[Cite as McMillan v. Global Freight Mgt., Inc., 2013-Ohio-1725.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
WILLIAM E. MCMILLAN C.A. No. 12CA010248
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE GLOBAL FREIGHT MANAGEMENT COURT OF COMMON PLEAS INC. COUNTY OF LORAIN, OHIO CASE No. 11CV173823 Appellee
DECISION AND JOURNAL ENTRY
Dated: April 29, 2013
MOORE, Presiding Judge.
{¶1} Plaintiff-Appellant, William McMillan, appeals from the May 31, 2012 judgment
entry of the Lorain County Court of Common Pleas. We affirm.
I.
{¶2} In 2010, Mr. McMillan suffered an on-the-job injury while working for,
Defendant-Appellee, Global Freight Management, Inc. Mr. McMillan filed a workers’
compensation claim which was allowed for benefits due to his injuries. On May 11, 2011, the
decision allowing benefits was amended to include additional conditions stemming from this
injury.
{¶3} On May 16, 2011, Mr. McMillan was terminated from his employment with
Global Freight Management, Inc.
{¶4} Mr. McMillan filed a complaint in common pleas court for wrongful termination
in violation of R.C. 4123.90. In his complaint, Mr. McMillan alleged that Global Freight 2
terminated him solely based upon the approval of his workers’ compensation claim. Further, Mr.
McMillan alleged that his termination jeopardized and contradicted the policy set forth in R.C.
4123.90, which permitted employees who are injured on the job to file for benefits without fear
of retaliation from their employer. Mr. McMillan also contended that the remedies available in
R.C. 4123.90, reinstatement with back pay, are insufficient to compensate him in this situation.
{¶5} Global Freight filed an answer denying that the trial court had subject matter
jurisdiction to hear the case because Mr. McMillan failed to comply with the notice requirements
set forth in R.C. 4123.90. Additionally, Global Freight filed a motion to dismiss, or in the
alternative, a motion for summary judgment.
{¶6} The trial court granted Global Freight’s motion to dismiss Mr. McMillan’s
statutory claim for retaliatory discharge. It held that the court lacked subject matter jurisdiction
because Mr. McMillan failed to give the requisite ninety day written notice to his employer
pursuant to R.C. 4123.90. Further, the trial court granted Global Freight’s motion for summary
judgment because, as a matter of law, Mr. McMillan was not entitled to a common-law cause of
action for a violation of the public policy underlying R.C. 4123.90. In its decision, the court
rejected Mr. McMillan’s reliance upon Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153,
2011-Ohio-2723, reasoning that it would “not create a new common law claim based upon R.C.
4123.90 * * * ,” because “[h]ad the Ohio Legislature intended there be other claims allowed
under the statute it would have included them.”
{¶7} Mr. McMillan appealed, and raises one assignment of error for our consideration.
We note that Mr. McMillan has not challenged the dismissal of the statutory cause of action for
wrongful discharge due to failing to notify Global Freight of his claimed violation within the
ninety days immediately following his discharge from employment. 3
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING [GLOBAL FREIGHT MANAGEMENT, INC.’S] MOTION FOR SUMMARY [JUDGMENT] AS COURTS HAVE PREVIOUSLY CREATED TORT CLAIMS FOR WRONGFUL TERMINATION WHICH BYPASS THE REQUIREMENTS OF [R.C.] 4123.90.
{¶8} In his sole assignment of error, Mr. McMillan argues that the trial court erred in
granting Global Freight Management, Inc.’s motion for summary judgment because his
termination violated public policy. Specifically, Mr. McMillan argues that the remedies
available pursuant to R.C. 4123.90, reinstatement with back pay, are not adequate to compensate
him, and therefore must be expanded.
{¶9} In response, Global Freight contends that R.C. 4123.90 provides the exclusive
remedy for an employee who is discharged in retaliation for filing a workers’ compensation
claim. It further contends that because the Ohio legislature created a cause of action for
retaliatory discharge based upon the filing of a workers’ compensation claim, an aggrieved
employee may not bring a common-law public policy claim based upon R.C. 4123.90.
{¶10} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), summary judgment is
proper if:
(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The party moving for summary
judgment bears the initial burden of informing the trial court of the basis for the motion and 4
pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher
v. Burt, 75 Ohio St.3d 280, 292 (1996). The moving party must support the motion by pointing
to some evidence in the record of the type listed in Civ.R. 56(C). Id. at 292-293. Once this
burden is satisfied, the non-moving party bears the burden of offering specific facts to show a
genuine issue for trial. Id. at 293. The nonmoving party may not rest upon the mere allegations
and denials in the pleadings but instead must point to, or provide, some evidentiary material that
demonstrates a genuine dispute over a material fact. In re Fike Trust, 9th Dist. No. 06CA0018,
2006-Ohio-6332, ¶ 10.
{¶11} R.C. 4123.90 states, in relevant part, that:
No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course and arising out of his employment with that employer. Any such employee may file an action in the common pleas court of the county of such employment in which the relief which may be granted shall be limited to reinstatement with back pay, if the action is based upon discharge[.] * * * The action shall be forever barred unless filed within one hundred eighty days immediately following the discharge, demotion, reassignment, or punitive action taken, and no action may be instituted or maintained unless the employer has received written notice of a claimed violation of this paragraph within the ninety days immediately following the discharge, demotion, reassignment, or punitive action taken.
(Emphasis added.)
{¶12} In Bickers v. W. & S. Life Ins. Co., 116 Ohio St.3d 351, 2007-Ohio-6751,
syllabus, the Supreme Court of Ohio held that:
An employee who is terminated from employment while receiving workers’ compensation has no common-law cause of action for wrongful discharge in violation of the public policy underlying R.C. 4123.90, which provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers’ Compensation Act. 5
The Court reasoned that “it would be inappropriate for the judiciary to presume the superiority of
its policy preference and supplant the policy choice of the legislature. For it is the legislature,
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[Cite as McMillan v. Global Freight Mgt., Inc., 2013-Ohio-1725.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
WILLIAM E. MCMILLAN C.A. No. 12CA010248
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE GLOBAL FREIGHT MANAGEMENT COURT OF COMMON PLEAS INC. COUNTY OF LORAIN, OHIO CASE No. 11CV173823 Appellee
DECISION AND JOURNAL ENTRY
Dated: April 29, 2013
MOORE, Presiding Judge.
{¶1} Plaintiff-Appellant, William McMillan, appeals from the May 31, 2012 judgment
entry of the Lorain County Court of Common Pleas. We affirm.
I.
{¶2} In 2010, Mr. McMillan suffered an on-the-job injury while working for,
Defendant-Appellee, Global Freight Management, Inc. Mr. McMillan filed a workers’
compensation claim which was allowed for benefits due to his injuries. On May 11, 2011, the
decision allowing benefits was amended to include additional conditions stemming from this
injury.
{¶3} On May 16, 2011, Mr. McMillan was terminated from his employment with
Global Freight Management, Inc.
{¶4} Mr. McMillan filed a complaint in common pleas court for wrongful termination
in violation of R.C. 4123.90. In his complaint, Mr. McMillan alleged that Global Freight 2
terminated him solely based upon the approval of his workers’ compensation claim. Further, Mr.
McMillan alleged that his termination jeopardized and contradicted the policy set forth in R.C.
4123.90, which permitted employees who are injured on the job to file for benefits without fear
of retaliation from their employer. Mr. McMillan also contended that the remedies available in
R.C. 4123.90, reinstatement with back pay, are insufficient to compensate him in this situation.
{¶5} Global Freight filed an answer denying that the trial court had subject matter
jurisdiction to hear the case because Mr. McMillan failed to comply with the notice requirements
set forth in R.C. 4123.90. Additionally, Global Freight filed a motion to dismiss, or in the
alternative, a motion for summary judgment.
{¶6} The trial court granted Global Freight’s motion to dismiss Mr. McMillan’s
statutory claim for retaliatory discharge. It held that the court lacked subject matter jurisdiction
because Mr. McMillan failed to give the requisite ninety day written notice to his employer
pursuant to R.C. 4123.90. Further, the trial court granted Global Freight’s motion for summary
judgment because, as a matter of law, Mr. McMillan was not entitled to a common-law cause of
action for a violation of the public policy underlying R.C. 4123.90. In its decision, the court
rejected Mr. McMillan’s reliance upon Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153,
2011-Ohio-2723, reasoning that it would “not create a new common law claim based upon R.C.
4123.90 * * * ,” because “[h]ad the Ohio Legislature intended there be other claims allowed
under the statute it would have included them.”
{¶7} Mr. McMillan appealed, and raises one assignment of error for our consideration.
We note that Mr. McMillan has not challenged the dismissal of the statutory cause of action for
wrongful discharge due to failing to notify Global Freight of his claimed violation within the
ninety days immediately following his discharge from employment. 3
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING [GLOBAL FREIGHT MANAGEMENT, INC.’S] MOTION FOR SUMMARY [JUDGMENT] AS COURTS HAVE PREVIOUSLY CREATED TORT CLAIMS FOR WRONGFUL TERMINATION WHICH BYPASS THE REQUIREMENTS OF [R.C.] 4123.90.
{¶8} In his sole assignment of error, Mr. McMillan argues that the trial court erred in
granting Global Freight Management, Inc.’s motion for summary judgment because his
termination violated public policy. Specifically, Mr. McMillan argues that the remedies
available pursuant to R.C. 4123.90, reinstatement with back pay, are not adequate to compensate
him, and therefore must be expanded.
{¶9} In response, Global Freight contends that R.C. 4123.90 provides the exclusive
remedy for an employee who is discharged in retaliation for filing a workers’ compensation
claim. It further contends that because the Ohio legislature created a cause of action for
retaliatory discharge based upon the filing of a workers’ compensation claim, an aggrieved
employee may not bring a common-law public policy claim based upon R.C. 4123.90.
{¶10} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), summary judgment is
proper if:
(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The party moving for summary
judgment bears the initial burden of informing the trial court of the basis for the motion and 4
pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher
v. Burt, 75 Ohio St.3d 280, 292 (1996). The moving party must support the motion by pointing
to some evidence in the record of the type listed in Civ.R. 56(C). Id. at 292-293. Once this
burden is satisfied, the non-moving party bears the burden of offering specific facts to show a
genuine issue for trial. Id. at 293. The nonmoving party may not rest upon the mere allegations
and denials in the pleadings but instead must point to, or provide, some evidentiary material that
demonstrates a genuine dispute over a material fact. In re Fike Trust, 9th Dist. No. 06CA0018,
2006-Ohio-6332, ¶ 10.
{¶11} R.C. 4123.90 states, in relevant part, that:
No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course and arising out of his employment with that employer. Any such employee may file an action in the common pleas court of the county of such employment in which the relief which may be granted shall be limited to reinstatement with back pay, if the action is based upon discharge[.] * * * The action shall be forever barred unless filed within one hundred eighty days immediately following the discharge, demotion, reassignment, or punitive action taken, and no action may be instituted or maintained unless the employer has received written notice of a claimed violation of this paragraph within the ninety days immediately following the discharge, demotion, reassignment, or punitive action taken.
(Emphasis added.)
{¶12} In Bickers v. W. & S. Life Ins. Co., 116 Ohio St.3d 351, 2007-Ohio-6751,
syllabus, the Supreme Court of Ohio held that:
An employee who is terminated from employment while receiving workers’ compensation has no common-law cause of action for wrongful discharge in violation of the public policy underlying R.C. 4123.90, which provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers’ Compensation Act. 5
The Court reasoned that “it would be inappropriate for the judiciary to presume the superiority of
its policy preference and supplant the policy choice of the legislature. For it is the legislature,
and not the courts, to which the Ohio Constitution commits the determination of the policy
compromises necessary to balance the obligations and rights of the employer and employee in
the workers’ compensation system.” Id. at ¶ 24.
{¶13} As stated above, Mr. McMillan relies upon the Supreme Court of Ohio’s decision
in Sutton, 2011-Ohio-2723, to support his argument for a common-law cause of action with
regard to the remedies available pursuant to R.C. 4123.90. However, Mr. McMillan’s reliance
upon Sutton is misplaced for two reasons. First, in Sutton at paragraph two of the syllabus, 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 being injured on the job,
but prior to filing, instituting, or pursuing a workers’ compensation claim. Under the plain
language of the statute, Mr. Sutton was not protected and could not bring a claim under the terms
of the statute. Id. at ¶ 14. Thus, the Sutton Court was concerned with filling a “gap” in
protection, and not a “gap” in remedies. Id. at ¶ 22. However, here, Mr. McMillan does not
argue that there is a gap in protection under R.C. 4123.90, or that the circumstances of his
termination placed him outside the protection of the statute. Further, Mr. McMillan has not
identified a different statute or constitutional provision from which he could base a claim for
wrongful discharge in violation of public policy.
{¶14} Second, even assuming that Mr. McMillan could rely upon Sutton as a basis for
bringing a common-law cause of action for wrongful discharge in violation of public policy,
Sutton itself defeats his argument regarding the remedies available for retaliatory discharge.
The Sutton Court clearly stated that “[t]he remedies available for wrongful discharge in violation 6
of the public policy against retaliatory employment actions as expressed in R.C. 4123.90 are
limited to those listed in R.C. 4123.90.” (Emphasis added.) Id. at paragraph four of the syllabus.
As such, although the Court recognized a common-law claim for retaliatory discharge under the
specific facts before it in Sutton, the employee was still limited to the statutory remedy of
reinstatement with back pay because “[t]o hold otherwise and allow pursuit of common-law
remedies for wrongful discharges in violation of this public policy would undermine the entire
workers’ compensation scheme, purpose, and operation.” Id. at ¶ 36. The Sutton Court
concluded that:
It would be nonsensical to acknowledge a tort in violation of public policy but fail to tailor the remedies in conformance with that public policy. We therefore hold that the remedies available for wrongful discharge in violation of the public policy against retaliatory employment actions as expressed in R.C. 4123.90 are limited to those listed in R.C. 4123.90.
Id. Thus, Mr. McMillan’s argument is without merit in light of the fact that the Supreme Court
of Ohio has specifically concluded that no other remedies are available to those who state claims
for wrongful discharge in violation of the public policy embodied in R.C. 4123.90.
{¶15} Based upon the record before us, and viewing the evidence in a light most
favorable to Mr. McMillan, we cannot say that the trial court erred in granting summary
judgment in favor of Global Freight Management, Inc. The precedent set forth in Bickers and
Sutton clearly limits Mr. McMillan to the remedies available for wrongful discharge in R.C.
4123.90, reinstatement with back pay. Therefore, as a matter of law, no common-law cause of
action presently exists outside of the scope of the statute on the issue of remedies.
{¶16} Mr. McMillan’s sole assignment of error is overruled. 7
III.
{¶17} Accordingly, the judgment of the Lorain County Court of Common Pleas is
affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE FOR THE COURT
BELFANCE, J. HENSAL, J. CONCUR.
APPEARANCES:
JUSTIN C. MILLER, Attorney at Law, for Appellant.
SEAN P. ALLEN, Attorney at Law, for Appellee.