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Markham v. Earle M. Jorgensen Co.8/17/2000
JUDGMENT AFFIRMED.
Plaintiff-appellant herein, Brian Markham, appeals from the entry of summary judgment by the trial court in favor of the defendant-appellee, Earle M. Jorgensen, Co., on appellant's claims for unlawful retaliatory discharge under R.C. 4123.90 and illegal handicap discrimination under R.C. 4112.02. Because we find that the uncontroverted evidence before the trial court demonstrated that the appellant was terminated for reasons not relating to his application for workers' compensation benefits and because the appellant's handicap discrimination case was deficient as a matter of law, we affirm the trial court's grant of summary judgment in favor of the appellee.
The appellant began work at the appellee's operations sometime in or about March of 1994 as a warehouseman. During his tenure working at the appellee's plant, the appellant's job title was reclassified from warehouseman to welder and then to saw/machine operator. Each change in job classification constituted a promotion with a corresponding raise in pay.
According to the appellant's own deposition testimony, he had filed a couple of workers' compensation claims prior to the claim for which he now alleges caused his unlawful retaliatory termination. On or about June 26, 1997, the appellant injured his shoulder when he attempted to pick up one end of an eighteen foot long, 180 pound bar. The injury was diagnosed as a shoulder strain. The appellant promptly applied for workers' compensation benefits as a result of this injury.
The appellant was issued a patient work update by his treating physician on July 30, 1997 which stated that as of that date the appellant was cleared to return to work, but was to refrain from lifting with his right arm until his next visit or August 20, 1997. Pursuant to a light duty work program adopted by the appellee in April of 1997, with the consent of the union which represented appellant, the appellant was offered light duty work assignments consistent with the limitations issued by his doctor during the period of rehabilitation.
appellant did return to work after being cleared by hiThe treating physician, but consistently either refused to perform the light duty requested or would leave work early after complaining that the activity aggravated his shoulder condition.
The appellant also failed to return to work after his physical therapy appointments on different occasions because he felt that he was in too much pain from his therapy treatments to perform even the light duty work assignments requested of him. The light duty assignments initially proposed by the appellee included filing papers in an office, light maintenance in the warehouse and painting and spackling the outside front of the building. The appellant stated in writing in response to the proposal that he would only agree to perform the filing duties, but would advise as to whether he could perform the other duties after consulting doctor.
On September 12, 1997, the appellant's supervisor requested that he pick up debris from the company parking lot as the appellant was still not medically cleared to return to his position as a machine operator. After twenty-five minutes of picking up litter, the appellant told his supervisor that his right arm was hurting him and that he was going home and that if anyone had any questions concerning his early departure, they could contact his lawyer. The appellant stated in his deposition that he left early on at least two other occasions after being asked to clean up debris in the parking lot. In his appellate brief filed with this court, the appellant states that he was insulted and humiliated by the request that h
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