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Court News Ohio

Tenth District: Terminated Dental Assistants Get Wrongful Discharge Hearing 12 Years after Blowing the Whistle on Intoxicated Dentist

Twelve years after they complained to a dental clinic’s corporate owners that the dentist in their office worked on patients while intoxicated and intentionally botched procedures to generate repeat business, two Columbus dental office employees won the right to have their wrongful discharge claims heard in court.

The Tenth District Court of Appeals last week directed a Franklin County Common Pleas Court to weigh the claims of Barbara Blackburn and Heather Esposito against American Dental Centers (ADC) and its sole shareholder Dr. Sam S. Jaffe. This is the second time since 2011 the Tenth District remanded the case and the second time it overruled the trial court’s granting of summary judgment to ADC.

In directing the court to hear evidence of their termination, the appeals court ruled that two Ohio workplace safety statutes, R.C. 4101.11 and R.C. 4101.12, can be the grounds for filing a wrongful termination in violation of public policy. In doing so, the judges stated they “specifically disagree” with a 2013 Sixth District Court of Appeals ruling (Whitaker v. FirstEnergy Operating Co.) claiming those laws were too general and broad to be the basis of a wrongful termination claim.

According the court, Blackburn and Esposito worked at ADC’s Maple Canyon office when Dr. Sherman Allen was hired in October 2001 as a dentist. The two and other employees began investigating Allen’s background and discovered he lost his dentistry license in Michigan, was convicted of criminal offenses and was not supposed to leave Michigan. They also claimed to have witnessed him at times intoxicated, hung over, and falling asleep while working on patients and that led to patients experiencing permanent damage and loss of teeth. They also claimed to witness Allen perform unnecessary procedures and deliberately botch work to generate further treatment and fees.

The women claim when they brought this information to ADC management they were threatened with retaliation, including legal action for defamation, reduced wages, and denials of promotions. ADC terminated Dr. Allen in the fall of 2002 and terminated Esposito in November 2002. Blackburn continued to make claims about the past misconduct of Allen in 2003, including appearing in disguise on a local television program to discuss unsafe conditions at ADC and joined with other employees who wrote to ADC saying they would not return to work until they felt safe. At that time, Blackburn claimed she was terminated and ADC claims she abandoned her position.

Several employees began jointly filing legal actions against ADC, but voluntarily dismissed their cases until just Blackburn and Esposito filed in January 2008 on several grounds, including violations of the Ohio whistleblower statute and wrongful termination in violation of public policy. ADC filed counter claims against the two, including fraud and defamation. In 2009, the trial court granted summary judgment for ADC on most grounds and the parties agreed to drop other claims against each other. Blackburn and Esposito then appealed the ruling in favor of ADC.

Writing for the court, Judge Susan Brown noted that in 2011, the appeals court sided with the trial court on all claims except the ruling on wrongful termination in violation of public policy. Judge Brown said the trial court used the wrong standard to rule against the women, who based their discharge on the public policy against drug and substance abuse in the workplace, patient safety, and workplace safety. When the case was sent back, each party provided additional information to the judge. ADC alerted the court to the Ohio Supreme Court’s 2011 Dohme v. Eurand America, Inc. decision as part of its argument that the women did not properly argue patient and workplace safety to make their claim. Again, the trial court granted summary judgment to ADC.

In overturning the trial court for the second time, Judge Brown outlined the four factors a terminated employee must prove to win a wrongful termination in violation of public policy claim. The first two, labeled as the “clarity” and “jeopardy” elements, can be decided by a judge by party filings. But if met, a court cannot grant summary judgment, but must hear arguments on the third and fourth elements “causation” and “overriding justification.”

Citing the Ohio Supreme Court’s Painter v. Graley (1994) decision, Judge Brown said clarity means there must be a clear public policy in a state or federal constitution, statute, administrative rules, or common law against how the employer acted. The employees must then show their termination would jeopardize the validity of the public policy. Then the employee must prove the dismissal was motivated by conduct that violated the public policy and finally that the employer lacked an overriding legitimate business justification for the termination.

Judge Brown wrote the trial court misapplied the Dohme ruling and held that the women failed to state their public policy grounds thoroughly enough in their complaint to the court. Judge Brown said Dohme did not contain such limits and that the existence of a public policy could be made in their arguments against the request for summary judgment sought by ADC.

The appeals court said the women presented R.C. 4101.11 and 4101.12, which collectively require employers to provide a safe work place for their employees and those that frequent their places of business. Because the statutes require methods and processes to keep a workplace safe, the law implies bans on drug and alcohol abuse at the workplace.

“There is a statewide policy prohibiting termination of employees who report conduct and practices in a dental practice that present a risk of severe harm to patients or staff,” Judge Brown wrote. “In this case, the record is replete with evidence of the professional shortcomings of Dr. Allen.”

Not only did the women meet the clarity standard, but also that ADC jeopardized the public policy by terminating them for their attempts to warn about Allen’s actions. The trial court was directed to hear evidence to determine if the women met the causation and overriding justification elements of their case.

Judges Lisa L. Sadler and Gary Tyack concurred in the decision.

Blackburn v. Am. Dental Ctrs., 2014-Ohio-5329
Opinion: http://sc.ohio.gov/rod/docs/pdf/10/2014/2014-ohio-5329.pdf
Civil Appeal From: Franklin County Court of Common Pleas
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: December 2, 2014

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