2019 Ohio 141
Ohio Ct. App.2019Background
- McGlothen was Fairborn’s Chief Building Official responsible for enforcing the Ohio Building Code and approving plans.
- A proposed tenant (Tangible Solutions) planned to renovate a building owned by IRG; contractor CR1 performed work and disputed code requirements with McGlothen.
- McGlothen issued an adjudication order (Jan. 6, 2017) stopping work until compliant plans were submitted; he then emailed CR1 criticizing efforts to bypass code enforcement (Jan. 7, 2017).
- After McGlothen returned from vacation, he met with city officials and was terminated; the city cited customer-service complaints and the Jan. 7 email as the last straw.
- McGlothen sued under the Whistleblower Act and for wrongful discharge in violation of public policy based on Ohio Building Code §§106.1 and 307.1; the trial court granted summary judgment for the City, and McGlothen appealed as to the public-policy claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ohio Building Code §§106.1 and 307.1 express a "clear public policy" protecting employees from retaliatory discharge for enforcing the Code | McGlothen: those Code sections (and the Code’s underlying goal of safety/fire protection) manifest a public policy forbidding retaliation against officials who enforce the Code | Fairborn: the cited sections are procedural/definitional (plan submittal and occupancy classification) and do not expressly prohibit retaliatory discharge or create a public-policy exception to at-will employment | The court held the sections do not express a clear public policy forbidding retaliatory discharge; summary judgment for the City affirmed |
Key Cases Cited
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (sets Ohio summary-judgment standard)
- Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168 (discusses public-policy wrongful-discharge elements and limits on sua sponte identification of policy)
- Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153 (articulates four-element test for wrongful discharge in violation of public policy)
- Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134 (recognizes Whistleblower Statute and OSHA as sources of clear public policy protecting certain employees)
- Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228 (discusses wrongful-discharge exception to at-will employment)
- Shovelin v. Central New Mexico Elec. Co-op, Inc., 115 N.M. 293 (850 P.2d 996) (explains that not every statute expressing public policy suffices to support retaliatory-discharge claim)