Lee v. Cardington (Slip Opinion)

2014 Ohio 5458, 33 N.E.3d 12, 142 Ohio St. 3d 488
CourtOhio Supreme Court
DecidedDecember 17, 2014
Docket2013-1400
StatusPublished
Cited by5 cases

This text of 2014 Ohio 5458 (Lee v. Cardington (Slip Opinion)) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lee v. Cardington (Slip Opinion), 2014 Ohio 5458, 33 N.E.3d 12, 142 Ohio St. 3d 488 (Ohio 2014).

Opinions

French, J.

{¶ 1} This case concerns R.C. 4113.52, Ohio’s “whistleblower” statute, which protects employees from discipline if they discover and report certain violations during the course of their employment. Appellee, Donald Lee, was instrumental in exposing crimes related to an automotive-parts manufacturer’s discharge of hazardous chemicals into the public water supply. The question before us, however, is whether he also exposed crimes involving his own employer— appellant, the village of Cardington — so as to qualify as a whistleblower under either R.C. 4113.52(A)(1) or (2). We hold that he did not.

Background

{¶ 2} For purposes of this appeal, which is before us pursuant to the trial court’s granting of a motion for summary judgment, we consider Lee’s version of the relevant facts, as follows.

{¶ 3} Lee worked as the “crew chief’ for the village from 2000 to 2009. His duties included supervising the operation of the village’s wastewater-treatment plant (“WWTP”). This appeal arises from Lee’s discovery that someone was discharging a hazardous chemical that was passing through the WWTP into the water supply. The WWTP could not effectively handle or treat the discharge and the chemical ultimately caused more than $750,000 in damages to the WWTP. That someone — according to the ensuing state and federal investigation — turned out to be Cardington Yutaka Technologies, Inc. (“CYT”), an automotive-parts manufacturer and the village’s largest employer.

{¶ 4} Starting in 2000, Lee began to notice equipment disruptions that occurred around the time that CYT conducted biannual shutdowns of its manufacturing plant. The WWTP uses bacteria to digest the solids contained in the wastewater it treats, and the bacteria were dying. According to Lee, this caused a significant accumulation of foam, so much that foam would spill over the WWTP [489]*489walls and into the yard. Lee notified the local representative of the Ohio Environmental Protection Agency (“Ohio EPA”) of his concerns.

{¶ 5} The biannual problems worsened by the spring of 2007. Lee noticed the increased problems at his farm, where Ohio EPA permitted him to use sludge treated by the WWTP as fertilizer that he spread on his fields. After noticing that the treated sludge was preventing plant growth, Lee asked Ohio EPA to investigate the source of the unknown pollutant and stopped using the sludge.

{¶ 6} Ohio EPA began to rule out potential sources of contamination, including the WWTP itself. After a two-day inspection in 2007, Ohio EPA determined that the WWTP was not the source of the pollutant and was satisfying the conditions of its operating permit.

{¶ 7} By the end of 2007, the investigation centered on CYT’s manufacturing plant. When CYT officials consistently denied the discharge, Ohio EPA obtained the assistance of the United States Environmental Protection Agency’s (“U.S. EPA”) criminal division. U.S. EPA also ruled out the WWTP as the source of the pollutant and CYT was ultimately determined to be responsible. Testing eventually revealed that the pollutant was glycol, an industrial chemical used by CYT.

{¶ 8} A main area of Lee’s focus was repairing the damage to the WWTP. In 2007 and 2008, Lee continually discussed the problems with his supervisor, Dan Ralley, the village administrator. Lee was concerned that because the WWTP was not filtering out the pollutant discharged by CYT, the glycol was passing through to Whetstone Creek, a source of drinking water for water plants downstream from the village. He also voiced his concerns that the glycol had damaged some of the WWTP’s equipment and that if left uncorrected, the damage would cause the plant to exceed the discharge limitations of its permit.

{¶ 9} Lee and Ralley clashed over how to fix the equipment problems. According to Lee, Ralley was uncooperative and resisted Lee’s attempts to fully notify him of the problems. Although Ralley was seeking restitution from CYT and was considering a proposal from an outside engineering firm, Lee claimed that Ralley was overly dismissive of Lee’s own proposal to repair the problems. Lee believed that his proposal was more effective and less costly than the alternative.

{¶ 10} Lee voiced his concerns about the WWTP to the village council at two meetings in September and December 2008. At the September meeting, Lee stated that “something” was causing equipment problems in the WWTP and causing the WWTP to send toxic water downstream. He told the council that the WWTP had not yet violated its operating permit, but that the failure to repair the equipment would lead to a permit violation in the future. In December 2008, Lee attended a village council committee work session with Ralley. Lee told the [490]*490council that the plant was still in compliance with its permit, but that “someone should pay” for the resulting damage.

{¶ 11} In June 2009, the village terminated Lee for reasons disputed by the parties. Lee alleges a retaliatory motive, but the village cites alleged incidents of insubordination, failure to complete jobs, personal use of village property, and taking time off without notice.

{¶ 12} Lee sued the village in October 2009, claiming that the village fired him in violation of Ohio’s whistleblower statute, R.C. 4113.52, and in violation of public policy. In support of his statutory whistleblower claim, Lee alleged that the village retaliated against him for “reporting the problems with the [WWTP], his opposition to some of the proposals and projects advanced by the village, and his support for the work of the EPA.”

{¶ 13} The village moved for summary judgment, arguing that Lee had reported only CYT’s wrongdoing and did not identify any criminal violation involving the village. Lee countered that the village had committed two crimes. First, he cited R.C. 2927.24(B)(1), which prohibits knowingly placing a hazardous chemical into a public water supply. Second, he pointed to R.C. 6111.04(C), which prohibits a permit holder such as the WWTP from discharging higher levels of sewage than those specified in the permit.

{¶ 14} The trial court granted summary judgment in favor of the village on the statutory claim relevant to this appeal. The court determined that Lee was not entitled to whistleblower protection because he did not report any criminal act of an environmental nature, only equipment failures caused by CYT’s illegal discharge.

{¶ 15} The court of appeals reversed, finding a genuine issue of material fact to exist as to whether Lee engaged in whistleblowing under R.C. 4113.52(A)(1) and (2). 5th Dist. Morrow No. 12CA0017, 2013-0hio-3108, 2013 WL 3785273.

{¶ 16} We accepted the village’s appeal. 137 Ohio St.3d 1440, 2013-Ohio-5678, 999 N.E.2d 695.

Analysis

{¶ 17} R.C. 4113.52(D) provides a cause of action to any employee who suffers disciplinary or retaliatory action “as a result of * * * having filed a report under division (A)” of R.C. 4113.52. The question here is whether Lee qualified for protection under R.C. 4113.52(A)(1) or (2), which identify two forms of whistle-blowing. An employee must “strictly comply” with the reporting requirements to obtain whistleblower protection. Contreras v. Ferro Corp., 73 Ohio St.3d 244, 652 N.E.2d 940 (1995), syllabus.

[491]*491 The Alleged Whistleblowing

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2014 Ohio 5458, 33 N.E.3d 12, 142 Ohio St. 3d 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-cardington-slip-opinion-ohio-2014.