How specific must a plaintiff be to meet the clarity element of a wrongful discharge in violation of public policy tort? The answer from a unanimous Supreme Court of Ohio in Dohme v. Eurand Am., Inc, 2011-Ohio-4609, is very specific indeed. And if the public policy being relied on is workplace safety, generalizations are not good enough.
In order to succeed on a common law wrongful discharge in violation of public policy tort (known in shorthand as a Greeley tort claim, for the case that established this), a plaintiff must prove the following elements: (1) clarity, (2) jeopardy, (3) causation and (4) overriding justification. The first two elements are questions of law; the last two are questions of fact.
Originally in the Greeley case, the Court limited the expression of clear public policy to statutes. But in 1994, in the case of Painter v. Graley, the Court greatly expanded the sources of public policy beyond statutes, to include the state and federal constitutions, administrative rules and regulations, and the common law.
Back in the day, particularly when Justice Andy Douglas was on the court, a very expansive view of workplace safety emerged. In Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St. 3d 134, a plurality opinion, the Court held that an employee who is discharged or disciplined for filing an OSHA complaint was allowed to bring a Greeley tort claim against his employer. Then, in Pytlinski v. Brocar Products, Inc. (2002), 94 Ohio St. 3d 77, the first paragraph of the syllabus provides that 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. Justice Douglas, now gone from the court, authored both decisions.
The high court originally accepted jurisdiction in Dohme v. Eurand in 2007, but the appeal was dismissed for lack of a final appealable order. It went back through the process and was accepted again. One of the goals Eurand sought in getting the case into the high court was to correct what it saw as an overbroad reading of Pytlinksi. Eurand urged the court to accept its proposition of law that if workplace safety is to be the basis of a wrongful discharge in violation of public policy tort, a generic reference to workplace safety isn’t enough. Specifics are required. To satisfy the clarity element of the wrongful discharge claim the employee must identify a specific safety policy that is implicated by his termination, and applicable to the facts of his case, not just a generalization about advancing general workplace safety. The Court adopted Eurand’s position in this case.
Randall Dohme was hired by Eurand America in 2001, working first as an engineering supervisor, later as a facilities administrator. He was fired in 2003, he says for reporting his workplace safety concerns to outside parties, the company says for insubordination.
The defining dispute between the parties turned on a visit by an insurance adjustor conducting an on-site inspection of the plant. Before the adjustor’s visit, the company sent an inter-office memo to its employees, informing them that only certain designated employees were to speak with the adjuster. Dohme was not one of those designated employees, but he spoke with the adjuster anyway, about some fire safety concerns. His disregard of the company’s express directive got him fired.
The trial court granted summary judgment to Eurand, finding that Dohme had not met the clarity element of the tort, and that the jeopardy element issue was moot because the clarity element had not been met. The Second District Court of Appeals reversed, finding there is a clear public policy in favor of fire safety in the workplace, which had been jeopardized by Dohme’s firing. Thus the Second District found that Dohme had met both the clarity and jeopardy elements of the tort.
Writing for a unanimous court, (with Justice Pfeifer concurring in judgment only) Justice Cupp found Dohme had failed to meet the clarity element of this wrongful discharge tort because he had pled nothing but generalizations. Simply alleging a lack of workplace safety is not legally sufficient to meet the clarity element of the tort. To do so, “a terminated employee must articulate a clear public policy by citation to specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law.”
The Court also noted that in both Pytlinksi and Kulch, the plaintiffs had alleged violations of specific federal OSHA regulations.
The high court had originally accepted two other propositions of law dealing with the jeopardy element of this tort in this case But the Court did not address them because it did not need to do so, given its holding on Dohme’s failure to meet the clarity element.
Please visit my July 5 post in which I threw out the question whether it was time for the court to revisit the clarity and jeopardy elements of this tort.
This is the second decision in three months on a Greeley tort issue. In June, in Sutton v. Tomco the Court allowed a plaintiff injured on the job, but fired before he could pursue his worker’s compensation claim to use R.C. 4123. 90, the anti-retaliation statute, to meet the clarity element of a common law wrongful discharge claim, even though he wasn’t covered under the statute.