Marshall v. City of Columbus, 79-1120
| Decision Date | 26 March 1980 |
| Docket Number | No. 79-1120,79-1120 |
| Parties | , 15 O.O.3d 436 MARSHALL, Appellee, v. CITY OF COLUMBUS et al., Appellants. |
| Court | Ohio Supreme Court |
On November 14, 1975, appellee, Daniel T. Marshall, received an appointment to the position of firefighter in the Division of Fire, Department of Public Safety of the city of Columbus a competitive classified civil service position. Immediately following his graduation from the Columbus Fire Training Academy, Marshall was dismissed from his position on December 29, 1975.
Marshall appealed his dismissal to the municipal civil service commission, alleging that his employment had been unlawfully terminated. The commission rejected the appeal and the Court of Common Pleas affirmed. On February 21, 1978, the Court of Appeals reversed and ordered that he be reinstated. He was reinstated effective April 6, 1978.
In February 1976, appellee sought firefighter positions with the Westerville and Upper Arlington Fire Departments. In Westerville, he placed third out of approximately 100 who took the written test for the positions. He was not offered a position. In Upper Arlington he was told that the department had no immediate hiring plans. In mid 1976, Marshall was employed for about six weeks as an iron worker by All Piping, Inc. He left that position because of an industrial injury. At the 1976 and 1977 Ohio State Fairs he was also self-employed as a concessionaire. In September 1976, Marshall enrolled as a full-time law student in the Ohio State University College of Law.
From January 1976, to April 6, 1978, three other Columbus area fire departments conducted civil service examinations and hired firefighters. In April 1976, 150 people took the city of Whitehall's examination. During the period in question six or seven of these were hired. Washington-Perry Township administered tests in April and September, 1977. Seventy-six people took the September test, but it is not known how many took the April one. Thirteen of these were ultimately hired. The city of Grandview Heights administered a test in the summer of 1976. Approximately 150 people took the test, and three were ultimately hired. These fire departments hire on a competitive basis, including written tests, background investigations, oral interviews, physical examinations, and physical agility tests. Marshall did not compete for these positions.
After being reinstated in the Columbus Division of Fire, Marshall filed this action in mandamus in the Court of Appeals for Franklin County seeking a writ ordering the city of Columbus to compensate him for back wages from December 29, 1975, to April 6, 1978, in the amount of $23,421.70 plus interest, vacation credits, sick leave credits, and pay scale adjustments. The city denied having a clear legal duty to perform these acts, alleging the affirmative defense of mitigation of damages. The Court of Appeals issued the writ on June 21, 1979, ordering the city to grant Marshall his requested relief less actual earnings during the period.
The cause is now before this court upon an appeal as of right only on the issue of back pay liability between December 29, 1975, and April 5, 1978.
Robert P. DiRosario, Columbus, for appellee.
Gregory S. Lashutka, City Atty., Patrick M. McGrath, and Donald R. Keller, Columbus, for appellants.
In State ex rel. Martin v. Columbus (1979), 58 Ohio St.2d 261, 389 N.E.2d 1123, paragraph two of the syllabus, this court held that a civil service employee who is unlawfully discharged is entitled to...
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