Ohio Appellate Court Finds Dismissal Without Cause of Probationary Civil Service Employee Violates Public Policy

Editor's Note:  This case was reversed by the Ohio Supreme Court on August 20, 2019.

Earlier this month the Franklin County Court of Appeals reversed the 12(B)(6) dismissal of the wrongful discharge claim of a civil service employee who was fired during his probationary period only six days after receiving a satisfactory performance evaluation allegedly because of the negative publicity that surrounded his hiring and prior employment.  Miracle v. Ohio Dept. of Veterans Servs., 2018-Ohio-819.  The Court found that the complaint stated a valid claim as a matter of law that it is illegal to terminate a civil service employee during his or her probationary period when the employee is performing his or her job duties satisfactorily.  In other words, the Court found a just-cause termination standard to be implied as a matter of public policy from the civil service statute during the initial probationary period even if the employee does not have the right to appeal to the applicable civil service commission.  Therefore, while civil service employees who successfully survive their probationary period can appeal only to the Board of Review or civil service commission, probationary employees can challenge their terminations in court.  That being said, this case illustrates one of my favorite practice pieces of advice: it is always risky to terminate an employee without a good reason following a satisfactory performance evaluation.

According to the Court’s opinion and based on the allegations of the complaint, the plaintiff allegedly explained during his job interview that he had been fired by another state agency following an investigation into an earlier prison escape where he formerly worked.    Assured that was not a problem for the current position, he was hired and received a satisfactory performance evaluation four months later.  Six days after that, he was terminated and refused any explanation because he was still a probationary employee.  He alleged that he was fired because an employee in the Governor’s office sought his dismissal to end negative publicity surrounding his hiring after his earlier termination by a different state agency.  There were apparently no allegations that anyone at the State benefitted personally from his termination or that it was in retaliation for engaging in protected conduct which a statute seeks to encourage.   The State moved to dismiss, which the Court of Claims did on the grounds that the complaint failed to state a claim upon which relief could be granted, even if the allegations were true.

In evaluating public policy wrongful discharge claims, “[t]he clarity and jeopardy elements, which involve relatively pure legal and policy questions, present questions of law” which are reviewed on a de novo basis.  The plaintiff alleged that:

"there exists a clear public policy in favor of retaining probationary employees who are satisfactorily performing their duties and against arbitrary termination of such employees."   . . .  In other words, [the plaintiff] derived from R.C. 124.27 a clear public policy against the discharge of civil service employees who provide satisfactory service during the probationary period.

The trial court had evaluated the allegation to preclude any termination of a probationary employee and found there to be no such public policy.  While the Court agreed that was true, it also found that the trial court misconstrued the alleged public policy, which – as an appellate court reviewing an issue of law de novo – it concluded did exist.  Therefore, it sustained the plaintiff’s claimed error and remanded the case to proceed with discovery. 

The civil service statute at issue – R.C. §124.27(B) -- provides in relevant part:

(B) All original and promotional appointments in the classified civil service, including appointments made pursuant to section 124.30 of the Revised Code, but not intermittent appointments, shall be for a probationary period, not less than sixty days nor more than one year, to be fixed by the rules of the director for appointments in the civil service of the state . . . . No appointment or promotion is final until the appointee has satisfactorily served the probationary period.   If the service of the probationary employee is unsatisfactory, the employee may be removed or reduced at any time during the probationary period.  If the appointing authority decides to remove a probationary employee in the service of the state, the appointing authority shall communicate the removal to the director. A probationary employee duly removed or reduced in position for unsatisfactory service does not have the right to appeal the removal or reduction under section 124.34 of the Revised Code.  (italics added for emphasis).

In a slightly different claim, the plaintiff alleged that Ohio public policy prohibits the abuse of power by officials, which the State conceded.  The Court then observed that the plaintiff would need to allege and prove that the alleged public policy was jeopardized by his discharge, but that the defendants had made a different argument in moving to dismiss.   Although the State argued that there was no private right of action under R.C. 124.56, the Court observed that this is whole point of public policy claims – to create a remedy where none otherwise exists when the public policy would be jeopardized.  Also, the complaint sufficiently alleged misconduct by the named defendants when they complied with the directions to resolve inconvenient “political optics.”  Finally, the fact that the defendants had the power and authority to dismiss probationary employees did not resolve the jeopardy question when it was alleged that their exercise of that power and authority violated the public policy against abuse of power.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Appeals Court: Unemployment Compensation Was Properly Denied When Employee Could Not Satisfactorily Perform Difficult Job.

The Cuyahoga County Court of Appeals affirmed the denial of unemployment compensation to an employee who failed to successfully complete his 9-month probationary period and attributed this to unreasonable job expectations and lack of sufficient job training. Lyons v. Director, Ohio Job and Family Services, 2008-Ohio-3547 (7/17/08). Although the employee was successful in his first three months and received a 10% raise, his performance was severely criticized thereafter and, like half of the employees who started work with him, was terminated for poor performance. The employee blamed the lack of adequate job training and unreasonable job expectations, but the court found that “[u]nsuitability [for employment] may be found where the requirements of the job are extremely stringent.”

By way of background, the employee was hired as a research analyst by a medical market research firm. His duties included conducting “epidemiology research and examining various products and their comparative differences.” The employer contended that it provided intensive training for the first three weeks, including showing “him company guidelines, protocols and worksheets but, according to [his supervisor], training was on-going.” In contrast, the employee testified that his training only lasted a few days. In any event, after his first three-month probationary evaluation, he scored well and received a 10% raise. However, his next three-month evaluation was negative and, despite being given additional time to improve, he was terminated after insufficient improvement was observed. In particular, “his analysis was not sufficiently detailed and he did not request guidance.” As evidence, emails from his supervisor’s boss were produced during the administrative hearing showing pre-existing criticism of his “work for lack of depth and content.”

His supervisor “acknowledged that, of the four people who were hired with him, only two are still with [the firm]. She also noted that [the employee] was frequently tardy but she could not say whether this interfered with his ability to perform the work. Rather, it seemed to show a loss of interest in the job. . . . . Finally, she explained that the job is extremely challenging, the company only hires "way above average workers" and it is difficult for the company to find appropriate employees. Extremely talented individuals, including a doctor, have had difficulty holding the position.” Indeed, the employee himself testified about preparing numerous drafts of reports which never met management’s expectations.

The court found that “[u]nsuitability for a position constitutes fault sufficient to support a just cause [for termination] determination.” Relying on Supreme Court precedent, the court noted that an “employer may properly find an employee unsuitable for the required work, and thus to be at fault, when: (1) the employee does not perform the required work, (2) the employer made known its expectations of the employee at the time of hiring, (3) the expectations were reasonable, and (4) the requirements of the job did not change since the date of the original hiring for that particular position.” The primary issue of contention in evaluating the employee’s entitlement to unemployment compensation was whether the employer’s job expectations were reasonable.

“The evidence demonstrated that the position is extremely challenging. It is undisputed that the company only hires "way above average workers" and it is difficult for the company to find appropriate employees. Extremely talented individuals including a doctor have had difficulty holding the position. Only two of the four people hired with [the employee] were still employed at [by the employer] at the time of the hearing. Moreover, the evidence demonstrated that the employee, although the claimant is extremely intelligent and well-educated, could not complete many of the assignments to the employer's satisfaction. The stringent job requirements do not bar the determination of unsuitability. . . . In addition, the employer's expectations were made known to [the employee] at the time he was hired, the expectations, though high, are reasonable in light of the nature of the position and the requirements of the job did not change.”

Although the employee argued that the job expectations were unreasonable in light of the amount of job training provided, the court disagreed because the employee “held the position for approximately eight months, his work was critiqued in a detailed way and personnel was available to answer questions.” In other words, permitting a suitable time for on-the-job learning, providing formal feedback and having personnel available for questions is sufficient job training.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/8/2008/2008-ohio-3547.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.