Jackson v. Kurtz

• Decision Date: 12 December 1979
• Parties: , 19 O.O.3d 105 JACKSON, Appellant, v. KURTZ et al., Appellees. *
• Court: Ohio Court of Appeals

Page 152

65 Ohio App.2d 152

416 N.E.2d 1064, 19 O.O.3d 105

JACKSON, Appellant, v. KURTZ et al., Appellees. ^*

Court of Appeals of Ohio, First District, Hamilton County.

Dec. 12, 1979.

Syllabus by the Court

1. A permanent employee in the classified service who was suspended for three days without pay may bring an action in the Court of Common Pleas against her superiors for damages and injunctive relief by reason of deprivation of rights pursuant to Section 1983, Title 42, U.S.Code, because Congress did not specify that the federal courts shall have exclusive jurisdiction of such an action and thus the state courts have concurrent jurisdiction.

2. R.C. 124.34 gives an employee in the classified service a right to tenure during good behavior and efficient service (a "claim of entitlement") that cannot be reduced, suspended or removed except for the specific causes listed therein, even though she may be suspended for five days or less (now, three days or less) without being entitled to a copy of the suspension orders stating reasons and even though she has no right of appeal.

3. An employee in the classified service has a property right in unabused employment and a liberty right to be free from defamation directly affecting her employment, and may bring an action under Section 1983, Title 42, U.S.Code, against her superiors when wrongfully suspended for five days or less (now, three days or less), even though she has no right of appeal through state procedures, such a suspension not being de minimis under Section 1983.

Lucas, Prendergast, Albright, Gibson, Newman & Gee and James E. Melle, Columbus, for appellant.

William J. Brown, Atty. Gen. and Terence Gray Jones, Asst. Atty. Gen., for appellees.

BLACK, Judge.

Plaintiff-appellant, Arlee M. Jackson, appeals from the dismissal of her complaint under Civ.R. 12(B)(6), thus presenting the question whether under her allegations she can prove any set of facts entitling her to relief. O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753; Conley v. Gibson (1957), 355 U.S. 41, 45 to 46, 78 S.Ct. 99, 101 to 102, 2 L.Ed.2d 80. We reverse the judgment because one of plaintiff's "counts" states a claim under Section 1983, Title 42, U.S.Code, upon which relief can be granted.

Plaintiff was suspended for three days without pay from her permanent position in the classified civil service of Ohio at Longview State Hospital, allegedly for falsifying the reason she was absent from work on a certain day. Plaintiff alleges that she called in that morning and advised the authorities that she would not cross a picket line. She further states that while this reason was originally noted on the hospital records, defendants Myers R. Kurtz (Superintendent) and Pauline Pryor (Labor Relations Specialist) allegedly caused this record to be falsely changed to show that she called in sick and that this change was made with intent to do her harm and damage. She says that she was later ordered to a disciplinary hearing without notice of the specific charges against her; that she was given no opportunity to give evidence on her behalf other than her own statements; that she was not permitted to compel the attendance and testimony of unwilling witnesses; and that the authorities who investigated and brought the charges also sat in judgment on them.

Plaintiff sued defendants Kurtz and Pryor for damages in the amount of three days' pay, expungement of the suspension from her personnel file, punitive damages, costs and attorney fees. She alleged three "counts": a right to recover personally against defendants under Section 1983, Title 42, U.S.Code (hereinafter Section 1983); a violation of contractual rights under the collective bargaining agreement between her union and the state; and a violation of her equal protection rights under the United States Constitution. Plaintiff presents four assignments of error. The last three are subsumed under the first one, the substance of which is that the court erred in dismissing the complaint. ¹ We will first consider whether the second or third count states a claim on which relief can be granted.

The claim based on contractual violation (second count) has no validity. A public employee holds his position as a matter of law and not of contract. Fuldauer v. Cleveland (1972), 32 Ohio St.2d 114, 290 N.E.2d 546; State ex rel. Gordon, v. Barthalow (1948), 150 Ohio St. 499, 83 N.E.2d 393. The discipline of an employee in the classified service is governed exclusively by statute. See Anderson v. Minter (1972), 32 Ohio St.2d 207, 291 N.E.2d 457. The statutory scheme is sufficiently complete and specific to provide the exclusive, nonnegotiable scheme for reduction in pay or position, suspension or removal in the classified service. Dismissal of the second count was proper.

The claim based on equal protection rights (third count) is also without merit. Therein plaintiff alleged that she was disciplined in an unequal manner because the defendants did not suspend all employees who failed to report to work because they honored the picket line. If the third count is construed to assert a violation of constitutional rights as part of her claim under Section 1983, it is redundant because it makes the same allegations as the first count, hereinafter considered. On the other hand, if it is construed to assert an independent right to damages and expungement for violation of constitutional rights, it does not state a cause of action. Such an independent constitutional claim is not brought pursuant to enabling legislation which creates personal liability for unconstitutional official conduct and which authorizes both legal and equitable relief. This would be a suit against the state for violation of constitutional rights. Anderson v. Minter, supra, states in the first paragraph of the syllabus:

"A complaint filed in the Common Pleas Court by a civil service employee seeking to test the legality, under the provisions of R.C. 143.27 (now R.C. 124.34), of an order of the appointing authority suspending such employee for five days or less does not state a cause of action."

The Supreme Court, in Anderson v. Minter, supra, dismissed a complaint alleging, as does plaintiff in the third count, that the appointing authority was not entitled to suspend her for five days and demanding lost pay and expungement. The court stated that the legislature provided other remedies against appointing authorities who abuse their official power to suspend. We take it that the claimed illegality might include violations of constitutional as well as statutory requirements.

However, the instant complaint alleges a valid claim for relief in the first count because it sets forth a claim under Section 1983, which reads in full as follows:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Plaintiff's allegations fall within the purview of this statute because she seeks redress against two persons in official positions under state law who allegedly deprived her of her liberty or property or both without due process as guaranteed by the Fourteenth Amendment. The purpose of the statute is to give a remedy to parties deprived of rights arising under the Constitution and laws by an official's abuse of his position, especially where state law or state remedy is inadequate. Monroe v. Pape (1961), 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 592. Assuming as we must that plaintiff's allegations of falsification and abuse are true, we find it inconceivable that she would be without any remedy whatsoever.

Redress under Section 1983 may be had in the form of damages against individual defendants notwithstanding the fact that they hold public office. Scheuer v. Rhodes (1974), 416 U.S. 232, 238, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90. Redress may also be had by injunctive relief (expungement of the record). Goss v. Lopez (1975), 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725. Whether defendants are protected by a qualified official immunity is an issue not before us at this stage in the litigation, because that defense has not been raised, no answer having been filed by defendants before they moved to dismiss the complaint.

Plaintiff's claim under Section 1983 falls within the jurisdiction of the Court of Common Pleas because that court is one of original and general jurisdiction (Section 4, Article IV, Ohio Constitution; R.C. 2305.01) and because Congress allowed suits under Section 1983 to be brought in state courts as well as in federal courts. If exclusive jurisdiction over rights created by federal law is expressly lodged in the federal courts, state courts have no subject matter jurisdiction. Fox v. Eaton Corp. (1976), 48 Ohio St.2d 236, 358 N.E.2d 536. But when Congress does not specify that jurisdiction shall be in the federal courts, state courts have concurrent jurisdiction. We have twice recognized such concurrent jurisdiction: as to certain rights under the Labor-Management Relations Act, in General Electric Co. v. International Union (1952), 93 Ohio App. 139, 108 N.E.2d 211, appeal dismissed (1953), 158 Ohio St. 555, 110 N.E.2d 424; and as to federal price and rent controls, in Tag v. Linder (1949), 87 Ohio App. 302, 94 N.E.2d 383.

Public policy appears to encourage us to accept subject matter jurisdiction of suits filed under Section 1983. Accepting jurisdiction gives aggrieved parties another forum in which to litigate their claims, one which may on occasion be more convenient. State courts should be as open to consider claims of abusive, invidious violations of...