SUTTON, APPELLEE, v. TOMCO MACHINING, INC., APPELLANT.
No. 2010-0670
Supreme Court of Ohio
Submitted February 15, 2011—Decided June 9, 2011.
[Cite as Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723.]
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and R. Lynn Nothstine, Assistant Prosecuting Attorney, for appellant.
Timothy Young, Ohio Public Defender, and Melissa M. Prendergast, Assistant Public Defender, for appellee.
{¶ 1} The issue presented in this appeal is whether Ohio should recognize a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers retaliatory employment action after injury on the job but before the employee files a workers’ compensation claim or institutes, pursues, or testifies in any workers’ compensation proceeding.1 We answer in the affirmative and further hold that the available remedies are limited to those
I. Relevant Background
{¶ 2} Early in the morning on April 14, 2008, DeWayne Sutton injured his back while disassembling a chop saw on the job at Tomco Machining, Inc. (“Tomco“).2 He reported the injury to Tomco‘s president, Jim Tomasiak. Within one hour of being told of the injury, Tomasiak fired Sutton, who had been an employee of Tomco‘s for two and one-half years. Tomasiak did not give Sutton a reason for the firing but did state that the firing was not because of Sutton‘s work ethic or job performance or because Sutton had broken any work rule or company policy.
{¶ 3} On July 1, 2008, Sutton sent a letter to Tomco that informed it of his intention to file a claim under
{¶ 4} Tomco moved for judgment on the pleadings, pursuant to Civ.R. 12(C). The trial court granted the motion as to both claims. Sutton appealed.
{¶ 5} The Second District Court of Appeals affirmed the judgment in part and reversed it in part. Specifically, it affirmed the judgment against Sutton on the statutory claim on the grounds that
{¶ 6} We accepted Tomco‘s discretionary appeal. Sutton v. Tomco Machining, Inc., 126 Ohio St.3d 1512, 2010-Ohio-3331, 930 N.E.2d 331.
A. Exception to Employment-at-Will Doctrine
{¶ 7} The traditional rule in Ohio is that at-will employment may be terminated by the employer at any time for good cause, bad cause, or no cause at all, and therefore, discharge of an employee does not give rise to an action for damages. Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 23 OBR 260, 491 N.E.2d 1114. This is commonly known as the employment-at-will doctrine, which was judicially created and thus may be judicially abolished. Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 161, 677 N.E.2d 308.
{¶ 8} In 1990, this court recognized an exception to the employment-at-will doctrine that applies when an at-will employee is discharged or disciplined for reasons that contravene clear public policy expressed by the legislature in its statutes. Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981, paragraph one of the syllabus; Painter v. Graley (1994), 70 Ohio St.3d 377, 639 N.E.2d 51, paragraph three of the syllabus (“Clear public policy” sufficient to justify an exception to the employment-at-will doctrine may be found in statutory enactments, the Constitutions of Ohio and the United States, administrative rules and regulations, and the common law). The basis of this exception is that when the General Assembly enacts laws that are constitutional, the courts may not contravene the legislature‘s expression of public policy. Painter at 385. It is our responsibility to determine when public-policy exceptions must be recognized and to set the boundaries of such exceptions. Kulch at 161. In this case, the dissent mischaracterizes our opinion as establishing public policy. To the contrary, we simply recognize that the judicial doctrine of employment at will must yield when it contravenes the public policy as established by the General Assembly in
{¶ 9} A cause of action for wrongful discharge in violation of public policy sounds in tort. Greeley at paragraph three of the syllabus. A plaintiff must prove the following elements to prevail on such a claim: (1) a clear public policy exists and is manifested in a state or federal constitution, in statute or administrative regulation, or in the common law (the clarity element), (2) dismissing employees under circumstances like those involved in the plaintiff‘s dismissal would jeopardize the public policy (the jeopardy element), (3) the plaintiff‘s dismissal was motivated by conduct related to the public policy (the causation element), and (4) the employer lacked an overriding legitimate business justification for the dismissal (the overriding-justification element). Collins v. Rizkana (1995), 73 Ohio St.3d 65, 69-70, 652 N.E.2d 653. The clarity and jeopardy elements involve questions of law; the causation and overriding-justification elements involve questions of fact. Id. at 70. We will now address these elements as they apply to Sutton‘s claim.
{¶ 10} This case is before us on an appeal from a judgment on the pleadings, which is a mechanism that is used to resolve questions of law. State ex rel. Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d 565, 570, 664 N.E.2d 931. Consequently, the factual elements, i.e. causation and overriding justification, are not before us. Rather, in order to prevail on his claim, Sutton must prove them on remand. To establish the causation element, Sutton must prove that his discharge was retaliatory. Because a discharge could be for reasons other than those related to workers’ compensation, such as a reasonable suspicion that the injury was not job related, a disregard by the employee for the employer‘s safety rules, or an immediate need for a replacement employee, no presumption of retaliation arises from the fact that an employee is discharged soon after an injury. Rather, the retaliatory nature of the discharge and its nexus with workers’ compensation must be established by a preponderance of the evidence. To establish the overriding-justification element, Sutton must prove that Tomco lacked an overriding business justification for firing him. Accordingly, we consider only the clarity and jeopardy elements.
2. The Clarity Element
{¶ 11} Under the clarity analysis, we must determine whether there exists in Ohio a public policy against retaliatory employment actions like the one alleged by Sutton. “Clear public policy” sufficient to justify an exception to the employment-at-will doctrine may be expressed by the General Assembly in statutory enactments, as well as in other sources, such as the Ohio and United States constitutions, administrative rules and regulations, and the common law. Painter, 70 Ohio St.3d 377, 639 N.E.2d 51, paragraph three of the syllabus. In this case, Sutton identifies
{¶ 12} In determining legislative intent, we must first look to the statutory language and the purpose to be accomplished. See Rice v. CertainTeed Corp. (1999), 84 Ohio St.3d 417, 419, 704 N.E.2d 1217, citing State ex rel. Richard v. Bd. of Trustees of Police & Firemen‘s Disability & Pension Fund (1994), 69 Ohio St.3d 409, 411, 632 N.E.2d 1292.
{¶ 13}
{¶ 15} Although we have never before directly addressed whether the public policy underlying
{¶ 16} The concurring opinion cautioned that the court was not interpreting the statute to mean that the actual filing of a claim was the only means by which a workers’ compensation proceeding could be instituted or pursued. Id. at 372, 23 O.O.3d 341, 433 N.E.2d 142 (W. Brown, J., concurring). “If such a requirement was mandated, an employer could [preemptively] fire the claimant and thus avoid the consequences of
{¶ 18} Eight years after we decided Bryant, we recognized the tort of wrongful discharge in violation of public policy. Greeley, 49 Ohio St.3d 228, 551 N.E.2d 981, at paragraph three of the syllabus. In doing so, we also held that “[h]enceforth, the right of employers to terminate employment at will for ‘any cause’ no longer includes the discharge of an employee where the discharge is in violation of a statute and thereby contravenes public policy.” Id. at paragraph two of the syllabus. Therefore, Greeley and its progeny govern resolution of Sutton‘s claim for wrongful discharge in violation of public policy. Bryant governs only statutory claims, and Sutton‘s statutory claim is not before us.
{¶ 19} Tomco asserts that Bickers v. W. & S. Life Ins. Co., 116 Ohio St.3d 351, 2007-Ohio-6751, 879 N.E.2d 201, controls here. But like Bryant, Bickers is not dispositive. In Bickers, we held that an employee who was receiving temporary total disability benefits did not have a common-law wrongful-discharge claim against her employer for a nonretaliatory discharge. Id. at the syllabus and ¶ 17. Bickers was injured on the job and, as a result, was receiving temporary total disability payments. Id. at ¶ 3. Following the injury, Bickers experienced periods of inability to work. Id. Eight years after the injury, the employer fired her. Id. Thereafter, she filed suit against the employer and claimed that while she was receiving temporary total disability benefits, she was fired, and therefore, she was wrongfully discharged in violation of the public policy underlying
{¶ 20} In determining whether Bickers had a cause of action for wrongful discharge, we reviewed the origin and nature of the workers’ compensation system. Id. at ¶ 18. We explained that as the arbiter of public policy, the General Assembly had decided when to require an employer to hold an injured worker‘s position open. Id. at ¶ 20-24. In making its decision, the General Assembly balanced the competing interests of employers and employees. Id. at ¶ 23. Ultimately, “the General Assembly chose to proscribe retaliatory discharges only.” (Emphasis added.) Id. Accordingly, we deferred to the General Assembly when we held that Bickers did not have a wrongful-discharge claim for a nonretaliatory firing. Id.
{¶ 21} Tomco argues that Bickers stands for the proposition that no common-law action for wrongful discharge in violation of
{¶ 23} The dissent misapplies Bickers, 116 Ohio St.3d 351, 2007-Ohio-6751, 879 N.E.2d 201. The key distinction between Bickers and this case is the nature of the alleged discharge: nonretaliatory versus retaliatory. The dissent attempts to diminish the comparative timing of the firings. When Bickers was fired, she had already successfully sought workers’ compensation. Therefore, Bickers was protected by the statute from retaliatory firing. In Bickers, we determined whether the General Assembly also intended to proscribe the firing of an injured employee for reasons not related to the workers’ compensation claim. We recognized that the General Assembly intended to proscribe only retaliatory firings. Id. at ¶ 25, quoting Blankenship v. Cincinnati Milacron Chem., Inc. (1982), 69 Ohio St.2d 608, 614, 23 O.O.3d 504, 433 N.E.2d 572.
{¶ 24} Likewise, in this case, we recognize that the General Assembly intended to proscribe retaliatory firings. We are called upon, however, to determine what, if anything, the General Assembly intended in leaving the gap in protection against retaliatory firing immediately following injury but before the employee files a workers’ compensation claim or institutes or pursues a workers’ compensation proceeding. Bickers did not present this issue. If we were to decline to address it now, we would leave Sutton and others similarly situated unprotected from retaliatory firings, which is plainly not the intent of the General Assembly.
3. The Jeopardy Element
{¶ 25} Under the jeopardy analysis, we must determine whether a retaliatory dismissal of an employee who is injured on the job but who has not yet filed, instituted, or pursued a workers’ compensation claim jeopardizes the public policy
{¶ 26} The remedies portion of
{¶ 27} The phrase “[a]ny such employee” is a limitation on the class of people that can avail itself of the remedies set out in
{¶ 28} Because the clarity and jeopardy elements are satisfied, Ohio recognizes a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers retaliatory employment action after injury on the job but before the employee files a workers’ compensation claim or institutes or pursues a workers’ compensation proceeding.
B. Remedy
{¶ 29} We next determine what remedies are available to Sutton if he proves retaliatory discharge. A review of our decision in Collins is helpful.
{¶ 30} In Collins, we recognized a common-law tort for wrongful discharge in violation of the public policy against sexual harassment. Id. at the syllabus. In that case, Collins had been an employee of a veterinarian for a number of years. Id. at 67. She alleged that the veterinarian sexually harassed her throughout her
{¶ 31} On appeal, this court recognized the clear public policy against sexual abuse and sexual harassment expressed in
{¶ 32} We further held that the full spectrum of common-law remedies was available to plaintiffs like Collins because the legislature did not intend to limit the remedies to those provided in
{¶ 33} In contrast, the Workers’ Compensation Act plainly provides limited, exclusive remedies. Before the enactment of the Workers’ Compensation Act, common-law tort principles governed recovery for work-related injuries. Bickers, 116 Ohio St.3d 351, 2007-Ohio-6751, 879 N.E.2d 201, at ¶ 18, citing Fulton, Ohio Workers’ Compensation Law (2d Ed.1998) 3, Section 1.2. Ohioans adopted
{¶ 34} The act is premised on the recognition that industrial accidents are inevitable and that employees injured in the course of their employment ought to be able to recover certain damages (i.e., benefits). Coolidge, 100 Ohio St.3d 141, 2003-Ohio-5357, 797 N.E.2d 61, ¶ 40. The act shifts the burden of the consequences of workplace injuries away from the individual employee to the employer, but ultimately, to society at large. Id. “[T]he Act ‘operates as a balance of mutual compromise between the interests of the employer and the employee whereby employees relinquish their common law remedy and accept lower benefit levels coupled with the greater assurance of recovery and employers give up their common law defenses and are protected from unlimited liability.‘” Bickers at ¶ 19, quoting Blankenship, 69 Ohio St.2d at 614, 23 O.O.3d 504, 433 N.E.2d 572.
{¶ 35} The compromise established by the General Assembly must govern the relief available to employees, like Sutton, who suffer retaliatory employment action after an injury and before they have filed, instituted, or pursued a workers’ compensation claim, just as it governs the relief for employees who suffer retaliatory employment action after they have filed, instituted, or pursued a workers’ compensation claim. Accordingly, we hold that Ohio‘s public policy as established by the legislature is to limit remedies for retaliatory employment actions against injured employees to those listed in
{¶ 36} To hold otherwise and allow pursuit of common-law remedies for wrongful discharges in violation of this public policy would undermine the entire workers’ compensation scheme, purpose, and operation. It would be nonsensical to acknowledge a tort in violation of public policy but fail to tailor the remedies in conformance with that public policy. We therefore hold that the remedies available for wrongful discharge in violation of the public policy against retaliatory employment actions as expressed in
III. Conclusion
{¶ 37} For these reasons, we recognize a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers retaliatory employment action after an injury but before he or she files, institutes, or pursues a workers’ compensation claim. To establish causation, a plaintiff who
{¶ 38} Accordingly, we affirm the judgment of the court of appeals and remand the cause for determination of the fact-based elements of the claim, i.e., the causation and overriding-justification elements.
Judgment affirmed and cause remanded.
PFEIFER, LUNDBERG STRATTON, and MCGEE BROWN, JJ., concur.
O‘DONNELL, LANZINGER, and CUPP, JJ., dissent.
O‘DONNELL, J., dissenting.
{¶ 39} The majority opinion establishes policy for Ohio by recognizing a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers a retaliatory employment action after injury but before filing, instituting, or pursuing a workers’ compensation claim.
{¶ 40} Recognizing the legislative branch of government as the policy-making branch, I would assert that
{¶ 41} To the contrary, the majority has today expanded the public policy behind the provisions of
CUPP, J., dissenting.
{¶ 43} Ohio‘s workers’ compensation system, enacted pursuant to state constitutional authority, is a wholly statutory system.
{¶ 44} The court today improperly injects common-law principles into this wholly statutory system, and it exceeds its authority by doing so. Moreover, the public policy that the court seeks to vindicate by inserting the tort of wrongful discharge into the law of workers’ compensation is inapposite to the statute upon which the court relies to derive that policy.
{¶ 45} The majority opinion states that
{¶ 46} Contrary to the majority‘s unsupported conclusion, there is no gap in the statute. Rather, it is clear that the legislature, whether wisely or not, chose not to proscribe employer conduct that was short of retaliation.
{¶ 48} The legislature, for example, could have added a few more words to the text of
{¶ 49} “No 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, or take any such action in order to prevent or discourage any employee from filing a claim or instituting, pursuing, or testifying in any such proceedings.”
{¶ 50} It may be good public policy to include an employer‘s preemptive conduct within the statutory proscription, or there may be adverse consequences to such a policy that are not apparent on its face. This court has insufficient information available to it to make such a far-reaching policy choice. In any case, the legislature did not include such wording, which makes it clear that the legislature intended not to regulate in this area beyond the conduct proscribed in
{¶ 51} Even if there were a gap that was unintended, and even if it were appropriate for this court to attempt to fill that gap, the majority‘s chosen remedy is incongruous with the policy attempted to be vindicated. The majority injects a common-law tort action for what it terms “retaliation.” In reality, it is not “retaliation” that is being alleged by Sutton in this case. “Retaliation” involves some adverse action taken to punish some conduct already undertaken. The gravamen of the complaint here is that the employer took action to prevent or discourage the employee from pursuing a workers’ compensation claim in the first place—not to retaliate for having done so. It is, therefore, unclear how the court‘s remedy for employer “retaliation” can be utilized to any proper effect when the conduct of the employee against which the employer is alleged to have retaliated had not yet occurred. Under the allegations in this case, Sutton had not yet taken any steps toward a workers’ compensation claim—not even the small step of stating to the employer that he intended to do so.
{¶ 52} The motive alleged by Sutton for Tomco‘s firing him was to have Sutton removed from Tomco‘s roster before he applied for workers’ compensation
{¶ 53} Furthermore, the termination of an employee simply because the employee is injured on the job will not have the effect of discouraging the employee from filing for workers’ compensation benefits. Instead, it is almost certain to have the opposite effect: it will strongly motivate the employee to file a claim.
{¶ 54} Finally, this matter was decided on a Civ.R. 12(C) motion for judgment on the pleadings, so there is not even an evidentiary record upon which this court may reliably base its leap into the unknown.
{¶ 55} In summary, I express concern because the court today injects common-law principles into a wholly statutory workers’ compensation system, finds a gap in the existing statute where none exists, and institutes a remedy incongruous with the wrongful conduct alleged.
{¶ 56} Although the court has made a significant effort to narrow the scope of its decision expanding the tort of wrongful termination into the workers’ compensation arena, I must respectfully dissent because I believe that the decision by the majority, although well intentioned, rests on foundations that are seriously flawed.
LANZINGER, J., concurs in the foregoing opinion.
Jeffrey M. Silverstein & Associates, Jeffrey M. Silverstein, and Jason P. Matthews, for appellee.
J. Hollingsworth & Associates, L.L.C., and Jonathan Hollingsworth, for appellant.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Barton Bixenstine, and Josephine S. Noble, urging reversal for amicus curiae Ohio Management Lawyers Association.
Giorgianni Law, L.L.C., and Paul Giorgianni, urging affirmance for amicus curiae Ohio Association for Justice.