[Cite as Nemcek v. Northeast Ohio Regional Sewer Dist., 2012-Ohio-5516.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98431




                                   THOMAS NEMCEK
                                                          PLAINTIFF-APPELLANT

                                                    vs.

                       NORTHEAST OHIO REGIONAL
                         SEWER DISTRICT, ET AL.
                                                          DEFENDANTS-APPELLEES




                                           JUDGMENT:
                                            AFFIRMED



                                     Civil Appeal from the
                              Cuyahoga County Common Pleas Court
                                     Case No. CV-755787

        BEFORE: S. Gallagher, J., Sweeney, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: November 29, 2012
ATTORNEY FOR APPELLANT

Patrick M. Farrell
Patrick M. Farrell Co., LPA
600 E. Granger Road, 2nd Floor
Brooklyn Heights, OH 44131

ATTORNEYS FOR APPELLEES

Warren Rosman
John S. Kluznik
Weston Hurd LLP
Tower at Erieview
1301 East 9th Street, Suite 1900
Cleveland, OH 44114

Marlene Sundheimer
Director of Law
Lawrence K. English
Regina M. Massetti
Assistant Directors of Law
N.E.O.R.S.D.
3900 Euclid Avenue
Cleveland, OH 44115
SEAN C. GALLAGHER, J.:

       {¶1} Plaintiff-appellant, Thomas Nemcek, appeals the judgment of the Cuyahoga

County     Court    of   Common       Pleas    that   granted    summary     judgment      on   a

hostile-work-environment claim in favor of defendants-appellees, Northeast Ohio

Regional Sewer District (“NEORSD”), et al. For the reasons stated herein, we affirm.

       {¶2} Nemcek was employed by NEORSD from February 1978 until June 2010.

From September 1987 until his departure, he was employed as a shift supervisor at

NEORSD’s Southerly Wastewater Treatment Plant.                  During the latter part of his

employment, Nemcek applied for more than 20 shift-manager positions, but he was not

awarded any of these positions. He claims he was subjected to unwelcome verbal conduct

and harassment by management members of NEORSD.

       {¶3} On May 20, 2011, Nemcek filed a complaint against NEORSD and several
                                           1
individual employees of NEORSD.                 Nemcek alleged claims for hostile work

environment and age discrimination.             Thereafter, Nemcek elected to bring his

age-discrimination claim under R.C. 4112.14, rather than R.C. 4112.02(N).2

       1
            The named employees included Julius Ciaccia, Jr., Michael Bucci, David McNeely,
Raymond Weeden, Lawrence Cinadr, John Augustine, Terry Robinson, Terry Meister, Tom Wohlfeil,
and George Schur. Defendants Meister and Wohlfeil were later dismissed from the action for failure
of service and lack of personal jurisdiction.
       2
         We note that R.C. 4112.14 is governed by a six-year statute of limitations, while R.C.
4112.02(N) is governed by a 180-day statute of limitations.
       {¶4} Upon defendants’ motion, the trial court dismissed the age-discrimination

claim on November 30, 2011. Subsequently, the court issued a nunc pro tunc entry on

January 9, 2012. The trial court found that the age-discrimination claim failed as a matter

of law because it was based on the denial of a promotion and the scope of R.C. 4112.14 is

restricted to hirings or firings.

       {¶5} After the close of discovery, defendants filed a motion for summary judgment

on the hostile-work-environment claim. Nemcek filed a motion to compel discovery and

for sanctions and submitted a brief in opposition to the motion for summary judgment.

The trial court denied Nemcek’s motion to compel discovery and for sanctions. On May

3, 2012, the trial court granted summary judgment in favor of defendants. The court

found in relevant part:

       Although [Nemcek] is a member of a protected class (age), [he] has failed to
       prove the necessary elements to establish a claim under R.C. 4112. It is
       clear from the evidence submitted by the parties, that plaintiff was not
       subjected to ridicule, harassment or insults based on age * * * .
       Furthermore, * * * a reasonable person would not find the alleged acts by the
       defendants to be hostile or abusive.

       {¶6} Nemcek timely filed this appeal. He raises two assignments of error for our

review. His first assignment of error challenges the trial court’s decision to deny his

motion to compel discovery.

       {¶7} We review the denial of a motion to compel discovery for an abuse of

discretion. State ex rel. V Cos. v. Marshall, 81 Ohio St.3d 467, 469, 1998-Ohio-329, 692

N.E.2d 198.        An abuse of discretion requires an unreasonable, arbitrary, or

unconscionable decision. Id.
       {¶8} “Ohio has a liberal discovery policy which, subject to privilege, enables

opposing parties to obtain from each other all evidence that is material, relevant and

competent, notwithstanding its admissibility at trial.” Fletcher v. Nationwide Mut. Ins.

Co., 2d Dist. No. 02CA1599, 2003-Ohio-3038, ¶ 14, citing Civ.R. 26(B)(1). While

discovery should be liberally allowed, a trial court is vested with broad discretion in

discovery matters. Roe v. Planned Parenthood S.W. Ohio Region, 122 Ohio St.3d 399,

2009-Ohio-2973, 912 N.E.2d 61, ¶ 82. Moreover, a trial court has discretion to limit

pretrial discovery to prevent an abuse of the discovery process. Arnold v. Am. Natl. Red

Cross, 93 Ohio App.3d 564, 575, 639 N.E.2d 484 (8th Dist.1994).

       {¶9} In his motion to compel, Nemcek sought to compel appellees to answer all

questions asked during the defendants’ depositions.         Nemcek claimed that defense

counsel directed his clients not to answer certain questions posed during the depositions

and also refused to provide some information discovered during the course of the

depositions.

       {¶10} A review of the questioning reflects that defense counsel objected to certain

questions on the grounds that they were irrelevant and unrelated to the remaining

harassment claim. The questions primarily pertained to the qualifications and experience

of the candidates awarded positions for which Nemcek had applied, and the criteria and

considerations for awarding the positions. While the best approach is to liberally allow

questions and answers related to the topic at hand, the subject questions here dealt with the

age discrimination claim that had been dismissed by the court.
         {¶11} Nonetheless, Nemcek argues that defense counsel committed certain

discovery violations and prevented the discovery of relevant evidence. However, he fails

to show how the proffered questions were relevant to the establishment of his

hostile-work-environment claim. Furthermore, the record reflects that the depositions

were completed on March 1, 2012, yet Nemcek waited over a month to file his motion to

compel, which was also after the defendants’ motion for summary judgment had been

filed.

         {¶12} Civ.R. 26(B), which sets forth the scope of discovery, provides that in

general, “[p]arties may obtain discovery regarding any matter, not privileged, which is

relevant to the subject matter involved in the pending action * * *.” Because Nemcek

failed to demonstrate the relevance of the objected matter, we find no abuse of discretion

by the trial court. See Baynard v. Oakwood Village, 8th Dist. No. 71711, 1997 Ohio App.

LEXIS 4652 (Oct. 16, 1997). Nemcek’s first assignment of error is overruled.

         {¶13} Nemcek’s second assignment of error challenges the trial court’s decision to

grant summary judgment in favor of the defendants. Appellate review of summary

judgment is de novo, governed by the standard set forth in Civ.R. 56. Comer v. Risko,

106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Accordingly, we afford no

deference to the trial court’s decision and independently review the record to determine

whether summary judgment is appropriate. Hollins v. Shaffer, 182 Ohio App.3d 282,

2009-Ohio-2136, 912 N.E.2d 637, ¶ 12 (8th Dist.).           Under Civ.R. 56(C), summary

judgment is proper when the moving party establishes that
      (1) no genuine issue of any material fact remains, (2) the moving party is
      entitled to judgment as a matter of law, and (3) it appears from the evidence
      that reasonable minds can come to but one conclusion, and construing the
      evidence most strongly in favor of the nonmoving party, that conclusion is
      adverse to the party against whom the motion for summary judgment is
      made.

State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826

N.E.2d 832, ¶ 9, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d

267 (1977).

      {¶14} To establish a claim under R.C. Chapter 4111 for hostile work environment,

a plaintiff must establish: (1) the employee was a member of a protected class; (2) the

employee was subjected to unwelcome harassment; (3) the harassment was based on the

employee’s status as a member of a protected class; (4) the harassment had the purpose or

effect of unreasonably interfering with the employee’s work performance or creating an

intimidating, hostile, or offensive work environment; and (5) the existence of respondeat

superior liability. Simmons-Means v. Cuyahoga Cty. Dept. of Justice Affairs, 8th Dist.

No. 87303, 2006-Ohio-4123, ¶ 22.       A hostile work environment exists “[w]hen the

workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ * * * that

is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and

create an abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21,

114 S.Ct. 367, 126 L.Ed.2d 295 (1993), quoting Meritor Sav. Bank, FSB v. Vinson, 477

U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). For there to be an actionable claim, a

hostile work environment “must be both objectively and subjectively offensive, one that a

reasonable person would find hostile or abusive, and one that the victim in fact did
perceive to be so.” Faragher v. Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141

L.Ed.2d 662 (1998), citing Harris at 21-22. Furthermore, “no matter how severe or

pervasive the conduct, harassment does not constitute a discriminatory practice under R.C.

4112.02(A) unless based on a prohibited classification.” Hampel v. Food Ingredients

Specialties, Inc., 89 Ohio St.3d 169, 184-185, 2000-Ohio-128, 729 N.E.2d 726.

       {¶15} Nemcek states that he is a member of a protected class because of his age.

He claims he was subjected to unwelcome verbal conduct and harassment by appellees.

Nemcek asserts that he was denied a promotion over 20 times during the latter part of his

career and that he was equally, if not more, qualified than those promoted over him. He

argues that there were several instances in which appellees urged him to get further

education or take further hours of continuing education to enhance his chances for

promotion. He also claims he was excluded from management classes that were offered.

Further, he states that he was told to get a bachelor’s degree when he was near the age of

60, yet younger persons were promoted without bachelor’s degrees.           Among other

conduct, the alleged harassment also included being told he had no chance of becoming a

shift manager, being called a union steward when he had not held that position in years,

being told he had deficiencies without being told what the deficiencies were, and not being

responded to when he inquired about what he could improve upon. Nemcek also argues

his claims of a hostile-work-environment were never addressed by appellees, despite being

repeatedly raised.
       {¶16} A review of Nemcek’s compiled list of alleged harassing conduct does not

show any actions that a reasonable person would find hostile or abusive. Nor does the

evidence show that the alleged harassment, which spanned several years, was severe or

pervasive, or permeated the workplace. In large part, the complained conduct reflects

Nemcek’s dissatisfaction with appellees’ actions in promoting others over him and with

their responses to his efforts to obtain a shift-manager position.

       {¶17} Additionally, there was no evidence that Nemcek was harassed based on any

protected status.    As appellees argue, there were no statements made concerning

Nemcek’s age. More significantly, while Nemcek may have been dissatisfied with the

actions of appellees and frustrated by his failure to be awarded a shift-manager position,

there is an utter lack of evidence that the complained conduct occurred because of

Nemcek’s age. To the contrary, there was evidence concerning Nemcek’s workplace

performance and his communication issues to explain why he was not deemed a viable

candidate for a promotion.

       {¶18} Because there is no genuine issue of fact regarding Nemcek’s

hostile-work-environment claim, the trial court properly granted summary judgment in

favor of appellees. Nemcek’s second assignment of error is overruled.

       {¶19} Judgment affirmed.

       It is ordered that appellees recover from appellant 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 Procedure.




SEAN C. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and
KENNETH A. ROCCO, J., CONCUR
