Heigel v. MetroHealth Sys. ( 2024 )

[Cite as Heigel v. MetroHealth Sys., 2024-Ohio-1471.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
LINDA HEIGEL, :
Plaintiff-Appellant, :
No. 112900
v.
THE METROHEALTH SYSTEM, :
ET AL.,
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 18, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-21-950160
Appearances:
Thorman Petrov Group Co., LPA, and Daniel P. Petrov, for
appellant.
Zashin & Rich Co., L.P.A., David P. Frantz, and Jzinae N.
Jackson, for appellees.
MICHAEL JOHN RYAN, J.:
Plaintiff-appellant, Linda Heigel, appeals the trial court’s decision to
grant summary judgment in favor of defendants-appellees The MetroHealth System
and MetroHealth nurse Kathleen Rizer (collectively referred to as “MetroHealth”).
For the reasons that follow, we affirm.
I. Background
In March 2021, Heigel was hired by MetroHealth for the position of
Director of Nursing of MetroHealth’s Ambulatory Network. She was employed less
than two months before being terminated from employment. Heigel’s position
included overseeing seven of MetroHealth’s outpatient clinics including J. Glen
(“Glenville”), Old Brooklyn, and Broadway. As a director of nursing, she was to
ensure “the provision of high quality, culturally sensitive, nursing/patient care in
accordance with evidence-based practice, current research, the American Nurses
Association (ANA) Scope and Standards of Nursing Practice and the ANA Code of
Ethics for the assigned clinical areas.” Heigel was also responsible for ensuring
compliance with all “regulatory agencies and applicable standards of nursing
practices.” It is undisputed that Heigel was an at will employee subject to a 90-day
probationary period and was terminated during that period.
The Joint Commission is an independent not-for-profit organization
that health care organizations employ to develop standards, perform surveys, and
assist with accreditation. Heigel had prior experience with the Joint Commission.
This impressed those who interviewed her for her position, including Rizer. Shortly
after MetroHealth hired Heigel, Rizer was promoted to Assistant Chief Nursing
Officer and became Heigel’s supervisor.
Heigel began identifying and reporting serious compliance issues to the
appropriate people at MetroHealth and met with Rizer at the Glenville clinic to
discuss these issues. According to Rizer, they immediately began to address Heigel’s
concerns. But employees began to complain about Heigel’s behavior. During a
Glenville site visit, the clinic’s nurse manager expressed to Rizer that Heigel had
engaged in “abrasive” and “aggressive” behavior with Glenville employees and her
comments to the employees were “destructively critical.” The nurse manager stated
that Heigel’s behavior was “bullying-like.” She did not, however, dispute Heigel’s
concerns with compliance issues; the nurse manager’s issues were solely with how
Heigel had behaved on site.
In late April, Heigel attended a walkthrough at the Old Brooklyn clinic,
which had recently undergone renovation. During the walkthrough, which was
supposed to be a celebratory occasion, Heigel noted to those in attendance what she
found to be Joint Commission standard compliance issues relating to the sizes of the
sink, patient privacy issues, and the location of a sharps container.
After the walkthrough, the director of the Old Brooklyn clinic contacted
Kimberly Svoboda, MetroHealth’s Executive Director of Ambulatory Operations,
and reported that Heigel made deflating comments during the walkthrough such as,
“I don’t know why they would do that” and “I wouldn’t do it that way,” which made
for a “difficult environment” among those in attendance. Svoboda contacted Heigel
to discuss the concerning feedback she had received about Heigel. Svoboda told
Heigel that MetroHealth valued her perspective, expertise, and feedback, but said
that her criticisms “needed to be in the right situation.” The walkthrough was not
an appropriate time because it was supposed to be an opportunity to build
confidence among staff and providers.
Another director of nursing who attended the event contacted Rizer
and reported that Heigel did not show she was supportive to the other employees.
According to this director, the other employees were feeling “a little defeated at that
moment” because they had worked so hard on the renovation.
Heigel asked who had complained about her at Old Brooklyn, but
Svoboda and Rizer would not disclose names. Heigel then emailed a few of the clinic
employees, apologizing if any of her comments were “perceived to be critical.” She
also emailed Svoboda stating that she realized that staff at the clinic “could have
perceived some of my comments * * * in a negative way.”
Another situation arose in the beginning of May, during a staff
meeting at the Broadway clinic. During the meeting, Heigel asked a medical
assistant about message response times. The clinic’s nurse manager interjected on
the medical assistant’s behalf and responded to Heigel’s question. After the
meeting, Heigel called the nurse manager into her office and accused her of
“undermining what I was trying to do, which was just understand what the process
was.”
The nurse manager immediately went to Carrie Prochazka from
human resources, who was on site that day. She described Heigel as “abrasive” and
“a bully,” and threatened to quit if she had to continue to work with Heigel.
Prochazka subsequently met with Heigel to discuss the situation. During that
meeting, Heigel asked Prochazka if she thought she (Heigel) was abrasive.
Prochazka responded that she thought Heigel could be perceived that way. Heigel
stated she was surprised Prochazka felt that way.
On May 7, 2021, Rizer met with her supervisor, Melissa Kline, Chief
Nursing Officer and Senior Vice President of Patient Care Services. At the meeting,
Rizer and Kline discussed the numerous complaints Rizer had received about Heigel
in the short time Heigel had been working at MetroHealth. They discussed that
Heigel had “significant issues” with her communication style and described her
behavior as “bullying,” “destructively critical,” focusing “on the negative,”
“abrasive,” “abrupt,” and “rude.” Following this meeting, the concerns with Heigel
were advanced to the MetroHealth’s Director of Human Resources who directed
Rizer and Kline to provide written summaries of the issues with Heigel, which they
did.
On May 12, 2021, the director presented Heigel with a termination
letter. Rizer was also in attendance. The letter provided, in part:
Ms. Heigel’s overall communication with staff does not meet the
expectations for a respectful, collaborative work environment. Despite
coaching, Ms. Heigel has failed to meet the expectations set forth by
MetroHealth’s STAR-IQ Values and Code of Conduct within her first
40 days of employment. As a result, Ms. Heigel’s employment is
terminated effective immediately.
The parties signed the termination memorandum and Heigel wrote
on the memorandum: “I believe this termination is a result of my communication
regarding significant regulatory issues and concerns regarding [patient] safety. I
was vocal about regulatory compliance, and I feel this is the result.”
Heigel subsequently filed suit, alleging wrongful termination in
violation of public policy and intimidation in violation of R.C. Chapter 2921 et seq.
MetroHealth moved for summary judgment, which the trial court granted.
Heigel filed the instant appeal.
II. Assigned Errors
I. The Trial Court erred as a matter of law when it determined no
genuine issue of material fact existed and granted Appellees’ Motion
for Summary Judgment dismissing Heigel’s claim for wrongful
termination in violation of Ohio public policy and witness intimidation,
when she was terminated on the heels of reporting multiple health and
safety violations in Appellees’ community health clinics.
II. The Trial Court erred as a matter of law when it determined that
there is no clearly articulated Ohio public policy that requires Appellees
in the management and operation of their community health clinics to
maintain a clean and safe environment minimizing the risk of infection
and contamination for its patients, who are residents of Ohio.
Before we review this case on its merits, we initially address the
problems in appellant’s brief on appeal. App.R. 16(A) requires a separate argument
for each assignment of error. Pursuant to App.R. 12(A)(2), an appellate court may
disregard any assignment of error for which a separate argument has not been made.
See Tube City, Inc. v. Halishak, 8th Dist. Cuyahoga No. 88287, 2007-Ohio-2118;
Portsmouth v. Internatl. Assn. of Fire Fighters, Local 512, 139 Ohio App.3d 621, 744
N.E.2d 1263 (4th Dist.2000). In Heigel’s brief, the two assignments of error are not
separately argued. The primary issue Heigel raises is whether the trial court erred
in granting MetroHealth’s motion for summary judgment. While App.R. 12(A)(2)
permits this court to disregard assignments of error that are not separately argued,
in the interest of judicial fairness, we will address the two assignments of error as
one and determine whether the trial court erred in granting summary judgment in
favor of MetroHealth.
III. Law and Analysis
A. Standard of Review
Appellate review of an award of summary judgment is de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
Summary judgment is appropriate under Civ.R. 56 when (1) no genuine issue as to
any material fact remains to be litigated; (2) the moving party is entitled to judgment
as a matter of law; and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can come to but one conclusion and that
conclusion is adverse to the nonmoving party. Temple v. Wean United, Inc., 50
Ohio St.2d 317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C). A court must view
the facts in the light most favorable to the nonmoving party and must resolve any
doubt in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d
356, 358-359, 604 N.E.2d 138 (1992).
B. At will Employment and Wrongful Discharge
“In Ohio, the common-law doctrine of employment at will governs
employment relationships.” Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-
Ohio-4609, 956 N.E.2d 825, ¶ 11. However, a cause of action for wrongful discharge
in violation of public policy may exist as an exception to the general rule regarding
at will employment. Id., citing Painter v. Graley, 70 Ohio St.3d 377, 639 N.E.2d 51(1994), paragraph three of the syllabus, and Greeley v. Miami Valley Maintenance
Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d 981 (1990), paragraph one of the
syllabus.
There are four elements that a plaintiff must establish to succeed on
a claim of wrongful discharge in violation of public policy:
(1) a clear public policy exists and is manifested in a state or federal
constitution, in statute or administrative regulation, or in the common
law (the clarity element), (2) 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 an overriding
legitimate business justification for the dismissal (the overriding-
justification element).
(Internal citations omitted). Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153,
2011-Ohio-2723, 950 N.E.2d 938, ¶ 9.
The clarity and jeopardy elements involve questions of law. They
encompass the determination of whether there is a public policy covering the
conduct alleged in a case and whether that public policy is put in jeopardy by that
conduct. Rowe v. Hoist & Crane Serv. Group, 8th Dist. Cuyahoga No. 110921, 2022-
Ohio-3130, ¶ 23. The causation and overriding-justification elements involve
questions of fact. Id. The trial court concluded that Heigel could not satisfy any of
the four elements of her wrongful discharge claim, but we note that a failure on any
one of the elements is fatal to her claims. See Dudley v. Siler Excavation Servs.,
LLC, 2023-Ohio-666, 210 N.E.3d 580 (12th Dist.).
i. Clarity Element
To demonstrate the clarity element a plaintiff must show that he or
she was disciplined or terminated “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.” Dohme, 130 Ohio St.3d 168,
2011-Ohio-4609, at ¶ 25. It is the plaintiff’s obligation to specify the sources of law
that support the public policy upon which the plaintiff relies. See id. at ¶ 18.
Heigel cites several state and federal statutes, the Ohio
Administrative Code, and the Joint Commissions Standards for Ambulatory Care to
support the clarity element. She also claims to rely on “related statutes, regulations,
and standards for health care organizations, and Ohio common law” alleging
MetroHealth engaged in the conduct and “subjected Plaintiff to unfair scrutiny and
discipline, unlawfully administered employment policies and standards,
scapegoated her, threatened her [,] and terminated her employment.”
1. Joint Commission Standards1
1 Heigel cites to the following Joint Commission Standards to support her claim:
APR.01.02.01, APR.09.03.01, EC.02.04.03, EC.02.06.01, IC.02.02.01, IM.02.01.01,
MM.05.01.11, LS.03.01.20, LS.03.01.30, and LS.03.01.70.
Heigel argues that the Joint Commission standards provide the
public policy that establishes the clarity element. Heigel was required to articulate
a clear public policy by citation to specific provisions in the federal or state
constitution, federal or state statutes, administrative rules and regulations, or
common law. “The [Joint Commission] is a national organization which establishes
standards for the operation of hospitals. It is not a government body.” Thompson
v. Mem. Hosp., 925 F.Supp. 400, 409, n.10 (D.Md. 1996), and its regulations are not
legislatively created. State ex rel. Woods v. Oak Hill Med. Ctr., 91 Ohio St.3d 459,
462, 746 N.E.2d 1108 (2001).
Heigel claims that “[c]ountless state and federal statutes and
regulations embody the public policy of maintaining and protecting patient safety.”
This argument does not support Heigel’s claim that the Joint Commission’s
standards constitute a source of Ohio public policy; it is Heigel’s burden to identify
the specific sources of public policy that apply to the facts of the case. See Dohme,
130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825, at ¶ 19, 24; Rowe, 8th Dist.
Cuyahoga No. 110921, 2022-Ohio-3130, at ¶ 30-31. Because the Joint Commission
standards are not legislatively created or otherwise found in state or federal law, we
find that they cannot be the basis of Heigel’s claim that she has met the clarity
element. Other states agree. Rowe at id. See also Brintley v. St. Mary Mercy Hosp.,
904 F. Supp.2d 699, 741 (E.D. Mich. 2012) (applying Michigan law and dismissing
wrongful discharge in violation of public policy claim noting that there is “[n]o legal
or statutory right [set forth] in the Joint Commission’s standards, nor do the
standards constitute any ‘right conferred by well-established legislative
enactment.’”); Turner v. Mem. Med. Ctr., 233 Ill.2d 494, 911 N.E.2d 369 (Ill. 2009)
(finding that Joint Commission Standards are not Illinois law and “thus cannot be
said to be representative of the public policy of the State of Illinois”).
2. Ohio Revised Code
Heigel also relies upon the following Ohio Revised Code sections:
R.C. 2903.33, 2913.02, 3727.02 (and Chapter 3727 et seq.), 4101.11, and 4101.12.
Not only is the burden on the plaintiff to “state with specificity the law
or policy that would have been violated by the refusal to perform an employment
action,” Sorensen v. Wise Mgt. Servs., 8th Dist. Cuyahoga No. 81627, 2003-Ohio-
767, ¶ 32, but the plaintiff must also identify a public policy concern that applies to
the facts of the case. Rowe at id.Heigel relies on R.C. 2903.33, which is a criminal statute that applies
to care and residential facilities, which are defined as institutions that provide long-
term care to dependent individuals. R.C. 2903.33(A)(1) - (6). Heigel’s claims and
allegations pertain to ambulatory clinics, which are not included in the statute.
Moreover, the statute criminalizes abuse, neglect, and gross neglect, all of which
involve knowingly or recklessly causing physical harm. R.C. 2903.33(B) - (C).
Heigel has not alleged that MetroHealth knowingly or recklessly caused physical
harm by abuse or neglect. Thus, the statute is inapplicable.
Likewise, R.C. 2913.02, Ohio’s theft statute, does not apply.
R.C. 2913.02 provides that “no person, with purpose to deprive the owner of
property or services, shall knowingly obtain or exert control over either the property
or services without consent, beyond the scope of consent, or by deception, threat,
intimidation.” R.C. 2913.02(A)(1) - (5). Heigel has not explained how this statute
applies to her claims; we find that it does not.
Heigel cites R.C. Chapter 3727, et seq., and specifically R.C. 3727.02.
R.C. 3727.02 requires a hospital to be certified under Title XVIII of 42 U.S.C. 301,
or “accredited by a national accrediting organization approved by the centers for
[M]edicare and [M]edicaid services.” Heigel has not argued that MetroHealth was
in violation of this provision.
3. R.C. 4101.11 and 4101.12
Heigel argues that she “clearly and unambiguously complained about
dangerous conditions on the Appellees’ business premises” and alleges she was fired
for making the complaints. To support her claim, Heigel refers to her deposition
testimony that there was “a bucket of dirty instruments” in the intake room,
“numerous expired lab vials,” “medications stored with cleaning supplies,” a “piece
of cardboard that had patient labels stuck all around it,” “cultures sitting on the desk
next to an open can of soda with a straw sticking out of it,” “numerous expired
medications,” a clinic waiting room that had “dead plants” and “bugs flying all
around,” and a clinic lacked a proper utility room for soiled uniforms. Heigel further
claims she “identified [ ] Joint Commission and patient privacy related issues” at the
Old Brooklyn clinic, including the sizes of sinks and the placement of curtains in
relation to sharps containers.
In her complaint, Heigel alleges:
1. MetroHealth engaged in unsafe, hazardous conduct that violated
company policies, standards applicable to health care organizations,
and state and federal laws and regulations related to public health,
safety, and patient privacy.
2. MetroHealth’s noncompliance with the applicable laws and
regulations related to health and safety was negatively impacting
patient care and posed a substantial risk to patient and employee health
and safety.
3. Heigel provided written complaints and documentary evidence of
the unsafe conduct.
4. MetroHealth was noncompliant with laws and regulations related to
the diversion of medication. Ms. Heigel reported that a MetroHealth
physician was improperly diverting Covid-19 vaccines.
5. MetroHealth sites were noncompliant with numerous Joint
Commission [s]tandards. Her reports related, but were not limited to,
the presence of expired supplies, soiled utilities improperly near
patients, dirty lab coats improperly kept in soiled utility rooms, boxes
were overflowing in soiled utilities rooms, clean and dirty supplies
commingled, and cardboard shipping boxes not properly disposed of
as required.
6. MetroHealth employees were incorrectly performing procedures
before the issuance of a physician’s order.
7. MetroHealth employees were not taking reasonable steps to
safeguard the protected health information of patients.
8. The reported conduct posed an unreasonable risk to the health and
safety of MetroHealth employees and patients and violated multiple
accreditation standards.
This court has explained, “The duty owed to frequenters under
R.C. 4101.11 and R.C. 4101.12 is no more than a codification of the common-law duty
* * * that the premises be kept in a reasonably safe condition and warning be given
of dangers of which the owner or occupier of the premises has knowledge.” Rettig
v. GMC, 8th Dist. Cuyahoga No. 86837, 2006-Ohio-6576, ¶ 8, citing Eicher v.
United States Steel Corp., 32 Ohio St.3d 248, 249, 512 N.E.2d 1165 (1987).
R.C. 4101.11 is “a codification of the common-law duty owed by the owner or
occupier of premises to business invitees to keep [the] premises in a reasonably safe
condition and to give warnings of latent or concealed perils of which [the owner or
occupier] has, or should have, knowledge” and has long been recognized as a
premises liability statute. Rowe, 8th Dist. Cuyahoga No. 110921, 2022-Ohio-3130,
at ¶ 31, citing Westwood v. Thrifty Boy Super Mkts., Inc., 29 Ohio St.2d 84, 86, 278
N.E.2d 673 (1972). R.C. 4101.12 is similar to R.C. 4101.11 and focuses on workplace
safety.
In Rowe, the plaintiff alleged that “untrained workers operat[ing]
machinery subjected him and his coworkers to an unsafe work environment” and
his employer failed to provide adequate personal protective equipment. Id. at ¶ 3,
5. This court upheld the trial court’s finding that the plaintiff did not meet his
burden to “cite to a specific source of public policy that is violated by [the employer’s]
conduct.” Id. at ¶ 31. This court found that the plaintiff “fail[ed] to allege any safety
issues covered by the public policy expressed in R.C. 4101.11. Furthermore, [the
plaintiff] failed to either allege that [the employer] kept the premises in an unsafe
condition or did not warn of latent or concealed perils.” Id.
Heigel relies on Blackburn v. Am. Dental Ctrs., 2014-Ohio-5329, 22
N.E.3d 1149 (10th Dist.), where the court held that R.C. 4101.11 and 4101.12 establish
a clear public policy in Ohio favoring workplace safety for employees and
frequenters.
In this case, the trial court expressly declined to follow Blackburn,
instead following then-established Eighth District precedent. The trial court’s order
granting summary judgment, however, was journalized shortly before this court
issued Rowe.
In Rowe, this court agreed with the reasoning in Blackburn, finding
that considering R.C. 4101.11 and 4101.12 “together establish[es] that there exists a
clear public policy that is manifested in a state or federal constitution, statute or
administrative regulation in Ohio favoring workplace safety for employees and
frequenters.” Rowe at ¶ 30, citing Blackburn. However, the Rowe Court also agreed
with the Sixth District’s more limited view that the statute the plaintiff relies on
“must identify a public policy concern that applies to the facts of the case.”
(Emphasis added.) Rowe at id., citing Whitaker v. First Energy Nuclear Operating
Co., 6th Dist. Ottawa No. OT-12-021, 2013-Ohio-3856.
Under her cause of action for wrongful discharge in violation of public
policy, Heigel specified that she complained to MetroHealth regarding its conduct
and non-compliance, which Heigel believed “was a hazard to the health and safety
of employees, patients and the public,” was “negatively impacting patient care[,] and
posed a substantial risk to patient employee health and safety.” Thus, Heigel claims
that it was MetroHealth’s conduct and non-compliance that violated public policy,
not that its premises were not kept in a reasonably safe condition or contained latent
dangers.
According to MetroHealth, the hospital system hired Heigel because
she had Joint Commission experience and because it was in a survey window at the
time of her hiring. Heigel was hired to identify and resolve issues like the ones she
identified at the clinics. There is no evidence that MetroHealth failed to take Heigel’s
findings seriously; Rizer testified at deposition that she met Heigel on-site to resolve
immediate concerns and the clinic’s manager continued to work on the identified
issues after their meeting. Contrary to Heigel’s assertions on appeal, she did not
allege in her complaint or other pleadings that MetroHealth’s premises were in an
unsafe condition, or dangerous due to concealed defects.
Considering the above, Heigel’s pleadings fail to allege safety issues
covered by the public policy expressed in R.C. 4101.11 and 4101.12. Heigel failed to
allege that MetroHealth kept its premises in an unsafe condition or did not warn of
latent or concealed perils. Although a plaintiff may use summary judgment
materials to flesh out the public policy relied upon, Blackburn v. Am. Dental Ctrs.,
2014-Ohio-5329, 22 N.E.3d 1149, ¶ 17 (10th Dist.), citing Dohme, 130 Ohio St.3d
168, 2011-Ohio-4609, 956 N.E.2d 825, neither Heigel’s complaint nor her brief in
opposition to summary judgment explain how a public policy exception in R.C.
4101.11 and 4101.12 apply to her claims. Consequently, Heigel fails to specify a
public policy violation committed by MetroHealth under these provisions.
4. Administrative Code
The Ohio Administrative Code also does not support Heigel’s claims.
Heigel cites to Ohio Adm. Code 4723-4-03 and 4723-4-04 (sets the standards for
nurses); Ohio Adm. Code 4723-4-07 (requirement that nurses report and document
nursing assessments, observations, and care provided, report errors in or deviations
in orders, and promote a safe environment for patients) and Ohio Adm. Code 3701-
84-07 (requires health care service providers to develop and follow patient care
policies relating to the treatment of patients and informed consent).
Again, Dohme requires a plaintiff to identify a specific statement of
law to support a valid claim and to articulate, by citation, a specific public policy that
the employer violated when the plaintiff was discharged. Id. at ¶ 19, 21. Heigel has
failed to do so. She has not identified the statement of law that provides the public
policy relevant to her claim, nor how MetroHealth violated any law or policy upon
her discharge. We are reminded that
the mere fact that a subject matter is covered by an administrative
regulation and may serve as a basis for a public policy claim does not
mean that each and every such regulation will be found to set forth a
clear public policy. Accepting an argument that a clear public policy is
established because an administrative regulation covers the subject
matter at issue would expand the public policy claim to all statutory
and administrative enactments. Under that view, the exception would
swallow the rule.
(Emphasis sic.) Hale v. Mercy Health Partners, 20 F.Supp.3d 620, 639
(S.D.Ohio 2014).
5. Code of Federal Regulations (“C.F.R.”) and United States Code
(“U.S.C.”)
Heigel cites 42 C.F.R. 482.23, which requires “adequate personnel to
provide nursing care to all patients as needed” as public policy designed for the
delivery of safe patient care. She also cites 42 U.S.C. 299, et seq. and 42 U.S.C. 11101.
Heigel has failed, however, to explain how these regulations are related to her
claims. Instead, Heigel attempts to piggyback an alleged complaint about Joint
Commission compliance issues to an alleged violation of 42 C.F.R. 482.23 by
arguing that her specific concerns “directly implicate[d] the health of Cuyahoga
County residents” and, therefore, implicated provisions of additional (unnamed)
federal and state laws. As mentioned, Joint Commission standards are not law. As
the trial court found, the public policy that warrants an exception to the at will
doctrine must be of “uniform, statewide application.” Greenwood v. Taft, 105 Ohio
App.3d 295, 300, 663 N.E.2d 1030 (1st Dist.1995). Put another way, a plaintiff
claiming wrongful discharge in violation of public policy may not rely on a city,
county, or other political subdivision’s law, rule, or policy to support his or her claim.
Id.To find a clear public policy that precludes retaliation against
employees who generally report alleged violations of Joint Commission standards
or similar concerns would unnecessarily expand the public policy exception.
Heigel’s arguments are in essence an end-around the central issue of whether the
content or context of her claims are subject to a clear public policy. Heigel has not
met her burden of demonstrating the existence of such a clear public policy in this
instance.
This is not to be construed to mean that none of the provisions Heigel
cited could serve as support for a wrongful discharge claim. We expressly stated in
Rowe, 8th Dist. Cuyahoga No. 110921, 2022-Ohio-3130, at ¶ 30, that R.C. 4101.11
and 4101.12, taken together, establish that there is a clear public policy in Ohio
favoring workplace safety. However, Heigel has failed to show any public policy
exception applies to her claims.
Considering the above, Heigel has failed to establish the existence of
a clear public policy applicable to her and therefore has failed to meet her requisite
burden of articulating a specific public policy that MetroHealth violated when it
discharged her from employment.
ii. Remaining Elements
Having failed to satisfy the clarity element, Heigel has failed to
establish a claim for wrongful termination in violation of public policy.
See Dohme, 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825 at ¶ 26 (deciding
that because the plaintiff failed to establish that his termination was in violation of
a clear public policy, his action “must fail because establishment of the clarity
element is essential to the survival of his remaining claims”). See also Rowe at ¶ 32.
Thus, we need not decide whether Heigel has established any of the remaining
elements to the public policy exception. Dohme at ¶ 26, citing PDK Laboratories,
Inc. v. United States Drug Enforcement Administration, 360 U.S.App.D.C. 344,
362 F.3d 786 (C.A.D.C.2004) (Roberts, J., concurring in part and concurring in
judgment) (“[I]f it is not necessary to decide more, it is necessary not to decide
more.”).
Accordingly, the trial court correctly granted summary judgment in
favor of MetroHealth.
The assignments of error are overruled.
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
MICHAEL JOHN RYAN, JUDGE
MARY EILEEN KILBANE, P.J., and
EMANUELLA D. GROVES, J., CONCUR