Gessner v. City of Union

Grady, J.,

concurring in part.

{¶ 51} R.C. 2744.09(B) creates an exception to the immunities conferred on political subdivisions by R.C. 2744.03 for “[c]ivil actions by an employee * * *

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against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision.”

{¶ 52} R.C. 4112.14(A) provides:

{¶ 53} “No employer shall discriminate in any job opening against any applicant or discharge without just cause any employee aged forty or older who is physically able to perform the duties and otherwise meets the established requirements of the job and laws pertaining to the relationship between employer and employee.”

{¶ 54} R.C. 4112.14(B) authorizes a civil action brought by “[a]ny person aged forty and over who is * * * discharged without just cause by an employer in violation of division (A) of this section.” Daniel Gessner’s action against the city of Union alleging constructive discharge is such an action.

{¶ 55} The city of Union argues that it is immune per R.C. 2744.03 from Gessner’s claim for relief, the R.C. 2744.09(B) exception notwithstanding, because Gessner’s constructive-discharge claim is one for an intentional tort, which the Supreme Court has held cannot arise within the employment relationship, and necessarily exists outside it.

Blankenship v. Cincinnati Milacron Chemicals, Inc.

(1982), 69 Ohio St.2d 608 , 23 O.O.3d 504 , 433 N.E.2d 572 . Therefore, the argument goes, Gessner’s claim cannot be on a claim that concerns a “matter that arises out of the employment relationship,” to which the R.C. 2744.09(B) exception to immunity expressly applies.

{¶ 56}

Blankenship

involved a question arising under the Workers’ Compensation laws of Ohio promulgated in R.C. Chapter 4123. The General Assembly is authorized by Article II, Section 35, of the Ohio Constitution to enact legislation compensating “workmen and their dependents for death, injury, and occupational disease.” The same section further provides that the compensation scheme enacted “shall be in lieu of all other rights to compensation, or damages” for such losses, and that employers who participate in it “shall not be liable to respond in damages at common law for such death, injuries, or occupational disease.” That immunity is likewise provided by statute, R.C. 4123.35, which was at issue in

Blankenship .

(¶ 57} A claim for age discrimination brought pursuant to R.C 4112.14(B) is plainly not an action for death, injury, or occupational disease. Therefore, the constitutional and statutory immunity from liability relative to claims that are covered by workers’ compensation is distinct from an R.C. 4112.14(A) age-discrimination claim.

{¶ 58} More to the point, the particular distinction that

Blankenship

made with respect to intentional torts applied not to statutory claims for relief, such as R.C. 4112.14 claims, but to claims for which an employer could otherwise be held liable

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at common law. See 94 Ohio Jurisprudence 3d, Workers’ Compensation (1999), Section 2. The distinction made between intentional torts and negligent acts or omissions is therefore limited to common-law tort claims, and has no application to statutory claims for relief.

{¶ 59} The city of Union argues that the intentional-tort distinction extends to an R.C. 4112.14(B) action on an age-discrimination claim, nevertheless, because the Supreme Court has said that in order to maintain the claim the employee must present evidence showing that the employer was motivated by a “discriminatory intent.”

Mauzy v. Kelly Services, Inc.

(1996), 75 Ohio St.3d 578 , 664 N.E.2d 1272 . That point relates to the probative quality of the evidence the employee must offer when he relies on direct evidence.

Byrnes v. LCI Communication Holdings Co.

(1996), 77 Ohio St.3d 125 , 672 N.E.2d 145 . It has no bearing on the sufficiency of the evidence necessary to establish a prima facie case of age discrimination under the tripartite test of

McDonnell Douglas Corp. v. Green

(1973), 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 . And, in either alternative, the requirement imposed does not convert an R.C. 4112.14 age-discrimination claim into a common-law intentional-tort claim.

{¶ 60} R.C. 2744.09(B) can apply only to claims for relief in actions brought by their employees against political subdivisions. To hold that the General Assembly, having enacted R.C. Chapter 4123, is therefore barred by the immunity provisions of Article II, Section 35, from enacting the R.C. 2744.09(B) exception with respect to a wholly different kind of claim confuses apples with oranges and wholly misapprehends the separate authority on which the General Assembly relied in each instance to enact the laws concerned. I would reject the immunity claim for those reasons.