2006 Ohio 1040 | Ohio Ct. App. | 2006
{¶ 3} Appellant filed a complaint in the Summit County Court of Common Pleas alleging workers' compensation retaliation in violation of R.C.
{¶ 5} Pursuant to Civil Rule 56(C), summary judgment is proper if:
"(1) No genuine issue as to any material fact remains to be litigated;
(2) the moving party is entitled to judgment as a matter of law; and
(3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v.Wean United, Inc. (1977),
{¶ 6} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt (1996),
{¶ 7} In their joint motion for summary judgment, appellees relied upon the affidavits of the companies' respective presidents, appellant's First Report of Injury ("FROI"), and appellant's deposition transcript. Based upon the above, appellees asserted that appellant was not an employee of Cavanaugh. In addition, appellees asserted that appellant failed to prove that there was a retaliatory motive behind his discharge from DTJ.
{¶ 8} Appellant responded to the motion for summary judgment, relying upon much of the same information as appellees. In addition, appellant attached various work-related documents that contain both appellant's and Cavanaugh's names on them in an attempt to prove that he was employed by Cavanaugh. Ultimately, the trial court concluded that no genuine issue of material fact remained and granted judgment in favor of appellees.
{¶ 9} In his third assignment of error, appellant claims that the trial court erred in granting summary judgment in favor of Cavanaugh after concluding that Cavanaugh was not appellant's employer. This Court disagrees.
{¶ 10} R.C.
{¶ 11} In its motion for summary judgment, Cavanaugh argued that it should be awarded summary judgment because appellant was not employed by Cavanaugh at the time of his discharge. To support its argument, Cavanaugh attached the affidavits of Michael Cavanaugh, President of Cavanaugh, and David Cavanaugh, President of DTJ, and appellant. Both Michael and David Cavanaugh testified that appellant's employment with Cavanaugh ended in July 1997, at which time he was hired by DTJ.
{¶ 12} In his memorandum in opposition to Cavanaugh's motion for summary judgment, appellant refers to numerous work-related documents that contain both his and Cavanaugh's names on them. While the documents appear to support his argument that he was employed by Cavanaugh at the time of his termination, his own testimony leads to a different conclusion. At his deposition, appellant stated that he was hired by DTJ in 1997, employed by DTJ at the time he was injured, that he turned in the FROI to the DTJ office, that he received paychecks from DTJ during the period from January 2002 to April 9, 2002, (when he had stopped receiving checks from the Bureau of Workers' Compensation), and that he received paychecks from DTJ from the time he resumed employment on April 9, 2002, through May 14, 2002.
{¶ 13} After reviewing the record, this Court concludes that, at the time of his discharge, appellant was employed by DTJ and not by Cavanaugh. Consequently, appellant's third assignment of error is overruled.
{¶ 14} Appellant argues in his first assignment of error that the trial court erred in granting summary judgment in favor of Cavanaugh and DTJ1 with regards to his claim of retaliatory discharge. This Court disagrees.
{¶ 15} R.C.
"No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers' compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer."
{¶ 16} In order to prevail on a claim of retaliatory discharge, the employee must first prove a prima facie case of discrimination under R.C.
"If the employee makes a prima facie case, the burden shifts to the employer to set forth a nondiscriminatory reason for the discharge. * * * [T]he burden does not require the employer to prove the absence of a retaliatory discharge. It merely requires the employer to set forth a legitimate, nonretaliatory reason for the employee's discharge. The employer does not have to validate this reason.
"Finally, if the employer sets forth a legitimate, nonretaliatory reason, the burden once again shifts to the employee. The employee must then establish that the reason articulated by the employer is pretextual and that the real reason for the discharge was the employee's protected activity under the Ohio Workers' Compensation Act. (Citations omitted, alterations sic.) Turton v. York Internatl. (Oct. 4, 2000), 9th Dist. No. 00CA007539, quoting Kilbarger v. Anchor Hocking GlassCo. (1997),
{¶ 17} "While the burden of going forward with evidence may shift between the employee and the employer in these types of cases, the employee will always retain the ultimate burden of proof [or persuasion] in an action filed under R.C. 4123.90."Mayle v. Ravenna Aluminum (Nov. 5, 1999), 11th Dist. No. 98-P0-103, unreported.
{¶ 18} In the case at bar, DTJ does not argue that appellant failed to establish a prima facie case. Appellant does not contend that DTJ failed to set forth legitimate, nonretaliatory reasons for his discharge but instead argues that the reasons were pretextual and that the real reason for his discharge was his pursuit of a workers' compensation claim. Therefore, this Court will only address this third prong.
{¶ 19} When considering whether a proffered reason is pretextual, most Ohio courts apply a "before and after" test, comparing the employee's situation before and after the filing of a workers' compensation claim. Fouts v. Seven-Up Bottling Co. ofCleveland (Aug. 9, 1989), 9th Dist. No. 88CA004448. "Factors taken into consideration include such punitive action as bad performance reports surfacing immediately after a workers' compensation claim was filed, the length of time between the filing of a claim and discharge, changes in salary level, hostile attitudes emerging, and whether legitimate reasons exist for the discharge." Id., quoting Hohn v. Deco Tools, Inc. (Jan. 23, 1987), 6th Dist. No. L-86-119.
{¶ 20} After reviewing the record, this Court finds that appellant failed to establish that the reason DTJ gave for his discharge was pretextual and that the real reason for his discharge was the fact that he filed a workers' compensation claim.
{¶ 21} In its motion for summary judgment, DTJ claimed that appellant was discharged due to the fact that DTJ had a lack of work available for appellant. David P. Cavanaugh, President of DTJ, testified through deposition that appellant was not terminated from his employment with DTJ because he filed or otherwise pursued benefits from workers' compensation, but because of a lack of work at DTJ. Mr. Cavanaugh testified that appellant was terminated from his employment at DTJ on May 14, 2002. Specifically, Mr. Cavanaugh testified that, due to the nature of appellant's injury, he had a diminished ability to perform the tasks required of him as a carpenter following his injury.
{¶ 22} In his memorandum opposing DTJ's motion for summary judgment, appellant offered two reasons why he believed that DTJ's justification for terminating his employment with DTJ was pretextual: (1) appellees told him that he would not be rehired; and (2) appellees had other jobs in progress. This Court finds that the evidence presented by appellant does not support his argument that DTJ's reason for his termination from employment was pretextual.
{¶ 23} First, this Court notes that DTJ did not have an obligation to rehire appellant after his termination as an employee. However, if such an obligation did exist, appellant offered no evidence to substantiate the claim that DTJ employees told him that he would not be rehired. Appellant did not testify as to who specifically made comments to him regarding the possibility of his returning to work at DTJ. When questioned during the taking of his deposition as to what he was told upon his termination, appellant replied that his supervisor, Brian Kellogg, gave him his last check on May 11, 2002, at the job site, and said: "Here's your last check, they're letting you go." When asked whether he was given any other reasons for his termination, appellant responded: "I don't think so, no."
{¶ 24} Second, this Court finds that appellant's assertion that the fact that DTJ had jobs in progress at the time his employment was terminated is unsupported by the evidence. The work records offered into evidence by appellant establish that Cavanaugh had jobs in progress at the time of appellant's discharge. As this Court has found that Cavanaugh and DTJ are separate entities, this evidence does not support the conclusion that DTJ had jobs in progress as well. Therefore, they do not support appellant's argument.
{¶ 25} Appellant also referred to employee hire-fire lists to support his claim that DTJ's reason for his discharge was pretextual. However, a review of these records does not reveal whether these other employees were of the same job classification as appellant. Furthermore, there is no evidence that DTJ had a system by which appellant would have been afforded priority over other less senior carpenters at times when DTJ experienced a reduction in work.
{¶ 26} Having found that appellant failed to prove that DTJ's reason for his discharge was pretextual, appellant's first assignment of error is overruled.
{¶ 27} In his second assignment of error, appellant argues that the trial court erred in appearing to grant summary judgment in favor of appellees with respect to his claim that his discharge was a violation of public policy. Upon review of the record, this Court determines that it lacks jurisdiction to entertain appellant's second assignment of error.
{¶ 28} While this Court recently addressed this issue inCoon v. Technical Constr. Specialties, 9th Dist. No. 22317,
Judgment affirmed, and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to appellant.
Slaby, P.J., Whitmore, J., concur.