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Barbara Blackburn et al v. American Dental Centers and

November 17, 2011

BARBARA BLACKBURN ET AL., PLAINTIFFS-APPELLANTS,
v.
AMERICAN DENTAL CENTERS AND DR. SAM JAFFE & ASSOCIATES, INC. ET AL.,
DEFENDANTS-APPELLEES.



(C.P.C. No. 08CVH-01-0230) APPEAL from the Franklin County Court of Common Pleas.

The opinion of the court was delivered by: Brown, J.

Cite as Blackburn v. Am. Dental Ctrs.,

(REGULAR CALENDAR)

DECISION

{¶1} Barbara Blackburn and Heather Esposito, plaintiffs-appellants, appeal the judgment of the Franklin County Court of Common Pleas, in which the court granted the motion for summary judgment filed by American Dental Centers, Dr. Sam Jaffe & Associates, Inc. ("ADC"), and Sam S. Jaffe, D.D.S. ("Jaffe"), defendants-appellees.

{¶2} ADC has dental offices in several states. Jaffee is the sole shareholder in ADC. Esposito began working for appellees in November 1999 as a dental hygienist.

Blackburn began working for appellees in October 2001 as a dental assistant. Sherman Allen began working as a dentist for appellees sometime around June 2002. Appellants claimed in their complaint that, after being hired, they began investigating Allen's background and discovered he had lost his dentistry license in Michigan, had been convicted of criminal offenses in Michigan, and was not supposed to leave Michigan. Appellants also claimed to have witnessed Allen engage in substandard and dangerous patient treatment, bizarre behavior, and unnecessary dental procedures. Appellants further claim to have witnessed Allen at work with hangovers, smelling of alcohol, and falling asleep while examining patients. Appellants claimed that they informed appellees of these issues regarding Allen, but appellees retaliated against them by, among other things, harassing them, warning them not to lodge further complaints, threatening them with legal action for defamation, reducing their wages, assigning unfavorable work duties, and denying promotions.

{¶3} Allen's employment was terminated sometime during September 2002 to November 2002. Appellees terminated Esposito's employment on November 7, 2002. Blackburn wrote a letter to appellees on April 28, 2003, discussing Allen's behaviors, among other things. On May 5, 2003, Blackburn appeared, with her identity disguised, on a local television news program discussing the unsafe conditions at ADC, including Allen's dangerous and unethical actions. A co-worker, Janise Boggs, wrote a letter to appellees on May 6, 2003, indicating that she and Blackburn would not return to work until they felt safe working there. Blackburn never returned to work. Blackburn claims she was terminated from her employment, while appellees claim Blackburn abandoned her position.

{¶4} On January 4, 2008, appellants filed a complaint against appellees. Both appellants alleged wrongful termination in violation of public policy, violations of the Ohio whistle-blower statute (R.C. 4113.52), negligent hiring and retention in employment, slander and tortious interference with business relationships and employment, and intentional or negligent infliction of emotional distress, while Blackburn solely alleged malicious prosecution and abuse of process. Appellees filed an answer and counterclaim, alleging fraud, unjust enrichment, tortious interference with business relationships, and defamation.

{¶5} On November 20, 2009, appellees filed a motion for summary judgment. The trial court granted appellees' summary judgment motion with respect to Blackburn's and Esposito's claims based upon R.C. 4113.52, public policy wrongful termination, emotional distress, tortious interference with business relationships, and slander. The parties agreed to dismiss the remaining claims brought by appellants, as well as appellees' counterclaims. On September 7, 2010, the trial court issued its judgment. Appellants appeal the judgment of the trial court, asserting the following assignments of error:

I. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT TO ADC AND JAFFE ON THE PUBLIC POLICY CLAIMS FOR WRONGFUL TERMINATION AND STATUTORY VIOLATIONS OF R.C. 4113.52.

II. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT ON THE APPELLANTS' REMAINING CLAIMS.

{¶6} Appellants argue in both of their assignments of error that the trial court erred in granting summary judgment to appellees. Pursuant to Civ.R. 56(C), summary judgment is proper if: (1) No genuine issue as to any material fact remains to be litigated;

(2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Appellate review of a lower court's entry of summary judgment is de novo, applying the same standard used by the trial court. McKay v. Cutlip (1992), 80 Ohio App.3d 487, 491. The party seeking summary judgment initially bears the burden of informing the trial court of the basis for the motion and identifying portions of the record that demonstrate an absence of genuine issues of material fact as to the essential elements of the non-moving party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The movant must point to some evidence in the record of the type listed in Civ.R. 56(C) in support of his motion. Id. Once this burden is satisfied, the non-moving party has the burden, as set forth in Civ.R. 56(E), to offer specific facts showing a genuine issue for trial. Id. The non-moving party may not rest upon the allegations or denials in the pleadings, but must affirmatively demonstrate the existence of a genuine issue of material fact to prevent the granting of a motion for summary judgment. Civ.R. 56(C); Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115.

{¶7} In their first assignment of error, appellants argue that the trial court erred when it granted summary judgment to appellees on the public policy claims for wrongful termination and statutory violations of the whistle-blower statute, R.C. 4113.52. Blackburn alleged both whistleblower and public policy wrongful termination claims, while Esposito actively pursued only a public policy wrongful termination claim. With regard to Blackburn's whistle-blower claims under R.C. 4113.52, Blackburn first argues that the trial court used the wrong version of the statute. Blackburn points out that her claims arose in 2003, when the 2001 version of the statute was in effect, but the trial court used the version of the statute revised in 2006. Appellees concede that the trial court used the wrong version of the statute but assert that it makes no difference to the trial court's analysis. Regardless, our de novo analysis will proceed utilizing the 2001 version of the statute. R.C. 4113.52, as effective at the time the present claims arose, provided:

(A)(1)(a) If 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 if the employee reasonably believes that the violation either 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 or is a felony, the employee orally shall notify the employee's supervisor or other responsible officer of the employee's employer of the violation and subsequently shall file with that supervisor or officer a written report that provides sufficient detail to identify and describe the violation. If the employer does not correct the violation or make a reasonable and good faith effort to correct the violation within twenty-four hours after the oral notification or the receipt of the report, whichever is earlier, the employee may file a written report that provides sufficient detail to identify and describe the violation with the prosecuting authority of the county or municipal corporation in which the violation occurred, with a peace officer, with the inspector general if the violation is within the inspector general's jurisdiction, or with any other appropriate public official or agency that has regulatory authority over the employer and the industry, trade, or business in which the employer is engaged.

(b) If an employee makes a report under division (A)(1)(a) of this section, the employer, within twenty-four hours after the oral notification was made or the report was received or by the close of business on the next regular business day following the day on which the oral notification was made or the report was received, whichever is later, shall notify the employee, in writing, of any effort of the employer to correct the alleged violation or hazard or of the absence of the alleged violation or hazard.

(3) If an employee becomes aware in the course of the employee's employment of a violation by a fellow employee of any state or federal statute, any ordinance or regulation of a political subdivision, or any work rule or company policy of the employee's employer and if the employee reasonably believes that the violation either 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 or is a felony, the employee orally shall notify the employee's supervisor or other responsible officer of the employee's employer of the violation and subsequently shall file with that supervisor or officer a written report that provides sufficient detail to identify and describe the violation.

In Ohio, absent an employment contract, an employee is an employee-at-will and may be terminated at any time for any lawful reason or for no reason at all. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 102, fn. 1, citing Henkel v. Educational Research Council of Am. (1976), 45 Ohio St.2d 249, 255. However, an at-will employee may not be discharged or disciplined for reasons violative of a statute or public policy. Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, paragraph two of the syllabus. R.C. 4113.52, Ohio's whistle-blower statute, prohibits the discharge or discipline of an employee whose acts are protected by its provisions. An employee who is discharged or disciplined in violation of R.C. 4113.52 may bring a statutory cause of action for the violation, a common-law cause of action in tort, or both. Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 1997-Ohio-219, paragraph five of the syllabus. An employee must strictly comply with the dictates of the statute in order to receive its protection. Contreras v. Ferro Corp. (1995), 73 Ohio St.3d 244.

{¶8} In the context of a motion for summary judgment, the presentments required in a whistle-blower case are no different from those in any other retaliatory discharge suit. See Chandler v. Empire Chem., Inc. (1994), 99 Ohio App.3d 396, 400. The plaintiff must first make a prima facie case by showing that (1) he or she engaged in activity which would bring him or her under the protection of the statute; (2) was subject to an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action. Wright v. Petroleum Helicopter, Inc. (Sept. 18, 1997), 8th Dist. No. 71168, citing Cooper v. N. Olmsted (C.A.6, 1986), 795 F.2d 1265, 1272.

{ΒΆ9} In the present case, Blackburn contends that R.C. 4113.52(A)(1)(a) and (A)(3) require that an employee reasonably believe either (a) a violation is a criminal offense that is likely to cause an imminent risk of physical harm to persons, or (b) a violation is a hazard to public health or safety, but the trial court here found these provisions require that either (a) a violation is a criminal offense that is likely to cause an imminent risk of physical harm to persons, or (b) a violation is a criminal offense that is a hazard to public health or safety. In other words, appellants contend that R.C. 4113.52(A)(1)(a) and (A)(3) do not require that a violation that is a hazard to public health or safety also be a ...


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