[Cite as Kane v. Inpatient Med. Servs., Inc., 2019-Ohio-1975.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

KATE KANE                                                   C.A. No.   29087

        Appellant

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
INPATIENT MEDICAL SERVICES, INC.,                           COURT OF COMMON PLEAS
et al.                                                      COUNTY OF SUMMIT, OHIO
                                                            CASE No.   CV 2017-04-1400
        Appellees

                                  DECISION AND JOURNAL ENTRY

Dated: May 22, 2019



        CARR, Judge.

        {¶1}     Plaintiff-Appellant Kate Kane appeals from the judgments of the Summit County

Court of Common Pleas. This Court affirms in part, reverses in part, and remands the matter for

proceedings consistent with this opinion.

                                                       I.

        {¶2}     Defendant-Appellee Inpatient Medical Services, Inc. (“IMS”) provides hospitalist

services to hospitals and post-acute facilities. A hospitalist is a physician who works on-site at a

hospital practicing internal medicine. Ms. Kane was hired by IMS in June 2014 as the regional

vice president of operations.         Ms. Kane took leave under the Family Medical Leave Act

(“FMLA”) due to her pregnancies from June 29, 2015 to October 5, 2015, and November 21,

2016 to February 13, 2017. Prior to Ms. Kane’s second FMLA leave, Defendant-Appellee Island

Medical Management, LLC (“Island”) purchased IMS. The purchase closed October 1, 2016.

The morning Ms. Kane returned to work on February 13, 2017, Defendant Justin Meiser, the
                                                 2


vice president of finance of IMS, told Ms. Kane she was terminated as her position was being

eliminated.

       {¶3}    In April 2017, Ms. Kane filed a complaint against IMS, Island, and Mr. Meiser

alleging: (1) FMLA interference and retaliation; (2) gender discrimination; (3) discrimination in

violation of public policy; and (4) promissory estoppel.         In addition, Ms. Kane sought

declaratory judgment and a preliminary injunction related to a non-compete agreement. Ms.

Kane’s complaint included a jury demand.

       {¶4}    Thereafter, IMS, Island, and Mr. Meiser filed a motion pursuant to Civ.R. 12(F)

to strike Ms. Kane’s jury demand based upon a waiver contained in Ms. Kane’s employment

agreement. The trial court granted the motion.

       {¶5}    All of the parties moved for summary judgment; IMS and Island filed a joint

motion for summary judgment, whereas Mr. Meiser filed a separate motion. With respect to Ms.

Kane’s claim of FMLA interference, IMS and Island argued that Ms. Kane’s claim failed

because she was not entitled to reinstatement as her position was eliminated due to a reduction in

force (“RIF”). As to Ms. Kane’s FMLA retaliation claim, IMS and Island asserted that Ms. Kane

could not demonstrate a causal connection between the FMLA leave and her termination, and

thus failed to establish a prima facie case. Moreover, IMS and Island maintained that, even if

she could demonstrate a prima facie case for FMLA retaliation, she could not show that IMS’s

reason for terminating her was pretextual.

       {¶6}    Ms. Kane responded in opposition to IMS’s and Island’s motion. Ms. Kane

argued that she demonstrated that she was not restored to her original position. Further, while

IMS and Island maintained that Ms. Kane’s termination was part of a 15-20 RIF of IMS

employees, Ms. Kane pointed to evidence contained in two unsigned separation agreements in
                                                 3


order to demonstrate that IMS’s and Island’s stated reason was erroneous and instead was a

pretext. As to her claim for FMLA retaliation, Ms. Kane argued that because she was terminated

on her first day back from FMLA leave, the only inference that can be made is that she was

terminated for taking FMLA leave.

       {¶7}    In their reply brief, IMS and Island argued that the trial court should not consider

the separation agreements Ms. Kane relied on in her brief in opposition because they were

inadmissible under Evid.R. 408. With respect to the FMLA interference claim, IMS and Island

again argued that Ms. Kane was not entitled to reinstatement and that she could not demonstrate

IMS’s and Island’s stated reasons for her termination were a pretext. As to the FMLA retaliation

claim, IMS and Island maintained that Ms. Kane could not establish a prima facie case and, even

if she could, she could not demonstrate that the stated reason for her termination was pretextual.

       {¶8}    On June 1, 2018, the trial court awarded summary judgment to Mr. Meiser on Ms.

Kane’s complaint. On June 4, 2018, the trial court awarded summary judgment to IMS and

Island on Ms. Kane’s complaint. In the entry, the trial court concluded that exhibits 6 and 7,

which were the separation agreements Ms. Kane cited in support of her brief in opposition to

IMS’s and Island’s motion for summary judgment, were not admissible under Evid.R. 408.

Therefore, it declined to consider them in rendering judgment.

       {¶9}    With respect to the FMLA interference claim, it appears the trial court determined

that Ms. Kane was reinstated to her original position prior to her termination. Thus, the trial

court concluded that Ms. Kane failed to demonstrate a prima facie case. As to the claim for

FMLA retaliation, the trial court concluded that Ms. Kane failed to set forth a prima facie case.

The trial court noted that IMS and Island argued that Ms. Kane was terminated pursuant to the
                                                4


RIF, which was unrelated to her FMLA leave, and Ms. Kane made no argument in support of her

claim, aside from her argument concerning temporal proximity.

       {¶10} Ms. Kane has appealed, raising four assignments of error for our review. We note

that in her notice of appeal, Ms. Kane specified that she was appealing from the June 4, 2018

entry granting summary judgment to IMS and Island and the order striking her jury demand. In

addition, Ms. Kane has not listed Mr. Meiser as an appellee on her docketing statement.

Accordingly, issues related to the June 1, 2018 entry awarding Mr. Meiser summary judgment

are not before us.

                                               II.

                                ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN EXCLUDING EXHIBIT 6 AND EXHIBIT 7
       FROM ITS CONSIDERATION OF THE MOTION FOR SUMMARY
       JUDGMENT.

       {¶11} Ms. Kane argues in her first assignment of error that the trial court erred in failing

to consider exhibits 6 and 7 in ruling on the motion for summary judgment.

                                          Background

       {¶12} The exhibits at issue are two documents labeled as “Separation Agreement and

Release of Claims[.]” Exhibit 6 is the unsigned separation agreement between an Advanced

Healthcare Associates, LLP (“AHA”) employee and AHA. AHA was purchased by IMS in

February 2015 and was part of the agreement when Island purchased IMS in October 2016.

AHA is an Indiana based entity which provides post-acute care with offices in Indiana and

Kentucky. Exhibit 6 included an appendix that lists employees of AHA and notes whether or not

that person was selected for termination as part of the RIF. The list denotes 14 employees of

AHA terminated as part of the RIF. The list does not include Ms. Kane.
                                                    5


       {¶13} Exhibit 7 is the unsigned separation agreement between IMS and Ms. Kane.

Exhibit 7 provides that the group of individuals covered by the RIF program included Ms. Kane

and the chief executive officer. No other IMS employees are described as being included in the

RIF.

       {¶14} In her brief in opposition to IMS’s and Island’s motion for summary judgment,

Ms. Kane pointed out that, in response to an interrogatory asking the reason why she was

terminated, IMS and Island answered: “Shortly after Island purchased IMS * * *, Island decided

to conduct a reduction-in-force consisting of approximately 15-20 employees of IMS. Plaintiff

was included within this reduction-in-force due to the redundancy of her job duties.” (Emphasis

added.) Ms. Kane then argued that information in the separation agreements supported the

notion that Ms. Kane was not actually part of the RIF as she was not listed in the appendix to

exhibit 6. Ms. Kane asserted that such supported the notion that IMS and Island were not

truthful about their reasons for terminating her.

       {¶15} In their reply brief, IMS and Island moved the trial court to not consider exhibits 6

and 7 as they asserted the documents were not admissible pursuant to Evid.R. 408. IMS and

Island did not assert that the exhibits were inadmissible for any other reason. The trial court

agreed with IMS and Island and refused to consider the evidence.

                                                Law

       {¶16} “A trial court possesses broad discretion with respect to the admission of

evidence.” Wintrow v. Baxter-Wintrow, 9th Dist. Summit No. 29021, 2018-Ohio-5311, ¶ 9.

“The Supreme Court of Ohio has held that * * * a reviewing court should not disturb evidentiary

decisions in the absence of an abuse of discretion that has created material prejudice.” (Internal

quotations omitted.) Id., quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 66.
                                               6


“Evidence submitted with a motion for summary judgment is proper only if the evidence is

admissible at trial.” (Internal quotations and citations omitted.) Hudson Presbyterian Church v.

Eastminster Presbytery, 9th Dist. Summit No. 24279, 2009-Ohio-446, ¶ 19.

       {¶17} Evid.R. 408 provides:

       Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or
       offering or promising to accept, a valuable consideration in compromising or
       attempting to compromise a claim which was disputed as to either validity or
       amount, is not admissible to prove liability for or invalidity of the claim or its
       amount. Evidence of conduct or statements made in compromise negotiations is
       likewise not admissible. This rule does not require the exclusion of any evidence
       otherwise discoverable merely because it is presented in the course of
       compromise negotiations. This rule also does not require exclusion when the
       evidence is offered for another purpose, such as proving bias or prejudice of a
       witness, negativing a contention of undue delay, or proving an effort to obstruct a
       criminal investigation or prosecution.

       {¶18} “Evid.R. 408 does not prohibit all testimony regarding settlements but rather,

such evidence is admissible under the relevancy test set forth in Evid.R. 401 to impeach or show

bias of a witness.” Scott v. Braun, 7th Dist. Jefferson No. 94-J-13, 1995 WL 697836, *2 (Nov.

22, 1995); see also Cummins v. Great Door & Supply, Inc., 7th Dist. Mahoning No. 02-CA-61,

2003-Ohio-4455, ¶ 20; Taylor v. Davignon, 8th Dist. Cuyahoga No. 79019, 2001 WL 1110338,

*4 (Sept. 13, 2001) (concluding evidence of settlement was properly admitted to impeach

witnesses credibility). “Indeed, Evid.R. 408 provides that evidence of settlement may be used

for several purposes at trial * * *.” Ohio Consumers’ Counsel v. Pub. Util. Comm., 111 Ohio

St.3d 300, 2006-Ohio-5789, ¶ 92. “Evid.R. 408 is applicable only to bar the admission of

evidence which is offered to show that because a settlement offer was made, the offeror must be

liable, because people don’t offer to pay for things for which they are not liable.” (Internal

quotations omitted.) USCA/USA, Inc. v. High Tech Packaging, Inc., 6th Dist. Wood Nos. WD-
                                                7


05-088, WD-05-089, 2006-Ohio-6195, ¶ 34, quoting Boyle v. Daimler Chrysler Corp., 2d Dist.

Clark No. 2001-CA-81, 2002-Ohio-4199, ¶ 95.

                                           Discussion

       {¶19} On appeal, Ms. Kane argues that exhibits 6 and 7 were offered “to rebut IMS’s

claimed defense that [Ms. Kane] was part of a 15-20 employee RIF from IMS.” Thus, it appears

that Ms. Kane argues that the evidence was being offered to impeach IMS’s and Island’s

explanation as to why she was terminated. In response to the interrogatory requesting the reason

for Ms. Kane’s termination, IMS and Island answered that Ms. Kane was part of a RIF of

approximately 15-20 IMS employees. Exhibit 6 indicates 14 AHA employees were terminated

due to a RIF and exhibit 7 indicates that Ms. Kane and another IMS employee were included in

the RIF. Ms. Kane is not included in the list of employees in exhibit 6. Thus, exhibits 6 and 7

can be viewed to contradict the explanation for Ms. Kane’s termination provided in the answer to

the interrogatory.   The separation agreements do not appear to support that 15-20 IMS

employees were subject termination because of a RIF.

       {¶20} We agree that the trial court abused its discretion in refusing to consider exhibits 6

and 7 in its determination of the motion for summary judgment. Ms. Kane did not seek to rely

on exhibits 6 and 7 to show that “because a settlement offer was made, the offeror must be

liable[.]” USCA/USA, Inc., 2006-Ohio-6195, at ¶ 34. In fact it seems that it is only incidental

that the RIF information Ms. Kane seeks to utilize is contained in the separation agreements.

Ms. Kane does not seek to disclose the terms of the agreements or really even the existence of a

settlement agreement. Instead, Ms. Kane seeks to demonstrate that IMS’s and Island’s proffered

reason for termination was false. This is impeachment evidence. See Scott, 1995 WL 697836, at
                                                  8


*2. Further, in light of the fact that the reason for Ms. Kane’s termination is a central fact in this

matter, we also conclude Ms. Kane was prejudiced by the omission of the evidence.

       {¶21} Ms. Kane’s first assignment of error is sustained.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO
       THE DEFENDANTS FOR KATE’S CLAIM OF FMLA INTERFERENCE.
       THERE ARE FACTUAL ISSUES AS TO WHETHER IMS’ PROFFERED
       REASONS FOR FIRING KATE ARE TRUE. THE DEFENDANTS ARE
       LIABLE FOR FMLA INTERFERENCE BECAUSE THEY DID NOT
       RESTORE KATE TO HER ORIGINAL POSITION.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO
       THE DEFENDANTS FOR KATE’S CLAIM OF FMLA RETALIATION.
       THERE ARE FACTUAL ISSUES AS TO WHETHER IMS’S PROFFERED
       REASONS FOR FIRING KATE ARE TRUE. THE DEFENDANTS ARE
       LIABLE FOR FMLA RETALIATION BECAUSE THEY FIRED KATE THE
       DAY SHE RETURNED TO WORK AND NOT ON THE DATE THEY CLAIM
       THEY DECIDED ON THE RIF.

       {¶22} Ms. Kane argues in her second assignment of error that the trial court erred in

granting summary judgment to IMS and Island on her claim of FMLA interference. Ms. Kane

argues in her third assignment of error that the trial court erred in granting summary judgment to

IMS and Island on her FMLA retaliation claim.

       {¶23} In light of the fact that this Court has concluded that the trial court improperly

excluded exhibits 6 and 7 from its consideration in ruling on the motion for summary judgment,

we conclude that the trial court must first consider that evidence, along with the remainder of the

evidence, and then determine whether summary judgment was appropriate.                This Court is

mindful that it is a reviewing court and it is not its role to consider arguments and evidence that

were not first considered by the trial court. See McAllister v. Myers Industries, Inc., 9th Dist.
                                                 9


Summit No. 29040, 2019-Ohio-773, ¶ 23 (“This Court is a reviewing Court, and as such, we

would be exceeding the scope of our role if we were to consider this in the first instance.”).

       {¶24} Ms. Kane’s second and third assignments of error are sustained to the limited

extent that we conclude that the trial court erred in awarding summary judgment without

considering exhibits 6 and 7 in its review.

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED IN STRIKING THE JURY DEMAND.

       {¶25} Ms. Kane argues in her fourth assignment of error that the trial court erred in

striking her jury demand.     Ms. Kane argues that the jury trial waiver in her employment

agreement did not encompass her claims and that her right to a jury trial was not voluntarily,

knowingly, and intelligently waived. Ms. Kane has not argued that the presence of a jury trial

waiver in an employment agreement is inherently problematic.

       {¶26} The waiver at issue is contained in Ms. Kane’s employment agreement. It reads:

       Waiver of Jury trial. EACH PARTY HERETO ACKNOWLEDGES AND
       AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
       AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
       ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND
       UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE
       TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
       INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
       AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION
       HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
       THEREBY.

(Emphasis in original.)

       {¶27} Ms. Kane asserts that her discrimination claims fall outside the scope of the

waiver because the waiver does not expressly reference discrimination claims. Ms. Kane has not

pointed to any authority that would require that a jury trial waiver be that specific in order to be

valid. See App.R. 16(A)(7). Undoubtedly, the waiver provision is broad. It encompasses “any
                                                 10


litigation directly or indirectly arising out of or relating to this agreement and any of the

agreements delivered in connection herewith or the transactions contemplated hereby or

thereby.” This Court must conclude that Ms. Kane’s claims alleging discriminatory termination

at the very least indirectly arise out of or relate to Ms. Kane’s employment agreement. The

employment agreement defines the parties’ employment relationship and includes a section

concerning termination. Ms. Kane’s claims of discriminatory termination necessarily arise out

that employment relationship.

        {¶28} Ms. Kane additionally argues that she did not voluntarily, knowingly, and

intelligently waive her right to a jury trial.

        {¶29} “Both Article I, Section 5 of the Ohio Constitution and Civ.R. 38(A) provide that

the right to a trial by jury is inviolate.” Princess Kim, L.L.C. v. U.S. Bank, N.A., 9th Dist.

Summit No. 27401, 2015-Ohio-4472, ¶ 6.           Nonetheless, “[t]he Ohio Supreme Court has

recognized that parties may waive the right to a trial by jury without offending the constitutional

protection.” Id. at ¶ 9, citing Cassidy v. Glossip, 12 Ohio St.2d 17 (1967), paragraph one of the

syllabus.    “As long as circumstances do not indicate that the waiver was entered into

unknowingly or involuntarily or that one party had no meaningful choice in the transaction but to

agree to the jury waiver, such waivers have routinely been upheld by courts in Ohio and

elsewhere[.]” (Internal quotations omitted.) Princess Kim, L.L.C. at ¶ 9, quoting Garcia v.

Wayne Homes, LLC, 2d Dist. Clark No. 2001 CA 53, 2002 WL 628619, *10 (Apr. 19, 2002).

        {¶30} Federal courts often use a five-factor test in evaluating whether a jury waiver was

entered into knowingly, voluntarily, and intelligently; this test has also been used in cases

involving waivers contained in employment agreements. See Hooper v. Ideal Image Dev. Corp.,

M.D.Florida No. 8:14-CV-2778-T-30EAJ, 2015 WL 1508494, *1 (Apr. 1, 2015). Under this
                                                11


test, courts consider “1) the conspicuousness of the provision of the contract; 2) the level of

sophistication and experience of the parties entering into the contract; 3) the opportunity to

negotiate terms of the contract; 4) the relative bargaining power of each party; and 5) whether the

waiving party was represented by counsel.” Id. “No single factor is determinative; rather, the

Court must determine whether, in light of all the circumstances, the Court finds the waiver to be

unconscionable, contrary to public policy, or simply unfair.” (Internal quotations and citations

omitted.) Id.

       {¶31} We note that while the provision appears towards the end of the agreement, the

provision is nonetheless conspicuous as it appears in all capital letters while most of the

agreement does not. See id. Ms. Kane has not argued she was unaware that the provision was in

the agreement.    Ms. Kane is a college-educated professional with experience negotiating

contracts. See id. In fact, there was evidence that Ms. Kane negotiated a higher salary prior to

accepting an offer of employment. There was no evidence presented that would indicate Ms.

Kane did not have a meaningful choice with respect to the waiver.        See Princess Kim, L.L.C.,

2015-Ohio-4472, at ¶ 9.      And while the record does not indicate whether Ms. Kane was

represented by counsel at the time she was offered a job, the employment agreement does

contains a clause indicating that Ms. Kane “had the opportunity for th[e] Agreement to be

reviewed by counsel[.]” See Hooper at *1.         Ms. Kane’s mere assertions that she did not

understand she would be waiving her right to a jury trial for these claims is insufficient under the

circumstances to demonstrate that the waiver was not entered into voluntarily, knowingly, and

intelligently. We cannot say that the waiver is unduly complicated or confusing such that

someone of Ms. Kane’s background would not have understood the scope of the right she was

waiving.
                                                12


       {¶32} Ms. Kane’s fourth assignment of error is overruled.

                                                III.

       {¶33} Ms. Kane’s first assignment of error is sustained. Ms. Kane’s second and third

assignments of error are sustained to the extent discussed above. Ms. Kane’s fourth assignment

of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed

in part, reversed in part, and the matter is remanded for proceedings consistent with this decision.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                       DONNA J. CARR
                                                       FOR THE COURT
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TEODOSIO, P. J.
SCHAFER, J.
CONCUR.

APPEARANCES:

BRETT M. MANCINO, Attorney at Law, for Appellant.

ROBERT E. BLACKHAM, PAUL L. JACKSON, and NATHAN PANGRACE, Attorneys at
Law, for Appellee.
