Livingston v. Hillside Rehab. Hosp. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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LIVINGSTON, APPELLANT, V. HILLSIDE REHABILITATION HOSPITAL ET AL.,
APPELLEES.
[Cite as Livingston v. Hillside Rehab. Hosp. (1997), ___ Ohio St.3d ___.]
Employment relations -- Age discrimination by employer -- At-will employee
discharged allegedly on the basis of her age is entitled to maintain
common-law tort action against employer for wrongful discharge in
violation of public policy.

(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.

COOK, J., dissenting. 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

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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

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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.

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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.

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