Judge denies county's request in former Children Services director litigation

Visiting Judge Dale A. Crawford has denied a motion for judgment by the defense in the case (No. 12CV158) of Wendy Jacobs vs. Highland County Board of Commissioners, et. al.

According to the case record from Highland County Common Pleas Court, the defendant's motion for judgment on the pleadings were pursuant to Civ. R.12 (c) and the defendants claim that "assuming everything set for in plaintiff's complaint is true, there is no issue of material fact and defendants are entitled to judgment as a matter of law."

The court disagreed.

Jacobs, the former director of Highland County Children Services, filed her complaint on April 20, 2012 against the Highland County Board of Commissioners and the Highland County Department of Job and Family Services/Child Support Enforcement and Child Protective Services Agency, alleging that her August 2011 termination from her position of Social Services Supervisor violated a 'well-established public policy' against such termination.

Commission President Shane Wilkin has said the board would have no comment on the pending litigation.

Jacobs alleges that the defendants "were willful, wanton and malicious in nature."

She is asking for full reinstatement and damages to be determined at trial, including: "Lost pay and benefits resulting from the termination of Plaintiff's employment; compensatory damages; punitive damages; pre-and post-judgment interest at the rate allowed by law; attorney fees, costs and expenses incurred in the investigation and prosecution of this action; and any further relief which the Court deems just, proper and equitable under the circumstances. "

According to the suit, filed by attorney Stephen A. Simon, Jacobs was hired in 2006, and in September 2007 she was promoted to the agency's executive director.

"Over her strong objection-and the objection of many others-the Highland County Board of Commissioners decided, on December 22, 2010, to merge Highland County Children Services with Highland County Job & Family Services to create the Highland County Department of Job and Family Services/Child Support Enforcement and Child Protective Services Agency," according to the suit.

"The merger resulted in the elimination of the position of Children Services Executive Director, effective June 30, 2011. During the transition leading up to the merger, Ms. Jacobs continued to serve as Children Services' Executive Director and performed admirably, as reflected in her final job review, dated June 6, 2011.

"Regarding the oversight of the 'delivery of child proactive services,' the Children Services Board gave Ms. Jacobs the highest score possible. Ms. Jacobs was offered the position of Social Services Supervisor with the new agency created by the merger. Although Ms. Jacobs feared that the County was moving her into a position with less job security in order to ultimately sever her employment with the County, she nevertheless accepted the offer."

On May 11, 2011, Jacobs sent a letter to the county commissioners addressing concerns about the pending move and merger with Job and Family Services, writing: "Highland County Children Services is requesting assistance in the physical move to JFS. There are several tasks that need to be accomplished, and the current staff does not have the time to complete them. With current caseload sizes, the staff are already working overtime weekly to meet mandates."

Jacobs began serving as a social services supervisor in July 2011.

As previously reported in The Highland County Press, in December 2010 the Highland County Board of Commissioners – which was then comprised of Gary Heaton, Shane Wilkin and Tom Horst – voted 3-0 to merge the Highland County Children Services agency with the Highland County Department of Job and Family Services.

"On Aug. 3, 2011, (Jacobs') new direct supervisor, Deborah K. Robbins, the director of the merged agency, called Ms. Jacobs into a meeting to advise her that she was being suspended, effective immediately. At the suspension meeting, Director Robbins told Ms. Jacobs that she had received complaints from two of Ms. Jacobs's subordinate employees, which stemmed from a prior meeting between Ms. Jacobs and these two employees. The subject of the prior meeting was the subordinate employees' clear failures in monitoring a case file where an infant child tragically died."

In August 2011, Robbins told The HCP, regarding Jacobs' termination, that "the choice was made based on what was going to be best for the agency as a whole."

Judge Crawford wrote in this month's ruling that "Both counsel for the plaintiff and defendants have done an excellent job providing this court with all of the cases applicable to the issue of public policy employment termination. (The) plaintiff at the time of her termination was a probationary public employee. Absent an employment contract, an at-will-employee may be terminated at any time for any lawful reason or for no reason at all.

"However, in 1990, the Ohio Supreme Court, following a majority of the courts throughout the United States, recognized a public policy exception to the employment-at-will doctrine if an employee is terminated in violation of a statute. The Supreme Court in 1994 expanded the "violation of a statute" exception. …

The court reiterated the elements a plaintiff needs to prove to prevail in a public policy employment claim:

• That clear public policy existed and was manifest in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element).

• That dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy (the jeopardy element).

• The plaintiff's dismissal was motivated by conduct related to the public policy (the causation element).

• The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).

"The clarity and jeopardy elements of the test are issues of law for the court's determination; the causation and overriding justification elements are questions for determination by the fact finder.

Since the court has held that elements 3 (causation) and 4 (overriding justification) are factual issues, this court will only deal with elements 1 (clarity) and 2 (jeopardy).

"With respect to the "clarity" element, the Dohme Court held at p. 172 of 130 Ohio St. 3d: 'in an action claiming wrongful termination, the terminated employee must assert and prove a clear public policy deriving from the state or federal constitutions, a statute or administrative regulation, or the common law…"

"Based on the foregoing, we conclude that to satisfy the clarity element of a claim of wrongful discharge in violation of public policy, 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.

A general reference to workplace safety is insufficient to meet the clarity requirement.

"Defendants have not provided this court any legal or factual matters that rebut the plaintiff's claim that the cited statute and administrative rules provide plaintiff with a public policy claim. This court and the defendants are not sure whether the plaintiff is making a claim based upon the facts alleged in the complaint asserting that there was a plan to terminate the plaintiff before the merger took place.

The plaintiff is hereby ordered to file a more definite statement pursuant to Civ. R. 12 (E) to advise defendants whether she is making a claim based upon paragraphs 13-15. If a claim is sought, the plaintiff shall state in the amended complaint or definite statement the basis for the claim.