# Provens v. Stark Cty. Bd. of Mental Retardation & Developmental Disabilities

> Ohio Supreme Court · July 28, 1992 · 1992 Ohio 35

URL: https://www.frixlaw.com/law-library/cases/11147375

## Case

- **Court:** Ohio Supreme Court
- **Decided:** July 28, 1992
- **Citations:** 1992 Ohio 35
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Holmes, J.
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

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Provens, Appellant, v. Stark County Board of Mental
Retardation & Developmental Disabilities, Appellee.
[Cite as Provens v. Stark Cty. Bd. of Mental Retardation &
Developmental Disabilities (1992), Ohio St.3d .]
Employer and employee -- Public employees do not have a private
cause of civil action against employer to redress alleged
violations by employer of policies embodied in the Ohio
Constitution, when.
Public employees do not have a private cause of civil action
against their employer to redress alleged violations by
their employer of policies embodied in the Ohio
Constitution when it is determined that there are other
reasonably satisfactory remedies provided by statutory
enactment and administrative process.
(No. 91-1412 -- Submitted May 12, 1992 -- Decided July 29,
1992.)
Appeal from the Court of Appeals for Stark County, No.
CA-8269.
This is an appeal of a judgment of the court of appeals
affirming a decision of the trial court granting summary
judgment to the defendant-appellee, Stark County Board of
Mental Retardation & Developmental Disabilities ("board"). The
necessary facts of this case are that the plaintiff-appellant,
Patricia Provens, a teacher employed in the defendant's school
facility, filed a complaint in the Court of Common Pleas of
Stark County against the defendant. In her complaint the
plaintiff alleged that the board, and its supervisors, had
harassed, discriminated against, and disciplined her, all as a
result of her having criticized the operation and practices of
the board, and having filed discrimination charges against the
board with both the Ohio Civil Rights Commission and the Equal
Opportunity Commission. Further, plaintiff alleged that the
board retaliated against her because she had initiated an
assault and battery lawsuit against administrative employees of
the board.
The plaintiff further alleged in her complaint that her
activities in speaking out against the board's policies, and in
filing the lawsuit and the administrative charges, were
protected by the Ohio Constitution.1 She also alleged that the
board, in violation of her constitutional rights, harassed her,
unlawfully searched her desk, and singled her out for
discriminatory treatment, making it extremely difficult for her
to fully and faithfully discharge her duties and obligations as
an employee of the board. At a deposition conducted on
February 15 and 16, 1990, the plaintiff testified at length
regarding the allegations contained in her complaint, all of
which were basically centered on her claims of being "harassed"
by her employer.2
The plaintiff sought injunctive relief, as well as
compensatory and punitive damages. The board timely answered
the complaint, denying all the plaintiff's claims of
harassment, denying that any acts of the board had violated the
plaintiff's Ohio constitutional rights, and offering the
affirmative defense that the plaintiff's complaint failed to
state a claim for which relief could be granted.
The board thereafter filed its motion for summary judgment
on the ground that there is no private cause of action for
civil damages for the violation of the plaintiff's Ohio
constitutional rights as alleged in her complaint. The board
additionally set forth its opinion that assuming a cause of
action for civil damages for a violation of Section 11, Article
I of the Ohio Constitution exists, the plaintiff was not
entitled to relief since her activities were not "protected"
under the Ohio Constitution. Further, the board asserted that
the plaintiff had failed to state a claim for intentional
infliction of emotional distress since the alleged conduct was
not extreme or outrageous. Moreover, in its supportive
memorandum, the board argued that punitive damages cannot be
awarded against a public entity such as the board.
The trial court granted summary judgment in favor of the
board on the ground that "a private cause of action under the
Ohio Constitution does not exist," citing Bush v. Lucas (1983),
462 U.S. 367. 103 S.Ct. 2404; 76 L.Ed.2d 648, and held that it
would be inappropriate for the court to create a new judicial
remedy. The trial court did not determine the issue of whether
the plaintiff's activities constituted "protected activity."
Upon appeal, the Court of Appeals for Stark County
affirmed the judgment of the trial court, also citing Bush v.
Lucas, supra.
This cause is now before the court pursuant to the
allowance of a motion to certify the record.

Green, Haines, Sgambati, Murphy & Macala Co., L.P.A.,
Ronald G. Macala and Randall Vehar, for appellant.
Day, Ketterer, Raley, Wright & Rybolt Co., L.P.A., J. Sean
Keenan and Jill Freshley Otto, for appellee.

Holmes, J. The plaintiff-appellant's complaint alleged a
violation of her state constitutional rights. Although she did
not specify in her complaint what rights were allegedly
violated, the thrust of the allegations indicate that Section
11, Article I of the Ohio Constitution was the major basis of
plaintiff's claims. This section provides:
"Every citizen may freely speak, write, and publish his
sentiments on all subjects, being responsible for the abuse of
the right; and no law shall be passed to restrain or abridge
the liberty of speech, or of the press. * * *"
This constitutional provision does not set forth an
accompanying cause of action for a violation of the right of
free speech. And, parenthetically, no other constitutional
provision relied upon by the appellant provides an individual
cause of action for an alleged violation of such constitutional
right. Additionally, the Ohio General Assembly has not
authorized such an action. Further, this court has never
pronounced it to be the common law of this state that a public
employee has a private cause of action against her employer to
redress alleged violations by her employer of policies embodied
in Ohio's Constitution. This is precisely the new common law
the appellant seeks this court to pronounce, even if other
administrative remedies (adequate or inadequate) might also be
available. Appellant argues that any such alternative remedies
only supplement, and do not replace, a plaintiff's right to
bring a civil action to enforce constitutional rights.
In resolving the issues presented, we must be mindful of
some general principles regarding the exercise of judicial
discretion. When rights are invaded or violated, the law
generally provides a remedy. When rights are not expressly
provided by statutory law, courts may in given instances fill
the void, looking to any legislative policy or statutory scheme
within the area of concern. Even though this court is
empowered to grant relief not expressly provided by the
legislature, and may grant relief by creating a new remedy, we
shall refrain from doing so where other statutory provisions
and administrative procedures provide meaningful remedies.
The United States Supreme Court has addressed its judicial
role in the type of case presently before us on a number of
occasions. One of the more recent cases is that of Bush v.
Lucas (1983), 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648,
where the court considered whether a private claim for damages
could be stated by a federal employee for an alleged violation
of his First Amendment rights. In Bush, the plaintiff, a
federal aerospace engineer, filed a complaint against his
employer, the George C. Marshall Space Flight Center, to
recover for alleged defamation and retaliatory demotion. He
alleged that his demotion was the result of his having made
statements to the news media which were highly critical of the
center.
Justice Stevens, writing for the court, assumed for
purposes of the court's decision that the federal employee's
First Amendment rights had been violated by adverse personnel
action. The court also assumed that the civil service remedies
available to him were not as effective as a tort-damages remedy
and would not fully compensate him for the harm he had
allegedly suffered. Additionally, the court acknowledged that
Congress had not expressly authorized the damages remedy sought
by the petitioner, nor had Congress expressly precluded the
creation of such remedy. The court then proceeded to review
all the factors relevant to the petitioner's claim that a right
of private action should be made available for the violation of
his constitutional rights. In this regard the court observed:
"Given the history of the development of civil service
remedies and the comprehensive nature of the remedies currently
available, it is clear that the question we confront today is
quite different from the typical remedial issue confronted by a
common-law court. The question is not what remedy the court
should provide for a wrong that would otherwise go
unredressed. It is whether an elaborate remedial system that
has been constructed step by step, with careful attention to
conflicting policy considerations, should be augmented by the
creation of a new judicial remedy for the constitutional
violation at issue. * * *" 462 U.S. at 388, 103 S.Ct. at
2416-2417, 76 L.Ed.2d at 664.
The Bush court in essence concluded that it must make a
remedial determination, paying particular heed to any special
factors counseling hesitation before authorizing a new remedy.
Accordingly, the court stated that:
"Petitioner asks us to authorize a new nonstatutory
damages remedy for federal employees whose First Amendment
rights are violated by their superiors. Because such claims
arise out of an employment relationship that is governed by
comprehensive procedural and substantive provisions giving
meaningful remedies against the United States, we conclude that
it would be inappropriate for us to supplement that regulatory
scheme with a new judicial remedy." 462 U.S. at 368, 103 S.Ct.
at 2406, 76 L.Ed.2d at 651.
The United States Supreme Court has generally exercised
extreme caution in reviewing cases asserting a "constitutional
tort" theory cause of action. Such actions have been held
viable against federal officials for a violation of Fourth
Amendment rights (an illegal search and seizure by federal
narcotics agents), Bivens v. Six Unknown Fed. Narcotics Agents
(1971), 403 U.S. 388, 91 S.Ct. 1999; 29 L.Ed.2d 619; for a
violation of Fifth Amendment rights (sex discrimination against
a congressional employee), Davis v. Passman (1979), 442 U.S.
228, 99 S.Ct. 2264, 60 L.Ed.2d 846; and for a violation of
Eighth Amendment rights (failure to provide proper medical
attention to a federal inmate), Carlson v. Green (1980), 446
U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15. In all these cases,
sometimes referred to as "Bivens actions," the Supreme Court
found no "special factors counselling hesitation in the absence
of affirmative action by Congress," Bivens, 403 U.S. at 396, 91
S.Ct. at 2005, 29 L.Ed.2d at 626; no explicit statutory
prohibition against the relief sought, and no exclusive
statutory alternative remedy, Davis, 442 U.S. at 246-247, 99
S.Ct. at 2278, 60 L.Ed.2d at 863; Carlson, 446 U.S. at 18-20,
100 S.Ct. at 1471-1472, 64 L.Ed.2d at 23-25.
Various state courts presented with the legal issue of the
validity of an individual's cause of action for damages for an
alleged violation of constitutionally protected rights have
followed the rationale of the Bush decision. The plaintiff in
Walt v. State (Alaska 1988), 751 P.2d 1345, for example, was a
state employee subject to the General Governmental Unit
Collective Bargaining Agreement. Plaintiff, development
specialist for the Department of Commerce and Economic
Development, was discharged as a result of remarks made at a
conference at which the plaintiff represented that department.
The plaintiff pursued a grievance through his collective
bargaining representative, and was ultimately ordered
reinstated. Although the grievant was returned to work, a
decision was soon made to eliminate funding for his position.
The plaintiff in Walt initiated legal action against the
state and against several of his superiors at the department,
asserting, inter alia, a claim under Section 1983, Title 42,
U.S.Code for violation of his free speech and substantive due
process rights, a claim for a violation of state statutory and
personnel rules (based on an adverse employment action not
related to merit), a tort claim for negligent and intentional
infliction of emotional distress, and a public policy tort
based on alleged retaliatory elimination of funding for his
position. Summary judgment in favor of the state was entered
by the trial court and ultimately upheld by the Supreme Court
of Alaska.
Of particular relevance to the instant case was the Alaska
Supreme Court's disposition of plaintiff's tort claim implied
from a violation of public policy. The court cited the United
States Supreme Court decision in Bush, noting that the court in
that case found a cause of action should not be implied for
violations of the First Amendment rights of a federal employee
because of the comprehensive civil service remedies provided by
Congress. The court in Walt held:
"We think Bush is analogous to the instant case. Here
elaborate provisions were made available to Walt under the
provisions of the CBA [Collective Bargaining Agreement], PERA
[Public Employment Relations Act], and, to the extent
applicable, the provisions of Alaska's State Personnel Act and
Personnel Rules. Taken together the foregoing provide a
comprehensive scheme of employee rights and remedies.
Recognition of an independent tort for violation of public
policy would in our view conflict with the established law of
public employee-employer labor relations in Alaska." Id. at
1353, fn. 16.
See, also, Melley v. Gillette Corp. (1985), 19 Mass.App.
511, 475 N.E.2d 1227; Makovi v. Sherwin-Williams Co. (1989),
316 Md. 603, 561 A.2d 179; Cox v. United Technologies, Essex
Group, Inc. (1986), 240 Kan. 95, 727 P.2d 456; and Phillips v.
Babcock & Wilcox (1986), 349 Pa.Super. 351, 503 A.2d 36.
Appellant argues that the Bush rationale should not be
applied to this case because the alternative remedies available
to the plaintiff are not adequate and meaningful, and in any
event the remedy she seeks should be in addition to other
remedies provided by statute.
In reviewing the Ohio statutory law which could provide
the plaintiff redress for her complaints, we look to R.C.
Chapter 4112, creating the Civil Rights Commission ("CRC"),
R.C. Chapter 4117, establishing the State Employment Relations
Board ("SERB"), and R.C. Chapter 124, providing for the State
Personnel Board of Review ("SPBR"). The latter chapter dealing
with the SPBR provides little remedy for the plaintiff since
she is employed pursuant to a collective bargaining agreement,
and since R.C. 4117.10(A) divests the SPBR of jurisdiction
where such an agreement exists.
However, R.C. Chapter 4112 does provide the plaintiff with
some meaningful available relief. R.C. 4112.02 provides that:
"It shall be an unlawful discriminatory practice: (A) For any
employer, because of the race, color, religion, sex, natural
origin, handicap, age, or ancestry of any person, to discharge
without just cause, to refuse to hire, or otherwise to
discriminate against that person with respect to hire, tenure,
terms, conditions, or privileges of employment, or any matter
directly or indirectly related to employment."
After complaint and hearing, if the commission finds that
the respondent has engaged in any unlawful discriminatory
practice, the commission "shall issue and, subject to the
provisions of Chapter 119. of the Revised Code, cause to be
served on such respondent an order requiring such respondent to
cease and desist from such unlawful discriminatory practice and
to take such further affirmative or other action as will
effectuate the purposes of sections 4112.01 to 4112.08 of the
Revised Code, including, but not limited to, hiring,
reinstatement, or upgrading of employees with, or without, back
pay * * *." R.C. 4112.05(G).
As further remedy for a person claiming civil rights
violations, R.C. 4112.06(A) provides that "[a]ny complainant,
or respondent claiming to be aggrieved by a final order of the
commission, including a refusal to issue a complaint, may
obtain judicial review thereof, and the commission may obtain
an order of the court for the enforcement of its final orders
* * *."
The record before the trial court shows that the plaintiff
had filed four complaints with the CRC against the defendant
board. The first was filed on March 1, 1986, charging that:
"I. I am a Black person. Since Oct. 28, 1985, I have
been constantly harassed in all aspects of my job. On Feb. 7,
1986, I was physically assaulted by my Supervisor, Sue Givens.
"II. Sue Givens, Caucasian Supervisor and Assistant
Principal, refuses to meet with me to resolve accusations made
against me.
"III. I believe I have been unlawfully discriminated
against due to my race, Black, because (a) * * * I am the only
Black teacher."
The second complaint filed by the plaintiff in the CRC was
dated May 8, 1986. The complaint primarily charged unlawful
discrimination because of the plaintiff's race, and
specifically charged that she was being harassed because of her
race and being treated unfairly, i.e., Caucasian teachers were
not similarly treated.
The third complaint was filed on September 26, 1986, and
charged that the plaintiff was retaliated against because she
had filed the complaints against the board.
The fourth complaint, filed on April 17, 1989, again
charged that plaintiff was being discriminated against because
of her race, and more specifically that she had been suspended
for three days by her director. Plaintiff stated that "I
believe that my handicap [depression] and race was [sic] the
determining factors in his decision to suspend me and that all
other reasons are pretextual."
In reviewing the instant record, it may be reasonably
concluded that a significant basis for the allegations
contained in plaintiff's complaint were harassment claims with
racial connotations. Therefore, we conclude that the plaintiff
could, and did, pursue some of her available remedies through
R.C. Chapter 4112 for the claimed unlawful activities of her
employer.
The plaintiff, as a public employee, also has remedies
available for bringing charges and grievances against her
employer through the provisions of R.C. Chapter 4117, the
Public Employees' Bargaining Act, and SERB. First, this
chapter grants public employees the specific right to join, or
not to join, any employee organization of their own choosing
(R.C. 4117.03[A][1]), and authorizes representation by such
employee organization (R.C. 4117.03[A][3]), collective
bargaining for wages, hours, terms and other conditions of
employment, and entering into collective bargaining agreements
(R.C. 4117.03[A][4]), such as was entered into here by the
defendant board and the plaintiff's employee representative
organization, Stark County Educators' Association for the
Training of Retarded Persons.
After negotiations between the plaintiff's employee
bargaining organization and the board, a collective bargaining
agreement was entered into, which at Article XXIII provides for
a "Grievance Procedure," whereby a member of the bargaining
unit may allege that there has been a breach,
misinterpretation, or improper application of the agreement.
Plaintiff's civil action here, in addition to having some
civil rights aspects, is a result of her complaints concerning
allegedly unfair treatment with respect to such items as the
discipline taken against her by her employer, the suitability
of her job-related physical facilities, the availability of
equipment, job performance evaluations, the requirement of
medical verification for sick leave, and the content of her
employee personnel file. Clearly, all these subjects are
treated by the collective bargaining agreement.3 In her
deposition testimony, the plaintiff acknowledged that she had
filed a number of grievances under the collective bargaining
agreement during the course of her employment and that she had
prevailed only in some of these grievances. So we may
reasonably conclude that most of these employment-related
complaints may be covered by the grievance procedures that are
set forth within the collective bargaining agreement.
While the remedies provided the plaintiff here through the
administrative process of a hearing before the CRC and through
the arbitration process under the collective bargaining
agreement do vary from the remedies that might be available
through a civil proceeding, such difference shall not be
controlling where, in the totality, it may be concluded that
the public employee has been provided sufficiently fair and
comprehensive remedies. In Bush, the United States Supreme
Court clearly evidenced that alternative avenues providing a
less than complete remedy for the wrong suffered were not
sufficient to warrant the recognition of a cause of action for
damages arising from a constitutional violation. 462 U.S. at
388, 103 S.Ct. at 2417, 76 L.Ed. 2d at 664.
The United States Supreme Court in Bush found that the
question whether to augment a remedial scheme carefully
constructed by Congress did not turn merely on a determination
that existing remedies failed to provide complete relief.
Instead, the court asserted that the decision to create a
Bivens-style remedy in those circumstances turned on a careful
evaluation of relevant policy considerations. The court gave
special deference to Congress' ability to weigh the policy
considerations relevant to a determination of whether to create
a remedy for a harm suffered, and, in the end, deferred to
Congress' superior expertise, "convinced that Congress [was] in
a better position to decide whether or not the public interest
would be served by creating" a Bivens-style remedy in the
case. Bush, 462 U.S. at 390, 103 S.Ct. at 2417, 76 L.Ed.2d at
665.
In like manner, it is not incumbent upon this court to
engage in the type of comparative analysis of the relative
merits of various remedies that is invited by appellant.
Rather, the more appropriate course for this court is to defer
to the legislative process of weighing conflicting policy
considerations and creating certain administrative bodies and
processes for providing remedies for public employees such as
appellant.
We hold, therefore, that public employees do not have a
private cause of civil action against their employer to redress
alleged violations by their employer of policies embodied in
the Ohio Constitution when it is determined that there are
other reasonably satisfactory remedies provided by statutory
enactment and administrative process.
Finally, the appellant argues that the lower court here
should be reversed upon the authority of Greeley v. Miami
Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551
N.E.2d 981, wherein this court recognized a cause of action for
wrongful discharge in violation of public policy. However, the
issue presented in Greeley is not directly on point with the
issue presented here. The narrow issue in that case was
whether an employee discharged in violation of R.C.
3113.213(D), prohibiting an employer from discharging or
disciplining an employee on the basis of a wage withholding
order, could maintain a wrongful discharge action where the
statute did not expressly authorize such an action. The court
limited its holding to a public policy enunciated in a statute,
and not the Ohio Constitution. Reasoning that the legislature
could not have intended to leave an employee discharged in
violation of such a statute without an effective remedy, a
majority of this court held "that public policy warrants an
exception to the employment-at-will doctrine when an employee
is discharged or disciplined for a reason which is prohibited
by statute." 49 Ohio St.3d at 234, 551 N.E.2d at 986.
The facts and issues in Greeley are distinctly dissimilar
from those presented in this case, and are accordingly not
controlling.
Concluding, we hold that the courts below properly decided
that there was no private constitutional remedy for the
plaintiff-appellant's claims in that the Ohio Constitution
itself does not provide for a civil damage remedy. Further, in
that there are rather extensive legislative and regulatory
schemes providing for the bringing of complaints and charges
emanating from civil rights violations, and legislative and
regulatory schemes governing employment relationships, and in
this regard, the presence here of a collective bargaining
agreement with grievance procedures, the plaintiff has
sufficiently broad and inclusive remedies for her alleged
wrongs.
For all the above reasons, the judgment of the court of
appeals is hereby affirmed.
Judgment affirmed.
Moyer, C.J., Sweeney, Wright and H. Brown JJ., concur.
Resnick, J., concurs in the syllabus and judgment.
Douglas, J., concurs in judgment only.
FOOTNOTES:
1 Although the specific Ohio constitutional provisions
which were alleged to have been violated were not specifically
set forth within the complaint, the briefs of both parties
herein allude to Section 11, Article I, the right of free
speech. Also, the appellant in her brief in this court argues
that she had also relied upon Sections 1, 2, 3, 14 and 16 of
Article I of the Ohio Constitution, which respectively provide
protections regarding the right to freedom, life, liberty,
happiness and safety and the protection of property; the equal
protection and benefit clause; the freedom of assembly and
grievance clause; the search and seizure clause; and the due
process and the open courts clause.
2 Among the specific incidents of harassment cited by the
plaintiff-appellant in her deposition were:
1. She has been accused by her supervisors of not
performing her job.
2. She was watched by her supervisors, and was told by
supervisors that they were watching her and would "get" her if
she was out of her classroom.
3. She was spoken to by her supervisors about being absent
from her assigned classroom, was asked "[w]hy were you out,
what were you doing?" and was advised, "[y]ou shouldn't be out
of your classroom."
4. She was told that if she failed to attend meetings, the
supervisor would "get" her for that.
5. Her job performance evaluations have been "low."
6. She has received criticism for her failure to complete
paper work in a timely fashion.
7. Requests for additional assistance with her class have
been denied.
8. She writes memos and they are not addressed by her
director. Appellant, for example, authored at least four
memoranda complaining of students being sent to her class with
"dirty faces"; those memoranda, she contends, were ignored.
Similarly, Provens testified that memoranda complaining of the
size of her classroom did not result in the action desired.
9. She was singled out for unduly harsh treatment when she
was recommended by her supervisor for -- but apparently did not
receive -- disciplinary action when a student in her care fell
from a "potty" chair to the floor.
10. Satisfactory action was not taken when another
employee allegedly assaulted her. Provens pursued civil action
in that instance and the matter has since been resolved out of
court.
11. Provens believes that she was harassed or
discriminated against by the board's superintendent, who
apparently issued unfavorable rulings in some of the
appellant's many grievances.
12. The board decided to honor the request of a student's
parents that the student not be placed in appellant's
classroom, for the stated reason that the parents did not
desire their child to have a black teacher.
13. Provens was removed from a "rotating" classroom to a
"self-contained" classroom "where you don't mix with people
[other instructors] at all."
14. On the occasion of Black History Month, she took
offense at the suggestion by her supervisor that displaying the
slogan "We shall overcome" was an effort to intimidate another
of her supervisors.
15. The inclusion in her personnel file of complaints
lodged against her.
16. She believes a supervisor made an attempt to go
through her desk.
17. Certain of her supervisors do not engage appellant in
friendly conversations, as they do with other staff members.
Her colleagues, as well, tend to shun appellant; her continuous
complaints to appellee, she claims, set her "apart."
3 See, e.g., Section 2, Article XI, "Corrective Action"
(providing that "[n]o employee shall be reduced in pay, * * *
suspended, discharged or removed except for just cause" and
that "no other form of disciplinary action will be taken
against any employee except for just cause"); Section 3,
Article XI, "Facilities"; Article XII,"Evaluation Procedure";
Article XIII, "Personnel Files" (granting employees the
opportunity to review personnel files and to submit memoranda
in rebuttal to any article included in the file with which the
employee takes exception); and Section 1, Article XVI, "Staff
Absences" -- "Reporting Off Sick."
Douglas, J., concurring in judgment only. I concur in
the judgment of the majority. Appellant is a member of a
bargaining unit with a valid enforceable collective bargaining
agreement in place. Article XXIII of the agreement provides
for a grievance procedure. An employee has no more right to
ignore a collective bargaining agreement than does an
employer. I would affirm the judgment of the court of appeals
on that basis.

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