Is it time to revisit the clarity/jeopardy analysis for wrongful discharge torts?

Let’s have some conversation about the Ohio Supreme Court decision in Sutton v. Tomco Machining, Inc., Slip Opinion No. 2011-Ohio-2723.

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. ( 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.

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 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. [1989], 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.

Query #1

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.

Query #2

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 (  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.

Query: #3

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.

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4 Responses to Is it time to revisit the clarity/jeopardy analysis for wrongful discharge torts?

  1. Very insightful. This line of thinking is emblematic of the problems with subjectivity. But without subjectivity, objectivity can result in a harsh society. Finding the balance is the key …

    That and a judiciary that is willing to get a headache when it does the analysis….

  2. Excellent analysis. Can we take it a step forward? Employment at will is a judicially created doctrine, but isn’t it time to revisit it? My thinking is that employment discrimination statutes-which are used in most “wrongful discharge” cases-create animosity/hostility because of the label-you are a sexist, racist, whatever. If we eliminated employment at will AND the employment discrimination statutes, workers could simply allege a discharge was “unfair” or “without just cause.” Such would take the hostility out of most employment cases and such a compromise could lead to a further compromise on the available remedies.

  3. John Levy says:

    So the worker could not recover under the statute, but could pursue common law remedies? Yet his recovery for his common law remedies was limited to the remedies provided by the statute? Seems incongruous.

  4. Fred Gittes says:

    As Professor Bettman aptly demonstrates, the Sutton decision is both revealing and important for anyone interested in the current status of the common law wrongful discharge tort in Ohio. Sutton has good and bad news for those who believe that the common law wrongful discharge tort is essential to help prevent dishonest, discriminatory and dangerous business practices in Ohio. Professor Bettman discusses some of the troublesome (questionable) legal analysis in Sutton. I agree with much, but not all, of that discussion. But first, let’s not overlook the surpising positives in the decision.


    Many lawyers, employee groups and legal scholars were concerned that the current members of the Ohio Supreme Court, whose decisions generally favor corporate business and insurance interests, would abolish the common law wrongful discharge tort. They were asked to do so in the Sutton case in amicus briefs filed by pro business groups. Instead, the court in Sutton upheld this important common law remedy and even added yet another specific instance in which the tort applies — situations where employees with good performance records like Sutton are fired shortly after reporting workplace accidents in an effort to deter other employees from reporting industrial accidents or safety problems. This is the first time in quite some time that the court has upheld an employee’s assertion of a wrongful discharge tort under new circumstances. In recent years the court has mostly been saying the tort didn’t apply to discharges brought before the court. For example, in the Bickers case, when employees were fired for being away from work becasue of workplace accidents for which they had sought and received workers compensation, the court said there was no wrongful discharge claim. The court properly distinguished Bickers in Sutton.

    Some of us have been asking the court for years to explicitly recognize that since the common law employment- at -will doctrine (that generally an employer can terminate an employee at any time for no reason or even a bad reason) is a one sided and harsh court created rule of law, it is the court’s responsibility to recognize exceptions allowing wrongful discharge claims. This is especially true in instances when employers use the court created right to fire people at will to cover up illegal, dangerous or dishonest conduct. In Sutton a majority of the court did just that for the first time, stating: “This is commonly known as the employment-at-will doctrine, which was judicially created and thus may be judicially abolished.”

    By recognizing that the employment-at-will doctrine is truly a judicial creation, the majority was able to reject the arguments of the dissenters in Sutton that it is only the legislature that can determine when limits or exceptions to the doctrine are to be recognized. The legislature passes laws defining the important public policies of the state. Often these laws have no specific remedies, gaps in coverage or are not specifically drafted to deal with employee discharges even though such discharges can be used to frustrate the laws or policies involved. In such situations whether an employee can sue an employer for firing him or her under circumstances which indicate the employer was trying to frustrate or get around those laws is a judcial question. The legislature can pass, within constitutional limits, laws to overturn court decisions giving an employe a right to sue for wrongful discharge in specific situations if the legislature disagrees with the court. But in the absence of legislative action clearly indicating the legislature ‘s intention to preempt the court’s decisions, the court controls. The common law is the court’s turf and defining the common law is part of its power and responsibilities as a separate and equal branch of government under the Ohio Constitution.

    While it would be nice, as Randy Freking posted, for the court just to abolish the employment-at-will doctrine altogether, it isn’t going to happen any time soon, if ever, without major political and institutional changes. Meanwhile, the door is now opened a little more for reminding the court just how important its duty in this area of law is. Lest we forget, protecting employees from being fired or being theatened with termination for refusing to lie under oath to cover up their employer’s criminal or dangerous conduct is an illustration of how wrongful discharge torts protect all of us, not just employees.


    The legally painful part of Sutton has been addressed by Professor Bettman. The court has turned the jeopardy element of the wrongful discharge into the “remedy” element. In some cases, the court has suggested that if the law involved provides even a minimal and incomplete remedy for the fired employee, then the public policy is never in jeopardy so forget a common law wrongful discharge claim. One can only wonder how far this will go. Some statutes do not provide even make whole relief which means in the absence of a wrongful discharge remedy, employees will know they (and their families) are almost totally out of luck if the employee refuses an employer’s illegal requests or tries to excersie important but minimally protected rights.

    Unlike Professor Bettman I don’t think this has anything to do with Perritt’s 1989 article reporting the four elements of a wrongful discharge claim he discerned in the court cases at the time. The elements he posited make sense and he distinguished between the clarity element (identifying a clear public policy) and the jeopardy element (making a legal determination that the alleged conduct of the employer would undermine some aspect of the indentified public policy). Indeed, he suggested that the jeopardy element would be met in most cases. Perritt certainly did not suggest that a court should or could recognize a wrongful discharge tort and then deny full tort remedies. It is a “tort” after all.

    Yet, that is what the majority did in Sutton. The Sutton opinion recognized that people who report accidents and injuries at work without initiating a worker’s compensation claim are not covered at all by the worker’s compensation anti retaliation statute. In other words, employees who are fired just for reporting workplace accidents causing injuries have no remedy at all despite the important public policy reflected in numerous workplace related statutes and constitutional provisions indicating that workplace safety and the right to worker’s compensation are high public priorities. Since these employees have no statutory remedy, one would expect the court, applying principles of common law, to provide full tort remedies. Instead, the court held that these employees who were not covered by the statute would still be limited to the statute’s remedies. Confusing? You bet. Especially since the court is exercising its common law authority knowing that if the legislature disagrees it has the power to modify the statute to cover the employees protected by the court or to legislative preempt the court’s common law remedy or to provide equal remedies to the employees who are covered by the statute.

    In the end it is good to know that the common law wrongful discharge “claim” is still with us and can be used, at a minimum, to extend important statutory protections to employees who might otherwise be without any protection at all — e.g. women subjected to sexual harrassment or discrimination at small workplaces not covered by anti discrimination laws (Collins v. Rizkana) or, now, employees fired shortly after reporting workplace injures (Sutton v. Tomco). Whether the common law wrongful discharge “tort” is still with us remains to be seen. Sutton certainly suggests we have some work to do on that point.

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