2. The Federal Court's Rulings On State Law Issues Are Dicta the right to resume her classified status and position. The employee's right to exercise failback rights was decided in

IN THE SUPREME COURT OF OHIO

State ex rel. Eydie Glasstetter,

Relator-Appellant

V.

Rehabilitation Services Commission and JohnM. Connelly, in his capacity as AdministratorRehabilitation Services Connnission

Respondents-Appellees.

S. C. Case No. 08-2231

On Appeal as of Right fromthe Court of Appeals,Franklin County, OhioTenth Appellate District

Court of Appeals Case No. 08AP-56

MERITS BRIEF OF RELATOR-APPELLANT

EYDIE GLASSTETTER

James E. Melle (00009493) Richard Cordray,*Counsel of Record Attorney General of OhioBUCKLEY KING LPAOne Columbus, Suite 130010 West Broad StreetColumbus, OH 43215-3419(614) 461-5600(614) 461-5630 [email protected] for Realtor-AppellantEydie Glasstetter

Jack W. Decker (0021285)Principal Assistant Attorney General*Counsel of RecordNicole Moss(0062938)Assistant Attorney GeneralEmployment Law Section30 East Broad Street, 23`d FloorColumbus, OH 43215(614) 466-2980(614) 728-9470 faxelsreviewna ag.state.oh.usCounsel for Respondents-AppelleesOhio Rehabilitation Services Commissionand John Connelly

l>=lIL LL U

I; ^:)q l'ii',?

CL.ERK OF COURTSUPREME COURT OF OHI®

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................................. i

TABLE OF AUTHORITIES ....................................................................................................... ii

1. STATEMENT OF THE CASE ............................................................................................ 1

II. STANDARD OF REVIEW .............................................................................................. 4

III. STATEMENT OF FACTS ............................................................................................... 5

IV. LAW AND ARGUMENT ............................................................................................... 11

A. Appellant's Proposition of Law No. 1 ........................................................................... 11

Where A State Employee Is Selected By An Appointing Authority For A ClassifiedPosition And While Serving In That Position Attains Permanent Status Under R.C.124.271 That Employee Cannot Be Redesignated As Unclassified Absent Consent Of TheEmployee Or Removed As An Unclassi£ed Employee ........................................................ 11

1) Undisputed Facts Proving Appellant's Classified Status ........................................ 1 I

2) Appellant's Classified Status, Tenure And Permanent Employment AreConferred By Law ............................................................................................................... 12

B. Appellant's Proposition of Law No. 2 ........................................................................... 15

Where A Certified Employee In State Service Is Directed By And Obeys The Order Of TheAppointing Authority To Move Herself And Her Position To The Unclassified Service TheEmployee Is Appointed Pursuant To R.C. 124.11(D) And Entitled To Exercise FallbackRights Thereafter . ....................................................................................................................... 15

C. Appellant's Proposition of Law No. 3 ........................................................................... 19

A State Employee Who Is Unlawfully Coerced To Change Her Classified Status AndPosition To Unclassified Remains A Classified Employee ...................................................... 19

D. Appellant's Proposition of Law No. 4 ........................................................................... 24

A Federal Court's Interlocutory Ruling Is Neither A Final Order Nor Entitled To AnyPreclusive Effect .......................................................................................................................... 24

1. No Final Order ............................................................................................................ 24

i

2. The Federal Court's Rulings On State Law Issues Are Dicta ................................ 24

V. CONCLUSION ................................................................................................................... 30

Certificate of Service ................................................................................................................... 31

ii

TABLE OF AUTHORITIES

CasesAlliance Group, Inc. v. Rosenfield (1996), 115 Ohio App.3d 380, 685 N.E. 2d 570 ................... 15Ballard v. Cleveland, 2002-Ohio-7202, 2002 WL 31870134 ........................................................ 4Balson v. Dodds (1980), 62 Ohio St.2d 287, 405 N.E. 2d 293 ....................................................... 4Buchanan v. Dayton Metropolitan Housing Authority, 1991 WL 355156 ................................... 20Buchanan v. Dayton Metropolitan Housing Authority, 1991 WL 355156 (2nd Dist.) ............... 20Carroll v. Dept. ofAdmin. Services (1983), 10 Ohio App.3d 108, 460 N.E. 2d 704 ................... 16Chubb v. Ohio Bur. of Workers' Comp. ( 1998), 81 Ohio St.3d 275, 690 N.E. 2d 1267 ............... 24Construction One, Inc. v. Shore Thing, Inc., 2003 WL 153415 ..................................................... 4Cuyahoga Falls Edn. Assn. v. Cuyahoga Falls City School Dist. Bd. of Edn. (1991),61 Ohio St.3d 193, 574 N.E. 2d 442 ............................................................................................. 30D.A.B. E. Inc. v. Toledo-Lucas County Board of Health (2002),2002-Ohio-4172, 96 Ohio St.3d 250 ............................................................................................ 16Davis v. Taylor & Bogus Foundry, 2003-Ohio-1832 ..................................................................... 8Esselburne v. Ohio Dept ofAgriculture (1985), 29 Ohio App.3d 152, 504 N.E. 2d 434............ 22Freeman v. Ohio Dept. ofHuman Services, 1995 WL 739882 .................................................... 23Glidden Co. v. Lumbermens Mut. Cas. Co., 112 Ohio St.3d 470, 2006-Ohio-6553 .................... 24In Re Braddy, 195 B.R. 365, 370-72 (E.D. Mich. 1996) .............................................................. 25Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48 .. ........................................ 8Kinney v. Ohio State Dept. ofAdm. Services (1984),14 Ohio App.3d 33, 469 N.E. 2d 1007 ......................................................................................... 20Kluth v. Andrus (1952), 157 Ohio St. 279, 105 N.E. 2d 579 ........................................................ 13Leibson v. Ohio Dept. ofMental Retardation & Dev. Disabilities (1992),84 Ohio App.3d 751, 618 N.E. 2d 232 ......................................................................................... 22Mitseffv. Wheeler (1988), 38 Ohio St.3d 112, 526 N.E. 2d 798 ................................................... 4Modic v. Modic (1993), 91 Ohio App.3d 775, 633 N.E. 2d 1151 ............................................... 23Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948 ............................ 4Peace-USA v. Abbott, 1990 WL 75405 (l0th Dist.) ........................................................................ 8Richley v. Youngstown Civil Service Comm. (1984), 9 Ohio St.3d 15, 457 N.E. 2d 829....... 13, 23Romito v. Maxwell (1967), 10 Ohio St. 2d 266, 227 N.E. 2d 223 ................................................ 15State ex rel. Adams v. Wallace (1993), 92 Ohio App.3d 462 ......................................................... 9State ex rel. Allen v. Bowling Green State University (1991),61 Ohio Misc.2d 562, 580 N.E. 2d 855 ........................................................................................ 23State ex rel. Asti v. Ohio Department of Youth Services (2005),107 Ohio St.3d 262, 2005-Ohio-643 ............................................................................................... IState ex rel. Couch v. Trimble Local School Dist. Bd of Edn.,120 Ohio St.3d 75, 2008-Ohio-4910 ............................................................................................. 30State ex rel. Denton v. Bedinghaus, 98 Ohio St.3d 298, 2003-Ohio-861 ..................................... 24State ex rel. Glasstetter v. Connelly, 2008-Ohio-5755 .......................................................... passimState ex rel. Newell v. City ofJackson, 118 Ohio St.3d 138, 2008-Ohio-1965 ............................ 13State ex rel. Ohio Assn. ofPub. School Emp./AFSCME, Local 4, AFL-CIO v.Batavia Local School Dist. Bd ofEdn. (2000), 89 Ohio St.3d 191, 2000-Ohio-130 ................... 30State ex rel. Rose v. James (1991), 57 Ohio St.3d 14, 565 N.E. 2d 547 ...................................... 20State ex rel. Slovensky v. Taylor (1939), 135 Ohio St. 601, 21 N.E. 2d 990 ................................ 12

11

State ex rel. Spencer v. E. Liverpool Planning Commission(1997),80 Ohio St.3d 297, 685 N.E. 2d 1251 ............................................................................................. 8State ex rel. Weiss v. Indus. Comm. (1992), 65 Ohio St.3d 470, 605 N.E. 2d 37 ........................... 9State ex. rel Lesher v. Kainrad (1981), 65 Ohio St. 2d 68, 417 N.E. 2d 1382 ............................. 14State ex. rel Savarese v. Buckeye Loc. Sch. Dist. Board, of Ed. (1996),74 Ohio St.3d 543, 660 N.E. 2d 463 ............................................................................................. 14Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87 ............................................. 5Treciak v. Department of Commerce, 1995 WL 347999 .............................................................. 23Treciak v. Department of Commerce, 1998 WL 345559 .............................................................. 23Treciak v. State of Ohio, 117 F.3d 1421 (6th Cir. 1997) .............................................................. 25Trumbull County Mut. Fire Ins. Co. v. Horner (1848), 17 Ohio 407 ........................................... 23Trumbull County Mut. Fire Ins. Co. v. Horner (1848), 17 Ohio 407, 408 ................................... 23Verberg v. Board ofEd. of Cleveland (1939), 135 Ohio St. 246, 20 N.E. 2d 368 ....................... 16Williams v. State, ex rel. Gribben (1933), 127 Ohio St. 398, 400, 188 N.E. 654 ................... 21, 22Yarosh v. Becane (1980), 63 Ohio St.2d 5, 406 N.E. 2d 1355 ................................... 13, 23, 27, 28

Statutes42 U.S.C. § 1983 ............................................................................................................................. 242 U.S.C. § 2000e ........................................................................................................................... 2R.C. 124.03 (A) ................................................................................................................................ 2R.C. 124.03 (A)(6) ......................................................................................................................... 16R.C. 124.06 ................................................................................................................................... 17R.C. 124.11 ................................................................................................................................... 12R.C. 124.11(A) .............................................................................................................................. 12R.C. 124.11(D) ....................................................................................................................... passimR.C. 124.27(C) .............................................................................................................................. 13R.C. 124.271 ................................................................................................................................. 13R.C. 124.34(A) .......... .... .... ............................................................................................ ................ 19R. C. 3304.14 ................................................................................................................................. 20R.C. 3304.15 ............................................................:.................................................................... 20R.C. 5123.08 ................................................................................:................................................ 22

RulesCiv. R. 56 (A) ............................................................................................................................ 3,15O.A.C. 123:1-17-16 ...................................................................................................................... 19O. A. C. 123:1-19-01 ...................................................................................................................... 13O.A.C. 123:1-19-02 ...................................................................................................................... 13O.A.C. 123:1-47-01(A)(19) .......................................................................................................... 11O.A.C. 123:1-47-01(A)(71) .......................................................................................................... 12O.A.C. 124-1-01(B) ...................................................................................................................... 12O.A.C. 124-1-02(E) ....................... .... .... .... .... .... ...... 3O.A.C. 124-1-02(S) ........................ ..... ..... ..... .... ..... ...... 3O.A.C. 124-1-02(Z) ...................................................................................................................... 19O. A. C. 124-1-04(A) ...................................................................................................................... 14O. A. C. 124-1-04(B) ...................................................................................................................... 14O. A. C. 124-11-07 ......................................................................................................... .................. 1O. A. C. 3 3 04-1-04(A) .................................................................................................................... 20

iii

Appendix

Item DescriptionAppendixPage No.

BriefPage No.

Notice of Appeal of Relator-Appellant 1-2 4Eydie Glasstetter

Judgment Entry 3

Tenth Appellate District Decision 4-10 3, 4, 16

Magistrate's Decision 11-31 Passim

Administrative Law Judge Procedural 32-33 2 4Order '

Stay Order 34 24Federal District Court

Opinion and OrderFederal District Court 35-54 24-30

iv

1. STATEMENT OF THE CASE

Relator-Appellant Eydie Glasstetter was employed by the Ohio Rehabilitation Services

Commission (RSC or Commission) for 8 years. For 8 years, she was a Human Resources

Administrator 3 (HRA3) in the classified service. In her eighth year, she was ordered by her

appointing authority, Respondent-Appellee, John Connelly (Connelly), to change her status to

unclassified and move her position into the unclassified service. After objecting, Appellant

complied with the order. Appellant wrote in her signed acknowledgment letter that "I futther

understand that I may be entitled to fallback rights under Ohio Revised Code section

124.11(D)."l In an earlier discussion between them concerning this subject, Connelly told

Appellant that she had fallback rights. Three months after Connelly ordered Appellant to change

her classified status to unclassified Connelly removed her as an unclassified employee. However,

before Connelly discharged her, Appellant exercised her right to fallback from the unclassified

service to her previous classified position and classified status as provided in R.C. 124.11(D).

Despite having previously affirmed to Appellant and others that she had fallback rights, Connelly

now refused to honor Appellant's statutory fallback rights claiming she had none.

Appellant filed an appeal with the State Personnel Board of Review (SPBR) asserting

that she was a classified employee because she exercised her fallback rights before she was

terminated. RSC moved to dismiss Appellant's appeal claiming she was unclassified, a status

over which the SPBR lacked jurisdiction. Appellant filed a motion to disaffirm her removal

because Connelly did not comply with the statutory requirements for removing a classified

employee. See, R.C. 124.34 and O.A.C. 124-11-07. Connelly then filed a removal order with

SPBR and served it on Appellant. Because the removal order purported to remove Appellant as

' A classified employee who is appointed pursuant to R.C. 124.11(D) to a position in the unclassified service retainsthe right to resume her classified status and position. The employee's right to exercise failback rights was decided inState ex rel. Asti v. Ohio Department of Youth Services (2005), 107 Ohio St.3d 262, 2005-Ohio-6432.

1

an unclassified employee, Appellant moved to disaffirm this second removal because the SPBR

lacks jurisdiction over unclassified removal orders. See R.C. 124.03(A). Appellant also filed suit

in the federal district court alleging violations of her due process rights under 42 U.S.C. § 1983

and her rights under Title VII under the Civil Rights Act of 1964, 42 U.S.C. § 2000e.

The SPBR's Administrative Law Judge (ALJ) in a Procedural Order stayed Appellant's

appeal and any decision on the pending motions, stating that SPBR lacked jurisdiction to review

the exercise of Appellant's fallback rights. The purpose of the stay, it said, was to allow the

parties to "pursue resolution of the fall-back rights question through a mandamus action." (Apx.

33).

Appellant filed a mandamus complaint in the Franklin County Court of Appeals alleging

that once tenure is attained under R.C. 124.34 and permanent employment is achieved under

R.C. 124.271, Connelly is prohibited from changing Appellant's classified status to unclassified

without her consent. Appellant also alleged that pursuant to R.C. 124.11(D) she possessed a clear

legal right to exercise her fallback rights and Appellees had a clear legal duty to honor her

exercise of those rights and reinstate her to her position and status in the classified service. As a

result of Appellees wrongful exclusion of Appellant from employment, she has suffered the loss

of wages and related benefits and lacked an adequate remedy at law. (Supp. Tab 1, p. 11).

Appellees' answer denies that Appellant possessed fallback rights and averred that,

despite her 8 years of holding classified status and working in a classified job, Appellant was

nevertheless an unclassified employee. Appellees averred that Appellant's duties determined her

proper status and her duties were those of an unclassified employee. The answer averred further

that Connelly had the right to (1) unilaterally "redesignate" Appellant as an unclassified

employee and (2) ignore her exercise of fallback rights because the statute did not apply to her.

2

(Supp. Tab 2, p. 32).

The matter was referred to a magistrate who recommended granting Appellees' motion

for summary judgment and denying Appellant's cross motion for summary judgment. State ex

rel. Glasstetter v. Connelly, 2008-Ohio-5755, ¶87 (Apx. p.3 1). The magistrate ruled that:

It is clear from the undisputed evidence before this court that relator was neverappointed from a position in the classified service to a position in the unclassifiedservice. Rather, the HRA 3 position was simply redesignated from classified tounclassified by the appointing authority. Only one position was involved in theredesignation. Given that the appointing authority did not appoint relator from aposition in the classified service to a position in the unclassified service, R.C.124.11(D) has no application here. Relator's circumstances fail to satisfy thestatutory requirements under R.C. 124.11(D). (Id. p. 29-30, ¶81),

The magistrate relied upon two administrative rules which apply only at the SPBR,

O.A.C. 124-1-02(E) and O.A.C. 124-1-02(S), to conclude that Appellant was never appointed to

a position in the unclassified service and, thus, R.C. 124.11(D) did not afford her fallback rights.

(Id. 29-30, ¶78-81). The magistrate cited no statutory or rule authority or case law which

authorized Connelly to "redesignate" a position from classified to unclassified. Further, the

magistrate never ruled on Appellant's alternative argument that Connelly's "redesignation" of

Appellant's position, if not in compliance with R.C. 124.11(D), was not grounded in any

statutory authority, violated Appellant's tenure rights, and thus was a nullity. Connelly's

noncompliance with R.C. 124.11(D), Appellant argued, resulted in Appellant remaining in her

classified position with classified status just as she had for the previous 8 years, and thus entitled

her to the writ.

Appellant filed objections to the Magistrate's Decision. The Court of Appeals

acknowledged the "the breadth of relator's objections" but stated that "the single issue before us

is whether relator is entitled to exercise fall-back rights pursuant to R.C. 124.11(D)." (Apx. p.8,

¶9). Adopting the Magistrate's Decision and reasoning, the Court wrote:

3

As the magistrate explained, relator fails to meet the requirements of R.C.124.11(D) because she was never appointed to a position in the unclassifiedservice. Rather, the position she held was redesignated an unclassified position.Indeed, respondents contend the position, by its duties, was unclassified from themoment relator accepted it in 1998. We, however, need not resolve that issue; it isone properly determined before the State Personnel Board of Review. Instead, wedetermine only that, for the reasons set forth in the magistrate's decision, relatorhas no fall-back rights under R.C. 124.11(D). (Apx. p.8-9, ¶10).

The issues joined by the pleadings, the cross motions for summary judgment and the

objections filed by Appellant were much broader than the narrow self-imposed limitation the

Court of Appeals placed on its review of this case. The Court of Appeals failed to recognize that

if Connelly did not comply with R.C. 124.11(D), he acted without statutory authority when he

"redesignated" Appellant's position as unclassified and thus Appellant remained a classified

employee who was wrongfully excluded from employment, thus entitling her to the writ.

Appellant timely filed her Notice of Appeal with this Court. (Apx. p. 1-2)

H. STANDARD OF REVIEW

A decision granting summary judgment is reviewed de novo. Ohio Govt. Risk Mgt. Plan

v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, ¶5. The lower court's denial of Appellant's

motion for summary judgment is reviewable after an adverse final judgment. Balson v. Dodds

(1980), 62 Ohio St.2d 287, 405 N.E. 2d 293, ¶1 syllabus. When cross motions for summary

judgment are filed, both are reviewed de novo. Construction One, Inc. v. Shore Thing, Inc., 2003

WL 153415, ¶15. No deference is given to the lower court's ruling. Shaver v. Wolske & Blue

(2000), 138 Ohio App.3d 653, 662, 742 N.E. 2d 164. Each movant bears the burden of proving

no genuine issue of material fact exists. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526

N.E. 2d 798. The filing of cross motions does not establish the absence of material issues of fact.

Ballard v. Cleveland, 2002-Ohio-7202, 2002 WL 31870134, ¶17. However, Appellant does not

bear the initial burden of addressing Appellees' affirmative defenses. Todd Dev. Co., Inc. v.

4

Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, syllabus.

The remaining summary judgment standards applicable to both summary judgment

motions were fairly summarized by the magistrate. (Apx. p.28-29, ¶76). Summary judgment is

appropriate when the movant demonstrates that: (1) there is no genuine issue of material fact; (2)

the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come

to but one conclusion, and that conclusion is adverse to the party against whom the motion for

summary judgment is made, said party being entitled to have the evidence construed most

strongly in his favor.

For the following reasons, Appellant was entitled to summary judgment as a matter of

law and the Court of Appeals erred in granting Appellees' motion for summary judgment.

Further, the Court of Appeals and the magistrate erred in failing to consider Appellant's evidence

which was relevant to the issues of: her initial classified status, coercion by Connelly and her

altemative argument that if she did not possess fallback rights under R.C. 124.11(D), then she

remained a classified employee and was wrongfully excluded from employment.

III. STATEMENT OF FACTS

Appellant began her employment with the state of Ohio in another state agency on

January 6, 1992. On May 13, 1998, RSC posted the HRA3 job for bid. The job posting stated

that the HRA3 position was a classified position and that transfers were allowed. Appellant

applied for the job, was selected by the Administrator of RSC, Connelly's predecessor, and on

October 11, 1998, transferred to RSC. (Apx. p.15, ¶35-36; Supp. Tab 1, p. 13, Tab 7, p. 74-75,

78).

In February 2006 Connelly, Katherine Brown, Assistant Administrator of RSC, and the

chair and vice-chair of the Commission discussed the possibility of unclassifying team leaders.

5

Their Meeting Notes (Supp. Tab 3, p. 39-45) reflect their discussion: "We need to petition DAS

and let them know of our intent to unclassify, submit job descriptions. ... There are fall back

rights for people going from classified to unclassified." These Meeting Notes expressly mention

that Appellant has fallback rights. (Id.).

Four years before that meeting, the RSC Commissioners adopted a policy which states in

part: "As vacancies occur in the Executive Staff, these positions will be examined individually to

determine if they should be moved to the unclassified service." (Apx. p.20-21, ¶56; Supp. Tab 1,

p.19). Connelly's affidavit avers that this RSC policy did not prohibit him from redesignating

Appellant's position "from `classified' to ùnclassified' if the duties of the position placed it in

the unclassified service pursuant to O.R.C. §124.11(A)(9)." (Apx. p.21, ¶57). At an earlier time,

Connelly told Appellant that the policy only permitted unclassifying positions when they became

vacant and he told her that he supported this policy. (Supp. Tab 7, p. 69).

David Miller, chairman of the Commission, was Connelly's supervisor and discussed the

policy with Connelly while it was being drafted. Miller's affidavit testimony disagreed with

Connelly's assertion of the policy's intent. (Apx. p.21-22, 30-31, ¶59, ¶84-86; Supp. Tab 6, p.

65).

Miller testified that the intent of the policy was that no classified employee would be

changed to unclassified. His affidavit states: "In all of our discussions on this subject, Connefly

always agreed there was `no reason' to move a classified employee into the unclassified service

because he always said that classified employees would have fallback rights." Miller also

testified that his "reading of the policy ... is consistent with Connelly's discussions with [him]

and the RSC Commissioners. It is also consistent with the intent of the majority of the RSC

Commissioners at the time the policy was written in 2002- that no classified employee would be

6

changed to unclassified." (Apx. p.21-23, ¶59).

Referring directly to Connelly's affidavit testimony in ¶5 (Supp. Tab 4, p. 47) where he

states: "I do not believe Ms. Glasstetter ever enjoyed `fallback' rights under O.R.C. § 124.11(D)

with respect to the position she occupied at RSC," Miller testified (Supp. Tab 6, p. 65) "[t]his

statement is contrary to every statement that Connelly ever made to [him] on the subject of

fallback rights and in our discussions of moving an employee from the classified to the

unclassified service."

Referring directly to Connelly's affidavit testimony in ¶8 (Supp. Tab 4, p. 48-49), that the

policy was not intended to prevent his redesignation of the status of an occupied position, Miller

testified: "that the opinion expressed by Connelly in ¶8 of his affidavit is inconsistent with the

discussions between Connelly and the RSC Commissioners concerning the classified employees

at RSC (Supp. Tab 6, p. 65). A majority of the RSC Commissioners intended that the classified

employees remain classified and only when the particular position became vacant that it would

be evaluated for a possible change to the unclassified service." "It was not the intent of the RSC

Commissioners at the time the RSC policy was discussed that the Executive Director2 be

permitted to change a classified employee into an unclassified employee." (Apx. p.21-23, ¶59).

Additionally, during the time Connelly was in the process of taking Appellant's classified

status away, RSC General Counsel in an email concerning another employee makes reference to

this policy and confirms that the RSC policy provides that only when classified positions in RSC

become vacant may they be made unclassified. (Supp. Tab 7, p. 69; Tab 1, p. 20).

The magistrate recognized the disputed testimony concerning the RSC policy but ruled it

irrelevant because of his conclusion that R.C. 124.11(D) did not provide Appellant with fallback

rights. (Apx. p.30-31, ¶85-86).

z Connelly refers to himself as the Executive Director. R.C. 3304.14 refers to him as the Administrator.

7

On April 3, 2006, Connelly told Appellant that he wanted to "unclassify" her job.

Connelly offered Appellant a choice. She could either remain classified and he would hire

another employee with the same classification and duties as Appellant and that this person

"would be over" her. Or, Appellant could agree to become unclassified and in that event

Connelly would not hire the individual. Appellant objected, stating that the requested change was

contrary to established RSC policy, practice and civil service law and a waste of the taxpayers'

money. (Supp. Tab 1, p. 4, ¶29).3

Appellant, acting under coercion and duress, stated that she would "go unclassified

because it was not a risk." (Apx. p.13, ¶23). Connelly, who was familiar with fallback rights,

responded "that's right because you have fallback rights." (Id. p. 15-16, ¶38-39). (Supp. Tab 7, p.

70, 75). Connelly does not dispute this testimony. His affidavit says only that he doesn't recall it.

(Supp. Tab 4, p. 47). That is not a denial of Appellant's testimony. Moreover, the "Bi-weekly

Meeting Notes of February 24 and 27, 2006" (Supp. Tab 4, p. 47-48; Tab 3 p. 40-45) clearly

show that two months earlier Connelly and the RSC leadership recognized Appellant's fallback

rights on the record of RSC saying: "There are fall back rights for people going from classified

to unclassified." These Meeting Notes expressly mention Appellant by name. Thus, Appellant's

testimony is undisputed.

Inlate April 2006, Appellant told Brown that she would like something from Connelly

that he directed her to "go unclassified." Appellant also told Brown that she felt she had no

choice in the matter and that Connelly could not have two HRA3s for the same job. (Apx. p.16,

3 Sworn pleadings constitute evidence for purposes of Civ. R. 56. Jackson v. Alert Fire & Safety Equip., Inc. (1991),58 Ohio St.3d 48, 51; State ex rel. Spencer v. E. Liverpool Planning Commission(1997), 80 Ohio St.3d 297,298,685 N.E. 2d 1251; Davis v. Taylor & Bogus Foundry, 2003-Ohio-1832, ¶21; Peace-USA v. Abbott, 1990 WL 75405(10t' Dist.).

8

¶40; Supp. Tab 7, p.71). On May 16, 2006, Connelly spoke to Appellant and said he was

informed she would not act unless he put it in writing. Appellant answered "yes" and explained

that the options she was given by Connelly and Brown were not appropriate as he could not have

two HRA3s doing the same job under civil service law. She also told Connelly that he left her

with no option. (Apx. p. 16, ¶41; Supp. Tab 7, p.71). The next day, one of Connelly's assistants

delivered to Appellant an order from Connelly acknowledging their previous conversation and

ordering Appellant to prepare and process the paperwork:

including your statement of your willingness to move to the unclassified service,moving the position that you currently occupy as the Team Leader of HumanResources to the unclassified service. Please have the necessary paperworkprepared and presented to me for my signature by close of business onWednesday, May 24th, with an effective date for the action of Sunday, May28th." (Apx. p. 16, ¶42; Supp. Tab 1, p.21).

On May 22, 2006, pursuant to Connelly's order and in reliance on his representation that

she had fallback rights, Appellant delivered to him a signed acknowledgement stating that:

I hereby accept the redesignation of my position of [HRA3]. I understand that theposition, effective 5-29-06, has been designated as unclassified by [RSC]. Iacknowledge that the position is in the unclassified civil service of the State ofOhio pursuant to Ohio Revised Code section 124.11(A)(9). I further understandthat I may be entitled to `fall-back' rights under Ohio Revised Code section124.11(D). (Apx. p.16-17; Supp. Tab 1, p. 22):

On May 28, 2006, after possessing tenure as a classified employee at RSC for nearly 8

years, Appellant's job security as a classified employee was purportedly changed to an

untenured, at will unclassified employee. (Supp. Tab 1, p. 15-17; Tab 7, p. 68) 4 During this

"process" to unclassify Appellant, Appellees told her that these actions were not taken because

of any job performance issues. (Supp. Tab 7, p. 69). Additionally, nothing in Ohio law required

Connelly to make Appellant an unclassified employee. (Supp. Tab 7, p. 73).

"This action was not appealable to the SPBR. State ex ret. Weiss v. Indus. Comm. (1992), 65 Ohio St.3d 470, 475,605 N.E. 2d 37; State ex rel. Adams v. Wallace (1993), 92 Ohio App.3d 462, 466.

9

Although unknown to Appellant at the time, a mere nine days after she was unclassified,

Connelly, on June 6, 2006, made arrangements to investigate her. (Supp. Tab 7, p. 71). On June

19, 2006-only three weeks after Appellant was "redesignated" into the unclassified service,

Brown told Appellant that she was the target of a disciplinary investigation. (Id.). Two days later,

in a letter dated June 21, 2006, Appellant's attorney informed Connelly that he had no lawful

right to force Appellant to abandon her classified status and that Appellant was exercising her

unfettered right to fallback and be restored to her classified status under R.C. 124.11(D) and

State ex rel. Asti v. Ohio Department of Youth Services, supra. (Apx. p.17, ¶45; Supp. Tab 7, p.

75).

After previously (1) acknowledging Appellant's fallback rights (2) acknowledging to the

RSC leadership and recording in the Meeting Notes that Appellant possessed fallback rights (3)

admitting to members of the Commission that Appellant had fallback rights when they drafted

the policy concerning vacant positions (4) recaiving Appellant's letter stating she had fallback

rights and (5) not objecting to Appellant's expression of a reservation of fallback rights in her

memorandum, Connelly denied that Appellant had any fallback rights and denied her "request"5

to be restored to her classified status. (Apx. p.17, ¶46; Supp. Tab 1, p. 24). Also in that June 30`h

letter, Connelly informed Appellant that she was required to participate in the disciplinary

investigation. (Id.).

By letter dated August 15, 2006, Connelly informed Appellant that based on the

information and findings in the investigative report (conducted and prepared by Connelly's hand-

picked investigator), he was considering terminating her employment. In a second letter of the

same date, Connelly informed Appellant that she was placed on administrative leave effective

5 Connelly's characterization of Appellant's exercise of fallback rights as a"request" is misleading. Fallback rightsare unqualified and an employee needs no approval from her appointing authority. See Asti, supra, 265-66.

10

immediately. (Apx. p.18, ¶49). Appellant's attorney wrote to Connelly denying that she had done

anything wrong or that Respondents had just cause for her removal. (Id. ¶50). In a letter dated

August 18, 2006, Connelly notified Appellant of his decision to terminate her, as an unclassified

employee effective August 21, 2006. (Apx. p.19, ¶51).

IV. LAW AND ARGUMENT

A. Appellant's Proposition of Law No. 1

Where A State Employee Is Selected By An Appointing Authority For AClassified Position And While Serving In That Position Attains PermanentStatus Under RC. 124.271 That Employee Cannot Be Redesignated AsUnclassified Absent Consent Of The Employee Or Removed As AnUnclassified Employee.

1) Undisputed Facts Proving Appellant's Classified Status

Although Appellees argued in the Court of Appeals that Appellant was never a classified

employee, the evidence is undisputed and overwhelmingly to the contrary. So is the law. The

undisputed facts are that the HRA3 job was posted for bid by the appointing authority as a

classified job. Appellant bid on, was interviewed and selected by the appointing authority for the

classified HRA3 job. She served a probationary period during which no challenge to her

classified status was ever made by Connelly or his predecessor. She attained permanent6 status

under R.C. 124.271 which is only available to classified employees. The records of the Director

of Administrative Services (DAS) recognize and confirm Appellant's status as a classified and

certified employee. (Supp. Tab 7, p. 68; Tab 1, p. 14-16). Thus, the undisputed facts establish

that when Appellant transferred to RSC, the appointing authority intended to have a classified

position occupied by a classified employee. Appellant's evidence fully corroborates the propriety

of her classified status, classified position, attainment of tenure and her permanent appointment.

6 R.C. 124.271 says the employee becomes a permanent employee. Former O.A.C. 123:1-47-01(A)(19) explains thatunder R.C. 124.271 a permanent employee is a certified employee. (Supp. Tab 8, p.84).

11

Further, from the time Corinelly became the appointing authority for RSC in 2001 until

April 3, 2006, Connelly never questioned Appellant's classified and permanent status. (Supp.

Tab 7, p. 68). Notably, if she were truly unclassified as Connelly now argues, then it was

unnecessary to force her into the unclassified service. He could have simply terminated her as an

unclassified, at will employee. His actions show that he considered her to be a classified

employee and that is why he coerced Appellant to unclassify herself and her position.

2) Appellant's Classified Status Tenure And Permanent Employment AreConferred By Law

The law also proves that Appellant was a classified employee during her entire 8 years with

RSC. The state civil service is divided by R.C. 124.11 into two types, the classified and

unclassified service. R.C. 124.11(A) defines the unclassified service with this language: "The

unclassified service shall comprise the following positions, which shall not be included in the

classified service...." R.C. 124.11(B) defines the classified service with this language: "[t]he

classified service shall comprise all persons ... not specifically included in the unclassified

service."

Therefore, when a job is not expressly listed in R.C. 124.11(A) as in the unclassified

service, then that job is in the classified service by operation of law. See also, O.A.C. 124-1-

01(B). As Appellant's HRA3 job is not expressly listed in R.C. 124.11(A), where 32 different

types of unclassified jobs are listed, it is in the classified service. Further, as Appellant was not

placed in the unclassified service at the time of initial transfer to RSC, she, by operation of R.C.

124.11(B), is a"person" in the classified service.

Appellant's status after transfer to RSC was that of a classified, provisional employee.7 Her

' O.A.C. 123:1-47-01(A)(71) as it existed at that time, provided that a provisional employee was in the classifiedcivil service. (Supp. Tab 7, p.77). See also, State ex rel. Slovensky v. Taylor (1939), 135 Ohio St. 601, 21 N.E. 2d

990.

12

probationary period is established by R.C. 124.27(C), O.A.C. 123:1-19-01 and O.A.C. 123:1-19-

02. Probationary periods are only served by classified employees. (Id.). Appellant completed her

probationary period no later than 1 year after her transfer. As a classified employee who

completed probation, tenure was conferred on Appellant by R.C. 124.34.8

By operation of R.C. 124.271, after two years in the job without the Department of

Administrative Services (DAS) giving a civil service exam, Appellant became "a permanent

appointee in the classified service at the conclusion of that period." Richley v. Youngstown Civil

Service Comm. (1984), 9 Ohio St.3d 15, 457 N.E. 2d 829, ¶1 & 2 syllabus; (Supp. Tab 7, p. 79).

Only tenured employees can become permanent employees. Only classified employees can

become tenured.

There is more law proving that Appellant was a classified employee during her entire 8

years with RSC. Once an employee becomes a permanent employee she cannot be removed

except in compliance with R.C. 124,34, which did not happen here. See, Yarosh v. Becane

(1980), 63 Ohio St.2d 5, 14, 406 N.E. 2d 1355, ¶5 syllabus; Kluth v. Andrus (1952), 157 Ohio St.

279, 105 N.E. 2d 579 ¶1 syllabus; State ex rel. Newell v. City of.7ackson, 118 Ohio St.3d 138,

2008-Ohio-1965, ¶9-15.

Additionally, Connelly cannot, without her consent, redesignate Appellant's classified

status to unclassified after she becomes a permanent employee. Although there was no

impropriety or mistake in making the job a classified job or transferring Appellant into the

classified job, assuming arguendo there was, Connelly is nevertheless prohibited by civil service

rules from claiming such mistake or impropriety. I-Ie cannot divest Appellant of her tenure rights.

$°The tenure of every officer or employee in the classified service of the state ... holding a position under thischapter, shall be during good behavior and efficient service."

13

See, O.A.C. 124-1-04(A)9 and O.A.C. 124-1-04(B).10 Although not citing these two rules, this

court recently reaffirmed this point as a matter of general civil service law. In Newell, supra, ¶9-

15, citing extensive precedent, this court held that an appointee cannot be divested of his

classified position after the expiration of the probationary period except in compliance with R.C.

124.34. Appellant was well-beyond the probationary period when Connelly coerced her into

relinquishing her classified status and position. He was barred by the two rules and the general

civil service law expressed in Newell from claiming that Appellant was improperly unclassified

due to mistake or impropriety.

In the answer Appellees filed in the federal court case, Appellees admitted that classified

employees have job protections but deny they applied to Appellant. (Supp. Tab 10, p.86).

Connelly has not proved by what statutory authority he was authorized to "redesignate"

Appellant's position as unclassified. Nor has the Court of Appeals identified any such authority.

Connelly cannot point to a single statute in O.R.C. Chapter 124 which allows him or any

appointing authority to "redesignate" an occupied classified position with a classified incumbent

into the unclassified service and declare the individual an unclassified employee. Nor can he cite

a single statute which uses the term "redesignate" to support any of his actions.

If this court finds that Connelly lacked authority to redesignate Appellant's position into

the unclassified service, his redesignation was a nullity. An action which is a nullity is void and

of no consequence. State ex. rel Savarese v. Buckeye Loc. Sch. Dist. Board. of Ed. (1996), 74

Ohio St.3d 543, 545-46, 660 N.E. 2d 463. Something that is a nullity is as if it had never

occurred. State ex. rel Lesher v. Kainrad (1981), 65 Ohio St. 2d 68, 71, 417 N.E. 2d 1382. The

'"An appointing authority is estopped to raise the illegal appointment of an employee to defeat the tenure rightswhich would have been due that employee had he been lawfully appointed."10 "After two years of service in a position in the classified service, an employee may become automatically certifiedunder the provisions of section 124.271 of the Revised Code, notwithstanding the impropriety of his appointment."

14

effect of a nullity is that the parties are placed in the position as if there had been no action taken.

Romito v, Maxwell (1967), 10 Ohio St. 2d 266, 227 N.E. 2d 223. See also, Alliance Group, Inc.

v. Rosenfield (1996), 115 Ohio App.3d 380, 388, 685 N.E. 2d 570 stating that what is null and

void "cannot be corrected."

Therefore, once Appellant passed her probationary period, attained tenure and attained

"permanent" status in a job posted as classified and where Appellant was hired as a classified

employee, Connelly lacked any authority under civil service law to "redesignate" her occupied

classified position into the unclassified service without Appellant's voluntary consent.

B. Appellant's Proposition of Law No. 2

Where A Certified Employee In State Service Is Directed By And Obeys TheOrder Of The Appointing Authority To Move Herself And Her Position ToThe Unclassilied Service The Employee Is Appointed Pursuant To R.C.124.11(D) And Entitled To Exercise Fallback Rights Thereafter.

R.C. 124.11(D) is the fallback rights statute in effect at the time. (Apx. p.23-24, ¶61;

Supp. Tab 7, p. 81-82). It provided:

An appointing authority ... may appoint a person who holds a certified position inthe classified service within the appointing authority's agency to a position in theunclassified service within that agency. A person appointed pursuant to thisdivision to a position in the unclassified service shall retain the right to resume theposition and status held by the person in the classified service immediately priorto the person's appointment to the position in the unclassified service....

It is undisputed that Appellant was a certified employee and thus eligible for an unclassified

appointment under R.C. 124.11(D). (Supp. Tab 7, p. 68).

Without discussing how the facts of this case did or did not bring Appellant within the

meaning of R.C. 124.11(D), the magistrate relied upon two administrative rules from the SPBR,

O.A.C. 124-1-02(E) and O.A.C. 124-1-02(S) to conclude that Appellant was never appointed to

a position in the unclassified service and, thus, the statute did not apply to her. (Apx. p.29, ¶77-

15

81). The magistrate never explained how the two rules added any support for his ruling and they

do not. The Court of Appeals did not rely upon the two administrative rules but nevertheless

agreed, without explanation, that Appellant "was never appointed to a position in the unclassified

service." (Apx. p.8-9, ¶10).

The rules cited by the magistrate do not apply outside the SPBR. Its rules are limited to

procedural matters and as aids to invoke its jurisdiction. (See, R.C. 124.03(A)(6)). Moreover,

SPBR disclaimed all jurisdiction over the fallback issues in this case. Thus, the two cited rules

which were the sole basis for the magistrate's ruling are not controlling here. Additionally, there

was no showing by Appellees that these rules were meant as an official interpretation of the word

"appoint" in R.C. 124.11(D). Nor were they cited by Connelly when he refused to honor

Appellant's exercise of fallback rights. (Supp. Tab 4, p. 46-51).

Secondly, whatever the magistrate meant by the phrase a "simple redesignation" of

Appellant's position (Apx. p.29-30, ¶81) in explaining what happened to Appellant,

"redesignation" is not a recognized civil service term. It is not an action available to an

appointing authority under civil service law. It exists nowhere in O.R.C. Chapter 124 or in

Chapter 124 of the Administrative Code. This "redesignation" is a nullity.

An appointing authority may not "prescribe grounds for the removal of employees who

are within the classified service, other than or in addition to those enumerated by statute, or

exempt itself the procedural requirements of' R.C. 124.34. Verberg v. Board of Ed. of Cleveland

(1939), 135 Ohio St. 246, 20 N.E. 2d 368, ¶2 syllabus. D.A.B.E. Inc. v. Toledo-Lucas County

Board ofHealth (2002), 2002-Ohio-4172, 96 Ohio St.3d 250 ¶38-40; Carroll v. Dept. ofAdmin.

Services (1983), 10 Ohio App.3d 108, 460 N.E. 2d 704. Thus, Connelly cannot create new rules

for unclassifying classified employees and removing them from their positions. See also, R.C.

16

124.06.

Secondly, the magistrate noted that only one position was involved and seems to have

implicitly ruled that two positions are needed before the fallback rights are available to the

Appellant. (Apx. p. 29-30, ¶81). The Court of Appeals opinion lacks any independent reasoning

on this issue. Appellant contends that R.C. 124.11(D) does not require that the employee must

physically move from one position to another to be appointed under R.C. 124.11(D).

Connelly and Appellant discussed using the fallback rights statute to move Appellant

into the unclassified service. Connelly affirmed to Appellant and the RSC Commissioners that

Appellant had fallback rights under that statute. Appellant memorialized the parties'

understanding that fallback rights applied by clearly expressing her understanding in her

acknowledgment memorandum and she promptly exercised her fallback rights before Connelly

terminated her. Moreover, the official record of Appellant's employment history shows that she

was appointed on May 28, 2006 to an unclassified position. (Supp. Tab 1, p. 17).

Additionally, it is undisputed that Connelly told Appellant in his order to "include[e] your

statement of your willingness to move to the unclassified service, moving the position that you

currently occLipy as the Team Leader of Human Resources to the unclassified service." (Apx.

p.16, ¶42; Supp. Tab 1, p. 21). By this language, Appellant's position was purportedly "moved"

into the unclassified service. Connelly's words also required a change in Appellant's status. He

wanted a "statement of your willin¢ness to move to the unclassified service." (Id.). Ignoring for

the moment the coercion, there is no prohibition in R.C. 124.11(D) against using the same

position and changing it, as happened in Asti and which occurred here. The facts of this case

demonstrate that Appellant was appointed as that term is used in R.C. 124.11(D).

The magistrate quoted from the Asti case but never explained how the quoted material

17

applied or controlled this case. One portion of Asti which was not mentioned by the magistrate is

that Mr. Asti did not move from one position to another at the time of his initial appointment to

the unclassified service. Asti received a new title but remained exactly where he was at the time

he was appointed unclassified pursuant to R.C. 124.11(D). The appointing authority wrote:

"Èven with this change you will remain in your current classification of Fiscal Officer 4 under

the E-1 rate schedule...." Asti, supra, at ¶3-4.

This case closely parallels Asti in other ways. In 1999, Mr. Asti accepted an appointment

to the unclassified civil service in reliance on the appointing authority's express promise that he

had fallback rights pursuant to section 124.11(D). Three years later, the appointing authority

gave him an option-Asti could either be demoted to another unclassified position or be

removed from employment. When Asti asked whether he had fallback rights, the appointing

authority told him he did not. Asti accepted the demotion with the understanding that he would

research his fallback rights. This court ruled that under R.C. 124.11(D) Asti had an unqualified

right to return to his classified status and position.

In this case, Appellant, like Asti, accepted the appointment to the unclassified service in

reliance on Connelly's unequivocal affirmation that she had fall back rights. On June 21, 2006,

when Appellant asserted her unqualified right to fall back to her previous classified status,

Connelly, like Asti's appointing authority, denied her "request" to exercise this right. Such a

denial was ineffectual as Appellant's right to resume her classified status was unconditional,

unrestricted, and did not require Connelly's approval. Asti, at ¶25-26. Therefore, before

Connelly terminated her, Appellant properly exercised her fallback rights and was again a

classified employee as a matter of law.

Further, as this court said in Asti at ¶31: "R.C. 124.11(D) is a remedial provision that

18

protects state employees when they move from classified positions" and "remedial laws shall be

liberally construed in order to promote their object." Applying a liberal construction of the

statute to the facts of this case, Appellant satisfied the requirements of the statute. She was

appointed to a position in the unclassified service and she properly exercised her rights to

fallback to the classified status and position she previously occupied.

C. Appellant's Proposition of Law No. 3

A State Employee Who Is Unlawfully Coerced To Chan¢e Her ClassifiedStatus And Position To Unclassified Remains A Classified Emnlovee

Connelly's statement that he would appoint another HRA3 over Appellant was contrary

to at least four civil service laws. He could only do this by violating O.A.C. 123:1-17-16.tt

(Supp. Tab 7, p. 73, 79). This civil service rule prohibits an appointing authority from appointing

someone to do the same job which is already being done by an employee on the state's payroll.

Connelly was aware of O.A.C. 123:1-17-16 because Appellant discussed that rule with him and

she had previously provided him with a copy. (Supp. Tab 7, p. 74).

Secondly, it is contrary to R.C. 124.34 and O.A.C. 124-1-02(Z) for an appointing

authority without just cause to diminish a classified employee's job to such an extent that the

employee is reduced in position. (Supp. Tab 7, p. 73, 79). Threatening to place another HRA3

over Appellant and to do her job is clearly a reduction in position. Protection from an unlawful

"reduction in position" is a part of Appellant's tenure conferred upon her by R.C. 124.34(A) and

O.A.C. 124-1-02(Z).

Further, to be lawful, the threatened reduction in position could only be justified if there

" No person shall be appointed or employed under any title not appropriate to the duties to be performed, and noperson shall be assigned to perform duties other than those properly belonging to the position to which he has beenlegally appointed .... The assignment of duties is the responsibility of the appointing authority. It is also hisresponsibility to see that accurate descriptions of the duties performed are reported to the Director so that properclassification of the positions may be maintained. No employee shall be appointed or assigned to any classificationtitle or level which is either higher or lower than that classification to which the position is assigned....

19

were just cause and Connelly filed and served a Section 124.34 order upon Appellant and SPBR

so she could appeal the matter there. Connelly did not have just cause because Assistant

Administrator Brown told Appellant these actions were not because of performance issues.

(Supp. Tab 7, p. 69). Additionally, Brown told Appellant that she was being unclassified to

achieve consistency. This was false as another employee similarly situated to Appellant was not

asked to "go unclassified." (Supp. Tab 7, p. 69-70).

Third, there is an express statutory prohibition preventing Connelly from taking

personnel actions contrary to civil service law. (See, R.C. 124.06). Fourth, in the answer

Appellees filed in federal court, they admitted that they could not coerce Appellant to relinquish

her classified status, but denied doing so. (Supp. Tab 9, p. 88, ¶14).

Fifth, Connelly violated RSC policy which did not permit him to change Appellant's

classified status to unclassified while she occupied the HRA3 position. The policy is consistent

with all civil service laws and is fully consistent with the statutory rights of both Connelly and

Appellant. The RSC Commissioners and Connelly are authorized to promulgate such work

policies12 and they are binding. Buchanan v. Dayton Metropolitan Housing Authority, 1991 WL

355156, at *3 (2nd Dist.) (citing State ex rel. Rose v. James (1991), 57 Ohio St.3d 14, 565 N.E.

2d 547.

The undisputed facts of this case prove that Connelly coerced Appellant into moving her

position and herself into the unclassified service. Kinney v. Ohio State Dept. of Adm. Services

(1984), 14 Ohio App.3d 33, 36, 469 N.E. 2d 1007, Moyer, J., concurring, says:

[A] resignation is involuntary and therefore ineffective when it is the product ofthe appointing authority's wrongful coercion. Thus, where an employer inducesthe resignation as the only alternative to a removal based upon unfounded chargesof misconduct, the resignation should be regarded as ineffective to deny theemployee his appeal. Under those circumstances, there has not been a resignation

" R.C. 3304.15, R.C. 3304.14 and O.A.C. 3304-1-04(A).

20

but, rather, a removal, the merits of which the employee should be permitted tocontest. This differs from a situation where an employee is permitted to resign asan alternative to being removed on charges which are meritorious; in such anevent, as there is no coercion, the resignation is voluntary.

Although the Kinney case involves a resignation, the legal principle is directly applicable

here. Appellant has demonstrated the unfounded and unlawful nature of the threatened actions

which Connelly used to coerce her into the unclassified service. The purported "redesignation"

of her position as unclassified never legally occurred because it was coerced. Appellant thus

remained in the classified civil service. As the court said in Kinney at pages 35-36, the facts

reveal a sorry pattern of heavy-handed, churlish conduct on the part of the appointing authority

in inducing Kinney to submit his resignation. That employer engaged in misstatements and

pressure on the employee. "It is precisely this kind of reprehensible conduct, devoid of subtlety

or decency, which our civil service laws are designed to prevent...." The same is true here.

Additionally, Connelly told Appellant that she had fallback rights. He now denies that

she does. After she placed herself into the unclassified service upon his orders and in reliance

upon their discussion, this is precisely the situation in which Williams v. State, ex rel. Gribben

(1933), 127 Ohio St. 398, 400, 188 N.E. 654 holds that under such circumstances the employee

is entitled to the writ of mandamus:

If, then, the relators did not voluntarily relinquish their respective positions, buton the contrary were either wrongfully persuaded to tender their resignations, orwere induced to do so upon certain terms and conditions relative to retention orsuccession specified by the director, or his authorized representative, by whoseacts he is bound, who then failed to comply with those terms and conditions, andattempted to make such resignations effective contrary to the representation uponwhich they were obtained, as found by the court of common pleas and the Courtof Appeals, it follows that relators were wrongfully removed from their respectivepositions and are entitled to reinstatement; which right may be enforced bymandamus. Thus, she is entitled to a writ of mandamus reinstating her to herposition with full back pay and related benefits.

21

There is yet another long-standing precedent which bears on Connelly's coercive

subterfuge. Leibson v. Ohio Dept. of Mental Retardation & Dev. Disabilities (1992), 84 Ohio

App.3d 751, 758, 618 N.E. 2d 232 holds that the statute13 granting fallback rights at issue in that

case imposed a mandatory duty upon the appointing authority. The court ruled that the

employee's fallback rights were "clearly established legal rights" which the appointing authority

failed to investigate and knew or should have known of those rights. Leibson at p. 757 criticizes

precisely what Connelly did to Appellant.

The notion that a person can be appointed from the classified service to theunclassified service and then dismissed summarily suggests a circumvention ofthe rights of classified employees. Under the ODMRDD's theory, any time itdesires to terminate a classified employee, it need only promote the employee toan unclassified position and then dismiss the employee.

See also, Esselburne v. Ohio Dept ofAgriculture (1985), 29 Ohio App.3d 152, 159, 504

N.E. 2d 434 holding that "Such right of the appointing authority to employ unclassified assistants

does not, however, include the power to change a classified position occupied by an incumbent

classified employee to an unclassified position without the consent of the employee." Esselburne

at 158 called the following a correct statement of the law: "[A] person holding an office or

position in the classified service may not be transferred to an office or position in the unclassified

service against his will and without the approval of the director of administrative services or the

civil service commission or other officer having jurisdiction thereof."

The ruling in Esselburne is very much like the policy adopted by the RSC

Commissioners which precluded Connelly from changing Relator to an unclassified employee

while the HRA3 position was occupied. (Apx. p.15, 30, ¶37, 84; Supp. Tab 1, p. 19, Tab 4, p.

48). Esselburne and the RSC policy are so close on the issues raised here that Esselburne could

13 Leibson involved fallback rights under a different statute, R.C. 5123.08. It, however, contains precisely the samefallback rights in precisely the same language as R.C. 124.11(D).

22

be the underlying basis for the policy.

Esselburne was cited with approval and applied by the Fifth Appellate District Court of

Appeals in Treciak v. Department of Commerce, 1995 WL 347999, *5, motion to certify denied,

73 Ohio St3d 1453 (1995). In fact, the Fifth District twice applied the above ruling. See also,

Treciak v. Department of Commerce, 1998 WL 345559. Treciak, cited State ex rel. Allen v.

Bowling Green State University (1991), 61 Ohio Misc.2d 562, 580 N.E. 2d 855 which held that

attempts to unclassify classified employees have not been tolerated by the courts, and rightly so.

The Allen case applied the Esselburne rule and barred the employer's attempt to convert an

occupied classified position to one outside the classified civil service. Additionally, although the

court found Esselburne distinguishable in the case of Freeman v. Ohio Dept of Human Services,

1995 WL 739882,* 10 it said that had Freeman been classified when hired and then exempted,

Esselburne may be persuasive. Thus, in addition to Kinney and Gribben, Esselburne, Leibson,

Freeman, Allen and Treciak, supra, are all precedents which preclude Connelly from coercing

Appellant as he did.

As a concluding point, if Connelly chose to circumvent the technical requirements of

R.C. 124.11(D), he cannot profit from his own wrongdoing. Yarosh, at 13, Richley at 17, supra.

"The most elementary conceptions of justice and public policy require that the wrongdoer shall

bear the risk of the uncertainty which his own wrong has created." Modic v. Modic (1993), 91

Ohio App.3d 775, 784, 633 N.E. 2d 1151. It is also well established that the court looks with

disfavor on parties who attempt to profit by their own wrong. Trumbull County Mut. Fire Ins.

Co. v. Horner (1848), 17 Ohio 407, 408.

Although the cases are not factually on point, the principle is. If technical noncompliance

with R.C. 124.11(D) exists here, a point not conceded, it is a situation of Connelly's own

23

making. Thus, he has waived any such technical noncompliance to the exercise of Appellant's

fallback rights as Appellant changed her position based upon his affirmation that she had

fallback rights. Chubb v. Ohio Bur. of Workers' Comp. (1998), 81 Ohio St.3d 275, 279, 690 N.E.

2d 1267.

Thus, Appellant had fallback rights under R.C. 124.11(D). If the court determines

otherwise, then Appellant remained a classified employee because she did not voluntarily

consent to the redesignation of her position into the unclassified service. In either case, she was

wrongfully excluded from employment and entitled to the writ.

D. Appellant's Proposition of Law No. 4

A Federal Court's Interlocutory Ruling Is Neither A Final Order Nor

Entitled To Any Preclusive Effect.

1. No Final Order

Because the federal court granted a motion for judgment on the pleadings on only part of

that case and other issues remain for trial, its order is presently interlocutory and thus not

preclusive of anything. State ex rel. Denton v. Bedinghaus, 98 Ohio St.3d 298, 2003-Ohio-861,

¶13-17. To be preclusive, there must be a final judgment on the merits, which is not the case

here. Further, the federal court stayed its proceedings pending the outcome of this appeal to

resolve important state law issues (Apx. p. 34). Therefore, at this time, its decision is at best an

unreported case to be cited and argued. Nothing said by the district court, however, is controlling

in this litigation. Glidden Co. v. Lumbermens Mut. Cas. Co., 112 Ohio St.3d 470, 2006-Ohio-

6553, ¶2 syllabus.

2. The Federal Court's Rulings On State Law Issues Are Dicta

The district court granted judgment on the pleadings to the Appellees on the due process

issues raised under 42 U.S.C. § 1983. It relied upon the unpublished Sixth Circuit case of Treciak

24

v. State of Ohio, 117 F.3d 1421, *1 (6th Cir. 1997). In 1997 when that decision was written, it

could not be cited by any party or relied upon by any court as a binding precedent. See, In Re

Braddy, 195 B.R. 365, 370-72 (E.D. Mich. 1996) summarizing numerous Sixth Circuit cases

holding that unpublished decisions "have little or no precedential value" and they are not binding

upon lower federal courts. Indeed, they are not binding upon the Sixth Circuit itself. When

unpublished decisions are cited, some federal courts analyze the issues anew. Others, like the

court here, simply cite to the unpublished decision where they feel the case is persuasive. But,

Treciak is not a binding precedent.

Secondly, Treciak is not persuasive authority on any of the state law issues before this

court because it expressly states that it did not decide whether a state employee had a property

interest in continued classified service. The Sixth Circuit said at * 1:

The sole procedural due process issue before this Court is Plaintiffs' claim that theState created a property interest in continued classified service, and as such,guaranteed Plaintiffs notice and a hearing before correcting their status fromclassified to unclassified. We need not decide this issue on the merits because wehold that even if Plaintiffs have a property interest in continued classified status,Defendants are entitled to qualified immunity. (Emphasis added).

This facet of the Treciak case is important because a finding of qualified immunity is not

a ruling on the actual merits of the state law issues. Similarly, once the district court concluded

that the Treciak case applied here and Appellees were entitled to qualified immunity (Apx. p.52),

the remainder of its opinion on the state law issues is pure dicta. The district court seemed to

recognize this (Apx, p.45) but, instead of stopping there, it ventured into state law issues which

were unnecessary to its decision. For example, it said:

This Court agrees with Treciak, and the cases relied upon by Treciak, whichindicate there is no property right in the designation of a position as classified.This conclusion is consistent with Ohio civil service law, which provides that adesignation of `classified' or ùnclassified' status is merely informational. (Apx.p. 46). (Emphasis added).

25

There is no legal support for such an outlandish statement.

Further showing the district court's lack of any real understanding of the state law issues

and the resulting injustice to Appellant, it interpreted the word "reinstatement" in R.C. 124.11(D)

when that word is nowhere mentioned in that statute. (The district court said: "The use of the

word `reinstatement' in the statute further supports the implication that the position occupied and

the position `fallen back' to must be separate and distinct."). (Apx. p.47).

The Treciak facts are also different. In Treciak, the appointing authority claimed it was

"correcting" a mistake in the employee's status. Connelly never said he was correcting a mistake.

Nor could he make that claim under these facts. Further unlike the facts in Treciak, Connelly

never asked the DAS director to correct a mistake. There are other differences such as

Connelly's violation of RSC's "vacant position policy" and the coercion he exerted on Appellant

which are present here but not a factor in Treciak.

The district court meandered into some of the most complex civil service issues and

rendered a decision, albeit in dicta, which was based upon an issue not present in this case. It

said: "Whether an employee is unclassified pursuant to O.R.C. $ 124.11(A)(9) is determined by

the employee's actual job duties, not by the employer's designation of the employee's status."

(Apx. p.44).

Appellant's issues arise under R.C. 124.11(D), a different statute. Furthermore, if this

court finds that Appellant was not appointed under this statute and lacks fallback rights, then, as

Appellant argued above, she remained a classified employee subject to removal only as a

classified employee. R.C. 124.11 (A)(9) has nothing to do with fallback rights or the facts of this

case.

The district court cited Yarosh, supra, for the proposition that "whether an employee is

26

exempt because of a`fiduciary' or àdministrative' relationship is determined by the employee's

actual job duties rather than by the designation given to them by their appointing authorities."

(Apx. p. 44). Yarosh did not involve fallback rights. Appellant's right to resume her classified

status and position is vested by R.C. 124.11(D). Her actual job duties are not relevant to an

interpretation or application of R.C. 124.11(D) (except in an instance inapplicable here). If she

was appointed pursuant to R.C. 124.11(D) as the facts of this case show, then she has the right to

resume her classified position and status under this same statute.

Appellant has explained earlier how she became a classified, non-probationary, tenured

and permanent employee in state service. Under the facts of this case where the job was

advertised as a classified job, the appointing authority wanted a classified employee in that job,

the employee passed her probationary period, attained tenure and permanent status, and the

SPBR has a rule that such status cannot be attacked 8 years later, Appellant's job duties are

simply not an issue in this case.

Yarosh is distinguishable for yet another reason. The deputies in Yarosh were considered

unclassified by both Sheriff Yarosh and his predecessor. (Id. 9). As is obvious from the job

posting, the official records in this case and Appellant's affidavit testimony, Connelly's

predecessor, and Connelly himself, considered Appellant a classified and certified employee for

many years

The Sheriff in Yarosh argued that the SPBR lacked jurisdiction to hear the deputies'

appeals because they were "deemed unclassified by their appointing authorities." (Id. 9). The

case says nothing about an appointing authority's right to unclassify a classified employee.

Nowhere does the case permit an appointing authority to change an employee's status from

classified to unclassified, particularly where the employee is a permanent employee.

27

Secondly, ¶5 of the Yarosh syllabus precludes what Connelly has done to Appellant. This

syllabus cannot be any clearer. "Once a deputy attains permanent status, a sheriff cannot remove

him without following the procedures for such removals under R.C. 124.34." (Emphasis added).

It is undisputed that Appellant attained permanent (certified) status and Connelly removed her

without following the procedure in R.C. 124.34 for tenured employees.

The district court's understanding of state civil service law is faulty in another respect. It

opined that if Appellant were correct in her argument that she met the requirements for fallback

rights where she did not move to a separate position, then:

Once an employee's status was described as `classified,' a public employer couldnever effectively `correct' the mis-designation, because an employee couldalways `fall back' to a classified status in the very same position the employeehad always occupied. An outgoing administration could hamstring the incomingone simply by designating all its political appointees as `classified.' When theincoming administration attempted to replace them, the appointees could claim to`fall back' to classified status in the very same high-ranking policy-making jobsthey had occupied moments before.

First, those are not the facts of this case. Second, there is no proof presented by Appellees

here or in the district court that there was a mistake in assigning classified status to Appellant's

position or to her, nor could there be under these facts. Third, the court used the tenn "mis-

designation" which cannot be correlated to any civil service law or rule or any right in an

appointing authority to take such an action. Fourth, the comment concerning replacing "political

appointees" is not based upon the facts of this case. Appellant was a career civil servant in a

career position for 14 years.

Moreover, the district court failed to recognize that there are 32 different types of

unclassified jobs in R.C. 124.11(A) and these are all filled by unclassified political appointments.

These jobs number in the several thousands. There are more than ample jobs and classifications

listed there for the political process. It is unnecessary for honest government to add one more

28

individual to ensure that the incoming governor has 10,000 and 1 political appointees.

Absolutely nothing in this record suggests that Appellant was a political appointee or that the

General Assembly had this in mind when it enacted R.C. 124.11(D).

As the Asti case notes, R.C. 124.11(D) was enacted to benefit the state by allowing a

career classified civil servant to work for the appointing authority at his request without giving

up the protection of the individual's job tenure. R.C. 124.11(D) "provides appointing agencies

like DYS with a broader pool of experienced applicants for upper level, unclassified positions by

offering civil service protection to those classified employees appointed to unclassified

positions." Asti, ¶31. Appellant's job duties and the "spoils system" are not an issue in this case

and the district court's reasoning should be entirely rejected.

Regarding the comment that an incoming administration will be "hamstrung," that is

precisely the purpose of tenure. When a classified employee receives tenure and later becomes

permanent, this is her job security. Its purpose is to protect her from the spoils system. The

district court seemed to be of the opinion that any job, regardless of the facts, is fair game to

become a patronage job. That is not the law in Ohio and this has never been questioned. See,

State, ex rel. Sigall, v. Aetna (1976), 45 Ohio St.2d 308, 314, 345 N.E. 2d 61 saying: "It is clear,

therefore, that a purpose of the merit system in the civil service is to eradicate the spoils system

by protecting an employee who has civil service tenure from being arbitrarily discharged and

replaced with a political appointee."

If the district court's reasoning were correct and an appointing authority could change a

classified employee's tenure to at will employment (classified to unclassified) then tenure for

Ohio's classified employees who have applied for a posted classified job, were appointed as a

classified employee, by an appointing authority who wanted a classified employee, who passed

29

their probationary period, attained tenure under R.C. 124.34(A) and became a permanent

employee under R.C. 124.271 would be an illusion. This view of tenure is no tenure at all.

Tenure would not exist in Ohio for state employees.

The district court's opinion was uninformed and expresses a lack of understanding of the

civil service system in Ohio. It should have refrained from any decision on state law after finding

that Appellees were entitled to qualified immunity.

Tenure is job security and this court has on many occasions recognized the importance of

this fact in public employment. See, State ex rel. Couch v. Trimble Local School Dist. Bd of

Edn., 120 Ohio St.3d 75, 2008-Ohio-4910, ¶22, 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, 195, 2000-Ohio-130, Cuyahoga Falls Edn. Assn. v. Cuyahoga Falls City School Dist.

Bd. of Edn. (1991), 61 Ohio St.3d 193, 196, 574 N.E. 2d 442.

V. CONCLUSION

"It is axiomatic that `[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.

Couch, supra, ¶14, citing cases.

The SPBR has determined that it lacks jurisdiction over the fallback rights issues. (Apx.

p._32-33). As Appellant's tenure rights are intertwined with the fallback rights issues and SPBR

lacks jurisdiction, she lacks an adequate remedy at law. Appellant has demonstrated in this brief

that she either is a classified employee entitled to exercise fallback rights under R.C. 124.11(D)

or that Connelly failed to appoint her under that statute leaving her where she began, as a

classified employee. In either circumstance, she was wrongfully excluded from employment and

30

is entitled to the writ. State ex rel. Couch,114.

Respectfully submitted,

es E. Melle (00009493)ounsel ofRecord

UCKLEY KING LPAOne Columbus, Suite 130010 West Broad StreetColumbus, OH 43215-3419(614) 461-5600(614) 461-5630 faxmelle cr,buckleykin .̂ comCounsel for Realtor-Appellant

Certificate of Service

The undersigned hereby certifies that a true and accurate copy of the foregoing MeritsBrief of Relator-Appellant was served upon the following via U.S. mail:

Richard CordrayAttorney General of OhioJack W. DeckerPrincipal Assistant Attorney GeneralNichole S. MossAssistant Attorney GeneralGeneral Employment Law Section150 East Gay Street, 22"d FloorColumbus, OH 43215-3167

this 9lh day of February 2009.

31

IN THE SUPREME COURT OF OHIO

State ex rel. Eydie Glasstetter,

Relator-Appellant

V.

Rehabilitation Services Commission,

and

John Connelly, in his capacity asAdministrator

Respondents-Appellees.

On Appeal as of Right fromthe Court of Appeals,Franklin County, OhioTenth Appellate District

Court of Appeals Case No. 08AP-56

NOTICE OF APPEAL OF RELATOR-APPELLANT

EYDIE GLASSTETTER

James E. Melle (00009493) - Nancy H. Rogers,*Counsel of Record Attorney General of OhioBUCKLEY KING LPAOne Columbus, Suite 130010 West Broad StreetColumbus, OH 43215-3419(614) 461-5600(614) 461-5630 faxmellekbucklevking.comCounsel for Realtor-AppellantEydie Glasstetter

TC L

CLERK (li" CUURISUPREKE COURT OF OHIO

))

Jack W. Decker (0021285)Principal Assistant Attorney General*Counsel of RecordNicole Moss(0062938)Assistant Attorney GeneralEmployment Law Section30 East Broad Street, 26th FloorColumbus, OH 43215(614) 466-2980(614) 728-9470 faxelsreviewQaQ. state.oh.usCounsel for Respondents-AppelleesOhio Rehabilitation Services Commissionand John Connelly

1

NOTICE OF APPEAL

Relator-Appellant, Eydie Glasstetter, hereby gives notice of appeal to the Supreme Court

of Ohio from the judgment of the Franklin County Court of Appeals, Tenth Appellate District of

Ohio, entered in Case No. 08AP 56 on November 12, 2008. A date-stamped copy of the Court of

Appeals' judgment entry being appealed is attached to this Notice of Appeal.

This case originated in the Court of Appeals and therefore pursuant to S. Ct. R. II,

Section I(A)(1) is an appeal of right.

Respectfully submitted,

One Columbus, Suite 130010 West Broad StreetColumbus, OH 43215-3419(614) 461-5600(614) 461-5630 faxmelle(@buckle.yking.comCounsel for Realtor-Appellant

UCKLEY KING LPACounsel ofRecordmes E. Melle (00009493)

Certificate of Service

The undersigned certifies that the foregoing Notice of Appeal was served by ordinaryU.S. mail, postage prepaid, upon Jack W. Decker and Nicole Moss, Assistant Attorneys General,Employment Law Section, 30 East Broad Street, 26th Floor, Columbus, OH 43215-3428 on this171h day of November, 2008.

H:\CL\23471\004V'IeadingsWot.App.SCTt 11708.doc

22

20562 - T46

c^!^:^t r•: ,• :::.;.IN THE COURT OF APPEALS OF OHIO F r: `:' ' 1

TENTH APPELLATE DISTRICT

(Stabe ex rel.J Eydle Glasatetter,

Reiatar,

2,"1111 :2 r+2: 09

CLERK CF 'V'OURTS

v. No. 08AP-58

[John M. Conneiiy, Administralor, (REGULAR CALENDAR)Rehabiibtion Senrioes Commission],

Respondents.

JUDGMENT ENTRY

For the reasons stated in the decision of this court rendered herein on

November e, 2008, the objections to the deasion of the magistrate are overruled to the

extent addressed, respondenta' motlon for summary judgment Is granbed, the decision of

the magistrate Is appmved and adopted by the aouit as tts own, and it is the judgment

and onier of this oourt that the requeated writ of mandamus Is denied. Costs asses;sed to

relator.

Within three (3) daya from the filing hereof, the derk of this ooust is hereby

ordered to sen►e upon all parties not In defauft fcr faiiure to appear notiCe of this judgment

and ita date of entry upon the joumal.

Judge Patrk;k M. McGrath; P.J.

•J',- -. .â,

Ju ge WiAlam A.1Uatt

3

F'iLEDCOURT QF APpF,1!_NFRANI<;[.Ili co. U1+I€)

IN THE COURT OF APPEALS OF OHIO 218

PH 1: 34

TENTH APPELLATE DISTRICT CLERK OF COURTS

[State ex rel.] Eydie Glasstetter,

Relator,

No. 08AP-56

[John M. Connelly, Administrator, (REGULAR CALENDAR)Rehabilitation Services Commission],

Respondents.

D E C I S I O N

Rendered on November 6, 2008

Buckley King LPA, James E. Melle and Chad J. Kaldor, forrelator.

Nancy N. Rogers, Attorney General, Jack W. Decker andNichole S. Moss, for respondents.

IN MANDAMUSON OBJECTIONS TO MAGISTRATE'S DECISION

BRYANT, J.

{11} Relator, Eydie Glasstetter, commenced this original action requesting a writ

of mandamus that orders respondents Rehabilitation Services Commission and its

administrator, John M. Connelly, to reinstate her to the classified position of Human

1 4

No. 08AP-56 2

Resources Administrator 3("HRA 3") pursuant to R.C. 124.11(D)'s so-called "fallback"

provision.

{12} Pursuant to Civ.R. 53 and Section (M), Loc.R. 12 of the Tenth Appellate

District, this matter was referred to a magistrate who issued a decision, including findings

of fact and conclusions of law. (Attached as Appendix A.) In his decision, the magistrate

concluded respondents' motion for summary judgment should be granted, and relator's

motion for summary judgment should be denied because R.C. 124.11(D) does not grant

relator a clear legal right to reinstatement to her classified position as HRA 3; nor does it

impose upon respondents a clear legal duty to reinstate relator to that position.

(13} Explaining, the magistrate stated "[i]t is clear from the undisputed evidence

before this court that relator was never appointed from a position in the classified service

to a position in the unclassified service." (Magistrate's Decision, ¶80.) Instead, "the HRA 3

position was simply redesignated from classified to unclassified by the appointing

authority. Only one position was involved in the redesignation." Id. Because "the

appointing authority did not appoint relator from a position in the classified service to a

position in the unclassified service, R.C. 124.11(D) has no application here. Relator's

circumstances fail to satisfy the statutory requirements under R.C. 124.11(D)." Id.

{14} Relator filed objections to the magistrate's decision, contending "the

magistrate erred as a matter of law":

11) In denying a writ of mandamus ordering Relator'sreinstatement after finding that Relator was not appointed to aposition in the unclassified service as she thus remained aclassified employee;

2) In finding and concluding that Relator's position "wassimply redesignated from classified to unclassified by the

5

No. 08AP-56 3

appointing authority" as there is no such statuto(ly authorizedpower in O.R.C. Chapter 124 and Respondent cannot createnew appointing authority powers for itself;

3) In failing to find that Relator's consent to becomeunclassified was coerced and thus Relator remained aclassified employee who could not be removed from her .position except in accordance with the requirements of R.C.124.34;

4) In applying two inapplicable procedural rules of the StatePersonnel Board of Review to interpret R.C. 124.11(D);

5) In failing to find under the circumstances of this case thatRelator['s] consent was coerced and thus ineffective to divesther of her classified status;

6) In ruling that Exhibit "B;' ADM 2002.15, was irrelevant tothe outcome in this case;

7) In ruling that John Connelly's statement to Relator, made atthe time he ordered her to become unclassified, that she hadfallback rights was irrelevant to the outcome in this case;

8) In ruling that Relator's tenure could be divested withoutcompliance with R.C. 124.34;

9) In failing to find under the circumstances of this case thatRelator's consent to become unclassified was coerced andthus ineffective to divest her of her classified status;

10) Whether Relator was classified or unclassified at the timeof her removal[.]

1. Procedural History

{15} As the magistrate's decision sets out more fully, relator was hired to fill the

HRA 3 position with respondent Rehabilitation Services Commission in October 1998.

Although relator assumed the position as a classified employee, in 2006 the position was

changed to an unclassified one. Subsequent to the change, Connelly informed relator on

August 18, 2006 he was terminating her from that position. Upon her termination, relator

6

No. 08AP-56 4

appealed to the State Personnel Board of Review, requesting that she be reinstated to

her HRA 3 position.

116} Relator further argued her reinstatement should be to the classified service

due to the fall-back rights she had under R.C. 124.11(D). Because the State Personnel

Board of Review lacks jurisdiction to review a denied request to exercise fall-back rights,

the State Personnel Board of Review stayed relator's appeal to allow the parties to

resolve the issue of'fall-back rights through a-mandamus action, "aftervbhich•1ime this

Board shall take any remaining action deemed necessary." (Magistrate's Findings of Fact

No. 6.)

11. Facts

{17} According to the evidence relator submitted, Connelly told relator on or

about April 3, 2006 that he wanted to-unclassify her position. Relator asserts Connelly

presented the circumstances to her as a choice: she could either remain classified and

respondent would hire another employee with the same classifications and duties as

relator who would "be over" her, or she could agree to become unclassified. (Magistrate's

Findings of Fact No. 23.) Contending she was acting under coercion and duress, she

advised Connelly she would "go unclassified because it was not a risk." Id. According to

relator, Connelly responded "that's right because you have fallback rights." Id.

19[8} Relator's affidavit states that the day after relator asked for something in

writing from Connelly reflecting that Connelly directed her to "go unclassified," one of

Connelly's assistants delivered a memorandum asking that relator prepare the necessary

paperwork regarding her change to the unclassified service, "including your statement of

your willingness to move to the unclassified service ***." (Magistrate's Findings of Fact

7

No. 08AP-56 5

No. 26.) Relator did so, but concluded by stating that "I further understand that I may be

entitled to 'fall-back' rights under Ohio Revised Code section 124.11 (D)." Id. at No. 27.

Through her attorney relator attempted to exercise her claimed fall-back rights, but

Connelly advised she had no rights under R.C. 124.11(D). Following an investigation,

relator's employment was terminated.

Ill. Objections

î, -{y[91 -°•Despitd the breadth of relator's objectiohs, the sPngle issue before Us is

whether relator is entitled to exercise fall-back rights pursuant to R.C. 124.11(D). R.C.

124.11(D) provides that "[a]n appointing authority' "` * may appoint a person who holds a

certified position in the classified service within the appointing authority's agency to a

position in the unclassified service within that agency." As pertinent here, it further

provides that "[a] person appointed pursuant to this division to a position in the

unclassified service shall retain the right to resume the position and status held by the

person in the classified service immediately p(or to the person's appointment to the

position in the unclassified service, regardless of the number of positions the person held

in the unclassified service."

(q[10) As-the magistrate explained, relator fails to meet the requirements of R.C.

124.11(D) because she was never appointed to a position in the unclassified service.

Rather, the position she held was redesignated an unclassified position. Indeed,

respondents contend the position, by its duties, was unclassified from the moment relator

accepted it in 1998. We, however, need not resolve that issue; it is one properly

determined before the State Personnel Board of Review. Instead, we determine only that,

8

No. 08AP-56

for the reasons set forth in the magistrate's decision, relator has no fall-back rights under

R.C. 124.11(D).

{9[11} Relator nonetheless contends respondents are estopped from denying her

fall-back rights because Connelly, in discussing the redesignation of her position to

unclassified, told her she had such rights. Although acknowledging that estoppel

generally does not apply against the state, relator contends her case presents an

exception to the general principlebecause respondent had the' authority ta give relator

fall-back (ghts. Connelly's granting them, relator argues, is therefore consistent with law

and estoppel does not apply.

{112} "The Ohio Supreme Court has held consistently that the doctrine of

promissory estoppel does not apply to the state, its agencies, or public officials in the

exercise of its governmental functions." Tn:ciak v. State of Ohio, Dept. of Commerce

(C.A.6 Ohio July 10, 1997), No. 96-3303. (Citations omitted.) Because Connelly was a

public official when he redesignated relator's position, he was exercising a govemmental

function, and promissory estoppel does not apply.

{113} Moreover, contrary to relator's contentions, Connelly had no authority to

give relator fall-back rights, as R.C. 124.11(D) does not provide them under the

circumstances of this case. To apply estoppel would in effect force respondent to act

contrary to the law set forth in R.C. 124.11(D). Such a result is at least part of the reason

estoppel generally does not lie against the state. See, e.g., Ohio State Bd. of Pharmacy v.

Frantz (1990), 51 Ohio St.3d 143, 146. Indeed, if, as relator argues, the statute

authorized Connelly to grant fall-back rights, relator would not have to rely on estoppel to

secure them.

9

No. O8AP-56 7

{114} The remainder of relator's objections ask us to resolve issues properly left

to the State Personnel Board of Review's determination; we thus decline to rule on them.

To the extent, however, we addressed relator's objections, we overrule them.

{115} Following independent review pursuant to Civ.R. 53, we find the magistrate

has properly construed the evidence in relator's favor and, applying the salient law, has

properly concluded relator lacks fall-back rights under R.C. 124.11(D). Accordingly, we

adopt the magistrate's decision ats our own, including'the findings of fact and conclusions

of law contained in it. In accordance with the magistrate's decision, we grant respondents'

motion for summary judgment and deny the requested writ of mandamus.

Objections overruled to the extentaddressed; motion forsummaryjudgment granted; writ denied.

McGRATH, P.J., and KLATT, J., concur.

10

No. 08AP-56 8

APPENDIX A

,IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

[State ex rel.] Eydie Glasstetter,

Relator,

v. : No. 08AP-56

[John M. Connelly, Administrator, : (REGULAR CALENDAR)Rehabilitation Services Commission],

Respondent.

MAGISTRATE'S DECISION

Rendered July 15, 2008

Buckley King LPA, James E. Melle and Chad J. Kaldor, forrelator.

Nancy H. Rogers, Attorney General, Jack W. Decker andNichole S. Moss, for respondents.

IN MANDAMUSON MOTIONS FOR SUMMARY JUDGMENT

(116) In this original action, relator, Eydie Glasstetter, requests a writ of

mandamus ordering respondents Rehabilitation Services Commission ("RSC") and its

administrator, John M. Connelly ("Connelly"), to reinstate her to the position of Human

11

No. 08AP-56 9

Resources Administrator 3 ("HRA 3") pursuant to R.C. 124.11(D)'s so-called fallback

provision.

Findings of Fact:

HOW THIS MANDAMUS ACTION RELATES TO

OTHER PENDING ACTIONS

{9[17} 1. By letter dated August 18, 2006, Connelly informed relator of his

decision to terminate her from the HRA 3 position she had held with RSC since October

1998.

{118} 2. Earlier, by letter dated June 21, 2006, relator, through her attorney, had

informed Connelly that she was exercising her alleged R.C. 124.11(D) fallback rights to

resume the HRA 3 position she had held. In the letter, relator claimed that Connelly had

coerced her to abandon the classified service prior to her termination.

1119} 3. In August 2006, relator appealed to the State Personnel Board of

Review ("SPBR") her removal from her HRA 3 position. Relator requested that the action

of the appointing authority be disaffirmed and that she be reinstated to her HRA 3

position. This appeal to SPBR is assigned case number 06-REM-08-0342.

{120} 4. On December 20, 2006, conce,rned that SPBR might find relator to have

been removed from the classified service, RSC issued a precautionary "123.34 order."

{121} 5. Relator filed a second appeal to SPBR on December 27, 2006 based

upon RSC's "124.34 order." Relator's second appeal to SPBR is assigned case number

06-REM-12-0521. As in the prior appeal, relator requested that the action of the

appointing authority be disaffirmed and that she be reinstated to her HRA 3 position.

12

No. 08AP-56 10

{122} 6. On June 18, 2007, an SPBR administrative law judge ("AU") stayed the

proceedings in case number 06-REM-08-0342. The SPBR's June 18, 2007 order

explains:

Entwined within the circumstances of this particular appeal is[Relator's] argument that, regardless of [RSC's] statedopposition, her position was returned to the classified serviceas a matter of law by her expressed intent to exercise fall-back rights pursuant to R.C. 124.11(D). [Relator] asserts thatshe has a clear, legal right to exercise such rights. A validexercise òf fatl-back tights - by [Relator] cou(d potentiallyimpact the issue of waiver and estoppel.

This Board held in Asti v. Ohio Department of Youth Services,SPBR Case No. 03-MIS-01-0001, and the Supreme Courtaffirmed in State ex reL Asti v. Ohio Dept. of Youth Servs.,107 Ohio St.3d 262, 2005-Ohio-6432, that it lacks jurisdictionto review an apparent denial of a request to exercise failbackrights. Similarly, this Board is not authorized by R.C. 124.03or any other section of the Ohio Revised Code to make adetermination as to the validity of [Relator's] assertion that herprerogative to exercise her fall-back rights was a clear, legalright.

Accordingly, the instant appeal is hereby STAYED in order toallow the parties to pursue resolution of the fall-back rightsquestion through a mandamus action, after which time thisBoard shall take any remaining action deemed necessary.

(Emphasis sic.)

{123} 7. On July 9, 2007, another ALJ issued a stay order in case number 06-

REM-12-0521.

(9[24} 8. Earlier, on February 20, 2007, relator filed a federal civil action against

RSC, Connelly, and Katherine A. Brown, who was the assistant administrator of RSC

when relator was employed at RSC. That action was filed in the United States District

Court for the Southern District of Ohio. That action remains pending.

13

No. 08AP-56 11

{125} 9. On January 22, 2008, relator filed this original action seeking a writ of

mandamus.

PROCEDURAL CHRONOLOGY OF THIS ACTION

{126} 10. On February 6, 2008, in this action, respondents moved for summary

judgment or, in the alternative, for dismissal of the action.

{127} 11. In support of summary judgment, respondents submitted affidavits that

were filed in the federai civil action; including the-exhibits to the affidavits:

11[28} 12. On February 7, 2008, this magistrate issued notice of a non-oral

hea(ng date for respondents' motion for summary judgment.

1129} 13. On March 10, 2008, relator filed her memorandum in opposition to

respondents' motion for summary judgment. In her memorandum in opposition, relator

extensively relied upon the affidavits and exhibits submitted by respondents in support of

their motion for summary judgment.

19[30} 14. On April 8, 2008, relator moved for summary judgment.

{1311 15. On April 16, 2008, this magistrate issued notice of a non-oral hearing

date for relator's motion for summary judgment.

11321 16. In support of summary judgment and in opposition to respondents'

motion, relator submits the affidavit of David C. Miller executed March 25, 2008. Mr.

Miller was an appointed RSC commissioner from September 1991 to October 2005. In

his affidavit, Mr. Miller states that he was RSC chairperson from April 1999 to March

2003.

{133} 17. On April 15, 2008, respondents filed their memorandum in opposition to

relator's motion for summary judgment

14

No. 08AP-56 12

RELATOR'S AFFIDAVIT

{134} 18. In the federal civil action, relator filed her affidavit executed

November 13, 2007. That affidavit, along with its 23 exhibits, has been submitted in this

action in support of respondents' motion for summary judgment.

11351 19. According to her affidavit, on May 13, 1998, RSC posted an HRA 3 job

for bid. The job posting stated that the HRA 3 position was a classified position. Relator

had been employed with the state ofOhio with other'agenciessinee January 6, +992.

{136} 20. According to her affidavit, relator applied for the HRA 3 job posted by

RSC. Following an interview and notification that she was selected for the position,

relator transferred her state employment to RSC effective October 11, 1998.

1137} 21. According to relator's affidavit at paragraph 14:

Several years before 2006, the RSC Commissioners adopteda policy which provided that no position in RSC which wasoccupied by a classified employee could be changed to anunclassified position while the position was occupied. Thepolicy permitted unclassifying the job only after the positionbecame vacant.

1138} 22. According to relator's affidavit, on or about April 3, 2006, Connelly told

relator that he wanted to "unclassify" her position. RSC Assistant Director Katherine A.

Brown also concurred in the reclassification.

{1[391 23. According to relator's affidavit, Connelly offered relator "a choice."

Relator could either remain classified and RSC would hire another employee with the

same classification and duties as relator, and this new employee "would be over" her; or,

relator could agree to become unclassified and RSC would not hire a new employee.

According to relator's affidavit, acting under coercion and duress, she told Connelly that

15

No. 08AP-56 13

she would "go unclassified because it was not a risk." Connelly responded "thaYs right

because you have fallback rights."

{140} 24. According to reiator's affidavit, on or about April 24 or 25, 2006, relator

told Brown that she would like something in writing from Connelly that he had directed her

to "go unclassified." Relator also told Brown that she felt that she had no choice in the

matter even though Connelly could not legally have "two HRA3s for the same job."

(1[41} 25. According to relator's affidavit, on May 16, 2006, Connelly asked relator

whether she had said that she needed something in writing from him. Relator told

Connelly that she did and that what he proposed to her was wrong because he could not

have two HRA 3s doing the same job. Relator also told Connelly that he had left her with

no option.

{142} 26. According to relator's affidavit, the next day, one of Connelly's

assistants delivered to relator the following memorandum dated May 17, 2006:

Per our conversation and your decision, please prepare andprocess to the Department of Administrative Services thenecessary paperwork, including your statement of yourwillingness to move to the unclassified service, moving theposition that you currently occupy as the Team Leader ofHuman Resources to the unclassified service.

Your expeditious cooperatiori in this matter is appreciated.Please have the necessary paperwork prepared andpresented to me for my signature by close of business onWednesday, Maw 24th, with an effective date for the action ofSunday, May 28 .

{143} 27. According to relator's affidavit, on May 22, 2006, she signed the

following document which she provided to Connelly:

I hereby accept the redesignation of my position of HumanResource Administrator 3. I understand that the position,

16

No. 08AP-56 14

I effective 5-29-06, has been designated as unclassified by theRehabilitation Services Commission. I acknowledge that theposition is in the unclassified civil service of the State of Ohiopursuant to Ohio Revised Code section 124.11 (A) (9). Ifurther understand that I may be entitled to "fall-back" rightsunder Ohio Revised Code section 124.11 (D).

11[44} 28. According to relator's affidavit, on June 19, 2006, Brown told relator that

she was being investigated.

(145} 29. According to relator's affidavit, by letter dated June 21, 2006, her

attorney advised Connelly as follows:

Please be advised that I represent Mrs. Eydie Glasstetterwho, as you know, has been recently directed by you tocomplete the paperwork necessary to place her in theunclassified service with fallback rights pursuant to R.C. §124.11(D). As you are also aware, this act was doneinvoluntarily under direct orders from you and, I might add,unlawfully as you do not have the right to force any employeeto abandon classified civil service status and move into theunclassified service. Nonetheless, please be advised thatEydie Glasstetter, pursuant to R.C. § 124.11(D) and the caseof State ex re1. Asti v. Ohio Department of Youth Services,107 Ohio St.3d 262, 2005-Ohio-6432, hereby exercises herfaliback rights to resume the same classified position andstatus held immediately prior to her forced appointment to theunclassified service effective upon the faxing of this letter toyour office.

1146} 30. According to relator's affidavit, by letter dated June 30, 2006, Connelly

advised relator's attorney:

In response to Ms. Glasstetter's allegation of fall back rights toa classified position, please be advised that ORC 121.11(D)and the Asti decision that you have cited do not provide Ms.Glasstetter with fall back rights. Therefore, her request isdenied.

(147} 31. During June and July 2006, pursuant to Connelly's request, an

investigation was conducted by Elizabeth K. Murch, Chief, Bureau of Employee

17

No. 08AP-56 15

Relations. Murch issued a report in August 2006 finding that relator "acted

inappropriately by not being truthful during this investigation and by engaging in retaliatory

behavior against Ms. McNabb for complaining about Ms. Glasstetter to Assistant

Executive Director Brown." The Murch report is presented as an exhibit to Connelly's

affidavit which will be addressed more fully below.

{9[48} 32. According to relator's affidavit, by letter dated August 15, 2006,

Connelly advised relator:

Attached please find a copy of the investigative report by Ms.Elizabeth Murch.

Based upon the information and findings of the report you arehereby notified that I am considering termination of youremployment with the Ohio Rehabilitation Services Commis-sion effective close of business Monday, August 21, 2006.However, prior to a final decision you do have the opportunityto submit to me for consideration any written statement and/ordocumentation of why you should not be terminated from yourposition. You may, of course, fax this information to me. In theevent you submit sufficient justification on why you should notbe terminated you will be immediately notified.

{149} 33. According to relator's affidavit, by letter dated August 15, 2006,

Connelly advised relator that she was being placed on "administrative leave" effective

immediately.

1150} 34. According to relator's affidavit, by letter dated August 15, 2006, relator's

attorney advised Connelly:

In response to your August 15, 2006 letter, Mrs. EydieGlasstetter denies that she has done anything wrong anddenies that you have just cause for her removal. We cannotsay more as Eydie remains on administrative leave per yourorder.

18

No. 08AP-56 16

i{151} 35. According to relator's affidavit, by letter dated August 18, 2006,

Connelly advised relator:

This letter is to notify you of my final decision to terminate youfrom your position of Human Resources Administrator 3effective close of business Monday, August 21, 2006. * * * Asyou were previously advised, the decision is based upon theinformation and findings of the investigative report submittedby Ms. Elizabeth Murch. You were provided the opportunity tosubmit any statement and/or documentation of why youshould not be terminated. A letter was submitted on yourbehalf by Mr. James E. Melle and was received on-August 15,2006 and was considered in making the final decision.

CONNELLYS AFFIDAVIT

{152} 36. In the federal civil action, Connelly filed his affidavit executed

December 12, 2007, along with exhibits. Connelly's affidavit has been submitted to this

mandamus action in support of respondents' motion for summary judgment.

{q53} 37. According to Connelly's affidavit, he is the executive director of RSC, a

position he has held since May 20, 2001. As RSC executive director, he is that agency's

appointing authority. He is also an attorney at law licensed to practice in Ohio. He

formerly served as RSC's general counsel from 1982 to 1992.

{154} 38. According to Connelly's affidavit, RSC currently has approximately

1,300 employees and consists of three bureaus: (1) the Bureau of Disability

Determination (BDD); (2) the Bureau of Vocational Rehabilitation (BVR); and (3) the

Bureau of Services for the Visually Impaired (BSVI).

{155} 39. According to Connelly's affidavit:

*"* During her employment with RSC, Eydie Glasstetter'sworking title was RSC's Team Leader for Human Resources.Her formal classification was Human Resources Administrator3 ("HRA 3"). Ms. Glasstetter was never appointed to any other

19

No. 08AP-56 17

position during her or my tenure at RSC. Rather, throughouther employment with RSC, Ms. Glasstetter remained in thesame position. * * *

* * * On or about May 17, 2006, I directed Ms. Glasstetter tocomplete the paperwork necessary to redesignate herposition as "unclassified". This change in designation did notentail-any "appointment" by me, or any change in the identityof the position occupied by Ms. Glasstetter. Rather, the sameposition she had always occupied was now described as"unclassified" rather than "classified".

* * * Ido not recall âdvising Ms. Glasstetter that she had "fall-back" rights, either at the time her position's status wasredesignated, or at any other time. I do not believe Ms.Glasstetter ever enjoyed "fall-back" rights under O.R.C. §124.11(D) with respect to the position she occupied at RSC.

* * * Over the course of time, it became clear to me thatRSC's personnel records designated as "classified" a numberof fiduciary and/or policy-making positions that should havebeen treated as "unclassified" under O.R.C. § 124.11(A)(9).On or about April 1, 2002, after several rounds of discussionwith RSC's Commissioners and Executive Staff, RSC'sapproach to filling policy-making positions in the future wasmemorialized in a document entitled ADM 2002.15,"Management Structure". * * *

{9[56) 40. Attached to Connelly's affidavit as an exhibit is an RSC document

captioned "ADM 2002.15 Management Structure." Dated April 1, 2002, the document is

a memorandum from Connelly to the RSC staff. The document states:

Over the recent weeks there has been an ongoing dialogueamong Commissioners and Executive Staff, as to how theCommission can insure that we continue to be efficient andeffective. After much discussion between Commissioners,and myself, we have decided we will be increasing thepositions in the agency that are unclassified. As vacanciesoccur in the Executive Staff, these positions will be examinedindividually to determine if they should be moved tounclassified service.

20

No.08AP-56 18

{9[57}

One of the reasons that the unclassified status was createdwas to recognize the importance of persons within fiduciaryleadership positions and to allow agencies the greatestflexibility at those levels. This will allow the agency to identifyqualifications for the positions to meet the unique decisionmaking and fiduciary needs of the agency in these topexecutive positions.

Traditionally, at this agency it has been the Administrator nowExecutive Director plus the three Bureau Directors. Given thepace and degree that change occurs in the world today andthe.increasing complexities and volume of issues, more staffneed to be involved in the policy setting for the agency:

41. According to Connelly's affidavit:

* * * ADM 2002.15 neither stated, nor was it intended to state,that RSC would never redesignate the status of an occupiedposition. Nor did any other policy of RSC, adopted either bythe Commissioners or myself, prohibit the agency fromredesignating the status of an occupied position from"classified" to "unclassified", if the duties of the position placedit in the unclassified service pursuant to O.R.C. §124.11(A)(9). Nor do I recall advising Glasstetter or otherRSC managers that ADM 2002.15 or any other policyrequired RSC to continue to designate occupied positions as"classified" regardless of the actual duties of those positions.

AFFIDAVIT OF DAVID C. MILLER

{9[58} 42. As noted earlier, in this mandamus action, relator submitted the

affidavit of David C. Miller in support of her merriorandum in opposition to respondents'

motion for summary judgment as well as in support of her motion for summary judgment.

{159} 43. The Miller affidavit executed for this action on March 25, 2008 states:

"** Affiant was first appointed a Commissioner on the OhioRehabilitation Services Commission (RSC) by GovernorVoinovich in September 1991 and was re-appointed at theend of his first term by Governor Voinovich to a second termwhich ended on October 2, 2005. Affiant served continuouslyduring that time with no break in service.

21

No. 08AP-56 19

***

* * * Affiant was chairperson of the RSC from April 1999 untilMarch 2003.

* * * In his capacity as an RSC Commissioner andlor as chair-person, Affiant worked with and supervised Connelly.

* * * While Affiant was chairperson of the RSC, at least twoCommissioners expressed a desire to make more positions inRSC unclassified. Eydie Glasstetter's position was not one ofthe positions that Affiant.ever heard. discussed. Affiant did notsupport ths idea of chtanging any classified position tounclassified. Neither did Connelly during any of thediscussions the Affiant ever heard.

* * * In his capacity as an RSC Commissioner and as chair-person, Affiant heard Connelly discuss the possiblemovement of a classified employee into the unclassifiedservice on more than a dozen occasions.

* * * In all of our discussions on this subject, Connelly alwaysagreed there was "no reason" to move a classified employeeinto the unclassified service because he always said thatclassified employees would have fallback rights.

***

* * * Affiant has read the affidavit of Connelly and Exhibit "B,"ADM 2002.15 Management Structure (Exhibit "B") describedin ¶6.

"* * Affiant understands the policy expressed in Exhibit "B" toread that the only time a classified position would be changedto unclassified was when it was vacant.

* * * Affiant's reading of the policy expressed in Exhibit "B" isconsistent with Connelly's discussions with Affiant and theRSC Commissioners. It is also consistent with the intent of themajority of the RSC Commissioners at the time the policy waswritten in 2002- that no classified employee would bechanged to unclassified.

22

No. 08AP-56 20

* * * The Connelly Affidavit in ¶5 states: "I do not believe Ms.Glasstetter ever enjoyed 'fallback' rights under O.R.C.124.11(D) with respect to the position she occupied at RSC."

* * * This statement is contrary to every statement thatConnelly ever made to Affiant on the subject of failback rightsand in our discussions of moving an employee from theclassified to the unclassified service.

* * * Connelly's statement in ¶6 of his Affidavit is correct in thatthe policy was to apply in the future when "filling policy-making positions." It was not the intent of the RSCCommissioners at the time the•RSC poficywas discussed thatthe Executive Director be permitted to change a classifiedemployee into an unclassified employee.

* * * Affiant states that the opinion expressed by Connelly in¶8 'of his affidavit is inconsistent with the discussions betweenConnelly and the RSC Commissioners conceming theclassified employees at RSC. A majority of the RSCCommissioners intended that the classified employees remainclassified and only when the particular position becamevacant that it would be evaluated for a possible change to theunclassified service.

Conclusions of Law:

{160} It is the magistrate's decision that this court grant respondents' motion for

summary judgment. It is further the magistrate's decision that this court deny relator's

motion for summary judgment.

{161} On June 21, 2006, the date of the letter from relator's attorney stating that

relator hereby exercises her fallback rights under R.C. 124.11(D), that statutory provision

read:

An appointing authority whose employees are paid directly bywarrant of the auditor of state may appoint a person whoholds a certified position in the classified service within theappointing authority's agency to a position in the unclassified

23

No. 08AP-56 21

service within that agency. A person appointed pursuant tothis division to a position in the unclassified service shallretain the right to resume the position and status held by theperson in the classified service immediately prior to theperson's appointment to the position in the unclassifiedservice, regardless of the number of positions the person heldin the unclassified service. Reinstatement to a position in theclassified service shall be to a position substantially equal tothat position in the classified service held previously, ascertified by the director of administrative services. If theposition the person previously held in the classified servicehas been placed in the. unclassified service or is otherwiseunavailable, the persqn shall be appointed to a position in theclassified service within the appointing authority's agency thatthe director of administrative services certifies is comparablein compensation to the position the person previously held inthe classified service. * * *

(Emphasis added.)

(j[62) Parenthetically, the magistrate notes that effective June 30, 2006, H.B.No.

530 amended R.C. 124.11(D) by adding the following language:

* * * An employee's right to resume a position in the classifiedservice may only be exercised when an appointing authoritydemotes the employee to a pay range lower than theemployee's current pay range or revokes the employee'sappointment to the unclassified service. An employee forfeitsthe right to resume a position in the classified service whenthe employee is removed from the position in the unclassifiedservice due to incompetence, inefficiency, dishonesty,drunkenness, immoral conduct, insubordination, discourteoustreatment of the public, neglect of duty, violation of thischapter or the rules of the director of administrative services,any other failure of good behavior, any other acts ofmisfeasance, malfeasance, or nonfeasance in office, orconviction of a felony. An employee also forfeits the right toresume a position in the classified service upon transfer to adifferent agency.

(Emphasis omitted.)

24

No. 08AP-56 22

1163} Apparently, as respondents here contend, the addition of the above-quoted

language to R.C. 124.11(D) pursuant to H.B.No. 530 was the General Assembly's

response to the decision of the Supreme Court of Ohio in State ex rel. Asti v. Ohio Dept.

of Youth Seivs., 107 Ohio St.3d 262, 2005-Ohio-6432.

{164} In Asti, the court applied the pre-June 30, 2006 version of R.C. 124.11(D).

{q[65} In August 1990, the Ohio Department of Youth Services ("DYS") hired Tony

Asti as an account clerk. In July 1998, DYS promoted Asti to a position classified as

Fiscal Officer 4. Between August 1990 and July 1999, Asti held various DYS positions

which were all in the classified service.

1166} On July 13, 1999, the DYS director appointed Asti Fiscal Management

Bureau Chief of the DYS Division of Finance and Planning. This bureau chief position

was unclassified. In a letter to Asti, the DYS director specified that the appointment was

being made pursuant to R.C. Chapter 124 and that Asti would retain the right to resume

his previous classified position or be placed in a comparable one.

{167} In April 2001, DYS promoted Asti to the unclassified position of Acting

Deputy Director of the Division of Finance and Planning. In December 2001, DYS

promoted Asti to the unclassified position ofDeputy Director of the Division of Finance

and Planning.

11681 On December 16, 2002, Asti attended a meeting that included a DYS

director and a DYS attorney. At that time, Asti was informed that he could either be

demoted to another unclassified position or be removed from employment with DYS.

During this meeting, Asti asked whether he had any fallback rights, and he was told that

he did not. Asti signed a form consenting to a demotion to the position of Correctional

25

No. O8AP-56 23

Institutional Deputy Superintendent 3 at Scioto Juvenile Correctional Facility in Delaware

County, Ohio. Asti added the following handwritten statement to the form:

"I am signing this statement with the understanding that I willbe able to research the right to fall back to my previousposition in the classified service regardless of the number ofclassified positions I held."

Id. at ¶8.

{169} On January 2, 2002, Asti appealed his demotion to the SPBR. On July 24,

2003, an ALJ for the SPBR issued a report and recommendation. The AU

recommended that the SPBR dismiss the appeal for lack of subject matter jurisdiction.

On August 27, 2003, the SPBR adopted the ALJ's recommendation and dismissed Asti's

appeal for lack of jurisdiction.

11701 On September 9, 2003, Asti's employment with DYS ended. Despite

repeated demands, neither DYS nor its director provided Asti with his previous position in

the classified service under the statutory fallback provision.

{171} In October 2003, Asti filed a complaint in this court against DYS and its

director. Asti requested a writ of mandamus to compel DYS to: (1) reinstate him to his

fallback, classified position; (2) reinstate him to his unclassified deputy director position;

(3) pay him back pay and lost benefits; (4) award costs and attorney fees; and (5) pay

interest. DYS answered the complaint, and the parties moved for summary judgment.

{1172} On December 16, 2004, this court denied the writ of mandamus and,

thereafter, Asti appealed as of right to the Supreme Court of Ohio.

{173} On appeal as of right, the Supreme Court of Ohio reversed the judgment of

this court and remanded the cause. The Asti court explains:

26

No. 08AP-56 24

In interpreting R.C. 124.11(D), our paramount concern islegislative intent. See State ex reL United States Steel Cotp.v. Zaleski, 98 Ohio St.3d 395, 2003-Ohio-1630 ***¶ 12. Todetermine this intent, we read words and phrases in contextaccording to the rules of grammar and common usage. R.C.1.42; State ex rel. Cincinnati Bell Tel. Co. v. Pub. Util. Comm.,105 Ohio St.3d 177, 2005-Ohio-1150 ***¶31.

Reading the applicable words of R.C. 124.11(D) in context,we conclude that Asti has an unqualified right to resume hisprevious position in the classified service. Asti was appointedto an unclassified position from a classified position pursuantto R.C. 124.11(D). "'[1']he word "shall" shall be construed asmandatory unless there appears a clear and unequivocallegislative intent that [it] receive a construction other than [its]ordinary usage.' "(Brackets sic.) Ohio Civ. Rights Comm. V.Countrywide Home Loans, Inc., 99 Ohio St.3d 522, 2003-Ohio-4358 ***¶4, quoting Dorrian v. Scioto ConservancyDist. (1971), 27 Ohio St.2d 102 * * * paragraph one of thesyllabus. The "shall" in R.C. 124.11(D) clearly requires amandatory construction.

In addition, "retain" means "to hold or continue to hold inpossession or use," and "resume" means to "begin again."Webster's Third New International Dictionary (1986) 1938 and1937.

Thus, a person appointed to the unclassified service underR.C. 124.11(D) holds the legal right to begin his previousclassified position again. This right is not conditioned uponany additional triggering event, and its exercise is notrestricted to any particular time or event. Consequently, R.C.124.11(D) vests an unqualified right in a person so appointedat any time after appointment to the unclassified positionunder this section.

***

This interpretation is supported by Ohio Adm.Code 123:1-5-03(C), which specifies that "[u]nclassifed appointments madepursuant to division (D) of section 124.11 of the Revised Codemay be rescinded by the. appointing authority or upon therequest of the employee." * * *

27

No. 08AP-56 25

Furthermore, as Asti notes, R.C. 124.11(D) is a remedialprovision that protects state employees when they move fromclassified positions, from which they may be terminated onlyfor just cause, to unclassified, terminable-at-will positions. Itprovides appointing agencies like DYS with a broader pool ofexperienced applicants for upper level, unclassified positionsby offering civil-service protection to those classifiedemployees appointed to unclassified positions. See R.C. 1.11("Remedial laws * * * shall be liberally construed in order topromote their object"). These statutory purposes are furtheredby according R.C. 124.1't(D),its plain meaning.

.**

Therefore, based on the manifest language of R.C. 124.11(D)and Ohio Adm.Code 123:1-5-03(C), Asti established a clearlegal right to reinstatement to his Fiscal Officer 4 classifiedposition or a substantially equal position and a clear legal dutyon the part of DYS and its director to so reinstate him. *"*

Id. at ¶22-25; 27, 31, 33.

{174} As previously noted, SPBR stayed the administrative proceedings to give

relator an opportunity to file this mandamus action based upon her claim to fallback rights

under R.C. 124.11(D).

11[75} The Supreme Court of Ohio has set forth three requirements which must be

met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to

the relief prayed for; (2) that respondents are under a clear legal duty to perform the act

requested; and (3) that relator has no plain and adequate remedy in the ordinary course

of law. State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 29.

{176} Summary judgment is appropriate when the movant demonstrates that: (1)

there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a

matter of law; and (3) reasonable minds can come to but one conclusion, and that

28

No. 08AP-56 26

conclusion is adverse to the party against whom the motion for summary judgment is

made, said party being entitled to have the evidence construed most strongly in his favor.

Turner v. Tumer (1993), 67 Ohio St.3d 337, 339-340; Bostic v. Connor (1988), 37 Ohio

St.3d 144, 146; Hariess v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66. The

moving party bears the burden of proving no genuine issue of material fact exists. Mitseff

v. Wheeler (1988), 38 Ohio St.3d 112, 115.

{177} To reiterate the emphasized language of R.C: 124.11(D) quoted above:

* * * A person appointed pursuant to this division to a positionin the unclassified service shall retain the right to resume theposition and status held by the person in the classified serviceimmediately prior to the person's appointment to the positionin the unclassified service, regardless of the number ofpositions the person held in the unclassified service. * * *

{178} Ohio Adm.Code 124-1-02(E) states: "'Appointment means placement of an

employee in a position."

{1[791 Ohio Adm.Code 124-1-02(S) states: "'Positian' means a group of duties

intended to be performed by an employee."

{9[80} The magistrate finds that R.C. 124.11(D) does not grant relator a clear legal

right to reinstatement to her HRA 3 position, nor does it impose upon respondents a clear

legal duty to reinstate relator to the HRA 3 position.

{y[81} It is clear from the undisputed evidence before this court that relator was

never appointed from a position in the classified service to a position in the unclassified

service. Rather, the HRA 3 position was simply redesignated from classified to

unclassified by the appointing authority. Only one position was involved in the

redesignation. Given that the appointing authority did not appoint relator from a position

29

No. 08AP-56 27

in the classified service to a position in the unclassified service, R.C. 124.11(D) has no

application here. Relators circumstances fail to satisfy the statutory requirements under

R.C. 124.11(D).

{182} Some further observations are in order. In this action, there is indeed a

dispute as to whether Connelly told relator that she had failback rights. Relator alleges in

her affidavit that Connelly advised her of a fallback right at the time he instructed her to

prepare the paperwork redesignating the HRA 3 position: to the unclassified service.

Connelly states in his affidavit that he has no recollection of ever telling relator that she

had a fallback right.

11[83} However, the dispute about what Connelly may have told relator about

fallback rights is not a dispute regarding a material fact. Any advisement that Connelly

may have given relator regarding fallback rights is irrelevant to the determination by this

court of whether R.C. 124.11(D) provides a fallback (ght to relator that compels her

reinstatement to the HRA 3 position.

1184} In this action, relator alleges that RSC had a policy that a classified position

would not be redesignated to unclassified unless the position became vacant. Relator

alleges such policy in her affidavit. In his affidavit, Connelly asserts that the policy to

which relator is refer(ng is set forth in an April 1, 2002 memorandum captioned "ADM

2002.15 Management Structure." Connelly asserts that ADM 2002.15 did not prohibit

RSC from redesignating the status of an occupied position from classified to unclassified

if the duties of the position placed it in the unclassified service pursuant to statute.

{185} In the Miller affidavit submitted by relator in support of her motion for

summary judgment and in opposition to respondents' motion, Miller expresses an

30

No. 08AP-56 28

interpretation of ADM 2002.15 that differs from that of Connelly. Miller asserts that ADM

2002.15 does not permit RSC to redesignate an occupied position from classified to

unclassified.

{9[86} The parties' dispute about the interpretation to be given to ADM 2002.15 or

the intent of RSC in adopting such policy is, again, irrelevant to this court's determination

of whether R.C. 124.11(D) provides relator a fallback right requiring reinstatement to her

HRA 3 position.

{187} Accordingly, for all the above reasons, it is the magistrate's decision that

this court deny relator's motion for summary judgment and grant respondents' motion for

summary judgment.

/s/ Kenneth W. MackeKENNETH W. MACKEMAGISTRATE

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assignas error on appeal the court's adoption of any#actual findingor legal conclusion, whether or not specifically designated asa finding of fact or conclusion of law under Civ.R.53(D)(3)(a)(ii), unless the party timely and specificallyobjects to that factual finding or legal conclusion as requiredby Civ.R. 53(D)(3)(b).

31

STATE OF OHIOSTATE PERSONNEL BOARD OF REVIEW

Eydie Glasstetter,

Appellant

V.

Rehabilitation Services Commission,

Appellee

Case No. 06-REM-08-0:,,.

June 18, 2007

Jeannette E. GunnAdministrative Law Judge

PROCEDURAL ORDER

This cause comes on for consideration upon a review of the informationcontained in the record. Appellant was removed from employment with Appellee asan unclassified employee. This Board does not possess subject matterjurisdictionover the removal of an unclassified employee since R.C. 124.03 limits this Board'sjurisdiction to actions concerning classified employees.

In order to determine if this Board does possess jurisdiction over the instantappeal, this Board must review the job duties performed byAppellant to determine ifshe was a classified or an unclassified employee at the time of the removal. If anexamination of the job duties indicates that Appellant's position at the time of herremoval was unclassified, this Board would be without jurisdiction to consider themerits of her removal from service. If an examination of the job duties reveals thatAppellant's position at the time of her removal was classified, then this Board couldconsider whether or not Appellant's removal was effectuated in accordance with thepertinent provisions of the Ohio Revised Code and Ohio Administrative Code, aswell as any arguments regarding waiver and estoppel raised by Appellee.

Entwined within the circumstances of this particular appeal is Appellant'sargument that, regardless of Appellee's stated opposition, her position was returnedto the classified service as a matter of law by her expressed intent to exercise fall-back rights pursuant to R.C. 124.11(D). Appellant asserts that she has a clear,legal right to exercise such rights. A valid exercise of fall-back rights by Appellantcould potentially impact the issue of waiver and estoppel.

This Board held in Asti v. Ohio Department of Youth Services, SPBR CaseNo. 03-MIS-01-0001, and the Supreme Court affirmed in State ex rel. Asti v. OhioDept. of Youth Servs., 107 Ohio St.3d 262, 2005-Ohio-6432, that it lacks jurisdictionto review an apparent denial of a request to exercise fallback rights. Similarly, thisBoard is not authorized by R.C. 124.03 or any other section of the Ohio RevisedCode to make a determination as to the validity of Appellar-it's assertion that herprerogative to exercise f-ier fall-back rights was a clear, legal right.

32

Eydie GlasstetterCase No. 06-REM-O8-0342Page 2

Accordingly, the instant appeal is hereby STAYED in order to allow theparties to pursue resolution of the fall-back rights question through a mandamusaction, after which time this Board shall take any remaining action deemednecessary.

It is so ORDERED.

JEG:

cc: Eydie Glasstetter, Appellant

James E. Melle, Attorney for Appellant

Rehabilitation Services Commission

Joseph N. Rosenthal, Assistant Attorney General

Nicole S. Moss, Assistant Attorney General

Lori Carter, courtesy copy

RECEIVED JUN 2,6 7007

33

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

EYDIE GLASSTETTER,

V.

Plaintiff,

REHABILTfATION SERVICESCOMMISSION, et al.,

Defendants.

Case No. 2:07-cv-125JUDGE SMITHMagistrate Judge King

ORDER

This matter is before the Court on Plaintiff Eydie Glasstetter's Motion for Stay on Ruling of

Summary Judgment (Doc. 55). Plaintiff asserts that her mandamus action was heard by the

Franklin County Court of Appeals on September 23, 2008. A ruling was issued on November 6,

2008. Plaintiff filed a Notice of Appeal with the Ohio Supreme Court on November 17, 2008.

Plaintiff represents that a decision is expected within nine months. Plaintiff asserts that there are

important issues of state law and therefore requests this Court to defer any ruling until the Ohio

Supreme Court has ruled on the issues of state law.

The Court agrees that the Ohio Supreme Court should rule on issues pertaining to state law

and will therefore defer any ruling in this case. This matter is therefore stayed until a final ruling by

the Ohio Supreme Court. Plaintiff must file a written notice with this Court to have the matter

reopened.

The Clerk shall remove Document 55 from the Court's pending motions' list.

IT IS SO ORDERED.

/s/ George C. SmithGEORGE C. SMITH, JUDGEUNITED STATES DISTRICT COURT

34

Case 2:07-cv-00125-GCS-NMK Document 34 Filed 03/28/2008 Page 1 of 20

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

EYDIE GLASSTETTER,

V.

Plaintiff,

REHABILITATION SERVICESCOMMISSION, et al.,

Defendants.

Case No. 2:07-cv-125JUDGE SMITHMagistrate Judge King

OPINION AND ORDER

Plaintiff Eydie Glasstetter ("Plaintiff'), a Caucasian female, brings this employment

action against Defendants Rehabilitation Services Cominission, John M. Connelly, and

Katherine A. Brown ("Defendants"), under Title VII, 42 U.S.C. § 2000e-5. Plaintiff alleges she

was discriminated against and eventually terminated on account of her race and in retaliation for

engaging in protected activities. Plaintiff also asserts claims under 42 U.S.C. § 1983 for denial

of equal protection and due process, as well as supplemental state law claims under O.R.C. §

4112.02. Finally, Plaintiff also seeks a writ of mandamus. Defendants have filed a partial

motion for judgment on the pleadings, addressing both jurisdictional issues and issues of

qualified immunity (Doc. 7). In addition, Plaintiff has filed a motion for partial summary

judgment on her procedural due process claim (Doc. 18). Defendants responded with a cross-

motion for partial summary judgment (Doc. 22). Finally, Plaintiff has not responded to

Defendants' cross motion for partial summary judgment, but instead has filed a motion to defer

briefing and ruling on the parties' cross motions for summary judgment (Doc. 26).

35


J

For the reasons that follow, the Court GRANTS Defendants' partial motion for judgment

on the pleadings (Doc. 7), DENIES as moot Plaintiff s motion for partial summary judgment

(Doc. 18), DENIES as moot Defendants' cross-motion for partial summary judgment (Doc. 22),

and DENIES as moot Plaintiff's motion to defer briefing and ruling on the parties' cross

motions for summary judgment (Doc. 26).

1. FACTUAL BACKGROUND

Plaintiff Eydie Glasstetter began her employment with the state of Ohio on January 6,

1992. She served as a Human Resource Administrator ("HRA") 2, then as a HRA 3, for the

Department of Commerce ("ODC"). On October 10, 1998, Plaintiff transferred to Defendant,

Rehabilitation Services Commission ("RSC") and served in the position of HRA 3 until she was

terminated effective August 21, 2006. As HRA 3, Plaintiff was responsible to "give advice

concerning, and to enforce at RSC, the civil service laws, rules and its policies and the RSC

affirmative action plan and EEO requirements." (Compl. ¶ 14).

Defendant John Connelly is the administrator of RSC and the appointing authority for all

employees of RSC. The RSC HRA 3 position was described as "classified" when posted.

Plaintiff alleges that throughout her employment with Defendant RSC, she was and remained a

classified civil service employee. (Compl. ¶ 13). Defendants argue that Plaintiffs allegation that

she was in the classified civil service is a legal conclusion, and "absent a waiver of classified

status, whether an employee is ìn' the classified service, or a`fiduciary' made unclassified

under O.R.C. § 124.11(A)(9), is determined exclusively by his or her duties, not by the

employer's designation of his or her status." (Defs.' Mot. for Jdt. on Pldgs. at 1; Reply at 1).

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On April 3, 2006, Connelly told Plaintiff that he wanted to "unclassify" Plaintiff's job.

Defendants Brown and Connelly informed Plaintiff that they wanted "consistency" in RSC and

for that reason it was necessary to change Plaintifrs civil service status from classified to

unclassified. (Compl. ¶ 20). Defendants Brown and Connelly told Plaintiff that their request was

not the result of a performance issue. (Compl. ¶ 22). Plaintiff objected stating that the requested

change was contrary to established RSC policy and practice. (Compl. ¶ 23). Plaintiff

complained that RSC's African-American female Counsel, Darla Burns, was not asked to change

her classification. (Compl. ¶ 24).

Defendant Connelly stated that he was offering Plaintiff a choice. She could either

remain classified, and then the individual Defendants would hire another employee over her with

the same classification and duties, and Plaintiff would report to the new hire; or, Plaintiff could

agree to become unclassified, and in that event they would not take the described action.

(Compl. ¶ 25). Plaintiff stated that she would "go unclassified because it was not a risk."

(Compl. ¶ 27). Defendant Connelly responded "that's right because you have fallback rights."

(Compl. ¶ 29). When Plaintiff questioned Defendant Brown as to why Darla Burns was not

changing her classification, Defendant Brown responded that "Burns does not work for me :"

(Compl. ¶¶ 31-32). Defendant Brown also stated to Plaintiff that Defendant Connelly "should

be able to hire his own HR person," and that he could restructure RSC as he desired. He further

stated "It was ridiculous that you are not unclassified because your supervisor is someone who is

unclassified." (Compl. ¶ 40). Plaintiff refused to change her classification unless the order was

put in writing. (Compl. ¶ 44). The next day, Plaintiff received an order in writing from

Defendant Connelly. (Compl. ¶ 46).

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I

In May 2006, Defendant Brown "altered Plaintiff s terms and conditions of employment"

in an unspecified way, which was "partially reversed" on June 2, 2006, and completely reversed

on July 5, 2006. Plaintiff claims these unidentified alterations were "disruptive" and caused

other staff to complain about her, which in turn allegedly contributed to her eventual discharge.

(Compl. ¶ ¶ 51-52, 66, 68).

Plaintiff, after learning she was the "target of a disciplinary investigation," told

Defendant Connelly that she was exercising her "fallback or restoration rights: '(Compl. ¶¶ 56-

57). Defendant Connelly then informed Plaintiff that she did not have fallback rights and that

her request was denied because Plaintiff had not been "appoint[ed]" from a "certified position in

the classified service within that agency," and no "appointment" had occurred "pursuant to this

division." (Compl. ¶ 58, Compl. Ex. 6).

On August 15, 2006, Plaintiff was placed on administrative leave, and on August 21,

2006, she was terminated. (Compl. ¶ 62). Plaintiff appealed her termination to the State

Personnel Board of Review ("SPBR"), asserting that she was a classified employee at the time of

her discharge. (Compl. ¶ 74). Defendants moved to dismiss her appeal, claiming that Plaintiff is

an unclassified employee. (Compl. ¶ 75). The SPBR stayed the appeal "in order to allow the

parties to pursue resolution of the fall-back rights question through a mandamus action ...."

(Pl.'s Memo. in Opp., Exibit 1, SPBR Procedural Order, Doc. 11-2).

On February 20, 2007, Plaintiff filed her Complaint in the instant action (Doc. 2-2). In

her Complaint, Plaintiff claims that Defendants violated the Due Process Clause of the

Fourteenth Amendment as actionable through 42 U.S.C. § 1983 by depriving her of the

following property interests: (1) her classified status and tenure as a classified employee; (2) her

vested statutory rights under O.R.C. § 124.11(D) to fall back to her classified status and

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J

classified position; and (3) her job with RSC and her appeal rights to the SPBR. (Compl. ¶¶ 68,

73, 88). Additionally, the Complaint alleges that Defendants discriminated against Plaintiff

because of her Caucasian race in violation of Title VII and the Equal Protection Clause as

actionable through 42 U.S.C. § 1983 by: ( 1) designating Plaintiff's employment status as

unclassified, when the status of a "similarly situated" African-American, General Counsel Darla

Bums, was designated as classified (Compi. ¶¶ 78-79, 87); and (2) changing the terms and

conditions of Plaintiffs employment in some unspecified way, which caused staff to complain,

which in turn led to her discharge. (Compl. ¶¶ 51-52, 66, 68). Finally, Plaintiff asserts that

Defendants violated Title VII by discharging Plaintiff in retaliation for her complaints of race

discrimination and Ohio law violations. (Compl. ¶¶ 63-65, 67, 80).

On May 29, 2007, Defendants moved for partial judgment on the pleadings on Plaintiffs

due process claims, arguing that they were entitled to judgment on all of Plaintiff's procedural

due process claims, or, at the very least, the individual Defendants were entitled to qualified

immunity (Doc. 7). Defendants' partial motion for judgment on the pleadings does not

challenge any of the Title VII claims. This motion has been fully briefed and is ripe for review.

On November 13, 2007, before any formal discovery had been conducted, Plaintiff filed

a motion for partial summary judgment on her procedural due process claim, arguing that the

RSC violated her pre- and post-termination procedural due process rights (Doc. 18). On

December 13, 2007, Defendants responded by filing a cross-motion for partial summary

judgment on Plaintiffs procedural due process claims (Doc. 22).

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In addition, Plaintiff has filed a motion for partial summary judgment on her procedural

due process claim (Doc. 18). Defendants responded with a cross-motion for partial summary

judgment (Doc. 22). Finally, Plaintiff has not responded to Defendants' cross motion for partial

summary judgment, but instead has filed a motion to defer briefing and ruling on the parties'

cross motions for summary judgment (Doc. 26). Plaintiff seeks to defer briefing in order to

conduct further discovery.

For the reasons set forth in the Discussion Section, the Court finds that the Defendants'

partial motion for judgment on the pleadings is meritorious. The Court's disposition of the

partial motion forjudgment on the pleadings renders moot the other pending motions.

Consequently, those motions-Plaintiff's motion for partial summary judgment (Doc. 18),

Defendants' cross motion for partial summary judgment (Doc. 22), and Plaintiff s motion to

defer briefing (Doc. 26)-are denied as moot.

II. RULE 12(c) JUDGMENT ON THE PLEADINGS STANDARD

Federal Rule of Civil Procedure 12(c) provides that "After the pleadings are closed-but

early enough not to delay trial-a party may move for judgment on the pleadings." It is well

settled that a court must review a Rule 12(c) motion under the same standard applicable to a

Rule 12(b)(6) motion. Lindsay v. Yates, 498 F.3d 434, 438 (6th Cir. 2007). Under the United

States Supreme Court's recent articulation of the standard, aourts must construe the complaint in

favor of Plaintiff, accept the factual allegations contained in the amended complaint as true, and

determine whether Plaintiff s factual allegations plausibly suggest viable claims. See Bell

Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007). The claims must be plausible and

not merely conceivable. Bell Atlantic Corp., 127 S. Ct. at 1974.

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40


The purpose of a motion under either rule is to test the sufficiency of the complaint. A

complaint need not set down in detail all the particulars of a plaintiff's claim. Rule 8(a)(2) of the

Federal Rules of Civil Procedure requires only a "short and plain statement of the claim showing

that the pleader is entitled to relief." Nonetheless, the complaint "must contain either direct or

inferential allegations respecting all the material elements to sustain a recovery under some

viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.

1988). A court must not accept conclusions of law or unwarranted inferences cast in the form of

factual allegations. Id. A court will, however, indulge all reasonable inferences that might be

drawn from the pleading. See Fitzke v. Shappell, 468 F.2d 1072, 1076-77 n.6 (6th Cir. 1972).

Courts should grant motions for judgment on the pleadings when there is an absence of

law or facts to support a claim. Courts may also grant motions for judgment on the pleadings

when, on the face of the complaint, there is an insurmountable bar to relief. Little v. UNUM

Provident Corp., 196 F. Supp. 2d 659, 662 (S.D. Ohio 2002) (citing Rauch v. Day & Night Mfg.

Corp., 576 F.2d 697 (6th Cir. 1978)).

III. DISCUSSION

Defendants argue that they are entitled to judgment on the pleadings in their favor on

Plaintiffls § 1983 due process claim because Plaintiff has failed to prove the existence of a

property interest or the inadequacy of state remedies. (Defs.' Mot. for Jdt. on Pldgs, at 5, 10-11).

Further, Defendants maintain that, at a minimum, the individual Defendants are entitled to

qualified immunity. (Id. at 4). Plaintiff counters that she was deprived of at least three property

interests without either a pre or post- deprivation due process hearing. (Pl.'s Memo. in Opp. to

Defs.' Mot. for Jdt. on Pldgs. at 11). First, Plaintiff claims she was deprived of her classified

status when she was coerced into becoming unclassified. (Id.). Second, Plaintiff claims she was

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deprived of her fallback rights in violation of clearly established law. (Id.). Third, Plaintiff

asserts she was deprived of her rights in O.R.C. §§ 124.34 and 124.11(D)-her rights to

employment and appeal rights-when Defendant Connelly discharged Plaintiff without just

cause and without using the procedures set forth in O.R.C. § 124.34(B). (Id.).

Plaintiff has also alleged a retaliation claim under § 1983. Because the Equal Protection

Clause has no anti-retaliation provision, and because Plaintiff has failed to identify another

independent federal source of rights to be free from retaliation except for Title VII, PlaintifPs §

1983 retaliation claim must be dismissed. See Morris v. Oldham County Fiscal Court, 201 F.3d

784, 794-95 (6th Cir. 2000); Day v. Wayne County Bd. ofAuditors, 749 F.2d 1199, 1204-05 (6th

Cir. 1984); Russell v, Drabik, 24 Fed. Appx. 408 (6th Cir. 2001).

42 U.S.C. § 1983 accords a remedy against "any person" who, under color of state law,

deprives another of rights protected by the United States Constitution:

Every person who, under color of any statute, ordinance, regulation, custom, orusage, of any State or Territory or the District of Columbia, subjects or causes tobe subjected, any citizen of the United States or other person within thejurisdiction thereof to the deprivation of any rights, privileges, or immunitiessecured by the Constitution and laws, shall be liable to the party injured in anaction at law, suit in equity, or other proper proceeding for redress.

The Fourteenth Amendment requires states to afford due process before taking a person's

property.' State law defines property interests. Cleveland Bd of Educ. v. Loudermill, 470 U.S.

532, 538 (1985); Board ofRegents v. Roth, 408 U.S. 564, 577 (1972).

To state a viable procedural due process claim, a plaintiff must prove both the existence

of a property interest and the inadequacy of state remedies. See, e.g., Loudermill, 470 U.S. at

'"[N]or shall any State deprive any person of life, liberty, or property, without dueprocess of law." U.S. Const. 14th Amen. § 1.

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538, 542-43; Jefferson v. Jefferson County Pub. Sch. Sys., 360 F.3d 583, 587-88 (6th Cir. 2004).

The Sixth Circuit, in Collyer v. Darling, 98 F.3d 211, 223 (6th Cir. 1996) cert. denied., 520 U.S.

1267(1997) noted:

In Parratt v. Taylor, 451 U.S. 527, 543-44, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420(1981), the Supreme Court held that when an individual is deprived of a propertyinterest by the state due to the unauthorized failure of the state's agents to followstate procedure, due process is satisfied if the person had access to meaningfulpostdeprivation process. The Court extended Parratt's holding to deprivations ofdue process resulting from intentional but unauthorized acts of state employees inHudson v. Palmer, 468 U.S. 517, 532-33, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393(1984). However, to pursue a § 1983 claim, the plaintiff bears the burden ofdemonstrating that the available state procedures were inadequate to compensatefor the alleged unconstitutional deprivation. See Parratt v. Taylor, 451 U.S. at543, 101 S.Ct. at 1917; Sutton v. Cleveland Board of Education, 958 F.2d 1339,1349 (6th Cir. 1992).

Examining each of Plaintiff's claimed property interests in turn, the Court finds that

Plaintiff has not met her burden to maintain a viable procedural due process claim.

A. Alleged Deprivation of Classified Designation

Plaintiff contends that she was deprived of her property interest in her classified status

when Defendant Connelly "coerced [P]laintiff to become unclassified and ordered her to prepare

the documents to accomplish this task." (Pl.'s Memo. in Opp. to Defs.' Mot. for Jdt. on Pldgs. at

11). Plaintiff asserts that her property interest in her classified status is recognized by "Ohio

law." (Id.). Plaintiff does not identify what "Ohio law" she relies on. Plaintiff further maintains

that Defendants' "failure to give [P]laintiff a pretermination opportunity to be heard before she

was initially coerced into unclassifying herself ... failed to afford [P]laintiff the process that was

due to her under the federal constitution." (Id. at 13).

Defendants argue that there was not an actual change in Plaintiffs status because her

duties did not change. (Defs.' Reply at 4). Instead, Defendants point out that the change was

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only in the designation of her position as "classified." (Id.). Defendants then rely on Treciak v.

State of Ohio, 117 F.3d 1421, * I(6th Cir. 1997) for the proposition that an employee such as

Plaintiff has no property interest in the designation of their position as classified. (Id. at 9-10).

O.R.C. § 124.11 divides Ohio public employment into the classified and unclassified

service. Plaintiff correctly points out that classified employees in the State of Ohio have State-

created property interest in their continued employment which due process protects. Loudermill

470 U.S. at 538-39; Christophel v. Kukulinsky, 61 F.3d 479, 482 (6th Cir. 1995); Collyer v.

Darling, 98 F.3d 211, 223 (6th Cir.1996); O.R.C. § 124.34 (provides that a "classified" civil

servant cannot be removed except for cause). Unclassified State employees, in contrast, are

employed essentially at will. See Christophel, 61 F.3d at 482. Unlike classified employees,

unclassified employees have no property right to continued employment. Id. (citing Vodila v.

Clelland, 836 F.3d 231, 232 (6th Cir 1987)).

Whether an employee is unclassified pursuant to O.R.C. § 124.11(A)(9) is determined by

the employee's actual job duties, not by the employer's designation of the employee's status. In

Yarosh v. Becane, 63 Ohio St.2d 5, 406 N.E.2d 1355 (1980), the Ohio Supreme Court held at ¶ 2

of the syllabus:

2. The State Personnel Board of Review has jurisdiction over appeals fromremovals of public employees if it determines that such employees are inthe classified service, regardless of how they have been designated bytheir appointing authorities.

(Emphasis added). The Yarosh Court explained that whether an employee is exempt because of

a "fiduciary" or "administrative" relationship is determined by the employee's actual job duties

rather than by the designation given to them by their appointing authorities. Thus, classification

status is determined by the statutory definition contained at O.R.C. § 124.11(A)(9), and not how

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the parties list or designate the position. As Defendants point out, to find otherwise could result

in tenure being irrevocably awarded to personal or political favorites by the mere act of

designating a high-ranking fiduciary or policy-making position as "classified."

In the instant case, Plaintiff was ordered to change her designation from classified to

unclassified in order to correct the listed status. Her duties, however, remained the same before

and after the re-designation. Therefore, Plaintiff was either legally in the classified service both

before and after her status re-designation, or legally in the unclassified service both before and

after the status re-designation. The only change, then, was in Plaintiffs designation. As set

forth above; Plaintiff contends she had a property right in the designation of her position.

In Treciak v. State of Ohio, 117 F.3d 1421, * 1(6th Cir. 1997), the Sixth Circuit was

asked to consider the same issue now before this Court-whether "the State created a property

interest in continued classified service, and as such, guaranteed Plaintiffs notice and a hearing

before correcting their status from classified to unclassified." In Treciak, the positions of two

highly-placed employees, designated as "classified" at the end of the Celeste Administration,

were re-designated as "unclassified" by the incoming Voinovich Administration. The Treciak

plaintiffs claimed that the re-designation of their status, without the benefit of a pre-deprivation

hearing, violated their due process rights. The Sixth Circuit held the defendants were entitled to

qualified immunity, which was as far as the Court had to go to resolve the Treciak plaintiffs'

claim. Examining the existing case law, the Treciak Court indicated that case law does not

support the conclusion that the plaintiffs had property rights in the continued classified service:

Not only is there no case law to support Plaintiffs' position, but the precedent thatdoes exist supports the conclusion that Plaintiffs do not have a property interest incontinued classified service. See Esselburne v. Ohio Dep't ofAgric., 504 N.E.2d

434, 443 (Ohio Ct.App.1985) (noting that a classified position may be changed toan unclassified position if it had been erroneously listed as classified under

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O.R.C. 124.11(A)(9)); Shearer v. Cuyahoga County Hosp., 516 N.E.2d 1287,1288 (Ohio Ct.App.1986) ("Loudermill does not stand for the proposition that the

);appellant has a property right in continued status as a classified civil servant......Lawrence v. Edwin Shaw Hosp., 517 N.E.2d 984, 989 (Ohio Ct.App.1986)("There is no language to be found in R.C. 124.11 which would support thecontention that appellants had a vested right to a perpetual status as classifiedcivil service employees."). Moreover, the Supreme Court recently had theopportunity to expand the coverage of Loudermill protections and expresslyrefused to do so. Gilbert v. Homar, 520 U.S. 924 (1997) (holding that a tenuredpublic employee in a position of trust who is charged with a felony has no dueprocess right to a hearing before being suspended without pay).

Treciak, 117 F.3d 1421, at *2, n.2.

This Court agrees with Treciak, and the cases relied upon by Treciak, which indicate

there is no property right in the designation of a position as classified. This conclusion is

consistent with Ohio civil service law, which provides that a designation of "classified" or

"unclassified" status is merely informational. Accordingly, Plaintiff has failed to state a

procedural due process claim with respect to her allegations that she was "coerced" into

becoming unclassified.

B. Alleged Deprivation of Failback Rights

Plaintiff argues she was deprived of a property interest when she "exercised her fallback

rights and [Defendant] Connelly, in violation of clearly established law, refused to honor her

fallback rights." (Pl.'s Memo. in Opp. to Defs.' Mot. for Jdt. on Pldgs. at 11). Plaintiff explains

that Defendant Connelly's refusal divested Plaintiff "of the `vested' rights specified in R.C.

124.1 I(D) to resume her classified status and position. (Id.).

Defendant counters that Plaintiff "has no `property right' in her `fallback rights' because

the `fallback' statute, by its very terms, did not apply to her HRA 3 position." (Defs.' Mot. for

Jdt. on Pldgs. at 10).

At the time Glasstetter's claims arose, O.R.C. § 124.11(D) provided, in relevant part:

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An appointing authority ... may appoint a person who holds a certified position inthe classified service within the appointing authority's agency to a position in the

unclassified service within that agency. A person appointed pursuant to thisdivision to a position in the unclass fed service shall retain the right to resumethe position and status held by the person in the classified service immediatelyprior to the person's appointment to the position in the unclassified service,regardless of the number of positions the person held in the unclassified service.

I

(Emphasis added).

O.A.C. § 124-1-02(E) defines "appointment" as "placement of an employee in a

position.sz 16 O.A.C. §§ 123:1-47-01(A)(62), and 124-1-02(S) defines "position" as "a group of

duties intended to be performed by an employee,"

In the instant case, Plaintiff does not allege that she was ever "appointed" to any

"position" other than her original position of Human Resource Administrator 3("IIRA 3 ") when

she arrived at Ohio Rehabilitation Services Commission ("RSC"). Instead, she alleges in her

Complaint that she transferred to RSC where she remained in the same "position" as HRA 3

from October 10, 1998, until she was terminated effective August 21, 2006. (Compl. ¶ 2).

Plaintiff alleges she was ordered to re-designate the status of her same HRA 3 position

from "classified" to "unclassified." This is different from an "appointment" "to a position"

under O.R.C. § 124.11(D). The use of the word "reinstatement" in the statute further supports

the implication that the position occupied and the position "fallen back" to must be separate and

distinct. "Reinstatement" means "the act of returning a person to the same appointing authority

... following a period of separation or a leave of absence, retaining seniority and status,"

O.A.C. § 123:1-47-01(A)(76) (emphasis added). Plaintiff was never "separated" from her HRA 3

z O.R.C. § 124.01(D) defines "appointing authority" as the person "having the power ofappointment to, or removal from, positions." "Appointment," therefore, is the act ofassigning an employee to a discrete "position." See also, O.R.C. § 124.27 and O.A.C.Chapter 123:1-17, describing the methods of "appointment" to fill a "position."

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position, by promotion or otherwise, until she was discharged. Thus, there was no position for

her to "fall back" to, other than the one she already occupied.

Beoause the "fallback" statute applies only to an "appointinent" from one position to

another within the same agency, events before Plaintiff arrived at RSC are irrelevant. Moreover,

when Plaintiff was appointed to her HRA 3 position, O.R.C. § 124.11(D) was not yet in

effect-there was no such division within O.R.C. § 124.11. Therefore, Plaintiff could not have

been "appointed" to her RSC position "pursuant to this division" as is required to have

"fallback" rights.

Plaintiff's contentions are also flawed from a practical perspective. If, as Plaintiff

contends, "fallback rights" applied not only to an "appointment" to a different position, but also

to a status re-designation of the same position, the effect would be to make any erroneous

designation as "classified" a permanent and binding one. Once an employee's status was

described as "classified," a public employer could never effectively "correct" the

mis-designation, because an employee could always "fall back" to a classified status in the very

same position the employee had always occupied. An outgoing administration could hamstring

the incoming one simply by designating all its political appointees as "classified." When the

incoming administration attempted to replace them, the appointees could claim to "fall back" to

classified status in the very same high-ranking policy-making jobs they had occupied moments

before.

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Plaintiff also argues that Defendant Connelly's alleged comment, indicating that Plaintiff

had "fallback rights," creates a property interest. (Pl.'s Memo. in Opp. to Defs.' Mot. for Jdt. on

Pldgs. at 12, 16).'

This argument also fails. As Plaintiff concedes, "[p]ublic employees hold their positions

ex lege." (Pl.'s Memo. in Opp. to Defs.' Mot. for Jdt. on Pldgs. at 10 (citing Estabrook v. City of

Dayton, 1997 WL 1764764, *5 (S.D. Ohio 1997)). See also, Fuldauer v. City of Cleveland, 32

Ohio St.2d 114 (1973); State ex rel. Gordon v. Barthalow, 150 Ohio St. 499 (1948); and Cook v.

Maxwell, 57 Ohio App.3d 131, 134 (Hamilton 1989), for the proposition that Ohio civil servants

are "employed as a matter of law and not as a matter of contract." Not only is Plaintiff's

argument inconsistent with this principle, but it too is flawed from a practical perspective. If

Defendant Connelly could give Plaintiff "fallback rights" simply by acknowledging that they

existed, then an outgoing administration could do the same, preventing the newly elected

administration from replacing even the highest-ranking political appointees.

Plaintiff, in her Memorandum in Opposition to Defendants' Motion for Judgment on the

Pleadings, repeatedly seeks to rely on the Ohio Supreme Court's decision in State ex rel. Asti v.

Dep't of Youth Servs., 107 Ohio St.3d 262 (2005). (Pl.'s Memo. in Opp. to Defs.' Mot. for Jdt.

on Pldgs. at 2, 6-8, 12, 16-17). Plaintiff s reliance is misplaced. The issue in Asti was not who

has "fallback" rights, but rather when they can be exercised. The Asti plaintiff sought to "fall

back" to his prior classified position after accepting multiple, successive unclassified positions.

Id. at 266. The Supreme Court held that, in the absence of any clear statutory limitation on when

'Plaintiff also relies on Ex. 3 to the Complaint as such an "admission." (Pl.'s Memo. inOpp. to Defs.' Mot. for Jdt. on Pldgs. at 7). The acknowledgment form simply states that

Plaintiff "may be entitled to `fall-back' rights," not that she does have them.

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the employee could demand to "fall back," an employee who had fallback rights could exercise

their right to begin his previous classified position again, and that right was "not restricted to any

particular time or event"" Id. Thus, Asti is inapplicable to the instant case because as this Court

has explained, Plaintiff had no fallback rights to begin with.

Plaintiff also seeks to rely on Leibson v. Ohio Dept. ofMental Retardation & Dev.

Disabilities, 84 Ohio App.3d 751 (1992). Again, Plaintiff's reliance is misplaced.

That case involved a predecessor statute applicable only to the Ohio Department of Mental

Retardation and Developmental Disabilities, O.R.C. § 5123.08, that was otherwise similar to

O.R.C. § 124.11(D). The Leibson plaintiff was promoted from one classified position to another,

separate, unclassified position, Health Administrator 2. After several re-assignments, the

Leibson Plaintiff's HA 2 position was to be abolished, but his demand for a fallback position was

ignored. Id. at 754-56. In the instant case, Defendants admit that if Plaintiff had been promoted

or otherwise "appointed" from a "classified" position to an unclassified position, she would have

had the right to "fall back" to the prior, separate and distinct position she had previously

occupied. But Plaintiff never moved from one position to another, and there was no separate,

previously-occupied position to which Plaintiff could "fall back." Consequently, as this Court

has previously explained, Plaintiff had no fallback rights.

°Shortly afterAsti was decided, the General Assembly amended O.R.C. § 124.11(D) tocorrect the unworkable and unintended result, although the amendment had not takeneffect when Plaintiff was discharged. The amended statute inserts a sentence providing,"An employee's right to resume a position in the classified service may only be exercisedwhen an appointing authority demotes the employee to a pay range lower than theemployee's current pay range or revokes the employee's appointment to the unclassifiedservice," and clarifies how fallback rights operate when an employee is discharged forcause.

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II

Accordingly, Plaintiff has failed to state a procedural due process claim with respect to

her allegations that Defendant Connelly refused to honor her "fallback rights."

C. Alleged Deprivation of Rights to Employment and Appeal Rights

Plaintiff asserts she was deprived of her rights to employment and appeal rights when

Defendant Connelly discharged her withoutjust cause and without using the procedures set forth

in O.R.C. § 124.34(B). (Pl.'s Memo. in Opp. to Defs.' Mot. for Jdt. on Pldgs. at 11). Defendants

dispute that Plaintiff had a property interest in her continued employment. (Defs.'Reply at 16-17,

n.13). Moreover, Defendants argue that even if Glasstetter had property rights in continued

employment in her HRA 3 position, Ohio provided adequate due process. (Id. at 14). Finally,

Defendants contend that Plaintiff suffered no deprivation of any property rights in an appeal. (Id.

at 17).

1. Alleged Deprivation of Rights to Employment

As set forth above, to state a viable procedural due process claim, a plaintiff must prove

both the existence of a property interest and the inadequacy of state remedies. See, e.g.,

Loudermill, 470 U.S. at 538, 542-43; Jefferson v. Jefferson County Pub. Sch. Sys., 360 F.3d 583,

587-88 (6th Cir. 2004). And, it is undisputed that classified employees in the State of Ohio have

State-created property interest in their continued employment which due process protects.

Loudermill 470 U.S. at 538-39; Christophel v. Kukulinsky, 61 F.3d 479, 482 (6th Cir. 1995);

Collyer v. Darling, 98 F.3d 211, 223 (6th Cir.1996); O.R.C. § 124.34. In Loudermill, the

Supreme Court held that a classified civil service with tenure rights was entitled to ( 1) notice of

the "charges" against her, (2) an explanation of the employer's evidence, and (3) an opportunity

to respond before being removed for disciplinary reasons. 470 U.S. at 546. All that was required

was notice of the proposed action and "[t]he opportunity to present reasons, either in person or in

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writing, why the proposed action should not be taken." Id.; see also Farhat v. Jopke, 370 F.3d

580, 595-96 (6th Cir. 2004).

Defendants argue that PlaintifYs Complaint does not adequately raise any pre-

termination due process theory 5(Defs.' Reply at 15). The Court agrees. In fact, there is not a

single factual allegation in Plaintiff's Complaint regarding the extent to which Plaintiff was or

was not afforded notice of the charges against her, or whether Plaintiff was or was not given the

opportunity to respond to the charges prior to her termination. Instead, there are only vague

references in the Complaint to Plaintiff's "due process rights." (See Complaint 1186, 88).

"When a complaint omits facts that, if they existed, would clearly dominate the case, it seems

fair to assume those facts do not exist." Scheid, 859F.2d at 437. In the instant case, Plaintiff's

vague, conclusory allegations of "due process rights," which amount to legal conclusions, do not

satisfy the pleading requirements for a pre-deprivation procedural due process claim.

Regardless, as Defendants point out, even if such a claim had been sufficiently pled, and

RSC had not complied with Loudermill, the individual Defendants would be entitled to qualified

immunity. (Defs.' Reply at 16-17, n.13). "[G]overnment officials performing discretionary

functions are shielded from liability through `qualified immunity' if they violate an individual's

constitutional rights, but the violated right was not `clearly established' at the time of the

official's actions. Marvin v. City of Taylor, 509 F.3d 234, 243 (6th Cir. 2007). Though the Court

declines to pass on whether Plaintiff's HRA 3 job duties placed her in the classified service, the

SDefendants have sought to introduce evidence in the form of exhibits to support theirposition that even if Plaintiff was classified, she did in fact receive adequate pre-deprivation process. (See Defs.' Reply at 15). That evidence will not be considered atthis stage in the litigation because the purpose of a Rule 12(c) motion for judgment onthe pleadings it to test the sufficiency of the complaint.

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Case 2:07-cv-00125-GCS-NMK Document 34 Filed 03l28/2008 Page 19 of 20

Court acknowledges that Defendants have put forth valid arguments such that at a minimum,

Plaintiff s entitlement to classified status (and consequent rights to pre-deprivation process) is

debatable 6 (Id.).

Plaintiff has also failed to state a post-deprivation procedural due process claim. Plaintiff

has a post-deprivation remedy by way of an appeal to the State Personnel Board of Review

("SPBR"). State ex rel. Weiss v. Industrial Comm'n, 65 Ohio St.3d 470, 475 (1992) (when an

employee appeals an adverse action, the SPBR has jurisdiction to determine its own jurisdiction,

by deciding whether appellant's duties place her within the classified civil service). Plaintiff has

exercised this remedy, and this remedy has been found adequate by the Loudermill Court. 470

U.S. at 546-47.

2. Alleged Deprivation to Rights of Appeal

Plaintiff cannot allege a deprivation of her right to appeal to the SPBR because she has

filed an appeal, and that appeal is still pending. (Pl.'s Memo. in Opp. to Defs.' Mot, for Jdt. on

°Defendants argue:

Here, at least three Ohio appellate courts have held that personsserving in positions such as Glasstetter's are unclassified by operation ofO.R.C. § 124.1 1(A)(9). Olander v. Ohio Environmental ProtectionAgency, 134 Ohio App.3d 723, 732 N.E.2d 400 ( Franklin 1999); Robinsonv. Ohio Dep't oflnsurance, No. 94APE07-1090, 1995 Ohio App. LEXIS2177 (Franklin App. May 29, 1995); Miller v. Ohio Dep't ofTransportation, No. 9-CA-84, 1984 Ohio App. LEXIS 11099 (LickingApp. 1984). Glasstetter has cited no contrary decision.

(Defs.' Reply at 16-17, n.13).

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Pldgs. at Ex. 2), The SPBR will ultimately determine whether Plaintiff was unlawfully

discharged from a classified position.'

Accordingly, Plaintiff has failed to state a procedural due process claim with respect to

her allegations that she was deprived of her rights to employment and appeal rights.

IV. DISPOSITION

For all of the foregoing reasons, the Court GRANTS Defendants' partial motion for

judgment on the pleadings (Doe. 7), DENIES as moot Plaintiffls motion for partial summary

judgment (Doc. 18), DENIES as moot Defendants' cross-motion for partial summary judgment

(Doc. 22), and DENIES as moot Plaintiff's motion to defer briefing and ruling on the parties'

cross motions for summary judgment (Doc. 26).

The Clerk shall remove Documents 7, 18, 22, and 26 from the Court's pending motions

IT IS SO ORDERED.

/s/Gearge C. SmithGEORGE C. SMITH, JUDGEUNITED STATES DISTRICT COURT

'The appeal is currently stayed because Plaintiff chose to bring a fallback rights appealbefore the SPBR even though the SPBR lacks jurisdiction to review fallback claims.(Pl.'s Memo. in Opp. to Defs.' Mot. for Jdt. on Pldgs. at Ex. 2).

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