[Cite as Davidson v. Ziegler Tire & Supply Co., 2013-Ohio-2655.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



ROBERT J. DAVIDSON                                         JUDGES:
                                                           Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant                                Hon. Sheila G. Farmer, J.
                                                           Hon. John W. Wise, J.
-vs-
                                                           Case No. 2012 CA 00165
ZIEGLER TIRE AND SUPPLY CO.

        Defendant-Appellee                                 OPINION




CHARACTER OF PROCEEDING:                               Civil Appeal from the Court of Common
                                                       Pleas, Case No. 2012 CV 00104


JUDGMENT:                                              Affirmed



DATE OF JUDGMENT ENTRY:                                June 24, 2013



APPEARANCES:

For Plaintiff-Appellant                                For Defendant-Appellee

MICHAEL B. BOWLER                                      KRISTEN S. MOORE
VINCENT V. VIGLUICCI                                   DANIEL E. CLEVENGER
BLAKEMORE, MEEKER & BOWLER                             DAY KETTERER
19 North High Street                                   200 Market Avenue North, Suite 300
Akron, Ohio 44308                                      Canton, Ohio 44702
Stark County, Case No. 2012 CA 00165                                                   2

Wise, J.

       {¶1}   Plaintiff-Appellant Robert J. Davidson appeals the decision of the Court of

Common Pleas, Stark County, which granted summary judgment in favor of Defendant-

Appellee Ziegler Tire and Supply Co. on appellant’s civil complaint for age

discrimination and breach of contract. The relevant facts leading to this appeal are as

follows.

       {¶2}   Appellant Robert J. Davidson was hired as the general manager of

Appellee Ziegler Tire & Supply Company in June 2001. The hiring decision was made

by appellee’s president, William Ziegler. In order to take the job with Appellee Ziegler

Tire, appellant left his position as Michelin Tire's director of national dealer sales.

Appellant had been employed with Michelin Tire for twenty-two years.

       {¶3}   Mr. Ziegler terminated appellant in June 2009. At the time of his

termination, appellant was fifty-five years old and the company’s highest-paid employee.

According to appellant, he was replaced by Nathan Clements, who was thirty-three

years old.

       {¶4}   On May 17, 2010, appellant filed a complaint in the Stark County Court of

Common Pleas (case no. 2010-CV-01936), in which he claimed age discrimination

under R.C. 4112.14, breach of contract, and unjust enrichment. In January 2011,

appellant voluntarily dismissed that complaint without prejudice.

       {¶5}   On January 9, 2012, appellant again filed a complaint in the Stark County

Court of Common Pleas (case no. 2012-CV-00104), in which he claimed age

discrimination under R.C. 4112.14 and breach of contract. Appellee filed an answer on

January 24, 2012.
Stark County, Case No. 2012 CA 00165                                                  3


      {¶6}   In a scheduling order dated February 14, 2012, the trial court set a

number of deadlines, including a discovery cut-off date of October 5, 2012.

      {¶7}   On April 3, 2012, appellee filed a motion for summary judgment. Appellant

filed a memorandum in opposition to summary judgment on May 2, 2012. On August 3,

2012, appellee filed a supplemental motion for summary judgment.

      {¶8}   On August 14, 2012, prior to appellant responding to the supplemental

motion for summary judgment, the trial court issued a judgment entry granting summary

judgment in favor of appellee. Appellant’s trial counsel, apparently prior to becoming

aware of said summary judgment entry, filed a memorandum in opposition to appellee’s

supplemental motion for summary judgment, which was filed with the court on August

16, 2012.

      {¶9}   On August 27, 2012, appellant filed a “motion for reconsideration” of the

granting of summary judgment. The trial court did not address the reconsideration

request.

      {¶10} On September 11, 2012, appellant filed a notice of appeal. He herein

raises the following three Assignments of Error:

      {¶11} “I.    THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE

ZIEGLER TIRE       &   SUPPLY     CO.    SUMMARY      JUDGMENT       ON       APPELLANT

DAVIDSON’S AGE DISCRIMINATION CLAIM BECAUSE THERE IS A GENUINE

DISPUTE AS TO WHETHER APPELLANT DAVIDSON WAS REPLACED BY NATHAN

CLEMENTS, A SUBSTANTIALLY YOUNGER INDIVIDUAL.

      {¶12} “II.   THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE

ZIEGLER TIRE       &   SUPPLY     CO.    SUMMARY      JUDGMENT       ON       APPELLANT
Stark County, Case No. 2012 CA 00165                                                        4


DAVIDSON’S BREACH OF CONTRACT CLAIM BECAUSE THERE IS A GENUINE

DISPUTE AS TO WHETHER APPELLANT DAVIDSON HAD AN EMPLOYMENT

CONTRACT WITH APPELLEE ZIEGLER TIRE & SUPPLY CO.

       {¶13} “III.   THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE

ZIEGLER TIRE & SUPPLY CO. SUMMARY JUDGMENT ON ALL OF APPELLANT

DAVIDSON’S CLAIMS ON AUGUST 14, 2012, ALMOST TWO MONTHS IN ADVANCE

OF THE OCTOBER 5, 2012 DISCOVERY CUTOFF DATE ESTABLISHED BY THE

COURT, WHEN THE PLAINTIFF PREVIOUSLY HAD CRITICAL DISCOVERY

DEPOSITIONS SCHEDULED AND NOTICED FOR AUGUST 21 AND AUGUST 24,

2012. FURTHERMORE, THE TRIAL COURT DID NOT GIVE APPELLANT DAVIDSON

AN OPPORTUNITY TO RESPOND TO APPELLEE'S SUPPLEMENTAL MOTION FOR

SUMMARY JUDGMENT IN ACCORDANCE WITH ITS SCHEDULING ORDER.”

                                                 I.

       {¶14} In his First Assignment of Error, appellant contends the trial court erred in

granting summary judgment in favor of appellee on the issue of age discrimination,

specifically regarding his assertion of replacement by a younger worker. We disagree.

       {¶15} Civ.R. 56(C) provides: “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. * * * 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
Stark County, Case No. 2012 CA 00165                                                     5


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. * * *.”

       {¶16} As an appellate court reviewing summary-judgment issues, we must stand

in the shoes of the trial court and conduct our review on the same standard and

evidence as the trial court. Porter v. Ward, Richland App. No. 07 CA 33, 2007–Ohio–

5301, 2007 WL 2874308, ¶ 34, citing Smiddy v. Wedding Party, Inc. (1987), 30 Ohio

St.3d 35, 30 OBR 78, 506 N.E.2d 212. The party moving for summary judgment bears

the initial burden of informing the trial court of the basis for its motion and identifying

those portions of the record that demonstrate the absence of a genuine issue of

material fact. The moving party may not make a conclusory assertion that the

nonmoving party has no evidence to prove its case. The moving party must specifically

point to some evidence that demonstrates that the nonmoving party cannot support its

claim. If the moving party satisfies this requirement, the burden shifts to the nonmoving

party to set forth specific facts demonstrating that there is a genuine issue of material

fact for trial. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, citing

Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264. A fact is material when it

affects the outcome of the suit under the applicable substantive law. See Russell v.

Interim Personnel, Inc. (1999), 135 Ohio App.3d 301, 304, 733 N.E.2d 1186.

       {¶17} Under Ohio law, a prima facie case of age discrimination may be proved

either directly or indirectly. An employee “may establish a prima facie case of age

discrimination directly by presenting evidence, of any nature, to show that an employer

more likely than not was motivated by discriminatory intent.” Hoyt v. Nationwide Mut.
Stark County, Case No. 2012 CA 00165                                                   6

Ins. Co., Franklin App. No. 04AP–941, 2005–Ohio–6367, 2005 WL 3220192, ¶ 58,

quoting Mauzy v. Kelly Servs., Inc. (1996), 75 Ohio St.3d 578, 664 N.E.2d 1272,

paragraph one of the syllabus. Without direct proof of discrimination, an employee may

establish a prima facie claim of age discrimination indirectly by demonstrating 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 v. Bank One Trust Co., N.A.,

101 Ohio St.3d 175, 2004–Ohio–723, 803 N.E.2d 781, ¶ 20.

      {¶18} In the case sub judice, appellant focuses on the fourth criterion of Coryell,

supra, urging that a genuine issue of material fact exists as to whether he was

“replaced” by Nathan Clements, appellee’s comptroller, who was thirty-three years old

in 2009.1 Appellant concedes that neither Clements nor anyone else was given the title

of general manager after appellant was terminated.

      {¶19} In discovery, appellant received from Appellee Ziegler Tire a document

listing appellant’s former job duties and who replaced him in each duty. This document

indicates that Clements took over some or all of five job duties, set forth as: (1)

Responsibility for direct supervision of staff; (2) Review and preparation of annual

budgets; (3) Preparation of monthly salespersons’ commission for payroll; (4) Visiting

stores; and (5) Evaluating store managers. Appellant concedes that appellee listed a

total of seventeen job duties in the general manager position, but he urges that



1
   Appellant suggests that the depositions of employees Edward Ramey and Thomas
West would have supported his “replacement” argument in the trial court. However,
these depositions were scheduled for late August 2012, but were never accomplished
due to the August 14, 2012 granting of summary judgment. We will reach aspects of this
issue in the Third Assignment of Error.
Stark County, Case No. 2012 CA 00165                                                  7


Clements was given appellant’s “most important and primary job duties.” Appellant’s

Brief at 10, 12.

       {¶20} This Court has recognized that assumption of duties does not constitute

replacement. See Yannarell v. GBS Corp., Stark App.No. 2009CA00025, 2009–Ohio–

5254, ¶ 31, citing Valentine v. Westshore Primary Care Assoc., Cuyahoga App. No.

89999, 2008–Ohio–4450, ¶ 86 (additional citation omitted). Furthermore, “[a] person is

not replaced when another employee is assigned to perform the plaintiff's duties in

addition to other duties * * *. A person is replaced only when another employee is hired

or reassigned to perform the plaintiff's duties.” Id. (additional citations and internal

quotations omitted).

       {¶21} Upon review of the record, and in light of the aforesaid evidence, we

conclude appellant has failed to demonstrate a genuine issue of material fact as to a

prima facie case of age discrimination, as reasonable minds could only conclude that

Clements, the comptroller, was assigned some additional management duties and that

appellant was not replaced for purposes of an age discrimination claim.

       {¶22} Furthermore, we recognize that under Ohio law, if a plaintiff establishes a

prima facie case of age discrimination, the burden shifts to the employer to provide

some legitimate, nondiscriminatory reason for the action taken. Hoyt v. Nationwide Mut.

Ins. Co., supra, ¶ 59, citing Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 503,

575 N.E.2d 439. If the employer establishes a nondiscriminatory reason for termination,

the employee then bears the burden of showing that the employer's proffered reason

was a pretext for impermissible discrimination. Owens v. Boulevard Motel Corp. (Nov. 5,

1998), Franklin App. No. 97APE12–1728, 1998 WL 886502; Cruz v. S. Dayton
Stark County, Case No. 2012 CA 00165                                                    8

Urological Assoc., Inc. (1997), 121 Ohio App.3d 655, 659, 700 N.E.2d 675. Appellee

documented that it let forty-three employees go in 2008 and 2009 as part of a “reduction

in force” plan during the national economic downturn occurring at that time. More than

half those let go were under the age of forty. As a result of the reduction in force, the

duties that appellant had performed were redistributed among six or seven different

employees of appellee, including Clements. Thus, in the case sub judice, even if we

were to determine that appellant had at least established a prima facie case of age

discrimination, under the Coryell standard, on the basis that appellant’s discharge had

“permitted the retention” of Clements, we would conclude for summary judgment

purposes that appellee’s decision to terminate appellant under its reduction in force plan

was valid and nonpretextual.

      {¶23} Appellant's First Assignment of Error is overruled.

                                               II.

      {¶24} In his Second Assignment of Error, appellant contends the trial court erred

in granting summary judgment in favor of appellee on his claim that appellee breached

an employment contract with him. We disagree.

      {¶25} Generally, under Ohio law, at-will employment relationships may be

terminated by either party at any time for any reason not contrary to law. Escott v.

Timken Co., 153 Ohio App.3d 529, 795 N.E.2d 64, 2003-Ohio-3370, ¶ 12, citing Bucher

v. Sibcy Cline, Inc. (2000), 137 Ohio App.3d 230, 235, 738 N.E.2d 435. There is a

strong presumption of at-will employment under Ohio law. See Mers v. Dispatch Printing

Co. (1985), 19 Ohio St.3d 100, 102-103. However, there is a well-established exception

to the at-will doctrine based on contract theory; in other words, an employee may be
Stark County, Case No. 2012 CA 00165                                                     9


able to establish that there exists either an express or an implied contract to overcome

the presumption of an at-will relationship. See Reasoner v. Bill Woeste Chevrolet, Inc.

(1985), 134 Ohio App.3d 196, 200, 730 N.E.2d 992.

      {¶26} Appellant’s contract-based claim is essentially based on two components.

The first is a June 5, 2001 letter from William Ziegler setting forth specifics for the job

such as salary, bonuses, and an annual base salary increase. The second is a

memorandum written by appellant to William Ziegler in 2005. The memorandum

proposed a $5,000.00 increase in appellant’s base pay every three years instead of

every year, with three specific dates when these increases would initially go into effect:

July 1, 2007, July 1, 2010, and July 1, 2013. Appellant also proposed that upon

retirement, appellee would continue to cover appellant’s and his wife's medical benefits

until they died. However, appellant admitted in his deposition that these documents

provided no guarantee of a specific period of duration of employment. Davidson

Deposition at 71. Furthermore, upon his hire, appellant executed a receipt for the

company handbook and received same. The receipt document contains the following

language:

      {¶27} “I understand Ziegler Companies reserves the right to make changes in

the guidelines or their application as it deems appropriate, and these changes may be

made with or without notice. I also understand that employment is terminable at the will

of the employee or the company at any time, and that no representative of the company

other than the President has any authority to make any contrary agreement.” (Emphasis

added).
Stark County, Case No. 2012 CA 00165                                                    10


       {¶28} In addition, the employee handbook itself states that nothing described

therein “should be construed as a contractual obligation of the Ziegler Companies to its

employees or to any other persons.”

       {¶29} Appellant secondly relies on his recollection that William Ziegler “told me

that the last person out of the building to turn the lights out if they went broke would be

him, and the person before him would be me.” Davidson Deposition at 45. Appellant

maintains he had additional such conversations with Mr. Ziegler, and that Mr. Ziegler

once told appellant he would be the successor president. However, the Ohio Supreme

Court has recognized: “Standing alone, praise with respect to job performance and

discussion of future career development will not modify an employment-at-will

relationship. * * *. Helmick v. Cincinnati Word Processing Inc. (1989), 45 Ohio St.3d

131, 543 N.E.2d 1212, paragraph three of the syllabus. See, also, Weiper v. W.A. Hill &

Assoc. (1995), 104 Ohio App.3d 250, 258, 661 N.E.2d 796 (indicating that while such

praise might be interpreted as a “personal but objectively unfounded sense of job

security,” it does not alter the nature of at-will employment).

       {¶30} Upon review, we find appellant has failed to establish a genuine issue of

material fact regarding the existence of a valid express or implied contract of

employment with appellee.

       {¶31} Appellant's Second Assignment of Error is overruled.

                                               III.

       {¶32} In his Third Assignment of Error, appellant challenges the trial court's

handling of discovery and scheduling issues prior to the granting of summary judgment.
Stark County, Case No. 2012 CA 00165                                                   11


      {¶33} We have generally recognized that a trial court has the inherent authority

to manage its own proceedings and control its own docket. Love Properties, Inc. v.

Kyles, Stark App.No. 2006CA00101, 2007-Ohio-1966, ¶ 37, citing State ex rel. Nat. City

Bank v. Maloney, Mahoning App.No. 03 MA 139, 2003-Ohio-7010, ¶ 5. A decision

regarding the disposition of discovery issues is reviewed under an abuse of discretion

standard. Contini v. Ohio State Bd. of Edn., Licking App. No.2007CA0136, 2008-Ohio-

5710, ¶ 46 citing State ex rel. The V Companies v. Marshall (1998), 81 Ohio St.3d 467,

469, 692 N.E.2d 198.

      {¶34} In regard to appellant’s claim that he was prevented from deposing two

Ziegler Tire employees, we note that in Maschari v. Tone, 103 Ohio St.3d 411, 2004-

Ohio-5342, 816 N.E.2d 579, the Ohio Supreme Court determined that a party’s failure to

move the trial court, pursuant to Civ.R. 56(F), to delay consideration of a summary

judgment motion precludes that party from complaining on appeal of its inability to

conduct planned depositions. Id. at ¶ 20. Secondly, in regard to appellant’s claim that he

was not given enough time to respond to the supplemental motion for summary

judgment, the trial court specifically stated that its decision was based upon the motion

for summary judgment filed April 3, 2012 and upon plaintiff’s [appellant’s] opposition

filed May 2, 2012. As it appears the trial court did not rely upon or consider the

supplemental motion, we find appellant’s asserted error to be harmless.

      {¶35} Accordingly, upon review, we are unable to conclude the trial court abused

its discretion in managing the discovery and scheduling of this case.
Stark County, Case No. 2012 CA 00165                                               12


      {¶36} Appellant's Third Assignment of Error is overruled.

      {¶37} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.


By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
JWW/d 0604
Stark County, Case No. 2012 CA 00165                                         13


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




ROBERT J. DAVIDSON                        :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
ZIEGLER TIRE AND SUPPLY CO.               :
                                          :
       Defendant-Appellee                 :         Case No. 2012 CA 00165




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
