Brady v. Youngstown State Univ. , 2022 Ohio 353 ( 2022 )

[Cite as Brady v. Youngstown State Univ., 2022-Ohio-353.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Andre Brady, :
Appellant-Appellant, :
No. 20AP-444
v. : (C.P.C. No.18CV-9030)
Youngstown State University, : (REGULAR CALENDAR)
Appellee-Appellee. :
D E C I S I O N
Rendered on February 8, 2022
On brief: Renny J. Tyson Co., LPA, and Renny J. Tyson, for
appellant. Argued: Renny J. Tyson.
On brief: Dave Yost, Attorney General, Joseph N.
Rosenthal, and Devon J. Alexander, for appellee.
Argued: Joseph N. Rosenthal.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Appellant, Andre Brady, appeals from a judgment of the Franklin County
Court of Common Pleas dismissing appellant's R.C. 119.12 administrative appeal of an
order from the State Personnel Board of Review ("SPBR") for lack of subject-matter
jurisdiction. Because we agree that the lower court lacked subject-matter jurisdiction over
appellant's administrative appeal, we affirm.
No. 20AP-444 2
FACTUAL AND PROCEDURAL HISTORY
{¶ 2} The facts in this case are largely undisputed. Appellant was employed by
appellee, Youngstown State University, in the classified position of "Sales Manager 3,"
working in the university bookstore. On May 20, 2016, appellee announced its intention,
for reasons of economy, to outsource its bookstore operation to Barnes and Noble College,
which would result in the abolishment of several bookstore positions and the layoff of the
employees occupying those positions, including appellant. On May 20, 2016, appellee
notified appellant that his position had been abolished and that he was being laid off. This
notification also indicated that the management of the university bookstore would transfer
to Barnes and Noble College effective June 1, 2016. Appellant appealed the abolishment of
his position and his resulting layoff to SPBR.
{¶ 3} On December 14, 2016, an administrative law judge ("ALJ") conducted a
hearing on appellant's appeal. In a report and recommendation issued on March 17, 2017,
the ALJ found that appellee had demonstrated adequate justification for abolishing
appellant's position for reasons of economy. The ALJ recommended that SPBR affirm
appellee's abolishment of appellant's position and his resulting layoff. Appellant filed
objections to the ALJ's report and recommendation.
{¶ 4} On August 16, 2017, SPBR heard oral argument on appellant's appeal. One
year later, SPBR had not yet ruled on appellant's objections to the ALJ's report and
recommendation.
{¶ 5} On August 16, 2018, appellee notified appellant by letter that, effective
August 27, 2018, it was rescinding the abolishment of appellant's position, and it further
directed appellant to return to work on August 27, 2018. Appellee also informed appellant
that, because it was no longer operating the bookstore, appellant's position would be
abolished for lack of work upon his return.
{¶ 6} On August 20, 2018, appellee filed a "notice of rescission" with SPBR
indicating that it had rescinded its abolishment of the Sales Manager 3 position previously
held by appellant. The notice of rescission further indicated that "[t]he back-pay that arose
as a result of the rescission will be calculated and processed as soon as Brady provides
Appellee with information regarding mitigating activities between the time of his
termination and August 27, 2018—the effective date of the rescission."
No. 20AP-444 3
{¶ 7} On August 27, 2018, appellant reported for work and appellee attempted to
gather documents from him so it could calculate the amount of backpay appellant was
owed. However, appellant declined to provide documentation showing his earnings
between the date of his termination and his return to work on August 27, 2018.
{¶ 8} Because there was no place for appellant to perform the duties of a Sales
Manager 3, appellee placed him on paid administrative leave pending the abolishment of
his position, for lack of work, which would become effective on September 11, 2018.
{¶ 9} Appellee issued paychecks to appellant for his full earnable wages between
August 27, 2018 (the date of his return to work) and September 11, 2018 (the effective date
of the position abolishment for lack of work), but he did not cash the paychecks.
{¶ 10} Appellee notified appellant that, due to a lack of work, it was necessary to
abolish his position, and therefore, he would be laid off. Appellee notified appellant that he
had the right to appeal the position abolishment and his resulting lay off to SPBR. The
record before us does not indicate whether appellant appealed the second abolishment of
his position, and if so, the outcome of that appeal. On October 17, 2018, SPBR issued an
order adopting appellee's rescission of the abolishment of appellant's position and his
reinstatement and dismissed appellant's appeal. Appellant then filed an appeal with the
Franklin County Court of Common Pleas.
{¶ 11} In a decision and judgment dated August 25, 2020, the trial court found that
SPBR's adoption of appellee's rescission did not constitute an "adjudication" as defined in
R.C. 119.01(D), and therefore, that order was not appealable under R.C. 119.12(B).
Consequently, the trial court dismissed the case for lack of subject-matter jurisdiction.
Appellant appeals, assigning the following errors:
[1.] The trial court erred in concluding that the State Personnel
Board of Review Order was a ministerial act and not an
adjudication subject to appeal pursuant to Ohio Revised Code
§ 119.12.
[2.] The trial court erred in upholding the State Personnel
Board of Review's adoption of the rescission of the abolishment
of the Sales Manager 3 position previously held by appellant
wherein the rescission was not a truthful, authentic or legal
rescission.
No. 20AP-444 4
[3.] The trial court erred by adopting the SPBR decision
accepting the alleged rescission of the abolishment of the Sales
Manager 3 position when the decision was contrary to the
manifest weight of the evidence and was not supported by
reliable, probative and substantial evidence.
Legal Analysis
{¶ 12} In his first assignment of error, appellant alleges the trial court erred in
holding that SPBR's administrative order was a ministerial act and not an adjudication
subject to appeal under R.C. 119.12. Therefore, appellant contends the trial court erred
when it dismissed the administrative appeal for lack of subject-matter jurisdiction.
{¶ 13} An appellate court reviews de novo a common pleas court's dismissal for lack
of subject-matter jurisdiction. Univ. of Toledo v. Ohio State Emp. Relations Bd., 10th Dist.
No. 11AP-834, 2012-Ohio-2364, ¶ 8; Benevolent Emps. v. State Emp. Relations Bd., 10th
Dist. No. 12AP-377, 2012-Ohio-5905, ¶ 7.
{¶ 14} A court of common pleas may review proceedings of administrative agencies
and officers only to the extent granted by law. AT&T Communications of Ohio, Inc. v.
Lynch, 132 Ohio St.3d 92, 2012-Ohio-1975, ¶ 8, citing Section 4(B), Article IV, Ohio
Constitution. Thus, a court of common pleas may only review actions of administrative
agencies when some specific statutory authority grants the court jurisdiction. Benevolent
at ¶ 8, citing Total Office Prods. v. Dept. of Adm. Servs., 10th Dist. No. 05AP-955, 2006-
Ohio-3313, ¶ 12, citing Abt v. Ohio Expositions Comm., 110 Ohio App.3d 696, 699 (10th
Dist.1996).
{¶ 15} Here, appellant, a classified employee, was laid off from his Sales Manager 3
position due to appellee's abolishment of his position for alleged economic reasons. R.C.
124.328 grants a classified employee the right to appeal a layoff to SPBR. This statute
further provides for an appeal of SPBR decisions to the court of common pleas "in
accordance with section 119.12 of the revised code." Id. In turn, R.C. 119.12 provides that
subject to certain exceptions not involved here, any party adversely affected by an order of
an agency issued pursuant to an adjudication may appeal to the Franklin County Court of
Common Pleas. SPBR adjudications are generally subject to judicial review pursuant to
R.C. 119.12. South Community, Inc. v. State Emp. Relations Bd., 38 Ohio St.3d 224, 226
(1988).
No. 20AP-444 5
{¶ 16} Appellee argued below that appellant's appeal was moot because appellee
rescinded the abolishment of appellant's Sales Manager 3 position and reinstated appellant
to his former position with an offer of backpay due. Therefore, appellee argued that
appellant had received the relief he sought in his appeal to SPBR. Because there was
reliable, probative, and substantial evidence supporting these facts, appellee argued that
the SPBR did not err in dismissing the appeal.
{¶ 17} Appellant argued below that appellee's rescission of its abolishment of
appellant's position and its reinstatement of appellant to his former position with
applicable backpay "was not a true, authentic, or legal rescission" because upon appellant's
return to work, appellee again abolished appellant's position. Essentially, appellant
contends that appellee rescinded its first abolishment of the Sales Manager 3 position
because it recognized that its purported reason for the abolishment—"economic reasons"—
was not defensible. According to appellant, the rescission allowed appellee to abandon its
defense of the first position abolishment without SPBR determining the legality of that
action, knowing that upon appellant's return to his position of employment, it intended to
abolish the position again based on a different reason ("lack of work"). Because appellant
contested the legality of appellee's rescission, appellant argued that SPBR erred in
dismissing his appeal.
{¶ 18} The lower court did not address the merits of these arguments. Rather, the
lower court focused on whether SPBR's order constituted an "adjudication." The lower
court noted that R.C. 119.12(B) provides in relevant part that "[a]ny party adversely affected
by any order of an agency issued pursuant to any other adjudication may appeal to the court
of common pleas of Franklin county." R.C. 119.01(D) defines "adjudication" as "the
determination by the highest or ultimate authority of an agency of the rights, duties,
privileges, benefits, or legal relationships of a specified person, but does not include the
issuance of a license in response to an application * * *, nor other acts of a ministerial
nature." The lower court held that SPBR's order adopting appellee's rescission of its
position abolishment was a ministerial act and not an adjudication subject to appeal
pursuant to R.C. 119.12(B). Therefore, the lower court concluded that it lacked jurisdiction
to review SPBR's order. We agree.
No. 20AP-444 6
{¶ 19} The appeal before SPBR involved a challenge to appellant's layoff due to
appellee's abolishment of his Sales Manager 3 position. Appellant contested the legitimacy
of the ground appellee relied on ("economic reasons") for the position abolishment and
layoff. This issue became moot when appellee rescinded the position abolishment, ordered
appellant to return to work, and offered him all backpay due. SPBR's adoption of appellee's
rescission was not an adjudication as defined in R.C. 119.01(D) because SPBR did not
determine the "rights, duties, privileges, benefits or legal relations" of the parties with
respect to the issue that was before it. SPBR's order did not address the merits of the appeal.
Appellant concedes that SPBR did not comment on or issue a decision regarding the validity
of appellee's stated reason for the abolishment of appellant's position and resulting layoff.
(Appellant's brief at 4, 18-20.) Without an adjudication, the lower court lacked jurisdiction
to review SPBR's order under R.C. 119.12(B).
{¶ 20} In arguing that SPBR's order is an adjudication for purposes of R.C.
119.12(B), appellant relies heavily on Benevolent, 10th Dist. No. 12AP-377, 2012-Ohio-
5905. That reliance is misplaced. The administrative order at issue in Benevolent (a
directive of the State Employment Relations Board) was found to be an adjudication for
purposes of the lower court's subject-matter jurisdiction because it specifically determined
the rights of certain employees within a bargaining unit to proceed with conciliation for a
collective bargaining agreement. As noted above, SPBR made no determination of rights
in the case at bar.1
{¶ 21} Moreover, appellant was not "adversely affected" by SPBR's order. The
remedy appellant sought in his appeal to SPBR was to be restored to his Sales Manager 3
position and to receive all backpay to which he was entitled. (Appellant's lower court brief
at 15.) This is precisely the position appellant was restored to following appellee's recession
of the position abolishment and its reinstatement of appellant to his former position with
any backpay due. Although appellee restored appellant to a position that only existed on
paper, this is the same remedy appellant would have received if his appeal had been
1 Appellant also cites Youngstown Sheet & Tube Co. v. Williams, 10th Dist. No. 76AP-181, 1976 Ohio App.
LEXIS 7565 (Oct. 26, 1976) in support of its contention that the lower court had jurisdiction to review
SPBR's order. Youngstown does not support appellant's argument. In Youngstown, the court simply
recognized a permit applicant's right to an adjudicatory hearing before the director of the Ohio
Environmental Protection Agency following the director's withdrawal of several proposed permits.
Youngstown did not involve the issue of subject-matter jurisdiction.
No. 20AP-444 7
successful because appellee was no longer operating a bookstore and it had no other Sales
Manager 3 positions. In addition, because the position abolishment and appellant's layoff
were rescinded, the basis for appellant's appeal to SPBR pursuant to R.C. 124.328 was
eliminated, and therefore, SPBR's dismissal of his appeal did not adversely affect him. In
essence, appellant had already received the remedy he sought in the appeal.
{¶ 22} An appellant must be "adversely affected" by an agency's decision before he
may appeal to the court under R.C. 119.12. Rose v. Ohio Dept. of Job & Family Servs., 160
Ohio App.3d 581, 2005-Ohio-1804, ¶ 11 (12th Dist.). When the "adversely affected"
requirement is not met, a common pleas court lacks jurisdiction over the appeal. Id. at ¶ 2;
Ward v. Ohio Dept. of Job & Family Servs., 9th Dist. No. 27621, 2015-Ohio-5539, ¶ 22. An
appellant is "adversely affected" by an agency decision, and can appeal under R.C. 119.12,
when his " 'rights, privileges, benefits, or pecuniary interests are the subject of the
administrative adjudication' " and he " 'has been, or likely will be, injured by the
administrative order.' " Ward at ¶ 23, quoting Rose at ¶ 11. Here, SPBR's adoption of
appellee's rescission of the position abolishment and layoff, and SPBR's dismissal of the
appeal, did not adversely affect appellant because the rescission restored him to his former
position with any backpay due. Therefore, the lower court lacked subject-matter
jurisdiction to hear the appeal under R.C. 119.12(B).
{¶ 23} We recognize that after appellee restored appellant to his former position,
appellee quickly abolished that position due to lack of work. That second abolishment for
lack of work resulted in appellee laying off appellant again. Appellant had the right to
appeal his second layoff to SPBR. In such an appeal, appellant could challenge appellee's
actions and motives, including the impact, if any, of any labor agreement. Again, the record
before us does not indicate whether appellant appealed the second position abolishment
and layoff.2 Regardless, the second position abolishment and layoff are not relevant in
determining whether the lower court had subject-matter jurisdiction to hear an appeal of
SPBR's October 17, 2018 order.
2 Appellee represented in its brief to this court that appellant did appeal the September 11, 2018 position
abolishment to SPBR on September 20, 2018. Appellee states that "by Order of the Board dated January 11,
2019, the abolishment was affirmed 'due to a demonstrated lack of work and due to Appellee's
demonstrated compliance with the applicable procedural requirements set for [sic] in R.C. 124.321 through
124.327.' " (Appellee's brief at 3.)
No. 20AP-444 8
{¶ 24} For these reasons, we overrule appellant's first assignment of error.
{¶ 25} Appellant's second and third assignments of error address the merits of
SPBR's adoption of the notice of rescission and dismissal of the case. Because we have
determined the lower court did not err in dismissing the administrative appeal for lack of
subject-matter jurisdiction, appellant's second and third assignments of error are moot.
Therefore, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER, P.J., concurs.
JAMISON, J., dissents.
JAMISON, J., dissenting.
{¶ 26} In this case, I conclude that the majority opinion is incorrect. I conclude that
SPBR had to do more than a ministerial act when it incorporated by reference the rescission
and adopted the rescission and dismissed appellant's appeal. Therefore, I respectfully
dissent.
{¶ 27} The operative facts as recited by the majority are correct. A hearing was held
before SPBR on August 16, 2017 where appellant submitted evidence. SPBR did not rule
upon the evidence. On August 16, 2018, appellee informed appellant that the abolishment
of his position as Sales Manager 3, previously held at YSU, was being rescinded. Appellant
was directed to return to work on August 27, 2018. The same letter also informs appellant,
"that since we are no longer operating the YSU Bookstore, your position will be abolished
for lack of work upon your return." (YSU Exhibit 1.)
{¶ 28} The majority relies upon the definition of adjudication in R.C. 119.01 which
reads in pertinent part:
"Adjudication" means the determination by the highest or
ultimate authority of an agency of the rights, duties, privileges,
benefits, or legal relationships of a specified person, but does
not include the issuance of a license in response to an
application with respect to which no question is raised, nor
other acts of a ministerial nature.
R.C. 119.01(D).
No. 20AP-444 9
{¶ 29} Appellee would ask this court to discard common sense to find that the
adoption of the rescission was not an adjudication. First, appellee is in no position through
filing a "notice of rescission" to terminate the case. A notice of dismissal can be done by a
petitioner or plaintiff not a respondent or defendant. See Civ.R. 41. Upon receipt of the
notice of rescission, SPBR began a procedural review process. Appellant filed a motion to
extend time to file a response to the notice of rescission. On August 29, 2018, SPBR issued
a procedural order extending the deadline for appellant to reply to appellee's notice of
rescission. On September 18, 2018, appellant filed a response to appellee's notice of
rescission arguing that it violated the current terms of the labor agreement between
appellee and Association of Classified Employees. SPBR could not have performed a
ministerial action if they conducted a review of the notice of rescission, the agreement
between appellee and Association of Classified Employees, and the response filed by
appellant prior to reaching a decision. Lastly, SPBR adjudicated the notice of rescission as
a motion on the merits when it adopted and incorporated the notice of rescission into its
order.
{¶ 30} Ohio Adm.Code 124-11-07 reads in pertinent part:
(A) All motions shall state, with particularity, both the relief
sought and the basis for such relief.
(1) All motions, and any supporting documentation shall be
served on the opposing party.
(2) Motions to dismiss an appeal shall be supported by
affidavits, made on personal knowledge, setting forth facts as
would be admissible in evidence. Affidavits shall show
affirmatively that the affiant is competent to testify to the
matters stated therein. Sworn or certified copies of all papers
referred to in an affidavit shall be attached thereto. When a
motion is made and supported as provided in this rule, an
adverse party may not rest upon mere allegations or denials.
An adverse party's response, by affidavit or otherwise, shall
set forth specific facts showing there is a genuine issue in
dispute.
Because YSU is appellee in the proceeding, YSU must request or move SPBR to dismiss the
case and supply an affidavit. Upon the record review, no affidavit has been supplied with
No. 20AP-444 10
the motion to dismiss the appeal. Let's look at the actions of SPBR. The order of SPBR
dated October 17, 2018 states:
[t]hese matters came on for consideration on the motion of
Appellee that the Rescission attached hereto be adopted. Being
fully advised in the premises, the Board hereby orders that the
rescission, incorporated herein by reference and made a part of
the case files in these appeals, is ADOPTED, and appellant's
appeals are DISMISSED.
(Aug. 25, 2020 Decision and Jgmt. Entry at 4.)
SPBR failed to provide an analysis for adopting and incorporating the rescission. I believe
that one can find that there is more than an inference from the notice of rescission that
appellee introduced to SPBR that appellant could return to the position he held prior to his
termination. This inference was proven false by appellant's lack of job responsibilities and
the letter indicating that upon returning to work that he would be subsequently terminated.
Further, appellant was placed on administrative leave when he returned to work because
the position was non-existent. I would find that appellee presented false information to
SPBR and that appellee failed to supply an affidavit with a motion to dismiss. The notice
of rescission should not have been adopted by SPBR for these reasons.
{¶ 31} Because the trial court found that there is no final appealable order in this
case, the trial court failed to reach appellant's argument of bad faith.
{¶ 32} Ohio Adm.Code 124-7-01(A) provides that:
(A) Job abolishments and layoffs shall be disaffirmed if the
action was taken in bad faith. The employee must prove the
appointing authority's bad faith by a preponderance of the
evidence.
(1) The appointing authority shall demonstrate by a
preponderance of the evidence that a job abolishment was
undertaken due to a lack of a continuing need for the position
based on: a reorganization for the efficient operation of the
appointing authority; reasons of economy; or a lack of work
expected to last one year or longer; or any combination
thereof.
(2) The appointing authority shall demonstrate by a
preponderance of the evidence that a layoff was undertaken
due to a temporary lack of work or lack of funds expected to
last less than one year.
No. 20AP-444 11
(3) Layoffs and abolishments may only be affirmed if the
appointing authority has substantially complied with
procedural requirements set forth in sections 124.321 to
124.394 of the Revised Code and the administrative rules
promulgated pursuant to these statutes.
{¶ 33} In Moore v. Dept. of Rehab. & Corr., 10th Dist. No. 10AP-381, 2010-Ohio-
5970, a hearing was held before an administrative hearing officer where John D. Moore,
the appellant, argued that the Ohio Department of Rehabilitation and Correction acted in
bad faith by moving Edwin Dunn into a position that had already been designated for
abolishment, knowing that this would result in appellant being laid off instead of Dunn. In
the administrative hearing officer's report, the hearing officer granted that portion of
appellee's motion seeking dismissal of the abolishment appeal but concluded that appellant
was entitled to assert a bad faith claim in challenging his displacement.
{¶ 34} SPBR will disaffirm abolishments or layoffs taken in bad faith. Bad faith can
be established by evidence or reasonable inferences from the evidence that job
abolishments were used as a subterfuge to subvert the civil service system. "Where the
intent and consequence of the employer's method is to subvert the civil service system to
allow the selection of handpicked employees to fill jobs that should have been available to
civil service workers based upon seniority and retention points, bad faith has been shown."
Blinn v. Ohio Bur. of Emp. Serv., 29 Ohio App.3d 77, 80 (10th Dist.1985).
An appointing authority has the power to abolish a civil service
position pursuant to a plan of reorganization. Weston v.
Ferguson (1983), 8 Ohio St.3d 52, 53, 8 Ohio B. 523, 457
N.E.2d 818. The abolition of the civil service position must be
done in good faith and not as a subterfuge. State ex rel. Stoer
v. Raschig (1943), 141 Ohio St. 477, 49 N.E.2d 56, paragraph
one of the syllabus. An abolishment is valid when it is done for
purposes of economy, improved public service and there are no
ulterior motives. Id.Combs v. Montgomery Cty. Veterans Serv. Ctr., 10th Dist. No. 04AP-804, 2005-Ohio-
1815, ¶ 15.
{¶ 35} In this case, the letter from appellee dated September 17, 2018 proves by a
preponderance of the evidence that there is no Sales Manager 3 position at YSU available
to appellant. Further, it states that he cannot displace within his classification. The letter
further informs appellant that he will be laid off from the position of Sales Manager 3
No. 20AP-444 12
effective September 24, 2018. Appellant was placed on administrative leave upon returning
to YSU until he was terminated for lack of work.
{¶ 36} The original action taken by appellee was termination for economic reasons.
Since the entire bookstore was eliminated, one could assume that it was a position
abolishment rather than individual termination. Since the termination of the same
position, Sales Manager 3 was rescinded, it begs the question whether it was the position
or just appellant as an employee which was terminated. As the other employees had
reached settlements, I would find that the rehire was pretextual and it was appellant as an
employee that was being terminated. Appellant's claim for bad faith is still outstanding for
prosecution.
{¶ 37} Based upon the foregoing, I would sustain appellant's three assignments of
error, reverse the judgment of the Franklin County Court of Common Pleas, and remand
the matter for further proceedings. Because the majority does not, I respectfully dissent.