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Copen v. CRW, Inc.

Court of Appeals of Ohio, Ninth District, Wayne

June 18, 2018

TOMMY COPEN Appellant
v.
CRW, INC. Appellee

          APPEAL 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 Appellant.

          SUSAN E. BAKER, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          JENNIFER HENSAL, JUDGE.

         {¶1} 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.

         I.

         {¶2} 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.

         {¶3} 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 condition.

Id. at ¶ 6-7.

         {¶4} 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.

         {¶5} 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, ...


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