[Cite as Copen v. CRW, Inc., 2017-Ohio-349.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

TOMMY COPEN                                           C.A. No.    15AP0034

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CRW, INC.                                             COURT OF COMMON PLEAS
                                                      COUNTY OF WAYNE, OHIO
        Appellee                                      CASE No.   13-CV-0129

                                DECISION AND JOURNAL ENTRY

Dated: January 31, 2017



        CARR, Presiding Judge.

        {¶1}    Appellant, Tommy Copen, appeals from the judgments of the Wayne County

Court of Common Pleas, granting summary judgment in favor of Appellee, CRW, Inc., and

denying his motion for leave to file an amended complaint. We affirm in part, reverse in part,

and remand the matter for further proceedings.

                                                 I.

        {¶2}    CRW, Inc. (“CRW”) hired Mr. Copen to work as a truck driver in 2009. Mr.

Copen suffered a workplace injury in 2010 and subsequently filed a workers’ compensation

claim. The Bureau of Workers’ Compensation allowed the claim for a lumbosacral sprain and

contusion to the right foot. As a result of his injuries, CRW offered Mr. Copen a light duty

position that included washing the trucks, which he accepted. The light duty position, like his

truck driving position, did not require Mr. Copen to work on the weekends.
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       {¶3}    According to CRW, due to a seasonal change in the flow of business, it offered

Mr. Copen a new light duty position that would require him to work on the weekends. The offer

required Mr. Copen to report to work the following day, a Saturday. Mr. Copen, however, did

not report to work the next day. Instead, he reported to work as usual on the following Monday

to discuss the change in his schedule with Dennis Brown, CRW’s Director of Safety and Human

Resources. There is no dispute that Mr. Copen was upset about the proposed schedule change

because it required him to work on the weekends, so he declined the offer. Mr. Brown did not

provide Mr. Copen with an alternative schedule and, according to CRW, Mr. Copen became irate

and stormed out of Mr. Brown’s office.

       {¶4}    There is no dispute that Mr. Copen’s employment with CRW ended after his

meeting with Mr. Brown. There is a dispute, however, as to whether Mr. Copen quit, or whether

CRW fired him. According to CRW, Mr. Copen voluntarily terminated his employment due to

his insubordination in refusing to accept the new light duty work schedule. Mr. Copen, on the

other hand, maintains that CRW terminated him and that it changed his work schedule in an

attempt to force him to quit.

       {¶5}    Mr. Copen sued CRW in 2010, but voluntarily dismissed that action without

prejudice. This appeal stems from Mr. Copen’s re-filed case wherein he asserted claims against

CRW for: (1) retaliatory discharge based upon his pursuit of a workers’ compensation claim in

violation of R.C. 4123.90; and (2) discrimination based upon his actual or perceived disability in

violation of R.C. 4112.02. Following the depositions of several CRW employees, Mr. Copen

moved for leave to file an amended complaint, arguing that the deposition testimony revealed

that CRW’s President (Christopher Wood) and Mr. Brown arranged for a private investigator to

surreptitiously videotape Mr. Copen while he was in a public place. He, therefore, sought to
                                                3


amend his complaint to include a count for civil conspiracy against Mr. Wood, Mr. Brown, and

the third-party administrator for CRW’s workers’ compensation claims. Two days later, before

CRW filed a response, the trial court denied Mr. Copen’s motion. Mr. Copen moved for

reconsideration and CRW filed a brief in opposition, asserting, in part, that Mr. Copen was aware

of the surveillance on the day it was taken, that the video was provided to Mr. Copen in response

to discovery requests, and that the video was not relevant to the underlying case because it was

taken after Mr. Copen’s employment with CRW had ended. CRW attached an affidavit from

Mr. Wood, who averred that the video was taken in July of 2011, which was after Mr. Copen’s

employment with CRW had ended. The trial court ultimately denied Mr. Copen’s motion.

       {¶6}    After a period of discovery, CRW moved for summary judgment on both of Mr.

Copen’s claims. CRW advanced several arguments in its motion, including: (1) Mr. Copen

could not establish that CRW retaliated against him or took any adverse employment action

against him because he terminated his own employment and the change in his schedule did not

constitute an adverse employment action; (2) even if CRW did take an adverse employment

action against him, it had legitimate, non-discriminatory and non-retaliatory reasons for doing so;

(3) Mr. Copen could not establish that he was disabled, or that CRW perceived him as being

disabled, for purposes of his disability discrimination claim; and (4) Mr. Copen could not

establish that CRW’s proffered legitimate, non-discriminatory and non-retaliatory reasons for

taking any adverse employment actions were a mere pretext for unlawful retaliation and

discrimination.

       {¶7}    In response, Mr. Copen argued that CRW did, in fact, take an adverse

employment action against him by materially changing his work schedule and by terminating

him after he told CRW that he would be unable to comply with the new schedule. He further
                                                 4


argued that CRW’s proffered legitimate, non-retaliatory and non-discriminatory reasons for

doing so were a mere pretext for unlawful retaliation and discrimination. In support of his

argument, Mr. Copen asserted that CRW’s President (Mr. Wood) and Director of Safety and

Human Resources (Mr. Brown) expressed disdain regarding his injuries, questioned their

legitimacy, and believed that he was manipulating the system in order to obtain benefits. He

further asserted that CRW was aware that he could not work on weekends and changed his

schedule in an attempt to force him to quit so that it would not have to pay him unemployment

benefits. Regarding CRW’s claim that he could not establish that he is disabled, Mr. Copen

argued that he is disabled as defined in R.C. 4112.01(A)(13) because his physical injuries limit

his ability to walk, stand, and work. He also argued that CRW perceived him as being disabled

because it knew about his injuries and received certain medical notes and test results regarding

his condition.

       {¶8}      The trial court granted CRW’s motion, holding that no genuine issue of material

fact remained, and that CRW was entitled to judgment as a matter of law. Mr. Copen now

appeals, raising three assignments of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE’S MOTION
       FOR SUMMARY JUDGMENT BECAUSE GENUINE ISSUES OF
       MATERIAL FACT EXIST AS TO APPELLANT’S CLAIMS FOR
       RETALIATORY DISCHARGE UNDER R.C. 4123.90 AND PERCEIVED
       DISABILITY DISCRIMINATION UNDER R.C. 4112.02

       {¶9}      In his first assignment of error, Mr. Copen argues that the trial court erred by

granting summary judgment in favor of CRW because he presented prima facie cases for both

retaliatory discharge and disability discrimination, and genuine issues of material fact remained
                                                      5


to be litigated. More specifically, Mr. Copen argues that genuine issues of material fact exist

regarding: (1) whether CRW took an adverse employment action against him; (2) the causal

connection between his termination and his pursuit of the workers’ compensation claim; (3)

whether CRW’s reasons for unilaterally changing his work schedule and terminating his

employment were pretextual; (4) whether he is disabled and/or perceived to be disabled by

CRW; and (5) whether he could safely and substantially perform the essential functions of the

job despite his disability or perceived disability.

       {¶10} We begin our analysis with a review of the trial court’s order. It states:

       The matter came before the Court on Defendant’s Motion for Summary Judgment
       with respect to Plaintiff’s claims for retaliation under R.C. 4123.90 and disability
       discrimination under R.C. 4112.02. This Court has considered the pleadings,
       affidavits, appropriate exhibits, and memoranda, and construed the evidence most
       strongly in favor of the non-moving party. The Court finds that there are no
       genuine issues of material fact remaining before the Court on the issues of
       retaliation and disability discrimination and that reasonable minds can come to
       but one conclusion and that conclusion is adverse to the Plaintiff and that the
       Defendant is entitled to judgment as a matter of law. It is, therefore, ordered,
       adjudged and decreed that judgment is hereby granted in favor of Defendant,
       CRW, Inc., against Plaintiff, Tommy Copen, on Plaintiff’s claims under R.C.
       4123.90 and R.C. 4112.02.

       {¶11} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,

77 Ohio St.3d 102, 105 (1996). While we afford no deference to the trial court, this Court has

previously held that we cannot properly review an award of summary judgment in a case of this

complexity when a trial court’s judgment entry provides no indication as to what it actually

decided. Mourton v. Finn, 9th Dist. Summit No. 26100, 2012-Ohio-3341, ¶ 8. “The trial court’s

judgment entry and reasoning are part of the de novo review process [because,] [e]ven though a

reviewing court is not required to defer to the trial court’s reasoning, the trial court’s analysis

often has a persuasive effect during appellate review.” Id. at ¶ 6, quoting Scassa v. Dye, 7th Dist.

Carroll No. 02CA0779, 2003-Ohio-3480, ¶ 21.
                                                 6




       {¶12} Here, the record contains hundreds of pages of deposition testimony, CRW

advanced multiple alternative grounds for summary judgment, and Mr. Copen opposed CRW’s

motion with multiple arguments and citations to the record regarding the existence of genuine

issues of material fact. Given the lack of any indication as to what the trial court actually

decided (e.g., whether Mr. Copen could not establish that he suffered an adverse employment

action, or whether he could not establish that CRW’s proffered legitimate, non-discriminatory

and non-retaliatory reasons for taking any adverse employment actions were a mere pretext for

unlawful retaliation and discrimination), this Court is turned into the trial court on appeal.

Mourton at ¶ 9 (“This Court has consistently held that it is the trial court’s duty to resolve issues

in the first instance.”). As this Court has stated, “[i]t is also unfair to the parties, who are

essentially forced to simply refile their summary judgment motions in the appellate court due to

being unsure why the trial court rendered the decision it did. Practically speaking, if a trial court

does not set forth any analysis, the parties may just as well file their summary judgment motions

in this Court.” Id.

       {¶13} In light of the complexity of this case and the trial court’s failure to provide any

indication as to what it actually decided, we reverse and remand the matter to the trial court.

Mourton at ¶ 9.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
       APPELLANT’S MOTION FOR LEAVE TO FILE FIRST AMENDED
       COMPLAINT INSTANTER BASED UPON DEPOSITION TESTIMONY THAT
       REVEALED ADDITIONAL FACTS LEADING TO ADDITIONAL CAUSES
       OF ACTION AND A TRIAL DATE HAD NOT YET BEEN SET.
                                                7


       {¶14} In his second assignment of error, Mr. Copen argues that the trial court abused its

discretion by denying his motion for leave to file an amended complaint because the motion was

unopposed, new evidence revealed during depositions warranted the amendments (i.e., testimony

regarding CRW’s surveillance of Mr. Copen), and the amendment would not have prejudiced

CRW because a trial date had yet to be set.

       {¶15} In response, CRW argues that the trial court properly denied the motion because:

(1) Mr. Copen had actual knowledge of the surveillance video on the day it was taken; (2) Mr.

Copen had been in possession of the surveillance video for more than a year and a half before

moving for leave to amend his complaint because CRW produced the video during discovery for

another case; (3) Mr. Copen’s motion was made in bad faith and for the purpose to delay, harass,

and prejudice CRW; and (4) Mr. Copen could not establish a prima facie case for civil

conspiracy. Regarding Mr. Copen’s assertion that his motion was unopposed, CRW notes that

the trial court denied the motion before CRW had an opportunity to respond, but that it did

oppose Mr. Copen’s motion for reconsideration.

       {¶16} This Court reviews a trial court’s denial of a motion for leave to amend a pleading

for an abuse of discretion. Brown v. FirstEnergy Corp., 159 Ohio App.3d 696, 2005-Ohio-712,

¶ 5 (9th Dist.). An abuse of discretion requires more than simply an error in judgment; it implies

unreasonable, arbitrary, or unconscionable conduct by the court. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983).

       {¶17} The relevant portion of Civ.R. 15(A) permits a party to amend its pleading with

leave of court and provides that “[t]he court shall freely give leave when justice so requires.”

Civ.R. 15(A). “Because Civ.R. 15(A) expresses a preference for liberality with respect to

amendments, ‘a motion for leave to amend should be granted absent a finding of bad faith, undue
                                                 8


delay or undue prejudice to the opposing party.’” Jacobson-Kirsch v. Kaforey, 9th Dist. Summit

No. 26708, 2013-Ohio-5114, ¶ 12, quoting Hoover v. Sumlin, 12 Ohio St.3d 1, 6 (1984).

       {¶18} As CRW points out, Mr. Copen moved to amend his complaint on June 2, 2015,

almost two months after the depositions of Mr. Wood and Mr. Brown, approximately four years

after he had knowledge of the video, and more than a year and a half after he received a copy of

the video. Mr. Copen does not dispute that he had knowledge of the video on the day it was

taken, but argues that he “had no idea who was behind the recording.” Further, Mr. Copen

acknowledges that he received a copy of the surveillance video in November 2013, but asserts

that it was produced during the discovery for another case, not in this case, and that the facts

surrounding the surveillance were not revealed until depositions were taken in this case. Under

these facts, we cannot say that the trial court abused its discretion when it denied Mr. Copen’s

motion for leave to file an amended complaint. Accordingly, his second assignment of error is

overruled.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED WHEN IT DID NOT STRIKE CHRISTOPHER
       WOOD’S AFFIDAVIT.

       {¶19} In his third assignment of error, Mr. Copen argues that the trial court erred by

failing to strike Mr. Wood’s affidavit from the record, which CRW attached as an exhibit to its

brief in opposition to Mr. Copen’s motion for reconsideration of the trial court’s denial of his

motion for leave to file an amended complaint. In his affidavit, Mr. Wood averred that the

surveillance video was taken in July 2011, which is after Mr. Copen’s employment with CRW

had ended. At his deposition, however, Mr. Wood testified that he did not remember when the

surveillance video was taken. Given the conflict in his testimony, Mr. Copen argues that the trial

court should have stricken the affidavit from the record.
                                                   9


       {¶20} In response, CRW argues that Mr. Copen cannot raise this issue on appeal

because he did not move the trial court to strike Mr. Wood’s affidavit. In his reply brief, Mr.

Copen asserts that he did raise this issue because he attached Mr. Wood’s affidavit to his brief in

opposition to CRW’s motion for summary judgment, and argued therein that the affidavit should

be stricken from the record. Our review of Mr. Copen’s brief in opposition to CRW’s motion for

summary judgment, however, reveals otherwise. While Mr. Copen did attach Mr. Wood’s

affidavit as an exhibit and did address the inconsistency in Mr. Wood’s testimony, there is no

indication that he moved the trial court to strike the affidavit from the record. Because the record

reflects that Mr. Copen did not raise this issue below, we decline to address it on appeal. See

State v. Zepeda–Ramires, 9th Dist. Lorain No. 12CA010275, 2013–Ohio–1224, ¶ 11 (stating that

a litigant’s failure to raise an issue below constitutes a forfeiture of that issue on appeal). Mr.

Copen’s third assignment of error is overruled.

                                                  III.

       {¶21} Mr. Copen’s second and third assignments of error are overruled. Regarding Mr.

Copen’s first assignment of error, the judgment of the Wayne County Court of Common Pleas is

reversed and remanded for proceedings consistent with this opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     DONNA J. CARR
                                                     FOR THE COURT



WHITMORE, J.
CONCURS.

HENSAL, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

NATALIE F. GRUBB and MARK E. OWENS, Attorneys at Law, for Appellant.

SUSAN E. BAKER, Attorney at Law, for Appellee.
