text:
    POSEIDON ENVIRONMENTAL SERVICES, INC., Plaintiff-Appellant/Cross-Appellee, v. NU WAY INDUSTRIAL WASTE MANAGEMENT, LLC et al., Defendants-Appellees/Cross-Appellant.
    NO. 16 MA 0083
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: December 28, 2017
    Attorney Bruce M. Broyles, 164 Griswold Drive, Boardman, Ohio 44512, For Plaintiff-Appellant.
    Attorney Constant A. Prassinos, 134 Westchester Drive, Youngstown, Ohio 44515, For Defendants-Appellees.
   JUDGES: Hon. Gene Donofrio, Hon. Mary DeGenaro, Hon. Carol Ann Robb

OPINION

DONOFRIO, J.

{¶ 1} Plaintiff-appellant, Poseidon Environmental Services, Inc., appeals the Mahoning County Court of Common Pleas' decision to limit an adverse inference jury instruction to only two pieces of evidence and granting directed verdicts in favor of defendants-appellees-cross-appellants, Nu Way Industrial Waste Management, LLC ("Nu Way"), Pamela Johnston ("Johnston"), Georgienne Douropoulos ("Georgienne"), and Louie Douropoulos ("Louie"). Defendants-appellees-cross-appellants are collectively referred to herein as "appellees." Appellees appeal the Mahoning County Court of Common Pleas' order denying the remaining directed verdict motions and the court's order issuing an injunction against Johnston.

{¶ 2} Appellant is in the business of brokering hazardous waste transportation services to the industrial coatings industry with an emphasis on structural steel painters and lead abatement contractors. In 2007, Johnston was hired to work for appellant. Johnston's job responsibilities are somewhat in dispute. According to appellant, Johnston's job responsibilities included contacting customers directly in order to provide them with price quotes for appellant's services. This exposed Johnston to: appellant's customer list, the name, phone number, and email address of the contact person for each customer, and price rates/profit margins of appellant. Appellant estimates that Johnston was privileged to approximately 100 different customer identities and their contact information throughout the duration of her employment. Johnston's job responsibilities also included preparing submittals to each customer which included price quotes for appellant's services. According to Johnston, her responsibilities were more akin to an office secretary. In order to carry out her job responsibilities, appellant provided Johnston with numerous computing devices including: a cell phone, a tablet device, and a laptop computer. These devices were considered appellant's property.

{¶ 3} In January of 2013, Johnston terminated her employment with appellant and began working for Nu Way. Nu Way is owned in whole or in part by Georgienne and Louie. Nu Way is also in the business of brokering hazardous waste transportation services to various businesses. Georgienne is Johnston's mother and Louie is Johnston's stepfather. Upon terminating her employment with appellant, appellant instructed Johnston to return any and all phones and computer devices that appellant had provided her. Appellant argues that it instructed Johnston to keep any information on her devices related to appellant's business intact which potentially included: customer lists, customer contact information, pricing information, and communications between Johnston and various customers. Johnston returned her smart phone, tablet, and computer to appellant. However, the smart phone and tablet were reset to factory settings which erased any and all data on them. Similarly, some information from the computer had been deleted.

{¶ 4} Appellant then contracted Global Digital Forensics to perform forensic analyses on the three devices. David Gitkos from Global Digital Forensics was the employee who was assisting appellant in this venture. Mr. Gitkos' analyses of the phone and tablet revealed no information. However, Mr. Gitkos's analysis of the computer revealed numerous references to Nu Way, Georgienne, and Louie.

{¶ 5} On May 29, 2014, appellant contacted Johnston and Nu Way via a letter and demanded that they cease and desist from contacting any of appellant's customers. Additionally, appellant requested that Johnston and Nu Way preserve numerous items in anticipation of litigation. On August 1, 2014, appellant then filed this action alleging multiple counts against appellees including: a common law breach of duty claim, a misappropriation of trade secrets claim, a breach of contract claim, and a claim for injunctive relief against appellees.

{¶ 6} The case then proceeded to discovery. During the discovery phase, appellant received evidence that appellees had provided services to approximately ten of appellant's clients during the 2014 year. Additionally, Mr. Gitkos performed a more thorough examination of the laptop Johnston returned to appellant and discovered that approximately 22,734 of appellant's company files had been accessed and most likely copied onto two USB mass storage devices.

{¶ 7} Eventually, appellant filed a motion for the trier of fact to make an adverse inference against appellees. The basis of the motion was that when Johnston terminated her employment with appellant, she was immediately instructed to return any and all computerized devices appellant had provided her. Additionally, appellant instructed Johnston to maintain any and all company records and communications on those devices to not hinder appellant's business. Despite these requests, the devices were returned with deleted data. Furthermore, Mr. Gitkos performed a more thorough analysis of Johnston's laptop and concluded that Johnston accessed approximately 22,734 company files belonging to appellant and copied them between January 28, 2014 and February 5, 2014. Additionally, appellant argued that it requested numerous text messages and emails from all appellees during the discovery process but appellees refused to comply, even after several motions to compel discovery were granted. However, the trial court overruled appellant's motion for the trier of fact to make an adverse inference. After the discovery phase, the case then proceeded to a jury trial.

{¶ 8} At trial, on appellant's case-in-chief, appellant called its owner Pat Kapsulis, Mr. Gitkos from Global Digital Forensics, Louie, Georgienne, and Johnston. Appellant presented or attempted to present evidence that showed: Johnston violated a common law duty of loyalty she owed to appellant by copying appellant's files for Nu Way's use, the documents Johnston copied were trade secrets, Johnston's employment contract with appellant contained a no solicitation of clients clause that she violated, Georgienne, Louie, and Nu Way knew or should have known that documents Johnston provided to them were misappropriated trade secrets, and ten out of the 14 companies Nu Way did business with in 2014 were customers of appellant's.

{¶ 9} At the conclusion of appellant's case-in-chief, appellees moved pursuant to Civ.R. 50 for a directed verdict on all claims. Appellees' argument for this motion, and throughout its case-in-chief, was that the files Johnston supposedly transferred from appellant to Nu Way were not trade secrets. Furthermore, appellees argued that Johnston was not responsible for soliciting clients at Nu Way. Appellant argued against this motion by arguing that sufficient evidence had been provided to the trial court to show that appellant could succeed on all of its claims.

{¶ 10} The trial court granted appellee's Civ.R. 50 motion with regards to any and all of appellant's claims against Georgienne and Louie. The trial court also granted appellees' Civ.R. 50 motion on misappropriation of trade secrets claims regarding appellant's customer lists against Johnston and Nu Way. The trial court held that customer lists and contact information did not constitute a trade secret. The trial court denied the remaining Civ.R. 50 motions regarding all claims against Johnston and Nu Way and ruled that the pricing and bid quoting information belonging to appellant that appellees may have been in possession of were trade secrets.

{¶ 11} Appellees then presented their case-in-chief. In addition to appellees calling Georgienne and Johnston, appellees also called Dr. Kriss Schuler and Gus Chirgott. Dr. Schuler testified that, to the best of his knowledge after reviewing Mr. Gitkos' report, Johnston merely copied appellant's data from a cloud storage device onto a computer that was owned by appellant. Mr. Chirgott testified that he co-owns a hazardous waste transportation brokerage company and that he does not consider his pricing and bid quote information a trade secret.

{¶ 12} At the close of evidence and after closing arguments, the trial court read its instructions of law to the jury. Relevant to this appeal, the trial court instructed the jury that it could make an adverse inference against appellees concerning the contents of two mass storage USB devices that were connected to appellant's computer in Johnston's possession as appellant's files were being copied. Appellees contended that these devices were accidentally damaged and could not be provided during discovery or trial. Appellant objected to this particular jury instruction on the basis that it should not have been limited to just the USB devices and should have included: emails appellant requested during discovery that were not provided, cell phones appellant requested during discovery that were not provided, and Georgienne and Louie's personal laptop that appellant requested during discovery but was not provided. Appellant contended that the emails, cell phones, and laptop that were not produced potentially had incriminating evidence that was harmful to appellees' case which was why they were not provided. However, the trial court did not extend its adverse inference instruction.

{¶ 13} On April 29, 2016, the jury returned the following verdicts: Johnston did not violate her common law duty of loyalty to appellant, Johnston was exposed to and misappropriated the trade secrets of appellant, and Nu Way did not misappropriate any trade secrets of appellant's to its benefit.

{¶ 14} However, on May 27, 2016, the trial court issued its final judgment entry in this case. The trial court rendered judgment in favor of appellant on its common law breach of loyalty claim against Johnston. Additionally, the trial court rendered judgment in favor of appellant on its claim for injunctive relief and enjoined Johnston from working in the industrial waste brokerage business in Mahoning County, Ohio for a period of 18 months. Additionally, the trial court enjoined Johnston from soliciting any of appellant's clients for a period of six months. Appellant timely filed this appeal on June 20, 2016. Appellant now raises two assignments of error.

{¶ 15} Appellant's first assignment of error states:

THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON THE ADVERSE INFERENCE REGARDING EMAILS NOT PROVIDED IN DISCOVERY, THE CELL PHONES THAT WERE NOT PRODUCED FOR DIGITAL IMAGING, AND THE HP COMPUTER NOT PRODUCED FOR DIGITAL IMAGING.

{¶ 16} Appellant argues that the adverse inference jury instruction should not have been limited to the two USB mass storage devices and should have encompassed other potential pieces of evidence. During the discovery phase, appellant requested certain emails, cell phones that were in appellees' possession, and the personal computer of Georgienne and Louie which, appellant contends, they used for purposes of conducting Nu Way business. However, none of these were produced during the discovery process. Appellant argues that appellees' inability or refusal to provide these potential pieces of evidence is sufficient to warrant an adverse inference jury instruction.

{¶ 17} When reviewing a trial court's jury instructions, the proper standard of review of trial court's refusal to give a requested jury instruction is whether such refusal constituted an abuse of discretion under the facts and circumstances of the case. State v. Everson, 7th Dist., 2016-Ohio-87, 57 N.E.3d 289, ¶ 58. Abuse of discretion implies that the court acted in an unreasonable, arbitrary, or unconscionable manner. State v. Herring , 94 Ohio St. 3d 246, 2002-Ohio-796, 762 N.E.2d 940.

{¶ 18} An adverse inference may arise where a party who has control of a piece of evidence fails to provide the evidence without satisfactory explanation. Vidovic v. Hoynes, 11th Dist., 29 N.E.3d 338, 2015-Ohio-712, ¶ 78 citing Schwaller v. Maguire , 1st Dist. No. C-02055, 2003-Ohio-6917, 2003 WL 22976339. Under those circumstances, the jury may draw an inference that would be unfavorable to the party who has failed to produce the evidence in question. Id. This allows courts to give such a charge where there is a showing of "malfeasance" or "gross neglect." Id.

{¶ 19} Appellant argues that it filed proposed jury instructions on April 27, 2016 that included an instruction for an adverse inference due to appellees' failure to produce: two USB drive mass storage devices inserted into appellant's computer at the time appellant's files were being copied, Johnston's cell phone, Louie's cell phone, the Nu Way computer, and Johnston's 2013 tax returns. An adverse inference was not requested regarding Georgienne's cell phone because she provided it to appellant to be forensically analyzed. But during the instructions of law, the trial court instructed the jury to make an adverse inference against Johnston and Nu Way on just the two USB drive mass storage devices. (Tr. 611-612). Furthermore, appellant's counsel did object to the trial court's decision to limit the instruction to just the USB drive mass storage devices. (Tr. 629).

{¶ 20} Concerning the emails being granted an adverse inference, appellant sent requests for production of documents to appellees seeking: all emails Johnston sent to Georgienne and Louie between the years 2010 and 2014, all emails Georgienne sent to Johnston between the years 2010 and 2014, and all emails Louie sent to Johnston between the years 2010 and 2014. Appellees objected to these requests arguing that they were overly broad and unduly burdensome. Appellant then filed a motion to compel appellees to comply with these discovery requests which the trial court granted. However, the emails were not produced.

{¶ 21} Johnston, Georgienne, and Louie would be in possession of emails they sent each other. The objection appellees made to produce these emails during discovery was that the requests were overly broad, unduly burdensome, and unlikely to lead to discoverable evidence. However, the trial court overruled appellees objection and ordered appellees to comply with appellant's request. The trial court's ruling would negate any legal explanation appellees may have had for not providing the emails. Moreover, it does not appear from the record that appellees had a sufficient reason to explain why the emails were not produced.

{¶ 22} However, appellant's brief and reply brief for this appeal are silent on the element of malfeasance or gross neglect in order to obtain an adverse inference. After reviewing the record, there is no showing of malfeasance or gross neglect on the part of appellees failing to provide the emails appellant requested. Without a showing of malfeasance or neglect, the trial court did not abuse its discretion by not including the emails in its adverse inference instruction.

{¶ 23} With regard to Johnston and Louie's cell phones, these two appellees would be in possession of their respective cell phones and the record does not indicate any satisfactory explanation for their absence from discovery or trial. However, there again appears to be no indication that the absence of their phones was due to any malfeasance or gross neglect on the part of Johnston or Louie. Without any indication that Johnston or Louie acted with malfeasance or gross neglect, the trial court did not abuse its discretion by not including these cell phones in its adverse inference instruction.

{¶ 24} Regarding appellees' computer, there is evidence in the record that it belonged to Georgienne and Louie and was used to conduct Nu Way business. (Trial Tr., 353-355). Furthermore, there is no satisfactory explanation for its absence from discovery. However, there again is no indication from the record that its absence was due to malfeasance or gross neglect on any part of the appellees. Without any indication of malfeasance or gross neglect on the part of appellees, the trial court did not abuse its discretion by not including the Nu Way computer in its adverse inference instruction.

{¶ 25} Ultimately, with no evidence of malfeasance or gross neglect on appellees' part in failing to produce these potential pieces of evidence, the trial court did not abuse its discretion in not allowing the adverse inference jury instruction regarding these pieces of evidence.

{¶ 26} Accordingly, appellant's first assignment of error is without merit and overruled.

{¶ 27} Appellant's second assignment of error states:

THE TRIAL COURT ERRED IN DIRECTING A VERDICT IN FAVOR OF GEORGIENNE DOUROPOULOS AND LOUIE DOUROPOULOS ON THE CLAIM OF MISAPPROPRIATED TRADE SECRETS IN VIOLATION OF OHIO REVISED CODE SECTIONS 1333.61 TO 1333.69, UNIFORM TRADE SECRETS ACT.

{¶ 28} Appellant raises two arguments concerning this assignment of error. First, appellant argues that there was evidence in the record to suggest that Georgienne and Louie had reason to know that information provided to them by Johnston constituted a trade secret. Appellant points out that the relevant definition of "misappropriation" is the "Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means." R.C. 1333.61(B)(1). Moreover, appellant argues that if the trial court issued an adverse inference regarding the emails, cell phones, and the computer that appellees did not produce, the jury could have found for appellant on its claim of misappropriation of trade secrets against Georgienne and Louie. Second, appellant argues that the trial court erred in ruling that customer lists do not constitute a trade secret.

{¶ 29} Addressing appellant's first argument concerning this assignment of error, when a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. Civ.R. 50(D). "A motion for directed verdict does not present any factual issues, but a question of law, even though in deciding such a motion, it is necessary to review and consider the evidence." Ruta v. Breckenridge-Remy Co. , 69 Ohio St.2d 66, 430 N.E.2d 935 (1982). "When a motion for a directed verdict is entered, what is being tested is a question of law; that is, the legal sufficiency of the evidence to take the case to the jury." Id. "The evidence is granted its most favorable interpretation and is considered as establishing every material fact it tends to prove." Id. Questions of law are subject to a de novo review. State v. Brown , 142 Ohio St.3d 92, 2015-Ohio-486, 28 N.E.2d 81, ¶ 7.

{¶ 30} Ohio's Uniform Trade Secrets Act is governed by R.C. 1333.61 - 1333.69. Misappropriation, in its relation to Ohio's Uniform Trade Secrets Act, is defined as the acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means. R.C. 1333.61(B)(1).

{¶ 31} The trial court granted appellees' Civ.R. 50 motion with regard to any and all claims against Georgienne and Louie but denied the motion with regard to any and all claims against Nu Way. Appellant's argument is that Georgienne and Louie misappropriated its pricing information for the benefit of Nu Way. Appellant asserts that Georgienne and Louie misappropriated the pricing information because they had reason to know that any information given to them by Johnston was misappropriated from appellant.

{¶ 32} There is evidence in the record that Georgienne and Louie knew or should have known that any information Johnston was providing to them as owners/operators of Nu Way was a trade secret belonging to appellant. Appellant points out that this was shown by appellant sending letters to preserve any and all information on its devices that Johnston was in possession of and that Georgienne and Louie knew about these letters. Appellees admitted the existence and receipt of those letters in their answer in this action.

{¶ 33} However, to the extent Georgienne and Louie may have known that any information Johnston was providing to them was a trade secret, any error made by the trial court in granting appellees' Civ.R. 50 motion concerning claims against Georgienne and Louie is harmless in nature. Reviewing courts are required to disregard any error or defect in the pleadings or proceedings that do not affect the substantial rights of the adverse party. R.C. 2309.59.

{¶ 34} The trial court denied the Civ.R. 50 motion with regard to the misappropriation of trade secrets claim against Nu Way and allowed the jury to come to a verdict on that claim. The jury came to the verdict that Nu Way did not misappropriate any trade secrets belonging to appellant. If the only employees of Nu Way are Johnston, Georgienne, and Louie, as appellant argues, and if Nu Way did not misappropriate any trade secrets in this case, it would be highly unlikely that the jury would have found Georgienne and Louie to have misappropriated any trade secrets either. If Georgienne and Louie were misappropriating any trade secrets of appellant's, it would be for the benefit of their hazardous waste brokerage company, Nu Way. Because the jury came to the decision that Nu Way was not misappropriating trade secrets in this case, it is highly unlikely that the jury would come to the conclusion that its owners/operators were misappropriating trade secrets. Consequently, the trial court's decision to dismiss all claims against Georgienne and Louie is harmless error and appellant's first argument concerning this assignment of error is without merit.

{¶ 35} Addressing appellant's second argument on this assignment of error, a trade secret is defined, in relevant part, as business information or plans, financial information, or listing of names, addresses, or telephone numbers. R.C. 1333.61(D). In order for the items listed in R.C. 1333.61(D) to be considered a trade secret, the person asserting such information is a trade secret must derive independent economic value, actual or potential, from said information not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and the information is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. R.C. 1333.61(D)(1)-(2).

{¶ 36} Addressing the customer lists, while ruling on appellees' Civ.R. 50 motion, the trial court held:

"I am going to overrule the motion and indicate that there are certain things that the jury may not find were or constituted trade secrets, and that involves any owner or customer of the broker. None of those people are-their lists or contact information not concerning a trade secret, do not constitute a trade secret. And then, of course, the other service individuals, the transport people, the painters, all of these other people that the broker deals with, likewise, are not-those lists do not constitute trade secrets as the evidence has indicated in this case. So the motion is granted as far as those individuals are concerned.
* * *
But the court here notes that the contact information, and the vendors, and the owners do not constitute trade secrets as a matter of law. So those claims are out."

Tr. 433-434.

{¶ 37} A business' customer list constitutes an intangible asset that is presumptively a trade secret when the owner of the list takes measures to prevent its disclosure in the ordinary course of business to persons other than those selected by the owner. State ex rel. Besser v. Ohio State Univ. , 89 Ohio St.3d 396, 732 N.E.2d 373 (2000). Appellant argues that its customer list complete with contact information constitutes a trade secret. In support of its argument, appellant points to a passage in the transcript in which appellant's owner, Pat Kapsulis, testified to the amount of effort that went in to cultivating his customer list in the hazardous waste brokerage business. (Tr. 262-263). Furthermore, Pat Kapsulis testified as to how appellant's business operates with this information. (Tr. 196-199).

{¶ 38} While appellant's brief and reply brief in this appeal do not address the element of reasonable steps appellant took to keep its customer list a secret pursuant to R.C. 1333.61(D)(2), the trial court admitted exhibit 1, the employee agreement between appellant and Johnston, at trial without objection. (Tr. 200, 403). The first paragraph of the agreement states "Employee agrees that he/she works for Poseidon Environmental Services, Inc. and that all business conducted per PESI remains at all times during and after work strictly confidential." It is foreseeable that Johnston would need access to appellant's customer lists and pricing information in order to perform her job. Therefore, a reasonable step in maintaining the secrecy of that information would be to have Johnston sign a confidentiality agreement, which was included in Johnston's employee agreement. Ultimately, appellant satisfied all of the elements of a trade secret concerning its customer list and the trial court erred when it ruled that said list did not constitute a trade secret.

{¶ 39} Moreover, even if appellees' argument is correct and the information in appellant's customer list is information that is publicly accessible, that does not disqualify it from being considered a trade secret. "When documents already in the public domain are combined to form a larger document, a trade secret may exist if the unified result would afford a party a competitive advantage." State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency , 88 Ohio St.3d 166, 724 N.E.2d 411 (2000). Appellant provided evidence of the effort required to compile its customer list. (Tr. 262-263). If appellant's customer list as compiled by appellant was to be disclosed, it would afford appellant's competitors a competitive advantage.

{¶ 40} Accordingly, appellant's second argument in this assignment of error has merit and is sustained. The balance of this assignment is without merit and overruled.

{¶ 41} Appellees filed a cross-appeal in which they state two assignments of error. Appellee's first assignment of error states:

DEFENSE MOTION FOR DISMISSAL AT THE CLOSE OF PLAINTIFF'S EVIDENCE AND MOTION FOR JUDGMENT NOV SHOULD HAVE BEEN GRANTED.

{¶ 42} Appellees argue that their Civ.R. 50 motion regarding all of appellant's misappropriation of trade secrets claims should have been granted because the job bidding process or job quote formulas used by appellant were not trade secrets. Appellees argue that there is testimony in the record from Pat Kapsulis, appellant's owner/operator, that suggests such formulas are purely subjective and do not constitute a formula under Ohio's Uniform Trade Secret Act.

{¶ 43} As previously stated above, a trade secret can include business information and does not necessarily have to be a formula as appellee suggests.

R.C. 1333.61(D). Therefore, the pricing information could still qualify as a trade secret.

{¶ 44} In order for the appellant's job bidding process or job quote formulas to be considered a trade secret, appellant must derive independent economic value from that information not being generally ascertainable by others through proper means and the information has to be the subject of reasonable steps under the circumstances to maintain its secrecy. R.C. 1333.61(D)(1)-(2). For the reasons stated previously addressing appellant's second assignment of error, the reasonable steps element of R.C. 1333.61(D)(2) is met because appellant had Johnston sign a confidentiality agreement.

{¶ 45} The issue then becomes whether appellant derived independent and economic value from the secrecy of its job bidding process or job quote formulas. During the trial, Perry Kapsulis testified as to how he taught Johnston the business appellant was engaged in which included: vendors, pricing information, profit margins, and the production of pricing quotes. (Tr. 196-199). Kapsulis was essentially testifying about how he derived independent and economic value from this information. Furthermore, appellees' own witness, Mr. Chirgott, testified that that type of information is not generally known to the public. (Tr. 530-532). Ultimately, the trial court did not err in ruling that pricing and bid quoting information was a trade secret.

{¶ 46} Accordingly, appellees' first assignment of error is without merit and overruled.

{¶ 47} Appellees' second assignment of error states:

THE JUDGE IMPROPERLY GRANTED AN INJUNCTION AGAINST PAMELA JOHNSTON.

{¶ 48} Appellees argue that the record is devoid of any evidence that Johnston's actions caused any harm to appellant. Without any evidence of Johnston harming appellant, appellees argue that the injunction was improperly granted. Additionally, appellees argue that the language of the injunction is ambiguous.

{¶ 49} Appellant argues that the record shows evidence of harm Johnston caused it such as: Johnston was working for appellant, Johnston was exposed to the client lists and pricing information of appellant, Johnston then terminated her employment with appellant and immediately began working for Nu Way, and ten out of 14 Nu Way customers in 2014 were customers of appellant's.

{¶ 50} The standard of review regarding the grant of an injunction and declaratory relief is whether the trial court abused its discretion. Varjaski v. Pearch , 7th Dist. No. 04 MA 235, 2006-Ohio-5268, 2006 WL 2846296, ¶ 9 citing Perkins v. Quaker City , 165 Ohio St. 120, 133 N.E.2d 595 (1956). Abuse of discretion implies that the court acted in an unreasonable, arbitrary, or unconscionable manner. State ex rel. Sartini v. Yost , 96 Ohio St. 3d 37, 2002-Ohio-3317, 770 N.E.2d 584.

{¶ 51} A party seeking an injunction must demonstrate two elements: the injunction is necessary to prevent irreparable harm and the party does not have an adequate remedy at law. Consol. Land Co. v. Capstone Holding Co. , 7th Dist. No. 02-BA-22, 2002-Ohio-7378, 2002 WL 34714571, ¶ 62 citing P & G v. Stoneham , 140 Ohio App.3d 260, 747 N.E.2d 268 (1st Dist. 2000). The party must prove these elements by clear and convincing evidence. Id. "Clear and convincing evidence is that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Id. citing Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954).

{¶ 52} In its judgment entry dated May 26, 2016, the trial court ordered Johnston to not be engaged in the industrial waste brokerage business within Mahoning County, Ohio for 18 months. Furthermore, Johnston was enjoined from communicating in any fashion with appellant's customers for six months.

{¶ 53} It is undisputed that Johnston was an employee of appellant's who then terminated her employment with appellant and then began working for Nu Way. It is also undisputed that Nu Way was in the same or in a substantially similar business to appellant. The jury returned a verdict that Johnston misappropriated appellant's trade secrets, specifically, information relating to appellant's job bidding process and bid quote formulas. Moreover, the only remedy available to appellant at law to prevent Johnston from using whatever trade secrets she acquired against appellant is to seek an injunction. Ultimately, the trial court did not abuse its discretion with regards to issuing an injunction against Johnston.

{¶ 54} Furthermore, exhibit 1, the employment agreement between appellant and Johnston, contains two provisions concerning Johnston's termination of her employment with appellant. The first states "Employee agrees that all new accounts obtained by employee are the property of PESI during employment and for 3 years after if employee is terminated or willfully quits." The second states "Employee agrees that if terminated or willfully quits PESI that if employed by another * * * waste management type firm in similarity of PESI that there will not be any solicitation of any accounts that are or were property of PESI for 3 years after last day of employment with PESI." The trial court's injunction appears to have fallen within the terms of the non-compete provisions of Johnston's employment agreement and extended beyond said provisions when it was found that Johnston was liable for misappropriating appellant's trade secrets. Ultimately, the trial court did not abuse its discretion by issuing an injunction against Johnston.

{¶ 55} According, appellees' second assignment of error is without merit and overruled.

{¶ 56} For the reasons stated above, the trial court's granting of appellees' Civ.R. 50 motion regarding appellant's customer lists not qualifying as a trade secret is hereby reversed and remanded for a new trial on that issue alone. The balance of the trial court's decision is hereby affirmed.

DeGenaro, J., concurs.

Robb, P.J., concurs.


source: Caselaw Access Project

license: Public Domain

text:
    COLFOR MANUFACTURING, INC., Appellant/Petitioner, v. OHIO CIVIL RIGHTS COMMISSION, et al., Appellees/Respondents.
    NO. 16 CA 0912
    Court of Appeals of Ohio, Seventh District, Carroll County.
    Dated: December 28, 2017
    Attorney Gust Callas, Attorney Whitney L. Willits, 220 Market Avenue South, Suite 1000, Canton, Ohio 44702, For Appellant/Petitioner
    Attorney David A. Oppenheimer, Ass't Attorney General, 615 W. Superior Ave., 11th, Floor, Cleveland, Ohio 44113, For Appellees/Respondents
   JUDGES: Hon. Gene Donofrio, Hon. Cheryl L. Waite, Hon. Carol Ann Robb

OPINION

DONOFRIO, J.

{¶ 1} Appellant, Colfor Manufacturing, Inc., appeals from a Carroll County Common Pleas Court judgment approving the final order of appellee, the Ohio Civil Rights Commission, finding that Colfor engaged in disability discrimination in violation of Ohio's Civil Rights Act when it failed to make a reasonable accommodation for appellee, Jason Ott.

{¶ 2} Colfor is in the business of forging steel parts for the automotive industry. Forging involves taking pieces of steel, known as "billets," and putting them through presses that forge them into automotive parts. Presses can either be "hot" or "cold." Hot presses heat the billets to such a temperature that they must be handled with tongs. Cold presses also heat the billets but to a lower temperature where they can be handled with gloved hands. Presses are run by forge press operators (FPOs).

{¶ 3} In 2010, Colfor had plants in Malvern, Salem, and Minerva. Jason Ott began working at the Malvern plant in 1994 as a temporary employee and later became a full-time employee. In 2005, Ott bid into an FPO position at the Malvern plant. In 2006, Ott bid into a "CNC" machine operator position at the Salem plant. In 2007, Ott bid into an FPO position at the Salem plant.

{¶ 4} In 2009, Ott began to experience painful swelling in his right arm. He sought treatment with his doctor, who recommended that Ott only work 40 hours per week and not work hot jobs for two months. Colfor honored Ott's restrictions.

{¶ 5} On April 1, 2010, Ott experienced stroke-like symptoms while at work.

{¶ 6} Later in April 2010, Colfor announced that it would be ceasing operations at the Salem plant. Colfor negotiated an agreement with Ott's union regarding the closure of the Salem plant and the jobs that would be moved from Salem to Malvern and Minerva. Per the agreement, union members would be able to bid on available positions at Malvern and Minerva.

{¶ 7} Shortly thereafter, Ott was diagnosed with multiple sclerosis and was off from work for a period of time. Ott treated with neurologist Dr. Andrew Stalker, who recommended that due to Ott's heat sensitivity he should not work "hot jobs" and should not work more than 40 hours per week. On July 26, 2010, Colfor received a letter from Dr. Stalker containing these restrictions. Also on July 26, Dr. Michael Marvin, at Colfor's request, performed a fitness for duty exam on Ott to determine if Ott was able to return to work. Dr. Marvin agreed that Ott could return to work with restrictions that he not work around the hot presses and not work more than 40 hours per week.

{¶ 8} Ott returned to work at Salem on August 2, 2010. Ott's foreman assigned him to working only cold presses in compliance with his medical restriction.

{¶ 9} On September 14, 2010, Colfor posted a Notice of Job Opening for ten FPOs needed at the Malvern plant. The next day, Ott submitted a bid for the positions. Per the union contract, positions were to be awarded on the basis of seniority. On September 24, 2010, Tim Moran, Colfor's human resources director, posted a list of successful bidders for the FPO positions at Malvern. Ott was not one of them. Among the successful bidders were nine employees from Salem with less seniority than Ott.

{¶ 10} Ott spoke to his foreman who in turn spoke to Moran. On October 1, 2010, Ott received a memo from Moran stating that he was not awarded one of the FPO positions at Malvern because of his restriction of not being able to work hot jobs. Moran's memo further stated the restriction would prevent Colfor from assigning work effectively and efficiently through job rotation.

{¶ 11} On October 21, 2010, Ott, accompanied by his union president, had a meeting with Moran. Ott brought a Request for Accommodation letter, but Moran would not accept it without a signed release to discuss Ott's medical information. Ott subsequently mailed Moran the Request for Accommodation letter, which Moran received on November 1, 2010.

{¶ 12} On November 2, 2010, Colfor posted notices for two CNC machine operator positions and eight FPO positions at Malvern. Ott submitted bids for both positions. Ott was denied the FPO position but was awarded the CNC machine operator position, which had a lower hourly wage.

{¶ 13} On November 12, 2010, Moran sent Ott a letter stating that since Ott's doctor had not viewed the Malvern plant, the doctor would need to explain what a "hot job" meant and that Moran was available to meet with the doctor regarding Ott's restrictions.

{¶ 14} Ott then retained counsel. Ott's counsel sent Moran four letters between December 10, 2010 and January 13, 2011, containing a signed medical release, a report from Dr. Stalker, and Dr. Stalker's recommendation that Ott not work in environments where the temperature exceeded 90 degrees. Moran did not respond to any of these letters.

{¶ 15} On March 2, 2011, Ott filed a discrimination charge with the Ohio Civil Rights Commission (Commission). Ott alleged that Colfor denied him an FPO position due to his disability. The Commission conducted a preliminary investigation, which resulted in a probable cause finding. The parties attempted to conciliate the allegation, but were unsuccessful. The Commission then filed a complaint against Colfor in February 2012.

{¶ 16} The matter proceeded to a five-day hearing before an administrative law judge (ALJ) that concluded on June 23, 2014. The ALJ subsequently issued her report in July 2015, recommending that the Commission find that Colfor violated Ohio's civil rights laws. Colfor filed objections, which were heard before the Commission. The Commission rejected the objections and adopted the ALJ's report. It issued a final order requiring Colfor to cease its unlawful conduct, to provide appropriate relief to Ott, to properly train its employees, and to adopt proper anti-discrimination policies.

{¶ 17} Colfor filed an appeal in the trial court. The trial court reviewed the record and the parties' briefs. It found reliable, probative, and substantial evidence supported the Commission's conclusion that Colfor violated the civil rights laws.

{¶ 18} The trial court noted that Colfor did not dispute that Ott's multiple sclerosis is a disability. It found that Colfor was notified that Ott had a medical condition that required the accommodations of no hot jobs and no more than 40 hours per week. The court noted that Colfor honored these accommodations at the Salem plant. The court further found that Ott met the FPO qualifications as was evidenced by Ott performing the job in Salem. And it pointed to Moran's testimony that but for Ott's restriction of no hot jobs, he would have received the FPO job in Malvern. Based on these findings, the court determined that the Commission made a prima facie showing of discrimination.

{¶ 19} The trial court went on to find there was reliable, probative, and substantial evidence that Colfor was responsible for failing to properly engage in the interactive process. It noted that Ott met his obligation under the law when he notified Colfor of his condition and need for an accommodation. When Ott bid on the FPO position at Malvern, the court found Moran had the obligation to either honor Ott's accommodation or initiate the interactive process with Ott to see what could be done. The court found that Moran did neither. It found that Moran assumed that all employees transferring from Salem were going to be required to work hot jobs. The court further found that Ott attempted to communicate with Moran about his condition and what jobs he could perform but Moran refused to take any responsibility for determining if Colfor could accommodate him.

{¶ 20} The trial court next found there was reliable, probative, and substantial evidence that Colfor could have accommodated Ott. It noted that Ott had been successfully performing the FPO job in Salem with the restrictions set by his doctors. Additionally, the court pointed to testimony that Salem employees who received the FPO positions at Malvern did not all have to work on hot presses at Malvern.

{¶ 21} Finally, the trial court found Colfor did not substantiate its "direct threat" defense. The court noted that beginning in November 2010, Ott worked as a CNC machine operator at Malvern. It noted that Ott continued to work there through the hearing date and there was no evidence that he suffered any injury or caused Colfor any liability. The court also pointed to evidence that the temperatures Ott was exposed to as a CNC machine operator were equivalent to, or greater than, those he would have been exposed to had he been working on a cold press.

{¶ 22} Based on the above, the trial court affirmed the ALJ's finding of disability discrimination. Thus, the trial court ordered that Colfor must place Ott in the next available FPO position and accommodate his restrictions of no hot jobs and no more than 40 hours per week. The court also ordered that Ott was entitled to back pay, but that his earnings from his CNC machine operator position were to be subtracted from his back pay award. The court stated that difference in pay was $70 per week from November 15, 2010 until Colfor offered Ott an FPO position.

{¶ 23} Colfor filed a timely notice of appeal on December 13, 2016. Colfor now raises a single assignment of error.

{¶ 24} Colfor's sole assignment of error states:

THE TRIAL COURT ABUSED ITS DISCRETION IN APPROVING THE FINAL ORDER OF THE OCRC, AS THE FINAL ORDER IS NOT SUPPORTED BY RELIABLE, PROBATIVE, AND SUBSTANTIAL EVIDENCE.

{¶ 25} In an appeal from a trial court's judgment affirming a decision of the Ohio Civil Rights Commission, we are to determine whether the trial court abused its discretion in finding that there was reliable, probative, and substantial evidence to support the Commission's order. Ohio Civ. Rights Comm. v. Case W. Res. Univ. , 76 Ohio St.3d 168, 177, 1996-Ohio-53, 666 N.E.2d 1376. An abuse of discretion connotes an attitude on the part of the court that is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 26} Pursuant to R.C. 4112.02(A), it is an unlawful discriminatory practice for an employer to discriminate against any person on any employment-related matter on the basis of disability. "An employer must make reasonable accommodation to the disability of an employee or applicant, unless the employer can demonstrate that such an accommodation would impose an undue hardship on the conduct of the employer's business." Ohio Adm.Code 4112-5-08(E)(1).

{¶ 27} Colfor makes four arguments in support of its assignment of error.

{¶ 28} First, Colfor argues the ALJ improperly excluded two key pieces of evidence: (1) Ott's deposition transcript and (2) certified weather records, which Colfor claimed related to humidity at Malvern and its effects on Ott's body temperature. Colfor asserts Ott's testimony before the ALJ contradicted his deposition testimony. Specifically, it states that at his deposition Ott stated that he could not recall ever telling anyone at Colfor that Dr. Stalker did not feel qualified to say which jobs Ott could or could not perform. But at the hearing Ott testified that he told his foreman and the plant manager that his doctor was not an expert and would not come to the plant. (Tr. 388-390). Colfor also asserts the ALJ erred by not admitting the certified weather records reflecting the humidity in the area. It points out that Ott's restrictions of not working in temperatures above 90 degrees do not indicate if the maximum temperature factors in the humidity or not.

{¶ 29} At a Commission hearing, the administrative law judge "shall not be bound by the Ohio rules of evidence, but shall take into account all reliable, probative and substantial evidence. Irrelevant, immaterial, unreliable, and unduly repetitious evidence may be excluded." Ohio Adm.Code 4112-3-07(H)(2).

{¶ 30} Ott's deposition was unduly repetitious. Ott was at the hearing and testified. As the Commission points out, Colfor had a copy of Ott's deposition at the hearing and used it to cross examine him. Any inconsistencies between Ott's deposition and his hearing testimony could be brought out during Colfor's cross examination. There was no need to admit the deposition transcript into evidence.

{¶ 31} The climate records were both irrelevant and immaterial. The temperatures at the Akron-Canton Airport do not reflect the temperatures inside the Malvern plant or what the temperatures were near the hot and cold presses.

{¶ 32} Thus, Colfor's first argument lacks merit.

{¶ 33} Second, Colfor argues the Commission did not meet its burden of proving that Ott was an otherwise qualified person capable of safely and substantially performing the essential functions of an FPO at Malvern. It contends the ALJ and the trial court incorrectly found that Ott's only restriction was not to work "hot" jobs. Yet it asserts Ott had numerous restrictions that were unclear. Colfor cites to the following restrictions given by Dr. Stalker or Dr. Marvin: "no 'hot' jobs", "not hot environments", "room temperature less than 85 degrees", "not around hot presses because of heat intolerance", "avoid hot presses", "should not be working in hot environments where the temperature is greater than 90 degrees." Colfor argues the different words used create different restrictions. For instance, if Ott was operating a cold press he might still be "around" hot presses and in violation of his restriction. Therefore, Colfor argues it was unclear which presses Ott could safely and substantially operate. And consequently, Colfor argues, there was no reliable evidence that Ott could safely and substantially perform the Malvern FPO job.

{¶ 34} Moreover, Colfor asserts that Ott's condition is unpredictable. It points to Ott's testimony that he drops things at work, does not grocery shop, does not do yard work, and cannot play with his daughter for extended times. (Tr. 358-359, 144-149). It further notes that during his deposition, Ott had an episode and needed a break. (Tr. 153).

{¶ 35} Additionally, Colfor contends the FPO position, as it existed at Salem, does not exist at Malvern. It asserts the ALJ and the trial court based their conclusions on the fact that Colfor was able to accommodate Ott at Salem. But it states that a majority of the presses at Salem were cold presses and the hot presses that Salem did operate were housed in a separate building. Thus, Colfor states it was able to meet Ott's restriction at Salem. But at Malvern, Colfor states, the majority of the presses are hot and the hot and cold presses are housed together. Given these differences, Colfor argues the trial court erred in finding that because Colfor could accommodate Ott at Salem it could also accommodate him at Malvern.

{¶ 36} In a disability discrimination case asserting failure to accommodate, the plaintiff must demonstrate that (1) he was disabled; (2) the employer was aware of the disability; and (3) he was an otherwise qualified disabled person, satisfied the prerequisites for the position, and could perform the essential functions of the job with or without reasonable accommodation. Shaver v. Wolske & Blue , 138 Ohio App.3d 653, 663-664, 742 N.E.2d 164, 171 (10th Dist.2000).

{¶ 37} In this case, Colfor did not dispute that Ott was disabled by way of his multiple sclerosis or that it was aware of Ott's disability. The only questions surrounded whether Ott was otherwise qualified, whether he satisfied the prerequisites for the FPO position, and whether he could perform the essential functions of the FPO job with or without reasonable accommodation.

{¶ 38} The evidence supports the trial court's determination that there was reliable, probative, and substantial evidence that Ott was an otherwise qualified person capable of safely and substantially performing the essential functions of an FPO at Malvern.

{¶ 39} Ott testified that after being off work for several months and being diagnosed with multiple sclerosis, he returned to work at Salem on August 2, 2010. (Tr. 161). When he returned to work, Ott was still working as an FPO. (Tr. 155). He testified he was able to continue to perform his job duties as an FPO despite the summer heat. (Tr. 155). Ott testified that before he returned to work, he saw a company doctor, Dr. Marvin, at Colfor's request to determine if he was fit to return to work. (Tr. 160). The company doctor found Ott to be fit to return to work with the restrictions of "avoid hot presses" and only 40-hour work weeks. (Tr. 159-160). Dr. Stalker, Ott's neurologist, gave the almost identical restrictions of "no hot jobs" and only 40-hour work weeks. (Tr. 160-161).

{¶ 40} Ott testified that his supervisor honored his restrictions. (Tr. 161-162). He did not work on any hot presses. (Tr. 161-162). Ott continued to perform the FPO job at Salem until November 2010, when he left Salem for Malvern due to Salem's closing.

{¶ 41} Ott was a successful bidder for a CNC machine operator position at Malvern. (Tr. 210). He began in the CNC position in November 2010, and continued in that position through the time of the hearing. (Tr. 210).

{¶ 42} In addition to Ott's testimony that he was able to perform the FPO job at Salem with his restrictions honored, several witnesses' testimony indicated that Colfor could have likewise accommodated Ott at Malvern.

{¶ 43} Daniel Bergman has been an FPO at Malvern for 17 years. (Tr. 46). Bergman testified that at Malvern, more than half of the FPOs work only cold presses. (Tr. 47). Bergman opined that if an FPO could not operate a hot press, he could still work as an FPO at Malvern on only cold presses. (Tr. 47-48). Bergman also testified that he had an opportunity to observe the FPOs at Salem for three days. (Tr. 50). He testified that from what he observed, what the FPOs did at Salem was the same as what they did at Malvern. (Tr. 50). Finally, Bergman stated that when Salem closed and numerous FPOs moved to Malvern, some of them went to work on cold jobs. (Tr. 51).

{¶ 44} Victor Culberson has been an FPO at Malvern for 25 years. (Tr. 59-60). He testified that during his time at Malvern, he has seen some FPOs stay on cold jobs and never rotate to hot jobs. (Tr. 62). In fact, Culberson stated that he mostly works cold jobs. (Tr. 65).

{¶ 45} Alva Powell, the union president at the time, testified that he believed there were presses at Malvern that Ott could have operated in 2010, when he was denied the FPO position. (Tr. 503).

{¶ 46} And Thomas Fry, the plant manager at Malvern during the relevant time, testified that some FPOs remain on cold presses without ever rotating onto hot presses. (Tr. 236). Moreover, he testified that if an FPO had a restriction of not being able to operate hot presses in 2010, he would have tried to accommodate that restriction. (Tr. 245-249).

{¶ 47} Evidence was also presented that the temperatures in the area known as "The Hill," where the CNC machine operators including Ott worked, were comparable to other areas of the Malvern plant where various cold presses were located. (Tr. 432-433, 438-439; Comm. Ex. 44; Respondent Ex. 44).

{¶ 48} Given this evidence, we cannot conclude that the trial court abused its discretion in finding that there was reliable, probative, and substantial evidence to support the Commission's order. There was evidence that Ott successfully performed the FPO position at Salem with the accommodations of no hot jobs and a 40-hour work week. There was also evidence that not all FPOs at Malvern worked hot jobs. In fact, the evidence was that some FPOs worked strictly cold jobs. Additionally, there was testimony from the plant manager that he would have tried to accommodate Ott's restriction of no hot jobs had Ott been awarded one of the FPO jobs at Malvern. And there was evidence that Ott has been working as a CNC machine operator since November 2010, at Malvern in temperatures comparable to those in various areas where cold presses are located. Based on the above, the trial court did not abuse its discretion.

{¶ 49} Thus, Colfor's second argument is without merit.

{¶ 50} Third, Colfor argues the evidence does not support a finding that Colfor failed to grant Ott a reasonable accommodation. It claims that Ott's bid for the FPO position at Malvern was not a request for an accommodation. It asserts that only after an employee requests an accommodation is the employer's duty to engage in the interactive process triggered. Colfor argues that by simply bidding on the Malvern position in the fall of 2010, Ott did not make a request for an accommodation. Colfor claims the earliest Ott could have put it on notice that he was seeking an accommodation was at an October 21, 2010 meeting. Thus, Colfor claims the ALJ could not consider its actions or inactions prior to this date.

{¶ 51} Colfor goes on to argue that it attempted in good faith to ascertain the scope of Ott's restrictions and his ability to be an FPO. It points to Moran's testimony that at the October 21, 2010 meeting, he explicitly requested further information from Ott's doctor regarding his ability to operate the presses at Malvern in light of the plant layout. It also points to a November 1, 2010 letter from Moran to Ott in which he sought more specific information from Ott's doctor and stated that he was available to meet with Dr. Stalker to discuss what accommodations were necessary. Colfor argues these actions demonstrate its good faith effort.

{¶ 52} Colfor next asserts the interactive process broke down due to Ott's failure to provide the information Moran requested. It further points out that neither Ott nor Dr. Stalker ever told it which presses Ott could safely operate. Moreover, Colfor argues, Ott never suggested a reasonable accommodation, which was his burden.

{¶ 53} When an employee requests an accommodation, the employer's obligation to participate in the interactive process of seeking an accommodation is triggered. Shaver v. Wolske & Blue , 138 Ohio App.3d 653, 664, 742 N.E.2d 164 (10th Dist.2000). "The employer is to initiate an informal, interactive process with the employee before denying a reasonable accommodation to a disabled employee." Barber v. Chestnut Land Co. , 7th Dist. No. 15 MA 39, 2016-Ohio-2926, ¶ 72, 63 N.E.3d 609, fn. 4.

{¶ 54} The employee has the burden to propose an accommodation that is objectively reasonable. Matasy v. Youngstown Ohio Hosp. Co., LLC, 7th Dist., 2017-Ohio-7159, 95 N.E.3d 744, ¶ 23. The employer then has the burden to demonstrate such accommodation would impose an undue hardship in conducting its business. Id.

{¶ 55} The evidence supports the trial court's determination that there was reliable, probative, and substantial evidence that Colfor failed to grant Ott a reasonable accommodation.

{¶ 56} In a July 28, 2010 letter, Ott's neurologist Dr. Stalker reported that Ott could return to work with the restrictions of "No hot jobs and only work 40 hours per week. These restrictions are permanent." (Commission Ex. 19).

{¶ 57} Moreover, after Ott was diagnosed with multiple sclerosis by his neurologist, Colfor requested that Ott submit to a physical by Dr. Marvin, to assess his fitness to return to work. On July 28, 2010, Dr. Marvin's report was faxed to Tim Moran at Colfor. In this report, Dr. Marvin stated:

He [Ott] has been diagnosed with multiple sclerosis. * * * Dr. Stalker, the neurologist, is asking to be on restriction to 40 hours a week with not being around hot presses because of the heat sensitivity that he has now.
* * *
Plan: Now that Mr. Ott has adjusted his medications, I believe he will be able to return to his normal work activity except for 40 hours a week, and not around hot presses because of the heat intolerance he has at this time.

(Commission Ex. 20).

{¶ 58} Thus, there was reliable evidence that on July 28, 2010, at the latest, Colfor was put on notice that Ott had a disability by way of his multiple sclerosis and was requesting the accommodations of not working hot presses and not working more than 40 hours a week. At this point in time then, Colfor was required to engage in the interactive process with Ott.

{¶ 59} Colfor accommodated Ott's restrictions while he worked as an FPO at Salem. The fact that Salem closed and Ott bid on the same FPO position at Malvern would not change Colfor's duty to engage in the interactive process with Ott.

{¶ 60} Ott testified when he was denied the FPO position at Malvern, no one from Colfor contacted him to talk about his restrictions or any concerns Colfor might have had. (Tr. 168).

{¶ 61} Moran testified that at the October 21, 2010 meeting, he requested that Ott provide him with information from his doctor. (Tr. 581). He stated that he later requested to meet with Ott's doctor. (Tr. 581). Moran claimed that he never received the information he sought from Dr. Stalker. (Tr. 599). Moran claimed Ott's restrictions could not be accommodated at Malvern because the plant layout was different than Salem and Malvern had more hot presses than Salem did. (Tr. 577, 586).

{¶ 62} Yet Moran testified that he was the one who made the decision that Ott would not be awarded an FPO position at Malvern. (Tr. 583). Moran testified that he made that decision based on Ott's restrictions. (Tr. 583). Specifically, Moran informed Ott he did not award him an FPO position "based on 'permanent' work restrictions, which restricts you from operating 'hot' jobs." (Tr. 704; Commission Ex. 27). Before making this decision, Moran did not contact Ott to discuss his restrictions, he did not seek clarification on the restrictions, he did not contact Ott's supervisor at Salem regarding his restrictions, he did not contact anyone from the union regarding the restrictions, and he did not look into whether there were cold presses Ott could operate at Malvern. (Tr. 685-687).

{¶ 63} Ott testified that at the October 21, 2010 meeting, he attempted to give Moran a letter from Dr. Stalker but Moran refused to accept it without a medical release. (Tr. 186-188). Ott subsequently mailed the letter to Moran, which Moran acknowledged in his November 12, 2010 response. (Commission Ex. 36). In his response letter, Moran stated that Dr. Stalker would have to explain what "no hot jobs" meant and again asked for a medical release. (Commission Ex. 36). By letter dated December 10, 2010, Ott provided Moran with a signed medical release. (Tr. 213; Commission Ex. 37). Moran did not respond. (Tr. 214). Next, in a letter dated December 31, 2010, Ott's attorney requesting information from Moran and requesting that Ott be returned to an FPO position. (Tr. 215; Commission Ex. 38). Again, Moran did not respond. (Tr. 215). Ott's attorney sent a follow-up letter dated January 6, 2011, including further information from Dr. Stalker. (Tr. 215; Commission Ex. 39). Again, Moran did not respond. (Tr. 216). Finally, in a letter dated January 13, 2011, Ott's attorney indicated that if he did not receive a response from Moran, he would interpret this as a rejection of Ott's requested accommodation and urged Moran to participate in the interactive process. (Tr. 216; Commission Ex. 40). Moran did not respond. (Tr. 216).

{¶ 64} Given the above evidence, we cannot conclude that the trial court abused its discretion in finding there was reliable, probative, and substantial evidence that Colfor failed to grant Ott a reasonable accommodation. Colfor was well aware of Ott's disability and request for accommodation in July 2010. In fact, Colfor had been accommodating Ott's restriction at Salem. Ott's transfer from Salem to Malvern did not require him to start over by requesting an accommodation again. Thus, when Ott bid on the FPO position at Malvern, Moran was in a position to engage in the interactive process. Moran knew of Ott's restriction and denied him the FPO position on this basis alone. Before denying Ott the FPO position, Moran never inquired about Ott's restriction or whether it could be accommodated at Malvern.

{¶ 65} Thus, Colfor's third argument lacks merit.

{¶ 66} Fourth and finally, Colfor argues that even if Ott's claim of disability discrimination succeeds, Ott is not entitled to back pay because he failed to mitigate his damages. Colfor cites to eight different job postings it had at Malvern between October 12, 2010 and December 13, 2012, that it claims Ott could have obtained and which all pay the same or more as an FPO. In fact, Colfor argues, Ott and the Commission conceded that Ott should have bid on the coating line operator position posted on May 8, 2012.

{¶ 67} In an action to recover compensation for a period of wrongful exclusion from employment, the employer may assert the affirmative defense of failure to mitigate damages. Cavins v. S & B Health Care, Inc., 2d Dist., 2015-Ohio-4119, 39 N.E.3d 1287, ¶ 116. The burden of proof on this affirmative defense in on the employer. Id. , citing State ex rel. Martin v. City of Columbus, Dept. of Health , 58 Ohio St.2d 261, 389 N.E.2d 1123 (1979), paragraph three of the syllabus. The purpose of the affirmative defense of mitigation of damages is to prevent an award for damages that could have been avoided " 'by reasonable affirmative action by the injured party without substantial risk to such party.' " Id. , citing Czarnecki v. Basta , 112 Ohio App.3d 418, 423, 679 N.E.2d 10 (8th Dist.1996).

{¶ 68} Colfor posted eight jobs that it argues Ott should have bid on to mitigate his damages. Ott explained why he did not bid on seven of those jobs.

{¶ 69} Jobs were posted on April 25, 2011, July 28, 2011, January 23, 2012, and March 13, 2012, for die setter positions that paid more than the FPO position. (Tr. 333-334, 337, 341, 342). Ott explained that he did not bid on these jobs because they went against his restriction of no hot jobs. (Tr. 334).

{¶ 70} A job was posted on October 12, 2010, for a CNC technician journeyman. (Tr. 343). Ott explained that he did not bid on the position because it required a high school diploma, which he did not have. (Tr. 343-344).

{¶ 71} A job was posted on June 8, 2011, for a maintenance electrician journeyman. (Tr. 344). Ott explained that the people in this position work 12-hour days, seven days a week and he would not be able to handle that type of schedule. (Tr. 344-345).

{¶ 72} A job was posted on October 19, 2010 for a maintenance mechanic journeyman. (Tr. 345). Ott explained that this job required a high school diploma and working seven days a week. (Tr. 345-346).

{¶ 73} One job was posted that Ott conceded that he should have bid on. A job was posted on May 8, 2012, for a coating line operator. (Tr. 346). This job paid the same as or slightly more than an FPO. (Tr. 348). Ott explained that he did not think he would be awarded the position because he thought someone with more seniority would bid on it. (Tr. 377-378). Ott conceded that he should have bid on this position because he could have been a successful bidder. (Tr. 347).

{¶ 74} It is important to point out that soon after he learned that he had not been awarded one of the FPO positions, Ott bid on the CNC machine operator position. Ott found out on September 24, 2010, that he did not receive one of the FPO positions. (Commission Ex. 26). On November 5, 2010, he bid on the CNC machine operator position. (Tr. 208; Commission Ex. 31). Ott explained that he bid on the CNC position because it seemed that Colfor was not going to honor his restriction for the FPO position and he wanted to secure a job at the Malvern plant before the Salem plant shut down. (Tr. 208). Ott was awarded that position and began working as a CNC machine operator on November 15, 2010. (Tr. 210; Commission Ex. 32). The CNC machine operator position pays $15.60 an hour. (Commission Ex. 32). That is $1.75 less per hour than the FPO position, which pays $17.35 per hour. (Tr. 165).

{¶ 75} Ott additionally bid on another set of eight FPO positions in November 2010. (Tr. 209). He was not awarded one of those positions. (Tr. 209; Commission Ex. 33).

{¶ 76} The trial court did not abuse its discretion regarding the mitigation of damages. Colfor did not meet its burden of proving that Ott failed to mitigate his damages. Colfor tried to show that there were eight different positions that Ott could have, and failed to, bid on at Malvern that would have mitigated his damages. But for seven out of the eight positions, Ott was either not qualified for the position or he knew he would not be able to perform the position given his disability. Moreover, Ott did bid on and receive a CNC machine operator position just two months after being denied the FPO position. And he also bid on another set of FPO positions for which he was denied. Thus, reliable, probative, and substantial evidence supports the Commission's order.

{¶ 77} Accordingly, Colfor's fourth argument fails.

{¶ 78} Because none of Colfor's arguments are meritorious, Colfor's sole assignment of error is without merit and is overruled.

{¶ 79} For the reasons stated above, the trial court's judgment is hereby affirmed.

Waite, J., concurs.

Robb, P.J., concurs.