Opinion · Ohio Supreme Court
Kulch v. Structural Fibers, Inc.
78 Ohio St. 3d 134
- Type
- Opinion
- Court
- Ohio Supreme Court
- Jurisdiction
- Ohio
- Date
- 1997-04-16
- Topic
- general
holding that retaliation against employees who file OSHA complaints concerning unsafe or unhealthy conditions in the workplace contravenes Ohio’s public policy | holding that the remedies available under Ohio’s Whistle-blower Statute are inadequate to fully compensate an employee who is discharged in violation of the statute | explaining that allowing an employer to dismiss an employee for filing a complaint about unlawful practices would deter other employees from reporting legitimate concerns | suggesting that Ohio needs employees to report legitimate health and safety concerns to further Ohio’s policy favoring workplace safety | suggesting that Ohio needs employees to report legitimate health and safety concerns to further Ohio's policy favoring workplace safety | explaining that allowing an employer to dismiss an employee for filing a complaint about unlawful practices would deter other employees from reporting legitimate concerns | stating that “the time has come for Ohio to join the great number of states which recognize a policy exception to the employment-at-will doctrine.” | holding that a plaintiff had a viable Greeley claim based on OSHA where the plaintiff had been fired for reporting “health problems from chemicals in the air, such as: acetone, styrene, epoxy resins, and cobalt mixes” (cleaned up) | stating that "the time has come for Ohio to join the great number of states which recognize a policy exception to the employment-at-will doctrine.” | stating that “the time has come for Ohio to join the great number of states which recognize a policy exception to the employment-at-will doctrine.” | recognizing a Greeley claim for tortious wrongful discharge in violation of the Ohio Whistleblower statute | stating that “the time has come for Ohio to join the great number of states which recognize a policy exception to the employmenfc-atwill doctrine.” | recognizing common-law tort action for "wrongful discharge/discipline" in violation of public policy | recognizing common-law tort action for “wrongful discharge/discipline” in violation of public policy | finding that an employer telling coworkers not to associate with the plaintiff, ordering supervisors to write down everything the plaintiff did, and secretly filming the plaintiff for two days was not sufficiently outrageous conduct | continuing the expansion of the Greeley cause of action by holding that the Whistleblower Statute does not preempt Greeley claims based on whistleblowing | continuing the expansion of the Greeley cause of action by holding that the Whistleblower Statute does not preempt Greeley claims based on whistleblowing | remanding claim for wrongful discharge in violation of public policy on the basis of age in view of the Court’s reasoning in Kulch | adopting test from H. Perritt, The Future of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie, 58 U. Cin. L.Rev. 397, 398-99 (1989) | terminating an employee who complains about safety is an affront to the public policy of Ohio | allowing a public policy wrongful discharge claim to be asserted based on a violation of Ohio’s whistle blower statute after a determination that the remedies provided therein were not intended to be exclusive | jeopardy element satisfied where Ohio policy favoring workplace safety would be compromised if employees were terminated for making complaints to Occupational Safety and Health Administration | employee’s failure to provide written report to employer before notifying authorities was fatal to claim under § 4113.52(A)(1) | clarity element met when public policy is employee safety as reflected by the federal OSHA statute (29 U.S.C. 660 (c)) and related Ohio statutes | clarity element satisfied where public policy at issue was employee safety and the plaintiff invoked the federal OHSA statute along with related federal laws | clarity element met when public policy is employee safety as reflected by the federal OSHA statute (29 U.S.C. 660 (c)) and related Oh
Citator
- Cited by
- 208 opinions
[This opinion has been published in Ohio Official Reports at78 Ohio St.3d 134
.]
KULCH, APPELLANT, v. STRUCTURAL FIBERS, INC. ET AL., APPELLEES.
[Cite as Kulch v. Structural Fibers, Inc., 1997-Ohio-219
.]
Employment relations—At-will employee discharged or disciplined for filing
complaint with OSHA is entitled to maintain common-law tort action
against employer for wrongful discharge/discipline in violation of public
policy—R.C. 4113.52, construed.
__________________
1. An at-will employee who is discharged or disciplined for filing a complaint
with the Occupational Safety and Health Administration concerning matters
of health and safety in the workplace is entitled to maintain a common-law
tort action against the employer for wrongful discharge/discipline in
violation of public policy pursuant to Greeley v. Miami Valley Maintenance
Contrs., Inc. (1990), 49 Ohio St.3d 228
,551 N.E.2d 981
, and its progeny.
2. R.C. 4113.52 does not preempt a common-law cause of action against an
employer who discharges or disciplines an employee in violation of that
statute.
3. An at-will employee who is discharged or disciplined in violation of the
public policy embodied in R.C. 4113.52 may maintain a common-law cause
of action against the employer pursuant to Greeley v. Miami Valley
Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228
,551 N.E.2d 981
, and
its progeny, so long as that employee had fully complied with the statute
and was subsequently discharged or disciplined. (Greeley, supra,
approved;
Painter v. Graley [1994], 70 Ohio St.3d 377
,639 N.E.2d 51
, paragraphs
two and three of the syllabus, approved; Phung v. Waste Mgt., Inc. [1986],
23 Ohio St.3d 100
, 23 OBR 260,491 N.E.2d 1114
, overruled.)
SUPREME COURT OF OHIO
4. The remedies available pursuant to R.C. 4113.52 for violations of the statute
and the remedies available for the tort of wrongful discharge are cumulative.
5. An at-will employee who is discharged or disciplined in violation of R.C.
4113.52 may maintain a statutory cause of action for the violation, a
common-law cause of action in tort, or both, but is not entitled to double
recovery.
__________________
(No. 95-650—Submitted October 8, 1996—Decided April 16, 1997.)
APPEAL from the Court of Appeals for Geauga County, No. 93-G-1824.
__________________
{¶ 1} Structural Fibers, Inc., appellee, is an operating division of appellee
ESSEF Corporation. Structural Fibers is located in Chardon, Ohio, where it
manufactures tanks or “vessels” used in well water systems. In 1976, James Kulch,
appellant, was hired by Structural Fibers as a factory worker. In late 1990, Kulch
began experiencing serious health problems which he believed were attributable to
toxic chemicals in the air at his workplace. Other employees had also experienced
health problems, such as serious allergic reactions, rashes, bloody noses, skin
irritation, and respiratory difficulties. Therefore, Kulch and others verbally
complained to management concerning the situation. However, according to
Kulch, management responded to his complaints by informing him that he could
either do his job or find employment elsewhere.
{¶ 2} In January 1991, after Structural Fibers had done nothing in response
to Kulch’s verbal complaints, Kulch filed a written report with the Occupational
Safety and Health Administration (“OSHA”). In his report, Kulch stated that
employees in the “winding area” of Structural Fibers’ main plant were complaining
of health problems “from chemicals in the air, such as: acetone, styrene, epoxy
resins, colbalt [sic] mixes.” In April 1991, OSHA inspected the plant and, among
other things, performed air monitoring in the winding area. The air sampling data
2
January Term, 1997
revealed that the air contaminants in the winding area did not violate OSHA
standards. However, during the on-site inspection, OSHA found several serious
violations of the Occupational Safety and Health Act of 1970, Section 651 et seq.,
Title 29, U.S. Code. Consequently, substantial fines were assessed against
Structural Fibers.1 The violations found by OSHA were apparently unrelated to the
matters set forth in Kulch’s January 1991 OSHA complaint.
{¶ 3} According to Kulch, Structural Fibers and the ESSEF Corporation
(collectively, “appellees”) retaliated against him for having filed the report with
OSHA. Specifically, Kulch’s coworkers were approached by management and
asked to confirm the identity of the person who had filed the OSHA complaint. At
the same time, appellees warned employees not to associate with Kulch. Appellees
threatened that anyone found associating with Kulch would “go down” with him.
On one occasion, Kulch was physically threatened by a supervisor for having
reported the company to OSHA. Additionally, Kulch’s supervisors began filling
his employment file with lengthy write-ups and entries. Between June 7 and
October 7, 1991, write-ups or reports had been placed in Kulch’s personnel file on
eleven separate occasions, sometimes more than once on the same day.
{¶ 4} In October 1991, management at Structural Fibers decided to secretly
videotape Kulch during work hours to monitor his job performance. A hidden
camera was placed near Kulch’s work station and his performance was surveyed
over a period of two days. The act of videotaping Kulch was the first time in
company history that surveillance cameras were used to document an employee’s
job performance. On October 17, 1991, Kulch was discharged from his
employment with Structural Fibers. Following the discharge, Kulch filed a
complaint with OSHA, asserting that appellees had discharged him for having filed
1. The fines imposed by OSHA were later reduced under the terms of a settlement agreement
between OSHA and Structural Fibers.
3
SUPREME COURT OF OHIO
previous OSHA complaints. In July 1992, OSHA dismissed Kulch’s retaliation
complaint.
{¶ 5} The parties dispute the reason for Kulch’s termination. Kulch
contends that he was discharged from his employment in reprisal for having
reported Structural Fibers to OSHA. Conversely, appellees specifically deny
having ever retaliated against Kulch. Appellees claim that they videotaped Kulch
and began to closely monitor his job performance simply because Kulch had been
suspected of improperly performing his job. Appellees maintain that they never
knew about Kulch’s January 1991 OSHA complaint until well after the complaint
had been filed. Appellees claim that Kulch was terminated for failure to properly
perform his job and for falsely indicating on his time card that he had performed
work he had not in fact completed.
{¶ 6} In December 1991, Kulch filed suit against Structural Fibers. In an
amended complaint, Kulch added appellee ESSEF Corporation as a defendant and
set forth claims for violations of Ohio’s Whistleblower Statute, R.C. 4113.52, and
wrongful discharge in violation of public policy. Kulch also set forth claims for,
among other things, negligent and intentional infliction of emotional distress. On
May 15, 1992, appellees moved to dismiss the amended complaint for failure to
state a claim. The trial court denied appellees’ motion to dismiss. Thereafter,
following a period of discovery, appellees moved for summary judgment on
Kulch’s claims for violations of the Whistleblower Statute and his claims for
negligent and intentional infliction of emotional distress. Appellees also moved for
judgment on the pleadings with respect to, among other things, Kulch’s claim of
wrongful discharge in violation of public policy. By judgment entry filed
November 10, 1993, the trial court granted appellees’ motion for judgment on the
pleadings and for summary judgment, stating:
“This case is before the court on defendants’ motion for judgment on the
pleadings and for summary judgment.
4
January Term, 1997
“Plaintiff seeks to recover damages for wrongful discharge pursuant to the
Whistleblower Act, R.C. 4113.52. Plaintiff reported to [OSHA] that the
defendant[s’] work place was unsafe because defendant[s] permitted the use and
discharge into the air of toxic and corrosive chemicals. Defendant[s] [claim] that
plaintiff was discharged, not for whistleblowing, but for unsatisfactory work
performance. For the purposes of this motion, the court must assume that
defendant[s] discharged plaintiff because plaintiff reported defendant[s] to OSHA.
“In addition to a violation of the Whistleblower Act, plaintiff alleges that
his discharge was unlawful and in conflict with Ohio’s public policy as established
in Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St.3d 228
[551 N.E.2d 981
]. First, the court is of the opinion that the Whistleblower Act
in Ohio has preempted this field so that * * * a public policy exception to the
employment at will doctrine does not exist in Ohio for whistleblowing. * * *
“As to the violations of the Whistleblower Statute, R.C. 4113.52
specifically provides that an employee must first give oral and written notice to the
employer in order to be protected by the statute. It is undisputed in this case that
plaintiff orally complained to the employer about the unsafe or unhealthy condition
in the plant, but that he never made a written complaint to the employer.
“* * *
“Accordingly, the court holds that plaintiff is not afforded protection
pursuant [to] R.C. 4113.52 and that no genuine issue exists as to any material fact
and that judgment should be granted as a matter of law with respect to the claimed
violation of statute.
“* * *
“Finally, plaintiff claims that he suffered emotional distress because of
defendant[s’] intentional and negligent actions. Construing the facts most
favorably for the plaintiff, the court concludes that defendant[s’] conduct was
neither extreme nor outrageous.
5
SUPREME COURT OF OHIO
“Accordingly, the court grants defendant[s’] motion for summary judgment
and finds for defendant[s] on the complaint.”
{¶ 7} On appeal, the court of appeals affirmed the judgment of the trial
court. With respect to Kulch’s claim of wrongful discharge in violation of public
policy, the court of appeals agreed with the trial court’s determination that R.C.
4113.52 preempts the formation of a public-policy exception to the employment-
at-will doctrine within the specific context of whistleblowing. The court of appeals
also agreed with the trial court’s decision granting summary judgment in favor of
appellees on Kulch’s statutory whistleblower cause of action, finding that Kulch
was not entitled to avail himself of the protections of R.C. 4113.52(A)(1)(a)
because he never made a written report to his employer concerning the alleged
unsafe or unhealthy condition of his workplace. Additionally, the court of appeals
upheld the grant of summary judgment in favor of appellees on the claims for
negligent and intentional infliction of emotional distress.
{¶ 8} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
__________________
Dworken & Bernstein Co., L.P.A., Patrick J. Perotti, Robert J. Hoffman and
Shawn W. Maestle, for appellant.
Roetzel & Andress and Gregory P. Szuter, for appellees.
Louis A. Jacobs; Spater, Gittes, Schulte & Kolman and Frederick M. Gittes,
urging reversal for amici curiae, Ohio Employment Lawyers Association; Ohio
NOW Education and Legal Fund; National Conference of Black Lawyers,
Columbus Chapter; and Police Officers for Equal Rights.
__________________
DOUGLAS, J.
{¶ 9} This appeal presents three main issues for our consideration. The first
is whether the court of appeals erred in finding that appellees were entitled to
6
January Term, 1997
summary judgment on Kulch’s statutory cause of action for violations of R.C.
4113.52, Ohio’s Whistleblower Statute.2 The second concerns the court of appeals’
2. R.C. 4113.52 provides that:
“(A)(1)(a) If an employee becomes aware in the course of his employment of a violation
of any state or federal statute or any ordinance or regulation of a political subdivision that his
employer has authority to correct, and the employee reasonably believes that the violation either 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 or is a felony, the employee orally shall notify his supervisor or other
responsible officer of his employer of the violation and subsequently shall file with that supervisor
or officer a written report that provides sufficient detail to identify and describe the violation. If the
employer does not correct the violation or make a reasonable and good faith effort to correct the
violation within twenty-four hours after the oral notification or the receipt of the report, whichever
is earlier, the employee may 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 his
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 he is engaged.
“(b) If an employee makes a report under division (A)(1)(a) of this section, the employer,
within twenty-four hours after the oral notification was made or the report was received or by the
close of business on the next regular business day following the day on which the oral notification
was made or the report was received, whichever is later, shall notify the employee, in writing, of
any effort of the employer to correct the alleged violation or hazard or of the absence of the alleged
violation or hazard.
“(2) If an employee becomes aware in the course of his employment of a violation of
Chapter 3704., 3734., 6109., or 6111. of the Revised Code that is a criminal offense, the employee
directly may notify, either orally or in writing, any appropriate public official or agency that has
regulatory authority over the employer and the industry, trade, or business in which he is engaged.
“(3) If an employee becomes aware in the course of his employment of a violation by a
fellow employee of any state or federal statute, any ordinance or regulation of a political subdivision,
or any work rule or company policy of his employer and the employee reasonably believes that the
violation either 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 or is a felony, the employee orally shall notify his
supervisor or other responsible officer of his employer of the violation and subsequently shall file
with that supervisor or officer a written report that provides sufficient detail to identify and describe
the violation.
“(B) Except as otherwise provided in division (C) of this section, no employer shall take
any disciplinary or retaliatory action against an employee for making any report authorized by
division (A)(1) or (2) of this section, or as a result of the employee’s having made any inquiry or
taken any other action to ensure the accuracy of any information reported under either such division.
No employer shall take any disciplinary or retaliatory action against an employee for making any
report authorized by division (A)(3) of this section if the employee made a reasonable and good
faith effort to determine the accuracy of any information so reported, or as a result of the employee’s
having made any inquiry or taken any other action to ensure the accuracy of any information
reported under that division. For purposes of this division, disciplinary or retaliatory action by the
employer includes, without limitation, doing any of the following:
“(1) Removing or suspending the employee from employment;
7
SUPREME COURT OF OHIO
determination that R.C. 4113.52 preempts the formation of an independent
common-law cause of action in tort for an at-will employee who is discharged or
disciplined for “whistleblowing.” The third involves the question whether the court
of appeals erred in affirming the grant of summary judgment in favor of appellees
on Kulch’s claims for negligent and intentional infliction of emotional distress. For
the reasons that follow, we affirm the judgment of the court of appeals in part,
reverse it in part, and remand this cause to the trial court for further proceedings.
I
Appellant’s Statutory Cause of Action
“(2) Withholding from the employee salary increases or employee benefits to which the
employee is otherwise entitled;
“(3) Transferring or reassigning the employee;
“(4) Denying the employee a promotion that otherwise would have been received;
“(5) Reducing the employee in pay or position.
“(C) An employee shall make a reasonable and good faith effort to determine the accuracy
of any information reported under division (A)(1) or (2) of this section. If the employee who makes
a report under either division fails to make such an effort, he may be subject to disciplinary action
by his employer, including suspension or removal, for reporting information without a reasonable
basis to do so under division (A)(1) or (2) of this section.
“(D) If an employer takes any disciplinary or retaliatory action against an employee as a
result of the employee’s having filed a report under division (A) of this section, the employee may
bring a civil action for appropriate injunctive relief or for the remedies set forth in division (E) of
this section, or both, within one hundred eighty days after the date the disciplinary or retaliatory
action was taken, in a court of common pleas in accordance with the rules of civil procedure. A
civil action under this division is not available to an employee as a remedy for any disciplinary or
retaliatory action taken by an appointing authority against the employee as a result of the employee’s
having filed a report under division (A) of section 124.341 of the Revised Code.
“(E) The court, in rendering a judgment for the employee in an action brought pursuant to
division (D) of this section, may order, as it determines appropriate, reinstatement of the employee
to the same position he held at the time of the disciplinary or retaliatory action and at the same site
of employment or to a comparable position at that site, the payment of back wages, full reinstatement
of fringe benefits and seniority rights, or any combination of these remedies. The court also may
award the prevailing party all or a portion of the costs of litigation, and if the employee who brought
the action prevails in the action, may award the prevailing employee reasonable attorney’s fees,
witness fees, and fees for experts who testify at trial, in an amount the court determines appropriate.
If the court determines that an employer deliberately has violated division (B) of this section, the
court, in making an award of back pay, may include interest at the rate specified in section 1343.03
of the Revised Code.
“(F) Any report filed with the inspector general under this section shall be filed as a
complaint in accordance with section 121.46 of the Revised Code.”
8
January Term, 1997
{¶ 10} The record reveals that appellant orally notified appellees of claimed
health and safety violations at the Structural Fibers plant long before he reported
the matter to OSHA. However, appellant never provided appellees with a written
report concerning these alleged violations. The trial court and the court of appeals
held that R.C. 4113.53(A)(1)(a) required appellant to notify appellees both orally
and in writing concerning the alleged safety and health violations in order to gain
statutory protection as a whistleblower. Therefore, the trial court and the court of
appeals held that appellant was not entitled to statutory protection under R.C.
4113.52 because he had failed to strictly comply with the requirements of R.C.
4113.52(A)(1)(a).
{¶ 11} Appellant presents four propositions of law for our consideration.
Propositions of Law Nos. 1 and 3 read as follows:
“Proposition of Law No. 1
“If an employer receives oral or written notification from an employee of a
claimed health or safety violation as described in R.C. §4113.52(A)(1)(a), and does
not correct the violation or make a reasonable and good faith effort to correct the
violation within 24 hours, the employee may file a written report with a regulatory
official or agency as authorized by R.C. §4113.52(A)(1)(a). That filing invokes the
protection of the whistleblower statute. R.C. §4133.52(A)-(B), explained.”
“Proposition of Law No. 3
“A court addressing a summary judgment motion must consider not only
the materials properly attached to the briefing in support and in opposition, but also
all pleadings on file in the case. A court may not properly grant summary judgment
on the ground that a party has not asserted a claim or theory in the lower court,
where such claim or theory is plainly set forth in the complaint or other pleading
properly on file. * * *”
{¶ 12} In his first proposition of law, appellant contends that the trial court
and the court of appeals erred in finding that he was required under R.C.
9
SUPREME COURT OF OHIO
4113.52(A)(1)(a) to notify appellees both orally and in writing concerning the
alleged safety and health violations. Specifically, appellant interprets R.C.
4113.52(A)(1)(a) as providing that if an employer receives oral notification from
an employee of a claimed health or safety violation of the type described in R.C.
4113.52(A)(1)(a), and the employer fails to correct the violation or make a
reasonable and good faith effort to correct the violation within twenty-four hours,
the employee may file a written report with an appropriate individual or agency
specified in R.C. 4113.52(A)(1)(a) and is entitled to the protections of the
Whistleblower Statute. We reject appellant’s interpretation of R.C.
4113.52(A)(1)(a).
{¶ 13} Recently, in Contreras v. Ferro Corp. (1995), 73 Ohio St.3d 244
,652 N.E.2d 940
, this court outlined the specific procedures that must be followed under R.C. 4113.52(A)(1)(a) for an employee to gain statutory protection for reporting certain information to outside authorities. InContreras, supra,
at 246- 249,652 N.E.2d at 942-944
, we stated:
“Ohio’s Whistleblower Statute, R.C. 4113.52, provides specific procedures
an employee must follow to gain statutory protection as a whistleblower. R.C.
4113.52(A)(1)(a) addresses the situation where an employee in the course of his or
her employment becomes aware of a violation of any state or federal statute or any
ordinance or regulation of a political subdivision that the employer has the authority
to correct, and the employee reasonably believes that the violation either is a
criminal offense that is likely to cause an imminent risk of physical harm or a hazard
to public health or safety or is a felony. Under such circumstances, R.C.
4113.52(A)(1)(a) requires that the employee orally notify his or her supervisor or
other responsible officer of the employer of the violation and subsequently file with
that person a written report that provides sufficient detail to identify and describe
the violation. If these requirements have been satisfied and the employer does not
correct the violation or make a reasonable and good faith effort to correct the
10
January Term, 1997
violation within twenty-four hours after the oral notification or the receipt of the
written report, whichever is earlier, the employee may then file a written report with
the prosecuting authority of the county or municipal corporation where the violation
occurred or with some other appropriate person specified in R.C. 4113.52(A)(1)(a).
“Clearly, the provisions of R.C. 4113.52(A)(1) contemplate that the
employer shall be given the opportunity to correct the violation. The statute
mandates that the employer be informed of the violation both orally and in writing.
An employee who fails to provide the employer with the required oral notification
and written report is not entitled to statutory protection for reporting the
information to outside authorities. If the employee provides the employer with oral
notification and a written report, the employee may be entitled to the protections
of the whistleblower statute for reporting the information to outside authorities only
if the employer has failed to correct the violation or make a reasonable and good
faith effort to correct the violation within twenty-four hours after the oral
notification or the receipt of the written report, whichever is earlier. R.C.
4113.52(A)(1)(b) contemplates that the employer will apprise the employee of its
efforts to correct the violation. That provision mandates that if an employee makes
a report to his or her employer under R.C. 4113.52(A)(1)(a), the employer, within
twenty-four hours after the oral notification was made or the report received or by
the close of business on the next regular business day, whichever is later, must
provide written notice to the employee of any efforts the employer made to correct
the alleged violation or hazard or of the absence of the alleged violation or hazard.
Only after all these various procedures and requirements have been satisfied, and
only if the employer has not corrected the violation or made a reasonable and good
faith effort to correct the violation may the employee report the violation to outside
authorities -- but only those authorities specified in R.C. 4113.52(A)(1)(a).
“Therefore, to restate, R.C. 4113.52(A)(1) protects an employee for reporting
certain information to outside authorities only if the following requirements have
11
SUPREME COURT OF OHIO
first been satisfied: (1) the employee provided the required oral notification to the
employee’s supervisor or other responsible officer of the employer, (2) the
employee filed a written report with the supervisor or other responsible officer, and
(3) the employer failed to correct the violation or to make a reasonable and good
faith effort to correct the violation. Further, R.C. 4113.52(A)(1)(a) sets forth the
sole acceptable manner in which the employee may ‘blow the whistle’ to outside
authorities. Specifically, the employee may file a written report that provides
sufficient detail to identify and describe the violation with the proper prosecuting
authority or other appropriate official or agency with regulatory authority over the
employer and the industry, trade or business in which the employer is engaged. An
employee who fails to follow the specific requirements of the statute is not a
protected whistleblower and, accordingly, may not bring a wrongful discharge
action pursuant to R.C. 4113.52.” (Emphasis added in part and deleted in part;
footnote omitted.)
{¶ 14} We continue to believe that our discussion in Contreras concerning
the specific procedural reporting requirements of R.C. 4113.52(A)(1)(a) comports
with the express terms of the Whistleblower Statute. Here, appellant orally notified
appellees of the claimed health and safety violations concerning airborne chemicals
at the Structural Fibers plant. Appellees failed to address appellant’s concerns.
Thereafter, appellant proceeded to report the matter to OSHA without ever having
provided appellees with a written report describing the alleged violations. The fact
that appellant reported to OSHA without having notified his employer both orally
and in writing concerning the alleged health and safety violations is fatal to his
claim for protection under R.C. 4113.52(A)(1)(a).
{¶ 15} Nevertheless, in his third proposition of law, appellant contends that
he was a protected whistleblower under the terms of R.C. 4113.52(A)(2). R.C.
4113.52(A)(2) addresses the situation where an employee becomes aware in the
course of his or her employment of a violation of R.C. Chapter 3704 (Air Pollution
12
January Term, 1997
Control Act), 3734 (Solid and Hazardous Wastes Act), 6109 (Safe Drinking Water
Act), or 6111 (Water Pollution Control Act) that is a criminal offense. Under such
circumstances, the employee may directly notify any appropriate public official or
agency with regulatory authority over the employer and the industry, trade, or
business in which the employer is engaged. There is no requirement in R.C.
4113.52(A)(2) that the employee notify his or her employer of the perceived
violations. Therefore, appellant suggests that the trial court erred in dismissing his
statutory cause of action solely because he had failed to file a written report with
his employer.
{¶ 16} The court of appeals refused to address appellant’s arguments in this
regard, stating:
“In the second assignment of error, appellant maintains that the trial court
erred in dismissing his whistle-blower claim because R.C. 4113.52(A)(2) dispenses
with any notice to the employer when the complaint involves R.C. Chapters 3704
and 3734. * * *
“A review of the record, however, reveals that appellant never argued this
theory in the trial court. It is well established that an appellant may not assert a new
theory for the first time before the appellate court. * * * Accordingly, this court
will not address appellant’s argument that no notice to the employer is required for
complaints regarding R.C. Chapters 3704 and 3734.”
{¶ 17} However, we find that appellant clearly raised a claim for protection
under R.C. 4113.52(A)(2) in Count One of his amended complaint, wherein he set
forth the following relevant allegations in support of his statutory cause of action
for violations of the Whistleblower Statute:
“4. Beginning in late January, 1991, in the course of his employment with
defendant, plaintiff became aware of activities, conditions and company policies at
the work place which constituted an imminent risk of physical harm to himself and
other employees and a hazard to public health.
13
SUPREME COURT OF OHIO
“5. Among other things, these included the use and discharge into the air
in the work area of highly toxic or corrosive chemicals such as acetone, styrene,
epoxy resins, and cobalt mixes.
“6. These activities, conditions and company policies at the work place
constitute a violation of various state and federal laws including but not limited to
the Occupational Safety and Health Act of 1970 and Ohio Revised Code Chapters
3704 and 3734.
“7. These activities, conditions and company policies also constitute a
criminal offense under those laws.
“* * *
“10. When the problems were not corrected, plaintiff reported them to the
Occupational Safety and Health Administration. * * *
“11. Shortly after plaintiff reported these matters to OSHA, defendant
began to discriminate and retaliate against plaintiff because of making this report
and these charges.
“* * *
“17. Defendant’s conduct [in retaliating against appellant for filing a report
with OSHA], is unlawful retaliation, specifically prohibited by R.C. 4113.51-.52 *
* *.” (Emphasis added.)
{¶ 18} A fair reading of the amended complaint reveals that appellant raised
a claim for protection under R.C. 4113.52(A)(2) by alleging that he had reported to
OSHA concerning perceived criminal violations of R.C. Chapters 3704 and 3734.
R.C. 4113.52(A)(2) specifically authorizes an employee to report such matters
directly to any appropriate public official or agency having regulatory authority
over the employer. Therefore, as a matter of law, there is no requirement for a
reporter of information under R.C. 4113.52(A)(2) to inform his or her employer,
either orally or in writing, concerning violations of the type described in R.C.
4113.52(A)(2). Accordingly, we disagree with the court of appeals’ conclusion that
14
January Term, 1997
appellant has somehow waived his claim that he was a protected reporter of
information under R.C. 4113.52(A)(2). The claim was specifically asserted in the
factual allegations of appellant’s amended complaint. Apparently, the court of
appeals believed that appellant was obligated to raise the issue of R.C.
4113.52(A)(2) in response to appellees’ motion for summary judgment. However,
appellees’ motion for summary judgment did not attack appellant’s claim for
protection under R.C. 4113.52(A)(2). See discussion infra. Therefore, any
omission by appellant to defend his (A)(2) claim for whistleblower protection in
response to appellees’ motion for summary judgment cannot constitute an
abandonment of that claim.
{¶ 19} Appellees contend that they were entitled to summary judgment on
the statutory whistleblower cause of action despite appellant’s claim for protection
under R.C. 4113.52(A)(2). Specifically, appellees claim that their motion for
summary judgment obligated appellant to produce evidence “beyond the
allegations and defenses of his pleading to show facts of his awareness about
environmental crimes under R.C. Chapters 3704, 3734, 6109 or 6111 * * *.” To
support this argument, appellees cite Wing v. Anchor Media, Ltd. of Texas (1991),
59 Ohio St.3d 108
,570 N.E.2d 1095
, paragraph three of the syllabus, wherein a majority of this court held that “[a] motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial.” However, in Dresher v. Burt (1996),75 Ohio St.3d 280, 295
,662 N.E.2d 264, 275
, we limited paragraph three of the syllabus of Wing. In Dresher, at 293,662 N.E.2d at 274
, we held:
“[A] party seeking summary judgment, on the ground that the nonmoving
party cannot prove its case, bears the initial burden of informing the trial court of
the basis for the motion, and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on the essential
element(s) of the nonmoving party’s claims. The moving party cannot discharge
15
SUPREME COURT OF OHIO
its initial burden under Civ.R. 56 simply by making a conclusory assertion that the
nonmoving party has no evidence to prove its case. Rather, the moving party must
be able to specifically point to some evidence of the type listed in Civ.R. 56(C)
which affirmatively demonstrates that the nonmoving party has no evidence to
support the nonmoving party’s claims. If the moving party fails to satisfy its initial
burden, the motion for summary judgment must be denied. However, if the moving
party has satisfied its initial burden, the nonmoving party then has a reciprocal
burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a
genuine issue for trial and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party.”3
(Emphasis added in part and deleted in part.)
3. Civ.R. 56 sets forth, among other things, the standards to be applied in a summary judgment
proceeding. Civ.R. 56 provides:
“(A) For party seeking affirmative relief. A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration
of the time permitted under these rules for a responsive motion or pleading by the adverse party, or
after service of a motion for summary judgment by the adverse party, move with or without
supporting affidavits for a summary judgment in his favor upon all or any part thereof. If the action
has been set for pretrial or trial, a motion for summary judgment may be made only with leave of
court.
“(B) For defending party. A party against whom a claim, counterclaim, or cross-claim is
asserted or a declaratory judgment is sought may at any time, move with or without supporting
affidavits for a summary judgment in his favor as to all or any part thereof. If the action has been
set for pretrial or trial, a motion for summary judgment may be made only with leave of court.
“(C) Motion and proceedings thereon. The motion shall be served at least fourteen days
before the time fixed for hearing. The adverse party prior to the day of hearing may serve and file
opposing affidavits. Summary judgment shall be rendered forthwith if the pleading, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending
case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No
evidence or stipulation may be considered except as stated in this rule. A summary judgment shall
not be rendered unless it appears from such evidence or stipulation and only therefrom, that
reasonable minds can come to but one conclusion and that conclusion is adverse to the party against
whom the motion for summary judgment is made, such party being entitled to have the evidence or
stipulation construed most strongly in his favor. A summary judgment, interlocutory in character,
may be rendered on the issue of liability alone although there is a genuine issue as to the amount of
damages.
“* * *
“(E) Form of affidavits; further testimony; defense required. Supporting and opposing
affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in
16
January Term, 1997
{¶ 20} Here, appellant’s amended complaint clearly raised a claim for
whistleblower protection under R.C. 4113.52(A)(2). In the amended complaint,
appellant also sought to advance a claim for protection under R.C.
4113.52(A)(1)(a). In their motion for summary judgment, appellees asserted that
they were entitled to judgment on appellant’s entire statutory cause of action for
violations of the Whistleblower Statute, stating that “(1) Kulch cannot establish a
prima facie case [of violations of the Whistleblower Statute] because he failed to
satisfy the detailed statutory prerequisites to filing a lawsuit under R.C. §4113.52;
and, (2) Kulch was terminated for legitimate business reasons * * *.” In a
memorandum in support of the motion, appellees argued that appellant could not
establish a prima facie case of violations of the Whistleblower Statute for several
reasons. First, appellees argued that Kulch’s report to OSHA did not concern
criminal violations of the Occupational Safety and Health Act of 1970, Section 651
et seq., Title 29, U.S. Code. In this regard, appellees claimed that Kulch’s report
to OSHA was not a report concerning a “criminal offense” within the meaning of
R.C. 4113.52(A)(1)(a). Second, appellees argued that, contrary to R.C.
4113.52(A)(1)(a), Kulch had failed to orally notify them of health and safety
violations before reporting the matter to OSHA. Third, appellees asserted that
Kulch had never provided them with a written report concerning the alleged health
and safety violations. Alternatively, appellees argued that Kulch could not establish
a prima facie case of violations of the Whistleblower Statute, since Kulch had been
terminated for, inter alia, unsatisfactory work performance. To support these
evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated
therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be
attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed
by depositions or by further affidavits. When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials
of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial. If he does not so respond, summary
judgment, if appropriate, shall be entered against him.”
17
SUPREME COURT OF OHIO
various arguments, appellees relied upon deposition testimony, affidavits, and other
materials of the type listed in Civ.R. 56(C).
{¶ 21} In response to the motion for summary judgment, appellant relied
upon evidentiary materials of the type listed in Civ.R. 56(C) indicating that there
were genuine issues of material fact remaining to be litigated concerning the
reasons for his termination. Appellant also pointed to evidence indicating that he
had verbally notified appellees regarding the conditions at the Structural Fibers
plant before he reported the matter to OSHA, but he did not raise any specific issue
or argument concerning R.C. 4113.52(A)(2). However, in their motion for
summary judgment, appellees pointed to no evidentiary materials indicating the
lack of a genuine issue of material fact whether Kulch was a protected
whistleblower under the terms of R.C. 4113.52(A)(2) for having directly reported
to OSHA concerning alleged criminal violations of R.C. Chapters 3704 and 3734.
{¶ 22} Appellees’ motion for summary judgment clearly dealt with
appellant’s failure to comply with the specific reporting requirements of R.C.
4113.52(A)(1)(a). In this regard, appellees were successful in defeating any claim
that appellant was a protected whistleblower under the provisions of R.C.
4113.52(A)(1)(a), since it was undisputed that appellant had reported to OSHA
without having notified his employer, both orally and in writing, concerning the
alleged criminal violations. However, appellees never satisfied (or even attempted
to satisfy) their initial burden under Civ.R. 56 of demonstrating that there were no
genuine issues of material fact concerning appellant’s claim for whistleblower
protection under the provisions of R.C. 4113.52(A)(2). Thus, appellant had no
obligation to respond to the motion by raising or otherwise supporting the factual
allegations already contained in his amended complaint pertaining to his claim for
possible whistleblower protection under R.C. 4113.52(A)(2).
{¶ 23} The trial court granted summary judgment in favor of appellees on
appellant’s entire statutory cause of action solely because appellant had not
18
January Term, 1997
complied with the specific reporting requirements of R.C. 4113.52(A)(1)(a).
Appellant’s amended complaint sought whistleblower protection under R.C.
4113.52(A)(2) as well as 4113.52(A)(1)(a). By entering summary judgment
against appellant on his entire statutory claim, the trial court erred to the extent that
it dismissed appellant’s claim for protection under R.C. 4113.52(A)(2). Appellees
never challenged appellant’s claim that his report to OSHA was an authorized
report under R.C. 4113.52(A)(2). Moreover, contrary to appellees’ suggestions,
appellant had no obligation to respond to the motion for summary judgment by
producing evidence on every element of his claim for protection under R.C.
4113.52(A)(2), since appellees never discharged their initial burden of
demonstrating the absence of a genuine issue of material fact concerning that claim
and their entitlement to judgment as a matter of law.
{¶ 24} Appellees now protest that appellant never reported the alleged
criminal violations of R.C. Chapters 3704 and 3734 to the public authority
responsible for enforcement of those laws. Appellees also contend that the matters
reported to OSHA did not constitute criminal violations of R.C. Chapters 3704 and
3734. Appellant counters appellees’ first argument by noting that (1) R.C.
4113.52(A)(2) authorizes an employee to report alleged criminal violations
involving R.C. Chapters 3704 and 3734 to any appropriate public official or agency
that has regulatory authority over the employer, and (2) OSHA was a regulatory
agency with regulatory authority over appellees. Appellant counters appellees’
second argument by asserting that his report to OSHA clearly involved criminal
violations of R.C. Chapters 3704 and 3734. Additionally, appellant claims that his
report to OSHA was authorized under R.C. 4113.52(A)(2) even if no actual
violation of R.C. Chapters 3704 and 3734 occurred, since he reasonably believed
that appellees’ conduct involved criminal violations of those Chapters of the
Revised Code. Appellant’s contentions in this regard are bolstered by our recent
decision in Fox v. Bowling Green (1996), 76 Ohio St.3d 534
,668 N.E.2d 898
,
19
SUPREME COURT OF OHIO
wherein we stated that, “[f]rom a public policy perspective, the ‘reasonable belief’
standard is the only acceptable interpretation of the [whistleblower] statute. R.C.
4113.52 was designed to give whistleblowers some protection in Ohio’s
employment-at-will environment. * * * The public, in turn, relies on
whistleblowers for protection. The ‘actual violation’ standard could delay a
whistleblower’s reporting of a violation which endangers the public safety, or at
worst, prevent him from reporting the violation at all. The statute expects a
whistleblower to be vigilant, attuned to the public’s safety, loyal to his employer,
and sometimes even brave -- it does not require him to be infallible.” (Emphasis
added.) Id. at 538-539, 668 N.E.2d at 902
.
{¶ 25} Obviously, the proper place for appellees to have raised their
arguments concerning the viability of appellant’s claim for whistleblower
protection under R.C. 4113.52(A)(2) was in their motion for summary judgment at
the trial court level. This appellees failed to do. Accordingly, we will not address
the merits of appellees’ contentions that appellant is not a protected whistleblower
under the provisions of R.C. 4113.52(A)(2). These arguments may be raised before
the trial court on remand.
{¶ 26} In conclusion, we find that the grant of summary judgment in favor
of appellees on appellant’s statutory cause of action for violations of the
Whistleblower Statute was appropriate to the extent that appellant claimed
protection as a whistleblower under R.C. 4113.52(A)(1)(a). However, we find that
the trial court erred in granting summary judgment in favor of appellees on
appellant’s claim for protection under R.C. 4113.52(A)(2). Accordingly, we reject
appellant’s first proposition of law, but find his third proposition of law to be well
taken. We vacate that portion of the trial court’s judgment which dismissed
appellant’s claims for protection under R.C. 4113.52(A)(2), reinstate appellant’s
statutory claim that he was unlawfully retaliated against by appellees for having
20
January Term, 1997
filed an authorized report under R.C. 4113.52(A)(2), and remand this cause to the
trial court for further proceedings on the statutory cause of action.
II
Greeley Claim
{¶ 27} In his second proposition of law, appellant contends that he also has
an independent common-law cause of action based upon Greeley, supra,
49 Ohio St.3d 228
,551 N.E.2d 981
, for wrongful discharge in violation of public policy.
Appellant suggests that he is entitled to maintain his Greeley claim either in
addition to or in lieu of his statutory cause of action. We agree with appellant’s
contentions in this regard. Accordingly, for the reasons that follow, we reverse that
portion of the court of appeals’ judgment which affirmed the grant of summary
judgment against appellant on the claim of wrongful discharge in violation of public
policy.4
{¶ 28} In Greeley, 49 Ohio St.3d 228
,551 N.E.2d 981
, Robert Greeley, an
at-will employee, was allegedly discharged from his employment solely because
his employer had received a court order requiring the withholding of a specific
amount of Greeley’s wages for child support. Greeley sued his former employer
for wrongful discharge, since R.C. 3113.213(D) prohibits employers from using a
child support wage withholding order as a basis for discharging an employee. R.C.
3113.213(D) sets forth a monetary fine for employers who violate the statute but
does not provide for a private cause of action on behalf of the aggrieved employee.
In Greeley, we recognized a public-policy exception to the employment-at-will
doctrine and held that Greeley was entitled to maintain a cause of action in tort
4. The court of appeals apparently assumed (and the parties to this appeal apparently agree) that the
trial court granted summary judgment in favor of appellees on appellant’s claim of wrongful
discharge in violation of public policy. We accept this assumption for purposes of this appeal.
However, we note, in passing, that appellees moved for judgment on the pleadings (Civ.R. 12[C])
with respect to appellant’s claim of wrongful discharge in violation of public policy -- not for
summary judgment under Civ.R. 56.
21
SUPREME COURT OF OHIO
against his former employer for wrongful discharge. Id. at 233-235
,551 N.E.2d at 986-987
. Specifically, in Greeley, at paragraphs one, two and three of the syllabus,
we held that:
“1. Public policy warrants an exception to the employment-at-will doctrine
when an employee is discharged or disciplined for a reason which is prohibited by
statute. (R.C. 3113.213[D], construed and applied.)
“2. Henceforth, the right of employers to terminate employment at will for
‘any cause’ no longer includes the discharge of an employee where the discharge
is in violation of a statute and thereby contravenes public policy. (Fawcett v. G.C.
Murphy & Co. [1976], 46 Ohio St.2d 245
,75 O.O.2d 291
,348 N.E.2d 144
,
modified.)
“3. In Ohio, a cause of action for wrongful discharge in violation of public
policy may be brought in tort.”
{¶ 29} Additionally, in Greeley, we recognized that the public-policy
exception to the employment-at-will doctrine need not be premised solely upon a
violation of a specific statute. We said that: “Today, we only decide the question
of a public policy exception to the employment-at-will doctrine based on violation
of a specific statute. This is not to say that there may not be other public policy
exceptions to the doctrine but, of course, such exceptions would be required to be
of equally serious import as the violation of a statute.” (Emphasis added.) Id.,
49 Ohio St.3d at 234-235
,551 N.E.2d at 987
.
{¶ 30} In Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St.3d 541
,584 N.E.2d 729
, syllabus, this court held that “[a]bsent statutory authority, there is no
common-law basis in tort for a wrongful discharge claim.” The syllabus in Tulloh
was supported by a majority composed of two justices and two visiting judges.
{¶ 31} However, in Painter v. Graley (1994), 70 Ohio St.3d 377
,639 N.E.2d 51
, paragraphs two and three of the syllabus, we held that:
“2. To state a claim of wrongful discharge in violation of public policy, a
22
January Term, 1997
plaintiff must allege facts demonstrating that the employer’s act of discharging him
contravened a ‘clear public policy.’ (Greeley v. Miami Valley Maintenance
Contractors, Inc. [1990], 49 Ohio St.3d 228
,551 N.E.2d 981
, affirmed and
followed.)
“3. ‘Clear public policy’ sufficient to justify an exception to the
employment-at-will doctrine is not limited to public policy expressed by the General
Assembly in the form of statutory enactments, but may also be discerned as a matter
of law based on other sources, such as the Constitutions of Ohio and the United
States, administrative rules and regulations, and the common law. (Tulloh v.
Goodyear Atomic Corp. [1992], 62 Ohio St.3d 541
,584 N.E.2d 729
, overruled.)”
(Emphasis added.)
{¶ 32} Therefore, Greeley and Painter recognize an exception to the
employment-at-will doctrine when an at-will employee is discharged or disciplined
for a reason that contravenes clear public policy. There is no question that Greeley
and Painter recognize that clear public policy may be ascertained from a statutory
provision or from any number of other sources. If there was ever any serious
question whether a specific statute had to be violated for Greeley to apply, Painter
answered that question in the negative by expressly overruling Tulloh, supra.
See Painter, paragraph three of the syllabus. The question whether the Greeley public- policy exception to the employment-at-will doctrine applies only in cases involving a statutory violation was soundly rejected not only in Painter, but in the recent case of Collins v. Rizkana (1995),73 Ohio St.3d 65
,652 N.E.2d 653
.
{¶ 33} In determining whether appellant has a viable common-law cause of
action under Greeley and its progeny for tortious wrongful discharge in violation
of public policy, we reaffirm the following suggested analysis set forth in Painter, supra,
70 Ohio St.3d at 384
,639 N.E.2d at 57
, fn. 8:
“In reviewing future cases, Ohio courts may find useful the analysis of
Villanova Law Professor H. Perritt, who, based on review of cases throughout the
23
SUPREME COURT OF OHIO
country, has described the elements of the tort as follows:
“‘1. That [a] clear public policy existed and was manifested in a state or
federal constitution, statute or administrative regulation, or in the common law (the
clarity element).
“‘2. That dismissing employees under circumstances like those involved in
the plaintiff’s dismissal would jeopardize the public policy (the jeopardy element).
“‘3. The plaintiff’s dismissal was motivated by conduct related to the public
policy (the causation element).
“‘4. The employer lacked overriding legitimate business justification for
the dismissal (the overriding justification element).’ (Emphasis sic.)
“H. Perritt, The Future of Wrongful Dismissal Claims: Where Does
Employer Self Interest Lie? (1989), 58 U.Cin.L.Rev. 397, 398-399.”
{¶ 34} We recently applied this same analysis in Collins, supra,
73 Ohio St.3d at 69-74
,652 N.E.2d at 657-660
, in determining that, in Ohio, a cause of action may be brought for the tort of wrongful discharge in violation of public policy based on sexual harassment/discrimination in the workplace. In Collins, we noted that the clarity and jeopardy elements of the tort of wrongful discharge are questions of law to be determined by the court.Id. at 70
, 652 N.E.2d at 658.
Conversely, the causation and overriding justification elements are questions of fact
for the trier-of-fact. Id. Thus, given the procedural disposition of the case at bar,
we consider only the clarity and jeopardy elements of the tort of wrongful
discharge.
{¶ 35} Turning to the clarity element, we are easily able to identify at least
two main sources of public policy prohibiting the alleged retaliatory discharge of
appellant based on his report to OSHA. For the reasons that follow, we find that
each of these two sources of public policy is independently sufficient to justify an
exception to the employment-at-will doctrine and to warrant recognition of a cause
of action for wrongful discharge in violation of public policy.
24
January Term, 1997
{¶ 36} The first main source of expressed public policy can be found in
Section 660(c), Title 29, U.S.Code, which specifically prohibits employers from
retaliating against employees (like appellant) who file OSHA complaints. Section
660(c) does not provide an employee with a private right of action against the
employer. Section 660(c)(1), Title 29, U.S.Code provides: “No person shall
discharge or in any manner discriminate against any employee because such
employee has filed any complaint or instituted or caused to be instituted any
proceeding under or related to this chapter [the federal Occupational Safety and
Health Act, Section 651 et seq., Title 29, U.S.Code] * * * or because of the exercise
by such employee on behalf of himself or others of any right afforded by this
chapter.” As explained in our discussion infra, this federal statute constitutes a
sufficiently clear expression of public policy to warrant an exception to the doctrine
of employment at will, since the federal statute is consistent with Ohio’s public
policy favoring workplace safety.
{¶ 37} Appellees suggest, however, that federal statutes cannot be used to
determine whether there is a sufficiently clear public policy to justify an exception
to the employment-at-will doctrine. In this regard, appellees point to paragraph
three of the syllabus in Painter, 70 Ohio St.3d 377
,639 N.E.2d 51
, which does not include any reference to federal statutes as providing a basis for a Greeley claim. However, the analysis of the “clarity element” we employ in the case at bar is the one specifically suggested inPainter, supra, at 384
,639 N.E.2d at 57, fn. 8
. That analysis mandates consideration of the question whether clear public policy is manifested in a state or federal constitution, statute or administrative regulation, or in the common law.Id.
See, also, Collins,73 Ohio St.3d at 69-70
,652 N.E.2d at 657-658
, wherein we adopted the suggested analysis set forth in footnote eight of the Painter decision, including the suggested analysis of the clarity element of the tort of wrongful discharge. Furthermore, in Mers v. Dispatch Printing Co. (1985),19 Ohio St.3d 100, 103
, 19 OBR 261, 263,483 N.E.2d 150, 153
, we recognized
25
SUPREME COURT OF OHIO
that the employment-at-will doctrine in Ohio is not “without any defined limits.”
In Mers, we specifically cited Section 660(c), Title 29, U.S.Code as one example
of the type of laws forbidding retaliatory discharge. Id. at 103
, 19 OBR at 263-264,483 N.E.2d at 153, fn. 2
.
{¶ 38} Courts in other jurisdictions have also determined that the public
policy embodied in the federal Occupational Safety and Health Act, Section 651 et
seq., Title 29, U.S.Code, may serve as a basis for recognition of a common-law
cause of action for wrongful discharge in violation of public policy. See, e.g.,
Cloutier v. Great Atlantic & Pacific Tea Co., Inc. (1981), 121 N.H. 915
,436 A.2d 1140
, and Sorge v. Wright’s Knitwear Corp. (E.D.Pa.1993),832 F.Supp. 118
. In this regard, we are particularly persuaded by the case of Cerracchio v. Alden Leeds, Inc. (1988),223 N.J. Super. 435
,538 A.2d 1292
(holding that at-will employee
discharged for filing OSHA complaint could maintain tort action for wrongful
discharge in violation of New Jersey’s public policy favoring workplace safety).
{¶ 39} Ohio’s public policy is clearly in keeping with the laudable
objectives of the federal Occupational Safety and Health Act. The public policy of
this state demands that employees be provided with a safe work environment and
that unsafe working conditions be corrected. This conclusion is supported by a host
of statutes and constitutional provisions favoring safety in the workplace. See, e.g.,
Sections 34 and 35, Article II of the Ohio Constitution; R.C. 4101.11 (duty of
employer to protect employees and frequenters); R.C. 4101.12 (duty of employer
to furnish safe place of employment); R.C. 4121.13 (safety and investigative duties
of the Administrator of Workers’ Compensation); R.C. 4121.17 (duty of the Bureau
of Workers’ Compensation to investigate petitions concerning unsafe employment
or places of employment); R.C. 4121.47 (no employer shall violate a specific safety
rule adopted by the Administrator of Workers’ Compensation or an Act of the
General Assembly to protect the lives, health and safety of employees); and R.C.
4121.48 (occupational safety loan program to reduce employment hazards and
26
January Term, 1997
promote health, and safety of employees). Retaliation against employees who file
OSHA complaints concerning unsafe or unhealthy conditions in the workplace is
an absolute affront to Ohio’s public policy favoring workplace safety. Such
retaliation clearly contravenes the public policy of this state.
{¶ 40} The second main source of expressed public policy prohibiting
appellant’s alleged retaliatory discharge is R.C. 4113.52, which embodies a clear
public policy favoring whistleblowing. However, the public policy embodied in
the Whistleblower Statute is limited. By imposing strict and detailed requirements
on certain whistleblowers and restricting the statute’s applicability to a narrow set
of circumstances, the legislature clearly intended to encourage whistleblowing only
to the extent that the employee complies with the dictates of R.C. 4113.52. As we
held in Contreras, supra,
73 Ohio St.3d 244
,652 N.E.2d 940
, syllabus: “In order
for an employee to be afforded protection as a ‘whistleblower,’ such employee must
strictly comply with the dictates of R.C. 4113.52. Failure to do so prevents the
employee from claiming the protections embodied in the statute.”
{¶ 41} In Contreras, the plaintiff-appellant, Phillip Contreras, was
allegedly discharged from his employment for whistleblowing. Contreras sued his
former employer for alleged violations of the Whistleblower Statute and for
wrongful discharge in violation of public policy. In Contreras, we found that
because Contreras had not complied with the specific reporting requirements of
R.C. 4113.52, he could not avail himself of the protections of the Whistleblower
Statute. Id., 73 Ohio St.3d at 249, 652 N.E.2d at 944. Further, we found that the
question whether Contreras was entitled to maintain a cause of action for the tort of
wrongful discharge was moot, stating: “If appellant was entitled to maintain a
Greeley claim, an issue that today we do not decide, then that claim would have to
be based upon the public policy embodied in R.C. 4113.52. Since appellant did not
comply with the statute in the first instance he would have no foundation for a
Greeley claim if, in fact, he was entitled to assert such a claim. Therefore, in this
27
SUPREME COURT OF OHIO
case the issue is moot.” Id. at 251, 652 N.E.2d at 946. The obvious implication of
Contreras is that an employee who fails to strictly comply with the requirements of
R.C. 4113.52 cannot base a Greeley claim solely upon the public policy embodied
in that statute.
{¶ 42} Here, appellant claims to have been wrongfully discharged for
having reported his employer to OSHA for what he apparently believed were
criminal violations of the Occupational Safety and Health Act and R.C. Chapters
3704 and 3734. In our discussion in Part I, supra, we determined that appellant did
not strictly comply with the requirements of R.C. 4113.52(A)(1)(a) in reporting his
employer to OSHA. Therefore, it is clear that appellant has no foundation for a
Greeley claim based on the public policy embodied in R.C. 4113.52 protecting
employees who report matters in accordance with R.C. 4113.52(A)(1)(a).
However, in our discussion in Part I, supra, we determined that the trial court erred
in dismissing appellant’s claim for whistleblower protection under R.C.
4113.52(A)(2). Therefore, assuming that appellant complied with the reporting
requirements of R.C. 4113.52(A)(2) and that appellees retaliated against him in a
manner contrary to the terms of the Whistleblower Statute, appellant has stated a
second and independent foundation for a Greeley claim premised upon the clear
public policy embodied in R.C. 4113.52.
{¶ 43} Contreras, supra,
73 Ohio St.3d 244
,652 N.E.2d 940
, is readily
distinguishable from the case at bar. The plaintiff-employee in Contreras had no
viable statutory cause of action for protection under the Whistleblower Statute but
asserted a Greeley claim based solely on the public policy embodied in R.C.
4113.52. However, the public policy embodied in R.C. 4113.52 could not have
supported that claim, since the employee had failed in the first instance to comply
with the dictates of the statute. In the case at bar, appellant continues to have a
viable claim for whistleblower protection, since he arguably complied with R.C.
4113.52(A)(2) in reporting matters to OSHA. Thus, to the extent that he complied
28
January Term, 1997
with R.C. 4113.52, appellant has established a firm foundation for a Greeley claim
for wrongful discharge in violation of the public policy embodied in the
Whistleblower Statute. Additionally, and in any event, appellant’s Greeley claim
is fully and independently supported by the first source of public policy identified
in our discussion, supra -- the clear public policy of this state encouraging safety in
the workplace and forbidding retaliation against those who file OSHA complaints
aimed at correcting unsafe and unhealthy working conditions.
{¶ 44} Having identified two separate and independent sources of clear
public policy justifying an exception to the employment-at-will doctrine, we must
now consider whether dismissing employees under circumstances like those
involved in this case would jeopardize the public policy (the jeopardy element).
{¶ 45} With respect to the first identified source of public policy, there is
no question that Ohio’s policy favoring workplace safety would be seriously
compromised (jeopardized) if employers were allowed to fire employees for
reporting matters to OSHA. Obviously, such retaliatory practices could deter
employees from reporting what they believe to be legitimate health and safety
concerns. Here, appellant complained to OSHA concerning the health and safety
of his work environment. He claims to have done so based upon a good faith belief
that the complaint was valid. According to appellant, he was retaliated against and
ultimately discharged for having filed his complaint with OSHA. Under these
circumstances, we find that the jeopardy element of the tort of wrongful discharge
has clearly been satisfied.
{¶ 46} The jeopardy analysis relating to the second identified source of
clear public policy, R.C. 4113.52, is a bit more difficult. This is so because R.C.
4113.52 contains certain civil remedies for qualifying whistleblowers. However,
the civil remedies set forth in R.C. 4113.52 are not adequate to fully compensate an
aggrieved employee who is discharged, disciplined, or otherwise retaliated against
in violation of the statute. In this regard, recognizing the right of an aggrieved
29
SUPREME COURT OF OHIO
employee who is retaliated against in violation of R.C. 4113.52 to maintain a
Greeley-based common-law cause of action for violation of the public policy
embodied in that statute would serve to encourage the legislative objectives of R.C.
4113.52 and complement the limited remedies available under the Whistleblower
Statute.
{¶ 47} Appellees suggest, however, that Greeley, supra,
49 Ohio St.3d 228
,551 N.E.2d 981
, applies only in cases where an employee is discharged or disciplined for a reason prohibited by a statute that provides the employee no specific remedy. We reject such a narrow interpretation of Greeley. The syllabus in Greeley does not say that. Greeley and its progeny stand for the proposition that, in Ohio, the judicially recognized doctrine of employment at will has certain limitations. One of those limitations is that the doctrine will not be followed in cases where an at-will employee is discharged or disciplined for a reason that violates a statute and thereby contravenes public policy.Greeley, supra,
paragraphs one and two of the syllabus. The syllabus in Greeley makes no exception for statutes like R.C. 4113.52 that contain remedial provisions. That, of course, was no mistake. The Greeley public-policy exception to the doctrine of employment at will was not intended to apply only where a statute provides no civil remedies. Rather, Greeley and its progeny are intended to bolster the public-policy of this state and to advance the rights of employees who are discharged or disciplined in contravention of clear public policy. Accord Amos v. Oakdale Knitting Co. (1992),331 N.C. 348, 356
,416 S.E.2d 166, 171
(holding that a public policy exception to the employment-at-will doctrine adopted by the North Carolina Supreme Court in Coman v. Thomas Mfg. Co. [1989],325 N.C. 172
,381 S.E.2d 445
, was “not just a remedial gap-filler. It is a judicially recognized outer limit to
a judicially created doctrine, designed to vindicate the rights of employees fired for
reasons offensive to the public policy of [North Carolina]. The existence of other
remedies, therefore, does not render the public policy exception moot.”). We are
30
January Term, 1997
not now prepared nor have we ever been inclined to limit Greeley to the extent
urged by appellees.
{¶ 48} Additionally, recognizing the right of an at-will employee who is
discharged or disciplined in violation of R.C. 4113.52 to maintain a Greeley claim,
a statutory whistleblower claim, or both, would foster (not hinder) the public policy
of this state to protect whistleblowers from unlawful retaliatory measures.
Therefore, the mere existence of statutory remedies in R.C. 4113.52 does not,
without more, operate to bar recognition of appellant’s Greeley claim for tortious
wrongful discharge in violation of R.C. 4113.52. This conclusion is supported by
a number of our prior cases, including Helmick v. Cincinnati Word Processing, Inc.
(1989), 45 Ohio St.3d 131
,543 N.E.2d 1212
; Kerans v. Porter Paint Co. (1991),61 Ohio St.3d 486
,575 N.E.2d 428
; andCollins, supra,
73 Ohio St.3d 65
,652 N.E.2d 653
.
{¶ 49} In Helmick, at 133-135, 543 N.E.2d at 1215-1216
, this court determined that the provisions of R.C. Chapter 4112 prohibiting employment discrimination based on sex did not preempt common-law intentional tort claims arising out of acts of sexual discrimination in the workplace. We reached this conclusion even though the statutory scheme provided specific remedies for the victims of the sex discrimination. We noted that the relief available under the statutory scheme did not parallel the damages available in a common-law tort action.Id.
We held that “[a]llowing a plaintiff to pursue common-law remedies in lieu of the relief provided under R.C. Chapter 4112 creates no conflict and serves to supplement the limited protection and coverage of that chapter.”Id.
at paragraph
two of the syllabus.
{¶ 50} Similarly, in Kerans, supra,
61 Ohio St.3d 486
,575 N.E.2d 428
,
paragraph one of the syllabus, we held that “[t]he workers’ compensation statute
does not provide the exclusive remedy for claims based upon sexual harassment in
the workplace.” We reached this conclusion, since the relief available under the
31
SUPREME COURT OF OHIO
statute would be insufficient to remedy the damages actually suffered by the victim.
Id. at 489
,575 N.E.2d at 431
.
{¶ 51} Recently, in Collins, supra,
73 Ohio St.3d 65
,652 N.E.2d 653
, we recognized the right of an employee to maintain a Greeley claim based upon sexual harassment/discrimination in the workplace. We did so despite the fact that the employee in Collins was discriminated against in violation of the public policy embodied in R.C. Chapter 4112, which sets forth specific remedies for victims of sexual harassment/discrimination in the workplace. We note, however, that the employee in Collins was unable to avail herself of the remedies set forth in R.C. Chapter 4112 because her employer never employed four or more people and, thus, did not come within the scope of R.C. Chapter 4112.Id. at 74
, 652 N.E.2d at 660.
{¶ 52} It is clear from the reasoning of Helmick, Kerans, and perhaps even
Collins, supra,
that R.C. 4113.52 does not provide the exclusive remedy for at-will
employees who are discharged or disciplined for a reason prohibited by the public
policy embodied in that statute. The remedies available pursuant to R.C. 4113.52
are not sufficient to provide the complete relief that would otherwise be available
in a Greeley-based cause of action for the tort of wrongful discharge. The statute
does not provide for certain compensatory damages and does not specifically
authorize recovery of punitive damages. Most important, the statute permits the
court to fashion an award based upon whatever the court deems to be appropriate.
See R.C. 4113.52(E). Clearly, the relief available to a whistleblower under a
statutory cause of action comes nowhere near the complete relief available in an
action based upon the Greeley public-policy exception to the doctrine of
employment at will. In our judgment, the relief available in an action for the tort
of wrongful discharge merely complements the limited statutory relief available
pursuant to R.C. 4113.52. Thus, we find that the mere existence of statutory
remedies for violations of R.C. 4113.52 does not operate as a bar to alternative
32
January Term, 1997
common-law remedies for wrongful discharge in violation of the public policy
embodied in the Whistleblower Statute.
{¶ 53} Appellees note, however, that there was no cause of action in Ohio
for an employee who was discharged or disciplined for whistleblowing prior to the
enactment of R.C. 4113.52. Indeed, in 1986, in Phung v. Waste Mgt., Inc. (1986),
23 Ohio St.3d 100
, 23 OBR 260,491 N.E.2d 1114
, paragraphs one and two of the syllabus, a majority (5-2) of this court held that public policy does not require an exception to the employment-at-will doctrine when an employee is discharged for reporting to his employer that it is conducting its business in violation of law, and that an at-will employee who is discharged for reporting such matters has no common-law cause of action for wrongful discharge. In 1988, the General Assembly enacted the first version of Ohio’s Whistleblower Statute (142 Ohio Laws, Part II, 3590-3593) in apparent response to Phung. In enacting the current and former versions of R.C. 4113.52 (which are virtually identical), the General Assembly set forth the procedure a whistleblower must follow to gain statutory protection and also set forth limited statutory remedies for violations of the statute. The history of former R.C. 4113.52 reveals that the General Assembly had considered making a broader range of civil remedies available to qualified whistleblowers, but rejected that notion in favor of the more limited list of remedies set forth in both the current and former versions of R.C. 4113.52(E). See, generally, Trader v. People Working Cooperatively, Inc. (1996),74 Ohio St.3d 1286
, 1286- 1289,660 N.E.2d 737, 737-739
(Wright, J., dissenting) (discussing the legislative history of R.C. 4113.52).5 Appellees urge that this history of R.C. 4113.52 and the 5. It should be noted that the history of former R.C. 4113.52 discussed in the dissent in Trader v. People Working Cooperatively, Inc. (1996),74 Ohio St.3d 1286, 1286-1289
,660 N.E.2d 737
, 737- 739 (Wright, J., dissenting), appears to be inaccurate. The Trader dissent relied on Rheinecker v. Forest Laboratories (S.D.Ohio 1993),826 F.Supp. 256, 258, fn. 2
, as providing an accurate account of the legislative proceedings on Sub.H.B. No. 406. But the Trader dissent failed to recognize that statements made in footnote 2 ofRheinecker, supra,
were apparently inaccurate and were
subsequently modified by corrective order in Rheinecker v. Forest Laboratories, Inc. (S.D.Ohio
33
SUPREME COURT OF OHIO
fact that the statute setS forth a “new” right of action and a list of available remedies
clearly demonstrate that it was the express will of the General Assembly in enacting
R.C. 4113.52 to set forth the exclusive remedies for whistleblowers and to preempt
any possible common-law remedies for retaliatory discharges based on
whistleblowing. Again, we disagree.
{¶ 54} As indicated immediately above, the legislative history of R.C.
4113.52 clearly reveals that the General Assembly considered and rejected the
notion of providing a wider range of statutory civil remedies for qualifying
whistleblowers who are discharged or disciplined in violation of the statute.
However, this fact alone does not answer the question whether the remedies set
forth in R.C. 4113.52 are intended to be exclusive. Nor is the fact that the
legislature enacted R.C. 4113.52 in apparent response to Phung a persuasive reason
to hold that the statute preempts the formation or recognition of an independent
cause of action in tort under Greeley and its progeny for wrongful discharge in
violation of public policy. Indeed, we find nothing in R.C. 4113.52 or its history
that compels the conclusion that it was the express will of the General Assembly
that any and all causes of action premised on whistleblowing must be commenced
and remedied exclusively under R.C. 4113.52. Rather, on the basis of the
information available, it is much more reasonable to conclude that the General
Assembly enacted R.C. 4113.52 to remedy the defect in the law caused by this
court’s decision in Phung, but never intended to preclude the future development
of the common law of this state in the area of “whistleblowing.”
{¶ 55} Furthermore, if the General Assembly had truly intended to make
R.C. 4113.52 the sole and exclusive remedy for whistleblowers, it certainly knew
1994), 855 F.Supp. 913
. However, a review of the materials submitted in the case at bar concerning
the history of former R.C. 4113.52 clearly reveals that the General Assembly did, in fact, consider
making a broader range of remedies available to qualifying whistleblowers, but later rejected that
notion in favor of the more limited remedies set forth in the current and former versions of R.C.
4113.52(E).
34
January Term, 1997
how to do so. R.C. 4113.52 was presumably patterned after R.C. 124.341, Ohio’s
whistleblower protection statute pertaining to state employees. R.C. 124.341 was
specifically considered by the General Assembly when it enacted R.C. 4113.52.
This is convincingly demonstrated by the fact that R.C. 4113.52(D) specifically
refers to R.C. 124.341. Additionally, the two statutes are similar in many respects.
However, R.C. 124.341(D), unlike any provision of R.C. 4113.52, expressly states
that the remedy set forth in the statute is the “sole and exclusive remedy” available
for a qualifying whistleblower. R.C. 124.341(D) provides: “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 * * *.” (Emphasis added.) The absence of such language
in R.C. 4113.52 can hardly be characterized as a mistake or oversight. Therefore,
we presume that it was not the intent of the General Assembly in enacting R.C.
4113.52 to set forth the sole and exclusive remedies for whistleblowers or to
preempt alternative common-law remedies for retaliatory discharges based on
whistleblowing.
{¶ 56} There are a number of Ohio appellate and federal district court cases
which have held that it was the express will of the General Assembly in enacting
R.C. 4113.52 to set forth the exclusive remedies for whistleblowers and that R.C.
4113.52 preempts any possible common-law remedies for retaliatory discharges
based on whistleblowing. See, e.g., Bear v. Geetronics, Inc. (1992), 83 Ohio App.3d 163, 168-169
,614 N.E.2d 803, 807
; Murray v. Clinton Petroleum Co. (July 16, 1993), Portage App. No. 92-P-0086, unreported;1993 WL 268459
, Rayel v. Wackenhut Corp. (June 8, 1995), Cuyahoga App. No. 67459, unreported; Ungrady v. Burns Internatl. Sec. Serv., Inc. (N.D.Ohio 1991),767 F.Supp. 849, 852-853
; and Rheinecker v. Forest Laboratories, Inc. (S.D.Ohio 1993),813 F.Supp. 1307
, 1312-
35
SUPREME COURT OF OHIO
1314, reconsideration denied (1993), 826 F.Supp. 256
. A synopsis of the view that R.C. 4113.52 represents the sole and exclusive remedy for whistleblowers—a view adopted by the trial court and court of appeals in the case at bar—was set forth in a dissenting opinion to this court’s order dismissing the case ofTrader, supra,
74 Ohio St.3d 1286, 1286-1289
,660 N.E.2d 737, 737-739
(Wright, J., dissenting).
However, the views expressed in the Trader dissent and the rationale supporting
those views are wholly inconsistent with the conclusions we reach here today that
R.C. 4113.52 has no preclusive effect on appellant’s Greeley claim for tortious
wrongful discharge in violation of public policy. In our discussion, supra, we have
generally addressed and rejected many of the major points made in the Trader
dissent, but there remains one particular aspect of that dissent we feel compelled to
address specifically.
{¶ 57} In his dissent in Trader, Justice Wright (now retired from the bench)
was joined by two current members of this court in stating that “[w]here a statute
such as [R.C. 4113.52] creates a right that was not actionable at common law, the
remedy prescribed is exclusive.” Id. at 1287, 660 N.E.2d at 737
. To support this proposition, the dissent in Trader cited Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police (1991),59 Ohio St.3d 167, 169
,572 N.E.2d 87, 89
, wherein this court quoted Zanesville v. Fannan (1895),53 Ohio St. 605
,42 N.E. 703
, paragraph two of the syllabus.Trader at 1287
,660 N.E.2d at 737
. In Zanesville, paragraph two of the syllabus, this court held: “Where a statute which creates a new right, prescribes the remedy for its violation, the remedy is exclusive; but when a new remedy is given by statute for a right of action existing independent of it, without excluding other remedies already known to the law, the statutory remedy is cumulative merely, and the party may pursue either at his option.” The principle of law set forth in Zanesville that where a statute creates a new right and prescribes the remedy for its violation, the remedy is exclusive, was derived from the case of Dunn v. Kanmacher (1875),26 Ohio St. 497
. See Zanesville, supra, 53
36
January Term, 1997
Ohio St. at 620, 42 N.E. at 706. In Dunn, supra, 26 Ohio St. at 504, the true
principle of law is established that “where a statute gives a new right, and also
prescribes the remedy for its violation, the remedy so prescribed must be taken as
exclusive, unless it appears from the statute that the legislature intended
otherwise.” (Emphasis added.) Therefore, the intent of the legislature is the
determining factor whether the remedies prescribed by R.C. 4113.52 are exclusive.
As we stated in our discussion, supra, the history and language of R.C. 4113.52
move us to conclude that the General Assembly did not intend for the remedies
prescribed by R.C. 4113.52 to be exclusive.
{¶ 58} In his dissent in Trader, 74 Ohio St.3d at 1287
,660 N.E.2d at 737
- 738, Justice Wright also attempted to support the above statement that “[w]here a statute such as [R.C. 4113.52] creates a right that was not actionable at common law, the remedy prescribed is exclusive,” by citing yet another passage from Franklin Cty. Law Enforcement Assn., supra, 59 Ohio St.3d at 169,572 N.E.2d at 89-90
, wherein we cited the following passages in Fletcher v. Coney Island, Inc. (1956),165 Ohio St. 150
, 154-155,59 O.O. 212, 214
,134 N.E.2d 371
, 374-375:
“Where the General Assembly by statute creates a new right and at the same
time prescribes remedies or penalties for its violation, the courts may not intervene
and create an additional remedy. * * *
“If the General Assembly has provided a remedy for the enforcement of a
specific new right, a court may not on its own initiative apply another remedy it
deems appropriate.”
{¶ 59} However, Fletcher, supra, involved a situation wherein this court
held, and the parties to the litigation apparently agreed, that there would have been
absolutely no cause of action or remedy for the conduct at issue in Fletcher
(exclusion of an African-American from an amusement park) in the absence of
legislation, and that any right of action by the plaintiff was exclusively within the
province of the legislature. Id. at 153-154, 59 O.O. at 213-214
, 134 N.E.2d at 373-
37
SUPREME COURT OF OHIO
374. Such is clearly not the case in the area of employment at will. See discussion
infra. Moreover, unlike R.C. 4113.52, the statutes at issue in Fletcher (former R.C.
2901.35 and 2901.36) contained at least some language indicating a legislative
intent to bar any further action above and beyond the remedies provided by statute.
Id. at 153-154, 59 O.O. at 213-214
, 134 N.E.2d at 373-374. Indeed, in Fletcher, at
paragraph two of the syllabus, this court expressly held that the language of the
statutes at issue in that case demonstrated “a plain purpose and intent on the part of
the General Assembly to restrict the remedies or penalties available to those
expressly provided.”
{¶ 60} It is also interesting to note that in Rheinecker, supra, 826 F.Supp. 256, 257
, the federal district court relied on the case of Commrs. v. Bank of Findley (1877),32 Ohio St. 194
, in a manner similar to the way the dissent in Trader indirectly relied on Zanesville and Fletcher. In Bank of Findley, at 200-201, this court stated: “In such case, the rule is, says Lord Mansfield, in Rex v. Robinson, 2 Burr. 803: ‘That where a statute creates a new offense by prohibiting and making unlawful anything which was lawful before, and appoints a specific remedy against such new offense (not antecedently unlawful), by a particular sanction and a particular method of proceeding, that particular method of proceeding must be pursued and none other.’” (Emphasis sic.) However, in Bank of Findley, this court specifically noted that the remedy provided by the statute at issue in that case provided more than ample recovery for an aggrieved party and that the remedies were “full, adequate and complete.” (Emphasis added.)Id.,
32 Ohio St. at 200.
Conversely, the remedies set forth in R.C. 4113.52 are neither ample nor complete.
{¶ 61} Finally, the right of this court to recognize a common-law cause of
action and remedy for the wrongful discharge of an at-will employee cannot be
seriously questioned. “After all, who presides over the common law but the
courts?” Gallimore v. Children’s Hosp. Med. Ctr. (1993), 67 Ohio St.3d 244, 253
,617 N.E.2d 1052, 1059
. The employment-at-will doctrine was judicially created,
38
January Term, 1997
and it may be judicially abolished. Clearly, it is the responsibility of the Ohio
judiciary to determine whether sufficiently clear public policy reasons exist to
support a common-law exception to the doctrine of employment at will (see
Painter, supra,
70 Ohio St.3d at 384
,639 N.E.2d at 56
) and to set the parameters
of those exceptions. Today, we recognize such an exception on the basis of Greeley
in circumstances where an at-will employee fully complies with the dictates of R.C.
4113.52 and is discharged or disciplined in violation of the statute. In so doing, we
specifically find that the common-law remedies available under Greeley do not
conflict with the limited statutory remedies available to a qualifying whistleblower
under R.C. 4113.52. In addition, we also recognize a separate exception to the
employment-at-will doctrine where an employee is discharged or disciplined for
reporting health and safety concerns to OSHA, and find this exception to be
applicable regardless whether the employee had complied with the dictates of R.C.
4113.52 in reporting such matters to OSHA.
{¶ 62} Accordingly, we hold that an at-will employee who is discharged or
disciplined for filing a complaint with OSHA concerning matters of health and
safety in the workplace is entitled to maintain a common-law tort action against the
employer for wrongful discharge/discipline in violation of public policy pursuant
to Greeley, 49 Ohio St.3d 228
,551 N.E.2d 981
, and its progeny. Thus, appellant
is entitled to maintain a Greeley claim against appellees whether or not he complied
with the dictates of R.C. 4113.52 in reporting his employer to OSHA. We also hold
that R.C. 4113.52 does not preempt a common-law cause of action against an
employer who discharges or disciplines an employee in violation of that statute.
We further hold that an at-will employee who is discharged or disciplined in
violation of the public policy embodied in R.C. 4113.52 may maintain a common-
law cause of action against the employer pursuant to Greeley and its progeny so
long as that employee had fully complied with the statute and was subsequently
discharged or disciplined. The remedies available pursuant to R.C. 4113.52 for
39
SUPREME COURT OF OHIO
violations of the statute and the remedies available for the tort of wrongful
discharge are cumulative. Therefore, an at-will employee who is discharged or
disciplined in violation of R.C. 4113.52 may maintain a statutory cause of action
for the violation, a common-law cause of action in tort, or both, but is not entitled
to double recovery. Our holdings today necessitate that we overrule Phung, supra,
23 Ohio St.3d 100
, 23 OBR 260,491 N.E.2d 1114
, which held that there exists no exception to the doctrine of employment at will for employees who are discharged or disciplined for whistleblowing.Id.
at paragraphs one and two of the syllabus.
While we believe that the enactment of R.C. 4113.52 overruled Phung, we now do
so specifically in order to avoid any confusion. Phung was decided before R.C.
4113.52 became the law, and before our pronouncements in Greeley and its
progeny.
{¶ 63} For the foregoing reasons, appellant’s second proposition of law is
well taken. We reverse that portion of the court of appeals’ judgment which
affirmed the grant of summary judgment against appellant on the claim of wrongful
discharge in violation of public policy.
III
Emotional Distress
{¶ 64} In his fourth proposition of law, appellant contends that the court of
appeals erred in affirming the grant of summary judgment in favor of appellees on
appellant’s claims for negligent and intentional infliction of serious emotional
distress. We disagree.
{¶ 65} With respect to appellant’s claim for negligent infliction of serious
emotional distress, we can perceive of no basis for such a claim on the facts of this
case. As we noted in Heiner v. Moretuzzo (1995), 73 Ohio St.3d 80, 85-87
,652 N.E.2d 664, 668-670
, recovery for negligent infliction of severe emotional distress
has typically been limited to instances where the plaintiff has either witnessed or
experienced a dangerous accident and/or was subjected to an actual physical peril.
40
January Term, 1997
As to appellant’s claim for intentional infliction of emotional distress, we agree
with the trial court and the court of appeals that even after viewing the evidence in
a light most favorable to appellant, the record does not support a claim for
intentional infliction of emotional distress under the standards set forth in Yeager
v. Local Union 20 (1983), 6 Ohio St.3d 369, 374-375
, 6 OBR 421, 426,453 N.E.2d 666, 671-672
.
{¶ 66} Accordingly, we reject appellant’s fourth proposition of law and
affirm the judgment of the court of appeals upholding the grant of summary
judgment in favor of appellees on appellant’s claims for negligent and intentional
infliction of serious emotional distress.
IV
Conclusion
{¶ 67} For all of the foregoing reasons, we affirm the judgment of the court
of appeals in part, reverse it in part, and remand this cause to the trial court for
further proceedings consistent with our opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
RESNICK and F.E. SWEENEY, JJ., concur.
PFEIFER, J., concurs in syllabus and judgment only.
MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent in part and
concur in part.
__________________
PFEIFER, J., concurring in syllabus and judgment only.
{¶ 68} I concur in the syllabus and judgment of the majority. I am pleased
to see that a cause of action for whistleblowers has finally found its most fitting
forum—the common law. See Contreras v. Ferro Alloy Corp. (1995), 73 Ohio St.3d 244, 251-253
,652 N.E.2d 940, 946-947
(Pfeifer, J., dissenting.). The
41
SUPREME COURT OF OHIO
Whistleblower Statute, R.C. 4413.52, was enacted only after this court failed to
appropriately extend common-law protection in Phung v. Waste Mgt, Inc. (1986),
23 Ohio St.3d 100
, 23 OBR 260,491 N.E.2d 114
, a case which demonstrated that
such protection was truly needed. The Whistleblower Statute was not a response
to judicial action, but to judicial inaction. It was not an attempt to curb a common-
law right, but to create a right where the common law had failed
{¶ 69} At the same time we formally recognize a common-law cause of
action for whistleblowers, it is important to recognize the cause of action’s legal
corollary. The entry of this cause of action into the common law must allow for
the development of a wide range of reasonable defenses that will permit an
employer to tell the whole story of a termination.
__________________
COOK, J., dissenting in part and concurring in part.
{¶ 70} I concur only in Part III of the majority opinion. I respectfully
dissent from the majority decision to expand the R.C. 4113.52 remedies beyond
those established by the General Assembly because the majority fails to persuade
that its result is legitimately grounded in Ohio public policy. I also dissent because
the plaintiff failed to withstand the summary judgment challenge of the employer.
I
THE REMEDY PROVIDED IN R.C. 4113.52 IS EXCLUSIVE
{¶ 71} This decision by the majority is a troubling instance of this court
elevating itself above the General Assembly as architect of Ohio’s public policy.
Rather than interpreting the Whistleblower Statute, the majority sets its own policy
for the state based on the view of four justices that the statutory relief, as crafted by
the branch of government charged with that decision, is not “ample [or] complete.”
The majority, because it disagrees with the legislative decisions to limit remedies
provided in the state and federal statutes, acts beyond this court’s constitutional
authority to remedy the perceived shortcomings.
42
January Term, 1997
{¶ 72} Pursuant to Greeley v. Miami Valley Maintenance Contrs., Inc.
(1990), 49 Ohio St.3d 228
,551 N.E.2d 981
, the majority purports to base an
exception to at-will employment on “public policy” extracted from state and federal
statutory provisions. Recognition of a Greeley claim in this case, however, does
not act to further the public-policy determination of Congress or the General
Assembly. Instead, it circumvents the specific remedies provided in those statutes.
{¶ 73} As part of its rationale, the majority opinion takes license with the
historical doctrine of employment at will. It postulates that at-will employment is
a creature of common law, and therefore may be judicially abolished. Until today,
however, the Ohio judiciary has never recognized a common-law protection against
discharge for whistleblowing activity. Moreover, the Ohio Constitution gives the
legislature primary responsibility to protect the welfare of employees. Phung v.
Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 103
, 23 OBR 260, 262,491 N.E.2d 1114, 1117
.
{¶ 74} As for the reliance on the Occupational Safety and Health Act of
1970 (“OSHA”), Section 651 et seq., Title 29, U.S. Code, it is questionable, even
as a general proposition, to look to a federal statute as a source of Ohio public
policy. The majority justifies its creation of a Greeley claim based on OSHA by
referring to the “clarity” element contained in the model from Professor Perritt’s
law review article, and employed in the lead opinion in Painter v. Graley (1994),
70 Ohio St.3d 377, 384
,639 N.E.2d 51, 57
. Without meaningful analysis of the relevant federal statute, the majority announces that OSHA creates a clear statement of public policy favoring “workplace safety” and Greeley thereby permits a cause of action for retaliatory discharge grounded in common law. Such reasoning is dubious in light of the fact that although Section 660(c), Title 29, U.S. Code provides whistleblowers a remedy for retaliatory discharge, that section does not provide whistleblowers with a private cause of action. Taylor v. Brighton Corp. (C.A.6, 1980),616 F.2d 256
. Instead, all claims are processed through the
43
SUPREME COURT OF OHIO
Secretary of Labor, who possesses broad authority to determine the investigatory
and prosecutorial action to be taken. Id. at 261-262
.6
{¶ 75} This court’s creation of a Greeley claim based on the federal policy
to promote “workplace safety” permits an employee to do in Ohio courts that which
OSHA forbids in federal court -- to bring a private cause of action. The majority
adopts that portion of the federal public policy supporting its determination, while
ignoring the policy-driven balancing components of that legislation. As a
consequence, we are left with an exception to the employment-at-will doctrine
purportedly grounded on federal public policy that is more transparent than it is
clear.
{¶ 76} The majority additionally states that “Ohio’s public policy is clearly
in keeping with the laudable objectives of the federal Occupational Safety and
Health Act.” While this may be true, the branch of government properly charged
with making public-policy decisions -- the General Assembly -- has expressed
Ohio’s policy by enacting R.C. 4113.52. Like Section 660(c), Title 29, U.S. Code,
Ohio’s whistleblower statute recognizes an exception to at-will employment and
sets the bounds of available relief.
{¶ 77} In Contreras v. Ferro (1995), 73 Ohio St.3d 244
,652 N.E.2d 940
, syllabus, we recognized that relief under the Whistleblower Statute requires strict compliance with the reporting dictates of R.C. 4113.52. Like the reporting 6. The majority points to this court’s opinion in Mers v. Dispatch Printing Co. (1985),19 Ohio St.3d 100
, 19 OBR 261,483 N.E.2d 150
, as support for its adoption of the “public policy” embodied in Section 660(c), Title 29, U.S. Code, to create a cause of action cognizable in Ohio courts. The Mers citation of Section 660(c), however, was included to point out that at-will employment is not without exception.Id. at 103
, 19 OBR at 263-264,483 N.E.2d at 153, fn.2
. Mers was not a Greeley-
type case authorizing relief based on the “public policy” embodied in a statute or comparable
authority. Instead, Mers defined what inquiries were appropriate in determining whether an
employment contract (implied or express) exists and recognized a cause of action for at-will
employees based on promissory estoppel. Section 660(c) was cited only as a statutory remedy
available despite at-will employment. Mers did not suggest that a plaintiff could recover pursuant
to Section 660(c) outside the limits of the federal remedy.
44
January Term, 1997
requirements, the limited remedies contained in R.C. 4113.52(E) reflect the General
Assembly’s public policy determination. Accordingly, the majority contravenes
the General Assembly’s expression of public-policy by authorizing whistleblower
relief beyond the statutory limits.
{¶ 78} The majority cites Collins v. Rizkana (1995), 73 Ohio St.3d 65, 70
,652 N.E.2d 653, 658
, to support its determination that the “public policy” embedded in a statute may be extracted to defeat that statute’s coverage provisions.7 In Collins, this court recognized the right of an employee to maintain a Greeley claim based on policy embodied in R.C. Chapter 4112, despite the fact that Collins’s employer did not meet the statutory definition of “employer.”Id. at 74
,
652 N.E.2d at 661.
{¶ 79} R.C. 4112.99, which provides the penalty for a violation under R.C.
Chapter 4112, subjects a wrongdoer “to a civil action for damages, injunctive relief,
or any other appropriate relief.” Accordingly, the Collins court did not endorse an
enlargement of statutory remedies beyond those provided in R.C. Chapter 4112.
Unlike R.C. 4112.99, 4113.52(E) specifically limits the remedies available to a
discharged whistleblower to reinstatement of employment, back pay, reinstatement
of seniority and fringe benefits, litigation costs, attorney fees, and interest on back
pay.8
7. The majority also cites Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131
,543 N.E.2d 1212
, as being supportive of this proposition. Helmick, however, held that intentional torts long recognized at common law, although keyed to sexual misconduct, were not preempted by the limited remedies available at that time pursuant to R.C. 4112.05(G).Id. at 134-135
,543 N.E.2d at 1216
. In the instant case, we are not dealing with a common-law tort independent of the statutory
violation. To the contrary, the Greeley claim is derivative of the statutory violation.
8. The majority misreads R.C. 4113.52(E) when it states that “the statute permits the court to fashion
an award based upon whatever the court deems to be appropriate.” The pertinent portion of division
(E) reads : “The court, in rendering a judgment for the employee in an action brought pursuant to
division (D) of this section, may order, as it determines appropriate, reinstatement of the employee
to the same position he held at the time of the disciplinary or retaliatory action and at the same site
of employment or to a comparable position at that site, the payment of back wages, full reinstatement
of fringe benefits and seniority rights, or any combination of these remedies.” (Emphasis added.)
45
SUPREME COURT OF OHIO
{¶ 80} Moreover, the majority opinion in Collins carefully noted:
“We do not mean to suggest that where a statute’s coverage provisions form
an essential part of its public policy, we may extract a policy from the statute and
use it to nullify the statute’s own coverage provisions.” Id. at 74, 652 N.E.2d at
661.
{¶ 81} Disregarding the Collins court’s caveat, the decision of the majority
allows a Greeley claim based on the public policy of R.C. 4113.52, which defeats
that statute’s coverage provisions. This result is achieved by recognizing a public
policy to promote “workplace safety” favoring employees while ignoring the policy
considerations reflected in R.C. 4113.52(E), which balances the statute by limiting
the available relief. Despite the majority’s assertions to the contrary, the expansion
of whistleblower remedies does not come as a natural evolution of common law --
it is in derogation of the common-law employment relationship. Under Greeley
and its progeny, such an expansion can be accomplished only when acting pursuant
to “sufficiently clear public policy,” such as a statute or other comparable authority.
Greeley, 49 Ohio St.3d at 233
,551 N.E.2d at 986
; Painter,70 Ohio St.3d at 384
,639 N.E.2d at 56
.
{¶ 82} Here the majority extracts an overly broad public policy from both
R.C. 4113.52 and Section 660(c), Title 29, U.S. Code, while ignoring the specific
remedies provided by those statutes. Such action is beyond this court’s
constitutional authority. See, e.g., State v. Smorgala (1990), 50 Ohio St.3d 222, 223
,553 N.E.2d 672, 674
; State ex rel. Bishop v. Mt. Orab Village School Dist. Bd.
Upon reading all the pertinent statutory language, it is clear that a court may order, as appropriate,
any combination of the remedies listed in that division. Division (E) does not authorize a court to
award extrastatutory remedies that it deems appropriate.
46
January Term, 1997
of Edn. (1942), 139 Ohio St. 427, 438
,22 O.O. 494, 498
,40 N.E.2d 913, 919
; Primes v. Tyler (1975),43 Ohio St.2d 195
,72 O.O.2d 112
,331 N.E.2d 723
.9
The Trader Dissent
{¶ 83} The majority impugns the dissent in Trader v. People Working
Cooperatively, Inc. (1996), 74 Ohio St.3d 1286, 1286-1289
,660 N.E.2d 737
, 737-
739. I joined that dissent and I continue to support its analysis as judicious.
{¶ 84} In criticizing the Trader dissent, the majority traces the controlling
language from Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police
(1991), 59 Ohio St.3d 167, 169
,572 N.E.2d 87, 89-90
, which forms the cornerstone of Justice Wright’s analysis, back to its origin. In Franklin Cty. Law Enforcement Assn., the majority quoted paragraph two of the syllabus in Zanesville v. Fannan (1895),53 Ohio St. 605
,42 N.E. 703
, which states:
“Where a statute which creates a new right, prescribes the remedy for its
violation, the remedy is exclusive ***.”
{¶ 85} As stated by the majority, the Zanesville court cited Dunn v.
Kanmacher (1875), 26 Ohio St. 497
, in addition to other authorities, in support of paragraph two of its syllabus. The majority declares that the “true” principle of law, as stated in Dunn, provides that “where a statute gives a new right, and also prescribes the remedy for its violation, the remedy so prescribed must be taken as exclusive, unless it appears from the statute that the legislature intended otherwise.” (Emphasis added in Zanesville.) However, in applying the Dunn standard to this case, the majority reverses the presumption of exclusivity. 9. It is noteworthy that the lead opinion inPainter, supra,
echoed the following language fromSmorgala, supra,
50 Ohio St.3d at 223
,553 N.E.2d at 674
, in denying the Greeley claim under consideration: “Where the General Assembly has spoken, and in so speaking violated no constitutional provision, the courts of this state must not contravene the legislature's expression of public policy. ‘Judicial policy preferences may not be used to override valid legislative enactments, for the General Assembly should be the final arbiter of public policy.’" Painter,70 Ohio St.3d at 385
,639 N.E.2d at 57
.
47
SUPREME COURT OF OHIO
{¶ 86} The majority concludes that the General Assembly did not intend the
R.C. 4113.52 remedy to be exclusive because it was not so labeled. Unlike the
Trader dissent, the majority cites no statutory language or legislative history
supporting its conclusion. It merely cites the absence of language making the
limited remedies available in R.C. 4113.52 “sole and exclusive.”
{¶ 87} The majority relies heavily on the fact that R.C. 124.341 labels its
remedy as “sole and exclusive,” while R.C. 4113.52 does not. R.C. 124.341
provides public employees relief similar to that contained in R.C. 4113.52, and
expressly labels itself as a public employee’s “sole and exclusive” remedy. R.C.
124.341(D). Little, however, can be inferred from the absence of similar language
in R.C. 4113.52.
{¶ 88} For instance, it is possible that the General Assembly included the
“sole and exclusive” language in R.C. 124.341 because that section comprehends
parties subject to collective bargaining agreements, which generally provide
grievance procedures as the exclusive remedy. Compare R.C. 4117.10(A) with
R.C. 4113.53 (R.C. 4117.10[A] requires the General Assembly to specify when any
other provision prevails over that section’s general policy favoring resolution
pursuant to an agreed-upon grievance procedure, while R.C. 4113.53 expressly
permits private employees subject to a collective bargaining agreement to process
their grievance through the channels provided in the agreement.). In any event, it
is unsound to suggest that the “sole and exclusive” language was purposely
excluded from R.C. 4113.52 to permit nonexistent alternative remedies. After all,
the legislature enacted R.C. 4113.52 in response to this court’s decision in Phung, supra,
23 Ohio St.3d 100
, 23 OBR 260,491 N.E.2d 1114
, paragraph one of the
syllabus, declaring that common law offered whistleblowers no protection against
discharge from at-will employment.
{¶ 89} Having traced the exclusivity presumption, the Trader dissent noted
that whistleblower claims were not actionable at common law and that the
48
January Term, 1997
enactment of R.C. 4113.52 was a legislative response to this court’s holding in
Phung. Trader, 74 Ohio St.3d at 1286-1287
,660 N.E.2d at 737
. The dissent went on to present the legislative history of R.C. 4113.52, demonstrating that the General Assembly considered and rejected provisions for actual and punitive damages,id. at 1287
,660 N.E.2d at 738
,10 and adopted Senate amendments, enacted in R.C. 4113.52(D), requiring that whistleblower remedies be limited to those identified in the statute.Id. at 1287
,660 N.E.2d at 738
.11
{¶ 90} By contrast, neither the appellant nor the majority in his stead has
demonstrated legislative intent sufficient to overcome the presumption that R.C.
4113.52(E) is intended to provide a whistleblower with an exclusive remedy for
violations of that section. Therefore, the remedy provided in R.C. 4113.52 must be
taken as exclusive.
II
SUMMARY JUDGMENT
{¶ 91} I also dissent on the basis that the trial and appellate courts correctly
held that Kulch failed to withstand the summary judgment challenge of Structural
Fibers. I am compelled to address these issues separately, given that the majority
eviscerates summary judgment in order to reach its ultimate holding that expands
Greeley and its progeny.
10. Despite the majority’s attempt to undermine the sound reasoning in the Trader dissent by
pointing out that footnote 2 of Rheinecker v. Forest Laboratories (S.D.Ohio 1993), 826 F.Supp. 256, 258
, was inaccurate and corrected in Rheinecker v. Forest Laboratories, Inc. (S.D.Ohio 1994),855 F.Supp. 913
, the majority concedes, as it must, that the General Assembly considered and rejected a broader range of remedies than those set forth in R.C. 4113.52(E). In fact, a review of H.B. No. 406 reveals that the bill, as introduced, would have authorized an award of actual damages, while the enacted version of that statute limits the available remedies to those listed in Division (E) of R.C. 4113.52. 11. As noted in footnote 2 toTrader, supra,
74 Ohio St.3d at 1287
,660 N.E.2d at 738
, “The House
accepted all Senate amendments to the bill. (142 Ohio House Journal 1581 [March 10, 1988].) See
R.C. 4113.52(E). This amendment distinguishes the whistleblower statute from statutes such as
R.C. 4112.99, which authorizes a court to award specified remedies ‘or any other appropriate
relief.’”
49
SUPREME COURT OF OHIO
{¶ 92} It is of critical importance to note at the outset that without the R.C.
4113.52(A)(2) claim, this case is indistinguishable from Contreras, 73 Ohio St.3d 244
,652 N.E.2d 940
. Knowing that the plausibility of Kulch’s Greeley claim is entirely dependent upon the (A)(2) claim, the majority permits its survival at the expense of the continued vitality of summary judgment practice. For the reasons expressed in the dissent to Dresher v. Burt (1996),75 Ohio St.3d 280, 299-302
,662 N.E.2d 264, 278-280
, I would find that Structural Fibers satisfied its burden under
summary judgment when it repeatedly asserted that it was entitled to judgment as
to Kulch’s entire R.C. 4113.52 whistleblower claim. As acknowledged by Kulch
in his brief to this court, Structural Fibers specifically pointed to both the R.C.
4113.52 (A)(1)(a) and the (A)(2) claims. In Kulch’s brief, he admits “it is clear that
a separate claim under section (A)(2) was made by plaintiff.* * * Even defendant
pointed out that fact in its own summary judgment motion.” (Emphasis added.)
{¶ 93} Nonetheless, the majority, relying and expanding upon the plurality
opinion in Dresher, holds that Structural Fibers is not entitled to summary judgment
on Kulch’s (A)(2) claim because Structural Fibers never discharged its burden to
produce evidence to disprove it. This holding is specious in light of the fact that
throughout the proceedings in this case, Kulch has argued his case solely as an R.C.
4113.52(A)(1)(a) claim. For example, prior to filing its motion for summary
judgment, Structural Fibers argued under Civ.R. 12(B)(6) that Count One of the
complaint failed to support Kulch’s claim that his employer retaliated against him
“‘for making any report authorized by division (A)(1) or (2).’” (Emphasis added.)
In response, Kulch addressed only (A)(1)(a), citing that subsection at least nine
times and never once citing (A)(2).
{¶ 94} Moreover, oral argument before this court focused entirely on
whether the reporting requirements of (A)(1)(a) had been followed and when the
twenty-four-hour waiting period of (A)(1)(a) commenced, without a single
reference to (A)(2) or its reporting requirements.
50
January Term, 1997
{¶ 95} Although Kulch now admits that he was on notice that Structural
Fibers moved for summary judgment on his entire R.C. 4113.52 claim, Kulch never
argued he could report directly to OSHA under (A)(2). If Kulch wanted to maintain
his claim that (A)(2) permitted him to report directly to OSHA, he should have so
argued in response to the motions to dismiss or for summary judgment rather than
on appeal.
{¶ 96} The majority’s application of Dresher to hold that Structural Fibers
should be denied summary judgment because it failed to disprove a claim that
Kulch never identified further debilitates the purposes of summary judgment.
Summary judgment allows the early assessment of the merits of claims, pre-trial
dismissal of meritless claims, and defining and narrowing issues for trial. However,
none of these goals can be accomplished if the plaintiff need not identify its specific
theory of recovery.
{¶ 97} As a result of the holdings in both Dresher and this case, to be
entitled to summary judgment, defendant-movants must not only disprove
plaintiff’s case, they must also define plaintiff’s case. In contrast, plaintiff-
nonmovants have no duty to delineate their theories or to disclose the evidence to
support them prior to trial. Instead, under the majority holding, it is the trial court
that must identify all of plaintiff’s possible claims and theories when considering
summary judgment. If the lesson in Dresher was to object to interrogatories, the
lesson here is to plead vaguely. Id.,
75 Ohio St.3d at 302
,662 N.E.2d at 280
(Cook,
J., dissenting). The majority errs in not requiring the same clarity and specificity
of plaintiffs in their pleading and motion practice that it seeks to require of
defendants.
{¶ 98} Kulch’s failure to demonstrate that his claims under the
Whistleblower statute survived because he could directly report to OSHA under
(A)(2) should prove fatal not only to the (A)(2) claim, but also to his Greeley claim.
Contreras, supra.
51
SUPREME COURT OF OHIO
III
CONCLUSION
{¶ 99} In accordance with the foregoing, I would affirm the judgment of the
court of appeals which affirmed summary judgment in favor of this employer on
the Greeley claim.
MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
opinion.
__________________
52