Morris v. Dobbins Nursing HomeMorris v. Dobbins Nursing Home
Reminger Co., LPA, Danny Merril Newman, Jr., 525 Vine Street, Suite 1700, Cincinnati, Ohio 45202, for defendants-appellees
O P I N I O N
HUTZEL, J.
{¶1} Plaintiff-appellant, Stephanie Morris, appeals the decision of the Clermont County Court of Common Pleas granting summary judgment in favor of
{¶2} From August 8, 2005, through March 14, 2006, Dobbins Nursing Home employed Morris as an activities aide. During Morris’ employment, Meeker was the licensed nursing home administrator. Chambers was employed as the nursing home‘s activities director, and she was Morris’ immediate supervisor.
{¶3} Upon being hired, Morris went through the nursing home‘s orientation. At her orientation, Morris signed a statement acknowledging that she was an employee at-will. Morris further acknowledged she had been informed of her job duties and the personnel policies of the nursing home. Less than three months later, near the end of October 2005, Morris attended a mandatory in-service meeting sponsored by Meeker. At this meeting nursing home emplоyees were instructed on how resident funds should be handled. Morris signed the in-service attendance sheet, stating that she had read the nursing home‘s policy regarding money brought to Dobbins Nursing Home.
{¶4} The policy stated the following: “All money, rents, payments, residents’ funds, donations in check, money order, cash – whatever, any & all forms it be in by its bearer brought or by * * * any mode of delivery, goes to the [nursing home] administrator/administrator‘s office. Employees should avoid receiving above described funds & send funds & money bearer to administrator. If administrator [is] away, nurse in charge should be informed & nurse [should] lock funds in med[icаl] cart lock-up. If funds are cash, write the bearer a receipt on any piece of paper, sign & date it. Write dollar amount, from whom, to whom & for what cash [is] for on
{¶5} In November 2005, Morris received permission from Mable Farris, a resident at the nursing home, and Juanita Farris, Mable‘s daughter-in-law and the individual responsible for Mable‘s care in 2005 and 2006, to handle Mable‘s checks2 and to provide transportation for Mable. Juanita allegedly wrote two notes giving Morris such permission, and the notes were filed in Mable‘s patient file by Edith Roepken, a charge nurse at Dobbins in November 2005, who was later promoted to director of nursing in January 2006.
{¶6} In February 2006, the
{¶8} After terminating Morris’ employment, Meeker and Chambers reported Morris’ misappropriation of resident funds to the New Richmond Police Department. Chambers also reported Morris’ threatening statement. On March 15, 2006, an arrest warrant was issued and criminal charges for theft and menacing were brought against Morris in the Clermont County Municipal Court. On May 12, 2006, the charges against Morris were dismissed, and Morris was ordered not to have any further contact with Chambers or Dobbins Nursing Home.
{¶9} Thereafter, Morris initiated suit against Dobbins Nursing Home, Meeker, and Chambers for disability discrimination, wrongful discharge in violation of public
{¶10} Assignment of Error No. 1:
{¶11} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO * * * APPELLEES BECAUSE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER MORRIS WAS TERMINATED IN VIOLATION OF OHIO PUBLIC POLICY * * *.”
{¶12} Assignment of Error No. 2:
{¶13} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO * * * APPELLEES BECAUSE ISSUES OF MATERIAL FACT EXIST AS TO MORRIS’ CLAIM AGAINST * * * APPELLEES FOR MALICIOUS PROSECUTION.”
{¶14} This court‘s review of a trial court‘s ruling on a motion for summary judgment is de novo. Grizinski v. Am. Express Fin. Advisors, Inc., 187 Ohio App.3d 393, 2010-Ohio-1945, ¶14. “De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial.” Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 383. Summary judgment is appropriate when there are no genuine issues of material fact to be litigated, the moving party is entitled to judgment as a matter of law, and reasonable minds can
{¶15} To prevail on a motion for summary judgment, the moving party must be able to point to evidentiary materials that show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. The nonmoving party must then present evidence that some issue of material fact remains to be resolved. Id. All evidence submitted in connection with a motion for summary judgment must be construed most strongly in favor of the party against whom the motion is made. Morris v. First Natl. Bank & Trust Co. (1970), 21 Ohio St.2d 25, 28.
{¶16} In her first assignment of error, Morris claims the trial court erred in granting summary judgment in appellees’ favor as genuine issues of material fact exist as to whether her employment was terminated in violation of Ohio‘s public policy. Morris claims that the trial court erred in applying the Whistleblower Statute,
{¶18} In the instant case, Morris did not comply with the requirements set forth in
{¶19} To proceed with a claim for wrongful termination in violation of Ohio public policy, a plaintiff must demonstrate four things:
{¶20} “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).
{¶21} “2. That dismissing employees under circumstances like those involved in the plaintiff‘s dismissal would jeopardize the public policy (the jeopardy element).
{¶23} “4. The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).” Painter v. Graley, 70 Ohio St.3d 377, 384, fn. 8, 1994-Ohio-334.
{¶24} The clarity and jeopardy elements are questions of law and policy to be determined by the court, whereas the causation and overriding justification elements are questions of fact to be determined by the jury. Collins v. Rizkana, 73 Ohio St.3d 65, 70, 1995-Ohio-135.
{¶25} Morris contends that there are two clear public policies that would be jeopardized if Dobbins Nursing Home were permitted to terminate her employment under the circumstances described above. First, Morris contends that a clear public policy is embodied in
{¶26} The sections of the Code of Federal Regulations that Morris relies upon merely provide baseline technical criteria that Dobbins Nursing Home had to meet in order to operate the nursing home facility. By relying solely on these operating regulations, without relying on the public policy embodied in the Whistleblower Statute, Morris is unable to demonstrate that her terminаtion violated public policy. None of the regulations relied on by Morris affirmatively required her, as an employee of the nursing home, to report improper operation of the nursing home. The alleged misconduct by appellees is not manifested clearly enough in the regulations set forth by Morris to warrant abrogating the at-will employment doctrine. See e.g. Dean v. Consol. Equities Realty #3, L.L.C., 182 Ohio App.3d 725, 2009-Ohio-2480; Hale v. Volunteers of America, 158 Ohio App.3d 415, 2004-Ohio-4508; Shaffer v. Ohio Health Corp., Franklin App. No. 04AP-236, 2004-Ohio-6523. Accordingly, we find that
{¶27} Morris also contends that Ohio‘s public policy against fraud, as it is set forth in
{¶28} “We are mindful that even if a complaint neither contains allegations on a legal theory nor suggests or intends to advance that theory, the complaint may still be sufficient if it contain[s] allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.” (Emphasis sic; internal quotation marks omitted.) White v. Mt. Carmel Med. Ctr., 150 Ohio App.3d 316, 2002-Ohio-6446, ¶52. However, in the present case, we find that appellees could not have been expected to infer that Morris was going to claim wrongful discharge for refusing to commit a criminal act. Nothing in Morris’ complaint alluded to such a theory. Her complaint is completely devoid of any reference to wrongful termination for refusing to create false documents. The only ground for termination alleged in Morris’ complaint was that she “was terminated because of her acts in
{¶29} Accordingly, we find Morris’ late disclosure of a new ground for termination in her memorandum in opposition to summary judgment to be improper. “A plaintiff cannot fulfill her burden under
{¶30} Because Morris is unable to establish as a matter of law that a clear public policy exists and is manifested in a state or federal constitution, statute or administrative regulation, or in the common law, we find that appellees are entitled to summary judgment on Morris’ wrongful discharge claim. Morris’ first assignment of error is overruled.
{¶31} In her second assignment of error, Morris claims that the trial court erred in granting summary judgment to appellees on her malicious prosecution claim as genuinе issues of material fact exist regarding whether Chambers maliciously provided untrue statements to the police or intentionally provided incomplete testimony to the police so that the arrest warrant was issued without probable cause. Morris also claims that the trial court erred in considering appellees’ advice of
{¶32} “To prevail on a malicious prosecution claim, a plaintiff must prove (1) maliсe in initiating or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused.” Frazier v. Clinton Cty. Sheriff‘s Office, Clinton App. No. CA2008-04-015, 2008-Ohio-6064, ¶14. Appellees did not challenge the third element of a claim for malicious prosecution, but rather moved for summary judgment on the ground that Morris could not demonstrate that the prosecution was initiated with malice and without a finding of probable cause.
{¶33} “Malice is the state of mind under which a person intentionally does a wrongful act without a reasonable lawful excuse and with the intent to inflict injury or under circumstances from which the law will infer an evil intent. * * * For purposes of malicious prosecution it means an improper purpose, or any purpose other than the legitimate interest of bringing the offender to justice.” (Internal citations omitted.) Criss v. Springfield Twp. (1990), 56 Ohio St.3d 82, 84-85. Malice may be inferred from lack of probable cause. Barnes v. Meijer Dept. Store, Butler App. No. CA2003-09-246, 2004-Ohio-1716, ¶27.
{¶34} Probable cause exists when a reasonably prudent person believes that the individual to be arrested has committed a crime. Frazier, at ¶15. “Because the
{¶35} Charges of theft in violation of
{¶36} “On 3-14-06 I became aware through conversation with Stephanie Morris that she had removed a resident‘s personal funds from the facility without thе authorization of the administration or her supervisor. This is in total violation of facility policy and procedures. I demanded that she leave the facility and go to her home and bring the money back to the facility for safekeeping of the resident. She totally refused to do so. She was terminated from Dobbins on this day.
{¶37} “The amount of money she had was unknown at the time.
{¶38} “I escorted her out of the facility upon her termination. She was told at that time that she was not permitted back on the property and if so the police would be called. She also threatened me as I was escorting her out of the facility. She stated: ‘If you don‘t put my things down I‘ll give them reason to call the police on me to get me out of here.‘”
{¶39} Pursuant to
{¶40}
{¶41} Based on the foregoing, we find that appellees had a legitimate interest in reporting Morris’ handling of resident funds to the New Richmond Police Department. Appellees had cause to believe that Morris had improperly handled and misappropriated resident funds in violation of the nursing home‘s internal policies and federal regulations. Regardless of whether Morris had received permission from Mable Farris, Juanita Farris, or Roepken to handle Mable‘s funds, the nursing home‘s internal policies made it clear that only the nursing home administrator, Meeker, was authorized to handle resident funds or provide permission for other employees to handle such funds, and that employees who violated the policy would be subject to an internal abuse investigation and possible criminal investigation by the local police department. Morris has failed to present evidence that would indicate that appellees acted with an improper or malicious motive in reporting her misconduct to the police.
{¶42} We further find that Morris has failed to meet her burden of offering evidence that would indicate that the criminal proceedings initiated against her were brought without probable cause. “Upon proof that a warrant for [one‘s] arrest had issued, which [is] offered to demonstrate that the criminal proceedings did not lack probable cause, it became [the plaintiff‘s] burden under the rule of Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-170, to offer evidence that proof of the warrant was insufficient for that purpose.” Weidemann, 2007-Ohio-5373 at ¶31. Appellees
{¶43} With respect to the menacing charge, which makes it illegal for a person to “knowingly cause another to believe that the offender will cause physical harm to the person or property of the other person * * *“;
{¶44} Morris has failed to present evidеnce demonstrating that a question of fact exists regarding whether appellees instituted criminal proceedings with malice or without probable cause. Accordingly, we find that appellees are entitled to summary judgment on the malicious prosecution claim. We find it unnecessary to address appellees’ advice of counsel defense or Morris’ claim that the defense cannot be raised as it was not properly or timely pleaded as an affirmative defense. Morris’ second assignment of error is overruled.
{¶45} Judgment affirmed.