[Cite as Drummond v. Paccar, Inc., 2011-Ohio-6249.]

 

IN THE COURT OF APPEALS OF OHIO 

 FOURTH APPELLATE DISTRICT 

 ROSS COUNTY 

DUANE ANTHONY DRUMMOND 

 : 

Plaintiff-Appellant, Case No. 11CA3226 

 : 

vs. 

 : 

PACCAR, INC., d.b.a. DECISION AND JUDGMENT ENTRY 

KENWORTH TRUCK CO. : 

 

Defendant-Appellee. : 

_________________________________________________________________ 

 APPEARANCES: 

COUNSEL FOR APPELLANT: James L. Mann, Mann & Preston, L.L.P., 18 East Second 

Street, Chillicothe, Ohio 45601 

COUNSEL FOR APPELLEE: Brian D. Hall, Porter, Wright, Morris & Arthur, L.L.P., 41 

South High Street, Stes. 2800-3200, Columbus, Ohio 

43215-6194 

_________________________________________________________________ 

CIVIL APPEAL FROM COMMON PLEAS COURT 

DATE JOURNALIZED: 11-30-11 

ABELE, J. 

{¶ 1} This is an appeal from a Ross County Common Pleas Court summary judgment in 

favor of PACCAR Inc., d.b.a. Kenworth Truck Co. (Kenworth), defendant below and appellee 

herein, on the claim brought against it by Duane Anthony Drummond, plaintiff below and 

appellant herein. Appellant assigns the following error for review: 
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“THE TRIAL COURT ERRED IN GRANTING APPELLEE’S 

MOTION FOR SUMMARY JUDGMENT.” 

{¶ 2} Appellant began working for Kenworth in 1987. In 2001, he sustained a lower 

back injury during the course of his employment and he could not work. Appellant returned to 

Kenworth on January 11, 2002, but did so under restrictions, including a restriction that he lift no 

more than fifteen pounds. Kenworth heard that appellant may be working at a local rodeo on the 

evening of February 8, 2002, and hired a private detective to investigate. At the rodeo, the 

detective videotaped appellant lifting children onto the back of animals. Appellant was 

thereafter terminated from his employment. 

{¶ 3} Appellant commenced the instant action on August 9, 2002 and alleged that 

Kenworth terminated him in retaliation for having filed a workers’ compensation claim. 

Appellant asked for damages in excess of $25,000. Kenworth denied liability and asserted a 

number of defenses. 

{¶ 4} On October 14, 2003, Kenworth requested summary judgment. Appellant 

thereupon filed a memorandum contra, to which Kenworth filed a reply. The trial court entered 

judgment on February 7, 2011, and granted Kenworth’s motion. This appeal followed. 

{¶ 5} Appellate courts review summary judgments de novo. Sutton Funding, L.L.C. v. 

Herres, 188 Ohio App.3d 686, 936 N.E.2d 574, 2010-Ohio-3645, at ¶59; Broadnax v. Greene 

Credit Service (1997), 118 Ohio App.3d 881, 887, 694 N.E.2d 167. In other words, appellate 

courts generally afford no deference whatsoever to trial court decisions, Kalan v. Fox, 187 Ohio 

App.3d 687, 933 N.E.2d 337, 2010-Ohio-2951, at ¶13; Hicks v. Leffler (1997), 119 Ohio App.3d 

424, 427, 695 N.E.2d 777, and instead, conduct our own, independent review to determine if 
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summary judgment is appropriate. Phillips v. Rayburn (1996), 113 Ohio App.3d 374, 377, 680 

N.E.2d 1279; McGee v. Goodyear Atomic Corp. (1995), 103 Ohio App.3d 236, 241, 659 N.E.2d 

317. 

{¶ 6} Summary judgment under Civ. R. 56(C) is appropriate when a movant shows that 

(1) no genuine issues of material fact exist, (2) he is entitled to judgment as a matter of law, and 

(3) after the evidence is construed most strongly in favor of the non-movant, reasonable minds 

can come to one conclusion and that conclusion is adverse to the non-moving party. See 

Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 927 N.E.2d 1066, 2010-Ohio-1027 at 

¶103; Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201. 

The moving party bears the initial burden to show that no genuine issues of material fact exist 

and that it is entitled to judgment as a matter of law. Vahila v. Hall (1997), 77 Ohio St.3d 421, 

429, 674 N.E.2d 1164; Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. If that 

burden is satisfied, the onus shifts to the non-moving party to provide rebuttal evidentiary 

materials. See Trout v. Parker (1991), 72 Ohio App.3d 720, 723, 595 N.E.2d 1015; Campco 

Distributors, Inc. v.. Fries (1987), 42 Ohio App.3d 200, 201, 537 N.E.2d 661. With these 

principles in mind, we turn our attention to the case sub judice. 

{¶ 7} Appellant’s claim is based on an alleged R.C. 4123.90 violation. This statute 

provides in pertinent part, that “[n]o employer shall discharge . . . 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.” In support of its position, Kenworth filed an 

affidavit from Human Resources Manager Karen Duffy, who attested (1) appellant had not even 
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filed a workers’ compensation claim for his back condition, and (2) in any event, the decision to 

terminate appellant sprang from the fact that he engaged in activities that violated the medical 

restrictions imposed upon him when he returned to work.1 This constituted sufficient 

evidentiary materials for Kenworth to satisfy its initial burden on summary judgment. 

Accordingly, the burden shifted to appellant to provide rebuttal materials to show that genuine 

issues of material fact do, in fact, exist that negate summary judgment and require a trial. After 

our review of the materials, however, we do not believe that appellant satisfied his burden. 

Human Resources Manager Sharon Duffy attested that appellant was dismissed for not following 

medical restrictions on how much weight he could lift. Appellant did not offer anything in his 

affidavit to refute the explanation that a legitimate reason supported his discharge. Appellant, 

however, does not really challenge that explanation, so much as he challenges his view of its 

overall fairness. We note that R.C. 4123.90 does not prohibit a termination that an employee 

may personally perceive as unfair; rather, the statute prohibits a termination in retaliation for 

filing a workers’ compensation claim. Thus, we agree with the trial court's conclusion that 

appellant's evidentiary materials do not create a genuine issue of material fact concerning the 

stated legitimate reasons that supported his discharge. 

{¶ 8} For all these reasons, we overrule appellant's assignment of error and affirm the 

trial court's judgment. 

JUDGMENT AFFIRMED. 

Kline, J., concurring. 

 1 The affiant further explained that appellant received “non-industrial short term disability benefits” due to 

his back condition. 
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{¶ 9} I respectfully concur in judgment only. Here, I agree that Drummond’s 

retaliatory-discharge claim does not survive summary judgment. But in making that 

determination, I would apply the burden-shifting framework utilized in Dover v. Carmeuse 

Natural Chemicals, Perry App. No. 10-CA-8, 2010-Ohio-5657, at ¶40-47; Ferguson v. SanMar 

Corp., Butler App. No. CA2008-11-283, 2009-Ohio-4132, at ¶13-21; and Slone v. Martin 

Marietta Energy Systems, Inc. (Oct. 5, 1998), Washington App. No. 97CA602. 

 JUDGMENT ENTRY 

It is ordered that the judgment be affirmed and that appellee recover of appellant costs 

herein taxed. 

The Court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court directing the Ross County 

Common Pleas Court to carry this judgment into execution. 

A certified copy of this entry shall constitute that mandate 

pursuant to Rule 27 of the Rules of Appellate Procedure. 

Harsha, P.J.: Concurs in Judgment & Opinion and the Concurring Opinion 

Kline, J.: Concurs in Judgment Only with Concurring Opinion 

For the Court 

BY: 

 Peter B. Abele, Judge 

 
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 NOTICE TO COUNSEL 

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the 

time period for further appeal commences from the date of filing with the clerk.