Chiro v. Foley , 2013 Ohio 4808 ( 2013 )

[Cite as Chiro v. Foley, 2013-Ohio-4808.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99888
JOSEPH A. CHIRO
PLAINTIFF-APPELLANT
vs.
MARCIE L. FOLEY
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. CP-D-330950
BEFORE: E.A. Gallagher, J., Rocco, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: October 31, 2013
ATTORNEY FOR APPELLANT
Douglas P. Whipple
Whipple Law, L.L.C.
13940 Cedar Road
Suite 420
University Heights, OH 44118
ATTORNEY FOR APPELLEE
Joyce E. Barrett
800 Standard Building
1370 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:
{¶1} Joseph A. Chiro appeals from the decision of the Cuyahoga County
Common Pleas Court, Domestic Relations Division. Chiro argues the trial court erred
in concluding that he constructively discharged Marcie Foley from her position, by
admitting an email message into evidence, by excluding Chiro’s employee handbook, by
denying his motion to present additional evidence and in causing a delay of 16 months
from the presentation of evidence until the issuance of the decision. For the following
reasons, we affirm the decision of the trial court.
{¶2} Chiro filed for divorce from Foley in 2010 and the court entered a final
decree on November 19, 2010. Prior to their divorce, Foley had been an employee of
Chiro’s company, CHJ Corporation, d.b.a. Westview Acres Apartments. In the final
divorce decree, the parties agreed to the following language regarding spousal support:
Husband and Wife each waive his or her right to any spousal support
which may be due from the other at the present time. However, the court
retains jurisdiction for a period of three years to award spousal support to
the Wife for three (3) years in the event Wife’s employment is terminated
not for cause in which event Wife will be entitled to monthly spousal
support commensurate with her current salary of $50,000.00 plus benefits.
{¶3} The order further provides that “each party agrees not to annoy or interfere
with the other in any manner whatsoever.”
{¶4} On February 9, 2011, Foley filed a motion to establish spousal support.
On June 9, 2011, Chiro filed his motion to terminate spousal support. The court
conducted numerous pretrials in an attempt to narrow the issues raised in the parties’
motion. Ultimately, the parties stipulated that the issues raised in their respective
motions would be submitted to the court solely upon the parties’ submission of the
following documents to the court:
1) a transcript of a hearing before Hearing Officer Martin Kraus of the
State of Ohio Unemployment Compensation Review Commission
regarding the Defendant’s claim for Unemployment benefits;
2) such additional affidavits and written argument as the parties chose to
submit.
{¶5} Foley was employed by CHJ Corporation, Chiro’s business, before, during
and after the parties’ divorce. On April 19, 2011, Foley took a leave of absence from
her position with the company and effectively resigned from her employment. Foley
claims she was constructively terminated from her employment without cause and Chiro
asserts that Foley quit her job of her own accord.
{¶6} The evidence before the trial court included the previously-referenced
hearing before the State of Ohio Unemployment Compensation Review Commission
relating to Foley’s claim for unemployment benefits, which Chiro contested. The
transcript contains the testimony of Chiro, Foley and Liz Blystone. As stated by the
magistrate:
[A]t all times pertinent to this hearing, the Plaintiff was the President of
CHJ Corporation, that the Defendant and Ms. Blystone were employees of
the corporation before, during and after the parties’ divorce. Ms.
Blystone remained an employee of the corporation, at least through her
testimony before the State of Ohio Unemployment Compensation Review
Commission. Her email to the Defendant dated 7/13/11 was
acknowledge[d] and used by the hearing officer in the Unemployment
Compensation Review Commission proceeding. That same email
communique was submitted in this proceeding * * *.
{¶7} The magistrate reviewed the submitted evidence and concluded that Foley
was constructively terminated from her employment. The magistrate wrote as follows:
By his inaction relative [to] the demeanor of his employees (including the
Defendant) in the work place, the Plaintiff allowed a work environment
hostile to the Defendant to develop and to continue. Too, Plaintiff took it
on himself to change the Defendant’s employment in nature and in
remuneration, leaving her no choice than to accept the new terms of
employment put to her, or to quit. Either action by the Plaintiff, and
certainly both in concert, are sufficient acts by the Plaintiff to warrant a
finding that the Defendant was constructively terminated from her
employment. That Defendant failed to accept the new conditions and
wage reduction the Plaintiff instituted are not found to be circumstances
that would support a finding of termination of employment for cause.
The Magistrate concludes therefore that the Defendant was constructively
terminated from her employment by the Plaintiff on 4/19/11. Defendant’s
termination was neither with cause, nor is it deemed to have been
voluntary. Defendant is entitled to receive spousal support from the
Plaintiff, therefore, pursuant to the terms of the divorce.
{¶8} The magistrate awarded Foley a total of $4,631.58 per month with all
spousal support terminating on September 18, 2013. Chiro objected to the magistrate’s
decision but the trial court adopted the decision in its entirety. Chiro appeals, raising
the following assigned errors:
Assignment of Error I
The conclusion that Appellee was forced into an involuntary resignation of
her employment is against the manifest weight of the evidence.
Assignment of Error II
The Magistrate erred and abused his discretion, to the prejudice of
Appellant, by admitting into evidence the email message of Elizabeth
Blystone.
Assignment of Error III
The Magistrate erred and abused its discretion, to the prejudice of
Appellant, by excluding from evidence the Employee Handbook of
Appellee’s employer.
Assignment of Error IV
The Trial Court erred and abused its discretion, to the prejudice of
Appellant, by denying Appellant’s motion to present additional evidence.
Assignment of Error V
Appellant sustained prejudice due to the delay of one year and four months
from the presentation of evidence until the issuance of the Magistrate’s
decision.
{¶9} In his first assigned error, Chiro argues the trial court erred in concluding
that Foley was constructively discharged from her employment. We find no merit to
this assigned error.
{¶10} In Usaj v. Philips Med. Sys. Inc., 8th Dist. Cuyahoga No. 85296,
2005-Ohio-4132, this court discussed the required burden for a constructive discharge
claim.
To establish a “constructive discharge,” a plaintiff must show that the
employer “deliberately makes an employee’s working conditions so
intolerable that the employee is forced into an involuntary resignation.”
Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983), quoting
Young v. Southwestern Savings & Loan Assn., 509 F.2d 140, 144 (5th
Cir.1975). A constructive discharge generally cannot be established,
however, simply through evidence that an employee was dissatisfied with
the nature of his assignments. Stetson v. NYNEX Serv. Co., 995 F.2d 355,
360-361 (2d Cir.1993). “To find that an employee’s resignation
amounted to a constructive discharge, the ‘trier of fact must be satisfied
that the * * * working conditions would have been so difficult or
unpleasant that a reasonable person in the employee’s shoes would have
felt compelled to resign.” Lopez v. S.B. Thomas, Inc., 831 F.2d 1184,
1188 (2d Cir.1987), quoting Rosado v. Santiago, 562 F.2d 114, 119 (1st
Cir.1977). In Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62,
73 (2d Cir.2000), the court found that constructive discharge occurs if
“working conditions are intolerable if they are so difficult or unpleasant
that a reasonable person in the employee’s shoes would have felt
compelled to resign.” Id., quoting Chertkova v. Connecticut Gen. Life
Ins., 92 F.3d 81, 89 (2d Cir.1996). Constructive discharge also requires
deliberate action on the employer’s part, and while the meaning of
“deliberate” is unsettled, “something beyond mere negligence or
ineffectiveness is required.” Whidbee v. Garzarelli at 74; see, e.g., Kader
v. Paper Software, Inc., 111 F.3d 337, 341 (2d Cir.1997).
{¶11} In the present case, the evidence shows that prior to the parties’ divorce,
Foley’s employment was that of the “boss’s wife” in a moderately sized business.
Foley performed a variety of tasks for the business, she was free to do what she pleased,
when she pleased and for which she was paid a salary of $51,000 per year with benefits.
Prior to the divorce, there was no set limit on Foley’s leave time and there was no
credible evidence before the trial court that Foley worked under any expectation that she
work any specified number of hours in a week. Foley received bonuses regularly.
{¶12} Subsequent to the parties’ divorce, Chiro unilaterally changed the terms
of Foley’s employment, effectively changing the nature and description of her job.
Specifically, Chiro adjusted Foley from a salaried employee to an hourly rate employee
earning $22.36 per hour. At that hourly rate and in order to maintain her yearly salary
of $51,000, Foley would be required to work 44 hours in a week, something that was
never required of her prior to the divorce. Chiro brought his children into the office
and gave them authority over Foley. Additionally, Chiro took steps in the office to
more closely define and monitor the work Foley performed. Chiro’s daughter, with
whom Foley did not share a cordial relationship, was identified as the individual
communicating the new requirements and procedures to Foley. The evidence shows
that post divorce, the quality of the work environment dramatically declined.
{¶13} Based on the above evidence, the magistrate concluded that Foley was
constructively discharged from her employment. We agree. Chiro’s inaction relative
to the demeanor of his employees including both his children and Foley allowed a work
environment hostile to Foley to develop and to continue. Additionally, Chiro altered
Foley’s employment in nature and in compensation, leaving her no choice but to accept
the new terms of employment put to her or to quit. These actions, taken together, are
sufficient to warrant a finding that Foley was constructively discharged from her
employment.
{¶14} Chiro’s first assignment of error is overruled.
{¶15} In his second assignment of error, Chiro argues the trial court erred and
abused its discretion by admitting into evidence the email message of Elizabeth
Blystone. We disagree.
{¶16} The admission or exclusion of evidence rests within the sound discretion
of the trial court. Abriani v. Abriani, 8th Dist. Cuyahoga Nos. 88597 and 88599,
2007-Ohio-3534; State v. Jacks, 63 Ohio App.3d 200, 207, 578 N.E.2d 512 (1989).
Therefore, “an appellate court which reviews the trial court’s admission or exclusion of
evidence must limit its review to whether the lower court abused its discretion.” State
v. Finnerty, 45 Ohio St.3d 104, 107, 543 N.E.2d 1233 (1989). An abuse of discretion
connotes more than an error in law or judgment; it implies that the court’s attitude is
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983). A reviewing court should not substitute its judgment for
that of the trial court. See generally State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d
264 (1984).
{¶17} Chiro argues the email is inadmissible according to Evid.R. 802, which
states that hearsay is not admissible except as otherwise provided by the rules. Hearsay
is defined as an out of court statement offered to prove the truth of the matter asserted.
See Evid.R. 801(C). However, Evid.R. 801(D) outlines statements that are not
considered hearsay, which include a prior statement by a witness. In particular, Evid.R.
801(D)(1)(b) provides that if the declarant testifies at trial or hearing and is subject to
cross-examination concerning the statement and the statement is consistent with the
declarant’s testimony and is offered to rebut an express or implied charge against
declarant of recent fabrication or improper influence or motive, the statement is not
hearsay.
{¶18} The facts of the present case fit squarely within the Evid.R. 801(D)(1)(b)
hearsay exception. Elizabeth Blystone wrote an email to Foley setting forth a litany of
events and occurrences at the CHJ office over the first six months of 2011. The email
speaks of changes in staffing (the advent of Chiro’s children working at the office),
changes in office procedures, and bickering between Chiro’s children and Foley. Both
Chiro and Foley called Elizabeth Blystone as a witness in the Unemployment Hearing
Commission hearing and she was subjected to cross-examination by both parties.
Blystone’s testimony was consistent with her statements in the email to Foley. Further,
Chiro was audibly frustrated by Blystone’s testimony during the hearing as he believed
Blystone was not being forthcoming about the events in the office.
{¶19} This court concludes that the trial court did not abuse its discretion in
admitting the email of Elizabeth Blystone as it fell within the hearsay exclusion outlined
in Evid.R. 801(D)(1)(b). Chiro’s second assignment of error is overruled.
{¶20} In his third assignment of error, Chiro argues the trial court erred in
excluding the employee handbook of Westview Acres Apartments. On November 21,
2011, Foley moved the trial court to strike the Westview Acres Apartments employees’
handbook claiming that it was not part of the agreed-upon evidence upon which this case
was to be decided. The magistrate agreed and struck the employee handbook from the
evidence.
{¶21} As stated in the magistrate’s decision,
the parties, through counsel, stipulated that the issues raised in the within
motions would, in lieu of a full evidentiary hearing, be submitted to the
court solely upon the parties’ submission to the Magistrate of the following
documents:
1) a transcript of a hearing before Hearing Officer Martin Kraus of the
State of Ohio Unemployment Compensation Review Commission
regarding the Defendant’s claim for Unemployment Benefits;
2) such additional affidavits and written argument as the parties chose to
submit.
{¶22} Thus, Chiro had an opportunity to present the employee handbook as
evidence before the court but failed to do so. We find no error with the court’s decision
upholding the evidentiary submissions in accordance with the parties’ own agreement.
{¶23} Chiro’s third assignment of error is overruled.
{¶24} In his fourth assignment of error, Chiro argues the trial court abused its
discretion in denying his motion to present additional evidence. Subsequent to the
magistrate’s decision, Chiro filed a motion to present additional evidence relating to an
alleged investigation of embezzlement involving Foley and company funds. In
particular, Chiro sought to admit the following exhibits: 1) an affidavit signed by Foley
on February 4, 2011, detailing her hostile-work environment claim and demand for
spousal support, 2) a letter dated April 20, 2011, between Chiro’s counsel and Foley’s
then counsel regarding Chiro’s alleged claims of embezzlement and 3) a contract signed
by Chiro and North Coast Investigations dated April 14, 2011.
{¶25} The trial court denied Chiro’s motion and we see no reason not to affirm
this denial. Civ.R. 53(D)(4)(d) provides that in ruling on objections to the magistrate’s
decision, the court “may hear additional evidence but may refuse to do so unless the
objecting party demonstrates that the party could not, with reasonable diligence, have
produced that evidence for consideration by the magistrate.” See also McClain v.
McClain, 11th Dist. Portage No. 98-P-0002, 1999 Ohio App. LEXIS 4655 (Sept. 30,
1999). Chiro failed to make any showing that he was unable to produce the three
exhibits for consideration by the magistrate. In fact, Chiro and Foley agreed to limit the
evidence before the magistrate to:
1) a transcript of a hearing before Hearing Officer Martin Kraus of the
State of Ohio Unemployment Compensation Review Commission
regarding the Defendant’s claim for Unemployment Benefits;
2) such additional affidavits and written argument as the parties chose to
submit.
{¶26} Chiro never presented the three exhibits to the magistrate for
consideration even though all three were available for presentation at the time of the
court’s decision. Thus, the court was well within its rights to refuse to consider Chiro’s
additional evidence under Civ.R. 53(D)(4)(d).
{¶27} Chiro’s fourth assignment of error is overruled.
{¶28} In his fifth and final assignment of error, Chiro argues he suffered
prejudice because of the 16-month delay from the presentation of evidence until the
issuance of the magistrate’s decision. We find no merit to this assignment of error.
{¶29} In putting forth this argument, Chiro fails to cite to any legal authority for
his claim. An appellate court may disregard an assignment of error pursuant to App.R.
12(A)(2) if an appellant fails to cite to any legal authority in support of an argument as
required by App.R. 16(A)(7). State v. Martin, 12th Dist. Warren No. CA99-01-003,
1999 Ohio App. LEXIS 3266 (July 12, 1999), citing Meerhoff v. Huntington Mtge.
Co., 103 Ohio App.3d 164, 658 N.E.2d 1109 (3d Dist. 1995); Siemientkowshi v. State
Farm Ins., 8th Dist. Cuyahoga No. 85323, 2005-Ohio-4295. “If an argument exists that
can support this assigned error, it is not this court’s duty to root it out.” Cardone v.
Cardone, 9th Dist. Summit Nos. 18349 and 18673, 1998 Ohio App. LEXIS 2028 (May
6, 1998).
{¶30} Although we do find troubling the court’s delay between the presentation
of evidence and the magistrate’s decision, Chiro’s failure to cite to any legal authority
allows this court to disregard this argument, App.R. 12(A)(2); App.R. 16(A)(7).
{¶31} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said lower court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
KENNETH A. ROCCO, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR