Rowe v. Hoist & Crane Serv. Group, Inc.

[Cite as Rowe v. Hoist & Crane Serv. Group, Inc., 2022-Ohio-3130.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOSEPH ROWE, ET AL., :

Plaintiffs-Appellants, :
No. 110921
v. :

HOIST & CRANE SERVICE GROUP
INC., :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 8, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-922748

Appearances:

SPITZ, Brian D. Spitz, Daniel S. Dubow, and Rocco
Screnci, for appellants.

Ritzler, Coughlin & Paglia, Ltd., Michael A. Paglia, and
Colin P. Sammon, for appellee.

EMANUELLA D. GROVES, J.:

Appellants Joseph Rowe (“Joseph”) and Joshua Rowe (“Joshua”),

(collectively “Appellants”), appeal the trial court’s judgment granting appellee Hoist

& Crane Services Group, Inc.’s (“HCSG”), motions for judgment on the pleadings

and for summary judgment. For the reasons that follow, we affirm.
Procedural History and Factual Background

HCSG provides service and maintenance for companies that use

industrial cranes and hoists in their operations. Employees of HCSG travel to client

sites, usually as two-person teams consisting of a lead technician and a technician

assistant or apprentice. HCSG hired Joshua on February 5, 2018, as a service

technician. Joshua had prior training and expertise in overhead door maintenance.

So, he acted as a lead technician for that type of job. In other jobs, he acted as a

technician assistant. On February 28, 2018, HCSG hired Joseph, Joshua’s brother,

as a technician assistant.

Appellant’s Safety Concerns

During the course of their employment, Appellants raised several

safety issues with HCSG. Joseph urged Jeff Pritchard (“Pritchard”), HCSG’s

Cleveland Branch Manager, to provide employees with training for boom and aerial

lifts. Joseph believed certification was required to operate that equipment,

especially for governmental jobs. He believed having untrained workers operate this

machinery subjected him and his coworkers to an unsafe work environment. Joseph

urged Pritchard at least once per month to secure certification training for all

employees on the equipment. Pritchard, according to Joseph, refused to secure

certification training because it was too expensive. Nevertheless, according to

Joseph, HCSG routinely instructed workers to tell clients that they were certified

even though they were not.
 On April 8, 2019, Joseph asked Pritchard again to arrange training

and certification for employees. He stressed again that it was not safe to have

uncertified technicians operating that equipment. He also told Pritchard that he

would no longer tell clients that he was certified for the equipment.

In addition to training, both Appellants complained to Pritchard

about personal protective equipment (“PPE”). Joseph routinely complained to

Pritchard that the safety cabinet was missing or had inadequate PPE. Specifically,

safety glasses, gloves, harnesses, hard hats, and respirators were either missing or

in poor condition.

Joshua also raised this issue. In January 2019, Joshua told Pritchard

that his harness was badly worn and needed to be replaced. Pritchard told Joshua

that he would address the issue, however, as of March 2019, he had not done so.

Joshua verbally reported the issue to HCSG’s safety manager noting the harness’s

poor condition and his belief that it violated Occupational Safety and Health

Administration (“OSHA”) regulations and/or guidelines. Joshua also verbally

reported to HCSG’s safety manager that Pritchard had been failing to replenish the

safety cabinet, creating an unsafe work environment.

According to their complaint, HCSG did not address any of the

Appellants’ complaints.
Joseph’s Workplace Injury

On March 19, 2019, Joseph and two coworkers were assigned to a site

in Sandusky, Ohio. Although all employees were issued hard hats, Joseph chose not

to wear his. Joseph believed that hard hats were a “site-specific PPE,” meaning they

were optional unless required by the client. At some point, Joseph hit his head. He

suffered a cut and minor bleeding. Nevertheless, Joseph took a short break and then

returned to work. Joseph did not report the injury to Pritchard at that time. The

next day, Pritchard noticed Joseph sitting in his vehicle. When he asked Joshua

what Joseph was doing, Joshua told Pritchard about the injury, and that Joseph had

complained of having a headache. Pritchard, concerned that Joseph might have a

concussion, went to talk to him. Joseph told Pritchard about the injury and that he

was not feeling well. Pritchard had Joseph arrange for a post-accident drug test per

company policy. Joseph also spoke to a nurse over the phone about his symptoms.

Joseph took a brief sick leave for a few days and returned to work. Pritchard did not

advise Joseph about filing a workers’ compensation claim, nor did Joseph indicate

that he intended to file a claim. Pritchard disciplined Joseph verbally and in writing

for failing to wear a hard hat. Joseph alleged that neither of his coworkers was

wearing hard hats. Furthermore, Joseph alleged that HCSG did not discipline them.

However, Pritchard alleged that when he investigated the incident, Joseph’s

coworkers told him they were wearing their hard hats.
Appellants’ Termination

A couple of days later, Joseph came into the main office irate. He

proceeded to enter the operation manager Traci Swann’s (“Swann”) office

unannounced and failed to knock. This was not Joseph’s first inappropriate action

towards Swann. There were two other incidents in which Joseph made suggestive

comments to Swann. Pritchard was aware of both incidents. In those situations,

Pritchard verbally reprimanded Joseph for inappropriate behavior but did not

complete a formal write-up of the incidents. On the day in question, Joseph had

learned that an employee with less time on the job had received certification training

and received a raise. Joseph reportedly came into Swann’s office very loudly and

aggressively. He used expletives and told Swann to tell Pritchard that he quit.

Joseph subsequently sent an email to Pritchard, documenting his concerns about

being bypassed for training and formally resigned, giving two weeks’ notice. Joseph

and Pritchard eventually talked, after which Joseph asked and was permitted to

withdraw his resignation. Later it was alleged that Joseph bullied the employee who

received the raise and training. However, those incidents were not documented in

writing.

On April 10, 2019, HCSG terminated the Appellants’ employment.

HCSG cited as the reason for Joseph’s termination “[i]nappropriate and

unprofessional behavior toward other team members. Inappropriate and aggressive

behavior toward management staff. Violation of HCSG Safety PPE policy.” HCSG
acknowledged on the termination form that the behavioral issues had not been

formally documented.

HCSG terminated Joshua because he had made disparaging

comments about HCSG to a client. Further, the client did not want Joshua to return

to their company and noted that they were dissatisfied with his “lackadaisical

attitude.” Joshua’s termination form did not have any notes about prior behavior

issues nor did it indicate that he had been informed of these issues or reprimanded

before his termination.

On October 4, 2019, Appellants filed suit against HCSG alleging two

counts of wrongful termination in violation of public policy (Counts 1 and 2); and

violation of the Ohio Whistleblower Statute, R.C. 4113.52 (Count 3). HCSG filed an

answer on December 6, 2019, alleging that the Appellants were terminated for

legitimate, nondiscriminatory, and nonretaliatory business reasons, along with

other defenses.

On September 25, 2020, HCSG filed a motion for judgment on the

pleadings on Counts 1 and 3. Then on September 28, 2020, HCSG filed a motion

for summary judgment on Count 2. On April 6, 2021, the trial court granted HCSG’s

motion for judgment on the pleadings as to Counts 1 and 3, finding that even

construing the facts in Appellants’ complaint as true, there were no set of facts that

would entitle them to relief. The trial court denied HCSG’s motion for summary

judgment as to Count 2.
 On July 27, 2021, HCSG filed a motion asking the trial court to

reconsider its ruling on its motion for summary judgment. On September 22, 2021,

the trial court granted HCSG’s motion for reconsideration. The trial court found

that there were no genuine issues of material fact and that “[t]here is no evidence

that (1) plaintiff [Joseph] Rowe was in the category of persons who are under the

protection of the public policy set forth in R.C. 4123.90 at the time he was terminated

and 2) [Joseph] Rowe never engaged in protected activity, and thus cannot have

been retaliated against for engaging in protected activity.”

Appellants appeal those rulings and assign the following errors for

our review:

Assignment of Error No. 1

The trial court erred in granting judgment on the pleadings on the
Rowes’ common-law claim invoking the public policy favoring
workplace safety.

Assignment of Error No. 2

The trial court erred in granting summary judgment on Joseph Rowe’s
Sutton claim.

Law and Analysis

In both assignments of error, Appellants challenge the trial court’s

findings with respect to their wrongful termination in violation of public policy

claims. In the first assignment of error, Appellants challenge the trial court’s grant

of HCSG’s motion for judgment on the pleadings as to count one of their complaint.1

1 Appellants have elected not to challenge the trial court’s ruling as to Count 3,
violation of Ohio’s Whistleblower Statute, so we will not address it in this opinion.
Appellants allege that they were terminated in retaliation for reporting workplace

safety issues to HGSC management. In the second assignment of error, Appellant

Joseph Rowe challenges the trial court’s grant of summary judgment as to Count 2

of the complaint. Joseph alleges that HGSC terminated him in anticipation of and

to prevent him from filing a workers’ compensation claim. Because the two

assignments of error address the tort of wrongful termination in violation of public

policy, we will examine it first.

Wrongful Termination in Violation of Public Policy — Generally

Ohio is traditionally an employment-at-will state, meaning that either

the employer or employee may terminate the employment relationship for any cause

or no cause. Miracle v. Ohio Dept. of Veterans Servs., 157 Ohio St.3d 413, 2019-

Ohio-3308, 137 N.E.3d 1110, ¶ 11, citing Collins v. Rizkana, 73 Ohio St.3d 65, 67, 652

N.E.2d 653 (1995). However, the Supreme Court of Ohio identified an exception to

the traditional rule, recognizing that a termination that violates public policy could

be actionable. Id., citing Greeley v. Miami Valley Maintenance Contrs., Inc., 49

Ohio St.3d 228, 551 N.E.2d 981 (1990), paragraph one of the syllabus. In Greeley,

the Supreme Court recognized that an exception to the employment-at-will doctrine

was warranted when an employee was discharged or disciplined for reasons that are

prohibited by statute. Greeley paragraph one of the syllabus. Greeley specifically

dealt with an employee who was terminated because a garnishment order was issued

requiring the employer to withdraw money from his wages to pay his child support

obligations. R.C. 3113.213(D) prohibited an employer from discharging or
disciplining an employee on the basis of such an order. Preliminarily, the court

recognized that there was a growing trend in the country that recognized

termination at will could be modified in such circumstances. Id. at 233-234.

Looking at Ohio law, the legislative history of the statute, and its ties to federal child

support legislation, the court determined that

[t]he General Assembly has expressed its will that employers be
prohibited from discharging employees for the reason upon which
appellant bases his cause of action. It is our job to enforce, not
frustrate, that policy.

Therefore, we hold that public policy warrants an exception to the
employment-at-will doctrine when an employee is discharged or
disciplined for a reason which is prohibited by statute.

Greeley at 233-234.

Over time, the court expanded the tort beyond public policy

expressed in statutes to include public policy as set forth in the federal and state

constitutions, administrative regulations, or the common law. In so doing, the court

adopted a four-part test in order to prove that someone was wrongfully terminated

in violation of public policy. A plaintiff must establish:

1. That [a] clear public policy existed and was manifested in a state or
federal constitution, statute or administrative regulation, or in the
common law (the clarity clement).

2. That dismissing employees under circumstances like those involved
in the plaintiff’s dismissal would jeopardize the public policy (the
jeopardy element).

3. The plaintiff’s dismissal was motivated by conduct related to the
public policy (the causation element).

4. The employer lacked overriding legitimate business justifications for
the dismissal (the overriding justification element).
Collins v. Rizkana, 73 Ohio St.3d 65, 69, 652 N.E.2d 653, quoting H. Perritt, The

Future of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie?, 58

U.Cin.L.Rev. 397, 398-399 (1989).

Wrongful termination in violation of a public policy for workplace safety

With that framework in mind, we turn to appellants’ first assignment

of error arguing that the trial court erred in granting appellee’s motion for judgment

on the pleadings as to count one.

Standard of Review

Preliminarily, a judgment on the pleadings deals solely with issues of

law, therefore our review is de novo. New Riegel Local School Dist. Bd. of Edn. v.

Buehrer Group Architecture & Eng., Inc., 157 Ohio St.3d 164, 2019-Ohio-2851, 133

N.E.3d 482, ¶ 8, citing Rayess v. Educational Comm. For Foreign Med. Graduates,

134 Ohio St.3d 509, 2012-Ohio-5676, 983 N.E.2d 1267, ¶ 18. De novo review

requires an independent examination of the record and law without deference to the

trial court’s decision. Torres v. Concrete Designs, Inc., 2019-Ohio-1342, 134 N.E.3d

903, ¶ 48 (8th Dist.), citing Gateway Consultants Group, Inc. v. Premier Physicians

Ctrs. Inc., 8th Dist. Cuyahoga No. 104014, 2017-Ohio-1443, ¶ 22, citing Demeraski

v. Bailey, 2015-Ohio-2162, 35 N.E.3d 913, ¶ 11 (8th Dist.).

A judgment on the pleadings limits our review “solely to the

allegations in the complaint and answer, as well as any material attached as exhibits

to those pleadings.” Schmitt v. Educational Serv. Ctr., 2012-Ohio-2208, 970

N.E.2d 1187, ¶ 10 (8th Dist.), citing State ex rel. Midwest Pride IV, Inc. v. Pontious,
75 Ohio St.3d 565, 569, 664 N.E.2d 931 (1996). Further, we must consider the

factual allegations in the complaint as true, although unsupported conclusions are

insufficient to defend against the motion. Pincus v. Dubyak, 8th Dist. Cuyahoga No.

110135, 2021-Ohio-3034, ¶ 17.

When a defendant requests judgment on the pleadings, it is

appropriate to grant the motion when the plaintiff’s complaint has failed to allege

facts that, if true, would establish the defendant’s liability. Id. at ¶ 17, citing Walters

v. First Natl. Bank, 69 Ohio St.2d 677, 433 N.E.2d 608 (1982). In other words, to

grant a motion for judgment on the pleadings, the court must determine that no

material factual issues exist and that the moving party is entitled to judgment as a

matter of law. Id., quoting Pontious at 570.

Analysis

As discussed earlier, there are four prongs to the test for wrongful

termination in violation of public policy. The first prong, the clarity element; and

the second prong, the jeopardy element, involve questions of law. Collins v.

Rizkana, 73 Ohio St.3d 65, 69-70, 652 N.E.2d 653 (1995). They encompass the

determination of whether there is a public policy covering the conduct alleged in a

case and whether that public policy is put in jeopardy by that conduct. Id. The third

prong, the causation element, and the fourth prong, the overriding justification

element, are considered to be questions of fact. Id. These prongs consider whether

the plaintiff’s termination was motivated by conduct related to the public policy and

whether the employer had an overriding legitimate business justification for the
termination. Id. Because judgment on the pleadings is a mechanism used to resolve

questions of law, the factual elements of this case are not before us. Sutton v. Tomco

Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938, ¶ 10. The

causation and overriding justification elements must be proven on remand, if

necessary. Id. For purposes of judgment on the pleadings, we consider the factual

elements of the complaint as true and determine, if true whether the plaintiff has

failed to claim facts that establish the defendant’s liability. Pincus v. Dubyak,

8th Dist. Cuyahoga No. 110135, 2021-Ohio-3034, ¶ 17. Accordingly, we consider the

clarity and jeopardy elements only.

The Clarity and Jeopardy Elements

Under the clarity element, plaintiff’s complaint must cite to evidence

of a clear public policy in Ohio that HCSG’s alleged conduct violates. See Rizkana,

73 Ohio St.3d at 70, 652 N.E.2d 653.

[T]o satisfy the clarity element of a claim of wrongful discharge in
violation of public policy, a terminated employee must articulate a clear
public policy by citation to specific provisions in the federal or state
constitution, federal or state statutes, administrative rules and
regulations, or common law. A general reference to workplace safety is
insufficient to meet the clarity requirement.

Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825,

¶ 24.

Here, the Rowes argue that HCSG created an unsafe work

environment in three ways, 1) failing to ensure workers were trained and certified in

using aerial and boom lifts; 2) failing to provide adequate safety equipment; and 3)
failing to repair or replace Joshua’s harness. In support of this argument, the Rowes

cite R.C. 4101.11 evidencing a public policy for workplace safety that HCSG violated

by its conduct.

This court has previously examined R.C. 4101.11 as a source of public

policy protecting workplace safety. At the time, we found that R.C. 4101.11 could not

be used as a basis for a wrongful termination in violation of public policy claim.

Comparing R.C. 4101.11 to the statute in Greeley, we found that R.C. 4101.11

is not a stricture against certain actions of an employer with a penalty
involved for noncompliance but rather an exhortation to the employer
to fulfil [sic] an essentially moral duty or societal obligation. Liability
in tort cannot be premised on this basis.

(Emphasis sic and citations omitted.) Radikovich v. Higbee Co., 8th Dist. Cuyahoga

No. 65374, 1994 Ohio App. LEXIS 2080, ¶ 17 (May 12, 1994).

Subsequently, the Ohio Supreme Court recognized that “[t]he public

policy of this state demands that employees be provided with a safe work

environment and that unsafe working conditions be corrected.” Kulch v. Structural

Fibers, 78 Ohio St.3d 134, 152-153, 677 N.E.2d 308 (1997). Kulch cites several

authorities in support of its finding including R.C. 4101.11. R.C. 4101.11 states,

Every employer shall furnish employment which is safe for the
employees engaged therein, shall furnish a place of employment which
shall be safe for the employees therein and for frequenters thereof, shall
furnish and use safety devices and safeguards, shall adopt and use
methods and processes, follow and obey orders, and prescribe hours of
labor reasonably adequate to render such employment and places of
employment safe, and shall do every other thing reasonably necessary
to protect the life, health, safety, and welfare of such employees and
frequenters.
 The Supreme Court has expressly identified a public policy for

workplace safety in Kulch and reiterated that finding in Pytlinski v. Brocar Prods.,

Inc., 94 Ohio St.3d 77, 760 N.E.2d 385 (2002) (“Ohio public policy favoring

workplace safety is an independent basis upon which a cause of action for wrongful

discharge in violation of public policy may be prosecuted.”). Pytlinski also cites

R.C. 4101.11 as one source of this public policy.

Nevertheless, subsequent to these decisions, some appellate districts

have questioned whether R.C. 4101.11, typically in conjunction with R.C. 4101.12,2 is

specific enough to support a public policy of workplace safety. In Whitaker v. First

Energy Nuclear Operating Co., 6th Dist. Ottawa No. OT-12-021, 2013-Ohio-3856,

¶ 21, 25, the Sixth District, found R.C. 4101.11 and 4101.12 to be very general and

broad, and found them insufficient to satisfy the clarity requirement, where the

party fails “to establish that any of these statutes were applicable to his claim or had

any bearing on the facts at issue in the case.”

However, in contrast, the Tenth District, explicitly disagreed with the

court in Whitaker finding that R.C. 4101.11 and 4101.12 “together establish that

there exists a clear public policy that is manifested in a state or federal constitution,

2 R.C. 4101.12 provides: No employer shall require, permit, or suffer any employee
to go or be in any employment or place of employment which is not safe, and no such
employer shall fail to furnish, provide, and use safety devices and safeguards, or fail to
obey and follow orders or to adopt and use methods and processes reasonably adequate
to render such employment and place of employment safe. No employer shall fail to do
every other thing reasonably necessary to protect the life, health, safety, and welfare of
such employees or frequenters. No such employer or other person shall construct,
occupy, or maintain any place of employment that is not safe.
statute or administrative regulation in Ohio favoring workplace safety for employees

and frequenters.” Blackburn v. Am. Dental Ctrs., 10th Dist. Franklin No. 13AP-619,

2014-Ohio-5329. As Kulch and Pytlinski are still binding law, we find the Tenth

District’s analysis persuasive. However, we agree with the Whitaker Court to the

extent that it found the statute cited by the plaintiff must identify a public policy

concern that applies to the facts of the case.

Appellants have elected to rely solely on R.C. 4101.11 as the source of

public policy in this case; however, that reliance is misplaced. In order to meet the

clarity element, Appellants must cite to a specific source of public policy that is

violated by HCSG’s conduct. Dohme, 130 Ohio St.3d 168, 2011-Ohio-4609, 956

N.E.2d 825 at ¶ 24. Appellants identify R.C. 4101.11 and argue that HCSG’s actions

in failing to provide adequate equipment, failing to replace damaged equipment,

and failing to provide training violates that public policy. However, R.C. 4101.11 has

long been recognized as a premises liability statute. It is “a codification of the

common-law duty owed by the owner or occupier of premises to business invitees

to keep his premises in a reasonably safe condition and to give warnings of latent or

concealed perils of which he has, or should have, knowledge.” Westwood v. Thrifty

Boy Super Mkts., Inc., 29 Ohio St.2d 84, 86, 278 N.E.2d 673 (1972). Appellants’

complaint fails to allege safety issues covered by the public policy expressed in R.C.

4101.11. Furthermore, Appellants failed to either allege that HCSG kept the

premises in an unsafe condition or did not warn of latent or concealed perils.

Consequently, their complaint does not specify a public policy violation committed
by HCSG. Therefore, Appellants’ complaint failed to establish that their termination

was in violation of a clear public policy.

We need not examine whether Appellants established the jeopardy

element. Having failed to satisfy the clarity element, they have failed to establish a

claim for wrongful termination in violation of public policy. See Dohme, 130 Ohio

St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825 at ¶ 26 (Where plaintiff failed to

establish that his termination was in violation of a clear public policy, his action

“must fail because establishment of the clarity element is essential to the survival of

his remaining claims.”).

Accordingly, we overrule Appellants’ first assignment of error.

Wrongful termination in violation of public policy—workers’ compensation
retaliation

In the second assignment of error, Appellants argue that the trial

court erred in granting HCSG’s motion for summary judgment on Count 2, Joseph’s

wrongful termination claim regarding workers’ compensation retaliation.

Standard of Review

Like a ruling on a motion for judgment on the pleadings, our review

of a summary judgment decision is de novo. Khalia Ra v. Swagelok Mfg. Co., L.L.C.,

8th Dist. Cuyahoga No. 109789, 2021-Ohio-1657, ¶ 16, citing Montgomery v.

Greater Cleveland Regional Transit Auth., 8th Dist. Cuyahoga No. 109559, 2021-

Ohio-1198, ¶ 18, citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996). De novo review requires an independent examination of the
record and law without deference to the trial court’s decision. Torres, 2019-Ohio-

1342, 134 N.E.3d 903 at ¶ 48, citing Gateway Consultants Group, Inc., 8th Dist.

Cuyahoga No. 104014, 2017-Ohio-1443 at ¶ 22, citing Bailey, 2015-Ohio-2162, 35

N.E.3d 913 at ¶ 11.

Summary judgment is warranted when (1) no genuine issue as to any

material fact remains to be litigated; (2) the moving party is entitled to judgment as

a matter of law; and (3) it appears from the evidence that reasonable minds can

come to but one conclusion, and viewing the evidence most strongly in favor of the

nonmoving party, the moving party is entitled to summary judgment. Khalia Ra at

¶ 17, Civ.R. 56(C). ‘“Once the moving party demonstrates entitlement to summary

judgment, the burden shifts to the nonmoving party to produce evidence related to

any issue on which the party bears the burden of production at trial. Civ.R. 56(E).”’

Id., quoting Mattress Matters, Inc. v. Trunzo, 2016-Ohio-7723, 74 N.E.3d 739 ¶ 10.

Wrongful Termination in violation of public policy workers’ compensation
retaliation

In the instant case, after initially denying HCSG’s summary judgment

motion, the trial court reconsidered and granted the motion finding that there

remained no genuine issue of material fact because there was no evidence that “(1)

plaintiff [Joseph] Rowe was in the category of persons who are under the protection

of the public policy set forth in R.C. 4123.90 at the time he was terminated and 2)

[Joseph] Rowe never engaged in protected activity, and thus cannot have been

retaliated against for engaging in protected activity.”
 R.C. 4123.90 states:

No employer shall discharge, demote, reassign, or take any
punitive action against any employee because the employee filed a
claim or instituted, pursued or testified in any proceedings under the
workers’ compensation act for an injury or occupational disease which
occurred in the course of and arising out of his employment with that
employer. Any such employee may file an action in the common pleas
court of the county of such employment in which the relief which may
be granted shall be limited to reinstatement with back pay, if the action
is based upon discharge, or an award for wages lost if based upon
demotion, reassignment, or punitive action taken, offset by earnings
subsequent to discharge, demotion, reassignment, or punitive action
taken, and payments received pursuant to section 4123.56 and Chapter
4141. of the Revised Code plus reasonable attorney fees * * *.

R.C. 4123.90 provides a cause of action when an employee is

terminated after filing a workers’ compensation claim. However, the Supreme Court

has recognized that the public policy of Ohio also allows a cause of action when an

employer discharges an employee after they are injured but prior to the employee

filing a workers’ compensation claim. In Sutton, Sutton injured his back while

disassembling a chop saw while at work. Sutton reported the injury to Tomco’s

president, and an hour later Sutton was terminated. Sutton had worked for Tomco

for two and one-half years and was assured that he was not being fired due to any

work ethic or job performance issue or because Sutton had broken any work rule or

company policy. Id. at ¶ 2. Sutton sued alleging unlawful retaliation under

R.C. 4123.90 and wrongful discharge in violation of public policy. Tomco moved for

judgment on the pleadings, and the trial court granted the motion as to both claims.

Sutton appealed and the Second District Court of Appeals affirmed the judgment in

part and reversed in part. The court found that R.C. 4123.90 did not expressly apply
to Sutton, but that the discharge violated the public policy expressed in R.C. 4123.90.

The Supreme Court agreed finding there was a gap in protection between when an

injury occurs and when a claim is filed, instituted, or pursued. Id. at ¶ 14. The court

found that

the General Assembly did not intend to leave a gap in protection during
which time employers are permitted to retaliate against employees who
might pursue workers’ compensation benefits. The alternative
interpretation — that the legislature intentionally left the gap — is at
odds with the basic purpose of the antiretaliation provision, which is
“to enable employees to freely exercise their rights without fear of
retribution from their employers.” Coolidge v. Riverdale Local School
Dist, 100 Ohio St.3d 141, 2003-Ohio-5357, 797 N.E.2d 61, ¶ 43

Sutton, 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938 at ¶ 22.

Joseph never filed a workers’ compensation claim, so as the trial court

noted, he was not entitled to relief under R.C. 4123.90. However, as Sutton

illustrates, a claim for wrongful termination in violation of public policy is allowed

if Joseph can establish that he was terminated in order to prevent him from filing a

workers compensation claim. ‘“Sutton created a very limited exception for

‘employees who might pursue workers’ compensation benefits’ against their

employer in the future.” McGree v. Gateway Healthcare Centre, L.L.C., 2019-Ohio-

988, 125 N.E.3d 981, ¶ 12 (8th Dist.), quoting Sutton at ¶ 22.

Through Sutton, the Supreme Court found that there is a clear public

policy expressed through R.C. 4123.90 against terminating employees after an

injury but before they file a claim. Therefore, the trial court erred when it found that

Joseph was not covered by the public policy protection expressed in R.C. 4123.90.
That public policy, as expressed in Sutton, provides that a person who is terminated

after suffering a workplace injury may be entitled to sue if they can establish that

they were fired to prevent them from exercising their right to apply for workers’

compensation benefits. To the extent that the trial court found otherwise, it erred.

Nevertheless, we must still determine whether Joseph’s termination violated this

public policy.

In their motion for summary judgment, HCSG challenged the

causation element, arguing that Joseph was unable to show that HCSG terminated

him to prevent him from filing a workers’ compensation claim. HCSG argued that

Joseph suffered a minor scratch on the head that did not put the company on notice

that Joseph was likely to file a workers’ compensation claim. Furthermore, HCSG

argues, after a day or two off, Joseph notified Pritchard that his symptoms resolved

and that he wanted to return to work.

In response, Joseph alleged that HCSG’s intent was demonstrated by

Pritchard’s knowledge of the nature of head injuries. Joseph alleged that Pritchard

was aware and commented that a head injury could have long-lasting effects and

might show symptoms at any time. Per Joseph, further evidence of HCSG’s motive

is that Pritchard told him if Joseph had gone to the hospital, it would have negatively

impacted HCSG’s safety record. Joseph suggests this evidence and the fact that he

was terminated within weeks of his injury are sufficient to create a genuine issue of

material fact as to whether he was terminated to prevent him from filing a workers’

compensation claim. We disagree.
 The mere fact that an employee is terminated after suffering a

workplace injury does not automatically create a presumption that the termination

was retaliatory. Sutton, 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938 at ¶ 10

(“Because a discharge could be for reasons other than those related to worker’s

compensation, * * * no presumption of retaliation arises from the fact that an

employee is discharged soon after an injury.”). “[T]he retaliatory nature of the

discharge and its nexus with workers’ compensation must be established by a

preponderance of the evidence.” Id. A preponderance of the evidence is “that

measure of proof that convinces the judge or jury that the existence of the fact sought

to be proved is more likely than its nonexistence.” State ex rel. Doner v. Zody, 130

Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 54.

In the instant case, Joseph’s decision to resign shortly after he was

injured is significant. Had HCSG intended to fire Joseph in order to avoid a workers’

compensation claim, the company could have accepted his resignation and refused

to allow him to withdraw it, as is their right in an at-will employment state.

Additionally, Joseph’s allegations that HCSG terminated him to

prevent a workers’ compensation claim are merely speculative. Joseph did not file

a claim. Further, he did not provide any evidence that he took any steps to begin the

process of filing a claim. Even if Pritchard did suggest that HCSG would have taken

issue with Joseph going to the hospital, Pritchard did not forbid him from going.

The entire situation surrounding Joseph’s injury amounted to a few days off work.

However, subsequently, Joseph engaged in conduct that was inappropriate and
unacceptable. Joseph’s testimony that HCSG had concerns about the nature of his

injury and the potential of a future claim is not supported by any other evidence in

the record.

Nevertheless, Joseph argues that the proximity between his injury

and his termination is evidence of HCSG’s intent. Joseph cites several cases in

support of his claim. However, the cases are unavailing to his point. In each of those

cases, the employee engaged in protected activity shortly before they were

terminated. In Thatcher v. Goodwill Industries, 117 Ohio App.3d 525, 690 N.E.2d

1320 (9th Dist.1997), the employee informed his superiors that a number of female

employees reported being sexually harassed by a coworker. The employee was

terminated a month after making the report. The Ninth District Court of Appeals

found that the employee had laid out a prima facie case for retaliatory discharge

noting that the timing of the termination was evidence that his engagement in

protected activity, i.e., reporting sexual harassment, caused his termination.

Similarly, in Dover v. Carmeuse Natural Chems., 5th Dist. Perry No.

10-CA-8, 2010-Ohio-5657, the employee was injured on the job and, after notifying

his employer, was off work for several days. Shortly afterwards, he filed a workers’

compensation claim. The employee was terminated two months later and filed suit

alleging retaliatory discharge. The court noted a number of factors that would infer

a retaliatory motive for the firing. Among them was that the employee’s exercise of

protected conduct was closely followed by some adverse employment action. Id. at

¶ 47, citing Young v. Stelter & Brinck, Ltd., 174 Ohio App.3d 221, 2007-Ohio-6510,
881 N.E.2d 874, ¶ 24 (1st Dist.); Pflanz v. Cincinnati, 149 Ohio App.3d 743, 2002-

Ohio-5492, 778 N.E.2d 1073 (1st Dist.). However, the court also noted timing alone

was insufficient to show a causal link between the employees’ act and termination.

Id.

Other cases cited by Appellant fit the same pattern. See Zechar v.

Ohio Dept. of Edn., 121 Ohio Misc.2d 52, 2002-Ohio-6873, 782 N.E.2d 163 (Ct. of

Cl.) (employee made prima facie case for retaliatory discharge when she was

informed after extended FMLA leave that her position was being eliminated.); Kosut

v. First Energy Corp., 7th Dist. Jefferson No. 12 JE 8, 2013-Ohio-2876 (employee

who was terminated an hour after making a supposedly anonymous sexual

harassment complaint to an employer hotline made prima facie case for retaliatory

discharge), Payton v. Receivables Outsourcing, Inc., 163 Ohio App.3d 722, 2005-

Ohio-4978, 840 N.E.2d 236 (8th Dist.) (employee established elements of

retaliatory discharge after being terminated within one day of reporting sexual

harassment to the employer).

HCSG established that there was no nexus between Joseph’s injury

and his termination. There were a number of intervening factors, including Joseph’s

problematic behavior and his resignation that significantly overshadows a

retaliation claim. Examining the entire record and looking at the totality of the

circumstances, Joseph has failed to establish a genuine issue of material fact.

Accordingly, we overrule the second assignment of error.

Judgment affirmed.
 It is ordered that appellee recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EMANUELLA D. GROVES, JUDGE

SEAN C. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR