Ohio Employee’s Termination Linked to Safety Violation, Not His Comp Claim
An Ohio appellate court affirmed a trial court’s decision granting an employer summary judgment in a retaliatory discharge action filed against it by an employee who was terminated soon after returning to work following a serious work-related injury [Creveling v. Lakepark Indus., 2021-Ohio-764, 2021 Ohio App. LEXIS 770 (Mar. 12, 2021)]. Acknowledging that the firing had occurred soon after the employee’s return to work, but noting that it had occurred many months after the actual injury, the appellate court agreed with the trial court that the employer had offered evidence that its decision to terminate the employee was because he had continued to violate safety protocols, and not because he had filed a claim.
The employee’s injury occurred when, in violation of company safety policies, he wore Kevlar gloves while operating a rotating machine. The termination occurred months later, on his first day after returning to work, when he again was observed wearing the prohibited gloves while operating the machine.
Background
The employee worked as a tool and die maker for the employer. Prior to his employment with the employer, he had accumulated more than three decades of experience in his line of work. At several times, the employee signed acknowledgments indicating he was familiar with the employer’s safety practices. The employer’s training materials provided that, although certain tight-fitting gloves could be worn (for cut protection), it was strongly preferred that no gloves should be worn. The training materials further, and specifically, provided that Kevlar gloves, which are a cut-resistant cloth-like glove, were never to be worn on rotating equipment.
In spite of these warnings, the employee testified that from the time of his hiring until September 13, 2016, he routinely wore Kevlar gloves while he was operating rotating equipment, including rotating machines known as the Bridgeport vertical milling machine. On September 13, 2016, the employee sustained a serious injury to his right hand while operating a Bridgeport machine. Evidence suggested that part of his Kevlar glove became entangled in the machine, drawing his hand into the machine. Surgeons were required to perform a transposition procedure, which completely removed his middle finger and moved his ring finger to the center of his hand.
On September 13, 2016, the employer filed a workers’ compensation claim on the employee’s behalf. From September 14, 2016 to April 24, 2017, the employee missed work while he recovered from his injuries. He received compensation and medical benefits from the Bureau of Workers’ Compensation throughout the period of his convalescence. The employer never disputed or contested any aspect of appellant’s claim.
Return to Work
On May 1, 2017, the employee returned to work on light duty. He did not want to work in the light-duty position, however, and immediately inquired as to how he could return to the tool and die maker position. The employee’s physician gave him a full release and, on May 8, 2017, the employee returned to the work full duty as a tool and die maker. Upon his return, appellant was able to adequately perform his job duties.
On the very day that the employee returned to work, a manager noticed that the employee was again wearing Kevlar gloves while operating a rotating machine. The employer sent the employee home, pending an investigation. The employee was terminated the following day for violating the safety protocols. The employee and his spouse subsequently filed a retaliatory discharge action against the employer, contending, inter alia, that he had been fired for exercising his right to recover under the Ohio workers’ compensation laws, specifically Ohio Rev. Code 4123.90.
Trial Court’s Decision and Appeal
The trial court granted the employer summary judgment. The employee argued that the fact that he was terminated within seven days after he returned to work established temporal proximity between the employer’s knowledge of the employee’s protected activity and the termination sufficient to constitute evidence of a causal connection.
The appellate court indicated, however, that the employee was concentrating on the wrong date. Here, the employee acknowledged that the employer was aware that he had filed for workers’ compensation benefits on or about September 13, 2016, months before appellant’s termination. The court said this did not constitute “very close” proximity between the protected activity and the adverse employment sufficient to establish causation.
Moreover, said the court, the employer’s reason for termination the employee’s employment was not mere pretext. The employee had admitted, prior to his return to work, that he had violated the employer’s safety policies and had signed an “Employee Corrective Action” to that effect. The court said it was worth repeating that the employee did not contest his 3-day suspension, after his injury, and, in fact, admitted that he violated the employer’s policy. He further admitted that violating such safety protocol upon his return to work could lead to termination. Finally, he admitted that upon his return to work, his action of operating the rotating machine while wearing Kevlar gloves was a violation of the Employee Corrective Action.
The appellate court held the employee had not made out a prima facie case of retaliation and that even if his proof was sufficient to make out such a prima facie case, it had been completely rebutted by the employer. The trial court’s decision was accordingly affirmed.