Dohme v. Eurand America, Inc. , 130 Ohio St. 3d 168 ( 2011 )

[Cite as Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609.]
DOHME, APPELLEE, v. EURAND AMERICA, INC., APPELLANT.
[Cite as Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609.]
To satisfy the clarity element of a claim of wrongful discharge in violation of
public policy, a terminated employee must articulate a clear public policy
by citation of specific provisions in the federal or state constitution,
federal or state statutes, administrative rules and regulations, or common
law.
(No. 2010-1621—Submitted June 7, 2011—Decided September 15, 2011.)
APPEAL from the Court of Appeals for Montgomery County, No. 23653,
189 Ohio App.3d 343, 2010-Ohio-3905.
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SYLLABUS OF THE COURT
To satisfy the clarity element of a claim of wrongful discharge in violation of
public policy, a terminated employee must articulate a clear public policy
by citation of specific provisions in the federal or state constitution,
federal or state statutes, administrative rules and regulations, or common
law.
__________________
CUPP, J.
{¶ 1} In this discretionary appeal, we consider the tort claim of wrongful
discharge in violation of public policy. We conclude that the discharged
employee, appellee, Randall J. Dohme, has not established that he meets the
requirements that are necessary to maintain his claim for wrongful discharge in
violation of public policy. Accordingly, we reverse the judgment of the appellate
court.
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I. Facts and Procedure
{¶ 2} Dohme began working for appellant, Eurand America, Inc., in 2001.
He held two positions at Eurand America until the termination of his employment
in March 2003. His first position was as engineering supervisor. In this position,
Dohme was responsible for supervising the performance of engineering
technicians and team leaders. Thereafter, Dohme was named the facilities
administrator, and his job responsibilities included maintaining the plant fire-
protection system. Dohme asserts that although his title or job description never
changed, his duties with Eurand America during the last three months of his
employment consisted of merely tracking the tools and parts used by the
maintenance department.
{¶ 3} Eurand America fired Dohme in 2003. Dohme contends that Eurand
America fired him because he had expressed concerns about the safety of the
Eurand workplace to outside parties. One incident occurred in 2002 when Dohme
discussed with his neighbor, a captain with the local fire department, the design of
a pump, which Dohme believed had started a fire at the plant.
{¶ 4} Dohme asserts that in 2003 he also communicated his workplace-
safety concerns to an insurance adjuster who conducted an on-site evaluation of
Eurand America’s facility to assess the building and its operations. Dohme
contends that this particular communication to an outside party underlies his
claim of wrongful termination in violation of public policy; i.e., he was
terminated because of his “perceived role in an on-site insurance adjuster’s
discovery of certain violations relative to [Eurand America’s] fire alarm system,
which * * * jeopardized workplace safety and placed employees in [an]
unreasonable and dangerous setting.”
{¶ 5} For its part, Eurand America states that it terminated Dohme for
insubordination. Eurand America states that prior to the insurance adjuster’s visit,
it sent an interoffice e-mail to all its employees. This interoffice e-mail explained
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that the facility would be inspected by the adjuster and that only certain
employees of Eurand America, who were identified by Eurand America in that e-
mail, were to have contact with the adjuster. Dohme was not identified in the
interoffice e-mail as one of the employees who would be speaking with the
adjuster.
{¶ 6} Dohme spoke with the adjuster nevertheless. Dohme told the
adjuster that he could not locate an internal monthly report detailing overdue fire-
alarm inspections. Dohme stated to the adjuster that “he might want to find out
what happened with that [fire] inspection [that was removed from the computer
system].” Dohme believed that someone at Eurand America purposefully made
the fire inspection report disappear and someone was “trying to make it look like”
Dohme was not doing his job, even though he had been told to concentrate on the
location and labeling of spare parts. Dohme stated that his interaction with the
adjuster took place despite, as characterized by Dohme, Eurand America’s active
attempts to “prevent employee communication with said adjuster pursuant to an
interoffice email sent by management personnel to all employees, including
[Dohme], days prior to the adjuster’s arrival, which expressly prohibited
communication with said adjuster.” It was Dohme’s plain disregard of this
express directive from Eurand America that resulted in the allegation of
insubordination.
{¶ 7} The trial court granted summary judgment to Eurand America on
Dohme’s claim of wrongful discharge in violation of public policy. The trial
court based its decision on Dohme’s failure to articulate a specific clear public
policy that was jeopardized by his termination.
{¶ 8} The appellate court reversed. Dohme v. Eurand Am., Inc., 170 Ohio
App.3d 593, 2007-Ohio-865, 868 N.E.2d 701, ¶ 39. The court concluded that
because there was a clear public policy generally favoring fire safety in the
workplace, retaliation against employees who raise concerns over fire safety
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violates public policy. The court found irrelevant Dohme’s motive for reporting
the safety concerns. The appellate court also concluded that the public policy
favoring workplace fire safety was jeopardized by Dohme’s discharge, id. at ¶ 24,
contrary to the trial court’s ruling that the issue was moot because Dohme failed
to articulate a specific public policy.
{¶ 9} Eurand America appealed, and we first accepted jurisdiction in
2007. 114 Ohio St.3d 1424, 2007-Ohio-2904, 868 N.E.2d 679. The propositions
of law we accepted addressed the clarity and the jeopardy elements of the tort of
wrongful discharge in violation of public policy. Id.; 119 Ohio St.3d 1471, 2008-
Ohio-4911, 894 N.E.2d 331. However, prior to issuing an opinion in that appeal,
we discovered that there was no final, appealable order by the trial court, which is
a prerequisite for appellate court jurisdiction over an appeal. Consequently, we
vacated the judgment of the court of appeals and remanded the cause to the trial
court for further proceedings. 121 Ohio St.3d 277, 2009-Ohio-506, 903 N.E.2d
1174.
{¶ 10} On remand, a final, appealable order was issued by the trial court,
and the case was again appealed to the Second District Court of Appeals. The
appellate court adopted its prior decision in favor of Dohme in its entirety. 189
Ohio App.3d 343, 2010-Ohio-3905, 938 N.E.2d 417, ¶ 8. Eurand America
appealed, and we again accepted jurisdiction over the same propositions of law.
127 Ohio St.3d 1502, 2011-Ohio-19, 939 N.E.2d 1266.
II. Analysis: Wrongful Discharge in Violation of Public Policy
{¶ 11} In Ohio, the common-law doctrine of employment at will governs
employment relationships. The act of terminating an at-will employee’s
relationship with an employer usually does not give rise to an action for damages.
Collins v. Rizkana (1995), 73 Ohio St.3d 65, 67, 652 N.E.2d 653; Mers v.
Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d 150,
paragraph one of the syllabus. However, if an employee is discharged or
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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
(1994), 70 Ohio St.3d 377, 639 N.E.2d 51, paragraph three of the syllabus;
Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228,
551 N.E.2d 981, paragraph one of the syllabus.
{¶ 12} The elements of a claim of wrongful discharge in violation of
public policy are as follows:
{¶ 13} “ ‘1. That 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).
{¶ 14} “ ‘2. That dismissing employees under circumstances like those
involved in the plaintiff's dismissal would jeopardize the public policy (the
jeopardy element).
{¶ 15} “ ‘3. The plaintiff's dismissal was motivated by conduct related to
the public policy (the causation element).
{¶ 16} “ ‘4. The employer lacked overriding legitimate business
justification for the dismissal (the overriding justification element).’ ” (Emphasis
sic.) Painter, 70 Ohio St.3d at 384, 639 N.E.2d 51, fn. 8, quoting Perritt, The
Future of Wrongful Dismissal Claims: Where Does Employer Self-Interest Lie?
(1989), 58 U.Cin.L.Rev. 397, 398-399. See also Leininger v. Pioneer Natl. Latex,
115 Ohio St.3d 311, 2007-Ohio-4921, 875 N.E.2d 36, ¶ 8-12.
{¶ 17} The clarity and jeopardy elements of the Painter test are issues of
law for the court’s determination; the causation and overriding-justification
elements are questions for determination by the fact-finder. Collins, 73 Ohio
St.3d at 70, 652 N.E.2d 653.
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{¶ 18} In an action claiming wrongful termination, the terminated
employee must assert and prove a clear public policy deriving from the state or
federal constitutions, a statute or administrative regulation, or the common law.
Leininger, 115 Ohio St.3d 311, 2007-Ohio-4921, 875 N.E.2d 36, ¶ 16. See also
id. at ¶ 9, quoting Painter, 70 Ohio St.3d at 384, 639 N.E.2d 51, fn.8, quoting
Perritt, 58 U.Cin.L.Rev. at 398-399; Sutton v. Tomco Machining, Inc., 129 Ohio
St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938, ¶ 11 (identifying R.C. 4123.90 as
the source of Ohio’s public policy against retaliatory employment actions after an
injury on the job). “Clear public policies” have been recognized in a variety of
circumstances. Cf. 2 Perritt, Employee Dismissal Law and Practice (5th Ed.2006)
7-32 to 7-32.8, Section 7.05[A] (listing public policies asserted by plaintiffs in
other jurisdictions to support a claim of wrongful discharge in violation of public
policy, including assisting investigations, permitting Occupational Safety and
Health Administration (“OSHA”) complaints, ensuring public safety, and
eliminating unsafe working conditions). Other states have similarly required that
the clear public policy supporting the wrongful-discharge claim must be plainly
manifested within a state or federal constitution, statute or administrative
regulations, or in the common law and that the plaintiff must identify the specific
expression of public policy. See, e.g., Turner v. Mem. Med. Ctr. (2009), 233
Ill.2d 494, 502-503, 331 Ill.Dec. 548, 911 N.E.2d 369; Gardner v. Loomis
Armored Inc. (1996), 128 Wash.2d 931, 941, 913 P.2d 377; Birthisel v. Tri-Cities
Health Servs. Corp. (1992), 188 W.Va. 371, 377, 424 S.E.2d 606.
{¶ 19} In this case, we conclude, as did the trial court, that Dohme failed
to meet his requisite burden to articulate, by citation of its source, a specific
public policy that Eurand America violated when it discharged him. Dohme’s
complaint simply alleged that Eurand America’s actions “jeopardized workplace
safety.” Eurand America asserted in its motion for summary judgment that
Dohme has not identified a public policy applicable to the incident. Dohme, the
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nonmoving party, then had the reciprocal burden of articulating, by citation of its
source, a specific clear public policy. See Mitseff v. Wheeler (1988), 38 Ohio
St.3d 112, 526 N.E.2d 798, syllabus (“A party seeking summary judgment must
specifically delineate the basis upon which summary judgment is sought in order
to allow the opposing party a meaningful opportunity to respond”).
{¶ 20} In Dohme’s materials opposing summary judgment, he recited
syllabus language from Pytlinski v. Brocar Prods., Inc. (2002), 94 Ohio St.3d 77,
760 N.E.2d 385: “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.” Although Dohme contended that under Pytlinski, no
further articulation, by citation of its source, of a clear public policy was required,
he additionally cited the plurality opinion of Kulch v. Structural Fibers, Inc.
(1997), 78 Ohio St.3d 134, 152, 677 N.E.2d 308, which cites several statutes
outlining an employer’s general duty to provide a safe workplace.
{¶ 21} As the nonmovant, Dohme must show that the issue to be tried is
genuine and may not rely merely upon the pleadings or upon unsupported
allegations. Shaw v. J. Pollock & Co. (1992), 82 Ohio App.3d 656, 659, 612
N.E.2d 1295. 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 plaintiffs both alleged that their
respective employers had violated federal OSHA regulations. Pytlinski, 94 Ohio
St.3d at 78, 760 N.E.2d 385 (the terminated employee alleged that he had
delivered a memorandum to his employer detailing the violations of OSHA
regulations that were occurring at the workplace); Kulch, 78 Ohio St.3d at 135,
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677 N.E.2d 308 (the terminated employee alleged that after his verbal complaints
of the health violations within the workplace were rebuffed by the employer, he
had filed a written report with OSHA, which resulted in an on-site inspection and
OSHA finding several violations of its standards). Thus, Dohme failed to
establish the existence of a clear public policy applicable to him in this matter.
Cf. Lesko v. Riverside Methodist Hosp., 10th Dist. No. 04AP-1130, 2005-Ohio-
3142, ¶ 35.
{¶ 22} Similarly unavailing is Dohme’s reliance on the appellate court’s
sua sponte articulation of a public policy favoring workplace fire safety, which
was supported by citation of various state and federal statutes and regulations.
Dohme v. Eurand Am., Inc., 170 Ohio App.3d 593, 2007-Ohio-865, 868 N.E.2d
701, ¶ 24. As the plaintiff, Dohme has the obligation to specify the sources of law
that support the public policy he relies upon in his claim. Because Dohme did not
back up his assertion of a public policy of workplace safety in his summary-
judgment documents with specific sources of law, he has not articulated the
clarity element with specificity.
{¶ 23} Unless the plaintiff asserts a public policy and identifies federal or
state constitutional provisions, statutes, regulations, or common law that support
the policy, a court may not presume to sua sponte identify the source of that
policy. There may be valid reasons for a plaintiff’s failure to identify and assert a
specific public policy or a specific source for that public policy. An appellate
court may not fill in the blanks on its own motion.
{¶ 24} Based on the foregoing, we conclude that to satisfy the clarity
element of a claim of wrongful discharge in violation of public policy, a
terminated employee must articulate a clear public policy by citation of specific
provisions in the federal or state constitution, federal or state statutes,
administrative rules and regulations, or common law. A general reference to
workplace safety is insufficient to meet the clarity requirement. Dohme has not
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asserted or proven for the purposes of satisfying the clarity element the existence
of a clear Ohio public policy supported by specific citations so as to overcome a
motion for summary judgment.
{¶ 25} Dohme has failed to establish that his discharge was 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, and his action must fail because establishment of the clarify
element is essential to the survival of his remaining claims. Because Dohme’s
claim of wrongful discharge in violation of public policy fails for lack of proof of
a specific clear public policy, Eurand America is entitled to summary judgment in
its favor.
{¶ 26} Although Eurand America has asserted two additional propositions
of law in this appeal, we do not reach those issues, because our determination on
the proposition of law involving the clarity element has fully resolved this matter.
Because the court does not need to reach the issue of whether Eurand America’s
termination of Dohme jeopardized a public policy, we decline to do so. See
Meyer v. United Parcel Serv., Inc., 122 Ohio St.3d 104, 2009-Ohio-2463, 909
N.E.2d 106, ¶ 53; PDK Laboratories, Inc. v. United States Drug Enforcement
Administration (C.A.D.C.2004), 362 F.3d 786, 799 (Roberts, J., concurring in part
and concurring in judgment) (“if it is not necessary to decide more, it is necessary
not to decide more”).
{¶ 27} It is well settled that this court does not issue advisory opinions.
State ex rel. White v. Kilbane Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775
N.E.2d 508, ¶ 18, citing State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections
(2000), 90 Ohio St.3d 238, 242, 736 N.E.2d 893 and Egan v. Natl. Distillers &
Chem. Corp. (1986), 25 Ohio St.3d 176, 25 OBR 243, 495 N.E.2d 904, syllabus.
Accordingly, we dismiss, sua sponte, the propositions of law concerning the
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jeopardy element of the claim of wrongful discharge in violation of public policy
as having been improvidently accepted.
III. Conclusion
{¶ 28} In sum, Dohme has not articulated a clear public policy applicable
to his claim of wrongful discharge in violation of public policy. Because Dohme
failed to establish the clarity element of his claim, the appellate court erred in
reversing the trial court’s grant of summary judgment to Eurand America.
Accordingly, the judgment of the court of appeals is hereby reversed.
Judgment reversed.
O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,
and MCGEE BROWN, JJ., concur.
PFEIFER, J., concurs in judgment only.
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Duwel Law, David M. Duwel, and Todd T. Duwel, for appellee.
Scheuer Mackin Breslin, L.L.C., and Todd D. Penney, for appellant.
Bricker & Eckler, L.L.P., Donald R. Keller, and Vladimir P. Belo, urging
reversal for amicus curiae, Ohio Management Lawyers Association.
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