Bickers v. Western & Southern Life Insurance , 116 Ohio St. 3d 351 ( 2007 )

[Cite as Bickers v. W. & S. Life Ins. Co., 116 Ohio St. 3d 351, 2007-Ohio-6751.]
BICKERS, APPELLEE, v. WESTERN & SOUTHERN LIFE
INSURANCE COMPANY, APPELLANT.
[Cite as Bickers v. W. & S. Life Ins. Co.,
116 Ohio St. 3d 351, 2007-Ohio-6751.]
Employment – Wrongful discharge – No common-law action exists for wrongful
discharge in violation of public policy for employee who is terminated
while receiving workers’ compensation – Cause of action for retaliatory
discharge under R.C. 4123.90 is exclusive remedy for employees claiming
wrongful termination in violation of rights provided by Workers’
Compensation Act.
(No. 2006-0617 — Submitted March 14, 2007 — Decided December 20, 2007.)
APPEAL from the Court of Appeals for Hamilton County,
No. C-040342, 2006-Ohio-572.
__________________
SYLLABUS OF THE COURT
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. (Coolidge v.
Riverdale Local School Dist., 100 Ohio St. 3d 141, 2003-Ohio-5357, 797
N.E.2d 61, limited.)
__________________
CUPP, J.
{¶ 1} In this discretionary appeal, we examine the boundaries of our
decision in Coolidge v. Riverdale Local School Dist., 100 Ohio St. 3d 141, 2003-
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Ohio-5357, 797 N.E.2d 61, and determine whether the tort of wrongful discharge
in violation of public policy applies to a nonretaliatory discharge of an injured
worker receiving workers’ compensation benefits.
{¶ 2} We hold that Coolidge is limited to considerations of “good and
just cause” for termination under R.C. 3319.16 and does not create a claim of
wrongful discharge in violation of public policy for an employee who is
discharged while receiving workers’ compensation.
I
{¶ 3} In 1994, appellee, Shelley Bickers, was injured in the course of her
employment with Western & Southern Life Insurance Company (“Western &
Southern”). Bickers filed a claim for workers’ compensation, and the claim was
allowed for multiple conditions. Following the injury, and directly related to the
allowed conditions in the workers’ compensation claim, Bickers experienced
periods of inability to work. During such periods, Western & Southern did not
provide her a position within the restrictions set by her physician. In 2002,
Western & Southern terminated Bickers while she was still receiving temporary
total disability benefits related to her workers’ compensation claim.
{¶ 4} Bickers filed a complaint for wrongful discharge. Among other
things, Bickers alleged that while receiving temporary total disability benefits, she
had been wrongfully terminated from Western & Southern in violation of the
state’s public policy. In support of the foregoing claim, Bickers relied on
Coolidge v. Riverdale Local School Dist., 100 Ohio St. 3d 141, 2003-Ohio-5357,
797 N.E.2d 61.
{¶ 5} In response, Western & Southern filed a Civ.R. 12(B)(6) motion to
dismiss, which the trial court granted. Bickers appealed.
{¶ 6} The court of appeals reversed. The appellate court determined that
Bickers’s situation was sufficiently similar to that presented in Coolidge that she
met the requirements to maintain a Coolidge-based claim of wrongful discharge
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in violation of public policy in a workers’ compensation context. Bickers v. W. &
S. Life Ins. Co., Hamilton App. No. C-040342, 2006-Ohio-572. The appeals court
also refused to impose the procedural requirements in R.C. 4123.90, concluding
that compliance with those requirements was not necessary to maintain a
Coolidge-based public-policy wrongful-discharge claim.
{¶ 7} Western & Southern then appealed to this court, and we accepted
jurisdiction.
II
{¶ 8} This court’s 17-year history with the tort of “wrongful discharge in
violation of public policy” has been filled with fits and starts. For example, the
tort of wrongful discharge in violation of public policy was first recognized in
1990. Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St. 3d
228, 234, 551 N.E.2d 981. Two years later, Greeley was partially overruled, but
its analysis was reinstated after another two years passed. See Tulloh v. Goodyear
Atomic Corp. (1992), 62 Ohio St. 3d 541, 584 N.E.2d 729 (partially overruling the
Greeley decision); Painter v. Graley (1994), 70 Ohio St. 3d 377, 639 N.E.2d 51
(reinstating the Greeley analysis).
{¶ 9} One of this court’s more recent statements on the tort of wrongful
discharge in violation of public policy is Coolidge v. Riverdale Local School
Dist., 100 Ohio St. 3d 141, 2003-Ohio-5357, 797 N.E.2d 61. In Coolidge, a public
school district’s board of education discharged one of its teachers while she was
absent from her duties because of a work-related injury. The teacher was
receiving temporary total disability benefits under the workers’ compensation
system for that injury. Significantly, the teacher was not an at-will employee.
The school district employed the teacher under a contract governed by R.C.
3319.16, which afforded her protection from termination without “good and just
cause.”
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{¶ 10} The teacher in Coolidge argued that the “good and just cause”
provision of R.C. 3319.16 should be construed to protect her from discharge by
the school district solely because of her absence due to her work-related injury.
To support her argument, the teacher pointed to R.C. 4123.56, the statute allowing
temporary total disability compensation, and R.C. 4123.90, the antiretaliation
statute.1 In resolving the matter, we agreed with the teacher’s argument.
{¶ 11} Bickers’s claim has afforded us the opportunity to revisit the
Coolidge decision. Having duly considered the Coolidge opinion and the
circumstances presented by Bickers, we limit Coolidge to holding that terminating
a teacher for absences due to a work-related injury while the teacher is receiving
workers’ compensation benefits is a termination without “good and just cause”
under R.C. 3319.16. 2 Because Bickers is not a teacher protected by a contract
covered by R.C. 3319.16, Bickers is not entitled to the benefit of the holding in
Coolidge and may not assert a wrongful-discharge claim in reliance on Coolidge.
Bickers is an at-will employee. Because Coolidge does not create a cause of
action for an at-will employee who is terminated for nonretaliatory reasons while
receiving workers’ compensation, the trial court properly dismissed Bickers’s
claim.
1. {¶ a} The relevant text of R.C. 4123.90 provides:
{¶ b} “No employer shall discharge, demote, reassign, or take any punitive action against any
employee because the employee filed a claim or instituted, pursued or testified in any proceedings
under the workers' compensation act for an injury or occupational disease which occurred in the
course of and arising out of his employment with that employer. Any such employee may file an
action in the common pleas court of the county of such employment in which the relief which may
be granted shall be limited to reinstatement with back pay, if the action is based upon discharge, or
an award for wages lost if based upon demotion, reassignment, or punitive action taken, offset by
earnings subsequent to discharge, demotion, reassignment, or punitive action taken, and payments
received pursuant to section 4123.56 and Chapter 4141. of the Revised Code plus reasonable
attorney fees.”
2. As provided in the first sentence of R.C. 3319.16, “The contract of any teacher employed by
the board of education of any city, exempted village, local, county, or joint vocational school
district may not be terminated except for gross inefficiency or immorality; for willful and
persistent violations of reasonable regulations of the board of education; or for other good and just
cause.”
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III
{¶ 12} In framing the issue presented in Coolidge, we stated that “if
Coolidge can show that her discharge contravened public policy expressed in the
Workers’ Compensation Act, she will have established that her discharge was
without good and just cause under R.C. 3319.16.” 100 Ohio St. 3d 141, 2003-
Ohio-5357, 797 N.E.2d 61, at ¶20. In resolving the issue, we stated in general
terms that “[a]n employee who is receiving temporary total disability
compensation pursuant to R.C. 4123.56 may not be discharged solely on the basis
of absenteeism or inability to work, when the absence or inability to work is
directly related to an allowed condition.” Id. at syllabus. In applying that general
syllabus to the narrow issue, we specifically found that since the work-related
injury for which the teacher received temporary total disability benefits caused
her absenteeism and inability to work, the school district violated public policy
when it discharged the teacher. Id. at ¶52. Consequently, the school district did
not have “good and just cause” for discharging the teacher under R.C. 3319.16.
Id.
{¶ 13} The extent of our syllabus and opinion in Coolidge has been the
subject of considerable debate. Some have interpreted Coolidge as expanding the
public-policy exception to the employment-at-will doctrine. See, e.g., Kusens v.
Pascal Co., Inc. (C.A.6, 2006), 448 F.3d 349, 365-366; Welty v. Honda of Am.
Mfg., Inc. (S.D.Ohio 2005), 411 F. Supp. 2d 824, 834; Hall v. ITT Automotive
(N.D.Ohio 2005), 362 F. Supp. 2d 952, 962-963. Others have concluded that
Coolidge only “expanded the type of action that constitutes retaliation under R.C.
4123.90 to include termination for absenteeism while on [temporary total
disability].” Brooks v. QualChoice, Inc., Cuyahoga App. No. 85692, 2005-Ohio-
5136, ¶11.
{¶ 14} Commentators have also expressed concern with the decision.
Ellis, Absenteeism Due to a Work-Related Injury: A Critique of Ohio’s Most
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Recent Public Policy Exception (2004), 54 Case W.Res.L.Rev. 1415; Siegel &
Stephen, Baldwin’s Ohio Employment Practices Law (2007), Section 3:39. One
commentator stated that it “would not be an overstatement to characterize as
‘shocking’ the decision issued by the Ohio Supreme Court in [Coolidge].”
Wilkinson & Perry, Temporary Total and Coolidge: Are Injured Workers
“Fireproof”? (Nov./Dec. 2003), 18 Workers’ Comp.J. of Ohio 6, 73. Although
the goal of permitting “injured workers to recover from a work-related injury
without fear of losing their job” is laudable, Coolidge has also been viewed as a
“logistical nightmare.” Id. at 73. “[P]reventing employers from managing their
workforce to ensure production” and creating an opportunity for “malingering and
abuse in the area of temporary total compensation” are among the noted ills of
Coolidge’s real world application. Id.
{¶ 15} We find it necessary to clarify the Coolidge opinion. Although
certain language in Coolidge could be interpreted as creating a new exception to
the employment-at-will doctrine for employees who are terminated while
receiving workers’ compensation, a careful reading reveals that the actual holding
is narrower than the opinion’s overbroad dicta. The language from the text of the
opinion provides context and reveals our overall rationale, but the Coolidge court
decided a very limited issue. Specifically, the Coolidge court held that judicial
inquiry is warranted into whether an employer acted contrary to public policy
when it discharged an employee when R.C. 3319.16 is implicated. As a result, the
holding in Coolidge is confined to considerations of whether “good and just
cause” supported the termination of an employee protected under R.C. 3319.16.
Coolidge, 100 Ohio St.3d at ¶52.
{¶ 16} A significant omission from the Coolidge opinion itself supports
the view that its application is limited: it contains no discussion of the elements of
a claim of wrongful discharge in violation of public policy as set forth in Painter
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v. Graley, 70 Ohio St. 3d 377, 639 N.E.2d 51,3 and Leininger v. Pioneer Natl.
Latex, 115 Ohio St. 3d 311, 2007-Ohio-4921, 875 N.E.2d 36, ¶8-12. Clearly,
Painter was not relevant to the disposition of the Coolidge case because the
Coolidge holding derived from the “good and just cause” provision of R.C.
3319.16.
IV
{¶ 17} In addition to concluding that Coolidge is inapplicable to Bickers’s
situation, we also hold that 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.
{¶ 18} This conclusion is supported by the origin and nature of the
workers’ compensation system. Prior to the enactment of the Workers’
Compensation Act in 1913, common-law tort principles governed recovery for
work-related injuries. Fulton, Ohio Workers' Compensation Law (2d Ed.1998) 3,
Section 1.2. The common-law system, however, proved unable to address the
social and economic consequences arising from industrial accidents. State ex rel.
Yaple v. Creamer (1912), 85 Ohio St. 349, 389, 97 N.E. 602. Eventually, it
became clear that the tort-based system should be replaced by a system charging
the economic losses incurred by injured Ohio workers and their families, without
3. {¶ a} These four elements are:
{¶ b} “ ‘1. That clear public policy existed and was manifested in a state or federal constitution,
statute or administrative regulation, or in the common law (the clarity element).
{¶ c} “ ‘2. That dismissing employees under circumstances like those involved in the plaintiff's
dismissal would jeopardize the public policy (the jeopardy element).
{¶ d} “ ‘3. The plaintiff's dismissal was motivated by conduct related to the public policy (the
causation element).
{¶ e} “ ‘4. The employer lacked overriding legitimate business justification for the dismissal
(the overriding justification element).’ ” (Emphasis sic.) Painter v. Graley (1994), 70 Ohio St. 3d
377, 639 N.E.2d 51, fn. 8, quoting H. Perritt, The Future of Wrongful Dismissal Claims: Where
Does Employer Self-Interest Lie? (1989), 58 U.Cin.L.Rev. 397, 398-399.
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fault or wrongdoing, to the industry rather than to the individual or society as a
whole. See, e.g., Indus. Comm. v. Weigandt (1921), 102 Ohio St. 1, 4-5, 130 N.E.
38; State ex rel. Munding v. Indus. Comm. (1915), 92 Ohio St. 434, 450, 111 N.E.
299.
{¶ 19} In this spirit, the people of Ohio adopted a constitutional provision
authorizing the General Assembly to establish the workers’ compensation system
by statute. Section 35, Article II, Ohio Constitution. This statutory framework
supplanted, rather than amended or supplemented, the unsatisfactory common-law
remedies. Indus. Comm. v. Kamrath (1928), 118 Ohio St. 1, 3-4, 160 N.E. 470;
Weigandt, 102 Ohio St. at 7, 130 N.E. 38. Moreover, the Act “operates as a
balance of mutual compromise between the interests of the employer and the
employee whereby employees relinquish their common law remedy and accept
lower benefit levels coupled with the greater assurance of recovery and employers
give up their common law defenses and are protected from unlimited liability."
Blankenship v. Cincinnati Milacron Chem., Inc. (1982), 69 Ohio St. 2d 608, 614,
23 O.O.3d 504, 433 N.E.2d 572. The underlying premise of the workers’
compensation system arises from this compromise. Fulton, Ohio Workers’
Compensation Law, at 4, Section 1.2.
{¶ 20} The policy choice between permitting and prohibiting the
discharge from employment of an employee who has been injured at work is a
difficult one, as it inevitably creates a burden of some degree upon either the
employer or the employee.
{¶ 21} Should the policy choice be to deny employers the exercise of their
employment-at-will prerogative and require them to hold open the jobs of injured
employees for indefinite periods of time, then employers will be burdened with
employees unable to perform the work for which they were hired and an inability
to obtain permanent replacements. This resolution would be particularly onerous
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on small employers with few employees, who lack the ability to shift the duties of
an injured employee to other employees.
{¶ 22} Should the policy choice be to permit an employer to terminate a
worker who is injured on the job and cannot work as a result, then the worker
suffers not only the burden of being injured but also the burden of unemployment
at a time when seeking a new position is made more difficult by the injury.
{¶ 23} In addressing this difficult policy issue, which lacks wholly
satisfactory solutions, the General Assembly chose to proscribe retaliatory
discharges only. Employers may not retaliate against employees for pursuing a
workers’ compensation claim. R.C. 4123.90. It is within the prerogative and
authority of the General Assembly to make this choice when determining policy
in the workers’ compensation arena and in balancing, in that forum, employers’
and employees’ competing interests. See, e.g., Rambaldo v. Accurate Die Casting
(1992), 65 Ohio St. 3d 281, 288, 603 N.E.2d 975. We may not override this
choice and superimpose a common-law, public-policy tort remedy on this wholly
statutory system. Id.
{¶ 24} Moreover, it would be inappropriate for the judiciary to presume
the superiority of its policy preference and supplant the policy choice of the
legislature. For it is the legislature, and not the courts, to which the Ohio
Constitution commits the determination of the policy compromises necessary to
balance the obligations and rights of the employer and employee in the workers’
compensation system. Section 35, Article II, Ohio Constitution.
{¶ 25} Against this backdrop, it becomes apparent 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. Bickers’s remedy must be found within the workers’ compensation statutes.
In this regard, however, Bickers conceded early in the litigation that she had not
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complied with the procedural requirements of R.C. 4123.90. Because Bickers
does not assert a statutory retaliatory discharge claim, she fails to state a claim for
which relief can be granted, and the trial court did not err in dismissing her
complaint.
V
{¶ 26} Therefore, based on the foregoing, we hold 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.
{¶ 27} For the reasons expressed herein, we reverse the judgment of the
court of appeals.
Judgment reversed.
LUNDBERG STRATTON, O’CONNOR, O’DONNELL, and LANZINGER, JJ.,
concur.
MOYER, C.J., and PFEIFER, J., dissent.
__________________
MOYER, C.J., dissenting.
I
{¶ 28} The syllabus of our unanimous decision in Coolidge v. Riverdale
Local School Dist., 100 Ohio St. 3d 141, 2003-Ohio-5357, 797 N.E.2d 61, states
that “[a]n employee who is receiving temporary total disability compensation
pursuant to R.C. 4123.56 may not be discharged solely on the basis of
absenteeism or inability to work, when the absence or inability to work is directly
related to an allowed condition.” The majority states that our holding in that case
was actually very narrow and is applicable only “to considerations of ‘good and
just cause’ for termination under R.C. 3319.16.” Because both the text and
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underlying logic of Coolidge, as well as the nature of the tort of wrongful
discharge in violation of public policy, belie such a limitation, I respectfully
dissent.
{¶ 29} Additionally, since its decision renders the remaining issues in this
case moot, the majority analyzes only the first of three submitted issues. Because
I arrive at a contrary conclusion, I address all three issues herein.
II
{¶ 30} The first issue before us is whether Coolidge creates a public-
policy tort claim for wrongful discharge. An examination of Coolidge reveals
that we enunciated a clear public policy there that transcends the differences
between at-will and contract employment.
{¶ 31} Cheryl Coolidge was receiving temporary total disability benefits
under an allowed workers’ compensation claim when she was terminated for
failing to attend work. Coolidge, 100 Ohio St. 3d 141, 2003-Ohio-5357, 797
N.E.2d 61, at ¶ 7–11. She subsequently sued, and her claim proceeded to this
court for a determination of “whether public policy embodied in the Workers’
Compensation Act protects an employee who is receiving [temporary total
disability] compensation from being discharged solely because of the disabling
effects of the allowed injury, that is, absenteeism and inability to work.” Id. at ¶
18.
{¶ 32} We noted from the outset that claims of wrongful discharge in
violation of public policy, “whether based on workers’ compensation or other
law, originated, and [were] generally conceived in Ohio and elsewhere, as an
exception to the employment-at-will doctrine.” Coolidge, 100 Ohio St. 3d 141,
2003-Ohio-5357, 797 N.E.2d 61, at ¶ 19. Even though Coolidge was not an at-
will employee—she was a teacher working under a collective-bargaining
agreement and was protected by R.C. 3319.16 from termination without “good
and just cause”—we stated that this fact “does not mean that [her employer] can
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legally terminate Coolidge’s teaching contract for reasons that are repugnant to
public policy.” Id. at ¶ 20.
{¶ 33} After addressing those preliminary concerns, we analyzed the
prevailing majority and minority views on the issue and adopted the minority
view that public policy prohibits terminating employees on temporary total
disability leave. Id. at ¶ 26–42. We found support for this policy in R.C.
4123.56, the Workers’ Compensation Act provision on temporary total disability
compensation, noting that it was directed at providing financial assistance to
injured employees so that they may have time to recover from their injuries and
return to work. Id. at ¶ 21, 44. Likewise, we determined that the antiretaliation
statute in the act, R.C. 4123.90, protects employees who apply for workers’
compensation benefits to which they are entitled from losing their jobs. Id. at ¶
43. Applying that concept to Coolidge’s situation, we determined that, without a
public-policy provision in place to protect employees from termination while on
temporary total disability, employees would be forced “to choose between the
enjoyment of benefits to which [they are] entitled and the loss of employment.”
(Emphasis omitted.) Id.
{¶ 34} Given those determinations, we held that “the policy of protection
embodied in the Workers’ Compensation Act can be effectuated only if an
employer is not permitted to discharge an employee for being absent from work
due to an allowed injury for which the employee is receiving [temporary total
disability] compensation.” Coolidge, 100 Ohio St. 3d 141, 2003-Ohio-5357, 797
N.E.2d 61, at ¶ 46. We followed this statement with the syllabus language noted
above. Only after this public policy was recognized and approved did we apply it
to the particular facts of Coolidge’s case, noting that “her discharge constitutes a
violation of public policy and, therefore, is without ‘good and just cause’ under
R.C. 3319.16 [the statute governing termination of a teacher’s contract].” Id. at ¶
52.
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{¶ 35} Neither the explicitly framed issue nor the syllabus language limits
this public policy to contract employment situations. We clearly held that the
underlying purposes of the Workers’ Compensation Act would be defeated if an
employer could terminate an employee for missing work as a direct result of a
temporary total disability recognized through a workers’ compensation claim.
This policy is important regardless of whether one is an at-will employee, a party
to an employment contract, or protected by a statute that permits termination only
for “good and just cause.”
{¶ 36} The majority opinion ignores this clear policy in favor of factual
distinctions. It cites the fact that Coolidge was a contract employee while
appellee Shelley Bickers was not and notes that we did not address the elements
of a claim for wrongful discharge in violation of public policy in that case. I
acknowledge these differences, but find them to be immaterial.
{¶ 37} As the majority states, the first element of the four-part test for
wrongful discharge in violation of public policy is that a “ ‘clear public policy
existed and was manifested in a state or federal constitution, statute or
administrative regulation, or in the common law.’ ” Painter v. Graley (1994), 70
Ohio St. 3d 377, 384, 639 N.E.2d 51, fn. 8, quoting H. Perritt, The Future of
Wrongful Dismissal Claims: Where Does Employer Self Interest Lie? (1989), 58
U.Cin.L.Rev. 397, 398. Our rule is not that a clear public policy must first be
expressed in an at-will employment case before it can be used to support
wrongful-discharge claims; so long as one of the listed sources reveals it, the
policy is sufficient. See id.
{¶ 38} While the public policy in Coolidge manifested itself in a case
about good-and-just-cause termination, it was still manifested in the statutory and
common law. Moreover, our opinion plainly invoked the idea of public-policy
exceptions to at-will employment and noted that the same idea should protect
someone like Coolidge who was not an at-will employee. See Coolidge, 100
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Ohio St.3d 141, 2003-Ohio-5357, 797 N.E.2d 61, at ¶ 19–20. Unless we
explicitly overrule Coolidge, there is no reason to deprive Bickers of the benefit
of this clear public policy just because she was an at-will employee.
{¶ 39} While the majority is clearly uncomfortable with the result in
Coolidge, stare decisis demands that we continue to apply the common law until it
is overruled. See Rocky River v. State Emp. Relations Bd. (1989), 43 Ohio St. 3d
1, 4–5, 539 N.E.2d 103. Limiting the policy to one type of employment is
inappropriate; it either exists or it does not exist. Therefore, I would affirm the
judgment of the court of appeals on this issue.
III
{¶ 40} The second issue in this case is whether Wiles v. Medina Auto
Parts, 96 Ohio St. 3d 240, 2002-Ohio-3994, 773 N.E.2d 526, precludes a public-
policy claim premised on Coolidge because the statute adequately protects the
public interest at issue. For the following reasons, I would hold that Wiles does
not prevent Bickers from pursuing her cause of action.
{¶ 41} Wiles examined the second element of the tort of wrongful
discharge in violation of public policy, whether “ ‘ “dismissing employees under
circumstances like those involved in the plaintiff's dismissal would jeopardize the
public policy.” ’ ” Id. at ¶ 8, quoting Painter, 70 Ohio St. 3d at 384, 639 N.E.2d
51, fn. 8, quoting Perritt, supra, at 399. Wiles sought to bring a claim of wrongful
discharge in violation of public policy premised on the federal Family and
Medical Leave Act, Section 2601 et seq., Title 29, U.S. Code, arguing that the
remedies in that statutory scheme did not provide “ ‘make whole tort relief,’ ”
which jeopardized the clear public policy in favor of family medical leave. Wiles,
96 Ohio St. 3d 240, 2002-Ohio-3994, 773 N.E.2d 526, at ¶ 19.
{¶ 42} We disagreed, holding that a public policy is not jeopardized just
because the statutory scheme does not afford a plaintiff the full panoply of
damages available in a tort action. Id. at ¶ 20–22. Instead, public policy is
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jeopardized only when there are no alternative means of enforcing the public
policy or, if a particular statute applies, the remedies therein are inadequate. Id. at
¶ 15–20. Under this rule, we rejected Wiles’s claim, as the remedies in the FMLA
sufficiently addressed his claimed injury. Id. at ¶ 22.
{¶ 43} In this case, appellant, Western & Southern Life Insurance
Company, invokes this rule, arguing that R.C. 4123.90 provides adequate
statutory remedies to address the public policy identified in Coolidge, and thus
Bickers’s claim fails the jeopardy element. I disagree.
{¶ 44} R.C. 4123.90 provides, “No employer shall discharge, demote,
reassign, or take any punitive action against any employee because the employee
filed a claim or instituted, pursued or testified in any proceedings under the
workers' compensation act for an injury or occupational disease which occurred in
the course of and arising out of his employment with that employer.” (Emphasis
added.) By its plain language, the statute protects an employee against whom the
employer has retaliated because the employee filed a claim for compensation or
otherwise pursued a claim for an injury that occurred in the course and scope of
employment. As a remedy, it gives injured employees the ability to seek
reinstatement with back pay, lost wages, and attorney fees. Id.
{¶ 45} However, R.C. 4123.90 does not provide a remedy to employees
whose employment has been terminated for absenteeism that is directly related to
the employee’s temporary total disability. Dismissing employees under such
circumstances would jeopardize the clear public policy against that action, as it
would allow an employer to force an employee “to choose between the enjoyment
of [workers’ compensation] benefits to which he or she is entitled and the loss of
employment.” (Emphasis omitted.) Coolidge, 100 Ohio St. 3d 141, 2003-Ohio-
5357, 797 N.E.2d 61, at ¶ 43. Because R.C. 4123.90 provides no remedy for this
circumstance, the jeopardy element is met. I would therefore affirm the holding
of the court of appeals on this issue.
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IV
{¶ 46} The final issue presented for our review is whether Bickers’s claim
must meet the notice and filing prerequisites set forth in R.C. 4123.90. Under the
above reasoning, Bickers’s remedy lies with an action for wrongful discharge in
violation of public policy, not with R.C. 4123.90. She was therefore not required
to comply with its strict procedural limitations. Because actions for wrongful
discharge in violation of public policy are not specifically covered by any
statutory section, they are subject to the general, four-year limitations period set
forth in R.C. 2305.09(D). See Pytlinski v. Brocar Prod., Inc. (2002), 94 Ohio
St.3d 77, 80, 760 N.E.2d 385. I would therefore affirm the holding of the court of
appeals on this issue.
V
{¶ 47} Given the clear public policy manifested in Coolidge and the lack
of an adequate statutory remedy for Bickers’s discharge, I would affirm the
judgment of the court of appeals and allow Bickers to proceed in the trial court on
her action for wrongful discharge in violation of public policy.
PFEIFER, J., concurs in the foregoing opinion.
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Kearns Co., L.P.A., and Michael A. Kearns; William D. Snyder &
Associates and Gregory J. Claycomb; and Gittes & Schulte and Frederick M.
Gittes, for appellee.
Frost Brown Todd L.L.C., George E. Yund, Joanne W. Glass, and Kasey
Bond, for appellant.
Frantz Ward L.L.P., Michael J. Frantz, Keith A. Ashmus, and Kelly S.
Lawrence, urging reversal for amicus curiae Ohio Management Lawyers
Association.
16
January Term, 2007
Thompson & Bishop and Christy B. Bishop; and Gittes & Schulte and
Frederick M. Gittes, urging affirmance for amicus curiae Ohio Employment
Lawyers Association.
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17