Trader v. People Working Cooperatively, Inc.

Wright, J.,

dissenting. I must vigorously dissent from this court’s ruling that this case was improvidently allowed.

This case squarely presents the issue of whether the Ohio Whistleblower Protection Act (“WPA”), R.C. 4113.52, is the exclusive remedy for at-will employees discharged for reporting statutory violations by their employers, and whether the WPA preempts a possible common-law public-policy tort premised upon “whistleblowing.” I believe that this issue is a matter of great public importance and should have been ruled upon by this court. As it is, this court’s failure to act allows the decision of the court of appeals to stand; I believe the decision below was wrongly decided.

In 1986, this court held that “[p]ublic policy does not require that there be an exception to the employment-at-will doctrine when an employee is discharged for reporting to his employer that it is conducting its business in violation of law.” Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100 , 23 OBR 260, 491 N.E.2d 1114 , paragraph one of the syllabus. The General Assembly enacted the WPA in apparent response to Phung . This legislation carefully balanced the public policy of encouraging prompt employee reporting of criminal, hazardous or unsafe conditions created by their employers with the imposition of specific obligations employees must meet to gain protection as a whistleblower. As enacted, the WPA provides the exclusive remedies of reinstatement, back wages, lost benefits, witness and expert witness fees, attorney fees, costs and interest. See R.C. 4113.52(E); Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, 136 , 543 N.E.2d 1212, 1216-1217 , at fn. 7.

*1287 As suggested above, whistleblower claims were not actionable at common law. See Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111-112 , 570 N.E.2d 1095, 1099-1100 . 1 Where a statute such as the WPA creates a right that was not actionable at common law, the remedy prescribed is exclusive. Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police (1991), 59 Ohio St.3d 167, 169 , 572 N.E.2d 87, 89 (citing Zanesville v. Fannan [1895], 53 Ohio St. 605 , 42 N.E. 703 , paragraph two of the syllabus). This court has stated that “ ‘[w]here the General Assembly by statute creates a new right and at the same time prescribes remedies or penalties for its violation, the courts may not intervene and create an additional remedy * * *. If the General Assembly has provided a remedy for the enforcement of a specific new right, a court may not on its own initiative apply another remedy it deems appropriate.’ ” Franklin Cty., 59 Ohio St.3d at 169, 572 N.E.2d at 89 -90 (quoting Fletcher v. Coney Island, Inc. [1956], 165 Ohio St. 150 , 154, 59 O.O. 212, 214 , 134 N.E.2d 371 , 374).

While drafting the WPA, the General Assembly considered a version of the statute which would have authorized many kinds of relief, including the following:

“The court * * * shall order * * * reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, punitive damages or any combination of these remedies.” (Emphasis added.) (Hearings of May 7, 1987 on Sub.H.B. No. 406; see Rheinecker v. Forest Laboratories [S.D.Ohio 1993], 826 F.Supp. 256, at fn. 2 .) The emphasized language would have been broad enough to authorize front pay, compensatory damages, and punitive damages. However, the General Assembly rejected the above-quoted provisions for actual damages and punitive damages. (Sub.H.B. No. 406 as re-reported by Senate Judiciary Committee, March 3, 1988.) 2 Further, the Senate added a provision which expressly declared that remedies shall be limited to those identified in the statute. (Id.) This amendment became part of the statute, as enacted (142 Ohio Laws, Part II, 3590, 3592-3593):

*1288 “The employee may bring a civil action for appropriate injunctive relief or for the remedies set forth in division (E) of this section, or both.” (Emphasis added.) R.C. 4113.52(D).

Thus, the General Assembly rejected provisions which would have provided greater remedies, and declared that remedies and periods of limitation shall be limited to those specifically provided in the statute itself.

There could not be a clearer statement of legislative intent — the General Assembly responded to Phung , enunciated the procedure for a whistleblower to follow, and specifically considered and excluded broader remedies. At the time R.C. 4113.52 was enacted, there existed no common-law tort claim for whistle-blower protection. The General Assembly created a new right, imposed new duties, and prescribed new and exclusive remedies and periods of limitation. Bear v. Geetronics, Inc. (1992), 83 Ohio App.3d 163, 168-169 , 614 N.E.2d 803, 807 ; Contreras v. Ferro Corp. (1994), 73 Ohio St.3d 244 , 652 N.E.2d 940 ; Murray v. Clinton Petroleum Co. (July 16, 1993), Portage App. No. 92-P-0086, unreported, 1993 WL 268459 ; Rheinecker v. Forest Laboratories, Inc. (S.D.Ohio 1993), 813 F.Supp. 1307, 1313 , reconsideration denied, 826 F.Supp. 256, 257 ; Ungrady v. Burns Internatl. Security Services, Inc. (N.D.Ohio 1991), 767 F.Supp. 849, 852-853 ; Russell, supra (all holding that the WPA provides the exclusive remedy for whistleblowing). See Anderson v. Lorain Cty. Title Co. (1993), 88 Ohio App.3d 367 , 623 N.E.2d 1318 ; Schwartz v. Comcorp, Inc. (1993), 91 Ohio App.3d 639 , 633 N.E.2d 551 ; Emser v. Curtis Industries (N.D.Ohio 1991), 774 F.Supp. 1076, 1078 ; Pozzobon v. Parts for Plastics, Inc. (N.D.Ohio 1991), 770 F.Supp. 376, 380 (all holding that no public-policy tort remedy is available where the statute containing the public policy which was allegedly violated provides a specific civil legal remedy for its violation). See, also, Dudewicz v. Norris-Schmid, Inc. (1993), 443 Mich. 68, 78-80 , 503 N.W.2d 645, 649-650 (remedies provided by whistleblower statute are exclusive, as there was no right at common law to be free from being fired for reporting an employer’s violation of the law); Pacheo v. Raytheon Co. (R.I.1993), 623 A.2d 464, 465 (declining to recognize tort of whistleblowing where legislature has enacted whistleblower statute: “It is not the role of the courts to create rights for persons whom the Legislature has not chosen to protect.”); Magerer v. John Sexton & Co. (C.A. 1, 1990), 912 F.2d 525, 531-532 (no valid common-law claim for violation of public policy where legislature has provided a statutory scheme to govern such claims); Grzyb v. Evans (Ky.1985), 700 S.W.2d 399, 401 (“The statute not only creates the public policy but preempts the field of its application.”); Mello v. Stop & Shop Cos., Inc. (1988), 402 Mass. 555, 556 , 524 N.E.2d 105, 106 (no common-law rule needed where legislature has provided a statutory remedy).

*1289 Recently in Contreras , this court stated unequivocally that a plaintiff must strictly comply with the mandates of the WPA in order to pursue his or her cause of action. Contreras v. Ferro Corp. (1995), 73 Ohio St.3d 244 , 652 N.E.2d 940 , syllabus. I believe that Contreras controls the case before us. For this reason and for the reasons noted above, I believe the decision of the court of appeals should be reversed.

Moyer, C.J., and Cook, J., concur in the foregoing dissenting opinion.

. This court in Winy was asked to recognize a Greeley public-policy exception to the employment-at-will doctrine for employees discharged for whistleblowing, and it declined to do so “on the basis of these facts.” Winy, 59 Ohio St.3d at 111-112, 570 N.E.2d at 1099-1100 . See Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228 , 551 N.E.2d 981 . Wing alleged that he was terminated for bringing wrongdoing to the attention of his employer. The facts in this case are no different.

. The House accepted all Senate amendments to the bill. (142 Ohio House Journal 1581 [March 10, 1988].) See R.C. 4113.52(E). This amendment distinguishes the whistleblower statute from statutes such as R.C. 4112.99, which authorizes a court to award specified remedies “or any other appropriate relief.”