Simonelli v. Anderson Concrete Co., 94APE01-123

• Decision Date: 15 December 1994
• Docket Number: No. 94APE01-123,94APE01-123
• Citation: 99 Ohio App.3d 254,650 N.E.2d 488
• Parties: , 11 IER Cases 236 SIMONELLI, Appellant, v. ANDERSON CONCRETE CO., Appellee, et al. *
• Court: Ohio Court of Appeals

Page 254

99 Ohio App.3d 254

650 N.E.2d 488, 11 IER Cases 236

SIMONELLI, Appellant, v. ANDERSON CONCRETE CO., Appellee, et al. ^*

No. 94APE01-123.

Court of Appeals of Ohio,

Tenth District, Franklin County.

Decided Dec. 15, 1994.

Larry R. Zingarelli, Columbus, for appellant.

Arter & Hadden and Gary S. Batke, Columbus, for appellee Anderson Concrete Co.

DESHLER, Judge.

This is an appeal by plaintiff, Della S. Simonelli, from a summary judgment entered by the Franklin County Court of Common Pleas in favor of defendant, Anderson Concrete Company.

On December 31, 1992, plaintiff filed a complaint against defendant. Plaintiff subsequently filed an amended complaint on February 17, 1993. The amended complaint averred that plaintiff had been employed by defendant for seventeen years as a bookkeeper; that on September 25, 1992, co-workers of plaintiff instigated and provoked an incident with her; that without proper investigation or cause, a final disciplinary warning was issued to plaintiff for alleged misconduct; and that as a result of the disciplinary action, plaintiff contacted an attorney, who faxed a letter to defendant demanding that the written warning be removed from her file. Plaintiff's complaint alleged that defendant informed plaintiff, on October 22, 1992, that she was being fired "for getting an attorney involved in their dispute."

Plaintiff's amended complaint alleged causes of action for violation of public policy, infliction of emotional distress, breach of contract and promissory estoppel. Defendant filed an answer on February 24, 1993.

On October 7, 1993, defendant filed a motion for summary judgment. In support of its motion, defendant submitted the deposition testimony of plaintiff. Plaintiff filed a memorandum contra the motion for summary judgment on November 2, 1993.

By decision filed December 17, 1993, the trial court granted defendant's motion for summary judgment. The decision of the trial court was journalized by judgment entry filed January 6, 1994.

On appeal, plaintiff asserts four assignments of error for review:

"1. The court of common pleas committed reversible error by failing to recognize the appellant's claim of wrongful discharge in violation of public policy.

"2. The court of common pleas committed reversible error by concluding that the appellant failed to state a claim of intentional infliction of emotional distress.

"3. The court of common pleas committed reversible error by concluding that the appellant failed to state a claim of breach of contract.

"4. The court of common pleas committed reversible error by concluding that the appellant failed to state a claim of promissory estoppel."

Pursuant to Civ.R. 56(C), summary judgment shall be granted only if the evidence presented shows "that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Further, summary judgment shall not be rendered unless it appears from the evidence that "reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence * * * construed most strongly in his favor."

Under the first assignment of error, plaintiff contends that the trial court erred in failing to recognize her claim of wrongful discharge in violation of public policy. More specifically, the first count of plaintiff's amended complaint alleged that the public policy of Ohio provides that citizens have a right to consult an attorney and to have that attorney "contact a party with whom they have a dispute. By terminating plaintiff for consulting an attorney, defendant has violated Ohio public policy."

In response, defendant asserts that the trial court properly granted summary judgment as to plaintiff's public policy claim because plaintiff has failed to allege a violation of a specific statute. Defendant relies primarily upon the Ohio Supreme Court's decision in Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St.3d 541, 546, 584 N.E.2d 729, 733, in which the court held that, "[a]bsent statutory authority, there is no common-law basis in tort for a wrongful discharge claim."

Subsequent to the judgment of the trial court and the filing of briefs and oral argument in the instant case, the Ohio Supreme Court, in Painter v. Graley (1994), 70 Ohio St.3d 377, 639 N.E.2d 51, overruled Tulloh. The second and third paragraphs of the syllabus in Painter provide:

"2. To state a claim of wrongful discharge in violation of public policy, a plaintiff must allege facts demonstrating that the employer's act of discharging him contravened a 'clear public policy.' (Greeley v. Miami Valley Maintenance Contractors, Inc. [1990], 49 Ohio St.3d 228, 551 N.E.2d 981, affirmed and followed.)

"3. 'Clear public policy' sufficient to justify an exception to the employment-at-will doctrine is not limited to public policy expressed by the General Assembly in the form of statutory enactments, but may also be discerned as a matter of law based on other sources, such as the Constitutions of Ohio and the United States, administrative rules and regulations, and the common law. (Tulloh v. Goodyear Atomic Corp. [1992], 62 Ohio St.3d 541, 584 N.E.2d 729, overruled.)"

The court in Painter further observed that "an exception to the traditional doctrine of employment-at-will should be recognized only where the public policy alleged to have been violated is of equally serious import as the violation of a statute." Painter, 70 Ohio St.3d at 384, 639 N.E.2d at 56.

In the present case, as previously noted, plaintiff contends that the reason she was discharged was because she obtained the services of an attorney. In her deposition testimony, plaintiff alleges that she was fired "[b]ecause I went to see an attorney. I was told that at the final day that I was there." (Depos. Plaintiff, 82.) According to plaintiff, a member of management told her that "in light of the letter we received from your attorney, we're asking you to resign." (Depos. Plaintiff, 82.)

We note that defendant does not construe the facts in the same manner; rather, defendant essentially contends that plaintiff had been involved in prior disputes with her co-workers and that she had been warned to refrain from further disruptive behavior. Therefore, plaintiff's threat to sue her co-workers, through an attorney, was simply further indication to defendant that plaintiff was unwilling to cooperate, thereby leading to her discharge.

The facts in this case are disputed. On a motion for summary judgment, we are required to construe the facts most strongly in favor of the nonmoving party. Accordingly, assuming for purposes of summary judgment that plaintiff was fired for procuring the services of an attorney, the issue before this court is whether such action could constitute a violation of public policy.

We note that at least one federal court has held that an employer's discharge of an employee for consulting a lawyer constitutes a violation of public policy. Thompto v. Coborn's Inc. (N.D.Iowa 1994), 871 F.Supp. 1097. In Thompto, the court found a violation of public policy based upon a number of factors, including: legislative recognition of the power of the state judiciary to regulate the legal profession, including the power to admit persons to practice and to revoke a person's license to practice; the fact that lawyers, as guardians of the law, play an important role in the preservation of society; the adoption by the Iowa Supreme Court of the Code of Professional Responsibility, which articulates the public policy that citizens of the state are entitled to access to professional legal services; the fact that attorneys are the key to obtaining relief from violations of individual and group rights in the employment context; and the fact that Congress has recognized the importance of consultation and employment of legal counsel to vindicate civil rights through federal statutory provisions awarding attorney fees for parties who are successful in vindicating those rights at trial. The Thompto court further held that "[e]ven if the authorities cited above in support of the public policy did not exist, the court concludes that a consultation with a lawyer is so fundamental to our system of justice that an employer's discharge of an employee for consulting a lawyer would violate public policy." Id. at 1121.

We find persuasive the Thompto court's reasoning, and we conclude that the act of firing an employee for consulting an attorney could serve as the basis for a public policy exception to the common-law employment-at-will doctrine. We make no determination regarding the merits of plaintiff's claim; rather, genuine issues of fact remain concerning whether plaintiff was actually discharged for consulting with an attorney. Accordingly, summary judgment was improper on plaintiff's claim for violation of public policy.

For the foregoing reasons, plaintiff's first assignment of error is sustained.

Under the second assignment of error, plaintiff contends that the trial court erred in concluding that plaintiff failed to state a claim for intentional infliction of emotional distress. Specifically, plaintiff asserts that the conduct of her co-workers, regarding an incident at work on September 25, 1992, and the subsequent circumstances surrounding her termination, constituted extreme and outrageous conduct.

In Sheets v. Rockwell Internatl. Corp. (1990), 68 Ohio App.3d 345, 588 N.E.2d 271, this court noted the requirements for a claim of intentional infliction of emotional distress as pronounced by the Ohio Supreme Court in its decision in Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 6 OBR 421, 453 N.E.2d 666:

"In Yeager * * * the Supreme Court of Ohio recognized an independent cause of action for intentional infliction of emotional distress, holding in the syllabus that '[o]ne who by extreme and outrageous...