According to the Court’s opinion, the plaintiff discovered that the area’s
largest employer was releasing a “toxic substance” known as glycol into
wastewater during its twice annual plant shutdowns. This was contaminating the bacteria at the
wastewater plant which are used to process raw sewage and had contaminated the
sludge produced by the wastewater plant (which was sometimes used as farm fertilizer
and otherwise disposed of at the area landfill). The plaintiff reported to his supervisor and
the Village Council in September 2008 that the glycol was killing the bacteria
necessary to process raw sewage, was damaging the plant propellers and was
cause “toxic water” to potentially be sent downstream “where it would then
become a hazard to the drinking water for all users situated below the plant.” In addition, “[t]he dumping of the glycol
threatened to cause the Village to violate is permit; thereby exposing the
Village and its officials to criminal liability.”
He also reported to the Council that he
disagreed with his supervisor about the cost estimates to report some of these
issues and believed that some of the repairs could be accomplished at less
expense to the taxpayers. He provided a
written report to his supervisor specifying equipment failures, damage caused
by the glycol, etc. In addition, he also
continued to report to his supervisor other perceived violations by the
employer, including the amount of water it used and his suspicion that it was
using a separate source of fresh water.
In April 2009, he was given two weeks to resign or be fired. This lawsuit followed in October 2009. The plaintiff never filed any written
complaints with the county prosecutor or with the Ohio or federal EPA. The trial court granted summary judgment on
the ground that the environmental concerns expressed by the plaintiff were not
criminal in nature.
The Court found that the plaintiff-employee’s concerns related to
potential criminal liability from the alleged environmental violations:
The Village's permit
was governed by R.C. 3745 and 6111, specifically provisions of R.C. 6111.60 and
OAC 3745-33 and/or 3745-38. The permit specifies the levels of various
compounds, chemicals or elements permitted in the water and returned to the
state's water supply following treatment. If the levels are exceeded, the
Village is violating the law. R.C. 2927.24(B)(1) makes it unlawful to knowingly
place a hazardous chemical or harmful substance in a public water supply. The
statute provides for criminal penalties. Accordingly, we find Appellant
complained of criminal conduct.
The Court of Appeals found that
to come within the whistleblower statute at R.C. §4113.52, an employee need to
provide an oral and written report to the employee’s supervisor or other
responsible officer of the employer. The
employee may also “file a written
report that provides sufficient detail to identify and describe the violation
with the prosecuting authority of the county or municipal corporation where the
violation occurred, with a peace officer, with the inspector general if the
violation is within the inspector general's jurisdiction, or with any other
appropriate public official or agency that has regulatory authority over the employer
and the industry, trade, or business in which the employer is engaged.”
Further, the Court found it irrelevant that the plaintiff-employee never
reported the alleged violation to the EPA:
The statute provides the employee "may
notify, either orally or in writing, any appropriate public official or
agency." There is no requirement Appellant actually file an additional
written report with an enforcement agency in order to obtain protection under
R.C. 4113.51(A). Oral disclosures are afforded protection under the statute,
and the employer may not retaliate against the employee on account of the oral
report. . . . Furthermore, we find the Village has authority to correct the alleged
illegal activity of CYT, even if the Village was not directly involved in
criminal activity.
While the
Court found that the plaintiff should survive summary judgment on his whistleblower
claim, it agreed that it was proper to dismiss his common law claim for
wrongful discharge in violation of public policy because the whistleblower
statute contained sufficient remedies and discouraged the wrongful conduct to
the extent that a common law claim was not necessary. “We find the
remedies provided in Appellant's statutory whistleblower claims adequately
protect society's interest in discouraging the wrongful conduct at issue.” Therefore, he could not satisfy the “jeopardy”
element of the wrongful discharge claim.
