Helmick v. Cincinnati Word Processing, Inc.

543 N.E.2d 1212, 45 Ohio St. 3d 131, 4 I.E.R. Cas. (BNA) 1249, 1989 Ohio LEXIS 205, 51 Empl. Prac. Dec. (CCH) 39,365, 50 Fair Empl. Prac. Cas. (BNA) 1554

Opinions

Wright, J.

This case requires us to resolve two issues. The first involves an issue of law. The second involves a mixture of law and fact. Appellants assert that the General Assembly abolished common-law tort actions premised upon sexual misconduct by way of preemption when it enacted R.C. Chapter 4112. Appellants also argue that the doctrine of employment at will bars Helmick’s breach of contract action, said action being premised upon her discharge without just cause. We reject appellants’ positions as aforesaid and affirm the court of appeals.

I

On the first point there appears to be little question that R.C. Chapter 4112 is comprehensive legislation designed to provide a wide variety of remedies for employment discrimination in its various forms. Appellees agree that claims for employment discrimination must be asserted under the aegis of R.C. Chapter 4112. The issue here is whether appellees’ intentional tort claims have been preempted and abolished by the General Assembly. We hold that they have not been abolished, as there is nothing in the language or legislative history of R.C. Chapter 4112 barring the pursuit of common-law remedies for injuries arising out of sexual misconduct.

Our review of R.C. Chapter 4112 reveals only one limitation and that provision bars any law which would be inconsistent with the remedial purpose of the chapter.¹ Appellants suggest that pursuit of common-law claims would be inconsistent with the various remedies provided by the General Assembly under the statute. However, analysis of the pertinent case law in this area belies such an assertion. Appellees accurately point out that redress under the statute differs significantly from that under the common law. First, the burden of proof for discrimination under the statute is quite different from any existing common-law tort and has its own elements and presumptions. See, generally, Barker v. Scovill, Inc. (1983), 6 Ohio St. 3d 146, 6 OBR 202, 451 N.E. 2d 807.² At the time the instant action was commenced, the relief provided by R.C. Chapter 4112 for sex discrimination in employment was limited to that available in equity, such as injunctive relief, reinstatement, and back pay. R.C. 4112.05(G). No provision was made for the recovery of compensatory and punitive damages available at common law. But, see, R.C. 4112.99, effective September 28, 1987.³ We hold that allowing a plaintiff to pursue common-law remedies in lieu of the relief provided under R.C. Chapter 4112 creates no conflict and serves to supplement the limited protection and coverage of that chapter.

It must be noted that the analogous federal statute, Section 2000e, Title 42, U.S. Code, does not preempt common-law tort claims. In federal discrimination cases, the federal courts have routinely, under the doctrine of pendent jurisdiction, also heard state common-law tort claims. We note also that there is an abundance of case law dealing with facts similar to those alleged here involving an assault, intentional infliction of emotional distress and the like.⁴ Moreover, our holding that R.C. Chapter 4112 does not preempt common-law tort claims keyed to sexual misconduct is supported by other jurisdictions which have dealt with the preemption issue.⁵

Appellants cite Peterson v. Scott Constr. Co. (1982), 5 Ohio App. 3d 203, 5 OBR 466, 451 N.E. 2d 1236, and Howard v. State Farm Ins. Co. (1978), 61 Ohio App. 2d 198, 15 O.O. 3d 317, 401 N.E. 2d 462. Neither of these cases dealt with the assertion of common-law tort claims against an employer. We agree with Peterson that R.C. Chapter 4112 does provide the exclusive remedy for pure employment discrimination claims. Peterson, supra, at 205, 5 OBR at 467, 451 N.E. 2d at 1238. However, in that case the court made no ruling and expressed no opinion concerning the rights of an employee with discrimination claims to also pursue common-law claims. Likewise, the court in Howard did not treat the issue of whether the plaintiff had the right to pursue traditional tort claims existing independently of R.C. Chapter 4112.

R.C. Chapter 4112 was intended to add protections for victims of sexual harassment rather than reduce the protections and remedies for such conduct. While discretionary hiring practices, discriminatory promotions and discriminatory discharges are not actionable at common law absent an express contract, the express purpose of R.C. Chapter 4112 is to deter these practices and provide a remedy where none existed under state law. We agree with appellees that it would defy logic to conclude that the General Assembly intended to make it impossible for victims of sexual harassment to obtain damages when an employer’s conduct constitutes a common-law tort, regardless of the motivation for such conduct.

We would repeat the axiom that an existing common-law remedy may not be extinguished by a statute except by direct enactment or necessary implication.⁶ Accordingly, and for the reasons above, we hold that appellees’ common-law tort actions are not preempted by R.C. Chapter 4112. As to this issue the judgment of the court of appeals is affirmed. Thus, we need not consider appellees’ equal protection and due process claims.

II

The second issue involves the scope and vitality of Mers v. Dispatch Printing Co. (1985), 19 Ohio St. 3d 100, 19 OBR 261, 483 N.E. 2d 150. There is no question that, standing alone, praise with respect to job performance and discussion of future career development will not modify the employment-at-will relationship.⁷ However, we find something more in this particular case. Construing the evidence most favorably to Helmick, we note a facial showing that there were specific promises made to Helmick on which she relied to her detriment.

First, the record reflects interviews of Helmick by defendant Bray prior to her employment at CWP. At the time of these discussions, Helmick was interviewing with several potential employers and Bray allegedly promised Helmick job security and opportunities for advancement in consideration of her discontinuing her other interviews. These inducements allegedly led to Helmick’s decision not to continue job hunting.

More importantly, in the face of Helmick’s dissatisfaction with her employment environment and her renewed search for another position, CWP’s vice president, defendant Theye, allegedly dissuaded Helmick from pursuing these new avenues, tell'ing her that the home office thought she was doing a great job, that a raise had been approved, and that a career with the company was in order as long as her job performance was good. At his deposition, Theye stated: “* * * I reassured her [Helmick] that she would have a job if her performance was satisfactory.” Based on this reassurance, Helmick stopped looking for other jobs and may have, though she could not recall with certainty, rejected another job offer.

A demonstration of detrimental reliance on specific promises of job security can create an exception to the employment-at-will doctrine. Mers, swpra, paragraph three of the syllabus. In light of the foregoing, we hold that summary judgment on Helmick’s breach of contract claim was inappropriate since the trial court had the responsibility to view the evidence in its totality, construe it in favor of the nonmovant, and determine whether or not specific promises were made on which there was detrimental reliance. There is a genuine issue of material fact on this issue.

For the reasons aforesaid, the holding of the court of appeals is affirmed and this matter is remanded to the trial court for further proceedings.

Judgment affirmed.

Moyer, C.J., H. Brown and Resnick, JJ., concur. Sweeney and Douglas, JJ., concur in judgment only. Holmes, J., concurs in part and dissents in part.

Footnotes

1

R.C. 4112.08 provides in pertinent part:

“The provisions of sections 4112.01 to 4112.08 of the Revised Code, shall be construed liberally for the accomplishment of the purposes thereof and any law inconsistent with any provision hereof shall not apply. * * *”

2

In McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, the United States Supreme Court enunciated the evidentiary standards and guidelines to be followed in race discrimination cases. This court, in Plumbers & Steamfitters Commt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St. 2d 192, 20 O.O. 3d 200, 421 N.E. 2d 128, adopted those same standards and then, in Barker, supra, applied them to age discrimination under R.C. 4101.17.

3

R.C. 4112.99 provides:

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

4

See, e.g., Phillips v. Smalley Maintenance Services, Inc. (C.A. 11, 1983), 711 F. 2d 1524; Meyer v. California & Hawaiian Sugar Co. (C.A. 9, 1981), 662 F. 2d 637.

5

See Clay v. Quartet Mfg. Co. (N.D. Ill. 1986), 644 F. Supp. 56, where the court, in applying the Illinois Human Rights Act, ruled that while the Act preempts claims of employment and other kinds of discrimination, common-law tort claims arising in an employment context such as one for an intentional infliction of emotional stress are not preempted. See, also, Newman v. Dist. of Columbia (D.C. App. 1986), 518 A. 2d 698, where the court decided that the District of Columbia Human Rights Act does not preempt the common-law rights of government workers injured by discriminatory practices. Id. at 702, fn. 8. That court also stated:

“* * * [W]e follow the presumption that the legislature does not intend to take away common law rights unless that purpose is clearly expressed in the statute. ‘No statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.’ Shaw v. North Pennsylvania R.R., 101 U.S. (11 Otto) 557, 565, 25 L. Ed. 892 (1879) * * Neuman, supra, at 703.

Finally, see Carsner v. Freightliner Carp. (1984), 69 Ore. App. 666, 688 P. 2d 398, where' the court determined that an employee’s tort claim for his employer’s intentional infliction of emotional distress was not preempted by the state civil rights Act.

6

See 85 Ohio Jurisprudence 3d (1988) 394-395, Statutes, Section 362, which states: “Where a statute prescribes a remedy for a matter that is actionable at common law without excluding the common-law remedy either expressly or by necessary implication, the statutory remedy, in the absence of constitutional provision to the contrary, is regarded as merely cumulative, and either the common-law or statutory remedy may be pursued.

7

Some commentators and courts have criticized this court’s strict adherence to the doctrine of employment at will as harsh. However, we held to this view under the difficult facts presented in Fawcett v. G. C. Murphy & Co. (1976), 46 Ohio St. 2d 245, 75 O.O. 2d 291, 348 N.E. 2d 144, and in Phung v. Waste Management, Inc. (1986), 23 Ohio St. 3d 100, 23 OBR 260, 491 N.E. 2d 1114. It is noteworthy that the General Assembly modified our specific ruling in Fawcett by amending R.C. 4101.17 to create a private cause of action for violations of that section. See 137 Ohio Laws, Part II, 3062. Similarly, the legislature quite properly reviewed the holding inPhung and asserted its power to make public policy by passing R.C. 4113.51 through 4113.53, which have the effect of modifying the common law.

“Ohio’s new statute covers virtually all employers within the state. Under the statute, if an employee becomes aware of a violation of the law by his employer or another employee which is likely to cause a risk of physical harm, is a hazard to public safety, or is a felony, he must orally notify his supervisor and file a written report identifying and detailing the violation. If the employer does not make a good faith effort to correct its violation by the end of the following business day and notify the employee in writing of its efforts in that regard, the employee may file a written report of the violation with the appropriate public agency or official. * * * [I]f the employer violates certain Ohio laws governing air and water pollution control, the employee need not report the violation to his employer before reporting directly to a public agency or official.

“If the provisions of the act have been followed, the employee may not be discharged, suspended, deprived of any salary increases or employment benefits, transferred or reassigned, denied a promotion, or be subject to a reduction of pay or position for reporting the violation.” Cincinnati Bus. Courier, June 5, 1989, at_, col.