COSGROVE, APPELLANT, v. WILLIAMSBURG OF CINCINNATI MANAGEMENT COMPANY, INC., D.B.A. EVERGREEN RETIREMENT COMMUNITY, APPELLEE.
No. 92-2549
SUPREME COURT OF OHIO
September 21, 1994
70 Ohio St.3d 281 | 1994-Ohio-295
Submitted December 15, 1993. APPEAL from the Court of Appeals for Hamilton County, No. C-9100545.
Employer and employee—Sex discrimination—
{¶ 1} Defendant-appellee Williamsburg of Cincinnati Management Company, Inc., d.b.a. Evergreen Retirement Community (“Williamsburg“), terminated plaintiff-appellant Karen Cosgrove‘s employment on September 30, 1988. Alleging that she was terminated because of her pregnancy, Cosgrove filed a charge of discrimination based on sex with the United States Equal Employment Opportunity Commission (“EEOC“) on March 13, 1989. On March 17, 1989, the Ohio Civil Rights Commission (“OCRC“) rеceived a transmittal of the EEOC charge.
{¶ 2} Following the EEOC‘s investigation, Cosgrove received a right-to-sue letter on February 9, 1990. On March 28, 1990, Cosgrove filed an action in federal district court alleging violations of
{¶ 3} Williamsburg asserted as an affirmative defense that Cosgrove‘s action wаs time-barred by
{¶ 4} The trial court granted Williamsburg summary judgment, holding that the statute of limitations could not be more than one year, reasoning that
{¶ 5} Upon appeal, Cosgrove urged that
{¶ 6} The cause is now befоre this court pursuant to a motion to certify the record.
Thompson, Hine & Flory and Deborah DeLong, for appellee.
Spater, Gittes, Schulte & Kolman, Frederick M. Gittes and Kathleen B. Schulte; Helmer, Lugbill & Whitman Co., L.P.A., and James Helmer, Jr., urging reversal for amici curiae, 9 to 5, National Association of Working Women, International Union, Automobile Aerospace, and Agricultural Implement Workers of America (UAW) Region 2, Committee Against Sexual Harassment, Ohio NOW Education and Legal Fund, Columbus Chapter of the NAACP, Ohio Employment Lawyers Association, Ohio State Legal Services Association, Ohio Federation of Business and Professional Women, National Conference of Black Lawyers, Police Officers for Equal Rights, and Ohio Human Rights Bar Association.
Porter, Wright, Morris & Arthur, Stuart M. Gordon, Kevin E. Griffith and Christopher C. Russell, urging affirmance for amici curiae, The Ohio
Manufacturer‘s Association, Ohio Chamber of Commerce, Ohio Association of Civil Trial Attorneys, and Printing Industry of Ohio.
Taft, Stettinius & Hollister, Brian P. Gillan and Doreen Canton, urging affirmance for amici curiae, Employers Resource Association, Employers Resource Council, Associated Employers of Central Ohio, and Manufacturers’ Association of Eastern Ohio and Western Pennsylvania.
PFEIFER, J.
{¶ 7} We hold that
{¶ 8}
“Whoever violates this chapter is subject to a civil aсtion for damages, injunctive relief, or any other appropriate relief.”
{¶ 9} Since
{¶ 10}
{¶ 11} The core question becomes, then, whether
{¶ 12} In Morris v. Kaiser Engineers, Inc. (1984), 14 Ohio St. 3d 45, 14 OBR 440, 471 N.E.2d 471, this court was faced with a similar question regarding former
statute provided a civil cause of action for persons denied employment or discharged because of their age. It provided in pertinent part:
“(B) Any person between the ages of forty and seventy discriminated against in any job opening or discharged without just cause by an employer in violation of division (A) of this section may institute a civil action against the employer in a court of competent jurisdiction.” (138 Ohio Laws, Part I, 2268.)
{¶ 13} This court found that
{¶ 14} With respect to the issue in question,
{¶ 15} Although
Huntington Natl. Bank (1991), 60 Ohio St. 3d 135, 573 N.E.2d 1056. Williamsburg and amici point to the following language from Elek to support their assertion that
“If [the General Assembly‘s] intent were not clear enough from the language employed in
R.C. 4112.99 , resort toR.C. 1.23(A) removes all doubt. This latter section provides:“‘Wherever in a penalty section reference is made to a violation of a series of sections, or of divisions or subdivisions of a section, such reference shall be
construed to mean a violation of any section, division, or subdivision included in such reference.‘” (Emphasis added.) Id. at 137, 573 N.E.2d at 1058.
{¶ 16} None of the parties or amici dispute that the above statement in Elek is dicta. As such, it has no binding effect on this court‘s decision in this case. It was offered as non-essential illustration in a case where statutes of limitations were not at issue. Interestingly, Elek also contains dicta which supports the argument that
“Moreover, were
R.C. 4112.99 ambiguous (which it is not), it is beyond question thatR.C. Chapter 4112 is remedial. * * * Accordingly,R.C. 4112.99 is to be liberally construed to promote its object (elimination of discrimination) and protect those to whom it is addressed (victims of discrimination).” Id.
{¶ 17} More persuasive than any of the dicta in Elek is the General Assembly‘s 1992 amendment to
“This chapter shall be construed liberally for the accomplishment of its purposes * * * .” (Am. Sub. H.B. No. 321.)
{¶ 18} The previous version of
“The provisions of sections 4112.01 to 4412.08 of the Revised Code, shall be construed liberally for the accomplishment of the purposes thereof * * *.” (138 Ohio Laws, Part I, 2282.)
{¶ 19} Thus, the 1992 amendment effectively includes
{¶ 20}
{¶ 21} However, headings and numerical designations are irrelevant to the substance of a code provision. “Title, Chapter, and section headings * * * do not constitute any part of the law as contained in the ‘Revised Code.‘”
{¶ 22} The arguments of Williamsburg and amici in support exalt form over substance. The simple substance of
in a court of law for discriminatory wrongs done.
{¶ 23} The judgment of the court of appeals is reversed.
Judgment reversed.
A.W. SWEENEY and DOUGLAS, JJ., concur.
MOYER, C.J., concurs in the syllabus and judgment.
MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT and RESNICK, JJ., concur separately.
F.E. SWEENEY, J., dissents.
ALICE ROBIE RESNICK, J., concurring.
{¶ 24} Although I concur fully in the court‘s decision, I am compelled to write separately for three reasons. First, I believe it is incumbent upon the court to set forth a more definitive test to identify whether a liability created by statute is penal or remedial. Second, I feel it necessary, in light of today‘s decision, to explain and distinguish our recent decision in Bellian v. Bicron Corp. (1994), 69 Ohio St.3d 517, 634 N.E.2d 608. Third, I wish to stress that how victims of different discriminatory practices are treated regarding time limitations on the independent civil remedies afforded them under
I. Penalty/Remedy Dichotomy
{¶ 25}
{¶ 26}
year limitations period: (1) that the action is based upon “a liability created by statute,” and (2) that such statutorily created liability is “other than a forfeiture or penalty.”
{¶ 27} In Morris v. Kaiser Engineers, Inc. (1984), 14 Ohio St.3d 45, 14 OBR 440, 471 N.E.2d 471, at paragraph two of the syllabus, we held that “[t]he statute of limitations applicable to an action for age discrimination in employmеnt pursuant to
{¶ 28} On this issue, I am not persuaded by reading the lead opinion that
{¶ 29} There does exist, however, a more objective and definitive analytic framework for adjudging the penal or remedial appellation of a statute. Early on, the United States Supreme Court developed the following test to determine whether a law is penal:
“The test whether a law is penal, in the strict and primary sense, is whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual, according to the familiar classification of Blackstone: ‘wrongs are divisible into two sorts or speсies: private wrongs and public wrongs. The former are an infringement or privation of the private or civil rights [that] belong to individuals, considered as individuals; and are thereupon frequently termed civil injuries: the latter are a breach and violation of public rights and duties, which affect the whole community, considered as a community; and are distinguished
by the harsher appellation of crimes and misdemeanors.’ 3 Bl. Com. 2.” (Emphasis sic.) Huntington v. Attrill (1892), 146 U.S. 657, 668-669, 13 S.Ct. 224, 228, 36 L.Ed. 1123, 1128.
{¶ 30} In Floyd v. DuBois Soap Co. (1942), 139 Ohio St. 520, 522-523, 23 O.O. 20, 21, 41 N.E.2d 393, 395, we adopted the definitional test set forth in Huntington, stating that “[t]he test whether a law is penal is whether the wrong sought to be redressed is a wrong to the public or a wrong to the individual.”2
{¶ 31} The test in Huntington was set forth fоr the purpose of determining whether a statute in one state is a penal law in the interstate comity sense and,
therefore, unenforceable by the courts of another state. Following Huntington, courts have utilized its test for the purpose of determining whether a statutorily created liability is penal in other contexts, including whether liability for discriminatory practices is penal and whether an action is penal under statutes of limitations applicable to actiоns other than penalties. Floyd, supra (test used to determine whether federal jurisdiction was exclusive under statute providing exclusive jurisdiction “[o]f all suits for penalties and forfeitures“); Commrs. of Belmont Cty. v. Brown (1916), 5 Ohio App. 394, 401, 26 Ohio C.C. (N.S.) 377, 382 (test used to determine recovery under statute imposing liability on county for failure to erect guardrails on road); Murphy v. Household Finance Corp. (C.A.6, 1977), 560 F.2d 206, 209 (test used to determine whether cause of action under the Truth-in-Lending Act and Regulation Z is penal or remedial for purpose of determining whether such cause of action passеs to bankruptcy trustee); Khan v. Grotnes Metalforming Systems, Inc. (N.D.Ill.1988), 679 F.Supp. 751, 756 (test applied to determine nature of age discrimination claims for purpose of whether such cause of action survives the death of plaintiff); Mehl v. ICI Americas, Inc. (S.D.Ohio 1984), 593 F.Supp. 157, 160 (test used to determine application of
{¶ 32} In
harm suffered. Smith v. No. 2 Galesburg Crown Fin. Corp. (C.A.7, 1980), 615 F.2d 407, 414; Murphy, supra, 560 F.2d at 209; Bowles v. Farmers Natl. Bank of Lebanon, Ky. (C.A.6, 1945), 147 F.2d 425, 428; Republic of Philippines v. Westinghouse Elec. Corp. (D.N.J.1993), 821 F.Supp. 292, 297; United States v. $47,409 in United States Currency (N.D.Ohio 1993), 810 F.Supp. 919, 923; Asklar v. Honeywell, Inc. (D.Conn.1982), 95 F.R.D. 419, 423; McDaniel, supra, 469 N.W.2d at 86-87.
{¶ 33} With regard to the first factor, recent decisions have recognized that “most modern social welfare legislation *** has a dual purpose of remedying harm to the individual and deterring socially inimical business practices. *** Therefore, the Court must determine whether the primary purpose of the Act is more like a penalty or a remedial action ***.” (Emphasis added.) Porter, supra, 385 F.Supp. at 342. In making such a determination, the focus is not on the ultimate goals or effect of the statute, but on the method or design by which the statute seeks to accomplish its goals. See Murphy, supra, 560 F.2d at 211; Smith, supra, 615 F.2d at 414; Bowles, supra, 147 F.2d at 428; Khan, supra, 679 F.Supp. at 756; Asklar, supra, 95 F.R.D. at 423-424; McDaniel, supra, 469 N.W.2d at 86-87. Thus, as the court explained in Ricca v. United Press Internatl., Inc. (S.D.N.Y.1982), 28 Fair Employment Practices Cases 1816, 1817, “one of the primary purposes of the [Age Discrimination in Employment Act] is to redress individual wrongs. *** While the statute undoubtedly was passed in order to respond to a public social problem, in each instance it redresses a specific individual grievance. This is sufficient to satisfy the first *** criterion.”
{¶ 34} In enacting
General Assembly, in passing this legislation, was unconcerned with deterring such socially inimical business practices.
{¶ 35} Nevertheless, the primary purpose of
{¶ 36} That
{¶ 37} With regard to the second factor, recovery under
{¶ 38} The third factor, dealing essentially with whether recovеry authorized by the statute is tied to the harm suffered by the aggrieved individual, generally comes into play in those cases involving fixed, predetermined, minimum, automatic or accumulated statutory damages. See, e.g., State ex rel. Lukens v. Indus. Comm. (1944), 143 Ohio St. 609, 612-613, 28 O.O. 506, 507, 56 N.E.2d 216, 217; Cincinnati, Sandusky & Cleveland RR. Co. v. Cook (1881), 37 Ohio St. 265, 269-270; Commrs. of Belmont Cty., supra, 5 Ohio App. at 402-403, 26 Ohio C.C. (N.S.) at 383-384; Bowles, supra, 147 F.2d at 429; McDaniel, supra, 469 N.W.2d at 87. Even in such cases, however, “[a] law is not penal merely because it imposes an extraordinary liability on a wrongdoer in favor of a person wronged, which is not limited to the damages suffered by him.” Floyd, supra, 139 Ohio St. at 523, 23 O.O. at 21, 41 N.E.2d at 395. See, also, Huntington, supra, 146 U.S. at 667-668, 13 S.Ct. at 227, 36 L.Ed. at 1127; Murphy, supra, 560 F.2d at 210; Porter, supra, 385 F.Supp. at 341.
{¶ 39}
{¶ 40} Last, because much insistence has been placed upon the supposed fact (see fn. 1) that
be, in its essential character and effect, a punishment for an offence against the public, or a grant of a civil right to a private person.” Huntington, supra, 146 U.S. at 683, 13 S.Ct. at 233, 36 L.Ed. at 1133. As one court put it, “‘[a] rose by any other name is still a rose.‘” Republic of Philippines, supra, 821 F.Supp. at 296, quoting Terenzio v. Nelson (1969), 107 N.J.Super. 223, 227, 258 A.2d 20, 23.
{¶ 41} It is clear from the foregoing that
II. Bellian Distinguished
{¶ 42} The syllabus in the case sub judice reads: ”
{¶ 43} The syllabus in Bellian, supra, reads: “Any age discrimination claim, premised on a violation described in
{¶ 44} It is imperative that we explain the basis for applying a different statute of limitations period to the sex-based employment discrimination claim in this case than was applied in Bellian to an age-based employment discrimination claim. Otherwise, there is no guidance as to which statute of limitations will be held to apply to other claims brought pursuant to
{¶ 45} In Bellian, we recognized that ”
519, 634 N.E.2d at 610. In other words, there may be other provisions in
{¶ 46} The plaintiff in Bellian brought an age-based employment discrimination claim that purported to be based on
{¶ 47} We went one step further, however, and held that since
{¶ 48} In the case sub judice, appellant‘s sex-based employment discrimination claim was also brought pursuant to
{¶ 49} Unlike the situation in Bellian, however, there is no
{¶ 50} Other than
{¶ 51} It is clear from the foregoing that, in these kinds of cases, unless a cause of action is based on a provision in
establishing civil liability for viоlations of rights for which no other provision for civil liability has been made.
{¶ 52} In order to facilitate this function, and to provide guidance as to when statute of limitations conflicts arise between
III. Legislative Function
{¶ 53} When the General Assembly amended
{¶ 54} Instead, we must do as we have done in this case, viz., choose from amоng the various statutes of limitations contained elsewhere in the Revised Code on the basis of well-established statutory and common-law principles of construction. Application of these principles has yielded a six-year statute of limitation for
{¶ 55} Yet, in light of the general contour of
{¶ 56} In any event, the decision is, in the first instance, a political one that should not be left tо the judiciary. Accordingly, I beseech the General Assembly to reclaim this issue and resolve it on a legislative level.
MOYER, C.J., A.W. SWEENEY, DOUGLAS and WRIGHT, JJ., concur in the foregoing concurring opinion.
WRIGHT, J., CONCURRING.
{¶ 57} Aside from the reservations I expressed in Elek v. Huntington Natl. Bank (1991), 60 Ohio St.3d 135, 140, 573 N.E.2d 1056, 1061 (Wright, J., dissenting), which is now established law, I concur in Justice Resnick‘s concurring opinion.