Update: On August 20, 2019, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

“If 124.27 supposedly makes all probationary employees at-will, then why did the legislature bother mentioning unsatisfactory employees in there?”

Justice Donnelly, to the Deputy State Solicitor

“Aren’t you asking us to give more rights to probationary employees than a regular employee would have?”

Justice DeWine, to Miracle’s counsel

On April 23, 2019, the Supreme Court of Ohio heard oral argument in James Miracle v. Ohio Department of Veterans’ Services and Office of the Governor, 2018-0562. At issue in this case is whether R.C. 124.27(B) or R.C. 124.56 can support Greeley claims for wrongful discharge in violation of public policy.

Case Background

After being terminated from the Ohio Department of Rehabilitation and Correction following an inmate escape at the Mansfield prison, James Miracle was offered a job with the Ohio Department of Veterans Services (“ODVS”). Miracle began employment with ODVS as a probationary employee in February 2015. At the time he was hired, he told his supervisors what had happened in his past position, and was assured this would not be a problem. In early June of 2015, Miracle received his probationary review. He received a “meets expectations” or “exceeds expectations” evaluation in all categories. On June 15, 2015, ODVS terminated him. Miracle was told he was being fired because the ODVS was “moving in a different direction.” However Miracle later learned that ODVS fired him at the direction of a Senior Advisor to the Governor, because of the bad press surrounding Miracle’s hiring.

Miracle sued ODVS and the Office of the Governor alleging that he was wrongfully discharged in violation of public policy derived from R.C. 124.27(B) and R.C. 124.56. Miracle also alleged that he was wrongfully discharged in violation of R.C. 124.34 and the public policy derived from the Fourteenth Amendment of the U.S. Constitution. ODVS and the Office of the Governor filed a motion to dismiss Miracle’s case, which was granted by the Ohio Court of Claims. Miracle appealed.

The Appeal

In a unanimous decision, the Tenth District Court of Appeals reversed the Court of Claims’ dismissal and remanded the case for further proceedings. The Tenth District found that Miracle’s complaint sufficiently stated that R.C. 124.27(B), the Probation Statute, established a public policy against the discharge of public employees who provide satisfactory service during the probationary period, and thus dismissal was improper.

The Tenth District also found that the Court of Claims erred when finding that Miracle did not meet the jeopardy element of wrongful discharge in violation of public policy arising out of R.C. 124.56, the Investigation Statute. On this point, the Tenth District explained that the proper inquiry is whether the discharge of probationary civil service employees who provide satisfactory service would jeopardize the clear public policy against the abuse of the power to remove employees.   Finally, the appeals court found that Miracle had abandoned his claim for wrongful discharge based on R.C. 124.34 and the Fourteenth Amendment to the United States Constitution.

Key Statutes and Precedent

R.C. 124.27(B) (The Probation Statute) (Appointments in classified civil service shall be for a probationary period. If the service of the probationary employee is unsatisfactory, the employee may be removed at any time during the probationary period. If duly removed, the probationary employee has no right to appeal.)

R.C. 124.56 (The Investigation Statute)(If an officer or person having power of appointment and removal abuses such power in violation of R.C. Chapter 124, then the state personnel board of review shall make an investigation. If the board finds that a violation of Chapter 124, or the intent and spirit of this chapter has occurred, it shall make a report to the governor.)

Perritt, The Future of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie? (1989), 58 U.Cin.L.Rev. 397

Greeley v Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d 981 (1990) (recognizing an exception to the employment-at-will doctrine by holding that at-will employee may maintain a cause of action in tort for wrongful discharge when the employee is terminated in violation of a clearly expressed public policy.)

Collins v. Rizkana, 73 Ohio St.3d 65, 652 N.E.2d 308 (1995) (In order to establish a claim for wrongful termination in violation of Ohio public policy, the employee must prove (1) a clear public policy exists and is manifested in a state or federal constitution, statute, or administrative regulation, or in the common law (the clarity element); (2) the employee’s dismissal would jeopardize that public policy (the jeopardy element); (3) the employee’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).)

Dohme v. Eurand Am., Inc, 2011–Ohio–4609 (“To satisfy the clarity element of a claim of wrongful discharge in violation of public policy, a terminated employee must articulate a clear public policy by citation of specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law.” (syllabus))

Sutton v. Tomco Machining, Inc., 2011-Ohio-2723 ( “In cases where the right and remedy are part of the same statute that is the sole source of the public policy opposing the discharge, the test for determining the jeopardy element is whether the remedy provisions adequately protect society’s interest by discouraging the wrongful conduct.”)

Appellants’ Propositions of Law Accepted for Review

Number One

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.

Number Two

Only the employer is subject to a Greeley claim.

At Oral Argument

Arguing Counsel

Michael J. Hendershot, Chief Deputy Solicitor, Office of the Attorney General, Columbus, for Appellants Ohio Department of Veterans’ Services and Office of the Governor.

Sharon Cason-Adams, Adams & Liming LLC, Columbus, for Appellee James Miracle.

Ohio Department of Veterans’ Services and Office of the Governor’s Argument

Mr. Miracle cannot establish a clear public policy that would support his attempt to bring a Greeley tort claim. The Probation Statute is an employer-empowering statute, not an employer-restricting statute like those enabling successful Greeley claims.

The requisite clarity element for a Greeley tort has always been focused on the intent of the General Assembly. Here, the text, structure, and history of the Probation Statute show a very conscious legislative decision to treat probationary employees like Mr. Miracle differently from tenured employees. The statute for tenured employees uses performance rather than service criteria. Tenured employees must be given a statement of reasons for termination, which is not true of probationary employees and tenured employees have a right of appeal to the State Personnel Board of Review which is not true for probationary employees.

Mr. Miracle asks to be treated the same as or better than a tenured employee.  All of Mr. Miracle’s employment reviews talk about performance.  The language in R.C. 124.27 speaks of “unsatisfactory service” which is different from unsatisfactory performance.  “Unsatisfactory performance” is the language for tenured employees, and that’s part of the designed difference between probationary and tenured employees. “Performance” criteria is something that is relevant to a tenured employee, but “service” is a much broader concept. Service is what the head of the agency believes furthers the mission of the agency. In the judgment of the agency head, is that person, while on probation, the right fit for that job, which includes a much broader swath than performance.  Here, while those hiring him knew of his history with the Department of Rehabilitation and Correction, what they did not know was the negative publicity that hire would bring to the Department of Veteran’s Services.

The Probation Statute sets Mr. Miracle’s status as being like that of an at-will employee. And he does not point to any other statute that changes that status or gives him the ability to challenge the agency head’s decision that he is not the right fit for that agency and that job. The purpose of the probationary period is to allow the agency head discretion over whatever he or she thinks serves the mission of the agency.

The Probation Statute gives the employer the ability to terminate the employee at any time—words of expansiveness and breadth. It also gives no right of appeal, in comparison with tenured employees. The text, structure and the history all demonstrate the legislative intent to treat these employment categories differently.

Finally, if the Court concludes there is a clear public policy established by the Probation statute, the jeopardy element would come into play.  But any such policy would not be jeopardized because a mandamus remedy would then be available to the employee.

Miracle’s Argument

When Mr. Miracle was hired by the Department of Veterans’ Services, he went to great pains to be sure that everyone knew about his history at the Department of Rehabilitation and Correction. One week after Mr. Miracle received his probation performance review, which encompasses all aspects of performance including attitude, demeanor, and performance of duties, he was terminated, despite having received “meets or exceeds expectations” in all aspects of his performance. He was terminated upon orders from the governor’s office because his ongoing employment was deemed “politically embarrassing” for the Governor. This flies in the face of long-established clear Ohio public policy.

The public policy emanating from R.C. 124.27 is that probationary civil servants who are satisfactorily performing the duties of their position should not be terminated. This public policy serves the best interest of Ohio taxpayers who are served by our agencies, it served the veterans in this case, it serves the agencies themselves for not having to spend more money to train new employees, and it serves the probationary employees themselves. Public policy also emanates from R.C. 124.56, and that is the public policy against the abuse of the power of removal. Public policy may be derived from the common law, rules and regulations, and from statutes. It is not just confined to statutes containing prohibitions.

Mr. Miracle disagrees that there is a difference between performance and service. What he received was a review of his performance in all aspects including his attitude and his representation of himself before the public. If the legislature had intended for all employees in their probationary period to be subject to termination for any or no reason, they could have just left the term “unsatisfactory” out of the Probation Statute.

Do we want state employees to accept the risk of a new position knowing that he or she might be terminated just as an at-will employee may be terminated regardless of whether he or she can do the job? It’s in the public’s interest to keep employees who are doing a good job. A probationary employee who is performing satisfactory service shouldn’t be allowed to be fired. This case was decided on a 12(B)(6) motion. Mr. Miracle would still need to prove his case.

What Was On Their Minds

Miracle’s Performance and His History

Is it incorrect that Mr. Miracle’s reports on progress and how well he was adapting to his job and his job performance didn’t indicate it was not a good fit, asked Chief Justice O’Connor? Was what happened to him at the Department of Rehabilitation and Correction known before he was hired? Those who made the hiring decision knew? The Chief also talked about the undesirable attention Mr. Miracle’s past with the Department of Rehabilitation and Correction brought to his new position. Was it illegal to fire Mr. Miracle, she asked, noting that there wasn’t a fine to pay or any action to be taken against the employer. Later, she added that it was her understanding that Mr. Miracle was doing a satisfactory job, but that the reason for his termination was not statutorily illegal. He was fired for political reasons. His hiring became a political embarrassment, and because the powers involved did not want to suffer the consequences of public embarrassment, Mr. Miracle was terminated.

The Probation Statute

If R.C. 124.27 supposedly makes all probationary employees at-will, then why did the legislature bother mentioning unsatisfactory employees in the statute, asked Justice Donnelly? The probationary process protects the employers from the appellate process that would exist for tenured employees?

How do we reconcile the language of the probationary employee provision, asked Justice Stewart? Why have anything?

The Fate of Probationary Employees

Under this scheme and under the state’s argument, can the employer terminate a probationary employee for any reason, asked Justice Donnelly?  Let’s say the governor discovers that a probationary employee worked for the governor’s opponent in the previous campaign, and the governor doesn’t like that. Can that employee be terminated for that reason? The ultimate purpose of the probationary period is to give the employer time to assess that employee, noted Justice Donnelly. The whole system is based on merit, and is supposed to eliminate political influence in the hiring process. So why would any employer want to terminate a satisfactory employee during that period as Mr. Miracle apparently was? If a satisfactory probationary employee had grounds to believe his or her termination was based on something illegal, would he or she be able to use mandamus to pursue the appellate process just as a tenured employee would?

If the legislature wanted to provide protections to probationary employees they could have done so, right, asked Justice DeWine? They could have given the right to appeal, which they did for non-probationary employees, but not for probationary employees. This case isn’t a kind of one-off, he noted, adding that this is a very comprehensive statute about probation and civil service and what that means, probably more so than almost anything the Court has looked at in this area.

Had Mr. Miracle gotten past the probationary period could he have been fired for the same reason, asked Justice Stewart?

What Exactly Is Against Public Policy Here. What Rule of Law Does Miracle Seek?

Is Mr. Miracle asking the Court to hold that it against public policy to fire any satisfactory civil service employee or that it is against public policy to fire a satisfactory probationary civil service employee for political reasons, asked Justice Donnelly?

Is Mr. Miracle asking the Court to hold that persons on probation with satisfactory reports cannot be fired for political reasons, asked Justice Fischer? Is that what Mr. Miracle wants us to hold? What statute would that uphold? Couldn’t the legislature have included that, had it wished to do so? Don’t throw somebody out because they bring disrepute to the agency?

Can probationary employees be terminated for any reason that is not statutorily protected, asked Justice Stewart?

If a probationary employee who is performing satisfactorily cannot be fired for political reasons, how can “political reasons” be defined, asked Justice French? How far does that go?  If the public policy Mr. Miracle urges is that anybody who is doing a satisfactory job can’t be fired, that’s one possible public policy.  But he also seems to be arguing that such an employee cannot be fired for political reasons. If that is Mr. Miracle’s public policy, what does that mean?

If it is Mr. Miracle’s position that an employee who is performing satisfactorily while on probation can’t be terminated, what happens if he commits a crime outside his duties with the state, asked Chief Justice O’Connor? Could he be terminated?

Is the public policy abuse of power, asked Justice DeWine? Anytime anyone thinks someone abused their power they file a lawsuit in Ohio? For wrongful termination?

How it Looks from the Bleachers

To Professor Emerita Bettman

Unlike the cold bench in the Iacovelli case which was argued right ahead of this one, this bench was very hot, but I think Miracle has a much more uphill struggle than House, the terminated employee in that case did.

There is no question that Miracle got a raw deal here. It apparently was undisputed that he was performing satisfactorily on his new job.  But I doubt that he is going to “wring” (in Mr. Hendershot’s words) a Greeley tort out of the Probation statute.  I don’t think there is any chance at all the Court will hold that a probationary employee who is performing satisfactorily during the probationary period cannot be fired for political reasons. (Remember the ultimate fate of Ms. Painter in Painter v. Graley? She was an unclassified civil servant who was fired for running for a political office.  And although that case dramatically broadened the landscape of the sources of public policy to support a Greeley tort, her firing was upheld.)

Because of the language in the Probation Statute which says that an unsatisfactory employee can be removed at any time during that period, Miracle may garner some support for a ruling that a probationary employee who is performing satisfactorily cannot be terminated. Justices Donnelly and Stewart seemed concerned about that language.  But I think the state is going to win this one.  The legislative intent is certainly clear to treat probationary and tenured employees differently, with the former being more like employees-at-will.  And whether or not the Court buys the state’s distinction between “performance” and “service,” I think the Court is going to defer to the considerable discretion given to agency heads during the probationary period, even when it causes an employee like Miracle an unfair outcome.

To Student Contributor Ivy Charneski

I was interested in the Ohio Department of Veterans’ Services new argument that the concept of an employee’s “service” found in the statute governing probationary employees is broader than an employee’s “performance” found in the statute governing tenured employees. This service vs. performance distinction makes sense to me in that an employee’s service refers to things outside of job performance like personality and how well an employee gets along with others. I don’t recall seeing this argument in the briefs, but I think that it could be a strong one for ODVS. Nonetheless, even if the Court doesn’t buy that argument, it seemed very hesitant at the potential scope of the rule that Miracle’s counsel was arguing for.  I don’t think the Court is prepared to hold that probationary employees cannot be fired for “political” reasons. I think the Court wants to leave room for state agencies to be able to fire probationary employees when there is some problem with their employment that may fall outside of unsatisfactory performance. Because of that, I think this looks like a win for ODVS.