RECENT
PUBLIC POLICY WRONGFUL DISCHARGE CASES
Presented to the Columbus Bar Association Labor and Employment
Law Committee
October 3, 2007
by:
D. Wesley Newhouse
Newhouse, Prophater, Letcher & Moots, LLC
Tel: (614) 255-5441
I. TERMINATION WHILE ON TEMPORARY
TOTAL DISABILITY LEAVE.
A. Gross I, Voluntary Abandonment
of Job.
- Facts. Mr. Gross, a 16 year old worker in a fast
food restaurant
received written and verbal directions and warnings about cleaning
a pressure cooker with water. He ignored all the warnings, used
water in the cooker, and severely burned himself and two coworkers.
His employer terminated his employment two months
later after investigating the accident, citing in the termination
letter
the employee’s violation of safety rules despite instructions and
warnings to the contrary. The Industrial Commission found that the
worker had abandoned his employment by willfully violating
safety rules.. The Commission terminated his temporary total
disability benefits.
- Ruling. On December 27, 2006, the Ohio
Supreme Court found
that the Industrial Commission did not abuse its discretion in
finding that the worker had abandoned his employment by
willfully violating safety rules. See Gross v. Indus. Comm. (2006),
112 Ohio St. 3d 65, 858 N.E. 2d 335, 2006 Ohio LEXIS 3551. The
court affirmed the notion that workers’ compensation benefits
are
awarded without fault, but that a willful violation of employer
rules is equivalent to an employee’s voluntary abandonment of
employment, much like an employee who retires while on
temporary total disability leave. The court found that there
was no
causal relationship between the injury suffered and the decision
to
terminate employment, so there was no violation of either the
Workers’ Compensation Act or public policy.
B. Gross II., Involuntary
Termination of Employment.
- Facts. See the description
of the facts above. The composition of
the Court changed:
| Gross I |
Majority
Moyer
Resnick
O’Connor
O’Donnell
Lanzinger
|
Dissenters
Lundberg Stratton
Pfeifer |
| Gross II |
Majority
Lundberg Stratton
Pfeifer
Moyer
O’Donnell
Cupp
|
Dissenters
O’Connor
Lanzinger
|
Surprisingly, Resnick, author of the Coolidge decision discussed
below, was in the majority in Gross
I , despite the Court’s denial
of
benefits to the worker. After Resnick left the Court, Cupp joined
the new majority in Gross II, wherein the Court granted benefits.
O’Donnell and Moyer switched their votes.
- Ruling. On September
27, 2007, just 9 months after deciding that
the Industrial Commission did not abuse its discretion in denying
TTD benefits, the Court reversed itself on reconsideration. See
Gross v. Indus. Comm. ______ Ohio St. 3d _____, 2007 Ohio
4916. The Court expressed its discomfort in basing its prior
decision to deny benefits based upon the fault of the worker,
and
found that there was evidence of a causal link between the
workplace injury and the termination of employment, making the
termination involuntary, rather than a voluntary abandonment
of
employment. The new majority of the Court also found it
significant that the employer terminated employment for violation
of the safety rule only after an injury occurred, despite the
prior
instances of the worker’s violation of the rule.
C. Is This an
Extension or Limitation of Coolidge?
- The Ruling in Coolidge.
We
agree with the minority of courts that employees who
are temporarily and totally disabled as a result of their
work-related injuries have a right not only to the
compensation provided in the act, but also to whatever
period of absence from work is deemed medially necessary
to complete their recovery or stabilize their injuries.
Coolidge
v. Riverdale Local School District (2003), 100 Ohio St.
3d 141, 150, 2003 Ohio 5357, 797 N.E. 2d 61, 2003 Ohio LEXIS
2771.
-
The Text of Gross II. Both the majority decision
and the dissent in
Gross II suggest that an employer may terminate employment
of an
injured employee who is receiving TTD benefits if there is
a
willful violation of safety rules. Justice Lundberg Stratton
wrote:
Therefore, upon reconsideration, we hold that Gross’s
termination was involuntary. Any reference to deliberate,
willful, or wanton behavior in Gross
I was intended to
describe his behavior that violated work rules and that
provided grounds for his termination. That language was
not intended to set a new standard for voluntary
abandonment.
Gross v. Indus. Comm., para.
25.
Justice O’Connor wrote a compelling dissent, where
he stated:
Not a single member of the majority disputes that Gross
could have been fired for misconduct. Even though that
termination would satisfy the rationale for voluntaryabandonment
doctrine, the majority holds, as a matter of
law, that the commission cannot apply the doctrine in this
case, simply because Gross happened to be injured as a
result of his misconduct.
Gross v. Indus. Comm., para. 55.
3. The
Text of Gross I. In Gross
II, Justice Lundberg Stratton tried,
perhaps unsuccessfully, to assert that the new majority’s decision
merely clarified the ruling in Gross
I. In Gross I, the Court
went to
some length to distinguish Coolidge:
Coolidge,
however, was not a workers’ compensation case;
it was an employment case. It did not involve Coolidge’s
eligibility for temporary total disability compensation. It
did not involve interpretation of R.C.
4123.56, principles of
voluntary abandonment, or any other workers’
compensation law, and neither the commission nor the
Bureau of Workers’ Compensation was a party to
Coolidge. Accordingly, it is neither necessary nor
appropriate to resort to that case, particularly when Pretty
Prods. addresses this issue.
Gross v. Indus. Comm., Id.
at para. 30.
4. Causal Link. The new
majority in Gross II focused on the
question of the cause of the inability of the employee to work.
The
Court found that there was a causal link between the termination
of
employment and the employee’s injury. As a consequence, even
though the employee willfully violated a work rule, the employee
was entitled to TTD. Had the employer terminated employment
before anyone got hurt, there obviously would be no issue as
to
eligibility for TTD or wrongfully terminating employment of a
worker on TTD. What if Gross had injured only his coworkers?
Again, termination would not trigger these issues. The overlay
of
the injury of the employee who violated the work rule gives rise
to
TTD eligibility. Does this also automatically give rise to liability
for wrongful discharge?
a. The Court found that the letter from
the employer
setting forth the rationale for termination revealed a link
between the discharge and the employee’s injury. Can an
employer who prepares an artful termination notice cut off
TTD eligibility and also limit liability for wrongful
discharge?
b. The Court further noted that the question of whether
termination is voluntary or involuntary is “complicated and
fact-intensive.” Gross v.
Indus. Comm., para. 23. What
standards will apply to sorting out the facts surrounding the
motivations of an employer which terminates the
employment of a worker who has been injured? The Gross
opinions provide little guidance. They do suggest,
however, that the Court may recognize an exception to
Coolidge in instances where an employee has engaged in
willful misconduct.
D. Interrelationship with Prohibition of
Retaliation in R.C. 4123.90.
The Supreme Court now also has before it a case that addresses
the
relationship of the statutory prohibition on retaliation for
the filing and
pursuit of a workers compensation claim found in R.C.
4123.90 with a
claim for public policy wrongful discharge under Coolidge.
In Bickers v.
Western Southern Life Insurance Co., Inc. (2006),
Case No. C-040342,
2006 Ohio 572; 2006 Ohio App. LEXIS 516 (First Dist. Hamilton Cty
2/10/06), the court found that Coolidge created a common law claim
for
wrongful discharge in violation of public policy, and that the cause
of
action was distinct from a claim of retaliation as set forth in the
statute.
The court rejected the rulings of the Eighth District Court of Appeals,
which it said had characterized Coolidge as merely an extension of
the
statutory claim of retaliation. See Brooks v. Qualchoice, Inc. (2005)
Case
No. 85692; 2005 Ohio 5136. The court noted the split of authority
among
several of the appellate districts, and set the stage for the Supreme
Court to
decide if the remedies under R.C.
4123.90 as sufficient to preclude
the
assertion of a separate common law cause of action for retaliation.
The
Court’s ruling in Leininger, discussed below, suggests that the court
may
modify Coolidge by allowing claims for wrongful termination of an
employee on TTD only when the employee complies with the procedural
requirements of R.C. 4123.90.
II.
REPORTING SAFETY VIOLATIONS.
A. Motivation of the Employee.
The employee’s express intent of saving his job, rather than advancing
safety in the workplace, did not prevent the employer from facing
liability
for wrongful discharge in Dohme v. Eurand America, Inc. (2007),
170
Ohio App. 3d 593; 2007 Ohio 865; 868 N.E. 2d 701; 2007 Ohio App.
LEXIS 771(Second District, Montgomery County). The court
found that,
regardless of his underlying motivation, an employee
cannot be terminated
from employment for complaining to an insurance inspector about fire
safety issues. The court distinguished a federal appellate decision
which it
asserted required that the employee be motivated by a desire to assure
workplace safety. See Jermer v.
Siemens Energy & Automation,
Inc. (6th
Cir. 2005), 395 F.3d 655. Dohme is now pending before the Ohio
Supreme Court.
B. Clarity of Public Policy.
The Ohio Supreme Court also has the opportunity in deciding Dohme
to
bring greater clarity to the clarity element of the public policy
wrongful
discharge claim. In Dohme, the court found that it was not necessary
for
the public policy to be embodied in a specific statute. The court
again
took on the Sixth Circuit, asserting that its determination that
there must
be a statute embodying the public policy was incorrect. See Herlik
v.
Continental Airlines, Inc. (6th Cir. Oct. 4, 2005), No. 04-3790,
2005 U.S.
App. LEXIS 21784.
III. STATUTORY REMEDIES PRECLUDE
COMMON LAW CLAIMS.
A. Limitation Upon Common Law
Claims when Statutory Remedies are Sufficient.
When statutory remedies are sufficient, an employee cannot go outside
the
statutory framework to obtain remedies at common law. In Leininger
v.
Pioneer National Latex (2007), ____ Ohio St. 3d _____; 2007 Ohio
4921;
2007 Ohio LEXIS 2229, the court found that an employee whose statutory
cause of action for age discrimination was time barred could not
assert a
public policy wrongful discharge claim. The Court discussed at
some
length the remedies available under Ohio statutes prohibiting age
discrimination, and found that public policy would not be jeopardized
if an
employee were required to seek redress pursuant to the statutes,
rather
than pursuant to the common law.
B. Implications for Dohme
and Bickers.
This ruling may signal the Court’s willingness to confirm its more
general
pronouncements that public policy need not be embodied in a specific
statute in order for there to be a sufficiently clear statement
of public
policy to support a wrongful discharge claim as advocated by the
court of
appeals in Dohme. At the same time, the Court may also rule that,
when
statutory remedies are available, the employee may not circumvent
procedural requirements imposed by statute, contrary to the ruling
in
Bickers.
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