State ex rel. Martin v. City of Columbus, Dept. of Health

• Decision Date: 06 June 1979
• Docket Number: No. 78-860,78-860
• Citation: 58 Ohio St.2d 261,12 O.O.3d 268,389 N.E.2d 1123
• Parties: , 12 O.O.3d 268 The STATE ex rel. MARTIN, Appellant, v. CITY OF COLUMBUS, DEPARTMENT OF HEALTH, et al., Appellees.
• Court: Ohio Supreme Court

Page 261

58 Ohio St.2d 261

389 N.E.2d 1123, 12 O.O.3d 268

The STATE ex rel. MARTIN, Appellant, v. CITY OF COLUMBUS, DEPARTMENT OF HEALTH, et al., Appellees.

No. 78-860.

Supreme Court of Ohio.

June 6, 1979.

Syllabus by the Court

1. An action in mandamus is maintainable by a reinstated public employee to recover compensation due him for the period of time during which he was wrongfully excluded from his employment, provided the amount recoverable is established with certainty. (Monaghan v. Richley, 32 Ohio St.2d 190, 291 N.E.2d 462, approved and followed.)

2. A public employee, even though he holds his position under civil service, who is wrongfully excluded from his position and sues to recover compensation for the period of exclusion, is subject to have his claim reduced by the amount he earned or, in the exercise of due diligence, could have earned in appropriate employment during the period of exclusion. (State ex rel. Wilcox v. Woldman, 157 Ohio St. 264, 105 N.E.2d 44, approved and followed.)

3. The principle of mitigation of damages, applicable in a suit to recover compensation for a period of wrongful exclusion from employment is an affirmative defense and the burden of proof on that issue resides upon the employer responsible for the wrongful discharge.

Mary M. Martin, appellant herein, was employed in the classified civil service beginning on May 26, 1966, as a Health Aide by the Columbus Department of Health. As part of her ongoing duties she would visit the homes of various individuals, waiting on the sick, giving them baths, changing their beds, and cooking, if necessary.

On July 22, 1974, appellant was injured in an automobile accident in the performance of her employment duties. As a result of this accident, she was granted and paid injury leave by the department of health from July 23, 1974, through and including January 17, 1975.

On December 30, 1974, she reported for work with a note from her treating physician, and asked to return to her previous job. Her employer refused to allow her to return to her former position or any other position for the reason that it wished to conduct its own physical examination prior to restoring appellant to employment.

A physical examination took place on February 5, 1975, and appellant was subsequently discharged from the department of health for physical disabilities on February 21, 1975. Moreover, during the time period from the end of appellant's injury leave on January 17, 1975, until March 8, 1975, she continued to receive full pay by virtue of accumulated sick leave and vacation time.

Appellant's discharge was upheld by the Municipal Civil Service Commission of Columbus, and affirmed on appeal to the Court of Common Pleas of Franklin County on December 19, 1975. On June 15, 1976, the Court of Appeals reversed, ordered the appellant reinstated to her position, and remanded the cause to the trial court for execution of judgment.

Appellant subsequently filed a motion in the trial court to order the civil service commission to pay her back pay and other incidental benefits associated with her former position as a Health Aide. On December 7, 1976, the court overruled the motion, holding that a demand for back wages did not appear in appellant's original complaint.

On November 14, 1977, appellant filed a complaint in mandamus in the Court of Appeals for Franklin County seeking to direct the department of health, city auditor and city treasurer to compensate her for back pay and other incidental benefits covering the period from January 1, 1975, through June 23, 1976, the date she returned to work.

In a split decision, the Court of Appeals denied the writ of mandamus, concluding that appellant had failed to exercise due diligence in obtaining similar employment during the period in question and, therefore, the amount recoverable could not be established with the requisite degree of certainty.

The cause is now before this court pursuant to an appeal as of right.

Barkan, Barkan & Neff, Frank J. Neff and Paul R. Mancuso, Columbus, for appellant.

Gregory S. Lashutka, City Atty., Patrick M. McGrath and Earl J. Silberman, Columbus, for appellees.

CELEBREZZE, Chief Justice.

The issues raised in this appeal can be phrased as follows: (1) Does the record reflect a lack of "due diligence" on the part of appellant in attempting to secure similar employment during the period in which she was entitled to back wages? (2) Assuming the facts do reflect the requisite degree of diligence, can the amount to which appellant would be entitled be calculated with a sufficient degree of certainty?

At the outset, it is evident that this particular appellant has a right to pursue her remedy in the courts by means of an original action in mandamus. Since her initial discharge by the city of Columbus has previously been held to be wrongful by the Court of Appeals for Franklin County, the syllabus in Monaghan v. Richley (1972), 32 Ohio St.2d 190, 291 N.E.2d 462, becomes appropriate herein:

"An action in mandamus is maintainable by a reinstated public employee to recover compensation due him for the period of time during which he was wrongfully excluded from his employment, provided the amount recoverable is established with certainty."

However, a party seeking to recover such compensation is also required to mitigate any damages to which she is entitled as a result of that wrongful discharge. The first paragraph of the syllabus in State ex rel. Wilcox v. Woldman (1952), 157 Ohio St. 264, 105 N.E.2d 44, mandates the following:

"A public employee, even though he holds his position under civil service, who is wrongfully excluded from his position and sues to recover compensation for the period of exclusion, is subject to have his claim reduced by the amount he earned or in the exercise of due diligence could have earned in appropriate employment during the period of exclusion."

In addition, a wrongfully discharged employee need only accept "similar" employment in mitigation. In James v. Allen County (1886), 44 Ohio St. 226, at pages 233-234, 6 N.E. 246 at page 250, the court described that requirement in the following language:

"Being subject to the universal rule that a person injured by the act of another is bound to use...