Jones v. Natural Essentials ( 2022 )

[Cite as Jones v. Natural Essentials, 2022-Ohio-1010.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
TERESA JONES, et al., CASE NO. 2021-P-0066
Plaintiffs-Appellants,
Civil Appeal from the
-v- Court of Common Pleas
NATURAL ESSENTIALS, INC.,
Trial Court No. 2018 CV 00259
Defendant-Appellee.
OPINION
Decided: March 28, 2022
Judgment: Affirmed
Natalie F. Grubb and Mark E. Owens, Grubb & Associates, LPA, 437 West Lafayette
Road, Suite 260-A, Medina, OH 44256 (For Plaintiffs-Appellants).
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).
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 R.C. 4123.90 with respect to T.
Jones. Count II raised a claim of Violation of the Ohio Civil Rights Act under R.C. 4112.01
et seq. with respect to all plaintiffs. Count III raised a claim of Violation of Ohio Public
Policy with respect to all plaintiffs. Count IV raised a claim of Creation of Hostile Work
Environment Based on Disability and Relationship to Person with Disability in violation of
R.C. 4112.02(A) and 4112.99.
{¶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.
2
Case No. 2021-P-0066
{¶11} Teresa Jones started working at Natural Essentials on August 17, 2013, as
a picker/packer, i.e., she filled orders by gathering and packaging products from the
warehouse. She was hired to work weekends. T. Jones had another job as a glass
inspector at VisiMax working Monday through Friday.
{¶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,
3
Case No. 2021-P-0066
requests for time off were supposed to be in writing. Pellegrino testified that he wanted
them terminated on Sunday and had them removed from the company payroll. As a shift
supervisor, however, Owens did not have authority to terminate employees. Director of
operations, Chad Dierckman, would execute the terminations but would not be at work
until September 16 (Monday).
{¶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.
4
Case No. 2021-P-0066
{¶19} Robert Lovejoy began work at Natural Essentials on August 26, 2013. He
worked Monday through Friday in the shipping department operating a tow motor.
{¶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
5
Case No. 2021-P-0066
past, text messaging during work hours. Actually, the final straw was the content [of the
messages].”
{¶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 Civ.R. 56(C).”
{¶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 R.C.
§4123.90.”
{¶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.”
6
Case No. 2021-P-0066
{¶29} “[5.] The Trial Court Erred in Relying on Incompetent Deposition Testimony
as to Legal Conclusions by Lay Witnesses.”
{¶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.”
Civ.R. 56(C). An appellate court’s “review of a summary-judgment ruling is de novo.”
Fradette v. Gold, 157 Ohio St.3d 13, 2019-Ohio-1959, 131 N.E.3d 12, ¶ 6.
{¶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
7
Case No. 2021-P-0066
Natural Essentials used the responses to these questions to support its Motion for
Summary Judgment.
{¶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
8
Case No. 2021-P-0066
judgment purposes,’ (1) the deposition must be filed with the court or otherwise
authenticated, (2) the deponent must sign the deposition or waive signature, and (3) there
must be a certification by the officer before whom the deposition is taken.” Wholesale
Builders Supply, Inc. v. Green-Source Dev., L.L.C., 8th Dist. Cuyahoga No. 99711, 2013-
Ohio-5129, ¶ 9. In the present case, Natural Essentials attached partial copies of the
plaintiffs’ depositions to its Motion for Summary Judgment. The depositions in question
were taken during the pendency of a prior lawsuit involving the same parties and similar
claims. See Jones v. Natural Essentials, Inc., Portage C.P. No. 2014 CV 00215,
voluntarily dismissed pursuant to Civil Rule 41(A)(1)(a) on January 20, 2015.1
{¶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 Civil Rule 56. Lewis Potts,
Ltd. v. Zordich, 11th Dist. Trumbull No. 2018-T-0028, 2018-Ohio-5341, ¶ 41 (“as no
objection was made to the affidavit or attached document, the trial court was free to
consider the improper summary judgment evidence”); Millstone Condominiums Unit
Owners Assn. v. 270 Main St., 11th Dist. Lake No. 2011-L-078, 2012-Ohio-2562, ¶ 62;
Bank of New York Mellon v. Fisher, 8th Dist. Cuyahoga No. 108855, 2020-Ohio-4742, ¶
19. Here, the plaintiffs neither moved to strike nor objected to the partial depositions.
Accordingly, we find no error in the consideration of these documents in determining the
merits of Natural Essentials’ Motion for Summary Judgment.
1. The following depositions from Case No. 2014 CV 00 215 were filed in the present case: Pellegrino, Vol.
II; Alice Worman; Michael Edwards; Karen Collins; and Faith Owens. Portions of the following depositions
were proffered in support of Natural Essentials’ Motion for Summary Judgment: Pellegrino, Vol. 1; Teresa
Owens; Kevin Owens; Robert Lovejoy; Chad Dierckman; Lisa Davis; Kelly Porter; and Betty Clapp.
9
Case No. 2021-P-0066
{¶35} The fifth assignment of error is without merit.
{¶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 Civ.R. 56(C).” Appellants’ brief at 13. Apart from these claims the
plaintiffs make no particular argument under this assignment of error and attempt to rectify
the situation by citing parts of the factual record in their Reply Brief. Thus, the argument
as here raised will be disregarded. Whether genuine issues of material fact existed to
preclude summary judgment with respect to the plaintiffs’ claims for retaliation,
discrimination, and violation of public policy will be considered in the following
assignments of error. App.R. 12(A)(2) (“[t]he court may disregard an assignment of error
presented for review if the party raising it fails to identify in the record the error on which
the assignment of error is based”); Dressler v. Dressler, 11th Dist. Portage No. 91-P-
2312, 1992 WL 366998, *1.
{¶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 R.C. 4123.90.
{¶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.” R.C. 4123.90. “An employee presents a prima facie case for
10
Case No. 2021-P-0066
retaliatory discharge under R.C. 4123.90 when he or she demonstrates the following: (1)
he or she was injured on the job; (2) a worker’s compensation claim had been filed; and
(3) he or she was discharged in contravention of R.C. 4123.90.” (Citation omitted.)
Adovasio v. Girard Community Commt., 11th Dist. Trumbull No. 2008-T-0027, 2008-Ohio-
5016, ¶ 18.
{¶40} As noted by Natural Essentials, T. Jones’ statutory retaliation claim
pursuant to R.C. 4123.90 is barred by the fact that she was terminated before she filed
her workers’ compensation claim. “The language of R.C. 4123.90 is clear and
unambiguous that an employee must have either filed a claim or initiated or pursued
proceedings for workers’ compensation benefits prior to being discharged for his
employer to be liable under statute.” Bryant v. Dayton Casket Co., 69 Ohio St.2d 367,
433 N.E.2d 142 (1982), syllabus. Of course, as noted by the plaintiffs, “Ohio recognizes
a common-law tort claim for wrongful discharge in violation of public policy when an
injured employee suffers retaliatory employment action after injury on the job but before
the employee files a workers’ compensation claim or institutes or pursues a workers’
compensation proceeding.” Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-
Ohio-2723, 950 N.E.2d 938, paragraph two of the syllabus. The violation of public policy
claims will be considered under the fourth assignment of error.
{¶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). R.C.
11
Case No. 2021-P-0066
4112.02(A) (“[i]t shall be an unlawful discriminatory practice * * * [f]or any employer,
because of * * * disability * * * to discharge without just cause * * * that person”). Because
of the similarity between the federal Americans with Disabilities Act and Ohio disability
discrimination law, Ohio courts “can look to regulations and cases interpreting the federal
Act for guidance in [their] interpretation of Ohio law.” Columbus Civ. Serv. Comm. v.
McGlone, 82 Ohio St.3d 569, 573, 697 N.E.2d 204 (1998).
{¶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.” R.C. 4112.01(A)(13).
{¶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
12
Case No. 2021-P-0066
(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.
13
Case No. 2021-P-0066
Owens, and completed her shift in pain. * * * Ms. Owens failed to provide or instruct Ms.
Jones to complete an Incident / Accident Report form, as Ms. Owens was required to do
and was reprimanded [for not doing]. The evidence establishes that Ms. Jones was far
from ‘fine’ or ‘okay’ after her fall. Mr. Jones helped Ms. Jones into the car after their shifts
ended so that he could drive them home and continued to assist her at home in bathing,
changing compresses and household chores due to her pain and discomfort.” Appellants’
reply brief at 9-10. At most, this is evidence that T. Jones suffered injury and was in pain
following the fall. The fact that she completed her shift “in pain” and required K. Jones’
assistance in driving and at home does not imply knowledge on the part of Natural
Essentials. It does not raise any inference that Owens or Pellegrino was aware of her
condition. Cady at 417 (to establish that the employer knew or should have known that
an employee was disabled “the employer must know enough information about the
employee’s condition to conclude he is disabled”).
{¶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
14
Case No. 2021-P-0066
public policy, the plaintiff must show: “1. That [a] clear public policy existed and was
manifested in a state or federal constitution, statute or administrative regulation, or in the
common law (the clarity element). 2. That dismissing employees under circumstances
like those involved in the plaintiff’s dismissal would jeopardize the public policy (the
jeopardy element). 3. The plaintiff’s dismissal was motivated by conduct related to the
public policy (the causation element). 4. The employer lacked overriding legitimate
business justification for the dismissal (the overriding justification element).” (Citations
omitted.) Collins v. Rizkana, 73 Ohio St.3d 65, 69-70, 652 N.E.2d 653 (1995).
{¶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 R.C.
Chapter 4112 fail to satisfy the jeopardy element. In Wiles v. Medina Auto Parts, 96 Ohio
St.3d 240, 773 N.E.2d 526 (2002), the Ohio Supreme Court held that “there is no need to
recognize a common-law action for wrongful discharge if there already exists a statutory
remedy that adequately protects society’s interests.” Id. at 244. “In that situation, the
public policy expressed in the statute would not be jeopardized by the absence of a
common-law wrongful-discharge action in tort because an aggrieved employee has an
alternate means of vindicating his or her statutory rights and thereby discouraging an
employer from engaging in the unlawful conduct.” Id.; House at ¶ 16.
15
Case No. 2021-P-0066
{¶54} In the context of disability discrimination, an employer who violates the law
“is subject to a civil action for damages, injunctive relief, or any other appropriate relief.”
R.C. 4112.992; Rice v. CertainTeed Corp., 84 Ohio St.3d 417, 422, 704 N.E.2d 1217(1999) (R.C. 4112.99 provides for punitive as well as compensatory damages).
{¶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 Ohio Rev.Code § 4112.02 is not permitted”). Often cited
is Leininger v. Pioneer Natl. Latex, 115 Ohio St.3d 311, 2007-Ohio-4921, 875 N.E.2d 36,
which held that “a common-law tort claim for wrongful discharge based on Ohio’s public
policy against age discrimination does not exist, because the remedies in R.C. Chapter
4112 provide complete relief for a statutory claim for age discrimination.” Id. at ¶ 34. In
reaching this conclusion, the court described R.C. 4112.99 as “hav[ing] broad language
regarding the relief available” and “embracing the panoply of legally recognized pecuniary
2. We note that, as part of Sub. H.B. No. 352 (effective April 15, 2021), R.C. 4112.99 was amended to add
the following language (in italics): “(A) Whoever violates this chapter is subject to a civil action for damages,
injunctive relief, or any other appropriate relief. Except as otherwise provided in division (B) of this section,
a person may bring such a civil action in a court of competent jurisdiction. (B) A person is prohibited from
bringing a civil action for employment discrimination under this section.” According to the Section 3 of the
bill: “It is the intent of the General Assembly that common law claims for wrongful discharge are not available
for actions maintainable under Chapter 4112. of the Revised Code and that the procedures and remedies
set forth in Chapter 4112. of the Revised Code are the sole and exclusive procedures and remedies
available under state law for claims of unlawful discriminatory practice relating to employment that are
governed by that chapter.”
16
Case No. 2021-P-0066
relief” so as “to put the plaintiff in the same position as if the unlawful discriminatory
practice had not occurred.” Id. at ¶ 30. Although Leininger addressed age discrimination,
its holding has often been applied in the context of disability discrimination. Wakefield v.
Children’s Hosp., N.D. Ohio No. C2-06-1034, 2008 WL 3833798, *8, fn. 11 (cases cited);
Caplinger v. Uranium Disposition Servs., LLC, S.D. Ohio No. 2:08-cv-548, 2009 WL
367407, *6 (“Ohio Rev.Code § 4112 adequately protect[s] the interests of society and the
plaintiff in protecting against disability discrimination”); Slane v. MetaMateria Partners,
L.L.C., 176 Ohio App.3d 459, 2008-Ohio-2426, 892 N.E.2d 498, ¶ 25 (10th Dist.)
(appellant conceding that his “common-law tort claim for wrongful discharge based on
Ohio’s public policy against disability discrimination must fail because of the recent Ohio
Supreme Court case of Leininger”).
{¶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, which concluded that “there is no
indication that the principles expressed [in Wiles] are limited to FMLA-based claims.” Id.
at ¶ 37. 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 R.C. Chapter 4112.
{¶57} Alternatively, the plaintiffs’ public policy claims fail because they failed to
make a prima facie claim under R.C. Chapter 4112. “Many appellate districts have * * *
held that a wrongful-discharge claim based on a violation of R.C. 4112.02 must fail if the
17
Case No. 2021-P-0066
plaintiff does not establish a violation of R.C. 4112.02.” Bicudo v. Lexford Properties, Inc.,
157 Ohio App.3d 509, 2004-Ohio-3202, 812 N.E.2d 315, ¶ 93 (7th Dist.) (cases cited);
Fitch v. U.S. Foodservice Corp., 12th Dist. Butler No. CA2007-03-068, 2008-Ohio-282, ¶
22 (“based on the evidence presented [in support of his statutory claims], Fitch has failed
to raise any issue of material fact to prove his dismissal was motivated by conduct related
to the public policy, the causation element; and therefore, his [public policy] argument is
without merit”).
{¶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 R.C. §4123.90.” Appellants’ brief at 27.
{¶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 R.C. 4123.90 must prove that the adverse employment action was
retaliatory, which requires proof of a nexus between the adverse employment action and
the potential workers’ compensation claim.” Id. at paragraph three of the syllabus.
{¶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:
18
Case No. 2021-P-0066
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
19
Case No. 2021-P-0066
weekend off. The plaintiffs also claim that Dierckman testified that “it was the Fall that
caused Mr. Pellegrino to ultimately make the decision to terminate Ms. Jones and Mr.
Jones, not alleged absences.” Plaintiffs’ brief at 10. But this misconstrues the import of
Dierkman’s testimony. He stated: “She [Owens] brought it up during the discussion that
she [T. Jones] needed more time * * *, and since it was more time off and she missed so
many days, that Gary [Pellegrino] decided to terminate.” Dierckman was then asked,
“and then she [Owens] talked about [T. Jones] stumbling in the workplace?” He
responded, “correct.” Finally, the plaintiffs note that Pellegrino was aware that, if T. Jones
filed a workers’ compensation claim, his rates would increase.
{¶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
20
Case No. 2021-P-0066
workers’ compensation claim). These were sent during Lovejoy’s lunch break on
September 17 (Monday). However, Pellegrino testified that he instructed Dierckman to
terminate the Joneses that morning – before the text messages were sent and/or
discovered in the afternoon. Of course, it could be inferred that Pellegrino was lying about
communicating the decision to Dierckman that morning, and that the decision to terminate
the Joneses (as well as Lovejoy) was made after the text messages had been sent and
it was known that T. Jones was sore and possibly required medical attention and possibly
might seek workers’ compensation and that Owens, Pellegrino, and Dierckman agreed
to conceal the truth and alter the payroll to make it appear that the Joneses were removed
from the system prior to working their Sunday shifts and that all this was effected between
the discovery of Lovejoy’s text messages and Dierckman’s call to T. Jones later that
afternoon. It is possible to infer all this, but it is not reasonable to do so. Accordingly, the
plaintiffs have failed to raise a genuine issue of material fact as to causation necessary
to support their public policy retaliation claims. Nance v. Lima Auto Mall, Inc., 3d Dist.
Allen No. 1-19-54, 2020-Ohio-3419, ¶ 64 (“[w]hile Angelina was terminated in between
her date of injury and the point at which she filed her workers’ compensation claim, she
has not pointed to facts in the record that would connect her employer’s decision to
terminate her and her decision to file a workers’ compensation claim”).
{¶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
21
Case No. 2021-P-0066
regulations.” Plaintiffs’ brief at 27-28. “Ohio public policy favoring workplace safety is an
independent basis upon which a cause of action for wrongful discharge in violation of
public policy may be prosecuted.” Pytlinski v. Brocar Prods., Inc., 94 Ohio St.3d 77, 760
N.E.2d 385 (2002), syllabus. The statutory and constitutional provisions identified by the
plaintiffs are those cited in Pytlinski as “support[ing] workplace safety and form[ing] the
basis for Ohio’s public policy.” Id. at 79, fn. 2. On them rests the holding “that retaliation
against employees who file complaints regarding workplace safety clearly contravenes
the public policy of Ohio.” Id. at 79-80.
{¶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
22
Case No. 2021-P-0066
in the course of such workmen’s employment, laws may be passed establishing a state
fund to be created by compulsory contribution thereto by employers, and administered by
the state, determining the terms and conditions upon which payment shall be made
therefrom.” The focus of both Sections is legislative activity rather than the application of
particular safety or workers’ compensation laws. Accordingly, they do not support the
plaintiffs’ claims.
{¶67} Revised Code 4101.11 provides that “[e]very employer * * * shall furnish a
place of employment which shall be safe for the employees therein” and 4101.12 that
“[n]o employer shall require, permit, or suffer any employee to go or be in any employment
or place of employment which is not safe.” Authorities are split on whether these statutory
provisions satisfy the clarity element of a public policy claim based on workplace safety.
Compare Romero v. Middletown, 479 F.Supp.3d 660, 675 (S.D.Ohio 2020) (“[a]lthough
these statutes are certainly directed at the broad topic of workplace safety, and adopt a
general rule that work premises should be maintained in a safe manner, they do not
appear to articulate any specific public policy of the type that would support a discharge
in violation of public policy claim”), and Whitaker v. FirstEnergy Nuclear Operating Co.,
6th Dist. Ottawa No. OT-12-021, 2013-Ohio-3856, ¶ 25 (R.C. 4101.11 and 4101.12 “are
very general and broad”), with Blackburn v. Am. Dental Ctrs., 2014-Ohio-5329, 22 N.E.3d
1149, ¶ 29 (10th Dist.) (R.C. 4101.11 and 4101.12 support an “Ohio public policy against
retaliation by employers against employees who report workplace conditions that
jeopardize staff and dental patient safety”), and Lightner v. CB&I Constructors, Inc., S.D.
Ohio No. 14-CV-2087, 2016 WL 6693548, *10 (“Pytlinksi is still controlling, it is still good
law”) and *9, fn. 6 (“Whitaker was flat-out wrongly decided”).
23
Case No. 2021-P-0066
{¶68} The issue of whether R.C. 4101.11 and 4101.12 satisfy the clarity element
of an Ohio public policy claim is not one we need decide. It has further been held that “a
plaintiff who cites workplace safety as the public policy satisfying the clarity element …
must have at least lodged complaints about workplace safety in order to satisfy the
jeopardy element of the claim.” (Citation omitted.) Jermer v. Siemens Energy &
Automation, Inc., 395 F.3d 655, 658 (6th Cir.2005); Beckloff v. Amcor Rigid Plastics USA,
LLC, 2017-Ohio-4467, 93 N.E.3d 329, ¶ 42 (the same). Here, there is no evidence that
T. Jones made any complaints to Natural Essentials regarding workplace safety apart
from her written statement that she fell while being chased by bees. This statement falls
far short of indicating “any underlying governmental policy with the degree of specificity
and clarity necessary to give a reasonable employer notice of the policy basis of the
complaint.” Jermer at 660. Accordingly, the plaintiffs’ claims under R.C. 4101.11 and
4101.12 fail. Quillen-Smith v. U.S. Bank, N.A., S.D. Ohio No. 3:20-cv-364, 2021 WL
1192683, *3 (plaintiff’s claim is properly dismissed where she “does not allege that she
lodged any complaints about workplace safety or U.S. Bank’s failure to protect its
employees”).
{¶69} Revised Code 4121.13(A) and 4121.17(A) provide, respectively, for the
administrator of workers’ compensation to determine which “means [and] methods of
protection are best adapted to render the employees of every employment and place of
employment * * * safe,” and for an investigation by the bureau of workers’ compensation
“[u]pon petition by any person that any * * * place of employment is not safe or is injurious
to the welfare of any employee.” Like the constitutional provisions cited by the plaintiffs,
these statutes fail to satisfy the clarity element of a public policy claim. They authorize
24
Case No. 2021-P-0066
the administrator and bureau of workers’ compensation to undertake actions having no
particular relevance to the situation of Natural Essentials.
{¶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.”
29 U.S.C. 654(a)(1) and (2). We find the plaintiffs’ reliance on this Section unavailing in
that, as with R.C. 4101.11 and 4101.12, T. Jones never submitted an OSHA complaint or
otherwise reported a violation of state or federal labor law. “[T]he public policy of [Ohio]
* * * that employees be provided with a safe work environment and that unsafe working
conditions be corrected” is violated by “[r]etaliation against employees who file [OSHA]
complaints concerning unsafe or unhealthy conditions in the workplace [and] is an
absolute affront to Ohio’s public policy favoring workplace safety.” Allman v. Walmart,
Inc., 967 F.3d 566, 573-574 (6th Cir.2020), citing Kulch v. Structural Fibers, Inc., 78 Ohio
St.3d 134, 152-153, 677 N.E.2d 308 (1997); 29 U.S.C. 660(c) (prohibiting the discharge
of an employee for filing an OSHA complaint); R.C. 4113.52(B) (prohibiting discriminatory
or retaliatory action against an employee for reporting violations of state or federal law).
Prior to her termination, T. Jones did not report a violation of OSHA or any other state or
federal employment statute and, accordingly, cannot bring a public policy claim based on
those statutes. Doody v. Centerior Energy Corp., 137 Ohio App.3d 673, 675, 739 N.E.2d
851 (11th Dist.2000) (“reporting safety concerns to OSHA satisfied the clarity and
jeopardy elements of the tort because federal law protects employees from being
25
Case No. 2021-P-0066
discharged for filing complaints related to OSHA, which is consistent with Ohio’s public
policy in favor of workplace safety”).
{¶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.
26
Case No. 2021-P-0066