Shingler v. Provider Services Holdings, L.L.C.

Citation: 2018 Ohio 2740Docket: 106383

Court: Ohio Court of Appeals; July 12, 2018; Ohio; State Appellate Court

Original Court Document: View Document

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Cindy Shingler appealed the dismissal of her wrongful discharge complaint against Provider Services Holdings, L.L.C. and Lafayette Point Nursing and Rehabilitation Center. The trial court dismissed the case with prejudice, determining that Shingler failed to meet the requirements for a whistleblower claim under Ohio's statute (R.C. 4113.52), leaving her without an adequate statutory remedy. Shingler contended that her common-law claim for wrongful discharge, based on public policy violations, was valid because she was allegedly terminated after reporting unauthorized patient care by an unlicensed employee to her supervisor and the Ohio Board of Nursing. 

Shingler's employment as director of nursing at Lafayette spanned from 2008 until her termination on August 8, 2012. She alleged that after reporting the unauthorized care, she was threatened by her supervisor and subsequently placed on administrative leave. Following a meeting with company representatives, she was compelled to sign a separation agreement terminating her employment. In her lawsuit filed on October 3, 2016, Shingler claimed her termination was retaliation for her whistleblower actions and violated public policy against such retaliation, seeking damages for lost wages, benefits, and emotional distress. The appellate court affirmed the trial court's judgment.

Shingler initiated a wrongful discharge claim against appellees on April 22, 2013, in the Cuyahoga County Court of Common Pleas. The case was transferred to Coshocton County in July 2013, and Shingler dismissed her complaint without prejudice in September 2016. Subsequently, appellees sought to transfer the venue back to Coshocton County, but the trial court denied this request. Appellees denied the allegations and raised affirmative defenses, including failure to state a claim and non-compliance with applicable whistleblower statutes. In July 2017, the trial court allowed appellees to file a combined motion to dismiss and for judgment on the pleadings, arguing that Shingler's claim failed to satisfy the necessary elements of her wrongful discharge claim and was barred by non-compliance with the whistleblower statute.

Shingler countered that appellees' motion was untimely and maintained that her common-law claim was valid due to the lack of available remedies under Ohio’s whistleblower statute, as she did not file a written report. She cited multiple statutes and regulations to support her claim. On September 17, 2018, the trial court dismissed her complaint with prejudice, referencing the requirements of R.C. 4723.341(C) and R.C. 4113.52, concluding that Shingler's failure to comply with these provisions barred her common-law claim. Shingler appealed, raising two issues: (1) the trial court's error in dismissing her claim when no alternative remedy existed, and (2) the dismissal for failure to state a claim despite a waiver of that defense by the defendants.

Shingler contends that the appellees waived their defense of failure to state a claim due to several reasons: (1) the defense was not included in their pre-answer venue transfer motion under Civ.R. 12(B)(2), (2) the parties stipulated in joint motions extending the discovery schedule that no dispositive motions would be filed, and (3) the trial court's journal entry affirmed that no dispositive motions were to be filed. However, this argument is deemed meritless. 

Civ.R. 12(B) mandates that defenses must be asserted in the responsive pleading unless made by motion, with specific exceptions allowing defenses like failure to state a claim to be raised in various ways, including in the answer or through a motion for judgment on the pleadings. Although appellees' Civ.R. 12(B)(6) motion to dismiss may have been untimely under Civ.R. 12(G), they can still raise the defense in their answer or by motion for judgment on the pleadings, as supported by case law. 

Furthermore, Civ.R. 12(C) allows for a motion for judgment on the pleadings after the pleadings are closed, provided it does not delay the trial. The trial court has discretion over its docket management, and since the court granted appellees leave to file their motion well before the trial date, it did not abuse its discretion. Consequently, Shingler's second assignment of error is overruled.

Shingler's complaint for wrongful discharge in violation of public policy was dismissed for failure to state a claim. She argued that her complaint was valid under specific Ohio Revised Code sections (R.C. 4723.03, 4723.341(C)) and related federal and state statutes. Shingler claimed that, due to her failure to file a written report as required by Ohio’s whistleblower statute (R.C. 4113.52), she lacked an adequate statutory remedy, thus allowing her to pursue a common-law claim. However, the appellees contended that the trial court correctly dismissed her claim, asserting that Shingler had available remedies under relevant statutes but did not meet their requirements. The court emphasized that a Civ.R. 12(C) motion for judgment on the pleadings only addresses legal questions and may dismiss a complaint if the plaintiff cannot present any factual basis for relief. The court further noted that the provisions related to waste management and environmental laws cited by Shingler were not applicable to her case, hence they were not considered in assessing her claim.

Appellees' motion, filed after their answer, is classified as a motion for judgment on the pleadings under Civ.R. 12(C), rather than a motion to dismiss under Civ.R. 12(B)(6). The notable distinctions are the timing of filing and the materials the court may consider: a Civ.R. 12(B)(6) motion is typically filed before the answer and is limited to the complaint's allegations, while a Civ.R. 12(C) motion can include the complaint, answer, and related exhibits. The court applies a similar standard for both motions, focusing on legal questions rather than factual disputes. Upon review, the court found that Shingler could not prove any facts to support her claim, leading to the dismissal of her complaint. In Ohio, employment is generally at-will, meaning an employer can terminate employees without liability, except in cases where termination violates a clear public policy, as outlined by constitutional or statutory provisions.

To establish a wrongful discharge claim based on public policy, a plaintiff must prove four key elements: (1) the existence of a clear public policy in a constitution, statute, regulation, or common law (clarity element); (2) that firing the employee under similar circumstances would threaten this public policy (jeopardy element); (3) that the dismissal was driven by actions linked to the public policy (causation element); and (4) that the employer had no overriding legitimate business reason for the dismissal (overriding justification element). The clarity and jeopardy elements are legal questions determined by the court, while causation and overriding justification are factual questions for the fact finder.

Ohio Revised Code (R.C.) 4723.03 prohibits unlicensed nursing practices and protects employees reporting such practices from retaliation, confirming the existence of a clear public policy. The case at hand focuses on the jeopardy element, which examines whether alternative methods exist to uphold the public policy through statutory remedies. The Ohio Supreme Court has indicated that if a statute provides its own remedies, it diminishes the need for a common-law wrongful discharge claim, as the statutory remedies sufficiently protect public interests. Courts will only acknowledge a common-law claim if no adequate remedy exists within the statutory framework.

Shingler contends that her failure to meet the requirements of R.C. 4113.52 prevents her from securing an adequate statutory remedy, thus allowing her to pursue a wrongful discharge claim based on public policy reflected in R.C. 4723.03 and 4723.341. The court disagrees, asserting that her noncompliance with R.C. 4113.52 undermines her wrongful discharge claim. R.C. 4723.33 and 4723.341 provide specific protections for employees reporting violations related to R.C. Chapter 4723, incorporating the requirements and remedies from R.C. 4113.51 to 4113.53. 

R.C. 4723.33 grants whistleblower protection to registered nurses and similar professionals who report violations or participate in related investigations, safeguarding them against retaliation as outlined in R.C. 4113.51 to 4113.53. Additionally, R.C. 4723.341 protects individuals reporting to the board of nursing or testifying in related adjudications, shielding them from civil liability and employer discipline unless there is evidence of fraud or bad faith. Employees disciplined in violation of this provision retain the rights outlined in R.C. 4113.52 and 4113.53.

R.C. 4113.52 mandates that employees aware of certain violations must report them to their employer, detailing the violation. If retaliatory action occurs following such a report, the employee may seek civil remedies within 180 days in a court of common pleas. The court concludes that statutory remedies under R.C. 4723.33 and 4723.341 exist, incorporating the rights and responsibilities for whistleblowing employees as stipulated in R.C. 4113.52, thereby addressing the societal need to protect those who report violations in R.C. Chapter 4723.

Shingler's claim for wrongful discharge under R.C. 4113.52 and R.C. 4723.341 was denied because she failed to fulfill her obligations under the whistleblower statutes. The statutes offer protections for employees reporting violations, but compliance is necessary for recovery. Citing precedent, the document references cases where employees could not maintain wrongful discharge claims after failing to meet statutory requirements, reinforcing that noncompliance invalidates claims under similar laws. Shingler's argument for a common-law claim was rejected as she did not demonstrate that her termination was intended to impede her from filing a report or that she faced obstacles in meeting statutory requirements. The court noted that her failure to comply does not imply the statutory remedy is inadequate, and no authority was provided to support her position that noncompliance with statutory requirements could lead to a valid common-law claim in this context.

The court determined that a common-law claim for wrongful discharge based on public policy against unauthorized nursing practice and employee retaliation for reporting violations was not warranted. The decision referenced prior cases where statutory remedies sufficiently protected public policy interests, leading to the conclusion that Shingler failed to meet the "jeopardy" element necessary for such a claim. Consequently, the trial court's dismissal of her complaint was upheld.

Shingler, who served as the Director of Nursing from 2008 until her termination in August 2012, reported alleged unauthorized patient care by a marketing secretary. After receiving multiple complaints from certified nursing assistants, she escalated the issue to her employer and the Ohio Board of Nursing. Following her reports, she was placed on administrative leave and subsequently required to sign a separation agreement without legal counsel. 

A dissenting opinion expressed concern over the trial court’s dismissal, emphasizing the strong public policy implications of unauthorized patient care, particularly given the vulnerability of nursing home residents. The dissent referenced a previous Ohio Supreme Court ruling recognizing that employment at will should not override public policy considerations.

A plaintiff must establish four elements to succeed in a Greeley claim, particularly focusing on the jeopardy element, which examines whether the employee has a proper remedy for wrongful termination when discharged in violation of public policy. In this case, Shingler's situation did not provide an adequate remedy following her swift retaliatory dismissal. After reporting an unlicensed marketing secretary's unauthorized nursing activities, Shingler was compelled to resign just nine days later, with five of those days spent on administrative leave. This raises questions about whether Provider Services terminated her employment to obstruct her from filing a report. The Ohio Supreme Court, in Kulch v. Structural Fibers, Inc., acknowledged that a wrongfully discharged employee may pursue a Greeley claim alongside, or instead of, a statutory cause of action, but cannot receive double recovery. Given the circumstances, the statutory remedies under R.C. Chapter 4723 and R.C. 4113.52 were deemed inadequate. Ultimately, the record does not definitively show that Shingler could not present any facts supporting her claim, indicating that her case's dismissal at this stage was premature.