Hall v. Kosei St. Marys Corp.

[Cite as Hall v. Kosei St. Marys Corp., 2023-Ohio-2021.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
RITA M. HALL,
CASE NO. 2-22-26
PLAINTIFF-APPELLANT,
v.
KOSEI ST. MARYS CORPORATION, OPINION
DEFENDANT-APPELLEE.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2022-CV-47
Judgment Affirmed
Date of Decision: June 20, 2023
APPEARANCES:
Royce A. Link for Appellant
Jeffrey P. Squire and Zach G. Ferrall for Appellee
Case No. 2-22-26
WILLAMOWSKI, J.
{¶1} Plaintiff-appellant Rita M. Hall (“Hall”) appeals the judgment of the
Auglaize County Court of Common Pleas, alleging that the trial court erred by
granting summary judgment in favor of Defendant-Appellee Kosei St. Marys
Corporation (“KSM”). For the reasons set forth below, the judgment of the trial
court is affirmed.
Facts and Procedural History
{¶2} Hall was an at-will employee at KSM for six years and worked as a line
supervisor. In June of 2020, she publicly shared an image on Facebook that
consisted of two juxtaposed pictures. In the top picture, a number of monkeys are
located on and around a car. In the bottom picture, a number of African Americans
are located on and around a car.1 At least three of Hall’s subordinates or coworkers
raised complaints about this post with the associate relations department at KSM.
Hall was subsequently terminated on June 24, 2020. On March 21, 2022, Hall filed
a complaint with the trial court, raising claims of wrongful termination in violation
of public policy and retaliation. On September 22, 2022, KSM filed a motion for
summary judgment. On November 3, 2022, the trial court granted summary
judgment in favor of KSM.
1
The record includes what appears to be a black and white copy of a printout of this meme. While this is a
low-resolution image, Hall was asked, during her deposition, whether she “den[ied] that if you look at that
photo you can tell they’re all African American?” (Hall Depo. Tr. 24). She replied, “In the picture that I
had on my Facebook was half this size, you could not tell. They were all dressed in black. You could not
tell if they were black, white, Hispanic, whatever.” (Id.). She later indicated that, when she shared this
meme, she “didn’t know they were all African American.” (Id. at 26).
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{¶3} Hall filed her notice of appeal on December 5, 2022. On appeal, she
raises the following four assignments of error:
First Assignment of Error
The trial court erred by granting summary judgment to Kosei St.
Marys Corporation on Rita Hall’s claim for retaliation for
engaging in protected conduct.
Second Assignment of Error
The trial court erred in finding that Rita Hall has not set forth
any evidence to show any causal connections between her
reporting harassment of herself or others by ‘JJ’ and her
termination, and that her termination was based upon her racist
Facebook post.
Third Assignment of Error
The trial court erred by granting summary judgment to Kosei St.
Marys Corporation on Rita Hall’s claim for wrongful termination
in violation of public policy.
Fourth Assignment of Error
The trial court erred by finding that it is undisputed that Rita Hall
posted a racially inflammatory meme comparing black lives
matter protestors, primarily African American, to monkeys, and
that Kosei St. Marys Corporation had an overriding legitimate
business justification for the dismissal.
After setting forth the general legal standard governing motions for summary
judgment, we will consider the first and second assignments of error together in one
analysis before proceeding to the third and fourth assignments of error.
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Legal Standard for Summary Judgment
{¶4} “Appellate courts consider a summary judgment order under a de novo
standard of review.” Schmidt Machine Company v. Swetland, 3d Dist. Wyandot
No. 16-20-07, 2021-Ohio-1236, ¶ 23. Under Civ.R. 56,
[s]ummary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely
filed in the action, show that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law *
* *. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation,
that reasonable minds can come to but one conclusion and that
conclusion is adverse to the party against whom the motion for
summary judgment is made, that party being entitled to have the
evidence or stipulation construed most strongly in the party’s favor.
Civ.R. 56(C). Accordingly, summary judgment is to be granted
only when it is clear ‘(1) that there is no genuine issue as to any
material fact; (2) that the moving party is entitled to judgment as a
matter of law; and (3) that reasonable minds can come to but one
conclusion, and that conclusion is adverse to the party against whom
the motion for summary judgment is made, who is entitled to have the
evidence construed most strongly in his favor.’
Beair v. Management & Training Corp., 3d Dist. Marion No. 9-21-07, 2021-Ohio-
4110, ¶ 15, quoting Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66,
375 N.E.2d 46, 47 (1978).
{¶5} “Initially, ‘[t]he party moving for summary judgment bears the burden
of showing that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law.’” Washburn v. OhioHealth Corporation, 2022-Ohio-
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4453, 204 N.E.3d 45, ¶ 13 (3d Dist.), quoting Zivich v. Mentor Soccer Club, Inc.,
82 Ohio St.3d 367, 370, 1998-Ohio-389, 696 N.E.2d 201, 204 (1998). “In doing so,
the moving party is not required to produce any affirmative evidence, but must
identify those portions of the record which affirmatively support his argument.”
Neal v. Treglia, 2019-Ohio-3609, 144 N.E.3d 1045, ¶ 12 (3d Dist.), quoting Carnes
v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13.
{¶6} If the moving party carries this initial burden, “[t]he burden then shifts
to the party opposing the summary judgment.” Bates Recycling, Inc. v. Conaway,
2018-Ohio-5056, 126 N.E.3d 341, ¶ 11 (3d Dist.), quoting Middleton v. Holbrook,
3d Dist. Marion No. 9-15-47, 2016-Ohio-3387, ¶ 8. “In order to defeat summary
judgment, the nonmoving party may not rely on mere denials but ‘must set forth
specific facts showing that there is a genuine issue for trial.’” Byrd v. Smith, 110
Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10, quoting Civ.R. 56(E).
{¶7} “[B]ecause summary judgment is a procedural device to terminate
litigation, it must be awarded with caution.” Williams v. ALPLA, Inc., 2017-Ohio-
4217, 92 N.E.3d 256, ¶ 6 (3d Dist.), quoting Murphy v. Reynoldsburg, 65 Ohio St.3d
356, 358-359, 1992-Ohio-95, 604 N.E.2d 138 (1992). “The court must thus
construe all evidence and resolve all doubts in favor of the non-moving party * *
*.” Webster v. Shaw, 2016-Ohio-1484, 63 N.E.3d 677, ¶ 8 (3d Dist.).
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First and Second Assignments of Error
{¶8} Hall argues that the trial court erred in concluding that she failed to set
forth a prima facie case for her retaliation claim.
Legal Standard
{¶9} R.C. 4112.02(I) states that it is “an unlawful discriminatory practice *
* * [f]or any person to discriminate in any manner against any other person because
that person has opposed any unlawful discriminatory practice defined in this section
or because that person has made a charge, testified, assisted, or participated in any
manner in any investigation, proceeding, or hearing under sections 4112.01 to
4112.07 of the Revised Code.” R.C. 4112.02(I).
To establish a prima facie case of retaliation, a claimant must prove
that ‘(1) she engaged in a protected activity, (2) the defending party
was aware that the claimant had engaged in that activity, (3) the
defending party took an adverse employment action against the
employee, and (4) there is a causal connection between the protected
activity and adverse action.’
Hall v. Crawford County Job and Family Services, 2022-Ohio-1358, 188 N.E.3d
1138, ¶ 30 (3d Dist.), quoting Stachura v. Toledo, 6th Dist. Lucas No. L-19-1269,
2022-Ohio-345, ¶ 84, quoting Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-
Ohio-6442, 879 N.E.2d 174, ¶ 13.
{¶10} “Due to the similarities in Title VII and R.C. Chapter 4112, Ohio
courts look to federal case law addressing Title VII for assistance in interpreting
R.C. Chapter 4112.” Nebozuk v. Abercrombie & Fitch Co., 10th Dist. Franklin No.
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Case No. 2-22-26
13AP-591, 2014-Ohio-1600, ¶ 45, quoting Smith v. Ohio Dept. of Pub. Safety, 10th
Dist. Franklin No. 12AP-1073, 2013-Ohio-4210, ¶ 60. “[T]o prevail on a retaliation
claim, a plaintiff must show that retaliation is a determinative factor—not just a
motivating factor—in the employer’s decision to take adverse employment action.”
Diller v. Miami Valley Hospital, 2017-Ohio-9051, 102 N.E.3d 520, ¶ 46 (2d Dist.),
quoting Nebozuk at ¶ 45.
{¶11} “To demonstrate a causal connection between a materially adverse
action, such as suspension or termination, and the exercise of protected rights, ‘a
plaintiff must proffer evidence sufficient to raise the inference that [the] protected
activity was the likely reason for the adverse action.’” Putney v. Contract Bldg.
Components, 3d Dist. Union No. 14-09-21, 2009-Ohio-6718, ¶ 51, quoting Michael
v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 596 (6th Cir. 2007). “In other words,
‘a plaintiff must produce evidence which permits the inference that apart from the
protected activity, the adverse action would not have been taken.’” Putney at ¶ 51,
quoting Nguyen v. City of Cleveland, 229 F.3d 559, 563(6th Cir. 2000).
This determination is made with reference to the surrounding
circumstances, including ‘evidence that defendant treated the plaintiff
differently from similarly situated employees or that the adverse
action was taken shortly after the plaintiff’s exercise of protected
rights[.]’ Id. * * *.
(Citations omitted.) Putney at ¶ 51. “[I]n a small subset of cases, temporal
proximity alone may be sufficient to establish causality * * *[.]” Id. at ¶ 52.
“Generally, mere temporal proximity between a protected activity and a materially
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adverse action without other indicia of retaliatory conduct is not sufficient to
establish the causal connection element of a retaliation claim.” Id.
Legal Analysis
{¶12} In response to KSM’s motion for summary judgment, Hall submitted
copies of email exchanges that occurred in January of 2020 and March of 2020. On
January 4, 2020, Hall emailed her supervisor, Justin Budde (“Budde”), to report that
one of her subordinates was involved in a verbal altercation with another KSM
employee, Kelsey Swan (“Swan”). In response, Budde stated that he took witness
statements and was going to speak with the subordinate identified by Hall. Swan
indicated in her witness statement that Hall’s subordinate had directed a number of
racially charged remarks towards her (Swan).2 Hall then emailed Daniel Hosek
(“Hosek”), who was the senior manager of the associate relations department at
KSM. Hosek replied, indicating that Budde had addressed this subordinate and
stating that Hall could come to the associate relations department for further
discussions about this issue.
{¶13} On March 20, 2020, another supervisor at KSM, Keary Siegrist
(“Siegrist”), sent an email to Hall; Budde; and one other KSM employee, Robert
Dugger (“Dugger”). Siegrist reported that the same subordinate that Hall discussed
in the January 2020 email exchange was refusing to work in another department.
2
In her January 2020 email, Hall did not mention that her subordinate had made racially charged remarks.
She only mentioned that an incident had occurred. Swan then reported that the racially charged comments
in the subsequent inquiry that management made into this incident.
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Siegrist wrote that this subordinate maintained that Hall “always sends the black
people to go to the other department.” (Ex. 1).3 Hall replied to this email, indicating
that this subordinate had stated that she (Hall) is like a “slave owner,” that KSM is
“raciest” [sic], and that KSM is “like a plantation.” (Ex. 1). Dugger then responded
to this thread, confirming that this subordinate had made several of these remarks.
However, he also indicated that he was able to resolve the issue with the subordinate
that night.
{¶14} Hall asserts that these emails demonstrate that she engaged in a
protected activity by reporting incidents in which one of her subordinates had made
racially charged comments in the January 2020 and March 2020 email exchanges.
She then points to the fact that this subordinate later complained to the associate
relations department about the Facebook post that had led to her (Hall’s)
termination. Hall argues that, in so complaining, this subordinate used the associate
relations department to retaliate against her (Hall) for previously reporting the
racially charged comments. However, even if Hall engaged in a protected activity
as alleged and even if Hall has alleged a possible method of retaliation,4 Hall still
has not established the causation element of her retaliation claim.
3
Later in this same email, Siegrist indicated that Hall had regularly sent at least one employee who was not
black to work shifts in another department. In his deposition, Dugger also denied that Hall only sent black
people to the other departments.
4
Hall appears to be arguing under a “cat’s paw” theory of liability for her retaliation claim. Collins v. City
of Mason, 2020-Ohio-1186, 153 N.E.3d 484, ¶ 50 (12th Dist.). The United States Supreme Court has
explained this theory as follows: “[a] plaintiff alleging liability under the cat’s paw theory seeks ‘to hold his
employer liable for the animus of a supervisor who was not charged with making the ultimate employment
decision.’” Staub v. Proctor Hosp., 562 U.S. 411, 415, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011). In Staub,
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{¶15} In this case, only one of Hall’s subordinates was identified as making
racially charged comments in the incidents discussed in the January 2020 and March
2020 email exchanges, but the documents that Hall filed with her motion in
opposition to summary judgment indicate that at least three of her subordinates or
coworkers complained to associate relations about her Facebook post. In his
deposition, Hosek confirmed that “at least three” employees raised complaints and
stated that “[t]hey referenced others” who were apparently upset. (Hosek Depo. Tr.
23). The record indicates that associate relations documented meetings with Swan
and another employee who had concerns about Hall’s post.
{¶16} Further, the documents filed by Hall indicate that, in the verbal
altercation that she reported in January of 2020, the racially charged comments of
Hall’s subordinate were directed at Swan. The documents filed by Hall also indicate
that Swan was one of the subordinates that complained about the Facebook post in
June of 2020. In a meeting with associate relations, Swan reported to Hosek that
the Supreme Court described a situation in which a biased supervisor, who did not have the authority to take
the challenged adverse employment action, used his influence to cause an unbiased decision maker in human
resources to take the adverse employment action desired by the biased supervisor. Id. at 414-416. In the
case presently before us, Hall argues that one of her subordinates—not one of her supervisors—complained
to the ultimate decision maker who then took the adverse employment action that is herein challenged.
Whether and how a cat’s paw theory could be established under the circumstances presented in this case are
factually complicated questions. See Tuttle v. Baptist Health Medical Group, Inc., 379 F.Supp.3d 622, 633
(E.D. Ky. 2019); Omanovic v. Tyson Foods, Inc., W.D. N.C. No. 5:13-CV-00100-DSC, 2014 WL 3109241,
*5 (July 8, 2014). But see Nichols v. Michigan City Plant Planning Dept., 755 F.3d 594, 600 (7th Cir. 2014).
See also Sanford v. Walgreen Co., N.D. Ill. No. 08 C 6325, 2010 WL 380907, *5 (Jan. 27, 2010). However,
as our analysis will show, Hall cannot establish that a biased subordinate was a determinative factor in the
adverse employment action taken by KSM. Since she cannot establish the causation element of her retaliation
claim, we need not address these aforementioned questions and do not make any determination as to these
issues in this opinion.
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“she had looked up to Rita [Hall] and that this incident hurt her ([Swan])
personally.” (Ex. 9). She then stated that “she felt that she could no longer work
for Rita.” (Ex. 9).
{¶17} Broadening the scope of our analysis, we note that the emails
submitted by Hall also indicate that others reported the same comments that she had
identified in the March 2020 email exchange. This email thread was initiated by
another supervisor, Siegrist. Dugger confirmed the comments mentioned by Hall.
Further, Budde conducted the investigation into the January 2020 incident. The
record does not contain any evidence that any complaints or adverse employment
actions were taken against these individuals that could potentially corroborate Hall’s
allegations of retaliation.
{¶18} On appeal, Hall argues that the “temporal proximity” between the
email exchange on March 20, 2020 and her termination on June 24, 2020 “alone
may satisfy the causal element.” Appellant’s Brief, 14. However, it is not clear
from the record that the subordinate who was mentioned in the March 2020 email
exchange was ever made aware of Hall’s comments in the March 2020 email
exchange. Further, the record contains no indication that the subordinate mentioned
in the March 2020 email was ever disciplined or reprimanded for what Hall had
reported. The emails in the March 2020 exchange were sent to the associate
relations department, but Budde and Hosek did not respond. In his deposition,
Hosek affirmed that he “didn’t personally do anything in response to those emails *
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* *” other than reply to the January 2020 email, telling Hall she could come to his
office for a further discussion. (Hosek Depo. Tr. 60).
{¶19} This subordinate may have been aware of Hall’s report in the January
2020 email exchange because the associate relations department conducted an
inquiry into the reported verbal altercation. But by the time Hall was terminated,
over twenty-five weeks had passed since the January 2020 email exchange. Given
how much time had elapsed, temporal proximity alone cannot establish causation.
Cooper v. City of North Olmstead, 795 F.2d 1265, 1272 (6th Cir. 1986); Reeves v.
Digital Equipment Corp., 710 F.Supp. 675, 677 (N.D. Ohio 1989); Mendlovic v.
Life Line Screening of Am., Ltd., 173 Ohio App.3d 46, 2007-Ohio-4674, 877 N.E.2d
377, ¶ 41 (8th Dist.); Boggs v. The Scotts Company, 10th Dist. Franklin No. 04AP-
425, 2005-Ohio-1264, ¶ 26 (interpreting case law to hold that “an interval of two
months between complaint and adverse action so diluted an inference of causation
that, without more, a retaliation claim could not stand”).
{¶20} In fact, even if the record clearly established that this subordinate had
been aware of Hall’s report in the March 2020 email exchange, temporal proximity
alone still would not, given the other deficiencies already noted in this analysis, have
been sufficient to establish causation given that almost fourteen weeks had elapsed
between the March 2020 email exchange and Hall’s termination. Courts have
repeatedly held that periods greater than three months are too long to establish
causation through temporal proximity. Spitultski v. Board of Education of the
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Toledo City School District, 2018-Ohio-3984, 121 N.E.3d 41, ¶ 77-78 (6th Dist.);
Ningard v. Shin-Etsu Silicones of Am., Inc., 9th Dist. Summit No. 24524, 2009-
Ohio-3171, ¶ 17 (holding that a plaintiff must generally present additional evidence
beyond temporal proximity to establish causation “where the events are separated
by more than a few days or weeks”); Woods v. Capital Univ., 10th Dist. Franklin
No. 09AP-166, 2009-Ohio-5672, ¶ 49-50. See also Bahar v. Youngstown, 7th Dist.
Mahoning No. 09 MA 55, 2011-Ohio-1000, ¶ 8.
{¶21} In conclusion, Hall has not identified facts in the record that could
establish that a causal connection existed between this allegedly protected conduct
and her termination. Having examined the evidence in a light most favorable to the
nonmoving party, we cannot conclude that the trial court erred in granting summary
judgment in favor of KSM on Hall’s claim for retaliation. Accordingly, Hall’s first
and second assignments of error are overruled.
Third Assignment of Error
{¶22} Hall argues that the trial court erred by granting summary judgment
on her wrongful termination in violation of public policy claim.
Legal Standard
{¶23} “In Ohio, the common-law doctrine of employment at will governs
employment relationships.” McGlothen v. City of Fairborn, 2019-Ohio-141, 127
N.E.3d 527, ¶ 12 (2d Dist.), quoting Dohme v. Eurand Am., Inc., 130 Ohio St.3d
168, 2011-Ohio-4609, 956 N.E.2d 825, ¶ 11. Under this doctrine,
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a general or indefinite hiring is terminable at the will of either party,
for any cause, no cause or even in gross or reckless disregard of any
employee’s rights, and a discharge without cause does not give rise to
an action for damages.
Collins v. Rizkana, 73 Ohio St.3d 65, 67, 1995-Ohio-135, 652 N.E.2d 653, 656
(1995). However,
[i]n Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49
Ohio St.3d 228, 551 N.E.2d 981 the Ohio Supreme Court created an
exception to the ‘employment-at-will’ doctrine by establishing a
cause of action for wrongful discharge in violation of public policy as
articulated in a specific statute.
Luginbihl v. Milcor Ltd. Partnership, 3d Dist. Allen No. 1-01-162, 2002-Ohio-
2188, 2002 WL 987853, *3 (May 3, 2002).
In order for a plaintiff to succeed on a wrongful-termination-in-
violation-of-public-policy claim, “a plaintiff must establish four
elements: (1) that a clear public policy existed and was manifested
either in a state or federal constitution, statute or administrative
regulation or in the common law (‘the clarity element’), (2) that
dismissing employees under circumstances like those involved in the
plaintiff’s dismissal would jeopardize the public policy (‘the jeopardy
element’), (3) that the plaintiff’s dismissal was motivated by conduct
related to the public policy (‘the causation element’), and (4) that the
employer lacked an overriding legitimate business justification for the
dismissal (‘the overriding-justification element’).”
House v. Iacovelli, 159 Ohio St.3d 466, 2020-Ohio-435, 152 N.E.3d 178, ¶ 12,
quoting Miracle v. Ohio Dept. of Veterans Servs., 157 Ohio St.3d 413, 2019-Ohio-
3308, 137 N.E.3d 1110, ¶ 12. The clarity and jeopardy elements present questions
of law while the causation and overriding justification elements present questions
of fact. Collins, supra, at 70.
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Legal Analysis
{¶24} In her complaint, Hall alleged that the free speech protections in the
Ohio Constitution presented a clear public policy that satisfied the clarity element
of this claim5 and quoted the following portion of the Ohio Constitution: “[e]very
citizen may freely speak, write, and publish his sentiments on all subjects[, being
responsible for the abuse of the right;] and no law shall be passed to restrain or
abridge the liberty of speech * * *.”6 (Doc. 1), quoting Article I, Section 11, Ohio
Constitution. Thus, the issue in this appeal is whether the free speech protections
in the Ohio Constitution provide a basis for the government to insert itself into the
relationship between a private employer and an at-will employee.
{¶25} In its motion for summary judgment, KSM argued that “Ohio Courts
have found that free speech provisions in state constitutions prohibit only state
action” and “that absent state action, a Greeley claim based on” the free speech
protections in the United States Constitution or the Ohio Constitution “must fail.”
(Doc. 23). In her response, Hall did not direct the trial court to a single case in
which a court has held that the free speech protections in the Ohio Constitution can
serve as the basis of a wrongful termination in violation of public policy claim.
5
In its motion for summary judgment, KSM argued that Hall failed to establish both the clarity and
overriding-justification elements of her wrongful termination in violation of public policy claim. Since the
overriding justification element is the subject of Hall’s fourth assignment of error, we will only consider the
clarity element in our analysis of the third assignment of error.
6
Hall omitted the portion of Article I, Section 11 that is bracketed in her quotation of this constitutional
provision in her complaint.
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{¶26} The Ohio Supreme Court has held that a wrongful termination in
violation of public policy claim can be brought where the employee’s termination
“violated the Constitutions of Ohio and the United States, administrative rules and
regulations, and the common law.” Ptylinski v. Brocar Prod., Inc., 94 Ohio St.3d
77, 79, 2002-Ohio-66, 760 N.E.2d 385 (2002), quoting Painter v. Graley, 70 Ohio
St.3d 377, 1994-Ohio-334, 639 N.E.2d 51 (1994), paragraph three of the syllabus.
However, the Ohio Supreme Court has held that the free speech protections in the
Ohio Constitution are coterminous with those offered by the First Amendment to
the United States Constitution and are, therefore, applicable to state actors.
Stephenson v. Yellow Freight Systems, Inc., 10th Dist. Franklin No. 99AP-77, 1999
WL 969817, *7 (Oct. 26, 1999), citing Eastwood Mall, Inc. v. Slanco, 68 Ohio St.3d
221, 222-223, 1994-Ohio-433, 626 N.E.2d 59 (1994).
{¶27} We have found no decision in which the Ohio Supreme Court has held
that a wrongful termination in violation of public policy claim can be brought
against a private actor on the basis of the free speech protections in the Ohio
Constitution in the absence of state action. After considering the issue presently
before us, the Tenth District Court of Appeals concluded that a
wrongful discharge claim * * * based upon the public policy
embodied in Section 11, Article I of the Ohio Constitution (freedom
of speech) is without merit as the prohibitions contained therein apply
only to state action, not the actions of a private citizen or employer.
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Stephenson at *7. See Mitchell v. Mid-Ohio Emergency Services, L.L.C., 10th Dist.
Franklin No. 03AP-981, 2004-Ohio-5264, fn. 4. See also Shevin v. Pathi, 3d Dist.
Seneca No. 13-02-20, 2002-Ohio-4457, ¶ 12 (holding that, in the absence of state
action, constitutional free speech protections could not serve as the basis of an
employee’s retaliation claim against a private employer).
{¶28} Similarly, after examining Ohio law, the United States District Court
for the Northern District of Ohio (“Northern District”) also concluded in two
different cases that constitutional free speech protections could not serve as the basis
of a Greeley claim. Petrovski v. Federal Express Corp., 210 F.Supp.2d 943, 948
(N.D. Ohio 2002); Barnett v. Aultman Hosp., N.D. Ohio No. 5:11-CV-399, 2012
WL 5378738, *6-7 (Oct. 31, 2012) (“[A] public policy wrongful discharge claim
predicated upon a constitutional guarantee of Free Speech cannot reach a private
employer.”).
{¶29} In Petrovski, the Northern District also considered the decisions in
multiple jurisdictions across the country and concluded that “the ‘prevailing view
among the majority of courts addressing the issue is that state or federal
constitutional free speech cannot, in the absence of state action, be the basis of a
public policy exception in wrongful discharge claims.’” Petrovski at 948, quoting
Tiernan v. Charleston Area Med. Ctr., Inc., 203 W.Va. 135, 146, 506 S.E.2d 578(1998); and citing Barr v. Kelso-Burnett Co., 106 Ill.2d 520, 526, 478 N.E.2d 1354(1985); Korb v. Raytheon Corp., 410 Mass. 581, 584, 574 N.E.2d 370 (1991);
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Prysak v. R.L. Polk Co., 193 Mich.App. 1, 10, 483 N.W.2d 629 (1992); Johnson v.
Mayo Yarns, Inc., 126 N.C.App. 292, 484 S.E.2d 840, 843 (1997); Drake v.
Cheyenne Newspapers, Inc., 891 P.2d 80, 82 (Wyo. 1995). See also Correa v.
Working Families United for N.J., D.N.J. No. 16-2217, 2017 WL 5951618, *5 (Nov.
30, 2017).
{¶30} In support of her argument, Hall points to the Northern District’s
decision in Plona v. U.P.S., N.D. Ohio No. 1:06-CV-01144, 2007 WL 509747, *2
(Feb. 13, 2007). In Plona, the Northern District of Ohio held that a wrongful
termination in violation of public policy claim could be brought against a private
employer based upon the Second Amendment in a case where an employee was
terminated for “possession of a firearm off of company property * * *.” Id. at *3.
Pursuant to Plona, Hall asserts that this Court should take the unprecedented step of
holding that the free speech protections in the Ohio Constitution can form the basis
of a wrongful termination in violation of public policy claim.
{¶31} However, in Barnett, the Northern District rejected this suggested
application of Plona. Barnett, supra, at 8. The Northern District stated that its prior
decision in Plona stood for the proposition “that an employer could not take
disciplinary action based upon an employee’s off-premises possession of a gun”;
did not “ha[ve] anything to do with the First Amendment”; and was “irrelevant” to
deciding whether free speech protections could be the basis of a wrongful
termination in violation of public policy claim. Id. (“Courts must proceed
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cautiously when transforming restrictions on the state to restrictions on private
actors.”).
{¶32} Hall’s argument simply cannot overcome the weight of the legal
authorities that take the contrary position. Following the general rule, we conclude
that, in the absence of state action, the free speech protections of the Ohio
Constitution do not provide a basis for Hall, an at-will employee, to raise a wrongful
termination in violation of public policy claim in this case against KSM, a private
employer. Stephenson, supra, at *7; 39 Ohio Jurisprudence 3d, Employment
Relations, Section 66 (2023) (“Ohio does not recognize a cause of action for
wrongful discharge in violation of * * * the public policies embodied in the right to
free speech, in the absence of state action * * *.”).
{¶33} In conclusion, we have not uncovered a case in which the free speech
protections in the Ohio Constitution have been found to provide a legal basis for
bringing a wrongful termination in violation of public policy claim against a private
employer in the absence of state action. We decline the opportunity to become the
first court to reach such a conclusion. As such, Hall cannot establish the clarity
element of her wrongful termination in violation of public policy claim in this case.
For this reason, we conclude that summary judgment was an appropriate method to
dispose of this claim. Accordingly, Hall’s third assignment of error is overruled.
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Fourth Assignment of Error
{¶34} Hall argues that “[t]he trial court erred by finding that it is undisputed
that [she] * * * posted a racially inflammatory meme comparing black lives matter
protestors, primarily African American, to monkeys * * *.” Appellant’s Brief, 17.
Legal Standard
{¶35} “Appellate courts are to ‘decide each assignment of error’ raised on
appeal ‘unless an assignment of error is made moot by a ruling on another
assignment of error * * *.’” Durfor v. West Mansfield Conservation Club, 3d Dist.
Logan No. 8-21-26, 2022-Ohio-416, ¶ 39, quoting App.R. 12(A)(1)(c). “An issue
is moot when it ‘involve[s] no actual genuine, live controversy, the decision of
which can definitely affect existing legal relations.’” Sullinger v. Reed, 2021-Ohio-
2872, 178 N.E.3d 29, ¶ 52 (3d Dist.), quoting Culver v. City of Warren, 84 Ohio
App. 373, 83 N.E.2d 82 (7th Dist. 1948), quoting Borchard, Declaratory Judgments,
at 35 (2d Ed. 1941). “Put differently, an assignment of error is moot when an
appellant presents issues that are no longer live as a result of some other decision
rendered by the appellate court.” Sullinger at ¶ 52, quoting State v. Gideon, 165
Ohio St.3d 156, 2020-Ohio-6961, 176 N.E.3d 720, ¶ 26.
Legal Analysis
{¶36} On appeal, Hall argues that the post she made was “not racist” but was
“political commentary * * *.” Appellant’s Brief, 20. However, even if an issue of
fact did exist as to whether Hall’s post was racist, our resolution of the third
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assignment of error means that Hall still could not establish a claim for wrongful
termination in violation of public policy. This renders moot the arguments raised
herein about the nature of Hall’s Facebook post. As such, we decline to address
the arguments raised in Hall’s fourth assignment of error pursuant to App.R.
12(A)(1)(c).
Conclusion
{¶37} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Auglaize County Court of Common Pleas
is affirmed.
Judgment Affirmed
WALDICK and ZIMMERMAN, J.J., concur.
/hls
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