Blackburn v. Am. Dental Ctrs.Blackburn v. Am. Dental Ctrs.
Law Offices of James P. Connors, and James P. Connors, for appellants.
Baker & Hostetler LLP, Elizabeth A. McNellie, and William R. Post, for appellees.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶1} Barbara Blackburn and Heather Esposito, plaintiffs-appellants, appeal the judgment of the Franklin County Court of Common Pleas, in which the court granted the motion for summary judgment filed by American Dental Centers, Dr. Sam Jaffe & Associates, Inc. (“ADC“), and Sam S. Jaffe, D.D.S. (“Jaffe“), defendants-appellees.
{¶2} ADC has dental offices in several states. Jaffee is the sole shareholder in ADC. Esposito began working for appellees in November 1999 as a dental hygienist.
{¶3} Allen‘s employment was terminated sometime during September 2002 to November 2002. Appellees terminated Esposito‘s employment on November 7, 2002. Blackburn wrote a letter to appellees on April 28, 2003, discussing Allen‘s behaviors, among other things. On May 5, 2003, Blackburn appeared, with her identity disguised, on a local television news program discussing the unsafe conditions at ADC, including Allen‘s dangerous and unethical actions. A co-worker, Janise Boggs, wrote a letter to appellees on May 6, 2003, indicating that she and Blackburn would not return to work until they felt safe working there. Blackburn never returned to work. Blackburn claims she was terminated from her employment, while appellees claim Blackburn abandoned her position.
{¶4} On January 4, 2008, appellants filed a complaint against appellees. Both appellants alleged wrongful termination in violation of public policy, violations of the Ohio whistle-blower statute (
{¶5} On November 20, 2009, appellees filed a motion for summary judgment. The trial court granted appellees’ summary judgment motion with respect to Blackburn‘s and Esposito‘s claims based upon
- I. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT TO ADC AND JAFFE ON THE PUBLIC POLICY CLAIMS FOR WRONGFUL TERMINATION AND STATUTORY VIOLATIONS OF
R.C. 4113.52 . - II. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT ON THE APPELLANTS’ REMAINING CLAIMS.
{¶6} Appellants argue in both of their assignments of error that the trial court erred in granting summary judgment to appellees. Pursuant to
{¶7} In their first assignment of error, appellants argue that the trial court erred when it granted summary judgment to appellees on the public policy claims for wrongful termination and statutory violations of the whistle-blower statute,
(A)(1)(a) If an employee becomes aware in the course of the employee‘s employment of a violation of any state or federal statute or any ordinance or regulation of a political subdivision that the employee‘s employer has authority to correct and if 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 the employee‘s supervisor or other responsible officer of the employee‘s 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 in which the violation occurred, with a peace officer, with the inspector general if the violation is within the inspector general‘s 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 the employer 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. * * *
(3) If an employee becomes aware in the course of the employee‘s 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 the employee‘s employer and if 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 the employee‘s supervisor or other responsible officer of the employee‘s 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.
In Ohio, absent an employment contract, an employee is an employee-at-will and may be terminated at any time for any lawful reason or for no reason at all. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 102, fn. 1, citing Henkel v. Educational Research Council of Am. (1976), 45 Ohio St.2d 249, 255. However, an at-will employee may not be discharged or disciplined for reasons violative of a statute or public policy. Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, paragraph two of the syllabus.
{¶8} In the context of a motion for summary judgment, the presentments required in a whistle-blower case are no different from those in any other retaliatory discharge suit. See Chandler v. Empire Chem., Inc. (1994), 99 Ohio App.3d 396, 400. The plaintiff must first make a prima facie case by showing that (1) he or she engaged in activity which would bring him or her under the protection of the statute; (2) was subject to an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action. Wright v. Petroleum Helicopter, Inc. (Sept. 18, 1997), 8th Dist. No. 71168, citing Cooper v. N. Olmsted (C.A.6, 1986), 795 F.2d 1265, 1272.
{¶9} In the present case, Blackburn contends that
{¶10} We disagree with Blackburn‘s contention. This issue has already been addressed by this court as well as other appellate courts. In Lesko v. Riverside Methodist Hosp., 10th Dist. No. 04AP-1130, 2005-Ohio-3142, this court specifically rejected O‘Brien
Appellant presents us with an interesting interpretational question. Does [
R.C. 4113.52 ] mean that the individual must reasonably believe the violation is either (a) a criminal offense that is likely to cause either (i) an imminent risk of physical harm to persons or (ii) a hazard to public health or safety, OR (b) is a felony (“the first interpretation“)? Or does it mean that the violation is either (a) a criminal offense that is likely to cause an imminent risk of physical harm to persons, OR (b) a hazard to public health or safety, OR (c) a felony (“the second interpretation“)? Put another way, does the employee have to believe that a violation that is a hazard to public health or safety must also be criminal?The first interpretation of the statute is correct. First, it is grammatically proper. The use of “either ... or” generally indicates that a binary relationship exists between the clauses that follow “either” (i.e., that there are two alternatives, not three). Additionally, the word “is” is used only before the words “a criminal offense” and “a felony,” it is not used before the words “a hazard.” This implies that the drafters of the statute did not mean that “a hazard to public health or safety” was to be an independent, third “option.”
Next, the first interpretation of the statute is the one that makes logical sense. On the second interpretation, the standard for a whistleblower exposing acts that present a nonparticularized hazard to public health or safety is lower than the standard for whistleblowers exposing acts that will cause imminent harm to persons, which seems contrary to reason. One would expect the lower hurdle in cases of imminent harm.
Third, this reading of the statute comports with language used by the Ohio Supreme Court in Fox v. Bowling Green, 76 Ohio St.3d 534, 668 N.E.2d 898 (1996). The Fox court, interpreting sections (A)(3) and (B) of § 4113.52, said that “if an employee reports to his employer that a fellow employee is violating a state statute and that the violation is a criminal offense and is likely to cause a hazard to public health, each informational component of that report-the violation, the criminality, and the risk to public safety-is ‘information so reported’ under § 4113.52(B).” Id. at 901 (emphasis added). If the second
interpretation of § 4113.52(A)(1)(a) were correct, the Fox court would have used “or” in place of the italicized “and.”
Thus, in Lesko, we found that a plaintiff must demonstrate that he or she had a reasonable belief in a criminal offense, or any claim under
{¶11} Appellants next argue that the trial court erred when it only analyzed
{¶12} Appellants next argue that the trial court erred when it found that Blackburn failed to file a sufficient “written report” under
{¶13} With regard to the April 28, 2003 letter, in order to comply with
{¶14} Here, the trial court found that Blackburn had failed to allege a criminal offense or felony in her April 28, 2003 letter. Our review of the letter reveals several alleged actions regarding Allen. The allegations were that Allen was “scary“; was “unprofessional“; “did unethical things“; “numbed a woman and hit her optical nerve“; “took a patient to prep a bridge without an exam or any consultation“; “had all this white goop coming from his tearducts [sic]” and then was “very shaky and got flustered and dropped the drill on the patient,” after which he yelled the “F” word and ran out of the room; “was falling off his chair during exams“; “when he drilled he did not use water“; “did root canals in 15 minutes“; “hurt many people“; and “had strippers come to our back door on occasions.” However, appellants do not specify how any of these actions constituted a criminal offense or felony, and, without more information, we fail to find that any of these allegations were criminal offenses. These actions all relate to ethical lapses and professional malpractice, and are not criminal acts as described. As explained above, an employee seeking protection under the whistle-blower statute must reasonably believe a criminal offense occurred. If Blackburn believed Allen committed criminal offenses or felonies with these actions, she was required to provide sufficient detail to identify and describe the violations of law in her written report. She failed to do so and, therefore, failed to comply with the mandates of
{¶15} Blackburn also alleged in the April 28, 2003 letter that Allen “harrassed me, he grabbed me, [and] he got in my car and Esposito‘s without us asking him.” Of these allegations, that Allen “grabbed me,” is the only one that we can see arguably alleges a criminal offense. Allen‘s act of grabbing Blackburn could conceivably constitute criminal offenses, such as, menacing, assault, kidnapping, or abduction, if certain circumstances accompanied his conduct. However, Blackburn neither supports this allegation with sufficient detail so that it describes any violation of law, nor cites any relevant Ohio Revised Code sections or names any specific offenses. Lacking sufficient detail, we cannot find the trial court erred when it found these allegations, as well as the others discussed above, failed to allege violations that were either criminal offenses that were likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety or were felonies. Therefore, the trial court properly granted summary judgment to appellees on Blackburn‘s whistle-blower claim under
{¶16} Appellants next argue that summary judgment was improper on Blackburn‘s and Esposito‘s claims for wrongful termination in violation of public policy. As explained already, unless otherwise agreed, either party to an oral employment-at-will agreement may terminate the employment relationship for any reason which is not contrary to law. Mers at paragraph one of the syllabus. An exception to the employment-at-will doctrine exists where the employee‘s discharge violates public policy. Painter v. Graley, 70 Ohio St.3d 377, 1994-Ohio-334.
{¶17} To establish a prima facie claim of wrongful discharge in violation of public policy, the employee must demonstrate the following four elements: (1) a clear public policy existed and was manifested in a state or federal constitution, statute, or
{¶18} To state a claim of wrongful discharge in violation of public policy, a plaintiff must allege facts demonstrating that the employer‘s act of discharging him contravened a “clear public policy.” Greeley at 233. “An at-will employee who is discharged or disciplined in violation of the public policy embodied in
{¶19} Here, as we found above, Blackburn did not comply with the requirements set forth in
{¶20} The trial court found that appellants failed to allege any independent source of public policy in paragraph 46 of their complaint. In paragraph 46, appellants alleged that their discharge was motivated by conduct related to the public policy prohibiting retaliation for investigating and reporting unlawful activity. The court found that the public policy embodied in
{¶21} Appellants contend herein that the trial court erred when it held that their public policy wrongful termination claims were limited to paragraph 46 of their complaint. Appellants claim they also identified the public policies of workplace safety and patient safety in paragraph 45 of the complaint, and the public policies of drug and substance abuse in the workplace in paragraphs 14 and 15. In rejecting appellants’ argument that the court should have considered its other public policy claims outside of paragraph 46,
{¶22} Although we generally agree with the trial court‘s above proposition, clearly appellants raised public-policy claims in other paragraphs of their complaint besides paragraph 46. In paragraph 45, which is included under the same count as paragraph 46, entitled “Wrongful Discharge against Public Policy,” appellants specifically alleged that their “discharge * * * jeopardizes the public policy prohibiting retaliation for reporting unlawful activity and maintaining workplace safety and patient safety.” Thus, appellants did, in fact, specifically allege other violations of public policy in their complaint beyond those embodied by
{¶23} Appellants also contend that paragraphs 14 and 15 alleged public policy claims for drug and substance abuse in the workplace. Paragraphs 14 and 15 allege the following:
14. Allen frequently came into work with hangovers, bloodshot eyes, unkempt clothing, unsure on his feet and in his physical movements, smelling of alcohol, and, on one occasion on September 18, 2002, appeared with a white substance oozing from his eyes, and closed his eyes and nodded off while examining patients, and even dropped a drill while with a patient. The plaintiffs advised Lynn Haney, the office manager, about this and insisted that patients be sent home and the office be closed. Haney refused and said that “he (Allen)‘s fine, he just had a couple of Vicodin.”
15. Plaintiffs were subjected to Allen‘s unwelcome sexual advances and comments, knowledge of his criminal record, and his odd, erratic, and bizarre behavior, creating an unsafe workplace, and causing a hostile working environment. Plaintiffs did not encourage, invite or solicit the above described harassment, submission to which was demanded in exchange for continued employment.
{¶25} The allegations in paragraphs 14 do not make any reference to public policy wrongful discharge. However, this paragraph clearly asserts that Allen came to work
{¶26} In concluding that appellants sufficiently alleged a claim for public policy wrongful termination relating to drug and substance abuse in the workplace, we are mindful of the Supreme Court of Ohio‘s opinion in Sabo v. Schott, 70 Ohio St.3d 527, 1994-Ohio-249, in which the court reversed the decision of the appellate court that had found the plaintiff‘s allegations in his complaint were insufficient to allege a public policy wrongful discharge claim because he did not plead in his complaint that the appellees had acted contrary to a statute by discharging him. In a three-sentence opinion, the Supreme Court of Ohio reversed the court of appeals, finding that the plaintiff‘s allegation in his complaint that he was fired as a result of having testified truthfully was sufficient because, if proven to be true, it would constitute conduct on the part of the defendants that violates the public policy of Ohio. The Supreme Court‘s liberal view of what is sufficient to allege a public policy wrongful discharge claim supports our conclusion that appellants’ allegations in their complaint in the present case sufficiently raised a claim for public policy wrongful discharge based upon drug and substance abuse in the workplace.
{¶27} Having found that appellants did not sufficiently raise claims for public policy wrongful discharge based upon drug and substance abuse in the workplace, patient safety, and workplace safety, the trial court never addressed whether appellees were entitled to summary judgment on these claims. We decline to address these issues for the first time on appeal. Therefore, we remand the matter for the trial court to address whether appellees were entitled to summary judgment based upon these public policy wrongful discharge claims. For these reasons, appellants’ first assignment of error is sustained in part and overruled in part.
{¶28} Appellants argue in their second assignment of error that the trial court erred when it granted summary judgment on appellants’ remaining claims of negligent or intentional infliction of emotional distress, slander, and tortious interference with business relationship, and Blackburn‘s separate claims for malicious prosecution and abuse of process. With regard to appellants’ claims for negligent infliction of emotional distress, we agree with the trial court that Ohio courts, including this one, have refused to recognize a separate tort for negligent infliction of emotional distress in the employment context. See, e.g., Tschantz v. Ferguson (1994), 97 Ohio App.3d 693, 724; Meek v. Solze, 6th Dist. No. OT-05-055, 2006-Ohio-6633, ¶17; Peitsmeyer v. Jackson Twp. Bd. of Trustees, 10th Dist. No. 02AP-1174, 2003-Ohio-4302, fn. 3. Accordingly, appellants’ negligent infliction of emotional distress claims do not merit further consideration.
{¶29} With regard to intentional infliction of emotional distress, to assert a claim for intentional infliction of emotional distress, a plaintiff is required to show that: (1) defendant intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress; (2) defendant‘s conduct was
{¶30} In the present case, the trial court found that appellants cited no evidence that they had suffered serious mental anguish. In their appellate briefs, appellants once again failed to illuminate any evidence of psychic injury or serious mental anguish, and did not even mention these elements. Like the trial court, we find no allegations or proof in any of the depositions or affidavits that appellees’ actions caused psychic injury or that appellants sustained serious mental anguish. Although Blackburn averred she did not feel
{¶31} With regard to appellants’ claims for slander, a defamation cause of action, such as slander, consists of five elements: (1) a false and defamatory statement; (2) about plaintiff; (3) published without privilege to a third party; (4) with fault of at least negligence on the part of the defendant; and (5) that was either defamatory per se or caused special harm to the plaintiff. Gosden v. Louis (1996), 116 Ohio App.3d 195, 206.
{¶32} Here, appellants’ lone argument on appeal is, “Jaffe‘s further statements to a personnel agency regarding the plaintiffs are equally egregious.” With regard to Esposito, the trial court granted summary judgment to appellees on her slander claim based upon Esposito‘s failure to present any evidence to support this claim, as well as appellees’ citation to Esposito‘s deposition testimony in which she failed to identify a statement that was harmful to her reputation. In that deposition testimony, Esposito stated
{¶33} As for Blackburn‘s slander claim, the trial court relied upon Blackburn‘s deposition testimony to find there remained no genuine issue of material fact. In that testimony, Blackburn indicates that appellees telephoned all of the places she had tried to get a job. Specifically, Blackburn said that she called a dentist‘s office to apply for a position, and a person at that office told Blackburn that someone from ADC had just called and said “odd things” about her. However, she admitted that the person from the dentist‘s office did not specify what the person from ADC had said about her. We agree with the trial court that this non-specific statement is insufficient to create a genuine issue of material fact as to whether appellees made a slanderous statement regarding Blackburn. The rest of Blackburn‘s deposition testimony fails to reveal Blackburn had any knowledge of slanderous statements made by appellees to prospective employers. Additionally, appellants fail to direct us to any place in the record that supports their argument on appeal that appellees made any statements to a personnel agency. For these reasons, we find the trial court did not err when it granted summary judgment on appellants’ slander claims.
{¶34} Appellants also argue that the trial court erred when it granted summary judgment on their claims for tortious interference with a business relationship. The tort of interference with a business relationship occurs when a person, without a privilege to do so, induces or otherwise purposely causes a third person not to enter into or continue a
{¶35} We first note that the trial court denied summary judgment regarding Blackburn‘s claims for tortious interference with a business relationship. With regard to Esposito‘s claim, we agree with the trial court that Esposito‘s depositions are fatal to her claim. Esposito testified that she had no evidence that any of her prospective employers were contacted by appellees after she left ADC. She also specifically admitted she had no evidence to substantiate a claim that ADC has in any way interfered with her ability to get a job. Lacking such evidence, summary judgment in favor of appellees on Esposito‘s claim for tortious interference with a business relationship was appropriate.
{¶36} Appellants also argue that the trial court erred when it granted summary judgment to appellees on Blackburn‘s claims for malicious prosecution and abuse of process. The basis for both of these claims centers on a forged dental assistant radiographer license bearing Blackburn‘s name that appellees forwarded to the Ohio State Dental Board (“board“). In Ohio, the elements of the tort of abuse of process are: (1) a legal proceeding has been set in motion in proper form and with probable cause; (2) the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) direct damage has resulted from the wrongful use of process. Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294, 298, 1994-Ohio-503.
{¶37} The elements of a claim for malicious prosecution in Ohio are: (1) malice in instituting or continuing the prosecution; (2) lack of probable cause; and (3) termination of the prosecution in favor of the accused. Criss v. Springfield Twp. (1990), 56 Ohio St.3d 82, 84. For purposes of malicious prosecution, malice means an improper purpose or any purpose other than the legitimate interest of bringing an offender to justice. Id. at 85.
{¶38} We find Blackburn failed to sustain her burden on the first element of both of these claims. Appellees did not set in motion any legal proceeding or institute any prosecution. Jaffe averred in his deposition that he merely forwarded Blackburn‘s radiological license to the board, and he took no further actions with regard to the subsequent criminal or administrative actions against Blackburn. In his deposition he said he did not recall ever contacting the board about Blackburn or being involved in the board‘s investigation of her. He did not recall ever communicating with the board about Blackburn. He testified that he did not offer any opinion to the board as to whether her radiological license was valid, and he did not recommend to the board that she be criminally prosecuted.
{¶39} Blackburn also testified that she believed it was ADC that brought these criminal charges against her; however, a criminal action is actually brought by the prosecutor‘s office. Generally, “a citizen who serves only as an informer of criminal activity is not regarded as having instituted the criminal proceedings.” Robbins v. Fry (1991), 72 Ohio App.3d 360, 362. “The test of liability in such an action is: Was defendant actively instrumental in putting the law in force? To sustain the action, it must affirmatively appear as a part of the case of the party demanding damages that the party sought to be
{¶40} The Supreme Court of Ohio set out the law governing malicious prosecution as follows:
” ‘A private person who gives to a public official information of another‘s supposed criminal misconduct, of which the official is ignorant, obviously causes the institution of such subsequent proceedings as the official may begin on his own initiative, but giving such information or even making an accusation of criminal misconduct does not constitute a procurement of the proceedings initiated by the officer if it is left entirely to his discretion to initiate the proceedings or not. Where a private person gives to a prosecuting officer information which he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable under the rule stated in this section even though the information proves to be false and his belief therein was one which a reasonable man would not entertain. The exercise of the officer‘s discretion makes the initiation of the prosecution his own and protects from liability the person whose information or accusation has led the officer to initiate the proceedings.’ ”
Archer v. Cachat (1956), 165 Ohio St. 286, 287-88, quoting Restatement (Third) of Torts, page 386. “The protected status of informer can be lost, however, when * * * the informer demonstrates a desire, direction, request or pressure for the initiation of criminal proceedings.” Robbins at 362.
{¶41} The only argument in appellants’ brief on appeal regarding these claims is that “Jaffe had no right to pursue criminal charges against Blackburn when he knew from the moment that she was hired that she did not have an Ohio license, that he ordered her to perform services knowing that she did not have the license is outrageous and an abuse of process.” This statement does not further advance Blackburn‘s claims. As explained
{¶42} Accordingly, appellants’ first assignment of error is sustained in part and overruled in part, and appellants’ second assignment of error is overruled. The judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed in part, and this matter is remanded to that court for proceedings consistent with this decision.
Judgment affirmed in part and reversed in part; cause remanded.
SADLER and DORRIAN, JJ., concur.