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Ohio Recognizes 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

By Jason A. Paskan, Esq.

Recently, the Supreme Court of Ohio held that: 1) R.C. 4123.90 expresses a clear public policy which prohibits retaliatory employment actions against injured employees, 2) a common-law tort claim exists for violation of this public policy where the worker has been injured but has not yet filed for workers' compensation and 3) that the remedies for the common-law tort claim are limited by R.C. 4123.90. Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723, at syllabus paragraphs one, two and four. In order to establish causation for the common-law tort claim, one "must prove that the adverse employment action was retaliatory, which requires proof of a nexus between the adverse employment action and the potential workers' compensation claim." Id. at syllabus paragraph three.

In Sutton, the plaintiff-employee injured his back while at work and was discharged within an hour of providing notice of the injury to the president of the defendant-employer. Id. at ¶2. Although the company president did not provide the plaintiff-employee a reason for the termination, he informed plaintiff-employee that he was not fired because of work ethic, job performance, or violation of company rule or policy. Id.

Plaintiff - employee asserted two claims for relief, including unlawful retaliation under 4123.90 and a tort for wrongful discharge in violation of public policy. Id. at ¶3. The Court determined that the retaliation provisions in R.C. 4123.90 did not expressly apply to similarly situated workers like the plaintiff-employee in Sutton, because the workers' compensation claim had not yet been filed, instituted or pursued. Id. at ¶14.

The Court focused its analysis on the wrongful discharge in violation of public policy, recognized by the Court in Greeley v. Miami Valley Maintenance Contrs., Inc., (1990), 49 Ohio St. 3d 228. In order to prove a claim under Greeley, a plaintiff must prove: "(1) a clear public policy exists and is manifested in a state or federal constitution, statute or administrative regulation, or in 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)." Sutton, at ¶9.

Because this was an appeal, the Court only concerned itself with questions of law, i.e. the clarity and jeopardy elements. Id. at ¶¶9-10. However, the Court did lend guidance on what is necessary in order to establish the causation element - "the retaliatory nature of the discharge and its nexus with workers' compensation must be established by a preponderance of the evidence". Id. at ¶10. The Court also explained what is necessary to establish the overriding-justification element - "[plaintiff-employee] must prove that the [defendant-employer] lacked an overriding business justification for the employees termination". Id.

In analyzing the clarity element, the Court determined that the General Assembly left a gap in R.C. 4123.90 "for conduct that occurs between the time immediately following injury and the time in which a [workers' compensation] claim is filed, instituted or pursued." Id. at ¶14. The Court determined 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." Id. at ¶22. Accordingly, the Court determined that R.C. 4123.90 expressed a clear public policy against the termination of injured workers, "including injured employees who have not filed, instituted, or pursued a workers' compensation claim." Sutton, at ¶22.

In analyzing the jeopardy element, the test "is whether the remedy provisions [set forth in R.C. 4123.90] adequately protect society's interest by discouraging the wrongful conduct." Sutton, at ¶25. The Court determined that because the remedies section of R.C. 4123.90 limits the class of employees to those who have actually pursued workers' compensation claims for purposes of R.C. 4123.90, the statute did not provide adequate remedies, thereby satisfying the jeopardy element.

The Court found that the Workers' Compensation act provides limited and exclusive remedies and "supplanted, rather than amended or supplemented the unsatisfactory common-law remedies." Sutton, at ¶33. The Court determined that 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." Id. at ¶36. Accordingly, the Court limited the remedies for violation of the public policy set forth in R.C. 4123.90 to those remedies listed in the statute. Id. at ¶35.

It is important to note that the causation and overriding-justification elements were not considered by the Court in this case because factual issues are not matters for appeal. Therefore, even though the plaintiff-employee may have won at the appellate level and his claim is recognized, he must still establish causation and a lack of an overriding business justification in order to obtain a judgment at the trial level.