PATRICIA HULSMEYER v. HOSPICE OF SOUTHWEST OHIO, INC., JOSEPH KILLIAN, and BROOKDALE SENIOR LIVING, INC.
APPEAL NO. C-120822
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 25, 2013
[Cite as Hulsmeyer v. Hospice of Southwest Ohio, Inc., 2013-Ohio-4147.]
TRIAL NO. A-1201578; Civil Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Robert A. Klingler Co. L.P.A., Robert A. Klingler and Brian J. Butler, for Plaintiff-Appellant,
Dinsmore & Shohl, LLP, Michael Hawkins and Faith Isenhath, for Defendants-Appellees Hospice of Southwest Ohio, Inc., and Joseph Killian,
Tucker Ellis & West LLP, Victoria Vance and Susan M. Audey for Defendant-Appellee Brookdale Senior Living Inc.,
Michael Kirkman and Ohio Disability Rights Law and Policy Center, Inc., for Amicus Curiae Disability Rights Ohio,
Please note: this case has been removed from the accelerated calendar.
{1} Plaintiff-appellant Patricia Hulsmeyer appeals the trial court‘s judgment dismissing her claims for retaliation under
{2} Because Hulsmeyer need not report suspected abuse or neglect of a nursing home resident to the Ohio Director of Health to state a claim for retaliation under
Hulsmeyer‘s Complaint
{3} Hulsmeyer is a registered nurse. She formerly served as a team manager for Hospice. Her duties included overseeing the care of Hospice‘s patients who resided at one of Brookdale‘s facilities in Cincinnati, and supervising other Hospice nurses who provided care to those residents. On October 19, 2011, during a patient care meeting of Hospice employees in which Hulsmeyer participated, a Hospice nurse indicated that one of Hospice‘s patients at Brookdale had suffered some bruising, which she feared was the result of abuse or neglect at the hands of Brookdale staff. A second Hospice employee, an aide, had taken photographs of the injuries at the patient‘s request, which she showed to those in attendance. Three Hospice employees, who were present at the meeting, informed Hulsmeyer that she was obligated to call Brookdale and the patient‘s family immediately to report the suspected abuse or neglect.
{5} On October 24, 2011, the patient‘s daughter contacted Hulsmeyer and left a voice message stating that Spaunagle had not yet contaсted her. Later that same day, the patient‘s daughter contacted Hulsmeyer and informed her that she had called Ida Hecht, the Executive Director of Brookdale, seeking information about her mother‘s injuries. Hecht had not heard about the injuries or Hulsmeyer‘s suspicions of abuse or neglect, but she told the patient‘s daughter that she would look into the matter. On November 4, 2011, a meeting was held at Brookdale to discuss the patient‘s care. Numеrous Brookdale and Hospice employees were present, including Hulsmeyer, as well as the patient‘s son and daughter.
{6} On November 11, 2011, Hulsmeyer began a planned leave of absence to undergo a medical procedure and was not to return to work until November 28, 2011. During Hulsmeyer‘s leave of absence, Jackie Lippert, Regional Health and Wellness Director for Brookdale, contacted Hospice and demanded to know who had informed the patient‘s daughter of the suspected abuse or neglect. During the telephone call, Ms.
{7} On November 28, 2011, Hulsmeyer‘s first day back at work following her leave of absence, Abdullah asked Hulsmeyer to join her in her office. Betty Barnett, Hospice‘s COO and Director of Human Resources, was alsо in Abdullah‘s office. They explained to Hulsmeyer that they all had to call Lippert. Lippert was irate. She stated that the patient‘s daughter had told her that she would not recommend Brookdale to anyone. She accused Hulsmeyer of making Brookdale “look bad” and “stirring up problems.” After Barnett asked what should have been done differently, Lippert snapped, “The family should not have been called and the photographs should nоt have been taken.” Finally, Lippert threatened that Brookdale would cease recommending Hospice to its residents.
{8} Two days later, Barnett called Hulsmeyer into her office and informed her that she would be terminated. Taken aback by the termination, Hulsmeyer attempted to meet with Killian, but Barnett informed Hulsmeyer that Killian had instructed Barnett to “cut ties” with Hulsmeyer and that he “[didn‘t] want to be associated with her” because he “[didn‘t] have time.”
{9} On Nоvember 30, 2011, in a letter signed by Killian and Abdullah, Hospice informed Hulsmeyer that she was terminated. In the letter, Hospice stated that Hulsmeyer had not timely notified Hospice‘s “Management” about the suspected abuse, criticized her for notifying the patient‘s daughter about the suspected abuse, and claimed Hospice‘s “upper management” had not learned about the suspected abuse until Lippert had contacted Abdullah, sometimе after November 11, 2011. The termination letter also specifically identified the fact that Hulsmeyer had contacted the patient‘s daughter as justification for her termination.
Jurisdiction
{11} Brookdale argues that this court lacks jurisdiction over Hulsmeyer‘s appeal. It asserts that Hulsmeyer is not appealing from a final appealable order because the trial court dismissed her public policy and retaliation claims without prejudice. See Civ.R. 41(B)(3); see also Natl. City Commercial Capital Corp. v. AAAA at Your Serv., Inс., 114 Ohio St.3d 82, 2007-Ohio-2942, 868 N.E.2d 663, ¶ 8. An order granting a motion to dismiss for failure to state a claim, however, even if expressly dismissed without prejudice, may be final and appealable if the plaintiff cannot plead the claims any differently to state a claim for relief. See George v. State, 10th Dist. Franklin Nos. 10AP-4 and 10AP-97, 2010-Ohio-5262, ¶ 13, citing Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 17. Here, the trial court‘s dismissal of Hulsmeyer‘s public policy and retaliation claims was based upon its conclusion that they failed as a matter of law.
{13} Notwithstanding the trial court‘s notation that it was dismissing the claims without prejudice, no further allegations or statements of facts consistent with the pleadings could cure the defect to these claims. Unless Hulsmeyer were to have disavowed her prior statement that she had not made a report to the Ohio Direсtor of Health, which would have been inconsistent with the allegations in her present complaint, the trial court‘s conclusion with respect to her retaliation claim would have been unalterable. Similarly, even if Hulsmeyer were to change the facts of her complaint, her public policy claim would still fail as a matter of law based upon the trial court‘s conclusion that she could not satisfy the jeopardy element of the сlaim because
{14} In two assignments of error, Hulsmeyer argues that the trial court erred in dismissing her retaliation and public policy claims for failure to state a claim under Civ.R. 12(B)(6). We review dismissals by the trial court under Civ.R. 12(B)(6) under a de novo standard of review. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. In determining the appropriateness of a dismissal, we, like the trial court, are constrained to take the allegations in the complaint as true, drawing all reasonable inferences in the plaintiff‘s favor, and thеn to decide if the plaintiff has stated any basis for relief. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). A dismissal should be granted only if the plaintiff can plead no set of facts that would entitle it to relief. O‘Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.
Retaliation Claim under R.C. 3721.24
{15} In her first assignment of error, Hulsmeyer argues the trial court erred in dismissing her claim for retaliation under
{16} The trial court held that
{18} Similarly, in Davis v. Marriott Internatl., Inc., the Sixth Circuit rejected an employee‘s claim that a report of suspected abuse to her supervisors satisfied
{19} Hulsmeyer argues that the trial court, as well as the Arsham-Brenner and Davis courts, erred by reading
{20} The interpretation of a statute is a matter of law that an aрpellate court reviews under a de novo standard of review. Akron Centre Plaza, L.L.C. v. Summit Cty. Bd. of Revision, 128 Ohio St.3d 145, 2010-Ohio-5035, 942 N.E.2d 1054, ¶ 10. The Ohio Supreme Court has held that in interpreting a statute, a court must first look to the language of the statute itself. See Spencer v. Freight Handlers, Inc., 131 Ohio St.3d 316, 2012-Ohio-880, 964 N.E.2d 1030, ¶ 16. Words used in a statute must be read in context and accorded their normal, usual, and customary meaning.
{21} “It is only where the words of a statute are ambiguous, are based upon an uncertain meaning, or, if there is an apparent conflict of some provisions, that a court has the right to interpret a statute.” Brooks v. Ohio State Univ., 111 Ohio App.3d 342, 349, 676 N.E.2d 162 (10th Dist.1996). A statute is ambiguous where its language is susceptible of more than one reasonable interpretation. In re Baby Boy Brooks, 136 Ohio App.3d 824, 829, 737 N.E.2d 1062 (10th Dist.2000). “When a statute is subject to more than one interpretation, courts seek to interpret the statutory provision in a manner that most readily furthers the legislative purpose as reflected in the wording used in the legislation.” AT&T Communications of Ohio, Inc. v. Lynch, 132 Ohio St.3d 92, 2012-Ohio-1975, 969 N.E.2d 1166, ¶ 18, quoting State ex rel. Toledo Edison Co. v. Clyde, 76 Ohio St.3d 508, 513, 668 N.E.2d 498, (1996). In interpreting an ambiguous statute, a court may inquire into the legislative intent behind the statute, its legislative history, public policy, laws on the same or similar subjects, the consequences of a particular interpretation, or any other factor identified in
{22}
(A) No person or government entity shall retaliate against an employee or another individual used by the person or government entity to perform any work or services who, in good faith, makes a report of suspected abuse or neglect of a resident or
misappropriation of the property of a resident; indicates an intention tо make such a report; provides information during an investigation of suspected abuse, neglect, or misappropriation conducted by the director of health; or participates in a hearing conducted under section
3721.23 of the Revised Code or in any other administrative or judicial proceedings pertaining to the suspected abuse, neglect, or misappropriation. For purposes of this division, retaliatory actions include discharging, demoting, or transferring the employee or other person, preparing a negative work performance evaluation of the employee or other person, reducing the benefits, pay, or work privileges of the employee or other person, and any other action intended to retaliate against the employee or other person.
{23} After reading the statute, we agree with Hulsmeyer that the plain language of
{24} Had the legislature meant to limit the protection afforded to only reports of suspected abuse or neglect made to the Director of Health, it could have easily done so by either directly inserting the words “to the Director of Health” after the word “report,” by referencing
{25} Because the statute is unambiguous and does not limit reports of suspected abuse or neglect to only those reports made or intеnded to be made to the Director of Health, we need not look to
{26} Brookdale additionally argues that Hulsmeyer‘s rеtaliation claim fails as a matter of law because Hulsmeyer has failed to allege that she was “used by” Brookdale to perform any work or services.
{28} Because
Public Policy Claim
{29} In her second assignment of error, Hulsmeyer argues that the trial court erred in dismissing her claim for wrongful discharge in violation of public policy against Hospice on the basis that she had an adequate remedy available pursuant to
{30} In order to state a claim for wrongful discharge in violation of public policy, a plaintiff must show:
(1) That a clear public pоlicy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element); (2) That 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 overriding legitimate
business justification for the dismissal (the overriding justification element).
Collins v. Rizkana, 73 Ohio St.3d 65, 69-70, 652 N.E.2d 653 (1995). The first two elements—the clarity element and the jeopardy element—are questions of law to be determined by the court, while the third and fourth elements—the causation element and the overriding business justification element—are questions of fact for the trier of fact. Id.
{31} In Dolan v. St. Mary‘s Home, 153 Ohio App.3d 441, 2003-Ohio-3383, 794 N.E.2d 716 (1st Dist.) this court followed the Ohio Supreme Court‘s decision in Wiles v. Medina Auto Parts, 96 Ohio St.3d 241, 2002-Ohio-3994, 773 N.E.2d 526. We held that because the remedies provided by
Conclusion
{32} In conclusion, we affirm the portion of the trial court‘s judgment dismissing Hulsmeyer‘s publiс policy claim, but we reverse that portion of its judgment dismissing Hulsmeyer‘s claim for retaliation under
Judgment affirmed in part, reversed in part, and cause remanded.
HENDON, P.J., CUNNINGHAM and FISCHER, JJ., concur.
Please note: The court has recorded its own entry this date.