[Cite as Wright v. Therm-O-Link, 2016-Ohio-7840.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                   PORTAGE COUNTY, OHIO


RICHARD WRIGHT, et al.,                             :      OPINION

                 Plaintiffs-Appellants,             :
                                                           CASE NO. 2015-P-0059
        - vs -                                      :

THERM-O-LINK,                                       :

                 Defendant-Appellee.                :


Civil Appeal from the Portage County Court of Common Pleas, Case No. 2012 CV
01193.

Judgment: Affirmed.


Steven W. Albert, 29425 Chagrin Boulevard, Suite 216, Pepper Pike, Ohio 44122, and
James G. Joseph, 75 Public Square, Suite 650, Cleveland, OH 44113 (For Plaintiffs-
Appellants).

Matthew M. Ries, and Kevin P. Murphy, Harrington, Hoppe & Mitchell, Ltd., 108 Main
Avenue, S.W., Suite 500, Warren, OH 44481 (For Defendant-Appellee).



THOMAS R. WRIGHT, J.


        {¶1}     This appeal is from the final decision in an intentional tort case.

Appellants, Richard and Reille Wright, claim the trial court erred in granting summary

judgment in favor of appellee, Therm-O-Link, Inc., on all pending claims.             For the

following reasons, summary judgment was proper.

        {¶2}     Appellee is an extrusion wire factory, with its principal place of business in
Garrettsville, Portage County, Ohio. The factory manufactures insulated electrical wire

products, primarily used in the automobile industry. The factory is comprised of various

extrusion machines that apply insulation to bare wire or cable. One such machine is

known as the “battery line” or “BY1.” As the names suggests, this machine primarily

produces battery cables.

      {¶3}   The BY1 machine consists of three sections, the second of which is called

the “caterpuller.” The caterpuller has two side-by-side conveyor belts, spaced a small

distance apart. When the BY1 machine is on, the conveyor belts run continuously at a

high rate of speed. After the wire or cable is removed from big containers or spools

during the machine’s first segment, it is directed toward the opening of the caterpuller,

where there are two small rollers. In order for the wire to go between the two conveyor

belts, it must go between the two rollers. The conveyor belts propel the wire toward the

extrusion head, where the process of applying the insulation begins.

      {¶4}   In addition to guiding the wire as it moves toward the extrusion head, the

caterpuller also maintains the proper tension on the wire so that there is no slack. If any

slack develops either before or after the wire enters the caterpuller, the wire is unlikely

to go between the two conveyor belts in the proper manner and it may become

necessary to turn off the entire machine so that the wire can be re-positioned.

Moreover, if the wire does not go through the caterpuller properly, the insulation process

is adversely affected necessitating the insulation to be scraped from the wire.

      {¶5}   Immediately outside the opening to the caterpuller is a safety guard sitting

directly above the moving wire. When properly positioned, it blocks objects resting

upon the wire from being pulled into the caterpuller toward the “pinchpoint” of the two




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conveyor belts. However, the placement of the safety guard also inhibits the machine

operator’s ability to see whether the wire is properly going between two posts and

toward the conveyor belts. To alleviate this issue, the operator can lift the safety guard

away from the wire while the machine is still running. Also, attached to the guard is a

separate small wire that the operator can use to lock the guard out of the “safety”

position.

       {¶6}   Appellee’s employee handbook expressly provides that all safety guards

must be properly positioned when a machine is operating.         Nevertheless, appellee

requires its employees to operate the machine as efficiently as possible, producing the

greatest amount of insulated wire and the least amount of scrape.

       {¶7}   In relation to machine operators, appellee prohibits possession of cell

phones inside the factory. The policy is set forth in the employee handbook, and is

orally explained to every new hire at the outset of his employment. In addition, each

new hire is required to execute a written statement acknowledging that he was informed

of the company’s cell phone policy. The no cell phone policy rule is zero tolerance--

possession of a cell phone results in immediate termination.

       {¶8}   Appellee hired Richard Wright as a machine operator in February 2011,

and immediately assigned him to the BY1 machine. Over at least the first six weeks of

employment, Richard was trained by a senior operator with prior experience on the BY1

machine. While the majority of the training was “hands-on,” Richard was required to

take a written test at the close of the training. According to the senior operator, he

emphasized that the safety guard should always be in the “down” position whenever the

conveyor belts are running.




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       {¶9}   Once his training was completed, Richard became the sole operator of the

BY1 machine. On December 15, 2011, near the conclusion of his shift, Richard noticed

that the spool of wire he was sending through the machine would soon be empty.

Consistent with typical procedure, he tied the end of the wire on the present spool to the

leading edge of the wire on the spool for the next job. Based upon his prior experience,

Richard was aware that the wire could become slack as the knot connecting the two

spools entered the caterpuller. As a result, he was running the BY1 machine with the

safety guard “up” so that he could watch the knot as it moved through the two rollers.

       {¶10} Due to a problem with the wire, slack developed, and the wire was no

longer moving between the two rollers. After fixing the problem with the spool, Richard

tried to re-position the moving wire between the rollers by pushing down on the wire.

When his first attempt failed, he placed his left hand behind the rollers, in the area of the

caterpuller between the rollers and the conveyor belts, and again tried to push down on

the wire. As he did so, his left hand got caught on the moving wire and was pulled into

the narrow pinchpoint between the moving conveyor belts.

       {¶11} Richard sustained serious injury to his left hand, including three broken

fingers. While receiving treatment at a local hospital, he gave a statement regarding the

incident to appellee’s human resource administrator. His statement resulted in a written

report, spurring an internal investigation into the matter by appellee. As a direct result,

the character of the guard was changed to a transparent material allowing the operator

to see the wire going into the caterpuller even with the guard down.

       {¶12} While recovering from his injury, Richard filed a complaint concerning the

incident with OSHA. Upon conducting an on-site inspection of the BY1 machine, OSHA




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issued a report finding multiple safety violations. As to the caterpuller, the report found

that appellee had not placed adequate safety guards in the area around the rollers and

conveyor belts. Therefore, appellee was fined and required to take additional remedial

measures.

      {¶13} Within two months of his injury, Richard returned to work on light duty. A

short time later, he returned to regular duty as a machine operator. However, on April

4, 2012, Richard’s cell phone was found in a desk near his work area. The cell phone

was confiscated without his knowledge, and he was told to report to appellee’s director

of human resources. When confronted with the phone, Richard admitted that it was his,

and executed a written verification that his phone was found inside the factory premises.

His employment was terminated.

      {¶14} Within six months of termination, Richard and his wife, appellants, filed the

underlying civil action against appellee. In addition to a claim for loss of consortium,

their complaint asserts claims for intentional tort under R.C. 2745.01 and for wrongful

discharge in violation of public policy. In relation to the wrongful discharge claim, their

complaint made no reference to the whistleblower statute under R.C. 4113.52; instead,

only a common law cause of action was raised.

      {¶15} Following lengthy discovery, appellee moved for summary judgment on

the entire complaint.   As to the intentional tort claim, appellee contended that the

undisputed facts support the conclusion that it did not act with a deliberate intent to

injure Richard. The motion stressed that the injury took place while the safety guard

was not in the proper position, that Richard had been instructed to always run the BY1

machine with the safety guard down, and that no other employee had been injured on




                                            5
the machine in over twenty-five years.      Concerning the wrongful discharge claim,

appellee argued that appellants could not establish that the termination was in

retaliation for the filing of the OHSA complaint because the company had a legitimate

business reason to fire Richard, violation of its cell phone policy. In support, appellee

established that twelve other employees had previously been fired for the same reason.

      {¶16} In response to appellee’s motion, appellants maintain that, under R.C.

2745.01(A) & (B), summary judgment on the intentional tort claim is improper because

of a substantial certainty that a person would suffer an injury while operating the BY1

machine. In advancing substantial certainty, they submitted the affidavit of Michael

Adams, a professor of mechanical engineering and a safety expert. Adams opined that

the injury to Richard was a substantial certainty because: (1) there were inadequate

safety guards near the “pinchpoint” where the two conveyor belts come together inside

the caterpuller; (2) Richard did not receive adequate training; and (3) the work

environment was too pressurized due to the emphasis placed upon productivity. As to

the wrongful discharge claim, appellants asserted that a jury could find that the cell

phone violation was pretextual because his supervisor had seen his cell phone inside

the factory on prior occasions, and nothing had ever been done about it until after he

filed his OSHA complaint.

      {¶17} In granting summary judgment in favor of appellee on all pending claims,

the trial court first held that appellants could not satisfy the statutory standard for an

intentional tort because they did not present any evidence that appellee knowingly

allowed him to operate the BY1 machine with the safety guard in the “up” position.

Second, the court concluded that appellants could not prevail on the wrongful discharge




                                            6
claim because they could not contradict appellee’s evidence that twelve other

employees were previously discharged for violating the company’s cell phone policy.

         {¶18} On appeal from this decision, appellants state two assignments of error:

         {¶19} “[1.] The trial court erred when it granted defendant/appellee’s motion for

summary judgment dismissing Count I, employer’s intentional tort, of plaintiffs’

complaint holding there was no factual issue to be decided by a jury.

         {¶20} “[2.] The trial court erred when it granted defendant/appellee’s motion for

summary judgment dismissing Count II, retaliatory discharge, of plaintiffs’ complaint

holding there were no factual issues for the jury to decide.”

         {¶21} Under their first assignment, appellants raise a legal issue concerning the

proper interpretation of R.C. 2745.01, governing employer civil liability for an intentional

tort. Appellants contend the statute provides two alternate ways to establish intentional

tort: (1) an intent to injure; or (2) the existence of a substantial certainty that an injury

would occur.

         {¶22} Relevant to discussion, R.C. 2745.01 states:

         {¶23} “(A) In an action brought against an employer by an employee, or by the

dependent survivors of a deceased employee, for damages resulting from an intentional

tort committed by the employer during the course of employment, the employer shall not

be liable unless the plaintiff proves that the employer committed the tortious act with the

intent to injure another or with the belief that the injury was substantially certain to

occur.

         {¶24} “(B) As used in this section, ‘substantially certain’ means that an employer

acts with deliberate intent to cause an employee to suffer an injury, a disease, a




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condition, or death.”

       {¶25} In support of this argument, appellants theorize that if an employee

demonstrates that the underlying injury was substantially certain to occur, subsection

(B) allows a jury to infer that the employer acted with a deliberate intent. Appellants

further submit that the proper interpretation of the “substantially certain” language is still

a question of first impression not yet addressed by the Supreme Court of Ohio.

       {¶26} The Supreme Court, however, has expressly held that R.C. 2745.01 sets

forth but one way to establish an intentional tort. In Kaminski v. Metal & Wire Prods.

Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, the appellate court held

that proof of an intent to cause injury was the sole means of demonstrating an

intentional tort.   On review, the Supreme Court began its analysis by quoting the

appellate decision:

       {¶27} “‘“Intent to injure” is clear and, therefore, is not defined in the statute.

“Substantially certain,” however, is not as clear. Therefore, the legislature provided a

definition.   R.C. 2745.01(B) defines “substantially certain” as acting “with deliberate

intent to cause an employee to suffer an injury, a disease, a condition, or death.”’

       {¶28} “‘When we consider the definition of “substantial certainty,” it becomes

apparent that an employee does not have two ways to prove an intentional tort as R.C.

2745.01(A) suggests. The employee’s two options of proof become: (1) the employer

acted with intent to injure or (2) the employer acted with deliberate intent to injure.

Thus, under R.C. 2745.01, the only way an employee can recover is if the employer

acted with the in intent to cause injury.’ Kaminski, 175 Ohio App.3d 227, 2008-Ohio-

1521, 886 N.E.2d 262, ¶[30-31].




                                              8
       {¶29} “As an initial matter, we agree with the court of appeals that the General

Assembly’s intent in enacting R.C. 2745.01, as expressed particularly in 2745.01(B), is

to permit recovery for employer intentional torts only when an employer acts with

specific intent to cause an injury, subject to subsections (C) and (D). See Talik v. Fed.

Marine Terminals, Inc., 117 Ohio St.3d 496, 2008-Ohio-937, 885 N.E.2d 204, ¶17 (the

General Assembly in R.C. 2745.01 ‘modified the common-law definition of an employer

intentional tort’ by rejecting ‘the notion that acting with a belief that injury is substantially

certain to occur is analogous to wanton misconduct’). See also Stetter [v. R.J. Corman

Derailment Servs., L.C.C.], 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, at

paragraph three of the syllabus, in which we hold that R.C. 2745.01 does not eliminate

the common-law cause of action for an employer intentional tort.” Id. at ¶54-56.

       {¶30} Kaminski was restated and followed by the Supreme Court in Cincinnati

Ins. Co. v. DTJ Enters,, 143 Ohio St.3d 197, 2015-Ohio-843, 36 N.E.3d 122, ¶10.

       {¶31} In this case, appellants do not attempt to argue that the averments in Dr.

Adams’s affidavit are sufficient to establish that appellee acted with deliberate intent to

cause the injury to Richard’s hand. Instead, they maintain that the averments tend to

show that the injury was substantially certain to occur. Given actual intent is required,

appellants’ argument fails since Adams’s averments and are, at best, only sufficient to

establish wanton misconduct by an employer, not intent. Wright v. Mar-Bal Inc., 11th

Dist. Geauga No. 2012-G-3112, 2013-Ohio-5647, ¶28, (inadequate training and the lack

of adequate safety guards are insufficient to show a deliberate intent to cause an injury).

       {¶32} As the trial court correctly granted summary judgment, appellants’ first

assignment lacks merit.




                                               9
          {¶33} Under their second assignment, appellants argue that summary judgment

should not have been granted on the wrongful discharge claim because their evidentiary

materials create an issue of fact as to whether appellee violated R.C. 4113.52, the

whistleblower statute. They assert that, since there is no dispute that he was fired

shortly after filing a complaint with OSHA, a jury could infer that his employment was

terminated for that reason rather than the pretextual firing for violating the cell phone

policy.

          {¶34} Appellants’ entire argument at the appellate level is based upon the

underlying assertion that the wrongful discharge claim was predicated upon a violation

of the whistleblower statute. But this argument was not advanced before the trial court.

The allegations in their complaint expressly state that they are maintaining a common-

law claim of wrongful discharge in violation of public policy. Moreover, appellants did

not move the trial court for leave to amend the wrongful discharge claim.

          {¶35} In their response to the motion for summary judgment, appellants made

reference to the whistleblower statute. However, the reference was only for the purpose

of establishing the existence of a public policy protecting an employee from retaliation

for filing an OSHA complaint. Appellants did not attempt to show that they could satisfy

the elements for a claim under R.C. 4113.52. Thus, they are foreclosed from now

asserting that they should have been permitted to proceed on the wrongful statutory

discharge claim.

          {¶36} Given that appellants alleged that Richard was fired as a direct result of

his decision to file an OHSA complaint, they could have gone forward under the

whistleblower statute.     R.C. 4113.52(B) forbids an employer from taking retaliatory




                                             10
action against an employee who files a report regarding a possible violation of a state or

federal statute that is likely to cause an imminent risk of physical harm to a person or

the public. Nevertheless, R.C. 4113.52 does not preclude them from proceeding on a

common law wrongful discharge claim in violation of public policy. An employee can

still bring the common-law claim “if he can identify a source of public policy separate

from the public policy embodied in R.C. 4113.52.” Doody v. Centerior Energy Corp.,

137 Ohio App.3d 673, 679, 739 N.E.2d 851 (11th Dist.2000), citing Kulch v. Structural

Fibers, Inc., 78 Ohio St.3d 134, 162, 677 N.E.2d 308 (1997).

       {¶37} To prevail on a claim for wrongful discharge in violation of public policy,

the plaintiff must prove: “‘“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).” (Emphasis sic.)’”

Doody, 137 Ohio App.3d at 680, quoting Painter v. Graley, 70 Ohio St.3d 377, 639

N.E.2d 51 (1994), fn. 8.

       {¶38} In discussing appellants’ wrongful discharge claim, the trial court did not

expressly refer to any of the four elements. Rather, the court only held that summary

judgment was appropriate because appellants were unable to refute the fact that

appellee had previously terminated twelve employees for the same reason Richard was

fired: i.e., violation of the company’s “no cell phone” policy. Given this, it is clear the trial




                                               11
court concluded that appellants failed to satisfy the overriding justification element.

       {¶39} In relation to such, as in discrimination cases, a burden shifting frame

work is followed. Sells v. Holiday Mgmt., 10th Dist. Franklin No. 11AP-205, 2011-Ohio-

5974, ¶21-22, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This

framework has three steps: (1) the plaintiff must first establish a prima facie case,

creating a presumption that the discharge was improper; (2) the burden of production

then shifts to the defendant to present evidence of an overriding legitimate business

justification for its actions; and (3) if the defendant carries its burden, the presumption

no longer applies and the plaintiff has the final burden of proving that the defendant’s

justification was just a pretext for its decision to terminate. Id.

       {¶40} In this case, there is no dispute that Richard was terminated within two

months of the filing of his OHSA complaint; therefore, appellants established a prima

facie case that the discharge was improper. Appellee, however, carried its burden of

demonstrating an overriding legitimate business justification for the termination. There

is no dispute that Richard was informed of the cell phone policy when he was hired, that

he admitted that he had his cell phone inside the factory, and that appellee had

previously enforced the policy by firing twelve other employees. Therefore, the question

becomes whether appellants presented any evidence showing that appellee’s reliance

upon the cell phone policy was a pretext.

       {¶41} In support of their pretext argument, appellants assert that Richard

previously brought his cell phone into the factory, and that his immediate supervisor was

aware. In deposition, Richard testified that his immediate supervisor had used his cell

phone to time the speed of another machine.            However, there is no evidence his




                                              12
immediate supervisor had the authority to fire him for the cell phone violation. More

importantly, there is no evidence that anyone with the authority to terminate Richard’s

employment was aware of his prior violations and chose not to enforce the company’s

policy. Thus, appellants’ evidence was not sufficient to establish a pretext.

       {¶42} Based on the foregoing, appellant’s second assignment is without merit

and the judgment of the trial court is affirmed.



DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.




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