Graham v. Planned Parenthood of Greater Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JENNIFER GRAHAM, :

:

Plaintiff, :

: Case No. 2:24-cv-1524

v. :

: Judge Algenon L. Marbley

PLANNED PARENTHOOD OF : Magistrate Judge Chelsey M. Vascura

GREATER OHIO, :

:

Defendant. :

OPINION & ORDER

This matter is before the Court on Defendant’s Motion to Dismiss (ECF No. 23). For the

reasons stated below, the Motion is GRANTED in part and DENIED in part. The Motion is

denied as to Counts IV and IX and granted as to Count XIII. Accordingly, Count XIII is

DISMISSED.

I. BACKGROUND

Plaintiff Jennifer Graham is a former employee of Defendant Planned Parenthood of

Greater Ohio (“PPGOH”). (ECF No. 21 ¶¶ 1, 11, 23). On April 2, 2024, Plaintiff brought this

action alleging reverse race discrimination and retaliation against PPGOH. (ECF No. 1 ¶ 1).

A. Position During Employment

Plaintiff, a White woman, is a Certified Nurse Practitioner (“CNP”) who was hired by

PPGOH on May 28, 2018. (ECF No. 21 ¶ 28). She worked in PPGOH’s surgery centers and family

planning clinics, and trained nurses, healthcare assistants, licensed nurse practitioners, and

students. (Id. ¶ 27).

Plaintiff alleges that, around August 2022, the President of PPGOH detailed a new strategic

plan to develop a Black Staff Equity Program. (Id. ¶ 33). She asserts that while she praised and

supported the initiative, she also “noted that diverse employees who were neither African

American nor white would not benefit from this program.” According to Plaintiff, her concerns

were ignored. (Id.).

In June 2022, Plaintiff alleges that the Director of Nursing recommended her for a

promotion, and that PPGOH considered her both a top candidate and the only qualified candidate

for the position. (Id. ¶ 34). On or about September 23, 2022, Plaintiff’s supervisor encouraged her

to apply for either the Director of Nursing position or the Director of Care Coordinator position.

(Id. ¶ 67). She was allegedly informed that she was the only CNP qualified for the Director of

Nursing role. As such, she applied and received repeated feedback from multiple supervisors that

she was the best candidate for the position. (Id. ¶¶ 68–69).

B. Injury and FMLA Leave

Plaintiff also claims that she fell and injured her ankle during a break at work, resulting in

multiple fractures and torn ligaments in her foot. (Id. ¶¶ 35–36). She was placed on medical leave

until June 22, 2022. Upon her return to work, she was medically restricted to a part-time schedule

and limited mobility for an indefinite period. (Id. ¶ ¶ 36–37).

Plaintiff alleges that PPGOH required her to exceed those medical limitations by requiring

frequent standing and walking as well as a full-time schedule. As a result, she had to purchase a

knee roller to perform her duties. (Id. ¶ 38). She also alleges that in October 2022, she was advised

that she would need surgery and that she would be unable to walk for around two months thereafter.

(Id. ¶ 39). She submitted a request for FMLA leave from the date of the surgery— November 22,

2022—through January 3, 2023. (Id. ¶ 40). Her supervisor allegedly questioned the amount of

leave requested and expressed frustration about her unavailability to train new employees and

stating, “that really changes things.” (Id. ¶ 41). PPGOH approved her leave on October 31, 2022.

(Id. ¶ 42).

C. Complaints at Work

In June 2022, PPGOH hired Brianna Frazier, an African American woman, as a healthcare

assistant. Plaintiff alleges that Frazier committed various work errors. (Id. ¶ 3). According to

Plaintiff, she and other diverse employees brought these errors to Frazier’s attention, but Frazier

“responded with open hostility and made no changes in her behavior.” (Id. ¶ 4). On behalf of the

entire staff, Plaintiff and her supervisor raised their concerns to PPGOH’s Practice Manager both

informally and through formal reporting measures. (Id.). Frazier was eventually removed from the

workflow and assigned to additional training. (Id. ¶ 5). Plaintiff alleges that, in response, Frazier

confronted her “aggressively” and made false accusations in retaliation. (Id.). Plaintiff then

submitted a complaint to PPGOH’s Vice President of Human Resources (“VP of HR”), who is

also an African American woman, detailing Frazier’s alleged performance issues and retaliatory

behavior. (Id.).

The complaints were referred to PPGOH’s Diversity, Equity, and Inclusion Officer (“DEI

Officer”), also an African American woman, for investigation. (Id. ¶ 6). Plaintiff alleges that during

their initial conversation, the DEI Officer “was aggressive and unprofessional,” “dismissed

Graham’s claims of Frazier’s performance deficiencies,” and “neglected to even interview any

other staff or review the supporting medical records.” She further claims that the DEI Officer “was

openly confrontational” and accused Plaintiff of making false claims against Frazier. (Id.).

Plaintiff later reviewed the DEI Officer’s social media account and found posts that she

alleges were “racist and evidenced a discriminatory animus toward white people.” (Id. ¶ 7). She

reported this conduct to the VP of HR, who then took over the investigation of Plaintiff’s

complaint. (Id.). Plaintiff, however, alleges that the investigation relied entirely on the DEI

Officer’s prior conclusions and that her own complaint was dismissed without independent review.

She also claims that the VP of HR never investigated her complaint against the DEI Officer. (Id.).

In or around September 2022, Plaintiff alleges that a staff meeting took place with Frazier

to address her performance issues, during which Frazier again acted “hostile and unreceptive to

feedback.” (Id. ¶ 8). Plaintiff met with the VP of HR to discuss both Frazier’s performance issues

and her own potential promotion to Director of Nursing. (Id. ¶ 9). Plaintiff asserts that rather than

discussing these topics, she was “ambushed” with “false accusations of unprofessional conduct”

and was informed she would not be promoted “despite being the only qualified candidate.” (Id.).

She also alleges that the VP of HR claimed to be unaware of Frazier’s performance deficiencies

and asked Plaintiff to document them, despite Plaintiff’s claim that she had been submitting such

complaints for months. (Id.). Plaintiff then documented and submitted reports evidencing

continued performance deficiencies through PPGOH’s database. When those complaints were not

addressed, Plaintiff escalated her concerns to the VP of HR’s supervisor. (Id. ¶ 10).

On November 18, 2022, just four days after she escalated her complaints and four days

before her FMLA leave was set to begin, Plaintiff was terminated. (Id. ¶¶ 11, 80, 82). PPGOH

claimed that her reports against Frazier “were retaliatory in nature and violated its ‘zero-tolerance’

policy prohibiting retaliation.” (Id. ¶¶ 11, 80).

D. Administrative Remedies

On May 16, 2023, Plaintiff filed a Charge of Discrimination against PPGOH with the Equal

Employment Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission

(“OCRC”). (ECF No. 23-1). Within the EEOC Charge, the section titled “Discrimination Based

On” reflects that Plaintiff checked the boxes for “race,” “retaliation,” and “other,” while notably

leaving the “disability” box unmarked. (Id.). In the section designated for detailing the

“particulars” of the charge, Plaintiff included 37 numbered paragraphs, which largely mirror the

factual allegations set forth in the Complaint. (Id.). These details include the issues involving

Frazier, both formal and informal complaints related to those issues, interactions with the DEI

Officer, and reports made to the VP of HR. Plaintiff also alleged retaliation based on her exercise

of FMLA leave, including a description of her work-related injury, the allegedly hostile response

to her FMLA request, and her termination occurring just four days before her scheduled leave.

(Id.). The EEOC subsequently dismissed the charge and issued a Notice of Right to Sue on January

4, 2024. (ECF No. 21, Ex. A).

On April 2, 2024, Plaintiff initiated this lawsuit against PPGOH, asserting claims for: “(1)

reverse race discrimination in violation of Ohio and federal law; (2) disability discrimination in

violation of Ohio and federal law; (3) retaliation in violation of Ohio and federal law; and (4)

interference in violation of the FMLA.” (ECF No. 1 ¶ 13). In response, PPGOH filed a partial

motion to dismiss, arguing that Plaintiff failed to exhaust administrative remedies with respect to

her disability discrimination claim and her retaliation claim related to requesting a reasonable

accommodation. (ECF No. 7).

Shortly before PPGOH filed its motion, on June 19, 2024, Plaintiff submitted a second

Charge of Discrimination with the EEOC and OCRC. (ECF No. 23-2). In this charge, Plaintiff

specifically alleged disability discrimination and retaliation related to her termination and the

denial of a reasonable accommodation. (Id.). She asserted her belief that PPGOH denied her a

reasonable accommodation for her disability and subsequently terminated her employment either

because of her disability or in retaliation for her request. (Id.). On September 12, 2024, the OCRC

issued its Letter of Determination notifying Plaintiff that she exhausted her administrative

remedies with respect to her state law disability claims set forth in Counts V and X. (ECF No. 21,

Ex. B).

On September 24, 2024, Plaintiff filed an Amended Complaint to reflect the exhaustion of

administrative remedies. (ECF No. 21). The Amended Complaint asserts thirteen causes of action,

including: (1) race discrimination in violation of 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981, and

Ohio Rev. Code § 4112.02(B); (2) disability discrimination in violation of 42 U.S.C. §§ 12111, et

seq., and Ohio Rev. Code § 4112.02(B); (3) retaliation in violation of 42 U.S.C. §§ 2000e, et seq.,

42 U.S.C. §§ 1981-82, and Ohio Rev. Code § 4112.02(I); (4) retaliation for requesting a reasonable

accommodation in violation of 42 U.S.C. § 12203 and Ohio Rev. Code § 4112.02(I); (5)

interference with entitlement to leave under the Family and Medical Leave Act (“FMLA”) in

violation of 29 U.S.C. § 2615(a)(1); (6) retaliation in violation of the FMLA 29 U.S.C. §

2615(a)(2); and (7) retaliation in violation of public policy ensuring patient safety. (ECF No. 21).

PPGOH now moves to dismiss, with prejudice, three specific claims: the disability

discrimination and retaliation claims under the Americans with Disabilities Act (“ADA”) (Counts

IV and IX); and the claim for retaliation in violation of public policy ensuring patient safety (Count

XIII). (ECF No. 23). PPGOH argues that Counts IV and IX must be dismissed because Plaintiff

failed to exhaust her administrative remedies under the ADA. It also moves to dismiss Count XIII,

asserting that the claim is improperly based on inapplicable premises liability statutes and fails to

state a cognizable claim under Ohio law. (ECF No. 23).

II. STANDARD OF REVIEW

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of the complaint and permits dismissal of a complaint for “failure to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). For purposes of this motion to dismiss, the

Court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations

as true, and draw all reasonable inferences in favor of the plaintiff.” In re Travel Agent Comm’n

Antitrust Litig., 583 F.3d 896, 903 (6th Cir. 2009) (internal quotations omitted).

To survive a motion to dismiss, “the plaintiff must allege facts that, if accepted as true, are

sufficient to raise a right to relief above the speculative level and to state a claim to relief that is

plausible on its face.” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)) (internal quotations omitted). A claim

is considered plausible on its face “when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). And though the court “must accept all well-

pleaded factual allegations in the complaint as true,” the court “need not accept as true a legal

conclusion couched as a factual allegation.” Id. (quoting Twombly, 550 U.S. at 555) (internal

quotations omitted).

In assessing a Rule 12(b)(6) motion to dismiss, the court’s primary focus will be on the

allegations in the complaint. The court may also consider “any exhibits attached thereto, public

records, items appearing in the record of the case and exhibits attached to the defendant’s motion

so long as they are referred to in the Complaint and are central to the claims contained therein.”

Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).

III. LAW & ANALYSIS

A. Exhaustion of Administrative Remedies for ADA claims (Counts IV and XI)

A plaintiff bringing employment discrimination claims under the ADA must first exhaust

administrative remedies. Jones v. Nat. Essentials, Inc., 740 F. App’x 489, 492 (6th Cir. 2018). This

requirement is a condition precedent, so failure to exhaust administrative remedies properly

constitutes a valid basis for dismissal. Id. “To properly exhaust administrative remedies under the

ADA, a plaintiff must file a charge of discrimination with the EEOC within 300 days of the alleged

discrimination.” Id. (citing Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 309 (6th Cir.

2000); 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e–5(e)(1)). The plaintiff must then obtain a right-

to-sue letter from the EEOC before initiating a lawsuit. Jones, 740 F. App'x at 492–93.

PPGOH argues that Plaintiff failed to satisfy the exhaustion requirement for her ADA

claims. PPGOH notes that while Plaintiff filed an EEOC charge explicitly referencing disability

discrimination in June 2024, that charge was untimely, as it was submitted well beyond the 300-

day deadline for allegations arising between June and October 2022. Consequently, Plaintiff must

rely on her earlier, timely filed EEOC charge to satisfy the exhaustion requirement. PPGOH

argues, however, that the timely filed charge fails to reference a disability or otherwise provide

notice of an ADA claim. (ECF Nos. 23 at 3; 25 at 1).

As a general rule, a plaintiff may not pursue claims in a judicial proceeding that were not

first raised in the EEOC charge. See Jones v. Sumser Ret. Vill., 209 F.3d 851, 853 (6th Cir. 2000).

That said, the “omission of a formal allegation in the EEOC filing is not always a fatal mistake.”

Woodling v. GeoBuild, LLC, No. 22-3499, 2023 WL 335283, at *2 (6th Cir. Jan. 20, 2023). The

Sixth Circuit has held that a failure to include an explicit allegation in an EEOC charge does not

automatically foreclose judicial review, provided the claim is reasonably within the scope of the

agency’s expected investigation. Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004).

To satisfy the exhaustion requirement, the EEOC charge must be “sufficiently precise to

identify the parties, and to describe generally the action or practices complained of.” Younis v.

Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010) (quoting 29 C.F.R. § 1601.12(b)). In

assessing sufficiency, courts construe charges liberally, allowing plaintiffs to raise “claims that are

reasonably related to, or that grow out of, the factual allegations in the charge.” Id. at 362. The

judicial complaint is thus not strictly limited to the claims explicitly stated in the EEOC charge,

but to those claims that are within “the scope of the EEOC investigation reasonably expected to

grow out of the charge of discrimination.” Weigel v. Baptist Hosp. of E. Tennessee, 302 F.3d 367,

380 (6th Cir. 2002); Dixon, 392 F.3d at 217. When the facts alleged in the EEOC charge would

reasonably prompt the agency to investigate a different, uncharged basis for discrimination, the

plaintiff is not barred from pursuing that claim in court. Davis v. Sodexho, 157 F.3d 460, 463 (6th

Cir. 1998).

In her timely filed EEOC charge, Plaintiff did not check the box for “disability” in the

section identifying the basis for discrimination. (ECF No. 23-1, Ex. A). She did, however, describe

her ankle injury, the need for surgery, her inability to work, her request for FMLA leave, and the

retaliation and termination that followed. Plaintiff stated:

In addition to suffering discrimination in the workplace, I was also retaliated against for

my exercise of FMLA leave. On June 9, 2022, I injured my ankle at work, requiring

surgery. My doctor advised me that I would not be able to work for a period following the

surgery. As such, I requested FMLA from November 22, 2022, through January 3, 2023.

On October 31, 2022, Human Resources approved the request and forwarded it to Ms.

Dzuban and Ms. Shanks.

Soon after submitting my request for FMLA, I was met with hostility at work. Ms. Shanks,

the Lead Clinician and my boss, outwardly expressed her displeasure in a text message

when she learned that I would be taking FMLA because I would not be able to train one of

the new hires. Planned Parenthood’s retaliation against me for requesting FMLA leave is

best evidenced by my termination four days before I was to exercise my leave.

(Id. ¶¶ 33–34). Thus, although Plaintiff did not check the “disability” box, the substance of the

factual narrative, not the labels used, will be determinative for exhaustion purposes.

Plaintiff asserts that the description of her ankle injury sufficiently alleges an impairment

that substantially limited major life activities, including walking, standing, lifting, and working—

bringing it within the ADA’s definition of a disability. (ECF No. 24 at 9–10). She also contends

that the same injury qualified both as a “serious health condition” under the FMLA and a

“disability” under the ADA. (Id. at 10).

There is no dispute that the EEOC charge implicates the FMLA and the “serious health

condition” standard. (ECF Nos. 23 at 7–8; 24 at 9; 25 at 3). Under the FMLA, a “serious health

condition” is defined as “an illness, injury, impairment, or physical or mental condition” involving

“inpatient care in a hospital, hospice, or residential medical care facility” or “continuing treatment

by a health care provider.” 29 U.S.C. § 2611(11).

While the parties agree that a condition qualifying as a “serious health condition” under

the FMLA may also qualify as a “disability” under the ADA, they disagree as to whether Plaintiff’s

EEOC charge provided adequate notice of the latter. (ECF Nos. 23 at 8; 24 at 10; 25 at 3). Under

the ADA, “disability” means “a physical or mental impairment that substantially limits one or

more major life activities of such individual . . . .” 42 U.S.C. § 12102(1). “[M]ajor life activities

include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating,

sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating,

thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).

PPGOH correctly notes that not all serious health conditions under the FMLA qualify as

disabilities under the ADA. (ECF Nos. 23 at 8; 25 at 3). PPGOH also argues that the charge was

prepared by counsel and clearly articulated claims of race discrimination, retaliation, and FMLA

violations. (ECF No. 25 at 4). They thus contend that if Plaintiff intended to assert a disability

discrimination claim, she could have done so and was fully capable of including it in the charge.

(Id.).

Although that argument has some merit, the relevant inquiry is not whether the charge used

a specific legal term like “disability” or described the claim with the same detail as other claims.

Rather, the question is whether the facts alleged in the EEOC charge were sufficient to provide

notice of a potential disability claim. See Younis, 610 F.3d at 362.

PPGOH’s emphasis on Plaintiff’s representation by counsel is also unavailing. While

courts may afford pro se litigants some leniency, the Sixth Circuit has made clear that “the fact

that we liberally construe EEOC charges filed by pro se complainants ‘does not mean that a broad

reading may not, or should not, be given in cases where a plaintiff has counsel.’” Spengler v.

Worthington Cylinders, 615 F.3d 481, 490 (6th Cir. 2010).

Consistent with Spengler, district courts have applied this liberal construction standard to

charges even where the complainant was represented by counsel. See, e.g., Dunn v. Chattanooga

Pub. Co., 993 F. Supp. 2d 830, 841 (E.D. Tenn. 2014) (liberally construing charges drafted with

the assistance of counsel); Szeinbach v. Ohio State Univ., 987 F. Supp. 2d 732, 749 (S.D. Ohio

2013) (“I conclude that a charge filed by a plaintiff who is represented by counsel should be

liberally read.”).

Plaintiff described in her EEOC charge a significant workplace injury that required surgery

and a multi-week leave of absence. She alleged that PPGOH was aware of the need for the FMLA

to address the injury, yet she received hostile responses and was eventually terminated. Given the

nature of the injury and its impact on her ability to work, the factual narrative in the charge could

reasonably have prompted an investigation into disability-related claims. See Davis, 157 F.3d at

463. While Plaintiff did not invoke the terms “disability” or “accommodation” in the EEOC

charge, the underlying facts, particularly the extended work limitations and the employer’s hostile

response, are sufficient to trigger investigation into whether the condition qualified as a disability

under the ADA.

Applying the liberal construction standard, this Court finds that Plaintiff’s timely filed

EEOC charge is sufficiently precise to encompass her ADA claims. Accordingly, those claims are

not barred for failure to exhaust administrative remedies.

B. Wrongful Termination in Violation of Public Policy (Count XIII)

PPGOH also urges this Court to dismiss Count XIII—Plaintiff’s claim that PPGOH

wrongfully terminated her employment in violation of Ohio’s public policy promoting workplace

and patient safety. (ECF No. 23 at 10). Plaintiff bases this claim on Ohio Rev. Code §§ 4101.11

and 4101.12. PPGOH argues dismissal is warranted because those statutes pertain to premises

liability and do not apply to patient care concerns unrelated to PPGOH’s premises.

To state a claim for wrongful termination in violation of public policy, a plaintiff must

establish, inter alia, that “a clear public policy existed and was manifested in a state or federal

constitution, statute or administrative regulation, or in the common law”—a requirement often

called the “clarity element.” Bender v. Champlain Enters., LLC, 797 F. App'x 1008, 1013 (6th

Cir. 2020) (quoting Collins v. Rizkana, 73 Ohio St.3d 65, 652 N.E.2d 653, 657–58 (1995)).1

1 The Sixth Circuit summarized the governing law as follows:

Ohio law provides that an at-will employee . . . generally has no guarantee of continued employment.

See Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 956 N.E.2d 825, 828–29 (2011). There is,

however, a “public policy” exception to the employment-at-will doctrine. Id. at 829. To establish a

claim for wrongful termination in violation of Ohio public policy, a plaintiff must show: (1) that “a

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

administrative regulation, or in the common law (the clarity element)”; (2) that dismissal “under

circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy (the

jeopardy element)”; (3) that “the plaintiff's dismissal was motivated by conduct related to the public

policy (the causation element)”; and (4) lack of an “overriding legitimate business justification for

the dismissal (the overriding justification element).” Collins v. Rizkana, 73 Ohio St.3d 65, 652

N.E.2d 653, 657–58 (1995) (emphases omitted). The clarity and jeopardy elements present

questions of law, while the causation and overriding justification elements present questions of fact.

Bender, 797 F. App'x at 1013.

A. The Public Policy: R.C. §§ 4101.11 and 4101.12

In Pytlinski v. Brocar Products, Inc., the Ohio Supreme Court recognized 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.” 94 Ohio St.3d 77, 760 N.E.2d 385, 388

(2002). The court later clarified in Dohme v. Eurand Am., Inc., that, “to 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 of specific provisions in the federal or state constitution,

federal or state statutes, administrative rules and regulations, or common law.” 130 Ohio St.3d

168, 956 N.E.2d 825, 831 (2011).

Plaintiff identifies Ohio Rev. Code §§ 4101.11 and 4101.12 as the sources of public policy

supporting her claim. These statutes generally impose duties on employers to maintain safe

workplaces for employees and frequenters.

It is asserted that these sections “manifest a clear public policy requiring healthcare

providers to ensure patient safety.” (ECF No. 21 ¶ 250). Section 4101.11 provides that:

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.

R.C. § 4101.11. On the other hand, § 4101.12 provides that:

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 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.

R.C. § 4101.12.

Plaintiff alleges she engaged in protected activity by reporting Frazier’s job performance

deficiencies. She also reported “violations of PPGOH’s policies and standards of conduct related

to patient care.” (Id. ¶ 251). The alleged violations include “serious omissions, deficiencies, and

inaccuracies in Frazier’s documentation.” (Id. ¶ 3). These reported errors are said to have placed

PPGOH’s patients at risk. They also “potentially violated the Health Insurance Portability and

Accountability Act of 1966 (“HIPAA”), jeopardized the licenses of the CNPs working with her

and exposed PPGOH to liability.” (Id. ¶ 3).

B. The Clarity Element

There is, however, a well-recognized split among Ohio courts—and federal courts applying

Ohio law—regarding whether §§ 4101.11 and 4101.12 satisfy the clarity element of a public policy

wrongful discharge claim. Some courts have found that these statutes articulate a sufficiently clear

public policy favoring workplace safety. For example, the Tenth District Court of Appeals held

that the two statutes “together establish that there exists a clear public policy . . . in Ohio favoring

workplace safety for employees and frequenters.” Blackburn v. Am. Dental Ctrs., 22 N.E.3d 1149,

1158 (Ohio Ct. App. 2014).

Other courts, however, have taken a more restrictive view, concluding that the statutes are

too “general and broad” to meet the clarity requirement. The Sixth District expressed this position

in Whitaker v. First Energy Nuclear Operating Co., holding that §§ 4101.11 and 4101.12 lack the

specificity necessary to support a wrongful discharge claim. Whitaker v. First Energy Nuclear

Operating Co., No. OT-12-021, 2013 WL 4792860, at *6 (Ohio Ct. App. Sept. 6, 2013).

Federal district courts applying Ohio law have echoed this divergence. Some have followed

Whitaker and found that, while these statutes reference workplace safety in a general sense, they

do not articulate a specific public policy with the clarity required to support a wrongful discharge

claim. Romero v. City of Middletown, 479 F. Supp. 3d 660, 675 (S.D. Ohio 2020); see also Wells

v. Russ' Steamer Serv., LLC, No. 3:23-CV-105, 2023 WL 5833101, at *4 (S.D. Ohio Sept. 8, 2023)

(“Based on developing law, the Court finds that Ohio Rev. Code §§ 4101.11 and 4101.12 are too

broad to constitute clear sources of public policy favoring workplace safety.”). Other district courts

have recognized §§ 4101.11 and 4101.12 as valid sources of public policy. Jenkins v. Central

Transp., Inc., 2010 WL 420027, at *3(N.D. Ohio Jan. 29, 2010); see also Tarver v. Delta Tranz,

LLC, No. 1:17-CV-01963, 2018 WL 1638644, at *2 (N.D. Ohio Apr. 5, 2018).

This Court has addressed the split and expressly rejected Whitaker as “flat-out wrongly

decided.” Lightner v. CB&I Constructors, Inc., No. 14-CV-2087, 2016 WL 6693548, at *9 n.6,

*10 (S.D. Ohio Nov. 14, 2016). In doing so, this Court noted that Pytlinski remained controlling

and that §§ 4101.11 and 4101.12 could satisfy the clarity requirement. Id. at *9 n.6, *10. In

Lightner, however, the parties did not dispute that the plaintiff met the clarity element to support

the claim when the plaintiff raised safety concerns tied directly to the physical workplace. Id. at

*7. The plaintiff worked on landfill projects which required regular monitoring, and “[i]f not

properly vented, they accumulate gas and can create hazardous, sometimes explosive, conditions.”

There, the plaintiff raised several concerns, including about unsafe dump truck operations, and

exposure to gaseous, hazardous conditions. Id. at *1, *2.

This context is significant. Courts that have found §§ 4101.11 and 4101.12 as supporting a

public policy claim have generally done so where the alleged misconduct involved physical

workplace or premises safety. See, e.g., Heigel v. MetroHealth Sys., 2024-Ohio-1471, ¶ 39, 241

N.E.3d 380, 390 (finding public policy claim failed where the plaintiff did not allege any unsafe

premises or latent hazard); Galyean v. Greenwell, No. 05CA11, 2007 WL 453273, at *14 (Ohio

Ct. App. Jan. 29, 2007) (noting that § 4101.11 addresses “traditional premises liability”).

In Jenkins and Tarver, for example, the plaintiffs reported mechanical failures or unsafe

conditions involving workplace vehicles, which implicated workplace safety. Jenkins, 2010 WL

420027, at *1; Tarver, 2018 WL 1638644, at *2. Similarly, in Lightner, the plaintiff’s complaints

related to safety concerns on a hazardous worksite. 2016 WL 6693548, at *1-*2. In each of these

cases, the danger alleged stemmed from the physical condition of the workplace.

In contrast, Plaintiff’s allegations here do not involve unsafe premises, equipment, or any

physical hazard to employees or frequenters. Rather, her concerns relate to the quality of patient

care and documentation, not the safety of the physical work environment. Plaintiff does not allege

that any patients were placed in physical danger because of unsafe conditions on PPGOH’s

premises, nor that the condition of the premises is subject to §§ 4101.11 or 4101.12.

While this Court continues to reject the argument that §§ 4101.11 and 4101.12 are

categorically too broad to support a public policy claim, a plaintiff must still “‘identify a public

policy concern that applies to the facts of the case.’” Heigel, 2024-Ohio-1471, ¶ 36, 241 N.E.3d

380 at 390 (quoting Rowe v. Hoist & Crane Serv. Grp. Inc., 2022-Ohio-3130, ¶ 30). Because

Plaintiff’s allegations do not implicate physical workplace safety, she has not satisfied the clarity

element of her wrongful discharge claim under Ohio law.

Accordingly, PPGOH’s motion is granted as to the claim for wrongful termination in

violation of public policy (Count XIII).

IV. CONCLUSION

For the reasons discussed above, Defendant PPGOH’s Motion to Dismiss (ECF No. 23) is

GRANTED in part and DENIED in part. The motion is granted as to Plaintiff’s claim for

wrongful termination in violation of public policy (Count XIII), and the motion is denied as to

Plaintiff's ADA claims (Counts IV and IX). As such, Count XIII is DISMISSED.

IT IS SO ORDERED.

ALGENO MARBL . Mosk

UNITED STATES DISTRICT JUDGE

DATED: September 17, 2025

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