[Cite as Arnett v. Precision Strip, Inc., 2012-Ohio-2693.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY




CALVIN ARNETT,

        PLAINTIFF-APPELLANT,                                      CASE NO. 2-11-25

        v.

PRECISION STRIP, INC.,                                            OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2011-CV-0173

                                       Judgment Affirmed

                              Date of Decision:          June 18, 2012




APPEARANCES:

        C. Bradford Kelley for Appellant

        Juan Jose Perez and Sarah Crabtree Perez for Appellee
Case No. 2-11-25


PRESTON, J.

       {¶1} Plaintiff-appellant, Calvin Arnett (hereinafter “Arnett”), appeals the

judgment entry of the Auglaize County Court of Common Pleas dismissing his

wrongful termination of employment claim against defendant-appellee, Precision

Strip, Inc. (hereinafter “Precision”). We affirm.

       {¶2} On June 28, 2011, Arnett filed a complaint alleging that he was a

Precision employee from 2006 until 2009. (Doc. No. 1). The complaint further

alleged that: on or about March 3, 2009, Arnett was injured while working for

Precision; on or about March 17, 2009, Arnett filed a workers’ compensation

claim, which was approved; and on or about June 29, 2009, Arnett was fired in

retaliation for filing his workers’ compensation claim. (Id.).       The complaint

alleged that, by firing Arnett in retaliation for his filing a workers’ compensation

claim, Precision violated R.C. 4123.90 and public policy. (Id.).

       {¶3} On July 27, 2011, Precision filed a Civ.R. 12(B)(6) motion to dismiss

the complaint, alleging that Arnett’s retaliation claim was time barred under R.C.

4123.90 and Arnett’s public policy claim was merely derivative of the time-barred

R.C. 4123.90 claim. (Doc. No. 7).

       {¶4} On August 8, 2011, Arnett filed a motion to strike paragraph eight of

the complaint alleging a violation of R.C. 4123.90. (Doc. No. 11).        That same

day, Arnett filed a response to the motion to dismiss, arguing that his public policy


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claim was timely since it was an intentional tort claim governed by R.C.

2305.09(D)’s four-year statute of limitations. (Doc. No. 12).

       {¶5} On August 17, 2011, Precision filed a reply in support of its motion to

dismiss, arguing that Arnett’s exclusive remedy for his alleged wrongful

termination was under R.C. 4123.90, and Arnett failed to file his complaint within

180 days following his termination as required under the statute. (Doc. No. 13).

       {¶6} On October 11, 2011, the trial court granted Precision’s motion to

dismiss, concluding that Arnett’s public policy retaliatory termination claim was

merely derivative of his untimely R.C. 4123.90 retaliatory termination claim.

(Doc. No. 17).     The trial court further concluded that R.C. 4123.90 was the

exclusive remedy for employees, like Arnett, alleging retaliatory termination after

exercising their statutory right to claim workers’ compensation benefits, and

Arnett’s complaint was filed outside R.C. 4123.90’s 180-day time limitation. (Id.).

       {¶7} On November 8, 2011, Arnett filed a notice of appeal. (Doc. No. 20).

Arnett now appeals raising one assignment of error for our review.

                          ASSIGNMENT OF ERROR

       THE   TRIAL   COURT                ERRED        IN       DISMISSING
       APPELLANT’S CASE.

       {¶8} In his sole assignment of error, Arnett argues that the trial court erred

in dismissing his complaint since it stated a valid common law claim for wrongful

termination of employment in violation of public policy. Arnett also argues that

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his claim is not preempted by the Ohio Workers’ Compensation System. Finally,

Arnett argues that the trial court failed to address Bickers v. Western & Southern

Life Ins. Co., 116 Ohio St.3d 351, 2007-Ohio-6751, and misapplied Sutton v.

Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723.

       {¶9} “A motion to dismiss for failure to state a claim upon which relief can

be granted is procedural and tests the sufficiency of the complaint.” State ex rel.

Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992), citing

Assn. for Defense of Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116,

117 (1989). To sustain a Civ.R. 12(B)(6) dismissal, “it must appear beyond doubt

that the plaintiff can prove no set of facts in support of the claim that would entitle

the plaintiff to relief.” LeRoy v. Allen, Yurasek, & Merklin, 114 Ohio St.3d 323,

2007-Ohio-3608, ¶ 14, citing Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d

491, 2006-Ohio-2625, ¶ 11. Additionally, the complaint’s allegations must be

construed as true, and any reasonable inferences must be construed in the

nonmoving party’s favor. Id., citing Maitland v. Ford Motor Co., 103 Ohio St.3d

463, 2004-Ohio-5717, ¶ 11.

       {¶10} An appellate court reviews a trial court’s decision to grant or deny a

Civ.R. 12(B)(6) motion de novo. RMW Ventures, L.L.C. v. Stover Family Invest.,

L.L.C., 161 Ohio App.3d 819, 2005-Ohio-3226, ¶ 8 (3d Dist.), citing Hunt v.

Marksman Prod., 101 Ohio App.3d 760, 762 (9th Dist.1995). Under this standard


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of review, an appellate court may substitute, without deference, its judgment for

that of the trial court. Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership, 78

Ohio App.3d 340, 346 (2nd Dist.1992).

        {¶11} The Ohio Supreme Court addressed common-law public policy

wrongful discharge claims1 in Bickers v. W. & S. Life Ins. Co., 116 Ohio St.3d

351, 2007-Ohio-6751. In 1994, Shelly Bickers was injured in the course of her

employment with Western & Southern Life Insurance Company (“Western &

Southern”). Id. at ¶ 3. Bickers filed a claim for workers’ compensation benefits,

and the claim was allowed for multiple conditions. Id. Following the injury, and

directly related to the allowed conditions in the workers’ compensation claim,

Bickers experienced periods of inability to work.                   Id. During those periods,

Western & Southern did not provide Bickers a position within the restrictions set

by her physician.         Id.    In 2002, while Bickers was still receiving workers’

compensation benefits, Western & Southern terminated her employment. Id.

        {¶12} Thereafter, Bickers filed a complaint for wrongful discharge. Id. at ¶

4. In relevant part, Bickers alleged that she had been wrongfully terminated from

Western & Southern in violation of the state’s public policy as expressed in the




1
  Throughout the opinion, we refer to “common-law public policy wrongful discharge claims.” We use this
term as a short-hand for a specific type of common-law wrongful discharge claims; to wit: a wrongful
discharge claim in violation of the public policy underlying R.C. 4123.90, protecting employees from
retaliation for pursuing workers’ compensation benefits.

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workers compensation statutes, citing Coolidge v. Riverdale Local School Dist.,

100 Ohio St.3d 141, 2003-Ohio-5357. Id.

         {¶13} In response, Western & Southern filed a Civ.R. 12(B)(6) motion to

dismiss, which the trial court granted; thereafter, Bickers appealed. Id. at ¶ 5. The

appellate court reversed, concluding that Bickers could bring a Coolidge-based

claim of wrongful discharge in violation of public policy in a workers’

compensation context. Id. at ¶ 6, citing Bickers v. W. & S. Life Ins. Co., 1st Dist.

No. C–040342, 2006-Ohio-572. The appellate court also concluded that R.C.

4123.90’s procedural requirements, including the 180-day time limitation, were

not necessary to maintain a Coolidge-based public-policy wrongful-discharge

claim. Id.; Bickers, 2006-Ohio-572, at ¶ 16. Western & Southern then appealed to

the Ohio Supreme Court, which accepted jurisdiction. Bickers, 2007-Ohio-6751, at

¶ 7.

         {¶14} The Ohio Supreme Court reversed for two reasons. First, the Court

in Bickers limited Coolidge-based public policy wrongful discharge claims to

teachers protected by contracts covered by R.C. 3319.16. Id. at ¶ 11, 15. Since

Bickers was an at-will employee, not a contracted teacher protected by R.C.

3319.16, she could not bring a Coolidge-based public policy wrongful discharge

claim.    Id. at ¶ 11.   Second, the Court in Bickers concluded that judicially

imposing common-law principles of wrongful discharge into the workers’


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compensation arena “runs counter to ‘the balance of mutual compromise between

the interests of the employer and the employee’ as expressed by the General

Assembly within the Act”; and therefore, “Bickers’ remedy must be found within

the workers’ compensation statutes.” Id. at ¶ 25. The Court in Bickers then held

that:

        an employee who is terminated from employment while receiving

        workers’ compensation has no common-law cause of action for

        wrongful discharge in violation of the public policy underlying R.C.

        4123.90, which provides the exclusive remedy for employees

        claiming termination in violation of rights conferred by the Workers’

        Compensation Act. Id. at ¶ 26, syllabus.

        {¶15} Four years later, the Ohio Supreme Court created a narrow exception

to its elimination of common-law public policy wrongful discharge claims in

Bickers, recognizing such claims when an injured employee suffered a retaliatory

employment action after injury but before he filed, instituted, or pursued a

workers’ compensation claim. Sutton v. Tomco Machining, Inc., 129 Ohio St.3d

153, 2011-Ohio-2723, at paragraph two of the syllabus. Since R.C. 4123.90 does

not expressly prohibit retaliation against injured employees who have not yet filed,

instituted, or pursued a workers’ compensation claim, the Court’s exception in

Sutton was designed to fill the “gap [that] exists in the language of the statute for


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conduct that occurs between the time immediately following injury and the time in

which a claim is filed, instituted, or pursued.” Id. at ¶ 14.

       {¶16} Arnett admits that Sutton’s exception is inapplicable because he was

terminated after filing his workers’ compensation claim. (Appellant’s Brief at 8).

Nevertheless, Arnett argues that Bickers allows him to file his common-law public

policy wrongful discharge claim since Bickers only eliminated such claims for

employees who were discharged for nonretaliatory reasons, unlike him. (Id. at 7-

8). We disagree.

       {¶17} The Court in Bickers reached both a narrow and a broad holding.

Central to both of Bickers holdings was the premise that the General Assembly

enacted a statutory workers’ compensation system, which “supplanted, rather than

amended or supplemented, the unsatisfactory common-law remedies.”           2007-

Ohio-6751, ¶ 18-19, citing Indus. Comm. v. Kamrath, 118 Ohio St. 1, 3-4 (1928);

Indus. Comm. v. Weigandt, 102 Ohio St. 1, 7 (1921). The Court recognized that

the General Assembly, as a matter of public policy, decided to proscribe

retaliatory discharges alone, so judicially imposing a common-law public policy

wrongful discharge claim for nonretaliatory discharges would be inappropriately

substituting its policy preference for the General Assembly’s enacted policy

decision. Id. at ¶ 23-25. This conclusion lead to the Court’s narrower holding in

paragraph 17 of its opinion wherein the Court stated:


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       * * * the constitutionally sanctioned, and legislatively created,

       compromise of employer and employee interests reflected in the

       workers’ compensation system precludes a common-law claim of

       wrongful discharge in violation of public policy when an employee

       files a workers’ compensation claim and is discharged for

       nonretaliatory reasons. (Emphasis added).

Nevertheless, after reaching this specific conclusion, the Court then stated that:

       the imposition of common-law principles of wrongful discharge into

       the workers’ compensation arena runs counter to ‘the balance of

       mutual compromise between the interests of the employer and the

       employee’ as expressed by the General Assembly within the Act.

       [And therefore,] Bickers’ remedy must be found within the workers’

       compensation statutes. Id. at ¶ 25 (emphasis added).

Immediately thereafter, and at the end of the Court’s opinion, the Court held:

       an employee who is terminated from employment while receiving

       workers’ compensation has no common-law cause of action for

       wrongful discharge in violation of the public policy underlying R.C.

       4123.90, which provides the exclusive remedy for employees

       claiming termination in violation of rights conferred by the Workers’

       Compensation Act. Id. at ¶ 26.


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This subsequent holding, which the Court adopted as its syllabus, is not limited to

nonretaliatory discharges alone.

       {¶18} While the Ohio Supreme Court, in dicta, has more recently

questioned the expansive syllabus in Bickers, the Court has not modified or

overruled it. Sutton, 2011-Ohio-2723, at ¶ 19-21, 23. The Ohio Supreme Court

made Bickers’ syllabus the broader of its two holdings, and, to the extent that there

is disharmony between the syllabus and an opinion’s text or footnotes, the syllabus

controls. S.Ct.R.Rep.Op. 1(B)(1)(2). Prior to the Ohio Supreme Court’s release of

Sutton, the Court of Appeals in several districts had interpreted Bickers’ syllabus

to eliminate common-law public policy wrongful discharge claims. Mortensen v.

Intercontinental Chem. Corp., 178 Ohio App.3d 393, 2008-Ohio-4723, ¶ 15 (1st

Dist.); Cunningham v. Steubenville Orthopedics & Sports Medicine, Inc., 175

Ohio App.3d 627, 2008-Ohio-1172, ¶ 53-54 (7th Dist.); Scalia v. Aldi, Inc., 9th

Dist. No. 25436, 2011-Ohio-6596, ¶ 10; Sidenstricker v. Miller Pavement

Maintenance, Inc., 10th Dist. No. 09AP-523, 2009-Ohio-6574, ¶ 10-13;

McDannald v. Fry & Assoc., Inc., 12th Dist. No. CA2007-08-027, 2008-Ohio-

4169, ¶ 31-32. A multitude of federal district courts in the sixth circuit have

reached this same conclusion. McDonald v. Mt. Perry Foods, Inc., No.: C2:09–

CV–0779 (S.D.Ohio 2011), citing Sharp v. Honda of Am. Mfg., No.: 2: 10–CV-

1039 (S.D.Ohio 2011), Amara v. ATK, Inc., No.: 3:08–CV–0378 (S.D.Ohio 2009),


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Helmick v. Solid Waste Auth. of Cent. Ohio, No.: 2:07–CV–912 (S.D.Ohio 2009),

Trout v. FirstEnergy Generation Corp., No.: 3:07–CV–00673 (N.D.Ohio 2008),

Compton v. Swan Super Cleaners, Inc., No.: 08–CV–002 (S.D.Ohio Apr. 29,

2008), McDermott v. Cont’l Airlines, Inc., No.: 2:06–CV–0785 (S.D.Ohio 2008);

Keyes v. Car-X Auto Service, No.: C-1-07-503 (S.D.Ohio 2009); Powell v. Honda

of America Mfg., Inc., No. 2:06-CV-979 (S.D.Ohio 2008).

       {¶19} The Court of Appeals for the Twelfth District continues to interpret

Bickers’ syllabus to eliminate common-law public policy wrongful discharge

claims. Rose v. CTL Aerospace, Inc., 12th Dist. No. CA2011-09-171, 2012-Ohio-

1596, ¶ 12-13. Similar to Arnett herein, the plaintiff in CTL argued that Bickers’

syllabus was limited to nonretaliatory discharges, citing language from Bickers

and Sutton. 2012-Ohio-1596, at ¶ 12. The Twelfth District disagreed, however,

noting that “the bulk of the [Bickers] opinion indicates the court’s belief that the

statute precludes all common law claims for wrongful discharge.” Id. at ¶ 13

(emphasis in original). The Twelfth District further concluded that “Sutton creates

a very limited exception to the at-will employment doctrine for injured employees

who suffer retaliation prior to instituting or pursuing a workers’ compensation

claim.” Id. at ¶ 16. We agree with the Twelfth District’s interpretation of Bickers

and Sutton and are not persuaded that mere dicta in Sutton overruled or otherwise

modified Bickers’ syllabus.


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       {¶20} Allowing employees to file common-law public policy wrongful

termination claims would require this Court to invade the General Assembly’s

law-making    authority and     would    completely eviscerate        the   procedural

requirements enacted in R.C. 4123.90. Bickers, 2007-Ohio-6715, at ¶ 24. See

also Sutton, 2011-Ohio-2723, at ¶ 39-56 (O’Donnell, J., Cupp, J., and Lanzinger,

J., dissenting). Since the General Assembly specifically enacted a statutory cause

of action for employees, like Arnett, alleging a termination of employment in

retaliation for pursuing workers’ compensation benefits, the General Assembly has

supplanted the common-law on that issue. Bickers, 2007-Ohio-6751, at ¶ 18-19,

citing Kamrath, 118 Ohio St. 1, 3-4; Weigandt, 102 Ohio St. 1, 7. Thus, Arnett’s

remedy is limited to that provided in R.C. 4123.90, and the trial court did not err

by dismissing the remaining claim in Arnett’s complaint which alleged a common-

law public policy wrongful discharge. Bickers, 2007-Ohio-6751, at ¶ 25.

       {¶21} Arnett’s assignment of error is, therefore, overruled.

       {¶22} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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