On Tuesday, a divided panel of the Franklin County Court of Appeals affirmed a summary judgment entered in favor of an employer on a claim of wrongful discharge in violation of public policy. Elam v. Carcorp, Inc., 2013-Ohio-1635. In that case, the employer claimed that it fired the plaintiff in November 2009 because of a mishandled customer payment. However, the plaintiff claimed that he had been discharged because he had filed a lawsuit a year earlier against his prior employer alleging that he had been fired for protected whistleblowing and cooperating with an investigation by the Ohio Attorney General's office. In a rather lengthy opinion, the Court's majority found that no clear public policy in Ohio protected the plaintiff from being fired for suing his prior employer. The dissent, however, concluded that the Open Court provision in the Ohio Constitution – which guarantees the rights of citizens to seek redress in state courts – protected the plaintiff from a retaliatory discharge.
The Court's majority distinguished its prior Simonelli decision, finding that employees have a right to consult with counsel without being fired. The Court noted that the Hamilton County Court of Appeals had refused to extend the protection of the Open Court's public policy to create the right to sue an employee's own employer. Taylor v. Volunteers of Am., 153 Ohio App.3d 698, 2003-Ohio-4306, ¶ 10. The Cuyahoga County Court of Appeals likewise refused to recognize an Open Court public policy right to sue a third-party doing business with the plaintiff's employer. Takach v. Am. Med.Technology, Inc., 128 Ohio App.3d 457 (8th Dist.1998); Noble v. Brinker Internatl., Inc., 175 F.Supp.2d 1027, 1043-44 (S.D. Ohio 2001). However, another court of appeal has recognized a public policy right to sue one's own employer. Cf. Jenkins v. Parkview Counseling Ctr. Inc., 7th Dist. No. 99 CA 60, 2001-Ohio-3151; Terrell v. Uniscribe Professional Servs., Inc., 348 F.Supp.2d 890 (N.D. Ohio 2004). Therefore, this issue may make its way to the Ohio Supreme Court at some point.
Interestingly, the dissent mistakenly concludes that the plaintiff was fired two months after being hired and in the same month that he filed his underlying lawsuit. "Less than two months after being hired and while the lawsuit was pending, Elam was terminated from his employment with Carcorp." However, the Complaint filed in this case asserts that he was employed with the defendant employer in 2008 and 2009 (¶3), and that the defendant employer learned about the lawsuit in the summer or fall of 2008 (¶4) and fired him shortly thereafter (¶ 5). (According to the plaintiff's Memorandum Contra Defendants' Motion for Summary Judgment, in summer/fall 2009, the former employer served a subpoena on the defendant employer for employment payroll information). The defendant employer's Motion for Summary Judgment contends that the plaintiff was hired on November 2, 2009 and the plaintiff never disputed that in his Memorandum Contra.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
