Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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.
Denise Pacak Robert S. Gilmore Sean P. Malone Kohrman Jackson
& Krantz, L.L.P.
BEFORE: Boyle, J., Stewart, P.J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
J. BOYLE, J.
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.
Finding no merit to the assignment of error, we affirm.
History and Factual Background
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. The case proceeded to a jury trial where
the following evidence was presented.
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.
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.
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.
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
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."
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.
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
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.
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.
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
The jury returned a verdict in favor of Kassay and against
all of the defendants individually and unanimously found
As to Niederst, it awarded Kassay $32, 329 in economic
damages and $248, 900 in noneconomic damages, for a total of
$281, 229. 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. 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.
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.Niederst appeals that denial.
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.
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
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[.]"
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).
Niederst first argues that Kassay's self-serving
testimony, without corroborating evidence, was insufficient
to support the jury's award of ...