IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DAVID LEGG, : Case No. 2:11-CV-00567 

 : 

Plaintiff, : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

AMSTED RAIL COMPANY, INC., : 

 : Magistrate Judge Norah McCann King 

 : 

Defendant. : 

OPINION AND ORDER 

I. INTRODUCTION 

This matter is before the Court on Defendant’s Motion for Summary Judgment. (Dkt. 25) 

For the reasons set forth herein, Defendant’s Motion is GRANTED.

II. BACKGROUND 

Defendant, Amsted Rail Company, Inc. (“Amsted”), employed Plaintiff David Legg from 

January 31, 2007, until March 29, 2011. On multiple occasions from late 2010 until his 

termination, Plaintiff publicly opposed Defendant’s proposed changes to its seniority policy. 

Plaintiff perceived the changes to discriminate against “more senior employees.” On March 20, 

2011, Plaintiff observed multiple alleged safety violations committed by Defendant’s 

contractors. First, Plaintiff noticed an unattended crane with a load suspended in air. He 

admonished the contractor regarding the danger, but did not inform his supervisor at that time. 

Later that day, Plaintiff was involved in a workplace accident that caused injury to a different 

contractor. After that accident, Plaintiff reported to his supervisor, Steve Drake, about the 

accident and the multiple safety violations he had observed. (Plaintiff’s Deposition, Dkt. 27 at 

145-47) Upon learning of the accident, Defendant suspended Plaintiff pending an investigation. 

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The investigation found that Plaintiff’s reckless behavior caused the accident and the injury to 

the contractor. On March 29, 2011, following the investigation, Defendant discharged Plaintiff, 

citing Plaintiff’s violation of “company policies and rules of conduct regarding 

threats/intimidation, destruction of company property, and violence/causing harm to an 

individual.” (Plaintiff’s Deposition, Dkt. 27 at 176) Defendant memorializes its safety policies 

in the Employee Handbook, Employee Guide to Safety, and Rules of Conduct. (Dkt. 25 at 4) 

Plaintiff had received each of those safety materials with the understanding he was to review and 

comply with them. (Dkt. 27 at 62-79) The Rules of Conduct state that infractions “can lead to 

suspension and discharge.” (Dkt. 25, Exh. 3 at 1) The conduct prohibited by the rules includes 

“violation of any safety rule,” “poor workmanship, carelessness, or improper job performance,” 

and “willful damage to or abuse of property of Company.” (Id.) Plaintiff contends, however, 

that he was not terminated for causing the accident, but in retaliation for speaking out against 

Defendant’s alleged discriminatory conduct and unsafe work practices. 

 Plaintiff originally filed suit against Defendant in the Franklin County Court of Common 

Pleas on May 24, 2011. (Complaint, Dkt. 3) Defendant subsequently removed the suit to this 

Court on June 24, 2011. (Notice of Removal, Dkt. 1) Defendant then filed a Motion to Dismiss 

which the Court granted in part and denied in part. (Dkt. 13) As a result, Plaintiff filed an 

Amended Complaint which states two claims: (1) retaliatory termination in violation of Ohio 

Revised Code § 4112.02 and § 4112.99; and (2) wrongful termination in violation of public 

policy as embodied in O.R.C. sections 4112 and 4113, as well as the National Labor Relations 

Act, 29 USC § 157, 158. (Amended Complaint, Dkt. 14) Plaintiff requests the following relief: 

back pay and benefits, reinstatement with reasonable accommodations or front pay and benefits, 

pre-judgment interest, post-judgment interest, compensatory damages, punitive damages, 

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liquidated damages, attorneys’ fees, expert witness’s fees, and the costs of this action. The 

Motion has been fully briefed and is ripe for decision. 

III. STANDARD OF REVIEW

 Federal Rule of Civil Procedure 56 provides, in relevant part, that summary judgment is 

appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue as to any material fact and 

the moving party is entitled to judgment as a matter of law.” A fact is deemed material only if it 

“might affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United 

States, 20 F.3d 222, 224 (6th Cir.1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247–48, (1986)). 

The nonmoving party must then present “significant probative evidence” to show that 

“there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris 

Cos., Inc., 8 F.3d 335, 339–40 (6th Cir.1993). The suggestion of a mere possibility of a factual 

dispute is insufficient to defeat a movant's motion for summary judgment. See Mitchell v. Toledo 

Hospital, 964 F.2d 577, 582 (6th Cir.1992) (citing Gregg v. Allen–Bradley Co., 801 F.2d 859, 

863 (6th Cir.1986)). Further, “summary judgment will not lie if the dispute is about a material 

fact that is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict 

for the non-moving party.” Anderson, 477 U.S. at 248. When a plaintiff, however, invokes 

summary judgment “and a showing is made by the [plaintiff], the burden rests on the [defendant] 

to show that he has a ground of defense fairly arguable and of a substantial character.” Pen-Ken 

Gas & Oil Corp. v. Warfield Natural Gas Co., 137 F.2d 871, 877 (6th Cir. 1943). 

The necessary inquiry for this Court in determining whether summary judgment is 

appropriate is “whether ‘the evidence presents a sufficient disagreement to require submission to 

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a jury or whether it is so one-sided that one party must prevail as a matter of law.’” Patton v. 

Bearden, 8 F.3d 343, 346 (6th Cir.1993) (quoting Anderson, 477 U.S. at 251–52). In evaluating 

such a motion, the evidence must be viewed in the light most favorable to the nonmoving party. 

See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The mere existence of a scintilla of 

evidence in support of the opposing party's position will be insufficient; there must be evidence 

on which the jury could reasonably find for the opposing party. See Anderson, 477 U.S. at 251; 

Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995). Self-serving affidavits, alone, are not 

enough to create an issue of fact sufficient to survive summary judgment. Wolfe v. Vill. of Brice, 

Ohio, 37 F. Supp. 2d 1021, 1026 (S.D. Ohio 1999). See Anderson, 477 U.S. at 251; Copeland,

57 F.3d 476 at 479. 

 With regard to affidavits, Rule 56 (e) requires that affidavits submitted in support of or in 

opposition to motions for summary judgment include facts based on personal knowledge and that 

personal knowledge “must be evident from the affidavit.” Reddy v. Good Samaritan Hosp. & 

Health Ctr., 137 F.Supp.2d 948, 956 (S.D. Ohio 2000). Affidavits at the summary judgment 

stage also may not rely upon inadmissible hearsay because inadmissible hearsay “cannot create a 

genuine issue of material fact.” North American Specialty Ins. Co. v. Myers, 111 F.3d 1273, 83 

(6th Cir. 1997).

IV. LAW AND ANALYSIS 

A. Retaliatory Termination in Violation of ORC § 4112.02 

In Plaintiff’s Amended Complaint, he alleges the actual reason for his termination was 

his opposition to proposed changes to the seniority plan which “he deemed as discriminatory 

conduct against senior employees.” (Amended Complaint, Dkt. 14 at 3) In this Court’s prior 

Order on Defendant’s Motion to Dismiss, the Court found “Plaintiff’s use of the words ‘senior 

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employees’ in his Complaint does not clearly indicate whether he meant senior in reference to 

age or senior in reference to length of service with the company.” (Order, Dkt. 13 at 8) This 

ambiguity is significant because ORC § 4112.02 makes it unlawful “[f]or any employer, because 

of the race, color, religion, sex, military status, national origin, disability, age, or ancestry of any 

person” to discriminate in “any matter directly or indirectly related to employment.” (emphasis 

added) Subsection (I) also makes unlawful employment-related discrimination “against any 

other person because that person has opposed any unlawful discriminatory practice defined in 

this section.” Nowhere does ORC § 4112 mention employment decisions which consider 

“seniority” or length of service, much less declare such considerations an “unlawful 

discriminatory practice.” Thus, if Defendant terminated Plaintiff for opposing alleged age-based 

discrimination, ORC § 4112 gives the Plaintiff a cause of action. If, on the other hand, Plaintiff 

only opposed a policy change which harmed employees with a longer length of service, he has 

no claim under the statute. While logic suggests a correlation exists between age and length of 

service, the Supreme Court has held “[b]ecause age and years of service are analytically distinct, 

an employer can take account of one while ignoring the other, and thus it is incorrect to say that a 

decision based on years of service is necessarily ‘age based.’” Hazen Paper Co. v. Biggins, 507 

U.S. 604, 611 (1993). 

 Prior to discovery, it was not clear whether Plaintiff alleged Defendant’s changes to the 

seniority system would harm older employees or longer-serving employees. Plaintiff’s 

deposition now leaves no doubt, however, that he believed the changes harmed longer-serving 

employees and were not related to age. 

Q. But I want to clarify something you just said. You said, “old in seniority or 

young in seniority.” Do you mean – would you agree with me that “old and 

young” as you just used them don’t relate to age but in terms of amount of 

seniority. 

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A. (Plaintiff) Correct. 

(Plaintiff’s Deposition, Dkt. 27 at 14) Plaintiff goes on to state, “There were older employees 

that have less seniority. There are younger employees that have more seniority.” (Id. at 15) 

Later in the deposition, the following exchange occurred: 

Q. And just, again, so that we are clear, seniority relates to time with the company 

and not age? 

A. (Plaintiff) Hire date. 

Q. Hire date and not age, right? 

A. (Plaintiff) Yes. 

(Plaintiff’s Deposition, Dkt. 27 at 105) Plaintiff makes other statements on pages 16 to 20, as 

well as page 196, of his Deposition that are consistent with those quoted. The only conclusion to 

be drawn from these statements is that Plaintiff understood the proposed changes to the seniority 

system to disadvantage employees with longer periods of service, not greater age. Even if the 

Court accepted Plaintiff’s contention that he was discharged for his opposition to the seniority 

changes, rather than the accident, ORC § 4112 does not provide him a cause of action because it 

does not prohibit discrimination based on length of service with an employer. Thus, Defendant’s 

Motion for Summary Judgment on Plaintiff’s Count I is GRANTED. The claim is, hereby, 

DISMISSED. 

B. Wrongful Termination in Violation of Public Policy 

 The second count in Plaintiff’s Amended Complaint alleges that his termination violates 

public policy, citing ORC § 4112, ORC § 4113.51, and 29 USC §§ 157-158 as the sources of that 

policy. As discussed above, Plaintiff did not oppose any category of “unlawful discriminatory 

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practice” defined by ORC § 4112. Thus, there is no basis for finding his termination violates 

public policy as codified in that statute. 

 Plaintiff’s separate claim under 29 USC §§ 157-158, “the National Labor Relations Act,” 

was dismissed in this Court’s prior order for lack of jurisdiction. (Dkt. 13 at 7) While the 

National Labor Relations Act does memorialize a public policy in favor of protecting concerted 

activity by employees, “courts are not primary tribunals to adjudicate such issues. It is essential 

to the administration of the Act that these determinations be left in the first instance to the 

National Labor Relations Board.” San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 

244-55 (1959). Any claims Plaintiff has under the NLRA should be filed as charges with the 

NLRB. Merely citing the NLRA as an embodiment of public policy does not confer jurisdiction 

on this Court. 

 Thus, the sole remaining public policy ground for Plaintiff’s action is the alleged 

wrongful termination in violation of Ohio’s whistleblower statute, ORC § 4113.51. Although 

employment relationships in Ohio are generally governed by the common law doctrine of 

employment at will, Ohio law recognizes “a cause of action in tort for wrongful discharge in 

violation of public policy.” Wiles v. Medina Auto Parts, 773 N.E.2d 526, 529 (Ohio 2002) 

(plurality opinion). To establish this cause of action, Plaintiff must first prove “[t]hat [a] clear 

public policy existed and was manifested in a state or federal constitution, statute or 

administrative regulation, or in the common law . . .” Collins v. Rizkana, 652 N.E.2d 653, 657 

(Ohio 1995); Wiles, 773 N.E.2d at 529. Since ORC § 4113.51 is an Ohio statute, Ohio law 

determines whether it can support a common law action. Plaintiff correctly asserts that lower 

appellate courts in Ohio have allowed plaintiffs to bring common law suits for retaliatory 

termination in contravention of ORC § 4113.51, even where plaintiffs have failed to comply 

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fully with the procedures of that section. Krickler v. Brooklyn, 149 Ohio App.3d 97, 104 (2002). 

At the summary judgment stage, however, these plaintiffs must satisfy the burden of showing a 

prima facie case. The Ohio Supreme Court has recognized that such a prima facie case generally 

consists of four elements: 

1. That clear public policy existed and was manifested in a state or federal 

constitution, state or administrative regulation, or in the common law (the 

clarity element). 

2. That dismissing employees under circumstances like those involved in the 

plaintiff’s dismissal would jeopardize the public policy (the jeopardy 

element). 

3. The plaintiff’s dismissal was motivated by conduct related to the public 

policy (the causation element). 

4. The employer lacked overriding legitimate business justification for the 

dismissal (the overriding justification element). 

(emphasis in original) Collins v. Rizkana, 73 Ohio St.3d 65, 69-70 (1995) (internal citations 

omitted). Krickler confirms that Ohio does maintain a clear public policy against an employer 

taking retaliatory action against employees who report safety issues, satisfying the clarity 

element. The Plaintiff’s argument on the jeopardy element is less persuasive. It does not 

necessarily follow that “dismissing employees under circumstances like those involved in the 

plaintiff’s dismissal” jeopardizes Ohio’s workplace safety policies, particularly as Defendant 

claims it dismissed Plaintiff for Plaintiff’s own safety violations. Arguably, dismissing 

employees who cause accidents while not following safety procedures actually promotes the 

public policy embodied in ORC § 4113.51. Plaintiff has not satisfied his burden on the jeopardy 

element. Furthermore, the jeopardy inquiry is intertwined with the causation and overriding 

justification elements, on which Plaintiff falls short of meeting the burden. 

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 In 2011, the Court of Appeals of Ohio for Franklin County held that “[a]lthough 

causation and overriding justification are factual elements, ‘courts routinely grant summary 

judgment when the plaintiff fails to raise an issue of material fact with respect to either 

element.’” Sells v. Holiday Mgt. Ltd., 2011-Ohio-5794. Moreover, “upon the movant's showing 

the lack of causation and the existence of overriding justification through depositions, the 

[plaintiff] has the reciprocal burden to demonstrate causation and the lack of an overriding 

justification” to avoid summary judgment. Barnes v. Cadiz, 2002–Ohio–1534. 

 Here, depositions and documents show Defendant terminated the Plaintiff following an 

accident caused by the Plaintiff which injured a contractor. Plaintiff was suspended pending the 

investigation of that incident and subsequently terminated. Although Plaintiff makes much of 

the fact that his termination followed his report of a safety violation to his supervisor, Plaintiff 

ignores the fact that in the same conversation Plaintiff had to report the very accident Plaintiff 

caused. The fact that Plaintiff’s report of contractors’ safety violations only followed the 

accident could also give rise to an inference that Plaintiff sought to evade blame for his own 

actions, though the Court makes no such adverse inference against Plaintiff here, as the nonmovant. Nevertheless, the timing of Plaintiff’s termination, in factual context, undercuts at least 

as much as it supports his assertion that reporting a safety violation led to his termination. 

 More damagingly for Plaintiff, however, this Court has already found that, as a matter of 

law, while Ohio’s Supreme Court “has yet to resolve whether temporal proximity may support a 

prima facie case of retaliation without other supporting evidence, [] Ohio’s lower courts have 

concluded that ‘temporal proximity alone is insufficient to establish a prima facie case of 

retaliatory discharge.” McDonald v. Mt. Perry Foods, Inc., 2011 WL 3321470 (S.D. Ohio 2011) 

(internal citation omitted). Therefore, even if temporal proximity did clearly favor the Plaintiff – 

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which it does not – that factor, without more evidence that the discharge was motivated by 

Plaintiff’s concerted activity, is insufficient to defeat Defendant’s Motion. Plaintiff has adduced 

no such evidence. Defendant, in contrast, has adduced evidence that it relied on witness 

testimony of the accident in its investigation and only after concluding the Plaintiff caused the 

accident did Defendant terminate his employment. (Dkt. 25, Exh. B) Plaintiff’s effort to 

identify similarly situated employees who were not terminated is unavailing because none of the 

employees Plaintiff cites had injured another employee or contractor. Furthermore, in response 

to Defendant’s evidence demonstrating that it terminated the Plaintiff for causing the accident, 

Plaintiff has adduced no evidence that Defendant’s representatives who made the termination 

decision were even aware of Plaintiff’s safety report on the day of the accident. 

 Plaintiff’s counsel admitted at oral argument that according to Defendant’s policy, 

Plaintiff could be terminated for causing the accident irrespective of intent. Plaintiff’s counsel 

also acknowledged that the accident was a legitimate basis for the termination. Plaintiff’s claim 

that the termination resulted from his entire history of safety reports has little traction given that 

Defendant had remedied the violations reported by Plaintiff on numerous occasions and, in 

January of 2011 presented Plaintiff with a “Random Act of Safety Award.” (Dkt. 25, Exh. D at 

28-9) The record evidence shows Defendant had actually commended Plaintiff for his 

attentiveness to safety prior to this accident and that only after investigation showed Plaintiff 

caused the accident did Defendant terminate his employment. Plaintiff, for his part, can point 

only to the temporal proximity of his safety report to his termination and his own affidavit. As a 

matter of law, these are insufficient to create an issue of material fact as to whether Defendant’s 

stated reasons for terminating Plaintiff were merely pretextual. 

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 Thus, Defendant’s Motion for Summary Judgment on Count II of Plaintiff’s Amended 

Complaint is, hereby, GRANTED. 

V. CONCLUSION 

 For the reasons stated above, Defendant’s Motion for Summary Judgment is, hereby, 

GRANTED. Plaintiff’s Amended Complaint is, accordingly, DISMISSED. 

IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 Algenon L. Marbley 

 United States District Court Judge 

DATED: January 11, 2013 

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