Whitaker v. First Energy Nuclear Operating Co.Whitaker v. First Energy Nuclear Operating Co.
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R. Michael Frank and John D. Franklin, for appellant.
Denise M. Hasbrook and Emily Ciecka Wilcheck, for appellees.
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JENSEN, J.
{¶ 1} Plaintiff-appellant, Mark Whitaker, timely appeals the June 14, 2012 judgment of the Ottawa County Court of Common Pleas, granting summary judgment in favor of defendants-appellees, FirstEnergy Nuclear Operating Company (“FENOC“), FirstEnergy Corp., George Fidurski, David R. Kline, Joseph D. Hagan, Craig Fink, and
I. Background
{¶ 2} Mark Whitaker was employed by FENOC at the Davis-Besse Nuclear Power Station from 2001 until he was discharged on August 22, 2007. At the time of his termination he was working as a Nuclear Security Shift Supervisor. George Fidurski was Whitaker‘s direct supervisor.
{¶ 3} On February 26, 2007, one of Whitaker‘s co-workers complained to Fidurski that Whitaker was falsifying his timecards. As a nuclear power facility, Davis Besse is regulated by the Nuclear Regulatory Commission (“NRC“) and site access is highly secured. Whitaker worked mainly in an area of the facility referred to as a “protected area.” Employees with access to the protected area must swipe a badge upon entering and exiting. That activity is recorded and stored electronically in a badge history report. Upon receiving the complaint about Whitaker‘s allegedly fraudulent timekeeping practices, Fidurski investigated the matter by checking Whitaker‘s manuаl timecard for February 20, 2007 against the badge history report. That day, Whitaker logged eight hours on his timecard despite showing only 5 hours and 43 minutes on the automated system. Fidurski reported this to the Manager of Site Protection, David Kline.
{¶ 4} Around the same time, the NRC received an anonymous complaint containing broader allegations of timecard falsification among all Davis-Besse supervisors. It referred the complaint to FENOC‘s Employee Concerns Program to
{¶ 5} The investigation revealed that several supervisors had over-reported their hours, with Whitaker being the worst offender. Three of the eight supervisors had discrepancies under three hours; three had discrepancies between 11 to 18 hours; one supervisor, Timothy Camick, had a discrepancy of 39 hours; and Whitaker had a discrepancy of 85 hours. FENOC‘s internal auditor, Craig Fink, gave the supervisors an opportunity to explain the discrepancies. Whitaker was able to explain some, but not all of them. After accounting for the explained discrepancies, Whitaker‘s timecards overstated his work hours by 70 hours. FENOC concluded that the severity of Whitaker‘s and Camick‘s discrepancies rose to the level of fraudulent timekeeping. Whitaker was placed on administrative leave starting May 30, 2007, and his employment was terminated on August 22, 2007. Camick was also terminated.
{¶ 6} Following Whitaker‘s termination, FENOC was required by the NRC to conduct a review to determine his trustworthiness and reliability. Based upon its timecard investigation, FENOC concluded that Whitaker‘s fraudulent timecard reporting demonstrated that he did not possess a “high assurance of trustworthiness and reliability.” This resulted in Whitaker being flagged in a national database called Personnel Access
{¶ 7} On February 12, 2008, Whitaker filed suit (which he dismissed and re-filed in September 2010), alleging, inter alia, wrongful discharge under
{¶ 8} During his employment with FENOC, Whitaker, like all of the security shift supervisors, was responsible for submitting “condition reports” alerting FENOC to any safety and security concerns he observed in performing his duties. Between July 2, 2002 and May 27, 2007, Whitaker wrote 136 condition reports. He claims that in mid-2006, Fidurski told him to “slow down” in writing condition reports. Whitаker believes that because he ignored this order, FENOC retaliated by terminating him. Whitaker also believes that alleged safety concerns that he shared in confidence with consultant Marie Kraft, who was working with the shift supervisors to improve performance and communication, were conveyed to his supervisors. He believes he was retaliated against for this as well.
{¶ 9} In addition to his wrongful termination claims, Whitaker asserted a claim for defamation. He contends that because he was placed on the “denied access list” and flagged in the national database, he has been unable to get another job in the power and energy industry. Because appellees’ allegations of fraudulent timekeeping caused him to
{¶ 10} After exchanging written discovery and conducting numerous depositions, appellees moved for summary judgment on September 1, 2011. On June 14, 2012, the trial court granted appellees’ motion. Whitaker now appeals the trial court‘s judgment and assigns the following errors for our review:
First Assignment of Error: The trial court committed prejudicial and reversible error when it grantеd Appellees’ Motion for Summary Judgment on Whitaker‘s workplace safety public policy whistleblower claim, given there are genuine issues of factual dispute on the record and the Appellees’ [sic] are not entitled to judgment as a matter of law.
Second Assignment of Error: The trial court committed prejudicial and reversible error when it granted Appellees’ Motion for Summary Judgment on Whitaker‘s defamation claim given there are genuine issues of factual dispute in the record and the Appellees are not entitled to judgment as a matter of law.
{¶ 11} For the reasons that follow, we find Whitaker‘s assignments of error not well-taken, and we affirm the judgment of the Ottawa County Court of Common Pleas.
{¶ 12} Appellate review of a summary judgment is de novo, Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978),
Civ.R. 56(C) .
{¶ 13} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleadings, but must respond with specific facts showing that there is a genuine issue of material fact.
III. Law and Analysis
{¶ 14} In his first assignment of error, Whitaker argues that the trial court erred by granting appellees’ motion for summary judgment on his workplace safety public policy claim. The trial court based its dismissal of Whitaker‘s claim on (1) its determination that no such claim exists; and (2) its conclusion that even if the claim exists, Whitaker failed to establish the elements of the claim.
{¶ 15} Whitaker was an employee at-will. The act of terminating an at-will employee‘s relationship with an employer generally does not give rise to an action for damages. Collins v. Rizkana, 73 Ohio St.3d 65, 67, 652 N.E.2d 653 (1995); Mers v. Dispatch Printing Co., 19 Ohio St.3d 100, 483 N.E.2d 150 (1985), paragraph one of the syllabus. However, if an employee is discharged or disciplined 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, a cause of action for wrongful discharge in violation of public policy may exist as an exception to the general rule. Painter v. Graley, 70 Ohio St.3d 377, 639 N.E.2d 51 (1994), paragraph three of the
{¶ 16} To establish a prima facie claim of wrongful discharge in violation of public policy, the employee must demonstrate the following four elements:
- That a clear public policy existed and was manifested in a state or federаl constitution, statute or administrative regulation, or in the common law (the clarity element).
- That dismissing employees under circumstances like those involved in the plaintiff‘s dismissal would jeopardize the public policy (the jeopardy element).
- The plaintiff‘s dismissal was motivated by conduct related to the public policy (the causation element).
- The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element). (Emphasis sic.)
Rizkana at 69-70, quoting Graley, 70 Ohio St.3d at 384, fn. 8.
{¶ 17} The clarity and jeopardy elements involve questions of law, whereas the causation and overriding justification elements involve factual questions, which are generally reserved for the trier of fact. Id. at 70; see also Wiles v. Medina Auto Parts, 96 Ohio St.3d 240, 2002-Ohio-3994, 773 N.E.2d 526, ¶ 11 (“[T]he clarity and jeopardy elements [are] questions of law to be decided by the court while factual issues relating to the causation and overriding justification elements [are] generally for the trier of fact to
{¶ 18} Citing Leininger v. Pioneer Natl. Latex, 115 Ohio St.3d 311, 2007-Ohio-4921, 875 N.E.2d 36, the trial court concluded that Ohio does not recognize a common law action for wrongful termination in violation of Ohio‘s public policy favoring workplace safety because
1. Clarity and Jeopardy
{¶ 19} To state a valid public policy tort, the employee must show that a clear public policy existed and was manifested in a state or federal constitution, statute, or administrative regulation, or in the common law. This is referred to as “the clarity
{¶ 20} In Dohme, the employee claimed that he was terminated in violation of Ohio‘s public policy favoring workplace safety because he was discharged after expressing fire safety concerns to an insurance company representative who was inspecting the facility. As the source of his public policy claim, he recited syllabus languagе from the Ohio Supreme Court‘s decision in Pytlinski v. Brocar Prods., Inc., 94 Ohio St.3d 77, 760 N.E.2d 385 (2002): “Ohio public policy favoring workplace safety is an independent basis upon which a cause of action for wrongful discharge in violation of public policy may be prosecuted.” He also cited generally to the plurality opinion of Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 152, 677 N.E.2d 308 (1997). The court held that “the mere citation of the syllabus in Pytlinski is insufficient to meet the burden of articulating a clear public policy of workplace safety.” The court explained that “as the plaintiff, Dohme has the obligation to specify the sources of law that support the public policy he relies upon in his claim.” Dohme at ¶ 22. Because he did not cite any specific, applicable source of law, he did not satisfy the clarity element.
{¶ 21} Whitaker insists that аs opposed to simply citing the Pytlinski syllabus, as the Dohme plaintiff had, he cited specific statutory authority for the public policy upon which he based his claim. While it is true that he did not cite the syllabus, it appears that Whitaker merely recited footnote two of Pytlinski, which provides examples of Ohio
{¶ 22} Whitaker cited
{¶ 23} Whitaker also cited
{¶ 24}
{¶ 25} Finally, Whitaker cited
{¶ 26} In addition to failing to cite specific, applicable statutes giving rise to his public policy claim, Whitaker also failed to describe how FENOC jeopardized workers’ safety. While he provided examples of what he apparently considered to be the most egregious or prevalent safety violations, the trial court properly held that they did not suffice to establish the type of safety violations that
(1) A January 13, 2006 condition report reporting that an unspecified employee failed to self-check a door which resulted in that door being left ajar for one minute. The employee was briefed on proper door usage and a PowerPoint door issue summary was provided to employees.
(2) A March 6, 2006, condition report reporting that a speaker was not providing an audible alarm. The issue was investigated and corrected, leaving that alarm inoperablе for a period of 17 hours.
(3) Four condition reports dated March and April of 2006, reporting that contract employees had forgotten their badges, and a March 30, 2006, report that an employee was not in possession of his badge. All reports were immediately remediated by the badges being located. There was no unauthorized usage of the badges.
(4) An April 18, 2007 condition report setting forth Whitaker‘s personal opinion about deficiencies in the adversary training program, including his recommendation that there be a “pre-job” briefing on the training drill and a “buddy” patdown to remove live ammunition from training.
(5) A May 27, 2007 condition report noting that an alarm panel door in the central alarm station was secured with duct tape. Whitaker also included within this report that a console was dusty, a microwave was not working, and ceiling filters were dirty. All of these issues were investigated and determined to be the result of poor housekeeping practices. The panel door issue was remediated by removing the duct tape and securing the alarm panel with Velcro.
{¶ 27} We agree with the trial court that none of these condition reports provide evidence of an unsafe work environment. The March 6, 2006 and May 27, 2007 reports appear to describe simple maintenance issues that were responded to and remediated within hours of being identified. The April 18, 2007 report is simply a suggestion fоr improving upon a safety drill and Whitaker conceded at his deposition that the condition report was addressed and corrective actions were implemented. The March and April 2006 incidents involved employees forgetting their badges and did not result in any unauthorized use of badges. And those incidents, as well as the incident described in the January 13, 2006 report, describe simple errors by Whitaker‘s co-workers and not any failure by his employer to protect its employees’ safety. To the contrary, what these condition reports appear to establish is that appellees do, in fact, take measures to provide a safe working environment for its employees and encоurage employees to submit condition reports when they observe opportunities for improving safety.
{¶ 29} Turning to the jeopardy element, while cases interpreting this element often focus on whether statutory remedies exist that are adequate to promote the particular public policy (thus rendering the public policy claim unnecessary), Whitaker‘s failure to cite specific and applicable statutes, regulations, or constitutional provisiоns, combined with his failure to identify complaints of unsafe working conditions, prevents us from engaging in that specific analysis. See, e.g., Wiles v. Medina Auto Parts, 96 Ohio St.3d 240, 2002-Ohio-3994, 773 N.E.2d 526, ¶ 15 (“An analysis of the jeopardy element necessarily involves inquiring into the existence of any alternative means of promoting the particular public policy to be vindicated by a common-law wrongful-discharge claim.“). We, therefore, find that the trial court properly concluded that Whitaker failed to satisfy the jeopardy element of his claim.
2. Causation and Overriding Justification
{¶ 30} Even if Whitaker satisfied the clarity and jeopardy elements, he failed to satisfy the causation and overriding justification elements.
{¶ 31} The causation and overriding justification elements of a public policy wrоngful discharge claim involve considerations of factors similar to those used in determining whether an employee was unlawfully discharged in a statutory retaliation claim. Sells v. Holiday Mgt. Ltd., 10th Dist. Franklin No. 11AP-205, 2011-Ohio-5974,
{¶ 32} The causation element of a public policy claim is analyzed much like the causal relation element of a prima facie retaliation claim, and the overriding justification element is analyzed much like the burden on the employer to assert a legitimate, non-retaliatory reason for its actions. Sells at ¶ 22. Whitaker has failed to create a genuine issue of material fact (1) that he was terminated because he reported concerns about workplace safety, or (2) that appellees’ overriding justification for terminating him was pretextual.
{¶ 33} Whitaker claims that causal connection can be inferred from statements Fidurski made to him. For instance, Whitaker testified that Fidurski told him in mid-2006 to slow down in writing condition reports. He also claims that in 2006 and early
{¶ 34} As an initial matter, this district has held that “temporal proximity does not support a claim of retaliation absent other compelling evidence.” Coch v. Gem Indus., 6th Dist. Lucas No. L-04-1357, 2005-Ohio-3045, ¶ 40, citing Boggs v. The Scotts Co., 10th Dist. Franklin No. 04AP-425, 2005-Ohio-1264, ¶ 26. Whitaker has provided no compelling evidence. He apparently submitted condition reports as one of the duties of his position and had been doing so since 2002 with no repercussions. Moreover, the investigatiоn into supervisors’ timekeeping practices was well underway before he was placed on administrative leave. That he submitted a condition report the day before he was placed on administrative leave for fraudulent timekeeping presents more of a coincidence than a causal connection.
{¶ 35} But even if Whitaker could establish causation, he has not provided evidence sufficient to create a genuine issue of material fact that appellees’ reason for
{¶ 36} Appellees’ stated reason for terminating Whitaker was his fraudulent timekeeping practices. Appellees conducted an audit of all eight security shift supervisors (whose jobs also required them to submit condition reports) and discovered that Whitaker overstated his hours worked by at least 70 hours over a six-month period of time—by far the biggest discrepancy in the department. Although he claimed that a percentage of his work was spent outside of the areas that would be captured by the computer time records, he admitted at deposition that his job was no different than the other security shift supervisors‘. Despite the fact that his job was no different than the other security shift supervisors‘, Whitaker‘s time discreрancy far exceeded the others‘. Three of the supervisors had almost perfect timekeeping (discrepancies of under three hours); three had discrepancies, but far fewer than Whitaker and more consistent with sloppy timekeeping than with intentional misreporting (between 11-19 hours); and the other employee with a significant discrepancy (approximately 40 hours) was also terminated.
{¶ 37} Whitaker conceded that he was provided opportunities to mitigate the difference between his timesheets and the number of hours captured by the computer system. He never requested to review any day planners, notes, calendars, memos, or other documentation to еxplain the variation. He was able to account for only a few hours’ difference, bringing the discrepancy down from approximately 85 hours to 70
{¶ 38} Whitaker maintains that the statements that Fidurski made demonstrate that it was the condition reports—and not his fraudulent timekeeping practices—that led to his termination. For instance, he claims that Fidurski commented in 2006 that Whitaker had an “X” on his back because of all the condition reports he had filed and that he was making the department look bad. He also claims that in a meeting with all eight of the security shift supervisors in April of 2007, Fidurski allegedly complained to them that he “got his butt chewed off” by his supervisors because of what his employees had told the consultant, and he threatened that they would suffer the consequences.
{¶ 39} First, we note that Fidurski was not responsible for the decision to fire Whitaker. Setting that aside, as to the 2006 comment, this isolated statement made a year before he was terminated is insufficient to show that appellees’ stated reason for terminating him was pretextual. Gerding v. Girl Scouts of Maumee Valley Council, Inc., 6th Dist. Lucas No. L-07-1234, 2008-Ohio-4030, ¶ 32. And the April 2007 comment was directed toward the whole group of security shift supervisors and not to Whitaker specifically. In fact, Whitaker‘s co-worker, Lorrie Woytyshyn, testified that she did not interpret this statement as being threatening, and another co-worker, Ron Thompson, did not even remember the statement being made. This evidence simply does not create a
{¶ 40} Because Whitaker has failed to raise a genuine issue of material fact as to the causation and overriding justification elements of his public policy claim, the trial court properly granted summary judgment to appellees.
{¶ 41} In his second assignment of error, Whitaker contends that the trial court erred when it granted summary judgment in favor of appellees on his defamation claim. He argues that he presented evidence from which a jury could find that he did not falsify his timecards. Because this allegedly false information led appellees to conclude that he was not sufficiently trustworthy and reliable to be permitted unescorted access in a nuclear facility, causing him to be flagged by PADS, Whitaker was defamed.
{¶ 42} Defamation is defined as:
[A] false and malicious publication against an individual made with an intent to injure his reputation or to expose him to public hatred, contempt, ridicule, shame, or disgrace or to affect him injuriously in his trade, business or profession. It is defamatory, and actionable at law, if as a proximate consequence of the libel the individual against whom it is published occasions a pecuniary loss. Robb v. Lincoln Publishing (Ohio), Inc., 114 Ohio App.3d 595, 616, 683 N.E.2d 823 (12th Dist.1996).
{¶ 44} Ohio recognizes several defenses to a defamation claim. For example, “a defendant who can prove the truth of the allegedly defamatory statement has an absolute defense.” Early v. The Toledo Blade, 130 Ohio App.3d 302, 322, 702 N.E.2d 107 (6th Dist.1998), citing Shifflet v. Thomson Newspapers (Ohio), Inc., 69 Ohio St.2d 179, 183, 431 N.E.2d 1014 (1982). Here, the trial court determined that summary judgment was appropriate on Whitaker‘s defamation claim because the allegedly defamatory statement was true. We agree.
{¶ 45} The evidence is clear that Whitaker‘s name was flagged in the PADS database in order to denote the fact that FENOC had denied Whitaker unescorted access to its nuclear facilities. Because it is true that FENOC denied Whitaker such access following its investigation into the timecard discrepancies, FENOC has established an absolute defense to Whitaker‘s defamation claim. Thus, summary judgment in favor of FENOC was appropriate. Early at 322 (“When a defendant is able to demonstrate the truth of the allegedly defamatory statement, summary judgment can properly be granted.“).
IV. Conclusion
{¶ 47} The trial court properly held that appellant failed to establish the four elements of his claim for wrongful termination in violation of public policy. The triаl court also properly concluded that Whitaker‘s defamation claim failed because the statement that was published was true. We, therefore, affirm the June 14, 2012 judgment of the Ottawa County Court of Common Pleas. The costs of this appeal are assessed to appellant pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
JUDGE
James D. Jensen, J.
CONCUR.
JUDGE
Stephen A. Yarbrough, J., DISSENTS IN PART AND WRITES SEPARATELY.
{¶ 48} Because I would reverse the judgment of the Ottawa County Court of Common Pleas with respect to Whitaker‘s first assignment of error, I respectfully dissent. In particular, I would hold that Whitaker has met his burden of establishing a genuine issuе of material fact with respect to each of the four elements of his wrongful discharge claim, making summary judgment improper. I concur with the majority‘s determination on Whitaker‘s second assignment of error.
{¶ 49} With respect to the clarity element, the majority determines that Whitaker failed to cite a specific provision in a statute, constitution, regulation, or the common law that supports the public policy upon which he bases his claim. Specifically, the majority states that “it appears that Whitaker merely recited footnote two of [Pytlinski v. Brocar Prods., Inc., 94 Ohio St.3d 77, 760 N.E.2d 385 (2002)], which provides examples of Ohio statutes promoting safety in the workplace, and he added a reference to an Ocсupational Safety and Health Administration * * * statute.” Ultimately, the majority relies upon the Ohio Supreme Court‘s decision in Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825, in concluding that Whitaker failed to establish the clarity element.
{¶ 50} In Dohme, the court stated:
The mere citation of the syllabus in Pytlinski is insufficient to meet the burden of articulating a clear public policy of workplace safety. Further, Dohme only generally mentioned or identified any legal basis for a
statewide policy for workplace health and safety. Dohme did not cite any specific statement of law in support of his claim of public policy that was drawn from the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law. In contrast, the Pytlinski and [Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 677 N.E.2d 308 (1997)] plaintiffs both alleged that their respective employers had violated federal OSHA regulations. * * * Thus, Dohme failed to establish the existence of a clear public policy applicable to him in this matter. Id. at ¶ 21.
{¶ 51} Here, although it is true that Whitaker made reference to Pytlinski and Kulch in his opposition brief, he did not stop there. Indeed, Whitaker stated that his wrongful discharge claim “is based upon both the Occupational Health & Safety Act, [
{¶ 52} In Pytlinski, the Ohio Supreme Court included
{¶ 53} Likewise, I would conclude that Whitaker has met his burden under the jeopardy element. The majority suggests that Whitaker failed to satisfy the jeopardy element of his wrongful discharge claim due to his “failure to cite specific and applicable statutes, regulations, or constitutional provisions, combined with his failure to identify complaints of unsafe working conditions.” However, in light of Whitaker‘s citation to
{¶ 54} In order to establish the jeopardy element, a plaintiff must show that “dismissing employees under circumstances like those involved in the plaintiff‘s dismissal would jeopardize the public policy.” Collins v. Rizkana, 73 Ohio St.3d 65, 69-70, 652 N.E.2d 653 (1995). Whitaker alleges that he was terminated because he filed numerous condition reports outlining various issues pertaining to workplace safety. In accordance with the public policy favoring workplace safety, which is clearly set forth in
{¶ 56} Having determined that Whitaker satisfied the clarity and jeopardy elements, and further, that he raised a genuine issue of material fact as to the causation and overriding justification elements, I conclude that summary judgment in FENOC‘s favor was inappropriate. Accordingly, I would reverse the trial court‘s judgment with respect to Whitaker‘s wrongful discharge claim.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.