In the case of Dohme v. Eurand America, Inc. (2011), Ohio St.3d 168, the Ohio Supreme Court again emphasized what is required to establish a claim for wrongful discharge in violation of a public policy. In order to succeed on this type of claim a terminated employee must articulate a clear public policy that has been violated. The employee must be able to cite to a specific provision of the federal or state constitution, federal or state statutes, administrative rules or regulations or from the common law that identifies a valid public policy.
In Dohme, the Plaintiff claimed he was fired by his employer, Eurand America, Inc., because he had expressed concerns about the safety of their facility to an insurance adjuster. Prior to the adjuster’s visit to the Eurand facility, the employees at that facility had been told by their employer that only certain employees were to have any contact with the adjuster or communicate with the adjuster in any way. The Plaintiff was not on the list of authorized employees. Plaintiff, however, chose to approach the adjuster and to alert him about a missing internal monthly status report that raised concerns about overdue fire alarm inspections. When Eurand became aware of the
Plaintiff’s actions, he was terminated for violating the recent communication. After the Plaintiff filed suit against Eurand, the trial court dismissed the action by granting the employer’s motion for summary judgment. On further appeal, the appellate court reversed the decision, finding that there was a clear public policy generally favoring fire safety in the workplace. The appellate court felt that there was evidence that Eurand had retaliated against Mr. Dohme because he had raised concerns over fire safety.
In reversing the appellate court’s decision, the Ohio Supreme Court emphasized that in recognizing an exception to the employment at will doctrine in Ohio for terminations that violate a public policy, the Plaintiff must show that a clear public policy exists that justifies the exception. Usually, that means the public policy must be derived from a statute, regulation or a constitutional provision. In theDohme case, the Plaintiff did not cite to a specific statute or regulation that specifically addressed fire safety in the workplace. Without a specific statutory basis for the public policy, the court refused to extend the exception to Plaintiff’s case and allow him to recover under a theory of retaliation.
While there are a number of statutes in Ohio that deal with fire safety, none of them specifically articulate any protection for employees who complain about fire safety concerns. The court emphasizes that it is up to the Plaintiff to provide proof of the existence of a public policy that was threatened by the employer’s actions.
Employers should always be careful when taking adverse employment action against an employee who has complained in the past about safety issues within a facility. The termination must be linked specifically to past misconduct in order to avoid any appearance that the action was taken against the employee in retaliation for his or her complaints.