159 Ohio App. 3d 43 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 1} Daniel Gessner appeals from a judgment dismissing his age-discrimination case against the city of Union, Ohio. According to the complaint, Gessner was over 40 years of age when he retired from the Union police force and was replaced by a male under the age of 40. The complaint also made various allegations concerning constructive discharge, including that Gessner was continuously badgered about retirement by the city manager and that unjustified reprisals occurred. Specifically, the city manager placed Gessner on administrative leave and threatened to recommend to city council that Gessner's employment be terminated. *45
{¶ 2} Union filed an answer to the complaint on July 11, 2003, and also filed a motion to dismiss on the same date. The motion was based on Union's qualified immunity from suit under R.C.
{¶ 3} After reviewing the record and applicable law, we find that the assignment of error has merit. Accordingly, the trial court judgment is reversed, and the cause is remanded for further proceedings.
{¶ 5} Our review of decisions on such motions is de novo.Citicasters Co. v. Bricker Eckler, L.L.P.,
{¶ 6} The trial court appears to have conducted a minitrial based strictly on the pleadings. The court first concluded that Gessner had been constructively discharged and had met all the elements of an age-discrimination claim. The court then found that Union, therefore, had the burden to prove a legitimate business reason for the discharge. This burden, according to the court, was met because Union had attached a letter to the complaint that mentioned budgetary concerns and Gessner's failure to perform certain duties. As a result, the court decided that the burden then shifted to Gessner to "prove" that these reasons were not a pretext for discrimination. Finally, the court dismissed the case because Gessner did not meet his burden of proof. In this regard, the court *46 noted that Gessner "failed to prove that the reasons offered by Defendant for termination are false."
{¶ 7} In Coryell v. Bank One Trust Co.,
{¶ 8} "As to the requisite pleading standard to establish an age discrimination case, we adopt the Supreme Court's holding inSwierkiewicz v. Sorema, N.A. (2002),
{¶ 9} The elements of a prima facie case, absent direct evidence of age discrimination, are that the plaintiff-employee "(1) was a member of the statutorily protected class, (2) was discharged, (3) was qualified for the position, and (4) was replaced by, or the discharge permitted the retention of, a person of substantially younger age."
{¶ 10} As the trial court noted, Gessner's complaint does plead facts sufficient to establish the elements of a prima facie case of age discrimination. Specifically, Gessner sets forth factual allegations relating to his employment and contends (1) that he was a member of the protected class, (2) that he was qualified for and effectively performed his position with the police department, (3) that he was unlawfully terminated or constructively discharged, and (4) that he was replaced by a male who was less than 40 years of age.
{¶ 11} Union contends, however, that the case was properly dismissed because Gessner voluntarily resigned from his position, as he had been planning to do for several years. But the allegations in the complaint do not indicate a voluntary retirement. Moreover, this is simply one factor to be considered in evaluating whether Gessner was, in fact, constructively discharged. Cases are to be tried after discovery, and on the merits, not by pleadings. As the United States Supreme Court observed, "the prima facie case should not be transposed *47
into a rigid pleading standard for discrimination cases."Swierkiewicz,
{¶ 12} "This simplified notice pleading standard [in Fed.Civ.R. 8(a)(2)] relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims. * * * `The provisions for discovery are so flexible and the provisions for pretrial procedure and summary judgment so effective, that attempted surprise in federal practice is aborted very easily, synthetic issues detected, and the gravamen of the dispute brought frankly into the open for the inspection of the court.' 5 C. Wright A. Miller, Federal Practice and Procedure § 1202, p. 76 (2d Ed. 1990)." Id. at 512-513,
{¶ 13} Similar observations can be made about the Ohio Rules of Civil Procedure, which also have flexible and effective procedures for resolving cases. Moreover, discrimination claims are not precluded simply because employees choose to leave employment instead of being fired. The test for deciding whether an employee was constructively discharged is "whether the employer's actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign." Mauzy v. Kelly Services, Inc. (1996),
{¶ 14} "In applying this test, courts seek to determine whether the cumulative effect of the employer's actions would make a reasonable person believe that termination was imminent. They recognize that there is no sound reason to compel an employee to struggle with the inevitable simply to attain the `discharge' label. No single factor is determinative. Instead, a myriad of factors are considered, including reductions in sales territory, poor performance evaluations, criticism in front of coemployees, inquiries about retirement intentions, and expressions of a preference for employees outside the protected group. Nor does the inquiry change solely because an option to transfer is thrown into the mix, lateral though it may be. A transfer accompanied by measurable compensation at a comparable level does not necessarily preclude a finding of constructive discharge. Our review is not so narrowly circumscribed by the quality and attributes of the transfer option itself. A sophisticated discriminating employer should not be permitted to circumvent the statute by transferring an older employee to a sham position as a prelude to discharge." Id. at 589,
{¶ 15} In the present case, the trial court found that Gessner had alleged a prima facie case of constructive discharge. We agree. In particular, the complaint alleges that the city manager badgered Gessner on numerous occasions *48 about retirement, criticized Gessner in front of others, and gave Gessner a poor performance evaluation as a prelude to terminating his employment, even though Gessner was performing his job effectively. We have no idea of the merits of these allegations, but they do raise a prima facie case of constructive discharge.
{¶ 16} Accordingly, the trial court did err in dismissing the complaint, and the single assignment of error is sustained.
{¶ 18} Because this case is being reversed and remanded, we need not address the merits of this point in detail. However, we do note that Livingston v. Hillside Rehab. Hosp. (1997),
{¶ 19} After Livingston, the Ohio Supreme Court held that the lack of complete remedies in the Family and Medical Leave Act did not give rise to a public-policy cause of action for wrongful discharge. Wiles v. Medina Auto Parts,
{¶ 20} Both Barlowe and Wiles may be distinguished from the present case because they did not involve age-discrimination claims. Furthermore, although the Ohio Supreme Court appears to have changed direction since the decisions in Kulch andLivingston, Wiles was a plurality decision. Consequently, some courts have expressed difficulty in deciding the current state of Ohio law. See, e.g., Mercurio v. Honeywell, No. C-1-02-275 (S.D.Ohio, March 5, 2003), 2003 WL 966287, * 3. We agree that the law is not clear. At some point, the Ohio Supreme Court may clarify its decisions, and that will put an end to the matter. A distinction may also exist between age-discrimination cases brought under R.C.
{¶ 21} As a final matter, we note that the present case is not based solely on the public policy in the age-discrimination statute. Instead, the complaint also raises issues relating to Ohio's Whistleblower Statute. The Ohio Supreme Court has allowed claims for wrongful discharge to be brought where two or more separate and independent sources of public policy exist. CompareKulch,
{¶ 23} Before addressing Union's arguments, we should mention that Gessner has filed a motion with our court, asking us to strike the part of Union's brief that deals with immunity. The motion to strike is based on the fact that Union failed to file a cross-appeal. Union contends, however, that a cross-appeal is not required where an argument is advanced solely to prevent reversal. We agree with Union. *50
{¶ 24} In this regard, App.R. 3(C)(2) provides:
{¶ 25} "A person who intends to defend a judgment or order appealed by an appellant on a ground other than that relied on by the trial court but who does not seek to change the judgment or order is not required to file a notice of cross appeal."
{¶ 26} By raising immunity, Union is not attempting to modify the judgment, but is simply trying to prevent reversal. As a result, Union did not have to file a notice of cross-appeal. See,e.g., Whitt v. Bennett (1992),
{¶ 27} We turn now to the merits of Union's immunity argument. Political subdivisions have general immunity under R.C.
{¶ 28} "This chapter [2744] does not apply to, and shall not be construed to apply to, the following:
{¶ 29} "* * *
{¶ 30} "(B) Civil actions by an employee, or the collective bargaining representative of an employee, against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision * * *."
{¶ 31} Discharge is clearly a matter that stems from an employment relationship. Consequently, because R.C.
{¶ 32} In 1995, the Ohio Supreme Court noted that immunity from liability under R.C.
{¶ 33} "[D]uring oral argument, the Cleveland Board withdrew its position that Brewer could not sue it under R.C. Chapter 2744. The Cleveland Board acknowledges that R.C.
{¶ 34} In a case based on claims of reverse discrimination, the Eighth District Court of Appeals observed that the action brought by the plaintiff alleged "claims for relief based on R.C. Chapter 4112, claims which arise out of the employment situation between Carney [the plaintiff] and her employer. To the extent that these claims by Carney can be regarded as tortious, R.C. Chapter 2744 does not apply to them by virtue of the specific exemption for `civil actions by an employee, * * * against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision.' R.C. 2744.09(B)." Carney v. Cleveland Hts.-Univ.Hts. City School Dist. (2001),
{¶ 35} Although wrongful discharge appears to be precisely the type of situation contemplated by R.C.
{¶ 36} For example, Union cites Stanley v. Miamisburg (Jan 28, 2000), Montgomery App. No. 17912, 2000 WL 84645. InStanley, a former police officer sued the city of Miamisburg on various grounds, including defamation, intentional and negligent infliction of emotional distress, a whistleblower claim, discrimination based on a disability, and assault and battery. The officer also claimed retaliatory discharge in that the city forced him to take a medical retirement. We rejected the wrongful-discharge claims based on judicial estoppel, because the officer had previously represented in two prior proceedings that his disability prevented him from performing the duties of a police officer. 2000 WL 84645, at * 5. Notably, we did not dismiss the wrongful-discharge claim on the basis of immunity.
{¶ 37} We also considered the intentional-tort claim against the city. In this regard, we noted that the Ohio Supreme Court had "conclusively held that employer intentional torts do not arise out of the employment relationship." 2000 WL 84645, at * 7. We further commented:
{¶ 38} "When an employer intentionally harms his employee, that act effects a complete breach of the employment relationship, and for purposes of the legal remedy for such an injury, the two parties are not employer and employee, but intentional tortfeasor and victim. If the victim brings an intentional tort suit against the tortfeasor, it is a tort action like any other." Id. at ** 7-8, citing Brady v. Safety-Kleen Corp. (1991),
{¶ 39} Because such a tort does not arise out of the employment relationship, we found that R.C.
{¶ 40} We did not specify the facts constituting the core of the "employer intentional tort." However, the wrongful-discharge claims were clearly not encompassed, since we had already affirmed the summary judgment on that point. Moreover, the complaint raised matters that could certainly be labeled intentional torts, like the allegation that the police chief struck the plaintiff with a door. Id. at * 2.
{¶ 41} Similarly, in Schmitz v. Xenia Bd. of Edn., Greene App. No. 2002-CA-69, 2003-Ohio-213, 2003 WL 139970, a wife brought a cause of action for "employer intentional tort," based on a fatal injury her husband sustained when he fell from a personnel lift while working as a school custodian. Id. at ¶ 5. In classic intentional-tort fashion, the complaint alleged that the board of education knew of a dangerous condition within its business operation and also knew that harm to the decedent would be substantially certain if he continued to be exposed to the harm. We found that this claim did not come within the exception to municipal immunity in R.C.
{¶ 42} "In short, Schmitz [the plaintiff] cannot have it both ways. She cannot assert that her late husband's injury arose out of his employment relationship with the Board, for purposes of claiming the exception to municipal immunity, while simultaneously claiming that the injury did not arise out of his employment, so as to avoid workers' compensation immunity." Id. at ¶ 20.
{¶ 43} As we noted, our decision in Stanley cited Brady v.Safety-Kleen Corp. (1991),
{¶ 44} "The rationale of these decisions derives from the Ohio Supreme Court's interpretation of the separate workers' compensation statutory scheme. In Brady, the court held that the General Assembly could not, consistent with the workers' compensation provision of Section
{¶ 45} The Seventh District Court of Appeals has also explained that intentional torts are outside the employment relationship:
{¶ 46} "The rule that an intentional tort cannot arise out of the employment relationship originated with Blankenship v.Cincinnati Milacron Chemicals, Inc. (1982),
{¶ 47} The cases cited by Union do not classify age-discrimination or other employment-discrimination claims as "employer intentional torts." In addition, we have not found any Ohio cases that preclude the application of the immunity exception in R.C.
{¶ 48} Union's final point in this context is that political subdivisions are entitled to qualified immunity from civil actions under R.C.
{¶ 49} As we mentioned, R.C. Chapter 2744 provides general immunity from liability to political subdivisions. Absent such immunity, a political subdivision would be liable in tort, just like any other entity. In certain employment situations, like those governed by R.C.
{¶ 50} Based on the preceding discussion, the alternate grounds urged by Union for affirming the trial court decision are rejected. Because the single assignment of error has been sustained, this case is reversed and remanded for further proceedings. In addition, Gessner's motion to strike is overruled.
Judgment reversed and cause remanded.
YOUNG, J., concurs.
GRADY, J., concurs in part.
Concurrence Opinion
{¶ 51} R.C.
{¶ 52} R.C.
{¶ 53} "No employer shall discriminate in any job opening against any applicant or discharge without just cause any employee aged forty or older who is physically able to perform the duties and otherwise meets the established requirements of the job and laws pertaining to the relationship between employer and employee."
{¶ 54} R.C.
{¶ 55} The city of Union argues that it is immune per R.C.
{¶ 56} Blankenship involved a question arising under the Workers' Compensation laws of Ohio promulgated in R.C. Chapter 4123. The General Assembly is authorized by Article
{¶ 57} A claim for age discrimination brought pursuant to R.C
{¶ 58} More to the point, the particular distinction thatBlankenship made with respect to intentional torts applied not to statutory claims for relief, such as R.C.
{¶ 59} The city of Union argues that the intentional-tort distinction extends to an R.C.
{¶ 60} R.C.