Vickers v. Wren Industries, Inc., 2005 Ohio 3656 (OH 7/8/2005)

Decision Date08 July 2005
Docket NumberC.A. No. 20914.
Citation2005 Ohio 3656
PartiesRon Vickers, et al., Plaintiffs-Appellants, v. Wren Industries, Inc., et al., Defendants-Appellees.
CourtOhio Supreme Court

Dwight D. Brannon, Atty. Reg. #0021657, 130 W. Second Street, Suite 900, Dayton, Ohio 45402, Attorney for Plaintiffs-Appellants.

James A. Dyer, Atty. Reg. #0006824, Toby K. Henderson, Atty. Reg. #0071378 and SCOTT S. DAVIES, Atty. Reg. #0077080, 1900 Kettering Tower, Dayton, Ohio 45423, Attorneys for Defendants-Appellees.

OPINION

YOUNG, J., (By Assignment)

{¶ 1} Ron Vickers and his wife are the plaintiffs in this action against Wren Industries and its subsidiary Jena Tools and some individually named defendant employer managers of the defendants and are appealing from the grant of summary judgment to all the defendants by the trial court in the plaintiffs' action for wrongful discharge. On appeal, the plaintiffs are bringing the following eight assignments of error:

{¶ 2} "1. The trial court erred when it refused to allow plaintiff's age discrimination claims to proceed forward even though they were timely filed.

{¶ 3} "2. The trial court erred when it granted defendant's summary judgment on plaintiff's disability discrimination claim because the trial court failed to realize that cancer is a disability pursuant to revised code section 4112.01(A).

{¶ 4} "3. The trial court erred when it refused to recognize a public policy protecting sick workers and when it determined that plaintiff could not bring a termination in violation of public policy for discrimination.

{¶ 5} "4. The trial court erred when it did not recognize a contract between the plaintiff and defendant for the plaintiff to have lifetime employment and that plaintiff was not an employee at-will.

{¶ 6} "5. The trial court erred when it determined that since plaintiff was an employee at-will, he could not maintain a claim for promissory estoppel.

{¶ 7} "6. Defendants are responsible for the negligent misrepresentations they made to plaintiff.

{¶ 8} "7. The trial court erred when it granted defendants' motion for summary judgment on plaintiff's claim for intentional infliction of emotional distress because defendants' conduct was outrageous.

{¶ 9} "8. The trial court erred when it granted defendants' motion for summary judgment on plaintiffs' loss of consortium and punitive damages claim."

{¶ 10} The facts of the matter and the legal analysis of the trial court are found in its decision overruling the plaintiffs' motion for summary judgment and sustaining all the defendants' motions for summary judgment, as follows:

{¶ 11} "FACTS

{¶ 12} "Wren Industries operates Jena Tools (hereinafter collectively `Wren' or `Defendant'), a tool and die manufacturing facility, whose workforce is separated into two divisions: the `die side' and the `detail side.' The individually named Defendants, Dave Whitehead (`Whitehead'), Ron Barr (`Barr'), Bill Steele (`Steele'), and John Roellig (`Roellig') (hereinafter collectively `Defendants') are all managers, except Roellig, who is employed in the Human Relations Department. Plaintiff, Ron Vickers (hereinafter `Mr. Vickers' or `Plaintiff') was a die builder for Wren from March 12, 1990 until his termination on September 7, 2001. Mr. Vickers was fifty-eight years old at the time of his termination. His wife, Diana Vickers (hereinafter `Mrs. Vickers' or `Plaintiff'), is also a Plaintiff in this case.

{¶ 13} "Mr. Vickers was diagnosed with lung cancer in January of 2001. Wren allowed Mr. Vickers a flexible work schedule while he underwent radiation and chemotherapy treatments. In April 2001, Mr. Vickers' treatment ended and he resumed a normal schedule. In August 2001, Mr. Vickers informed Wren that he needed September 11, 2001 off for an appointment with a surgeon concerning the possibility of more cancer and the required surgery to remove it.

{¶ 14} "In early 2001, Wren laid off employees working on the detail side due to an economic downturn. In August of 2001, despite the fact Mr. Vickers and the other die builders were working overtime, Wren was forced to lay off die side employees because of a lack of incoming work. Whitehead asked Barr and Steele to create a list of potential employees to lay off. At this time, Barr had been the shop foreman for the die side for a few weeks. After receiving both lists at the end of August, Whitehead chose three employees to lay off. On September 7, 2001, these employees, including Mr. Vickers, were laid off.

{¶ 15} "Plaintiffs move the Court for summary judgment on their claims for breach of contract, equitable and promissory estoppel, negligent misrepresentation, age and disability discrimination, common law discrimination, and discharge in violation of public policy. Defendants move the Court for summary judgment on all fourteen of Plaintiffs' claims. In addition to claims previously listed, this includes the claims of quantum meruit, breach of the duty of good faith and fair dealing, breach of fiduciary duty, intentional infliction of emotional distress, negligent infliction of emotional distress, loss of consortium, and punitive damages.

{¶ 16} [The court then reviewed the applicable standard of review for grantng summary judgment].

{¶ 17} "LAW AND ANALYSIS

{¶ 18} "I. Age Discrimination {¶ 19} "Ohio Revised Code section 4112.02(N) provides: `An aggrieved individual may enforce the individual's rights relative to discrimination on the basis of age as provided for in this section by instituting a civil action, within one hundred eighty days after the alleged unlawful discriminatory practice occurred, ***. A person who files a civil action under this division is barred, with respect to the practices complained of, from instituting a civil action under section 4112.14 of the Revised Code ***.' Under section 4112.99: `Whoever violates this chapter is subject to a civil action for damages, injunctive relief, or any other appropriate relief.' Section 4112.99 provides an independent cause of action and does not include an express statute of limitations. Elek v. Huntington Natl. Bank (1991), 60 Ohio St.3d 135, 138, 573 N.E.2d 1056. The Ohio Supreme Court's determination of the statute of limitations for claims brought under 4112.99 varies depending upon the type of discrimination: a six-year statute of limitation for sex discrimination claims under Cosgrove v. Williamsburg of Cincinnati (1994), 70 Ohio St.3d 281, 638 N.E.2d 991, and a 180-day statute of limitation for claims based on age discrimination under Bellian v. Bicron Corp. (1994), 69 Ohio St.3d 517, 634 N.E.2d 608.

{¶ 20} "The Bellian court dealt with two issues: 1) determining the provision plaintiff was referring to when he alleged in his complaint for age discrimination that defendant violated 4112.99 and 2) determining what statute of limitations applied to 4112.99. Regarding the first issue, the court reasoned that since plaintiff's cause of action for age discrimination was brought under 4112.99 and the only provision in Chapter 4112 that recognized age discrimination was 4112.02, plaintiff had to be referring to an age discrimination claim under 4112.02. Bellian v. Bicron Corp. (1994), 69 Ohio St.3d at 519. But cf. Sterry v. Safe Auto Ins. Co. (S.D.Ohio 2003), No. C2-02-1271 (criticizing Bellian' s rationale as faulty after the General Assembly recodified R.C. 4101.17 as R.C. 4112.14, which provided a remedy for age-based discrimination). But see Senter v. Hillside Acres Nursing Ctr. of Willard, Inc. (2004), 335 F.Supp.2d 836 (stating that the addition to Chapter 4112 of 4112.14, to which the six-year statute of limitations applies, does not require a different result where the 4112.99 civil action must be predicated on a violation of 4112.02(A)).

{¶ 21} "Arguments that the enactment of 4112.14 vitiates Bellian's rationale have no merit in the present situation. Unlike Bellian, in which the court had to rationalize the provision of Chapter 4112 that plaintiff's 4112.99 claim was brought under, the Plaintiffs in the present case have specifically invoked R.C. 4112.02. This Court need not utilize the Bellian rationale to arrive at the same result, i.e., plaintiff's civil action under 4112.99 refers to the age-based discrimination identified by 4112.02.

{¶ 22} "Regarding the statute of limitations issue, the Bellian court recognized that although R.C. 4112.99 creates an independent civil action, there may be instances where it would conflict with more specific provisions of Chapter 4112, at which time the existing rules of statutory construction would be applied to address the conflicts. Bellian, at 519. Applying the Ohio rules of statutory construction, the court concluded that the specific provision (4112.02) prevails over the general provision (4112.99) and therefore, the statute of limitations under 4112.02(N) applies to age discrimination actions brought under 4112.99. Id. Accord Dunn v. Medina Gen. Hosp. (1996), 917 F.Supp. 1185, 1192 (holding that claims for age discrimination under R.C. 4211.02 and 4211.99 were time barred because they were not filed within the 180-day limitations period). But cf. Ferraro v. The B.F. Goodrich Co., 149 Ohio App.3d 301, 312, 2002-Ohio-4398, 777 N.E.2d 2282 (holding that Bellian's statutory construction rationale is inapplicable when two specific statutes, 4112.02(N) and 4112.14, creating the causes for age discrimination are at issue), and Ziegler v. IBP Hog Mkt., Inc. (2001), 249 F.3d 509 (holding that Bellian is not controlling when dealing with two specific statutes).

{¶ 23} "The Bellian court's rationale for determining that the 4112.02(N) statute of limitations governed 4112.99 is applicable here. Unlike Ferraro and Ziegler, but similar to Bellian, a general statute (4112.99) and a specific statute (4112.02(N)) are at issue in the case sub judice. Therefore,...

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