COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71794 FRED BILLEY : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION CITY OF LAKEWOOD : : DEFENDANT-APPELLEE : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Lower Case No. CV-301102. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Alan Belkin, Esq. Alan Belkin Co., LPA 75 Public Square, Suite 920 Cleveland, Ohio 44113 For Defendant-appellee: John T. McLandrich, Esq. Mazanec, Raskin & Ryder Co., L.P.A. 100 Franklin's Row 34305 Solon Road Cleveland, Ohio 44139 -2- SWEENEY, JAMES D., C.J.: Plaintiff-appellant Fred Billey appeals from the trial court's order granting the defendant-appellee City of Lakewood's motion for summary judgment. The appellant, a union employee of the appellee, filed this action pursuant to the whistleblowers statute, R.C. 4113.52. In his complaint, filed January 4, 1996, the appellant alleged that over the past few years he made complaints to his supervisors regarding problems and safety violations in the workplace. The complaints were made both orally and in writing. The appellant alleged that these violations were likely to cause an imminent risk of physical harm to persons at the workplace and that the appellee failed to remedy these violations. The appellant believed that no appropriate action was taken regarding the conditions and he filed complaints with the State of Ohio Board of Personnel Review. The appellant asserts in his complaint that as a result of his actions, the appellee retaliated against him by threatening termination, suspending him without pay, refusing to honor legitimate medical restrictions placed upon him, forcing him to undergo multiple medical examinations, denying him overtime, denying his rights under the collective bargaining agreement, and subjecting him to harassment at work. On September 20, 1996, the appellee filed its motion for summary judgment. The appellant responded on November 1, 1996. On November 5, 1996, the appellant filed an affidavit, apparently in support of his brief in opposition to the summary judgment. The -3- appellee's request to file a reply was never ruled upon and must be presumed denied. The court granted the appellee's motion on November 20, 1996. In his affidavit, the appellant stated that he is employed as a mechanic by the City of Lakewood and that he has orally raised complaints to his supervisors regarding safety conditions, which, if left uncorrected, would put him and other employees in danger of serious injury. The appellant affirmed that the City failed to resolve the safety problems and the problems have been permitted to continue; that the complaints were reduced to writing either in the form of a memo or grievance and delivered to his supervisor; and that he filed a complaint with the State of Ohio Board of Personnel Review (SBPR). Since these complaints were made, the appellant has been subjected to adverse employment actions by appellee. The appellant stated that these adverse consequences were attributable to his complaint regarding safety; that negative comments were made by supervisors regarding his safety complaints; and that the retaliatory actions of the appellee caused him substantial stress and mental anguish and physical pain. To the affidavit, the appellee attached the memoranda and grievances which were given to his supervisors, and the complaint filed with SBPR. The list of adverse consequences in the affidavit matched those stated in the complaint. The following is a synopsis of the memoranda and grievances attached to the affidavit. These complaints were made in writing by the appellant and delivered to the appellee. In January 1995, -4- in a memo, the appellant complained that while he was not permitted to wear tennis shoes to work, other employees were so permitted. These other employees were entering his work space in tennis shoes. His manager stated that he had no jurisdiction over these other employees, but that he would speak with them. In a memo dated January 19, 1995, the appellee complained that Dave, a fellow employee stationed in the next work area, was using a torch near an old battery, a bucket of antifreeze and an open bucket of waste oil. He supervisor responded that he would speak with the fellow employee. On January 27, 1995, the appellant filed a grievance alleging that the management failed to resolve safety problems and failed to treat all employees equally. In a memo dated March 22, 1995, the appellant complained that although new work rules were implemented, there was no check to see whether or not they were enforced. The appellant stated that there was a repeat of the January 19, 1995 complaint, and that his co-worker was using a torch in an unsafe manner. The appellant requested that the safe use of a torch should be placed in the guidelines. On March 22, 1995, the appellant authored a memo which requested information on: 1) rules and regulations regarding out-of-service vehicles or vehicles which are to be towed; 2) a safety audit he previously requested on a tire vendor; and, 3) MSDA requirements for the use of a respirator when using brake clean. The appellant also requested that a limit be set on the use of brake clean in the work area. Another grievance was filed on April 7, 1995, which alleged both that he -5- had been subject to harassment regarding safety issues and that management had failed to act on his earlier complaints. Attached to the appellant's affidavit was his complaint filed before the SBPR on January 26, 1995. This six-page hand-written complaint states that the appellant was subject to harassment for advocating the use of an exhaust recovery system and for complaining about the unsafe use of a torch by his co-worker. The appellant stated that he was informed that if he was not happy with his working conditions that he should transfer out or move on. The appellant stated that the harassment was a result of his exercise of his right to demand a safe and healthy workplace, and that a hostile work environment had been created. Further, the appellant noted that he filed a grievance with his union, but that the union had not responded appropriately. The appellant has attached to the affidavit a copy of the City of Lakewood's Department of Public Works policy number PW-621-1 regarding mechanic's safety practices, which states when the ventilation system shall be used, that face and eye protection should be worn when there is a reasonable probability of injury which can be prevented, and that an employee who fails to use and maintain the supplied safety equipment will be subject to appropriate disciplinary action. Finally, attached to the affidavit is a letter directed to Law Judge Christopher Young. In this letter the appellant details his history as a safety advocate, states that many times his employer has taken steps to ensure safety, but has failed to enforce its -6- policies. Since July 1994, when OSHA became applicable to public employees, the appellee has filed safety complaints with his employer. Subsequent to these complaints he has been both harassed on the job and pressured to change jobs. He states that employees are discriminated against in the enforcement of work rules, that months and years pass before safety issues are resolved; that agents for the City of Lakewood had knowledge of the complaints, the harassment, and the hostile work environment and did not use the means currently in place to resolve the complaints. As evidence attached to the motion for summary judgment, the appellee included a copy of the unverified responses by the appellant to the appellee's interrogatories, a copy of the union agreement, the appellee's answers to a SPBR questionnaire, and a copy of the appellant's personnel file. This personnel file included: 1) a letter dated August 16, 1995, requiring the appellant to undergo a physical capacity examination; 2) a letter dated August 23, 1995, informing the appellant of his immediate termination from employment for serious misconduct as a result of his failure to appear at the physical capacity exam; 3) a statement of the charges which include failure to comply with a lawful and reasonable order, failure to undergo a physical capacity examination, failure to contact the personnel administrator as required by letter, and deliberate gross insubordination; 4) a portion of the union discipline and grievance procedure; 5) a letter dated September 16, 1995, detailing the agreement reached between the union and the appellee which required the appellant to -7- undergo the examination; 6) a letter dated September 25, 1995, from Dr. Patrick Bray, the appellant's physician, stating that the appellant was now suited to perform medium-heavy to heavy work, but limiting the appellant's lifting capacity to 81 pounds; 7) a letter dated October 2, 1995, from the appellee to the appellant stating that it received the results of the physical capacity exam, that he was now able to perform all essential tasks and functions without limitation, and giving the appellant a date to return to work; 8) a letter dated October 12, 1995, from the appellee to the union stating the results of a Step I Grievance hearing which denied the adjustments requested by the appellant's grievance #26; and, 9) grievance #26 which alleged that the appellee violated the union contract by disregarding his physicians limitation of 81 pounds. The appellant sets forth one assignment of error: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT. PLAINTIFF HAS PRESENTED EVIDENCE TO SUPPORT EVERY ESSENTIAL ELEMENT OF PLAINTIFF'S WHISTLEBLOWER CLAIM. The appellant argues that because he has met all of the statutory requirements set forth in R.C. 4113.51 through R.C. 4113.53, the whistleblowers statute, the trial court erred in granting the appellee's motion for summary judgment. Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come but to one conclusion; and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that -8- conclusion is adverse to that party. Turner v. Turner (1993) 67 Ohio St.3d 337, citing to Temple v. Wean United, Inc. (1977) 50 Ohio St.2d 317, and Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. A court is permitted to grant a motion for summary judgment where all of the tests provided in Civ.R. 56 are met. See Celotex Corp. v. Catrett (1986), 477 U.S. 317, 323. The court found where the non-moving party bears the burden of proof at trial on dispositive issues, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file. The non-moving party is required to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories, and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Id. At 324. Finally, an appellate court reviews the lower court's determination on a motion for summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579. The state legislature has determined that an employee may bring a civil action against an employer who takes disciplinary action or otherwise retaliates against the employee for reporting certain violations to higher authorities. See R.C. 4112.52(D). A collective bargaining agreement to which the employee is a party is not a bar to suit. See R.C. 4113.53. However, the legislature has placed other restrictions on the rights of an employee to proceed against an employer for a -9- violation of the whistleblower's statute. The relevant sections of R.C. 4113.52(A)(1)(a) and (A)(3) state as follows: (A)(1)(a) If an employee becomes aware in the course of his employment of a violation of any state or federal statute or any ordinance or regulation of a political subdivision that his employer has authority to 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 to persons or a hazard to public health or safety or is a felony, the employee orally shall notify his supervisor or other responsible officer of his employer of the violation and subsequently shall file with that supervisor or officer a written report that provides sufficient detail to identify and describe the violation. * * * * * * (3) If an employee becomes aware in the course of his employment of a violation by a fellow employee of any state or federal statute, any ordinance or regulation of a political subdivision, or any work rule or company policy of his employer and the employee reasonably believes that the violation either 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 is a felony, the employee orally shall notify his supervisor or other responsible officer of his employer of the violation and subssequently shall file with that supervisor or officer a written report that provides sufficient detail to identify and describe the violation. -10- In Contreras v. Ferro Corp. (1995), 73 Ohio St.3d 244, the Ohio upreme Court, in the syllabus, determined; In 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. Applying this principle and the statute to the facts in the ase su b judice, it is clear that the nature of the appellant's omplaints fall within the authority of the appellee to correct. t is also relevant that the appellant, in his affidavit, states hat some of his complaints were made only orally, but that some ere made both orally and then in writing. In order to comply with he notification portions of R.C. 4113.52(A)(1)(3), an employee must irstorally lodge a complaint, and when no action is taken by the mployer, the complaint must be made in writing. Therefore, this ourt may only consider the issues raised by the appellant for which e states that he provided an oral complaint, but then followed up n writing. Contreras, supra. A detailed list of the appellant's ritten complaints is set forth in the facts, supra. To this extent he appellant has complied with the whistleblower's statute. However, the appellant has failed to show that there has been violation by the appellee of any state or federal statute or any rdinan ce or regulation of a political subdivision under R.C. 113.52(A)(1), or a violation by the appellee of any state or ederal statute, any ordinance or regulation of a political ubdivision, or any work rule or company policy under R.C. 113.52 (A)(3), which the appellant reasonable believes: 1) is a -11- rimina l offense that is likely to cause an imminent risk of hysica l harm to persons; or, 2) is a hazard to public health or afety; or, 3) is a felony. The evidence presented by the appellant, when construed in the ight most favorable to the appellant, does not allege that any riminal offense or felony has occurred. The appellant has also ailed to designate specific facts showing that there was a hazard o the public health or safety. The appellant has failed to emonstrate that the public was somehow at risk because he was not ermitted to wear tennis shoes, was required to lift heavy objects, r was harassed by his co-workers and supervisors. Assuming, rguendo, that there may have been a hazard to the appellant and/or theremployees within the shop from the improper use of the torch r the improper use of chemicals such as brake clean, the appellant as failed to demonstrate that these workplace problems constituted health or safety hazard to the general public. In essence, once his collective bargaining remedies were xhausted and decided against him, the appellant has attempted hrough this action to utilize the whistleblower's statute to remedy problem internal to his workplace. While this court may applaud is sentiments in believing that workplace safety is important, it s not permissible to misuse a statute which the Supreme Court has nequivocally stated must be strictly construed. The appellant has failed to present evidence showing that there s a genuine issue of material fact which requires resolution by a -12- rier of fact. The trial court properly granted the appellee's otion for summary judgment. The appellant's assignment of error is overruled. Judgment affirmed. -13- It is ordered that appellee recover of appellant its costs erein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court irecting the Common Pleas Court to carry this judgment into xecution. A certified copy of this entry shall constitute the mandate ursuant to Rule 27 of the Rules of Appellate Procedure. xceptions. OHN T. PATTON, J., and OBERT E. HOLMES, J., (*) CONCUR. JAMES D. SWEENEY CHIEF JUSTICE *) Robert E. Holmes, Retired ustice from the Supreme Court of hio, sitting by assignment. .B. This entry is an announcement of the court's decision. See pp.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will e journalized and will become the judgment and order of the court ursuant to App.R. 22(E) unless a motion for reconsideration with upporting brief, per App.R. 26(A), is filed within ten (10) days f the announcement of the court's decision. The time period for eview by the Supreme Court of Ohio shall begin to run upon the .