Miracle v. Ohio Dept. of Veterans Servs. (Slip Opinion) , 2019 Ohio 3308 ( 2019 )

[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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SUPREME COURT OF OHIO
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.
_________________
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