# Kilbarger v. Anchor Hocking Glass Co. > Ohio Court of Appeals · June 20, 1997 · 120 Ohio App. 3d 332 URL: https://www.frixlaw.com/law-library/cases/3769068 ## Case - **Full name:** KILBARGER, Appellant, v. ANCHOR HOCKING GLASS COMPANY, Appellee - **Court:** Ohio Court of Appeals - **Decided:** June 20, 1997 - **Citations:** 120 Ohio App. 3d 332; 697 N.E.2d 1080 - **Precedential status:** Published - **Opinion:** Concurrence by Hoffman - **Judges:** Wise, Gwin, Hoffman - **Cited by:** 43 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3769068 ## How later opinions describe it (automated extraction) - finding no abuse of discretion under Rule 612 where party failed to conduct adequate discovery prior to trial ## Opinion text *344 William B. Hoffman, Judge, concurring. I fully concur in the majority’s analysis and disposition of appellant’s second, third, fourth, fifth, and sixth assignments of error. I write separately to clarify what I believe to be the appropriate burden of proof to be applied to retaliatory discharge cases under R.C. 4123.90. In addition, I wish to separately express my position with respect to appellant’s first assignment of error. BURDEN OF PROOF I essentially concur with the majority’s statement as to the burden of proof. I recognize that my disagreement may well be more a matter of semantics than substance. Once an employee establishes a prima facie case for retaliatory discharge, the burden of going forward with the evidence shifts to the employer to set forth a legitimate, nonretaliatory reason for the discharge. The burden of going forward with the evidence is different from the burden of proof. The burden of proof never shifts. If the employer meets its burden of going forward, the employee must prove that the nonretaliatory reason for discharge proffered by the employer is pretextual in nature and that the real reason for discharge was retaliation for the employee’s pursuit of his workers’ compensation claim. The burden of proof does not shift back to the employee. The burden of proof remains on the employee at all times. What changes is that the employee now must prove that the nonretaliatory reason for discharge proffered by the employer is pretextual and that the real reason for his discharge was retaliation for pursuing his workers’ compensation claim. I At issue herein is whether the trial court erred in requiring the appellant/employee to prove that he was injured on the job. The majority affirms this assignment of error pursuant to Wilson v. Riverside Hosp. (1985), 18 Ohio St.3d 8 , 18 OBR 6, 479 N.E.2d 275 . By so doing, I presume, the majority concludes that an employee is not required to prove that he was injured on the job in order to establish a claim for retaliatory discharge under R.C. 4123.90. With that conclusion, I readily agree. The majority bases its decision on Wilson . I find that reliance misplaced. The majority states in its discussion of burden of proof that one of the elements a plaintiff is required to allege pursuant to Wilson is that the employee was injured on the job. It is axiomatic that a plaintiff is required to prove at trial any element that he is required to allege in his complaint. Despite the majority’s *345 conclusion that the appellant was required to allege that he was injured on the job, it concludes that the trial court erred in requiring him to prove it at trial. I find that reasoning logically inconsistent. I believe that the majority misinterprets Wilson . The syllabus in Wilson reads: “A complaint filed by an employee against an employer states a claim for relief for retaliatory discharge when it alleges that the employee was injured on the job, filed a claim for workers’ compensation, and was discharged by that employer in contravention of R.C. 4123.90.” There is a difference between what the Ohio Supreme Court found sufficient to state a claim under the facts in Wilson and what is required to state a claim for retaliatory discharge under R.C. 4123.90. The procedural posture of the Wilson case is significant. Wilson came to the Ohio Supreme Court as a result of the dismissal of the employee’s complaint under Civ.R. 12(B)(6) for failure to state a cause of action. To the extent that the majority reads Wilson to require an injury on the job to be alleged (and, I contend, therefore necessarily proved at trial) as an element in a retaliatory discharge claim, Wilson is inapposite to the majority’s conclusion. Unlike the majority, I do not find that Wilson requires an allegation or proof of an injury on the job before a claim based upon R.C. 4123.90 can be maintained. Wilson held that the employee’s complaint stated a claim. To find that the employee stated a claim is different from establishing what an employee is required to allege before he can state a claim for relief under R.C. 4123.90. The issue becomes whether an employee can assert a successful claim for retaliatory discharge under. R.C. 4123.90 even though the employee cannot prove that he sustained an injury on the job. I submit that a close reading of the statute reveals that the employee can maintain such a claim. R.C. 4123.90 states: “No employer shall discharge, demote, reassign, or take any punitive action against 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.” (Emphasis added). Nothing in the statute requires the employer to have sustained an injury on the job, be it compensable or not. All the statute requires is that the employee has filed a claim or instituted, pursued, or testified in any proceeding under the Workers’ Compensation Act for an injury or occupational disease that occurred in the course of and arising out his employment with that employer. I find no language in the statute to support the trial court’s apparent requirement that the employee prove that an injury occurred at work. *346 Accordingly, I would sustain this assignment of error, not pursuant to Wilson , but rather based on the plain language of the statute. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3769068. Public record. Not legal advice.