[Cite as Smoot v. KBO, Inc., 2013-Ohio-4079.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                   CLARK COUNTY

 VICTOR L. SMOOT                                    :
                                                    :     Appellate Case No. 2013-CA-10
          Plaintiff-Appellant                       :
                                                    :     Trial Court Case No. 11-CV-0957
 v.                                                 :
                                                    :
 KBO, INC.                                          :     (Civil Appeal from
                                                    :     (Common Pleas Court)
          Defendant-Appellee                        :
                                                    :
                                                ...........

                                                OPINION

                           Rendered on the 20th day of September, 2013.

                                                ...........

MICHAEL J. MULDOON, Atty. Reg. #0034007, 1375 Dublin road, Columbus, Ohio 43215
     Attorney for Plaintiff-Appellant

SCOTT K. JONES, Atty. Reg. #0069859, and EVERETT L. GREENE, Atty. Reg. #0077338,
Graydon Head & Ritchey LLP, 1900 Fifth Third Center, 511 Walnut Street, Cincinnati, Ohio
45202-3157
      Attorney for Defendant-Appellee

                                                .............

HALL, J.,

        {¶ 1}    The plaintiff-employee appeals the entry of summary judgment for the

defendant-employer on claims of retaliation under R.C. 4123.90 of the Workers’ Compensation
                                                                                                 2


Act. Because there is no evidence of a causal connection between the plaintiff-employee’s

protected action and the defendant-employer’s adverse action, we affirm.

                                           I. FACTS

        {¶ 2}   Victor Smoot drove a semi truck for Klosterman Baking Co. (KBO, Inc.) at its

Springfield, Ohio, location. During his more than 20 years there, he has filed five workers’

compensation claims; the last two were in 2004 and 2006. The 2004 claim was for injuries to

Smoot’s neck and back. The 2006 claim was for injury to his right wrist. The Industrial

Commission determined that both sets of injuries resulted in percentages of permanent partial

disabilities.

        {¶ 3}   In October 2009, Smoot was medically evaluated in connection with his 2004

back injury and 2006 wrist injury. The physician who evaluated his back injury sent a written

report to Klosterman that says (among other things) that Smoot has constant pain in his back that

kept him awake at night and was made worse by prolonged sitting. The physician who evaluated

Smoot’s wrist injury also sent a written report to Klosterman. The report states (among other

things) that Smoot has severe pain in his wrist and that he has lost range of motion and strength.

The report also states that Smoot’s percentage of permanent disability for that injury is higher

than the Industrial Commission’s determination. Neither report imposes any work restrictions.

        {¶ 4}   On October 21, 2009, Smoot filed with the Bureau of Workers’ Compensation

(BWC) an application for the increase of percentage of permanent partial disability. Later that

month, Klosterman removed Smoot from his job, citing concerns about his ability to drive a truck

safely. The following month, Smoot filed an application with the BWC for temporary total

disability from October 23, 2009, until November 14, 2009, claiming that severe pain in his wrist
                                                                                                   3


prevented him from working. During the next couple of months, Smoot was medically evaluated

by other physicians. Each physician noted his limitations, but each returned him to work with no

restrictions.

         {¶ 5}   Klosterman had a modified duty off-site (MDOS) program for employees

recovering from work-related injuries. Under the MDOS program, when Klosterman does not

have a suitable light-duty assignment available for a recovering employee, the employee is given

such an assignment at a charitable organization. The employee receives the same pay and benefits

and must follow the same work rules. On February 8, 2010, Klosterman sent Smoot a letter

telling him that he had been given an MDOS assignment. The letter states that Smoot is to report

to the charity starting February 11. The letter also reminds Smoot that all of Klosterman’s work

rules apply to the MDOS assignment, including its attendance policies. On the advice of his

union representative, Smoot refused the assignment and never reported to the MDOS assignment.

On February 26, Klosterman terminated Smoot’s employment for violation of its attendance

rules.

         {¶ 6}   Smoot is a member of the Teamsters union, which has a collective bargaining

agreement with Klosterman. The union grieved the termination, arguing that the MDOS program

was for employees with restrictions and Smoot did not have any restrictions. The grievance went

to arbitration. At the arbitration hearing, Klosterman’s director of human resources testified about

what lead to Smoot’s removal from his job. The HR director said that after he read the two

October 2009 reports he became concerned about Smoot’s ability to drive a truck safely. So he

decided to take Smoot off the job until he could determine what, if any, safety risk Smoot posed.
                                                                                                                                                     4


Ultimately, the arbitrator reinstated Smoot.1

         {¶ 7}          In September 2011, Smoot filed a statutory action against Klosterman under R.C.

4123.90, the Ohio Workers’ Compensation Act provision that allows claims against an employer

for workers’ compensation retaliation. Klosterman moved for summary judgment based on a

transcript of the arbitration hearing, a 2010 deposition of Smoot, and a 2012 deposition of Smoot.

The trial court concluded that no genuine issue exists as to the reason that Klosterman terminated

Smoot’s employment and that reasonable minds could find only that Klosterman did not retaliate

against Smoot for filing the 2006 claim. Consequently the trial court sustained the

summary-judgment motion and entered summary judgment for Klosterman.

         {¶ 8}          Smoot appealed.

                                                              II. ANALYSIS

         {¶ 9}          Smoot’s sole assignment of error alleges that the trial court erred by rendering

summary judgment. We review de novo the rendering of summary judgment. See Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Rendering summary judgment is

appropriate if it is shown (1) that no genuine issue exists as to any material fact; (2) that the

moving party is entitled to judgment as a matter of law, and (3) that, construing the evidence

most strongly in favor of the party against whom the motion for summary judgment is made,

reasonable minds can come to only one conclusion, and that conclusion is adverse to that party.

Civ.R. 56(C); Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46

(1978). The party requesting summary judgment has the burden to show these things. Harless at


               1
               The reason for the arbitrator’s decision is not given by the parties or revealed by the record. Smoot’s brief says only that he was
 reinstated.
                                                                                                    5


66.

                                 A. Statutory Retaliation Claims

       {¶ 10} To establish a claim of retaliation under R.C. 4123.90, a plaintiff-employee must

prove (1) that he suffered “an injury or occupational disease which occurred in the course of and

arising out of his employment,” (2) that, for the injury or disease, he “filed a claim or instituted,

pursued or testified in any proceedings under the workers’ compensation act,” (3) that the

defendant-employer “discharge[d], demote[d], reassign[ed], or t[ook] [some] punitive action”

against him, and (4) that the defendant-employer took the adverse action because he engaged in

the protected action. R.C. 4123.90. Absent direct evidence of retaliation, a retaliation claim “must

be analyzed under the familiar burden-shifting approach applicable to most discrimination

claims.” Wysong v. Jo-Ann Stores, Inc., 2d Dist. Montgomery No. 21412, 2006-Ohio-4644, ¶ 10.

First the plaintiff-employee must establish a prima facie claim of retaliation. Id. Then the burden

shifts to the defendant-employer to articulate a legitimate, nonretaliatory reason for taking the

adverse action. Id. Finally, the burden shifts back to the plaintiff-employee to prove that the

defendant-employer’s reason is pretext and that it actually took the adverse action because he had

engaged in the protected action. Id.

                                 B. Smoot’s Retaliation Claims

       {¶ 11} Smoot’s complaint claims that Klosterman violated R.C. 4123.90 by

discriminating against him and terminating his employment because he pursued his rights under

the Workers’ Compensation Act. In support of this claim, the complaint alleges the following

facts: Smoot suffered an on-the-job injury in August 2006, (Amended Complaint, ¶ 2); he filed a

workers’ compensation claim for the injury, (id. at ¶ 3); Smoot “pursued his Workers’
                                                                                                                                                   6


Compensation claim and filed requests for compensation based on his industrial injury and

pursued his rights under the laws of the State of Ohio,” (id. at ¶ 4); Klosterman took him off the

job, (id. at ¶ 5-6, Exhibit A); Klosterman terminated Smoot’s employment, (id. at ¶ 7). The

complaint alleges that Smoot engaged in protected action twice and that Klosterman took adverse

action against Smoot twice.2 But the complaint does not causally connect either protected action

with either adverse action. Four causal connections are possible: (1) Smoot’s filing the initial

claim caused Klosterman to take him off the job, (2) Smoot’s filing the initial claim caused

Klosterman to terminate his employment, (3) Smoot’s later pursuit of permanent partial disability

caused Klosterman to take him off the job, and (4) Smoot’s later action caused Klosterman to

terminate his employment. Since the evidence required to prove each of these combinations is

different, each combination is a different claim.3

         {¶ 12} Neither Klosterman nor the trial court appears to have recognized that the

complaint asserts multiple claims. Klosterman’s motion for summary judgment contends that the

evidence shows no causal connection between Smoot’s filing the initial claim and its terminating

his employment. The motion effectively asks for judgment on claim (2) only. But Smoot’s

opposition memorandum opposes summary judgment on claim (3). It does not dispute

Klosterman’s contention regarding claim (2) but contends that the evidence supports a causal

connection between his filing the application for an increased percentage of permanent partial

disability and Klosterman’s removing him from his job. The trial court rendered summary

            2
             Filing the initial claim is plainly protected under R.C. 4123.90. But it is not clear that filing an additional application is also
 protected action. Because the issue was not raised, we assume that pursuit of the additional award is protected. Similarly, because whether
 Klosterman’s actions constituted “punitive action” was not raised, we assume they were.
            3
                Smoot, of course, may recover only once.
                                                                                                7


judgment on all four possible claims, but its written decision considers only Klosterman’s

contention, ignoring Smoot’s.

       {¶ 13} On appeal, Smoot makes the same causal-connection contention regarding claim

(3) that he made before the trial court. Klosterman also makes its same contention regarding

claim (2). Although the trial court did not consider Smoot’s contention, because our review is de

novo we will consider it. We assume that summary judgment for Klosterman is appropriate on

claims (1), (2), and (4), because Smoot does not dispute judgment on these claims.

       {¶ 14} Thus the question is whether summary judgment is appropriate on claim (3). Our

review focuses on the causal-connection element of Smoot’s retaliation claim–the evidence on

whether a causal connection exists between Smoot’s filing the application for an increase in the

percentage of permanent partial disability and Klosterman’s removing him from his job.

                                         C. The Evidence

       {¶ 15} Smoot fails to show that a genuine issue exists as to the causal-connection

element. His argument points to no evidence that affirmatively links his filing the application

with Klosterman’s taking him off the job. He merely points out that the physicians who evaluated

him said that he could return to his truck-driving job without restriction. Klosterman had no

reason not to allow him to do his job, Smoot says, so it must have taken him off the job because

he filed the application (which he did only days before he was removed). Smoot does not point to

prima facie evidence of a connection, nor does he point to evidence that the reason Klosterman

gave for taking him off the job is pretext.

       {¶ 16} Prima facie evidence “does not compel a conclusion” but is “sufficient to support

a conclusion.” State v. Williams, 11th Dist. Portage, No. 2001-P-0112, 2002-Ohio-6920, ¶ 14,
                                                                                                   8


citing State v. Wall, 115 Ohio App. 323, 336, 185 N.E.2d 115 (10th Dist.1962); see Williams v.

Akron, 107 Ohio St.3d 203, 2005-Ohio-6268, 837 N.E.2d 1169, ¶ 25 (saying that a plaintiff

establishes a prima facie case when he has produced sufficient evidence to avoid a directed

verdict). Prima facie evidence of a causal connection in a retaliation claim exists if an “inference

of a causal connection” can reasonably be made between the plaintiff-employee’s protected

action and the defendant-employer’s adverse action. Wysong, 2006-Ohio-4644, at ¶ 12. Here, no

such inference can reasonably be made. “[W]e recognize that ‘[t]he burden of establishing a

prima facie case of retaliation is not onerous and is easily met.’” Id., quoting Greer-Burger v.

Temesi, 8th Dist.Cuyahoga No. 87104, 2006-Ohio-3690, ¶ 15. But here no evidence so much as

hints that the application played any part in the decision to remove Smoot from his job. There is

simply no evidence that the reason Klosterman removed Smoot was his filing the application.

Rather, the HR director’s cross-examination testimony at the arbitration hearing suggests that

when he decided to remove Smoot he had not yet seen the application:

       Q. My understanding from your testimony on direct examination, you said this was the

       application for increased percentage of permanent partial disability filed by the attorney

       for Mr. Smoot; is that correct?

       A. Yes, sir.

       Q. And the date on that is October 21, 2009; is that correct?

       A. Yes, sir.

       Q. And, again, this document was a document that you would have eventually received

       from * * * whoever it goes to before it gets to you?

       A. It eventually would have gotten to me, yes.
                                                                                                   9


       Q. And do you know when it got to you?

       A. No, sir, I don’t.

(Arb. Hearing Tr. 95-96).

       {¶ 17} “[A] retaliatory discharge claim survives summary judgment if a plaintiff raises a

genuine issue of material fact as to the veracity of an employer’s explanation.” (Citation omitted.)

Wysong at ¶ 14. The plaintiff-employee must “demonstrate a genuine issue of material fact on the

issue of pretext” by showing that the defendant-employer’s proffered reason (1) lacks a factual

basis, (2) did not actually motivate the adverse action, or (3) is insufficient to motivate the

adverse action. Id. at ¶ 13. Smoot cannot, or at least does not, show any of these.

       {¶ 18} Klosterman’s proffered reason for removing Smoot from his job is its concern

about his ability to drive a truck safely. At the arbitration hearing, Klosterman’s HR director said

that in October 2009 he received (and read) two reports from physicians who had evaluated

Smoot earlier that month. One report was from a physician who evaluated Smoot in connection

with the back injury Smoot suffered in 2004. The HR director quoted some statements in the

report that worried him:

       · “‘[Smoot] has had constant 8 out of 10 pain in his back since [receiving the injuries].’”

          (Arb. Hearing Tr. 38).

       · “‘He states that the discomfort keeps him awake at night, but is not keeping him from

          driving.’” (Id.).

       · “‘He complains of not being able to sleep for more than two to three hours due to his

          pain. He states that it is interfering with household chores such as vacuuming and

          dishes and hurts while driving, but is not interfering with driving. The pain is sharp and
                                                                                                                                      10


                 shooting down the legs from the back.’” (Id. at 39).

         ·        “‘He does complain of numbness and tingling into his legs and feet, but is not having

                 difficulty with falling or climbing steps.’” (Id.).

The other report was from a different physician who evaluated Smoot in connection with his

2006 wrist injury. Some of the worrisome statements in this report quoted by the HR director

include:

         · “‘Physical limitations due to this injury or occupational disease: The claimant has

                 difficulty with range of motion in the wrist and loss of strength.’” (Id. 42).

         · “‘Locations of increased and decreased sensitivity: The claimant experiences

                 numbness, tingling and burning in his wrist.’” (Id.).

         · “‘Adverse effects on sleep: Intermittent restless sleep due to discomfort from injuries

                 sustained in industrial accident.’” (Id.).

         · “‘Activities which worsen symptoms: Cold exposure worsens symptoms.’” (Id.).

The HR director said that Klosterman had not known that Smoot was still having such severe

problems, so the reports “kind of caught [them] blind-sided.” (Id. at 45). The director said that he

thought the best thing to do was take Smoot off the job temporarily. He called Klosterman’s

director of transportation and told him that he had “some major concerns about Mr. Smoot’s

ability to operate [their] vehicles safely.” (Id.). The HR director then called the human resources

coordinator at Klosterman’s Springfield location, Krystel Wheeler. 4 He told her that he had

decided “to temporarily take Mr. Smoot off of the job until [they] could figure out where [they]


             4
            The HR director is based in Cincinnati. There is a human resource coordinator at each bakery location who handles local human
 resource matters.
                                                                                                                                                11


were with this evaluation.” (Id. at 45).

         {¶ 19} No evidence controverts the HR director’s reason for taking Smoot off the job or

suggests that the reason is mere pretext for unlawful retaliation. Wheeler was the one who

actually told Smoot that he was being taken off the job, and Smoot’s deposition testimony about

what she told him corroborates the HR director’s reason: “She said, we don’t trust you driving

our trucks. That was her exact words * * *.” (2010 Smoot Dep. 10); “She just said they

don’t–they don’t trust me driving a truck.” (Id. at 12). Also, uncontroverted evidence shows that

at the time Smoot was removed from his job he was unable to work because of the pain in his

wrist. Smoot was removed near the end of October 2009, either on the 23rd or the 30th.5 The

month after Smoot was removed, he filed an application for temporary total disability

compensation claiming that because of “severe pain in [his] right hand and wrist,” (2012 Smoot

Dep. at 47), he was unable to work from October 23, 2009, until November 14, 2009, (id. at 45).

And Smoot admitted during deposition that severe pain in his right hand and wrist prevented him

from operating a truck safely. (Id. at 48).

         {¶ 20} No genuine issue of fact exists as to the causal connection between Smoot’s

filing the application for the increase of percentage of permanent partial disability and

Klosterman’s taking him off the job. Construing the evidence most strongly in Smoot’s favor, a

reasonable mind could conclude only that Klosterman took him off the job because it was

worried about his ability to drive a truck safely. Klosterman is entitled to judgment as a matter of

law. We conclude therefore that summary judgment for Klosterman is appropriate on claim (3) of

            5
             The date is not clear. According to Smoot, it was the 23rd. (2010 Smoot Dep. 10-11). But according to Smoot’s attorney, it was
 either the 30th, (Arb. Hearing Tr. 91, 100, 106), or the 31st, (id. 17). The HR director agreed with Smoot’s attorney that it was the 30th. (Id.
 96).
                                                                                            12


Smoot’s complaint.

       {¶ 21} The sole assignment of error is overruled.

       {¶ 22}   The trial court’s judgment is affirmed.

                                        .............




DONOVAN and CELEBREZZE, JJ., concur.

(Hon. Frank D. Celebrezze, Jr., Eighth District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).



Copies mailed to:

Michael J. Muldoon
Scott K. Jones
Everett L. Greene
Hon. Douglas M. Rastatter
