Kusens v. Pascal Company

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0154p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant/ -
GARY KUSENS,
Cross-Appellee, -
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Nos. 04-3570/3682
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v. >
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Defendants-Appellees/ -
PASCAL COMPANY, INC., et al.,
Cross-Appellants. -
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 02-00879—John R. Adams, District Judge.
Argued: July 28, 2005
Decided and Filed: May 9, 2006
Before: ROGERS and SUTTON, Circuit Judges; ROSEN, District Judge.*
_________________
COUNSEL
ARGUED: Gregory A. Gordillo, LAW OFFICES OF GREGORY A. GORDILLO, Cleveland,
Ohio, for Appellant. Robert N. Stein, Cleveland, Ohio, for Appellees. ON BRIEF: Gregory A.
Gordillo, LAW OFFICES OF GREGORY A. GORDILLO, Cleveland, Ohio, Ann-Marie Ahern,
SIMON LAW FIRM, Cleveland, Ohio, for Appellant. Robert N. Stein, Cleveland, Ohio, for
Appellees.
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OPINION
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ROSEN, District Judge.
I. INTRODUCTION
Plaintiff Gary Kusens appeals from the District Court’s entry of judgment as a matter of law
in favor of the Defendants in this diversity action stemming from the termination of Plaintiff’s
employment. After a full trial on the merits, the District Court granted the defendants’ motion for
judgment as a matter of law on Kusens’ statutory age discrimination and retaliation claims, but
*
The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of Michigan, sitting by
designation.
1
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denied the motion with respect to Plaintiff’s Ohio public policy claim. The public policy claim was
sent to the jury, which returned a verdict in favor of Kusens. Defendants then renewed their motion
for judgment as a matter of law on the public policy claim and the District Court granted the
renewed motion finding that Plaintiff had failed to establish at trial that he was an at-will employee,
which the court held to be an essential element of a public policy claim under Ohio law. For the
reasons that follow, we AFFIRM the District Court’s decisions.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
Plaintiff Gary Kusens was employed by Defendant Pascal Company, Inc. (“Pascal”) from
1991 until October 1, 2001, when his position was eliminated. At that time, Plaintiff was 54 years
old.
Kusens began his employment with Pascal as a “Manufacturer’s Sales Representative” or
“Territory Representative,” responsible for selling dental products and developing accounts in his
territory, which included Chicago, Milwaukee and other areas in the Midwest. In 1999 Plaintiff
became a “Regional Sales Manager” which entailed additional supervisory and managerial duties.
His base salary increased and his commissions were determined as a fixed percentage of nationwide
Pascal sales.
During the latter part of the 1990s, however, Pascal’s nationwide sales began to decline. To
alleviate the company’s financial difficulties, Pascal obtained funding from CAPCO Financial.
CAPCO, however, conditioned the funding on Pascal cutting expenses by eliminating personnel.
Pascal complied with CAPCO’s requirement and eliminated two of its four Regional Sales Managers
-- Plaintiff Kusens and Jim Thorndale.
Two of the people responsible for the elimination of Plaintiff’s position were Defendant
Benjamin Paschall, the owner and CEO of the company, and Defendant Janet Siwinski, Pascal’s
Vice President of Sales and Marketing who was also Plaintiff’s direct supervisor. At the time of the
termination of his employment, Plaintiff was the oldest of the four Regional Sales Managers at
Pascal, and Jim Thorndale, who was terminated the same day as Plaintiff, was the second oldest.
The youngest two Sales Managers were retained. Following his termination, Plaintiff filed suit
contending that he was fired because of his age and not because of Pascal’s financial strategy.
To prove his claims of age discrimination and wrongful discharge in violation of public
policy, Plaintiff offered as evidence the testimony of a number of Pascal employees who testified
that both Benjamin Paschall and Janet Siwinski harbored ageist attitudes, both in general, and with
regard to Mr. Kusens, specifically.
Eugene Babos, Pascal’s former president, testified that Benjamin Paschall repeatedly stated
that “when you [are] over 50, you can’t sell . . . you are too old to be a salesman.” William “Sam”
Wiebe, one of the retained Regional Sales Managers, testified that Defendant Paschall told him that
he did not like keeping older people because “older people were expensive. . . , that older people
kind of drove up prices and insurance.”
Wiebe also testified that Janet Siwinski made a number of comments directed at Plaintiff
including “Gary, you’re acting old. We need more energy. We need younger people on board. We
need some young guns. . . . We don’t need old people out in sales anymore. We need to get
younger,” and specifically stated to Wiebe, “That Kusens is sure acting like an old man.” Wiebe
further testified that, after Plaintiff was terminated, and Wiebe still retained, Siwinski told him that
he was “the new way of doing business; out with the old in with the new.” Plaintiff Kusens also
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 3
testified that Siwinski called him “old” on a number of occasions; that she would tell him “[t]hat I
was acting old. Stop acting old. You are old.”
Plaintiff also offered as evidence that age motivated the decision to terminate him, a
memorandum written by Defendant Siwinski to Salli Stretti, a Sales Consultant with Holt Dental,
in which Siwinski stated:
We had to release Jim and Gary October 1. . . . The stress was pretty darn bad, let
me tell you!. . . . Anyway,. . . [w]e did find a young man for the Chicago/Milwaukee
territory. Steve Zielinski, a 24-year-old pharmaceutical rep. It sure is a lot more fun
to hire than fire, and I just love the energy and enthusiasm of young people who want
to work instead of oldies who want a free ride. . . .
B. PROCEDURAL BACKGROUND
Plaintiff originally filed his four-count complaint on March 29, 2002 in the Cuyahoga
County, Ohio Court of Common Pleas alleging claims of age discrimination under Ohio Revised
Code § 4112.02(A) against his former employer, Defendant Pascal Company Inc. (Count I), the
company’s owner, Benjamin Paschall (Count II), and his former supervisor, Janet Siwinski (Count
III). Plaintiff also alleged a common law claim against Pascal for wrongful discharge in violation
of Ohio public policy (Count IV). Defendants removed the case to the United States District Court
for the Northern District of Ohio on the basis of diversity jurisdiction.1 Following removal,
Defendant Pascal filed a Counterclaim alleging that Plaintiff had breached his employment
obligations to Pascal through the fraudulent use of company funds, equipment, and resources for
purposes unrelated to his employment. In response to the Counterclaim, Kusens filed a
“Supplement” to his Complaint, adding a state-law retaliation claim under O.R.C. § 4112.02(I)
alleging that Pascal filed the Counterclaim to retaliate against him for filing his age discrimination
claims.
After the close of discovery, Defendants moved for summary judgment on all of Plaintiffs’
claims. Defendants argued that Plaintiff failed to make out a prima facie claim of age discrimination
or of violation of public policy under either a direct evidence approach or under the McDonnell
Douglas standard. Defendants further argued that even if Plaintiff had made out a prima facie case,
Defendants offered a non-discriminatory reason for their actions, i.e., economic necessity and a
reduction-in-force, and Plaintiff failed to establish that the proffered reason was pretextual. With
respect to the retaliation claim, Defendants argued that § 4112.02(I) applies only to adverse
“employment” actions and, since Plaintiff was no longer employed by Pascal when the Counterclaim
was filed, he could not make out a retaliation claim under the statute as a matter of law.
On October 31, 2003, the District Court entered an Opinion and Order denying Defendants’
motion for summary judgment, finding that issues of material fact existed with respect to whether
Defendants engaged in age discrimination in violation of Ohio law. Additionally, the District Court
found that genuine issues of material fact existed with respect to whether Defendants’ filing of a
Counterclaim against Kusens constituted an unlawful retaliatory act. Accordingly, the case
proceeded to trial before a jury on November 3, 2005.
After the close of proofs, Defendants made an oral motion for judgment as a matter of law
(“JMOL”) on all of Plaintiff’s claims on a variety of bases. First, Defendants argued that Plaintiff
had failed to present direct evidence of discrimination and had failed to meet the McDonnell
Douglas test. Defendants further argued that Plaintiff had failed to show pretext. Second,
1
Pascal is a Washington corporation and has its principal place of business in that state. The individual
defendants are also residents of the State of Washington.
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 4
Defendants argued that Pascal Company is not an “employer” covered by the Ohio Civil Rights
statute because it did not have four or more employees within the State of Ohio. The court agreed
with Defendants on this last point and, accordingly, granted Defendants’ motion with regard to
Plaintiff’s claims of discrimination and retaliation under the civil rights statute.
The court then asked counsel to address the issue of whether Plaintiff’s remaining claim
under Ohio public policy should remain and be submitted to the jury. Defense counsel argued that
the public policy claim was not argued nor even referenced in Plaintiff’s opening statement or at any
other time during the course of trial and, therefore, the claim should be dismissed in its entirety.
Plaintiff’s counsel countered that the claim should be presented to the jury because
we certainly made reference to all the pertinent facts which gave rise [to] all of the
claims pled. . . including the wrongful discharge and policy. The fact that we didn’t
identify the legal theory, public policy, is no basis to have the direct[ed] verdict. The
facts stated during the open[ing] statement was [sic; were] sufficient to state the
claim.
Although the District Court indicated that it believed defense counsel was correct in that
there had been no argument regarding the public policy claim presented during trial and noted
defense counsel’s exception for the record, it nonetheless ordered that this one claim2be submitted
to the jury, “leav[ing] th[e] matter to be reviewed by perhaps others at a later time.”
On November 7, 2003, the jury returned a verdict in favor of the Plaintiff on his public policy
claim, and awarded him $950,000 in damages. J.A. p. 487.3 Defendants timely filed a Renewed
Motion for Judgment as a Matter of Law, or in the Alternative, for New Trial or Remittitur, arguing
that “[d]uring trial the Plaintiff as a matter of law failed to establish a cause of action sounding in
wrongful discharge in violation of Ohio public policy.” Defendants detailed this argument in their
Memorandum in support of the motion pointing out that “Plaintiff failed to meet his burden to plead
and prove all the elements necessary to establish a cause of action for wrongful discharge in
violation of Ohio public policy,” and specifically enumerated three deficiencies in Plaintiff’s proofs:
1. The Plaintiff failed to plead and prove that he was an employee at will;
2. The uncontradicted evidence at trial established that the Plaintiff’s position
was eliminated for overriding business considerations; and
3. The Plaintiff failed to establish a causal link between what he claimed was
evidence of age based animus and the complained of employment decision.
The District Court granted Defendants’ renewed motion for JMOL in an Order and Decision
entered February 23, 2004.4 Specifically, the court held that
Pascal is entitled to judgment as a matter of law on the ground that Kusens failed to
adequately plead and prove at trial his claim for wrongful discharge in violation of
public policy.
2
However, the District Court noted that the public policy claim was pled in Plaintiff’s Complaint against only
Defendant Pascal Company. Therefore, it found no cause of action remaining against individual defendants Siwinski
and Paschall. Accordingly, only the claim against Defendant Pascal Company was submitted to the jury.
3
The jury also found in favor of Plaintiff and against Defendant Pascal Company on Pascal’s counterclaim
for fraud.
4
The February 23, 2004 Order and Decision is silent as to Defendant’s alternative motion for new trial.
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 5
2/23/04 Order and Decision, p. 1. The court explained the precise basis for its decision:
Under Ohio law, recovery for tortious violation of public policy is available only to
at-will employees. Kusens neglected to plead or present any evidence that he was
an at-will employee when Pascal terminated his position. Thus, the jury’s verdict
cannot stand.
Id. at 1-2.5 Accordingly, Judgment was entered in favor of Defendants and against Plaintiff Kusens.
Plaintiff subsequently filed a Fed. R. Civ. P. 59(e) Motion to Alter Judgment, or in the
Alternative, for a New Trial pursuant to Fed. R. Civ. P. 59(a) and 50(c)(2), asking the court to
reinstate the jury’s verdict or in the alternative, to vacate its judgment and order a new trial on the
sole issue concerning whether Mr. Kusens was an employee at-will during his employment with
Pascal. The District Court denied both the Rule 59(e) motion and the alternative new trial motion
in an April 12, 2004 Order and Decision. Plaintiff timely filed a Notice of Appeal.
On appeal, Plaintiff argues (1) that the District Court erred in granting Defendants’ renewed
motion for JMOL because Defendants waived the argument that Kusens failed to produce evidence
of at-will employment by their failure to raise this issue in their pre-verdict motion for judgment as
a matter of law; (2) that even if the issue was not waived, employment at-will is not a requirement
for Ohio public policy claims; (3) that if there is a requirement of at-will employment, the
presumption of at-will employment should apply in absence of evidence to the contrary; (4) that
even if evidence should have been produced by Plaintiff on the issue of his status as an at-will
employee, the District Court should have granted a new trial limited to the issue of Kusens’
employment status; (5) that the District Court erred in granting Defendants’ pre-verdict motion for
judgment as a matter of law on Kusens’ statutory retaliation claim because the anti-retaliation
provision of the Ohio Civil Rights statute applies to “any person,” not just to employers; and (6) the
District Court erred in granting judgment as a matter of law to the individual defendants on Kusens’
discrimination claims on the grounds that the individual defendants were not employed by an
“employer” under the Ohio statute.
In response Defendants argue that this Court lacks jurisdiction to hear this appeal because,
when it ruled on Defendants’ renewed motion for judgment as a matter of law, the District Court
failed to rule on Defendants’ alternative motion for new trial and that, even if this Court does have
jurisdiction, Kusens waived his right to object to the District Court’s decision to grant Defendants’
pre-verdict motion for judgment as a matter of law on Kusens’ statutory discrimination and
retaliation claims. Finally, Defendants cross-appeal arguing that the District Court should have
granted their pre-trial motion for summary judgment.
III. ANALYSIS
A. THE COURT HAS JURISDICTION TO HEAR THE INSTANT APPEAL
As an initial matter, we will address Defendants’ argument that this Court lacks jurisdiction
to entertain this appeal. Defendants’ argument is predicated on the fact that although the District
Court ruled on Defendants’ Renewed Motion for Judgment as a Matter of Law, it never expressly
ruled on Defendants’ Alternative Motion for New Trial or Remittitur. Defendants contend that
because the District Court neither denied nor conditionally granted their Alternative Motion for a
5
Because it found Kusens’ failure to plead and prove at-will employment to be dispositive, the District Court
found that it was not necessary to address Defendant’s other arguments. See 2/23/04 Order and Decision, p. 5 n.2.
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 6
New Trial or Remittitur as required by Fed. R. Civ. P. 50(c),6 there has not been a “final decision”
in this case such that jurisdiction over this matter is conferred on the Court of Appeals under 28
U.S.C. § 1291.7
In support of their argument, Defendants rely upon Inge v. Rock Financial Corp., 281 F.3d
613 (6th Cir. 2002), in which we stated that “[a] district court’s decision is ‘final’ for purposes of
§ 1291 when it ‘ends the litigation on the merits and leaves nothing for the court to do but execute
the judgment.’” Id. at 617 (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). However,
neither Inge, nor Catlin, for that matter, involved a question of appellate court jurisdiction when a
renewed motion for JMOL is joined with an alternative motion for new trial but only the motion for
JMOL is expressly ruled upon by the lower court. Inge addressed the finality issue only with regard
to the timeliness of a notice of appeal and the effect on the 30-day time limit of a trial court’s
subsequent decision on a Rule 59(e) motion to vacate or reconsider the court’s earlier dismissal
order. Inge states nothing about whether a trial court’s failure to explicitly rule on a motion for new
trial joined only as an alternative to a renewed motion for judgment as a matter of law affects the
appellate court’s jurisdiction to entertain an appeal of the JMOL.8 There is no precedent in this
Circuit addressing this precise issue.
The Ninth Circuit squarely addressed the jurisdictional effect of an undecided alternative
motion for new trial in Vollrath Co. v. Sammi Corp., 9 F.3d 1455 (9th Cir. 1993), cert. denied, 511
U.S. 1142 (1994). As in this case, in Vollrath, the district court granted the defendant’s motion for
judgment notwithstanding the verdict but did not issue a conditional ruling on the defendant’s
alternative motion for new trial as required by Fed. R. Civ. P. 50(c). The Court of Appeals found
that this was error but determined the mere fact that the district court failed to comply with the
requisites of the rule did not answer the question as to whether this error deprived the court of
appellate jurisdiction. After careful analysis, the Vollrath court ultimately answered this question
in the negative.
The court began by noting that Rule 50(c) does not specify the consequences for failure to
issue a conditional ruling on the new trial motion. 9 F.3d at 1458. The court further specifically
observed that Rule 50(c) does not indicate that such a conditional ruling is a prerequisite to appellate
jurisdiction.
The court, therefore, proceeded to examine Rule 50(c) and its interplay with Fed. R. App.
P. 4(a), which governs the time for filing a notice of appeal, and noted that the authorities prior to
the 1979 amendment adopting subsection (4) of Fed. R. App. P. 4(a) were “in general agreement that
the district court’s failure to rule on a new trial motion in the alternative is, at most, a procedural
6
Rule 50(c) provides, in pertinent part:
(1) If the renewed motion for judgment as a matter of law is granted, the court shall also rule on the
motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter
vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial
....
Fed. R. Civ. P. 50(c)(1).
7
28 U.S.C. § 1291 provides:
The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have
jurisdiction of appeals from all final decisions of the district courts of the United States. . . .
8
Catlin, which is cited in Inge, is likewise inapposite. Catlin involved the question of finality for the purposes
of “piece meal” appeals of pre-judgment orders entered in a condemnation action.
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 7
flaw that does not affect appellate jurisdiction.” Id. The court then examined the effect of the
addition of subsection (4) to Fed. R. App. P. 4(a),which, at the time, provided, as follows:
If a timely motion under Federal Rules of Civil Procedure is filed in the
district court by any party: (i) for judgment under Rule 50(b); (ii) under Rule
52(b) to amend or make additional findings of fact, whether or not an
alteration of the judgment would be required if the motion is granted; (iii)
under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a
new trial, the time for appeal for all parties shall run from the entry of the
order denying a new trial or granting or denying any other such motion. A
notice of appeal filed before the disposition of any of the above motions shall
have no effect. A new notice of appeal must be filed within the prescribed
time measured from the entry of the order disposing of the motion as
provided above. . . .9
The court first observed that the express words of Rule 4(a)(4) do not require an alternate
ruling on a motion for new trial before a notice of appeal may be filed and then also noted that the
policy behind the rule does not counsel that result:
Rule 4(a) prevents a party from appealing a judgment when a pending
post-judgment motion renders the judgment non-final. Fed. R. App. P. Rule 4(a).
Specifically, the Advisory Committee note to the 1979 amendment to Rule 4(a)(4)
makes clear that the rule was intended to prevent the appellate court from assuming
jurisdiction in a case “while the district court has before it a motion the granting of
which would vacate or alter the judgment appealed from.” Fed.R.App.P. 4(a)(4)
Advisory Committee’s note to 1979 amendment [emphasis supplied in original].
When a district court grants a motion for JNOV, that order is the final judgment of
the court. The district court does not have before it [in an alternative motion for new
trial] a motion “the granting of which would vacate or alter that judgment.” The
judgment based on the JNOV could be altered only by reversal on appeal, not by any
ruling by the district court.
We therefore conclude that we may properly exercise appellate jurisdiction
over this case.
9
This subsection of Fed. R. App. P. 4 has been amended several times since 1979; however, the subsequent
amendments would not affect the issue presented in this appeal or the Vollrath court’s analysis of the jurisdictional issue.
In its present form, the pertinent provisions of Fed. R. App. P. 4(a)(4) provide:
(A) If a party timely files in the district court any of the following motions under the Federal Rules
of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing
of the last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b), whether or not
granting the motion would alter the judgment;
(iii) for attorney’s fees under Rule 54 if the district court extends the time to appeal
under Rule 58;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is filed no later than 10 days after the
judgment is entered.
(B)(i) If a party files a notice of appeal after the court announces or enters a judgment -- but before
it disposes of any motion listed in Rule 4(a)(4)(A) -- the notice becomes effective to appeal a judgment
or order, in whole or in part, when the order disposing of the last such remaining motion is entered.
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 8
9 F.3d at 1459 (additional emphasis added).
Although not squarely addressing the question of jurisdiction, a number of other courts have
addressed the question of how to proceed when confronted with an appeal of a decision on a motion
for JMOL where the district court had failed to rule on an alternate motion for new trial. Although
not directed toward the precise issue presented here -- whether the District Court’s failure to rule
upon an alternative motion for new trial deprives this Court of appellate jurisdiction -- these
decisions are instructive as to how appellate courts have viewed such inaction by district courts.
In Ellison v. Conoco, Inc., 950 F.2d 1196, 1206 (5th Cir. 1992), cert. denied, 509 U.S. 907
(1993), the Fifth Circuit affirmed the district court’s ruling on the defendant’s motion for JNOV (i.e.,
JMOL),10 and then found that, in light of that affirmance, the district court’s failure to rule on the
defendant’s alternative motion for new trial constituted at most harmless error. And, where the
district court’s ruling on a JMOL motion could be read as an inferential denial of the alternative new
trial motion, appellate courts have found no error in a district court’s failure to conform with the
technical strictures of Rule 50(c)(1). See, e.g., Cleveland v. Home Shopping Network, Inc., 369 F.
3d 1189, 1195-96 (11th Cir. 2004); see also Normand v. Research Institute of America, Inc., 927
F.2d 857, 866 (5th Cir. 1991).
Normand is particularly helpful. In Normand, although the appellate court noted that the
better practice would have been for the district court to have expressly ruled on the defendant’s new
trial motion, 927 F.2d at 866 n. 5, it determined that an express ruling was not necessary in that case
because it found that a denial of the new trial motion could be inferred from the district court’s
ruling on the defendant’s motion for judgment notwithstanding the verdict:
Although the [district] court did not expressly rule on RIA’s motion for new trial, its
unequivocal judgment reflects an intent to dispose of the case completely and,
inferentially, to reject the new trial motion. Reviewing the motion, and noting that
RIA never sought a clarification of the judgment that would decide the new trial
motion, we are convinced that it was denied.
927 F.2d at 866 (footnote omitted). But see Havird Oil Co., Inc. v. Marathon Oil Co., Inc., 149 F.3d
283, 288 (4th Cir. 1998) (“Rule 50(c) requires an explicit ruling on a motion for new trial. . . a
priori, the Rule does not permit entry of judgment to dispose of the motion implicitly.”)
In addressing the question of whether an issue has been preserved for appeal, the Fifth,
Seventh and Eleventh Circuits take the position that the burden is on the party whose motion
invoked Rule 50(c) in the trial court to pursue a direct ruling on the alternative motion for a new trial
when the district court granted the judgment as a matter of law in order to preserve the issue for
appeal. See, e.g., Vera Cruz v. Chesapeake & O. R.R., 312 F.2d 330, 332 (7th Cir. 1963), cert.
denied, 375 U.S. 813 (1963); Oberman v. Dun & Bradstreet, Inc., 507 F.2d 349, 353 (7th Cir. 1974);
Edwards v. Board of Regents, 2 F.3d 382, 384 n. 6 (11th Cir. 1993); Arenson v. Southern University
Law Center, 43 F.3d 194, 197 (5th Cir. 1995). Where the moving party did not press upon the lower
court the issue of the need for a ruling on the new trial motion after the grant of a motion for JMOL,
according to the Seventh and Eleventh Circuits it is deemed to have been abandoned. Edwards,
supra; Vera Cruz, supra.
Under this approach, it would have been incumbent upon Defendants to file a motion for
reconsideration or clarification in the district court if they also wanted a ruling on their alternative
10
The 1991 amendments of Rule 50 replaced the terminology “directed verdict” and “judgment
notwithstanding the verdict,” or “JNOV,” with the current terms “judgment as a matter of law” and “renewed judgment
as a matter of law.”
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 9
new trial motion after the district court granted their renewed motion for judgment as a matter of
law, and their failure to do so would constitute a waiver of their right to raise this issue as a matter
of appeal.
Other courts have taken the position that, notwithstanding the language of Fed. R. Civ. P.
50(c)(1) directing that “[i]f the renewed motion for judgment as a matter of law is granted, the
[district] court shall also rule on the motion for a new trial,” where an appeal is filed in a case where
the district court failed to enter a conditional order on a new trial motion, the appellate court has
discretion either to remand the matter to the district court to let it decide the new trial motion, or to
decide the new trial motion itself in connection with the appeal of the JMOL. See, e.g., Freund v.
Nycomed Amersham, 347 F.3d 752, 764-765 (9th Cir. 2003), and cases cited therein. Cf., Neely v.
Martin K. Eby Construction Co., 386 U.S. 317, 322 (1967) (noting that under Rule 50(c)(1), the trial
judge should rule conditionally on the new trial motion when he grants judgment n.o.v. but finding
implicit in the Rule’s provisions that the appellate court has the right itself to grant or deny a new
trial in appropriate cases).
The above-discussed decisions instruct on our jurisdictional question not only by their
content but also by their silence because to have made the rulings they did, the various courts of
appeals first would have had to have been satisfied that appellate jurisdiction existed.
It is well-established that the federal courts are under an independent obligation to examine
their own jurisdiction. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S. Ct. 596, 607
(1990). Thus, the courts of appeals have an independent duty to satisfy themselves of their appellate
jurisdiction before entertaining an appeal regardless of whether jurisdiction is challenged by the
parties. See General Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1024 (6th Cir. 1994). See
also, Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1274 (10th Cir. 2001); Kreider Dairy Farms,
Inc. v. Glickman, 190 F.3d 113, 118 (3d Cir. 1999); Dannenberg v. Software Toolworks, Inc., 16
F.3d 1073, 1074 n. 1 (9th Cir. 1994). Accordingly, before the courts in the cases discussed herein
could find harmless error or an inferential denial of an alternative new trial motion, for example,
they would have had to have determined first that appellate jurisdiction existed. Therefore, their
substantive rulings arguably also constitute sub silentio findings that the requisites for appellate
jurisdiction were satisfied.
Guided by the various decisions discussed herein, we conclude that the District Court’s
failure to explicitly rule on Defendant’s alternative motion for new trial in this case does not affect
our jurisdiction over this appeal. We first note, as did the Ninth Circuit in Vollrath, that a Rule
50(c) alternative motion for new trial is not one of the motions listed in the current version of Fed.
R. App. P. 4(a)(4) that would render a notice of appeal effective only after the district court enters
an order disposing of such motion. Thus, under the plain language of Rule 4, there is nothing
precluding this Court from assuming jurisdiction over this matter. Moreover, as the Ninth Circuit
found in Vollrath, a conditional ruling on Defendants’ alternative motion for new trial in this case
would not vacate or alter the district court’s decision on the renewed motion for judgment as a
matter of law. The grant of the renewed motion for JMOL is the “final judgment” of the district
court.
Furthermore, as the Fifth Circuit found with respect to the district court’s ruling in Normand,
in this case, it can be inferred not only from the Judgment but also from the District Court’s various
post-trial rulings that the District Court at least implicitly denied Defendants’ alternative new trial
motion when it granted Defendants’ Renewed Motion for Judgment as a Matter of Law and then
expressly denied both Plaintiff’s subsequent Motion to Alter Judgment and his Alternative Motion
for a New Trial. Additionally, as indicated above, Defendants did not pursue the alternative new
trial issue in the District Court after its renewed motion for JMOL was granted. Defendants never
filed a motion for clarification nor did they request an amendment of the judgment. Under these
circumstances, we conclude that Defendants’ alternative motion for new trial was implicitly denied
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 10
and that the District Court’s failure to explicitly rule on the matter was at most a harmless procedural
error which does not affect our jurisdiction over this appeal.
B. STANDARD OF REVIEW
We review de novo a district court’s grant of judgment as a matter of law pursuant to Fed.
R. Civ. P. 50. Snyder v. A.G. Trucking, Inc., 57 F.3d 484, 490 (6th Cir. 1995). Judgment as a
matter of law is proper where “there is no legally sufficient evidentiary basis for a reasonable jury
to find for [the non-moving] party on that issue,” and where the claim “cannot under the controlling
law be maintained. . . without a favorable finding on that issue.” Fed. R. Civ. P. 50(a). In diversity
cases, when a Rule 50 motion for judgment as a matter of law is based on a challenge to the
sufficiency of the evidence, this Court applies the standard of review used by the courts of the state
whose substantive law governs the action. Morales v. American Honda Motor Co., 151 F.3d 500,
506 (6th Cir. 1998); K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 176 (6th Cir. 1996).
This diversity case is governed by Ohio substantive law. Under Ohio law, “[t]he test for
granting a directed verdict or a judgment n.o.v. is whether the movant is entitled to judgment as a
matter of law when the evidence is construed most strongly in favor of the nonmovant.” Sanek v.
Duracote Corp., 43 Ohio St. 3d 169, 539 N.E.2d 1114, 1117 (Ohio 1989). Such a motion will be
granted only if, after considering the evidence in this light, there can be but one reasonable
conclusion as to the proper verdict. Constr. Interior Sys., Inc. v. Marriott Family Rest., Inc., 984
F.2d 749, 753 (6th Cir. 1993), cert. denied, 510 U.S. 869 (1993).
C. DEFENDANTS DID NOT WAIVE THEIR POST-TRIAL JMOL ARGUMENT THAT
PLAINTIFF FAILED TO PRODUCE EVIDENCE OF AT-WILL EMPLOYMENT
Plaintiff raises a threshold question with respect to Defendants’ renewed motion for
judgment as a matter of law: Plaintiff argues that the District Court was without authority to grant
Defendants’ renewed motion for judgment as a matter of law because Defendants failed to raise
Kusens’ failure to plead and prove employment at-will in their Rule 50(a) pre-verdict motion for
JMOL. Plaintiff thus argues that Defendants waived their right to raise this issue in a post-verdict
motion. Plaintiff contends that Defendants’ pre-verdict oral motion for judgment as a matter of law
on the public policy claim was predicated only upon one ground -- Plaintiff’s failure to mention the
public policy claim in his opening statement. He claims no argument of failure to prove an essential
element of his claim -- at-will employment -- was ever made.
Under Fed. R. Civ. P. 50(a), a motion for judgment as a matter of law must “specify the
judgment sought and the law and facts on which the moving party is entitled to the judgment.” A
post-trial motion for judgment may not advance additional grounds that were not raised in the pre-
verdict motion. American and Foreign Ins. Co. v. Bolt, 106 F.3d 155, 159-60 (6th Cir. 1997).
However, in stating the grounds in the required pre-verdict motion, technical precision is not
necessary. Rockport Pharmacy, Inc. v. Digital Simplistics, Inc., 53 F.3d 195, 197 (8th Cir. 1995);
Scottish Heritable Trust, PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir.1996), cert.
denied, 519 U.S. 869 (1996) (“Technical noncompliance with Rule 50(b) may be excused in
situations in which the purposes of the rule are satisfied.”)
Although Rule 50(a) requires a motion for judgment as a matter of law to state the “specific
grounds,” the rule does not define how specific the grounds must be. Anderson v. United Telephone
Co. of Kansas, 933 F.2d 1500, 1504 (10th Cir. 1991), cert. denied, 502 U.S. 940 (1991). Because
the requirement that a Rule 50(a) motion must precede a Rule 50(b) motion is “harsh in any
circumstance,” a Rule 50(a) motion should not be reviewed narrowly but rather in light of the
purpose of the rules to secure a just, speedy, and inexpensive determination of the case. Id. at 1503.
Accordingly, where Rule 50(a)’s purpose -- i.e., providing notice to the court and opposing counsel
of any deficiencies in the opposing party’s case prior to sending it to the jury -- has been met, courts
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 11
usually take a liberal view of what constitutes a pre-verdict motion sufficient to support a post-
verdict motion. See Rankin v. Evans, 133 F.3d 1425, 1432-33 (11th Cir. 1998), cert. denied, 525
U.S. 823 (1998) (collecting cases).
Guided by these principles, the court in Rockport Pharmacy, Inc. v. Digital Simplistics, Inc.,
supra, found a broadly-stated argument in the defendant’s pre-verdict motion sufficient to authorize
the consideration of the defendant’s more specifically stated post-verdict motion. In that tort action,
the defendant argued in its pre-verdict motion that, under Missouri law, there must be a duty of care
owed to the plaintiff and that a mere breach of contract does not establish such a duty. Defendant
repeated that same argument in its post-trial motion, but in a supplemental brief supporting that
motion, provided further basis for its no-duty claim arguing that there can be no tort liability under
Missouri law where the plaintiff is seeking recovery solely for economic losses. 53 F.3d at 197.
The district court concluded that the only issue preserved for consideration was whether the
defendant owed a duty of care that was independent of the parties’ contractual relationship and,
having already found in denying the defendant’s pre-verdict motion that defendant owed such a
duty, defendant’s post-verdict motion was denied. Id.
The Eighth Circuit reversed, explaining:
Although the economic loss ground advanced in Digital’s post-trial motion may have
been somewhat different from the duty-of-care ground advanced in the pre-verdict
motion, we conclude that those grounds were inextricably intertwined. Under
Missouri law, in any negligence action the plaintiff must first establish that a duty
exists by the defendant to protect the plaintiff from the injury suffered. The mere
existence of a contract does not give rise to a duty in tort. Similarly, there is no duty
to exercise reasonable care to protect against a loss that is purely economic in nature.
Consequently, in determining whether a breach of contract may give rise to tort
liability, the nature of the alleged injury is an essential factor that must be
considered.
The substance of Rockport’s negligence claim is for the recovery of losses
arising out of [] Digital’s alleged breach of contract. Thus, the nature of Rockport’s
alleged injury is an essential factor in determining whether Digital can be considered
to have owed Rockport a duty of reasonable care. The district court did not consider
the nature of Rockport’s injury in answering the duty question. . . . Given that the
nature of an alleged injury arising from a breach of contract is necessarily subsumed
within the duty question, we conclude that the economic loss argument was
adequately raised by Digital’s duty-of-care argument. The nature of the claimed
injury is a necessary element in answering the question whether Digital owed
Rockport a duty of care that was independent of the parties’ contractual relationship.
Accordingly, we conclude that Digital’s economic loss argument is properly before
us.
Id. at 198 (citations and some internal punctuation omitted). See also Parkway Garage, Inc. v. City
of Philadelphia, 5 F.3d 685, 691 (3d Cir.1993) (holding that an issue raised in a pre-verdict motion,
albeit “a bit obliquely,” sufficed to warrant consideration of a more specifically-stated post-verdict
motion for JMOL).
This case is substantially similar to Rockport. In Rockport, the defendant presented in its
pre-verdict motion only a generalized no-duty-of-care argument challenging the sufficiency of
plaintiff’s negligence claim. Then, in its post-verdict motion, defendant argued with specificity the
failure of the plaintiff to establish an “essential element” of the duty of care. Here, Defendants’ pre-
verdict motion argument was a general argument made orally that Plaintiff failed to argue his public
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 12
policy claim, at all. The post-verdict motion, which was made in writing and was fully briefed,
presented the failure to establish a public policy claim with specificity.
In making his pre-verdict motion, defense counsel stated:
The public policy claim was not argued, not mentioned in the opening statement.
Therefore, at that point in time, I was actually entitled to make a directed verdict
[motion] after the opening statement and I am doing that [a]t this point now, because
there’s been no reference to it in this case.
Plaintiff’s counsel countered:
[W]e certainly made reference to all the pertinent facts which gave rise [to] all of the
claims pled. . . including the wrongful discharge and policy. The fact that we didn’t
identify the legal theory, public policy, is no basis to have the direct[ed] verdict. The
facts stated during the open[ing] statement was [sic; were] sufficient to state the
claim.
After considering the arguments of counsel, the court noted Defendants’ exception for the
record and expressly acknowledged, “I believe [Defendants] are correct. There has been no
argument regarding [the] public policy claim in this case.” Nonetheless, the District Court
determined that the public policy claim should be submitted to the jury and to “leave the matter to
be reviewed. . . at a later time.” Defense counsel’s argument and the court’s on-the-record
statements and ruling were sufficient to alert Plaintiff to the evidentiary insufficiency alleged by
Defendants -- his failure to plead and prove his cause of action. See generally, Gutzwiller v. Fenik,
860 F.2d 1317, 1330 (6th Cir. 1988) (a pre-verdict motion must alert opposing counsel to the
evidentiary insufficiency with enough specificity to allow counsel the opportunity to correct the
deficiency before the matter is submitted to the jury).
After the jury returned a verdict in favor of Plaintiff, Defendants submitted a written motion
and brief arguing that “Plaintiff failed to meet his burden to plead and prove all the elements
necessary to establish a cause of action for wrongful discharge in violation of Ohio public policy,”
and then argued specifically, the failure to plead or prove three elements in particular, including the
element of at-will employment.
Although this is a close question, we find no error in the District Court’s conclusion that
“[i]n the Motion for J.N.O.V. [sic; JMOL], Pascal simply restate[d] the identical argument [raised
in its pre-verdict motion] in more precise terms.” 2/23/04 Order and Decision, p. 7. Accordingly,
we find that no waiver occurred.
D. EMPLOYMENT AT-WILL IS AN ESSENTIAL ELEMENT OF A CLAIM OF
WRONGFUL DISCHARGE IN VIOLATION OF OHIO PUBLIC POLICY
Plaintiff next argues that the District Court erred in determining that at-will employment is
an essential element of an Ohio public policy claim and that Plaintiff, therefore, was required to
prove his status as an at-will employee at trial.
The tort action for wrongful discharge in violation of public policy had its genesis in Ohio
in Greeley v. Miami Valley Maintenance Contractors, Inc., 49 Ohio St. 3d 228, 551 N.E.2d 981
(1990). In that case, a terminated employee brought a complaint alleging that he was discharged as
a result of a court order that required his employer to withhold the terminated employee’s child
support payments through wage assignment. At that time in Ohio, O.R.C. § 3113.213(D) prohibited
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 13
the firing of employees because of court orders to withhold earnings.11 The trial court dismissed
the complaint finding that it failed to state a claim upon which relief could be granted because no
claim sounding in tort existed in Ohio for wrongful discharge. The court of appeals affirmed. The
Ohio Supreme Court reversed, finding that, although O.R.C. § 3113.213(D) did not provide for a
civil cause of action to be brought by an aggrieved employee, public policy required that the
terminated employee be given a common-law cause of action in wrongful discharge to redress a
violation of the statute.
Accordingly, the Greeley court created a public policy exception to the at-will employment doctrine:
We believe that the time has come for Ohio to join the great number of states
which recognize a public policy exception to the employment-at-will doctrine. The
General Assembly has expressed its will that employers be prohibited from
discharging employees for the reason upon which appellant bases his cause of action.
It is our job to enforce, not frustrate, that policy.
Therefore, we hold that public 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.
49 Ohio St. 3d at 233-34, 551 N.E.2d at 986 (footnote omitted).
It is under this tort theory that Plaintiff Kusens sued his former employer. However, it is
well-settled under Ohio law that in order for an employee to bring a cause of action pursuant to
Greeley, supra, that employee must have been an employee at-will. See Haynes v. Zoological Soc.
of Cincinnati, 73 Ohio St. 3d 254, 258, 652 N.E.2d 948, 951 (1995); Stephenson v. Yellow Freight
Systems, Inc., No. 99 AP-77,1999 WL 969817, *5 (Ohio App. 10 Dist. 1999), app. denied, 88 Ohio
St. 3d 1432, 724 N.E.2d 809 (2000); Edwards v. Dubruiel, No. 2002-CA-50, 2002 WL 31846259,
*8 (Ohio App. 2 Dist. 2002) (“Greeley claims are limited to at-will employees”); Woods v.
Miamisburg City Schools, 254 F. Supp. 2d 868, 877 (S.D. Ohio 2003) (“[A]lthough Ohio recognizes
claims for discharge in violation of public policy, Ohio courts have repeatedly rejected attempts to
expand that claim beyond the discharge of an at-will employee.”). It has further been explicitly held
that “to establish a claim for tortious violation of public policy, [Plaintiff] had to plead and prove
that he was an employee at will.” Strausbaugh v. Ohio Dept. of Transportation, 150 Ohio App. 3d
438, 449, 782 N.E.2d 92, 100 (2002). Where the discharged employee fails to prove at trial that he
was an employee at-will, entry of judgment in favor of the defendant-employer is proper. See id.,
150 Ohio App. 3d at 449, 782 N.E.2d at 101.
1. Coolidge v. Riverdale Local School District Did Not Abrogate the Requirement
of At-Will Employment
Plaintiff claims that the rule enunciated in Haynes v. Zoological Soc. of Cincinnati -- that in
order for an employee to bring a cause of action pursuant to Greeley, the aggrieved employee must
have been an employee at-will -- was overruled by the Ohio Supreme Court in Coolidge v. Riverdale
Local School District, 100 Ohio St. 3d 141, 797 N.E.2d 61 (2003). Plaintiff contends, that in
Coolidge, the Ohio Supreme Court created a cause of action for wrongful discharge in violation of
public policy even though the plaintiff in Coolidge was not an at-will employee. Plaintiff believes
11
O.R.C. § 3113.213 was repealed in 2000 and provisions analogous to former § 3113.213 are now codified
at § 3121.39 which provides:
No. . . employer may use a requirement to withhold personal earnings contained in a withholding
notice issued under section 3121.03 of the Revised Code as a basis for a discharge of, or for any
disciplinary action against, an employee, or as a basis for a refusal to employ a person.
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 14
that since Coolidge was allowed to pursue her Ohio public policy claim even though she was not
an at-will employee, a proper inference would be that at-will employment is no longer a prerequisite
to establishing a claim for wrongful discharge in violation of a public policy.
Plaintiff misconstrues Coolidge. In that case, an Ohio public school teacher suffered a work-
related injury and was receiving workers’ compensation temporary total disability (“TTD”) benefits.
When the teacher exhausted all leave available under 12 her employment contract, the school board
terminated her due to her continued absence from work. Following her termination, Coolidge filed
suit claiming that her discharge contravened the public policy reflected in the Ohio Workers’
Compensation Act’s TTD provision, O.R.C. § 4123.56, and the anti-retaliatory provision of the
statute, O.R.C. § 4123.90, which provides:
No employer shall discharge, demote, reassign, or take any punitive action against
any employee because the employee filed a claim or instituted, pursued or testified
in any proceedings under the workers’ compensation act for an injury or
occupational disease which occurred in the course of and arising out of his
employment with that employer.
Prior to Coolidge, Ohio recognized such claims only when the plaintiff’s claim was
predicated upon the filing of a workers’ compensation claim. In Coolidge, the Ohio Supreme Court
determined that the public policy embodied within the Workers’ Compensation Act warranted
extending the coverage of the anti-retaliation statute to persons already receiving TTD benefits, as
well. The Coolidge court reasoned:
A temporarily and totally disabled employee is by definition physically
unable to perform the duties of his or her former position of employment.
Considering that the statute is designed to provide the injured worker with the
necessary means to subsist during a period of TTD, it would be inconsistent to allow
the employer to fire such a worker solely because of the disability for which the
employee is being compensated.
***
In our opinion, the policy of protection embodied in the Workers’
Compensation Act can be effectuated only if an employer is not permitted to
discharge an employee for being absent from work due to an allowed injury for
which the employee is receiving TTD compensation. We hold, therefore, that an
employee who is receiving TTD compensation pursuant to R.C. 4123.56 may not be
discharged solely on the basis of absenteeism or inability to work, when the absence
or inability to work is directly related to an allowed condition.
100 Ohio St. 3d at 150, 797 N.E.2d at 69-70 (citations omitted and emphasis added). See also Salyer
v. Honda of America Mfg., Inc., No. 2:04 CV 988, 2005 WL 2338786, *10 (S.D. Ohio 2005) (“The
rule prohibiting the discharge of an employee based on absences for an allowed injury is necessary
to ‘protect the right of employees to freely pursue workers’ compensation benefits without fear of
reprisal. . . .’”(quoting Coolidge, 797 N.E.2d at 66-67)).
12
As an Ohio public school teacher, Coolidge was statutorily guaranteed an employment contract terminable
for cause only. O.R.C. § 3319.16 provides, in pertinent part:
The contract of any teacher employed by the board of education of any city, exempted village, local,
county, or joint vocational school district may not be terminated except for gross inefficiency or
immorality; for willful and persistent violations of reasonable regulations of the board of education;
or for other good and just cause. . . .
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 15
As is evident from the foregoing excerpt, the “public policy” holding in Coolidge was
narrowly confined to claims of discharge in contravention of the policy underpinnings of the
Workers’ Compensation Act. Nothing in Coolidge abrogated the requirement of at-will employment
for violation of public policy claims outside of the workers’ compensation context. Had the Ohio
Supreme Court intended to eliminate the at-will requirement across the entire spectrum of public
policy-based lawsuits, it could have said so. Rather Coolidge’s holding is tightly tethered to the
unique policy considerations of Ohio’s workers’ compensation statute. In our view, it would not
be appropriate for a federal appellate court sitting in diversity to extend the Ohio Supreme Court’s
decision beyond its clearly demarcated boundaries.
2. The Presumption of At-Will Employment Does Not Relieve Plaintiff of Pleading
and Proving All of the Elements of His Public Policy Tort Claim
Plaintiff further argues that even if at-will employment is a requirement of a claim of
wrongful discharge in violation of public policy he was relieved of the burden of pleading and
proving this element because, under Ohio law, a contract for employment is presumed to be at-will.
Plaintiff is correct that, when the nature of an employment contract is at issue, the presumption is
that the contract is terminable at-will. See Mers v. Dispatch Printing Company, 19 Ohio St. 3d 100,
103, 483 N.E.2d 150, 153 (1985); Clark v. Collins Bus Corp., 136 Ohio App. 3d 448, 451, 736
N.E.2d 970, 973 (2000). Indeed, as the Mers court observed, this has long been recognized as
standard contract law in Ohio. See, e.g., LaFrance Elec. Constr. & Supply Co. v. International
Brotherhood, 108 Ohio St. 61, 140 N.E. 899 (1923); Henkel v. Educ. Research Council, 45 Ohio
St.2d 249, 344 N.E.2d 118 (1976); Fawcett v. G.C. Murphy & Co. (1976), 46 Ohio St. 2d 245, 348
N.E.2d 144 (1976); Evely v. Carlon Co., 4 Ohio St. 3d 163, 447 N.E.2d 1290 (1983). The rule
extrapolated from these breach of contract cases is that when an issue is presented as to the nature,
or type, of employment relationship that existed between the parties, absent evidence to the contrary,
the presumption is that the employment relationship is at-will. However, these breach of contract
cases do not control in questions concerning the burden of proof in a public policy tort claim.
As noted, under Greeley and its progeny, it is the affirmative duty of the plaintiff seeking to
recover under a public policy tort theory to plead and prove that he was an at-will employee. This
was made very clear by the court in Strausbaugh v. Ohio Dept. of Transportation, supra. In
Strausbaugh, following a bench trial, the trial court entered judgment in favor of the defendant-
employer on the plaintiff’s public policy tort claim. The Ohio appellate court affirmed the trial
court’s judgment, finding:
Here, Strausbaugh neither pled nor proved that he was an employee at will
or that he received any form of discipline or was discharged.
***
[T]o establish a claim for tortious violation of public policy, Strausbaugh
had to plead and prove that he was an employee at will. See Stephenson v. Yellow
Freight Sys., Inc. (Oct. 26, 1999), Franklin App. No. 99AP-77, 1999 WL 969817,
citing Haynes v. Zoological Soc. of Cincinnati (1995), 73 Ohio St. 3d 254, 652
N.E.2d 948, syllabus. He failed to do so.
***
. . . Because Strausbaugh failed to prove he was an at-will employee or that he was
discharged or disciplined in violation of public policy, the judgment was not contrary
to the weight of the evidence. . . .
150 Ohio App. 3d at 449-450, 782 N.E.2d at 100-101 (emphasis added).
Strausbaugh makes clear that Plaintiff’s contention that he was relieved of the burden of
pleading and proving at trial that he was an at-will employee is without merit.
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 16
For all of the foregoing reasons, we find no error in the District Court’s grant of Defendants’
renewed motion for judgment as a matter of law.
E. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING
PLAINTIFF HIS REQUEST FOR A NEW TRIAL ON THE AT-WILL ISSUE
Plaintiff also argues that, even if his trial proofs were deficient, the District Court should
have granted him a new trial limited to the issue of his employment status.
We review a district court’s denial of a motion for new trial for an abuse of discretion, which
we have defined as “a definite and firm conviction that the trial court committed a clear error of
judgment.” Webster v. Edward D. Jones & Co., 197 F.3d 815, 818-19 (6th Cir. 1999) (quoting
Tobin v. Astra Pharm. Prod., 993 F.2d 528, 541 (6th Cir. 1993)). A district court abuses its
discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law
or uses an erroneous legal standard. Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir.1995).
Other than to assert in his appellate brief that “as the judgment stands now, it was the result
of the trial being unfair” to him,13 Plaintiff fails to present any substantive argument to support his
claim that he is entitled to a new trial independent of the argument (which we have already rejected)
that the District Court erred in granting the Defendants’ renewed motion for JMOL. The reasons
supporting the District Court’s grant of Defendants’ motion for judgment as a matter of law also
support the denial of Plaintiff’s new trial motion. Plaintiff is not entitled to a new trial to establish
the elements of the claim he failed to make out when he presented his case to the jury. He has
already had his one “bite of the apple” and he failed.
Accordingly, we find no abuse of discretion on the part of the District Court in denying
Plaintiff’s motion for new trial.
F. PLAINTIFF WAIVED HIS RIGHT TO RAISE HIS APPELLATE ARGUMENTS
REGARDING HIS DISCRIMINATION AND RETALIATION CLAIMS
Plaintiff next contends that the District Court erred in granting Defendants’ pre-verdict
motion for JMOL on his statutory age discrimination and retaliation claims. The District Court
dismissed Plaintiff’s age discrimination and retaliation claims, holding that the Ohio Civil Rights
statute applies only to employers who have four or more employees within the State of Ohio.
Because Defendant Pascal Company had at most two employees within the state, the court found
that provisions of Civil Rights statute were inapplicable and, hence, Plaintiff could maintain no
claim of age discrimination or retaliation under the statute against any of the Defendants.
13
We included “the trial being unfair to the moving party in some fashion” as one of the grounds that would
warrant a new trial in our decision in Holmes v. City of Massillon, 78 F.3d 1041, 1046 (6th Cir. 1996), cert denied, 519
U.S. 935 (1996):
Pursuant to Federal Rule of Civil Procedure 59(a), a new trial may be granted “in an action in which
there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted
in actions at law in the courts of the United States.” Fed. R. Civ. P. 59(a). Generally courts have
interpreted this language to mean that a new trial is warranted when a jury has reached a “seriously
erroneous result” as evidenced by: (1) the verdict being against the weight of the evidence; (2) the
damages being excessive; or (3) the trial being unfair to the moving party in some fashion, i.e., the
proceedings being influenced by prejudice or bias.
Id. at 1045-46.
As we noted in Holmes, the “trial being unfair to the moving party in some fashion” ground requires a showing
that the proceedings were influenced by prejudice or bias. There has been no such showing in this case.
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 17
In this appeal, Plaintiff argues that even if an employer is not covered under the statute
because of insufficient number of employees within the state, there is no requirement that there be
four or more employees within the state in order for individual supervisors and managers such as
Defendants Siwinski and Paschall to be held liable for discrimination. Plaintiff further argues that
the statutory prohibition against retaliation in O.R.C. § 4112.02(I) is not limited in its application
to “employers” but rather applies to “any person,” and since “person” is defined in the statute as
including corporations, the District Court erred in dismissing his statutory retaliation claim against
Pascal Company. Plaintiff, however, did not raise either of these arguments in the District Court
and raises them instead for the first time in this appeal.
In opposing Defendants’ motion for JMOL Plaintiff made no argument that the individual
supervisor/manager defendants could be held liable even if the employer could not because it did
not have the statutorily required four employees within the state. See Trial Tr. pp. 383-384. Plaintiff
argued only that the court should count all employees of an employer who does business within the
State of Ohio, no matter where they are located, for purposes of coverage under the statute. Id.14
It is well-settled that issues not presented to the district court but raised for the first time on
appeal are not properly before this Court. See J.C. Wyckoff & Assocs., Inc. v. Standard Fire Ins.
Co., 936 F.2d 1474, 1488 (6th Cir. 1991); Boone Coal & Timber Co. v. Polan, 787 F.2d 1056, 1064
(6th Cir. 1986). See also, Armstrong v. City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006)
(“[T]he failure to present an issue to the district court forfeits the right to have the argument
addressed on appeal.”) As we explained in Armstrong, this Court’s “function is to review the case
presented to the district court, rather than a better case fashioned after a[n] ... unfavorable order.”
Id. (citations omitted). Accordingly, we decline to consider Plaintiff’s arguments concerning the
dismissal of his discrimination claim.
Kusens has also waived his argument on appeal that the district court should not have
dismissed his retaliation claims because retaliation claims may be brought against “persons,” not
only “employers.” The Defendants’ oral motion for dismissal appears to have concerned only the
discrimination claims, so it may not be surprising that Kusens did not raise his argument concerning
his retaliation claim in response to that motion. Nevertheless, after a recess, the District Court
dismissed the discrimination claims and then held: “The plaintiff’s claim for retaliation will
likewise be dismissed.” Kusens neither objected after the district court’s dismissal of his retaliation
claim nor filed a motion for reconsideration. Kusens’ failure to allow the District Court to correct
any contested error deprives him now of the opportunity to raise this argument on appeal.
G. DEFENDANTS’ CROSS-APPEAL IS MOOT
Finally, Defendants have cross-appealed the District Court’s denial of their pre-trial motion
for summary judgment. The District Court denied Defendants’ motion for summary judgment
finding that Plaintiff (1) presented sufficient evidence to satisfy the requirements of a prima facie
case of age discrimination and (2) presented sufficient evidence to create a question of material fact
14
With regard to the statute’s anti-discrimination provisions, Plaintiff argued only that the Ohio statute should
be construed like Title VII which, for purposes of the federal statute’s 15-employee requirement, counts employees
outside of the United States so long as the employer does business within the United States. Thus, Plaintiff argued:
[O]n the issue of the number of employees, we believe that’s too narrow of a reading of the statute.
While it does refer to the number of employees, that is, the employer has employees, we believe that
the proper reading of that statute is that the employer has to do business within the state and provided
that the employer does business within the state, the number of employees that the employer has in
total should be counted. . . regardless of whether those employees are located in state or out of state.
See Trial Tr. p. 384.
Nos. 04-3570/3682 Kusens v. Pascal Company, Inc., et al. Page 18
on the issue of pretext and the ultimate issue of discrimination. The court also found that Plaintiff
had presented sufficient evidence of an “adverse employment action” to support his claim of
retaliation. Accordingly, the court allowed Plaintiff to proceed to trial on his claims.
As discussed above, however, Defendants ultimately succeeded on post-trial motions in
obtaining the dismissal of all of Plaintiff’s claims (albeit on legal grounds not argued in their motion
for summary judgment) and, for the reasons set forth in this Opinion, we have affirmed all of the
District Court’s rulings. Accordingly, as Defendants themselves concede, the issues presented in
their Cross-Appeal are now moot.
IV. CONCLUSION
For all of the reasons set forth above, the Judgment of the District Court is AFFIRMED.