Painter v. Graley, 61148

• Citation: 84 Ohio App.3d 65,616 N.E.2d 285
• Decision Date: 21 December 1992
• Docket Number: No. 61148,61148
• Parties: PAINTER, Appellee, v. GRALEY, Appellant. *
• Court: Ohio Court of Appeals

Page 65

84 Ohio App.3d 65

616 N.E.2d 285

PAINTER, Appellee, v. GRALEY, Appellant. ^*

No. 61148.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Dec. 21, 1992.

Joseph R. Compoli, Jr., and James R. Goodluck, Cleveland, for appellee.

Danny R. Williams, Law Director, and Harold C. Reeder, Asst. Law Director, Cleveland, for appellant.

FRANCIS E. SWEENEY, Sr., Presiding Judge.

Defendant-appellant, Charles L. Graley, timely appeals from the decision of the common pleas court which granted summary judgment in favor of plaintiff-appellee, Shirley Painter. Appellee filed a timely notice of cross-appeal. For the reasons set forth below, we reverse the decision of the common pleas court and enter judgment in favor of appellant.

On October 25, 1988, appellee initiated this action through the filing of a complaint. Thereafter, appellee filed an amended complaint alleging that appellant wrongfully terminated her employment in violation of her rights to freedom of speech and expression, as guaranteed by Sections 2 and 11, Article I of the Ohio Constitution. Appellee further alleged that Section 16, Article I of the Ohio Constitution and R.C. 2305.01 conferred jurisdiction on the court below to hear the instant case.

Appellee filed a motion for summary judgment supported by relevant affidavits and exhibits. Appellant duly filed response briefs. Thereafter, the trial court granted appellee's motion and, later, denied appellant's motion for reconsideration.

The facts relevant to the summary judgment are as follows:

Appellee was an employee of the Cleveland Municipal Court, Office of the Clerk of Courts ("Clerk's Office"), from October 1984 to October 1985. Appellee held the position of Chief Deputy Clerk. Appellant was the Assistant Personnel Director for the Clerk's Office during this time period. Appellee was an unclassified civil service employee in the bookkeeping department of the civil division.

In 1985, while still an employee with the Clerk's Office, appellee became a candidate for Cleveland City Council. After she became a candidate, a request dated August 21, 1985 was made for a leave of absence beginning on August 22, 1985. Appellant denied this request.

On September 20, 1985, appellant sent appellee a letter, the body of which reads as follows:

"On August 21, 1985, you submitted a request for an extended leave of absence to seek political office in the City of Cleveland. Without regard to knowing whether or not this administration would accept your request for a leave, you filed petitions to become a candidate for Councilman. As of this date, you still have not contacted this office relative to the disposition of that requested leave of absence.

"Prior to your departure from the Clerk's Office, you made a verbal inquiry to the personnel office regarding this administration's position on employees seeking political office, however this position was not presented to you before you filed with the Cuyahoga County Board of Elections.

"Since that time, this administration, after careful review and consideration, feels that your resignation, and not a leave of absence, would be warranted at this time.

"Therefore, the Clerk would require your written letter of resignation to be received no later than Monday, September 30, 1985 at 4:00 P.M.

"If this office is not in receipt of your resignation by that date, we will assume that you do not intend to comply with the request and your employment will be terminated."

Appellee did not respond to appellant's letter and, on October 30, 1985, appellant sent another letter to appellee, the body of which reads as follows:

"As of this date, this office has not received your written resignation that had been requested from you in our letter mailed to you on September 20, 1985.

"As was previously mentioned in that letter, had we not heard from you regarding your employment by Monday, September 30, 1985, the Clerk's office would assume that you do not intend to submit a letter of resignation and you would thereafter be terminated as an employee with this office.

"Therefore, as a result, your employment record reflects that you have been dismissed as of October 1, 1985.

"Should your campaign for Councilman not be successful, this office would consider your application should you desire to be re-employed with the Clerk of Courts office."

Appellee was thereafter discharged effective October 1, 1985.

Based on the above evidence, the trial court granted appellee's motion for summary judgment. The case proceeded to a bench trial on the issue of damages, and this appeal follows.

Appellant's first and third assignments of error raise similar issues and will be discussed jointly. They state:

"I. The common pleas court erred in granting summary judgment for plaintiff-appellee where plaintiff-appellee's complaint failed to state a claim upon which relief could be granted."

"III. The common pleas court erred in granting summary judgment for plaintiff-appellee where plaintiff-appellee was not constitutionally protected from being discharged for becoming actively involved in a partisan election campaign."

Appellant argues the trial court erred in granting appellee's motion for summary judgment where appellee's complaint sought relief on the basis of alleged violations of Sections 2 and 11, Article I of the Ohio Constitution. Appellant contends that under the circumstances of the present case, there is no right to the relief sought directly under these provisions of the Ohio Constitution.

Appellee, on the other hand, argues that the courts of Ohio have long since allowed implied causes of action from alleged violations of state constitutional and civil rights. See, e.g., Jeffries v. Ankeny (1842), 11 Ohio 372, 374; Anderson v. Millikin (1859), 9 Ohio St. 568, 580. Appellee also argues that the common pleas courts have inherent jurisdiction to hear and adjudicate a cause of action based upon the Constitution of this state. See, e.g., Section 16, Article I of the Ohio Constitution; Restatement of Torts 2d (1965), Section 874A. The trial court failed to address the issue of an implied cause of action under the relevant sections of the Ohio Constitution and, instead, noted that the "gist of this action is one for wrongful discharge in violation of plaintiff's constitutional rights under Ohio law." We agree with the trial court. ¹

At the time appellee was allegedly wrongfully discharged, Ohio did not recognize a cause of action for tortious wrongful discharge from employment. Fawcett v. G.C. Murphy & Co. (1976), 46 Ohio St.2d 245, 75 O.O.2d 291, 348 N.E.2d 144; South v. Toledo Edison Co. (1986), 32 Ohio App.3d 24, 513 N.E.2d 800. Consequently, appellee brought the present action, we presume, alleging an implied cause of action based on Sections 2 and 11, Article I of the Ohio Constitution. ² However, prior to the trial court's journalization of its decision in the present case, the Ohio Supreme Court announced its decision in Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981, which recognized that a cause of action for wrongful discharge in violation of public policy may be brought in tort. Id., paragraph three of the syllabus. The Supreme Court went on to hold "that public policy warrants an exception to the employment-at-will doctrine when an employee is discharged or disciplined for a reason which is prohibited by statute." Id. at 234, 551 N.E.2d at 986. In Greeley, the court concluded that the plaintiff stated a cause of action for wrongful discharge in violation of R.C. 3113.213(D). Id. at 235, 551 N.E.2d at 987. R.C. 3113.213(D) provides in pertinent part that "[n]o employer may use an order to withhold personal earnings [to ensure payment of child support obligations] * * * as a basis for a discharge of * * * an employee * * *." See, also, Shaffer v. Frontrunner, Inc. (1990), 57 Ohio App.3d 18, 566 N.E.2d 193 (holding that R.C. 2313.18 legislatively announces public policy sufficient to support a cause of action for tortious wrongful discharge where the plaintiff and her mother are terminated from their employment due to plaintiff's missing work to attend jury duty).

In the present case, appellee argues that an implied cause of action for wrongful discharge exists under Sections 2 and 11, Article I of the Ohio Constitution. Appellee further claims to be an unclassified civil service employee and to be expressly permitted to engage in political activity and expression pursuant to Ohio Adm.Code 123:1-46-02(E). Appellant, on the other hand, argues that appellee was in the unclassified civil service of the city of Cleveland, a charter municipality, which is not governed by the relevant provisions of the Ohio Administrative Code.

R.C. 1901.32(F) provides, in pertinent part, that "[i]n the Cleveland Municipal Court * * * the chief deputy clerks * * * are in the unclassified civil service of the City of Cleveland * * *." Moreover, R.C. 1901.32(F) provides, in pertinent part, "[a]ny appointee under sections 1901.01 to 1901.37 of the Revised Code may be dismissed or discharged by the same power which appointed him." Accordingly, we conclude that deputy clerks of the Cleveland Municipal Court are within the jurisdiction of the Civil Service Commission of the city of Cleveland. Moreover, Ohio municipalities such as the city of Cleveland have general home-rule authority to regulate the appointment, removal, qualifications, compensation and duties of its offices and employees. State Personnel Bd. of Review v. Bay Village Civ. Serv. Comm. (1986), 28 Ohio St.3d 214, 216, 28 OBR 298, 300, 503 N.E.2d 518, 520. Provisions in a municipal charter with reference to civil service discontinue the general law on the subject as to that municipality. State ex rel. Lentz v. Edwards (1914), 90 Ohio St. 305, 310, 107 N.E. 768, 768; State Personnel Bd. of Review v. Bay Village Civ. Serv. Comm. (Jan. 6, 1986), Cuyahoga App. No....