[Cite as Keehan v. Korenowski, 2017-Ohio-7050.]


STATE OF OHIO                   )                      IN THE COURT OF APPEALS
                                )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

DANIEL J. KEEHAN                                       C.A. No.   28221

        Appellant

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
NICHOLAS KORENOWSKI, et al.                            COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellees                                      CASE No.   CV-2015-05-2811

                                DECISION AND JOURNAL ENTRY

Dated: August 2, 2017



        HENSAL, Judge.

        {¶1}    Plaintiff-Appellant, Daniel Keehan, appeals the judgment of the Summit County

Court of Common Pleas, dismissing his complaint for failure to state a claim. This Court affirms

in part and reverses in part.

                                                  I.

        {¶2}    This appeal stems from the dismissal of Mr. Keehan’s complaint wherein he

asserted claims against Certech, Inc., Morgan Advanced Ceramics, Inc., Morgan Advanced

Materials, PLC (collectively, the “Morgan Defendants”), Nicholas Korenowski, Lynsey Poulton,

and John Stang for violations of Ohio’s whistleblower statute and wrongful discharge in

violation of public policy. Mr. Keehan’s complaint asserted that Mr. Korenowski, Ms. Poulton,

and Mr. Stang were employees of the Morgan Defendants who had the authority to discipline

him, or otherwise affect the terms and conditions of his employment.
                                                  2


       {¶3}    The complaint indicates that Mr. Keehan worked as a general manager for the

Morgan Defendants at their facility located in Twinsburg, Ohio. In order to meet their labor

needs, the Morgan Defendants had a contractual relationship with Flexible Staffing, a company

that provided temporary employees.         At the time Mr. Keehan started with the Morgan

Defendants in 2012, the Morgan Defendants were utilizing over 125 temporary employees from

Flexible Staffing. The complaint notes that the majority of Flexible Staffing personnel came

from Puerto Rico, and that Flexible Staffing sponsored their stay in the United States.

       {¶4}    According to Mr. Keehan, he noticed numerous illegal, unethical, and

unprofessional incidents involving Flexible Staffing’s employees and its owner.             With the

Morgan Defendants’ approval, Mr. Keehan began using a different staffing agency and reduced

the number of Flexible Staffing employees to less than 12 by 2014. Regarding the illegal,

unethical, and unprofessional incidents, Mr. Keehan alleged that: (1) several physical altercations

occurred between Flexible Staffing personnel; (2) Flexible Staffing’s owner tried to bribe him in

order to increase Flexible Staffing’s business with the Morgan Defendants; (3) a Flexible

Staffing employee tried to bribe an employee from Rapid Response (another staffing agency that

the Morgan Defendants used) in an effort to obtain green cards and licenses on behalf of Flexible

Staffing; (4) Rapid Response employees complained of harassment from Flexible Staffing

employees; (5) Flexible Staffing employees tried to recruit Rapid Response employees to work

for Flexible Staffing; (6) Flexible Staffing’s invoices failed to include any sales tax; (7) under the

guise of offering a new person to act as a liaison between Flexible Staffing and the Morgan

Defendants, Flexible Staffing’s owner arranged for a woman to proposition Mr. Keehan; (8)

Flexible Staffing employees had undisclosed felony convictions; (9) Flexible Staffing employees

were being paid under the table and their W-2s were being altered in order to obtain government
                                                3


subsidies; and (10) a Flexible Staffing employee was wanted for murder in Puerto Rico. Mr.

Keehan also alleged that he was informed that his predecessor was under investigation for

receiving kickbacks from Flexible Staffing.

          {¶5}   Mr. Keehan asserted that he informed Kristine Waggoner, the Morgan

Defendants’ Vice President of Human Resources, that he had concerns regarding employee

safety, and indicated that he wanted to terminate the use of Flexible Staffing. He also asserted

that he reported all “unethical conduct” by phone to the Morgan Defendants. Additionally, he

asserted that he notified the Morgan Defendants about certain nonconforming airline parts that

were being shipped to a client in Mexico, and that the nonconformity was likely to cause an

imminent risk of harm to persons and a hazard to public health and safety. According to Mr.

Keehan, the Morgan Defendants did not investigate any of the issues he brought to their

attention.

          {¶6}   Following his conversation with Ms. Waggoner, Mr. Keehan sent a letter to Mr.

Stang (President of Morgan Advanced Materials, North America), outlining some of these

issues.    Mr. Keehan later met with Ms. Poulton (Responsible Business Program and Risk

Manager for the Morgan Defendants) to report the issues regarding Flexible Staffing and his

concerns regarding “various illegal and unethical matters he had uncovered.” Ms. Poulton

allegedly indicated that she was unaware of these issues and requested a copy of the letter Mr.

Keehan sent to Mr. Stang. A few days after their meeting, Mr. Keehan was terminated.

          {¶7}   Following his termination, Mr. Keehan sued the Morgan Defendants and Mr.

Korenowski, Ms. Poulton, and Mr. Stang (collectively, “Defendants”), alleging violations of

Ohio’s whistleblower statute and wrongful discharge in violation of public policy. Defendants

removed the case to the United States District Court for Northern District of Ohio on the basis of
                                                4


diversity jurisdiction, but that court ultimately remanded the matter to the Summit County Court

of Common Pleas.      See Keehan v. Certech, Inc., N.D.Ohio No. 5:15-CV-1236, 2015 WL

8483179, *9 (Dec. 10, 2015).

       {¶8}    Upon remand, Defendants moved to dismiss Mr. Keehan’s complaint for failure

to state a claim under Civil Rule 12(B)(6). Mr. Keehan opposed the motion, but the trial court

entered judgment in favor of Defendants and dismissed Mr. Keehan’s complaint with prejudice.

Mr. Keehan now appeals, raising two assignments of error for our review.

                                               II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN IT FOUND THAT APPELLANT DID
       NOT STATE A CLAIM PURSUANT TO R.C. [] 4113.52

       {¶9}    In his first assignment of error, Mr. Keehan argues that the trial court erred by

dismissing his whistleblower claims against Defendants. This Court reviews a trial court’s

granting of a motion to dismiss for failure to state a claim under Civil Rule 12(B)(6) de novo.

State ex rel. Dellagnese v. Bath–Akron–Fairlawn Joint Economic Dev. Dist., 9th Dist. Summit

No. 23196, 2006-Ohio-6904, ¶ 8. “Dismissal is appropriately granted once all the factual

allegations of the complaint are presumed true and all reasonable inferences are made in favor of

the nonmoving party, and it appears beyond doubt that the nonmoving party cannot prove any set

of facts entitling him to the requested relief.” Id., citing State ex rel. Hanson v. Guernsey Cty.

Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992).

       {¶10} We begin our analysis with a review of Ohio’s whistleblower statute, codified at

Revised Code Section 4113.52. The statute “addresses the situation where an employee in the

course of his or her employment becomes aware of a violation of any state or federal statute or

any ordinance or regulation of a political subdivision that the employer has the authority to
                                                 5


correct, and the employee reasonably believes that the violation either is a criminal offense that

is likely to cause an imminent risk of physical harm or a hazard to public health or safety or is a

felony.” (Emphasis sic.) Contreras v. Ferro Corp., 73 Ohio St.3d 244, 246-247 (1995); R.C.

4113.52(A)(1)(a). “Under such circumstances, [the statute] requires that the employee orally

notify his or her supervisor or other responsible officer of the employer of the violation and

subsequently file with that person a written report that provides sufficient detail to identify and

describe the violation.” (Emphasis sic.) Id. at 247; R.C. 4113.52(A). “If an employer takes any

disciplinary or retaliatory action against an employee as a result of the employee’s having filed

[such] a report * * * the employee may bring a civil action” against the employer for injunctive

relief, or for the remedies set forth in the statute, including reinstatement of the employee’s

position and payment of back wages. R.C. 4113.52(D) and (E). Importantly, “[i]n order for an

employee to be afforded protection as a ‘whistleblower,’ such employee must strictly comply

with the dictates of R.C. 4113.52. Failure to do so prevents the employee from claiming the

protections embodied in the statute.” Contreras v. Ferro Corp., 73 Ohio St.3d 244 (1995),

syllabus.

       {¶11} We will first address Mr. Keehan’s argument regarding the trial court’s dismissal

of his claim against the individual defendants (i.e., Mr. Korenowski, Ms. Poulton, and Mr.

Stang). In their motion to dismiss, Defendants argued that the individual defendants did not

qualify as “[e]mployer[s]” under the whistleblower statute and, therefore, could not be subject to

liability thereunder. The trial court agreed, as do we.

       {¶12} The whistleblower statute defines “[e]mployer” as “any person who has one or

more employees. ‘Employer’ includes an agent of an employer, the state or any agency or

instrumentality of the state, and any municipal corporation, county, township, school district, or
                                                6


other political subdivision or any agency or instrumentality thereof.” R.C. 4113.51(B). Mr.

Keehan argues that the “agent of an employer” language clearly indicates that the statute

provides for individual liability.    In support of his argument, he cites Ohio’s unlawful

discrimination statute, which defines “[e]mployer” to include “any person acting directly or

indirectly in the interest of an employer.” R.C. 4112.01. He argues that because the Ohio

Supreme Court has held that a supervisor can be held liable under the unlawful discrimination

statute, and because that statute provides similar remedies to those available under the

whistleblower statute, the whistleblower statute should be interpreted to allow for individual

liability against his supervisors. See Genaro v. Cent. Transport, Inc., 84 Ohio St.3d 293, 300

(1999) (holding that “for purposes of R.C. Chapter 4112, a supervisor/manager may be held

jointly and/or severally liable with her/his employer for discriminatory conduct of the

supervisor/manager in violation of R.C. Chapter 4112.”). The trial court disagreed, holding that

the individual defendants could not be subject to liability under the whistleblower statute because

they were not “[e]mployer[s]” as defined therein.

       {¶13} The only appellate court to address this issue is the Fifth District’s decision in

Armstrong v. Trans-Service Logistics, Inc., which the trial court relied upon in reaching its

conclusion. 5th Dist. Coshocton No. 04CA015, 2005-Ohio-2723. There, the court rejected a

similar argument with respect to the Ohio Supreme Court’s holding in Genaro (i.e., because the

Ohio Supreme Court held that a supervisor could be held individually liable under the unlawful

discrimination statute, the whistleblower statute should be similarly interpreted to create

individual liability). In this regard, the Fifth District noted that the definition of “employer”

under the unlawful discrimination statute was far broader than its definition under the

whistleblower statute. Id. at ¶ 40. It further noted that the definition of “employer” under the
                                                   7


whistleblower statute aligned more closely with its definition under Title VII given its use of

“agency terminology[,]” which the Genaro decision acknowledged was far less reaching than the

definition of “employer” under the unlawful discrimination statute. Id. at ¶ 38, 40; Genaro at

299. Thus, the court was unpersuaded by the appellant’s argument in that regard.

        {¶14} Additionally, the Fifth District reasoned that the whistleblower statute speaks

directly to employer liability, and that the remedies afforded thereunder are “clearly designed to

be levied against the corporate entity as opposed to an individual supervisor.” Armstrong at ¶ 41.

It concluded that the statute’s reference to agents of the employer was included for the purpose

of respondeat superior liability of the employer, and held that the whistleblower statute does not

create individual liability for supervisors. Id. at ¶ 42, 43.

        {¶15} We are persuaded by the Fifth District’s analysis of Genaro and the comparison

the Fifth District drew between the definition of “[e]mployer” under the whistleblower statute,

and its definition under Title VII, which defines “employer” to include “any agent” of the

employer. 42 U.S.C. 2000e. In light of analogous case law indicating that the inclusion of

agency terminology in the definition of “employer” does not extend liability to individual

supervisors and/or employees, we agree with the Fifth District’s – and the trial court’s –

resolution of this issue. See, e.g., Yesudian ex rel. U.S. v. Howard Univ., 270 F.3d 969, 972

(D.C.Cir.2001) (“Even in cases arising under Title VII, which explicitly defines ‘employer’ as

including ‘any agent [of the employer]’ * * * we and all other circuits have held that the word

‘employer’ does not cover a supervisor in his personal capacity.”). We, therefore, hold that the

trial court did not err by dismissing Mr. Keehan’s whistleblower claim against the individual

defendants.
                                                 8


       {¶16} We now turn our attention to Mr. Keehan’s argument with respect to his

whistleblower claim against the Morgan Defendants. In their motion to dismiss, Defendants

argued that Mr. Keehan’s whistleblower claim against the corporate defendants failed because:

(1) the alleged violations contained in the complaint reflected the activities of Flexible Staffing

and its owner, and the Morgan Defendants had no authority to correct those alleged violations;

(2) Mr. Keehan failed to allege that he provided oral and written notice to the same supervisor;

and (3) Mr. Keehan failed to allege that he reported the alleged violations to the appropriate

external authority. We will address each argument in turn.

       {¶17} Regarding whether the Morgan Defendants had the authority to correct the

alleged violations, the trial court noted that Mr. Keehan’s complaint was unclear as to which

activities he attributed to Flexible Staffing, and which he attributed to the Morgan Defendants.

The trial court, therefore, found that “numerous questions and issues exist as to whether the

actions alleged were within the control of the Morgan Defendants, and Defendants [did] not

establish[] that [Mr. Keehan] can prove no set of facts upon which would allow recovery on this

particular issue.”

       {¶18} Next, the trial court addressed Defendants’ argument that Mr. Keehan failed to

allege that he provided oral and written notice to the same supervisor as required under Section

4113.52(A)(1)(a). The trial court agreed with Defendants. It noted, however, that Mr. Keehan

made general allegations throughout his complaint with respect to providing both oral and

written notice, but determined that these general allegations lacked sufficient factual support, and

that Mr. Keehan failed to clarify how the various reports and notifications applied to the claim at

issue. We disagree.
                                                 9


       {¶19} As previously noted, before an employee can avail himself of the protections

under the whistleblower statute, he must orally notify his supervisor “of a violation of any state

or federal statute or any ordinance or regulation of a political subdivision that the employee’s

employer has authority to correct, and the employee reasonably believes that the violation 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 [or] a felony * * *.” R.C. 4113.52(A)(1)(a). Subsequent to orally

notifying a supervisor, the employee is required to file a written report with that supervisor. Id.

       {¶20} Mr. Keehan alleged that he informed Ms. Waggoner “of his concerns regarding

the safety of the employees, the safety of his own family and his own safety and that he wanted

to terminate the services of Flexible Staffing[.]” He then alleged that “[a]fter he met with [Ms.]

Waggoner * * * and because he felt he needed to set the record straight as to what was

happening at the Twinsburg plant, [he] sent written notice to [Mr.] Stang through [his] attorney,

outlining these issues * * *.”

       {¶21} Next, Mr. Keehan alleged that he then met with Ms. Poulton and reported the

issues with Flexible Staffing, as well as his concerns regarding the various illegal and unethical

matters that he uncovered. His complaint states that:

       [he] discussed with [Ms.] Poulton his concerns with the Morgan Defendants’
       business relationship with Flexible Staffing, the physical altercations engaged in
       by Flexible Staffing’s temporary employees, the threats made by Flexible
       Staffing’s management directed at [him], the attempts to seduce [him] by
       representatives of Flexible Staffing, and Flexible Staffing’s practice of failing to
       include sales tax in its invoices submitted to the Morgan Defendants and/or
       certain John Doe Defendants. [He] also disclosed the suspected kickback scheme
       between Flexible Staffing and his predecessor, the attempted bribes, paying
       employees under the table and fraudulent W-2s. [He] further disclosed that
       nonconforming airline parts were being shipped which posed an imminent risk of
       physical harm and threatened public health and safety. [He] also disclosed to
       [Ms.] Poulton that he memorialized many of these incidents in a letter to John
       Stang as well as had previously provided notice to other management personnel.
                                                 10


       {¶22} Mr. Keehan then alleged that Ms. Poulton requested a copy of the letter he sent to

Mr. Stang. Despite alleging that she requested a copy, there is no specific allegation that he

provided it to her. Later in the complaint, however, he alleged that he “provided written reports

directly to: * * * [Ms. Poulton].” While Mr. Keehan’s complaint is not the picture of clarity, we

conclude that Mr. Keehan adequately alleged that he gave both oral and written notice to at least

one person: Ms. Poulton.

       {¶23} Lastly, the trial court found that Mr. Keehan failed to report the alleged violations

to the appropriate external authority.      On appeal, however, Defendants concede that the

whistleblower statute does not require an employee to report to an external authority, and assert

that the trial court’s reference to Mr. Keehan’s failure to do so was merely dicta that did not

affect its analysis. See R.C. 4113.52(A)(1)(a) (providing that an employee “may file a written

report” after the other statutory requirements are met).

       {¶24} In light of the forgoing, we hold that the trial court erred by dismissing Mr.

Keehan’s whistleblower claim against the Morgan Defendants on the basis that Mr. Keehan

failed to allege strict compliance with the statute’s requirements.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED WHEN IT FOUND THAT APPELLANT DID
       NOT STATE A CLAIM FOR WRONGFUL DISCHARGE IN VIOLATION OF
       PUBLIC POLICY.

       {¶25} In his second assignment of error, Mr. Keehan argues that the trial court erred by

dismissing his claim for wrongful discharge in violation of public policy. We agree.

       {¶26} Ohio law recognizes an exception to at-will employment when the employee’s

termination violates a statute and “thereby contravenes public policy.” Greeley v. Miami Valley

Maintenance Contractors, Inc., 49 Ohio St.3d 228 (1990), paragraph two of the syllabus. To
                                                11


establish a claim for wrongful discharge in violation of public policy, an employee must

establish that: (1) a “clear public policy existed and was manifested in a state or federal

constitution, 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) “[t]he plaintiff’s dismissal was

motivated by conduct related to the public policy (the causation element)”[;] and (4) “[t]he

employer lacked overriding legitimate business justification for the dismissal (the overriding

justification element).” (Emphasis omitted.) Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168,

2011-Ohio-4609, ¶ 12-16, quoting Painter v. Graley, 70 Ohio St.3d 377, 384 fn. 8 (1994).

While an employee may maintain a wrongful-discharge claim on the basis of a violation of the

public policy embodied in the whistleblower statue, the employee must first comply with that

statute’s requirements. Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134 (1997), paragraph

three of the syllabus.

       {¶27} In his complaint, Mr. Keehan argued that clear public policies exist relating to the

following statutes: Revised Code Chapter 5739 (“Sales Tax”); Title 57 of the Ohio Revised Code

(“Taxation”), Title 26 of the United States Code (“Internal Revenue Code”); 8 U.S.C. 1324a

(“Unlawful Employment of Aliens); and Revised Code Chapter 2307 (“Civil Actions”). He also

argued that clear public policies exist regarding the prohibition against obtaining government

subsidies based upon fraudulent information, as well as providing nonconforming goods that

pose a threat to public safety and can result in the imminent risk of physical harm.

       {¶28} In their motion to dismiss, Defendants argued that Mr. Keehan failed to allege

facts sufficient to support a claim for wrongful discharge because the statutes cited in his

complaint were not independent sources of public policy and, even if they were, he failed to
                                                 12


establish that Defendants, rather than Flexible Staffing, violated those public policies. They also

argued that, to the extent that any violations related to their conduct, those claims were derivative

of his whistleblower claim. Relatedly, they argued that Mr. Keehan’s wrongful-discharge claim

was simply derivative of his whistleblower claim, and that it could not survive a motion to

dismiss because Mr. Keehan failed to allege compliance with the whistleblower statute. Thus,

because he failed to allege compliance with the whistleblower statute, he could not establish a

claim for wrongful discharge based upon the public policy protecting whistleblowers.

       {¶29} The trial court agreed with Defendants that Mr. Keehan failed to allege any

sources of public policy independent of the public policy protecting whistleblowers. In this

regard, the trial court found that Mr. Keehan made “little or no distinction between the existence

of the law or statute, and the public policy upon which his claim is based” and that he appeared

to be “confusing the source of law itself as a public policy that prohibits, or would be jeopardized

by, his termination.” Given its determination that Mr. Keehan failed to allege strict compliance

with the whistleblower statute, the trial court held that his derivative wrongful-discharge claim

likewise failed.

       {¶30} Assuming without deciding that the trial court properly determined that Mr.

Keehan’s wrongful-discharge claim was derivative of his whistleblower claim, given our

resolution of the previous assignment of error, we hold that the trial court erred by dismissing

Mr. Keehan’s derivative wrongful-discharge claim on the basis that he failed to allege strict

compliance with the whistleblower statute.        Mr. Keehan’s second assignment of error is

sustained on that basis.
                                                  13


                                                 III.

       {¶31} Mr. Keehan’s first assignment of error is overruled to the extent that he argues

that the trial court erred by dismissing his whistleblower claim against the individual defendants.

Mr. Keehan’s first assignment of error is sustained as it relates to the trial court’s dismissal of his

whistleblower claim against the Morgan Defendants. Mr. Keehan’s second assignment of error

is sustained. The judgment of the Summit County Court of Common Pleas is affirmed in part

and reversed in part.

                                                                           Judgment affirmed in part
                                                                               and reversed in part.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                        JENNIFER HENSAL
                                                        FOR THE COURT
                                       14




CARR, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

MICHAEL G. POLITO, JOSEPH T. BURKE, NATHANIEL G. SZEP, and ASHLEY E.
LOYKE, Attorneys at Law, for Appellant.

REBECCA J. BENNETT and JACLYN C. STAPLE, Attorneys at Law, for Appellees.
