In the case of Duff v. Christopher, 2023-Ohio-349, the lead decision for an appellate court concluded that a trial court was required to hold an evidentiary hearing to determine whether an employer’s president threatened to shoot an employee in the head while holding the president’s hand up mimicking a handgun raising arose out of and/or related to the employment agreement or whether it would be an absurdity to proceed to arbitration on such claims under the arbitration clause of the employment agreement.
In this case, the employee argued that the arbitration clause did not apply to the president and the president’s acts of pointing a finger gun, pretending to shoot the employee, and saying “shoot” do not arise out of and/or relate to the employment agreement. In response, the president argued that — as an agent of the employer — the arbitration clause did apply to the president since the clause applied to all claims of any kind against the employer or any of its officers, directors, managers, or employees. The president further argued that the president’s actions related to firing someone and occurred during a performance review meeting with the employee and, therefore, arose out of and/or related to the employment agreement. The appellate court majority concluded that additional facts were needed and remanded the matter to the trial court for an evidentiary hearing.
In writing the lead decision, Judge Matt Lynch explained that:
[T]here exists a factual dispute as to the exact circumstances of the incident that occurred between [the president and employee]. [The employee] asserted claims that [the president] made a shooting motion with his hand and threatened to shoot her in the head, alleging Assault and Intentional Infliction of Emotional Distress. [The president] contended, through his Motion to Dismiss to Compel Arbitration, that his actions were not a threat but that the term “shoot” is used in HR to refer to firing someone, his actions took place during a meeting relating to [the employee’s] work performance, and they pertained to her employment with the company. Under these differing versions of the events, [the president’s] actions may be either a tort committed outside of the scope of the agreement or an action related, at least in part, to employment and which would arguably fall under the arbitration clause. In the absence of a hearing by the trial court below, the record is not sufficiently developed for this court to make a determination on this issue.
2023-Ohio-349 at ¶ 21.
In the dissenting opinion, Judge Mary Jane Trapp argued that the employee’s claims against the president cannot within the scope of the arbitration clause as all of the employee’s claims are premised upon acts of physical violence, which do not fall within the scope of the employee’s employment duties and do not fall within any of the categories of employment related activities contained in the arbitration clause, and, thus, were not subject to the arbitration agreement.
In writing a concurring opinion, Judge Thomas R. Wright responded to the dissenting opinion by arguing that an evidentiary hearing is needed to determine “whether to be established; namely, whether the alleged threat was indeed a “threat” thereby encompassed under the rubric of an intentional tort or merely corporate parlance implying [the employee] may be fired, which would relate to a matter within the arbitration clause.” 2023-Ohio-349 at ¶ 31 (Wright, J., concurring). Judge Wright further argued that “one cannot escape contractual obligations by selectively pleading.” Id. at ¶ 37.
To read this case, click here.
Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always-changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.