Sixth Circuit: Terms of Arbitration Clause Did Not Govern Statutory Retaliation Claims

On Thursday, the Sixth Circuit reversed the dismissal of whistleblower/retaliation claims brought under the federal False Claims Act on the grounds that the applicable arbitration clause only governed disputes which arose under the terms of the employment agreement and not independent statutory claims.  U.S. v. BAE Systems Technology Solutions & Services, Inc., No. 13-2237 (6^th Cir. 5-22-14). The plaintiffs brought a qui tam action alleging that their former employer defrauded the government and retaliated against them for complaining and reporting the misconduct.   The district court dismissed the FCA claim and referred the retaliation claim to arbitration.  However, the Sixth Circuit reversed the referral to arbitration on the grounds that the arbitration clause did not govern the dispute.  The arbitration clause applied only to “dispute[s] arising from this Agreement” and, unlike other arbitration clauses, did not explicitly incorporate any dispute related to the employee’s employment or termination.  Accordingly, because the plaintiffs’ claims arose from an alleged statutory violation and were not dependent on the terms of their employment agreement, the arbitration clause did not apply.

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.

ERISA Does Not Protect Opposition to Statutory Violations or Internal Complaints without a Proceeding or Inquiry

On Friday, a divided Sixth Circuit Court of Appeals affirmed the summary judgment dismissal of a “whistleblower” claim that was found to be governed, and completely preempted, by ERISA.   Sexton v. Panel Processing, Inc. , No. 13-1604 (6^th Circ. 5-9-14).  In that case, the plaintiff was terminated approximately six months after he protested the employer’s refusal to sit additional employees who had been elected to the Board of Directors and its removal of him from a trustee position with the company’s retirement plan.  He emailed the Board Chairman alleging, among other things, that his removal as a trustee violated ERISA and if not rectified, he would report the violations to the DOL.  The Company did not respond to his email and he never filed a complaint with the DOL.   He ultimately filed a wrongful discharge lawsuit, which was removed by the employer to federal court under ERISA.  The Court found that, unlike Title VII, the FLSA and other statutes, ERISA protects only an employee’s participation in a “proceeding” or “inquiry” relating to ERISA.  It does not contain an opposition clause which would protect unsolicited complaints, like the one made by the plaintiff. 

Section 1140 of ERISA provides in relevant part:

It shall be unlawful for any person to discharge, fine, suspend, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this chapter or the Welfare and Pension Plans Disclosure Act.

The parties agreed that there was no proceeding in place.  The Court found that the “giving of information” included “any” information, including information about a claim for benefits which did not relate to alleged violations of ERISA.   The Court also concluded that there was never any “inquiry,” no matter how the term was interpreted because there was never any investigation or question posed about his allegation.  Because there was never any proceeding or inquiry made by the employer or the DOL, this anti-retaliation provision could not apply.  The Court was even reluctant to broaden the meaning of this statute to include unsolicited complaints which ultimately lead to an inquiry, investigation or proceeding.    The Court also rejected attempts to analogize this statute to Title VII or the FLSA because those statutes specifically protected an employee’s opposition to unlawful practices.   Unlike those statutes, ERISA contains additional enforcement mechanisms (such as criminal prosecution and reporting requirements) which could explain why Congress chose not to include an opposition clause for employees.

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.

Supreme Court: SOX Whistleblower Protections Cover Employees of Subcontractors and Contractors of Public Companies

Today, the Supreme Court issued a 6-3 decision holding that the whistleblower protection provisions of the Sarbanes-Oxley Act extend to the employees of subcontractors and contractors of public companies (i.e., companies whose stock is publicly traded).   Lawson v. FMR LLC, No. 12-3 (U.S. 3-4-14).  In that case, the public company – a mutual fund – had no employees, but contracted with the defendant investment advisor to manage and advise the fund.  Former employees of the investment advisor alleged that they had been retaliated against in violation of the SOX Act at 18 U. S. C. §1514A(a).  The defendant argued that SOX only prohibited retaliation against the employees of a public company by a contractor – such as George Clooney’s character in Up in the Air -- and did not apply to the employees of a contractor or subcontractor.  The Supreme Court disagreed.    First, a common sense and ordinary reading of the statutory language indicates that Congress meant to prevent contractors from retaliating against their own employees.  Contractors are rarely in a position to retaliate against the employees of a customer and it would not make sense to prevent contractors from retaliating against a customer’s employees while permitting them to retaliate against their own.  In addition, this construction is consistent with the Act’s purpose to protect whistleblowers.  Moreover, adopting the defendant’s interpretation would insulate virtually all mutual funds from the whistleblower protection provisions since few – if any – of them have employees of their own.

The relevant statutory language provides:

 

“No [public] company . . . , or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of [whistleblowing or other protected activity].” §1514A(a) (2006 ed.).

The defendant argued that the statutory language including coverage to contractors and subcontractors was meant only to apply to professional ax-wielders like George Clooney’s character in Up in the Air.  However, the Court’s majority saw no indication that this issue is what motivated Congress to include coverage for contractors and subcontractors.  Rather, it saw the concern as the retaliation against former accountants at Arthur Anderson, Enron’s former accounting firm.  Moreover, other language in SOX refers to the respondent as the “employer,” which would be the protected employee’s employer.  In addition, the remedies provided by SOX include reinstatement, which would be impossible for a contractor or subcontractor to effectuate if the statute only covered employees of the public company customer.

The defendant further argued that the statutory language was not meant to cover employees of non-public companies because otherwise it would apply to employees of company officers and employees, such as gardeners and nannies.  While the Court agreed this was a logical argument, it nonetheless dismissed it:

Nothing suggests Congress’ attention was drawn to the curiosity its drafting produced. The issue, however, is likely more theoretical than real. Few house­keepers or gardeners, we suspect, are likely to come upon and comprehend evidence of their employer’s complicity in fraud.

The defendants also argued that the statute’s subheadings indicated that it was only meant to protect the employees of public companies.

This Court has placed less weight on captions. In Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519 (1947), we explained that where, as here, “the [statutory] text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner.” Id., at 528. The under-inclusiveness of the two headings relied on by the Court of Appeals is apparent. The provision indisputably extends protection to employ­ees of companies that file reports with the SEC pursuant to §15(d) of the 1934 Act, even when such companies are not “publicly traded.” And the activity protected under§1514A is not limited to “provid[ing] evidence of fraud”; it also includes reporting violations of SEC rules or regula­tions. §1514A(a)(1). As in Trainmen, the headings here are “but a short-hand reference to the general subject matter” of the provision, “not meant to take the place of the detailed provisions of the text.” 331 U. S., at 528. Section 1514A is attended by numerous indicators that the statute’s prohibitions govern the relationship between a contractor and its own employees; we do not read the headings to “undo or limit” those signals.

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.

Hospice Whistleblower Is Protected Without Report to Ohio Director of Health

Yesterday, the Hamilton County Court of Appeals reversed summary judgment entered in favor of an employer, its CEO and its client on a whistleblower claim brought by a former hospice nurse.  Hulsmeyer v. Hospice of Southwest Ohio, Inc., 2013-Ohio-4147.  The plaintiff nurse alleged that she had been terminated for reporting suspected patient abuse.   The trial court had dismissed the statutory whistleblower claim on the basis that the plaintiff had only reported the suspected patient abuse to her supervisor, nursing home management and the patient’s daughter, and not to the Ohio Department of Health.   However, the Court of Appeals found that claims of abuse were protected even if they were only raised internally and not taken to the ODH.  Still, the Court of Appeals affirmed the dismissal of the claim for wrongful discharge in violation of public policy on the grounds that the whistleblower statute provided adequate protection.

According to the Court’s opinion, in that case, the plaintiff nurse allegedly reported within 24 hours suspected patient abuse to her supervisor, the nursing home’s nursing director and the patient’s daughter.   Apparently, the nursing home’s nursing supervisor had not informed her management and did not call the patient’s daughter as promised.  After the passage of almost a week, the patient’s daughter insisted on a resolution and a meeting was held.  During the plaintiff’s unrelated medical leave of absence, a regional manager of the nursing home demanded that the hospice employer do something about the plaintiff for reporting the suspected abuse to the patient’s daughter and shared that the nursing home had terminated its nursing director because of the incident.  When the plaintiff returned to work, she was called to attend a meeting and conference call with the nursing home’s regional manager, who admonished her for making the nursing home look bad, stirring up problems, permitting photographs of the patient to be taken and calling the family.  She also indicated that the nursing home would stop recommending her hospice employer.  Two days later, she was fired – purportedly for not notifying the Hospice’s management in a timely manner about the suspected abuse and for calling the patient’s family.

The plaintiff filed suit under public policy and Ohio Revised Code 3721.24, which provides in relevant part:

(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.

 . . .

 

(B)    . . . If [a court] finds that a violation has occurred, the court may award damages and order injunctive relief. The court may award court costs and reasonable attorney's fees to the prevailing party.

The trial court read this statute together with §3721.22 which requires medical professionals to report suspected abuse to the Director of Health.   The Court of Appeals found that this particular statute did not require the employee to report the suspected abuse to the Director of Health in order to come within the statutory protection.  Otherwise, the statute could have made this more clear by inserting “to the director of health” after “makes a report” or referring to §3721.22.

In addition, the Court agreed with the plaintiff that the whistleblower statute permitted her to sue not only her own employer for retaliation, but also the nursing home where she often provided hospice services and was ”used by” the defendant nursing home to perform work.

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 Finds Potential Whistleblower Claim From Hiring Manager’s Unusual Hiring Practices

Last month, the Sixth Circuit Court of Appeals reversed a summary judgment entered in favor of an employer on a whistleblower claim brought under a variety of federal environmental statutes by the employee of a predecessor contractor on a federal project.  Vander Boegh v. EnergySolutions, Inc. No. 12-5643 (6^th Cir. 8-14-13).  The plaintiff had filed a number of whistleblower claims against his current employer and, after the federal contract was awarded to a new contractor (i.e., the defendant employer), filed additional whistleblower claims with the Department of Energy during the transition of the contract when it appeared that he would not be retained in the job he had held for more than 20 years.  The Court rejected most of the arguments brought by the non-hired landfill manager.  However, it found the hiring manager’s behavior to be suspicious when he never posted the job, hired a non-certified individual to be the new landfill manager, conducted no interviews and never considered the plaintiff.  Despite the hiring manager’s protestations to the contrary, the Court found it unlikely that he had not independently discovered from the DOE’s website as part of his assigned “due diligence”  that the plaintiff had already filed whistleblower claims before the hiring decision was made.  Accordingly, it concluded that this suspicious behavior was sufficient for a jury to conclude that the plaintiff was not hired in retaliation for his protected conduct.  However, the Court also directed the District Court to consider on remand whether the hiring manager was the “cat’s paw” for his subordinates who possessed actual knowledge of the plaintiff’s behavior and whether the plaintiff even had standing to assert a claim under the Federal Claims Act when he had never been employed by the defendant employer.

A DOE hearing officer had found one of the plaintiff’s whistleblower claims of retaliation to be well-founded and ordered his then-employer to maintain his employment for at least a year.  His claims still had not been resolved by the time a new contractor was selected to manage the project.  When he suspected that he was not going to be hired by the new employer (who had already hired a former supervisor who had retaliated against him in the past), he filed new whistleblower claims, which were eventually brought in federal court. 

The Court found that these claims are adjudicated much the same as retaliation claims brought under other federal employment laws.

“To state a claim under the whistleblower provision of an environmental statute, the plaintiff must establish that his employer retaliated against him because he engaged in a protected activity.” Sasse v. U.S. Dep’t of Labor, 409 F.3d 773, 779 (6th Cir. 2005). In general, a prima facie case of retaliation requires the plaintiff to show that (1) he engaged in protected activity; (2) the employer had knowledge of the protected activity; (3) he suffered an adverse employment action; and (4) a causal connection existed between the protected activity and the adverse employment action.  . . . Similarly, the ERA requires the plaintiff to demonstrate that (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) the protected activity was a “contributing factor” in the adverse employment action. 42 U.S.C. § 5851(b)(3)(C).

One of the plaintiff’s claims involved his former supervisor preparing the bid for the new contractor and submitting his own qualifications for landfill manager in place of the plaintiff.   The Court found this to be a sufficient adverse action for purposes of a retaliation claim:

Actionable retaliation is not limited to so-called “ultimate employment decisions” that adversely alter the terms and conditions of employment. Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 64, 67 (2006) (“A provision limited to employment-related actions would not deter the many forms that effective retaliation can take.”). Rather, an adverse employment action in the retaliation context requires a showing “that a reasonable employee would have found the challenged action materially adverse, which . . . means it well might have dissuaded a reasonable worker from [engaging in protected activity].”

 As with regular employment retaliation claims, the decisionmaker’s knowledge at the time of the decision is paramount. 

“The decisionmaker’s knowledge of the protected activity is an essential element of the prima facie case of unlawful retaliation.” Frazier v. USF Holland, Inc., 250 F. App’x 142, 148 (6th Cir. 2007) (citing Mulhall v. Ashcroft, 287 F.3d 543, 551 (6th Cir. 2002)). Actual knowledge can be established through direct evidence that the decisionmaker knew of the protected activity or through circumstantial evidence from which a reasonable jury could infer that the decisionmaker knew of the protected activity. Mulhall, 287 F.3d at 552–53. A decisionmaker’s disavowal of knowledge may be rebutted with countervailing evidence. See Lippert v. Cmty. Bank, Inc., 438 F.3d 1275, 1282 (11th Cir. 2006).

The Court rejected the plaintiff’s attempts to postpone the date of the decision until after he had hard evidence of the decisionmaker’s knowledge. Nonetheless, this was not fatal to his claim.  The Plaintiff argued that “an employer’s failure to follow its normal procedure can provide circumstantial evidence of a retaliatory motive and, thus, actual knowledge of protected activity. See DeFord v. Sec’y of Labor, 700 F.2d 281, 287 (6th Cir. 1983).”  In particular, he argued that the fact that he was not grandfathered like other employees was evidence of unusual procedures.  However, “[o]nly “non-managerial” employees are considered “grandfathered” under the contract, and the landfill manager position is specifically denoted as “managerial.”

 Nonetheless, other circumstantial evidence supported the Plaintiff’s claim of retaliation.  He

filed a complaint with DOE on February 21, 2006, and another on February 24, 2006. These complaints were readily available on DOE’s website. Further, [the decisionmaker] was responsible for overseeing the transition of landfill operations and managing “due diligence” during the transition period, specifically in the area of material disposition. Despite his due diligence responsibility, [the decisionmaker] declined to so much as interview [the plaintiff], who has well over a decade of experience as a certified landfill manager.

We conclude that a reasonable jury could infer that Kelly, the individual responsible for performing due diligence in the area of material disposition, would have discovered environmental complaints regarding the landfill’s leachate storage capacity, either through the DOE’s website or through other channels. Kelly was also responsible for hiring a landfill manager. Under these circumstances, it was likewise reasonable for a jury to infer that, as part of the hiring process, Kelly would have acquired information regarding the current landfill manager and his protected activities, even though he ultimately selected Corpstein. These duties, after all, were part of Kelly’s job. The dissent describes Kelly as “a very busy man” with “a busy schedule and numerous responsibilities.” This only furthers our point. Kelly’s job duties included performing due diligence and hiring a landfill manager—these were the tasks with which Kelly allegedly “busied” himself.

On remand, the Court directed the District  Court to consider whether the decisionmaker was a cat’s paw for individuals with actual knowledge of the plaintiff’s protected activities.  The Court also directed the District Court to consider whether the plaintiff had standing to sue the new contractor under the Federal Claims Act when he had never been an employee or contractor for it. See 31 U.S.C. § 3730(h)(1) (limiting relief from retaliatory acts to “any employee, contractor, or agent”).”

 

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.

It’s Baaaackkk! Dohme Again Makes it to Oral Arguments Before Ohio Supreme Court

Yesterday was déjà vu all over again at the Ohio Supreme Court as the Dohme case had its second appearance before the Court in oral argument. As previously reported here 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 in a document of fire alarm inspections.”

A law school classmate, Todd Penny, again argued the case for the employer. According to the 2007 opinion of the Montgomery County Court of Appeals, the employer’s insurance company was conducting a risk assessment in connection with developing a price quote. As had been done in the past, the employer informed staff about the inspection and directed that only certain designated employees were to communicate with the insurance company employee. (It later explained that this was to ensure that the insurance company only received information from staff who were up to date with accurate information). There was some confusion about one of the employer’s staff not coming to work that day, however, and the plaintiff ultimately greeted the insurance representative and spoke to him about a missing report which he believed would be blamed on him. The employer pointed out that the plaintiff never mentioned any safety concerns to the insurance company employee. During oral argument, it was explained that the plaintiff then told another employee at the employer that he had told the insurance employee about the missing report so that he could not be blamed for its disappearance. The plaintiff was then terminated for violating a work directive.

The Court of Appeals concluded that even though the plaintiff did not specifically mention a concern with workplace place safety to the insurance representative, the issue raised related to workplace safety. It also found inherently suspicious the employer’s direction to limit communication with the insurance representative. However, Justice O’Connor was troubled by this “leap” and suggested that it might be suspicious if only the plaintiff had been directed to not communicate with the insurance representative.

The plaintiff’s attorney attempted to argue that evidence of causation cannot be limited to simply this single conversation with the insurance representative, but argued that the Court should look back at the plaintiff’s history – going back to 2001 -- of being perceived as a safety troublemaker. Justice Lanzinger then asked how long an employee should be protected after engaging in protected whistleblowing. In response, his attorney admitted that it would typically be no more than 6 months, but that it would be longer in this case in light of the protracted disputes over fire safety at the plant.

In short, the employer argued that this case should be dismissed on summary judgment because (1) the plaintiff never mentioned a concern with workplace safety to the insurance representative (but only a concern with workplace paranoia) and (2) never complained to a government agency or internal management about any safety concerns. Otherwise, the possibility exists that an employee would be able to claim whistleblower protection just by mentioning an issue to a spouse, neighbor, drinking buddy, etc. This time around, the Court did not seem to entertain the same acceptance of the plaintiff’s case.

As mentioned, the case was previously argued before the Supreme Court, which remanded it for lack of a final and appealable order (in that the plaintiff had attempted to create an appealable order by voluntarily dismissing without prejudice a overtime wage claim). On remand, the plaintiff dismissed that claim with prejudice and the trial court reinstated his prior summary judgment in favor of the employer. Without writing a new opinion, the Court of Appeals, again, reversed and the employer, again, appealed to the Supreme Court.

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.

Stark County Court of Appeals Dismisses Whistleblower Retaliation Claim as Untimely

Earlier this month, the Stark County Court of Appeals dismissed as untimely a claim for wrongful constructive discharge based on an employee’s written allegations of theft against his supervisor to the Board President and city law director. Miller v. Rodman Pub. Library Bd. of Trustees, 2009-Ohio-573. In that case, the plaintiff maintenance supervisor wrote the President of a public library and the city law director about his suspicions that his supervisor – the Library’s Director of Operations – was stealing chairs from the library. When no action was taken for several months, the plaintiff supervisor resigned his position, citing his prior allegations. Just a few weeks later, the Operations Director was arrested, pled guilty, paid restitution and was incarcerated for a period of time. Five months after he resigned, the plaintiff supervisor filed suit against the library, claiming that he was constructively discharged in violation of Ohio’s Whistleblower statute and public policy. The trial court dismissed his claims for being filed more than 180 days after his alleged constructive discharge and the Court of Appeals affirmed.

The court found that Ohio Revised Code § 4113.52(D) required any civil action under the Whistleblower statute to be filed within 180 days. The Court of Appeals refused to consider the supervisor’s argument that the 180 should not begin to run until the Director had been arrested because the supervisor failed to file any response to the Library’s motion to dismiss at the trial court level. The Court also refused to recognize a public policy claim because the sole source of public policy identified to support that claim was the whistleblower statute (which required a claim to be filed within 180 days).

Insomniacs can read the full opinion at

Supreme Court Dismisses Appeal on Whether Wrongful Discharge Claim Is Valid Based on Safety Concerns Shared with Insurance Auditor

Today, the Supreme Court dismissed on procedural grounds an appeal of a case which has captured the attention of employment attorneys throughout the state. On February 6, 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 in a document of fire alarm inspections. The Court held today that there was no final appealable order from the trial court because that court had entered summary judgment in favor of the employer on several claims and then the plaintiff appealed only after voluntarily dismissing his remaining claims. Without a final appealable order, the plaintiff had no jurisdiction to appeal to the Ohio Court of Appeals and the employer could not appeal to the Supreme Court.

As reported in the July 9, 2007 FYI, the Montgomery County Court of Appeals reversed summary judgment in favor of the defendant employer on the wrongful discharge claim after the plaintiff was fired for insubordination after expressing concern about the employer’s fire alarm system with an insurance agent who had been present to inspect the employer’s premises and provide an insurance quote. Dohme v. Eurand Am., Inc., 2007-Ohio-865 (3/2/07). Notably, the plaintiff had not been fired several years earlier when he reported to the fire department that one of the fire alarms had malfunctioned during a fire. Instead, he was transferred to another position which made him responsible for the fire alarm system. A few days prior to his termination for insubordination, the employer had specifically prohibited all employees from speaking with the insurance agent who was scheduled to inspect the premises. Although the plaintiff had not been specifically authorized in writing to meet with the insurance agent, he says that he had been asked to fill in for an absent employee. He then provided a report to the agent about overdue fire alarm inspections and noted that “suspiciously” one of the overdue inspections had not been included on the report. Plaintiff testified that he did not want to be blamed for the omission.

The employer argued that no public policy was jeopardized or implicated by the plaintiff’s termination as required by Ohio law. “Moreover, Plaintiff's statements did not indicate a concern for work place safety. The plain language of his comments only indicates his own suspicion that the missing inspection report is an attempt by Defendant to set him up for a deficient job performance.” However, the Court of Appeals rejected this argument: “[T]he employee's intent is largely irrelevant in an analysis of the clarity element of a wrongful discharge claim. What is relevant is whether [plaintiff] did in fact report information to the inspector that encompassed a public policy favoring workplace safety. If [plaintiff] did so, then the trial court erred in granting summary judgment.” Under state and federal law, “[t]here is a clear public policy favoring workplace fire safety. Therefore, retaliation against employees who raise concerns relating to workplace fire safety contravenes a clear public policy. . . . An employee who reports fire safety concerns to the employer's insurance inspector, regardless of the employee's intent in doing so, is protected from being fired solely for the sharing of the safety information.”

The Court of Appeals also rejected the employer’s argument that the plaintiff had failed to report his concerns to a government agency and chose, instead, an insurance agent. The Court determined that this argument “ignores the fact that an insurer's requirements may function to avoid fire safety defects. When such requirements are imposed, or higher premiums are the alternative, an employer . . . is motivated to cure safety defects. The market thus plays a role different from that of government, which may issue citations, but perhaps more immediate and compelling. And, making the insurer aware of defects through its representative furthers the public interest in effective fire safety measures.”

The Court of Appeals also rejected the argument that an “employee must make some formal announcement that his statements are being made for the purpose of protecting the public policy favoring workplace safety. Employers are presumed to be sophisticated enough to comply with the workplace safety laws. When an employer directs employees to not speak to an insurance representative inspecting a premises, an implication arises that the employer wishes to cover up defects, including those that create a danger to employees. Supporting the employer's conduct endorses its efforts to conceal potential dangers. As the Jermer court recognized, the Supreme Court views employee complaints as critical to the enforcement of the State's public policy. We would be minimizing the importance of these complaints and the State's public policy were we to concentrate on the employee's intent in raising the safety concern rather than on whether the employee's complaints related to the public policy and whether the employer fired the employee for raising the concern.”

During the February 2008 oral argument, the Supreme Court was told that there was no authority supporting the appellate court’s holding that whistleblowing claims can exist even when the whistleblower did not share his or her concerns with a government agency or with management. Some of the justices’ questions indicated that they were skeptical of drawing a bright line for whistleblowing claims which would limit them to government agents or management. Rather, a suggestion was made that public policy might be better served if whistleblower claims were recognized when the concerns were shared with anyone with power to remedy an unsafe situation. The employer’s attorney suggested that such a rule could lead to whistleblower claims being brought when employees merely reported their concerns to co-workers or to their spouses. Questions then focused on whether the insurance auditor could have improved an allegedly unsafe condition such that public policy would be served by recognizing a whistleblower claim when the concerns are shared with an insurance company. Apparently, the trial court record had not been sufficiently developed on that point.

Months after oral arguments, the Supreme Court extended jurisdiction over an additional issue: whether the clarity element had been satisfied in the public policy claim.

As readers of this blog know, the Sixth Circuit last week dismissed whistleblowing and wrongful discharge claims when the employee failed to report his concerns to the appropriate government agency after making internal reports. See:

Sixth Circuit: State and Federal Whistleblower Statutes Do Not Protect Internal Reporting by Employee Until He Investigates and Reports to Government

Today, the Sixth Circuit affirmed the dismissal of whistleblowing and public policy claims by the terminated officer of a financial institution who had provided information about misconduct to his supervisors that lead to his former boss being fired. Hill v. Mr. Money Finance Co., No. 07-3907. The Court found that the plaintiff’s activities were not protected by state or federal whistleblowing statutes or public policy because, among other things, he was fired before he reported the misconduct to government authorities.

According to the Court’s opinion, the plaintiff was hired as a Senior Vice President and was permitted by the company president to work three days each week in the office (since he lived approximately 90 miles away). At some point, he provided about 54 pages of evidence to a member of the Board of Directors about misconduct by the company’s president, including questionable credit card charges (for, among other things, flowers and lingerie), and two questionable loans. This information was forwarded to the CEO and ultimately to outside counsel, which arranged for the president to resign. None of this was reported to any federal or regulatory authorities. That same Board member was eventually hired as the new president and he terminated some of the “perks” of the plaintiff’s position, including his ability to work from home or receive a car allowance. When the plaintiff sought an increase in compensation to reflect the changes, the new president instead arranged for him to interview with other companies that would consider his compensation needs.

The plaintiff then attended a seminar where he learned about Suspicious Activity Reports (SARs) filed with the federal law enforcement and the Treasury Department concerning improper loans. He informed the new president that he believed that the former president’s misconduct was required to be documented in a SAR, but the new president failed to take any action on this information or learn about the SAR process. A few weeks later, the new president decided to eliminate the plaintiff’s SVP job as part of a reorganization. However, before the plaintiff was so informed of the reorganization, he sent a letter to the Board and the bank’s compliance officer about his concern that the bank was required to file a SAR concerning the former president’s misconduct. In particular, he believed it was illegal not to submit a SAR under the circumstances. The bank’s outside counsel refused to disclose whether a SAR had been filed, but responded “that [the plaintiff’s] approach to the situation created ‘disturbing problems’; that Mr. Money has no problem with filing an SAR because it has no reason to protect the resigned [former president]; and that if [the plaintiff] wanted to file an SAR, he should ‘go ahead.’” Apparently unaware that the plaintiff had already raised the issue with the current president, the attorney also expressed displeasure “at [the plaintiff] choosing to ignore ‘the chain of command,’ and suggested that [the plaintiff] ‘manufactured this issue for reasons that have nothing to do with’ filing a SAR.” Nonetheless, the attorney advised the compliance officer to “seek clarification from the Financial Crimes Enforcement Network (“FinCEN”), a division of the Treasury Department, whether an SAR needed to be filed.” The compliance officer sought clarification about one of the two improper loans and was told that it was not criminal misconduct which required a SAR.

Eleven days after informing the Board that he felt a SAR was necessary, the plaintiff was fired in the reorganization based on the needs of the business and his requested compensation. He then provided a letter he had mailed the day before detailing how he felt retaliated against for reporting the prior president’s misconduct when his working conditions had been changed by the current president. Two months later, the plaintiff filed suit and then filed a SAR.

The Court affirmed the dismissal of the plaintiff’s claim that his termination violated Ohio’s Whistleblower statute at Ohio Revised Code § 4113.52. The Court concluded that an employee is only protected “from retaliation ‘as long as he made a ‘reasonable and good faith effort to determine the accuracy’ of each informational element.’” The Court did not believe that the plaintiff satisfied this requirement of the Ohio statute despite evidence that he:

1) “gathered the concerns of multiple employees”; (2) assembled these concerns “into a written report,” which he presented to [the Board member]; (3) sought “additional information” on a credit card account when another employee brought her concerns to him, which entailed “obtaining online account information”; (4) reviewed “approximately 54 pages of MasterCard statements, which revealed the specifics of [the former president’s] activity”; (5) “pulled files to review loans” made to [an] (individual with the Ohio address, whose loan documents were delivered to New Jersey) and [a] singer; (6) “read the statutes relating to embezzlement and bank fraud.”

While the plaintiff “demonstrate[d] that he transmitted the concerns of multiple employees to [the Board member]. However, . . . serving as a “mere conduit” of information does not by itself amount to a reasonable and good faith effort” under the Ohio Whistleblower statute. “[I]t is clear that only those employees in the chain of command – only those “conduits” – who satisfy the requirement to make a reasonable and good faith effort to determine the accuracy of information they received and passed on are protected under the statute.”

The Court also rejected the plaintiff’s argument that he had submitted a written report to the Board member when he assembled the 54 pages of evidence of the misconduct, including his handwritten notes on some of the pages. Rather, the evidence “likewise fails to show that [the plaintiff] sought any information beyond that contained in the statements printed by another employee. He states that he did not know nor seek to ascertain whether the bank conducted an audit on the credit card or exactly how much money [the former president] paid back, if any.” The Court was also troubled by the amount of effort which the plaintiff put into determining whether the misconduct was criminal – or even felonious. “Merely stating in a sworn affidavit that he ‘believed that these serious crimes were felonies’ may conceivably satisfy the requirement that the employee reasonably believed a felony occurred, but it does not satisfy the requirement to make a reasonable and good faith effort to determine the accuracy of that belief. Even if it is not inconceivable that a jury would find reasonable and good faith effort with regard to the first informational component (occurrence of misconduct), it is far less conceivable with regard to the second informational component (criminality of misconduct), and wholly inconceivable with regard to the third informational component (felonious nature of misconduct). Therefore, we affirm the district court’s decision as to [the plaintiff’s] claim under the Ohio Whistleblower Statute, on the grounds that [the plaintiff] did not proffer sufficient evidence to create a genuine issue of material fact as to his reasonable and good faith effort to determine the accuracy of the information he reported.”

The Court also affirmed the dismissal of the federal whistleblowing claims because the plaintiff failed to “establish that his conduct qualifies for whistleblower protection under Federal Whistleblower Statutes [at 31 U.S.C. §5328 and 12 U.S.C. §1831j] , because [he] did not file protected information with the federal agencies specified in the statutes until after Defendants terminated his employment, and his ‘internal whistle-blowing’ to . . . the Board members does not satisfy statutory requirements.” As explained by the district court, “The language of sections 1831j and 5328(a) is clear and unambiguous. If the plaintiff did not report the relevant information, himself or through a conduit, to a federal banking agency, the Attorney General, the Secretary of the Treasury, or any federal supervisory agency, before being discharged or otherwise discriminated against . . . then the plaintiff is not protected by these whistle-blower protection laws.” More pointedly, “[a]lthough [the plaintiff] “had threatened to file an SAR on more than one occasion, and even announced his intent to do so, [he] did not actually file an SAR until after Defendants fired him.” Statutory language is clear that retaliation must follow the provision of information to a specified federal authority.”

The Court likewise affirmed the dismissal of the public policy claim. As explained by the district court: Because the plaintiff “did not report criminal activity within the corporations to anyone outside of the companies with any authority or oversight over the Defendants’ industries until after he was terminated,” [the plaintiff’s] actions “do not fulfill the goals of these statutes or of the public policy behind these statutes.” According to the Court, “[t]he obvious implication of [Ohio decisions] is that an employee who fails to strictly comply with the requirements of [the shistleblower statute] cannot base a [public policy] claim solely upon the public policy embodied in that statute.”

“[T]here is no genuine material issue as to whether [the plaintiff] reported anything outside the company – and as we agreed above, he did not. [The plaintiff’s] conduct did not fulfill the goals of the identified public policies, not solely because [he] did not comply with statutory requirements, but also because [he] failed to report, as required by the clear public policies he identified. Holding that a public policy in favor of reporting crimes requires that a possible crime actually be reported is not at odds with lower court decisions [he] cites in support of his claim.”

For some reason, the Court found distinguishable other public policy claims which protected internal whistleblowers simply because they involved different public policies. Rather “all of [those] cases deal with the policy favoring workplace safety. “

The Court likewise faulted the plaintiff for failing to identify any other specific public policy which prohibited retaliation against employees engaged in his behavior. The Plaintiff “does not match the “source” to the clear policy: we are left guessing as to which of these numerous statutes manifests a clear public policy against the “dismissal of bank employees in retaliation for reporting unlawful conduct by the officers of financial institutions,” let alone what specific statutory language expresses said policy clearly. Even if such a policy were clearly manifest, this claim fails for the same reasons as above – there was no “reporting” of violations to external authorities. Since [the plaintiff] did not establish the clarity element of the tort, whether he has established the jeopardy element is moot.”

Even if the Court did not think much of the plaintiff’s retaliation claims, it dismissed the Defendants’ request for sanctions for pursuing a frivolous claim.

Insomniacs can read the full option at http://www.ca6.uscourts.gov/opinions.pdf/09a0099n-06.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.

Supreme Court Hears Debate of Whether Wrongful Discharge Claim Is Valid Based on Safety Concerns Shared with Insurance Auditor

Today, 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 in a document of fire alarm inspections.

As reported in the July 9, 2007 FYI, the Montgomery County Court of Appeals reversed summary judgment in favor of the defendant employer on the wrongful discharge claim after the plaintiff was fired for insubordination for expressing concern about the employer’s fire alarm system with an insurance agent who had been present to inspect the employer’s premises and provide an insurance quote. Dohme v. Eurand Am., Inc., 2007-Ohio-865 (3/2/07). Notably, the plaintiff had not been fired several years earlier when he reported to the fire department that one of the fire alarms had malfunctioned during a fire. Instead, he was transferred to another position which made him responsible for the fire alarm system. A few days prior to his termination for insubordination, the employer had specifically prohibited all employees from speaking with the insurance agent who was scheduled to inspect the premises. Although the plaintiff had not been specifically authorized in writing to meet with the insurance agent, he says that he had been asked to fill in for an absent employee. He then provided a report to the agent about overdue fire alarm inspections and noted that “suspiciously” one of the overdue inspections had not been included on the report. Plaintiff testified that he did not want to be blamed for the omission.

The employer argued that no public policy was jeopardized or implicated by the plaintiff’s termination as required by Ohio law. “Moreover, Plaintiff's statements did not indicate a concern for work place safety. The plain language of his comments only indicates his own suspicion that the missing inspection report is an attempt by Defendant to set him up for a deficient job performance.” However, the Court of Appeals rejected this argument: “[T]he employee's intent is largely irrelevant in an analysis of the clarity element of a wrongful discharge claim. What is relevant is whether [plaintiff] did in fact report information to the inspector that encompassed a public policy favoring workplace safety. If [plaintiff] did so, then the trial court erred in granting summary judgment.” Under state and federal law, “[t]here is a clear public policy favoring workplace fire safety. Therefore, retaliation against employees who raise concerns relating to workplace fire safety contravenes a clear public policy. . . . An employee who reports fire safety concerns to the employer's insurance inspector, regardless of the employee's intent in doing so, is protected from being fired solely for the sharing of the safety information.”

The Court of Appeals also rejected the employer’s argument that the plaintiff had failed to report his concerns to a government agency and chose, instead, an insurance agent. The Court determined that this argument “ignores the fact that an insurer's requirements may function to avoid fire safety defects. When such requirements are imposed, or higher premiums are the alternative, an employer . . . is motivated to cure safety defects. The market thus plays a role different from that of government, which may issue citations, but perhaps more immediate and compelling. And, making the insurer aware of defects through its representative furthers the public interest in effective fire safety measures.”

The Court of Appeals also rejected the argument that an “employee must make some formal announcement that his statements are being made for the purpose of protecting the public policy favoring workplace safety. Employers are presumed to be sophisticated enough to comply with the workplace safety laws. When an employer directs employees to not speak to an insurance representative inspecting a premises, an implication arises that the employer wishes to cover up defects, including those that create a danger to employees. Supporting the employer's conduct endorses its efforts to conceal potential dangers. As the Jermer court recognized, the Supreme Court views employee complaints as critical to the enforcement of the State's public policy. We would be minimizing the importance of these complaints and the State's public policy were we to concentrate on the employee's intent in raising the safety concern rather than on whether the employee's complaints related to the public policy and whether the employer fired the employee for raising the concern.”

During oral argument, the Supreme Court was told that there was no authority supporting the appellate court’s holding that whistleblowing claims can exist even when the whistleblower did not share his or her concerns with a government agency or with management. Some of the justices’
questions indicated that they were skeptical of drawing a bright line for whistleblowing claims which would limit them to government agents or management. Rather, a suggestion was made that public policy might be better served if whistleblower claims were recognized when the concerns were shared with anyone with power to remedy an unsafe situation. The employer’s attorney suggested that such a rule could lead to whistleblower claims being brought when employees merely reported their concerns to co-workers or to their spouses. Questions then focused on whether the insurance auditor could have improved an allegedly unsafe condition such that public policy would be served by recognizing a whistleblower claim when the concerns are shared with an insurance company. Apparently, the trial court record had not been sufficiently developed on that point.

Insomniacs can watch the oral argument at http://www.sconet.state.oh.us/videostream/archives/2008/

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Ohio Court of Appeals: Whistleblower Statute Requires More Notice of Product Flaws Than in Regular Quality Control Report.

Near the end of last year, the Ohio Court of Appeals affirmed the dismissal of statutory and common-law whistleblower/wrongful discharge claims on the ground that the plaintiff quality control manager failed to sufficiently specify the danger in writing of a defect in the production of components used in childcare products. Behm v. Progress Plastic Prods., Inc., 2007-Ohio-6357. The plaintiff claimed that he had been laid off for bringing serious concerns to management about the safety of its product. The parties agreed that the employer had manufactured parts which did not comply with its customers specifications, that the parts were supposed to support the weight of infants, that plaintiff tested the parts and found them to be too brittle for their intended purpose and that he advised his employer to recall the already shipped product:

"Attached are Melt Flow Analysis [sic] we've collected on the pad ring samples we have in Bellevue. As the higher the melt flow the more brittle the product I have serious concerns about product that has probably shipped to Evenflo. * * * The attached data does not bode well for this material having been used. We know Evenflo has product in house from 3/2 date codes, I've requested specific samples from that date be sent to Bellevue from Tiffin along with the dates of all product in stock at Tiffin. As you can see from the attached data some dates are missing and I fear they have shipped to Evenflo. We need to decide what to do as speed is of the essence in getting bad product possibly shipped to the customer from reaching consumers."

“Protection as a whistleblower requires an employee's strict compliance with the dictates of R.C. 4113.52. The statute's threshold requirements demand that both: (1) an employee reasonably believed that a statute, work rule, or company policy was violated; and (2) an employee reasonably believed the violation was (a) a misdemeanor which created imminent danger of physical harm, (b) a hazard to public health or safety, or (c) a felony. . . . R.C. 4113.52 also requires two types of notification from a person claiming protections under the statute: oral and written. Focusing on the latter, the statute demands that a person submit a written report with "sufficient detail to identify and describe the violation" to the same supervisor or officer that he orally notified. R.C. § 4113.52(A)(1)(a), (A)(3).”

The court rejected the employer’s argument that the plaintiff did not sufficiently specify the source of law which it purportedly violated. The plaintiff had testified that he knew there were criminal laws governing the production of child car seats, that he assumed similar laws existed for other child care products, and he was concerned that someone would get hurt from the defective products. As the court correctly noted, “sensible minds could differ as to whether appellant reasonably believed the violation constituted a hazard to public health or safety. Both appellant's deposition and his affidavit indicate that he in fact believed that a safety hazard existed.”

Nonetheless, the court found the plaintiff’s written notice to be insufficient under the statute. “Noticeably absent from . . . appellant's the message[] to [his boss] was any mention of a violation or even a safety concern. In fact, in appellant's deposition he stated that he did not recall ever expressing in written form a safety concern to anyone [in management]. The abovementioned messages lacked what the statute demands: sufficient detail to identify and describe a specific safety violation. . . . Nothing in appellant's messages distinguishes them from a regular quality control concern characteristic of his quality management position . . . . Thus, . . . appellant failed to comply with the statute. . . . Appellant's failure to strictly adhere to the dictates of R.C. 4113.52 by not filing a report in the manner required, prohibits him from claiming the protections of the statute.”

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/6/2007/2007-ohio-6357.pdf.

By way of comparison and contrast, in May 2007, the Cuyahoga Court of Appeals had reversed summary judgment in favor of an employer in a lawsuit brought by a whistleblowing former quality control employee who allegedly had been similarly fired in violation of public policy for refusing to certify airplane parts as meeting the customer’s quality specifications. Zajc v. Hycomb, 172, Ohio App. 3d. 117, 2007-Ohio-2637. The Court of Appeals believed that the plaintiff had identified sufficiently clear statutory and regulatory sources of authority for this public policy claim: the Uniform Commercial Code (giving the buyer the right to reject non-conforming goods), the Products Liability Statutes (creating strict liability where the risks exceed the benefits of a design) and Federal Aviation Administration regulations which require that a production inspection system must be in place to determine, inter alia, that subcontracted parts must be as specified in the design data, that parts are be inspected, and that inspection records are maintained. The court rejected arguments that the products liability laws sufficiently protect consumers by permitting injured consumers to sue the manufacturer without permitting the manufacturer’s employees sue for wrongful discharge. http://www.sconet.state.oh.us/rod/newpdf/8/2007/2007-ohio-2637.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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.