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Hardwick v. Sherwin-Williams Co.2/13/2002
Judgment: Affirmed
. This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1.
. Plaintiffs-appellees Barbara Hardwick ("Hardwick") and Carmen Beverly ("Beverly") commenced this action for discrimination against their former employer, defendant-appellee The Sherwin-Williams Co. ("defendant"). Defendant moved the trial court to stay proceedings and to compel plaintiffs to submit their discrimination claims to arbitration. Defendant appeals from the trial court's denial of that motion. For the reasons that follow, we affirm.
. Both plaintiffs worked for defendant for many years. Beverly and Hardwick served as Sherwin-Williams employees for approximately seventeen and twenty years, respectively. At some undetermined point during plaintiffs' employment, Sherwin-Williams created a "Problem Resolution Procedures" ("PRP") leaflet. In part, the one- page leaflet provides that the PRP "may be used by employees to challenge unresolved differences regarding application of Company policies, procedures or practices which affect their employment situation, and will be the exclusive method for addressing the work-related issues as they arise * Further understand that if this procedure is not used, it may preclude employees from pursuing any legal rights they may have in court or in other forums." (R. 8, Ex. 1, emphasis added). The policy applies unilaterally to the employees because "it does not cover any legal claims that the Company may have against its employees." Id.
. Also, the leaflet clearly disclaims the existence of any type of contract either expressed or implied as follows: " he Problem Resolution Procedures do not create, and shall not be construed to create, any contract of employment, either expressed or implied. These procedures do not in any way alter the `at-will' status of any individual's employment. `At-will' means that an employee may resign at any time, and Sherwin-Williams may discharge an employee at any time with or without cause." Id.
. While the leaflet provides that " ll regular full and part-time employees at the Headquarters Site are eligible to use the Problem Resolution Procedures *", the terms do not explicitly condition continued employment upon use of the procedures. Id, emphasis added. There is no record evidence indicating that any employee has ever been or would be terminated for failure to comply with the procedures.
. In 1999, and subsequent to receiving Harwick's complaints, defendant purportedly federal expressed her a copy of the "Problem Resolution Procedure, Non-harassment policy" and "encouraged" her "to use the process if [she did] have issues." (R. 8, Ex. 3). Likewise, there is evidence that Beverly knew, subsequent to making her complaints, that defendant "want her to participate in the Problem Resolution Process *." (R. 8, Ex. 2). Defendant's correspondence to plaintiffs contained in this record fails to refer to the procedures as exclusive remedies and does not condition the women's continued employment on their agreement to use the procedures. There is no evidence in the record indicating that either plaintiff assented, or otherwise agreed, to use the PRP as the sole means of redress.
. Plaintiffs each allege that they suffered sexual harassment and other tortious misconduct during their respective employments with defendant. Both claim that defendant's failure to effectively remedy their complaints resulted in their constructive discharges in 1999 and 2000. Both advanced claims against defendant first through the U.S. Equal Employment Opportunity Commission and then through the complaint filed in this matter in the Cuyahog
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