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Kilbarger v. Anchor Hocking Glass Co.12/14/1995
GWIN, Presiding Judge.
Plaintiff Mark L. Kilbarger appeals a summary judgment of the Court of Common Pleas of Fairfield County, Ohio, entered in favor of defendant Anchor Hocking Glass Company on Kilbarger's complaint for retaliatory discharge brought under R.C. 4123.90. Appellant assigns two errors:
"I. The trial court committed error in granting the appellee's motion for summary judgment on the basis that the issue of retaliatory discharge had previously been litigated.
"II. An employer may not terminate an employee for fraud and falsification of records based on a jury verdict that the employee is not entitled to participate in the workers' compensation fund in view of O.R.C. 4123.90."
Appellant's statement pursuant to Loc.R. 4(D) alleges the judgment is inappropriate on the undisputed facts of the case.
The second assignment of error does not ascribe error to the trial court, but rather is a proposed statement of law. We will treat Assignments of Error Nos. I and II together for purposes of this opinion.
The parties agree on the following facts. In late June 1991, appellee began its summer shutdown as it normally did. During the three weeks the plant was closed, appellant painted his home, his father's home, and a third home. The plant was reopened on July 15, 1991, and on July 17, 1991, appellant reported tsthe company he had injured his shoulder and upper arm while moving a heavy bucket of material. Ordinarily, the buckets are moved by a machine, but in this case the machine had broken and appellant was moving the material by hand. Appellant filed a workers' compensation claim requesting benefits.
Appellee's safety manager learned that appellant's former girlfriend had alleged that the injury actually occurred during the shutdown while appellant was engaged in house painting, rather than at work with Anchor Hocking. Anchor Hocking challenged appellant's claim for workers' compensation and the cause was eventually tried to a jury in Common Pleas Court. At trial, appellant's former girlfriend testified that appellant told her that he had hurt his neck and back painting. She testified he told her he would tell appellee that he had "hurt himself with buckets" so he could received workers' compensation. The jury returned a verdict that appellant was not entitled to workers' compensation benefits, but the jury verdict was not tested with interrogatories.
Appellant had taken vacation time for the workers' compensation trial. When he returned to work, he was placed on a seven-day suspension. Thereafter, appellee terminated appellant for falsification of records with intent to defraud. Appellant eventually brought this action, alleging appellee had wrongfully discharged him in retaliation for filing his workers' compensation claim.
Civ.R. 56(C) states in pertinent part:
"Summary judgment shall be rendered forthwith if the pleading, depositions, answer 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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strong
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