[Cite as Wright v. Therm-O-Link, 2016-Ohio-7840.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
RICHARD WRIGHT, et al., : OPINION
Plaintiffs-Appellants, : CASE NO. 2015-P-0059 - vs - :
THERM-O-LINK, :
Defendant-Appellee. :
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2012 CV 01193.
Judgment: Affirmed.
Steven W. Albert, 29425 Chagrin Boulevard, Suite 216, Pepper Pike, Ohio 44122, and James G. Joseph, 75 Public Square, Suite 650, Cleveland, OH 44113 (For Plaintiffs- Appellants).
Matthew M. Ries, and Kevin P. Murphy, Harrington, Hoppe & Mitchell, Ltd., 108 Main Avenue, S.W., Suite 500, Warren, OH 44481 (For Defendant-Appellee).
THOMAS R. WRIGHT, J.
{¶1} This appeal is from the final decision in an intentional tort case.
Appellants, Richard and Reille Wright, claim the trial court erred in granting summary
judgment in favor of appellee, Therm-O-Link, Inc., on all pending claims. For the
following reasons, summary judgment was proper.
{¶2} Appellee is an extrusion wire factory, with its principal place of business in Garrettsville, Portage County, Ohio. The factory manufactures insulated electrical wire
products, primarily used in the automobile industry. The factory is comprised of various
extrusion machines that apply insulation to bare wire or cable. One such machine is
known as the “battery line” or “BY1.” As the names suggests, this machine primarily
produces battery cables.
{¶3} The BY1 machine consists of three sections, the second of which is called
the “caterpuller.” The caterpuller has two side-by-side conveyor belts, spaced a small
distance apart. When the BY1 machine is on, the conveyor belts run continuously at a
high rate of speed. After the wire or cable is removed from big containers or spools
during the machine’s first segment, it is directed toward the opening of the caterpuller,
where there are two small rollers. In order for the wire to go between the two conveyor
belts, it must go between the two rollers. The conveyor belts propel the wire toward the
extrusion head, where the process of applying the insulation begins.
{¶4} In addition to guiding the wire as it moves toward the extrusion head, the
caterpuller also maintains the proper tension on the wire so that there is no slack. If any
slack develops either before or after the wire enters the caterpuller, the wire is unlikely
to go between the two conveyor belts in the proper manner and it may become
necessary to turn off the entire machine so that the wire can be re-positioned.
Moreover, if the wire does not go through the caterpuller properly, the insulation process
is adversely affected necessitating the insulation to be scraped from the wire.
{¶5} Immediately outside the opening to the caterpuller is a safety guard sitting
directly above the moving wire. When properly positioned, it blocks objects resting
upon the wire from being pulled into the caterpuller toward the “pinchpoint” of the two
2 conveyor belts. However, the placement of the safety guard also inhibits the machine
operator’s ability to see whether the wire is properly going between two posts and
toward the conveyor belts. To alleviate this issue, the operator can lift the safety guard
away from the wire while the machine is still running. Also, attached to the guard is a
separate small wire that the operator can use to lock the guard out of the “safety”
position.
{¶6} Appellee’s employee handbook expressly provides that all safety guards
must be properly positioned when a machine is operating. Nevertheless, appellee
requires its employees to operate the machine as efficiently as possible, producing the
greatest amount of insulated wire and the least amount of scrape.
{¶7} In relation to machine operators, appellee prohibits possession of cell
phones inside the factory. The policy is set forth in the employee handbook, and is
orally explained to every new hire at the outset of his employment. In addition, each
new hire is required to execute a written statement acknowledging that he was informed
of the company’s cell phone policy. The no cell phone policy rule is zero tolerance--
possession of a cell phone results in immediate termination.
{¶8} Appellee hired Richard Wright as a machine operator in February 2011,
and immediately assigned him to the BY1 machine. Over at least the first six weeks of
employment, Richard was trained by a senior operator with prior experience on the BY1
machine. While the majority of the training was “hands-on,” Richard was required to
take a written test at the close of the training. According to the senior operator, he
emphasized that the safety guard should always be in the “down” position whenever the
conveyor belts are running.
3 {¶9} Once his training was completed, Richard became the sole operator of the
BY1 machine. On December 15, 2011, near the conclusion of his shift, Richard noticed
that the spool of wire he was sending through the machine would soon be empty.
Consistent with typical procedure, he tied the end of the wire on the present spool to the
leading edge of the wire on the spool for the next job. Based upon his prior experience,
Richard was aware that the wire could become slack as the knot connecting the two
spools entered the caterpuller. As a result, he was running the BY1 machine with the
safety guard “up” so that he could watch the knot as it moved through the two rollers.
{¶10} Due to a problem with the wire, slack developed, and the wire was no
longer moving between the two rollers. After fixing the problem with the spool, Richard
tried to re-position the moving wire between the rollers by pushing down on the wire.
When his first attempt failed, he placed his left hand behind the rollers, in the area of the
caterpuller between the rollers and the conveyor belts, and again tried to push down on
the wire. As he did so, his left hand got caught on the moving wire and was pulled into
the narrow pinchpoint between the moving conveyor belts.
{¶11} Richard sustained serious injury to his left hand, including three broken
fingers. While receiving treatment at a local hospital, he gave a statement regarding the
incident to appellee’s human resource administrator. His statement resulted in a written
report, spurring an internal investigation into the matter by appellee. As a direct result,
the character of the guard was changed to a transparent material allowing the operator
to see the wire going into the caterpuller even with the guard down.
{¶12} While recovering from his injury, Richard filed a complaint concerning the
incident with OSHA. Upon conducting an on-site inspection of the BY1 machine, OSHA
4 issued a report finding multiple safety violations. As to the caterpuller, the report found
that appellee had not placed adequate safety guards in the area around the rollers and
conveyor belts. Therefore, appellee was fined and required to take additional remedial
measures.
{¶13} Within two months of his injury, Richard returned to work on light duty. A
short time later, he returned to regular duty as a machine operator. However, on April
4, 2012, Richard’s cell phone was found in a desk near his work area. The cell phone
was confiscated without his knowledge, and he was told to report to appellee’s director
of human resources. When confronted with the phone, Richard admitted that it was his,
and executed a written verification that his phone was found inside the factory premises.
His employment was terminated.
{¶14} Within six months of termination, Richard and his wife, appellants, filed the
underlying civil action against appellee. In addition to a claim for loss of consortium,
their complaint asserts claims for intentional tort under R.C. 2745.01 and for wrongful
discharge in violation of public policy. In relation to the wrongful discharge claim, their
complaint made no reference to the whistleblower statute under R.C. 4113.52; instead,
only a common law cause of action was raised.
{¶15} Following lengthy discovery, appellee moved for summary judgment on
the entire complaint. As to the intentional tort claim, appellee contended that the
undisputed facts support the conclusion that it did not act with a deliberate intent to
injure Richard. The motion stressed that the injury took place while the safety guard
was not in the proper position, that Richard had been instructed to always run the BY1
machine with the safety guard down, and that no other employee had been injured on
5 the machine in over twenty-five years. Concerning the wrongful discharge claim,
appellee argued that appellants could not establish that the termination was in
retaliation for the filing of the OHSA complaint because the company had a legitimate
business reason to fire Richard, violation of its cell phone policy. In support, appellee
established that twelve other employees had previously been fired for the same reason.
{¶16} In response to appellee’s motion, appellants maintain that, under R.C.
2745.01(A) & (B), summary judgment on the intentional tort claim is improper because
of a substantial certainty that a person would suffer an injury while operating the BY1
machine. In advancing substantial certainty, they submitted the affidavit of Michael
Adams, a professor of mechanical engineering and a safety expert. Adams opined that
the injury to Richard was a substantial certainty because: (1) there were inadequate
safety guards near the “pinchpoint” where the two conveyor belts come together inside
the caterpuller; (2) Richard did not receive adequate training; and (3) the work
environment was too pressurized due to the emphasis placed upon productivity. As to
the wrongful discharge claim, appellants asserted that a jury could find that the cell
phone violation was pretextual because his supervisor had seen his cell phone inside
the factory on prior occasions, and nothing had ever been done about it until after he
filed his OSHA complaint.
{¶17} In granting summary judgment in favor of appellee on all pending claims,
the trial court first held that appellants could not satisfy the statutory standard for an
intentional tort because they did not present any evidence that appellee knowingly
allowed him to operate the BY1 machine with the safety guard in the “up” position.
Second, the court concluded that appellants could not prevail on the wrongful discharge
6 claim because they could not contradict appellee’s evidence that twelve other
employees were previously discharged for violating the company’s cell phone policy.
{¶18} On appeal from this decision, appellants state two assignments of error:
{¶19} “[1.] The trial court erred when it granted defendant/appellee’s motion for
summary judgment dismissing Count I, employer’s intentional tort, of plaintiffs’
complaint holding there was no factual issue to be decided by a jury.
{¶20} “[2.] The trial court erred when it granted defendant/appellee’s motion for
summary judgment dismissing Count II, retaliatory discharge, of plaintiffs’ complaint
holding there were no factual issues for the jury to decide.”
{¶21} Under their first assignment, appellants raise a legal issue concerning the
proper interpretation of R.C. 2745.01, governing employer civil liability for an intentional
tort. Appellants contend the statute provides two alternate ways to establish intentional
tort: (1) an intent to injure; or (2) the existence of a substantial certainty that an injury
would occur.
{¶22} Relevant to discussion, R.C. 2745.01 states:
{¶23} “(A) In an action brought against an employer by an employee, or by the
dependent survivors of a deceased employee, for damages resulting from an intentional
tort committed by the employer during the course of employment, the employer shall not
be liable unless the plaintiff proves that the employer committed the tortious act with the
intent to injure another or with the belief that the injury was substantially certain to
occur.
{¶24} “(B) As used in this section, ‘substantially certain’ means that an employer
acts with deliberate intent to cause an employee to suffer an injury, a disease, a
7 condition, or death.”
{¶25} In support of this argument, appellants theorize that if an employee
demonstrates that the underlying injury was substantially certain to occur, subsection
(B) allows a jury to infer that the employer acted with a deliberate intent. Appellants
further submit that the proper interpretation of the “substantially certain” language is still
a question of first impression not yet addressed by the Supreme Court of Ohio.
{¶26} The Supreme Court, however, has expressly held that R.C. 2745.01 sets
forth but one way to establish an intentional tort. In Kaminski v. Metal & Wire Prods.
Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, the appellate court held
that proof of an intent to cause injury was the sole means of demonstrating an
intentional tort. On review, the Supreme Court began its analysis by quoting the
appellate decision:
{¶27} “‘“Intent to injure” is clear and, therefore, is not defined in the statute.
“Substantially certain,” however, is not as clear. Therefore, the legislature provided a
definition. R.C. 2745.01(B) defines “substantially certain” as acting “with deliberate
intent to cause an employee to suffer an injury, a disease, a condition, or death.”’
{¶28} “‘When we consider the definition of “substantial certainty,” it becomes
apparent that an employee does not have two ways to prove an intentional tort as R.C.
2745.01(A) suggests. The employee’s two options of proof become: (1) the employer
acted with intent to injure or (2) the employer acted with deliberate intent to injure.
Thus, under R.C. 2745.01, the only way an employee can recover is if the employer
acted with the in intent to cause injury.’ Kaminski, 175 Ohio App.3d 227, 2008-Ohio-
1521, 886 N.E.2d 262, ¶[30-31].
8 {¶29} “As an initial matter, we agree with the court of appeals that the General
Assembly’s intent in enacting R.C. 2745.01, as expressed particularly in 2745.01(B), is
to permit recovery for employer intentional torts only when an employer acts with
specific intent to cause an injury, subject to subsections (C) and (D). See Talik v. Fed.
Marine Terminals, Inc., 117 Ohio St.3d 496, 2008-Ohio-937, 885 N.E.2d 204, ¶17 (the
General Assembly in R.C. 2745.01 ‘modified the common-law definition of an employer
intentional tort’ by rejecting ‘the notion that acting with a belief that injury is substantially
certain to occur is analogous to wanton misconduct’). See also Stetter [v. R.J. Corman
Derailment Servs., L.C.C.], 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, at
paragraph three of the syllabus, in which we hold that R.C. 2745.01 does not eliminate
the common-law cause of action for an employer intentional tort.” Id. at ¶54-56.
{¶30} Kaminski was restated and followed by the Supreme Court in Cincinnati
Ins. Co. v. DTJ Enters,, 143 Ohio St.3d 197, 2015-Ohio-843, 36 N.E.3d 122, ¶10.
{¶31} In this case, appellants do not attempt to argue that the averments in Dr.
Adams’s affidavit are sufficient to establish that appellee acted with deliberate intent to
cause the injury to Richard’s hand. Instead, they maintain that the averments tend to
show that the injury was substantially certain to occur. Given actual intent is required,
appellants’ argument fails since Adams’s averments and are, at best, only sufficient to
establish wanton misconduct by an employer, not intent. Wright v. Mar-Bal Inc., 11th
Dist. Geauga No. 2012-G-3112, 2013-Ohio-5647, ¶28, (inadequate training and the lack
of adequate safety guards are insufficient to show a deliberate intent to cause an injury).
{¶32} As the trial court correctly granted summary judgment, appellants’ first
assignment lacks merit.
9 {¶33} Under their second assignment, appellants argue that summary judgment
should not have been granted on the wrongful discharge claim because their evidentiary
materials create an issue of fact as to whether appellee violated R.C. 4113.52, the
whistleblower statute. They assert that, since there is no dispute that he was fired
shortly after filing a complaint with OSHA, a jury could infer that his employment was
terminated for that reason rather than the pretextual firing for violating the cell phone
policy.
{¶34} Appellants’ entire argument at the appellate level is based upon the
underlying assertion that the wrongful discharge claim was predicated upon a violation
of the whistleblower statute. But this argument was not advanced before the trial court.
The allegations in their complaint expressly state that they are maintaining a common-
law claim of wrongful discharge in violation of public policy. Moreover, appellants did
not move the trial court for leave to amend the wrongful discharge claim.
{¶35} In their response to the motion for summary judgment, appellants made
reference to the whistleblower statute. However, the reference was only for the purpose
of establishing the existence of a public policy protecting an employee from retaliation
for filing an OSHA complaint. Appellants did not attempt to show that they could satisfy
the elements for a claim under R.C. 4113.52. Thus, they are foreclosed from now
asserting that they should have been permitted to proceed on the wrongful statutory
discharge claim.
{¶36} Given that appellants alleged that Richard was fired as a direct result of
his decision to file an OHSA complaint, they could have gone forward under the
whistleblower statute. R.C. 4113.52(B) forbids an employer from taking retaliatory
10 action against an employee who files a report regarding a possible violation of a state or
federal statute that is likely to cause an imminent risk of physical harm to a person or
the public. Nevertheless, R.C. 4113.52 does not preclude them from proceeding on a
common law wrongful discharge claim in violation of public policy. An employee can
still bring the common-law claim “if he can identify a source of public policy separate
from the public policy embodied in R.C. 4113.52.” Doody v. Centerior Energy Corp.,
137 Ohio App.3d 673, 679, 739 N.E.2d 851 (11th Dist.2000), citing Kulch v. Structural
Fibers, Inc., 78 Ohio St.3d 134, 162, 677 N.E.2d 308 (1997).
{¶37} To prevail on a claim for wrongful discharge in violation of public policy,
the plaintiff must prove: “‘“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 element). 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
justification for the dismissal (the overriding justification element).” (Emphasis sic.)’”
Doody, 137 Ohio App.3d at 680, quoting Painter v. Graley, 70 Ohio St.3d 377, 639
N.E.2d 51 (1994), fn. 8.
{¶38} In discussing appellants’ wrongful discharge claim, the trial court did not
expressly refer to any of the four elements. Rather, the court only held that summary
judgment was appropriate because appellants were unable to refute the fact that
appellee had previously terminated twelve employees for the same reason Richard was
fired: i.e., violation of the company’s “no cell phone” policy. Given this, it is clear the trial
11 court concluded that appellants failed to satisfy the overriding justification element.
{¶39} In relation to such, as in discrimination cases, a burden shifting frame
work is followed. Sells v. Holiday Mgmt., 10th Dist. Franklin No. 11AP-205, 2011-Ohio-
5974, ¶21-22, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This
framework has three steps: (1) the plaintiff must first establish a prima facie case,
creating a presumption that the discharge was improper; (2) the burden of production
then shifts to the defendant to present evidence of an overriding legitimate business
justification for its actions; and (3) if the defendant carries its burden, the presumption
no longer applies and the plaintiff has the final burden of proving that the defendant’s
justification was just a pretext for its decision to terminate. Id.
{¶40} In this case, there is no dispute that Richard was terminated within two
months of the filing of his OHSA complaint; therefore, appellants established a prima
facie case that the discharge was improper. Appellee, however, carried its burden of
demonstrating an overriding legitimate business justification for the termination. There
is no dispute that Richard was informed of the cell phone policy when he was hired, that
he admitted that he had his cell phone inside the factory, and that appellee had
previously enforced the policy by firing twelve other employees. Therefore, the question
becomes whether appellants presented any evidence showing that appellee’s reliance
upon the cell phone policy was a pretext.
{¶41} In support of their pretext argument, appellants assert that Richard
previously brought his cell phone into the factory, and that his immediate supervisor was
aware. In deposition, Richard testified that his immediate supervisor had used his cell
phone to time the speed of another machine. However, there is no evidence his
12 immediate supervisor had the authority to fire him for the cell phone violation. More
importantly, there is no evidence that anyone with the authority to terminate Richard’s
employment was aware of his prior violations and chose not to enforce the company’s
policy. Thus, appellants’ evidence was not sufficient to establish a pretext.
{¶42} Based on the foregoing, appellant’s second assignment is without merit
and the judgment of the trial court is affirmed.
DIANE V. GRENDELL, J.,
TIMOTHY P. CANNON, J.,
concur.