Ohio Supreme Court Limits Classified Employees to Civil Service Commissions to Redress Civil Service Statutory Rights

 Last month, the Ohio Supreme Court reversed the Court of Appeals and held that Ohio law does not permit classified employees to challenge allegedly unlawful reductions in pay in a private lawsuit because the exclusive remedy is an appeal to the applicable civil service commission.  Binder v. Cuyahoga Cty., Slip Op. 2020-Ohio-5126.  In ordering a dismissal of the class action lawsuits, the Court concluded “R.C. 124.34 does not allow a civil service employee to file an action in common pleas court to vindicate alleged violations of the statute by an appointing authority.” Yet although the plaintiffs failed to state a claim for relief, the Court also concluded that the common pleas court still possessed subject matter jurisdiction over the claims because the statutory scheme had not explicitly divested the courts of such jurisdiction.

Following the County’s adoption of a new form of government, an ordinance adopted a uniform workweek and paid lunch break (i.e., 40 hours and 1 hour), while maintaining salary levels.  This apparently disadvantaged employees who had previously worked only 35 hours/week and received 30 minutes for lunch.  Accordingly, class action lawsuits were filed challenging the ordinance and change in working conditions under O.R.C. § 124.34.   The County moved to dismiss on the ground, among other things, that their exclusive remedy was in the civil service system and did not permit class actions. 

The Court noted that plaintiffs who seek redress for statutory violations must first show that the statute provides the requested relief and right of action.   The applicable statute limits when an employee’s compensation may be reduced and the employee has the right to appeal the reduction to the applicable civil service commission within 10 days of receiving the written notice.   However, just as classified employees who are fired or suspended for five or more days can only appeal to the civil service commission instead of filing a lawsuit, classified employees whose pay is reduced can only challenge the reduction through the civil service system.  

While the statute establishes an administrative scheme in which an aggrieved employee can appeal a reduction in pay to the SPBR or the applicable civil-service commission, we see no language in R.C. 124.34, or elsewhere in R.C. Chapter 124, demonstrating the General Assembly’s intent to authorize a civil action in common pleas court for violations of the statute. Had the General Assembly intended to allow civil actions as an avenue of redress, it could have said so expressly, as it has in other instances.

That being said, although the courts did not have the authority under the relevant statutes to grant the requested relief, the Court also found that the common pleas court possessed subject matter jurisdiction over the claims because the statute did not divest the courts of jurisdiction.

With limited exceptions, R.C. 2305.01 grants the courts of common pleas subject-matter jurisdiction over “all civil cases in which the sum or matter in dispute exceeds the exclusive original jurisdiction of county courts.” Because of this general grant of jurisdiction, “a court of common pleas has jurisdiction over any case in which the matter in controversy exceeds the jurisdictional limit unless some statute takes that jurisdiction away.”

               . . . .

           By contrast, R.C. 124.34 does not contain any express statutory language removing common pleas courts’ general jurisdiction. . . .

               . . .

           While R.C. 124.34 does not divest common pleas courts of their general subject-matter jurisdiction, appellees’ claims here for declaratory relief and damages ultimately fail because R.C. 124.34 does not authorize that relief. Stated another way, appellees’ complaints do not present a jurisdictional defect, but rather a failure to state a claim for which relief can be granted.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court: RIFs Can Be Accomplished Through Attrition and Do Not Require Layoffs

 Last week, a divided Ohio Supreme Court affirmed the dismissal of a mandamus action by a number of police officers who sought to be promoted to positions which had previously been abolished by the City Council upon the retirement of the prior incumbents.  State ex rel. Ohio Patrolmen’s Benevolent Assn. v. Warren, Slip Op. 2020-Ohio-5372.  The Court held that when the City Council had already reduced the headcounts for officers to be accomplished upon the next retirement to occur in those positions (i.e., through attrition), vacancies never occurred in those positions into which the next most senior officers could be promoted.  The Court distinguished a prior opinion which reached the opposite result because in this case the City Council reduced the headcounts and abolished the positions “on a prospective basis,” before the retirements and before the creation of a vacancy.  In other words, “[t]he statute does not say that reduction in the force can be accomplished only by layoffs.”

 According to the Court’s opinion, the City of Warren was subject to Ohio’s civil service statutes, including O.R.C. §§124.37 and 124.44.   In 2014, the City Council amended the authorized strength of the police force (in place since 1987) to reduce by one the number of captains, lieutenants and sergeants “through attrition.”  When the next captain and lieutenant retired in 2015 and 2016, their positions were not filled through promotion and were deemed abolished upon the retirement of the incumbents.   The plaintiffs filed a mandamus action because they were next in line to receive the promotions into the captain, lieutenant and sergeant positions.  Initially, the court found that the retirements created vacancies which first had to be filled before the positions could be abolished.  However, after stipulated facts were submitted on reconsideration, the court reversed and granted judgment on the pleadings to the City.  The officers appealed and a divided Supreme Court affirmed in a per curiam opinion.

 The civil service statutes require promotions, or civil service examinations, when a vacancy occurs.   When a position is abolished, the employee with the lowest seniority in that rank is demoted to the next lower rank, which then demotes the least senior employee of that rank and so on until the least senior officer is laid off.  The plaintiffs argued that positions cannot be abolished through attrition and can only be abolished after a vacancy created by a retirement is filled through promotion.  However, the Court of Appeals found “nothing in [R.C. 124.44 and 124.37] prohibit[s] the City from accomplishing a reduction in force by attrition” and that “attrition is the least disruptive means of all possible methods to reduce the force” inasmuch as “[n]o officer was laid off, and no officer needed to be demoted.”  In other words, “the present case involves ‘attrition’ in the sense of automatic abolishment upon the former officers’ retirement, preventing a vacancy from occurring in the first place.”   

The City pointed out that the “statute does not say that reduction in the force can be accomplished only by layoffs. . . . Nothing in the statute suggests that the appointing authority may not abolish a position unless it is simultaneously demoting someone from that position.”  Instead, the statutes merely point out the order of demotions (starting with the least senior employees) should an abolishment occur in a position held by an incumbent.   Further, the plaintiffs were arguing for the creation of a fiction by the promotion of individuals who would be almost immediately demoted with the abolishment of the position.  The Court agreed that “[o]nce the incumbent’s position has been validly disestablished, then a vacancy simply does not occur upon his retirement.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Court of Appeals Finds Employee Has Right to Challenge Termination in Court to Determine Fall-Back Rights

Earlier this week, a divided Franklin County Court of Appeals reversed the 12(B)(6) dismissal of a declaratory judgment action seeking a determination about whether an unclassified civil service employee had been fired for cause.   Harris v. Dept. of Veterans Servs., 2018-Ohio-2165.  The employee alleged at the SPBR that he had been fired in retaliation for making a whistleblower complaint.  He then withdrew that that charge and filed a mandamus action and declaratory judgment action seeking his fall-back right to a classified civil service position he held four years earlier.   The court’s majority refused to rule on the mandamus claim because it was premature in that he could only seek fall-back rights if he had been fired without cause and his termination notice notified him that he was fired for cause.  However, the court’s majority found that the trial court had abused its discretion in dismissing the declaratory judgment action because he was entitled to a determination of whether or not his termination had been with or without cause.  The dissent observed that his whistleblower claim was subject to the jurisdiction of the SPBR and, thus, he was required to have brought such a claim before the SPBR instead of in court.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Appellate Court Finds Dismissal Without Cause of Probationary Civil Service Employee Violates Public Policy

Editor's Note:  This case was reversed by the Ohio Supreme Court on August 20, 2019.

Earlier this month the Franklin County Court of Appeals reversed the 12(B)(6) dismissal of the wrongful discharge claim of a civil service employee who was fired during his probationary period only six days after receiving a satisfactory performance evaluation allegedly because of the negative publicity that surrounded his hiring and prior employment.  Miracle v. Ohio Dept. of Veterans Servs., 2018-Ohio-819.  The Court found that the complaint stated a valid claim as a matter of law that it is illegal to terminate a civil service employee during his or her probationary period when the employee is performing his or her job duties satisfactorily.  In other words, the Court found a just-cause termination standard to be implied as a matter of public policy from the civil service statute during the initial probationary period even if the employee does not have the right to appeal to the applicable civil service commission.  Therefore, while civil service employees who successfully survive their probationary period can appeal only to the Board of Review or civil service commission, probationary employees can challenge their terminations in court.  That being said, this case illustrates one of my favorite practice pieces of advice: it is always risky to terminate an employee without a good reason following a satisfactory performance evaluation.

According to the Court’s opinion and based on the allegations of the complaint, the plaintiff allegedly explained during his job interview that he had been fired by another state agency following an investigation into an earlier prison escape where he formerly worked.    Assured that was not a problem for the current position, he was hired and received a satisfactory performance evaluation four months later.  Six days after that, he was terminated and refused any explanation because he was still a probationary employee.  He alleged that he was fired because an employee in the Governor’s office sought his dismissal to end negative publicity surrounding his hiring after his earlier termination by a different state agency.  There were apparently no allegations that anyone at the State benefitted personally from his termination or that it was in retaliation for engaging in protected conduct which a statute seeks to encourage.   The State moved to dismiss, which the Court of Claims did on the grounds that the complaint failed to state a claim upon which relief could be granted, even if the allegations were true.

In evaluating public policy wrongful discharge claims, “[t]he clarity and jeopardy elements, which involve relatively pure legal and policy questions, present questions of law” which are reviewed on a de novo basis.  The plaintiff alleged 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."   . . .  In other words, [the plaintiff] 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.

The trial court had evaluated the allegation to preclude any termination of a probationary employee and found there to be no such public policy.  While the Court agreed that was true, it also found that the trial court misconstrued the alleged public policy, which – as an appellate court reviewing an issue of law de novo – it concluded did exist.  Therefore, it sustained the plaintiff’s claimed error and remanded the case to proceed with discovery. 

The civil service statute at issue – R.C. §124.27(B) -- provides in relevant part:

(B) All original and promotional appointments in the classified civil service, including appointments made pursuant to section 124.30 of the Revised Code, but not intermittent appointments, shall be for a probationary period, not less than sixty days nor more than one year, to be fixed by the rules of the director for appointments in the civil service of the state . . . . No appointment or promotion is final until the appointee has satisfactorily served the probationary period.   If the service of the probationary employee is unsatisfactory, the employee may be removed or reduced at any time during the probationary period.  If the appointing authority decides to remove a probationary employee in the service of the state, the appointing authority shall communicate the removal to the director. A probationary employee duly removed or reduced in position for unsatisfactory service does not have the right to appeal the removal or reduction under section 124.34 of the Revised Code.  (italics added for emphasis).

In a slightly different claim, the plaintiff alleged that Ohio public policy prohibits the abuse of power by officials, which the State conceded.  The Court then observed that the plaintiff would need to allege and prove that the alleged public policy was jeopardized by his discharge, but that the defendants had made a different argument in moving to dismiss.   Although the State argued that there was no private right of action under R.C. 124.56, the Court observed that this is whole point of public policy claims – to create a remedy where none otherwise exists when the public policy would be jeopardized.  Also, the complaint sufficiently alleged misconduct by the named defendants when they complied with the directions to resolve inconvenient “political optics.”  Finally, the fact that the defendants had the power and authority to dismiss probationary employees did not resolve the jeopardy question when it was alleged that their exercise of that power and authority violated the public policy against abuse of power.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Court Rejects FMLA Objection to Demotion During Probation Because of Temporary Injury

Earlier this month, the Montgomery County Court of Appeals denied the FMLA objection of a firefighter recruit who was unable to complete his training during his six-month probationary period because of a work-related injury during that training. Geisel v. Dayton, 2018-Ohio-512.  The Court found that the firefighter never requested or sought a FMLA leave of absence; opting instead to take restricted duty with pay.  It also rejected a workers compensation retaliate claim.  Rather, the Court found that the Civil Service Commission was entitled to demote the firefighter to his EMT position even though he was unable to physically perform those duties because of the same injury. 

According to the Court’s opinion, the firefighter took and passed the civil service examination for the firefighter eligibility list.  Thereafter, he was hired as an EMT and presumably passed the probationary period for the EMT position.  About two months after starting his firefighter training, he injured his knee during training and was unable to complete the training before his class graduated in June (following the expiration of the eligibility list).   The decision does not indicate how long he was incapacitated.  He apparently was placed on restricted (i.e., light) duty.  A month after the firefighter had been injured, the Director recommended that he be demoted back to his EMT position (even though he was temporarily unable to perform those duties because of the same injury) and that decision took affect a few weeks later.  Concerned that he would not be rehired as a firefighters before he was age-restricted even if he took and passed the next firefighter examination, he appealed the civil service decision.

As mentions, the Court rejected his argument that the demotion violated the FMLA because he never sought nor took FMLA leave.  Instead, he took restricted (light) duty.  Second, the Court rejected his workers compensation retaliation claim.  Not only did he fail to allege a retaliatory motive, he never sought nor obtained temporary total disability nor was demoted because of absenteeism under Coolidge v. Riverdale Local School District.   Finally, the civil service rules permitted the demotion of an employee who is unable to successfully complete a probationary period due to injury.

While the Court implied that the age restriction might not apply since he had been hired once as a firefighter and noted that he was not restricted from reapplying for a firefighter position, it observed that he:

had six months from the date of his appointment to Firefighter Recruit in which to “qualify,” or in other words, to complete his recruit training.  The rule does not invest an employee who fails to qualify during this six month period with the right to make subsequent attempts without interruption, meaning that Geisel’s appointment to Firefighter Recruit was, in plain language, a one-shot opportunity.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

The Different World of Public Sector Employment When Plaintiff’s Retirement After His Termination Results in Dismissal of Discrimination Lawsuit

Last week, the Hamilton County Court of Appeals affirmed judgment on the pleadings for a public employer on a disability discrimination claim on the basis that the plaintiff could not prove an adverse employment action or constructive termination when he admittedly retired during the pendency of a civil service commission appeal of his termination in order to preserve his retirement benefits. Daudistel v. Village of Silverton, 2014-Ohio-5731.  In this case, the plaintiff had been employed as the Village Police Chief when he required time off from work to combat cancer and was faced with repeated efforts by the City Manager to reduce and terminate his employment upon his return. (The City Council rejected each of the City Manager’s efforts).  Nonetheless, after the plaintiff was eventually placed on administrative leave and terminated, he appealed to the Civil Service Commission.  The Commission has a local rule which will dismiss any charges of misconduct if the employee resigns his employment before the Commission rules on the propriety of the discharge.    The plaintiff retired during the pendency of his civil service appeal, which was then dismissed by the Commission and affirmed on appeal by the common pleas court. The plaintiff then brought a lawsuit alleging disability discrimination and harassment, which was dismissed without opinion after the employer sought judgment on the pleadings.  The Court of Appeals affirmed on the basis that the plaintiff’s retirement was voluntary and, therefore, could not be an adverse employment action.  The Court rejected his arguments that he was constructively terminated (i.e., forced to retire) by the City Manager’s efforts to terminate his employment and rejected the employer’s argument that the prior civil service appeal constituted either res judicata or collateral estoppel.

The Court concluded that the plaintiff had not been actually terminated because his retirement converted the City Manager’s attempt to discharge him into a resignation.  It similarly rejected his argument that the prior attempts to terminate him qualified as adverse employment actions or harassment because they had been rejected by the City Council.   As for constructive discharge, the Court found that the plaintiff’s decision to retire – while opposing the decision to discharge him before the Civil Service Commission – had been entirely voluntary because he could have chosen to continue his civil service appeal instead of retiring.

 

“The test for constructive discharge “is whether the employer’s actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign.” . . . . 

The effect of Rule 14.01, as applied to Daudistel, and as he well knew, was to convert Daudistel’s termination into a resignation and to protect his retirement benefits. Daudistel elected to resign, even though  he had the opportunity to contest his firing, and, thus, he cannot now claim that the Village wrongfully terminated him—actually or constructively.

 

This decision is surprising because a private sector employer would not be able to force an employee to choose between collecting retirement benefits (which the employee was otherwise qualified to receive) and pursuing a claim for constructive discharge or challenging an allegedly discriminatory employment termination.   A court faced with similar facts in the private sector would have considered whether the employer’s actions and the plaintiff’s termination created an intolerable working environment instead of giving precedence to a local civil service rule over a state or federal law.   There also would have been consideration of the amount of time the plaintiff lacked an income due to the employer’s actions.   It is because of this that employers enter into settlement agreements with plaintiffs to convert terminations to resignations in exchange for the dismissal of the litigation.  If private sector employers could avoid discrimination litigation simply by imposing their own rules about converting terminations to resignations when elderly employees collect retirement benefits, there would be far fewer lawsuits.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Appeals Court: Fire Chief Properly Terminated for Inappropriate Comments

Last week, the Fairfield County Court of Appeals affirmed the termination of a Township Fire Chief for making a racially insensitive joke while still on probation for an earlier, unrelated event.  Mathias v. Pleasant Twp. Bd. of Trustees, 2014-Ohio-3019.   The Court made clear that management can be held to a higher standard of conduct than subordinates and enforcement of an anti-harassment/discrimination policy does not require the existence of a specific victim.  In particular, the Court found that the terminated chief had made a joke in the presence of three white firefighters that he did not have a problem with black people because “everyone should own one” or “everyone should have one.”  One of the firefighters reported it to the Assistant Chief, who mentioned it to a Township Trustee.  Written statements were taken and the Chief was confronted.   He later explained that he and the department’s lone black employee had a friendly and joking relationship where they made jokes with each other about historical racism, including segregated parking, bathrooms and drinking fountains.  The black employee testified as a witness in support of the terminated chief. There was no evidence that anyone had felt offended or harassed by the Chief’s statements or that anyone thought he was a racist.  The Chief also pointed out that other firefighters had made similar statements without any complaint or investigation.  Nonetheless, the Court agreed that the Chief had violated Department policy against making such statements and for engaging in unbecoming and undignified behavior.

While appellant contends that he committed no act pursuant to such section which would justify his termination, we disagree. Appellant admittedly made a racially derogatory comment. While appellant argues that [the sole black firefighter] and other firefighters also made similar jokes, appellant was the Chief of the Fire Department and set the tone and morale for the department as a whole. During the hearing, appellant himself admitted that it was probably not appropriate for him, as the Acting Fire Chief, to make the racial statements that he did.

In addition, the Court agreed that the Chief had “clearly” violated the Department’s anti-harassment/discrimination policy, which could justify dismissal on a first offense – even without the existence of a specific victim.  The policy provided:

 

“316.02 - Sexual, ethnic, racial and religious harassment is an offense first against this department and second an offense against the employee or group of employees. Offense refer to physical, verbal or implied actions that have the purpose or effect of creating a hostile, offensive or intimidating working environment or has an ethnic, racial, religious or sexual basis, or both. Examples would include but are not limited to: physical contact of sexual nature; sexual, racial, ethnic, or religious jokes, comments, insults, audio/visual material, cartoons, innuendoes or personal conduct or mannerisms that could be construed as offensive.”

The Court also rejected the Chief’s procedural arguments about, for instance, the timing of his suspension, consideration of documents about the earlier event which caused him to be placed on probation,  and the conduct of the investigation by the Assistant Chief who was made Acting Chief and ultimately promoted to replace him.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court: Classified Employees Have Fallback Rights Even if Duties Change and Become Unclassified

This morning, the Ohio Supreme Court issued a decision affecting current and former state civil service employees. State ex rel. Barley v. Ohio Dept. of Job & Family Servs., Slip Opinion No. 2012-Ohio-3329. In that case, an employee who had been hired in 1989 and had been promoted into other classified civil service positions as a hearing officer was fired in 2006. He appealed through SPBR, which found that duties added to his position in 2004 rendered his formerly classified position as unclassified. He tried to argue that he was then entitled to fall-back rights under Ohio Revised Code §124.11(D), but the SPBR refused to consider this argument and its decision was affirmed on appeal to the Franklin County Court of Common Pleas. In 2008, he requested ODJFS to recognize his fall-back rights under ORC 124.11, and filed a mandamus action in 2010 with the Court of Appeals when ODJFS refused. The appellate court found that he was never appointed to the unclassified position when the character of the position changed upon the assignment to him of unclassified duties in 2004. The Supreme Court reversed, finding that the restrictive interpretation of “appointment” could deprive most classified employees of their fall-back rights and that the plaintiff’s arguments were not barred by collateral estoppels or res judicata.

In relevant part, ORC 124.11(D) provided in 2004 that:

An appointing authority whose employees are paid directly by warrant of the auditor of state may appoint a person who holds a certified position in the classified service within the appointing authority's agency to a position in the unclassified service within that agency. A person appointed pursuant to this division to a position in the unclassified service shall retain the right to resume the position and status held by the person in the classified service immediately prior to the person's appointment to the position in the unclassified service, regardless of the number of positions the person held in the unclassified service. Reinstatement to a position in the classified service shall be to a position substantially equal to that position in the classified service held previously, as certified by the director of administrative services.

The appellate court found that the mere assignment of duties to the plaintiff in 2004 did not constitute an “appointment” to an unclassified position (even though the practical affect was to render it an unclassified position because classified status depends on duties, not job titles).

[I]t is evident that a position’s status as classified or unclassified cannot be determined without considering the duties associated with the position. This is consistent with our longstanding precedent that the job title or position classification used by the appointing authority is not dispositive on the issue whether a public employee is in the classified or unclassified service and that the true test requires an examination of the duties actually delegated to and performed by the employee.

Therefore, when ODJFS assigned additional duties to [the employee] that changed his position from the classified service to the unclassified service, it appointed him to the unclassified position, regardless of whether his position title remained the same. ODJFS placed its employee, . . ., in an unclassified position by assigning him duties that took the group of duties to be performed by him outside the classified service.

The Court declined to treat as a binding admission a statement made by the employee during the SPBR proceedings that he had never been appointed to an unclassified position and had only ever held classified positions because the statement was made in the context of disputing his suspension and termination.

The Court found that affirming the Court of Appeals

would permit state employers desiring to remove classified employees without the just cause required by R.C. 124.34 to change the employees’ job classification to the unclassified service by adding new duties that are inconsistent with classified service, which would then both deprive the employees of the ability to contest any removal from state employment and simultaneously strip them of their R.C. 124.11(D) statutory right to fall back to their prior classified positions. In effect, state employers could decide which employees would have fallback rights and which employees would not. The General Assembly could not have intended such an unreasonable result.

The most surprising discussion in the decision was the Court’s decision to not bar the claim due to res judicata in that the employee did raise the issue before the SPBR and could have raised it on appeal. This was the alternative basis of the denial before the appellate court.

It is true that “[r]es judicata, whether claim preclusion or issue preclusion, applies to quasi-judicial administrative proceedings.” . . . . . But the court of appeals erred in concluding that [the employee] could have raised the issue of whether he was a classified employee in 1998 in his previous administrative appeals. Those appeals were limited to the issue whether [the employee] was a classified employee when he was suspended and ultimately removed from his employment with ODJFS in 2005 and 2006. In fact, when [he] attempted to raise the issue of his fallback rights under R.C. 124.11(D) in his first administrative appeal, his attempt was rejected and the SPBR expressly limited the appeal to a consideration of his job duties from September 2004 to December 2005. [His] classified status in 1998 was irrelevant to his administrative appeals. Therefore, the court of appeals erred in concluding that res judicata barred [his] contention that he was entitled to fallback rights.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Court of Appeals: Whistleblower Protection Is Not Available When Employee Submitted Complaint to OIG Which She Did Not Write Herself.

Yesterday, the Franklin County Court of Appeals affirmed the dismissal of a civil service proceeding where an administrative assistant was placed on 30-day suspension for submitting a complaint to the Office of Inspector General about an incident in her workplace because her husband wrote it for her and she was less than honest about the circumstances during the investigation. Ressler v. Ohio Dept. of Transp., 2009-Ohio-5857. The Court agreed that she was not entitled to protection under Ohio’s Whistleblower statute because her husband wrote the complaint instead of her even though she was the person who admittedly submitted the complaint to the OIG.

According to the Court’s opinion, ODOT’s chief inspector chewed out a number of employees about a missing computer hard drive. The employee heard about the incident after the fact, told her husband about it and later faxed an anonymous complaint about the incident (written by her husband) to the OIG. The complaint said that the investigator twice “threatened employees by saying he was going to drop a bomb on District 5” if the hard drive did not appear by quitting time on Friday. The investigator allegedly "said it he was acting like a mad man. He was shaking his finger in the employees [sic] faces. He would ask a question but before you could answer he would start yelling again." The complaint also indicated that employees were afraid and did not want to return to work unless the investigator was removed. Remarkably, the OIG treated this as a bomb threat.

In its subsequent investigation, the employee initially denied any involvement in the complaint, but later admitted that she faxed it without reading it or knowing its contents. The OIG’s office found her to be evasive and uncooperative and subsequently wrote the ODOT Director to report that she "committed acts of wrongdoing by sending false statements to this office and providing false testimony under oath." Accordingly, ODOT suspended her for 30 days for failure of good behavior and failing to cooperate in an official investigation. She appealed the suspension to SPBR and claimed protection as a whistleblower under R.C. 124.341. The SPBR dismissed both claims for lack of jurisdiction. The SPBR did not have jurisdiction over a suspension or over whistleblower claims where the employee was not the author of the complaint. On appeal, the trial agreed.

R.C. 12.341 prohibits retaliation against employees who file reports. The relevant portion of the statute provides:

If an employee in the classified or unclassified civil service becomes aware in the course of employment of a violation of state or federal statutes, rules, or regulations or the misuse of public resources, and the employee’s supervisor or appointing authority has authority to correct the violation or misuse, the employee may file a written report identifying the violation or misuse with the supervisor or appointing authority. In addition to or instead of filing a written report with the supervisor or appointing authority, the employee may file a written report with the office of internal auditing created under section 126.45 of the Revised Code.

. . . If an appointing authority takes any disciplinary or retaliatory action against a classified or unclassified employee as a result of the employee’s having filed a report under division (A) of this section, the employee’s sole and exclusive remedy, notwithstanding any other provision of law, is to file an appeal with the state personnel board of review within thirty days after receiving actual notice of the appointing authority’s action.

The clear language of the statue only requires an employee to file a written report. The Court has recognized that “the primary objective of R.C. 124.341 is to protect state employees who report violations or misuse from retaliation." However, notwithstanding this fact, the Franklin County Court of Appeals has refused to protect employees who file reports under this statute unless they also wrote the report. According to the Court:

retaliation based on the mere transmission of a report is tenuous at best, explaining "the statutory scheme clearly contemplates that the employee making the report play a bigger role than that of mere courier . . . We thus concluded an employee's responsibility for delivering the writing is not sufficient to comply with the statute's reporting requirements.

In this case, the employee was indisputably suspended in part for her role in sending the complaint to the OIG. However, she “did not author the letter on which she now relies for whistleblower protection. Although [she] was responsible for the letter's transmission to the appropriate authority, her being a "mere courier," . . . is not sufficient. Simply causing the letter's transmission, without any part in the letter's authorship, does not meet the written report requirement under R.C. 124.341.” Moreover, her suspension was based on more than faxing the complaint to OIG; it was also based on her evasive and uncooperative behavior during the subsequent investigation.

It would be a more interesting case if the employee had claimed to be more than a “mere courier” and had, instead, admitted knowledge and agreement with the contents of the complaint as being the basis for her faxing it to the OIG.

Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-5857.pdf.


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Court of Appeals Affirms Removal of Civil Service Employee Because of Misuse of Employer’s Laptop Computer.

Last month, the Franklin County Court of Appeals affirmed the removal (i.e., termination) of a civil service employee on account of, among other things, failing to sufficiently protect sensitive information on his laptop computer, and failing to cooperate truthfully with the internal investigation. Long v. Ohio Dept. of Job & Family Servs., 2009-Ohio-643. However, the SPBR agreed that the employee had not violated policy by downloading AOL software in order to access his personal email or abused his telephone privileges by making personal telephone calls.

According to the court’s opinion, the employee was an audit manager and was issued a desktop and laptop computer in order to perform his duties. His “position and job responsibilities exposed him to sensitive client-based information related to Medicaid services, including Medicaid recipients' names and Social Security numbers, as well as dates and types of services provided. This information could be accessed via [his] desktop and laptap computers. All employees, including [him], were required to abide by [the employer’s] written work policies, including, as pertinent here, the ‘Standards of Employee Conduct,’ the ‘Computer and Information Systems Usage Policy,’ and the ‘Telephone Usage Policy.’” After the Ohio Inspector General received a complaint that the employee was engaged in fraud, an internal investigation was conducted. When questioned, the employee admitted “that he often permitted his staff to borrow his laptop computer while conducting field audits; however, he did not keep a written record showing to whom he loaned it. At the time of the interview, he was unsure if he had the laptop or if he had loaned it to a staff member.”

In examining the employee’s laptop, it was discovered that he had downloaded personal software onto the computer in order to access his personal email account and that pornography had been viewed. The employee also admitted that his cousin “used his laptop without his permission in early spring 2002; when he realized it was missing, he told [his cousin] to return it. He admitted that he had not properly secured the laptop, even though he suspected [his cousin] may have utilized his AOL account to send pornographic e-mails to women. [The employee] also acknowledged that he made personal long distance and local calls from his office telephone and failed to reimburse the state for those calls.” The cousin corroborated this explanation, although he contended that he sometimes had permission and did not know that the laptop computer was not the employee’s personal property. In reviewing the employee’s desktop computer, it was discovered that “e-mails with attachments containing pornographic photographs had been sent to and opened from the desktop and that at least one pornographic website had been accessed.”

The employer’s “standards of employee conduct and computer usage policies prohibited the downloading or viewing of non-work-related material, including pornographic websites, on state-issued computers.” The employee also argued that “unauthorized downloading of AOL software onto his laptop computer violated [the employer’s] computer usage policy. . . . . [which] prohibited use of computers by persons not employed by [the employer] and mandated that employees secure their computers to prohibit access by nonemployees.” In addition, the employer argued that the employee’s “personal local and long distance telephone calls from his office phone violated [the employer’s] telephone usage policy.”

The Administrative Law Judge did not agree that the employee violated the employer’s policy by downloading AOL software, accessing his personal email or making personal telephone calls. However, the ALJ agreed that the employee should be removed from his state civil service job because, among other things, he violated the employer’s policies in being evasive and providing implausible explanations during the employer’s internal investigation, in permitting and/or causing pornographic websites and other non-work related documents to be accessed on his laptop and desktop computer, in failing to take necessary precautions to prevent his laptop from being used by non-government employees when the laptop contained sensitive client information and was misused by his cousin in accessing and sending pornography, and in violating R.C. 124.34, as he engaged in dishonest and immoral conduct and neglected his duty by engaging in questionable financial dealings, being dishonest during the investigation, and engaging in the conduct described above.

The Court rejected the employee’s arguments that he was treated more harshly than similarly situated employees: “The issue of whether employees are similarly situated sufficiently to merit consideration as evidence of disparate treatment is for the trier of fact, i.e., the SPBR . . . Although the SPBR has discretion to consider evidence of disparate treatment in evaluating the appropriateness of discipline, the Ohio Administrative Code does not mandate absolute uniformity of discipline. 'An employee's discipline must stand or fall on its own merits.' " In any event, one of the allegedly comparable employees was not similarly situated because he was a non-supervisory bargaining unit employee who reported to a different supervisor, and not an exempt manager of ten people. In addition, that employee committed different rule infractions. The only other arguably comparable employee engaged in very different conduct by sending a single email falsely complaining about a subordinate.

Insomniacs can read the full court opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-643.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Appeals Court Guarantees Higher Salary of Classified Employee Who Was Demoted Without Cause from Unclassified Position to Former Classified Position

In late June, the Hamilton County Court of Appeals held that a civil servant carrying the full protections of a classified employee but employed in an unclassified position is entitled to retain the pay of that unclassified position after a demotion back to a civil service job when the demotion was not based upon cause and the employer failed to obtain a signed waiver from the employee (in accordance with its own rules) when temporarily promoting him to the unclassified position (which was later abolished). Gissiner v. City of Cincinnati, No. 2008-Ohio-3161 (6/27/08). The Court held that only O.R.C. § 124 protected a classified employee from a pay cut for no-cause demotion, although it did not provide him with bumping rights because the unclassified position was not covered by the statute.

By way of background, the plaintiff was "temporarily promoted" from classified position of Senior Human Resources Analyst to the unclassified position of acting municipal investigations manager for the City. However, although he received a raise with the promotion he “did not did not sign a waiver giving up his classified status when he changed positions.” When the managerial position was later abolished in a reorganization, he was returned to his former classified position and the lower pay rate.

In the first phase of litigation, the plaintiff appealed both the demotion and his pay cut to the civil service commission, which dismissed the claim for lack of jurisdiction. However, the court of appeals reversed “because Rule 1.4(2)(A) of the city's Personnel Policies and Procedures Manual required a written waiver of classified status, and because the City had not secured [the plaintiff’s prior] waiver in accordance with [that] rule.” Accordingly, “[t]he case was remanded for an administrative hearing so that the commission could determine whether [the plaintiff’s] demotion was contrary to his property right to maintain his pay during ‘good behavior and efficient service.’”

At the next civil service hearing in the second phase of the litigation, the plaintiff “testified that he was reduced in pay by $32,106.86, that he had served as Manager for over 15 months in good behavior, and that he had received the assurances of several city officials, including two city managers, that he would not be reduced in pay. His testimony was not refuted.” Nonetheless, the civil service commission again affirmed the plaintiff’s demotion and pay cut, but on different grounds. The Court then held that “c]lassified civil servants have tenure during ‘good behavior and efficient service,’ can be discharged or reduced only for cause as set forth in R.C. 124.34, and have displacement rights if their jobs are abolished. Because [the plaintiff] did not waive these rights, he carried them with him to his unclassified position.”

While the Court acknowledged that O.R.C. § 124 did not apply to make the unclassified position a permanent classified position or to give the plaintiff bumping rights, “[o]ne could only conclude from the evidence presented to the commission that [the plaintiff] was reduced in pay and that this reduction contravened his rights as an employee with classified status.” In addition, “the City is estopped from opposing an award of back pay because it created this anomaly by failing to secure [the plaintiff’s] written waiver of his classified status, as required by its own rule, and by promising that [the plaintiff] would not be reduced in pay. We will not penalize [the plaintiff] under these circumstances.”

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-3161.pdf

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.