UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JOE B. ALLMAN, 

 Plaintiff, 

v. 

WALMART INC., 

 Defendant. 

Case No. 2:18-cv-369 

JUDGE GEORGE C. SMITH 

Magistrate Judge Deavers 

OPINION AND ORDER 

This matter is before the Court upon Defendant Walmart Inc.’s Partial Motion to Dismiss 

Plaintiff’s Amended Complaint (“Walmart’s Motion”) (Doc. 13). The motion is fully briefed and 

ripe for disposition.1

 For the following reasons, Walmart’s Motion is GRANTED. 

I. BACKGROUND 

Plaintiff Joe B. Allman was employed by Walmart in Ohio as a long-haul truck driver. 

(Doc. 11, Am. Compl. ¶ 4). As required by the Department of Transportation, Allman underwent 

periodic fitness-for-duty examinations conducted by third-party vendors, arranged by Walmart. 

(Id. ¶ 8). At such an examination in August 2013, a physician assistant advised Allman that he 

suffered from sleep apnea. (Id.). As a requirement to obtain a driver medical fitness qualification 

card (“DOT card”), Allman was subsequently fitted for a continuous positive airway pressure (“CPAP”) machine and was required to undergo a sleep study, which occurred overnight on October 

 

1

 Allman also moved for leave to file a surreply, which Walmart opposed. (See Docs. 21–22). Allman’s Motion is 

hereby GRANTED and the Court will consider the parties’ surreply arguments in deciding the Partial Motion to 

Dismiss. 
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8, 2013. (Id. ¶¶ 8–9). The sleep study, conducted by a Walmart vendor, determined from the data 

retrieved from the C-PAP machine that Allman stopped breathing 144 times in 6 hours, confirming 

the previous sleep apnea diagnosis. (Id. ¶ 10). Allman disputed the diagnosis but “was ignored.” 

(Id.). 

After receiving the sleep study results, Walmart required Allman to wear the C-PAP 

machine 5 nights a week for four hours a night as a condition of his continued employment. (Id.

¶ 11). Allman found using the C-PAP machine painful, and it caused him “to suffer nausea, 

headaches, bleeding mouth and throat, dehydration, and chronic cough and robbed him of sleep.” 

(Id. ¶ 12). Allman made several statements to Walmart or its medical vendors that “he was in pain 

and could not use the C-PAP machine”; “the said C-PAP machine was causing an injury to him”; 

the C-PAP machine “was making him ill”; that Walmart “had no medical data to back up their 

demand” that he wear the C-PAP machine; that he refused to continue wearing the C-PAP device 

“standing on his medical record and the fear of pain and suffering;” that “he was being 

discriminated against based upon what amounts to a company manufactured perceived disability”; 

and that he was being “retaliated against for protecting himself from unfair, unjustified fitness for 

duty examinations, i.e. sleep study examinations, meant to find false grounds to terminate his 

employment.” (Id. ¶¶ 12–13, 17, 23, 25–26). 

Walmart suspended Allman from driving on a number of occasions when he refused to 

wear the C-PAP machine as directed. (Id. ¶¶ 14, 18, 23). Several additional sleep studies were 

conducted, arranged respectively by Walmart and Allman, with competing results: Walmart’s 

studies continued to find a need for Allman to wear the C-PAP machine, while Allman’s found he 

did not have sleep apnea and did not require the use of a C-PAP machine. (Id. ¶¶ 16, 19, 24). 

Relying on the sleep studies it arranged, Walmart refused to return Allman to driving shifts. (Id.
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¶ 25). Unwilling to wear the C-PAP machine as instructed by Walmart, Allman resigned in April 

2014. (Id. ¶¶ 6, 25). Allman alleges his resignation was in fact a constructive discharge by 

Walmart. (Id. ¶ 6). 

Allman commenced this action against Walmart on April 21, 2018 with subject-matter 

jurisdiction based on diversity of citizenship. (Doc. 1, Compl.). In his Amended Complaint, 

Allman asserts claims for (1) discrimination based on perceived or claimed disability in violation 

of Ohio Revised Code §§ 4112.02(A) and 4112.99; (2) retaliation in violation of Ohio Revised 

Code § 4112.02(I); and (3) wrongful discharge in violation of Ohio’s public policy requiring 

employers to provide a safe workplace for their employees. (Id. ¶¶ 32–34). Walmart’s Partial 

Motion to Dismiss is directed only to Count 3 for wrongful discharge in violation of public policy. 

(Doc. 13, Mot. at 1). 

II. STANDARD OF REVIEW 

Walmart brings this motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil 

Procedure, alleging that Plaintiffs have failed to state a claim upon which relief can be granted. 

Under the Federal Rules, any pleading that states a claim for relief must contain a “short 

and plain statement of the claim” showing that the pleader is entitled to such relief. Fed. R. Civ. 

P. 8(a)(2). To meet this standard, a party must allege sufficient facts to state a claim that is 

“plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim will be 

considered “plausible on its face” when a plaintiff sets forth “factual content that allows the court 

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

Rule 12(b)(6) allows parties to challenge the sufficiency of a complaint under the foregoing 

standards. In considering whether a complaint fails to state a claim upon which relief can be 

granted, the Court must “construe the complaint in the light most favorable to the plaintiff, accept 
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its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Ohio Police & 

Fire Pension Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012) 

(quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the tenet that a 

court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause 

of action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663. Thus, 

while a court is to afford plaintiff every inference, the pleading must still contain facts sufficient 

to “provide a plausible basis for the claims in the complaint”; a recitation of facts intimating the 

“mere possibility of misconduct” will not suffice. Flex Homes, Inc. v. Ritz-Craft Corp of Mich., 

Inc., 491 F. App’x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679. 

III. DISCUSSION 

A. Elements of a claim for wrongful discharge in violation of public policy 

“Ohio has traditionally adhered to the employment-at-will doctrine, which permits an 

employer to terminate an at-will employment relationship ‘for any cause, at any time whatsoever, 

even if done in gross or reckless disregard of [an] employee’s rights.’” Plona v. United Parcel 

Serv., Inc., 558 F.3d 478, 481 (6th Cir. 2009) (quoting Painter v. Graley, 70 Ohio St.3d 377, 639 

N.E.2d 51, 55 (1994) (citations and internal quotation marks omitted)). However, an exception to 

Ohio’s employment-at-will doctrine is available to employees when they have been discharged in 

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

551 N.E.2d 981 (1990). To prevail on a Greeley claim, an employee must establish four elements: 

(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 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); and 
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(4) The employer lacked overriding legitimate business justification for the dismissal 

(the overriding justification element). 

Collins v. Rizkana, 73 Ohio St.3d 65, 652 N.E.2d 653, 657–58 (1995); Wiles v. Medina Auto Parts, 

96 Ohio St.3d 240, 773 N.E.2d 526, 529–30 (2002). Here, Walmart challenges only the jeopardy 

element, which is a question of law to be determined by the Court. Collins, 652 N.E.2d at 658. 

Walmart contends that Allman has not sufficiently pleaded the jeopardy element because 

he has not alleged that Allman ever “made it clear to his employer that he is invoking a 

governmental policy as the basis of his complaint, not just his own self-interest.” (Doc. 13, Mot. 

at 5, quoting Beckloff v. Amcro Rigid Plastics USA, LLC, 93 N.E.3d 329, 340-341 (Ohio Ct. App. 

6th Dist. 2017) and Jermer v. Siemens Energy & Automation, Inc., 395 F.3d 655, 659 (6th Cir. 

2005)). Allman argues that this government policy notice requirement, first articulated by the 

Sixth Circuit Court of Appeals in Jermer, has never been adopted by the Ohio Supreme Court and 

is inapplicable to his claim. (Doc. 19, Resp. at 2). 

B. Jermer’s government policy notice requirement 

In diversity cases involving state law claims, the court “must apply the law of the state’s 

highest court.” Allied Indus. Scrap, Inc. v. OmniSource Corp., 776 F.3d 452, 453 (6th Cir. 2015). 

“If the state supreme court has not yet addressed the issue presented, [a court] must predict how 

the court would rule by looking to all available data . . . . ‘Relevant data include decisions of the 

state appellate courts, and those decisions should not be disregarded unless [a court is] presented 

with persuasive data that the [state] Supreme Court would decide otherwise.” Allstate Ins. Co. v. 

Thrifty Rent-A-Car Systems, Inc., 249 F.3d 450, 454 (6th Cir. 2011) (quoting Kingsley Assoc. v. 

Moll PlastiCrafters, Inc., 65 F.3d 498, 507 (6th Cir. 1995)). 

The Sixth Circuit made this type of prediction in deciding Jermer, holding that to satisfy 

the jeopardy element of wrongful discharge in violation of public policy under Ohio law, “[i]t must 
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be sufficiently clear from the employee’s statements that he is invoking governmental policy [and] 

that a reasonable employer would understand that the employee relies on the policy as the basis 

for his complaint,” and is “not [relying on] just his own self-interest.” 395 F. 3d at 656, 659. In 

other words, the employer must be “effectively put on notice that the employee is acting not only 

for himself, but also for the public at large.” Id. at 659. The Sixth Circuit reasoned that a claim 

for wrongful discharge in violation of public policy was a special protection from the employmentat-will doctrine, and, in exchange for this protection, “employers must receive notice that they are 

no longer dealing solely with an at-will employee, but with someone who is vindicating a 

governmental policy.” Id. 

In Jermer, the plaintiff complained about the air quality of his work environment and was 

subsequently laid off as part of a reduction in force. Id. at 656–58. Jermer stated prior to his 

termination that “I still think there’s issues” in reference to the company’s HVAC system (which 

had previously been inspected and found to be working properly) and also requested an air filter 

for his own office to address his co-worker’s cough and his own sinus irritation. Id. at 659–60. 

The Sixth Circuit determined that Jermer’s claim for wrongful discharge in violation of public 

policy did not satisfy the jeopardy element because these statements did not “in any way indicate 

that he was invoking a governmental policy in favor of workplace safety.” Id. at 659. 

The Sixth Circuit recently applied Jermer’s holding in O’Connor v. Nationwide Children’s 

Hosp., 723 F. App’x 321 (6th Cir. 2018). The O’Connor court reached the same result, finding 

that the plaintiff’s complaints that a faulty “elevator caused her injury and was unsafe” was 

insufficient to give her employer “‘clear notice’ of her intent to vindicate a governmental policy 

favoring workplace safety vis-à-vis her workers’ compensation claim” as required to satisfy the 

jeopardy element. Id. at 323. Moreover, the O’Connor court noted that, although the Ohio 
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Supreme Court has not yet addressed the notice requirement articulated in Jermer, three Ohio 

appellate courts have cited it favorably. Id. (citing Beckloff v. Amcor Rigid Plastics USA, LLC, 

93 N.E.3d 329, 340 (Ohio Ct. App. 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 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”)). 

Allman argues that Jermer has been implicitly rejected by the Ohio Supreme Court in 

Sutton v. Tomco Machining, Inc., which held that an employee satisfied the jeopardy element by 

notifying his employer about an injury one hour before the employer fired him. 129 Ohio St.3d 

153, 950 N.E.2d 938, 946–47 (2011). However, the O’Connor court expressly considered and 

rejected this argument, limiting Sutton to similar contexts involving an available, but not filed, 

worker’s compensation claim. 723 F. App’x at 324. Sutton is thus inapplicable here. 

The Sixth Circuit is “bound by [a prior published case that interpreted Ohio law] unless 

Ohio law has measurably changed in the meantime.” Rutherford v. Columbia Gas, 575 F.3d 616, 

619 (6th Cir. 2009) (alteration in original) (quoting Big Lots Stores, Inc. v. Luv N’ Care, Ltd., 302 

F. App’x 423, 427 (6th Cir. 2008)). So too is this Court bound by a published decision of the Sixth 

Circuit interpreting Ohio law. As no Ohio court has suggested that Jermer misapplied Ohio law 

or reached a contrary holding, Jermer’s holding controls this case. 2,3 

 

2

 One Ohio appellate court “disagree[d] with Jermer’s implication that an employee must make some formal 

announcement that his statements are being made for the purpose of protecting the public policy favoring 

workplace-safety.” Dohme v. Eurand Am., Inc., 170 Ohio App. 3d 593, 601 (Ohio Ct. App. 2007). However, that 

decision was vacated by the Ohio Supreme Court on other grounds, and the Ohio Supreme Court expressly declined 

to consider the jeopardy element. Dohme v. Eurand Am. Inc., 130 Ohio St. 3d 168, 174 (2011). 3

 Allman also argues that Jermer is of limited relevance because it was decided on summary judgment and not in the 

posture of a motion to dismiss. However, “[t]hat Jermer considered an appeal from a summary judgment grant 
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C. Jermer applied to the present case 

Turning to the facts at issue, Allman alleges that his discharge violated Ohio’s public policy 

in favor of workplace safety. (Doc. 11, Am. Compl. ¶¶ 34, relying on Ohio Rev. Code §§ 4101.11 

and 4101.12 (requiring employers to furnish a safe place of employment)). The Ohio Supreme 

Court has held that a wrongful discharge claim may properly rest on this policy, and Walmart does 

not challenge the clarity element of Allman’s claim. Pytlinski v. Brocar Prod., Inc., 94 Ohio St. 

3d 77, 80, 760 N.E.2d 385, 388 (2002). However, Allman’s statements to Walmart and its vendors 

were insufficient to put Walmart on notice that he was relying on Ohio’s statutory policies in favor 

of workplace safety in refusing to use the C-PAP machine, and not simply acting in his own selfinterest. Allman’s complaints undoubtedly put Walmart on notice that Allman found the C-PAP 

machine painful and detrimental to his health, but none of his complaints as alleged raise the 

specter of workplace safety, let alone a governmental policy in favor of workplace safety that 

Allman believed had been violated. In accordance with Jermer’s binding precedent, this Court 

must conclude that Allman has failed to satisfy the jeopardy element, and thus has failed to state a 

claim for wrongful discharge in violation of public policy.4

 

IV. CONCLUSION 

For the foregoing reasons, Walmart’s Partial Motion to Dismiss is GRANTED. Count 3 

of Allman’s Amended Complaint is DISMISSED. Further, Allman’s Motion for leave to file a 

surreply is GRANTED. 

 

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.” O’Connor, 723 F. App’x at 323. 

4

 Allman further asserts that Walmart forfeited its arguments regarding the jeopardy element when it failed to raise 

them in a previous motion to dismiss the original Complaint. However, Allman cites no authority for this assertion. 

Fed. R. Civ. P. 12(h) provides that a party may waive certain defenses by failing to include them in a previous Rule 

12 motion, but a defense based on Rule 12(b)(6) is not among them. Moreover, failure to state a claim may be raised 

at any point in the case so long as it is “early enough not to delay trial.” Fed. R. Civ. P. 12(c). Accordingly, the 

Court finds that Walmart did not forfeit its arguments regarding the jeopardy element. 
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The Clerk shall remove Documents 13 and 21 from the Court’s pending motions list. 

IT IS SO ORDERED. 

 /s/ George C. Smith 

GEORGE C. SMITH, JUDGE 

UNITED STATES DISTRICT COURT