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Smoot v. KBO, Inc.

Court of Appeals of Ohio, Second District

September 20, 2013

VICTOR L. SMOOT Plaintiff-Appellant
KBO, INC. Defendant-Appellee

Civil Appeal from Common Pleas Court Trial Court Case No. 11-CV-0957

MICHAEL J. MULDOON, Atty. Reg. #0034007, Attorney for Plaintiff-Appellant

SCOTT K. JONES, Atty. Reg. #0069859, and EVERETT L. GREENE, Atty. Reg. #0077338, Graydon Head & Ritchey LLP, Attorney for Defendant-Appellee



(¶ 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 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.


(¶ 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 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. 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.


(¶ 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. ...

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