Noday v. Mahoning Cty. Sheriff

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[Cite as Noday v. Mahoning Cty. Sheriff, 147 Ohio App.3d 38, 2002-Ohio609.] STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT TAMMY S. NODAY, PLAINTIFF-APPELLANT, VS. MAHONING COUNTY SHERIFF, DEFENDANT-APPELLEE. ) ) ) ) ) ) ) ) ) CASE NO. 00 C.A. 226 O P I N I O N CHARACTER OF PROCEEDINGS: Civil Appeal from Pleas Court Case No. 99-CV-2864 Common JUDGMENT: Affirmed in part, reversed in part and remanded APPEARANCES: For Plaintiff-Appellant: Alan Belkin, for appellant. 75 Public Square, Suite 920 Cleveland, Ohio 44113 For Defendant-Appellee: Paul J. Gains, Mahoning County Prosecuting Attorney, and Thomas N. Michaels, Assistant Prosecuting Attorney, for appellee 120 Market Street Youngstown, Ohio 44503 -2- JUDGES: Hon. Gene Donofrio Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: Feb. 11, 2002 [Cite as Noday v. Mahoning Cty. Sheriff, 2002-Ohio-609.] GENE DONOFRIO, Judge. {¶1} Plaintiff-appellant, Tammy S. Noday, appeals from a decision of the Mahoning County Common Pleas Court dismissing her sex discrimination claim against defendant-appellee, Mahoning County. {¶2} Appellant began employment as a deputy sheriff with appellee s sheriff s department on June 2, 1994. Her employment was terminated on August 28, 1998. {¶3} Appellant filed a charge of sex discrimination with the Ohio Civil Rights Commission ( the commission ). On May 20, 1999, the Akron regional office of the commission issued an order concluding that it was not probable that appellee had engaged in unlawful discriminatory practices under R.C. Chapter 4112 and dismissed appellant s claim. The commission stated that the evidence did not substantiate that appellant had been discharged or subjected to differential treatment because of her sex or in retaliation. The commission stated that the order was based upon evidence indicating that appellant had been discharged for refusing a direct order of her superior and violating department policy resulting in a criminal indictment. {¶4} subject The commission order noted that it was a final order to judicial review under R.C. 4112.06. appellant did not pursue judicial review of the order. However, Rather, -2- appellant filed a civil action against appellee in Mahoning County Common Appellant s Pleas complaint Court, set alleging forth two sex discrimination. counts. The first set forth a statutory cause of action pursuant to R.C. 4112.01 et seq. and R.C. 4112.99. The second set forth a cause of action for wrongful termination of employment in violation of public policy. {¶5} Appellee filed a motion to dismiss/motion for summary judgment. In its motion, appellant s complaint appellant s sole commission s order appellee should remedy was pursuant to argued that be dismissed, by judicial R.C. Count arguing review 4112.06, 1 of that of she which the had failed to pursue, and that she could not bring an independent sex discrimination action pursuant to R.C. 4112.99 after her claim had been dismissed by the commission. 2, appellee argued that since appellant was Concerning Count not an at-will employee, she could not pursue a wrongful discharge claim under the public-policy exception. {¶6} On September 22, 2000, the trial court appellee s motion and dismissed appellant s case. followed. sustained This appeal -3- {¶7} Appellant s first assignment of error states: {¶8} The trial court improperly found that an election of remedies requirement attached to the gender discrimination claims brought pursuant to Ohio Revised Code Section 4112.99. Election of remedies attaches only to age discrimination claims brought pursuant to Ohio Revised Code Section 4112.99. {¶9} The question presented by appellant s first assignment of error is whether she was barred from filing her complaint because with she the had trial court previously pursuant filed an to R.C. 4112.99, administrative claim pursuant to R.C. 4112.05. {¶10} R.C. 4112.02(A) makes it an unlawful discriminatory practice [f]or any employer, because of the race, color, religion, sex, national origin, handicap, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment. A person alleging statutory methods for relief. aggrieved person may file a [a]ny person may file discrimination has two Pursuant to R.C. 4112.05, an charge pursue an administrative remedy. that sex a with the commission to R.C. 4112.05(B)(1) provides charge with the commission -4- alleging that another person has engaged or is engaging in an unlawful discriminatory practice. procedure for judicial review R.C. 4112.06 provides the of commission decisions. Alternatively, the person alleging discrimination may file a civil action in the common pleas court. R.C. 4112.99, which provides that This right is found in [w]hoever violates [R.C. Chapter 4112] is subject to a civil action for damages * * *. {¶11} Although there are two methods for pursuing a handicap discrimination claim, appellee argued below that these procedures are exclusive so that the pursuit of one excludes the other. Appellee argued that appellant was precluded from filing a civil action because she opted instead to pursue a charge with the commission, obtained a determination from that agency, and chose not to appeal that decision to the common pleas court. {¶12} In support of its motion to dismiss, appellee relied primarily on this court s decision in Hultberg v. Ohio Edison Co. (1996), 116 Ohio App.3d 130. filed a defendant civil for discrimination. action in wrongful common In that case, the plaintiff pleas discharge court against alleging the handicap Prior to filing the lawsuit, the plaintiff had -5- filed a charge of discrimination with the commission. The commission issued an order concluding that it was not probable that the defendant had engaged in unlawful discriminatory practices under R.C. Chapter 4112 and dismissed her claim. The plaintiff did not pursue a judicial review of the commission s decision. The defendant was granted summary judgment in the civil action after arguing that the plaintiff was barred from pursuing the civil action because she had opted instead to pursue a charge with the commission, obtained a determination from that agency, and chose not to appeal that decision to the common pleas court. {¶13} On appeal, this court affirmed, holding that the abandonment of one process in favor of another is not warranted and that appeal, when she the was appellant forever abandoned barred from her administrative raising discrimination cause in an independent action. a handicap Id. at 134. In reaching that decision, this court relied on a series of cases that claims of applied age an election-of-remedies discrimination. However, requirement since this to court s decision in that case, the Ohio Supreme Court has held that the election-of-remedies requirement applies only to age -6- discrimination claims and not to claims based on the other forms of discrimination. {¶14} In Smith v. Friendship Village of Dublin, Ohio, Inc. (2001), 92 Ohio St.3d 503, the plaintiff, like the one in Hultberg, filed a civil action in common pleas court alleging handicap discrimination. Prior to filing the lawsuit, the plaintiff filed a charge of discrimination with the commission. The commission dismissed her claim, and she did not appeal that determination. The common pleas court granted summary judgment in favor of the defendant, finding that the plaintiff could not pursue an independent civil action because she had already elected an alternate remedy. {¶15} On appeal to the Tenth District Court of Appeals, the court reversed, intend to handicap holding create an discrimination that the General Assembly election-of-remedies claims. Finding did not requirement to that its decision conflicted with Hultberg, the court certified a conflict to the Ohio Supreme Court. {¶16} The Ohio Supreme Court affirmed the Tenth District s decision, unlawful holding specifically discriminatory practice that [t]he charge with filing the Ohio of an Civil -7- Rights Commission under R.C. 4112.05(B)(1) does not preclude a person alleging handicap discrimination from instituting independent civil action under R.C. 4112.99. syllabus. only an Smith at the Although the court s holding specifically addressed handicap reasoning discrimination can just the reasonably as claims, court s be logic applied to and sex discrimination claims. {¶17} In Smith, the court explained, In determining the General Assembly s construction of a intent, the legislative starting enactment is point the in text of the the statute itself. The plain language of neither R.C. 4112.05 nor R.C. requires 4112.99 a plaintiff discrimination to elect between remedies. alleging handicap Nor are there other statutory provisions requiring such an election. In contrast, there are statutory provisions requiring an election for age discrimination claims. {¶18} R.C. individual may 4112.02(N) enforce the provides that individual s [a]n rights aggrieved relative to discrimination on the basis of age * * * by instituting a civil action. charge An individual may also file an age discrimination with the commission pursuant to R.C. 4112.05(B)(1). -8- However, the General Assembly has specifically provided that individuals alleging age discrimination must choose between an administrative or judicial action. R.C. 4112.08 states that any person filing a charge under division (B)(1) of section 4112.05 of the Revised discriminatory Code, practices with respect complained of, to the is unlawful barred from instituting a civil action under section 4112.14 or division (N) of section 4112.02 of the Revised Code. {¶19} These demonstrate provisions that the relating General to age Assembly discrimination was aware that individuals might attempt to commence both administrative and judicial proceedings pursuant to R.C. Chapter 4112. So, in clear language, the General Assembly expressed its intent that an election must be made. However, in regard to handicap discrimination claims, the General Assembly has not manifested a similar intent administrative Assembly requiring or intended judicial that a plaintiff remedy. to Thus, individuals elect had between the alleging an General handicap discrimination be forced to choose between an administrative or civil proceeding, it would have specifically stated so, as it did with respect to age discrimination. In this respect, we -9- are guided by the Latin maxim expressio unius est exclusio alterius, which translated means that the expression of one item of a class implicitly excludes other items of the class that are not specifically mentioned. 83 Ohio St.3d 36, 39, 697 N.E.2d State v. Droste (1998), 620, 622. The General Assembly has specifically limited an individual s ability to bring both an administrative and civil context of age discrimination only. proceeding in the Its exclusion of other forms of discrimination from this limitation makes clear that it intended that both remedies be available for other forms of discrimination. (Emphasis added.) {¶20} As with handicap Id. at 506-507. discrimination claims, there is nothing in the plain language of R.C. 4112.05 or R.C. 4112.99 that requires a plaintiff alleging sex discrimination to elect between remedies, and there are no other statutory provisions requiring such an election. To infer one would run contrary to legislative intent and the Ohio Supreme Court s interpretation of those provisions.1 {¶21} Accordingly, appellant s first assignment of error has merit. 1 As a side note, the Ohio Supreme Court decided Smith on August 15, 2001, during the pendency of - 10 - {¶22} Appellant s second assignment of error states: {¶23} The trial court improperly found that the existence of a collective bargaining agreement bars the assertion of a public-policy tort claim by a terminated employee. {¶24} The origin of the tort of wrongful discharge in violation of public policy is the Ohio Supreme Court s decision in Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228. an exception Greeley provides that public policy warrants to the employment-at-will doctrine when an employee is discharged or disciplined for a reason prohibited by statute. However, a Greeley cause of action is available only to at-will employees and may not be asserted by employees subject to a collective bargaining agreement. Haynes v. Zoological Soc. of Cincinnati (1995), 73 Ohio St.3d 254, 257. Because appellant was subject to a collective bargaining agreement, she cannot assert a cause of action for wrongful discharge in violation of public policy. {¶25} Accordingly, appellant s second assignment is without merit. {¶26} The judgment of the trial court is hereby reversed as to appellant s sex discrimination claim brought under R.C. this appeal and subsequent to the trial court s determination on this matter on September 22, 2000. - 11 - 4112.99, affirmed as to appellant s public-policy tort claim, and remanded for further proceedings according to law and consistent with this opinion. Judgment reversed in part, affirmed in part and cause remanded. VUKOVICH and DEGENARO, JJ., concur.

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