[Cite as Robinson v. Quasar Energy Group, L.L.C.,

.]

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 -i-

ATTORNEY 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.,

,

,

.

{¶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

Feedstock is the organic material that Quasar receives to convert into energy. 1 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.,

,

(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,

,

,

.

{¶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,

,

(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.

.

{¶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,

. 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,

,

,

. 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,

,

,

(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.’”

quoting Texas Dept. of Community Affairs

v. Burdine,

,

,

(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,

(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.,

,

,

(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.)

.

{¶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.,

(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.”

.

{¶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,

. 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,

. “‘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.’”

quoting Zitron v.

Sweep-A-Lot, 10th Dist. Franklin No. 09AP-1110,

, ¶ 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