State ex rel. Butterbaugh v. Ross Cty. Bd. of Commrs.

• Decision Date: 05 May 1992
• Docket Number: No. 1782,1782
• Citation: 608 N.E.2d 778,79 Ohio App.3d 826
• Parties: The STATE ex rel. BUTTERBAUGH v. ROSS COUNTY BOARD OF COMMISSIONERS et al.
• Court: Ohio Court of Appeals

Page 826

79 Ohio App.3d 826

608 N.E.2d 778

The STATE ex rel. BUTTERBAUGH v. ROSS COUNTY BOARD OF COMMISSIONERS et al.

No. 1782.

Court of Appeals of Ohio, Fourth District, Ross County.

Decided May 5, 1992.

Thomas M. Spetnagel, Chillicothe, for relator.

Richard G. Ward, Ross County Pros. Atty., Chillicothe, for respondents.

PER CURIAM.

This is an original action in mandamus which is before this court upon the motion for partial summary judgment of Ernest W. Butterbaugh, relator, and the memorandum opposing the motion for partial summary judgment filed by the Ross County Board of Commissioners and Thomas Hamman, Ross County Sheriff, respondents.

On May 22, 1991, relator filed a complaint seeking a writ of mandamus compelling respondents to reinstate him to his previous position of "Staff Lieutenant--Head of Civil Division" and to provide him with full back pay and related benefits "due him." On June 14, 1991, respondents filed an answer admitting that there was a dispute between the parties as to the amount of back pay and related benefits, if any, to which relator was entitled, and further admitting that relator had not been reinstated to a position designated as "Staff Lieutenant--Head of Civil Division." Two of the affirmative defenses noted in respondents' answer were that relator failed to use ordinary diligence in order to mitigate his damages and that relator had failed to exhaust his legal remedies where an adequate remedy at law existed.

A subsequent pretrial order of this court instructed the parties to file evidence, motions, and briefs by a specified date. Depositions of relator and respondent Ross County Sheriff Thomas Hamman were filed. The foregoing summary judgment evidence provided, in pertinent part, as follows. Relator graduated from Southeastern High School in 1969. Prior to and during high school, relator held jobs as a stable boy and horse groom. Following high school, relator worked for four different employers as a general laborer. In January 1974, relator began working for the Ross County Sheriff's Department as a deputy sheriff. In 1985, Sheriff Hamman formulated a job description for the position of "Lieutenant--Civil Division" within his office. The position included, inter alia, the following duties and responsibilities: (1) supervisory duties including setting up training programs for Civil Division personnel; (2) serving orders of the civil court; (3) administrative duties such as preparing reports on division activities; (4) routine police duties; and (5) reporting directly to the sheriff. Relator became employed in the foregoing "Lieutenant--Civil Division" position with the sheriff's department. This job description was still in effect on the date of relator's termination.

By memorandum dated November 7, 1989, Sheriff Hamman attempted to reassign relator to the position of "Communications Supervisor and Training Officer." However, although the sheriff intended that this reassignment take effect immediately, he postponed the effective date of the reassignment to January 1, 1990 in order that relator could finish some of his remaining civil assignments. Ultimately, since relator did not work following January 1, 1990, this purported new position was, in the sheriff's own words, "never actuated." The November 7, 1989 reassignment memorandum directed to relator was the only document reflecting the purported job change, and the memorandum was never filed with any agency outside the sheriff's department. More specifically, the new position description was never filed with the Department of Administrative Services.

On January 30, 1990, relator was terminated from his employment with the sheriff's department. The stated reason for his termination was insubordination due to his taking an overdose of prescribed medication and failing to report it. During relator's period of employment with the sheriff's department from January 1974 through January 30, 1990, he obtained off-duty officer jobs at various places and for various functions through the sheriff's department. Following his termination, relator worked for Alexander's Body Shop, where he earned $1,000 prior to being laid off.

During the period of his unemployment, relator made the following efforts to locate employment: (1) he talked to Glenn Price, who was involved in real estate, insurance, and bail bonds, in February 1990, and was advised there was no job and that Price "didn't want to get involved in anything"; (2) he talked to Charles Kneisley of Top Quality Auto Parts; (3) he called sheriff's departments of several surrounding counties and they said there were no openings and that he would have to relocate in those counties to be employed by those departments; (4) he and his sister in Columbus checked the want ads and classified section of the newspaper; (5) he contacted Bryan Theobald of Mead, who told him that there was no need to formally apply for employment with their police/security force, since it was not hiring; (6) he contacted the Ohio Department of Liquor Control and determined that it was not hiring; (7) he stopped by the Ohio Bureau of Employment Services several times to check for posted jobs; (8) he was advised by Keith Ault that one of the two local correctional facilities had an investigator's position that it might be trying to fill, but after relator told Ault that he was interested in the position, he never heard anything else about it; (9) he was told by Don Detillion of Martin Marietta that it was not accepting job applications and was not hiring; and (10) he never applied for a position with the Chillicothe Police Department because his age exceeded its restriction. Relator did not personally contact the two local correctional facilities and did not sign up for any of the job-locating services provided by the Ohio Bureau of Employment Services or other agencies. Additionally, relator could not remember ever filing any formal job applications because usually he was advised that prospective employers were not accepting applications. Sheriff Hamman noted that he conducts a background check on applicants who apply for any entry level position with his department and that he would not be inclined to hire someone who had been discharged from another law enforcement agency for a violation of that agency's drug abuse policy.

In March 1990, relator sold a residence which he had previously purchased for $63,000 to $65,000 and sold it for $89,000. Most of the money relator received from the sale went towards the purchase of new property in April or May 1990. After the purchase, relator helped to build a new house on his property.

On or about December 14, 1990, the State Personnel Board of Review ordered in case No. 90-REM-02-0660 that relator's removal order be disaffirmed, that he be reinstated to his previous position, and that in lieu of removal, relator be suspended for ten days without pay. On December 17, 1990, relator was reinstated on respondents' payroll, although he did not return to actual employment with the sheriff's department until sometime in February 1991. The position which Sheriff Hamman attempted to assign to relator upon his return to duty was outlined in a February 8, 1991 memoranda to relator. This "ASSIGNMENT OF DUTIES" noted that relator was assigned to "Communications Duty," that he reported directly to Lt. David Large, that he did not have any supervisory or investigative duties, and that he could not carry any firearms. This new position description was never filed with the Department of Administrative Services or any other agency.

Sheriff Hamman admitted in his deposition that by this new assignment, he had not reinstated relator to his previous position, regarding duties and responsibilities, as ordered by the State Personnel Board of Review. Sheriff Hamman noted that the new assignment differed from both relator's previous position as "Lieutenant--Civil Division" and the attempted November 7, 1989 reassignment position of "Communications Supervisor and Training Officer." Of the six lieutenants currently employed by the sheriff's department, relator is the only lieutenant assigned to the communications department and the only lieutenant without supervisory powers.

From the date of his termination from the sheriff's department, January 30, 1990, until the date of his reinstatement with the sheriff's department, December 17, 1990, relator would have earned a base pay of $14.32 per hour based upon a forty hour work week had he not been unlawfully removed from his employment. Sheriff Hamman testified that although all of the lieutenants worked overtime during that period, it was his opinion that relator would not have worked any overtime had he continued his employment through the period because, in the past, relator had worked very few overtime hours. Shortly following his termination, relator received $3,021.81 as payment for his accumulated vacation hours earned prior to his termination. Sheriff Hamman testified that he was unsure what respondents' PERS contribution to relator's pension would have been during the relevant period. Relator's motion for partial summary judgment asserts that he is, as a matter of law, entitled to recover $22,212.43 in back pay, prejudgment interest on the back pay, attorney fees incurred in this mandamus action, as well as reinstatement to his previous position, including duties and responsibilities of "Lieutenant--Civil Division" in the Ross County Sheriff's Department. Summary judgment is appropriate when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence construed most strongly in his favor. Bostic v. Connor (198...