The default position in Ohio for those who work without contracts is what is known as employment-at-will. This means employees can be fired for any reason or no reason, but also that they can quit at any time.
Over time, it has become unlawful to fire employees for reasons like age, gender, and race, but this basic rule of employment-at-will has stuck around tenaciously. Then, in 1990, the Supreme Court of Ohio created an exception to the employment-at-will doctrine. It recognized the tort of wrongful discharge in violation of public policy. That means it became unlawful to fire an at-will employee for reasons that violated the public policy of Ohio. And where is public policy found? Mostly in statutes. This is the backdrop to understanding the case of James Miracle.
Miracle had worked at the Ohio Department of Corrections as a building construction superintendent at the Mansfield Correctional Institution. In July of 2013, an inmate escaped from Mansfield, and Miracle was fired for failing to secure tools and falsifying tool-inventory documents.
In 2015, Miracle started a job as a probationary employee at the Department of Veterans Affairs (ODVS). At the time he was hired, Miracle 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 a senior advisor to Gov. John Kasich 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. He lost in the Court of Claims (the court where you have to go to sue state agencies) but won in the court of appeals in Columbus.
The issue before the Supreme Court of Ohio was whether Miracle had a viable public policy wrongful discharge claim. Miracle relied on two statutes as the source of his claim. One, R.C. 124.27 (B), known as the Probation Statute, provides that appointments in the 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. The other, R.C. 124.56, known as the Investigation Statute, provides that if a person having power of appointment and removal abuses such power, the State Personnel Board of Review shall make an investigation, and if it finds a violation it shall make a report to the governor.
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. But the Supreme Court unanimously 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.
Tenured civil service employees cannot be removed except for reasons specified in the civil service laws, one of which is “unsatisfactory performance.” By contrast, under the Probation Statute, probationary employee can be removed for “unsatisfactory service.” In rejecting Miracle’s position, the Court accepted an argument urged by the state – 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.
The other source of public policy Miracle used to try and sustain his wrongful discharge claim was the Investigation Statute, which prohibits the abuse of power by an appointing authority in the appointment or removal of a civil-service employee. The Court rejected this argument as well. While the Investigation Statute gives the State Personnel Board of Review 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, Miracle was out of luck. The author of the opinion for the Court, Justice Judy French, summed it up like this:
“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.”