Monday, April 23, 2012

As the public policy turns

Last summer, in Alexander v. Cleveland Clinic Foundation, the Cuyahoga County Court of Appeals held that a police officer, fired after several outbursts while working traffic control, could proceed to trial with his wrongful discharge claim. He claimed that because his termination jeopardized the state’s public policy in favor of police officers enforcing the law, he should have been able to pursue his public policy wrongful discharge claim.

Three months later, the Ohio Supreme Court decided Dohme v. Eurand America, holding that to support a wrongful discharge claim, a plaintiff must identify the specific federal or state constitutional provisions, statutes, regulations, or common law that support the public policy relied upon.

Following Dohme, the Ohio Supreme Court vacated the appellate court’s decision and set it back to the appellate court for a re-do.

Second verse, same as the first. In Alexander v. Cleveland Clinic Foundation II (4/19/12) [pdf], the same panel of the same appellate court again concluded that Alexander was entitled to proceed to trial on his public policy claim.

Pursuant to Dohme, the court considered whether Alexander had clearly supported his public policy argument with a specific statement of law from the federal or state constitution, statutes, administrative rules and regulations, or common law:

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.” … Alexander cited R.C. 1702.80(D) in support of his public policy argument. The statute … provides that … a qualified nonprofit corporation … police department … “shall preserve the peace, protect persons and property, enforce the laws of the state.” … [H]ere, Alexander cited to “a specific statement of law” that was drawn from R.C. 1702.80(D).

The takeaway for employers—Ohio or otherwise—hasn’t changed since I first reported on Alexander last year:

Public policy wrongful discharge claims often hinge on the combination of two influences: the creativity of the employee’s attorney to pigeonhole the circumstances surrounding the discharge into a specific state or federal constitution, statute or administrative regulation, or in the common law; and the court’s opinion of that particular public policy.

The unpredictability of these claims underscores the need for employers to treat every termination like a potentially litigious event.