Kulch v. Structural Fibers, Inc.

[This opinion has been published in Ohio Official Reports at 78 Ohio St.3d 134.]

KULCH, APPELLANT, v. STRUCTURAL FIBERS, INC. ET AL., APPELLEES.

[Cite as Kulch v. Structural Fibers, Inc., 1997-Ohio-219.]

Employment relations—At-will employee discharged or disciplined for filing

complaint with OSHA is entitled to maintain common-law tort action

against employer for wrongful discharge/discipline in violation of public

policy—R.C. 4113.52, construed.

__________________

1. An at-will employee who is discharged or disciplined for filing a complaint

with the Occupational Safety and Health Administration concerning matters

of health and safety in the workplace is entitled to maintain a common-law

tort action against the employer for wrongful discharge/discipline in

violation of public policy pursuant to Greeley v. Miami Valley Maintenance

Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981, and its progeny.

2. R.C. 4113.52 does not preempt a common-law cause of action against an

employer who discharges or disciplines an employee in violation of that

statute.

3. An at-will employee who is discharged or disciplined in violation of the

public policy embodied in R.C. 4113.52 may maintain a common-law cause

of action against the employer pursuant to Greeley v. Miami Valley

Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981, and

its progeny, so long as that employee had fully complied with the statute

and was subsequently discharged or disciplined. (Greeley, supra, approved;

Painter v. Graley [1994], 70 Ohio St.3d 377, 639 N.E.2d 51, paragraphs

two and three of the syllabus, approved; Phung v. Waste Mgt., Inc. [1986],

23 Ohio St.3d 100, 23 OBR 260, 491 N.E.2d 1114, overruled.)

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4. The remedies available pursuant to R.C. 4113.52 for violations of the statute

and the remedies available for the tort of wrongful discharge are cumulative.

5. An at-will employee who is discharged or disciplined in violation of R.C.

4113.52 may maintain a statutory cause of action for the violation, a

common-law cause of action in tort, or both, but is not entitled to double

recovery.

__________________

(No. 95-650—Submitted October 8, 1996—Decided April 16, 1997.)

APPEAL from the Court of Appeals for Geauga County, No. 93-G-1824.

__________________

{¶ 1} Structural Fibers, Inc., appellee, is an operating division of appellee

ESSEF Corporation. Structural Fibers is located in Chardon, Ohio, where it

manufactures tanks or “vessels” used in well water systems. In 1976, James Kulch,

appellant, was hired by Structural Fibers as a factory worker. In late 1990, Kulch

began experiencing serious health problems which he believed were attributable to

toxic chemicals in the air at his workplace. Other employees had also experienced

health problems, such as serious allergic reactions, rashes, bloody noses, skin

irritation, and respiratory difficulties. Therefore, Kulch and others verbally

complained to management concerning the situation. However, according to

Kulch, management responded to his complaints by informing him that he could

either do his job or find employment elsewhere.

{¶ 2} In January 1991, after Structural Fibers had done nothing in response

to Kulch’s verbal complaints, Kulch filed a written report with the Occupational

Safety and Health Administration (“OSHA”). In his report, Kulch stated that

employees in the “winding area” of Structural Fibers’ main plant were complaining

of health problems “from chemicals in the air, such as: acetone, styrene, epoxy

resins, colbalt [sic] mixes.” In April 1991, OSHA inspected the plant and, among

other things, performed air monitoring in the winding area. The air sampling data

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revealed that the air contaminants in the winding area did not violate OSHA

standards. However, during the on-site inspection, OSHA found several serious

violations of the Occupational Safety and Health Act of 1970, Section 651 et seq.,

Title 29, U.S. Code. Consequently, substantial fines were assessed against

Structural Fibers.1 The violations found by OSHA were apparently unrelated to the

matters set forth in Kulch’s January 1991 OSHA complaint.

{¶ 3} According to Kulch, Structural Fibers and the ESSEF Corporation

(collectively, “appellees”) retaliated against him for having filed the report with

OSHA. Specifically, Kulch’s coworkers were approached by management and

asked to confirm the identity of the person who had filed the OSHA complaint. At

the same time, appellees warned employees not to associate with Kulch. Appellees

threatened that anyone found associating with Kulch would “go down” with him.

On one occasion, Kulch was physically threatened by a supervisor for having

reported the company to OSHA. Additionally, Kulch’s supervisors began filling

his employment file with lengthy write-ups and entries. Between June 7 and

October 7, 1991, write-ups or reports had been placed in Kulch’s personnel file on

eleven separate occasions, sometimes more than once on the same day.

{¶ 4} In October 1991, management at Structural Fibers decided to secretly

videotape Kulch during work hours to monitor his job performance. A hidden

camera was placed near Kulch’s work station and his performance was surveyed

over a period of two days. The act of videotaping Kulch was the first time in

company history that surveillance cameras were used to document an employee’s

job performance. On October 17, 1991, Kulch was discharged from his

employment with Structural Fibers. Following the discharge, Kulch filed a

complaint with OSHA, asserting that appellees had discharged him for having filed

1. The fines imposed by OSHA were later reduced under the terms of a settlement agreement

between OSHA and Structural Fibers.

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previous OSHA complaints. In July 1992, OSHA dismissed Kulch’s retaliation

complaint.

{¶ 5} The parties dispute the reason for Kulch’s termination. Kulch

contends that he was discharged from his employment in reprisal for having

reported Structural Fibers to OSHA. Conversely, appellees specifically deny

having ever retaliated against Kulch. Appellees claim that they videotaped Kulch

and began to closely monitor his job performance simply because Kulch had been

suspected of improperly performing his job. Appellees maintain that they never

knew about Kulch’s January 1991 OSHA complaint until well after the complaint

had been filed. Appellees claim that Kulch was terminated for failure to properly

perform his job and for falsely indicating on his time card that he had performed

work he had not in fact completed.

{¶ 6} In December 1991, Kulch filed suit against Structural Fibers. In an

amended complaint, Kulch added appellee ESSEF Corporation as a defendant and

set forth claims for violations of Ohio’s Whistleblower Statute, R.C. 4113.52, and

wrongful discharge in violation of public policy. Kulch also set forth claims for,

among other things, negligent and intentional infliction of emotional distress. On

May 15, 1992, appellees moved to dismiss the amended complaint for failure to

state a claim. The trial court denied appellees’ motion to dismiss. Thereafter,

following a period of discovery, appellees moved for summary judgment on

Kulch’s claims for violations of the Whistleblower Statute and his claims for

negligent and intentional infliction of emotional distress. Appellees also moved for

judgment on the pleadings with respect to, among other things, Kulch’s claim of

wrongful discharge in violation of public policy. By judgment entry filed

November 10, 1993, the trial court granted appellees’ motion for judgment on the

pleadings and for summary judgment, stating:

“This case is before the court on defendants’ motion for judgment on the

pleadings and for summary judgment.

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“Plaintiff seeks to recover damages for wrongful discharge pursuant to the

Whistleblower Act, R.C. 4113.52. Plaintiff reported to [OSHA] that the

defendant[s’] work place was unsafe because defendant[s] permitted the use and

discharge into the air of toxic and corrosive chemicals. Defendant[s] [claim] that

plaintiff was discharged, not for whistleblowing, but for unsatisfactory work

performance. For the purposes of this motion, the court must assume that

defendant[s] discharged plaintiff because plaintiff reported defendant[s] to OSHA.

“In addition to a violation of the Whistleblower Act, plaintiff alleges that

his discharge was unlawful and in conflict with Ohio’s public policy as established

in Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St.3d

228 [551 N.E.2d 981]. First, the court is of the opinion that the Whistleblower Act

in Ohio has preempted this field so that * * * a public policy exception to the

employment at will doctrine does not exist in Ohio for whistleblowing. * * *

“As to the violations of the Whistleblower Statute, R.C. 4113.52

specifically provides that an employee must first give oral and written notice to the

employer in order to be protected by the statute. It is undisputed in this case that

plaintiff orally complained to the employer about the unsafe or unhealthy condition

in the plant, but that he never made a written complaint to the employer.

“* * *

“Accordingly, the court holds that plaintiff is not afforded protection

pursuant [to] R.C. 4113.52 and that no genuine issue exists as to any material fact

and that judgment should be granted as a matter of law with respect to the claimed

violation of statute.

“* * *

“Finally, plaintiff claims that he suffered emotional distress because of

defendant[s’] intentional and negligent actions. Construing the facts most

favorably for the plaintiff, the court concludes that defendant[s’] conduct was

neither extreme nor outrageous.

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“Accordingly, the court grants defendant[s’] motion for summary judgment

and finds for defendant[s] on the complaint.”

{¶ 7} On appeal, the court of appeals affirmed the judgment of the trial

court. With respect to Kulch’s claim of wrongful discharge in violation of public

policy, the court of appeals agreed with the trial court’s determination that R.C.

4113.52 preempts the formation of a public-policy exception to the employment-

at-will doctrine within the specific context of whistleblowing. The court of appeals

also agreed with the trial court’s decision granting summary judgment in favor of

appellees on Kulch’s statutory whistleblower cause of action, finding that Kulch

was not entitled to avail himself of the protections of R.C. 4113.52(A)(1)(a)

because he never made a written report to his employer concerning the alleged

unsafe or unhealthy condition of his workplace. Additionally, the court of appeals

upheld the grant of summary judgment in favor of appellees on the claims for

negligent and intentional infliction of emotional distress.

{¶ 8} The cause is now before this court pursuant to the allowance of a

discretionary appeal.

__________________

Dworken & Bernstein Co., L.P.A., Patrick J. Perotti, Robert J. Hoffman and

Shawn W. Maestle, for appellant.

Roetzel & Andress and Gregory P. Szuter, for appellees.

Louis A. Jacobs; Spater, Gittes, Schulte & Kolman and Frederick M. Gittes,

urging reversal for amici curiae, Ohio Employment Lawyers Association; Ohio

NOW Education and Legal Fund; National Conference of Black Lawyers,

Columbus Chapter; and Police Officers for Equal Rights.

__________________

DOUGLAS, J.

{¶ 9} This appeal presents three main issues for our consideration. The first

is whether the court of appeals erred in finding that appellees were entitled to

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summary judgment on Kulch’s statutory cause of action for violations of R.C.

4113.52, Ohio’s Whistleblower Statute.2 The second concerns the court of appeals’

2. R.C. 4113.52 provides that:

“(A)(1)(a) If an employee becomes aware in the course of his employment of a violation

of any state or federal statute or any ordinance or regulation of a political subdivision that his

employer has authority to correct, and the employee reasonably believes that the violation either is

a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard

to public health or safety or is a felony, the employee orally shall notify his supervisor or other

responsible officer of his employer of the violation and subsequently shall file with that supervisor

or officer a written report that provides sufficient detail to identify and describe the violation. If the

employer does not correct the violation or make a reasonable and good faith effort to correct the

violation within twenty-four hours after the oral notification or the receipt of the report, whichever

is earlier, the employee may file a written report that provides sufficient detail to identify and

describe the violation with the prosecuting authority of the county or municipal corporation where

the violation occurred, with a peace officer, with the inspector general if the violation is within his

jurisdiction, or with any other appropriate public official or agency that has regulatory authority

over the employer and the industry, trade, or business in which he is engaged.

“(b) If an employee makes a report under division (A)(1)(a) of this section, the employer,

within twenty-four hours after the oral notification was made or the report was received or by the

close of business on the next regular business day following the day on which the oral notification

was made or the report was received, whichever is later, shall notify the employee, in writing, of

any effort of the employer to correct the alleged violation or hazard or of the absence of the alleged

violation or hazard.

“(2) If an employee becomes aware in the course of his employment of a violation of

Chapter 3704., 3734., 6109., or 6111. of the Revised Code that is a criminal offense, the employee

directly may notify, either orally or in writing, any appropriate public official or agency that has

regulatory authority over the employer and the industry, trade, or business in which he is engaged.

“(3) If an employee becomes aware in the course of his employment of a violation by a

fellow employee of any state or federal statute, any ordinance or regulation of a political subdivision,

or any work rule or company policy of his employer and the employee reasonably believes that the

violation either is a criminal offense that is likely to cause an imminent risk of physical harm to

persons or a hazard to public health or safety or is a felony, the employee orally shall notify his

supervisor or other responsible officer of his employer of the violation and subsequently shall file

with that supervisor or officer a written report that provides sufficient detail to identify and describe

the violation.

“(B) Except as otherwise provided in division (C) of this section, no employer shall take

any disciplinary or retaliatory action against an employee for making any report authorized by

division (A)(1) or (2) of this section, or as a result of the employee’s having made any inquiry or

taken any other action to ensure the accuracy of any information reported under either such division.

No employer shall take any disciplinary or retaliatory action against an employee for making any

report authorized by division (A)(3) of this section if the employee made a reasonable and good

faith effort to determine the accuracy of any information so reported, or as a result of the employee’s

having made any inquiry or taken any other action to ensure the accuracy of any information

reported under that division. For purposes of this division, disciplinary or retaliatory action by the

employer includes, without limitation, doing any of the following:

“(1) Removing or suspending the employee from employment;

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determination that R.C. 4113.52 preempts the formation of an independent

common-law cause of action in tort for an at-will employee who is discharged or

disciplined for “whistleblowing.” The third involves the question whether the court

of appeals erred in affirming the grant of summary judgment in favor of appellees

on Kulch’s claims for negligent and intentional infliction of emotional distress. For

the reasons that follow, we affirm the judgment of the court of appeals in part,

reverse it in part, and remand this cause to the trial court for further proceedings.

I

Appellant’s Statutory Cause of Action

“(2) Withholding from the employee salary increases or employee benefits to which the

employee is otherwise entitled;

“(3) Transferring or reassigning the employee;

“(4) Denying the employee a promotion that otherwise would have been received;

“(5) Reducing the employee in pay or position.

“(C) An employee shall make a reasonable and good faith effort to determine the accuracy

of any information reported under division (A)(1) or (2) of this section. If the employee who makes

a report under either division fails to make such an effort, he may be subject to disciplinary action

by his employer, including suspension or removal, for reporting information without a reasonable

basis to do so under division (A)(1) or (2) of this section.

“(D) If an employer takes any disciplinary or retaliatory action against an employee as a

result of the employee’s having filed a report under division (A) of this section, the employee may

bring a civil action for appropriate injunctive relief or for the remedies set forth in division (E) of

this section, or both, within one hundred eighty days after the date the disciplinary or retaliatory

action was taken, in a court of common pleas in accordance with the rules of civil procedure. A

civil action under this division is not available to an employee as a remedy for any disciplinary or

retaliatory action taken by an appointing authority against the employee as a result of the employee’s

having filed a report under division (A) of section 124.341 of the Revised Code.

“(E) The court, in rendering a judgment for the employee in an action brought pursuant to

division (D) of this section, may order, as it determines appropriate, reinstatement of the employee

to the same position he held at the time of the disciplinary or retaliatory action and at the same site

of employment or to a comparable position at that site, the payment of back wages, full reinstatement

of fringe benefits and seniority rights, or any combination of these remedies. The court also may

award the prevailing party all or a portion of the costs of litigation, and if the employee who brought

the action prevails in the action, may award the prevailing employee reasonable attorney’s fees,

witness fees, and fees for experts who testify at trial, in an amount the court determines appropriate.

If the court determines that an employer deliberately has violated division (B) of this section, the

court, in making an award of back pay, may include interest at the rate specified in section 1343.03

of the Revised Code.

“(F) Any report filed with the inspector general under this section shall be filed as a

complaint in accordance with section 121.46 of the Revised Code.”

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{¶ 10} The record reveals that appellant orally notified appellees of claimed

health and safety violations at the Structural Fibers plant long before he reported

the matter to OSHA. However, appellant never provided appellees with a written

report concerning these alleged violations. The trial court and the court of appeals

held that R.C. 4113.53(A)(1)(a) required appellant to notify appellees both orally

and in writing concerning the alleged safety and health violations in order to gain

statutory protection as a whistleblower. Therefore, the trial court and the court of

appeals held that appellant was not entitled to statutory protection under R.C.

4113.52 because he had failed to strictly comply with the requirements of R.C.

4113.52(A)(1)(a).

{¶ 11} Appellant presents four propositions of law for our consideration.

Propositions of Law Nos. 1 and 3 read as follows:

“Proposition of Law No. 1

“If an employer receives oral or written notification from an employee of a

claimed health or safety violation as described in R.C. §4113.52(A)(1)(a), and does

not correct the violation or make a reasonable and good faith effort to correct the

violation within 24 hours, the employee may file a written report with a regulatory

official or agency as authorized by R.C. §4113.52(A)(1)(a). That filing invokes the

protection of the whistleblower statute. R.C. §4133.52(A)-(B), explained.”

“Proposition of Law No. 3

“A court addressing a summary judgment motion must consider not only

the materials properly attached to the briefing in support and in opposition, but also

all pleadings on file in the case. A court may not properly grant summary judgment

on the ground that a party has not asserted a claim or theory in the lower court,

where such claim or theory is plainly set forth in the complaint or other pleading

properly on file. * * *”

{¶ 12} In his first proposition of law, appellant contends that the trial court

and the court of appeals erred in finding that he was required under R.C.

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4113.52(A)(1)(a) to notify appellees both orally and in writing concerning the

alleged safety and health violations. Specifically, appellant interprets R.C.

4113.52(A)(1)(a) as providing that if an employer receives oral notification from

an employee of a claimed health or safety violation of the type described in R.C.

4113.52(A)(1)(a), and the employer fails to correct the violation or make a

reasonable and good faith effort to correct the violation within twenty-four hours,

the employee may file a written report with an appropriate individual or agency

specified in R.C. 4113.52(A)(1)(a) and is entitled to the protections of the

Whistleblower Statute. We reject appellant’s interpretation of R.C.

4113.52(A)(1)(a).

{¶ 13} Recently, in Contreras v. Ferro Corp. (1995), 73 Ohio St.3d 244,

652 N.E.2d 940, this court outlined the specific procedures that must be followed

under R.C. 4113.52(A)(1)(a) for an employee to gain statutory protection for

reporting certain information to outside authorities. In Contreras, supra, at 246-

249, 652 N.E.2d at 942-944, we stated:

“Ohio’s Whistleblower Statute, R.C. 4113.52, provides specific procedures

an employee must follow to gain statutory protection as a whistleblower. R.C.

4113.52(A)(1)(a) addresses the situation where an employee in the course of his or

her employment becomes aware of a violation of any state or federal statute or any

ordinance or regulation of a political subdivision that the employer has the authority

to correct, and the employee reasonably believes that the violation either is a

criminal offense that is likely to cause an imminent risk of physical harm or a hazard

to public health or safety or is a felony. Under such circumstances, R.C.

4113.52(A)(1)(a) requires that the employee orally notify his or her supervisor or

other responsible officer of the employer of the violation and subsequently file with

that person a written report that provides sufficient detail to identify and describe

the violation. If these requirements have been satisfied and the employer does not

correct the violation or make a reasonable and good faith effort to correct the

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violation within twenty-four hours after the oral notification or the receipt of the

written report, whichever is earlier, the employee may then file a written report with

the prosecuting authority of the county or municipal corporation where the violation

occurred or with some other appropriate person specified in R.C. 4113.52(A)(1)(a).

“Clearly, the provisions of R.C. 4113.52(A)(1) contemplate that the

employer shall be given the opportunity to correct the violation. The statute

mandates that the employer be informed of the violation both orally and in writing.

An employee who fails to provide the employer with the required oral notification

and written report is not entitled to statutory protection for reporting the

information to outside authorities. If the employee provides the employer with oral

notification and a written report, the employee may be entitled to the protections

of the whistleblower statute for reporting the information to outside authorities only

if the employer has failed to correct the violation or make a reasonable and good

faith effort to correct the violation within twenty-four hours after the oral

notification or the receipt of the written report, whichever is earlier. R.C.

4113.52(A)(1)(b) contemplates that the employer will apprise the employee of its

efforts to correct the violation. That provision mandates that if an employee makes

a report to his or her employer under R.C. 4113.52(A)(1)(a), the employer, within

twenty-four hours after the oral notification was made or the report received or by

the close of business on the next regular business day, whichever is later, must

provide written notice to the employee of any efforts the employer made to correct

the alleged violation or hazard or of the absence of the alleged violation or hazard.

Only after all these various procedures and requirements have been satisfied, and

only if the employer has not corrected the violation or made a reasonable and good

faith effort to correct the violation may the employee report the violation to outside

authorities -- but only those authorities specified in R.C. 4113.52(A)(1)(a).

“Therefore, to restate, R.C. 4113.52(A)(1) protects an employee for reporting

certain information to outside authorities only if the following requirements have

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first been satisfied: (1) the employee provided the required oral notification to the

employee’s supervisor or other responsible officer of the employer, (2) the

employee filed a written report with the supervisor or other responsible officer, and

(3) the employer failed to correct the violation or to make a reasonable and good

faith effort to correct the violation. Further, R.C. 4113.52(A)(1)(a) sets forth the

sole acceptable manner in which the employee may ‘blow the whistle’ to outside

authorities. Specifically, the employee may file a written report that provides

sufficient detail to identify and describe the violation with the proper prosecuting

authority or other appropriate official or agency with regulatory authority over the

employer and the industry, trade or business in which the employer is engaged. An

employee who fails to follow the specific requirements of the statute is not a

protected whistleblower and, accordingly, may not bring a wrongful discharge

action pursuant to R.C. 4113.52.” (Emphasis added in part and deleted in part;

footnote omitted.)

{¶ 14} We continue to believe that our discussion in Contreras concerning

the specific procedural reporting requirements of R.C. 4113.52(A)(1)(a) comports

with the express terms of the Whistleblower Statute. Here, appellant orally notified

appellees of the claimed health and safety violations concerning airborne chemicals

at the Structural Fibers plant. Appellees failed to address appellant’s concerns.

Thereafter, appellant proceeded to report the matter to OSHA without ever having

provided appellees with a written report describing the alleged violations. The fact

that appellant reported to OSHA without having notified his employer both orally

and in writing concerning the alleged health and safety violations is fatal to his

claim for protection under R.C. 4113.52(A)(1)(a).

{¶ 15} Nevertheless, in his third proposition of law, appellant contends that

he was a protected whistleblower under the terms of R.C. 4113.52(A)(2). R.C.

4113.52(A)(2) addresses the situation where an employee becomes aware in the

course of his or her employment of a violation of R.C. Chapter 3704 (Air Pollution

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Control Act), 3734 (Solid and Hazardous Wastes Act), 6109 (Safe Drinking Water

Act), or 6111 (Water Pollution Control Act) that is a criminal offense. Under such

circumstances, the employee may directly notify any appropriate public official or

agency with regulatory authority over the employer and the industry, trade, or

business in which the employer is engaged. There is no requirement in R.C.

4113.52(A)(2) that the employee notify his or her employer of the perceived

violations. Therefore, appellant suggests that the trial court erred in dismissing his

statutory cause of action solely because he had failed to file a written report with

his employer.

{¶ 16} The court of appeals refused to address appellant’s arguments in this

regard, stating:

“In the second assignment of error, appellant maintains that the trial court

erred in dismissing his whistle-blower claim because R.C. 4113.52(A)(2) dispenses

with any notice to the employer when the complaint involves R.C. Chapters 3704

and 3734. * * *

“A review of the record, however, reveals that appellant never argued this

theory in the trial court. It is well established that an appellant may not assert a new

theory for the first time before the appellate court. * * * Accordingly, this court

will not address appellant’s argument that no notice to the employer is required for

complaints regarding R.C. Chapters 3704 and 3734.”

{¶ 17} However, we find that appellant clearly raised a claim for protection

under R.C. 4113.52(A)(2) in Count One of his amended complaint, wherein he set

forth the following relevant allegations in support of his statutory cause of action

for violations of the Whistleblower Statute:

“4. Beginning in late January, 1991, in the course of his employment with

defendant, plaintiff became aware of activities, conditions and company policies at

the work place which constituted an imminent risk of physical harm to himself and

other employees and a hazard to public health.

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“5. Among other things, these included the use and discharge into the air

in the work area of highly toxic or corrosive chemicals such as acetone, styrene,

epoxy resins, and cobalt mixes.

“6. These activities, conditions and company policies at the work place

constitute a violation of various state and federal laws including but not limited to

the Occupational Safety and Health Act of 1970 and Ohio Revised Code Chapters

3704 and 3734.

“7. These activities, conditions and company policies also constitute a

criminal offense under those laws.

“* * *

“10. When the problems were not corrected, plaintiff reported them to the

Occupational Safety and Health Administration. * * *

“11. Shortly after plaintiff reported these matters to OSHA, defendant

began to discriminate and retaliate against plaintiff because of making this report

and these charges.

“* * *

“17. Defendant’s conduct [in retaliating against appellant for filing a report

with OSHA], is unlawful retaliation, specifically prohibited by R.C. 4113.51-.52 *

* *.” (Emphasis added.)

{¶ 18} A fair reading of the amended complaint reveals that appellant raised

a claim for protection under R.C. 4113.52(A)(2) by alleging that he had reported to

OSHA concerning perceived criminal violations of R.C. Chapters 3704 and 3734.

R.C. 4113.52(A)(2) specifically authorizes an employee to report such matters

directly to any appropriate public official or agency having regulatory authority

over the employer. Therefore, as a matter of law, there is no requirement for a

reporter of information under R.C. 4113.52(A)(2) to inform his or her employer,

either orally or in writing, concerning violations of the type described in R.C.

4113.52(A)(2). Accordingly, we disagree with the court of appeals’ conclusion that

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appellant has somehow waived his claim that he was a protected reporter of

information under R.C. 4113.52(A)(2). The claim was specifically asserted in the

factual allegations of appellant’s amended complaint. Apparently, the court of

appeals believed that appellant was obligated to raise the issue of R.C.

4113.52(A)(2) in response to appellees’ motion for summary judgment. However,

appellees’ motion for summary judgment did not attack appellant’s claim for

protection under R.C. 4113.52(A)(2). See discussion infra. Therefore, any

omission by appellant to defend his (A)(2) claim for whistleblower protection in

response to appellees’ motion for summary judgment cannot constitute an

abandonment of that claim.

{¶ 19} Appellees contend that they were entitled to summary judgment on

the statutory whistleblower cause of action despite appellant’s claim for protection

under R.C. 4113.52(A)(2). Specifically, appellees claim that their motion for

summary judgment obligated appellant to produce evidence “beyond the

allegations and defenses of his pleading to show facts of his awareness about

environmental crimes under R.C. Chapters 3704, 3734, 6109 or 6111 * * *.” To

support this argument, appellees cite Wing v. Anchor Media, Ltd. of Texas (1991),

59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus, wherein a

majority of this court held that “[a] motion for summary judgment forces the

nonmoving party to produce evidence on any issue for which that party bears the

burden of production at trial.” However, in Dresher v. Burt (1996), 75 Ohio St.3d

280, 295, 662 N.E.2d 264, 275, we limited paragraph three of the syllabus of Wing.

In Dresher, at 293, 662 N.E.2d at 274, we held:

“[A] party seeking summary judgment, on the ground that the nonmoving

party cannot prove its case, bears the initial burden of informing the trial court of

the basis for the motion, and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact on the essential

element(s) of the nonmoving party’s claims. The moving party cannot discharge

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its initial burden under Civ.R. 56 simply by making a conclusory assertion that the

nonmoving party has no evidence to prove its case. Rather, the moving party must

be able to specifically point to some evidence of the type listed in Civ.R. 56(C)

which affirmatively demonstrates that the nonmoving party has no evidence to

support the nonmoving party’s claims. If the moving party fails to satisfy its initial

burden, the motion for summary judgment must be denied. However, if the moving

party has satisfied its initial burden, the nonmoving party then has a reciprocal

burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a

genuine issue for trial and, if the nonmovant does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.”3

(Emphasis added in part and deleted in part.)

3. Civ.R. 56 sets forth, among other things, the standards to be applied in a summary judgment

proceeding. Civ.R. 56 provides:

“(A) For party seeking affirmative relief. A party seeking to recover upon a claim,

counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration

of the time permitted under these rules for a responsive motion or pleading by the adverse party, or

after service of a motion for summary judgment by the adverse party, move with or without

supporting affidavits for a summary judgment in his favor upon all or any part thereof. If the action

has been set for pretrial or trial, a motion for summary judgment may be made only with leave of

court.

“(B) For defending party. A party against whom a claim, counterclaim, or cross-claim is

asserted or a declaratory judgment is sought may at any time, move with or without supporting

affidavits for a summary judgment in his favor as to all or any part thereof. If the action has been

set for pretrial or trial, a motion for summary judgment may be made only with leave of court.

“(C) Motion and proceedings thereon. The motion shall be served at least fourteen days

before the time fixed for hearing. The adverse party prior to the day of hearing may serve and file

opposing affidavits. Summary judgment shall be rendered forthwith if the pleading, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending

case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No

evidence or stipulation may be considered except as stated in this rule. A summary judgment shall

not be rendered unless it appears from such evidence or stipulation and only therefrom, that

reasonable minds can come to but one conclusion and that conclusion is adverse to the party against

whom the motion for summary judgment is made, such party being entitled to have the evidence or

stipulation construed most strongly in his favor. A summary judgment, interlocutory in character,

may be rendered on the issue of liability alone although there is a genuine issue as to the amount of

damages.

“* * *

“(E) Form of affidavits; further testimony; defense required. Supporting and opposing

affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in

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{¶ 20} Here, appellant’s amended complaint clearly raised a claim for

whistleblower protection under R.C. 4113.52(A)(2). In the amended complaint,

appellant also sought to advance a claim for protection under R.C.

4113.52(A)(1)(a). In their motion for summary judgment, appellees asserted that

they were entitled to judgment on appellant’s entire statutory cause of action for

violations of the Whistleblower Statute, stating that “(1) Kulch cannot establish a

prima facie case [of violations of the Whistleblower Statute] because he failed to

satisfy the detailed statutory prerequisites to filing a lawsuit under R.C. §4113.52;

and, (2) Kulch was terminated for legitimate business reasons * * *.” In a

memorandum in support of the motion, appellees argued that appellant could not

establish a prima facie case of violations of the Whistleblower Statute for several

reasons. First, appellees argued that Kulch’s report to OSHA did not concern

criminal violations of the Occupational Safety and Health Act of 1970, Section 651

et seq., Title 29, U.S. Code. In this regard, appellees claimed that Kulch’s report

to OSHA was not a report concerning a “criminal offense” within the meaning of

R.C. 4113.52(A)(1)(a). Second, appellees argued that, contrary to R.C.

4113.52(A)(1)(a), Kulch had failed to orally notify them of health and safety

violations before reporting the matter to OSHA. Third, appellees asserted that

Kulch had never provided them with a written report concerning the alleged health

and safety violations. Alternatively, appellees argued that Kulch could not establish

a prima facie case of violations of the Whistleblower Statute, since Kulch had been

terminated for, inter alia, unsatisfactory work performance. To support these

evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated

therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be

attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed

by depositions or by further affidavits. When a motion for summary judgment is made and

supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials

of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial. If he does not so respond, summary

judgment, if appropriate, shall be entered against him.”

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various arguments, appellees relied upon deposition testimony, affidavits, and other

materials of the type listed in Civ.R. 56(C).

{¶ 21} In response to the motion for summary judgment, appellant relied

upon evidentiary materials of the type listed in Civ.R. 56(C) indicating that there

were genuine issues of material fact remaining to be litigated concerning the

reasons for his termination. Appellant also pointed to evidence indicating that he

had verbally notified appellees regarding the conditions at the Structural Fibers

plant before he reported the matter to OSHA, but he did not raise any specific issue

or argument concerning R.C. 4113.52(A)(2). However, in their motion for

summary judgment, appellees pointed to no evidentiary materials indicating the

lack of a genuine issue of material fact whether Kulch was a protected

whistleblower under the terms of R.C. 4113.52(A)(2) for having directly reported

to OSHA concerning alleged criminal violations of R.C. Chapters 3704 and 3734.

{¶ 22} Appellees’ motion for summary judgment clearly dealt with

appellant’s failure to comply with the specific reporting requirements of R.C.

4113.52(A)(1)(a). In this regard, appellees were successful in defeating any claim

that appellant was a protected whistleblower under the provisions of R.C.

4113.52(A)(1)(a), since it was undisputed that appellant had reported to OSHA

without having notified his employer, both orally and in writing, concerning the

alleged criminal violations. However, appellees never satisfied (or even attempted

to satisfy) their initial burden under Civ.R. 56 of demonstrating that there were no

genuine issues of material fact concerning appellant’s claim for whistleblower

protection under the provisions of R.C. 4113.52(A)(2). Thus, appellant had no

obligation to respond to the motion by raising or otherwise supporting the factual

allegations already contained in his amended complaint pertaining to his claim for

possible whistleblower protection under R.C. 4113.52(A)(2).

{¶ 23} The trial court granted summary judgment in favor of appellees on

appellant’s entire statutory cause of action solely because appellant had not

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January Term, 1997

complied with the specific reporting requirements of R.C. 4113.52(A)(1)(a).

Appellant’s amended complaint sought whistleblower protection under R.C.

4113.52(A)(2) as well as 4113.52(A)(1)(a). By entering summary judgment

against appellant on his entire statutory claim, the trial court erred to the extent that

it dismissed appellant’s claim for protection under R.C. 4113.52(A)(2). Appellees

never challenged appellant’s claim that his report to OSHA was an authorized

report under R.C. 4113.52(A)(2). Moreover, contrary to appellees’ suggestions,

appellant had no obligation to respond to the motion for summary judgment by

producing evidence on every element of his claim for protection under R.C.

4113.52(A)(2), since appellees never discharged their initial burden of

demonstrating the absence of a genuine issue of material fact concerning that claim

and their entitlement to judgment as a matter of law.

{¶ 24} Appellees now protest that appellant never reported the alleged

criminal violations of R.C. Chapters 3704 and 3734 to the public authority

responsible for enforcement of those laws. Appellees also contend that the matters

reported to OSHA did not constitute criminal violations of R.C. Chapters 3704 and

3734. Appellant counters appellees’ first argument by noting that (1) R.C.

4113.52(A)(2) authorizes an employee to report alleged criminal violations

involving R.C. Chapters 3704 and 3734 to any appropriate public official or agency

that has regulatory authority over the employer, and (2) OSHA was a regulatory

agency with regulatory authority over appellees. Appellant counters appellees’

second argument by asserting that his report to OSHA clearly involved criminal

violations of R.C. Chapters 3704 and 3734. Additionally, appellant claims that his

report to OSHA was authorized under R.C. 4113.52(A)(2) even if no actual

violation of R.C. Chapters 3704 and 3734 occurred, since he reasonably believed

that appellees’ conduct involved criminal violations of those Chapters of the

Revised Code. Appellant’s contentions in this regard are bolstered by our recent

decision in Fox v. Bowling Green (1996), 76 Ohio St.3d 534, 668 N.E.2d 898,

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wherein we stated that, “[f]rom a public policy perspective, the ‘reasonable belief’

standard is the only acceptable interpretation of the [whistleblower] statute. R.C.

4113.52 was designed to give whistleblowers some protection in Ohio’s

employment-at-will environment. * * * The public, in turn, relies on

whistleblowers for protection. The ‘actual violation’ standard could delay a

whistleblower’s reporting of a violation which endangers the public safety, or at

worst, prevent him from reporting the violation at all. The statute expects a

whistleblower to be vigilant, attuned to the public’s safety, loyal to his employer,

and sometimes even brave -- it does not require him to be infallible.” (Emphasis

added.) Id. at 538-539, 668 N.E.2d at 902.

{¶ 25} Obviously, the proper place for appellees to have raised their

arguments concerning the viability of appellant’s claim for whistleblower

protection under R.C. 4113.52(A)(2) was in their motion for summary judgment at

the trial court level. This appellees failed to do. Accordingly, we will not address

the merits of appellees’ contentions that appellant is not a protected whistleblower

under the provisions of R.C. 4113.52(A)(2). These arguments may be raised before

the trial court on remand.

{¶ 26} In conclusion, we find that the grant of summary judgment in favor

of appellees on appellant’s statutory cause of action for violations of the

Whistleblower Statute was appropriate to the extent that appellant claimed

protection as a whistleblower under R.C. 4113.52(A)(1)(a). However, we find that

the trial court erred in granting summary judgment in favor of appellees on

appellant’s claim for protection under R.C. 4113.52(A)(2). Accordingly, we reject

appellant’s first proposition of law, but find his third proposition of law to be well

taken. We vacate that portion of the trial court’s judgment which dismissed

appellant’s claims for protection under R.C. 4113.52(A)(2), reinstate appellant’s

statutory claim that he was unlawfully retaliated against by appellees for having

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filed an authorized report under R.C. 4113.52(A)(2), and remand this cause to the

trial court for further proceedings on the statutory cause of action.

II

Greeley Claim

{¶ 27} In his second proposition of law, appellant contends that he also has

an independent common-law cause of action based upon Greeley, supra, 49 Ohio

St.3d 228, 551 N.E.2d 981, for wrongful discharge in violation of public policy.

Appellant suggests that he is entitled to maintain his Greeley claim either in

addition to or in lieu of his statutory cause of action. We agree with appellant’s

contentions in this regard. Accordingly, for the reasons that follow, we reverse that

portion of the court of appeals’ judgment which affirmed the grant of summary

judgment against appellant on the claim of wrongful discharge in violation of public

policy.4

{¶ 28} In Greeley, 49 Ohio St.3d 228, 551 N.E.2d 981, Robert Greeley, an

at-will employee, was allegedly discharged from his employment solely because

his employer had received a court order requiring the withholding of a specific

amount of Greeley’s wages for child support. Greeley sued his former employer

for wrongful discharge, since R.C. 3113.213(D) prohibits employers from using a

child support wage withholding order as a basis for discharging an employee. R.C.

3113.213(D) sets forth a monetary fine for employers who violate the statute but

does not provide for a private cause of action on behalf of the aggrieved employee.

In Greeley, we recognized a public-policy exception to the employment-at-will

doctrine and held that Greeley was entitled to maintain a cause of action in tort

4. The court of appeals apparently assumed (and the parties to this appeal apparently agree) that the

trial court granted summary judgment in favor of appellees on appellant’s claim of wrongful

discharge in violation of public policy. We accept this assumption for purposes of this appeal.

However, we note, in passing, that appellees moved for judgment on the pleadings (Civ.R. 12[C])

with respect to appellant’s claim of wrongful discharge in violation of public policy -- not for

summary judgment under Civ.R. 56.

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against his former employer for wrongful discharge. Id. at 233-235, 551 N.E.2d at

986-987. Specifically, in Greeley, at paragraphs one, two and three of the syllabus,

we held that:

“1. Public policy warrants an exception to the employment-at-will doctrine

when an employee is discharged or disciplined for a reason which is prohibited by

statute. (R.C. 3113.213[D], construed and applied.)

“2. Henceforth, the right of employers to terminate employment at will for

‘any cause’ no longer includes the discharge of an employee where the discharge

is in violation of a statute and thereby contravenes public policy. (Fawcett v. G.C.

Murphy & Co. [1976], 46 Ohio St.2d 245, 75 O.O.2d 291, 348 N.E.2d 144,

modified.)

“3. In Ohio, a cause of action for wrongful discharge in violation of public

policy may be brought in tort.”

{¶ 29} Additionally, in Greeley, we recognized that the public-policy

exception to the employment-at-will doctrine need not be premised solely upon a

violation of a specific statute. We said that: “Today, we only decide the question

of a public policy exception to the employment-at-will doctrine based on violation

of a specific statute. This is not to say that there may not be other public policy

exceptions to the doctrine but, of course, such exceptions would be required to be

of equally serious import as the violation of a statute.” (Emphasis added.) Id., 49

Ohio St.3d at 234-235, 551 N.E.2d at 987.

{¶ 30} In Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St.3d 541, 584

N.E.2d 729, syllabus, this court held that “[a]bsent statutory authority, there is no

common-law basis in tort for a wrongful discharge claim.” The syllabus in Tulloh

was supported by a majority composed of two justices and two visiting judges.

{¶ 31} However, in Painter v. Graley (1994), 70 Ohio St.3d 377, 639

N.E.2d 51, paragraphs two and three of the syllabus, we held that:

“2. To state a claim of wrongful discharge in violation of public policy, a

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plaintiff must allege facts demonstrating that the employer’s act of discharging him

contravened a ‘clear public policy.’ (Greeley v. Miami Valley Maintenance

Contractors, Inc. [1990], 49 Ohio St.3d 228, 551 N.E.2d 981, affirmed and

followed.)

“3. ‘Clear public policy’ sufficient to justify an exception to the

employment-at-will doctrine is not limited to public policy expressed by the General

Assembly in the form of statutory enactments, but may also be discerned as a matter

of law based on other sources, such as the Constitutions of Ohio and the United

States, administrative rules and regulations, and the common law. (Tulloh v.

Goodyear Atomic Corp. [1992], 62 Ohio St.3d 541, 584 N.E.2d 729, overruled.)”

(Emphasis added.)

{¶ 32} Therefore, Greeley and Painter recognize an exception to the

employment-at-will doctrine when an at-will employee is discharged or disciplined

for a reason that contravenes clear public policy. There is no question that Greeley

and Painter recognize that clear public policy may be ascertained from a statutory

provision or from any number of other sources. If there was ever any serious

question whether a specific statute had to be violated for Greeley to apply, Painter

answered that question in the negative by expressly overruling Tulloh, supra. See

Painter, paragraph three of the syllabus. The question whether the Greeley public-

policy exception to the employment-at-will doctrine applies only in cases involving

a statutory violation was soundly rejected not only in Painter, but in the recent case

of Collins v. Rizkana (1995), 73 Ohio St.3d 65, 652 N.E.2d 653.

{¶ 33} In determining whether appellant has a viable common-law cause of

action under Greeley and its progeny for tortious wrongful discharge in violation

of public policy, we reaffirm the following suggested analysis set forth in Painter,

supra, 70 Ohio St.3d at 384, 639 N.E.2d at 57, fn. 8:

“In reviewing future cases, Ohio courts may find useful the analysis of

Villanova Law Professor H. Perritt, who, based on review of cases throughout the

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country, has described the elements of the tort as follows:

“‘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 dismissing employees under circumstances like those involved in

the plaintiff’s dismissal would jeopardize the public policy (the jeopardy element).

“‘3. The plaintiff’s dismissal was motivated by conduct related to the public

policy (the causation element).

“‘4. The employer lacked overriding legitimate business justification for

the dismissal (the overriding justification element).’ (Emphasis sic.)

“H. Perritt, The Future of Wrongful Dismissal Claims: Where Does

Employer Self Interest Lie? (1989), 58 U.Cin.L.Rev. 397, 398-399.”

{¶ 34} We recently applied this same analysis in Collins, supra, 73 Ohio

St.3d at 69-74, 652 N.E.2d at 657-660, in determining that, in Ohio, a cause of

action may be brought for the tort of wrongful discharge in violation of public

policy based on sexual harassment/discrimination in the workplace. In Collins, we

noted that the clarity and jeopardy elements of the tort of wrongful discharge are

questions of law to be determined by the court. Id. at 70, 652 N.E.2d at 658.

Conversely, the causation and overriding justification elements are questions of fact

for the trier-of-fact. Id. Thus, given the procedural disposition of the case at bar,

we consider only the clarity and jeopardy elements of the tort of wrongful

discharge.

{¶ 35} Turning to the clarity element, we are easily able to identify at least

two main sources of public policy prohibiting the alleged retaliatory discharge of

appellant based on his report to OSHA. For the reasons that follow, we find that

each of these two sources of public policy is independently sufficient to justify an

exception to the employment-at-will doctrine and to warrant recognition of a cause

of action for wrongful discharge in violation of public policy.

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January Term, 1997

{¶ 36} The first main source of expressed public policy can be found in

Section 660(c), Title 29, U.S.Code, which specifically prohibits employers from

retaliating against employees (like appellant) who file OSHA complaints. Section

660(c) does not provide an employee with a private right of action against the

employer. Section 660(c)(1), Title 29, U.S.Code provides: “No person shall

discharge or in any manner discriminate against any employee because such

employee has filed any complaint or instituted or caused to be instituted any

proceeding under or related to this chapter [the federal Occupational Safety and

Health Act, Section 651 et seq., Title 29, U.S.Code] * * * or because of the exercise

by such employee on behalf of himself or others of any right afforded by this

chapter.” As explained in our discussion infra, this federal statute constitutes a

sufficiently clear expression of public policy to warrant an exception to the doctrine

of employment at will, since the federal statute is consistent with Ohio’s public

policy favoring workplace safety.

{¶ 37} Appellees suggest, however, that federal statutes cannot be used to

determine whether there is a sufficiently clear public policy to justify an exception

to the employment-at-will doctrine. In this regard, appellees point to paragraph

three of the syllabus in Painter, 70 Ohio St.3d 377, 639 N.E.2d 51, which does not

include any reference to federal statutes as providing a basis for a Greeley claim.

However, the analysis of the “clarity element” we employ in the case at bar is the

one specifically suggested in Painter, supra, at 384, 639 N.E.2d at 57, fn. 8. That

analysis mandates consideration of the question whether clear public policy is

manifested in a state or federal constitution, statute or administrative regulation, or

in the common law. Id. See, also, Collins, 73 Ohio St.3d at 69-70, 652 N.E.2d at

657-658, wherein we adopted the suggested analysis set forth in footnote eight of

the Painter decision, including the suggested analysis of the clarity element of the

tort of wrongful discharge. Furthermore, in Mers v. Dispatch Printing Co. (1985),

19 Ohio St.3d 100, 103, 19 OBR 261, 263, 483 N.E.2d 150, 153, we recognized

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that the employment-at-will doctrine in Ohio is not “without any defined limits.”

In Mers, we specifically cited Section 660(c), Title 29, U.S.Code as one example

of the type of laws forbidding retaliatory discharge. Id. at 103, 19 OBR at 263-264,

483 N.E.2d at 153, fn. 2.

{¶ 38} Courts in other jurisdictions have also determined that the public

policy embodied in the federal Occupational Safety and Health Act, Section 651 et

seq., Title 29, U.S.Code, may serve as a basis for recognition of a common-law

cause of action for wrongful discharge in violation of public policy. See, e.g.,

Cloutier v. Great Atlantic & Pacific Tea Co., Inc. (1981), 121 N.H. 915, 436 A.2d

1140, and Sorge v. Wright’s Knitwear Corp. (E.D.Pa.1993), 832 F.Supp. 118. In

this regard, we are particularly persuaded by the case of Cerracchio v. Alden Leeds,

Inc. (1988), 223 N.J. Super. 435, 538 A.2d 1292 (holding that at-will employee

discharged for filing OSHA complaint could maintain tort action for wrongful

discharge in violation of New Jersey’s public policy favoring workplace safety).

{¶ 39} Ohio’s public policy is clearly in keeping with the laudable

objectives of the federal Occupational Safety and Health Act. The public policy of

this state demands that employees be provided with a safe work environment and

that unsafe working conditions be corrected. This conclusion is supported by a host

of statutes and constitutional provisions favoring safety in the workplace. See, e.g.,

Sections 34 and 35, Article II of the Ohio Constitution; R.C. 4101.11 (duty of

employer to protect employees and frequenters); R.C. 4101.12 (duty of employer

to furnish safe place of employment); R.C. 4121.13 (safety and investigative duties

of the Administrator of Workers’ Compensation); R.C. 4121.17 (duty of the Bureau

of Workers’ Compensation to investigate petitions concerning unsafe employment

or places of employment); R.C. 4121.47 (no employer shall violate a specific safety

rule adopted by the Administrator of Workers’ Compensation or an Act of the

General Assembly to protect the lives, health and safety of employees); and R.C.

4121.48 (occupational safety loan program to reduce employment hazards and

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January Term, 1997

promote health, and safety of employees). Retaliation against employees who file

OSHA complaints concerning unsafe or unhealthy conditions in the workplace is

an absolute affront to Ohio’s public policy favoring workplace safety. Such

retaliation clearly contravenes the public policy of this state.

{¶ 40} The second main source of expressed public policy prohibiting

appellant’s alleged retaliatory discharge is R.C. 4113.52, which embodies a clear

public policy favoring whistleblowing. However, the public policy embodied in

the Whistleblower Statute is limited. By imposing strict and detailed requirements

on certain whistleblowers and restricting the statute’s applicability to a narrow set

of circumstances, the legislature clearly intended to encourage whistleblowing only

to the extent that the employee complies with the dictates of R.C. 4113.52. As we

held in Contreras, supra, 73 Ohio St.3d 244, 652 N.E.2d 940, syllabus: “In order

for an employee to be afforded protection as a ‘whistleblower,’ such employee must

strictly comply with the dictates of R.C. 4113.52. Failure to do so prevents the

employee from claiming the protections embodied in the statute.”

{¶ 41} In Contreras, the plaintiff-appellant, Phillip Contreras, was

allegedly discharged from his employment for whistleblowing. Contreras sued his

former employer for alleged violations of the Whistleblower Statute and for

wrongful discharge in violation of public policy. In Contreras, we found that

because Contreras had not complied with the specific reporting requirements of

R.C. 4113.52, he could not avail himself of the protections of the Whistleblower

Statute. Id., 73 Ohio St.3d at 249, 652 N.E.2d at 944. Further, we found that the

question whether Contreras was entitled to maintain a cause of action for the tort of

wrongful discharge was moot, stating: “If appellant was entitled to maintain a

Greeley claim, an issue that today we do not decide, then that claim would have to

be based upon the public policy embodied in R.C. 4113.52. Since appellant did not

comply with the statute in the first instance he would have no foundation for a

Greeley claim if, in fact, he was entitled to assert such a claim. Therefore, in this

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case the issue is moot.” Id. at 251, 652 N.E.2d at 946. The obvious implication of

Contreras is that an employee who fails to strictly comply with the requirements of

R.C. 4113.52 cannot base a Greeley claim solely upon the public policy embodied

in that statute.

{¶ 42} Here, appellant claims to have been wrongfully discharged for

having reported his employer to OSHA for what he apparently believed were

criminal violations of the Occupational Safety and Health Act and R.C. Chapters

3704 and 3734. In our discussion in Part I, supra, we determined that appellant did

not strictly comply with the requirements of R.C. 4113.52(A)(1)(a) in reporting his

employer to OSHA. Therefore, it is clear that appellant has no foundation for a

Greeley claim based on the public policy embodied in R.C. 4113.52 protecting

employees who report matters in accordance with R.C. 4113.52(A)(1)(a).

However, in our discussion in Part I, supra, we determined that the trial court erred

in dismissing appellant’s claim for whistleblower protection under R.C.

4113.52(A)(2). Therefore, assuming that appellant complied with the reporting

requirements of R.C. 4113.52(A)(2) and that appellees retaliated against him in a

manner contrary to the terms of the Whistleblower Statute, appellant has stated a

second and independent foundation for a Greeley claim premised upon the clear

public policy embodied in R.C. 4113.52.

{¶ 43} Contreras, supra, 73 Ohio St.3d 244, 652 N.E.2d 940, is readily

distinguishable from the case at bar. The plaintiff-employee in Contreras had no

viable statutory cause of action for protection under the Whistleblower Statute but

asserted a Greeley claim based solely on the public policy embodied in R.C.

4113.52. However, the public policy embodied in R.C. 4113.52 could not have

supported that claim, since the employee had failed in the first instance to comply

with the dictates of the statute. In the case at bar, appellant continues to have a

viable claim for whistleblower protection, since he arguably complied with R.C.

4113.52(A)(2) in reporting matters to OSHA. Thus, to the extent that he complied

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with R.C. 4113.52, appellant has established a firm foundation for a Greeley claim

for wrongful discharge in violation of the public policy embodied in the

Whistleblower Statute. Additionally, and in any event, appellant’s Greeley claim

is fully and independently supported by the first source of public policy identified

in our discussion, supra -- the clear public policy of this state encouraging safety in

the workplace and forbidding retaliation against those who file OSHA complaints

aimed at correcting unsafe and unhealthy working conditions.

{¶ 44} Having identified two separate and independent sources of clear

public policy justifying an exception to the employment-at-will doctrine, we must

now consider whether dismissing employees under circumstances like those

involved in this case would jeopardize the public policy (the jeopardy element).

{¶ 45} With respect to the first identified source of public policy, there is

no question that Ohio’s policy favoring workplace safety would be seriously

compromised (jeopardized) if employers were allowed to fire employees for

reporting matters to OSHA. Obviously, such retaliatory practices could deter

employees from reporting what they believe to be legitimate health and safety

concerns. Here, appellant complained to OSHA concerning the health and safety

of his work environment. He claims to have done so based upon a good faith belief

that the complaint was valid. According to appellant, he was retaliated against and

ultimately discharged for having filed his complaint with OSHA. Under these

circumstances, we find that the jeopardy element of the tort of wrongful discharge

has clearly been satisfied.

{¶ 46} The jeopardy analysis relating to the second identified source of

clear public policy, R.C. 4113.52, is a bit more difficult. This is so because R.C.

4113.52 contains certain civil remedies for qualifying whistleblowers. However,

the civil remedies set forth in R.C. 4113.52 are not adequate to fully compensate an

aggrieved employee who is discharged, disciplined, or otherwise retaliated against

in violation of the statute. In this regard, recognizing the right of an aggrieved

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employee who is retaliated against in violation of R.C. 4113.52 to maintain a

Greeley-based common-law cause of action for violation of the public policy

embodied in that statute would serve to encourage the legislative objectives of R.C.

4113.52 and complement the limited remedies available under the Whistleblower

Statute.

{¶ 47} Appellees suggest, however, that Greeley, supra, 49 Ohio St.3d 228,

551 N.E.2d 981, applies only in cases where an employee is discharged or

disciplined for a reason prohibited by a statute that provides the employee no

specific remedy. We reject such a narrow interpretation of Greeley. The syllabus

in Greeley does not say that. Greeley and its progeny stand for the proposition that,

in Ohio, the judicially recognized doctrine of employment at will has certain

limitations. One of those limitations is that the doctrine will not be followed in

cases where an at-will employee is discharged or disciplined for a reason that

violates a statute and thereby contravenes public policy. Greeley, supra,

paragraphs one and two of the syllabus. The syllabus in Greeley makes no

exception for statutes like R.C. 4113.52 that contain remedial provisions. That, of

course, was no mistake. The Greeley public-policy exception to the doctrine of

employment at will was not intended to apply only where a statute provides no civil

remedies. Rather, Greeley and its progeny are intended to bolster the public-policy

of this state and to advance the rights of employees who are discharged or

disciplined in contravention of clear public policy. Accord Amos v. Oakdale

Knitting Co. (1992), 331 N.C. 348, 356, 416 S.E.2d 166, 171 (holding that a public

policy exception to the employment-at-will doctrine adopted by the North Carolina

Supreme Court in Coman v. Thomas Mfg. Co. [1989], 325 N.C. 172, 381 S.E.2d

445, was “not just a remedial gap-filler. It is a judicially recognized outer limit to

a judicially created doctrine, designed to vindicate the rights of employees fired for

reasons offensive to the public policy of [North Carolina]. The existence of other

remedies, therefore, does not render the public policy exception moot.”). We are

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not now prepared nor have we ever been inclined to limit Greeley to the extent

urged by appellees.

{¶ 48} Additionally, recognizing the right of an at-will employee who is

discharged or disciplined in violation of R.C. 4113.52 to maintain a Greeley claim,

a statutory whistleblower claim, or both, would foster (not hinder) the public policy

of this state to protect whistleblowers from unlawful retaliatory measures.

Therefore, the mere existence of statutory remedies in R.C. 4113.52 does not,

without more, operate to bar recognition of appellant’s Greeley claim for tortious

wrongful discharge in violation of R.C. 4113.52. This conclusion is supported by

a number of our prior cases, including Helmick v. Cincinnati Word Processing, Inc.

(1989), 45 Ohio St.3d 131, 543 N.E.2d 1212; Kerans v. Porter Paint Co. (1991),

61 Ohio St.3d 486, 575 N.E.2d 428; and Collins, supra, 73 Ohio St.3d 65, 652

N.E.2d 653.

{¶ 49} In Helmick, at 133-135, 543 N.E.2d at 1215-1216, this court

determined that the provisions of R.C. Chapter 4112 prohibiting employment

discrimination based on sex did not preempt common-law intentional tort claims

arising out of acts of sexual discrimination in the workplace. We reached this

conclusion even though the statutory scheme provided specific remedies for the

victims of the sex discrimination. We noted that the relief available under the

statutory scheme did not parallel the damages available in a common-law tort

action. Id. We held that “[a]llowing a plaintiff to pursue common-law remedies in

lieu of the relief provided under R.C. Chapter 4112 creates no conflict and serves

to supplement the limited protection and coverage of that chapter.” Id. at paragraph

two of the syllabus.

{¶ 50} Similarly, in Kerans, supra, 61 Ohio St.3d 486, 575 N.E.2d 428,

paragraph one of the syllabus, we held that “[t]he workers’ compensation statute

does not provide the exclusive remedy for claims based upon sexual harassment in

the workplace.” We reached this conclusion, since the relief available under the

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statute would be insufficient to remedy the damages actually suffered by the victim.

Id. at 489, 575 N.E.2d at 431.

{¶ 51} Recently, in Collins, supra, 73 Ohio St.3d 65, 652 N.E.2d 653, we

recognized the right of an employee to maintain a Greeley claim based upon sexual

harassment/discrimination in the workplace. We did so despite the fact that the

employee in Collins was discriminated against in violation of the public policy

embodied in R.C. Chapter 4112, which sets forth specific remedies for victims of

sexual harassment/discrimination in the workplace. We note, however, that the

employee in Collins was unable to avail herself of the remedies set forth in R.C.

Chapter 4112 because her employer never employed four or more people and, thus,

did not come within the scope of R.C. Chapter 4112. Id. at 74, 652 N.E.2d at 660.

{¶ 52} It is clear from the reasoning of Helmick, Kerans, and perhaps even

Collins, supra, that R.C. 4113.52 does not provide the exclusive remedy for at-will

employees who are discharged or disciplined for a reason prohibited by the public

policy embodied in that statute. The remedies available pursuant to R.C. 4113.52

are not sufficient to provide the complete relief that would otherwise be available

in a Greeley-based cause of action for the tort of wrongful discharge. The statute

does not provide for certain compensatory damages and does not specifically

authorize recovery of punitive damages. Most important, the statute permits the

court to fashion an award based upon whatever the court deems to be appropriate.

See R.C. 4113.52(E). Clearly, the relief available to a whistleblower under a

statutory cause of action comes nowhere near the complete relief available in an

action based upon the Greeley public-policy exception to the doctrine of

employment at will. In our judgment, the relief available in an action for the tort

of wrongful discharge merely complements the limited statutory relief available

pursuant to R.C. 4113.52. Thus, we find that the mere existence of statutory

remedies for violations of R.C. 4113.52 does not operate as a bar to alternative

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common-law remedies for wrongful discharge in violation of the public policy

embodied in the Whistleblower Statute.

{¶ 53} Appellees note, however, that there was no cause of action in Ohio

for an employee who was discharged or disciplined for whistleblowing prior to the

enactment of R.C. 4113.52. Indeed, in 1986, in Phung v. Waste Mgt., Inc. (1986),

23 Ohio St.3d 100, 23 OBR 260, 491 N.E.2d 1114, paragraphs one and two of the

syllabus, a majority (5-2) of this court held that public policy does not require an

exception to the employment-at-will doctrine when an employee is discharged for

reporting to his employer that it is conducting its business in violation of law, and

that an at-will employee who is discharged for reporting such matters has no

common-law cause of action for wrongful discharge. In 1988, the General

Assembly enacted the first version of Ohio’s Whistleblower Statute (142 Ohio

Laws, Part II, 3590-3593) in apparent response to Phung. In enacting the current

and former versions of R.C. 4113.52 (which are virtually identical), the General

Assembly set forth the procedure a whistleblower must follow to gain statutory

protection and also set forth limited statutory remedies for violations of the statute.

The history of former R.C. 4113.52 reveals that the General Assembly had

considered making a broader range of civil remedies available to qualified

whistleblowers, but rejected that notion in favor of the more limited list of remedies

set forth in both the current and former versions of R.C. 4113.52(E). See, generally,

Trader v. People Working Cooperatively, Inc. (1996), 74 Ohio St.3d 1286, 1286-

1289, 660 N.E.2d 737, 737-739 (Wright, J., dissenting) (discussing the legislative

history of R.C. 4113.52).5 Appellees urge that this history of R.C. 4113.52 and the

5. It should be noted that the history of former R.C. 4113.52 discussed in the dissent in Trader v.

People Working Cooperatively, Inc. (1996), 74 Ohio St.3d 1286, 1286-1289, 660 N.E.2d 737, 737-

739 (Wright, J., dissenting), appears to be inaccurate. The Trader dissent relied on Rheinecker v.

Forest Laboratories (S.D.Ohio 1993), 826 F.Supp. 256, 258, fn. 2, as providing an accurate account

of the legislative proceedings on Sub.H.B. No. 406. But the Trader dissent failed to recognize that

statements made in footnote 2 of Rheinecker, supra, were apparently inaccurate and were

subsequently modified by corrective order in Rheinecker v. Forest Laboratories, Inc. (S.D.Ohio

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fact that the statute setS forth a “new” right of action and a list of available remedies

clearly demonstrate that it was the express will of the General Assembly in enacting

R.C. 4113.52 to set forth the exclusive remedies for whistleblowers and to preempt

any possible common-law remedies for retaliatory discharges based on

whistleblowing. Again, we disagree.

{¶ 54} As indicated immediately above, the legislative history of R.C.

4113.52 clearly reveals that the General Assembly considered and rejected the

notion of providing a wider range of statutory civil remedies for qualifying

whistleblowers who are discharged or disciplined in violation of the statute.

However, this fact alone does not answer the question whether the remedies set

forth in R.C. 4113.52 are intended to be exclusive. Nor is the fact that the

legislature enacted R.C. 4113.52 in apparent response to Phung a persuasive reason

to hold that the statute preempts the formation or recognition of an independent

cause of action in tort under Greeley and its progeny for wrongful discharge in

violation of public policy. Indeed, we find nothing in R.C. 4113.52 or its history

that compels the conclusion that it was the express will of the General Assembly

that any and all causes of action premised on whistleblowing must be commenced

and remedied exclusively under R.C. 4113.52. Rather, on the basis of the

information available, it is much more reasonable to conclude that the General

Assembly enacted R.C. 4113.52 to remedy the defect in the law caused by this

court’s decision in Phung, but never intended to preclude the future development

of the common law of this state in the area of “whistleblowing.”

{¶ 55} Furthermore, if the General Assembly had truly intended to make

R.C. 4113.52 the sole and exclusive remedy for whistleblowers, it certainly knew

1994), 855 F.Supp. 913. However, a review of the materials submitted in the case at bar concerning

the history of former R.C. 4113.52 clearly reveals that the General Assembly did, in fact, consider

making a broader range of remedies available to qualifying whistleblowers, but later rejected that

notion in favor of the more limited remedies set forth in the current and former versions of R.C.

4113.52(E).

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January Term, 1997

how to do so. R.C. 4113.52 was presumably patterned after R.C. 124.341, Ohio’s

whistleblower protection statute pertaining to state employees. R.C. 124.341 was

specifically considered by the General Assembly when it enacted R.C. 4113.52.

This is convincingly demonstrated by the fact that R.C. 4113.52(D) specifically

refers to R.C. 124.341. Additionally, the two statutes are similar in many respects.

However, R.C. 124.341(D), unlike any provision of R.C. 4113.52, expressly states

that the remedy set forth in the statute is the “sole and exclusive remedy” available

for a qualifying whistleblower. R.C. 124.341(D) provides: “If an appointing

authority takes any disciplinary or retaliatory action against a classified or

unclassified employee as a result of the employee’s having filed a report under

division (A) of this section, the employee’s sole and exclusive remedy,

notwithstanding any other provision of law, is to file an appeal with the state

personnel board of review * * *.” (Emphasis added.) The absence of such language

in R.C. 4113.52 can hardly be characterized as a mistake or oversight. Therefore,

we presume that it was not the intent of the General Assembly in enacting R.C.

4113.52 to set forth the sole and exclusive remedies for whistleblowers or to

preempt alternative common-law remedies for retaliatory discharges based on

whistleblowing.

{¶ 56} There are a number of Ohio appellate and federal district court cases

which have held that it was the express will of the General Assembly in enacting

R.C. 4113.52 to set forth the exclusive remedies for whistleblowers and that R.C.

4113.52 preempts any possible common-law remedies for retaliatory discharges

based on whistleblowing. See, e.g., Bear v. Geetronics, Inc. (1992), 83 Ohio

App.3d 163, 168-169, 614 N.E.2d 803, 807; Murray v. Clinton Petroleum Co. (July

16, 1993), Portage App. No. 92-P-0086, unreported; 1993 WL 268459, Rayel v.

Wackenhut Corp. (June 8, 1995), Cuyahoga App. No. 67459, unreported; Ungrady

v. Burns Internatl. Sec. Serv., Inc. (N.D.Ohio 1991), 767 F.Supp. 849, 852-853; and

Rheinecker v. Forest Laboratories, Inc. (S.D.Ohio 1993), 813 F.Supp. 1307, 1312-

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1314, reconsideration denied (1993), 826 F.Supp. 256. A synopsis of the view that

R.C. 4113.52 represents the sole and exclusive remedy for whistleblowers—a view

adopted by the trial court and court of appeals in the case at bar—was set forth in a

dissenting opinion to this court’s order dismissing the case of Trader, supra, 74

Ohio St.3d 1286, 1286-1289, 660 N.E.2d 737, 737-739 (Wright, J., dissenting).

However, the views expressed in the Trader dissent and the rationale supporting

those views are wholly inconsistent with the conclusions we reach here today that

R.C. 4113.52 has no preclusive effect on appellant’s Greeley claim for tortious

wrongful discharge in violation of public policy. In our discussion, supra, we have

generally addressed and rejected many of the major points made in the Trader

dissent, but there remains one particular aspect of that dissent we feel compelled to

address specifically.

{¶ 57} In his dissent in Trader, Justice Wright (now retired from the bench)

was joined by two current members of this court in stating that “[w]here a statute

such as [R.C. 4113.52] creates a right that was not actionable at common law, the

remedy prescribed is exclusive.” Id. at 1287, 660 N.E.2d at 737. To support this

proposition, the dissent in Trader cited Franklin Cty. Law Enforcement Assn. v.

Fraternal Order of Police (1991), 59 Ohio St.3d 167, 169, 572 N.E.2d 87, 89,

wherein this court quoted Zanesville v. Fannan (1895), 53 Ohio St. 605, 42 N.E.

703, paragraph two of the syllabus. Trader at 1287, 660 N.E.2d at 737. In

Zanesville, paragraph two of the syllabus, this court held: “Where a statute which

creates a new right, prescribes the remedy for its violation, the remedy is exclusive;

but when a new remedy is given by statute for a right of action existing independent

of it, without excluding other remedies already known to the law, the statutory

remedy is cumulative merely, and the party may pursue either at his option.” The

principle of law set forth in Zanesville that where a statute creates a new right and

prescribes the remedy for its violation, the remedy is exclusive, was derived from

the case of Dunn v. Kanmacher (1875), 26 Ohio St. 497. See Zanesville, supra, 53

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January Term, 1997

Ohio St. at 620, 42 N.E. at 706. In Dunn, supra, 26 Ohio St. at 504, the true

principle of law is established that “where a statute gives a new right, and also

prescribes the remedy for its violation, the remedy so prescribed must be taken as

exclusive, unless it appears from the statute that the legislature intended

otherwise.” (Emphasis added.) Therefore, the intent of the legislature is the

determining factor whether the remedies prescribed by R.C. 4113.52 are exclusive.

As we stated in our discussion, supra, the history and language of R.C. 4113.52

move us to conclude that the General Assembly did not intend for the remedies

prescribed by R.C. 4113.52 to be exclusive.

{¶ 58} In his dissent in Trader, 74 Ohio St.3d at 1287, 660 N.E.2d at 737-

738, Justice Wright also attempted to support the above statement that “[w]here a

statute such as [R.C. 4113.52] creates a right that was not actionable at common

law, the remedy prescribed is exclusive,” by citing yet another passage from

Franklin Cty. Law Enforcement Assn., supra, 59 Ohio St.3d at 169, 572 N.E.2d at

89-90, wherein we cited the following passages in Fletcher v. Coney Island, Inc.

(1956), 165 Ohio St. 150, 154-155, 59 O.O. 212, 214, 134 N.E.2d 371, 374-375:

“Where the General Assembly by statute creates a new right and at the same

time prescribes remedies or penalties for its violation, the courts may not intervene

and create an additional remedy. * * *

“If the General Assembly has provided a remedy for the enforcement of a

specific new right, a court may not on its own initiative apply another remedy it

deems appropriate.”

{¶ 59} However, Fletcher, supra, involved a situation wherein this court

held, and the parties to the litigation apparently agreed, that there would have been

absolutely no cause of action or remedy for the conduct at issue in Fletcher

(exclusion of an African-American from an amusement park) in the absence of

legislation, and that any right of action by the plaintiff was exclusively within the

province of the legislature. Id. at 153-154, 59 O.O. at 213-214, 134 N.E.2d at 373-

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374. Such is clearly not the case in the area of employment at will. See discussion

infra. Moreover, unlike R.C. 4113.52, the statutes at issue in Fletcher (former R.C.

2901.35 and 2901.36) contained at least some language indicating a legislative

intent to bar any further action above and beyond the remedies provided by statute.

Id. at 153-154, 59 O.O. at 213-214, 134 N.E.2d at 373-374. Indeed, in Fletcher, at

paragraph two of the syllabus, this court expressly held that the language of the

statutes at issue in that case demonstrated “a plain purpose and intent on the part of

the General Assembly to restrict the remedies or penalties available to those

expressly provided.”

{¶ 60} It is also interesting to note that in Rheinecker, supra, 826 F.Supp.

256, 257, the federal district court relied on the case of Commrs. v. Bank of Findley

(1877), 32 Ohio St. 194, in a manner similar to the way the dissent in Trader

indirectly relied on Zanesville and Fletcher. In Bank of Findley, at 200-201, this

court stated: “In such case, the rule is, says Lord Mansfield, in Rex v. Robinson, 2

Burr. 803: ‘That where a statute creates a new offense by prohibiting and making

unlawful anything which was lawful before, and appoints a specific remedy against

such new offense (not antecedently unlawful), by a particular sanction and a

particular method of proceeding, that particular method of proceeding must be

pursued and none other.’” (Emphasis sic.) However, in Bank of Findley, this court

specifically noted that the remedy provided by the statute at issue in that case

provided more than ample recovery for an aggrieved party and that the remedies

were “full, adequate and complete.” (Emphasis added.) Id., 32 Ohio St. at 200.

Conversely, the remedies set forth in R.C. 4113.52 are neither ample nor complete.

{¶ 61} Finally, the right of this court to recognize a common-law cause of

action and remedy for the wrongful discharge of an at-will employee cannot be

seriously questioned. “After all, who presides over the common law but the

courts?” Gallimore v. Children’s Hosp. Med. Ctr. (1993), 67 Ohio St.3d 244, 253,

617 N.E.2d 1052, 1059. The employment-at-will doctrine was judicially created,

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January Term, 1997

and it may be judicially abolished. Clearly, it is the responsibility of the Ohio

judiciary to determine whether sufficiently clear public policy reasons exist to

support a common-law exception to the doctrine of employment at will (see

Painter, supra, 70 Ohio St.3d at 384, 639 N.E.2d at 56) and to set the parameters

of those exceptions. Today, we recognize such an exception on the basis of Greeley

in circumstances where an at-will employee fully complies with the dictates of R.C.

4113.52 and is discharged or disciplined in violation of the statute. In so doing, we

specifically find that the common-law remedies available under Greeley do not

conflict with the limited statutory remedies available to a qualifying whistleblower

under R.C. 4113.52. In addition, we also recognize a separate exception to the

employment-at-will doctrine where an employee is discharged or disciplined for

reporting health and safety concerns to OSHA, and find this exception to be

applicable regardless whether the employee had complied with the dictates of R.C.

4113.52 in reporting such matters to OSHA.

{¶ 62} Accordingly, we hold that an at-will employee who is discharged or

disciplined for filing a complaint with OSHA concerning matters of health and

safety in the workplace is entitled to maintain a common-law tort action against the

employer for wrongful discharge/discipline in violation of public policy pursuant

to Greeley, 49 Ohio St.3d 228, 551 N.E.2d 981, and its progeny. Thus, appellant

is entitled to maintain a Greeley claim against appellees whether or not he complied

with the dictates of R.C. 4113.52 in reporting his employer to OSHA. We also hold

that R.C. 4113.52 does not preempt a common-law cause of action against an

employer who discharges or disciplines an employee in violation of that statute.

We further hold that an at-will employee who is discharged or disciplined in

violation of the public policy embodied in R.C. 4113.52 may maintain a common-

law cause of action against the employer pursuant to Greeley and its progeny so

long as that employee had fully complied with the statute and was subsequently

discharged or disciplined. The remedies available pursuant to R.C. 4113.52 for

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violations of the statute and the remedies available for the tort of wrongful

discharge are cumulative. Therefore, an at-will employee who is discharged or

disciplined in violation of R.C. 4113.52 may maintain a statutory cause of action

for the violation, a common-law cause of action in tort, or both, but is not entitled

to double recovery. Our holdings today necessitate that we overrule Phung, supra,

23 Ohio St.3d 100, 23 OBR 260, 491 N.E.2d 1114, which held that there exists no

exception to the doctrine of employment at will for employees who are discharged

or disciplined for whistleblowing. Id. at paragraphs one and two of the syllabus.

While we believe that the enactment of R.C. 4113.52 overruled Phung, we now do

so specifically in order to avoid any confusion. Phung was decided before R.C.

4113.52 became the law, and before our pronouncements in Greeley and its

progeny.

{¶ 63} For the foregoing reasons, appellant’s second proposition of law is

well taken. We reverse that portion of the court of appeals’ judgment which

affirmed the grant of summary judgment against appellant on the claim of wrongful

discharge in violation of public policy.

III

Emotional Distress

{¶ 64} In his fourth proposition of law, appellant contends that the court of

appeals erred in affirming the grant of summary judgment in favor of appellees on

appellant’s claims for negligent and intentional infliction of serious emotional

distress. We disagree.

{¶ 65} With respect to appellant’s claim for negligent infliction of serious

emotional distress, we can perceive of no basis for such a claim on the facts of this

case. As we noted in Heiner v. Moretuzzo (1995), 73 Ohio St.3d 80, 85-87, 652

N.E.2d 664, 668-670, recovery for negligent infliction of severe emotional distress

has typically been limited to instances where the plaintiff has either witnessed or

experienced a dangerous accident and/or was subjected to an actual physical peril.

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January Term, 1997

As to appellant’s claim for intentional infliction of emotional distress, we agree

with the trial court and the court of appeals that even after viewing the evidence in

a light most favorable to appellant, the record does not support a claim for

intentional infliction of emotional distress under the standards set forth in Yeager

v. Local Union 20 (1983), 6 Ohio St.3d 369, 374-375, 6 OBR 421, 426, 453 N.E.2d

666, 671-672.

{¶ 66} Accordingly, we reject appellant’s fourth proposition of law and

affirm the judgment of the court of appeals upholding the grant of summary

judgment in favor of appellees on appellant’s claims for negligent and intentional

infliction of serious emotional distress.

IV

Conclusion

{¶ 67} For all of the foregoing reasons, we affirm the judgment of the court

of appeals in part, reverse it in part, and remand this cause to the trial court for

further proceedings consistent with our opinion.

Judgment affirmed in part,

reversed in part,

and cause remanded.

RESNICK and F.E. SWEENEY, JJ., concur.

PFEIFER, J., concurs in syllabus and judgment only.

MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent in part and

concur in part.

__________________

PFEIFER, J., concurring in syllabus and judgment only.

{¶ 68} I concur in the syllabus and judgment of the majority. I am pleased

to see that a cause of action for whistleblowers has finally found its most fitting

forum—the common law. See Contreras v. Ferro Alloy Corp. (1995), 73 Ohio

St.3d 244, 251-253, 652 N.E.2d 940, 946-947 (Pfeifer, J., dissenting.). The

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Whistleblower Statute, R.C. 4413.52, was enacted only after this court failed to

appropriately extend common-law protection in Phung v. Waste Mgt, Inc. (1986),

23 Ohio St.3d 100, 23 OBR 260, 491 N.E.2d 114, a case which demonstrated that

such protection was truly needed. The Whistleblower Statute was not a response

to judicial action, but to judicial inaction. It was not an attempt to curb a common-

law right, but to create a right where the common law had failed

{¶ 69} At the same time we formally recognize a common-law cause of

action for whistleblowers, it is important to recognize the cause of action’s legal

corollary. The entry of this cause of action into the common law must allow for

the development of a wide range of reasonable defenses that will permit an

employer to tell the whole story of a termination.

__________________

COOK, J., dissenting in part and concurring in part.

{¶ 70} I concur only in Part III of the majority opinion. I respectfully

dissent from the majority decision to expand the R.C. 4113.52 remedies beyond

those established by the General Assembly because the majority fails to persuade

that its result is legitimately grounded in Ohio public policy. I also dissent because

the plaintiff failed to withstand the summary judgment challenge of the employer.

I

THE REMEDY PROVIDED IN R.C. 4113.52 IS EXCLUSIVE

{¶ 71} This decision by the majority is a troubling instance of this court

elevating itself above the General Assembly as architect of Ohio’s public policy.

Rather than interpreting the Whistleblower Statute, the majority sets its own policy

for the state based on the view of four justices that the statutory relief, as crafted by

the branch of government charged with that decision, is not “ample [or] complete.”

The majority, because it disagrees with the legislative decisions to limit remedies

provided in the state and federal statutes, acts beyond this court’s constitutional

authority to remedy the perceived shortcomings.

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{¶ 72} Pursuant to Greeley v. Miami Valley Maintenance Contrs., Inc.

(1990), 49 Ohio St.3d 228, 551 N.E.2d 981, the majority purports to base an

exception to at-will employment on “public policy” extracted from state and federal

statutory provisions. Recognition of a Greeley claim in this case, however, does

not act to further the public-policy determination of Congress or the General

Assembly. Instead, it circumvents the specific remedies provided in those statutes.

{¶ 73} As part of its rationale, the majority opinion takes license with the

historical doctrine of employment at will. It postulates that at-will employment is

a creature of common law, and therefore may be judicially abolished. Until today,

however, the Ohio judiciary has never recognized a common-law protection against

discharge for whistleblowing activity. Moreover, the Ohio Constitution gives the

legislature primary responsibility to protect the welfare of employees. Phung v.

Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 103, 23 OBR 260, 262, 491 N.E.2d

1114, 1117.

{¶ 74} As for the reliance on the Occupational Safety and Health Act of

1970 (“OSHA”), Section 651 et seq., Title 29, U.S. Code, it is questionable, even

as a general proposition, to look to a federal statute as a source of Ohio public

policy. The majority justifies its creation of a Greeley claim based on OSHA by

referring to the “clarity” element contained in the model from Professor Perritt’s

law review article, and employed in the lead opinion in Painter v. Graley (1994),

70 Ohio St.3d 377, 384, 639 N.E.2d 51, 57. Without meaningful analysis of the

relevant federal statute, the majority announces that OSHA creates a clear statement

of public policy favoring “workplace safety” and Greeley thereby permits a cause

of action for retaliatory discharge grounded in common law. Such reasoning is

dubious in light of the fact that although Section 660(c), Title 29, U.S. Code

provides whistleblowers a remedy for retaliatory discharge, that section does not

provide whistleblowers with a private cause of action. Taylor v. Brighton Corp.

(C.A.6, 1980), 616 F.2d 256. Instead, all claims are processed through the

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Secretary of Labor, who possesses broad authority to determine the investigatory

and prosecutorial action to be taken. Id. at 261-262.6

{¶ 75} This court’s creation of a Greeley claim based on the federal policy

to promote “workplace safety” permits an employee to do in Ohio courts that which

OSHA forbids in federal court -- to bring a private cause of action. The majority

adopts that portion of the federal public policy supporting its determination, while

ignoring the policy-driven balancing components of that legislation. As a

consequence, we are left with an exception to the employment-at-will doctrine

purportedly grounded on federal public policy that is more transparent than it is

clear.

{¶ 76} The majority additionally states that “Ohio’s public policy is clearly

in keeping with the laudable objectives of the federal Occupational Safety and

Health Act.” While this may be true, the branch of government properly charged

with making public-policy decisions -- the General Assembly -- has expressed

Ohio’s policy by enacting R.C. 4113.52. Like Section 660(c), Title 29, U.S. Code,

Ohio’s whistleblower statute recognizes an exception to at-will employment and

sets the bounds of available relief.

{¶ 77} In Contreras v. Ferro (1995), 73 Ohio St.3d 244, 652 N.E.2d 940,

syllabus, we recognized that relief under the Whistleblower Statute requires strict

compliance with the reporting dictates of R.C. 4113.52. Like the reporting

6. The majority points to this court’s opinion in Mers v. Dispatch Printing Co. (1985), 19 Ohio

St.3d 100, 19 OBR 261, 483 N.E.2d 150, as support for its adoption of the “public policy” embodied

in Section 660(c), Title 29, U.S. Code, to create a cause of action cognizable in Ohio courts. The

Mers citation of Section 660(c), however, was included to point out that at-will employment is not

without exception. Id. at 103, 19 OBR at 263-264, 483 N.E.2d at 153, fn.2. Mers was not a Greeley-

type case authorizing relief based on the “public policy” embodied in a statute or comparable

authority. Instead, Mers defined what inquiries were appropriate in determining whether an

employment contract (implied or express) exists and recognized a cause of action for at-will

employees based on promissory estoppel. Section 660(c) was cited only as a statutory remedy

available despite at-will employment. Mers did not suggest that a plaintiff could recover pursuant

to Section 660(c) outside the limits of the federal remedy.

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requirements, the limited remedies contained in R.C. 4113.52(E) reflect the General

Assembly’s public policy determination. Accordingly, the majority contravenes

the General Assembly’s expression of public-policy by authorizing whistleblower

relief beyond the statutory limits.

{¶ 78} The majority cites Collins v. Rizkana (1995), 73 Ohio St.3d 65, 70,

652 N.E.2d 653, 658, to support its determination that the “public policy”

embedded in a statute may be extracted to defeat that statute’s coverage provisions.7

In Collins, this court recognized the right of an employee to maintain a Greeley

claim based on policy embodied in R.C. Chapter 4112, despite the fact that

Collins’s employer did not meet the statutory definition of “employer.” Id. at 74,

652 N.E.2d at 661.

{¶ 79} R.C. 4112.99, which provides the penalty for a violation under R.C.

Chapter 4112, subjects a wrongdoer “to a civil action for damages, injunctive relief,

or any other appropriate relief.” Accordingly, the Collins court did not endorse an

enlargement of statutory remedies beyond those provided in R.C. Chapter 4112.

Unlike R.C. 4112.99, 4113.52(E) specifically limits the remedies available to a

discharged whistleblower to reinstatement of employment, back pay, reinstatement

of seniority and fringe benefits, litigation costs, attorney fees, and interest on back

pay.8

7. The majority also cites Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131,

543 N.E.2d 1212, as being supportive of this proposition. Helmick, however, held that intentional

torts long recognized at common law, although keyed to sexual misconduct, were not preempted by

the limited remedies available at that time pursuant to R.C. 4112.05(G). Id. at 134-135, 543 N.E.2d

at 1216. In the instant case, we are not dealing with a common-law tort independent of the statutory

violation. To the contrary, the Greeley claim is derivative of the statutory violation.

8. The majority misreads R.C. 4113.52(E) when it states that “the statute permits the court to fashion

an award based upon whatever the court deems to be appropriate.” The pertinent portion of division

(E) reads : “The court, in rendering a judgment for the employee in an action brought pursuant to

division (D) of this section, may order, as it determines appropriate, reinstatement of the employee

to the same position he held at the time of the disciplinary or retaliatory action and at the same site

of employment or to a comparable position at that site, the payment of back wages, full reinstatement

of fringe benefits and seniority rights, or any combination of these remedies.” (Emphasis added.)

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{¶ 80} Moreover, the majority opinion in Collins carefully noted:

“We do not mean to suggest that where a statute’s coverage provisions form

an essential part of its public policy, we may extract a policy from the statute and

use it to nullify the statute’s own coverage provisions.” Id. at 74, 652 N.E.2d at

661.

{¶ 81} Disregarding the Collins court’s caveat, the decision of the majority

allows a Greeley claim based on the public policy of R.C. 4113.52, which defeats

that statute’s coverage provisions. This result is achieved by recognizing a public

policy to promote “workplace safety” favoring employees while ignoring the policy

considerations reflected in R.C. 4113.52(E), which balances the statute by limiting

the available relief. Despite the majority’s assertions to the contrary, the expansion

of whistleblower remedies does not come as a natural evolution of common law --

it is in derogation of the common-law employment relationship. Under Greeley

and its progeny, such an expansion can be accomplished only when acting pursuant

to “sufficiently clear public policy,” such as a statute or other comparable authority.

Greeley, 49 Ohio St.3d at 233, 551 N.E.2d at 986; Painter, 70 Ohio St.3d at 384,

639 N.E.2d at 56.

{¶ 82} Here the majority extracts an overly broad public policy from both

R.C. 4113.52 and Section 660(c), Title 29, U.S. Code, while ignoring the specific

remedies provided by those statutes. Such action is beyond this court’s

constitutional authority. See, e.g., State v. Smorgala (1990), 50 Ohio St.3d 222,

223, 553 N.E.2d 672, 674; State ex rel. Bishop v. Mt. Orab Village School Dist. Bd.

Upon reading all the pertinent statutory language, it is clear that a court may order, as appropriate,

any combination of the remedies listed in that division. Division (E) does not authorize a court to

award extrastatutory remedies that it deems appropriate.

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of Edn. (1942), 139 Ohio St. 427, 438, 22 O.O. 494, 498, 40 N.E.2d 913, 919;

Primes v. Tyler (1975), 43 Ohio St.2d 195, 72 O.O.2d 112, 331 N.E.2d 723.9

The Trader Dissent

{¶ 83} The majority impugns the dissent in Trader v. People Working

Cooperatively, Inc. (1996), 74 Ohio St.3d 1286, 1286-1289, 660 N.E.2d 737, 737-

739. I joined that dissent and I continue to support its analysis as judicious.

{¶ 84} In criticizing the Trader dissent, the majority traces the controlling

language from Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police

(1991), 59 Ohio St.3d 167, 169, 572 N.E.2d 87, 89-90, which forms the cornerstone

of Justice Wright’s analysis, back to its origin. In Franklin Cty. Law Enforcement

Assn., the majority quoted paragraph two of the syllabus in Zanesville v. Fannan

(1895), 53 Ohio St. 605, 42 N.E. 703, which states:

“Where a statute which creates a new right, prescribes the remedy for its

violation, the remedy is exclusive ***.”

{¶ 85} As stated by the majority, the Zanesville court cited Dunn v.

Kanmacher (1875), 26 Ohio St. 497, in addition to other authorities, in support of

paragraph two of its syllabus. The majority declares that the “true” principle of

law, as stated in Dunn, provides that “where a statute gives a new right, and also

prescribes the remedy for its violation, the remedy so prescribed must be taken as

exclusive, unless it appears from the statute that the legislature intended

otherwise.” (Emphasis added in Zanesville.) However, in applying the Dunn

standard to this case, the majority reverses the presumption of exclusivity.

9. It is noteworthy that the lead opinion in Painter, supra, echoed the following language from

Smorgala, supra, 50 Ohio St.3d at 223, 553 N.E.2d at 674, in denying the Greeley claim under

consideration: “Where the General Assembly has spoken, and in so speaking violated no

constitutional provision, the courts of this state must not contravene the legislature's expression of

public policy. ‘Judicial policy preferences may not be used to override valid legislative enactments,

for the General Assembly should be the final arbiter of public policy.’" Painter, 70 Ohio St.3d at

385, 639 N.E.2d at 57.

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{¶ 86} The majority concludes that the General Assembly did not intend the

R.C. 4113.52 remedy to be exclusive because it was not so labeled. Unlike the

Trader dissent, the majority cites no statutory language or legislative history

supporting its conclusion. It merely cites the absence of language making the

limited remedies available in R.C. 4113.52 “sole and exclusive.”

{¶ 87} The majority relies heavily on the fact that R.C. 124.341 labels its

remedy as “sole and exclusive,” while R.C. 4113.52 does not. R.C. 124.341

provides public employees relief similar to that contained in R.C. 4113.52, and

expressly labels itself as a public employee’s “sole and exclusive” remedy. R.C.

124.341(D). Little, however, can be inferred from the absence of similar language

in R.C. 4113.52.

{¶ 88} For instance, it is possible that the General Assembly included the

“sole and exclusive” language in R.C. 124.341 because that section comprehends

parties subject to collective bargaining agreements, which generally provide

grievance procedures as the exclusive remedy. Compare R.C. 4117.10(A) with

R.C. 4113.53 (R.C. 4117.10[A] requires the General Assembly to specify when any

other provision prevails over that section’s general policy favoring resolution

pursuant to an agreed-upon grievance procedure, while R.C. 4113.53 expressly

permits private employees subject to a collective bargaining agreement to process

their grievance through the channels provided in the agreement.). In any event, it

is unsound to suggest that the “sole and exclusive” language was purposely

excluded from R.C. 4113.52 to permit nonexistent alternative remedies. After all,

the legislature enacted R.C. 4113.52 in response to this court’s decision in Phung,

supra, 23 Ohio St.3d 100, 23 OBR 260, 491 N.E.2d 1114, paragraph one of the

syllabus, declaring that common law offered whistleblowers no protection against

discharge from at-will employment.

{¶ 89} Having traced the exclusivity presumption, the Trader dissent noted

that whistleblower claims were not actionable at common law and that the

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enactment of R.C. 4113.52 was a legislative response to this court’s holding in

Phung. Trader, 74 Ohio St.3d at 1286-1287, 660 N.E.2d at 737. The dissent went

on to present the legislative history of R.C. 4113.52, demonstrating that the General

Assembly considered and rejected provisions for actual and punitive damages, id.

at 1287, 660 N.E.2d at 738,10 and adopted Senate amendments, enacted in R.C.

4113.52(D), requiring that whistleblower remedies be limited to those identified in

the statute. Id. at 1287, 660 N.E.2d at 738.11

{¶ 90} By contrast, neither the appellant nor the majority in his stead has

demonstrated legislative intent sufficient to overcome the presumption that R.C.

4113.52(E) is intended to provide a whistleblower with an exclusive remedy for

violations of that section. Therefore, the remedy provided in R.C. 4113.52 must be

taken as exclusive.

II

SUMMARY JUDGMENT

{¶ 91} I also dissent on the basis that the trial and appellate courts correctly

held that Kulch failed to withstand the summary judgment challenge of Structural

Fibers. I am compelled to address these issues separately, given that the majority

eviscerates summary judgment in order to reach its ultimate holding that expands

Greeley and its progeny.

10. Despite the majority’s attempt to undermine the sound reasoning in the Trader dissent by

pointing out that footnote 2 of Rheinecker v. Forest Laboratories (S.D.Ohio 1993), 826 F.Supp.

256, 258, was inaccurate and corrected in Rheinecker v. Forest Laboratories, Inc. (S.D.Ohio 1994),

855 F.Supp. 913, the majority concedes, as it must, that the General Assembly considered and

rejected a broader range of remedies than those set forth in R.C. 4113.52(E). In fact, a review of

H.B. No. 406 reveals that the bill, as introduced, would have authorized an award of actual damages,

while the enacted version of that statute limits the available remedies to those listed in Division (E)

of R.C. 4113.52.

11. As noted in footnote 2 to Trader, supra, 74 Ohio St.3d at 1287, 660 N.E.2d at 738, “The House

accepted all Senate amendments to the bill. (142 Ohio House Journal 1581 [March 10, 1988].) See

R.C. 4113.52(E). This amendment distinguishes the whistleblower statute from statutes such as

R.C. 4112.99, which authorizes a court to award specified remedies ‘or any other appropriate

relief.’”

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{¶ 92} It is of critical importance to note at the outset that without the R.C.

4113.52(A)(2) claim, this case is indistinguishable from Contreras, 73 Ohio St.3d

244, 652 N.E.2d 940. Knowing that the plausibility of Kulch’s Greeley claim is

entirely dependent upon the (A)(2) claim, the majority permits its survival at the

expense of the continued vitality of summary judgment practice. For the reasons

expressed in the dissent to Dresher v. Burt (1996), 75 Ohio St.3d 280, 299-302, 662

N.E.2d 264, 278-280, I would find that Structural Fibers satisfied its burden under

summary judgment when it repeatedly asserted that it was entitled to judgment as

to Kulch’s entire R.C. 4113.52 whistleblower claim. As acknowledged by Kulch

in his brief to this court, Structural Fibers specifically pointed to both the R.C.

4113.52 (A)(1)(a) and the (A)(2) claims. In Kulch’s brief, he admits “it is clear that

a separate claim under section (A)(2) was made by plaintiff.* * * Even defendant

pointed out that fact in its own summary judgment motion.” (Emphasis added.)

{¶ 93} Nonetheless, the majority, relying and expanding upon the plurality

opinion in Dresher, holds that Structural Fibers is not entitled to summary judgment

on Kulch’s (A)(2) claim because Structural Fibers never discharged its burden to

produce evidence to disprove it. This holding is specious in light of the fact that

throughout the proceedings in this case, Kulch has argued his case solely as an R.C.

4113.52(A)(1)(a) claim. For example, prior to filing its motion for summary

judgment, Structural Fibers argued under Civ.R. 12(B)(6) that Count One of the

complaint failed to support Kulch’s claim that his employer retaliated against him

“‘for making any report authorized by division (A)(1) or (2).’” (Emphasis added.)

In response, Kulch addressed only (A)(1)(a), citing that subsection at least nine

times and never once citing (A)(2).

{¶ 94} Moreover, oral argument before this court focused entirely on

whether the reporting requirements of (A)(1)(a) had been followed and when the

twenty-four-hour waiting period of (A)(1)(a) commenced, without a single

reference to (A)(2) or its reporting requirements.

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{¶ 95} Although Kulch now admits that he was on notice that Structural

Fibers moved for summary judgment on his entire R.C. 4113.52 claim, Kulch never

argued he could report directly to OSHA under (A)(2). If Kulch wanted to maintain

his claim that (A)(2) permitted him to report directly to OSHA, he should have so

argued in response to the motions to dismiss or for summary judgment rather than

on appeal.

{¶ 96} The majority’s application of Dresher to hold that Structural Fibers

should be denied summary judgment because it failed to disprove a claim that

Kulch never identified further debilitates the purposes of summary judgment.

Summary judgment allows the early assessment of the merits of claims, pre-trial

dismissal of meritless claims, and defining and narrowing issues for trial. However,

none of these goals can be accomplished if the plaintiff need not identify its specific

theory of recovery.

{¶ 97} As a result of the holdings in both Dresher and this case, to be

entitled to summary judgment, defendant-movants must not only disprove

plaintiff’s case, they must also define plaintiff’s case. In contrast, plaintiff-

nonmovants have no duty to delineate their theories or to disclose the evidence to

support them prior to trial. Instead, under the majority holding, it is the trial court

that must identify all of plaintiff’s possible claims and theories when considering

summary judgment. If the lesson in Dresher was to object to interrogatories, the

lesson here is to plead vaguely. Id., 75 Ohio St.3d at 302, 662 N.E.2d at 280 (Cook,

J., dissenting). The majority errs in not requiring the same clarity and specificity

of plaintiffs in their pleading and motion practice that it seeks to require of

defendants.

{¶ 98} Kulch’s failure to demonstrate that his claims under the

Whistleblower statute survived because he could directly report to OSHA under

(A)(2) should prove fatal not only to the (A)(2) claim, but also to his Greeley claim.

Contreras, supra.

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III

CONCLUSION

{¶ 99} In accordance with the foregoing, I would affirm the judgment of the

court of appeals which affirmed summary judgment in favor of this employer on

the Greeley claim.

MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing

opinion.

__________________

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