Petition for Writ of Certiorari — Structural Fibers, Inc. v. Kulch

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Supreme Court, U.S.

- FILED

97 +478 SEP 16 1997

No.

FREE PF THE PP erie

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1996

STRUCTURAL FIBERS, INC. and

ESSEF CORPORATION,

Petitioner,

JAMES KULCH,

Respondent.

On PetiTIon For A Writ OF CERTIORARI

To Tue SuPprREME Court OF OHIO

PETITION FOR WRIT OF CERTIORARI

Grecory P. SZuTER

COUNSEL OF RECORD

ROETZEL & ANDRESS

1650 One CLEVELAND CENTER

CLEVELAND, Ono 44114

(216) 623-0150

COUNSEL FOR PETITIONER

BECKER GALLAGHER LEGAL PUBLISHING, INC., CINCINNATI, OHIO 800-890-5001

QUESTIONS PRESENTED FOR REVIEW

a Whether the existence of a state retaliatory discharge

cause of action based solely on filing Occupational

Safety & Health Act complaints presents a conflict

with the purposes and objectives of the Act so as to be

preempted, and if not:

a. Whether a state employment tort cause of

action based on violation of the Occupational

Safety and Health Act, Section 11(c), enlarges

or affects state law in any other manner that is

prohibited by Section 4(b)(4) of the Act, 29

U.S.C. §653(b)(4).

b. Whether interpreting a state statute to include

filing a complaint under the Occupational

Safety and Health Act enlarges or affects state

law in any other manner that is prohibited by

Section 4(b)(4) of the Act, 29 U.S.C.

§653(b)(4).

S. Whether a state employment tort cause of

action based upon violation of a state statute

that protects filing Occupational Safety &

Health Act complaints enlarges or affects state

law in any other manner that is prohibited by

Section 4(b)(4) of the Act, 29 U.S.C.

§653(b)(4).

2. Whether statutory neutrality of the Occupational

Safety and Health Act, 29 U.S.C. §653(b)(4),

precludes the states from incorporating a violation of

the Act into their law of employment torts through

judicial decision, and in the absence of federally

approved legislation under 29 U.S.C. §667(b).

PARTIES TO THE PROCEEDING

James Kulch, Respondent and Plaintiff-Appellant

beiow, is an individual resident of Geauga County of Ohio

and formerly employed by Petitioner.

Petitioner, Defendant-Appellee below, Structural

Fibers, Inc. is a former name of Essef Corporation which is

also a named defendant. Essef Corporation is headquartered

in Geauga County, Ohio where it has maintained an

unincorporated operating division known as "Structural

Fibers" where Respondent was employed. The current name

of the division is "Structural NA." No subsidiary corporation

is a party.

Ii.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR

I eres yk ew sk kk eee ke i

PARTIES TO THE PROCEEDINGS ........ ii

TAs OF CONTENTS ............... iii

TABLE OF AUTHORITIES............. Vii

NE lc a a 4 aa 9s bo 0-0 V6 <a 1

STATEMENT OF FACTS ............... 1

Description of Proceedings Below .......... 2

ARGUMENT:

Petitioner's Legal Theory ............... 12

Reasons for Granting Review ............ 16

A. The Important Federal Question of

OSHA's Neutrality with Respect to State Law

Should be Decided by this Court and Has

eae Ce Pe ea ea ek es be oo 18

B. The Ohio Supreme Court Decision

Conflicts with Other Courts' Interpretation of

the OSHA Neutrality Statute. ............ 23

ill

Va: See ily ek OO LUGE kes 30

IX. APPENDIX

Appendix A

Supreme Court of Ohio

Reconsideration Entry denying Motion

ee A2

Appendix B

Motion for Reconsideration and Re-

Hearing of the Supreme Court of Ohio

by Defendant-Appellee............ A3

Appendix C

Judgment Entry and Opinion of the

Supreme Court of Ohio .......... A35

Appendix D

Supreme Court of Ohio Entry

CF ae re ae A97

Appendix E

Supreme Court of Ohio Merits Brief of

Appellee Structural Fibers Proposition

of Law and (excerpts) ........... A99

Appendix F

Supreme Court of Ohio Merits Brief of

Appellant James Kulch Proposition of

LOW OR CORONIE) 2 wk cee A120

Appendix G

Supreme Court of Ohio Entry

(corrected) granting stay .........

Appendix H —

Defendant-Appellee's Memorandum in

Response to Plaintiff-Appellant's

Memorandum in Support. of

PR oc SS es ce eae ees

Appendix I

Plaintiff-Appellant James CKulch's

Memorandum in Support. of

ere he

Appendix J

Judgment Entry and Opinion of the

Court of Appeals of Ohio, Eleventh

District, Geauga County, Ohio

Appendix K

Court of Appeals Merits Brief of

Appellee Structural Fibers

a dela OR ae eae

Appendix L

Court of Appeals Merits Brief of

Appellant James Kulch (excerpts) .. .

Appendix M

Judgment Entry of the Geauga County,

Ohio Court of Common Pleas .....

A129

A158

. Al8gl

A194

A210

Appendix N

U.S. District Court, Northern

District Eastern Division Remand

| Sera Ole rare A218

Appendix O

Williams v. J.I. Case Company,

963 F.2d 374 (Table) (Case No.

91-5706, 6th Cir. May 22, 1992,

unpublished) 1992 W.L. 111809 ... A221

Appendix P

Relevant Statutes ............. A229

OHIO WHISTLEBLOWER STATUTE

Ohio Revised Code §4113.52 ..... A229

OCCUPATIONAL SAFETY AND

HEALTH ACT

29 U.S.C. §651, OSHA Section2 .. A232

29 U.S.C. §652, OSHA Section3 .. A233

29 U.S.C. §653(b),

OSHA Section 4(b) ....... A233

29 U.S.C. §654(a),

OSHA Section 5(a) ....... A234

29 U.S.C. §660(c),

OSHA Section Il(c) ...... A234

29 U.S.C. §667(a),(b),

OSHA Section 18(a),(b) .... A235

ENERGY REORGANIZATION ACT

4S UB. GIP he rie ween A236

CODE OF FEDERAL REGULATIONS

SP GPs SOLED cc eae A237

29 C.F.R. 1902.4(c)(2)(v) ....... A237

ro ee | A237

Vii

TABLE OF AUTHORITIES

DECISIONS

United States Supreme Court

English v. General Electric,

496 U.S. 72, 110 S.Ct. 2270 (1990) ... 18, 19-20

Gade v. National Solid Waste Management Association,

505 U.S. 88, 112 S.Ct. 2374 (1992) ..... 18, 19

Circuit Courts of Appeal

Albrecht v. Baltimore & Ohio R.R.,

808 F.2d 329 (4th Cir. 1987) ............ 26

Bailey v. V & O Press Co.,

iif 3. lf | rer 28

Byrd v. Fieldcrest Mills,

G90 Fe 1525 (5G CH. 197K. nn ees 26

Ellis v. Chase Communications,

63 F.3d 473 (6th Cir. 1995) .......... 27, 28

Fragassi v. Neiburger,

269 Ill. App. 633, 646 N.E.2d 315

ee re bd so ac ek eo ke 20

Melerine v. Avondale,

654 F.2d 706 (Sth Cir. 1981) ......... 13, 25

Vili

Merritt v. Bethlehem Steel Corp.,

S75 &.20 GUS (7th Cir. 1969) ............ 25

Minichello v. U.S. Industries, Inc. .,

756 F.2d 26 (6th Cir. 1985) ........ 25, 27, 28

Paige v. Henry J. Kaiser Co.,

826 F.2d 857 (9th Cir. 1987) ............ 22

Pedraza v. Shell Oil Co..,

942 F.2d 48 (Ist Cir. 1991) at54 ......... 16

Practico v. Portland Terminal Co.,

aes F208 aoe (at Ce. 1965) ......... 16, 26

Reis v. National R.R. Passenger Co.,

960 F.2d 1156 (3rd Cir. 1992) ... 16, 24, 25, 28

Rolick v. Collins Pine Company,

975 F.2d 1009 (3rd Cir. 1992)

cert. denied 507 U.S. 973, 113 S.Ct. 1417,

pee ee Ee re 28

Russell v. Bartley,

494 F.2d 334 (6th Cir. 1974) ............ 28

Taylor v. Brighton Corp..,

616 F.2d 256 (6th Cir. 1980) ............ 16

Teal v. E.I. Dupont de Nemours & Co.,

728 F.2d 799 (6th Cir. 1984) ......... 27, 28

Williams, et al. J.I. Case Company, et al.,

963 F.2d 374 (Table),

(6th Cir., Case No. 91-5700,

May 22, 1992 unpublished)

SUE Wis GREY sv cee cs eae

Federal District Courts

Bertholf v. Burlington Northern R.R..,

402 F.Supp. 171, 173 (E.D. Wash. 1975) ...

Braun v. Kelsey,

635 F.Supp. 75 (E.D. Pa., 1986) .....

Kilpatrick v. Delaware County Soc. for

Prevention of Cruelty to Animals,

632 F.Supp. 542 (E.D. Pa., 1986) ....

McElroy v. S.O.S. International, Inc. .,

730 F.Supp 803 (N.D. Ill., 1989) at 807

Phillips v. General Electric Co..,

881 F.Supp. 1553 (N.D. Ala., 1995) ....

Sorge v. Right's Knitwear Corp.

(E.D. Penn., 1993) 832 F.Supp. 118 ..

State Courts

Canape v. Petersen d/b/a/ Western Hills Court,

897 P.2d 762 (Colo. 1995) .........

‘nb te:

Cerracchio v. Alden Leeds, Inc.,

538 A.2d 1292 (N.J. Super A.D., 1988) .... 21

Cloutier v. Great Atlantic & Pacific Tea Co.,Inc..,

121 N.H. 915, 436 A2d 1140 (N.H. 1981) ... 22

Collins v. Rizkana,

yege ) & Ta 6) .) 10

Contreras v. Ferro Corp. et al.,

73 Ohio St. 3d. 244 (Ohio 1995) .......... 24

Corbin v. Sinclair Marketing, Inc..,

684 P.2d 265 (Colo. App. 1984) .......... 23

Greeley v. Miami Valley Maintenance Contrs., Inc.,

49 Ohio St.3d 228,

551 N.E.2d 981 (Ohio 1990) ........ 7; 4a

Hebel v. Conrail,

473 N.B.26 G32 (ind. 1965) .... 2... 14... 26

Hernandez v. Martin Chevrolet,

72 Ohio St. 3d 302 (Ohio 1995) .......... 27

Hayes v. Zoological Society of Cincinnati,

73 Ohio St.3d 254,

652 N.E.2d 948 (Ohio 1995) .............

Kelley v. Howard S. Wright Const. Co.,

90 Wash. 2d 323,

ee ee oe, Ce. EPO we se 27

Koll v. Manatt's Transp. Co.,

253 N.W.2d 265, 270 (lowa 1977) ......... 27

Kulch v. Structural Fibers, Inc.,

78 Ohio St. 3d 134 (Ohio 1997) ... 1,2, 5-8, 10

Lapore v. National Tool & Mfg. Co..,

540 A.2d 1296 (N.J. Super AD 1988)....... 21

Painters v. Graley,

70 Ohio St. 3d 377, 639 N.E. 2d 51

EE 3 bee ae oe ee 9, 10

Sanchez v. Galey,

112 Idaho 609, 733 P.2d 1234 (Idaho 1986) ... 27

Tulloh v. Goodyear Atomic Corp.,

62 Ohio St.3d 541,

584 N.E. 2d 729 (Ohio 1994) ............. 9

Valdez v. Cillessen & Son, Inc.,

105 N.M. 575, 578, 734 P.2d 1258,

1261 (New Mexico 1987)............... 26

Walsh v. Consolidated Freightways, Inc.,

278 Or 547, 563 P.2d 1205 (Oregon 1977) ... 23

Wendland v. Ridgefield Constr. Serv., Inc.,

184 Conn. 173, 439 A.2d 954, 956-7

SR SEE & oan & 0c Sain ewe 2b oe ers 26

Ohio Revised Code

Ohio Whistleblower Act, R.C. 4113.52 .......... 2

Aw Se (3 + 50 5 bss D8 ow eee eee 3,4,5

RA CEP «Shee ene 3,4,5,6,7,8,12,17,29

OD Re AE Ie et Or A WY OY

R.C. Chapters 3704 and 3734..............-.-. 4,5,7

United States Code

EE l

I Gg ww ws ee ee ee ee 1

29 U.S.C. §651(a), Section 2(a) ..........--.-.-. 17

29 U.S.C. §653(b), OSHA Section 4(b)(4)

Eide eae wwe 8 8s 7,8,12,13,15,16,17,18,19

ee See ee 20,21,22,23,25,26,27,28,29

29 U.S.C. §654(a), OSHA Section 5

EL LL EEE 22,24,27

29 U.S.C. §660(c), OSHA Section 11(c) . . 2,6,10,11,15,

a 20,21,22,24,29

29 U.S.C. §667(a), OSHA Section 18(a)...... 12,14,18

29 U.S.C. §667(b), OSHA Section 18(b) .. . 14,15,17,18

Energy Reorganization Act

EEE EE 20

Code of Federal Regulations

en ee ee 15

29 C.F.R. 1902.4(cM2M(v) ....-- eee eee: 15

y doe Se | ree Peek eae ee 15

pee ROS eer eee ee 15

Legislative Materials

Occupational Safety and Health Act of 1969; Hearings on

H.R. 843, H.R. 3809, H.R. 4294, and H.R. 13373 before the

Select Subcomm. on Education and Labor ....... 15,16

S. 2788 and H.R. 13373, 91st Cong., Ist Sess. (1969)

reprinted in Subcommitte on Labor, The Senate Committee on

Labor and Public Welfare, 92nd Cong. Ist Sess.

LEGISLATIVE HISTORY OF THE OCCUPATIONAL

SAFETY & HEALTH ACT OF 1970 (Comm. Print.

Se 06 C40 5 so ee a ee eee 19

Other Authorities

Note: Federal OSHA Preemption of State Criminal

Prosecutions for Industrial Accidents, 101 Harv. L. Rev. 535,

Te er Sk eee ee ee ee 15

Parritt, Jr. The Future of Wrongful Dismissal Claims: Where

does the Employer's Self Interest Lie? 58 University of

Cincinnati Law Review 1989, No.2 ........ 9-10, 23

W. Prosser, THE LAW OF TORTS §3 .......... 23

RESTATEMENT (SECOND) OF TORTS §286 (1965)

XIV

wre vets

a ety

JURISDICTION

This Petition for Writ of Certiorari seeks the

discretionary review of the decision of the Ohio Supreme

Court in Kulch v. Structural Fibers, Inc. , 78 Ohio St. 3d 134

(Ohio 1997), opinion and judgment entry dated April 16,

1997 which was subject to a Motion for Reconsideration and

Rehearing filed on April 26, 1997 and denied by the Ohio

Supreme Court on June 18, 1997. Both are reproduced in

Petitioner's Appendix at Appendix A and C. References to

the decision on the merits herein will be to the official report.

Statutory basis for review by certiorari being sought

hereunder is 28 U.S.C.S. 1257(a), 28 U.S.C.S. 2101(2).

This jurisdiction if further elaborated in the Rules of the

Supreme Court of United States, Part III, Rules 10, 12, 13,

and 14.

STATEMENT OF FACTS

Structural Fibers terminated the employment of James

Kulch, an hourly factory worker, in October 1991 because of

videotaped dishonesty’. The videotaping was the culmination

of an investigation initiated by another hourly factory co-

worker who had informed on him. Mr. Kulch, nine months

earlier, unknown to the employer, had filed a complaint with

the Occupational Safety and Health Administration (OSHA)

concerning the air borne chemicals in an area of the plant

where he was to be trained. OSHA had investigated and,

although it did issue a citation for certain other minor items

discovered on inspection which were settled by the employer,

OSHA found no violation of the air borne chemical standard.

| Petitioner understands Respondent will be featured by ABC

Nightline in the Winter 1997-1998 season.

Afterwards during the next six months, Mr. Kulch proceeded

to publicly take credit for filing the OSHA complaint. He

also presented continual resistance to legitimate regulation of

his work by his employer. As a result, he misinterpreted

certain events from his surroundings as being retaliatory on

account of his filing the OSHA complaint rather than because

of the objective factual circumstances caused by him. His

two retaliation complaints to the Department of Labor (DOL)

under OSHA Section 11(c), including the one as to his

discharge, were investigated, dismissed by the DOL and not

appealed by him.

Two months after his employment termination, Mr.

Kulch suffered a second heart attack. He then filed the

instant lawsuit based upon the Ohio whistleblower statute,

R.C. 4113.52, and upon the Ohio common law doctrine of

public policy discharge tort, otherwise known as tortious or

retaliatory discharge in other jurisdictions’.

Description of Proceedings Below

The Ohio Supreme Court, in Kulch v. Structural

Fibers, Inc., 78 Ohio St. 3d, 134 (Ohio 1997) declared that

OSHA, particularly Section 11(c), 29 U.S.C. §660(c), could

serve as a basis for the public policy tort independent of any

State statute, Jd. at 151. Secondly, the court remanded the

interpretation of the state whistleblower statute to the trial

court for decision on whether OSHA could be read into the

State statute as a state environmental law and thus also support

2 The first was in 1990, prior to all events relating to this case.

3 The case was removed to the U.S. District Court for the Northern

District of Ohio based on ERISA and was remanded to State Court

when Mr. Kulch disavowed an ERISA theory of liability. Appendix

a tortious discharge claim based on the state statutory

violation. Jd. at 148 and 161.

Mr. Kulch's statutory theory was, as an OSHA

complainant, that he was protected from retaliation under the

Ohio whistleblower's statute and that he had been discharged

in contravention of its terms. Those terms are referred to as

Division A(1), which requires prior oral and written

notification to the employer before filing with an agency, and

Division (A)(2) which does not require advance notice to the

employer in case of certain environmental laws. Division

A(2) obviously does not relate to OSHA filings. It was

undisputed that Mr. Kulch did not comply with all the

advance notice requirements of Division A(1). Therefore,

from the trial court through the Ohio Supreme Court, this

statutory claim on Division A(1) was rejected.

The common law theory for the employment tort,

when this case originated, was new to Ohio and has been

developing in the case law during the pendency of this case.

Mr. Kulch's initial complaint simply added the public policy

tort theory as a means to supplement the statutory remedies

with common law tort remedies.

The trial court disposed of this case on the employer's

summary judgment motion because the employee did not

comply with the prerequisites to protection under the

whistleblower statute and further that the state whistleblower

statute precluded a state common law remedy of any type.

Specifically, the trial court found that plaintiff's only report

was to OSHA and assumed for purposes of its decision that

such was the employer's motive in discharge. Appendix M.

Mr. Kulch appealed to the Eleventh Appellate District,

Geauga County, Ohio, raising the issues of whether a public

policy tort under common law could be based on violation of

state whistleblower law. He did not assert OSHA as an

independent basis for the tort. He argued that the OSHA

filing was one of the elements of the state whistleblower claim

and thus indirectly supported the state tort claim which was

based on the state statute. Appendix L. In addition, to

defending the decision of the court below, the employer

argued to the appeals court that the state whistleblower statute

did not pertain to non-criminal OSHA complaints relating to

safety standards but only to criminal offenses and none of the

OSHA criminal offenses were cited. Appendix M. Secondly,

it argued that the Ohio common law cause of action was

created only for violation by an employer of a specific statute

which in itself did not provide a remedy for employees. The

Ohio whistleblower statute did provide such a remedy for

employees so there was no legal basis for a common law tort

claim independent of the statutory remedy.

Mr. Kulch's second assignment of error to the Court

of Appeals was that Division A(2) of the whistleblower statute

dispenses with any notice for complaints of violation of R.C.

Chapters 3704 and 3734, two of the environmental laws listed

in Division A(2). Appendix L. He did not refer to OSHA in

his Division A(2) assignment of error.

Mr. Kulch, at all times, claimed, as the trial court

found, that his sole whistleblower activity was the filing of an

OSHA complaint and that he never made any complaint to

any other public body, state or federal, relating to

environmental protection. Therefore, the employer argued

that the sole public filing was with OSHA, which is not an

agency under Chapters 3704 or 3734. Secondly, with respect

to Division A(2), the employer thoroughly briefed the

distinctions between the state environmental laws and OSHA

Appendix K (Appellee's Brief, pp. 29-35).

The Court of Appeals affirmed the trial court with

respect to Division A(1). The Court of Appeals found that

the Division A(2) theory was not raised below "accordingly

this court will not address Appellate's argument that no notice

to the employer is required for complaints regarding R.C.

Chapters 3704 and 3734." (Appendix J at p. 8) As to the

employment tort, the Court of Appeals followed the

prevailing state law at the time that the existence of a

Statutory remedy precluded a common law tort claim.

The Ohio Supreme Court selected this case for review _

primarily on the issue of whether a state statute having a

remedy created by the legislature would support the tortious

discharge cause of action at common law or whether the

legislation precluded the common law remedy‘. It was clear

that the Division A(1) requirements were not factually

satisfied. Kulch at 148. The Court needed to either dismiss

the appeal or consider whether some alternative would

support the tort claim. Ultimately, it chose to find that

OSHA was an independent source of state public policy that

. could directly support a tortious discharge cause of action.

Kulch Syllabus 1. It thereby allowed OSHA to enlarge,

diminish or affect state tort law in any other manner. For

good measure, the Ohio Supreme Court also looked to the

Ohio statute's Division A(2) and crafted a basis to consider

whether OSHA could indirectly support the employment tort.

In that regard, the Court remanded the interpretation of

Division A(2) for the purpose of determining whether an

OSHA filing could satisfy the Ohio statute in protecting

whistleblowers who report state environmental crimes to an

appropriate agency. If so, an Ohio statutory claim would be

made and thereby an Ohio common law employment tort.

Kulch at 154.

In the proposition of law asserted to the Supreme

Court on the employment tort, Mr. Kulch did not make

reference to Division A(2) but argued that the state

DI sbi er sche SANE

Ne Die URE He bee

* This is apparent from the stay order (Appendix G) referring

to Hayes v. Zoological Society of Cincinnati, 73 Ohio St. 3d

254, 652 N.L. 2d 948 (Ohio 1995) which was dismissed as

improvidently accepted for review on this issue.

whistleblowers statute in toto does not preempt the common

law public policy tort claim. Appendix F. In his brief he

Said the statutes other than the state whistleblower statute,

such as 29 U.S.C. §660(c), Section 11(c) of OSHA, could

serve as the independent public policy basis for the retaliation

tort’. With respect to Division A(2), he urged that summary

judgment could not have been granted on that division.

With respect to a tort claim based on the state statute,

the Court instructed that the employee must fully comply with

its terms. See, e.g., Kulch at 154. (...assuming that

appellant complied [with Division A(2)]) and ("Thus to the

extent that he complied with R.C. 4113.52(A)(2)...") The

Ohio Supreme Court refused to address the merits of Mr.

Kulch's contentions that he complied with Division A(2)

allowing them to be raised on remand and concluded:

"We vacate that portion of the trial 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 employers for

having and filed an authorized report under

R.C. 4113.52(A)(2), and remand this case to

the trial court for further proceedings on the

statutory cause of action."

Id. at 148.

The Ohio Supreme Court's recitation of Mr. Kulch's

contention under Division A(2) was that he claimed that his

report to OSHA involved criminal violations of state

environmental law, R.C. Chapter 3704 and 3734, and that

therefore his report to OSHA was authorized under Division

5 This was the first time this was raised. Appendix E, p. 24.

ab mci whl tes teats

A(2). Further, even if no actual violation of those chapters

occurred, he says he "reasonably believed" that the

employer's conduct involved criminal violations of those state

code chapters. Kulch at 148. Because Division A(2) permits

an employee to report violation of those environmental

chapters "to any appropriate" regulatory agency, and OSHA

is "any" agency, Mr. Kulch says he has made a claim under

the state statute.

If an Ohio statute allowing a report to "any

appropriate public authority" about state environmental laws

could arguably include the OSHA, the Occupational Safety

and Health Act would thereby be engrafted onto the Ohio

whistleblower act, Division A(2). Thus, OSHA has been

employed by the Ohio Supreme Court to enlarge or "affect in

any other manner"® Division A(2) of the whistleblowers

statute itself.

With respect to the common law tort claim based on

Division A(2), the Ohio Supreme Court also held that:

"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 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. An at-will

employee who is discharged or disciplined for filing

a complaint with OSHA...is entitled to maintain a

common law tort action against the employer for

wrongful discharge/discipline in violation of public

policy pursuant to Greeley and its progeny. Thus,

® cf. 29 U.S.C. §653(b)(4)

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." Kulch at 162. Emphasis added.

The Ohio Supreme Court found two bases for the tort,

only one of which was Division A(2) enlarged, arguably, by

OSHA. The other was OSHA itself. It found that OSHA

alone satisfied the clarity element of the state public policy

tort. Jd. at Syllabus 1:

"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., 49 Ohio St.3d 228, 551 N.E.2d 981

(Ohio 1995) and it progeny."

In addition, the Court held that a violation of state

statute, if proven under Division A(2), would also support a

tort claim. If OSHA is to be found in Division A(2) on

remand, and that Division sustains a tort claim, OSHA in a

third way has been used by the Ohio court to "affect [state

law] in any other manner." (cf. 29 U.S.C. §653(b)(4)).

The development of the law on public policy tort

during the pendency of the instant matter will assist in the

context. Greeley v. Miami Valley Maintenance Contractors,

Inc., 49 Ohio St. 2d 228, 551 N.E. 2d 981 (Ohio 1990) was

decided in the year before Mr. Kulch had been terminated.

It held that a violation of a public policy embodied in a statute

that had no other remedy would serve as the basis of a tort

2 en EP Me Pe i A CER ee es Fat

(ool pundits YP

“—

ee ee eT ne en i dents’

claim against the employer. In 1992, the year following Mr.

Kulch's discharge, the Supreme Court clarified Greeley in

Tulloh v. Goodyear Atomic Corp., 62 Ohio St.3d 541, 584

N.E. 2d 729 (Ohio 1994) holding that absent any statutory

authority there is no common law basis for a wrongful

discharge tort claim. It was on the basis of these two

precedents that the trial court made its decision in 1993. In

1994 when the state court of appeals matter was pending, the

Supreme Court overruled Tulloh in Painters v. Graley, 70

Ohio St. 3d 377, 639 N.E. 2d 51 (Ohio 1994). In that case,

the Ohio court adopted the paradigm for a prima facie case of

public policy discharge from Henry F. Parritt, Jr., The Future

of Wrongful Dismissal Claims: Where does the Employer's

Self Interest Lie? 58 University of Cincinnati Law Review

1989, No. 2, page 397. That law review article identified the

elements as the clarity element (clear public policy), the

jeopardy element, the causation element and the defense of

overriding justification. However, the Painter Court's third

syllabus modified Professor Parritt's clarity element by

omitting from his list of sources of public policy any federal

statutes. The Ohio court defined public policy as:

"Clear public policy quotes 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 they also may be

discerned as a matter of law such as the

constitutions of Ohio and the United States,

Administrative Rules and Regulations and the

common law." /d. Syllabus 3.

By contrast, Professor Parritt's recitation included federal

Statutes.

Without modification of the elements of the tort, the

Ohio Supreme Court in the year before Mr. Kulch's appeal in

this case, decided Collins v. Rizkana, 73 Ohio St.3d 65 (Ohio

1995) which reaffirmed the Painter syllabus and identified the

clarity and jeopardy elements as legal not factual issues for

determination by a court.

Thus, the Ohio Supreme Court, according to the law

of the State of Ohio as expressed in its syllabi, held that

federal statutes were not included as a basis of state public

policy. The Petitioner below briefed the omission of federal

statutes by the Painter syllabus was purposeful based on:

"...our system of federalism where the

doctrines of preemption and the supremacy F

clause are at work. The federal courts have

determined that Section 11(c) does not have a

private right of action; it is not for state courts ;

to overrule them."

Appendix E, 29 Merits Brief, Footnote 20. Nonetheless, the

Supreme Court in Kulch concluded:

"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

ann warantsecogition of a.cause faction ful disc] in violati F publi

policy.

The fi ; ( bli

policy can be found in Section 660(c) Title 29

U.S. Code which specifically prohibits

Ml Aa, reid ton aa, bie

grids, iz, ~~

Pe Pn fee eee Saas,

employees 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... (/d. at 151)’. As explained in our

decision infra, this federal statute constitutes a

sufficiently clear expression of public policy to

, Neng eer ;

employment at-will since the federal statute is

consistent with Ohio public policy favoring

workplace safety... Courts in other

jurisdictions® have also determined that the

public policy embodied in the federal

Ean ait ans Hew Dake

py Spe Ca ECR is fi np ;

of action for wrongful discharge in violation of

public policy (/d. at 152). 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." Jd. at 153. All emphasis

added.

So holding that OSHA constitutes a clear independent

statement of Ohio public policy, the Ohio Supreme Court has

employed OSHA to enlarge and in any other manner affect

The court proceeds to create a cause of action despite this

observation.

8 Courts are divided on whether OSHA alone supports such a claim.

See infra pp. 20-22.

Ohio public policy.

A Motion and Reconsideration or Rehearing was filed

with the Ohio Supreme Court on April 26, 1997. The

Petitioner asserted as grounds for reconsideration the OSHA

neutrality statute 29 U.S.C. §653(b), Section 4(b)(4) both as

it affects the foundation of a Greeley cause of action on

OSHA as if it were state public policy, and, secondly the

engrafting of OSHA onto the Division A(2) of the

whistleblowers statute for remand. (cf. Appendix B.) On

June 18, 1997, the Ohio Supreme Court denied Motion for

Reconsideration. This petition is filed 90 days thereafter

pursuant to Rules of the Supreme Court of the United States

Rule 13 on September 16, 1997.

ARGUMENT

Petitioner's Legal Theory

In adopting OSHA, Congress had a unique approach

to the system of federalism. The states had been the

traditional protectors of workplace safety, with some

successes and some failures. Therefore, Congress wished to

both establish uniform safety standards and allow traditional

state authority in the area. The Act does not completely

exclude state regulation and neither does it give the states

complete freedom. To accomplish this Congress created two

complementary policies and a supplement that allowed for

variance from that policy.

In the complementary design for regulation of

workplace safety, Congress first provided that state law

would be preempted where one of the federal uniform

standards was in effect. The OSHA preemption statute states

that the Act will not prevent any state agency or court from

asserting jurisdiction with respect to a matter "to which no

standard is in effect under Section 6." 29 U.S.C. §667(a),

OSHA Section 18(a). This is a low threshold for preemption,

one that frustrates state jurisdiction by the existence of the

standard without even considering whether there is a

substantive conflict between the standard and state law.

As the necessary complement to such vigorous

preemptive effect of the federal standards Congress added a

neutrality provision so that states could continue their

traditional role in regulating safety outside of the field

covered by the federal standards. However, in that capacity,

states could not tap OSHA as a source of their own state

public policy.

The neutrality provision states:

"{NJothing in this Act shall be construed to

supersede or in any manner affect any

workers’ compensation law or to enlarge or

timiniel ffect j ,

common Jaw or statutory rights, duties, or

liabilities of employers and employees under

any law with respect to injuries, diseases or

death of employees arising out of, or in the

course of employment."

29 U.S.C §653(b)(4), OSHA Section 4(b)(4). (emphasis

added).

The existence of a uniform standard forecloses states

from a specific area and, in the open area, states may not use

OSHA as their own public policy. Congress sought to create

a highly specific safety code that was applicable on its own

terms and did not choose to create a source of new private

rights of action by employees outside of the scheme of the

Act. In the neutrality provision, Congress did not merely

focus on the standards but withheld everything in the Act

("nothing in this Act") from the states' tampering. Neither

the express provisions nor the regulations create a civil cause

of action. Melerine v. Avondale, 659 F.2d 706, 701 n. 7 (Sth

Cir. 1981).

This complementary preemption/neutrality policy of

OSHA is unique in Federal statutes. To make it even more

unusual, Congress created a supplementary policy by which

the states could circumvent the preemption/neutrality design

and exercise total control over workplace health and safety as

they had traditionally done in the past. To accomplish this,

Congress added a provision whereby the complementary

design for coordination of state and federal jurisdiction could

be overridden by federally approved state legislation. Such

legislation displaces OSHA and allows for complete State

regulation of workplace safety. 29 U.S.C. §667(b), OSHA

Section 18(b).

Certain conclusions are inherent in this design, One

is that state and federal regulation were to stay in their

respective spheres. Congress assured no interference with the

express federal uniform regulations by states that may wish to

regulate the same subjects. Secondly, the federal workplace

safety law, in general, was further to be free of the

interference of being applied by the states in their own

jurisdiction, thus protecting uniformity of the entire federal

portion of the field.

Also apparent from this design is that the only method

to change this complementary structure is for states to adopt

a state OSHA plan by legislation, not by judicial decisional

law. After the statement of preemption in Section 18(a),

Congress gave the states the option to submit a state plan

under Section 18(b), 29 U.S.C. §667(b) and escape OSHA

entirely. Given the policy of neutrality of OSHA as to state

law, the existence of provisions for approval of a state plan

by the Department of Labor (DOL) under Section 18(b)

suggests that OSHA's neutrality can only be circumvented by

federally approved legislation. A state plan is the exclusive

means for a state to incorporate OSHA into its law without

affronting the neutrality policy’.

Nothing in the entire Act prevents states from

exercising their own jurisdiction, except the existence of a

uniform federal standard. By contrast, the neutrality clause

is applicable to the entire Act irrespective of whether there is

a federal standard. Standards preclude state regulation unless

circumvented by federally approved state legislation. By

comparison, the rest of the Act allows no such deviation.

Section 4(b)(4) withholds the entire Act form the states,

including Section 11(c). Section 18(b) does not deviate from

that neutrality. See 29 C.F.R. 1954(3)(c).

This case focuses the neutrality provision on

employment torts. The neutrality clause withholds the entire

Act from use by states in any way that affects two classes of

state law: 1) worker compensation, and 2) "any law" with

respect to injuries, disease or death of employees "arising out

of or in the course of employment." Section 4(b)(4), 29

U.S.C. §653(b)(4), Note, Getting Away with Murder:

Federal OSHA Preemption of State Criminal Prosecutions for

Industrial Accidents, 101 Harv. L. Rev. 535, 543

: (1987)("Indeed Section 4(b)(4) saves from preemption two

forms of liability that, like criminal law, regulate workplace

conduct and set implicit standards -- state workers’

compensation and tort law.")

Section 4(b)4 prevents OSHA from being used to

circumvent state workers’ compensation laws. Occupational

Safety and Health Act of 1969; Hearings on H.R. 843, H.R.

| 3809, H.R. 4294, and H.R. 13373 before the Select

° See 29 C.F.R. §1902.3(b) and 29 C.F.R. §1902.4(c)(2)(v). To

. receive federal approval, the state plan legislation must include, inter

alia, a provision similar to U.S.C. §660(c), Section 11(c), the OSHA

non-retaliation section. That section the Ohio Supreme Court,

without legislation approved by the Department of Labor, engrafted

on to Ohio law contrary to the neutrality provision.

Subcomm. on Education and Labor, 91st Cong., 1st Sess.,

Part 2 at 1592-93 (letter of L.H. Silberman, Solicitor of

Labor. This is the source of the line of cases beginning with

Practico v. Portland Terminal Co., 783 F.2d 255 (Ast Cir.

1985) which holds this is the sole purpose of Section 4(b)(4).

The second class of state law that is to be left

unaffected by both the standards and by OSHA generally are

employment torts. "There is solid consensus that Section

4(b)(4) operates to save state tort rules from preemption."

Pedraza v. Shell Oil Co., 942 F.2d 48, 54 (1st Cir. 1991).

Under Section 4(b)4, the cases that have addressed torts

outside the state workers' compensation law are typified by

Reis v. National R.R. Passenger Co., 960 F.2d 1156 (3rd

Cir. 1992): "...In short, it defies reason to construe Section

653(b)(4) as only precluding private actions which would

bypass workers' compensation. Had Congress intended such

a result, it would not have drafted Section 653(b)(4) in such

sweeping terms." /d. at 162.

To summarize, because the states were to continue in

their traditional roles in regulating workplace safety,

Congress created complementary policies to preserve federal

Safety legislation form state involvement. First, state

jurisdiction is precluded where there is a specific safety

standard. This prevents the possibility of conflicting

regulations. Second, states were not to use any part of

OSHA, standards or otherwise, to affect state law in any way

including employment discharge torts. This prohibition

prevents the possibility of conflicting interpretations of the

federal law.

Reasons for Granting Review

Ohio abandoned the principle that Section 11(c) does

not create a private right of action as established in Taylor v.

Brighton Corp., 616 F.2d (6th Cir. 1980) and therefore he

violated OSHA’s neutrality.

Since Section 4(b)(4), 29 U.S.C. §653(b)(4) is not a

statement of preemption of common or statutory law but a

statement of the neutrality of the Act with respect to state law,

the litigation under this section has focused on 1) whether the

Act creates new rights under state law in addition to those

already existing in state law or 2) whether the Act impacts

preexisting rights under state law in any way. Both are

prohibited. |

The OSHA neutrality statute is violated by the Ohio

Supreme Court's decision in two ways. It has used OSHA

both directly and indirectly to enlarge or in any other manner

affect state law, both statutory and common law.

First, in earlier case law, the Ohio Supreme Court

held that a public policy discharge tort would lie based on the

violation of a clear state public policy. In this case the Ohio

Court decided that OSHA serves as the Ohio state policy basis

for a an employment tort, independent of any other sources,

-with remedies of lost wages, medical expenses, disability

payments and pain and suffering'’®. This is the creation of a

new siate tort cause of action based entirely on OSHA alone

and using OSHA to impact preexisting rights and both are

contrary to the neutrality required by Section 4(b)(4).

Second, the state legislation that also supports the

employment tort is R.C. 4113.52(A)(2). There the Ohio

General Assembly provided statutory remedies for

whistleblowing in connection with specifically listed state

environmental laws. The Ohio Supreme Court remanded for

a lower court to determine whether OSHA would be included

in the list of state environmental laws so as to allow the

'0 The types of remedies that the federal law is concerned with are

lost wages, medical expense and disability payments. 29 U.S.C.

§651(a), OSHA Section 2(a).

employee to obtain a statutory remedy under the state

whistleblower statute and thereupon support both an Ohio

statutory and common law tort claim. This holding would

allow lower courts of Ohio to hold that OSHA can be

incorporated directly into a state statute and to indirectly

support a state tort, all without following the strictures of

Section 18(b) for federally approved legislation and contrary

to neutrality required by Section 4(b)(4).

A) The Important Federal Question of OSHA's

Neutrality with Respect to State Law Should be

Decided by this Court and Has Not.

The leading cases of this Court that are analogous did

not decide the questions presented under the neutrality

provision. They are Gade v. National Solid Waste

Management Association, 505 U.S. 88, 112 S.Ct. 2374

(1992) and English v. General Electric, 496 U.S. 72, 110

S.Ct. 2270 (1990). Both are preemption cases and did not

consider the neutrality statute.

In Gade v. National Solid Waste Management

Association, 505 U.S. 88, 112 S.Ct. 2374 (1992) state

legislation arguably regulated what a published federal

standard also regulated. This Court had no difficulty in

rejecting Illinois' attempt to encroach upon federal

jurisdiction with an unapproved regulation regarding

hazardous waste site workers, which OSHA also regulated.

However, the state had not submitted a plan for approval and

therefore its legislation was preempted by Section 18(a). This

Court endorsed the standard that any state law which

constitutes a regulation of worker health and safety is

implicitly in conflict with the purposes and objectives of the

Act and so is preempted. Actual conflict in terms between

the state and federal regulation is not the test. Even state law

meant for a wholly different purpose (dual purpose

regulation) and state law merely supplemental to OSHA are

preempted by this test. Indeed, Congress rejected a proposal

that would have preempted only those state regulations that

were "in conflict" with the federal legislation.See Section

14(b)(1) in S. 2788 and H.R. 13373, 91st Cong., 1st Sess.

(1969) reprinted in Subcommittee on Labor, The Senate

Committee on Labor and Public Welfare, 92nd Cong., Ist

Sess., LEGISLATIVE HISTORY OF THE

OCCUPATIONAL SAFETY & HEALTH ACT OF 1970

(Comm. Print. 1971) at 58, 706. Regardless of the

substantive terms and whether they are in harmony or

conflict, the existence of a state regulation on occupational

health and safety, outside of a federally approved state plan

affronts "the full purposes and objectives of the OSHAct."

Id. at 98-99.

The issue raised here is one that is complimentary to

the decision reached in Gade, i.e., a second prong not

considered before. In this case, the syllabi of the Ohio

Supreme Court violate OSHA's neutrality and incorporate

OSHA into state tort law. It does not involve state law that

regulates what an OSHA standard has already regulated.

Rather, the Ohio Supreme Court makes OSHA a source of

state public policy contra Section 4(b)(4). It is not a question

of whether the state court syllabi are in conflict generally, or

even specifically, with OSHA but rather the reverse: whether

OSHA is a permissible source of state law. Congress has

specifically withheld OSHA from that role in the neutrality

provision and no court has decided the effect in retaliation

discharge torts.

The courts that have held that a public policy

discharge tort is not preempted by OSHA also have not

considered the OSHA's neutrality statute, Section 4(b)(4).

The source of such lower court decisions is English v.

General Electric, 496 U.S. 72, 110 S.Ct. 2270 (1990), a case

holding that the common law of intentional infliction of

emotional distress was not preempted by the Energy

Reorganization Act, (ERA). However, the ERA did not have

the benefit of a statute remotely similar to Section 4(b)(4).

The ERA's savings clause, 42 U.S.C. 5851(h), entitled

"Nonpreemption," states that the ERA is not intended to

affect the employee's right to seek redress for retaliation

claims otherwise available to the employee under state or

federal law. By contrast, the OSHA neutrality clause is far

more expansive. It prohibits the use of OSHA "to enlarge,

diminish or affect in any other manner the common law or

statutory rights, duties or liabilities of employers and

employees" unless a state plan is adopted. The ERA simply

did not preempt state employment law. OSHA goes further;

OSHA may not be state law. Courts which applied English

to a public policy tort based upon OSHA did not account for

the neutrality provision, Section 4(b)(4), Fragassi v.

Neiburger, 269 Ill. App. 633, 646 N.E.2d 315 (2nd Dist. Ill.

1995)".

Only one state law retaliatory tort case has been

located that addressed Section 4(b)(4) at all. In Phillips v.

General Electric Co. , 881 F.Supp. 1553 (N.D. Ala. 1995) the

court held that a claim under the Alabama workers'

compensation statute governing reports of safety violation was

not preempted. In addressing Section 4(b)(4), it held that

workers' compensation was a remedy for injury to

employees, was saved from preemption by the neutrality

clause, Section 4(b)(4). In other words, OSHA neither

preempted the workers' compensation reporting statute nor

affected it in any other manner. That court then turned to

apply the state law by its own terms. The court did not need

'!' The Illinois Supreme Court mentioned Section 4(b)(4) only as a

basis for the lower court's decision that it reversed, but never

substantively addressed it.

to reach the additional step that this case submits, i.e., that

Section 4(b)(4) precluded OSHA Section 11(c) from becoming

the state law.

No Court where Section 11(c) issues arose in the

context of public policy discharge torts never considered the

neutrality provision in the scheme of the Act. This is true of

those that held it was preempted as well as those that held it

not to be preempted. Of the latter, nearly all based the tort

on some state policy and not OSHA alone and even

disavowed OSHA as the source. Often the filing was with a

state public authority and not under OSHA. Although one

federal district court did so, before Ohio no state supreme

court created a state common law remedy exclusively and

independently based on OSHA both directly, and indirectly as

did Ohio.

State cases that have allowed similar tort claims based

on OSHA filings have not considered the effect of Section

4(b)(4) in part, because the state tort was not dependent on

OSHA as the Ohio court found, but on separate state

workplace safety policy. "This is a Pierce (retaliatory

discharge tort) claim which is entirely separate from the

assertion of a claim under OSHA." Cerracchio v. Alden

Leeds, Inc. , 538 A.2d 1292 (N.J. Super A.D., 1988) at 1298.

In holding retaliatory tort as not preempted by OSHA,

without considering Section 4(b)(4), Lapore v. National Tool

& Mfg. Co., 540 A.2d 1296 (N.J. Super A.D., 1988) found

that OSHA did not prohibit states from providing a remedy

where the tort did not seek to remedy a violation of the Act

but rather violation of state public policy. ("...plaintiff seeks

to remedy a retaliatory discharge in violating state laws and

public policy. It is entirely distinct from §660(c)(1) private

cause of action." Jd. at 1307.) Likewise, "[Plaintiff] is not

seeking a remedy under OSHA, however, he requests relief

only under Illinois law." McElroy v. S.O.S. International,

Inc., 730 F.Supp 803 (N.D. Ill. 1989) at 807.

In Cloutier v. Great Atlantic & Pacific Tea Co.,Inc.,

121 N.H. 915, 436 A2d 1140 (N.H. 1981), one case cited by

the Ohio Supreme Court, the public policy basis of the

retaliatory discharge tort urged was the OSHA general duty

clause, 29 U.S.C. §654 in connection with a burglary. The

court, after reciting the parties' argument on the general duty

clause, concluded ":[h]owever, without the existence of

OSHA, the facts before us support the conclusion that the

plaintiff was discharged for the laudable public policy [of

protecting persons who worked for him]." The court also

sustained the claim on a state statute regarding a day of rest.

As with all the cases in this area, the OSHA neutrality

provision is ignored. OSHA was not found to be a sole

independent basis of the tort.

In Paige v. Henry J. Kaiser Co., 826 F.2d 857 (9th

Cir. 1987) the court found no preemption where the tort claim

rested on California law. Neither did OSHA preempt a tort

claim premised on reports made to a state agency in

Kilpatrick v. Delaware County Soc. for Prevention of Cruelty

to Animals, 632 F.Supp. 542 (E.D. Pa. 1986). The employee

was discharged for reporting to the State Department of

Agriculture. The court held her retaliatory tort claim was not

preempted by OSHA and added, in the absence of a

Pennsylvania Whistleblower Statute, that OSHA

supplemented state public policy approving the making of

complaints to government agencies, even if not to OSHA. It

did not make OSHA complaints actionable in tort nor did it

consider Section 4(b)(4).

The Ohio Supreme Court cited Sorge v. Right's

Knitwear Corp. (E.D. Penn. 1993) 832 F.Supp. 118 which

followed Kilpatrick. Sorge is the only court before Ohio to

find Section 11(c) to be state public policy that independently

supports retaliatory tort claims. The District Court reached

this conclusion in the absence of a decision by Pennsylvania

Supreme Court and also did not consider Section 4(b)(4).

By contrast three cases, Braun v. Kelsey, 635 F.Supp.

75 (E.D. Pa. 1986), Walsh v. Consolidated Freightways,

Inc., 278 Or 547, 563 P.2d 1205 (Oregon 1977) and Corbin

v. Sinclair Marketing, Inc., 684 P.2d 265 (Colo. App. 1984)

applied preemption to state retaliatory discharge. Neither did

these courts expressly address Section 4(b)(4), but their

conclusions impliedly support the Petitioner's reading of

Section 4(b)(4) neutrality and are consistent with cases that

base the tort on state law, not OSHA alone.

Without this Court's review, courts will continue to

not only fail to account for the neutrality clause of the Act but

will continue to confuse the reciprocal nature of policies of

preemption and neutrality embodied in the Act.

B) The Ohio Supreme Court Decision Conflicts

with Other Courts' Interpretation of the OSHA

Neutrality Statute.

The reciprocal nature of Section 4(b)(4) as a saving

Clause establishes the neutrality of OSHA vis a vis the states.

Section 4(b)(4) has been used as savings clause to a shield

claims from preemption because they involve state law, e.g.,

workers' compensation law, per Phillips, supra. However,

it has also been used as a sword to strike down tort claims

where states sought to base their causes of action, in whole or

in part, substantially on OSHA as their basis, i.e., to save

OSHA from the states. This latter case is typified most by

the negligence per cases’ that often cite a specific standard or

'2 Negligence per se and public policy discharge torts are vastly

similar. Compare: W. Prosser THE LAW OF TORTS §3 at 192-97,

200; RESTATEMENT (SECOND) OF TORTS §286 (1965) and

Parritt, supra, p. 9. Both rely upon a public policy violation plus

causation and damage. The retaliation tort includes the employment

the OSHA general or special duty. Section 5(a), 29 U.S.C.

654(a). Many courts have held that OSHA violations cannot

become a substantive element of a state cause of action so as

to be conclusive of the state law issue. In those cases,

Section 4(b)(4) has been used to strike down the claim and not

merely to save it from preemption.

What this case presents is the same scenario with

respect to employment tort law. The Ohio Supreme Court

has based an entire tort cause of action on OSHA Section

11(c). Indeed in defining the tort elements, the Ohio court

stated that proof of violation of the underlying statute is

necessary when applying the Ohio whistleblower Act.

Contreras v. Ferro Corp. et al., 73 Ohio St. 3d. 244 (Ohio

1995). Per force the same must be true of the independent

OSHA Section 11(c) cause of action under state law.

Courts have applied the neutrality provision in

rejecting common law negligence claims and claims based on

premises and products liability which had attempted to use the

OSHA standards to establish the causes of action. Those

courts readily cite the prohibition against creating private

rights of action based on OSHA alone. However, the

retaliatory discharge tort, unlike many of the neutrality clause

cases, actually involves employees and should be decided

likewise.

The Third Circuit interpreted the role of Section

4(b)(4) in relation to state tort law in Reis v. National R.R.

Passenger Corp., 960 F.2d 1156 (3rd Cir. 1992), a

negligence per se case under FELA. "[W]e have found no

case where absolute liability has been imposec for violation

element; negligence per se includes the element of protected class of

the statute in question. The only difference is that not all retaliatory

torts render physical injury. Here, however, Mr. Kulch has raised

his heart condition and emotional distress as a basis for the remedy.

of an OSHA regulation against a claim that the express

language of OSHA prohibits the creation of liability." Jd. at

1161. The Reis Court concludes: "[w]e hold that...a violation

of an OSHA regulation could not constitute negligence per

sé..." Reis, 960 F.2d at 1165. If a violation of an OSHA

regulation could be used as evidence of negligence per se, it

would be almost axiomatic that the effect would be to

"enlarge or diminish or affect" the Statutory duty or liability

of the employer. /d. at 1162. Even if the state tort based on

an OSHA violation would not "enlarge" employers’ liability,

because it merely defined an existing duty, "we are hard

pressed to say that it would not ‘affect' liability." Jd.

In realizing this result, the Third Circuit relied heavily

on Minichello v. U.S. Industries, Inc., 756 F.2d 26 (6th Cir.

1985). The Sixth Circuit stated that under Ohio law "OSHA

regulations can never provide a basis for liability because

Congress has specified that they should not." Jd. at 29 (citing

29 U.S.C. §653(b)(4)). The court found that OSHA could

not be used to establish one element of a products liability

tort, (i.e., whether the product was unreasonably dangerous,

otherwise OSHA would "alter the court standard of liability."

Id. at 29.)

Nonetheless, there is a conflict among courts on the

role and scope of OSHA in establishing state torts, and also

whether OSHA is admissible as evidence of state torts.

In the disparity of applying Section 4(b)(4), most

federal cases and a few state courts, including Ohio, preclude

OSHA from any role in establishing a state tort. See Merritt

v. Bethlehem Steel Corp., 875 F.2d 603 (7th Cir. 1989)

(OSHA could not be used to expand or otherwise affect the

common law duties or liabilities under a negligence per se

theory as to an independent contractor because workers’

compensation is exclusive remedy). In Melerine v. Avondale,

654 F.2d 706 (Sth Cir. 1981) at 701, n. 7, the plaintiff argued

the OSHA violation established negligence per se. The court

concluded he was not in the protected class of the regulation

and could not establish the threshold standing at 710-712.

Albrecht v. Baltimore & Ohio R.R., 808 F.2d 329 (4th Cir.

1987) and Byrd v. Fieldcrest Mills, 496 F.2d 1323 (4th Cir.

1974) (an OSHA violation did not constitute negligence);

Practico v. Portland Terminal Co., 783 F.2d 255 (lst Cir.

1985) at 256 (the words "enlarge, diminish, or affect" did not ,

allow courts to create a private cause of action for injured

workers which would allow them to bypass workers’ |

compensation)’®. Bertholf v. Burlington Northern R.R., 402

F.Supp. 171, 173 (E.D. Wash. 1975) (finding that an OSHA

violation does not constitute negligence per se under FELA);

Hebel v. Conrail, 475 N.E.2d 652 (Ind. 1985); ("We have

found no case where absolute liability has been imposed for

violation of an OSHA regulation against a claim that the

express language of OSHA prohibits the creation of

liability."); Wendland v. Ridgefield Constr. Serv., Inc. , 184

Conn. 173, 439 A.2d 954, 956-7 (Conn. 1981); ("we do not

find these decisions persuasive because these opinions have

not confronted a statute analogous to 29 U.S.C. 653(b)(4)..."

holding that a negligence per se jury instruction based on a

violation of OSHA was erroneous because such an instruction

"affects [the] common law rights, duties and liabilities of

employers and employees"). Other State decisions have also

refrained from violating the neutrality provision by refusing

to make OSHA an element of the state tort. Valdez v.

Cillessen & Son, Inc., 105 N.M. 575, 578, 734 P.2d 1258,

1261 (New Mexico 1987). Canape v. Petersen d/b/a/

Western Hills Court, 897 P.2d 762 (Colo. 1995).

The Ohio Supreme Court itself, applied the neutrality

'S Although Practico applies Section 4(b)(4) to save workers'

compensation injury claims from preemption, it is alone in

holding that is its sole purpose. Cf. Reis supra at 162. -

provision in Hernandez v. Martin Chevrolet, 72 Ohio St. 3d

302 (Ohio 1995) when it rejected a suit by a non-employee to

expand premises liability by negligence per se based upon

OSHA Section 4(b)(4). In Kulch, however, it refused to

consider that issue (e.g., Appendix A and B).

The other strand of the conflict is represented

primarily by state courts that have allowed OSHA to serve as

the basis of a state tort. Sanchez v. Galey, 112 Idaho 609,

733 P.2d 1234 (Idaho 1986) (allowing negligence per se

based on an OSHA violation); Kelley v. Howard S. Wright

Const. Co., 90 Wash. 2d 323, 582 P.2d 500 (Wash. 1978)

(holding that the general contractor, had a duty to comply

with the OSHA regulations as to an employee of a

subcontractor); Koll v. Manatt's Transp. Co., 253 N.W.2d

265, 270 (Iowa 1977) (ruling that a violation of an OSHA

regulation by an employer is negligence per se without

discussing the effect of the state statute equivalent to 29

U.S.C. §653(b)(4).)

The Sixth Circuit is so self-contradictory on Section

4(b)(4) that it illustrates the confounding confusion over this

Statute's application to state tort law. Ellis v. Chase

Communications, 63 F.3d 473 (6th Cir. 1995) sought,

unsuccessfully, to harmonize Minichello, supra, with Teal v.

E.I. Dupont de Nemours & Co., 728 F.2d 799 (6th Cir.

1984). The Teal court found under Tennessee law that

OSHA's specific duty clause, 29 U.S.C. §654(a)(2) would

constitute negligence per se. It did not consider Section

4(b)(4) since the parties agreed that the standard of care was

based on OSHA regulations. Jd. at 803-5. Later in Ellis, the

court insisted that Teal did not abandon Minichello, i.e.,

OSHA did not create a private right of action. "OSHA can

never provide a basis for liability." Ellis at 471. However,

in Ellis, the court held that violation of the OSHA specific

duty clause would be conclusive of negligence per se except

that the defendant there was not responsible for OSHA

“

compliance. But see, Russell v. Bartley, 494 F.2d 334 (6th

Cir. 1974) which observed that "the better reasoned view [is],

however, much of that litigation addresses whether enactment

of OSHA is ground for expansion of state common law

negligence per se that OSHA violations do not constitute a

basis for assigning negligence as a matter of law."

Between the opposition of Minichello/Russell and

Ellis/Teal is dicta in Bailey v. V & O Press Co., 770 F.2d

601 (6th Cir. 1985) which states: "compliance with OSHA

in some cases is probative of a manufacturer's duty of care."

Nevertheless, following the Minichello holding, Bailey held

that refusal to admit OSHA standards into evidence was

proper, but, because they were referred to in testimony, there

should have been a limiting instruction. In an unreported

decision, the Sixth Circuit confesses but refuses to address the

intra circuit conflict regarding Section 4(b)(4) on the role of

OSHA regulations as evidence of the standard of care.

Williams, et al. J.I. Case Company, et al., 963 F.2d 374

(Table), (6th Cir. Case No. 91-5700, May 22, 1992

unpublished) 1992 W.L. 111809. (Appendix O.)

The Third Circuit, author of the Reis line of cases, in

Rolick v. Collins Pine Company, 975 F.2d 1009 (3rd Cir.

1992) cert. denied 507 U.S. 973, 113 S.Ct. 1417, 122 L. Ed.

2d 787 (1993) held both that an OSHA standard was

admissible evidence of the duty of care but that proof of

violation of the standard cannot support a state cause of action

for negligence per se. It winks at the "sweeping language" of

Section 4(b)(4) to suggest that evidentiary use does not

"affect" state law "in any other manner." The Third and

Sixth Circuits appear to be on both sides of the issues. In the

Third Circuit, the Rolick court also observed, but refused to

resolve, the conflict.

Absent this Court's review this conflict will not

resolve but shows every sign of becoming intra jurisdictional

in both state and federal systems.

Summary

The extension of the public policy tort exception of the

at-will employment doctrine based upon a provision in OSHA

is in conflict with 29 U.S.C. §653(b)(4). Similarly, the

remand holding in this case which permits the lower court to

read Ohio Revised Code §4113.52(A)(2) to incorporate

OSHA directly and thus indirectly support a public policy tort

claim are also both contrary to 29 U.S.C. §653(b)(4).

Section 4(b)(4) applies to state torts other than

workers’ compensation law, and withholds OSHA as a source

of law for those employment torts. Just as workers’

compensation is not meant to be bypassed by direct OSHA

Claims, neither are other employment torts to be

circumvented. This case presents an employment tort of

retaliatory discharge that allows the typical range of damages

for relief as any tort cause of action. Like negligence per se,

products and premises claims, the tort of public policy

retaliatory discharge based on Section 11(c), directly or

indirectly, “enlarge(s]...or affect[s] in any other manner...the

common law or statutory rights, duties, or liabilities of

employers...with respect to injuries, diseases, or death of

employees..." 29 U.S.C. 653(b)(4).

The courts that have addressed retaliatory discharge

under OSHA, whether they have held such claims are

preempted or not, have failed to address Section 4(b)(4).

Neither has this Court addressed it. On the other hand, those

courts that have applied Section 4(b)(4) to state torts have

reached diverse results, to the extent that one circuit, the

Sixth, appears totally confounded by it and the Third may be

following. The Ohio Supreme Court has ignored Section

4(b)(4) in this case, although it has applied it as to other torts

not involving employees. This Court has not addressed, and

other courts have impossibly confused the issue over whether

the OSHA Act and standards can serve as an element of state

employment tort claims or may even be admissible to prove

an element of such claims. The statute excludes from the

States' usage all reference to OSHA by sweeping language

like "affect in any other manner". This should be sufficient

to preclude OSHA from being actionable state public policy

or even as evidence under state law theories. Yet the courts

have not reached consensus. Absent this Court's review, the

confusion over the role of OSHA as state public policy will

continue to affect injury and employment law alike.

CONCLUSION

The Court should grant this petition for a writ of

certiorari.

Respectfully submitted,

/s/

Gregory P. Szuter (Ohio #0018630)

(Counsel of Record)

Roetzel & Andress

1650 One Cleveland Center

Cleveland, Ohio 44114

(216) 623-0150

Counsel for Petitioners

Dated: September 16, 1997

APPENDIX

APPENDIX A

No. 95-650

1997 Term

THE SUPREME COURT OF OHIO

FILED

June 18, 1997

Marcia Mengel, Clerk

Supreme Court of Ohio

JAMES KULCH, )

Appellant, )

)

v. ) RECONSIDERATION

: ) ENTRY

STRUCTURAL FIBERS, )

INC., )

Appellee. )

IT IS ORDERED by this Court that the motion for

reconsideration in this case be, and hereby is, denied.

(Court of Appeals No. 93G1824)

/s/

THOMAS J. MOYER

Chief Justice

APPENDIX B

IN THE SUPREME COURT OF OHIO

CASE NO. 95-650

Appeal from the

Eleventh District

Case No. 93 G 1824

JAMES KULCH

Plaintiff-Appellant

vs.

STRUCTURAL FIBERS, INC.., et al

Defendants-Appellees

MOTION FOR RECONSIDERATION

AND RE-HEARING

S. Ct. Prac. R XI § 2

Gregory P. Szuter, #0018630

ROETZEL & ANDRESS

1375 East Ninth Street

1650 One Cleveland Center

Cleveland, Ohio 44115

(216) 623-1050

Attorney for Defendants-Appellees

Patrick J. Perotti, #0005481

Robert J. Hoffman, #0061246

Shawn W. Maestle, #0063779

DWORKEN & BERNSTEIN CoO., L.P.A.

153 East Erie Street, #304

Painesville, Ohio 44077

(216) 946-7656

Attorneys for Plaintiff-Appellant

TABLE OF CONTENTS

pe es gt ae rrr [iii]

sis So ee x AS es [vii]

The Occupational Safety and Health Administration Act

(OSHA) federal statute and by its terms is not a statute of a

state public policy so as to give rise to a public policy tort cause

of action so that the syllabus is in conflict with federal law [1]

GROUND FOR RECONSIDERATION NO. 2

Remand of statutory and common law action based on R.C.

4113.52(a)(2) conflicts with federal law ............. [9]

GROUND FOR RECONSIDERATION NO. 3

Overruling Phung, supra destroys the basis for a Greeley public

policy tort and does not change the historical fact of its role in

the legislative intent behind R.C. 4113.52 and should be

TET TT EEE ELUR TOPE Teer eriee [10]

The remand of a public policy tort action and statutory absence

predicated on R.C. 4113.52(A)(2) fails to apply the rigor of

strict compliance with the underlying statute as enunciated in

PPPOE TUTC LCE CTT TTT [16]

(i)

GROUND FOR RECONSIDERATION NO. 5

In addition to prior grounds for reconsideration, Constitutional

concerns of the separation of powers under the republican form

of government that guarantees due process and equal protection

require reconsideration of the decision on the merits ... [18]

SN pnp als aS eu a a ce ee a ba [20]

CERTIFICAITION OF SERVICE ... wc eet ees [21]

(ii)

TABLE OF AUTHORITY

Cases:

Bear v. Geetronics, Inc.,

(1992) 83 Ohio App. 3d, 163 at 167 ............... [14]

Bust Mid Ohio Regional Planning C tee

(Dec. 7, 1995) Franklin App. No. 9SAPE03-249

unreported, 1995 W.L. 723546 .................. [14]

(April 11, 1995) Franklin App. No. 94APP 08-1255,

WUIOEONG, Tire HRs ZEON 6 cee ees [14]

Contreras v. Ferro Corp., et al.,

(October 28, 1993), Cuyahoga App. Nos. 64394

/64424/64883, unreported ..................... [14]

Contreras v. Ferro Corporation, et al.,

(1995) 73 Ohio St.3d 244 ......2..2............ [14,16]

Fawcett v. G.C, Murphy & Co.,

(1976), 46 Ohio St. 2d 245, 75 0.0. 2d 291, 348

ed ss ee as ie Ke (11)

Fox v. Bowling Green,

(1996), 76 Ohio St. 3d 534, 668 N.E. 2d 898 ......... [17]

Greele Miami Valley Mai

Inc., (1990), 49 Ohio St. 3d 228, 551,

Pe EE Bee oe os eo (1,2,6,7,9,10,11,12,15,16,17]

Hazlett v. Martin Chevrolet, Inc.,

(1986), 25 Ohio St. 3d 729, 25 O.B.R. 331,

ee ee On ao se 8 Ws we ee [11]

[iii]

<—_iaasiaa iis

Herandez v. Martin Chevrolet, Inc.,

(1995), 72 Ohio St. 3d 302, 649 N.E. 2d 1215 ......... [3]

Kulch v. Structural Fibers, Inc.,

(1907), Fe Cee ae. BESS ww ce wees [1,2,9,12,16,19]

Murray v, Clinton Petroleum Company,

(July 16, 1993) Portage App. No. 92-P-0086 unreported .. [14]

Painter v. Graley,

(1994), 70 Ohio St. 3d 377, 639 N.E. 2d 251 ........ [2,9]

Phung v, Waste Mgt. Inc.,

(1986), 23 Ohio St. 3d 100, 23 OBR 260,

291 N.E. 2d 1114, overruled .......... (9,10,11,12,14,15]

Planned Parenthood v. Casey,

(1992), 505 U.S. 883, 112 S. Ct. 2791 at 854 ......... [12]

Rayel v, Wackeyhut Corp.,

(June 8, 1995), Cuyahoga App. No. 67459,

Pee ie SE oot ee eee eae el

ee ee

(S.D. Ohio 1993) at 13 F.Supp. 256 recon.

See: SE UE Go os ooh 6s cae eee dha ee es [14]

(January 14, 1994), S.D. Ohio No. C-1-92-343

(unreported) adopted February 23, 1994............. [14]

COG Cr... Ty GU UR v5 oc ees [6]

(N.D. Ohio 1991), 767 F.Supp. 849 ............... [14] 7

[iv]

a a 1 Rules:

Constitution of the United States, Article VI ........... [7]

Constitution of the United States, ArticleIV .......... [19]

Constitution of the United States, Amendment 14........ [19]

PE I Sie sa beh os On Sk oe ee [7]

fg sn a he oh ee ee [7]

SP Ws EEE is ok ee kac is tee Sea das eeans [8]

Se, NTE 6 coc ee eas awtemerewess [8]

Cg RK errr eres Se eee ee es 8 [3]

gS ot re ea ere rere ec [3]

I SE oon oe ca ene ee eee es [3,5,10]

I EE bake eee beeen he vee eee ee [4,6]

pg 8 ee eer errs eee eee ee [3,4,5,10]

pg RS Ee err ere ee [7]

BP NO ik ono ev cian ee ween ta de ue [8]

pS oR Ee ae [8]

es NS, £6 Ee es CC ee [8]

gk ag ere are ae ee [8]

fl ee ) ee ([2,10,11,12,14,15,18]

RG G6IS SOI ooo kk ca os ow ces sce, [16]

Pe EE EE os 61k Sls sae eeeum eee {10,15,17]

ee IE 5 Ss kno oo re ee [4,10]

ee ee eee er Per ee [5,10]

ee 8 a sb cg ks ee ee [5,10]

eee Sf Or ee ee ee ery [1]

Be 8 Serreeeere errr feo es [1]

[vi]

Al0

APPENDIX

Tab 1 - Ohio Statutes

R.C. 4113.52 (eff. 1990)

R.C. 4113.52 (eff. 1997)

Tab 2 - Constitution of the United States

Constitution of the United States, Article VI

Constitution of the United States, Article [V

Constitution of the United States, Amendment 14

Tab 3 - National Labor Relations Act

29 U.S.C. §157

29 U.S.C. §160(b)

Tab 4 - Occupational Safety and Health Act

29 U.S.C. §651(a)

29 U.S.C. §652(5)

29 U.S.C. §653(b)

29 U.S.C. §660(c)

29 U.S.C. §667(c)

[vii]

All

Tab 5 - Code of Federal Regulations

29 C.F.R. §1902.3

29 C.F.R. §1902.4

29 C.F.R. §1954.3

Tab 6 - Rules of Court

S. Ct. Prac. R XI

S. Ct. Prac. R XIV

Al12

[viii]

(1)

Appellees move for reconsideration and rehearing of Kulch

vy. Structural Fibers, Inc. (1997), 78 Ohio St. 3d 134 pursuant to S.

Ct. Prac. R. XI, Section 2 with respect to the decision on the merits

of this case mindful the grounds are not a re-argument of the case.

Grounds for reconsideration and re-hearing are set forth below.

This Motion is filed 10 days from issuance of the judgment entry,

April 16, 1997 by filing with the clerk on the Monday following,

April 26, 1997 (Saturday), under S.Ct. Prac. R. XIV(3)(A).

PART I

With respect to syllabus no. 1:

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 work place is entitled to maintain a common law tort

action against the employer ffor wrongful

discharge/discipline in violation of public policy pursuant

to Greeley v. Miami Valley Maintenance Contractors, Inc.

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

progeny.

APPELLEE’S GROUND FOR RECONSIDERATION

NO. 1

The Occupational Safety and Health

Administration Act (OSHA) is a federal statute

and by its terms is not a statute of a state public

policy so as to give rise to a public policy tort

: cause of action so that the syllabus is in conflict

with federal law.

CI ee OD a

Al3

(As to syllabus no. 1)

The syllabus affronts Congressional expression and intent

of OSHA and interpretation by the federal judiciary. The majority

Al4

(2)

held that, irrespective of compliance with state law (R.C. 4113.52),

a person filing a complaint with OSHA is entitled to maintain a

common law tort action for violation of public policy against an

employer who wrongfully discharges or disciplines him for making

such a complaint. This holding is propelled because OSHA was

found to satisfy the clarity element of the public policy tort in that

the claim of dismissal motivated by such filing satisfies the jeopardy

element.' As for the clarity element, the Court reasoned, “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 work place safety. ... Ohio 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.” Kulch v. Structural

Fibers at 152.

The majority’s reasoning is opposed to federal law. The

issue in Greeley is not whether the federal law conforms with state

policy, but whether Ohio has a “clear public policy sufficient to

justify an exception to the employment at-will doctrine.” Painter

syllabus 2. OSHA is not a clear public policy of the state of Ohio.

It is a clear public policy of the United States enacted by Congress

whose expression and intent have been totally ignored by this

Court.

The enabling statute for OSHA provides in pertinent part:

Nothing in this Act shall be construed to

supersede or in any way affect any workers’

compensation law or to enlarge or diminish or

affect in any other manner the common law or

statutory rights or duties or liabilities of employers

and employees under any law with respect to

\Painter v. Graley (1994), 70 Ohio St. 3d 377, 639 N.E. 2d 51

at 57 at 384 footnote 8.

Al5

(3)

injuries, diseases, or death of employees arising

out of or in the course of employment.

29 U.S.C. §653(b)(4), emphasis added. The work place harms

OSHA was intended to address without affecting state law are wage

loss, medical expenses and disability payments. 29 U.S.C.

§65 l(a).

The public policy tort exception to employment at-will is a

common law cause of action for tort damages related to

employment. As such, it is precisely a source of law that the

Congressional intent dictated should not be enlarged or diminished

or affected in any manner by OSHA. Predicating a public policy

tort based on OSHA flies in the face of this Congressional policy.

This Court, on an issue of law that did not involve the employment

relationship, has held that the above statute forecloses OSHA as a

source of Ohio common law. Herandez v, Martin Chevrolet, Inc.

(1995), 72 Ohio St. 3d 302, 649 N.E. 2d 1215. In the instant case,

where employment law is squarely at issue and which involves

application of tort remedies, the same result is necessary under that

precedent. Further the statutory scheme of OSHA, as designed by

Congress, shows it was never intended to be a source of State

public policy unless the State conforms with its terms.

In its threshold coverage, OSHA relates to employers

which are persons engaged in businesses affecting interstate

commerce, but not the United States or the political subdivision of

the State. 29 U.S.C. §652(5). Thus, intrastate businesses are not

affected by the OSHA nor are public employers located anywhere

in the State Ohio. Effectively, many of the largest employers

within the state the Ohio, the various political subdivisions, are

public bodies to whom OSHA is not relevant. It is far from a state-

wide policy.

While §653(b)(4) withholds OSHA from state law and

§652(5) excludes usage parts of state employment in the state law,

Congress did expressly allow states the opportunity for the

development and enforcement of occupational safety standards that

would make OSHA part of state law. 29 U.S.C. §667. State plans

to incorporate OSHA into state law are subject to conditions for

Al6

[4]

approval by the Secretary of Labor. See §667(c)(2). To date, the

General Assembly of Ohio has not introduced, or adopted enabling

legislation to submit a state jurisdiction plan to the Department of

Labor for approval. Ohio has seen fit not to incorporate OSHA

into state public policy by the only means permitted by Congress

via state legislation and DOL approval. It is therefore not apropos

the judiciary to do so.

The criteria for state plans set out by the Department of

Labor at 29 C.F.R. §1902 lists under specific criteria, §1902.3(b)

enforcement:

(1) The State plan shall provide a program for the

enforcement of the State standards which is, or

will be, at least as effective as that provided by

the Act, and provide assurances that the State’s

enforcement program will continue to be at least as

effective as the Federal program. Indices of

effectiveness of the State’s enforcement plan

against which the Assistant Secretary will measure

the State plan in determining whether it is

approvable are set forth in §1902.4(c). (emphasis

added.)

To be at least as effective as OSHA, the State plan enforcement

scheme should address discrimination as does §11(c), 29 U.S.C.

660(c).

The regulations at 29 C.F.R. §1902.4(c) indicate the

standards by which the Secretary will review the enforcement

procedures of the State plan to determine effectiveness including

whether the State plan:

Provides necessary and appropriate protection to

an employee against discharge or discrimination in

terms and conditions of employment because he

has filed a complaint, testified or otherwise acted

to exercise rights under the Act for himself or

others, by such means as providing for appropriate

Al7

(5)

sanctions against the employer for such actions and

by providing for the withholding, upon request, of

the names of complainants from the employer.

29 C.F.R. §1902.4(c)(2)(v). Thus, OSHA is not to affect

State law unless specifically by a legislative plan submitted to the

Secretary of Labor which plan must include discrimination

provisions to meet the effectiveness standard of the Secretary. This

is the only means by which an OSHA discrimination provision can

be incorporated into State law, and not by the State judicial decree.

Plans that are DOL approved still cannot avoid federal

jurisdiction for OSHA discrimination. At 29 C.F.R. §1954(3) the

DOL states procedures for evaluation and monitoring of approved

State plans and provides guidelines for the exercise of federal

discretionary authority including §1954.3(e):

(e) Discrimination Complaints. State plan

provisions on employee discrimination do not

divest the Secretary of Labor of any authority

under §11(c) of the Act. The federal authority to

investigate discrimination complaints exists even

after an affirmative 18(e) determination (See,

South Carolina decision 37 F.R. 25932, December

6,. 1972). The employee complaints alleging

discrimination under §11(c) of the Act will be

subject to federal jurisdiction.

Therefore, Congress has designed OSHA such that it would

noi have any effect on work place common law or statutory law.

§653(b)(4). When the State desires to incorporate OSHA into its

public policy, it must do so by the submission of a legislated plan

to the DOL under §667(c). The condition for approval of such plan

includes provisions for enforcement standards including provisions

for discrimination. Thus, a State plan must have some statutory

provision for discrimination under that is at least as effective as

§11(c). However, the Secretary makes clear that even if he

approves of the State plan that includes discrimination provisions

Al8

[6]

under state law, those provisions do not oust the federal jurisdiction

over §11(c). OSHA §11(c) continues independent of state law even

if there has been federal approval of state legislation. OSHA

§11(c) cannot become state policy in the presence or absence of a

State plan.

In opposition to this detailed statutory design, whereby

Congress has prevented state reliance on OSHA except in the

method prescribed, and preserving §11(c) jurisdiction independent

of even DOL approved state law, this Court has incorporated

OSHA and §11(c) into the common law of public policy tort.

Should it let this syllabus stand, it could not have acted more in

opposition and affront to federal law. Because the General

Assembly has opted not to make OSHA a statewide public policy,

Congress has prevented the Court from enlarging, diminishing or

affecting state employment torts via a Greeley cause of action.

Secondly, the federal judiciary, applying and interpreting

OSHA, has held that no private right of action can be predicated on

§11(c). OSHA provides for an administrative remedy for an

employee who alleges discharge/discipline motivated by filing an

OSHA complaint. The administrative remedy for the employee to

file a charge to allow the Department of Labor to investigate and

makes a determination on whether to pursue judicial action.

Federal Courts have held that there is no private right of action that

employees have with respect to 29 U.S.C. §660(c). Taylor v.

Brighton Corporation (6th Cir., 1980, Ohio), 616 F.2d 256. Since

OSHA does not enlarge, diminish or affect state employment law,

the Congressionally designed administrative remedy for retaliation

cannot become state public policy. It is clearly not for the state

courts to supply a private right of action precluded by the statute

and by the federal cases otherwise OSHA litigants have greater

rights in state court than federal court where there is neither a

private right of action nor tort relief.

The incorporation of OSHA, a federal statute, into the

public policy of Ohio for the purposes of establishing the clarity

element of a public policy tort is extremely improvident for the

entire development of the law in this area. In effect, if OSHA can

be the basis of a statewide public policy then every federal statute

Al9

[7]

can be a basis of federal policy. Federal not state law is supreme

where there is a conflict according to the supremacy clause.

Constitution of United States, Article VI, Clause 2. This case

threatens to stand the federal system on its head. The federal

Statutes, with respect to employment, to varying degrees, have

preemptive policies or other limitations of actions in terms of

remedies or administrative proceedings. Granting a state tort claim

on the basis of federal law sets the stage for affront to

Congressional legislation and indeed to the Constitution itself. Not

all statutes may present the extreme conflict that OSHA does in this

case, but the majority’s analysis in this decision is so deficient by

failing to examine the conflict that it can become state law grounds

for this or other courts to extend Greeley blithely to other federal

legislation.

By way of example, and not exhaustive, the Court should

consider the effect of its holding on such other statutes as the

National Labor Relations Act (NLRA). 42 U.S.C. §151 et. Seq.

Like OSHA, that Act also has exclusively administrative remedies

in which an independent federal agency takes charges, holds

hearings and pursues judicial recourse on behalf of individuals. 29

U.S.C. §160(c). Those individuals are not necessarily members of

unions. They may be persons who file petitions for representation,

elections or they may be persons who file charges based upon

Section 7 rights (29 U.S.C. §157) as non-union members (e.z.,

protected concerted activities.) They can be non-union members

who file charges against unions. They can be persons whoa re

union members who file charges at a time when they are not subject

to a union contract that provides recourse for discharge (i.e., at-will

union employees). If under the analysis of this case a public policy

tort will lie for OSHA which has an administrative remedy, what

distinction is there for persons who file charges under the National

Labor Relations Act?

To similar effect, this precedent can be used to undermine

the remedial scheme of the Employment Income Retirement

Security Act. 29 U.S.C. §1001 et seq. That act as interpreted by

the federal courts provides only for contract damages. The

extension of this decision would allow for enhancement of those

A20

(8}

damages under state law that would not be permitted under federal

law. The same is true for COBRA, Title X of the Consolidated

Omnibus Budget Reconciliation Act, 29 U.S.C. §1611 et seq., the

Family Medical Leave Act, 29 U.S.C. §2601 et seq. and the Fair

Labor Standards Act, 29 U.S.C. §201 et seq. With equal force,

statutes that already provide remedies, albeit limited, such as the

ADA, 42 U.S.C. §12101 et seq., ADEA, 29 U.S.C. §621 et seq.

and Title VII, 42 U.S.C. §2000(e) et seq. now have a state law

basis for unlimited tort damages. Certainly if statutes of state

origin with remedies such as R.C. 4113.52 can be the basis for

such a tort, federal statutes with remedies can also provide basis for

state law policy by example of this syllabus.’

Thus, creating a public policy tort using federal laws as a

state policy without considering the inherent federal conflicts is

wrong and so affronts the system of federalism whereby the law of

the land is supreme as be made by Congress, interpreted by the

federal judiciary. This case circumvents the design and intent of

Congress for OSHA by state court fiat. There is no reason to

believe that Congressionally designed remedial schemes of such

statutes by the precedent of this case would not be overruled by

State judiciaries, thereby frustrating the entire design of the federal

employment law and the Constitution.

PART II

With respect to syllabus 2 and 3:

2). R.C. 4123.52 does not preempt a common law

cause of action against an employer who

discharges or disciplines an employee in violation

of that statute.

These statutes are not filed in the appendix hereto as not

requiring interpretation for this reconsideration. They are cited to give

context to the syllabus.

A21

[9]

3). An 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 has 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 251, paragraphs 2 and 3 of the

syllabus approved; Phung v. Waste Mgt.. Inc.

(1986), 23 Ohio St. 3d 100, 23 OBR 260, 291

N.E. 2d 1114, overruled).

APPELLEE’S GROUND FOR RECONSIDERATION

NO. 2

Remand of statutory and common law action based on R.C.

4113.52(A)(2) conflicts with federal law.

(As to syllabi 2 and 3).

The ground for reconsideration for the Greeley cause of

action predicated on OSHA applies with equal force to both the

statutory claim under R.C. 4113.52(A)(2) and the Greeley cause of

action predicated upon it. That statute clearly requires filing with

the prosecuting authorities of certain state environmental crimes.

However, this Court in permitting remand stated: “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

with R.C. 4113.52, Appellant has established a firm foundation for

a Greeley claim for wrongful discharge in violation of public policy

embodied in the Whistleblower Statute.” Kulch at 154. Arguments

concerning the viability of the underlying statutory claim of R.C.

4113.52(A)(2) were directed to be heard on remand. [d. At 158.

Nonetheless, this Court’s remarks that filing with OSHA can be

A22

ee > ,

[10]

considered under that statute despite the explicit listing by the

legislation, should be reconsidered on the same basis as the

foregoing section.

To read the list of Ohio environmental statutes in R.C.

4113.52(A)(2) and to remand the question of whether or not filing

with OSHA is a reasonable step to invoke those statutes is blatantly

contrary to the purposes of OSHA as set forth above. “Nothing in

this Act [OSHA] shall...enlarge, diminish, or affect in any other

manner...statutory rights or duties or liabilities of employers with

respect to injuries...arising out of or in the course of employment.”

29 U.S.C. §653(b)(4). Winking at the list of state laws in R.C.

4113.52(A){(2) and saying that OSHA may be reasonably connected

therewith is no doubt an enlargement of state statutory employment

law for redress of injuries contemplated in 29 U.S.C. §651(a). As

set forth above, Congress has identified how OSHA, including its

non-discrimination clause, may be incorporated into state law, and

Ohio has not done so. 29 U.S.C. §667(c)(2), 29 C.F.R.

§1902.3(b) and §1902.4(c)(2)(v) and §1954.3(e). Again, the

majority has set up a conflict with federal law by interpreting state

Statute (to include it although never mentioned therein) and

incorporating it into the state common law. The consequences of

allowing remand for proof of whether OSHA is reasonably a filing

under the state environmental statutes ought to be examined. Are

property owners and employers responsible for notice of the

environmental law by OSHA filings? Is that Constitutional notice?

Is it Constitutional notice for a violation of R.C. 4113.52?

APPELLEE’S GROUND FOR RECONSIDERATION

NO. 3

Overruling Phung, supra destroys the basis for

a Greeley public policy tort and does not change

the historical fact of its role in the legislative

intent behind R.C. 4113.52 and should be

rescinded.

(As to syllabi 2 and 3.)

A23

(11)

The majority’s opinion has failed to appreciate that Phung

is the wellspring both of the legislative enactment of R.C. 4113.52

and the recognition of the public policy tort exception in Greeley,

supra.

After the discussion of the statutes involved in the Greeley

facts, the Court addressed that Appellant’s request for a common

law cause of action by virtue of the violation of the public policy.

The Appellee in Greeley defended with Phung, but this Court

disagreed:

In Phung, we held that public policy does not

require that there be an exception to the

employment at-will doctrine, absent a sufficiently

Clear public policy warranting the creation of a

cause of action. (id. At 102, 23 O.B.R. at 262,

491 N.E. 2d at 1116-1117). (Emphasis added.)

After that single citation, the Court concluded that it is time for

Ohio to join the states recognizing the public policy exception and

entered its holding at the same page 234:

Therefore we hold that 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.

The Court then went to apologetics demonstrating that the holding,

which sprung out of citation to Phung, is not a new creature in the

common law by reference to Hazlett v. Martin Chevrolet. Inc.

(1986), 25 Ohio St. 3d 729, 25 O.B.R. 331, 496 N.E. 2d 478 and

Fawcett v. G.C, Murphy & Co, (1976), 46 Ohio St. 2d 245, 75

0.0. 2d 291, 348 N.E. 2d 144. The Court returned to citing

Phung for the proposition that employment at-will in Ohio is alive

and well and “without more clearly at-will. Such a relationship

permits termination of employment for no cause for any cause

which is not unlawful at any time and regardless of motive.” Id.

See also Phung, supra.” (emphasis in original.)

A24

[12]

Thus, it is on the basis of Phung observing that the at-will

doctrine has limitations in the law and public policy that the Court

reached the decision in Greeley. Phung at the portion cited,

observed that either party to an oral at-will agreement may

terminate employment relationship for any reason which is not

contrary to law. It then proceeded to observe that Ohio had not

recognized public policy exceptions, but also said that the case sub

judice would not create such a cause of action because there was no

public policy in the common law supporting the concept of

whistleblowing. Phung was prepared to take the step Greeley did,

but was frustrated by the absence of a public policy ground.

Phung’s reasoning that at-will employment is limited by

violation of law is the source of Greeley. Phung’s finding that no

common law whistleblower protection exists is the source of the

statute. These twin branches of Greeley and R.C. 4113.52 grow

out of the Phung tree. The statutory branch bore the fruit of a

remedy for employees. However, the Greeley branch bore no such

fruit based on the case law interpreting Phung in light of R.C.

4113.52. Now Kulch majority has commanded that the Greeley

branch bear the fruit of a public policy tort remedy based on R.C.

4113.52 and then cut down the Phung tree by overruling it. Where

does that leave Ohio’s law? By overruling Phung, the common law

basis for the Greeley cause of action has disappeared in the

recognition of a Greeley whistleblower cause of action.

Notwithstanding the syllabus, history cannot be revised by the

overruling of Phung. The whistleblower statute was enacted in

response to the Phung decision which cannot be changed by judicial

fiat otherwise the General Assembly has been duped into providing

a statutory remedy when a remedy was not needed.

The wholesale and the illogical disregard of precedent does

no honor to the Court. A court’s obligation, with respect to stare

decisis, was outlined in Planned Parenthood v. Casey (1992), 505

U.S. 883, 112 S. Ct. 2791 at 854:

The obligation to follow precedent begins with

necessity, and contrary necessity marks its outer

limit. With Cardozo we recognize that no judicial

A25

[13]

system could do society’s work if it eyed each

issue afresh in every case that raised it. Indeed,

the very concept of the rule of law underlying our

own Constitution requires such continuity over

time that a respect for precedent is, by definition

indispensable. At the other extreme, a different

necessity would make itself felt if a prior judicial

ruling should come to be seen so clearly as error

that its enforcement was for that very reason

doomed. (Citations omitted.)

The Court observed that stare decisis is not an “inexorable

command” and proceeds to outline how a court should re-examine

a prior holding:

Rather than when this Court re-examined a prior

holding, its judgment is customarily informed by a

series of prudential and pragmatic considerations

designed to test the consistency of overruling a

prior decision with the ideal of the rule of law, and

to gauge the respective costs of affirming and

overturning a prior case. Thus, for example, we

may ask whether the rule has proven to be

intolerable simply be defying practical workability,

whether the rule is subject to a kind of reliance that

would lend a special hardship to the consequences

of overruling and add inequity to the cost of

repudiation; whether related principles of law have

so far developed as to have left the old rule no

more than a remnant of an abandoned doctrine; or

whether the facts have so changed or come to be

seen so differently, as to have robbed the old rule

of its application or justification.

So it is in this case that we may enquire whether

Roe’s central rule has been found unworkable;

whether the rule’s limitation on state power could

A26

[14]

be removed without serious inequity to those who

have relied upon it or significant damage to the

stability of the society governed by it; whether the

law’s growth in the intervening years has left

Roe’s central rule a doctrinal anachronism

discounted by society; and whether Roe’s premises

of fact have so far changed in the ensuing two

decades as to render its central holding somehow

irrelevant or unjustifiable in dealing with the issue

addressed. (Citations omitted.)

It is clear that Phung is not unworkable and overruling it is

not a necessity. The Legislature adequately responded to the

absence of common law whistleblower protection by giving a

remedy. Furthermore, the reliance on Phung, not only by the

General Assembly but the judiciary and others indicates serious

inequity in overruling it. The majority alludes to only a few cases

in its decision that rely on Phung Kulch at page 159. In fact, the

Court of Appeals of virtually every district in the state were

disavowed by the majority.’ Phung is not a doctrinal anachronism

but part of the fabric of the history and law of whistleblowing

protection. The intervening events of R.C. 4113.52 and the

Bear v. Geetronics, inc, (1992), 83 Ohio App., 163 at 167;

Bushman v. Mid Ohio Regional Planning Commission, (Dec. 7, 1995)

Franklin App. No. 9SAPE03-249 unreported, 1995 W.L. 723546;

Cisneros vy. Birck, (April 11, 1995) Franklin App. No. 94APP 08-1255,

unreported, 1995 W.L. 222156; Contreras v. Ferro Corp.. et al., (October

28, 1993), Cuyahoga App. No. 64394/64424/64883, unreported;

Contreras v. Ferro Corporation. et al., (1995) 73 Ohio St. 3d 244; Murray

y. Clinton Petroleum Company, (July 16, 1993) Portage App. No. 92-P-

0086 unreported; Rayel v. Wackenhut Corp., (June 8, 1995), Cuyahoga

App. No. 67459, 1995 W.L. 350077; Rheinecker v. Forest Laboratories,

Inc., (S.D. Ohio 1993) at 13 F.Supp. 256 recon. Den. 826 F.Supp. 256;

Russell v. General Electric Co., (January 14, 1994), S.D. Ohio No. C-1-

92-343 (unreported) adopted February 23, 1994; Ungrady v. Burns Intern.

Sec. Services, Inc., (N.D. Ohio 1991), 767 F.Supp. 849.

A27

[15]

Greeley decision have made it not less but more relevant.*

Posit the consequences of confusion sown by this decision.

If Phung is a dead letter, is there now a common law protection

whistleblowing? (That would be a surprise to Dr. Phung.) If so,

with what parameters? Is it the same as the statute? If so, why?:

That would be a surprise to the General Assembly and to all the

litigants and judges involved in all the cases disavowed in the wake

of overruling Phung. What if R.C. 4113.52 were repealed? What

if it were amended? Would the legislature be amending the

common law? Is there jurisprudential foundation for Greeley any

longer or is it to be justified by its progeny rather than antecedents.

That is the antithesis of stare decisis and nonexistent in the common

law.

Obviously, Phung should not be overruled. The concern

that propelled that unfortunate choice, that the legislative remedy

was created out of an absence of common law and is exclusive,

must be reinstated with the consequence that R.C. 4113.52 is as a

matter of historical fact and law, is the exclusive remedy of the

wrong.

“Hubris in face of stare decisis is transparent in the dictum that

at-will employment was judicially created and can be judicially abolished.

Kulch at 161. At-will employment is so thoroughly a part of American

every state and the United States has enacted statutes predicated on the

existence of the common law at-will doctrine. The basis of each statute

is the concept that, absent its prohibitions, the at-will rule prevails and that

only by its Legislative enactment can protection sought to be obtained.

The majority takes it upon itself to assume that a judiciary would overturn

the huge jurisprudence based on that doctrine as well as the societal

reliance upon it that is alive and continuing without considering the

consequence.

A28

[16]

The remand of a public policy tort action and

statutory absence predicated on _ R.C.

4113.52(A)(2) fails to apply the rigor of strict

compliance with the underlying statute as

enunciated in the syllabus.

(As to syllabi 2 and 3.)

The majority repeatedly held that to maintain a public

policy tort cause of action under Greeley predicated on a statute,

there must be strict compliance with the underlying statute.

(Syllabus 3 ... “so long as the employee has fully complied with

this statute”; “The fact that Appellant reported to OSHA without

having notified his employer both oral 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)”; Kulch at 142, reaffirming

Contreras:* “...an employee who fails to strictly comply with the

requirements of R.C. 4113.52 cannot base a Greeley claim solely

upon public policy embodied in that statute.” Kulch at 153.)

Although strict compliance is required, the Court illogically

allows remand of a cause of action under Greeley and the statute

based upon R.C. 4113.52(A)(2). That statute inter alia requires

notifying the prosecuting authorities of certain state law

environmental crimes. The only filing that the plaintiff made was

with OSHA, as has been repeatedly conceded to this Court and to

others, and not to the prosecuting authorities of the listed statutes.

The Court said he should have strictly complied, yet this Court is

allowing a remand. The Court should have found that as matter of

law OSHA is not a state law and OSHA is not one of the listed

environmental statutes issued and that strict compliance means strict

compliance.

Contreras v. Ferro Corporation (1995), 73 Ohio St. 3d 344, 652

N.E. 2d 940 syllabus.

A29

[17]

The Court misinterprets the circumstances in light of Fox

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

which the Court observed that a “reasonable belief” standard is the

only acceptable interpretation of the whistleblowers statute. That

is a standard for whether or not a criminal violation occurred.

Obviously, an employee cannot be charged with the niceties of

statutory interpretation and should not be required to be infallible

about whether a violation occurred. However, the instant situation

involves another question, not only whether he reasonably believed

the state statutes listed in R.C. 4113.52(A)(2) were violated, but

whether he took the appropriate steps of going to the state

prosecuting authority for those statutes. It is conceded he did not.®

This Court should have found therefore in addition to OSHA not

being a state environmental statute as a matter of law, that the

plaintiff conceded that he did not strictly comply with the statutory

requirements so as to create the cause of action either under the

statute or under the public policy exception.

Secondly, the “reasonable belief” rigor was not applied in

the majority’s finding of an OSHA-Greeley cause of action

predicated on §11(c) of OSHA. The plaintiff strictly complied with

that statute by filing with the Department of Labor. An

investigation ensued concluding with a dismissal. Since the federal

agency charged with the investigation and prosecution of §11(c)

discrimination concluded that there was no statutory violation, then

1) strictly speaking there is no violation of §11(c) upon which a

Greeley cause of action can be predicated and 2) Appellant has the

grounds to “reasonably believe” there is a violations once OSHA

°The summary judgment standard was satisfied whereby

Appellees presented all affirmative evidence below that Appellant did not

make a prima facia case under the entire statute. The affirmative evidence

is the only public filing, OSHA, which is fully spread on the record. Cf

dissent per Cook, J. At 169 ff. The negative evidence that Appellant

admitted he did pot file elsewhere was contained in the deposition of

Appellant. A copy of that page submitted to the Appellate Court.

Appellee’s Motion to the trial court referred to the depositions. Cf Motion

for Summary Judgment footnote page 2.

A30

[18]

tells him there is not, unless he holds expertise greater than OSHA.

If strict compliance is expected of every statute upon which the

public policy tort is predicated, then it should be as well for §11(c).

When the administrative authority has been exhausted as it was here

in a conclusive fashion establishing that no violation occurred, then

there is no violation of the public policy that is so necessary for a

Greeley cause of action.

PART Ill

With respect to syllabi 4 and 5:

4). The remedies available pursuant to R.C. 4113.52

for violations of the statute and remedies available

for the tort of wrongful discharge are cumulative.

5). An at-will employee was 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.

APPELLEE’S GROUND FOR RECONSIDERATION

NO. 5

In addition to prior grounds for

reconsideration, Constitutional concerns of the

separation of powers under the republican form

of government that guarantees due process and

equal protection require reconsideration of the

decision on the merits.

(As to all syllabi.)

To the extent that these remedial syllabi relate to the others, the

same grounds for reconsideration apply to them as previously

enunciated. The following is offered in addition.

A31

[19]

The guaranty of the republican form of government,

Constitution of the United States, Article IV, Section 4, includes

the concept of the separation of powers in state government. At

some juncture, whether this case or some future case, the activisim

exhibited in the judiciary exemplified by the history of the public

policy exception in Ohio law will be viewed for what it is:

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 cites 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 short-comings. Kulch

dissent by Cook, J. at 164.

The dissent may have been referring to the separation of powers of

the Ohio Constitution. However, separation of powers in state

governments is inherent in the federal Constitution. A judiciary

that presumes to legislate so blatantly affronts the separation of

powers inherent in the republican form of government on which

derivative rights like constitutional due process and equal protection

depend. Constitution of United States Amendment 14. It is

respectfully submitted that this decision be reconsidered and that the

Court retreat from the brink of excess judicial activisim in

constituting itself into a super legislature, superior even to

Congress.

A32

[20]

CONCLUSION

For the foregoing reasons, the decision and all of its syllabi

should be reconsidered and with or without rehearing.

ROETZEL & ANDRESS

/s/

Gregory P. Szuter--0018630

1375 East Ninth Street

One Cleveland Center,

Suite 1650

Cleveland, OH 44114

(216)623-0150

ATTORNEY FOR

DEFENDANT-APPELLEE

STRUCTURAL FIBERS, INC.

A33

(21]

CERTIFICATE OF SERVICE

A copy of the foregoing has been sent by ordinary mail,

postage prepaid to Patrick J. Perotti, #0005481, DWORKEN &

BERNSTEIN CO., L.P.A., 153 East Erie Street, #304, Painesville,

Ohio 44077, Attorneys for Plaintiff-Appellants 26th day of April,

1997.

/s/

Gregory P. Szuter

A34

APPENDIX C

No. 95-650

1997 Term

THE SUPREME COURT OF OHIO

FILED

April 16, 1997

Marcia Mengel, Clerk

Supreme Court of Ohio

JAMES KULCH, )

Appellant, ) JUDGMENT ENTRY

)

v. )

)

STRUCTURAL FIBERS, ) APPEAL FROM THE

INC., et al ) COURT OF APPEALS

Appellees. )

This cause, here on appeal from the Court of Appeals for

Geauga County, was considered in the manner prescribed by law.

On consideration thereof, the judgment of the court of appeals is

affirmed in part, reversed in part, and the cause is remanded to the

trial court for further proceedings, consistent with the opinion

rendered herein.

It is further ordered that the parties are to bear their

respective costs herein expended; and that a mandate be sent to the

Court of Common Pleas for Geauga County to carry this judgment

into execution; and that a copy of this entry be certified to the Clerk

A35

of the Court of Appeals for Geauga County for entry.

COSTS:

Docket Fee, $40.00, paid by Dworken & Bernstein.

(Geauga County Court of Appeals; No. 93G1824)

/s/

THOMAS J. MOYER

Chief Justice

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

KULCH, Appellant,

STRUCTURAL FIBERS, INC. Et al., Appellees.

No. 95-650.

Supreme Court of Ohio.

Submitted Oct. 8, 1996.

Decided April 16, 1997.

Former employee sued former employer for violations of

Ohio’s whistleblower statute, wrongful discharge in violation of

public policy, and negligent and intentional infliction of emotional

distress. The Court of Common Pleas, granted employer’s motion

for judgment on the pleadings and summary judgment. Former

employee appealed. The Court of Appeals, Geauga County, 1995

WL 89963, affirmed. The Supreme Court, Douglas, J., allowed

discretionary appeal, and held that: (1) former employee’s failure

to notify employer in writing of alleged health and safety violations

precluded employee from recovery under whistleblower statute; (2)

former employee did not abandon whistleblower claim based on

reporting suspected criminal violations of environmental laws, and

had no obligation to respond to employer’s summary judgment

motion on that claim; (3) former employee could maintain a

common-law tort action against the employer for wrongful

discharge/discipline in violation of public policy, overruling Phung

v. Waste Mgt., Inc.; and (4) employee who is discharged or

disciplined in violation of whistleblower statute may maintain

statutory cause of action for the violation, common-law cause of

action in tort, or both, but is not entitled to double recovery.

Affirmed in part; reversed in part; and remanded.

Pfeifer, J., filed opinion concurring in syllabus and

A37

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

judgment only.

Moyer, C.J., Cook and Lundberg Stratton, JJ., dissented

in part and concurred in part.

Cook, J., filed opinion in which Moyer, C.J., and

Lundberg Stratton, J., concurred.

[1] MASTER AND SERVANT - 30(6.15)

255K30(6. 15)

Employee’s failure to notify employer in writing of alleged health

and safety violations precluded recovery under whistleblower

statute, even though employee orally notified employer of claimed

health and safety violations, employer failed to address employee’s

concerns, employee reported alleged violations to Occupational

Safety and Health Administration (OSHA), and was subsequently

discharged. (Per Douglas, J., with two Justices concurring and one

Justice concurring in the judgment.) R.C. §§4113.52,

4113.52(A)(1){a).

[IJMASTER AND SERVANT-30(6.35)

255K30(6.35)

Employee’s failure to notify employer in writing of alleged health

and safety violations precluded recovery under whistleblower

statute, even though employee orally notified employer of claimed

health and safety violations, employer failed to address employee's

concerns, employee reported alleged violations to Occupational

Safety and Health Administration (OSHA), and was subsequently

discharged. (Per Douglas, J., with two Justices concurring and one

Justice concurring in the judgment.) R.C. §§4113.52,

4113.52(A)(1)(a).

[2]APPEAL AND ERROR-223

30k223

Employee did not abandon whistleblower claim based on reporting

A38

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

suspected criminal violations of environmental laws, even though

he failed to defend it on employer’s motion for summary judgment,

as he specifically asserted claim in complaint, and employer did not

attack that claim in summary judgment motion. (Per Douglas, J.,

with two Justices concurring and ome Justice concurring in the

judgment.) R.C. §§ 3704.01 et seq., 3734.01 et seq.,

4113.52(A)(2), 6109.01 et seq., 6111.01 et seq.

[2] JUDGMENT-183

228K 183

Employee did not abandon whistleblower claim based on reporting

suspected criminal violations of environmental laws, even though

he failed to defend it on employer’s motion for summary judgment,

as he specifically asserted claim in complaint, and employer did not

attack that claim in summary judgment motion. (Per Douglas, J.,

with two Justices concurring and one Justice concurring in the

judgment.) R.C. §§ 3704.01 et seq., 3734.01 et seq.,

4113.52(A)(2), 6109.01 et seq., 6111.01 et seq.

[SJMASTER AND SERVANT-30(6. 15)

255K30(6.15)

Employee may directly notify any appropriate public official or

agency of perceived statutory violations, without notifying

employer, where employee becomes aware in the course of his or

her employment of violation of Air Pollution Control Act, Solid

and Hazardous Wastes Act, Safe Drinking Water Act (SDWA), or

Water Pollution Control Act, that is a criminal offense. (Per

Douglas, J., with two Justices concurring and one Justice

concurring in the judgment.) R.C. §§3704.01 et seq., 3734.01 et

seq., 4113.52(A)(2), 6109.01 et seq., 6111.01 et seq.

[4JMASTER AND SERVANT-30(6. 15)

255k30(6. 15)

At-will employee who is discharged or disciplined for filing a

A39

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

complaint with Occupational Safety and Health Administration

(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, overruling Phung, supra, 23 Ohio St.3d 100, 23 OBR 260,

491 N.E.2d 1114. Occupational Safety and Health Act of 1970, §

2 et seq., 29 U.S.C.A. § 651 et seq.; R.C. §§ 3704.01 et seq.,

3734.01 et seq., 4113.52.

[SJMASTER AND SERVANT-30(1.10)

255K30(1.10)

Elements of cause of action for tortious wrongful discharge in

violation of public policy are that: clear public policy existed and

was manifested in Constitution, statute or administrative regulation,

or in the common law (clarity element); dismissing employees

under such circumstances would jeopardize public policy (jeopardy

element); plaintiff's dismissal was motivated by conduct related to

the public policy (causation element); and employer lacked

overriding legitimate business justification for dismissal (overriding

justification element). (Per Douglas, J., with two Justices

concurring and one Justice concurring in the judgment.)

[6JMASTER AND SERVANT-43

255k43

Clarity and jeopardy elements of tort of wrongful discharge in

violation of public policy are questions of law to be determined by

the court. (Per Douglas, J., with two Justices concurring and one

Justice concurring in the judgment.)

[7JMASTER AND SERVANT-43

255k43

Causation and overriding justification elements of tort of wrongful

discharge in violation of public policy are questions of fact for the

trier-of-fact. (Per Douglas, J., with two Justices concurring and

one Justice concurring in the judgment.)

A40

™ we sisi adie —

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

[8JMASTER AND SERVANT-30(6.15)

255k30(6. 15)

Public policy expressed in Occupationa! Safety and Health Act’s

(OSHA’s) provision that employers may not retaliate against

employees who file Occupational Safety and Health Administration

(OSHA) complaints, justified exception to employment-at-will

doctrine and supported cause of action for wrongful discharge in

violation of public policy. Occupational Safety and Health Act of

1970, §11(c), 29 U.S.C.A. § 660(c). (Per Douglas, J., with two

Justices concurring and one Justice concurring in the judgment.)

[8SJMASTER AND SERVANT-30(6.35)

255k30(6.35)

Public policy expressed in Occupational Safety and Health Act’s

(OSHA’s) provision that employers may not retaliate against

employees who file Occupational Safety and Health Administration

(OSHA) complaints, justified exception to employment-at-will

doctrine and supported cause of action for wrongful discharge in

violation of public policy. Occupational Safety and Health Act of

1970, §11(c), 29 U.S.C.A. § 660(c). (Per Douglas, J., with two

Justices concurring and one Justice concurring in the judgment.)

[9JMASTER AND SERVANT-30(6.35)

255K30(6.35)

Public policy expressed in whistleblower statute justified exception

to employment at-will doctrine and supported wrongful discharge

in violation of public policy cause of action. R.C. §

4113.52(A){(2). Per Douglas, J., with two Justices concurring and

one Justice concurring in the judgment.)

[L0OJMASTER AND SERVANT-30(6.35)

255k30(6.35)

In order for an employee to be afforded protection as a

“whistleblower,” such employee must strictly comply with dictates

of whistleblower statute. R.C. § 4113.52. (Per Douglas, J., with

A4l

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

two Justices concurring and one Justice concurring in the

judgment.)

[1LJMASTER AND SERVANT-3-0(6.35)

255k30(6.35)

Employee who fails to strictly comply with whistleblower statute

cannot base claim for tortious wrongful discharge in violation of

public policy solely upon public policy embodied in that statute.

R.C. § 4113.52. (Per Douglas, J., with two Justices concurring and

one Justice concurring in the judgment.)

[1ZJMASTER AND SERVANT-30(6.35)

255k30(6.35)

Whistleblower statute does not preempt common-law cause of

action against employer who discharges or disciplines employee in

violation of that statute. R.C. § 4113.52

[1I3JMASTER AND SERVANT-30(6.35)

255k30(6.35)

At-will employee who is discharged or disciplined in violation of

the public policy embodied in whistleblower statute may maintain

common-law wrongful discharge in violation of public policy cause

of action against employer so long as employee fully complied with

Statute and was subsequently discharged or disciplined. R.C. §

4113.52.

[14JMASTER AND SERVANT-35

255k35

Remedies available for violations of whistleblower statute and

remedies available for tort of wrongful discharge are cumulative.

R.C. § 4113.52.

[ISJMASTER AND SERVANT-35

255k35

At-will employee who is discharged or disciplined in violation of

A42

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

whistleblower statute may maintain statutory cause of action for the

violation, common-law cause of action in tort, or both, but is not

entitled to double recovery. R.C. § 4113.52.

Syllabus by the Court

*134 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.)

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.

A43

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

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.

*135 Structural Fibers, Inc., appellee, is an operation

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 complains by

informing him hat he could either do his job or find employment

elsewhere.

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, cobalt [sic] mixes.” In April 1991, OSHA

inspected the plant and, among other things, performed air

monitoring in the winding area. The air sampling data 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. [FN1] The

violations found by OSHA were apparently unrelated to the matters

set forth in Kulch’s January 1991 OSHA complaint.

A44

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

FN1. The fines imposed by OSHA were later

reduced under the terms of a settlement agreement

between OSHA and Structural Fibers. x

According to Kulch, Structural Fibers and the ESSEF

Corporation (collectively, “appellees”) retaliated against him for

having filed the report with OSHA. Specifically, Kulch’s **311

coworkers were approached by management and asked to confirm

the identify 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 *136 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.

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 previous OSHA

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

complaint.

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

A45

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

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.

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 Whisleblower 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 pojicy. 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.

“Plaintiff seeks to recover damages for wrongful discharge

pursuant to the Whistleblower Act, R.C. 4113.52. Plaintiff

reported :o [OSHA] that the defendant[s’] work place was unsafe

because cefendant[s] permitted the use and *137 discharge into the

air of totic and corrosive chemicals. Defendant{s] [claim] that

plaintiff was discharged, not for whistleblowing, but for

unsatisfa¢ory work performance. For the purposes of this motion,

the court must assume that defendant[s] discharged plaintiff because

plaintiff ‘eported defendant[s] to OSHA.

A46

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

“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. * * *

**312 “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.

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

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

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

A47

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

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 *138 upheld the grant of

summary judgment in favor of appellees on the claims for negligent

and intentional infliction of emotional distress.

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, Painesville, for

appellant.

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

appellees.

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

Frederick M. Gittes, Columbus, 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, Justice.

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 summary judgment on

Kulch’s statutory cause of action for violations of R.C. 4113.52,

Ohio’s Whistleblower Statute. [FN2] The second concerns the court

of *139 appeals’ 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 **313 disciplined for

“whistleblowing.” The third involves the question whether the

*140 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,

A48

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

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

further proceedings.

FN2. 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

A49

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

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; “(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

A50

th ee ee i »

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

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 the 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

AS1

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

Revised Code.”

Appellant’s Statutory Cause of Action

The record reveals that appellant orally notified appellees

of claimed health and safety **314 violations at the Structural

Fibers plant long before he reported the matter O 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. 4113.52(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).

Appellant presents four propositions of law for our

consideration. Propositions of Law nos. 1 and 3 read as follows:

“Proposition of Law No. 1

[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. § 4113.52(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 briefings 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

A52

Kulch v. Structural Fibers, Inc et al.

78 Ohio St.3d 134, 677 N.E.2d 308

other pleading properly on file. ***”

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. 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 *141 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).

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 Contreres, 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

A53

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

these requirements have been satisfied and 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 written report, whichever is

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

prosecuting authority of the county or municipal corporation **315

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

ceporting 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 gooa faith effort to correct the violation

within twenty-four hours *142 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

A54

Kuich v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

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 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.)

We continue to believe that our discussion in Contraires

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.

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Kutch v. Structural Fibers, Inc. et al.

73 Ohio St.3d 134, 677 N.E.2d 308

4113.52(A)(1)(a).

*143 [2][3] Nevertheless, in his third proposition of law,

appellant contends that he was a protected whistleblower under the

terms of R.C. 4113.52(aX(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

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

Drinking Water Act), or 6111 (Water Pollution Control Act) that

is a criminal offense. **316 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.

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 —.**°

“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.”

However, we find that appellant clearly raised a claim for

protection under R.C. 41 13.52(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

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Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

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.

“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 3434.

#144"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. 4113.52-.52 * * *.”(Emphasis

added.)

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 3434. 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 appeal’s

conclusion that appellant has somehow waived his claim that he was

AS7

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

a protected reporter of information under R.C. 4113.52(A)(2). The

claim was specifically asserted in the factual allegations of the

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. **317

4113.52(A)(2). See discussion infra. Therefore, any omission by

appellant to defend his (!)(2) claim for whistleblower protection in

response to appellees’ motion for summary judgment cannot

constitute an abandonment of that claim.

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

allegations and defenses of his pleading to show facts of his

awareriess 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 *145

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

forces the nonmoving party to produce evidence on any issue for

which tat 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 its initial burden under Civ.R. 56 simply by

making a conclusory assertion that the nonmoving party has no

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Fi WARN ee kic tal m it Al

Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

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.” [FN3] (Emphasis added in

part and deleted in part.)

FN3. 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,

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Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

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 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 ruie, 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.”

**318 *146 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

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Kulch v. Structural Fibers, Inc. et al.

78 Ohio St.3d 134, 677 N.E.2d 308

Whistleblower Statute] because he failed to satisfy the detailed

Statutory prerequisites to filing a lawsuit under R.C. § 4113.52;

and, (2) Kulch w

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