Court Rejects Public Policy Wrongful Discharge Claim for Lack of Clarity About Employer’s Alleged Legal Violation

Last week, the Ohio Court of Appeals affirmed the dismissal of a wrongful discharge claim brought by a terminated paramedic who alleged that he was fired for opposing the mistreatment of a patient in violation of Ohio public policy. Strodtbeck v. Lake Hosp. Sys., Inc., 2011-Ohio-2327. He questioned the medical treatment of a patient and took a picture of the alleged mistreatment with his cell phone camera and later showed the picture to the nurse manager and human resources while sharing his concerns. The employer chose to focus on his failure to obtain written consent from the patient before taking the picture instead of his complaint and terminated his employment. The Court found that the plaintiff had failed to identify any clear public policy, statute or other law which applied to his actions or which the hospital violated in terminating his employment. Thus, he had failed to satisfy the "clarity" element of a claim for wrongful discharge in violation of public policy.

In moving for summary judgment, the hospital had pointed out that the plaintiff did not have explicit permission from management to take the picture, failed to obtain written consent from the patient (as required by HIPAA practices), used his personal cell phone during working hours and failed to use the hospital's Polaroid camera in the ER to document his concerns. More importantly, the plaintiff failed to identify any specific public policy which the hospital violated in terminating his employment. Among other things, he failed to identify any required standard of medical care that would cover the amount of tape used to attach a catheter to a patient's leg or reporting possible patient abuse or maltreatment in a hospital setting.

The plaintiff argued that his situation was analogous to other situations where courts have found violations of public policy. However, the court refused to accept analogous situation as sufficient to satisfy the "clarity" element of a public policy wrongful discharge claim. Accordingly, the Court rejected the plaintiff's attempt to analogize his situation to one where an employee is fired for consulting with an attorney. Similarly, the court rejected the argument that his situation was analogous to firing an employee for cooperating with a criminal investigation of the employer because there was never any criminal investigation in this case and the plaintiff never alleged that the alleged mistreatment of the patient was criminal. Likewise, the plaintiff could not analogize to a situation where the employee was fired to testifying against the employer because there was never any legal or administrative proceeding in this case. Finally, the court refused to recognize an applicable public policy from the nursing home patient's bill of rights because the patient was in a hospital, not a nursing home, and there is a statutory remedy in nursing home abuse situations.

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 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:

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.

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.