Experience
Lykins v. GMC
Dinsmore & Shohl represented General Motors Corporation in a suit filed by the surviving spouse of one of it's employees seeking in excess of $300,000 in benefits under the deceased husband's employee pension plan. The district court ruled, as a matter of law, that Plaintiff was not entitled to receive surviving spouse benefits under her deceased husband's ERISA-qualified employee pension plan, because her husband had not changed the designation of his former wife as beneficiary under the GMC plan prior to his death. The case was dismissed upon Motion for Summary Judgment.
Maynard v. Ashland Oil
Federal District Court, Southern District of Ohio, granted summary judgement motion in favor of Ashland, dismissing all of Plaintiff's claims.
McDowell v. GE Pension Plan, S.D. Ohio
Breach of Employment Contract, Wrongful Discharge in Violation of Public Policy, and Age and Disability Discrimination. The total amount at issue was in excess of $100,000. Dismissed upon motion for summary judgment. In granting GE summary judgment, the court concluded that the pension board was not arbitrary or capricious in its determination that the injured party was capable of performing her occupation as a value engineer. The injured party carried the burden of establishing that she was permanently incapacitated for work as a value engineer. The overwhelming evidence before the pension board indicated that the injured party was able to resume work as a value engineer and specified that she was not permanently disabled. The court also concluded that, contrary to the injured party's contention, the pension board was not obligated to follow the Social Security Administration's decision to award the injured party total and permanent disability benefits.
McFee; Ohio Civil Rights Commission v. Nursing Care Management Of America, Inc. d/b/a Pataskala Oaks Care Center, 2010 Ohio-2744
In this appeal to the Supreme Court of Ohio, Dinsmore argued that an employment policy that imposes a uniform minimum length of service requirement for leave eligibility with no exception for maternity leave is not direct evidence of sex discrimination under Revised Code Chapter 4112, seeking reversal of the Fifth District Court of Appeals. After full briefing and oral argument to the Supreme Court of Ohio, the Supreme Court agreed establishing, as a proposition of law, that an employment policy that imposes a uniform minimum length of service requirement for leave eligibility with no exception for maternity leave is not direct evidence of sex discrimination under R.C. Chapter 4112.
Mellon v. AseraCare
We defended AseraCare against a whistleblower claim from a former employee, who had worked as a home health aid and was terminated for her inappropriate behavior. The plaintiff brought claims under the Minnesota Fair Labor Standards Act (FLSA), the Minnesota Whistleblower Act (MWA) and a common law claim for defamation. We filed a motion for summary judgment on the plaintiff’s FLSA and MWA claims. We argued that the court should dismiss the plaintiff’s MWA claim because she did not present any evidence that she was actually aware of any illegal activity, which is a requirement under the MWA. Regarding the plaintiff’s FLSA claim, we argued that AseraCare did not have any knowledge of any of the hours the plaintiff supposedly worked off of the clock. We won summary judgment on the plaintiff’s MWA and FLSA claims. We later negotiated a favorable settlement on the defamation claims, enabling our client to move forward with their business with minimal damages.
Miller v. AT&T Corp., 83 F. Supp. 2d 700 (S.D. W.Va. 2000), aff’d, 250 F.3d 820 (4th Cir. 2001)
Lead counsel in case in which the plaintiff was terminated from her employment by AT&T for excessive absences due to plaintiff's and spouse's illnesses. After her termination, the plaintiff brought suit under the Family and Medical Leave Act and moved for partial summary judgment, which was granted. A trial was subsequently held to determine damages, the issues being whether plaintiff was entitled to back pay, front pay, and liquidated damages. The court ordered that plaintiff be paid back pay with interest, but adopted AT&T’s argument that the speculative nature of front pay made reinstatement a more appropriate remedy. Further, the court found that AT&T had acted in good faith and with reasonable grounds to believe that it acted properly, and thus that liquidated damages were not awardable.
Mullins v. Charleston Stamping & Manufacturing, Inc., 2011 U.S. Dist. LEXIS 65846 (S.D. W.Va. 2011)
Lead counsel in representation of a stamped parts manufacturer sued for age discrimination by an unsuccessful applicant for employment at its plant located in South Charleston, West Virginia. The plaintiff alleged that Charleston Stamping intentionally discriminated against him because of his age in failing to hire him, and that its hiring policies and procedures had a disparate impact on applicants over age 40. Charleston Stamping moved for summary judgment as a matter of law, asserting alternatively that the plaintiff’s claims were barred by the applicable statute of limitations, and that he could not make out a prima facie case of age discrimination. The court granted summary judgment on all claims.
Multi-State Employment Regulation Guide
Dinsmore represented a national restaurant chain operating in more than 40 states to identify core areas of employment regulation at the state level, including wage and hour, child labor, time off - including vacation, voting, jury service and for crime victims - employee privacy rights and several other key areas and incorporated the myriad laws and regulations into a field reference guide for mangers, operators and human resources professionals. The guide was prepared in a manner that can be efficiently revised as the laws of the various states are modified. To complement the reference guide, we assisted the client with the preparation of a detailed field management guide for the managers, operators and human resources professionals for the administration of the varied rules affecting their multi-state operations to maximize compliance and minimize both employee relations issues and litigation.
New Beckley Mining Corp. v. UMWA, 946 F.2d 1072 (4th Cir. 1991)
Court overruled lower court's dismissal of civil RICO allegations against Union focused on strike violence. The Court ruled the federal district court abused discretion by abstaining from hearing federal RICO action.
Non-Compete Cases
Successfully prosecuted multiple non-compete cases on behalf of various clients throughout Central Ohio.
Northwestern Ohio Building & Construction Trades Council v. City of Toledo, et al., Lucas County Court of Common Pleas
Plaintiff Union claimed violation of prevailing wage and hour laws under Ohio Revised Code. Successfully negotiated a settlement at less than 50% of full value of case and avoided attorneys fees.
OSHA Matters - Construction Projects
Successfully negotiated multiple claims by OSHA on construction-related accidents.
Panetta v. Chesapeake Energy Corp., 2010 U.S. Dist. LEXIS 46947 (S.D. W.Va. 2010)
Co-counsel in the successful enforcement of contractual arbitration provisions against a plaintiff who alleged that Chesapeake engaged in fraud in connection with his severance. After removing the case to federal court, Chesapeake filed a motion to dismiss maintaining that the plaintiff’s claim falls under the arbitration clause of the severance agreement, and that under the Federal Arbitration Act it must be stayed or dismissed so that the case could be arbitrated. The Court granted Chesapeake’s motion and stayed further action.
Pascocciello v. Interboro School Dist., 2005 U.S. Dist. LEXIS 31421 (S.D. W. Va. 2005)
Lead counsel for a Pennsylvania school district and school principal who had asked a teacher to resign after he was accused of sexually assaulting several students. The principal later signed a reference form on behalf of the district with knowledge that it would be forwarded to potential employers, and the superintendent of the Pennsylvania school district also completed a form which he received from a West Virginia board of education that was considering the teacher's application for employment. The West Virginia board hired the teacher, and 22 years later he sexually assaulted and murdered a student. The court adopted ISD’s argument that neither it nor the principal engaged in conduct that allowed the West Virginia court to exercise personal jurisdiction over them, severed the student's claims against them, and transferred those claims to the Eastern District of Pennsylvania.
Patrick v. Ferguson, Inc.
Federal District Court, Southern District of Ohio, granted summary judgement motion in favor of Ferguson, dismissing Plaintiff's age discriminaiton claims.
Plaintiff v. Hospital
Successfully obtained reversal by the West Virginia Supreme Court of an award of unemployment compensation benefits.
Plaintiff v. Large Retailer
Obtained summary judgment in United States District Court for the Southern District of West Virginia on disability discrimination claim brought by former employee.
Plaintiff v. Regional Airline
Successfully obtained reversal by the West Virginia Supreme Court of the West Virginia Human Rights Commission's finding of discrimination.
Ponder v. AT&T Corporation and Lucent Technologies Inc.
Plaintiffs brought a putative national class action claim involving over 50,000 retirees seeking reinstatement of retirement benefits provided for under CBA’s. Class certification denied and favorable resolution reached.
Priscilla Parker v. Pediatric Acute Care, P.S.C.
Plaintiff Priscilla Parker was a long-time employee of Pediatric Acute Care who ultimately rose to the level of office manager position. At the company's holiday party, two female co-workers presented Parker with a “gag gift” consisting of a gift card to an adult store named Priscilla’s, which sold lingerie, adult sex toys and sexual movies. After the party, Parker complained numerous times about the gift to PAC’s co-owner. Meanwhile, Parker became increasingly unable to meet her job duties; she failed to pay important invoices such as health insurance premiums and insurance bills, made payroll errors, and failed to address problems with the office phone system. PAC terminated Parker’s employment in May, 2004. Parker alleged that she was subjected to a sexually hostile work environment and to retaliatory discharge for complaining about the “gag gift.” After the trial court dismissed the case on summary judgment, Parker appealed. The Kentucky Court of Appeals upheld dismissal of Parker’s claims. 28 WL 746677 (Ky. App. 2008). The Court of Appeals panel agreed that the single instance of the presentation of the gag gift was not sufficiently severe or pervasive to constitute unlawful sexual harassment under KRS 344. Further, the appellate court held that Parker’s retaliatory discharge claim also failed because “such an action must be predicated on a causal connection between the statutorily-protected activity and the termination of employment.” Because Parker did not offer proof sufficient to sustain her claim of a sexually hostile work environment, the Court determined that Parker could not proceed with her claim of retaliation for having complained about the incident. Accordingly, the Court affirmed summary judgment and the case was dismissed in its entirety.
Published Decisions - Federal
Selected published decisions - Federal:
- Lavender v. City of Blue Ash, 162 Federal App. 548, (6th Cir. 2006)
Summary judgment upheld--Officers who detained plaintiff had reasonable belief that armed robber might have been in car, and were justified in using force to secure scene. - Watson v. City of Mason, No.: C-1-04-283, United States District Court for the Southern District of Ohio, Western Division, 2005 U.S. Dist. Lexis 27116, (November 8, 2005).
Summary judgment upheld--city’s municipal court building did not violate ADA. - Feinthel v. Payne, No. 04-3057, United States Court of Appeals for the Sixth Circuit, 121 Fed. Appx. 60; 2004 U.S., (December 30, 2004).
Summary judgment upheld--City policy did not cause the injuries, there was probable cause for the search and arrest, and the force was proper under the circumstances. - Paquette v. City of Mason, 250 F. Supp. 2d 840; 2002 U.S. Dist. Lexis 25934, (September 3, 2002).
Summary judgment upheld--Employee’s e-mail did not constitute a matter of public concern, and city did not violate Ohio’s Whistleblower Act. - Johnson v. City of Mason, 101 F. Supp. 2d 566; 2000 U.S. Dist. Lexis 8604,
(April 4, 2000).
Summary judgment upheld--Employee’s right leg injury and resulting limitations did not constitute disability within meaning of ADA. - Rucker v. City of Kettering, 84 F. Supp. 2d 917; 2000 U.S. Dist. Lexis 1765,
(February 7, 2000).
Motion for preliminary injunction in civil rights action for denial of employment on basis of gender was denied. - Black v. City of Blue Ash, USDC Southern Dist. Of Ohio, C-1:08-CV-00584
Summary judgment granted—plaintiff passenger's constitutional rights were not violated by defendants in the course of a police chase. - DeWald v. Emery Oleochemicals
Defense Verdict—Employee was neither discriminated against nor retaliated against under the Americans with Disabilities Act ("ADA") and Ohio state law (second-chair).
Race Discrimination, Hostile Work Environment and Retaliation Case
Just one month before trial in August 2012, Dinsmore obtained a summary dismissal of a suit filed by a former security officer who was terminated after 13 years of employment for failing to immediately report to his superiors information regarding possible theft of the Company’s product, alcoholic beverages. The officer alleged that he was subjected to race discrimination and a racially hostile work environment and that he had been terminated in retaliation for having filed two EEOC charges 2½ years earlier. The officer also acknowledged that he had failed to timely report information about possible theft, but claimed that a “mixed-motive” standard should apply, allowing a plaintiff to proceed by arguing that his termination was motivated by both lawful and unlawful reasons. The Court rejected this theory, stating that the officer had not proffered evidence that any employee who failed to timely report suspected theft received a less severe discipline. Further, the Court dismissed the officer’s racially hostile work environment claim on the grounds that the two instances upon which he based his claims were not directed at him because of his race and did not constitute racial harassment. Finally, the Court dismissed the retaliatory discharge claim on the grounds that the officer did not proffer evidence of a causal connection between his 2005 EEOC charges (both of which were dismissed) and his 2008 termination. Accordingly, the case was dismissed in its entirety with prejudice. The Kentucky Court of Appeals affirmed the summary dismissal of the security officer's claims in their entirety.
Rashawn Manigan v. Southwest Ohio Regional Transit Authority
Plaintiff asserted claims of disability discrimination under federal and state law, claiming that his employer failed to accommodate his alleged disability. We moved for summary judgment, arguing that our client had reasonably accommodated the plaintiff and that it was not obligated to provide the specific accommodation sought by the plaintiff because this would require our client to violate its collective bargaining agreement with the union representing its employees. The court granted summary judgment for our client. The Sixth Circuit Court of Appeals affirmed.
Representation Before the EEOC and State Fair Employment Practices Agencies
We have represented our client, a provider of transportation management services, in a number of matters before the EEOC and State Fair Employment Practice agencies across the country. The issues involved race discrimination, sex discrimination, national origin discrimination and retaliation charges. We received no probable cause dismissals in 18 charges during the previous two years.
Richard Rector, et al. v. Lincoln Electric Company, et al., Cuyahoga County Court of Common Pleas
Plaintiff brought class action intentional tort claims and product liability claims. Successfully negotiated dismissal of claims against client without payment by client.
Rita Waldridge v. Feather, Inc.
Defended a claim of sexural harassment, retaliation, and constructive discharge against a restaurant franchisee arising from the act of a supervisor. This claim was settled on favorable terms after the verdict in Sue Spencer v. Feather, Inc.
Rochester Midland Corporation v. Peter J. Castellano
Plaintiff sued our client, a former employee, seeking injunctive relief and damages of $1,000,000 for alleged breach of non-compete restrictive covenants in the employment agreement. Plaintiff's request for injunctive relief was denied and plaintiff's claims were dismissed.
Sandra Hodges v. Psychiatric Professional Services, Inc.
Received summary judgment on plaintiff's age discrimination, gender discrimination, FMLA retaliation, promissory estoppel, and violation of public policy claims. Granted summary judgement on all claims by S.D. Ohio, affirmed by Sixth Circuit Court of Appeals.
Serednyj v. Beverly Healthcare LLC
Won in the United States Court of Appeals for the Seventh Circuit. The 7th Circuit upheld summary judgment in Defendant’s favor against claims for sex, disability, and retaliation under the Pregnancy discrimination Act, Title VII, and Americans with Disabilities Act
Shepherd v. Rite Aid of West Virginia, Inc.
We obtained summary judgment in a case involving the Plaintiff, who claimed that she was discriminated against on the basis of her gender, race, and that she was wrongfully terminated in violation of public policy after failing a drug test. She alleged that the drug test itself was against public policy concerning drug testing of current employees. The circuit court granted our client summary judgment on the wrongful termination issues. The Plaintiff then filed a writ of mandamus, requesting that the Supreme Court of Appeals in West Virginia accept the appeal. the Court, 5-0, rejected the Plaintiff's request. Because the gender and race claims hinged on the wrongful termination claim, the Plaintiff dismissed those claims.
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