Lee v. Cardington, ____ Ohio St.3d ____, 2014-Ohio-5458
(Whistleblower)
Lee worked as a “crew chief” for the Village from 2000 to 2009. His duties included supervising the operation of the Village’s wastewater treatment plant (“WWTP”). During his employment, Lee discovered that Cardington Yutaka Technologies, Inc. (“CYT”), an automotive-parts manufacturer, was discharging hazardous chemicals (glycol) into the Village’s water supply. Lee reported these issues to the EPA, who ruled out the WWTP as the source of the problem, and determined that CYT was responsible. Lee was ultimately terminated by the Village, and brought whistleblower claims under R.C. 4113.52. Lee alleged that the Village retaliated against him for reporting the problems with the WWTP, his opposition to some of the proposals and projects advanced by the Village, and his support for the work of the EPA.
Despite the fact that the court of appeals reversed summary judgment, finding genuine issues of material fact, the Ohio Supreme Court reversed. Lee had failed to comply with R.C. 4113.52’s strict reporting requirements. Specifically, he did not make any written report of criminal conduct by his employer. Lee’s report about “equipment failures” did not qualify as a report that sufficiently identifies and describes crimes involving the Village. “Although Lee may have identified ways to “prevent” the WWTP from committing a permit violation under R.C. 6111.04(C), he knew that the WWTP had not yet committed such a violation. In his deposition, Lee admitted that the WWTP had never lost its permit during his employment, and he repeatedly told the village council that the WWTP continued to meet its permit obligations.”
Pixley v. Pro-Pak Industries, Inc., ____ Ohio St.3d ____, 2014-Ohio-5460
(Employer Intentional Tort)
Pixley, a plant maintenance worker, suffered a severe leg injury when a co-worker, who was operating a “transfer car,” accidentally ran the car into Pixley, pinning his leg against a conveyor line. The accident did not trigger the shut-off mechanism in the car’s safety bumper, and the operator had to manually stop the car after he realized it had struck Pixley. After the accident, both Pro-Pak and OSHA tested the car, and determined that the safety mechanism was functioning properly. Pixley brought suit, alleging that Pro-Pak had deliberately intended to injure him. He relied on two expert witnesses, who opined that the proximity sensor for the safety bumper had been deliberately bypassed or disabled. “They based their opinions on their review of the video clips, which showed the safety bumper dragging on the surface of the aisle and partially collapsing without stopping the transfer car.”
While the trial court had granted summary judgment to Pixley, the Sixth District court of appeals reversed, finding that a genuine issue of material fact existed regarding whether Pro-Pak had deliberately bypassed the safety bumper.
The Ohio Supreme Court reversed. The failure of an equipment safety guard is not sufficient by itself to raise the rebuttable presumption that the employer intended to injure another, “rather, the deliberate removal referred to in R.C. 2745.01(C) may be described as a careful and thorough decision to get rid of or eliminate an equipment safety guard.” Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317, 981 N.E.2d 795, at ¶ 29 (internal quotations omitted). There was no evidence that Pro-Pak deliberately removed the safety bumper or otherwise caused it to fail.
Hulsmeyer v. Hospice of Southwest Ohio, Inc., ____ Ohio St.3d ____, 2014-Ohio-5511
(Whistleblower – Nursing Facility)
Syllabus: “An employee or other person used to perform work or services who reports or indicates an intention to report suspected abuse or neglect of a long-term-care-facility or residential-care-facility resident is not required to report or indicate an intent to report the suspected abuse or neglect to the Ohio director of health in order to state a claim for retaliatory discharge under R.C. 3721.24.”
In April 2010, Hospice hired Hulsmeyer as a registered-nurse case manager. Eight months later, Hulsmeyer was promoted to team manager, where she oversaw the care of Hospice patients and monitored the work of other Hospice nurses and aides. At an October 19, 2011 patient-care meeting, a Hospice nurse indicated that she had noticed bruising on a resident (Pat Cinquina) and that she suspected abuse or neglect by Brookdale’s staff. Rachel Brown, an aide, divulged that she had used her cell phone to take pictures of bruising on Cinquina’s body. Brown forwarded the pictures to Hulsmeyer’s phone. A Hospice nurse and staff doctor at the meeting advised Hulsmeyer that she was obligated to notify Brookdale and Cinquina’s family of the suspected abuse or neglect. Hulsmeyer immediately called Brookdale and reported the suspected abuse or neglect to Cindy Spaunagle, Brookdale’s director of nursing, who indicated that she would examine Cinquina and then contact Cinquina’s daughter after the examination. Hulsmeyer then informed Isha Abdullah, the chief clinical officer of Hospice, of the suspected abuse or neglect. And after she left Abdullah’s office, Hulsmeyer informed Cinquina’s daughter of the suspected abuse or neglect. Contrary to the assertion in Hulsmeyer’s complaint, Abdullah claimed in a deposition that she did not learn of the suspected abuse or neglect until she received a call from a Brookdale employee. Abdullah claimed that Hulsmeyer violated Hospice’s company policy by not first reporting the suspected abuse or neglect to Hospice management. On November 30, 2011, Hospice terminated Hulsmeyer because she: (1) permitted photos of Cinquina to be taken without receiving authorization from a person with power of attorney, (2) notified Brookdale and Cinquina’s daughter of the suspected abuse or neglect without first notifying Hospice, in violation of Hospice’s policy, and (3) improperly shared the photos at a patient-care conference to discuss Cinquina’s care, which was attended by staff from both Hospice and Brookdale and Cinquina’s family, before informing Hospice of the suspected abuse or neglect.
Hulsmeyer filed suit, alleging a statutory retaliatory-discharge claim under R.C. 3721.24, and a common-law wrongful-discharge claim. The trial court granted a motion to dismiss Hulsmeyer’s claims, finding that claims under R.C. 3721.24 require an employee to report abuse or neglect to the Ohio director of health to receive protection. The court of appeals reversed, and the Supreme Court affirmed. Hospice argued that R.C. 3721.24 is ambiguous, and must be read in pari material with R.C. 3721.22 – which requires reporting to the Ohio director of health. However, applying statutory construction guidelines, the Court found no ambiguity in R.C. 3721.24’s absence of a specific reporting requirement.
AUTHOR’S NOTE: Justice French dissented, but wrote that she finds that “Hulsmeyer’s complaint stated a cognizable common-law claim for wrongful discharge in violation of public policy,” based upon the General Assembly’s clear public policy in favor of “special protection of nursing home-residents through its passage of the Ohio Nursing Home Patients’ Bill of Rights, R.C. 3721.10 et seq.”
Ohio and 6th Circuit Employment Case Updates 