According to the Court’s opinion, ODOT’s chief inspector chewed out a number of employees about a missing computer hard drive. The employee heard about the incident after the fact, told her husband about it and later faxed an anonymous complaint about the incident (written by her husband) to the OIG. The complaint said that the investigator twice “threatened employees by saying he was going to drop a bomb on District 5” if the hard drive did not appear by quitting time on Friday. The investigator allegedly "said it he was acting like a mad man. He was shaking his finger in the employees [sic] faces. He would ask a question but before you could answer he would start yelling again." The complaint also indicated that employees were afraid and did not want to return to work unless the investigator was removed. Remarkably, the OIG treated this as a bomb threat.
In its subsequent investigation, the employee initially denied any involvement in the complaint, but later admitted that she faxed it without reading it or knowing its contents. The OIG’s office found her to be evasive and uncooperative and subsequently wrote the ODOT Director to report that she "committed acts of wrongdoing by sending false statements to this office and providing false testimony under oath." Accordingly, ODOT suspended her for 30 days for failure of good behavior and failing to cooperate in an official investigation. She appealed the suspension to SPBR and claimed protection as a whistleblower under R.C. 124.341. The SPBR dismissed both claims for lack of jurisdiction. The SPBR did not have jurisdiction over a suspension or over whistleblower claims where the employee was not the author of the complaint. On appeal, the trial agreed.
R.C. 12.341 prohibits retaliation against employees who file reports. The relevant portion of the statute provides:
If an employee in the classified or unclassified civil service becomes aware in the course of employment of a violation of state or federal statutes, rules, or regulations or the misuse of public resources, and the employee’s supervisor or appointing authority has authority to correct the violation or misuse, the employee may file a written report identifying the violation or misuse with the supervisor or appointing authority. In addition to or instead of filing a written report with the supervisor or appointing authority, the employee may file a written report with the office of internal auditing created under section 126.45 of the Revised Code.
. . . If an appointing authority takes any disciplinary or retaliatory action against a classified or unclassified employee as a result of the employee’s having filed a report under division (A) of this section, the employee’s sole and exclusive remedy, notwithstanding any other provision of law, is to file an appeal with the state personnel board of review within thirty days after receiving actual notice of the appointing authority’s action.
The clear language of the statue only requires an employee to file a written report. The Court has recognized that “the primary objective of R.C. 124.341 is to protect state employees who report violations or misuse from retaliation." However, notwithstanding this fact, the Franklin County Court of Appeals has refused to protect employees who file reports under this statute unless they also wrote the report. According to the Court:
retaliation based on the mere transmission of a report is tenuous at best, explaining "the statutory scheme clearly contemplates that the employee making the report play a bigger role than that of mere courier . . . We thus concluded an employee's responsibility for delivering the writing is not sufficient to comply with the statute's reporting requirements.
In this case, the employee was indisputably suspended in part for her role in sending the complaint to the OIG. However, she “did not author the letter on which she now relies for whistleblower protection. Although [she] was responsible for the letter's transmission to the appropriate authority, her being a "mere courier," . . . is not sufficient. Simply causing the letter's transmission, without any part in the letter's authorship, does not meet the written report requirement under R.C. 124.341.” Moreover, her suspension was based on more than faxing the complaint to OIG; it was also based on her evasive and uncooperative behavior during the subsequent investigation.
It would be a more interesting case if the employee had claimed to be more than a “mere courier” and had, instead, admitted knowledge and agreement with the contents of the complaint as being the basis for her faxing it to the OIG.
Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-5857.pdf.
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.
