Underwood v. Cuyahoga Community College ( 2023 )

[Cite as Underwood v. Cuyahoga Community College, 2023-Ohio-4180.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY
MICHAEL UNDERWOOD, CASE NO. 2023-G-0012
Plaintiff-Appellant,
Civil Appeal from the
- vs - Court of Common Pleas
CUYAHOGA COMMUNITY
COLLEGE, Trial Court No. 2021 M 000227
Defendant-Appellee.
OPINION
Decided: November 20, 2023
Judgment: Affirmed
Donald Gallick, 190 North Union Street, Suite 102, Akron, OH 44304 (For Plaintiff-
Appellant).
John N. Childs, Victoria L. Ferrise, and Monica B. Andress, Brennan, Manna & Diamond,
LLC, 75 East Market Street, Akron, OH 44308 (For Defendant-Appellee).
MARY JANE TRAPP, J.
{¶1} Appellant, Michael Underwood (“Mr. Underwood”), appeals from the
judgment of the Geauga County Court of Common Pleas that awarded summary
judgment in favor of appellee, Cuyahoga Community College (“Tri-C”), on his claims of
wrongful termination, breach of contract, and compensation for unused benefits.
{¶2} Mr. Underwood raises three assignments of error on appeal, contending the
trial court erred in awarding summary judgment in favor of Tri-C because (1) he asserted
a valid claim of wrongful termination in violation of public policy pursuant to Greeley v.
Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d 981 (1990); (2)
Tri-C breached his employment contract for an improper motive; thus, the trial court erred
in finding in favor of Tri-C on his Greeley claim; and (3) it failed to consider his “contra”
affidavit and depositions filed in opposition to summary judgment when it decided he
received full compensation for unused vacation and sick time.
{¶3} After a careful review of the record and pertinent law, we find Mr.
Underwood’s assignments of error to be without merit.
{¶4} Firstly, a review of the trial court’s judgment entry reveals it erroneously
found Mr. Underwood was an employee-at-will. The court seemingly misread the letter
of appointment (“LOA”) since, per its terms, only the employee could terminate the
appointment at “any time, for any reason” with written notice fourteen days in advance.
Tri-C, however, could only terminate the appointment “at any time as part of a disciplinary
action, reduction in force, or otherwise in accordance with College policies, procedures,
or other rules or standard practices.” (Emphasis added.) Further, the LOA was for a fixed
term (one-year) of employment. Because Mr. Underwood was not an at-will employee,
he cannot bring a common law claim of wrongful termination in violation of public policy.
Thus, we affirm the trial court’s judgment awarding Tri-C summary judgment on this claim
because it reached the right conclusion albeit for erroneous reasons.
{¶5} Secondly, we construe Mr. Underwood’s second assignment of error to
mean that if we find he was not an employee-at-will (and affirm the lack of merit of his
Greeley claim), we should remand for the trial court to consider the evidence he submitted
on summary judgment on his breach of contract claim alleging he was terminated for an
improper motive. Similarly, in his third assignment of error, he contends the trial court
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failed to consider the evidence he submitted proving he was not compensated for unused
benefits. A review of the trial court’s lengthy judgment entry, however, reveals the court
reviewed the evidence he submitted and found he failed to submit any evidence in rebuttal
that raised genuine issues of material fact that he was not terminated for cause and that
he was not paid all compensation due on his accumulated benefits. Quite simply, as the
nonmoving party in a summary judgment exercise, Mr. Underwood failed to meet his
reciprocal burden to submit evidentiary quality material supporting his position.
{¶6} Thus, the judgment of the Geauga County Court of Common Pleas is
affirmed.
Substantive and Procedural History
{¶7} In April 2021, Mr. Underwood filed a complaint in the Geauga County Court
of Common Pleas, alleging (1) Tri-C breached his employment contract by acting in bad
faith and investigating him for a legal, ethical personal loan from a Tri-C contractor in
2012; (2) wrongful termination in violation of public policy because he reported potential
illegal activity; and (3) compensation for unpaid benefits, i.e., unused sick and vacation
time.
Tri-C’s Motion for Summary Judgment
{¶8} Relevant to this appeal, Tri-C filed an “amended motion for summary
judgment to include exhibits” in January 2023. Tri-C argued Mr. Underwood (1) could not
maintain a breach of contract claim because he was an employee-at-will; (2) failed to
allege the clarity and jeopardy elements of his wrongful termination Greeley claim; and
(3) received his full compensation, including vacation and sick leave benefits, in his last
paycheck.
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Employee-at-will
{¶9} Firstly, Tri-C argued Mr. Underwood was an employee-at-will because
either party could terminate Mr. Underwood’s employment “for any reason” pursuant to
the LOA.
{¶10} Tri-C alleged that Mr. Underwood was initially hired around January 2004
as manager of plant operations pursuant to an annual LOA. From 2004 until 2019, Mr.
Underwood’s employment was renewed by an annual LOA. In 2020, Mr. Underwood’s
employment was terminated for cause pursuant to the LOA.
{¶11} Attached to Tri-C’s motion for summary judgment was an affidavit from a
Tri-C patrolman and former Tri-C detective, Jamie Bailey (“Ptlm. Bailey”), with an attached
copy of the final LOA. A review of the LOA reveals it provided the term of employment
(July 1, 2019, through June 30, 2020), Mr. Underwood’s compensation, and his job
requirements, i.e., he “shall diligently and satisfactorily perform the duties of manager of
facilities during this time period, as well as such duties that may be assigned by the
College from time-to-time”; and he “is subject to the policies, procedures, and other
applicable rules of the College, as amended from time-to-time.”
{¶12} Regarding termination of employment, the LOA provided that the “College
may terminate this assignment at any time as part of a disciplinary action, reduction in
force, or otherwise in accordance with College policies, procedures, or other rules or
standard practices. Employee may terminate this assignment, for any reason or no
reason at all, by providing not less than fourteen days advance written notice to
employee’s immediate supervisor.”
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{¶13} Further, “[n]either the College nor the Employee shall be obligated to renew
this assignment or enter into any other assignment after this date. Employee understands
and acknowledges that there is no expectation of employment after assignment ends.”
Mr. Underwood’s Paid Administrative Leave, Investigation, and Termination
{¶14} Tri-C further alleged Mr. Underwood was terminated for cause “pursuant to
the LOA” due to violations of college policy and procedure.
{¶15} Attached to Tri-C’s motion for summary judgment was an affidavit from Ami
Hollis (“Ms. Hollis”), the executive director of Tri-C’s human resources information system
and total rewards program. Ms. Hollis averred in her affidavit that on April 1, 2020, Tri-C
issued a paid administrative leave notice to Mr. Underwood, advising him that Tri-C was
initiating an investigation of alleged violations of college policy and procedures. The
letter, attached to Ms. Hollis’ affidavit, further provided Mr. Underwood would remain on
paid status, his benefit accruals would not be affected, and his placement on paid
administrative leave was “not a disciplinary measure.” However, “[b]ased on the outcome
of that investigation, disciplinary measures may be imposed at some future date and may
be applied retroactively to this paid administrative leave.” The letter also informed Mr.
Underwood he should “refrain from accessing your Tri-C emails or other desktop
computer activities” and refrain from contacting other Tri-C employees or contractors
regarding the investigation.
{¶16} The investigation was prompted by one of Mr. Underwood’s employees,
Russell Paintiff (“Mr. Paintiff”), a plant operations specialist, who filed a whistleblower
complaint against Mr. Underwood. In his letter (attached to Ptlm. Bailey’s affidavit), Mr.
Paintiff detailed several instances of “inappropriate and fraudulent behavior,” including a
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$50,000 personal loan to Mr. Underwood and his wife and the installation of kitchen
cabinetry in Mr. Underwood’s private residence in the U.S. Virgin Islands.
{¶17} Ptlm. Bailey described Tri-C’s investigation in his affidavit. The investigation
confirmed Mr. Underwood had been involved in several personal deals with various third-
party Tri-C vendors, including a contractor who installed kitchen cabinetry in Mr.
Underwood’s U.S. Virgin Island vacation home and a $50,000 personal loan from a
painting contractor, Keith Donaldson (“Mr. Donaldson”) to Mr. Underwood and his wife’s
real estate title company for the Underwoods’ purchase of a property in Chagrin Falls,
Ohio.
{¶18} In Mr. Donaldson’s affidavit, he averred that his company started providing
services for Tri-C in 2009 and that Mr. Underwood was the primary Tri-C representative
through which he conducted business. Around 2012, he gave Mr. Underwood and his
wife an interest-free personal loan (paid to the title company). During the two years Mr.
Underwood was repaying the loan, his company continued to provide services for Tri-C.
At the end of the repayment period, Mr. Underwood ceased contracting with Mr.
Donaldson’s company on behalf of Tri-C. Attached to Mr. Donaldson’s affidavit were a
fiduciary deed, a mortgage lien on behalf of Mr. Donaldson and his wife, a chart of the
payments Mr. Underwood made to Mr. Donaldson, copies of the checks from Mr.
Underwood and Mr. Donaldson’s corresponding deposits, and the satisfaction of Mr.
Underwood’s mortgage.
{¶19} In October 2020, Ptlm. Bailey referred the matter to the Cuyahoga County
Prosecutor’s Office for review and consideration. In November 2020, an assistant
prosecutor from that office advised him by email that Mr. Underwood’s actions constituted
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misdemeanors, including soliciting improper compensation pursuant to R.C. 2921.43 and
violating ethics laws pursuant to R.C. 102.03(D)-(E). In December 2020, Tri-C referred
the matter to the City of Cleveland Prosecutor’s Office for review and consideration. In
March 2021, an assistant prosecutor from that office advised Ptlm. Bailey via email that
the office was declining to issue criminal charges since the statute of limitations for those
crimes had run. The emails were included in the incident report conducted by Tri-C and
attached to Ptlm. Bailey’s affidavit.
{¶20} Ms. Hollis attested that at the end of the investigation, on June 12, 2020,
the office of Human Resources sent Mr. Underwood a notice of termination. The notice,
which was also attached to Ms. Hollis’ affidavit, informed Mr. Underwood that he was
terminated because he “violated the Ohio Ethics Laws and the College’s Employee Code
of Conduct Policy 3354:1-43.02” by accepting a loan from a vendor of the college. The
notice further stated there was evidence that he solicited a former contractor to do work
for him personally, which was in “direct violation of the Ohio Ethics Laws and the College’s
Employee Code of Conduct Policy.”
Compensation for Unused Benefits
{¶21} Secondly, Tri-C argued that Mr. Underwood received full compensation for
his unused benefits in his last paycheck.
{¶22} Ms. Hollis further averred that while the investigation was pending and Mr.
Underwood was on paid leave, he received a notice from Tri-C informing him of the 2020
Voluntary Separation Program (“VSP”). A review of the VSP notice and VSP plan
documents attached to Ms. Hollis’ affidavit reveals employees terminated for cause
between June 1, 2020, and July 15, 2020, were not eligible for the program. “Cause” was
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defined as “a material violation by the Eligible Employee of any law, rule, regulation,
constitutional provision, policy, procedure, or by-law of the College, or local, state, or
federal law, which reflects adversely upon the College.”
{¶23} Ms. Hollis further averred that even though Mr. Underwood was not eligible
for the VSP program, he had been fully compensated for his unused vacation and sick
leave in his final paycheck. Attached to her affidavit were several documents evidencing
the payout, including Tri-C’s payout policies for vacation and sick time and a check detail
inquiry of Mr. Underwood’s final paycheck. These reflected Mr. Underwood was eligible
to receive up to 30 days of vacation and sick time payout upon his termination. According
to his final paycheck, Mr. Underwood received compensation for 225 hours of vacation
time ($11,195.54) and 225 hours of sick leave ($11,195.64).
Mr. Underwood’s Greeley Claim
{¶24} Thirdly, Tri-C argued Mr. Underwood failed to establish a common law
employee-at-will wrongful termination claim pursuant to Greeley. Tri-C argued Mr.
Underwood failed to establish it violated a public policy by terminating Mr. Underwood
(the clarity element) and that the purpose of the proposed public policy would be
compromised if the court did not allow Mr. Underwood to proceed with his claim (the
jeopardy element).
{¶25} In 2017, Mr. Underwood reported to campus police that his colleague,
Russell Paintiff (“Mr. Paintiff”), was stealing from Tri-C’s scrap metal recycling program.
{¶26} Ptlm. Baily averred that he was advised by Lieutenant Ronald Wynne (“Lt.
Wynne”) in the fall of 2018 to follow up with Mr. Underwood regarding his verbal allegation
that Mr. Paintiff was stealing from the scrap metal recycling program. Mr. Underwood
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never scheduled a meeting to formally discuss his allegations against Mr. Paintiff, nor did
he follow the appropriate protocols to open a formal investigation by campus police, as
instructed by Lt. Wynne. On October 2, 2018, Ptlm. Bailey received an email (attached
to his affidavit) from Mr. Underwood stating: “It appears that everything is in order and all
scrap is being accounted for.” No further action was taken by campus police.
Mr. Underwood’s Brief in Opposition To Summary Judgment
{¶27} Mr. Underwood filed a brief in opposition. He also filed his deposition
transcript and those of David November (“Mr. November”), a sustainability manager for
Tri-C, as well as Tri-C employees under his supervision: Benjamin Adams (“Mr. Adams”),
a maintenance mechanic; George Lohri (“Mr. Lohri”), a mechanic and electrician; and Mr.
Paintiff, who was in charge of plant operations for Tri-C.
{¶28} Mr. Underwood argued that he established a valid Greeley claim because
Tri-C has a “public interest to investigate potential theft of taxpayer property and funds”
and “financial mismanagement.” His allegation that Mr. Paintiff was thieving from the
scrap metal recycling program was a good-faith complaint that Tri-C failed to investigate.
As evidence, he cited the depositions of Mr. Adams, Mr. Lohri, and Mr. November, in
which all three stated no one from Tri-C asked them any questions of possible crimes and
they were unaware of any problems with the recycling program. As further evidence of
theft, Mr. Underwood pointed to the deposition of Mr. Adams, in which he stated he would
often take scrap metal for recycling but was never required to write down any dollar
amounts or record any figures. Similarly, Mr. Lohri testified Mr. Paintiff would decide
which scrap yards to use.
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{¶29} Mr. Underwood further argued that evidence of theft from the scrap metal
recycling program exists, but Tri-C refused to acknowledge it. As evidence, Mr.
Underwood gathered all the records he had. He was unsure if he obtained the records
from discovery or if he already had them. He added up the scrap metal receipts and
compared them to the copies of the checks received by Tri-C, finding an approximate
$10,000 discrepancy.
{¶30} Mr. Underwood claims that instead of investigating his complaint against
Mr. Paintiff, Tri-C terminated him. Further, no ethics violation claim was levied against
Mr. Paintiff, even though he admitted in his deposition that he performed some free
personal work on the home furnace of Tri-C’s police chief.
{¶31} Mr. Underwood also argued he was offered a severance package for
“retirement,” which included $59,710.12, two years of tuition remission, and 82% of the
premium for six months of COBRA payments (the VSP program). The fact that he was
ineligible for the VSP program was further evidence of malice and/or retaliation for his
repeated questions regarding possible theft and missing records from the scrap recycling
program.
{¶32} Attached to Mr. Underwood’s deposition was a chart, which he presumably
made himself, listing various scrap metal recyclers with dates, receipts of recycled scrap,
and whether a check was deposited. He also attached the VSP notice and the
administrative leave notice. Attached to Mr. November’s deposition were receipts from
one scrap metal recycler, A&B Metal Recycling. Attached to Mr. Paintiff’s deposition were
receipts and checks from various scrap metal recyclers and a portion of Tri-C’s
investigation of Mr. Underwood.
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The Trial Court’s Ruling in Favor of Tri-C
{¶33} The trial court reviewed that Mr. Underwood was, in essence, claiming he
was terminated because he complained his subordinate, Mr. Paintiff, was stealing scrap.
{¶34} The court reviewed the testimony from Mr. Lohri and Mr. Adams, noting it
revealed Mr. Paintiff started Tri-C’s scrap recycling program. Scrap was taken on an
irregular basis whenever it was sufficiently accumulated. A check would be issued by the
scrap yard based on the weight of the recycled items. The checks were not for significant
sums of money and there was never any concern about where the checks were going.
{¶35} The court also reviewed the testimony of Mr. November, who reports
quarterly on diversion rates from landfills and collects the weights of Tri-C’s recycled
scrap metal from the plant managers. He has nothing to do with the checks received
from the recycling companies. At one point, Mr. Underwood told him he was unsure why
some tickets were missing. Not long after his conversation with Mr. Underwood, the
tickets were found. Mr. November stated, “it wasn’t something that seemed like a big
deal to me.”
{¶36} The court’s review of Mr. Paintiff’s testimony revealed he gave all the tickets
to Mr. Underwood, who was in charge of responding to Mr. November’s quarterly inquiry.
Mr. Paintiff testified Mr. Underwood “didn’t care about nothing just as long as he didn’t
hear about it.” He described Mr. Underwood as a “bad boss” and “very dishonest.”
{¶37} Beginning in 2009 or 2010, Mr. Paintiff started complaining about Mr.
Underwood to Blair Bosworth (“Mr. Bosworth”), Mr. Underwood’s boss; Judi McMullen,
the vice president of human resources; and David Kuntz, executive vice president. He
eventually spoke to Tri-C’s general counsel and the Tri-C police. On March 27, 2020, he
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filed a written “Whistleblower Complaint.” Mr. Paintiff did not know Mr. Underwood was
questioning or accusing him of stealing until around the time Mr. Underwood was
terminated.
{¶38} Mr. Underwood’s testimony revealed he was hired pursuant to a series of
annual renewable LOAs, and he had no document providing him with employment
beyond June 30, 2020. Mr. Underwood suspected theft when he received emails from
Mr. November asking plant managers for receipts from scrap recycling. Mr. Underwood
did not investigate but did ask Mr. Paintiff about a recycler’s check. There were several
times Mr. Underwood did not receive a check from Mr. Paintiff. When Mr. Underwood
verbally reported this to the Tri-C police, he was directed to write a report and submit it to
Ptlm. Bailey. Instead, he sent an email to Ptlm. Bailey, stating that everything was in
order and all the scrap was being accounted for. He never put together the report, he
withdrew his allegations, and he made no further ones.
{¶39} When Mr. Underwood reported his complaints to Mr. Bosworth, he felt Mr.
Bosworth was “dismissive, condescending, and didn’t feel Mr. Underwood was doing a
good job.” Mr. Underwood believed Mr. Paintiff’s allegations were meritless, and he was
retaliating against Mr. Underwood.
Breach of Contract Claim
{¶40} On Mr. Underwood’s breach of contract claim, the trial court found either
Tri-C or Mr. Underwood could terminate the employee relationship and Mr. Underwood
was an employee-at-will. The trial court further found the LOA provided that “Tri-C had
the right to terminate Mr. Underwood’s employment for ‘any reason or no reason at all’ by
providing not less than fourteen days advance written notice.” In addition, Tri-C had the
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right to terminate Mr. Underwood’s employment “any time as part of a disciplinary action,
reduction in force, or otherwise.”
{¶41} The trial court concluded Tri-C met its initial burden, using evidence in the
record to show (1) the employment relationship was at will, (2) it provided more than
fourteen days’ advance written notice of termination, (3) it had the right to terminate the
relationship without notice for disciplinary reasons, and (4) it paid Mr. Underwood all sums
to which he was entitled.
{¶42} The trial court also found that Tri-C met its initial burden establishing Mr.
Underwood was terminated for good cause because (1) its termination of Mr. Underwood
was contractually permissible, (2) it had good cause to terminate Mr. Underwood’s
employment, and (3) it paid Mr. Underwood all sums due in his final paycheck.
{¶43} Further, Mr. Underwood failed to provide rebuttal evidence raising a
genuine issue of material fact.
{¶44} Thus, Tri-C was entitled to summary judgment on Mr. Underwood’s breach
of contract claim.
Wrongful Termination in Violation of Public Policy
{¶45} The trial court found Mr. Underwood failed to establish the first element of
a Greeley claim—a clear public policy (the clarity element). Tri-C showed that while Mr.
Underwood cited various statutes, regulations, and other authorities, he failed to cite a
public policy that protected him. He (1) was an employee who orally reported personal
suspicions of potential illegal activity, (2) withdrew those allegations in 2018, (3) had his
own annual employment contract renewed in 2019, and (4) was terminated in 2020 after
an investigation into his own illegal activities. The court further found Mr. Underwood
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failed to provide rebuttal evidence showing the existence of a clear public policy that
supported a Greeley claim.
{¶46} In addition, the trial court found Mr. Underwood failed to establish the
second element of a Greeley claim—jeopardy. Tri-C met its initial burden by showing Mr.
Underwood cannot satisfy this element because society’s interest is adequately protected
by significant civil, criminal, and administrative remedies for fraud and theft.
{¶47} Thus, the trial court awarded summary judgment in favor of Tri-C on Mr.
Underwood’s claim of wrongful termination in violation of public policy.
Compensation Claim
{¶48} Lastly, the trial court found Mr. Underwood failed to establish he was not
fully compensated for unpaid benefits. Tri-C submitted evidence that showed (1) Mr.
Underwood received full compensation under his agreement with Tri-C for unused
vacation and sick leave in his final paycheck, (2) Mr. Underwood was ineligible for the
VSP program, and (3) Tri-C had paid Mr. Underwood all benefits he was due. Mr.
Underwood failed to offer any evidence in rebuttal to raise a genuine issue of material
fact that he was not paid all benefits due.
{¶49} In conclusion, the trial court granted summary judgment in favor of Tri-C on
Mr. Underwood’s claims.
{¶50} Mr. Underwood raises three assignments of error on appeal:
{¶51} “[1.] The trial court erred by granting summary judgment on the wrongful
termination claim because the ruling ignored the public policy interest in protecting
employees who report theft of taxpayer money; stealing from the taxpayers is against the
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public policy of the state of Ohio, even if reported by a citizen instead of a law enforcement
officer.
{¶52} “[2.] The trial court erred in granting summary judgment on count II of the
complaint because Tri-C breached Underwood’s employment contract for an improper
motive.
{¶53} “[3.] The trial court erred in granting summary judgment by finding appellant
received ‘full compensation’ for unused vacation and sick time because the final judgment
failed to consider a letter detailing unpaid compensation, failed to consider appellant’s
contra affidavit and failed to consider any of the filed depositions.”
Summary Judgment
{¶54} We review de novo a trial court’s order granting summary judgment. Sabo
v. Zimmerman, 11th Dist. Ashtabula No. 2012-A-0005, 2012-Ohio-4763, ¶ 9. A reviewing
court will apply the same standard a trial court is required to apply, which is to determine
whether any genuine issues of material fact exist and whether the moving party is entitled
to judgment as a matter of law. Id.{¶55} “Since summary judgment denies the party his or her ‘day in court’ it is not
to be viewed lightly as docket control or as a ‘little trial.’ The jurisprudence of summary
judgment standards has placed burdens on both the moving and the nonmoving party.
In Dresher v. Burt[, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996)], the Supreme Court of
Ohio held that the moving party seeking summary judgment bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record before the trial court that demonstrate the absence of a genuine issue of fact on a
material element of the nonmoving party’s claim. The evidence must be in the record or
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the motion cannot succeed. The moving party cannot discharge its initial burden under
Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no
evidence to prove its case but must be able to specifically point to some evidence of the
type listed in Civ.R. 56(C) that affirmatively demonstrates that the nonmoving party has
no evidence to support the nonmoving party’s claims.” Welch v. Ziccarelli, 11th Dist. Lake
No. 2006-L-229, 2007-Ohio-4374, ¶ 40.
{¶56} “If the moving party fails to satisfy its initial burden, the motion for summary
judgment must be denied. If the moving party has satisfied its initial burden, the
nonmoving party has a reciprocal burden outlined in the last sentence of Civ.R. 56(E) to
set forth specific facts showing there is a genuine issue for trial. If the nonmoving party
fails to do so, summary judgment, if appropriate shall be entered against the nonmoving
party based on the principles that have been firmly established in Ohio for quite some
time in Mitseff v. Wheeler (1988), 38 Ohio St.3d 112[, 526 N.E.2d 798].” Ziccarelli at ¶
40.
Greeley Claim
{¶57} In Mr. Underwood’s first assignment of error, he contends the trial court
erred in finding that he failed to identify a clear public policy on his wrongful termination
Greeley claim.
{¶58} We must first address whether the trial court properly determined Mr.
Underwood was an employee-at-will.
{¶59} Under Ohio law, an employment relationship with no fixed duration is
deemed to be at-will employment. Snedigar v. Miami Univ., 10th Dist. Franklin No. 11AP-
8, 2011-Ohio-4365, ¶ 10. The identifying characteristic of an employee-at-will is that
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either the employer or the employee can terminate employment for any reason which is
not contrary to law. Haynes v. Zoological Soc. of Cincinnati, 73 Ohio St.3d 254, 258, 652
N.E.2d 948 (1995).
{¶60} As our review of the LOA reveals, the LOA was for a fixed duration—a
specified one-year term. Mr. Underwood, as an employee, could “terminate for any
reason or no reason at all, by providing not less than fourteen days advance written notice
to the immediate supervisor.” Tri-C, however, could only terminate the appointment “at
any time as part of a disciplinary action, reduction in force, or otherwise in accordance
with College policies, procedures, or other rules or standard practices.” (Emphasis
added.) The trial court erred in finding that pursuant to the LOA, “Tri-C had the right to
terminate Mr. Underwood’s employment for ‘any reason or no reason at all’ by providing
fourteen days of advance written notice.” A plain reading of the LOA reveals no such
provision exists.
{¶61} Thus, per the terms of the LOA, Mr. Underwood was not an employee-at-
will but was hired under a series of non-renewable, fixed duration employment contracts.
These non-renewable, one-year letters of appointment have been found to be contracts.
See Stevenson v. Cuyahoga Cty. Community College, 8th Dist. Cuyahoga No. 81637,
2003-Ohio-2191, ¶ 2 (the appellant had been employed at Tri-C from 1991 until July of
2000 through a series of non-renewable, one-year contracts); Gaetano v. Bd. of Trustees
of Cuyahoga Community College, 8th Dist. Cuyahoga No. 41520, 1980 WL 355092, *1
(June 26, 1980) (the appellee had been employed by Tri-C since 1968 under a series of
one-year contracts).
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{¶62} A Greeley claim only applies to employees at will. As the Greeley court
explained, “[p]ublic policy warrants an exception to the employment-at-will doctrine when
an employee is discharged or disciplined for a reason which is prohibited by statute.” Id.at paragraph one of the syllabus. See also Haynes at 257 (appellant was a member of a
union and not an employee-at-will; thus, she could not bring a Greeley claim).
{¶63} Thus, we affirm the trial court’s award of summary judgment on Mr.
Underwood’s claim of wrongful termination in violation of public policy since it reached
the right conclusion, albeit for erroneous reasons. “It is the duty of the reviewing court to
affirm the judgment if it can be supported on any theory, although a different theory from
that of the trial court.” Newcomb v. Dredge, 105 Ohio App. 417, 424, 152 N.E.2d 801 (2d
Dist.1957). “This is so because reviewing courts affirm and reverse judgments, not the
reasons for the judgments.” Geneva v. Fende, 11th Dist. Ashtabula No. 2009-A-0023,
2009-Ohio-6380, ¶ 33. “Thus, when a trial court has stated an erroneous basis for its
judgment, an appellate court must affirm the judgment if it is legally correct on other
grounds, that is, it achieves the right result for the wrong reason, because such an error
is not prejudicial.” State v. Payton, 124 Ohio App.3d 552, 557, 706 N.E.2d 842 (12th
Dist.1997). See also State ex rel. Duncan v. Driscoll, Slip Opinion No. 2023-Ohio-3113,
¶ 11 (“[T]his court will not reverse a correct judgment merely because erroneous reasons
were given for it.”); Bloom v. Cent. Natl. Bank of Cleveland, 11th Dist. Geauga No. 630,
1975 WL 180976, *2 (Aug. 11, 1975).
{¶64} Mr. Underwood’s first assignment of error is without merit.
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Breach of Contract and Unpaid Compensation Claims
{¶65} We address Mr. Underwood’s second and third assignments of error
together since they fail for the same reason. We construe Mr. Underwood’s second
assignment of error to mean that if we find he was not an employee-at-will (and affirm the
lack of merit of his Greeley claim), we should remand for the trial court to consider the
evidence he submitted in support of his breach of contract claim on summary judgment
since he was terminated for an improper motive. In Mr. Underwood’s third assignment of
error, he contends the trial court erred in awarding summary judgment in favor of Tri-C by
finding he received “full compensation” for unused vacation and sick time because the
trial court failed to consider his affidavit, depositions, and a letter detailing unpaid
compensation (the VSP notice).
{¶66} It is clear from the court’s comprehensive judgment entry that it reviewed
Mr. Underwood’s evidence submitted on summary judgment. Further, we agree with the
trial court that he failed to introduce any evidentiary quality material in rebuttal that raised
genuine issues of material fact on any of his claims.
{¶67} Mr. Underwood had a reciprocal burden to provide evidentiary quality
material demonstrating a genuine issue of material fact exists. Dresher, supra, at 293;
Bressi v. Irwin, 2021-Ohio-2550, 175 N.E.3d 979, ¶ 52 (11th Dist.). Thus, pursuant to
Civ.R. 56(E), “[w]hen a motion for summary judgment is made and supported as provided
in this rule, an adverse party may not rest upon the mere allegations or denials of the
party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue for trial. If the
party does not so respond, summary judgment, if appropriate, shall be entered against
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the party.” (Emphasis added.) In other words, “[o]nce the burden of production has so
shifted, the party opposing summary judgment cannot rest on its pleadings or merely
reassert its previous allegations. It is not sufficient to ‘simply show that there is some
metaphysical doubt as to the material facts.’” Slyman v. Piqua, 494 F.Supp.2d 732, 734
(S.D.Ohio 2007), quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). See also Michigan Protection &
Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994) (“The plaintiff must present
more than a scintilla of evidence in support of his position; the evidence must be such
that a jury could reasonably find for the plaintiff.”).
{¶68} Firstly, Mr. Underwood failed to provide any evidence that he was
terminated in retaliation and/or for an improper motive for orally reporting his suspicions
that Mr. Paintiff was thieving from the scrap metal recycling program. There is no
evidence of theft. The fact that his employees were never asked about possible theft
does not indicate Tri-C was negligent in failing to investigate the scrap metal recycling
program, as Mr. Underwood contends. Rather, the evidence reflects that after making a
verbal complaint to Tri-C police, Mr. Underwood was directed to provide them with a
written report, which he failed to do. In fact, he withdrew his allegation via email to Ptlm.
Bailey. The depositions of Mr. Underwood’s employees further highlight that none of the
employees ever suspected theft or any problems with the scrap metal recycling program.
In addition, Mr. Underwood failed to submit evidentiary quality materials to raise a genuine
issue of material fact that monies were missing from the recycling program. He testified
he was not sure if he obtained the recycling receipts and checks from discovery or if they
were from his personal records and further stated they were all the records he could
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locate. He was not the keeper of these business records for Tri-C. He then compiled
them into a worksheet, which he believed showed a discrepancy of approximately
$10,000.
{¶69} Secondly, Mr. Underwood failed to submit any evidentiary quality materials
to rebut the evidence offered by Tri-C that demonstrated he was terminated for cause
and was in breach of the LOA. Tri-C submitted a comprehensive investigative report,
including the specific statutes and ethics laws Mr. Underwood was found to have violated,
the LOA, the administrative leave notice, and his termination letter.
{¶70} Thirdly, Mr. Underwood failed to provide any evidence in rebuttal that raises
a genuine issue of material fact that he was eligible for the VSP program and that he was
not compensated for his accumulated vacation and sick leave per Tri-C’s policy of
allowing employees to cash out up to 30 days of unused vacation days and sick leave.
{¶71} Mr. Underwood’s second and third assignments of error are without merit.
{¶72} The judgment of the Geauga County Court of Common Pleas is affirmed.
EUGENE A. LUCCI, J.,
ROBERT J. PATTON, J.,
concur.
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