[Cite as Lawrence v. Youngstown, 2012-Ohio-6237.]


                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                      SEVENTH DISTRICT


KEITH LAWRENCE,                                 )
                                                )      CASE NO.     09 MA 189
        PLAINTIFF-APPELLANT,                    )
                                                )
        - VS -                                  )      OPINION
                                                )
CITY OF YOUNGSTOWN,                             )
                                                )
        DEFENDANT-APPELLEE.                     )



CHARACTER OF PROCEEDINGS:                           Civil Appeal from Common Pleas Court,
                                                    Case No. 07CV2447.


JUDGMENT:                                           Affirmed.


APPEARANCES:
For Plaintiff-Appellant:                            Attorney Martin Hume
                                                    6 Federal Plaza Central, Suite 905
                                                    Youngstown, Ohio 44504


For Defendant-Appellee:                             Attorney Neil Schor
                                                    26 Market Street, Suite 1200
                                                    P.O. Box 6077
                                                    Youngstown, Ohio 44501-6077


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                    Dated: December 20, 2012
VUKOVICH, J.
      ¶{1}   The Ohio Supreme Court reversed our decision in Lawrence v.
Youngstown, 7th Dist. No. 09MA189, 2011-Ohio-998 and has remanded the matter to
us for consideration of the issues we previously determined to be moot. Lawrence v.
Youngstown, 133 Ohio St.3d 174, 2012-Ohio-4247, 977 N.E.2d 582.
                                Statement of the Case
      ¶{2}   In 2009, Plaintiff-appellant Keith Lawrence appealed the decision of the
Mahoning County Common Pleas Court granting summary judgment to defendant-
appellee City of Youngstown on Lawrence’s complaint for workers’ compensation
retaliation and racial discrimination. However, we solely addressed the second and
sixth assignments of error and based on our resolution of those assignments deemed
all other assignments of error moot.
      ¶{3}   Specifically, as to the second assignment of error, which solely
addressed Lawrence’s R.C. 4123.90 workers’ compensation retaliation claim against
Youngstown, we found that the trial court lacked jurisdiction over the workers’
compensation retaliation claim and thus, summary judgment was warranted.              In
coming to this determination, we explained that R.C. 4123.90 requires written notice of
a workers compensation retaliation claim within 90 days immediately following
discharge, i.e. an intent to sue letter. Lawrence, 2011-Ohio-998, ¶ 23-24. We found
that the word “discharge” meant the actual date of discharge not, as Lawrence
suggested, the date the employee receives notice of the discharge. Id. at ¶ 22-33.
Consequently, since Youngstown did not receive the notice letter within the 90 days,
we held that the jurisdictional prerequisites were not met. Id. at ¶ 33. In reaching our
decision, we acknowledged that there was a conflict among the districts as to whether
“discharge” meant the actual date of discharge or whether it meant the date the
employee received notice of the discharge. Id. at ¶ 26.
      ¶{4}   As to the sixth assignment of error, which addressed Lawrence’s racial
discrimination claim against Youngstown, we also found that this argument lacked
merit. We concluded that the race discrimination claim could not survive summary
judgment because he could not provide evidence that he was treated differently than a
non-protected similarly situated employee.     Id. at ¶ 39-58.    Thus, he could not
establish a prima facie case of race discrimination as is required by the McDonnell
Douglas test. Id.
       ¶{5}    Based upon our acknowledgment of the conflict of among the districts as
to whether “discharge” means the actual date of discharge or if it means the date that
the employee receives notice of discharge, Lawrence asked us to certify a conflict to
the Ohio Supreme Court, which we did. 04/08/11 J.E. The Ohio Supreme Court
accepted our certification and only addressed the resolution of the second assignment
of error.
       ¶{6}    Upon review, the Ohio Supreme Court held that:

               [I]n general, “discharge” in R.C. 4123.90 means the date that the
       employer issued the notice of employment termination, not the
       employee’s receipt of that notice or the date the employee discovered
       that he or she might have a claim for relief under the statute.

Lawrence, 2012-Ohio-4247, ¶3.
       ¶{7}    Thus, the Ohio Supreme Court essentially held that our interpretation of
the statute was correct, however, based upon the facts of the case the Court decided
to judicially create a limited exception to the language of the statute. Id. ¶ 27. It
explained:

               The prerequisites for this exception are that an employee does not
       become aware of the fact of his discharge within a reasonable time after
       the discharge occurs and could not have learned of the discharge within
       a reasonable time in the exercise of due diligence.           When those
       prerequisites are met, the 90-time period for the employer to receive
       written notice of the employee’s claim that the discharge violated R.C.
       4123.90 commences on the earlier of the date that the employee
       becomes aware of the discharge or the date the employee should have
       come aware of the discharge.

Id. at ¶ 27.
       ¶{8}    The Court then went on to explain that that limited exception, given the
facts of the case at hand, may apply.        Id. at ¶ 28-29.    Thus, it concluded that
Youngstown may have timely received Lawrence’s notice of the alleged retaliatory
discharge. Id. at ¶ 29. Consequently, the matter was remanded back to us to address
the assignments of error we deemed moot. Id. at ¶ 30.
                                  Statement of Facts
      ¶{9}      In our prior decision we provided the following factual and case
statement:
                Lawrence is an African–American male who was hired by the
      Youngstown Street Department (YSD) as a seasonal worker in 1999 and
      2000. His position was a laborer and, as such, he was required to
      operate power equipment and automobiles and have a valid Commercial
      Driver's License. In 2000, his employment changed from a seasonal
      worker to a full-time position. However, Lawrence was laid off in
      September 2002 when Youngstown conducted massive layoffs. From
      1999 until his layoff, Lawrence made three separate claims for workers'
      compensation, he missed significant hours of work while being off on
      Injured on Duty status, utilized extensive sick hours during that time, and
      on one occasion was written up for violating Youngstown's reporting off
      policy.
                Lawrence was rehired by Youngstown in 2006 upon the request of
      former Councilman Gillam. Lawrence was required to execute an
      employment agreement that extended the typical ninety day probationary
      period to one year, provided that Lawrence's termination during that
      period could be with or without cause, and stated that Lawrence was to
      obtain a valid CDL within the first ninety days of his probationary period
      (Exhibit F to Youngstown's Motion for Summary Judgment—Employment
      Agreement). The Agreement also contained a waiver provision whereby
      Lawrence waived the right to sue Youngstown for terminating him during
      the probationary period.
                In September 2006, Youngstown hired a new Commissioner of
      Building and Grounds, Sean McKinney. McKinney was in charge of
      overseeing operations of YSD. Sometime in the winter, he reviewed all
      employees' driving records and discovered that Lawrence's Ohio driver's
      license was suspended on December 10, 2006 for refusing to take a
      breath test for suspected driving under the influence. McKinney also
discovered that Lawrence had failed to advise YSD of his license
suspension. Lawrence was still under his one year probationary period
when this occurred.
       Due to the license suspension, on January 7, 2007, Lawrence
was suspended without pay. Two days later, McKinney advised Mayor
Jay Williams and the City Law Director of his findings and recommended
that Lawrence be terminated from his position with Youngstown. A letter
dated that day was signed by Mayor Williams indicating that Lawrence's
employment with Youngstown was terminated effective January 9, 2007.
       As a result of the above, on April 17, 2007, counsel for Lawrence
sent a letter to Youngstown indicating that Lawrence intended to sue the
city because his termination was racially discriminatory and constituted
unlawful retaliation for filing workers' compensation claims. The
complaint alleging workers' compensation retaliation (Count I) and racial
discrimination (Count II) was filed July 6, 2007.
       Following discovery, Youngstown filed a motion for summary
judgment arguing that the trial court lacked subject matter jurisdiction
over the workers' compensation retaliation claim because Lawrence
failed to comply with R.C. 4123.90 and that alternatively, Lawrence
cannot create a genuine issue of material fact concerning the retaliation
claim. As to the racial discrimination claim, Youngstown contended that
Lawrence cannot create a genuine issue of material fact concerning the
claim. As to both claims, it also argued that the employment agreement
was a “Last Chance Agreement” and that the waiver provision in the
Agreement relinquished Lawrence's right to sue over his termination.
Also, Youngstown argued that Lawrence's claims are barred due to the
doctrine of judicial estoppel because on Lawrence's bankruptcy petition
and the Amended Schedule he did not note these claims.
       Lawrence filed a motion in opposition to the motion for summary
judgment. He disputed all of Youngstown's arguments. The matter was
heard by the magistrate.
       On the workers' compensation retaliation claim, the magistrate
decided that Lawrence had not complied with R.C. 4123.90 and thus, the
      court did not have subject matter jurisdiction. Additionally, it found that
      Lawrence could not establish a genuine issue of material fact on that
      claim. On the racial discrimination claim, the magistrate decided
      Lawrence could not establish a genuine issue of material fact on that
      claim. As to the arguments about the validity of the Agreement, waiver
      and judicial estoppel, the magistrate found that the Agreement was a
      “Last Chance” agreement and that the waiver provision in the Agreement
      barred the suit. It also found that judicial estoppel barred the suit.
      Consequently, it found that summary judgment was appropriate on
      Counts I and II of the complaint.
             Lawrence filed timely objections to all the above findings made by
      the magistrate. Youngstown filed a response to those objections. The
      trial court overruled the objections and affirmed the magistrate's decision.
      However, it did not address all the reasons why the magistrate found that
      summary judgment was warranted for Youngstown, rather it stated:
             “The Court finds that there are no genuine issues of material fact
      as to these claims under Counts I and II brought against Youngstown by
      Keith Lawrence and that reasonable minds can come to but one
      conclusion: that even construing the evidence in favor of Lawrence,
      Youngstown is entitled to judgment as a matter of law on these two
      remaining claims.” 10/21/09 J.E.
Lawrence, 2011-Ohio-998, at ¶ 8-17.
                                          Analysis
      ¶{10} Having laid out the facts and procedural history, we now turn our
attention to complying with the Ohio Supreme Court’s instruction to address the issues
we determined to be moot. As to that determination, it is noted that the Ohio Supreme
Court reversal only discussed the one issue that pertained to the workers’
compensation retaliation claim. Thus, it would appear that the Court’s instruction for
us to address the issues we previously determined to be moot only applies to the
issues that were mooted because of our prior decision regarding assignment of error
number two. Or in other words, we must address all issues regarding the workers’
compensation retaliation claim. Given that our decision that summary judgment was
appropriate on the racial discrimination claim was either not appealed or not accepted
for appeal, we must conclude that that decision stands. Therefore, any issues that
were determined to be moot due to the resolution of the sixth assignment of error
remain moot and will not be addressed.
                              STANDARD OF REVIEW
      ¶{11} An appellate court reviews a trial court's summary judgment decision de
novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v.
Harrison, 115 Ohio St.3d 241, 874 N.E.2d 1155, 2007-Ohio-4948, ¶ 5. A motion for
summary judgment is properly granted if the court, upon viewing the evidence in a light
most favorable to the party against whom the motion is made, determines that: (1)
there are no genuine issues as to any material facts; (2) the movant is entitled to
judgment as a matter of law; and (3) the evidence is such that reasonable minds can
come to but one conclusion and that conclusion is adverse to the opposing party.
Civ.R. 56(C); Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10.
When a court considers a motion for summary judgment the facts must be taken in the
light most favorable to the non-moving party. Temple v. Wean United, Inc., 50 Ohio
St.2d 317, 327, 364 N.E.2d 267 (1977). With that standard in mind, we now turn to the
arguments.
      ¶{12} The third, fourth and fifth assignments of error deal solely with the
workers’ compensation retaliation claim and thus, will be addressed prior to the first
assignment of error.
                              Third Assignment of Error
      ¶{13} “The trial court erred in granting summary judgment in favor of
Defendant-appellee based [sic] where there was direct evidence of unlawful retaliation
against Lawrence for filing his Worker’s [sic] Compensation claims.”
      ¶{14} An employer may discharge an employee who filed a workers'
compensation claim as long as the discharge is for just and lawful reasons.
Goersmeyer v. General Parts, Inc., 9th Dist. No. 06CA00045-M, 2006-Ohio-6674, ¶ 8.
The statute protects only against adverse employment actions in direct response to
the filing or pursuit of a workers' compensation claim. White v. Mt. Carmel Med. Ctr.,
150 Ohio App.3d 316, 2002-Ohio-6446, 780 N.E.2d 1054, ¶ 36 (10th Dist.). A R.C.
4123.90 claim can be proven through direct or indirect evidence. Ferguson v. SanMar
Corp., 12th Dist. No. CA2008-11-283, 2009-Ohio-4132, ¶ 13, fn. 2; Wysong v. Jo-Ann
Stores, Inc., 2d Dist. No. 21412, 2006-Ohio-4644, ¶ 10. In this assignment of error, we
are asked to determine whether Lawrence provided direct evidence of unlawful
retaliation for filing a workers’ compensation claim.
       ¶{15} In the context of providing direct evidence of sex discrimination, the
Eighth Appellate District has stated that direct evidence is “that evidence which, if
believed, requires the conclusion that unlawful discrimination was at least a motivating
factor in the employer’s actions.” Birch v. Cuyahoga Cty. Probate Court, 173 Ohio
App.3d 696, 2007-Ohio-6189, 880 N.E.2d 123, ¶ 23 (8th. Dist.), citing Jacklyn v.
Schering-Plough Healthcare Prods., 176 F.3d 921, 926 (6th Cir.1999).                Explicit
statements of discriminatory intent constitute direct evidence of discrimination;
although, the plaintiff must prove a causal link or nexus between the discriminatory
statement or conduct and the prohibited act of discrimination. Birch at ¶ 23, citing
Byrnes v. LCI Communication Holdings Co., 77 Ohio St.3d 125, 130, 672 N.E.2d 145
(1996). In determining whether comments or conduct are harmless or if they provide
improper motive, courts consider: (1) whether they were done by a decision maker; (2)
whether they were related to the decision-making process; (3) whether they were more
than vague, isolated, or ambiguous; and (4) whether they were proximate in time to
the act of alleged discrimination. Birch at ¶ 23.
       ¶{16} Lawrence’s purported direct evidence of retaliation is derived from the
affidavit of Mayor Williams, in which the Mayor avows:
              4. Upon review of this matter, I found Keith Lawrence had been
       employed with the City in the past, and had a record of employment
       injuries, and missed work; as a result of this history, I was reluctant to re-
       appoint Mr. Lawrence to a City position;
              5. I agreed to Mr. Lawrence’s appointment upon the condition
       that Mr. Lawrence enter into an Employment Agreement with the City to
       extend his probationary period from 90 days to one year, to authorize the
       City to terminate him with or without cause within that period, and to
       waive all forums for appealing termination.
Mayor Williams Affidavit.
       ¶{17} Lawrence contends that these statements show that the Agreement
containing the extended probationary period was implemented because of his workers’
compensation claims. According to him, had he not been on the extended probation,
his suspended license would not have resulted in his discharge. He asserts that other
employees who were not on probation were not discharged when their license was
suspended. Conversely, Youngstown disputes that the Mayor’s sworn statements are
direct evidence because it does not demonstrate that Lawrence was discharged
because of the workers’ compensation claims Lawrence made.
       ¶{18} Youngstown is correct that the above comments made by the Mayor do
not show that his discharge in 2007 was because of his workers’ compensation claims
filed between 1999 and 2002. While the comments are made by the decision maker,
i.e. the Mayor, they relate to the decision to rehire Lawrence, not the decision to
terminate him. These comments clearly show that despite the workers’ compensation
claims and the missed work, Youngstown still rehired Lawrence. He was laid off from
2002 until his rehire in 2006. There is no claim that laying him off was based on the
workers’ compensation claims.          Likewise, considering the Mayor’s statement,
Youngstown still rehired him; it did not choose to not rehire him because of the
workers’ compensation claims. Furthermore, from the record, it is undisputed that
from his rehire in 2006 until his discharge in 2007, Lawrence did not file a workers’
compensation claim.      Thus, there is no proximity in time between the workers’
compensation claims and the discharge. Consequently, the Mayor’s statement is not
direct evidence because it does not speak to the discharge and because the claims
were filed at least five years prior to the discharge.
       ¶{19} That said, we acknowledge that the Mayor’s statements could tend to
show that the extended probationary period was implemented because of missed work
and work related injuries.     However, the Mayor’s statement as to his conduct in
rehiring Lawrence, i.e. implementing the probationary period, is not clear enough to
show that it was based on the workers’ compensation claims that were filed over five
to eight years prior to the rehire.        Consequently, for the above reasons, this
assignment lacks merit; Lawrence did not present direct evidence of retaliation.
                               Fourth Assignment of Error
       ¶{20} “The trial court erred in granting summary judgment in favor of
Defendant-appellee based upon a finding that Lawrence failed to establish a prima
facie case of unlawful retaliation against him for filing Worker’s [sic] Compensation
claims.”
       ¶{21} As aforementioned, a workers’ compensation retaliation claim under R.C.
4123.90 can be proven through direct or indirect evidence. Ferguson, 12th Dist. No.
CA2008-11-283, 2009-Ohio-4132, ¶ 13, fn. 2; Wysong, 2d Dist. No. 21412, 2006-Ohio-
4644, ¶ 10. Under the third assignment of error, we found that Lawrence failed to
provide direct evidence of retaliation.    Under this assignment of error, Lawrence
argues that he presented indirect evidence of retaliation.
      ¶{22} In the absence of direct evidence of retaliatory intent, Ohio courts resolve
retaliation claims using the evidentiary framework established by the United States
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817
(1973). Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d
174, ¶ 13-14. Our court has explained:

             To prove a violation of R.C. 4123.90, the employee must set forth
      a prima facie case of retaliatory discharge demonstrating that (1) he was
      injured on the job, (2) he filed a claim for workers' compensation, and (3)
      he was discharged by his employer in contravention of R.C. 4123.90.
      Wilson v. Riverside Hosp. (1985), 18 Ohio St.3d 8, 1, at the syllabus.
      Once the employee demonstrates a prima facie case, the burden shifts
      to the employer to set forth a legitimate, nonretaliatory reason for the
      discharge. Kilbarger v. Anchor Hocking Glass Co. (1997), 120 Ohio
      App.3d 332, 338. If the employer can set forth a nonretaliatory reason
      for the discharge, the burden then shifts back to the employee to show
      that the employer's reason is a pretext and that the real reason for the
      discharge was the employee's protected activity under the Ohio Workers'
      Compensation Act. Id.

Kaufman v. Youngstown Tube Co., 7th Dist. No. 09MA8, 2010-Ohio-1095, ¶ 35.
      ¶{23} When establishing a prima facie case of retaliatory discharge, the party
claiming the retaliation must demonstrate a causal connection between the filing of the
workers’ compensation claim and being terminated. Id. at, ¶ 41, citing Gerding v. Girl
Scouts of Maumee Valley Council, Inc., 6th Dist. No. L-07-1234, 2008-Ohio-4030, ¶
31. The causal connection requires evidence of a retaliatory state of mind of the
employer. Buehler v. AmPam Commercial Midwest, 1st Dist. No. C-060475, 2007-
Ohio-4708, ¶ 24. The plaintiff is not required to produce a “smoking gun” to withstand
summary judgment.        Kent v. Chester Labs, Inc., 144 Ohio App.3d 587, 592, 761
N.E.2d 60 (1st. Dist.2001).
         ¶{24} In Kaufman, we referenced factors that can demonstrate the existence of
causal connection.      Kaufman at ¶ 42.       They are: (1) punitive action like bad
performance reports appearing immediately after a claim is filed, (2) the time period
between the filing of the claim and discharge, (3) a change in salary level, (4) recent
hostile attitudes, and (5) whether legitimate reasons existed for the discharge. Id.
         ¶{25} Considering the record in this case, there is no dispute that Lawrence
was injured while working for the YSD from 1999-2002 and that he filed workers’
compensation claims.       The question here is whether there is a genuine issue of
material fact as to whether there is a causal connection between those workers’
compensation claims and his rehire in 2006 with the extended probationary period and
if those claims resulted in his termination.      In looking at the factors set forth in
Kaufman for showing a causal connection, the City is correct that none are present in
this case. Immediately following the three separate claims for workers’ compensation
there were no bad performance reports, punitive action, change in salary level or
expressed hostile attitude toward him.       Lawrence contends his rehiring upon the
condition of the extended probationary period is part of the punitive action taken
against him. However, that action did not occur immediately following the claims.
Rather, it occurred somewhere between four and eight years after the claims were
filed.
         ¶{26} The Tenth Appellate District has recently cited to numerous cases that
have found that shorter periods did not show a causal connection:

               Courts have found time periods much shorter than the one
         involved in the instant case insufficient evidence of a causal connection.
         See Balletti v. Sun-Sentinel Co. (S.D.Fla.1995), 909 F.Supp. 1539, 1549
         (six-month period between voicing concerns of sexual harassment and
         discharge ‘not temporally close enough to support an inference of causal
         connection’); Baker, supra, at 568 (retaliation claim based upon race
         discrimination claim and adverse employment actions occurring more
         than one year later insufficient to show causal connection between
         protected activity and adverse employment action); Reeves v. Digital
      Equip. Corp. (N.D.Ohio 1989), 710 F.Supp. 675, 677 (no causal
      connection where three months elapsed between protected activity and
      adverse action); Cooper v. City of North Olmsted (C.A.6, 1986), 795 F.2d
      1265, 1272-1273 (mere fact plaintiff was discharged four months after
      filing discrimination charge insufficient to support an inference of
      retaliation); Brown v. ASD Computing Ctr. (W.D.Ohio 1981), 519 F.Supp.
      1096, 1117 (plaintiff's discharge approximately three months after
      consulting with E.E.O. Office not ‘so connected in time as to create an
      inference of retaliation, [and, thus,] the evidence fails to establish a prima
      facie case of retaliation’).

Motley v. Ohio Civ. Rights Comm., 10th Dist. No. 07AP-923, 2008-Ohio-2306, ¶ 19.
      ¶{27} Furthermore, the probationary period was a condition of his rehire. This
is not a situation where the employer implemented a probationary period on the
employee immediately following the workers’ compensation claim/claims.             Rather,
here, it is undisputed that Lawrence was legitimately laid off in 2002 as part of massive
layoffs by the City. Moreover, the City did not have to rehire Lawrence. When he was
rehired the probationary period was implemented and appellant did not cite any
statutory provision which prohibited the City from implementing a probationary period.
Simply, he would not have been rehired without the probationary period. Thus, based
on the first four factors, Lawrence is unable to establish a prima facie case of workers’
compensation retaliation.
      ¶{28} The last Kaufman factor is whether there was a legitimate reason for the
discharge. Once a plaintiff establishes a prima facie case of discrimination under
McDonnell Douglas, then a presumption is created that the employer unlawfully
discriminated against the employee, and the burden shifts to the employer to produce
evidence that its actions regarding the plaintiff were based on legitimate
nondiscriminatory reasons. Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 254, 101 S.Ct. 1089 (1981). Thus, the burden is on the defendant, i.e. employer,
to show the last Kaufman factor.
      ¶{29} Here, our above analysis concludes that Lawrence has not established a
prima facie case of discrimination under the McDonnell Douglas test.            Thus, the
burden has not shifted to the City to show that there is a legitimate nondiscriminatory
reason for the discharge. Therefore, we are not required to determine if the City
provided such a reason. However, in the interest of thoroughness, we will address the
issue.
         ¶{30} Here, the City claimed that the legitimate nondiscriminatory reason for
the discharge was due to the fact that Lawrence’s license was suspended and that he
did not inform the City of that suspension. The record confirms that reason. It is
undisputed that Lawrence’s license was suspended in December 2006, was not
reinstated until January 2007 and Lawrence did not inform his superiors either formally
or informally of that suspension. Likewise, the City handbook and the Agreement
signed by Lawrence require a YSD laborer (Lawrence’s position) to have a valid CDL.
Exhibits B and F to Motion for Summary Judgment. Having his license suspended
means that he did not have a valid CDL.              Furthermore, while all this occurred
Lawrence was on probation. As the magistrate noted in its decision, a probationary
governmental employee does not possess a property interest in his employment until
the probationary period ended.          Ste. Marie v. Dayton, 109 F.Supp.2d 846, 854
(S.D.Ohio 2000). Consequently, there was a valid reason for discharge.
         ¶{31} Therefore, given the factors to be considered, there is no causal
connection     between    the   discharge      and   the   extended   probationary   period.
Furthermore, even if there was, there is a legitimate reason for the discharge. Thus,
this assignment of error lacks merit.


                                 Fifth Assignment of Error
         ¶{32} “The trial court erred in granting summary judgment in favor of
Defendant-appellee where there was substantial evidence in the record that the
reason for discharge proferred [sic] by the City was pretextual.”
         ¶{33} Although this assignment of error is rendered moot by our determination
that Lawrence has failed to provide either direct or indirect evidence of retaliation, we
will still address this assignment of error.
         ¶{34} Assuming Lawrence has been able to show either direct or indirect
evidence of retaliation, as discussed in the previous assignment of error, the City
offered a legitimate reason for the discharge.              Youngstown’s legitimate non-
discriminatory reason was because Lawrence did not inform YSD that his license was
suspended. Once the employer sets forth a nonretaliatory reason for the discharge,
the burden then shifts back to the employee to show that “the employer's reason is a
pretext and that the real reason for the discharge was the employee's protected
activity under the Ohio Workers' Compensation Act.” Kaufman, 7th Dist. No. 09MA8,
2010-Ohio-1095, at ¶ 35.
          ¶{35} It has been explained that an employee can meet that burden by
showing that the employer’s reason: 1) has no basis in fact, 2) did not actually
motivate the discharge, or 3) was insufficient to motivate her discharge. Davenport v.
Big Brothers & Big Sisters of the Greater Miami Valley, Inc., 2d Dist. No. 23659, 2010-
Ohio-2503, ¶ 50; Egli v. Congress Lake Club, 5th Dist. No. 2009CA00216, 2010-Ohio-
2444, ¶ 39; King v. Jewish Home, 178 Ohio App.3d 387, 2008-Ohio-4724, ¶ 9 (1st
Dist.).
          ¶{36} Lawrence’s position that the City’s reason was pretextual concentrates
on the third reason – that the suspended license and failure to inform his superiors of
the suspension were insufficient to motivate his discharge.           He states that
Youngstown’s own evidence shows that there were other employees from the YSD
whose licenses were suspended and who were not discharged because of that
suspension. Youngstown contends that those situations are different from Lawrence’s
because he was on probation when his license was suspended while the others were
not. Also, according to Youngstown, the other employees either formally or informally
informed YSD of their suspensions, while Lawrence did not.
          ¶{37} McKinney’s affidavit, attached to Youngstown’s motion for summary
judgment, provided that Lawrence was not the only employee of the YSD with a
suspended license. For instance, John Cox’s license was suspended. McKinney Aff.
¶5. Cox, however, was not discharged; rather he was disciplined under the City’s
Labor Agreement with the Union because he was past his three month probationary
period. McKinney Aff. ¶7-8. Furthermore, Cox had informally told his supervisor of the
suspension, while Lawrence had not provided formal or informal notice. McKinney Aff.
¶9, 14.
          ¶{38} Affidavits attached to Lawrence’s motion in opposition to summary
judgment established that in addition to Cox, there were other employees whose
licenses were suspended and who were not discharged. Large Aff. ¶4; Moody Aff. ¶4.
They were Terry Carter, Tony Shade, and James Cerimele. Large Aff. ¶4. Those
affidavits also state that the other employees were allowed to perform labor duties
while their licenses were suspended and, as such, Lawrence could also have
performed labor duties during the license suspension. Large Aff. ¶3-4; Moody Aff. ¶4.
None of the affidavits or any other evidence in the record establishes whether Carter,
Shade or Cerimele informed YSD either formally or informally of their suspensions.
       ¶{39} Lawrence’s deposition indicates that neither Carter nor Shade were on
probation when their licenses were suspended and as to Cerimele he indicates he
does not know whether he was on probation. Lawrence Depo. 96, 98-99. Despite his
lack of evidence, he contends that the magistrate and trial court incorrectly relied on
the fact that those employees were not on probation when their licenses were
suspended when determining that the reason for the discharge was not pretext.
Lawrence claims we should not rely on such circular reasoning because he was on the
extended probationary period because Youngstown was retaliating against him for
filing previous workers’ compensation claims.
       ¶{40} Regardless of whether the probationary period is considered, the record
indicates that the reason for the discharge was not pretextual. The contract Lawrence
signed upon his rehire permits his discharge for any reason and requires him to have a
valid license.   Furthermore, the contract clearly indicates that the Union will not
challenge any discipline during the probationary period. When that is considered, in
conjunction with the affidavit from McKinney indicating that a non-probationary
employee would be subject to discipline from the Union and would not be subject to
being discharged by the employer, it indicates that the discharge was motivated by the
suspension and the probationary period.         It was not motivated by the workers’
compensation claims filed four to eight years earlier.
       ¶{41} Furthermore, the fact that Lawrence did not inform his supervisor of his
suspension is sufficient justification for discharge. Failure to inform the City of his
license suspension raises questions as to Lawrence’s honesty. While it may be true
that a laborer of YSD could perform work without driving, driving is a possibility in that
position. Without knowledge of the suspension, the City could not ensure that an
employee with a license suspension was not operating a vehicle. If the employee was
driving with a suspended license during work, this could cause potential problems for
the City. Thus, the failure to inform his supervisors of the suspended license is a
legitimate reason for discharge.
       ¶{42} Moreover, Lawrence has been unable to show that any other employee
who had his/her license suspended and did not tell the employer of that suspension
was permitted to keep his/her job.         As stated above, Cox informally told his
supervisors of the suspension. Thus, Cox’s situation does not support Lawrence’s
contention that the City’s reason for discharge was insufficient to motivate it. The
record does not contain evidence of any other employees’ disclosure or nondisclosure
of their license suspension to the City.
       ¶{43} Consequently, even if this assignment of error was not rendered moot by
our resolution of the third and fourth assignments of error, the retaliation claim would
still fail because under this assignment of error Lawrence has failed to show that there
is a genuine issue of material fact that the reason for discharge was pretextual. This
assignment of error lacks merit.
                        Sixth and Seventh Assignments of Error
       ¶{44} “The trial court erred in granting summary judgment in favor of
Defendant-appellee based upon a finding that Lawrence did not establish a prima facie
case of racial discrimination.
       ¶{45} “The trial court erred in granting summary judgment in favor of
Defendant-appellee based upon a finding that the proferred [sic] reason for
Lawrence’s discharge was not pretextual.”
       ¶{46} As aforementioned, we previously held that the trial court’s grant of
summary judgment on the racial discrimination claim could not survive summary
judgment because he could not show a prima facie case of race discrimination.
Lawrence, 7th Dist. No. 09MA189, 2011-Ohio-998, ¶ 39-58. The Ohio Supreme Court
did not reverse our decision on that issue.      Thus, our resolution of the sixth and
seventh assignments of error remains unchanged. Id. at ¶ 58, 60.
                                 First Assignment of Error
       ¶{47} “The trial court erred in granting summary judgment in favor of
Defendant-appellee based upon a finding that Lawrence’s claims of unlawful retaliation
for filing Worker’s [sic] Compensation claims and Racial Discrimination were waived.”
       ¶{48} In this assignment of error, Lawrence argues that the trial court
incorrectly determined the Employment Agreement he signed upon his rehire to be a
“Last Chance Agreement” (LCA). A LCA waives the right to seek legal recourse for
termination.
       ¶{49} This assignment of error is rendered moot by our resolution of the third,
fourth and fifth assignments of error. Even if we were to conclude that the agreement
that he signed upon his rehire did not waive the right to seek legal recourse for his
termination, the analysis provided above concludes that Lawrence failed to establish a
genuine issue of material fact as to his workers’ compensation retaliation claim, i.e. the
trial court’s grant of summary on the workers’ compensation retaliation claim was
correct. Thus, any determination by this court as to whether the agreement signed
upon his rehire waived his right to sue is inconsequential.
                                  Eighth Assignment of Error
       ¶{50} “The trial court erred in granting summary judgment in favor of
Defendant-appellee based upon a finding that Lawrence’s claims were barred by the
doctrine of judicial estoppel.”
       ¶{51} In this assignment of error, Lawrence argues that the magistrate/trial
court was incorrect in determining that judicial estoppel bars the claims because he did
not include the claims in his bankruptcy petition or amended schedules to the
bankruptcy court.
       ¶{52} Similar to the first assignment of error, this assignment of error is also
rendered moot by our determination that the trial court’s grant of summary judgment
on Lawrence’s workers’ compensation retaliation claim was correct.                   Any
determination by this court as to whether judicial estoppel bars the workers’
compensation retaliation claim is inconsequential because even if it did not bar the
claim, our resolution of the third, fourth and fifth assignments of error conclude that
Lawrence’s workers’ compensation claim cannot survive summary judgment because
Lawrence provided no genuine issue of material fact for a case of workers’
compensation retaliation and/or that the reason for his discharge was pretextual.
                                       ¶{53} CONCLUSION
       ¶{54} For the foregoing reasons, the judgment of the trial court granting
summary judgment to Youngstown on the workers’ compensation retaliation claim is
hereby affirmed. Lawrence did not present a genuine issue of material fact that there
was direct or indirect evidence of workers’ compensation retaliation.        There is no
evidence that a causal connection existed between the alleged punitive action, i.e.
requiring him to be a probationary employee for a year upon his rehire, and the
workers’ compensation claims. However, even if there was, Youngstown provided a
legitimate nondiscriminatory reason for the discharge and thus, shifted the burden to
Lawrence to show that there was a genuine issue of material fact as to whether that
reason was pretextual. Lawrence did not demonstrate that there is a genuine issue of
material fact as to whether the reason was pretextual.

Waite, P.J., concurs.
DeGenaro, J., concurs.
