State ex rel. Neal v. Cincinnati ( 2021 )

[Cite as State ex rel. Neal v. Cincinnati, 2021-Ohio-1276.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, EX REL. : APPEAL NO. C-200202
JEFFREY NEAL, TRIAL NO. A-1606260
:
Relator-Appellee,
: O P I N I O N.
VS. :
:
CITY OF CINCINNATI, OHIO,
:
Respondent-Appellant.
:
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: April 14, 2021
Lazarus & Lewis, LLC, Gary R. Lewis, for Relator-Appellee,
Andrew W. Garth, Interim Cincinnati City Solicitor, and William C. Hicks, Senior
Assistant Solicitor, for Respondent-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} Relator-appellee Jeffrey Neal, a Cincinnati firefighter, applied for a
promotion to captain, but claims that he lost out on that promotion because his exam
was interrupted by buzzing cellphones and distracted examiners. The results tallied
him as 42nd out of 54 applicants, with only the top 25 qualifying for promotion. In
the aftermath of the allegedly tainted test, Lieutenant Neal filed for a writ of
mandamus, challenging his exam results and seeking the promotion notwithstanding
his score. The trial court agreed, ordering the city to promote Lt. Neal to captain
with back pay, along with attorneys’ fees. However, we find that Lt. Neal did not
demonstrate any clear legal right—or duty—to be promoted to captain on the record
before us, thus precluding the extraordinary remedy of mandamus. We therefore
reverse the trial court’s judgment.
I.
{¶2} Lt. Neal joined the Cincinnati Fire Department in 1998, earning a
promotion to lieutenant in 2010. In 2015, the department began accepting internal
applications for fire captain and, pursuant to R.C. 124.45, the city administered
promotional exams as part of that process. Lt. Neal applied for the advancement and
participated in the promotional exam, which consisted of five sections. The first two
sections presented objective, multiple choice questions; whereas the remaining three
were subjective, involving tactical, interview, and written components. Lt. Neal’s
rankings for the first four sections varied between 39 and 43, and he ranked 14 in the
fifth section—yielding a final rank of 42 out of 54 candidates. The city of Cincinnati
(respondent here) ultimately promoted the 25 highest scoring candidates, passing
over Lt. Neal.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} Lt. Neal disputed his exam results, specifically challenging the
administration of the tactical and interview portions. These portions of the exam
involved, among other things, Lt. Neal orally responding to questions posed by
assessors. He alleged that the interruptions began during the tactical portion, after
an assessor’s phone went off. Because the phone was located across the room in a
backpack, the assessor waltzed over to the backpack, rummaging around before
locating the phone to silence it. Incredibly, the assessor allegedly spent considerable
time reading texts from the phone before wandering back to the table. And once
there, the phone repeatedly vibrated, prompting the distracted assessor to engage
with the phone and respond to messages, while presumably ignoring Lt. Neal. All of
this occurred during an exam where phones were not permitted (for obvious reasons,
as this episode illustrates).
{¶4} These distractions allegedly spilled over to the interview portion as
well. At one point, an assessor was responding to a text message during the entirety
of Lt. Neal’s answer to a question. To make matters worse, another assessor
allegedly dozed off for some period of time. In sum, Lt. Neal concludes that these
repeated distractions placed him at a considerable disadvantage for the tactical and
interview portions of the exam because, so far as he is aware and the record
discloses, other applicants did not encounter similar distractions. As a result, he
challenges the legitimacy of the testing process.
{¶5} Lt. Neal complained to the Civil Service Commission and requested
that the commission remedy the situation by promoting him to fire captain. But
after looking into the matter, the commission denied his request. Lt. Neal then
brought this mandamus action against the city, seeking an order requiring the
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OHIO FIRST DISTRICT COURT OF APPEALS
promotion. After a two-day bench trial, the court agreed with Lt. Neal and ordered
the city to promote him to captain, along with back pay and attorneys’ fees. The city
now appeals, bringing three assignments of error.
II.
{¶6} In its first assignment of error, the city insists that a writ of mandamus
was inappropriate because Lt. Neal could not establish a clear legal right and duty to
be promoted to captain. We agree.
{¶7} To obtain a writ of mandamus, Lieutenant Neal “had to establish a
clear legal right to promotion * * * , a clear legal duty on the part of [the city] to
provide the foregoing, and that he had no plain and adequate remedy in the ordinary
course of law.” See State ex rel. Hipp v. N. Canton, 75 Ohio St.3d 221, 222, 661
N.E.2d 1090 (1996); see also State ex rel. Lanter v. Cincinnati, 2020-Ohio-4973, 160
N.E.3d 796, ¶ 18 (1st Dist.). But a writ of mandamus should not be issued lightly.
Mandamus is an “extraordinary remedy,” State ex rel. Manley v. Walsh, 142 Ohio
St.3d 384, 2014-Ohio-4563, 31 N.E.3d 608, ¶ 18, that a court should issue “with great
caution and discretion.” State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 166, 364
N.E.2d 1 (1977). And “[t]he relator must prove entitlement to the writ by clear and
convincing evidence.” Manley at ¶ 18.
{¶8} Because the city challenges the legal basis supporting this writ of
mandamus—whether there was a clear legal right and duty—we review that question
de novo. See State ex rel. Kilgore v. Cincinnati, 1st Dist. Hamilton No. C-110007,
2012-Ohio-4406, ¶ 11 (“An appellate court reviews a trial court’s grant of mandamus
de novo when the underlying, stipulated record presents only questions of law.”);
Cincinnati Entertainment Assoc., Ltd. v. Hamilton Cty. Bd. of Commrs., 141 Ohio
4OHIO FIRST DISTRICT COURT OF APPEALS
App.3d 803, 810, 753 N.E.2d 884 (1st Dist.2001) (“We will review a trial court’s
grant of mandamus de novo when the underlying, stipulated record presents a
question of law. Otherwise, a trial court could make a blatant error of law, and the
party prejudiced would have no relief from this court.”). In other words, we take Lt.
Neal’s assertions that he suffered from inappropriate distractions as a given on the
record at hand, and then evaluate whether such facts can warrant mandamus relief.
{¶9} Conspicuously absent in this case is the source of any legal right or
duty. As Lt. Neal frames it, he deserved “a competitive examination that was
administered competently, properly, fairly and in accordance with Ohio law.” But he
points to no statute or ordinance providing a right or duty for this promotion. And
as we have recently explained, “[f]or mandamus to lie, the duty ‘must be specific,
definite, clear and unequivocal.’ ” State ex rel. Lanter, 1st Dist. Nos. C-190708 and
C-190720, 2020-Ohio-4973, 160 N.E.3d 796, at ¶ 20, quoting State ex rel. Karmasu
v. Tate, 83 Ohio App.3d 199, 205, 614 N.E.2d 827 (4th Dist.1992). In Lanter, this
court found certain language in a city ordinance “too vague to create a clear legal
duty,” id., but at least the applicant there pointed to a city ordinance. By contrast, Lt.
Neal identifies no ordinance or other authority as the source of any legal right or
duty. We cannot excuse the lack of a clear duty, or else we dangerously expand the
mandamus power.
{¶10} To be sure, R.C. 124.45 provides that firefighter positions “shall be
filled by competitive promotional examinations.” But Lt. Neal does not even cite that
provision in his brief, presumably because, at best, that statute might support a right
to obtain a new exam if an applicant established a fundamentally flawed testing
process. See State ex rel. Rimroth v. City of Harrison, 1st Dist. Hamilton No.
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OHIO FIRST DISTRICT COURT OF APPEALS
C-180691, 2020-Ohio-367, ¶ 12 (“As a general rule, if the examination is faulty, a
court can order a new examination.”), citing State ex rel. Hanley v. Roberts, 17 Ohio
St.3d 1, 476 N.E.2d 1019 (1985). But therein lies the problem: Lt. Neal did not
request a new exam. Nor is that the relief the trial court granted. Instead, Lt. Neal
requested—and the trial court ordered—that he be promoted to captain. R.C. 124.45
thus fails to support the relief ordered by the trial court, which explains Lt. Neal’s
avoidance of that provision.
{¶11} It also is worth pausing for a moment to further illustrate the
disconnect between a flawed testing environment and awarding Lt. Neal the
promotion. Given Lt. Neal’s scores during the untainted portions of the test, they
suggest that he would not have qualified for promotion even under an ideal testing
environment. Regardless, we simply don’t know how Lt. Neal would have fared,
forcing us to speculate. In fact, his expert acknowledged that “it is impossible” to
determine how Lt. Neal would have done “had the examination been conducted
appropriately.” His lawyer, in his brief to this court, echoes the point, emphasizing
that “it was impossible to grade” Lt. Neal’s test and that “it [was] impossible to
determine how he would have scored.” If, indeed, it was “impossible” to divine any
of this, then the trial court should never have engaged in speculation and simply
promoted Lt. Neal. See State ex rel. Metz v. GTC, Inc., 142 Ohio St.3d 359, 2015-
Ohio-1348, 30 N.E.3d 941, ¶ 19 (“[T]he appellate court’s speculation that there was a
possible conflict within [the] report that could be construed to bar sedentary
employment does not meet the requisite legal basis for mandamus relief.”).
{¶12} Nevertheless, Lt. Neal cites State ex rel. Hipp, 75 Ohio St.3d 221, 661
N.E.2d 1090, to argue that “mandamus is an appropriate remedy in wrongful denial-
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OHIO FIRST DISTRICT COURT OF APPEALS
of-promotion cases.” That much is true. Id. at 222 (“Mandamus is an appropriate
remedy in wrongful-denial-of-promotion cases.”). But Hipp also underscores the
fatal flaw in Lt. Neal’s argument because it recognized that a flawed exam does not
entitle the candidate to a promotion. The relator in Hipp, a police officer, took a two-
part promotional exam containing a written portion and an oral portion. Id. at 221.
Although the officer scored first on the written portion, he was passed over for
promotion because he placed fourth on the oral portion. Id. The officer then sued in
mandamus, seeking the promotion, and attacking the propriety of the oral portion of
the exam because R.C. 124.44 requires written officer promotional exams. Id. at 222.
But even assuming the invalidity of the oral portion, the court squarely rejected the
notion that the officer could parlay the invalid exam into a legal right for promotion.
Id. at 223 (“[A]ssuming the invalidity of the oral component of that examination,
[the officer] would still not be entitled to appointment and back pay.”). The officer’s
clear legal right—and the corresponding duty—extended only to the exam. Id. at
224. As a result, “the most that [the officer] could establish was a right to have been
considered for appointment rather than a right to appointment.” Id. at 226. See
State ex rel. Rimroth, 1st Dist. Hamilton No. C-180691, 2020-Ohio-367, at ¶ 23
(holding that a firefighter could not establish, on account of an error in the exam
process, a clear legal right (or duty) to promotion with back pay). Applying Hipp to
this case, even “assuming the invalidity of [Lt. Neal’s promotional exam], he would
still not be entitled to appointment and back pay.” See Hipp at 223.
{¶13} None of this, of course, is to belittle what Lt. Neal experienced during
his testing experience. We can appreciate how frustrating it must have been to
encounter distracted, bored, or sleeping evaluators. But mandamus is an
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OHIO FIRST DISTRICT COURT OF APPEALS
extraordinary, and narrow, remedy, and it does not exist to rectify every frustration
and slight that a civil service employee experiences. In the absence of any clear legal
right and duty to be promoted to fire captain, we must sustain the city’s first
assignment of error.
III.
{¶14} In its second and third assignments of error, the city argues that the
trial court erred by awarding back pay and attorneys’ fees. Because we conclude that
Lt. Neal had no legal right to be promoted in the first place, it necessarily follows that
he lacks any entitlement to back pay or attorneys’ fees. We accordingly sustain the
city’s second and third assignments of error.
* * *
{¶15} In light of the foregoing analysis, we sustain the city’s three
assignments of error and reverse the judgment of the trial court, and we remand for
entry of judgment in the city’s favor.
Judgment reversed and cause remanded.
WINKLER and BOCK, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion
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