Last month, the Ohio Court of Appeals affirmed an employer’s
summary judgment on a retaliation claim brought by a former employee who had
been fired after violating safety protocols and his final written warning on
the same subject just a few weeks earlier. Creveling
v. Lakepark Industries, Inc., 2021-Ohio-764. The Court rejected the employee’s claims
that his termination was retaliatory for obtaining workers’ compensation or
participating in an OSHA investigation or because of his alleged or perceived
disability. The Court refused to apply
the worker’s compensation retaliation statute to a claim brought after the
employee returned to work because simply returning to work from workers
compensation leave does not constitute protected activity. Further, the Court refused to find that the
employee was disabled. The Court held
that participating in an OSHA investigation was not protected by the relevant
statute, which only prohibited retaliation for filing an OSHA claim or testifying
in an OSHA proceeding. More importantly,
the Court found that the employee could not prove causation or pretext for his
termination when he had been injured while violating a safety protocol, had
received workers compensation and medical leave, had been suspended for his
initial violation of the safety protocol upon returning to work, had been
warned in writing that he would be fired if he violated that safety protocol
again, and on his first day back performing his former job, he again violated
the safety protocol by wearing Kevlar gloves while operating rotating
equipment.
According to the Court’s opinion, the employee was a tool
and die operator. The Employer’s
policies and training made clear that employees were not to wear Kevlar gloves
while operating rotating equipment. The
employee testified that he and other employees frequently ignored that
rule. In September, his right hand was
mangled (requiring the amputation of a finger) in rotating equipment while he
was wearing Kevlar gloves in violation of the Employer’s policy. The Employer filed a workers compensation
claim on his behalf the same day and reported the injury to OSHA. During the OSHA investigation, the Employer
provided the employee’s contact information, but was unaware that he had been
interviewed. The Employer resolved the
OSHA investigation by installing new safety equipment on the machine. The employee returned to work in April and
was immediately suspended for his September violation of the safety
protocols. He signed the suspension
notice stating that he would be fired if he again violated the rule against
wearing gloves while operating the safety equipment. When he returned to work on May 1, he
requested to return to his old job instead of light duty. Upon producing a medical release, he was
released to return to his former job on May 8.
That same day, he was observed operating rotating equipment while
wearing Kevlar gloves. He was
immediately suspended and ultimately terminated for again violating the
Employer’s safety rule and violating the terms of his disciplinary suspension.
The plaintiff filed suit alleging that his termination
violated Ohio’s statute prohibiting retaliation against employees for filing
workers’ compensation claims, the Ohio Civil Rights Act prohibiting discrimination
against employees with disabilities or perceived disabilities, Ohio’s public
policy prohibiting retaliation against employees who participate in OSHA
investigation, and Ohio’s intentional tort statute. The trial court granted the employer summary
judgment on all claims and the Court of Appeals affirmed.
Claims for workers’ compensation retaliation are governed by R.C. 4123.90, which pertinently provides:
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.
The Court found that the employee could not establish “a
causal link exists between the employee’s filing or pursuit of a workers’
compensation claim and the adverse action by the employer” or that the reasons
for his termination were pretext for workers’ compensation retaliation.
“The inference of retaliatory motive may be drawn from the surrounding circumstances, including the timing of the discharge relative to the protected conduct, whether punitive action was directed toward the employee as a result of the claim, a hostile attitude[ ] toward the employee once the claim was filed, disparate treatment of the employee relative to others, and requests not to pursue a claim.” . . .
{¶ 27} Appellant argues that the fact that appellant was terminated within seven days after he returned to work, following his three-day suspension beginning on April 24, 2017, established temporal proximity between [the Employer’s] knowledge of appellant’s protected activity and appellant’s termination sufficient to constitute evidence of a causal connection.
The Court rejected any argument about temporal proximity
because the employer had known about the employee’s workers’ compensation claim
for more than eight months before he was fired.
Such does not constitute “very close” proximity between the protected activity and the adverse employment sufficient to establish causation. Further, appellant was unable to cite, and research by this court was unable to show, any authority to support appellant’s position that simply returning to work from workers’ compensation disability constitutes protected activity under R.C. 4123.90. Nor is there any authority to support that an employer’s “knowledge” of a claim is sufficient to give rise to a retaliatory discharge claim.
The Court refused to find causation from stray and light
hearted comments about his injury or from employees violating the safety
protocols prior to his accident
without getting fired. It also rejected
his argument that he had not yet started to operate the rotating machine at the
time he was confronted because he had already placed the blocks onto the
machine and turned it on in order to grind a weld off. More importantly, the employee could not show
that the reason for terminating him was pretextual because he voluntarily
signed and did not contest the basis for his suspension and final warning. He knew that violating that wearing Kevlar
gloves again while operating a rotating machine could and would lead to his
termination. The argument that he had
not yet started to push the blocks through the machine at the time he was
confronted would not save his job:
The evidence is clear that [the Employer] had a reasonable basis to infer that appellant was operating the profiler while wearing gloves in contravention of the Employee Corrective Action, based on the eyewitness observations of Zagurskie and Kreinbrink. Accordingly, it is the determination of this court that appellant has failed to establish that Lakepark’s proffered reason for firing appellant: (1) had no basis in fact; (2) did not actually motivate the discharge; or (3) was insufficient to motivate the discharge
The Court also rejected his disability discrimination
claims. Although the plaintiff claimed
to have some difficulty with basic life activities (like holding a pencil,
buttoning a shirt, household chores etc.) and had not yet acclimated to his job
duties, he believed that he was making progress and would be able to perform
his job with or without a reasonable accommodation.
As far as appellant’s work is concerned, appellant testified, “I believe I could do anything. I’m trying to do everything. It’s just a matter of maybe having to do things in a different procedure or a different way or have some assistance lifting a heavier block or whatever. But as far as being able to do my job, I could pretty much do it.”
Indeed, he was not returned to his old job until he produced
a medical statement indicating that he could perform his essential job
functions. The court recognized that
his impairment affected a major life activity, but still held that he could not
show that he was disabled because “there is no evidence to suggest whether
appellant’s impairments, as described, substantially limit his ability to
perform the aforementioned (or any other) major life tasks as compared to most
people in the general population.” The
Court indicated that it was following the more lenient federal post-ADAA law.
The Court recognized that a perceived disability claim could
exist without the employer believing that the impairment substantially limited
a major life activity. However, “courts
have held that mere awareness of a condition, even with work restrictions, does
not establish that an employer regarded an employee as disabled.” Further, the Court observed that the employer
had permitted the employee to return to his old job without any medical
restrictions. The Court also refuse to
consider a few lighthearted comments made
about his injury to constitute evidence of an unlawful perception of a
disability.
The Court rejected the public
policy claim on the basis that the relevant OSHA statute only protected
employees who filed claims or who testified in OSHA proceedings.
Section 660(c), Title 29, U.S. Code, in its entirety, provides as follows:
No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.
In this case, the
employee did neither. The employer notified OSHA about the
accident and the injury and the employee merely participated in the OSHA investigation. The Court found that mere participation in an OSHA investigation
was insufficient to constitute protected conduct or the clarity element of a public policy claim.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
