Opposition to Deborah Cook's Nomination to the U.S. Court of Appeals for the Sixth Circuit

Rights of workers and consumers

A series of dissents by Justice Cook in cases in which the Ohio Supreme Court majority has protected the rights of individuals, as well as her apparent tendency to favor the interests of businesses over those of workers and consumers, raise very deep concerns about her nomination. For example, Justice Cook would have ruled against an injured worker in the worker’s compensation case of State ex rel. Russell v. Industrial Commission of Ohio, 696 N.E.2d 1069 (Ohio 1998), authoring a dissent that was harshly criticized by the Court majority. In that case, the majority ruled unlawful the retroactive termination of a worker’s disability compensation based on the report of a non-attending physician when his own physician continued to certify his disability, and also refused to uphold a declaration that the worker had received a recoupable overpayment from the date of the non-attending physician’s report. In so ruling, the Court noted that it had “unwaveringly held” in prior cases that such disability compensation could not be terminated before a hearing as long as the worker’s attending physician continued to certify his disability, that the disability benefits could not be terminated retroactively to a date prior to the hearing, and that the worker was entitled to all compensation paid to the date of the hearing. 696 N.E.2d at 1071.

Despite the Court’s precedent, Justice Cook dissented (joined only by Chief Justice Moyer) and would have upheld not only the retroactive termination of the worker’s benefits but the administrative order that the “overpayment” be recouped. The Court majority had strong words of criticism for Cook’s dissenting opinion, calling its arguments “confused,” “lack[ing] [in] statutory support for its position,” “pure fantasy,” and “entirely without merit.” 696 N.Ed.2d at 1073, 1074. The Court also observed that the dissent’s argument had “not been raised by the commission, the bureau, the claimant’s employer, or any of their supporting amici. . . .” 696 N.E.2d at 1074.

In another case, Johnson v. BP Chemicals, Inc., 707 N.E.2d 1107 (Ohio 1999), Justice Cook dissented from a ruling by the Court striking down an Ohio statute that made it virtually impossible for an employee to recover damages from his or her employer caused by an intentional tort committed by the employer. The statute had been enacted in response to an earlier decision by the Court striking down a prior effort by the state legislature to shield employers from liability for their intentional tortious conduct. In Johnson, the Supreme Court majority was extremely critical of the legislature’s apparent efforts to ignore the Court’s precedent, stating “[W]e thought that we had made it abundantly clear that any statute created to provide employers with immunity from liability for their intentional tortious conduct cannot withstand constitutional scrutiny.” 707 N.E.2d at 1111 (emphasis added).

Nevertheless, Justice Cook would have upheld the statute, effectively shielding employers from liability to employees for their intentional wrongdoing and harming workers. For example, under Cook’s view, an employer could knowingly expose its employees to dangerously defective machinery (as was alleged in this case) and an employee injured by this conduct would have no effective means to recover damages. Disturbingly, Cook has also identified this dissent as one of the “ten most significant” opinions she has written in her career as a judge. 5

In another case involving the rights of workers, Justice Cook took a dissenting position that would have narrowed Ohio law prohibiting employment discrimination. In Genaro v. Central Transport, Inc., 703 N.E.2d 782 (Ohio 1999), a majority of the Ohio Supreme Court held that, under state employment discrimination law, supervisors can be held liable for their own discriminatory conduct. While noting that this is not the case under federal employment discrimination law (Title VII), the majority explained that the language of the Ohio statute differs from that of Title VII, and held that the “plain language” of the Ohio statute “imposes individual liability on managers and supervisors for their discriminatory conduct. . . .” 703 N.E.2d at 785. In so holding, the Court noted the Ohio legislature’s mandate that the state anti-discrimination law “shall be construed liberally for the accomplishment of its purposes.” 703 N.E.2d at 785. The Court further noted the “existence of a strong public policy against discrimination,” and observed that “[a] majority of this court have, time and time again, found that there is no place in this state for any sort of discrimination no matter its size, shape, or form or in what clothes it might masquerade. This, of course, includes discrimination in the workplace.” Id. Cook both joined a dissent and authored one of her own, disagreeing with the majority in its reading of Ohio law and looking also to case law interpreting Title VII, despite the different language of the federal and state laws.

In Williams v. Aetna Finance Company, 700 N.E.2d 859 (Ohio 1998), cert. denied, 526 U.S. 1051 (1999), Justice Cook dissented from the Court’s ruling, which upheld a trial court’s refusal to enforce a mandatory arbitration clause in a consumer loan agreement that was part of a scheme to defraud elderly homeowners. The suit was brought by Mildred Williams against a finance company that, she contended, had conspired with a man who had targeted elderly African American homeowners in a scheme to have them take out home improvement loans at very high interest rates knowing that the repair work would not be completed. The loan agreements contained mandatory arbitration clauses, and the finance company sought to bar Mrs. Williams’s suit on that basis. The trial court denied the company’s motion to compel arbitration.

At trial, the jury found in favor of Mrs. Williams on her conspiracy charge, and awarded her more than $1.5 million in compensatory and punitive damages. The Supreme Court majority held that, based upon the record, the trial court’s denial of the finance company’s motion to compel arbitration was “tantamount to a finding that the agreement to arbitrate was invalid, and further that the arbitration provision was unconscionable.” 700 N.E.2d at 867. Citing a strong policy favoring arbitration, which the majority acknowledged, Cook in her dissent would have enforced the finance company’s arbitration clause, which would have reversed the verdict for Mrs. Williams without even a trial. Not only did Justice Cook’s dissent ignore the egregious facts of this particular case, it also revealed a disturbing lack of concern about the unequal bargaining power between consumers and businesses that may result in mandatory arbitration agreements in consumer contracts that are not truly voluntary.

In sharp contrast, in a case in which arbitration of grievances was bargained for as part of a collective bargaining agreement between management and labor, Justice Cook would have overturned an arbitration award that favored a worker who had been discharged by his employer, a regional transit authority. Cook was the only dissenter from the Court’s ruling upholding the arbitration award in Southwest Ohio Regional Transit Authority v. Amalgamated Transit Union, 742 N.E. 2d 630 (Ohio 2001), which concerned a bus repairperson who had been discharged by his employer after failing a random drug test. The worker’s union filed a grievance on the worker’s behalf, which was referred to arbitration under the terms of the collective bargaining agreement (“CBA”) that the union had with the transit authority. The union contended that the worker had been discharged in violation of the CBA, which prohibited the employer from firing workers without “sufficient cause.” After considering the length of the worker’s employment and his lack of prior disciplinary problems, the arbitrators agreed and ordered the worker reinstated, but without back pay and with the proviso that he complete a drug and alcohol rehabilitation program.

The employer asked the courts to overturn the arbitration award. In rejecting the employer’s claim that the arbitration award did not “draw its essence from the CBA,” the Supreme Court noted that this was a situation in which a union and an employer had “contracted to have disputes settled by an arbitrator chosen by them rather than by a judge.” 742 N.E.2d at 633. Accordingly, the Court’s role was “limited” to determining whether there was “a rational nexus between the CBA and the award.” Id. The Court held that there was, explaining that to “enforce automatic termination would allow an employer to unilaterally adopt a sanction that conflicts with the sufficient-cause requirement for dismissal that was negotiated into the CBA, thereby undermining the integrity of the entire collective bargaining process.” Id. at 634. Justice Cook alone disagreed with the ruling, and would have overturned the arbitration award, thus upholding the worker’s dismissal.

5. Answer to Question No. 15 of Senate Judiciary Committee questionnaire.
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