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.