Ohio Supreme Court Rejects Whistleblower Retaliation Claim Where Plaintiff Did Not Comply with Statute.

This morning, the Ohio Supreme Court reinstated the summary judgment of a public employer which had been accused of terminating a whistleblower in retaliation for reporting environmental misconduct involving its wastewater treatment plant. Lee v. Cardington, Slip Opinion No. 2014-Ohio-5458.  The Court found that the plaintiff did not satisfy the very technical requirements of Ohio’s whistleblower statute, even though he had been “instrumental in exposing crimes related to an automotive-parts manufacturer’s discharge of hazardous chemicals into the public water supply.”  Most notably, the crimes he exposed involved a local employer and not his own employer.   However, the plaintiff also failed to submit a written report to his employer (to give it the opportunity to cure any legal violations about its failure to make equipment repairs) before he reported his concerns to the EPA.

According to the Court’s opinion (and as previously described here last year), the plaintiff supervised his employer’s wastewater treatment plant and discovered that a local employer was discharging a hazardous chemical which caused over $750K in damage to the treatment plant.  After noticing significant accumulations of foam at the plant and that the treated sewage he used as farm fertilizer was harming plants, he asked the Ohio EPA to investigate.  EPA eliminated the treatment plant as a source of the pollution.   The US EPA also ruled out the treatment plant and ultimately found a local manufacturer to be responsible.  The plaintiff then had several disagreements with the Village Administrator (his boss) about how to repair the problems at the plant caused by the pollution and whether delays and uncorrected repairs would cause inadequate wastewater treatment discharged into a public water supply. Mostly, he felt that his suggestions would be more cost effective and efficient than other remedies being considered.   He took his concerns to the Village Council, where he conceded that the Village had not violated its operating permit yet, but would in the future if repairs were not made.   A few months later, the plaintiff was terminated for “insubordination, failure to complete jobs, personal use of village property, and taking time off without notice.”  He filed suit alleging retaliation. 

 

R.C. 4113.52(D) provides a cause of action to any employee who suffers disciplinary or retaliatory action “as a result of * * * having filed a report under division (A)” of R.C. 4113.52. The question here is whether Lee qualified for protection under R.C. 4113.52(A)(1) or (2), which identify two forms of whistleblowing. 

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R.C. 4113.52(A)(1) applies when an employee “becomes aware in the course of the employee’s employment of a violation of any state or federal statute or any ordinance or regulation of a political subdivision.” R.C. 4113.52(A)(1)(a). The violation must be one that the “employer has authority to correct” and that the “employee reasonably believes * * * is a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety, a felony, or an improper solicitation for a contribution.” Id.

{¶ 21} To report a violation, the employee must start with his or her employer. The employee must orally report the violation to his or her supervisor or other responsible officer and “subsequently shall file with that supervisor or officer a written report that provides sufficient detail to identify and describe the violation.” Id. If the employer does not correct or make a good faith effort to correct the violation within 24 hours, the employee may then notify outside authorities. Id.

The plaintiff did not prove that he ever submitted a written report to the Village (or his supervisor) about the Village violating any law.  He made a report about equipment failures and had conceded that the Village had not yet violated its operating permit.  The equipment failures did not constitute a crime.  Further, making recommendations about how to avoid violating the operating permit in the future did not qualify as a report of a crime under the statute. 

Moreover, his oral reports were too late under the whistleblower statute since they were made after he reported his concerns to the EPA about the pollution.   Therefore, he never gave his employer the opportunity to correct any potential crimes or legal violations.

Under R.C. 4113.52(A)(2), an “employee qualifies for protection”  

only after (1) discovering a criminal violation of R.C. Chapter 3704, 3734, 6109, or 6111 and (2) providing oral or written notification to “any appropriate public official or agency that has regulatory authority over the employer and the industry, trade, or business in which the employer is engaged.” R.C.  4113.52(A)(2).

The plaintiff did not qualify for protection under this portion of the whistleblower statute because there was no evidence that he communicated any concerns about the Village violating the law – only about the foam being generated by the local manufacturer.   The EPA told him that the treatment plant was not a source of the pollution, destroying any reasonable basis he may have had for making a report about the plant.

The Court only considered the Village’s appeal of the whistleblower claim and not any possible cross appeal of the dismissal of the plaintiff’s wrongful discharge in violation of public policy claim (which had previously been dismissed since it was supposedly adequately addressed by the whistleblower statute).

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.