State ex rel. Parsons v. Fleming, 93-550

• Decision Date: 23 March 1994
• Docket Number: No. 93-550,93-550
• Citation: 628 N.E.2d 1377,68 Ohio St.3d 509
• Parties: , 147 L.R.R.M. (BNA) 2699 The STATE ex rel. PARSONS, Appellant, v. FLEMING, Director, et al., Appellees.
• Court: Ohio Supreme Court

Page 509

68 Ohio St.3d 509

628 N.E.2d 1377, 147 L.R.R.M. (BNA) 2699

The STATE ex rel. PARSONS, Appellant, v. FLEMING, Director, et al., Appellees.

No. 93-550.

Supreme Court of Ohio.

Submitted Jan. 11, 1994.

Decided March 23, 1994.

Maxine Parsons, relator-appellant, sought a writ of mandamus from the Franklin County Court of Appeals compelling Luceille Fleming, Director of the Department of Alcohol and Drug Addiction Services ("DADAS"), and Stephen A. Perry, Director of the Department of Administrative Services ("DAS"), as well as DADAS and DAS, respondents-appellees, to: (1) reclassify her retroactively to July 14, 1991 as an EEO Regional Program Administrator or act upon her job audit request, and retroactively and correctly classify her based upon her specified duties and responsibilities; (2) prohibit respondents from interfering with DAS in correctly and retroactively classifying relator's position, and order them to promptly process all paperwork; and (3) award her back pay or a temporary working level adjustment or temporary promotion with back pay from July 14, 1991.

On July 14, 1991, appellant was hired by DADAS for the newly created position of EEO Officer. After performing the job for approximately eight months, appellant became convinced that her position had been misclassified from the date it was created. Appellant believed that her job duties were consistent with that of an EEO Regional Program Administrator and requested that Fleming and DADAS upgrade her position. When they refused to comply, she requested a job audit from Perry and DAS pursuant to R.C. 124.14(D), and they also refused.

It is conceded appellant, a classified civil service employee, was a member of the bargaining unit for which the Ohio Civil Service Employees Association, Local 11, AFSCME, AFL-CIO had been certified as the exclusive representative. The union had entered into a collective bargaining agreement with the state of Ohio which was effective during all pertinent times herein. Article 19 of the agreement, entitled "WORKING OUT OF CLASS," provides a three-step grievance procedure, culminating in arbitration, "[i]f an employee or the Union believes that he/she has been assigned duties not within his/her current classification." Section 19.02. Appellant did not file a grievance pursuant to Article 19.

Appellees filed a motion to dismiss or for summary judgment which was converted by the court of appeals to solely a motion for summary judgment. Appellant filed her own motion for summary judgment. Appellant also filed an affidavit verifying the allegations of her complaint and the accuracy of numerous exhibits. Appellees subsequently filed an affidavit of Stephen J. Toth, Human Resources Administrator for DADAS, in which he stated that: (1) he participated in appellant's hiring at DADAS, (2) she was not hired from a civil service eligibility list, (3) no eligibility list for the position of EEO Officer existed at the time appellant was hired, (4) she was not hired as an original appointment, and (5) she had actually been promoted from her previous position as an EEO Officer for DAS and transferred between agencies.

The court of appeals overruled appellant's motion for summary judgment, granted appellees' motion for summary judgment, and denied the writ.

The cause is before this court upon an appeal as of right.

Lucas, Prendergast, Albright, Gibson & Newman and James E. Melle, Columbus, for appellant.

Lee I. Fisher, Atty. Gen., Jack W. Decker and Darlene E. Chavers, Asst. Attys. Gen., for appellees.

Linda K. Fiely, Columbus, urging affirmance for amicus curiae, Ohio Civil Service Employees Ass'n, AFSCME, Local 11, AFL-CIO.

PER CURIAM.

Appellant contends that the court of appeals erred in granting appellees' motion for summary judgment and denying her requested mandamus relief. Appellant additionally contends that the court of appeals erred in overruling her summary judgment motion.

Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. Because summary judgment is a procedural device to terminate litigation, it must be awarded with caution and doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138, 140. If a contract is clear and unambiguous, then its interpretation is a matter of law and there is no issue of fact to be determined. Davis v. Loopco Industries, Inc. (1993), 66 Ohio St.3d 64, 66, 609 N.E.2d 144, 145.

R.C. 124.14(D) provides that "[u]pon the request of any classified employee who is not serving in a probationary period, the director shall perform a job audit to review the classification of the employee's position to determine whether the position is properly classified." As mentioned above, Article 19 of the collective bargaining agreement between the state and the union provides a grievance procedure, including arbitration, "[i]f an employee or the Union believes that he/she has been assigned duties not within his/her current classification." Section 19.02. The collective bargaining agreement provides that "[i]f the Director or designee determines that the employee is performing duties not contained within the employee's classification," the employee is entitled to the remedies of: (1) immediate discontinuance of duties not associated with the employee's current classification, as well as (2) a limited monetary award for the duties already performed if the duties are associated with a higher paying classification. Id.

The court of appeals denied appellant's request for mandamus relief on summary judgment, stating:

"Section 19.02 addresses situations where an employee whose position is within a proper classification is assigned duties outside of that classification. Section 19.02 of the collective bargaining agreement does not provide a remedy to someone who is newly hired for a position which is incorrectly classified. In that case, an employee would be performing duties regularly assigned for the position, but the classification into which the position had been placed does not include the regular duties of the position. Section 19.02 of the collective bargaining agreement does not address, nor provide, a remedy for an employee who believes his position has been misclassified. Rather, the collective bargaining agreement provides an avenue of relief only when an employee claims the job duties assigned are outside of the regular duties of the position and classification.

" * * * In the situation where an employee is hired, not transferred, for a newly created position which has an incorrect classification attached to the correct job duties, the employee would have a right to a job audit since the collective bargaining agreement does not provide a remedy for such a misclassification. However, that is not the situation in this case."

The court of appeals agreed with appellant's assertion that the collective bargaining agreement does not supersede the employee's right to an R.C. 124.14(D) job audit where the employee is newly hired and is misclassified. However, the court held that appellees were entitled to summary judgment because: (1) appellant was hired to perform the job duties of an EEO Officer and therefore her position was not misclassified; and, alternatively, (2) if her present position was misclassified, any correction could not be for her benefit because she was promoted and then transferred between agencies (Ohio Adm.Code 123:1-25-01 prevents any transfer to a higher position).

All parties take exception to the court of appeals' rationale, although appellees contend that the court reached the correct result.

Appellant contends that she was originally appointed to her misclassified position and, consequently, the collective bargaining agreement could not prevail over her statutory right to a job audit. R.C. 4117.08 provides:

"(A) All matters pertaining to wages, hours, or terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective...