NAILAH K. BYRD
`
`CUYAHOGA COUNTY CLERK OF COURTS
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`1200 Ontario Street
`
`Cleveland, Ohio 44113
`
`Court of Common Pleas
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`New Case Electronically Filed: COMPLAINT
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`May 17,2023 16:20
`
`By: NATALIE D. DAVIS 0102476
`
`Confirmation Nbr. 2860338
`
`ROBERT HURLEY
`
`CV 23 979615
`
`vs.
`
`KELLEY STEEL ERECTORS ET AL.
`
`Judge: PETER J. CORRIGAN
`
`Pages Filed: 9
`
`Electronically Filed 05/17/2023 16:20 / / CV 23 979615 / Confirmation Nbr. 2860338 / CLCEJ
`
`
`
`CUYAHOGA COUNTY CLERK OF COURTS
`
`1200 Ontario Street
`
`Cleveland, Ohio 44113
`
`Court of Common Pleas
`
`New Case Electronically Filed: COMPLAINT
`
`May 17,2023 16:20
`
`By: NATALIE D. DAVIS 0102476
`
`Confirmation Nbr. 2860338
`
`ROBERT HURLEY
`
`CV 23 979615
`
`vs.
`
`KELLEY STEEL ERECTORS ET AL.
`
`Judge: PETER J. CORRIGAN
`
`Pages Filed: 9
`
`Electronically Filed 05/17/2023 16:20 / / CV 23 979615 / Confirmation Nbr. 2860338 / CLCEJ
`
`
`
`IN THE COURT OF COMMON PLEAS
`
`CUYAHOGA COUNTY, OHIO
`
`) )
`
` CASE NO.:
`
`) )
`
` JUDGE:
`
`) ) )
`
` COMPLAINT
`
`Robert Hurley
`
`543 Covington Lane
`
`Auburn Township, Ohio 44023
`
`Plaintiff,
`
`vs.
`
`)
`
`(Jury Demand Endorsed Hereon)
`
`) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
`
`Kelley Steel Erectors
`
`7220 Division Street
`
`Cleveland, Ohio 44146-5406
`
`Frank Diener
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`C/O Kelley Steel Erectors
`
`7220 Division Street
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`Cleveland, Ohio 44146-5406
`
`Michael Kelley
`
`C/O Kelley Steel Erectors
`
`7220 Division Street
`
`Cleveland, Ohio 44146-5406
`
`Defendants.
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`NOW COMES Plaintiff, Robert Hurley (“Plaintiff’ or “Hurley”), by and through
`
`undersigned counsel, and for his Complaint against Defendant Kelley Steel Erectors (“Defendant”
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`or “Kelley Steel”), Defendant Frank Diener (“Defendant Diener” or “Diener”), and Defendant
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`Michael Kelley (“Defendant Kelley” or “Kelley”) and hereby states as follows:
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`THE PARTIES, JURISDICTION, AND VENUE
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`1.
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`Plaintiff, Robert Hurley, is a citizen of the State of Ohio, residing in Geauga
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`County, Ohio. Mr. Hurley is a “person” and an “employee” as those terms are defined under O.R.C.
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`§ 4112.01. Mr. Hurley is, and was at the time of his termination, a man over the age of forty years
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`Electronically Filed 05/17/2023 16:20 / / CV 23 979615 / Confirmation Nbr. 2860338 / CLCEJ
`
`
`
`old. At all times relevant herein, Mr. Hurley was employed by Defendant in Cuyahoga County,
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`Ohio.
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`2.
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`Defendant Kelley Steel Erectors is an Ohio corporation with its principal place of
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`business in Cuyahoga County, Ohio. Kelley Steel is a “person” and an “employer” as those terms
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`are defined under O.R.C. § 4112.01.
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`3.
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`Defendant Frank Diener is a “person” and an “employer” as those terms are defined
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`under O.R.C. § 4112.01.
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`4.
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`Defendant Michael Kelley is a “person” and an “employer” as those terms are
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`defined under O.R.C. § 4112.01.
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`VENUE AND JURISDICTION
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`5.
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`This Court has jurisdiction over Plaintiff's claims insofar as they arise under Ohio
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`statutory and common law.
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`6.
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`Venue is proper in this Court pursuant to Civ. R. 3(b)(3) and (6) because
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`Defendants conducted activity giving rise to Plaintiff's claim for relief in Cuyahoga County; and,
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`because all or part of Plaintiff's claim for relief arose in Cuyahoga County.
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`FACTUAL ALLEGATIONS
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`7.
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`Plaintiff, Robert Hurley, is sixty-nine (69) years old.
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`8.
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`Kelley Steel hired Mr. Hurley in 1978 as an accountant.
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`9.
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`Since the retirement of Kelley Steel’s founder and owner in , Mr. Hurley played an
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`integral role in leading and managing the Company.
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`10.
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`Mr. Hurley has served as Chief Operating Officer (COO) for nearly twenty-three
`
`years.
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`Electronically Filed 05/17/2023 16:20 / / CV 23 979615 / Confirmation Nbr. 2860338 / CLCEJ
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`
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`11.
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`In September 2022, former company president Mike Kelley (“Kelley”) approached
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`Mr. Hurley and asked when he planned to retire.
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`12.
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`Mr. Hurley indicated that he planned to retire on or about March 31, 2023, to
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`complete his forty-five years of service to the company.
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`13.
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`Mr. Hurley proposed a retirement agreement to Mr. Kelley and current company
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`president Frank Diener to include one week of severance for each year of service, totaling forty-
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`five weeks of severance, and some additional terms.
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`14.
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`Despite Mr. Hurley approaching both Mr. Kelley and Mr. Diener to continue
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`discussions on his retirement, Mr. Kelley and Mr. Diener refused to engage with Mr. Hurley and
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`insisted that they had not further discussed his retirement.
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`15.
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`On December 2, 2022, Mr. Hurley received a letter from Mr. Diener which stated
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`that Kelley Steel would accept his retirement as of December 31, 2022.
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`16.
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`Mr. Hurley did not resign, ever.
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`17.
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`Mr. Hurley’s discussions regarding “retirement” were always prompted by Mr.
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`Kelley and premised upon a mutually agreeable severance package. Otherwise, it was Mr.
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`Hurley’s intent to continue to work.
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`18.
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`On December 5, 2022, Mr. Hurley called Mr. Diener and informed him that he had
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`not resigned.
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`19.
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`During the December 5, 2022 phone call, Mr. Hurley attempted to negotiate an exit
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`in good faith with Mr. Diener.
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`20.
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`On December 7, 2022, Mr. Hurley sent Mr. Diener a new proposal for severance.
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`21.
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`On December 9, 2022, Mr. Diener called Mr. Hurley and rejected his severance
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`proposal, counteroffering $15,000.
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`Electronically Filed 05/17/2023 16:20 / / CV 23 979615 / Confirmation Nbr. 2860338 / CLCEJ
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`
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`22.
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`Mr. Hurley explained to Mr. Diener that the $15,000 was wholly inadequate given
`
`his length of service and success at the company.
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`23.
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`Mr. Hurley objected to his termination and objected to Defendants characterizing
`
`his termination as retirement.
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`24.
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`On December 19, 2022, Mr. Diener sent Mr. Hurley a second termination letter.
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`This letter amended the December 2, 2022 letter and stated that Mr. Hurley was being terminated
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`for cause.
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`25.
`
`The reasons cited for his termination were false and pretextual.
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`26.
`
`Kelley Steel terminated Mr. Hurley for cause in order to enforce a restrictive
`
`covenant prohibiting competition.
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`27.
`
`Mr. Hurley filed a charge of discrimination with the Ohio Civil Rights Commission
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`on or about February 21, 2023. A Notice of Suit Rights was issued by the Ohio Civil Rights
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`Commission on May 4, 2023.
`
`28.
`
`All prerequisites to filing suit under O.R.C. § 4112.052 have been satisfied.
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`O.R.C. § 4112 Age Discrimination - All Defendants
`
`COUNT ONE
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`29.
`
`The foregoing allegations are incorporated by reference as if fully rewritten herein.
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`30.
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`Plaintiff is, and at all times relevant herein was, over forty years of age.
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`31.
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`Defendants subjected Plaintiff to adverse employment actions based on his age.
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`Such adverse actions include, but are not limited to, termination of Plaintiff's employment and
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`falsely amending Plaintiff's termination and attempting to terminate Plaintiff's employment for
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`cause.
`
`32.
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`Plaintiff was qualified for his position as Chief Operating Officer and had
`
`demonstrated performance which met the legitimate expectations of his employer.
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`Electronically Filed 05/17/2023 16:20 / / CV 23 979615 / Confirmation Nbr. 2860338 / CLCEJ
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`
`
`33.
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`Defendants’ reasons for termination and termination for cause are pretextual and
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`intended to obscure the Defendants’ discriminatory motive.
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`34.
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`Defendants’ conduct violated O.R.C. § 4112.02(A).
`
`35.
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`As a direct and proximate result of Defendants’ conduct, Plaintiff has suffered, and
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`will continue to suffer, economic and non-economic damages for which the Defendants are liable,
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`including, but not limited to, pain and suffering, emotional distress, loss of professional reputation,
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`and loss of past and future salary, benefits, and other privileges and conditions of employment.
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`36.
`
`Defendants intentionally, willfully, wantonly, recklessly, and maliciously violated
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`Plaintiff’s rights under O.R.C. § 4112.02.
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`37.
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`Defendants are liable to Plaintiff for past and future economic and non-economic
`
`compensatory damages, back pay, front pay, punitive damages, attorney’s fees, costs, interest, and
`
`any other equitable relief that this Court deems appropriate pursuant to Ohio Revised Code Chapter
`
`§4112.
`
`(Aiding and Abetting Discrimination - Defendants Diener and Kelley)
`
`COUNT TWO
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`38.
`
`The foregoing allegations are incorporated by reference as if fully rewritten herein.
`
`39.
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`O.R.C. § 4112.02(J) makes it illegally for “any person to aid, abet, incite, compel,
`
`or coerce the doing of any act declared by this section to be an unlawful discriminatory practice,
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`to obstruct or prevent any person from complying with this chapter or any order issued under it,
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`or to attempt to directly or indirectly to commit any act by this section to be an unlawful
`
`discriminatory practice.”
`
`40.
`
`Diener and Kelley directly committed acts declared to be unlawful by O.R.C. §
`
`4112.02(A), specifically discriminating against Mr. Hurley on the basis of his age, which resulted
`
`in his termination.
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`Electronically Filed 05/17/2023 16:20 / / CV 23 979615 / Confirmation Nbr. 2860338 / CLCEJ
`
`
`
`41.
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`Diener and Kelley’s conduct violated O.R.C. § 4112.02(J).
`
`42.
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`As a direct and proximate result of Diener, Kelley, and Kelley Steel’s conduct, Mr.
`
`Hurley has suffered economic and non-economic damages for which the Defendants are liable,
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`including, but not limited to pain and suffering, emotional distress, and loss of professional
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`reputation.
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`COUNT TWO
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`(Retaliation)
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`43.
`
`The foregoing allegations are incorporated by reference as if fully rewritten herein.
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`44.
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`Mr. Hurley engaged in protected activity when he objected to Defendants’
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`retirement proposal and severance proposal when Mr. Hurley planned to and was qualified to
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`continue working.
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`45.
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`Defendants’ amendment to discharge for-cause after Mr. Hurley objected to
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`Defendants’ discriminatory retirement and severance proposal was retaliatory.
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`46.
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`Defendants’ actions were motivated by, and directly and causally related to Mr.
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`Hurley’s complaint and objections to Defendants’ terminating him on the basis of age.
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`47.
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`Defendant lacked an overriding business justification for terminating Mr. Hurley
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`and terminating Mr. Hurley for-cause.
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`48.
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`Defendants’ termination of Mr. Hurley was intentional, willful, malicious, and in
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`reckless disregard of Mr. Hurley’s rights.
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`49.
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`Insofar as Defendant intended to prevent Mr. Hurley from pursuing other
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`employment by discharging him for-cause, Defendant acted intentionally and with malice.
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`50.
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`As a direct and proximate result of Defendants’ unlawful conduct, Mr. Hurley has
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`suffered, and will continue to suffer, damages, including but not limited to past and future
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`Electronically Filed 05/17/2023 16:20 / / CV 23 979615 / Confirmation Nbr. 2860338 / CLCEJ
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`
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`economic damages, non-economic damages including pain and suffering and emotional distress,
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`and other privileges and benefits of employment.
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`COUNT THREE
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`(Declaratory Judgment)
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`51.
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`The foregoing allegations are incorporated by reference as if fully rewritten herein.
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`52.
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`Mr. Hurley is a person interested under a written contract or other writing
`
`constituting a contract and is entitled to declaration of his rights to compete under the terms of the
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`non-compete agreement. [Exhibit A]
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`53.
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`Mr. Hurley is entitled to declaratory judgment before Defendant breaches their
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`contractual obligations under the Non-Compete Agreement in the event that Mr. Hurley pursues
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`other employment pursuant to O.R.C. § 2721.04.
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`54.
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`Under the terms of the Non-Compete Agreement, Mr. Hurley is entitled to pursue
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`employment at a competing company unless Mr. Hurley has been legitimately terminated for cause
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`or he terminates his own employment.
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`55.
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`Mr. Hurley and Defendants attempted to come to an agreement regarding his
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`retirement in early December 2022.
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`56.
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`Defendants, in retaliation for Mr. Hurley engaging in protected activity and in order
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`to prevent Mr. Hurley from seeking employment elsewhere, amended their original termination
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`letter to terminate Mr. Hurley for cause.
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`Electronically Filed 05/17/2023 16:20 / / CV 23 979615 / Confirmation Nbr. 2860338 / CLCEJ
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`
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`57.
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`The reasons provided for cause for termination were fabricated in a malicious
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`manner.
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`58.
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`Mr. Hurley is entitled to declaration of his rights to pursue employment in
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`accordance with the Non-Compete Agreement.
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`WHEREFORE, Plaintiff prays for the following relief against Defendant:
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`A. Past and future economic damages, non-economic damages, lost benefits, and
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`perquisites of employment in excess of Twenty-Five Thousand Dollars ($25,000.00)
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`as a result of his discrimination and wrongful discharge.
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`B. Punitive damages, attorneys’ fees, interests, and costs in an amount to be determined
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`at trial.
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`C. Issue a Judgment declaring, under the terms of the non-compete agreement, that
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`Plaintiff is entitled to pursue employment at any employer and would not be in violation
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`of the non-compete agreement.
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`D. All other relief that this Court deems appropriate including costs as is equitable and
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`just pursuant to O.R.C. § 2721.11.
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`Respectfully submitted,
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`/s/ Natalie D. Davis_____
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`Richard C. Haber (0046788)
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`Natalie D. Davis (0102476)
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`HABER LLP
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`30195 Chagrin Boulevard, Suite 323
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`Pepper Pike, Ohio 44124
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`Phone: (216) 250-4782
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`Fax: (216) 250-4783
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`rhaber@haberllp.com
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`ndavis@haberllp.com
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`Attorneys for Plaintiff
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`Electronically Filed 05/17/2023 16:20 / / CV 23 979615 / Confirmation Nbr. 2860338 / CLCEJ
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`
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`A trial by jury is hereby demanded.
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`JURY DEMAND
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`/s/ Natalie D. Davis
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`Attorney for Plaintiff
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`Electronically Filed 05/17/2023 16:20 / / CV 23 979615 / Confirmation Nbr. 2860338 / CLCEJ
`
`
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