[Cite as Drummond v. Paccar, Inc., 2011-Ohio-6249.]




                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        ROSS COUNTY


DUANE ANTHONY DRUMMOND
                                                      :
        Plaintiff-Appellant,                              Case No. 11CA3226
                                                      :
        vs.
                                                      :
PACCAR, INC., d.b.a.                                      DECISION AND JUDGMENT ENTRY
KENWORTH TRUCK CO.                                    :

        Defendant-Appellee.                           :

_________________________________________________________________

                                           APPEARANCES:

COUNSEL FOR APPELLANT:                  James L. Mann, Mann & Preston, L.L.P., 18 East Second
                                        Street, Chillicothe, Ohio 45601

COUNSEL FOR APPELLEE:         Brian D. Hall, Porter, Wright, Morris & Arthur, L.L.P., 41
                              South High Street, Stes. 2800-3200, Columbus, Ohio
                              43215-6194
_________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 11-30-11

ABELE, J.

        {¶ 1} This is an appeal from a Ross County Common Pleas Court summary judgment in

favor of PACCAR Inc., d.b.a. Kenworth Truck Co. (Kenworth), defendant below and appellee

herein, on the claim brought against it by Duane Anthony Drummond, plaintiff below and

appellant herein. Appellant assigns the following error for review:
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               “THE TRIAL COURT ERRED IN GRANTING APPELLEE’S
               MOTION FOR SUMMARY JUDGMENT.”

       {¶ 2} Appellant began working for Kenworth in 1987. In 2001, he sustained a lower

back injury during the course of his employment and he could not work. Appellant returned to

Kenworth on January 11, 2002, but did so under restrictions, including a restriction that he lift no

more than fifteen pounds. Kenworth heard that appellant may be working at a local rodeo on the

evening of February 8, 2002, and hired a private detective to investigate. At the rodeo, the

detective videotaped appellant lifting children onto the back of animals. Appellant was

thereafter terminated from his employment.

       {¶ 3} Appellant commenced the instant action on August 9, 2002 and alleged that

Kenworth terminated him in retaliation for having filed a workers’ compensation claim.

Appellant asked for damages in excess of $25,000. Kenworth denied liability and asserted a

number of defenses.

       {¶ 4} On October 14, 2003, Kenworth requested summary judgment. Appellant

thereupon filed a memorandum contra, to which Kenworth filed a reply. The trial court entered

judgment on February 7, 2011, and granted Kenworth’s motion. This appeal followed.

       {¶ 5} Appellate courts review summary judgments de novo. Sutton Funding, L.L.C. v.

Herres, 188 Ohio App.3d 686, 936 N.E.2d 574, 2010-Ohio-3645, at ¶59; Broadnax v. Greene

Credit Service (1997), 118 Ohio App.3d 881, 887, 694 N.E.2d 167. In other words, appellate

courts generally afford no deference whatsoever to trial court decisions, Kalan v. Fox, 187 Ohio

App.3d 687, 933 N.E.2d 337, 2010-Ohio-2951, at ¶13; Hicks v. Leffler (1997), 119 Ohio App.3d

424, 427, 695 N.E.2d 777, and instead, conduct our own, independent review to determine if
                                                                                                       3
summary judgment is appropriate. Phillips v. Rayburn (1996), 113 Ohio App.3d 374, 377, 680

N.E.2d 1279; McGee v. Goodyear Atomic Corp. (1995), 103 Ohio App.3d 236, 241, 659 N.E.2d

317.

       {¶ 6} Summary judgment under Civ. R. 56(C) is appropriate when a movant shows that

(1) no genuine issues of material fact exist, (2) he is entitled to judgment as a matter of law, and

(3) after the evidence is construed most strongly in favor of the non-movant, reasonable minds

can come to one conclusion and that conclusion is adverse to the non-moving party. See

Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 927 N.E.2d 1066, 2010-Ohio-1027 at

¶103; Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201.

The moving party bears the initial burden to show that no genuine issues of material fact exist

and that it is entitled to judgment as a matter of law. Vahila v. Hall (1997), 77 Ohio St.3d 421,

429, 674 N.E.2d 1164; Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. If that

burden is satisfied, the onus shifts to the non-moving party to provide rebuttal evidentiary

materials. See Trout v. Parker (1991), 72 Ohio App.3d 720, 723, 595 N.E.2d 1015; Campco

Distributors, Inc. v.. Fries (1987), 42 Ohio App.3d 200, 201, 537 N.E.2d 661. With these

principles in mind, we turn our attention to the case sub judice.

       {¶ 7} Appellant’s claim is based on an alleged R.C. 4123.90 violation. This statute

provides in pertinent part, that “[n]o employer shall discharge . . . 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.” In support of its position, Kenworth filed an

affidavit from Human Resources Manager Karen Duffy, who attested (1) appellant had not even
                                                                                                                      4
filed a workers’ compensation claim for his back condition, and (2) in any event, the decision to

terminate appellant sprang from the fact that he engaged in activities that violated the medical

restrictions imposed upon him when he returned to work.1 This constituted sufficient

evidentiary materials for Kenworth to satisfy its initial burden on summary judgment.

Accordingly, the burden shifted to appellant to provide rebuttal materials to show that genuine

issues of material fact do, in fact, exist that negate summary judgment and require a trial. After

our review of the materials, however, we do not believe that appellant satisfied his burden.

Human Resources Manager Sharon Duffy attested that appellant was dismissed for not following

medical restrictions on how much weight he could lift. Appellant did not offer anything in his

affidavit to refute the explanation that a legitimate reason supported his discharge. Appellant,

however, does not really challenge that explanation, so much as he challenges his view of its

overall fairness. We note that R.C. 4123.90 does not prohibit a termination that an employee

may personally perceive as unfair; rather, the statute prohibits a termination in retaliation for

filing a workers’ compensation claim. Thus, we agree with the trial court's conclusion that

appellant's evidentiary materials do not create a genuine issue of material fact concerning the

stated legitimate reasons that supported his discharge.

         {¶ 8} For all these reasons, we overrule appellant's assignment of error and affirm the

trial court's judgment.

                                                                                   JUDGMENT AFFIRMED.

Kline, J., concurring.


         1
           The affiant further explained that appellant received “non-industrial short term disability benefits” due to
his back condition.
                                                                                                  5
       {¶ 9} I respectfully concur in judgment only. Here, I agree that Drummond’s

retaliatory-discharge claim does not survive summary judgment. But in making that

determination, I would apply the burden-shifting framework utilized in Dover v. Carmeuse

Natural Chemicals, Perry App. No. 10-CA-8, 2010-Ohio-5657, at ¶40-47; Ferguson v. SanMar

Corp., Butler App. No. CA2008-11-283, 2009-Ohio-4132, at ¶13-21; and Slone v. Martin

Marietta Energy Systems, Inc. (Oct. 5, 1998), Washington App. No. 97CA602.




                                      JUDGMENT ENTRY

       It is ordered that the judgment be affirmed and that appellee recover of appellant costs

herein taxed.

       The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the Ross County

Common Pleas Court to carry this judgment into execution.

       A certified copy of this entry shall constitute that mandate

pursuant to Rule 27 of the Rules of Appellate Procedure.

       Harsha, P.J.: Concurs in Judgment & Opinion and the Concurring Opinion
       Kline, J.: Concurs in Judgment Only with Concurring Opinion
                                                                For the Court




                                                            BY:
                                           Peter B. Abele, Judge
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                                   NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
