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Morrissette v. DFS Services, LLC

Court of Appeals of Ohio, Tenth District

September 30, 2013

Julien R. Morrissette, Plaintiff-Appellant,
v.
DFS Services, LLC et al., Defendants-Appellees.

APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 09CVC-10-16281

Eugene L. Matan LLC, and Eugene L. Matan, for appellant.

Ulmer & Berne LLP, William D. Edwards, and Paul R. Harris, for appellees.

DECISION

BROWN, J.

(¶ 1} This is an appeal by plaintiff-appellant, Julien R. Morrissette, from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, DFS Services, LLC ("DFS"), and Vicki Stokes.

(¶ 2} Appellant was hired by DFS in 1988 as a collection specialist in the company's recovery department. DFS requires that its employees review and agree to abide by the company's Code of Conduct. Tracey Davis was hired by DFS in 2007 to work as a senior collection specialist, and her office work area was in close proximity to appellant's work area.

(¶ 3} On June 26, 2008, DFS received a letter from Rayl Stepter, an attorney representing Davis, in which Stepter alleged that "[s]ince February 2008 [Davis] has been racially harassed by co-worker, Juli[e]n Morris[s]ette." It was alleged that the harassment included appellant making "racial remarks" to Davis, as well as hanging a noose in his work area in plain view of Davis and making statements about the noose involving the "KKK" and "Emmett Till."

(¶ 4} On June 27, 2008, appellee Vicki Stokes (individually "Stokes"), a human resources manager with DFS, informed appellant that he was being placed on paid administrative leave pending the outcome of an investigation. On that date, Stokes asked appellant if he wanted any personal items from his desk brought to the personnel area. Appellant remarked that he wanted his briefcase, a thermos bottle and his "gun."

(¶ 5} DFS subsequently conducted an investigation regarding the claims made by Davis. During the investigation, appellant was questioned about a noose he had placed in his work area. On August 1, 2008, DFS made a decision to terminate appellant from his employment with DFS. In a memorandum prepared by Larry Lowry, a DFS department manager, Lowry recommended terminating appellant on the following grounds:

In accordance with Company policy, Mr. Morrissette was placed on a paid administrative leave pending the investigation. Before placing Mr. Morrissette on leave, he was asked if he needed any personal items from his work area. In front of his manager and the Human Resources manager, Mr. Morrissette inappropriately responded that he needed his "briefcase, coffee cup, glasses and my gun (laughing)." In making this comment, Mr. Morrissette demonstrated a clear lack of judgment and an inability to distinguish between inappropriate and appropriate conduct in the work place. This is a violation of the Company's Code of Conduct.
During the investigation, Mr. Morrissette admitted that he regularly initiated inappropriate conversations about race, religion and politics in the workplace. This is a violation of the Company's Code of Conduct.
During the investigation it was revealed that Mr. Morrissette displayed a small rope tied like a "noose" in his cubicle. This is a violation of the Company's Code of Conduct.

(Emphasis sic.)

(¶ 6} In November 2008, appellant filed a complaint against DFS, alleging claims for age discrimination, breach of contract, promissory estoppel, and wrongful termination in violation of public policy. In February 2009, the trial court dismissed, by agreed order, the claim for termination of employment in violation of public policy. On September 30, 2009, DFS filed a motion for summary judgment. On October 8, 2009, appellant voluntarily dismissed the complaint without prejudice pursuant to Civ.R. 41(A)(1)(a).

(¶ 7} On October 30, 2009, appellant re-filed the complaint against DFS, adding Stokes as a defendant. In the complaint, appellant alleged that DFS had wrongfully accused him of using racially derogatory and improper language toward an African-American co-worker. It was further alleged that Stokes, the human resources manager for DFS and an African-American, unlawfully considered appellant's race (Caucasian) in deciding to terminate his employment. The complaint, which alleged that appellant was age 56 at the time of his termination, asserted causes of action for age discrimination and reverse race discrimination.

(¶ 8} On December 23, 2009, DFS and Stokes (collectively "appellees") filed a motion to dismiss pursuant to Civ.R. 12(B)(6). On January 11, 2010, appellant filed a memorandum contra the motion to dismiss. By decision and entry filed June 10, 2010, the trial court granted appellees' motion to dismiss.

(¶ 9} Appellant filed a notice of appeal from the trial court's entry of dismissal. In Morrissette v. DFS Servs., LLC, 10th Dist. No. 10AP-633, 2011-Ohio-2369, this court affirmed in part and reversed in part the judgment of the trial court. Specifically, this court held that appellant alleged sufficient facts to put appellees on notice that he was asserting an age discrimination case, and thus the trial court erred in dismissing his age discrimination claim. However, this court concluded that appellant failed to plead sufficient operative facts to put appellees on notice that he was bringing a reverse race discrimination claim.

(¶ 10} Following remand, appellees filed a motion for summary judgment on May 7, 2012. Appellant filed a memorandum in opposition to appellees' motion for summary judgment on May 29, 2012. By decision filed June 12, 2012, the trial court granted appellees' motion for summary judgment. The decision of the trial court was journalized by judgment entry filed July 11, 2012.

(¶ 11} On appeal, appellant sets forth the following three assignments of error for this ...


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