[Cite as Hulsmeyer v. Hospice of Southwest Ohio, Inc.,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

PATRICIA HULSMEYER, : APPEAL NO. C-120822 TRIAL NO. A-1201578 Plaintiff-Appellant, :

vs. : O P I N I O N.

HOSPICE OF SOUTHWEST OHIO, : INC., : JOSEPH KILLIAN, : and : BROOKDALE SENIOR LIVING, INC.,

Defendants-Appellees. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: September 25, 2013

Robert A. Klingler Co. L.P.A., Robert A. Klingler and Brian J. Butler, for Plaintiff- Appellant,

Dinsmore & Shohl, LLP, Michael Hawkins and Faith Isenhath, for Defendants- Appellees Hospice of Southwest Ohio, Inc., and Joseph Killian,

Tucker Ellis & West LLP, Victoria Vance and Susan M. Audey for Defendant- Appellee Brookdale Senior Living Inc.,

Michael Kirkman and Ohio Disability Rights Law and Policy Center, Inc., for Amicus Curiae Disability Rights Ohio, OHIO FIRST DISTRICT COURT OF APPEALS

AARP Foundation Litigation, Kelly Bagby, Kimberly Bernard and Alison Falb, for Amicus Curiae AARP.

Please note: this case has been removed from the accelerated calendar.

2 OHIO FIRST DISTRICT COURT OF APPEALS

Per Curiam.

{¶1} Plaintiff-appellant Patricia Hulsmeyer appeals the trial court’s judgment

dismissing her claims for retaliation under R.C. 3721.24 and for wrongful discharge in

violation of public policy against defendants-appellees, her former employer, Hospice of

Southwest Ohio, Inc. (“Hospice”), its CEO, Joseph Killian, and Brookdale Senior Living,

Inc. (“Brookdale”), a corporation that operated a long term and residential care facility

where Hospice provided services.

{¶2} Because Hulsmeyer need not report suspected abuse or neglect of a

nursing home resident to the Ohio Director of Health to state a claim for retaliation

under R.C. 3721.24, we reverse that part of the trial court’s judgment dismissing her

retaliation claim under R.C. 3721.24 against Hospice, Killian, and Brookdale. We, affirm

however, the dismissal of her claim against Hospice for wrongful discharge in violation

of public policy because R.C. 3721.24 provides Hulsmeyer with an adequate remedy.

Hulsmeyer’s Complaint

{¶3} Hulsmeyer is a registered nurse. She formerly served as a team manager

for Hospice. Her duties included overseeing the care of Hospice’s patients who resided

at one of Brookdale’s facilities in Cincinnati, and supervising other Hospice nurses who

provided care to those residents. On October 19, 2011, during a patient care meeting of

Hospice employees in which Hulsmeyer participated, a Hospice nurse indicated that one

of Hospice’s patients at Brookdale had suffered some bruising, which she feared was the

result of abuse or neglect at the hands of Brookdale staff. A second Hospice employee,

an aide, had taken photographs of the injuries at the patient’s request, which she showed

to those in attendance. Three Hospice employees, who were present at the meeting,

informed Hulsmeyer that she was obligated to call Brookdale and the patient’s family

immediately to report the suspected abuse or neglect.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} Hulsmeyer immediately called the Director of Nursing at Brookdale,

Cynthia Spaunagle, to report her suspicions of abuse or neglect. Spaunagle said that she

would take all appropriate measures, including contacting the patient’s daughter after

ordering an examination of the injuries. Hulsmeyer then reported the suspected abuse

to her own supervisor, Hospice’s Chief Clinical Officer, Isha Abdullah, but Abdullah did

not appear to take the report seriously. Finally, Hulsmeyer called the patient’s daughter,

who was also the patient’s power of attorney, reported the suspected abuse, and

informed her that Spaunagle would be contacting her. The following day Hulsmeyer

submitted a written report to Abdullah concerning the suspected abuse or neglect of the

patient.

{¶5} On October 24, 2011, the patient’s daughter contacted Hulsmeyer and

left a voice message stating that Spaunagle had not yet contacted her. Later that same

day, the patient’s daughter contacted Hulsmeyer and informed her that she had called

Ida Hecht, the Executive Director of Brookdale, seeking information about her mother’s

injuries. Hecht had not heard about the injuries or Hulsmeyer’s suspicions of abuse or

neglect, but she told the patient’s daughter that she would look into the matter. On

November 4, 2011, a meeting was held at Brookdale to discuss the patient’s care.

Numerous Brookdale and Hospice employees were present, including Hulsmeyer, as

well as the patient’s son and daughter.

{¶6} On November 11, 2011, Hulsmeyer began a planned leave of absence to

undergo a medical procedure and was not to return to work until November 28, 2011.

During Hulsmeyer’s leave of absence, Jackie Lippert, Regional Health and Wellness

Director for Brookdale, contacted Hospice and demanded to know who had informed

the patient’s daughter of the suspected abuse or neglect. During the telephone call, Ms.

4 OHIO FIRST DISTRICT COURT OF APPEALS

Lippert stated, “We got rid of our problem [Spaunagle], what are you going to do?”

Brookdale had terminated Spaunagle.

{¶7} On November 28, 2011, Hulsmeyer’s first day back at work following her

leave of absence, Abdullah asked Hulsmeyer to join her in her office. Betty Barnett,

Hospice’s COO and Director of Human Resources, was also in Abdullah’s office. They

explained to Hulsmeyer that they all had to call Lippert. Lippert was irate. She stated

that the patient’s daughter had told her that she would not recommend Brookdale to

anyone. She accused Hulsmeyer of making Brookdale “look bad” and “stirring up

problems.” After Barnett asked what should have been done differently, Lippert

snapped, “The family should not have been called and the photographs should not have

been taken.” Finally, Lippert threatened that Brookdale would cease recommending

Hospice to its residents.

{¶8} Two days later, Barnett called Hulsmeyer into her office and informed

her that she would be terminated. Taken aback by the termination, Hulsmeyer

attempted to meet with Killian, but Barnett informed Hulsmeyer that Killian had

instructed Barnett to “cut ties” with Hulsmeyer and that he “[didn’t] want to be

associated with her” because he “[didn’t] have time.”

{¶9} On November 30, 2011, in a letter signed by Killian and Abdullah,

Hospice informed Hulsmeyer that she was terminated. In the letter, Hospice stated

that Hulsmeyer had not timely notified Hospice’s “Management” about the suspected

abuse, criticized her for notifying the patient’s daughter about the suspected abuse, and

claimed Hospice’s “upper management” had not learned about the suspected abuse until

Lippert had contacted Abdullah, sometime after November 11, 2011. The termination

letter also specifically identified the fact that Hulsmeyer had contacted the patient’s

daughter as justification for her termination.

5 OHIO FIRST DISTRICT COURT OF APPEALS

{¶10} On February 28, 2012, Hulsmeyer filed suit against Brookdale, Hospice,

and Killian. She alleged that Brookdale, Hospice, and Killian had wrongfully

terminated her employment in violation of R.C. 3721.24 for reporting suspected abuse

and neglect of a nursing home resident. She also asserted a claim against Hospice for

wrongful discharge in violation of public policy and a claim against Brookdale for

tortious interference with a business relationship. Hospice, Killian, and Brookdale

moved pursuant to Civ.R. 12(B)(6) to dismiss all of Hulsmeyer’s claims against them.

The trial court dismissed all of Hulsmeyer’s claims without prejudice except her claim

for tortious interference with a business relationship against Brookdale. After

conducting limited discovery, Hulsmeyer dismissed with prejudice her remaining claim

against Brookdale to pursue this appeal.

Jurisdiction

{¶11} Brookdale argues that this court lacks jurisdiction over Hulsmeyer’s

appeal. It asserts that Hulsmeyer is not appealing from a final appealable order because

the trial court dismissed her public policy and retaliation claims without prejudice. See

Civ.R. 41(B)(3); see also Natl. City Commercial Capital Corp. v. AAAA at Your Serv.,

Inc.,

,

,

, ¶ 8. An order granting a

motion to dismiss for failure to state a claim, however, even if expressly dismissed

without prejudice, may be final and appealable if the plaintiff cannot plead the claims

any differently to state a claim for relief. See George v. State, 10th Dist. Franklin Nos.

10AP-4 and 10AP-97,

, ¶ 13, citing Fletcher v. Univ. Hosps. of

Cleveland,

,

,

. Here, the trial

court’s dismissal of Hulsmeyer’s public policy and retaliation claims was based upon its

conclusion that they failed as a matter of law.

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶12} The trial court held that Hulsmeyer could not state a claim for retaliation

because R.C. 3721.24 protects a nursing home employee from retaliation only for

reporting or intending to report suspected abuse or neglect of a resident to the Ohio

Director of Health and that Hulsmeyer had failed to allege that she had reported or

intended to report the suspected abuse and neglect to the Ohio Director of Health. It

further held that Ohio public policy would not be jeopardized if nursing home employees

are terminated for reporting abuse or neglect because R.C. 3721.24 affords them an

adequate remedy.

{¶13} Notwithstanding the trial court’s notation that it was dismissing the

claims without prejudice, no further allegations or statements of facts consistent with

the pleadings could cure the defect to these claims. Unless Hulsmeyer were to have

disavowed her prior statement that she had not made a report to the Ohio Director of

Health, which would have been inconsistent with the allegations in her present

complaint, the trial court’s conclusion with respect to her retaliation claim would have

been unalterable. Similarly, even if Hulsmeyer were to change the facts of her

complaint, her public policy claim would still fail as a matter of law based upon the trial

court’s conclusion that she could not satisfy the jeopardy element of the claim because

R.C. 3721.24 had provided her with an adequate remedy. Because there would be no

possible factual scenario under which she could state a claim for retaliation in violation

of R.C. 3721.24 and for wrongful discharge in violation of public policy, the trial court’s

dismissal of her claims was in fact an adjudication of the merits of those claims. See

State ex rel. Arcadia Acres v. Ohio Dept. of Job & Family Servs.,

,

,

. We, therefore, conclude that we have jurisdiction

to entertain her appeal.

7 OHIO FIRST DISTRICT COURT OF APPEALS

Standard of Review

{¶14} In two assignments of error, Hulsmeyer argues that the trial court

erred in dismissing her retaliation and public policy claims for failure to state a claim

under Civ.R. 12(B)(6). We review dismissals by the trial court under Civ.R. 12(B)(6)

under a de novo standard of review. Perrysburg Twp. v. Rossford,

,

,

, ¶ 5. In determining the appropriateness of a

dismissal, we, like the trial court, are constrained to take the allegations in the

complaint as true, drawing all reasonable inferences in the plaintiff’s favor, and then

to decide if the plaintiff has stated any basis for relief. Mitchell v. Lawson Milk Co.,

,

(1988). A dismissal should be granted only if

the plaintiff can plead no set of facts that would entitle it to relief. O’Brien v. Univ.

Community Tenants Union, Inc.,

,

(1975), syllabus.

Retaliation Claim under R.C. 3721.24

{¶15} In her first assignment of error, Hulsmeyer argues the trial court

erred in dismissing her claim for retaliation under R.C. 3721.24.

{¶16} The trial court held that R.C. 3721.24 only protects employees from

retaliation who report or intend to report abuse or neglect to the Ohio Director of

Health. Because Hulsmeyer had not alleged that she had reported or intended to

report the suspected abuse to the Director of Health, she could not state a claim for

relief under R.C. 3721.24. In reaching this conclusion, the trial court relied upon the

Eighth Appellate District’s decision in Arsham-Brenner v. Grande Point Health Care

Comm., 8th Dist. Cuyahoga No. 74835,

(July 13, 2000),

and an unreported opinion from the Sixth Circuit, Davis v. Marriott Internatl., Inc.,

6th Cir. No. 04-4156,

(Oct. 4, 2005), which had

followed Arsham-Brenner.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶17} In Arsham-Brenner, the Eighth District held that the protections

of R.C. 3721.24 apply only when an employer learns that an individual has reported

abuse or neglect to the Ohio Director of Health, and thereafter retaliates against that

individual for making such a report to the agency. Arshem-Brenner at *21. The court

reached this conclusion by reading R.C. 3721.24 together with R.C. 3721.22 and

3721.23. The court noted that “[u]nder R.C. 3721.22(A), a licensed health

professional is obligated to report suspected abuse or neglect ‘to the director of

health.’ Sections B and C describe voluntary reporting to the ‘director of health.’ The

intervening statute, R.C. 3721.23, refers to the duties of the director of health to

investigate allegations.” The court noted that by “[r]eading these statutes together,

we believe that R.C. 3721.24 forbids retaliation for reports, whether obligatory or

voluntary, made only to the director of health pursuant to R.C. 3721.22. Any reports

to others, such as to appellant’s employer, of suspected resident abuse or neglect, do

not qualify for protection under R.C. 3721.24(A).”

{¶18} Similarly, in Davis v. Marriott Internatl., Inc., the Sixth Circuit

rejected an employee’s claim that a report of suspected abuse to her supervisors

satisfied R.C. 3721.24. It stated that the Eighth District’s interpretation of the statute

in Arsham-Brenner was far from unreasonable, given that the Ohio Supreme Court

had held that “ ‘all statutes which relate to the same general subject matter must be

read in pari materia’ ” and that it “ha[d] previously construed whistleblower statutes

narrowly.” Davis at *8, quoting Carnes v. Kemp,

, 2004-Ohio-

7107,

, and citing Kulch v. Structural Fibers, Inc.,

,

(1997). As a result, the Sixth Circuit followed Arsham-Brenner,

read the statutes together, and held that the employee’s complaint had failed to state

9 OHIO FIRST DISTRICT COURT OF APPEALS

a claim for retaliatory discharge under R.C. 3721.24 because she had not alleged that

she had made or intended to make a report to the director of health. Davis at *9.

{¶19} Hulsmeyer argues that the trial court, as well as the Arsham-

Brenner and Davis courts, erred by reading R.C. 3721.24 in pari materia with R.C.

3721.22 and 3721.23. She argues that under the rules of statutory construction, a

court must first look to the language of the statute, itself, and because R.C. 3721.24 is

unambiguous, there is no need to look to R.C. 3721.22 or 3721.23 to interpret R.C.

3721.24. Hospice, Killian, and Brookdale, argue, on the other hand, that this court

should follow the interpretation of R.C. 3721.24 set forth in Arsham-Brenner and

Davis. They argue that because R.C. 3721.22 and 3721.24 relate to the same subject

matter―reporting resident abuse and neglect―that they must be construed together

and be read in pari materia.

{¶20} The interpretation of a statute is a matter of law that an appellate

court reviews under a de novo standard of review. Akron Centre Plaza, L.L.C. v.

Summit Cty. Bd. of Revision,

,

,

. The Ohio Supreme Court has held that in interpreting a statute, a court must

first look to the language of the statute itself. See Spencer v. Freight Handlers, Inc.,

,

,

, ¶ 16. Words used in a statute

must be read in context and accorded their normal, usual, and customary meaning.

R.C. 1.42. If the words in a statute are “free from ambiguity and doubt, and express

plainly, clearly and distinctly, the sense of the law-making body, there is no occasion

to resort to other means of interpretation.” State v. Hairston,

,

,

, ¶ 12 quoting Slingluff v. Weaver,

,

(1902), paragraph two of the syllabus. “An unambiguous statute is to be

10 OHIO FIRST DISTRICT COURT OF APPEALS

applied, not interpreted.” Sears v. Weimer,

,

(1944),

paragraph five of the syllabus.

{¶21} “It is only where the words of a statute are ambiguous, are based

upon an uncertain meaning, or, if there is an apparent conflict of some provisions,

that a court has the right to interpret a statute.” Brooks v. Ohio State Univ.,

,

(10th Dist. 1996). A statute is ambiguous where its

language is susceptible of more than one reasonable interpretation. In re Baby Boy

Brooks,

,

(10th Dist. 2000). “ ‘When a

statute is subject to more than one interpretation, courts seek to interpret the

statutory provision in a manner that most readily furthers the legislative purpose as

reflected in the wording used in the legislation.’ ” AT&T Communications of Ohio,

Inc. v. Lynch,

,

,

, ¶ 18, quoting

State ex rel. Toledo Edison Co. v. Clyde,

,

,

(1996). In interpreting an ambiguous statute, a court may inquire into the legislative

intent behind the statute, its legislative history, public policy, laws on the same or

similar subjects, the consequences of a particular interpretation, or any other factor

identified in R.C. 1.49. See Toledo Edison, 76 Ohio St.3d at 513-514,

.

Furthermore, when interpreting a statute, courts must avoid unreasonable or absurd

results. State ex rel. Asti v. Ohio Dept. of Youth Servs.,

, 2005-

Ohio-6432,

, ¶ 28.

{¶22} R.C. 3721.24 provides in pertinent part:

(A) No person or government entity shall retaliate against an

employee or another individual used by the person or government

entity to perform any work or services who, in good faith, makes a

report of suspected abuse or neglect of a resident or

11 OHIO FIRST DISTRICT COURT OF APPEALS

misappropriation of the property of a resident; indicates an

intention to make such a report; provides information during an

investigation of suspected abuse, neglect, or misappropriation

conducted by the director of health; or participates in a hearing

conducted under section 3721.23 of the Revised Code or in any

other administrative or judicial proceedings pertaining to the

suspected abuse, neglect, or misappropriation. For purposes of

this division, retaliatory actions include discharging, demoting, or

transferring the employee or other person, preparing a negative

work performance evaluation of the employee or other person,

reducing the benefits, pay, or work privileges of the employee or

other person, and any other action intended to retaliate against the

employee or other person.

{¶23} After reading the statute, we agree with Hulsmeyer that the plain

language of R.C. 3721.24(A) forbids retaliation “against an employee or another

individual used by the person or government entity to perform any work or services

who, in good faith, makes or indicates an intention to make a report of suspected

abuse or neglect of a resident * * *.” The statute provides protection for any reports

of suspected abuse and neglect that are made or intended to be made, not just those

reports that are made or intended to be made to the Director of Health.

{¶24} Had the legislature meant to limit the protection afforded to only

reports of suspected abuse or neglect made to the Director of Health, it could have

easily done so by either directly inserting the words “to the Director of Health” after

the word “report,” by referencing R.C. 3721.22 in conjunction with report, or by

referring to the report made as one specified under R.C. Chapter 3721. The

12 OHIO FIRST DISTRICT COURT OF APPEALS

legislature, however, did not employ these words and we may not add them to the

statute. See State v. Taniguchi,

,

(1995)

(holding that “a court should give effect to the words actually employed in a statute

and should not delete words used, or insert words not used, in the guise of

interpreting the statute.”); see also Wachendorf v. Shaver,

,

(1948).

{¶25} Because the statute is unambiguous and does not limit reports of

suspected abuse or neglect to only those reports made or intended to be made to the

Director of Health, we need not look to R.C. 3721.22 and 3721.23 for assistance in

interpreting the statute. See State ex rel. Hermann v. Klopfleisch,

,

(1995) (the in pari materia rule may only be used in interpreting

statutes where some doubt or ambiguity exists). Because Hulsmeyer need not report

suspected abuse or neglect of a nursing home resident to the Ohio Director of Health to

state a claim for retaliation under R.C. 3721.24, the trial court erred in dismissing her

retaliation claim under R.C. 3721.24 against Hospice, Killian, and Brookdale on this

basis.

{¶26} Brookdale additionally argues that Hulsmeyer’s retaliation claim

fails as a matter of law because Hulsmeyer has failed to allege that she was “used by”

Brookdale to perform any work or services. R.C. 3721.24 provides a cause of action

for an “employee or another individual used by the person or government entity to

perform any work or services” who is terminated for reporting suspected abuse and

neglect. After reviewing the allegations in her complaint, however, we find that

Hulsmeyer has alleged sufficient facts to withstand Brookdale's motion to dismiss.

Hulsmeyer alleged that Brookdale used Hospice nurses in conjunction with its own

staff to provide patient care at its long-term care facility in several ways.

13 OHIO FIRST DISTRICT COURT OF APPEALS

{¶27} First, she alleged that she was used by Brookdale to oversee the

care for certain residents and to monitor the care of other nurses providing care for

those residents. She further alleged that she also attended a meeting at Brookdale’s

facility to consult with Brookdale’s staff and the patient’s family to ensure the patient

was receiving proper care. These facts were sufficient to withstand Brookdale’s

motion to dismiss.

{¶28} Because R.C. 3721.24 does not limit reports of suspected abuse and

neglect to only those reports made to the Ohio Director of Health, and because

Hulsmeyer has pleaded sufficient facts to state a claim against Hospice, Killian, and

Brookdale, we sustain her first assignment of error.

Public Policy Claim

{¶29} In her second assignment of error, Hulsmeyer argues that the trial

court erred in dismissing her claim for wrongful discharge in violation of public

policy against Hospice on the basis that she had an adequate remedy available

pursuant to R.C. 3721.24 and thus, could not meet the jeopardy element of her claim.

{¶30} In order to state a claim for wrongful discharge in violation of

public policy, a plaintiff must show:

(1) That a clear public policy existed and was manifested in a

state or federal constitution, statute or administrative

regulation, or in the common law (the clarity element); (2) That

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); and (4) The employer lacked overriding legitimate

14 OHIO FIRST DISTRICT COURT OF APPEALS

business justification for the dismissal (the overriding

justification element).

Collins v. Rizkana,

,

(1995). The first two

elements―the clarity element and the jeopardy element―are questions of law to be

determined by the court, while the third and fourth elements―the causation element

and the overriding business justification element―are questions of fact for the trier

of fact.

{¶31} In Dolan v. St. Mary’s Home,

, 2003-Ohio-

3383,

(1st Dist.) this court followed the Ohio Supreme Court’s

decision in Wiles v. Medina Auto Parts,

,

,

. We held that because the remedies provided by R.C. 3721.24 were

sufficient to vindicate the “public policy embodied in R.C. Chapter 3721 of protecting

the rights of nursing-home residents and of others who would report violations of

those rights,” the public policy expressed in R.C. Chapter 3721 would not be

jeopardized by the lack of a common-law public-policy claim. Id. at ¶ 17. Because

Hulsmeyer has a remedy by way of a claim for retaliation under R.C. 3721.24, the

trial court properly dismissed her claim for wrongful discharge in violation of public

policy. We, therefore, overrule her second assignment of error.

Conclusion

{¶32} In conclusion, we affirm the portion of the trial court’s judgment

dismissing Hulsmeyer’s public policy claim, but we reverse that portion of its

judgment dismissing Hulsmeyer’s claim for retaliation under R.C. 3721.24. We,

therefore, remand this cause for further proceedings consistent with this opinion and

the law. We recognize that our resolution of Hulsmeyer’s first assignment of error

conflicts with the Eighth District Court of Appeals in Arsham-Brenner v. Grande

15 OHIO FIRST DISTRICT COURT OF APPEALS

Point Health Care, 8th Dist. Cuyahoga No. 74835,

(July

31, 2000). We, therefore, certify to the Supreme Court of Ohio, pursuant to Section

3(B)(4), Article IV, Ohio Constitution, the following issue for review and final

determination: “Must an employee or another individual used by the person or

government entity to perform any work or services make a report or indicate an

intention to report suspected abuse or neglect of a nursing home resident to the Ohio

Director of Health to state a claim for retaliation under R.C. 3721.24(A)?”

Judgment affirmed in part, reversed in part, and cause remanded.

HENDON, P.J., CUNNINGHAM and FISCHER, JJ., concur.

Please note: The court has recorded its own entry this date.

16