NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0070n.06
Case No. 17-3864
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

ERIN O’CONNOR, Plaintiff-Appellant,

v. NATIONWIDE CHILDREN’S HOSPITAL, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: MOORE, COOK, a nd McKEAGUE, Circuit Judges. COOK, Circuit Judge. Erin O’Connor suffere d an injury while working for Nationwide Children’s Hospital (NCH). When NCH discha rged her after she had exhausted her FMLA leave, O’Connor sued for, among other claims, wr ongful termination in violation of Ohio public policy. The district court dismissed the claim, and we AFFIRM.
I. O’Connor once worked as a pe rioperative technician at NC H in Columbus, Ohio. After an NCH elevator allegedly closed on her shou lder, O’Connor initiated a workers’ compensation claim and was placed on FMLA leave. NCH terminated her employment after O’Connor had exhausted her leave. O’Connor sued NCH on four grounds in state c ourt. After removal, the district court dismissed three counts following NCH’s motion to dismiss for failure to state a claim under RuleCase No. 17-3864 O’Connor v. Nationwide Children’s Hosp.

- 2 - 12(b)(6) of the Federal Rules of Civil Procedure and granted su mmary judgment to NCH on the fourth. She appeals the dismissal of only one claim—wrongful discharge in violation of Ohio public policy, also known as a “ Greeley claim.” See Greeley v. Miami Valley Maint. Contractors, Inc. , 551 N.E.2d 981, 987 (Ohio 1990).
II. A. We review de novo the district court’s dism issal of O’Connor’s complaint for failure to state a claim under Rule 12(b)(6). See Robbins v. New Cingular Wireless PCS, LLC , 854 F.3d 315, 318 (6th Cir. 2017). We must accept the co mplaint’s allegations as true, draw all reasonable inferences in favor of O’Connor, and determine whether the complaint presents sufficient facts to state a facia lly plausible claim to relief. Id. at 319.
B. Ohio is generally an employment-at-will state. Wiles v. Medina Auto Parts , 773 N.E.2d 526, 529 (Ohio 2002). That is, an employer and employee may end their employment relationship for any reason, and the employ ee may not sue for wrongful discharge. Id. But Ohio courts recognize an exception when an employe r has wrongfully discharged an employee in violation of the stat e’s public policy. Greeley , 551 N.E.2d at 986; see also Painter v. Graley , 639 N.E.2d 51, 56 (1994) (noting th at public policy may be dis cerned based on common law).
A Greeley claim consists of four elements, each of which must be satisfied to establish a claim for wrongful termination in violation of Ohio public policy:
1. That [a] clear public policy existed and was manifested in a state or federal constitution, statute or ad ministrative regulation, or in the common law (the clarity element).Case No. 17-3864 O’Connor v. Nationwide Children’s Hosp.

- 3 - 2. That dismissing employees under circum stances like those involved in the plaintiff’s dismissal would jeop ardize the public policy (the jeopardy element).
3. The plaintiff’s dismissal was motivated by conduct related to the public policy (the causation element).
4. The employer lacked overriding legiti mate business justification for the dismissal (the overriding justification element). Jermer v. Siemens Energy & Automation, Inc. , 395 F.3d 655, 656 (6th Cir. 2005) (quoting Collins v. Rizkana , 652 N.E.2d 653, 657–58 (Ohio 1995)). The first two elements present questions of law; the sec ond two, questions of fact. See Collins , 652 N.E.2d at 658. Although the district co urt deemed O’Connor’s allegations sufficient to satisfy the clarity element at the motion-to-dismiss stage, it held ot herwise with respect to the jeopardy element. The jeopardy element endeavors to ensure that an employer understands the employee’s grievance relates to a public policy be fore terminating that employee. As Jermer explained: [A]lthough complaining employees do not have to be certain that the employer’s conduct is illegal or cite a particular law that the employer has broken, the employee must at least give the empl oyer clear notice that the employee’s complaint is connected to a governmental policy. It must be sufficiently clear from the employee’s statements that he is invoking governme ntal policy that a reasonable employer would understand that the employee relies on the policy as the basis for his complaint. 395 F.3d at 656; see also Trout v. First Energy Generation Corp. , 339 F. App’x 560, 567 (6th Cir. 2009) (emphasizing Jermer ’s “clear notice” rule regardi ng the jeopardy element). In
Jermer , an employee alleged that he was terminated for complaining to his supervisor about the air quality at his worksite. 395 F.3d at 655. This court affirm ed the dismissal of Jermer’s Greeley claim because Jermer “never connected his st atements about air quality to governmental policy or mentioned or in any way invoked governmental policy as the basis of his complaint”Case No. 17-3864 O’Connor v. Nationwide Children’s Hosp.

- 4 - and, therefore, failed to show that his termination would “j eopardize” Ohio public policy. Id. at 656. O’Connor comes up short too. In her complaint, O’Con nor alleges only that NCH retaliated against her because she “complained to [NCH]’s managers that the elevator caused her injury and was unsafe.” She pleads no facts indi cating that she gave NCH “clear notice” of her intent to vindicate a governmental policy favoring workplace safety vis-à-vis her workers’ compensation claim. Although an Ohio employee is not required to cite a specific law or statute under siege, “his statements must indicate to a reasonable employer that he is invoking governmental policy in support of, or as the basis for, his complaints.” Id. at 659. Complaining generally about a precarious elevator on the prem ises is not enough to clearly notify employers “that they are no longer dealing solely with an at-will employ ee, but with someone who is vindicating a governmental policy.” Id. We are not persuaded by O’C onnor’s suggestion that we bypass Jermer , a published decision that binds us. See Rutherford v. Columbia Gas , 575 F.3d 616, 619 (6th Cir. 2009). That Jermer considered an appeal from a summary j udgment grant 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. See Collins , 652 N.E.2d at 658. And even absent guidance from the Ohio Supreme Court on the “notice” aspect of the jeopardy element considered in Jermer , several Ohio appellate c ourts cite it favorably. Beckloff v. Amcor Rigid Plastics USA, LLC , No. S-16-041, 2017 WL 2709808, at *8 (Ohio Ct. App. June 23, 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 fundamentalCase No. 17-3864 O’Connor v. Nationwide Children’s Hosp.

- 5 - purpose “is to protect employees who seek to vi ndicate an important governmental policy; the claim does not exist to vindicate an employee’s personal interest”). 1
The dissent would also cast aside Jermer based on Sutton v. Tomco Machining, Inc. —an Ohio Supreme Court decision that determined an employee satisfied the jeopardy element by notifying his employer about an injury one hour before the employer fired him. 950 N.E.2d 938, 946–47 (Ohio 2011). But Sutton is inapposite here because it pr esented a different issue, namely whether a Greeley claim encompasses situations where “an injured employee suffers retaliatory employment action after injury on the job but before the employee files a workers’ compensation claim or institutes, pursues, or testifies in any workers’ compensation proceeding .” Id. at 941 (emphasis added). Because the remedy provisions in the Ohio workers’ compensation statute could not be accessed by the Sutton plaintiff—who, having been fired before filing a workers’ compensation claim, was not an eligible claima nt under the statute—the court held the jeopardy element was satisfied. Id. at 947. That test for the jeopardy element has no application here, however, as O’Connor was fired only after she file d a workers’ compensation claim and after she had exhausted her FMLA leave.

1 NCH argues that O’Connor neglected to alle ge facts sufficient to satisfy the clarity element. But we need not—and do not—reach that question given our conclusion regarding the jeopardy element. We find unpe rsuasive, however, NCH’s asser tion (and the district court’s conclusion) that Ohio Rev. Code § 4123.90 some how precludes O’Connor’s wrongful discharge claim. O’Connor does not allege that NCH retaliated against her because she filed a workers’ compensation claim; therefore, it is immateri al to this case that § 4123.90 “provides the exclusive remedy for employees claiming termin ation in violation of rights conferred by the Workers’ Compensation Act.” Bickers v. W. & S. Life Ins. Co. , 879 N.E.2d 201, 207 (Ohio 2007).Case No. 17-3864 O’Connor v. Nationwide Children’s Hosp.

- 6 - Nor are we swayed by O’Connor’s contention that the district court should not have analyzed the jeopardy element because NCH did not argue it in moving to dismiss the complaint. NCH raised (albeit cursorily) the argument in its motion, and elabor ated further in its reply.
III. Accordingly, we AFFIRM th e district court’s judgment.Case No. 17-3864 O’Connor v. Nationwide Children’s Hosp.

- 7 - KAREN NELSON MOORE, Ci rcuit Judge, dissenting. Since this court’s decision in Jermer v. Siemens Energy & Automation, Inc. , 395 F.3d 655 (6th Cir. 2005), the Ohio Supreme Court decided Sutton v. Tomco Machining, Inc. , 950 N.E.2d 938, 941, 946–47 (Ohio 2011), which determined that an employee satisfied th e jeopardy element when he notified his employer about an injury one hour before his employer fired him. In light of Sutton , notification of an injury is enough to satisfy the jeopardy element. 1 See 950 N.E.2d at 941, 946–47. Because O’Connor alleged that she “complained about being injured by the Defendant’s unsafe workplace prior to her constructive termination of employment,” she ad equately pleaded this element of jeopardy. R. 8 (C ompl. ¶ 19) (Page ID #63). See also Himmel v. Ford Motor Co. , 342 F.3d 593, 599–601 (6th Cir. 2003) (analyzing jeopardy element and holding employee complaint about employer’s conduct believed to violate law satisfies jeopardy element). Moreover, NCH’s motion to dismiss discu ssed the jeopardy element in a one-sentence footnote, see R. 3 (Mot. at 6 n.1) (Page ID #20), but this cour t has stated that “[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” Barany-Snyder v. Weiner , 539 F.3d 327, 331 (6th Ci r. 2008) (alteration in original) (quoting McPherson v. Kelsey , 125 F.3d 989, 995–96 (6th Cir. 1997)). And “[r]aising

1 The majority asserts that Sutton is inapplicable because O’ Connor did file a workers’ compensation claim. See Majority Op. at 5. However, the ma jority also states that it “find[s] unpersuasive . . . NCH’s assertio n (and the district co urt’s conclusion) that Ohio Rev. Code § 4123.90 somehow precludes O’Connor’s wrongful discharge claim” because “O’Connor [did] not allege that NCH retaliated against her because she filed a workers’ compensation claim.” Id. at 5 n.1. As the majority acknowledges, whethe r O’Connor filed a worker s’ compensation claim is irrelevant for this issue of jeopardy. B ecause O’Connor asserted that “[t]he Defendant retaliated against the Plaintiff because she made complaints and was injured by the unsafe workplace by terminating her employment in viol ation of the public policy of Ohio,” she adequately pleaded jeop ardy in satisfaction of Sutton . R. 8. (Compl. ¶ 20) (Page ID #63) (emphasis added).Case No. 17-3864 O’Connor v. Nationwide Children’s Hosp.

- 8 - the issue for the first time in a reply brief does not suffice.” Scottsdale Ins. Co. v. Flowers , 513 F.3d 546, 553 (6th Cir. 2008) (quoting Novosteel SA v. United States , 284 F.3d 1261, 1274 (Fed. Cir. 2002)). For these reasons, I respectfully dissent.