Ohio Modifies Ohio Civil Rights Act and Shortens Limitations Periods

 

What a long strange trip it has been.  Yesterday, Governor DeWine signed H.B. 352 into law.  While it is a scaled down version of what passed the Senate before Christmas, it addresses long-standing concerns with Ohio employment discrimination legal procedures and makes them more consistent and often still more generous than exist under federal law. Among other things, it generally shortens the limitations period for 4112 claims and some federal statutory claims to two years, requires exhaustion of remedies, incorporates specific federal defenses, and makes damages subject to tort cap limits, etc.  It still retains the right of employees to bring certain age discrimination and injunctive relief claims directly in court.

First, it shortens the limitations period for claims under O.R.C. § 4112, and federal claims under §§1981a, 1983 and 1985 to two years (from the existing six years), which is still twice as long as the federal limitations period under Title VII, the ADEA and the ADA, etc.  (The limitations periods for those federal statutes vary from state to state because they “borrow” the analogous state limitations period).  The limitations period begins to run from the date when “the alleged unlawful discriminatory practice was committed.”  This period will be tolled for Chapter 4112 claims as long as a Charge is pending at the OCRC, except that if the Charge was not filed until less than 60 days before the limitations period was about to lapse (i.e., on day 670), then the tolling will last another 60 days after the Charge is no longer pending at the OCRC.

Second, similar to federal law and with a few exceptions, it requires employees to first file a Charge with the Ohio Civil Rights Commission, before filing a lawsuit.   The time period for filing a Charge is the same as for filing a lawsuit: two years.   Employees may still request a right to sue letter from the OCRC prior to the conclusion of any OCRC investigation, but the OCRC may not issue the right to sue unless the Charge has been pending at least 60 days.

Third, with certain exceptions, employees cannot file suit unless they have a Right to Sue letter, have waited at least 45 days after requesting a RTS letter and 60 days since filing a Charge, or have received a letter where the OCRC found probable cause of discrimination to have occurred.   These conditions do not apply if the employee is only seeking injunctive relief or if the employee filed a timely charge with both the OCRC and EEOC and the EEOC has issued a right to sue letter (or if filing a lawsuit for age discrimination under §4112.14).   But, if the employee initially sought only injunctive relief from a court and later amends his or her complaint to include a claim for damages, the employee must have filed a timely OCRC Charge and comply with the right-to-sue letter requirements.   

Fourth, as with federal law, it eliminates individual liability of managers and supervisors under the statute.  The legislation notes that it intends to overrule the Ohio Supreme Court’s Genaro decision and to instead follow long-standing federal law on this issue.  

Fourth, it explicitly adopts the federal standard and affirmative defense from Faragher, for sexual harassment claims. 

Sixth, it makes verdicts for Chapter 4112 claims subject to the tort caps for non-economic damages.  

Seventh, it makes Chapter 4112 the sole and exclusive remedy for employment discrimination, which is similar to federal law.  In other words, there cannot be a common law wrongful discharge claims for violation of public policy against employment discrimination.

Finally, while it retains under §4112.14 the existing right of employees not subject to an arbitration agreement to file suit for age discrimination claims seeking only reinstatement, back pay, costs and attorney’s fees and the existing election of remedies, it added a few wrinkles.   The employee must still elect remedies (i.e., bring this direct action without being able to sue for compensatory or punitive damages or being required to file an OCRC Charge).   These direct actions are still subject to the new two year statute of limitations as described above.   Like other 4112 claims, that limitations period may be tolled if the employee filed a Charge with the OCRC making the same allegations. 

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. 

Ohio Supreme Court Applies Tort Cap to $800K Defamation Judgment Against Employer

This morning, a divided Ohio Supreme Court remanded a $1.55M defamation judgment entered against an employer which a jury found had defamed a nurse who had been involved with a union organization effort.  Wayt v. DHSC, L.L.C., Slip Opinion No. 2018-Ohio-4822.  The Court found that the jury’s $800K compensatory damages award was subject to the $250K non-economic damages cap under Ohio Revised Code §2315.18 because its prior precedent had found defamation to be a personal injury.  

According to the Court’s opinion, the plaintiff nurse was fired by her hospital employer for neglecting her duties and falsifying a medical record. The  head of nursing then reported the plaintiff to the Board of Nursing for patient neglect.  The plaintiff was unable to find another nursing job.   In the meantime, a nursing union filed an unfair labor practice charge with the NLRB asserting that the defendant hospital had  violated the NLRA by refusing to bargain with it and had terminated the plaintiff because of her involvement with the union. After an ALJ ruled in favor of the union, the NLRB successfully petitioned a federal court to order the reinstatement of the plaintiff to her former job at the hospital and the hospital to retract the complaint made to the Nursing Board about the plaintiff.  Nonetheless, one of the plaintiff’s co-workers stated to other nursing that the court order did not make the plaintiff a good nurse or mean that she deserved reinstatement. 

The plaintiff filed a defamation action against the hospital.  A jury awarded her $800K in compensatory damages and $750K in punitive damages.  The hospital sought to have the damages reduced under Ohio’s tort reform act, but was denied by both the trial and appellate courts.  The Ohio Supreme Court agreed only to decide the hospital’s appeal of the amount of compensatory damages.  In particular: whether the cap in R.C. 2315.18 that applies to tort actions seeking noneconomic loss as a result of an alleged injury or loss to person or property also applies to defamation.

The Court initially appeared to agree that injuries to reputation are different than personal injuries. 

R.C. 2315.18(A)(7) provides: “ ‘Tort action’ means a civil action for damages for injury or loss to person or property.”  R.C. 2315.18(B)(2) provides that the maximum noneconomic damages that can be awarded to a plaintiff in a tort action is, barring certain exceptions that do not apply here, $ 250,000.

{¶ 17} Property “means real and personal property.”  R.C. 1.59(E).  The term “property” as used in R.C. 2315.18(A)(7) does not include reputation, and neither party argues to the contrary.

The plaintiff asserted that the Ohio Constitution recognizes the four separate types of injuries. Article I, Section 16 of the Ohio Constitution, provides that courts shall be open to redress injuries to “land, goods, person, or reputation.”

That being said, the Court’s majority held that its decision was not resolved by the plain meaning of the statute because

 We have held for 90 years, however, that defamation is an injury to a person.  See Smith v. Buck, 119 Ohio St. 101, 162 N.E. 382 (1928), paragraph two of the syllabus.

                 . . . .

                We hold that under the plain language of R.C. 2315.18(A)(7), defamation is a “civil action for damages for injury or loss to person.”  This holding, as explained above, is in accord with prior decisions of this court and several other courts that were interpreting similar language.  We see no reason to overturn the well-established precedent that defamation is a “personal injury” according to the plain meaning of the term.

                 . . .

                Assuming arguendo only that the court must look to the canons of statutory construction to determine what the legislature intended by using the phrase “injury or loss to person or property,” the result in this case would be the same.  It is well established that the legislature is presumed to have full knowledge of prior judicial decisions. . . . Moreover, the legislature could easily have drafted the statute to prevent the holding from that case from affecting the outcome of this case; the legislature merely needed to add “defamation” to the list of actions enumerated in R.C. 2315.18(A)(7) to which the caps do not apply.

In addition, the Court declined the plaintiff’s invitation to only apply the damages cap to negligence cases.

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 be changed or 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. 

Ohio Supreme Court Hears Oral Argument on Apportioning Punitive Damages in Retaliation Case

On Wednesday, the Supreme Court entertained oral argument concerning the apportionment of punitive damages among defendants in a wrongful discharge case. As previously reported here, the Cuyahoga County Court of Appeals ruled last year that Ohio's Tort Reform Act required the reduction of $43M in punitive damages to no more than $7M (which was twice the amount of compensatory damages awarded by the jury) in a retaliatory discharge case brought under the Ohio Civil Rights Act where the plaintiff had alleged that he was fired in retaliation for refusing to fire the shift’s three oldest workers. Luri v. Republic Servs., Inc., 2011-Ohio-2389. There was joint and several liability for compensatory damages (under a single-employer theory). The plaintiff argued that the punitive damages should be awarded against each plaintiff individually in order to punish and deter similar misconduct in the future.  Defendants argued that they were prejudiced by the failure of the trial court to bifurcate the case to hear punitive damages separately.

As stated by the Court’s website, the issue presented is “When a jury awards the plaintiff in a civil lawsuit compensatory damages for which multiple defendants are jointly and severally liable, and also finds that each defendant is subject to punitive damages, does the state law capping punitive damages at “two times the amount of the compensatory damages awarded to the plaintiff from that defendant,” allow a punitive damage award against each defendant of two times the total compensatory damages, or does the cap limit the punitive damages recoverable from all the defendants collectively to a total of two times the plaintiff’s compensatory damages?“ In other words, is the punitive damages 'cap' the maximum amount recoverable from each defendant, or from all defendants collectively where the jury found each of multiple defendants subject to punitive damages.

The plaintiff’s argument focused on the apportionment of the punitive damages and led to few questions from the bench. The jury awarded different amounts of punitive damages against each of the five defendants (as requested by the jury interrogatories submitted by the defendants).

The defense attorneys argued that the entire case should be retried because the case was not bifurcated on the issue of punitive damages as required by the Supreme Court’s February decision in Havel v. Villa St. Joseph, 131 Ohio St.3d 235, 2012-Ohio-552. The plaintiff argued at trial about the wealth of the defendants during the liability portion of the case, which Defendants assert prejudiced them, even though – as asserted by the plaintiff’s attorney – the defense objection was waived by the defendants’ failure to object to the questions and arguments at trial. The plaintiff’s attorney also argued that the bifurcation issue was not applicable. Among other things, the defendants did not immediately appeal the denial of their request to bifurcate the case on damages. (Even though the recently decided Havel concluded that bifurcation decisions are final appealable orders, the defendants argued the issue was not that clear and should not prejudice them from raising the issue now).

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.

Ohio Appeals Court Lowers $46.5M Damage Award to $10.5M In Retaliatory Discharge Case

Last Thursday, the Cuyahoga County Court of Appeals ruled that Ohio's Tort Reform Act required the reduction of $43M in punitive damages to no more than $7M (which was twice the amount of compensatory damages awarded by the jury) in a retaliatory discharge case brought under the Ohio Civil Rights Act. Luri v. Republic Servs., Inc., 2011-Ohio-2389. In that case, the plaintiff general manager alleged that his employer manufactured a reason to fire him in April 2007 in violation of Ohio Revised Code § 4112.02(I) after he refused to fire the company's three oldest employees in November 2006. He had protested that one of the older employees had strong performance evaluations and could sue the company for age and disability discrimination. In addition, the plaintiff presented evidence that the defendants had altered and/or fabricated evidence to support its illegal termination decision and then refused to waive his non-competition agreement after firing him.

The Court held that the trial court did not abuse its discretion in refusing to bifurcate the trial (between liability and damages) because the evidence that proved liability was also relevant to the defendant's bad faith, justifying punitive damages. In particular, evidence that the defendants had manufactured evidence proved not only guilty intent in the termination decision, but also bad faith. The Court refused to find an error in the jury instructions because the defendants had failed to ask in the jury interrogatories or instructions for the economic and non-economic damages to be separately specified. In addition to the $3.5M in compensatory damages awarded by the jury, the trial court also awarded over $1M in attorney fees and prejudgment interest. However, the Court of Appeals found that the Tort Reform Act at Ohio Revised Code § 2315.21(D) limited the punitive damages to twice the amount of compensatory damages and those damages should be imposed collectively, rather than per plaintiff. Otherwise, the amount of the $43M punitive damage award did not shock the Court's conscience or constitute a violation of due process under the circumstances.

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.