Court Protects Whistleblower Report That Was Mandated by Employer

Earlier this month, the Mahoning County Court of Appeals reversed the dismissal of an attorney whistleblower complaint by the State Personnel Board of Review.  Desmond v. Mahoning Cty. Pros. Office, 2019-Ohio-4089.  The complaining attorney had been fired more than two months after being ordered to submit a memorandum detailing his prior allegations against a co-worker which he had failed to previously raise with his superiors and had already been the subject of a threatened lawsuit, but had shared with the attorney of an adverse party who drafted the lawsuit’s complaint.  The Court summarized that: “R.C. 124.341 contains no time frame for making a report, it contains no requirement that a supervisor be unaware of the conduct reported, and it does not specify that the protections of the statute will be lost if an employee is directed by his employer to make a report.  We also find that R.C. 124.341 does not except from whistleblower protection reports of attorney misconduct under the Ohio Rules of Professional Conduct.”   


According to the Court’s opinion, the complainant discovered that a co-worker who had taken over one of his cases was engaging in unprofessional behavior by, among other things, pursuing an indictment against a material witness for refusing to testify against an alleged murderer by invoking his fifth amendment privilege and by misrepresenting to the judge the witness’s stated intent to flee the state if released after the indictment was dismissed in order to keep that witness in jail.   Instead of sharing his concerns with management, he shared them with the witness’s attorney, who ultimately filed a complaint with civil rights charges and provided it to the employer.  He later texted his supervisor that the co-worker had mishandled the case and was directed to prepare a memorandum detailing his knowledge and concerns for the ongoing investigation into the allegations against the co-worker.  Despite agreeing to do so promptly, he required a reminder weeks later and a direct order more than a month later before he finally submitted the memorandum.  He was fired more than two months after that for, among other things, becoming an adverse witness to the employer through his communications to the witness’s attorney, failing to bring the concerns to management earlier and making false allegations against the co-worker, etc.  He appealed his termination to the SPBR, which dismissed for lack of jurisdiction on the grounds that his actions did not constitute protected whistleblowing under the statute.  The Court reversed. 


The Court agreed that the complainant’s text messages -- alleging that his co-worker “mishandled” the case and that some of the allegations against her were true – were not covered by the whistleblower statute because they were too ambiguous and did not allege illegal conduct.  However, the memorandum which he submitted was covered by the statute even though (1) he was ordered to submit it for face disciplinary action for insubordination and (2) covered issues of attorney professional conduct.   There is no exception in the statute for violations of the Rules of Professional Responsibility.  Further, the memorandum also implicated violations of federal civil rights laws and other prosecutorial misconduct. 


In addition, the Court determined that good faith was not absent merely because the complainant had been ordered to submit the memorandum to his employer which already knew the underlying allegations and was already investigating them.  

Turning to the good-faith requirement adopted by SPBR, R.C. 124.341 contains no express “good faith” requirement, except to the extent that it requires the employee “to make a reasonable effort to determine the accuracy of any information reported * * *.”  R.C. 124.341(C).  It provides no time frame for making a report, it contains no requirement that a supervisor be unaware of the conduct reported, and it does not specify that the protections of the statute will be lost if an employee is directed by his employer to make a report.  It was, therefore, not appropriate to deny jurisdiction on this basis.

Indeed, a whistleblower does not loose statutory protection merely because the covered written report was a mandatory duty as opposed to an independent offer.  Analogizing the situation to a sexual harassment complaint under Title VII as discussed in   Crawford v. Metropolitan Govt. of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 277–78, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009) :

The court concluded that “nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.”  Id. at 851.  We agree with this reasoning.  And we further emphasize, again, that if the legislature intended to protect only employees who identify violations independently—and not on the command of their employer—it could have expressly stated this in the 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.

Franklin County Appeals Court Remands Incentive Compensation Claim and Dismisses Whistleblower and Reverse Discrimination Claims

Last week, a unanimous Franklin County Court of Appeals affirmed the dismissal on summary judgment of whistleblower and reverse race discrimination claims, but remanded the highly-compensated plaintiff’s equitable claims for a six-figure profit bonus on the grounds that the written bonus plan was unenforceable to bar his equitable claims because there was no evidence that the plaintiff knew about or had agreed to its terms and because the employer’s “promises” to award a bonus in its unfettered discretion were illusory. Pohmer v. JPMorgan Chase Bank, N.A., 2015-Ohio-1229 (3-31-15).  In affirming the dismissal of the race discrimination claim, the Court agreed that the plaintiff had not shown that the defendant employer was unusual in discriminating against the majority, that he was similarly situated to his supervisor, or that the explanation for his termination (violating the employer’s technology policy by inappropriate and personal use of his blackberry and email) was pretextual.  He could not prevail on his whistleblower claim because he could not prove that he had ever made any relevant complaints to his employer in writing and the trial court did not abuse its discretion in refusing to compel additional electronic discovery that was unlikely to reveal additional relevant evidence without exorbitant costs. 

According to the Court’s opinion, the plaintiff had received very favorable performance evaluations for over a decade, the most recent of which was in December 2011.  He had been assured in writing that he would be receiving a 4.5% profit bonus for 2011.  However, in a random review of his text messages and emails, the employer discovered that he had been sending inappropriate sexual-themed emails and messages to his children’s babysitter and co-workers in violation of the employer’s technology code of conduct.  He was soon terminated in mid-January 2012.  A few days later, the employer set the amount of discretionary incentive compensation and awarded bonuses to remaining employees a few weeks later.  The plaintiff filed suit and alleged, among other things, that he was subjected to reverse race discrimination because his supervisor also sent inappropriate emails and was not fired.  Second, he claimed that he had actually been fired in retaliation for reporting to his supervisor that one of the employer’s financial product campaigns was an illegal scam.  However, he could not produce any written evidence that he had ever made such an allegation prior to his termination despite the employer’s production of thousands of pages of emails and texts messages.  He also claimed that he was entitled to his profit bonus since he had earned it prior to his termination.

Incentive Compensation.  The trial court had dismissed his claim for his incentive compensation on the grounds that the employer’s Performance Based Incentive Compensation Plan (PBIC) was a binding implied-in-fact contract, thus barring any equitable claim under the theories of unjust enrichment or quantum meruit.   Pursuant to the terms of the PBIC, the Plaintiff was not entitled to any profit bonus or incentive compensation unless he was still employed on the date when the profit bonus was actually paid.  However, the Court of Appeals found that the PBIC could not be a contract since there was no evidence that the plaintiff even knew about the PBIC, let alone agreed to it.   All that the employer produced was an unsigned plan document and not any communications to the Plaintiff about the PBIC or indication that the Plaintiff’s employment and incentive compensation were subject to the PBIC.  Moreover, to the extent that the PBIC contained any promises, they were illusory (and thus, non-binding) since the employer retained “sole and absolute discretion” as to when, whether, and in what amount to award bonuses.  In contrast, the plaintiff produced evidence of a powerpoint presentation about the incentive compensation he was eligible to earn for that year and an email from his supervisor about the percentage of his profit bonus; neither exhibit made any reference to the PBIC or any requirement that he needed to still be employed on the date that the bonus was paid.

The doctrine of unjust enrichment “applies when a benefit is conferred and it would be inequitable to permit the benefitting party to retain the benefit without compensating the conferring party.” . . . A claim for quantum meruit shares the same essential elements as a claim for unjust enrichment, and both doctrines are equitable doctrines.  . . .  the two doctrines differ, however, when calculating damages.  The damages for unjust enrichment are " ' "the amount the defendant benefited," ' " while the damages for quantum meruit are " ' "the measure of the value of the plaintiff's services, less any damage suffered by the other party." ' "

 . . . 

"A contract is illusory only when by its terms the promisor retains an unlimited right to determine the nature or extent of his performance; the unlimited right, in effect, destroys his promise and thus makes it merely illusory." . . . . In deciding that the PBIC Plan is an illusory contract with respect to [the plaintiff], we do not mean to say that the PBIC Plan would be illusory under all circumstances. This is not a case where [the plaintiff] was made aware of the terms of the PBIC Plan and thereby assented to the PBIC's terms in exchange for his continued employment with JPMC.

Reverse Race Discrimination.  The Court of Appeals affirmed the dismissal of this claim because the Plaintiff failed to meet his prima facie case or show that the employer’s explanation was pretextual.  First, the Court adopted the heightened burden of proof for a reverse race discrimination claim, which requires evidence of “background circumstances supporting the inference that [the defendant employer] was the unusual employer who discriminated against non-minority employees.”  The plaintiff could not meet this burden, although he correctly argued that some courts have questioned the correctness of using a modified burden of proof in any race discrimination claim.    

In any event, the Court found that the Plaintiff did not identify any similarly situated non-white employees who were treated better.   The Plaintiff identified his supervisor for sending inappropriate personal emails because he only received a disciplinary warning, but the Court found him not to be similarly situated “in all respects” (i.e., “ 'all of the relevant aspects of his employment situation were "nearly identical" to those of the [comparable employee's] employment situation.'").  

Thus, to be deemed "similarly situated," "the comparables 'must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.'

They obviously did not report to the same supervisor.  “[A] supervisor's "position of authority within the company create[s] a meaningful distinction" that "explains [the employer's] different treatment of the two.” More importantly, the employer did not learn of the supervisor’s alleged misconduct until the plaintiff raised it after his termination (presumably during his deposition).  “Other factors may have been at play including a discrepancy in the volume, frequency, and level of inappropriateness contained in the emails of each of the two men.”  

Ultimately, the Court found that the plaintiff could not show that his termination for admittedly violating the employer’s code of conduct was pretextual.   He could not “demonstrate that the proffered reason ‘(1) has no basis in fact, (2) did not actually motivate the employer's challenged conduct, or (3) was insufficient to warrant the challenged conduct.’"  Importantly, he could not show that the employer knew of any other similar violations of the code of conduct (including that of his supervisor) at the time of the Plaintiff’s termination in January 2012.   

Whistleblowing.  The trial and appellate courts both concluded that the plaintiff could not prevail on his whistleblower claim because he could not satisfy the statutory requirement that the complaint be made in writing to the employer after first making a verbal report.  The employer had produced several thousand pages of documents in discovery, including emails and text messages.  The plaintiff insisted that he had texted and/or emailed his supervisor (in addition to personal conversations) about his objections to the legality of a product campaign.  However, his alleged objections were not reflected in the documents produced in discovery.  Therefore, he could not satisfy his statutory burden of proof under Ohio’s whistleblower statute.   

The Plaintiff filed a motion to compel a forensic examination of his email and text mail boxes to ensure that none of his messages were inappropriately deleted by the defendant employer.  However, the trial court denied that discovery motion on the grounds that it was “unlikely to lead to admissible evidence and disproportionately costly.”  The appellate court found this not to be an abuse of discretion in light of the thousands of pages produced in discovery.  Moreover, it noted that the Plaintiff’s  

argument has less to do with the adequacy of the discovery process and more to do with [his] dissatisfaction that he did not discover sufficient evidence to support his claims. The trial court noted it had made an effort throughout the case "to keep discovery proportionate to the issues, and to sensibly minimize the financial cost and time burden which electronic discovery might otherwise require."

Indeed, the supervisor denied ever receiving such a written report and the Plaintiff failed to mention any written objections about the product campaign in his own deposition.

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.

Ohio Supreme Court Finds Broad Statutory Whistleblowing Protection for Patient Abuse

Less than a week after rejecting a different whistleblower claim for not strictly complying with the applicable whistleblower statute, the Ohio Supreme Court this morning approved a whistleblower retaliation claim brought by a nurse who was terminated by a hospice employer after reporting suspected patient abuse to a nursing home and patient family. Hulsmeyer v. Hospice of Southwest Ohio, Inc., Slip Opinion No. 2014-Ohio-5511.  As reported here last year, the plaintiff alleged that she was terminated by her hospice employer in retaliation for reporting patient abuse (that had been reported to her by a subordinate) to the nursing home of the patient which had allegedly been abused and the patient’s family.  The employer had successfully argued to the trial court that her report was not protected by R.C. § 3721.24 because she did not report or threaten to report the potential patient abuse to the Ohio Director of Health.  On appeal, the Court held that an employee or contractor “who reports or indicates an intention to report suspected abuse or neglect of a long-term care-facility or residential-care-facility resident is not required to report or indicate an intent to report the suspected abuse or neglect to the Ohio director of health in order to state a claim for retaliatory discharge under R.C. 3721.24.”  The Court refused to address whether the plaintiff had stated a common law wrongful discharge claim in her complaint.

 According to the Court’s opinion, the plaintiff had alleged in her complaint that she had received a report from one of her subordinates that a patient had been bruised, presumably by the nursing home staff where she resided.  The nurse had taken pictures of the bruises.  The plaintiff had been advised by a social worker and staff physician to report this to the nursing home and the patient’s family.  She claims that she also reported this to her own boss before she discussed it with the nursing home and patient family.  However, a few weeks later, she was terminated for bringing the issue to the nursing home and patient family and authorizing the pictures to be taken of the patient without first informing or obtaining authorization from her employer.

The statute which prohibits retaliation against employees or contractor for reporting suspected patient abuse is silent about where the report must be made to come within coverage of the statutory protection.  R.C. § 3721.24 states in relevant part that: 

(A) No person or government entity shall retaliate against an employee or another individual used by the person or government entity to perform any work or services who, in good faith, makes a report of suspected abuse or neglect of a resident or misappropriation of the property of a resident; indicates an intention to make such a report; provides information during an investigation of suspected abuse, neglect, or misappropriation conducted by the director of health; or participates in a hearing conducted under section 3721.23 of the Revised Code or in any other administrative or judicial proceedings pertaining to  the suspected abuse, neglect, or misappropriation. For purposes of this division, retaliatory actions include discharging, demoting, or transferring the employee or other person, preparing a negative work performance evaluation of the employee or other person, reducing the benefits, pay, or work privileges of the employee or other person, and any other action intended to retaliate against the employee or other person.

The defendant employer argued that this silence makes the statute ambiguous and should be interpreted to refer to an earlier statutory section which covers licensed healthcare professionals and others, including residents of long-term care and residential facilities, at R.C. § 3721.22.  That section requires licensed healthcare professionals to report suspected abuse to the Director of Health, permits residents and others to make such reports and protects them from criminal and civil prosecution.   However, §3721.24 covers a different groups, such as any employees (rather than merely licensed professionals) and contractors.  The Court found this difference to be significant:

Providing employees broader reporting options than those found in R.C. 3721.22 is consistent with the purpose of preventing retaliation against employees. Employees may be more likely to report suspected abuse or neglect to someone other than the director of health, such as a resident’s family member or a coworker.   

The Court also found the anti-retaliation provision was not ambiguous by omitting where reports of suspected abuse were to be made.   

Because the General Assembly enacted R.C. 3721.22 and 3721.24 in the same bill, we presume that the absence of any requirement in R.C. 3721.24 that a report, or intent to report, suspected abuse or neglect must be made to the director of health was intentional. If the  General Assembly had intended to afford protection to only those employees who reported, or indicated an intention to report, suspected abuse or neglect to the director of health, it could have done so by inserting the words “to the director of health” after the word “report” in R.C. 3721.24(A), or by incorporating the requirement from R.C. 3721.22. It did neither. And we will not add those words by judicial fiat.

The lone dissent agreed with the employer that §3721.24 should be interpreted to be consistent with §3721.22.  However, Justice French also would have found a public policy wrongful discharge claim to exist from the allegations in the Complaint.  

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 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. 

                . . .

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.

Ohio Court of Appeals Reverses Employer’s Summary Judgment on Whistleblower Claim

On Monday, the Ohio Court of Appeals reversed a public employer’s summary judgment on the whistleblower claim of an employee terminated from a wastewater treatment plant who objected to his supervisor and the Village Council about the allegedly unlawful water pollution by the area’s largest employer.  Lee v. Cardington, 2013-Ohio-3108.  The Court found that the employee’s oral report to his supervisor and Village Council (which was followed with a written report) was sufficient to bring him within Ohio’s whistleblower statute even though he never followed his complaints with a written report to the Ohio or federal EPA or other enforcement agency.  Rather, the Court found that R.C. § 4113.51(A) did not require the plaintiff employee to “actually file an additional written report with an enforcement agency in order to obtain protection” under the statute.  “Oral disclosures are afforded protection under the statute, and the employer may not retaliate against the employee on account of the oral report.”  In addition, the Court found that the Village had the authority to correct the allegedly unlawful environmental violations of the employer even if it was not directly involved in criminal activity itself.

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.

 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 of Appeals: Whistleblower Protection Is Not Available When Employee Submitted Complaint to OIG Which She Did Not Write Herself.

Yesterday, the Franklin County Court of Appeals affirmed the dismissal of a civil service proceeding where an administrative assistant was placed on 30-day suspension for submitting a complaint to the Office of Inspector General about an incident in her workplace because her husband wrote it for her and she was less than honest about the circumstances during the investigation. Ressler v. Ohio Dept. of Transp., 2009-Ohio-5857. The Court agreed that she was not entitled to protection under Ohio’s Whistleblower statute because her husband wrote the complaint instead of her even though she was the person who admittedly submitted the complaint to the OIG.

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.

Ohio Court Dismisses Physical Therapist's Public Policy and Whistleblower Claims Against Non-Profit Employer For Not Alleging Criminal Misconduct.

Late last month, the Montgomery County Court of Appeals affirmed the summary judgment entered for a non-profit employer of a physical therapist who had claimed that she had been wrongfully discharge in violation of public policy and Ohio’s Whistleblower statute. Duvall v. United Rehabilitation Servs. of Greater Dayton, 2008-Ohio-6231. The court held that the public policy claim failed because the Ohio statute which prohibited professional associations from interfering with the professional judgment of a physical therapist did not apply to non-profit employers. In addition, the court held that the whistleblower statute only applied to allegations of criminal conduct, which the plaintiff had not raised before being terminated.

According to the court’s opinion, the plaintiff provided hydrotherapy to patients in a heated swimming pool. Before being terminated, she had complained to her employer about the temperature of and amount of chlorine in the pool. She also complained “about the fact that URS required her to obtain a supervisor’s approval in order to suspend or discontinue hydrotherapy regimen for patients.” She ultimately was fired for placing “a patient with cerebral palsy in a supine position in the pool despite her knowledge that the patient was afraid of being placed in such a position” in violation of a “policy which prohibited staff from using “idiosyncratic aversives that are frightening to the consumer.’”

In her claim, the plaintiff alleged that the employer violated Ohio Revised Code § 1785.03, which provides in pertinent part that “[n]o professional association formed for the purpose of providing a combination of the professional services *** of *** physical therapists authorized under sections 4755.40 to 4755.56 of the Revised Code ***shall control the professional clinical judgment exercised within accepted and prevailing standards of practice of a licensed *** physical therapist *** rendering care, treatment, or professional advice to an individual patient.” As mentioned, the court rejected this claim because the non-profit employer was not subject to R.C. 1785.02 and no similar statute applied to non-profit organizations. Further, the court likewise rejected the plaintiff’s claim that the employer’s attempt to supervise her violated Ohio Administrative Code. §4755-27-02, which precluded licensed physical therapists from delegating their professional duties and responsibilities. Rather, the court noted that there is no statutory or administrative prohibition on all supervision of physical therapists.

Finally, the court followed prior interpretations of Ohio Revised Code § 4113.52, which prohibits an employer from taking disciplinary or retaliatory action against an employee for reporting criminal violations of certain laws. Because none of the complaints made by the plaintiff about the pool’s temperature or chlorine level involved criminal actions, none of those complaints were protected by the whistleblower statute.

Insomniacs may read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/2/2008/2008-ohio-6231.pdf.