Kulch v. Structural Fibers, Inc.

Pfeifer, J.,

concurring in syllabus and judgment only. I concur in the syllabus and judgment of the majority. I am pleased to see that a cause of action for whistleblowers has finally found its most fitting forum — the common law. See Contreras v. Ferro Corp. (1995), 73 Ohio St.3d 244, 251-253, 652 N.E.2d 940, 946-947 (Pfeifer, J., dissenting.). The Whistleblower Statute, R.C. 4113.52, was enacted only after this court failed to appropriately extend common-law protection in Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 23 OBR 260, 491 N.E.2d 1114, a case which demonstrated that such protection was truly needed. The Whistleblower Statute was not a response to judicial action, but to judicial inaction. It was not an attempt to curb a common-law right, but to create a right where the common law had failed.

*164At the same time we formally recognize a common-law cause of action for whistleblowers, it is important to recognize the cause of action’s legal corollary. The entry of this cause of action into the common law must allow for the development of a wide range of reasonable defenses that will permit an employer to tell the whole story of a termination.

Cook, J., dissenting in part and concurring in part. I concur only in Part III of the majority opinion. I respectfully dissent from the majority decision to expand the R.C. 4113.52 remedies beyond those established by the General Assembly because the majority fails to persuade that its result is legitimately grounded in Ohio public policy. I also dissent because the plaintiff failed to withstand the summary judgment challenge of the employer.

I

THE REMEDY PROVIDED IN R.C. 4113.52 IS EXCLUSIVE

This decision by the majority is a troubling instance of this court elevating itself above the General Assembly as architect of Ohio’s public policy. Rather than interpreting the Whistleblower Statute, the majority sets its own policy for the state based on the view of four justices that the statutory relief, as crafted by the branch of government charged with that decision, is not “ample [or] complete.” The majority, because it disagrees with the legislative decisions to limit remedies provided in the state and federal statutes, acts beyond this court’s constitutional authority to remedy the perceived shortcomings.

Pursuant to Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981, the majority purports to base an exception to at-will employment on “public policy” extracted from state and federal statutory provisions. Recognition of a Greeley claim in this case, however, does not act to further the public-policy determination of Congress or the General Assembly. Instead, it circumvents the specific remedies provided in those statutes.

As part of its rationale, the majority opinion takes license with the historical doctrine of employment at will. It postulates that at-will employment is a creature of common law, and therefore may be judicially abolished. Until today, however, the Ohio judiciary has never recognized a common-law protection against discharge for whistleblowing activity. Moreover, the Ohio Constitution gives the legislature primary responsibility to protect the welfare of employees. Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 103, 23 OBR 260, 262, 491 N.E.2d 1114, 1117.

As for the reliance on the Occupational Safety and Health Act of 1970 (“OSHA”), Section 651 et seq., Title 29, U.S.Code, it is questionable, even as a general proposition, to look to a federal statute as a source of Ohio public policy. *165The majority justifies its creation of a Greeley claim based on OSHA by referring to the “clarity” element contained in the model from Professor Perritt’s law review article, and employed in the lead opinion in Painter v. Graley (1994), 70 Ohio St.3d 377, 384, 639 N.E.2d 51, 57. Without meaningful analysis of the relevant federal statute, the majority announces that OSHA creates a clear statement of public policy favoring “workplace safety” and Greeley thereby permits a cause of action for retaliatory discharge grounded in common law. Such reasoning is dubious in light of the fact that although Section 660(c), Title 29, U.S.Code provides whistleblowers a remedy for retaliatory discharge, that section does not provide whistleblowers with a private cause of action. Taylor v. Brighton Corp. (C.A.6, 1980), 616 F.2d 256. Instead, all claims are processed through the Secretary of Labor, who possesses broad authority to determine the investigatory and prosecutorial action to be taken. Id. at 261-262.6

This court’s creation of a Greeley claim based on the federal policy to promote “workplace safety” permits an employee to do in Ohio courts that which OSHA forbids in federal court — to bring a private cause of action. The majority adopts that portion of the federal public policy supporting its determination, while ignoring the policy-driven balancing components of that legislation. As a consequence, we are left with an exception to the employment-at-will doctrine purportedly grounded on federal public policy that is more transparent than it is clear.

The majority additionally states that “Ohio’s public policy is clearly in keeping with the laudable objectives of the federal Occupational Safety and Health Act.” While this may be true, the branch of government properly charged with making public-policy decisions — the General Assembly — has expressed Ohio’s policy by enacting R.C. 4113.52. Like Section 660(c), Title 29, U.S.Code, Ohio’s whistle-blower statute recognizes an exception to at-will employment and sets the bounds of available relief.

In Contreras v. Ferro (1995), 73 Ohio St.3d 244, 652 N.E.2d 940, syllabus, we recognized that relief under the Whistleblower Statute requires strict compliance with the reporting dictates of R.C. 4113.52. Like the reporting requirements, the *166limited remedies contained in R.C. 4113.52(E) reflect the General Assembly’s public-policy determination. Accordingly, the majority contravenes the General Assembly’s expression of public policy by authorizing whistleblower relief beyond the statutory limits.

The majority cites Collins v. Rizkana (1995), 73 Ohio St.3d 65, 70, 652 N.E.2d 653, 658, to support its determination that the “public policy” embedded in a statute may be extracted to defeat that statute’s coverage provisions.7 In Collins, this court recognized the right of an employee to maintain a Greeley claim based on policy embodied in R.C. Chapter 4112, despite the fact that Collins’s employer did not meet the statutory definition of “employer.” Id. at 74, 652 N.E.2d at 661.

R.C. 4112.99, which provides the penalty for a violation under R.C. Chapter 4112, subjects a wrongdoer “to a civil action for damages, injunctive relief, or any other appropriate relief.” Accordingly, the Collins court did not endorse an enlargement of statutory remedies beyond those provided in R.C. Chapter 4112. Unlike R.C. 4112.99, 4113.52(E) specifically limits the remedies available to a discharged whistleblower to reinstatement of employment, back pay, reinstatement of seniority and fringe benefits, litigation costs, attorney fees, and interest on back pay.8

Moreover, the majority opinion in Collins carefully noted:

“We do not mean to suggest that where a statute’s coverage provisions form an essential part of its public policy, we may extract a policy from the statute and use it to nullify the statute’s own coverage provisions.” Id. at 74, 652 N.E.2d at 661.

Disregarding the Collins court’s caveat, the decision of the majority allows a Greeley claim based on the public policy of R.C. 4113.52, which defeats that *167statute’s coverage provisions. This result is achieved by recognizing a public policy to promote “workplace safety” favoring employees while ignoring the policy considerations reflected in R.C. 4113.52(E), which balances the statute by limiting the available relief. Despite the majority’s assertions to the contrary, the expansion of whistleblower remedies does not come as a natural evolution of common law — it is in derogation of the common-law employment relationship. Under Greeley and its progeny, such an expansion can be accomplished only when acting pursuant to “sufficiently clear public policy,” such as a statute or other comparable authority. Greeley, 49 Ohio St.3d at 233, 551 N.E.2d at 986; Painter, 70 Ohio St.3d at 384, 639 N.E.2d at 56.

Here the majority extracts an overly broad public policy from both R.C. 4113.52 and Section 660(c), Title 29, U.S.Code, while ignoring the specific remedies provided by those statutes. Such action is beyond this court’s constitutional authority. See, e.g., State v. Smorgala (1990), 50 Ohio St.3d 222, 223, 553 N.E.2d 672, 674; State ex rel. Bishop v. Mt. Orab Village School Dist. Bd. of Edn. (1942), 139 Ohio St. 427, 438, 22 O.O. 494, 498, 40 N.E.2d 913, 919; Primes v. Tyler (1975), 43 Ohio St.2d 195, 72 O.O.2d 112, 331 N.E.2d 723.9

The Trader Dissent

The majority impugns the dissent in Trader v. People Working Cooperatively, Inc. (1996), 74 Ohio St.3d 1286, 1286-1289, 660 N.E.2d 737, 737-739. I joined that dissent and I continue to support its analysis as judicious.

In criticizing the Trader dissent, the majority traces the controlling language from Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police (1991), 59 Ohio St.3d 167, 169, 572 N.E.2d 87, 89-90, which forms the cornerstone of Justice Wright’s analysis, back to its origin. In Franklin Cty. Law Enforcement Assn., the majority quoted paragraph two of the syllabus in Zanesville v. Fannan (1895), 53 Ohio St. 605, 42 N.E. 703, which states:

“Where a statute which creates a new right, prescribes the remedy for its violation, the remedy is exclusive * * *.”

As stated by the majority, the Zanesville court cited Dunn v. Kanmacher (1875), 26 Ohio St. 497, in addition to other authorities, in support of paragraph two of its syllabus. The majority declares that the “true” principle of law, as *168stated in Dunn, provides that “where a statute gives a new right, and also prescribes the remedy for its violation, the remedy so prescribed must be taken as exclusive, unless it appears from the statute that the legislature intended otherwise.” (Emphasis added in Zanesville.) However, in applying the Dunn standard to this case, the majority reverses the presumption of exclusivity.

The majority concludes that the General Assembly did not intend the R.C. 4113.52 remedy to be exclusive because it was not so labeled. Unlike the Trader dissent, the majority cites no statutory language or legislative history supporting its conclusion. It merely cites the absence of language making the limited remedies available in R.C. 4113.52 “sole and exclusive.”

The majority relies heavily on the fact that R.C. 124.341 labels its remedy as “sole and exclusive,” while R.C. 4113.52 does not. R.C. 124.341 provides public employees relief similar to that contained in R.C. 4113.52, and expressly labels itself as a public employee’s “sole and exclusive” remedy. R.C. 124.341(D). Little, however, can be inferred from the absence of similar language in R.C. 4113.52.

For instance, it is possible that the General Assembly included the “sole and exclusive” language in R.C. 124.341 because that section comprehends parties subject to collective bargaining agreements, which generally provide grievance procedures as the exclusive remedy. Compare R.C. 4117.10(A) with R.C. 4113.53 (R.C. 4117.10[A] requires the General Assembly to specify when any other provision prevails over that section’s general policy favoring resolution pursuant to an agreed-upon grievance procedure, while R.C. 4113.53 expressly permits private employees subject to a collective bargaining agreement to process their grievance through the channels provided in the agreement.). In any event, it is unsound to suggest that the “sole and exclusive” language was purposely excluded from R.C. 4113.52 to permit nonexistent alternative remedies. After all, the legislature enacted R.C. 4113.52 in response to this court’s decision in Phung, supra, 23 Ohio St.3d 100, 23 OBR 260, 491 N.E.2d 1114, paragraph one of the syllabus, declaring that common law offered whistleblowers no protection against discharge from at-will employment.

Having traced the exclusivity presumption, the Trader dissent noted that whistleblower claims were not actionable at common law and that the enactment of R.C. 4113.52 was a legislative response to this court’s holding in Phung. Trader, 74 Ohio St.3d at 1286-1287, 660 N.E.2d at 737. The dissent went on to present the legislative history of R.C. 4113.52, demonstrating that the General Assembly considered and rejected provisions for actual and punitive damages, id. *169at 1287, 660 N.E.2d at 738,10 and adopted Senate amendments, enacted in R.C. 4113.52(D), requiring that whistleblower remedies be limited to those identified in the statute. Id. at 1287, 660 N.E.2d at 738.11

By contrast, neither the appellant nor the majority in his stead has demonstrated legislative intent sufficient to overcome the presumption that R.C. 4113.52(E) is intended to provide a whistleblower with an exclusive remedy for violations of that section. Therefore, the remedy provided in R.C. 4113.52 must be taken as exclusive.

II

SUMMARY JUDGMENT

I also dissent on the basis that the trial and appellate courts correctly held that Kulch failed to withstand the summary judgment challenge of Structural Fibers. I am compelled to address these issues separately, given that the majority eviscerates summary judgment in order to reach its ultimate holding that expands Greeley and its progeny.

It is of critical importance to note at the outset that without the R.C. 4113.52(A)(2) claim, this case is indistinguishable from Contreras, 73 Ohio St.3d 244, 652 N.E.2d 940. Knowing that the plausibility of Kulch’s Greeley claim is entirely dependent upon the (A)(2) claim, the majority permits its survival at the expense of the continued vitality of summary judgment practice.

For the reasons expressed in the dissent to Dresher v. Burt (1996), 75 Ohio St.3d 280, 299-302, 662 N.E.2d 264, 278-280, I would find that Structural Fibers satisfied its burden under summary judgment when it repeatedly asserted that it was entitled to judgment as to Kulch’s entire R.C. 4113.52 whistleblower claim. As acknowledged by Kulch in his brief to this court, Structural Fibers specifically pointed to both the R.C. 4113.52(A)(1)(a) and the (A)(2) claims. In Kulch’s brief, *170he admits “it is clear that a separate claim under section (A)(2) was made by plaintiff.* * * Even defendant pointed out that fact in its own summary judgment motion.” (Emphasis added.)

Nonetheless, the majority, relying and expanding upon the plurality opinion in Dresher, holds that Structural Fibers is not entitled to summary judgment on Kulch’s (A)(2) claim because Structural Fibers never discharged its burden to produce evidence to disprove it. This holding is specious in light of the fact that throughout the proceedings in this case, Kulch has argued his case solely as an R.C. 4113.52(A)(1)(a) claim. For example, prior to filing its motion for summary judgment, Structural Fibers argued under Civ.R. 12(B)(6) that Count One of the complaint failed to support Kulch’s claim that his employer retaliated against him ‘“for making any report authorized by division (A)(1) or (2).'” (Emphasis added.) In response, Kulch addressed only (A)(1)(a), citing that subsection at least nine times and never once citing (A)(2).

Moreover, oral argument before this court focused entirely on whether the reporting requirements of (A)(1)(a) had been followed and when the twenty-four-hour waiting period of (A)(1)(a) commenced, without a single reference to (A)(2) or its reporting requirements.

Although Kulch now admits that he was on notice that Structural Fibers moved for summary judgment on his entire R.C. 4113.52 claim, Kulch never argued he could report directly to OSHA under (A)(2). If Kulch wanted to maintain his claim that (A)(2) permitted him to report directly to OSHA, he should have so argued in response to the motions to dismiss or for summary judgment rather than on appeal.

The majority’s application of Dresher to hold that Structural Fibers should be denied summary judgment because it failed to disprove a claim that Kulch never identified further debilitates the purposes of summary judgment. Summary judgment allows the early assessment of the merits of claims, pre-trial dismissal of meritless claims, and defining and narrowing issues for trial. However, none of these goals can be accomplished if the plaintiff need not identify its specific theory of recovery.

As a result of the holdings in both Dresher and this case, to be entitled to summary judgment, defendant-movants must not only disprove plaintiffs case, they must also define plaintiffs case. In contrast, plaintiff-nonmovants have no duty to delineate their theories or to disclose the evidence to support them prior to trial. Instead, under the majority holding, it is the trial court that must identify all of plaintiffs possible claims and theories when considering summary judgment. If the lesson in Dresher was to object to interrogatories, the lesson here is to plead vaguely. Id., 75 Ohio St.3d at 302, 662 N.E.2d at 280 (Cook, J., dissenting). The majority errs in not requiring the same clarity and specificity of *171plaintiffs in their pleading and motion practice that it seeks to require of defendants.

Kulch’s failure to demonstrate that his claims under the Whistleblower Statute survived because he could directly report to OSHA under (A)(2) should prove fatal not only to the (A)(2) claim, but also to his Greeley claim. Contreras, supra.

Ill

CONCLUSION

In accordance with the foregoing, I would affirm the judgment of the court of appeals which affirmed summary judgment in favor of this employer on the Greeley claim.

Moyer, C.J., and Lundberg Stratton, J., concur in the foregoing opinion.

. The majority points to this court’s opinion in Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d 150, as support for its adoption of the “public policy” embodied in Section 660(c), Title 29, U.S.Code, to create a cause of action cognizable in Ohio courts. The Mers citation of Section 660(c), however, was included to point out that at-will employment is not without exception. Id. at 103, 19 OBR at 263-264, 483 N.E.2d at 153, fn. 2. Mers was not a Greeter-type case authorizing relief based on the “public policy” embodied in a statute or comparable authority. Instead, Mers defined what inquiries were appropriate in determining whether an employment contract (implied or express) exists and recognized a cause of action for at-will employees based on promissory estoppel. Section 660(c) was cited only as a statutory remedy available despite at-will employment. Mers did not suggest that a plaintiff could recover pursuant to Section 660(c) outside the limits of the federal remedy.

. The majority also cites Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, 543 N.E.2d 1212, as being supportive of this proposition. Helmick, however, held that intentional torts long recognized at common law, although keyed to sexual misconduct, were not preempted by the limited remedies available at that time pursuant to R.C. 4112.05(G). Id. at 134-135, 543 N.E.2d at 1216. In the instant case, we are not dealing with a common-law tort independent of the statutory violation. To the contrary, the Greeley claim is derivative of the statutory violation.

. The majority misreads R.C. 4113.52(E) when it states that “the statute permits the court to fashion an award based upon whatever the court deems to be appropriate.” The pertinent portion of division (E) reads: “The court, in rendering a judgment for the employee in an action brought pursuant to division (D) of this section, may order, as it determines appropriate, reinstatement of the employee to the same position he held at the time of the disciplinary or retaliatory action and at the same site of employment or to a comparable position at that site, the payment of back wages, full reinstatement of fringe benefits and seniority rights, or any combination of these remedies. ” (Emphasis added.) Upon reading all the pertinent statutory language, it is clear that a court may order, as appropriate, any combination of the remedies listed in that division. Division (E) does not authorize a court to award extrastatutory remedies that it deems appropriate.

. It is noteworthy that the lead opinion in Painter, supra, echoed the following language from Smorgala, supra, 50 Ohio St.3d at 223, 553 N.E.2d at 674, in denying the Greeley claim under consideration: “Where the General Assembly has spoken, and in so speaking violated no constitutional provision, the courts of this state must not contravene the legislature’s expression of public policy. ‘Judicial policy preferences may not be used to override valid legislative enactments, for the General Assembly should be the final arbiter of public policy.’ ” Painter, 70 Ohio St.3d at 385, 639 N.E.2d at 57.

. Despite the majority’s attempt to undermine the sound reasoning in the Trader dissent by pointing out that footnote 2 of Rheinecker v. Forest Laboratories (S.D.Ohio 1993), 826 F.Supp. 256, 258, was inaccurate and corrected in Rheinecker v. Forest Laboratories, Inc. (S.D.Ohio 1994), 855 F.Supp. 913, the majority concedes, as it must, that the General Assembly considered and rejected a broader range of remedies than those set forth in R.C. 4113.52(E). In fact, a review of H.B. No. 406 reveals that the bill, as introduced, would have authorized an award of actual damages, while the enacted version of that statute limits the available remedies to those listed in Division (E) of R.C. 4113.52.

. As noted in footnote 2 to Trader, supra, 74 Ohio St.3d at 1287, 660 N.E.2d at 738, “The House accepted all Senate amendments to the bill. (142 Ohio House Journal 1581 [March 10,1988].) See R.C. 4113.52(E). This amendment distinguishes the whistleblower statute from statutes such as R.C. 4112.99, which authorizes a court to award specified remedies ‘or any other appropriate relief.’ ”