State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn.

[This decision has been published in Ohio Official Reports at 97 Ohio St.3d 269.]

[THE STATE EX REL.] STACY, APPELLANT, v. BATAVIA LOCAL SCHOOL

DISTRICT BOARD OF EDUCATION ET AL., APPELLEES.

[Cite as State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn., 2002-

Ohio-6322.]

Employer and employee—Public employment—School district outsources

transportation services and lays off its bus drivers and mechanic—

Mandamus to compel Batavia Local School District Board of Education

et al. to reinstate relator to his position as a mechanic, honor his statutory

employment contract, and award him back pay and lost benefits—Court

of appeals’ denial of writ reversed and cause remanded for issuance of a

writ and further proceedings, when.

(No. 2002-0672—Submitted October 15, 2002—Decided December 4, 2002.)

APPEAL from the Court of Appeals for Clermont County, No. CA2000-10-077,

2002-Ohio-1015.

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Per Curiam.

{¶1} Appellee Batavia Local School District Board of Education employed

appellant, Dorsie Stacy, as a mechanic under a continuing contract for

approximately 13½ years, from March 1985, until August 21, 1998. At the end of

the 1997-1998 school year, the board employed 13 bus drivers and Stacy as the sole

bus mechanic.

{¶2} On June 22, 1998, the board executed a contract with Laidlaw Transit,

Inc., to provide transportation services for the school district for five years. On July

20, 1998, the board abolished the bus driver and mechanic positions and laid off

the employees in those positions, including Stacy, effective August 21, 1998. The

affected employees received written notification of the layoff, which provided that

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“[r]einstatement to employment shall be made from the list of laid off employees

in order of seniority.”

{¶3} Under its contract with the board, Laidlaw agreed to offer employment

to the laid-off employees, to provide a three percent increase in pay and comparable

benefits to these employees, and to permit them to receive the same severance pay

that they would have been entitled to from the board upon retirement. On June 24,

1998, Laidlaw offered Stacy employment as a bus mechanic, but Stacy refused it.

{¶4} Before February 24, 1998, Stacy had contacted the School Employees

Retirement System (“SERS”) to determine his benefits if he retired from

employment with the board when he turned 62 in early 1999. By letter dated

February 24, 1998, SERS sent him an estimate of his retirement benefits, which

assumed a retirement date of April 1, 1999.

{¶5} Subsequent to the board’s abolishment of his job and the notification

concerning his layoff, on August 12, 1998, Stacy tendered his written resignation

from employment with the board. In his letter, Stacy stated, “Due to my

resignation, for the purpose of retirement (effective August 21, 1998) I hereby

request to be paid for all unused vacation days, and personal days.” The board

accepted Stacy’s resignation on August 17, 1998, and Stacy’s final day of work was

August 21, 1998. Stacy did not assert that he had been forced out of his job. Stacy

received his final paycheck and severance pay from the board, and he began

receiving SERS and Social Security benefits.

{¶6} On August 20, 1998, Ohio Association of Public School

Employees/AFSCME, Local 4, AFL-CIO, the representative of the bargaining unit

that included school bus drivers and Stacy as the lone mechanic, requested that the

board honor the statutory employment contracts and continue to employ them for

school year 1998-1999 and thereafter. At the time of the union’s written request,

Stacy had already tendered his resignation to the board and the board had accepted

it.

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January Term, 2002

{¶7} On August 24, 1998, the union and the individual school bus drivers

commenced an action for a writ of mandamus to compel the board, its

superintendent, its treasurer, and its president to reinstate them and award back pay

and lost benefits. Stacy was not a party to the action. After the court of appeals

denied the writ, this court, on June 21, 2000, reversed the judgment, granted the

writ, and remanded the cause to the court of appeals for a determination of back

pay and fringe benefits. State ex rel. Ohio Assn. of Pub. School Emp./AFSCME,

Local 4, AFL-CIO v. Batavia Local School Dist. Bd. of Edn. (2000), 89 Ohio St.3d

191, 729 N.E.2d 743 (“OAPSE”). In so holding, we concluded that the board was

not authorized to lay off the bus drivers, the contracting-out of these jobs to Laidlaw

was invalid, and the bus drivers were entitled to reinstatement. Id.

{¶8} Shortly after our judgment was entered, Stacy asked the board by letter

dated July 17, 2000, to be reinstated as a school bus mechanic. From September 1,

1998, until July 2000, he did not apply for any other job. The board did, however,

reinstate all of the laid-off bus drivers, who, unlike Stacy, had not retired from their

jobs.

{¶9} On October 10, 2000, Stacy filed a complaint in the Court of Appeals

for Clermont County for a writ of mandamus to compel appellees, the board, its

president, its superintendent, and its treasurer, to reinstate him to his position as a

mechanic, honor his statutory employment contract, and award him back pay and

lost benefits. Stacy claimed that the court’s judgment in OAPSE had a “preclusive

effect against [appellees] on all similar and dispositive issues” in the case. Stacy

further claimed that he had been wrongfully excluded from employment with the

board.

{¶10} The parties subsequently submitted evidence and briefs. In his

deposition, Stacy testified that if the board had not executed the contract with

Laidlaw and notified him of his layoff, he would not have retired in 1998. Stacy

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further testified that he was advised that if he did not sign the resignation letter on

August 12, 1998, he would not receive his severance pay upon retirement.

{¶11} On March 11, 2002, the court of appeals denied the writ. The court

of appeals held that Stacy’s voluntary retirement from employment with the board

waived any right to reinstatement and back pay.

{¶12} This case is now before the court for consideration of the parties’

requests for oral argument and the merits of Stacy’s appeal.

Oral Argument

{¶13} The parties request oral argument in this appeal. We deny the

requests. S.Ct.Prac.R. IX(2) does not require oral argument in this appeal, and the

parties’ briefs are sufficient to resolve this case. Johnson v. Timmerman-Cooper

(2001), 93 Ohio St.3d 614, 615, 757 N.E.2d 1153. Although one of the issues raised

in this appeal might be considered, as appellant contends, a matter of first

impression for this court, this appeal involves no substantial constitutional issue,

conflict between courts of appeals, or sufficiently complex legal or factual matters

that would benefit from oral argument. See State ex rel. Woods v. Oak Hill

Community Med. Ctr., Inc. (2001), 91 Ohio St.3d 459, 460, 746 N.E.2d 1108.

{¶14} Therefore, oral argument is not warranted.

Mandamus: Collateral Estoppel

{¶15} Stacy asserts that the court of appeals erred in denying the writ of

mandamus. Stacy initially contends that our judgment in OAPSE collaterally

estopped appellees from contesting his right to reinstatement, back pay, and lost

benefits.

{¶16} “The doctrine of issue preclusion, also known as collateral estoppel,

holds that a fact or a point that was actually and directly at issue in a previous action,

and was passed upon and determined by a court of competent jurisdiction, may not

be drawn into question in a subsequent action between the same parties or their

privies, whether the cause of action in the two actions be identical or different.”

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January Term, 2002

Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd. (1998), 81 Ohio

St.3d 392, 395, 692 N.E.2d 140; Norwood v. McDonald (1943), 142 Ohio St. 299,

27 O.O. 240, 52 N.E.2d 67, paragraph three of the syllabus. Consequently,

collateral estoppel prevents parties from relitigating in a subsequent case facts and

issues that were fully litigated in a previous case. State ex rel. Shemo v. Mayfield

Hts. (2002), 95 Ohio St.3d 59, 64, 765 N.E.2d 345.

{¶17} Contrary to Stacy’s assertions, the issue of the right of public

employees who resigned following notice of being laid off to be reinstated to their

former employment with the board was never litigated in OAPSE. Stacy was not a

party to that case, and none of the individual relators therein had retired before their

layoff became effective. Stacy in effect concedes that this issue was not previously

litigated by stating in his appellate brief, “Admittedly, Stacy’s retirement was not

litigated in [OAPSE].” In fact, in a post-OAPSE case, we ordered a board of

education to reinstate those relator bus drivers and mechanics who had not retired

after the board abolished their positions and subcontracted school busing services

to Laidlaw. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn. (2001),

93 Ohio St.3d 558, 565, 757 N.E.2d 339.

{¶18} Therefore, our judgment in OAPSE did not collaterally estop

appellees from claiming that Stacy’s retirement waived his entitlement to

reinstatement and back pay. See, e.g., State ex rel. Stackhouse v. Becker (Dec. 14,

1994), Lake App. No. 94-L-024, 1994 WL 721693 (no duty to reinstate public

employee who had voluntarily retired); Phillips v. W. Holmes Local School Dist.

Bd. of Edn. (Mar. 20, 1990), Holmes App. No. CA-407, 1990 WL 41584 (public

employee waived his right to reinstatement and back pay by voluntarily retiring

under board of education’s early-retirement incentive plan).

Mandamus: R.C. 3319.081

{¶19} It is axiomatic that “[a] wrongfully excluded public employee may

obtain back pay and related benefits in a mandamus action following reinstatement

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or, in some cases, may obtain reinstatement and back pay and related benefits in

the same mandamus action.” Boggs, 93 Ohio St.3d at 563, 757 N.E.2d 339.

{¶20} Although collateral estoppel does not establish liability on the part of

appellees, precedent does. R.C. 3319.081 prohibited the board from abolishing the

positions of school bus driver and mechanic, laying off public employees in those

positions, and contracting out those jobs to a private entity. OAPSE, 89 Ohio St.3d

at 195, 729 N.E.2d 743; Boggs, 93 Ohio St.3d at 561, 757 N.E.2d 339. Consistent

with OAPSE and Boggs, the board’s actions were invalid because they violated

R.C. 3319.081, and Stacy—assuming that he did not waive his rights—was not

properly terminated from his continuing-contract status as a mechanic employed by

the board.

Mandamus: Waiver

{¶21} The court of appeals held that Stacy waived his right to reinstatement

because he voluntarily retired from his school bus mechanic position with the

board.

{¶22} Waiver is a voluntary relinquishment of a known right. State ex rel.

Wallace v. State Med. Bd. of Ohio (2000), 89 Ohio St.3d 431, 435, 732 N.E.2d 960.

Waiver is generally applicable to all personal rights and privileges, whether

contractual, statutory, or constitutional. State ex rel. Athens Cty. Bd. of Commrs. v.

Gallia, Jackson, Meigs, Vinton Joint Solid Waste Mgt. Dist. Bd. of Directors

(1996), 75 Ohio St.3d 611, 616, 665 N.E.2d 202. The burden is on the public

employer to prove that waiver applies, and it may be enforced if the employer had

a duty to perform and changed its position as a result of the waiver. Chubb v. Ohio

Bur. of Workers’ Comp. (1998), 81 Ohio St.3d 275, 279, 690 N.E.2d 1267.

{¶23} In examining the circumstances surrounding Stacy’s retirement here,

it is evident that Stacy retired in August 1998 only because the board illegally

abolished his position and laid him off and contracted out the same work to

Laidlaw. “[A]n election to retire should not be considered voluntary when the

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employee’s only alternative is a layoff or other reduction in work.” See Res. Mining

Co. v. Anderson (Minn.App.1985), 377 N.W.2d 494, 497, and cases cited therein;

Fiskewold v. H.M. Smyth Co., Inc. (Minn.App.1989), 440 N.W.2d 164.

{¶24} The facts relied upon by the court of appeals to hold otherwise do not

render Stacy’s retirement involuntary. In concluding that Stacy had waived his

right to reinstatement, the court of appeals noted that Stacy refused an offer of

employment with Laidlaw, requested and received an estimate of benefits that he

would be entitled to from SERS based upon a retirement date in early 1999, did not

join in the OAPSE action, and did not argue that his retirement was involuntary

until after the OAPSE decision.

{¶25} Stacy’s refusal of an offer of employment with Laidlaw is irrelevant

to the determination of whether his retirement was voluntary. It does, however,

bear on the post-liability issue of mitigation of damages. In other words, reinstated

public employees seeking to recover compensation due for a period of wrongful

exclusion from employment may have that compensation reduced if the employer

establishes with reasonable certainty the amount that the wrongfully excluded

employee could have earned in appropriate employment during the period of

exclusion. State ex rel. Martin v. Bexley City School Dist. Bd. of Edn. (1988), 39

Ohio St.3d 36, 528 N.E.2d 1250, syllabus. The court of appeals in effect conceded

that Stacy’s refusal of employment with Laidlaw was irrelevant to the board’s duty

to reinstate Stacy. The court observed that “[t]he reasons behind requiring a person

who has been laid off or otherwise denied an employment opportunity to take

available ‘substantially similar’ employment can be found in the common law duty

to minimize damages.” (Emphasis added.) It would be nonsensical to require a

public employee like Stacy to accept an offer of employment for a job that was

created illegally, see OAPSE and Boggs, in order to retain his right to continued

public employment. And as a Laidlaw employee, Stacy would not have had the

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same protections as a public employee of the board, e.g., union representation and

termination of employment only for the reasons specified in R.C. 3319.081(C).

{¶26} Moreover, the fact that Stacy requested and received an estimate of

retirement benefits before he was notified of the abolition of his position and his

layoff is not credible evidence that he voluntarily retired. Stacy’s request was for

an estimate of retirement benefits when he reached 62 in March 1999. He

ultimately retired in August 1998 because of the board’s illegal actions in abolishing

his position, laying him off, and outsourcing his work to a private company. And

“conduct in applying for and receiving retirement benefits does not necessarily

indicate [his] intent to give up [his] right to continued [public] employment.” See

Meyer v. Chagrin Falls Exempted Village School Dist. Bd. of Edn. (1983), 9 Ohio

App.3d 320, 324, 9 OBR 587, 460 N.E.2d 269.

{¶27} Nor is Stacy’s failure to join in the OAPSE action dispositive of the

voluntariness issue. It is immaterial whether Stacy knew about the suit before he

decided to retire, which was soon after being notified of the abolition of his position

and his layoff from public employment. “ ‘The mere initiation of litigation is not

such evidence of eventual success as to have required [an employee] to stake his

sustenance on its outcome.’ ” Yuni v. Merit Systems Protection Bd.

(C.A.Fed.1986), 784 F.2d 381, 387, quoting Covington v. Dept. of Health & Human

Serv. (C.A.Fed.1984), 750 F.2d 937, 942.

{¶28} In addition, Stacy did not need to lodge a protest when he retired.

Any such protest would have been futile. The board was unwilling to void its

actions until the court’s decision in OAPSE.

{¶29} The court of appeals and appellees also erred in relying on Phillips

and Stackhouse to support that court’s holding that Stacy waived his right to

reinstatement by retiring. In Phillips, the employee retired even though he failed

to pursue an opportunity to remain employed by the board. In Stackhouse, the

employee retired and then attempted to return after he was informed that disability

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retirement benefits awarded following his retirement would cease within two years

after his retirement. Unlike the employee in Phillips, Stacy had no option to remain

employed by the board, and unlike the employee in Stackhouse, he retired only after

being notified that his position was being abolished and he would be laid off. Both

cases are consequently distinguishable.

{¶30} Therefore, an examination of all of the material facts establishes that

appellees failed to prove that Stacy voluntarily relinquished his right to challenge

the board’s actions in abolishing his position and laying him off. Stacy’s August

1998 retirement was involuntary because it was precipitated by the board’s illegal

actions. Once Stacy became aware that he had a right to reinstatement, soon after

the OAPSE decision, he promptly requested reinstatement to his former position

with the board. Stacy’s retirement was involuntary, and he was entitled to a writ of

mandamus compelling his reinstatement. The court of appeals erred in denying the

writ.1

Back Pay and Fringe Benefits

{¶31} Because the court of appeals erroneously denied the writ to compel

Stacy’s reinstatement, it did not address Stacy’s claim for back pay and lost

benefits. Therefore, remand is appropriate to resolve that issue. See, e.g., State ex

rel. Chavis v. Sycamore City School Dist. Bd. of Edn. (1994), 71 Ohio St.3d 26, 35,

641 N.E.2d 188 (“Since damages and other issues, e.g., interest, have not yet been

resolved, the court of appeals must address these issues on remand”).

Conclusion

{¶32} Based on the foregoing, we reverse the judgment of the court of

appeals and remand the cause for the issuance of a writ of mandamus compelling

1. Our standard of review requires deference to the court of appeals’ factual determinations on the

voluntariness issue if they were supported by competent, credible evidence. State ex rel. Elsass v.

Shelby Cty. Bd. of Commrs. (2001), 92 Ohio St.3d 529, 536, 751 N.E.2d 1032, fn. 1. For the reasons

previously discussed, however, the court of appeals’ findings were not supported by competent,

credible evidence, and it erred in relying on evidence that was irrelevant to the determination.

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Stacy’s reinstatement to his former position as a mechanic and for further

proceedings consistent with this opinion.

Judgment reversed

and cause remanded.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

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Buckley, King & Bluso and James E. Melle, for appellant.

Ennis, Roberts & Fischer, C. Bronston McCord III and George E. Roberts

III, for appellees.

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