*

The Honorable William H. Stafford, Jr., United States District Judge for the Northern District of Florida,

sitting by designation.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 04a0176n.06

Filed: December 17, 2004

Case No. 03-3782

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DOUGLAS HERRINGTON, )

)

Plaintiff-Appellant, )

) ON APPEAL FROM THE UNITED

v. ) STATES DISTRICT COURT FOR

) THE NORTHERN DISTRICT OF

DAIMLERCHRYSLER CORPORATION, ) OHIO

)

Defendant-Appellee. )

__________________________________________

BEFORE: BATCHELDER and GIBBONS, Circuit Judges; and STAFFORD, District Judge.*

ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Douglas Herrington

appeals the district court’s grant of Summary Judgment in favor of his employer, DefendantAppellee DaimlerChrysler on Herrington’s claim that DaimlerChrysler terminated his employment

in violation of OHIO REV. CODE (ORC) § 4113.52(A)(1), Ohio’s “whistleblower” statute. We

AFFIRM the decision of the district court because ORC § 4113.52(A)(1)(a) is inapplicable in

situations where the “whistleblower” has not alleged that his employer engaged in an illegal activity.

I.

DaimlerChrysler hired Herrington as an Occupational Safety and Health Supervisor for an

automobile assembly plant (“the plant”) located in Toledo, Ohio. Herrington was responsible for
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managing the plant’s safety program, including compliance with Occupational Safety and Health

Administration (“OSHA”) regulations. Pursuant to OSHA regulations, physicians working at the

plant tracked work-related employee injuries and recorded this information on forms called “OSHA

200 Logs.” DaimlerChrysler’s safety personnel, who worked under Herrington’s supervision,

periodically reviewed these Logs to confirm that the listed injuries were work-related. When the

physicians and safety personnel agree that an injury is not work-related, DaimlerChrysler’s

corporate policy permits the physicians to “line out,” or strike, the incident from the OSHA 200

Logs.

In late 2001, DaimlerChrysler’s management learned that man-hours in the plant were being

over-reported, a mistake which artificially lowered the plant’s injury incident rate (“IR”).

DaimlerChrysler’s management initiated an investigation in December of 2001, including a review

by two health and safety employees of the plant’s OSHA 200 Logs. They concluded that some

recently lined-out incidents should be placed back on the OSHA Logs and reported as work-related

injuries or illnesses. Herrington, whose job performance was measured in part by the plant’s injury

rate, disagreed with this conclusion. He met with his supervisor, Tom Maxon, who suggested that

Herrington meet with OSHA officials to ask them whether or not the incidents in question should

be lined out. In a January 14, 2002, meeting, the regional director of OSHA told the Appellant that

the incidents in question did not need to be reported to OSHA and could therefore be lined out of

the OSHA 200 Logs.

At Maxon’s request, Herrington prepared a written report detailing his conversation with the

OSHA director. After reviewing this report, DaimlerChrysler’s management instructed Herrington

to re-enter the incidents in question on the Log, explaining the company’s intention to err on the side
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of over-reporting accidents and illnesses, and to be consistent in its reporting practices from state

to state. Herrington refused to follow this instruction, and his supervisors returned the incidents in

question to the OSHA 200 Log.

During the course of the investigation into the man-hour and line-out issues, one of

DaimlerChrysler’s physicians, Dr. Wilson, reported that Herrington had threatened to fire him unless

he lined out the incidents in question. DaimlerChrysler’s investigation of that report confirmed that

Herrington had, in fact, threatened Dr. Wilson and revealed as well that Herrington had threatened

the job of another company physician and interfered with the work of Industrial Hygienist Don

Crites. In light of this investigation, DaimlerChrysler terminated Herrington’s employment on April

15, 2002, for lining out injuries and illness from the OSHA 200 Log in violation of company policy;

threatening, intimidating, coercing, and harassing other employees; erroneously over-reporting manhours in the IR calculation for December of 2001; and attempting to interfere with

DaimlerChrysler’s investigation.

Herrington filed a complaint against DaimlerChrysler in state court in Ohio, alleging that

DaimlerChrysler violated Ohio’s “whistleblower” statute, OHIO REV. CODE § 4113.52, by

discharging him in retaliation for his meeting with OSHA officials. DaimlerChrysler removed the

case to the United States District Court for the Northern District of Ohio and moved for summary

judgment. Relying on Ohio Supreme Court authority, the district court construed the statute as

requiring an employee to provide the employer with both written and oral notice before “blowing

the whistle” to outside authorities, and granted summary judgment in favor of DaimlerChrysler

because Herrington did not submit a written report to any representative of DaimlerChrysler before

his January 14, 2002, meeting with OSHA.
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II.

We review a district court’s grant of summary judgment de novo. EEOC v. University of

Detroit, 904 F.2d 331, 334 (6th Cir. 1990). Summary judgment is appropriate where no genuine

issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED.R.

CIV. P. 56(c). In ruling on a motion for summary judgment, the court must view the facts contained

in the record, and all inferences that can be drawn from those facts, in the light most favorable to

the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). The moving party bears the burden of informing the district court of the basis for its motion

and identifying portions of the record which demonstrate the absence of a genuine issue of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving

party who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1985) (quoting FED. R. CIV. P. 56(e)). Since this court’s

jurisdiction in the instant case is founded in diversity, we apply the substantive law of Ohio. See

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).

We think it was unnecessary for the district court to reach the issue of whether Herrington’s

failure to submit a report to DaimlerChrysler before his January 2002 meeting with OSHA satisfied

the complex reporting sequence required by OHIO REV. CODE § 4113.52(A)(1)(a). As we shall

explain, we conclude that the protections of Section 4113.52 are simply not available to Herrington

under the plain language of the statute, and for that reason, summary judgment in favor of

DaimlerChrysler is appropriate.

Section 4113.52(B) of the Ohio Revised Code prohibits employers from taking “any

disciplinary or retaliatory action against an employee for making any report authorized by” section
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4113.52(A)(1). Section 4113.52(A)(1)(a) of the Ohio Revised Code provides:

If an employee becomes aware in the course of the employee’s employment of a

violation of any state or federal statute or any ordinance or regulation of a political

subdivision that the employee’s 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 the employee’s supervisor or

other responsible officer of the employee’s employer of the violation and

subsequently shall file with the supervisor or officer a written report that provides

sufficient detail to identify and describe the violation. If the employer does not

correct the violation or make a reasonable and good faith effort to correct the

violation within twenty-four hours after the oral notification or the receipt of the

report, whichever is earlier, the employee may file a written report that provides

sufficient detail to identify and describe the violation with the prosecuting authority

of the county or municipal corporation where the violation occurred, with a peace

officer, with the inspector general if the violation is in the inspector general’s

jurisdiction, or with any other appropriate public official or agency that has

regulatory authority over the employer and the industry, trade, or business in which

the employer is engaged.

Herrington complains that DaimlerChrysler terminated his employment because he reported

to OSHA that DaimlerChrysler had violated OSHA regulations. Paragraph 4 of the complaint

alleges that Herrington “became aware of a violation of the Occupational Safety and Health Act.”

Herrington testified in his deposition that the offense described in this paragraph is

DaimlerChrysler’s allegedly criminal over-reporting of work-related injuries, and he repeats this

assertion in his brief on appeal.

In order to establish a prima facie case for retaliatory discharge, Herrington is required to

demonstrate, inter alia, that he engaged in activity which would bring him under the protection of

OHIO REV.CODE § 4113.52. See Wood v. Dorcas, 757 N.E.2d 17, 23 (Ohio Ct. App. 2001). Section

4113.52(A)(1)(a) applies when “an employee becomes aware in the course of the employee’s

employment of a violation of any state or federal statute or any ordinance or regulation of a political

subdivision that the employee’s employer has authority to correct . . . .” (Emphasis added). To
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invoke the protections of Section 4113.52(A)(1)(a), a “whistleblower” must become aware of an

“illegal activity by either the employer or a co-employee.” Wing v. Anchor Media, Ltd. of Texas,

570 N.E.2d 1095, 1100 (Ohio 1991); see also Contreras v. Ferro Corp., 652 N.E.2d 940, 942-4

(Ohio 1995).

We conclude, however, that DaimlerChrysler’s alleged over-reporting on the OSHA 200

Logs did not constitute a violation of any statute, ordinance or regulation. OSHA requires certain

employers to record work-related injuries or illnesses that result in either death, time away from

work, restricted work or transfer to another job, medical treatment, loss of consciousness, or the

diagnosis of a serious physical injury by a medical professional. 29 C.F.R. § 1904.4(a); 29 C.F.R

§ 1904.7(a); see also 3 ADVISING SMALL BUSINESSES § 42:7 (2004). Title 29 of the Code of Federal

Regulations contains no penalty for employers who over-report instances of work-related injuries

or illness in their OSHA Logs, and we decline to read into the regulations a penalty on overreporting. Such a penalty would impose an unreasonably stringent duty on employers to maintain

an absolutely perfect record of work-related injuries and would inhibit employers from fully

disclosing instances of work-related injuries or illness in direct contravention of Section 1904's

stated intent to “require employers to record and report work-related fatalities, injuries and

illnesses.” 29 C.F.R. § 1904.0.

Herrington attached to his memorandum in opposition to DaimlerChrysler’s Motion for

Summary Judgment an OSHA Notice which suggests that OSHA does not view as a violation of its

regulations over-reporting of work-related injuries by employers who err on the side of caution.

This Notice, which establishes the OSHA procedures for auditing information submitted by an

employer in an OSHA 200 Log, states that “[e]mployers shall not be cited for over reporting of
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cases. The employer shall be informed of such over reporting and the need to eliminate these

identified cases on the employer’s OSHA 200 Log.” United States Dept. of Labor OSHA Notice

00-07 (CPL 2) (December 8, 2000).

We conclude that Herrington has failed to allege a violation of any statute, ordinance, or

regulation, and he has therefore failed to establish a prima facie case of retaliatory discharge under

the Ohio statute. The district court’s order granting summary judgment to DaimlerChrysler is

AFFIRMED.