Hulsmeyer v. Hospice of Southwest Ohio, Inc. , 2013 Ohio 4147 ( 2013 )

[Cite as Hulsmeyer v. Hospice of Southwest Ohio, Inc., 2013-Ohio-4147.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
PATRICIA HULSMEYER, : APPEAL NO. C-120822
TRIAL NO. A-1201578
Plaintiff-Appellant, :
vs. : O P I N I O N.
HOSPICE OF SOUTHWEST OHIO, :
INC.,
:
JOSEPH KILLIAN,
:
and
:
BROOKDALE SENIOR LIVING, INC.,
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: September 25, 2013
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,
OHIO FIRST DISTRICT COURT OF APPEALS
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.
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OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} Plaintiff-appellant Patricia Hulsmeyer appeals the trial court’s judgment
dismissing her claims for retaliation under R.C. 3721.24 and for wrongful discharge in
violation of public policy against defendants-appellees, her former employer, Hospice of
Southwest Ohio, Inc. (“Hospice”), its CEO, Joseph Killian, and Brookdale Senior Living,
Inc. (“Brookdale”), a corporation that operated a long term and residential care facility
where Hospice provided services.
{¶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 R.C. 3721.24, we reverse that part of the trial court’s judgment dismissing her
retaliation claim under R.C. 3721.24 against Hospice, Killian, and Brookdale. We, affirm
however, the dismissal of her claim against Hospice for wrongful discharge in violation
of public policy because R.C. 3721.24 provides Hulsmeyer with an adequate remedy.
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.
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{¶4} Hulsmeyer immediately called the 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 Spaunagle 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 to 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 call, Ms.
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OHIO FIRST DISTRICT COURT OF APPEALS
Lippert stated, “We got rid of our problem [Spaunagle], what are you going to do?”
Brookdale had terminated Spaunagle.
{¶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 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 been 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
associated 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 abuse 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.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶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 R.C. 3721.24 for reporting suspected abuse
and neglect of a nursing home resident. She also asserted a claim against Hospice for
wrongful discharge in violation of public policy and a claim against Brookdale for
tortious interference with a business relationship. Hospice, Killian, and Brookdale
moved pursuant to Civ.R. 12(B)(6) to dismiss all of Hulsmeyer’s claims against them.
The trial court dismissed all of Hulsmeyer’s claims without prejudice except her claim
for tortious interference with a business relationship against Brookdale. After
conducting limited discovery, Hulsmeyer dismissed with prejudice her remaining claim
against Brookdale to pursue this appeal.
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.,
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.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} The trial court held that Hulsmeyer could not state a claim for retaliation
because R.C. 3721.24 protects a nursing home employee from retaliation only for
reporting or intending to report suspected abuse or neglect of a resident to the Ohio
Director of Health and that Hulsmeyer had failed to allege that she had reported or
intended to report the suspected abuse and neglect to the Ohio Director of Health. It
further held that Ohio public policy would not be jeopardized if nursing home employees
are terminated for reporting abuse or neglect because R.C. 3721.24 affords them an
adequate remedy.
{¶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 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
court’s conclusion that she could not satisfy the jeopardy element of the claim because
R.C. 3721.24 had provided her with an adequate remedy. Because there would be no
possible factual scenario under which she could state a claim for retaliation in violation
of R.C. 3721.24 and for wrongful discharge in violation of public policy, the trial court’s
dismissal of her claims was in fact an adjudication of the merits of those claims. See
State ex rel. Arcadia Acres v. Ohio Dept. of Job & Family Servs., 123 Ohio St.3d 54,
2009-Ohio-4176, 914 N.E.2d 170, ¶ 15. We, therefore, conclude that we have jurisdiction
to entertain her appeal.
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OHIO FIRST DISTRICT COURT OF APPEALS
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
complaint 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 R.C. 3721.24.
{¶16} The trial court held that R.C. 3721.24 only protects employees from
retaliation who report or intend to report abuse or neglect to the Ohio Director of
Health. Because Hulsmeyer had not alleged that she had reported or intended to
report the suspected abuse to the Director of Health, she could not state a claim for
relief under R.C. 3721.24. In reaching this conclusion, the trial court relied upon the
Eighth Appellate District’s decision in Arsham-Brenner v. Grande Point Health Care
Comm., 8th Dist. Cuyahoga No. 74835, 2000 Ohio App. LEXIS 3164 (July 13, 2000),
and an unreported opinion from the Sixth Circuit, Davis v. Marriott Internatl., Inc.,
6th Cir. No. 04-4156, 2005 U.S. App. LEXIS 21789 (Oct. 4, 2005), which had
followed Arsham-Brenner.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} In Arsham-Brenner, the Eighth District held that the protections
of R.C. 3721.24 apply only when an employer learns that an individual has reported
abuse or neglect to the Ohio Director of Health, and thereafter retaliates against that
individual for making such a report to the agency. Arshem-Brenner at *21. The court
reached this conclusion by reading R.C. 3721.24 together with R.C. 3721.22 and
3721.23. The court noted that “[u]nder R.C. 3721.22(A), a licensed health
professional is obligated to report suspected abuse or neglect ‘to the director of
health.’ Sections B and C describe voluntary reporting to the ‘director of health.’ The
intervening statute, R.C. 3721.23, refers to the duties of the director of health to
investigate allegations.” The court noted that by “[r]eading these statutes together,
we believe that R.C. 3721.24 forbids retaliation for reports, whether obligatory or
voluntary, made only to the director of health pursuant to R.C. 3721.22. Any reports
to others, such as to appellant’s employer, of suspected resident abuse or neglect, do
not qualify for protection under R.C. 3721.24(A).” Id.{¶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 R.C. 3721.24. It stated that the Eighth District’s interpretation of the statute
in Arsham-Brenner was far from unreasonable, given that the Ohio Supreme Court
had held that “ ‘all statutes which relate to the same general subject matter must be
read in pari materia’ ” and that it “ha[d] previously construed whistleblower statutes
narrowly.” Davis at *8, quoting Carnes v. Kemp, 104 Ohio St.3d 629, 2004-Ohio-
7107, 821 N.E.2d 180, ¶ 16, and citing Kulch v. Structural Fibers, Inc., 78 Ohio St.3d
134, 677 N.E.2d 308 (1997). As a result, the Sixth Circuit followed Arsham-Brenner,
read the statutes together, and held that the employee’s complaint had failed to state
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OHIO FIRST DISTRICT COURT OF APPEALS
a claim for retaliatory discharge under R.C. 3721.24 because she had not alleged that
she had made or intended to make a report to the director of health. Davis at *9.
{¶19} Hulsmeyer argues that the trial court, as well as the Arsham-
Brenner and Davis courts, erred by reading R.C. 3721.24 in pari materia with R.C.
3721.22 and 3721.23. She argues that under the rules of statutory construction, a
court must first look to the language of the statute, itself, and because R.C. 3721.24 is
unambiguous, there is no need to look to R.C. 3721.22 or 3721.23 to interpret R.C.
3721.24. Hospice, Killian, and Brookdale, argue, on the other hand, that this court
should follow the interpretation of R.C. 3721.24 set forth in Arsham-Brenner and
Davis. They argue that because R.C. 3721.22 and 3721.24 relate to the same subject
matter―reporting resident abuse and neglect―that they must be construed together
and be read in pari materia.
{¶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.
R.C. 1.42. If the words in a statute are “free from ambiguity and doubt, and express
plainly, clearly and distinctly, the sense of the law-making body, there is no occasion
to resort to other means of interpretation.” State v. Hairston, 101 Ohio St.3d 308,
2004-Ohio-969, 804 N.E.2d 471, ¶ 12 quoting Slingluff v. Weaver, 66 Ohio St. 621,
64 N.E. 574 (1902), paragraph two of the syllabus. “An unambiguous statute is to be
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OHIO FIRST DISTRICT COURT OF APPEALS
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 R.C. 1.49. See Toledo Edison, 76 Ohio St.3d at 513-514, 668 N.E.2d 498.
Furthermore, when interpreting a statute, courts must avoid unreasonable or absurd
results. State ex rel. Asti v. Ohio Dept. of Youth Servs., 107 Ohio St.3d 262, 2005-
Ohio-6432, 838 N.E.2d 658, ¶ 28.
{¶22} R.C. 3721.24 provides in pertinent part:
(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
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OHIO FIRST DISTRICT COURT OF APPEALS
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 R.C. 3721.24(A) forbids retaliation “against an employee or another
individual used by the person or government entity to perform any work or services
who, in good faith, makes or indicates an intention to make a report of suspected
abuse or neglect of a resident * * *.” The statute provides protection for any reports
of suspected abuse and neglect that are made or intended to be made, not just those
reports that are made or intended to be made to the Director of Health.
{¶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 R.C. 3721.22 in conjunction with report, or by
referring to the report made as one specified under R.C. Chapter 3721. The
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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 unambiguous 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 R.C. 3721.22 and 3721.23 for assistance in
interpreting the statute. See State ex rel. Hermann v. Klopfleisch, 72 Ohio St.3d 581,
585, 651 N.E.2d 995 (1995) (the in pari materia rule may only be used in interpreting
statutes where some doubt or ambiguity exists). 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 R.C. 3721.24, the trial court erred in dismissing her
retaliation claim under R.C. 3721.24 against Hospice, Killian, and Brookdale on this
basis.
{¶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. R.C. 3721.24 provides a cause of action
for an “employee or another individual used by the person or government entity to
perform any work or services” who is terminated for reporting suspected abuse and
neglect. After reviewing the allegations in her complaint, however, we find that
Hulsmeyer has alleged sufficient facts to withstand Brookdale's motion to dismiss.
Hulsmeyer alleged that Brookdale used Hospice nurses in conjunction with its own
staff to provide patient care at its long-term care facility in several ways.
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{¶27} First, she alleged that she was used by Brookdale to oversee the
care for certain 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 R.C. 3721.24 does not limit reports of suspected abuse and
neglect to only those reports made to the Ohio Director of Health, and because
Hulsmeyer has pleaded sufficient facts to state a claim against Hospice, Killian, and
Brookdale, we sustain her first assignment of error.
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 R.C. 3721.24 and thus, could not meet the jeopardy element of her claim.
{¶30} In order to state a claim for wrongful discharge in violation of
public policy, a plaintiff must show:
(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
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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 R.C. 3721.24 were
sufficient to vindicate the “public policy embodied in R.C. Chapter 3721 of protecting
the rights of nursing-home residents and of others who would report violations of
those rights,” the public policy expressed in R.C. Chapter 3721 would not be
jeopardized by the lack of a common-law public-policy claim. Id. at ¶ 17. Because
Hulsmeyer has a remedy by way of a claim for retaliation under R.C. 3721.24, the
trial court properly dismissed her claim for wrongful discharge in violation of public
policy. We, therefore, overrule her second assignment of error.
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 R.C. 3721.24. We,
therefore, remand this cause for further proceedings consistent with this opinion and
the law. We recognize that our resolution of Hulsmeyer’s first assignment of error
conflicts with the Eighth District Court of Appeals in Arsham-Brenner v. Grande
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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 R.C. 3721.24(A)?”
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.
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