LINDA HEIGEL v. THE METROHEALTH SYSTEM, ET AL.
No. 112900
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 18, 2024
[Cite as Heigel v. MetroHealth Sys., 2024-Ohio-1471.]
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-21-950160
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 18, 2024
Appearances:
Thorman Petrov Group Co., LPA, and Daniel P. Petrov, for appellant.
Zashin & Rich Co., L.P.A., David P. Frantz, and Jzinae N. Jackson, for appellees.
{¶ 1} Plaintiff-appellant, Linda Heigel, appeals the trial court‘s decision to grant summary judgment in favor of defendants-appellees The MetroHealth System and MetroHealth nurse Kathleen Rizer (collectively referred to as “MetroHealth“). For the reasons that follow, we affirm.
I. Background
{¶ 2} In March 2021, Heigel was hired by MetroHealth for the position of Director of Nursing of MetroHealth‘s Ambulatory Network. She was employed less than two months before being terminated from employment. Heigel‘s position included overseeing seven of MetroHealth‘s outpatient clinics including J. Glen (“Glenville“), Old Brooklyn, and Broadway. As a director of nursing, she was to ensure “the provision of high quality, culturally sensitive, nursing/patient care in accordance with evidence-based practice, current research, the American Nurses Association (ANA) Scope and Standards of Nursing Practice and the ANA Code of Ethics for the assigned clinical areas.” Heigel was also responsible for ensuring compliance with all “regulatory agencies and applicable standards of nursing practices.” It is undisputed that Heigel was an at will employee subject to a 90-day probationary period and was terminated during that period.
{¶ 3} The Joint Commission is an independent not-for-profit organization that health care organizations employ to develop standards, perform surveys, and assist with accreditation. Heigel had prior experience with the Joint Commission. This impressed those who interviewed her for her position, including Rizer. Shortly
{¶ 4} Heigel began identifying and reporting serious compliance issues to the appropriate people at MetroHealth and met with Rizer at the Glenville clinic to discuss these issues. According to Rizer, they immediately began to address Heigel‘s concerns. But employees began to complain about Heigel‘s behavior. During a Glenville site visit, the clinic‘s nurse manager expressed to Rizer that Heigel had engaged in “abrasive” and “aggressive” behavior with Glenville employees and her comments to the employees were “destructively critical.” The nurse manager stated that Heigel‘s behavior was “bullying-like.” She did not, however, dispute Heigel‘s concerns with compliance issues; the nurse manager‘s issues were solely with how Heigel had behaved on site.
{¶ 5} In late April, Heigel attended a walkthrough at the Old Brooklyn clinic, which had recently undergone renovation. During the walkthrough, which was supposed to be a celebratory occasion, Heigel noted to those in attendance what she found to be Joint Commission standard compliance issues relating to the sizes of the sink, patient privacy issues, and the location of a sharps container.
{¶ 6} After the walkthrough, the director of the Old Brooklyn clinic contacted Kimberly Svoboda, MetroHealth‘s Executive Director of Ambulatory Operations, and reported that Heigel made deflating comments during the walkthrough such as, “I don‘t know why they would do that” and “I wouldn‘t do it that way,” which made for a “difficult environment” among those in attendance. Svoboda contacted Heigel
{¶ 7} Another director of nursing who attended the event contacted Rizer and reported that Heigel did not show she was supportive to the other employees. According to this director, the other employees were feeling “a little defeated at that moment” because they had worked so hard on the renovation.
{¶ 8} Heigel asked who had complained about her at Old Brooklyn, but Svoboda and Rizer would not disclose names. Heigel then emailed a few of the clinic employees, apologizing if any of her comments were “perceived to be critical.” She also emailed Svoboda stating that she realized that staff at the clinic “could have perceived some of my comments * * * in a negative way.”
{¶ 9} Another situation arose in the beginning of May, during a staff meeting at the Broadway clinic. During the meeting, Heigel asked a medical assistant about message response times. The clinic‘s nurse manager interjected on the medical assistant‘s behalf and responded to Heigel‘s question. After the meeting, Heigel called the nurse manager into her office and accused her of “undermining what I was trying to do, which was just understand what the process was.”
{¶ 11} On May 7, 2021, Rizer met with her supervisor, Melissa Kline, Chief Nursing Officer and Senior Vice President of Patient Care Services. At the meeting, Rizer and Kline discussed the numerous complaints Rizer had received about Heigel in the short time Heigel had been working at MetroHealth. They discussed that Heigel had “significant issues” with her communication style and described her behavior as “bullying,” “destructively critical,” focusing “on the negative,” “abrasive,” “abrupt,” and “rude.” Following this meeting, the concerns with Heigel were advanced to the MetroHealth‘s Director of Human Resources who directed Rizer and Kline to provide written summaries of the issues with Heigel, which they did.
{¶ 12} On May 12, 2021, the director presented Heigel with a termination letter. Rizer was also in attendance. The letter provided, in part:
Ms. Heigel‘s overall communication with staff does not meet the expectations for a respectful, collaborative work environment. Despite coaching, Ms. Heigel has failed to meet the expectations set forth by MetroHealth‘s STAR-IQ Values and Code of Conduct within her first
40 days of employment. As a result, Ms. Heigel‘s employment is terminated effective immediately.
{¶ 13} The parties signed the termination memorandum and Heigel wrote on the memorandum: “I believe this termination is a result of my communication regarding significant regulatory issues and concerns regarding [patient] safety. I was vocal about regulatory compliance, and I feel this is the result.”
{¶ 14} Heigel subsequently filed suit, alleging wrongful termination in violation of public policy and intimidation in violation of
{¶ 15} Heigel filed the instant appeal.
II. Assigned Errors
I. The Trial Court erred as a matter of law when it determined no genuine issue of material fact existed and granted Appellees’ Motion for Summary Judgment dismissing Heigel‘s claim for wrongful termination in violation of Ohio public policy and witness intimidation, when she was terminated on the heels of reporting multiple health and safety violations in Appellees’ community health clinics.
II. The Trial Court erred as a matter of law when it determined that there is no clearly articulated Ohio public policy that requires Appellees in the management and operation of their community health clinics to maintain a clean and safe environment minimizing the risk of infection and contamination for its patients, who are residents of Ohio.
{¶ 16} Before we review this case on its merits, we initially address the problems in appellant‘s brief on appeal.
III. Law and Analysis
A. Standard of Review
{¶ 17} Appellate review of an award of summary judgment is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is appropriate under
B. At will Employment and Wrongful Discharge
{¶ 19} There are four elements that a plaintiff must establish to succeed on a claim of wrongful discharge in violation of public policy:
(1) a clear public policy exists and is manifested in a state or federal constitution, in statute or administrative regulation, or in the common law (the clarity element), (2) 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), and (4) the employer lacked an overriding legitimate business justification for the dismissal (the overriding-justification element).
(Internal citations omitted). Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938, ¶ 9.
{¶ 20} The clarity and jeopardy elements involve questions of law. They encompass the determination of whether there is a public policy covering the conduct alleged in a case and whether that public policy is put in jeopardy by that conduct. Rowe v. Hoist & Crane Serv. Group, 8th Dist. Cuyahoga No. 110921, 2022-Ohio-3130, ¶ 23. The causation and overriding-justification elements involve
i. Clarity Element
{¶ 21} To demonstrate the clarity element a plaintiff must show that he or she was disciplined or terminated “in contravention of a clear public policy articulated in the Ohio or United States Constitution, federal or state statutes, administrative rules and regulations, or common law.” Dohme, 130 Ohio St.3d 168, 2011-Ohio-4609, at ¶ 25. It is the plaintiff‘s obligation to specify the sources of law that support the public policy upon which the plaintiff relies. See id. at ¶ 18.
{¶ 22} Heigel cites several state and federal statutes, the Ohio Administrative Code, and the Joint Commissions Standards for Ambulatory Care to support the clarity element. She also claims to rely on “related statutes, regulations, and standards for health care organizations, and Ohio common law” alleging MetroHealth engaged in the conduct and “subjected Plaintiff to unfair scrutiny and discipline, unlawfully administered employment policies and standards, scapegoated her, threatened her [,] and terminated her employment.”
1. Joint Commission Standards1
{¶ 24} Heigel claims that “[c]ountless state and federal statutes and regulations embody the public policy of maintaining and protecting patient safety.” This argument does not support Heigel‘s claim that the Joint Commission‘s standards constitute a source of Ohio public policy; it is Heigel‘s burden to identify the specific sources of public policy that apply to the facts of the case. See Dohme, 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825, at ¶ 19, 24; Rowe, 8th Dist. Cuyahoga No. 110921, 2022-Ohio-3130, at ¶ 30-31. Because the Joint Commission standards are not legislatively created or otherwise found in state or federal law, we find that they cannot be the basis of Heigel‘s claim that she has met the clarity element. Other states agree. Rowe at id. See also Brintley v. St. Mary Mercy Hosp., 904 F. Supp.2d 699, 741 (E.D. Mich. 2012) (applying Michigan law and dismissing wrongful discharge in violation of public policy claim noting that there is “[n]o legal or statutory right [set forth] in the Joint Commission‘s standards, nor do the
2. Ohio Revised Code
{¶ 25} Heigel also relies upon the following Ohio Revised Code sections:
{¶ 26} Not only is the burden on the plaintiff to “state with specificity the law or policy that would have been violated by the refusal to perform an employment action,” Sorensen v. Wise Mgt. Servs., 8th Dist. Cuyahoga No. 81627, 2003-Ohio-767, ¶ 32, but the plaintiff must also identify a public policy concern that applies to the facts of the case. Rowe at id.
{¶ 27} Heigel relies on
{¶ 28} Likewise,
{¶ 29} Heigel cites
3. R.C. 4101.11 and 4101.12
{¶ 30} Heigel argues that she “clearly and unambiguously complained about dangerous conditions on the Appellees’ business premises” and alleges she was fired for making the complaints. To support her claim, Heigel refers to her deposition testimony that there was “a bucket of dirty instruments” in the intake room, “numerous expired lab vials,” “medications stored with cleaning supplies,” a “piece of cardboard that had patient labels stuck all around it,” “cultures sitting on the desk next to an open can of soda with a straw sticking out of it,” “numerous expired medications,” a clinic waiting room that had “dead plants” and “bugs flying all around,” and a clinic lacked a proper utility room for soiled uniforms. Heigel further claims she “identified [ ] Joint Commission and patient privacy related issues” at the Old Brooklyn clinic, including the sizes of sinks and the placement of curtains in relation to sharps containers.
- MetroHealth engaged in unsafe, hazardous conduct that violated company policies, standards applicable to health care organizations, and state and federal laws and regulations related to public health, safety, and patient privacy.
- MetroHealth‘s noncompliance with the applicable laws and regulations related to health and safety was negatively impacting patient care and posed a substantial risk to patient and employee health and safety.
- Heigel provided written complaints and documentary evidence of the unsafe conduct.
- MetroHealth was noncompliant with laws and regulations related to the diversion of medication. Ms. Heigel reported that a MetroHealth physician was improperly diverting Covid-19 vaccines.
- MetroHealth sites were noncompliant with numerous Joint Commission [s]tandards. Her reports related, but were not limited to, the presence of expired supplies, soiled utilities improperly near patients, dirty lab coats improperly kept in soiled utility rooms, boxes were overflowing in soiled utilities rooms, clean and dirty supplies commingled, and cardboard shipping boxes not properly disposed of as required.
- MetroHealth employees were incorrectly performing procedures before the issuance of a physician‘s order.
- MetroHealth employees were not taking reasonable steps to safeguard the protected health information of patients.
- The reported conduct posed an unreasonable risk to the health and safety of MetroHealth employees and patients and violated multiple accreditation standards.
{¶ 32} This court has explained, “The duty owed to frequenters under
{¶ 33} In Rowe, the plaintiff alleged that “untrained workers operat[ing] machinery subjected him and his coworkers to an unsafe work environment” and his employer failed to provide adequate personal protective equipment. Id. at ¶ 3, 5. This court upheld the trial court‘s finding that the plaintiff did not meet his burden to “cite to a specific source of public policy that is violated by [the employer‘s] conduct.” Id. at ¶ 31. This court found that the plaintiff “fail[ed] to allege any safety issues covered by the public policy expressed in
{¶ 34} Heigel relies on Blackburn v. Am. Dental Ctrs., 2014-Ohio-5329, 22 N.E.3d 1149 (10th Dist.), where the court held that
{¶ 35} In this case, the trial court expressly declined to follow Blackburn, instead following then-established Eighth District precedent. The trial court‘s order granting summary judgment, however, was journalized shortly before this court issued Rowe.
{¶ 36} In Rowe, this court agreed with the reasoning in Blackburn, finding that considering
{¶ 37} Under her cause of action for wrongful discharge in violation of public policy, Heigel specified that she complained to MetroHealth regarding its conduct and non-compliance, which Heigel believed “was a hazard to the health and safety of employees, patients and the public,” was “negatively impacting patient care[,] and posed a substantial risk to patient employee health and safety.” Thus, Heigel claims that it was MetroHealth‘s conduct and non-compliance that violated public policy,
{¶ 38} According to MetroHealth, the hospital system hired Heigel because she had Joint Commission experience and because it was in a survey window at the time of her hiring. Heigel was hired to identify and resolve issues like the ones she identified at the clinics. There is no evidence that MetroHealth failed to take Heigel‘s findings seriously; Rizer testified at deposition that she met Heigel on-site to resolve immediate concerns and the clinic‘s manager continued to work on the identified issues after their meeting. Contrary to Heigel‘s assertions on appeal, she did not allege in her complaint or other pleadings that MetroHealth‘s premises were in an unsafe condition, or dangerous due to concealed defects.
{¶ 39} Considering the above, Heigel‘s pleadings fail to allege safety issues covered by the public policy expressed in
4. Administrative Code
{¶ 41} Again, Dohme requires a plaintiff to identify a specific statement of law to support a valid claim and to articulate, by citation, a specific public policy that the employer violated when the plaintiff was discharged. Id. at ¶ 19, 21. Heigel has failed to do so. She has not identified the statement of law that provides the public policy relevant to her claim, nor how MetroHealth violated any law or policy upon her discharge. We are reminded that
the mere fact that a subject matter is covered by an administrative regulation and may serve as a basis for a public policy claim does not mean that each and every such regulation will be found to set forth a clear public policy. Accepting an argument that a clear public policy is established because an administrative regulation covers the subject matter at issue would expand the public policy claim to all statutory and administrative enactments. Under that view, the exception would swallow the rule.
(Emphasis sic.) Hale v. Mercy Health Partners, 20 F.Supp.3d 620, 639 (S.D.Ohio 2014).
5. Code of Federal Regulations (“C.F.R.“) and United States Code (“U.S.C.“)
{¶ 43} To find a clear public policy that precludes retaliation against employees who generally report alleged violations of Joint Commission standards or similar concerns would unnecessarily expand the public policy exception. Heigel‘s arguments are in essence an end-around the central issue of whether the content or context of her claims are subject to a clear public policy. Heigel has not met her burden of demonstrating the existence of such a clear public policy in this instance.
{¶ 45} Considering the above, Heigel has failed to establish the existence of a clear public policy applicable to her and therefore has failed to meet her requisite burden of articulating a specific public policy that MetroHealth violated when it discharged her from employment.
ii. Remaining Elements
{¶ 46} Having failed to satisfy the clarity element, Heigel has failed to establish a claim for wrongful termination in violation of public policy. See Dohme, 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825 at ¶ 26 (deciding that because the plaintiff failed to establish that his termination was in violation of a clear public policy, his action “must fail because establishment of the clarity element is essential to the survival of his remaining claims“). See also Rowe at ¶ 32. Thus, we need not decide whether Heigel has established any of the remaining elements to the public policy exception. Dohme at ¶ 26, citing PDK Laboratories, Inc. v. United States Drug Enforcement Administration, 360 U.S.App.D.C. 344, 362 F.3d 786 (C.A.D.C.2004) (Roberts, J., concurring in part and concurring in
{¶ 47} Accordingly, the trial court correctly granted summary judgment in favor of MetroHealth.
{¶ 48} The assignments of error are overruled.
{¶ 49} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MICHAEL JOHN RYAN, JUDGE
MARY EILEEN KILBANE, P.J., and EMANUELLA D. GROVES, J., CONCUR