Arnett v. Precision Strip, Inc.

[Cite as Arnett v. Precision Strip, Inc., 2012-Ohio-2693.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
CALVIN ARNETT,
PLAINTIFF-APPELLANT, CASE NO. 2-11-25
v.
PRECISION STRIP, INC., OPINION
DEFENDANT-APPELLEE.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2011-CV-0173
Judgment Affirmed
Date of Decision: June 18, 2012
APPEARANCES:
C. Bradford Kelley for Appellant
Juan Jose Perez and Sarah Crabtree Perez for Appellee
Case No. 2-11-25
PRESTON, J.
{¶1} Plaintiff-appellant, Calvin Arnett (hereinafter “Arnett”), appeals the
judgment entry of the Auglaize County Court of Common Pleas dismissing his
wrongful termination of employment claim against defendant-appellee, Precision
Strip, Inc. (hereinafter “Precision”). We affirm.
{¶2} On June 28, 2011, Arnett filed a complaint alleging that he was a
Precision employee from 2006 until 2009. (Doc. No. 1). The complaint further
alleged that: on or about March 3, 2009, Arnett was injured while working for
Precision; on or about March 17, 2009, Arnett filed a workers’ compensation
claim, which was approved; and on or about June 29, 2009, Arnett was fired in
retaliation for filing his workers’ compensation claim. (Id.). The complaint
alleged that, by firing Arnett in retaliation for his filing a workers’ compensation
claim, Precision violated R.C. 4123.90 and public policy. (Id.).
{¶3} On July 27, 2011, Precision filed a Civ.R. 12(B)(6) motion to dismiss
the complaint, alleging that Arnett’s retaliation claim was time barred under R.C.
4123.90 and Arnett’s public policy claim was merely derivative of the time-barred
R.C. 4123.90 claim. (Doc. No. 7).
{¶4} On August 8, 2011, Arnett filed a motion to strike paragraph eight of
the complaint alleging a violation of R.C. 4123.90. (Doc. No. 11). That same
day, Arnett filed a response to the motion to dismiss, arguing that his public policy
-2-
Case No. 2-11-25
claim was timely since it was an intentional tort claim governed by R.C.
2305.09(D)’s four-year statute of limitations. (Doc. No. 12).
{¶5} On August 17, 2011, Precision filed a reply in support of its motion to
dismiss, arguing that Arnett’s exclusive remedy for his alleged wrongful
termination was under R.C. 4123.90, and Arnett failed to file his complaint within
180 days following his termination as required under the statute. (Doc. No. 13).
{¶6} On October 11, 2011, the trial court granted Precision’s motion to
dismiss, concluding that Arnett’s public policy retaliatory termination claim was
merely derivative of his untimely R.C. 4123.90 retaliatory termination claim.
(Doc. No. 17). The trial court further concluded that R.C. 4123.90 was the
exclusive remedy for employees, like Arnett, alleging retaliatory termination after
exercising their statutory right to claim workers’ compensation benefits, and
Arnett’s complaint was filed outside R.C. 4123.90’s 180-day time limitation. (Id.).
{¶7} On November 8, 2011, Arnett filed a notice of appeal. (Doc. No. 20).
Arnett now appeals raising one assignment of error for our review.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DISMISSING
APPELLANT’S CASE.
{¶8} In his sole assignment of error, Arnett argues that the trial court erred
in dismissing his complaint since it stated a valid common law claim for wrongful
termination of employment in violation of public policy. Arnett also argues that
-3-
Case No. 2-11-25
his claim is not preempted by the Ohio Workers’ Compensation System. Finally,
Arnett argues that the trial court failed to address Bickers v. Western & Southern
Life Ins. Co., 116 Ohio St.3d 351, 2007-Ohio-6751, and misapplied Sutton v.
Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723.
{¶9} “A motion to dismiss for failure to state a claim upon which relief can
be granted is procedural and tests the sufficiency of the complaint.” State ex rel.
Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992), citing
Assn. for Defense of Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116,
117 (1989). To sustain a Civ.R. 12(B)(6) dismissal, “it must appear beyond doubt
that the plaintiff can prove no set of facts in support of the claim that would entitle
the plaintiff to relief.” LeRoy v. Allen, Yurasek, & Merklin, 114 Ohio St.3d 323,
2007-Ohio-3608, ¶ 14, citing Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d
491, 2006-Ohio-2625, ¶ 11. Additionally, the complaint’s allegations must be
construed as true, and any reasonable inferences must be construed in the
nonmoving party’s favor. Id., citing Maitland v. Ford Motor Co., 103 Ohio St.3d
463, 2004-Ohio-5717, ¶ 11.
{¶10} An appellate court reviews a trial court’s decision to grant or deny a
Civ.R. 12(B)(6) motion de novo. RMW Ventures, L.L.C. v. Stover Family Invest.,
L.L.C., 161 Ohio App.3d 819, 2005-Ohio-3226, ¶ 8 (3d Dist.), citing Hunt v.
Marksman Prod., 101 Ohio App.3d 760, 762 (9th Dist.1995). Under this standard
-4-
Case No. 2-11-25
of review, an appellate court may substitute, without deference, its judgment for
that of the trial court. Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership, 78
Ohio App.3d 340, 346 (2nd Dist.1992).
{¶11} The Ohio Supreme Court addressed common-law public policy
wrongful discharge claims1 in Bickers v. W. & S. Life Ins. Co., 116 Ohio St.3d
351, 2007-Ohio-6751. In 1994, Shelly Bickers was injured in the course of her
employment with Western & Southern Life Insurance Company (“Western &
Southern”). Id. at ¶ 3. Bickers filed a claim for workers’ compensation benefits,
and the claim was allowed for multiple conditions. Id. Following the injury, and
directly related to the allowed conditions in the workers’ compensation claim,
Bickers experienced periods of inability to work. Id. During those periods,
Western & Southern did not provide Bickers a position within the restrictions set
by her physician. Id. In 2002, while Bickers was still receiving workers’
compensation benefits, Western & Southern terminated her employment. Id.
{¶12} Thereafter, Bickers filed a complaint for wrongful discharge. Id. at ¶
4. In relevant part, Bickers alleged that she had been wrongfully terminated from
Western & Southern in violation of the state’s public policy as expressed in the
1
Throughout the opinion, we refer to “common-law public policy wrongful discharge claims.” We use this
term as a short-hand for a specific type of common-law wrongful discharge claims; to wit: a wrongful
discharge claim in violation of the public policy underlying R.C. 4123.90, protecting employees from
retaliation for pursuing workers’ compensation benefits.
-5-
Case No. 2-11-25
workers compensation statutes, citing Coolidge v. Riverdale Local School Dist.,
100 Ohio St.3d 141, 2003-Ohio-5357. Id.{¶13} In response, Western & Southern filed a Civ.R. 12(B)(6) motion to
dismiss, which the trial court granted; thereafter, Bickers appealed. Id. at ¶ 5. The
appellate court reversed, concluding that Bickers could bring a Coolidge-based
claim of wrongful discharge in violation of public policy in a workers’
compensation context. Id. at ¶ 6, citing Bickers v. W. & S. Life Ins. Co., 1st Dist.
No. C–040342, 2006-Ohio-572. The appellate court also concluded that R.C.
4123.90’s procedural requirements, including the 180-day time limitation, were
not necessary to maintain a Coolidge-based public-policy wrongful-discharge
claim. Id.; Bickers, 2006-Ohio-572, at ¶ 16. Western & Southern then appealed to
the Ohio Supreme Court, which accepted jurisdiction. Bickers, 2007-Ohio-6751, at
¶ 7.
{¶14} The Ohio Supreme Court reversed for two reasons. First, the Court
in Bickers limited Coolidge-based public policy wrongful discharge claims to
teachers protected by contracts covered by R.C. 3319.16. Id. at ¶ 11, 15. Since
Bickers was an at-will employee, not a contracted teacher protected by R.C.
3319.16, she could not bring a Coolidge-based public policy wrongful discharge
claim. Id. at ¶ 11. Second, the Court in Bickers concluded that judicially
imposing common-law principles of wrongful discharge into the workers’
-6-
Case No. 2-11-25
compensation arena “runs counter to ‘the balance of mutual compromise between
the interests of the employer and the employee’ as expressed by the General
Assembly within the Act”; and therefore, “Bickers’ remedy must be found within
the workers’ compensation statutes.” Id. at ¶ 25. The Court in Bickers then held
that:
an employee who is terminated from employment while receiving
workers’ compensation has no common-law cause of action for
wrongful discharge in violation of the public policy underlying R.C.
4123.90, which provides the exclusive remedy for employees
claiming termination in violation of rights conferred by the Workers’
Compensation Act. Id. at ¶ 26, syllabus.
{¶15} Four years later, the Ohio Supreme Court created a narrow exception
to its elimination of common-law public policy wrongful discharge claims in
Bickers, recognizing such claims when an injured employee suffered a retaliatory
employment action after injury but before he filed, instituted, or pursued a
workers’ compensation claim. Sutton v. Tomco Machining, Inc., 129 Ohio St.3d
153, 2011-Ohio-2723, at paragraph two of the syllabus. Since R.C. 4123.90 does
not expressly prohibit retaliation against injured employees who have not yet filed,
instituted, or pursued a workers’ compensation claim, the Court’s exception in
Sutton was designed to fill the “gap [that] exists in the language of the statute for
-7-
Case No. 2-11-25
conduct that occurs between the time immediately following injury and the time in
which a claim is filed, instituted, or pursued.” Id. at ¶ 14.
{¶16} Arnett admits that Sutton’s exception is inapplicable because he was
terminated after filing his workers’ compensation claim. (Appellant’s Brief at 8).
Nevertheless, Arnett argues that Bickers allows him to file his common-law public
policy wrongful discharge claim since Bickers only eliminated such claims for
employees who were discharged for nonretaliatory reasons, unlike him. (Id. at 7-
8). We disagree.
{¶17} The Court in Bickers reached both a narrow and a broad holding.
Central to both of Bickers holdings was the premise that the General Assembly
enacted a statutory workers’ compensation system, which “supplanted, rather than
amended or supplemented, the unsatisfactory common-law remedies.” 2007-
Ohio-6751, ¶ 18-19, citing Indus. Comm. v. Kamrath, 118 Ohio St. 1, 3-4 (1928);
Indus. Comm. v. Weigandt, 102 Ohio St. 1, 7 (1921). The Court recognized that
the General Assembly, as a matter of public policy, decided to proscribe
retaliatory discharges alone, so judicially imposing a common-law public policy
wrongful discharge claim for nonretaliatory discharges would be inappropriately
substituting its policy preference for the General Assembly’s enacted policy
decision. Id. at ¶ 23-25. This conclusion lead to the Court’s narrower holding in
paragraph 17 of its opinion wherein the Court stated:
-8-
Case No. 2-11-25
* * * the constitutionally sanctioned, and legislatively created,
compromise of employer and employee interests reflected in the
workers’ compensation system precludes a common-law claim of
wrongful discharge in violation of public policy when an employee
files a workers’ compensation claim and is discharged for
nonretaliatory reasons. (Emphasis added).
Nevertheless, after reaching this specific conclusion, the Court then stated that:
the imposition of common-law principles of wrongful discharge into
the workers’ compensation arena runs counter to ‘the balance of
mutual compromise between the interests of the employer and the
employee’ as expressed by the General Assembly within the Act.
[And therefore,] Bickers’ remedy must be found within the workers’
compensation statutes. Id. at ¶ 25 (emphasis added).
Immediately thereafter, and at the end of the Court’s opinion, the Court held:
an employee who is terminated from employment while receiving
workers’ compensation has no common-law cause of action for
wrongful discharge in violation of the public policy underlying R.C.
4123.90, which provides the exclusive remedy for employees
claiming termination in violation of rights conferred by the Workers’
Compensation Act. Id. at ¶ 26.
-9-
Case No. 2-11-25
This subsequent holding, which the Court adopted as its syllabus, is not limited to
nonretaliatory discharges alone.
{¶18} While the Ohio Supreme Court, in dicta, has more recently
questioned the expansive syllabus in Bickers, the Court has not modified or
overruled it. Sutton, 2011-Ohio-2723, at ¶ 19-21, 23. The Ohio Supreme Court
made Bickers’ syllabus the broader of its two holdings, and, to the extent that there
is disharmony between the syllabus and an opinion’s text or footnotes, the syllabus
controls. S.Ct.R.Rep.Op. 1(B)(1)(2). Prior to the Ohio Supreme Court’s release of
Sutton, the Court of Appeals in several districts had interpreted Bickers’ syllabus
to eliminate common-law public policy wrongful discharge claims. Mortensen v.
Intercontinental Chem. Corp., 178 Ohio App.3d 393, 2008-Ohio-4723, ¶ 15 (1st
Dist.); Cunningham v. Steubenville Orthopedics & Sports Medicine, Inc., 175
Ohio App.3d 627, 2008-Ohio-1172, ¶ 53-54 (7th Dist.); Scalia v. Aldi, Inc., 9th
Dist. No. 25436, 2011-Ohio-6596, ¶ 10; Sidenstricker v. Miller Pavement
Maintenance, Inc., 10th Dist. No. 09AP-523, 2009-Ohio-6574, ¶ 10-13;
McDannald v. Fry & Assoc., Inc., 12th Dist. No. CA2007-08-027, 2008-Ohio-
4169, ¶ 31-32. A multitude of federal district courts in the sixth circuit have
reached this same conclusion. McDonald v. Mt. Perry Foods, Inc., No.: C2:09–
CV–0779 (S.D.Ohio 2011), citing Sharp v. Honda of Am. Mfg., No.: 2: 10–CV-
1039 (S.D.Ohio 2011), Amara v. ATK, Inc., No.: 3:08–CV–0378 (S.D.Ohio 2009),
-10-
Case No. 2-11-25
Helmick v. Solid Waste Auth. of Cent. Ohio, No.: 2:07–CV–912 (S.D.Ohio 2009),
Trout v. FirstEnergy Generation Corp., No.: 3:07–CV–00673 (N.D.Ohio 2008),
Compton v. Swan Super Cleaners, Inc., No.: 08–CV–002 (S.D.Ohio Apr. 29,
2008), McDermott v. Cont’l Airlines, Inc., No.: 2:06–CV–0785 (S.D.Ohio 2008);
Keyes v. Car-X Auto Service, No.: C-1-07-503 (S.D.Ohio 2009); Powell v. Honda
of America Mfg., Inc., No. 2:06-CV-979 (S.D.Ohio 2008).
{¶19} The Court of Appeals for the Twelfth District continues to interpret
Bickers’ syllabus to eliminate common-law public policy wrongful discharge
claims. Rose v. CTL Aerospace, Inc., 12th Dist. No. CA2011-09-171, 2012-Ohio-
1596, ¶ 12-13. Similar to Arnett herein, the plaintiff in CTL argued that Bickers’
syllabus was limited to nonretaliatory discharges, citing language from Bickers
and Sutton. 2012-Ohio-1596, at ¶ 12. The Twelfth District disagreed, however,
noting that “the bulk of the [Bickers] opinion indicates the court’s belief that the
statute precludes all common law claims for wrongful discharge.” Id. at ¶ 13
(emphasis in original). The Twelfth District further concluded that “Sutton creates
a very limited exception to the at-will employment doctrine for injured employees
who suffer retaliation prior to instituting or pursuing a workers’ compensation
claim.” Id. at ¶ 16. We agree with the Twelfth District’s interpretation of Bickers
and Sutton and are not persuaded that mere dicta in Sutton overruled or otherwise
modified Bickers’ syllabus.
-11-
Case No. 2-11-25
{¶20} Allowing employees to file common-law public policy wrongful
termination claims would require this Court to invade the General Assembly’s
law-making authority and would completely eviscerate the procedural
requirements enacted in R.C. 4123.90. Bickers, 2007-Ohio-6715, at ¶ 24. See
also Sutton, 2011-Ohio-2723, at ¶ 39-56 (O’Donnell, J., Cupp, J., and Lanzinger,
J., dissenting). Since the General Assembly specifically enacted a statutory cause
of action for employees, like Arnett, alleging a termination of employment in
retaliation for pursuing workers’ compensation benefits, the General Assembly has
supplanted the common-law on that issue. Bickers, 2007-Ohio-6751, at ¶ 18-19,
citing Kamrath, 118 Ohio St. 1, 3-4; Weigandt, 102 Ohio St. 1, 7. Thus, Arnett’s
remedy is limited to that provided in R.C. 4123.90, and the trial court did not err
by dismissing the remaining claim in Arnett’s complaint which alleged a common-
law public policy wrongful discharge. Bickers, 2007-Ohio-6751, at ¶ 25.
{¶21} Arnett’s assignment of error is, therefore, overruled.
{¶22} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
-12-