DAVID A STANLEY vs. CITY OF MIAMISBURG
RICHARD B. REILING, 130 W. Second Street, Suite 840, Dayton, Ohio 45402,
Atty. Reg. #0066118
Attorney for Plaintiffs-Appellants
GARY E. BECKER, Atty. Reg. #0012716 and BRIAN J. OCONNELL, Atty. Reg.
#0059276, 1900 Chemed Center, 255 East Fifth Street, Cincinnati, Ohio 45202
Attorneys for Defendants-Appellees
. . . . . . . . . . . . .
BROGAN, J.

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
DAVID A. STANLEY, ET AL. :
Plaintiffs-Appellants :
vs. : C.A. Case No. 17912
CITY OF MIAMISBURG, ET AL. : T.C. Case No. 98-1648
Defendants-Appellees :
. . . . . . . . . . .
O P I N I O N
Rendered on the 28th day of January , 2000.
. . . . . . . . . . .
This case arises out of an action by a former police officer and his wife
against the city of Miamisburg and several of his superiors with the city for
numerous claims, including a whistleblower claim, defamation, intentional and
negligent infliction of emotional distress, employer intentional tort, assault and
battery, and loss of consortium. Plaintiff-Appellant David A. Stanley. Stanley and
his wife filed the original complaint in this matter on November 8, 1996. Thereafter,
Defendants jointly filed a motion for summary judgment. On October 20, 1997, the
trial court sustained in part and overruled in part Defendants motion. Specifically,
the court sustained the motion as to the whistleblower, common law retaliatory
discharge, defamation, intentional tort and negligent infliction of emotional distress
claims; and overruled the motion as to the intentional infliction of emotional
distress, assault and battery, and Mrs. Stanleys loss of consortium claims. Later,
the trial court clarified its decision in response to cross-motions to reconsider by
also dismissing the intentional infliction of emotional distress claim against
Defendants Baker and Mitchell. This original case was voluntarily dismissed by
Stanley in May of 1998 and refiled a week later.
In the new case, Stanley made all of the same claims he had made in his
previous complaint. In addition, he made two more allegations which were not
mentioned in the first case: (1) Defendants forced him to retire in retaliation, and (2)
Defendants continued to retaliate against him from the date of retirement to the
present. Shortly thereafter, Defendants filed a joint motion to dismiss all claims that
had been dismissed in the October 20, 1997 summary judgment decision and the
January 12, 1998 reconsideration decision. The trial court subsequently dismissed
all previously rejected claims. Stanley appeals from the trial courts decisions
sustaining Defendants motions for summary judgment and reconsideration in the
original case and the motion to dismiss in the present case raising the following
assignments of error:
I. The Trial Court Erred by Sustaining Defendants Motion for Summary
Judgment in Connection with Plaintiffs Whistle Blowers [sic] Claim.
II. The Trial Court Erred by Sustaining Defendant [sic] Motion for Summary
Judgment in Connection with Plaintiffs Claim for Defamation.
III. The Trial Court Erred by Sustaining Defendant [sic] Motion for Summary
Judgment in Connection with Plaintiffs Claims for Intentional Torts Against
the Defendant, City.
IV. The Trial Court Erred by Sustaining Defendants Motion for Reconsideration
in Connection with Defendant, Baker.
V. The Trial Court Erred in Sustaining Defendants Motion to Dismiss.
The pertinent facts of this case are as follows. Stanley was employed by the
city of Miamisburg as a police officer from January of 1989 until September 25,
1996. During his employment with the city, Stanley was involved in two separate
automobile accidents which caused severe injury. The first was an off-duty
accident in October of 1993 in which he injured his hip and pelvis. Following this
accident, Stanley was out of work until March of 1994, when he returned on light
duty status. He ultimately returned to full duty status on July 31, 1995. Then, on
November 14, 1995, Stanley was involved in an on-duty accident that resulted in
injury to his back and re-injury to his hip and pelvis. Thereafter, Stanley was on
leave, first paid and then unpaid, until he took a medical retirement on September
25, 1996.
During his employment with the city of Miamisburg, Stanley claims he
witnessed several criminal abuses within the department and reported these to his
superiors, Defendants Tom Schenck, Chief of Police, Captain Aubrey Baker, and Officer William Mitchell. Additionally, he contends that he reported these abuses to
the City Manager, John Weithofer, and the Assistant City Manager, David
Collinsworth, both also named as Defendants. Stanley confirmed in his deposition
that all reports he made to these individuals were strictly verbal until a letter written
to Collinsworth on August 9, 1996. This was the first time Stanley submitted any
written complaints.
Stanley alleges that in response to these verbal reports made to his
superiors, he received unfair treatment as retaliation. In his original complaint,
Stanley alleged this retaliation included but was not limited to transferring and
reassigning Plaintiff; withholding from Plaintiff benefits to which Plaintiff was
otherwise entitled and reducing the Plaintiff in position. Additionally, in his August
9, 1996 letter to David Collinsworth, Stanley detailed several of these incidents
including: 1) threatened disciplinary action for engaging in extramarital activities
which turned out to be with his wife; 2) threatened disciplinary action and
investigations by the IRS for purchasing a new sports car and a new home; 3)
refusal of benefits following an on-duty accident in 1995 resulting in removal from
community-oriented police assignment; 4) confrontation with Chief Schenck over
opened personal mail which resulted in Schenck striking Stanley with a door; 5)
notification by Chief Schenck and Captain Baker on several occasions that he was
not well liked and his chances for advancement were slim or nonexistent; 6)
discrimination based on his disability including attempts to prevent him from taking
a promotional exam. Further details were outlined in Mrs. Stanleys August 26,
1996 letter to Miamisburg City Council: 1) refusal to honor and interference with
workers compensation benefits; 2) denial of participation in several special projects that Stanley was allegedly more qualified for than those who were chosen; 3)
requiring Stanley to attend court, training and depositions while heavily medicated
on disability leave.
In a separate section of his original complaint, Stanley also maintained that
he was forced by the city to take a medical retirement. However, he alleged the
direct reason for the medical retirement was the citys failure to accommodate his
disability. In his deposition, Stanley alluded that the failure to accommodate his
disability by only allowing his return to street patrol was a retaliatory act.
Nevertheless, Stanley did not specifically classify his retirement as a retaliatory act
until his memorandum in response to Defendants motion for summary judgment
and his refiled complaint following the voluntary dismissal.
Stanley has also been involved in several other proceedings regarding his
injuries in which he was required to testify as to his disability status. In his lawsuit
against his insurance company resulting from the October 1993 accident, he
testified that he was not capable of performing the basic duties of a police officer.
Further, in his testimony before the Police and Firemans Pension Fund, he stated
that he would not be able to resume career as a police officer in any capacity.
Moreover, several doctors testified that Stanley injuries prevented him from
performing the duties of a police officer.
I
In Stanleys first assignment of error, he alleges that the trial court erred in
granting summary judgment on his whistleblower claim. In this regard, the trial
court found that none of the claimed acts of retaliation occurred within the 180-day statutory period, and judicial estoppel prevented Stanley from claiming his
discharge was retaliatory. Additionally, Defendants argued and the trial court briefly
mentioned that Stanley submitted no written reports regarding the whistleblowing
activities until after the alleged acts of retaliation.
According to Civ. R. 56, a trial court should grant summary judgment only
when the following tripartite test has been satisfied: (1) there is no genuine issue as
to any material fact; (2) the moving party is entitled to judgment as a matter of law;
and (3) 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, who
is entitled to have the evidence construed most strongly in his favor. Harless v.
Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66.
The moving party has the burden to establish that there is no genuine issue
as to any material fact. Id. This burden can only be met by identifying specific facts
in the record which indicate the absence of genuine issues of material fact.
Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. By establishing that the
non-moving partys case lacks the necessary evidence to support its claims, the
moving party has successfully discharged its burden. Id. at 289-90.
Once this burden has been met, the non-moving party then has a reciprocal
burden as outlined in Civ. R. 56(E), which provides the adverse party may not rest
upon the mere allegations or denials of [the partys] pleadings, but must set forth
specific facts showing that there is a genuine issue for trial. See id. at 293. Civ. R.
56(E) provides if the non-moving party does not respond or outline specific facts to
demonstrate a genuine issue of material fact, then summary judgment is proper.
Id. Statute of Limitations
If an employee wishes to bring a civil action against his employer under the
whistleblower statute, he must do so within 180 days of the retaliatory action. R.C.
4113.52(D). In the present case, Stanley filed suit on November 8, 1996.
Therefore, the retaliatory actions complained of must have occurred on or after May
12, 1996. Stanley alleged many acts of retaliation that occurred throughout his
employment with the city, but only argues that three occurred within the 180-day
statutory period. Those three acts include interference with workers compensation
benefits, failure of the city to investigate his complaints, and his forced retirement.
However, Stanley did not assert to the trial court during consideration of the
summary judgment motion the former two acts. At that time, he only maintained
the retaliatory discharge occurred within the 180-day period. Stanley first
mentioned the prior two acts occurred within the statutory period in his motion for
reconsideration filed November 28, 1997.
Raising an argument in a motion for reconsideration does not necessarily
preserve that argument for purposes of appeal. See Franks v. The Lima News
(1996), 109 Ohio App.3d 408, 411. The reason is that a motion for reconsideration
is a nullity when filed in response to a final judgment. Id. Although the summary
judgment decision in this case was not a final judgment when issued, it became a
final judgment for purposes of appeal when certified under Civ. R. 54(B).
Whitaker-Merrell Co. v. Geupel Construction Co., Inc. (1972), 29 Ohio St.2d
184, 187. Further, as to the whistleblower claim raised by Stanley, the summary
judgment decision was a final judgment because it completely dismissed that claim.
Because the issues were not properly raised in the trial court, this court will not Stanley did contend in response to Defendants motion for summary
judgment that his forced retirement was retaliatory and occurred within the
statutory period. Although his actual retirement clearly occurred within the statutory
period, it is not clear that the circumstances forcing him to retire did. Stanley
maintains that he was forced to retire because he was only permitted to return to
work on street patrol duty, instead of returning to the COPS program which was
primarily sedentary work. He claims Chief Schenck informed him of this on
January 9, 1996, outside the statute of limitations period. Knowing that he was
incapable of performing street duty, he felt his only option was a medical
retirement.
Whether the trigger date for the statute of limitations is the date he was
informed that he must return to street duty or the actual date of his retirement is a
difficult question that need not be addressed today. As evidenced below, this issue
becomes moot when addressing further aspects of Stanleys whistleblower claim.
Judicial Estoppel
Defendants argued, and the trial court agreed, that judicial estoppel
prevented Stanley from raising a retaliatory discharge claim. In this regard, the trial
court held that Stanley had on many different occasions claimed his retirement
resulted from an inability to perform his job due to his disability. The doctrine of
judicial estoppel prevents a litigant who has successfully taken a position in one
action from taking a contradictory position in a subsequent action. Scioto Mem.
Hosp. Assn., Inc. v. Price Waterhouse (1996), 74 Ohio St.3d 474, 481. This
consider the argument that interference with workers compensation and failure to
investigate complaints occurred within the statutory period. doctrine applies to judicial as well as quasi-judicial proceedings such as Social
Security and pension board. See DeGuiseppe v. Village of Bellwood (1995), 68
F.3d 187, 191.
Defendants cite several federal cases which are analogous to the present
case. In Wilson v. Chrysler Motors Corp., a district court found judicial estoppel
prevented a former employee from claiming retaliatory discharge after receiving
Social Security disability benefits as well as pension benefits. (June 13, 1997),
N.D. Ill. No. 95 C 50336, unreported. After being released by her doctor to return to
work following a medical leave of absence, Wilson claims Chrysler did not permit
her to return to work because their doctors found she was not capable. Id. at 4.
Subsequently, Wilson applied for and was awarded SSA disability benefits,
although she never admitted that she was disabled. Id. at 5. Later, she also
applied for and received a disability pension from Chrysler. Id. at 6. The court
found that applying for and accepting disability benefits constituted a claim that she
was disabled, regardless of her verbal suggestions to the contrary. Id. at 10.
Further, Wilsons self-preservation argument that Chrysler gave her no choice but
to apply for these benefits was also rejected by the court. Id. at 12. Consequently,
the court held that judicial estoppel prevented Wilson from claiming she was
constructively discharged in retaliation. Id.
In another case, a former police officer claimed he was bullied into applying
for a disability pension in retaliation for not supporting the current police chief.
DeGuiseppe, supra, at 191. As in the present case, DeGuiseppe requested a light
duty assignment due to his disability and claims he was refused after several
doctors reported he should not perform the duties of a police officer. Id. at 190. Subsequently, DeGuiseppe filed for and received a disability pension wherein he
stated that he was disabled and submitted only the reports of the two physicians
who found that he was totally disabled (as opposed to his own physician who
stated that he could return to light duty). Id. at 191. The court found that by
applying for and accepting the disability benefits, DeGuiseppe ended his police
career of his own volition. Id. Further, in response to his argument that he had
really wanted light duty instead of a disability pension, the court held that the
pension board had no authority to make such a determination. Id. Therefore,
judicial estoppel prevented him from later claiming that he was forced to take
retirement in retaliation. Id.
Similarly, in the present case, Stanley represented in at least two prior
proceedings that his disability prevented him from performing the duties of a police
officer. First, in his lawsuit against his insurance company resulting from the
October 1993 accident, he testified that he was not capable of performing the
basic duties of a police officer. Then in his testimony before the Police and
Firemans Pension Fund, he stated that he would not be able to resume career as
a police officer in any capacity. There is no genuine issue of material fact that
Stanley made these statements. As stated in DeGuiseppe, Stanley ended his
career as a police officer on his own volition by making these statements for the
purpose of obtaining funds based on his disability. The law prevents him from now
saying that the city of Miamisburg or Chief Schenck constructively discharged him
by forcing him to retire in retaliation for whistleblowing. Therefore, judicial
estoppel prevents Stanley as a matter of law from claiming his retirement was a
retaliatory act under R.C. 4113.52. Written Report Requirement
As a final note, Stanleys whistleblower claim also must fail because he
neglected to satisfy the mandatory requirements of Ohios Whistleblower statute.
In this regard, R.C. 4113.52(A) only protects an employee from retaliatory action if:
(1) the employee provided the required oral notification to the employee's
supervisor or other responsible officer of the employer, (2) the employee filed a
written report with the supervisor or other responsible officer, and (3) the employer
failed to correct the violation or to make a reasonable and good faith effort to
correct the violation. Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134,
142. Implicit in this statute is that the oral and written notification of the reported
activity must be completed prior to any alleged retaliatory action. See Bear v.
Geetronics, Inc. (1992), 83 Ohio App.3d 163, 167, reversed on other grounds
(1993), 66 Ohio St.3d 1424. If an employee does not strictly comply with these
mandatory requirements, he is not protected under R.C. 4113.52, and thus may not
bring a retaliatory discharge claim under the statute. Id.
While there is no dispute that Stanley orally notified several of his superiors
of various alleged criminal abuses and other serious accusations, there is
absolutely no evidence that Stanley put these allegations in writing prior to August
9, 1996. As discussed previously, no actionable retaliation occurred after this date.
The only potential act of retaliation would have been the forced retirement.
However, we have previously determined that Stanley is judicially estopped from
claiming that his retirement was a retaliatory act. Therefore, the written notice
requirement of the statute has not been met in this case. Based on the foregoing, the trial court did not err in sustaining summary
judgment in favor of Defendants on Stanleys whistleblower claim. The only alleged
retaliatory act that potentially occurred within the 180-day statute of limitations was
his retaliatory discharge which Stanley is judicially estopped from claiming. Further,
he did not meet the written notice requirement in the statute which is necessary to
be afforded protection under the whistleblower statute. Accordingly, Stanleys first
assignment of error is overruled.
II
In his second assignment of error, Stanley argues the trial court erred in
sustaining summary judgment on his defamation claim against Defendant Baker.
The alleged defamatory statement made by Baker was that Stanley is a fucking
mental. The trial court held that Stanley did not meet his reciprocal burden under
the summary judgment standard in proving the statement was published to a third
party as is required in a defamation action.
In order for Stanley to establish an action for defamation, he must
demonstrate: (1) that a false statement of fact was made, (2) that the statement
was defamatory, (3) that the statement was published, (4) that the plaintiff suffered
injury as a proximate result of the publication, and (5) that the defendant acted with
the required degree of fault in publishing the statement. Pollock v. Rashid
(1996), 117 Ohio App.3d 361, 368. The trial court focused on the third element,
publication. In order to satisfy this element, a plaintiff must prove that the
statement was published to a third party, and that third party understood the
defamatory nature of the statement. Hahn v. Kotten (1975), 43 Ohio St.2d 237,
243. In his brief, Stanley emphasizes that Baker made the statement to him
(meaning Stanley) in support of his argument against summary judgment.
However, the plaintiff is not a third party. Defendants argued in their summary
judgment motion and again in their appellate brief that based on the pleadings and
Stanleys deposition, Stanley had no personal knowledge of publication to a third
party. The trial court found that this was sufficient to discharge Defendants burden
in their motion for summary judgment. According to Civ. R. 56(E), it was now
Stanleys responsibility to establish, by affidavit or other evidence, that there was a
genuine issue of material fact for trial. Stanley failed to meet this burden. He
mentioned in his deposition several people that he believes heard Baker make the
statement, but did not submit an affidavit from any of them. These bare allegations
without evidence to support them are not sufficient to defeat a motion for summary
judgment. Tubbs v. Cuyahoga Metropolitan Housing Authority (June 10, 1993),
Cuyahoga App. No. 62710, unreported.
We agree with the trial court that Stanley did not meet his reciprocal burden
under Civ.R. 56(E), and Defendants motion for summary judgment on Stanleys
defamation claim against Defendant Baker was properly sustained. Accordingly,
Stanleys second assignment of error is overruled.
III
Stanley argues in his third assignment of error that the trial court erred in
sustaining summary judgment on his employer intentional tort claim against the city
of Miamisburg. In this regard, Stanley contends that R.C. 2744 does not grant
immunity to a political subdivision for claims arising out of an employment
relationship based on R.C. 2744.09(B). The purpose of Chapter 2744 is to provide immunity for political subdivisions
against liability for injury, death, or loss to persons or property allegedly caused by
any act or omission of the political subdivision or an employee***. R.C.
2744.02(A)(1). Stanley does not refute that none of the exceptions to this general
rule found in R.C. 2744.02(B) apply to his case. However, he does contend that
the city has no immunity based on R.C. 2744.09(B), which provides:
This chapter does not apply to, and shall not be construed to apply to,
the following:
(B) Civil actions by an employee, or the collective bargaining
representative of an employee, against his political subdivision
relative to any matter that arises out of the employment relationship
between the employee and the political subdivision[.]
Stanley contends that his employer intentional tort claim necessarily arises out of
the employment relationship between him and the Defendants. We disagree. The
Ohio Supreme Court has conclusively held that employer intentional torts do not
arise out of the employment relationship:
When an employer intentionally harms his employee, that act effects
a complete breach of the employment relationship, and for purposes
of the legal remedy for such an injury, the two parties are not
employer and employee, but intentional tortfeasor and victim. If the
victim brings an intentional tort suit against the tortfeasor, it is a tort
action like any other.
Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 634. Several courts
since Brady have relied on this reasoning in intentional tort claims brought against
a political subdivision employer in the context of R.C. 2744, et seq. See Ellithorp
v. Barberton City School Dist. Bd. of Educ. (July 9, 1997), Summit App. No.
18029, unreported; Abdalla v. Olexia (Oct. 9, 1999), Jefferson App. No. 97-JE-43,
unreported; Nielsen- Mayer v. Cuyahoga Metropolitan Housing Authority (Sept.
2, 1999), Cuyahoga App. No. 75969, unreported. More specifically, since an employer intentional tort does not arise out of the employment relationship, these
courts have held that R.C. 2744.09(B) does not prevent the application of Chapter
2744 immunity to these claims. Ellithorp, supra; Nielsen-Mayer, supra.
Consequently, a political subdivision is immune from employer intentional tort
claims. Id. Therefore, the trial court did not err in sustaining summary judgment on
Stanleys employer intentional tort claim against the city of Miamisburg, and thus,
his third assignment of error is overruled.
IV
In his fourth assignment of error, Stanley contends the trial court erred in
sustaining Defendant Bakers motion for reconsideration of the intentional infliction
of emotional distress claim. In its original summary judgment decision, the trial
court overruled the motion as to the intentional infliction of emotional distress as it
pertained to the individual Defendants. In their motion for reconsideration and
clarification, Defendants pointed out that Stanley only responded to this claim with
evidence that Defendant Schencks actions had caused him emotional distress, not
mentioning any actions of the other Defendants. The trial court found that Stanley
did not meet his reciprocal burden under Civ. R. 56(E) on this claim as to
Defendants Baker and Mitchell, and therefore, dismissed the intentional infliction of
emotional distress claim against them.
Stanley argues in his appellate brief that he did in fact provide ample
evidence to the trial court of Bakers outrageous activity in his deposition. He
mentions specifically that Baker referred to him as a fucking gimp and continually
referred to Stanley and his disability in a derogatory manner. However, Stanley did not raise these arguments in his response to Defendants motion for summary
judgment.
In order to establish a claim for intentional infliction of emotional distress, a
plaintiff must prove the following four elements:
(1) that the actor either intended to cause emotional distress or knew
or should have known that actions taken would result in serious
emotional distress to the plaintiff; (2) that the actors conduct was so
extreme and outrageous as to go beyond all possible bounds of
decency, Restatement of Torts 2d (1965) 73, Section 46, comment d;
(3) that the actors actions were the proximate cause of plaintiffs
psychic injury; and (4) that the mental anguish suffered by plaintiff is
serious and of a nature that no reasonable man could be expected to
endure it, Restatement of Torts 2d 77, Section 46, comment j.
Wigfall v. Soc. Natl. Bank (1995), 107 Ohio App.3d 667, 675-76 (citations
omitted). With respect to the concept of extreme and outrageous, the Supreme
Court has adopted the definition found in the Restatement:
Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community. Generally, the case is one
in which the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead
him to exclaim, Outrageous!
The liability clearly does not extend to mere insults, indignities,
threats, annoyances, petty oppressions or other trivialities. The rough
edges of our society are still in need of a good deal of filing down, and
in the meantime plaintiffs must necessarily be expected and required
to be hardened to a certain amount of rough language, and to
occasional acts that are definitely inconsiderate and unkind. There is
no occasion for the law to intervene in every case where someones
feelings are hurt. There must still be freedom to express an
unflattering opinion, and some safety valve must be left through which
irascible tempers may blow off relatively harmless steam.
Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 375 (emphasis added)
(citations omitted). Whether the conduct alleged is sufficient to make out a prima
facie case of intentional infliction of emotional distress is a matter of law to be determined by the court. Pollock v. Rashid (1996), 117 Ohio App.3d 361, 370,
citing Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 375.
In their motion for summary judgment, Defendants compared all of the
actions alleged by Stanley in his deposition with numerous cases finding the same
types of actions did not constitute outrageous activity. See e.g. Breitenstein v.
City of Moraine (Nov. 5, 1992), Montgomery App. No. 13375, unreported (finding
no infliction of emotional distress by City Manager who threatened employee and
used foul language); Stramkowski v. Fairview Medical Center & Parking Co.
(Feb. 18, 1993), Cuyahoga App. No. 64152, unreported (finding no infliction of
emotional distress by employer accused of wrongfully firing and falsely accusing
employee); Webb v. Ohio Cas. Ins. Co. (Apr. 16, 1990), Butler App. No. CA
89-07-109, unreported (finding legitimate criticism of employee work performance
did not constitute infliction of emotional distress). By presenting evidence that none
of Stanleys allegations were sufficient to make out a prima facie case, Defendants
successfully discharged their burden under Civ. R. 56(C).
Since Defendants had met their burden, Stanley now had the responsibility
to rebut Defendants position and demonstrate there was a genuine issue of
material fact for trial. Civ. R. 56(E); Dresher v. Burt (1996), 75 Ohio St.3d 280,
293. Stanley responded to the motion by presenting evidence of only Schencks
activities which he felt were sufficiently outrageous to support his claim. He made
no mention of activities of the other Defendants. By not making an attempt to
respond to the issues raised in the motion for summary judgment, Stanley did not
meet his reciprocal burden as to Defendants Baker and Mitchell (claim against Mitchell was not raised on appeal). Maust v. Meyers Products, Inc. (1989), 64
Ohio App.3d 310, 314.
Stanley now attempts on appeal to put forth evidence supporting his claim
for intentional infliction of emotional distress against Defendant Baker. However,
since the issue was not raised in the trial court, it is considered waived and he
cannot raise it for the first time on appeal. Maust, supra (citations omitted); Stores
Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, 43.
Accordingly, the trial court did not err in sustaining Defendants motion for
reconsideration on the intentional infliction of emotional distress claim and thus,
Stanleys fourth assignment of error is overruled.
V
In his fifth assignment of error, Stanley contends the trial court erred in
granting Defendants motion to dismiss. As discussed previously, Defendants filed
a motion to dismiss following Stanleys Civ. R. 41(A) dismissal and refiling of this
case. They relied on the evidence presented in support of their motion for
summary judgment and asked the court to dismiss all claims previously rejected in
the original case. Subsequently, the trial court granted Defendants motion to
dismiss all claims which had been dismissed in the summary judgment decision of
October 20, 1997 and the reconsideration decision of January 12, 1998.
In his brief, Stanley claims there were two errors in granting this motion to
dismiss. First, he contends the court did not consider the additional allegations
made in his complaint that (1) Defendants forced him to retire, and (2) Defendants
continued to retaliate against him from the date of his retirement until the present.
Second, Stanley argues that the court erred in considering the evidence submitted The first part of Stanleys initial argument was resolved in our discussion of
his first assignment of error. Both judicial estoppel and failure to comply with the
whistleblower statute substantiate the courts decision to dismiss this claim,
regardless of the supplemental allegation that his forced retirement was retaliatory
in his refiled complaint. Further, Stanleys bare allegation that Defendants have
continued to retaliate since his retirement is not protected by the statute.
Specifically, R.C. 4113.52(B) states no employer shall take any disciplinary or
retaliatory action against an employee***. (Emphasis added). Additionally, the list
of example retaliatory acts found in the statute constitute acts that can only be
accomplished by employer to employee, i.e. discharge, suspension, reduction in
pay, transferring, denying promotion. R.C. 4113.52(B). Following his retirement,
Stanley was no longer an employee who could be subject to such actions.
Therefore, this additional allegation does not create an issue of fact for Stanleys
whistleblower claim.
In his second argument, Stanley fails to acknowledge that the motion filed by
Defendants was a motion to dismiss or in the alternative a motion for summary
judgment. A trial court is not required to give notice to the parties of its conversion
to a motion for summary judgment if the motion is so styled. Walker v.
Associated Estates Realty Corp. (Sept. 24, 1998), Cuyahoga App. No. 74271,
unreported, p.2. Further, no notice is required if the opposing party acknowledges
the dual nature of the motion. Applegate v. Fund for Constitutional Govt.
with Defendants previously filed summary judgment motion as there was no notice
given that the motion to dismiss was being converted to a Civ. R. 56 motion for
summary judgment. (1990), 70 Ohio App.3d 813, 816. Although Stanley failed to acknowledge it on
appeal, he clearly recognized that Defendants motion was in the alternative a
motion for summary judgment in his responsive memorandum. First, he repeated
the exact caption Motion to Dismiss or in the alternative for Summary Judgment in
his opening sentence. Second, he requested an additional amount of time for
discovery pursuant to Civ. R. 56(F), a rule which applies only to motions for
summary judgment. And finally, he attached to his response a copy of his
response to the previous motion for summary judgment, and an affidavit, stating
they were submitted in defense of Defendants alternative request for summary
judgment.
Moreover, it is not relevant that the trial court styled its decision as granting
Defendants motion to dismiss. When a trial court refers to evidentiary materials
outside the pleadings in its decision, it indicates that a Civ. R. 56 motion for
summary judgment was granted instead of a Civ. R. 12(B)(6) motion to dismiss.
Nozik v. Mentor Lagoons Yacht Club (1996), 112 Ohio App.3d 321, 324, citing
State ex rel. Baran v. Fuerst (1990), 55 Ohio St.3d 94, 97. In its decision, the trial
court referred to the previously filed summary judgment motion, as well as the
exhibits and deposition testimony considered in deciding that motion.
Since both parties had notice of the dual nature of the motion, and the trial
court in effect granted the alternative summary judgment motion, the trial court did
not err in its decision. Accordingly, Stanleys fifth assignment of error is hereby
overruled.
Judgment affirmed.
. . . . . . . . . . . WOLFF, J., and FAIN, J., concur.
Copies mailed to:
Richard B. Reiling
Gary E. Becker
Brian J. OConnell
Hon. Michael Hall

Franklin A. Zuern
1215 N. Eighth St.
Miamisburg, Ohio
45342