[This opinion has been published in Ohio Official Reports at
89 Ohio St.3d 1215.]
RETTERER, APPELLANT, v. WHIRLPOOL CORPORATION ET AL., APPELLEES.
[Cite as Retterer v. Whirlpool Corp., 2000-Ohio-129.]
Appeal dismissed as improvidently allowed.
(No. 99-818—Submitted February 23, 2000— ecided June 21, 2000.)
APPEAL from the Court of Appeals for Marion County, No. 9-98-55.
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Elliot T. Fishman Co., L.P.A., Elliot T. Fishman and W. Bryon Speakman,
for appellant.
David J. Parsons and Shanthi V. Gaur, pro hac vice; Frericks & Howard
and Thomas A. Frericks, for appellees.
Louis A. Jacobs; Spater, Gittes, Schulte & Kolman and Frederick M. Gittes,
urging reversal for amici curiae, Ohio Employment Lawyers Association et al.
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{¶ 1} The cause is dismissed, sua sponte, as having been improvidently
allowed.
{¶ 2} The court orders that the court of appeals’ opinion not be published in
the Ohio Official Reports and that it may not be cited as authority except by the
parties inter se.
MOYER, C.J., F.E. SWEENEY, COOK and LUNDBERG STRATTON, JJ., concur.
RESNICK and PFEIFER, JJ., concur separately.
DOUGLAS, J., dissents.
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PFEIFER, J., concurring.
{¶ 3} Appellant, Douglas Retterer, allegedly encountered unwelcome
sexual remarks and touching from supervisors and coworkers while he was an
employee of Whirlpool Corporation at its Marion plant. Retterer also allegedly was
SUPREME COURT OF OHIO
the subject of continuous ridicule because of his sexual orientation. Retterer filed
a complaint against Whirlpool and his coworkers on April 20, 1994, alleging,
among other things, sexual harassment. The trial court granted a motion for
summary judgment in favor of the defendants on November 7, 1995. On appeal,
the Third District Court of Appeals reinstated most of Retterer’s causes of action
but upheld the dismissal of the sexual-harassment claim. The court found that
Retterer’s claims sounded in sexual-orientation discrimination, which was not
actionable in Ohio. Retterer v. Whirlpool Corp. (1996), 111 Ohio App.3d 847, 860,
677 N.E.2d 417.
{¶ 4} Importantly, Retterer failed to appeal that decision. The court of
appeals’ judgment thus became the law of the case, foreclosing Retterer from
reasserting his claim of sexual harassment. Upon remand of the case, Retterer
attempted to reinstate his sexual-harassment claim based upon the United States
Supreme Court’s ruling in Oncale v. Sundowner Offshore Services, Inc. (1998), 523
U.S. 75,
118 S.Ct. 998,
140 L.Ed.2d 201, in which the court held that same-sex
sexual-harassment claims are actionable under Title VII. Retterer’s motion to
amend his complaint was properly denied.
{¶ 5} I write to make clear that this case was improvidently allowed based
primarily on procedure. Retterer had an opportunity to appeal the decision of the
appellate court, but did not. He is therefore forced to live with that decision.
{¶ 6} Retterer’s sexual-harassment claim should have survived summary
judgment. On this day, this court held that “R.C. 4112.02(A) protects men as well
as women from all forms of sex discrimination in the workplace, including
discrimination consisting of same-sex sexual harassment.” Hampel v. Food
Ingredients Specialties, Inc. (2000), 89 Ohio St.3d 169,
729 N.E.2d 726, paragraph
three of the syllabus. This case might have presented the opportunity for us to
consider whether discrimination based upon sexual orientation is also actionable
under R.C. 4112.02(A). The abusive behavior that might give rise to such a cause
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January Term, 2000
of action continues to exist even in this supposedly enlightened day, and certainly
it is only a matter of time before the question of sexual-orientation discrimination
(and whether it is merely the opposite side of the same sexual-harassment coin) is
properly before this court.
RESNICK, J., concurs in the foregoing concurring opinion.
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