CINDY SHINGLER v. PROVIDER SERVICES HOLDINGS, L.L.C., ET AL.
No. 106383
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 12, 2018
2018-Ohio-2740
E.A. Gallagher, A.J., Kilbane, J., and McCormack, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-16-869891
Kimberly C. Young
Marilena Disivio
Elk & Elk Co., Ltd.
6105 Parkland Boulevard, Suite 200
Mayfield Heights, Ohio 44124
ATTORNEYS FOR APPELLEES
Susan M. Audey
Ernest W. Auciello
Tucker Ellis L.L.P.
950 Main Avenue, Suite 1100
Cleveland, Ohio 44113
Eric B. Hershberger
862 Bluffview Drive
Columbus, Ohio 43235
{1} Plaintiff-appellant Cindy Shingler appeals from the trial court‘s order dismissing her complaint against defendants-appellees Provider Services Holdings, L.L.C. (“Provider Services“) and Lafayette Point Nursing and Rehabilitation Center (“Lafayette“) (collectively, “appellees“) with prejudice for failure to state a claim for which relief could be granted. Shingler asserts that because she failed to comply with the requirements for bringing a wrongful discharge claim under Ohio‘s whistleblower statute,
Factual and Procedural Background1
{2} From 2008 to August 8, 2012, Shingler was employed by Provider Services, serving as a director of nursing at Lafayette. On July 30, 2012, a nursing assistant who Shingler supervised informed her that another Lafayette employee, Brenda Burdett, who was not a licensed nurse or certified nursing assistant, was engaging in unauthorized patient care. Shingler informed her supervisоr, Jeff Grewell, of these reports.
{3} The following day, Shingler received two additional reports that Burdett was engaging in unauthorized patient care. Shingler once again informed Grewell of these reports. Shingler claims that, in response to these reports, Grewell told her: “Cindy, you will be the one to
{4} On August 3, 2012, Shingler met with four of appellees’ representatives to discuss her allegations. She was instructed to turn over all materials she had relating to her investigation of the unlicensed practice of nursing at Lafayette. After the meeting concluded, Shingler was placed on administrative leave. Shingler attended a second meeting on August 8, 2012. Shingler claims that, at that meeting, she was forced to sign a separation agreement terminating her employment with appellees.
{5} On October 3, 2016, Shingler filed the instant action against appellees in the Cuyahoga County Court of Common Pleas, asserting a claim for wrongful discharge in violation of public policy.2 Shingler alleged that her termination was “in direct retaliation” for her report to the Ohio Board of Nursing. She further alleged that her termination violаtes the “clear public policy” expressed in
{7} Appellees filed an answer denying the material allegations of the complaint and asserting various affirmative defenses, including failure to state a claim for which relief can be granted and Shingler‘s failure to “strictly comply with the requirements of any applicable and actionable whistleblower or anti-retaliation statute or provision.” In July 2017, the trial court granted appellees leave to file a combined motion to dismiss and for judgment on the pleadings pursuant to Civ.R. 12(B)(6) аnd 12(C). Appellees argued that Shingler‘s complaint failed to state a claim for which relief could be granted because: (1) Shingler could not satisfy the “jeopardy element” of her common-law wrongful discharge in violation of public policy claim (also referred to as a “Greeley claim“)4 because
{8} Shingler opposed the motion, arguing that (1) appellees’ motion to dismiss was not timely filed and must be analyzed as a motion for judgment on the pleadings and (2) her complaint pled a cognizable common-law claim for wrongful discharge in violation of public policy because no remedy was available to her under Ohio‘s whistleblower statute since she did
{9} On September 17, 2018, the trial court granted appellees’ motion and dismissed Shingler‘s complaint with prejudice. Citing this court‘s decision in Davidson v. B.P. Am., 125 Ohio App.3d 643, 709 N.E.2d 510 (8th Dist.1997), and the language of
{10} Shingler appealed, raising the following two assignments of error for review:
- The trial court erred in granting defendants’ motion to dismiss plaintiff‘s claim for termination in violation of public policy where no other remedy was available to plaintiff for her wrongful termination.
- The trial court erred in granting defendants’ motion to dismiss plaintiff‘s case for failure to state a claim after defendants demonstrated clear waiver of that defense.
Law and Analysis
Waiver of Failure to State a Claim Defense
{11} For ease of discussion, we address Shingler‘s second assignment of error first. In her second assignment of error, Shingler argues that appellees waived their defense of failure to
{12} Civ.R. 12(B) provides, in relevant part:
How presented. Every defense, in law or fact, to a claim for relief in any pleading * * * shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * (3) improper venue, * * * (6) failure to state a claim upon which relief can be granted * * *. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. * * *
{13} Civ.R. 12(G) further provides:
Consolidation of defenses and objections. A party who makes a motion under this rule must join with it the other motions herein provided for and then available to him. If a party makes a motion under this rule and does not include therein all defenses and objections then available to him which this rule permits to be raised by motion, he shall not thereafter assert by motion or responsive pleading, any of the defenses or objections so omitted, except as provided in subdivision (H) of this rule.
(Emphasis added.)
{14} Civ.R. 12(H)(2), permits “[a] defense of failure to state a claim upon which relief can be granted * * * [to] be made in any pleading permitted or ordered under Rule 7(A), or by motion for judgment on the pleadings, or at the trial on the merits.” In this case, appellees raised the defense of failure to state a claim for which relief could be granted in their answer and then filed a combined motion to dismiss and a motion for judgment on the pleadings with leave of court. Even if appellees’ Civ.R. 12(B)(6) motion to dismiss was untimely under Civ.R.
{15} Under Civ.R. 12(C), “[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” The progress of proceedings and the manner in which a trial court controls its own docket are matters within the discretion of the trial court. See, e.g., JP Morgan Chase Bank v. Stevens, 8th Dist. Cuyahoga No. 104835, 2017-Ohio-7165, ¶ 17; Bayview Loan Servicing, L.L.C. v. St. Cyr, 8th Dist. Cuyahoga No. 104655, 2017-Ohio-2758, ¶ 26; Chou v. Chou, 8th Dist. Cuyahoga No. 80611, 2002-Ohio-5335, 38. In this case, appellees sought, and the trial court granted appellees, leave to file their motion more than four months before the scheduled trial date. On the record before us, we cannot say that the trial court abused its discretion in granting appellees leave to file their motion. Shingler‘s second assignment of error is overruled.
Dismissal of Shingler‘s Complaint for Failure to State a Claim of Wrongful Discharge in Violation of Public Policy
{16} In her first assignment of error, Shingler contends that her complaint states a cognizable common-law claim for wrongful discharge in violation of public policy based on
She argues that because she did not file a written report — which she concedes is a requirement for bringing a claim under Ohio‘s whistleblower statute,
Standard of Review
{17} A Civ.R. 12(C) motion for judgment on the pleadings presents only questions of law.6 Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio St.3d 574, 581-582, 752 N.E.2d 267 (2001). Dismissal of a complaint is appropriate under Civ.R. 12(C) when, after construing all material allegations in the pleadings, along with all reasonable inferences drawn therefrom in favor of the plaintiff, the court finds that the plaintiff can prove no set of facts in support of his or
{18} Construing all material allegations in the pleadings and all reasonable inferences that can drawn therefrom in favor of Shingler, we find that Shingler can prove no set of facts in support of her claim that would entitle her to relief. Accordingly, the trial court did not err in dismissing her complaint.
{19} In Ohio, the common-law doctrine of employment at-will governs employment relationships. As such, an employer‘s termination of employment of an at-will employee does not generally give rise to an action for damages. Dohme v. Eurand Am. Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825, ¶ 11; Collins v. Rizkana, 73 Ohio St.3d 65, 67-68, 652 N.E.2d 653 (1995). If, however, an employee is terminated in contravention of a clear public policy articulated in the Ohio or United States Constitution, federal or state statutes, administrative rulеs and regulations or the common law, a cause of action for wrongful discharge in violation of public policy may exist as an exception to the general rule. Dohme at ¶ 11; Painter v. Graley, 70 Ohio St.3d 377, 639 N.E.2d 51 (1994), paragraphs two and three of the syllabus; see also Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d 981 (1990).
{20} To prevail on a claim of wrongful discharge in violation of public policy, a plaintiff must establish four elements: (1) that a clear public policy exists that is manifested in a state or federal constitution, statute or administrative regulation or in the common law (the “clarity element“); (2) that dismissing an employee under circumstances like those involved in the
{21}
{22} Analysis of the jeopardy element involves an inquiry into the existence of any alternative means of promoting the particular public policy to be vindicated by a common-law wrongful discharge claim. As the Ohio Supreme Court explained in Wiles v. Medina Auto Parts, 96 Ohio St.3d 240, 2002-Ohio-3994, 773 N.E.2d 526:
“If the statute that establishes the public policy contains its own remedies, it is less likely that tort liability
is necessary tо prevent dismissals from interfering with realizing the statutory policy.” [2 Perritt, Employee Dismissal Law and Practice, Section 7.26, at 71 (4th Ed.1998)]. Simply put, there is no need to recognize a common-law action for wrongful discharge if there already exists a statutory remedy that adequately protects society‘s interests. * * * In that situation, the public policy expressed in the statute would not be jeopardized by the absence of a common-law wrongful-discharge action in tort because an aggrieved employee has an alternate means of vindicating his or her statutory rights and thereby discouraging an employer from engaging in the unlawful conduct.
Wiles at 15; see also Cruz at ¶ 75 (when analyzing the jeoрardy element, “the focus is on whether the employee has a proper and adequate remedy for wrongful termination when an employer discharges the employee in violation of the recognized public policy“); Rebello at ¶ 54 (The jeopardy element “requires a showing ‘not just that a policy may have been violated [as to the plaintiff] but also that the policy itself is at risk if the discharge of the employee is allowed to continue.‘“), quoting Zwiebel v. Plastipak Packaging, Inc., 3d Dist. Shelby No. 17-12-20, 2013-Ohio-3785, ¶ 32.
{23} In other words, “it is unnecessary to recognize a common-law claim when remedy provisions are an essential part of the statutes upon which the plaintiff deрends for the public policy claim and when those remedies adequately protect society‘s interest by discouraging the
{24} Shingler argues that because she did not strictly comply with the requirements for bringing a claim under
{25}
A registered nurse, licensed practical nurse, dialysis technician, community health worker, or medication aide who in good faith makes a report under this chapter or
any other provision of the Revised Code regarding a violation of this chapter or any other provision of the Revised Code, or participates in any investigation, administrative proceeding, or judicial proceeding resulting from the report, has the full protection against retaliatory action provided by sections 4113.51 to4113.53 of the Revised Code.
(Emphasis added.)
{26}
(B) In the absence of fraud or bad faith, no person reporting to the board of nursing or testifying in an adjudicаtion conducted under Chapter 119. of the Revised Code with regard to alleged incidents of negligence or malpractice or matters subject to this chapter or sections
3123.41 to3123.50 of the Revised Code and any applicable rules adopted under section3123.63 of the Revised Code shall be subject to either of the following based on making the report or testifying:(1) Liability in damages in a civil action for injury, death, or loss to person or property;
(2) Discipline or dismissal by an employer.
(C) An individual who is disciplined or dismissed in violation of division (B)(2) of this section has the same rights and duties accorded an employee under sections
4113.52 and4113.53 of the Revised Code.
(Emphasis added.)
{27}
(A)(1)(a) If an employee beсomes 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 the employee reasonably believes that the violation 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, a felony, or an improper solicitation for a contribution, 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. * * *
(D) If an employer takes any disciplinary or retaliatory action against an employee as a result of the employee‘s having filed a report under division (A) of
this section, the employee may bring a civil action for appropriate injunctive relief or for the remedies set forth in division (E) of this section, or both, within one hundred eighty days after the date the disciplinary or retaliatory action was tаken, in a court of common pleas in accordance with the Rules of Civil Procedure. * * *
{28} In this case, a statutory remedy exists under
{29} Because the legislature specifically adopted the “rights and duties” under
{30} Rather, Shingler argues that we should recognize a common-law claim for wrongful discharge in violation of public policy under thе circumstances of this case because otherwise employers would be “free to terminate persons acting in accordance with the reporting requirements of the Nurse Practice Act, simply by doing so before a written report of violations is received.” However, this is not that case. Shingler has not alleged that she was fired in order to prevent her from filing a written report or that she otherwise could not have complied with, or would have had difficulty complying with, the statutory requirements for bringing a retaliatory discharge claim set forth in
{32} Because Shingler did not satisfy the jeopardy element of her wrongful discharge in violation of public policy claim, the trial court properly dismissed her complaint. Shingler‘s first assignment оf error is overruled.
{33} Judgment affirmed.
It is ordered that appellees recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas 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.
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE
TIM MCCORMACK, J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS (WITH SEPARATE OPINION ATTACHED)
MARY EILEEN KILBANE, J., DISSENTING:
{34} I respectfully dissent. I would find that the trial court‘s dismissal of Shingler‘s complaint was improvidently granted at this stage of the proceedings.
{35} Shingler had been employed as Direсtor of Nursing with Provider Services from 2008 to August 8, 2012, when she was required to sign a separation agreement terminating her employment, after she reported to her employer nine days earlier that the marketing secretary, Burdett, was allegedly engaging in unauthorized patient care of the nursing home residents. Shingler received reports from certified nursing assistants that Burdett allegedly assisted the residents “in ambulating to and from and using the toilet” and laid “a patient down” against doctor‘s orders.
{36} Shingler received the first report on July 30, 2012. That same day she reported Burdett‘s behavior to Grewell, a nursing home administrator. The next day, July 31, 2012, Shingler received twо more complaints that she then reported to Grewell. Two days later, she reported these violations to the Ohio Board of Nursing. The next day, on August 3, 2012, Shingler was called to a meeting with appellees and ordered to turn over all materials she had relating to her investigation of the unlicensed practice of nursing at Lafayette. At the conclusion of the meeting, Shingler was placed on administrative leave. On August 8, 2012, which was nine days after her initial report and five days after being placed on leave, Shingler attended
{37} In Greeley, 49 Ohio St.3d 228, 551 N.E.2d 981 at ¶ 8, the Ohio Supreme Court recognized “that the judicial doctrine of employment at will must yield when it contravenes * * * public policy[.]”7 In the instant case, the public policy implications are compelling — the unauthorized practice of patient care. Particularly disturbing in this case is that three different nursing assistants reported that the marketing secretary was allegedly engaging in the medical care of nursing home patients. Patients, who more often than not, have no voice or even the capacity to fully comprehend their surroundings.
{38} A plaintiff must prove four elements to prevail on a Greeley claim. At issue here is the jeopardy element. With regard to the jeopardy element, “[t]he focus is on whether the employee has a proper and adequate remedy for wrongful termination when an employer discharges the employee in violation of the recognized public policy.” Cruz, 2017-Ohio-4176, 92 N.E.3d 143 at ¶ 75. Under this analysis, I would find that Shingler was not afforded an adequate remedy for the almost instantaneous retaliatory dismissal. Shingler was forced to resign her position with Provider Services only nine days after she initially reported that the unlicеnsed marketing secretary was providing unauthorized nursing care. For five of those days, she was placed on administrative leave. When construing all material factual allegations in her complaint and all reasonable inferences therefrom in Shingler‘s favor, it is unclear if Provider Services terminated her employment abruptly in order to prevent Shingler from filing a written
{39} Based on the record before us, it cannot be said beyond doubt that Shingler could prove no set of facts in support of her claim that would entitle her to relief. For these reasons, I would find that the dismissal of Shingler‘s case at this stage of the proceedings was premature.