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Livingston v. Hillside Rehab. Hosp

Supreme Court of Ohio
Jul 23, 1997
79 Ohio St. 3d 249 (Ohio 1997)

Summary

reversing without opinion the appellate court, which had held that no wrongful discharge claim based on § 4101.17 existed

Summary of this case from Ziegler v. IBP Hog Market, Inc.

Opinion

No. 97-491

Submitted May 20, 1997 —

Decided July 23, 1997.

APPEAL from the Court of Appeals for Trumbull County, No. 95-T-5360.

Green, Haines, Sgambati, Murphy Macala Co., L.P.A., Ira J. Mirkin and Barry Laine, for appellant.

Guarnieri Secrest, Randil J. Rudloff and Deborah L. Smith, for appellees.


The discretionary appeal is allowed.

The judgment of the court of appeals is reversed, and the cause is remanded to the trial court on the authority of Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 677 N.E.2d 308.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.

COOK and LUNDBERG STRATTON, JJ., dissent.


I respectfully dissent. Even if I were to agree with the reasoning employed by a majority of this court in Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 677 N.E.2d 308, I would not agree that the holding in that case determines this appeal.

Kulch involved an employee who arguably met the statutory parameters for bringing a retaliatory discharge claim against his employer under R.C. 4113.52 (Ohio's "Whistleblower Statute") and/or Section 651 et seq., Title 29, U.S. Code (a federal whistleblower statute). Extending Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981, a majority of this court held that Kulch could use both whistleblower statutes to support a common-law cause of action in tort for wrongful discharge. Kulch, 78 Ohio St.3d at 151-154, 677 N.E.2d at 321-323. In reaching this decision, the majority relied on the limited nature of the civil remedies under the whistleblower statutes to establish the "jeopardy element" of the four-part analysis approved by the lead opinion in Painter v. Graley (1994), 70 Ohio St.3d 377, 639 N.E.2d 51, fn. 8 (citing Perritt, The Future of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie? [1989], 58 U.Cin.L.Rev. 397, 398-399) for determining when it is appropriate to recognize a cause of action based in tort for wrongful discharge in violation of public policy. Kulch, 78 Ohio St.3d at 154-155, 677 N.E.2d at 323-324. The Kulch majority also adjudged the remedies prescribed by the General Assembly under R.C. 4113.52 too limited for that statute to be the exclusive state remedy. Id. at 155-162, 677 N.E.2d at 324-329.

The appellant in this case brought an age discrimination claim under former R.C. 4101.17(A) (renumbered as R.C. 4112.14 by Am.Sub.S.B. No. 162, effective October 29, 1995) and a common-law wrongful discharge claim under Greeley, based on an alleged violation of former R.C. 4101.17(A). 143 Ohio Laws, Part III, 4154. Interpreting Greeley, supra, and Provens v. Stark Cty. Bd. of Mental Retardation Dev. Disabilities (1992), 64 Ohio St.3d 252, 594 N.E.2d 959, the appellate court determined that an age discrimination claim under former R.C. 4101.17(A) provided remedies as broad as those available under Greeley and, therefore, a Greeley claim was unavailable.

Given that Kulch was decided based on the perceived inadequacy of the statutorily prescribed remedy available to a discharged whistleblower, one would expect this case, where the age discrimination statute has no restriction on remedies, to be affirmed. Perhaps the unavailability of a jury trial for such an age discrimination claim is the premise for the majority's decision to reverse. As noted by the appellate court, Livingston acknowledged that she had no right to a jury trial for her statutory claim, but sought a jury for her Greeley claim.

If the lack of a jury trial is the rationale for the majority decision to reverse, Kulch does nothing to explain why lack of the right to trial by jury "jeopardizes" the public policy embodied in former R.C. 4101.17(A) so as to justify recognition of a common-law cause of action under the analysis approved in Painter. In fact, absent an established constitutional right to trial by jury, such a conclusion could only be rooted in a determination that trial courts are in some respect incompetent to pass on the issues presented by such a case. See Hoops v. United Tel. Co. of Ohio (1990), 50 Ohio St.3d 97, 553 N.E.2d 252 (holding that actions for employment discrimination did not exist at common law and there was no statutory or constitutional right to a jury trial under former R.C. 4101.17). Likewise, the Kulch decision, which analyzes only the state and federal whistleblower statutes, does not decide the issue of whether the General Assembly intended to create former R.C. 4101.17(A) and its related statutory provisions as an exclusive state remedy.

In Kulch, I dissented from the majority's extension of Greeley to include claims covered under our Whistleblower Statute. See Kulch, 78 Ohio St.3d at 164-167, 677 N.E.2d at 330-332 (Cook, J., concurring in part and dissenting in part). Today's further extension of Greeley again substitutes the personal public policy choice of a majority of the court for a contrary policy statement of the General Assembly, as evinced by the statute. The court accomplishes this extension of Greeley under the cloak of a reversal "on the authority of" entry. At the very least, this case should be briefed and argued, permitting this court to issue a fully informed opinion supported by legal analysis.

LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.


Summaries of

Livingston v. Hillside Rehab. Hosp

Supreme Court of Ohio
Jul 23, 1997
79 Ohio St. 3d 249 (Ohio 1997)

reversing without opinion the appellate court, which had held that no wrongful discharge claim based on § 4101.17 existed

Summary of this case from Ziegler v. IBP Hog Market, Inc.

In Livingston v. Hillside Rehabilitation Hosp., 680 N.E.2d 1220 (Ohio 1997), the Ohio Supreme Court summarily reversed the judgment of the court of appeals, which held that a Greeley claim will not lie based on the public policy set forth in O.R.C. § 4112.14.

Summary of this case from Kaltenmark v. K-Mart, Inc.

noting that "[p]erhaps the unavailability of a jury trial for an [RC § 4101.17] claim is the premise for the majority's decision to reverse"

Summary of this case from Ziegler v. IBP Hog Markets, Inc.

In Livingston, the plaintiff brought an age discrimination claim under an Ohio statute and a common law wrongful discharge claim based on that same statute. The appellate court determined that the statute provided remedies as broad as those available for the wrongful discharge claim, and thus the wrongful discharge claim was unavailable to the plaintiff.

Summary of this case from Cavin v. Honda of America Mfg., Inc.

noting that Kulch does not govern the question of whether the General Assembly intended Ohio's age discrimination statute's remedies to be exclusive

Summary of this case from Cavin v. Honda of America Mfg., Inc.

remanding claim for wrongful discharge in violation of public policy on the basis of age in view of the Court's reasoning in Kulch

Summary of this case from Arthur v. Armco, Inc.

In Livingston v. Hillside Rehab. Hosp., 79 Ohio St.3d 249, 680 N.E.2d 1220 (1997), the Ohio Supreme Court applied the reasoning of Kulch to a common law tort claim of age discrimination, notwithstanding the existence of a state statute prohibiting employment discrimination on the basis of age.

Summary of this case from Yetts v. Itw-Nifco, Inc.

In Livingston v. Hillside Rehab. Hosp. (1997), 79 Ohio St.3d 249, plaintiff employee brought an age discrimination claim pursuant to R.C. 4101.17 (since recodified at R.C. 4112.14) as well as a claim for tortious wrongful discharge in violation of public policy.

Summary of this case from Ferraro v. B.F. Goodrich Company

In Livingston v. Hillside Rehab. Hosp. (1997), 79 Ohio St.3d 249, the Ohio Supreme Court, on authority of Kulch, recognized a public policy cause of action for an age discrimination claim despite the fact Ohio's age discrimination statute, R.C. 4112.14, provided a full range of remedies.

Summary of this case from RAUHUFF v. AMERICAN FAN CO.
Case details for

Livingston v. Hillside Rehab. Hosp

Case Details

Full title:LIVINGSTON, APPELLANT, v. HILLSIDE REHABILITATION HOSPITAL ET AL.…

Court:Supreme Court of Ohio

Date published: Jul 23, 1997

Citations

79 Ohio St. 3d 249 (Ohio 1997)
680 N.E.2d 1220

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