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Reichenbach v. TTW-NIFCO9/21/2000
is pretextual and that the real reason for the discharge was retaliation against the employee for engaging in protected activity under the Ohio Workers' Compensation Act. Ward v. (NAPA) Genuine Parts Co. (Mar. 15, 1990), Franklin App. No. 89AP-1061, unreported; Kilbarger v. Anchor Hocking Glass Co. (1997), 120 Ohio App.3d 332, 338.
With respect to appellant's contention that summary judgment was improperly granted, Civ.R. 56(C) states that summary judgment shall be granted forthwith if:
* he pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. *
Accordingly, summary judgment is appropriate only where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 629, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 65-66. " he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record * which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. Once the moving party meets its initial burden, the non-movant must then produce competent evidence showing that there is a genuine issue for trial. Id.
Appellate review of summary judgments is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588; Midwest Specialties, Inc. v. Firestone Tire & Rubber Co. (1988), 42 Ohio App.3d 6, 8. Accordingly, we stand in the shoes of the trial court and conduct an independent review of the record. The issue for this court, therefore, is whether there is a genuine issue of material fact as to whether the legitimate nondiscriminatory reason for appellant's termination proffered by appellee is pretextual.
In the present case, appellee's summary judgment motion was premised on the claim that appellant's termination was due to continued and repeated insubordination, confrontational, harassing, and threatening behavior towards supervision. According to appellees, appellant's confrontational behavior on February 20, 1997 was the event that precipitated his termination.
Appellant argues a genuine issue of material fact exists as to whether his behavior was confrontational, harassing, or threatening. Appellant points to the transcript of the tape-recorded conversation between him and DeBruin, as evidence that there was no confrontation, no harassment, and no threats. Appellant also stated in his affidavit that " ontrary to my employer's suggestion, I did not behave in an inappropriate manner. * I believe that the employer's suggestion that I yelled at my supervisor is a pretext and that I was terminated in retaliation for filing a workers' compensation claim eight days earlier." (Appellant's affidavit at paragraph 5.)
Unfortunately for appellant, the written transcript of the tape-recorded conversation does not provide any evidence on the issue of whether appellant was shouting at his supervisor on February 20, 1997. Nor does appellant's affidavit set forth any facts to refute appellee's evidence that appellant shouted at his supervisor
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