[Cite as Lee v. Cardington,

.]

COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT

DONALD LEE JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellant Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 12CA0017 VILLAGE OF CARDINGTON, OHIO

Defendant-Appellee OPINION

CHARACTER OF PROCEEDING: Appeal from the Morrow County Common Pleas Court, Case No. 2009 CV 00469

JUDGMENT: Affirmed in part; Reversed in part; and Remanded

DATE OF JUDGMENT ENTRY: July 15, 2013

APPEARANCES:

For Defendant-Appellee For Plaintiff-Appellant

JOHN D. LATCHNEY D. WESLEY NEWHOUSE Tomino & Latchney, LLC, LPA MICHAEL S. KOLMAN 803 E. Washington Street, Suite 200 Newhouse, Prophater, Letcher & Medina, OH 44256 Moots, LLC 5025 Arlington Centre Blvd., Suite 400 Columbus, OH 43220 Morrow County, Case No. 12CA0017 2

Hoffman, P.J.

{¶1} Plaintiff-appellant Donald Lee appeals the October 1, 2012 Judgment

Entry entered by the Morrow County Court of Common Pleas granting summary

judgment in favor of Defendant-appellee the Village of Cardington, Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant was employed as the Crew Chief for the Village of Cardington

Waste Water Treatment Plant (WWTP) from 2000, until his termination in 2009. His

duties included supervision and oversight of street maintenance work, sewer

maintenance work, and the operation of the water treatment plant and waste water

treatment plant. Appellant also served as a Township Trustee for Cardington Township.

His duties included supervision of the licensed operator of the waste water treatment

plant.

{¶3} Cardington Yutaka Technologies ("CYT") is a manufacturer of car parts,

and the Village’s largest employer.

{¶4} WWTP uses two waste water pump stations to lift raw sewage from the

Village’s water supply. Bacteria in the pumps digest the solids in the effluent.

Operators sample the effluent and decide how long the material stays in tank one

before moving to tank two. Once the effluent is pumped into tank two, the bacterium

continues to digest and break down the solids. The effluent is sampled and then

pumped into tank three where the bacterium continues to break down the solids. When

the process in tank three is completed the effluent is pumped on to clarifiers. In the

clarifiers, the heavier particles drop to the bottom of the tank, and the process continues

in the digester where a bacterium continues to clean the water of harmful materials. Morrow County, Case No. 12CA0017 3

The clear fluid is removed from the tanks and is recycled through the plant. The dry

material is known as sludge and is shoveled out to a storage area.

{¶5} WWTP began to experience a problem with the bacteria used to treat the

raw sewage, including frothing and foaming. Testing determined CYT was releasing a

toxic substance into the wastewater known as glycol at the time of the plant shutdowns.

The toxic substance problem occurred twice a year and coincided with the shut downs

of CYT. Testing determined the sludge produced at the WWTP was also contaminated.

{¶6} Appellant had a permit with WWTP and the Ohio EPA to use the sludge

produced at the WWTP on his farm as fertilizer. However, due to the release of the

glycol chemical into the water by CYT, he would no longer use the sludge. Ultimately

the sludge was taken to a landfill.

{¶7} On September 15, 2008, Appellant attended the Village Council meeting

to inform the Council of the glycol entering the WTTP pump and other problems. He

informed the council the Village had a material coming into the plant killing the bacteria,

and as a result, toxic water was potentially being sent down stream. He informed

council this was an EPA violation, and the contaminant was causing deterioration in the

propellers of the pumps. He informed council the chemical was killing WWTP bacteria

necessary in water treatment, and as a result was sending toxic water downstream.

{¶8} Appellant also indicated to council and his superior he did not agree with

some aspects of engineering reports and estimates to repair the WWTP. He indicated

some of the items were a waste of taxpayer money and could be accomplished more

cheaply. He questioned the practicality and expense of the repairs. Appellant further

continued to report other violations of law involving CYT to his supervisor, including use Morrow County, Case No. 12CA0017 4

of more than five percent of the total of the Village's water production. He further

informed his superior he suspected CYT was using a separate well as a source of fresh

water.

{¶9} Prior to his termination, Appellant provided a written supervisor's report to

Dan Ralley. The document set forth specific equipment failures and damage occurring

as a result of the dying bacteria caused by the glycol in the waste water. Appellant

outlined the equipment needing repair and replacement.

{¶10} On April 27, 2009, Appellant was placed on administrative leave and told

he had two weeks to resign his employment.

{¶11} Appellant filed the within action on October 16, 2009, after termination

from his position at Village WWTP, alleging violations of the Ohio's Whistleblower

statute, R.C. 4113.52(A)(1)(a) and 4113.52(A)(2), and wrongful termination in violation

of public policy due to complaints of criminal conduct which violated EPA laws. The

Village filed an answer on March 3, 2010.

{¶12} The Village filed a motion for summary judgment on June 25, 2012. The

trial court granted the motion for summary judgment and dismissed the action on

October 1, 2012 holding Appellant was not entitled to whistleblower protection because

he did not report any criminal act of an environmental nature. The court dismissed the

wrongful termination claim because Appellant did not meet the jeopardy element as the

whistleblower statute provides parallel remedies.

{¶13} Appellant now appeals, assigning as error:

{¶14} “I. THE COURT BELOW ERRED BY FINDING THAT PLAINTIFF DID

NOT STATE A WHISTLEBLOWER CLAIM PURSUANT TO ORC 4113.52(A)(1)(a) Morrow County, Case No. 12CA0017 5

BECAUSE PLAINTIFF DID NOT COMPLAIN ABOUT WHAT HE BELIEVED IN GOOD

FAITH TO BE A CRIMINAL ACT.

{¶15} “II. THE COURT BELOW ERRED BY IGNORING PLAINTIFF'S

WHISTLEBLOWER CLAIM PURSUANT TO R.C. 4113.52(A)(2) WHICH DOES NOT

REQUIRE PLAINTIFF TO FILE A REPORT WITH HIS EMPLOYER RELATED TO

ENVIRONMENTAL ILLEGAL MISCONDUCT.

{¶16} “III. THE COURT BELOW ERRED BY FINDING THAT PLAINTIFF

FAILED TO SATISFY THE JEOPARDY ELEMENT OF HIS TORT CLAIM FOR

WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY.”

I. and II.

{¶17} In the first and second assignments of error, Appellant asserts the trial

court erred in granting summary judgment finding Appellant did not state a

whistleblower claim pursuant to R.C. 4113.52(A).

{¶18} As an appellate court reviewing summary judgment issues, we must stand

in the shoes of the trial court and conduct our review on the same standard and

evidence as the trial court. Porter v. Ward, Richland App. No. 07 CA 33, 2007–

Ohio5301,

, ¶ 34, citing Smiddy v. Wedding Party, Inc. (1987),

, 30 OBR 78,

. The party moving for summary judgment

bears the initial burden of informing the trial court of the basis for its motion and

identifying those portions of the record that demonstrate the absence of a genuine issue

of material fact. The moving party may not make a conclusory assertion that the

nonmoving party has no evidence to prove its case. The moving party must specifically

point to some evidence that demonstrates that the nonmoving party cannot support its Morrow County, Case No. 12CA0017 6

claim. If the moving party satisfies this requirement, the burden shifts to the nonmoving

party to set forth specific facts demonstrating that there is a genuine issue of material

fact for trial. Vahila v. Hall (1997),

,

, citing

Dresher v. Burt (1996),

,

. A fact is material when it

affects the outcome of the suit under the applicable substantive law. See Russell v.

Interim Personnel, Inc . (1999),

,

.

{¶19} R.C. 4113.52 reads, in pertinent part,

{¶20} "(A)(1)(a) If an employee becomes aware in the course of the employee's

employment of a violation of any state or federal statute or any ordinance or regulation

of a political subdivision that the employee's employer has authority to correct, and the

employee reasonably believes that the violation 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, a felony, or an improper solicitation for a contribution, the employee orally shall

notify the employee's supervisor or other responsible officer of the employee's 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 the inspector general's jurisdiction, or with any Morrow County, Case No. 12CA0017 7

other appropriate public official or agency that has regulatory authority over the

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

{¶21} "(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.

{¶22} "(2) If an employee becomes aware in the course of the employee's

employment of a violation of chapter 3704., 3734., 6109., or 6111. of the Revised Code

that is a criminal offense, the employee directly may notify, either orally or in writing, any

appropriate public official or agency that has regulatory authority over the employer and

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

{¶23} Appellant indicated to his supervisor and to the Village Council the glycol

was not being filtered out of the water and was being returned to the creek by the

WWTP, where it would then become a hazard to the drinking water for all users situated

below the plant. He indicated the glycol was upsetting the operation of the WTTP as it

upset the bacteria balance in the plant causing the good bacteria to die and changing

the consistency of the effluent material which damaged the pumps and other

equipment. The dumping of the glycol threatened to cause the Village to violate is

permit; thereby exposing the Village and its officials to criminal liability.

{¶24} The Village's permit was governed by R.C. 3745 and 6111, specifically

provisions of R.C. 6111.60 and OAC 3745-33 and/or 3745-38. The permit specifies the Morrow County, Case No. 12CA0017 8

levels of various compounds, chemicals or elements permitted in the water and returned

to the state's water supply following treatment. If the levels are exceeded, the Village is

violating the law. R.C. 2927.24(B)(1) makes it unlawful to knowingly place a hazardous

chemical or harmful substance in a public water supply. The statute provides for

criminal penalties. Accordingly, we find Appellant complained of criminal conduct.

{¶25} The statute provides the employee "may notify, either orally or in writing,

any appropriate public official or agency." There is no requirement Appellant actually

file an additional written report with an enforcement agency in order to obtain protection

under R.C. 4113.51(A). Oral disclosures are afforded protection under the statute, and

the employer may not retaliate against the employee on account of the oral report.

{¶26} Furthermore, we find the Village has authority to correct the alleged illegal

activity of CYT, even if the Village was not directly involved in criminal activity.

{¶27} Based upon the above, we conclude, when construing the evidence most

favorably toward Appellant as required for purposes of summary judgment, the trial

court erred in granting summary judgment in favor of Appellee Village.

{¶28} The first and second assignments of error are sustained.

III.

{¶29} In the third assignment of error, Appellant maintains his public policy claim

for wrongful discharge lies in addition to his whistleblower claim. We disagree.

{¶30} In Leininger v. Pioneer National Latex,

,

,

, the Supreme Court of Ohio re-examined prior decisions involving

the jeopardy analysis for public policy wrongful discharge claims. Justice Lanzinger,

writing for the majority, stated the following at ¶ 27: Morrow County, Case No. 12CA0017 9

{¶31} “'It is clear that when a statutory scheme contains a full array of remedies,

the underlying public policy will not be jeopardized if a common-law claim for wrongful

discharge is not recognized based on that policy. The parties question what should

happen if a statutory scheme offers something less than complete relief. Appellants

urge this court to follow Wiles [v. Medina Auto Parts,

, 2002-Ohio-

3994], while appellee and her amici curiae advocate reliance on Kulch [v. Structural

Fibers, Inc. (1997),

]; both Wiles and Kulch are plurality opinions with

regard to the issue pertinent to this case. After considering our prior decisions, we

conclude that it is unnecessary to recognize a common-law claim when remedy

provisions are an essential part of the statutes upon which the plaintiff depends for the

public policy claim and when those remedies adequately protect society's interest by

discouraging the wrongful conduct.'”

{¶32} We find the remedies provided in Appellant's statutory whistleblower

claims adequately protect society's interest in discouraging the wrongful conduct at

issue.

{¶33} In Carpenter v. Bishop Well Services Corp.,

, this Court

held,

{¶34} "Appellant re-argues that the jeopardy standard as applied in Leininger

does not apply when there are multiple-source public policies involved. Although it is

true that Leininger addresses the issue of only one statute, its dicta cannot be

overlooked.

{¶35} "Here, the statutes for 'whistle blowers' offer a statutory scheme for

complete relief (R.C. 4115.35). In discussing multiple-source public policies, Justice Morrow County, Case No. 12CA0017 10

Lanzinger in Leininger at ¶ 26 noted the court's decision in Wiles v. Medina Auto Parts,

,

,

, ¶ 15:

{¶36} “'We noted that ‘[a]n analysis of the jeopardy element necessarily involves

inquiring into the existence of any alternative means of promoting the particular public

policy to be vindicated by a common-law wrongful-discharge claim.* * *Simply put, there

is no need to recognize a common-law action for wrongful discharge if there already

exists a statutory remedy that adequately protects society's interests."

{¶37} Based upon the above, Appellant's third assignment of error is overruled.

{¶38} The judgment of the Morrow County Court of Common Pleas is affirmed in

part; reversed in part; and the matter remanded for further proceedings in accordance

with the law and this opinion.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur

___________________________________ HON. WILLIAM B. HOFFMAN

___________________________________ HON. PATRICIA A. DELANEY

___________________________________ HON. CRAIG R. BALDWIN Morrow County, Case No. 12CA0017 11

IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT

DONALD LEE : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : VILLAGE OF CARDINGTON, OHIO : : Defendant-Appellee : Case No. 12CA0017

For the reasons stated in our accompanying Opinion, the judgment of the Morrow

County Court of Common Pleas is affirmed in part; reversed in part; and the matter

remanded for further proceedings in accordance with the law and our opinion. Costs to

be divided equally.

___________________________________ HON. WILLIAM B. HOFFMAN

___________________________________ HON. PATRICIA A. DELANEY

___________________________________ HON. CRAIG R. BALDWIN