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Worker May Pursue Common Law Claim for Retaliatory Firing After Reporting Workplace Injury to Employer

In Cases Where Employee Fired Before Filing Workers' Compensation Claim

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2010-0670.  Sutton v. Tomco Machining, Inc., Slip Opinion No. 2011-Ohio-2723.
Montgomery App. No. 23416, 186 Ohio App.3d 757, 2010-Ohio-830.  Judgment of the court of appeals affirmed, and cause remanded to the trial court.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, and McGee Brown, JJ., concur.
O'Donnell, Lanzinger, and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-2723.pdf

Video clip View oral argument video of this case.

(June 9, 2011) The Supreme Court of Ohio ruled today that R.C. 4123.90, a state law that prohibits the firing of workers in retaliation for filing workers’ compensation claims, expresses a clear public policy against the retaliatory firing of injured employees, including those who are fired before filing a workers’ compensation claim.  Therefore,  Ohio recognizes a common law (non-statutory) tort claim for wrongful discharge in violation of public policy when an employee is fired after reporting a workplace injury to his employer but before initiating a workers’ compensation claim.

Applying that analysis to a Montgomery County case, the Court affirmed a ruling by the 2nd District Court of Appeals that allowed an injured machine shop employee to pursue a wrongful discharge lawsuit against his employer based on the employer’s firing of the worker one hour after he reported a workplace injury to the company owner, but before the employee initiated a workers’ compensation claim.

In a 4-3 majority opinion authored by Chief Justice Maureen O’Connor, the Court held that in order to prevail on a common law wrongful discharge claim, an employee must prove that his firing was retaliatory and that the employer lacked an overriding business justification for the firing.  The Court also held that the remedies available to workers who prevail in such cases are limited to the remedies provided by R.C. 4123.90 for workers who are fired after filing a workers’ compensation claim.

R.C. 4123.90 provides that “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.”

In this appeal, an employee, DeWayne Sutton, alleged that in April 2008, he was injured on the job with Tomco Machining Co. Sutton asserted that within one hour after he reported to company president Jim Tomasiak that he had been injured in a workplace accident, he was terminated from his job but was not given a reason for the termination. Sutton later filed for and was granted state workers’ compensation benefits for the injuries he suffered in the accident, however he had taken no action to initiate that claim in the brief period between his injury and his firing.

Sutton subsequently filed a civil suit against Tomco in the Montgomery County Court of Common Pleas, asserting two different causes of action: 1) a statutory claim for unlawful retaliation (wrongful discharge) in violation of R.C. 4123.90; and 2) a common law claim for wrongful discharge in violation of Ohio public policy. Tomco moved for and the trial court granted judgment on the pleadings dismissing both of Sutton’s claims. 

Sutton appealed.  The 2nd  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 R.C. 4123.90 does not expressly apply to employees, like Sutton, who allege that they are retaliated against after they are injured but before they file, institute, or pursue a workers’ compensation claim. As to the public-policy claim, the 2nd District reversed the judgment against Sutton, holding that the discharge violated public policy as expressed in R.C. 4123.90.

Tomco sought and was granted Supreme Court review of the 2nd District’s decision.

Writing for the majority in today’s decision, Chief Justice O’Connor said that in reviewing the 2nd District’s legal analysis the Court was required to answer two questions: 1) whether R.C. 4123.90 expresses a clear public policy against the kind of retaliatory employment action alleged by Sutton (the clarity element);  and 2) whether an employer’s termination of an employee under circumstances like those involved in Sutton’s firing would jeopardize the public policy expressed in the statute (the jeopardy element).

With regard to the clarity question, Chief Justice O’Connor wrote: “R.C. 4123.90 does not expressly prohibit retaliation against injured employees who have not yet filed, instituted, or pursued a workers’ compensation claim. But it does expressly prohibit retaliation against injured workers who have filed, instituted, or pursued a workers’ compensation claim.  Essentially, a gap exists in the language of the statute for conduct that occurs between the time immediately following injury and the time in which a claim is filed, instituted, or pursued.  Sutton’s firing occurred in that gap.  The parties disagree as to whether the public policy underlying R.C. 4123.90 justifies the creation of an exception to the employment-at-will doctrine to protect such employees.”

“We find that the General Assembly did not intend to leave a gap in protection during which time employers are permitted to retaliate against employees who might pursue workers’ compensation benefits. The alternative interpretation − that the legislature intentionally left the gap − is at odds with the basic purpose of the antiretaliation provision, which is ‘to enable employees to freely exercise their rights without fear of retribution from their employers.’ ...  The General Assembly certainly did not intend to create the footrace cautioned against in Roseborough [v. N.L. Industries (1984)], which would effectively authorize retaliatory employment action and render any purported protection under the antiretaliation provision wholly illusory.” 

“Therefore, it is not the public policy of Ohio to permit retaliatory employment action against injured employees in the time between injury and filing, instituting, or pursuing workers’ compensation claims. Rather, R.C. 4123.90 expresses a clear public policy prohibiting retaliatory employment action against injured employees, including injured employees who have not filed, instituted, or pursued a workers’ compensation claim.”

In analyzing the jeopardy question, Chief Justice O’Connor wrote:  “(W)e 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 against retaliatory employment actions as expressed in R.C. 4123.90.  ...  In cases where the right and remedy are part of the same statute that is the sole source of the public policy opposing the discharge, the test for determining the jeopardy element is whether the remedy provisions adequately protect society’s interest by discouraging the wrongful conduct.”

“By its express terms, R.C. 4123.90 does not apply to Sutton or others who experience retaliatory employment action after being injured but before they file, institute, or pursue a workers’ compensation claim.  Consequently, a claim for retaliatory discharge in those circumstances is not cognizable under the statute. It is for precisely this reason that Sutton’s statutory claim failed.  Therefore, R.C. 4123.90 plainly does nothing to discourage the wrongful conduct that Sutton alleges.  Accordingly, we hold that R.C. 4123.90 does not provide adequate remedies and thus the jeopardy element is satisfied.” 

“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.” 

The Court remanded the case to the trial court for resolution of the factual issues.  In so holding, the Court noted that “in order to prevail on his claim, Sutton must prove  . . . on remand . . . that his discharge was retaliatory” and that “Tomco lacked an overriding business justification for firing him.”  

The majority opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, and Yvette McGee Brown. Justices Terrence O’Donnell and Robert R. Cupp entered separate dissenting opinions. Justice Judith Ann Lanzinger joined Justice Cupp’s dissent.

Justice O’Donnell wrote that in his view, if the legislature wishes to extend the antiretaliation protection of R.C. 4123.90 to cases in which an employee is fired before initiating a workers’ compensation claim, it is the prerogative of the legislature to amend the statute accordingly.  He wrote: “(T)he majority has today expanded the public policy behind the provisions of R.C. 4123.90 to apply to those persons discharged before filing, instituting, or pursuing a workers’ compensation claim. This allowance is a legislative prerogative, and in my view, we should follow the law as written and defer to the General Assembly, instead of stretching the extent of protection to fit situations not addressed by the statute.”

In his dissent, Justice Cupp  stated that in his view the majority decision improperly injects common law principles into the state’s wholly statutory workers’ compensation system by determining that there is an unintended gap in the protection provided to workers by R.C. 4123.90 that the Court must fill.

He wrote: “The conduct that the statute seeks to prohibit is an employer’s retaliating against an employee after the employee takes some action in pursuit of a workers’ compensation claim. This is the entire essence of the statutory proscription. Because the statute does not also proscribe employer conduct that may tend to discourage or prevent the employee from pursuing a claim in the first instance, it is clear that the legislature chose not to include such conduct. If the legislature had so intended, it would have been a simple matter for it to include language proscribing such conduct. ... 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 that the legislature intended not to regulate in this area beyond the conduct proscribed in R.C. 4123.90.”

Jason P. Matthews, 937.228.3731, for DeWayne Sutton.

Jonathan Hollingsworth, 937.424.8556, for Tomco Machining Inc.