Ohio Courts Rejected Wrongful Discharge Claims

Last week, two Ohio appellate courts rejected public policy discharge claims on the basis that sufficient criminal and other statutory penalties existed which rendered unnecessary any common law employment claims for retaliation.  Last week, a Paulding County appellate court affirmed the dismissal of the retaliation complaint of a discharged employee who had reported alleged illegal bribery of a government official because the statutes which were allegedly violated by the bribes contained sufficient criminal penalties which made it unnecessary to create or recognize a new common law wrongful discharge or retaliation claim in order to protect enforcement of the public policy.   On the same date, the Geauga County appellate court affirmed an employer’s summary judgment on the public policy claim because the plaintiff had not been employed at will and could only be terminated for cause or at the expiration of this contractual term.  Further, the plaintiff’s alleged report of scrap metal theft lacked merit when there was evidence that he had failed to follow up with the police when so directed and eventually retracted his allegation.  Finally, his claim failed because there were sufficient criminal and statutory penalties in place to deter theft without creating or recognizing a new common law claim for unlawful retaliatory discharge.

In the first case, the plaintiff alleged that he was fired in January 2020 in retaliation for reporting to his employer’s legal department in June 2019 and the HR department in November and again in December 2019 that a manager had bribed a township government official (with cases of beer and by paying $125K for work on the farm of that official’s parents) in order to obtain the official’s approval for a company construction project which that official had previously opposed.  Werkowski v. EDP Renewables N. Am., L.L.C., 2023-Ohio-4178.  The plaintiff apparently did not comply with Ohio’s whistleblower statute and, instead, brought a common law wrongful discharge claim.  The trial court dismissed the claim based solely on the complaint’s allegations on the grounds that no actionable public policy was jeopardized by the termination of the plaintiff’s employment.    Not every public policy is threatened or jeopardized by the retaliatory actions of an employer; sometimes there are other types of government remedies in place – including criminal penalties – which are sufficient to deter violations of that policy or statute without creating a new employment cause of action.

{¶7} “The jeopardy-element analysis generally involves inquiring into the existence of any alternative means of promoting the particular public policy to be vindicated by a wrongful-termination-in-violation-of-public-policy claim.” . . . “When the sole source of the public policy is a statutory scheme that provides rights and remedies for its breach * * *, we must consider whether those remedies are adequate to protect society’s interest as to the public policy.” Id. “It is less likely that a wrongful-termination-in-violation-of-public-policy claim is necessary” where the statutory scheme includes remedies for violations. Id.

{¶8} In this analysis, a distinction exists between public policies that “protect a particular government interest” and “public policies that protect substantial rights of the employee.” . . . . Where a governmental interest is at stake, “[t]he lack of a personal remedy in the statutory scheme does not jeopardize the policy because the remedies contained in the statute sufficiently protect society’s interest and discourage employers from engaging in the prohibited behavior.” Id. at ¶ 20. Thus, in deciding the jeopardy element, courts “must determine (1) whether the public policy underlying * * * [the statute] promotes society’s interests, protects substantive rights of employees or both, and (2) whether the remedies outlined in * * * [that statute] adequately protect such interests and/or rights.” . . .

             . . . . In this case, [the plaintiff] points to several statutes that prohibit bribery or racketeering in R.C. 2921.02, 18 U.S.C. 201, and 18 U.S.C. 1962 as establishing a clear public policy against official corruption. Assuming for the sake of analysis that these statutes satisfy the clarity element, the identified public policy would ultimately promote a governmental or societal interest and would not directly address the substantive rights of employees.  . . .

On appeal, [the plaintiff] argues that, in the absence of a personal remedy for employees who are terminated after reporting bribery schemes, the penalties in the identified statutes are “inadequate to protect the employees’ substantive rights.” . . .  However, the Ohio Supreme Court has concluded that the “lack of a personal remedy” does not, by itself, jeopardize a public policy where a governmental or societal interest is at stake. . . . . Under House, the issue is whether the existing “statutory remedies, which do not include a personal remedy for a dismissed employee, adequately discourage the employer’s wrongful conduct and are sufficient to protect society’s interests * * *.”

{¶11} In determining whether the public policy is adequately protected, the Ohio Supreme Court has considered the penalties imposed for violations of the statutory scheme and the existence of other statutory protections for employees. House, supra, at ¶ 17, 22. Turning to the case presently before us, the statutes identified by [the plaintiff] contain significant criminal penalties to deter the bribery of public officials. Further, the General Assembly has enacted other provisions to protect whistleblowers, but [the plaintiff] did not avail himself of these protections in this case.  .  . . . Assuming for the sake of this analysis that the provisions identified by [the plaintiff] satisfy the clarity element, we do not conclude that the existing statutory remedies would be inadequate to protect a public policy against official corruption pursuant to the reasoning in House,  . . . .

{¶12} While [the plaintiff’s] arguments are intriguing, the Ohio Supreme Court has held that the “lack of a personal remedy” does not jeopardize a public policy if the statutory scheme provides remedies that would be sufficient to protect the identified governmental or societal interest.

In the second case, the plaintiff had been terminated following a whistleblower complaint by a subordinate and investigation which revealed that he had obtained an interest free $50K personal loan from a contractor of the employer and had work performed on his vacation home by a different contractor of the employer.   Underwood v. Cuyahoga Community College, 2023-Ohio-4180.   He had apparently stopped using one of the contractors after repaying the loan and that contractor provided evidence against him.  He was in charge of managing both of those contractors and this presented an obvious conflict of interest in violation of various employer policies and state ethics laws.  He was not prosecuted because of the passage of the applicable statutes of limitations.  He was nonetheless fired and then filed suit. 

The plaintiff alleged that he was actually fired for reporting a subordinate for stealing scrap metal a few years earlier, but the evidence showed that he had failed to follow up with the police about the alleged theft and later retracted his allegation.  The court found that there was no clear public policy implicated by a retracted allegation.  The plaintiff attempted to argue that he had let it drop because the employer had dismissed his concerns.  He presented evidence about a lack of investigation into that situation or into free work by that employee on the home of the employer’s security chief.  Nonetheless, despite his allegations, the employer had renewed his annual employment contract after he retracted the allegations.    Interestingly, this subordinate was the same individual who had reported the plaintiff’s ethics violations.

Finally, as in the prior case, the Court found that the public policy against theft was sufficiently protected by criminal laws and there was no need to create or recognize a common law retaliation claim for reporting alleged theft.

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.

Ohio Court Rejects Free Speech and Retaliation Claim by Private Sector Employee Fired for Facebook Post

Last month, the Court of Appeals for Auglaize County affirmed an employer’s summary judgment on a wrongful discharge in violation of public policy claim where the employee had been terminated shortly after receiving complaints about a racist meme which she had posted on Facebook in June 2020.  Hall v. Kosei St. Marys Corp., 2023-Ohio-2021.    The Court concluded that employees of private employers are not protected by the First Amendment or the Ohio Constitution and, thus, do not enjoy an unlimited right of free speech.  Further, she could not show that her arguably protected conduct (in reporting another employee for inappropriate comments) motivated her termination when other employees also complained about her Facebook post and could not have been retaliating against her.  The Court also found the passage of 25 weeks between the arguably protected conduct and her termination removed any temporal proximity needed to show causation by itself.

According to the Court’s opinion, the plaintiff had been employed for several years when she posted a meme on her Facebook page which, among other things, compared BLM protestors to monkeys.  She denied that she had seen the entire photo before she posted it and argued that it was more political than racial.   Several of her co-workers and subordinates saw it and complained to Human Resources.  She was then fired and brought suit, claiming that she was fired in violation of the right of free speech.  She pointed out that one of the complaining employees was retaliating against her for reporting them twice to Human Resources in the prior few months for making racially charged comments and allegations (which were unfounded) about her and other employees. 

The Court rejected her argument that she was fired in retaliation for reporting one of her subordinates for making racially charged and inappropriate comments.  She could not show causation when other employees had also complained and lacked the same motive to retaliate against her.  The passage of 25 weeks between her arguably protected conduct and termination also meant that she could not rely on temporal proximity to prove causation. 

As for whether she could show her termination violated public policy, she could not identify any court decisions where such a public policy had been applied to a private employer and at-will employee.   On the contrary, the court cited to a Franklin County Court of Appeals decision finding that the right of free speech under the U.S. and Ohio constitutions only apply to government employers. “[I]n the absence of state action, the free speech protections of the Ohio Constitution do not provide a basis for [plaintiff], an at-will employee, to raise a wrongful termination in violation of public policy claim in this case against [the defendant company], a private employer.”

we have not uncovered a case in which the free speech protections in the Ohio Constitution have been found to provide a legal basis for bringing a wrongful termination in violation of public policy claim against a private employer in the absence of state action. We decline the opportunity to become the first court to reach such a conclusion. As such, [the plaintiff] cannot establish the clarity element of her wrongful termination in violation of public policy claim in this case. For this reason, we conclude that summary judgment was an appropriate method to dispose of this claim.

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.

Ohio Modifies Ohio Civil Rights Act and Shortens Limitations Periods

 

What a long strange trip it has been.  Yesterday, Governor DeWine signed H.B. 352 into law.  While it is a scaled down version of what passed the Senate before Christmas, it addresses long-standing concerns with Ohio employment discrimination legal procedures and makes them more consistent and often still more generous than exist under federal law. Among other things, it generally shortens the limitations period for 4112 claims and some federal statutory claims to two years, requires exhaustion of remedies, incorporates specific federal defenses, and makes damages subject to tort cap limits, etc.  It still retains the right of employees to bring certain age discrimination and injunctive relief claims directly in court.

First, it shortens the limitations period for claims under O.R.C. § 4112, and federal claims under §§1981a, 1983 and 1985 to two years (from the existing six years), which is still twice as long as the federal limitations period under Title VII, the ADEA and the ADA, etc.  (The limitations periods for those federal statutes vary from state to state because they “borrow” the analogous state limitations period).  The limitations period begins to run from the date when “the alleged unlawful discriminatory practice was committed.”  This period will be tolled for Chapter 4112 claims as long as a Charge is pending at the OCRC, except that if the Charge was not filed until less than 60 days before the limitations period was about to lapse (i.e., on day 670), then the tolling will last another 60 days after the Charge is no longer pending at the OCRC.

Second, similar to federal law and with a few exceptions, it requires employees to first file a Charge with the Ohio Civil Rights Commission, before filing a lawsuit.   The time period for filing a Charge is the same as for filing a lawsuit: two years.   Employees may still request a right to sue letter from the OCRC prior to the conclusion of any OCRC investigation, but the OCRC may not issue the right to sue unless the Charge has been pending at least 60 days.

Third, with certain exceptions, employees cannot file suit unless they have a Right to Sue letter, have waited at least 45 days after requesting a RTS letter and 60 days since filing a Charge, or have received a letter where the OCRC found probable cause of discrimination to have occurred.   These conditions do not apply if the employee is only seeking injunctive relief or if the employee filed a timely charge with both the OCRC and EEOC and the EEOC has issued a right to sue letter (or if filing a lawsuit for age discrimination under §4112.14).   But, if the employee initially sought only injunctive relief from a court and later amends his or her complaint to include a claim for damages, the employee must have filed a timely OCRC Charge and comply with the right-to-sue letter requirements.   

Fourth, as with federal law, it eliminates individual liability of managers and supervisors under the statute.  The legislation notes that it intends to overrule the Ohio Supreme Court’s Genaro decision and to instead follow long-standing federal law on this issue.  

Fourth, it explicitly adopts the federal standard and affirmative defense from Faragher, for sexual harassment claims. 

Sixth, it makes verdicts for Chapter 4112 claims subject to the tort caps for non-economic damages.  

Seventh, it makes Chapter 4112 the sole and exclusive remedy for employment discrimination, which is similar to federal law.  In other words, there cannot be a common law wrongful discharge claims for violation of public policy against employment discrimination.

Finally, while it retains under §4112.14 the existing right of employees not subject to an arbitration agreement to file suit for age discrimination claims seeking only reinstatement, back pay, costs and attorney’s fees and the existing election of remedies, it added a few wrinkles.   The employee must still elect remedies (i.e., bring this direct action without being able to sue for compensatory or punitive damages or being required to file an OCRC Charge).   These direct actions are still subject to the new two year statute of limitations as described above.   Like other 4112 claims, that limitations period may be tolled if the employee filed a Charge with the OCRC making the same allegations. 

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. 

Sixth Circuit: Dueling Diagnoses Justified Employer's Request for New Medical Examinations

At the end of July, a unanimous Sixth Circuit affirmed an employer’s summary judgment on an ADA retaliation and public policy wrongful discharge claim where the employee objected to the employer’s reasonable accommodation conditions (that he wear a CPAP machine) and the parties debated conflicting medical reports as to whether he suffered from sleep apnea.  Allmanv. WalMart, Inc., No. 19-4220 (July 30, 2020).   The Court found the employer’s conditions to be reasonable under the circumstances and entitled to request additional medical examinations.  Ultimately, “arguing about the accuracy of the employer’s assessment is a distraction because the question is not whether the employer’s reasons for a decision are right but whether the employer’s description of its reasons is honest.”

According to the Court’s opinion, the plaintiff commercial truck driver disputed that he suffered from sleep apnea.  Federal DOT regulations require drivers to submit to annual physical examinations by specially certified physicians and to be free of sleep apnea.   Accordingly, once sleep apnea had been indicated during a mandatory annual medical examination, the employer required the plaintiff to submit at the employer’s expense to a sleep study, which confirmed the diagnosis.  He was thereafter required to wear a CPAP machine for at least four hours each night that he slept in his truck and this was apparently monitored remotely.  The plaintiff found the machine to be uncomfortable and objected to the requirement.  He was suspended each time he did not comply and could not return to work until he had worn it for five consecutive nights.  

The plaintiff then paid for his own sleep study, which was conducted by a physician who had not been certified by the DOT (or at least no evidence of such certification was ever provided), and it denied that he suffered from sleep apnea.   The employer requested that the plaintiff submit to a new DOT physical.  Sadly, the physician assistant simply accepted the results of the recent sleep study without conducting an independent examination. Accordingly, the employer requested that the plaintiff submit to a third sleep study by a third sleep specialist to resolve the prior conflict.  This study again confirmed that plaintiff suffered from sleep apnea.  After this study, the employer directed the plaintiff to wear the CPAP machine for 8 hours/night every night and would not permit him to return to work until he had worn it for three consecutive nights.

When the plaintiff still refused to wear the CPAP machine, the employer gave him one last chance:  within seven days he could take BOTH his non-apnea report and its most recent sleep study to a DOT certified physician of his choice to evaluate the conflicting medical reports and render a medical opinion.   The plaintiff refused and instead resigned his employment.  This lawsuit followed.

The Court found the employer’s accommodation of the plaintiff’s sleep apnea condition to be reasonable because without regular treatment with a CPAP machine, the plaintiff would not be qualified to work as a commercial truck driver under DOT regulations and could be a danger to other drivers when suffering from sleep deprivation while working. 

Regardless of whether the plaintiff could prove a prima facie case of retaliation, the employer provided a legitimate and non-retaliatory reason for its actions.

This court has explained that “[a]n employee is not protected when he violates legitimate rules and orders of his employer, disrupts the employment environment, or interferes with the attainment of his employer’s goals.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989). And Walmart’s program of requiring drivers who have sleep apnea to wear a CPAP machine constitutes a legitimate safety requirement and disability accommodation.

The Court rejected the plaintiff’s pretext arguments.  “Walmart had before it two separate studies demonstrating that Allman had sleep apnea, and the company reasonably sought to ensure that Allman’s twice-diagnosed medical condition was under control.”  The plaintiff could not belatedly attack the validity of the two sleep studies and require his employer to believe his explanation over the accounts of two different certified professionals.   The employer was not required to accept the results of his physician’s sleep study, especially since he failed to ever produce evidence that his physician was DOT certified.  The plaintiff also failed to produce evidence that the CPAP requirement was imposed out of spite.  On the contrary, he admitted that the employer imposed the requirement because it believed that he suffered from sleep apnea.

The employer was not required to accept as binding a DOT recertification which was issued in error.  Instead, “employers may permissibly disregard DOT cards issued in error.”  The employer’s request for a third-sleep study – after the erroneous DOT recertification the first two studies disagreed  -- was reasonable.  Indeed, it confirmed the result of the first sleep study finding sleep apnea.

The Court also rejected the plaintiff’s wrongful discharge claim.  First, it could not find where he had opposed unsafe working conditions by refusing to wear the CPAP machine: “Walmart’s CPAP requirement was not an unsafe working condition, but instead a disability accommodation meant to promote public safety on the highways and to ensure compliance with federal law.”

Further, the Court questioned whether his objection to the CPAP machine’s safety had been made in good faith:

we believe that “good faith” required an objectively reasonable belief that the CPAP machine was an unsafe working condition. Nothing in the record before us would allow a reasonable person to hold such a belief. Allman’s personal discomfort in wearing a CPAP machine that so many others have successfully used to alleviate the dangers of sleep apnea is indeed unfortunate, but his personal discomfort does not satisfy the jeopardy element of his Greeley claim.

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.

Ohio Supreme Court Rejects Public Policy Wrongful Discharge Claim for Protesting Payroll Fraud

Earlier this month, a divided Ohio Supreme Court ruled in favor of an employer on a public policy discharge tort.  House v. Iacovelli, Slip Opinion No. 2020-Ohio-435. The Court found that the plaintiff’s discharge for protesting her payroll stubs’ failure to accurately report her income “does not jeopardize any public policy that employers must accurately report employees’ pay and tips to the Bureau of Unemployment Compensation.” The Court found that the existing statutory structure and penalties on employers were sufficient to protect public policy. Therefore, “a personal remedy is not necessary to discourage wrongful conduct by employers  . . . “  Further, the unemployment tax statutes cited by the plaintiff do not prohibit retaliation against whistleblowers.  


As previously reported two years ago here, the plaintiff waitress alleged in her complaint that she confronted the restaurant’s owner about her payroll stubs underreporting her wages and tips.  He allegedly admitted that he had underreported her income and failed to make all of the required contributions in violation of Ohio Revised Code Chapter 4141.  She “further alleged that instead of addressing the issue, [he]  accused [her] of creating “too much drama” and terminated her employment.”  Thereafter, she alleged that he requested that she mislead ODFJS by claiming that she was laid off for lack of work and he agreed to give her $150 every two weeks to make up for the unemployment tax shortfall.  


Even though the defendant employer failed to file a timely motion to dismiss or summary judgment motion, the trial court dismissed the claim on the eve of trial on the basis that the plaintiff failed to satisfy the jeopardy element for public policy wrongful discharge claims.  That trial court found that the sole remedy under ORC 4141 was for the Attorney General to bring suit; no individual remedies were created. The Court of Appeals reversed. “While the administrative appeal process [to challenge the amount of awarded benefits] provides a viable mechanism to challenge a determination of benefits, it fails to set forth a remedial scheme for a situation such as this where an employee is terminated merely for inquiring about why her pay did not reflect the amount she had earned.”  The Court also found that failing to recognize such a claim would chill public policy because employees would not report such payroll failures if they could be fired for bringing them to the employer’s attention.


The Supreme Court reversed.  

When the sole source of the public policy is a statutory scheme that provides rights and remedies for its breach, as it is here, we must consider whether those remedies are adequate to protect society’s interest as to the public policy.   . . .  It is less likely that a wrongful-termination-in violation-of-public-policy claim is necessary when remedies for statutory violations are included in the statutory scheme. . . . This is especially true “when remedy provisions are an essential part of the statutes upon which the plaintiff depends for the public policy claim and when those remedies adequately protect society’s interest by discouraging the wrongful conduct.”  

            . . . After reviewing R.C. Chapter 4141, it is apparent that the General Assembly has provided remedies that discourage employers from inaccurately reporting employees’ pay and tips to the Bureau of Unemployment Compensation (violating R.C. Chapter 4141) and that punish employers who fail to comply with the requirements in R.C. Chapter 4141.

The statutory scheme is structured to protect only the government’s interest and was not designed to protect employees, unlike other statutory schemes  for whistleblowing, etc. where employee protections were contemplated.   In addition, an anti-retaliation remedy would only prevent retaliation and would not address or discourage the employer’s alleged failure to accurately report payroll information, which is the primary focus of the statute.  Finally, the unemployment tax statutes cited by the plaintiff do not contain any prohibition against retaliation towards whistleblowers.


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.

Ohio Appellate Court Finds Dismissal Without Cause of Probationary Civil Service Employee Violates Public Policy

Editor's Note:  This case was reversed by the Ohio Supreme Court on August 20, 2019.

Earlier this month the Franklin County Court of Appeals reversed the 12(B)(6) dismissal of the wrongful discharge claim of a civil service employee who was fired during his probationary period only six days after receiving a satisfactory performance evaluation allegedly because of the negative publicity that surrounded his hiring and prior employment.  Miracle v. Ohio Dept. of Veterans Servs., 2018-Ohio-819.  The Court found that the complaint stated a valid claim as a matter of law that it is illegal to terminate a civil service employee during his or her probationary period when the employee is performing his or her job duties satisfactorily.  In other words, the Court found a just-cause termination standard to be implied as a matter of public policy from the civil service statute during the initial probationary period even if the employee does not have the right to appeal to the applicable civil service commission.  Therefore, while civil service employees who successfully survive their probationary period can appeal only to the Board of Review or civil service commission, probationary employees can challenge their terminations in court.  That being said, this case illustrates one of my favorite practice pieces of advice: it is always risky to terminate an employee without a good reason following a satisfactory performance evaluation.

According to the Court’s opinion and based on the allegations of the complaint, the plaintiff allegedly explained during his job interview that he had been fired by another state agency following an investigation into an earlier prison escape where he formerly worked.    Assured that was not a problem for the current position, he was hired and received a satisfactory performance evaluation four months later.  Six days after that, he was terminated and refused any explanation because he was still a probationary employee.  He alleged that he was fired because an employee in the Governor’s office sought his dismissal to end negative publicity surrounding his hiring after his earlier termination by a different state agency.  There were apparently no allegations that anyone at the State benefitted personally from his termination or that it was in retaliation for engaging in protected conduct which a statute seeks to encourage.   The State moved to dismiss, which the Court of Claims did on the grounds that the complaint failed to state a claim upon which relief could be granted, even if the allegations were true.

In evaluating public policy wrongful discharge claims, “[t]he clarity and jeopardy elements, which involve relatively pure legal and policy questions, present questions of law” which are reviewed on a de novo basis.  The plaintiff alleged that:

"there exists a clear public policy in favor of retaining probationary employees who are satisfactorily performing their duties and against arbitrary termination of such employees."   . . .  In other words, [the plaintiff] derived from R.C. 124.27 a clear public policy against the discharge of civil service employees who provide satisfactory service during the probationary period.

The trial court had evaluated the allegation to preclude any termination of a probationary employee and found there to be no such public policy.  While the Court agreed that was true, it also found that the trial court misconstrued the alleged public policy, which – as an appellate court reviewing an issue of law de novo – it concluded did exist.  Therefore, it sustained the plaintiff’s claimed error and remanded the case to proceed with discovery. 

The civil service statute at issue – R.C. §124.27(B) -- provides in relevant part:

(B) All original and promotional appointments in the classified civil service, including appointments made pursuant to section 124.30 of the Revised Code, but not intermittent appointments, shall be for a probationary period, not less than sixty days nor more than one year, to be fixed by the rules of the director for appointments in the civil service of the state . . . . No appointment or promotion is final until the appointee has satisfactorily served the probationary period.   If the service of the probationary employee is unsatisfactory, the employee may be removed or reduced at any time during the probationary period.  If the appointing authority decides to remove a probationary employee in the service of the state, the appointing authority shall communicate the removal to the director. A probationary employee duly removed or reduced in position for unsatisfactory service does not have the right to appeal the removal or reduction under section 124.34 of the Revised Code.  (italics added for emphasis).

In a slightly different claim, the plaintiff alleged that Ohio public policy prohibits the abuse of power by officials, which the State conceded.  The Court then observed that the plaintiff would need to allege and prove that the alleged public policy was jeopardized by his discharge, but that the defendants had made a different argument in moving to dismiss.   Although the State argued that there was no private right of action under R.C. 124.56, the Court observed that this is whole point of public policy claims – to create a remedy where none otherwise exists when the public policy would be jeopardized.  Also, the complaint sufficiently alleged misconduct by the named defendants when they complied with the directions to resolve inconvenient “political optics.”  Finally, the fact that the defendants had the power and authority to dismiss probationary employees did not resolve the jeopardy question when it was alleged that their exercise of that power and authority violated the public policy against abuse of power.

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 be changed or 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.

Hamilton County Court of Appeals Rejects Public Policy Wrongful Discharge Claim Based on Alleged HIPAA and Insurance Fraud Violations

Last week, a divided Hamilton County Court of Appeals reversed a jury verdict entered in favor of a terminated physician on a public policy wrongful discharge claim on the grounds that her accusations of HIPAA and insurance fraud violations were not supported by sufficiently clear sources of public policy because neither statute imposed an affirmative obligation on the plaintiff to report her concerns or prohibited the employer from retaliating against an employee who reports violations of the statute.  McGowan v. Medpace, Inc., 2015-Ohio-3743. Unlike Cuyahoga and Franklin County Courts of Appeal, the Hamilton County Court of Appeals requires a statutory source of public policy to parallel the general whistleblower statute by requiring an employee to report concerns and to prohibit the employer from retaliation for reporting those concerns.  Also, this case rejects a prior Montgomery County Court of Appeals decision finding HIPAA to be a valid source of public policy to support a wrongful discharge claim.

According to the Court’s opinion, the plaintiff had been hired into three positions to replace a retiring physician: to be the Executive Director of two research centers and to take over the retiring physician’s private practice.  In addition, the retiring physician appointed her to replace him as the Principle Investigator on the research studies being conducted by the two research centers.   While the research centers was not affiliated with the private medical practice, they shared office space, employees and patients. Shortly after she started, the plaintiff became concerned with how the staff treated patient files (in that the research studies and medical practice operated using the same file instead of having different charts).  Staff also left the charts open on carts outside patient rooms.  She felt that this violated HIPAA.  She was also concerned that the retiring physician routinely ordered larger doses of medication than medically necessary and directed the patients to split them.   She felt that this was insurance fraud.   She also conferred with an attorney who confirmed her suspicions.  Accordingly, at the next staff meeting, she directed the staff to cease the offending practices and expressed her opinion that they violated HIPAA and insurance fraud laws.  The retiring physician learned of her accusations and removed her as the PI and from his private practice.  The defendant employer did not fire her or remove her from her ED positions, but explained that she should not have made the allegations and it could not control the retiring physician from removing her from his practice and research studies.  After she refused to apologize to the retiring physician and accused the employer of retaliation, it fired her a few weeks later.  She was awarded $800,000 in compensatory and punitive damages by a jury.  The employer appealed.

Unlike Franklin and Cuyahoga Counties, the Hamilton County Court of Appeals only recognizes narrow exceptions to the employment at will doctrine and  public policies as actionable wrongful discharge claim if the underlying statute – like the general whistleblower statute – requires the plaintiff to report concerns and prohibits the employer from retaliating against the employee for reporting those concerns:

In a claim for wrongful discharge in violation of public policy, an employee satisfies the clarity element by establishing that a clear public policy existed, and that the public policy was one that imposed an affirmative duty on an employee to report a violation, that prohibited an employer from retaliating against an employee who had reported a violation, or that protected the public’s health and safety.

With respect to the plaintiff in this case, the Court concluded that the insurance fraud statute did not impose an affirmative duty on her to report her concerns about the retiring physician’s insurance fraud or prohibit her employer from terminating her for reporting those concerns.  Accordingly, that statute could not constitute a clear source of public policy as required for a public policy wrongful discharge claim under Ohio law.

The Court reached the same conclusion with respect to the HIPAA issues even though the Montgomery County Court of Appeals had previously recognized it as providing a sufficiently clear source of public policy protecting patient’s privacy rights.  The dissent would have recognized the HIPAA public policy claim as protecting public safety.

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 be changed or 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.

Franklin County Court of Appeals: Ohio Public Policy Exists to Support Wrongful Discharge Claims for Reporting Unsafe Workplace, Substance Abuse and Patient Mistreatment

Last week, a panel of the Franklin County Court of Appeals unanimously reversed an employer’s summary judgment in a wrongful discharge case and found a specific statutory duty for employers to provide a safe workplace that was void of patient malpractice and drug abuse.  Blackburn v. Am. Dental Ctrs., 2014-Ohio-5329.  In that case, a dental office hired a dentist for less than six months in 2002.  In that time, he became the subject of a number of complaints by the plaintiffs (and presumably others).  One of the plaintiffs was terminated shortly after the dentist left and another ceased coming to work approximately five months later, after objecting to unsafe practices (most from the former dentist) involving employees and patients. They both filed a number of claims, including a whistleblower claim which was dismissed on summary judgment, and public policy discharge claims based on an unsafe workplace, mistreatment of patients and workplace substance abuse. The Court reiterated that a plaintiff may pursue a public policy wrongful discharge claim even if her whistleblower claim fails as long as she can identify an independent public policy apart from the failed statutory whistleblower claim.  Further, the plaintiff is not required to specifically identify the statute evincing the public policy in her complaint and can survive summary judgment by identifying the statute at that time.  Rejecting the holding of a different Ohio Court of Appeals, the  Court found Ohio Revised Code §§ 4101.11 and 4101.12 to evince a public policy prohibiting retaliation by employers against employees who report workplace conditions that jeopardize staff and dental patient safety.  Moreover, the Court found these statutes broad enough to also constitute a public policy against alleged workplace drug abuse which poses “threat to employee and patient safety.”

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.

Ohio’s Public Policy Wrongful Discharge Cases Continue Yo-Yo Paths in Appellate Courts

Yesterday, the Cuyahoga County Court of Appeals volleyed the Alexander case, which is likely to return to the Ohio Supreme Court concerning a public policy wrongful discharge claim involving the discharge of a private police officer who alleged that he was fired for enforcing Ohio’s traffic laws. Alexander v. Cleveland Clinic Foundation , 2012-Ohio-1737. As previously discussed here, the plaintiff was fired for slapping a car hard enough to dislodge the side-view mirror after the driver disregarded his instruction to stop at a cross-walk. He had previously been disciplined for yelling at a bus driver that drove so close to him that it knocked him down. Therefore, the employer concluded that he lacked sufficient customer service skills. The plaintiff, on the other hand, contended that he was fired for performing his law enforcement duties. The Court of Appeals agreed and reversed summary judgment, which the employer appealed to the Ohio Supreme Court. That Court, in turn, vacated the decision in light of its decision in Dohme requiring the identification of a specific statute, case or regulation reflecting public policy. (As you may recall, Dohme travelled back and forth between the Montgomery Court of Appeals and the Supreme Court on whether there was a final appealable order and then on the merits). Yesterday, the Court of Appeals identified what it found to be a sufficiently specific statute that reflected the public policy jeopardized by the plaintiff’s termination and again reversed the trial court’s summary judgment for the employer.

Upon remand from the Supreme Court, the plaintiff:

cites to R.C. 1702.80(D), R.C. 2935.03, and common law, “where cases have made it clear, that as a matter of public policy police officers may not be fired for enforcing the law.” The cases Alexander cites to in support of his common law argument are Barnes v. Cadiz, 7th Dist. No. 01531CA, 2002-Ohio-1534, ¶15 and State v. Boymin, 106 Ohio App. 393, 154 N.E.2d 823 (9th Dist.1958). . . . . The statute governs qualified nonprofit corporation police departments such as the CCPD and provides that if a qualified nonprofit corporation establishes a police department, the department “shall preserve the peace, protect persons and property, enforce the laws of the state” and “each police officer * * * is vested with the same powers and authority as are vested in a police officer of a municipal corporation.” R.C. 1702.80(D).

The employer argued that this statute could not constitute a valid public policy or satisfy the clarity element of a wrongful discharge claim because it did not apply to the employment relationship, like, for instance, OSHA. However, the Court disagreed:

We find, however, no requirement that a supporting statute be employment-related or otherwise set forth an employer’s responsibilities and/or an employee’s rights. For illustration purposes, in Collins, 73 Ohio St.3d 65, 72, 652 N.E.2d 653, the Ohio Supreme Court found that Ohio’s criminal sex offense statutes embodied sufficiently clear expressions of public policy to justify a public policy exception in cases of sexual harassment and discrimination.

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.

Ohio Supreme Court Finally Puts Nail in Dohme Coffin

This morning, the Ohio Supreme Court finally reversed the Dohme case on the merits, finding that that the plaintiff had failed to allege the violation of any state or federal statute, regulation, rule or decision when he was fired for insubordination after complaining to an insurance adjuster (despite explicit instructions to the contrary) about certain fire alarm inspection reports being missing as part of a supposed scheme to set him up to be fired. Dohme v. Eurand America, Inc., 2011-Ohio-4609. As reported here in June and earlier in February 2008, “the Ohio Supreme Court heard oral argument about whether public policy wrongful discharge claims should be recognized when the employee did not “blow the whistle” to either a government agency or management about safety concerns, but rather, complained to a private sector insurance auditor about his paranoia of being set up to be fired due to an allegedly missing document about fire alarm inspections. The Court resolved the dispute on the very narrow grounds of the “clarity” element of a wrongful discharge claim. Because the plaintiff had failed to identify any law which permitted, encouraged or required him to express his concerns to the adjuster, the employer was perfectly justified to forbid unauthorized conversations with the adjuster and to fire the plaintiff for insubordination when he disregarded those explicit instructions. Vague concerns about workplace safety are insufficient to support a claim for wrongful discharge. Rather, citation to some legal authority is required:

[T]o satisfy the clarity element of a claim of wrongful discharge in violation of public policy, a terminated employee must articulate a clear public policy by citation to specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law. A general reference to workplace safety is insufficient to meet the clarity requirement.

Interestingly, the Court also noted that it was inappropriate for a court to sua sponte fill in a supposed public policy if the plaintiff fails to identify such a policy or law.

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.

Franklin County Court: Summary Judgment Reversed When Peer Review Privilege Might Not Apply to Protect Hospital

Last month, the Franklin County Court of Appeals reversed summary judgment in favor of Mount Carmel Hospital on a wrongful discharge claim brought by an Emergency Room physician on the grounds that the trial court improperly assumed that relevant evidence which the hospital refused to produce during discovery was protected by Ohio’s peer review privilege.

Thus, documents created by a peer review committee or exclusively for a peer review committee would be protected by the privilege. However, the Court concluded that a hospital could not shield documents it created itself by simply circulating them among the peer review committee.

If a health care entity itself is the original source, it cannot shield documents from disclosure just by circulating them during peer review proceedings. In other words, a health care entity must produce documents responsive to a document request if it created the document, the document was not generated by and/or exclusively for a peer review committee, and the document is available outside of any peer review committees' records (i.e., employees, affiliates, officers, or directors of the health care entity can access the document for non-peer review purposes).

Ultimately, the Court concluded that the trial court had failed to analyze whether the withheld documents were created by the hospital or the peer review committee and whether they would be covered by the privilege. “Absent evidence that the requested documents were created by and/or exclusively for a peer review committee, or generated by an original source and produced or presented to a peer review committee, the party asserting the R.C. 2305.252 privilege has not met its burden.” Therefore, the case was remanded to the trial court to evaluate the hospital’s privilege claim and to permit the plaintiff physician to complete discovery and revise his response to the hospital’s summary judgment motion if the hospital ultimately produced additional relevant evidence.


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.