Ohio government employers have the right to fire civil service employees for unsatisfactory service during their initial probationary periods, the Ohio Supreme Court ruled today.

A Supreme Court majority ruled a former administrator at the Sandusky Veterans Home did not cite any state law that would prevent the Ohio Department of Veterans Services, at the behest of the governor’s office, from terminating him during his initial probationary period. Writing for the Court’s majority, Justice Judith L. French explained the Court recognizes a “public policy” exception to the traditional rule that allows an employer to dismiss a worker without providing any reason, but the laws James Miracle cited did not prohibit probationary employees from being fired.

Justice French also noted that allowing a probationary employee to sue for wrongful discharge would actually have the effect of giving a new state worker more rights than a tenured civil service employee.

Chief Justice Maureen O’Connor and Justice R. Patrick DeWine joined Justice French’s opinion.

Justices Patrick F. Fischer and Michael P. Donnelly also joined Justice French’s opinion, but issued separate concurring opinions. Justices Sharon L. Kennedy and Melody J. Stewart concurred in judgment only.

Employee Contends Firing Was Politically Charged
Miracle was hired to be a manager at the veterans home in 2015, and at the time, he advised the home’s leadership of his adverse work history.

In 2013, Miracle was a building-construction superintendent at the Mansfield Correctional Facility when an inmate escaped. After an investigation of the incident, Miracle was fired for failing to secure tools and falsifying tool-inventory documents. Miracle appealed to the State Personnel Board of Review (SPBR), and while his appeal was pending, he negotiated a settlement to secure another position at a different correctional institution.

Miracle sought a job as an administrative officer and facilities manager with the veterans home, and the superintendent assured Miracle his job history would not pose a problem. He began working as a probationary employee in February 2015. At his June 2015 performance review, he received ratings of “meets expectations” or “exceeds expectations” in each of his review categories. Six days after the review, the department’s human resources director told Miracle he was terminated because the department “was moving in a different direction.”

Miracle later discovered that Jai Chabria, a senior adviser to then Gov. John Kasich, directed the superintendent to fire Miracle because of negative press regarding Miracle’s role in the Mansfield inmate escape.

Worker Contests Dismissal
Miracle filed a lawsuit claiming, among other things, that his termination violated public policy because two state statutes protected him from removal. He maintained that R.C. 124.27(B) favors retaining probationary employees who satisfactorily perform their duties. He also asserted that he was protected by R.C. 124.56, which prohibits the abuse of power by any person with the authority to appoint or remove a civil-service employee.

Miracle sued in Ohio’s Court of Claims, and the state requested the case be dismissed. The trial court sided with the state, and Miracle appealed to the Tenth District Court of Appeals. The Tenth District reversed the decision regarding the two statutes Miracle claimed protected him and also directed the trial court to determine if Chabria could be held liable for his role in the termination.

The Department of Veterans Services appealed the decision, and the Supreme Court agreed to hear the case.

Court Considers Ability to Sue for Wrongful Discharge
Justice French explained that in the 1990 Greeley v. Miami Valley Maintenance Contrs. Inc. decision, the Ohio Supreme Court recognized a “public policy” exception to the general rule that Ohio is an “at-will” employment state where an employer can terminate a worker and an employee can quit a job for any reason or no reason. The exception, known as a Greeley claim, allows an employee to bring a wrongful discharge lawsuit against an employer if the employee has been discharged or disciplined for any reason prohibited by law.
Veterans Services argued that a Greeley lawsuit cannot be invoked using the two statutes Miracle cited, R.C. 124.27 and R.C. 124.56, and it further argued that no Ohio statutes regarding public employment could be used to support a Greeley claim. The state also maintained that a Greeley claim can be made only against the employer, and Miracle had no right to assert the governor’s office violated public policy for its role in his dismissal.

The majority opinion explained that to win a lawsuit for wrongful discharge in violation of public policy, the worker must prove four elements: that a clear public policy existed and was expressed in law or in common law; that dismissing the employee would jeopardize the law; that the dismissal was motivated by conduct related to the law; and that the employer lacked an “overriding legitimate business justification” for the dismissal.

The first element is known as the “clarity element,” and the Court examined R.C. 124.27(B) and R.C. 124.56 for any wording that expressed a clear public policy against termination under the circumstances Miracle alleged.

“Our examination of the language and purposes of the relevant statutes governing civil-service employment leads us to conclude that neither R.C. 124.27(B) nor R.C. 124.56 expresses a clear public policy that would provide the basis for a Greeley claim by civil-service employees terminated during the probationary period,” the opinion stated.

The Court wrote that probationary employees do not enjoy the same rights and protections afforded to tenured civil servants, and accepting Miracle’s arguments would contradict the law by treating probationary civil-service employees “the same as, if not better than,” tenured employees.

The opinion explained that state law only allows a tenured civil service employee to be removed for “incompetency,” “inefficiency,” “neglect of duty,” and “unsatisfactory performance.” A probationary employee can be removed for “unsatisfactory service,” and the Court noted that “service” and “performance” do not have the same meaning and the legislature intended to impose different termination standards for probationary and tenured employees.

Even if Miracle established his performance was satisfactory, the law did not intend to limit the termination of probationary employees based only on performance, the Court wrote.

Relief for Terminated Employees Limited
The difference between probationary and tenured state employees is further distinguished by the recourse granted to wrongfully discharged employees, the opinion noted. Tenured employees can appeal their removal to the SPBR while a probationary employee cannot. But the SPBR offers limited assistance to a wrongfully fired employee and might not be able to award back pay or other help.

If Miracle’s claim was right, then probationary employees would have the “full blown” remedies available through a civil lawsuit that are not an option for the tenured civil service employee. That would turn the public employment laws “on their head,” the Court concluded.

Because the Court did not find Miracle cited any laws allowing him to sue, the Court did not address whether Chabria could be held liable or if a claim could against a state government department could also name the governor’s office as a party.

Concurrence Seeks to Clarify Ruling
Justice Fischer concurred separately to address the Tenth District’s determination that the state had conceded that R.C. 124.56 expressed a clear public policy “prohibiting the abuse of power,” which could meet the clarity element. In his concurring opinion, Justice Fischer explained that the state did not make such a concession, but rather the state had argued that even if the law established a public policy against termination, Miracle failed to meet the second Greeley requirement that dismissing the employee would jeopardize the public policy.

Justice Fischer wrote that because the state never admitted that Miracle met the clarity element, he agreed with the majority opinion that Miracle could not prove his termination was against public policy.

Concurrence Cautions against Broad Reading
Justice Donnelly, in his concurring opinion, noted the majority opinion only addressed the two statutes Miracle cited, and did not address the state’s “sweeping assertion that Greeley” does not apply to any public employment statutes.

He concluded the majority opinion should not be interpreted as preventing a public probationary employee from suing for wrongful discharge “based on an employer’s violation of some other statute contained in the scheme governing public employment.”

2018-0562. Miracle v. Ohio Dept. Veterans Servs., Slip Opinion No. 2019-Ohio-3308.

View oral argument video of this case.

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