[Cite as Holt v. Ohio Dept. of Youth Servs., 2010-Ohio-853.]

                                                         Court of Claims of Ohio
                                                                          The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                             Columbus, OH 43215
                                                                   614.387.9800 or 1.800.824.8263
                                                                              www.cco.state.oh.us




JAMES E. HOLT

        Plaintiff

        v.

OHIO DEPARTMENT OF YOUTH SERVICES, et al.

        Defendants
        Case No. 2008-05664

Judge Alan C. Travis

DECISION




        {¶ 1} On November 16, 2009, defendants filed a motion for summary judgment
pursuant to Civ.R. 56(C). On December 7, 2009, plaintiff filed a response. On January
8, 2010, the court held an oral hearing on the motion.
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
       {¶ 4} In 1977, plaintiff began his employment with defendant, Department of
Youth Services (DYS) as a corrections officer.1 Plaintiff was a member of a collective
bargaining unit (union).
       {¶ 5} On January 23, 2004, plaintiff was accused of using excessive force on a
juvenile in defendant’s custody. On January 27, 2004, plaintiff was placed on paid
administrative leave after an investigation report concluded that plaintiff had used
excessive force when he struck the juvenile. On February 9, 2004, plaintiff was placed
on disability leave for the condition of high blood pressure. On March 2, 2004, a pre-
disciplinary hearing was held regarding the excessive force complaint. On March 24,
2004, plaintiff’s employment was terminated. Plaintiff subsequently filed a grievance
and on October 1, 2004, an arbitration hearing was held. Plaintiff was represented by a
union steward at the arbitration. On October 28, 2004, plaintiff’s grievance was denied.
       {¶ 6} In his complaint, plaintiff asserts claims of employment discrimination,
intentional or negligent infliction of emotional distress, violation of 42 U.S.C. 1981, “bad
faith breach of contract,” “bad faith breach of employment relationship,” wrongful
termination in violation of public policy, and promissory estoppel.
       {¶ 7} Defendants assert that plaintiff’s employment discrimination claims are
barred by the doctrine of res judicata, based upon the outcome of a case that plaintiff
filed in federal court under the Age Discrimination in Employment Act (ADEA), 29
U.S.C. 621, et seq. The federal court found that plaintiff had failed to present a prima
facie case of age discrimination and granted defendants’ motion for summary judgment.
The Sixth Circuit Court of Appeals affirmed the decision of the district court.
       {¶ 8} Under the doctrine of res judicata, “[a] valid, final judgment rendered upon
the merits bars all subsequent actions based upon any claim arising out of the
transaction or occurrence that was the subject matter of the previous action.” Grava v.
Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, syllabus. “‘[O]nce [a] jurisdictional
issue has been fully litigated and determined by a court that has authority to pass upon
the issue, said determination is res judicata in a collateral action and can only be

       1
       “Defendant” shall be used to refer to DYS throughout this decision.
attacked directly by appeal.’”    Citicasters Co. v. Stop 26-Riverbend, Inc., 147 Ohio
App.3d 531, 2002-Ohio-2286, ¶33, quoting Squires v. Squires (1983), 12 Ohio App.3d
138, 141.
       {¶ 9} Defendants have attached to their motion a copy of the federal court
opinion wherein Magistrate Judge Terrence P. Kemp addressed the age discrimination
claim alleged by plaintiff in that case. The federal court entered summary judgment
against plaintiff on that claim, finding that he failed to establish a prima facie case of age
discrimination under the ADEA. Holt v. State of Ohio, Dept. of Youth Services, et al.
(Jan. 4, 2008), S.D. Ohio No. 2:05-CV-0894. Defendants also attached to their motion
a copy of the federal appeals court decision which affirmed the district court’s grant of
summary judgment. Holt v. State of Ohio, Dept. of Youth Services, et al. (March 4,
2009), C.A.6 No. 08-3181.
       {¶ 10} In his response to defendants’ motion, plaintiff asserts that he is not
seeking relief pursuant to the ADEA in this court, rather, he is seeking relief based upon
the statutes and authority under Ohio law. However, state courts apply federal case law
interpreting Title 42 U.S. Code to matters involving alleged violations of R.C. 4112.
Little Forest Med. Ctr. v. Ohio Civil Rights Comm. (1991), 61 Ohio St.3d 607, 609-610.
       {¶ 11} Plaintiff further argues that the federal court either failed to address or
erroneously determined all of the factual issues and legal theories arising from his
allegations that his employment was wrongfully terminated while he was on disability
leave. However, whether plaintiff’s original action explored all possible theories of relief
is not relevant. “It has long been the law of Ohio that ‘an existing final judgment or
decree between the parties to litigation is conclusive as to all claims which were or
might have been litigated in a first lawsuit.’ * * * The doctrine of res judicata requires a
plaintiff to present every ground for relief in the first action, or be forever barred from
asserting it.”   Natl. Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 62,
quoting Rogers v. Whitehall (1986), 25 Ohio St.3d 67, 69.
       {¶ 12} Furthermore, the doctrine of res judicata “‘applies to extinguish a claim by
the plaintiff against the defendant even though the plaintiff is prepared in the second
action (1) To present evidence or grounds or theories of the case not presented in the
first action, or (2) To seek remedies or forms of relief not demanded in the first action.’”
Grava, supra, at 383, quoting 1 Restatement of the Law 2d, Judgments (1982) 209,
Section 25. Had plaintiff believed that the district court failed to address issues raised
by his complaint, plaintiff should have raised those issues in his appeal.
       {¶ 13} Upon review, the court finds that the facts alleged in plaintiff’s complaint
arise out of the occurrence that was the subject matter of the case which he filed in
federal court, namely, his termination from employment. Accordingly, the court finds
that the doctrine of res judicata bars plaintiff’s claims in this case. Consequently, there
are no genuine issues of material fact and defendants are entitled to judgment as a
matter of law.
       {¶ 14} Additionally, to the extent that plaintiff now alleges that his constitutional
and civil rights were violated, it is well-settled that such claims are not actionable in the
Court of Claims. See Burkey v. Southern Ohio Correctional Facility (1988), 38 Ohio
App.3d 170, 171; Thompson v. Southern State Community College (June 15, 1989),
Franklin App. No. 89AP-114. Therefore, Count II of plaintiff’s complaint, wherein he
asserts a violation of his civil rights pursuant to 42 U.S.C. 1981 must fail.
       {¶ 15} Similarly, inasmuch as Counts III and IV of plaintiff’s complaint set forth
claims of breach of his union contract, the Court of Claims lacks jurisdiction over such
actions. R.C. 4117.09(B)(1); Moore v. Youngstown State University (1989), 63 Ohio
App.3d 238. Defendants are also entitled to judgment as a matter of law as to Count VI
of plaintiff’s complaint alleging promissory estoppel, inasmuch as plaintiff has not
identified any promise made to him by his employer, apart from those contained in his
union contract.
       {¶ 16} Count    V   of   plaintiff’s   complaint   asserts   claims   of   employment
discrimination in violation of public policy. The Supreme Court of Ohio has held that a
common-law tort claim for wrongful discharge in violation of Ohio’s public policy does
not exist where statutory remedies such as R.C. 4112 provide complete relief.
Leininger v. Pioneer National Latex, 115 Ohio St.3d 311, 2007-Ohio-4921; see also
Slane v. MetaMateria Partners, LLC, 176 Ohio App.3d 459, 2008-Ohio-2426. In this
case, both federal and state laws against age, race, and disability discrimination provide
complete relief and therefore, plaintiff cannot state a claim for wrongful discharge.
Moreover, plaintiff’s employment was governed by a collective bargaining agreement.
The public policy tort is available only to at-will employees. Greeley v. Miami Valley
Maintenance Contractors, Inc. (1990), 49 Ohio St.3d 228.
        {¶ 17} Lastly, Count I of plaintiff’s complaint asserts claims for negligent and/or
intentional infliction of emotional distress. Ohio law does not recognize a cause of
action for negligent infliction of emotional distress in the employment setting. Antalis v.
Ohio Dept. of Commerce (1990), 68 Ohio App.3d 650, 653. Moreover, termination of
employment, even if discriminatory, in and of itself cannot rise to the level of extreme
and outrageous conduct required to prove intentional infliction of emotional distress.
Godredson v. Hess & Clark (6th Cir. 1999), 173 F.3d 365. See also Kung v. Dept. of
Insurance, Ct. of Cl. No. 2007-02033, 2009-Ohio-5328. Plaintiff has not pleaded facts
upon which the court can infer the level of conduct required to prove intentional infliction
of emotional distress.
        {¶ 18} Construing the evidence most strongly in plaintiff’s favor, the court finds
that no genuine issues of material fact exist and that defendants are entitled to
judgment as a matter of law.             Defendants’ motion for summary judgment shall be
granted and judgment shall be rendered in favor of defendants.2




                                                       Court of Claims of Ohio
                                                                                    The Ohio Judicial Center
                                                                            65 South Front Street, Third Floor
                                                                                       Columbus, OH 43215
                                                                             614.387.9800 or 1.800.824.8263
                                                                                        www.cco.state.oh.us




JAMES E. HOLT

       Plaintiff

       v.



        2
            On December 1, 2009, plaintiff filed a motion to suppress the arbitrator’s decision which denied
plaintiff’s grievance. On December 7, 2009, defendants filed a response. For the reasons stated herein,
plaintiff’s motion is DENIED.
OHIO DEPARTMENT OF YOUTH SERVICES, et al.

        Defendants
        Case No. 2008-05664

Judge Alan C. Travis

JUDGMENT ENTRY




          An oral hearing was conducted in this case upon defendants’ motion for
summary judgment.                For the reasons set forth in the decision filed concurrently
herewith, defendants’ motion for summary judgment is GRANTED and judgment is
rendered in favor of defendants. 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.




                                                _____________________________________
                                                ALAN C. TRAVIS
                                                Judge

cc:


Darryl O. Parker                                    Paula Luna Paoletti
786 South Front Street                              Susan M. Sullivan
Columbus, Ohio 43206                                Assistant Attorneys General
                                                    150 East Gay Street, 18th Floor
                                                    Columbus, Ohio 43215-3130

HTS/cmd
Filed February 8, 2010
To S.C. reporter March 3, 2010
