Keehan v. Certech, Inc. et al
Filing
19
Memorandum Opinion and Order: Plaintiff's motion to remand (Doc. No. 8 ) is granted. This case shall be remanded to the Summit County Court of Common Pleas. Judge Sara Lioi on 12/10/2015. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DANIEL J. KEEHAN,
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PLAINTIFF,
vs.
CERTECH, INC., et al.,
DEFENDANTS.
CASE NO. 5:15-cv-1236
JUDGE SARA LIOI
MEMORANDUM OPINION AND
ORDER
This matter is before the Court on the motion of plaintiff Daniel J. Keehan
(“plaintiff” or “Keehan”) to remand this case to the Summit County Court of Common
Pleas. (Doc. No. 8 [“Mot.”].) Defendants have opposed the motion (Doc. No. 10
[“Opp’n”]), and plaintiff has replied (Doc. No. 12 [“Reply”]). For the reasons that follow,
plaintiff’s motion to remand is granted.
I. BACKGROUND
Plaintiff filed his complaint in the Summit County Court of Common
Pleas alleging violation of Ohio’s whistleblower statute, and wrongful discharge in
violation of public policy, against both corporate and individual defendants. (Doc. No. 12 [“Compl.”].) Plaintiff was employed by the “Morgan Defendants” as a “general
manager” of defendants’ facility in Twinsburg, Ohio. (Compl. ¶ 16.) Plaintiff collectively
defines defendants Certech, Inc., Morgan Advanced Ceramic, Inc., and Morgan
Advanced Materials, PLC, as the “Morgan Defendants.” (Compl. ¶ 5.).
Plaintiff alleges that the Morgan Defendants had a contractual relationship
with Flexible Staffing to provide temporary workers for the labor needs of the Morgan
Defendants. (Compl. ¶¶ 17, 19.) The complaint is replete with allegations regarding
illegal conduct with respect to the Morgan Defendants’ relationship with Flexible
Staffing, including but not limited to, kickbacks (Compl. ¶ 35), payment “under the
table,” altered W-2’s to obtain government subsidies, and employment of felons who
were not permitted to work for the Morgan Defendants (Compl. ¶¶ 44-45).
In addition, plaintiff “properly notified the Morgan Defendants . . . on
several occasions that nonconforming airline parts were being shipped to a client in
Mexico, and that the nonconformity was likely to cause an imminent risk of harm to
persons and a hazard to public health and safety[,]” but “[n]o investigation was initiated
by the Morgan Defendants . . . as a result of any notice provided by Plaintiff.” (Compl. ¶¶
55-56.).
Plaintiff alleges that on April 11, 2014, he informed Kristine Waggoner
(“Waggoner”), the Vice President of Human Resources of Morgan Advanced Ceramics,
of his concerns regarding Flexible Staffing. (Compl. ¶ 53.) Plaintiff further “felt he
needed to set the record straight as to what was happening at the Twinsburg plant” and,
through his attorney on August 19, 2014, plaintiff sent written notice to John Stang
(“Stang”), the “President North America” of defendant Morgan Advanced Materials with
oversight of the Morgan Defendants. (Compl. ¶¶ 7, 57.) Plaintiff also alleges that he met
with Lynsey Poulton (“Poulton”) on November 3, 2014, and explained to her the abovedescribed issues with respect to Flexible Staffing and shipment of nonconforming airline
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parts. (Compl. ¶¶ 61-62.) Poulton is the “Responsible Business Program and Risk
Manager” for the Morgan Defendants. (Compl. ¶ 6.).
Stang, Poulton, and Nicholas Korenowski (“Korenowski”) are the
individual defendants named in this action. Korenowski became plaintiff’s supervisor on
July 7, 2014 (Opp’n at 931), “and had the authority to terminate the employment,
discipline, or otherwise affect the terms and conditions of Plaintiff’s employment on or
about November 19, 2014.” (Compl. ¶ 5.).
According to plaintiff he was first told by the Morgan Defendants that he
would be promoted to Director of Operations, though plaintiff does not specify who
provided that information. (Compl. ¶ 58.) “Shortly thereafter, Plainitff was informed by
Korenowski, who was the Vice President and General Manager of Certech, Inc., that the
Morgan Defendants . . . were going to demote the Plaintiff instead of promote him and
that they planned to remove him from any leadership position.” (Compl. ¶ 60.) Plaintiff
alleges that Stang, Poulton and Korenowski were aware that plaintiff had raised
complaints orally and in writing regarding alleged issues with respect to Flexible Staffing
and nonconforming aircraft parts. (Compl. ¶¶ 64-67.) Finally, he alleges that Korenowski
informed him on November 19, 2014, that his employment with the Morgan Defendants
was terminated. (Compl. ¶ 68.).
1
All references to page numbers are to the Court’s page identification numbers generated by the Court’s
electronic filing system.
3
For his first and second causes of action, plaintiff alleges that Stang,
Poulton, Korenowski, and the Morgan Defendants terminated his employment in
violation of Ohio Rev. Code § 4113.52 due to his complaints regarding issues with
Flexible Staffing and the sale of non-conforming airline parts. (Compl. ¶¶ 72-120.) In his
third and fourth causes of action, plaintiff alleges that he was wrongfully terminated for
these same reasons, in violation of public policy, by Stang, Korenowski, and Poulton
(Compl. ¶¶ 128-129), and the Morgan Defendants. (See Compl. ¶¶ 121-155.).
Defendants removed this action on the basis of the Court’s diversity
jurisdiction. 28 U.S.C. § 1332. (Doc. No. 1 (Notice of Removal [“Notice”]).) Defendants
recognize that defendant Korenowski and plaintiff are both citizens of Ohio, but claim
that plaintiff does not have a colorable legal claim against the individual defendants,
including Korenowski, under Ohio’s whistleblower statute—Ohio Rev. Code. § 4113.52,
or under Ohio law for wrongful discharge in violation of public policy. (Notice ¶¶ 14-19.)
Lacking a colorable state law claim against Korenowski, defendants claim that
Korenowski was fraudulently joined. (Notice ¶ 21.).
II. DISCUSSION
A. Standard on Motion to Remand
A defendant may remove to federal court only state court actions that
originally could have been filed in federal court. Caterpillar, Inc. v. Williams, 482 U.S.
386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987); 28 U.S.C. § 1441(a). As a court of
limited jurisdiction, a federal district court must proceed cautiously in determining that it
has subject matter jurisdiction. Musson Theatrical v. Fed. Express Corp., 89 F.3d 1244,
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1252 (6th Cir. 1996). The court must give “due regard” to the power reserved to the states
under the Constitution to provide for the determination of controversies in the state
courts. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09, 61 S. Ct. 868, 85 L.
Ed. 1214 (1941). Accordingly, removal statutes must be construed strictly to promote
comity and preserve jurisdictional boundaries between state and federal courts. Alexander
v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994). “[A]ll doubts as to the
propriety of removal are resolved in favor of remand.” Coyne v. Am. Tobacco Co., 183
F.3d 488, 493 (6th Cir. 1999). The removing defendant bears the burden of proving the
court’s jurisdiction. See Rogers v. Wal–Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir.
2000).
Defendants’ basis for removal in this case is federal diversity jurisdiction.
28 U.S.C. § 1332. When an action is removed on diversity, the court must determine
whether complete diversity exists at the time of removal. “Indeed, ‘diversity jurisdiction
attaches only when all parties on one side of the litigation are of a different citizenship
from all parties on the other side.’” Coyne, 183 F.3d at 492 (quoting SHR Ltd. P’ship v.
Braun, 888 F.2d 455, 456 (6th Cir. 1989)). However, “fraudulent joinder of non-diverse
defendants will not defeat removal on diversity grounds.” Id. at 493 (citing Alexander, 13
F.3d at 949).
To establish fraudulent joinder, the removing party “must present
sufficient evidence that a plaintiff could not have established a cause of action against
non-diverse defendants under state law.” Id. at 493.
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[I]f there is a colorable basis for predicting that a plaintiff may recover
against non-diverse defendants, this Court must remand the action to state
court. The district court must resolve all disputed questions of fact and
ambiguities in the controlling state law in favor of the non-removing party.
All doubts as to the propriety of removal are resolved in favor of remand.
Id. (internal quotation marks and citation omitted); Kent State Univ. Bd. of Trs. v.
Lexington Ins. Co., No. 11–3601, 2013 WL 216026, at * 3 (6th Cir. Jan. 22, 2013)
(quoting Coyne, 183 F.3d at 492-93).
“The combination of the ‘colorable’ standard with the requirement that all
ambiguities of state law are to be resolved in favor of the non-removing party presents a
significant hurdle. A defendant attempting to prove fraudulent joinder thus faces a
particularly heavy burden.” Kent State, 2013 WL 216026, at *4.
In removing this action, defendants claim that Korenowski was
fraudulently joined because plaintiff has no legal claim against an individual supervisor:
(1) under Ohio’s whistleblower statute, Ohio Rev. Code § 4113.52 (Notice ¶ 15); or (2)
under Ohio law for wrongful discharge in violation of public policy (Notice ¶ 16).
B. Ohio Rev. Code § 4113.52 – Ohio’s Whistleblower Statute
Plaintiff’s first claim against Korenowski (first cause of action) alleges a
violation of Ohio’s whistleblower statute—Ohio Rev. Code § 4113.52. (Compl. ¶¶ 7294.) Ohio’s whistleblower statute provides a procedure for an employee to follow if the
employee becomes aware of a violation of any state or federal statute, ordinance or
regulation, work rule or company policy, that the employee reasonably believes is a
criminal offense, or is likely to cause an imminent risk of physical harm to persons or a
hazard to public health or safety, or is a felony. That procedure begins with oral
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notification of the employee’s supervisor, followed by a written report. See Ohio Rev.
Code § 4113.52(A). The whistleblower statute prohibits an employer from taking
disciplinary or retaliatory action against an employee for making a report authorized by §
4113.52(A). See Ohio Rev. Code § 4113.52(B).
In his motion to remand, plaintiff contends that he has stated a colorable
claim against Korenowski because individual supervisors are agents of employers under
Ohio’s whistleblower statute, and are liable under the statute. Defendants take the
opposite view, citing Armstrong v. Trans-Service Logistics, Inc., No. 04CA015, 2005 WL
1301691 (Ohio Ct. App. May 27, 2005), and posit that plaintiff has no colorable claim
under the whistleblower statute against Korenowski individually.
In Armstrong, plaintiff alleged that he was terminated by defendant for
reporting to authorities that meat was being transported at too high a temperature.
Plaintiff sued his employer and individual supervisors and officers under Ohio Rev. Code
§ 4113.52, and under a common law theory of wrongful discharge in violation of public
policy. The individual defendants moved for summary judgment, and, concluding that
there was no individual liability under either Ohio’s whistleblower statute or for wrongful
discharge, the trial court granted the motion.
On appeal, appellant argued that an individual supervisor can be liable
under the whistleblower statute pursuant to the same rationale utilized by the Ohio
Supreme Court in holding that a supervisor can be jointly and severally liable with the
employer for discriminatory conduct found to be in violation of Ohio Rev. Code Chapter
4112. The appellate court in Armstrong undertook an extensive analysis comparing the
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definition of an employer under Ohio Rev. Code § 4112.01(A)(2), Ohio Rev. Code §
4113.52, and Title VII, and also analyzing the remedies available under Ohio Rev. Code
§ 4113.52. Armstrong, 2005 WL 1301691, at *5-6. Based upon this analysis, the court in
Armstrong concluded that the reference to “agents” of employers in the whistleblower
statute refers to respondeat superior liability of the employer, and does not include
individual liability:
R.C. 4133.52, the “whistleblower” statute, creates liability for the
“employer,” i.e. the corporate entity. However, a strict and literal reading
of the statute, as well as the case law from the Ohio Supreme Court,
foreclose finding an individual supervisor liable for wrongful discharge
under the statute.
Id. at *6.
Plaintiff does not directly address the holding in Armstrong, but cites
Atram v. Star Tool & Die Corp., 581 N.E.2d 1110 (Ohio Ct. App. 1989), and Bowes v.
Cinci. Riverfront Coliseum, Inc., 465 N.E.2d 904 (Ohio Ct. App. 1983), in support of his
position that he has asserted a colorable claim for individual liability against Korenowski
under the whistleblower statute. But these cases discuss the individual liability of
corporate officers in tort and do not involve Ohio’s whistleblower statute.
Armstrong holds that there is no liability for individual supervisors under
Ohio’s whistleblower statute.
As noted by the Sixth Circuit, “[w]here a state appellate court has
resolved an issue to which the high court has not spoken, ‘we will
normally treat [such] decisions . . . as authoritative absent a strong
showing that the state's highest court would decide the issue differently.’”
Swix v. Daisy Mfg. Co., Inc., 373 F.3d 678, 681 (6th Cir. 2004) (alterations
in original) (citations omitted). A decision of a state's intermediate
appellate court, “while lacking the controlling force of a decision of a state
court of last resort, does serve as ‘a datum for ascertaining state law which
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is not to be disregarded by a federal court unless it is convinced by other
persuasive data that the highest court of the state would decide
otherwise.’” Kurczi v. Eli Lilly & Co., 113 F.3d 1426, 1429 (6th Cir. 1997)
(quoting Ziebart Int'l Corp. v. C NA Ins. Cos., 78 F.3d 245 (6th Cir.
1996)).
Kunkle v. Q-Mark, Inc., No. 3:13-cv-82, 2013 WL 3288398, at *5 (S.D. Ohio June 28,
2013) (alteration in original).
The Court recognizes that it is defendants’ burden to establish fraudulent
joinder and that ambiguities in law must be resolved in favor of plaintiff. Coyne, 183 F.3d
at 493. That said, in the face of the Armstrong decision and the absence of persuasive
authority that the Ohio Supreme Court would reach a contrary holding, the Court
concludes, for the purpose of fraudulent joinder analysis, that plaintiff has not stated a
colorable claim for individual liability against Korenowski under Ohio Rev. Code §
4113.52.
C. Wrongful Discharge in Violation of Public Policy
Plaintiff’s second claim against Korenowski (third cause of action) is for
wrongful termination in violation of public policy. (Compl. ¶¶ 121-37.) With respect to
this claim, plaintiff alleges that he was wrongfully terminated by the individual
defendants, including Korenowski, for complaining about clear violations of public
policies by the Morgan Defendants.2
2
Plaintiff alleges that the public policies violated by defendants include the following: (1) that sales tax be
levied on the sale of certain commercial goods and services pursuant to Ohio Rev. Code Chapter 5739
(Compl. ¶ 122); (2) that federal and state law require that W-2’s contain accurate information regarding
wages paid and taxes withheld pursuant to Title 57 of the Ohio Revised Code and Title 26 of the United
States Code (Compl. ¶ 123); (3) against permitting unauthorized persons to work in the United States
pursuant to 8 U.S.C. § 1324a (Compl. ¶ 124); against individual obtaining government subsidies based on
fraudulent information (Compl. ¶ 125); and (4) against providing defective or nonconforming goods
(airline parts) that pose a threat to public safety and risk of physical harm in violation of Ohio Rev. Code §
2307 et seq. (Compl. ¶¶ 126-27).
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In Ohio, there is an exception to the employment-at-will doctrine where
“an employee is discharged or disciplined in contravention of a clear public policy
articulated in the Ohio or United States Constitution, federal or state statutes,
administrative rules and regulations, or common law[.]” Kunkle, 2013 WL 3288398, at
*1 (quoting Dohme v. Eurand Am., Inc., 956 N.E.2d 825, 829 (Ohio 2011) (citing Painter
v. Graley, 639 N.E.2d 51 (Ohio 1994) and Greeley v. Miami Valley Maint. Contractors,
Inc., 551 N.E.2d 981 (Ohio 1990))). A claim for wrongful discharge in violation of public
policy is also known as a Greeley claim. See Blackburn v. Am. Dental Ctrs., 22 N.E.3d
1149, 1155 (Ohio Ct. App. 2014).
1. Claim against Korenowski may be available under Ohio law
Unlike with the whistleblower statute, individual supervisors may be
subject to liability with respect to a tort claim for wrongful discharge in violation of
public policy. Armstrong, 2005 WL 1301691, at *8-10 (individual liability may exist in
claims for wrongful termination in violation of Ohio’s public policy with respect to
health and safety). Defendants cite Arthur v. Armco, Inc., 122 F. Supp. 2d. 876, 880 (S.D.
Ohio 2000) in support of their argument that individual supervisor liability is not
available under Ohio law for termination in violation of public policy. But Arthur was
decided before Armstrong and defendants acknowledge the contrary holding of
Armstrong, and that other courts in the district have recognized the possibility of
individual liability in Ohio in this context. Notice ¶ 16; see Jenkins v. Ctr. Transp., Inc.,
No. 09CV525, 2010 WL 420027, at *4 (N.D. Ohio Jan. 29, 2010) (individual liability for
a Greeley claim “at least a possibility” under Ohio law); Praisler v. Ryder Integrated
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Logistics, 417 F. Supp. 2d 917, 919 (N.D. Ohio 2006) (Ohio law supports a claim against
individual defendant); Kunkle, 2013 WL 3288398, at *4-5 (recognizing individual
liability in Ohio for claims against individual supervisors participating in wrongful
termination of employee) (citing Arthur, 122 F. Supp. 2d at 880, Armstrong, 2005 WL
1301691, at *9-10, and collecting cases).
The Ohio court of appeals in Armstrong has concluded that an individual
supervisor may be liable under certain circumstances for wrongful discharge in violation
of public policy, and there is no “strong showing” before the Court that the Ohio
Supreme Court would decide the issue differently. Kunkle, 2013 WL 3288298, at *5.
Further, to the extent there is a conflict or ambiguity in the law, it must be resolved in
favor of plaintiff in the context of fraudulent joinder analysis. Jenkins, 2010 WL 420027,
at *4 (citing Coyne, 183 F.3d at 493).
Defendants assert that Korenowski served as plaintiff’s supervisor “for a
brief period of time prior to Keehan’s termination.” (Opp’n at 92.) To the extent that
defendants are arguing that Korenowski cannot be individually liable for wrongful
discharge because he played a very limited role in plaintiff’s termination, the court’s
decision in Armstrong is broadly written, and potential individual liability attaches to an
individual who “actively participates or acquiesces in the discharge of an employee for
reporting violations[.]” Armstrong, 2005 WL 1301691, at *8; Jenkins, 2010 WL 420027,
at *4 (“Armstrong by its very terms does not limit liability to those who actually make the
firing decision[.]”) The issue of Korenowski’s role and ultimate responsibility, if any,
with respect to plaintiff’s discharge remains to be determined in state court. This Court
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merely notes that under existing Ohio case law, Korenowski’s potential liability is not
foreclosed merely because he may have supervised plaintiff for a only relatively short
period of time.
Accordingly, the Court concludes, that for the purpose of fraudulent
joinder analysis, plaintiff has asserted a colorable claim for individual liability against
Korenowski under Ohio law.
2. Violation of public policy independent of whistleblower statute
Even if a claim for individual liability is available against Korenowski for
wrongful discharge in violation of public policy, defendants argue that plaintiff still fails
to advance a colorable claim against Korenowski for two reasons. First, defendants argue
that plaintiff’s public policy claim is simply a “derivative whistleblower claim” and,
since there is no individual supervisor liability under the whistleblower statute, there can
be no supervisor liability for a derivative public policy claim. (Opp’n at 98-99.)
Defendants further argue that, even if there is individual liability under a derivative
whistleblower claim, because Keehan does not allege that he followed the required
procedures of the whistleblower statute with respect to an oral and written report to
Korenowski, his derivative whistleblower public policy claim against Korenowski fails.
(Opp’n at 101.).
“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 * * * and its progeny, so long as that employee
had fully complied with the statute and was subsequently discharged or disciplined.”
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Blackburn, 22 N.E.3d at 1155 (quoting Kulch v. Structural Fibers, Inc., 677 N.E.2d 308
(Ohio 1997), paragraph three of the syllabus). If an employee fails to “strictly comply”
with the requirements of Ohio Rev. Code § 4113.52, then the employee cannot base a
Greeley claim on the public policy embodied in the whistleblower statute, but must
identify an independent source of public policy to support the wrongful discharge claim.
Blackburn, 22 N.E.3d at 1155 (citing Thompson v. Gynecologic Oncology & Pelvic
Surgery Assoc., No. 06AP–340, 2006 WL 3491738, at *14 (Ohio Ct. App. 2006); Lesko
v. Riverside Methodist Hosp., No. 04AP–1130, 2005 WL 1482549, at *8 (Ohio Ct. App.
2005)).
The Court need not address or decide whether plaintiff has stated a
derivative whistleblower public policy claim—that is, violation of a public policy
embodied in Ohio Rev. Code § 4113.52—because, as discussed below, plaintiff has
identified an independent source of public policy with respect to at least one of his
claims—nonconforming aircraft parts. Zajc v. Hycomp, Inc., 873 N.E.2d 337, 343 (Ohio
Ct. App. 2009) (plaintiff was entitled to maintain a Greeley claim whether or not he
complied with the requirements of Ohio’s whistleblower statute) (citing Kulch).
Even if plaintiff’s Greeley claim is not grounded in Ohio’s whistleblower
statute, defendants argue that plaintiff still fails to assert a colorable wrongful discharge
claim against Korenowski because plaintiff cannot satisfy the first two elements of a
Greeley claim. (Opp’n at 102.).3
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Defendants to not challenge elements 3 and 4 of plaintiff’s Greeley claim.
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To establish a prima facie claim of wrongful discharge claim in
violation of public policy, the employee must demonstrate the following
four elements: (1) that there exists a clear public policy that is manifested
in a state or federal constitution, statute, or administrative regulation, or in
the common law (the “clarity” element), (2) that dismissal of employees
under circumstances like those involved in the plaintiff's dismissal would
jeopardize that public policy (the “jeopardy” element), (3) that the
plaintiff's dismissal was motivated by conduct related to the public policy
(the “causation” element), and (4) that the employer lacked overriding
legitimate business justification for the dismissal (the “overriding
justification” element). Collins v. Rizkana, 73 Ohio St.3d 65, 69–70, 652
N.E.2d 653 (1995). The clarity and jeopardy elements are questions of law
to be decided by the court, and the causation and overriding justification
elements are questions of fact to be decided by the fact finder. Id. at 70,
652 N.E.2d 653.
Blackburn, 22 N.E.3d at 1154-55; see also Dohme, 956 N.E.2d at 829.
a. Clarity
According to defendants, plaintiff cannot satisfy the clarity element
because he does not make specific citations to a public policy that defendants violated.
Rather, defendants assert,
he makes general references to policies allegedly violated by a third party
employer, Flexible Staffing. In his complaint, he broadly references the
federal and state tax code without providing a specific citation. He
mentions “a myriad of Ohio and Federal laws” regarding obtaining
government subsidies, but fails to cite a specific provision. He mentions
policy related to providing non-defective goods, but fails to cite a specific
provision. Accordingly, he has failed to meet the clarity element because
he only mentions general statutes and concepts rather than citation of
specific provisions.
(Opp’n at 103.).
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Defendants are wrong. Plaintiff has identified a specific source of public
policy at least with respect to his allegation that the Morgan Defendants shipped
nonconforming aircraft parts to a client—Ohio Rev. Code § 2301, et seq.4 (Compl. ¶ 126
(“There is a clear public policy in providing conforming and non-defective goods,
especially when a defect or nonconformity poses a significant threat to public safety and
can result in and [sic] imminent risk of physical harm. For example, O.R.C. Chapter
2307, et seq.”).) In addition, Ohio case law supports a public policy exception to the
employment-at-will doctrine with respect to nonconforming aircraft parts.
In Zajc, plaintiff claimed that he was terminated for refusing to ship what
he claimed were nonconforming aircraft parts in violation of public policy. Zajc, 873
N.E.2d at 339. Zajc argued that the UCC and Ohio Products Liability Act (Ohio Rev.
Code Chapter 2307) established a clear public policy against the shipment of
nonconforming aircraft parts. Id. at 342. Defendant moved for summary judgment,
arguing that plaintiff could not establish the clarity or jeopardy elements of plaintiff’s
claim for wrongful discharge. Id. at 339-340. The trial court agreed with defendants and
granted summary judgment.
The Ohio court of appeals reversed. In concluding that Zajc had
established the clarity element of his Greeley claim, the appellate court reasoned that
Ohio’s products liability statute must be considered in relation to the federal statutory and
regulatory provisions authorizing the Federal Aviation Administration (“FAA”) to
4
The parties extensively discuss whether plaintiff’s other alleged public policy violations satisfy the clarity
element. But the Court need not—and does not—decide those issues. For purposes of ruling upon
plaintiff’s motion to remand, the Court need only find that plaintiff asserts one colorable claim against
Korenowski.
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regulate the production of aircraft, and that a system must be in place to determine if
aircraft parts meet design specifications. Zajc, 873 N.E.2d at 343. Defendant Hycomp
insisted on appeal that the plaintiff failed to establish clarity because “the proffered
authority is insufficient to establish a policy of prohibiting the termination of an
employee who raises objections to the safety of the product.” Id. at 342 (emphasis in
original). But the court of appeals disagreed, finding that “Supreme Court case law
clearly expanded the scope of the wrongful discharge tort so that it is not limited to
situations in which the discharge violates the statute.” Id. at 342 (citing Wiles v. Medina
Auto Parts, 773 N.E.2d 526, 529 (2002) (“a valid Greeley claim is not limited to
situations where the discharge violates a statute”)).
In this case, plaintiff asserts a specific Ohio statute—Ohio Rev. Code §
2307 et seq.—that is entirely separate from the whistleblower statute, as the basis for his
public policy claim with respect to the shipment of nonconforming aircraft parts by the
Morgan Defendants. Further, Ohio case law supports plaintiff’s claim that Ohio’s
products liability statute satisfies the clarity element of his public policy claim with
respect to nonconforming aircraft parts. Zajc, 873 N.E.2d at 343 (distinguishing Celeste
v. Wiseco Piston, No. 2004-L-073, 2005 WL 3528877 (Ohio Ct. App. Dec. 23, 2005),
where plaintiff conceded underlying public policy was codified in the whistleblower
statute).
Accordingly, with respect to the alleged shipment of nonconforming
aircraft parts, the Court concludes that plaintiff has asserted a colorable state law claim
against Korenowski with respect to the clarity element of his wrongful discharge claim.
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b. Jeopardy
Even if plaintiff can establish the clarity element of his Greeley claim,
defendants argue that plaintiff cannot satisfy the jeopardy element. (Opp’n at 103-04.)
The jeopardy element of a Greeley claim is satisfied “if there is no adequate statutory
remedy available to the plaintiff.” Jenkins, 2010 WL at 420027, at *6.
Defendants’ jeopardy argument focuses entirely on plaintiff’s public
policy claims regarding Flexible Staffing and does not address plaintiff’s public policy
allegations regarding nonconforming aircraft parts. (Opp’n at 103-04.) Defendants cite
Vancoppenolle v. Sun Pharm. Indus., Inc., No. 3:08 CV 2797, 2013 WL 1337784 at *7
(N.D. Ohio Mar. 29, 2013), in support of their jeopardy argument. In that case, which
involved the provisions of the Food, Drug, and Cosmetic Act, the court concluded that
plaintiff failed to satisfy the jeopardy element.
The provisions of the Food, Drug, and Cosmetic Act, however, are not at
issue in this case. Rather, plaintiff claims that he was discharged for complaining about
the shipment of nonconforming aircraft parts. The Ohio court of appeals in Zajc
concluded that the jeopardy element was satisfied with respect to a similar claim. Zajc,
873 N.E.2d at 343 (“[T]he termination of employees under circumstances like those
involved in this matter would jeopardize public policy.”).
It is defendants’ burden to show that plaintiff has no state law claim
against Korenowski with respect to his allegations regarding shipment of nonconforming
aircraft parts by the Morgan Defendants. As to the jeopardy element, defendants have
cited inapposite case law, failed to address the opinion of the Ohio court of appeals in
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Zajc, and have not pointed to a statutory remedy available to plaintiff for wrongful
discharge under Ohio Rev. Code § 2307, which plaintiff pleads as the source of his public
policy claim. See Jenkins, 2010 WL at 420027, at *6; Kunkle, 2013 WL 3288398, at *4;
cf. Leininger v. Pioneer Nat’l Latex, 875 N.E.2d 36, 44 (Ohio 2007) (jeopardy element
necessary to support a common law claim is not satisfied because remedies available to
employees in Ohio Rev. Code Chapter 4112 adequately protect the state’s policy against
age discrimination).
Therefore, the Court concludes that, for the purpose of fraudulent joinder,
plaintiff has asserted a colorable claim against Korenowsi with respect to the jeopardy
element of his wrongful discharge claim.
D. Remand Analysis
In order to survive a motion to remand in a case removed on the basis of
fraudulent joinder, defendants must establish that plaintiff could not establish a cause of
action against the non-diverse defendant under Ohio law. If there is a “colorable basis”
upon which plaintiff may recover against the non-diverse defendant, then the action must
be remanded to state court. Coyne, 183 F. 3d at 493. For the reasons stated above, the
Court cannot conclude that plaintiff has no possibility of asserting a colorable state law
claim against Korenowski. The Court must therefore conclude that Korenowski has not
been fraudulently joined. Korenowski and plaintiff are both citizens of Ohio. Thus, the
Court lacks federal diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332, and
it must be remanded to state court.
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III. CONCLUSION
For all of the foregoing reasons, plaintiff’s motion to remand is granted.
This case shall be remanded to the Summit County Court of Common Pleas.
IT IS SO ORDERED.
Dated: December 10, 2015
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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