Summary
holding that an “employee must have been an employee at will” in order to bring a wrongful discharge claim based on public policy
Summary of this case from Hagen v. Siouxland Obstetrics & Gynecology, P.C.Opinion
No. 94-405
Submitted March 8, 1995 —
Decided July 28, 1995.
APPEAL from the Court of Appeals for Hamilton County, No. C-910635.
The Zoological Society of Cincinnati contains many different areas, including the bear and walrus areas, bird house, ape house, cat house, elephant house, reptile house, monkey and gibbon islands, insectarium, and aquarium. The zoo employs approximately fifty animal keepers, all of whom are covered by a collective bargaining agreement between the zoo and Local 282, Cincinnati Zoological Society Employees, Ohio Council 8, American Federation of State, County and Municipal Employees, AFL-CIO.
Each day, the animal keepers from each area of the zoo complete written daily reports, which describe the daily activities in that area, detail the health status of the animals, request necessary maintenance, and contain other miscellaneous remarks pertaining to that area. Copies of these reports are reviewed by Edward J. Maruska, the zoo's executive director; Robert Lotshaw, the general curator, who is responsible for the care of the animals; and Jack Huelsman, the director of technical operations, who is responsible for all maintenance work.
Plaintiff-appellee, Leigh Ann Haynes, and Laurie Stober were animal keepers assigned to the bear and walrus areas of the zoo. Their duties involved feeding the animals and keeping the animals' areas clean. When necessary, they also were assigned temporarily to the bird house.
On March 28, 1990, Stober stopped in front of the den of a male polar bear named Icee and, through the bars of the cage, offered the bear a grape that was in her hand. The zoo had kept the polar bear in this inside den temporarily, pending federal agency approval to ship the bear to Columbus on a breeding loan. While Stober was offering the polar bear the grape, the bear pulled Stober's hand through the bars and bit off a portion of her arm. Haynes, who was with Stober when the attack occurred, agreed to abide by Stober's request not to tell anyone how the accident happened.
Haynes' formal statements to Maruska on March 29, 1990 and to an investigator from the federal Occupational Safety and Health Administration on April 11, 1990 asserted that the accident had occurred when Stober was trying to give the bear water from a hose. On May 4, 1990, Haynes gave an investigator from the Occupational Safety and Health Administration a written statement, revealing that Stober was trying to feed the bear from her hand when the attack occurred and that animal keepers commonly hand-fed the bears at the zoo. In this statement, Haynes alluded to her lack of training in handling or feeding the bears. On May 31, 1990, Haynes, in the presence of Huelsman, informed two agents from the United States Department of Agriculture ("USDA") that Stober had been attacked while trying to give the bear a grape between her fingers. Haynes indicated that the alleged poor conditions inside the bear den contributed to Stober's accident. Later that evening, Haynes filed a written report with the USDA, which described the accident and indicated that the zoo had provided inadequate training for the caretaking of bears. Before May 31, 1990, zoo officials did not know how Stober's accident had really happened.
On June 1, 1990, Maruska decided to transfer Haynes from the bear and walrus areas to the bird house because of unspecified safety concerns. On Monday, June 4, 1990, Lotshaw instructed Haynes to take a day off and informed her that she had been assigned temporarily to the bird house, beginning June 6, 1990. After Lotshaw would not allow her to return to the bear and walrus areas the next day, Haynes complained to the federal Occupational Safety and Health Administration pursuant to Section 11(c) of the Occupational Safety and Health Act ("OSHA"), Section 660(c), Title 29, U.S. Code, alleging that she had been wrongfully transferred because she had cooperated with federal agencies in an accident investigation.
Haynes again reported to the bear and walrus areas on June 6, refused to work unless zoo officials informed her of their specific safety concerns, and left after Lotshaw did not tell her why they considered her a safety concern. On June 6, 1990, Lotshaw suspended Haynes without pay for insubordination and for failing to contest her transfer through the grievance procedure, including binding arbitration, pursuant to the terms of the collective bargaining agreement. On June 8, 1990, during a meeting in which zoo officials and the union president were present, Haynes was informed that she could report to the bird house or remain suspended.
The collective bargaining agreement that governed the terms of Haynes' employment stated that insubordination was grounds for discharge.
That same day, Haynes sued the zoo in the Court of Common Pleas of Hamilton County, asserting that the zoo had demoted and suspended her in retaliation for reporting alleged unsafe working conditions to the zoo and federal officials in violation of the Ohio Whistleblower Statute, R.C. 4113.52, and public policy as enunciated in Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981. Seeking reinstatement as a bear and walrus keeper, Haynes requested compensatory and punitive damages and sought a temporary restraining order and a permanent injunction to enjoin the zoo from any further retaliation and to ensure her safe working conditions. During the next few days, Haynes filed two grievances against the zoo, pursuant to the collective bargaining agreement.
During the hearing on the request for a temporary restraining order, which began on June 13, 1990, the parties agreed that Haynes would return as an animal keeper in the walrus area and the insectarium on June 14, 1990, and that the zoo's veterinarian would monitor Haynes' activities.
On August 10, 1990, the trial court granted Haynes' motion for an injunction and ordered the zoo to reinstate her as a full-time keeper in the walrus area or to reinstate her to her original position. The zoo reinstated her as a full-time walrus keeper. Later, pursuant to the settlement of her OSHA claim, the zoo fully reinstated Haynes as a bear and walrus keeper, beginning September 19, 1990. Shortly thereafter, Haynes took a leave of absence for a couple of weeks because she did not feel well.
While on the stand during the bench trial in October 1990, Haynes resigned as an employee at the zoo, stating for the first time that she could no longer work at the zoo. Finding that Haynes had been constructively discharged, the trial court ruled that the zoo had retaliated against Haynes in violation of R.C. 4113.52 and awarded her $3,083.68 in back pay and $29,640 in front pay and benefits. Pursuant to Greeley, supra, the court also awarded Haynes $10,000 for emotional distress and suffering. Haynes v. Zoological Soc. of Cincinnati (C.P. 1990), 567 N.E.2d 1048.
Upon appeal, the court of appeals affirmed the judgment of the trial court. The court of appeals determined that Haynes was entitled to the remedies provided by Ohio's Whistleblower Statute, because she had followed the procedures required by that statute. Deciding that R.C. 4113.52 is not the exclusive remedy for whistleblowers, the court held that Haynes could recover additional damages pursuant to Greeley, supra.
Finding its judgment in conflict with the decisions of the Court of Appeals for the Eighth District in Contreras v. Ferro Corp. (Oct. 28, 1993), Cuyahoga App. Nos. 64394, 64424 and 64883, unreported, 1993 WL 437585; the Court of Appeals for the Eleventh District in Murray v. Clinton Petroleum Co. (July 16, 1993), Portage App. No. 92-P-0086, unreported; and the Court of Appeals for the Twelfth District in Bear v. Geetronics, Inc. (1992), 83 Ohio App.3d 163, 614 N.E.2d 803, the court of appeals certified the record of the cause to this court for review and final determination.
Helmer, Lugbill, Martins Neff Co., L.P.A., James B. Helmer, Jr., Ann Lugbill and Amy Wottowa Larson, for appellee.
Taft, Stettinius Hollister, William K. Engeman, W. Stuart Dornette and Doreen Canton, for appellant.
Spater, Gittes, Schulte Kolman and Frederick M. Gittes; and Louis A. Jacobs, urging affirmance for amicus curiae, Ohio Employment Lawyers Association.
Kenneth S. Resnick, urging reversal for amicus curiae, General Electric Company.
Dinsmore Shohl, Neal D. Baker and Susan J. Luken, urging reversal for amicus curiae, Ohio Manufacturers' Association and the Ohio Chamber of Commerce.
The issues certified to this court are "whether R.C. 4113.52 is the exclusive remedy for whistleblowers and whether R.C. 4113.52 preempts the formation of a Greeley v. Miami Valley Maintenance [Contrs., Inc.] (1990), 49 Ohio St.3d 228, 551 N.E.2d 981, public-policy exception to the employment-at-will doctrine within the specific context of whistleblowing."
We are unable to reach the certified questions in this case for the simple reason that those questions were improperly certified. We say this because Haynes is a member of a union and not an employee at will. Thus, she cannot bring a Greeley cause of action. See Greeley, supra, paragraph two of the syllabus. The fact that she cannot bring a Greeley cause of action, of course, makes moot the question of whether R.C. 4113.52 provides the exclusive remedy for whistleblowers.
In Greeley, an employer allegedly had fired an at-will employee solely because of a court-ordered child support wage assignment of the employee's wages. Pursuant to R.C. 3113.213(D), which prohibits an employer from using an order to withhold personal earnings as a basis for discharging an employee, the employee sued the employer for his wrongful discharge. Stressing that R.C. 3113.213(D) merely imposes a modest fine against an employer who violates the statute and fails to provide a remedy for the aggrieved employee, this court held that the employee stated a cause of action in tort for wrongful discharge. Id., 49 Ohio St. 3 d. at 233, 235, 551 N.E.2d at 986, 987. We reasoned that the absence of a civil remedy for violations of R.C. 3113.213(D) would frustrate the policy and purposes of child support enforcement and that it was "our job to enforce, not frustrate, that policy." Id. at 233-234, 551 N.E.2d at 986. Within this context, we held that "[p]ublic policy warrants an exception to the employment-at-will doctrine when an employee is discharged or disciplined for a reason which is prohibited by statute." Id., paragraph one of the syllabus.
Greeley provides an exception to the employment-at-will doctrine. Thus, as stated above, in order for an employee to bring a cause of action pursuant to Greeley, supra, that employee must have been an employee at will. The identifying characteristic of an employment-at-will relationship is that either the employer or the employee may terminate the employment relationship for any reason which is not contrary to law. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d 150; Boggs v. Avon Products, Inc. (1990), 56 Ohio App.3d 67, 564 N.E.2d 1128. Haynes clearly does not qualify as an employee at will. As a member of a union, the terms of her employment relationship were governed by a collective bargaining agreement. That agreement specifically limited the power of the zoo to terminate Haynes and, as a result, took her outside the context of employment at will. Because she was not an employee at will, she is outside the class of employees for whom Greeley provides protection.
For the foregoing reasons, we reverse the judgment of the court of appeals with respect to the Greeley claim and enter judgment in favor of the zoo with respect to that claim.
Cause dismissed.
MOYER, C.J., DOUGLAS, YOUNG, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
JOHN C. YOUNG, J., of the Tenth Appellate District, sitting for RESNICK, J.