Hernandez v. Pitt Ohio Express, LLC

Filing 23

MEMORANDUM OPINION granting Motion to dismiss for failure to state a claim (Related Doc # 16 ). Judge David A. Katz on 8/14/12.(G,C)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

JAY HERNANDEZ,
Plaintiff,

Case No. 3:11 CV 1507

-vsMEMORANDUM OPINION
PITT OHIO EXPRESS, LLC,
Defendant.
KATZ, J.
Plaintiff Jay Hernandez brings this suit against his former employer, Defendant Pitt Ohio
Express, LLC, for wrongful discharge in violation of Ohio’s public policy. Plaintiff asserts his
termination was contrary to Ohio’s public policy favoring workplace and roadway safety. The
matter is currently before the Court on Defendant’s motion to dismiss Plaintiff’s complaint
pursuant to FED. R. CIV. P. 12(b)(6). For the reasons stated herein, Defendant’s motion to dismiss
will be granted.
I. Background
The Court accepts Plaintiff’s factual allegations as true for purposes of Defendant’s motion
to dismiss. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Thurman v. Pfizer, Inc., 484 F.3d 855,
859 (6th Cir. 2007).
Plaintiff was employed by Defendant as a truck driver from February 2008 until February
6, 2011, when Plaintiff was terminated. In July 2010, “Plaintiff was instructed to work in the back
of a truck with a temperature of one hundred and ten degrees, all day.” (Doc. 1 at ¶6). Plaintiff
became dehydrated as a result of the excessive heat, and at some point, Plaintiff notified the
dispatcher that it was too hot to work, and that the conditions were unsafe. Plaintiff did not
complete the assignment, and as a result was suspended for five days.

In February 2011, Plaintiff was involved in an accident when his truck encountered black
ice. Because Plaintiff was on a final disciplinary warning for failing to complete his duties in July
2010, the accident caused Defendant to terminate Plaintiff. Plaintiff subsequently sued Defendant
for wrongful discharge in violation of Ohio public policy. Plaintiff maintains that his “final
disciplinary warning” status–and thus, the circumstance of his termination–was a violation of
Ohio public policy. Specifically, Plaintiff claims that it was a violation of public policy favoring
workplace and roadway safety policy to discipline Plaintiff for refusing to work in 110 degree
temperatures while dehydrated.
Defendant filed the instant FED. R. CIV. P. 12(b)(6) motion to dismiss on September 30,
2011. Plaintiff filed his opposition on October 31, 2011, and Defendant replied on November 14,
2011.
II. Standard of Review
FED. R. CIV. P. 12(b)(6) provides for dismissal of a lawsuit for “failure to state a claim
upon which relief can be granted.” Courts must accept as true all of the factual allegations
contained in the complaint when ruling on a motion to dismiss. Erickson v. Pardus, 551 U.S. 89,
94 (2007); Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007). To survive a motion to
dismiss under Rule 12(b)(6), “even though a complaint need not contain ‘detailed’ factual
allegations, its ‘factual allegations must be enough to raise a right to relief above the speculative
level on the assumption that all of the allegations in the complaint are true.’” Ass’n of Cleveland
Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Conclusory allegations or legal conclusions masquerading as factual allegations will not
suffice. Twombly, 550 U.S. at 555 (stating that the complaint must contain more than “a formulaic
recitation of the elements of the cause of action”). A complaint must state sufficient facts to, when
accepted as true, state a claim “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (explaining that the plausibility standard “asks for more than a sheer possibility that a
defendant has acted unlawfully” and requires the complaint to allow the court to draw the
reasonable inference that the defendant is liable for the alleged misconduct).
In conjunction with this standard, the Court is cognizant that FED. R. CIV. P. 8(a)(2)
“requires only ‘a short and plain statement of the claim showing that the pleader is entitled to
relief.’ Specific facts are not necessary; the statement need only ‘give the defendant fair notice of
what the . . . claim is and the ground upon which it rests.’” Erickson, 551 U.S. at 93 (citing
Twombly, 550 U.S. at 596); see also Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 29596 (6th Cir. 2008). The Court “may consider the Complaint and any exhibits attached thereto,
public records, items appearing in the record of the case and exhibits attached to defendant’s
motion to dismiss so long as they are referred to in the Complaint and are central to the claims
contained therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
III. Discussion
Wrongful discharge in violation of public policy is a narrow exception to Ohio’s
longstanding at-will employment doctrine allowing “an employer to terminate the employment of
his worker ‘at will for any cause, at any time whatsoever.’” Painter v. Graley, 639 N.E.2d 51, 55
(Ohio 1994) (quoting Phung v. Waste Mgt., Inc., 491 N.E.2d 1114, 1116 (Ohio 1986)); see also

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Greeley v. Miami Valley Maint. Contractors, 551 N.E.2d 981 (Ohio 199) (establishing public
policy cause of action). To state a claim for wrongful discharge in violation of public policy,
a plaintiff must plausibly allege that: (1) a clear public policy existed, manifested in
a state or federal constitution, statute or administrative regulation (clarity element); (2)
dismissing employees under such circumstances would jeopardize the public policy
(jeopardy element); (3) conduct related to the public policy motivated the dismissal
(causation element); and (4) the employer lacked an overriding business justification
(justification element).
Unger v. City of Mentor, 387 Fed.Appx. 589, 593-94 (6th Cir. 2010) (citing Kulch v. Structural
Fibers, Inc., 677 N.E.2d 308, 321 (Ohio 1997)). The clarity and jeopardy elements are questions
of law while the causation and justification elements are questions of fact. Dohme v. Eurand Am.,
Inc., 956 N.E.2d 825, 829 (Ohio 2011) (citing Collins v. Rizkana, 652 N.E.2d 653, 658 (Ohio
1995)). In the instant matter, Plaintiff cannot satisfy the jeopardy element.
To satisfy the jeopardy element, Plaintiff must demonstrate that the “policy itself is at risk
if dismissals like the one in question are allowed to continue.” Langley v. Daimler Chrysler Corp.,
407 F. Supp. 2d 897, 909 (N.D. Ohio 2005), aff’d, 502 F.3d 475 (6th Cir. 2007) (quoting Jermer v.
Siemens Energy & Automation, Inc. 395 F.3d 655, 659 (6th Cir. 2005)). Additionally, the notice
provision of the jeopardy element requires that “the employee’s conduct ‘must at least have made
it clear to his employer that he is invoking a governmental policy as the basis of his complaint, not
just his own self-interest.’” George v. Fairfield Metro. Hous. Auth., No. 2:07-cv-0357, 2008 WL
3008663, at *8 (S.D. Ohio 2008) (quoting Jermer, 395 F.3d at 659). As the Sixth Circuit
explained:
In exchange for granting employees [the public policy] protection, employers must
receive notice that they are no longer dealing solely with an at-will employee, but with
someone who is vindicating a governmental policy. Employers receive clear notice of
this fact when actual government regulators arrive to audit or inspect. They should
receive some similar notice when an employee functions in a comparable role. Even
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though an employee need not cite any specific statute or law, his statements must
indicate to a reasonable employer that he is invoking governmental policy in support
of, or as the basis for his complaints.
Jermer, 395 F.3d at 659.
In Aker v. New York & Co., 364 F. Supp.2d 661, 665 (N.D. Ohio 2005), plaintiff store
manager voiced concern for her personal safety as a result of the defendant store’s policy
regarding shoplifters. The district court granted the defendant’s motion to dismiss because
notwithstanding plaintiff’s complaint regarding personal safety, “[n]othing in plaintiff’s complaint
indicates that plaintiff told defendant that, if she was terminated, defendant would be violating the
Ohio public policy favoring workplace safety.” Id. at 665-66. In Jermer, plaintiff manufacturing
engineer raised concerns about the air quality at defendant’s manufacturing facility on two
separate occasions. In so doing, the plaintiff pointed to his own health issues, as well as to a coworker’s cough. Jermer, 395 F.3d at 559. Despite this, the Sixth Circuit found that the plaintiff’s
complaints did not satisfy the jeopardy element because the plaintiff did not “in any way indicate
that he was invoking a governmental policy in favor of workplace safety.” Id.
In the instant matter, Plaintiff’s claim that he “informed the dispatcher that it was too hot,
and that the conditions were unsafe as a result,” (Doc. 1 at ¶6), does not “in any way indicate that
he was invoking a governmental policy in favor of workplace safety.” Jermer, 395 F.3d at 559.
Instead, the facts in Plaintiff’s complaint are analogous to the Acker plaintiff’s statement of
concern regarding personal safety. Such a statement is insufficient to satisfy the jeopardy element
of a claim for wrongful discharge in violation of Ohio public policy, and Plaintiff’s lawsuit must
therefore be dismissed.
IV. Conclusion

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For the foregoing reasons, Defendant’s FED. R. CIV. P. 12(b)(6) motion to dismiss
Plaintiff’s complaint is granted. Case Closed.
IT IS SO ORDERED.

S/ David A. Katz
DAVID A. KATZ
U. S. DISTRICT JUDGE

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