Opinion

Miracle v. Ohio Dept. of Veterans Servs. (Slip Opinion)

  • 2019 Ohio 3308
Court
Ohio Supreme Court
Filed
Aug 20, 2019
Status
Published
On the bench
French, J.
Cited by
16 cases
Authority
More cited than 63.9%

The opinion

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Miracle v. Ohio Dept. of Veterans Servs., Slip Opinion No. 2019-Ohio-3308.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2019-OHIO-3308

MIRACLE, APPELLEE, v. OHIO DEPARTMENT OF VETERANS SERVICES ET AL.,

APPELLANTS.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Miracle v. Ohio Dept. of Veterans Servs., Slip Opinion No.

2019-Ohio-3308.]

Torts—Wrongful discharge—Neither R.C. 124.27(B) nor R.C. 124.56 expresses a

clear public policy that would provide basis for a claim under Greeley v.

Miami Valley Maintenance Contrs., Inc., by civil-service employees

terminated during their probationary period—Court of appeals’ judgment

reversed and Court of Claims’ order dismissing former employee’s

complaint reinstated.

(No. 2018-0562—Submitted April 23, 2019—Decided August 20, 2019.)

APPEAL from the Court of Appeals for Franklin County, No. 16AP-885,

2018-Ohio-819.

_____________________

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FRENCH, J.

{¶ 1} In Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d

228, 551 N.E.2d 981 (1990), we recognized a public-policy exception to the

employment-at-will doctrine and held that an employee may maintain a common-

law tort action when the employee has been discharged or disciplined for a reason

prohibited by statute, id. at paragraph one of the syllabus. This discretionary appeal

requires us to determine whether Ohio’s civil-service laws express a public policy

that would give rise to Greeley claims by public employees terminated during their

probationary period.

{¶ 2} Appellee, James Miracle, filed a complaint alleging that his former

employer, the Ohio Department of Veterans Services, wrongfully terminated him

during his probationary period at the direction of the governor’s office. The Tenth

District Court of Appeals unanimously reversed the trial court’s dismissal of

Miracle’s complaint under Civ.R. 12(B)(6). Appellants, the department and the

governor’s office (collectively, “the state”), have appealed the Tenth District’s

judgment.

{¶ 3} We conclude that R.C. 124.27(B) and 124.56, the civil-service

statutes invoked by Miracle, do not express a clear public policy providing the basis

for a wrongful-discharge claim by a probationary employee. We therefore reverse

the judgment of the court of appeals and reinstate the trial court’s order dismissing

Miracle’s complaint.

FACTS AND PROCEDURAL BACKGROUND

{¶ 4} Miracle’s claims arise from the termination of his employment as an

administrative officer and facilities manager of the veterans’ home located in

Sandusky, Ohio. As alleged in Miracle’s complaint, prior to his hiring in 2015,

Miracle had advised the superintendent of the Sandusky Veterans Home, known as

the Sandusky Domiciliary, and a deputy director of the Department of Veterans

Services of his adverse job history at the Ohio Department of Corrections. Miracle

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had previously worked as a building-construction superintendent at the Mansfield

Correctional Institution. In July 2013, an inmate escaped from the Mansfield

facility. After an investigation of the incident, the Department of Corrections

terminated Miracle for failing to secure tools and for falsifying tool-inventory

documents. Pending Miracle’s appeal of his termination before the State Personnel

Board of Review (“SPBR”) and after the negotiation of a settlement, the

Department of Corrections reinstated Miracle to a position at a different

correctional institution.

{¶ 5} According to Miracle, the superintendent of the Sandusky

Domiciliary assured Miracle that his adverse job history would not pose a problem.

Miracle began working in February 2015 as a probationary employee of the

Department of Veterans Affairs. At his June 9, 2015 performance review, Miracle

received ratings of “meets expectations” or “exceeds expectations” in each

category. Six days later, during Miracle’s probationary period, the department’s

human-resources director informed Miracle that the department was terminating

his employment because it “was moving in a different direction.” The department

declined to provide any additional information. Miracle later learned that Jai

Chabria, a senior advisor to Governor John Kasich, had directed the superintendent

to terminate Miracle because of negative press about Miracle’s alleged involvement

in the Mansfield inmate escape.

{¶ 6} Following his termination, Miracle filed a four-count complaint in the

Ohio Court of Claims against the Department of Veterans Services and the

governor’s office. Count One alleges that Miracle’s termination violated the public

policy articulated in R.C. 124.27(B) in favor of retaining probationary employees

who have satisfactorily performed their duties. Count Two asserts a claim for

wrongful discharge in violation of the public policy articulated in R.C. 124.56. That

statute provides for an investigation and possible removal of an appointing

authority who has appointed, removed or suspended an employee in violation of

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R.C. Chapter 124. Count Three asserts wrongful discharge in violation of the

procedural protections guaranteed by R.C. 124.34 and the Fourteenth Amendment

to the United States Constitution. Count Four asks for a determination that Chabria

is not entitled to immunity under R.C. 9.86.

{¶ 7} The state filed a motion to dismiss Miracle’s complaint under Civ.R.

12(B)(6) for failure to state a claim. The trial court granted the motion.

{¶ 8} On appeal, the Tenth District Court of Appeals reversed and

remanded, reinstating the wrongful-discharge claims Miracle asserted in Counts

One and Two based on R.C. 124.27(B) and 124.56, respectively. The court also

reinstated Miracle’s request for an immunity determination in Count Four, which

the trial court had dismissed for lack of an underlying state-law claim. But the court

determined that Miracle had abandoned Count Three’s wrongful-discharge claim

for failure to assert any related assignment of error.

{¶ 9} We accepted the state’s discretionary appeal, 153 Ohio St.3d 1402,

2018-Ohio-2380, 100 N.E.3d 422, which presents two propositions of law:

1. A Greeley tort is not available under R.C. 124.27 or

124.56 and, more generally, statutes about public employment

ordinarily should not support Greeley claims.

2. Only the employer is subject to a Greeley claim.

{¶ 10} Miracle has not filed a cross-appeal challenging the court of appeals’

holding that he abandoned his wrongful-discharge claim based on procedural due

process. The only claims at issue in this appeal are Miracle’s wrongful-discharge

claims based on R.C. 124.27(B) and 124.56 and his request for an immunity

determination.

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ANALYSIS

{¶ 11} The traditional rule in Ohio is that a general or indefinite hiring is

terminable at the will of either the employer or the employee, for any cause or no

cause. Collins v. Rizkana, 73 Ohio St.3d 65, 67, 652 N.E.2d 653 (1995). The tort

of wrongful discharge in violation of public policy is an exception to this default

rule. We first recognized the tort in 1990, holding that “[p]ublic 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.” Greeley, 49 Ohio St.3d

228, 551 N.E.2d 981, at paragraph one of the syllabus. Since Greeley, we have

recognized that sources of public policy other than statutes may provide the basis

for a wrongful-discharge claim. Painter v. Graley, 70 Ohio St.3d 377, 639 N.E.2d

51 (1994), paragraph three of the syllabus.

{¶ 12} To succeed on a claim for wrongful discharge in violation of public

policy, a plaintiff must establish four elements: (1) that a clear public policy existed

and was manifested either in a state or federal constitution, statute or administrative

regulation or in the common law (“the clarity element”), (2) that dismissing

employees under circumstances like those involved in the plaintiff’s dismissal

would jeopardize the public policy (“the jeopardy element”), (3) the plaintiff’s

dismissal was motivated by conduct related to the public policy

(“the causation element”), and (4) the employer lacked an overriding legitimate

business justification for the dismissal (“the overriding-justification element”).

Collins at 69-70. The clarity and jeopardy elements involve legal questions that the

court determines. Id. at 70. The causation and overriding-justification elements

involve factual issues that the finder of fact decides. Id.

The clarity element

{¶ 13} Miracle invokes two statutes as the basis for his wrongful-discharge

claims: R.C. 124.27(B) and 124.56. To determine whether these statutes express a

clear public policy against termination under the circumstances alleged by Miracle,

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our analysis focuses on the intent of the General Assembly. Sutton v. Tomco

Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938, ¶ 11. Our

examination of the language and purposes of the relevant statutes governing civil-

service employment leads us to conclude that neither R.C. 124.27(B) nor R.C.

124.56 expresses a clear public policy that would provide the basis for a Greeley

claim by civil-service employees terminated during their probationary period.

R.C. 124.27(B)

{¶ 14} R.C. 124.27(B) governs the appointment and removal of

probationary civil-service employees and provides:

No appointment or promotion [to the classified civil service] is final

until the appointee has satisfactorily served the probationary period.

If the service of the probationary employee is unsatisfactory, the

employee may be removed or reduced at any time during the

probationary period. If the appointing authority decides to remove

a probationary employee in the service of the state, the appointing

authority shall communicate the removal to the director. A

probationary employee duly removed or reduced in position for

unsatisfactory service does not have the right to appeal the removal

or reduction under section 124.34 of the Revised Code.

{¶ 15} Miracle argues that R.C. 124.27(B) expresses a clear public policy

against the termination of a probationary employee for reasons other than

unsatisfactory performance. The state violated that policy, Miracle contends, by

terminating him despite his having received satisfactory performance reviews. We

accept the factual allegations in Miracle’s complaint as true and afford him all

reasonable inferences from those allegations, as we must when reviewing a trial

court’s decision granting a Civ.R. 12(B)(6) motion to dismiss. Volbers-Klarich v.

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Middletown Mgt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434,

¶ 12.

{¶ 16} We nevertheless conclude that R.C. 124.27(B) and Ohio’s civil-

service scheme as a whole do not express a clear public policy that would support

recognizing a wrongful-discharge tort for probationary employees. The General

Assembly has spoken clearly: probationary employees do not enjoy the same rights

and protections afforded to tenured civil servants. Accepting Miracle’s argument

would contradict this legislative design by treating probationary civil-service

employees the same as, if not better than, tenured civil-service employees.

{¶ 17} First, while Ohio law imposes specific restrictions on the removal

from the civil service of tenured employees, it leaves the decision to remove a

probationary employee to the discretion of the appointing authority. Tenured civil-

service employees may not be removed except for one of the reasons specified in

R.C. 124.34(A), including “incompetency,” “inefficiency,” “neglect of duty,” and

“unsatisfactory performance.” “Unsatisfactory performance” includes the failure

to meet established work standards, goals, and competencies, the failure to

adequately perform duties, and the failure to complete a training plan or a

performance-improvement plan. Ohio Adm.Code 123:1-31-05.

{¶ 18} By contrast, an appointing authority may remove a probationary

employee for “unsatisfactory service.” R.C. 124.27(B). Neither statute nor rule

defines “unsatisfactory service.” But the ordinary meaning of the word “service”

connotes acting “in the interest or under the direction of others” or “for the benefit

of another.” Black’s Law Dictionary 1576 (10th Ed.2014). Here, even if we accept

that Miracle satisfactorily performed his workplace duties, R.C. 124.27(B) confers

discretion on the appointing authority to remove a probationary employee whose

continued employment would not benefit or advance the interests of the agency.

{¶ 19} We must also presume that by using the word “service” in R.C.

124.27(B) but “performance” in R.C. 124.34(A), the legislature intended to impose

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different legal standards for the termination of probationary and tenured employees.

See State v. Herbert, 49 Ohio St.2d 88, 113, 358 N.E.2d 1090 (1976) (“the use of

different language gives rise to a presumption that different meanings were

intended”). The General Assembly did not intend for the performance-based

grounds for termination prescribed in R.C. 124.34(A) to govern the termination of

probationary employees. The text of R.C. 124.27(B) does not support Miracle’s

argument that that statute expresses a public policy disfavoring the termination of

probationary employees for reasons other than unsatisfactory performance.

{¶ 20} The General Assembly has also drawn distinctions between the

posttermination remedies for probationary and tenured civil-service employees.

Tenured employees have the right to appeal their removal to the SPBR. R.C.

124.34(B). Probationary employees do not. R.C. 124.27(B). But the SPBR has

jurisdiction only to affirm, disaffirm or modify decisions of the appointing

authority. R.C. 124.34(B). Because of this statutory limit on the SPBR’s

jurisdiction, certain remedies, like an award of back pay, may not be available to a

tenured employee in an SPBR appeal. State ex rel. Weiss v. Indus. Comm., 65 Ohio

St.3d 470, 476, 605 N.E.2d 37 (1992). We would be turning R.C. Chapter 124 on

its head if we were to recognize a full-blown tort remedy for probationary

employees.

{¶ 21} The evolution of R.C. 124.27 (formerly R.C. 143.20) also reinforces

our conclusion that R.C. 124.27(B) expresses no public policy in favor of retaining

probationary employees. Since the statute’s origin in 1913, the General Assembly

has enacted changes expanding the removal authority of employers while reducing

the procedural protections guaranteed to probationary employees. Originally, the

statute allowed the removal of an employee for unsatisfactory service at the end of

the probationary period, with the approval of the SPBR (formerly, the Civil Service

Commission). G.C. 486-13, Am.S.B. No. 7, 103 Ohio Laws 704-705; see State ex

rel. Artman v. McDonough, 132 Ohio St. 47, 4 N.E.2d 982 (1936), paragraph two

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of the syllabus. If the appointing authority sought to remove an employee during

the probationary period, the employee enjoyed the procedural protections of G.C.

486-17, the predecessor to the SPBR appeal process. G.C. 486-13; Walton v.

Montgomery Cty. Welfare Dept., 69 Ohio St.2d 58, 60, 430 N.E.2d 930 (1982).

{¶ 22} In 1961, the General Assembly enacted a two-tier scheme under

which a probationary employee enjoyed the full appeal rights of a tenured employee

during the first half of the probationary period but could be removed during the

second half. Former R.C. 143.20, Am.Sub.H.B. No. 126, 129 Ohio Law 1079,

1080-1081; see Walton at 61. Later that same decade, the General Assembly also

eliminated the requirement of SPBR approval of the removal of probationary

employees. Former R.C. 143.20, Am.Sub.S.B. No. 297, 133 Ohio Laws, Part I,

811, 862.

{¶ 23} In 1998, the General Assembly took away the right to appeal to the

SPBR and authorized the appointing authority to remove an employee at any time

during the probationary period for unsatisfactory service. Former 124.27,

Am.Sub.S.B. No. 144, 147 Ohio Laws, Part IV, 8122, 8156; State ex rel. Rose v.

Ohio Dept. of Rehab. & Corr., 91 Ohio St.3d 453, 457, 746 N.E.2d 1103 (2001).

Recognizing a Greeley claim here would contravene the General Assembly’s

unambiguous intent, as expressed over decades of statutory amendments, to expand

the appointing authority’s power to remove probationary employees.

{¶ 24} For these reasons, we conclude that R.C. 124.27(B) does not express

a clear public policy that would support a Greeley claim by a probationary civil-

service employee. And because Miracle cannot satisfy the clarity element of his

wrongful-discharge claim based on R.C. 124.27(B), we need not address whether

his termination jeopardizes any public policy expressed in the statute. See Painter,

70 Ohio St.3d at 385, 639 N.E.2d 51 (dismissing Greeley claim for lack of clear

public policy without addressing jeopardy element).

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R.C. 124.56

{¶ 25} We turn next to Miracle’s second wrongful-discharge claim.

Miracle contends that the state terminated him in violation of the public policy

articulated in R.C. 124.56, which prohibits the abuse of power by any person with

authority to appoint or remove a civil-service employee. We disagree and conclude

that R.C. 124.56 does not express any public policy that would provide the basis

for a wrongful-discharge tort claim.

{¶ 26} R.C. 124.56 states:

When the [SPBR] or a municipal or civil service township

civil service commission has reason to believe that any officer,

board, commission, head of a department, or person having the

power of appointment, layoff, suspension, or removal, has abused

such power by making an appointment, layoff, reduction,

suspension, or removal of an employee under his or their jurisdiction

in violation of this chapter of the Revised Code, the board or

commission shall make an investigation, and if it finds that a

violation of this chapter, or the intent and spirit of this chapter has

occurred, it shall make a report to the governor, * * * who may

remove forthwith such guilty officer, board, commission, head of

department, or person.

{¶ 27} R.C. 124.56 authorizes the SPBR to investigate officials and to

recommend the removal of officials who abuse their powers in violation of R.C.

Chapter 124. But it does not confer any substantive rights on employees or impose

any enforceable duties on employers apart from the rights and duties established

elsewhere in R.C. Chapter 124. We have previously acknowledged that R.C.

124.56 “says nothing about an adjudication of individual employee rights” and

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offers no relief to the employee aside from the investigation and removal of the

offending official. State ex rel. Carver v. Hull, 70 Ohio St.3d 570, 575, 639 N.E.2d

1175 (1994). The statute provides a mechanism to enforce violations of R.C.

124.27 and the rest of R.C. Chapter 124. It does not express a clear public policy,

apart from the General Assembly’s already comprehensive scheme in R.C. Chapter

124, that would support recognizing a wrongful-termination tort claim.

{¶ 28} We therefore agree with the state that a Greeley tort remedy is not

available on the basis of R.C. 124.27(B) or 124.56 and that the Court of Claims

correctly dismissed Counts One and Two of Miracle’s complaint. While the state’s

first proposition of law asserts more broadly that statutes concerning public

employment generally should not support Greeley claims, we address only the

statutes that Miracle invoked as the basis for his wrongful-discharge claims.

The parties’ remaining arguments

R.C. 9.86 immunity determination

{¶ 29} Miracle’s remaining claim asks for a determination from the Ohio

Court of Claims that Jai Chabria, then a senior advisor to Governor John Kasich, is

not entitled to immunity under R.C. 9.86 for his alleged role in directing Miracle’s

termination. R.C. 9.86 generally immunizes state officers and employees from

personal liability for civil actions arising from the performance of their duties,

“unless the officer’s or employee’s actions were manifestly outside the scope of his

employment or official responsibilities, or unless the officer or employee acted with

malicious purpose, in bad faith, or in a wanton or reckless manner.” R.C. 9.86; see

also Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208, 857

N.E.2d 573, ¶ 13.

{¶ 30} Under the plain language of R.C. 9.86, the Court of Claims has

authority to decide immunity questions only in “any civil action that arises under

the law of this state.” See Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d

862 (1992) (R.C. 9.86 applies only to state-law claims and not to federal claims);

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Cotten v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 18AP-240, 2018-

Ohio-3392, ¶ 12 (same). Given our conclusion that Miracle failed to state any

wrongful-discharge claim arising under state law, the Court of Claims has no basis

upon which to conduct an immunity determination. Therefore, the Court of Claims

correctly dismissed Count Four of Miracle’s complaint.

Greeley claims against nonemployers

{¶ 31} Finally, the state argues that the court of appeals wrongly allowed

Miracle to pursue his Greeley claims against the governor’s office, an entity that

was not his employer. Only the plaintiff’s employer, the state asserts as its second

proposition of law, is subject to a Greeley claim. Because we have concluded that

Miracle has not stated a Greeley claim as a matter of law, we need not address here

whether his complaint properly named the governor’s office as a defendant.

CONCLUSION

{¶ 32} We conclude that R.C. 124.27(B) and 124.56 do not express a clear

public policy that provides the basis for a wrongful-discharge claim for civil-service

employees terminated during their probationary period. Accordingly, we reverse

the judgment of the court of appeals and reinstate the trial court’s order dismissing

Miracle’s complaint.

Judgment reversed

and trial-court order reinstated.

O’CONNOR, C.J., and DEWINE, J., concur.

FISCHER, J., concurs, with an opinion.

DONNELLY, J., concurs, with an opinion.

KENNEDY and STEWART, JJ., concur in judgment only.

_________________

FISCHER, J., concurring.

{¶ 33} I join the majority opinion. I write separately to address any

potential concerns regarding the court’s rejection of appellee James Miracle’s R.C.

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124.56 wrongful-discharge claim by concluding that the claim fails on the clarity

element.

{¶ 34} In its opinion, the Tenth District Court of Appeals focused on

whether Miracle had satisfied the jeopardy element in regard to his R.C. 124.56

claim. 2018-Ohio-819, 108 N.E.3d 220, ¶ 13, 17. The court asserted that the state

had conceded for purposes of its motion to dismiss that R.C. 124.56 expresses a

clear public policy supporting Miracle’s claim. Id. at ¶ 12 (“defendants admitted

that R.C. 124.56 expressed a clear public policy ‘prohibiting the abuse of power by

“any officer, board, commission, head of a department, or person” who possesses

the power to remove a civil service employee’ ”).

{¶ 35} The record in this case indicates, however, that the state made no

such concession or admission. In its motion to dismiss, the state asserted that all of

Miracle’s claims for wrongful discharge in violation of public policy “fail at the

very first element: identification of a public policy allegedly violated by his

employer, the Department.” Later in the motion, the state argued that even if R.C.

124.56 established a public policy, Miracle’s claim would fail on the jeopardy

element. Miracle acknowledged the state’s position in his response to the state’s

motion to dismiss, in which he noted that “[d]efendants argue that ORC § 124.56,

which prohibits the abuse of power by persons having the power to remove civil

servants, does not provide a clear public policy sufficient to support Plaintiff’s

wrongful discharge claim.”

{¶ 36} Further, in the state’s brief before the Tenth District, it did not

concede or admit that R.C. 124.56 expresses a clear public policy supporting

Miracle’s wrongful-discharge claim. Instead, the state argued that even if one were

to assume that the statute expresses a clear public policy, the Court of Claims

properly dismissed Miracle’s claim because he had failed to satisfy the jeopardy

element. Thus, the state never did concede or admit that that Miracle had

established a clear public policy as to R.C. 124.56 in support of his claim.

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{¶ 37} Miracle argues in his brief here that because the state conceded that

R.C. 124.56 articulates a clear public policy, the clarity element in regard to that

claim is not at issue in this appeal. The state, however, never made any concession,

and, in fact, it has argued in both its memorandum in support of jurisdiction and in

its merit brief that Miracle had failed to satisfy the clarity element.

{¶ 38} Thus, because the state never conceded or admitted that Miracle

satisfied the clarity element as to his R.C. 124.56 claim and because this issue has

been raised and briefed in this appeal, the majority opinion properly disposes of

Miracle’s R.C. 124.56 wrongful-discharge claim by determining that he failed to

show that the statute expresses a clear public policy.

_________________

DONNELLY, J., concurring.

{¶ 39} I join the majority opinion, including its holding that the particular

statutes at issue here—R.C. 124.27(B) and 124.56—do not directly express a public

policy that supports appellee James Miracle’s wrongful-discharge claim pursuant

to Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551

N.E.2d 981 (1990). I write separately to stress that our decision today does not

reach the state’s sweeping assertion that Greeley is generally inapplicable to any

and all statutes related to public employment. Therefore, I believe that the majority

opinion should not be read as foreclosing the possibility that a probationary public

employee could pursue a wrongful-discharge tort claim based on an employer’s

violation of some other statute contained in the scheme governing public

employment.

_________________

Adams & Liming, L.L.C., and Sharon Cason-Adams, for appellee.

Dave Yost, Ohio Attorney General, Benjamin M. Flowers, Deputy

Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and Lee Ann Rabe,

Assistant Attorney General, for appellants.

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The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro, urging

affirmance for amicus curiae Ohio Employment Lawyers Association.

Willis Spangler Starling and Jason E. Starling, urging affirmance for amicus

curiae Ohio Association for Justice.

_________________

15

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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