Creveling v. Lakepark Indus., Inc.

169 N.E.3d 21

Bradd CREVELING, et al., Appellants

v.LAKEPARK INDUSTRIES, INC., et al., Appellees

No. H-20-013

Court of Appeals of Ohio, Sixth District, Huron County.

Decided: March 12, 2021

Daniel S. Dubow, for appellants.

Mark S. Barnes and Carl Habekost, Toledo, for appellees.

DECISION AND JUDGMENT

DUHART, J.

{¶ 1} This case is before the court on appeal by appellants, Bradd Creveling ("appellant") and Tracey Creveling, from the July 2, 2020 judgment of the Huron County Court of Common Pleas, granting summary judgment in favor of appellees, Lakepark Industries, Inc. ("Lakepark"), Midway Products Group, Inc. ("Midway"), Kent Downing ("Downing"), and Jeff Baldridge ("Baldridge"). For the reasons that follow, we affirm.

{¶ 2} Appellants set forth five assignments of error:

I. The trial court committed reversible error by determining that no genuine issue of material facts remained as to Creveling's claim for workers’ compensation retaliation.

II. The trial court committed reversible error by determining that no genuine issue of material facts remained as to Creveling's claim for disability discrimination.

III. The trial court committed reversible error by determining that no genuine issue of material facts remained as to Creveling's claim for public policy wrongful termination.

IV. The trial court committed reversible error by determining that no genuine issue of material facts remained as to Creveling's claim for employer intentional tort.

V. The trial court committed reversible error by determining that no genuine issue of material facts remained as to Tracey Creveling's claim for loss of consortium.

Background

{¶ 3} On September 12, 2018, appellants filed their complaint against appellees, which included claims for workers’ compensation retaliation under R.C. 4123.90, disability discrimination in violation of R.C. 4112.02, wrongful termination in violation of public policy, employer intentional tort, and loss of consortium.

{¶ 4} On January 23, 2020, appellees filed their motion for summary judgment. On July 2, 2020, the trial court granted summary judgment in appellees’ favor as to all claims in appellants’ complaint.

Statement of Facts

{¶ 5} Appellant began employment at Lakepark, as a tool and die maker, on February 25, 2008. Lakepark subsequently laid off appellant, for economic reasons, on or about August 11, 2010. On or about October 4, 2010, Lakepark recalled appellant to resume working as a tool and die maker. Prior to his employment with Lakepark, appellant was a skilled tool and die maker with over three decades of experience.

{¶ 6} Upon appellant's initial hire at Lakepark, appellant received new employee orientation, which involved, among other things, a review of Lakepark's policies, procedures, and safety training. Over the course of his employment at Lakepark, appellant received and reviewed several copies of Lakepark's employee handbook. Appellant signed acknowledgements of receipt of the handbook on February 25, 2008 and on February 10, 2011. Included in the handbook are general safety provisions. In addition to these provisions, Lakepark provided safety training, both during orientation and periodically throughout the year.

{¶ 7} During his orientation, appellant watched various safety training videos, including Safety for Dummies, Right to Know, and Lockout/Tagout for Effective Personnel. After watching the safety videos, appellant completed a series of comprehensive safety tests covering the content of the videos. Among the topics addressed in the training was personal protection training ("PPE training"), which provided that wearing gloves while operating rotating equipment was not permitted. Appellant's test answers demonstrated that he understood not to wear gloves while operating rotating equipment, and appellant testified that he understood his answers to be the correct answers. After successfully completing the assigned safety tests, appellant signed an acknowledgment stating that he received safety orientation training, understood the safety training and Lakepark's safety requirements, and agreed to abide by the requirements.

{¶ 8} Throughout his career at Lakepark, appellant received additional, ongoing safety training, which, from time to time, included PPE training. Regarding the use of PPE on rotating equipment, Lakepark's training materials provided that, although certain tight-fitting gloves could be worn (for cut protection), it was strongly preferred that no gloves should be worn. The training materials further, and specifically, provided that Kevlar gloves, which are a cut-resistant cloth-like glove, were never to be worn on rotating equipment.

{¶ 9} In spite of these warnings, appellant testified that from the time of his hiring until September 13, 2016, he routinely wore Kevlar gloves while he was operating rotating equipment, including rotating machines known as the Bridgeport vertical milling machine (the "Bridgeport") and the profiler machine.

{¶ 10} On September 13, 2016, appellant sustained an injury to his right hand while operating a Bridgeport. The Bridgeport is a piece of rotating equipment that is used to drill and cut into steel. Prior to September 13, the Bridgeport remained in its original unmodified condition without any sort of "guarding." A safety placard located on the face of the Bridgeport directed operators not to wear gloves while operating the machine.

{¶ 11} At the time of appellant's accident, appellant was wearing Kevlar gloves while operating the Bridgeport and drilling a set of holes into a steel block. According to appellant, metal chips from the steel block wrapped around his glove, pulling his right hand into the rotating drill and mangling his hand. Appellant further states that he attempted to stop the machine by hitting the E-Stop button, but the E-Stop button fell off. He then attempted to stop the machine by hitting the brake, but this did not stop the rotating bit. Finally, appellant states, he was able to re-thread the E-Stop button and stop the machine.

{¶ 12} Directly following appellant's accident, Human Resource Manager John Curtis ("Curtis") transported appellant to the hospital. According to deposition testimony by Curtis, appellant, on the drive to the hospital, admitted that he "screwed up" and that he "knew better than to wear gloves" while operating the Bridgeport. As a result of the injury, appellant sustained an amputation of his right middle finger.

{¶ 13} Appellant did not return to work for several months. Immediately following the injury, appellant received treatment at the emergency room. Thereafter, he underwent surgeries to his right hand, including a transposition procedure, which completely removed his middle finger and moved his ring finger to the center of his hand.

{¶ 14} Because appellant's injury involved an amputation, the injury constituted a recordable event under the Occupational Safety and Health Act ("OSHA"). Accordingly, Lakepark reported appellant's injury to OSHA and, as a result, OSHA investigated the incident. During an informal conference on November 29, 2016, OSHA and Lakepark reached a compromise in which Lakepark agreed to a citation for violation of PPE. As part of OSHA's and Lakepark's compromise and agreement, Lakepark placed a plexiglass shield on the Bridgeport machine.

{¶ 15} Appellant never made a formal complaint to OSHA about the workplace accident or the operation of the milling machine. During the OSHA investigation, an OSHA investigator called appellant to discuss the accident and the nature of appellant's injury involving the Bridgeport. Lakepark maintains that it was not aware of the discussion between appellant and the OSHA investigator at the time the discussion occurred, although Lakepark had, in fact, provided appellant's address and phone number to the OSHA investigator.

{¶ 16} On September 13, 2016, Lakepark filed a workers’ compensation claim on appellant's behalf. From September 14, 2016 to April 24, 2017, appellant missed work while he recovered from his injuries. Appellant received compensation and medical benefits from the Bureau of Workers’ Compensation throughout the period of his convalescence. Lakepark never disputed or contested any aspect of appellant's claim.

{¶ 17} During appellant's absence from work, Lakepark investigated the circumstances that gave rise to appellant's injury and determined that appellant had violated gross misconduct rule #10 of Lakepark's code of conduct, addressing "any conduct that can be construed as seriously threatening the safety and welfare of any Team Member," and, further, had violated the policy against wearing Kevlar gloves while operating rotating equipment.

{¶ 18} On April 24, 2017, Lakepark arranged a meeting with appellant and several members of management, including appellees Downing and Baldridge, Mark Wireman ("Wireman"), and Steven Zagurskie ("Zagurskie"). During the meeting, Lakepark issued appellant a final written warning, memorialized in a document titled "Employee Corrective Action," together with a three-day suspension, for the violation. Appellant signed the written disciplinary document, which set forth the prescribed corrective action as follows:

Follow all PPE and safety requirements at all times. In this case, do not wear gloves while operating rotating equipment. * * * Any further violation * * * will result in termination of employment.

Appellant did not object to or dispute the factual allegations contained in the corrective action. In subsequent deposition testimony, appellant provided that at the time he signed the corrective action, his understanding was that he was not to "run the milling machine with the Kevlar gloves on anymore."

{¶ 19} Appellant served his three-day suspension, and on May 1, 2017, he returned to work on light duty. Appellant did not want to work in the light-duty position, however, and immediately inquired as to how he could return to the tool and die maker position. Lakepark advised that he would need a full...