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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 1008

## Text

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,

V.

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.

li

Ii.

s

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 ,

[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. )

he

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,
v.
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.”

I
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.

A55

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

A56

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

A60

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 was terminated for legitimate business reasons **
*.” In a memorandum in support of the motion, appellees argued
that appellant could not establish a prima facie case of violations of
the Whistleblower Statute for several reasons. First, appellees
argued that Kulch’s report to OSHA did not concern criminal
violations of the Occupational Safety and Health Act of 1970,
Section 651 et seq., Title 29, U.S.Code. In this regard, appellees
claimed that Kulch’s report to OSHA was not a report concerning
a “criminal offense” within the meaning of R.C. 4113.52(A)(1)(a).
Second, appellees argued that, contrary to R.C. 4113.52(A)(1)(a),
Kulch had failed to orally notify them of health and safety
violations before reporting the matter to OSHA. Third, appellees
asserted that Kulch had never provided them with a written report
concerning the alleged health and safety violations. Alternatively,
appellees argued that Kulch could not establish a prima facie case
of violations of the Whistleblower Statute, since Kulch had been
terminated for, inter alia, unsatisfactory work performance. To
support these various arguments, appellees relied upon deposition
testimony, affidavits, and other materials of the type listed in
Civ.R. 56(C).

In response to the motion for summary judgment, appellant
relied upon evidentiary materials of the type listed in Civ.R. 56°
indicated that there were genuine issues of material fact remaining
to be litigated concerning the reasons for his termination.
Appellant also pointed to evidence indicating that he had verbally
notified appellees regarding the conditions at the Structural Fibers
plant before he reported the matter to OSHA, but he did not raise
any specific issue or *147 argument concerning R.C.
4113.52(A)(2). However, in their motion for summary judgment,
appellees pointed to no evidentiary materials indicating the lack of
a genuine issue of material fact whether Kulch was a protected
whistleblower under the terms of R.C. 4113.52(A)(2) for having
directly reported to OSHA concerning alleged criminal violations

Aél

Kulch v. Structural Fibers, Inc. et al.
78 Ohio St.3d 134, 677 N.E.2d 308

of R.C. Chapters 3704 and 3734.

Appellees’ motion for summary judgment clearly dealt
with appellant’s failure to comply with the specific reporting
requirements of R.C. 4113.52(A)(1)(a). In this regard, appellees
were successful in defeating any claim that appellant was a
protected whistleblower under the provisions of R.C.
4113.52(A)(1)(a), since it was undisputed that appellant had
reported to OSHA without having notified his employer, both orally
and in writing, concerning the alleged criminal violations.
However, appellees never satisfied (or even attempted to satisfy)
their initial burden under Civ.R. 56 of demonstrating that there
were no genuine issues of material fact concerning appellant’s
claim for whistleblower protection under the provisions of R.C.
4113.52(A)(2). Thus, appellant had no obligation to respond to the
motion by raising or otherwise supporting the factual ailegations
already contained in his amended complaint pertaining to his claim
for possible whistleblower protection under R.C. 4113.52(A)(2).

The trial court granted summary judgment in favor of
appellees on appellant’s entire statutory cause of action solely
because appellant had not complied with the specific reporting
requirements of R.C. **319 4113.52(A)(1)(a). | Appellant’s
amended complaint sought whistleblower protection under R.C.
4113.52(A)(2) as well as 4113.52(A)(1)(a). By entering summary
judgment against appellant on his entire statutory claim, the trial
court erred to the extent that it dismissed appellant’s claim for
protection under R.C. 4113.52(A)(2). Appellees never challenged
appellant’s claim that his report to OSHA was an authorized report
under R.C. 4113.52(A)(2). Moreover, contrary to appellees’
suggestions, appellant had no obligation to respond to the motion
for summary judgment by producing evidence on every element of
his claim for protection under R.C. 4113.52(A)(2), since appellees
never discharged their initial burden of demonstrating the absence
of a genuine issue of material fact concerning that claim and their
entitlement to judgment as a matter of law.

Appellees now protest that appellant never reported the

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Kulch v. Structural Fibers, Inc. et al.
78 Ohio St.3d 134, 677 N.E.2d 308

alleged criminal violations of R.C. Chapters 3704 and 3734 to the
public authority responsible for enforcement of those laws.
Appellees also contend that the matters reported to OSHA did not
constitute criminal violations of R.C. Chapters 3704 and 3734.
Appellant counters appellees’ first argument by noting that (1) R.C.
4113.52(A)(2) authorizes an employee to report alleged criminal
violations involving R.C. Chapters 3704 and 3734 to any
appropriate public official or agency that has regulatory authority
over the employer, and (2) OSHA was a regulatory agency with
regulatory authority over appellees. Appellant counters appellees’
second *148 argument by asserting that his report to OSHA clearly
involved criminal violations of R.C. Chapters 3704 and 3734.
Additionally, appellant claims that his report to OSHA was
authorized under R.C. 4113.52(A)(2)even if no actual violation of
R.C. Chapters 3704 and 3734 occurred, since he reasonably
believed that appellees’ conduct involved criminal violations of
those Chapters of the Revised Code. Appellant’s contentions in this
regard are bolstered by our recent decision in Fox v. Bowling
Green (1996), 76 Ohio St.3d 534, 668 N.E.2d 898, wherein we
stated that, “[f]rom a public policy perspective, the ‘reasonable
belief’ standard is the only acceptable interpretation of the
[whistleblower]statute. R.C. 4113.52 was designed to give
whistleblowers some protection in the Ohio’s employment-at-will
environment. * * * The public, in turn, relies on whistleblowers for
protection. The ‘actual violation’ standard could delay a
whistleblower’s reporting of a violation which endangers the public
safety, or at worst, prevent him from reporting the violation at all.
The statute expects a whistleblower to be vigilant, attuned to the
public’s safety, loyal to his employer, and sometimes even brave--it
does not require him to be infallible.” (Emphasis added.) Id. at
538-539, 668 N.E.2d at 902.

Obviously, the proper place for appellees to have raised
their arguments concerning the viability of appellant’s claim for
whistleblower protection under R.C. 4113.52(A)(2) was in their
motion for summary judgment at the trial court level. This

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Kulch v. Structural Fibers, Inc. et al.
78 Ohio St.3d 134, 677 N.E.2d 308

appellees failed to do. Accordingly, we will not address the merits
of appellees’ contentions that appellant is not a protected
whistleblower under the provisions of R.C. 4113.52(A)(2). These
arguments may be raised before the trial court on remand.

In conclusion, we find that the grant of summary judgment
in favor of appellees on appellant’s statutory cause of action for
violations of the Whistleblower Statute was appropriate to the
extent that appellant claimed protection as a whistleblower under
R.C. 4113.52(A)(1)(a). However, we find that the trial court erred
in granting summary judgment in favor of appellees on appellant’s
claim for protection under R.C. 4113.52(A)(2). Accordingly, we
reject appellant’s first proposition of law, but find his third
proposition of law to be well taken. We vacate that portion of the
trial court’s judgment which dismissed appellant’s claims for
protection under R.C. 4113.52(A)(2), reinstate appellant’s statutory
claim that he was unlawfully retaliated against by appellees for
having filed an authorized report under R.C. 4113.52(A)(2), and
remand this cause to the trial court for further proceedings on the
statutory cause of action.

II
Greeley Claim

[4] In his second proposition of law, appellant contends that
he also has an independent **320 common-law cause of action
based upon Greeley, supra, 49 Ohio*149 St.3d 228, 551 N.E.2d
981, for wrongful discharge in violation of public policy.
Appellant suggests that he is entitled to maintain his Greeley claim
either in addition to or in lieu of his statutory cause of action. We
agree with appellant’s contentions in this regard. Accordingly, for
the reasons that follow, we reverse that portion of the court of
appeals’ judgment which affirmed the grant of summary judgment
against appellant on the claim of wrongful discharge in violation of
public policy.

[FN4.]}

A64

a

Kulch v. Structural Fibers, Inc. et al.
78 Ohio St.3d 134, 677 N.E.2d 308

FN4. The court of appeals apparently assumed (and the
parties to this appeal apparently agree) that the trial court granted
summary judgment in favor of appellees on appellant’s claim of
wrongful discharge in violation of public policy. We accept this
assumption for purposes of this appeal. However, we note, in
passing, that appellees moved for judgment on the pleadings
(Civ.R.12[C] ) with respect to appellant’s claim of wrongful
discharge in violation of public policy--not for summary judgment
under Civ.R. 56.

In Greeley, 49 Ohio St.3d 228, 551 N.E.2d 981, Robert
Greeley, an at-will employee, was allegedly discharged from his
employment solely because his employer had received a court order
requiring the withholding of a specific amount of Greeley’s wages
for child support. Greeley sued his former employer for wrongful
discharge, since R.C. 3113.213(D) prohibits from using a child
support wage withholding order as a basis for discharging an
employee. R.C. 3113.213(D) sets forth a monetary fine for
employers who violate the statute but does not provide for a private
cause of action on behalf of the aggrieved employee. In Greeley,
we recognized a public-policy exception to the employment-at-will
doctrine and held that Greeley was entitled to maintain a cause of
action in tort against his former employer for wrongful discharge.
Id. At 233-235, 551 N.E.2d at 986-987. Specifically, in Greeley,
at paragraphs one, two and three of the syllabus, we held that:

“1. Public policy warrants an exception to the employment-
at-will doctrine when an employee is discharged or disciplined for
a reason which is prohibited by statute. (R.C. 3113.213[D],
construed and applied.)

“2. Henceforth, the right of employers to terminate
employment at will for ‘any cause’ no longer includes the discharge
of an employee where the discharge is in violation of a statute and
thereby contravenes public policy. (Fawcett v. G.C. Murphy &
Co. [1976], 46 Ohio St.2d 245, 75 0.0.2d 291, 348 N.E.2d 144,
modified.)

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

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Kulch v. Structural Fibers, Inc. et al.
78 Ohio St.3d 134, 677 N.E.2d 308

violation of public policy may be brought in tort.”

Additionally, in Greeley, we recognized that the public-
policy exception to the employment-at-will doctrine need not be
premised solely upon a violation of a specific statute. We said that:
“Today, we only decide the question of a public policy exception
to the employment-at-will doctrine based on violation of a specific
*150 statute. This is not to say that there may not be other public
policy exceptions to the doctrine but, of course, such exceptions
would be required to be of equally serious import as the violation
of a statute.” (Emphasis added.) Id., 49 Ohio St.3d at 234-235, 551
N.E.2d at 987.

In Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St.3d
541, 584 N.E.2d 729, syllabus, this court held that “[a]bsent
statutory authority, there is no common-law basis in tort for a
wrongful discharge claim.” The syllabus in Tulloh was supported
by a majority composed of two justices and two visiting judges.

However, in Painter v. Graley (1994), 70 Ohio St.3d 377,
639 N.E.2d 51, paragraphs two and three of the syllabus, we held
that:

“2. To state a claim of wrongful discharge in violation of
public policy, a plaintiff must allege facts demonstrating that the
employer’s act of discharging him contravened a ‘clear public
policy.’ (Greeley v. Miami Valley Maintenance Contractors, Inc.
[1990], 49 Ohio St.3d 228, 551 N.E.2d 981, affirmed and
followed.) 4

“3. ‘Clear public policy’ sufficient to justify an exception
to the employment-at-will doctrine is not limited to public policy
expressed by the General Assembly in the form of statutory
enactments, but may also be discerned as a matter of law based on
other sources, such as the Constitutions of Ohio **321 and the
United States, administrative rules and regulations, and the
common law. (Tulloh v. Goodyear Atomic Corp. [1992], 62 Ohio
St.3d 541, 584 N.E.2d 729, overruled.)” (Emphasis added.)

Therefore, Greeley and Painter recognize an exception to
the employment-at-will doctrine when an at-will employee is

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Kulch v. Structural Fibers, Inc. et al.
78 Ohio St.3d 134, 677 N.E.2d 308

discharged or disciplined for a reason that contravenes clear public
policy. There is no question that Greeley and Painter recognize
that clear public policy may be ascertained from a statutory
provision or from any number of other sources. If there was ever
any serious question whether a specific statute had to be violated
for Greeley to apply, Painter answered that question in the negative
by expressly overruling Tulloh, supra. See Painter, paragraph
three of the syllabus. The question whether the Greeley public-
policy exception to the employment-at-will doctrine applies only in
cases involving a statutory violation was soundly rejected not only
in Painter, but in the recent cases of Collins v. Rizkana (1995), 73
Ohio St.3d 65, 652 N.E.2d 653.

[5] In determining whether appellant has a viable common-
law cause of action under Greeley and its progeny for tortious
wrongful discharge in violation of public policy, we reaffirm the
following suggested analysis set forth in Painter, supra, 70 Ohio
St.3d at 384, 639 N.E.2d at 57, fn. 8:

*151 “In reviewing future cases, Ohio courts may find
useful the analysis of Villanova Law Professor H. Perritt, who,
based on review of cases throughout the country, has described the
elements of the tort as follows:

“ ‘1. That [a] clear public policy existed and was
manifested in a state or federai constitution, statute or
administrative regulation, or in the common law (the clarity
element).

“ ‘2. That dismissing employees under circumstances like
those involved in the plaintiff's dismissal would jeopardize the
public policy (the jeopardy element).

“ *3. The plaintiff's dismissal was motivated by conduct
related to the public policy (the causation element).

“ *4. The employer lacked overriding legitimate business
justification for the dismissal. (The overriding justification
element.)’ (Emphasis sic.)

“H. Perritt, The Future of Wrongful Dismissal Claims:
Where Does Employer Self Interest Lie? (1989), 58 U.Cin.L.Rev.

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Kulch v. Structural Fibers, Inc. et al.
78 Ohio St.3d 134, 677 N.E.2d 308

397, 398-399.”

[6][7] We recently applied this same analysis in Collins,
supra, 73 Ohio St.3d at 69-74, 652 N.E.2d at 657-660, in
determining that, in Ohio, a cause of action may be brought for the
tort of wrongful discharge in violation of public policy based on
sexual harassment/discrimination in the workplace. In Collins, we
noted that the clarity and jeopardy elements of the tort of wrongful
discharge are questions of law to be determined by the court. Id.
at 70, 652 N.E.2d at 658. Conversely, the causation and
overriding justification elements are questions of fact for the trier-
of-fact. Id. Thus, given the procedural disnosition of the case at
bar, we consider only he clarity and jeopardy elements of the tort
of wrongful discharge.

[8] Turning to the clarity element, we are easily able to
identify at least two main sources of public policy prohibiting the
alleged retaliatory discharge of appellant based on his report to
OSHA. For the reasons that follow, we find that each of these two
sources of public policy is independently sufficient to justify an
exception to the employment-at-will doctrine and to warrant
recognition of a cause of action for wrongful discharge in violation
of public policy.

The first main source of expressed public policy can be
found in Section 660(c), Title 29, U.S.Code, which specifically
prohibits employers from retaliating against employees (like
appellant) who file OSHA complaints. Section 660(c) does not
provide an employee with a private right of action against the
employer. Section 660(c)91), Title 29, U.S.Code provides: “No
person shall discharge or in any manner discriminate against any
employee because such employee has filed any complaint or
instituted or caused to be instituted any proceeding under or related
to this chapter [the federal Occupational Safety and Health Act,
Section 651 et seq., **322 Title 29, U.S.Code] * * * or because of
the exercise by such employee on behalf of himself or others of any
right afforded by this chapter.” As explained *152 in our
discussion infra, this federal statute constitutes a sufficiently clear

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Kulch v. Structural Fibers, Inc. et al.
78 Ohio St.3d 134, 677 N.E.2d 308

expression of public policy to warrant an exception to the doctrine
of employment at will, since the federal statute is consistent with
Ohio’s public policy favoring workplace safety.

Appellees suggest, however, that federal statutes cannot be
used to determine whether there is a sufficiently clear public policy
to justify an exception to the employment-at-will doctrine. In this
regard, appellees point to paragraph three of the syllabus in Painter,
70 Ohio St.3d 377, 639 N.E.2d 51, which does not include any
reference to federal statutes as providing a basis for a Greeley
claim. However, the analysis of the “clarity element” we employ
in he case at bar is the one specifically suggested in Painter, supra,
at 384, 639 N.E.2d at 57, fn.8. That analysis mandates
consideration of the question whether clear public policy is
manifested in a state or federal constitution, statute or
administrative regulation, or in the common law. Id. See, also,
Collins, 73 Ohio St.3d at 69-70, 652 N.E.2d at 657-658, wherein
we adopted the suggested analysis set forth in footnote eight of the
Painter decision, including the suggested analysis of the clarity
element of the tort of wrongful discharge. Furthermore, in Mers
V. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 103, 19 OBR
261, 263, 483 N.E.2d 150, 15, we recognized that the
employment-at-will doctrine in Ohio is not “without any defined
limits.” In Mers, we specifically cited Section 660(c), Title 29,
U.S.Code as one example of the type of laws forbidding retaliatory
discharge. Id. At 103, 19 OBR at 263-264, 483 N.E.2d at 153, fn.
2.

Courts in other jurisdictions have also determined that the
public policy embodied in the federal Occupational Safety and
Health Act, Section 651 et seq., Title 29, U.S.Code, may serve as
a basis for recognition of a common-law cause of action for
wrongful discharge in violation of public policy. See, e.g.,
Cloutier v. Great Atlantic & Pacific Tea Co., Inc. (1981), 121
N.H. 915, 436 A.2d 1140, and Sorge v. Wright’s Knitwear Corp.
(E.D.Pa.1993), 832 F.Supp. 118. In this regard, we are
particularly persuaded by the case of Cerracchio v. Alden Leeds,

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Kulch v. Structural Fibers, Inc. et al.
78 Ohio St.3d 134, 677 N.E.2d 308

Inc. (1988), 223 N.J.Super. 435, 538 A.2d 1292 (holding that at-
will employee discharged for filing OSHA complaint could
maintain tort action for wrongful discharge in violation of New
Jersey’s public policy favoring workplace safety).

Ohio’s public policy is clearly in keeping with the laudable
objectives of the federal Occupational Safety and Health Act. The
public policy of this state demands that employees be provided with
a safe work environment and that unsafe working conditions be
corrected. This conclusion is supported by a host of statutes and
constitutional provisions favoring safety in the workplace. See,
e.g., Sections 34 and 35, Article II of the Ohio Constitution; R.C.
4101.11 (duty of employer to protect employees and frequenters);
R.C. 4101.12 (duty of employer to furnish safe place of
employment); R.C. 4121.13 (safety and investigative *153 duties
of the Administrator of Workers’ Compensation); R.C. 4121.17
(duty of the Bureau of Workers’ Compensation to investigate
petitions concerning unsafe employment or places of employment);
R.C. 4121.47 (no employer shall violate a specific safety rule
adopted by the Administrator of Workers’ Compensation or an Act
of the General Assembly to protect the lives, health, and safety of
employees); and R.C. 4121.48 (occupational safety loan program
to reduce employment hazards and promote health and safety of
employees). Retaliation against employees who file OSHA
complaints concerning unsafe or unhealthy conditions in the
workplace is an absolute affront to Ohio’s public policy favoring
workplace safety. Such retaliation clearly contravenes the public
policy of this state.

[9}][{10] The second main source of expressed public policy
prohibiting appellant’s alleged retaliatory discharge is R.C.
4113.52, which embodies a clear public policy favoring
whistleblowing. However, the public policy embodied in the
Whistleblower Statute is limited. By imposing strict and detailed
requirements on certain whistleblowers and restricting the statute’s
applicability to a narrow set of circumstances, the legislature
clearly intended to encourage whistleblowing **323 only to the

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78 Ohio St.3d 134, 677 N.E.2d 308

extent that the employee complies with the dictates of R.C.
4113.52. As we held in Contreras, supra, 73 Ohio St.3d 244, 652
N.E.2d 940, syllabus: “In order for an employee to be afforded
protection as a ‘whistleblower,’ such employee must strictly comply
with the dictates of R.C. 4113.52. Failure to do so prevents the
employee from claiming the protections embodied in the statute.”

[11] In Contreras, the plaintiff-appellant, Phillip Contreras,
was allegedly discharged from his employment for whistleblowing.
Contreras sued his former employer for alleged violations of the
Whistleblower Statute and for wrongful discharge in violation of
public policy. In Contreras, we found that because Contreras had
not complied with the specific reporting requirements of R.C.
4113.52, he could not avail himself of the protections of the
Whistleblower Statute. Id., 73 Ohio St.3d at 249, 652 N.E.2d at
944. Further, we found that the question whether Contreras was
entitled to maintain a cause of action for the tort of wrongful
discharge was moot, stating: “If appellant was entitled to maintain
a Greeley claim, an issue that today we do not decide, then that
claim would have to be based upon the public policy embodied in
R.C. 4113.52. Since appellant did not comply with the statute in
the first instance, he would have no foundation for a Greeley claim
if, in fact, he was entitled to assert such a claim. Therefore, in this
case the issue is moot.” Id. At 251, 652 N.E.2d at 946. The
obvious implication of Contreras is that an employee who fails to
strictly comply with the requirements of R.C. 4113.52 cannot base
a Greeley claim solely upon the public policy embodied in that
Statute.

*154 Here, appellant claims to have been wrongfully
discharged for having reported his employer to OSHA for what he
apparently believed were criminal violations of the Occupational
Safety and Health Act and R.C. Chapters 3704 and 3734. In our
discussion in Part I, supra, we determined that appellant did not
strictly comply with the requirements of R.C. 4113.52(A)(1)(a) in
reporting his employer to OSHA. Therefore, it is clear that
appellant has no foundation for a Greeley claim based on the public

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78 Ohio St.3d 134, 677 N.E.2d 308

policy embodied in R.C. 4113.52 protecting employees who report
matters in accordance with R.C. 4113.52(A)(1)(a). However, in
our discussion in Part I, supra, we determined that the trial court
erred in dismissing appellant’s claim for whistleblower protection
under R.C. 4113.52(A)(2). Therefore, assuming that appellant
complied with the reporting requirements of R.C. 4113.52(A)(2)
and that appellees retaliated against him in a manner contrary to the
terms of the Whistleblower Statute, appellant has stated a second
and independent foundation for a Greeley claim premised upon the
clear public policy embodied in R.C. 4113.52.

Contreras, supra, 73 Ohio St.3d 244, 652 N.E.2d 940, is
readily distinguishable from the case at bar. The plaintiff-employee
in Contreras had no viable statutory cause of action for protection
under the Whistleblower Statute but asserted a Greeley claim based
solely on the public policy embodied in R.C. 4113.52. However,
the public policy embodied in R.C. 4113.52 could not have
supported that claim, since the employee had failed in the first
instance to comply with the dictates of the statute. In the case at
bar, appellant continues to have a viable claim for whistleblower
protection, since he arguably complied with R.C. 4113.52 (A)(2)
in reporting matters to OSHA. Thus, to the extent that he complied
with R.C. 4113.52, appellant has established a firm foundation for
a Greeley claim for wrongful discharge in violation of the public
policy embodied in the Whistleblower Statute. Additionally, and
in any event, appellant’s Greeley claim is fully and independently
supported by the first source of public policy identified in our
discussion, supra --the clear public policy of this state encouraging
safety in the workplace and forbidding retaliation against those who
file OSHA complaints aimed at correcting unsafe and unhealthy
working conditions.

Having identified two separate and independent sources of
clear public policy justifying an exception to the employment-at-
will doctrine, we must now consider whether dismissing-employees
under circumstances like those involved in this case would
jeopardize the public policy (the jeopardy element).

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78 Ohio St.3d 134, 677 N.E.2d 308

With respect to the first identified source of public policy,
there is no question that **324 Ohio’s policy favoring workplace
safety would be seriously compromised (jeopardized) if employers
were allowed to fire employees for reporting matters to OSHA.
Obviously, such retaliatory practices could deter employees from
reporting what they believe to be legitimate health and safety
concerns. Here, *155 appellant complained to OSHA concerning
the health and safety of his work environment. He claims to have
done so based upon a good faith belief that the complaint was valid.
According to appellant, he was retaliated against and ultimately
discharged for having filed his complaint with OSHA. Under these
circumstances, we find that the jeopardy element of the tort of
wrongful discharge has clearly been satisfied.

The jeopardy analysis relating to the second identified
source of clear public policy, R.C. 4113.52, is a bit more difficult.
This is so because R.C. 4113.52 contains certain civil remedies for
qualifying whistleblowers. However, the civil remedies set forth
in R.C. 4113.52 are not adequate to fully compensate an aggrieved
employee who is discharged, disciplined, or otherwise retaliated
against in violation of the statute. In this regard, recognizing the
right of an aggrieved employee who is retaliated against in violation
of R.C. 4113.52 to maintain a Greeley-based common-law cause
of action for the violation of the public policy embodied in that
statute would serve to encourage the legislative objectives of R.C.
4113.52 and complement the limited remedies available under the
Whistleblower Statute.

Appellees suggest, however, that Greeley, supra, 49 Ohio
St.3d 228, 551 N.E.2d 981, applies only in cases where an
employee is discharged or disciplined for a reason prohibited by a
statute that provides the employee no specific remedy. We reject
such a narrow interpretation of Greeley. The syllabus in Greeley
does not say that. Greeley and its progeny stand for the proposition
that, in Ohio, the judicially recognized doctrine of employment at
will has certain limitations. One of those limitations is that the
doctrine will not be followed in cases where an at-will employee is

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Kulch v. Structural Fibers, Inc. et al.
78 Ohio St.3d 134, 677 N.E.2d 308

discharged or disciplined for a reason that violates a statute and
thereby contravenes public policy. Greeley, supra,

paragraphs one and two of the syllabus. The syllabus in Greeley
makes no exception for statutes like R.C. 4113.52 that contain
remedial provisions. That, of course, was no mistake. The
Greeley public-policy exception to the doctrine of employment at
will was not intended to apply only where a statute provides no
civil remedies. Rather, Greeley and its progeny are intended to
bolster the public policy of this state and to advance the rights of
employees who are discharged or disciplined in contravention of
clear public policy. Accord Amos v. Oakdale Knitting Co. (1992),
331 N.C. 348, 356, 416 S.E.2d 166, 171 (holding that a public-
policy exception to the employment-at-will doctrine adopted by the
North Carolina Supreme Court in Coman v. Thomas Mfg. Co.
[1989], 325 N.C. 172, 381 S.E.2d 445, was “not just a remedial
gap-filler. It is a judicially recognized outer limit to a judicially
created doctrine, designed to vindicate the rights of employees fired
for reasons offensive to the public policy of [North Carolina]. The
existence of other remedies, therefore, does not render the public
policy exception moot.”). We are not now *156 prepared nor have
we ever been inclined to limit Greeley to the extent urged by
appellees.

[12] Additionally, recognizing the right of an at-will
employee who is discharged or disciplined in violation of R.C.
4113.52 to maintain a Greeley claim, a statutory whistleblower
claim, or both, would foster (not hinder) the public policy of this
state to protect whistleblowers from unlawful retaliatory measures.
Therefore, the mere existence of statutory remedies in R.C.
4113.52 does not, without more, operate to bar recognition of
appellant’s Greeley claim for tortious wrongful discharge in
violation of R.C. 4113.52. This conclusion is supported by a
number of our prior cases, including Helmick v. Cincinnati Word
Processing, Inc. (1989), 45 Ohio St.3d 131, 543 N.E.2d 1212;
Kerans v. Porter Paint Co. (1991), 61 Ohio St.3d 486, 575 N.E.2d
428; and Collins, supra, 73 Ohio St.3d 65, 652 N.E.2d 653.

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78 Ohio St.3d 134, 677 N.E.2d 308 i

In Helmick, at 133-135, 543 N.E.2d at 1215-1216, this
court determined that the provisions of R.C. Chapter 4112
prohibiting employment discrimination based on sex did **325 not
preempt common-law intentional tort claims arising out of acts of
sexual discrimination in the workplace. We reached this conclusion
even though the statutory scheme provided specific remedies for the
victims of the sex discrimination. We noted that the relief available
under the statutory scheme did not parallel the damages available
in a common-law tort action. Id. We held that “[ajllowing a
plaintiff to pursue common-law remedies in lieu of the relief
provided under R.C. Chapter 4112 creates no conflict and serves
to supplement the limited protection and coverage of that chapter.”
Id. at paragraph two of the syllabus.

Similarly, in Kerans, supra, 61 Ohio St.3d 486, 575
N.E.2d 428, paragraph one of the syllabus, we held that “[t}he
workers’ compensation statute does not provide the exclusive
remedy for claims based upon sexual harassment in the
workplace.” We reached this conclusion, since the relief available
under the statute would be insufficient to remedy the damages
actually suffered by the victim. Id. at 489, 575 N.E.2d at 431.

Recently, in Collins, supra, 73 Ohio St.3d 65, 652 N.E.2d
653, we recognized the right of an employee to maintain a Greeley
claim based upon sexual harassment/discrimination in the
workplace. We did so despite the fact that the employee in Collins
was discriminated against in violation of the public policy embodied
in R.C. Chapter 4112, which sets forth specific remedies for
victims of sexual harassment/discrimination in the workplace. We
note, however, that the employee in Collins was unable to avail
herself of the remedies set forth in R.C. Chapter 4112 because her
employer never employed four or more people and, thus, did not
come within the scope of R.C. Chapter 4112. Id. at 74, 652
N.E.2d at 660.

*157 It is clear from the reasoning of Helmick, Kerans, and
perhaps even Collins, supra, that R.C. 4113.52 does not provide
the exclusive remedy for at-will employees who are discharged or

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78 Ohio St.3d 134, 677 N.E.2d 308

disciplined for a reason prohibited by the public policy embodied
in that statute. The remedies available pursuant to R.C. 4113.52
are not sufficient to provide the complete relief that would
otherwise be available in a Greeley-based cause of action for the
tort of wrongful discharge. The statute does not provide for certain
compensatory damages and does not specifically authorize recovery
of punitive damages. Most important, the statute permits the court
to fashion an award based upon whatever the court deems to be
appropriate. See R.C. 4113.52(E). Clearly, the relief available to
a whistleblower under a’statutory cause of action comes nowhere
near the complete relief available in an action based upon the
Greeley public-policy exception to the doctrine of employment at
will. In our judgment, the relief available in an action for the tort
of wrongful discharge merely complements the limited statutory
relief available pursuant to R.C. 4113.52. Thus, we find that the
mere existence of statutory remedies for violations of R.C. 4113.52
does not operate as a bar to alternative common-law remedies for
wrongful discharge in violation of the public policy embodied in the
Whistleblower Statute.

Appellees note, however, that there was no cause of action in Ohio
for an employee who was discharged or disciplined for
whistleblowing prior to the enactment of R.C. 4113.52. Indeed, in
1986, in Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 23
OBR 260, 491 N.E.2d 1114, paragraphs one and two of the
syllabus, a majority (5-2) of this court held that public policy does
not require an exception to the employment at-will doctrine when
an employee is discharged for reporting to his employer that it is
conducting its business in violation of law, and that an at-will
employee who is discharged for reporting such matters has no
common-law cause of action for wrongful discharge. In 1988, the
General Assembly enacted the first version of Ohio’s Whistleblower
Statute (142 Ohio Laws, Part II, 3590-3593) in apparent response
to Phung. In enacting the current and former versions of R.C.
4113.52 (which are virtually identical), the General Assembly set
forth the procedure a whistleblower must follow to gain statutory

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78 Ohio St.3d 134, 677 N.E.2d 308

protection and also set forth limited statutory remedies for
violations of the statute. The history of former R.C. 4113.52
reveals that the General Assembly had considered making a broader
range of civil remedies available to qualified whistleblowers, but
rejected that notion in faver **326 of the more limited list of
remedies set forth in both the current and former versions of R.C.
4113.52(E). See, generally, Trader v. People Working
Cooperatively, Inc. (1996), 74 Ohio St.3d 1286, 1286-1289, 660
N.E.2d 737, 737-739 (Wright, J., dissenting)(discussing *158 the
legislative history of R.C. 4113.52). [FN5] Appellees urge that this
history of R.C. 4113.52 and the fact that the statute sets forth a
“new” right of action and a list of available remedies clearly
demonstrate that it was the express will of the General Assembly in
enacting R.C. 4113.52

to set forth the exclusive remedies for whistleblowers and to
preempt any possible common-law remedies for retaliatory
discharges based on whistleblowing. Again, we disagree.

FNS. It should be noted that the history of former R.C.
4113.52 discussed in the dissent in Trader v. People Working
Cooperatively, Inc. (1996), 74 Ohio St.3d 1286, 1286-1289, 660
N.E.2d 737, 737-7390 (Wright, J., dissenting), appears to be
inaccurate. The Trader dissent relied on Rheinecker v. Forest
Laboratories (S.D. Ohio 1993), 826 F.Supp. 256, 258, fn. 2, as
providing an accurate account of the legislative proceedings on
Sub.H.B. No. 406. But the Trader dissent failed to recognize that
Statements made in footnote 2 of Rheinecker, supra, were
apparently inaccurate and were subsequently modified by-corrective
order in Rheinecker v. Forest Laboratories, Inc. (S.D.Ohio 1994),
855 F.Supp. 913. However, a review of the materials submitted in
the case at bar concerning the history of former R.C. 4113.52
Clearly reveals that the General Assembly did, in fact, consider
making a broader range of remedies available to qualifying
whistleblowers, but later rejected that notion in favor of the more
limited remedies set forth in the current and former versions of
R.C. 4113.52(E).

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78 Ohio St.3d 134, 677 N.E.2d 308

As indicated immediately above, the legislative history of
R.C. 4113.52 clearly reveals that the General Assembly considered
and rejected the notion of providing a wider range of statutory civil
remedies for qualifying whistleblowers who are discharged or
disciplined in violation of the statute. However, this fact alone
does not answer the question whether the remedies set forth in R.C.
4113.52 are intended to be exclusive. Nor is the fact that the
legislature enacted R.C. 4113.52 in apparent response to Phung a
persuasive reason to hold that the statute preempts the formation or
recognition of an independent cause of action in tort under Greeley
and its progeny for wrongful discharge in violation of public
policy. Indeed, we find nothing in R.C. 4113.52 or its history that
compels the conclusion that it was the express will of the General
Assembly that any and all causes of action premised on
whistleblowing must be commenced and remedied exclusively
under R.C. 4113.52. Rather, on the basis of the information
available, it is much more reasonable to conclude that the General
Assembly enacted R.C. 4113.52 to remedy the defect in the law
caused by this court’s decision in Phung, but never intended to
preclude the future development of the common law of this state in
the area of “whistleblowing.”

Furthermore, if the General Assembly had truly intended
to make R.C. 4113.52 the sole and exclusive remedy for
whistleblowers, it certainly knew how to do so. R.C. 4113.52 was
presumably patterned after R.C. 124.341, Ohio’s whistleblower
protection statute pertaining to state employees. R.C. 124.341 was
specifically considered by the General Assembly when it enacted
R.C. 4113.52. This is convincingly demonstrated by the fact that
R.C. 4113.52(D) specifically refers to R.C. 124.341. Additionally,
the two statutes are similar in many respects. *159 However, R.C.
124.341(D), unlike any provision of R.C. 4113.52, expressly states
that the remedy set forth in the statute is the “sole and exclusive
remedy” available for a qualifying whistleblower. R.C.
124.341(D) provides: “If an appointing authority takes any
disciplinary or retaliatory action against a classified or unclassified

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78 Ohio St.3d 134, 677 N.E.2d 308

employee as a result of the employee’s having filed a report under
division (A) of this section, the employee’s sole and exclusive
remedy, notwithstanding any other provision of law, is to file an
appeal with the state personnel board of review * * * *.” (Emphasis
added.) The absence of such language in R.C. 4113.52 can hardly
be characterized as a mistake or oversight. Therefore, we presume
that it was not the intent of the General Assembly in enacting R.C.
4113.52 to set forth the sole and exclusive remedies for
whistleblowers or to preempt alternative common-law remedies for
retaliatory discharges based on whistleblowing.

**327 There are a numbe: of Ohio appellate and federal
district court cases which have held that it was the express will of
the General Assembly in enacting R.C. 4113.52 to set forth the
exclusive remedies for whistleblowers and that R.C. 4113.52
preempts any possible common-law remedies for retaliatory
discharges based on whistleblowing. See, e.g., Bear v. Geetronics,
Inc. (1992), 83 Ohio App.3d 163, 168-169, 614 N.E.2d 803, 807;
Murray v. Clinton Petroleum Co. (July 16, 1993), Portage App.
No. 92-P-0086, unreported, 1993 W1 268459; Rayel v. Wackenhut
Corp. (June 8, 1995), Cuyahoga App. No. 67459, unreported,
1995 WL 350077; Ungrady v. Burns Internati. Sec. Serv., Inc.
(N.D.Ohio 1991), 767 F.Supp. 849, 852-853; and Rheinecker v.
Forest Laboratories, Inc. (S.D.Ohio 1993), 813 F.Supp. 1307,
1312-1314, reconsideration denied (1993), 826 F.Supp. 256. A
synopsis of the view that R.C. 4113.52 represents the sole and
exclusive remedy for whistleblowers--a view adopted by the trial
court and court of appeals in the case at bar--was set forth in a
dissenting opinion to this court’s order dismissing the case of
Trader, supra, 74 Ohio St.3d 1286, 1286-1289, 660 N.E.2d 737,
737-739 (Wright, J., dissenting). However, the views expressed in
the Trader dissent and the rationale supporting those views are
wholly inconsistent with the conclusions we reach here today that
R.C. 4113.52 has no preclusive effect on appellant’s Greeley claim
for tortious wrongful discharge in violation of public policy. In our
discussion, supra, we have generally addressed and rejected many

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78 Ohio St.3d 134, 677 N.E.2d 308

of the major points made in the Trader dissent, but there remains
one particular aspect of that dissent we feel compelled to address
specifically.

In his dissent in Trader, Justice Wright (now retired from
the bench) was joined by two current members of this court in
stating that “[w]Jhere a statute such as [R.C. 4113.52] creates a
right that was not actionable at common law, the remedy prescribed
is exclusive.” Id. at 1287, 660 N.E.2d at 737. To support this
proposition, the dissent in Trader cited Franklin Cty. Law
Enforcement Assn. V. Fraternal Order of Police (1991), 59 Ohio
St.3d 167, 169, 572 N.E.2d 87, 89, *160 wherein this court quoted
Zanesville v. Fannan (1895), 53 Ohio St. 605, 42 N.E. 703,
paragraph two of the syllabus. Trader at 1287, 660 N.E.2d at 737.
In Zanesville, paragraph two of the syllabus, this court held:
“Where a statute which creates a new right, prescribes the remedy
for its violation, the remedy is exclusive; but when a new remedy
is given by statute fora right of action existing independent of it,
without excluding other remedies already known to the law, the
statutory remedy is cumulative merely, and the party may pursue
either at his option.” The principle of law set forth in Zanesville
that where a statute creates a new right and prescribes the remedy
for its violation, the remedy is exclusive, was derived from the case
of Dunn v. Kanmacher (1875), 26 Ohio St. 497. See Zanesville,
supra, 53 Ohio St. at 620, 42 N.E. at 706. In Dunn, supra, 26
Ohio St. at 504, the true principle of law is established that “where
a statute gives a new right, and also prescribes the remedy for its
violation, the remedy so prescribed must be taken as exclusive,
unless it appears from the statute that the legislature intended
otherwise.” (Emphasis added.) Therefore, the intent of the
legislature is the determining factor whether the remedies
prescribed by R.C. 4113.52 are exclusive. As we stated in our
discussion, supra, the history and language of R.C. 4113.52 move
us to conclude that the General Assembly did not intend for the
remedies prescribed by R.C. 4113.52 to be exclusive.

In his dissent in Trader, 74 Ohio St.3d at 1287, 660 N.E.2d

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at 737-738, Justice Wright also attempted to support the above
statement that “[w]Jhere a statute such as [R.C. 4113.52] creates a
right that was not actionable at common law, the remedy prescribed
is exclusive,” by citing yet another passage from Franklin Cty. Law
Enforcement Assn., supra, 59 Ohio St.3d at 169, 572 N.E.2d at
89-90, wherein we cited the following passages in Fletcher v.
Coney Island, Inc. (1956), 165 Ohio St. 150, 154-155, 59 0.0.
212, 214, 134 N.E.2d 371, 374-375:

“Where the General Assembly by statute creates a new
right and at the same time prescribes reinedies or penalties for its
violation, the courts may not intervene and create an additional
remedy. * * *

**328 “If the General Assembly has provided a remedy for
the enforcement of a specific new right, a court may not on its own
initiative apply another remedy it deems appropriate.”

However, Fletcher, supra, involved a situation wherein this
court held, and the parties to the litigation apparently agreed, that
there would have been absolutely no cause of action or remedy for
the conduct at issue in Fletcher (exclusion of an African-American
from an amusement park) in the absence of legislation, and that any
right of action by the plaintiff was exclusively within the province
of the legislature. Id. at 153-154, 59 0.0. at 213-214, 134 N.E.2d
at 373-374. Such is clearly not the case in the area of employment
at will. See discussion infra. Moreover, unlike R.C. 4113.52, the
statutes at issue in Fletcher (former R.C. *161 2901.35 and
2901.36) contained at least some language indicating a legislative
intent to bar any further action above and beyond the remedies
provided by statute. Id. at 153-154, 59 0.0. at 213-214, 134
N.E.2d at 373-374. Indeed, in Fletcher, at paragraph two of the
syllabus, this court expressly held that the language of the statutes
at issue in that case demonstrated “a plain purpose and intent on the
part of the General Assembly to restrict the remedies or penalties
available to those expressly provided.”

It is also interesting to note that in Rheinecker, supra, 826
F.Supp. 256, 257, the federal district court relied on the case of

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Commrs. V. Bank of Findley (1877), 32 Ohio St. 194, in a manner
similar to the way the dissent in Trader indirectly relied on
Zanesville and Fletcher. In Bank of Findley, at 200-201, this court
stated: “In such case, the rule is, says Lord Mansfield, in Rex v.
Robinson, 2 Burr. 803: ‘That where a statute creates a new offense
by prohibiting and making unlawful anything which was lawful
before, and appoints a specific remedy against such new offense
(not antecedently unlawful), by a particular sanction and a
particular method of proceeding, that particular method of
proceeding must be pursued and none other.’” (Emphasis sic.)
However, in Bank of Findley, this court specifically noted that the
remedy provided by the statute at issue in that case provided more
than ample recovery for an aggrieved party and that the remedies
were “full, adequate and complete.” (Emphasis added.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1420%3A1. Public record. Not legal advice.