi ns.

Pattison argues that t}rainger's ressoning fot termination is pretextu.al: DiMeo admitted

in deposition tbat the Clevelapd Dis4[ict as a whole iegularly failed to meet it sales goals; that in

2001 and 2002 only one 'fTv$ achieved sales goals.'But Paitison, unlike any of the other TMa

mentioned, failed to make go'V for five consecutive y ears.

Pattison argues that ^cott Puhalsky failed tri make sales goals and was considercd for

promotion as a National

PuhaLsk7rs bid for promotioa^

xount Manager. Evidenco shows that DiMeo did not svpport

bccause he failed to achi0ve his sales goal and that Puhalsky never

applied for the promotion. 7'hile Puhalsky testified that he was not warned or disciplined, be

was pressured to meet sales g0als or lose his job.

Pattison claims that*ian Waldron was promoted in July 2002 despite the fact that his

2001 sales were significantlylbelow goal. Evideuce indicates that Waldron was moved laterally

to a non-sales position and h did not fail to meet sales goals for five consecutive years.

Pattison argues that iMeo intcntionally set him up for failnrc by withholding Indians

tickets used for ent clients. Pattison faiLd to establish how having Indians tickets

substantially affected his sal goals. Tbere were dnly four seats and Pattison serviced 2,400;

accounts: ..

YUld3& 1. PBQ684

Appx.000027

Finally, Pattison

resnlting in his failure to

in time to his tetmination

have changed had he continu

Patterson caunot es

DiMeo acted with discrimin

Accordingly, Def^

granted

some of his aceounts were transfesed to other salesmen

e sales goals. Approximateky flve acconnts were transferred close

Pattison fails to demoustrate how his overall performance would

to servicethese aeconnts.

lish that a genuine issue of fact remains as to whether Crrainger or

ry intent in his tezminaYion.

TT L4 SO ORDERED

NO JUST CAUSE FOR DELAY.

Date: JTme &7- 2005

REGEIVED FOR FILING

JUN 21 2005

VOt^^^ I PGOB5'0THE STATE CF OHICl I. GERALD E. FL'ERST, CLERK OFCuPeNoge Ccunly F SS. THE COURT OF COMMON PLFAS

WI -- HIN AND FOR SAID CDLNTY.NEBEBPCERTI.1'TNA?T8E4BOVEANBFG GGI 'S *v t7ANP' FI C%8ui'. HED IGIN L/

i , iN6WfTNES f 4!-*i NUAN L FSAIOOA F 20

ER T Clerk

pep

Appx. 000028

CERTTLFICATE OB SERpICE,

A copy pf thc forego g Judgment Enhy was sent by rcgnlar U.S. mail this

of Juae, 2005, t'p the follo '

Caryn Groedel, Es I5910 derbrook Dx^Cleve OH 44124Anb forPlaiMffl

and

ve, Suite 200

Jamcs E. Davidson, P%q.Asron li. Granger, Psq.Schottenstein, Zox & Dunn, L.P.A.250 W. StrcetColumtios, OH 4321AArtorne}er for Defend^ntr

VO^^^'k PGQ85I

Appx.000029

APR 2, t} 2006

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT RECEIVED

COUNTY OF CUYAHOGA

NO. 86698

WALLY PATTISON,

Plaintiff-Appellant

vs.

W.W. GRAINGER, INC., ET AL.,

nefPnd.ants-Appellees

DATE OF ANNOUNCEMENT

OF DECISION

CHARACTER OF PROCEEDING:

JUDGMENT

DATE OF JOURNALIZATION

APPEARANCES:

For plaintiff-appellant:

For defendants-appellees:

JOURNAL ENTRY

and

OPINION

APRIL 13, 2006

Civil appeal from

Common Pleas Court

Case No. 500620

DISMISSED.

APR P 412008

MAY 01 2006

J.E.D.

Caryn M. Groedel, Esq.

David J. Steiner, Esq.

CARYN GROEDEL & ASSOCIATES CO., LPA

5910 Landerbrook Drive

Suite 200Cleveland, Ohio 44124

James E. Davidson, Esq.

Aaron L. Granger, Esq.

SHOTTENSTEIN, ZOX & DUNN, L.P.A.

250 West Street

P.O. Box 165020

Columbus, Ohio 43215

CA05086698 39088630

1IIIIII IIIII IIIII lall IIIN I^II IIIII IIIII IIII I^yaQ6II P5059I

Appx. 000030

-2-

MICHAEL J. CORRIGAN, J.:

Defendant-employer W.W. Grainger; Inc. terminated plaintiff-

employee Wally Pattison, a fifty-year-old salesperson, when he

failed to make his sales goal for the fifth consecutive year.

Believing himself to be the victim of age discrimination, Pattison

brought suit alleging age discrimination and wrongful discharge in

violati.on.of Ohio public policy. He sought compensation in the

form of back and front pay, as well as punitive damages. Grainger

filed a motion for summary judgment in which it argued that

Pattison failed to set forth a prima facie case of age

discrimination because his poor job performance rendered him

unqualified for the position of salesperson. The court agreed and

granted summary judgment. We find, reluctantly, that we lack a

final appealable order because the public policy claim for relief

is still extant.

Civ.R. 54(B) states:

"When more than one claim for relief is presented in an action

whether as a claim, counterclaim, cross-claim, or third-party

claim, and whether arising out of the same or separate

transactions, or when multiple parties are involved, the court may

enter final judgment as to one or more but fewer than all of the

claims or parties only upon an express determination that there is

no just reason for delay. In the absence of a determination that

there is no just reason for delay, any order or other form of

yeLU611 Pc0592Appx.000031

decision, however designated, which adjudicates fewer than all the

claims or the rights and liabilities of fewer than all the parties,

shall not terminate the action as to any of the claims or parties,

and the order or other form of decision is subject to revision at

any time before the entry of judgment adjudicating all the claims

and the rights and liabilities of all the parties."

Pattison filed a two-count complaint. The first count alleged

age discrimination under R.C. 4112.02(A). The second count alleged

that his termination violated Ohio's public policy against

employment discrimination as set forth in R.C. 4112.02 et seq.

Grainger's motion for summary judgment addressed the first

count of the complaint, but made no mention of the second count of

the complaint. In fact, nowhere in the motion for summary judgment

are the words "public policy" mentioned. The court's summary

judgment likewise failed to address the public policy claim. That

claim is therefore still extant. Because the court failed to

certify that there was no just reason for delay, the summary

judgment is not final as to all of Pattison's claims.

Our reluctance to dismiss this case is based on Wiles v.

Medina Auto Parts, 96 Ohio St.3d 240, 2002-Ohio-3994, which

arguably renders Pattison's public policy claim redundant to the

statutory age discrimination claim. Nevertheless, the impact of

the Wiles decision on public policy claims of age discrimination is

still open to question. See Gessner v. City of Union, 159 Ohio

YGlOo i I PG0593Appx.000032

-4-

App.3d 43, 2004-Ohio-5770, at ¶20; Ferraro v. B.F. Goodrich Co.,

149 Ohio App.3d 301, 316-317, 2002-Ohio-4398; Mercurio v. Honeywell

(S.D.Ohio), No. C-1-02-275, 2003 U.S. Dist. Lexis 9521 at *6.

Although we review summary judgments de novo, Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 1996-Ohio-336, Civ.R. 56

specifically endows the trial court with authority to decide

summary judgment motions in the first iristance. Indeed, Article

IV, Section 3(B)(2) of the Ohio Constitution specifically limits

our power to "*** review and affirm, modify, or reverse judgments

or final orders of the courts of record inferior to the court of

appeals ***." It is the trial court's function to rule on the

public policy claim in the first instance.

Appeal dismissed.

vaL06 i l P60594Appx.000033

-5-

This appeal is dismissed.

It is ordered that appellees recover of appellant its costs

herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court

directing the Common Pleas Court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate

pursuant to Rule 27 of the Rules of Appellate Prkcedure.-j_

ANN DYKE, A.J., and

FRANK D. CELEBREZZE, JR., J., CONCUR.

FILED AND JOliRNALIZEDPER APP. R. 221E)

APR 2 4 2006

CLBY.

RALD E. FUERSTCOURT'OF APPEALS

h-IX^ DEP.

ANNOUNCEhIIiiYi OF DECi5I0NPER APPRE

C^E,I V^)D^ 26(A)

APR 13 2005

OERALD E.PUER8TCLERK O PC P APPEALSBY DNP.

N.B. This entry is an announcement of the court's decision. See

App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will

be journalized and will become the judgment and order of the court

pursuant to App.R_22(E) unless a motion for reconsideration with

supporting brief, per App.R. 26(A), is filed within ten (10) days

of the announcement of the court's decision. The time period for

review by the Supreme Court of Ohio shall begin to run upon the

journalization of this court's announcement of decision by the

clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section

2 (A) (1) .

VO 6 1 1 Poa59sAppx. 000034

IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO

WALLY PATTISON

Plaintiff,

vs.

CASE NO. CV 03 500620

JUDGE NANCY A. FUERST

NOTICE OF DISIVIISSAI.OFPLAINTIFF'S PUBLIC POLICY

W.W. GRAINGER, INC., et al. ) CLAIM ONLY

Defendants.

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes the Plaintiff, Wally Pattison, by and through counsel, and, pursuant to Rule

41(A)(1)(a), hereby dismisses his public policy claim only from the instant case without

prejudice.

Plaintiff respectfully requests that this Honorable Court issue an Order stating that the

Judgment Entry is final and appealable.

Respectfully submitted,

Caryn MJGroedel (0060131)Jennifer L. Speck (0079126)Caryn Groedel & Associates Co. LPA5910 Landerbrook Dr., Suite 200Cleveland, Ohio 44124440-544-1122Attomeys for Plaintiff

Appx.000035

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served via first class, U.S. mail, this 28"'day of June, 2006, to James Davidson, Esq., Shottenstein, Zox & Dunn, 250 West Street,Columbus, Ohio 43215-2538, attorney for Defendants.

2

Appx.000036

Fl r_..^^CT OF APPEALS

AUG - 9 20061N T

GERALD E. FUEIRSTC'.F COURTS

CUYAWOGA COUrJTY, OHIO

COURT OF COMMON PLEASYAHOGA COUNTY, OHIO

WALLYPA•f'I'ISON ) CASE NO. CV 03 500620

Plaintiff,

vs.

W.W. GRAINGER, INC., et al.

JUDGE NANCY A. FUERST ^^)

NOTICE OF APPEAL

Judge:

Defendants. ) CA 06 088556

Notice is hereby given that the Plaintiff, Wally Pattison, by and through his undersigned

attorney, hereby appeals to the Court of Appeals for Cuyahoga County, Ohio Eighth Appellate

District, from the final judgment entered in this action on the 21 u day of June, 2005, that was

deemed final and appealable by the trial court on the 10`h of July, 2006.

A copy of the Judgment Entry being appealed from is attached hereto as Exhibit 1. The

trial court's July 10, 2006 notice is attached hereto as Exhibit 2.

Respectfully submitted,

Caryn M. Gkoedel(00601)Anthony J. Lazzaro (00^j'7962)Jennifer L. Speck (0079126)Caryn Groedel & Associates Co., LPA5910 Landerbrook Drive, Suite 200Cleveland, Ohio 44124(440) 544-1122 phone (440) 446-1240 faxc r̂ oedel,^eroedel-law.comAttorneys for Plaintiff

RECEfVEDr°=° , ., ^r

AU G j4,^ 20D6 ^

ZOOb ,'^^Q• A 11; 48

Appx.000037

CERTIFICATE OF SER'QCE

I hereby certify that a copy of the foregoing was served via first class, U.S. mail, this 9thday of August, 2006, to James Davidson, Esq., Shottenstein, Zox & Dunn, 250 West Street,Columbus, Ohio 43215-2538, attomey for Defendants.

2

Appx.000038

STATE OF OSIO N TEE COURT OF COMMON PLEAS5S:

CUYAHOGA COUNTY L:ASE 90. CV 03-500620

WALLY PATTfSON

Plaintiff

W.W. GRAIIIGER, INC., ejal., ))

Defendants

Nancy A. FtEerst, J.:

EN'I77

Plaintiff employee W Pattison filed clainbs againet former employer W.W. Grainger

and s¢pervisor Sam ThMeo alleging a ciLct^sdanti^l case of age dismm;rA+^on in violation of

RC. 4122.02. .4fter wo for Grainger aad its preder.essor company for 27 years, the 50

yea-old empioyee was t on 7anvary 7, 2023, after 5 years of poor sales performance.

Pattison claims thaf he was ^i•+a+cd and replaced by Jolm WaQhainen (age 40), Lisa Marie

Duke (age 30) and Jim Hop (age 38).

Defendants W.W. ger, Inc. and Sam DLVeo moved for summary jndgment arguing

that Pa#ison was for Iegitimate reakns and cannot make a case for age

dicc 'ration.

Under Civ. R. 56, judgmeaf is app^opri.ate when (1) no genuine issue as to any

material fact exists, (2) the arty moving for smreiary jndgmeat is entitled To judgment as a

matter of law, aad (3) vie g the evidence niost ctrongly in favor of the non-moving party,

reasonable minds can only reach one conclusion whidh is adverse to the non-moving party.

Appx_000039

The moving party 4 azxies an initial burdcn of setling forth specific facts which

demonstrate his entitlement summaty judgment. Dresher v. Bur1 (1996), 75 Ohio St. 3d 280,

292-293; 1996-Ohio-107. If jthe movant fails to mCet this burden, st**+?^ary judgment is not

appropriate; if the movant do s mect this burden, smhmary judgment will only be appropriate if

the non-movant fails to estab h the eaasteace of a gehuine isaue of material facc Id

R.C. 4112.02(A) pro des:

"it shall be mr^ unlawful discrmtimatorf practice for any employer,becavse of race, color, relie}'on, saX, national origin, haadicap,age, or of any petson, to discllarge without just canse, torcfuse to bire„or otherwise discrimi7[ate againrt that person withrespect to bue, tennre, terms, cobditions, or privileges ofemployment, ^r any matter ditectly or indirectly relatCd toempioyment." I

Federal case law is lenerally applicable tof cases brought under Chapter 4112. See,

Genaro c. Cert[ Transporl, Ir

In McDonnel/ Dough

States Supreme Court set the

promoting and demoting

employee must demonstrate

dischsffged. (3) was quslifi

permitted the retention of a p

Co., N.A. (2004), 101 Ohio

501.

c. (JH99), 84 Ohio St 3d 293, 295, 1999-Obio-352.

s Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, the United

standard to establish im^ermissble discriminat ion in hiring, firing,

loyees. To establisb a prima fade case for age discrimination, the

he (1) was a member of the staiutorily protected class, (2) was

d for the positioR anii (4) was replaced by, or the discharge

on of a substantially ^ounger age. Id., Coryell v. Bank One Trust

t. 3d 175, 180; Kohmeseher v. Kroger Co. (1991), 61 Ohio St. 3d

sbowSng, in addition to the F three elements, that the employee was treated differcntly than a

similarly situated employee m outside the protected class. Policastro v. Norrhwesr Airlines,

ua^3 .5 I PBp851

Appx.000040

Inc. (C.A. 6, 2002), 297 F.3t^ 535, 538, citiag Mitchell v. Toledo Hospita.l (C.A 6, 1992), 964

F.2d 577, 582-583. I

To be considered "' ' ly-situated," the indtviduals with whom the p9ainti$' seeks to

compare bis treatment must ve dealt with the szme- supervisor, bavc been subject to the same

standards and have engaged in the same conduct with out such difletaatiating or mitigating

circumstances tbat would ' t'no^uish their eonduct or employer's trcatment of tbem for that

conduct Mitchell, supra, at 2-583; Kanie.sksi v, Sears, Roebuck & Co., Cuy. App. No. 80833,

2003-Ohio-421.

Jn this case, there is imcontroverted evidence khat Pattison at age 50 was a member of a

statutorily protected class, th+ he was discharged on 7anuary 7, 2003 after 27 years employment

with Cxr•ainger and its predeceksors, and that he was replaced by persons of substantially younger

agdnot in thc protected age gSonp.

'Ihe next issue is whe8lher under the third pronk of the test, Pattison would be considered

qualified for tbe job. Jn ord to demonstrate qnalifidation for a position, an employee must not

only prove the capabili^ of erforming the work but 6ust also demoo.strete that he is meets the

employer's lcgitimate expectations. Wilson v. Precision Enviromental Co. (Junc 5, 2003), Cuy.

App. No, 81932 citing SmiiMp v. Greater Cleveland IEegional Traneir Authority (May 24, 2001),

Cuy. App. No. 78274.

Pattison acknowledg that he failed to meet Lis sales goals for five consecutive years.

Three supervisors document Paftison's poor perfoimance. In November 1999, Pattison was

wamed that he was in jeop y of faIling short of b4s annuzl goals for the second consecutive

year and was taged to estab sh 5% growth or face ebxrective action. In January 2000, Pattison

was warned that if be did no meet first quarter salesl expectations, disciplinary action, including

VUL3351 P00852

Appx. 000041

possible termination would e taken. In 2002, DiMeb conducted an annual performance review

which dooumcnted Pattison' lack of performance. Pattison was the only tenitory manager in

his distric[ who failed to mee his sales goal over a period of fivc years. Tn addition, Pattison was

put on notice for failure to end sales and promotlional meetings, failure to enteYfa.in clients,

failure to file timely reports,

Wbile Pattison argue that he was denied the wpportunity to use Tndians baseball tickets,

that some of his accounts weZe traasfesed to other employees and tbat he was well ]sked by at

least foor or five of his customers, he is nnpeisuasve in establishing that tbose factors would

have made any substantial differettce in his sales figm^s over t.he five year period

The evidence establis$es that imder the Smith;standard, Pattisoa would not be considered

qualified for the job; his p

employer's expcctations of

Grainger's geueral substan

Assuming argucndo

burden sbifts to Grainger td

1discharge. Pattison must ther

facie case would fail. However, it is arguable whether the

ales goals for all salespetsons were legitimate when considering

sales performance.

at Pattison establishesc, a prima facie case of dtsrrizamation, thc

articulate a legitimate non-discriminatory reason for Pattison's

demonstrate thet Gxainger's stated rationale is merely a pretext for

unlawfiil discrimination. Mnne11, supra; Barker 4 Scovill, Inc. (1983), 6 Ohio St 3d 146.

To establish whether employer's reason foz termination is a pretext for discrimination,

an employee must show 1

discriminatory reasons more ]

remains at all times with tb

iat the employer's pfoffered reason is not credrblc or that

cely motivated the emp7oyet's decision. The burden of persoasion

: employee. See, Reeuea v. Sanderson Plumbing Producrs, Inc.

(2000), 530 U.S. 133, 142, 120 S. CC 2097, 2106 citibg Texas Department of Community Affairs

Y. Burdine (1981), 450 LI.S. 2^8, 255-256, 101 S. Ct 1089, 1095.

YUIi`^^51 PG^853.

Appx.000042

In their pleadings motion for summary judgment, Grainger and DiMeo assert that

age played no part in Pattison s tecmination.

Based upon evidence fs discussed earlier, Grainger terminated Pattisoa for his consistent

failure to meet sales goals fir five consecutive yeaTs in addition to Pattison's inability and/or

unwillingncss to adopt DiM^'s suggestions to improve his sales performance. Performance

problems are a legitimate n n-+Ac'•^t^z'^ry reason for termination andan employer has the

right to make business decisi ns.

Pattison argues that ' ger's reasoning for termination is pretextnal: DiMeo admitted

in deposition that the Clevelahd Dishict as a whole i'egularly failed to meet it sales goals; that in

2001 and 2002 only one TTv$ achieved sales goals.,But Pariison, unlike any of the other TM.s

mentioned, failed to make goil for five consecutive Y ears.

Patrison argues that $cott Puhalsky failed t© make sales goals and was considered for

promotion as a National A^ount Manager. Evidance shows that DiD4eo did not support

Puhalsky's bid for promotion because he failed to achieve his sales goal and that Pubalsky never

applied for the promotion. V^hile PuhaLsky trsti.fiecj that he was not warned or disciplined, he

was pressured to meet sales gbals or lose his job.

Pattisoa claims that *ian Waldron was protlroted in July 2002 despite the fact that his

2001 sales were significamlylbelow goal. Evidence indicates that Waidron was moved IateraIly

to anon-sales position and h^

Pattison argues that

tickcts used for entertainin

did not fail to mcet salcs goals for fivc consecutive years.

iMeo intentionally set• him up for failure by withholding Indians

cfients. Pattison faihd to establish how having Indians tickets

substantially affected his sal^s goals. There were dnly four seats and Pattison serviced 2,400

accounts:

^Ol^3^sl P6Q854

Appx.000043

Finally, Paitison ar es that some of his acbovats were transferred to other salesmen

resulting in his faihre to inA

in time to his terminatioa

have changed had he contin

Patterson cannot estal

DiMeo acted with discrimina

Accordingly, Defcn

e sales goals. Appror_imately five accounts were transferred close

Pattison fails to demoustrate how his overall performznce wonld

to service these accounts.

]ish that a genuine iss¢8 of fact remains as to whether Grainger or

ry intent in his terminaition.

ts Grainger and DiMeo's motion for summary judgmeaf

granted. ^

I'I' Is So ORDERED.

NO SUST CAUSE F^R DELAY.

Date: June L7-2005

RECEfYEO FOR FII.ING

JUN E 1 2005G

Wt^^^ I PB085'^HE,'tEBYCNiL„T.Hi:TTHE.l60VEANCF 0^ NANp' ^IEDFOU, HE 161N L'^^ ^NITVOA

^^j(:t

_e

N g:c^Ap^^.L F 5 zD CpJkq .t51L^

ER$T.Clerk

ry

THE 9TAT E OF OHIC 1. GERALC E. FUERST, CLERK OFCuyahuga CcunN SS. THE GC(15T OF COMMON PLEAS

wITy1N ANe FOR SAro COUNTY.

is

Appx. 000044

11

CF'RTiFJCATE OF SERVJCE

A copy:jof the forego g Judgment Entry wa5 sent by regular U.S. mail this 1

of 7une, 2005, tg the follo '

Caryn Groedel, Es .5910 derbrook ve, Suite 200Clevel4d, OH 44124A[1brn for Plaint(ff

and

James fi. Davidson, q.Aaron L Granger, Esq.Schotteustein, Zox & ibunn, L.PA.250 W. StreetColumfiu, OH 43214Attornexs for Defenddnts

I!,

5

Appx.000045

WALLY PATTISONPlaintiff

I^IIIIII^IllIiIIIIIVIIIIIIIIIIIIVIIIIIIii IIIII40231060

IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO

I Case No: CV-03-500620

Judge: NANCY A FUERST

W.W. GRAINGER, INC. ETALDefendant

JOURNAL ENTRY

PURSUANT TO PLTF'S 6/29i06 NOTICE, PLTF'S PUBLIC POLICY CLAIM, ONLY IS DISMISSED WITHOUT PREIUDICE.CIV. R.41(A)(1).

THIS IS A FINAL A, ID APPEALAI3LE ORDER. NO JUST CAUSE FOR DELAY.

Judge Signature 07/09/2006

07/09/2006

Y^!3606 P.'034QRECEIVED FOR FILING

07/1012006 09:11:03By: CLKItM

GERALD E. FUER/S-T, CLERK

1 111^A.1/

Appx.000046P^nn 1 nPi

JIeL'.i7W

Cnoixrt of Appettio of 04tvEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAIIOGA

JOURNAL ENTRY AND OPINIONNo. 88556

WALLY PATTISON

PLAINTIFF-APPELLANT

vs.

W.W. GRAINGER, INC., ET AL.

DEFENDANTS-APPELLEES

JUDGMENT:DISMISSED

Civil Appeal from theCuyahoga County Common Pleas Court

Case No. CV-500620

BEFORE: Stewart, J., Celebrezze, A.J., and Blackmon, J.

RELEASED: June 21, 2007

JOURNALIZED:JUL 17 PM CA06088556 46633527

1111111 IIIII IIIII IIIII III^ IIIII NIII Ilill IIII I^I.N6-.01 639 PO0240

Appx. 000047

-1-

ATTORNEYS FOR APPELLANT

Caryn M. GroedelAnthony J. LazzaroJennifer L. SpeckCaryn Groedel & Associates Co., LPA5910 Landerbrook Drive

Suite 200Cleveland, OH 44124

ATTORNEYS FOR APPELLEES

James E. DavidsonAaron L. GrangerShottenstein, Zox & Dunn, LPA250 West StreetP.O. Box 165020Columbus, OH 43215

FILED AND JO'tIRNALIZEDPER APP, R. 22fEJ

JUL 1 72007OERALD E. FUERST

CLERK 0GpU^T oE AppEALS

BY L/^ 0-1F.

ANYOL'19CEIv1EY'f OF 4ECIf10NPRRAPP.RR.E2^W,I^(D AND 261PJ

JUN 21 2007

CA06088556 46078626

11111111 I^^^^ 11111 mi 11111111111111111111111111111111

EWALD E. FUER6TfQ01WT OF APPEALS

®V ' ._..o._epEP.

N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D)and 26(A); Loc.App.R. 22. This decision will be journalized and will become thejudgment and order of the court pursuant to App.R. 22(E) unless a motion forreconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days ofthe announcement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this court's announcementof decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1).

S01 639 'HQ241Appx.000048

-1-

MELODY J. STEWART, J.:

Plaintiff-appellant Wally Pattison appeals from a summary judgment in

favor of defendant-appellees W.W. Grainger, Inc. and Sam DiMeo on his

complaint alleging age discrimination. We find that appellant did not timely file

this appeal under App.R. 4(A). We therefore lack jurisdiction and must dismiss

the appeal.

Appellant filed a two-count complaint alleging age discrimination and

violation of public policy. The court granted Grainger and DiMeo summary

judgment on the age discrimination count, and appellant appealed. We

dismissed the appeal for want of a final appealable order under Civ.R. 54(B)

because the public policy claim remained extant. See Pattison v. W. W. Grainger,

Inc., Cuyahoga App. No. 86698, 2006-Ohio-1845. On June 29, 2006, Pattison

voluntarily dismissed the public policy claim pursuant to Civ.R. 41(A)(1)(a) to

perfect a final appealable order. He then filed his notice of appeal on August 9,

2006.

App.R. 4(A) states that a party shall file a notice of appeal within "thirty

days of the later of entry of the judgment or order appealed ***." Appellant

apparently appealed from the court's July 10, 2006 memorialization of the June

29, 2006 voluntary dismissal. This was erroneous, however, as a Civ.R.

41(A)(1)(a) voluntary dismissal is self-executing - it is effective upon filing.

VAr 639 PGO242Appx.000049

-2-

James u. Allstate Ins. Co. (Mar. 16, 2000), Cuyahoga App. No. 75993; Howard v.

Fiyalko (Oct. 29, 1998), Cuyahoga App. No. 74308. Since a voluntary dismissal

is effective upon filing, it requires no court entry acknowledging the dismissal.

Payton v. Rehberg (1997), 119 Ohio App.3d 183; Andrews v. Sajar Plastics, Inc.

(1994), 98 Ohio App.3d 61. The time in which to appeal began to run on June 29,

2006, not July 10, 2006. More than 30 days had elapsed by August 9, 2006, so

appellant did not timely file his notice of appeal.

This discussion presupposes that a party may, under Civ.R. 41(A)(1),

voluntarily dismiss one of multiple claims for relief as opposed to an entire

action. Civ.R. 41(A)(1)(a) states "a plaintiff, without order of court, may dismiss

all claims asserted by that plaintiff against a defendant" by filing a notice of

dismissal "at any time before the commencement of trial unless a counterclaim

which cannot remain pending for independent adjudication by the court has been

served by that defendant[.]" (Emphasis added.)

Most of the courts in this state have construed the language "all claims"

literally and have held that a party cannot create a final order by dismissing less

than all claims for relief against a defendant. For example, in Borchers v.

Winzeler Excavating Co. (Apr. 10, 1992), Montgomery App. No. 13297, the

Second Appellate District stated, "[i]n our view, Civ.R. 41(A)(1) creates a

mechanism whereby a plaintiff may voluntarily dismiss his entire action,

RU@ 6 39 P0 0 2 4 3 Appx. 000050

-3-

without prejudice. It does not provide for the dismissal, without prejudice, of

part of a cause of action. To do so would permit piecemeal litigation and

piecemeal appeals, which are disfavored in the law." See, also, Savage v. Cody-

Zeigler, Inc., Athens App. No. 06CA5, 2006-Ohio-2760, 134-35. It has been

suggested that amending a complaint pursuant to Civ.R. 15(A) is the proper

procedure to dismiss claims in a multi-count complaint. See, e.g., Reagan v.

Ranger Transp., Inc. (1995), 104 Ohio App.3d 15, 18, citing Serotko U. State Farm

Fire &. Cas. Co. (Sept. 9, 1994), Trumbull App. No. 94-T-5045; Kildow v. Home

Town Improvements (July 23, 2002), Muskingum App. No. CT2001-9957; Lewis

v. J.E. Wiggins & Co., Franklin App. Nos. 04AP-469, 04AP-544 and 04AP-668,

2004-Ohio-6724.

These appellate districts distinguish between the dismissal of parties and

the dismissal of claims for relief. In Denham v. City of New Carlisle, 86 Ohio

St.3d 594, 1999-Ohio-128, the syllabus states "[a] trial court's decision granting

summary judgment based on immunity for one of several defendants in a civil

action becomes a final appealable order when the plaintiff voluntarily dismisses

the remaining parties to the suit pursuant to Civ.R. 41(A)(1)." Consistent with

Denham, these districts conclude that the dismissal of remaining parties is

tantamount to the dismissal of an "action," while dismissal of one or more claims

for relief is not.

ot@539 P00244Appx.000051

-4-

This court has not followed these districts. In Montgomery v. Zalud (Aug.

20, 1998), Cuyahoga App. No. 73021, the panel stated:

"The issue of appealability concerning single party, multi-claim cases,

where a remaining claim is voluntarily dismissed, has met with opposing

interpretations among the Ohio appellate courts. However, this court in Eiland

u. Coldwell BanherHunterRealty (August 14, 1997), Cuyahoga CountyApp. No.

71369, unreported, recently addressed the guidelines for Civ.R. 54(B)

application' to determine what constitutes a final appealable order, and

concluded that in cases where a party has received a partial judgment and

voluntarily dismisses a claim in a single party suit, or a defendant in a

multi-party suit, that partial judgment becomes a final judgment subject to

appeal. Eiland, supra; see, also, Coffey v. Foamex (C.A.6, 1993), 2 F.3d 157, 159

'Those guidelines state:"1. Civ. R. 54(B) will be applied only where there are claims or actions against

parties still presently pending in the trial court."2. If claims or actions against former parties were dismissed without prejudice

at any time during the proceedings below, they will be treated "as if no action had beenbrought at all" as to those parties. DeVille Photography, Inc. v. Bowers (1959), 169Ohio St. 267, 272, 159 N.E.2d 443; Johnston u. Cartwright (C.A.8, 1965), 344 F.2d 773,

774."3. Where it appears that claims or actions are still pending between or among

some or all of the parties below, are not otherwise moot, and the trial court has notproperly certified that there is "no just reason for delay" under Civ. R. 54(B), the casewill be dismissed sua sponte with the right of reinstatement after obtaining a final

appealable order."

Y20 63y PO©245Appx. 000052

-5-

('Plaintiff voluntarily dismissed these claims without prejudice on July 16, 1992

rendering the [March 4, 1992 summary judgment] order final and appealable');

General Auiation, Inc. v. Cessna Aircraft Co. (C.A.6, 1990), 915 F.2d 1038, 1040

(General Aviation's voluntary dismissal of its sole remaining claim after the

court granted partial summary judgment in favor of Cessna on all other claims

made the district court's order final under Fed.R.Civ.P. 54(B)). The logic behind

this interpretation is that although the partial judgment at the time just prior

to the voluntary dismissal is inchoate or interlocutory, once the remaining

claim(s) or party(s) are voluntarily dismissed, a final judgment is rendered. Id.

To hold the opposite, as many appellate courts have, would frustrate the purpose

of Civ.R. 41(A), and thwart otherwise worthy appeals. Id."

We recognize that this court's precedent conflicts with the near unanimity

of our other appellate districts.Z Nevertheless, our precedent has served this

district well. It streamlines the process for obtaining final orders when Civ.R.

54(B) certification has not been obtained. Judicial economy is promoted by

expediting the voluntary dismissal of a claim for relief - it has been our

experience that plaintiffs who voluntarily dismiss a cause of action in order to

2 At least one other panel of this court has raised the issue of voluntary

dismissals of causes of action. In Rodgers v. Cargotec, In.c., Cuyahoga App. No. 83774,2004-Ohio-2848, the panel questioned "whether a plaintiff may voluntarily dismiss,without court order, fewer than all claims asserted against a defendant." Id. at fn.3.The panel did not need to answer that question as it decided the case on other grounds.

4'06 3 9 M0 246 Appx. 000053

-6-

create a final order rarely, if ever, refile those dismissed claims. Piecemeal

litigation has not resulted from our policy, and even if it did, it would be no

different than the piecemeal litigation expressly sanctioned by Civ.R. 54(B).

We view our procedure as preferable to the more cumbersome alternative

whereby a party would have to amend a complaint under Civ.R. 15(A) in order

to delete a claim for relief. See, e.g., Lee v. Gross Lumber Co. (1989), 57 Ohio

App.3d 52, 53. Our misgivings with this approach are based on the

impracticality of forcing a party to seek leave to amend a complaint in order to

delete a claim for relief from a complaint. It is an awkward and protracted

procedure in which the party seeking amendment would first be required to seek

leave of court or obtain written consent by the opposing party before

amendment. See Civ.R. 15(A). The opposing party would then have 14 days in

which to respond. Id. There is nothing econornical in the Civ.R. 15(A) approach.

Civ.R. 54(B) certification is the preferred method for obtaining a final

order in cases where the plaintiff has one or more claims for relief that remain

pending in the trial court. In cases like this, however, where a party deletes a

claim for relief in order to create a final order, we continue to adhere to our prior

precedent and hold that a plaintiff may, under Civ.R. 41(A)(l)(a), voluntarily

dismiss a single cause of action or multiple causes of action in a multi-count

complaint. When appellant voluntarily dismissed the public policy claim, he

V^00 639 @60247Appx.000054

-7-

converted the non-final summary judgment on the age discrimination claim into

a final order. That dismissal became effective upon filing, not memorialization

by the court. It follows that appellant did not timely file his notice of appeal. We

therefore lack jurisdiction to hear this appeal.3

Appeal dismissed.

It is ordered that appellees recover of appellant their costs herein taxed.

It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

FRA`KK D. CELEBREZZE, JR., A.J., andPATRICIA ANN BLACKMON, J., CONCUR

3 In light of the obvious conflict between this district and others on thevoluntary dismissal issue, we have, concurrent with the release of this opinion, certifiedto the supreme court the following question: in a case where a plaintiff has assertedmultiple claims against a single defendant and some of those claims have been ruledupon but not converted into a final order with Civ.B.. 54(B), can the plaintiff create afinal order by voluntarily dismissing pursuant to Civ.R. 41(A) the remaining claimsasserted against that defendant.

V0638 000248Appx. 000055

RULE 41. Dismissal of Actions

(A) Voluntary dismissal: effect thereof.

( 1) By plaintiff; by stipulation. Subject to the provisions of Civ. R. 23(E), Civ. R.

23.1, and C'iv. R. 66, a plaintiff, without order of cowt, may dismiss all claims asserted by thatplaintiff against a defendant by doing either of the following:

(a) filing a notice of dismissal at any time before the commencement of trial unless acounterclaim which cannot remain pending for independent adjudication by the court has beenserved by that defendant;

(b) filing a stipulation of dismissal signed by all parties who have appeared in the

action

Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is withoutprejudice, except that a notice of dismissal operates as an adjudication upon the merits of anyclaim that the plaintiff has once dismissed in any court.

(2) By order of court. Except as provided in division (A)(1) of this rule, a claimshall not be dismissed at the plaintifPs instance except upon order of the court and upon suchterms and conditions as the court deems proper. If a counterclaim has been pleaded by adefendant prior to the service upon that defendant of the plaintiffs motion to dismiss, a claimshall not be dismissed against the defendant's objection unless the counterclaim can remainpending for independent adjudication by the court. Unless otherwise specified in the order, adismissal under division (A)(2) of this rule is without prejudice.

(B) Involuntary dismissal: effect thereof.

(1) Failure to prosecute. Where the plaintiff fails to prosecute, or comply with theserules or any court order, the court upon motion of a defendant or on its own motion may, afternotice to the plaintiffs counsel, dismiss an action or claim.

(2) Dismissal; non-jury action. After the plaintiff, in an action tried by the courtwithout a jury, has completed the presentation of the plaintiff's evidence, the defendant, withoutwaiving the right to offer evidence in the event the motion is not granted, may move for adismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.The court as trier of the facts may then determine them and render judgment against the plaintiffor may decline to render any judgment until the close of all the evidence. If the court rendersjudgment on the merits against the plaintiff, the court shall make findings as provided in Civ. R.

52 if requested to do so by any party.

Appx.000056

(3) Adjudication on the merits; exception. A dismissal under division (B) of thisrule and any dismissal not provided for in this rule, except as provided in division (B)(4) of'thisrule, operates as an adjudication upon the nierits unless the court, in its order for dismissal,otherwise specifies.

(4) Failure other than on the merits. A dismissal for either of the following reasonsshall operate as a failure otherwise than on the merits:

(a) lack ofjurisdiction over the person or the subject matter;

(b) failure to join a party under Civ. R. 19 or Civ. R. 19.1

(C) Dismissal of counterclaim, cross-claim, or third-party claim. The provisionsof this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. Avoluntary dismissal by the claimant alone pursuant to division (A)(1) of this rule shall be madebefore the commencement of trial.

(D) Costs of previously dismissed action. If a plaintiff who has once dismissed aclaim in any court commences an action based upon or including the same claim against thesame defendant, the court may make such order for the payment of costs of the claim previouslydismissed as it may deem proper and may stay the proceedings in the action until the plaintiff hascomplied with the order.

[Effective: July 1, 1970; amended effective July 1, 1971; July 1, 1972; July 1, 2001.]

Staff Note (July 1, 2001 Amendment)

Civil Rule 41 Dismissal of Actions

This rule was amended (1) to reflect more precisely its interpretation by theSupreme Court in Denham v. City of New Carlisle, 86 Ohio St. 3d 594 (1999); (2) toconform Civ. R. 41(D) with Civ. R. 41(A) as amended; and (3) to reflect that Civ. R. 23.1provides that a shareholder derivative action "shall not be dismissed or compromisedwithout the approval of the court."

In divisions (B) and (C), masculine references were changed to gender-neutrallanguage, the style used for rule references was changed, and other grammaticalchanges were made. No substantive amendment to divisions (B) and (C) was intended.

Appx.000057