According to the Court’s opinion,
the plaintiffs filed a number of claims in April 2008, including
whistleblowing, wrongful discharge in violation of public policy and
slander. The employer filed
counter-claims against them as well.
[Plaintiffs] alleged . . . that, after [the employer] hired
Dr. Allen, they began investigating Dr. Allen's background and discovered he
had lost his dentistry license in Michigan, had been convicted of criminal
offenses in Michigan, and under the terms of his sentence, was not supposed to
leave Michigan. [Plaintiffs] also claimed to have witnessed Dr. Allen engage in
substandard and dangerous patient treatment that resulted in permanent damage
or loss of teeth. Much of this involved unnecessary dental procedures or
deliberately botched work to generate further treatment and thus higher billings
for [the employer] and Dr. Allen. [Plaintiffs] further claimed to have
witnessed Dr. Allen at work intoxicated, hung over, smelling of alcohol, and
falling asleep while examining patients. [Plaintiffs] claimed that they
informed their supervisors . . . of these issues regarding Dr. Allen, but
rather than act to protect patients from this conduct, ADC management and staff
retaliated against appellants by, among other things, harassing appellants,
warning them not to lodge further complaints, threatening them with legal
action for defamation, reducing their wages, assigning them unfavorable work duties,
and denying promotions.
. . . .
With respect to
workplace safety, both [plaintiffs] claim to have reported issues arising from
Dr. Allen's conduct, generally alleging that he physically accosted or harassed [them], threatened them, and had other
violent confrontations in the workplace, including an instance in which another
dentist in the same office brought a machete to work to confront Dr. Allen. Both [plaintiffs] asserted that, when they
brought these problems to the attention of their superiors, they were told to
ignore the situation or face termination.
. . .
. . . In this case,
the record is replete with evidence of the professional shortcomings of Dr.
Allen. The evidence indicates he routinely worked when hung over or intoxicated
to the point of dysfunction, and the results for some patients were
disfiguring, painful, and permanent. He intentionally botched simple procedures
in order to generate lucrative repair work after the fact. Most relevant to the
jeopardy element, the materials submitted by appellants, if believed, make it
clear that their terminations were in direct response to appellants' attempts
to warn their employer about the grossly substandard care provided by Dr. Allen
to ADC patients.
The trial court granted summary
judgment to the employer on most of the plaintiff’s claims in September 2010
(at which time the remaining claims and counter-claims were voluntarily
dismissed). The Court of Appeals
initially affirmed the dismissal of most of the claims (including the
whistleblower claims), but reversed on the public policy wrongful discharge
claim:
we concluded that the trial court erred when it held that as
a matter of law appellants had insufficiently pleaded in their complaint the
claims for public policy wrongful discharge based on drug and substance abuse
in the workplace, patient safety, and workplace safety.
. . . .
The failure of appellants' whistleblower
claims does not preclude a common law claim for wrongful discharge in violation
of public policy, because the whistleblower statute supplements rather than replaces the common law cause of
action. . . . However, if an employee
fails to strictly comply with the whistleblower requirements of R.C. 4113.52,
as we found in Blackburn, the
employee cannot base a Greeley claim
solely upon the public policy embodied in that statute. Id. at 153. Rather, the employee must identify an independent source
of public policy to support her claim.
On remand, the trial again dismissed the wrongful discharge
claim on the basis that the sources of public policy were not sufficiently
identified in the complaint. The Court of Appeals reversed since the
public policy sources were sufficiently identified at the summary judgment
stage:
They cite to two specific sections of the Ohio Revised Code,
R.C. 4101.11 and 4101.12, as specific statutory support for their proposed
public policy promoting workplace safety for employees and patients. . . .
These sections provide as follows:
R.C. 4101.11. Duty of employer to protect employees and
frequenters Every employer shall furnish employment which is safe for the employees
engaged therein, shall furnish a place of employment which shall be safe for
the employees therein and for frequenters thereof, shall furnish and use safety
devices and safeguards, shall adopt and use methods and processes, follow and
obey orders, and prescribe hours of labor reasonably adequate to render such
employment and places of employment safe, and shall do every other thing
reasonably necessary to protect the life, health, safety, and welfare of such employees
and frequenters.
R.C. 4101.12. Duty of
employer to furnish safe place of employment No employer shall require, permit,
or suffer any employee to go or be in any employment or place of employment
which is not safe, and no such employer shall fail to furnish, provide, and use
safety devices and safeguards, or fail to obey and follow orders or to adopt
and use methods and processes reasonably adequate to render such employment and
place of employment safe. No employer shall fail to do every other thing
reasonably necessary to protect the life, health, safety, and welfare of such
employees or frequenters. No such employer or other person shall construct, occupy,
or maintain any place of employment that is not safe.
. . .
We accordingly find that these statutes together establish
that there exists a clear public policy that is manifested in a state or
federal constitution, statute, or administrative regulation in Ohio favoring
workplace safety for employees and frequenters. . . . There is a statewide policy prohibiting
termination of employees who report conduct and practices in a dental practice
that present a risk of severe harm to patients or staff.
. . . .
We accordingly find the trial court erred in concluding that
there is no Ohio public policy against retaliation by employers against
employees who report workplace conditions that jeopardize staff and dental
patient safety. . . .. In so holding,
based on R.C. 4101.11 and 4101.12, we specifically disagree with the Sixth
District's holding in Whitaker v. FirstEnergy Operating Co., 6th Dist.
No. OT-12-021, 2013-Ohio-3856, ¶ 25, which found those statutes too
"general and broad" to support such a claim, and agree with the
dissent in that case. (Yarbrough, J., dissenting.)
With respect to the allegation that there is a clear
statewide public policy against drug abuse in the workplace, other than the
general criminalization of some types of drug use, we find that this public
policy is essentially subsumed into the two others cited. To the extent the
alleged drug abuse is a component of the threat to employee and patient safety,
it falls under the workplace safety rubric generally rather than as an independent
public policy grounds.
NOTICE: This summary is designed merely to inform and
alert you of recent legal developments. It does not constitute legal advice and
does not apply to any particular situation because different facts could lead
to different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
