Calloway v. WasikCalloway v. Wasik
RELATOR
vs.
RESPONDENTS
JUDGMENT: WRIT GRANTED IN PART
WRIT OF MANDAMUS
RELEASE DATE: November 24, 2009
Kevin P. Prendergast
27999 Clemens Road
Suite One
Westlake, Ohio 44145
ATTORNEYS FOR RESPONDENTS
Robert J. Triozzi
Director of Law
Theodora M. Monegan
Chief Assistant Law Director
Steven Moody
Assistant Director of Law
City of Cleveland
601 Lakeside Ave., Room 106
Cleveland, Ohio 44114-1077
COLLEEN CONWAY COONEY, A.J.:
{¶ 1} This is an original action in mandamus whereby the relator, Charles E. Calloway, Sr., seeks to compel the respondents, city of Cleveland, Jomarie Wasik, Director of the Dept. of Public Service, and Robert Mavec, Acting Commissioner of the Division of Engineering and Public Service, to reinstate him to his former position as a city employee and to recover back-pay and benefits owed from the date of termination to the date of reinstatement, prejudgment interest, post-judgment interest, attorney fees, and costs. For the following reasons, we grant Calloway‘s request for a writ of mandamus in part.
{¶ 2} Calloway was employed by the city of Cleveland as a Deputy Project Director until his employment was terminated on October 12, 2007, for improperly using a city trailer to haul lumber in aid of a personal side business. Calloway, prior to his termination, was earning an hourly rate of $21.64 plus benefits in his capacity as a Deputy Project Director.1 Calloway appealed his termination to the Cleveland Civil Service Commission. On June 27, 2008, the Cleveland Civil Service Commission conducted a hearing and determined that Calloway should be reinstated to his position as Deputy Project Director.2 On July 11, 2008, the Cleveland Civil Service Commission approved the minutes of the hearing of June 27, 2008, and on July 14, 2008, forwarded a letter to Calloway that provided that the “Commission at its’ [sic] meeting on Friday, June, 27, 2008, approved your appeal of tеrmination from the classification of Project Director, Department of Public Service.”
{¶ 4} On December 1, 2008, the respondents filed a joint motion to dismiss. On February 24, 2009, we denied the motion to dismiss and also ordered that the parties “* * * provide this court with stipulations, and any other evidentiary material permissible under the Ohio Rules of Civil Procedure and the Ohio Rules of Evidence, whiсh establish the exact amount of back wages due the relator.” Calloway, on May 1, 2009, filed his initial merit brief with sworn affidavit and other exhibits. On May 4, 2009, the respondents filed their initial merit brief with exhibits. Calloway, on August 13, 2009, filed his supplemental merit brief with sworn affidavit and other exhibits. On August 13, 2009, the respondents also filed their supplemental merit brief with attached exhibits.
{¶ 5} In order for this court to issue a writ of mandamus, Calloway must establish a clear legal right to back-pay, a clear legal duty on the part of the respondents to remit back-pay and benefits, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Asti v. Ohio Dept. of Youth Servs., 107 Ohio St.3d 262, 2005-Ohio-6432, 838 N.E.2d 658; State ex rel. Nichols v. Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities (1995), 72 Ohio St.3d 205, 648 N.E.2d 823. Mandamus is an extraordinary remedy that is to be employed with caution and only when the right is clearly established and should not be issued in doubtful cases. State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d 165, 364 N.E.2d 1; State ex rel Connole v. Cleveland Bd. of Edn. (1993), 87 Ohio App.3d 43, 621 N.E.2d 850; State ex rel. Karmasu v. Tate (1992), 83 Ohio App.3d 199, 614 N.E.2d 827.
III. Back-Pay and Benefits
{¶ 6} A public employee who has been reinstated to his position of employment may maintain an action in mandamus to recover compensation and related benefits due for the period of wrongful exclusion from employment, provided the amount that is recoverable can be established with certainty. State ex rel. Martin v. Bexley City School Dist. Bd. of Edn. (1988), 39 Ohio St.3d 36, 528 N.E.2d 1250; Monaghan v. Richley (1972), 32 Ohio St.2d 190, 291 N.E.2d 462. “The term ‘with certainty’ generally refers to
{¶ 7} It must also be noted that the employee and the employer possess a different burden of proof with regard to the determination of the amount of back-pay. The employee bears the burden of establishing, with certainty, the total amount of wages and other benefits that would have been earned, had he or she not been improperly terminated. State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn., supra. The employer bears the burden of establishing, with certainty, the amount of interim wages that the employee
{¶ 8} “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.” State ex rel. Martin v. Columbus (1979), 58 Ohio St.2d 261, paragraph three of the syllabus, 389 N.E.2d 1123.
{¶ 9} Finally, interim wages do not include supplemental income that was ordinarily earned by the relator prior to or during the wrongful termination. See Cuyahoga Falls Edn. Assn. v. Cuyahoga Falls City School Dist. Bd. of Edn. (1996), 112 Ohio App.3d 366, 678 N.E. 976, wherein the court held:
{¶ 10} “When [relator] testified before the referee, he stated that he had worked many summers and evenings during his tenure as a full time teacher prior to the layoff. He also testified that other teachers did the same and respondent had no prohibition against outside work that did not conflict with teaching responsibilities. Respondent did not controvert this evidence. Because respondent permitted outside work, such work was not incompatible with [relator‘s] teaching duties. Thus any salary earned during the summers and evenings of the layoff could have been earned by [relator] while he was
employed in a full-time capacity by respondent. Consequently, this court will subtract from [relator‘s] contractual salary only that portion of his actual salary that he earned during the time he would have been employed by respondent. This court therefore holds that thе formula for calculating compensatory damages in this case is as follows: [Relator‘s] salary under the contract minus his actual salary during the layoff except wages earned during summer and evening hours.” (Emphasis added.) Id. at 374.
IV. Legal Analysis
{¶ 11} Having established the legal precedent that is applicable to the claim for a writ of mandamus, we must now answer the following questions in order to detеrmine the amount of back-pay due Calloway: (1) period of time of wrongful termination for which Calloway must be compensated; (2) hourly wage that Calloway would have earned during period of time of wrongful termination; (3) amount of deductible interim wages earned by Calloway; (4) other benefits that Calloway should have received during the period of wrongful terminatiоn; (5) award of prejudgment interest and post-judgment interest; and (6) award of attorney‘s fees.
A. Period of Wrongful Termination
{¶ 12} The following findings are based upon the briefs, answers to interrogatories, exhibits, and transcripts filed with this court. Calloway was terminated from his position as a Deputy Project Director on October 12,
| October 2007 | 0 days |
| November 2007 | 5 days |
| December 2007 | 21 days |
| January 2008 | 23 days |
| February 2008 | 21 days |
| March 2008 | 21 days |
| April 2008 | 22 days |
| May 2008 | 22 days |
| June 2008 | 21 days |
| July 2008 | 23 days |
| August 2008 | 21 days |
| September 2008 | 22 days |
| October 2008 | 17 days |
| Total Working Days | 239 days |
B. Calloway‘s Hourly Wage
{¶ 13} Based upon a total of 239 working days that Calloway was wrongfully excluded from employment, and an hourly rate of $21.64, we determine that the gross wages that Calloway would have earned during the period of wrongful termination was $41,375.68.4
| 239 days | x | ($21.64 x 8) | = | $41,375.68 |
C. Interim Wages earned by Calloway
{¶ 14} Having found that Calloway would have earned $41,375.68 during the period of wrongful termination, we must next determine the
{¶ 15} The respondents, in their attempt to estаblish the amount of interim wages that must be deducted from Calloway‘s gross wages, presented the following documents: (1) respondents’ request for production of documents; (2) W-2 wage and tax statements, provided to Calloway by the city of Cleveland for 2004 through 2008; (3) Calloway‘s 2008 1099-MISC income statement, provided by the Cuyahoga Metropolitan Housing Authority; (4) a summary of Ohio unemployment benefits received by Calloway between October 14, 2007, and October 11, 2008; (5) Calloway‘s 2006 federal tax return; (6) Calloway‘s 2006 state of Ohio tax return; (7)
{¶ 16} An examination of the documents provided by the respondents, in an attempt to establish the amount of interim wages that must be subtracted from the gross wages that Calloway should have earned from the city of Cleveland during his period of wrongful termination, demonstrates two supplemental sources of income: (1) Calloway‘s operation of a deck-building business (“his business“) known as C.K. Contractors; and (2) rent received from the rental of a two-family dwelling located in Cleveland. In 2006, Calloway received suрplemental income in the amount of $7,200, as rent, and $5,700, from his business. In 2007, Calloway received supplemental income in the amount of $4,800, as rent, and no income from his business. In 2008, Calloway received supplemental income in the amount of $4,135, as rent, and $14,650, from his business. Calloway also received Ohio Unemployment Benefits in the total amount of $15,132, during his period of wrongful termination.
| 2006 | 2007 | 2008 | |
| Rent | $7,200 | $4,800 | $4,135 |
| Contractor | $5,700 | $0 | $14,650 |
| Unemployment Compensation | $0 | $3,104 | $12,028 |
{¶ 18} No supplemental income from the contractor business was earned by Calloway in 2007. The supplemental business income of $14,650, earned by Calloway in 2008, constitutes interim income, but must be setoff by the amount earned in 2006. Thus, the amount of interim wages earned through Calloway‘s business, is $8,950, based on contractor income of $14,650 less $5,700, the amount earned in 2006 while Calloway was fully employed by the respondents. In addition, the full amount of $15,132, that was received by Calloway as unemployment compensation, must be considered interim wages. State ex rel. Guerrero v. Ferguson (1981), 68 Ohio St.2d 6, 427 N.E.2d 515; State ex rel. Crockett v. Robinson (1981), 67 Ohio St.2d 363, 423 N.E.2d 1099.
| 2007 | 2008 | Total | |
| Rent | $0 | $0 | $0 |
| Business | $0 | $8,950 | $8,950 |
| Unemployment Compensation | $3,104 | $12,028 | $15,132 |
| Total Interim Wages | $3,104 | $20,978 | $24,082 |
{¶ 19} Therefore, Calloway has established, with certainty, his entitlement to a back-pay award of $41,375.68 less interim wages of $24,082, which results in net back-pay of $17,293.68.
D. Other Benefits
{¶ 20} In addition to back-pay, Calloway seeks a 4% wage increase in his hourly wage, which allegedly was granted to all city of Cleveland employees in 2007 and 2008.6 Unlike the issue of Calloway‘s hourly wage, which was substantiated by the parties, Calloway simply states by way of an affidavit that he is entitled to a 2% pay increase for the years of 2007 and 2008. Calloway‘s self-serving affidavit, absent other testimony, evidence or stipulations, does not establish with certainty that he would have received any increase in his rate of pay. “Such an argument is purely speculativе and
{¶ 21} Calloway has also failed to establish, with the required certainty, that he is entitled to credit for any sick, holiday, vacation time or medical coverage that would have been earned during the period of his wrongful termination. State ex rel. Couch v. Trimble Local School Dist. Bd. of Edn., 120 Ohio St.3d 75, 2008-Ohio-4910, 896 N.E.2d 690; State ex rel. Mun. Constr. Equip. Operators’ Labor Council v. Cleveland, 114 Ohio St.3d 183, 2007-Ohio-3831, 870 N.E.2d 1174; State ex rel. Crockett v. Robinson, supra.
{¶ 22} Calloway, however, is entitled to have the respondents contribute to his Public Employees Retirement System (“PERS“) account, based upon the gross amount of back-pay of $41,375.68. “The board maintains that its duty to make PERS contributions should only be based upon the net amount of back pay found owing rather than the gross figure of * * *. Additionally, to allow the board to pay a reduced sum into [relator‘s] PERS account on the basis of a setoff for other funds received during the period of his dismissal
E. Prejudgment Interest
{¶ 23} An awаrd of prejudgment interest is available in contract and tort cases pursuant to
F. Attorney Fees
{¶ 25} Attorney fees are not recoverable as damages in a mandamus action that has been brought pursuant to
V. Conclusion
{¶ 26} For the foregoing reasons, we grant Callowаy‘s request for a writ of mandamus in part, and order the following: (1) the respondents shall pay to Calloway back-pay in the amount of $17,293.68 plus post-judgment interest per
{¶ 27} Accordingly, we grant Calloway‘s complaint for a writ of mandamus in part. Costs to the respondents. It is further ordered that the Clerk of the Eighth District Court of Appeals shall serve notice of this judgment upon all parties as required by
Writ granted in part.
COLLEEN CONWAY COONEY, ADMINISTRATIVE JUDGE
KENNETH A. ROCCO, J., and
PATRICIA A. BLACKMON, J., CONCUR