Schneider

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL SCHNEIDER, ) CASE NO. 4:23-cv-02383

)

Plaintiff, )

)

v. ) JUDGE DAVID A. RUIZ

)

CORECIVIC OF TENN., LLC, )

) MEMORANDUM OPINION AND ORDER

Defendant. )

)

)

I. Procedural History

Defendant removed this matter from state court on the basis of diversity jurisdiction. (R. 1).

Thereafter, Plaintiff Michael Schneider filed a two-count Amended Complaint raising the

following claims against Defendant CoreCivic of Tennessee, LLC alleging: (1) worker’s

compensation retaliation and (2) wrongful discharge in violation of public policy: worker’s

compensation claim. (R. 7). Now pending is Defendant’s motion for summary judgment on

Plaintiff’s claims (R. 20), which Plaintiff has opposed. (R. 21). Defendant also filed a reply in

support. (R. 22).

II. Summary of Key Facts

This lawsuit stems from an incident that occurred during Plaintiff’s employment at

CoreCivic, resulting in an injury, subsequent resignation or termination, and a pursuit of a

workers’ compensation claim.

A . Background

According to Douglas Fender, Warden of the Northeast Ohio Correctional Center and an

employee of Defendant, CoreCivic provides correctional services under contract with the U.S.

Marshals Service and the Ohio Department of Rehabilitation and Corrections, and operates the

Northeast Ohio Correctional Center (NEOCC) in Youngstown, Ohio. (R. 20-3, PageID #182).

Plaintiff began working for CoreCivic as a correctional officer at NEOCC on or about

April 2, 2021. (R. 20-4, PageID #376; Exh. 2). He signed an offer letter that described the

position as at-will. Id. at PageID# 375 (“This offer does not constitute an actual or implied

contract for employment and your employment with CoreCivic can be terminated, with or

without cause, at any time at your discretion or at the discretion of either the company.”) As a

correctional officer, Plaintiff was responsible for maintaining order and supervising inmates. (R.

20-4, PageID #377; Exh. 3). CoreCivic provided Plaintiff with policies governing code of ethics,

retaliation, and workers’ compensation. (R. 20-4, PageID #383-405; Exhs. 5-11). During his

deposition, Plaintiff acknowledged receiving the Workers’ Compensation Benefits policy during

training, and did not have any questions about its contents. (R. 20-4, PageID #250-51, Schneider

Depo. at 68-69). He never filed any complaints or grievances during his employment. (R. 20-4,

PageID #250, 276; Schneider Depo. at 68, 94).

Plaintiff received three formal disciplinary notices during his tenure. The first occurred in

February 2022, when a supervisor reprimanded him for doing pullups with detainees rather than

overseeing security. (R. 20-4, PageID #264-65, Schneider Depo. at 83-83; Exh. 14, PageID#

415-16). A second occurred in July 2022, when another supervisor disciplined him for failing to

conduct a timely “watch tour” or security check. (R. 20-4, PageID #269-70, Schneider Depo. at

269-70; Exh. 15, PageID# 417). The third occurred in September 2022, when he received a

no tice for refusing to work a mandatory overtime shift to fill a vacancy. (R. 20-4, PageID #271-

74, Schneider Depo. at 89-92; Exh. 16, PageID# 418). Despite this history, Plaintiff’s job

responsibilities and schedule remained unchanged, and he never received a pay deduction. (R.

20-4, PageID #275-77, Schneider Depo. at 93-95). His supervisors never placed him on

probation or administrative leave, and he was not aware of any investigations pending against

him prior to the incident that preceded his resignation. Id.

B. Workplace Incident and Medical Treatment

On May 20, 2023, Plaintiff began his shift at 7:04 p.m., and he worked the Bravo 1-3 unit.

(R. 20-4, PageID #283, 292, Schneider Depo. at 101, 110). He described inmates in Bravo 1 as

“high custody,” which meant they were more dangerous while the other inmates in the remaining

areas were “just medium.” Id. at PageID# 292. While in Bravo 1, inmates began banging on their

cell doors and requested Plaintiff to transfer them to Bravo 3, indicating that was where they

were housed. (R. 20-4, PageID #297-98, 302, Schneider Depo. at 115-16, 120). Plaintiff opened

the door, allowing the inmates to go from Bravo 1 to Bravo 3. (R. 20-4, PageID# 302-303,

Schneider Depo. at 120-121). According to Douglas Fender, warden of the facility, he

“immediately started listening to the radio to hear what was going on and started reviewing the

camera footage to see what was taking place.” (R. 20-5, PageID# 496, Fender Depo. at 74).

While reviewing the camera footage shortly after the incident, he witnessed Plaintiff allow

inmates to go from one pod to another numerous times over a twenty minute span. (R. 20-5,

PageID# 496-98, Fender Depo. at 74-76). Fender testified that Plaintiff was not supposed to

allow that to happen, and that he had “no excuse for letting them back and forth.” Id. at PageID#

498.

Shortly after Plaintiff allowed the inmates to move from one pod to another, a physical

al tercation broke out between four inmates, who began stabbing one another. (R. 20-4, PageID#

303-04, Schneider Depo. at 121-22). Plaintiff was the only officer in the area; he screamed for

help via radio and activated his emergency “man down button.” (R. 20-4, PageID# 305-06,

Schneider Depo. at 123-24). Plaintiff attempted to intervene, and an inmate stabbed his wrist

during the struggle. (R. 20-4, PageID# 306, 314, Schneider Depo. at 124, 132). Plaintiff was not

carrying his assigned defensive spray or handcuffs at the time; he states the control officer would

not give him the equipment because he did not have any “chits,” which he described as “pictures

of himself” used to checkout equipment. (R. 20-4, PageID #307-08, Schneider Depo. at 125-26).

Once assistance arrived and the inmates were secured, Plaintiff proceeded to the medical

unit. (R. 20-4, PageID# 314, Schneider Depo. at 132). The nurse cleaned and bandaged his wrist,

and advised him to seek follow-up care due to concerns about bloodborne pathogens. (R. 20-4,

PageID #314-15, Schneider Depo. at 132-33). Plaintiff’s main concern was that he was exposed

to HIV. Id. Before he left, the nurse provided Plaintiff with workers’ compensation paperwork.

(R. 20-4, PageID #315-16, Schneider Depo. at 133-34). Plaintiff did not fill it out that night and

instead took the blank forms home. Id.

According to Plaintiff, photographs were taken of the injury to his wrist on the date of the

injury at 8:36 p.m. (R. 20-4, PageID# 289-90, Schneider Depo. at 107-08). The photographs

were taken in the captain’s office by Sergeant McCoy. Id. at PageID# 102, 290. Plaintiff testified

that nobody asked him any questions about the incident at that time, nor did he ask any

questions. Id. at PageID# 290-91. Nobody brought up the possibility of discipline. Id. at PageID#

291. Warden Fender asked him to write an incident report. Id. Plaintiff testified that he

completed an incident report and gave it to Lieutenant Birch. Id. at PageID# 291.

Plaintiff left the facility at 2:23 a.m. on May 21, 2023; he went home1 and showered, and

then went to an urgent care to get bloodwork done. (R. 20-4, PageID# 316-17, Schneider Depo.

at 135-36). According to the urgent care treatment notes, Plaintiff had a “superficial laceration

with broken skin” of the right forearm with “no active bleeding or signs of infection.” (R. 21-1,

PageID# 824, Exh. A). Plaintiff received a tetanus shot and a prescription for HIV-prevention

medication. (R. 20-4, PageID #318-19, Schneider Depo. at 136-37). He did not bring the

workers’ compensation paperwork to the urgent care facility. (R. 20-4, PageID #319, Schneider

Depo. at 136-37). According to Plaintiff, he did not incur out-of-pocket costs, did not receive

ongoing treatment (neither physical nor psychological), and did not experience lasting physical

limitations that prevented him from looking for work. (R. 20-4, PageID #334-35, Schneider

Depo. at 153-53).

Warden Fender testified that by May 21, 2023, prior to Plaintiff’s employment ending with

Defendant, he was aware that Plaintiff had sought medical treatment and that he had a potential

workers’ compensation claim. (R. 20-5, PageID# 505-06, Fender Depo. at 83-84).

C. Disputed Meeting and Resignation

The day after the incident, on May 21, 2023, at 11:51 a.m., Warden Fender emailed his

supervisor to request that Plaintiff be temporarily reassigned and an investigation occur into the

incident on May 20. (R. 20-5, PageID# 538, Fender Depo. at 116; R. 20-5, Exh. 3, PageID#

618). That same day, at Fender’s request, Assistant Warden Richard Pfifer contacted Plaintiff

1 Plaintiff indicated to the Warden that it would be difficult to turn the keys with his injured

wrist, and Warden Fender told him to go home. (R. 20-4, PageID #288, Schneider Depo. at 106).

He clocked out at 2:23 a.m. on May 21. (R. 20-4, PageID #280-81, 283, Schneider Depo. at 98-

99, 101). No one discussed discipline with him that night. (R. 20-4, PageID #291, Schneider

Depo. at 109).

an d asked him to return to the facility to complete an incident report. (R. 20-6, PageID# 686-87,

692, 743, Pfifer Depo. at 34-35, 40, 91).

According to Plaintiff, he returned to the facility on May 22, 2023, because Assistant

Warden Pfifer told him to come in and talk about his injuries. (R. 20-4, PageID# 320-23,

Schneider Depo. at 138-41). Upon his arrival, Pfifer told him, “[W]e want you to resign or you

can get fired and it will be hard for you to get a job ever again in corrections.” (R. 20-4, PageID

#321-22, Schneider Depo. at 139-40). Plaintiff testified that he asked to make a phone call, to

which Pfifer replied in the negative. Id. at PageID# 322.2 Plaintiff also stated that Pfifer directed

him to write a statement explaining why he lacked handcuffs and pepper spray during the

altercation. (R. 20-4, PageID #327-28, Schneider Depo. at 145-46). Plaintiff finished typing out

his statement, which was printed out, but he was not asked to sign it. (R. 20-4, PageID# 328,

Schneider Depo. at 146). He was at the facility for about two hours total that day. Id. at PageID#

324.

Plaintiff told Pfifer he was resigning after Pfifer had returned from making a phone call. (R.

20-4, PageID# 330, Schneider Depo at 148). Approximately ten minutes later, he was escorted

out of the building by Unit Manager Michelle Haas. (R. 20-4, PageID #329-30, Schneider Depo.

at 147-48). He did not bring the workers’ compensation paperwork with him to the meeting with

Pfifer and never submitted a claim during his employment. (R. 20-4, PageID# 331-33, Schneider

Depo. at 149-51).

Pfifer recalled the events differently. He testified that he told Plaintiff that CoreCivic

2 Plaintiff’s deposition testimony here is unclear, as it appears he’s stating that he was on the

phone with Pfifer yet talking to him in person at the same time. (R. 20-4, PageID# 322,

Schneider Depo. at 140).

ne eded a written statement about the incident, and while that was transpiring, he had to leave his

office and Unit Manager Haas remained with him. (R. 20-6, PageID# 693-94, Pfifer Depo. at 41-

42). Upon his return, Pfifer indicates Plaintiff asked him, unsolicited, whether he should resign,

to which Pfifer responded, “that’s up to you.” (R. 20-6, PageID #694, Pfifer Depo. at 42).

According to Pfifer, he only asked Plaintiff to provide a statement, which he never received, and

left the room several times to handle unrelated work issues. (R. 20-6, PageID #694-697, Pfifer

Depo. at 42-45). Pfifer stated that while he was away, Haas remained with Plaintiff (R. 20-6,

PageID #704, Pfifer Depo. at 52). Pfifer indicated he never recommended that Plaintiff be

terminated. Id.

A termination checklist listed Plaintiff as having voluntarily resigned, but not eligible for

rehire due to negligence in the workplace. (R. 20-5, PageID# 620, Exh. 5). Fender testified that

he could not recall whether he or Pfifer directed HR to classify the separation as a voluntary

resignation. (R. 20-5, PageID #550-51, Fender Depo. at 128-29). He did indicate that while an

investigation had not been completed, resignation while an employee was under investigation is

a factor considered in determining whether an individual is eligible for rehire. Id. PageID# 553-

54. On May 22, 2023, Pfifer sent an email indicating that Plaintiff “reported to the facility to

complete a 5-1C in regards to an incident that occurred on Saturday 5/20/23. While filling out

the 5-1C Michael Schneider stated to A.W. Pfifer that he was resigning his position. Please be

advised he stated this to Unit Manager Haas that he was resigning as well about 20 minutes

later.” (R. 20-5, PageID# 621, Exh. 6). Plaintiff never contacted the facility to ask about his job

status and never received a termination letter. (R. 20-4, PageID #331-32, Schneider Depo. at

148-49).

Defendant concedes that the Court must accept as true Plaintiff’s testimony that Pfifer told

hi m he should resign or get fired, which would make it difficult for Plaintiff to work in

corrections in the future, but notes it will dispute this allegation at trial. (R. 20-1, PageID# 169,

n. 6).

III. Summary Judgment Standard

Summary judgment is appropriate only if the moving party demonstrates there is no

genuine dispute of material fact on an issue that would entitle the movant to judgment as a matter

of law. Fed.R.Civ.P. 56(a). All evidence must be viewed in the light most favorable to the

nonmovant, White v. Baxter Healthcare Corp., 533 F.3d 381, 390 (6th Cir. 2008), and all

reasonable inferences are drawn in the non-movant’s favor. Rose v. State Farm Fire & Cas. Co.,

766 F.3d 532, 535 (6th Cir. 2014). A factual dispute is only genuine, however, if a reasonable

jury could resolve the dispute and return a verdict in the non-moving party’s favor. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A disputed fact

is material only if its resolution might affect the outcome of the case under the governing

substantive law. Rogers v. O'Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013).

IV. Law and Analysis

A. Count One: Workers’ Compensation Retaliation

In Count One of the Amended Complaint, Plaintiff raises a claim for workers’

compensation retaliation. (R. 7, PageID# 75-76). Defendant moved for summary judgment on

Count One, arguing that Plaintiff’s claim fails for three reasons: (1) Plaintiff never filed a

workers’ compensation claim during his employment at CoreCivic; (2) Plaintiff voluntarily

resigned from CoreCivic; and (3) Plaintiff did not raise a retaliation claim until after the statute

of limitations expired. (R. 20-1, PageID# 171).

Plaintiff’s brief in opposition failed to offer any response or defense regarding the

workers’ compensation retaliation claim he raised in Count One, focusing solely on his public

policy claim in Count Two. (R. 21, PageID# 816-822). Notably, Plaintiff does not address

Defendant’s statute of limitations argument, which is dispositive as to the viability of the

retaliation claim. As stated recently by the Sixth Circuit Court of Appeals, “[w]hen a litigant fails

to address a claim in response to a motion for summary judgment, that claim is deemed

abandoned or forfeited.” Bennett v. Hurley Med. Ctr., 86 F.4th 314, 324 (6th Cir. 2023) (citations

omitted). “To address an argument in the district court, a litigant must provide some minimal

argumentation in favor of it.” Id. (citing United States v. Huntington Nat. Bank, 574 F.3d 329,

331 (6th Cir. 2009); see also Solidstrip Inc. v. U.S. Tech. Corp., 723 F. Supp. 3d 593, 601 (N.D.

Ohio 2024) (“[A] plaintiff is deemed to have abandoned a claim when a plaintiff fails to address

it in response to a motion for summary judgment.”) (quoting Brown v. VHS of Mich., Inc., 545

Fed. App’x 368, 372 (6th Cir. 2013) (collecting cases)). Accordingly, Plaintiff’s workers’

compensation retaliation claim in Count One is dismissed as abandoned.

Alternatively, even if the Court does not construe the retaliation claim in Count One as

abandoned or forfeited, the Court finds merit in Defendant’s argument that the claim is untimely.

Plaintiff’s employment with Defendant ended on or about May 21, 2023, regardless of whether

he resigned or was constructively terminated. (R. 20-5, PageID# 620; Exh. 5). Plaintiff’s initial

state court complaint, which was removed to this Court, only contains a claim for wrongful

discharge in violation of public policy. (R. 1-1, PageID# 14-20). Plaintiff first asserted his

workers’ compensation retaliation claim pursuant to O.R.C. § 4123.90 in the Amended

Complaint filed on February 12, 2024, which is 267 days after his separation from his

employment with Defendant. (R. 7, PageID# 75-76). Pursuant to the explicit language of O.R.C.

§ 4123.90, an action under said statute “shall be forever barred unless filed within one hundred

eighty days immediately following the discharge, demotion, reassignment, or punitive action

taken” and that “no action may be instituted or maintained unless the employer has received

written notice of a claimed violation of this paragraph within the ninety days immediately

following” the adverse employment action.

Plaintiff herein plainly exceeded the 180-day statute of limitations. Accordingly, the

claim is time-barred. Therefore, Count One is alternatively dismissed as time barred.

B. Count Two: Wrongful Termination in Violation of Public Policy

In Count Two, Plaintiff asserts a cause of action for a wrongful discharge in violation of

public policy. (R. 7, PageID# 76-77). To prevail on a claim for wrongful termination in violation

of public policy, a plaintiff must establish the following elements:

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 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).

Collins v. Rizkana, 652 N.E.2d 653, 73 Ohio St.3d 65, 69 (Ohio 1995) (quoting Painter v.

Graley, 639 N.E.2d 51, 70 Ohio St.3d 377, 384 (Ohio 1994). This Court will refer to this as the

“Collins test.”

The Amended Complaint invoked the Ohio Supreme Court’s decision in Sutton v. Tomco

Machine, 950 N.E.2d 938, 129 Ohio St. 3d 153, 163 (Ohio 2011), which states that “we

re cognize a common-law tort claim for wrongful discharge in violation of public policy when an

injured employee suffers retaliatory employment action after an injury but before he or she files,

institutes, or pursues a workers’ compensation claim.” (R. 7, PageID# 76-77, ¶80).

In Ohio, the common-law doctrine of employment at will governs employment

relationships. The act of terminating an at-will employee’s relationship with an

employer usually does not give rise to an action for damages. Collins v. Rizkana

(1995), 73 Ohio St.3d 65, 67, 652 N.E.2d 653; Mers v. Dispatch Printing Co.

(1985), 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d 150, paragraph one of the

syllabus. However, if an employee is discharged or disciplined in contravention of

a clear public policy articulated in the Ohio or United States Constitution, federal

or state statutes, administrative rules and regulations, or common law, a cause of

action for wrongful discharge in violation of public policy may exist as an

exception to the general rule. Painter v. Graley (1994), 70 Ohio St.3d 377, 639

N.E.2d 51, paragraph three of the syllabus; Greeley v. Miami Valley Maintenance

Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981, paragraph one of the

syllabus.

Dohme v. Eurand Am., Inc., 130 Ohio St. 3d 168, 171, 956 N.E.2d 825, 828–29 (Ohio 2011).

This Court need not address the first two elements of the Collins test, as the Ohio

Supreme Court has already decided a clear public policy exists against terminating employees

for filing workers’ compensation claims, and that terminating an employee before he institutes a

workers’ compensation claim would jeopardize the public policy. Thus, the only remaining issue

is whether Plaintiff’s alleged dismissal was motivated by conduct related to the public policy—

that is, was it motivated by the anticipated workers’ compensation claim (the causation element).

Defendant’s brief in support of summary judgment asserts that it is entitled to judgment in its

favor because: (1) Plaintiff voluntarily resigned; and (2) Plaintiff ostensibly cannot establish

causation between his workplace injury and separation of employment. (R. 20-1, PageID# 177-

179).3

3 Defendant has not argued that it had an overriding legitimate business justification for

Plaintiff’s dismissal, and that element of the Collins test is moot.

Plaintiff presents a public policy tort claim in Count Two based on the theory that his

separation from employment constituted a constructive discharge, and that the discharge was

retaliatory in light of his anticipated workers’ compensation claim. (R. 7, PageID# 76-77, ¶¶78-

85). The Court addresses the claim in two parts: first, whether Plaintiff has presented sufficient

evidence that would allow a reasonable trier of fact to find: (1) that his employment was

terminated under a constructive discharge theory; and (2) sufficient evidence of a nexus between

the alleged constructive discharge and the potential workers’ compensation claim.

1. Constructive Discharge

Plaintiff argues he was constructively discharged after giving notice of his pursuit of

worker’s compensation claims. (R. 21, PageID# 818, 821). “Courts generally apply an objective

test in determining when an employee was constructively discharged, viz., whether the

employer’s actions made working conditions so intolerable that a reasonable person under the

circumstances would have felt compelled to resign.” Mauzy v. Kelly Servs., 75 Ohio St. 3d 578,

588-89, 664 N.E.2d 1272, 1280-81 (Ohio 1996). “A claim of constructive discharge is in essence

a claim that the employer’s conduct was so egregious that the employee was ‘forced . . . to sever

the employment relationship involuntarily.’” Helms v. Fischer Mgmt., 2005 U.S. Dist. LEXIS

27259, at *19 (S.D. Ohio Nov. 10, 2005) (quoting Risch v. Friendly’s Ice Cream Corp., 136

Ohio App.3d 109, 112, 736 N.E.2d 30, 32 (1999)).

Defendant, relying on cases that cite the Sixth Circuit Court of Appeals’ decision in

Logan v. Denny’s, Inc., 259 F.3d 558, 570 (6th Cir. 2001), argues that the Sixth Circuit has

adopted seven factors to aid in the determination of whether the employer created working

conditions that a reasonable person would find intolerable: “(1) demotion; (2) salary reduction;

(3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5)

re assignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by

the employer calculated to encourage the employee to resign; or (7) offers of early retirement or

continued employment on less favorable terms.” (R. 22, PageID# 847, citing Phillips v. Am. Red

Cross Blood Servs., Case No. 3:20-cv-01714, 2023 U.S. Dist. LEXIS 172378, *18, 2023 WL

6290648

(N.D. Ohio Sept. 27, 2023) (citing Logan 259 F.3d at 69 (6th Cir. 2001) (adopting the Fifth

Circuit’s approach in Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000)).

Defendant argues that “[f]rom the record, it is undisputed that Plaintiff has presented no

evidence of a demotion, salary reduction, job responsibility reduction, reassignment [of] work,

reassignment of supervisor, badgering, harassment, or humiliation, or an offer of early retirement

or continued employment on less favorable terms.” (R. 22, PageID# 847, citing Schneider Depo.

Tr. 65, 93-94). Defendant is correct that the record does not contain any evidence that falls into

any of these categories, but Defendant overlooks the Logan court’s cautionary language that the

seven factors are a “non-exclusive list of factors.” 259 F.3d at 570.

There is, however, evidence, that the Court must construe in Plaintiff’s favor, as the non-

moving party, that the Assistant Warden stated: “we want you to resign or you can get fired and

it will be hard for you to get a job ever again in corrections.” (R. 20-4, PageID #321-22,

Schneider Depo. at 139-40).4 Defendant asserts that even such a termination ultimatum is

insufficient, and relies on Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 815 (6th Cir.

2020) for the proposition that a plaintiff cannot establish constructive discharge stemming from a

4 In addition, a jury, as the finder of fact, may find Plaintiff’s testimony less than credible, and

may credit the conflicting testimony by Pfeifer that it was Plaintiff who asked if he should

resign, but this Court, at the summary judgment stage, cannot make credibility determinations.

pl aintiff’s allegation that he was threatened with termination because such a threat is not

“objectively intolerable.” (R. 22, PageID# 848). Defendant misapplies the holding of Tchankpa,

as that case is distinguishable on the facts.5 Here, Plaintiff was not threatened with termination if

he failed to comply with certain work-related requirements, as was the plaintiff in Tchankpa,

rather, if Plaintiff is to be believed, he was threatened with termination if he did not resign.

The facts presented to this Court fall more closely with cases identified by the Fifth

Circuit Court of Appeals as constituting a constructive discharge.

[A] plaintiff may be constructively discharged if the employer gives the employee

an ultimatum to quit or be fired. See 339 Faruki v. Parsons S.I.P., Inc., 123 F.3d

315, 319 (5th Cir. 1997); Jenkins v. State of La., Through Dep’t of Corrs., 874

F.2d 992, 996 (5th Cir. 1989); Davis v. City of Grapevine, 188 S.W.3d 748, 766

(Tex. App. 2006). However, in these ultimatum cases, courts have required

something beyond the employee’s subjective belief that termination was

inevitable. For example, in Davis, the plaintiff presented evidence that his

managers informed him that “it would be in his best interest if he decided to

resign rather than be terminated because future employers may ask the City

whether Davis resigned or was terminated.” Davis, 188 S.W.3d at 766. Likewise,

in Faruki, the plaintiff presented testimony that his supervisor had told him he

should find another job, and that he had one week before he would be placed on

indefinite unpaid leave. Faruki, 123 F.3d at 319; see also Stephens v. C.I.T.

Grp./Equip. Fin., Inc., 955 F.2d 1023, 1027–28 (5th Cir. 1992) (holding that

employee “reasonably could have believed that his demotion was a harbinger of

dismissal” where there was a demotion, continuing limitations on the employee’s

salary and responsibility, and a supervisor repeatedly asked him whether he was

going to quit his job).

5 The Tchankpa court explained that defendant allegedly told the plaintiff that “it might fire him

if he violated its time off policy by seeking treatments during work hours. And when Tchankpa

insisted on working from home three days per week, [defendant] reminded him that he could quit

if he didn’t like his job’s requirements. So he argues that these facts show [defendant] pressured

him to leave. But [defendant] only insisted that Tchankpa accept its denial of his work-from-

home request…. So even forcefully reiterating this lawful denial is not a threatened termination.”

951 F.3d at 815.

P erret v. Nationwide Mut. Ins. Co., 770 F.3d 336, 338–39 (5th Cir. 2014). The Sixth Circuit

Court of Appeals made similar observations concerning constructive discharge the same year:

We are ordinarily faced with a situation in which the employee only alleges that

she resigned because of discriminatory harassment, and in such cases, we require

the plaintiff to demonstrate a discriminatory work environment even more

egregious than the high standard for hostile work environment.

But that is not the only method of demonstrating constructive discharge. When an

employer acts in a manner so as to have communicated to a reasonable employee

that she will be terminated, and the plaintiff employee resigns, the employer’s

conduct may amount to constructive discharge.

Laster v. City of Kalamazoo, 746 F.3d 714, 728 (6th Cir. 2014) (quoting E.E.O.C. v. University

of Chicago Hospitals, 276 F.3d 326, 331-32 (7th Cir. 2002). As the Court of Appeals noted, “[i]n

other words, constructive discharge also occurs where, based on an employer’s actions, ‘the

handwriting was on the wall and the axe was about to fall.’” Laster, 746 F.3d at 728 (citing Univ.

of Chicago Hosp., 276 F.3d 326, 332 (7th Cir. 2002) (internal quotations and citation omitted).

The Court agrees with the Defendant that Plaintiff has not shown he was constructively

discharged through evidence of any of the intolerable-work-condition factors identified by the

Logan court. Moreover, construing the evidence in light most favorable to Plaintiff and,

therefore, proceeding as though he was told he could resign or be terminated, the Court does not

find such termination ultimatum objectively unreasonable and intolerable, but concludes that

Plaintiff had a reasonable choice considering the apparent performance deficiencies and

aforementioned factual background. Thus, the Court does not find that Plaintiff’s working

conditions became so intolerable that a reasonable person would have felt forced into an

involuntary resignation. Id.

While that could end the analysis, the Court proceeds to the next step arguendo as if

Plaintiff’s deposition testimony and the aforementioned facts creates a material issue of whether

he was constructively discharged. But as explained next, his case still fails because Plaintiff

presents no evidence connecting such discharge with a potential worker’s compensation claim.

2. Nexus Between Discharge and Potential Workers’ Compensation

Even if Plaintiff has presented sufficient evidence that he was discharged, he must still

show that his discharge was connected to a potential workers’ compensation claim in order to

demonstrate a material issue of fact to overcome Defendant’s motion for summary judgment. In

Sutton v. Tomco Machining, Inc., the Ohio Supreme Court, while recognizing a public policy tort

wrongful discharge prior to the filing of a workers’ compensation claim, indicated that “[t]o

establish causation [for such a claim], a plaintiff who alleges wrongful discharge in violation of

public policy as expressed in R.C. 4123.90 must prove that the adverse employment action

was retaliatory, which requires proof of a nexus between the adverse employment action

and the potential workers’ compensation claim.” 950 N.E.2d at 949 (emphasis added).

To the extent Plaintiff’s brief suggests that it is inappropriate to address the causation

element at the summary judgment stage (R. 21, PageID# 821), the Court disagrees. While the

Sutton Court expressly declined to evaluate causation at the pleading stage, it affirmed that a

plaintiff must show by a preponderance of the evidence that there is a causal connection between

the discharge and the workers’ compensation claim. Sutton, 129 Ohio St.3d at 157 (“[T]he

retaliatory nature of the discharge and its nexus with workers’ compensation must be established

by a preponderance of the evidence.”) Courts have frequently addressed whether genuine issues

of material fact were present to satisfy the causation element without noting any impropriety by a

court for doing so. See, e.g., Himmel v. Ford Motor Co., 342 F.3d 593, 599 (6th Cir. 2003)

(overturning grant of summary judgment in defendant’s favor because the plaintiff “established a

genuine issue of material fact as … causation” but voicing no disapproval of district court’s

de cision to engage the issue); accord Whitaker v. First Energy Nuclear Operating Co., 2013 WL

4792860, 2013-Ohio-3856, ¶17 (Ohio Ct. App. Sept. 6, 2013) (“To avoid summary judgment [on

a public policy tort claim], however, the employee must establish a genuine issue of material fact

as to each of the four elements.”) (emphasis added); Jones v. Natural Essentials, Inc., 2022-

Ohio-1010, ¶ 60, 187 N.E.3d 594, 606 (Ohio Ct. App. Mar. 28, 2022) (“In the present case, the

plaintiffs have failed to establish the existence of a genuine issue of material fact with respect to

causation” as it relates to their public policy workers’ compensation retaliatory discharge claim.)

This case is well beyond the pleading stage and the parties have conducted significant

discovery. Thus, Plaintiff must point to evidence that establishes a genuine issue of material fact

with respect to causation. Without evidence capable of establishing a nexus between the

protected activity and the adverse action, summary judgment is appropriate. “[T]he law requires

the plaintiff to show purposeful retaliation; that is, a specific intent to discharge an employee for

engaging in the protected act of filing a workers’ compensation claim. If, at the time of

employment termination, the person making the decision to terminate is unaware that the

employee may be filing a workers’ compensation claim, the discharge cannot be retaliatory in

nature.” Glenn v. Hose Master, L.L.C., 2016-Ohio-1124, ¶ 32, 61 N.E.3d 609, 617 (Ohio Ct.

App. Mar. 17, 2016). The burden of establishing retaliatory motive in a workers’ compensation

claim “remains at all times on the employee.” Bertrand v. Collinwood Servs. Ctr., No. 58508,

1991 WL 81487, 1991 Ohio App. LEXIS 2278 at *8 (Ohio Ct. App. May 16, 1991); accord

Nance v. Lima Auto Mall, Inc., 2019 Ohio Misc. LEXIS 7627 at *5 (Ohio Ct. Com. Pl. Aug. 14,

2019). Furthermore, the Sutton decision specifically indicated that “no presumption of retaliation

arises from the fact that an employee is discharged soon after an injury.” 129 Ohio St.3d at 157.

Having reviewed those portions of the record cited by the parties, Plaintiff fails to

id entify any statements, documents, or conduct by Defendant indicating a retaliatory motive

connected to a possible workers’ compensation claim. On the same day that Plaintiff suffered a

workplace injury, a nurse working at the facility provided Plaintiff with worker’s compensation

forms—an action that does not suggest any effort to interfere with the exercise of protected

rights. (R. 20-4, PageID# 316, Schneider Depo. at 133-134).

Plaintiff’s injury was not severe on its face, with the most significant concern being

whether he had contracted any bloodborne pathogens from a minor cut. (R. 20-4, PageID #314-

15, Schneider Depo. at 132-33). According to the urgent care treatment notes, Plaintiff had a

“superficial laceration with broken skin” of the right forearm with “no active bleeding or signs of

infection.” (R. 21-1, PageID# 824, Exh. A). Although Defendant’s employees may not have been

aware of this treatment note, pictures were taken the day the incident by Defendant’s employees

so that Defendant would have been aware of the minor severity of the injury. (R. 20-4, PageID#

289-90, Schneider Depo. at 107-08). While the Court does not find the severity of Plaintiff’s

injury dispositive in any way, a severe or debilitating injury may be more likely to raise an

inference that an employer was attempting to evade responsibility for a costly injury by

preemptively terminating an employee.

Plaintiff also did not bring his workers’ compensation paperwork to the meeting with

Pfifer the day he resigned, voluntarily or otherwise. (R. 20-4, PageID# 331, Schneider Depo. at

149). Plaintiff’s assertion that he called on May 21, 2023, so that “he could get assistance with

his worker’s compensation paperwork” is unsupported by the record, and Plaintiff’s citation to

the Complaint is insufficient at this stage of the pleadings to establish any fact. (R. 21, PageID#

811, citing Compl. at ¶¶47-48, n. 36). Thus, Plaintiff has no evidence that Defendant was even

aware that Plaintiff intended to actively seek to file a workers’ compensation claim. While

W arden Fender was aware that Plaintiff had sought medical treatment and that he had a potential

workers’ compensation claim (R. 20-5, PageID# 505-06, Fender Depo. at 83-84), the Court finds

this alone, even coupled with the proximity of Plaintiff’s termination, insufficient to create an

issue for the trier-of-fact.

As stated above, Plaintiff’s claim arises under Ohio law and no presumption of retaliation

arises from the fact that an employee is discharged soon after an injury. Although both Fender

and Pfifer knew about the injury and the workers’ compensation paperwork, knowledge alone

does not establish causation. See Rowe v. Hoist & Crane Serv. Grp., 2022 Ohio App. LEXIS

2972, 2022 WL 4099938, 2022-Ohio-3130, ¶¶ 46-50 (Ohio Ct. App. Sept. 8, 2022) (affirming

summary judgment for employer—noting the allegation that an employer terminated an

employee to prevent a workers’ compensation is merely speculative). Plaintiff’s speculation

about why Defendant asked him to resign does not suffice as evidence. Id.

Assuming arguendo that Plaintiff was indeed constructively discharged, there is ample

evidence in the record of a nexus between his discharge and the perceived shortcomings in

Plaintiff’s performance of his job. As noted above, Plaintiff had received three formal

disciplinary notices during his tenure before the May 20, 2023 incident. It is undisputed that

Plaintiff opened the door that allowed inmates to go from Bravo 1 to Bravo 3—an action that

resulted in the inmate melee and an action that Warden Fender described as inexcusable after

viewing video footage before Plaintiff’s resignation. (R. 20-4, PageID# 302-303, Schneider

Depo. at 120-121; R. 20-5, PageID# 496-98, Fender Depo. at 74-76). Discovery has also yielded

an email from the day after the incident, but before Plaintiff’s resignation, where Warden Fender

emailed his supervisor to request that Plaintiff be temporarily reassigned and an investigation

occur into the May 20 incident. (R. 20-5, PageID# 538, Fender Depo. at 116; R. 20-5, Exh. 3,

Pa geID# 618). Warden Fender thereafter requested Assistant Warden Pfifer to contact Plaintiff

so he could complete an incident report. (R. 20-6, PageID# 686-87, 692, 743, Pfifer Depo. at 34-

35, 40, 91). This Court declines to draw any conclusion or inference that Plaintiff’s employment

actions amounted to misconduct. Rather, the Court merely observes that Plaintiff has cited no

evidence in the record suggesting that it was his workplace injury that animated Defendant or its

agents versus these same individuals’ assessments, premature or otherwise, of Plaintiff’s role in

the May 20 incident.

Plaintiff’s own testimony underscores the lack of a nexus between his injury and the

alleged discharge. He testified that when he arrived for the meeting with Assistant Warden

Pfifer, “he didn’t even ask me about my wound at all or my injuries” suggesting that the injury

and any potential claim did not drive the employer’s decision. (R. 20-4, PageID #321, Schneider

Depo. at 139). Pfifer instead focused on an unrelated incident and directed Plaintiff to write a

statement explaining why he failed to carry required equipment. (R. 20-4, PageID #327).

The record does not reflect any animus or pressure linked to the injury and ensuing

workers’ compensation claim. It further lacks any circumstantial evidence beyond the mere

temporal proximity of events that suggests a retaliatory motive for an anticipated worker’s

compensation claim. There is also no evidence in the record that Defendant attempted to

discourage or dissuade Plaintiff from exercising his right to pursue a workers’ compensation

claim, but rather the evidence indicates it provided him the necessary forms immediately after

the injury.

Plaintiff’s reliance on temporal proximity and subjective belief does not satisfy the

evidentiary burden at the summary judgment stage. Absent evidence from which a jury could

reasonably infer that the anticipated workers’ compensation claim motivated the adverse

em ployment action, Plaintiff has not established a genuine issue of material fact on the element

of causation. Summary judgment is therefore appropriate on Count Two.

V. Conclusion

For the foregoing reasons, the Defendant’s Motion for Summary Judgment (R. 20) is

hereby GRANTED. This action is hereby DISMISSED with prejudice.

IT IS SO ORDERED.

David A. Ruiz

David A. Ruiz

United States District Judge

Date: March 26, 2026