Fawcett v. G. C. Murphy & Co., Nos. 75-202

CourtUnited States State Supreme Court of Ohio
Writing for the CourtC. WILLIAM O'NEILL; Discussing the liability of Tuttle and applying the same reasoning to the cause of action seeking monetary damages against Minter; In the course of the opinion; HERBERT
Citation348 N.E.2d 144,46 Ohio St.2d 245,75 O.O.2d 291
Decision Date19 May 1976
Docket NumberNos. 75-202,75-203 and 75-204
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.

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.'

[348 N.E.2d 146] 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

Page 247

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.'

Page 248

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[348 N.E.2d 147] 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

Page 249

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...

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179 practice notes
  • Almendares v. Palmer, No. 3:00CV7524.
    • United States
    • U.S. District Court — Northern District of Ohio
    • July 23, 2003
    ...the three-prong Cort v. Ash, 422 U.S. 66, 95 S.Ct. Page 809 2080, 45 L.Ed.2d 26 (1975), test. See e.g., Fawcett v. G.C. Murphy & Co., 46 Ohio St.2d 245, 348 N.E.2d 144 (1976). Under this test, the court must First, is the plaintiff "one of the class for whose especial benefit the statute wa......
  • Rawson v. Sears, Roebuck & Co., Nos. 85-1223
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 10, 1987
    ...indeed it does not preclude, expansion of the statutory sanction' to include a civil cause of action."); Fawcett v. G.C. Murphy & Co., 46 Ohio St.2d 245, 348 N.E.2d 144, 147 (1976) (affirming dismissal of claims alleging wrongful discharge on account of age, and stating "it cannot be conclu......
  • Dorricott v. Fairhill Center for Aging, No. 1:97-CV-1373.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • April 21, 1998
    ...at 103, 483 N.E.2d 150 (citing as examples Evely v. Carlon Co., 4 Ohio St.3d 163, 447 N.E.2d 1290 (1983); Fawcett v. G.C. Murphy & Co., 46 Ohio St.2d 245, 348 N.E.2d 144 (1976); Henkel v. Educational Research Council, 45 Ohio St.2d 249, 344 N.E.2d 118 (1976); La France Elec. Const. & Supp. ......
  • Kulch v. Structural Fibers, Inc., No. 95-650
    • United States
    • United States State Supreme Court of Ohio
    • April 16, 1997
    ...employee where the discharge is in violation of a statute and thereby contravenes public policy. (Fawcett v. G.C. Murphy & Co. [1976], 46 Ohio St.2d 245, 75 O.O.2d 291, 348 N.E.2d 144, "3. In Ohio, a cause of action for wrongful discharge in violation of public policy may be brought in tort......
  • Request a trial to view additional results
179 cases
  • Almendares v. Palmer, No. 3:00CV7524.
    • United States
    • U.S. District Court — Northern District of Ohio
    • July 23, 2003
    ...the three-prong Cort v. Ash, 422 U.S. 66, 95 S.Ct. Page 809 2080, 45 L.Ed.2d 26 (1975), test. See e.g., Fawcett v. G.C. Murphy & Co., 46 Ohio St.2d 245, 348 N.E.2d 144 (1976). Under this test, the court must First, is the plaintiff "one of the class for whose especial benefit the statute wa......
  • Rawson v. Sears, Roebuck & Co., Nos. 85-1223
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 10, 1987
    ...indeed it does not preclude, expansion of the statutory sanction' to include a civil cause of action."); Fawcett v. G.C. Murphy & Co., 46 Ohio St.2d 245, 348 N.E.2d 144, 147 (1976) (affirming dismissal of claims alleging wrongful discharge on account of age, and stating "it cannot be conclu......
  • Dorricott v. Fairhill Center for Aging, No. 1:97-CV-1373.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • April 21, 1998
    ...at 103, 483 N.E.2d 150 (citing as examples Evely v. Carlon Co., 4 Ohio St.3d 163, 447 N.E.2d 1290 (1983); Fawcett v. G.C. Murphy & Co., 46 Ohio St.2d 245, 348 N.E.2d 144 (1976); Henkel v. Educational Research Council, 45 Ohio St.2d 249, 344 N.E.2d 118 (1976); La France Elec. Const. & Supp. ......
  • Kulch v. Structural Fibers, Inc., No. 95-650
    • United States
    • United States State Supreme Court of Ohio
    • April 16, 1997
    ...employee where the discharge is in violation of a statute and thereby contravenes public policy. (Fawcett v. G.C. Murphy & Co. [1976], 46 Ohio St.2d 245, 75 O.O.2d 291, 348 N.E.2d 144, "3. In Ohio, a cause of action for wrongful discharge in violation of public policy may be brought in tort......
  • Request a trial to view additional results

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