Greer-Burger v. Temesi
On December 12, 2007, the Ohio Supreme Court issued a significant retaliation decision, Greer-Burger v. Temesi, 2007-Ohio-6442, which holds that an employer who files a malicious prosecution lawsuit against an employee after a discrimination lawsuit has not per se retaliated against that employee. Rather, the employer must be given the chance to show that the lawsuit is not “objectively baseless.” (Id. at syllabus.)
In 1998 Tammy Greer-Burger filed a sexual harassment claim against Lazlow Temesi. Temesi prevailed at trial. After the trial, Temesi filed a malicious prosecution, abuse of process, and intentional infliction of emotional distress lawsuit against Greer- Burger, seeking to recover the attorneys’ fees and costs he had incurred defending against the harassment suit, plus compensatory and punitive damages. In response to Temesi’s lawsuit, Greer-Burger filed a charge of discrimination with the Ohio Civil Rights Commission (OCRC), alleging that Temesi’s lawsuit was retaliation for her protected conduct -- her prior sexual harassment suit.
The OCRC, based solely on the fact that Temesi had filed suit, agreed with Green-Burger and found that Temesi’s lawsuit was prohibited retaliatory conduct, and ordered Temesi to immediately cease and desist from pursuing his lawsuit. The Cuyahoga County Common Pleas Court affirmed the OCRC’s decision, and Eighth District Appellate Court affirmed, stating that the language of R.C. 4112.02(I) “essentially creates an absolute privilege for the filing of a discrimination suit or charge.”
The Ohio Supreme Court, in a case of first impression, reversed and held the district and appellate courts erred when they ruled that Temesi’s action in filing a malicious prosecution lawsuit against a former employee based on her pursuit of a discrimination complaint against him automatically constituted illegal retaliation under Ohio's civil rights statutes without considering the merits of an employer's claim. Id. at ¶23.
There is an obvious tension between an employee’s statutory right to pursue a discrimination claim without retaliation and the employer’s constitutional First Amendment right to petition the courts for redress. When considering the employee’s retaliation claim, the employer must be afforded an opportunity to show that there is an objective basis for the lawsuit. In order to show that the lawsuit is not objectively baseless, the Court ordered the OCRC to review the employer’s lawsuit pursuant to the standard for rendering summary judgment. The Court concluded by noting that while employees’ right to pursue discrimination claims are a “laudable goal,” a stigma exists for those falsely accused of being discriminators.
Employers must understand that Greer- Burger is limited - the OCRC still can enjoin baseless claims that are brought in retaliation for legitimate discrimination claims. Employers should be cautioned before planning to use Greer-Burger v. Temesi to file lawsuits against all unsuccessful discrimination plaintiffs. Nonetheless, Their decision gives employers and their counsel a powerful tool to employ with chilling effect on those weak and sometimes totally baseless discriminatory claims brought by employees and their counsel in Ohio.