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Tchankpa v. Ascena Retail Group, Inc.: Tenth District Court of Appeals Issues Well-Reasoned Ruling in Close Case, Clarifies Ohio Law on Employer Intentional Torts

Several years ago I was asked to research the viability of a lawsuit on behalf of a woman who worked in a restaurant. Her main allegation was that her employer had caused her physical injuries by (1) requiring her to work in a role where she had to do lots of overhead lifting and (2) refusing to move her to a different role when she asked to be moved. Her injuries were serious - she needed surgery. The employer had treated her very badly. I figured she must have a strong case. Then I learned about RC 2745.01, which provides: 

(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur

(B) As used in this section, "substantially certain" means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death

This is yet another way that Ohio law is very favorable to businesses/employers, in addition to caps on punitive and noneconomic damages, limitations in Ohio consumer protection laws, and a higher standard for respondeat superior liability. Because of RC 2745.01, the woman discussed above would essentially be limited to filing a worker's compensation claim. (She could possibly satisfy the standard provided in RC 2745.01, depending on more facts, but it is a challenge to prove that an employer deliberately intended to injure an employee, as opposed to simply being "negligent.") Almost all on-the-job physical injuries Ohio employees suffer must be redressed through the worker's compensation system. As such, in most cases an employee cannot ask a jury to consider the employer's egregious conduct and decide a damages award with respect to their physical injuries. It should be clarified that the woman discussed above could still file a lawsuit for racial discrimination, gender discrimination, age discrimination or disability discrimination, but the damages recoverable at trial would not include the physical injuries or medical expenses associated therewith. (This may depend on a case by case basis. Because of the complicated nature of this area of law, consultation with an Ohio employment lawyer is crucial.)

Tchankpa v. Ascena Retail Group, Inc., a case recently decided by Ohio's Tenth District Court of Appeals (which covers the Columbus area), eases the standard for proving an "employer intentional tort." This case showcases an example of conduct short of a deliberate intent to harm that courts will deem sufficient to meet the requirements of RC 2745.01. In my opinion, the Tenth District issued a very fair and well-reasoned opinion. The basic facts were:

{¶ 1} Kassi Tchankpa was employed by Ascena Retail Group, Inc. ("Ascena") when he got injured while moving a computer. [Ascena is a publicly-traded American retailer of women's clothing. Ascena also owns the Maurices, Justice, Lane Bryant, and Catherines clothing store brands, and is the parent company of Ann Inc., operator of Ann Taylor and Loft stores.] His medical treatment was initially covered by his employer's medical insurance with Aetna. At some point in time, Aetna, perhaps as a result of communication with Ascena, came to view the injury as being part of a potential workers' compensation claim and began refusing to pay the accruing medical bills. 

{¶ 2} Tchankpa's treating physician became frustrated at not being paid and curtailed Tchankpa's medical treatment, which resulted in Tchankpa's medical picture deteriorating.

{¶ 3} Ascena, a self-insured employer for workers' compensation claims, began paying Tchankpa's medical bills, but later discontinued payment. Ascena now appears to contest the issue of whether Tchankpa's injury arose out of his employment. 

{¶ 4} A district hearing officer with the Industrial Commission of Ohio initially found that Tchankpa had the right to participate in the workers' compensation system, but Ascena pursued that ruling to the staff hearing officer in an appeal who found that Tchankpa did not have the right to participate in the workers' compensation system. 

{¶ 5} While the issue of who should pay the medical bills was being contested, Tchankpa filed a lawsuit alleging that Ascena was guilty of an intentional tort for refusing to pay his medical bills and withholding workers' compensation benefits. That lawsuit was dismissed by a trial court judge who felt that the lawsuit failed to state a claim upon which relief could be granted. Tchankpa, now represented by counsel, has appealed that dismissal, assigning a single error for our review: The Common Pleas Court committed reversible error when it dismissed Mr. Tchankpa's lawsuit for failing to state a claim upon which relief can be granted.

Sometimes, when the law is not entirely clear, a Judge has to create the law, taking into account fairness and policy implications. Here, Judge Timothy S. Horton and Judge Gary Tyack did just that, in my opinion (a third Judge dissented, as explained below, resulting in a 2-1 decision). The majority first noted that "Tchankpa's frustration is understandable," as "[h]e had a good job and was injured while employed. The company's medical insurance paid his medical bills for a while. Then someone informed the medical group insurance company that the injury might be part of a claim for workers' compensation, so the payments stopped." The majority further noted that "while the obligation to pay the medical bills stays in limbo, Ascena benefits; its premium for workers' compensation coverage is not raised because of a worsening claims history. The insurance company premiums with Aetna also do not increase for a claim it is not paying."

The majority overturned the Trial Court's dismissal of Tchankpa's lawsuit, explaining as follows:

{¶ 16} The complaint filed by Tchankpa alleged that Ascena moved Tchankpa from the group of employees covered by Aetna to an employee who was pursuing a workers' compensation claim, thereby terminating his health insurance coverage while contesting his eligibility for workers' compensation.

{¶ 17} The facts as alleged in the complaint are sufficient to support a claim that Ascena acted in bad faith in terminating the medical coverage of the injured employee, knowing it would cause physical and psychological harm to the employee. As a result, the complaint stated a viable claim for relief and should not have been dismissed. At this stage of the proceedings, we do not know all the details and much of what is in the briefs has not been proved. However, the complaint filed by Tchankpa clearly alleges that Ascena terminated Tchankpa's medical coverage under conditions which indicate bad faith and which indicate knowledge that the termination of the coverage would do physical harm to Tchankpa.

I believe the majority made the right decision. Deciding the case the other way would reward a company that was acting in bad faith and send a message to employers that they can jerk their injured employees around without facing legal action. (It is not entirely clear that the Plaintiff even has a valid workers' compensation case, for reasons explained in the decision. It would also place an injured Plaintiff even more in limbo than he already is. Rather than sanction these undesirable results and create bad policy, the majority decided that the employer's conduct (if proven as alleged) could meet the threshold for an employer intentional tort, supplying the Plaintiff with a remedy. 

The dissenting Judge, Lisa L. Sadler, made convincing arguments as well: that the majority "suppl[ied] a cause of action" that Tchankpa (who filed the suit pro se but was represented by an attorney on appeal) did not even explicitly allege in his Complaint; that even on appeal Tchankpa does not allege identify what intentional tort Ascena supposedly committed (this is a good point); that Tchankpa's Complaint was insufficient because it failed to provide a "plain statement" of his claim against Ascensa; and that the legal support for the claim "that [Ascensa] acted in bad faith in terminating the medical coverage of the injured employee, knowing it would cause physical and psychological harm to the employee" is unclear and it may not be a tort under Ohio law even if Ascensa really did do this. Judge Sadler must be praised for voting based on the law and not on the emotional appeal the case presented. Still, I have to respectfully side with the majority, because of the policy implications and because Ascensa (if the allegations are proven) really did cause physical harm by acting in bad faith. That simply should not be tolerated in Ohio.

It will be interesting to see if this case resurfaces in a year or two, after either a jury verdict, grant of summary judgment, or even a trip to the Supreme Court of Ohio. Because of the somewhat unclear legal issue involved, there is probably a decent chance further appellate review would be granted. Until then, Ohio employment attorneys should be aware of this potential claim.

 

Alex Durst is a Cincinnati employment law attorney and Cincinnati sexual harassment attorney with The Durst Law FirmLicensed in Ohio, Alex has also practiced in Missouri, Florida, Indiana, California, Nevada, Massachusetts, and Kentucky. Alex can be reached at (513) 621-2500 or alex@durstlawfirm.com.