[Cite as Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723.] 

SUTTON, APPELLEE, v. TOMCO MACHINING, INC., APPELLANT. 

[Cite as Sutton v. Tomco Machining, Inc., 

129 Ohio St.3d 153, 2011-Ohio-2723.] 

Common-law tort claim for wrongful discharge in violation of public policy — 

R.C. 4123.90 expresses a clear public policy prohibiting retaliatory 

employment action against injured employees — Ohio recognizes a 

common-law tort claim for wrongful discharge in violation of public 

policy when an injured employee suffers retaliatory employment action 

after injury on the job but before the employee files a workers’ 

compensation claim or institutes or pursues a workers’ compensation 

proceeding — To establish causation, a plaintiff who alleges wrongful 

discharge in violation of public policy as expressed in R.C. 4123.90 must 

prove that the adverse employment action was retaliatory, which 

requires proof of a nexus between the adverse employment action and 

the potential workers’ compensation claim — The remedies available for 

wrongful discharge in violation of the public policy against retaliatory 

employment actions as expressed in R.C. 4123.90 are limited to those 

listed in R.C. 4123.90. 

(No. 2010-0670 — Submitted February 15, 2011 — Decided June 9, 2011.) 

APPEAL from the Court of Appeals for Montgomery County, No. 23416, 

186 Ohio App.3d 757, 2010-Ohio-830. 

__________________ 

SYLLABUS OF THE COURT

1. R.C. 4123.90 expresses a clear public policy prohibiting retaliatory 

employment action against injured employees. 
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2. Ohio recognizes a common-law tort claim for wrongful discharge in violation 

of public policy when an injured employee suffers retaliatory employment 

action after injury on the job but before the employee files a workers’ 

compensation claim or institutes or pursues a workers’ compensation 

proceeding. 

3. To establish causation, a plaintiff who alleges wrongful discharge in violation 

of public policy as expressed in R.C. 4123.90 must prove that the adverse 

employment action was retaliatory, which requires proof of a nexus 

between the adverse employment action and the potential workers’ 

compensation claim. 

4. The remedies available for wrongful discharge in violation of the public policy 

against retaliatory employment actions as expressed in R.C. 4123.90 are 

limited to those listed in R.C. 4123.90. 

__________________ 

O’CONNOR, C.J. 

{¶ 1} The issue presented in this appeal is whether Ohio should 

recognize a common-law tort claim for wrongful discharge in violation of public 

policy when an injured employee suffers retaliatory employment action after 

injury on the job but before the employee files a workers’ compensation claim or 

institutes, pursues, or testifies in any workers’ compensation proceeding.1 We 

answer in the affirmative and further hold that the available remedies are limited 

to those listed in R.C. 4123.90. Accordingly, we affirm the court of appeals’ 

holding that recognized the wrongful-discharge claim but modify that holding by 

recognizing that the available remedies are limited to those listed in R.C. 4123.90. 

 

1. For ease of discussion, the phrase “the employee files a workers’ compensation claim or 

institutes, pursues, or testifies in any workers’ compensation proceeding,” which is the language 

used in R.C. 4123.90, is shortened to “the employee files, institutes, or pursues a workers’ 

compensation claim.” 
January Term, 2011 

3 

I. Relevant Background 

{¶ 2} Early in the morning on April 14, 2008, DeWayne Sutton injured 

his back while disassembling a chop saw on the job at Tomco Machining, Inc. 

(“Tomco”).2 He reported the injury to Tomco’s president, Jim Tomasiak. Within 

one hour of being told of the injury, Tomasiak fired Sutton, who had been an 

employee of Tomco’s for two and one-half years. Tomasiak did not give Sutton a 

reason for the firing but did state that the firing was not because of Sutton’s work 

ethic or job performance or because Sutton had broken any work rule or company 

policy. 

{¶ 3} On July 1, 2008, Sutton sent a letter to Tomco that informed it of 

his intention to file a claim under R.C. 4123.90 alleging unlawful retaliation. On 

September 18, 2008, Sutton filed suit against Tomco and alleged that Tomco fired 

him to avoid having Sutton considered an employee when he filed for workers’ 

compensation and thereby preclude a claim and avoid paying higher workers’ 

compensation premiums. Sutton asserted two claims for relief: a statutory claim 

for unlawful retaliation under R.C. 4123.90 and a tort claim for wrongful 

discharge in violation of public policy. 

{¶ 4} Tomco moved for judgment on the pleadings, pursuant to Civ.R. 

12(C). The trial court granted the motion as to both claims. Sutton appealed. 

{¶ 5} The Second District Court of Appeals affirmed the judgment in 

part and reversed it in part. Specifically, it affirmed the judgment against Sutton 

on the statutory claim on the grounds that R.C. 4123.90 does not expressly apply 

to employees, like Sutton, who are retaliated against after they are injured but 

before they file, institute, or pursue a workers’ compensation claim. As to the 

 

2. Because this case comes to us on appeal from a judgment on the pleadings in Tomco’s favor, 

the facts are recited from Sutton’s complaint. State ex rel. Midwest Pride IV, Inc. v Pontious

(1996), 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (holding that when deciding a motion for 

judgment on the pleadings, the court must construe the material allegations in the complaint in 

favor of the nonmoving party as true). 
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public-policy claim, it reversed the judgment against Sutton, holding that the 

discharge violated public policy as expressed in R.C. 4123.90. The court of 

appeals did not address the issue of remedies. 

{¶ 6} We accepted Tomco’s discretionary appeal. Sutton v. Tomco 

Machining, Inc., 126 Ohio St.3d 1512, 2010-Ohio-3331, 930 N.E.2d 331. 

II. Analysis 

A. Exception to Employment-at-Will Doctrine 

{¶ 7} The traditional rule in Ohio is that at-will employment may be 

terminated by the employer at any time for good cause, bad cause, or no cause at 

all, and therefore, discharge of an employee does not give rise to an action for 

damages. Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 23 OBR 260, 491 

N.E.2d 1114. This is commonly known as the employment-at-will doctrine, 

which was judicially created and thus may be judicially abolished. Kulch v. 

Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 161, 677 N.E.2d 308. 

{¶ 8} In 1990, this court recognized an exception to the employment-atwill doctrine that applies when an at-will employee is discharged or disciplined 

for reasons that contravene clear public policy expressed by the legislature in its 

statutes. Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio 

St.3d 228, 551 N.E.2d 981, paragraph one of the syllabus; Painter v. Graley

(1994), 70 Ohio St.3d 377, 639 N.E.2d 51, paragraph three of the syllabus (“Clear 

public policy” sufficient to justify an exception to the employment-at-will 

doctrine may be found in statutory enactments, the Constitutions of Ohio and the 

United States, administrative rules and regulations, and the common law). The 

basis of this exception is that when the General Assembly enacts laws that are 

constitutional, the courts may not contravene the legislature’s expression of public 

policy. Painter at 385. It is our responsibility to determine when public-policy 

exceptions must be recognized and to set the boundaries of such exceptions. 

Kulch at 161. In this case, the dissent mischaracterizes our opinion as 
January Term, 2011 

5 

establishing public policy in Ohio. To the contrary, we simply recognize that the 

judicial doctrine of employment at will must yield when it contravenes the public 

policy as established by the General Assembly in R.C. 4123.90. 

{¶ 9} A cause of action for wrongful discharge in violation of public 

policy sounds in tort. Greeley at paragraph three of the syllabus. A plaintiff must 

prove the following elements to prevail on such a claim: (1) a clear public policy 

exists and is manifested in a state or federal constitution, in statute or 

administrative regulation, or in the common law (the clarity element), (2) 

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). Collins v. 

Rizkana (1995), 73 Ohio St.3d 65, 69-70, 652 N.E.2d 653. The clarity and 

jeopardy elements involve questions of law; the causation and overridingjustification elements involve questions of fact. Id. at 70. We will now address 

these elements as they apply to Sutton’s claim. 

1. Causation and Overriding-Justification Elements Are Not Before Us 

{¶ 10} This case is before us on an appeal from a judgment on the 

pleadings, which is a mechanism that is used to resolve questions of law. State ex 

rel. Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d 565, 570, 664 

N.E.2d 931. Consequently, the factual elements, i.e. causation and overriding 

justification, are not before us. Rather, in order to prevail on his claim, Sutton 

must prove them on remand. To establish the causation element, Sutton must 

prove that his discharge was retaliatory. Because a discharge could be for reasons 

other than those related to workers’ compensation, such as a reasonable suspicion 

that the injury was not job related, a disregard by the employee for the employer’s 

safety rules, or an immediate need for a replacement employee, no presumption of 
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retaliation arises from the fact that an employee is discharged soon after an injury. 

Rather, the retaliatory nature of the discharge and its nexus with workers’ 

compensation must be established by a preponderance of the evidence. To 

establish the overriding-justification element, Sutton must prove that Tomco 

lacked an overriding business justification for firing him. Accordingly, we 

consider only the clarity and jeopardy elements. 

2. The Clarity Element 

{¶ 11} Under the clarity analysis, we must determine whether there exists 

in Ohio a public policy against retaliatory employment actions like the one 

alleged by Sutton. “Clear public policy” sufficient to justify an exception to the 

employment-at-will doctrine may be expressed by the General Assembly in 

statutory enactments, as well as in other sources, such as the Ohio and United 

States constitutions, administrative rules and regulations, and the common law. 

Painter, 70 Ohio St.3d 377, 639 N.E.2d 51, paragraph three of the syllabus. In 

this case, Sutton identifies R.C. 4123.90 as the source of the public policy; 

therefore, the focus of our analysis is R.C. 4123.90 and the General Assembly’s 

intention in enacting it. 

{¶ 12} In determining legislative intent, we must first look to the statutory 

language and the purpose to be accomplished. See Rice v. CertainTeed Corp. 

(1999), 84 Ohio St.3d 417, 419, 704 N.E.2d 1217, citing State ex rel. Richard v. 

Bd. of Trustees of Police & Firemen’s Disability & Pension Fund (1994), 69 Ohio 

St.3d 409, 411, 632 N.E.2d 1292. 

{¶ 13} R.C. 4123.90 provides: “No employer shall discharge, demote, 

reassign, or take any punitive action against any employee because the employee 

filed a claim or instituted, pursued or testified in any proceedings under the 

workers’ compensation act for an injury or occupational disease which occurred 

in the course of and arising out of his employment with that employer.” 
January Term, 2011 

7 

{¶ 14} R.C. 4123.90 does not expressly prohibit retaliation against injured 

employees who have not yet filed, instituted, or pursued a workers’ compensation 

claim. But it does expressly prohibit retaliation against injured workers who have 

filed, instituted, or pursued a workers’ compensation claim. Essentially, a gap 

exists in the language of the statute for conduct that occurs between the time 

immediately following injury and the time in which a claim is filed, instituted, or 

pursued. Sutton’s firing occurred in that gap. The parties disagree as to whether 

the public policy underlying R.C. 4123.90 justifies the creation of an exception to 

the employment-at-will doctrine to protect such employees. 

{¶ 15} Although we have never before directly addressed whether the 

public policy underlying R.C. 4123.90 protects such employees, we have 

addressed whether the statute itself protects a similarly situated employee. In 

Bryant v. Dayton Casket Co. (1982), 69 Ohio St.2d 367, 23 O.O.3d 341, 433 

N.E.2d 142, we addressed whether an employee’s expression of an intent to 

pursue a workers’ compensation claim was sufficient to satisfy R.C. 4123.90’s 

requirement that an employee “institute” or “pursue” a proceeding and whether 

the employee was therefore protected by the statute against retaliation. Id. at 370. 

The relevant facts are that the employee, Bryant, cut his finger with a saw during 

his second day of employment with Dayton Casket Company, informed someone 

within the company of the injury, and was thereafter fired. Id. at 368. At the time 

of his dismissal, no workers’ compensation proceedings had actually been 

pursued or instituted. Id. at 369. The employee sued and alleged that his firing 

was in retaliation for his pursuit of a workers’ compensation claim. Id. at 368. 

He argued that his informing someone within the company of the injury was 

sufficient to satisfy the R.C. 4123.90 requirement that he pursue a claim. Id. at 

370. We held that a mere expression of an intention to pursue a claim is not 

“pursuit” of a claim and, therefore, Bryant was not protected from retaliatory 

firing under the statute. Id. at 371. 
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{¶ 16} The concurring opinion cautioned that the court was not 

interpreting the statute to mean that the actual filing of a claim was the only 

means by which a workers’ compensation proceeding could be instituted or 

pursued. Id. at 372, 23 O.O.3d 341, 433 N.E.2d 142 (W. Brown, J., concurring). 

“If such a requirement was mandated, an employer could [preemptively] fire the 

claimant and thus avoid the consequences of R.C. 4123.90.” Id. The concurrence 

admonished employers not to read the majority opinion as endorsing “a footrace, 

the winner being determined by what event occurs first—the firing of the 

employee or the filing of the claim with the bureau.” Id. at 372-373. Such a 

reading of the statute, the concurring justice stated, would “frustrate the 

legislative intent as evinced in R.C. 4123.90.” Id. at 372. Shortly thereafter, in 

Roseborough v. N.L. Industries (1984), 10 Ohio St.3d 142, 143, 10 OBR 478, 462 

N.E.2d 384, this court ratified the caution expressed by the concurring opinion in 

Bryant. 

{¶ 17} Like Bryant, Sutton did not file, institute, or pursue a workers’ 

compensation claim before he was fired. Even so, Bryant is not dispositive here, 

because, as explained below, Bryant was decided before this court recognized the 

public-policy exception to the employment-at-will doctrine. 

{¶ 18} Eight years after we decided Bryant, we recognized the tort of 

wrongful discharge in violation of public policy. Greeley, 49 Ohio St.3d 228, 551 

N.E.2d 981, at paragraph three of the syllabus. In doing so, we also held that 

“[h]enceforth, the right of employers to terminate employment at will for ‘any 

cause’ no longer includes the discharge of an employee where the discharge is in 

violation of a statute and thereby contravenes public policy.” Id. at paragraph two 

of the syllabus. Therefore, Greeley and its progeny govern resolution of Sutton’s 

claim for wrongful discharge in violation of public policy. Bryant governs only 

statutory claims, and Sutton’s statutory claim is not before us. 
January Term, 2011 

9 

{¶ 19} Tomco asserts that Bickers v. W. & S. Life Ins. Co., 116 Ohio St.3d 

351, 2007-Ohio-6751, 879 N.E.2d 201, controls here. But like Bryant, Bickers is 

not dispositive. In Bickers, we held that an employee who was receiving 

temporary total disability benefits did not have a common-law wrongfuldischarge claim against her employer for a nonretaliatory discharge. Id. at the 

syllabus and ¶ 17. Bickers was injured on the job and, as a result, was receiving 

temporary total disability payments. Id. at ¶ 3. Following the injury, Bickers 

experienced periods of inability to work. Id. Eight years after the injury, the 

employer fired her. Id. Thereafter, she filed suit against the employer and 

claimed that while she was receiving temporary total disability benefits, she was 

fired, and therefore, she was wrongfully discharged in violation of the public 

policy underlying R.C. 4123.90. Id. at ¶ 4. 

{¶ 20} In determining whether Bickers had a cause of action for wrongful 

discharge, we reviewed the origin and nature of the workers’ compensation 

system. Id. at ¶ 18. We explained that as the arbiter of public policy, the General 

Assembly had decided when to require an employer to hold an injured worker’s 

position open. Id. at ¶ 20-24. In making its decision, the General Assembly 

balanced the competing interests of employers and employees. Id. at ¶ 23. 

Ultimately, “the General Assembly chose to proscribe retaliatory discharges

only.” (Emphasis added.) Id. Accordingly, we deferred to the General Assembly 

when we held that Bickers did not have a wrongful-discharge claim for a 

nonretaliatory firing. Id.

{¶ 21} Tomco argues that Bickers stands for the proposition that no 

common-law action for wrongful discharge in violation of R.C. 4123.90 exists for 

nonretaliatory or retaliatory discharges. Tomco’s argument thus ignores the 

substance of Bickers and strictly applies the broad language of the syllabus 

outside the context of that case. That flaw is fatal to Tomco’s argument. 
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{¶ 22} We find that the General Assembly did not intend to leave a gap in 

protection during which time employers are permitted to retaliate against 

employees who might pursue workers’ compensation benefits. The alternative 

interpretation—that the legislature intentionally left the gap—is at odds with the 

basic purpose of the antiretaliation provision, which is “to enable employees to 

freely exercise their rights without fear of retribution from their employers.” 

Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d 141, 2003-Ohio-5357, 

797 N.E.2d 61, ¶ 43. The General Assembly certainly did not intend to create the 

footrace cautioned against in Roseborough, 10 Ohio St.3d at 143, 10 OBR 478, 

462 N.E.2d 384, which would effectively authorize retaliatory employment action 

and render any purported protection under the antiretaliation provision wholly 

illusory. Therefore, it is not the public policy of Ohio to permit retaliatory 

employment action against injured employees in the time between injury and 

filing, instituting, or pursuing workers’ compensation claims. Rather, R.C. 

4123.90 expresses a clear public policy prohibiting retaliatory employment action 

against injured employees, including injured employees who have not filed, 

instituted, or pursued a workers’ compensation claim. 

{¶ 23} The dissent misapplies Bickers, 116 Ohio St.3d 351, 2007-Ohio6751, 879 N.E.2d 201. The key distinction between Bickers and this case is the 

nature of the alleged discharge: nonretaliatory versus retaliatory. The dissent 

attempts to diminish the comparative timing of the firings. When Bickers was 

fired, she had already successfully sought workers’ compensation. Therefore, 

Bickers was protected by the statute from retaliatory firing. In Bickers, we 

determined whether the General Assembly also intended to proscribe the firing of 

an injured employee for reasons not related to the workers’ compensation claim. 

We recognized that the General Assembly intended to proscribe only retaliatory

firings. Id. at ¶ 25, quoting Blankenship v. Cincinnati Milacron Chem., Inc.

(1982), 69 Ohio St.2d 608, 614, 23 O.O.3d 504, 433 N.E.2d 572. 
January Term, 2011 

11 

{¶ 24} Likewise, in this case, we recognize that the General Assembly 

intended to proscribe retaliatory firings. We are called upon, however, to 

determine what, if anything, the General Assembly intended in leaving the gap in 

protection against retaliatory firing immediately following injury but before the 

employee files a workers’ compensation claim or institutes or pursues a workers’ 

compensation proceeding. Bickers did not present this issue. If we were to 

decline to address it now, we would leave Sutton and others similarly situated 

unprotected from retaliatory firings, which is plainly not the intent of the General 

Assembly. 

3. The Jeopardy Element 

{¶ 25} Under the jeopardy analysis, we must determine whether a 

retaliatory dismissal of an employee who is injured on the job but who has not yet 

filed, instituted, or pursued a workers’ compensation claim jeopardizes the public 

policy against retaliatory employment actions as expressed in R.C. 4123.90. See 

Collins, 73 Ohio St.3d at 70, 652 N.E.2d 653. In cases where the right and 

remedy are part of the same statute that is the sole source of the public policy 

opposing the discharge, the test for determining the jeopardy element is whether 

the remedy provisions adequately protect society’s interest by discouraging the 

wrongful conduct. Leininger v. Pioneer Natl. Latex, 115 Ohio St.3d 311, 2007-

Ohio-4921, 875 N.E.2d 36, at ¶ 26. Therefore, the test in this case is whether 

R.C. 4123.90 provides adequate remedies to protect the public interest against 

retaliatory firings. 

{¶ 26} The remedies portion of R.C. 4123.90 provides: “Any such 

employee may file an action in the common pleas court of the county of such 

employment in which the relief which may be granted shall be limited to 

reinstatement with back pay, if the action is based upon discharge, or an award for 

wages lost if based upon demotion, reassignment, or punitive action taken, offset 

by earnings subsequent to discharge, demotion, reassignment, or punitive action 
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taken, and payments received pursuant to section 4123.56 and Chapter 4141. of 

the Revised Code plus reasonable attorney fees.” (Emphasis added.) 

{¶ 27} The phrase “[a]ny such employee” is a limitation on the class of 

people that can avail itself of the remedies set out in R.C. 4123.90. By its express 

terms, R.C. 4123.90 does not apply to Sutton or others who experience retaliatory 

employment action after being injured but before they file, institute, or pursue a 

workers’ compensation claim. Consequently, a claim for retaliatory discharge in 

those circumstances is not cognizable under the statute. It is precisely this reason 

that Sutton’s statutory claim failed. Therefore, R.C. 4123.90 plainly does nothing 

to discourage the wrongful conduct that Sutton alleges. Accordingly, we hold that 

R.C. 4123.90 does not provide adequate remedies and thus the jeopardy element 

is satisfied. 

{¶ 28} Because the clarity and jeopardy elements are satisfied, Ohio 

recognizes a common-law tort claim for wrongful discharge in violation of public 

policy when an injured employee suffers retaliatory employment action after 

injury on the job but before the employee files a workers’ compensation claim or 

institutes or pursues a workers’ compensation proceeding. 

B. Remedy 

{¶ 29} We next determine what remedies are available to Sutton if he 

proves retaliatory discharge. A review of our decision in Collins is helpful. 

{¶ 30} In Collins, we recognized a common-law tort for wrongful 

discharge in violation of the public policy against sexual harassment. Id. at the 

syllabus. In that case, Collins had been an employee of a veterinarian for a 

number of years. Id. at 67. She alleged that the veterinarian sexually harassed her 

throughout her employment and that when she finally disclosed the harassment to 

a co-worker, the veterinarian retaliated against her by, among other things, 

reducing her pay. Id. at 66. Those adverse actions eventually forced her to quit. 

Id. In response to Collins’s complaint for wrongful discharge, the veterinarian 
January Term, 2011 

13 

moved for summary judgment, which was entered in his favor. Id. at 67. The 

trial court reasoned that R.C. 4112.02, which prohibits sex-based discrimination 

against employees, did not apply to the veterinarian, because he did not satisfy the 

statutory definition of “employer.” Id. 

{¶ 31} On appeal, this court recognized the clear public policy against 

sexual abuse and sexual harassment expressed in R.C. 2907.06 (prohibiting sexual 

imposition) and R.C. Chapter 4112 (prohibiting sex-based discrimination). Id. at 

70 and 72, 652 N.E.2d 653. R.C. 2907.06, as a criminal statute, does not provide 

civil remedies. And R.C. Chapter 4112’s remedies were unavailable to Collins 

because the term “employer” is defined under that chapter as “any person 

employing four or more persons within the state,” R.C. 4112.01(A)(2), and the 

veterinarian employed fewer than four people, Collins at 74. Therefore, we held 

that the sources of the public policy did not provide adequate remedies to protect 

the public interest against sexual harassment in the workplace, because they did 

not discourage sexually motivated harassment of employees of small businesses. 

Id. Therefore, we held that the jeopardy element was also satisfied. Id. 

{¶ 32} We further held that the full spectrum of common-law remedies 

was available to plaintiffs like Collins because the legislature did not intend to 

limit the remedies to those provided in R.C. Chapter 4112. Collins, 73 Ohio St.3d 

at 73-74, N.E.2d 653. In considering the issue, we relied on Helmick v. 

Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, 543 N.E.2d 1212, in 

which we held that “R.C. Chapter 4112 was intended to add protections for 

victims of sexual harassment rather than reduce the protections and remedies for 

such conduct.” Id. at paragraph one of the syllabus. In other words, R.C. Chapter 

4112 was intended to supplement, not supplant, the common-law protections and 

remedies. Collins at 74. Therefore, “R.C. Chapter 4112 does not operate to 

preclude [the wrongful-discharge] claim, [so] there is no need to consider whether 

the remedies contained in R.C. Chapter 4112 should serve as a basis to reject [the] 
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claim.” Id. Accordingly, we recognized the wrongful-discharge claim and held 

that the full panoply of common-law remedies was available. Id. 

{¶ 33} In contrast, the Workers’ Compensation Act plainly provides 

limited, exclusive remedies. Before the enactment of the Workers’ Compensation 

Act, common-law tort principles governed recovery for work-related injuries. 

Bickers, 116 Ohio St.3d 351, 2007-Ohio-6751, 879 N.E.2d 201, at ¶ 18, citing 

Fulton, Ohio Workers’ Compensation Law (2d Ed.1998) 3, Section 1.2. Ohioans 

adopted the constitutional provision that authorized the General Assembly to 

establish the workers’ compensation program. Section 35, Article II, Ohio 

Constitution. In 1913, the General Assembly exercised the authority conferred 

therein and passed the Workers’ Compensation Act. Bickers at ¶ 19. “This 

statutory framework supplanted, rather than amended or supplemented, the 

unsatisfactory common-law remedies.” Id. at ¶ 19, citing Indus. Comm. v 

Kamrath (1928), 118 Ohio St. 1, 3-4, 160 N.E. 470, and Indus. Comm. v. 

Weigandt (1921), 102 Ohio St. 1, 7, 130 N.E. 38. 

{¶ 34} The act is premised on the recognition that industrial accidents are 

inevitable and that employees injured in the course of their employment ought to 

be able to recover certain damages (i.e., benefits). Coolidge, 100 Ohio St.3d 141, 

2003-Ohio-5357, 797 N.E.2d 61, ¶ 40. The act shifts the burden of the 

consequences of workplace injuries away from the individual employee to the 

employer, but ultimately, to society at large. Id. “[T]he Act ‘operates as a 

balance of mutual compromise between the interests of the employer and the 

employee whereby employees relinquish their common law remedy and accept 

lower benefit levels coupled with the greater assurance of recovery and employers 

give up their common law defenses and are protected from unlimited liability.’ ” 

Bickers at ¶ 19, quoting Blankenship, 69 Ohio St.2d at 614, 23 O.O.3d 504, 433 

N.E.2d 572. 
January Term, 2011 

15 

{¶ 35} The compromise established by the General Assembly must 

govern the relief available to employees, like Sutton, who suffer retaliatory 

employment action after an injury and before they have filed, instituted, or 

pursued a workers’ compensation claim, just as it governs the relief for employees 

who suffer retaliatory employment action after they have filed, instituted, or 

pursued a workers’ compensation claim. Accordingly, we hold that Ohio’s public 

policy as established by the legislature is to limit remedies for retaliatory 

employment actions against injured employees to those listed in R.C. 4123.90. 

{¶ 36} To hold otherwise and allow pursuit of common-law remedies for 

wrongful discharges in violation of this public policy would undermine the entire 

workers’ compensation scheme, purpose, and operation. It would be nonsensical 

to acknowledge a tort in violation of public policy but fail to tailor the remedies in 

conformance with that public policy. We therefore hold that the remedies 

available for wrongful discharge in violation of the public policy against 

retaliatory employment actions as expressed in R.C. 4123.90 are limited to those 

listed in R.C. 4123.90. 

III. Conclusion 

{¶ 37} For these reasons, we recognize a common-law tort claim for 

wrongful discharge in violation of public policy when an injured employee suffers 

retaliatory employment action after an injury but before he or she files, institutes, 

or pursues a workers’ compensation claim. To establish causation, a plaintiff who 

alleges wrongful discharge in violation of public policy as expressed in R.C. 

4123.90 must prove that the adverse employment action was retaliatory, which 

requires proof of a nexus between the adverse employment action and the 

potential workers’ compensation claim. We further hold that the remedies 

available for the tort are limited to those provided by R.C. 4123.90. 
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{¶ 38} Accordingly, we affirm the judgment of the court of appeals and 

remand the cause for determination of the fact-based elements of the claim, i.e., 

the causation and overriding-justification elements. 

Judgment affirmed 

and cause remanded. 

 PFEIFER, LUNDBERG STRATTON, and MCGEE BROWN, JJ., concur. 

 O’DONNELL, LANZINGER, and CUPP, JJ., dissent. 

__________________ 

O’DONNELL, J., dissenting. 

{¶ 39} The majority opinion establishes policy for Ohio by recognizing a 

common-law tort claim for wrongful discharge in violation of public policy when 

an injured employee suffers a retaliatory employment action after injury but 

before filing, instituting, or pursuing a workers’ compensation claim. 

{¶ 40} Recognizing the legislative branch of government as the policymaking branch, I would assert that R.C. 4123.90 provides no remedy for Sutton 

and would encourage the General Assembly to resolve this situation if it intended 

the basis of Sutton’s claim to be part of Ohio’s public policy. In accordance with 

Bickers v. W. & S. Life Ins. Co., 116 Ohio St.3d 351, 2007-Ohio-6751, 879 

N.E.2d 201, the statute provides the exclusive remedy for claims in this area. As 

Justice Cupp wrote in Bickers, “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.” Id. at ¶ 25, 

quoting Blankenship v. Cincinnati Milacron Chems., Inc. (1982), 69 Ohio St.2d 

608, 614, 23 O.O.3d 504, 433 N.E.2d 572. 

{¶ 41} To the contrary, the majority has today expanded the public policy 

behind the provisions of R.C. 4123.90 to apply to those persons discharged before 

filing, instituting, or pursuing a workers’ compensation claim. This allowance is 
January Term, 2011 

17 

a legislative prerogative, and in my view, we should follow the law as written and 

defer to the General Assembly, instead of stretching the extent of protection to fit 

situations not addressed by the statute. 

{¶ 42} Accordingly, I respectfully dissent and would reverse the judgment 

of the court of appeals. 

__________________ 

 CUPP, J., dissenting. 

{¶ 43} Ohio’s workers’ compensation system, enacted pursuant to state 

constitutional authority, is a wholly statutory system. Section 35, Article II, Ohio 

Constitution; R.C. Chapter 4123; Kaminski v. Metal & Wire Prods. Co., 125 Ohio 

St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 74, 75; Bickers v. W. & S. Life 

Ins. Co., 116 Ohio St.3d 351, 2007-Ohio-6751, 879 N.E.2d 201, ¶ 19; Indus. 

Comm. v. Kamrath (1928), 118 Ohio St.1, 3-4, 160 N.E. 470. 

{¶ 44} The court today improperly injects common-law principles into 

this wholly statutory system, and it exceeds its authority by doing so. Moreover, 

the public policy that the court seeks to vindicate by inserting the tort of wrongful 

discharge into the law of workers’ compensation is inapposite to the statute upon 

which the court relies to derive that policy. 

{¶ 45} The majority opinion states that R.C. 4123.90 expresses a clear 

public policy against employer retaliation against injured employees. And that 

statement is true. There is a clear public policy against employers retaliating 

against injured employees who pursue benefits under the workers’ compensation 

system. But the majority then uses this platform to make a gigantic leap of logic 

to conclude that because the statute does not also prohibit employer conduct that 

allegedly seeks to prevent an employee from applying for workers’ compensation 

benefits, the statute, ipso facto, must have an unintended gap, which the court, in 

its wisdom, must fill. 
SUPREME COURT OF OHIO

18 

{¶ 46} Contrary to the majority’s unsupported conclusion, there is no gap 

in the statute. Rather, it is clear that the legislature, whether wisely or not, chose 

not to proscribe employer conduct that was short of retaliation. R.C. 4123.90, as 

relevant here, proscribes only employer conduct that retaliates against an 

employee’s pursuit of a workers’ compensation claim. For an employer’s conduct 

to be retaliatory, the statute requires that the employee must first have sought to 

access the workers’ compensation system by having “filed a claim or instituted, 

pursued or testified in any proceedings.” R.C. 4123.90. Then, the employer must 

have responded by having “discharge[d], demote[d], reassign[ed], or take[n] any 

punitive action against [the] employee because the employee filed a claim or 

instituted, pursued or testified in any proceedings under the workers’ 

compensation act.” R.C. 4123.90. 

{¶ 47} The conduct that the statute seeks to prohibit is an employer’s 

retaliating against an employee after the employee takes some action in pursuit of 

a workers’ compensation claim. This is the entire essence of the statutory 

proscription. Because the statute does not also proscribe employer conduct that 

may tend to discourage or prevent the employee from pursuing a claim in the first 

instance, it is clear that the legislature chose not to include such conduct. If the 

legislature had so intended, it would have been a simple matter for it to include 

language proscribing such conduct. 

{¶ 48} The legislature, for example, could have added a few more words 

to the text of R.C. 4123.90, such as the following (proposed words in italics): 

{¶ 49} "No employer shall discharge, demote, reassign, or take any 

punitive action against any employee because the employee filed a claim or 

instituted, pursued or testified in any proceedings under the workers' 

compensation act for an injury or occupational disease which occurred in the 

course of and arising out of his employment with that employer, or take any such 
January Term, 2011 

19 

action in order to prevent or discourage any employee from filing a claim or 

instituting, pursuing, or testifying in any such proceedings." 

{¶ 50} It may be good public policy to include an employer’s preemptive 

conduct within the statutory proscription, or there may be adverse consequences 

to such a policy that are not apparent on its face. This court has insufficient 

information available to it to make such a far-reaching policy choice. In any case, 

the legislature did not include such wording, which makes it clear that that the 

legislature intended not to regulate in this area beyond the conduct proscribed in 

R.C. 4123.90. 

{¶ 51} Even if there were a gap that was unintended, and even if it were 

appropriate for this court to attempt to fill that gap, the majority’s chosen remedy 

is incongruous with the policy attempted to be vindicated. The majority injects a 

common-law tort action for what it terms “retaliation.” In reality, it is not 

“retaliation” that is being alleged by Sutton in this case. “Retaliation” involves 

some adverse action taken to punish some conduct already undertaken. The 

gravamen of the complaint here is that the employer took action to prevent or 

discourage the employee from pursuing a workers’ compensation claim in the 

first place—not to retaliate for having done so. It is, therefore, unclear how the 

court’s remedy for employer “retaliation” can be utilized to any proper effect 

when the conduct of the employee against which the employer is alleged to have 

retaliated had not yet occurred. Under the allegations in this case, Sutton had not 

yet taken any steps toward a workers’ compensation claim—not even the small 

step of stating to the employer that he intended to do so. 

{¶ 52} The motive alleged by Sutton for Tomco’s firing him was to have 

Sutton removed from Tomco’s roster before he applied for workers’ 

compensation benefits. On the record before us, it is not clear how the 

termination of Sutton’s employment would benefit Tomco. Sutton asserts that 

Tomco’s purpose in discharging him was to “preclude [his] Workers 
SUPREME COURT OF OHIO

20 

Compensation injury claim and higher Workers Compensation premiums.” But 

this claim lacks any basis in reality because whatever workers’ compensation 

benefits may be awarded to a claimant who was employed when he was injured 

on the job will either (1) become a part of the employer’s experience rating for 

calculation of its future workers’ compensation premium, if the employer is a 

state-fund employer, or (2) be paid directly by the employer, if the employer is a 

self-insuring employer. This result obtains whether the employee remains 

employed by the employer at the time of filing a claim or not. Consequently, this 

motive alleged by Sutton as Tomco’s reason for his termination appears to be 

nonsensical. 

{¶ 53} Furthermore, the termination of an employee simply because the 

employee is injured on the job will not have the effect of discouraging the 

employee from filing for workers’ compensation benefits. Instead, it is almost 

certain to have the opposite effect: it will strongly motivate the employee to file a 

claim. 

{¶ 54} Finally, this matter was decided on a Civ.R. 12(C) motion for 

judgment on the pleadings, so there is not even an evidentiary record upon which 

this court may reliably base its leap into the unknown. 

{¶ 55} In summary, I express concern because the court today injects 

common-law principles into a wholly statutory workers’ compensation system, 

finds a gap in the existing statute where none exists, and institutes a remedy 

incongruous with the wrongful conduct alleged. 

{¶ 56} Although the court has made a significant effort to narrow the 

scope of its decision expanding the tort of wrongful termination into the workers' 

compensation arena, I must respectfully dissent because I believe that the decision 

by the majority, although well intentioned, rests on foundations that are seriously 

flawed. 

LANZINGER, J., concurs in the foregoing opinion. 
January Term, 2011 

21 

__________________ 

 Jeffrey M. Silverstein & Associates, Jeffrey M. Silverstein, and Jason P. 

Matthews, for appellee. 

J. Hollingsworth & Associates, L.L.C., and Jonathan Hollingsworth, for 

appellant. 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Barton Bixenstine, and 

Josephine S. Noble, urging reversal for amicus curiae Ohio Management Lawyers 

Association. 

 The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro, 

urging affirmance for amicus curiae Ohio Employment Lawyers Association. 

 Giorgianni Law, L.L.C., and Paul Giorgianni, urging affirmance for 

amicus curiae Ohio Association for Justice. 

______________________