Relying on Ohio’s public policy favoring workplace safety, the Tenth District Court of Appeals in Blackburn v. American Dental Centers, et al. recently concluded that evidence that employees were terminated for complaining about work conditions and practices that were unsafe to both the employees and patients of a dental office may support a claim of wrongful discharge in violation that public policy.
Heather Esposito began working for American Dental Centers (“ADC”) in 1989 as a dental hygienist, and Barbara Blackburn began working for ADC in 2001 as a dental assistant. Dr. Sherman Allen joined the practice in June 2002. After Dr. Allen was hired, Ms. Blackburn and Ms. Esposito began investigating his background. They discovered Dr. Allen had lost his dentistry license in Michigan, been convicted of several criminal offenses, and was not supposed to leave the state of Michigan. Both also claimed they witnessed Mr. Allen engaging in substandard and dangerous patient treatment and performing unnecessary dental procedures. They further alleged they witnessed Mr. Allen at work intoxicated, hungover, smelling of alcohol, and falling asleep while examining his patients.
Ms. Blackburn and Ms. Esposito claimed they informed their supervisors about the issues and in return were threatened, retaliated against, received reduced wages and were terminated. In fall of 2002, ADC terminated Dr. Allen’s employment and shortly thereafter, terminated Ms. Esposito’s employment. Ms. Blackburn remained employed. In late April of 2003, Blackburn wrote a letter to ADC discussing Dr. Allen’s misconduct, and in May, another employee wrote a letter to ADC indicating she and Blackburn would not return to work until they felt safe. Blackburn did not return to work at ADC, which ADC described as job abandonment, and she alleges was termination.
Blackburn and Esposito File Suit
On January 4, 2008, Ms. Blackburn and Ms. Esposito filed a complaint against ADC alleging, among other things, wrongful termination, violation of public policy, and violations of the whistleblower statute. ADC filed a motion for summary judgment in November 2009, and the trial court granted the motion, finding Esposito and Blackburn were not able to demonstrate the necessary elements of a whistleblower claim.
Esposito and Blackburn appealed to the Tenth District Court of Appeals. The court upheld the trial court’s ruling on all claims, including the whistleblower claims; however, the Tenth District found the trial court erred when it held that as a matter of law Esposito and Blackburn had not sufficiently pleaded the claims for public policy wrongful discharge, based on the drug and substance abuse in the workplace, patient safety, and workplace safety. The court remanded the case back to the trial court, which again sustained ADC’s motion for judgment as a matter of law. Plaintiffs again appealed.
Relying on established Ohio law setting forth the four elements of a wrongful discharge claim based on public policy, the appellate court required Esposito and Blackburn to demonstrate 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),
- Dismissal of the employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize that public policy (the “jeopardy” element),
- The plaintiffs’ dismissal was motivated by conduct related to the public policy (the “causation” element), and
- The employer lacked an overriding legitimate business justification for the dismissal (the “overriding justification” element).
The appellate court determined the first two elements had been met and charged the trial court with determining the last two elements.
Esposito and Blackburn argued three clear public policies existed 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. Both former employees claimed to have informed ADC of a specific incident when Dr. Allen physically accosted and harassed them and an incident when a dentist brought in a machete to confront Dr. Allen. In support of their efforts to establish a clear public policy, Esposito and Blackburn cited to two Ohio statutory provisions, one which outlines the “Duty of the employer to protect employees and frequenters” and another which outlines the “Duty of employer to furnish safe place of employment.”
The Tenth District Court of Appeals found Esposito and Blackburn had demonstrated the clarity element, because they were able to show the statutes, when taken together establish the existence of a clear public policy favoring workplace safety for employees and frequenters. The court also found that the plaintiffs had set forth sufficient evidence to establish the jeopardy element by providing evidence that Dr. Allen had reported to work intoxicated or hung over and complaints that he had botched simple procedures and disfigured patients.
Finding both the clarity and jeopardy elements had been met, the court remanded the case to the trial court to consider the final two elements of the wrongful discharge test. The Tenth District found the trial court erred in finding there is no Ohio public policy against retaliation by employers against employees who report workplace conditions that jeopardize staff and dental patient safety.
Takeaway for employers
Plaintiffs’ failure to establish a statutory whistleblower claim under Ohio law will not absolve employers of liability if the plaintiffs can establish a public policy wrongful termination claim. Employers must take employee complaints seriously and timely investigate allegations. Upon completing the investigation, the employer should immediately take any necessary steps to address any identified unsafe conditions . In addition, employers may not retaliate against employees who have lodged complaints in good faith. If an employer must terminate an employee who has recently lodged a complaint, employers should be sure the grounds for termination, separate and apart from the complaint, are well-documented.