Tarver v. Delta Tranz, LLC et al

Filing 15

Opinion & Order signed by Judge James S. Gwin on 4/5/18 granting in part and denying in part plaintiff's motion for reconsideration. The Court grants plaintiff's motion for summary judgment on his wrongful termination in violation of public policy claim and grants plaintiff $41,256.00 in damages for this claim. The Court denies plaintiff's motion for summary judgment on his whistleblower claim. (Related Doc. 14 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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JOHN TARVER,
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Plaintiff,
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v.
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DELTA TRANZ, LLC, et al.
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Defendants.
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CASE NO. 1:17-cv-01963

OPINION & ORDER
[Resolving Doc. No. 14]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff John Tarver moves for reconsideration of the Court’s previous opinion granting
in part and denying in part his summary judgment motion against Defendants Delta Tranz, LLC,
Edina Duric, and Eddie Duric (“Defendants”).1 Defendants have failed to appear in this case.
For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART
Plaintiff Tarver’s motion for reconsideration. The Court GRANTS Tarver’s motion for
summary judgment on his wrongful termination in violation of public policy claim and awards
him $41,256.00 in damages for this claim.
A more detailed factual background of the events leading to this case can be found in the
Court’s original summary judgment opinion.2 In brief, Plaintiff Tarver was a truck driver for
Defendants.3 At some point during Tarver’s employment, Tarver’s truck malfunctioned, and he
informed Defendants of this malfunction both orally and in writing.4 Defendants took no steps to
fix the truck and instructed Tarver to keep driving it.5 Eventually the truck’s problems caused

1

Doc. 14.
See Doc. 13.
3
See Doc. 14-1 at ¶¶ 1-5.
4
Id. at ¶¶ 10-29.
5
See id. at ¶¶ 22-33.
2

Case No. 1:17-cv-1963
Gwin, J.
the truck to shut down while Tarver was driving.6 Tarver again complained to Defendants about
the truck and refused to keep driving it because it was a danger to himself and others.7
Defendants fired Tarver almost immediately after this exchange.8
On Tarver’s initial motion for summary judgment, the Court granted his Fair Labor
Standards Act, Ohio Wage Act, and unjust enrichment claims. The Court denied Tarver’s Ohio
whistleblower claim because he failed to make any outside report about the unsafe truck and did
not provide sufficient evidence of his internal written reports. The Court denied Tarver’s
wrongful termination in violation of public policy claim because he did not identify a sufficiently
specific public policy. Tarver now asks the Court to reconsider these denials.
Whether to reconsider a prior order is “within the discretion of the district court.”9
Tarver argues that the Court incorrectly held that the Ohio whistleblower statute requires
a plaintiff to make a report to an outside authority to gain its protections. Tarver cites Contreras
v. Ferro Corp.10 and the statute’s text for his argument.
Although Tarver quotes extensively from Contreras, he ignores that the Ohio Supreme
Court opens its discussion of the whistleblower statute’s requirements by stating that, “[Ohio
Revised Code §] 4113.52(A)(1) protects an employee for reporting certain information to outside
authorities . . . .”11 Contreras therefore does not help Tarver.
Tarver’s argument that the whistleblower statute uses the permissive “may” instead of the
mandatory “shall” when referring to making an outside report also fails.12 Ohio’s whistleblower
statute requires any prospective whistleblower to undertake three intra-company requirements

6

Id. at ¶¶ 28-42.
Id.
8
Id. at ¶ 43.
9
See Rheinfrank v. Abbott Laboratories, Inc., 137 F. Supp. 3d 1035, 1038 (S.D. Ohio 2015).
10
652 N.E.2d. 940 (Ohio 1995).
11
Id. at 944 (emphasis added).
12
See Ohio Rev. Code § 4113.52.
7

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Case No. 1:17-cv-1963
Gwin, J.
before the employee may make a protected outside report.13 In this context, the word “may”
simply means that an employee can choose whether he wishes to blow the whistle and gain the
statute’s protections.
For these reasons, Tarver’s whistleblower claim fails as a matter of law.
Tarver also asks the Court to reconsider its denial of his wrongful termination in violation
of public policy claim. Tarver now argues that Defendants terminated him in violation of Ohio’s
public policy in favor of workplace safety, as codified in Ohio Revised Code §§ 4101.11 and
4101.12. The Court agrees.
Both state and federal courts have recognized that Ohio Revised Code §§ 4101.11 and
4101.12 state a sufficiently specific public policy to support a wrongful termination claim.14
Tarver’s text messages—stating that driving Defendants’ truck would risk his life and reporting
that the truck’s brakes and engine malfunctioned—support his claim that he complained about a
genuine workplace safety issue.15 Allowing Defendants to terminate Tarver for reporting this
information could jeopardize Ohio’s public policy in favor of workplace safety. Defendants
have admitted that they fired Tarver because he made these complaints and that they had no
legitimate business justification for firing Tarver.16
Tarver has therefore met the requirements for a wrongful termination in violation of
public policy claim.17 For these reasons, the Court reconsiders its previous denial of this claim
and GRANTS Tarver’s motion for summary judgment on this claim.

13

Id.
See Jenkins v. Central Transport, Inc., No. 9-CV-525, 2010 WL 420027, at *3 (N.D. Ohio Jan. 20, 2010) (citing
Kulch v. Structural Fibers, Inc., 677 N.E.2d 308 (Ohio 1997)).
15
See Doc. 14-1 at ¶¶ 17-41.
16
See Doc. 14-5 at 5-6 (request for admissions).
17
See Zajc v. Hycomp, Inc., 873 N.E.2d 337, 341-42 (Ohio Ct. App. 2007).
14

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Case No. 1:17-cv-1963
Gwin, J.
Because the Court has granted Tarver summary judgment on his wrongful termination
claim, he is entitled to his lost wages as damages. Because Tarver spent time unemployed after
Defendants fired him and because he drives significantly less for his new employer than he did
for Defendants, he is entitled to $41,256.00 in lost wages18 in addition to the damages, attorney’s
fees, and costs the Court awarded him in its previous opinion.19
For these reasons, the Court GRANTS IN PART and DENIES IN PART Tarver’s
motion for reconsideration. The Court GRANTS Tarver’s motion for summary judgment on his
wrongful termination in violation of public policy claim and GRANTS Tarver $41,256.00 in
damages for this claim. The Court DENIES Tarver’s motion for summary judgment on his
whistleblower claim.

IT IS SO ORDERED.

Dated: April 5, 2018

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19

s/
James S. Gwin___________
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

See Doc. 14-1 at ¶¶ 47-54.
See Doc. 13 at 9-10.

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