[Cite as Blackburn v. Am. Dental Ctrs., 2014-Ohio-5329.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Barbara Blackburn et al., :
Plaintiffs-Appellants, : No. 13AP-619
(C.P.C. No. 08CVH-01-230)
v. :
(REGULAR CALENDAR)
American Dental Centers, :
Dr. Sam Jaffe & Associates, Inc. et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on December 2, 2014
Law Offices of James P. Connors, and James P. Connors, for
appellants.
Baker & Hostetler, LLP, Elizabeth A. McNellie, and
Matthew W. Hoyt, for appellees.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} Barbara Blackburn and Heather Esposito, plaintiffs-appellants, appeal from
a judgment entered by the Franklin County Court of Common Pleas granting summary
judgment for a second time in favor of defendants-appellees, Sam S. Jaffe, D.D.S., and
American Dental Centers, Dr. Sam Jaffe & Associates, Inc. ("ADC"). This case is before us
pursuant to a renewed appeal after our remand in Blackburn v. Am. Dental Ctrs., 10th
Dist. No. 10AP-958, 2011-Ohio-5971, and our recitation of facts is largely taken from that
decision.
No. 13AP-619 2
{¶ 2} ADC has several dental offices in Ohio and Pennsylvania, employing
dentists and staff at each location. Dr. Jaffe is the sole shareholder in ADC. Esposito
began working for ADC in November 1999 as a dental hygienist at the Maple Canyon
office in Columbus. Blackburn began working for ADC in October 2001 as a dental
assistant in the same office. Dr. Sherman Allen, who is not a party to this action but whose
alleged misconduct informs much of appellants' narrative, began working for ADC as a
dentist in the Maple Canyon office sometime around June 2002.
{¶ 3} Appellants alleged in their complaint that, after ADC hired Dr. Allen, they
began investigating Dr. Allen's background and discovered he had lost his dentistry
license in Michigan, had been convicted of criminal offenses in Michigan, and under the
terms of his sentence, was not supposed to leave Michigan. Appellants also claimed to
have witnessed Dr. Allen engage in substandard and dangerous patient treatment that
resulted in permanent damage or loss of teeth. Much of this involved unnecessary dental
procedures or deliberately botched work to generate further treatment and thus higher
billings for appellees and Dr. Allen. Appellants further claimed to have witnessed Dr.
Allen at work intoxicated, hung over, smelling of alcohol, and falling asleep while
examining patients. Appellants claimed that they informed their supervisors with ADC of
these issues regarding Dr. Allen, but rather than act to protect patients from this conduct,
ADC management and staff retaliated against appellants by, among other things,
harassing appellants, warning them not to lodge further complaints, threatening them
with legal action for defamation, reducing their wages, assigning them unfavorable work
duties, and denying promotions.
{¶ 4} ADC terminated Dr. Allen's employment sometime between September and
November 2002. ADC terminated Esposito's employment on November 7, 2002.
Blackburn continued to work for ADC for a time after these events despite ongoing
workplace tension.
{¶ 5} Blackburn wrote a letter to appellees on April 28, 2003, discussing Dr.
Allen's past professional misconduct as an ADC employee, among other things. On May 5,
2003, Blackburn appeared, with her identity disguised, on a local television news program
to discuss the unsafe conditions at ADC, including Dr. Allen's dangerous and unethical
treatment methods. A co-worker, Janise Boggs, wrote a letter to appellees on May 6,
No. 13AP-619 3
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.
{¶ 6} Appellants, initially joined by several other former employees who are no
longer parties to the case, twice initiated, then dismissed, actions against ADC. Finally, on
January 4, 2008, appellants filed the present complaint against appellees. Both appellants
alleged wrongful termination in violation of public policy, violations of the Ohio
whistleblower statute (R.C. 4113.52), negligent hiring and retention in employment,
slander and tortious interference with business relationships and employment, and
negligent or intentional infliction of emotional distress. Blackburn alone added a claim
for malicious prosecution and abuse of process. Appellees filed an answer and
counterclaim, alleging fraud, unjust enrichment, tortious interference with business
relationships, and defamation.
{¶ 7} On November 20, 2009, appellees filed a motion for summary judgment.
The trial court granted appellees' summary judgment motion with respect to Blackburn
and Esposito's R.C. 4113.52 whistleblower claims, public policy wrongful termination
claims, negligent or intentional infliction of emotional distress claims, tortious
interference with business relationship claims, and slander claims. The trial court also
granted judgment for appellees on Blackburn's separate claims for malicious prosecution
and abuse of process. The parties agreed to dismiss the remaining claims and
counterclaims. On September 7, 2010, the trial court entered final judgment reflecting
this first grant of summary judgment in favor of appellees and the subsequent voluntary
dismissals, and the first appeal to this court ensued.
{¶ 8} In Blackburn, we found the trial court did not err when it granted summary
judgment on appellants' whistleblower claims as well as their claims for negligent or
intentional infliction of emotional distress, slander, and tortious interference with
business relationships, and Blackburn's separate claims for malicious prosecution and
abuse of process. However, we concluded that the trial court erred when it held that as a
matter of law appellants had insufficiently pleaded in their complaint the claims for public
policy wrongful discharge based on drug and substance abuse in the workplace, patient
safety, and workplace safety. We remanded the matter for the trial court to address under
No. 13AP-619 4
the correct standard whether appellees were entitled to summary judgment on these
public policy wrongful discharge claims. Id. at ¶ 23-27.
{¶ 9} On remand, appellees filed a supplemental memorandum with the trial
court in support of their prior motion for summary judgment. They argued that summary
judgment was again appropriate under the laws of the case established by our decision in
Blackburn. The trial court considered appellees' supplemental filing and also granted
leave to appellants to file a response. In this, appellants presented their proposed legal
authority supporting the viability of their public policy wrongful discharge claims based
on considerations of drug and substance abuse in the workplace, hazardous practices
affecting patient safety, and general workplace safety. On June 19, 2013, the trial court
issued a decision again granting appellees' motion for summary judgment. Appellants
appeal the judgment of the trial court, asserting the following assignment of error:
THE TRIAL COURT ERRONEOUSLY HELD, FOR A
SECOND TIME ON REMAND, THAT THE APPELLANTS
FAILED TO SUFFICIENTLY "STATE" PUBLIC POLICY
WRONGFUL TERMINATION CLAIMS.
{¶ 10} Appellants argue in their assignment 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.,
50 Ohio St.2d 317, 327 (1977). 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,
80 Ohio App.3d 487, 491 (9th Dist.1992). 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, 75 Ohio St.3d
280, 293 (1996). 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
No. 13AP-619 5
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 on 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, 38 Ohio St.3d 112, 115 (1988).
{¶ 11} As a preliminary matter, we note that appellees have not formally stated a
"defensive" cross-assignment of error pursuant to App.R. 3(C)(2), but nonetheless assert
the trial court erred in allowing supplemental briefing by appellants after remand from
this court. Appellees argue that the trial court should not have considered the additional
arguments and evidentiary materials submitted by appellants, and that the court was
limited to those materials submitted by the parties in their memoranda leading up to the
first grant of summary judgment preceding the initial appeal.
{¶ 12} We find there is no basis for such a limitation on the trial court. To
appellees' advantage, the court chose to consider the previous summary judgment motion
as still viable, rather than requiring appellees to formally refile it, as would be the most
common practice. See, e.g., Hudson & Keyse, L.L.C. v. Carson, 10th Dist. No. 08AP-1061,
2009-Ohi0-2656; Crites v. Anthem Life Ins. Co., 3d Dist. No. 4-13-13, 2014-Ohio-1682.
There is no apparent procedural bar against the trial court impliedly reviving the motion
in this manner, but conversely there is no authority for the proposition that the trial court
must "freeze" the pleadings in their pre-appeal state and consider the motion for
summary judgment as it lay prior to our decision in Blackburn. In fact, dicta to the
contrary is common: "On remand, the trial court received new evidentiary material
submitted by the parties, and once again granted summary judgment for appellees."
Runyon v. Dickens, 4th Dist. No. 1467 (Oct. 14, 1982), appeal dismissed on other
grounds. This practice is particularly appropriate after an appellate remand that directly
addressed and clarified the law as initially applied by the trial court.
{¶ 13} Moreover, in the present case, it was appellees who initiated the process of
supplemental briefing after remand by submitting an additional memorandum to "[alert]
the trial court to the Ohio Supreme Court's September 2011 decision in Dohme v. Eurand
America, Inc., [130 Ohio St.3d 168,] 2011-Ohio-4609." (Appellees' Brief, 18.) Having
themselves benefited from additional briefing, appellees cannot now complain the trial
No. 13AP-619 6
court should have denied appellants the same opportunity. We find no error in the trial
court's consideration of additional summary judgment materials after remand.
{¶ 14} We now turn to the merits of the appeal. As we discussed in Blackburn, an
exception to the employment-at-will doctrine exists where the employee's discharge
violates public policy. Painter v. Graley, 70 Ohio St.3d 377 (1994). To establish a prima
facie claim of wrongful discharge in violation of public policy, the employee must
demonstrate the following four elements: (1) that there exists a clear public policy that is
manifested in a state or federal constitution, statute, or administrative regulation, or in
the common law (the "clarity" element), (2) that dismissal of employees under
circumstances like those involved in the plaintiff's dismissal would jeopardize that 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
overriding legitimate business justification for the dismissal (the "overriding justification"
element). Collins v. Rizkana, 73 Ohio St.3d 65, 69-70 (1995). The clarity and jeopardy
elements are questions of law to be decided by the court, and the causation and overriding
justification elements are questions of fact to be decided by the fact finder. Id. at 70.
{¶ 15} The failure of appellants' whistleblower claims does not preclude a common
law claim for wrongful discharge in violation of public policy, because the whistleblower
statute supplements rather than replaces the common law cause of action. Greeley v.
Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 233 (1990). "An at-will
employee who is discharged or disciplined in violation of the public policy embodied in
R.C. 4113.52 may maintain a common-law cause of action against the employer pursuant
to Greeley * * * and its progeny, so long as that employee had fully complied with the
statute and was subsequently discharged or disciplined." Kulch v. Structural Fibers, Inc.,
78 Ohio St.3d 134 (1997), paragraph three of the syllabus. However, if an employee fails to
strictly comply with the whistleblower requirements of R.C. 4113.52, as we found in
Blackburn, the employee cannot base a Greeley claim solely upon the public policy
embodied in that statute. Id. at 153. Rather, the employee must identify an independent
source of public policy to support her claim. See Thompson v. Gynecologic Oncology &
Pelvic Surgery Assoc., 10th Dist. No. 06AP-340, 2006-Ohio-6377, ¶ 50 ("[A] plaintiff may
not bring a public policy tort claim based on the public policy embodied in a statute unless
No. 13AP-619 7
she either complies with the statute embodying the public policy or identifies an
independent source of public policy supporting her claim."); Lesko v. Riverside Methodist
Hosp., 10th Dist. No. 04AP-1130, 2005-Ohio-3142, ¶ 34 ("[A]ppellant is entitled to bring a
public policy tort claim regardless of whether she complied with R.C. 4113.52, as long as
she can identify a source of public policy separate from the public policy embodied in R.C.
4113.52.").
{¶ 16} In order to satisfy the clarity element, the plaintiff must "articulate a clear
public policy by citation of specific provisions in the federal or state constitution, federal
or state statutes, administrative rules and regulations, or common law." Dohme at
syllabus. The court's holding in Dohme largely reprises earlier Supreme Court of Ohio
holdings on the topic: " 'Clear public policy' sufficient to justify an exception to the
employment-at-will doctrine is not limited to public policy expressed by the General
Assembly in the form of statutory enactments, but may also be discerned as a matter of
law based on other sources, such as the Constitutions of Ohio and the United States,
administrative rules and regulations, and the common law." Painter at paragraph three
of the syllabus.
{¶ 17} If not expressed in reference to federal law, the public policy in question
must exist at the state, rather than local, level, either through statute or common law
expressed in a court decision. Burns v. Ohio State Univ. College of Veterinary Med., 10th
Dist. No. 13AP-633, 2014-Ohio-1190, ¶ 13, citing Dohme at ¶ 21. Dohme makes clear,
however, that beyond general principles of notice pleading, the plaintiff may use summary
judgment materials to flesh out the public policy relied upon. Dohme at ¶ 20-21 ("In
Dohme's materials opposing summary judgment, he recited syllabus language. * * * As
the nonmovant, Dohme * * * may not rely merely upon the pleadings or upon
unsupported allegations.").
{¶ 18} In this appeal, appellants first argue that in Blackburn this court already
found that appellants' complaint sufficiently pled their public policy claims, and the trial
court was therefore bound by the laws of the case to find that summary judgment could
not be granted on those claims. That is not what we held. To the contrary, we found the
trial court should look past the pleadings and consider the claims under the summary
judgment standard: "Having found that appellants did not sufficiently raise claims for
No. 13AP-619 8
public policy wrongful discharge based upon drug and substance abuse in the workplace,
patient safety, and workplace safety, the trial court never addressed whether appellees
were entitled to summary judgment on these claims. We decline to address these issues
for the first time on appeal. Therefore, we remand the matter for the trial court to address
whether appellees were entitled to summary judgment based upon these public policy
wrongful discharge claims." Id. at ¶ 27.
{¶ 19} Appellants next argue the trial court misapplied Dohme when it granted
summary judgment to appellees on the public policy claims for wrongful termination.
Appellants argue that the trial court improperly limited its determination of the clarity
element by again restricting review to the bare allegations in the complaint. This appears
accurate: the trial court found in its decision that, with regard to the public policy claims
involving drug and substance abuse, "[w]hile Plaintiffs articulated numerous sources of
the public policy in their 'Supplemental Authority,' the Court believes that this falls short
of Dohme's requirement that the sources be articulated in the Complaint." (Emphasis
added.) As explained above, Dohme contains no such limitation and clearly provides that
the existence of a public policy may be established in summary judgment materials, not
just the complaint. Appellants are therefore correct that the trial court misread Dohme in
this respect. Nonetheless, the trial court's judgment may yet be affirmed if we find that all
the materials properly before the court fail to preserve a genuine issue of material fact on
the public policy claims.
{¶ 20} Before the trial court, appellants proposed the existence of three clear public
policies under the statewide law of Ohio: a policy against drug and substance abuse in the
workplace; a policy promoting workplace safety generally; and a policy promoting patient
safety. With respect to workplace safety, both appellants claim to have reported issues
arising from Dr. Allen's conduct, generally alleging that he physically accosted or harassed
appellants, threatened them, and had other violent confrontations in the workplace,
including an instance in which another dentist in the same office brought a machete to
work to confront Dr. Allen. Both appellants asserted that, when they brought these
problems to the attention of their superiors, they were told to ignore the situation or face
termination.
No. 13AP-619 9
{¶ 21} Appellants cite Kulch, which held that employer retaliation against
employees who file Occupational Health and Safety Administration ("OSHA") complaints
concerning unsafe or unhealthy conditions in the workplace was actionable. Appellants
also rely on Pytlinski v. Brocar Prods. Inc., 94 Ohio St.3d 77, 2002-Ohio-66, paragraph
one of the syllabus: "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."
{¶ 22} The trial court in our case noted that appellants had not filed formal OSHA
complaints as in Kulch, and could not use that holding as basis for a retaliation claim.
Implicitly questioning the continued viability of Pytlinski, the trial court preferred to rely
on the Supreme Court's much more recent holding in Dohme, which stated that the
plaintiff in that case failed to meet the clarity element because he "did not cite any specific
statement of law in support of his claim of public policy that was drawn from the federal
or state constitution, federal or state statutes, administrative rules and regulations, or
common law." (Emphasis added.) Dohme at ¶ 21.
{¶ 23} Although the plaintiff in Dohme had cited the syllabus law of Pytlinski, as
appellants do here, and Pytlinski at its heart acknowledges the existence of a clear public
policy in Ohio favoring workplace safety, the Supreme Court in Dohme ultimately held
that a plaintiff cannot rely on a "generally mentioned or identified" legal basis for
statewide policy when meeting the clarity requirement for discharge in violation of public
policy, i.e., the syllabus law of a prior Supreme Court case. Id. In other words, Dohme can
only be read for the proposition that prior syllabus law rendered by the Supreme Court in
Pytlinski does not suffice to establish a clear public policy.
{¶ 24} Dohme, however, is distinguishable in one important respect from the case
before us. Appellants, unlike the plaintiff in Dohme, do cite to more than the syllabus of
Pytlinski. They cite to two specific sections of the Ohio Revised Code, R.C. 4101.11 and
4101.12, as specific statutory support for their proposed public policy promoting
workplace safety for employees and patients.
No. 13AP-619 10
{¶ 25} These sections provide as follows:
R.C. 4101.11
Duty of employer to protect employees and frequenters
Every employer shall furnish employment which is safe for the
employees engaged therein, shall furnish a place of
employment which shall be safe for the employees therein and
for frequenters thereof, shall furnish and use safety devices
and safeguards, shall adopt and use methods and processes,
follow and obey orders, and prescribe hours of labor
reasonably adequate to render such employment and places of
employment safe, and shall do every other thing reasonably
necessary to protect the life, health, safety, and welfare of such
employees and frequenters.
R.C. 4101.12
Duty of employer to furnish safe place of employment
No employer shall require, permit, or suffer any employee to
go or be in any employment or place of employment which is
not safe, and no such employer shall fail to furnish, provide,
and use safety devices and safeguards, or fail to obey and
follow orders or to adopt and use methods and processes
reasonably adequate to render such employment and place of
employment safe. No employer shall fail to do every other
thing reasonably necessary to protect the life, health, safety,
and welfare of such employees or frequenters. No such
employer or other person shall construct, occupy, or maintain
any place of employment that is not safe.
{¶ 26} Appellants and appellees in this case are indisputably employees and
employers respectively. The dental office operated by appellees is a "place of
employment." While R.C. 4101.11 and 4101.12 expressly are not affected by the repeal of
other statutes concerning the former Division of Industrial Compliance, they did lose their
associated definitional sections. See 1995 S.B. No. 162 and former R.C. 4101.01(E).
Elsewhere in Title 41, Labor and Industry, however, we find the following relevant
definition of "frequenter": " 'Frequenter' means every person, other than an employee,
who may go in or be in a place of employment under circumstances which render the
person other than a trespasser." R.C. 4121.01(A)(5). See generally McClary v. M/I
No. 13AP-619 11
Schottenstein Homes, Inc., 10th Dist. No. 03AP-777, 2004-Ohio-7047, ¶ 59-60. We find
that patients in a dental office fit this definition. The parties and premises in this case
align with the categories covered under the statute.
{¶ 27} We accordingly find that these statutes together establish that there exists a
clear public policy that is manifested in a state or federal constitution, statute, or
administrative regulation in Ohio favoring workplace safety for employees and
frequenters. Appellants have therefore met the clarity element in this case. There is a
statewide policy prohibiting termination of employees who report conduct and practices
in a dental practice that present a risk of severe harm to patients or staff.
{¶ 28} Finding that the clarity element is met, we turn to the jeopardy element of a
wrongful termination claim: whether termination of employees in circumstances similar
to appellants would jeopardize the public policy. In this case, the record is replete with
evidence of the professional shortcomings of Dr. Allen. The evidence indicates he
routinely worked when hung over or intoxicated to the point of dysfunction, and the
results for some patients were disfiguring, painful, and permanent. He intentionally
botched simple procedures in order to generate lucrative repair work after the fact. Most
relevant to the jeopardy element, the materials submitted by appellants, if believed, make
it clear that their terminations were in direct response to appellants' attempts to warn
their employer about the grossly substandard care provided by Dr. Allen to ADC patients.
While appellees may yet contest the third and fourth elements as questions of fact before
the trial court, we find that the second, or jeopardy, element of a wrongful termination
claim is met here as well.
{¶ 29} We accordingly find the trial court erred in concluding that there is no Ohio
public policy against retaliation by employers against employees who report workplace
conditions that jeopardize staff and dental patient safety. This aspect of appellants'
assignment of error has merit and is sustained. In so holding, based on R.C. 4101.11 and
4101.12, we specifically disagree with the Sixth District's holding in Whitaker v.
FirstEnergy Operating Co., 6th Dist. No. OT-12-021, 2013-Ohio-3856, ¶ 25, which found
those statutes too "general and broad" to support such a claim, and agree with the dissent
in that case. (Yarbrough, J., dissenting.)
No. 13AP-619 12
{¶ 30} With respect to the allegation that there is a clear statewide public policy
against drug abuse in the workplace, other than the general criminalization of some types
of drug use, we find that this public policy is essentially subsumed into the two others
cited. To the extent the alleged drug abuse is a component of the threat to employee and
patient safety, it falls under the workplace safety rubric generally rather than as an
independent public policy grounds.
{¶ 31} In summary, we find the trial court erred in granting summary judgment on
appellants' claims for wrongful discharge in violation of public policy. Appellants have
met the clarity and jeopardy elements based on their citation to statutes establishing clear
public policies promoting patient safety and employee safety in the workplace.
Accordingly, on remand, the trial court will consider the final two elements of the
wrongful discharge test under Dohme with respect to these claims. In accordance with
the foregoing, appellants' assignment of error is sustained in part and overruled in part,
and this matter is remanded to the Franklin County Court of Common Pleas for further
proceedings in accordance with law, consistent with this decision.
Judgment affirmed in part and
reversed in part; cause remanded with instructions.
SADLER, P.J., and TYACK, J., concur.