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Pytlinski v. Brocar Products8/18/2000
tations prevails in tortious wrongful-discharge actions was not addressed in any of the syllabus paragraphs or in the body of the opinion. Painter v. Graley (1994), 70 Ohio St.3d 377, 639 N.E.2d 51 (affirming the appellate court's judgment on other grounds).
The core of the appellate court's holding in Painter is this:
[Constitutional provisions dealing with free speech, equal protection, and privileges and immunities do not] articulate sufficient public policy to justify a cause of action for tortious wrongful discharge of an unclassified civil service employee of the city of Cleveland who was discharged for running for political office. Painter v. Graley, 84 Ohio App.3d at 73, 616 N.E.2d at 290-91.
Whatever may be the import of the subsequent reference by the court of appeals to the four-year statute of limitations established by R.C. 2305.09(D), we are not persuaded that the appellate decision in Painter is applicable to the case at bar. Instead, we are convinced that the ratio decidendi set forth in Davidson v. BP America, Inc. (1997), 125 Ohio App.3d 643, 709 N.E.2d 510, provides the law that resolves the issues sub judice.
In Davidson, a former employee sued an accounting firm, one of the firm's partners, and others, asserting claims for a violation of R.C. 4113.52 and, inter alia, wrongful discharge in violation of public policy. The trial court dismissed some of the claims and granted motions for summary judgment on the "whistleblower" allegations in the complaint.
Justice Robert E. Holmes, retired, of the Supreme Court of Ohio, sitting by assignment to the Court of Appeals for Cuyahoga County, wrote for a unanimous panel. He began his analysis of the issues pertaining to the claim for damages for retaliatory discharge with a reference to Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 677 N.E.2d 308:
n Kulch *, our Supreme Court recently held that 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 and further found that 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. Id., paragraphs two and five of the syllabus. Davidson, supra, at 650, 709 N.E.2d at 514.
That introduction was followed by this quotation from the opinion of Justice Andrew Douglas in Kulch:
However, the public policy embodied in the Whistleblower Statute is limited. By imposing strict and detailed requirements on certain whistleblowers and restricting the statute's applicability to a narrow set of circumstances, the legislature clearly intended to encourage whistleblowing only to the extent that the employee complies with the dictates of R.C. 4113.52. As we held in Contreras [v. Ferro Corp. (1995)], 73 Ohio St.3d 244, 652 N.E.2d 940, syllabus: "In order for an employee to be afforded protection as a `whistleblower,' such employee must strictly comply with the dictates of R.C. 4113.52. Failure to do so prevents the employee from claiming the protections embodied in the statute." (Emphasis sic.)
Consequently, appellant, here, is limited to bringing his claim for tortious wrongful discharge in violation of public policy pursuant to the requirements of the Whistleblower Act. "The obvious implication of Contreras is that an employee who fails to strictly comply with the requirements of R.C. 4113.52 cannot base a Greeley claim solely upon the public policy embodied in that statute." Kulch, supra, 78 Ohio St.3d at 153, 677 N.E.2d at 323. David
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