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Davis v. Cable

Court of Appeals of Ohio, Second District, Montgomery

March 31, 2017

ANTHONY DAVIS Plaintiff-Appellant
v.
TIME WARNER CABLE Defendant-Appellee

         Civil Appeal from Common Pleas Court, T.C. NO. 15CV2948

          ANTHONY DAVIS, Plaintiff-Appellant

          VINCENT NORWILLO, Atty. Attorney for Defendant-Appellee

          OPINION

          DONOVAN, J.

         {¶ 1} This matter is before the Court on the pro se Notice of Appeal of Anthony Davis, filed April 7, 2016. Davis appeals from the March 9, 2016 Decision of the trial court adopting the Magistrate's decision on Time Warner Cable's ("TWC") Motion for Summary Judgment. For the reasons that follow, and in the absence of a final appealable order, the instant appeal will be dismissed.

         {¶ 2} Davis filed a pro se Complaint against TWC on June 5, 2015, that provides as follows:

I was discriminated against and wrongfully fired. I was wrongfully fired for attendance. I was under a written contract with HR and security witch [sic] explained that Angela Kemp was falsifying my records, discriminating against me for being white and good at my job. HR fired me for the falsified time records entered by Angela Kemp then fired Angela Kemp for falsifying my time records.

         {¶ 3} TWC answered the Complaint on July 8, 2015. On July 12, 2015, the trial court issued an "Order of Referral to Magistrate." On September 25, 2015, the matter was referred to mediation. On October 20, 2015, Davis filed a request for a jury, which the Magistrate overruled on October 23, 2015, noting that pursuant to Civ.R. 38(B), a jury demand must be served "at any time after the commencement of the action and not later than fourteen days after the service of the last pleading directed to such issue, " and that failure to comply with the rule constitutes waiver. The Magistrate further noted that the last pleading was TWC's Answer, filed July 8, 2015. The Magistrate concluded that Davis' request was untimely.

         {¶ 4} After TWC filed a request for an extension of the summary judgment deadline, Davis, on November 5, 2015, filed an "Objection to Motion for summary decision, " a document entitled "Witness, " and nine pages entitled "Exhibits filed by: Anthony Davis." On November 12, 2015, mediation was terminated. On November 13, 2015, Davis filed a 28 page document captioned "Exhibits, " and a "Notice of delivery of court documents." On November 17, 2015, the trial court adopted the Magistrate's decision which denied the request for a jury, noting that no objections were filed and concluding, "Plaintiffs Motion for Jury demand is untimely and therefore DENIED."

         {¶ 5} TWC filed its motion for summary judgment on November 25, 2015. Therein TWC listed Davis' discipline history for attendance violations. TWC described its investigation into Davis' allegations of attendance records falsification. TWC asserted as follows:

Mr. Davis' Complaint fails as a matter of law. * * * Specifically, Plaintiff fails to allege in his Complaint that he is a member of a protected class. He fails to allege that he was qualified for the position. The overwhelming evidence is that throughout his career he continually violated TWC's attendance policy. The allegation regarding falsification is not only unsupported, but moreover completely controverted by the investigation of Deidra Bartlett and the attached time card entries which unequivocally and irrefutably found no falsification occurred. Plaintiff's claim further fails because he is unable to allege or produce any evidence that any individual who engaged in a similar pattern of attendance infractions and kept their job [sic]. Accordingly, Plaintiff's prima facie case fails.

         {¶ 6} TWC asserted that even if Davis could establish a prima facie case of discrimination, TWC can articulate a legitimate, nondiscriminatory reason for Davis' termination, namely his "numerous, continued and escalating attendance infractions, " which constituted "legitimate, nondiscriminatory business reasons for its termination decision." Finally, TWC asserted that Davis cannot establish that its articulated reasons are pretextual, since Davis' "signature appears on each and every discipline document up until his termination." TWC attached its Employee Handbook, multiple documents reflecting Davis' attendance infractions, and the Affidavit of Deirdra Bartlett, a Human Resources representative at TWC. TWC also filed a Motion for Judgment on the Pleadings on November 25, 2015.

         {¶ 7} On December 11, 2015, Davis filed a multi-page document captioned "Exhibits Proving allegations." On December 15, 2015, Davis filed a document captioned "Opposition to motion of summary judgment, " and three days later he filed a "Request for Remedies, " and a "Responce [sic] to hear or see case." On December 22, 2015, TWC filed a "Motion to Strike Plaintiff's Request for Remedies." On December 28, 2015, Davis filed an "Opposition to motion for judgment on the pleadings." On the same date, TWC filed "Defendant's Motion to Strike Plaintiff's Response (sic) to Hear or See Case." On December 30, 2015, "Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Judgment on the Pleadings" was filed.

         {¶ 8} On February 22, 2016, the Magistrate's decision was filed. According to the Magistrate, "[f]or the most part, Defendant's Motion for Summary Judgment accurately reflects Plaintiff's disciplinary record before the Court as Defendant's Motion for Summary Judgment Exhibits (B) through (Q)." The Magistrate noted that where "Defendant's Motion for Summary Judgment differs from the attached documentation, the undersigned Magistrate finds that the data in the documentation, rather than the data in the Motion, is correct." The Magistrate listed 15 instances, beginning December 5, 2008 to May 18, 2013, establishing Davis violated TWC's attendance policy. The Magistrate concluded that the "overwhelming evidence * * * is that Plaintiff received 8.5 attendance occurrences before he received his final occurrence on May 18, 2013." The Magistrate found that "the May 18, 2013 attendance occurrence led to Plaintiffs termination on June 7, 2013."

         {¶ 9} The Magistrate noted that Davis asserted a claim for intentional infliction of emotional distress in his response to the motion for summary judgment, not in his complaint.

         {¶ 10} The Magistrate reviewed the relevant law on at-will employment, racial discrimination under R.C. 4112.02, mixed-motive employment discrimination, retaliation under R.C. 4112.02, intentional infliction of emotional distress, and summary judgment analysis. The Magistrate concluded that TWC satisfied its initial summary judgment burden, and that Davis failed to demonstrate genuine issues of material fact, noting that in his "plethora of filings, there are no affidavits or sworn or certified copies of papers."

         {¶ 11} The Magistrate found as follows ...


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