COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72083 HARVEY J. McGOWAN, : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : CUYAHOGA METROPOLITAN : HOUSING AUTHORITY, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 15, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 309312 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Harvey J. McGowan, Pro Se 1245 East 135th Street East Cleveland, Ohio 44112-2413 For defendant-appellee: James W. Guest 1441 West 25th Street Cleveland, Ohio 44113 -2- NAHRA, P.J.: Appellant, Harvey J. McGowan, appeals the grant of summary judgment in favor of appellee, Cuyahoga Metropolitan Housing Authority (hereinafter CMHA ), in his complaint for an injunction and damages as a result of racial discrimination in the workplace. Appellant is a Lieutenant with the CMHA police. His position with CMHA is covered by a collective bargaining agreement; however, appellant has not become a member of the collective bargaining unit which represents him. Appellant filed his complaint on May 29, 1996, having previously started, but not completed, the grievance procedure outlined in the collective bargaining contract. In his complaint, appellant did not specifically cite to specific federal or state statutes on which he was proceeding. Appellant and CMHA stipulated that CMHA was to answer the complaint by August 3, 1996. On August 9, 1996, CMHA moved the court for leave to answer the complaint, which motion was granted. On August 12, 1996, appellant moved the court for a default judgment, which motion was denied. The court granted summary judgment to CMHA, holding that appellant was limited to the grievance procedures of the collective bargaining agreement. I. Appellant's first assignment of error reads: THE FIRST ASSIGNMENT OF ERROR IS THAT THE TRIAL ERRED IN DENYING THE APPELLANT'S UNOPPOSED MOTION FOR DEFAULT JUDGMENT. SEE APPELLANT MOTION FOR DEFAULT JUDGMENT, FILED AUGUST 12, 1996, DENIED JANUARY 14, 1997. (SIC) -3- Appellant argues that the court erred by denying his motion for default judgment because CMHA did not provide justification for it's six-day delay in answering the complaint. CMHA asked the court for leave to plead six days after its time to answer had expired. In State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs. (1995), 72 Ohio St.3d 464, 650 N.E.2d 1343, the court stated that a court's determination to extend time for filing is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of discretion. Id.at 465, 650 N.E.2d at 1344. Even though CMHA did not provide explicit reasoning for its minimal delay, we would not find that the court abused its discretion by granting CMHA leave to plead where appellant made no showing of prejudice by CMHA's delay in filing. Moreover, for the following reasons, we find that appellant would not be entitled to default judgment in this case. Even if the court erred by allowing CMHA to file an answer, appellant was still required to satisfy the requirements for a default judgment pursuant to Civ.R. 55. Civ.R. 55 provides in part: (A) Entry of Judgment. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply in writing or orally to the court therefore; *** If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall when applicable accord a right of trial by jury to the parties. *** -4- (D) Judgment Against This State. No judgment by default shall be entered against this state, a political subdivision, or officer in his representative capacity or agency of either unless the claimant establishes his claim or right to relief by evidence satisfactory to the court. In Shimola v. Cleveland (1994), 70 Ohio St.3d 110, 112, 637 N.E.2d 325, 326, the Supreme Court stated: Under Civ.R.55(D), a default judgment may be entered against the state only if the claimant established his claim or right to relief by evidence satisfactory to the court. State ex rel. Weiss v. Indus. Comm. (1992), 65 Ohio St.3d 470, 473, 605 N.E.2d 37, 39. Therefore, a default judgment against the state is not absolutely prohibited, but the court must look beyond the simple admissions resulting from a failure to serve a responsive pleading. See 1 Klein, Browne & Murtaugh, Baldwin's Ohio Civil Practice (1988) 311, T 25.02(B)(2). Attached to appellant's complaint are three exhibits consisting of memoranda directed to appellant from his patrol commander; no other evidence was provided to the court. Although the averments in appellant's complaint may be taken as true, the court is not required to automatically enter default judgment against a political subdivision for failing to answer. Instead, the party moving the court for default judgment has to establish his claim for relief to the court's satisfaction. In this case, appellant's complaint and his supporting evidence do not meet the burden imposed for a grant of default judgment. Appellant's complaint alleged racial discrimination on the part of CMHA, however appellant only offered three facially innocuous memoranda. Given the sparsity of evidence presented by appellant in support of his motion for default judgment, we find that it was properly denied. -5- Appellant's first assignment of error is not well taken. II. Appellant's second assignment of error reads: THE SECOND ASSIGNMENT OF ERROR IS THAT THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE ON APPELLANT'S UNLAWFUL DISCRIMINATION CLAIM, WHERE THERE EXIST GENUINE ISSUES OF MATERIAL FACTS. SEE PLAINTIFF'S BRIEF IN SUPPORT OF SUBJECT MATTER JURISDICTION, FILED NOVEMBER 21, 1996, AND PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, FILED JANUARY 24, 1997. In it's January 31, 1997 journal entry, the court stated that CMHA's unopposed evidence showed that CMHA was entitled to judgment as a matter of law. CMHA argues it is entitled to judgment because appellant is a member of a bargaining unit and has not followed the contractual grievance procedures contained within his contract. Although CMHA is correct in its factual assertions, we find that appellant is entitled to proceed with this lawsuit and that the trial court erred by granting CMHA judgment at this time. A motion for summary judgment is reviewed de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1158. The contract to which appellant and CMHA are bound covers the terms and conditions of appellant's employment. It contains a grievance procedure which culminates in a process of binding arbitration. However, we find that even though appellant did not pursue the grievance procedure in its entirety, he is still entitled to bring an action pursuant to Section 42, Title 42, U.S. Code without exhausting his contractual remedies. -6- Appellant's complaint did not cite any statutory law, state or federal, on which he was basing his complaint. In his brief in opposition to CMHA's motion for summary judgment, appellant cited Section 1983, Title 42, U.S. Code which provides in part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Colombia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. *** The syllabus in Gibney v. Toledo Bd. of Edn. (1988), 40 Ohio St.3d 152, 532 N.E.2d 1300, reads: Exhaustion of state administrative remedies is not required prior to obtaining relief pursuant to Section 1983, Title 42, U.S. Code in state court. (Felder v. Casey (1988), 487 U.S. 131, 101 L.Ed.2d 123, 108 S.Ct. 2302, followed.) See, also, Weinfurter v. Nelsonville-York School Dist. Bd. of Edn. (1991), 77 Ohio App.3d 348, 602 N.E.2d 318. Accordingly,appellant may bring a claim based on Section 1983, Title 42, U.S. Code. Appellant additionally cited R.C. 4112.02 as a basis for his lawsuit. R.C. 4112.02 provides in part: It shall be an unlawful discriminatory practice: (A) For any employer, because of the race, color, religion, sex, national origin, handicap, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment. -7- R.C. 4112.99 provides that Whoever violates this chapter is subject to a civil action for damages, injunctive relief, or any other appropriate relief. As we have found that appellant may maintain his federal cause of action without exhausting his remedies pursuant to the contract, we also find that he may maintain his state cause of action without exhausting his contractual remedies. In this case, the binding arbitration, if adhered to, acts to waive appellant's statutorily created right to trial. This waiver of a statutory right cannot be waived by a collectively bargained contract. See, e.g., Penny v. United Parcel Service (C.A.6 1997), 156 L.R.R.M. (BNA) 2618, 2622 ( An employee whose only obligation to arbitrate is contained in a collective bargaining agreement retains the right to obtain a judicial determination of his rights under a statute such as the ADA ). Appellee argued to the trial court that it was without jurisdiction to hear appellant's claims, as he has alleged an unfair labor practice and his sole remedies are contained in R.C. 4117. Syllabus paragraph 2 of Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9 (1991), 59 Ohio St.3d 167, 572 N.E.2d 87 provides: 2. If a party asserts rights that are independent of R.C. Chapter 4117, the party's complaint may properly be heard in common pleas court. However, if a party asserts claims that arise from or depend on the collective bargaining rights created by R.C. Chapter 4117, the remedies provided in that chapter are exclusive. -8- Appellant's rights, enumerated in R.C. 4112, are independent of R.C. 4117. Appellant may therefore pursue his cause of action based upon R.C. 4112.02. Appellant's second assignment of error is well taken. Judgment reversed and remanded. This cause is reversed and remanded for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said 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. O'DONNELL, J., and _____________________________ JOSEPH J. NAHRA ROCCO, J., CONCUR. PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See 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 -9- journalization of this court's announcement of decision by the .