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Davis v. State Employment Relations Board

Court of Appeals of Ohio, Tenth District

August 15, 2013

Teresa Davis, Petitioner-Appellant,
v.
State Employment Relations Board et al., Respondents-Appellees.

APPEAL from the Franklin County Court of Common Pleas, No. 12CV-08-9788

Byron L. Potts & Co., L.PA., and Byron L. Potts, for appellant.

Michael DeWine, Attorney General, and X. Brian Edwards, for appellees.

DECISION

SADLER, J.

(¶ 1} Appellant, Teresa Davis, appeals from a judgment of the Franklin County Court of Common Pleas dismissing her petition for a writ of mandamus to compel appellee, the State Employment Relations Board ("SERB"), to vacate its decision dismissing appellant's unfair labor practice ("ULP") charge and to compel SERB to complete an investigation of the charge. For the following reasons, we affirm.

I. FACTS AND PROCEDURAL HISTORY

(¶ 2} Appellant was employed by the city of Columbus, Department of Public Services, Refuse Collection Division ("city"), and a member of Ohio Council 8, AFSCME, AFL-CIO, Local 1632. On August 23, 2011, appellant was reprimanded for insubordination and neglect of duty for failure to complete her route and for failure to notify her supervisor that she did not complete her assigned route. On September 9, 2011, appellant was written up "for attendance" and neglect of duty. When appellant was notified of her disciplinary hearing, she told management she was "not going to deal with this today" and left work for the day. When she left, appellant refused to either sign the notice or to take the notice with her.

(¶ 3} On October 18, 2011, appellant appeared at the disciplinary hearing represented by union representatives. However, because appellant agreed to tender her resignation effective November 1, 2011, a hearing did not occur.

(¶ 4} On April 17, 2012, appellant filed a ULP charge with the SERB alleging that the union violated R.C. 4117.11(B)(1) and (B)(2) by failing to represent her at the October 18, 2011 grievance hearing. SERB sent appellant a letter advising her that the ULP charge was deficient and that, absent information supporting the tolling of the 90-day statute of limitations, investigator Judy Knapp would recommend dismissal of her charge. The letter stated that appellant had no later than April 24, 2012 to file an amended charge. Appellant filed an amended ULP charge on April 30, 2012 alleging the same violation but asserting that she was not aware that the union may have committed a possible ULP until January 31, 2012, the date she first met with counsel and received legal advice on the matter.

(¶ 5} Knapp issued an investigator's memorandum recommending SERB dismiss the charge as untimely filed. SERB determined that the facts giving rise to the charge occurred more than 90 days prior to appellant's filing of the ULP charge and that no mitigating circumstances existed to warrant the equitable tolling of the statute of limitations. Consequently, SERB dismissed appellant's ULP charge.

(¶ 6} Appellant filed a writ of mandamus in the Franklin County Court of Common Pleas arguing that the 90-day statute of limitations should have been equitably tolled. The Franklin County Court of Common Pleas held SERB did not abuse its discretion in dismissing the ULP charge as untimely and ultimately dismissed appellant's request for a writ of mandamus.

II. ASSIGNMENT OF ERROR

(¶ 7} Appellant filed the instant appeal raising the following assignment of error:

THE DEFENDANT APPELLEE, STATE EMPLOYMENT RELATIONS BOARD ABUSED IT'S [sic] DISCRETION BY DISALLOWING PLAINTIFF-APPELLANT'S CLAIM THAT AFSCME, AFL-CIO, LOCAL 1632, FAILED TO PROPERLY REPRESENT THE APPELLANT IN A ...

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