[Cite as Long v KeltanBW, Inc. , 2024

- Ohio

- 2359.]
COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

NI’JAH LONG
, :

Plaintiff

- Appell ant , : No. 11 2 9 1 9
v. :
KELTANBW, INC. , :

Defendant

- Appe l l ee

. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 20, 2024

C ivil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV

- 22

- 961143

Appearances:
Voudris Law LLC and Stephan I. Voudris, for appellant

. Roetzel & Andress LPA, Barry Y. Freeman , and Danielle C. Young, for appellee.

EMANUELLA D. GROVES , J.:

Plaintiff

- a ppellant Ni’Jah Long (“Long”) appeals the judgment of the
trial court granting defendant

- appellee KeltanBW Inc.’s (“KeltanBW”) motion for
summary judgment on May 29, 2023. Upon review, we affirm the trial court’s

decision.Factual and Procedural History
KeltanBW owns and operates a daycare center , Goddard School of

Beachwood (“GSB”), in Beachwood, Ohio. Long began working as a floating
assistant teacher at the daycare center on June 8, 2021. Long worked until July 1,

2021, before taking time off to travel to the Dominican Republic for liposuction

surgery

. At some point before July 1, 2021
, Long asked for and was granted time off
to care for her fiancé’s father while he was recovering from COVID

- 19. Long
returned to work on August 24, 2021
, with restric tions on lifting due to her surgery,

no more than ten pounds for three months beginning July 19, 2021. KeltanBW
assigned Long to the preschool rooms because of the lifting limit. On September

16, 2021 , Long took time off to care for her fiancé who was recovering from surgery.
The following week Long was late between one to four hours on the days she was
assigned.

The center was short

- staffed on October 4 when Long arrived for
work. Long was assigned to the infant room. As she bent over to pick up an infant,
Long heard a popping sound and realized she had injured her back. On October 5,
2021, Long informed KeltanBW that she had injured her back while bending over to

lift an infant the day before and would not return to work until October 11, 2021.
Long was terminated on October 9, 2021. KeltanBW alleged the termination was
due to poor attendance.

On March 24, 2022, Long filed a complaint against KeltanBW and

claimed workers’ compensation retaliation (Count 1); wrongful discharge inviolation of public policy, under R.C. 4123.90 (Count 2); and negligent training and

supervision under R.C. 4112.02(J) (Count 3) . On July 1, 2022, Long amended her
complaint to include disability discrimination (Count 4) . KeltanBW answered the
amended complaint on July 6, 2022.

KeltanBW moved for summary judgment and partial judgment on the
pleadings on January 23, 2023. The motion for summary judgment was based on
the following:

1. Long’s wrongful discharge in violation of public policy claim is barred by the parties’ stipulation that R.C. 4123.90 controls.

2. Long lacks a prima facie disability discrimination claim.

3. Long was terminated for poor attendance and tardiness; therefore, she cannot establish her disability discrimination and R.C. 4123.90 claims and she cannot demonstrate pretext.

4. Long’s negligent training and supervision claims fail on the merits and are preempted by statute.

5. Long’s economic damages are limited to the difference between her Goddard School of Beachwood earnings and what she could have earned at another Goddard school.
6. Long cannot recover emotional distress damages because they are all related to her work injury.

( M otion for s ummary j udgment, January 23, 2023).

Due to the parties’ stipulation, the trial court dismissed C ount 2 , the
public policy wrongful termination claim. Additionally, t he trial court granted
KeltanBW’s motion for summary judgment on May 29, 2023. Long timely appeals
the trial court’s judgment, raising one assignment of error for our review.Assignment of Error

The trial court erred in granting a ppellee’s motion for summary judgment because there were genuine issue s of material fact after viewing the facts in a light most favorable to the appellant.

Motion to Strike

As a preliminary matter, KeltanBW filed a motion to strike arguments
Long made on appeal that she did not raise before the trial court

. It is well settled
that new arguments and legal issues may not be raised for the first time on appeal,
and the failure to raise an issue in the trial court waives that issue for appellate

purposes

. Glendell

- Grant v. Grant , 2018

- Ohio

- 1094, ¶ 11 (8th Dist.)
, citing Cleveland Town Ctr., L.L.C. v. Fin. Exchange Co. of Ohio, Inc. , 2017

- Ohio

384, ¶ 21 (8th Dist.)
, and Kalish v. Trans World Airlines, Inc. , 50 Ohio St.2d 73,
(1977)

.
KeltanBW seeks to strike two claims Long raises on appeal, one that
she raises for the first time in her reply brief in this court and one that she did not

raise before the trial court

. Generally
, an appellate court will not consider an
argument presented for the first time in appellant’s reply brief

. State v. Whitaker
,

2022

- Ohio

- 2840, ¶ 52

. Therefore , Long’s first

- time argument in her reply brief that
there is a genuine issue of material fact regarding a purported safety rules violation

and causation are not properly before us

. Accordingly, we grant KeltanBW’s motion
to strike in part. Long’s argument that summary judgment should be reversed based
on safety rules violations and causation regarding the workplace injury is stricken

from the record and shall not be considered.W e now turn our review to KeltanBW’s claim that Long did not argue

she was perceived to have a disability or had a history of disability as a result of her
liposuction surgery before the trial court

.

A review of the trial court record reveals Long argued
contemporaneously that impairments related to liposuction and the October 4, 2021
workplace injury were the basis for her disability. Long continues these arguments
on appeal. Accordingly, the motion to strike the argument related to whether Long’s
cosmetic surgery was a basis for her disability is denied.

Consequently, we will consider whether KeltanBW established there

was no genuine issue of material fact concerning Long’s disability discrimination,
retaliation, negligent training, and supervision claims. Upon review, we find that
Long failed to produce evidence sufficient to create a genuine issue of material fact
regarding each claim in order to overcome the trial court’s summary judgment

decision

. Summary Judgment

Orders granting or denying motions for summary judgment are

reviewed de novo. Summary judgment is appropriate when (1) there is no genuine

issue of material fact, (2) reasonable minds can come to one conclusion when
construing the evidence in a light most favorable to the nonmoving party, and (3)

the moving party is entitled to judgment as a matter of law. Rowe v. Hoist & Crane

Serv. Group
, 2022

- Ohio

- 3130, ¶ 36 (8th Dist.). “Once the moving party

demonstrates entitlement to summary judgment, the burden s hifts to thenonmoving party to produce evidence related to any issue on which the party bears

the burden of production at trial .” Mattress Matters, Inc. v. Trunzo , 2016

- Ohio

7723, ¶ 10 (8th Dist.) ; Civ.R.56(E). The moving party must identify specific portions
of the record that demonstrate the absence of a genuine issue of fact on a material
element of the nonmoving party’s claim. Pavlick v. Cleveland Hts.

- Uni v. Hts. Bd.
of Edn ., 2015

- Ohio

- 179, ¶ 6 (8th Dist.) , citing Dresher v. Burt, 75 Ohio St.3d 280,
(1996)

. If the moving party meets its burden, the nonmoving party may not rest on
unsupported allegations and denials in the pleadings to defeat summary judgment

. Phillips v. Acacia on the Green Condo

. Assn. , 2021

- Ohio

- 4521, ¶ 16 (8th Dist.) ;

Dresher at 292

- 293

.
Prima Facia Case of Disability Discrimination

In a disability discrimination claim
, the employee bears the initial
burden of establishing by a preponderance of the evidence a prima facie case of
disability 1 discrimination. Hood v. Diamond Prods. , 74 Ohio St.3d 298, 302 (1996) ; Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm.
,
66 Ohio St.2d 192, 197 (1981)

. However, once the employee sets forth evidence of a prima facia case of disability, the burden shifts to the employer to offer a legitimate,
nondiscriminatory reason for its actio ns

. Id. A n employer is entitled to summary

1 Cases cited in this opinion use the word “handicap.” Effective March 17, 2000 the General Assembly replaced the word “handicap” with “disability” to reflect current usage

. The current version of R.C. 4112.02(A) maintains essentially the same definition of “unlawful discriminatory practices” as used in Hood

. See Continenza v. Tablack , 2003

- Ohio

- 6719, ¶ 20 (7th Dist.)

.judgment if i t demonstrate s the absence of genuine issues of fact concerning a

material element of the employee’s claims

. Id

.

An employee raising a disability discrimination claim under R.C.

4112.02 establishes a prima facia case when the employee demonstrates 1) they are
disabled, 2) the employer took adverse action against them
, in part , because of their
disability , and 3) they could safely and substantially perform the essential functions
of the job with or without reasonable accommodations. Id

. Ohio Adm. Code 4112

-

5

- 08(D)(4) and (E)

. “ A failure to establish all of the elements of a prima facie case
is fatal to a disability discrimination claim. ” Rongers v. Univ. Hosps. of Cleveland,

Inc ., 2009

- Ohio

- 2137, ¶ 9 (8th Dist.).
Surgery Recovery as a Basis of Disability

KeltanBW demonstrated that Long failed to establish a prima facia
claim of disability by showing she offered no evidence that her recovery from surgery
qualified as a disability. In support of her argument that she qualifies as a disabled

individual under all three definitions Long , alleged 1) she suffered from a physical
impairment that substantially limited one or more of her major life activities; 2) she
has demonstrated a record of physical or mental impairment; and 3) she has proven
that KeltanBW reg arded her as having a physical or mental impairment.
Substantially Limiting Impairment

Regarding the first statutory definition of “disabled,” Long must
establish that she suffered from an impairment that substantially limited her major

life activities. The term “substantial limitation” is not defined in R.C. Ch. 4112, butfederal regulations define it. Anderson v. AccuScripts Pharmacy, L.L.C. , 2022

-

Ohio

- 1663, ¶ 49 (8th Dist.); Bare v. Fed. Express Corp ., 886 F.Supp.2d 600, 609
(N.D. Ohio 2012), quoting R.C. 4112.01(A)(13). The determination of whether a
physical or mental impairment substantially limits a major life activity is dependent
upon “(i) the nature and severity of the impairment; (ii) the duration or expected
duration of the impairment; and (iii) the permanent or l ong

- term impact, or the
expected permanent or long

- term impact of or resulting from the impairment.”

Maracz v. UPS , 2004

- Ohio

- 6851, ¶ 34

- 36 (8th Dist.) ; 29 C.F.R. 1630. 2 (j)( 2 ). Major
life activities are described in R.C. 411 2.01(A)(13) and include caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working.
Long provided her surgeon’s note, which restricted her ability to lift
no more than ten pounds for three months, as proof of disability. “Whereas lifting
is generally considered a major life activity, the inability to lift over a certain weight

restrictio n is, in and of itself, not a disability .” Pavlick , 2015

- Ohio

- 179 , ¶ 12 (8th

Dist.) ; McClain v. Shaker Hts.
, 2011

- Ohio

- 4418, ¶ 16 (8th Dist.)
, citing Dunaway v.

Ford Motor Co. , 134 F ed. Appx

. 872, 877 (6th Cir. 2005)

.

After Long return ed to work, she provided KeltanBW with an

e mployee m edical s tatement for c hild c are completed by Dr. Michael Peterson

. He
examined Long on September 17, 2021. He documented no restrictions nor
impairments and acknowledged that Long was physically fit for employment in a
facility caring for children. Although Long provided evidence of a short

- termimpairment in her ability to lift no greater than ten pounds after surgery, she offered

no evidence of how the weight restriction substantially limited any of her major life

activities.
Evidence that Long sometimes sat down at work because she was
tired and out of breath arguably could be considered impairments. However,
demonstrating that an individual has a lifting restriction or some other impairment

alone is insufficient to establish that she is disabled. Id

. at ¶ 26

. The impairment
must substantially limit one or more major life activities. Long failed to produce

such evidence.
Record of Impairment

The second way that Long could demonstrate that she is a disabled

individual is by demonstrating a record of impairment under R.C 4112.0 1(A) (13).

Pavlick , 2015

- Ohio

- 179, at ¶ 21 ( 8th Dist.)

. A record of impairment is established
when the employee has a history of long

- term or permanent disability
, which would
qualify her as disabled under R.C. 4112.02

. Yamamoto v. Midwest Screw Prods
.,

2002

- Ohio

- 3362, ¶ 42 (11th Dist.)

. Addition ally, “ [t] he disability must meet the
statutory definition of being a substantial limitation on one or more major life

activities.” Id.
Long provided much of the same evidence she claimed established an
actual disability to demonstrate a record of impairment. As we have already stated,
the evidence Long presented was inadequate to establish that she suffered from an
actual disability. Furthermore, Long has not established a history of injuriessupporting a record of disability. “‘Mere references to previous instances of ill

health

. . . are not sufficient evidence of a record of impairment to establish true
disability status under R.C. 4112.02. ”’ Pavlick at ¶ 21 quoting Yamamoto at ¶ 43.

Long fails to demonstrate a record of disability

. Instead
, the record

reflects that the nature of any limitation s caused by Long’s claimed impairment s after surgery were minor and of short duration. She could still care for herself, work,
perform manual tasks, walk, see, hear, speak, and breathe , even though she was
tired and sat down sometimes at work. Long cared for herself and others during

that time. For instance, while under the weight restriction
, Long requested time off
to care for her fiancé after he underwent surgery

. Long has offered no evidence that
she suffered from any impairment s that substantially limited her major life activit ies

before the workplace injury. Accordingly, Long failed to demonstrate a record of
disability under the second statutory definition of “ disabled .”
Regarded as a Disabled Individual

The third qualifying manner Long may prove she is a disabled

individual is by establishing that KeltanBW regarded her as h aving a disability under

R.C. 4112.02(A). Long claims KeltanBW’s willingness to accommodate her weight

lifting restriction proves she was regarded as having a disability. We find Long’s

argument lacks merit

.

Long offered evidence that KeltanBW accommodated her temporary
weight

- lifting restriction by assigning her to classrooms that did not require Long to

lift babies while recovering from surgery. Long’s physician’s note stated that thelifting restriction was ten pounds for only three months. Furthermore, even if the

lifting limit was considered an impairment, Long failed to present evidence that the
impairment was significant or expected to last longer than six months.

When an injury is transitory and minor, the third qualifying meaning

of a disabled individual, whereby the employer regards the employee as disabled, is
inapplicable. Thomas v. PNC Bank N.A. , 2018

- Ohio

- 4000 , a t ¶ 12 (8th Dist.). “ A
transitory impairment is an impairment with an actual or expected duration of six

months or less .” Id

. at ¶ 7 ; 42 U.S.C. 12102(3)(B)

. The record contains evidence that

the restrictions on lifting were expected to last for three months. W e find that Long’s

three

- month weight

- lifting restriction after liposuction surgery was transitory and

minor

.
T here is no evidence that KeltanBW’s accommodation was intended

to be permanent. The record supports the opposite conclusion. Two months post

surgery, Long presented KeltanBW with an e mployee m edical s tatement for

c hild c are after she was examined on September 17, 2021. ( Long d ep osition E x hibit

M

- 4)

. Long’s physician, Dr. Michael Peterson, did not indicate that Long had any

substantial impairments. Despite Long’s three

- month weight

- lifting restriction, her
physician indicated she was physically fit for employment in a facility caring for

children. Long has not demonstrated that her alleged impairments impacted one or

more major life activities or that the duration of her recovery was expected to be six

months or more. The record contains no evidence that KeltanBW regarded Long asdisabled for purposes of R.C. 4112.02 (A)

. Consequently, the third qualifying

meaning of disability for purposes of R.C. 4112.02 is inapplicable to these facts.

KeltanBW demonstrated its entitlement to summary judgment
regarding Long’s claim tha t she was disabled before her workplace injury because of
liposuction surgery. Long has failed to point to evidence that would overcome

KeltanBW’s argument that Long failed to demonstrate a prima facia case that she
was disabled under any of the three statutory definitions of a “ disabled individual.”
Accordingly, KeltanBW’s motion for summary judgment was properly granted
regarding Long’s disability discrimination claims related to her liposuction surgery

and before her workplace injury.
Workplace Injury as a B asis for Disability Discrimination Claim

We now turn to Long’s workplace injury

. Since Long must satisfy all
three prima facia elements for a disability discrimination claim, we will focus on the

third element
, i

. e. , ability to substantially perform. On October 4, 2021
, Long
injured her back while bending to lift a child. The next day, Long went to her doctor
,
Dr. Michael Peterson for treatment. Additionally, Long saw Dr. Jessica Dilley on
October 13, 2021
, and Dr. Robert Whitehead, M

. D

. , on November 8, 2021.

Long was diagnosed with muscle, fascia, and tendon strain of her
lower back’s thoracic and lumbar regions. Long was not released to return to work
for six days because she was temporarily and totally disabled during that time.

The third prong requires L ong to demonstrate that , although
disabled, she could safely and substantially perform the job’s essential functionswith or without reasonable accommodations. “ Regular attendance and ability to

perform the work are an essential function of any position.” Coco v. Beyesly ’ s

Restaurant , 2021

- Ohio

- 4201, ¶ 18 (5th Dist.). Long’s treating physician completed
the necessary paperwork indicating that she was temporarily, totally disabled, and

unable to work at all, from October 5

- 11, 2021.

Therefore, Long could not demonstrate a genuine issue of material

fact concerning her ability to work after her workplace injury

. Accordingly
,

summary judgment was proper concerning Long’s disability discrimination claims.
Workers’ Compensation Retaliation

Long also claim s that summary judgment was improper on her

workers’ compensation retaliation claim

. Here, KeltanBW claims summary judgment was proper because Long was terminated because of her poor attendance
and excessive tardiness, not in retaliation for filing a workers’ compensation claim

.

A n employe r has committed workers’ compensation retaliation under

R.C. 4123.90 if the employer discharged , demoted, reassigned, or took any other
punitive action against the employee in retaliation for the employee filing

a workers ’ compensation claim or instituting, pursuing, or testifying in any proceedings under the Workers ’ Compensation Act

. Onderko v. Sierra Lobo, Inc. ,
2016

- Ohio

- 5027, ¶ 27.

An employee demonstrates a prima facia case of workers ’
compensation retaliation under R.C. 4123.90 by establishing 1) that the employee
was injured on the job
, 2) the employee filed a claim for workers’ compensationbenefits
, and 3) that the employee was discharged in violation of R.C. 4123.90

Dragmen v. Swagelok Co. , 2014

- Ohio

- 5345, ¶ 18 (8th Dist.). Once the employee
establishes each element of a prima facie case of retaliation, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for terminating the
employee. Id

.
In this case , KeltanBW admitted that Long suffered a workplace
injury and filed a workers’ compensation claim. KeltanBW also acknowledged
terminating Long

. Therefore, the first two prongs of a prima facia claim of workers’
compensation retaliation are met

. Arguably, the third prong was also met because
KeltanBW terminated Long shortly after she filed her workers ’ compensation claim.

However, KeltanBW clai ms the termination was due to poor attendance and

excessive tardiness , not because Long pursued a workers ’ compensation claim

. In
support of their argument, KeltanBW offered Long’s time sheets, several text
messages, and deposition testimony to demonstrate that during Long’s brief
employment at GSB, her attendance was poor, and she was often late. In respo nse,
Long claims KeltanBW admitted firing her for an illegal reason

. Long points to

KeltanBW’ s motion for summary judgment.
Immediately after , Ms. Long called D efendant’s owner, Dr. Kristina T urk, and told her that she “could not come to work because she hurt her back lifting
, babies” and that “Dr. Turk had enough

. . . Long couldn’t work when [Defendant] needed her most.”

(Defendant’s s ummary j udgment m otion ¶ 3 )

.Moreover, Long alleges that the proximity of the date of her

workplace injury on October 4, 2021
, was a sufficient nexus to her October 9, 2021

termination date to create a genuine issue of material fact regarding her retaliation

claim. We find Long’s argument unpersuasive.

Once the moving part

y has met its burden of establishing no genuine
issue of material fact, the burden shifts to the nonmoving party to present evidence

in rebuttal and more than just self

- serving statements

. Acacia on the Green

Condominium Assn. , 2021

- Ohio

- 4521, ¶ 16 ; Dresher
, 75 Ohio S t.3d 280 at 292

- 293.

T he record clearly demonstrates that Long was fired for poor

attendance and excessive tardiness. KeltanBW was concerned about Long’s
attendance and tardiness issues unrelated to her surgery or workplace injury in
September

. She worked for KeltanBW f rom June 8, 2021 , until October 9, 2021.
During that time Long
, missed work to care for her fiancé’s father and her fiancé and
was late several days. Poor attendance is a legitimate nonretaliatory reason to
terminate an employee. Baradji v. Zulily
, 2018

- Ohio

- 304, ¶ 14 (10th Dist.).

Even if this court were to find that Long met her burden of
demonstrating a prima facia case of retaliat ory termination, KeltanBW has offered
a legitimate basis for terminating Long . Thus
, the shifting burden requires Long to
provide some evidence that KeltanBW’s proffered
, legitimate reason wa s pretextual.
Phillips
, 2021

- Ohio

- 4521, at ¶ 16. An employee can establish that the employer’s
proffered reason for termination is a pretext for discrimination by demonstrating by
a preponderance of evidence, the stated reason 1) had no basis in fact, 2) was not theactual reason for the termination , or 3) was insufficient to explain the employer ’ s

action. Love v. Columbus , 2021

- Ohio

- 3494 ; ¶ 20 (10th Dist.)
, quoting St. Mary’s

Honor Ctr. v. Hicks
, 509 U.S. 502, 515 (1993)
, citing Manzer v. Diamond Shamrock

Chems. Co. , 29 F.3d 1078, 1084 (6th Cir. 1994).

Long alleges that Dr. Turk’s statement that “I don’t have time for this

. . . ” and hanging up the phone on her is more than enough evidence that her
attendance and tardiness were pretexts for retaliation

. T he record fails to indicate

that KeltanBW’s stated reason of Long’s poor attendance was not based in fact. Long
admitted that she took several days off and was tardy a lot. Long’s reliance on
conjecture is not evidence of pretext. Long has failed to demonstrate that

KeltanBW’s stated reason s for terminating her was a pretext for retaliatory
termination because she filed a workers’ compensation claim. The trial court
properly granted summary judgment in favor of KeltanBW on Long’s workers’
compensation retaliation claim und er R.C. 4123.90.
Negligent Supervision and Training

Long argues that the trial court erred in dismissing her negligent
supervision and training claims by summary judgment. Long claims that KeltanBW

failed to train and supervise employees regarding disability accommodations and

discrimination in violation of R.C. 4112.02(J)

. Under R.C. 4112.02(J) it is an

unlawful discriminatory practice:
For any person to aid, abet, incite, compel, or coerce the doing of any act declared by this section to be an unlawful discriminatory practice, to obstruct or prevent any person from complying with this chapter orany order issued under it, or to attempt directly or indirectly to commit

any act declared by this section to be an unlawful discriminatory practice.
The elements of negligent supervision claims are the same as those
for negligent training

. Francis v. Northeast Ohio Neighborhood Health Servs
.,

2021

- Ohio

- 3928, ¶ 23 (8 th Dist.). To prevail on negligent hiring, supervision and
training actions , the injured party must prove :
1) the existence of an employment relationship; 2) the employee’s incompetence; 3) the employer’s actual or constructive knowledge of such incompetence; 4) the employee’s act or omission causing the plaintiff’s injuries; and 5) the employer’s negligence in hiring or retaining the employee as the proximate cause of plaintiff’s injuries. Id.

Long cites Rivers to support her claim that summary judgment was
improper

. Rivers v. Cashland Fin. Servs. , 2013

- Ohio

- 1225, ¶ 4 (9th Dist.). In

Rivers , the court reversed the summary judgment decision because there was a
genuine issue of material fact concerning whether the employee was a victim of
retaliatory discharge and racial or disability discrimination due to the alleged
incompetent employee’s conduct

. Id. We find Rivers distinguishable from these

facts

.
Here , Long argues that KeltanBW failed to train its employees to

make reasonable accommodations for disabilities. Furthermore, Long claims that
KeltanBW failed to supervise employees to ensure they did not terminate employees
for illegal reasons. However, Long failed to identify an employee or conduct that

rose to an actionable tort. Moreover , there is no material question of fact concerning
Long’s underlying claims of disability discrimination and workers’ compensationretaliation. Consequently, Long cannot establish that an incompetent employee

committed a legally wrongful act or omission that harmed her

.

Long argues that KeltanBW’s alleged negligent training and
supervision arose from Long’s workplace injury and employment discrimination
claims. KeltanBW counters that these claims are preempted by the workers ’
compensation and employment discrimination statutes. We agree t he workers’
compensation statutes under R.C. Ch. 4123 provide the exclusive remedy for injured

workers

. Bickers v. W. & S. Life Ins. Co. , 2007

- Ohio

- 6751, ¶ 23

. We “ may not
override this choice and superimpose a common

- law, public

- policy tort remedy on
this wholly statutory system. ” Id

. Therefore, Long’s claim for negligent training is
preempted under R.C. Ch. 4123.

Furthermore, negligence claims based on an underlying employment
discrimination claim must be pursued under R. C. Ch. 4112 , which provides the
exclusive remedy for pure employment discrimination claims; Dworning v.
Euclid, 2006

- Ohio

- 677 , ¶ 16

- 17 (8th Dist.), quoting H elmick v. Cincinnati Word
Processing, Inc., 45 Ohio St.3d 131, 133

- 135 (1989)

. Accordingly, the trial court did
not err in granting KeltanBW’s motion for summary judgment on Long’s negligent
supervision and training claims.
Appellant’s After

- Acquired Evidence

Long claims that evidence of her improper time sheet documentation

is after

- acquired evidence and cannot be considered for summary judgment.T he after

- acquired evidence doctrine allows a defendant employer to

show they would have terminated the employee anyway if they had had the evidence

in question. O’Brien v. Ohio State Univ. , 2007

- Ohio

- 4833, ¶ 81 (10th Dist.). If
applicable, the doctrine limits damages at trial

. Id. As we have found that Long

failed to establish that there was a genuine issue of material fact to any of her claims,
damages are not an issue. Therefore, the after

- acquired evidence doctrine is not
applicable under these facts.

Finally
, a fter construing the evidence in a light most favorable to
Long, reasonable minds can come to only one conclusion, and the conclusion is

adverse to Long. We find no genuine issue of material fact regarding Long’s claims

.
Therefore
, KeltanBW is entitled to summary judgment as a matter of law.
Accordingly, Long’s assignment of error is over ruled.

Judgment affirmed.

It is ordered that the appellee recover from appellant costs herein taxed.

The court f

inds there were reasonable grounds for this appeal.
It is ordered that a special mand ate issue out of this court directing the
common pleas court to carry this judgment into execution.A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EMANUELLA D. GROVES , JUDGE

MARY EILEEN KILBANE , P. J., and MICHAEL JOHN RYAN , J., CONCUR