COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72104 ALBERT WALKER : : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION CLEVELAND CITY SCHOOLS, : ET AL. : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-309642. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Michael L. Wolpert, Esq. Jerome Silver & Associates 3421 Prospect Avenue Cleveland, OH 44115 For Defendants-Appellees: Barton A. Bixenstine, Esq. Ulmer & Berne 1300 East 9th Street 900 Bond Court Building Cleveland, OH 44114-1583 2 *HOLMES, J.: Albert Walker, plaintiff-appellant, appeals from the decision of the Cuyahoga Court of Common Pleas, General Division, Case No. CV-309642, in which the trial court granted the motion for summary judgment of the Cleveland Public Schools, defendant-appellee. Plaintiff-appellant assigns four errors for this court's review. Plaintiff-appellant's appeal is not well taken. In August, 1985, plaintiff-appellant was hired by the Cleveland Public Schools (the Board ) as a cleaner in the Board's Administration Building. As a cleaner, plaintiff-appellant was represented by the Service Employees International Union, Local 47, and therefore, the terms and conditions of his employment were governed by the collective bargaining agreement between the Board and the Union. Plaintiff-appellant's duties included cleaning rooms, buffing and waxing floors, cleaning the bathrooms and cleaning outside doors and windows located at the entrance to the Administration Building. In August, 1995 a break-in and theft occurred at the Board's law office located within the Administration Building. Larry Masek, an investigator in the Board's Security Office, investigated the theft and reported that plaintiff-appellant's fingerprints were discovered on the transom above the office door where the thefts had occurred. This information was relayed to Richard Mosley, the Board's manager for Building Operations and Trades. Based upon the investigator's report Mr. Mosley contacted Cheryl DeLauer, plaintiff-appellant's union steward, and informed 3 her that he intended to schedule a pre-termination hearing for plaintiff-appellant. Ms. DeLauer then met with plaintiff-appellant to discuss the theft allegations and the Board's alleged fingerprint evidence. As a result of this meeting, plaintiff- appellant submitted his resignation from his employment with the Board. On June 3, 1996, plaintiff-appellant filed a complaint in the Cuyahoga County Court of Common Pleas against the Cleveland Pulibc Schools alleging that the Board had engaged in a deliberate course of conduct to remove the Plaintiff-Appellant Albert Walker from employment with the Board without conducting a pre-termination hearing as required by Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494, 506. (Plaintiff-appellant's complaint, paragraphs 4, 5 and 6.) Plaintiff-appellant alleged further that the Board's conduct constituted a tortious interference with prosepective business advantage and misrepresentation. (Plaintiff-appellant's complaint, paragraph 7.) On September 9, 1996, the trial court conductd the first pretrial hearing in the case at which time the following dates were established; final pretrial and discovery cut-off were scheduled for November 27, 1996. The parties were also given leave to file dispositive motions by the same date. On November 27, 1996, the Board filed its motion for summary judgment in which it maintained that plaintiff-appellant waived any due process rights he may have had by voluntarily resigning from 4 his employment. In the alternative, the Board argued that plaintiff-appellant's due process rights were preempted by Chapter 4117 of the Revised Code as well as the terms of the Collective Bargaining Agreement which require binding arbitration of such disputes. The Board also maintained that it was entitled to summary judgment on plaintiff-appellant's claims for tortious interference with prospective business advantage and misrepresentation since plaintiff-appellant was unable to prove that any employee of the Board made any representations to him whatsoever regarding his employment. On November 29, 1996, plaintiff-appellant requested a forty- five day extension of formal discovery. The trial court denied plaintiff-appellant's motion but allowed the parties to proceed with discovery by mutual consent without further court intervention. On December 30, 1996, plaintiff-appellant filed a motion for an extension of time to file a brief in opposition to the Board's motion for summary judgment. Plaintiff-appellant's motion was filed pursuant to Civ.R. 56(F). On January 8, 1997, plaintiff-appellant filed his brief in opposition to the Board's motion for summary judgment. Attached to plaintiff-appellant's brief was the affidavit of Cheryl DeLauer, plaintiff-appellant's union representative, who stated that, after plaintiff-appellant learned of the potential consequences of a pre- termination hearing, including possible criminal porsecution, he 5 chose to voluntarily resign his position and not pursue the union grievance procedure. On February 11, 1997, the trial court issued the following judgment entry: Motion for a Rule 56(F) extension of time to file brief in opposition to summary judgment is granted. Brief in opposition deemed filed 1-8-97. Defendant's motion for summary judgment is granted. FINAL. VOL 2047 PAGE 355. On February 25, 1997, plaintiff-appellant filed a timely notice of appeal from the judgment of hte trial court. The instant appeal now follows. Having a common basis in both law and fact, this court shall consider plaintiff-appellant's first and second assignments of error simultaneously. Plaintiff-appellant's first assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT WHERE AN ISSUE OF MATERIAL FACT REMAINED AS TO WHETHER DUE PROCESS REQUIREMENTS WERE SATISFIED. Plaintiff-appellant's second assignment of error states: THE GRANTING OF SUMMARY JUDGMENT WAS ERROR WHEN COMPETING INFERENCES CAN BE DRAWN FROM EVIDENTIARY MATERIAL. Plaintiff-appellant argues, through his first and second assignments of error, that genuine issues of material fact exist as to whether he was forced to resign from his position with the Board by the threat of criminal prosecution and whether he was deprived his due process right to a pre-termination hearing. 6 The standard for granting a motion for summary judgment is set forth under Civ.R. 56(C). In applying this rule, the Ohio Supreme Court has consistently held that, before such a motion can be granted, the moving party must show that: (1) there is no genuine issue of fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the non-moving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383; Welco Industries, Inc. v. Applied Cas. (1993), 67 Ohio St.3d 344; Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 (syllabus). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio App.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. 7 In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court recently discussed the proper standard to be applied when reviewing summary judgment motions. The court found as follows: Again, we note that there is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for summary judgment. See, e.g., Civ.R. 56(A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C). Id. At 298. This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. In this case, a review of the record from the trial court demonstrates that plaintiff-appellant failed to set forth any evidence that the Board or any employee of the Board took any action whatsoever other than notifying plaintiff-appellant's union representative that a pre-termination hearing was going to be scheduled. The fact that plaintiff-appellant's own union representative chose to discuss the possibility of criminal prosecution as well as the remote possibility of success should plaintiff-appellant opt to pursue a union grievance, cannot be imputed to the Board under the factual scenario presented. In 8 addition, the record clearly demonstrates that plaintiff-appellant voluntarily resigned from his employment prior to the scheduling of a pre-termination hearing by the Board. Therefore, he cannot now claim that he was terminated without first being afforded the opportunity for a hearing as set forth in Laudermill. Deoma, et al v. City of Shaker Heights, et al. (1990), 68 Ohio App.3d 72, 81. Viewing the evidence presented in a light most favorable to plaintiff-appellant, it is apparent that no genuine issue of material fact existed and the Board was entitled to judgment as a matter of law. Plaintiff-appellant's first and second assignments of error are not well taken. Plaintiff-appellant's third assignment of error states: THE TRIAL COURT ERRED IN NOT GRANTING THE RULE 56(F) MOTION OR OTHERWISE RULING BEFORE GRANTING SUMMARY JUDGMENT. Plaintiff-appellant maintains that the trial court improperly failed to rule upon his Civ.R. 56(F) motion for a continuance until such time as the trial court disposed of the motion for summary judgment thereby preventing plaintiff-appellant from conducting further necessary discovery. A trial court does not abuse its discretion when it grants a motion for summary judgment before discovery is complete when further discovery would not reasonably uncover additional facts relevant to the issues before the court. Glimcher v. Reinhorn (1991), 68 Ohio App.3d 131; Wilkerson v. Eaton Corporation (March 10, 1994), Cuyahoga App. No. 65182, unreported. 9 In this case, the trial court did, in fact, allow additional discovery between the parties after the November 27, 1996 discovery cut-off. The trial court also allowed additional time to plaintiff-appellant in which to file his brief in oppostion to defendant-appellee's motion for summary judgment. Attached to plaintiff-appellant's brief in opposition was the affidavit of Cheryl DeLauer, plaintiff-appellant's union representative, and admittedly the only person plaintiff-appellant had met with during the entire episode. Clearly, Ms. DeLauer's affidavit and the affidavit of Richard Mosley as well as the deposition testimony of plaintiff-appellant himself provided the trial court with more than sufficient evidence to rule upon the Board's motion for summary judgment. Plaintiff-appellant's third assignment of error is not well taken. Plaintiff-appellant's fourth and final assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION IN NOT EXTENDING MANDATORY DISCOVERY. Plaintiff-appellant maintains that the trial court committed an abuse of discretion by not granting his motion to extend mandatory discovery. It is well established that the trial court has broad discretion in regulating the discovery process and its decisions on such matters will not be reversed in the absence of an abuse of discretion. State ex rel. Doggett v. Gessaman (1973), 34 Ohio St.2d 55, 57, 295 N.E.2d 659. A judgment which prevents the requesting party from pursuing discovery will not be reversed 10 absent a showing that the ruling causes substantial injustice. Staver v. Standard Oil Co. (1990), 68 Ohio App.3d 783, 800, 589 N.E.2d 1348; Clark Cty. Solid Waste Mgt. Dist. V. Davis Clarkco Landfill Co. (1996), 109 Ohio App.3d 19, 38, 671 N.E.2d 1034. In this case, plaintiff-appellant had approximately six months, from the date of the filing of the underlying lawsuit up to and including January 8, 1997, in which to conduct and complete all necessary discovery. Clearly, the trial court provided sufficient time under the circumstances for plaintiff-appellant to collect all evidentiary materials necessary to properly respond to the dispositive motion filed by the Board. Plaintiff-appellant's allegation that outstanding discovery requests were ignored by the Board after the November 27, 1996 discovery cut-off date is unsupported by the record as no motion to compel discovery was ever filed by counsel for plaintiff-appellant. Under the facts of the underlying case, this court cannot now say that the trial court's managment of the discovery schedule constituted an abuse of discretion. Trimble-Weber v. Weber (April 25, 1997), Geauga App. No. 96-G-1997, unreported; Shaver, supra. Plaintiff-appellant's fourth and final assignment of error is not well taken. Judgment of the trial court is affirmed. 11 It is ordered that appelleeS recover of appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, C.J. and JOHN T. PATTON, J., CONCUR. *ROBERT E. HOLMES JUSTICE *Sitting by Assignment: Justice Robert E. Holmes, Retired Justice of the Ohio Supreme Court. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's .