South v. Toledo Edison Co.

• Decision Date: 21 March 1986
• Docket Number: No. L-85-083,L-85-083
• Citation: 513 N.E.2d 800,32 Ohio App.3d 24
• Parties: , 45 Fair Empl.Prac.Cas. (BNA) 422 SOUTH, Appellant, v. TOLEDO EDISON COMPANY, Appellee. *
• Court: Ohio Court of Appeals

Page 24

32 Ohio App.3d 24

513 N.E.2d 800, 45 Fair Empl.Prac.Cas. (BNA) 422

SOUTH, Appellant, v. TOLEDO EDISON COMPANY, Appellee. ^*

No. L-85-083.

Court of Appeals of Ohio, Sixth District, Lucas County.

March 21, 1986.

Syllabus by the Court

1. R.C. 4101.17(B) (age discrimination) does not entitle a litigant to a jury trial.

2. R.C. 4101.17(B) (age discrimination) does not authorize an award of either compensatory or punitive damages.

3. Ohio does not recognize a cause of action for tortious wrongful discharge from employment. (Fawcett v. G.C. Murphy & Co. [1976], 46 Ohio St.2d 245, 75 O.O.2d 291, 348 N.E.2d 144, followed.)

Francis J. Landry, Toledo, for appellant.

Stephen J. Stanford and John J. McHugh III, Toledo, for appellee.

HANDWORK, Judge.

This appeal arises from a judgment of the Lucas County Court of Common Pleas wherein the trial court dismissed appellant's complaint against appellee, pursuant to the latter's motion for involuntary dismissal. The pertinent facts may be summarized as follows.

Ruth N. South, appellant herein, was employed by appellee Toledo Edison Company from October 7, 1967 until June 7, 1983. She began her employment in a union position as a secretary-stenographer, but relinquished that position on August 27, 1979, to assume the non-union position of executive secretary to the vice president in charge of the nuclear mission. Appellant served in that position until May 31, 1983, at which time she was advised that she would be removed from that position, due to alleged breaches of confidentiality and other irregularities in her job performance.

On June 3, 1983, appellant attended a meeting with the vice president, and two other company employees. The vice president informed her that she could no longer serve as his executive secretary, and appellant was then offered three choices: resignation, inactive status with early retirement, or termination. She was asked to communicate her decision by June 6, 1983, but was granted an extension until June 7, 1983. On that date, appellant presented a letter wherein she expressly rejected early retirement and resignation, and she further stated that she still considered herself employed as executive secretary to the vice president. Appellant was then informed that, because she had expressly rejected early retirement and resignation, she would be terminated as of that date. Appellant requested time to reconsider and to consult with her attorney, and appellee granted her request.

There then ensued an exchange of correspondence between counsel for the parties. On June 30, 1983, appellee orally offered appellant employment in another clerical position, and later confirmed that offer in letters dated July 6, 1983 and July 14, 1983. Appellant failed to respond to the latter, prompting appellee to extend a final offer in a letter dated July 27, 1983. Appellant was instructed to respond no later than August 5, 1983. She never responded, but on August 11, 1983, withdrew all funds from her share of the company's savings incentive plan.

Two months later, appellant filed the suit below, seeking relief based on three different claims: (1) unlawful age discrimination in violation of R.C. 4101.17; (2) breach of an implied employment contract; and (3) tortious wrongful discharge. She sought, inter alia, lost wages, lost benefits, reinstatement, and compensatory and punitive damages. She also demanded a trial by jury.

On May 3, 1984, the trial court dismissed appellant's third claim, that of tortious wrongful discharge. On September 28, 1984, the trial court ordered stricken certain portions of appellant's prayer for compensatory and punitive damages under her discrimination claim. On October 26, 1984, the trial court granted appellee summary judgment on appellant's second claim, that of breach of contract. Consequently, the only claim remaining for trial was the age-discrimination claim.

On February 1, 1985, the trial court granted appellee's motion to strike the jury demand, and the case was then tried to the court. At the close of appellant's case, appellee moved for involuntary dismissal pursuant to Civ.R. 41(B)(2). The motion was denied, and appellee presented its defense. At the close of all evidence, appellee renewed its motion.

The trial court rendered its decision and entered judgment thereon on February 6, 1985. Therein, the trial court held that appellant had failed to prove her age-discrimination claim, and dismissed her complaint with prejudice.

This appeal followed, and appellant has set forth the following seven assignments of error:

"I. The common pleas court erred when it granted defendant-appellee's motion to strike [the] jury demand on plaintiff-appellant's claim brought pursuant to R.C. 4101.17(B).

"II. The common pleas court erred when it granted defendant's motion to strike plaintiff's claims for general compensatory and punitive damages.

"III. The common pleas court erred in granting defendant-appellee's motion for involuntary dismissal under Civil Rule 41(B)(2) after the conclusion of trial as said order was based on an erroneous finding that plaintiff-appellant was not discharged and an erroneous ruling granting admission into evidence of offers to compromise.

"IV. The common pleas court erred in granting defendant-appellee's motion for involuntary dismissal under Civil Rule 41(B)(2) after the conclusion of trial as the common pleas court applied an improper standard to allocate the burden of proof under R.C. 4101.17(B).

"V. The common pleas court erroneously found that the defendant-appellee justified its decision with a non-discriminatory reason and that plaintiff-appellant failed to prove that her employer's action was a mere pretext.

"VI. The common pleas court erred in granting defendant-appellant's [sic] motion to dismiss plaintiff-appellant's third claim for relief alleging wrongful discharge based on tort theory.

"VII. The common pleas court erred in granting defendant-appellee's motion for summary judgment on plaintiff-appellant's second claim for relief based on contractual theory."

In support of her first assignment of error, appellant argues that she was entitled to a trial by jury and that it was error for the trial court to deny her the same. We do not agree.

R.C. 4101.17(B) sets forth the remedies available to a prevailing party wrongfully discharged because of age, to wit:

"(B) Any person between the ages of forty and seventy discriminated against in any job opening or discharged without just cause by an employer * * * may institute a civil action against the employer in a court of competent jurisdiction. If the court finds that an employer has discriminated on the basis of age, the court shall order an appropriate remedy which shall include reimbursement to him for the costs, including reasonable attorney fees, of the action, or to reinstate the employee in his former position with compensation for lost wages and any lost fringe benefits from the date of the illegal discharge and to reimburse him for the costs, including reasonable attorney fees, of the action. * * * "

The Ohio Constitution preserves the right to a jury trial only in those civil actions where the right existed prior to the adoption of Section 5, Article I of the Ohio Constitution. Belding v. State, ex rel. Heifner (1929), 121 Ohio St. 393, 169 N.E. 301, paragraph one of the syllabus. See, also, McIntyre v. Northern Ohio Properties (1979), 64 Ohio App.2d 179, 185, 18 O.O.3d 139, 144, 412 N.E.2d 434, 438. Where a statute sets forth a new civil right, the legislature may grant a concomitant right to jury trial, but need not do so. Raine v. Curry (1975), 45 Ohio App.2d 155, 162, 74 O.O.2d 171, 175, 341 N.E.2d 606, 611.

R.C. 4101.17(B) does not provide for a trial by jury in actions brought pursuant to that statute. Rather, the statute provides that a trial court "shall order an appropriate remedy * * *," and then enumerates the specific relief afforded to a litigant. Such relief does not include a jury trial and appellant therefore had no statutory right to the same. Nor was any such relief available at common law. Cf. Howard v. State Farm Ins. Co. (1978), 61 Ohio App.2d 198, 203, 15 O.O.3d 317, 320, 401 N.E.2d 462, 466. Cf., also, Brunecz v. Houdaille Industries, Inc. (1983), 13 Ohio App.3d 106, 107, 13 OBR 123, 125, 468 N.E.2d 370, 372.

We determine, therefore, that appellant was not entitled to a jury trial, and the trial court did not err in striking her jury demand. Accordingly, we find appellant's first assignment of error to be not well-taken.

Appellant's second assignment of error is that the trial court should not have ordered stricken, from her complaint, appellant's claims for general compensatory and punitive damages. She contends that, because the statute does not explicitly exclude such relief, the same should be recoverable.

This is a question of first impression in Ohio. We must therefore construe not only the statute, but related decisions as well, to ascertain the legislature's intent concerning such damages.

R.C. 4101.17 was first enacted in 1961 (129 Ohio Laws 1803) and originally stated:

"No employer shall refuse opportunity of interview for employment of applicants or discharge without just cause any employee[s] 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 statute did not, as originally enacted, include within its terms a remedy for its violation.

The Ohio Supreme Court, in Fawcett v. G.C. Murphy & Co. (1976), 46 Ohio St.2d 245, 75 O.O.2d 291, 348 N.E.2d 144, syllabus, thereafter held that "[v]iolation of the provisions of R.C. 4101.17 by an employer does not give rise to a civil action for damages." Instead, the court ruled, the Department of Industrial Relations was vested with the authority to enforce the statute....