The Ohio Supreme Court recently issued its second opinion this year addressing the tort of wrongful discharge in violation of public policy. In this case, the court clarified that: “[t]o satisfy the clarity element of a claim of wrongful discharge in violation of public policy, a terminated employee must ‘articulate a clear public policy by citation to specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law.’” Dohme v. Eurand America, Inc., No. 2011-Ohio-4609, Ohio Supreme Court (September 15, 2011).
Randall Dohme was employed by Eurand America, Inc. Dohme was discharged after failing to follow his employer’s instruction that any contact he should have with an insurance adjuster who was conducting an on-site evaluation of the employer’s facility be made only through certain specifically-designated individuals. Despite this directive, Dohme communicated directly with the adjuster, stating that the adjuster “might want to find out what happened with [a] [fire] inspection [that was removed from the computer system].” Dohme believed that someone at Eurand America purposefully made the fire inspection report disappear and was “trying to make it look like” Dohme was not doing his job. As a result of his unauthorized communication with the insurance adjuster, Dohme was fired for insubordination.
Dohme subsequently sued Eurand America alleging that he was wrongfully discharged in violation of public policy for communicating workplace safety concerns to the insurance adjuster. He claimed that his discharge for his “perceived role in an on-site insurance adjuster’s discovery of certain violations . . . jeopardized workplace safety and placed employees in [an] unreasonable and dangerous setting.” However, Dohme did not cite to any specific statutory, constitutional or regulatory provisions that he claimed reflected Ohio’s public policy in favor of workplace safety.
In his summary judgment briefings, Dohme attempted to cure this defect by citing to language in the syllabus of the Ohio Supreme Court’s decision in Pytlinski v. Brocar Prods., Inc. stating that: “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 argued that his citation to Pytlinski was sufficient to satisfy the clarity element of a public policy claim. The Ohio Supreme Court disagreed, noting that in Pytlinski the plaintiff alleged his employer violated OSHA regulations. Here, the court found that Dohme’s vague assertion of a generalized public policy favoring workplace safety was insufficient to establish a public policy claim, notwithstanding his citation to Ohio Supreme Court case law stating that such a public policy existed.
While this decision does not change the fundamental law underlying wrongful discharge claims, Todd Penney, attorney for Eurand America, believes “the opinion will have more impact than people think. Before Dohme was decided, there was significant risk that virtually any fact pattern could lead to a wrongful discharge claim because there was no requirement that plaintiffs specify a particular statute or regulation as the basis for their claim.” Dohme closes this loophole in Ohio’s public policy jurisprudence by requiring that plaintiffs cite to specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations or the common law. And where a plaintiff fails to do so, “a court may not presume to sua sponte identify the source of that policy. . . . An appellate court may not fill in the blanks on its own motion.”
The court leaves open, however, the question of whether a statute, constitutional provision or administrative regulation that is no more specific in setting forth a particular public policy than the language cited from the syllabus in Pytlinski may satisfy the clarity element.