State ex rel. Singer v. Fairland Local School Dist. Bd. of Edn. (Slip Opinion)State ex rel. Singer v. Fairland Local School Dist. Bd. of Edn. (Slip Opinion)
Mandamus—Public employment—
IN MANDAMUS.
FRENCH, J.
{¶ 1} In this original action, relator, Kurt Singer, seeks a writ of mandamus to compel respondent, Fairland Local School District Board of Education (“Fairland“), to recognize him as a “regular nonteaching school employee” under
Background
{¶ 2} Fairland hired Singer as a substitute custodian on September 11, 2006. Singer‘s employment as a substitute custodian has continued to the present. All the paystubs that Singer received from Fairland identify him as a “SUB CUST” (capitаlization sic), and Fairland‘s staff-attendance reports detail that Singer was “substituting” every date he worked for Fairland between September 2006 and June 30, 2016. Singer has never signed a written employment contract with Fairland. Singer nevertheless contends that he is a “regular nonteaching school employee” under
{¶ 3}
{¶ 5} In addition to the contract rights afforded by
{¶ 6} Singer alleges that Fairland wrongly designated him as a “substitute” and that as a result, he has been paid less than a full-time custodian, lost health benefits and some pension benefits, and been deprived of sick leave, personal days, vacation days, and holiday pay. Singer requests a writ of mandamus directing Fairland to recognize him as a regular nonteaching employee with a continuing contract pursuant to
Analysis
{¶ 7} Mandamus is the appropriate vehicle for vindicating rights under
{¶ 8} At the outset, we reject two theories that Fairland puts forward as grounds for denying Singer‘s petition. First, Fairland contends that Singer was not a regular nonteaching employeе because he did not have a written employment contract. According to Fairland,
{¶ 9} But
{¶ 10} In support of its argument on this point, Fairland cites Gates v. River Local School Dist. Bd. of Edn., 11 Ohio St.2d 83, 228 N.E.2d 298 (1967), which hеld that in the absence of an express employment contract, a school board could hire a nonteaching employee for an indeterminate period of time, to be measured by the work to be accomplished, without incurring an obligation to offer continuing employment. Id. at 90-91. But Gates involved a prior version of
{¶ 11} Second, Fairland suggests that Singer does not qualify as a regular nonteaching employеe because he does not qualify as a “full-time” employee, as that term is purportedly defined in the collective-bargaining agreements that have been in place since the date of Singer‘s hiring in 2006 between Fairland and the union that represents its nonteaching employees. Fairland has submitted an affidavit asserting that pursuant to those agreements, “full-time regular custodians, custodial maintenance, and maintenance employees at Fairland are contracted to work eight (8) hours a day for two hundred and sixty (260) days a year over the course of twelve (12) months” and has submitted several other affidavits making essentially the same assertion. No affidavit citеs a specific section of the collective-bargaining agreements where this provision may be found, and our review of the four collective-bargaining agreements filed as evidence shows that they contain no such term and do not purport to define “full-time” employment. Two of the collective-bargaining agreemеnts—those in effect from September 30, 2005, through September 29, 2008, and from October 1, 2014, through September 30, 2017—do, however, include appendices that chart contract amounts, i.e., annual salary schedules, for various positions, including custodians, and the hourly rates upon which those annual contract amounts are based. The hourly rates and annual salaries increase depending on an employee‘s years of service. At the bottom of the columns that detail the hourly rates that apply to custodians, the charts identify the months worked as 12, the hours per day as 8, and the contract days as 260.
{¶ 12}
{¶ 13} Fairland argues that the collective-bargaining agreements conflict with the definition of “year” in
{¶ 14} Whether or not Singer is a full-time еmployee, he is not entitled to continuing status unless he is also a regular nonteaching employee. State ex rel. Borders v. Jefferson Local School Dist., 59 Ohio St.2d 109, 110, 391 N.E.2d 1040 (1979); see also Blair v. Milford Exempted Village School Dist. Bd. of Edn., 62 Ohio App.3d 424, 429-430, 575 N.E.2d 1190 (12th Dist.1989) (suggesting in dicta that an employee hired to serve as a substitute on an as-needed basis was not a “regular” nonteaching employee), abrogated in part on other grounds, Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d 141, 2003-Ohio-5357, 797 N.E.2d 61; Wilson v. Hubbard Exempted Village School Dist. Bd. of Edn., 11th Dist. Trumbull No. 3129, 1983 WL 6168 (June 24, 1983) (holding that a substitute bus driver, who was hired without a contract, was assigned daily to а single route for the entire school year, and worked 35 hours a week, was not a regular nonteaching school employee). Having reviewed the evidence, we conclude that Singer has not demonstrated by clear and convincing evidence that he was a “regular nonteaching school employee” under
{¶ 15}
{¶ 16} Throughout his employment, Singеr‘s days of service have varied widely. For example, during the 2006-2007 school year, Singer worked as many as ten days during some pay periods but worked eight days or fewer in a majority of the pay periods, including several in which he worked four days or fewer. During the 2007-2008 school year, Singer‘s workdays per pay period ranged from four to ten days. And in summеr 2008, Singer did not work at all during three consecutive pay periods.
{¶ 17} Just as he had no regular schedule, Singer had no regular location to which he was assigned. Fairland has four school buildings—two elementary schools, a middle school, and a high school. Fairland assigns its full-time regular custodians to work at a single building, and the school board must apрrove the transfer of a full-time regular custodian from one building to another. But Fairland routinely assigned Singer to multiple schools during a single pay period. During the two-week pay period for September 28 through October 11, 2006, for example, Singer worked at three separate locations. In his first nine months of employment as a substitute custodian, there was only one pay period (out of 19) in which Singer was assigned to a single location, and that was a pay period in which he worked only one day. In fact, Singer often worked at more than one location on the same day. For example, during one period of time in May 2007 when Singer worked 17 days, he split his time on 12 of the days between one of the elementary schools and either the middle school or the high school.
{¶ 18} Fairland‘s records indicate that Singer was called to these multiple locations for irregular intervals and to substitute for many different employees. In the pay period for October 1 to 14, 2009, for example, Singer worked on eight different days, at two different locations, for intervals as brief as two hours and as long as eight hours, in substitution for four different full-time regular custodians. More recently, during the pay period for May 14 to 27, 2015, he worked a total of four days, substituting for three different full-time regular custodians.
{¶ 19} Finally, the manner in which Fairland requested Singer to work varied. Roni Hayes, the former principal of Fаirland High School and current district superintendent, stated in her affidavit that when she served as the high school principal, either she or her secretaries would contact substitutes, including Singer, from the district‘s approved substitute list to fill in for full-time regular custodians at the high school. Singer identified individuals at each of the Fairland school buildings who had cоntacted him to perform custodial work. At other times, however, Singer was not called in on a daily basis but was instead instructed to report to a particular work location daily until further notice. Singer
{¶ 20} Considering the entire arc of his employment, wе cannot conclude that Singer‘s employment was in any meaningful way “regular.” Accordingly, Singer has not established by clear and convincing evidence that he has a clear legal right to his requested relief or that Fairland had a clear legal duty to provide it. Singer therefore is not entitled to a writ of mandamus.
Writ denied.
O‘CONNOR, C.J., and O‘DONNELL, KENNEDY, FISCHER, and DEWINE, JJ., concur.
O‘NEILL, J., dissents, with an opinion.
O‘NEILL, J., dissenting.
{¶ 21} I must respectfully dissent. Specifically, I disagree with the majority‘s conclusion that relator, Kurt Singer, was not a “regular” employee as that term is used in
{¶ 22} Singer worked for ten school years for respondent performing the same tasks and working similar hours as “regular” custodians. The only differеnces between Singer and the “regular” custodians were that the school board never offered him a contract and referred to him as a “substitute” custodian. “Regular” and “substitute” are nothing more than labels that were used to shortchange Singer from receiving what he had earned. The substance of his work was as a “regular” custodian.
{¶ 23} To prevail in this mandamus case, Singer must demonstrate that the school board deprived him of something that he was entitled to receive. See 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, ¶ 12. From the facts presented, it is clear that Singer worked 120 days or more per year for the first seven years that he was employed by respondent. This was more days per year than many full-time custodians employed by respondent. There is no requirement that the hours he worked must be spread out evenly throughout the days he worked. Additionally, there were long stretches in which it was understood that Singer would simply show up for work each day without having to receive a call to report to work. While respondent asserts that Singer worked fluctuating hours at various schools within the district, there is no requirement that all of the work be performed at the
{¶ 24} Moreover, the purpose of the legislation at issue is to ensure that nontеaching workers employed by a school district are treated fairly and have some degree of job security. See Ohio Assn. of Pub. School Emps., Chapter No. 672 v. Twin Valley Local School Dist. Bd. of Edn., 6 Ohio St.3d 178, 182, 451 N.E.2d 1211 (1983). Based upon the precedent set by the majority‘s opinion, school districts could save money by refusing to offer contracts to employees and then changing the employees’ work sites from facility to facility on a daily or weekly basis and changing their hours periodically. If that were done, the employees could be denied “regular” status, with the result that the school districts could pay lower wages and avoid having to provide benefits or leave time. Surely that was not the intention of the state legislature.
{¶ 25} Therefore, I must dissent. I would grant the writ of mandamus to ensure that Singer is provided the full compensation and benefits that he deserves.
The Law Firm of Richard M. Lewis, L.L.C., Richard M. Lewis, Christen N. Finley, and Suzanna T. King; and the Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro, for relator.
Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, and Scott A. Sollmann, for respondent.