THE STATE EX REL. NICHOLS, N.K.A. DELACEY, APPELLANT, v. CUYAHOGA COUNTY BOARD OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, APPELLEE.
No. 94-1133
SUPREME COURT OF OHIO
May 17, 1995
72 Ohio St.3d 205 | 1995-Ohio-215
Mandamus to compel Cuyahoga County Board of Mental Retardation and Developmental Disabilities to reinstate occupational therapist to her former position and pay of back wаges—Writ denied, when. Submitted March 21, 1995. APPEAL from the Court of Appeals for Cuyahoga County, No. 66315.
{¶ 2} Following a meeting between McLaughlin and union representatives, which Nichols did not attend, appellee sent a letter to the union and Nichols purporting to incorporate the terms of a settlеment reached at the meeting. Under the agreement, Nichols would resign from her position effective February 3, 1984 in exchange for certain concessions from appellee.
{¶ 4} Nichols appealed to the State Personnel Board of Review (“SPBR“), which dismissed her appeal because of a lack of jurisdiction based on its determination that Nichols had voluntarily resigned. The Cuyahoga County Court of Common Pleas affirmed SPBR‘s order. On further appeal, the Court of Appeals for Cuyahoga County reversed the judgment and remanded the cause to the common pleas court. Nichols v. Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities (Sept. 25, 1986), Cuyahoga App. No. 50877, unreported (”Nichols I“). The court of appeals determined that Nichols‘s resignation was forced rather than voluntary and that she was therefore denied her right to procedurаl due process when she was denied a pretermination hearing and
{¶ 5} On remand from the court of appeals, Nichols filed a “motion” for writ of mandamus pursuant to
{¶ 6} On November 10, 1987, SPBR again dismissed Nichols‘s аppeal because of a lack of jurisdiction. This time the SPBR relied upon
{¶ 7} In Nichols v. Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities (Dec. 3, 1992), Cuyahoga App. No. 61111, unreported (”Nichols II“), the court of appeals affirmed the judgment of the common pleas court. The court of appeals rejected Nichols‘s claim that SPBR and the common pleas court had failed to follow Nichols I on remand аnd also held that Nichols had waived her rights to a pretermination hearing and an appeal to the board by submitting her claim to final and binding arbitration. The court of appeals further held that it lacked jurisdiction to rule on Nichols‘s contention that the common pleas court erred in overruling her 1987 motion for a writ of mandamus, since her notice of appeal was filed three and one-half years after thе denial of her motion. Nichols‘s motion to certify the record in Nichols II was overruled by this court on April 28, 1993. 66 Ohio St.3d 1466, 611 N.E.2d 325.
{¶ 8} On October 19, 1993, Nichols filed a complaint in the court of appeals for a writ of mandamus compelling appellee to reinstate her to her former position of occupational therapist and award damages, including back pay during the period of her alleged wrongful removal. The court of appeals subsequently granted appellee‘s motion for summary judgment and denied the writ. State ex rel. Nichols v. Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities (Mar. 28, 1994), Cuyahoga App. No. 66315, unreported.
{¶ 9} The cause is now before this court upon an appeal as of right.
Barry L. Sweet and Judith M. Kowalski, for appellant.
Thompson, Hine & Flory, Gregory A. Jaсobs, Carl H. Gluek and Mauritia G. Kamer, for appellee.
{¶ 10} In order to be entitled to a writ of mandamus, Nichols had to establish a clear legal right to reinstatement and damages, a corresponding clear legal duty on the part of appellee, and the absence of an adequate remedy in the ordinary course of law. State ex rel. Seikbert v. Wilkinson (1994), 69 Ohio St.3d 489, 633 N.E.2d 1128.
{¶ 11} “[B]efore a writ of mandamus will issue to compel a classified employee‘s reinstatement or back pay, there must be a final determination made in an appeal from SPBR, a local civil service commission, or other quasi-judicial authority that the employee was ‘wrongfully excluded from employment.‘” State ex rel. Weiss v. Indus. Comm. (1992), 65 Ohio St.3d 470, 476, 605 N.E.2d 37, 41, and the cases cited therein. Prior to a determination of wrongful exclusion, mandamus does not lie. Id. at 477, 605 N.E.2d at 42.
{¶ 12} Nichols concedes that the foregoing holding of State ex rel. Weiss applies but claims that her “mandamus action merely seeks to enforсe the Nichols I judgment on the merits of her wrongful removal.” However, Nichols I did not constitute a final determination that Nichols had been wrongfully excluded from her position as an occupational therapist for appellee. Instead, the court of appеals’ determination in Nichols I was limited to disaffirming SPBR‘s conclusion that it lacked jurisdiction because Nichols had voluntarily resigned. On remand, SPBR relied upon a different rationale to determine it lacked jurisdiction, i.e., the provision for final and binding arbitration in the collective bargaining agreement and
{¶ 13} Additionally, although in State ex rel. Schneider v. N. Olmsted City School Dist. Bd. of Edn. (1992), 65 Ohio St.3d 348, 350, 603 N.E.2d 1024, 1025, and State ex rel. Rose v. James (1991), 57 Ohio St.3d 14, 565 N.E.2d 547, mandamus was recognized as appropriate to compel both reinstatement and back pay, these cases involved actions instituted following a final determination of wrongful exclusion. In State ex rel. Schneider, relator instituted a mandamus action following disaffirmance of termination in a civil service appeal, and State ex rel. Rose involved a mandamus action filed after a grievance hearing officer‘s reinstatement order.
{¶ 14} The issues that were necessarily decided in Niсhols‘s second SPBR appeal were the same issues raised in her subsequent mandamus action. In determining that SPBR correctly held that it lacked jurisdiction due to
{¶ 15} Further, a writ of mandamus will not be issued whеn there is a plain and adequate remedy in the ordinary course of the law. State ex rel. Gillivan v. Bd. of Tax Appeals (1994), 70 Ohio St.3d 196, 199, 638 N.E.2d 74, 76;
{¶ 16} In State ex rel. Schneider, supra, 65 Ohio St.3d at 350, 603 N.E.2d at 1026, quoting State ex rel. Cartmell v. Dorrian (1984), 11 Ohio St.3d 177, 178, 11 OBR 491, 492, 464 N.E.2d 556, 558, we held:
“The faсt that appellant failed to timely pursue his right of appeal does not make that remedy inadequate. If that were the case, this criterion for a writ of mandamus would be met whenever the oppоrtunity to pursue another adequate remedy expired. Would-be appellants could thwart the appellate process simply by ignoring it.”
{¶ 17} Similarly, the fact that Nichols pursued her adequate remedies of arbitration and civil service appeals and failed to receive a favorable decision does not render those remedies inadequate. A contrary conclusion would allow grievants and appellants who do not prevail to circumvent these processes. “Where a plain and adequate remedy at law has been unsuccessfully invoked, the extraordinary writ of mandamus will not lie either to relitigate the same question or as a substitute for appeal.” State ex rel. Inland Properties Co. v. Court of Appeals of the Eighth Appellate Dist. of Ohio (1949), 151 Ohio St. 174, 176, 39 O.O. 15, 16, 84 N.E.2d 922, 923; State ex rel. Stanley v. Cook (1946), 146 Ohio St. 348, 32 O.O. 419, 66 N.E.2d 207, paragraphs five and nine of the syllabus.
{¶ 18} Since there was no final determination establishing Nichols‘s wrongful exclusion from employment, and Nichols possessed adequate remedies at law, the court of appeals properly denied the writ. State ex rel. Weiss and State ex rel. Stanley, supra. Therefore, based on the foregoing, any claimed error by the court of appeals in holding that res judicata barred Nichols‘s claims is harmless.
{¶ 19} Accordingly, the judgment of the court of appeаls is affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
WRIGHT and COOK, JJ., concur in part and dissent in part separately.
COOK, J., concurring in part and dissenting in part.
{¶ 20} The filing of this second mandamus action and the appeal to this court is plainly frivolous conduct for which I would award attorney fees as a sanction.
WRIGHT, J., concurs in the foregoing opinion.