Genco v. YWCA of Greater Cincinnati, Inc.
Filing
48
MEMORANDUM OPINION AND ORDER - IT IS ORDERED that defendants motion for summary judgment (Doc. 38 ) be, and is hereby, GRANTED. Signed by Judge William O. Bertelsman on 08/22/2018. (bjc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CIVIL ACTION NO. 1:17-0462 (WOB)
SANDRA LYNN GENCO
VS.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
YWCA OF GREATER
CINCINNATI, INC.
DEFENDANT
This matter is before the Court on defendant’s motion for
summary judgment (Doc. 38), which the Court previously took under
advisement (Doc. 47).
Having reviewed this matter further, the Court now issues the
following Memorandum Opinion and Order.
Factual and Procedural Background
Plaintiff Sandra Lynn Genco (“Genco”) was born on June 6,
1955. (Genco Depo. Dc. 39-1 at #270).
Genco began working for the
YWCA of Greater Cincinnati (“YWCA”) in June 1998 as the Finance
Director. (Id. at #273).
This title changed in name only to Vice
President of Finance in 2015. (Id. at #287-88).
YWCA is a not-
for-profit
at
social
services
organization
aimed
eliminating
racism and empowering women. (Perez Aff., Doc. 38-2, #242, 243
¶9).
As Vice President of Finance, Genco was responsible for
monthly
financial
reports,
drafting
budgets,
keeping
and
protecting financial information, accounts payable, payroll, and
training the employees she supervised. (Genco Dep. at #327); (Doc.
39-2, Genco Resume at #410).
Genco oversaw three employees in the YWCA Finance Department:
Fateema El-Mansouri in payroll and grant billing; James Allison in
accounting; and Rena Gibeau, the finance specialist.
at #367-69).
(Genco Dep.
Fateema was hired in late June 2015, James in mid-
August, and Rena in mid-December.
(Id. at #328).
By the time
Rena became Finance Specialist in 2015, Genco still considered all
three to be untrained.
#500).
(Id. at #375:23); (Doc. 39-2, Ex. 15,
Genco testified that an employee was "untrained" if they
still required Genco's help to complete their assigned duties.
(Genco Dep. at #376:3).
As VP of Finance, Genco reported directly to the CEO of YWCA.
Charlene Ventura (“Ventura”) was CEO until 2015.
In June 2015,
Ventura retired and Barbara Perez ("Perez") became the CEO of YWCA.
Perez
had
over
organizations.
30
years’
experience
leading
non-profit
(Doc. 39-2, Perez Aff., #242).
Soon after she became CEO, Perez noticed that Genco missed
deadlines and failed to meet "clear performance standards." (Id.
at ¶11).
One of the first major assignments Perez gave Genco was
to ensure that YWCA's call counting software — called a "call
counter" — remained functional. (Doc. 39-2, Exh. 7 and 8, Emails,
#478-81).
As its name suggests, the call counter keeps track of
2
all
incoming
calls,
sources of funding.
presumably
regarding
donations
(Doc. 39-1, Genco Dep. #347-48).
and
other
According
to Perez, YWCA's funding relied on the continued operation of the
call counter.
(Doc. 39-2, Exh. 8 #478).
In emails sent on
September 30, 2015, Perez stated that she had been waiting for a
solution to the call counter problem for "over a month" and that
the
situation
Jennifer
was
Sitler,
“unacceptable.”
expressed
(Id.)
concern
that
Another
further
employee,
delay
could
jeopardize vital organizational information. (Id. at #479). Genco
stated that she had been working on a solution to this problem.
(Id. at #480). The phone system was eventually replaced sometime
after October 4.
(Doc. 39-1, Genco Dep. at #349).
On October 18, 2015, Genco was injured from a fall while out
with her family at a restaurant.
(Doc. 39-1, Genco Dep. at #480);
(Doc. 39-2, Ex. 9: Email at #483).
She required several stitches,
was swollen on some areas of her face, and she broke her glasses.
(Ex. 9: Email at #483).
Genco stayed home to recover. (Doc. 39-
2, Ex. 10: Email #484, 486).
Through correspondence, Perez urged
Genco to take the time she needed, to get rest, and to seek further
medical attention if necessary.
(Id. at #484-85).
Perez told
Genco that "James and the team" had current tasks under control,
such as the budget and monthly financials.
10 at #482, 485).
(Doc 39-2, Ex. 9 and
Genco was later absent on November 10 to recover
from headaches and cold chills.
(Doc. 39-2, Ex. 11: Email, #487).
3
On November 30, 2015, Jessica Mays (“Mays”), a member of
YWCA's Finance Board, requested a list of things that Genco did
during the month and a procedural checklist of activities done
during the "close process."
#491).
(Doc. 39-2, Ex. 12: Email #488, at
Perez was copied on the email.
(Id.)
On December 7, Genco
responded to Mays stating that the lists were not relevant to
internal controls and that Genco would not have time to meet with
Mays to go over the lists.
(Id. at #489).
Genco give Mays the requested lists.
Perez insisted that
(Id.)
Perez stated that
since Genco had known about this meeting for over a month but
postponed
the
meeting
twice,
Genco's
unacceptable and unprofessional.
(Id.)
response
to
Mays
was
In a lengthy email, Genco
stated that she was overwhelmed by other deadlines and had done
all that she could do.
(Id. at 488).
Genco then provided the
lists to Mays when they met later that day.
(Genco Dep. at
#365:13).
The same day, Perez denied Genco's reimbursement request for
Genco's weekend commute and part of Genco's cell phone bill.
(Genco Dep. at #319:6-10).
Perez did this by giving Genco a
ripped-up reimbursement check. (Id.) Genco stated she was shocked
by this.
(Genco Dep. at #319:14).
Perez stated that she simply
did not want to encourage weekend work.
Invest. Report #237, 241).
4
(Doc. 39-2, Dunham Aff.,
On December 11, 2015, Perez directed Genco to provide James
with a system administrator password to permit James to work with
IT staff.
(Doc. 39-2, Ex. 13: Email at #492-93).
Genco objected
to the request, stating that this was not done in the past.
at #493).
(Id.
She expressed concern about the integrity of the
information in the network by giving James, a relatively recent
hire, access to the system.
(Id.); (Genco Dep. at #370:12-25).
When Genco asked the VP of Human Resources, Martha Wolf, for her
opinion about the password issue, Wolf told Genco that Genco may
be "overthinking" the matter.
(Ex.13: Email at #492).
On December 15, Perez asked Genco if she would be prepared
for a Financial Board meeting to go over the October and November
financials.
(39-2, Ex.15: Emails, #499, 502).
Genco stated that
she was unable to finish either by the meeting time.
02).
(Id. at #501-
Genco also asked to skip the October financial report and
create an overview of October instead so that Finance could "catch
up," stating this was acceptable "in the past."
On December 16, Perez granted that request.
(Id. at #502).
(Id. at #501).
In
response, Genco stated that November financials would again take
longer than anticipated.
(Id. at #500).
Genco cited recent staff
shortages and an overwhelming workload as the reason for the delay.
(Id. at #499).
By
December
15,
2015,
Rena
Financial Specialist under Genco.
5
Gibeau
was
hired
as
YWCA's
(Genco Dep. at #375).
Perez
asked Genco to make staff training a priority given that all
Finance positions had been filled.
(39-2, Ex.17: Email, #505).
At that time, Fateema had been with YWCA for six months without
full training.
(Id.); (Genco Dep. at #379:16).
On December 15, 2015, Genco requested to take off several
days at the end of the month.
04).
(Doc. 39-2, Ex. 16: Email, #503-
Perez denied this request.
(Id. at 503).
Perez responded
that Genco needed to correct a timesheet from November which did
not reflect the use of vacation days for days Genco did not work.
(Id.)
Perez conditioned the rollover of Genco's accrued vacation
days into 2016 on the correction of Genco's timesheet.
(Id.)
Genco was asked to work but was told that her unused vacation days
could roll over into 2016.
On December 30, 2015, Genco sent Nancy Lawson, Board Chair,
a complaint about Perez in the form of an extensive packet of
various materials, apparently pursuant to YWCA's "Whistleblower
Policy."
(Doc. 39-2, Ex. 19, #538).
These materials included,
among other things, a lengthy chronological narrative criticizing
Perez, a copy of YWCA's Whistleblower Policy, email correspondence
between Genco and Perez, Genco's timesheets, and the shredded
reimbursement check.
(Id. at #523-37, 538, 564-91, 540-63, 593).
The Whistleblower Policy is a mechanism by which YWCA employees
report financial and managerial impropriety within the YWCA.
at #538).
6
(Id.
On January 12th, 2016, the Director of HR Solutions at
Strategic HR Solutions, Inc., Patti Dunham, began an investigation
into Genco's complaint packet.
(Doc. 38-1, Invest. Report, #240).
Dunham found that Genco's criticism essentially alleged a lack of
internal
controls,
"harassment"
unmonitored spending by Perez.
by
the
CEO,
and
excessive,
(Id.) Dunham's report stated that
none of these complaints were valid. (Id.)
Specifically, Dunham found Genco's accusations against Perez
for lack of internal controls and excessive spending not to be
well founded.
(Invest. Report at #240).
She also concluded that
James' administrative access to sensitive information was normal
for such organizations. (Id.) Dunham also concluded that spending
was also amply monitored and reported to the Financial Board.
(Id.)
She found that Perez's alleged harassment amounted to
occasional displays of "curt," perhaps "unprofessional," behavior
at most.
(Id.)
However, Dunham stated that Perez’s demands that
Genco meet deadlines and Perez’s expressions of dissatisfaction
with Genco's performance did not constitute harassment.
(Id. at
#240-41). Finally, Dunham concluded that Perez’s denial of Genco's
reimbursement did not single out Genco because James, who was
younger than Genco, had been denied a similar request. This denial
did not violate YWCA policy, which Genco later admitted.
#241)
7
(Id. at
Dunham concluded the investigation report by recommending
that the YWCA continue to pursue Genco's termination, which Perez
testified she had been considering since a few weeks after becoming
CEO. (Id.) There was no mention by any party of age discrimination
throughout the investigation.
(Id.)
On January 22, 2016, Perez told Genco not to talk to her when
Genco approached Perez in a faculty kitchen.
Email at #627).
(Id.)
(Doc. 39-2, Ex.23:
Perez raised her hand dismissively and left.
Genco could not say, despite being offended by Perez, that
Perez had raised her voice.
(Genco Dep. at #406:7).
sent Perez an apologetic email.
Genco later
(Ex.23: Email at #627).
In that
email, Genco stated that there would be further delay for the
preliminary
December
financials,
and
she
requested
a
fourth
postponement of a Board meeting concerning internal review.
(Id.)
Perez responded that Genco had known about the meeting for several
months and that if the tasks were not completed by the deadline
that Perez would "take it from there."
(Id. at #626).
Genco
forwarded this message to Lawson stating: "Sounds ominous and
threatening."
(Id.)
On February 15, 2016, Lawson and Perez terminated Genco’e
employment during an official meeting.
396:17).
attorney
(Genco Dep. at #394:24-
Genco testified that she heard Lawson state to her
at
this
meeting
that
Genco's
termination
officially pursued since December 30, 2015.
8
had
been
(Id at #394:15-18).
Genco was replaced by Jessica Mays.
#243 ¶17).
(Doc. 39-2, Perez Inter. at
Mays was formerly on the Board Finance Committee and
was a former CPA with Deloitte & Touche.
20 years younger than Genco.
Mays was approximately
(Doc. 39-2, Ex.2: Genco Inter. # 412
¶1).
Genco filed this lawsuit on August 5, 2016, originally in the
Eastern District of Kentucky at Covington.
(Doc. 1).
The case
was subsequently transferred to this Court pursuant to 28 U.S.C.
§ 1404(a).
Genco
emotional
(Doc. 23).
alleges
claims
distress;
(2)
for
(1)
wrongful
intentional
infliction
termination;
discrimination; and (4) fraudulent misrepresentation.
(3)
of
age
(Doc. 1).
Analysis1
A.
Intentional Infliction of Emotional Distress
To succeed on her claim of intentional infliction of emotional
distress, Genco must prove:
(1)
that YWCA/Perez either intended to cause emotional
distress or knew or should have known that their
actions would result in serious emotional distress
to Genco;
(2)
that YWCA/Perez's conduct was so extreme and
outrageous as to go beyond all possible bounds of
decency and was such that it can be considered as
utterly intolerable in a civilized community;
1
The Court notes that plaintiff’s memorandum in opposition to
defendant’s motion for summary judgment contains no citations to
the record herein, but merely cites to her Complaint. (Doc.
43).
9
(3) that YWCA/Perez's actions were the proximate cause
of Genco's psychic injury; and
(4) that the mental anguish suffered is serious and of
a nature that no reasonable person could be
expected to endure it.
Ashcroft v. Mt. Sinai Medical Ctr., 588 N.E.2d 280, 284 (Ohio
1990).
1. Perez did not have an intention, knowledge, or reason to
believe that Genco would suffer serious emotional
damage.
Genco argues that being "forced" to work 1,500 hours
overtime and postpone vacation, being "ridiculed" for not
completing her assigned duties, and the "expectation that
[Genco] work" after her accident collectively demonstrate an
intent to cause serious emotional anguish.
However, the
record contains no evidence that Perez intended to cause Genco
serious emotional trauma.
Genco’s allegation of intent,
without more, is insufficient to raise a triable issue.
2. Perez’s behavior was not extreme of outrageous.
The extremity element refers to extreme and outrageous
conduct
which
intolerable
and
a
civilized
that
causes
society
serious
considers
psychic
utterly
injury.
See
Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen
& Helpers of America, 453 N.E.2d 666, 671 (1983) (quoting
RESTATEMENT (SECOND) OF TORTS § 46 (1965)), abrogated on other
grounds by Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007).
10
This is a high standard to meet.
See Baab v. AMR Services
Corp., 811 F. Supp. 1246, 1269. (N.D. Ohio 1993) ("[T]o say
that Ohio courts narrowly define 'extreme and outrageous'
conduct would be something of an understatement.").
Even if
based upon discrimination, an employee's termination does not
rise
to
the
level
of
"extreme
and
outrageous
conduct."
Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 376 (6th Cir.
1999) (applying Ohio law).
Genco's response characterizes Genco's relationship with
Perez
as
one
harassment.
involving
"forced"
labor,
humiliation,
and
However, the record contains no evidence that
Genco was compelled against her will to work longer hours or
to work while she was trying to recover from her accident.
To the contrary, Perez had a policy against employees working
on the weekends, and she stated multiple times that Genco
should take the time she needed to heal.
The record is similarly devoid of evidence of harassment
or intentional humiliation. As Patti Dunham, the HR Solutions
investigator stated in her report, Perez's actions could be
described as curt at times and at other times potentially
"unprofessional."
These include when Perez ordered Genco to
complete a task for Jessica Mays with Mays copied in the
email, Perez rolling her eyes at Genco's inability to operate
a conference phone in front of other employees, and when Perez
11
dismissed Genco in the employee kitchen.
These actions fall
far below the standard necessary for this tort.
3. Genco's sleeplessness and chest pains do not indicate
that she experienced "serious" emotional distress.
In order to establish "serious" or "severe" emotional
distress, a plaintiff must show that a "reasonable person,
normally constituted, would be unable to cope adequately with
the mental distress generated by the circumstances of the
case.
Godfredson, 173 F.3d at 376 (citing
Reynolds v.
Wingers, Inc., 621 N.E.2d 1239, 1243 (Ohio 1993)).
In Godfredson, the plaintiff complained of an upset
stomach, loss of sleep, and financial concern. Id. The Sixth
Circuit concluded that such symptoms do not rise to the level
of seriousness or severity required under Ohio law.
Id.
There must be more than mere hurt feelings, embarrassment, or
anxiety concerning financial stability.
See id.
Here, Genco stated that she experienced sleeplessness,
chest
pains,
psychiatric
and
humiliation.
testimony
that
severity of these conditions.
There
is
no
medical
verifies
or
quantifies
or
the
There is no record evidence
that Perez's actions toward Genco caused her chest pain and
sleeplessness.
to
be
both
Still, even if these conditions are assumed
real
and
unpleasant,
12
nothing
in
the
record
demonstrates
that
Genco's
conditions
were
unendurably
serious.
For all these reasons, defendant is entitled to summary
judgment on Genco’s emotional distress claim.
B.
Wrongful Termination
That Genco was an at-will employee of YWCA is not in dispute.
That Ohio is an at-will employment state is not in dispute.
Both
parties thus had the right to end the employment relationship at
any time and for any reason.
Wright v. Honda of Am. Mfg., Inc.,
653 N.E.2d 381, 384 (Ohio 1995).
However, Genco claims that she
is protected by Ohio law from retaliatory termination under the
public policy exception to the at-will employment doctrine.
This claim fails for two reasons: (1) Genco failed to state
the public policy that her termination jeopardized, and (2) even
assuming that Genco is relying on Ohio’s whistleblower statute,
Perez did not violate any law that Genco could have reported.
In Kulch v. Structural Fibers, Inc., 677 N.E.2d 308 (Ohio
1997), the Supreme Court of Ohio recognized a public policy
exception to the at-will employment doctrine.
The exception
requires these elements:
(1)
that a clear public policy existed and was
manifested
in
the
Ohio
State
or
Federal
Constitution,
statute,
or
administrative
regulation, or in the common law;
(2)
that dismissing Genco would jeopardize the public
policy;
13
(3)
Genco's dismissal was motivated by conduct related
to the public policy; and
(4)
YWCA
lacked
overriding
legitimate
justification for the termination.
business
Id. at 321. Simply, an at-will employee-plaintiff may be protected
from termination if their termination jeopardizes a clear public
policy and there are no overriding legitimate reasons to justify
termination.
Id.
On summary judgment, the first two elements are
questions of law to be determined by the court, and the last two
elements are reserved for the trier-of-fact.
Id. at 321 (citing
Collins v. Riskana, 652 N.E.2d 653, 658 (Ohio 1995)).
To invoke
this statute, one must strictly comply with the dictates of R.C.
4113.52. See Contreras v. Farro Corp., 652 N.E.2d 940, 944 (Ohio
1995).
1.
Clear Public Policy
Genco has not stated a public policy that her termination
violates.
Genco alleges that her treatment and termination by
YWCA were in retaliation for Genco's complaint to Nancy Lawson on
December 29, 2015.
pursuant
to
YWCA's
Genco sent the complaint packet to Lawson
whistleblower
policy,
but
Genco
must
demonstrate that she was reporting a clear violation of state or
federal law in that complaint.
The record contains no evidence
that Genco was reporting any such violation. Construing the matter
14
liberally, it may be inferred that Genco is invoking Ohio's
whistleblower statute.
The Ohio "whistleblower" statute states that if an employee
becomes aware of a violation of public policy that the employer
has the authority to correct, and the employee reasonably believes
that the violation is an imminently dangerous criminal offense, a
felony, or improper solicitation for contribution, the employee
should notify the employee's supervisor of the violation.
R.C. 4113.52(A)(1)(a).
See
Employers are prohibited from taking any
disciplinary or retaliatory action against the employee for making
such a report.
2.
See R.C. 4113.52(B)(1), et seq.
Jeopardization of Public Policy
After identifying a clear public policy, the plaintiff must
state or demonstrate how that public policy was violated by their
termination.
Perez
Genco has not done this.
committed
any
criminal
solicitation for contribution.
There is no evidence that
offense,
a
felony,
or
improper
In her complaint to Lawson, Genco
merely complained that Perez was disrespectful to her, that Perez
didn't
include
Genco
judgment was flawed.
in
certain
decisions,
and
that
Perez's
Perez complained of no violation of law.
Therefore, the Ohio whistle-blower statute cannot be grounds for
Genco's common-law claim because there is no evidence that Genco
was reporting any violations enumerated in R.C. 4113.52(A)(1)(a).
15
Genco’s wrongful termination claim thus fails as a matter of
law.2
C.
Age Discrimination
Genco also has produced no evidence that she was discriminated
against because of her age.
Genco did not file a complaint with the Equal Employment
Opportunity Commission. The ADEA requires plaintiffs to exhaust
such administrative remedies before seeking judicial remedies.
Since
Genco
did
not
file
a
claim
with
the
EEOC,
the
age
discrimination claim is reviewed under Ohio law.
Under Ohio law, it is unlawful to discriminate against an
individual in employment "because of . . . age."
Ann. § 4112.02 (West 2017).
623.
Ohio Rev. Code
This Ohio code mirrors ADEA Section
See 29 U.S.C.A. 623 (West); Blizzard v. Marion Technical
College, 698 F.3d 275, 283 (6th Cir.2009) ("Age discrimination
claims brought under the Ohio statute are analyzed under the same
standards as federal claims brought under the [ADEA].").
Ohio
courts look to federal case law under the ADEA for guidance.
Clark
v. City of Dublin, Ohio, 178 F. App'x 522, 525 (6th Cir. 2006)
(citing Bucher v. Sibcy Cline, Inc., 738 N.E.2d 435, 442 (Ohio
2000)).
2
Genco makes a brief assertion of promissory estoppel in her
response to defendant’s motion for summary judgment, but no such
claim was raised in the complaint.
The Court thus will not
consider that claim.
16
As here, where an age discrimination claim is supported by
circumstantial evidence, the claim is analyzed under the McDonnell
Douglas framework.
Ercegovich v. Goodyear Tire & Rubber Co., 154
F.3d 344, 350 (6th Cir.1998) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)).
A plaintiff must establish a prima
facie case by demonstrating: (1) membership in a protected class;
(2) adverse employment action; (3) the plaintiff was qualified for
the position; and (4) replacement by a substantially younger
employee.
Allen v. Highlands Hosp. Corp., 545 F.3d 387, 394 (6th
Cir. 2008).
At
the
prima
facie
stage,
a
court
should
focus
on
a
plaintiff's objective qualifications to determine whether he or
she is qualified.
Wexler v. White's Fine Furniture, Inc., 317
F.3d 564, 575 (6th Cir. 2003). "[T]he inquiry should focus on
criteria such as the plaintiff's education, experience in the
relevant industry, and demonstrated possession of the required
general skills," rather than an employer’s subjective expectations
of an employee’s performance.
Id.
If the plaintiff is able to establish a prima facie case, the
burden
shifts
to
the
defendant
to
state
discriminatory reason for the adverse action.
a
legitimate,
non-
Id.
A plaintiff must then raise a triable issue as to whether the
defendant's reason for her termination is pretextual by showing
that the reason: (1) had no basis in fact; (2) did not actually
17
motivate the termination; or (3) was insufficient to warrant her
dismissal.
Seger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274,
285 (6th Cir. 2012).
In doing so, a plaintiff may demonstrate a
dispute of fact as to pretext if she can demonstrate that she was
significantly more qualified than their replacement.
Bender v.
Hecht's Dept. Stores, 455 F.3d 612, 627 (6th Cir. 2006).
However,
there must also be other evidence of discrimination besides a
disparity in qualifications.
Id. at 626.
Genco was over forty years old and was terminated.
further
assumes
position.
that
she
was
objectively
See Wexler, 317 F.3d at 575.
Mays, a substantially younger person.
The Court
qualified
for
her
She was also replaced by
Genco has thus established
a prima facie case.
Next,
the
defendant
must
state
a
legitimate,
non-
discriminatory reason for the adverse employment decision.
Here,
Defendant states that Genco was terminated because she repeatedly
failed to meet deadlines, did not train her reports, appeared to
stonewall
and
resist
directives
from
Perez,
and
on
multiple
occasions went above Perez's head to complain to Ms. Lawson.
Thus, Genco must demonstrate that the YWCA's reasons are
pretextual.
Here, her age-discrimination claim fails.
Genco
acknowledges that she failed to fully train her reports and
consistently failed to meet deadlines.
While Genco offers various
reasons why she failed to meet deadlines, the record simply
18
contains no evidence that Genco's termination was motivated by
reasons other than those given by YWCA.
Genco has thus failed to carry the burden of demonstrating a
triable issue of pretext.
D.
Fraudulent Misrepresentation
As the basis for her fraudulent misrepresentation claim,
Genco alleges that Perez told Genco in mid-December 2015 to work
instead of taking time off for the holiday, and she told Genco
that she could use her vacation days at a later time.
In
Ohio,
common-law
fraud
requires
the
showing
of
elements:
(1) a representation or, where there is a duty to
disclose, concealment of a fact;
(2) which is material to the transaction at hand;
(3) made falsely, with knowledge of its falsity, or with
such utter disregard and recklessness as to whether it
is true or false that knowledge may be inferred;
(4) with the intent of misleading another into relying
upon it;
(5) justifiable reliance upon the representation or
concealment; and
(6) a resulting injury proximately caused by the
reliance.
Russ v. TRW, Inc., 570 N.E.2d 1076, 1083 (Ohio 1991).
Fraudulent misrepresentation can only concern facts of
the present and past. Lucarell v. Nationwide Mut. Ins. Co.,
97 N.E.3d 458, 472–73 (Ohio 2018).
The parties dispute whether an alleged representation of
Genco's future use of vacation days is a representation made
19
six
about a future fact.
Relying on Metz v. America Electric
Power Company, Inc., 877 N.E.2d 316 (Ohio Ct. App. 2007),
YWCA states that there was no fraudulent misrepresentation
made, because even if there was a representation that Perez
would honor Genco's roll-over vacation days in 2016, that
representation concerned a future event.
In Metz, former executive employees of an energy trading
company were told that the company was about to enjoy the
second-best
year
the
company
had
yet
seen
based
on
unsubstantiated information.
The company did not do well
that
received
year
and
the
employees
substantially
less
compensation than their employer represented they would.
The
court held that even this express statement about future
benefits of employment failed to create an actionable claim
of fraudulent misrepresentation because it amounted to a
prediction of the future, at most.
Genco
argues
misrepresentation
that
pertained
the
to
a
Metz, 877 N.E.2d at 329.
alleged
present
state
fraudulent
of
facts
because Perez had already resolved to terminate Genco when
she "guaranteed" Perez would be able to use vacation days.
However, considering the nature of at-will employment and an
absence of any express promise of future employment, there
was at no point a representation, true or false, that Genco
would be employed in 2016.
20
Finally, the use of vacation days was part of a policy
in the YWCA employee manual.
As Genco concedes, all of the
terms in the manual were subject to change by the YWCA at any
time.
There was no contractual obligation to honor or even
approve the roll-over or use of vacation days.
For these reasons, Genco’s fraudulent misrepresentation
claim fails as a matter of law.
Therefore, having reviewed this matter, and the Court
being advised,
IT
IS
ORDERED
that
defendant’s
motion
judgment (Doc. 38) be, and is hereby, GRANTED.
judgment shall enter concurrently herewith.
This 22nd day of August, 2018.
21
for
summary
A separate
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