               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0070n.06

                                       Case No. 17-3864

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                               FILED
ERIN O’CONNOR,                                      )                     Feb 12, 2018
                                                                      DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellant,                         )
                                                    )     ON APPEAL FROM THE UNITED
v.                                                  )     STATES DISTRICT COURT FOR
                                                    )     THE SOUTHERN DISTRICT OF
NATIONWIDE CHILDREN’S HOSPITAL,                     )     OHIO
                                                    )
       Defendant-Appellee.                          )


       BEFORE: MOORE, COOK, and McKEAGUE, Circuit Judges.

       COOK, Circuit Judge. Erin O’Connor suffered an injury while working for Nationwide

Children’s Hospital (NCH). When NCH discharged her after she had exhausted her FMLA

leave, O’Connor sued for, among other claims, wrongful termination in violation of Ohio public

policy. The district court dismissed the claim, and we AFFIRM.

                                               I.

       O’Connor once worked as a perioperative technician at NCH in Columbus, Ohio. After

an NCH elevator allegedly closed on her shoulder, O’Connor initiated a workers’ compensation

claim and was placed on FMLA leave. NCH terminated her employment after O’Connor had

exhausted her leave.

       O’Connor sued NCH on four grounds in state court. After removal, the district court

dismissed three counts following NCH’s motion to dismiss for failure to state a claim under Rule
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12(b)(6) of the Federal Rules of Civil Procedure and granted summary judgment to NCH on the

fourth. She appeals the dismissal of only one claim—wrongful discharge in violation of Ohio

public policy, also known as a “Greeley claim.”               See Greeley v. Miami Valley Maint.

Contractors, Inc., 551 N.E.2d 981, 987 (Ohio 1990).

                                                   II.

                                                   A.

        We review de novo the district court’s dismissal of O’Connor’s complaint for failure to

state a claim under Rule 12(b)(6). See Robbins v. New Cingular Wireless PCS, LLC, 854 F.3d

315, 318 (6th Cir. 2017).        We must accept the complaint’s allegations as true, draw all

reasonable inferences in favor of O’Connor, and determine whether the complaint presents

sufficient facts to state a facially plausible claim to relief. Id. at 319.

                                                   B.

        Ohio is generally an employment-at-will state. Wiles v. Medina Auto Parts, 773 N.E.2d

526, 529 (Ohio 2002).         That is, an employer and employee may end their employment

relationship for any reason, and the employee may not sue for wrongful discharge. Id. But Ohio

courts recognize an exception when an employer has wrongfully discharged an employee in

violation of the state’s public policy. Greeley, 551 N.E.2d at 986; see also Painter v. Graley,

639 N.E.2d 51, 56 (1994) (noting that public policy may be discerned based on common law).

        A Greeley claim consists of four elements, each of which must be satisfied to establish a

claim for wrongful termination in violation of Ohio public policy:

        1. That [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).



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       2. That 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).

       4. The employer lacked overriding legitimate business justification for the
          dismissal (the overriding justification element).

Jermer v. Siemens Energy & Automation, Inc., 395 F.3d 655, 656 (6th Cir. 2005) (quoting

Collins v. Rizkana, 652 N.E.2d 653, 657–58 (Ohio 1995)). The first two elements present

questions of law; the second two, questions of fact. See Collins, 652 N.E.2d at 658.

       Although the district court deemed O’Connor’s allegations sufficient to satisfy the clarity

element at the motion-to-dismiss stage, it held otherwise with respect to the jeopardy element.

The jeopardy element endeavors to ensure that an employer understands the employee’s

grievance relates to a public policy before terminating that employee. As Jermer explained:

       [A]lthough complaining employees do not have to be certain that the employer’s
       conduct is illegal or cite a particular law that the employer has broken, the
       employee must at least give the employer clear notice that the employee’s
       complaint is connected to a governmental policy. It must be sufficiently clear
       from the employee’s statements that he is invoking governmental policy that a
       reasonable employer would understand that the employee relies on the policy as
       the basis for his complaint.

395 F.3d at 656; see also Trout v. FirstEnergy Generation Corp., 339 F. App’x 560, 567 (6th

Cir. 2009) (emphasizing Jermer’s “clear notice” rule regarding the jeopardy element).          In

Jermer, an employee alleged that he was terminated for complaining to his supervisor about the

air quality at his worksite. 395 F.3d at 655. This court affirmed the dismissal of Jermer’s

Greeley claim because Jermer “never connected his statements about air quality to governmental

policy or mentioned or in any way invoked governmental policy as the basis of his complaint”



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and, therefore, failed to show that his termination would “jeopardize” Ohio public policy. Id. at

656.

       O’Connor comes up short too. In her complaint, O’Connor alleges only that NCH

retaliated against her because she “complained to [NCH]’s managers that the elevator caused her

injury and was unsafe.” She pleads no facts indicating that she gave NCH “clear notice” of her

intent to vindicate a governmental policy favoring workplace safety vis-à-vis her workers’

compensation claim. Although an Ohio employee is not required to cite a specific law or statute

under siege, “his statements must indicate to a reasonable employer that he is invoking

governmental policy in support of, or as the basis for, his complaints.” Id. at 659. Complaining

generally about a precarious elevator on the premises is not enough to clearly notify employers

“that they are no longer dealing solely with an at-will employee, but with someone who is

vindicating a governmental policy.” Id.

       We are not persuaded by O’Connor’s suggestion that we bypass Jermer, a published

decision that binds us. See Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009).

That Jermer considered an appeal from a summary judgment grant rather than a Rule 12(b)(6)

dismissal offers no legitimate basis to mitigate its precedential value here, particularly because

the jeopardy element presents a question of law. See Collins, 652 N.E.2d at 658. And even

absent guidance from the Ohio Supreme Court on the “notice” aspect of the jeopardy element

considered in Jermer, several Ohio appellate courts cite it favorably. Beckloff v. Amcor Rigid

Plastics USA, LLC, No. S-16-041, 2017 WL 2709808, at *8 (Ohio Ct. App. June 23, 2017);

Gaskins v. Mentor Network-REM, No. 94092, 2010 WL 3814560, at *4 (Ohio Ct. App. Sept. 30,

2010); cf. Zwiebel v. Plastipak Packaging, Inc., No. 17-12-20, 2013 WL 4768768, at *8 (Ohio

Ct. App. Sept. 3, 2013) (citing Jermer for the proposition that a Greeley claim’s fundamental

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purpose “is to protect employees who seek to vindicate an important governmental policy; the

claim does not exist to vindicate an employee’s personal interest”).1

       The dissent would also cast aside Jermer based on Sutton v. Tomco Machining, Inc.—an

Ohio Supreme Court decision that determined an employee satisfied the jeopardy element by

notifying his employer about an injury one hour before the employer fired him. 950 N.E.2d 938,

946–47 (Ohio 2011). But Sutton is inapposite here because it presented a different issue, namely

whether a Greeley claim encompasses situations where “an injured employee suffers retaliatory

employment action after injury on the job but before the employee files a workers’ compensation

claim or institutes, pursues, or testifies in any workers’ compensation proceeding.” Id. at 941

(emphasis added). Because the remedy provisions in the Ohio workers’ compensation statute

could not be accessed by the Sutton plaintiff—who, having been fired before filing a workers’

compensation claim, was not an eligible claimant under the statute—the court held the jeopardy

element was satisfied. Id. at 947. That test for the jeopardy element has no application here,

however, as O’Connor was fired only after she filed a workers’ compensation claim and after she

had exhausted her FMLA leave.




       1
         NCH argues that O’Connor neglected to allege facts sufficient to satisfy the clarity
element. But we need not—and do not—reach that question given our conclusion regarding the
jeopardy element. We find unpersuasive, however, NCH’s assertion (and the district court’s
conclusion) that Ohio Rev. Code § 4123.90 somehow precludes O’Connor’s wrongful discharge
claim. O’Connor does not allege that NCH retaliated against her because she filed a workers’
compensation claim; therefore, it is immaterial to this case that § 4123.90 “provides the
exclusive remedy for employees claiming termination in violation of rights conferred by the
Workers’ Compensation Act.” Bickers v. W. & S. Life Ins. Co., 879 N.E.2d 201, 207 (Ohio
2007).


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       Nor are we swayed by O’Connor’s contention that the district court should not have

analyzed the jeopardy element because NCH did not argue it in moving to dismiss the complaint.

NCH raised (albeit cursorily) the argument in its motion, and elaborated further in its reply.

                                                III.

       Accordingly, we AFFIRM the district court’s judgment.




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       KAREN NELSON MOORE, Circuit Judge, dissenting. Since this court’s decision in

Jermer v. Siemens Energy & Automation, Inc., 395 F.3d 655 (6th Cir. 2005), the Ohio Supreme

Court decided Sutton v. Tomco Machining, Inc., 950 N.E.2d 938, 941, 946–47 (Ohio 2011),

which determined that an employee satisfied the jeopardy element when he notified his employer

about an injury one hour before his employer fired him. In light of Sutton, notification of an

injury is enough to satisfy the jeopardy element.1 See 950 N.E.2d at 941, 946–47. Because

O’Connor alleged that she “complained about being injured by the Defendant’s unsafe

workplace prior to her constructive termination of employment,” she adequately pleaded this

element of jeopardy. R. 8 (Compl. ¶ 19) (Page ID #63). See also Himmel v. Ford Motor Co.,

342 F.3d 593, 599–601 (6th Cir. 2003) (analyzing jeopardy element and holding employee

complaint about employer’s conduct believed to violate law satisfies jeopardy element).

       Moreover, NCH’s motion to dismiss discussed the jeopardy element in a one-sentence

footnote, see R. 3 (Mot. at 6 n.1) (Page ID #20), but this court has stated that “[i]ssues adverted

to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are

deemed waived.” Barany-Snyder v. Weiner, 539 F.3d 327, 331 (6th Cir. 2008) (alteration in

original) (quoting McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)). And “[r]aising


       1
          The majority asserts that Sutton is inapplicable because O’Connor did file a workers’
compensation claim. See Majority Op. at 5. However, the majority also states that it “find[s]
unpersuasive . . . NCH’s assertion (and the district court’s conclusion) that Ohio Rev. Code
§ 4123.90 somehow precludes O’Connor’s wrongful discharge claim” because “O’Connor [did]
not allege that NCH retaliated against her because she filed a workers’ compensation claim.” Id.
at 5 n.1. As the majority acknowledges, whether O’Connor filed a workers’ compensation claim
is irrelevant for this issue of jeopardy. Because O’Connor asserted that “[t]he Defendant
retaliated against the Plaintiff because she made complaints and was injured by the unsafe
workplace by terminating her employment in violation of the public policy of Ohio,” she
adequately pleaded jeopardy in satisfaction of Sutton. R. 8. (Compl. ¶ 20) (Page ID #63)
(emphasis added).


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the issue for the first time in a reply brief does not suffice.” Scottsdale Ins. Co. v. Flowers,

513 F.3d 546, 553 (6th Cir. 2008) (quoting Novosteel SA v. United States, 284 F.3d 1261, 1274

(Fed. Cir. 2002)).

       For these reasons, I respectfully dissent.




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