[Cite as Wantage v. Ohio Dev. Servs. Agency, 2016-Ohio-5224.]



MARK WANTAGE                                         Case No. 2013-00616

       Plaintiff                                     Judge Patrick M. McGrath
                                                     Magistrate Holly True Shaver
       v.
                                                     JUDGMENT ENTRY
OHIO DEVELOPMENT SERVICES
AGENCY

       Defendant



        {¶1} On March 31, 2016, the magistrate issued a decision recommending
judgment in favor of defendant. Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file
written objections to a magistrate’s decision within fourteen days of the filing of the
decision, whether or not the court has adopted the decision during that fourteen-day
period as permitted by Civ.R. 53(D)(4)(e)(i).” On April 14, 2016, plaintiff Mark Wantage
(Wantage) filed objections to the magistrate’s decision. On April 22, 2016, defendant
Ohio Development Services Agency (ODSA) filed a response to plaintiff’s objections.1
In its response, ODSA argues that plaintiff’s objections do not comply with
Civ.R. 53(D)(3)(b), are unsupported by the record, and present no material errors of
law.
        {¶2} Plaintiff, previously an employee at ODSA’s Office of Energy Efficiency and
Renewable Energy, brought this action alleging a violation of the Family and Medical
Leave Act (FMLA), retaliation in violation of R.C. 4112, and wrongful termination in
violation of public policy. However, the court granted defendant’s motion for summary

        1The    court notes that ODSA’s response was 18 pages, exceeding the court’s page limitation.
L.C.C.R. 4(E), states as follows: “Supporting, opposing, or memorandum briefs shall not exceed fifteen
pages in length, exclusive of attachments. Reply briefs shall not exceed seven pages in length, exclusive
of attachments. Applications for leave to file a long brief shall be by motion that sets forth the unusual
and extraordinary circumstances which necessitate the filing of a long brief.” ODSA did not file for leave
to file a long brief, and while the court was not required to review defendant’s response, it did so in the
evaluation of plaintiff’s objections. The court advises defendant to be aware of the page limitations in
future filings.
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judgment as to plaintiff’s FMLA claim. Plaintiff began his employment on May 7, 2012,
and was terminated on April 19, 2013. He was an employee at-will and his duties
included supervising the project managers in his section, who were members of a
collective bargaining unit. While plaintiff argued that he was terminated for a variety of
unlawful reasons, the magistrate concluded that plaintiff failed to prove any of his claims
by a preponderance of the evidence.
      {¶3} A review of plaintiff’s objections reveals that they do not satisfy the
requirements of Civ.R. 53(D)(3)(b)(ii), which states as follows: “(ii) Specificity of
objection.   An objection to a magistrate’s decision shall be specific and state with
particularity all grounds for objection.” In State ex rel Weimer v. Zayre Cent. Corp. the
Tenth District Court of Appeals concluded that a party’s objection did not comply with
the Ohio Civil Rules where it merely paraphrased arguments in briefs submitted
previously and failed to even make specific reference to the magistrate’s decision. 10th
Dist. No. 02AP-182, 2002-Ohio-6737, ¶ 6. Further, the Tenth District noted that where
a party merely states that he objects to the magistrate’s decision based on the reasons
contained in the attached brief, he does not comply with the specificity and particularity
requirements.    Id. at ¶ 7.   Plaintiff’s objections here only refer to the magistrate’s
decision twice, and they are not specific and do not state with particularity all grounds
for objection.   As such, the court finds that plaintiff’s objections fall short of the
specificity requirement. Furthermore, even if the court does consider the objections to
be specific and minimally satisfy Civ.R. 53(E)(3)(b), the court finds no error in the
magistrate’s decision and recommendation.
      {¶4} First, plaintiff failed to support his objections with a transcript of the
proceedings.     When ruling on objections to a magistrate’s decision, a “court shall
undertake an independent review as to the objected matters to ascertain that the
magistrate has properly determined the factual issues and appropriately applied the
law.” Civ.R. 53(D)(4)(d). Additionally, when a party objects to a magistrate’s factual
Case No. 2013-00616                                 -3-                             JUDGMENT ENTRY


findings, “whether or not specifically designated as a finding of fact * * * [it] shall be
supported by a transcript of all the evidence submitted to the magistrate relevant to that
finding     or   an   affidavit   of   that    evidence      if   a    transcript   is   not   available.”
Civ.R. 53(D)(3)(b)(iii). “If an objecting party fails to submit a transcript or affidavit, the
trial court must accept the magistrate’s factual findings and limit its review to the
magistrate’s legal conclusions.”           Triplett v. Warren Corr. Inst., 10th Dist. Franklin
No. 12AP-728, 2013-Ohio-2743, ¶ 13. Accordingly, the court accepts the magistrate’s
factual findings and any objections related to factual findings are without merit.
          {¶5} Second, to the extent plaintiff challenges the magistrate’s conclusions of
law, the court’s review of the magistrate’s decision reveals that the facts found by the
magistrate are sufficient to sustain the magistrate’s conclusions, and that the
magistrate’s conclusions are consistent with law.2                    Plaintiff argues that during his
employment with defendant, he was forced to deal with two instances in which he was
asked to support unlawful conduct on the part of his superiors, and plaintiff’s
unwillingness to comply resulted in his discharge in violation of public policy.
Specifically, these two instances were disciplining Anunike, a project manager under
plaintiff’s supervision, and opposing sign-off of the Quasar Energy payments.
          {¶6} In order to establish a claim for wrongful termination in violation of public
policy, plaintiff must prove: 1) a clear public policy manifested in a statute, regulation, or
the common law (the clarity element); 2) that discharging an employee under
circumstances like those involved would jeopardize the policy (the jeopardy element); 3)
that the discharge at issue was motivated by conduct related to the policy (the causation
element); and 4) that there was no overriding business justification for the discharge
(the overriding justification element). Kulch v. Structural Fibers, Inc., 78 Ohio St. 3d

         2Plaintiff concedes on page 5 of his objections that “[t]he Magistrate correctly concluded that the

anti-retaliation provisions of Chapter 4112 did not cover Wantage’s refusal to act against Anunike, due to
Wantage’s lack of knowledge of Anunike’s history of having filed a Charge of Discrimination and union
grievance victory prior to his removal.” Thus, plaintiff appears to make no objections to the magistrate’s
decision with regard to his R.C. 4112 claim.
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134, 151, 1997-Ohio-219. The clarity and jeopardy elements are questions of law, while
causation and overriding justification elements are questions of fact.3                       Collins v.
Rizkana, 73 Ohio St.3d 65, 70, 1995-Ohio-135.


Clarity
        {¶7} Plaintiff argues that his supervisors “wanted Wantage to act as a ‘cat’s paw’
to retaliate against Anunike for his past successes in the union grievance procedure, a
public policy also embodied in R.C. 4117.03(A), and Anunike’s past filing of a Charge of
Discrimination with the Ohio Civil Rights Commission, a public policy explained in
R.C. Chapter 4112.” The magistrate concluded with regard to the “cat’s paw” theory
that “it is clear that Smith and O’Keeffe were higher up in the chain of command than
plaintiff was, and as such, plaintiff would not have been the decision-maker with regard
to any adverse employment action against Anunike. Therefore, the magistrate finds
that the cat’s paw theory does not apply in this case, but, that, even if it did, plaintiff has
failed to prove that any discriminatory animus that Smith and O’Keeffe held toward
Anunike was the but-for cause of plaintiff’s discharge.” (Mag. Decision, Pg. 15.)
        {¶8} It appears in his objections that plaintiff is trying to apply the “cat’s paw”
theory to the clarity element. The court agrees with the magistrate’s conclusion that the
“cat’s paw” theory does not apply in this case, as plaintiff was not a decision-maker with
regard to any adverse employment action against Anunike. Plaintiff also argues that his
refusal to sign-off on improper payments to Quasar Energy also qualifies as a clear
public policy. The magistrate determined that “[t]he evidence presented shows that all
of defendant’s employees were concerned with Quasar, that plaintiff was never asked to
sign off on any Quasar documents, and that when plaintiff’s subordinates refused to
sign off on Quasar documents, they were not disciplined.” (Mag. Decision, Pg. 14.)

        3As plaintiff failed to file a transcript, the court did not evaluate any objections related to the
causation and overriding justification elements. The court accepts the magistrate’s findings of fact and
conclusions related to these elements.
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The court agrees with the magistrate’s conclusion that plaintiff was not required to sign-
off on any Quasar documents, and thus his refusal to do so does not establish the
clarity element.     As such, any objections related to the clarity element are
OVERRULED.


Jeopardy
       {¶9} Plaintiff argues that “[t]he Magistrate wrongly stated the concept set forth in
Wiles regarding there being no need for a public policy tort if a sufficient generalized
(i.e. not aggrieved employee specific) remedy is available to vindicate society’s aims.”
Plaintiff’s objection does not differ from the law cited by the magistrate. The magistrate
correctly recognized the right of redress for an individual employee. (Mag. Decision,
Pg. 13.)   Plaintiff also references the Quasar payments again in his discussion on
jeopardy, and as discussed above, plaintiff was never asked to sign off on these
payments nor were any of his subordinates disciplined for their concerns about the
Quasar payments. Plaintiff’s objections with regard to the jeopardy element are not
well-taken and are OVERRULED.
       {¶10} Upon review of the record, the magistrate’s decision and the objections, the
court finds that the magistrate has properly determined the factual issues and
appropriately applied the law. Therefore, the objections are OVERRULED and the court
adopts the magistrate’s decision and recommendation as its own, including findings of
fact and conclusions of law contained therein.        Judgment is rendered in favor of
defendant. Court costs are assessed against plaintiff. The clerk shall serve upon all
parties notice of this judgment and its date of entry upon the journal.




                                                  PATRICK M. MCGRATH
                                                  Judge
Case No. 2013-00616            -6-                    JUDGMENT ENTRY


cc:
Gary A. Reeve                   Velda K. Hofacker
P.O. Box 7866                   Assistant Attorney General
Columbus, Ohio 43207            150 East Gay Street, 18th Floor
                                Columbus, Ohio 43215-3130

Filed June 1, 2016
Sent to S.C. Reporter 8/3/16
