Cosgrove v. Williamsburg of Cincinnati Management Co.

638 N.E.2d 991, 70 Ohio St. 3d 281

• Court: Ohio Supreme Court
• Decided: September 21, 1994
• Docket: No. 92-2549
• Status: Published

Opinions

Pfeifer, J.

We hold that R.C. 4112.99 is a remedial statute, and is thus subject to R.C. 2305.07’s six-year statute of limitations.

R.C. 4112.99 does not contain an explicit statute of limitations. It reads in full:

“Whoever violates this chapter is subject to a civil action for damages, injunctive relief, or any other appropriate relief.”

Since R.C. 4112.99 does not contain its own statute of limitations, we must look to other sections of the Revised Code for the appropriate limitations period. R.C. 2305.07 states, in relevant part, that “an action upon * * * a liability created by statute other than a forfeiture or penalty * * * shall be brought within six years after the cause thereof accrued.”

R.C. 2305.11(A) sets a statute of limitations of one year for “an action upon a statute for a penalty or forfeiture.”

The core question becomes, then, whether R.C. 4112.99 creates a statutory liability or whether it is a “statute for a penalty,” i.e., whether it is a remedial or a penalty statute.

In Morris v. Kaiser Engineers, Inc. (1984), 14 Ohio St.3d 45, 14 OBR 440, 471 N.E.2d 471, this court was faced with a similar question regarding former R.C. 4101.17, which also did not contain its own statute of limitations. That statute provided a civil cause of action for persons denied employment or discharged because of their age. It provided in pertinent part:

“(B) Any person between the ages of forty and seventy discriminated against in any job opening or discharged without just cause by an employer in violation of division (A) of this section may institute a civil action against the employer in a court of competent jurisdiction.” (138 Ohio Laws, Part I, 2268.)

This court found that R.C. 4101.17 created a statutory liability, and thus fell under the six-year statute of limitations contained in R.C. 2305.07. Interestingly, the defendant-appellant in Morris did not argue that R.C. 4101.17 was a penalty statute, but instead argued that R.C. 4101.17 should be read in pari materia with former R.C. 4112.02(N) and 4112.05(B), Ohio’s other age discrimination statutes, which had one-hundred-eighty-day and six-month statutes of limitations, respectively. This court concluded that because R.C. 4101.17 was not ambiguous, the in pari materia rule did not apply, and that R.C. 2305.07 provided the appropriate limitations period.

With respect to the issue in question, R.C. 4101.17 and 4112.99 are directly analogous. Both create civil recourse for employees injured by illegal discriminatory acts. The language of former R.C. 4101.17(B) directly empowered employees — “[a]ny person between the ages of forty and seventy discriminated against * * * may institute a civil action” — while R.C. 4112.99’s language is more passive — “Whoever violates this chapter is subject to a civil action for damages * * Although the violator is the nominal subject in R.C. 4112.99, it is the wronged party who is given the power to initiate the civil proceeding. R.C. 4112.99 creates civil liability for persons committing discriminatory acts in the workplace. No such liability exists in the common law.

Although R.C. 4112.99 achieves similar ends as did R.C. 4101.17, Williamsburg argues that the statutes should not share the same statute of limitations partly because of certain dicta from this court’s decision in Elek v. Huntington Natl. Bank (1991), 60 Ohio St.3d 135, 573 N.E.2d 1056. Williamsburg and amici point to the following language from Elek to support their assertion that R.C. 4112.99 is a penalty section:

“If [the General Assembly’s] intent were not clear enough from the language employed in R.C. 4112.99, resort to R.C. 1.23(A) removes all doubt. This latter section provides:

“ ‘Wherever in a penalty section reference is made to a violation of a series of sections, or of divisions or subdivisions of a section, such reference shall be construed to mean a violation of any section, division, or subdivision included in such reference.’ ” (Emphasis added.) Id. at 137, 573 N.E.2d at 1058.

None of the parties or amici dispute that the above statement in Elek is dicta. As such, it has no binding effect on this court’s decision in this case. It was offered as non-essential illustration in a case where statutes of limitations were not at issue. Interestingly, Elek also contains dicta which supports the argument that R.C. 4112.99 is a remedial statute:

“Moreover, were R.C. 4112.99 ambiguous (which it is not), it is beyond question that R.C. Chapter 4112 is remedial. * * * Accordingly, R.C. 4112.99 is to be liberally construed to promote its object (elimination of discrimination) and protect those to whom it is addressed (victims of discrimination).” Id.

More persuasive than any of the dicta in Elek is the General Assembly’s 1992 amendment to R.C. 4112.08. The amended provision provides in relevant part:

“This chapter shall be construed liberally for the accomplishment of its purposes * * *.” (Am.Sub. H.B. No. 321.)

The previous version of R.C. 4112.08 stated:

“The provisions of sections 4112.01 to 4112.08 of the Revised Code, shall be construed liberally for the accomplishment of the purposes thereof * * (138 Ohio Laws, Part I, 2282.)

Thus, the 1992 amendment effectively includes R.C. 4112.99 among those sections to be liberally construed. Statutes which impose penalties, on the other hand, must be strictly construed. State ex rel. Lukens v. Indus. Comm. (1944), 143 Ohio St. 609, 28 O.O. 506, 56 N.E.2d 216. Therefore, the General Assembly demonstrates by its amendment to R.C. 4112.08 that R.C. 4112.99 is not to be strictly construed, and thus cannot be considered a penalty statute.

R.C. 4112.99 is not a penalty statute regardless of how it is labelled and numbered in the Revised Code. Williamsburg points out that the statute is labelled “Penalty,” and that it contains a “.99” designation, which ordinarily applies to penalties — “[a]ll penalty clauses are uniformly numbered as ‘.99’ except where they are indicated as a part of the section itself.” Preface to Page’s Ohio Revised Code, Annotated, at v.

However, headings and numerical designations are irrelevant to the substance of a code provision. “Title, Chapter, and section headings * * * do not constitute any part of the law as contained in the ‘Revised Code.’ ” R.C. 1.01. Also, merely because most penalty provisions are numbered “.99” does not mean that everything numbered “.99” is a penalty provision. A look at the other “.99” provisions in the Revised Code shows that R.C. 4112.99 is different in substance from any other. No other “.99” provision creates a civil cause of action for damages. A comparison with former R.C. 4112.99 best demonstrates the present statute’s unique status. The former statute read: “Whoever violates divisions (A) to (H) of section 4112.02, or sections 4112.07 or 4112.11 of the Revised Code is guilty of a misdemeanor of the third degree.” (136 Ohio Laws, Part I, 444.) The focus of the statute has changed from punishing the wrongdoer criminally to providing a remedy to the wronged employee.

The arguments of Williamsburg and amici in support exalt form over substance. The simple substance of R.C. 4112.99 is that the General Assembly has statutorily created for those discriminated against the right to seek their own redress in a court of law for discriminatory wrongs done. R.C. 4112.99 provides a remedy rather than instituting a penalty, and its limitations period is thus controlled by R.C. 2305.07.

The judgment of the court of appeals is reversed.

Judgment reversed.

A.W. Sweeney and Douglas, JJ., concur. Moyer, C.J., concurs in the syllabus and judgment. Moyer, C.J., A.W. Sweeney, Douglas, Wright and Resnick, JJ., concur separately. F.E. Sweeney, J., dissents.