Provens v. Stark Cty. Bd. of Mental Retardation & Developmental Disabilities

• Decision Date: 29 July 1992
• Docket Number: No. 91-1412,91-1412
• Court: Ohio Supreme Court
• Parties: , 59 Fair Empl.Prac.Cas. (BNA) 911, 75 Ed. Law Rep. 898 PROVENS, Appellant, v. STARK COUNTY BOARD OF MENTAL RETARDATION & DEVELOPMENTAL DISABILITIES, Appellee.

Page 252

64 Ohio St.3d 252

594 N.E.2d 959, 59 Fair Empl.Prac.Cas. (BNA) 911,

75 Ed. Law Rep. 898

PROVENS, Appellant, v. STARK COUNTY BOARD OF MENTAL RETARDATION & DEVELOPMENTAL DISABILITIES, Appellee.

No. 91-1412.

Supreme Court of Ohio.

Submitted May 12, 1992.

Decided July 29, 1992.

SYLLABUS BY THE COURT

Public employees do not have a private cause of civil action against their employer to redress alleged violations by their employer of policies embodied in the Ohio Constitution when it is determined that there are other reasonably satisfactory remedies provided by statutory enactment and administrative process.

This is an appeal of a judgment of the court of appeals affirming a decision of the trial court granting summary judgment to the defendant-appellee, Stark County Board of Mental Retardation & Developmental Disabilities ("board"). The necessary facts of this case are that the plaintiff-appellant, Patricia Provens, a teacher employed in the defendant's school facility, filed a complaint in the Court of Common Pleas of Stark County against the defendant. In her complaint the plaintiff alleged that the board, and its supervisors, had harassed, discriminated against, and disciplined her, all as a result of her having criticized the operation and practices of the board, and having filed discrimination charges against the board with both the Ohio Civil Rights Commission and the Equal Opportunity Commission. Further, plaintiff alleged that the board retaliated against her because she had initiated an assault and battery lawsuit against administrative employees of the board.

The plaintiff further alleged in her complaint that her activities in speaking out against the board's policies, and in filing the lawsuit and the administrative charges, were protected by the Ohio Constitution. ¹ She also alleged that the board, in violation of her constitutional rights, harassed her, unlawfully searched her desk, and singled her out for discriminatory treatment, making it extremely difficult for her to fully and faithfully discharge her duties and obligations as an employee of the board. At a deposition conducted on February 15 and 16, 1990, the plaintiff testified at length regarding the allegations contained in her complaint, all of which were basically centered on her claims of being "harassed" by her employer. ²

The plaintiff sought injunctive relief, as well as compensatory and punitive damages. The board timely answered the complaint, denying all the plaintiff's claims of harassment, denying that any acts of the board had violated the plaintiff's Ohio constitutional rights, and offering the affirmative defense that the plaintiff's complaint failed to state a claim for which relief could be granted.

The board thereafter filed its motion for summary judgment on the ground that there is no private cause of action for civil damages for the violation of the plaintiff's Ohio constitutional rights as alleged in her complaint. The board additionally set forth its opinion that assuming a cause of action for civil damages for a violation of Section 11, Article I of the Ohio Constitution exists, the plaintiff was not entitled to relief since her activities were not "protected" under the Ohio Constitution. Further, the board asserted that the plaintiff had failed to state a claim for intentional infliction of emotional distress since the alleged conduct was not extreme or outrageous. Moreover, in its supportive memorandum, the board argued that punitive damages cannot be awarded against a public entity such as the board.

The trial court granted summary judgment in favor of the board on the ground that "a private cause of action under the Ohio Constitution does not exist," citing Bush v. Lucas (1983), 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648, and held that it would be inappropriate for the court to create a new judicial remedy. The trial court did not determine the issue of whether the plaintiff's activities constituted "protected activity."

Upon appeal, the Court of Appeals for Stark County affirmed the judgment of the trial court, also citing Bush v. Lucas, supra.

This cause is now before the court pursuant to the allowance of a motion to certify the record.

Green, Haines, Sgambati, Murphy & Macala Co., L.P.A., Ronald G. Macala and Randall Vehar, Canton, for appellant.

Day, Ketterer, Raley, Wright & Rybolt Co., L.P.A., J. Sean Keenan and Jill Freshley Otto, Canton, for appellee.

HOLMES, Justice.

The plaintiff-appellant's complaint alleged a violation of her state constitutional rights. Although she did not specify in her complaint what rights were allegedly violated, the thrust of the allegations indicate that Section 11, Article I of the Ohio Constitution was the major basis of plaintiff's claims. This section provides:

"Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. * * * " This constitutional provision does not set forth an accompanying cause of action for a violation of the right of free speech. And, parenthetically, no other constitutional provision relied upon by the appellant provides an individual cause of action for an alleged violation of such constitutional right. Additionally, the Ohio General Assembly has not authorized such an action. Further, this court has never pronounced it to be the common law of this state that a public employee has a private cause of action against her employer to redress alleged violations by her employer of policies embodied in Ohio's Constitution. This is precisely the new common law the appellant seeks this court to pronounce, even if other administrative remedies (adequate or inadequate) might also be available. Appellant argues that any such alternative remedies only supplement, and do not replace, a plaintiff's right to bring a civil action to enforce constitutional rights.

In resolving the issues presented, we must be mindful of some general principles regarding the exercise of judicial discretion. When rights are invaded or violated, the law generally provides a remedy. When rights are not expressly provided by statutory law, courts may in given instances fill the void, looking to any legislative policy or statutory scheme within the area of concern. Even though this court is empowered to grant relief not expressly provided by the legislature, and may grant relief by creating a new remedy, we shall refrain from doing so where other statutory provisions and administrative procedures provide meaningful remedies.

The United States Supreme Court has addressed its judicial role in the type of case presently before us on a number of occasions. One of the more recent cases is that of Bush v. Lucas (1983), 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648, where the court considered whether a private claim for damages could be stated by a federal employee for an alleged violation of his First Amendment rights. In Bush, the plaintiff, a federal aerospace engineer, filed a complaint against his employer, the George C. Marshall Space Flight Center, to recover for alleged defamation and retaliatory demotion. He alleged that his demotion was the result of his having made statements to the news media which were highly critical of the center.

Justice Stevens, writing for the court, assumed for purposes of the court's decision that the federal employee's First Amendment rights had been violated by adverse personnel action. The court also assumed that the civil service remedies available to him were not as effective as a tort-damages remedy and would not fully compensate him for the harm he had allegedly suffered. Additionally, the court acknowledged that Congress had not expressly authorized the damages remedy sought by the petitioner, nor had Congress expressly precluded the creation of such remedy. The court then proceeded to review all the factors relevant to the petitioner's claim that a right of private action should be made available for the violation of his constitutional rights. In this regard the court observed:

"Given the history of the development of civil service remedies and the comprehensive nature of the remedies currently available, it is clear that the question we confront today is quite different from the typical remedial issue confronted by a common-law court. The question is not what remedy the court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue. * * * " 462 U.S. at 388, 103 S.Ct. at 2416-2417, 76 L.Ed.2d at 664.

The Bush court in essence concluded that it must make a remedial determination, paying particular heed to any special factors counseling hesitation before authorizing a new remedy. Accordingly, the court stated that:

"Petitioner asks us to authorize a new nonstatutory damages remedy for federal employees whose First Amendment rights are violated by their superiors. Because such claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, we conclude that it would be inappropriate for us to supplement that regulatory scheme with a new judicial remedy." 462 U.S. at 368, 103 S.Ct. at 2406, 76 L.Ed.2d at 651.

The United States Supreme Court has generally exercised extreme caution in reviewing cases asserting a "constitutional tort" theory cause of action. Such actions have been held viable against federal officials for a violation of Fourth Amendment rights (an illegal search and seizure by federal narcotics agents), Bivens v. Six Unknown Fed. Narcotics Agents (1971), 403 U.S. 388, 91 S.Ct. 1999, 29...