Thomson v. Boss Excavating & Grading, Inc.
| Decision Date | 21 October 2021 |
| Docket Number | No. 20AP-263,20AP-263 |
| Citation | 179 N.E.3d 728 |
| Parties | Trent THOMSON, Plaintiff-Appellant, v. BOSS EXCAVATING & GRADING, INC., Defendant-Appellee. |
| Court | Ohio Court of Appeals |
On brief: Stebelton Snider, LPA, Daniel J. Fruth, Abbey M. Becca, and Charles M. Elsea, Lancaster, for appellant. Argued: Mickellea M. Tennis.
On brief: Kegler, Brown, Hill + Ritter, Brendan P. Feheley, and Jane K. Gleaves, Columbus, for appellee. Argued: Jane K. Gleaves.
DECISION
{¶ 1} Plaintiff-appellant, Trent Thomson, appeals the April 28, 2020 decision and entry of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant-appellee Boss Excavating & Grading, Inc. ("Boss"). For the following reasons, we reverse.
{¶ 2} On January 31, 2019, appellant filed a complaint in the trial court. In his complaint, appellant asserted Boss failed to pay prevailing wage in accordance with R.C. 4115.01 et seq. and wrongfully discharged him in violation of public policy.
{¶ 3} On March 5, 2019, Boss filed a motion to dismiss appellant's complaint pursuant to Civ.R. 12(B)(6) for failing to exhaust his administrative remedies and, thereby, failing to state a claim upon which relief could be granted. On March 18, 2019, appellant filed an amended complaint in which he dropped the prevailing wage claim and asserted only a claim for wrongful discharge in violation of public policy. Appellant alleged he worked as a supervisor for Boss on a project in New Albany, Ohio. Between May and November 2018, Boss failed to pay appellant and other Boss employees prevailing wages. Appellant received complaints from the employees he supervised regarding Boss's failure to pay prevailing wage. Appellant relayed these complaints to his superiors multiple times, but the employees were still not paid the proper prevailing wage. On November 5, 2018, appellant alleged he again informed his superiors at Boss regarding the employee complaints, stating that he would contact the Ohio Department of Labor if Boss did not properly pay the employees prevailing wage. According to appellant, Boss immediately fired him. In his amended complaint, appellant alleged that he suffered damages due to his wrongful termination including back pay, front pay, and pain and suffering. Appellant also alleged he is entitled to punitive damages. Appellant demanded judgment for lost wages, punitive damages, reasonable attorney fees and costs. Although appellant did not specifically seek reinstatement, he did request "any additional relief as this Court deems just and proper." (Am. Compl. at 4.) On April 1, 2019, Boss filed an answer to appellant's amended complaint.
{¶ 4} On March 4, 2020, Boss filed a motion for summary judgment. On March 31, 2020, appellant filed a response to Boss's summary judgment motion. On April 28, 2020, the trial court filed a decision and entry granting summary judgment in favor of Boss.
{¶ 5} Appellant appeals and assigns the following single error for our review:
The Trial Court erred in finding that the jeopardy element of a common law wrongful discharge claim is not met here.
{¶ 6} In his single assignment of error, appellant challenges the trial court's conclusion that he cannot establish the jeopardy element of his wrongful discharge claim as a matter of law. Appellant argues R.C. Chapter 4115 articulates a substantive right of employees to be paid a prevailing wage. Appellant further argues that the remedies set forth in R.C. Chapter 4115 do not adequately protect his substantive right to be paid a prevailing wage. Appellant argues the trial court erred in granting summary judgment in favor of Boss on the grounds that the jeopardy element of the common law wrongful discharge in violation of public policy claim had not been met.
{¶ 7} We review a decision on a motion for summary judgment under a de novo standard. LRC Realty, Inc. v. B.E.B. Properties , 160 Ohio St.3d 218, 2020-Ohio-3196, 155 N.E.3d 852, ¶ 11. De novo appellate review means the court of appeals conducts an independent review, without deference to the trial court's decision. Wiltshire Capital Partners v. Reflections II, Inc. , 10th Dist., 2020-Ohio-3468, 154 N.E.3d 1036, ¶ 12. Summary judgment is appropriate only when the moving party demonstrates: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made. Civ.R. 56(C) ; State ex rel. Grady v. State Emp. Relations Bd. , 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997). In ruling on a motion for summary judgment, the court must resolve all doubts and construe the evidence in favor of the nonmoving party. Premiere Radio Networks, Inc. v. Sandblast, L.P. , 10th Dist. No. 18AP-736, 2019-Ohio-4015, 2019 WL 4757045, ¶ 6.
{¶ 8} Pursuant to Civ.R. 56(C), the party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and of identifying those portions of the record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). The moving party cannot satisfy this initial burden by simply making conclusory allegations, but instead must demonstrate, including by use of affidavit or other evidence allowed by Civ.R. 56(C), that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Wiltshire Capital at ¶ 13. If the moving party fails to satisfy this initial burden, the court must deny the motion for summary judgment; however, if the moving party satisfies the initial burden, the nonmoving party has a burden to respond, by affidavit or otherwise as provided under Civ.R. 56, with specific facts demonstrating a genuine issue exists for trial. Dresher at 293, 662 N.E.2d 264 ; Hall v. Ohio State Univ. College of Humanities , 10th Dist. No. 11AP-1068, 2012-Ohio-5036, 2012 WL 5336049, ¶ 12, citing Henkle v. Henkle , 75 Ohio App.3d 732, 735, 600 N.E.2d 791 (12th Dist.1991).
{¶ 9} "The traditional rule in Ohio is that a general or indefinite hiring is terminable at the will of either the employer or the employee, for any cause or no cause." Miracle v. Ohio Dept. of Veterans Servs. , 157 Ohio St.3d 413, 2019-Ohio-3308, 137 N.E.3d 1110, ¶ 11, citing Collins v. Rizkana , 73 Ohio St.3d 65, 67, 652 N.E.2d 653 (1995). This general rule is "commonly known as the employment-at-will doctrine, which was judicially created and thus may be judicially abolished." Sutton v. Tomco Machining, Inc. , 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938, ¶ 7, citing Kulch v. Structural Fibers, Inc. , 78 Ohio St.3d 134, 161, 677 N.E.2d 308 (1997). In 1990, the Supreme Court of Ohio first recognized an exception to this rule for wrongful discharge in violation of public policy, holding that "[p]ublic policy warrants an exception to the employment-at-will doctrine when an employee is discharged or disciplined for a reason which is prohibited by statute." Greeley v. Miami Valley Maintenance Contrs., Inc. , 49 Ohio St.3d 228, 551 N.E.2d 981 (1990), paragraph one of the syllabus. See Painter v. Graley , 70 Ohio St.3d 377, 639 N.E.2d 51 (1994), paragraph three of the syllabus (recognizing that sources of public policy other than statutes may provide the basis for a wrongful-discharge claim). Sutton at ¶ 8, citing Painter at 385, 639 N.E.2d 51.
{¶ 10} In order to prevail on a claim for wrongful discharge in violation of public policy, a plaintiff must establish four elements:
(1) that a clear public policy existed and was manifested either in a state or federal constitution, statute or administrative regulation or in the common law ("the clarity element"), (2) that dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy ("the jeopardy element"), (3) the plaintiff's dismissal was motivated by conduct related to the public policy ("the causation element"), and (4) the employer lacked an overriding legitimate business justification for the dismissal ("the overriding-justification element").
Miracle at ¶ 12, citing Collins at 69-70, 652 N.E.2d 653. The clarity and jeopardy elements present questions of law, whereas the causation and overriding-justification elements present factual questions and, as such, are determined by the finder of fact.
{¶ 11} As claims for wrongful discharge in violation of public policy are made under common law, it is the responsibility of the courts to "determine when public-policy exceptions must be recognized and to set the boundaries of such exceptions." Sutton at ¶ 8, citing Kulch at 161, 677 N.E.2d 308. Since Greeley , the Supreme Court has examined claims for wrongful discharge in violation of public policy in a variety of contexts. See Collins ( that an employee may bring a cause of action for wrongful discharge in violation of public policy based on sexual harassment and discrimination); Kulch (); Wiles v. Medina Auto Parts , 96 Ohio St.3d 240, 2002-Ohio-3994, 773 N.E.2d 526 (...
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