[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Lee v. Cardington, Slip Opinion No. 2014-Ohio-5458.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-5458
           LEE, APPELLEE, v. VILLAGE OF CARDINGTON, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as Lee v. Cardington, Slip Opinion No. 2014-Ohio-5458.]
Employment relations—R.C. 4113.52—Whistleblower protection—Reporting of
        employer’s criminal violations—Standards that must be met to qualify for
        protection.
    (No. 2013-1400—Submitted July 8, 2014—Decided December 17, 2014.)
              APPEAL from the Court of Appeals for Morrow County,
                          No. 12CA0017, 2013-Ohio-3108.
                              ______________________
        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
                              SUPREME COURT OF OHIO




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 walls 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.




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          {¶ 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 Environment 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 continuously 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.




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                             SUPREME COURT OF OHIO




       {¶ 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
council 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



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                                    January Term, 2014




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-Ohio-3108.
        {¶ 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
whistleblowing.       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.
                               The Alleged Whistleblowing
        {¶ 18} We begin by underscoring that Lee seeks whistleblower protection
based on the concerns he expressed regarding the village, not CYT.1 As he did in
his memorandum opposing summary judgment, Lee argues that the village was
not only a victim of CYT’s illegal glycol discharge, but was the perpetrator of its
own crimes, given its failure to repair the damage the glycol had caused to the
WWTP. First, Lee cites R.C. 6111.04(C), which prohibits a permit holder from
discharging sewage at levels exceeding those in the permit. He explains that by
not repairing the equipment damage, the village was at risk of violating the

1
  Lee’s complaint filed in common pleas court was less than clear on this point. It alleged only
that the village retaliated against Lee for “reporting the problems with” the WWTP. Lee did not
explain how these “problems” constituted any of the criminal violations covered by R.C.
4113.52(A)(1) or (2) until he filed his memorandum opposing summary judgment.




                                               5
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discharge limitations in its operating permit. Second, Lee makes a conclusory
reference to R.C. 2927.24(B)(1), which prohibits a person from knowingly
placing a hazardous chemical into a public water supply. Lee maintains that
although CYT was the source of the pollutant, the village was knowingly placing
the pollutant into the water supply.
            Lee Did Not Strictly Comply with R.C. 4113.52(A)(1) or (2)
       {¶ 19} Nevertheless, what Lee claims to have reported is demonstrably
different from what he actually reported. Even viewing the evidence in his favor
for purposes of summary judgment, see Bostic v. Connor, 37 Ohio St.3d 144, 146,
524 N.E.2d 881 (1988), the evidence shows only that Lee helped expose CYT’s
illegal discharge, not that he also reported crimes involving the village or that he
did so in strict compliance with R.C. 4113.52(A)(1) or (2).
                                R.C. 4113.52(A)(1)
       {¶ 20} R.C. 4113.52(A)(1) applies when an employee “becomes aware in
the course of the employee’s employment of a violation of any state or federal
statute or any ordinance or regulation of a political subdivision.”             R.C.
4113.52(A)(1)(a). The violation must be one that the “employer has authority to
correct” and that the “employee reasonably believes * * * is a criminal offense
that is likely to cause an imminent risk of physical harm to persons or a hazard to
public health or safety, a felony, or an improper solicitation for a contribution.”
Id.
       {¶ 21} To report a violation, the employee must start with his or her
employer. The employee must orally report the violation to his or her supervisor
or other responsible officer and “subsequently shall file with that supervisor or
officer a written report that provides sufficient detail to identify and describe the
violation.” Id. If the employer does not correct or make a good faith effort to
correct the violation within 24 hours, the employee may then notify outside
authorities. Id.



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                               January Term, 2014




       {¶ 22} Lee did not satisfy the statute’s written-report requirement. There
is no written report in the record, only Lee’s own recollection of a “supervisor’s
report” that he gave to Ralley in 2009. As described in Lee’s deposition and
affidavit, the report identified the “equipment failures” that resulted from CYT’s
illegal discharge over the years.    The report identified the repairs that Lee
believed would be necessary “to keep the village operating within the parameters
of its permit which would prevent EPA violations.” Lee prepared the report at the
suggestion of a U.S. EPA official, who thought that village council could use it as
a “tool to seek reimbursement from CYT.”
       {¶ 23} Lee’s report of “equipment failures” does not qualify as a report
that sufficiently identifies and describes any crimes involving the village, as the
statute requires. Although Lee may have identified ways to “prevent” the WWTP
from committing a permit violation under R.C. 6111.04(C), he knew that the
WWTP had not yet committed such a violation. In his deposition, Lee admitted
that the WWTP had never lost its permit during his employment, and he
repeatedly told the village council that the WWTP continued to meet its permit
obligations.
       {¶ 24} Likewise, Lee’s written report did not reveal that the village was
knowingly placing glycol into the water supply. See R.C. 2927.24(B)(1). By the
time of his report, it was well known that CYT was the source of the glycol, and
Ohio EPA and U.S. EPA had definitively ruled out the WWTP as the source.
Further, Lee admitted that he had never prepared a written report expressing his
concerns about glycol—“only talk.”
       {¶ 25} In addition to being too little, Lee’s written report was too late.
R.C. 4113.52(A)(1)(a) requires the employee to file the report before notifying
outside authorities. This affords the employer an “opportunity to correct the
violation.” Contreras, 73 Ohio St.3d at 248, 652 N.E.2d 940. Here, Lee did not
give his written report to Ralley until 2009, after years of discussing the




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equipment failures with EPA officials. In this regard, Lee’s report is no different
from the one in Contreras, in which we found the report to be deficient because
the employee provided it “well after the matters had been revealed to a number of
sources outside” the employer. Id. at 249.
       {¶ 26} Even after viewing the evidence in Lee’s favor for purposes of
summary judgment, we conclude that it does not show that Lee strictly complied
with the reporting procedure in R.C. 4113.52(A)(1).
                               R.C. 4113.52(A)(2)
       {¶ 27} We now turn to whether the concerns Lee voiced about the WWTP
constituted environmental whistleblowing under R.C. 4113.52(A)(2).             An
employee qualifies for protection under that statute only after (1) discovering a
criminal violation of R.C. Chapter 3704, 3734, 6109, or 6111 and (2) providing
oral or written notification to “any appropriate public official or agency that has
regulatory authority over the employer and the industry, trade, or business in
which the employer is engaged.” R.C. 4113.52(A)(2).
       {¶ 28} Although Lee was in constant contact with EPA officials at the
state and federal level, there is no evidence that Lee notified them about any
crimes perpetrated by the village. Lee worked with the authorities to expose the
illegal discharge from CYT and then to repair the damage the discharge caused to
the WWTP. As Lee put it in his deposition, “we were trying to resolve a problem
that we were being stymied with.”
       {¶ 29} Lee repeats his argument that he reported a permit violation under
R.C. 6111.04(C). But again, both Lee and Ohio EPA knew that the WWTP was
continuing to satisfy the conditions of its permit. Lee also knew that the village
was working to repair the problems at the WWTP, both by seeking restitution
from CYT and by considering proposals from an outside engineering firm. Even
assuming that Lee may have reported a permit violation to authorities, he lacked a
“reasonable basis” to do so. R.C. 4113.52(C).



                                        8
                                January Term, 2014




       {¶ 30} As for Lee’s claim that the village was knowingly discharging a
hazardous pollutant in violation of R.C. 2927.24(B)(1), that statute is not among
those qualifying for protection under R.C. 4113.52(A)(2). In any event, Lee did
not have any reasonable basis to believe that the WWTP was knowingly
discharging glycol into the water. Ohio EPA and U.S. EPA told him that the
WWTP was not the source of the glycol.
       {¶ 31} On this evidence, we conclude that Lee did not satisfy the
procedural requirements of R.C. 4113.52(A)(1) or (2). Therefore, he did not
qualify for whistleblower protection.
                                     Conclusion
       {¶ 32} Having concluded that Lee did not qualify for whistleblower
protection, we reverse the judgment of the court of appeals and reinstate the
judgment of the trial court.
                                                               Judgment reversed.
       O’CONNOR, C.J., and O’DONNELL, LANZINGER, and KENNEDY, JJ., concur.
       PFEIFER and O’NEILL, JJ., dissent.
                       ______________________________
       PFEIFER, J., dissenting.
       {¶ 33} This case should be dismissed as improvidently allowed. It is
highly fact specific and does not involve an important or novel legal question, but
rather the application of settled law.
       {¶ 34} Barring a dismissal of this appeal, the better course is to allow the
plaintiff to proceed with his case. It is possible that the water discharged after
treatment by the village of Cardington’s wastewater treatment plant contains
levels of chemicals and compounds that are not permitted. As the court of
appeals noted, in that situation, “the Village is violating the law.” 5th Dist.
Morrow No. 12CA0017, 2013-Ohio-3108, ¶ 24.              Further proceedings are
necessary in order to determine whether Donald Lee is able to prove his case




                                         9
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given all of the facts. There are insufficient grounds to support the majority’s
conclusion that the village is entitled to summary judgment.
       {¶ 35} Instead of reversing, I would dismiss the appeal or would affirm
the judgment of the court of appeals. I dissent.
       O’NEILL, J., concurs in the foregoing opinion.
                      ______________________________
       Newhouse, Prophater, Letcher & Moots, L.L.C., Michael S. Kolman, and
D. Wesley Newhouse, for appellee.
       O’Toole, McLaughlin, Dooley & Pecora Co., L.P.A., and John D.
Latchney, for appellant.
       Trent A. Dougherty, urging affirmance for amicus curiae Ohio
Environmental Council.
       Valore & Gordillo, L.L.P., and Gregory A. Gordillo; and The Gittes Law
Group and Frederick M. Gittes, urging affirmance for amicus curiae Ohio
Employment Lawyers Association.
                      ______________________________




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