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Sutton sent a letter to Tomco that informed it of his intention to file a claim under Ohio's workers' compensation retaliation statute, O.R.C. §4123.90 and filed suit within the statutory time periods for doing so. Sutton's complaint also included a tort claim for wrongful discharge in violation of public policy.

As noted in the Supreme Court's decision:

R.C. 4123.90 does not expressly prohibit retaliation against injured employees who have not yet filed, instituted, or pursued a workers’ compensation claim. But it does expressly prohibit retaliation against injured workers who have filed, instituted, or pursued a workers’ compensation claim. Essentially, a gap exists in the language of the statute for conduct that occurs between the time immediately following injury and the time in which a claim is filed, instituted, or pursued. Sutton’s firing occurred in that gap. The parties disagree as to whether the public policy underlying R.C. 4123.90 justifies the creation of an exception to the employment-at-will doctrine to protect such employees.

In concluding that R.C. 4123.90 does express a clear public policy prohibiting retaliatory employment action against injured employees before they file a workers’ compensation claim or institute or pursue a workers’ compensation proceeding, the Court found that "the General Assembly did not intend to leave a gap in protection during which time employers are permitted to retaliate against employees who might pursue workers’ compensation benefits. The alternative
interpretation—that the legislature intentionally left the gap—is at odds with the basic purpose of the anti-retaliation provision, which is “to enable employees to freely exercise their rights without fear of retribution from their employers.”

Furthermore, the Court noted its belief that the General Assembly did not intend to create “a footrace, the winner being determined by what event occurs first—the firing of the employee or the filing of the claim with the bureau.” Therefore, the Court recognized a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers retaliatory employment action after injury on the job but before the employee files a workers’ compensation claim or institutes or pursues a workers’ compensation proceeding.

The Court rejected Tomco's assertion that its 2007 decision in Bickers v. W. & S. Life Ins. Co., required rejection of Sutton's claim. The Court's syllabus in Bickers expressly stated that R.C. 4123.90 … provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers’ Compensation Act." Instead of embracing its syllabus in Bickers, the Court limited Bickers to its factual context, which involved an employee who was terminated pursuant to an evenhanded no-fault attendance policy.

Because the Sutton case reached the Ohio Supreme Court based on the granting of a motion for judgment on the pleadings, the factual record has not yet been developed. Therefore, the Court cautioned that in order to prevail, Sutton would need to establish on remand that his discharge was retaliatory. As the Court noted:

Because a discharge could be for reasons other than those related to workers compensation, such as a reasonable suspicion that the injury was not job related, or a disregard by the employee for the employer’s safety rules, or an immediate need for a replacement employee, no presumption of retaliation arises from the fact that an employee is discharged soon after an injury. Rather, the retaliatory nature of the discharge and its nexus with workers compensation must be established by a preponderance of the evidence. To establish the overriding justification element, Sutton must prove that Tomco lacked an overriding business justification for firing him.

This language in the Court's opinion is interesting because it suggests, contrary to what we often see in retaliation cases, that the timing of a termination in proximity to the protected activity – in this case, the industrial injury – does not create any presumption of retaliation.

The Sutton decision does contain one favorable aspect for employers. Plaintiffs' lawyers historically have used the public policy wrongful discharge tort cause of action endorsed by Sutton to seek compensatory and punitive damages to piggy back on causes of action that ordinarily would not provide such damages. The remedies available under §4123.90 are limited to the traditional equitable remedies of reinstatement and backpay. The Sutton Court held that any action alleging a public policy wrongful discharge based on the workers' compensation statute would be limited to those remedies. Therefore, the limited remedies takes some of the sting out of this decision for employers.

Facts in Bickers

In 1994, Shelley Bickers was injured in the course of her employment with Western & Southern Life Insurance Company. Bickers filed a workers’ compensation claim that allowed for multiple medical conditions. As a result of her injuries, she was unable to work for several periods of time. During these periods, Western & Southern did not provide her with a position within her medical restrictions. The company then terminated Bickers in 2002 while she was still receiving temporary total disability benefits.

Relying on the Supreme Court’s 2003 Coolidge decision, Bickers filed a lawsuit against Western & Southern alleging that she was wrongfully discharged in violation of public policy. Western & Southern’s motion to dismiss was granted by the trial court, but the court of appeals reversed the dismissal, finding that the case was governed by the principles decided in Coolidge. The company appealed this decision to the Supreme Court, which took the opportunity to limit Coolidge’s reach.

The Supreme Court Limits the Holding of Coolidge

In Coolidge, a public school teacher was discharged while away from work due to a work-related injury and while receiving temporary total disability benefits. The teacher in Coolidge was not an at-will employee but was employed under a contract governed by R.C. 3319.16, which protected her from termination without “good and just cause.”

The Coolidge Court agreed with the teacher’s argument that the “good and just cause” provision protected her from being discharged solely as a result of her absence due to her work-related injury. After that case was decided, many lower courts in Ohio, relying on very general language in the Coolidge decision, interpreted Coolidge as an expansion of the public policy exception to the employment-at-will doctrine. The Bickers decision, citing Porter Wright’s Ohio Employment Practices Law treatise, acknowledged that many commentators expressed concerns about the broad interpretations of Coolidge. 

The Supreme Court of Ohio found in Bickers that, unlike the teacher in Coolidge, Bickers was an at-will employee and was not protected by the “good and just cause” provision of R.C. 3319.16. The Court therefore limited 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 ‘just cause’ under R.C. 3319.16.” The Court then found that, “[b]ecause Bickers is not a teacher protected by a contract covered by R.C. 3319.16, she is not entitled to the benefit of the holding in Coolidge and may not assert a wrongful-discharge claim in reliance on Coolidge.” The Court reversed the court of appeals’ decision and held that Coolidge did not create a cause of action for an at-will employee who is terminated for non-retaliatory reasons while receiving workers’ compensation benefits.

In reaching this conclusion, the Court noted that the legislature had concluded that it should only prohibit terminations made in retaliation for pursuing workers’ compensation claims. Therefore, the Court, in essence, refused to create common law that would expand those prohibitions to include terminations based solely on the employee’s attendance.

Importance of the Bickers Holding

The Supreme Court’s decision in Bickers represents a key victory for Ohio employers because it reduces the uncertainty that Coolidge created. As a result of this decision, at-will employees who are terminated while receiving temporary total disability benefits may not succeed on claims of wrongful termination in violation of public policy so long as the termination is not in retaliation for pursuing a workers’ compensation claim. Subject to reasonable accommodation obligations under the Americans With Disabilities Act, Ohio employers again are free to enforce neutral maximum medical-leave policies with respect to all employees. Just as importantly, the remedies available under Ohio’s workers’ compensation retaliation statute are once again limited to equitable relief such as reinstatement and back pay rather than compensatory and punitive damages.