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An Employee’s Failure To Strictly Comply With The Employer Notification Procedures Defeats A Claim Under The Ohio Whistleblower Act

Nobody likes a “Nosey Nellie.” The case of Bennett v. Columbiana Cty. Coroner, 2016-Ohio-7182, presents the issue of whether a nosey employee, who is constantly complaining about the workplace, is simply a whiner or is actually a whistleblower entitled to protection under Ohio law.

In Bennett, an Ohio appellate court found that an employee must strictly adhere to the notification procedures outlined under the Ohio Whistleblower Act if the employee intends to avail herself of the protections afforded under that statute. The plaintiff in Bennett worked “as an executive secretary and bookkeeper.” Bennett at ¶ 3. Her “job duties included receptionist, bookkeeping and general housekeeping.” Bennett at ¶ 3.

 During her employment, the plaintiff raised a number of complaints concerning the coroner’s conduct. The first incident occurred after the plaintiff, who had no medical training, voiced her “belief [to the coroner] that the delay and failure to order a life flight contributed to [an individual’s] death and that this was not reported on the death certificate.” Bennett at ¶ 8. The second incident “involved a World War II era Luger handgun” that office workers apparently borrowed from an evidence locker and showed to the coroner on his birthday. Bennett at ¶ 12. The third incident involved a death certificate that the plaintiff believed, without any independent research or an outside qualified medical opinion, the coroner unethically altered by issuing a supplemental death certificate changing the cause of death. The plaintiff voiced her concerns regarding each of these issues with multiple outside agencies.

The plaintiff alleged that, after reporting her complaints to these outside agencies, she experienced retaliation in the workplace: she was locked out of her computer and her work hours reduced from 32 hours per week to ten. The plaintiff sued, alleging a retaliation claim under the Ohio Whistleblower Act.

The Ohio Whistleblower Act is a statute that provides protection to employees that report conduct 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.” R.C. 4113.52. The Bennett court clarified that the Ohio Whistleblower Act specifically “contemplate[s] that the employer shall be given the opportunity to correct the violation. The statute mandates the employer be informed of the violation both orally and in writing.” Bennett at ¶ 29. As a result, the Ohio Whistleblower Act “protects an employee for reporting certain information to outside authorities only if the following requirements have first been satisfied: (1) the employee provided the required oral notification to the employee’s supervisor or other responsible officer of the employer, (2) the employee filed a written report with the supervisor or other responsible officer, and (3) the employer failed to correct the violation or to make a reasonable and good faith effort to correct the violation * * * An employee who fails to follow the specific requirements of the statute is not a protected whistleblower.” Bennett at ¶ 29.

The Bennett court determined that the plaintiff was not a protected whistleblower because she did not strictly comply with the notification procedures or allow the employer an opportunity to attempt to correct the alleged violations. In fact, the only incident in which the plaintiff addressed with her supervisor prior to reporting the issues to outside agencies involved the life flight incident. Even then, the plaintiff only mentioned that she thought it was “odd” the decedent was not life flighted.

To read this case, please click here.

Authors: Matthew John Markling and Patrick Vrobel

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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