Pytlinski v. Brocar Products, Inc.

[This decision has been published in Ohio Official Reports at 

94 Ohio St.3d 77

.]




     PYTLINSKI, APPELLANT, v. BROCAR PRODUCTS, INC. ET AL., APPELLEES.
               [Cite as Pytlinski v. Brocar Prod., Inc., 

2002-Ohio-66

.]
Employment relations—Ohio public policy favoring workplace safety is an
         independent basis upon which a cause of action for wrongful discharge in
         violation of public policy may be prosecuted—Common-law cause of
         action against employer who discharges employee in violation of public
         policy favoring workplace safety is subject to four-year limitations period
         in R.C. 2305.09(D).
     (No. 00-1756—Submitted October 17, 2001, at the Greene County Session—
                                 Decided January 16, 2002.)
       APPEAL from the Court of Appeals for Hamilton County, No. C-000032.
                                    __________________
                                 SYLLABUS OF THE COURT
1. Ohio public policy favoring workplace safety is an independent basis upon
         which a cause of action for wrongful discharge in violation of public policy
         may be prosecuted.
2.    A common-law cause of action against an employer who discharges an
         employee in violation of public policy favoring workplace safety is subject
         to the four-year limitations period set forth in R.C. 2305.09(D).
                                    __________________
         DOUGLAS, J.
         {¶ 1} In 1997, Larry J. Pytlinski, appellant, was hired by appellee John
Helmsderfer, the president of appellee Brocar Products, Inc. (“Brocar”). 1 While


1. The facts as stated herein are taken from appellant’s complaint and are considered to be true for
the purposes of this appeal. See Perez v. Cleveland (1993), 

66 Ohio St.3d 397, 399

, 

613 N.E.2d 199, 200

.
                               SUPREME COURT OF OHIO




employed with Brocar, Pytlinski complained several times to Helmsderfer
regarding working conditions he believed jeopardized employee health and safety.
Subsequent to making these complaints, Pytlinski was demoted. On February 5,
1998, Pytlinski delivered a memorandum to appellees identifying health violations
occurring at Brocar that Pytlinski believed to be in violation of Occupational Safety
and Health Administration (“OSHA”) regulations. Pytlinski’s employment was
terminated the next day.
          {¶ 2} In February 1999, approximately one year after his termination from
Brocar, Pytlinski filed a complaint against appellees alleging that he was terminated
in violation of the public policy of Ohio, which prohibits the termination of
employees for lodging complaints pertaining to violations of the law, including
OSHA regulations.
          {¶ 3} Appellees moved to dismiss the complaint, pursuant to Civ.R.
12(B)(6), for failure to state a claim upon which relief could be granted. Appellees
argued that Pytlinski’s complaint was time-barred by the one-hundred-eighty-day
limitations period set forth in R.C. 4113.52, the Ohio Whistleblower Act. The trial
court granted appellees’ motion, and Pytlinski appealed to the Court of Appeals for
Hamilton County.
          {¶ 4} The court of appeals affirmed the judgment of the trial court. The
court of appeals found that a complaint for damages for wrongful discharge from
employment, where the discharge was retaliatory and violative of Ohio public
policy, is limited to the one-hundred-eighty-day limitations period set forth in R.C.
4113.52. Pytlinski appealed to this court.
          {¶ 5} This case is now before us upon the allowance of a discretionary
appeal.
          {¶ 6} Pytlinski presents a single issue for our consideration. We are called
upon to determine whether the court of appeals erred in applying the one-hundred-
eighty-day limitations period set forth in R.C. 4113.52 to Pytlinski’s common-law




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                               January Term, 2002




claim for wrongful discharge in violation of public policy. For the reasons that
follow, we reverse the judgment of the court of appeals.
       {¶ 7} In Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 

49 Ohio St.3d 228

, 

551 N.E.2d 981

, paragraph two of the syllabus, we created an exception
to the traditional common-law doctrine of employment-at-will where a discharge is
in violation of a statute and thereby contravenes public policy. The Greeley holding
was later expanded to recognize a cause of action in tort when the wrongful
discharge violated the “Constitutions of Ohio and the United States, administrative
rules and regulations, and the common law.” Painter v. Graley (1994), 

70 Ohio St.3d 377

, 

639 N.E.2d 51

, paragraph three of the syllabus.
       {¶ 8} Pytlinski claims that he was discharged in violation of Ohio public
policy favoring workplace safety because the discharge was predicated upon his
complaints regarding workplace safety.       Pytlinski asserts that he has a valid
common-law cause of action based upon Greeley and Painter and that his cause of
action is governed by the four-year limitations period set forth in R.C. 2305.09(D).
Appellees contend that Pytlinski is seeking protection as a whistleblower and
appellees urge this court to apply the holding of Contreras v. Ferro Corp. (1995),

73 Ohio St.3d 244

, 

652 N.E.2d 940

, syllabus, which states, “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.” Appellees argue that even
though Pytlinski did not specifically allege a violation of R.C. 4113.52, he should
nonetheless be held to the statute’s requirements, including the one-hundred-
eighty-day limitations period. We disagree.
       {¶ 9} Subsequent to our decision in Contreras, we held that an at-will
employee who is discharged for filing a complaint with OSHA alleging concerns
with workplace safety is entitled to maintain a common-law tort action based upon
Greeley. Kulch v. Structural Fibers, Inc. (1997), 

78 Ohio St.3d 134

, 

677 N.E.2d 308

, paragraph one of the syllabus. In Kulch, the plaintiff was discharged after he




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filed complaints with OSHA regarding health problems that he and other employees
were experiencing in the workplace. After being discharged, the plaintiff brought
suit against the employer, alleging both a whistleblower claim, pursuant to R.C.
4113.52, and a claim for wrongful discharge in violation of public policy.
        {¶ 10} In Kulch, we recognized the abundance of Ohio statutory and
constitutional provisions that support workplace safety and form the basis for
Ohio’s public policy, which is “clearly in keeping with the laudable objectives of
the federal Occupational Safety and Health Act.”2 

Id.,

78 Ohio St.3d at 152

, 

677 N.E.2d at 322

.        We concluded that retaliation against employees who file
complaints regarding workplace safety clearly contravenes the public policy of
Ohio. 

Id.,

78 Ohio St.3d at 152-153

, 

677 N.E.2d at 322

.
        {¶ 11} Specifically, we held:
        “[A]n 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.” (Emphasis added.) 

Id.,

78 Ohio St.3d at 162

, 

677 N.E.2d at 328-329

.
        {¶ 12} We disagree with any contention on appellees’ behalf that
Pytlinski’s claim fails because his complaints were not filed with OSHA. As


2. See, e.g., Sections 34 and 35, Article II, Ohio Constitution (providing for the welfare of
employees and providing for workers’ compensation benefits); 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 the Bureau 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. 4121.48
(occupational safety loan program to reduce employment hazards and promote health and safety of
employees). Kulch v. Structural Fibers, Inc., 

78 Ohio St.3d at 152-153

, 

677 N.E.2d at 322

.




                                               4
                                      January Term, 2002




discussed in Kulch, it is the retaliatory action of the employer that triggers an action
for violation of the public policy favoring workplace safety.3 Pytlinski’s complaint
clearly sets forth the allegation that appellees retaliated against him for lodging
complaints regarding workplace safety.
         {¶ 13} We find the holding in Kulch controlling in this case. Ohio public
policy favoring workplace safety is an independent basis upon which a cause of
action for wrongful discharge in violation of public policy may be prosecuted.
Therefore, Pytlinski is not bound by the statute of limitations set forth in R.C.
4113.52 because his cause of action is not based upon that statute, but is, instead,
based in common-law for violation of public policy.
         {¶ 14} Having determined that the one-hundred-eighty-day limitations
period set forth in R.C. 4113.52 does not apply to a common-law action for
wrongful discharge in violation of public policy, we must determine what
limitations period does apply. R.C. 2305.09(D) provides the general limitations
period for tort actions not specifically covered by other statutory sections. An
action for wrongful discharge in violation of public policy is not specifically
covered by any statutory section. Accordingly, we find that the limitations period
for common-law claims for wrongful discharge in violation of public policy is four
years as set forth in R.C. 2305.09(D). The record reflects that Pytlinski filed his
complaint against appellees well within four years from the date he was terminated.
Therefore, the court of appeals erred in affirming the trial court’s dismissal of
Pytlinski’s complaint for failure to file his claim timely.



3. In Kulch, 

78 Ohio St.3d at 150-151

, 

677 N.E.2d at 321

, we followed the suggestion of the court
in Painter, 

70 Ohio St.3d at 384

, 

639 N.E.2d at 57, fn. 8

, and applied the analysis of Villanova Law
Professor H. Perritt, who set forth the elements of a wrongful discharge claim in violation of public
policy. The elements of the tort do not include a requirement that there be a complaint to a specific
entity, only that the discharge by the employer be related to the public policy. H. Perritt, The Future
of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie? (1989), 58 U.Cin.L.Rev.
397, 398-399.




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                            SUPREME COURT OF OHIO




       {¶ 15} Based upon the foregoing, a common-law cause of action against an
employer who discharges an employee in violation of public policy favoring
workplace safety is subject to the four-year limitations period set forth in R.C.
2305.09(D). Therefore, the judgment of the court of appeals is reversed, and this
cause is remanded to the trial court for further proceedings consistent with this
decision.
                                                                Judgment reversed
                                                              and cause remanded.
       RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
       MOYER, C.J., and COOK, J., concur in judgment only.
       LUNDBERG STRATTON, J., dissents.
                              __________________
       COOK, J., concurring in judgment only.
       {¶ 16} Today’s majority correctly frames the sole issue this case presents
as “whether the court of appeals erred in applying the one-hundred-eighty-day
limitations period set forth in R.C. 4113.52 to Pytlinski’s common-law claim for
wrongful discharge in violation of public policy.” I agree with the majority’s
determination that R.C. 2305.09(D)’s four-year statute of limitations applies, but I
disagree with the majority’s analysis.
                                         I
       {¶ 17} In Kulch v. Structural Fibers, Inc. (1997), 

78 Ohio St.3d 134

, 

677 N.E.2d 308

, a majority of this court decided that “[a]n 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.” 

Id.,

 paragraph
three of the syllabus. I dissented on that point, in part because neither Kulch nor
the Kulch majority had “demonstrated legislative intent sufficient to overcome the
presumption that R.C. 4113.52(E) is intended to provide a whistleblower with an




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                                January Term, 2002




exclusive remedy for violations of that section.” (Emphasis added.) Kulch, 

78 Ohio St.3d at 169

, 

677 N.E.2d at 333

 (Cook, J., dissenting).
        {¶ 18} If the issue of whether a common-law whistleblower cause of action
exists were before this court for the first time today, I would decide this case in
accordance with my dissenting view in Kulch. But in deference to the doctrine of
stare decisis, I begin my analysis of today’s case recognizing the holding of Kulch
that a limited common-law whistleblower cause of action exists based on the public
policy evinced by R.C. 4113.52.
                                         II
        {¶ 19} Given the existence of such a cause of action, I find that Kulch
dictates the result reached by today’s majority. I take issue, however, with the
majority’s reasoning here that recasts Kulch to depart from the actual holding of
that case.
        {¶ 20} The majority characterizes the rationale in Kulch as follows:
        “ ‘[A]n 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.’ (Emphasis added.) [Kulch], 

78 Ohio St.3d at 162

, 

677 N.E.2d at 328-329

.”
        {¶ 21} Based on this language, and without mentioning that other portions
of the Kulch opinion state that the appellant had complied with R.C. 4113.52(A)(2)
by reporting his employer to OSHA, today’s majority concludes:
        “We find the holding in Kulch controlling in this case. Ohio public policy
favoring workplace safety is an independent basis upon which a cause of action for
wrongful discharge in violation of public policy may be prosecuted. Therefore,




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                              SUPREME COURT OF OHIO




Pytlinski is not bound by the statute of limitations set forth in R.C. 4113.52 because
his cause of action is not based upon that statute, but is, instead, based in common
law for violation of public policy.” (Emphasis added.)
        {¶ 22} Today’s majority thus asserts, as Pytlinski urges, that Kulch
recognizes a common-law cause of action based on a general public policy and not
based on satisfaction of requirements embodied in R.C. 4113.52. But this is not
what a majority of this court held in Kulch. Kulch was a plurality opinion, and that
portion of Kulch that the majority cites as supporting the proposition that the
elements of a Kulch common-law cause of action based on wrongful discharge in
violation of public policy “do not include a requirement that there be a complaint
to a specific entity, only that the discharge by the employer be related to the public
policy” garnered only three votes. See Kulch, 

78 Ohio St.3d at 163-164

, 

677 N.E.2d at 329-330

 (Pfeifer, J., concurring in syllabus and judgment only). Because
a majority of this court did not join the non-syllabus language on which today’s
majority relies to make its blanket assertion, this language is not the law.
        {¶ 23} Instead, the only parts of Kulch that garnered the support of four
members of this court were the five syllabus paragraphs and the judgment. I
therefore confine my decisionmaking to the law set forth by a majority of this court
and not to the dicta of three justices.
        {¶ 24} I find that Kulch’s third syllabus paragraph disposes of the issue
before us:
        “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.”
        {¶ 25} The conjunctive phrasing and tense of this syllabus language suggest
a progressive, two-pronged scheme: (1) the employee must have satisfied all




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                               January Term, 2002




applicable statutory requirements (“employee had fully complied with the statute”);
then (2) the employer had to discharge or discipline the employee (the employee
“was subsequently discharged or disciplined”). (Emphasis added.) 

Id.,

 paragraph
three of the syllabus. I reach this conclusion because the Kulch majority’s use of
the word “subsequently” signals that the common-law cause of action exists only
after adverse action followed full compliance.
       {¶ 26} R.C. 4113.52(A) and (C) set forth what the employee must do to
fully comply with the statutory requirements. Thus, contrary to the majority’s
assertion, the elements of a common-law cause of action based on R.C. 4113.52 do
include “a requirement that there be a complaint to a specific entity.” See R.C.
4113.52(A)(1) through (3) (mandating reporting to various entities ranging from an
employee’s supervisor to appropriate public officials or agencies based on the type
of violation). Before reporting information to an entity under R.C. 4113.52(A)(1)
or (2), the employee must make “a reasonable and good faith effort to determine
the accuracy” of the reported information. R.C. 4113.52(C).
       {¶ 27} R.C. 4113.52(B) in turn sets forth what constitutes disciplinary or
retaliatory action by the employer. This conduct constitutes the second and final
prong of the requirements of Kulch’s third syllabus paragraph.
       {¶ 28} R.C. 4113.52(D)’s requirement that the employee bring his or her
civil action “within one hundred eighty days after the date the disciplinary or
retaliatory action was taken” does not figure into the ordered progression set forth
in the Kulch syllabus. This is so because the Kulch requirements never reach R.C.
4113.52(D). The third syllabus paragraph of Kulch requires full compliance, then
adverse action. But satisfaction of section (D) becomes possible only after adverse
employment action.
       {¶ 29} Thus, pursuant to Kulch, Ohio recognizes a common-law cause of
action based on R.C. 4113.52. Because the R.C. 4113.52(D) one-hundred-and-




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                             SUPREME COURT OF OHIO




eighty-day statute of limitations is not an element of that cause of action, the R.C.
2305.09(D) four-year default statute of limitations applies.
       {¶ 30} I therefore join today’s majority only in its judgment that Pytlinski
is not time-barred from asserting such a cause of action. In so doing, I do not opine
on whether Pytlinski has asserted a valid claim (i.e., whether he has fully complied
with the applicable R.C. 4113.52[A] and [C] requirements and has suffered
disciplinary or retaliatory action under R.C. 4113.52[B]). The merits of the claim
are not before this court, only the grant of the Civ.R. 12(B)(6) motion to dismiss
predicated upon a statute-of-limitations issue.
       MOYER, C.J., concurs in the foregoing opinion.
                               __________________
       LUNDBERG STRATTON, J., dissenting.
       {¶ 31} I agree with Justice Cook’s concurrence in judgment only to the
extent that she would decide the issue of the existence of a common-law
whistleblower cause of action in accordance with her opinion concurring in part
and dissenting in part in Kulch v. Structural Fibers, Inc. (1997), 

78 Ohio St.3d 134, 164-171

, 

677 N.E.2d 308, 330-335

. Like Justice Cook, I will defer to the doctrine
of stare decisis and adhere to this court’s syllabus law in Kulch. However, because
I believe that the one-hundred-eighty-day limitation period set forth in R.C.
4113.52(D) applies, not a four-year statute of limitations, I respectfully dissent.
       {¶ 32} I believe that Kulch applies here because the substance of the
complaint alleges a claim for wrongful discharge in violation of the public policy
underlying the Whistleblower Act, R.C. 4113.52. Although the plaintiff and a
majority of this court characterize the cause of action as one based upon public
policy favoring workplace safety, the fact is that regardless of how it is phrased, the
essence of the claim is a Greeley cause of action based upon the public policy
embodied in R.C. 4113.52. See Greeley v. Miami Valley Maintenance Contrs., Inc.




                                          10
                                January Term, 2002




(1990), 

49 Ohio St.3d 228

, 

551 N.E.2d 981

. Therefore, I believe that the result is
dictated by Kulch.
       {¶ 33} Paragraph three of the syllabus in Kulch states that “[a]n 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.”
Although the issue in Kulch involved statutory reporting requirements, not the
limitations period, the court did not restrict the necessity of full compliance with
the reporting mandates of the statute.
       {¶ 34} Likewise, in Contreras v. Ferro Corp. (1995), 

73 Ohio St.3d 244

,

652 N.E.2d 940

, the court held that an employee must “strictly comply with the
dictates of R.C. 4113.52” to claim the whistleblower protections embodied in the
statute. 

Id.

 at syllabus. Therefore, the logical conclusion is that “strict” or “full”
compliance means compliance with the entire statute. This would include section
(D) of R.C. 4113.52, requiring an employee who is seeking whistleblower
protection to bring a civil action “within one hundred eighty days after the date the
disciplinary or retaliatory action was taken.” If the employee fails to file within
that period, the cause of action fails as a matter of law and he or she is not afforded
the protections of the statute. Consequently, in order to have a cause of action
asserting whistleblower protection, one must adhere to the filing requirement of the
statute as well as the reporting mandates.
       {¶ 35} Because I believe that the one-hundred-eighty-day limitations period
in R.C. 4113.52(D) should apply, I respectfully dissent.
                               __________________
       Mark J. Byrne, for appellant.
       Dinsmore & Shohl, L.L.P., and Jerry S. Sallee, for appellees.
                               __________________




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