Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Brown, for appellant
& Rich Co., L.P A., Stephen S. Zashin, and David P.
Frantz, for appellees.
JOURNAL ENTRY AND OPINION
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
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
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
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,
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
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
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.
18} Dacres presents a single assigned error on
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 ...