Ohio Court Clarifies Elements of Retaliatory Discharge Action Against Former Employer

In Onderko v. Sierra Lobo, Inc., 2014 Ohio App. LEXIS 4015 (Sept. 19, 2014), an Ohio appellate court recently held that in order to state a claim for retaliatory discharge, the former employee need not prove, as the first of three necessary elements, that he or she actually suffered a workplace injury; it is sufficient, as to that first element, that the former employee shows that he or she filed a workers’ compensation claim or otherwise initiated a proceeding (as the second and third necessary elements, the employee must show that (b) he or she was the subject of an adverse employment action and (c) that a causal link existed between the protected activity and the adverse action).

Background

The employee felt some pain in his right knee while moving a table and some cabinets in the course of his employment with the employer. He later indicated that because of the pain, he left work early to go home. On his way home, he stopped by a gas station. While stepping off the curb, his right knee “gave out.” He went to the hospital, where the ER records indicate the employee had experienced pain for several weeks prior to the incident. Those notes reflected that the employee was injured stepping off the curb and made no mention of any workplace incident.

The employee saw a physician the following day. Like the ER notes, the notes from that visit made no mention of a workplace injury. Subsequently, the employee contacted the employer’s HR department. There is a difference of opinion as to what happened next. The employee contended he was told that he needed to file a workers’ compensation claim. The employer’s representatives indicated to the contrary. The Bureau of Workers’ Compensation allowed the claim but on appeal, the Industrial Commission reversed. The hearing officer found that the employee had not sustained an injury in the course of his employment. The employee did not appeal.

One month later, the employer terminated the employee’s employment. Prior to his termination, the employee had received three performance bonuses, had no discipline write-ups, and had no unexcused absences. The employer’s HR representative indicated by affidavit that the employee was terminated “for his deceptive attempt to obtain Workers’ Compensation benefits for a non-work related injury.”

The former employee filed a civil action alleging retaliatory discharge. The employer moved for summary judgment, contending in relevant part that under the rule established by the Supreme Court of Ohio in Wilson v. Riverside Hosp., 18 Ohio St.3d 8, 479 N.E.2d 275 (1985), the former employee could not satisfy the required element of having suffered a workplace injury. It argued that the Industrial Commission had determined that the injury did not occur in the workplace and that such decision was binding on the former employee through the doctrines of res judicata and collateral estoppel. The former employee countered that he need not show that he had a compensable claim, only that that such a claim had been filed and that he had been fired because of its filing.

The trial court granted summary judgment to the employer, agreeing that res judicata and collateral estoppel precluded the former employee from re-litigating whether he suffered a workplace injury. Further, the trial court determined that the employer did not terminate the former employee for merely filing a workers’ compensation claim and subsequently being denied benefits. Instead, it terminated him for engaging in deceptive practices.

Appellate Decision

The former employee appealed. Initially, the Sixth District Court of Appeals acknowledged that the Wilson court, in construing R.C. 4123.90, held the retaliatory discharge statute required proof of three elements: (1) the employee was injured on the job, (2) the employee filed a claim for workers’ compensation, and (3) the employee was discharged by the employer in contravention of R.C. 4123.90. The Sixth District even acknowledged that in earlier decisions, it had laid down the same rule. But the court also observed that in Wilson, the parties did not dispute that the plaintiff was injured in a fall at her place of employment. In fact, the court observed that a close examination of Wilson revealed that the element of “injury on the job” was not the focal point of the decision.

Noting that no Ohio retaliatory discharge case had been decided solely on the issue of “injury on the job,” the court said that under the employer’s argument, the purpose of the retaliatory discharge statute would be frustrated in situations such as that present here: where the precise cause of the injury was unknown at the time, and multiple incidents may have substantially aggravated a condition resulting in an injury. Requiring an employee to successfully prove that the injury occurred at work for purposes of a retaliatory discharge claim would have a chilling effect on the exercise of his or her rights because the employee would be forced to choose between a continuation of employment and the submission of a workers’ compensation claim. This choice would have to be made by the employee knowing that if he or she failed to prove that the cause of the injury was work related, not only would his or her claim be denied, but the employer would then be free to terminate the employment simply because the claim was filed.

In light of that, the court held that an employee must prove only that he or she “filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act.” The employee is not required to prove definitively that the injury occurred and arose out of the course of employment. Adopting the holding of the Tenth District in Sidenstricker v. Miller Pavement Maintenance, Inc., 2009-Ohio-6574; 2009 Ohio App. LEXIS 5526, the Tenth District held that to prove a prima facie case of retaliatory discharge, the employee must show:

1. the employee filed a workers’ compensation claim or instituted, pursued or testified in a workers’ compensation proceeding regarding a workers’ compensation claim (the “protected activity”),
2. the employer discharged, demoted, reassigned or took punitive action against the employee (an “adverse employment action”), and
3. a causal link existed between the employee’s filing or pursuit of a workers’ compensation claim and the adverse em-ployment action by the employer (“retaliatory motive”).

Summary Judgment Was Improper

The court added that here the employer made no argument that it provided a legitimate, non-retaliatory reason for the discharge or that appellant failed to provide evidence demonstrating that the reason was merely pretext. Instead, it argued solely that by failing to appeal the Industrial Commission’s decision disallowing benefits, the former employee was collaterally estopped or barred by res judicata from establishing the workplace injury element of his claim. Because the court determined that a workplace injury was not a required element of a retaliatory discharge claim under R.C. 4123.90, and because no other grounds were offered, the court concluded that summary judgment for the employer on the retaliatory discharge claim was inappropriate.