Shingler v. Provider Servs. Holdings, L.L.C.
| Decision Date | 12 July 2018 |
| Docket Number | No. 106383,106383 |
| Citation | 2018 Ohio 2740 |
| Parties | CINDY SHINGLER PLAINTIFF-APPELLANT v. PROVIDER SERVICES HOLDINGS, L.L.C., ET AL. DEFENDANTS-APPELLEES |
| Court | Ohio Court of Appeals |
ATTORNEYS FOR APPELLANTS
Kimberly C. Young
Marilena Disivio
Elk & Elk Co., Ltd.
6105 Parkland Boulevard, Suite 200
Mayfield Heights, Ohio 44124
ATTORNEYS FOR APPELLEES
Susan M. Audey
Ernest W. Auciello
Tucker Ellis L.L.P.
{¶1} Plaintiff-appellant Cindy Shingler appeals from the trial court's order dismissing her complaint against defendants-appellees Provider Services Holdings, L.L.C. ("Provider Services") and Lafayette Point Nursing and Rehabilitation Center ("Lafayette") (collectively, "appellees") with prejudice for failure to state a claim for which relief could be granted. Shingler asserts that because she failed to comply with the requirements for bringing a wrongful discharge claim under Ohio's whistleblower statute, R.C. 4113.52, she has no adequate statutory remedy and is, therefore, entitled, as a matter of law, to bring a common-law claim for wrongful discharge in violation of public policy after she was allegedly discharged for reporting violations of the Nurse Practice Act, codified in R.C. Chapter 4723, to the Ohio Board of Nursing. For the reasons that follow, we affirm the trial court's judgment.
Factual and Procedural Background1
{¶2} From 2008 to August 8, 2012, Shingler was employed by Provider Services, serving as a director of nursing at Lafayette. On July 30, 2012, a nursing assistant who Shingler supervised informed her that another Lafayette employee, Brenda Burdett, who was not a licensed nurse or certified nursing assistant, was engaging in unauthorized patient care. Shingler informed her supervisor, Jeff Grewell, of these reports.
{¶3} The following day, Shingler received two additional reports that Burdett was engaging in unauthorized patient care. Shingler once again informed Grewell of these reports. Shingler claims that, in response to these reports, Grewell told her: "Cindy, you will be the one togo, not Brenda." On August 2, 2012, Shingler contacted the Ohio Board of Nursing and reported that nursing functions were being performed by unlicensed personnel at Lafayette.
{¶4} On August 3, 2012, Shingler met with four of appellees' representatives to discuss her allegations. She was instructed to turn over all materials she had relating to her investigation of the unlicensed practice of nursing at Lafayette. After the meeting concluded, Shingler was placed on administrative leave. Shingler attended a second meeting on August 8, 2012. Shingler claims that, at that meeting, she was forced to sign a separation agreement terminating her employment with appellees.
{¶5} On October 3, 2016, Shingler filed the instant action against appellees in the Cuyahoga County Court of Common Pleas, asserting a claim for wrongful discharge in violation of public policy.2 Shingler alleged that her termination was "in direct retaliation" for her report to the Ohio Board of Nursing. She further alleged that her termination violates the "clear public policy" expressed in R.C. 4723.03 and 4723.341 and "other applicable administrative rules" "against retaliatory action on the part of employers against employees who report unlicensed individuals engaging in the practice of nursing in the state of Ohio to the Board of Nursing." Shingler sought to recover an unspecified sum as and for front pay, back wages, loss of employment opportunity, future earnings, lost pension, loss of insurance and other fringe benefits, adverse health effects, humiliation, embarrassment, loss of reputation, loss of self esteem, attorney fees and costs.
{¶6} On November 16, 2016, appellees filed a motion to transfer venue, requesting that the case be transferred to the Coshocton County Court of Common Pleas.3 The trial court denied the motion.
{¶7} Appellees filed an answer denying the material allegations of the complaint and asserting various affirmative defenses, including failure to state a claim for which relief can be granted and Shingler's failure to "strictly comply with the requirements of any applicable and actionable whistleblower or anti-retaliation statute or provision." In July 2017, the trial court granted appellees leave to file a combined motion to dismiss and for judgment on the pleadings pursuant to Civ.R. 12(B)(6) and 12(C). Appellees argued that Shingler's complaint failed to state a claim for which relief could be granted because: (1) Shingler could not satisfy the "jeopardy element" of her common-law wrongful discharge in violation of public policy claim (also referred to as a "Greeley4 claim") because R.C. Chapter 4723 provided adequate protections against retaliatory discharge stemming from reports to the Ohio Board of Nursing and (2) to the extent Shingler attempted to assert a claim for retaliatory discharge under R.C. 4723.341(C), her claim was barred for failure to comply with the whistleblower statute, R.C. 4113.52.
{¶8} Shingler opposed the motion, arguing that (1) appellees' motion to dismiss was not timely filed and must be analyzed as a motion for judgment on the pleadings and (2) her complaint pled a cognizable common-law claim for wrongful discharge in violation of public policy because no remedy was available to her under Ohio's whistleblower statute since she didnot file a written report. Shingler asserted that her claim for wrongful discharge in violation of public policy was based on violations of R.C. Chapter 3734, R.C. 4101.11, 4101.12, 4723.03 and 4723.341(C), 29 C.F.R. 24.102, 29 C.F.R. 1910.120 and "other state and/or federal statutes, administrative rules, regulations and constitutions."
{¶9} On September 17, 2018, the trial court granted appellees' motion and dismissed Shingler's complaint with prejudice. Citing this court's decision in Davidson v. B.P. Am. 125 Ohio App.3d 643, 709 N.E.2d 510 (8th Dist.1997), and the language of R.C. 4723.341(C), the trial court concluded that "[s]ection 4723.341(C) of the Nurs[e] Practice Act clearly directs plaintiff that she has 'duties' under R.C. § 4113.52 to follow in order to be accorded the protections under the Whistleblower statute" and that because "[p]laintiff chose not to do so," she could not bring a common-law claim for wrongful discharge in violation of public policy.
{¶10} Shingler appealed, raising the following two assignments of error for review:
Law and Analysis
Waiver of Failure to State a Claim Defense
{¶11} For ease of discussion, we address Shingler's second assignment of error first. In her second assignment of error, Shingler argues that appellees waived their defense of failure tostate a claim for which relief can be granted because (1) the defense was not raised in appellees' pre-answer motion to transfer venue pursuant to Civ.R. 12(B)(2), (2) the parties "stipulated," in two joint motions they filed to extend the discovery schedule, that "[d]ispositive motions are not expected to be filed," and (3) the trial court stated, in its June 20, 2017 journal entry granting the parties' second joint motion for modification of the discovery schedule that "[n]o dispositive motions shall be filed." Shingler's argument is meritless.
{¶12} Civ.R. 12(B) provides, in relevant part:
How presented. Every defense, in law or fact, to a claim for relief in any pleading * * * shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * (3) improper venue, * * * (6) failure to state a claim upon which relief can be granted * * *. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. * * *
{¶13} Civ.R. 12(G) further provides:
Consolidation of defenses and objections. A party who makes a motion under this rule must join with it the other motions herein provided for and then available to him. If a party makes a motion under this rule and does not include therein all defenses and objections then available to him which this rule permits to be raised by motion, he shall not thereafter assert by motion or responsive pleading, any of the defenses or objections so omitted, except as provided in subdivision (H) of this rule.
(Emphasis added.)
{¶14} Civ.R. 12(H)(2), permits "[a] defense of failure to state a claim upon which relief can be granted * * * [to] be made in any pleading permitted or ordered under Rule 7(A), or by motion for judgment on the pleadings, or at the trial on the merits." In this case, appellees raised the defense of failure to state a claim for which relief could be granted in their answer and then filed a combined motion to dismiss and a motion for judgment on the pleadings with leave of court. Even if appellees' Civ.R. 12(B)(6) motion to dismiss was untimely under Civ.R.12(G), under Civ.R. 12(H), appellees could still raise the defense of failure to state a claim for which relief can be granted in their answer, by motion for judgment on the pleadings or at trial. See, e.g., Koltcz v. Alchem Corp., 8th Dist. Cuyahoga No. 59205, 1991 Ohio App. LEXIS 5375, 2-4 (Nov. 7, 1991...
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