Binder v. Cuyahoga Cnty.

• Decision Date: 04 April 2019
• Docket Number: Nos. 106665,106666,s. 106665
• Parties: Richard BINDER, et al., Gerald Butterfield, et al., Plaintiffs-Appellees/Cross Appellants, v. CUYAHOGA COUNTY, Defendant-Appellant/Cross/Appellee.
• Court: Ohio Court of Appeals

134 N.E.3d 807

2019 Ohio 1236

Richard BINDER, et al., Gerald Butterfield, et al., Plaintiffs-Appellees/Cross Appellants,

v.CUYAHOGA COUNTY, Defendant-Appellant/Cross/Appellee.

Nos. 106665

106666

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

Dated: April 4, 2019

Atty. Kevin T. Roberts, 7622 Columbia Road, Olmsted Falls, Ohio 44138, Atty. Joshua R. Cohen, Atty. Ellen M. Kramer, 1 Clinton Place, Cleveland, Ohio 44113 for Plaintiffs-Appellees/Cross Appellants and

Atty. Michael C. O'Malley, Prosecuting Attorney of Cuyahoga County, Atty. Brian R. Gutkoski, Assistant Prosecuting Attorney, The Justice Center, Courts Tower, 8^th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, Atty. Robert J. Triozzi, Cuyahoga County Department of Law, Atty. Robin M. Wilson, Asst. Director of Law, County Administrative Headquarters, 2079 East 9^th Street, 7^th Floor, Cleveland, Ohio 44115, for Defendant-Appellant/Cross/Appellee.

BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges of the Seventh District Court of Appeals, Sitting by Assignment

OPINION AND JUDGMENT ENTRY

Robb, J.

{¶1} Defendant-Appellant/Cross-Appellee Cuyahoga County appeals the decision of the Cuyahoga County Common Pleas Court granting class certification to Plaintiffs-Appellees/Cross-Appellants Gerald Butterfield, et al. and Richard Binder, et al. Four assignments of error are raised in the appeal. The first two concern subject matter jurisdiction and standing. Appellant contends the trial court lacked subject matter jurisdiction to decide class certification and ultimately the case because Appellees failed to exhaust administrative remedies. Appellant also asserts because Appellees failed to exhaust administrative remedies they lacked standing and the case must be dismissed. In the third and fourth assignments of error Appellant argues the trial court abused its discretion in granting certification and finding the requirements for Civ.R. 23(a) and (b) were met.

{¶2} Appellees raised a cross assignment of error concerning the issue of whether the trial court certified a class with respect to both Civ.R. 23(b)(2) and (b)(3).

{¶3} For the reasons expressed below Appellant's arguments fail. The failure to exhaust administrative remedies is an affirmative defense; it does not affect subject matter jurisdiction or standing. As to class certification, the trial court did not abuse its discretion in granting certification. This determination renders Appellees cross assignment of error moot. Consequently, the trial court's decision is affirmed. However, in affirming the decision we clarify the class definition to include only full–time non-salaried employees.

Statement of the Case

{¶4} In November 2009, the citizens of Cuyahoga County approved a new county government - a charter government. This created an elected County Executive and County Council, while at the same time disposing of some previously elected county official positions such as the elected county auditor position and the elected county treasurer position. As part of the charter government, county employees had to be reclassified into new positions. This caused some employees to be classified to lower positions and their wages to be reduced. The charter government also required employees to work a 40-hour work week, defined as an 8-hour work day that included an hour paid lunch. Previous to the charter government it appears many of the county offices worked a 35-hour work week, which included 7 hours of work and an unpaid lunch break. The change to a paid lunch hour under the new county government did not raise the employees' compensation.

{¶5} As a result of reclassification, changes in salary, and the change to a paid lunch hour, multiple lawsuits were filed by or on behalf of employees.

{¶6} This case is a consolidation of four of those lawsuits - Dolezal, Binder, Corrigan, and Butterfield. The issue in this appeal concerns the class certification granted in Binder and Butterfield. That said, a recitation of the filings in all four cases is necessary to understand the background of this case and for an understanding of the arguments and counter arguments made in this appeal.

Dolezal

{¶7} The Dolezal plaintiffs filed a complaint against the County in 2013 - Dolezal, et al. v. Cuyahoga County , case number 13-801116. 2/8/13 Complaint; 7/26/13 Amended Complaint. The plaintiffs in this case indicated it was a class action and sought a declaration that the County failed to form the charter correctly, asserted R.C. 124.34 was violated when their compensation and benefits were reduced without cause, asserted age discrimination, and asserted a claim under the Ohio Minimum Fair Wage Standard Act.

{¶8} Appellant filed an answer to the amended complaint; one affirmative defense asserted in the answer was the failure to exhaust administrative remedies. 9/6/13 Answer. Appellant also moved for partial judgment on the pleadings for the first two counts of the complaint alleging failure to state a claim upon which relief could be granted. 10/17/13 Motion. The Dolezal plaintiffs opposed the motion. 11/1/13 Motion. The trial court denied the motion for partial judgment on the pleadings. 4/24/14 J.E.

{¶9} The Dolezal plaintiffs then moved for partial summary judgment on count one and count two of the complaint and additionally moved for class certification. 12/19/14 Plaintiff Motion for Partial Summary Judgment; 12/22/14 Plaintiff Motion for Class Certification. The class certification request sought to certify as a class, "All classified employees or former employees of Cuyahoga county who since Jan. 1, 2011 suffered without cause the loss of pay, compensation, wages, salary, or benefits, including benefits linked to compensation, retirement, benefits, pension benefits, overtime benefits, exchange time, accumulated sick pay, and/or vacation time."

{¶10} Thereafter, the County filed its own motion for summary judgment on counts one and two of the complaint, filed a motion in opposition to Plaintiff's motion for summary judgment, and a motion opposing class certification. 3/9/15 County's Motion for Summary Judgment; 4/8/15 Motion in Opposition to Plaintiff's Motion for summary judgment; 6/5/15 Defendant's Opposition to Class Certification.

{¶11} Following further briefing on each of the issues, the trial court denied each party's motion for partial summary judgment and also denied the Dolezal plaintiff's request for class certification. 8/3/15 J.E. In denying the request for class certification, the court explained:

This Court finds that it would be exceedingly difficult to join all of the alleged Plaintiffs into one unified class. Based upon the highly varying circumstances between each County employee who was incorporated into the job classification scheme, it is probable that the Court would have to address each situation on a case-by-case basis. The Plaintiffs are painting with a broad brush in their quest to join together all current and former employees who saw their compensation and benefits change since the date that the Charter took effect at the beginning of 2011. According to the County's position, this broad characterization would include County employees with vastly differing backgrounds than those already included in this action. It is not feasible to join all of the County employees who were allegedly harmed by reclassification into one cohesive group. It is unclear at this point whether Plaintiffs would benefit from consolidating into several smaller groups so that the Court could more efficiently address this action.

According to Plaintiffs, this action allegedly adversely impacted individuals who had their salaries cut, others who had their jobs eliminated, those who sought administrative remedies through an appeals process, as well as individuals who exhausted the appeals process and sought further remedy in the Court of Common Pleas. Together, all of these circumstances are too widely disparate to be adjudicated in a single action.

8/3/15 J.E.

{¶12} This denial of class certification was not appealed.

{¶13} In March 2016, the parties stipulated to a dismissal with prejudice of counts three and four of the amended complaint; therefore the only counts remaining were the declaratory judgment claim and the claim that R.C. 124.34 was violated. 3/21/16 Stipulation of Dismissal. The County and the Dolezal plaintiffs then filed competing motions for summary judgment. 4/1/14 County Motion for Summary Judgment; 4/25/16 Plaintiff Dolezal's Motion in opposition to County's Motion for Summary Judgment and renewed motion for summary judgment. One of the issues raised in the County's motion was the failure of the Dolezal plaintiffs to exhaust administrative remedies.

{¶14} The trial court granted the motions in part and denied the motions in part. 6/7/16 J.E. It granted summary judgment to the County on count one; it found the enactment of the new charter for the new form of County Council government was done properly. The trial court granted summary judgment to the Dolezal plaintiffs on the second count finding a violation of R.C. 124.34 :

Among the many reasons the voters choose to change the form of government were allegations of individuals being hired on with little or no experience, in jobs with little or no real work, at salaries well above the average salaries for similar positions. In response to that and to create transparency in its human resources functions, the County Council commissioned a study of all of its positions to make a determination of what job functions were needed, what adjustments should be made to certain positions, and that the salary ranges were appropriate for each position. The Archer Study did exactly that and provided recommendations for the County Council and many, if not all, of the recommendations were accepted and changes were made. The Plaintiffs here are alleging that those changes adversely affected them and were not done in accordance with the civil service laws and that the

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