Opinion
No. CA2008-11-283.
August 17, 2009.
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS, Case No. CV2007-06-2260.
Albert T. Brown, Jr., for plaintiff-appellant.
Dinsmore Shohl LLP, Louise S. Brock, David A. Nenni, for defendant-appellee.
Michael Alexander, PLLC, Stephanie R. Alexander, for defendant-appellee.
OPINION
{¶ 1} Plaintiff-appellant, Thomas Ferguson appeals the Butler County Court of Common Pleas' decision granting summary judgment in favor of defendant-appellee, SanMar Corporation. We affirm the trial court's decision.
{¶ 2} Ferguson began working for SanMar in March, 2006. Approximately nine months later, Ferguson began feeling discomfort in his upper back. On December 15, 2006, Ferguson expressed this discomfort to his supervisor, Paul Boellke, who responded by asking Ferguson if he had been injured at work, or whether Ferguson needed medical attention. Ferguson responded in the negative. Boellke told Ferguson that if he wanted to see his physician he could leave early, but Ferguson said he would finish his shift and see a doctor afterwards.
{¶ 3} Ferguson went to Bethesda North Hospital that evening. Ferguson explained to a nurse that his discomfort was due to the harness he was required to wear when operating an aerial delivery platform at SanMar. Upon hearing the injury was work-related, the nurse asked Ferguson to fill out workers' compensation claim paperwork and submit to a drug test. The next day, Ferguson went to Bethesda Care in Norwood where he obtained medication and paperwork which restricted him to light-duty work.
{¶ 4} The following week, Ferguson presented himself to SanMar's Human Resources Administrator, Deanna Adams, and presented his light-duty restrictions paperwork. Upon discerning that Ferguson was reporting a work-related injury, Adams told Ferguson that he needed to be taken to a drug testing facility to be tested. Although Ferguson made clear that he received a drug test at the hospital on the preceding Friday, Adams explained that the drug test did not conform to company policy. Ferguson was then transported to Bethesda Care in Sharonville, by another employee, to submit to a drug test.
{¶ 5} At some point during Adams and Ferguson's discussion, the Assistant Manager of the facility, Forest Kirk, entered Adams' office. After observing Ferguson's response to being "re-tested," Kirk decided to require monitoring of Ferguson's drug test. Thus, when Ferguson arrived at Bethesda Care in Sharonville, he was told by hospital personnel that the drug test would be witnessed. Upon learning that the drug test would be observed, Ferguson refused to be tested. Ferguson was transported back to SanMar and was subsequently terminated for refusing to submit to a drug test in contravention of company policy.
{¶ 6} Ferguson filed suit against SanMar alleging the company had terminated him in retaliation for filing a workers' compensation claim in violation of R.C. 4123.90. SanMar filed a motion for summary judgment arguing the company only terminated Ferguson because he violated SanMar's policy when he refused a drug test. The trial court granted SanMar's motion for summary judgment, finding Ferguson had not shown that SanMar had terminated him in violation of R.C. 4123.90. Ferguson filed an appeal raising a single assignment of error.
{¶ 7} "THE TRIAL COURT ERRED BY GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT."
{¶ 8} Ferguson argues that the trial court should not have granted summary judgment to SanMar because the trial court relied on inconsistent statements and testimony by SanMar employees. We do not agree.
{¶ 9} An appellate court examines a trial court's decision to grant summary judgment de novo. Grafton v. Ohio Edison Co, 77 Ohio St.3d 102, 105, 1996-Ohio-336. Thus, a reviewing court is required to "us[e] the same standard that the trial court should have used, and * * * examine the evidence to determine whether as a matter of law no genuine issues exist for trial." Bravard v. Curran 155 Ohio App.3d 713, 2004-Ohio-181, ¶ 9, quoting Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 383. We must, therefore, review a trial court's decision regarding summary judgment independently, without any deference to the trial court's judgment. Id. at ¶ 9, citing Burgess v. Tackas (1998), 125 Ohio App.3d 294, 295.
{¶ 10} Summary judgment is proper where: (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) the evidence submitted can only lead reasonable minds to a conclusion, adverse to the nonmoving party. Civ. R. 56(C); Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66. The party moving for summary judgment bears the burden of demonstrating no genuine issue of material fact exists with regards to the essential elements of the claim(s) of the nonmoving party. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93. A material fact is one which would affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505.
{¶ 11} The burden is then on the nonmoving party to present evidence showing that there is some issue of material fact yet remaining for the trial court to resolve. Dresher at 293. The nonmoving party may not rely on mere allegations or denials in his pleading. Civ. R. 56(E); Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Instead, the nonmoving party must respond with specificity to show a genuine issue of material fact. Id. The nonmoving party is, however, entitled to have any doubts resolved and evidence construed, most strongly in his favor. Welco Indus., Inc. v. Applied Cos., 67 Ohio St.3d 344, 346, 1993-Ohio-191. Nevertheless, summary judgment is appropriate where a nonmoving party fails to produce evidence essential to his claim. Id.
{¶ 12} R.C. 4123.90 prohibits employers from taking an adverse employment action against an employee because he filed, or pursued, a workers' compensation claim for an injury which arose and occurred in the course of his employment with the employer. "The scope of the statute is nevertheless narrow, and R.C. 4123.90 does not prevent an employer from [taking an adverse employment action against] an employee who is unable to perform his or her duties * * * [or] for just and lawful reasons. The statute protects only against [adverse employment actions] in direct response to the filing or pursuit of a workers' compensation claim.'" White v. Mt. Carmel Med. Ctr., 150 Ohio App.3d 316, 2002-Ohio-6446, ¶ 36, quoting Sidenstricker v. Miller Pavement Maintenance, Inc., Franklin App. Nos. 00AP-1146 and 00AP-1460, 2001-Ohio-4111, ¶ 55. "An employee may assert a claim under this statute only if he alleges and proves that he was demoted or dismissed, not because of his job-related injury, but rather because of his pursuit of a workers' compensation claim." Blair v. Milford Exempted Village School Dist. Bd. of Edn. (1989), 62 Ohio App.3d 424, 431, abrogated on other grounds by Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d 141, 2003-Ohio-5357.
R.C. 4123.90 states in pertinent part: "[n]o 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."
{¶ 13} Courts in Ohio have addressed claims filed pursuant to R.C. 4123.90 under a burden-shifting framework. See, e.g., Young v. Stelter Brinck, Ltd., 174 Ohio App.3d 221, 2007-Ohio-6510, ¶ 20-21; Wysong v. Jo Ann Stores, Inc., Montgomery App. No. 21412, 2006-Ohio-4644, ¶ 10; Rollison v. Ball, Marion App. No. 9-05-48, 2006-Ohio-5153, ¶ 19; Stone v. Martin Marietta Energy Sys., Inc. (Oct. 5, 1998), Washington App. No. 97CA602, 1998 WL 1796, at *3-4; Kilbarger v. Anchor Hocking Glass Co. (1997), 120 Ohio App.3d 332, 337-40; Napier v. Roadway Freight, Inc., Lucas App. No. L-06-1181, 2007-Ohio-1326, ¶ 12; Cunningham v. Steubenville Orthopedics Sports Medicine, Inc., 175 Ohio App.3d 627, 2008-Ohio-1172, ¶ 56; Markham v. Earle M. Jorgensen Co. (2000), 138 Ohio App.3d 484, 492; Herron v. DTJ Ents., Inc., Summit App. No. 22796, 2006-Ohio-1040, ¶ 16; White at ¶ 37; Prox v. Cleveland Steel Container Corp., Trumball App. No. 2005-T-0045, 2006-Ohio-2770, ¶ 24-26; McDannald v. Fry Assoc, Inc., Madison App. No. CA2007-08-027, 2008-Ohio-4169, ¶ 17.
The burden-shifting analysis is applied in the absence of direct evidence of retaliation. Wysong v. Jo Ann Stores, Inc., at ¶ 10; Cf. Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501.
{¶ 14} Under the burden-shifting scheme, the employee must first set forth a prima facie case of retaliation, then the burden shifts to the employer to set forth a legitimate nonretaliatory reason for the adverse employment action and, finally, the burden shifts back to the employee to establish that the employer used that nonretaliatory reason as a pretext for the adverse employment action. Markham at 492. "The burden of proving that the employer had a retaliatory motive remains at all times on the employee." Id.
{¶ 15} In establishing a prima facie case of retaliation, Ohio courts have offered two different methods. One practice, which has been followed by a majority of Ohio courts, including our own, requires the employee to show that he or she: (1) was injured on the job, (2) filed a workers' compensation claim, and (3) suffered an adverse employment action in contravention of R.C. 4123.90. Kilbarger at 337-338. The other approach requires the employee to show that (1) he or she engaged in a protected activity, (2) he or she was the subject of an adverse employment action, and (3) a causal link existed between the protected activity and the adverse employment action. Sidenstricker at ¶ 58.
In Combs v. Square D Co. (June 29, 1984), Butler App. No. CA84-03-036, this court suggested that our Supreme Court might follow Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 101 S.Ct. 1089, in retaliation cases based upon state law. Id. at 6. We stated that a plaintiffs prima facie case for retaliation required a showing that: "(1) he or she engaged in a protected activity; (2) the employer knew that the plaintiff engaged in this activity; (3) the employee was subsequently discharged; and (4) the discharge occurred because of the employee's conduct or under circumstances which give rise to an inference of unlawful discrimination." (Emphasis sic.) Id. at 5-6, citing Burdine at 253.
{¶ 16} Despite the fact that most courts, including Kilbarger, cite to Wilson v. Riverside Hospital (1985), 18 Ohio St.3d 8 in support of the first method, we note that Wilson never stated that those three requirements set forth a prima facie case for retaliation. Accord, Sidenstricker at ¶ 50; Wysong, 2006-Ohio-4644 at ¶ 12, fn.1; Kilbarger at 345 (Gwin, P.J., concurring). Instead, Wilson merely stated that to survive a Civ. R. 12(b)(6) motion to dismiss, a complaint must "allege[ ] 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." (Emphasis added.) Id. at syllabus. Accord, Sidenstricker at ¶ 50; Wysong, 2006-Ohio-4644 at ¶ 12, fn.1; Kilbarger at 345 (Gwin, P.J. concurring). However, we observe that although the Supreme Court has not weighed in further on retaliation under R.C. 4123.90, it recently stated, with regard to the antiretaliatory provision of R.C. 4112.02(I), that "[t]o establish a case of retaliation, a claimant must prove that (1) she 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, ¶ 13, citing Canitia v. Yellow Freight Sys., Inc. (C.A.6, 1990), 903 F.2d 1064, 1066.
{¶ 17} After reviewing the two approaches, and in light of the Supreme Court's decision in Greer-Burger, we believe that method advocated by the Tenth Appellate District in Sidenstricker and its progeny is the proper way for a plaintiff to establish a prima facie case of retaliation in R.C. 4123.90 cases. Thus, to establish a prima facie case of retaliation the employee must show: (1) he or she engaged in a protected activity, (2) he or she was the subject of an adverse employment action, and (3) a causal link existed between the protected activity and the adverse employment action. Sidenstricker at ¶ 58.
As part of his or her prima facie case, "the employee may, but need not, also allege and prove the employee was injured on the job." Sidenstricker at ¶ 62.
{¶ 18} "The burden of establishing a prima facie case of retaliation is not onerous and is easily met.'" Wysong at ¶ 12, quoting Greer-Burger v. Temesi, Cuyahoga App. No. 87104, 2006-Ohio-3690, ¶ 15; Meyer v. United Parcel Serv., Inc., 174 Ohio App.3d 339, 2007-Ohio-7063, ¶ 53, reversed on other grounds by Slip Opinion No. 2009-Ohio-2463. The activity protected by R.C. 4123.90 is triggered when an "employee file[s] a claim or institute[s], pursue[s] or testifie[s] in any proceedings under the workers' compensation act." While a discharge, demotion, reassignment, or any punitive action taken by the employer constitutes an adverse employment action under R.C. 4123.90.
{¶ 19} To establish a causal link, the employee must produce evidence sufficient to raise an inference that the protected activity was the likely reason for the adverse employment action. Young, 174 Ohio App.3d at ¶ 23; Wysong, 2006-Ohio-4644 at ¶ 12, fn.1. Trial courts should consider a "variety of factors to determine whether there was an inference of a retaliatory motive." Young at ¶ 23. Evidence that may be offered in support of an inference of retaliatory motive may include a showing that the exercise of the protected conduct was closely followed by the adverse employment action, although timing alone is insufficient to show a causal link. Id. at 24; Pflanz v. Cincinnati, 149 Ohio App.3d. 743, 2002-Ohio-5492, ¶ 53. Other evidence may include, but is not limited to, punitive actions taken, such as bad performance reports, changes in salary level, hostile attitudes; evidence that the employer treated the employee differently from other employees; a request that the employee not file a workers' compensation claim; and/or evidence that the employee was on the work schedule past the date of termination. See, e.g., Kent v. Chester Labs, Inc. (2001), 144 Ohio App.3d 587, 592; Lindsay v. Children's Hosp. Med. Ctr of Akron, Summit App. No. 24114, 2009-Ohio-1216, ¶ 13; Wysong at ¶ 12, fn.1; Young at ¶ 26.
It should be noted that "[t]he cases that accept mere temporal proximity between an employer's knowledge of [the] protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be `very close.'" Clark Cty. School Dist. v. Breeden (2001), 532 U.S. 268, 273, 121 S.Ct. 1508.
{¶ 20} "If the plaintiff establishes his or her prima facie case, then the burden of production shifts to the employer to articulate a legitimate nonretaliatory reason for its action." Sidenstricker at ¶ 59. "[T]he burden does not require the employer to prove the absence of a retaliatory discharge. It merely requires the employer to set forth a legitimate, nonretaliatory reason for the employee's discharge." Kilbarger at 338. "When considering whether an employer has a legitimate nonretaliatory reason for discharging an employee, the court must keep in mind the fact that an employee who files a workers' compensation claim is not insulated from discharge." Markham, 138 Ohio App.3d at 492. "R.C. 4123.90 does not operate to suspend the rights of an employer nor does it insulate an employee from otherwise lawful actions taken by the employer. To hold otherwise would render employers virtually powerless to combat fraud and/or blatant inefficaciousness on the part of any employee who happened to have a pending workers' compensation claim." Id. at 494.
{¶ 21} "[I]f the employer sets forth a legitimate, nonretaliatory reason, the burden once again shifts to the employee * * * [who] must then establish that the reason articulated by the employer is pretextual and that the real reason for the discharge was the employee's protected activity under the Ohio Workers' Compensation Act." Kilbarger at 338. Pretext may be shown in a variety of different manners. The employee may show that the employer's proffered reason: (1) had no basis in fact, (2) did not actually motivate the adverse employment action, or (3) was insufficient to motivate the adverse employment action. Wysong at ¶ 13; King v. Jewish Home, 178 Ohio App.3d 387, 2008-Ohio-4729, ¶ 9.
Another court has also suggested another set of methods to show pretext. The employee may demonstrate pretext directly "`by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Napier, 2007-Ohio-1326 at ¶ 13, quoting Burdine, 450 U.S. at 256. An employee may also show pretext by showing similarly situated employees were not treated adversely for engaging in the protected activity. Id., citing McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 804-805, 93 S.Ct. 1817.
{¶ 22} In this case, Ferguson clearly meets the first two elements required in a prima facie case. He engaged in a protected activity by filing a workers' compensation claim, and he suffered an adverse employment action when he was terminated from SanMar. The existence of a causal link is more difficult to ascertain.
{¶ 23} The fact that Ferguson was terminated within a few days after filing his claim, or conceivably on the same day that SanMar learned of the claim, is, at the very least, minimal circumstantial evidence of a causal link. Ferguson argues that SanMar's "written" drug testing policy contained no requirement for either transportation to a drug testing facility or observation of the testing process. Ferguson also points out that testing a person more than eight or 32 hours after an injury is reported would not be determinative of whether alcohol or drugs were present in his system when the injury occurred. Based on the fact we need only find an inference of retaliation, and because we must construe the evidence most strongly in Ferguson's favor we believe the timing of the discharge coupled with the request that he submit to a second drug test, which did not comport with written company policy and was outside the window prescribed by the workers' compensation commission, is arguably enough to get Ferguson past the initial stage of the burden-shifting analysis. (Emphasis added.)
Appellant bases his argument on R.C. 4123.54, which states that workers' compensation benefits may be denied if alcohol is detected within eight hours of injury, or drugs are detected within 32 hours of injury.
{¶ 24} Because the burden then shifts to the employer to articulate a legitimate nonretaliatory reason for the adverse employment action, we must examine SanMar's reason for the discharge, which in this case was Ferguson's refusal to submit to a drug test.
{¶ 25} SanMar's written company policy contains the following pertinent provisions:
{¶ 26} "Employees may be required to submit to drug and/or alcohol screening under the following circumstances:
{¶ 27} "1. Involvement in an accident, or injury which resulted in, or in the judgment of a supervisor or manager could have resulted in, damage to property or personal injury that requires medical attention. * * *
{¶ 28} "A positive test may result in disciplinary action, up to and including termination. As a condition of employment, all employees must consent to being tested in accordance with this policy; a refusal to be tested may result in termination or employment based on failure to comply with company policy. (Emphasis sic.) * * *
{¶ 29} "Bethesda Care Occupational Clinics and their affiliates (see your supervisor for designated clinics in your area) are our designated collection facilities. Actual testing will be done by a [certified] laboratory * * * and will be conducted by independent medical personnel in a manner scientifically accepted as reliable and designed to minimize intrusion into individual privacy. * * *
{¶ 30} "In all circumstances of suspected drug and alcohol use on company premises employees must be transported to the testing facility * * *"
{¶ 31} SanMar submitted evidence which indicated that in all workplace injuries, which had been reported between January 1, 2006 to March 12, 2008, the employee was required under company policy to submit to a drug test. In fact, SanMar stated that no employee who reported a workplace injury was ever exempted from the testing policy. Of the 65 employees who reported injuries, and submitted to drug tests, 61 tested negative, three tested positive, and one, Ferguson, refused to submit to the test. Two of the three who tested positive were terminated, and one resigned before he could be terminated. One of the three who ultimately tested positive was also required to have an observed test. Finally, SanMar stated that none of the employees were terminated because they filed a workers' compensation claim, and most are still employed at SanMar.
{¶ 32} Consistent with SanMar's drug testing policy, upon his report of a workplace injury to SanMar, Ferguson was asked to submit to a drug test. When Ferguson refused to take the drug test, he was terminated, which is also completely consistent with company policy. "[A]n employee's termination under an employer's * * * policy is not considered a retaliatory discharge if the company policy is neutral in its application." Oliver v. Wal-Mart Stores, Inc., Franklin App. No. 02AP-229, 2002-Ohio-5005, ¶ 17, citing Metheney v. Sajar Plastics, Inc. (1990), 69 Ohio App.3d 428, 432. Here, Ferguson was asked to submit to a neutral drug testing policy, which he refused, and as a result, was terminated. Thus, SanMar has established a legitimate nonretaliatory reason for Ferguson's discharge.
{¶ 33} As the burden then shifts to Ferguson to show that SanMar's reason for discharging him pursuant to his refusal to submit to a drug test was pretextual, we must now determine whether Ferguson carried his burden.
{¶ 34} The thrust of Ferguson's argument is that by subjecting him to the unwritten policies of transportation to, and observation of, the drug test; as well as being asked to "retest," he was being retaliated against for filing a workman's compensation claim. His argument, however, misstates what he must prove under the final stage of burden-shifting paradigm, namely that SanMar's decision to discharge him based on a violation of the drug testing policy: (1) had no basis in fact, (2) did not actually motivate the adverse employment action, or (3) was insufficient to motivate the adverse employment action.
{¶ 35} While the SanMar employee handbook does not specifically state that all persons submitting to a drug test will be transported the facility by another employee, except in those cases where drug use is suspected, three SanMar employees testified during depositions that the practice is standard, at least when a workplace injury is reported. The purpose of this policy, according to SanMar, is to "ensure the integrity of the drug-test." The trial court found that SanMar had "an unwritten but well-established policy, whereby when an employee incurs a workplace injury he/she is to be transported to a medical facility, accompanied or by, a fellow employee." After viewing the evidence, we also believe that a long-standing transportation policy existed; and, despite Ferguson's arguments to the contrary, SanMar did not just invent the policy as a way to punish or harass him. Thus, even though Ferguson had already submitted to a drug test, it did not, as Adams explained, comply with SanMar's policy, and he was required to resubmit to the test.
The policy also requires the employee to be tested at a place of SanMar's choosing, rather than a facility of the employee's choosing. Ferguson was initially tested at Bethesda North Hospital, and SanMar sent him to be "retested" at Bethesda Care Sharonville, thus Ferguson's selection of testing facilities also did not comply with company policy.
{¶ 36} While the unwritten "observation" policy was not as well-established as the "transportation" policy, SanMar offered evidence to show that Ferguson was not the only employee they had ever asked to submit to a witnessed drug test. We are aware that Adams testified that there was nothing about Ferguson's demeanor that suggested he was using drugs or alcohol on the premises. Kirk also stated that initially there was nothing in Ferguson's behavior that indicated he had been using drugs or alcohol.
{¶ 37} However, Adams explained that the decision to require an observed drug test is made by management. Kirk, as assistant facility manager, made that determination after observing Ferguson's "nervous and fidgety" reaction to being asked to resubmit to a drug test. Kirk's decision was not punitive action taken towards Ferguson because Ferguson filed a workers' compensation claim. Instead, it was a management decision predicated on a suspicion that Ferguson was using drugs or alcohol in the workplace.
{¶ 38} For Ferguson's argument to succeed, we would have to believe that the evidence shows SanMar knew that requiring him to be transported to the hospital and observed while he submitted to the test would induce Ferguson's refusal to be tested. There is no way that SanMar, or anyone for that matter, could have known that Ferguson would refuse to be tested, especially since no employee before Ferguson had ever refused the test. It was Ferguson's own refusal to submit to the test that motivated his discharge. That refusal, under the written policy was likewise sufficient to motivate Ferguson's discharge.
{¶ 39} Ferguson also argues that there was no reason to submit to a drug test because the injury for which he was filing the claim occurred well past the window required by the alcohol and drug testing provision of the workers' compensation statute. This argument is not without some merit, because it would seem best to test someone at the time of the injury, rather than at a later date, in order to obtain the most accurate determination of whether the employee was under the influence of drugs or alcohol when he or she was injured. Ferguson points to the requirements in R.C. 4123.54 in support of this position. However, we note that R.C. 4123.54 applies only to the workers' compensation commission's decision making process in that it operates to deny benefits to those who test positive for dugs and alcohol within a specified time period. That statute places no requirements on when a company must conduct the testing, nor does it have anything to do with a company's own policy of requiring employees who report workplace injuries to be tested when the company first learns of the existence of the injury.
{¶ 40} Finally, we note that when Ferguson was asked, during his deposition, why he was terminated, he did not respond that he was being retaliated against for filing a workers' compensation claim, he simply stated he was discharged because he refused to submit to a drug test:
{¶ 41} "Q. All right. Did you ask her [Adams] any questions about your termination, about what happened, why, anything?
{¶ 42} "A. I mean, I knew. I knew when I left. I mean, like I said, they explained everything. They said I didn't — I didn't cooperate, so-
{¶ 43} "Q. So you were told that — well, jus give me a better understanding of that. What was you understanding of why you were terminated?
{¶ 44} "A. Because I refused the drug test."
{¶ 45} Even after viewing the evidence in a light most favorable to Ferguson, we do not believe any questions of material fact remain as to the reason of his discharge. Ferguson was not fired in retaliation for filing a workers' compensation claim, he was terminated because he refused to submit to a drug test. Ferguson has not presented any evidence to show this reason was pretextual, therefore summary judgment was properly granted to SanMar, and Ferguson's assignment of error is overruled.
{¶ 46} Judgment affirmed.
BRESSLER, P.J., and YOUNG, J., concur.