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Court Employer Suit not Necessarily Retaliatory

December 14, 2007
Related Topics: Miscellaneous Legal Issues, Harassment, Latest News
An employer that sues an employee who filed but lost a suit alleging sexual discrimination is not necessarily being retaliatory and should be given the chance to prove its suit has merit, the Ohio Supreme Court has ruled in a divided opinion.

“If an employer can demonstrate that a lawsuit against an employer who has engaged in a protected activity is not objectively baseless, the suit shall be allowed to proceed,” the court ruled 4-3 Wednesday, December 12, in Tammy Greer-Burger versus Laszlo Temesi.

According to the decision, Greer-Burger filed a sexual harassment suit in 1998 against Temesi. However, a jury found in favor of Temesi, who reportedly owned a now-closed jewelry store.

Temesi then sued Greer-Burger, charging abuse of process, malicious prosecution and intentional infliction of emotional distress. He also sought compensatory and punitive damages.

An administrative judge for the Ohio Civil Rights Commission concluded Temesi’s suit was retaliatory. The commission then ordered Temesi to drop the suit and pay Greer-Burger the $16,000 she had incurred in attorney’s fees defending the suit. A state court and an appellate court affirmed the commission’s decision.

However, the Ohio Supreme Court overturned the rulings.

“The right to petition one’s government for the redress of grievances is enshrined within the First Amendment to the United States Constitution,” the opinion said. “In applying the law to the facts of the case, we cannot countenance the (commission’s) conclusion that Temesi’s act of filing suit is per se retaliatory.”

Even assuming Greer-Burger has established a prima facie case of retaliation, “Temesi must be afforded an opportunity to show that there is an objective basis for his lawsuit,” the court ruled.

The commission’s position “has the potential to give employees a carte blanche right to file malicious, defamatory and otherwise false claims,” said the court.

It remanded the case to the commission “to determine whether Temesi can establish that his claims are not objectively baseless.”

Frederick M. Gittes, an attorney with Gittes & Schulte in Columbus, filed a brief in the case in support of Greer-Burger on behalf of the Ohio Employment Lawyers Assn. and the Committee Against Sexual Harassment, both of which are based in Columbus.

“Our biggest concern is that (the decision) will permit employers to file retaliatory lawsuits, which will force employees to have to defend themselves for simply exercising their right to file a complaint,” Gittes said.

However, William Marshall, solicitor general for the state of Ohio, which represented the commission in the case, said, “The decision still allows the Ohio Civil Rights Commission to be able to enjoin baseless claims that are brought in retaliation for legitimate discrimination claims.”

It leaves intact the basic principle “that employers can’t attempt to intimidate their employees by using lawsuits to retaliate against legitimate employment discrimination claims,” Marshall said.

Jonathan T. Hyman, an employer attorney with Kohrman Jackson & Krantz P.L.L. in Cleveland, said the decision was correct.

The court “was basically balancing employees’ right against retaliation against anybody’s right under the First Amendment of the Constitution to petition the court and file a lawsuit,” said Hyman, who was not involved the case. “When you’re balancing degrees of importance, the Constitution is going to, and should, trump” the employee’s right against retaliation.

He added, though, that employers should “think long and hard” before filing such suits against employees. The employee’s attorney would likely allege that such a suit is retaliatory, he said.

Employers “face an uphill battle in the courtroom anyway” because those who serve on juries are more likely to be employees than employers, Hyman said.

Filed by Judy Greenwald of Business Insurance, a sister publication of Workforce Management. To comment, please e-mail

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