Hulsmeyer v. Hospice of Southwest Ohio, Inc.Hulsmeyer v. Hospice of Southwest Ohio, Inc.
ΟΡΙΝΙΟ Ν.
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,
AARP Foundation Litigation, Kelly Bagby, Kimberly Bernard and Alison Falb, for Amicus Curiae AARP.
Please note: this case has been removed from the accelerated calendar.
Per Curiam.
{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.
{4} Hulsmeyer immediately called thе Director of Nursing at Brookdale, Cynthia Spaunagle, to report her suspicions of abuse or neglect. Spaunagle said that she would take all appropriate measures, including contacting the patient‘s daughter after ordering an examination of the injuries. Hulsmeyer then reported the suspected abuse to her own supervisor, Hospice‘s Chief Clinical Officer, Isha Abdullah, but Abdullah did not appear to take the report seriously. Finally, Hulsmeyer called the patient‘s daughter, who was also the patient‘s power of attorney, reported the suspected abuse, and informed her that Spaunagle would be contacting her. The following day Hulsmeyer submitted a written report to Abdullah concerning the suspected abuse or neglect of the patient.
{5} On October 24, 2011, the patient‘s daughter contacted Hulsmeyer and left a voice message stating that Spaunаgle had not yet contacted 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 tо discuss the patient‘s care. Numerous 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
{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 Dirеctor of Human Resources, was also 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 beеn called and the photographs should not 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 assоciated with her” because he “[didn‘t] have time.”
{9} On November 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 аbuse until Lippert had contacted Abdullah, sometime 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.
{10} On February 28, 2012, Hulsmeyer filed suit against Brookdale, Hospice, and Killian. She alleged that Brookdale, Hospice, and Killian had wrongfully terminated her employment in violation of
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); sеe also Natl. City Commercial Capital Corp. v. AAAA at Your Serv., Inc., 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.
{12} The trial court held that Hulsmeyer could not state a claim for retaliation because
{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 hеr prior statement that she had not made a report to the Ohio Director 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 cоurt‘s conclusion that she could not satisfy the jeopardy element of the claim because
Standard of Review
{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 сomplaint as true, drawing all reasonable inferences in the plaintiff‘s favor, and then 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
{17} In Arsham-Brenner, the Eighth District held that the protections of
{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
a claim for retaliatory discharge under
{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 appellate 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.
applied, not interpreted.” Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944), paragraph five of the syllabus.
{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 оr
misappropriation of the property of a resident; indicates an intention to 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
legislature, however, did not employ these words and we may not add them to the statute. See State v. Taniguchi, 74 Ohio St.3d 154, 156, 656 N.E.2d 1286 (1995) (holding that “a court should give effect to the words actually employed in a statute and should not delete words used, or insert words not used, in the guise of interpreting the statute.“); see also Wachendorf v. Shaver, 149 Ohio St. 231, 236-37, 78 N.E.2d 370 (1948).
{25} Because the statute is unambiguоus and does not limit reports of suspected abuse or neglect to only those reports made or intended to be made to the Director of Health, we need not look to
{26} Brookdale additionally argues that Hulsmeyer‘s retaliation 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.
{27} First, she alleged that she was used by Brookdale to oversee the care for сertain residents and to monitor the care of other nurses providing care for those residents. She further alleged that she also attended a meeting at Brookdale‘s facility to consult with Brookdale‘s staff and the patient‘s family to ensure the patient was receiving proper care. These facts were sufficient to withstand Brookdale‘s motion to dismiss.
{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
(1) That a clear public policy 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 оf 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 public policy claim, but we reverse that portion of its judgment dismissing Hulsmeyer‘s claim for retaliation under
Point Health Care, 8th Dist. Cuyahoga No. 74835, 2000 Ohio App. LEXIS 3164 (July 31, 2000). We, therefore, certify to the Supreme Court of Ohio, pursuant to Section 3(B)(4), Article IV, Ohio Constitution, the following issue for review and final determination: “Must an employee or another individual used by the person or government entity to perform any work or services make a report or indicate an intention to report suspected abuse or neglect of a nursing home resident to the Ohio Director of Health to state a 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.