Lightner v. CB&I Constructors, Inc. et al
Filing
54
ORDER granting in part and denying in part 36 Motion for Summary Judgment. GRANTING the motion as to FMLA interference, DENYING the motion as to FMLA retaliation, and DENIES the motion as to wrongful discharge in contravention of public policy. Signed by Judge Algenon L. Marbley on 11/14/2016. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
EVAN J. LIGHTNER,
Plaintiff,
v.
CB&I CONSTRUCTORS, INC., et al.,
Defendant.
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Case No. 14-CV-2087
JUDGE ALGENON L. MARBLEY
Magistrate Judge Jolson
OPINION & ORDER
Before the Court is the Motion for Summary Judgment filed by Defendant CB&I
Environmental and Infrastructure, Inc. (Doc. 36). It is fully briefed and ripe for review. For the
reasons that follow, the Court GRANTS in part and DENIES in part the motion.
I. BACKGROUND
A. Factual Background
Plaintiff Evan J. Lightner has been employed for the majority of his career in the
construction and solid waste industries. (Lightner Dep., Doc. 48-1 at 20.) He has held several
supervisory positions in the field, and has received special training and certification as required
by the Occupational Health and Safety Administration (“OSHA”) for such work. (Id. at 19.) On
July 9, 2009, Plaintiff accepted an offer to work as a Site Superintendent for Defendant. (Offer
Letter, Doc. 48-2.) In that position, he was responsible for managing and supervising solid waste
and landfill development projects. (Lightner Dep., Doc. 48-1 at 41.) His responsibilities also
included ensuring safe work practices and compliance with OSHA requirements. (Id. at 50.)
Plaintiff was by all accounts and at all times a competent, diligent and valuable
employee. Annual performance evaluations from 2009, 2010, 2012, and 2013 indicate that he
1
met or exceeded all expectations. (See Performance Evals., Docs. 48-3-6.) Josh Broggi, one of
Plaintiff’s supervisors and Project Manager in the Solid Waste Group, testified at deposition that
Plaintiff was hardworking, passionate, and safety conscious. (Broggi Dep., Doc. 48-7 at 33-34.)
In August of 2011, Plaintiff’s wife was diagnosed with cancer. (Lightner Dep., Doc. 40-1
at 58.) Operations Manager (and Plaintiff’s supervisor) Mike Mehalic told him that Defendant
would be “more than happy” to help Plaintiff take care of his wife. (Id. at 59.) He directed
Plaintiff to human resources, and Plaintiff was approved to take his requested intermittent leave
through October 31, 2011. (Id. at 60, 62.) Plaintiff was “very happy” with the support he
received from Defendant during that time. (Id. at 64.)
In 2012, Greg Cooper replaced Mehalic as Operations Manager for Defendant’s Solid
Waste Construction Group. (Cooper Dep., Doc.48-8 at 32-33.) Plaintiff and his coworkers and
supervisors worked on landfill projects. To the uninitiated, solid waste landfills require regular
monitoring. If not properly vented, they accumulate gas and can create hazardous, sometimes
explosive, conditions. The Solid Waste Construction Group is responsible for ensuring that does
not happen. (Id. at 33, 35.)
In July or August of 2013, Plaintiff raised concerns about Defendant’s Maine Crossroads
Landfill Project. (Lightner Dep., Doc. 48-1 at 106.) He noticed unsafe dump truck operations,
and he discussed his concerns with Broggi “at great length.” (Id. at 107.) Broggi assured him
that, even though they had no OSHA training and were not certified by Defendant to operate the
equipment, the truck operators had sufficient construction experience and knowhow. (Id. at 10708.) Plaintiff expressed similar concern via emails to Broggi and Cooper about other workers
who welded pipes and were similarly unqualified and untrained. (Id. at 108-09.) In October of
2013, Plaintiff and others moved to work on a project in Miami, Florida. (Id. at 109.) When he
2
arrived on site, Plaintiff noticed the same untrained and uncertified workers welding, and he
reiterated his concerns to Broggi. (Id.) Broggi and Cooper told Plaintiff several times that it was
too costly to have the employees trained and certified. (Id. at 111.) In response, Plaintiff sent
“numerous” emails to both again expressing his concern. (Id. at 112.) He also had telephone and
in-person conversations with Division Safety Manager Greg McElroy, and McElroy told him
that he had discussed Plaintiff’s safety concerns with Broggi and Cooper, and he promised that
the employees would be trained “in the very near future.” (Id.)
The employees were not trained and, by the end of the month, their performance had
deteriorated, posing a risk so severe as to warrant dismissing them or shutting down the jobsite
completely. (Id. at 112-13.) Plaintiff again expressed his concern via email and phone calls to
Cooper and others. Cooper became upset, and flew immediately to Miami from Ohio to witness
the situation firsthand. (Id. at 113.) Cooper observed, among other displays of incompetence,
employees unable to operate an off-road dump truck safely and without causing damage. (Id. at
113-14.) Cooper was nonetheless unconcerned, and he told Plaintiff that it would be easier to
hire five of the untrained employees and get rid of Plaintiff, which Plaintiff understood as a
threat to his job security. (Id.) Cooper also said that the employees were the best Defendant could
afford and still turn an adequate profit. (Id. at 114.)
Defendant had keen reason to ensure profitability—during this time it was in the process
of acquiring another company, and Cooper told Plaintiff that they needed to “do whatever was
possible” to get through the transition period. (Id. at 115.) Consequential here is that “whatever
was possible” included not accurately reporting safety incidents. (Id.) For example, at one point
untrained employees backed over the front of the bulldozer that Plaintiff was operating. (Id. at
116.) Normally, Plaintiff would report such an incident by calling a 1-800 hotline and then fill
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out a formal incident report. (Id. at 117-18.) Because the incident resulted in severe damage to
tires costing several thousand dollars, a write-up would have been considered a “major safety
incident” involving damage to company property. (Id. at 117.) Cooper nonetheless prohibited
Plaintiff from reporting the incident, and said that Plaintiff “needed to make the situation work,”
or else “be the person that left before the other employees did.” (Id. at 116-17.) Another time,
Plaintiff was thwarted from filling out and submitting an accurate incident report when Cooper
told him to label what was actually an accident, i.e. a truck rollover resulting in equipment
damage, as a “near miss” instead. (Id. at 127-29.)
And in March of 2014, at the Tomoka Farms Landfill Project in Florida (“Tomoka
Farms”), Superintendent Johnny Meier sent untrained employees into gaseous, hazardous
conditions, namely a 20-foot deep, unsecured, unbenched, unshored portion of the landfill. (Id. at
129-30.) Plaintiff became aware of the dangerous situation when Meier showed him pictures of
the site’s progress, which included pictures of the employees entering the dangerous conditions.
(Id. at 130.) Plaintiff was disturbed, and contacted Broggi, Cooper, and Site Manager Junos Reed
separately to register his concern. (Id.) Broggi and Cooper told Plaintiff not only not to submit an
incident report, but also to delete the pictures and not to divulge them to Reed. (Id.) Plaintiff told
them that he had already sent Reed the pictures, and both became “furious,” threatening
Plaintiff’s employment, and conveying to him that they were likely to fire him if he “did not get
on board.” (Id. at 131.) Concerned about his job security, and out of loyalty to his employer,
Plaintiff acquiesced to Broggi and Cooper, and did not report this incident. (Id.)
In mid-May of 2014, at Tomoka Farms, Plaintiff noticed a lump in his neck that was
rapidly increasing in size. (Lightner Dep., Doc. 48-1 at 80-81.) He went to a local hospital and
was told by a doctor to have the growth examined immediately. (Id. at 81.) Plaintiff told Broggi
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that he needed to have the growth looked at but, because he wanted to make certain that work
was going as planned onsite, he said he would wait until his scheduled week off to see a doctor.
(Id.) During his next scheduled time off, he flew home to Ohio to see his primary care physician
to remove and biopsy the lump, which was later found to be benign. (Id. at 82, 85-86.) He did
some work offsite while in Ohio, billing his time to the Tomoka Farms project because he did
not have the cost code to a new project, of which there were several under discussion, including
one in Volusia County, Florida for which he was expecting paperwork. (Id. at 84.)
On Thursday, May 29, 2014, Plaintiff spoke with Cooper in Cooper’s office in Findlay,
Ohio, and they discussed him needing three to four weeks of time off to recover after his
lumpectomy. (Id. at 88.) Cooper seemed supportive. (Id.) The next day, Cooper called Plaintiff to
notify him that Defendant had not been awarded a contract and that, because there was still no
cost code for a new project and, because Plaintiff refused to use paid time off or vacation, and
because Defendant did not want Plaintiff billing for either Tomoka Farms or general overhead,
Plaintiff was likely to be furloughed. (Id. at 90-91.) This struck Plaintiff as odd, because he was
told by one of the untrained workers that the worker was being sent to a project on the west coast
of the United States, while another untrained worker said the worker was going to the very
project Cooper just said had not been awarded to Defendant. (Id.) In any event, on Monday, June
2, 2014, Cooper informed Plaintiff that he was being furloughed. 1 Cooper went to pick up
Defendant’s property in Plaintiff’s possession the next day. (Id. at 93-94.)
B. Procedural History
Plaintiff initiated this lawsuit on October 27, 2014, asserting causes of action for
interference in violation of the Family Medical Leave Act (“FMLA”), retaliation in violation of
1
This Opinion uses “terminate,” “furlough,” “discharge” (and their variants) interchangeably.
5
FMLA, and a violation of Ohio common law for wrongful discharge in contravention of public
policy. (Compl., Doc. 1 at 2-4.) Plaintiff seeks damages amounting to more than $75,000
(including compensatory damages, back wages, interest, fringe benefits, and fees), and
reinstatement to his prior position of employment. (Id. at 5.) Defendant now moves for summary
judgment on all claims. (Def.’s Mot. for Summ. J., Doc. 36.)
II. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) provides that the Court "shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” A fact is deemed material only if it “might
affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United States,
20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986)).
The necessary inquiry for this Court is “whether ‘the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting
Anderson, 477 U.S. at 251-52). In evaluating such a motion, the evidence must be viewed in the
light most favorable to the nonmoving party. United States S.E.C. v. Sierra Brokerage Servs.,
Inc., 712 F.3d 321, 327 (6th Cir. 2013). The court reviewing a summary judgment motion need
not search the record in an effort to establish the lack of genuinely disputed material facts.
Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404 (6th Cir. 1992). Rather, the burden is on the
nonmoving party to present affirmative evidence to defeat a properly supported motion, Street v.
J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989) (citation omitted), and to designate
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specific facts that are in dispute. Anderson, 477 U.S. at 250 (citation omitted); Guarino, 980 F.2d
at 405.
To survive the motion, the nonmoving party must present “significant probative
evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.”
Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993). As such, the mere existence
of a scintilla of evidence in support of the opposing party’s position is insufficient to survive the
motion; there must be evidence on which the jury could reasonably find for the opposing party.
See Anderson, 477 U.S. at 251 (citation omitted); Copeland v. Machulis, 57 F.3d 476, 479 (6th
Cir. 1995).
III. ANALYSIS
A. The FMLA: Theories of Recovery
As to Plaintiff’s FMLA claims, the Sixth Circuit recognizes two discrete theories of
recovery:
(1) the so-called “interference” or “entitlement” theory arising from [29 U.S.C.A.]
§ 2615(a)(1), and (2) the “retaliation” or “discrimination” theory arising from §
2615(a)(2). Hunter [v. Valley View Local Sch., 79 F.3d [688,] 691; Arban, 345
F.3d at 400–01. Although we have held that a claim for retaliatory discharge is
cognizable under either theory,6 the requisite proofs differ. The interference
theory has its roots in the FMLA's creation of substantive rights, and “[i]f an
employer interferes with the FMLA-created right to medical leave or to
reinstatement following the leave, a violation has occurred,” regardless of the
intent of the employer. Arban [v. West Pub. Corp.], 345 F.3d [390,] 401. The
central issue raised by the retaliation theory, on the other hand, is “whether the
employer took the adverse action because of a prohibited reason or for a
legitimate nondiscriminatory reason.” Edgar v. JAC Prods., Inc., 443 F.3d 501,
508 (6th Cir.2006) (citation and internal quotation marks omitted). In contrast to
the interference theory, “[t]he employer's motive is relevant because retaliation
claims impose liability on employers that act against employees
specifically because those employees invoked their FMLA rights.” Id.
Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 282 (6th Cir. 2012). The Court discusses
each theory seriatim.
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1. Interference
The FMLA entitles qualifying employees to up to twelve weeks of unpaid leave each
year if the employee has a “serious health condition that makes the employee unable to perform
the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). To establish a prima
facie case of an FMLA-interference claim, a plaintiff must demonstrate that: “(1) she was an
eligible employee, (2) the defendant was an employer as defined under the FMLA, (3) she was
entitled to leave under the FMLA, (4) she gave the employer notice of her intention to take leave,
and (5) the employer denied or interfered with the employee’s FMLA benefits to which she was
entitled.” Wallace v. FedEx Corp., 764 F.3d 571, 585 (6th Cir. 2014) (quoting Edgar v. JAC
Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006) (alterations omitted)).
Defendant argues that Plaintiff’s interference claim fails as a matter of law because he
was never denied leave, which leaves the fifth prong of the FMLA interference test unsatisfied.
According to Defendant, when an employee has been granted the leave to which he was entitled
and there is no evidence that he would have been denied additional leave if he requested it, the
employee’s claim is not cognizable under an interference theory, but only under a retaliation
theory. (Doc. 36-1 at 20-21 (citing Seeger, 681 F.3d 274, 282 (6th Cir. 2012).) Defendant bases
this argument on its assertion that Plaintiff did not apply for or request FMLA leave prior to
being furloughed and, therefore, he was not denied any requested leave under the FMLA. (Id. at
21.)
Plaintiff retorts that, under the FMLA, the key question is whether the employee provided
the employer with information sufficient to reasonably apprise the employer of the employee’s
request for time off due to a serious health condition. (Doc. 48 at 24-25 (citing Brohm v. JH
Props., Inc., 149 F.3d 517, 523 (6th Cir. 1998) (quoting Manuel v. Westlake Polymers Corp., 66
8
F.3d 758, 764 (5th Cir. 1995)).) Thus, argues Plaintiff, whether Plaintiff brought up his need for
leave with Defendant’s human resources department is not dispositive of whether Defendant had
notice of Plaintiff’s need for leave.
But whether Plaintiff ever spoke with human resources is off topic; notice is not a direct
concern here.2 Defendant’s assertion that it never thwarted Plaintiff from exercising his FMLA
rights, however, is topical. It is also fatal to the interference claim. In Seeger, the Sixth Circuit
considered an appeal of a district court’s grant of a defendant’s motion for summary judgment in
a FMLA lawsuit in which the plaintiff made no distinction between his retaliation and
interference claims, and it affirmed the district court’s decision to conflate the two and address
one claim of retaliation. Seeger, 681 F.3d at 280. This is because, as spelled out in Arban:
The “entitlement” or “interference” theory is derived from the FMLA’s creation
of substantive rights. If an employer interferes with the FMLA-created right to
medical leave or to reinstatement following the leave, a violation has occurred.
King v. Preferred Technical Grp., 166 F.3d 887, 891 (7th Cir. 1999).
The issue is simply whether the employer provided its employee
the entitlements set forth in the FMLA—for example, a twelveweek leave or reinstatement after taking a medical leave. Because
the issue is the right to an entitlement, the employee is due the
benefit if the statutory requirements are satisfied, regardless of the
intent of the employer.
Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998).
345 F.3d at 401.
2
Insofar as Defendant insinuates that Plaintiff’s needing time off to recover after a lumpectomy
might not have been a qualifying event under the FMLA (see Doc. 36-1 at 24 (“[Plaintiff] may
have contemplated needing FMLA leave in the future, pending the results of his biopsy, but
arguably this episode was not a FMLA event.”)), the Court resolves the argument, as it must, in
the non-movant’s favor. See Sierra Brokerage, 712 F.3d at 327. And to be sure, an employee
need not utter magic words to notify an employer of a FMLA leave request. Brenneman v.
MedCentral Health Sys., 366 F.3d 412, 421 (“[T]he critical test for substantively-sufficient
notice is whether the information that the employee conveyed to the employer was reasonably
adequate to apprise the employer of the employee's request to take leave for a serious health
condition that rendered him unable to perform his job.”) (citations omitted).
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Here, although Plaintiff alleges that he was terminated because he indicated he needed
leave, nowhere does he allege that his requests for leave were denied or that his rights under the
FMLA were ever frustrated. And how could they have been? He was terminated merely two
business days after apprising Defendant of his need for medical leave. (Doc. 48 at 6.) Because
Plaintiff has not alleged that Defendant ever denied or otherwise interfered with his rights under
the FMLA, the Court finds that Plaintiff’s interference claim fails as a matter of law, and it thus
GRANTS Defendant’s motion as to Plaintiff’s FMLA-interference claim.
2. Retaliation
In addition to a FMLA-interference claim, a plaintiff may recover under the FMLA for
retaliation. Plaintiff has not set forth direct evidence of discrimination, so the familiar McDonnell
Douglas burden-shifting framework applies. See Demyanovich, 747 F.3d at 432; Skrjanc v.
Great Lakes Power Serv. Co., 272 F.3d 309, 313-16 (6th Cir. 2001). Under this framework, a
plaintiff first bears the burden to make out a prima facie case of FMLA retaliation by showing
that: “(1) she availed herself of a protected right under the FMLA by notifying [the employer] of
her intent to take leave, (2) she suffered an adverse employment action, and (3) that there was a
causal connection between the exercise of her rights under the FMLA and the adverse
employment action.” Edgar, 443 F.3d at 508.
Once the employee satisfies these three requirements, “the burden shifts to the employer
to proffer a legitimate, nondiscriminatory rationale for discharging the employee.” Id. The
plaintiff must then rebut the defendant’s legitimate nondiscriminatory reason for termination by
pointing to evidence that the reason was pretextual. See Demyanovich, 747 F.3d at 433. A
plaintiff may establish pretext by showing that the proffered nondiscriminatory reason had no
basis in fact, was insufficient to motivate the adverse action, or did not actually motivate the
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action. Harris v. Metro. Gov’t of Nasvhille & Davidson Cnty., Tenn., 594 F.3d 476, 486 (6th Cir.
2010). The inquiry is informal and commonsense. Chen v. Dow Chem. Co., 580 F.3d 394, 400
n.4 (6th Cir. 2009) (noting that “it is important to avoid formalism in its application, lest one lose
the forest for the trees. Pretext is a commonsense inquiry: did the employer fire the employee for
the stated reason or not?”) (emphasis added).
Defendant argues that Plaintiff’s prima facie case is unsatisfied as to causation and that,
even if Plaintiff had satisfied his burden, he cannot rebut Defendant’s legitimate,
nondiscriminatory rationale for discharging Plaintiff, i.e. a workforce reduction. This
memorandum discusses the arguments in turn.
a. Plaintiff Has Met His Prima Facie Burden to Prove Causation
The Court finds that Plaintiff has met his prima facie burden as to causation based on
temporal proximity alone. Plaintiff was furloughed merely two business days after notifying
Defendant that he might need to take medical leave. Temporal proximity is, expectedly,
especially germane to determining causation, and courts regularly find that temporal proximity
alone is sufficient to meet this prong of a plaintiff’s prima facie case. See Skrjanc, 272 F.3d at
314 (finding proper the district court’s concluding that “the proximity in time between [the
plaintiff’s] request for leave and his discharge constitutes indirect evidence of a causal
connection between his exercise of a right under the FMLA and the adverse employment
decision.”) (citing Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir. 1990)).
Because of the extreme proximity between the two events, merely two days, the Court
finds that there is enough evidence to submit to a factfinder to determine whether there was a
causal connection between Plaintiff’s termination and his notifying Defendant of his intent to
exercise his FMLA rights.
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b. Defendant’s Proffered Rationale Might Be Pretextual
Pretext may be inferred from “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in an employer’s proffered reasons. Morgan v. Hilti, Inc., 108
F.3d 1319, 1323 (10th Cir. 1997) (quoting Olson v. Gen. Elec. Aerospace, 101 F.3d 947, 951-52
(3rd Cir. 1996)). The ultimate question is: “did the employer fire the employee for the stated
reason or not?” Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009). At summary
judgment, the question is simply “whether the plaintiff has produced evidence from which a jury
could reasonably doubt the employer’s explanation.” Id.
Defendant asserts that it discharged Plaintiff due to a reduction in force. Such reductions
have regularly been found to be legitimate, nondiscriminatory reasons for discharge and, in the
Sixth Circuit, because a workforce reduction is “the most common legitimate reason for . . .
discharge[,] . . . the plaintiff must provide additional direct circumstantial, or statistical evidence
tending to indicate that the employer singled out the plaintiff for discharge for impermissible
reasons.” Geiger v. Tower Auto., 579 F.3d 614, 624 (6th Cir. 2009) (citations and internal
quotation marks omitted); cf. Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219,
1221 (2d Cir. 1994) (“But sometimes the validity of a company’s legitimate reduction masks, in
an individual case, a discriminatory animus.”).
In rebuttal to Defendant’s arguments, Plaintiff asserts: that Defendant has not produced a
single document discussing the need to eliminate his position; that the reduction in force was a
reduction of one, i.e. Plaintiff’s position was the only position eliminated; that Cooper has never
recommended any other employee be eliminated in a workforce reduction; that, at the time of his
termination, Defendant had posted a listing for a site superintendent position that it did not
remove until months after Plaintiff was terminated (Cooper Dep., Doc. 48-8 at 23, 28); that
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Plaintiff’s work performance was uniformly good to excellent; that there were actually no
geographical limitations for site superintendents (Id. at 68); and that Cooper changed his
testimony under oath, walking back his prior testimony that he and Broggi discussed terminating
Plaintiff after learning about his need for medical leave instead of before. (Id. at 61.)
The above evidence demonstrates the sorts of inconsistencies and implausibilities proving
pretext. What kind of “workforce reduction” is a reduction of one? Why is there no tangible
evidence of the planned reduction? If Defendant discharged Plaintiff to save costs, why would it
have listed an open position at Plaintiff’s job title and skill level months before and after
discharging him? Just how convenient is it that Cooper changed his testimony to say that the plan
to terminate Plaintiff was hatched before, rather than after, Plaintiff notified Defendant that he
needed medical leave? A juror might rightly ask herself these questions, among others, and
determine that Defendant’s proffered rationale for discharging Plaintiff was pretextual. See
Morgan, 108 F.3d at 1323. As such, the Court DENIES Defendant’s motion as to Plaintiff’s
FMLA-retaliation claim.
B. Wrongful Termination in Contravention of Public Policy
Because “at-will employment may be terminated by the employer at any time for good
cause, bad cause, or no cause at all,” Sutton v. Tomco Machining, Inc., 950 N.E.2d 938, 942 ¶ 7
(Ohio 2011), discharging an employee does not normally confer a cause action for damages. But:
if an employee is discharged . . . 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, a cause of action for
wrongful discharge in violation of public policy may exist as an exception to the
general rule.
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Dohme v. Eurand Am., Inc., 956 N.E.2d 825, 829 ¶ 11 (Ohio 2011). To succeed on a claim of
wrongful discharge in contravention of public policy, a plaintiff must prove each of the
following:
1. That 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).
4. The employer lacked overriding legitimate business justification for the
dismissal (the overriding justification element).
Id. ¶¶ 12-16 (citing Painter v. Graley, 639 N.E.2d 51, 57 fn.8 (Ohio 1994) (quotation marks and
citations omitted). The clarity and jeopardy elements are conclusions of law, while the causation
and overriding-justification elements are findings of fact. Id. ¶ 17 (citation omitted).
Parties do not dispute that Plaintiff has met his burden as to the clarity element. The
statutes Plaintiff cites to support his claim of wrongful discharge are sections 4101.11, 4101.12
and 3734 of the Ohio Revised Code, and 29 C.F.R. §§ 24.102 and 1910.120. (Compl., Doc. 1 ¶¶
30-31;3 Response in Opp’n, Doc. 48 at 27), which require employers to ensure a safe work
environment, and which evince a clear public policy, i.e. promoting workplace safety. Blair v.
Honda of Am. Mfg., Inc., No. 14-01-33, 2002 WL 396531, at *6 (Ohio Ct. App. 3d Dist., March
14, 2002) (“The Ohio Supreme Court has determined that ‘[t]he public policy of this state
demands that employees be provided with a safe work environment and that unsafe working
3
The Complaint refers to sections 4101.01 and 4101.02 of the Ohio Revised Code, which have
been repealed. The briefing indicates that those are certainly typos, and the Court will treat
Plaintiff’s claims as arising under sections 4101.11 and 4101.12 of the Code.
14
conditions be corrected.’”) (quoting Kulch v. Structural Fibers, Inc., 677 N.E.2d 308, 322 (Ohio
1997)).
Defendant nevertheless contends that Plaintiff cannot survive summary judgment as to
the jeopardy, causation, or lack of overriding justification elements of this claim. The Court
discusses the elements in turn.
1. Plaintiff Has Satisfied the Causation Element
There is no apparent, meaningful difference between the causation elements of Plaintiff’s
claims under the FMLA and the common law. Cf. Edgar, 443 F.3d at 508 (a plaintiff must prove
“that there was a causal connection between the exercise of her rights under the FMLA and the
adverse employment action.”); with Collins v. Rizkana, 652 N.E.2d 653, 657 (Ohio 1995) (a
plaintiff must prove that her termination “was motivated by conduct related to the public
policy”).
Although it purports to do so, Defendant’s motion does not squarely address causation,
but rather skips ahead to discuss the overriding legitimate business justification element instead
(see pt. 2, infra) and, oddly, relies on cases that are inapposite.4
The Court finds that Plaintiff has set forth sufficient evidence upon which a factfinder
could conclude that Defendant terminated him because of his endeavoring to promote workplace
safety. Cooper’s becoming upset after Plaintiff notified him of the dangerous incompetence of
onsite employees is probative. Also probative is Cooper telling Plaintiff that he needed to “make
4
There is no discussion of causation in the public policy claim, e.g., in Baker v. Medtronic, Inc.,
No. 1:07-CV-00286, 2009 WL 948800 (S.D. Ohio, Apr. 2, 2009), which was dismissed after the
court found the jeopardy element unsatisfied. 2009 WL 948800, at *10. Lartey v. Shoprite
Supermarkets, Inc., No. 08 Civ. 8272, 2011 WL 2416880 (S.D.N.Y., June 14, 2011), is likewise
not on topic, as it concerned race discrimination and retaliation claims under Title VII, 42 U.S.C.
§§ 2000e, et seq.—the discrimination claim was dismissed because it was based entirely on
hearsay, 2011 WL 2416880 at *3, while the retaliation claim was dismissed because the
employer was not aware that the plaintiff was being unfairly treated, id. at *2—neither of those
concerns are present here.
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the situation work” or else “be the person that left before the other employees did.” (Lightner
Dep., Doc. 48-1 at 116-17.) That Broggi and Cooper explicitly forbade Plaintiff from reporting
safety incidents, and that they overtly and unequivocally threatened his job if he did so, are also
probative. In sum, the Court finds that Plaintiff’s allegations are enough upon which a factfinder
could rightly conclude that Plaintiff was terminated because he was trying to promote workplace
safety, which means the Court finds that Plaintiff has met the causation element of this claim.
2. Plaintiff Has Satisfied the Lack of Overriding Legitimate Business Justification Element
As with causation, there is no meaningful difference between this element of Plaintiff’s
common and federal law claims, the element of federal law here being the “legitimate
nondiscriminatory” movement in McDonnell Douglas’s burden-shifting three-part suite. Cf.
Alexander v. Cleveland Clinic Found., No. 95727, 2012 WL 1379834, at *8 ¶ 49 (Ohio Ct. App.
8th Dist., Apr. 19, 2012) (“Even though [the plaintiff] has the reciprocal burden to demonstrate
causation and the lack of an overriding justification, once [the defendant] shows otherwise, we
find that Alexander has been able to meet his burden to overcome summary judgment”); with
Chen, 580 F.3d at 400 (“The burden is first on the plaintiff to demonstrate a prima facie case of
race discrimination; it then shifts to the employer to offer a legitimate, non-discriminatory
explanation for its actions; finally, the burden shifts back to the plaintiff to show pretext-i.e. that
the employer's explanation was fabricated to conceal an illegal motive.”) (citations omitted); and
Kirk v. Shaw Envtl., Inc., No. 1:09-cv-1405, 2010 WL 2162018, at *11 (N.D. Ohio, May 25,
2010) (in an Ohio claim of wrongful discharge, “[o]nce an employer presents a legitimate
justification for its discharge of an employee, a plaintiff must show that an employer's offered
nondiscriminatory reason for the termination is pretextual.”) (citation omitted).
16
Defendant’s and Plaintiff’s arguments here are the same as with a pretext analysis under
McDonnell Douglas, namely that Defendant’s rationale is a workforce reduction, which Plaintiff
argues is pretextual, see § III(A)(2)(b), supra. The Court’s analysis is also the same, see id., and,
therefore, the Court finds that Plaintiff has satisfied this element.
3. Plaintiff Has Satisfied the Jeopardy Element
Defendant argues that Plaintiff cannot satisfy the jeopardy element because the statutes
cited giving rise to his claim for relief provide adequate remedies for the wrongs alleged. The
provision of adequate remedies in the statute giving rise to a claim for wrongful termination
renders the wrongful-termination claim unviable as to the jeopardy element of a court’s analysis.
See, e.g., Leininger v. Pioneer Natl. Latex, 875 N.E.2d 36, 38 ¶ 27 (Ohio 2007) (“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.”); see also Wiles v. Medina Auto Parts, 773 N.E.2d 526, 531 ¶ 15 (Ohio 2002) (“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.”) (citations omitted).
Defendant asserts that there is no need to recognize a common-law cause of action for
wrongful discharge here, because OSHA “provides a remedy sufficient to protect its underlying
public policy.” (Doc. 36-1 at 11 (citing 29 U.S.C. § 660(c)(1).5) See, e.g., Carpenter v. Bishop
Well Servs. Corp., No. 2009CA00027, 2009 WL 4682253, at *4 ¶ 36 (Ohio Ct. App. 5th Dist.,
5
(c)
Discharge or discrimination against employee for exercise of rights under this chapter;
prohibition; procedure for relief
(1)
No person shall discharge or in any manner discriminate against any employee
because such employee has filed any complaint or instituted or caused to be
instituted any proceeding under or related to this chapter or has testified or is
about to testify in any such proceeding or because of the exercise by such
employee on behalf of himself or others of any right afforded by this chapter.
17
Dec. 7, 2009) (finding the Leininger standard unmet because “the federal OSHA statutes in [29
U.S.C. § 660(c)] provide for judicial review and a judicial remedy, as well as reinstatement, back
pay,” etc.).6
Plaintiff points to decisions finding otherwise. See, e.g., Pytlinski v. Brocar Prods., Inc.,
760 N.E.2d 385, 388 (Ohio 2002) (recognizing a plaintiff’s claim “that he was discharged in
violation of Ohio public policy favoring workplace safety because the discharge was predicated
upon his complaints regarding workplace safety.”); see also Blair, 2002 WL 396531, at *6 (“The
Ohio Supreme Court has determined that ‘[t]he public policy of this state demands that
employees be provided with a safe work environment and that unsafe working conditions be
corrected.’”) (quoting Kulch v. Structural Fibers, Inc., 677 N.E.2d 308, 322 (Ohio 1997)).
The Court finds that Plaintiff’s argument prevails. Pytlinski is still controlling, it is still
good law, and it could not be clearer: “Ohio public policy favoring workplace safety is an
independent basis upon which a cause of action for wrongful discharge in violation of public
policy may be prosecuted.” 760 N.E.2d at 388. See Blackburn v. Am. Dental Ctrs., 22 N.E.3d
1149, 1158 ¶ 29 (Ohio Ct. App. 10th Dist. 2014) (“We . . . find the trial court erred in concluding
that there is no Ohio public policy against retaliation by employers against employees who report
workplace conditions that jeopardize . . . safety. . . . In so holding, . . . we specifically disagree
with the Sixth District’s holding in Whitaker v. FirstEnergy Operating Co., [No. OT-12-021,
2013 WL 4792860, at *6 ¶ 25 (Ohio Ct. App. 6th Dist., Sept. 6, 2013)], which found those
6
Defendant also cites Whitaker v. First Energy Nuclear Operating Co., No. OT-12-021, 2013
WL 4792860, at *6 ¶ 25 (Ohio Ct. App. 6th Dist., Sept. 6, 2013) for this proposition, but it does
so in error. Whitaker found that sections 4101.11 and 4101.12 failed for lack of clarity, 2013 WL
at *6 ¶ 25 (“The statutes are very general and broad. Again, Dohme requires citation to specific,
clear law.”), but since Defendant has not argued that the relevant statutes are not sufficiently
clear, the Court will not engage in a clarity analysis sua sponte and, even if it did, it would find
that, as discussed below, Whitaker was flat-out wrongly decided. See, e.g., Blackburn v. Am.
Dental Ctrs., 22 N.E.3d 1149, 1158 ¶ 29 (Ohio Ct. App. 10th Dist. 2014), discussed below.
18
statutes too ‘general and broad’ to support such a claim”) (quoting Whitaker, 2013 WL 4792860
at *6 ¶ 25). See 2013 WL 4792860 at *11 ¶ 51 (“In Pytlinski, the Ohio Supreme Court
included R.C. 4101.11 and 4101.12 in its list of statutes that comprise ‘the abundance of Ohio
statutory and constitutional provisions that support workplace safety and form the basis for
Ohio's public policy.’ Pytlinski at 79, 760 N.E.2d 385. While the majority determines that these
statutes are ‘very general and broad,’ its argument is belied by the holding in Pytlinski.”)
(Yarbrough, J., dissenting in part). Because Pytlinski provides for a standalone cause of action
for wrongful discharge full stop, the Court finds that Plaintiff has met the jeopardy element and,
thus, DENIES Defendant’s motion as to Plaintiff’s claim of wrongful discharge in contravention
of public policy.
IV. CONCLUSION
For the aforementioned reasons, the Court GRANTS in part and DENIES in part
Defendant’s Motion for Summary Judgment: the Court GRANTS the motion as to FMLA
interference, DENIES the motion as to FMLA retaliation, and DENIES the motion as to
wrongful discharge in contravention of public policy.
IT IS SO ORDERED.
Dated: November 14, 2016
s/Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT COURT
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