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An Ohio appellate court found that evidence that employees were terminated for complaining about unsafe work conditions and practices could support a claim of wrongful discharge in violation of public policy.
American Dental Centers (ADC) has several dental offices in Ohio and Pennsylvania, employing dentists and staff at each location. Heather Esposito began working for ADC as a dental hygienist in 1999, and Barbara Blackburn began working as a dental assistant in 2001.
After ADC hired Dr. Sherman Allen in June 2002, Blackburn and Esposito began investigating his 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. Blackburn and Esposito also claimed to have witnessed Allen engage in substandard and dangerous patient treatment that resulted in permanent damage or loss of teeth.
Blackburn and Esposito claimed that they informed their supervisors about these Allen’s behavior. Instead of acting to protect patients from this conduct, ADC management and staff retaliated against Blackburn and Esposito by harassing them, 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. ADC terminated Allen's employment between September and November 2002. ADC terminated Esposito's employment on Nov. 7, 2002.
Blackburn continued to work for ADC and wrote the management a letter on April 28, 2003, discussing Allen's past professional misconduct. On May 5, 2003, Blackburn appeared, with her identity disguised, on a local television news program to discuss the unsafe conditions at ADC, including Allen's dangerous and unethical treatment methods. A co-worker, Janise Boggs, wrote a letter to ADC on May 6, 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 ADC claims Blackburn abandoned her position.
On Jan. 4, 2008, Blackburn and Esposito filed a complaint against ADC for wrongful termination in violation of public policy, violations of the Ohio whistleblower statute, negligent hiring and retention in employment, slander and tortious interference with business relationships and employment, and negligent or intentional infliction of emotional distress. ADC filed a motion for summary judgment. The trial court granted ADC’s motion for summary judgment on the whistleblower claims, public policy wrongful termination claims, negligent or intentional infliction of emotional distress claims, slander claims and certain other claims. The parties agreed to dismiss any remaining claims.
Blackburn and Esposito appealed. The appellate court found that the trial court erred in granting summary judgment on the claim for public policy wrongful discharge based on drug and substance abuse in the workplace, patient safety, and workplace safety. The appellate court remanded the matter for the trial court. On June 19, 2013, the trial court issued a decision again granting ADA’s motion for summary judgment. Blackburn and Esposito filed a second appeal.
To establish a prima facie claim of wrongful discharge in violation of public policy, an 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 would jeopardize that public policy (the "jeopardy" element), (3) that the employee’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). The court said that the clarity and jeopardy elements are questions of law to be decided by the court.
In order to satisfy the clarity element, an employee 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,” according to the appellate court. Blackburn and Esposito cited two specific sections of the Ohio Revised Code, R.C. 4101.11, which requires an employer to protect its employees, and 4101.12, which requires an employer to provide a safety place of employment, as specific statutory support for their proposed public policy promoting workplace safety for employees and patients. The court found Blackburn and Esposito met the clarity element.
Because the materials submitted by Blackburn and Esposito made it clear that their terminations were in direct response to their attempts to warn their employer about the grossly substandard care provided by Allen to ADC patients, the court found that the jeopardy element of the wrongful termination claim was also satisfied. The appellate court remanded Blackburn’s and Esposito’s claims for wrongful discharge in violation of public policy to the trial court.
Blackburn v. Am. Dental Ctrs., Ohio Ct. App., No. 13AP-619 (Dec. 2, 2014).
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