[Cite as Miracle v. Ohio Dept. of Veterans Servs., 2018-Ohio-819.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


James Miracle,                                          :

                 Plaintiff-Appellant,                   :
                                                                                No. 16AP-885
v.                                                      :                    (Ct. of Cl. No. 2016-537)

The Ohio Department of Veterans                         :                 (REGULAR CALENDAR)
Services et al.,
                                                        :
                 Defendants-Appellees.
                                                        :




                                            D E C I S I O N

                                      Rendered on March 6, 2018


                 On brief: Adams & Liming LLC, and Sharon Cason-Adams,
                 for appellant. Argued: Sharon Cason-Adams.

                 On brief: Michael DeWine, Attorney General, Lee Ann Rabe
                 and   Emily    Simmons      Tapocsi,    for     appellees.
                 Argued: Lee Ann Rabe.


                             APPEAL from the Court of Claims of Ohio

KLATT, J.

        {¶ 1} Plaintiff-appellant, James Miracle, appeals a judgment of the Court of Claims
of Ohio that dismissed his action against defendants-appellees, the Ohio Department of
Veterans Services ("ODVS") and the Office of the Governor. For the following reasons, we
reverse that judgment and remand this case to the trial court for further proceedings.
        {¶ 2} On July 14, 2016, Miracle filed suit against defendants, asserting claims for
wrongful discharge in violation of public policy.                    Miracle's claims arose out of the
No. 16AP-885                                                                                             2

termination of his employment as the administrative officer 2/facilities maintenance
supervisor at the Sandusky Domiciliary, an ODVS facility. In his complaint, Miracle alleged
that, prior to his hiring, he had advised Michel Oppy, the then superintendent of the Ohio
Veterans Home at Sandusky, and John Cook, a deputy director of ODVS, of a prior adverse
incident in his job history. Miracle explained that the Ohio Department of Rehabilitation
and Correction had fired him from his position as building construction superintendent at
the Mansfield Correctional Institution after an investigation into the escape of a prisoner.
Oppy and Cook both assured Miracle that the termination would not pose a problem.
        {¶ 3} Miracle began his employment with ODVS on February 23, 2015. In a job
review Miracle received on June 9, 2015, Miracle attained "meets expectations" or "exceeds
expectations" ratings in each category. However, six days later, ODVS' human resource
director informed Miracle that ODVS was terminating his employment. When Miracle
asked the human resource director to explain the reason for his discharge, she told him that
ODVS "was moving in a different direction" and ODVS was "not obligated to give [him] a
reason" because he was only a probationary employee. (Compl. at ¶ 36.)
        {¶ 4} Miracle later learned that Jai Chabria, then a senior advisor for the governor,
had ordered ODVS to fire him. Apparently, Chabria wanted Miracle discharged to end the
negative press his hiring had garnered from the Sandusky media.1
        {¶ 5} Miracle's complaint asserted three claims for wrongful discharge in violation
of public policy:      (1) defendants violated the clear public policy, derived from R.C.
124.27(B), in favor of retaining probationary employees who have satisfactorily performed
their duties; (2) defendants violated the clear public policy, derived from R.C. 124.56,
prohibiting the abuse of the power to remove a civil service employee; and (3) defendants
violated the clear public policy, derived from R.C. 124.34 and the Fourteenth Amendment
of the United States Constitution, favoring public employees' exercise of their constitutional
and statutory rights. In addition to pleading these three claims, Miracle also asked the trial
court to determine whether Chabria was entitled to immunity under R.C. 9.86.




1  As this appeal arises from the grant of a Civ.R. 12(B)(6) motion to dismiss, we draw the foregoing facts
from the complaint.
No. 16AP-885                                                                                  3

       {¶ 6} Rather than filing an answer to the complaint, defendants moved for
dismissal under Civ.R. 12(B)(6). The trial court granted that motion in a judgment dated
November 22, 2016.
       {¶ 7} Miracle now appeals the November 22, 2016 judgment, and he assigns the
following errors:
              1. The trial court erred when it dismissed Appellant's
              Complaint for Failure to State a Claim upon Which Relief May
              be granted, pursuant to Civ. R. 12(B)(6).

              2. The trial court erred in determining that no clear public
              policy emanates from Ohio Revised Code § 124.27.

              3. The trial court erred in determining that Appellant could not
              establish the jeopardy element of a wrongful discharge claim
              arising out of the public policy articulated in Ohio Revised Code
              §124.56.

              4. The lower court erred when it held that it did not have
              authority to make an immunity determination regarding Jai
              Chabria. Appellant did not fail to state a claim for relief arising
              under State law and if permitted to proceed against Chabria
              personally, in a Court of Common Pleas, would have additional
              claims to pursue against him.

       {¶ 8} We will address Miracle's first three assignments of error together. By these
assignments of error, Miracle argues that the trial court erred in dismissing his claims
pursuant to Civ.R. 12(B)(6). A motion to dismiss for failure to state a claim upon which
relief can be granted tests the sufficiency of the complaint. Volbers-Klarich v. Middletown
Mgt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, ¶ 11. In construing a complaint upon a
Civ.R. 12(B)(6) motion, a court must presume that all factual allegations in the complaint
are true and make all reasonable inferences in the plaintiff's favor. Id. at ¶ 12; LeRoy v.
Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, ¶ 14. " '[A]s long as there
is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to
recover, the court may not grant a defendant's motion to dismiss.' " Cincinnati v. Beretta
U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, ¶ 5, quoting York v. Ohio State Hwy.
Patrol, 60 Ohio St.3d 143, 144 (1991). Appellate court review of a trial court's decision to
dismiss a claim pursuant to Civ.R. 12(B)(6) is de novo. Ohio Bur. of Workers' Comp. v.
McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, ¶ 12.
No. 16AP-885                                                                                  4

       {¶ 9}    Under the employment-at-will doctrine, an employer may terminate at-will
employment at any time, for any reason. Collins v. Rizkana, 73 Ohio St.3d 65, 67-68 (1995).
However, the Supreme Court of Ohio has recognized an exception to this doctrine: an
employer who discharges an employee for reasons that contravene clear public policy is
subject to an action for damages. Id. at 68-69; Greeley v. Miami Valley Maintenance
Contrs., 49 Ohio St.3d 228 (1990), paragraphs one and two of the syllabus. To prevail on a
claim for wrongful discharge in violation of public policy, a plaintiff 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) dismissing
employees under circumstances like those involved in the plaintiff's dismissal would
jeopardize the public policy (the jeopardy element), (3) the plaintiff's dismissal was
motivated by conduct related to the public policy (the causation element), and (4) the
employer lacked an overriding business justification for the dismissal (the overriding-
justification element). Collins at 69-70. The clarity and jeopardy elements, which involve
relatively pure legal and policy questions, present questions of law. Id. at 70. The causation
and overriding-justification elements present questions of fact. Id.
       {¶ 10} Here, defendants argue that Miracle's first claim for wrongful discharge fails
because Miracle did not establish the existence of a clear public policy to support the claim.
To satisfy the clarity element of a claim for wrongful discharge, "a terminated employee
must articulate a clear public policy by citation to specific provisions in the federal or state
constitution, federal or state statutes, administrative rules and regulations, or common
law." Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, ¶ 24. Relying on
R.C. 124.27(B), Miracle stated in his complaint 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." (Compl. at ¶ 48.) In other words,
Miracle 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.
       {¶ 11} In moving for dismissal of the first claim, defendants ignored the public
policy Miracle stated in his complaint. Defendants, instead, argued that Miracle claimed
that R.C. 124.27 established a clear public policy against any discharge of probationary
employees in the service of the state.             The trial court accepted defendants'
No. 16AP-885                                                                              5

mischaracterization of Miracle's claim, and it analyzed whether R.C. 124.27 manifested a
clear public policy precluding the discharge of any probationary employee. In doing so, the
trial court erred. The trial court was required to determine whether the clear public policy
as articulated in the complaint, not in defendants' motion, was apparent in R.C. 124.27. See
White v. Sears, Roebuck & Co., 163 Ohio App.3d 416, 2005-Ohio-5086, ¶ 14 (10th Dist.).
Accordingly, we sustain Miracle's second assignment of error.
       {¶ 12} With regard to Miracle's second claim for wrongful discharge, defendants
conceded for purposes of their motion to dismiss that Miracle stated a clear public policy.
Thus, defendants admitted that R.C. 124.56 expressed a clear public policy "prohibiting the
abuse of power by 'any officer, board, commission, head of a department, or person' who
possesses the power to remove a civil service employee." (Compl. at ¶ 57, quoting R.C.
124.56.) Assuming arguendo that such a clear public policy exists, defendants argued that
Miracle failed to allege in his complaint that ODVS violated that policy.
       {¶ 13} The trial court interpreted defendants' argument as an attack on the jeopardy
element. We disagree. To satisfy the jeopardy element, a plaintiff must show that the clear
public policy at issue is at risk if the employer is permitted to discharge employees in
circumstances like those underlying the plaintiff's discharge. Collins, 73 Ohio St.3d at 70.
Because defendants moved for a dismissal under Civ.R. 12(B)(6), the facts alleged in the
complaint determine the circumstances of discharge.         See Orders v. State Teachers
Retirement Sys., 10th Dist. No. 15AP-907, 2016-Ohio-3345, ¶ 16 (holding that a court must
confine its consideration to the allegations contained in the complaint when determining a
Civ.R. 12(B)(6) motion). Thus, in this case, the operative question 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. Rather than
addressing that issue, defendants instead argued two different points.
       {¶ 14} First, defendants contended that, because R.C. 124.56 does not provide a
private right of action, Miracle cannot assert a claim for wrongful discharge based on the
public policy underlying the statute. Second, defendants argued that Miracle failed to aver
in his complaint that his direct employer—ODVS—violated the clear public policy.
Defendants maintained that, in order to assert a wrongful discharge claim, Miracle had to
direct his claim at ODVS, not the Office of the Governor.
No. 16AP-885                                                                                 6

       {¶ 15} We find both of defendants' arguments unavailing.             Defendants' first
argument fails to recognize that, if Miracle can prove the elements of a claim for wrongful
discharge, he can recover damages on that claim despite the lack of a private remedy in the
statute itself. See Greely, 49 Ohio St.3d at 231-32 (rejecting the argument that the lack of
remedial provisions in a statute precludes a plaintiff from asserting a common-law claim
for wrongful discharge in violation of public policy based on the statute); accord Leininger
v. Pioneer Natl. Latex, 115 Ohio St.3d 311, 2007-Ohio-4921, ¶ 23 ("In Greeley, the statute
involved did not provide any private remedies to the employee, and so a claim at common
law was recognized."). Indeed, "[r]ecognizing a common-law claim for wrongful discharge
is more likely appropriate if the statute or policy does not itself provide a remedy or private
cause of action." Kirk v. Shaw Environmental, Inc., N.D.Ohio No. 1:09-cv-1405, 2010 U.S.
Dist. LEXIS 31759, 2010 WL 1387887 (Mar. 31, 2010).
       {¶ 16} Defendants' second argument misconstrues the text of the complaint. In
pleading his second claim, Miracle alleged:
              59. Jai Chabria, in his capacity as Senior Advisor to the
              Governor of the State of Ohio, and those persons acting at his
              direction, abused their authority, when they terminated
              Plaintiff despite the fact that he was satisfactorily performing
              the duties of his position.

              60. Defendants abused their authority, when they terminated
              Plaintiff despite the fact that Plaintiff was satisfactorily
              performing the duties of his position.

              61. Political optics are not sufficient grounds for termination.

              62. If this decision is allowed to stand, the clear public policy
              prohibiting abuse of power will be jeopardized.

(Compl. at ¶ 59-62.) Given these allegations, we conclude that Miracle sufficiently stated
wrongful action on the part of both defendants. Miracle alleged that both defendants'
actions—not just Chabria's actions—resulted in the termination of his employment.
       {¶ 17} In its determination of defendants' challenge to the second claim, the trial
court reasoned that Miracle could not establish the jeopardy element because he conceded
that the governor had the authority to order the termination of his employment. However,
as we stated above, the jeopardy element turns on whether the discharge of probationary
No. 16AP-885                                                                                  7

civil service employees who provide satisfactory service would compromise the clear public
policy against the abuse of the power to remove employees. The fact that the governor has
the authority to discharge probationary civil service employees, including Miracle, does not
resolve that issue. Accordingly, we sustain Miracle's third assignment of error.
       {¶ 18} Although Miracle asserted three claims for wrongful discharge in violation of
public policy, on appeal, he only argues error regarding two of those claims. Miracle, thus,
has tacitly abandoned his third claim for wrongful discharge (based on R.C. 124.34 and the
Fourteenth Amendment to the United States Constitution).             Accordingly, we sustain
Miracle's first assignment of error to the extent that it asserts error in the dismissal of his
first and second claims, but overrule it to the extent that it asserts error in the dismissal of
his third claim.
       {¶ 19} By Miracle's fourth assignment of error, he argues that the trial court erred
in refusing to determine Chabria's immunity. The refusal resulted from the trial court's
conclusion that Miracle failed to state any claim in his complaint. As we have found that
the trial court erred in dismissing two of Miracle's claims, we also find that the trial court
erred in its denial of the immunity determination. Accordingly, we sustain Miracle's fourth
assignment of error.
       {¶ 20} For the foregoing reasons, we sustain in part and overrule in part Miracle's
first assignment of error, and we sustain Miracle's second, third, and fourth assignments of
error. We remand this case to the Court of Claims of Ohio for further proceedings
consistent with law and this decision.
                                                        Judgment reversed; case remanded.


                         BROWN, P.J., and BRUNNER, J., concur.
