Bennett v. Columbiana Cnty. Coroner

• Decision Date: 30 September 2016
• Docket Number: No. 14 CO 0039.,14 CO 0039.
• Parties: Susan BENNETT, Plaintiff–Appellant v. COLUMBIANA COUNTY CORONER, et al., Defendants–Appellees.
• Court: D.C. Court of Appeals

72 N.E.3d 242
2016 Ohio 7182

Susan BENNETT, Plaintiff–Appellant
v.
COLUMBIANA COUNTY CORONER, et al., Defendants–Appellees.

No. 14 CO 0039.

Court of Appeals of Ohio, Seventh District, Columbiana County.

Sept. 30, 2016.

72 N.E.3d 245

Brian D. Spitz, Fred M. Bean, The Spitz Law Firm, LLC, Warrensville Heights, OH, for Plaintiff–Appellant.

James A. Climer, Frank H. Scialdone, Mazenec, Raskin & Ryder Co., L.P.A., Cleveland, OH, for Defendants–Appellees.

CHERYL L. WAITE, MARY DeGENARO, and CAROL ANN ROBB, JJ.

OPINION

WAITE, J.

{¶ 1} Appellant Susan Bennett timely appeals the decision of the trial court which granted summary judgment in favor of the Columbiana County Coroner, William Graham, Jr., M.D.; Columbiana County; Columbiana County Board of Commissioners Office; Columbiana County Auditor's Office and Columbiana County Coroner's Office (collectively, "Appellees"). Appellant raises five assignments of error, asserting summary judgment was inappropriate because: she established a prima facie case showing whistleblower retaliation pursuant to R.C. 4113.52 ; there are genuine issues of material fact regarding her whistleblower retaliation, constructive discharge and intentional infliction of emotional distress claims; and genuine issues of material fact remain regarding Dr. Graham's individual immunity.

{¶ 2} Based on the following, the trial court did not err in granting summary judgment in favor of Appellees on Appellant's claims for whistleblower protection under R.C. 4113.52, constructive discharge, intentional infliction of emotional distress and the immunity of Dr. Graham. Appellant's assignments of error are without merit and the judgment of the trial court is affirmed.

Factual Background

{¶ 3} For purposes of this appeal, which is before us pursuant to the trial court's decision to grant a motion for summary judgment, we look to Appellant's version of the relevant facts. Appellant began employment as an executive secretary and bookkeeper with the Columbiana County Coroner in 2006. Her job duties included receptionist, bookkeeping and general housekeeping.

{¶ 4} Appellant worked alongside Brian Fullum ("Fullum") during a portion of her tenure at the coroner's office. Fullum was a coroner's investigator who also had complained about certain conduct by Dr. Graham which allegedly occurred during the time Fullum was employed by the coroner's office. Fullum filed an employment law action against Columbiana County Coroner's Office and Dr. Graham, Columbiana County Case No. 2011 CV 00806. The matter has already been decided by this Court. See Fullum v. Columbiana County Coroner, et al., 2014-Ohio-5512, 25 N.E.3d 464 (7th Dist.). Appellant filed her deposition transcript from the Fullum

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matter in the instant case ("Appellant Fullum Depo.").

{¶ 5} Based on issues arising out of her employment, Appellant initiated the present suit against Appellees on May 21, 2012. Appellant asserted three causes of action against Appellees: retaliation in violation of R.C. 4112.052, retaliatory constructive discharge, and intentional infliction of emotional distress. Appellees filed a joint answer, denying Appellant's claims and raising a number of defenses, including immunity.

{¶ 6} The basis for Appellant's claims are five complaints she made concerning Appellees' conduct during her tenure with the coroner's office. Appellant only addresses three of those complaints on appeal, and so has waived any argument regarding the two remaining complaints. Hence, the trial court's decision as to those is affirmed.

{¶ 7} For the sake of clarity, we will use the same labels applied by the trial court in addressing each of the incidents Appellant discussed on appeal.

Wagner Death Certificate

{¶ 8} The first incident, labeled by the trial court as the "Wagner Death Certificate," occurred about one year after her employment with the coroner's office began. Mr. Wagner was involved in an automobile accident in Columbiana County which resulted in severe injuries and ultimately lead to his death. Appellant alleges that the fire dispatcher on duty failed to order a helicopter life flight as was directed by emergency responders. Two days after Mr. Wagner's death, Appellant reported to Dr. Graham verbally her belief that the delay and failure to order a life flight contributed to Wagner's death and that this was not reported on the death certificate. In her deposition, Appellant stated, "I told him I had concerns about Mr. Wagner's death and that—and I told him that I had contacted both fire departments * * * and I said it seemed odd that this gentleman with those—with that degree of injury, was not Life Flighted to a trauma center and so I told him my concerns." (Bennett Depo., p. 23.) Once Dr. Graham was notified, according to Appellant's deposition, he asked another staff member to get a copy of the log of the incident from Lisbon dispatch. Appellant also stated that the staff member obtained the log report and spoke to the dispatcher who had been on duty and that all of this information was reported back to Dr. Graham. (Bennett Depo., pp. 25–27.)

{¶ 9} Appellant stated that after Mr. Wagner's autopsy report came back from Cuyahoga County she reviewed the report. When the final death certificate issued she was dissatisfied that the cause of death was not attributed to delay in treatment and again spoke with Dr. Graham about her concerns. (Bennett Depo., pp. 27–28.) Dr. Graham indicated that in his opinion, delay was not a factor. (Bennett Depo., p. 28.)

{¶ 10} She then raised the issue during a meeting she arranged with the Columbiana County Board of Commissioners and county auditor on August 24, 2011. She followed up her meeting with these officials with a written letter to Dr. Graham on September 1, 2011. Appellant also met with the Ohio Bureau of Criminal Investigation (BCI) on September 28, 2011 regarding her concerns.

{¶ 11} Appellees contend that Dr. Graham conducted an investigation of the incident after being notified by Appellant and concluded the alleged delay had no bearing on Mr. Wagner's cause of death. Appellees also contend Appellant did not comply with the written notice requirement set forth in R.C. 4113.52 before arranging a meeting with the Columbiana County

72 N.E.3d 247

Board of Commissioners and county auditor.

Pistol in Office

{¶ 12} A suicide occurred in 2008 which involved a World War II era Luger handgun. According to Appellant's deposition in the Fullum case, the office manager, Fran Rudibaugh, was interested in giving the gun to Dr. Graham as a gift. (Appellant Fullum Depo., pp. 69–70.) Appellant also stated that it was Fullum who originally brought the gun into the office and gave it to Rudibaugh in a paper bag where it sat for about three weeks before Rudibaugh presented it to Dr. Graham. (Appellant Fullum Depo., pp. 69–70.) Appellant discussed the issue with Fullum when he first brought the gun and said that she did not know where the gun was stored until Rudibaugh presented it from under her desk to Dr. Graham, some three weeks later. (Appellant Fullum Depo., pp. 69–71.) In her deposition in this case, Appellant stated that after being presented with the gun, Dr. Graham said, "[s]o how are we going to steal this?" (Bennett Depo., p. 47.) Appellant did not discuss the issue with Dr. Graham or at the August 24, 2011, meeting with the commissioners as, approximately three weeks after Dr. Graham was presented with the gun, Appellant went to the sheriff's office to inquire about the location and custodial history of the gun. Appellant testified that after that, "the county prosecutor called [Appellant] and told [Appellant] to tell [Dr. Graham] to surrender the gun to the sheriff's department." (Appellant Fullum Depo., p. 74.) Appellant discussed the gun incident in the written letter to Dr. Graham dated September 1, 2011.

{¶ 13} Appellees point out that the gun was ultimately found in the evidence locker at the Salem Police Department. They argue that, again, Appellant failed to comply with all of the reporting requirements of R.C. 4113.52.

Altered Death Certificate

{¶ 14} Appellant's third complaint against Dr. Graham related to a death certificate that was allegedly altered. Appellant claims she was given a death certificate to mail listing the cause of decedent's death as accidental due to his fall from a bed at Salem Community Hospital. She contends that after the certificate was processed and mailed, Rudibaugh complained to her that the hospital would be sued and that approximately two weeks later, Dr. Graham issued a second, supplemental death certificate listing the cause of death as "natural." This second death certificate did not contain any information regarding the patient's fall from the hospital bed. Appellant acknowledged in her deposition that she never asked Dr. Graham or any other supervisor for a reason why the supplemental death certificate was issued (Bennett Depo., p. 64.) Appellant also acknowledged that she never made a written complaint to Dr. Graham or any other supervisor about the supplemental death certificate....