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Kassay v. Niederst Management, Ltd.

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 24, 2018


          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-834274

          ATTORNEYS FOR APPELLANTS Kyle A. Hutnick Justine L. Konicki Jon J. Pinney Kohrman Jackson & Krantz, L.L.P.

          ATTORNEYS FOR APPELLEE Brian D. Spitz Christopher P. Wido Spitz Law Firm.

          For Denise Pacak Robert S. Gilmore Sean P. Malone Kohrman Jackson & Krantz, L.L.P.

          BEFORE: Boyle, J., Stewart, P.J., and Celebrezze, J.


          MARY J. BOYLE, J.

         {¶1} Defendant-appellant, Niederst Management, Ltd. ("Niederst"), appeals from the trial court's denial of its motion for judgment notwithstanding the verdict, remittitur, or for a new trial. It raises one assignment of error for our review:

[T]he trial court erred by denying Niederst Management, LTD's motion for a new trial, or alternatively a remittitur or judgment notwithstanding the verdict given the improper argument by Mr. Kassay's counsel, the jury's excessive damages awards, and the absence of legally sufficient evidence to support the jury's damage awards.

         {¶2} Finding no merit to the assignment of error, we affirm.

         Procedural History and Factual Background

         {¶3} On October 15, 2014, Kassay filed a complaint against Niederst, Lisa Weth, and Denise Pacak alleging wrongful termination based on disability discrimination, failure to provide reasonable accommodation, unlawful retaliation in violation of R.C. 4112.02(I), and intentional infliction of emotional distress.[1] The case proceeded to a jury trial where the following evidence was presented.

         {¶4} Niederst is a property management company that owns a number of apartment buildings. As part of its property management business, Niederst hired and trained individuals as pest-control technicians to exterminate bed bugs in its buildings. Pest-control technicians are responsible for lifting heavy equipment, including fans (35 lbs.), power cords (75 lbs.), and furnaces (240 lbs.). Two technicians are required to move each furnace. When exterminating bed bugs in apartments on higher floors of Niederst's buildings that do not have elevators, technicians are required to carry the furnaces up the stairs.

         {¶5} Niederst had a high turnover rate for its technicians. Additionally, a number of technicians that Niederst hired had disciplinary issues, including tardiness and absenteeism, damaging or losing company property, and trespassing.

         {¶6} In August 2012, Niederst hired Kassay as a pest-control technician. According to Kassay's supervisor, Lisa Weth, Kassay was a good employee and had no performance issues. On October 24, 2013, Kassay showed up to work wearing a brace on his left wrist. According to Kassay, he had worn the brace to work on occasions because he suffered from a chronic wrist disability that was the result of an injury he suffered at a previous job for another company. One of Kassay's coworkers told Weth that Kassay was wearing a brace to work. Weth met with Kassay and informed him that she would have to speak to the human resources department about his brace because she was concerned that his injury may put him or others in danger while carrying the heavy equipment.

         {¶7} Weth informed Kassay that based on instructions from the human resources department's director, Pacak, he would have to complete Family and Medical Leave Act ("FMLA") paperwork and be able to work without "any limitations." Weth told Kassay that she was not sure why he needed to fill out FMLA paperwork because she believed that it did not pertain to him. As a result, she told him that if he had any questions or concerns to speak with Pacak. According to Weth, she expected Kassay to complete and submit the paperwork and return to work within a week, although she did not say that she told Kassay what her expectations were.

         {¶8} Kassay reached out to Weth on a number of occasions after that meeting to discuss his return to work and express his frustrations. Weth told Kassay that he had to reach out to Pacak. Kassay then made multiple attempts to contact the human resources department, but received no response. As a result, he continued to go to work through the next week. On October 29, 2013, however, Weth sent him a text message informing him that he was being taken off of the work schedule until he completed the FMLA paperwork. She also informed him that according to instructions from Pacak and Sean Whiteman, vice president of Niederst, he could not return to work until he completed the FMLA paperwork and received a "return-to-work note from the doctor."

         {¶9} The next day, Kassay went to the human resources department and met with Pacak, who reiterated that he needed to complete the FMLA paperwork and obtain medical documentation indicating that he could work without restrictions. At trial, Pacak agreed that Niederst had a policy requiring that "employees must be able to work full time, full duty, with absolutely no restrictions in order to be able to work and be employed[.]" At trial, Pacak testified that she did not give Kassay a deadline by which he was to complete and submit the FMLA paperwork. Neither Weth nor Pacak, however, asked if Kassay was still able to perform his work duties while wearing the brace.

         {¶10} After his meeting with Pacak, Kassay tried to contact someone at Niederst every day or "every other day" but was unable to get through to anyone. At trial, he testified that he was unable to schedule an immediate appointment with his doctor because his doctor was out of the country. Kassay also testified that when he was finally able to arrange an appointment with a doctor and presented the FMLA paperwork, the doctor told Kassay that he would not fill it out because it would constitute fraud since Kassay still intended to work.

         {¶11} During the first week of November, Kassay contacted Weth and told her that he finally met with his doctor and had the appropriate medical documentation. Weth told him to contact Pacak. When Kassay called Pacak, she informed him that he had lost his job because he failed to show or notify his supervisor that he was not coming in to work for two straight days, violating Niederst's attendance policy, and that under that policy's terms, Niederst considered Kassay to have voluntarily resigned.

         {¶12} According to Niederst's handbook, "[e]mployees must call in to report their absence each day unless prior notification has been given to cover a longer period of time." The handbook also states, "Employees who are absent two (2) consecutive work days without notifying their supervisor are considered to have resigned." Weth explained, however, that a suspended employee does not have to call into work to report his absence if the human resources department has a "return-to-work date" established for that employee.

         {¶13} At trial, Kassay called Weth, Pacak, and himself to the stand. After he rested his case, Niederst, Pacak, and Weth moved for a directed verdict, which the court denied. The defendants then presented their case in chief, recalling Pacak and Weth. After resting their case, the defendants renewed their motion for a directed verdict, which the court denied.

         {¶14} The jury returned a verdict in favor of Kassay and against all of the defendants individually and unanimously found Niederst liable.[2]

         {¶15} As to Niederst, it awarded Kassay $32, 329 in economic damages and $248, 900 in noneconomic damages, for a total of $281, 229.[3] The case proceeded to the punitive damages phase, where Kassay recalled Weth and Pacak and additionally called Adrina Niederst, the owner of Niederst, to the stand. Defendants cross-examined all of the witnesses, but did not present any on their own behalf. The jury imposed punitive damages on Niederst in the amount of $250, 000.[4] The court also awarded Kassay $201, 854.84 in attorney fees, one year's worth of front pay, and prejudgment interest for which all of the defendants were jointly and severally liable.

         {¶16} Subsequent to trial, Niederst and Pacak timely filed a motion for judgment notwithstanding the verdict ("JNOV"), remittitur, or for a new trial which the court denied.[5]Niederst appeals that denial.

         Law and Analysis

         {¶17} In its sole assignment of error, Niederst argues that the trial court erred when it denied its motion for JNOV, remittitur, or for a new trial. Niederst did not challenge the jury's finding of liability in its motion; instead, it challenged the jury's awards for damages.

         A. JNOV

         {¶18} Niederst argues that the trial court erred in denying its motion for JNOV because the noneconomic and punitive damages were not supported by the evidence. Specifically, Niederst argues that Kassay's testimony regarding his emotional distress was not sufficient to award noneconomic damages and Kassay's proof of malice was not sufficient to award punitive damages.

         {¶19} Civ.R. 50(B) allows a party to "serve a motion to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the party's motion[.]" "If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment. If the judgment is reopened, the court shall either order a new trial or direct the entry of judgment[.]" Id.

         {¶20} We review the trial court's ruling on a motion for JNOV de novo. Environmental Network Corp. v. Goodman Weiss Miller, L.L.P., 119 Ohio St.3d 209, 2008-Ohio-3833, 893 N.E.2d 173, ¶ 23. On review, "we must test whether the evidence, construed most strongly in favor of [the] appellee[] is legally sufficient to sustain the verdict." Id. Accordingly, neither the weight of the evidence nor the credibility of the witnesses is considered when undertaking this review. Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 679, 693 N.E.2d 271 (1998).

         1. Noneconomic Damages

         {¶21} Niederst first argues that Kassay's self-serving testimony, without corroborating evidence, was insufficient to support the jury's award of ...

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