Hulsmeyer v. Hospice of Southwest Ohio, Inc. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Hulsmeyer v. Hospice of Southwest Ohio, Inc., Slip Opinion No. 2014-Ohio-5511.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-5511
HULSMEYER, APPELLEE AND CROSS-APPELLANT, v. HOSPICE OF SOUTHWEST
OHIO, INC., ET AL., APPELLANTS AND CROSS-APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Hulsmeyer v. Hospice of Southwest Ohio, Inc.,
Slip Opinion No. 2014-Ohio-5511.]
An employee or other person used to perform work or services who reports or
indicates an intention to report suspected abuse or neglect of a long-term-
care-facility or residential-care-facility resident is not required to report
or indicate an intent to report the suspected abuse or neglect to the Ohio
director of health in order to state a claim for retaliatory discharge under
R.C. 3721.24.
(Nos. 2013-1644 and 2013-1766—Submitted—Decided December 23, 2014.)
APPEAL and CROSS-APPEAL from and CERTIFIED by the Court of Appeals for
Hamilton County, No. C-120822, 2013-Ohio-4147.
_________________
SYLLABUS OF THE COURT
An employee or other person used to perform work or services who reports or
indicates an intention to report suspected abuse or neglect of a long-term-
Supreme Court of Ohio
care-facility or residential-care-facility resident is not required to report or
indicate an intent to report the suspected abuse or neglect to the Ohio
director of health in order to state a claim for retaliatory discharge under
R.C. 3721.24.
____________________
KENNEDY, J.
I. Introduction
{¶ 1} In this opinion we address (1) a discretionary appeal by Hospice of
Southwest Ohio, Inc. (“Hospice”), Joseph Killian, Hospice’s chief executive
officer, and Brookdale Senior Living, Inc. (“Brookdale”), (2) a cross-appeal by
Patricia Hulsmeyer, and (3) a certified-conflict case from the First District Court
of Appeals. The certified conflict by the court of appeals is whether “an
employee or another individual used by a person or government entity to perform
work or services [must] 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).” Appellants and cross-appellees
assert the following proposition of law: “R.C. 3721.24 and 3721.22 are related
statutes that should be read together and, when read together, a claim for
retaliation under R.C. 3721.24 requires a person reporting suspected abuse or
neglect to make that report to the Director of Health.”
{¶ 2} On cross-appeal, Hulsmeyer asserts the following proposition of
law: “If R.C. §3721.24 protects only employees or other persons who make
reports of suspected abuse or neglect of a resident to the Director of Health, then
persons who make such reports to an employer, to a family member of the
resident, to law enforcement, or to other appropriate persons or entities must be
permitted to assert claims for retaliation in violation of public policy.”
{¶ 3} Initially, we address an issue regarding the certified question that
was not raised by any party and does not change the outcome in this case but that
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we believe needs to be addressed to ensure the clarity of our holding. The issue
certified as being in conflict contemplates reporting suspected abuse or neglect of
a “nursing home resident.” R.C. 3721.24 discusses reporting abuse of a
“resident,” and “resident” is defined in R.C. 3721.21(F) as including “a resident,
patient, former resident or patient, or deceased resident or patient of a long-term
care facility or a residential care facility.” (Emphasis added.) Accordingly, we
modify the issue certified as follows:
Must an employee or another individual used by a person
or government entity to perform work or services make a report
or indicate an intention to report suspected abuse or neglect of a
long-term-care-facility or a residential-care-facility resident to
the Ohio Director of Health to state a claim for retaliation under
R.C. 3721.24(A)?
{¶ 4} We answer the certified question in the negative and hold that an
employee or other person used to perform work or services who reports or
indicates an intention to report suspected abuse or neglect of a long-term-care-
facility or a residential-care-facility resident is not required to report or indicate an
intent to report the suspected abuse or neglect to the Ohio director of health in
order to state a claim for retaliatory discharge under R.C. 3721.24. Because we
hold that Hulsmeyer has stated a cognizable retaliatory-discharge claim under
R.C. 3721.24, we decline to address her cross-appeal. Accordingly, we affirm the
judgment of the court of appeals.
II. Facts and Procedural History
{¶ 5} Hospice is an organization that provides nursing care for persons
who are terminally ill. Hospice does not have its own facility to provide inpatient
care in southwest Ohio. Instead, it provides nursing care to patients where they
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live. In 2011, Hospice provided care to residents of a residential care facility
owned by Brookdale, including Pat Cinquina, an 81-year-old woman.
{¶ 6} Because Hulsmeyer’s claims were resolved on a motion to dismiss
for failure to state a claim, in reviewing this case, we accept as true all material
allegations in her complaint and construe all reasonable inference in her favor.
Mitchell v. Lawson Milk Co., 40 Ohio St. 3d 190, 192, 532 N.E.2d 753 (1988). In
April 2010, Hospice hired Patricia Hulsmeyer as a registered-nurse case manager.
Eight months later, Hulsmeyer was promoted to team manager. As a team
manager, Hulsmeyer oversaw the care of Hospice patients and monitored the
work of other Hospice nurses and aides. At an October 19, 2011 patient-care
meeting, a Hospice nurse indicated that she had noticed bruising on Cinquina and
that she suspected that abuse or neglect by Brookdale’s staff had caused the
bruises. Rachel Brown, an aide, divulged that she had used her cell phone to take
pictures of bruising on Cinquina’s body. Brown forwarded the pictures to
Hulsmeyer’s phone. A Hospice nurse and staff doctor at the meeting advised
Hulsmeyer that she was obligated to notify Brookdale and Cinquina’s family of
the suspected abuse or neglect. Hulsmeyer immediately called Brookdale and
reported the suspected abuse or neglect to Cindy Spaunagle, Brookdale’s director
of nursing, who indicated that she would examine Cinquina and then contact
Cinquina’s daughter after the examination. Hulsmeyer then informed Isha
Abdullah, the chief clinical officer of Hospice, of the suspected abuse or neglect.
And after she left Abdullah’s office, Hulsmeyer informed Cinquina’s daughter of
the suspected abuse or neglect.
{¶ 7} At a November 2011 meeting at Brookdale to discuss Cinquina’s
care, Brown’s cell phone was passed around so that the photo of Cinquina’s
bruising could be seen. Attending the meeting were Hulsmeyer, Spaunagle,
nurses, Cinquina’s son and daughter, and others.
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{¶ 8} Contrary to the assertion in Hulsmeyer’s complaint, Abdullah
claimed in a deposition that she did not learn of the suspected abuse or neglect
until she received a call from a Brookdale employee. Abdullah claimed that
Hulsmeyer violated Hospice’s company policy by not first reporting the suspected
abuse or neglect to Hospice management.
{¶ 9} On November 30, 2011, Hospice terminated Hulsmeyer. The
termination letter stated that Hospice has a “policy that states, ‘All suspected
abuse, neglect or exploitation of patients and suspected abuse or neglect of
children will be reported immediately to CEO/designee.’ ” The letter gives three
reasons for Hulsmeyer’s discharge: (1) Hulsmeyer permitted photos of Cinquina
to be taken without receiving authorization from a person with power of attorney,
(2) Hulsmeyer notified Brookdale and Cinquina’s daughter of the suspected abuse
or neglect without first notifying Hospice, in violation of Hospice’s policy, and
(3) Hulsmeyer improperly shared the photos at a patient-care conference to
discuss Cinquina’s care, which was attended by staff from both Hospice and
Brookdale and Cinquina’s family, before informing Hospice of the suspected
abuse or neglect.
{¶ 10} On the termination letter, next to the word “Comments” is the
following handwritten statement by Hulsmeyer:
I do not agree with the above statement. I was not
provided guidance by my superiors in regards to the policy
regarding suspected abuse/neglect. I reported the concerns that
were brought to my attention on 10/19 to Isha Abdulla[h], CCO.
I asked her for direction on how to handle the situation. I told her
that social work and the team [doctor] stated I should and was
obligated to notify the facility and the family of the concerns.
She did not discourage me from doing so.
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I did not authorize photos of the patient to be taken any
time.
{¶ 11} Hulsmeyer filed a civil action seeking damages against Hospice,
Joseph Killian, and Brookdale. The complaint alleged that she had a statutory
retaliatory-discharge claim under R.C. 3721.24 and a common-law wrongful-
discharge claim against Hospice and Killian for firing her for reporting suspected
abuse or neglect and against Brookdale for inducing Hospice to fire her. Hospice,
Killian, and Brookdale filed motions to dismiss alleging that Hulsmeyer’s
statutory retaliatory-discharge claim failed to state a claim upon which relief
could be granted. The motions to dismiss alleged that an employee may file a
retaliatory-discharge claim under R.C. 3721.24 only if the employee reported the
suspected abuse or neglect to the Ohio director of health, which Hulsmeyer did
not do. The trial court agreed and granted the motions to dismiss regarding
Hulsmeyer’s retaliatory-discharge claims under R.C. 3721.24. The trial court also
held that Hulsmeyer’s common-law wrongful-discharge claim failed to state a
claim because R.C. 3721.24 was an adequate statutory remedy to protect society’s
interests in encouraging employees to report suspected abuse or neglect.
{¶ 12} Hulsmeyer appealed. The court of appeals reversed the trial
court’s judgment in part and affirmed it in part. The court of appeals reversed the
trial court’s judgment to the extent that it dismissed Hulsmeyer’s statutory
retaliatory-discharge claim. The court of appeals held that the plain language of
R.C. 3721.24(A) does not require an employee or other person to report suspected
abuse or neglect to the Ohio director of health in order to be protected from
retaliation. However, the court of appeals affirmed the trial court judgment to the
extent that it dismissed Hulsmeyer’s common-law wrongful-discharge claim.
{¶ 13} We accepted Hospice’s, Killian’s, and Brookdale’s joint
discretionary appeal and Hulsmeyer’s cross-appeal. 138 Ohio St. 3d 1412, 2014-
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Ohio-566, 3 N.E.3d 1215. We also determined that a conflict exists and
consolidated the cases. Id.
III. Analysis
{¶ 14} R.C. 3721.24 provides a retaliatory-discharge cause of action for
employees who are terminated for reporting or indicating an intention to report
suspected abuse or neglect of long-term-care-facility or residential-care-facility
residents. The question is whether the report of suspected abuse or neglect must
be made to the director of health in order to state a cognizable retaliatory-
discharge claim.
{¶ 15} Hospice, Killian, and Brookdale (hereinafter referred to
collectively as “defendants”) argue that R.C. 3721.24 is ambiguous because it
does not indicate to whom an employee must report or intend to report suspected
abuse or neglect. Therefore, defendants argue, we should interpret R.C. 3721.24
by reading it in pari materia with R.C. 3721.22 and hold that an employee must
report or indicate an intention to report the suspected abuse or neglect to the
director of health in order to have a cognizable retaliatory-discharge claim under
R.C. 3721.24.
{¶ 16} Hulsmeyer counters that there is no need to interpret R.C. 3721.24
because its plain language does not limit to whom a report of suspected abuse or
neglect must be made. Alternatively, in her cross-appeal, Hulsmeyer argues that
if the court holds that an employee has a cognizable retaliatory-discharge claim
under R.C. 3721.24 only if the employee reports or intends to report the suspected
abuse or neglect to the Ohio director of health, then the court should recognize a
common-law wrongful-discharge cause of action if the employee suffers
retaliation for making the report or intending to make the report to someone other
than the director of health.
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A. R.C. 3721.22 and 3721.24
{¶ 17} In 1990, the General Assembly passed Am.Sub.H.B. No. 822,
which enacted R.C. 3721.22 and 3721.24. Am.Sub.H.B. 822, 143 Ohio Laws,
Part IV, 6652, 6689, 6692.
{¶ 18} We begin our analysis by examining R.C. 3721.24, the provision in
question, and R.C. 3721.22, the provision that defendants argue is pivotal in
construing R.C. 3721.24.
{¶ 19} R.C. 3721.22 states:
(A) No licensed health professional who knows or
suspects that a resident has been abused or neglected, or that a
resident’s property has been misappropriated, by any individual
used by a long-term care facility or residential care facility to
provide services to residents, shall fail to report that knowledge
or suspicion to the director of health.
(B) Any person, including a resident, who knows or
suspects that a resident has been abused or neglected, or that a
resident’s property has been misappropriated, by any individual
used by a long-term care facility or residential care facility to
provide services to residents, may report that knowledge or
suspicion to the director of health.
(C) Any person who in good faith reports suspected
abuse, neglect, or misappropriation to the director of health,
provides information during an investigation of suspected abuse,
neglect, or misappropriation conducted by the director, or
participates in a hearing conducted under section 3721.23 of the
Revised Code is not subject to criminal prosecution, liable in
damages in a tort or other civil action, or subject to professional
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disciplinary action because of injury or loss to person or property
allegedly arising from the making of the report, provision of
information, or participation in the hearing.
(D) If the director has reason to believe that a violation of
division (A) of this section has occurred, the director may report
the suspected violation to the appropriate professional licensing
authority and to the attorney general, county prosecutor, or other
appropriate law enforcement official.
(E) No person shall knowingly make a false allegation of
abuse or neglect of a resident or misappropriation of a resident’s
property, or knowingly swear or affirm the truth of a false
allegation, when the allegation is made for the purpose of
incriminating another.
(Emphasis added.)
{¶ 20} R.C. 3721.24 states:
(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 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
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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.
(B) No person or government entity shall retaliate against
a resident who reports suspected abuse, neglect, or
misappropriation; indicates an intention to make such a report;
provides information during an investigation of alleged abuse,
neglect, or misappropriation conducted by the director; or
participates in a hearing under section 3721.23 of the Revised
Code or in any other administrative or judicial proceeding
pertaining to the suspected abuse, neglect, or misappropriation; or
on whose behalf any other person or government entity takes any
of those actions. For purposes of this division, retaliatory actions
include abuse, verbal threats or other harsh language, change of
room assignment, withholding of services, failure to provide care
in a timely manner, and any other action intended to retaliate
against the resident.
(C) Any person has a cause of action against a person or
government entity for harm resulting from violation of division
(A) or (B) of this section. If it finds that a violation has occurred,
the court may award damages and order injunctive relief. The
court may award court costs and reasonable attorney’s fees to the
prevailing party.
(Emphasis added.)
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B. Statutory Construction
{¶ 21} The goal of statutory construction is to ascertain and give effect to
the intent of the General Assembly. State v. Hairston, 101 Ohio St. 3d 308, 2004-
Ohio-969, 804 N.E.2d 471, ¶ 11, citing Slingluff v. Weaver, 66 Ohio St. 621, 64
N.E. 574 (1902), paragraph one of the syllabus. In determining the intent of the
General Assembly, “we must first look to the statutory language and the purpose
to be accomplished.” Sutton v. Tomco Machining, Inc., 129 Ohio St. 3d 153,
2011-Ohio-2723, 950 N.E.2d 938, ¶ 12.
{¶ 22} When statutory language is ambiguous, the rules of statutory
interpretation must be applied to determine the intent of the legislature. Wingate
v. Hordge, 60 Ohio St. 2d 55, 58, 396 N.E.2d 770 (1979). “The in pari materia
rule of construction may be used in interpreting statutes where some doubt or
ambiguity exists.” State ex rel. Herman v. Klopfleisch, 72 Ohio St. 3d 581, 585,
651 N.E.2d 995 (1995), citing State Farm Mut. Auto. Ins. Co. v. Webb, 54 Ohio
St.3d 61, 63-64, 562 N.E.2d 132 (1990); State ex rel. Celebrezze v. Allen Cty. Bd.
of Commrs., 32 Ohio St. 3d 24, 27-28, 512 N.E.2d 332 (1987). “ ‘In reading
statutes in pari materia and construing them together, this court must give a
reasonable construction that provides the proper effect to each statute.’ ” Blair v.
Sugarcreek Twp. Bd. of Trustees, 132 Ohio St. 3d 151, 2012-Ohio-2165, 970
N.E.2d 884, ¶ 18, quoting State ex rel. Cordray v. Midway Motor Sales, Inc., 122
Ohio St. 3d 234, 2009-Ohio-2610, 910 N.E.2d 432, ¶ 25, citing Maxfield v.
Brooks, 110 Ohio St. 566, 144 N.E. 725 (1924), paragraph two of the syllabus.
{¶ 23} However, “[w]hen the statutory language is plain and
unambiguous, and conveys a clear and definite meaning, we must rely on what
the General Assembly has said.” Jones v. Action Coupling & Equip., Inc., 98
Ohio St. 3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, citing Symmes Twp. Bd.
of Trustees v. Smyth, 87 Ohio St. 3d 549, 553, 721 N.E.2d 1057 (2000). The court
must give effect to the words used, making neither additions nor deletions from
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words chosen by the General Assembly. Columbia Gas Transm. Corp. v. Levin,
117 Ohio St. 3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 19, citing Cline v. Ohio
Bur. of Motor Vehicles, 61 Ohio St. 3d 93, 97, 573 N.E.2d 77 (1991).
C. R.C. 3721.24 Is Not Ambiguous
{¶ 24} Defendants argue that R.C. 3721.24 is ambiguous because it does
not indicate to whom a report of suspected abuse or neglect must be made and
that when R.C. 3721.24 is construed in pari materia with R.C. 3721.22, it is clear
that in order to file a retaliatory-discharge claim, a report of suspected abuse or
neglect must be made to the director of health. Defendants cite Sheet Metal
Workers’ Internatl. Assn., Local Union No. 33 v. Gene’s Refrig., Heating & Air
Conditioning, Inc., 122 Ohio St. 3d 248, 2009-Ohio-2747, 910 N.E.2d 444, in
support of its argument that R.C. 3721.24 is ambiguous.
{¶ 25} In Sheet Metal Workers’ Internatl. Assn., the issue was whether
R.C. 4115.05 requires paying the prevailing wage to an employee “whose work is
not performed on the actual project site but who works on materials that will be
used in or in connection with the project.” Id. at ¶ 25. The court found R.C.
4115.05 to be ambiguous on this issue because “[t]here is no reference in R.C.
4115.05 to where the work must be performed, i.e. whether it must be directly on
the project cite or be performed off-site.” Id. at ¶ 29. The court construed “the
language of the entire prevailing-wage statutory scheme along with the related
regulations” in concluding that the General Assembly did not intend for
employers to pay the prevailing wage to persons who do not work on site. Id. at
¶ 38. We find Sheet Metal Workers’ Internatl. Assn. to be distinguishable.
{¶ 26} “[T]he General Assembly, in enacting a statute, is assumed to have
been aware of other statutory provisions concerning the subject matter of the
enactment even if they are found in separate sections of the Code.” Meeks v.
Papadopulos, 62 Ohio St. 2d 187, 191-192, 404 N.E.2d 159 (1980), citing State ex
rel. Darby v. Hadaway, 113 Ohio St. 658-659, 150 N.E. 36 (1925). And the
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General Assembly’s use of particular language to modify one part of a statute but
not another part demonstrates that the General Assembly knows how to make that
modification and has chosen not to make that modification in the latter part of the
statute. See Maggiore v. Kovach, 101 Ohio St. 3d 184, 2004-Ohio-722, 803
N.E.2d 790, ¶ 27; In re Election of Member of Rock Hill Local School Dist. Bd. of
Edn., 76 Ohio St. 3d 601, 608, 669 N.E.2d 1116 (1996). Finally, we have held
that if the General Assembly could have used a particular word in a statute but did
not, we will not add that word by judicial fiat. See In re Application of Columbus
S. Power Co., 138 Ohio St. 3d 448, 2014-Ohio-462, 8 N.E.3d 863, ¶ 26 (“The
court must give effect to the words used, making neither additions nor deletions
from words chosen by the General Assembly. * * * Certainly, had the General
Assembly intended to require that electric-distribution utilities prove that carrying
costs were ‘necessary’ before they could be recovered, it would have chosen
words to that effect”).
{¶ 27} R.C. 3721.22(A) requires licensed health professionals to report
abuse “to the director of health.” That same requirement of reporting to the
director of health is not found in R.C. 3721.24. Because the General Assembly
enacted R.C. 3721.22 and 3721.24 in the same bill, we presume that the absence
of any requirement in R.C. 3721.24 that a report, or intent to report, suspected
abuse or neglect must be made to the director of health was intentional. If the
General Assembly had intended to afford protection to only those employees who
reported, or indicated an intention to report, suspected abuse or neglect to the
director of health, it could have done so by inserting the words “to the director of
health” after the word “report” in R.C. 3721.24(A), or by incorporating the
requirement from R.C. 3721.22. It did neither. And we will not add those words
by judicial fiat. See Clark v. Scarpelli, 91 Ohio St. 3d 271, 291, 744 N.E.2d
719 (2001) (Cook, J., dissenting) (“the role of a court is not to decide what the
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law should say; rather, the role of this court is to interpret what the law says as it
has been written by the General Assembly” [emphasis sic]).
{¶ 28} Furthermore, the different reporting requirements of R.C. 3721.22
and 3721.24 are consistent with their different purposes. In addition to providing
immunity from both civil lawsuits and criminal prosecution to persons who report
suspected abuse or neglect, R.C. 3721.22 addresses the obligations of reporting
suspected abuse or neglect. It explicitly requires that licensed health professionals
report suspected abuse or neglect “to the director of health.” R.C. 3721.22(A). It
also provides that “[a]ny person, including a resident” “may” report suspected
abuse or neglect “to the director of health.” R.C. 3721.22(B). The purpose of
requiring that such reports be made to the director of health is that the director of
health has the authority and obligation to investigate, make findings, and report
findings of abuse or neglect to law enforcement. See R.C. 3721.23.
{¶ 29} In contrast, the purpose of R.C. 3721.24 is to protect persons from
retaliatory discharge for reporting suspected abuse or neglect of long-term-care-
facility and residential-care-facility residents. See generally Dolan v. St. Mary’s
Mem. Home, 153 Ohio App. 3d 441, 2003-Ohio-3383, 794 N.E.2d 716 (1st Dist.),
¶ 17 (the purpose of R.C. Chapter 3721 is to protect “the rights of nursing-home
residents and of others who would report violations of those rights” [emphasis
added]). Providing employees broader reporting options than those found in R.C.
3721.22 is consistent with the purpose of preventing retaliation against
employees. Employees may be more likely to report suspected abuse or neglect
to someone other than the director of health, such as a resident’s family member
or a coworker.
IV. Conclusion
{¶ 30} The plain language of R.C. 3721.24 protects employees or other
persons used to perform work or services from retaliation for reporting or
indicating an intention to report suspected abuse or neglect of residents of long-
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term care facilities or residential care facilities and does not require that the report
be made to the director of health. Therefore, we answer the certified question in
the negative and hold that an employee or other person used to perform work or
services who reports or indicates an intention to report suspected abuse or neglect
of a long-term-care-facility or residential-care-facility resident is not required to
report or indicate an intent to report the suspected abuse or neglect to the Ohio
director of health in order to state a claim for retaliatory discharge under R.C.
3721.24.
{¶ 31} In this case, Hulsmeyer’s reporting the suspected abuse or neglect
to Brookdale and to the resident’s children triggered the protection of R.C.
3721.24. Therefore, the court of appeals did not err in reversing the portion of the
trial court’s judgment that dismissed Hulsmeyer’s claim for retaliation under R.C.
3721.24. Because Hulsmeyer has a cognizable retaliatory-discharge claim under
R.C. 3721.24, we decline to consider her cross-appeal asserting that she has a
common-law wrongful-discharge claim.
{¶ 32} Accordingly, we affirm the judgment of the court of appeals and
remand the cause to the trial court with instructions to reinstate Hulsmeyer’s
retaliatory-discharge claim under R.C. 3721.24. However, although we have
determined that the “report” mentioned in R.C. 3721.24 does not need to be a
report to the director of health to trigger protection from retaliation, we make no
judgment on the merits of Hulsmeyer’s claim. We therefore remand this cause to
the trial court for further proceedings consistent with this opinion.
Judgment affirmed
and cause remanded.
O’CONNOR, C.J., and YARBROUGH, LANZINGER, and O’NEILL, JJ., concur.
PFEIFER, J., concurs separately.
FRENCH, J., dissents.
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STEPHEN A. YARBROUGH, J., of the Sixth Appellate District, sitting for
O’DONNELL, J.
___________________________
PFEIFER, J., concurring.
{¶ 33} I concur in the judgment, syllabus, and almost every other part of
the majority opinion. I agree with Justice French, however, that Patricia
Hulsmeyer should be allowed to assert a common-law claim for wrongful
discharge in violation of public policy. See Sutton v. Tomco Machining, Inc., 129
Ohio St. 3d 153, 2011-Ohio-2723, 950 N.E.2d 938, ¶ 7-9.
___________________________
FRENCH, J., dissenting.
{¶ 34} Because I would answer the certified-conflict question in the
affirmative, I respectfully dissent.
{¶ 35} In my view, a statutory cause of action under R.C. 3721.24 arises
only after an employee or other person used to perform work or services reports
or indicates an intention to report suspected abuse or neglect of a resident to the
Ohio director of health. Nevertheless, I would adopt the proposition of law raised
by Patricia Hulsmeyer’s cross-appeal and hold that an employee who reports or
indicates an intention to report suspected abuse or neglect of a resident not to the
director of health but to another appropriate person, such as the reporter’s
employer, the long-term care facility or residential care facility, the resident’s
family, or law enforcement, may assert a common-law claim for wrongful
discharge in violation of public policy.
{¶ 36} The General Assembly enacted R.C. 3721.22 to 3721.26 together,
as part of a comprehensive scheme governing reports of abuse and neglect of
long-term-care-facility or residential-care-facility residents. Am.Sub.H.B. No.
822, 143 Ohio Laws, Part IV, 6652, 6689-6694. As particularly relevant here,
R.C. 3721.22, 3721.23, and 3721.24 are interrelated.
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{¶ 37} R.C. 3721.22(A) requires a “licensed health professional” to report
known or suspected abuse or neglect of a resident to the director of health,
whereas R.C. 3721.22(B) permits any other person, including a resident, to report
known or suspected abuse or neglect to the director of health. The director of
health is, in turn, required to “receive, review, and investigate allegations of abuse
or neglect of a resident” and to make findings regarding those allegations. R.C.
3721.23(A). Any person who makes a good-faith report to the director of health
under R.C. 3721.22, provides information during the director’s investigation
under R.C. 3721.23 or participates in a hearing conducted by the director under
R.C. 3721.23 is immune from criminal prosecution, damages in a civil action, and
professional discipline. R.C. 3721.22(C).
{¶ 38} R.C. 3721.24 provides additional protection for a person who
reports suspected abuse or neglect of a resident. R.C. 3721.24(A) prohibits
retaliation against an employee or other person used to perform work or services
who makes a good-faith report of suspected abuse or neglect of a resident,
indicates an intention to make such a report, provides information during an
investigation conducted by the director of health under R.C. 3721.23 or
participates in a hearing under R.C. 3721.23 or other administrative or judicial
proceedings pertaining to the suspected abuse or neglect. R.C. 3721.24(C)
establishes a cause of action for harm resulting from prohibited retaliation.
{¶ 39} The crux of this case lies in R.C. 3721.24’s silence as to the person
to whom a person must report or indicate an intention to report suspected abuse or
neglect in order to claim statutory protection from retaliation. Despite the
statute’s silence on that issue, the majority concludes that R.C. 3721.24 is
unambiguous and holds that a plaintiff need not report or indicate an intention to
report suspected abuse or neglect to the director of health in order to have a
cognizable claim under R.C. 3721.24. In contrast, I conclude that the statute is
ambiguous because the silence in R.C. 3721.24(A) regarding the recipient of a
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Supreme Court of Ohio
report renders the statute subject to varying interpretations. Sheet Metal Workers’
Internatl. Assn., Local Union No. 33 v. Gene’s Refrigeration, Heating & Air
Conditioning, Inc., 122 Ohio St. 3d 248, 2009-Ohio-2747, 910 N.E.2d 444, ¶ 29
(finding ambiguity because R.C. 4115.05 did not specify whether work had to be
performed on the construction-project site to be subject to prevailing-wage
requirements).
{¶ 40} When a statute is ambiguous, we look to the statutory language,
the circumstances in which the statute was enacted, legislative history, and the
consequences of a particular construction to determine the legislature’s intent. Id.
We also construe statutes pertaining to the same subject matter in pari materia “to
discover and carry out legislative intent.” Id. at ¶ 38, citing State ex rel. Ellis
Super Valu, Inc. v. Indus. Comm., 115 Ohio St. 3d 224, 2007-Ohio-4920, 874
N.E.2d 780, ¶ 13. Accordingly, we should read R.C. 3721.24 in pari materia with
R.C. 3721.22 and 3721.23, which were enacted at the same time and relate to the
same subject matter. See Sheet Metal Workers’ Internatl. Assn. at ¶ 33-38
(reading R.C. 4115.05 in the context of the entire prevailing-wage statutory
scheme and related regulations).
{¶ 41} R.C. 3721.22 authorizes, and in some cases mandates, reports of
actual or suspected abuse or neglect of residents to the director of health, and R.C.
3721.23 requires the director of health to receive and act upon those reports. R.C.
3721.24 protects from retaliation a person who reports suspected abuse or neglect
or who participates in the resultant investigatory and/or adjudicatory process. The
Revised Code does not provide for reports of abuse or neglect to recipients other
than the director of health. Moreover, the immunity provided by R.C. 3721.22(C)
and the prohibition against retaliation established by R.C. 3721.24 arise not only
from reports of abuse or neglect, but also from participation in the investigatory
process that, pursuant to R.C. 3721.23, results from reports to the director of
health. Reading these statutes together, I conclude that a statutory claim under
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January Term, 2014
R.C. 3721.24 requires a report, or an indication of intent to report, to the director
of health. See Arsham-Brenner v. Grande Point Health Care Community, 8th
Dist. Cuyahoga No. 74835, 2000 WL 968790, *6 (July 13, 2000).
{¶ 42} The majority’s reading of R.C. 3721.24, in isolation from the
related provisions, suggests that there is no limitation whatsoever on the recipient
of a report of suspected abuse or neglect. Under the majority’s reading, an
employee’s statutory entitlement to protection from retaliation would extend far
beyond the employee’s reporting of suspected abuse to obvious and appropriate
recipients, like the employee’s supervisor or the resident’s family. For example,
an employee would be entitled to protection upon casually relating suspicions of
abuse or neglect to the employee’s spouse, a neighbor, a news station or an online
message board. In light of the overlap between R.C. 3721.22 through 3721.24,
the director of health’s statutory responsibility for investigating allegations of
resident abuse or neglect, and the silence in R.C. 3721.24, I cannot agree that the
General Assembly intended such a broad application.
{¶ 43} Despite my conclusion regarding R.C. 3721.24, I would hold that
Hulsmeyer’s complaint stated a cognizable common-law claim for wrongful
discharge in violation of public policy. A public-policy wrongful-discharge claim
requires proof of the following elements: (1) a clear public policy is manifested in
a state or federal constitution, in a statute or administrative regulation, or in the
common law, (2) dismissing the employee under circumstances like the plaintiff’s
would jeopardize the public policy, (3) conduct related to the public policy
motivated the employer to dismiss the plaintiff, and (4) the employer lacked an
overriding legitimate business justification for the dismissal. Collins v. Rizkana,
73 Ohio St. 3d 65, 69-70, 652 N.E.2d 653 (1995), citing Painter v. Graley, 70
Ohio St. 3d 377, 384, 639 N.E.2d 51 (1994), fn. 8. The first two elements—the
clarity and jeopardy elements—are questions of law for the court. Id. at 70.
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Supreme Court of Ohio
{¶ 44} Cross-appellees, Brookdale Senior Living, Inc., Hospice of
Southwest Ohio, Inc., and Joseph Killian, do not dispute the existence of clear
public policy encouraging the reporting of abuse and neglect of long-term-care-
facility or residential-care-facility residents and protecting those who make such
reports. R.C. 3721.22 and 3721.24 express that clear policy. The General
Assembly has also “enunciated a public policy in favor of special protection of
nursing-home residents through its passage of the Ohio Nursing Home Patients’
Bill of Rights, R.C. 3721.10 et seq.” Hayes v. Oakridge Home, 122 Ohio St. 3d
63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 51 (Pfeifer, J., dissenting). As relevant
here, a resident is entitled to have any significant change in the resident’s health
status promptly reported to the resident’s sponsor. R.C. 3721.13(A)(32). A
“sponsor” is “an adult relative, friend, or guardian of a resident who has an
interest or responsibility in the resident’s welfare.” R.C. 3721.10(D).
{¶ 45} In opposition to Hulsmeyer’s cross-appeal, cross-appellees argue
only that the absence of a common-law claim does not jeopardize the public
policy encouraging the reporting of suspected resident abuse and neglect. First,
consistent with their arguments to the trial court and the court of appeals, they
argue that R.C. 3721.24 provides a sufficient and appropriate remedy to vindicate
the public policy. The court of appeals agreed and held that Hulsmeyer was not
entitled to maintain a public-policy wrongful-discharge claim, because she had a
remedy by way of a statutory claim under R.C. 3721.24. 2013-Ohio-4147, 998
N.E.2d 517, ¶ 31 (1st Dist.). While an applicable statutory remedy may justify a
refusal to recognize a public-policy wrongful-discharge claim, see Dolan v. St.
Mary’s Mem. Home, 153 Ohio App. 3d 441, 2003-Ohio-3383, 794 N.E.2d 716 (1st
Dist.), I conclude that R.C. 3721.24 does not provide Hulsmeyer an adequate
remedy, because it does not apply to employees, like Hulsmeyer, who report
suspicions of resident abuse or neglect to someone other than the director of
health.
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January Term, 2014
{¶ 46} Cross-appellees also argue, for the first time to this court, that the
public policy encouraging reports of abuse and neglect is not jeopardized in the
absence of a public-policy wrongful-discharge claim, because, even without a
claim under R.C. 3721.24, Hulsmeyer could have reported any reasonable
suspicion of abuse or neglect to her employer pursuant to Ohio’s Whistleblower
Statute, R.C. 4113.52. Review of Hulsmeyer’s complaint, however, demonstrates
the inapplicability of that statute.
{¶ 47} R.C. 4113.52 applies when
an employee becomes aware in the course of the employee’s
employment of a violation of any state or federal statute or any
ordinance or regulation of a political subdivision that the
employee’s employer has authority to correct, and the employee
reasonably believes that the violation is a criminal offense that is
likely to cause an imminent risk of physical harm to persons or a
hazard to public health or safety, a felony, or an improper
solicitation for a contribution.
R.C. 4113.52(A). But there is no indication in Hulsmeyer’s complaint that she
suspected a criminal offense that was likely to cause an imminent risk of physical
harm, a felony or an improper solicitation for a contribution that her employer had
authority to remedy. Rather, Hulsmeyer alleged that she believed the likely cause
of the resident’s bruising was an excessively tightened bag from a Foley catheter.
Furthermore, R.C. 4113.52(D) protects from retaliation an employee who has
made a report to her employer or to a prosecuting or regulatory authority, whereas
Hulsmeyer alleges that Hospice terminated her for reporting the suspected abuse
to Pat Cinquina’s family and for allegedly not informing Hospice. Accordingly,
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Supreme Court of Ohio
the facts as alleged in Hulsmeyer’s complaint do not demonstrate the availability
of whistle-blower protection under R.C. 4113.52.
{¶ 48} As the trial court decided this case on Civ.R. 12(B)(6) motions to
dismiss, the question whether retaliation actually occurred is not ripe for
determination, but if Hulsmeyer’s allegations of retaliation are true, permitting the
alleged retaliation for Hulsmeyer’s reporting of suspected abuse or neglect would
be contrary to the public policy underlying R.C. 3721.22 and 3721.24, even
without a report to the director of health. See Sutton v. Tomco Machining, Inc.,
129 Ohio St. 3d 153, 2011-Ohio-2723, 950 N.E.2d 938, ¶ 25-27 (retaliatory
dismissal of an employee who is injured on the job, but who has not yet instituted
a workers’ compensation claim, jeopardizes public policy against retaliation in
R.C. 4123.90, even though R.C. 4123.90 does not provide a statutory remedy in
that situation). And terminating Hulsmeyer for informing Cinquina’s family of
the suspected abuse would be contrary to the requirement that a resident’s sponsor
be promptly informed of any change in the resident’s medical status and would
jeopardize the public policy evident in R.C. 3721.13. For these reasons, I would
reverse the court of appeals’ judgment and remand the cause to the trial court for
reinstatement of Hulsmeyer’s common-law wrongful-discharge claim.
Accordingly, I respectfully dissent.
___________________________
Robert A. Klingler Co., L.P.A., Robert A. Klingler, and Brian J. Butler,
for appellee and cross-appellant.
Tucker Ellis, L.L.P., Susan M. Audey, and Victoria L. Vance, for
appellant and cross-appellee Brookdale Senior Living, Inc.
Dinsmore & Shohl, L.L.P., Michael W. Hawkins, and Faith C. Whittaker,
for appellants and cross-appellees Hospice of Southwest Ohio, Inc., and Joseph
Killian.
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January Term, 2014
The Gittes Law Group, Fredrick M. Gittes, and Jeffrey P. Vardaro, urging
affirmance for amicus curiae Ohio Employment Lawyers Association.
Ohio Disability Rights and Law Center, Inc., Andrew Brennan, Kristen
Henry, and Michael Kirkman, urging affirmance for amici curiae Disability
Rights Ohio, AARP, National Senior Citizens Law Center, National Law Health
Program, and National Disability Rights Network.
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