Kulch v. Structural Fibers, Inc.

• Decision Date: 16 April 1997
• Docket Number: No. 95-650,95-650
• Citation: 677 N.E.2d 308,78 Ohio St.3d 134
• Parties: , 65 USLW 2704, 12 IER Cases 1484, 1997 O.S.H.D. (CCH) P 31,325 KULCH, Appellant, v. STRUCTURAL FIBERS, INC. et al., Appellees.
• Court: Ohio Supreme Court

Page 134

78 Ohio St.3d 134

677 N.E.2d 308, 65 USLW 2704, 12 IER Cases 1484,

1997 O.S.H.D. (CCH) P 31,325

KULCH, Appellant, v. STRUCTURAL FIBERS, INC. et al., Appellees.

No. 95-650.

Supreme Court of Ohio.

Submitted Oct. 8, 1996.

Decided April 16, 1997.

SYLLABUS BY THE COURT

1. An at-will employee who is discharged or disciplined for filing a complaint with the Occupational Safety and Health Administration concerning matters of health and safety in the workplace is entitled to maintain a common-law tort action against the employer for wrongful discharge/discipline in violation of public policy pursuant to Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981, and its progeny.

2. R.C. 4113.52 does not preempt a common-law cause of action against an employer who discharges or disciplines an employee in violation of that statute.

3. 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 v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981, and its progeny, so long as that employee had fully complied with the statute and was subsequently discharged or disciplined. (Greeley, supra, approved; Painter v. Graley [1994], 70 Ohio St.3d 377, 639 N.E.2d 51, paragraphs two and three of the syllabus, approved; Phung v. Waste Mgt., Inc. [1986], 23 Ohio St.3d 100, 23 OBR 260, 491 N.E.2d 1114, overruled.)

4. The remedies available pursuant to R.C. 4113.52 for violations of the statute and the remedies available for the tort of wrongful discharge are cumulative.

5. An at-will employee who is discharged or disciplined in violation of R.C. 4113.52 may maintain a statutory cause of action for the violation, a common-law cause of action in tort, or both, but is not entitled to double recovery.

Structural Fibers, Inc., appellee, is an operating division of appellee ESSEF Corporation. Structural Fibers is located in Chardon, Ohio, where it manufactures tanks or "vessels" used in well water systems. In 1976, James Kulch, appellant, was hired by Structural Fibers as a factory worker. In late 1990, Kulch began experiencing serious health problems which he believed were attributable to toxic chemicals in the air at his workplace. Other employees had also experienced health problems, such as serious allergic reactions, rashes, bloody noses, skin irritation, and respiratory difficulties. Therefore, Kulch and others verbally complained to management concerning the situation. However, according to Kulch, management responded to his complaints by informing him that he could either do his job or find employment elsewhere.

In January 1991, after Structural Fibers had done nothing in response to Kulch's verbal complaints, Kulch filed a written report with the Occupational Safety and Health Administration ("OSHA"). In his report, Kulch stated that employees in the "winding area" of Structural Fibers' main plant were complaining of health problems "from chemicals in the air, such as: acetone, styrene, epoxy resins, colbalt [sic ] mixes." In April 1991, OSHA inspected the plant and, among other things, performed air monitoring in the winding area. The air sampling data revealed that the air contaminants in the winding area did not violate OSHA standards. However, during the on-site inspection, OSHA found several serious violations of the Occupational Safety and Health Act of 1970, Section 651 et seq., Title 29, U.S.Code. Consequently, substantial fines were assessed against Structural Fibers. ¹ The violations found by OSHA were apparently unrelated to the matters set forth in Kulch's January 1991 OSHA complaint.

According to Kulch, Structural Fibers and the ESSEF Corporation (collectively, "appellees") retaliated against him for having filed the report with OSHA. Specifically, Kulch's coworkers were approached by management and asked to confirm the identity of the person who had filed the OSHA complaint. At the same time, appellees warned employees not to associate with Kulch. Appellees threatened that anyone found associating with Kulch would "go down" with him. On one occasion, Kulch was physically threatened by a supervisor for having reported the company to OSHA. Additionally, Kulch's supervisors began filling his employment file with lengthy write-ups and entries. Between June 7 and In October 1991, management at Structural Fibers decided to secretly videotape Kulch during work hours to monitor his job performance. A hidden camera was placed near Kulch's work station and his performance was surveyed over a period of two days. The act of videotaping Kulch was the first time in company history that surveillance cameras were used to document an employee's job performance. On October 17, 1991, Kulch was discharged from his employment with Structural Fibers. Following the discharge, Kulch filed a complaint with OSHA, asserting that appellees had discharged him for having filed previous OSHA complaints. In July 1992, OSHA dismissed Kulch's retaliation complaint.

October 7, 1991, write-ups or reports had been placed in Kulch's personnel file on eleven separate occasions, sometimes more than once on the same day.

The parties dispute the reason for Kulch's termination. Kulch contends that he was discharged from his employment in reprisal for having reported Structural Fibers to OSHA. Conversely, appellees specifically deny having ever retaliated against Kulch. Appellees claim that they videotaped Kulch and began to closely monitor his job performance simply because Kulch had been suspected of improperly performing his job. Appellees maintain that they never knew about Kulch's January 1991 OSHA complaint until well after the complaint had been filed. Appellees claim that Kulch was terminated for failure to properly perform his job and for falsely indicating on his time card that he had performed work he had not in fact completed.

In December 1991, Kulch filed suit against Structural Fibers. In an amended complaint, Kulch added appellee ESSEF Corporation as a defendant and set forth claims for violations of Ohio's Whistleblower Statute, R.C. 4113.52, and wrongful discharge in violation of public policy. Kulch also set forth claims for, among other things, negligent and intentional infliction of emotional distress. On May 15, 1992, appellees moved to dismiss the amended complaint for failure to state a claim. The trial court denied appellees' motion to dismiss. Thereafter, following a period of discovery, appellees moved for summary judgment on Kulch's claims for violations of the Whistleblower Statute and his claims for negligent and intentional infliction of emotional distress. Appellees also moved for judgment on the pleadings with respect to, among other things, Kulch's claim of wrongful discharge in violation of public policy. By judgment entry filed November 10, 1993, the trial court granted appellees' motion for judgment on the pleadings and for summary judgment, stating:

"This case is before the court on defendants' motion for judgment on the pleadings and for summary judgment.

"Plaintiff seeks to recover damages for wrongful discharge pursuant to the Whistleblower Act, R.C. 4113.52. Plaintiff reported to [OSHA] that the defendant[s'] work place was unsafe because defendant[s] permitted the use and "In addition to a violation of the Whistleblower Act, plaintiff alleges that his discharge was unlawful and in conflict with Ohio's public policy as established in Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St.3d 228 . First, the court is of the opinion that the Whistleblower Act in Ohio has preempted this field so that * * * a public policy exception to the employment at will doctrine does not exist in Ohio for whistleblowing. * * *

discharge into the air of toxic and corrosive chemicals. Defendant[s] [claim] that plaintiff was discharged, not for whistleblowing, but for unsatisfactory work performance. For the purposes of this motion, the court must assume that defendant[s] discharged plaintiff because plaintiff reported defendant[s] to OSHA.

"As to the violations of the Whistleblower Statute, R.C. 4113.52 specifically provides that an employee must first give oral and written notice to the employer in order to be protected by the statute. It is undisputed in this case that plaintiff orally complained to the employer about the unsafe or unhealthy condition in the plant, but that he never made a written complaint to the employer.

" * * *

"Accordingly, the court holds that plaintiff is not afforded protection pursuant [to] R.C. 4113.52 and that no genuine issue exists as to any material fact and that judgment should be granted as a matter of law with respect to the claimed violation of statute.

" * * *

"Finally, plaintiff claims that he suffered emotional distress because of defendant[s'] intentional and negligent actions. Construing the facts most favorably for the plaintiff, the court concludes that defendant[s'] conduct was neither extreme nor outrageous.

"Accordingly, the court grants defendant[s'] motion for summary judgment and finds for defendant[s] on the complaint."

On appeal, the court of appeals affirmed the judgment of the trial court. With respect to Kulch's claim of wrongful discharge in violation of public policy, the court of appeals agreed with the trial court's determination that R.C. 4113.52 preempts the formation of a public-policy exception to the employment-at-will doctrine within the specific context of whistleblowing. The court of appeals also agreed with the trial court's decision granting summary judgment in favor of appellees on Kulch's statutory whistleblower cause of action, finding that Kulch was not entitled to avail himself of the protections of R.C. 4113.52(A)(1)(a) because he never made a written report to his employer concerning the alleged unsafe or...