Bradley v. Ohio State Dept. of Job & Family Servs.Bradley v. Ohio State Dept. of Job & Family Servs.
D E C I S I O N
Rendered on March 24, 2011
Buckley King LPA, and James E. Melle, for appellant.
Michael DeWine, Attorney General, Nicole S. Moss and Mahjabeen Qadir, for appellee.
APPEAL from the Franklin County Common Pleas Court.
BRYANT, P.J.
{¶1} Appellant-appellant, Shelba Bradley, appeals from a judgment of the Franklin County Court of Common Pleas affirming an order of the State Personnel Board of Review (“SPBR“) that dismissed as moot appellant‘s appeal of a temporary change in her duties as an employee of appellee-appellee, Ohio State Department of Job and Family Services (“ODJFS“). Because the common pleas court properly affirmed the SPBR‘s order finding the matter moot, we affirm.
{¶2} Appellant began her employment with the state in 1985 and transferred to ODJFS in 1998. In the 12 months prior to February 2009, appellant worked as an EEO Regional Administrator at ODJFS where she was primarily responsible for investigating claims of discrimination filed by ODJFS employees or customers of the federal entitlement programs ODJFS administered. Prior to February 4, 2009, appellant sent an email to another ODJFS employee, the contents of which caused appellant‘s supervisor, EEO Manager Shanna Bagner, to question the neutrality with which appellant was performing her duties.
{¶3} To address the concerns, appellant‘s supervisor and the labor relations chief on February 5, 2009 ordered appellant to cease working on discrimination investigations until ODJFS completed its own investigation of “her ‘advising activities.’ ” (Bagner Aff. ¶8.) As a result of its investigation, ODJFS ultimately removed appellant for cause from her position as EEO Regional Administrator on April 21, 2009. Appellant appealed her removal to the SPBR, a matter addressed in a separate action.
{¶4} From February 5, 2009 to April 21, 2009, during the two and a half months of the ODJFS investigation, appellant performed the work of a receptionist or clerk but continued to be classified as an EEO Regional Administrator and to be paid at her regular pay rate. On February 19, 2009, appellant appealed the change in her job duties to the SPBR. As part of her appeal, appellant filed a Motion to Disaffirm, pointing out that ODJFS, in violation of
{¶5} ODJFS responded, citing Ohio Department of Administrative Services Directive No. 08-08, issued March 2008. ODJFS asserted the temporary change in appellant‘s duties during the investigation was not a disciplinary reduction, but a permissible temporary modification of duties pending the investigation of appellant‘s job performance. ODJFS further asserted appellant‘s appeal was moot because ODJFS no longer employed appellant.
{¶6} Following appellant‘s response, the Administrative Law Judge (“ALJ“) filed a Report and Recommendation with the SPBR on July 30, 2009. The ALJ stated ODJFS acted appropriately under Directive 08-08 because ODJFS reduced only appellant‘s duties during the ongoing investigation, so appellant suffered no monetary loss. The ALJ also concluded that, even had appellant demonstrated ODJFS acted contrary to law, appellant‘s only remedy would be an order restoring her to her duties as EEO Regional Administrator. Because, subsequent to the temporary reassignment, ODJFS removed appellant for cause from that position, the ALJ concluded she could not be returned to it, leaving SPBR no remedy it could offer appellant. Finally, the ALJ noted appellant separately appealed the removal order and, if appellant were successful in that appeal, she would be restored to her former position as EEO Regional Administrator, rendering the appeal at issue before the SPBR without effect. With those premises, the ALJ recommended the SPBR overrule appellant‘s motion to disaffirm or dismiss the appeal as moot. (R&R, 6.) The SPBR adopted the ALJ‘s recommendation and ordered the appeal dismissed as moot.
II. Assignments of Error
{¶8} Appellant assigns the following errors:
- The Common Pleas Court erred in its interpretation of
R.C. 124.34(B) by (i) making a distinction between reductions in position for disciplinary and non-disciplinary reasons and (ii) finding thatR.C. 124.34(B) does not require service of a §124.34 order when the employee is reduced in position for non-disciplinary reasons. - The Common Pleas Court erred in failing to reverse the SPBR‘s Order because
R.C. 124.03(A)(1) requires that the SPBR must disaffirm a reduction in position where an employer fails to comply with its obligations inR.C. 124.34(B) . - The Common Pleas Court erred in ruling that the appeal was moot.
The Common Pleas Court erred in ruling that DAS Directive 08-08 was not void.
{¶9} Appellant‘s third assignment of error challenges the common pleas court‘s conclusion that appellant‘s appeal is moot. Because resolution of the issue disposes of appellant‘s appeal, we first address it.
III. Mootness
{¶10} Under
{¶11} “The doctrine of mootness is rooted in the ‘case’ or ‘controversy’ language of Section 2, Article III of the United States Constitution and in the general notion of judicial restraint.” James A. Keller, Inc. v. Flaherty (1991), 74 Ohio App.3d 788, 791. “While Ohio has no constitutional counterpart to Section 2, Article III, the courts of Ohio have long recognized that a court cannot entertain jurisdiction over a moot question.” Id.
{¶12} The mootness doctrine has limited exceptions. One exception concerns “cases which present a debatable constitutional question or a matter of great public or general interest.” Tschantz, 57 Ohio St.3d at 133, citing Franchise Developers, Inc. v. Cincinnati (1987), 30 Ohio St.3d 28, 31. Another exception allows for judicial review of moot questions when the issue is ” ‘capable of repetition, yet evading review.’ ” Nextel West Corp. v. Franklin Cty. Bd. of Zoning Appeals, 10th Dist. No. 03AP-625, 2004-Ohio-2943, ¶14, citing State ex rel. Plain Dealer Pub. Co. v. Barnes (1988), 38 Ohio St.3d 165, paragraph one of the syllabus. Appellant has not alleged either exception applies to her.
{¶13} Rather, appellant claims
{¶14} Because ODJFS no longer employs appellant, appellant‘s argument fails to advance the ultimate result she seeks. Regardless of the results of an audit, or even a conclusion that appellant was wrongly reassigned job duties during the investigation, the remedy appellant seeks is an order disaffirming her change in duties and restoring her to her former position. As a result of subsequent ODJFS action, disaffirming the change in her responsibilities does not aid appellant, as she has no position to which she may return. No meaningful relief can be afforded appellant through her appeal of SPBR‘s order. Instead, her remedy lies in a successful appeal of ODJFS’ decision to terminate her employment.
{¶15} Appellant nonetheless claims that because ODJFS was at fault when it failed to serve appellant with a
{¶17} Appellant next argues application of the “merger and bar rule” prevents her appeal from being moot. Although appellant‘s “merger and bar” argument acknowledges relief is not possible in this appeal, she nonetheless asserts a decision here would be useful in her separate appeal of her termination from ODJFS. Appellant‘s argument is not persuasive.
{¶18} The merger and bar defense provides that “[a]ll incidents which occurred prior to the incident for which a non-oral disciplinary action is being imposed, of which an appointing authority has knowledge and for which an employee could be disciplined, are merged into the non-oral discipline imposed by the appointing authority.”
{¶20} In a last effort to avoid mootness, appellant analogizes her situation to Joys v. Univ. of Toledo (Apr. 29, 1997), 10th Dist. No. 96APE08-1040. In Joys, an employer abolished an employee‘s position, the employee retired, and we agreed with the trial court the case was not moot. We concluded effective relief was possible, because the SPBR could order the employee reinstated despite her retirement. Id. Joys is distinguishable because, under the Public Employees Retirement System statutes and
{¶22} Based on the foregoing, we overrule appellant‘s third assignment of error, rendering moot her first, second, and fourth assignments of error. We thus affirm the judgment of the common pleas court affirming SPBR‘s order that dismissed appellant‘s appeal as moot.
Judgment affirmed.
KLATT and FRENCH, JJ., concur.
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