Did the Ohio Supreme Court wipe out Greeley Claims in Leininger?

nospam@example.com (Neil Klingshirn) — Thu, 27 Sep 2007 09:45:23 -0500

The Ohio Supreme Court today decided Leininger v. Pioneer National Latex. The Leininger decision restricts the public policy exception to employment at will in Ohio. This post assumes that the reader is familiar with Ohio employment at will law and the exception to it created by Greeley v. Miami Valley Maintenance Contrs., (1990), 49 Ohio St. 3d 228.

Greeley’s employment was terminated because he was subject to a court’s wage-withholding order. Although R.C. 3113.213(D) clearly prohibited the employer’s action, that statute provided only for the employer to be fined for a violation and did not grant the employee any civil remedies. The Ohio Supreme Court held in his case that “[p]ublic policy warrants an exception to the employment-at-will doctrine when an employee is discharged or disciplined for a reason which is prohibited by statute.”

Later, Greeley was extended and claims for wrongful discharge were allowed for employment terminations that violated public policy as expressed in sources other than the Revised Code. “ ‘Clear public policy’ sufficient to justify an exception to the employment-at-will doctrine is not limited to public policy expressed by the General Assembly in the form of statutory enactments, but may also be discerned as a matter of law based on other sources, such as the Constitutions of Ohio and the United States, administrative rules and regulations, and the common law.” Painter v. Graley (1994), 70 Ohio St.3d 377, 639 N.E.2d 51, paragraph three of the syllabus.

In 2002, the Ohio Supreme Court seriously restricted Greeley rights by holding that Greeley rights are available only if :

the absence of a cognizable Greeley claim based solely on a violation of the (source of the public policy, there the FMLA) would seriously compromise the Act's statutory objectives by deterring eligible employees from exercising their substantive leave rights.

Wiles v. Medina Auto Parts, (2002) 96 Ohio St. 3d 240, 242-246.

Today, in Leininger, the Court held that an employee does not have a Greeley claim if she was terminated because of her age. Specifically, the Court held that:

A common-law tort claim for wrongful discharge based on Ohio’s public policy against age discrimination does not exist, because the remedies in R.C. Chapter 4112 provide complete relief for a statutory claim for age discrimination.

Does this mean that the Greeley test is now whether the statutory scheme provides "complete" relief?

Apparently not. After discussing Greeley, Wiles and their related decisions the Leininger court stated:

After considering our prior decisions, we conclude that it is unnecessary to recognize a common-law claim when 1) remedy provisions are an essential part of the statutes upon which the plaintiff depends for the public policy claim and 2) when those remedies adequately protect society’s interest by discouraging the wrongful conduct.

(the numbering is mine).

This test raises some questions:

When is a remedy provision an "essential" part of the statute? When is it not?
What is the test if the remedy is not an essential part of the statute?
What is "adequate" protection?
To what degree must the remedy "discourage" the wrongful conduct?

To discern how the Ohio Supreme Court might answer these questions, it is worth comparing this to the standard under Wiles, which was, again:

whether the absence of a cognizable Greeley claim based solely on a violation of the (statute, there the FMLA) would seriously compromise the Act's statutory objectives by deterring eligible employees from exercising their substantive leave rights.

Under Wiles, the focus stayed on the employee, and whether the absence of a Greeley claim would deter the employee from exercising the rights that flowed from the source of the public policy. Now the focus is on the wrongdoer and the question is whether the remedy contained in the source of the public policy will sufficiently "discourage" the wrongful conduct to make a Greeley claim "unnecessary."

My take is that the Leininger standard is a significant retreat even from Wiles. It is difficult to see how Greeley remains viable for anything other than its own wage-garnishment facts.

$16 million age discrimination verdict

nospam@example.com (Neil Klingshirn) — Sun, 08 Oct 2006 11:12:12 -0500

A tip of the hat to my colleague and friend Chris Thorman and his firm for the fine work they did for their client Tommy Morgan. Last week a federal jury returned a $16 million verdict against New York Life Insurance Company for age discrimination. The "Company You Keep" decided to part company with Mr. Morgan, then 52, and replace him with a younger manager.

The Cleveland Plain Dealer reported that Mr. Morgan was a managing partner at New York Life Insurance Co.'s Northern Ohio.

Morgan was a 20-year employee of New York Life, Thorman said. His career there included a promotion, high marks for job performance and a good reputation among colleagues. One witness described Morgan as the best managing partner he had seen in 40 years, Thorman said.

In September of 2005 New York Life announced a "new generation of managers." Three weeks later New York Life fired Mr. Morgan. Bad timing. The jury returned the largest age discrimination verdict in Ohio history.

So why did the jury award such a large verdict? Federal courts in Northern Ohio are notoriously conservative, so a runaway jury is not the reason. The answer is that Mr. Morgan earned about $500,000 a year when New York Life fired him. He will therefore lose about $5.5 million over the rest of his career, which is what the jury awarded. The jury added another $500,000 for emotional pain and suffering, plus $10 million in punitive damages.

While the jury's verdict undoubtably made Mr. Morgan feel better, he should not plan on spending the money anytime soon. New York Life intends to appeal. An appeal to the Sixth Circuit takes 18 months to 2 years and the Court could reduce or overturn the verdict. If I had to bet, however, I would bet that Mr. Morgan and his legal team will protect this verdict on appeal.

My take: corporate America should stop discriminating. It's bad for business.

My Employment Blogger - Age discrimination

Did the Ohio Supreme Court wipe out Greeley Claims in Leininger?

$16 million age discrimination verdict