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Court News Ohio

Village Employee Not Entitled to Whistleblower Protection

Image of water flowing from outdoor water pipes (Photo Credit: iStock)

A Cardington village employee did not report any crimes by his employer involving wastewater treatment or report them in strict compliance with Ohio’s whistleblower laws, the Ohio Supreme Court ruled.

Image of water flowing from outdoor water pipes (Photo Credit: iStock)

A Cardington village employee did not report any crimes by his employer involving wastewater treatment or report them in strict compliance with Ohio’s whistleblower laws, the Ohio Supreme Court ruled.

An employee of the village of Cardington claiming he was fired for reporting problems at the local wastewater treatment plant did not establish that he qualified as a whistleblower under state law or that his employer committed any crimes, the Ohio Supreme Court ruled today.

Donald Lee, who worked at the plant, was “instrumental” in uncovering a manufacturer’s illegal disposal of hazardous chemicals into the public water supply, Justice Judith L. French noted in the court’s 5-2 majority opinion. However, the court concluded that Lee did not meet the reporting requirements mandated by statute to receive whistleblower protection when alleging that his employer also perpetrated crimes.

The decision reverses the judgment of the Fifth District Court of Appeals.

One of Lee’s job responsibilities was to oversee operations at the village wastewater treatment plant. In 2000, he noticed equipment problems and unusual accumulations of foam, and he notified the Ohio Environmental Protection Agency.

By spring 2007, the problems were worsening. After an inspection that year, Ohio EPA ruled out the plant as the source of the contamination. The focus of the investigation then became the village’s largest employer, Cardington Yutaka Technologies (CYT), a manufacturer of auto parts. The federal EPA became involved, and CYT was found responsible for the pollutant, glycol, in the water supply.

Lee focused on efforts to repair the $750,000 in damage to the plant caused by the chemical. Lee discussed the problems with the village administrator, Dan Ralley, who was his supervisor. They disagreed about how to repair the equipment. Because the plant could not filter out the glycol, Lee also worried that the chemical was continuing through to Whetstone Creek, which supplies drinking water to water plants downstream. He was further concerned that if they waited to fix the damage, the plant might exceed the limits in its operating permit for discharging sewage.

Lee expressed his views at village council meetings in September and December 2008.

The village fired Lee in June 2009. He claimed they were retaliating against him because of the issues he raised, while the village cited other reasons.

Lee sued the village later that year, arguing that he was terminated in violation of Ohio’s whistleblower statute and public policy.

The trial court granted summary judgment to the village on the claim involving the whistleblower statute. It found that Lee had only reported the equipment failures caused the CYT’s disposal of glycol and had not identified any environmental crime. As a result, Lee was not entitled to whistleblower protection, the court concluded.

On appeal, the Fifth District reversed. The village appealed to the Ohio Supreme Court.

The whistleblower statute
R.C. 4113.52 protects employees from disciplinary or retaliatory action when they find and report certain violations by their employers or other employees.

Justice French pointed out that an employee must strictly comply with the requirements of the statute to obtain protection as a whistleblower. In this case, she wrote, Lee did not report crimes involving the village or report them in strict compliance with R.C. 4113.52(A)(1) or (2).

Violations of federal, state, or local laws
Under division (A)(1), an employee must orally report a violation to the supervisor or other responsible officer, then file a written report. If the employer does not fix, or make a good faith effort to fix, the violation within 24 hours, the employee may notify outside authorities.

There is no written report in the record in this case, Justice French noted. Lee maintained that he gave a report to Ralley in 2009, but the report only described equipment failures at the plant and needed repairs, she added.

“Lee’s report of ‘equipment failures’ does not qualify as a report that sufficiently identifies and describes any crimes involving the village, as the statute requires,” she wrote. Lee did not claim the village had violated its permit, and he did not show that the village was knowingly putting glycol into the water supply, she explained.

Justice French added that Lee also was required to provide his report before he contacted outside authorities, but he said he gave his boss the report in 2009, years after he began talking with EPA officials about the problems.

Environmental violations
Division (A)(2) covers environmental whistleblowing and requires a violation of one of four Revised Code chapters, and oral or written notification to appropriate authorities. Justice French determined Lee did not notify state or federal EPA officials of any crimes by the village, and he cannot claim the village was violating its permit under R.C. 6111.04(C) because the village was continuing to meet the permit conditions and was working to repair the problems at the plant.

“As for Lee’s claim that the village was knowingly discharging a hazardous pollutant in violation of R.C. 2927.24(B)(1), that statute is not among those qualifying for protection under R.C. 4113.52(A)(2),” she wrote. “In any event, Lee did not have any reasonable basis to believe that the [plant] was knowingly discharging glycol into the water. Ohio EPA and U.S. EPA told him that the [plant] was not the source of the glycol.”

Because Lee did not qualify for whistleblower protection, the Supreme Court reinstated the judgment of the trial court granting summary judgment in favor of the village.

Joining the majority were Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Judith Ann Lanzinger, and Sharon L. Kennedy.

Justice Paul E. Pfeifer dissented in an opinion joined by Justice William M. O’Neill.

The dissent
Justice Pfeifer would have dismissed the case as improvidently allowed because it is fact specific and does not address any important or novel legal question.

Alternatively, he would let Lee continue with his case before the trial court.

“It is possible that the water discharged after treatment by the village of Cardington’s wastewater treatment plant contains levels of chemicals and compounds that are not permitted,” he wrote. “Further proceedings are necessary in order to determine whether Donald Lee is able to prove his case given all of the facts. There are insufficient grounds to support the majority’s conclusion that the village is entitled to summary judgment.”

2013-1400. Lee v. Cardington, Slip Opinion No. 2014-Ohio-5458.

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