[Cite as Lebron v. A&A Safety, Inc., 2012-Ohio-1637.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96976




                                   ESTABAN LEBRON
                                                              PLAINTIFF-APPELLANT

                                                        vs.

                                   A&A SAFETY, INC.
                                                              DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-737167

        BEFORE: Cooney, P.J., Keough, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: April 12, 2012
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ATTORNEY FOR APPELLANT

Alan I. Goodman
55 Public Square, Suite 1300
Cleveland, OH 44113-1971


ATTORNEY FOR APPELLEE

Karen Soehnlen McQueen
Krugliak, Wilkins, Griffiths & Doughe
4775 Munson Street NW
Canton, Ohio 44735
                                             3



COLLEEN CONWAY COONEY, P.J.:

       {¶1} Plaintiff-appellant, Estaban Lebron (“Lebron”), appeals the trial court’s

grant of summary judgment in favor of defendant-appellee, A&A Safety, Inc. (“A&A”).

We find no merit to the appeal and affirm.

       {¶2} In his complaint, Lebron alleges A&A wrongfully terminated his

employment in retaliation for his filing and pursuing a claim for workers’ compensation

benefits. A&A is involved in the heavy road construction industry. The majority of its

employees work only during road construction season, which varies each year depending

on the weather.

       {¶3} A&A hired Lebron to work in its Cleveland branch in 2004.            Lebron

worked as a “striper” or “tailgunner,” which required his operating a machine that

released paint on the road.   On December 12, 2006, Lebron was injured in an accident at

work and filed a workers’ compensation claim. He returned to work within days of the

accident, with restrictions. He completed his treatment, which consisted of physical

therapy and pain medication, in March 2007, and returned to work without restrictions in

April 2007.

       {¶4} Lebron worked the 2004 through 2008 seasons, but was not called back for

the 2009 season. He claims A&A did not call him back to work because he was pursuing

additional workers’ compensation claims.       A&A claims it did not call Lebron back
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because it had a 44% reduction in work that season.           Jeffrey Chase (“Chase”), the

manager of A&A’s Cleveland branch, testified that when he was confronted with a

significant decrease in work, he recalled those individuals whom he believed had the best

skills and those skills most suited for the available work.

         {¶5} When Lebron was not recalled for work in 2009, he filed this wrongful

termination action against A&A, claiming it fired him in retaliation for his new workers’

compensation claims. After conducting discovery, A&A filed a motion for summary

judgment, which the court granted. Lebron now appeals, raising three assignments of

error.

                                    Standard of Review

         {¶6} An appellate court reviews a trial court’s decision on a motion for summary

judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241

(1996). Summary judgment is appropriate when, construing the evidence most strongly

in favor of the nonmoving party, (1) there is no genuine issue of material fact; (2) the

moving party is entitled to judgment as a matter of law; and (3) reasonable minds can

come to but one conclusion, that conclusion being adverse to the nonmoving party.

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

citing Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995),

paragraph three of the syllabus.

                                   Excluded Documents
                                            5

      {¶7} In the first assignment of error, Lebron argues the court erred in not

considering certain documents submitted in support of his brief in opposition to A&A’s

motion for summary judgment. Lebron contends the documents, which consisted of

records from the Ohio Bureau of Workers’ Compensation and the Ohio Industrial

Commission websites, did not have to be authenticated because they are public records

available on the internet. He asserts that the court could have taken judicial notice of

these documents.

      {¶8} Civ.R. 56(C) places strict limitations upon the type of documentary evidence

that a party may use in support of or in opposition to summary judgment. Documents

merely attached to a summary judgment motion, even though allegedly certified as

official records, are not cognizable. Bass-Fineberg Leasing, Inc. v. Keller, 8th Dist. No.

96107, 2011-Ohio-3989, ¶ 11, citing Spier v. Am. Univ. of the Caribbean, 3 Ohio App.3d

28, 29, 443 N.E.2d 1021 (1st Dist.1981). If a document does not fall within one of the

categories of evidence listed in Civ.R. 56(C), it can only be introduced as proper

evidentiary material when it is incorporated by reference in a properly framed affidavit

pursuant to Civ.R. 56(E). Biskupich v. Westbay Manor Nursing Home, 33 Ohio App.3d

220, 222, 515 N.E.2d 632 (8th Dist.1986).

      {¶9} Documents purportedly printed from a website do not comport with the strict

limitations on documentary evidence set forth in Civ.R. 56(C). Without an affidavit
                                             6

from a competent witness to verify the documents, the trial court was not permitted to

consider them and properly excluded them.

                                       Judicial Notice

       {¶10} Lebron further argues that the court could have and should have taken

judicial notice of the workers’ compensation documents.           He contends the website

contains public records.

       {¶11} Under Evid.R. 201, a court may take judicial notice of an adjudicative fact

that is “not subject to reasonable dispute in that it is either (1) generally known within the

territorial jurisdiction of the trial court or (2) capable of accurate and ready determination

by resort to sources whose accuracy cannot reasonably be questioned.” It is impossible to

determine the credibility and reliability of documents purportedly printed from a website.

The reliability of such documents is questionable, unless verified by a sworn affidavit.

In Rude v. NUCO Edn. Corp., 9th Dist. No. 25549, 2011-Ohio-6789, ¶ 16, the court held

that it could not take judicial notice of facts posted on a website because it “did not

supply the information in a manner that allows for judicial notice of a discrete fact

without further inquiry.”     Therefore, the trial court properly disregarded Lebron’s

unverified documents.

       {¶12} The first assignment of error is overruled.

                                   Wrongful Termination
                                            7

       {¶13} In his second and third assignments of error, Lebron asserts that (1) the trial

court erred in finding that he failed to establish a prima facie case of wrongful

termination, and (2) he failed to present evidence of a causal connection between his

workers’ compensation claim and the alleged retaliatory discharge. We discuss these

assigned errors together because they are interrelated.

       {¶14} Lebron argues A&A chose not to call him back to work for the 2009 season

simply because he was pursuing additional workers’ compensation claims. He sought to

have additional claims allowed to include a disc bulge and herniation of the spine as well

as lost wages. He contends that the “[t]emporal proximity between the Appellee’s failure

to recall Appellant and his pursuit of his workers’ compensation claim is deemed indirect

evidence such as to permit an inference of retaliation.” We disagree.

       {¶15} To establish a prima facie case for retaliatory discharge, an employee must

prove that he or she: (1) was injured on the job; (2) filed a workers’ compensation claim;

and (3) was discharged in contravention of R.C. 4123.90. Wilson v. Riverside Hosp., 18

Ohio St.3d 8, 479 N.E.2d 275 (1985), syllabus.

       {¶16} R.C. 4123.90 provides in pertinent part: “No employer shall discharge,

demote, reassign, or take any punitive action against any employee because the employee

filed a claim * * * under the workers’ compensation act for an injury or occupational

disease which occurred in the course of and arising out of his employment with that
                                           8

employer.” The workers’ compensation statute mandates that R.C. 4123.90 “be liberally

construed in favor of employees.” R.C. 4123.95.

      {¶17} If the plaintiff establishes his or her prima facie case, then the burden of

production shifts to the employer to articulate a legitimate nonretaliatory reason for its

action. Ayers v. Progressive RSC, Inc., 8th Dist. 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.” Kilbarger v. Anchor Hocking Glass Co., 120 Ohio App.3d

332, 338, 697 N.E.2d 1080 (5th Dist.1997).

      {¶18} 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 pretextual, and that the real reason for the discharge was the employee’s protected

activity under the Workers’ Compensation Act. Markham v. Earle M. Jorgensen Co.,

138 Ohio App.3d 484, 492, 741 N.E.2d 618 (8th Dist.2000).         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. Id., citing Bertrand v. Collinwood Serv. Ctr., 8th Dist. No. 58508,

1991 WL 81487 (May 16, 1991).

      {¶19} The scope of R.C. 4123.90 is narrow and protects only against adverse

employment actions taken in direct response to the filing or pursuit of a workers’
                                           9

compensation claim. “When considering whether an employer has a legitimate

nonretaliatory reason for discharging an employee, the court must keep in mind the fact

that an employee who files a workers’ compensation claim is not insulated from

discharge.” Id.   R.C. 4123.90 does not suspend the rights of an employer nor does it

shield an employee from otherwise lawful actions taken by the employer. “To hold

otherwise would render employers virtually powerless to combat fraud and/or blatant

inefficaciousness on the part of any employee who happened to have a pending workers’

compensation claim.” Id. at 494.

      {¶20} To establish pretext, a plaintiff must demonstrate “‘that the proffered reason

(1) has no basis in fact; (2) did not actually motivate the employer’s challenged conduct;

or (3) was insufficient to warrant the challenged conduct.’” Lascu v. Apex Paper Box

Co., 8th Dist. No. 95091, 2011-Ohio-4407, ¶ 27, quoting Dews v. A.B. Dick Co., 231 F.3d

1016, 1021 (6th Cir.2000). Regardless of which option is chosen, the plaintiff must

produce sufficient evidence from which the jury could reasonably reject the employer’s

explanation and infer that the employer intentionally retaliated against him. Id., citing

Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.2003).

      {¶21} Lebron does not argue that A&A’s proffered reason has no basis in fact, nor

does he argue the proffered reason was insufficient to warrant A&A’s action. Rather,

Lebron suggests the proffered reason did not actually motivate the adverse action. We

disagree.
                                          10

       {¶22} Chase testified by way of affidavit and deposition that the drastic reduction

in available work was the primary reason he decided not to recall Lebron to work. Chase

testified as follows:

       Q: Why did you rehire him all the previous years and not this year?

       A: Because this year we had an economic downturn, and I was looking at
       not calling everything — in a good year everybody comes back within a
       two- three-week period because we get busy all at once. This year highway
       — heavy-highway work, especially the subcontractor, has been on the
       wane, and we were looking at bringing people back as needed as we
       normally do based on their skill levels.

       {¶23} In deciding which employees to recall, seniority was not a consideration.

Chase explained that although he recalled some employees with less seniority than

Lebron, those employees demonstrated greater skills and therefore offered more

flexibility to perform varying kinds of tasks required by the limited amount of available

work. Lebron’s skills were limited because he performed 90% tailgunning, and striping

was affected more than other kinds of work. Chase explained during his deposition:

       He’s a good employee but others surpassed him in skills, some of them
       having a CDL [a Commercial Driver’s License], more experience. He was
       paint striper, tailgunner, and, again, he was a good employee but didn’t
       have the ambition to do more.

       {¶24} Although Chase knew that Lebron filed a workers’ compensation claim in

2006, he called Lebron back to work in 2007 and 2008.        There is no evidence Chase

knew Lebron was pursuing an additional claim in 2009 when he decided not to recall

Lebron.    A&A’s main office is located in Amelia, Ohio, which is located near
                                          11

Cincinnati. Anna Knechtly (“Knechtly”), A&A’s human resource manager who works

in the main office, received all the paperwork for A&A’s workers’ compensation claims.

She stated in her affidavit that she did not communicate with branch managers,

supervisors, or other employees in the local branches regarding workers’ compensation

claims or claims for additional allowances.

       {¶25} Knechtly further stated that the only communication she made to anyone in a

local branch regarding any workers’ compensation claim would be to notify them of any

changes in work limitations that employees have communicated to her.            Because

Knechtly never received any notification of changes in any work limitations for Lebron

after the initial receipt of those limitations in 2006 and 2007, she did not communicate

with Chase or anyone else at the Cleveland branch regarding Lebron’s additional

workers’ compensation claim. Because there is no evidence that Chase knew about

Lebron’s additional workers’ compensation claim when he decided not to recall Lebron

back to work for the 2009 season, Lebron fails to establish a prima facie case of

retaliatory discharge.

       {¶26} Further, Lebron relies solely on his own affidavit to disprove A&A’s

legitimate reason for his discharge.    In his affidavit, he asserted that it is “hard to

believe” that Knechtly did not tell Chase about his workers’ compensation claims. He

also claims that Chase “must have known” about Lebron’s claims because he appeared

with Knechtly at a workers’ compensation hearing before the Industrial Commission of
                                           12

Ohio on March 13, 2008, to determine Lebron’s weekly wage.             To support these

allegations, Lebron relies on documents printed off the workers’ compensation website

that we have already determined do not comply with the strict requirements of Civ.R.

56(C) and therefore are not admissible.

       {¶27} However, even if these documents were admissible, they still do not help

Lebron’s case. The hearing on March 13, 2008 was held to determine the amount of

compensation he lost from December 12, 2006 (the date of injury) to April 26, 2007 (the

date he could return to full duties).   There is no evidence that Chase knew this hearing

related to a new claim. In fact, in his affidavit, Chase specifically stated that he was

unaware that Lebron had made any attempts to pursue additional claims. Because Chase

is not responsible for handling A&A’s workers’ compensation claims and is not familiar

with the details of each claim, he could have easily concluded that this was an ongoing

process as opposed to a new claim.

       {¶28} Morever, Chase recalled Lebron for the 2008 season, which would have

lasted through the summer of 2008, months after the March 13th workers’ compensation

hearing. If anything, evidence that Chase knew about Lebron’s claim for lost wages in

the spring of 2008 strengthens A&A’s argument that his dismissal was not related to his

workers’ compensation claim. The fact is, despite knowledge of his wage claim, Chase

did not terminate Lebron in 2008 after he attended the hearing on that claim. In 2009,

Chase recalled workers as needed to complete a limited amount of work.
                                            13

       {¶29} Under these facts, we find not only that Lebron failed to establish a prima

facie case of retaliatory discharge, we also find no evidence that A&A’s reason for not

recalling Lebron back to work in 2009 was pretextual. Accordingly, the second and third

assignments of error are overruled.

       {¶30} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the 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.


___________________________________________________
COLLEEN CONWAY COONEY, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR
