Good news for Ohio employers! On Dec. 12, 2007, the Ohio Supreme Court gave employers an early holiday present – ruling that employers may lawfully sue employees for defamation, malicious prosecution, intentional infliction of emotional distress, and other similar claims, even after the employee has engaged in conduct that is protected by state anti-discrimination laws.

In Greer-Burger v. Temesi, the Ohio Supreme Court decided that the filing of a lawsuit by an employer against an employee or former employee who has engaged in protected activity (such as filing a discrimination lawsuit or a charge with the Ohio Civil Rights Commission) is NOT per se unlawful retaliation. All seven justices agreed on this result; however, three of the seven justices disagreed with the standard set by the other four justices to determine when an employer’s lawsuit would be considered unlawful retaliation. As a result, employers should carefully evaluate whether to file such actions.

The Facts

Tammy Greer-Burger filed a sexual harassment lawsuit against Laszlo Temesi, her employer. A jury found in favor of Mr. Temesi. Five months later, Temesi filed a lawsuit against Greer-Burger alleging malicious prosecution and intentional infliction of emotional distress claims. Ms. Greer-Burger then filed a charge with the OCRC in which she alleged that Mr. Temesi’s lawsuit was unlawful retaliation after she had engaged in protected activity (the filing of her original sexual harassment lawsuit), in violation of Ohio’s antiretaliation provision, R.C. 4112.02(I). The OCRC found “probable cause” to believe that Temesi engaged in illegal retaliation by filing his lawsuit. An OCRC administrative law judge (“ALJ”) found in Greer-Burger’s favor and recommended that Temesi cease and desist all discriminatory practices and pay $16,000 to Ms. Greer-Burger for attorney fees. The OCRC adopted the recommendation and ordered Temesi to pay Greer-Burger. The cease and desist order, in effect, prohibited Temesi from proceeding with his lawsuit. Mr. Temesi appealed the OCRC Order, however the lower courts affirmed the OCRC’s order.

The Decision

The Ohio Supreme Court acknowledged that this was a case of first impression, which required that the Court weigh two factors: (1) “the statutory rights of an employee to seek redress for claims of discrimination without retaliation,” and (2) “the constitutional right of an employer to petition the courts for redress after prevailing in the employee’s cause of action against him.” The Court stated that the right to petition for redress is not absolute, and that it does not allow an employer to file “sham litigation” – which has been defined by the United States Supreme Court as a lawsuit that is “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits.” In contrast, the Court stated that an employer is not barred from filing a “well-grounded, objectively based action against an employee who has engaged in a protected activity.” According to the Court, if the employer can prove to the OCRC that its lawsuit is not objectively baseless, then the lawsuit “shall proceed in court while the proceedings before the OCRC shall be stayed.” The Court majority explained the governing standard as follows: the employer must demonstrate that its lawsuit presents “genuine issues of material fact,” in other words, that the evidence as presented by the employer (even if the employee disagrees with the evidence) could result in judgment for the employer. Courts use this standard when they decide whether to grant or deny a motion for summary judgment. In sum, the standard following this decision is that an employer will not be found to have engaged in unlawful retaliation if it files a defamation, malicious prosecution, or intentional infliction of emotional distress lawsuit against an employee so long as the employer can demonstrate that the claim(s) raise genuine issues of material fact.

Conclusion

This decision is a victory for employers; however, even assuming an employer can meet the legal standard set by the Ohio Supreme Court, employers should carefully consider the risk and expense (in terms of time and legal fees) of pursuing defamation, malicious prosecution, and intentional infliction of emotional distress claims against an employee that has engaged in protected activity. Such claims are difficult to prove, as are the measure of damages associated with the claims.