Dudley v. Siler Excavation Servs., L.L.C.

[Cite as Dudley v. Siler Excavation Servs., L.L.C., 2023-Ohio-666.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

BRANDIE DUDLEY, :

Appellant, : CASE NO. CA2022-06-030

: OPINION
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:

SILER EXCAVATION SERVICES, LLC, :

Appellee. :

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2021-CVH-00907

Finney Law Firm, LLC, and Stephen E. Imm and Matthew S. Okiishi, for appellant.

McCaslin, Imbus & McCaslin, and Michael P. Cussen and R. Gary Winters, for appellee.

PIPER, P.J.

{¶1} Appellant, Brandie Dudley, appeals a decision of the Clermont County Court

of Common Pleas granting a Civ.R. 12(B)(6) motion to dismiss in favor of appellee, Siler

Excavation Services, L.L.C.

{¶2} Dudley was an employee of Siler Excavation. She began her employment in

December 2020 performing various duties, including human resource responsibilities and
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managing payroll. In August 2021, a co-worker named Blake left work early due to illness.

Blake later testified positive for COVID-19.

{¶3} Blake informed Dudley of his test result. Dudley advised Blake to stay away

from work for 10 days consistent with then-current guidance from the Centers for Disease

Control ("CDC"). Mike Siler, the owner of Siler Excavation told Blake that he wanted him

back to work the following Monday.1 Blake informed Dudley of Siler's request. Dudley then

told Siler personally that Blake's positive diagnosis meant that Blake needed to remain away

from work for 10 days under the CDC's guidance.

{¶4} According to the amended complaint, when Dudley told Siler that Blake

should not come to work, Siler became upset and told Dudley that "[i]t's my f---ing company

and I'll do what I want." Siler then told Dudley that "he could not trust her to go to the CDC"

and that she needed to pack her things and leave.

{¶5} Dudley filed a complaint for wrongful termination against Siler Excavation.

After answering the complaint, Siler Excavation filed a Civ.R. 12(B)(6) motion to dismiss.

Dudley could not dispute that she was an at-will employee of Siler Excavation. However,

she claimed that her dismissal met the exception to the employment-at-will doctrine where

an employer discharges an employee in contravention of a sufficiently clear public policy.

{¶6} Following briefing, the trial court granted the Civ.R.12(B)(6) motion to dismiss.

In so doing, the trial court found that Dudley failed the first element of the public policy

exception, the clarity element, which requires the employee demonstrate that a "clear public

policy existed and was manifested in a state or federal constitution, statute or administrative

regulation, or in the common law." Dudley now appeals, raising a single issue for

determination:

1. There is no information stating what day of the week Blake became ill or tested positive for COVID-19.

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{¶7} WHETHER THE TRIAL COURT ERRED IN RULING THAT PLAINTIFF

FAILED TO SATISFY THE "CLARITY" ELEMENT OF A CLAIM FOR WRONGFUL

TERMINATION IN VIOLATION OF OHIO PUBLIC POLICY, IN LIGHT OF OHIO'S CLEAR

PUBLIC POLICIES ENCOURAGING SAFETY IN THE WORKPLACE AND FORBIDDING

RETALIATION AGAINST THOSE WHO EXPRESS CONCERNS AIMED AT

CORRECTING UNSAFE OR UNHEALTHY WORKING CONDITIONS.2

{¶8} In her sole assignment of error, Dudley argues the trial court erred by granting

the motion to dismiss.

Standard of Review

{¶9} Civ.R. 12(B)(6) authorizes the dismissal of a complaint if it fails to state a claim

upon which relief can be granted. Marchetti v. Blankenburg, 12th Dist. Butler No. CA2010-

09-232, 2011-Ohio-2212, ¶ 9. "In order to prevail on a Civ.R. 12(B)(6) motion, 'it must

appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling

relief.'" Id., quoting DeMell v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 88505, 2007-

Ohio-2924, ¶ 7. In ruling on a complaint under Civ.R. 12(B)(6), the trial court must presume

that all factual allegations in the complaint are true and draw all reasonable inferences in

favor of the nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).

However, unsupported legal conclusions are not accepted as true for purposes of a motion

to dismiss. Schulman v. Cleveland, 30 Ohio St.2d 196, 198 (1972).

{¶10} "A trial court's order granting a motion to dismiss pursuant to Civ.R. 12(B)(6)

is subject to de novo review on appeal." BAC Home Loans Servicing, L.P. v. Kolenich, 194

Ohio App.3d 777, 2011-Ohio-3345, ¶ 35 (12th Dist.). This court therefore must

2. While Dudley raises an "issue" in her appellate brief, she fails to identify it as an "assignment of error."
Dudley's brief therefore does not conform to our local rules. Loc.R. 11. Nevertheless, we address the issue
raised, which we consider her assignment of error.

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independently review the complaint to determine the appropriateness of the trial court's

dismissal. Fontain v. H&R Cincy Properties, L.L.C., 12th Dist. Warren No. CA2021-02-015,

2022-Ohio-1000, ¶ 56.

Wrongful Discharge

{¶11} There is no dispute that Dudley was an at-will employee. Under the common

law doctrine of at-will employment, Dudley could be fired at the will of Siler Excavation.

"However, if an employee is discharged in contravention of a clear public policy articulated

in the Ohio or United States Constitution, federal or state statutes, administrative rules and

regulations, or common law, a cause of action for wrongful discharge in violation of public

policy may exist as an exception to the general rule." McJennett v. Lake Waynoka Property

Owners, 12th Dist. Brown No. CA2013-05-006, 2013-Ohio-5767, ¶ 12, citing Painter v.

Graley, 70 Ohio St.3d 377 (1994), paragraph three of the syllabus.

{¶12} To establish a prima facie claim of wrongful discharge in violation of public

policy, the employee must demonstrate the following four elements:

1. That clear public policy existed and was manifested in a state
or federal constitution, statute or administrative regulation, or in
the common law (known as the clarity element).

2. That dismissing employees under circumstances like those
involved in the plaintiff's dismissal would jeopardize the public
policy (known as the jeopardy element).

3. The plaintiff's dismissal was motivated by conduct related to
the public policy (known as the causation element).

4. The employer lacked overriding legitimate business
justification for the dismissal (known as the overriding
justification element).

Rose v. CTL Aerospace, Inc., 12th Dist. Butler No. CA2011-09-171, 2012-Ohio-1596, ¶ 22.

The clarity and jeopardy elements involve questions of law, whereas the causation and

overriding justification elements involve questions of fact. Collins v. Rizkana, 73 Ohio St.3d

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65, 69-70 (1995).

The Clarity Element

{¶13} As referenced above, to satisfy "the clarity element," an employee must show

that a clear public policy existed and was manifested in a state or federal constitution,

statute, or administrative rules and regulations, or in the common law. McJennett at ¶ 12.

The Ohio Supreme Court in Dohme recognized the possibility that a claim for wrongful

discharge in violation of Ohio's public policy favoring workplace safety may exist. Dohme

v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, ¶ 24. However, the Dohme court

held that the plaintiff in that case failed to satisfy the clarity element. Id.

{¶14} In Dohme, the employee claimed that he was terminated in violation of Ohio's

public policy favoring workplace safety because he was discharged after expressing fire

safety concerns to an insurance company representative who was inspecting the facility.

Id. at ¶ 4. As the source of his public policy claim, he recited syllabus language from the

Ohio Supreme Court's decision in Pytlinski v. Brocar Prods., Inc., 94 Ohio St.3d 77 (2002),

which stated: "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." Dohme at ¶ 20. The employee also cited generally to the plurality opinion of

Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 152 (1997). Dohme at ¶ 20.

{¶15} The Court in Dohme held that "the mere citation of the syllabus in Pytlinski is

insufficient to meet the burden of articulating a clear public policy of workplace safety." Id

at ¶ 21. The Court explained that "as the plaintiff, Dohme has the obligation to specify the

sources of law that support the public policy he relies upon in his claim." Id. at ¶ 22.

Referencing its prior decisions in Pytlinski and Kulch, the Court stated that both those

plaintiffs alleged that their respective employers had violated federal OSHA regulations. Id.

at ¶ 21. In Pytlinski, the terminated employee alleged that he provided his employer with a

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memorandum detailing the violation of OSHA regulations occurring in the workplace.

Pytlinski at 78. Similarly, in Kulch the terminated employee alleged that after his verbal

complaints of the health violations were ignored by the employer, he filed a written report

with OSHA, which resulted in an on-site inspection and OSHA finding several violations of

its standards. Kulch at 135.

{¶16} Unlike those cases, the Court in Dohme found that the plaintiff failed to cite

any specific, applicable source of law and therefore could not satisfy the clarity element.

Dohme, 2011-Ohio-4609 at ¶ 28. In so doing, the supreme court stated that "[a] general

reference to workplace safety is insufficient to meet the clarity requirement." Id. at ¶ 24.

Accordingly, Dohme holds that an employee cannot simply allege that clear public policy

exists because of a "general societal interest," but rather must set forth a specific law

evincing public policy. Creveling v. Lakepark Industries, Inc., 6th Dist. Huron No. H-20-013,

2021-Ohio-764, ¶ 52.

Dudley's Claimed Public Policy Exception

{¶17} Dudley maintains that she cited "numerous specific statutes and regulations

that supported the clear existence of the public policy at issue." In her complaint, Dudley

states that "[a] clear public policy in support of a safe workplace exists in the State of Ohio,

manifested in the federal Occupational Safety and Health Act, Ohio statutory law, and

elsewhere." She further alleges that the clear public policy "encourages safety in the

workplace and forbids retaliation against those who express safety concerns aimed at

correcting unsafe or unhealthy working conditions." Dudley maintains that she was

terminated because she expressed a concern about a workplace condition affecting health

and safety when "she told her boss that an employee infected with a potentially fatal virus

should be quarantined for the recommended period." In her amended complaint, Dudley

stated:

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A clear public policy in support of a safe workplace exists in the
State of Ohio, manifested in the federal Occupational Safety and
Health Act, Ohio statutory law, and elsewhere. This public
policy is demonstrated through any one or all of the following:
28 U.S.C. § 651, et seq., 28 U.S.C. § 654, 28 U.S.C. § 660(c),
29 CFR 1903.35(b)(1), 29 CFR 1904.36, Ohio Rev. Code
4101.11 and 4101.12, and the Ohio Supreme Court's decisions
in Kulch v. Structural Fibers, 78 Ohio St.3d 134, 152 (1997) and
Ptylinski v. Brocar Prods., 94 Ohio St.3d 77, 79 (2002).

{¶18} On appeal, Dudley asserts "it is clear that Ohio intended for Covid-positive

employees to isolate for a period of time, in the interests of protecting the health and safety

of the broader workforce." Dudley points to then-current guidance from the Ohio

Department of Health as part of Ohio's "Responsible Restart," which "recommended 10

days of isolation for employees with Covid-19." (Emphasis added.) She maintains that she

was "acting in furtherance of that clearly articulated Ohio public policy when she opposed

an infected and contagious employee returning to the workplace prematurely" and that her

termination violated that clear public policy.

Federal Provisions (OSHA)

{¶19} Following review, we find none of the various provisions or cases cited by

Dudley express a clear public policy applicable to her in this case. Dudley's references to

"workplace safety" are the same general arguments made by the plaintiff in Dohme and

were found to be insufficient to meet the clarity element of a wrongful discharge claim.

{¶20} Dudley argues that 29 U.S.C. 651, 654, and 660(c) demonstrate a clear public

policy for purposes of establishing the clarity element.3 It is true that the "OSH Act" was

enacted for workplace safety. The statute reveals that its declared purpose is "to assure

so far as possible every working man and woman in the Nation safe and healthful working

3. We agree with the trial court that citations to Chapter 28 of the U.S. Code have no application to this case.
However, the parties below agreed that Dudley meant to cite to the provision contained in Chapter 29, the
OSH Act. Therefore, we will consider those provisions which were argued below.

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conditions." 29 U.S.C. 651(b). To that end, 29 U.S.C. 651 sets forth 13 broad policy

provisions designed for general health and safety of workers in the United States, including

"encouraging employers and employees * * * to reduce the number of occupational safety

and health hazards at their places of employment." Id. at (b)(1). Similarly, 29 U.S.C. 654

provides:

(a) Each employer—

(1) shall furnish to each of his employees employment
and a place of employment which are free from
recognized hazards that are causing or are likely to
cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health
standards promulgated under this Act.

(b) Each employee shall comply with occupational safety and
health standards and all rules, regulations, and orders issued
pursuant to this Act which are applicable to his own actions and
conduct.

29 U.S.C. 660(c)(1) makes it illegal to terminate an employee in retaliation for filing a

complaint or instituting a proceeding with OSHA.

{¶21} The United States Supreme Court has recently provided guidance

distinguishing between the spheres of workplace safety and public health in light of COVID-

19. See Nat'l Fed'n of Indep. Bus. v. DOL, OSHA, __U.S.__, 142 S. Ct. 661 (2021). In

NFIB, the Supreme Court stayed enforcement of a rule issued by OSHA requiring

employers to enforce a mandatory COVID-19 vaccination policy. Id. at 663. In so doing,

the Court emphasized the "crucial distinction" "between occupational risk and risk more

generally." Id. at 666. To be enforceable, workplace safety standards must address

occupation-specific risks that employees face at work. The risks must be related in a

"causal sense" to the workplace and these risks differ from everyday risks that all people

face. Id. Thus, a rule addressing the risks posed by COVID-19 is a permissible workplace

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safety standard under the OSH Act only "[w]here the virus poses a special danger because

of the particular features of an employee's job or workplace," such as where the employee

is a researcher working with the COVID-19 virus. Id. at 665-66.

{¶22} In contrast, public health measures addressing universal risks, like "crime, air

pollution, or any number of communicable diseases" are not occupational hazards. Id. at

665. Such threats do not have a causal relationship to the workplace but, instead, are

"hazards of daily life." Id. They do not become workplace hazards "simply because most

Americans have jobs and face those same risks while on the clock." Id. Because

"permitting OSHA to regulate the hazards of daily life" would "significantly expand OSHA's

regulatory authority without clear congressional authorization," the U.S. Supreme Court

concluded that the vaccine mandate "extend[ed] beyond the agency's legitimate reach." Id.

at 666.

{¶23} In light of NFIB, we reject Dudley's broad interpretation of state and federal

law as applying generally to COVID-19 hazards in the workplace. Notably, Dudley does

not claim that her employment involved an occupational risk more than can be characterized

as a hazard of daily life. "COVID-19 can and does spread at home, in schools, during

sporting events, and everywhere else that people gather." Id. at 665. There is nothing to

suggest COVID-19, or any other communicable disease or virus, poses a special danger

because of her job or workplace. COVID-19 is simply a hazard of daily life. The mere

citation to Pytlinski and Kulch, along with other OSHA provisions and regulations are

insufficient to meet the burden of articulating a clear public policy specific to workplace

safety in context of COVID-19. As the plaintiff, Dudley has the obligation to identify the

specific source of law that supports the public policy she relies upon in his claim. Dohme,

2011-Ohio-4609 at ¶ 22.

{¶24} In so holding, we find Dudley's reliance on recommendations published as

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"guidance" from the Ohio Department of Health's "Responsible Restart" is an insufficient

basis to support a clear public policy for purposes of meeting the clarity requirement.

Rather, her general suggestions of public policy effecting workplace safety are more similar

to the claims made by the plaintiff in Dohme. Id. (plaintiff claimed there was a public policy

favoring workplace fire safety, which was supported by citation to various state and federal

statutes and regulations).

{¶25} While the guidance provided by the Ohio Department of Health and the CDC

may have called for 10 days of isolation from employees with COVID-19, nothing in the

guidance cited by Dudley required businesses to adopt any particular protocol. Rather, the

guidance is comprised of "Universal Recommended Best Practices." In efforts to slow the

spread of COVID-19, the Ohio Department of Health also stated that employers could

choose to require masking, social distancing, and other COVID-19 mitigation measures,

such as testing. See also Arterbridge v. Wayfair, L.L.C., D.N.J. No. 1:21-cv-13306, 2022

U.S. Dist. LEXIS 33338, at *9-10 (Feb. 24, 2022). In other words, "businesses were and

are empowered to make their own choices" with respect to COVID-19 mitigation measures.

Id. Nothing that Dudley cites mandates any COVID-19 response—each workplace is

unique and free to respond as deemed appropriate.

{¶26} We likewise find that Dudley's reliance on OSHA egulations found in two

sections of the Code of Federal Regulations to be misplaced. 29 C.F.R. 1904.35 requires

employers to maintain records of work-related injuries and requires employees to

participate in the recordkeeping system by reporting work-related injuries and illnesses. 29

C.F.R. 1904.36 prohibits discrimination against an employee who reports a work-related

fatality, injury, or illness.

{¶27} In this case, Blake reported his illness to Dudley who told him to quarantine

for 10 days. When Blake later told Dudley that Siler wanted him back to work after the

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weekend, Dudley told Siler that Blake "should remain away from work for 10 days per the

CDC's guidance." For the reasons listed above, Dudley has not established that the

guidance provided by the CDC or the Ohio Department of Health amounted to a sufficient

articulation of public policy. Dudley was not terminated for reporting Blake's illness, but

upon her disagreement with her employer's COVID-19 response. As a result, we find the

federal authorities cited by Dudley, namely 29 U.S.C. § 651, 29 U.S.C. § 654, 29 U.S.C. §

660(c), 29 C.F.R. 1904.35, and 29 C.F.R. 1904.36 do not support her claim for meeting the

public policy exception to the employment at-will doctrine.

R.C. 4101.11 and R.C. 4101.12

{¶28} Dudley also cites two Ohio Revised Code sections to support her argument.

Similar to the federal authorities listed above, Ohio also has statutes involving the duty of

an employer to protect employees and frequenters and to furnish a safe place of

employment. The first, R.C. 4101.11, is titled "Duty of employer to protect employees and

frequenters" and states:

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.

The other provision, R.C. 4101.12 is titled "Duty of employer to furnish safe place of

employment" and states:

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

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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.

{¶29} There is a split of authority as to whether R.C. 4101.11 and 4101.12 satisfy

the clarity element of a public policy claim based upon workplace safety. The Sixth District

Court of Appeals stated that R.C. 4101.11 and 4101.12 were too "general and broad" to

support a claim for wrongful termination in violation of public policy. Whitaker v. FirstEnergy

Nuclear Operating Co., 6th Dist. Ottawa No. OT-12-021, 2013-Ohio-3856, ¶ 25. The Tenth

District Court of Appeals disagreed with Whitaker's conclusion that R.C. 4101.11 and

4101.12 are "too 'general and broad' to support" a claim for wrongful termination in violation

of public policy. Blackburn v. Am. Dental Ctrs., 10th Dist. Franklin No. 13AP-619, 2014-

Ohio-5329, ¶ 29.

{¶30} Several courts have recognized this split of authority. Rowe v. Hoist & Crane

Serv. Group, Inc., 8th Dist. Cuyahoga No. 110921, 2022-Ohio-3130, ¶ 30; Coldly v. Fuyao

Glass America, Inc., 2d Dist. Montgomery No. 29309, 2022-Ohio-1960, ¶ 40; Jones v.

Natural Essentials, 11th Dist. Portage No. 2021-P-0066, 2022-Ohio-1010, ¶ 67. However,

the issue of whether R.C. 4101.11 and 4101.12 satisfy the clarity element of an Ohio public

policy claim based upon workplace safety is not one we must decide in the instant action.

{¶31} This is because the facts in this case do not involve even a questionable

occupational safety hazard or workplace safety issue. As discussed, the supreme court in

Dohme stated that "[a] general reference to workplace safety is insufficient to meet the

clarity requirement." Dohme, 2011-Ohio-4609 at ¶ 24. As we have already determined,

Dudley's references to workplace safety relate to the general risk of COVID-19. Dudley's

suggestions of public policy involving COVID-19 fail for the same reasons plaintiff's claims

in Dohme failed.

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{¶32} Furthermore, although Whitaker and Blackburn may be in conflict, neither

case involved a communicable disease which is more accurately characterized as a general

health risk, not a specific workplace risk. For reasons stated above, providing a safe

workplace does not mean the elimination of every outside illness that could potentially enter

the workplace. See NFIB, 142 S.Ct. at 666. Creation of such a broad public policy

exception would be unworkable and significantly undercut the doctrine of at-will

employment. Jacobs v. Highland Cty. Bd. Of Commrs., 4th Dist. Highland No. 13CA20,

2014-Ohio-4194, ¶ 21-22. As such, any claimed public policy exception must be sufficiently

clear and narrowly applied. Petras v. 3G Operating Co., 11th Dist. Lake No. 2020-L-084,

2021-Ohio-473, ¶ 27. Dudley has failed to identify specific, clear, and applicable statutes,

rules or constitutional provisions to support her public policy claim and has, therefore, failed

to establish the clarity element.

{¶33} Since Dudley failed to meet the clarity element, the trial court did not err in

dismissing her claim for wrongful termination. The failure to meet any element of the public

policy exception is fatal to her claim for wrongful termination. No further consideration of

the remaining elements is required. Guardo v. Univ. Hosp. Geauga Med. Ctr., 11th Dist.

Geauga No. 2014-G-3178, 2015-Ohio-1492, ¶ 48 (no further analysis necessary where

appellant fails to satisfy the first element of her wrongful discharge claim). Accordingly, we

find Dudley's sole assignment of error is without merit.

{¶34} Judgment affirmed.

HENDRICKSON, J., concurs.

BYRNE, J., concurs separately.

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BYRNE, J., concurring separately.

{¶35} I concur with and fully join the court's opinion. I write separately, however, to

emphasize a simple point: mere guidance issued by the Ohio Department of Health, even

when related to a virus like COVID-19, is not law.

{¶36} As explained in the court's opinion, claims of wrongful discharge in violation

of public policy must be based on a "clear public policy [that] existed and was manifested

in a state or federal constitution, statute or administrative regulation, or in the common law."

McJennett, 2013-Ohio-5767, at ¶ 12. Dudley argues, in part, that the alleged public policy

supporting her wrongful termination claim is found in the Ohio Department of Health's

"Responsible Restart" guidance.

{¶37} Article II, Section 1 of the Ohio Constitution vests state legislative power in

the General Assembly, and in "the people," who can adopt legislation or a state

constitutional amendment by initiative, or repeal an existing statute by referendum. But the

"Responsible Restart" guidance is not found in the Ohio Constitution, was not part of a bill

passed by the General Assembly and signed by the Governor, and was not found in any

ballot initiative or referendum approved by the state's voters.

{¶38} An Ohio executive branch agency has the authority to issue regulations when

the General Assembly, by statute, delegates to the agency the authority to do so. See

TWISM Enters., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors,

Slip Opinion No. 2022-Ohio-4677, ¶ 30-32. Even when delegated such authority, the

agency must comply with certain administrative rulemaking requirements, including the

requirements of the Ohio Administrative Procedures Act, R.C. 119.01 through 119.14.

Critically, the "Responsible Restart" guidance on which Dudley relies, while issued by a

state executive branch agency, was not part of any regulation adopted pursuant to

administrative rulemaking requirements. The guidance is simply that: guidance, a

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suggestion. Mere guidance does not give rise to a public policy forming the basis for a

wrongful termination claim.

{¶39} Were we to find, as Dudley urges, that the "Responsible Restart" guidance at

issue here could serve as the public policy basis for a wrongful termination claim, we would

essentially be throwing aside the system of separation of powers created by the Ohio

Constitution. We would also create a means for the executive branch to create law by a

"backdoor" approach—that is, the executive branch could avoid the difficult work of passing

legislation in the General Assembly or completing the administrative rulemaking process,

and instead create law enforceable by the courts by simply issuing "guidance." This we

cannot do.

{¶40} Citizens may disagree about the advisability and efficacy of the executive

branch's "Responsible Restart" guidance. It is the job of the courts not to take a side in

such debates, but to apply the law as written. Here, no "state or federal constitution, statute

or administrative regulation, or [the] common law" serves as the basis for the public policy

on which Dudley purports to rely, and so we must affirm the trial court's decision.

McJennett, 2013-Ohio-5767, at ¶ 12.

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