“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.”
Justice French, opinion of the court
On August 20, 2019, the Supreme Court of Ohio handed down a merit decision in Miracle v. Ohio Dept. of Veterans Servs, 2019-Ohio-3308. In an opinion written by Justice French, the court held that neither the civil service probation statute nor the civil service investigation statute provides the clear public policy necessary to underpin a wrongful-discharge tort claim by a probationary public employee. The judgment was unanimous, although only Chief Justice O’Connor and Justice DeWine fully joined the court’s opinion. Justice Fischer concurred, with a separate opinion, as did Justice Donnelly. Justices Kennedy and Stewart concurred in judgment only. The case was argued April 23, 2019.
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”). According to Miracle, he was assured by a supervisor that his adverse job history would not be a problem. Miracle began employment with ODVS as a probationary employee in February 2015. In early June of 2015, Miracle received his probationary review. He received a “meets expectations” or “exceeds expectations” evaluation in all categories. A few days later, Miracle was told he was being fired because 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 his alleged involvement in the Mansfield prison escape.
Miracle sued ODVS and the Governor’s office in the Court of Claims, alleging that his termination violated the public policy articulated in R.C. 124.27(B), R.C. 124.56, and due process, and that the governor’s senior advisor was not entitled to immunity. The state moved to dismiss Miracle’s complaint for failure to state a claim, which the trial court granted.
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 appeals court reinstated the two wrongful-discharge claims and reinstated the request for an immunity determination. The appeals court deemed the due process claim abandoned.
Key Statutes Involved in this Appeal
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.)
Other Key Precedent
R.C. 9.86 (State officers and employees are immune from “any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer’s or employee’s actions were manifestly outside the scope of his employment or . . . the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner.”)
R.C. 124.34(A) (Tenured civil- service employees may not be removed except for several specified reasons, one of which is unsatisfactory performance.)
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.)
State ex rel Carver v. Hull, 70 Ohio St.3d 570 (1994) (acknowledging that R.C. 124.56 does not involve adjudication of individual employee rights and does not offer relief to the employee aside from the investigation and removal of the offending official.)
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).)
Sutton v. Tomco Machining, Inc., 2011-Ohio-2723 (Intent of the General Assembly is the key to determine whether statutes express a clear public policy against termination.)
Read the oral argument preview of the case here and an analysis of the argument here.
State’s Propositions of Law Accepted for Review
No. 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.
No. 2
Only the employer is subject to a Greeley claim.
Were the State’s Propositions of Law Adopted?
The first part of the first proposition was adopted, but the court did not go so far as to say that public employment statutes can never be used to support Greeley claims, instead only addressing the two statutes Miracle relied on. Making sure that was clearly understood was the entire point of Justice Donnelly’s separate concurrence.
Given the disposition of the case, the court did not need to address the second proposition of law.
Merit Decision
Executive Summary
It is clear that the legislature intended to treat probationary employees differently from tenured civil service employees. Neither R.C. 124.27(B) nor R.C. 124.56 express the clear public policy necessary to underpin a wrongful discharge claim by a probationary employee.
Analysis
Elements of the Tort of Wrongful Discharge in Violation of Public Policy
- Clarity
- Jeopardy
- Causation
- Overriding Justification
One and two are questions of law, three and four are questions of fact.
At issue in this appeal is the clarity element. Miracle tries to use two civil service statutes to establish the clarity element—R.C. 124.27(B) and R.C. 124.56. The court rejects both.
R.C. 124.27(B) (the Probation Statute)
Miracle argued that the Probation Statute expresses a clear public policy against firing a probationary employee for reasons other than unsatisfactory performance, and that the state violated this policy when it fired him despite his receiving satisfactory performance reviews. The court rejected this argument, finding that the legislature has made it clear that probationary employees do not have the same rights as tenured ones, and Miracle’s position would give probationary employees the same or greater rights than tenured employees.
Unsatisfactory Service versus Unsatisfactory Performance
Tenured civil service employees cannot be removed except for the reasons specified in R.C. 124.34(A), one of which is “unsatisfactory performance.” By contrast, under R.C. 124.27(B), a probationary employee can be removed for “unsatisfactory service.” In rejecting Miracle’s position, the court adopted the state’s strongly argued position that unsatisfactory performance is different from unsatisfactory service. Unsatisfactory performance includes failure to meet goals, work standards, and job duties. And though undefined, unsatisfactory service is a broader concept. It can mean that retaining the employee would not benefit or advance the interests of the agency. So here, even if Miracle did in fact satisfactorily perform his workplace duties, the appointing authority had the discretion to remove him for unsatisfactory service, which in this case apparently included the fallout feared by the governor’s office.
Difference in Post-Termination Remedies for Probationary and Tenured Employees
To further demonstrate that the legislature meant to treat these categories of employees differently, the two groups have different post-termination remedies. Tenured employees can appeal their removal to the State Personnel Board of Review (“SPBR”). Probationary employees cannot. Since the SPBR cannot award remedies like back pay, allowing the full range of tort remedies for fired probationary employees would, in French’s words, “be turning R.C. Chapter 124 on its head.”
History Section
The opinion traces the history of RC. 124.27 (formerly R.C.143.20) to reinforce its holding that R.C. 124.27(B) does not express a clear public policy in favor of retaining probationary employees. Since the first version of the statute was enacted in 1913, employers’ removal authority has been expanded, while procedural protections available to probationary employees has been reduced. The history section specifically details this trajectory to bolster its holding that allowing a Greeley claim here for probationary employees would directly contravene this unambiguous intent.
Failure to Meet Clarity Element Means No Need to Look at Jeopardy Element
Because Miracle could not satisfy the clarity element of his wrongful discharge claim based on R.C. 124.27(B), the court did not need to address whether his termination jeopardized the policy expressed in the statute.
R.C. 124.56 (the Investigation Statute)
The other source of public policy Miracle used to try and sustain his wrongful discharge claim was R.C. 124. 56, which prohibits the abuse of power by an appointing authority in the appointment or removal of a civil-service employee.
While the Investigation Statute gives the SPBR the power to investigate officials who abuse their powers and to recommend their removal, it does not give any substantive rights to employees in this regard. So, it doesn’t work as the clear public policy to support a Greeley claim either.
Immunity for Governor’s Advisor
Miracle had also argued that the senior advisor to the governor who allegedly directed his termination was not entitled to immunity under R.C. 9.86. Given the court’s conclusion that Miracle failed to state any wrongful discharge claims, the Court of Claims had no basis on which to make an immunity determination, and therefore properly dismissed that count of Miracle’s complaint.
Bottom Line
Neither R.C. 124.27(B) nor R.C. 124.56 expresses a clear public policy that provides a basis for a wrongful discharge claim by a probationary civil service employee. Court of appeals is reversed, and judgment of the trial court is reinstated.
Justice Fischer’s Separate Concurrence
Justice Fischer indicated his need to correct a misapprehension by the Tenth District Court of Appeals. In its examination of the jeopardy element of Miracle’s R.C. 124. 56 claim, the Tenth District asserted that the state had conceded that R.C. 124.56 did express a clear public policy to support Miracle’s claim. Fischer found that the record indicated that the state never conceded or admitted that Miracle had established any such clear public policy, either at the court of appeals level, or at the high court, and that Miracle was wrong in his supreme court brief in suggesting that it had.
Justice Donnelly’s Separate Concurrence
Justice Donnelly wanted it to be absolutely clear that while he joined the holding that the two particular statutes at issue here—R.C. 124.27(B) and R.C. 124.56—do not directly express a public policy to support Miracle’s Greeley claim, he does not want the court’s decision to be read as foreclosing all such claims by public employees.
Concluding Observations
Both student contributor Ivy Charneski and I called this correctly for the state.
Here’s what I wrote, after argument:
“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…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.”
My notorious plaintiff’s heart still thinks Miracle got a raw deal, so I was glad to see Justice Donnelly’s separate concurrence about not reading this decision to foreclose Greeley claims for any public employee.
Ivy did a better job than I in seeing that the Court would buy the state’s distinction between “performance” and “service.” She wrote:
“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.”