MIRACLE, APPELLEE, v. OHIO DEPARTMENT OF VETERANS SERVICES ET AL., APPELLANTS.
No. 2018-0562
SUPREME COURT OF OHIO
August 20, 2019
2019-Ohio-3308
Slip Opinion No. 2019-Ohio-3308. Submitted April 23, 2019. APPEAL from the Court of Appeals for Franklin County, No. 16AP-885, 2018-Ohio-819.
[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
[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
{¶ 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
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 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
{¶ 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
{¶ 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:
- A Greeley tort is not available under
R.C. 124.27 or124.56 and, more generally, statutes about public employment ordinarily should not support Greeley claims. - 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
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:
{¶ 14}
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
{¶ 16} We nevertheless conclude that
{¶ 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
{¶ 18} By contrast, an appointing authority may remove a probationary employee for “unsatisfactory service.”
{¶ 19} We must also presume that by using the word “service” in
{¶ 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.
{¶ 21} The evolution of
{¶ 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.
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
{¶ 26}
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}
{¶ 28} We therefore agree with the state that a Greeley tort remedy is not available on the basis of
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
{¶ 30} Under the plain language of
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
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
{¶ 34} In its opinion, the Tenth District Court of Appeals focused on whether Miracle had satisfied the jeopardy element in regard to his
{¶ 35} The record in this case indicates, however, that the state made no such concession or admission. In its motion
{¶ 36} Further, in the state’s brief before the Tenth District, it did not concede or admit that
{¶ 37} Miracle argues in his brief here that because the state conceded that
{¶ 38} Thus, because the state never conceded or admitted that Miracle satisfied the clarity element as to his
DONNELLY, J., concurring.
{¶ 39} I join the majority opinion, including its holding that the particular statutes at issue here—
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.
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.