State ex rel. Lockard v. Wellston City School Dist. Bd. of Edn.State ex rel. Lockard v. Wellston City School Dist. Bd. of Edn.
Sue A. Salamido, Cloppert, Latanick, Sauter & Washburn, Columbus, Ohio, for Relator.
Sandra R. McIntosh, Freund, Freeze & Arnold, Columbus, Ohio for Respondent.
McFARLAND, A.J.,
{¶1} The Relator Tad Lockard filed a petition for writ of mandamus seeking to compel the Respondent Wellston City School District Board of Education to provide him with salary schedule service credit for his active duty military service and to provide back wages for the years he was not properly placed on the salary schedule. Lockard claims that he has been employed as a full-time teacher with Wellston since the 2007-2008 school year. Prior to his employment there, he served as a member of the Army Reserve and National Guard and he continues to serve in the National Guard. Lockard alleges that when he was hired by Wellston, he provided documentation of his military service, but was notified by Wellston that his service in the Army Reserve and National Guard did not qualify him for any service credit.
{¶2} During the 2013-2014 school year, however, he alleges that an administrator for Wellston informed him that his service in the Army Reserve and National Guard did entitle him to military service credit. Lockard alleges that military service credit may also be purchased through the State Teachers Retirement System (“STRS“) for retirement service credit. He contends that he contacted STRS and provided documentation of his military service and was told that he was entitled to purchase 2.44 years of service credit for retirement purposes. Lockard alleges that he contacted his union representative to determine if Wellston had provided him with false information concerning his military service credit and then retained counsel to contact Wellston. He contends that Wellston informed him that unless active duty service was for at least eight consecutive months, he had no right to receive any military service credit. Because Lockard‘s active duty service was performed in increments of less than eight months, Wellston argues that he is not entitled to any military service credit.
{¶3} Wellston filed an answer and a motion for judgment on the pleadings pursuant to
{¶4} Lockard opposes Wellston‘s motion for judgment on the pleadings, arguing for a different statutory interpretation of
{¶5} We find that Lockard‘s grievance is governed by the collective bargaining agreement, which provides a grievance procedure and arbitration. Therefore, Lockard has an adequate remedy in the ordinary course of law and is not entitled to the extraordinary judicial remedy of mandamus. Thus, we GRANT Wellston‘s motion and DISMISS Lockard‘s petition for a writ of mandamus.
Standard of Review
{¶6} A motion for judgment on the pleadings is governed by
A motion for judgment on the pleadings is the same as a motion to dismiss filed after the pleadings are closed and raises only questions of law. The pleadings must be construed liberally and in a light most favorable to the party against whom the motion is made, and every reasonable inference in favor of the party against whom the motion is made should be indulged. Vaught v. Vaught (1981), 2 Ohio App.3d 264, 2 OBR 293, 441 N.E.2d 811; Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 297 N.E.2d 113. The motion should be denied if it cannot be determined from the face of the pleadings that the pleading does not state a claim upon which relief can be granted.
Id., 33 Ohio App.3d at 348, 515 N.E.2d at 1005; see, also, Shockey v. Winfield, 97 Ohio App.3d 409, 411-412, 646 N.E.2d 911 (4th Dist. 1994); JP Morgan Chase Bank, N.A. v. Belden Oak Furniture Outlet, Inc., 5th Dist. Stark App. No. 2010CA49, 2010-Ohio-4444, ¶ 20 (“The main difference between a
{¶7} Both Lockard and Wellston have attached a number of documents to their complaint and answer. To his complaint, Lockard attached an affidavit of verification,
{¶8} In analyzing whether to consider documents attached to the complaint or the answer, we note that
This court considers the allegations in the complaint and the answer when deciding a motion for judgment on the pleadings. Pontious at 569. Pleadings are defined by rule as a complaint, answer, reply to a counterclaim, answer to a cross-claim, third-party complaint, and a third-party answer.
Civ.R. 7(A) . In this case, the record contains a verified complaint and an answer.
Civ.R. 10(C) provides that a “copy of any written instrument attached to a pleading is a part of the pleading for all purposes.” This court has not construed “written instrument” to mean any document attached to a pleading. Rather,the term “written instrument” in
Civ.R. 10(C) has primarily been interpreted to include documents that evidence the parties’ rights and obligations, such as negotiable instruments, “insurance policies, leases, deeds, promissory notes, and contracts.” 1 Klein & Darling, Baldwin‘s Ohio Practice (2004), 744–45. We conclude that a trial court‘s opinion in another matter is not the sort of written instrument proper for designation as “a part of the pleading” in the context of a motion for judgment on the pleadings.Inskeep v. Burton, 2d Dist. Champaign No.2007CA11, 2008–Ohio–1982, ¶ 17. But see Toman v. Humility of Mary Health Partners, 7th Dist.
Mahoning No. 13MA105, 2014–Ohio–4417, ¶ 9 (considering “any documents attached to those pleadings“). Here, Xenia and Norris have attached a number of documents to their answer, several of which are orders and opinions filed in the previous matters. We do not consider those opinions and orders. See Inskeep. Similarly, we do not consider pleadings filed in those other actions. We further conclude that the remaining attachments (excerpts of civil service rules, civil service meeting notes and transcript, and a memorandum concerning Xenia‘s position on Vandenbos‘s seniority credit) are more like a trial court‘s opinion than a negotiable instrument, insurance policy, deed, or contract, and likewise not the sort of written instrument proper for designation as “part of the pleading” under Inskeep. Thus, we consider the allegations contained in the verified complaint and the answer in deciding Respondents’ motion for judgment on the pleadings.
{¶9} We agree with the analysis in Vandenbos; not everything attached to a pleading is a “written instrument” under
{¶10} Mandamus actions are governed by
{¶11} The dispute between Lockard and Wellston involves whether Lockard has the right to compel Wellston to provide him with salary schedule service credit for his active duty military service and to provide back wages for the years he was not properly on the salary schedule as set forth in
Legal Analysis
{¶12} We first address whether Lockard has a plain and adequate remedy in the
{¶13} Under Article 3 of the Agreement, a grievance is defined as, “a claim that there has been a violation, misinterpretation, or misapplication of any provisions of this agreement.” Under the grievance procedures outlined in Article 3.03, claims of violations, misinterpretations, or misapplications of the Agreement proceed through a four-level process, culminating with arbitration before the American Arbitration Association. Experience credit, including active military credit, is governed by Article 15.01. Subpart B provides, “Experience granted on the salary schedule will be given only for credit allowed by the State Foundation Programs including up to five (5) years military credit.” The State Foundation Program referenced in Article 15.01(B) is detailed in
{¶14} Lockard concedes that his grievance with Wellston concerns its decision not to provide him with experience credit under Article 15.01(B) of the Agreement, but argues that he is not required to follow the grievance procedures. He contends that
{¶15} In Walker, the Court found that the collective bargaining agreement did not address calculation of days of substitute teaching experience for service credit purposes, therefore the parties’ dispute concerning service credit for substitute teaching experience was not covered by the collective bargaining agreement or the grievance procedures set forth therein. The Court also found no place in the agreement that addressed the school board‘s authority to revoke previously granted service credit. Thus, the Court did not base its decision on whether the dispute involved the interpretation of a statute, but on whether the “grievable issue” – service credit for substitute teaching and the revocation of it – fell within the scope of the collective bargaining agreement. Finding no provisions governing the grievance, the Court held that the arbitration procedure in the agreement did not constitute an adequate legal remedy in the ordinary course of law.
{¶16} Likewise, in Tapo, the parties had stipulated that the plaintiff-teachers were qualified for placement in a higher paying category on the salary schedule and that
{¶17} Here, the Agreement specifically provides for “Experience Credit” and incorporates the terms for the calculation of military credit in Article 15.01(B) by expressly referencing the State Foundation Program for military credit, which is set forth in
{¶18} In State ex rel. Williams, supra, a teacher brought a mandamus petition seeking to compel the school district to issue her a continuing contract. She argued that her grievance was statutorily excepted from the collective bargaining agreement under
{¶19} Next we addressed the question of whether the grievance procedures contained in the collective bargaining agreement provided her a plain and adequate remedy in the ordinary course of the law. We held that for a remedy to be adequate, “[t]he remedy should be complete in its nature, beneficial and speedy.” Id. at 8. The fact that the teacher had failed to pursue her right to arbitrate her grievance and was then precluded from doing so did not render her right to arbitrate inadequate. Id. If a party to an arbitration agreement could use their own delay to exempt themselves from arbitration and avail 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.
{¶20} We also noted that arbitration has been favored by the courts from early times and that most often “unions demand binding arbitration of grievances arising under the contract.” Id. at 9. “Because of the speed, low cost and the general competence, indeed expertise, of most arbitrators, arbitration is the most favored means of contract enforcement available to educational institutions.” Id. We noted that in Williams‘s case, the grievance procedure governed her dispute, “even though it may require the interpretation of statutory law as being incorporated into the collective bargaining agreement.” Id. The grievance procedure outlined in State ex rel. Williams
{¶21} Here, Lockard and Wellston agree that the Agreement contains provisions governing experience credit and military credit under the State Foundation Programs set forth in
Conclusion
{¶22} We find that Lockard‘s grievance is governed by the parties’ collective
{¶23} The clerk shall serve a copy of this order on all counsel of record and any unrepresented parties at their last known addresses by ordinary mail.
MOTION GRANTED. PETITION DISMISSED. IT IS SO ORDERED. COSTS TO RELATOR.
Harsha, J. & Abele, J.: Concur.
FOR THE COURT
Matthew W. McFarland
Administrative Judge
NOTICE
This document constitutes a final judgment entry and the time period for appeal commences from the date of filing with the clerk.
Pursuant to