State ex rel. Johnston v. N. Olmsted City School Dist. Bd. of Edn.State ex rel. Johnston v. N. Olmsted City School Dist. Bd. of Edn.
JUDGMENT: COMPLAINT DISMISSED
DATED: February 22, 2024
Writ of Mandamus
Motion Nos. 566472 and 567000
Order No. 570293
Appearances:
Baasten, McKinley & Co., L.P.A., Brandon F. Harned and Rachel M. Reight, for relator.
Sсott Scriven LLP, Sandra R. McIntosh, and Jessica K. Philemond, for respondent.
MICHELLE J. SHEEHAN, P.J.:
{¶ 1} On May 8, 2023, the relator, Emily Johnston, commenced this mandamus action against the respondent, the North Olmsted City School District Board of Education (the Board), to compel the Board to place her at the
FACTUAL BACKGROUND
{¶ 2}
Teachers shall be placed on a schedule in accordance with the training and experiences described in these regulations. The placement of each teacher in a salary class shall be the highest class for which such teacher is qualified. For teachers new to the district, credit shall be grаnted for salary schedule placement for verified teaching service up to a maximum of twelve (12) years, in accordance with law.1
{¶ 4} Article 9 of the collective bargaining agreement controls the Grievance Procedure. Section 9.1.1 defines a Grievance as a claim by a teacher * * * that an alleged violation, misinterpretation or misapplication of a provision or provisions of this AGREEMENT has occurred. Section 9.2.2 provides that [i]f a teacher in the unit represented by the [Union] believes that there is a basis for a grievance the teacher must first discuss the matter with his [or her] principal or other immediate supervisor in an effort to resolve the matter informally. Section 9.3 then specifies the rest of the grievance procedure. If the grievance is not resolved through the informal process, then the teacher or the Union must file a written agreement with the principal or immediate supervisor, pursuant to a specified form and within a strict time period. The principal or immеdiate supervisor must meet with the grievant within five days and must give a written disposition within five days of the meeting. If the grievant is not satisfied with the result, the grievant must file a written appeal to the superintendent. If the grievant is not satisfied with the result, then the final step in the grievance procedure is binding arbitration.
{¶ 5} Johnston avеrs that prior to the 2018-2019 school year, she signed a contract with the Board placing her at the pay grade of Masters and Step 10. Subsequently, a new human resources director informed her that the previous
{¶ 6} The Board attached the first Letter of Acceptance, signed June 20, 2018. It shows that Johnston agreed to accept employment with educational experience of MA Step 10. The letter further provides:
This offer is contingent upon being able to verify the above educational experience. Also, you will be requirеd to have proper certification for your area of teaching. Upon acceptance, your name will be presented to the Board of Education of the North Olmsted City Schools at an appropriate time. Later, a formal contract will be forwarded to you.
The Board also attached the second Letter of Acceptance signed July 11, 2018, placing Johnston at MA Step 6. The actual contract between the Board and Johnston, signed July 20, 2018, is also attached to the answer. The Board avers that a Letter of Acceptance is not a cоntract until the Board approves it.
{¶ 7} Johnston maintains that the contract and statutes require the Board to give her ten years of service credit. Consequently, she filed this mandamus action. Johnston argues that she could not have filed a grievance prior to beginning her employment. The Board сounters that, even if that were true, Johnston could have filed a grievance on the first day of her employment or on any of the following 25 days pursuant to Article 9.3.1 of the Agreement. It is undisputed that Johnston has never filed a grievance related to this matter.
{¶ 8} The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief and (3) there must be no adequate remedy at law. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987), and State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41, 374 N.E.2d 641 (1978). Furthermore, if the relator had an adequate remedy, regardless of whether it was used, reliеf in mandamus is precluded. State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 676 N.E.2d 108 (1997), and State ex rel. Boardwalk Shopping Ctr., Inc. v. Court of Appeals for Cuyahoga Cty., 56 Ohio St.3d 33, 564 N.E.2d 86 (1990). Mandamus is an extraordinary remedy that is to be exercised with caution and only when the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel. Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14 (1953); State ex rel. Connole v. Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (8th Dist.1993); and State ex rel. Dayton-Oakwood Press v. Dissinger, 32 Ohio Law Abs. 308 (1940).
{¶ 9} This court rules that the grievance procedure provided Johnston with аn adequate remedy that now precludes mandamus. A claim of improper placement on the salary schedule comes within the definition of a grievance, a violation, misinterpretation, or misapplication of the agreement.
{¶ 10} State ex rel. Johnson v. Cleveland Hts./Univ. Hts. School Dist. Bd. оf Edn., 73 Ohio St.3d 189, 652 N.E.2d 750 (1995), is controlling. In that case, the
{¶ 11} Similarly, in State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn., 71 Ohio St.3d 26, 641 N.E.2d 188 (1994), mandamus was not available to those teachers who were covered by the collective bargaining agreement because the agreement‘s grievance and arbitration procedures were adequate remedies. In Stаte ex rel. Lockard v. Wellston City School Dist. Bd. of Edn., 2015-Ohio-2186, 35 N.E.3d 880 (4th Dist.2015), mandamus was not available to a teacher seeking military service credit because the collective bargaining agreement‘s grievance and arbitration procedure provided an adequate remedy at law.
{¶ 12} The cases сited by Johnston are distinguishable and unpersuasive. Johnston relies heavily on Tapo v. Columbus Bd. of Edn., 31 Ohio St.3d 105, 509 N.E.2d 419 (1987). In that case, the teachers had claimed that they had been
{¶ 13} However, in Johnson, supra, the Supreme Court of Ohio distinguished Tapo because the parties had stipulated that the teachers were entitled to their proper placement on the salary schedules; thus, there was nothing to arbitrate. The court specifically held that Tapo did not relieve Johnson of her adequate remedy through the grievance procedure.
{¶ 14} State ex rel. Stuckey v. Washington Court House City School Dist., 12th Dist. Fayette No. CA89-07-018, 1990 Ohio App. LEXIS 587 (Fеb. 20, 1990), did not address the issue of an adequate remedy at law; rather, the court held that a 12-year delay in bringing the action precluded the writ because of laches. In Crawford v. Bd of Edn., 6 Ohio St.3d 324, 453 N.E.2d 627 (1983); State ex rel. Fenske v. McGovern, 11 Ohio St.3d 129, 464 N.E.2d 129 (1984); State ex rel. Gingrich v. Fairfield City Bd. of Edn., 18 Ohio St.3d 244, 480 N.E.2d 485 (1985); State ex rel. Madden v. Windham Exempted Village School Dist. Bd. of Edn., 42 Ohio St.3d 86, 573 N.E.2d 646 (1989); Milliron v. Cloverleaf Local School Dist. Bd. of Edn., 9th Dist. Medina No. 2450-M, 1996 Ohio App. LEXIS 600 (Feb. 21, 1996); and State ex rel. Fink v. Bd. of Edn., 10th Dist. Franklin No. 93APE10-1462, 1994 Ohio App. LEXIS 2009 (May 12, 1994), there is no mention of a grievance procedure in a contract that would pose an impediment to mandamus. In fact, in Madden, supra, the court specifically stated that there was nothing in the record to show that relator had an adequate remedy at law. Similarly, Maple Heights Teachers Assn. v. Maple Hts. Bd. of Edn., 6 Ohio St.3d 314, 453 N.E.2d 619 (1983), is distinguishable because it was brought as a breach-of-cоntract action and the plaintiffs had exhausted their applicable contractual procedures.
{¶ 15} Johnston argues that because she was not a member of the Union when she signed the contract, she could not invoke the grievance procedure. Therefore, she argues that the grievance procedure did not and does not provide an adequate remedy that would preclude mandamus. The Board has repeatedly countered Johnston‘s position by pointing out she could have filed a grievance on the first day of her employment or on any of the following 25 days pursuant to Article 9.3.1 of the Agreement. Johnston has not addressed this fact; nor has she offered any explanation as to why she has never filed a grievance other than to suggest she could not be made whole at this point. Her complaint in mandamus demonstrates that she disagreed with the lоwer salary placement when she signed the second letter of acceptance on July 11, 2018. Complaint at ¶ 12. While her explanation that she felt compelled to do so is plausible, it also establishes that she was aware of the issue
{¶ 16} Johnston maintains that pursuing a grievance and arbitration under the Agreement now is not an adequate remedy because it can only provide her prospective reliеf and not retroactive relief for the past five years she has worked without pursuing a grievance. Other courts have rejected similar arguments. In State ex. Rel. Lockard v. Wellston City Sch. Dist. Bd. of Edn., 4th Dist. Jackson No. 14CA5, 2015-Ohio-2186, ¶ 19, the Fourth District Court of Appeals noted, [t]he fact that the teacher had failed to pursue her right to arbitrаte her grievance and was then precluded from doing so did not render her right to arbitrate inadequate. Id., citing State ex. rel. Williams v. Belpre City School Dist. Bd. of Edn., 41 Ohio App.3d 1, 8, 534 N.E.2d 96 (4th Dist.1987). The court further observed, If a party to an arbitration agreement could use their own delay to exempt themselves from arbitration and avаil themselves of court, no arbitration agreement would be enforceable — a party could simply wait it out until the right to arbitrate expired and pursue a claim in court. Id. at ¶ 19. Johnston does not dispute that she was aware of this grievance before she started working. Therefore, her argument that the grievance procedure does not provide her an adequate remedy is not persuasive, because she could have and should have filed her grievance as soon as she received her official contract and became a member of the Union. Accordingly, beсause the relator had an adequate remedy at law that precludes mandamus and that is
{¶ 17} Complaint dismissed.
_________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS (WITH SEPARATE OPINION ATTACHED)
MARY EILEEN KILBANE, J., DISSENTING:
{¶ 18} I respectfully dissent because the bait and switch by the North Olmsted Board of Education is wrong and violates its own rules. Johnston‘s unwarranted loss of service credit must be restored. For the following reasons, I would grant the writ of mandamus.
{¶ 19} On June 20, 2018, Johnston executed a Letter of Acceptance that offered ten years of service credit, аnd she anticipated executing an employment contract that included those terms. However, rather than presenting the agreed upon terms in an employment contract, the Board claimed their former human resources employee made an error in calculating Johnston‘s service credit that
{¶ 20} As stated by the majority, Johnston did not file a grievance with the Board disputing the loss of four years of service credit but now seeks, through a mandamus action, relief for the inadequate service credit agreed to in 2018.
{¶ 21} If a collective bargaining agreement does not address a specific topic or issue, the matter is governed by state and local laws. {¶ 22} For these reasons, I respectfully dissent.