In the Supreme Court of Ohio (

/. 34¢ IN THE SUPREME COURT OF OHIO (

_ 1. ’ 0 8 J1. 1 Carrie Rebello CASE NO. 1 5

Plaintiff-Appellee, On Appeal from the Cuyahoga County Court of Appeals v. Eighth Appellate District

Lender Processing Services, Inc., el al. Court of Appeals Case No. CA-14—10l764 Defendants-Appellants. Trial Court Case No. 12—cv-785870

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT LENDER PROCESSING SERVICES. INC., ET AL.

James B. Davidson (0024534) Andrew A. Kabat (0063720) Mary F. Geswein (0063361) Daniel M. Connell (0078418) Ice Miller, LLP Haber Polk Kabat, LLP 250 West Street, Suite 700 737 Bolivar Rd., Ste. 4400 Columbus, OH 43215 Cleveland, OH 441 15 (614) 462-2700 (216)241-0700 Fax: (614) 462-5135 Fax: (216)241-0739 [email protected] [email protected] [email protected] dconnell haber olk.c0m

Attorneys for Defendants-Appellants Attorneys for Plaintiff-Appellee Lender Processing Services, Inc. et al. Carrie Rebello

MAY 26 2015

CLERK OFCOURT SUPREME COURT OF OHIO

CO\48X564l.3 TABLE OF CONTENTS TABLE OF CONTENTS ...... ii

I. EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST ...... 1

II. STATEMENT OF THE CASE AND FACTS ...... 2

III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ...... , 6

Proposition of Law No. 1: ...... 6

The Appellate Court’s Decision That Rebello Stated a Claim for Public Policy Wrongful Termination Creates An Unnecessary and Flawed Exception to the Employment At—Will Doctrine and Frustrates the Purpose of 0hio’s Whistleblower Statute ...... 6

IV. CONCLUSION ...... 12 CERTIFICATE OF SERVICE ...... 14 APPENDIX

A. Court Of Appeals — Judgment Entry Rebella v. Lender Processing Servs, Inc., 8th Dist. Cuyahoga No. 101764, 2015-Ohio-1380, --- N.E.3d --- (April 9, 2015) ...... Appx. 1

B. Cuyahoga County Court Of Common Pleas Journal Entry —

Rebello v. Lender Processing Servs, Ina, Cuyahoga C.P. No. l2—CV—785870 (Jul. 21,

2014) ...... Appx. 41

CO\488564 l .3 I. EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST

This is a case of first impression in Ohio. The issue before the Court is whether a

terminated employee can circumvent Ohio’s Whistleblower Statute, R.C. §4113.52, by asserting

a common law tort claim for wrongful discharge based on public policies allegedly embodied in

the federal Gramm Leach Bliley Act (“GLBA”), 15 U.S.C. §6801, el seq. At the heart of this

case is the appellate court’s expansion of the wrongful discharge tort in a context that has never

before been recognized in Ohio and which conﬂicts with Ohio’s Whistleblower Statute.

The outcome of this case is of great importance to employers throughout the State of

Ohio. The court of appeals’ judgment threatens to expand the public policy exception to 0hio’s

employment at-will doctrine in a manner which will further erode the statutory prerequisites

contained Ohio’s in Whistleblower Statute. This court has often reiterated that “judicial policy

preferences may not be used to override valid legislative enactments, for the General Assembly

should be the ﬁnal arbiter of public policy.” See, e.g., Elam v. Carcorp, Inc., 10th Dist. Franklin

No. l2AP—260, 2013-Ohio-1635, 1l24 citing Painter v. Graley, 70 Ohio St.3d 377, 38], 639

N.E.2d 51 (1994). Yet, that is exactly what happened in this case.

This a is textbook example of a Whistleblower who failed to follow Ohio’s statutory prerequisites for whistleblowing. Ms. Rebello neglected to lodge any written complaint about purported violations of the Gramm Leach Bliley Act by her employer. As a result, she sought an end-run around the requirements of the Whistleblower Statute by repackaging her claim into a common law claim for wrongful termination in violation of public policy.

This Court has previously reminded lower courts that the public policy exception to the at-will doctrine must be reserved for limited situations. See generally Wiles v. Medina Auto

Parts, 96 Ohio St.3d 240, 2002-Ohio-3994, 773 N.E.2d 526. That guidance was not followed

CO\488S64l.3 by the Court of Appeals. The Ohio Legislature has already created a statutory remedy for

employees who suffer retaliation as a result of reporting an employer’s illegal conduct. The

remedy is embodied in Ohio’s Whistleblower Statute. As this Court has explained “there is no

need to recognize a common law action for wrongful discharge if there already exists a statutory

remedy that adequately protects society’s interest.” Wiles v. Medina Auto Parts, 96 Ohio St.3d

240, 2002-Ohio-3994, 773 N.E.2d 526 1l15. If lower courts are permitted to ignore Ohio’s

statutory whistleblower requirements and create a patchwork of judicial exceptions to the

employment at—will doctrine, the exceptions will eventually swallow the rule,

This case offers the Court an opportunity to halt the unwarranted expansion of the public

policy exception, to stem the erosion of the at-will doctrine, and to breathe life back into Ohio’s

Whistleblower Statute. As such, the Court should accept jurisdiction to hear this appeal.

II. STATEMENT OF THE CASE AND FACTS

This case arises from the termination of Carrie Rebello’s employment with Appellant

Lender Processing Services, Inc. (“LPS”) as a result of poor performance, attendance issues, and

an outburst of profanity while on thejob.

LPS provided property preservation services to ﬁnancial institutions with foreclosed asset inventories. Rebello was employed at—will as a supervisor at LPS and was assigned to the J.P.

Morgan (“Chase”) Chase account. LPS was required to access the non-public private information (“NPI") of Chase’s customers to perform its services. LPS employees accessed

Chase’s system using unique passwords and tokens which randomly generated PIN numbers.

At various times throughout their business relationship, LPS was unable to obtain a sufficient quantity of tokens from Chase to service the account. To keep up with the ever—increasing

CO\488564l .3 volume of Chase work, LPS’s processors, including Rebello, shared tokens (hereafter “password

sharing”).

Rebello contends that she “reported” the practice of password sharing to her supervisor

and threatened to tell Chase that LPS was sharing passwords. Rebello erroneously believes that

her verbal concerns about password sharing led to her termination in April, 2012.

On June 27, 2012, Rebello filed a single count Complaint against LPS alleging that her

employment was wrongfully terminated in violation of public policy. Speciﬁcally, she claimed

that her termination violated the public policies embodied in the Gramm Leach Bliley Act,

whereby financial institutions are legally required to maintain the security of customers’ NPI.

Rebello did not assert a claim under Ohio’s Whistleblower Statute.

The case proceeded to trial before a jury. Rebello offered no evidence that any Chase

customer’s NPI was compromised or that Chasc’s customers were damaged in any way by LPS’s

practice of password sharing. Rebello admitted that no Chase customer ever had confidential

information disclosed, had their identity or credit information stolen, or suffered any damage as a

result of password sharing. A Chase representative also confirmed that he was unaware of any

unauthorized disclosure of any NPI by LPS or any Chase customers who suffered damage as a

result of password sharing.

Notably, the LPS employees who shared passwords had been authorized by LPS and

Chase to access the Chase system. All LPS employees were screened by both Chase and LPS before receiving log-in credentials. LPS employees underwent background checks and drug testing by LPS at the time of hire. Chase conducted background checks and drug testing after

LPS’s screening process and prior to Chase issuing tokens to LPS employees.

CO\488564l.3 The evidence at trial also established that, while employed by LPS, Rebello spent two

years permitting and condoning password sharing. Indeed, she conceded that she also shared

passwords. Thus, her belated and untimely concerns about password sharing had absolutely

nothing to do with the disclosure of NP], and everything to do with her fear that she and her team

would lose their jobs for violating an LPS company policy against password sharing. In

Rebello’s ovsm words: “[My concern] as a supervisor of two dozen people, is that my employees,

who I care about are tremendously, going to face termination, civil or criminal proceedings if I

tell them to do something I know is wrong, they know is wrong.”

At the close of Rebello’s case, LPS moved for a directed verdict. Defense counsel

articulated two reasons why her claim should not proceed to the jury. First, Rebello did not

establish a clear public policy implicated by her termination. The evidence at trial established

Rebello’s that report of password sharing was unrelated to public policy concerns regarding the

— disclosure of NPI. Rather, her concerns were personal whether she and her team would be

fired for violating company policy. These personal concerns did not implicate a broader public

policy, nor did they invoke state or federal law. LPS also noted that the password system arose

out of the private agreement between Chase and LPS. The sharing of passwords may have violated the Chase contract, but it did not violate the law since LPS was not subject to the

Gramm Leach Bliley Act. Thus, LPS argued that a public policy claim could not arise out of a violation of a workplace mle.

Second, LPS argued that Rebello’s claim was a failed whistleblower claim disguised as a claim for wrongful termination in violation of public policy. Although Rebello claimed not to be a whistleblower because she never put her complaints in writing, whistleblowing was the essence of her claim. As a matter of law, Rebello could not replace her whistleblower claim with a

CO\488S64l .3 public policy claim when she had a remedy available to her but failed to utilize it. Having failed

to put her claim in writing, she lost the claim.

After considering argument from both sides, Trial Judge Michael Corrigan directed a

verdict in favor of Appellant. The next day, the Court issued a written opinion explaining the

rationale for the directed verdict:

This court finds that the plaintiff failed to articulate a specific, clear public policy and failed to prove that any public policy was jeopardized by her termination. The mere assertion relative to sharing passwords is insufficient to satisfy the clarity element of a wrongful termination action. There is no evidence before this court that anyone’s conﬁdential information or identity was compromised in any fashion. There is no evidence that the plaintiffs termination jeopardized any public policy.

The plaintiff failed to assert and prove a clear public policy derived from the state or federal constitution, a statute or administrative regulation or the common law. By her own admission the plaintiff did not seek redress for her termination due to age, gender, race, sexual orientation, disability, or under the “Whistlebl0wer” statute. The complaint alleges but on(e) (stet.) cause of action, that being a wrongful discharge in violation of public policy. Having failed as to the elements of clarity and causation (stet. jeopardy) this court will not address causation or whether or not the employer lacked a legitimate business justiﬁcation for her termination.

Rebello v. Lender Processing Servs., Inc., Cuyahoga C.P. No. 12-CV—785870 (Jul. 21, 2014)

(App. 41-42).

An appeal followed. The Eighth District Court of Appeals reversed the trial court’s directed verdict. Rebello v, Lender Processing Servs., Ina, 8th Dist. Cuyahoga No. 101764,

2015-Ohio—1380, -—— -—— N.E.3d (App. 1-40). The appellate court “agree[d] with Rebello that a clear public policy exists, based on the provisions of the GLBA, to prevent unauthorized access to and disclosure of nonpublic personal information of consumer customers, such as that at issue here.” “a Id. at App. 26-27, 1139. Accordingly, the court found clear public policy sufﬁcient to

an justify exception to the employment-at-will doctrine.” Id. at App. 37, 154. The court explained:

CO\488564l .3 Because we find that the GLBA manifests a clear public policy against the unauthorized access and disclosure of the nonpublic personal information of consumers that was (1) applicable to LPS in connection with the work it performed on behalf of Chase and (2) allegedly implicated in Rebello’s termination in this case, we conclude that Rebello presented sufficient evidence to satisfy the clarity element of her claim for wrongful termination in violation of public policy.

Id. at App. 35-36,1l53.

The appellate court also found that Rebello satisﬁed the “jeopardy” element necessary to

state a cognizable claim for wrongful termination in violation of public policy:

We find that without a common-law tort for wrongful discharge under these circumstances, the clear public policy against unauthorized access and disclosure of nonpublic consumer information would be compromised.

Id. at App. 38-39,1l56.

This Court now has the opportunity to correct the court of appeals’ unnecessary and

unwarranted encroachment into the employment at-will doctrine. The appellate court engaged in

improper judicial activism by crafting its own policy concerns into a never-before recognized

exception to Ohio’s at-will employment doctrine. The byproduct of the court’s decision is that

Ohio’s Whistleblower Statute has been completely ignored.

III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. 1:

The Appellate Court’s Decision That Rebello Stated a Claim for Public Policy Wrongful Termination Creates An Unnecessary and Flawed Exception to the Employment At-Will Doctrine and Frustrates the Purpose of Ohio’s Whistleblower Statute.

The common-law doctrine of employment at will generally governs employment relationships in Ohio. Wiles, 96 Ohio St.3d 240, 2002-Ohio-3994, 773 N.E.2d 526, at $5. Ohio has recognized a limited exception to the at-will doctrine for the tort of wrongful temiination in violation of public policy. Id. To state a claim for wrongful termination in violation of public

policy in Ohio, a plaintiff must establish all of the following:

6 CO\488564l.3 1. A clear public policy manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the “clarity element”);

2. Dismissals under circumstances similar to Plaintiffs dismissal would jeopardize the public policy (the “jeopardy element”);

3. Plaintiffs dismissal was motivated by conduct related to the public policy; and (“causation”)

4. The employer lacked an overriding legitimate business justification for the dismissal.

Krickler v. Brooklyn, 149 Ohio App.3d 97, 2002«Ohio-4278, 776 N.E.2d 119, ﬁll} (8th Dist.)

(citations omitted). The clarity and jeopardy elements (items 1 and 2 above) are questions oflaw

to be decided by the Court. Collins v. Rizkana, 73 Ohio St. 3d 65, 69-70, 652 N.E.2d 653

(1995).

The appellate court erred in ﬁnding that Rebello satisfied the jeopardy element of her tort

claim. The appellate court began its analysis of the jeopardy element on the right track. The

court correctly recognized that “it is unnecessary to recognize a common-law claim when remedy provisions are an essential part of the statutes upon which the plaintiff depends for the public policy claim and when those remedies adequately protect society’s interest by discouraging the wrongful conduct.” App. 37-38 at 155, citing Leininger v. Pioneer Natl. Latex,

115 Ohio St.3d 211, 2007—Ohio-4921, 875 N.E.2d 36,1l27.

Yet, in applying this well-settled principle, the appellate court erroneously disregarded the remedies available to Rebello under Ohio’s Whistleblower Statute. Indeed, the appellate court ignored LPS’s whistleblower argument altogether, summarily dismissing it in two sentences contained in “LPS a footnote: also argued that Rebello had failed to satisfy the requirements for a statutory whistleblower claim. However, Rebello had not brought a statutory whistleblower claim and did not dispute that she had not satisfied the requirements for bringing

CO\488564 l .3 such a claim.” App. 15-16, at 1l20, fn. 2. This footnote highlights the issue. There is now a

published decision in Ohio which states that an employee who does not assert a statutory

whistleblower claim is not obliged to follow the statute when she characterizes the claim as a

common law public policy claim.

Instead, the appellate court proceeded under a ﬂawed analysis, concluding that the GLBA

does not contain remedies for an employee who suffers retaliation for reporting GLBA

violations:

The GLBA contains no statutory remedies protecting employees who complain about, refuse to participate in and threaten to disclose an employer’s unauthorized access and disclosure of nonpublic consumer information. Thus, there is no existing statutory remedy that “adequately protect[s] society’s interest [in] discouraging this wrongful conduct.”

Id. at App. 38—39, $56.

The appellate court likewise drew erroneous conclusions from its erroneous legal

analysis:

If employers were allowed to terminate employees for objecting to, refusing to participate in and threatening to disclose the unauthorized access and disclosure of nonpublic consumer information, such retaliatory practices could deter employees from reporting or taking other steps to protect nonpublic consumer information from authorized access and disclosure. We find that without a common-law tort for wrongful discharge under these circumstances, the clear public policy against unauthorized access and disclosure of nonpublic consumer information would be compromised.

Id.

The appellate court clearly missed the mark, The absence of a cognizable tort claim

based solely on the GLBA will not jeopardize the public policy set forth in the GLBA, The

GLBA was intended to protect consumers from disclosure of their non-public confidential

information. It was never intended as a substitute for federal and state statutory schemes which

provide remedies d_o for employees who are wrongfully retaliated against for reporting or

C0\488564l.3 refusing to participate in an employer’s illegal conduct — in this case, Ohio’s Whistleblower

Statute.

Rebello chose not to bring a whistleblower claim because it was doomed to fail. By her

own admission, she failed to provide written notice as required under the statute. However, the

mere fact that she failed to bring the claim does not negate that a whistleblower remedy was

available to her under Ohio law. She simply failed to follow the statutory requirements

necessary to invoke that remedy. It is beyond question that Ohio’s Whistleblower statute

“adequately protect society’s interest by discouraging the wrongful conduct” of employer

retaliation. However, Rebello failed to avail herself of that remedy.

The intended purpose of the GLBA is to vindicate the rights of consumers whose are

entitled to protection of their NPI, not to vindicate aggrieved employees who try to circumvent

state and federal whistleblower laws designed to protect against the so—called retaliatory conduct

about which Rebello now complains. The appellate court erred by carving out an exception to

the at—will doctrine to resuscitate Rebello’s failed whistleblower claim.

This C0urt’s recent decision in Lee v. Cardington, as well as the courts’ holdings below,

is instructive. Lee v. Cardington, 2014-Ohio-5458, --- N.E.3d ---. Donald Lee, a former employee at the Village of Cardington, sued the Village asserting two claims: (I) that he was discharged in retaliation for reporting criminal conduct by the Village in violation of Ohio’s

Whistleblower Statute; and (2) that he was wrongfully terminated in violation of public policy as a result of his complaints that the Village engaged in illegal conduct which violated the public policies set forth in the EPA laws. Lee’s complaints related to the illegal discharge of pollutants into the public water supply by a local manufacturer and the Village’s alleged failure to

CO\488564 1.3 remediate the pollution in Violation of state and federal environmental protection laws. Id at

1|1l12—14.

The trial court granted summaryjudgment in favor of the Village on both claims, finding

that Lee failed to satisfy the statutory whistleblower requirements and failed to satisfy the

jeopardy element of his public policy tort claim. Id at ﬁ[14. The court of appeals affirmed in part

and reversed in part. Lee v. Cardington, 5th Dist. Morrow No. 12CAOOl7, 2013—Ohio-3108, 1l38

(“Lee 5th Dist.”). The appellate court reversed the trial court’s entry of summary judgment on

Lee’s whistleblower claim, finding that Lee lodged a proper complaint to satisfy the statutory

requirements of a whistleblower under RC. 4113.52. Id. at W17-28.

The court affirmed the trial couI1’s dismissal of Lee’s public policy wrongful termination

claim. Id at W29-37. The appellate court rejected Lee’s argument that his public policy claim

for wrongful discharge could lie in addition to his whistleblower claim, explaining: “We find the

remedies in Appellant’s statutory whistleblower claims adequately protect society’s interest in

discouraging the wrongful conduct at issue.” Id. at 1l32. In so holding, the court of appeals

relied heavily upon this Court’s decision in Leinenger v. Pioneer National Latex, 1 15 Ohio St.3d

31 1 (2007). Quoting Justice Lanzinger’s opinion in Leinenger, the appellate court explained:

It is clear that when a statutory scheme contains a full array of remedies, the underlying public policy will not be jeopardized if a common-law claim for wrongful discharge is not recognized based on that policy. The parties question what should happen if a statutory scheme offers something less than complete relief. Appellants urge this Court to follow Wiles [v. Medina Auto Parts, 96 Ohio St.3d 240, 2002—Ohio-3994], while appellee and her amici curiae advocate reliance on Kulch [ v. Structural Fibers, Inc. 78 Ohio (1997), St.3d 134]; both Wiles and Kulch are plurality opinions with regard to the issue pertinent to this case. After considering our prior decisions, we conclude that it is unnecessary to recognize a common law claim when remedy provisions are an essential part of the statutes upon which the plaintiff depends for the public claim policy and when those remedies adequately protect society’s interest by discouraging wrongful conduct.”

CO\488564I .3 Lee 5th Dist, at 31 quoting 11 Leiriinger, 115 Ohio St.3d 311, 2007—Ohio-4921, 875 N.E.2d 36, at

117 (emphasis added).

In addition, the Lee court relied upon this Court’s prior holding in Wiles, quoting as

follows:

A[n] analysis of the jeopardy element necessarily involves inquiring into the existence of any alternative means of promoting the particular public policy to be vindicated by a common-law *** wrongful-discharge claim. Simply put, there is no need to recognize a common-law action for wrongful discharge if there already exists a statutory remedy that adequately protects society’s interests.

Lee 5th Dist., 2013-Ohio-3108, at 1136 quoting Wiles, 96 Ohio St.3d 240, 2002»Ohio-3994, 773

NE2d 526, at 1115.

Based on Court’s this decisions in Leirziriger and Wiles, the Lee court of appeals rejected

Lee’s public policy “We claim, explaining: find the remedies provided in Appellant’s statutory

whistleblower claims adequately protect society’s interest in discouraging the wrongful conduct

at issue.” Lee 5th Dist., at 1132.

The appellate court’s decision regarding Lee’s public policy claim was not considered, thus not disturbed, on appeal to this Court Lee V, Cardington, 137 Ohio St.3d 1440, 20l3-Ohio-

5678, 999 N.E.2d 695 (declining cross-appeal on wrongful termination in violation of public policy claim). This Court reversed the appellate coun’s decision in Lee only as to the whistleblower claim, ﬁnding that Lee did not satisfy the statutory notice prerequisites as a whistleblower under the Ohio statute. Lee, 2014-Ohio-5458, ——- N.E.3d ~--, at 1118-32.

The only difference between Lee and this case is that Rebello never asserted a whistleblower claim because she knew it would fail. Rebello therefore claims that Ohio’s

Whistleblower Statute is irrelevant. As a matter of common sense and sound policy, an employee who fails to follow the statutory requirements of the Whistleblower Statute should not

1 1

C0\488564| .3 be rewarded by successfully disguising her failed whistleblower claim as a common-law ton

claim for public policy wrongful discharge.

Thus, having failed to fully comply with the requirements of the whistleblower statute,

Rebello cannot pursue a claim premised upon a public policy which is already encompassed by

Ohio’s whistleblower law. See Krickler, 149 Ohio App. 3d 97, 2002—Ohio-4278, 776 NE2d

119, at 1113 (interpreting Ohio Supreme Court precedent to declare that Greeley claim cannot be

premised upon public policy considerations of whistleblower statute if requirements of

whistleblower statute are not complied with fully); Evans v. PHTG, Inc. 1 1th , Dist. Trumbull No.

2001-T-0054, 2002-Ohio-3381, fn. 4 (plaintiff barred from bringing Greeley claim premised

solely upon the public policy embodied in Ohio’s whistleblower statute as she failed to comply

with the dictates of that statute); Davidson v. BP Am., Inc., 125 Ohio App. 3d 643, 649-651, 709

N.E.2d 510 (8th Dist.l997) (holding that accounting firm employee who was discharged from

reporting criminal conduct of employer could not maintain a claim for wrongful discharge in

violation of public policy where the public policies relied upon by the employee were embodied in the whistleblower statute and the employee failed to comply with the statute); Contreras v.

Ferra Corp, 73 Ohio St.3d 244, 251, 652 N.E.2d 940 (1995) (“if appellant was entitled to maintain a Greeley claim, an issue that today we do not decide, then the claim would have to be based upon a public policy embodied in Revised Code §4l13.52. Since appellant did not comply with the statute in the first instance, he would have no foundation for a Greeley claim if, in fact, he was entitled to assert such a claim).

IV. CONCLUSION

The court of appeals carved out an entirely new exception to the at-will doctrine by recognizing a public policy claim under the Gramm Leach Bliley Act. This exception has never before been recognized under Ohio law, nor should it be. The Legislature enacted the Ohio

12 CO\4S8564l.3 Whistleblower Statute to provide an appropriate remedy in the very circumstances present here.

The court of appeals has opened an avenue of relief which the General Assembly did not intend‘

Accordingly, this Court should exercise its discretion and grant jurisdiction to hear the important

question of whether this exception to at-will employment should be permitted to stand,

This Court has detemrined when public policy exceptions should be recognized and has

established the boundaries of such exceptions. By accepting jurisdiction, this Court has an

opportunity to circumscribe the unrestrained expansion of the public policy exception to a

seemingly unending of fact array patterns and to reinstate the principle that employment at will is

the nomr in Ohio.

Respectfully submitted,

' 6'!’ . Davidson 4534)

. F. Geswein ~, (0063361) Ice Miller, LLP 250 West Street, Suite 700 Columbus, OH 43215 (614) 462-2700 Fax: (614)462-5135 [email protected] mimi.geswein@icemillericom

Attorneys for Defendants-Appellants

Lender Processing Services, Inc. et al.

CO\488564 1 .3 CERTIFICATE OF SERVICE

The undersigned hereby certiﬁes that a copy of the foregoing was served upon the

following persons this 26th day of May, 2015 via regular U.S. Mail, postage prepaid, and via

email:

Andrew A. Kabat Daniel M. Connell Haber Polk Kabat, LLP 737 Bolivar Rd., Ste. 4400 Cleveland, OH 441 15 (216) 241-0700 Fax: (216)241-0739

J es E, Davidson

14 co\4sase41.3 APPENDIX APR 0 9 2015

Qtnurt of Qppealg of ®btu

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND ‘OPINION No. 101764

CARRIE REBELLO

PLAINTIFF-APPELLANT VS. LENDER PROCESSING SERVICES, INC., ET AL.

DEFENDANTS-APPELLEES

JUDGMENT: REVERSED AND REMANDED

mxso

couusa Civil Appeal from the

[ES-COSTS Cuyahoga County Court of Common Pleas to Case No. 12-CV-785870

MAILED PART

BEFORE: E.A. Gallagher, P.J., E.T. Gallagher, J and Laster J. ALL ., Mays, uoncz FOR RELEASED AND JOURNALIZED: April 9, 2015

APPENDIX 1 MfifiifliiliiiiinnilumlmnIllumfliiif_/ .i_

ATTORNEYS FOR APPELLANT

Andrew A. Kabat Daniel M. Connell Haber Polk Kabat, L.L.P. 737 Bolivar Rd. Suite 4400 Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEES

James E. Davidson Mary F. Geswein Ice Miller L.L.P. 250 West Street, Suite 700 Columbus, Ohio 43215

APPENDIX 2 EILEEN A. GALLAGHER, P.J.:

H] 1} Plaintiff-appellant Carrie Rebello appeals from the trial court’s

judgment entering a directed verdict on her claim for wrongful discharge in

violation of public policy against defendants-appellees Lender Processing

Services, Inc., et al. (collectively, “LPS”).‘ Rebello claims that she was

wrongfully terminated in violation of public policy from her employment at LPS

because she objected to, and threatened to, report LPS’s practice of password

sharing among LPS employees when accessing the nonpublic customer

information of one of its largest clients, JPMorgan Chase Bank, N .A. (“Chase").

For the reasons that follow, we reverse the trial court’s judgment.

Procedural and Factual Background

{$12} LPS is in the business of providing processing, technology and field

services to clients, including mortgage lenders and ﬁnancial institutions. The

services provided by LPS include inspections, property validation for repairs and

‘ Rebello’s original complaint was ﬁled against Lender Processing Services, Inc., LPS Field Services, Inc., FIS Field Services, Inc., LPS Management, L.L.C. and Lori Fryer. In June 2014, Rebello was granted leave to ﬁle an amended complaint adding Black Knight Infoserve, L.L.C., Black Knight Field Services, L.L.C., Black Knight Management Service, L.L.C., ServiceLink Field Services, Inc. and ServiceLink Management Company, L.L.C. as additional defendants due to various corporate name changes that had occurred. On July 11, 2014, the parties entered into a stipulation agreeing that the real parties in interest in the case were ServiceLink Field Services, Inc, (formerly known as FIS Field Services, Inc., LPS Field Services, Inc. and Black Knight Field Services), Black Knight InfoServe Inc. (formerly known as Lender Processing Services, Inc.), Black Knight Management Services, Inc. (formerly known as LPS Management, L.L.C.) and Lori Fryer. These entities are collectively referred to herein as “LPS."

APPENDIX 3 services and loss mitigation in connection with defaulted assets. From August

2009 until her termination on April 11, 2012, Rebello was employed by LPS as

a supervisor in its property preservation department. She worked in LPS’s

Solon, Ohio office. Rebello supervised a team of employees who provided ﬁeld

services for properties owned by customers of Chase that were in default or foreclosure. In performing property preservation services for Chase, LPS employees used a secured, electronic database (the “MSP system") to access the nonpublic information of Chase’s customers. Accessing the MSP system involved a two-step process: (1) Chase provided tokens to LPS employees that included random PIN numbers and (2) LPS employees were required to enter a username and password after using the token. All LPS employees were screened by both

Chase and LPS before receiving log-in credentials. Chase, however, ultimately controlled who at LPS was authorized to access Chase’s customer information on the MSP system. For LPS employees to be authorized to access Chase’s customer information, they had to be both (1) authorized by LPS to work on the

Chase account and (2) authorized by Chase to access Chase’s account information through the MSP system. This process included training, a background check and a drug test. Once authorized by Chase, the LPS employee received a token and a unique username/password to access the MSP system.

H13} Over the course of the relationship between LPS and Chase, LPS employees encountered difﬁculties in accessing the MSP system due to delays

APPENDIX 4 in receiving the authorizations or tokens necessary to access the system. As a

“work around” to the access problem, LPS employees began to share tokens,

usernames and/or passwords (“password sharing”).

H14} Both LPS and Chase had clear policies prohibiting password sharing among DPS employees. Section 10.3 of the Master Agreement governing the relationship between Chase and LPS (the “Master Agreement”) provided:

J PMC [Chase] will assign a login code (a “Login ID”) to each of the Supplier [LPS] Personnel who will have access to the JPMC Systems. Only the individual who was assigned a Login ID may use that Login ID. Supplier will not permit any Login ID to be shared or used by any other individual. Supplier will be responsible for all access to the JPMC Systems by any person using a Login ID issued to any of the Supplier Personnel.

Section 10.5 of the agreement further provided that LPS was to immediately notify Chase of any actual or threatened and conﬁrmed security breach in or unauthorized access to Chase’s systems.

H15} Jack Evans, Chase’s vice president in property preservation and the

Chase relationship manager or “point person” for LPS, testiﬁed that Chase’s password policy was designed to prevent unauthorized use and disclosure of nonpublic information belonging to Chase’s customers. LPS’s management similarly acknowledged that Chase’s and LPS’s anti-sharing policies were designed, at least in part, to help prevent unauthorized persons from accessing

Chase’s customers’ nonpublic information. For example, Curtis Larson, Rebello's

APPENDIX 5 supervisor from 2009 to October 11, 2011, testified that “the concept” of

prohibiting password sharing was “to help protect those who were not authorized

and did not have the ability to otherwise access a consumer's [nonpublic

information] .” Lori Fryer, Rebello’s supervisor from October 2011 until her

termination in April 2012, similarly acknowledged that if passwords were shared

among LPS employees, the conﬁdentiality of Chase’s customers’ nonpublic

information could be jeopardized. Notwithstanding their knowledge of the

policies prohibiting password sharing, LPS’s property preservation supervisors

and managers did not stop the practice because they felt they needed .to share

passwords in order to handle the volume of business that Chase was assigning

to LPS. Evans testiﬁed that, other than a couple of days in February 2010, when

LPS employees were having problems logging onto the MSP system and Chase

granted LPS employees permission to share passwords, he was not aware that

LPS employees were sharing passwords. Evans further testiﬁed that he believed

the subsequent password sharing he later learned was occurring among LPS

employees violated the master agreement because “when passwords were being

shared, that meant somebody had unauthorized access to personal customer

information that they were not entitled to” but that he was not aware of “any

unauthorized disclosure of any non—public information by LPS” or “any individuals who somehow suffered any kind of damage” as a result of password sharing by LPS.

APPENDIX 6 H16} Rebello testiﬁed that she first learned that LPS employees were

sharing passwords in January 2010. She testified that she thereafter had

several discussions with her then supervisor, Larson, regarding the issue. She

testified that Larson responded that password sharing was “a temporary ﬁx.”

Larson acknowledged that Rebello had raised concerns regarding password

sharing with him. Although he did not recall speciﬁcally what was said, he

testiﬁed that he recalled telling Rebello something to the effect of

“[m]anagement is working on the issue. Continue to focus on your job.” Larson

further testiﬁed that upper management was aware that password sharing was

occurring and that although he knew LPS had an obligation under its contract

with Chase to immediately notify Chase of any unauthorized access to the MSP

system and to inform Chase that its employees were sharing passwords, LPS did

not inform Chase that its employees were sharing passwords, deciding instead

“to handle the matter internally.” Despite her concerns regarding password sharing, Rebello testiﬁed that she was aware that other LPS employees were using her password to work on the Chase account.

{1I7‘} Password sharing intensiﬁed in October 2011, when Chase began to

“dramatically increase” the volume of work being handled by LPS. At that time,

Lori Fryer took over management of the Chase account. To handle the increased workload, LPS hired additional employees and requested additional authorizations from Chase for those employees to access the MSP system. LPS

APPENDIX 7 was unable to get Chase to promptly assign passwords and grant access to all

the LPS employees who were hired to work on the Chase account. As a result,

LPS’s employees did not have sufficient access to the MSP system and resorted

to password sharing to perform the work LPS was receiving from Chase.

W8} Rebello testiﬁed that shortly after Fryer took over management of the

Chase account in October 2011, Rebello had discussions with her regarding password sharing. Rebello testified that she told Fryer that there was a problem

with password sharing and that they needed to address it and get additional access from Chase. Fryer told her to “[s]tay the course” and that she was handling the issue. Fryer testified that at the time, she knew that password sharing was prohibited by Chase's and LPS's policies, put the nonpublic information of Chase’s customer's at risk and exposed both Chase and LPS to potential violations of the law. She further testified that although she knew she had an obligation to inform Chase that passwords were being shared, she did not disclose the practice to Chase because she knew it was prohibited and did not want to risk losing the Chase account. Fryer did not inform her supervisors that passwords were being shared. Instead, Fryer testified,‘ she contacted Chase executives and requested that they become more involved in acquiring the number of tokens LPS employees needed to access the MSP system.

{ﬂ[9} In February 2012, an employee who had worked in LPS’s Denver office reported to human resources, in connection with her resignation from the

APPENDIX E company, that her group had been sharing passwords. In response to the

incident, a conference call was held with all of the property preservation

department supervisors (including Rebello), Fryer, Fryer’s supervisor, Tim

Guertin and Guertin's supervisor, Pat Gluesing. During the call, upper

management stated that password sharing “must stop."

H[ 10} After the call, Rebello became “animated" about password sharing,

expressing her concern to Fryer that everyone was going to be ﬁred. Fryer

testified that she told Rebello to “calm down,” “stay the course" and “to focus on

her team and production." Fryer testified that Rebello asked who was going to

tell Chase about LPS’s password sharing. Fryer responded that it was not their

responsibility to communicate that information to Chase and that it would be

handled through appropriate channels in the Information Security Ofﬁce

(“ISO”). Although Fryer testified that it was her “expectation" that no one in her

department was sharing passwords after the call, LaSheen Farley, another

supervisor working on the Chase account who reported to Fryer testified that

Fryer allowed password sharing to continue in their department until July 2012.

{1} 11} On February 29, 2012, Rebello and other LPS employees received

an email LPS’s from Human Resource Manager addressing password security, which stated in relevant part:

Please read the attached reminder about password security. As LPS employees we are all responsible for maintaining the integrity and security of our systems and or clients[’] systems that we have access

APPENDIX 9 to. Do NOT share your passwords with anyone for any reason. Violations of our Company policies, including security policies, may lead to disciplinary action up to and including termination.

The attachment provided information regarding the creation of strong passwords

and protecting passwords and also provided:

It is important all LPS employees understand the importance of using a strong password and not sharing logins/passwords for any purpose as outlined in the below excerpt from the LPS Employee Handbook. This policy applies to all systems/electronic equipment requiring a user name and/or password that you have access to including clients, suppliers, etc.

If you receive an assignment that requires access to a system that either you or one of your direct reports do not have, please let your * * * * * * supervisor know so other arrangements can be made until needed access has been obtained.

In the LPS Employee [Hlandbook under Electronic Communications

System Integrity and Security: Employees may not use any personal login and/or password that have been assigned to anyone other than the Employee.

Consequences of Policy Violations: Violations of this Policy may result in disciplinary action up to and including immediate termination ofan employee’s employment as well as possible civil liabilities or criminal prosecution. Where appropriate, the Company may advise legal officials or appropriate third parties of policy violations and cooperate with official investigations. We will not, of course, retaliate against anyone who reports possible policy violations or assists with investigations.

W12} Rebello testified that after the conference call and February 29,

2012 email, she determined that the practice of password sharing “must stop" as it related to her team because she did not want to subject her team to a risk

APPENDIX 10 of termination, civil liability or criminal prosecution as set forth in the February

29, 2012 email. She testified that approximately two weeks after receiving the

email, she again spoke with Fryer regarding her concerns about password

sharing.‘ Rebello testified that she told Fryer “it had to absolutely stop” and that

she was going to instruct her team not to share passwords anymore “even if it meant our volume was going toplummet.” She further testified she told Fryer that Chase needed to be advised that they had been previously sharing passwords, that they were not sharing passwords any longer and that, as a result, their production was going to “decrease considerably.” Rebello testified that she told Fryer that if the issue was not resolved, she was going to raise the issue with upper management or Chase. Rebello testified that Fryer told her that “ISO would handle it."

{ 1[ 13} Rebello testified that she then instructed her assistant supervisors that password sharing would no longer be permitted on her team. Rebello claimed that, before she could raise her concerns regarding password sharing to

“the next level,” she was terminated.

{1[14} LPS denied that Rebello was terminated due to her threats to disclose LPS’s practice of sharing passwords and claimed that she was terminated due to an “outburst of profanity on the production ﬂoor” and other performance issues. Fryer testiﬁed that in early March she raised concerns regarding Rebello’s tardiness and attendance with human resources. A coworker

APPENDIX 11 thereafter complained to Fryer regarding an incident that occurred on April 2,

2012, in which Rebello used profanity during a personal telephone call. The

coworker claimed the incident was disruptive and made him uncomfortable.

Fryer reported the incident to human resources that investigated the complaint.

Lisa Miles, the human resources representative who conducted the

investigation, testified that she learned that this was not the ﬁrst time such an

incident had occurred involving Rebello and that other coworkers had been

similarly bothered by Rebello’s disruptive personal telephone calls. Miles testified that based on her investigation, human resources recommended that

Rebello be terminated.

H115} LPS thereafter decided to terminate Rebello’s employment.

Rebello‘s' "termination document” indicated that she was terminated for disrupting the work environment, unsatisfactory performance, violation of policies and procedures, challenges with supervisory execution and challenges with attendance, punctuality and time off. Rebello denied that her April 2, 2012 telephone call was disruptive. She also denied that she had attendance issues and claimed that she was not told about any alleged performance issues prior to her termination and, therefore, could not state whether the specific concerns raised with regard to her performance were accurate.

(1116) On June 27, 2012, Rebello filed a complaint against LPS, alleging that her employment was wrongfully terminated in violation of public policy.

APPENDIX 12 Rebello claimed that she was terminated because she told the employees she

supervised that they were not to share passwords or access Chase customer

information from unsecured locations under any circumstances and advised her

supervisor that Chase “must be told of the past, and ongoing, violations relating to customer, non-public personal information.” Rebello alleged that the termination of her employment, shortly after these discussions, “implicated” and

“was motivated by and causally connected to” “several clear public policies,” including, but not limited to, policies prohibiting the unauthorized disclosure of nonpublic conﬁdential information found in the Gramm-Leach-Bliley Act, 15

U.S.C. 6801, et seq. and its implementing regulations, the Fair Credit Reporting

Act, 15 U.S.C. 1681, et seq., the Fair Debt Collection Practices Act, 15 U.S.C.

1692 et seq., and R.C. 1349.19. Rebello sought to recover compensatory and punitive damages from LPS as a result of her alleged wrongful termination.

to’ {1[17} On August 1, 2012, LPS filed a motion dismiss Rebello’s complaint pursuant to Civ.R. 12(B)(6), asserting that none of the statutes or regulations Rebello had identiﬁed in her complaint “involves public policy concerns as a matter of law” and that, as such, Rebello had failed to state a claim for wrongful discharge in violation of public policy. LPS argued that Rebellds allegations “did not implicate public policy concerns” and that the statutes and regulations identiﬁed in Rebello’s complaint either did not apply to LPS or were not triggered by any conduct alleged by Rebello. Rebello opposed the motion,

APPENDIX 13 asserting that the laws and regulations she had identified require entities such

as LPS to maintain the security of nonpublic personal information and that she

had alleged sufficient facts in her complaint demonstrating the applicability of

these public policies in this case. The trial court denied LPS's motion to dismiss, concluding that “the statutes relied upon by plaintiff in her complaint implicate public policy concerns." LPS thereafter ﬁled its answer, denying the material allegations of the complaint and asserting various affirmative defenses.

H18} After nearly a year-and-a-half of discovery, LPS filed a motion for summary judgment arguing, once again, that Rebello could not establish her claim for wrongful termination in violation of public policy as a matter of law.

LPS argued that it was not subject to any of the four statutes Rebello relied on in support of her claim, that the objections that Rebello contended led to her termination were limited to “password sharing” and that there was nothing in any of the statutes cited by Rebello that prohibited “password sharing.” Rebello opposed the motion. The trial court denied the motion, concluding that Rebello had satisﬁed the clarity and jeopardy elements of her claim and that genuine issues of material existed for trial regarding the causation and business justification elements of her claim.

M19} The case was then transferred to a visiting judge for trial. Trial commenced on July 14, 2014.

APPENDIX 14 N20] At the close of the plaintiffs case, LPS moved for a directed verdict,

arguing that Rebello had failed to establish the clarity and jeopardy elements of

her claim because (1) she had complained only about “password sharing” (and

never raised a concern regarding the disclosure of nonpublic information); (2)

there was no law or public policy that prohibited “password sharing” in and of

itself and (3) Rebellds concern regarding password sharing was based on a fear

that she or others on her team would lose their jobs if they were found to have

violated company policies prohibiting password sharing, not a concern that

nonpublic information would be disclosed? In response, Rebello argued that

LPS’s anti—password sharing policy was based on its obligations to maintain the

security of nonpublic information under the Gramm-Leach-Bliley Act and that

by objecting to password sharing as a policy violation, she was also implicitly

objecting to LPS’s failure to comply with its legal obligations under the act and

its implementing regulations. Rebello further argued that she had presented

evidence establishing that it was her threat to go to Chase “to vindicate her concern” that led to her termination. The trial court agreed with LPS. After hearing argument on the issue, the trial court granted the motion, concluding

7 LPS also argued that Rebello had failed to satisfy the requirements for a statutory whistleblower claim. However, Rebello had not brought a statutory whistleblower claim and did not dispute that she had not satisﬁed the requirements for bringing such a claim.

APPENDIX 15 that Rebello had failed to establish the clarity and jeopardy elements of her

wrongful termination claim. As the trial court explained:

This court finds that the plaintiff failed to articulate a specific, clear public policy and failed to prove that any public policy was jeopardized by her termination. The mere assertion relative to sharing passwords is insufficient to satisfy the clarity element of a wrongful termination action. There is no evidence before this court that anyone’s confidential information or identity was compromised in any fashion. There is no evidence that the plaintiffs termination jeopardized any public policy.

The plaintiif failed to assert and prove a clear public policy derived from the state or federal constitution, a statute or administrative regulation or the common law. * * * The complaint alleges but on[e] cause of action, that being a wrongful discharge in violation of public policy. Having failed as to the elements of clarity and causation [sic], this court will not address causation or whether or not the employer lacked a legitimate business justification for termination.

W21) Rebello timely appealed the trial court's judgment, raising the

following assignment of error for review:

The trial court erred by granting Defendants-Appellees’ motion for directed verdict on the grounds that Plaintiff failed to establish the clarity and jeopardy elements of her claim for wrongful discharge in violation of public policy.

Law and Analysis

H22} As an initial matter, we ﬁrst address the issue of whether the trial court erred in entering a directed verdict in favor of LPS based on Rebello’s failure to ‘satisfy the clarity and jeopardy elements of her claim, given its prior contrary ruling in favor of Rebello addressing the same issues. Rebello contends

APPENDIX 16 that because the original trial judge had ruled in her favor on LPS’s motion for

summary judgment, concluding that “plaintiff has satisﬁed the clarity and

jeopardy elements of her claim," the visiting judge lacked authority to direct a

verdict in favor of LPS based on Rebello’s failure to satisfy the clarity and

jeopardy_elements of her claim. We disagree.

H123} A trial court has plenary power to review its own interlocutory

rulings before enteringﬁnal judgment. Tablack u. Wellman, 7th Dist. Mahoning

No. 04-MA-218, 2006-Ohio-4688, 1] 38. Pursuant to Civ.R. 54(B), any order that

adjudicates fewer than all of the claims between parties is subject to revision at

any time before the entry of judgment adjudicating all the claims and the rights

and liabilities of all the parties. The trial court's order on summary judgment

was interlocutory in nature; it did not fully adjudicate Rebello’s claim and,

therefore, was not a ﬁnal order. Accordingly, it was within the trial court's

discretion to reconsider its prior summary judgment ruling at trial. Tablack,

2006-Ohio~4688 at 1] 39, citing State ex rel. Overmeyer u. Walinski, 8 Ohio St.2d

23, 222 N.E.2d 312 (1966); Frazier U. Rodgers Builders, 8th Dist. Cuyahoga No.

91987, 2010-Ohio-3058, TI 64-67; see also Gracetech Inc. I). Perez, 8th Dist.

Cuyahoga No. 96913, 2012—Ohio-700, 29. 1]

{1[24} The fact that the visiting judge reconsidered the previous judge's‘ ruling is of no consequence. “[V]isiting judges may, in their discretion, defer to the rulings of the original judge, but are also not prohibited from exercising

APPENDIX 17 discretion to revisit prior rulings.” Zappola U. Rock Capital Sound Corp., 8th

Dist. Cuyahoga No. 2014-Ohiov2261, O’Connor 100055, 11 35, citing u. Fairview

Hosp., 8th Dist. Cuyahoga No. 98721, 2013-Ohio-1794, citing Schultz U. Duffy,

8th Dist. Cuyahoga No. 93215, 2010-Ohio-1750. Both decisions here were

decisions of the Cuyahoga County Common Pleas Court. “We should not look at

them as decisions of particular judges.” Tablack at 1] 40. Accordingly, the

visiting trial judge was not precluded from reconsidering the assigned trial

judge’s decision on summary judgment in ruling on LPS’s motion for directed

verdict.

HI25} We now turn to the merits of Rebello’s appeal.

Standard of Review

{1[26} In her sole assignment of error, Rebello argues that the trial court

erred when it granted LPS’s motion for a directed verdict. We review the grant

or denial of a motion for directed verdict pursuant to a de novo standard of review. Lareta u. Allstate Ins. Co., 8th Dist. Cuyahoga No. 97921, 2012-Ohio-

3375, TI 5, citing Grau v. Kleinschmidt, 31 Ohio St.3d 84, 90, 509 N.E.2d 399

(1987). We construe the evidence presented most strongly in favor of the nonmoving party and determine whether reasonable minds could only reach a conclusion that is against the nonmoving party. Siuit u. Vill. Green of

Beachwood, 8th Dist. Cuyahoga No. 2013-Ohio- 98401, 103, 1[ 1 1, citing Titanium

Industries 12. S.E.A. Inc., 118 Ohio App.3d 39, 691 N.E.2d 1087 (7th Dist.1997),

APPENDIX 18 citing Byrley U. Nationwide Ins. Co., 94 Ohio App.3d 1, 640 N.E.2d 187 (6th

Dist.1993). In considering whether a trial court properly granted a motion for

directed verdict, we do not weigh the evidence or test the credibility of the

witnesses. Sivit at {I 12. We assume the truth of the evidence supporting the

facts essential to the claim of the party against whom the motion is directed and

give that party the beneﬁt of all reasonable inferences from that evidence. Id.,

citing Becker U. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202, 206, 560 N.E.2d

165 (1990), citing Ruta U. Breckenridge-Remy Co., 69 Ohio St.2d 66, 68, 430

N.E.2d 935 (1982).

N27) In Ohio, the common-law doctrine of employment at-will governs

employment relationships. As such, an employer’s termination of an at-will

employee’s employment relationship with the employer does not generally give rise to an action for damages. Dohme U. Eurand Am., Inc., 130 Ohio St.3d 168,

2011~Ohio-4609, 956 N.E.2d 825, 1] 11, citing Collins 1). Rizkana, 73 Ohio St.3d

-652 65, 67, N.E.2d 653 (1995). If, however, an employee is terminated in contravention of a clear public policy articulated in the Ohio or United States

Constitution, federal or state statutes, administrative rules and regulations or the common law, a cause of action for wrongful termination in violation of public

policy may exist as an exception to the general rule. Pointer U. Graley, 70 Ohio

St.3d 377, 639 N .E.2d 51 (1994), paragraphs two and three of thesyllabus.

APPENDIX 19 H28} To prevail on a claim of wrongful discharge in violation of public

policy, a plaintiff must establish four elements: (1) that there exists a clear

public policy that is 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 plaintiffs dismissal would jeopardize the public policy (the “jeopardy element”); (3) that the plaintiffs dismissal was motivated byiconduct related to the public policy (the

“causation element”); and (4) that the employer lacked an overriding legitimate business justiﬁcation for the dismissal (the “overriding justification element”).

Collins, 73 Ohio St.3d at 69-70. The clarity and jeopardy elements are questions of law to be decided by the court, and the causation and overriding justification elementsare questions of fact to be decided by the factfmder. Id. at 70. At issue in this appeal are the clarity and jeopardy elements of Rebellds claim.

Clarity

H129} To satisfy the clarity element of a claim of wrongful discharge in violation of public policy, a terminated employee “must articulate a clear public policy by citation to specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law.”

Dohme at syllabus. “[A] public policy sufficient to overcome the presumption in favor of employment at will is not limited to instances in [which] the statute expressly forbids termination, but may be discerned from legislation generally,

APPENDIX 20 or from other sources of law.” Jacobs u. Highland Cty. Bd., 4th Dist. Highland

No. 13CA20, 2014~Ohio—4194, 1] 16, citing Powers 1;. Springfield City Schools, 2d

Dist. Clark No. 98-CA-10, 1998 Ohio App. LEXIS 2827 (June 26, 1998), citing

Painter at 384; Zajc u. Hycomp, 172 Ohio App.3d 117, 2007-Ohio—2637, 873

N.E.2d (“[’I‘]he * * * 837, 1] 27 (8th Dist.) wrongful-discharge tort is not limited

* * * to situations where the discharge violates a statute. [C]ase law

demonstrates that the cited policy need not prohibit discharge per se.”).3

(1]30) Rebello contends that there is a public-policy against terminating

employees for objecting to and refusing to participate in the unauthorized access

and disclosure of nonpublic consumer information.‘ Rebello contends that she

identified “several clear public policies” manifested in the (1) the Fair Credit

Reporting Act, 15 U.S.C. 1681, et seq. (“FCRA"), (2) R.C. 1349.19 (disclosure of

breach of security system) and (3) the Gramm-Leach-Bliley Act, 15 U.S.C. 6801,

et seq.‘ and its implementing regulations (“GLBA”) that were “implicated by her

termination” and that the trial court, therefore, erred in granting a directed

verdict based on her failure to satisfy this element of her claim.

3 LPS cites Greeley :2. Miami Valley Maint. Contra, 49 Ohio St.3d 228, 234, 551 N.E.2d 981 (1990), for the proposition that “an employee must be discharged for a reason prohibited by statute” to satisfy the clarity element. Although Greeley held that “public policy warrants an exception to the employment-at-will doctrine” when an employee is discharged for a reason which is speciﬁcally prohibited by statute," it is not the only basis upon which Ohio courts have recognized an employee’s termination violates public policy. (Emphasis added.) Greeley at paragraph one of the syllabus.

‘ Rebello has apparently abandoned her claim that her termination violated a public policy implicated by the Fair Debt Collection Practices Act.

APPENDIX 21 (1131) In response, LPS contends that the trial court properly entered a

directed verdict in its favor because (1) Rebe1lo’s complaints were limited to

“password sharing”; (2) none of the statutes upon which Rebello relies prohibits

“password sharing”; (3) none of the statutes upon which Rebello relies applies to

LPS and (4) there is no public policy against “password sharing.”

H132} The stated purpose of FCRA is “to require that consumer reporting

agencies adopt reasonable procedures for meeting the needs of commerce for

consumer credit, personnel, insurance, and other information in a manner which

is fair and equitable to the consumer, with regard to the confidentiality,

accuracy, relevancy, and proper utilization of such information in accordance

with the requirements of [the act].“ 15 U.S.C. 1681(b). A “consumer reporting

agency" is defined as "any person which, for monetary fees, dues, or on a

cooperative nonproﬁt basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports." 15 U.S.C. 1681a(f). Rebello has not established that LPS is a “consumer reporting agency,” is involved in preparing or furnishing “consumer reports” within the meaning of FCRA or that her concerns regarding password sharing in any way implicated any of the speciﬁc policies or purposes FCRA was enacted to address. 15 U.S.C. 1681(b), 1681a(d),

APPENDIX 22 (f). To the extent FCRA seeks to protect the “confidentiality” of consumer

information, Rebello has not established a “clear public policy” under FCRA

sufficient to support a wrongful termination claim under the facts and

circumstances at issue here.

H133} R.C. 1349.19(B)(1) imposes a disclosure obligation on a person who

discovers that the security of a system containing certain personal information

of Ohio residents has been breached. The disclosure is required only if

“unauthorized access and acquisition” of the personal information “causes or

reasonably is believed will cause a material risk of identity theft or other fraud.”

That provision states, in relevant part:

Any person that owns or licenses computerized data that includes personal information shall disclose any breach of the security of the system, following its discovery or notiﬁcation of the breach of the security of the system, to any resident of this state whose personal information was, or reasonably is believed to have been, accessed and acquired by an unauthorized person if the access and 1 acquisition by the unauthorized person causes or reasonably is believed will cause a material risk of identity theft or other fraud to the resident. * * *

{ 1734} Rebello has made no showing that this provision applies here or was in any way implicated by her concerns related to password sharing. In this case, there was no evidence that, as a result of password sharing, LPS’s or Chase’s security systems were “breached” as deﬁned in the statute or that any unauthorized “access and acquisition” of personal information occurred (or was likely to occur) that "cause[d] or reasonably is believed will cause a material risk

APPENDIX 23 of identity theft or other fraud.” Rebello presented no evidence that any of the

Chase customers whose information was accessed by LPS employees through password sharing was at any material risk of identity theft, fraud or any other

ﬁnancial harm as a result of that practice.

{1I35} Accordingly, we agree with the trial court that Rebello failed to establish a “clear public policy” manifested in FCRA or R.C. 1349.19 that was implicated by Rebello’s objections to password sharing or jeopardized by her termination in this case. However, we reach a contrary conclusion with respect to Rebello’s claims relating to the GLBA.

M36} The GLBA requires ﬁnancial institutions to take steps to ensure the security and conﬁdentiality of the nonpublic information of its customers.

15 U.S.C. 6801, entitled “Protection of nonpublic personal information,” provides in relevant part:

(a) Privacy obligation policy. It is the policy of the Congress that each ﬁnancial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and conﬁdentiality of those customers’ nonpublic personal information.

(1137) The GLBA also provides that, in furtherance of this policy, that certain speciﬁed government agencies and authorities

shall establish appropriate standards for the ﬁnancial institutions subject to their jurisdiction relating to administrative, technical, and physical safeguards —

APPENDIX 24 (1)‘to insure the security and conﬁdentiality of customer records and information;

(2): to protect against any anticipated threats or hazards to the security or integrity of such records; and

(3) to protect against unauthorized access to or use of such records or information which could : result in substantial harm or inconvenience to any customer.

15 U.S.C.. 6801(b).

(1I1:38} In addition to the provisions of the GLBA itself, Rebello also cites

certain guidelines promulgated under the GLBA —-— the Interagency Guidelines

Establishing Information Security Standards (“guidelines”), 12 C.F.R. part 30,

—— Appx. B which she contends manifest a clear public policy in protecting

nonpublic customer information from unauthorized access and disclosure. The

guidelines “address standards for developing and implementing administrative,

technical, and physical safeguards to protect the security, conﬁdentiality, and integrity of customer information.” Id. at (I). The guidelines apply to “customer information maintained by or on behalf of entities over which the office of the

Comptroller of the Currency has authority." Id. at (I)(A). “Customer information” includes “any record containing nonpublic personal information, as deﬁned 12 1016.3(p), about a customer, whether in paper, electronic, or other form, that is maintained by or on behalf of the national bank.” Id. at

(I)(C)(2)(e). The guidelines require banks to “implement a comprehensive written information security program that includes administrative, technical,

AFFENDIX 25 and physical safeguards,” which must be designed to, among other things: (1)

ensure the security and conﬁdentiality of customer information; (2) protect

against any anticipated threats or hazards to the security or integrity of such

information and (3) protect against unauthorized access to or use of such

information that could result in substantial harm or inconvenience to any

customer. Id. at (lI)(A)—(B). The guidelines also require banks to consider

whether other security measures, such as controls to authenticate and permit

access only to authorized individuals, controls to prevent employees from

providing customer information to unauthorized individuals, and encryption of

electronic customer information to which unauthorized individuals may have

access, are appropriate and, if so, adopt those measures. Id. at (lII)(C)(1). The

guidelines also require banks to “[r]equire its service providers by contract to

implement appropriate measuresiidesigned to meet the objectives” of the

guidelines. Id. at (III)(D)(2). “Service providers” include “any person or entity

that maintains, processes, or otherwise is permitted access to customer

information or consumer information through its provision of services directly

to the [bank]." Id. at (I)(C)(2)(g).

W39) We agree with Rebello that a clear public policy exists, based on the provisions of the GLBA, to prevent unauthorized access to and disclosure of nonpublic personal information of consumer customers, such as that at issue here.

APPENDlX 26 W40} LPS does not dispute that the GLBA and its regulations apply to

Chase and the nonpublic customer information accessed by LPS in the MSP

system. Nevertheless, LPS contends that GLBA does not support the clarity

element Rebello’s of claim because (1) the GLBA does not apply to LPS, (2)

Rebello complained only about “password sharing" and (3) Rebello’s complaints

regarding “password sharing” were based on concerns that company policies

were being violated, not that nonpublic information was being disclosed. We do

not ﬁnd these arguments to be persuasive.

H41} LPS first argues that because the GLBA requires banks to take

steps “by contract” to ensure that its service providers comply with the

requirements of the GLBA and does not directly regulate service providers, LPS

“is not subject to the GLBA” and “cannot be liable for violating a public policy in

a statute by which it is not governed.” We disagree. LPS cites no authority in

support of its contention that an employer must be found to have violated and subject to liability under the specific statute that serves as the source of the public policy before we may conclude that a clear public policy exists that has been compromised by the employer’s conduct.

H142} Moreover, LPS repeatedly acknowledged in its own documents that its activities were subject to the GLBA and that it had an obligation under the

GLBA to protect and maintain the security and confidentiality of Chase’s nonpublic customer information.

APPENDIX 27 H143} For example, l..PS’s Code of Business Conduct and Ethics states:

Employees also must ensure that they do not misuse the * * * confidential information of any otherparties. There are several US. federal and state laws that require the Company to protect and maintain the security and confidentiality of customer data. Regulators of financial institutions have also implemented numerous regulations dealing with data security in the outsourcing of data processing that involves personally identifiable financial information about a customer. If your job involves the providing of services to domestic financial institutions or you have access to customer data, you should be aware of the Company’s obligations to protect certain customer data under he Gramm~Leach-Bliley Act.

it ‘I: it

The Company has established corporate policies to protect and secure sensitive consumer and employee data. Each employee must strictly adhere to these policies and take seriously our shared responsibilities to ensure the safety and conﬁdentiality of consumer information we access while performing our jobs.

(1144) Further, Section 11 of the Master Agreement between LPS and

Chase expressly provided, in relevant part, as follows:

If Supplier receives, haves access to or process nonpublic personal information protected by the Privacy Regulations (“N_I’I”) from JP Morgan Chase & Co., Supplier will be subject to application Laws restricting collection, use, disclosure, processing and free movement of personal data (collectively, the “Privacy Regulations”). The Privacy Regulations include the Federal “Privacy of Consumer Financial Information” Regulation (12 CFR Part 30), as amended from time to time, issued pursuant to Section 504 of the Gramm- * * Leach-Bliley Act of 1999 (15 U.S.C. §6801, et seq.) *.

{1[45} LPS also argues that because Rebello’s complaints were limited to

“password sharing" and the GLBA does not prohibit ‘lpassword sharing,” it cannot be? said that any public policy manifested by the GLBA was implicated by

APPENDIX 28 Rebello’s. objections to and threats to disclose LPS’s practice of sharing

passwords to Chase. Once again, we disagree. Rebello does not contend that

there is a public policy against “password sharing’ under the GLBA or any other

state or federal law. Instead, she argues that her objections to password sharing

and threats to report LPS’s practice of password sharing to Chase implicated

public policy because they related to concerns over the unauthorized access and

disclosure of nonpublic personal information of Chase’s customers. Rebello

contends that “by objecting to sharing passwords, she [was] objecting to a

practice that threatened the confidentiality and allowed unauthorized access of

" individuals to conﬁdential nonpublic customer information. She argues that

even though there is no public policy against password sharing per se, there is

a public [policy manifested in the GLBA to protect against the unauthorized

access and disclosure of nonpublic personal information and that because LPS’s

Chase’s and anti-password sharing policies were implemented (at least in part)

to prevent the unauthorized access and disclosure of this information, dismissing

employees under circumstances like those allegedly involved in her dismissal,

i.e., for refusing to continue sharing passwords and threatening to report password sharing among LPS employees to Chase, would jeopardize that public policy.

H46} Password sharing can occur in one of two ways: (1) passwords can be shared among authorized-users or (2) passwords can be shared among

APPENDIX 29 authorized users and unauthorized users. There is no public policy against the

disclosure of nonpublic customer information to those who have been authorized

to access or use the information, provided the scope of the authorization has not

been exceeded. Where a password is shared with someone who has authority to

access the system for which the password is being used and the information is

not leaving the boundaries of the persons authorized to access it, password

sharing among such individuals would not threaten the public policy against the

unauthorized disclosureof nonpublic customer information. Where, however,

a password that permits access to nonpublic customer information is shared with

a person .who does not have authority to access that information and the

password, is, in fact, used by the person with whom it is shared to access

nonpublic consumer information, password sharing results in the unauthorized disclosure of that information, thereby implicating the public policy against unauthorized access and disclosure of nonpublic personal information of consumers. Thus, the‘ issue in this case is whether Rebello‘s objections to password sharing were akin to a complaint regarding the unauthorized access and disclosure of nonpublic consumer information. Viewing the evidence in the light most favorable to Rebello and drawing all reasonable inferences from the — evidence her favor as we must do in reviewing a trial court’s decision on a motion for directed verdict — we find that under the particular facts and circumstances in this case, it was.

APPENDIX 30 (1147) There was conflicting evidence at trial as to whether the LPS

employees who had not yet received their own tokens to access the MSP system from Chase and were using the passwords of other LPS employees to access that system (1) had been authorized by Chase to access its customers’ nonpublic information but were just awaiting the means to access the MSP system or (2) had not yet been authorized by Chase to access its customers’ nonpublic information. Curtis Larson, who managed the Chase account from 2009 to

October 2011, testified that password sharing wasnot a problem of getting the necessary authorizations from Chase for LPS employees, but simply one of connectivity:

Q. LPS believed that it didn’t have enough employees who were authorized by Chase and given a password to do all of the volume of work that had come in; correct?

A. Not exactly. They had authorization. They didn’t have connectivity. They didn’t have —— they weren't able to sign on.

Q. They didn't have passwords.

A. They had passwords.

Q. So if everybody had passwords, why were they sharing?

A. Because we couldn’t establish sign-on through their new protocols. So they weren’t able to access MSP to do their job.

Q. So it’s your testimony that each and every person who shared a password was authorized by Chase to be on that account?

APPENDIX 31 To my knowledge, the people that accessed MSP had been given, at some point, authorization through a password or user id to access MSP.

So why was there a need to share at all?

Like I say, we weren’t able to get through their sign-on protocols to successfully get access for everybody that needed

it.

H148} LaSheen Farley, another supervisor working on the Chase account, — offered similar testimony i.e., that password sharing resulted from delays in employees receiving the tokens necessary to access the MSP system and not a failure to receive the necessary authorization to access customer information from Chase:

Q. Those employees who were sharing were not authorized to access the MSP database; true?

There were authorized to access MSP. They did not have authorization at that time. They didn’t have the actual token, but they had already been authorized, meaning they went through their background checks, both from LPS and Chase. They did not have the physical token in which to access the system.

Do you remember I took your deposition, ma’am?

Yes, sir.

* * * I asked you the following question: And in essence, by sharing passwords, LPS was able to bypass the authorization process with Chase and get more people into the MSP system and allowed more people to use the non-public private information of Chase’s clients; correct? And what was your answer?

APPENDIX 32 A. Yes.

H149} Others offered contrary testimony. Rebello testified that the LPS

employees who were sharing passwords had been authorized and approved by

LPS to work on the Chase account and were “in line” to receive authorization

from Chase but that Chase had not yet “approve[d] them to be in their system."

Evans testified that when passwords were being shared among LPS employees

"that meant somebody had unauthorized access” to Chase’s nonpublic customer

information.

{TI50} Rebello testified that although her objections were phrased in terms

—— of “password sharing” and not the unauthorized access and disclosure of nonpublic customer information — in her mind, under the circumstances, there was little difference between the two:

* * * Q. Now you claim in this case that LPS’s decision to your employment was unlawful; do understand tigiéiinate you

A. Yes.

Q. And you claim that the reason it was unlawful is because you complained about password sharing; is that right?

A. Yes.

ax-*4.-_

Q.‘ You understand that there’s a difference between sharing a password and disclosing private non—public information?

APPENDIX 33 A. I understand one results from the other. I don’t understand the difference.

Well, one doesn't always result from the other, does it?

No, of course not.

Q. We could share passwords, you and I, all day long and nothing bad could happen from that; right?

A. Not necessarily. I think you're [sic] confusion‘ — you're confusing the situation though. This e-mail is very specific to not sharing passwords. Not about — says nothing about NPI. The next step would be NPI. But in this it says, do not share passwords.

Q. I just want to understand then what your claim is in the case. Your claim in this case is that you complained about password sharing; right?

A. Yes.

You didn’t complain about a specific concern that Carrie Rebello had that non-public private information would be disclosed?

A. You're absolutely correct, I complained about password sharing.

(Emphasis added.)

W51) In this case, based on the evidence presented by Rebello that LPS was regularly and systemically disregarding the password system established by Chase and allowing LPS employees who had not yet been authorized by

Chase to access its nonpublic customer information, a reasonable jury could have found that there was, in fact, no difference between Rebello objecting to

APPENDIX 34 password sharing and Rebello objecting speciﬁcally to the results of that

password sharing, i.e., the unauthorized access and disclosure of nonpublic

information to LPS employees. -The trial court erred in taking that

determination away from the jury and concluding as a matter of law that “[t]he

mere assertion relative to sharing passwords is insufficient to satisfy the clarity

element of a wrongful termination action."

H152} Although the trial court stated, as a basis for granting LPS’s motion

* * " for directed verdict, that “[t]here is no evidence that anyone‘s conﬁdential

information or identity was compromised in any fashion,” Rebello was not

required to show that any consumer identity theft had occurred or that any

consumer’s confidential information had otherwise been misappropriated to

establish the clarity and jeopardy elements of her claim. A plaintiff asserting a

claim of wrongful termination in violation of public policy is not required to show

that the conduct to which the employee objected actually resulted in the type of

harm that the public policy seeks to prevent. Furthermore, even if such a

showing were required, the unauthorized access of Chase’s customers’ nonpublic information by LPS employees in and of itself caused a harm to the privacy interests of those customers — one of the interests the GLBA seeks to protect.

H153} Because we find that the GLBA manifests a clear public policy against the unauthorized access and disclosure of the nonpublic personal information of consumers that was (1) applicable to LPS in connection with the

APPENDIX 35 work it performed on behalf of Chase and (2) allegedly implicated in Rebello's

termination in this case, we conclude that Rebello presented sufficient evidence

to satisfy the clarity element of her claim for wrongful termination in violation

of public policy. See, e.g., Collins, 73 Ohio St.3d at 71, 652 N.E.2d 653

(recognizing that even where “no actual crime” has been committed, it is

“nevertheless a violation of public policy to compel an employee to forgo his or

her legal protections or to do an act ordinarily proscribed by law”); Blackburn 1).

American Dental Ctrs., 10th Dist. Franklin No. 1 3AP-6 19, 2014-Ohio-53 29 (trial

court erred in entering summaryijudgment in favor of defendant employers, a

dentist and corporation that owned several dental offices, on employees’ claims

for wrongful discharge in violation of public policy based on public policy prohibiting retaliation against employees who reported workplace conditions

that jeopardized staff and dental patient safety); Anders U. Specialty Chem.

Resources, 121 Ohio App.3d 348, 700 N.E.2d 39 (8th Dist.1997) (plaintiff stated a claim for wrongful termination in violation of public policy where he alleged that employer terminated his employment because he refused to participate in insurance fraud or falsiﬁcation of insurance claims); Zajc, 172 Ohio App.3d 1 17,

2007-Ohio-2637, 873 N.E.2d 337 (employee allegedly terminated for refusing to ship defective aircraft parts could maintain a claim for wrongful discharge in violation of public policy).

APPENDIX 36 Jeopardy

W54) Having found a clear public policy sufficient to justify an exception to the efmployment—at-will doctrine, we must now determine whether the termination of an employee for raising objections to, refusing to participate in and threatening to disclose her employer's unauthorized access and disclosure of nonpublic information would jeopardize that public policy (the jeopardy element). This requires a showing “not just that a policy may have been violated

[as to the plaintiff] but also that the policy itself is at risk if the discharge of the employee is allowed to continue.” Zwiebel U. Plastipak Packaging, Inc., 3d Dist.

Shelby No. 17~12-20, 2013-Ohio~3785, 1[ 32, citing Langley v. Daimler Chrysler

Corp., 407 F.Supp.2d 897, 909 (N.D.Ohio 2005).

( 1l55} Analysis of the jeopardy element involves an inquiry into the existence of any alternative means of promoting the particular public policy to be vindicated by a common-law wrongful discharge claim. As the Ohio Supreme

Court explained in Wiles u. Medina Auto Parts, 96 Ohio St.3d 240,

2002-Ohio-3994, 773 N.E.2d 526:

“If the statute that establishes the public policy contains its own remedies, it is less likely that tort liability is necessary to prevent dismissals from interfering with realizing the statutory policy." 2 Perritt at 71, Section 7.26. Simply put, there is no need to recognize a common-law action for wrongful discharge if there already exists a statutory remedy that adequately protects society’s interests. * " * In that situation, the public policy expressed in the statute would not be jeopardized by the absence of a common-law wrongful-discharge action in tort because an aggrieved employee

APPENDIX 37 has an alternate means of vindicating his or her statutory rights and thereby discouraging an employer from engaging in the unlawful conduct.

1.5. “it Id. at 1[ In other words, is unnecessary to recognize a common-law claim

when remedy provisions are an essential part of the statutes upon which the

plaintiff depends for the public policy claim and when those remedies adequately protect society’s interest by discouraging the wrongful conduct.“ Leininger 11.

Pioneer Natl. Latex, 115 Ohio St.3d 311, 2007-Ohio-4921, 875 N.E.2d 36, ll 27.

{$156} The GLBA contains no statutory remedies protectingemployees who complain about, refuse to participate in and threaten to disclose an employer’s unauthorized access and disclosure of nonpublic consumer information‘ Thus, there is no existing statutory remedy that “adequately protect[s] society's interest [in] discouraging this wrongful conduct." Id. If employers were allowed to terminate employees for objecting to, refusing to participate in and threatening to disclose the unauthorized access and disclosure of nonpublic consumer information, such retaliatory practices could deter employees from reporting or taking other steps to protect nonpublic consumer information from unauthorized access and disclosure. We find that without a common-law tort for wrongful discharge under these circumstances, the clear public policy against unauthorized access and disclosure of nonpublic consumer information would be compromised. See, e.g., Armstrong u. Trans-Service Logistics Inc., 5th Dist.

Coshocton No. O4CA015, 2005-Ohio-2723, 62. 1] Accordingly, Rebello satisﬁed

APPENDIX 38 the jeopardy element of her claim for wrongful termination in violation of public

policy.

(1157) For the reasons set forth above, the trial court erred in granting a

directed verdict in favor of LPS on Rebello’s claim for wrongful discharge in

violation of public policy. Rebello’s assignment of error is sustained. This case

is remanded to the trial court for further proceedings consistent with this

opinion.

H58} Judgment reversed; case remanded to the trial court.

It is ordered that appellant recover from appellees the costs herein taxed.

The court ﬁnds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 7 of the Rules of Appellate Procedure.

/1 E i<1‘K‘f} LAdtIER, PRESIDING JUDGE

FILED AND JOURNALIZED EIL EN T. G LAGHER, J., and pg}; App_R‘ 22(c) ANITA LASTER MAYS, J CONCUR .,

APR 0 9 2015

cuvmom couw CLERK on E moi APPEALS ay

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APPENDIX 40 IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

Carrie Rebello

Plaintiff, CASE ti ‘cv»12—7s537o

V5.

L.P.S., Inc., et al

JOURNAL ENTRY

At the close of the plaintiff's case the defense moved for a directed verdict

pursuant to Rule 50 of the Ohio Rules of Civil Procedure. This being a wrongful termination case there are four elements that must be proven by the plaintiff. These four elements are clarity, jeopardy, causation, and the emp|oyer’s lack of a legitimate business justification for a dismissal. This court construed the evidence most strongly in favor of the plaintiffand finds that reasonable minds could come to but one conclusion upon the evidence submitted.

This court finds that the plaintiff failed to articulate a specific, clear public

policy and failed to prove that any public policy was jeopardized by her termination. The mere assertion relative to sharing passwords is insufficient to satisfy the clarity element of a wrongful termination action. There is no evidence

before this court that anyone‘s confidential information or identity was compromised in any fashion. There is no evidence that the p|aintiff’s termination jeopardized any public policy.

The plaintiff failed to assert and prove a clear public policy derived from the state or federal constitution, a statute or administrative regulation or the

common law. By her own admission the plaintiff did not seek redress for her termination due to age, gender, race, sexual orientation, disability, or under the "Whistleblower” law. The complaint alleges but on cause of action, that being a wrongful discharge in violation of public policy. Having failed as to the elements

APPENDIX 41 of clarity and causation this court will not address causation or whether or not the

employer lacked a legitimate business justification for the termination.

in its ruling the court referred to and utilized the applicable law set forth and discussed in Painter 3”‘, v. 70 Ohio St. 377; Greeley v,_i\/liajn1iV_a|iey‘ 3'd, 49 Ohio St. 228; Dohme v. ELmlAmerica 130 Ohio St.3'd, 158; O.R.C.

1349.19; the Graham»g_ac_h-ijiiigr Act; the Fair Credit Reporting Act' and the gig

Debt Collection Practices Act.

Judgment for defendants, plaintiff to costs. it is so ordered; July 18, tra bﬂar rm...

Judge Michael J. Corriga r tired , (sittingdgy assignment).

RECEIVED FOR F|LlNG

JUL 2 1 2014 ~~ C VAMGGA CDUN ~

APPENDIX 42