COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73533 ROBERT STALLWORTH, : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : GREATER CLEVELAND REGIONAL : TRANSIT AUTHORITY, ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 5, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 287403 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: S. David Worhatch 4920 Darrow Road Stow, Ohio 44224-1406 For defendants-appellees: Barry Y. Freeman Richard C. Hubbard, III DUVIN, CAHN & HUTTON Erieview Tower -- 20th Floor 1301 East Ninth Street Cleveland, Ohio 44114-1886 -2- NAHRA, J.: Appellant, Robert Stallworth, appeals the grant of summary judgment in favor of appellees, Greater Cleveland Regional Transit Authority (hereinafter RTA ) and David Vegh. Appellant was employed at RTA as a material handler. His immediate supervisor was David Vegh. Appellant was terminated from RTA after he was implicated, investigated, and indicted in a scheme to defraud RTA. A vendor to RTA named appellant as an accessory in a scheme whereby forged or false invoices were submitted to and then paid by RTA. A videotaped confession of his involvement by appellant was obtained by the Cleveland Police Department. Appellant was indicted on seven charges: theft, theft in office, tampering with records, two counts of forgery, and two counts of uttering. After appellant was indicted, but before trial, RTA terminated his employment. Appellant, although a member of a collective bargaining unit, did not challenge his termination. Prior to trial, the trial court ruled appellant's confession to be inadmissable. Appellant was acquitted at trial then attempted to regain employment with RTA. After he was unsuccessful, he instigated two lawsuits; this action and an action in federal court. In his complaint in this action, he alleged five counts for relief: malicious prosecution, racial discrimination in violation of R.C. 4112.99, wrongful discharge in violation of public policy, promissory estoppel, and negligent investigation. In his federal action, appellant alleged that his civil rights were -3- violated. That action was resolved on summary judgment in favor of appellees. I. Appellant's first assignment of error reads: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' NEW COUNSEL'S MOTION FOR EXTENSION OF THE DEADLINE STIPULATED BY THE PARTIES AND ORDERED BY THE COURT FOR FILING POTENTIALLY DISPOSITIVE MOTIONS. The resolution of appellants' first assignment of error requires a determination by this court of whether the trial court abused its discretion by granting appellees' counsel a 30-day extension of time to file dispositive motions. See, Civ.R. 6(B). An abuse of discretion connotes more than error on the part of the trial court, it denotes a decision which is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, 1141-1142. Appellant argues that the deadlines set by the court should be rigidly adhered to. In this case, we cannot say that the trial court abused its discretion where appellant has not demonstrated specific prejudice to his case because of the trial court's grant of the 30-day extension of time for the filing of dispositive motions. Appellant's first assignment of error is overruled. II. Appellants' third assignment of error reads: III. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, PARTICULARLY WHERE ISSUES OF CREDIBILITY ABOUND IN THE RECORD OF THESE PROCEEDINGS. -4- The standard of review of a grant of summary judgment is de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1158. On de novo review, an appellate court may affirm a trial court's grant of summary judgment for any reason which justifies that decision. A court may grant a motion for summary judgment pursuant to Civ.R. 56 when it determines that: (1) No genuine issue as to any material fact remains to be litigated; (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 party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 369 N.E.2d 267, 274. In his third assignment of error, appellant argues that the trial court erred in granting summary judgment. We will separately address each of appellant's alleged causes of action. -5- A. Appellant claims that he is entitled to damages for malicious prosecution. To state a claim for relief, appellant must show the elements of malicious prosecution, which are: (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused. Trussell v. General Motors Corp. (1990), 53 Ohio St.3d 142, 146, 559 N.E.2d 732, 736. In this case, appellant was indicted by a grand jury. The indictment creates a presumption of probable cause absent significantly irregular procedure or the receipt of perjured testimony in the indictment process. Adamson v. May Co. (1982), 8 Ohio App.3d 266, 268-69, 456 N.E.2d 1212, 1215. Appellant argues that the lack of probable cause in the prosecution is evidenced by the incredulous nature of the vendor's testimony at trial. However incredulous the trial testimony was found to be, it does not foster a presumption that that testimony could not give rise to a finding of probable cause by the grand jury. Moreover, appellant was not indicted solely on the vendor's accusation; the grand jury was presented with other evidence of appellant's involvement in the fraudulent scheme. The subsequent suppression of appellant's confession before trial and the incredulous testimony of the vendor is irrelevant to the determination of whether or not probable cause existed to prosecute appellant. -6- For these reasons, appellant did not establish that his prosecution was initiated upon a lack of probable cause. Appellees are entitled to summary judgment on appellant's action for malicious prosecution. B. Appellant's second cause of action in his complaint alleges that RTA unlawfully discriminated against him based upon his race in violation of R.C. 4112.99 and 4112.02. R.C. 4112.99 provides in pertinent part: Whoever violates this chapter is subject to a civil action for damages, injunctive relief, or any other appropriate relief. *** R.C. 4112.02 provides in pertinent 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. *** In In re Brantley (1987), 34 Ohio App.3d 320, 518 N.E.2d 602, the court stated in the first paragraph of its syllabus that: 1. To establish employment discrimination as prohibited by R.C. 4112.02(A), the plaintiff must present a prima facie case of discrimination. The burden then shifts to the employer to show a reasonable nondiscriminatory rationale for the challenged action. The plaintiff must then demonstrate by a preponderance of the evidence that the stated rationale is a pretext for discrimination. -7- In Wagner v. Allied Steel & Tractor Company (1995), 105 Ohio App.3d 611,614, 664 N.E.2d 987,989, we stated: In order to make a prima facie case of racial discrimination, the employee must show that (1) he was a member of a statutorily protected class; (2) he was discharged from his job by the employer; (3) he was qualified for the position; and (4) either he was replaced by a person not belonging to the protected class or his discharge enabled the employer to retain such a person. Id., citing McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817. When the documentary evidence is construed in appellant's favor, appellant presented a prima facie case of discrimination. However, appellees presented evidence of a legitimate reason for appellant's discharge and their failure to reinstate him to his position following his acquittal. Appellant argues that RTA's actions in investigating, disciplining, and terminating him were the product of a racial animus, and that RTA's stated reason for his termination was merely a pretext. As his only evidence of pretext, appellant argues that, his involvement in the fraud could only be construed as a failure to report the fraud to RTA and that a white coworker who failed to report the fraud to RTA, was neither investigated, disciplined, nor prosecuted. However, appellant fails to demonstrate that the coworker was aware of the fraudulent scheme, was implicated by the vendor perpetrating the scheme, or that his coworker confessed to participating in the scheme to defraud RTA. Appellant has not produced sufficient evidence to meet the burden of proof to counter RTA's claim that its actions were -8- reasonable and nondiscriminatory. Accordingly, appellees were properly granted summary judgment as to appellant's claim of discrimination in violation of R.C. 4112.99. C. Appellant's claim for wrongful discharge in violation of public policy is barred as a matter of law. The record reflects that appellant was subject to the terms and conditions of a collective bargaining agreement. The syllabus in Haynes v. Zoological Society of Cincinnati (1995), 73 Ohio St.3d 254, 652 N.E.2d 948 states: In order for an employee to bring a cause of action pursuant to Greeley v. Miami Valley Maintenance Contractors, Inc. that employee must have been an employee at will. (Greeley v. Miami Valley Maintenance Contrs., Inc. [1990], 49 Ohio St.3d 228, 551 N.E.2d 981, construed and followed.) The Supreme Court explained its reasoning in Haynes, supra, as follows: As a member of a union, the terms of [Haynes'] employment relationship were governed by a collective bargaining agreement. That agreement specifically limited the power of the zoo to terminate Haynes and, as a result, took her outside the context of employment at will. Because she was not an employee at will, she is outside the class of employees for whom Greeley provides protection. Id. at 258, 652 N.E.2d at 951. The trial court properly granted summary judgment on appellant's claim of wrongful discharge because appellant was subject to a collective bargaining agreement. -9- D. Appellant's claim for promissory estoppel is barred as a matter of law. In Dixon v. Cuyahoga Dept. of Human Services (July 25, 1991), Cuyahoga County No. 58823, unreported, this court stated: Appellant's second cause of action asserts a claim of promissory estoppel as an alternative argument that his rights are governed by the terms of the collective bargaining agreement. The doctrine of promissory estoppel applies to oral at-will employment agreements. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 261. Since it is undisputed that appellant's employment, as a classified civil servant, was governed by the collective bargaining agreement and was not an employment at-will situation, appellant's claim of promissory estoppel fails as a matter of law. The trial court properly granted summary judgment on appellant's claim of promissory estoppel where he was subject to a collective bargaining agreement. E. In his fifth cause of action, appellant alleged that he should recover damages for RTA's negligent investigation of his conduct in the scheme which defrauded it. In Lamson v. Firestone Tire & Rubber Co. (Mar. 13, 1991), Summit App. No. 14692, unreported, the plaintiff alleged a cause of action for negligent investigation against his former employer following his termination. The court declined to adopt the unrecognized tort of negligent investigation. Id. As the tort has not been previously recognized in Ohio, we decline to so adopt a cause of action. -10- The trial court properly granted summary judgment as to appellant's cause of action seeking damages for negligent investigation. III. Appellant's second assignment of error reads: II. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR LEAVE TO SUPPLEMENT THEIR MOTION FOR SUMMARY JUDGMENT WITHOUT FIRST AFFORDING PLAINTIFF'S COUNSEL AN OPPORTUNITY TO RESPOND AFTER GRANTING SUCH LEAVE. We find that the trial court properly granted summary judgment in favor of appellees without reference to the supplemental materials filed by appellee. See, Part II, supra. Because of this, we find appellant's second assignment of error to be moot and we need not address it. See, App.R. 12(A)(1)(c). Judgment affirmed. -11- It is ordered that appellees recover of appellant their 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. JOSEPH J. NAHRA JUDGE PORTER, P.J., and DYKE, J., CONCUR. 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 journalization of this court's announcement of decision by the .