I respectfully dissent from the decision of my colleagues because I believe that the trial court did not apply the appropriate standard in reviewing defendant's motion for summary judgment and improperly weighed the evidence in this case. I would hold that genuine issues of material fact exist regarding plaintiff's implied-contract claim and her public-policy claim. *Page 670
The standard for summary judgment bears repeating in this case. Summary judgment pursuant to Civ.R. 56(C) may be granted only when no genuine issues of material fact remain to be litigated, the moving party is entitled to judgment as a matter of law, and it appears from the evidence that reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317,327, 4 O.O.3d 466, 471-472, 364 N.E.2d 267, 274. InDresher v. Burt (1996), 75 Ohio St. 3d 280, 296, 662 N.E.2d 264,276, the Ohio Supreme Court clarified the burden of the moving party:
"[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim. The `portions of the record' to which we refer are those evidentiary materials listed in Civ.R. 56(C), such as the pleadings, depositions, answers to interrogatories, etc., that have been filed in the case." (Emphasis omitted.)
In reviewing a motion for summary judgment, the court must construe the evidence and make all inferences in favor of the nonmoving party. See Temple, 50 Ohio St.2d at 327, 4 O.O.3d at 471-472, 364 N.E.2d at 274.
Plaintiff claims that defendant violated an implied contract between them when it terminated her employment. The Ohio Supreme Court has had occasion to explain the parameters of an implied-contract claim of employment and wrongful discharge.
In Wright v. Honda of Am. Mfg., Inc. (1995), 73 Ohio St. 3d 571,574-575, 653 N.E.2d 381, 384, the Ohio Supreme Court stated:
"[I]n order to overcome a summary judgment motion and to raise a factual issue as to whether an employment-at-will agreement has been altered by an implied agreement, the trier of fact can consider, in addition to the facts and circumstances set forth inMers v. Dispatch Printing Co., supra, such evidence, which includes, but is not limited to, that information contained in employee handbooks, oral representations made by supervisory personnel that employees have been promised job security in exchange for good performance, and written assurances reflecting company policy."
The court in Mers held that to ascertain the explicit and implicit terms concerning discharge, the trier of fact may consider "the character of the employment, custom, the course of dealing between the parties, company policy, or any other fact which may illuminate the question * * *." Mers, supra, paragraph two of the syllabus. *Page 671
The Honda court held that an array of evidence supported the plaintiff's claim that her employment-at-will agreement had been altered. Statements made at employee orientation, language in the employee handbook, progress reports, promotion letters, and the company's course of dealing with the plaintiff all provided evidence "to create a fact question as to whether Honda, through its policies, past practices, and representations altered the at-will nature of the employment agreement by creating an expectation of continued employment." Honda at 577,653 N.E.2d at 385. Particularly relevant to this case is the court's recognition that even if the company handbook was not "in and of [itself] a contract of employment, [it is] nevertheless evidence of the employment contract." Id. at 575, 653 N.E.2d at 384.
Plaintiff here presented evidence that the past practice of the hospital, when dealing with performance problems, was to follow the terms of the handbook and provide management employees a one-hundred-twenty-day period in which to improve their performance. Although Seim testified that he thought that the procedure was simply one option, plaintiff testified that she had been told that the handbook procedures were mandatory and Seim admitted that the department head before plaintiff had been given the one-hundred-twenty-day review before she was terminated for poor performance.
The course of dealing between the parties also demonstrated that the employment-at-will nature of plaintiff's employment was altered. There is no dispute that Seim repeatedly assured plaintiff that she was not going to be fired and that she would be given an opportunity to resolve the problems raised by the employee complaints. Thus, I disagree with the majority's dismissal of plaintiff's claims on the ground that "no contractual intent existed between the parties to modify Hill's at-will employment." As stated in Wright v. Honda, even if the handbook is not itself a contract, it is nevertheless evidence of the terms of Hill's employment. See Honda, supra.
The provisions of the hospital handbook, the hospital's past practice, and the hospital's course of dealing with plaintiff combine to create a genuine issue of fact as to whether the at-will nature of plaintiff's employment was altered. Admittedly, the hospital did not provide the one-hundred-twenty-day review period, and the reasons stated for plaintiff's termination are the subject of dispute. I would hold that summary judgment was improperly, granted on plaintiff's implied contract claim.
I also believe that plaintiff's public-policy claim should survive summary judgment. The Supreme Court of Ohio held inGreeley v. Miami Valley Maintenance Contractors that the right of an employer to terminate an employee for any reason or no reason does not include the termination of an employee for a reason that violates Ohio public policy. Greeley v. Miami Valley Maintenance *Page 672 Contrs., Inc. (1990), 49 Ohio St. 3d 228, 551 N.E.2d 981, paragraph two of the syllabus. See, also, Painter v. Graley (1994), 70 Ohio St. 3d 377, 639 N.E.2d 51, paragraphs two and three of the syllabus. Public policy can be found in state statutes, the federal and state constitutions, administrative rules and regulations, and common law. Painter, supra, at paragraph three of the syllabus.
In Painter v. Graley, the court set out the recommended analysis of a plaintiff's claim for termination in violation of public policy:
"In reviewing future cases, Ohio courts may find useful the analysis of Villanova Law Professor H. Perritt, who, based on review of cases throughout the country, has described the elements of the tort as follows:
"`1. That [a] clear public policy existed and was manifested 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).
"`4. The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).'" (Emphasis omitted.) See Painter,70 Ohio St.3d at 384, 639 N.E.2d at 57, fn. 8. See, also, Collins v. Rizkana (1995), 73 Ohio St. 3d 65, 652 N.E.2d 653; Kulch v. StructuralFibers, Inc. (1997), 78 Ohio St. 3d 134, 677 N.E.2d 308; Chapmanv. Adia Serv., Inc. (1997), 116 Ohio App. 3d 534, 688 N.E.2d 604.
The clarity and jeopardy elements are questions of law to be determined by the court, while the causation and overriding-justification elements are questions of fact for the trier of fact. Collins, 73 Ohio St.3d at 70, 652 N.E.2d at 658;Kulch, 78 Ohio St.3d at 151, 677 N.E.2d at 321; Chapman,116 Ohio App.3d at 542, 688 N.E.2d at 609. In the context of a summary judgment motion, the court considers only the first two factors.Id.
This court has already recognized a cause of action for wrongful termination in violation of public policy based on an employee's claim that she was terminated for consulting an attorney about a potential lawsuit against a customer of her employer's, even though the employee's claim was adverse to her employer's interest. See Chapman, supra. The sources of public policy identified by the court as supporting the right to consult an attorney included Section 16, Article I of the Ohio Constitution: "All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have a remedy by due course of law * * *." See id. This court also emphasized that consulting an attorney was the first step in gaining access to the courts and held that *Page 673 terminating an employee for consulting an attorney could interfere with an individual's attempt to gain recourse for injuries through the court.
Other Ohio laws protect an employee's right to bring claims against his or her employer without fear of retaliation or termination. Ohio law prohibits an employer from terminating an employee for pursuing a workers' compensation claim, R.C.4123.90, for suing for discrimination based on race, sex, national origin, and other factors, R.C. 4112.02(I), or for bringing a lawsuit to compel compliance with Ohio's minimum-wage laws, R.C. 4111.13. I would hold that Ohio has a clear public policy in favor of free access to the courts for redress of injuries, including actions by employees against their own employers.
As to the jeopardy element, I would hold also that termination of an employee for seeking recourse through the courts, a right guaranteed by the Ohio Constitution, would be compromised or jeopardized if an employer were allowed to discharge an employee for bringing a good-faith claim. An employee would otherwise be forced to choose between seeking access to the courts and continuing his employment. The courts in Chapman and Kulch both rejected such an outcome. See Chapman at 543, 688 N.E.2d at 610;Kulck, at 154-155, 677 N.E.2d at 324. Thus, I would hold that the jeopardy element has also been clearly established in this case.
The majority has held that plaintiff failed to present any evidence that her termination was caused by the fact that she and her husband filed a lawsuit against the hospital. However, the Supreme Court of Ohio has stated that only the clarity and jeopardy elements are to be considered in a motion for summary judgment. The causation and justification elements' are questions of fact. See Collins, 73 Ohio St.3d at 70, 652 N.E.2d at 658.
Even if this court were to consider the causation factor of the public-policy claim, I would nevertheless hold that genuine issues of material fact exist relating to causation. Under Ohio law, a causal connection between one act and an adverse action by an employer can be established by showing that the adverse action occurred sufficiently close in time to the protected act to raise an inference of retaliation. See, e.g., Neal v. Hamilton Cty. (1993), 87 Ohio App. 3d 670, 622 N.E.2d 1130, jurisdictional motion overruled (1993), 67 Ohio St. 3d 1481, 620 N.E.2d 854. In those cases in which a plaintiff has pointed to nothing more in the record than the occurrence of the adverse action after the protected activity, courts have held that the plaintiff has failed to raise a genuine issue of fact regarding causation.
However, if the plaintiff has other circumstantial evidence, the proximity in time may be enough to preclude summary judgment on the causation issue. Such circumstantial proof can include evidence that the employer reacted negatively to the employee's protected activity, that the employee was treated *Page 674 differently from other employees following the protected activity, or that the company deviated from its own policies in disciplining an employee following protected activity. See, e.g.,Yousef v. Borman's Foods, Inc. (Dec. 28, 1988), C.A.6 No. 88-1006, unreported, 1988 WL 138966, citing Jackson v. RKOBottlers of Toledo, Inc. (C.A.6, 1984), 743 F.2d 370, 377;Harrison v. Metro. Govt. of Nashville Davidson Cty. (C.A.6, 1996), 80 F.3d 1107, 1118-1119; Griswold v. Fresenius USA, Inc. (N.D.Ohio 1997), 978 F. Supp. 718, 733; Kowalski v. Kowalski HeatTreating (N.D.Ohio 1996), 920 F. Supp. 799, 805; Thatcher v.Goodwill Indus. of Akron (1997), 117 Ohio App. 3d 525, 535-536,690 N.E.2d 1320, 1327.
In this case, plaintiff was terminated only six months after her lawsuit was filed. She alleged that Seim told her that Phil Temple would react negatively to her filing the lawsuit. Seim admitted that he might have led the plaintiff to believe that Temple would be angry and might retaliate. Seim also testified that the lawsuit caused concern to the management at the hospital and that it was widely discussed. Plaintiff was treated differently than the previous department director, who had been given a one-hundred-twenty-day period to improve her performance. The failure to provide the one-hundred-twenty-day review period violated the terms of the hospital's manual. Right up until she was actually terminated, Seim continued to assure plaintiff that she would not be terminated and that she would be given the opportunity to work on the problems raised in the satisfaction survey and in the meetings Seim had held with other employees plaintiff supervised. Although plaintiff knew that complaints and problems existed with respect to her management, her termination can be described as sudden and unexpected in light of Seim's continued assurances.
Construing this evidence in the light most favorable to plaintiff, I would hold that the evidence raises an issue of fact as to whether plaintiff's discharge was causally connected to the filing of the lawsuit.
For the foregoing reasons, I disagree with the majority and dissent from its disposition of this case. I would reverse and remand for further proceedings. *Page 675