Ohio Supreme Court Permits Employers to Sue Employees for Maliciously Prosecuting Discrimination Claims.

Today, a divided Supreme Court held that that it does not constitute retaliation per se for an employer to file a lawsuit for malicious prosecution and abuse of process (seeking reimbursement for attorney fees as well as damages) and to seek punitive damages against an employee who had previously engaged in statutorily protected conduct by suing the employer for illegal discrimination. Greer-Burger v. Temesi, Slip Opinion No. 2007-Ohio-6442. However, the employer’s lawsuit must have an objective and good faith basis and cannot be filed simply to harass the employee. Similar to earlier federal cases involving an employer’s right to sue a union (See FYI entry for October 17, 2007), the Court was faced with balancing the employer’s right to seek redress in court under the First Amendment with the employee’s statutory right to seek redress for employment discrimination. The United States Supreme Court has generally held that an employer’s constitutional right to petition the courts cannot be limited by the statutory right of an employer or union. See BE & K Constr. Co. v. Natl. Labor Relations Bd., 536 U.S. 516, 538 (2002). The Ohio Supreme Court ruled that an employer’s lawsuit and claim for punitive damages are objectively based if the employer can show that it would survive a summary judgment motion on its claims.

In this case, the employee had filed suit and lost at trial. After the employer filed suit seeking reimbursement for his attorney fees, etc., and the employee filed for bankruptcy, the employee filed a Charge of Discrimination with the Ohio Civil Rights Commission. The OCRC found probable cause of retaliation and ordered the employer to dismiss the lawsuit and to reimburse the employee for the legal fees which she incurred in defending against the lawsuit (which had already been discharged in bankruptcy). The OCRC’s order was affirmed on appeal, where the appellate court found that employees have an absolute privilege to file suit against their employers for discrimination.

The Ohio Supreme Court reversed. However, its ruling reflects that the OCRC will still have the authority to review an employer’s lawsuit and determine for itself whether the case is likely to survive summary judgment.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-Ohio-6442.pdf.

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.