Fayak v. Univ. Hosps.

2020 Ohio 5512

AMANDA FAYAK, Plaintiff-Appellant, v. UNIVERSITY HOSPITALS, ET AL., Defendants-Appellees.

No. 109279

COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

December 3, 2020

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-18-898337

Appearances:

Stephen W. Gard and David Glenn Phillips, for appellant.

Lewis, Brisbois, Bisgaard & Smith, L.L.P., David A. Campbell and Donald G. Slezak, for appellees.

SEAN C. GALLAGHER, J.:

{¶ 1} Plaintiff-appellant Amanda Fayak ("Fayak") appeals the trial court's decision that granted summary judgment in favor of defendants-appellees University Hospitals, et al.¹ (hereinafter "the defendants"). Upon review, we affirm.

Background

{¶ 2} Fayak is a former employee of University Hospitals Police Department. She was employed from December 2013 until her discharge in June 2016 after an extended leave of absence. The employment application completed by Fayak includes a provision that reads: "I agree that any claim or lawsuits relating to my service with University Hospitals or any of its subsidiaries or affiliates must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary." The employment application was submitted with her typewritten name, which represented her electronic signature according to the application.

{¶ 3} Fayak alleges that from December 2013 through November 2014 and from March to April 2015 she was subjected to gender discrimination, disparate treatment, sexual harassment, a hostile work environment, and retaliation and that this conduct affected her ability to perform her job. Fayak also alleges that she suffered from stress and anxiety and had panic attacks. She took a medical leave ofabsence from December 11, 2014, to March 9, 2015, during which time she was hospitalized or otherwise under the care and treatment of University Hospitals. She claims that during this time, her private medical information was disclosed to members of the University Hospitals Police Department without her consent.

{¶ 4} Shortly after her return to work, Fayak took a lengthy leave of absence beginning on April 23, 2015, until her eventual discharge in June 2016. Fayak does not allege any discriminatory, harassing, or retaliatory conduct occurred after April 23, 2015. Fayak submitted a form signed by her physician certifying her inability to work and indicating she would be unable to work for University Hospitals until July 1, 2015. Despite requests from University Hospitals, Fayak provided no further documentation to support her continued leave of absence. University Hospitals terminated her employment via letter on June 28, 2016, for the stated reason that Fayak was "on an unauthorized/unapproved leave since July 2, 2015" and had "not provided any further information * * * to support a continued leave of absence."

{¶ 5} Following her discharge, Fayak filed an initial complaint on September 19, 2016, but subsequently the case was voluntarily dismissed without prejudice. See Cuyahoga C.P. No. CV-16-869216 (voluntarily dismissed May 31, 2017). On February 2, 2017, Fayak refiled this action against University Hospitals, two employees of University Hospitals, and several individual members of the University Hospitals Police Department. The individuals named as defendants in the refiled action had not been named as defendants in the previous complaint. The refiled complaint raises claims for "gender discrimination, disparate treatment & hostile work environment" in violation of R.C. Chapter 4112, "gender discrimination, sexual harassment & hostile work environment" in violation of R.C. Chapter 4112, "retaliation & hostile environment based on retaliation" in violation of R.C. Chapter 4112, invasion of privacy, and intentional infliction of emotional distress.

{¶ 6} The defendants filed a Civ.R. 12(B)(6) motion to dismiss that was denied by the trial court. Following further proceedings, the defendants filed a motion for summary judgment. Among other arguments, the defendants argued that Fayak's claims raised in the refiled complaint are barred by the six-month limitations period in her employment application and that the latest possible date she could allege any wrongdoing based upon her employment was her discharge date of June 28, 2016. The defendants further argued that Fayak failed to comply with University Hospitals' leave policies, that she was terminated for failing to provide University Hospitals with requested leave documents and extending her leave beyond University Hospitals' maximum leave policy, and that Fayak's claims were otherwise unsupported by the record or failed as a matter of law.

{¶ 7} Fayak filed a brief in opposition in which she described the conduct underlying her claims. She argued that her claims were not barred by the applicable limitations period, that her initial complaint had been filed less than six months after her termination, and that her refiled complaint was filed within the one-year savings statute. She proceeded to argue the merits of her claims. She did not challenge the legitimacy of her discharge.

{¶ 8} In their reply brief, the defendants claimed that Fayak did not argue that her termination from employment was unlawful and that no unlawful conduct was alleged to have occurred later than April 23, 2015. Therefore, the defendants raised the argument that the original complaint was filed beyond the six-month limitations period contained in Fayak's employment application. The defendants further argued against each of Fayak's claims. Additionally, the defendants filed a motion to strike portions of Fayak's affidavit that was filed in support of her brief in opposition.

{¶ 9} Fayak filed a motion for leave to file a response to the defendants' reply brief, stating in part that the defendants had asserted a new argument in their reply that was not set forth in the dispositive motion. The trial court granted this motion.

{¶ 10} On November 7, 2019, the trial court granted the defendants' motion for summary judgment. The trial court observed that "Fayak does not dispute the validity of the limitations period, only the Defendants' contention that her claims are untimely under [the contractual] provision." The trial court proceeded to find that Fayak's claims were barred by the six-month contractual limitations period in her employment application. The trial court recognized that the defendants had first raised the issue that the original complaint that was filed was untimely in their reply brief, but found the issue was properly before the court because it had permitted Fayak to file a surreply brief. The trial court proceeded to find as follows:

All the events that constitute [Fayak's] claims occurred prior to her last date of active employment on April 23, 2015, when she began her medical leave. Therefore, there is no genuine dispute of material fact that the original complaint filed on September 19, 2016 was well outside the original six-month limitation period.

* * * Although Fayak has presented evidence that her working environment caused her stress-related medical leave, she has not presented evidence that any of the events that occurred prior to April 23, 2015 was the ultimate cause of her termination.

The Defendants have provided evidence that the cause of Fayak's termination was because she failed to provide documentation to support her continued leave, and that in fact, her leave was unauthorized as of July 1, 2015. Fayak has not presented any evidence to demonstrate that this termination occurred for any other reason. * * *

Because there are no facts causally connecting Fayak's termination to any of the actions that constituted the hostile work environment or intentional infliction of emotion distress, there is no genuine dispute of material fact that the events giving rise to Fayak's claims all arose prior to April 23, 2015. Therefore, she would need to have filed her original suit within six months of that date at the latest to remain within the contractual limitations period. Although neither party specifically states the date of the invasion of privacy claim, it is clear from the evidence that this event occurred before her medical leave began in April 2015, and therefore is barred under the limitations period.

{¶ 11} Having found the contractual limitations period barred the action, the trial court did not address the merits of any of the claims. The trial court also deemed moot the motion to strike that had been filed by the defendants. Fayak timely filed this appeal.

Law and Analysis

{¶ 12} Appellate review of summary judgment is de novo, governed by the standards set forth in Civ.R. 56. Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 14. Summary judgment is appropriate only when "[1] no genuine issue of material fact remains to be litigated, [2] the moving party is entitled to judgment as a matter of law, and [3] viewing the evidence in the light most favorable to the nonmoving party, reasonable minds can reach a conclusion only in favor of the moving party." Id., citing M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12. Once the moving party has satisfied its initial burden of identifying specific facts in the record that demonstrate an entitlement to summary judgment under Civ.R. 56, the nonmoving party has a reciprocal burden to set forth specific facts showing there is a genuine issue for trial. Crenshaw v. Cleveland Law Dept., 8th Dist. Cuyahoga No. 108519, 2020-Ohio-921, ¶ 33, citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264.

{¶ 13} Fayak raises three assignments of error for our review. We begin with the first and second assignments of error. Under her first assignment of error, Fayak claims the trial court erred by failing to hold invalid the...