Fawcett v. G. C. Murphy & Co.

• Decision Date: 19 May 1976
• Docket Number: Nos. 75-202,75-203 and 75-204,s. 75-202
• Citation: 348 N.E.2d 144,46 Ohio St.2d 245,75 O.O.2d 291
• Parties: , 16 Fair Empl.Prac.Cas. (BNA) 1413, 75 O.O.2d 291 FAWCETT, Appellant, v. G. C. MURPHY & CO. et al., Appellees. BRUEWER, Appellant, v. GEILER PLUMBING COMPANY et al., Appellees. WILSON, Appellant, v. CINCINNATI MILACRON, INC., Appellee.
• Court: Ohio Supreme Court

Page 245

46 Ohio St.2d 245

348 N.E.2d 144, 16 Fair Empl.Prac.Cas. (BNA) 1413,

75 O.O.2d 291

FAWCETT, Appellant, v. G. C. MURPHY & CO. et al., Appellees.

BRUEWER, Appellant, v. GEILER PLUMBING COMPANY et al., Appellees.

WILSON, Appellant, v. CINCINNATI MILACRON, INC., Appellee.

Nos. 75-202, 75-203 and 75-204.

Supreme Court of Ohio.

May 19, 1976.

The cause was tried to a jury and resulted in a verdict for appellant against G. C. Murphy & Co., awarding $38,000 damages for discharge without just cause, and a verdict in favor of G. C. Murphy & Co. and Lloyd Havens on the cause of action based upon slander. Judgment was entered by the trial court accordingly.

Upon appeal and cross-appeal to the Court of Appeals, that court reversed the judgment of the trial court rendered against G. C. Murphy & Co. on the issue of discharge without just cause, and affirmed the judgment of the trial court rendered on the issue of slander.

In case No. 75-203, plaintiff-appellant, Catherine Bruewer, filed an action for damages for discharge from employment against defendants-appellees, Geiler Plumbing Company and Home Service Plumbing Co., Inc., in the Court of Common Pleas of Hamilton County.

In the complaint appellant alleges that she '* * * has been physically able to perform the duties assigned to her and performed by her * * * and * * * meets the established requirements of the industry in which she was employed * * * and the laws pertaining to the relationship between employer and employee.' It is further alleged that appellant was discharged 'without just cause.'

In case No. 75-204, plaintiff-appellant, Ivan R. Wilson, filed an action for damages for discharge from employment against defendant-appellee, Cincinnati Milacron, Inc., in the Court of Common Pleas of Hamilton County.

In the complaint, appellant alleges that he '* * * has been physicially able to perform the duties of * * * (his) position * * * and * * * met the established requirements of the industry in which he was employed * * * and the laws pertaining to the relationship between employer and employee.' It is alleged also that appellant was discharged 'without just cause.'

In cases Nos. 75-203 and 75-204 motions to dismiss filed by defendants-appellees were sustained by the trial court and the causes were dismissed with prejudice. Upon appeal to the Court of Appeals, that court affirmed the judgments of the trial court.

All three causes are now before this court pursuant to the allowance of motions to certify the records.

Paxton & Seasongood, Paul M. Schindler and Bruce M. Allman, Cincinnati, for appellants (cases Nos. 75-202, 75-203 and 75-204).

Benjamin, Faulkner, Dreibelbis & Tepe and Edwin J. Dreibelbis, Cincinnati, for appellees (case No. 75-202).

Gorman, Davis, Hengelbrok & Price, David N. Gorman and Edwin C. Price, Jr., Cincinnati, for appellees (case No. 75-203).

Taft, Stettinius & Hollister, J. Mack Swigert and Roger A. Weber, Cincinnati, for appellee (case No. 75-204).

C. WILLIAM O'NEILL, Chief Justice.

Common issues of law are presented in these three appeals and they are, therefore, consolidated herein for purposes of review.

The first issue, as stated by appellants, is whether the 'statutory policy' set forth in R.C. 4101.17 'must be implemented by Ohio courts in a private civil action for damages.'

R.C. 4101.17 reads:

'No employer shall refuse opportunity of interview for employment of applicants or discharge without just cause any employee between the ages of forty and sixty-five who are physically able to perform the duties and otherwise meet the established requirements of the industry and laws pertaining to the relationship between employer and employee.'

The foregoing statute does not include within its terms a remedy for its breach. Appellants argue that 'in some manner some authority may enforce the provisions of R.C. 4101.17' and that '* * * at least one such authority is the judiciary.'

It is evident that a holding that violation of R.C. 4101.17 gives rise to a civil action for damages would require this court by implication to determine that the General Assembly, by the enactment of the statute, intended to create such a cause of action.

R.C. 4101.17 is part of the Chapter of the Revised Code entitled 'Department of Industrial Relations' and the other provisions of that Chapter of the Code are relevant to the construction of that section.

R.C. 4101.02 empoywers the Department of Industrial Relations to '(a)dminister and enforce * * * laws protecting the * * * welfare of employees in employment and places of employment * * *.' R.C. 4101.03 confers authority upon the Department of Industrial Relations 'to enforce and administer all laws and all lawful orders requiring such employment and place of employment * * * to be safe and requiring the protection of the life, health, safety, and welfare of every employee * * *.'

R.C. 4101.05 authorizes the Director of Industrial Relations, or deputies, or authorized employees of the department to 'enter any place of employment for the purpose of collecting facts and statistics, examining the provisions made for the health, safety, and welfare of the employees therein, and bring to the attention of every employer any law or any order and any failure on the part of such employer to comply therewith.'

R.C. 4101.15 provides that '(n)o employer * * * shall * * * fail to perform any duty lawfully enjoined * * * for which violation no penalty has been specifically provided, or fail to obey and lawful order given or made by the department * * *.'

Finally, R.C. 4101.99(A) provides fines for violation of R.C. 4101.15.

A reading of the foregoing statutes reveals that the Department of Industrial Relations is vested with authority to enforce R.C. 4101.17 administratively by virtue of the department's power to issue orders and to prosecute violations of its orders under R.C. 4101.99(A). It is logically inferrable that these administrative enforcement procedures were intended by the General Assembly to be utilized for violations of R.C. 4101.17.

In Johnson v. United States Steel Corporation (1964), 348 Mass. 168, 202 N.E.2d 816, the Supreme Judicial Court of Massachusetts was confronted with a question similar to the one raised here. The statute at issue in that case read:

'It is hereby declared to be against public policy to dismiss from employment any person between the ages of forty-five and sixty-five, or to refuse to employ him, because of his age.'

In determining that the foregoing statute did not provide a civil remedy the court stated, at page 169, 202 N.E.2d at page 817:

'Nowhere in c. 149 is any express civil remedy provided for the violation of * * * (the statute). And there is no basis for implying one. * * *

'* * * The defendant's duty not to discharge the plaintiff before he had reached the age of sixty-five is solely the creature of statute; no such duty exists at common law. The only basis for holding the defendant liable is the statute. But that does not expressly provide a civil remedy. Nor does it appear that such a remedy was intended by 'clear implication."

Similarly, here, it cannot be concluded that the General Assembly by 'clear implication' intended to create a civil action for damages for the breach of R.C. 4101.17. This court, therefore, is disinclined to read such a remedy into that section.

The second common issue presented is appellants' contention that the right of employers 'to terminate employment at will for any cause, at any time whatever, is not absolute, but limited by principles which protect persons from gross or reckless disregard of their rights and interests, wilful, wanton or malicious acts or acts done intentionally, with insult, or in bad faith.'

The holding in Anderson v. Minter (1972), 32 Ohio St.2d 207, 291 N.E.2d 457, refutes that contention. In that case, plaintiff, contending that her suspension from employment 'was in violation of the protection accorded her by the civil service provisions of the Ohio Revised Code,' filed suit against Minter, the Director of the Cuyahoga County Welfare Department, her employer, and against her supervisor, Tuttle. The action against the supervisor was based upon an allegation that he had induced the director to suspend plaintiff. It was alleged that both the director and the supervisor had 'acted maliciously.' Damages were sought against both Minter and Tuttle.

Discussing the liability of Tuttle and applying the same reasoning to the cause of action seeking monetary damages against Minter, Justice Leach stated, at page 213, 291 N.E.2d at page 461:

'Tuttle is alleged to have maliciously induced Minter to suspend plaintiff, and upon that basis the Court of Appeals concluded that an 'action in tort' is stated against Tuttle 'for interference with (plaintiff's) employment.' We disagree.

'Tuttle is alleged to have been 'in a supervisory position over the plaintiff at the time of the acts complained of.'

'Causes of action have been recognized against 'outsiders' for malicious interference with employment. Johnson v. Aetna Life Ins. Co. (1914), 158 Wis. 56, 147 N.W. 32. Where, however, the act complained of is within the scope of a defendant's duties , a cause of action in tort for monetary damages does not lie. Nor can liability he predicated simply upon the caracterization of such conduct as malicious. See Caverno v. Fellows (1938), 300 Mass. 331, 15 N.E.2d 483; Feely v. McAuliffe (1948), 335 Ill.App. 99, 80 N.E.2d 373; Beane v. Weiman Co. (1969), 5 N.C.App. 279, 168 S.E.2d 233; Ross v. Wright (1934), 286 Mass. 269, 190 N.E. 514, 98 A.L.R. 468, and cases cited.

'As stated in Johnson v. Aetna Life Ins. Co., supra, 'Malice makes a bad case worse, but does not make wrong that which is lawful."

In addition to the question of whether violation of R.C. 4101.17 gives rise to a civil action for damages for discharge from employment, appellant, in case No. 75-204, urges that 'the right to...