2022 Ohio 3015
Ohio Ct. App.2022Background
- Pettay sued his former employer in a 2016 age-discrimination case and lost on summary judgment. Counsel objected to recovery of deposition-transcript costs.
- Defendants later sought $4,004.39 in deposition transcript costs; the trial court awarded those costs and Pettay appealed.
- While the appeal was pending, the Ohio Supreme Court decided Vossman, holding deposition-transcript costs are not recoverable.
- Pettay then sued defendants (and certain individuals) for retaliation under R.C. 4112.02(I) and for aiding/abetting retaliation, alleging the post-termination cost motions were frivolous and retaliatory.
- Defendants moved to dismiss under Civ.R. 12(B)(6), arguing Pettay—being a former employee—could not show an adverse employment action; the trial court granted dismissal.
- The appellate court reversed in part, holding the complaint sufficiently alleged a retaliation claim because adverse action need not be employment-related and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 4112.02(I) protects former employees from retaliation | Pettay: statute protects former employees and post-termination litigation can be retaliatory | Defendants: statute protects only current employees; Pettay cannot show adverse employment action because he was terminated | Court: reversal in part — adverse action need not be employment-related; complaint may state a retaliation claim by a former employee |
| Whether filing motions to recover deposition costs can be an "adverse employment action" | Pettay: cost motions were frivolous, retaliatory, and aimed to punish him | Defendants: cost motions are ordinary litigation tactics and cannot constitute adverse employment action against a former employee | Court: filing suit or motions can constitute adverse action (per Greer-Burger and Burlington); the complaint plausibly alleges such conduct |
| Whether dismissal under Civ.R. 12(B)(6) was proper | Pettay: factual allegations and inferences suffice to survive dismissal | Defendants: complaint fails to plead an essential element (adverse employment action) | Court: trial court erred to the extent it dismissed the retaliation claim; remand for further proceedings |
Key Cases Cited
- Greer-Burger v. Temesi, 116 Ohio St.3d 324 (2007-Ohio-6442) (adverse-action element in R.C. 4112.02(I) is interpreted broadly; non-employment acts can be adverse)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (antiretaliation protection extends beyond workplace-related acts)
- Vossman v. Airnet Sys., Inc., 159 Ohio St.3d 529 (2020-Ohio-872) (Ohio Supreme Court: deposition-transcript costs are not recoverable)
- Williamson v. Ameritech Corp., 81 Ohio St.3d 342 (1998) (prior Ohio authority disallowing deposition-transcript costs)