Collins v. Rizkana

• Decision Date: 16 August 1995
• Docket Number: No. 94-136,94-136
• Citation: 73 Ohio St.3d 65,652 N.E.2d 653
• Parties: , 68 Fair Empl.Prac.Cas. (BNA) 1043, 66 Empl. Prac. Dec. P 43,663, 64 USLW 2138, 10 IER Cases 1835 COLLINS, Appellant, v. RIZKANA, Appellee.
• Court: Ohio Supreme Court

Page 65

73 Ohio St.3d 65

652 N.E.2d 653, 68 Fair Empl.Prac.Cas. (BNA) 1043,

66 Empl. Prac. Dec. P 43,663, 64 USLW 2138,

10 IER Cases 1835

COLLINS, Appellant, v. RIZKANA, Appellee.

No. 94-136.

Supreme Court of Ohio.

Submitted April 26, 1995.

Decided Aug. 16, 1995.

SYLLABUS BY THE COURT

In Ohio, a cause of action may be brought for wrongful discharge in violation of public policy based on sexual harassment/discrimination.

On May 8, 1992, appellant, Rebecca Collins, filed a complaint against appellee, Dr. Mahfouz Ali Rizkana, D.V.A., in the Stark County Court of Common Pleas, alleging wrongful discharge and intentional infliction of emotional distress. Dr. Rizkana filed an answer denying the allegations of the complaint.

During pretrial discovery, each side took the deposition of the other. In appellant's deposition, Collins testified that she first worked for Dr. Rizkana at the Acme Animal Hospital in Canton, Ohio, between 1982 and 1986. She left the doctor's employ in 1986 because of "the groping and grabbing and touching." At that time, she took no remedial action because "sexual harassment was not thought of. * * * I didn't know of the Ohio Civil Rights Commission or anything of that nature. I went directly to an unemployment bureau."

However, in 1987, Collins returned to work for Dr. Rizkana after being assured that he would not touch her again. Shortly thereafter, she was given the position of manager at a salary of $300 per week. Beginning in 1988, Collins testified, Dr. Rizkana "would start the same thing. He'd get you in a corner, try to feel you up, he'd grab your hand, try to put it in his pants. If he had a chance as you were walking by, he'd pinch your boob. He'd grab your butt when you were in the med room." She also testified that the doctor was "constantly talking of sexual stuff, wanting to know how my husband and my sex life was, that you never lived until you had a foreign experience. He told me about prostitutes that he had in I do believe it was Paris." At times, she would tell him "don't touch me, leave me alone. I would start getting loud. There have been times when he's put his hand across my mouth to shut me up or he would tell me, 'Shh, there's customers.' I didn't want him to touch me so I was getting loud." Also, "[t]here were times he tried to kiss [her]."

In November 1991, a coworker had asked Dr. Rizkana if he had ever touched Collins. The doctor replied that she (the coworker) should ask Collins, to which Collins replied in the affirmative. Dr. Rizkana then became "very upset" and "that's when things started definitely going down on my job. * * * [H]is attitude had changed towards me." On December 11, 1991, Dr. Rizkana handed Collins a "blank sheet of paper. * * * He specifically told [her], 'I want you to write out a statement stating there's never been any sexual harassment in this office, that I have never touched you.' " Instead, Collins replied, " 'My lawyer told me to never write my name on anything.' "

Collins then testified that "as the day progressed, he was very quiet that day. And as I was getting ready to leave he told me, 'Oh, yeah, by the way,' he said, 'I'm dropping your pay by a hundred dollars a week,' " and appointed Collins's coworker to the position of office manager. The next day, Collins attempted to discuss the matter with Dr. Rizkana but he would only reply, " 'Well, you're going to quit anyway so you might as well go,' " to which Collins said, "fine, you know, you have made me leave my job. You are the one that has actually made me leave. Here are your keys back."

Collins then "drove directly to the Ohio Civil Rights Commission." She was precluded, however, from filing a complaint because Dr. Rizkana at no time employed four or more persons and, therefore, did not fall within the definition of "employer" set forth in R.C. 4112.01(A)(2).

Dr. Rizkana denied any form of sexual harassment or sexual discrimination. He testified that "[t]he only time she [Collins] mention[ed] sexual harassment is when she start[ed] asking for [a] raise and she saw [the] Anita Hill-Clarence Thomas case. 'You give me $50 or I will sue you for sexual harassment.' " Instead, Dr. Rizkana stated that although he never reduced Collins's pay, he did tell her that her excessive absenteeism was becoming a problem and that if she didn't work consistently, he would "cut every hour [she] call[ed] off." Thereafter, Collins quit, threatening a lawsuit for sexual harassment.

The trial court entered summary judgment in favor of Dr. Rizkana on Collins's wrongful discharge claim. The court found that "the Greeley [v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981] case clearly allows an exception to the employment-at-will doctrine only when an employee is discharged in violation of a statute. Plaintiff was not discharged in violation of R.C. 4112.02 because that statute only applies to an 'employer' who is defined in R.C. 4112.01(A)(2) as 'any person employing four or more persons within the state.' ( [E]mphasis added[.] ) Dr. Rizkana never employed four or more persons at the Acme Animal Hospital." Collins then voluntarily dismissed her claim for intentional infliction of emotional distress pursuant to Civ.R. 41(A)(1).

The court of appeals affirmed the summary judgment upon a similar basis.

The cause is now before the court pursuant to the allowance of a motion to certify the record.

Karen Edwards-Smith and Robert A. Edwards, Akron, for appellant.

Gutierrez, Mackey & Tatarsky Co., L.P.A., and Kathleen O. Tatarsky, Canton, for appellee.

ALICE ROBIE RESNICK, Justice.

The issue before the court is whether Ohio should recognize a common-law tort claim for wrongful discharge in violation of public policy based upon alleged sexual harassment/discrimination.

As a threshold matter, we must construe the evidence most strongly in favor of Collins. Civ.R. 56(C). In so doing, we must conclude that a genuine issue of material fact remains as to whether Dr. Rizkana subjected Collins to a series of unwanted and offensive sexual contacts and retaliated against her for refusing to disclaim the occurrences, resulting in her constructive discharge.

The traditional rule in Ohio and elsewhere is that a general or indefinite hiring is terminable at the will of either party, for any cause, no cause or even in gross or reckless disregard of any employee's rights, and a discharge without cause does not give rise to an action for damages. See Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 102, 23 OBR 260, 261-262, 491 N.E.2d 1114, 1116; Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d 150, paragraph one of the syllabus; Henkel v. Educational Research Council of Am. (1976), 45 Ohio St.2d 249, 255, 74 O.O.2d 415, 418, 344 N.E.2d 118, 121-122. See also, Wagenseller v. Scottsdale Mem. Hosp. (1985), 147 Ariz. 370, 375-376, 710 P.2d 1025, 1030-1031. This has become known as the "employment-at-will" doctrine.

In the latter half of the twentieth century, an exception developed throughout the country which has come to be known as a cause of action for "wrongful discharge," "abusive discharge," "retaliatory discharge," or "discharge in derogation of public policy." Under this exception, an employer who wrongfully discharges an employee in violation of a clearly expressed public policy will be subject to an action for damages. See, generally, Holloway & Leech, Employment Termination: Rights and Remedies (2 Ed.1993), Chapter 3.

The origin of the public policy exception to the employment-at-will doctrine can be traced to the case of Petermann v. Internatl. Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., Local 396 (1959), 174 Cal.App.2d 184, 344 P.2d 25. There, the California appellate court held that:

" * * * It would be obnoxious to the interests of the state and contrary to public policy and sound morality to allow an employer to discharge any employee, whether the employment be for a designated or unspecified duration, on the ground that the employee declined to commit perjury, an act specifically enjoined by statute. The threat of criminal prosecution would, in many cases, be a sufficient deterrent upon both the employer and employee, the former from soliciting and the latter from committing perjury. However, in order to more fully effectuate the state's declared policy against perjury, the civil law, too, must deny the employer his generally unlimited right to discharge an employee whose employment is for an unspecified duration, when the reason for the dismissal is the employee's refusal to commit perjury." Id. at 188-189, 344 P.2d at 27.

In the approximately thirty-five years since the Petermann decision, an overwhelming majority of courts have recognized a cause of action for wrongful discharge in violation of public policy. See Holloway & Leech, Employment Termination: Rights and Remedies, supra, at 135, fn. 5; Individual Employment Rights Manual (BNA Lab.Rel.Rptr. [1994] ), Section 505:51; Annotation, Modern Status of Rule That Employer May Discharge At-Will Employee for Any Reason (1982), 12 A.L.R.4th 544. In adopting the exception, it is often pointed out that the general employment-at-will rule is a harsh outgrowth of outdated and rustic notions. The rule developed during a time when the rights of an employee, along with other family members, were considered to be not his or her own but those of his or her paterfamilias. The surrender of basic liberties during working hours is now seen "to present a distinct threat to the public policy carefully considered and adopted by society as a whole. As a result, it is now recognized that a proper balance must be maintained among the employer's interest in operating a business efficiently and profitably, the employee's interest in earning a livelihood and society's interest in seeing its public policies carried out." Palmateer v. Internatl. Harvester Co. (1981),...