FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
WAYNE, OHIO CASE No. 13 CV 0129
NATALIE F. GRUBB and MARK E. OWENS, Attorneys at Law, for
E. BAKER, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
JENNIFER HENSAL, JUDGE.
Tommy Copen appeals from the judgment of the Wayne County
Court of Common Pleas that granted summary judgment in favor
of CRW, Inc. We affirm in part, and reverse in part.
This Court previously set forth the underlying facts of this
case as follows:
CRW, Inc. ("CRW") hired Mr. Copen to work as a
truck driver in 2009. Mr. Copen suffered a workplace injury
in 2010 and subsequently filed a workers' compensation
claim. The Bureau of Workers' Compensation allowed the
claim for a lumbosacral sprain and contusion to the right
foot. As a result of his injuries, CRW offered Mr. Copen a
light duty position that included washing the trucks, which
he accepted. The light duty position, like his truck driving
position, did not require Mr. Copen to work on the weekends.
According to CRW, due to a seasonal change in the flow of
business, it offered Mr. Copen a new light duty position that
would require him to work on the weekends. The offer required
Mr. Copen to report to work the following day, a Saturday.
Mr. Copen, however, did not report to work the next day.
Instead, he reported to work as usual on the following Monday
to discuss the change in his schedule with Dennis Brown,
CRW's Director of Safety and Human Resources. There is no
dispute that Mr. Copen was upset about the proposed schedule
change because it required him to work on the weekends, so he
declined the offer. Mr. Brown did not provide Mr. Copen with
an alternative schedule and, according to CRW, Mr. Copen
became irate and stormed out of Mr. Brown's office.
There is no dispute that Mr. Copen's employment with CRW
ended after his meeting with Mr. Brown. There is a dispute,
however, as to whether Mr. Copen quit, or whether CRW fired
him. According to CRW, Mr. Copen voluntarily terminated his
employment due to his insubordination in refusing to accept
the new light duty work schedule. Mr. Copen, on the other
hand, maintains that CRW terminated him and that it changed
his work schedule in an attempt to force him to quit.
Copen v. CRW, Inc., 9th Dist. Wayne No. 15AP0034,
2017-Ohio-349, ¶ 2-4.
As a result of his termination, Mr. Copen sued CRW in 2010,
but dismissed that action without prejudice. Id. at
¶ 5. He then re-filed his case and asserted claims for
retaliation in violation of Revised Code Section 4123.90
based upon his pursuit of a workers' compensation claim,
and disability discrimination in violation of Section 4112.02
based upon his actual or perceived disability. Relevantly,
after a period of discovery, CRW moved for summary judgment
on both of Mr. Copen's claims. Id. at ¶ 6.
This Court previously summarized that motion, as well as Mr.
Copen's response, as follows:
CRW advanced several arguments in its motion, including: (1)
Mr. Copen could not establish that CRW retaliated against him
or took any adverse employment action against him because he
terminated his own employment and the change in his schedule
did not constitute an adverse employment action; (2) even if
CRW did take an adverse employment action against him, it had
legitimate, nondiscriminatory and non-retaliatory reasons for
doing so; (3) Mr. Copen could not establish that he was
disabled, or that CRW perceived him as being disabled, for
purposes of his disability discrimination claim; and (4) Mr.
Copen could not establish that CRW's proffered
legitimate, non-discriminatory and non-retaliatory reasons
for taking any adverse employment actions were a mere pretext
for unlawful retaliation and discrimination.
In response, Mr. Copen argued that CRW did, in fact, take an
adverse employment action against him by materially changing
his work schedule and by terminating him after he told CRW
that he would be unable to comply with the new schedule. He
further argued that CRW's proffered legitimate,
non-retaliatory and non-discriminatory reasons for doing so
were a mere pretext for unlawful retaliation and
discrimination. In support of his argument, Mr. Copen
asserted that CRW's President (Mr. Wood) and Director of
Safety and Human Resources (Mr. Brown) expressed disdain
regarding his injuries, questioned their legitimacy, and
believed that he was manipulating the system in order to
obtain benefits. He further asserted that CRW was aware that
he could not work on weekends and changed his schedule in an
attempt to force him to quit so that it would not have to pay
him unemployment benefits. Regarding CRW's claim that he
could not establish that he is disabled, Mr. Copen argued
that he is disabled as defined in Section 4112.01(A)(13)
because his physical injuries limit his ability to walk,
stand, and work. He also argued that CRW perceived him as
being disabled because it knew about his injuries and
received certain medical notes and test results regarding his
Id. at ¶ 6-7.
The trial court granted CRW's motion, holding that no
genuine issue of material fact remained, and that CRW was
entitled to judgment as a matter of law. Mr. Copen appealed,
raising three assignments of error for our review.
Id. at ¶ 8. On appeal, he challenged the trial
court's grant of summary judgment, as well as its denial
of another motion and its failure to strike an affidavit from
the record. Id. at ¶ 9, 14, 19. This Court
affirmed the trial court's decision on the latter two
assignments of error. Id. at ¶ 18, 20. With
respect to the trial court's grant of summary judgment in
favor of CRW, this Court reviewed the summary-judgment
briefing and the trial court's order. We ultimately
determined that - given the complexity of the case and the
number of arguments presented - we could not properly review
the trial court's order because it provided no
explanation of its reasoning. Id. at ¶ 11-13.
We, therefore, remanded the matter for further proceedings.
After this Court issued its decision, CRW filed a renewed
motion for summary judgment with the trial court. According
to Mr. Copen, his counsel called the trial court and spoke
with someone who indicated that the trial court would not be
considering CRW's renewed motion, and that the trial
court did not want additional briefing from Mr. Copen. Mr.
Copen asserts that his counsel relied upon these
representations and, consequently, did not file a brief in
opposition to CRW's renewed motion. Thereafter, the trial
court issued a new order granting CRW's motion for
summary judgment wherein the trial court explained its
reasoning. Mr. Copen then filed a motion to vacate the trial
court's judgment under Civil Rule 60(B) and, before the
trial court ruled on that motion, filed a notice of appeal
with this Court. The trial court then denied Mr. Copen's
motion to vacate, ...