[Cite as Glenn v. Hose Master, L.L.C., 2016-Ohio-1124.]


                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 103160



                                         REGINALD GLENN

                                                           PLAINTIFF-APPELLANT

                                                     vs.

                                  HOSE MASTER, L.L.C., ET AL.

                                                           DEFENDANTS-APPELLEES




                                              JUDGMENT:
                                               AFFIRMED



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-14-826941

        BEFORE:         Stewart, P.J., S. Gallagher, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: March 17, 2016
ATTORNEYS FOR APPELLANT

Brian D. Spitz
Sydney Strickland Saffold
Kelly L. Wilson
Spitz Law Firm
25200 Chagrin Boulevard, Suite 200
Beachwood, OH 44122


ATTORNEYS FOR APPELLEE

Thomas R. Simmons
Christine Michelle Snyder
Tucker Ellis L.L.P.
950 Main Avenue, Suite 1100
Cleveland, OH 44113




MELODY J. STEWART, P.J.:

       {¶1} Defendant-appellee Hose Master, L.L.C., discharged plaintiff-appellant Reginald

Glenn, after learning that he made a racially offensive video on Hose Master premises and posted

it to social media.      Glenn filed this action against Hose Master and his supervisor,

defendant-appellee Joe Gancos, claiming that he was actually discharged in retaliation for filing a

workers’ compensation claim after he suffered a minor injury to his finger. In addition to the

retaliation claim, Glenn raised claims of wrongful discharge, discharge in violation of public

policy, disability discrimination, and intentional infliction of emotional distress.
         {¶2}    Hose Master filed a motion for summary judgment on all claims, its primary

argument being that Glenn’s discharge had nothing to do with the workers’ compensation claim

and that the video constituted a legitimate, non-discriminatory reason for the discharge. Glenn

opposed summary judgment by arguing that Hose Master knew at the time of his discharge that

he had recently suffered a back injury and acted preemptively to discharge him before he could

file a workers’ compensation claim for his back injury. He argued that Hose Master’s reliance

on the video was pretext for retaliation. The court granted summary judgment without opinion

and this appeal followed.

                              I. Workers’ Compensation Retaliation

         {¶3}   The first and second assignments of error collectively challenge the summary

judgment entered on the workers’ compensation retaliation claim. Glenn argues that the court

erred by granting summary judgment because he established a prima facie case of retaliation, that

Hose Master failed to offer a legitimate reason for his discharge, and that his termination was

pretext for retaliation.

         {¶4} R.C. 4123.90 states that no employer “shall discharge, demote, reassign, or take any

punitive action against any employee” because the employee filed a workers’ compensation

claim.

         {¶5} Workers’ compensation retaliation claims, like employment discrimination claims,

are difficult to prove because there is rarely direct evidence of an employer’s intent to retaliate.

Olive v. Columbia/HCA Healthcare Corp., 8th Dist. Cuyahoga Nos. 75249 and 76349, 2000

Ohio App. LEXIS 914 (Mar. 9, 2000). This difficulty in proof has caused the courts to develop

a burden-shifting framework that enables a plaintiff to show retaliation in the absence of direct

evidence.
       {¶6} The burden-shifting framework first requires an employee alleging a retaliatory

discharge to state a prima facie case. An employee claiming workers’ compensation retaliation

states a prima facie case when the employee alleges suffering an injury on the job, filing a claim

for workers’ compensation, and discharge by the employer in contravention of R.C. 4123.90.

Wilson v. Riverside Hosp., 18 Ohio St.3d 8, 479 N.E.2d 275 (1985), syllabus.

       {¶7} If the employee states a prima facie claim of retaliation, the burden shifts to the

employer to articulate a legitimate nonretaliatory reason for its action. Ayers v. Progressive

RSC, Inc., 8th Dist. Cuyahoga No. 94523, 2010-Ohio-4687, ¶ 14. “‘[T]he burden does not

require the employer to prove the absence of a retaliatory discharge. It merely requires the

employer to set forth a legitimate, nonretaliatory reason for the employee’s discharge.’” Lebron

v. A&A Safety, Inc., 8th Dist. Cuyahoga No. 96976, 2012-Ohio-1637, ¶ 18, quoting Kilbarger v.

Anchor Hocking Glass Co., 120 Ohio App.3d 332, 338, 697 N.E.2d 1080 (5th Dist.1997).

       {¶8} If the employer sets forth a legitimate, nonretaliatory reason for the employee’s

discharge, the employee must establish that the reason given by the employer is pretext for

retaliation. Dragmen v. Swagelok Co., 8th Dist. Cuyahoga No. 101584, 2014-Ohio-5345, ¶ 18.

       {¶9} Although the burden of proof shifts back and forth between the employee and the

employer, the ultimate burden remains at all times on the employee to prove that the employer

had a retaliatory motive for the discharge.      Bertrand v. Collinwood Serv. Ctr., 8th Dist.

Cuyahoga No. 58508, 1991 Ohio App. LEXIS 2278 (May 16, 1991).

       {¶10} In its motion for summary judgment, Hose Master conceded that Glenn established

the first two elements of a prima facie case of retaliatory discharge claim relating to the finger

injury: that he suffered a work-related injury and filed a claim for workers’ compensation. It

argued, however, that Glenn had no evidence to show a causal connection between his filing for
workers’ compensation and the discharge. In opposition to the motion for summary judgment,

Glenn relied on “circumstantial evidence” in the form of statements by coworkers to the effect

that Hose Master would fire an employee who made a workers’ compensation claim, that Hose

Master was aware that he had injured his back while working and would likely be filing a

workers’ compensation claim for that injury, and that Hose Master fabricated a basis for his

discharge by claiming that the video violated an unwritten policy against cell phone use when

other employees who had violated the policy were not terminated.

       {¶11} The third element of a prima facie case of retaliatory discharge requires the

claimant to demonstrate a causal connection between the filing of the workers’ compensation

claim and being terminated.    Dragmen, 8th Dist. Cuyahoga No. 101584, 2014-Ohio-5345;

Harris v. OHNH EMP, LLC, 2015-Ohio-3212, 37 N.E.3d 1256, ¶ 14 (9th Dist.). The causal

connection requires evidence of a retaliatory state of mind of the employer. Buehler v. AmPam

Commercial Midwest, 1st Dist. Hamilton No. C-060475, 2007-Ohio-4708, ¶ 24.

       {¶12} Viewing the evidence most favorably to Glenn as the party opposing the motion for

summary judgment, see Civ.R. 56(C), the record shows that he suffered an injury to his finger in

late September 2013 or early October 2013. Characterizing the injury as a “small cut on my

finger,” Glenn did not seek medical treatment. A “lump” subsequently developed at the site of

the cut, and on October 5, 2013, Glenn had the finger examined by an emergency room doctor.

An x-ray failed to show the presence of any foreign body, so Glenn was told that the lump was

scar tissue. He averred that “the hospital sent a staff member to speak with me and the staff

member automatically filled out a report of the injury.”     That “report” was apparently an

application for workers’ compensation benefits. Glenn reported to work the next day and

worked without incident until December 2, 2013.
         {¶13} On December 2, 2013, Glenn experienced back pain while performing a work task.

 Thinking that he had kidney stones, he informed his supervisor about his pain and was told to

leave work and see a doctor. A medical examination showed that Glenn suffered a back spasm.

He returned to his duties the following day after presenting “medical documents” to his

supervisor and the Hose Master human resources department. On December 5, 2013, Glenn

reported to work complaining about back pain. He notified his supervisor and was told to leave

his shift early to seek medical treatment. A new examination resulted in a diagnosis of a lumbar

sprain. Glenn reported to work on December 6, 2013, and presented his supervisor with the new

documentation. He resumed his work duties, but just hours into his shift, was terminated.

         {¶14} Hose Master’s reason for terminating Glenn’s employment was because he posted

to a social media network a racially and sexually offensive video made on the Hose Master shop

floor.   On the day before Glenn was terminated, Hose Master received an email from an

individual unknown to the supervisory staff.        The email stated, “I have some alarming

information to share with you regarding one of your employees in the Cleveland location.” That

information consisted of picture and video files attached to the email. The recipient of the email

was reluctant to open email attachments from an unknown source, so he forwarded the email up

the management chain. The email eventually reached Hose Master’s executive vice president.

He opened the attachment and saw it contained a video that Glenn had posted to a social media

account. The video contained dialog that was racially and sexually derogatory and laced with

profanity.

         {¶15} Although Glenn was not wearing his Hose Master uniform in the video nor were

the words “Hose Master” shown on the video, other screen captures from Glenn’s social media

account showed photographs of him on the shop floor wearing the Hose Master uniform.
         {¶16} The vice president showed the video to Glenn’s supervisor and the plant manager.

The supervisor then brought Glenn to the vice president’s office. Glenn did not deny that he

was depicted in the video nor did he deny that he made the video on the Hose Master shop floor.

The executive vice president terminated Glenn’s employment, an act for which he claimed sole

responsibility. The supervisor confirmed that he had no input into the decision to discharge

Glenn.

         {¶17} None of this evidence establishes a causal connection between Glenn’s termination

and the workers’ compensation claim that he filed two months earlier. In Meyers v. Goodrich

Corp., 8th Dist. Cuyahoga No. 95996, 2011-Ohio-3261, we held that “[t]o be liable for

retaliating against an employee for taking part in a protected activity, the employer must have

knowledge of it.” Id. at ¶ 22. In support of its motion for summary judgment, Hose Master

offered the affidavit of the vice president, who stated that at the time he made the decision to

discharge Glenn, he “was also not aware that Mr. Glenn had a prior minor finger injury that was

covered by workers’ compensation.” This statement was consistent with the vice president’s

deposition testimony that the company’s human resources department handled any workers’

compensation claims and that the vice president has “not had to deal with them.” The vice

president also stated in his affidavit that while he informed the Hose Master president of what the

video showed, the decision to terminate Glenn’s employment was his alone.

         {¶18} Glenn offered no evidence in opposition to the motion for summary judgment to

rebut the vice president’s assertion that he was unaware at the time of Glenn’s discharge that

Glenn had previously filed a workers’ compensation claim. Glenn did offer evidence that his

immediate supervisor was aware of the workers’ compensation claim for the finger, but that fact

was immaterial because the supervisor testified that he had no discussions with the vice president
regarding the workers’ compensation claim for the injury to Glenn’s finger. If the supervisor did

not inform that vice president of the workers’ compensation claim for the finger and additionally

had no input into the decision to discharge Glenn, his knowledge of Glenn’s workers’

compensation claim could not establish a causal connection between the claim and discharge.

       {¶19} Glenn cites Kent v. Chester Labs, Inc., 144 Ohio App.3d 587, 761 N.E.2d 60 (1st

Dist.2001), for the proposition that he need not offer direct proof that he was terminated in

violation of R.C. 4123.90, but Glenn extends Kent far beyond its facts. Kent involved a worker

who reported a work injury, only to have her supervisor tell her “I can tell you right now, this is

not a Workmen’s Comp claim.” Id. at 589-590. The supervisor repeated that warning several

times, saying “do not pursue it that way.” Id. at 590. When the worker filed a workers’

compensation claim for her injury, the employer discharged the worker for being dishonest about

how she was injured. The First District Court of Appeals agreed that a claimant filing a

workers’ compensation retaliation claim need not offer “smoking gun” evidence to establish a

prima facie case and could instead rely on circumstantial evidence. Id. at 592. The First

District then reversed summary judgment for the employer on the workers’ claim for workers’

compensation retaliation because it found that the evidence, viewed most favorably to the

worker, created a question of fact on the issue of retaliation. Id. at 593.

       {¶20} The statement that circumstantial evidence may be used to prove a claim for

workers’ compensation retaliation is unremarkable. See Olive, 8th Dist. Cuyahoga Nos. 75249

and 76349, 2000 Ohio App. LEXIS 914 (Mar. 9, 2000). The worker in Kent could establish a

triable issue of fact on whether her discharge was in retaliation for filing a workers’

compensation claim because she had been warned not to file a claim and was discharged after she

did.   Glenn, however, filed his workers’ compensation claim some two months before his
termination. During that two-month period, he worked without incident and offered no evidence

to show any kind of retaliation during that period. And with Hose Master offering unrebutted

evidence that the supervisor never spoke to the vice president about Glenn’s workers’

compensation claim for the finger, evidence that the supervisor knew of the workers’

compensation claim proved nothing.            See Meyers, 8th Dist. Cuyahoga No. 95996,

2011-Ohio-3261 (“it is not enough for an employee to simply make general allegations that

‘decision makers generally have knowledge of charges filed by employees.’”) Id. at ¶ 2, quoting

Scott v. Eastman Chem. Co., 275 Fed.Appx. 466, 482 (6th Cir.2009).

          {¶21} In fact, the thrust of Glenn’s opposition to summary judgment was that his second

injury was the impetus for his termination. Glenn argued that his back injury loomed in Hose

Master’s mind as a reason for his discharge; that Hose Master, knowing that Glenn had

previously filed a workers’ compensation claim for his finger, was likely to fire him for a similar

claim for his back injury. That argument fails because a potential workers’ compensation claim

for the injury to Glenn’s back had nothing to do with his workers’ compensation claim for the

injury to the finger.     And it bears emphasizing here that Glenn’s complaint for workers’

compensation retaliation was limited solely to the workers’ compensation claim for his finger.

See complaint, ¶ 43 (“Defendants terminated Glenn in retaliation for filing a Workers

Compensation claim for his Finger Injury.”)         Glenn cannot prove a prima facie case of

retaliation for filing the claim for injury to his finger with evidence that he suffered a different

injury.

          {¶22} Glenn also argued below that the video itself was not an adequate basis for his

dismissal, nor would his dismissal have been warranted under Hose Master’s work policy that

prohibited employees from using their cell phones on the shop floor during work hours. Those
arguments are irrelevant to establish that Hose Master terminated Glenn for filing a workers’

compensation claim for an injury to his finger. To establish a prima facie case of retaliation,

Glenn had to show a causal connection between his discharge and the claim he filed two months

previously. Arguments going to the existence of the video and a potential violation of a work

rule relating to cell phones do not create a triable issue of fact on causation — they are arguments

going to the third part of the burden-shifting test showing why Hose Master’s decision to

terminate Glenn was pretext for retaliation.

       {¶23} Having viewed the evidence most favorably to Glenn, we agree that the court did

not err by finding that he failed to show the existence of any genuine issue of material fact on the

issue of whether his employment was terminated in retaliation for filing a workers’ compensation

claim. Reasonable minds could only conclude that Glenn’s termination was unrelated to the

workers’ compensation claim he filed two months prior to his termination. With Glenn having

failed to establish a prima facie case of retaliation, the court did not err by granting summary

judgment to Hose Master on the retaliation claim.

       {¶24} The same analysis applies to Glenn’s workers’ compensation retaliation claim

against defendant Gancos, the supervisor.

       {¶25} The supervisor testified that, apart from being shown the video in the presence of

the vice president and the plant manager, he had no input into the decision to discharge Glenn.

Glenn argues that the supervisor was aware of his back injury and that Glenn needed to seek

medical treatment for it, but he fails to explain why the supervisor’s knowledge of the back

injury was relevant to establish that his employment was terminated for filing a previous

workers’ compensation claim for an injury to his finger.
       {¶26} Glenn also argues that the supervisor testified at deposition that “in past practice he

had been consulted about employees who committed serious violations of Hose Master policies

prior to disciplinary action being taken,” claiming that he is entitled to the inference that the

supervisor participated in the decision to discharge him. This is a mischaracterization of the

evidence: the supervisor testified that three previously discharged employees were being

considered for rehire and that management asked him to give an opinion on “what type of

employee” each worker had been. The supervisor made it clear that apart from that “feedback,”

he did not participate in the decision to rehire the employees. In any event, the supervisor’s role

in unrelated cases is not evidence of what he did in this case. The supervisor not only stated that

he had no input into the decision to terminate Glenn’s employment, the vice president

corroborated the supervisor’s statement by saying that he alone made the decision to discharge

Glenn solely on the basis of the video, without any knowledge that Glenn had previously filed a

workers’ compensation claim. Glenn had no evidence to counter the supervisor’s testimony, so

he impermissibly relied on conjecture. Carney v. Cleveland Hts. - Univ. Hts. City School Dist.,

143 Ohio App.3d 415, 429, 758 N.E.2d 234 (8th Dist.2001).

       {¶27} Regardless of his knowledge that Glenn had injured his finger some two months

prior to his discharge, there was no evidence to show that the supervisor had anything to do with

the decision to fire Glenn. The supervisor was not the individual liable for retaliating against

Glenn, and the court properly granted summary judgment on that basis.

                      II. Wrongful Discharge in Violation of Public Policy

       {¶28} Glenn’s third assignment of error complains that the court erred by granting

summary judgment to Hose Master on his claim that his discharge violated public policy. That
claim was premised on the theory that his employment was terminated so that Hose Master could

avoid being liable for a workers’ compensation claim for Glenn’s back injury.

          {¶29} A claim that an employee has been wrongfully discharged in violation of public

policy requires the plaintiff to prove (1) a clear public policy exists and is manifested in a state or

federal constitution, in statute or administrative regulation, or in the common law (the clarity

element), (2) dismissing employees under circumstances like those involved in the plaintiff’s

dismissal would jeopardize public policy (the jeopardy element), (3) the plaintiff’s dismissal was

motivated by conduct related to the public policy (the causation element), and (4) the employer

lacked      an   overriding    legitimate   business    justification   for    the   dismissal    (the

overriding-justification element). Collins v. Rizkana, 73 Ohio St.3d 65, 69-70, 652 N.E.2d 653

(1995).

          {¶30} In Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723, 950

N.E.2d 938, the syllabus states:

          1. R.C. 4123.90 expresses a clear public policy prohibiting retaliatory employment
          action against injured employees.

          2. Ohio recognizes a common-law tort claim for wrongful discharge in violation
          of public policy when an injured employee suffers retaliatory employment action
          after injury on the job but before the employee files a workers’ compensation
          claim or institutes or pursues a workers’ compensation proceeding.

          3. To establish causation, a plaintiff who alleges wrongful discharge in violation
          of public policy as expressed in R.C. 4123.90 must prove that the adverse
          employment action was retaliatory, which requires proof of a nexus between the
          adverse employment action and the potential workers’ compensation claim.

          4. The remedies available for wrongful discharge in violation of the public policy
          against retaliatory employment actions as expressed in R.C. 4123.90 are limited to
          those listed in R.C. 4123.90.
       {¶31} Sutton makes it clear that retaliatory causation is not presumed merely because an

employee is discharged soon after suffering an injury — “a discharge could be for reasons other

than those related to workers’ compensation[.]” Id. at ¶ 10. For that reason, “the retaliatory

nature of the discharge and its nexus with workers’ compensation must be established by a

preponderance of the evidence.” Id. In addition, the claimant must prove that the employer

“lacked an overriding business justification for firing him.” Id.

       {¶32} As with his retaliation claim, Glenn’s public policy argument is based on

speculation that he was discharged because he might file a workers’ compensation claim for the

back injury. Consistent with our disposition of the workers’ compensation retaliation claim, we

find that there was no evidence to show that the vice president — the person making the decision

to discharge Glenn — knew that Glenn had previously filed a workers’ compensation claim for

his finger. While it is true that Glenn’s supervisor had been aware of the workers’ compensation

claim filed for the finger injury, that knowledge could not be imputed to the vice president. See

Hudson v. S. Ductile Casting Corp., 849 F.2d 1372, 1376 (11th Cir.1988) (affirming grant of

summary judgment to the defendant on retaliatory discharge claim where there was

uncontradicted evidence that the decision makers were unaware of the plaintiff’s threat to file an

EEOC charge);      Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41-42 (5th Cir.1996)

(upholding summary judgment in an ADEA claim because an immediate supervisor’s allegedly

discriminatory statements regarding an employee’s age could not be imputed to the relevant

decision maker’s discharge of the employee). This is because the law requires the plaintiff to

show purposeful retaliation; that is, a specific intent to discharge an employee for engaging in the

protected act of filing a workers’ compensation claim.           If, at the time of employment

termination, the person making the decision to terminate is unaware that the employee may be
filing a workers’ compensation claim, the discharge cannot be retaliatory in nature. Glenn

offered no evidence to show that Hose Master’s vice president, as the sole decision maker in this

case, knew that Glenn had injured his back, much less that he would be filing a workers’

compensation claim. Glenn thus failed to establish the causation element of the tort of discharge

in violation of public policy. The court did not err by granting summary on that claim.

                                   III. Disability Discrimination

       {¶33} The fourth assignment of error complains that the court erred by granting summary

judgment on Glenn’s claim for disability discrimination. That claim alleged that a herniated

disc in Glenn’s    spine constituted a physical impairment, that Hose Master knew of this

impairment or perceived him as being disabled, and treated him differently than other similarly

situated employees based on his disabling condition.

       {¶34} We summarily reject this assignment of error for the reason that there is no

evidence to show that Hose Master knew that Glenn had a herniated disc at the time it terminated

his employment. As we have related in detail, the vice president had no knowledge that Glenn

had been injured on the job at the time he made the decision to fire Glenn, so Glenn cannot make

out a prima facie case of disability discrimination. See Hedberg v. Indiana Bell Tel. Co., Inc.,

47 F.3d 928, 932 (7th Cir.1995) (“it is intuitively clear when viewing the ADA’s language in a

straightforward manner that an employer cannot fire an employee ‘because of’ a disability unless

it knows of the disability. If it does not know of the disability, the employer is firing the

employee ‘because of’ some other reason.”)

       {¶35} Judgment affirmed.

       It is ordered that appellees recover of said 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 common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR
