[Cite as Alexander v. Cleveland Clinic Found., 2012-Ohio-1737.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 95727




                                NATHAN ALEXANDER
                                                           PLAINTIFF-APPELLANT

                                                     vs.

                CLEVELAND CLINIC FOUNDATION
                                                           DEFENDANT-APPELLEE




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-706351

        BEFORE: Jones, J., Blackmon, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED: April 19, 2012
ATTORNEY FOR APPELLANT

Michael T. Conway
Michael T. Conway and Co.
3456 Sandlewood Drive
Brunswick, Ohio 44212


ATTORNEYS FOR APPELLEE

Christopher G. Keim
Michael N. Chesney
Kelly S. Lawrence
Frantz Ward LLP
2500 Key Center
127 Public Square
Cleveland, Ohio 44114
LARRY A. JONES, SR., J.:

       {¶1} This appeal is before this court on remand from the Ohio Supreme Court for

application of Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, 956

N.E.2d 825.

       {¶2} In Alexander v. Cleveland Clinic Found., 8th Dist. No. 95727,

2011-Ohio-2924, (“Alexander I”), this court reversed the trial court’s grant of summary

judgment in favor of the Cleveland Clinic Foundation, LLC (“Clinic”).          The Clinic

appealed to the Ohio Supreme Court, which accepted the discretionary appeal.    The Court

vacated our decision in Alexander I and remanded the case to us for application of Dohme.

 Alexander v. Cleveland Clinic Found., 130 Ohio St.3d 401, 2011-Ohio-5936, 958 N.E.2d

945.

       {¶3} Here are the facts, as set forth in Alexander I:

       {¶4} In 2002, the Clinic hired Nathan Alexander (“Alexander”) as a security guard.

 In 2006, the Clinic promoted him to the position of police officer with the Clinic police

department (“CCPD”).      The Clinic maintains a non-unionized, private police department

chartered by the state of Ohio, charged with the responsibility of providing a safe and

secure environment for all Clinic patients, visitors, and employees.

       {¶5} On September 9, 2009, Alexander was in his police uniform working on the

main Clinic campus directing traffic.    Alexander approached pedestrians waiting to cross

East 86th Street and asked them to wait until he stopped traffic.          Daria Hubach
(“Hubach”), a Clinic employee, had just left an employee parking garage and was traveling

south in her car on East 86th Street.   After Alexander had stopped the pedestrians, he was

walking over to stop southbound traffic when Hubach’s car approached the intersection.

Alexander testified at deposition that he motioned Hubach to stop. Hubach testified at

deposition that she thought Alexander was merely motioning her to slow down. She

proceeded to drive into the intersection, at which time Alexander approached her moving

car, yelled “Stop!” and hit her driver’s side mirror.    Instead of stopping, Hubach kept

driving.

       {¶6} Hubach filed a complaint with the CCPD regarding Alexander’s actions in

striking her car mirror.   An officer took Hubach’s statement and photographed the car

mirror, which had been dislodged from its housing.

       {¶7} The next day, Alexander’s supervisor, Lieutenant William Neath, and

Commander Robert Sims (“Sims”) of the Clinic’s internal affairs department, met with

Alexander to discuss Hubach’s complaint.         Alexander provided a written statement.

Sims informed Alexander that he was being suspended for three days.

       {¶8} Sims began to investigate the complaint and interviewed several department

police officers and reviewed videotaped footage of the incident,      pertinent reports and

statements, and Alexander’s work history.         Sims discovered that in August 2008,

Alexander had been ordered to attend counseling after he yelled at a bus driver.

According to the report of that incident, Alexander was directing traffic when a Clinic bus,

making a turn, grazed Alexander’s right leg, knocking him forward.      Alexander yelled at
the bus driver to “learn how to f****** drive.”        The bus driver complained about

Alexander, who was not injured in the incident. At that time, the Clinic cited Alexander

for two violations of Clinic policy.

       {¶9} As a result of the investigation into the incident with Hubach, Sims concluded

that Alexander had committed the following Clinic policy infractions:

“Policy 21-II-W Improper or negligent acts that cause damage to equipment, or property of
       Cleveland Clinic, employees, patients or visitors;

“Policy 121-II-X Failure to conform to professional ethics;

“Policy 121-II-EE Serious failure of good behavior;

“Standard of Conduct #3 - Cooperative Behavior and Interpersonal Relations;

“Standard of Conduct #6 - Know and Obey Laws and Organizational Directives;

“Standard of Conduct #8 - Code of Ethics and Behavior.”

       {¶10} Sims recommended that Alexander receive a mandatory referral to the

Clinic’s Employee Assistance Program (“EAP”), with an evaluation for anger

management.      He then referred the matter to the chief of police, John Kalavsky

(“Kalavsky”), and the Clinic’s human resources department.

       {¶11} Sims and Kalavsky subsequently met with the Clinic’s vice-president of

human resources, Julie Judge (“Judge”). Judge suggested Sims and Kalavsky meet with

Alexander to “ascertain if he had given some thought to his conduct and behavior, and if

he had any thoughts about whether he would have done things differently” in trying to stop

Hubach’s car from entering the intersection.     Kalavsky testified at deposition that he

planned to “afford [Alexander] an opportunity that if he had made clear that there were
other options, and that his behavior was inappropriate, that he may have been given

consideration for suspension.”    The three also discussed a referral to the EAP for anger

management counseling as alternatives to terminating Alexander’s employment.

       {¶12} On September 23, Alexander met with Kalavsky.              During the meeting,

Alexander maintained his actions on September 9 were justified.         Alexander explained

that he had merely been trying to get Hubach to obey his commands and was concerned

about pedestrian safety in making the split-second decision to try and stop her car.

       {¶13} Kalavsky inquired whether Alexander would conduct himself in the same

manner if a similar situation should happen again.      Alexander replied that he would act

differently in the future because his actions had gotten him suspended, but continued to

maintain he had done nothing wrong.          Kalavsky testified at deposition that he told

Alexander that the CCPD must perform their duties in a manner different from traditional

police due to the Clinic being a “hospital policing environment.” He also informed

Alexander that the situation warranted termination but asked him to go home and think

further about his actions with the hopes that Alexander would be willing to take some

responsibility for his conduct.

       {¶14} Kalavsky asked Alexander whether he was tape-recording the conversation,

to which Alexander replied “no.”       The chief told Alexander that he did not have the

authority or the chief’s authorization to tape the conversation.1



          After Alexander filed suit against the Clinic, the Clinic learned that Alexander had
       1


tape-recorded meetings with his superiors.
        {¶15} Two days later, on September 25, Alexander again met with the chief and

Sims.     Alexander repeated that he had done nothing wrong in the Hubach incident.

Alexander was then terminated from the CCPD.        Kalavsky concluded that Alexander’s

position as a police officer should be terminated in light of multiple violations of Clinic

policy and departmental standards of conduct. Kalavsky informed Alexander he could

appeal his termination within the Clinic’s established grievance system.

        {¶16} Alexander did not appeal his termination with the Clinic, but subsequently

filed suit against the Clinic for wrongful termination. The Clinic moved for summary

judgment, which the trial court granted, finding that no genuine issue of material fact

remained for trial.

        {¶17} Alexander appealed, raising the following assignments of error for our

review:

        I. The trial court committed prejudicial and reversible error by admitting
        unreliable and unqualified defense expert witness testimony into the record
        for consideration as evidence in support of the defendant-appellee’s motion
        for summary judgment.

        II. The trial court committed prejudicial and reversible error when it
        granted the defendant’s motion for summary judgment given there is a
        genuine factual dispute in the record and the defendant-appellee is not
        entitled to judgment as a matter of law.

        {¶18} We discuss only the second assignment of error, as it is dispositive of this

appeal.

                                   Summary Judgment

        {¶19} An appellate court reviews a trial court’s decision on a motion for summary
judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336,

671 N.E.2d 241. Summary judgment is appropriate when, construing the evidence most

strongly in favor of the nonmoving party, (1) there is no genuine issue of material fact; (2)

the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can

come to but one conclusion, that conclusion being adverse to the nonmoving party.

Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 1998-Ohio-389, 696

N.E.2d 201, citing Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286,

653 N.E.2d 1196, paragraph three of the syllabus.     The evidence must be viewed in the

light most favorable to the nonmoving party. Harless v. Willis Day Warehousing Co., 54

Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

                               At-Will Employment in Ohio

       {¶20} In Ohio, absent an employment contract, an employee is at will and may be

terminated at anytime for any lawful reason or for no reason at all. Mers v. Dispatch

Printing Co., 19 Ohio St.3d 100, 102, 483 N.E.2d 150 (1985), at fn. 1, citing Henkel v.

Edn. Research Council, 45 Ohio St.2d 249, 255, 344 N.E.2d 118 (1976).          However, an

at-will employee may not be discharged or disciplined for reasons violative of a statute or

public policy. Greeley v. Miami Valley Maintenance Contrs., 49 Ohio St.3d 228, 551

N.E.2d 981 (1990), paragraph two of the syllabus.

       {¶21} In Greeley, the Ohio Supreme Court recognized a public policy exception to

the employment-at-will doctrine where an employee is discharged for a reason prohibited

by statute. Id., at paragraph one of the syllabus.   In Tulloh v. Goodyear Atomic Corp.,
62 Ohio St.3d 541, 546, 584 N.E.2d 729 (1992), the Court expressly stated that absent

statutory authority, there is no common law basis in tort for a wrongful discharge claim.

But in Painter v. Graley, 70 Ohio St.3d 377, 639 N.E.2d 51 (1994), the Court overruled

Tulloh and held

       ‘[c]lear public policy’ sufficient to justify an exception to the
       employment-at-will doctrine is not limited to public policy expressed by the
       General Assembly in the form of statutory enactments, but may also be
       discerned as a matter of law based on other sources, such as the
       Constitutions of Ohio and the United States, administrative rules and
       regulations, and the common law.

Id. at paragraph three of the syllabus.

       {¶22} In his lawsuit, Alexander alleged that the Clinic wrongfully discharged him

in violation of public policy. To establish his claim, Alexander must show: 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); 2) That his dismissal

jeopardized the public policy (the jeopardy element); 3) His dismissal was motivated by

conduct related to the public policy (the causation element); and 4) The Clinic lacked

overriding legitimate business justification for the dismissal (the overriding justification

element). Collins v. Rizkana, 73 Ohio St.3d 65, 1995-Ohio-135, 652 N.E.2d 653, citing

H. Perritt, The Future of Wrongful Dismissal Claims: Where Does Employer Self Interest

Lie?, 58 U.Cin.L.Rev. 397, 398-399 (1989).

       {¶23} The clarity and the jeopardy elements are questions of law and policy to be

determined by the court.      Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 151,

1997-Ohio-219, 677 N.E.2d 308, citing Collins at 70.                   The causation and
overriding-justification elements are questions of fact to be determined by the trier of fact.

 Id.



                                     Dohme v. Eurand

       {¶24} In Dohme, 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825, the Ohio

Supreme Court held:

       To satisfy the clarity element of a claim of wrongful discharge in violation of

       public policy, a terminated employee must articulate a clear public policy by

       citation of specific provisions in the federal or state constitution, federal or

       state statutes, administrative rules and regulations, or common law.      Id. at

       the syllabus.

       {¶25} In Dohme, the plaintiff was fired from his employment with Eurand. He

argued that he was terminated because he communicated his workplace safety concerns to

an insurance adjuster who was conducting an on-site evaluation of Eurand’s facility and

such termination was in violation of public policy. The Court noted that once Eurand

asserted that Dohme failed to identify a public policy applicable to the incident, the burden

shifted to Dohme to articulate, by citation, a specific clear public policy that had been

violated. To satisfy his burden as the plaintiff, Dohme relied on two Ohio Supreme Court

cases that dealt with Ohio’s public policy favoring workplace safety. The Court found

that his citation to the cases was insufficient to meet the burden of articulating a clear

public policy of workplace safety, and that such citation only generally identified a legal
basis for a statewide policy for workplace health and safety.             Dohme, the Court

concluded, failed to “cite any specific statement of law in support of his claim of public

policy that was drawn from the federal or state constitution, federal or state statutes,

administrative rules and regulations, or common law.”      Id. at ¶ 21.

       {¶26} The Dohme Court held that it is the plaintiff that must assert a public policy

and identify federal or state constitutional provisions, statutes, regulations or common law

that support the policy; the court may not presume to sua sponte identify the source of that

policy. Id. at ¶ 23.

       As the plaintiff, Dohme has the obligation to specify the sources of law that
       support the public policy he relies upon in his claim. Because Dohme did
       not back up his assertion of a public policy of workplace safety in his
       summary-judgment documents with specific sources of law, he has not
       articulated the clarity element of specificity.

Id. at ¶ 22.   Consequently, it is the terminated employee that must cite the specific

provision that was violated, a reviewing court may not sua sponte identify the source of

that policy. Id.

       {¶27} Although Dohme did not change the law in Ohio, it reinforced the Court’s

view that it is incumbent upon the plaintiff to clearly identify the federal or state

constitution, federal or state statutes, administrative rules and regulations, or case language

upon which he or she is relying.         Therefore, in this case, it was incumbent upon

Alexander to articulate the specific state statute, rule, or law that he was relying on in

claiming that his discharge violated public policy; this court cannot provide it for him.

       {¶28} With this in mind, we now turn to Alexander’s second assignment of error, in
which he argues that the trial court erred in granting summary judgment to the Clinic.

                                           Clarity

       {¶29} As mentioned above, it is the clarity element that is most at issue in this case.

  Alexander claimed that public policy dictates that police officers enforce the laws of the

state of Ohio; thus, discharging a police officer for enforcing the laws “would jeopardize

the public policy of wanting police officers to enforce Ohio laws.”

       {¶30} In his supplemental brief to this court following remand, Alexander cites to

R.C. 1702.80(D), R.C. 2935.03, and common law, “where cases have made it clear, that as

a matter of public policy police officers may not be fired for enforcing the law.”        The

cases Alexander cites to in support of his common law argument are Barnes v. Cadiz, 7th

Dist. No. 01531CA, 2002-Ohio-1534, ¶15 and State v. Boymin, 106 Ohio App. 393, 154

N.E.2d 823 (9th Dist.1958).

       {¶31} What this court must consider, pursuant to Dohme, is whether the Clinic

asserted, in its motion for summary judgment, that Alexander had not met the clarity

element and, if so, if Alexander met his reciprocal burden by supporting his claims with

specific citations in his materials opposing summary judgment.

       {¶32} In its motion for summary judgment, the Clinic alleged that Alexander could

not identify any public policy that was violated by his firing. In his motion opposing

summary judgment, Alexander responded that courts in Ohio have “held on numerous

occasions * * * that an employer who dismisses an employee because he or she refused to

violate the law, acquiesce in illegal activity, or violate an oath of office as a condition of
employment violates the public policy of Ohio.” p. 3 of Brief in Opposition to Clinic’s

Motion for Summary Judgment.

       {¶33} Again, the specific public policy that was violated, Alexander argued, was

the public policy that police officers must uphold or enforce the laws of the state of Ohio.

Based on Dohme, we must consider whether Alexander clearly supported his public policy

argument with a “specific statement of law * * * that was drawn from the federal or state

constitution, federal or state statutes, administrative rules and regulations, or common

law.” Dohme at 173.2

       {¶34} In his motion in opposition to the Clinic’s motion for summary judgment,

Alexander cited R.C. 1702.80(D) in support of his public policy argument. The statute

governs qualified nonprofit corporation police departments such as the CCPD and

provides that if a qualified nonprofit corporation establishes a police department, the

department “shall preserve the peace, protect persons and property, enforce the laws of the

state” and “each police officer * * * is vested with the same powers and authority as are

vested in a police officer of a municipal corporation.”        R.C. 1702.80(D).

       {¶35} The Clinic argues that R.C. 1702.80(D) is not sufficient to support

Alexander’s public policy argument because there is no statutory embodiment of an

employer’s responsibilities or an employee’s rights. To support this proposition, the

Clinic notes authority cited to in Dohme: Pytlinski v. Brocar Prods., Inc., 94 Ohio St.3d



         We note that in Alexander I, both the majority and the dissent agreed that Ohio public policy
       2


dictates that a police officer uphold the law.
77, 760 N.E.2d 385 (2002); Kulch, 78 Ohio St.3d 134, 152, 677 N.E.2d 308; and Sutton v.

Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938, ¶ 11.            In

these cases the plaintiffs had cited specific employment-related statutes (OSHA statues in

Pytlinski and Kulch and worker’s compensation statutes in Sutton) in support of their

public policy arguments.

       {¶36} We find, however, no requirement that a supporting statute be

employment-related or otherwise set forth an employer’s responsibilities and/or an

employee’s rights. For illustration purposes, in Collins, 73 Ohio St.3d 65, 72, 652 N.E.2d

653, the Ohio Supreme Court found that Ohio’s criminal sex offense statutes embodied

sufficiently clear expressions of public policy to justify a public policy exception in cases

of sexual harassment and discrimination.

       {¶37} Unlike Dohme, in which the Court found that the plaintiff failed to “cite any

specific statement of law in support of his claim of public policy that was drawn from the

federal or state constitution, federal or state statutes, administrative rules and regulations,

or common law,” here, Alexander cited to “a specific statement of law” that was drawn

from R.C. 1702.80(D).

       {¶38} Therefore, we find that the clarity element has been met so as to withstand a

motion for summary judgment.

                                           Jeopardy

       {¶39} We next consider the jeopardy element, that is whether dismissing employees

under circumstances like those involved in the Alexander’s dismissal would jeopardize the
public policy of wanting nonprofit corporation’s police officers to enforce the law.        In

other words, having found clear public policy sufficient to justify an exception to the

employment-at-will doctrine, we must now determine whether dismissals for enforcing the

law would jeopardize the public policy.

       {¶40} The Clinic has argued throughout that its police force is a non-traditional

policing environment in a hospital setting.       Thus, its police officers must somehow

behave differently and “balance between being a municipal law enforcement agency * * *

with being customer service professionals”        because they are dealing with a “highly

stressed populace.” Kalavsky deposition, p. 35.

       {¶41} But R.C. 1702.80(D) does not provide for this distinction between nonprofit

corporation police officers and public police officers.        Nor can the Clinic cite any

authority which does. R.C. 1702.80(D) clearly states that a nonprofit corporation’s police

officer “is vested, while directly in the discharge of that police officer’s duties as a police

officer, with the same powers and authority as are vested in a police officer of a municipal

corporation” and is charged with “preserving the peace, protecting persons and property,

enforcing the laws of the state, and enforcing the charter provisions, ordinances, and

regulations of the political subdivisions of the state.” Id.

       {¶42} Clearly, public policy in this state would be seriously compromised

(jeopardized) if employers were allowed to fire its police officers for upholding or

enforcing the law, no matter if the police force is in a municipal/county/state or

non-traditional setting.   Obviously, such retaliatory practices could deter or confuse even
“non-traditional” police officers from performing their statutory functions.

       {¶43} Here, Alexander is steadfast in his assertion that he attempted to stop

Hubach, who had ignored his command. He claims to have done so based upon a good

faith belief that he was enforcing the law and attempting to protect himself and pedestrians

in the immediate area.     According to Alexander, he was discharged solely for his actions

in trying to get Hubach to stop and for refusing to admit he had acted “outside the law.”

Under these circumstances, we find that the jeopardy element of the tort of wrongful

discharge has clearly been satisfied.3 See generally Kulch, 78 Ohio St.3d 134, 154, 677

N.E.2d 308.     Again, as discussed below, whether Alexander was enforcing the law when

he approached Hubach is a question of fact for the jury, not a question of law for this court

to decide at the summary judgment stage.

                             Causation and Overriding Justification

       {¶44} Although the Clinic argues that Alexander was not enforcing any law when

he hit Hubach’s mirror and even though striking a car’s mirror may not be an effective, or

even safe, means by which to enforce traffic laws, whether he was acting “outside” the

law, breaking the law, or as the Clinic argues “crossing the line” when he made a

split-second decision to try and get Hubach to stop is a question of fact for the jury to

decide (the causation element).        Whether the Clinic fired him for such actions, or for

other reasons, is also a question of fact for the jury (overriding justification element).


        Moreover, because there is no statutory remedy available in R.C. 1702.80(D), we need not
       3


consider whether a statutory remedy is adequate to protect plaintiffs like Alexander. See Collins, 73
Ohio St.3d 65, 73, 652 N.E.2d 653.
       {¶45} At deposition, Kalavsky testified as follows:

       Counsel for Alexander: My client was in the performance of his lawful
       duties as a police officer during this incident with Hubach on September 9,
       2002, can we agree on that?”

       Kalavsky: Yes.

       {¶46} Both Kalavsky and Judge agreed at deposition that a police officer is required

to make split-second judgments about how to enforce the laws.            Alexander, in his

statement, wrote that Hubach was traveling between 30-35 m.p.h. approaching the

intersection and, after he made eye contact with her and directed her to stop, it became

apparent to him that she was not going to comply with his signal to stop. He further

stated: “I made contact with the vehicle for the exclusive purpose of gaining the operator’s

full attention and understanding my order to stop. However, nothing worked and the

vehicle proceeded through the crosswalk.”

       {¶47}   Kalavsky clearly stated that Alexander was terminated solely based on the

Hubach incident; he was not terminated due to his previous performance evaluations or for

prior discipline stemming from swearing at a bus driver.              Moreover, although

Alexander’s annual performance evaluations showed areas that could be improved, they

were generally positive evaluations in which his overall performance was rated “fully met

expectations” in April 2007 and March 2008 and “mostly met expectations” in March

2009. We also note that a month prior to his termination, the CCPD gave Alexander a

certificate of recognition naming him a training officer.

       {¶48} The Clinic also argues that the CCPD gave Alexander multiple chances to
admit his wrongdoing with regard to Hubach and that if he had acknowledged his error he

may not have been terminated.      Alexander, however, remains steadfast in his position that

he acted appropriately.    Again, whether Alexander reacted wrongly towards Hubach

when she, he claims, ignored a clear police command is a matter of fact that is better suited

for a jury to decide.

       {¶49} In addition, although the Clinic’s expert opined that Alexander was not

upholding any Ohio law during the incident, a reasonable jury could disagree. Again it is

a question of fact whether Alexander’s dismissal was motivated by conduct related to

public policy and whether the Clinic lacked an overriding legitimate business justification

for his termination.    Even though Alexander has the reciprocal burden to demonstrate

causation and the lack of an overriding justification once the Clinic shows otherwise, we

find that Alexander has been able to meet his burden to overcome summary judgment in

this case.

       {¶50} Therefore, we find that Alexander submitted evidence sufficient to meet the

clarity and jeopardy elements of the public policy exception to the employment at-will

doctrine and has further demonstrated triable questions of fact on the causation and

overriding justification elements.      The trial court erred when it granted summary

judgment in favor of the Clinic.

       {¶51} The second assignment of error is sustained. Based on the disposition of

the second assignment of error, the first assignment of error is moot.          See App.R.

12(A)(1)(C).
       {¶52} Accordingly, judgment is reversed and the case remanded for proceedings

consistent with this opinion.

       It is ordered that appellant recover of appellee his costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

PATRICIA A. BLACKMON, A.J., CONCURS;
MARY J. BOYLE, J., DISSENTS WITH
SEPARATE OPINION


MARY J. BOYLE, J., DISSENTING:

       {¶53} I respectfully dissent from the majority’s opinion.    I disagree that Alexander

has met the standard set forth in Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168,

2011-Ohio-4609, 956 N.E.2d 825, to support the clarity element. I do not agree that R.C.

1702.80(D) provides a clear public policy in contravention of the Clinic’s decision to

terminate Alexander’s at-will employment for striking a moving vehicle while working a

traffic detail.   Nor can I accept Alexander’s general characterization that he was

discharged for enforcing the laws in his capacity as a police officer.
       {¶54} The record is clear that the Clinic did not discharge Alexander for enforcing

the law.   To the contrary, the investigation leading to Alexander’s termination arose

because of Alexander’s misconduct, wherein he improperly struck Hubach’s car mirror.

As recognized by the majority, his conduct violated six distinct Clinic policies. In my

opinion, six policy infractions clearly support the Clinic’s position that Alexander “crossed

the line” during the performance of his duties and that such action does not fall within the

realm of “enforcing the law.”    Therefore, because I find that R.C. 1702.80(D) does not

evidence a public policy that prevents an employer from discharging an employee for

ignoring employer policies in the performance of his or her duties, I would affirm the trial

court’s grant of summary judgment in favor of the Clinic.
