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Dacres v. Setjo, L.L.C.

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 18, 2019

EWAN DACRES, Plaintiff-Appellant,
v.
SETJO, L.L.C., ET AL., Defendants-Appellees.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-894592

          Joanne Brown, for appellant

          Zashin & Rich Co., L.P A., Stephen S. Zashin, and David P. Frantz, for appellees.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE.

         {¶ 1} Plaintiff-appellant Ewan Dacres ("Dacres") filed suit against his employer, defendant-appellee Setjo, L.L.C. d.b.a. KIA of Bedford ("KIA") advancing multiple counts relating to the employment relationship including discrimination and wrongful termination. The trial court granted KIA's motion to stay the proceedings pending arbitration. Dacres appeals the determination.[1]

         I. Background and Facts

         {¶ 2} Dacres filed a complaint for damages and injunctive relief against KIA on March 15, 2018. Jamaican-born Dacres was the only African-American manager employed by KIA. Dacres states that he joined KIA in 2010 and that he performed well and exhibited tireless work ethics but was terminated without warning on August 17, 2017.

         {¶ 3} Dacres was one of three employees whose signatures were required to approve payments for employee participation in the unit bonus program. Dacres as the sales manager, the general manager, and a KIA owner were each responsible for independently verifying that the employee in question met the program requirements to provide a check-and-balance system. Dacres was summoned to a meeting with KIA management in August 2017 and informed that an employee had been improperly approved and paid for program participation. Dacres, the sole minority, was the only person terminated for the error. His conduct was deemed to be theft but not the conduct of the other signers.

         {¶ 4} Dacres also asserted that he was consistently harassed about his race and national origin by managers and coworkers during his employment and was routinely referred to as "boy." According to the complaint, Dacres refused to respond to the moniker "boy" by a named coworker who approached Dacres in front of customers and staff, "violently shoved [Dacres] to the ground while screaming 'f**king boy you work for me.'" Complaint, p. 73. Dacres said there was no adverse action taken against the employee.

         {¶ 5} KIA also condoned similar behavior by other employees. The director of finance would, in front of staff and customers, "say [to Dacres] in a loud voice 'boy don't you hear me talking to you.'" Id. at p. 77. Coworkers made other stinging comments such as Dacres could accompany them to the golf course to carry their bags, comment "there goes the neighborhood" when he entered a meeting, or called him "Kunte Kinte" because he was required to work 12 to 14 hours per day, six days per week for 16 months while the white managers worked five days per week.

         {¶ 6} Dacres cited numerous occasions where African-American employees were called fat and black, hood rats, and ni**ers. There were also comments about Dacres's Jamaican heritage such as whether Jamaicans lived in trees, dirt huts, or speak English.

         {¶ 7} In spite of the submission of multiple verbal, written, and email complaints to the owners and general manager, Dacres claimed nothing was done to address the issue. Dacres asserted that his termination was based on his race.

         {¶ 8} Dacres claimed discrimination, hostile work environment, and wrongful termination based on race and national origin. R.C. 4112.02(A). Dacres also made claims of intentional infliction of emotional distress and defamation of character based on KIA telling coworkers and potential employers that Dacres stole and misappropriated funds.

         {¶ 9} Dacres also charged KIA with fraud. Managers were paid a percentage of a stated line item known as line 6395. Dacres argued that the line item amount used to determine his pay was intentionally misrepresented in order to pay him less than the other managers.

         {¶ 10} Finally, Dacres charged KIA with tortious interference of a business relationship. Dacres argued that he had an independent business relationship with KIA Motors because of his membership in the KIA Motor's KIA Sales Elite group. Members received quarterly payments for sales made the prior year except where the individual retires. Dacres said KIAs practice was not to retire managers until their Elite payments had been issued but changed that practice and retired Dacres so he could not collect the payments.

         {¶ 11} KIA responded to the complaint on May 18, 2018, and effectively denied the allegations of the complaint. KIA advanced multiple affirmative defenses including that the claims were subject to an enforceable arbitration agreement that could not be pursued in court, and that R.C. 4113.71 applied to provide immunity to an employer for job performance information disclosures.

         {¶ 12} Also, on May 18, 2018, KIA moved to stay the proceedings pending arbitration and requested costs and sanctions. KIA argued that all claims of the complaint relate to Dacres's employment and are therefore covered by the arbitration agreement executed by Dacres on November 28, 2016.

         {¶ 13} On June 11, 2018, Dacres filed a response to the motion. Dacres argued that the arbitration agreement is unenforceable because there was no meeting of the minds, that the arbitration agreement is procedurally and substantively unconscionable, and that the arbitration agreement is void due to duress. Dacres averred in an affidavit supporting his response that his office manager presented the arbitration agreement to him on November 28, 2016 at 8:00 p.m., refused to give him a copy to have it reviewed by his attorney, informed him that signing was not negotiable, refused to allow him to read the agreement and directed that he sign it or he would not get paid for remuneration already earned. Two weeks later, Dacres was provided with an unsigned copy of the arbitration agreement.

         {¶ 14} KIA filed a reply refuting Dacres's claims. KIA added that all employees received handbooks and a copy of the arbitration agreement in November 2016. KIA attached a document signed by Dacres on November 28, 2016 that states Dacres received a handbook, and argued that Dacres received the arbitration agreement prior to November 28, 2016 to review. KIA also provided an affidavit from the office manager averring that employees were provided copies of the arbitration agreement prior to signing and that employees were not forced to sign. KIA also denied that there was a threat to withhold Dacres's pay.

         {¶ 15} No hearing was requested or conducted regarding the motion. The trial court determined that, "even if true," the threat to withhold Dacres's earned wages was "not so extreme as to deprive" Dacres "of his unfettered will, and did not create a situation in which the circumstances permitted no other alternative but to sign the arbitration agreement." Journal Entry Order and Opinion (Aug. 9, 2018), p. 2. "Dacres could have resigned" and sued later if he was not paid. The journal entry also claims that Dacres never complained about his treatment at work. Id.

         {¶ 16} The trial court determined that procedural unconscionability was lacking because he wrote his name[2] on the first page of the five-page agreement and signed the last page. The court also found that evidence was lacking to show that the "'bargaining process was so oppressive as to remove meaningful choice.'" Id. at p. 3, citing McCaskey v. Sanford-Brown College, 8th Dist. Cuyahoga No. 97261, 2012-Ohio-1543, ¶ 29. The trial court further determined that there was no need to address substantive unconscionability because procedural unconscionability had not been established.

         {¶ 17} Finally, the trial court disagreed that there was no meeting of the minds. Based on Ohio case law, simply signing the arbitration agreement assumes that the signer read and understood the arbitration agreement and the other party should be able to rely on that. Id. at p. 4, citing Butcher v. Bally Total Fitness Corp., 8th Dist. Cuyahoga No. 81593, 2003-Ohio-1734, ¶ 16.

         II. Assigned Error

         {¶ 18} Dacres presents a single assigned error on appeal.

The court erred in finding as a matter of law that when an employer who is obligated to pay an employee wages due and earned under an employment contract, threatens not to pay the employee unless he or she signs a [second] separate agreement that he or she does not want to sign, the employee has ...

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