776 N.E.2d 119 | Ohio Ct. App. | 2002
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *99
{¶ 2} Krickler, at age seventeen, began working for Brooklyn as a part-time employee in 1974, became a full time employee in 1976, and in 1983 was given the position of personnel/records clerk by then mayor John Coyne. Although she did not take an examination for the position, Coyne assured her that the job was in the classified civil service and would be protected in the event of a change in administration. This view was echoed by her predecessor in the position, as well as Brooklyn's then law director.
{¶ 3} Mayor Patton was elected in November 1999, and when he took office on January 1, 2000, he notified Krickler, along with several other city employees, that they were dismissed as part of the change in mayoral administration. She grieved the firing to the Brooklyn Civil Service Commission, which ruled that she was not a classified employee under R.C.
{¶ 4} Krickler filed a complaint in the common pleas court alleging causes of action for age discrimination, promissory estoppel, termination in violation of public policy, and intentional infliction of emotional distress. A fifth count stated, Plaintiff hereby appeals the ruling of the City of Brooklyn Civil Service Commissions [sic] dated March 2, 2000, finding Plaintiff Pamela Krickler was `not a classified employee' at the time of her discharge. Krickler attached a copy of the Commission's ruling to her complaint, but did not allege that she had notified the commission of her appeal, and the Commission did not notify the common pleas court of the appeal.
{¶ 5} The judge dismissed the fifth count sua sponte, stating that he lacked subject matter jurisdiction because Krickler failed to perfect her appeal under R.C.
{¶ 6} "I. The trial court committed prejudicial error when it granted defendants' motion for summary judgment.
{¶ 7} We review the grant of summary judgment de novo, using the same standard as the trial judge.1 Krickler claims she presented sufficient evidence to sustain causes of action for promissory estoppel, wrongful discharge, *101 and intentional infliction of emotional distress,2 and showed that a reasonable jury could find in her favor. We will address each cause of action separately.
{¶ 9} She is correct that her status as a classified or unclassified employee is governed by R.C.
{¶ 10} R.C.
{¶ 11} The municipality may classify positions by charter or by ordinance,9 but nothing in Brooklyn's charter gives the mayor the power to create classified positions unilaterally. Krickler's argument concerning the charter's limits on the commission's authority is misplaced; the relevant question is whether the charter grants the mayor authority to create classified positions, and it does not.
{¶ 12} We do not dispute that the commission's authority to make an initial determination must be exercised in accordance with R.C. Chapter 124 or other relevant law, or that Krickler has a right to appeal the commission's decision finding she was not a classified employee. We find only that, as between it and the mayor, the commission had authority to interpret the law and to determine whether her position was classified, and the mayor did not. Therefore, her promissory estoppel claim fails.
{¶ 14} She first claims her firing violated a public policy concerning her right to retire with immediate pension benefits after thirty years of service. She had been a full-time employee of Brooklyn for nearly twenty-four years, nearing the thirty-year threshold that would allow her to take early retirement and enjoy pension benefits immediately. While Brooklyn claims that there is no public policy concerning the right to retire after thirty years of civil service, we disagree. The benefit is part of the law, and we do not doubt that a discharge for the purpose of denying Krickler her thirty years of service would be actionable. *103 The difficulty with her claim, however, is the third element; other than her length of service, nothing in the record allows the inference that she was fired in order to deny early retirement benefits.
{¶ 15} Krickler argues that her length of service is sufficient to create a jury question as to causation, and to require Brooklyn to articulate a legitimate business purpose in order to rebut the inference that she was fired to prevent her reaching thirty years of service. We disagree, because her length of service, standing alone, is insufficient to sustain this element. While a bright-line is unnecessary, we are not willing to find that an employee who comes within six years of early retirement age is prima facie immune from discharge.
{¶ 16} She asserts two more public policy reasons in support of her claim, both based on her relationship with Mayor Patton prior to his election. While he was employed as Brooklyn's service director in Mayor Coyne's administration, she discovered that he allowed employees under his supervision to keep alcohol in a secret refrigerator at a service garage, and that employees drank alcohol while on duty. Krickler reported this to Mayor Coyne, who fired Patton, although he re-hired him shortly thereafter. She also claims that she was aware that Patton drank alcohol while employed in Coyne's administration, and referred to an incident in which "he returned from the City landfill in an intoxicated condition and had been covered with dirt and fill material from apparently having fallen in the landfill." She also stated that she had once discovered that Patton had slept overnight in the Brooklyn library, "and had to confront him about this situation as well."
{¶ 17} Krickler claims she was fired because of these incidents, and that her discharge jeopardizes public policies that prohibit drinking on the job and encourage employee whistleblowing. The whistleblowing statute, however, imposes strict requirements upon those seeking protection for making reports against their employers or co-employees. In Kulch, the Ohio Supreme Court recognized a common-law cause of action for wrongful discharge stemming from the violation of R.C.
{¶ 18} She also asserts a policy against workplace alcohol use, however, and we find this claim cognizable pursuant to the recent majority opinion in Pytlinski v. Brocar Prods., Inc.,14 which clarified Kulch by finding that a *104 wrongful discharge suit is premised on the existence of retaliatory conduct in violation of public policy, and not on whether an employee's complaints have met filing requirements.15 Although Kulch's "full compliance" formulation stated a narrow view of public policy for common-law wrongful discharge suits, Pytlinski states a broader interpretation that eases some of Kulch's arguably draconian implications. While Kulch might have been interpreted to deny a claim based on the workplace alcohol policy by finding it an inappropriate attempt to avoid compliance with the whistleblower statute, this interpretation is no longer viable. Under Pytlinski, Krickler can maintain her suit based on the workplace alcohol policy, because "Ohio public policy favoring workplace safety is an independent basis upon which a cause of action for wrongful discharge in violation of public policy may be prosecuted."16
{¶ 20} In order to maintain this claim, however, she must show not only that Mayor Patton's conduct was outrageous, but that such conduct caused her severe emotional distress.17 Even if there is sufficient evidence from which a jury could find the conduct outrageous, Krickler failed to show that she suffered a serious emotional injury. Her affidavit stated only that "[t]he loss of my job from the City of Brooklyn, plus the manner in which notice of it was delivered to me, has caused me severe emotional distress and has affected my ability to conduct my usual daily affairs."
{¶ 21} Although expert evidence showing the existence of a serious emotional injury may not be required in every case, such evidence appears necessary in all but the most exceptional circumstances.18 Whatever the character *105 and quality of evidence necessary, it is apparent that a plaintiff's affidavit claiming severe emotional injury in conclusory terms is insufficient proof of such injury.19 Therefore, she cannot sustain her claim of intentional infliction of emotional distress. The first assignment of error is overruled in part and sustained in part, as Krickler produced enough evidence to survive summary judgment on her claim of wrongful discharge in violation of the policy against workplace safety.
{¶ 22} The second assignment states:
{¶ 23} "II. The trial court committed prejudicial error when it dismissed plaintiff's appeal from the decision of the civil service commission."
{¶ 24} Krickler claims that she followed the correct procedures to appeal the civil service commission's March 2, 2000 ruling, that she proved that her notice of appeal was filed with the commission when she opposed summary judgment, and that it was error to find that she failed to file a notice of appeal with the commission. Appeals of municipal civil service commission decisions are governed by R.C. Chapters 2505 and 2506.20 We first note that Krickler apparently is somewhat confused as to whether the provisions of those chapters apply, or if she was required to comply with R.C. Chapter 119. For clarity's sake, we note that the commission is not an "agency" for purposes of R.C. Chapter 119, and therefore the only applicable statutory provisions for appeal are found in R.C. Chapters 2505 and 2506.21
{¶ 25} Although Brooklyn contends that Krickler's notice was insufficient to perfect her appeal under R.C.
Judgment affirmed in part, reversed in part, and cause remanded.
It is ordered that each party bear its own costs herein taxed.
This court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
DIANE KARPINSKI, J., concurs.
JAMES D. SWEENEY, P.J., concurs in judgment only.
Concurrence Opinion
{¶ 26} I concur in judgment only and cite to concurring opinions in State v. Thomas (May 13, 1999), Cuyahoga App. Nos. 72536 and 72537, and Garnett v. Garnett (Sept. 16, 1999), Cuyahoga App. No. 75225, at 3-4, and Loc.App.R. 22(C) of this Court which states that: "Opinions of the Court will not identify or make reference by proper name to the trial judge, magistrate * * * unless such reference is essential to clarify or explain the role of such person in the course of said proceedings. (Eff. July 25, 2000).