[Cite as Robinson v. Quasar Energy Group, L.L.C., 2014-Ohio-4218.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 101062

JAMES ROBINSON

PLAINTIFF-APPELLANT 

vs. 

QUASAR ENERGY GROUP LLC, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-13-801848 

BEFORE: Rocco, J., Celebrezze, P.J., and E.T. Gallagher, J. 

RELEASED AND JOURNALIZED: September 25, 2014 
-iATTORNEY FOR APPELLANT

Douglas L. Winston 

Berger & Zavesky Co., L.P.A. 

1425 Rockefeller Building 

614 Superior Avenue, N.W. 

Cleveland, Ohio 44113 

ATTORNEY FOR APPELLEE 

Scott H. Schooler 

Forbes Fields & Associates 

700 Rockefeller Building 

614 Superior Avenue, N.W. 

Cleveland, Ohio 44113 
KENNETH A. ROCCO, J.: 

{¶1} Plaintiff-appellant James Robinson appeals from the trial court’s order 

granting summary judgment in favor of defendants-appellees Quasar Energy Group, LLC 

(“Quasar”) and Mel Kurtz (collectively, “the defendants”). Robinson asserted that the 

defendants unlawfully retaliated against Robinson and that he was wrongfully discharged 

in violation of public policy. Finding no merit to Robinson’s arguments on appeal, we 

affirm the trial court’s final judgment. 

{¶2} Although the record in this case is lengthy, we recite only those facts that are 

relevant to our resolution of the case. Because this case involves an appeal from a grant 

of summary judgment, our recitation of the facts is in the light most favorable to the 

nonmoving party, Robinson. See Gilbert v. Summit Cty., 104 Ohio St.3d 660, 

2004-Ohio-7108, 821 N.E.2d 564, ¶ 6. 

{¶3} Robinson, an African American, was employed by Quasar as a plant operator 

from September 20, 2011, until Quasar terminated his employment on September 14, 

2012. Quasar is an energy company that uses microorganisms to convert organic waste 

into energy. As a plant operator, Robinson had a variety of responsibilities, including, 

monitoring the operation of anaerobic digester plant pumps, motors, and other equipment; 

reading gauges, dials, and other instrumentation; maintaining and updating logs of plant 

operations; inspecting and cleaning machines and equipment; preparing daily data sheets; 

preparing reports; maintaining treatment facilities and grounds; and keeping the site clean 
and organized. Due to the nature of the job, a plant manager had to be willing to work 

overtime. 

{¶4} Robinson began his training at Quasar’s facility in Wooster, where he 

reported to Clemens Halene, Quasar’s Chief Operating Officer. Halene is white and is 

originally from Germany. On December 20, 2011, Halene sent an email to Quasar’s 

human resources administrator, Maureen DeCicco, stating that Robinson was a “[w]aste 

of time — he needs to go.” Halene testified that he reached this conclusion because, on 

one occasion, Robinson was unable to receive loads of feedstock.1

 

{¶5} Between November and December 2011, Robinson provided assistance in the 

construction of Quasar’s Collinwood plant in Cleveland. The plant became operational 

in January 2012, and Robinson became the plant operator at Collinwood. According to 

Robinson, once the plant became operational, Robinson was not required to obtain 

pre-clearance before working overtime. In contrast, on October 24, 2011, DeCicco sent 

a memo to Quasar employees stating that, effective that day, “All overtime MUST be 

authorized and approved.” 

{¶6} Robinson testified that over the course of his employment, Halene would call 

Robinson names like “ignorant” and “stupid” for forgetting to attach a document to an 

email or for not answering his phone. Robinson also testified that on one occasion, 

Halene told Robinson, “I don’t need you for your brain since you obviously don’t have 

one. I need you for your eyes, your hands, and your feet.” Robinson also stated that 

 1

Feedstock is the organic material that Quasar receives to convert into energy. 
although he stuck his hand out to Halene whenever Halene visited the plant, Halene 

refused to shake Robinson’s hand. But Robinson averred that on some of these 

occasions he observed Halene shaking hands with Robinson’s white coworkers. 

Robinson testified that he believed that Halene’s insults about Robinson’s lack of 

intelligence and refusal to shake his hand, were due to the fact that Robinson was black. 

But Robinson did not share these beliefs with anyone else at Quasar. 

{¶7} On June 1, 2012, Cam Rowley became Quasar’s operations manager. In 

this position, Rowley operated the various plants by interfacing with the plant operators 

and receiving various items from plant operators, including daily reports. At some point 

prior to August 2, 2012, Robinson talked to Rowley about how Halene had been insulting 

Robinson. But Robinson did not tell Rowley that he thought Halene’s treatment towards 

him was racially motivated. Rowley told Robinson that he would handle the situation. 

{¶8} On August 2, 2012, Halene confronted Robinson over the telephone about a 

daily report that Robinson had submitted the day prior. Robinson testified that Halene 

called Robinson a moron, imbecile, and stupid, stating that Robinson did not know how 

to send emails. Robinson asked Halene if he talked to all his employees this way or was 

he talking to him like that because he was black. According to Robinson, Halene 

responded, “I’m German. I’m German. We need to talk to [DeCicco],” and then he 

hung up the phone. 

{¶9} The next day, on August 3, 2012, DeCicco and Rowley met with Robinson to 

discuss the incident. Robinson testified that during this meeting, he told DeCicco that he 
did not think race was a factor in how Halene treated Robinson. Robinson said that he 

told DeCicco that race was not a factor because he was fearful of losing his job. 

{¶10} Robinson testified that after this conversation took place, Quasar president, 

Mel Kurtz, came to the Collinwood plant, telling Robinson, “I got a bone to pick with 

you” and “I cannot believe you played the race card.” According to Robinson, Kurtz told 

him that “when I found out that you played the race card, the first thing I said was for 

them to fire your ass but they told me that I can’t fire you, but what I’m going to do is I’m 

going to cut your overtime but I’m not going to pay you for working slow.” Robinson 

states that he and Kurtz were alone when this conversation took place. 

{¶11} DeCicco drafted a memorandum dated August 9, 2012, that was signed by 

herself, Robinson, Rowley, and Halene. The memorandum memorialized what took 

place on August 2nd. The memorandum stated that when Halene confronted Robinson 

on August 2nd about the daily report submitted by Robinson, Robinson explained to 

Halene that since he was no longer permitted to work overtime, he did not have the time 

to perform his job functions completely. According to the memorandum, Robinson did 

not think race was a factor in how Halene treated Robinson, but he did feel that Halene 

often spoke to him in a demeaning manner. The memorandum stated that, on July 30, 

2012, Robinson was given a performance review to complete where both he and Rowley 

would evaluate Robinson’s performance to date. The document was due on August 10, 

2012. 
{¶12} Robinson avers that subsequent to the incident on August 2nd, Rowley cut 

Robinson’s overtime hours. Robinson received a termination notice from DeCicco on 

September 14, 2012. On February 21, 2013, Robinson filed a complaint against the 

defendants alleging unlawful retaliation and a discharge in violation of public policy. 

On November 22, 2013, the defendants filed a motion for summary judgment that the trial 

court granted on February 3, 2014. 

{¶13} Robinson now appeals, setting forth three assignments of error for our 

review: 

I. The trial court erred in granting summary judgment on Robinson’s 

retaliation claim based upon his discharge as there were triable issues that 

Robinson engaged in protected activity and that activity was a determinative 

factor for his termination. 

II. The trial court erred in granting summary judgment on Robinson’s 

retaliation claim based upon a reduction of his working hours as appellees 

never sought summary judgment on this claim. 

III. The trial court erred in granting summary judgment on Robinson’s public 

policy claim. 

{¶14} Because this case involves an order granting summary judgment, we review 

the trial court’s order de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 

N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment should be granted if (1) 

there is no genuine issue as to any material fact; (2) the moving party is entitled to 

judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, 

and that conclusion is adverse to the party against whom the motion for summary 
judgment is made, who is entitled to have the evidence construed most strongly in his 

favor. Gilbert, 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, at ¶ 6. 

{¶15} The moving party carries the initial burden of setting forth specific facts that 

demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 

280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden, the court 

should not grant summary judgment. If the movant does meet its burden, summary 

judgment is warranted only if the nonmovant fails to establish the existence of a genuine 

issue of material fact. Id. at 293. 

{¶16} The first and second assignments of error are considered together because 

the analysis involved is the same. In both of these assignments of error Robinson 

contends that the trial court erred in granting summary judgment on his retaliation claim. 

{¶17} Robinson’s retaliation claim was brought pursuant to R.C. 4112.02(I), which 

provides that it is “an unlawful discriminatory practice * * * [f]or any person to 

discriminate in any manner against any other person because that person has opposed any 

unlawful discriminatory practice defined in this section * * * .”2

 A claimant can prove 

retaliation through direct evidence or circumstantial evidence. Nebozuk v. Abercrombie 

& Fitch Co., 10th Dist. Franklin No. 13AP-591, 2014-Ohio-1600, ¶ 39. If, as is the case 

here, direct evidence does not exist, the plaintiff must make a prima facie case by 

establishing that 

 2

This provision also prohibits retaliation on the basis of “ma[king] a charge, testif[ying], 

assist[ing], or participat[ing] in any manner in any investigation, proceeding, or hearing under sections 

4112.01 to 4112.07 of the Revised Code.” 
(1) []he engaged in a protected activity, (2) the defending party was aware 

that the claimant had engaged in that activity, (3) the defending party took 

an adverse employment action against the employee, and (4) there is a 

causal connection between the protected activity and adverse action. 

Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, ¶ 13. If 

the plaintiff makes a prima facie case for retaliation, “the burden then shifts to the 

employer to ‘articulate some legitimate, nondiscriminatory reason’ for its actions.” Id. at 

¶ 14, quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 

L.Ed.2d 668 (1973). Assuming the employer can satisfy this burden, the burden then 

shifts back to the plaintiff “to demonstrate ‘that the proffered reason was not the true 

reason for the employment decision.’” Id., quoting Texas Dept. of Community Affairs 

v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). 

{¶18} Because R.C. Chapter 4112 is Ohio’s counterpart to 42 U.S.C. 2000e 

(“Title VII”), we can apply federal authority to cases involving alleged violations of R.C. 

Chapter 4112. Chenevey v. Greater Cleveland Regional Transit Auth., 8th Dist. 

Cuyahoga No. 99063, 2013-Ohio-1902, ¶ 22, fn. 2 (citations omitted). 

{¶19} In the Title VII context, the United States Supreme Court set forth that the 

ordinary meaning of “oppose” is “‘to resist or antagonize * * *; to contend against; to 

confront; resist; withstand,’” or “‘to be hostile or adverse to, as in opinion.’” Crawford v. 

Metro. Govt. of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 276, 129 S.Ct. 846, 172 

L.Ed.2d 650 (2009), quoting Webster’s New International Dictionary 1710 (2d Ed.1958) 

and Random House Dictionary of the English Language 1359 (2d Ed.1987). Quoting 

from an EEOC guideline, the Crawford Court explained that “[w]hen an employee 
communicates to her employer a belief that the employer has engaged in * * * a form of 

employment discrimination, that communication virtually always ‘constitutes the 

employee’s opposition to the activity.’” (Emphasis sic.) Id. at 276. 

{¶20} A claimant may seek protection under the opposition clause regardless of 

whether the conduct or policy he was opposing was, in fact, unlawful. The person need 

“only have a good faith belief that the practice is unlawful.” Booker v. Brown & 

Williamson Tobacco Co., Inc., 879 F.2d 1304, 1313-1314 (6th Cir. 1989). But in 

opposing the practice, the employee must be clear that he views the conduct as 

discriminatory. “An employee may not invoke the protections of the Act by making a 

vague charge of discrimination.” Id. at 1313. 

{¶21} In the instant case, the trial court concluded, inter alia, that Robinson had 

failed to demonstrate that he had engaged in a protected activity, and thus, he had not 

established the first element of his prima facie case. Robinson argues to this court that 

he engaged in protected activity when he asked Halene whether he talked to white 

employees in the same way in which he spoke to Robinson. The defendants assert that 

Robinson did not engage in protected activity because his conduct was too vague. We 

agree. 

{¶22} While Robinson would have us examine his question to Halene in a vacuum, 

we cannot ignore Robinson’s subsequent conduct. The very next day, when both the 

human resources administrator and Robinson’s supervisor came to Robinson to discuss 

the matter, Robinson told them that he did not believe that Halene’s conduct towards 
him was based on Robinson’s race. Robinson also signed a memorandum stating that, 

although he disapproved of Halene’s treatment towards him, he did not believe that the 

poor treatment was racially motivated. While Robinson asked Halene one question 

insinuating that Halene spoke down to him because he was black, the evidence 

demonstrates that Robinson subsequently denied, both orally and in writing, that Halene 

had engaged in any racial discrimination. Robinson’s charge was, at best, vague. 

{¶23} Robinson argues that Kurtz’s comment to Robinson about playing “the race 

card” and threatening to cut overtime demonstrates that Robinson’s question to Halene 

was perceived as race based. Although Kurtz’s comment could be relevant evidence 

with respect to other elements of the prima facie case, it is not relevant to the issue of 

whether Robinson engaged in protected activity. We look at the employee’s conduct, 

not the employer’s conduct, in determining whether the employee engaged in a protected 

activity.3

 

{¶24} On the unique facts of this case, we cannot say that Robinson engaged in 

activity protected under R.C. 4112.02(I). Because Robinson has failed to make out a 

prima facie case of retaliation, we overrule the first and second assignments of error. 

 3

Although not relevant to our decision today, we also note that the timing of the comment 

leads one to question the meaning behind Kurtz’s words. Kurtz did not confront Robinson until after 

Robinson told DeCicco and Rowley that Halene’s comments were not racially motivated. It 

logically follows that Kurtz was angry at Robinson, not for questioning whether Halene was racist, 

but, rather, for falsely accusing Halene of racism. 
{¶25} In his third assignment of error, Robinson argues that the trial court erred in 

granting summary judgment on Robinson’s public policy claim. Finding no merit to 

Robinson’s argument, we overrule the assignment of error. 

{¶26} To establish a claim for wrongful discharge based on public policy, a 

claimant must show: 

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

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

clarity element); 2) That his dismissal jeopardized the public policy (the 

jeopardy element); 3) His dismissal was motivated by conduct related to the 

public policy (the causation element); and 4) The [employer] lacked 

overriding legitimate business justification for the dismissal (the overriding 

justification element). 

Alexander v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 95727, 2012-Ohio-1737, ¶ 

22. Robinson asserts that Quasar wrongfully discharged him from employment because 

he told DeCicco and Rowley during the August 3, 2012 meeting that he planned to 

consult an attorney. In granting summary judgment to the defendants on this claim, the 

trial court determined that the allegation was “based solely on speculation and not upon 

any evidence whatsoever.” 

{¶27} “A nonmoving party cannot avoid summary judgment by submitting an 

uncorroborated and self-serving affidavit that contradicts the party’s deposition 

testimony.” Rivers v. Otis Elevator, 8th Dist. Cuyahoga No. 99365, 2013-Ohio-3917, ¶ 

23. “‘If an unexplained conflict exists between a nonmoving party’s affidavit and 

deposition testimony, a trial court must disregard the conflicting statements in the party’s 
affidavit when deciding a motion for summary judgment.’” Id., quoting Zitron v. 

Sweep-A-Lot, 10th Dist. Franklin No. 09AP-1110, 2010-Ohio-2733, ¶ 27. 

{¶28} Robinson was asked in his deposition to explain what took place at the 

August 3, 2012 meeting. Robinson testified in detail about what transpired at this 

meeting, but he made no mention in his deposition that he told DeCicco and Rowley that 

he intended to obtain legal counsel. There is also no mention in the August 9th memo 

that Robinson had told DeCicco and Rowley that he would hire an attorney. After 

Robinson’s deposition, he submitted an affidavit stating that he told DeCicco and Rowley 

that he would obtain counsel. 

{¶29} Robinson does not explain this conflict between his deposition testimony 

and his affidavit. Accordingly, the trial court was correct in disregarding the conflicting 

statement made in Robinson’s affidavit. Because Robinson has not presented credible 

evidence that he ever told DeCicco and Rowley that he planned to obtain legal counsel, 

he cannot establish that his dismissal was motivated by conduct relating to a public 

policy. We, therefore, overrule the third assignment of error. For the aforementioned 

reasons, we affirm the trial court’s final judgment. 

It is ordered that appellees recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said 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. 

__________________________________________ 

KENNETH A. ROCCO, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

EILEEN T. GALLAGHER, J., CONCUR