[Cite as McGlothen v. Fairborn, 2019-Ohio-141.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     GREENE COUNTY

 DAVID MCGLOTHEN                                  :
                                                  :
         Plaintiff-Appellant                      :   Appellate Case No. 2018-CA-30
                                                  :
 v.                                               :   Trial Court Case No. 2017-CV-0454
                                                  :
 CITY OF FAIRBORN                                 :   (Civil Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellee                       :
                                                  :

                                             ...........

                                             OPINION

                          Rendered on the 18th day of January, 2019.

                                             ...........

SHAWN A. ROMER, Atty. Reg. No. 0084251, 2012 W. 25th Street, Suite 716, Cleveland,
Ohio 44113
      Attorney for Plaintiff-Appellant

JEFFREY C. TURNER, Atty. Reg. No. 0063154, DAWN M. FRICK, Atty. Reg. No.
0069068, and KATHERINE L. EPLING, Atty. Reg. No. 0091577, 8163 Old Yankee Street,
Suite C, Dayton, Ohio 45458
       Attorneys for Defendant-Appellee

                                            .............
                                                                                           -2-


HALL, J.

       {¶ 1} David McGlothen appeals from the trial court’s entry of summary judgment

for the City of Fairborn on his claim for wrongful discharge in violation of public policy. We

conclude that sections 106.1 and 307.1 of the Ohio Building Code do not express a clear

public policy as is necessary to support a claim for retaliatory employment action against

an employee who enforces those sections. Consequently McGlothen failed to meet his

burden to establish that Fairborn violated a clear public policy when it discharged him,

and we affirm.

                  I. Summary-Judgment Evidence and Procedural History

       {¶ 2} McGlothen was the Chief Building Official for the City of Fairborn. In that role,

he was responsible for overseeing all the other building inspectors and interpreting and

enforcing the Ohio Building Code. McGlothen reported directly to the Community

Development Director, then Michael Gebhart. McGlothen also regularly interacted with

Fairborn’s Economic Development Director, then Rob Anderson.

       {¶ 3} In early 2016, Anderson was contacted about a company called Tangible

Solutions, which specialized in additive manufacturing and was considering expansion to

Fairborn. A building owned by Industrial IRG was chosen for Tangible to use. The plan

was for Tangible to lease part of that building and alter the leased space to suit its needs.

The first phase of the project was to get the shell of the building ready for occupancy. The

building had been vacant for a while, and it was known that there were existing violations

of the Ohio Building Code and other issues. IRG hired Construction Resources 1 (CR1)

to do the work, which included resolving issues with the roof, mold, fire suppression, and

the fire alarm.
                                                                                        -3-


       {¶ 4} There were several meetings, emails, and conversations about the repairs

and alterations among those involved in the project. McGlothen and CR1’s architect

differed in their interpretations of what the Ohio Building Code required. McGlothen grew

concerned because he believed that CR1 was working on the building without a plan

approved by the city. In particular, McGlothen was concerned that specialized fire-

suppression systems were needed. McGlothen believed that Gebhart was pressuring him

to let the work continue, but McGlothen did not back down. On January 6, 2017,

McGlothen issued an adjudication order requiring that work on the project stop until plans

that complied with the Ohio Building Code were approved.

       {¶ 5} The next day, January 7, McGlothen sent an email to CR1 representative

David Brown (and copied it to the city’s solicitor) saying, in part:

              We have had numerous meetings and other communications over

       the last few months. I have supplied you with copies of sections from the

       building code which explains that the building code is mandated by the Ohio

       Revised Code and therefore is State law. I understand that you have

       encountered building officials in other jurisdictions that have chosen to

       ignore their legal requirement to follow the rules specified in the Ohio

       Revised Code.

              I do not feel compelled to ignore these rules based on the fact that

       someone else will. I am not compelled to lower my enforcement actions to

       the lowest level achieved by my peers. I hope that you understand that you

       are subject to these same rules.

              I take exception with your efforts to use your link to a City supported
                                                                                          -4-


       project to coerce my superiors into allowing you to ignore the rules of the

       State and trying to damage my name in the process. I am not an attorney,

       but I believe there are laws against coercion. I take great pride in the fact

       that I hold more State of Ohio Certifications than any of my peers in the

       Miami Valley and I do not appreciate your efforts to discredit me.

In the email, McGlothen also criticized the way that the project has been handled and

emphasized the importance of building plans, regular inspections, and his safety

concerns. In response to the email, Brown contacted Rob Anderson and expressed

concerns about continuing with the project. Brown said that he was concerned about IRG

or Tangible being retaliated against, and he expressed doubt about IRG remaining in

Fairborn.

       {¶ 6} McGlothen sent the email just before he left on a planned vacation. When he

returned to work on January 18, McGlothen was asked to meet with Gebhart, the acting

City Manager (Peter Bales), and others. At the meeting, McGlothen was discharged from

his employment with the city. McGlothen said that he was told the January 7 email was

“the last straw” in a series of customer service complaints that the city had received.

       {¶ 7} In July 2017, McGlothen filed a complaint asserting three claims against the

City of Fairborn, Peter Bales, and Michael Gebhart: (1) violation of Ohio’s Whistleblower

Act, (2) wrongful discharge in violation of the public policy set forth in the whistleblower

statute; and 3) wrongful discharge in violation of the public policy set forth in sections

106.1 and 307.1 of the Ohio Building Code. Later, McGlothen voluntarily dismissed Bales

and Gebhart, leaving Fairborn as the only defendant.

       {¶ 8} Fairborn moved for summary judgment on all three claims. On July 10, 2018,
                                                                                         -5-


the trial court granted the motion for summary judgment on McGlothen’s three claims.

        {¶ 9} McGlothen appeals.

                                         II. Analysis

        {¶ 10} The sole assignment of error alleges:

               The trial court erred when it granted summary judgment in favor of

        Defendant and held that there is no clear public policy found in the Ohio

        Building Code and/or favoring workplace fire safety for purposes of

        satisfying a claim for wrongful termination in violation of public policy.

McGlothen challenges here only the trial court’s entry of summary judgment on his claim

for wrongful discharge in violation of the public policy expressed in the Ohio Building

Code.

        {¶ 11} Summary judgment is proper if the moving party shows “(1) that there is no

genuine issue as to any material fact; (2) that the moving party is entitled to judgment as

a matter of law; and (3) that reasonable minds can come to but one conclusion, and that

conclusion is adverse to the party against whom the motion for summary judgment is

made, who is entitled to have the evidence construed most strongly in his favor.” Harless

v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 64 (1978); Civ.R. 56(C).

        {¶ 12} “In Ohio, the common-law doctrine of employment at will governs

employment relationships.” Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-

4609, 956 N.E.2d 825, ¶ 11. But “a cause of action for wrongful discharge in violation of

public policy may exist as an exception to the general rule.” Id., citing Painter v. Graley,

70 Ohio St.3d 377, 639 N.E.2d 51 (1994), paragraph three of the syllabus, and Greeley

v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d 981 (1990),
                                                                                             -6-


paragraph one of the syllabus. There are four elements that a plaintiff must establish to

succeed on a claim of wrongful discharge in violation of public policy: “(1) a clear public

policy exists and is manifested in a state or federal constitution, in statute or administrative

regulation, or in the common law (the clarity element), (2) dismissing employees under

circumstances like those involved in the plaintiff’s dismissal would jeopardize the public

policy (the jeopardy element), (3) the plaintiff’s dismissal was motivated by conduct

related to the public policy (the causation element), and (4) the employer lacked an

overriding legitimate business justification for the dismissal (the overriding-justification

element).” (Citation omitted.) Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-

Ohio-2723, 950 N.E.2d 938, ¶ 9. “The clarity and jeopardy elements involve questions of

law; the causation and overriding-justification elements involve questions of fact.”

(Citation omitted.) Id.

       {¶ 13} The parties agree that the clarity element is at issue here. “Under the clarity

analysis, we must determine whether there exists in Ohio a public policy against

retaliatory employment actions like the one alleged by [the plaintiff].” Id. at ¶ 11. The “clear

public policy” may “deriv[e] from the state or federal constitutions, a statute or

administrative regulation, or the common law.” (Citations omitted.) Dohme at ¶ 18. Here,

McGlothen cites sections 106.1 and 307.1 of the Ohio Building Code as the source of the

public policy. As such, these sections and the intent behind their promulgation must be

the focus of our analysis.

       {¶ 14} These are the sections of the Building Code on which McGlothen relies:

       106.1 Submittal documents. Construction documents, statement of

       special inspections required and other data shall be submitted in two or
                                                                                           -7-


      more sets with each application for an approval. Before beginning the

      construction of any building for which construction documents are required

      under section 105, the owner or the owner’s representative shall submit

      construction documents to the building official for approval. When

      construction documents have been found to be in compliance with the rules

      of the board of building standards in accordance with section 107 by a

      certified building department, that determination of compliance shall be

      deemed sufficient to obtain approval for construction pursuant to section

      105.2 and the building official shall issue the certificate of plan approval.* * *

      ***

      307.1 High-hazard Group H. High-hazard Group H occupancy includes,

      among others, the use of a building or structure, or a portion thereof, that

      involves the manufacturing, processing, generation or storage of materials

      that constitute a physical or health hazard in quantities in excess of those

      allowed in control areas complying with Section 414, based on the

      maximum allowable quantity limits for control areas set forth in Tables

      307.1(1) and 307.1(2). Hazardous occupancies are classified in Groups H-

      1, H-2, H-3, H-4 and H-5 and shall be in accordance with this section, the

      requirements of Section 415 and the fire code. * * *

(Emphasis sic.).

      {¶ 15} The issue here is whether these sections express a clear public policy

prohibiting employment action against employees related to their enforcement of these

sections. We note that neither section expressly prohibits retaliation against employees
                                                                                          -8-


who enforce these sections of the Building Code. Indeed, neither section prohibits

retaliation against an employee period. The intent of section 106.1 appears to be to

establish the information that one must provide to the building official in order to obtain

approval for construction plans. And the intent of section 307.1 appears to be to define

what uses fall under the high-hazard occupancy classification and what rules such

occupancies must follow. The public policy underlying these sections does not justify the

creation of an exception to the employment-at-will doctrine to protect employees like

McGlothen.

       {¶ 16} To be sure, the public policy underlying these sections, and the Building

Code generally, is to help ensure that buildings are safe, which includes mitigating the

risk of fire hazards. This leads to workplaces that are safe from fire hazards. But that

public policy does not justify the creation of an exception to the employment-at-will

doctrine to protect employees like McGlothen, who enforce the building code. As the

Supreme Court of New Mexico has said, “[e]very statute enacted by the legislature is in

a sense an expression of public policy but not every expression of public policy will suffice

to state a claim for retaliatory discharge.” Shovelin v. Central New Mexico Elec. Co-op,

Inc., 115 N.M. 293, 850 P.2d 996, 1006 (1993).

       {¶ 17} A wrongful-discharge claim protects employees only when the discharge

violates a clear mandate of public policy prohibiting retaliatory employment action

expressed in statutory enactments, administrative rules, et cetera. For example, the Ohio

Supreme Court has concluded that R.C. 4123.90, which expressly prohibits retaliation

against injured workers who have filed, instituted, or pursued a workers’ compensation

claim, “expresses a clear public policy prohibiting retaliatory employment action against
                                                                                           -9-

injured employees.” Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-

2723, 950 N.E.2d 938, ¶ 22. The Court has also concluded that Ohio’s Whistleblower

Statute, which protects employees for reporting certain information to outside authorities

if certain requirements are satisfied, expresses a clear public policy protecting employees

who report certain matters from retaliatory employment action. Kulch v. Structural Fibers,

Inc., 78 Ohio St.3d 134, 153, 677 N.E.2d 308 (1997). Similarly, the Court has concluded

that the federal Occupational Safety and Health Act (OSHA) expresses “the clear public

policy of this state encouraging safety in the workplace and forbidding retaliation against

those who file OSHA complaints aimed at correcting unsafe and unhealthy working

conditions.” Id. at 154.

       {¶ 18} The sections of the Ohio Building Code that McGlothen relies on as support

for his public-policy claim merely state a procedural requirement (section 106.1) and a

use and occupancy classification (section 307.1). Neither section is directly related to

workplace fire safety. Compare Hale v. Volunteers of Am., 158 Ohio App.3d 415, 2004-

Ohio-4508, 816 N.E.2d 259, ¶ 47 (1st Dist.) (holding that the sections of the Ohio

Administrative Code that plaintiffs relied on as support for their public-policy claim “merely

provided baseline technical criteria” that the defendant had to meet in order to be licensed

to operate); Morris v. Dobbins Nursing Home, 12th Dist. Clermont No. CA2010-12-102,

2011-Ohio-3014, ¶ 26 (sections of the Code of Federal Regulations that plaintiff relied on

“merely provided baseline technical criteria” that defendant had to meet in order to

operate the nursing home facility); Lanzer v. Louisville, 2016-Ohio-8071, 75 N.E.3d 752,

¶ 38 (5th Dist.) (the statute and administrative code sections on which plaintiff relied were

procedural in nature, “detailing the procedure which must be followed to gain access to
                                                                                         -10-

premises for the purposes of conducting inspections”); Gargas v. Streetsboro, 11th Dist.

Portage No. 2000-P-0095, 2001 WL 1077828, *7 (Sept. 14, 2001) (saying that the

statutes and code sections on which plaintiff relied “identifying how building construction

is to be inspected, defining who has the legal authority to conduct such inspections, and

explaining how inspectors are certified in enforcing building laws” did not show a clear

public policy or that discharge to prevent enforcement of building laws violated that public

policy). Any exception to the employment-at-will doctrine should be narrowly applied. See

Dean v. Consol. Equities Realty #3, L.L.C., 182 Ohio App.3d 725, 2009-Ohio-2480, 914

N.E.2d 1109, ¶ 12 (1st Dist.). Neither section 106.1 or 307.1 expresses a clear public

policy against discharging an employee for enforcing the Ohio Building Code sufficient to

warrant abrogating the employment-at-will doctrine.

       {¶ 19} Finally, McGlothen quotes from our decision in Dohme in which we found

“a clear public policy favoring workplace fire safety.” Dohme, 170 Ohio App.3d 593, 2007-

Ohio-865, 868 N.E.2d 701, ¶ 24 (2d Dist.). “Therefore,” we said, “retaliation against

employees who raise concerns relating to workplace fire safety contravenes a clear public

policy.” Id. But we made our finding, based on various state and federal statutes and

regulations, sua sponte. The Ohio Supreme Court reversed our judgment, stating: “[A]

court may not presume to sua sponte identify the source of that policy. * * * An appellate

court may not fill in the blanks on its own motion.” Dohme v. Eurand Am., Inc., 130 Ohio

St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825, ¶ 23.

       {¶ 20} The Ohio Building Code, and sections 106.1 and 307.1 in particular, does

not encourage workplace fire safety by manifesting a clear public policy that would

prohibit employment action against those who enforce the building code. These sections
                                                                                     -11-


therefore do not express a clear public policy for purposes of supporting a wrongful

discharge claim.

                                     III. Conclusion

      {¶ 21} Because McGlothen failed to establish that he was discharged in violation

of a clear public policy, he has failed to satisfy the clarity element of his wrongful-

discharge claim as a matter of law. Consequently, McGlothen cannot succeed on his

claim for wrongful discharge in violation of public policy, and the trial court properly

granted Fairborn summary judgment on the claim. The sole assignment of error is

overruled.

      {¶ 22} The trial court’s judgment is affirmed.

                                    .............



DONOVAN, J. and TUCKER, J., concur.


Copies sent to:

Shawn A. Romer
Jeffrey C. Turner
Dawn M. Frick
Katherine L. Epling
Hon. Stephen Wolaver
