ESTABAN LEBRON v. A&A SAFETY, INC.
No. 96976
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 12, 2012
2012-Ohio-1637
Cooney, P.J., Keough, J., and E. Gallagher, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-737167
RELEASED AND JOURNALIZED: April 12, 2012
Alan I. Goodman
55 Public Square, Suite 1300
Cleveland, OH 44113-1971
ATTORNEY FOR APPELLEE
Karen Soehnlen McQueen
Krugliak, Wilkins, Griffiths & Doughe
4775 Munson Street NW
Canton, Ohio 44735
{¶1} Plaintiff-appellant, Estaban Lebron (“Lebron“), appeals the trial court‘s grant of summary judgment in favor of defendant-appellee, A&A Safety, Inc. (“A&A“). We find no merit to the appeal and affirm.
{¶2} In his complaint, Lebron alleges A&A wrongfully terminated his employment in retaliation for his filing and pursuing a claim for workers’ compensation benefits. A&A is involved in the heavy road construction industry. The majority of its employees work only during road construction season, which varies each year depending on the weather.
{¶3} A&A hired Lebron to work in its Cleveland branch in 2004. Lebron worked as a “striper” or “tailgunner,” which required his operating a machine that released paint on the road. On December 12, 2006, Lebron was injured in an accident at work and filed a workers’ compensation claim. He returned to work within days of the accident, with restrictions. He completed his treatmеnt, which consisted of physical therapy and pain medication, in March 2007, and returned to work without restrictions in April 2007.
{¶4} Lebron worked the 2004 through 2008 seasons, but was not called back for the 2009 season. He claims A&A did not call him back to work because he was pursuing additional workers’ compensаtion claims. A&A claims it did not call Lebron back
{¶5} When Lebron was not recalled for work in 2009, he filed this wrongful termination action against A&A, claiming it fired him in retaliation for his new workers’ compensation claims. After conducting discovery, A&A filed a motion for summary judgment, which the court granted. Lebron now appeals, raising three assignments of error.
Standard of Review
{¶6} An appellate court reviews a trial court‘s decision on a motion for summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is appropriate when, construing the evidence most strongly in favor of the nonmoving party, (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998), citing Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995), paragraph three of the syllabus.
Excluded Documents
{¶8}
{¶9} Documents purportedly printed from a website do not comport with the strict limitations on documentary evidence set forth in
Judicial Notice
{¶10} Lebron further argues that the court could have and should have taken judicial notice of the workers’ compensation documents. He contends the website contains public records.
{¶11} Under
{¶12} The first assignment of error is overruled.
Wrongful Termination
{¶14} Lebron argues A&A chose not to call him back to work for the 2009 season simрly because he was pursuing additional workers’ compensation claims. He sought to have additional claims allowed to include a disc bulge and herniation of the spine as well as lost wages. He contends that the “[t]emporal proximity between the Appellee‘s failure to recall Appellant and his pursuit of his workers’ compensation claim is deemed indirect evidence such as to permit an inference of retaliation.” We disagree.
{¶15} To establish a prima facie case for retaliatory discharge, an employee must prove that hе or she: (1) was injured on the job; (2) filed a workers’ compensation claim; and (3) was discharged in contravention of
{¶16}
{¶17} If the plaintiff establishes his or her prima facie case, then the burden of production shifts to the employer to articulate a legitimate nonretaliatory reason for its action. Ayers v. Progressive RSC, Inc., 8th Dist. No. 94523, 2010-Ohio-4687, ¶ 14. “[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 thе employee‘s discharge.” Kilbarger v. Anchor Hocking Glass Co., 120 Ohio App.3d 332, 338, 697 N.E.2d 1080 (5th Dist.1997).
{¶18} If the employer sets forth a legitimate, nonretaliatory reason for the employee‘s discharge, the employee must establish that the reason given by the employer is pretextual, and that the real reason for the discharge was the employee‘s protected activity under the Workers’ Compensation Act. Markham v. Earle M. Jorgensen Co., 138 Ohio App.3d 484, 492, 741 N.E.2d 618 (8th Dist.2000). Although the burden of proof shifts back and forth between the employee and the employer, the ultimate burden remains at all times on the employee to prove that the employer had a retaliatory motive for the discharge. Id., citing Bertrand v. Collinwood Serv. Ctr., 8th Dist. No. 58508, 1991 WL 81487 (May 16, 1991).
{¶19} The scope of
{¶20} To establish pretext, a plaintiff must demonstrate “that the proffered reason (1) has no basis in fact; (2) did not actually motivate the employer‘s challenged conduct; or (3) was insufficient to warrant the challenged conduct.” Lascu v. Apex Paper Box Co., 8th Dist. No. 95091, 2011-Ohio-4407, ¶ 27, quoting Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.2000). Regardless of which option is chosen, the plaintiff must produce sufficient evidence from which the jury could reasonably reject the employer‘s explanation and infer that the employer intentionally retaliated against him. Id., citing Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.2003).
{¶21} Lebron does not argue that A&A‘s proffered reason has no basis in fact, nor does he argue the proffered reason was insufficient to warrant A&A‘s action. Rather, Lebron suggests the profferеd reason did not actually motivate the adverse action. We disagree.
Q: Why did you rehire him all thе previous years and not this year?
A: Because this year we had an economic downturn, and I was looking at not calling everything — in a good year everybody comes back within a two- three-week period because we get busy all at once. This year highway — heavy-highway work, especially the subcontractor, has been on the wane, and we were looking at bringing people back as needed as we normally do based on their skill levels.
{¶23} In deciding which employees to recall, seniority was not a consideration. Chase explained that although he recаlled some employees with less seniority than Lebron, those employees demonstrated greater skills and therefore offered more flexibility to perform varying kinds of tasks required by the limited amount of available work. Lebron‘s skills were limited because he performed 90% tailgunning, and striping was affеcted more than other kinds of work. Chase explained during his deposition:
He‘s a good employee but others surpassed him in skills, some of them having a CDL [a Commercial Driver‘s License], more experience. He was paint striper, tailgunner, and, again, he was a good employee but didn‘t have the ambition to do more.
{¶24} Although Chase knew that Lebron filed a workers’ compensation claim in 2006, he called Lebron back to work in 2007 and 2008. There is no evidence Chase knew Lebron was pursuing an additional claim in 2009 when he decided not to recall Lebron. A&A‘s main office is locatеd in Amelia, Ohio, which is located near
{¶25} Knechtly further stated that the only communication she made to anyone in a local branch regarding any workers’ compensation claim would be to notify them of any chаnges in work limitations that employees have communicated to her. Because Knechtly never received any notification of changes in any work limitations for Lebron after the initial receipt of those limitations in 2006 and 2007, she did not communicate with Chase or anyone else at thе Cleveland branch regarding Lebron‘s additional workers’ compensation claim. Because there is no evidence that Chase knew about Lebron‘s additional workers’ compensation claim when he decided not to recall Lebron back to work for the 2009 season, Lebron fаils to establish a prima facie case of retaliatory discharge.
{¶26} Further, Lebron relies solely on his own affidavit to disprove A&A‘s legitimate reason for his discharge. In his affidavit, he asserted that it is “hard to believe” that Knechtly did not tell Chase about his workers’ compensation claims. He аlso claims that Chase “must have known” about Lebron‘s claims because he appeared with Knechtly at a workers’ compensation hearing before the Industrial Commission of
{¶27} However, even if these documents were admissible, they still do not help Lebron‘s case. The hearing on March 13, 2008 was held to determine the amount of сompensation he lost from December 12, 2006 (the date of injury) to April 26, 2007 (the date he could return to full duties). There is no evidence that Chase knew this hearing related to a new claim. In fact, in his affidavit, Chase specifically stated that he was unaware that Lebron had made any attempts to pursue additional claims. Because Chase is not responsible for handling A&A‘s workers’ compensation claims and is not familiar with the details of each claim, he could have easily concluded that this was an ongoing process as opposed to a new claim.
{¶28} Moreover, Chase recalled Lebron for the 2008 season, which would have lasted through the summer of 2008, months after the March 13th workers’ compensation hearing. If anything, evidence that Chase knew about Lebron‘s claim for lost wages in the spring of 2008 strengthens A&A‘s argument that his dismissal was not related to his workers’ compensation claim. The fact is, despite knowledge of his wage claim, Chase did not terminate Lebron in 2008 after he attended the hearing on that claim. In 2009, Chase recalled workers as needed to complete a limited amount of work.
{¶30} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
COLLEEN CONWAY COONEY, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR