Oral Argument Preview: Can Public Employment Statutes Support Greeley claims? James Miracle v. Ohio Department of Veterans’ Services and Office of the Governor.

On April 23, 2019, the Supreme Court of Ohio will hear 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” 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 Jai Chabria, 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 Judge Patrick M. McGrath of the Ohio Court of Claims.

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. Judge William A. Klatt authored the opinion which was joined by Judges Susan Brown and Jennifer Brunner. 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.

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices French, Fischer, DeWine,  and O’Donnell*

*Then-Justice O’Donnell would only accept on proposition of Law No.1

No: Justice Kennedy and DeGenaro

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 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.)

H. 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, 2011Ohio4609 (“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.”)

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

ODVS and the Office of the Governor filed a joint brief. Collectively they will be referred to as “Appellants.”

The Court should reverse the Tenth District’s ruling because the decision permitted a tort action against the State in service of a public policy that is already protected by non-tort remedies. Mr. Miracle’s public policy claim can only be based on R.C. 124.27(B), the Probation Statute, and it fails because it does not satisfy the clarity or jeopardy elements of a Greeley claim. First, to satisfy the clarity element, the court must determine whether the statute establishes a clear public policy. The court makes this determination by interpreting the statute’s meaning and the General Assembly’s intent in its enactment. An analysis of the text, structure, and history of the Probation Statute reveals that the General Assembly did not intend to create a clear public policy restricting public employers’ discretion to dismiss probationary employees.  The statute does not contain any prohibitory language on the part of the employer; rather it empowers public employers to use discretion. Also, the statute does not give rise to any employee rights.

Even assuming the Probation Statute does give rise to a clear public policy, Mr. Miracle’s Greeley claim still fails the jeopardy element which considers whether there are other adequate remedies to avoid jeopardizing the identified public policy. In this case there are several other remedies that protect any possible public policy. For example, R.C. 124.56, the Investigation Statute, is an explicit remedy for violation of the Probation Statute; therefore the Court is precluded from crafting other remedies like the Greeley claim asserted by Mr. Miracle here. Another implicit remedy is mandamus, which has been used to compel compliance with civil service laws such as to reinstate public employees wrongfully terminated and to award back pay. Also, R.C. 124.27 does not allow probationary employees to appeal, which triggers the presumption that a writ of mandamus is the sole remedy to challenge removal.

Also, Mr. Miracle’s Greeley claim cannot be based on the Investigation Statute because this statute is simply a mechanism to enforce the Probation Statute and to regulate official abuse, not individual employee rights. The Greeley tort should not be expanded into the statutory regulation of public employment.

Finally, the Tenth District’s ruling should also be reversed because the decision erroneously allowed a wrongful discharge claim to survive against the Office of the Governor, which was not Mr. Miracle’s employer. Greeley claim liability is limited only to the employer and those capable of discharging an employee. Because the Office of the Governor was not Mr. Miracle’s employer, it should be dismissed.

Miracle’s Argument

The Tenth District’s decision should be affirmed because R.C. 124.27 establishes a clear public policy against the discharge of civil service employees who provide satisfactory service during the probationary period. This is evidenced and supported by Ohio’s civil service laws which establish a meritocracy.

Furthermore, R.C. 124.27 requires an employer to determine that an employee’s service is unsatisfactory before terminating that employee.  That is not what happened here. Mr. Miracle was terminated for political optics, which is an abuse of power prohibited by R.C. 124.56.

Greeley claims are appropriate where a statute prohibits behavior but provides no relief. Here, Mr. Miracle’s Greeley claim is appropriate because R.C. 124.56 only provides a penalty for the abuser of power, but no cause of action for the employee who was a victim of the abuse. Furthermore, Mr. Miracle does not have any other remedy, as the statute explicitly states he has no right to appeal his termination. Also, despite what ODVS and the Governor’s Office argue, mandamus is a remedy of last resort and would not have been an adequate remedy to Mr. Miracle because he sought an immunity determination under R.C. 9.86, which needs to be brought in the Court of Claims, and because he had an adequate remedy at law. Additionally, Mr. Miracle’s Greeley claim would not allow him greater remedies than those available to tenured employees because his rights in the Greeley claim would be limited to those defined by the statute for non-probationary employees.

Finally, the Governor’s Office and ODVS are so interrelated that their separate existences should be disregarded. For example, the Governor’s office appoints leaders of ODVS and controls its budget. Also, the Governor’s office was directly involved and exercised its power in the decision to terminate Mr. Miracle.

Appellants’ Proposed Proposition of Law 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.

Appellants’ Proposed Proposition of Law No. 2

Only the employer is subject to a Greeley claim.

Amici in Support of Miracle.

Ohio Association for Justice

The Ohio Association for Justice (OAJ) filed an amicus brief in support of Mr. Miracle. OAJ’s mission is to preserve constitutional rights and to protect meaningful access to the civil justice system for all residents of this state. OAJ argues that R.C. 124.27 satisfies the clarity element for Mr. Miracle’s Greeley claim, while R.C. 124.56 satisfies the jeopardy element, and that those are the only two narrow issues raised in this case. Appellants’ first proposed proposition of law is overly broad and essentially asks the court to issue a forbidden advisory opinion. Appellants only challenged the clarity element in relation to Mr. Miracle’s R.C. 124.27 claim and only challenged the jeopardy element in Mr. Miracle’s R.C. 124.56 claim. Therefore, Appellants cannot now challenge other elements of those claims. Finally, Appellants have waived most of the arguments in their brief, as they were never argued in the courts below. Ultimately OAJ urges the Court to dismiss this discretionary appeal as improvidently granted due to the many overly broad issues advanced by Appellants that were not raised in the courts below.

Ohio Employment Lawyers Association

The Ohio Employment Lawyers Association (OELA) also filed an amicus brief in support of Mr. Miracle. OELA is a professional membership organization comprised of lawyers who represent employees in labor, employment and civil rights disputes. OELA argues that R.C. 124.27 establishes a clear policy against improper removals, and Mr. Miracle was improperly removed for blatantly political reasons unrelated to his job performance.  OELA points out that if the General Assembly had wanted to allow probationary removals for non-performance related reasons, it could easily have done so by removing the reference to satisfactory service altogether. OELA also argues that R.C. 124.27 satisfies the jeopardy element due to its lack of a remedy for employees who are improperly removed in violation of the statute. Finally, OELA also argues that the Office of the Governor should not be dismissed from the case because even if the Court finds the Office of the Governor cannot be liable for wrongful discharge in violation of public policy, Mr. Miracle still has a valid claim against it for tortious interference.

Amicus OAJ’s Proposed Proposition of Law No. 1

R.C. 124.27 satisfies the clarity element for the common law tort of wrongful discharge in violation of public policy.

Amicus OAJ’s Proposed Proposition of Law No. 2

R.C. 124.56 satisfies the jeopardy element for the common law tort of wrongful discharge in violation of public policy.

Amicus OELA’s Proposed Proposition of Law No. 1

Probationary civil service employees cannot be terminated for political or patronage reasons unrelated to their satisfactory service.

Amicus OELA’s Proposed Proposition of Law No. 2

A party with the power to cause a wrongful discharge is, or should be treated as, the employer of the discharged employee.

Student Contributor: Ivy Charneski

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