Ohio: Employer’s Failure to Call Employee Back to Work Was Due to Poor Economy, Not Retaliatory Motive for the Filing of a Comp Claim

An Ohio appellate court, in Lebron v. A&A Safety, Inc., 2012 Ohio 1637, 2012 Ohio App. LEXIS 1435 (Apr. 12, 2012), recently affirmed a trial court’s summary judgment order favoring a former employer in a civil action filed by a former employee who claimed he had not been called back for work because he filed workers’ compensation claims against the employer. Finding the defendant employer’s reason for not recalling the employee was not pretextual–it contended that due to the weak economy, its business revenue had fallen by 44 percent–the appellate court agreed that the former employee had failed to show that the employer had retaliatory motives when it did not recall plaintiff for work.  

The employer was engaged in the heavy road construction industry. The majority of its employees work only during road construction season, which varied each year depending on the weather. Plaintiff, Estaban Lebron, was hired to work in 2004, operating a machine that released paint on the finished road. In December 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.

Lebron worked during the 2007 and 2008, but was not called back for the 2009 season. He filed the instant civil action, claiming the employer did not call him back to work because he was pursuing additional workers’ compensation claims. The employer countered that it did not call Lebron back because it had a 44% reduction in work that season. The trial court granted summary judgment and Lebron appealed.

The court acknowledged that once an employee established his or her prima facie case, then the burden of production shifted to the employer to articulate a legitimate nonretaliatory reason for its action. The court observed that the 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.

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 was pretextual, and that the real reason for the discharge was the employee’s protected activity under the Workers’ Compensation Act. The court stressed that the ultimate burden remained at all times on the employee to prove that the employer had a retaliatory motive for the discharge.

The court found that the evidence supported the trial court’s finding, that among other things, the employer knew that Lebron filed a workers’ compensation claim in 2006, yet called him back to work in 2007 and 2008. The appellate court found not only that Lebron failed to establish a prima facie case of retaliatory discharge, it also no evidence that the employer’s reason for not recalling Lebron back to work in 2009 was pretextual.