State Ex Rel. Tempesta v. City of Warren

[Cite as State ex rel. Tempesta v. Warren, 128 Ohio St.3d 463, 2011-Ohio-1525.]

THE STATE EX REL. TEMPESTA v. CITY OF WARREN.

[Cite as State ex rel. Tempesta v. Warren,

128 Ohio St.3d 463, 2011-Ohio-1525.]

Mandamus — Classified employee — R.C. 124.327 — Right to reinstatement

following layoff — Collective-bargaining agreement — Back pay — Writ

granted in part and denied in part.

(No. 2010-1150 — Submitted February 15, 2011 — Decided April 6, 2011.)

IN MANDAMUS.

__________________

Per Curiam.

{¶ 1} This is an action for a writ of mandamus to compel respondent,

city of Warren, Ohio, to reinstate relator, Frank M. Tempesta, to the city’s

Operations Department in the position of operations superintendent, and to award

him back pay. Because Tempesta has shown that he is entitled to the position, we

grant the writ and order the city to appoint him to the operations superintendent

position. We deny the request for an award of back pay because Tempesta has

not established the amount due with certainty.

Facts

{¶ 2} Tempesta was a classified employee for the city of Warren. His

job classification was “Director of Service Operations,” within the “Director of

Service Operations, Operations Superintendent, and Parks and Streets Supervisor”

classification series. The classified positions in this series are listed from the

highest-ranking classification to the lowest-ranking classification, and Tempesta

was in the highest-ranking classification as the director of service operations.

{¶ 3} In early June 2009, because the city was experiencing financial

difficulties, city officials notified the Warren Municipal Civil Service

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Commission of the need to lay off city employees due to a lack of funds. There

were only three supervisory employees in the city’s Operations Department –

Director of Service Operations Tempesta, Operations Superintendent David

Mazzochi, and Parks and Streets Supervisor Leann O’Brien. Each of these

employees was a full-time, permanent, classified employee of the city in June

2009; of the three, Tempesta had the least amount of continuous service with the

city. By letter dated June 25, 2009, the city’s director of public service and safety

notified the civil service commission that Tempesta would be laid off because of

the lack of funds.

{¶ 4} The city notified Tempesta on July 8, 2009, that he would be laid

off from his employment with Warren, effective July 26, 2009, for lack of funds

and advised him that he had the right to appeal the layoff to the municipal civil

service commission as well as the “right to reinstatement for one (1) year from the

effective date of this layoff.” Consistent with the city’s notice, Tempesta was laid

off effective July 26, 2009. Tempesta appealed the civil service commission’s

verification of retention points for the supervisory employees in the Operations

Department to the Trumbull County Court of Common Pleas, but he did not

institute any other appeals in the common pleas court.

{¶ 5} In November 2008, the city had temporarily transferred O’Brien

from her position as parks and streets supervisor in the city’s Operations

Department to the position of computer programmer in the city’s data-processing

department. In September 2009, the city reassigned O’Brien to the position of

urban design and grants coordinator in the city’s community-development

department. At the same time, the city advised her that if and when funds became

available, she would be reassigned to her position as parks and streets supervisor

in the Operations Department.

{¶ 6} For 2010, the city was a party to a collective-bargaining agreement

with the American Federation of State County and Municipal Employees

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(“AFSCME”) Local 2501 and AFSCME Ohio Council 8, AFL-CIO. Neither

Tempesta nor the position of director of service operations that he held at the time

of his layoff was covered by the agreement. The other positions in his

classification series — operations superintendent and parks and streets supervisor

— were covered by the agreement.

{¶ 7} Article 19 of the collective-bargaining agreement outlines a

grievance procedure concluding in arbitration, and Article 21 addresses

promotions. Article 21 provides that the senior bargaining-unit member will be

promoted when a job opening in the bargaining unit is posted:

{¶ 8} “The City agrees to post any job openings, on all Union bulletin

boards, occurring within the bargaining unit for a period of ten (10) working days

after the City determines there is a vacancy. The qualified senior bargaining unit

member shall be promoted. If no qualified bargaining unit member bids, the

Director of Public Service and Safety may fill the position at his/her discretion.”

{¶ 9} Neither Article 21 nor any other provision in the collective-

bargaining agreement specifically negated the statutory rights of a civil service

employee to reinstatement following layoff.

{¶ 10} Effective July 1, 2010, the position of operations superintendent

became vacant because Mazzochi retired. On June 10, 2010, the city posted a

notice of the upcoming job opening. Around mid-June, Tempesta asked to fill the

operations-superintendent position. But based on its interpretation of Article 21

of the collective-bargaining agreement, the city appointed Pat Calvey to the

position effective July 1, 2010. Calvey has served in that position since the

appointment.

{¶ 11} On July 1, 2010, Tempesta filed this action for a writ of mandamus

to compel Warren to reinstate him to the position of operations superintendent.

Tempesta also requested damages, which he later clarified to mean back pay.

Following an unsuccessful attempt at mediation, the city filed an answer, and we

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granted an alternative writ. State ex rel. Tempesta v. Warren, 126 Ohio St.3d

1614, 2010-Ohio-5101, 935 N.E.2d 853. The parties have submitted evidence

and briefs, and Ohio Council 8, AFSCME, AFL-CIO has submitted an amicus

curiae brief in support of the city.

{¶ 12} This cause is now before this court for our consideration of the

merits.

Legal Analysis

Mandamus

{¶ 13} To be entitled to the writ, Tempesta must establish a clear legal

right to be appointed to the position of operations superintendent in the Warren

Operations Department, a corresponding clear legal duty on the part of the city to

appoint him, and the lack of an adequate remedy in the ordinary course of law.

See State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671,

931 N.E.2d 110, ¶ 7.

Legal Right and Legal Duty

{¶ 14} Under R.C. 124.327(B), an employee who is laid off retains

reinstatement rights for one year following the date of layoff. “During this one-

year period, in any layoff jurisdiction in which an appointing authority has an

employee on a layoff list, the appointing authority shall not hire or promote

anyone into a position within that classification until all laid-off persons on a

layoff list for that classification who are qualified to perform the duties of the

position are reinstated or decline the position when it is offered.” R.C.

124.327(B).

{¶ 15} Within a year after Warren laid off Tempesta as the director of

service operations of its Operations Department, the city had a vacancy for the

position of operations superintendent in the same classification series as

Tempesta’s former position in its Operations Department, but it hired someone

else without first offering the position to Tempesta.

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{¶ 16} The city and the union argue that because the collective-bargaining

agreement justified the city’s promotion of bargaining-unit member Calvey to the

position of operations superintendent, the agreement preempted Tempesta’s right

to the position under the reinstatement provisions under R.C. 124.327.

{¶ 17} “In order to negate statutory rights of public employees, a

collective bargaining agreement must use language with such specificity as to

explicitly demonstrate that the intent of the parties was to preempt statutory

rights.” State ex rel. Ohio Assn. of Pub. School Emps./AFSCME, Local 4, AFL-

CIO v. Batavia Local School Dist. Bd. of Edn. (2000), 89 Ohio St.3d 191, 729

N.E.2d 743, syllabus; 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, ¶ 23. Nothing in

Article 21 of the collective-bargaining agreement, which contains general

provisions concerning promotions, or any other provision of the agreement,

specifically negates the statutory rights of bargaining-unit employees to

reinstatement following layoff, much less the statutory rights of city employees

like Tempesta who were not members of the bargaining unit at the time they

were laid off. Therefore, as precedent requires, the collective-bargaining

agreement did not preempt Tempesta’s right to reinstatement in the Warren

Operations Department under R.C. 124.327.1

{¶ 18} The city next argues that Tempesta’s statutory right to employment

in the operations-superintendent position is inferior to O’Brien’s right under the

same statute because O’Brien had more seniority in the “Director of Service

Operations, Operations Superintendent, and Parks and Streets Supervisor”

classification series than Tempesta.

1. R.C. 124.327(B) provides that “[f]or an exempt employee, as defined in section 124.152 of the

Revised Code, who has reinstatement rights into a bargaining unit classification, the exempt

employee’s recall jurisdiction shall be the counties in which the exempt employee indicates

willingness to accept reinstatement as determined by the applicable collective bargaining

agreement.” Because none of the parties argues that this provision is applicable to his mandamus

claim, we need not address it.

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{¶ 19} The city’s argument lacks merit. Under R.C. 124.327(A), “[l]aid-

off employees shall be placed on layoff lists for each classification in the

classification series equal to or lower than the classification in which the

employee was employed at the time of layoff.” If O’Brien’s reassignment from

her position as parks and streets supervisor to a new position constituted a layoff

from her position as parks and streets supervisor in the Operations Department of

Warren, she would have been entitled to have been placed on the layoff list for

only the parks-and-streets-supervisor classification, because the other two

classifications in the series — director of service operations and operations

superintendent — were higher than her classification. Conversely, because

Tempesta had been laid off from the highest classification in the series — director

of service operations — he was entitled to be placed on the layoff lists for all

three classifications, including operations superintendent. R.C. 124.327(A).

{¶ 20} Therefore, Tempesta has established a clear legal right to be

employed in the position of operations superintendent with Warren and a clear

legal duty on the part of the city to so employ him.

Lack of Adequate Remedy in the Ordinary Course of Law

{¶ 21} “Mandamus will not issue if there is a plain and adequate remedy

in the ordinary course of law.” State ex rel. McClaran v. Ontario, 119 Ohio St.3d

105, 2008-Ohio-3867, 892 N.E.2d 440, ¶ 15; R.C. 2731.05.

{¶ 22} The city claims that Tempesta is not entitled to the requested writ

of mandamus because he has or had an adequate remedy in the ordinary course of

law by way of the grievance and arbitration procedure in the collective-bargaining

agreement. “A grievance and arbitration procedure in a collective bargaining

agreement generally provides an adequate legal remedy, which precludes

extraordinary relief in mandamus, when violations of the agreement are alleged

by a person who is a member of the bargaining unit covered by the agreement.”

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State ex rel. Walker v. Lancaster City School Dist. Bd. of Edn. (1997), 79 Ohio

St.3d 216, 218, 680 N.E.2d 993.

{¶ 23} Tempesta does not have an adequate legal remedy by way of the

grievance and arbitration procedure in the collective-bargaining agreement

because his claim is based on statute rather than the agreement and he was not a

member of the bargaining unit covered by the agreement.

{¶ 24} Moreover, although R.C. 124.34 authorizes an appeal to the

municipal civil service commission from certain adverse employment decisions,

the decisions that can be appealed do not include the wrongful failure to recall a

laid-off employee. See R.C. 124.34(B).

{¶ 25} Therefore, Tempesta has established that he lacks an adequate

remedy in the ordinary course of law.

Back Pay

{¶ 26} Tempesta also requests an award of back pay. “A wrongfully

excluded public employee may obtain back pay and related benefits in a

mandamus action following reinstatement or, in some cases, may obtain

reinstatement and back pay and related benefits in the same mandamus action.”

State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn. (2001), 93 Ohio

St.3d 558, 563, 757 N.E.2d 339. Here, Tempesta requests an award of back pay

in the same mandamus case in which he seeks reinstatement to employment with

the city.

{¶ 27} To be entitled to recover compensation for the period of wrongful

exclusion from employment, however, Tempesta is required to establish the

amount of back pay “with certainty.” Monaghan v. Richley (1972), 32 Ohio St.2d

190, 61 O.O.2d 425, 291 N.E.2d 462, syllabus; State ex rel. Stacy v. Batavia

Local School Dist. Bd. of Edn., 105 Ohio St.3d 476, 2005-Ohio-2974, 829 N.E.2d

298, ¶ 28. The term “with certainty” generally refers to “whether a particular

amount has been precisely determined as to its value in dollars and cents” and at

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times “also refer[s] to the quality of proof, in order for an employee to

demonstrate that he has a clear legal right to the relief for which he prays.” State

ex rel. Hamlin v. Collins (1984), 9 Ohio St.3d 117, 120, 9 OBR 342, 459 N.E.2d

520. Tempesta has introduced no evidence here that would satisfy the requisite

standard of proof.

{¶ 28} Therefore, Tempesta is not entitled to an award of back pay.

Conclusion

{¶ 29} Based on the foregoing, Tempesta has established his right to a

writ of mandamus to compel the city of Warren to appoint him to the position of

operations superintendent in the city’s Operations Department. Therefore, we

grant the writ. We deny the writ insofar as Tempesta seeks an award of back pay

for which he has failed to satisfy his burden of proof.

Judgment accordingly.

O’DONNELL and CUPP, JJ., concur.

PFEIFER and LUNDBERG STRATTON, JJ., concur in granting the writ but

would also award back pay to relator.

O’CONNOR, C.J., and LANZINGER and MCGEE BROWN, JJ., dissent.

__________________

LANZINGER, J., dissenting.

{¶ 30} I respectfully dissent and would deny the writ of mandamus

because relator, Frank M. Tempesta, has not established either a clear legal right

to appointment to the position of operations superintendent in the city of Warren’s

Operations Department or the city’s clear duty to appoint him to that position.

State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931

N.E.2d 110, ¶ 7.

{¶ 31} In failing to focus on the collective bargaining agreement that the

city has entered into with Ohio Council 8, American Federation of State, County

and Municipal Employees, AFL-CIO (“the union”), I believe the majority has

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gone astray. It is well settled that when a collective bargaining agreement

contains language related to the wages, hours, and terms and conditions of

employment that is sufficiently specific to explicitly demonstrate that the intent of

the parties was to preempt statutory rights, the contract language controls over the

language of the conflicting statute. E.g., State ex rel. Ohio Assn. of Pub. School

Emps./AFSCME, Local 4, AFL-CIO v. Batavia Local School Dist. Bd. of Edn.

(2000), 89 Ohio St.3d 191, 729 N.E.2d 743, syllabus.

{¶ 32} R.C. 4117.10(A) provides: “An agreement between a public

employer and an exclusive representative entered into pursuant to this chapter

governs the wages, hours, and terms and conditions of public employment

covered by the agreement. * * * Where no agreement exists or where an

agreement makes no specification about a matter, the public employer and public

employees are subject to all applicable state or local laws or ordinances pertaining

to the wages, hours, and terms and conditions of employment for public

employees.”

{¶ 33} Pursuant to R.C. 4117.08, matters affecting promotions are

appropriate subjects of collective bargaining between a municipal corporation and

an exclusive representative employee organization. See DeVennish v. Columbus

(1991), 57 Ohio St.3d 163, 566 N.E.2d 668, paragraph two of the syllabus.

Article 21 of the collective bargaining agreement between the city and the union

addresses promotions: “The City agrees to post any job openings, on all Union

bulletin boards, occurring within the bargaining unit for a period of ten (10)

working days after the City determines there is a vacancy. The qualified senior

bargaining unit member shall be promoted. If no qualified bargaining unit

member bids, the Director of Public Service and Safety may fill the position at

his/her discretion.” (Emphasis added.)

{¶ 34} The collective bargaining agreement in this case thus has made a

“specification about a matter,” that is, about promotions. Article 21 explicitly

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controlled how vacancies within the bargaining unit, which includes the position

of operations superintendent, were to be filled. If a bargaining unit member bid

for a vacant position, that member was to be promoted. Tempesta was never a

member of the bargaining unit. He had no legal right to be placed into a vacant

position unit for which a qualified bargaining unit member had applied.

Nevertheless, Tempesta asserts that the city was legally obligated to appoint him

because of R.C. 124.327, which requires the reinstatement of classified employees

laid off within the previous year before a promotion or new hire is made in the

relevant classification series.

{¶ 35} The position of operations superintendent became vacant upon

David Mazzochi’s retirement on July 1, 2010. On June 10, the city posted a

notice of the upcoming job opening and eventually appointed bargaining unit

member Pat Calvey to the position, effective July 1, 2010. Tempesta argues that

because on July 1 he was in layoff status with the city, he was entitled to be

reinstated and appointed as operations superintendent pursuant to R.C. 124.327,

because the position of operations superintendent was in the same classification

series as his former position.

{¶ 36} His proposition of law rests on the statement that “[i]n order to

negate statutory rights of public employees, a collective bargaining agreement

must use language with such specificity as to explicitly demonstrate that the intent

of the parties was to preempt statutory rights.” Ohio Assn. of Pub. School Emps.,

89 Ohio St.3d 191, 729 N.E.2d 743, at syllabus. He argues that Article 21 of the

collective bargaining agreement between the city and the union does not

specifically negate the statutory rights of bargaining unit employees to

reinstatement following layoff, much less the statutory rights of nonunion city

employees like him.

{¶ 37} But the case on which he relies is distinguishable. In Ohio Assn. of

Pub. School Emps., this court held that a school board did not have authority

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under a collective bargaining agreement to abolish bus driver positions and then

transfer the obligation to provide transportation to a private company. Id. at 195.

Under those circumstances, the drivers, members of the union, retained their

statutory protections under R.C. 3319.081, the statute that governs contracts for

nonteaching school-district employees. R.C. 124.327 was not at issue. Unlike

Tempesta’s situation, the apparent conflict lay between the contractual and

statutory rights of the members of the collective bargaining unit. Tempesta is not

a member of the bargaining unit and the union itself has not filed any grievance

under the collective bargaining agreement. In fact, here the union has filed a brief

as amicus for the respondent city.

{¶ 38} I would hold that the city, in following its collective bargaining

agreement, appropriately promoted Pat Calvey to the position of operations

superintendent. Without establishing his own legal right to the appointment or a

legal duty to appoint on the part of the city of Warren, relator, Frank Tempesta,

has failed to show that he is entitled to a writ of mandamus.

O’CONNOR, C.J., and MCGEE BROWN, J., concur in the foregoing opinion.

__________________

Guarnieri & Secrest, P.L.L., and Michael D. Rossi, for relator.

Gregory V. Hicks, Warren Law Director, and James R. Ries, Deputy Law

Director, for respondent.

Bethany E. Sanders, Associate General Counsel, urging denial of the writ

for amicus curiae, Ohio Council 8, AFSCME, AFL-CIO.

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