The State Of Ohio Ex Rel. Crumbley v. City Of Cleveland, No. 90900.

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtPER CURIAM
Citation923 N.E.2d 200,185 Ohio App.3d 82,2009 Ohio 6100
PartiesThe STATE of Ohio ex rel. CRUMBLEY et al. v. CITY OF CLEVELAND.
Docket NumberNo. 90900.
Decision Date13 November 2009

923 N.E.2d 200
185 Ohio App.3d 82
2009 Ohio 6100

The STATE of Ohio ex rel. CRUMBLEY et al.
v.
CITY OF CLEVELAND.

No. 90900.

Court of Appeals of Ohio
Eighth District
Cuyahoga County.

Decided Nov. 13, 2009.


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Fred D. Middleton, for relators.

Robert J. Triozzi, Cleveland Law Director, L. Stewart Hastings, Chief Assistant Law Director, and William M. Menzalora, Assistant Law Director, for respondent.

PER CURIAM.

{¶ 1} On January 11, 2008, Jesse Crumbley filed a verified complaint for writ of mandamus against the city of Cleveland asking this court to order the city to pay Crumbley $107,519 in back pay with interest at a rate of ten percent per year, starting from the date of the award, plus attorney fees. On March 14, 2008, the city filed a motion to dismiss the complaint due to relator's failure to comply with R.C. 2731.04. On March 18, 2008, relator filed a motion to amend the verified complaint and on March 19, 2008, filed a motion in opposition to the motion to dismiss.

{¶ 2} On April 9, 2008, this court denied the motion to dismiss and allowed relator to amend his complaint. Relator subsequently filed a seconded amended complaint in which trustee Virgil E. Brown Jr. was added as a new party relator as a result of Crumbley's bankruptcy proceeding. Respondent filed its answer to the second amended complaint on July 14, 2008. Thereafter, on September 3, 2008, relators' counsel filed a notice of withdrawal.

{¶ 3} On December 1, 2008, this court ordered respondent to submit a dispositive motion and provided relators time to re spond to that filing. On December 12, 2008, in compliance with this court's order, the city submitted its motion for summary judgment. Thereafter, on December 23, 2008, attorney Fred Middleton entered his appearance on behalf of Crumbley and on January 9, 2009, also entered his appearance on behalf of Virgil E. Brown Jr. Thereafter, on February 25, 2009, counsel for relators requested additional time to conduct discovery and to oppose the city's motion for summary judgment. While the motion was opposed by the city, this court granted the motion on March 2, 2009, and gave relators until April 27, 2009, to conduct additional discovery and to oppose the motion for summary judgment.

{¶ 4} Thereafter, on May 5, 2009, this court ordered the parties to appear before the conference attorneys in an attempt to settle this matter. The settlement conference was held on June 18, 2009, but the parties were unable to settle. On June 20, 2009, relators filed a motion for summary judgment. Thereafter, on August 10, 2009, this court denied both relators' and respondent's motions for summary judgment. On August 27, 2009, and August 31, 2009, this court held a hearing on Crumbley's complaint. Based upon the testimony and documents submitted during that hearing, we grant, in part, Crumbley's complaint for a writ of mandamus.

{¶ 5} The facts before this court indicate that Crumbley worked as a corrections officer for the city of Cleveland until December 23, 1997, when his employment was terminated. Crumbley filed a grievance against the city, and the matter proceeded to arbitration before arbitrator Bernard Levine. Arbitrator Levine determined that Crumbley was unjustly terminated and ordered the city "to reinstate [Crumbley] to his former or substantially equivalent position without any loss of seniority. In addition, [Crumbley] is to be

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paid back pay from the time of his suspension to the time of an offer of reinstatement, less any interim earnings. If [Crumbley] incurred any expenses in obtaining and maintaining any interim employment which he would not have encountered in his primary employment with the City, those expenses shall be deducted from his interim earnings before the interim earnings are deducted from back pay."

{¶ 6} In order for this court to issue a writ of mandamus, Crumbley must establish that he has a clear legal right to the requested relief, that the respondent has a clear legal duty to perform the requested relief, and that there is no adequate remedy at law. State ex rel. Man-son v. Morris (1993), 66 Ohio St.3d 440, 613 N.E.2d 232, citing State ex rel Berger v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50, 451 N.E.2d 225. Moreover, mandamus is an extraordinary remedy which is to be exercised with caution and only when the right is clear. "The duty to be enforced by a writ of mandamus must be specific, definite, clear and unequivocal." State ex rel. Karmasu v. Tate (1992), 83 Ohio App.3d 199, 205, 614 N.E.2d 827. It should not be issued in doubtful cases. State ex rel Taylor v. Glasser (1977), 50 Ohio St.2d 165, 4 0.0.3d 367, 364 N.E.2d 1; State ex rel Shafer v. Ohio Turnpike Comm. (1953), 159 Ohio St. 581, 50 O.O. 465, 113 N.E.2d 14; State ex rel Connole v. Cleveland Bd. of Edn. (1993), 87 Ohio App.3d 43, 621 N.E.2d 850.

{¶ 7} Additionally, if a relator had an adequate remedy at law, regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v. McGrath (1997), 78 Ohio St.3d 45, 676 N.E.2d 108; State ex rel. Boardwalk Shopping Ctr., Inc. v. Court of Appeals for Cuyahoga Cty. (1990), 56 Ohio St.3d 33, 564 N.E.2d 86; State ex rel Provolone Pizza, L.L.C. v. Callahan, Cuyahoga App. No. 88626, 2006Ohio-6600, 2006 WL 3635355; State ex rel. Grahek v. McCafferty, Cuyahoga App. No. 88614, 2006-Ohio-4741, 2006 WL 2627461.

{¶ 8} Regarding writs filed in response to back-pay issues, the Supreme Court of Ohio has held that 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. Rich-ley (1972), 32 Ohio St.2d 190, 61 0.0.2d 425, 291 N.E.2d 462. The court also stated that the amount of compensation recoverable was that which the employee would have received had he not been wrongfully dismissed, reduced by the amount he earned during the discharge period. Id. at 196, 61 0.0.2d 425, 291 N.E.2d 462.

{¶ 9} In this matter, we find that Crumbley has established that he has a clear legal right to back pay and that the city has a clear legal duty to pay him his back pay for the time period he was terminated. We further find that Crumbley does not have an adequate remedy at law. Accordingly, the issue we must now determine is the amount of the back-pay award.

{¶ 10} The parties have stipulated that the total amount of compensation due Crumbley, less any deductions for interim earnings, is $125,132.96. According to the testimony of Ms. Hetrick, the payroll supervisor for the city of Cleveland, this figure represents the gross wages Crumbley would have earned during the period from December 23, 1997, through May 7, 2002.

{¶ 11} Crumbley also asserts that he is entitled to other compensation such as longevity pay, uniform-allowance pay, uniform-maintenance pay, holiday pay, sick time, and dormitory-unit-premium pay. The city argues that Crumbley is not enti-

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tled to any of these amounts because the arbitrator only ordered that Crumbley receive back pay rather than ordering a "make whole" award.

{¶ 12} We disagree with the city's position. The purpose of a back-pay award is to make the wrongfully terminated employee whole and to place the employee in the same position he would have been absent such termination. State ex rel Stacy v. Batavia Local School Dist Bd. of Edn., 105 Ohio St.3d 476, 2005-Ohio-2974, 829 N.E.2d 298. According to the Collective Bargaining Agreement ("CBA") between the city and the Ohio Patrolman Benefits Association to which Crumbley belongs, Crumbley was entitled to receive longevity pay, uniform-allowance pay, and uniform-maintenance pay. We further find that the amounts have been established with certainty based upon the parties' agreement: $1,625 for uniform-allowance pay, $875 for uniform-maintenance pay, and $1,650 for longevity pay.1 Accordingly we order that Crumbley receive these amounts.

{¶ 13} Crumbley also asserts that he is entitled to holiday pay, vacation pay, and sick time. Under the CBA, Crumbley was entitled to nine specific paid holidays, (1) New Year's Day, (2) Dr. Martin Luther King Jr. Day, (3) President's Day, (4) Good Friday, (5) Memorial Day, (6) Independence Day, (7) Labor Day, (8) Thanksgiving Day, and (9) Christmas Day, plus two floating holidays.

{¶ 14} According to the testimony of Hetrick, holiday pay and the two floating holidays were already included in the computation of Crumbley's basic pay. While there was testimony that an employee who worked on a holiday would be paid 12 hours, Crumbley did not establish with certainty that he would have worked any of the above holidays. Accordingly, if we were to grant Crumbley additional holiday pay, we would be providing Crumbley with a double payment, which would go beyond the obligation of making him whole. State ex rel Crockett v. Robinson (1981), 67 Ohio St.2d 363, 21 0.0.3d 228, 423 N.E.2d 1099.

{¶ 15} Crumbley also asks this court to award him sick time. According to the CBA, Crumbley is entitled to ten hours of sick leave for every month worked. However, in order for this court to pay Crumbley for his earned sick time, we would have to assume that Crumbley would never have taken a day of sick time for more than four years. The record does not support such an assumption. Accordingly, we find that the amount of sick time earned cannot be established with certainty. State ex rel Guerrero v. Ferguson (1981), 68 Ohio St.2d 6, 22 0.0.3d 98, 427 N.E.2d 515.

{¶ 16} Crumbley further requests that...

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