Let’s have some conversation about the Ohio Supreme Court decision in Sutton v. Tomco Machining, Inc., Slip Opinion No. 2011-Ohio-2723.http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-2723.pdf).
The Court decided this case June 9.
DeWayne Sutton was fired within an hour of telling the Tomco company president of an on-the-job injury. The president gave Sutton no reason for firing him except that the firing was not because of Sutton’s job performance or any kind of infraction. Sutton had worked for Tomco for two and a half years.
Sutton sued Tomco for wrongful discharge. He brought both a common law and a statutory claim. The gravamen of both claims was that Tomco fired him to get out of paying a worker’s comp claim, and to avoid paying higher premiums.
Sutton’s statutory claim was based on 4123.90, which makes it unlawful to retaliate against a worker for filing a worker’s compensation claim. The common law claim was a wrongful discharge in violation of public policy tort claim, which makes it unlawful to fire an employee for any reason that violates the public policy of Ohio.
The trial court granted a judgment on the pleadings to Tomco. The Second District Court of Appeals affirmed the dismissal of the statutory tort, but reversed on the common law claim. (http://www.sconet.state.oh.us/rod/docs/pdf/2/2010/2010-ohio-830.pdf). The appeals court did not address the issue of remedies.
In a 4-3 decision authored by Chief Justice O’Connor, the Ohio Supreme Court agreed with the Second District, but did go on to address the issue of remedies.
Before we get into this decision, let’s have a short overview of the long and winding road of wrongful discharge in Ohio.
The basic default position for employment in Ohio is employment at will, which means that a worker can be fired at any time for any reason. And of course workers can also quit for any reason, but the rule clearly favors employers.
Employment at will is a judicially created doctrine.
Beginning in 1990, the Court joined many other jurisdictions in recognizing an exception to the employment at will doctrine, creating a common law tort for wrongful discharge in violation of the clear public policy of the state. This tort became known as a Greeley tort after the case that established it. http://scholar.google.com/scholar_case?case=12892804042252090596&hl=en&as_sdt=2&as_vis=1&oi=scholarr
The logical next question was, where do we find the clear public policy of the state?
Originally, in the Greeley case, the Court limited the expression of clear public policy to statutes.
But in 1994, in the case of Painter v. Graley http://www.sconet.state.oh.us/rod/docs/pdf/0/1994/1994-ohio-334.pdf) the Court greatly expanded the sources of public policy beyond statutes, to include the state and federal constitutions, administrative rules and regulations, and the common law.
Also in the Painter case the Court, in my view unfortunately, grabbed on to a law review article published in the University of Cincinnati Law Review by Villanova law professor Henry H. Perritt, Jr. , 58 U.Cin.L.Rev. 397, 398-399 The Future of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie? ) which recommended that in future cases a plaintiff should have to prove the following elements: (1) clarity, (2) jeopardy, (3) causation and (4) overriding justification for a wrongful discharge tort. The first two elements are questions of law; the last two are questions of fact.
Is it time to bury this law review article and the clarity/jeopardy elements? If a firing violates the public policy of the state, as set forth in the sources the Court allows in Painter, shouldn’t that be enough for a prima facie case? The clarity and jeopardy elements could be merged into that one simple test.
Now on to Sutton. He wasn’t covered by the anti-retaliation statute because he hadn’t yet filed a claim. The Court probably would have made its life easier if it had somehow found that he was. The majority allowed Sutton to use the public policy in the anti-retaliation statute to meet the clarity element of his common law tort claim. Then comes the black hole.
The Court uses adequacy of remedies as the touchstone to determine if the jeopardy element has been met, but then uses a different analysis to determine the appropriate remedies for a common law tort.
Why do I get a headache every time I try to understand the jeopardy analysis? Why exactly should adequacy of remedies be the touchstone for that element?
In this case (unlike many) the jeopardy analysis was simple. Since Sutton wasn’t covered under the statute, his firing jeopardized the public policy of the state. So he gets the green light for a common law tort claim. But what does he get to recover? If you look at Greeley or Kulch v. Structural Fibers (www.sconet.state.oh.us/rod/newpdf/0/1997/1997-ohio-219.pdf) you might think the answer should be, “the full panoply of tort remedies”. But not with this Court. The halcyon days of Greeley and Kulch are clearly over. Sutton’s common law remedies, should he prevail, are limited to those in the anti-retaliation statute, because that’s what the legislature intended.
Why is that the proper answer to the remedies question? Isn’t the reasoning there kind of circular? Does anyone think this Court may be headed in the direction of saying, if you are covered by a statute you’d better use it and forget about a common law claim. If you aren’t covered you may get a common law claim, but you’re limited to the statutory remedies anyway.