Robert Greeley v. Miami Valley Maintenance Contractors, Inc.

• Decision Date: 29 August 1988
• Docket Number: 88-LW-3057,87-12-164
• Parties: Robert GREELEY, Plaintiff-Appellant, v. MIAMI VALLEY MAINTENANCE CONTRACTORS, INC., Defendant-Appellee.
• Court: Ohio Court of Appeals

Robert GREELEY, Plaintiff-Appellant, v. MIAMI VALLEY MAINTENANCE CONTRACTORS, INC. Defendant-Appellee.

No. 87-12-164. Judgment reversed and cause remanded 49 Ohio St. 3d 228 (1990).

88-LW-3057 (12th)

Court of Appeals of Ohio, Twelfth District, Butler County.

August 29, 1988

Jack Cornett, Hamilton, for plaintiff-appellant.

Baden Jones, Scheper & Crehan Co., Thomas C. Eberwein, Hamilton for defendant-appellee.

MEMORANDUM DECISION AND JUDGMENT ENTRY

PER CURIAM

This cause came on to be heard upon an appeal, transcript of the docket, journal entries and original papers from the Court of Common Pleas of Butler County, Ohio, briefs and oral arguments of counsel.

Now therefore, the assignment of error having been fully considered is passed upon in conformity with App.R. 12(A) as follows:

Plaintiff-appellant, Robert Greeley, brought suit against his former employer, Miami Valley Maintenance Contractors, Inc., defendant-appellee, alleging that he had been discharged by appellee in violation of R.C. 3113.213(D). This statute prohibits an employer from discharging an employee because the employee's earnings have been subjected to a child support wage assignment order. Appellant requested both compensatory and punitive damages as well as attorney's fees.

Pursuant to Civ.R. 12(B)(6), appellee filed a motion to dismiss the complaint, arguing appellant's complaint failed to state a claim upon which relief can be granted because no claim sounding in tort existed under R.C. 3113.213(D). The trial court granted appellee's motion and dismissed the complaint with prejudice. Appellant has filed a timely appeal in which he claims error in the dismissal of his complaint by the trial court.

In order for the trial court to dismiss appellant's complaint pursuant to Civ.R. 12(B)(6), it must appear beyond doubt from the face of the complaint that appellant can prove no set of facts entitling him to recovery. O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, syllabus.

Appellant's complaint sets forth a claim of tortious wrongful discharge, alleging appellee discharged appellant solely because the Butler County Domestic Relations Court ordered a child support wage assignment on appellant's wages. The supreme court, however, has refused to recognize a cause of action for the tort of wrongful discharge in the absence of specific statutory authority. See, Phung v. Waste Management, Inc. (1986), 23 Ohio St.3d 100, 103; Fawcett v. G.C. Murphy & Co. (1976), 46 Ohio St.2d 245, 249-250.

Although R.C. 3113.213 does not explicitly provide for a civil cause of action for damages, appellant contends that such a remedy can be implied from the wording of the statute. R.C. 3113.213(D) lists the following remedy when an employer terminates an employee solely because of a child support wage assignment:

"No employer may use an order to withhold personal earnings described in division (D)(1) of section 3113.21 of the Revised Code, as a basis for a discharge of, or for any disciplinary action against, an employee, or as a basis for a refusal to employ a person. The court may fine an employer who so discharges or takes disciplinary action against an employee, or refuses to employ a person, not more than five hundred dollars."

Notwithstanding that the above statute sets forth its own remedy for violation of the statute, appellant urges this court to hold that R.C. 3113.213(D) gives rise to a civil cause of action for damages. In determining if a civil cause of action is available when the statute is silent on the matter, the court must inquire whether the General Assembly, by "clear implication," intended to create a civil action for damages for violation of the statute. Fawcett v. G.C. Murphy & Co., supra, at 249.

The legislative history of R.C. 3113.213 reveals the General Assembly enacted the statute as a result of the Child Support Enforcement Amendments of 1984, which were passed to improve the effectiveness of child support enforcement in every state. Pub.L. No. 98-378, 98 Stat. 1305 (codified in scattered sections of Title 42 and Title 26, U.S. Code). The amendments required every state to adopt certain provisions for income withholding for child support. In addition, the amendments mandated that states would adopt the following clause:

"Provision must be made for the imposition of a fine...