Opinion
No. CV95-12-2006
Decided February 26, 1998.
David G. Torchia, for plaintiff.
Taft, Stettinius Hollister, L.L.P., Roger F. Weber and Gregory Parker Rogers, for defendant.
Plaintiff Gregory Lawson in this matter was employed by defendant, AK Steel Corporation for over twenty-nine years. After working in the maintenance department, he was transferred to the machine shop, where he worked until 1990. In 1990, he was promoted to a salary position as a section manager of the machine shop.
In late 1993, the plaintiff was approached by one Bill Harner, a supervisor, and a shop's superintendent about a special assignment in AK's purchasing department, with the expectation of being returned to his former job when his assignment to the purchasing department ended.
Plaintiff's assignment to purchasing was short-lived, inasmuch as the purchasing department did not want to take him on permanently in light of impending downsizing. The downsizing might have included the plaintiff had he stayed with the purchasing department. He was, therefore, returned to Bill Harner's direct control and continued to do special-assignment work. Still, plaintiff expected to be eventually returned to his old job as section manager of the machine shop.
In mid-November 1998, one Bud Rossi, a plant vice-president, called Bill Harner and told Harner that the plaintiff was going to cost Luther Pratt and Dan Cadott their jobs because plaintiff had talked to an AK Steel auditor and accused Pratt and Cadott of taking bribes and gratuities from vendors. Whereupon, Rossi told Harner to get rid of the plaintiff Harner responded to Rossi that plaintiff had done a good job and asked Rossi to reconsider his request. Nothing further was heard from Rossi. However, several weeks later, Harner was removed from his responsibility over the shops and his supervision of the plaintiff. Luther Pratt, who Rossi erroneously believed was the target of an allegation by the plaintiff, became plaintiff's supervisor. Pratt then told Harner that he could either accept an hourly position in the machine shop or be fired. Plaintiff was then told to speak with Brenda Harmon, a personnel representative, and plaintiff was informed that he had the choice of either a demotion, an hourly job, or termination. Plaintiff refused to make the choice, and Harmon chose the demotion. Pratt, as superintendent of the machine shop, then assembled his own management team, under the machine-related "special assignments" function, and reassigned the plaintiff to the shop as a machinist, the position he had held for many years.
Pejoratively speaking for acceptance of gifts in return for favorable consideration to vendees.
The evidence in this matter would disclose that, while plaintiff may have suffered a demotion, he was in position to make more money with more benefits, better retirement and more job security, under union contract, as an hourly employee.
It is now plaintiff Lawson's claim that Bud Rossi, then vice-president of operation, allegedly ordered that Lawson be reassigned from his special assignment position to the machinist's job as an hourly employee, rather than as his former position as supervisor, because Rossi believed that plaintiff had made false accusations that AK Steel employees Luther Pratt and Dan Cadott had taken bribes or gratuities from vendors. Count Two was, therefore, included in the plaintiff's complaint under a whistleblower's claim. Defendants have now filed a notion for summary judgment on this claim.
The actions of the plaintiff, if the whistleblower allegations are true, at most come within the purview of R.C. 4113.52 (A)(3), which refers to whistleblowing on a violation of "any work rule or company policy of his employer." It was a "work rule or company policy" that was the subject of the alleged whistleblowing. However, R.C. 4113.52 (A)(3) qualifies the phrase "any work rule and company policy" with the clause "and the employee reasonably believes that the violation either is a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety or is a felony."
Accordingly, the whistleblowing statute does not include even the suspected behavior of the plaintiff in our case, i.e., snitching on two individuals for allegedly accepting gratuities from vendors. Therefore, plaintiff's suspected behavior, even if true, was not protected by R.C. 4113.52.
However, R.C. 4113.52 does not encompass all protected behavior because "public policy" also may dictate what is or is not protected. This public policy may be expressed by statute, Constitution, administrative rules and regulations, and the common law. See Painter v. Graley (1994), 70 Ohio St.3d 377, 639 N.E.2d 51. Clearly, the suspected behavior sub judice is not protected by the groupings set forth in Painter. Indeed, even if the behavior of the plaintiff was protected as whistleblowing, plaintiff did not comply with R.C. 4113.52. See Kulch v. Structural Fibers (1997), 78 Ohio St.3d 134, 677 N.E.2d 308, for definitive requirements to sustain a cause of action on whistleblowing activities.
Painter, supra, not only addressed the existence of public policy, but also noted that the Ohio judiciary would discern the existence of such public policy, stating:
"In making such a determination, courts should be mindful of our admonition in Greeley that an exception to the traditional doctrine of employment-at-will should be recognized only where the public policy alleged to have been violated is of equally serious import as the violation of a statute."
We would thus conclude that if the suspected behavior of the plaintiff were true, it would not have been protected as an exception to the employment-at-will doctrine. Therefore, the plaintiff, irrespective of his contention that public policy prohibits his demotion based on his employer's mistaken belief that he engaged in protected conduct, fails in his cause of action because his conduct, even if true, would hardly qualify as protected conduct. The matter of accepting gratuities from vendors for favorable consideration is a matter of AK's internal interests and not of public interest.
Factually, plaintiff has asserted that AK, through Bud Rossi, believed that plaintiff was engaging in spreading false rumors. Even the plaintiff has acknowledged that Bud Rossi did not erroneously believe that he was whistleblowing but, rather, erroneously believed that he was a spreader of false rumors.
Since plaintiff himself knew that he had not blown the whistle on anybody, he obviously should presume that he was being demoted not for whistleblowing, but for other reasons.
There is no "false rumor spreader" exception to the employment-at-will doctrine. Whether Rossi was correct or incorrect does not equate with a violation of public policy. See Painter, supra, 70 Ohio St.3d at 384, 639 N.E.2d at 56-57, citing Greeley, 49 Ohio St.3d at 234, 551 N.E.2d at 986-987. In other words, even the "perceived whistleblowing" was not protected conduct.
The circumstances of this case would require a court to take yet another bold leap at eroding the employment-at-will doctrine. We are asked to include a mistaken belief in an employee's spreading false rumors as a public-policy exception to the employment-at-will doctrine. If, indeed, this is going to be an exception, it should be prescribed by the Supreme Court, or better yet, by the legislature.
Judgment accordingly.