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Fired for Suing an Ex-Employer? Court Rejects Public Policy Claim

Employers should treat all employees complaining about anything in the workplace as ticking time bombs, as if their complaints are protected by some law or another. If a court later rejects a public policy claim, all the better.

May 20, 2013

Carcorp hired Barry Elam to work in its finance department. A few months into his employment with Carcorp, Elam sued his prior employer, Bob McDorman Chevrolet, claiming that it had wrongfully fired him in retaliation for his cooperating with an investigation by the Ohio Attorney General into fraudulent credit applications. A year later, Carcorp fired Elam.

Elam then sued Carcorp, claiming that it wrongfully fired him in retaliation for his lawsuit against his prior employer, in violation of Ohio's public policy.

In Elam v. Carcorp, Inc. (4/23/13), the appellate court affirmed the trial court's dismissal of Elam's wrongful discharge claim.

For the uninitiated, some background on wrongful discharge in violation of public policy claims under Ohio law. These claims act as an exception to the presumption of at-will employment permitting a claim when an employee is discharged or disciplined for reasons that contravene a clear public policy. To establish a claim that an employer wrongfully discharged an employee in violation of public policy, the employee must demonstrate all of the following:

  1. A clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law.
  2. Dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy.
  3. Conduct related to the public policy motivated the plaintiff's dismissal.
  4. The employer lacked overriding legitimate business justification for the dismissal.

After an extensive analysis of Elam's claimed public policy—the Open Courts provision in the Ohio Constitution—the appellate court rejected Elam's public policy claim, on the basis that "Elam did not articulate any clear public policy that his termination from employment violated."

In the final analysis, Elam did not demonstrate the Open Courts provision represents a clear expression of legislative policy barring an employer from discharging an employee as a result of the employee's lawsuit against a third party. To hold otherwise would expand the public policy inherent in the Open Courts provision beyond the provision's clear meaning and infringe upon the legislature's duty to make and articulate public policy determinations.

While academically interesting, this case raises a more interesting practical consideration. These "public policy" retaliation cases often hinge on the creativity of plaintiff's counsel to find a legislative or constitutional hook on which to hang the alleged public policy, and the court's willingness to approve of the creativity. Indeed, the more creative the public policy, the more unpredictable the outcome of potential litigation. For this reason, employers should treat all employees complaining about anything in the workplace as ticking time bombs, as if their complaints are protected by some law or another. If a court later rejects a public policy claim, all the better.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.