Opinion
Case No. 98 CA 120.
September 27, 1999.
CHARACTER OF PROCEEDINGS: Civil Appeal from Mahoning County Common Pleas Court, Case No. 97 CV 1201.
JUDGMENT : Affirmed.
APPEARANCES:
Attorney Joseph A. Moro, For Plaintiff-Appellant.
Attorney Timothy J. Jacob, For Defendants-Appellees.
JUDGES: Hon. Joseph J. Vukovich, Hon. Edward A. Cox, Hon. Gene Donofrio.
OPINION
Plaintiff-appellant Raymond Boggs appeals the decision of the Mahoning County Common Pleas Court which granted summary judgment in favor of defendant-appellee Commercial Intertech Corporation. For the following reasons, the judgment of the trial court is affirmed.
STATEMENT OF THE CASE
Appellant began working for appellee in October 1993. Thereafter, appellant injured his shoulder and was unable to work for almost eight months. During this time, appellant collected workers' compensation benefits. When appellant returned to work in October 1994, he received a letter from appellee which stated that appellant missed 160 out of 249 work days which results in a 64.26% absence rate. The letter also stated:
"Your absences have been of the extended variety and covered by medical documentation but be forewarned that continued absenteeism on your part will lead to discharge. No Company is required to continue an employment relationship with one who, in effect, is working part-time.
This letter should be considered a written warning and you are put on notice that continued absences on your part will lead to further disciplinary action up to and including discharge."
Appellant continued to work without incident until he began a lengthy absence on April 1, 1996 due to back and elbow injuries. Appellant collected workers' compensation benefits during the seven months that he was unable to work. Appellant returned to work on November 6, 1996, on which day he received a letter which served to suspend him for five days subject to discharge for excessive absenteeism. The suspension letter stated that, since the prior warning letter, appellant missed 153 days of work which results in a 41.6% absence rate. A pre-discharge hearing was held and on November 14, 1996, appellee notified appellant that he was being terminated for excessive absenteeism.
In March 1997, appellant filed suit against appellee alleging retaliatory discharge in violation of R.C. 4123.90. Appellant sought reinstatement and backpay. However, appellee motioned for summary judgment, and the trial court granted said motion in May 1998. The within timely appeal followed, wherein appellant's sole assignment of error alleges that the trial court erred in granting summary judgment for appellee.
LAW AND ANALYSIS
Pursuant to R.C. 4123.90, an employer is prohibited from discharging an employee because the employee filed a claim or instituted, pursued, or testified in any proceeding under the workers' compensation act. However, this unambiguous statutory provision does not give an employee an absolute right to continued employment merely because he is collecting workers' compensation. The employee must advance a prima facie case of retaliatory discharge. First, the employee must demonstrate that he filed a workers' compensation claim for an injury which occurred in the course of his employment. See Wilson v. Riverside Hosp. (1985), 18 Ohio St.3d 8. Secondly, he must show that he was discharged and allege that the discharge was the result of a retaliatory motive. Id. It is then incumbent upon the employer to assert that the employee was discharged for a legitimate nonretaliatory reason. Boyd v. Winton Hills Med. and Health Ctr., Inc. (Mar. 5, 1999), Hamilton App. No. C-980355, unreported, 2. Thereafter, the employee must demonstrate that the reason given by the employer is pre-textual Id. , citing Kilbarger v. Anchor Hocking Glass Co. (1997), 120 Ohio App.3d 332.
Appellant's only evidence is that he was terminated and that he received workers' compensation benefits. The following facts are uncontroverted with regards to appellant: he received workers' compensation when he was off work for eight months in 1994; he was issued a written warning about missing over 64% of his scheduled work days; he had notice that his employer would seek to discharge him for any future long-term absences; he was injured in the Spring of 1996; he collected worker's compensation due to his industrial injury; he returned to work on November 6, 1996; and he was then discharged for the stated reason of excessive absenteeism. Seven months elapsed from the time appellant filed for workers' compensation until he was discharged, weakening any inference of retaliation. Moreover, a bona fide company policy prohibiting long-term absences or excessive absenteeism rebuts the inference that an employee who violates the policy was terminated for retaliatory motives. Vince v. Parma Community Gen. Hosp. (Jan. 21, 1988), Cuyahoga App. No. 53180, unreported, 4.
Appellant's brief is accompanied by Exhibit 1 which is an arbitrator's decision in a dispute between appellee and the union that was released after the trial court granted summary judgment. This decision held that appellant was not terminated for just cause and reinstated appellant without backpay. The arbitrator described events that occurred during appellant's workers' compensation proceedings which strengthen the inference that part of the reason for appellant's discharge was for pursuing continuing workers' compensation benefits. However, appellee correctly asserts that this court may not consider information contained in documents that were not before the trial court. In re Contested Election (1995), 72 Ohio St.3d 411, 413, citing State v. Ishmail (1978), 54 Ohio St.2d 402.
In this vein, the affidavit of appellee's Manager of Human Resources, Clinton Lynch, states:
"Commercial's policy since 1983 has been to review the attendance records of employees with long-term absences on a case-by case basis. When, due to long-term absences, an employee is, in effect, working part-time a written warning is issued to the employee informing the employee of the number of days missed, the number of scheduled work days, and usually includes an expression of the percentage of total work days missed. Notice include a warning that further discipline, including discharge, may result if long-term absences continue.
Plaintiff was warned, and eventually terminated, according to Commercial's long-term absentee policy introduced in 1983 and the warning and discharge notices issued in this case to Plaintiff are the standard warning documents issued to employees excessively absent over the long-term."
This affidavit also contained examples of ten employees who had been disciplined under the company's policy on absenteeism, most of whom had long-term absences that were not the result of injuries covered by workers' compensation. Mr. Lynch claimed that employees were disciplined under the policy regardless of the reasons for their absence.
In the form of the aforementioned affidavit describing the company's long-term absentee policy and giving examples of others who had been disciplined for long-term absences, appellee demonstrated a legitimate nonretaliatory basis for appellant's discharge. Thus, in seeking summary judgment, appellee met its initial burden as the movant. See Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. See, also, Boyd , supra. In order to avoid summary judgment, appellant had the burden to produce competent evidence that he was specifically discharged because he sought workers' compensation. Molden v. Davey Tree Expert Co. (Dec. 8, 1989), Trumbull App. No. 88-T-4093, unreported, 5. Although Civ.R. 56 (C) requires that the evidence be construed in favor of the nonmovant, appellant may not rest on a bare allegation that he believes that he was discharged in violation of R.C. 4123.90. Laithwaite v. Pizza Hut Hallrich Co. (Aug. 19, 1986), Mahoning App. No. 85 C.A. 98, unreported, 2. See, also, Civ.R. 56 (E). "[P]assive conduct of receiving workers' compensation benefits, was not, in itself, enough to invoke R.C. 4123.90." Id.
Appellant was warned in the first letter, received in 1994 after an eight month absence, that additional continued absences would constitute cause for dismissal. Then, in 1996, appellant missed seven months of work. These absences are undisputed. In the three years that he worked for appellee, appellant missed 313 or 40% of his scheduled worked days. Appellee thereafter discharged appellant as it had done to others who had violated the policy after being warned. Although appellee's policy is applied on a case-by-case basis, there is no indication in the record that appellant was discharged as a result of his workers' compensation activities. See Riley v. Youghiogheny and Ohio Coal Co. (May 26, 1988), Harrison App. No. 410, unreported, where this court did not find it significant that an excessive absence policy was applied on a case-by-case basis. Because appellant failed to produce evidence that appellee's reason for discharging him was a pretext, appellant's sole assignment of error must be overruled. See Kilbarger , supra at 338.
For the foregoing reasons, the trial court's entry of summary judgment is affirmed.
Cox, P.J., dissents; see dissenting opinion., Donofrio, J., concurs.
APPROVED:
________________________________ JOSE J. VUKOVICH, JUDGE
I must respectfully dissent from the decision reached by the majority.
In the case at bar, it was undisputed that appellant experienced a lengthy absence from work solely as a result of an industrial injury, from February of 1994 to October of 1994, during which time he received workers' compensation benefits. Upon appellant's return to work appellee clearly acknowledged that his absence was related to an industrial injury as appellee referred to same as being of the "extended variety and covered by medical documentation" when it warned appellant against further absenteeism in a written memorandum. From October of 1994 to April 1, 1996, when appellant again sustained an industrial injury, it was uncontroverted that appellant missed no work days and that his work record remained untarnished. Appellant was then absent from work from April 1, 1996 to November 6, 1996 as a result of his second industrial injury, during which time he again received workers' compensation benefits. It was immediately upon appellant's return to work that appellee suspended him for five days subject to discharge for excessive absenteeism. Clearly, there can be no doubt that appellant's absenteeism was directly related to his industrial injuries on both occasions.
In support of its motion for summary judgment, appellee contended simply that appellant was terminated according to its "uniformly-applied long-term absence policy which provides for warning and discharge of employees who are not available to work on a regular, consistent basis, no matter what the reason for their unavailability." Appellee offered the affidavit of one of the custodians of employee records and referred to several other employees who had been "disciplined" in accordance with the subject policy.
However, at no point did appellee offer any definitive explanation of its long-term absence policy or refer to the exact terms and conditions under which such policy would become applicable. The term "excessive absenteeism," without further explicit definition, invites abuse. Furthermore, in the majority, if not all, of the examples of other employees who were "disciplined" under the long-term absence policy, reasons other than absences for industrial injuries only were cited as resulting in policy violations, including absences for personal business and personal illness. Finally, it is unclear from appellee's informative exchange regarding these individuals whether the long-term absence policy was applied consistently in each instance and whether such individuals were terminated from their employment with appellee, as was appellant.
I find the majority's reliance upon Laithwaite, supra and Riley, supra to be misplaced in light of the facts presented in the case at bar. In both Laithwaite and Riley, this court was faced with addressing employee terminations under written company policies regarding absenteeism, which provided defined parameters including, maximum time periods beyond which an employee's leave from employment could not extend. In Laithwaite, we specifically concluded that because the employer did not discharge the employee until long after she had instituted a claim for workers' compensation benefits and because the employer's six-month leave of absence policy justified termination, the trial court did not err in granting summary judgment in favor of the employer. Such is not the case in the within matter. Appellee had no written policy regarding absenteeism, or if it did, no such policy was offered as evidence. Although a written policy is not required, neither the trial court nor this court can determine by way of a summary judgment proceeding, without further testimony and evidence, what terms and conditions were made a part of the subject absenteeism policy. We also cannot determine whether the policy in question was applied consistently by appellee against all employees.
Additionally, in Riley, supra the employer supported its motion for summary judgment with various answers to interrogatories and references to various deposition testimony. Such is not the case in the within matter. As previously stated, appellee offered only the affidavit from one of the custodians of employee records.
In Johnson v. Rawac Plating Company (1988), 48 Ohio App.3d 171, the court held at its syllabus:
"When a claimant files an action against his former employer pursuant to R.C. 4123.90 alleging that his discharge was retaliatory for his having filed a workers' compensation claim, the trial court errs in granting summary judgment to the employer when there is a genuine issue of material fact as to exactly why the claimant was discharged, i.e., the court cannot simply accept the employer's argument that the discharge was pursuant to `established, written policy.'"
I find such holding to be persuasive as applied to the case at bar since appellee could point to no occasions, other than appellant's absences as a direct result of his industrial injuries, where appellant's actions were violative of the long-term absence policy. The court in Johnson further indicated that as a general rule, an employer's motives for discharging an employee are not amenable to direct proof by the employee. As the employee provided an affidavit in support of his motion in opposition to the employer's motion for summary judgment, the court in Johnson found he controverted the employer's assertion that it simply discharged him in accordance with the established policy to the extent of his ability to do so. I find such to be the case in the within matter as well. Appellant filed an affidavit in support of his motion in opposition to appellee's. motion for summary judgment and thereby controverted, to the best of his ability, appellee's assertion that his termination from employment was simply in accordance with its long-standing, long-term absence policy.
Finally, I am persuaded by the reasoning offered by the Twelfth Appellate District in the recent case of Rauhuff v. American Fan Co. (June 21, 1999), Butler App. No. CA98-09-188, unreported, wherein the court concluded that a question of fact existed as to whether the application of an absenteeism policy at issue was a pretext, when the inconsistencies of the policy were "read in concert with" additional evidence offered by the employer. As in Rauhuff, I find that there is a clear public policy embodied in R.C. 4123.90 of allowing employees to use the workers' compensation system without fear. Appellee's action in terminating appellant for absences which were solely and directly related to his industrial injuries was contrary on its face to workers' compensation legislation which is designed to protect employees who are injured while on the job.
I find that appellant advanced a prima facie case of retaliatory discharge as he demonstrated that he filed a workers' compensation claim for an injury which occurred in the course of his employment; established that he was discharged by appellee; and, alleged that such discharge was the result of a retaliatory motive. As the majority correctly notes, it was then the obligation of the employer to establish that the employee was discharged for a legitimate nonretaliatory reason. I am not satisfied that in presenting its motion for summary judgment, appellee produced that evidence for which it bore the burden of production at trial. See, Dresher, supra. A blanket assertion that an employee's discharge was premised upon a long-term absence policy does not provide sufficient evidence to meet a moving party's burden of proof. Even assuming arguendo that appellee did produce such evidence by the affidavit offered in support of its motion for summary judgment and its lengthy comparison of the applicability of the long-term absence policy to other employees, I would nonetheless find that genuine issues of material fact existed as to whether the application of the absenteeism policy at issue was pre-textual in nature and what legitimate nonretaliatory reason appellee had for discharging appellant. As such, only additional evidence and testimony provided by both parties would offer the trial court an opportunity to weigh the credibility of the witnesses in order to reach an appropriate adjudication on the issues presented in this case.
Therefore, I would reverse the decision of the trial court granting summary judgment in favor of appellee and would remand this matter for further proceedings before the trial court.
APPROVED:
______________________________ EDWARD A. COX, PRESIDING JUDGE