COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73103 & 73134 RAYMOND ODE : : ACCELERATED DOCKET PLAINTIFF-APPELLANT : : JOURNAL ENTRY vs. : : AND LUEDTKE ENGINEERING CO. : : OPINION DEFENDANT-APPELLEE : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-313921. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ________________________________ APPEARANCES: For Plaintiff-appellant: Christopher D. Kuebler, Esq. 401 S. Old Woodward, Suite 320 Birmingham, Michigan 48009 For Defendant-Appellee: Richard C. Haber, Esq. Nicholas J. Milanich, Esq. Reminger & Reminger Co., L.P.A. The 113 St. Clair Building Cleveland, Ohio 44114 -2- PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). In the case at bar, plaintiff-appellant Raymond Ode appeals in both of the notices of appeal herein from the granting of summary judgment in favor of defendant-appellee-movant Luedtke Engineering Company. For the reasons adduced below, we affirm. The standard of review for a motion for summary judgment was generally stated in State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 448-449, as follows: Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. * * * Summary judgment is appropriate where the nonmoving party does not produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus; State ex rel. Morley v. Lordi -3- (1995), 72 Ohio St.3d 510, 513, 651 N.E.2d 937, 940. When a motion for summary judgment is made and supported as provided in Civ.R. 56, the nonmoving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine triable issue. Civ.R. 56(E); Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52, 567 N.E.2d 1027, 1031. Also see Celotex v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. Subsequent to Tompkins, in the recent case of Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 144-145, the Ohio Supreme Court limited the third paragraph of the syllabus of Wing, supra, by reasserting reliance on Dresher v. Burt (1996), 75 Ohio St.3d 280, 293: [A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if -4- appropriate, shall be entered against the nonmoving party. (Footnote omitted; Italicization in original.) The lone assignment presented is whether the court erred in granting the defendant's motion for summary judgment. Appellant claims that he was the subject of a retaliatory discharge when the appellee terminated his employment, allegedly for the appellant having suffered a work-related injury and then having filed a maritime claim based on the application of the Jones Act (46 U.S.C. S688 et seq.) and the Longshore and Harbor Workers' Compensation Act (33 U.S.C. S900 et seq.). The subject of the underlying federal-based claims, which were filed by Mr. Ode on June 3, 1994, was addressed in Ode v. Luedtke Engineering Co. (August 21, 1997), Cuyahoga App. No. 71473, unreported, Supreme Court declines jurisdiction (January 5, 1998), Supreme Court No. 97-2090, in which this court affirmed the trial court's granting of a directed verdict in favor of the employer and concluded that Mr. Ode did not establish the requisite vessel/owner fault required by the Act. In the present case, there is no evidence to suggest that the employer terminated or failed to rehire Mr. Ode because the employee filed a claim against the employer. Instead, the deposition testimony of Mr. Ode states succinctly that the company chief operating officer told Mr. Ode during a telephone conversation on May 6, 1994, that the reason for termination/non- hire was that he didn't have any work for Mr. Ode. Also, the only motivation offered by Mr. Ode for the termination/non-hire, -5- that such action was in retaliation for having filed the federal claims, is flapdoodle! The telephone conversation of May 6, 1994 occurred approximately one month prior to the filing of the federal claims and could not thereby serve as a basis for the alleged retaliation. Mr. Ode, as well, has asserted in his deposition testimony that he was physically unable to perform jobs that could have been available to him, obviating any claim of retaliatory discharge on his part. Assignment overruled. Judgment affirmed. -6- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. ______________________________ PATRICIA A. BLACKMON, A.J. ______________________________ JOHN T. PATTON, J. ______________________________ JAMES D. SWEENEY, J. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 25(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .