[Cite as Thevenin v. White Castle Mgt. Co., 2018-Ohio-2694.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Victor A. Thevenin, : 

 Plaintiff-Appellant, : 

 No. 17AP-255 

v. : (C.P.C. No. 13CV-11789)

White Castle Management Company, : (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on July 10, 2018 

 

On brief: Livorno and Arnett Co., LPA, and Henry A. Arnett, 

for appellant. Argued: Henry A. Arnett. 

On brief: Porter, Wright, Morris & Arthur LLP, Diane C. 

Reichwein, and Jamie A. LaPlante, for appellee. 

Argued: Diane C. Reichwein. 

 

APPEAL from the Franklin County Court of Common Pleas 

SADLER, J. 

{¶ 1} Plaintiff-appellant, Victor A. Thevenin, appeals a decision of the Franklin 

County Court of Common Pleas finding in favor of defendant-appellee, White Castle 

Management Company, on appellant's claim of retaliation under R.C. 4123.90. We affirm 

the trial court. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} Appellee hired appellant in 2004 as a part-time "watchman." (Tr., Pl.'s Ex. 

2 at 1.) The position of watchman primarily entails hourly "rounds" of the business 

grounds followed by monitoring security cameras while sitting at a control desk. (Tr., 

Pl.'s Ex. 2 at 2.) Conducting a round involves walking an approximate one mile route 
No. 17AP-255 2 

around appellee's various buildings to check for possible problems. To ensure certain 

places are checked, the watchman passes a hand-held wand with a Detex system over 

various points. Without complications, a round could be completed by a healthy 

watchman in about 25 minutes, leaving 35 minutes for the watchman to sit at the control 

center.1 During certain days and times, the round would take longer: 35 minutes to 

complete the round, leaving 25 minutes at the control desk. If there is a problem or 

emergency, the watchman must contact an appropriate person or entity to report the 

problem and, if necessary, use "good judgment" in reacting to the problem, such as 

turning off the correct water line in the event of a broken sprinkler head, for example. 

(Tr., Pl.'s Ex. 2 at 3.) It is undisputed that appellant was well qualified for the job. 

{¶ 3} John Wheeler, Building Maintenance Supervisor, became appellant's 

supervisor in about 2010, at which time appellant worked a part-time schedule. In 2012, 

due to a full-time watchman having health issues and needing reduced hours, appellant's 

hours increased. By August 2012, appellant was working a daytime/evening Monday 

through Friday, 40-hour schedule. However, in October 2012, after the watchman with 

health issues left employment, Wheeler released a schedule in which another watchman 

was given the 40-hour shift and appellant was given a 32-hour shift whereby he would 

work 12:15 a.m. to 8:15 a.m. from Monday through Thursday. On October 18, 2012, 

appellant sent an email to Wheeler and Wheeler's supervisor, Craig Martin, expressing 

his displeasure with a junior watchman being offered the 40-hour position and appellant's 

schedule being changed. Appellant offered three schedule options, all of which involved 

appellant working weekdays and not on weekends. For one option, in which appellant 

took over the opening created when the other watchman left, appellant noted "I would 

have taken [the watchman's] position because I didn't want to work weekends, and [the 

promoted watchman] would have taken my position but he still would have had to work 

weekends if he wanted the job." (Tr., Def.'s Ex. J at 1.) 

{¶ 4} Appellant felt that giving another, somewhat younger watchman 40 hours 

while his schedule was reduced was due to age discrimination2 and met with appellee's 

 

1 Appellant testified that a typical round would take 15 to 20 minutes and could be completed in 10 to 15 

minutes if the watchman hurried. 

2 Facts related to appellant's age discrimination allegations are provided to the extent they bear on the 

question of appellant's claim of retaliation under R.C. 4123.90, the subject of this appeal. 
No. 17AP-255 3 

Team Member Service staff on October 28, 2012 to discuss his internal age discrimination 

complaint. By email dated November 1, 2012, appellant appeared to be satisfied that the 

schedule situation had been resolved. That satisfaction apparently changed when, on 

November 20, 2012, Wheeler released a new schedule whereby appellant would work 40 

hours during the 12:15 a.m. to 8:15 a.m. shift from Sunday morning through Thursday 

morning. By a letter dated November 28, 2012 entitled "Age Discrimination Complaint," 

appellant again expressed his belief that he should be able to retain his previous weekday 

shift or take over the departed watchman's late-night weekday shift. (Tr., Def.'s Ex. T at 

1.) According to appellant, his version of adjusting the schedule given the employees at 

hand was "the only way. There is no other way on Earth you can run the schedule except 

that way." (Tr. Vol. 1 at 200.) Appellant specifically took issue with working a shift that 

essentially started late Saturday evening and therefore covered two weekend days, 

thought the change in schedule to be operationally unnecessary, and believed the change 

was made in retaliation for appellant making an age discrimination complaint and in 

order to make him quit. In essence, appellant wanted to continue working weekdays and 

believed that should be a reward for his "seniority." (Tr. Vol. 1 at 183.) 

{¶ 5} The next day, November 29, 2012, appellant was injured on the job when he 

attempted to turn on lights in a dark conference room, tripped on a box, and fell. 

Appellant filed a workers' compensation claim shortly thereafter. Appellant returned to 

work for short periods of time in December 2012 and early January 2013 with 

intermittent periods of temporary total disability. After an additional week off due to an 

unrelated medical condition, appellant returned to work on January 15, 2013 and worked 

the next two days. 

{¶ 6} By MEDCO-14 form dated January 16, 2013, appellant's physician indicated 

that appellant was temporarily not released to any work, including the former position of 

employment, until March 18, 2013 due to a medial meniscus tear in his left knee. The 

clinical findings section of the form states "[p]atient tried to RTN but was in too much 

pain. Dr. Mueller is taking patient back off work @ this time." (Tr., Joint Ex. 2, Jan. 16, 

2013 MEDCO-14 at 2.) Around that same day, the same physician completed appellee's 

internal medical release form in a manner that both indicated that appellant "is totally 

incapacitated" with a note referencing an upcoming February 18, 2013 surgery and 
No. 17AP-255 4 

indicated that appellant can sit (with rest periods), can do certain repetitive tasks 

bilaterally, can occasionally reach above shoulder level, and can frequently drive. (Tr., 

Def.'s Ex. Y, Jan. 17, 2013 Medical Release Form at 1.) 

{¶ 7} Appellee, through a third-party administrator, scheduled appellee to work 

at a "Modified Duty Off-Site Program" with hours from Monday to Friday. (Tr., Joint Ex. 

4, Jan. 18, 2013 Letter at 1.) Appellant initially agreed to work at the off-site job beginning 

January 22, 2013. According to appellant, a few days later he told appellee's workers' 

compensation administrator that he would not report for off-site duty and would be filing 

a complaint with the Bureau of Workers' Compensation ("BWC"). Before the off-site 

arrangement could go into effect, appellant's doctor clarified that appellant was not to 

work at all. Appellee then placed appellant on medical leave for the remainder of January, 

all of February, and the first few weeks of March. 

{¶ 8} During that time, on January 27, appellant filed a complaint with the BWC 

alleging appellee had not complied with parts of the MEDCO-14 form in insisting 

appellant could work and attempting to place him at the off-site job. On February 6, the 

BWC noted "some possible mishandling of the administration of the claim" but dismissed 

the complaint after having found no apparent rules were violated by the employer. (Tr., 

Joint Ex. 4, Feb. 5, 2013 BWC Letter at 1.) 

{¶ 9} In late February, appellant had arthroscopic surgery to repair the torn 

meniscus after which, on March 6, another MEDCO-14 form was sent to appellee. In it, 

appellant's physician permitted appellant to return to work and provided the "only 

restriction is that he is only to walk 3 [hours] per 8 [hour] shift." (Tr., Joint Ex. 2, Mar. 6, 

2013 MEDCO-14 at 2.) Appellant had a "walk-through" of the rounds with Wheeler on 

March 18, where appellant averaged just under 35 minutes per round over 5 rounds. (Tr. 

Vol. 1 at 251.) Appellee approved a temporary schedule for appellant consisting of 36.5 

hours a week spread over abbreviated night shifts from Sunday through Thursday 

whereby appellant would complete 5 rounds per shift and walk a maximum of 3 total 

hours. According to Wheeler, appellant texted him "ok I'll be there per the schedule." 

(Tr., Def.'s Ex. KK at 1.) 

{¶ 10} Appellant started working again on March 27, 2013. That same day, 

appellant sent Heather Ward, Senior Director of Benefits and Team Member Services, an 
No. 17AP-255 5 

email entitled "Discrimination Complaint"3 which rehashed the schedule change in late 

2012, contended that he was ordered into work on March 18 so that Wheeler could 

conduct what was essentially a medical assessment of his ability to return to work, and 

alleged that Wheeler was "both attempting once again to cut [his] hours and have [him] 

work on a Saturday." (Tr., Def.'s Ex. LL at 1.) According to appellant, if he was put back 

on his Monday through Friday, 40-hour shift, he "could drop the discrimination 

complaint" and "also wouldn't have to bring up an ADA complaint that [he's] being 

treated differently from [other watchmen] due to their mobility problems." (Tr., Def.'s 

Ex. LL at 2.) Ward responded indicating that Bozana Byers, Team Member Services 

Senior Manager, would formally investigate the assertions. 

{¶ 11} The next day, March 28, 2013, appellant emailed Byers contending the 

schedule "was done strictly to retaliate against me by taking me off my 2nd shift of 

Monday-Friday and giving that to the (new duties) younger employee and put me on third 

shift working weekends." (Tr., Def.'s Ex. PP at 1.) On March 31 and April 1, appellant 

emailed Byers discussing the scheduling changes in 2012, the schedule change as evidence 

of retaliation against him due to his age discrimination complaint, and, regarding his 

disability complaint, discussing he now knew that Wheeler's recent change in start time 

to 12:30 a.m. (giving other watchman an extra 15 minutes) and "assessment" were 

mandated by Team Member Services, which would thus necessitate him to file a federal 

Equal Employment Opportunity Commission ("EEOC") complaint or perhaps have the 

legal department look into the matter. (Tr., Def.'s Ex. SS at 1.) 

{¶ 12} Byers interviewed Wheeler on April 1, 2013. According to Wheeler, he had 

not discriminated against appellant, did not recall talking to appellant regarding agerelated medical issues in September 2012, explained that when Wheeler arrived, 

appellant was part-time Monday through Thursday, and that when another watchman 

got sick in 2012, everyone picked up extra time. According to Wheeler, appellant wanted 

to then keep 40 hours and "keeps trying to switch things around so he works when he 

wants." (Tr., Def.'s Ex. TT at 2.) 

 

3 Appellant testified this email was not another, separate discrimination complaint but, rather, was appellant 

"complaining because [he] hadn't heard from the [age discrimination complaint he] filed back in November." 

(Tr. Vol. 1 at 268.) 
No. 17AP-255 6 

{¶ 13} On April 2, appellant sent an email to Ward explaining the "condense[d]," 

5.5 hour schedule did not comply with his restriction of walking a maximum of 3 hours in 

an 8 hour period, the schedule put his health in jeopardy, and what appellant can work is 

the "3rd shift 12:15am to 8:15am Monday through Friday." (Tr., Joint Ex. 8, Apr. 2, 2013 

Email.) Ward responded that the schedule complies with the restrictions by having 

appellant walk 5 rounds for a total of 2 hours and 55 minutes, that his restrictions does 

not include not working weekends, and that appellee would need clarification from 

appellant's physician if appellant did not feel like he could meet his duties. 

{¶ 14} On April 4, 2013, appellant sent Ward an email entitled "Age and Disability 

Discrimination." (Tr., Def.'s Ex. XX at 1.) In it, appellant states: 

As I have advised in past correspondence I told * * * Wheeler 

I could only work the Monday through Friday shift which is 

the shift I was on when I was injured. * * * As you know the 

two past third shift watchman rode carts and did modified 

rounds which I expected to happen for me also. * * * Instead 

my pay was docked 15 minutes every day and William Engram 

stayed over on his shift 15 minutes which became overtime. 

Of course there is no logical reason for this * * * except for 

harassment. * * * Lastly, as I reported earlier the restriction I 

am on is for walking during an 8 hour period and not a 5 hour 

period as I have already explained all the particulars on that 

issue and that day is scheduled only because of the other 

discrimination[.] Further since as required by law that 

accommodations as discussed with my employer (both John 

Wheeler and Team Member Services) have not been made and 

my pay had been reduced I have no choice but to file my 

complaint with the Ohio Civil Rights Commission and the 

Federal EEOC. As I had stated in earlier emails I don't believe 

Team Member Services can investigate itself but that I would 

talk with the Legal Dept. but that really isn't likely to occur. 

Also when I return on Monday you can advise me if I will need 

to continue to call off for that 1:30am Sunday shift at which 

time I will get a new Medco 14 form which will probably just 

put me off until June, but I prefer it gets worked out. 

(Tr., Def.'s Ex. XX at 1.) 

{¶ 15} On April 4, 2013, Wheeler met with appellant to review his yearly 

performance appraisal. Wheeler scored appellant a 4 out of 5 ("exceeded expectations") 

in job knowledge, a 3 ("consistently met expectations") in two quality of work categories, 
No. 17AP-255 7 

and a 2 ("performed below expectations") in cooperation and safety. (Tr., Pl.'s Ex. 9 at 3.) 

Regarding cooperation, the performance review states: 

[Appellant's] cooperation with the department and his 

supervisor has diminished. He does not view his workplace as 

a "team" environment. In his shift reports he is quick to show 

discontent with coworkers and belittling to others in the 

department, even diagnosing a coworkers malady. He uses 

creative dramatic language to present information and 

opinion. In his reports he often moves away from his job 

duties to criticize others, procedures, and the company. 

(Tr., Pl.'s Ex. 9 at 2.) Regarding safety, the performance review states: "[Appellant] 

admitted that he did not follow the watchmen's safety procedures and was not carrying 

his flashlight on rounds. This directly contributed to causing his injury resulting in cost 

to the company and lost man hours." (Tr., Pl.'s Ex. 9 at 3.) The summary section of the 

review states: 

[Appellant] can be a friendly personable team member. He 

takes his position very seriously. He has prior experience and 

training with building security. He readily offers suggestions 

for procedures or improvements with the watchman 

department. 

* * * 

[Appellant] must stay current and up to date regarding the 

building, it's [sic] systems, and procedures as they change and 

develop. He will communicate directly with his supervisor 

and use shift reports to provide necessary information. The 

reports must be brief and to the point. [Appellant] should not 

elaborate with opinions and unnecessary details that are not 

pertinent to a watchman's shift report. 

* * * 

[Appellant] needs to attend any pertinent training or 

department meetings that are made available to him. He will 

work with his supervisor and Bob Lewis as part of that 

training. [Appellant] needs to provide the appropriate reports 

on every shift even if there is nothing to report. [Appellant] 

needs to be open to constructive criticism and accept feedback 

from his supervisor. [Appellant] must improve his 

communication style whether written or verbal. 
No. 17AP-255 8 

(Tr., Pl.'s Ex. 9 at 4.) The total performance rating of 14 ("consistently met expectations") 

was a reduction from appellant's previous performance reviews, which had reached as 

high as 19 ("exceeded expectations") the previous year.4 According to Wheeler, unlike his 

previous managers, Byers had told him that he should not simply give "pat on the back" 

reviews for the watchmen, but, rather, he should give employees constructive feedback if 

necessary. (Tr. Vol. 2 at 465.) Appellant sent emails to Ward disputing the performance 

evaluation and stating it is "quite derogatory," "an extreme difference" from past 

evaluations, and "just more cause for [his discrimination] complaint." (Tr., Def.'s Ex. YY 

at 1.) 

{¶ 16} On April 8, 2013, appellant sent Ward an email stating, in reviewing the 5.5-

hour schedule, he assumed he was being denied accommodations that several other 

watchmen received, such as use of a cart. Ward responded appellee was working under 

appellant's restrictions and not accommodations made at the request of physicians for the 

other watchmen. 

{¶ 17} That same day, appellant's physician sent a new MEDCO-14 form specifying 

appellant can walk no more than 30 minutes at a time followed by a 45-minute rest 

period. Appellee placed appellant back on temporary total disability leave while it 

considered the schedule. 

{¶ 18} By letter to appellant dated April 9, 2013, Ward relayed appellee's position 

that following an investigation by Byers, appellant's various claims of discrimination and 

retaliation due to age could not be substantiated. The unsubstantiated claims included 

appellant's contention that his medical restrictions were not being followed, that appellee 

was not meeting accommodations required by law, and that his performance evaluation 

was derogatory and discriminatory. 

{¶ 19} In a letter dated April 19, 2013, appellee provided appellant with a 

temporary rounds schedule to comply with his March 6 and April 8, 2013 restrictions. 

The letter states in pertinent part: 

Please report to work for your first scheduled shift on Sunday 

- April 28, -13. 

 

4 Appellant's total performance ratings for previous review periods are as follows: 2004 (16); 2005-2006 (17); 

2006-2007 (17); 2007-2008 (17); 2008-2009 (16); 2009-2010 (18); 2010-2011 (18); and 2011-2012 (19). 
No. 17AP-255 9 

Your shift time will be 12:15am to 8:15am, see attached 

schedule sheet. Included with the shift schedule is your 

watchman rounds schedule. * * * 

Please remember it is your responsibility to monitor your 

walking periods in order to remain in compliance with your 

restriction. A log sheet will be provided to assist in tracking 

those times and the area needed to be covered in the next 

scheduled round. * * * You are still temporarily permitted to 

use the passenger elevator for other floor access during this 

restriction period. Due to longer periods of sitting at the front 

desk, additional clerical or administrative tasks will be 

provided. 

Any issues that would cause you to exceed the established 

restrictions must be reported to the Building Maintenance 

Department. If any issues such as this occur, please be sure 

to directly contact someone from the Building Maintenance 

call list. 

As with all watchmen, properly addressing building issues 

takes precedence. The appropriate responses must be in 

accordance with prior training and instructions, whether 

written or verbal and in the best interest of White Castle, PSB, 

and the team members. 

(Tr., Def.'s Ex. CCC at 1.) Attached to the letter is a work schedule detailing when to begin 

and when to end walking during each round for each hour of the shift, allowing for 30 

minutes of walking with 45 minutes of rest between rounds. The Sunday shift includes 6 

rounds for a total of 3 hours of walking and the Monday through Thursday shifts include 

5 rounds for 2 and one-half hours of walking. 

{¶ 20} Appellant called Wheeler on the morning of Thursday, April 25. According 

to appellant, he told Wheeler that the schedule would violate his restrictions and that it 

might be easier for appellant to go back to the doctor and have his restrictions changed, 

and Wheeler responded by telling appellant he lacked authority to make a change, would 

contact the appropriate person with these concerns, and would contact appellant later. 

Appellant decided to work on Sunday, April 28, so he could not be accused of job 

abandonment. In appellant's view, showing up for work was justified because Wheeler's 

letter told appellant to report to work on Sunday, during the call Wheeler never told him 

not to report, and Wheeler did not communicate further with appellant after the call. 
No. 17AP-255 10 

{¶ 21} Conversely, according to Wheeler, during the call on April 25, appellant 

asserted the letter should have been from Risk Management or Team Member Services 

and then stated that due to his restrictions and rehabilitation concerns, he could work a 

Monday through Friday shift but not the Sunday shift. According to Wheeler, as things 

stood after the call, appellant would not work on Sunday, April 28, he would have his 

doctor change his restrictions to less walking, and appellant should not come to work until 

contacted by Team Member Services. Wheeler memorialized his conversation with 

appellant in an email sent that day to Ward, Byers, and several others and made 

arrangements for another watchman to take the Sunday shift. Wheeler received no 

further communication from appellant as to whether he should appear for work or how 

he should conduct the rounds specifically. 

{¶ 22} Appellant showed up for work on Sunday, April 28, and the replacement 

watchman left. Appellant admits he worked the shift by walking more than 30 minutes5

during each round because he "didn't have a choice." (Tr. Vol. 2 at 351.) According to 

appellant, the letter was unclear regarding how to handle areas not covered by a round, 

and "[s]ince there are no instructions on what to check and what not to check, during a 

round so that the round only took 30 minutes, this can only mean that there can be no 

deviations from the watchman's duties." (Tr., Joint Ex. 14, Apr. 28, 2013 Email at 1.) 

{¶ 23} At the end of his shift, appellant sent Wheeler and Ward an email stating 

that due to the "letter dated April 19, 2013 and the paragraph stating that the building 

requirements take precedence[,] I walked 4.5 hours, every round was 45 minutes walking 

and a half hour sitting." (Ex. at 43, Dec. 1, 2014 Memo. in Opp.) Appellant also left a 

voicemail for Wheeler with the following message: "Yeah, just per your letter let you know 

that I walked 4 1⁄2 hours each round, was 45 minutes walking and 1/2 hour sitting, so 

violation again, bye." (Tr., Def.'s Ex. LLL at 1.) 

{¶ 24} Wheeler called appellant and told him not to report to work the next day, 

Monday. According to Wheeler, appellant contended that Wheeler lacked authority to 

make such an order, that he would not recognize the order unless it came from Risk 

Management or Team Member Services, and that he would still come into work. Wheeler 

 

5 According to camera footage, appellant walked 45 minutes the first round, 41 minutes the second round, 41 

minutes the third round, 42 minutes the fourth round, 39 minutes the fifth round, and 38 minutes the sixth 

round. 
No. 17AP-255 11 

relayed the conversation to Ward; Ward called appellant and told him not to report for 

work on Monday. 

{¶ 25} On Monday, April 29, appellant sent Ward an email entitled "Schedules." 

(Ex. 29, Thevenin Dep.) In it, appellant writes: 

[Three watchmen] have spent their entire career at White 

Castle as the weekend personnel. I started that way myself, 

but through seniority I eventually got off weekends which is 

your reward for longevity and commitment to the company. 

We all took the job knowing this and for security work this is 

extremely common. With that said, the problems with the 

schedule began when the weekend personnel were no longer 

covering the weekends. The problem now and in the future 

will be that there is no one to cover for the weekends anymore. 

If I had not been injured and was still working on the present 

schedule we would have the same problems. * * * The 

complaint began when the shift was moved over another day 

to Sunday which used to be the Saturday/Sunday 3rd shift 

position. That is when it became impossible to manage the 

schedule. * * * The refusal to go back to this sort of schedule 

led me to believe something else was going on and that's why 

I complained, but as I said earlier that is irrelevant in this 

email and that is not the intent of this email. * * * 

* * * 

* * * I can submit a comprehensive plan for approval of how I 

will conduct the rounds that would be in accordance with the 

Doctors restrictions if I worked a Monday-Friday schedule. I 

cannot think of any logical plan for Sunday because there are 

just to[o] many rounds and to[o] much that needs checked 

without security of the building suffering. I know the 

watchmen do not work under direct supervision and it would 

be difficult for Wheeler to write such a plan especially since he 

really doesn't know what I do. I understand that Wheeler has 

no training or experience in security and there is no problem 

with that. He was hired because of his Maintenance 

experience. I have tried to help by writing procedures for the 

Department which you now have. I guess what I'm saying is 

trust me on this schedule it will work because it has in the 

past. 

(Ex. 29 at 1-2, Thevenin Dep.) 

{¶ 26} That same day, at a meeting between Wheeler, Ward, and Byers, Ward 

made the decision to suspend appellant while Byers conducted an investigation. Byers 
No. 17AP-255 12 

called appellant and asked him why he showed up for work on Sunday. According to 

Byers' notes on the call, appellant repeatedly referred her to his emails to Ward. When 

Byers asked appellant if he talked to Wheeler about the letter, appellant responded that 

he told Wheeler there would be a problem with the rounds, that Wheeler never got back 

to him or told him not to come to work, and, so to cover himself, appellant showed up for 

the shift. Byers asked why appellant violated the restrictions, and appellant again referred 

her to the email to Ward and stated "[t]he letter said the building takes precedence so that 

is what I did." (Ex. 30 at 1, Thevenin Dep.) When Byers informed appellant of the 

suspension, appellant told Byers that the suspension was meaningless, that he would not 

recognize the suspension unless it was in a letter, that he was in the process of filing a 

complaint with the BWC, and that he would add his suspension to the complaint. 

{¶ 27} Byers met with Ward to present the results of her investigation. Ward 

decided to terminate appellant on the grounds of insubordination and violating his work 

restrictions. The ground of insubordination was based on appellant reporting for work 

on April 28, 2013, telling Wheeler he lacked authority to order him to report for work, 

and his failure to cooperate with Byers' investigation. The ground of violating his work 

restrictions was based on appellant walking continuously for more than 30 minutes 

during each round on April 28, 2013. Appellant was terminated May 1, 2013. 

{¶ 28} Appellant filed a complaint with the BWC the next day6 contending appellee 

was not complying with doctor's restrictions and not providing him with 40 hours a week 

in retaliation for appellant previously filing a complaint with the BWC. On July 16, 2013, 

appellant filed a notice of R.C. 4123.90 violation with appellee. On May 22, 2013, the SelfInsured Complaint Resolution Unit of the BWC found the complaint to be invalid. 

Appellant filed a request for reconsideration on May 29, 2013; a field officer found that 

the pertinent administrative code entitled appellant to a hearing on the retaliation matter 

before the self-insured employers' evaluation board, if he so chose. 

{¶ 29} On October 25, 2013, appellant filed a complaint in the Franklin County 

Court of Common Pleas asserting that after he was injured at work and filed a workers' 

compensation claim, he was subject to retaliation, discrimination, and punitive action by 

 

6 Appellant dated the complaint and accompanying letter April 29, 2013; the BWC sent appellee notice of the 

complaint on the day it was filed—May 2, 2013. 
No. 17AP-255 13 

appellee, culminating in appellee wrongfully terminating his employment in violation of 

R.C. 4123.90. Appellee moved for summary judgment on November 14, 2014, and 

appellant filed a memorandum contra with an attached affidavit and appendix of 

documents. The trial court struck portions of the affidavit and the attached documents 

and then found in favor of appellee. Appellant appealed, and in Thevenin v. White Castle 

Mgt. Co., 10th Dist. No. 15AP-204, 2016-Ohio-1235, we reversed based on the trial court 

improperly striking portions of the affidavit and the attached documents and remanded 

the matter to the trial court. On remand, the trial court overruled appellee's motion for 

summary judgment, and the case proceeded to a bench trial on February 27 through 

March 3, 2017. At trial, appellant, five witnesses, and an expert on the issue of mitigation 

testified and 94 exhibits were admitted. 

{¶ 30} On March 13, 2017, the trial court filed a decision finding in favor of 

appellee. The trial court rejected appellant's claim that his 2012-2013 evaluation was 

either false or pretextual. Regarding the MEDCO-14 form restrictions, the trial court 

disagreed with how appellee interpreted the restrictions but nonetheless found "there 

clearly was no retaliatory animus" in those interpretations. (Trial Ct. Decision at 23.) The 

trial court believed appellant "caused his own fate * * * by his clear insubordination and 

his violations of his work restrictions" and found appellant did not meet his burden of 

showing the stated reasons for his termination were pretextual. (Trial Ct. Decision at 24.) 

Finally, the trial court found that even if appellant had prevailed, he would not be entitled 

to back pay due to his failure to mitigate his damages. 

{¶ 31} Appellant filed a timely appeal to this court. 

II. ASSIGNMENTS OF ERROR 

{¶ 32} Appellant presents two assignments of error for our review: 

[1.] The Court of Common Pleas erred by granting judgment 

in favor of Defendant and dismissing Plaintiff's Complaint. 

[2.] The Court of Common Pleas erred by ruling that Plaintiff, 

even if he prevailed, would not be entitled to back pay. 

III. STANDARD OF REVIEW 

{¶ 33} Appellant does not set forth a standard of review in his brief. A review of 

appellant's argument shows he essentially challenges the trial court decision as against 
No. 17AP-255 14 

the manifest weight of this evidence. Wurzauf v. Honda of Am. Mfg., 3d Dist. No. 14-06-

31, 2007-Ohio-1913, ¶ 7 (evaluating appellant's contention the trial court erred in 

determining Honda did not discharge him in violation of R.C. 4123.90 under manifest 

weight standard of review); Quaye v. N. Mkt. Dev. Auth., 10th Dist. No. 15AP-1102, 2017-

Ohio-7412, ¶ 20 ("In reviewing a decision reached at a bench trial, we utilize a manifest 

weight standard."). 

{¶ 34} The standard of review for manifest weight is the same in a civil case as in a 

criminal case. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 17. " 'Weight 

of the evidence concerns "the inclination of the greater amount of credible evidence, 

offered in a trial, to support one side of the issue rather than the other." ' " (Emphasis 

sic.) Id. at ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting 

Black's Law Dictionary 1594 (6th Ed.1990). "When presented with a challenge to the 

manifest weight of the evidence, an appellate court may not merely substitute its view for 

that of the trier of fact, but must review the entire record, weigh the evidence and all 

reasonable inferences, consider the credibility of witnesses and determine whether in 

resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a 

manifest miscarriage of justice that the [judgment] must be reversed and a new trial 

ordered." State v. Norman, 10th Dist. No. 10AP-680, 2011-Ohio-2870, ¶ 8, citing 

Thompkins at 387. Sparre v. Ohio Dept. of Transp., 10th Dist. No. 12AP-381, 2013-Ohio4153, ¶ 10 (10th Dist.). An appellate court should reserve reversal of a conviction as being 

against the manifest weight of the evidence for only the most " 'exceptional case in which 

the evidence weighs heavily against the conviction.' " Thompkins at 387, quoting State v. 

Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). 

{¶ 35} In conducting a manifest weight of the evidence review, we may consider 

the credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio4953, ¶ 6. However, in conducting such review, "we are guided by the presumption that 

the jury, or the trial court in a bench trial, 'is best able to view the witnesses and observe 

their demeanor, gestures and voice inflections, and use these observations in weighing 

the credibility of the proffered testimony.' " Id., quoting Seasons Coal Co., Inc. v. 

Cleveland, 10 Ohio St.3d 77, 80 (1984). "Mere disagreement over the credibility of 

witnesses is not a sufficient reason to reverse a judgment on manifest weight grounds." 
No. 17AP-255 15 

State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 25, discretionary appeal not 

allowed, 140 Ohio St.3d 1455, 2014-Ohio-4414, citing State v. G.G., 10th Dist. No. 12AP188, 2012-Ohio-5902, ¶ 7. 

IV. DISCUSSION 

A. First Assignment of Error 

{¶ 36} Under his first assignment of error, appellant contends the trial court erred 

in granting judgment in appellee's favor because it incorrectly determined the reasons 

given by appellee for appellant's termination were not pretextual pursuant to the test to 

support retaliatory discharge under R.C. 4123.90. 

{¶ 37} R.C. 4123.90 states in pertinent part: 

No employer shall discharge * * * or take any punitive action 

against any employee because the employee filed a claim or 

instituted, pursued or testified in any proceedings under the 

workers’ compensation act for an injury or occupational 

disease which occurred in the course of and arising out of his 

employment with that employer. 

{¶ 38} "[T]he basic purpose of the retaliation statute is to enable employees to 

freely exercise their rights without fear of retribution from their employers." (Internal 

quotations omitted.) Onderko v. Sierro Lobo, Inc., 148 Ohio St.3d 156, 2016-Ohio-5027, 

¶ 16. " 'The scope of the statute is nevertheless narrow, and R.C. 4123.90 does not prevent 

an employer from [taking an adverse employment action against] an employee who is 

unable to perform his or her duties [or] for just and lawful reasons. The statute protects 

only against [adverse employment actions] in direct response to the filing or pursuit of a 

workers' compensation claim.' " White v. Mt. Carmel Med. Ctr., 150 Ohio App.3d 316, 

2002-Ohio-6446, ¶ 36 (10th Dist.), quoting Sidenstricker v. Miller Pavement 

Maintenance, Inc., 10th Dist. No. 00AP-1146 (Oct. 25, 2001). 

{¶ 39} Pursuant to R.C. 4123.90, "[t]o support a claim for retaliatory discharge, a 

plaintiff must show that: (1) [he] engaged in a protected activity, (2) [he] was the subject 

of an adverse employment action, and (3) a causal link existed between the protected 

activity and the adverse action." Baradji v. Zulily, 10th Dist. No. 16AP-628, 2018-Ohio304, ¶ 10. White at ¶ 44, quoting Barker v. Dayton Walther Corp., 56 Ohio App.3d 1, 3 

(2d Dist.1989) (R.C. 4123.90 " 'prevents an employer from discharging an employee 

because the employee pursues a workers' compensation claim.' "). Onderko at ¶ 40 ("[A] 
No. 17AP-255 16 

prima facie case of retaliatory discharge under R.C. 4123.90 requires a plaintiff to prove 

only that the employer discharged, demoted, reassigned, or took any other punitive action 

against the plaintiff in retaliation for the plaintiff's filing a workers' compensation claim 

or instituting, pursuing, or testifying in any proceedings under the Workers' 

Compensation Act."). 

{¶ 40} "If the plaintiff meets [his] initial burden in establishing a prima facie case, 

then the burden shifts to the defendant to give a legitimate, non-discriminatory reason 

for the action." Baradji at ¶ 10; White at ¶ 37. "If the defendant gives a nondiscriminatory 

reason, then the plaintiff must show that the articulated reason was only a pretext for the 

adverse action." Baradji at ¶ 10; White at ¶ 37. 

{¶ 41} In this case, appellant argues the facts of the case "clearly demonstrated a 

causal link between the protected activity and the adverse action" and that appellee's 

proffered reasons for terminating appellant—that appellant violated his own work 

restrictions and was insubordinate—were "clearly pre-textual." (Appellant's Brief at 27, 

30.) Appellee counters appellant failed to prove that the reasons given by appellee were 

merely a pretext for terminating appellant. For the following reasons, we agree with 

appellee. 

{¶ 42} To prove pretext, a plaintiff must prove that the employer's stated reason 

"(1) had no basis in fact, (2) did not actually motivate the adverse employment action, or 

(3) was insufficient to motivate the adverse employment action." Ferguson v. SanMar 

Corp., 12th Dist. No. CA2008-11-283, 2009-Ohio-4132, ¶ 21. Baradji at ¶ 16. "The 

reasonableness of an employer's decision is critical in determining whether the proffered 

reason was the employer's actual motivation." McKenzie v. Meijer, Inc., 5th Dist. 

06CA64, 2007-Ohio-4430, ¶ 29. 

{¶ 43} Appellee's first proffered reason to terminating appellant is that appellant 

violated his work restrictions as stated in the MEDCO-14 form dated April 8, 2013, which 

stated appellant could walk no more than 30 minutes at a time followed by 45 minutes 

rest. The trial court characterized appellant's manner or working the rounds on April 28 

as "consistent with a studied insolence." (Trial Ct. Decision at 13.) Appellant does not 

dispute he violated his restrictions but essentially contends he was placed in a situation 
No. 17AP-255 17 

where he could either not do his job (and face discipline) or violate his restrictions and 

report the violations to appellee. 

{¶ 44} We disagree that appellant was placed in a situation where he could either 

not do his job or violate his restrictions. The letter of April 19, 2013 clearly sets forth a 

schedule for rounds in compliance with his doctor's restrictions and states that "[a] log 

sheet will be provided to assist in tracking those times and the areas needed to be covered 

in the next scheduled round." (Tr., Pl.'s Ex. 12 at 1.) Appellant admits he violated his 

doctor's restrictions by completing the total round in one pass and does not contend any 

emergency response, for example, contributed to his violating the rounds. Furthermore, 

appellant does not state how the alleged contradiction or ambiguity in the letter proves 

that his admitted violation of his restrictions was merely a pretext for discriminating 

against him for filing a workers' compensation claim and/or complaint. Finally, while 

appellant mentions in his brief that appellee cited no policy that would support the 

termination of appellant, the burden of demonstrating a stated reason is insufficient to 

motivate an adverse action is on appellant in the pretext stage. Ferguson. 

{¶ 45} Appellee's second proffered reason to terminating appellant is that 

appellant was insubordinate. Appellant argues the evidence shows that appellant never 

disobeyed an order by coming in on April 28 but, rather, that he was given a written 

directive by certified mail to report for work, the order was never changed "with the 

evidence clearly being that his supervisor did not tell him not to report on April 28." 

(Emphasis sic.) (Appellant's Brief at 32.) The trial court judge thought otherwise, 

concluding that "[appellant's] conduct on April 28, 2013, was something calculated to 

place [appellee] in an untenable position." (Trial Ct. Decision at 19.) 

{¶ 46} After review of the record, we disagree that the evidence of this case shows 

appellant was not insubordinate for coming into work on April 28. First, the record 

documents a history—spanning a period which began prior to his injury and workers' 

compensation claim and complaint—of appellant resisting and challenging appellee, 

Wheeler in particular, on being assigned a schedule whereby he would work weekends. 

Even on April 29, 2013, the day after the shift in dispute here, appellant again challenged 

the decision to have him work a shift with weekends as against seniority and remarked 

"[i]f I had not been injured and was still working on the present schedule we would have 
No. 17AP-255 18 

the same problems." (Tr., Def.'s Ex. HHH, Apr. 29, 2013 Email at 1.) Furthermore, 

Wheeler's account of the call with appellant on the morning of April 25 supports appellee’s 

insubordination ground. According to Wheeler, it was understood after the April 25 call 

that appellant would not report to work that Sunday and should await further 

communication from Team Member Services prior to reporting back to work. Wheeler's 

testimony was supported by his email to other staff of appellee that same day and, in 

particular, his securing a replacement watchman to cover that shift. With both appellant 

and Wheeler telling a different story about the call on the morning of April 25, the 

credibility of appellant and Wheeler became critical in determining whether appellant 

was insubordinate in working on April 28. As noted, the trial court judge, as trier of fact, 

personally observed both men testify before finding in favor of appellee. 

{¶ 47} Furthermore, appellant's brief neither challenges as proper grounds or 

otherwise addresses appellant's interactions with Wheeler (in telling him he lacked 

authority to tell him to not report to work on April 29) and Byers (during her investigation 

of his April 28 work appearance), which the trial court also cited as instances giving rise 

to appellee's termination ground of insubordination. As such, appellant has not met his 

burden in demonstrating error on appeal in this regard. App.R. 16(A)(7); State v. Sims, 

10th Dist. No. 14AP-1025, 2016-Ohio-4763, ¶ 11 (stating general rule that an appellant 

bears the burden of affirmatively demonstrating error on appeal); State v. Smith, 9th Dist. 

No. 15AP0001n, 2017-Ohio-359, ¶ 22 (noting that it is not the duty of an appellate court 

to create an argument on an appellant's behalf). 

{¶ 48} R.C. 4123.90 protects only against adverse employment actions in direct 

response to the filing or pursuit of a workers' compensation claim. White. After reviewing 

the entire record, weighing the evidence and all reasonable inferences, and considering 

the credibility of witnesses, we find the trial court judge, as trier of fact, did not err in 

determining that under R.C. 4123.90, appellant failed to prove appellee's reasons for his 

termination were mere pretext for discrimination, and the decision is not against the 

manifest weight of the evidence. Norman at ¶ 8, citing Thompkins at 387. 

{¶ 49} Accordingly, we overrule appellant's first assignment of error. 

 
No. 17AP-255 19 

B. Second Assignment of Error 

{¶ 50} Under his second assignment of error, appellant contends the trial court 

erred in ruling that even if he prevailed, appellant would not be entitled to back pay. In 

the first assignment of error, we determined appellant did not prevail on his claim. As a 

result, we find this assignment of error to be moot. 

{¶ 51} Accordingly, appellant's second assignment of error is moot. 

V. CONCLUSION 

{¶ 52} Having overruled appellant's first assignment of error and finding 

appellant's second assignment of error moot, we affirm the judgment of the Franklin 

County Court of Common Pleas. 

Judgment affirmed. 

TYACK and DORRIAN, JJ., concur. 

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