Dragmen v. Swagelok Co. , 2014 Ohio 5345 ( 2014 )

[Cite as Dragmen v. Swagelok Co., 2014-Ohio-5345.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101584
SCOT DRAGMEN
PLAINTIFF-APPELLANT
vs.
SWAGELOK COMPANY
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-812390
BEFORE: Blackmon, J., Boyle A.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: December 4, 2014
ATTORNEYS FOR APPELLANT
Brian D. Spitz
Fred M. Bean
The Spitz Law Firm, L.L.C.
4620 Richmond Road
Suite 290
Warrensville Heights, Ohio 44128
ATTORNEYS FOR APPELLEE
Amy L. Kullik
Jeffrey M. Embleton
Jaclyn C. Staple
Mansour, Gavin, Gerlack & Manos Co.
North Point Tower
1001 Lakeside Avenue
Suite 1400
Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Scot Dragmen (“Dragmen”) appeals the trial court’s judgment granting
summary judgment in favor of appellee Swagelok Company (“Swagelok”) and assigns the
following three errors for our review:
I. The trial court committed reversible error by wrongfully weighing the facts.
II. The trial court committed reversible error by determining that Dragmen did
not satisfy his prima facie case for workers’ compensation retaliation.
III. The trial court committed reversible error by determining that no genuine
issue of material fact remained as to whether Swagelok’s alleged reasons for
terminating Dragmen were a pretext for worker’s compensation retaliation.
{¶2} After reviewing the record and relevant law, we affirm the trial court’s decision.
The apposite facts follow.
{¶3} On August 16, 2013, Dragmen filed a complaint against Swagelok alleging he
was terminated in retaliation for filing a workers’ compensation claim and also alleged a claim
for intentional infliction of emotional distress. Swagelok answered the complaint and filed a
motion for summary judgment arguing Dragmen was terminated for committing two safety
violations. Dragmen opposed the motion.
{¶4} Dragmen was an at-will employee with Swagelok from May 8, 2008 until his
termination on May 9, 2013. His position changed through the years, but at the time he was
terminated, Dragmen was a maintenance technician responsible for repairing machines.
{¶5} On March 14, 2013, Dragmen was injured after failing to follow Swagelok’s
Lockout/Tagout procedure before attempting to repair a machine. He failed to “de-energize the
machine” and used a noninsulated tool to remove a fuse. He suffered an electrical arc burn to
his hand. Dragmen admitted he should have followed procedure prior to repairing the machine.
{¶6} Before he left work to receive medical treatment, Swagelok’s Environmental and
Safety Coordinator, Micah Ellis, gave Dragmen information so that he could contact Swagelok’s
third-party workers’ compensation claims administrator.
{¶7} Dragmen missed two days of work due to his injury. Dragmen did not tell
anyone at Swagelok regarding his filing a claim for workers’ compensation. Dragmen stated he
was not demoted and his pay was not reduced after filing the claim. He also admitted that
Swagelok did not dispute the workers’ compensation claim, and his medical bills were paid.
{¶8} Dragmen was subsequently placed into the Associate Improvement Plan (“AIP”)
due to the safety violation. According to Dragmen’s supervisor, Graig Michalski, the purpose of
the AIP is to communicate a policy violation and to make sure the violation does not occur again.
Michalski gave Dragmen a document regarding the AIP program so that he could be placed in
the AIP. The document described the performance issue that resulted in the safety violation and
noted that Dragmen had received training regarding the proper procedure for repairing the
machine. The document stated that Dragmen’s supervisor would review the procedures again
with Dragmen and that he would be periodicially monitored while working on equipment.
Lastly, the document stated as follows:
If performance or behavior is not improved to an acceptable level, expectations
are not met within the given time frame, or if repeat and/or additional violations
occur, further disciplinary action, up to and including termination may occur.
{¶9} Dragmen was reluctant to sign the document, but eventually did so. According to
Michalski’s supervisor, Brian Milks, the employee’s signature on the AIP document was
voluntary, but even if he or she did not sign, the employee would be expected to comply with the
plan. The form had a blank space for the employee to provide any comments; however,
Dragmen left it blank.
{¶10} On May 8, 2013, just three weeks after being placed into the AIP, Dragmen
violated Swagelok’s safety protocol. A co-employee was sitting at the workstation usually used
by Dragmen. Dragmen told the employee to get out of “my chair.” An argument ensued, and
Dragmen pulled the chair out from underneath the co-employee, dumping him onto the floor.
{¶11} Another co-employee reported the incident to Michalski and Michalski reported the
incident to Milks. Milks spoke to Dragmen and told him the employee could have hit his head
or been injured in some other way. Dragmen replied that the employee was not injured, so it
was not a “big deal.” Jacki Thrasher of the human resources department was contacted. After
speaking to witnesses and the individuals involved, Dragmen was terminated on May 9, 2013.
Thrasher, Michalski, and Milks were the individuals who decided that Dragmen should be
terminated. All three testified that they were not aware of Dragmen’s workers’ compensation
claim when they decided to terminate him. According to Michalski, Dragmen was terminated
because it was his second violation concerning safety within a short-time period.
{¶12} The trial court granted summary judgment in favor of Swagelok, stating in
pertinent part:
Defendant terminated plaintiff’s employment following a second safety violation
occurring three weeks after he was placed in an AIP for the first safety violation.
The discipline and subsequent termination were not punitive actions taken in
response to plaintiff’s workers’ compensation claim but in response to legitimate
safety concerns about which plaintiff had been informed. Defendant did not
object to the payment of plaintiff’s workers’ compensation claim. Plaintiff has
failed to establish that there was a causal connection between his discharge and
the workers’ compensation claim.
Further, assuming arguendo that plaintiff has established a prima facie case, the
record revealed no fact suggesting that the employer fired him for any other
reason than his safety rule infractions.
{¶13} The trial court also granted judgment as to Dragmen’s claim for intentional
infliction of emotional distress. Dragmen only appeals the trial court’s judgment as to his
retaliation claim.
Prima Facie Case
{¶14} We will address Dragmen’s first and second assigned errors together. Dragmen
contends the trial court erred by weighing the evidence and that there was a material issue of fact
regarding whether his superiors knew he had filed a workers’ compensation claim before he was
terminated.
{¶15} We review an appeal from summary judgment under a de novo standard of review.
Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing Smiddy v. The
Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio Apt. Assn. v.
Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th Dist.1997).
Accordingly, we afford no deference to the trial court’s decision and independently review the
record to determine whether summary judgment is appropriate.
{¶16} Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine issue as
to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as
a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party,
reasonable minds can reach only one conclusion that is adverse to the nonmoving party. We
conclude that Swagelok was entitled to summary judgment as a matter of law.
{¶17} R.C. 4123.90 provides in pertinent part: “No employer shall discharge, demote,
reassign, or take any punitive action against any employee because the employee filed a claim * *
* 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.”
{¶18} To establish a prima facie case for retaliatory discharge, an employee must prove;
(1) that the employee was injured on the job; (2) that the employee filed a claim for workers’
compensation benefits; and (3) that the employee was discharged in contravention of R.C.
4123.90. Wilson v. Riverside Hosp., 18 Ohio St.3d 8, 479 N.E.2d 275 (1985), syllabus. Once
the plaintiff establishes each element of the prima facie case, the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for terminating the employee. If the employer
does so, the burden shifts back to the plaintiff to demonstrate that the reason offered for the
termination is a pretext for retaliation. Id.{¶19} It is undisputed that Dragmen meets the first two criteria. That is, he was injured
on the job and filed a workers’ compensation claim. The trial court concluded the third prong
was not met because Dragmen provided no evidence that he was discharged for filing the claim.
A court does not engage in the weighing of the evidence by finding material evidence to support
the plaintiff’s claim is lacking.
{¶20} There is no evidence that the Swagelok employees who made the decision to
terminate Dragmen were aware that Dragmen had filed a workers’ compensation claim. The
relevant employees all testified in their depositions that they had no knowledge at the time of
Dragmen’s termination and that he had filed a workers’ compensation claim. Dragmen admitted
that he did not tell anyone besides Swagelok’s third party workers’ compensation administrator.
As this court held in Meyers v. Goodrich Corp., 8th Dist. Cuyahoga No. 95996, 2011-Ohio-3261,
“[t]o be liable for retaliating against an employee for taking part in a protected activity, the
employer must have knowledge of it.” Id. at ¶ 22.
{¶21} Although there was no direct evidence that the supervisors were aware of the
claim, Dragmen argues that it can be inferred they had knowledge of the claim by virtue of the
fact that Dragmen was injured on the job. However, in Meyers, we held that although
circumstantial evidence can establish knowledge, “it is not enough for an employee to simply
make general allegations that ‘decisionmakers generally have knowledge of charges filed by
employees.’” Id., quoting Scott v. Eastman Chem. Co., 275 Fed.Appx. 466, 482 (C.A. 6 2009).
{¶22} Dragmen relies on the First District’s decision in Kent v. Chester Labs, Inc., 144
Ohio App.3d 587, 761 N.E.2d 60 (1st Dist.2001), to show direct evidence that the employer was
aware a claim is not necessary to overcome summary judgment. In Kent, the plaintiff suffered a
back injury and was terminated after filing a workers’ compensation injury. However, in that
case, there was evidence that the plaintiff asked her supervisor if she could receive workers’
compensation for the injury. The employer told her several times that her injury was not
work-related and advised her not to pursue a claim. She subsequently filed a claim and was
terminated for being dishonest about how she was injured. Plaintiff successfully avoided
summary judgment even though there was no direct evidence that her employer knew a claim
was filed. However, in that case, there was evidence she was discouraged from filing a claim
and terminated after she tried to do so creating a direct inference that she was terminated for
filing the claim.
{¶23} Dragmen argues that certain actions taken by Swagelok likewise showed his
supervisors had knowledge that he filed a workers’ compensation claim. However, the evidence
does not center on the nature of Dragmen’s injury like it did in Kent or involve evidence that the
employer advised Dragmen not to file a workers’ compensation claim.
{¶24} Dragmen claims that several days after filing his workers’ compensation claim, he
was placed in the company’s AIP, which shows the hostile attitude of the company regarding his
filing a workers’ compensation claim. However, the evidence presented by Swagelok was that
having to go through the AIP was standard practice after a safety violation. In fact, Michalski
testified in his deposition that prior to Dragmen’s placement in AIP, another employee was
placed in AIP for failing to lockout a machine. That employee was not injured. “If the
company policy is neutral in its application, the correlation between the timing of the discharge
and the claim is not sufficient to meet the burden of proof.” Metheney v. Sajar Plastics, Inc., 69
Ohio App.3d 428, 432, 590 N.E.2d 1311 (11th Dist.1990). Dragmen failed to show that others
who violated safety practices were not required to go through the program. Also, although he
was approached about the AIP soon after he filed his workers’ compensation claim, it was
presented to him the first day he returned to work after the safety violation. Therefore, it was the
first opportunity that Swagelok had to place him in the AIP.
{¶25} He also argues that the company’s hostile attitude was shown by Milks requiring
him to speak at the company’s safety seminar. When he told Milks he did not want to speak,
Dragmen stated Milks told him it “would be in his best interest to do so.” Milks stated the
purpose of having Dragmen give the presentation was to stress the importance of following
safety protocols to the other employees, not to humiliate Dragmen. Milks also stated that the
presentation complied with the AIP plan because it showed Dragmen was “engaging in
improvements” regarding the mistake he made. Moreover, having Dragmen describe his
accident and stressing to his co-employees to follow the safety protocols to lockout the machines,
is hardly an adverse action.
{¶26} Finally, he argues that although “horseplay” is defined as a minor infraction under
Swagelok’s progressive discipline policy, the incident where he pulled his co-employee’s chair
out from under him was treated as a major safety violation. Swagelok created the AIP to replace
its progressive discipline policy; therefore, Dragmen is relying on an outdated policy. The AIP
document put him on notice that if “additional violations occur” he could face termination. It
did not require the second violation to be a “major violation.” Milks also stated that there is a
difference between “throwing paper airplanes” and putting another employee at risk by pulling a
chair out from underneath him. The second could injure an employee.
{¶27} Our review of the evidence shows the trial court did not err by granting summary
judgment in Swagelok’s favor. Dragmen failed to show a causal connection between his filing
the workers’ compensation claim and his subsequent termination. This connection was crucial
to his claim. “The scope of R.C. 4123.90 is narrow and protects only against adverse
employment actions in direct response to the filing or pursuit of a workers’ compensation claim.”
Ayers v. Progressive RSC, Inc., 8th Dist. Cuyahoga No. 94523, 2010-Ohio-4687, ¶ 14. “R.C.
4123.90 does not prohibit a discharge for just and legitimate termination of employment. It does
not suspend the rights of an employer, nor insulate an employee from an otherwise just and
lawful discharge.” Markham v. Earle M. Jorgensen Co., 138 Ohio App.3d 484, 493, 741 N.E.2d
618 (8th Dist.2000), quoting Brown v. Whirlpool Corp., 3d Dist. Marion No. 9-86-20, 1987 Ohio
App. LEXIS 8534 (Sept. 1, 1987).
{¶28} Because Dragmen failed to sustain his burden to establish a prima facie case of
retaliatory discharge, summary judgment against Dragmen on his wrongful discharge claim was
proper.
{¶29} Given our disposition of the first and second assigned errors, Dragmen’s third
assigned error is moot because it concerns whether Swagelok’s reasons for terminating him were
pretextual. We do not get to this stage of the analysis because Dragmen failed to set forth a
prima facie case of retaliation.
{¶30} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas Court
to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, A.J., and
EILEEN A. GALLAGHER, J., CONCUR