TERESA JONES, et al. v. NATURAL ESSENTIALS, INC.
CASE NO. 2021-P-0066
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
March 28, 2022
2022-Ohio-1010
MATT LYNCH, J.
Civil Appeal from the Court of Common Pleas Trial Court No. 2018 CV 00259 Judgment: Affirmed
Todd H. Lebowitz, Lisa M. Ghannoum, and Carrie Valdez, Baker & Hostetler LLP, PNC Center, 1900 East Ninth Street, Suite 3200, Cleveland, OH 44114 (For Defendant-Appellee).
OPINION
MATT LYNCH, J.
{1} Plaintiffs-appellants, Teresa Jones, Kevin Jones, and Rob Lovejoy, appeal the grant of summary judgment in favor of defendant-appellee, Natural Essentials, Inc. For the following reasons, we affirm the decision of the court below.
{2} On March 27, 2016, the plaintiffs filed a Complaint against Natural Essentials in the Portage County Court of Common Pleas. Count I raised a claim of Workers’ Compensation Discrimination in violation of
{3} On May 22, 2020, plaintiffs filed an Amended Complaint.
{4} On August 28, 2020, the Defendant‘s Answer was filed.
{5} On March 19, 2021, the plaintiffs filed a Motion for Summary Judgment as to Liability and Natural Essentials filed a Motion for Summary Judgment.
{6} On April 16, 2021, the plaintiffs filed their Response in Opposition to Defendant‘s Motion for Summary Judgment and Natural Essentials filed its Opposition to Plaintiffs’ Motion for Summary Judgment.
{7} On April 23, 2021, the plaintiffs filed a Reply in Support of Plaintiffs’ Motion for Summary Judgment as to Liability and Natural Essentials filed a Reply in Support of its Motion for Summary Judgment.
{8} On April 27, 2021, the plaintiffs filed an Amended as to Page Limit Reply in Support of Plaintiffs’ Motion for Summary Judgment and Natural Essentials filed an Amended as to Page Limit Reply in Support of its Motion for Summary Judgment.
{9} The following relevant evidence was before the trial court:
{10} Natural Essentials is a manufacturer and distributor of specialty consumer products, such as hand sanitizer, located in Streetsboro, Ohio. Gary Pellegrino, Sr. is both the owner and president of the company. Teresa Jones, Kevin Jones (her son), and Robert Lovejoy (her boyfriend) were hired by Natural Essentials in August 2013 and terminated in September of the same year.
{12} The duration of T. Jones’ employment at Natural Essentials comprised five weekends from her start date on August 17 (Saturday), until her termination date on September 16 (Monday). On the weekend of August 17-18, she worked Saturday and Sunday. On the weekend of August 24-25, she worked Saturday but not Sunday for reasons she could not recall. On the weekend of August 31-September 1, she worked a half of a day on Saturday and did not work Sunday because of a wedding. On the weekends of September 7-8 and September 14-15, she worked both Saturdays and Sundays.
{13} K. Jones’ employment at Natural Essentials mirrored that of T. Jones’ employment, except that he started work on the weekend of August 10-11.
{14} T. Jones testified that when she and K. Jones would be absent from work, she advised their supervisor, Faith Owens, in advance and obtained her approval for the missed work. According to Owens, she would acknowledge that the Joneses were missing work and notify the appropriate persons, but she did not approve the absences.
{15} On September 14 (Saturday), the Joneses requested the following weekend off to host a tattoo party. After their shifts had ended, Owens spoke with Pellegrino and advised that the Joneses would not be working the weekend of September 21-22. Pellegrino decided to terminate them for excessive absences. Pellegrino testified that the Joneses were still probationary employees and not entitled to time off. Moreover,
{16} The Joneses worked their usual shift on September 15 (Sunday). During a morning break, T. Jones was smoking outside when she tripped and fell trying to avoid a bee. She reported the incident to Owens and wrote out the following statement: “While outside bees were chasing me. I ran from being stung and fell on my back in parking lot. Witnesses. Betty, Lisa, Kevin“. Among the witnesses, Betty Clap testified that, after the fall, T. Jones returned to work. Lisa Davis testified that T. Jones said she was “fine” and returned to work. Kelly Porter testified that T. Jones said “that hurts” and returned to work. K. Jones testified that his mother was in severe pain and that he had to help her to get up and complete tasks for the rest of the day. T. Jones claimed that she was in extreme pain as a result of the fall but completed her shift and did not ask for medical attention. Owens reported to Pellegrino that T. Jones had fallen but that it was “no big deal.”
{17} On September 16 (Monday), Owens advised Dierckman that Pellegrino wanted the Joneses terminated. After T. Jones had finished working at VisiMax that day, Dierckman called her and told her that she and K. Jones were fired, that Natural Essentials was “cutting ties” with them according to T. Jones.
{18} On September 17 (Tuesday), T. Jones sought medical attention and initiated a workers’ compensation claim.
{20} On September 16 (Monday), Lovejoy borrowed a fellow employee, Alice Worman‘s, cellphone to text T. Jones during his lunchbreak. Worman noticed the content of the messages and showed them to her supervisor, Karen Collins. Collins advised Worman to show the messages to Owens and the shipping and receiving manager, Mike Edwards. Worman described the content of the messages in a written statement as follows: “Theresa [sic] Jones was telling Robert Lovejoy about running from a bee on Sunday Sept. 15, 2013 and then falling. He (Robert Lovejoy) told Theresa that she should sue and that neither one of them would have to work anymore. Theresa said she should go to the doctor‘s and give the f---ing bill to the asshole. Theresa asked Rob to see if there are any cameras on the parking lot. He told her that [there] were and that [Pellegrino] Sr. is responsible for anything that happens on his property. He said she should go to the doctor‘s if she is so sore.”
{21} Edwards decided to terminate Lovejoy after discussing the matter with Dierckman. According to Edwards, the reasons for terminating Lovejoy were “his job performance, his attitude and the fact that he was stealing company time” by “using another employee‘s cellphone while he was on the clock.” More specifically, Lovejoy repeatedly stocked items in the wrong location, was not as proficient on a tow motor as he claimed to be, and sent a text message to T. Jones in which he urged her to sue the company and called him an “asshole.” According to Dierckman, Pellegrino made the decision to terminate Lovejoy: “Gary, Sr. made the decision based on performance in the
{22} Lovejoy‘s termination was communicated to him on the morning of September 17 (Tuesday). He requested a meeting with Pellegrino regarding his termination. Pellegrino asked him if he sent the text message to T. Jones and if he did so during working hours. Lovejoy responded affirmatively and Pellegrino confirmed that that was the reason for his termination.
{23} On May 25, 2021, the trial court granted Natural Essentials’ Motion for Summary Judgment.
{24} On June 24, 2021, the plaintiffs filed a Notice of Appeal. On appeal, they raise the following assignments of error:
{25} “[1.] The Trial Court Erred in Requiring Appellants to Prove Elements of Their Claims on Summary Judgment Contrary to
{26} “[2.] The Trial Court Erred in Finding That Appellee is Entitled to Summary Judgment as to Count I for Workers’ Compensation Retaliation Pursuant to
{27} “[3.] The Trial Court Erred in Finding That Appellee is Entitled to Summary Judgment as to Count II for Disability Discrimination against Appellant Teresa Jones and Associational Disability Discrimination against Appellants Kevin Jones and Robert Lovejoy.”
{28} “[4.] The Trial Court Erred in Finding Appellee is Entitled to Summary Judgment as to Count III for Violation of Ohio Public Policy.”
{30} Summary judgment is appropriate when “there is no genuine issue as to any material fact and * * * the moving party is entitled to judgment as a matter of law,” i.e., when “reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party‘s favor.”
{31} The fifth assignment of error will be addressed first as it challenges the evidence on which the merits of the summary judgment Motion was decided. The plaintiffs argue that, in the depositions relied upon by Natural Essentials, “Counsel for Appellee repeatedly asked Appellants questions of law and sought legal analysis from them, which is cited in Appellee‘s [Motion for Summary Judgment].” Appellants’ Brief at 30; Wheatley v. Marietta College, 2016-Ohio-949, 48 N.E.3d 587, ¶ 83 (4th Dist.) (“[q]uestions of law are outside the realm of firsthand knowledge, and thus, a lay witness may not offer legal conclusions“) (citation omitted). As examples of allegedly inappropriate questions calling for legal conclusions, the plaintiffs note the following: “Tell me all the reasons you believe Natural Essentials retaliated against you for filing a workers’ compensation claim.“; “Can you tell me all the ways that you believe Natural Essentials discriminated against you because of your alleged disability?“; and “Are you claiming that you were harassed by Natural Essentials?” Further, the plaintiffs claim that
{32} We find no reversible error. The questions asked in deposition are equally capable of eliciting factual responses as well as legal conclusions. To the extent that deponents offered legal conclusions in their responses, we presume “the trial court did not consider any improper evidence in granting [the] motion for summary judgment.” DelleCurti v. Fetty, 11th Dist. Trumbull No. 2017-T-0001, 2017-Ohio-7965, ¶ 18; Stoll v. Gardner, 182 Ohio App.3d 214, 2009-Ohio-1865, 912 N.E.2d 165, ¶ 24 (9th Dist.) (“[w]e will not presume that the trial court considered such improper evidence, * * * unless the trial court specifically indicated that it did so when entering judgment in the case“); State ex rel. Gil-Llamas v. Hardin, 164 Ohio St.3d 364, 2021-Ohio-1508, 172 N.E.3d 998, ¶ 12 (“the court is presumed to have considered only relevant, material, and competent evidence“). Notably, the plaintiffs do not claim that the trial court adopted the deponents’ fact responses as legal conclusions but, rather, they accuse Natural Essentials of doing so in its Motion for Summary Judgment. Moreover, even if the court did rely on such responses in granting summary judgment, such error would not necessarily require reversal in light of this court‘s de novo review of the propriety of summary judgment. Fabian v. May, 11th Dist. Trumbull No. 2020-T-0071, 2021-Ohio-2882, ¶ 24.
{33} The plaintiffs also argue under this assignment of error that it was error for “the Trial Court to rely on any of the deposition citations of [Natural Essentials] for Appellants’ depositions, as the Record shows that certified and complete deposition transcripts were never filed with the Trial Court by Appellee.” Appellants’ brief at 32. “[B]efore a deposition may be considered as ‘legally acceptable evidence for summary
{34} It is well established that, in the absence of a motion to strike or other objection, a trial court has discretion to consider materials in connection with a motion for summary judgment that do not conform to the requirements of
{36} In the first assignment of error, the plaintiffs argue broadly that the trial court “erred by looking past the many genuine issues of material fact and even controlling legal authority and [by] requiring Appellants to prove elements of their claims on summary judgment contrary to
{37} The first assignment of error is without merit.
{38} In the second assignment of error, the plaintiffs claim the trial court erred by granting summary judgment as to their claim for workers’ compensation retaliation pursuant to
{39} “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.”
{40} As noted by Natural Essentials, T. Jones’ statutory retaliation claim pursuant to
{41} The second assignment of error is without merit.
{42} In the third assignment of error, the plaintiffs argue the trial court erred by granting summary judgment with respect to their claims for disability discrimination.
{43} It is unlawful in Ohio for an employer to discriminate against an employee on account of the employee‘s disability (formerly known as handicap discrimination).
{44} “To establish a prima facie case of disability discrimination, the plaintiff must demonstrate (1) that she is disabled, (2) that an adverse employment action was taken by an employer, at least in part, because of the disability, and (3) that the plaintiff, though disabled, can safely and substantially perform the essential functions of the job in question.” Allen v. totes/Isotoner Corp., 123 Ohio St.3d 216, 2009-Ohio-4231, 915 N.E.2d 622, ¶ 47. “‘Disability’ means a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one‘s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.”
{45} Summary judgment was appropriately granted on the plaintiffs’ disability discrimination claim because they failed to raise a genuine issue of material fact as to whether Natural Essentials terminated T. Jones, “at least in part, because of [her] disability” and/or whether Natural Essentials regarded her as having a physical impairment. Stated otherwise, there is no evidence that Natural Essentials knew or should have had reason to know that T. Jones was even injured much less substantially impaired as a result of the fall. Cady v. Remington Arms Co., 665 Fed.Appx. 413, 417 (6th Cir. 2016) (a claim of discrimination “‘on the basis of disability’ * * * requires that the employer knew or should have known that the employee was disabled“); Drogell v. Westfield Group, 9th Dist. Medina No. 11CA0011-M, 2013-Ohio-5262, ¶ 15 (citation omitted) (“[i]f the plaintiff seeks to establish his or her case indirectly, without direct proof of discrimination, the plaintiff may establish a prima facie case of discrimination by showing that * * * the employer knew or had reason to know of the plaintiff‘s disability“).
{46} Here, the evidence is that T. Jones reported her fall to Owens but did not request medical attention or advise Owens that she was in severe pain; rather, she returned to work and completed her shift. She stated that, after completing her written statement, she expected “nothing” to happen: “I just filled out the incident report [i.e., the written statement] because * * * I had fallen * * * on the premises.” It is also worth noting that, according to her own description of her responsibilities at Natural Essentials, T. Jones would have to lift boxes of between 20 and 40 pounds. Moreover, there is no evidence that T. Jones herself even realized that she might have suffered a debilitating injury as a result of the fall inasmuch as she worked a full day at her other job following the fall and did not seek medical attention until the second day after the fall. It has been justly held that “an employer cannot be said to have or have reason to know of an employee‘s disability where that employee returns to work without restriction or request for accommodation.” (Citation omitted.) Leeds v. Potter, 249 Fed.Appx. 442, 449 (6th Cir. 2007).
{47} The plaintiffs assert the following as evidence that Natural Essentials regarded T. Jones as disabled: “Ms. Jones immediately reported the incident to Ms. Owens,” - “rubbing [her] back and [her] butt” - “wrote and gave a statement to Ms.
{48} The plaintiffs claim that Owens “untruthfully” minimized the severity of the fall when she reported the incident to Pellegrino in an effort to establish “cat‘s paw” or “subordinate basis” liability. The argument is unavailing in the absence of evidence that Owens was aware of T. Jones’ condition after the fall.
{49} The third assignment of error is without merit.
{50} In the fourth assignment of error, the plaintiffs argue the trial court erred in granting summary judgment on the violation of Ohio public policy claims.
{51} In Ohio, “[t]he tort of wrongful termination in violation of public policy * * * is an exception to the employment-at-will doctrine.” House v. Iacovelli, 159 Ohio St.3d 466, 2020-Ohio-435, 152 N.E.3d 178, ¶ 11. To establish a claim based on the violation of
{52} The plaintiffs claim that Natural Essentials’ “termination of Ms. Jones on the basis of her disability resulting from the Fall, as well as its termination of Mr. Jones on the basis of his familiar relationship as Ms. Jones’ son, and Mr. Lovejoy on the basis of his association with and expressed support for Ms. Jones, violate Ohio public policy embodied in the ADA and Ohio Revised Code section 4112, et seq.” Appellants’ brief at 28.
{53} We agree with the trial court that the public policy claims based on
{55} Many courts, both state and federal, “have recognized that the statutory remedies provided by Revised Code Chapter 4112 adequately protect society‘s interests and adequately compensate an aggrieved employee for a violation of Ohio‘s discrimination laws.” McMillen v. Fraley & Schilling, Inc., N.D. Ohio No. 1:05 CV 1699, 2006 WL 8447100, *2 (cases cited); Bostick v. Portage Cty. Pub. Defender‘s Office, N.D. Ohio No. 5:07CV2215, 2007 WL 2572180, *5 (“Ohio Courts of Appeal have held that Ohio‘s public policy against discrimination will not be jeopardized if a common law claim of wrongful discharge based on
{56} The plaintiffs raise no argument that statutory remedies are inadequate. Rather, they argue that Wiles is distinguishable because it involved a claim brought under the Family and Medical Leave Act rather than a claim of disability discrimination. This argument was considered and rejected in Barlowe v. AAAA Internatl. Driving School, Inc., 2d Dist. Montgomery No. 19794, 2003-Ohio-5748, ¶ 37, which concluded that “there is no indication that the principles expressed [in Wiles] are limited to FMLA-based claims.” We find the reasoning of Barlowe compelling, particularly in light of the subsequent application of the principles expressed in Wiles to an age discrimination claim under
{57} Alternatively, the plaintiffs’ public policy claims fail because they failed to make a prima facie claim under
{58} The plaintiffs further argue that Natural Essentials “termination of Ms. Jones in retaliation for her pursuing a workers’ compensation claim violates Ohio public policy embodied in
{59} In Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938, as noted above, the Ohio Supreme Court recognized that it was a violation of public policy to retaliatorily discharge an employee that has suffered an injury on the job in anticipation of the employee filing a workers’ compensation claim. “To establish causation, a plaintiff who alleges wrongful discharge in violation of public policy as expressed in
{60} In the present case, the plaintiffs have failed to establish the existence of a genuine issue of material fact with respect to causation. The undisputed testimony of Owens and Pellegrino is that the decision to terminate the Joneses was made on September 14 (Saturday), the day before T. Jones suffered her injury. According to the plaintiffs’ own statement of the evidence:
Mr. Pellegrino claims that he decided with Ms. Owens on Saturday, September [14], 2013, that Appellee would terminate Ms. Jones’ and Mr. Jones’ employment on Sunday, September [15], 2013, the day of the Fall. However, he further claims it had to wait until Monday, September [16], 2013, because the General Manager, Mr. Dierckman, was out of town until then. Mr. Dierckman was in Columbus instead of at work due to an alleged emergency family issue. * * *
On Sunday, September 15, 2013, the day of the Fall, Ms. Jones and Mr. Jones were permitted to clock in and work their usual 8 hour shifts without any knowledge of Appellee‘s purported decision to terminate them. The company sent Ms. Jones and Mr. Jones non-payroll checks dated October 7, 2013, for the amount of $64.00 each, for the 8 hour shifts they worked on Sunday, September 15. * * *
Mr. Pellegrino admits he did not speak with Mr. Dierckman regarding any termination of Ms. Jones and Mr. Jones until Monday, September 16, 2013, the day after the fall, and that Mr. Dierckman did not even prepare termination papers until that Monday. Also on September 16, 2013, Mr. Dierckman called Ms. Jones and told her that Appellee was “cutting ties” with her and her son. Ms. Jones then told Mr. Jones what Mr. Dierckman told her.
(Citations to the record omitted.) Appellants’ brief at 8-9
{61} The fact that the testimony of Owens and Pellegrino is not directly disputed or contradicted does not necessarily required that it be accepted as true, if there are grounds from which it can be reasonably inferred that they are lying. To support such an inference, the plaintiffs argue that, although Natural Essentials claimed the Joneses were being terminated for excessive absenteeism, they had not received reprimands for missing work, and their absences (two and a half-missed days out of ten days for T. Jones and out of twelve days for K. Jones) were approved by Owens. Whether the Joneses’ absences were approved is only tangentially related to whether their discharge was retaliatory. Whether or not approved, T. Jones had missed a quarter of her scheduled shifts in her first thirty-five days of employment and intended on taking the following
{62} The points raised by the plaintiffs, even construed in their favor, do little to establish the required nexus between their termination and a potential workers’ compensation claim. Assuming, arguendo, that Owens and Pellegrino were lying about when and why the decision was made to terminate the Joneses, their claim still fails. As discussed under the third assignment of error, Natural Essentials was not on notice that T. Jones had suffered a debilitating injury as a result of her fall. Rather, she returned to work and completed her shift without incident. Even if the decision to terminate was made after the fall, the evidence does not raise the possibility that it was made to retaliate against T. Jones in anticipation of a future workers’ compensation claim. T. Jones had not yet decided to even visit a doctor and there is no evidence that Natural Essentials was informed of her injury.
{63} The only possible way in which Natural Essentials might have been put on notice about a potential workers’ compensation claim was the text messages that Lovejoy sent to T. Jones advising her to sue Natural Essentials (which technically would not be a
{64} The plaintiffs further assert that the “termination of Ms. Jones for her reporting of safety violation(s) and a workplace accident violates Ohio Public Policy embodied in Article II, Sections 34 and 35 of the Ohio Constitution, Ohio Revised Code sections 4101.11, 4101.12, 4121.13, 4121.17, OSHA, including but not limited to Section 5(a)(1) and (2) of the General Duty Clause, and its promulgated standards and
{65} The trial court rejected several of these claims on the basis that they failed to satisfy the clarity element of a public policy claim. “To satisfy the clarity element of a claim of wrongful discharge in violation of public policy, a terminated employee must articulate a clear public policy by citation of specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law.” Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825, syllabus. According to Dohme, “[t]he mere citation of the syllabus in Pytlinski is insufficient to meet the burden of articulating a clear public policy of workplace safety.” Id. at ¶ 21.
{66} We agree that the plaintiffs’ reliance on Article II, Sections 34 and 35 of the Ohio Constitution fails to articulate a clear public policy violated by their discharge. Section 34 provides that “[l]aws may be passed * * * providing for the comfort, health, safety and general welfare of all employes [sic].” Section 35 provides for the creation of the workers’ compensation system: “For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned
{67}
{69}
{70} Lastly, the plaintiffs cite Section 5 of OSHA, also known as the General Duty Clause, as a source of public policy. This Section provides that each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees” and “shall comply with occupational safety and health standards.”
{71} The fourth assignment of error is without merit.
{72} For the foregoing reasons, the Judgment of the Portage County Court of Common Pleas is affirmed. Costs to be taxed against the appellants.
CYNTHIA WESTCOTT RICE, J., concurs,
THOMAS R. WRIGHT, P.J., concurs in judgment only.