Court of Appeals of Ohio, Eighth District, Cuyahoga
Mandamus Motion No. 499722 Order No. 504455
ATTORNEY FOR RELATOR Stewart D. Roll Climaco, Wilcox, Peca,
Tarantino & Garofoli Co., L.P.A.
ATTORNEYS FOR RESPONDENTS Jon M. Dileno Ami J. Patel Zashin
& Rich Co., L.P.A
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE
On August 2, 2016, the relator, Henry Mallett, commenced this
mandamus action against the respondents, the Cleveland Civil
Service Commission and the city of Cleveland, to compel the
respondents to reinstate Mallett to his former position as a
city of Cleveland employee with full back pay. On September 2,
2016, the named respondents filed a motion to dismiss, and
Mallett filed his brief in opposition on September 12. The
respondents sought leave to file a reply brief on September
19, and Mallett filed his opposition to that motion on
September 21, 2016. For the following reasons, this court
grants the respondents' motion to dismiss and dismisses
the application for a writ of mandamus.
The city of Cleveland had employed Mallett as construction
equipment operator for the city's department of public
utilities. In May 2013, Cleveland was trying to repair a
water main break on Miles Road. Mallett's foreman
directed him to collect debris blocking the road into a pile
that would be picked up later. Mallett deposited a small
amount of the debris into a nearby creek. He stopped doing
this when instructed to do so. The dumping into the creek
risked violating federal, state and local environmental laws.
Because of dumping the debris into the creek, Cleveland
terminated Mallett for "neglect of duty, "
"conduct unbecoming an employee in the public service,
" and "for other failure of good behavior which is
detrimental to the service, or for any other act of
misfeasance, malfeasance, or nonfeasance in office."
Mallett appealed this decision through the Cleveland Civil
Service Commission, which affirmed the termination. He
appealed to the Cuyahoga County Common Pleas Court, which
upheld the termination. Mallett v. Cleveland Civ. Serv.
Comm., Cuyahoga C.P. No. CV-14-823882. He then appealed
to this court.
In Mallett v. Cleveland Civ. Serv. Comm., 8th Dist.
Cuyahoga No. 102559, 2015-Ohio-5140, this court held
"that this one-time event did not fall into any of the
city's enumerated grounds for termination of
Mallett." Id. at ¶ 23. Thus, the trial
court abused its discretion in upholding his termination.
Specifically, this court ordered: "Judgment reversed;
case remanded to the trial court for reversal of the January
5, 2015 judgment entry." Id. at ¶ 35.
On remand in a July 12, 2016 journal entry, the trial court
reversed its January 5, 2015 order. It then ruled:
while the court of appeals indicated that Mallett's
actions did not rise to a level that justified termination,
it did not state that no discipline was warranted. The court
of appeals found that generally it was the city's
protocol to haul away such debris in dump trucks, that
Mallett's foreman directed Mallett to collect debris in a
pile that would be picked up later after the water drained
and it had dried, and that Mallett failed to follow this
order and, instead, dumped the debris into a nearby creek.
Clearly, such actions warrant discipline pursuant to R.C.
124.34. Therefore, this court remands this matter back to the
Cleveland Civil Service Commission to determine the
appropriate level of discipline, short of termination, for
Mallett's actions. So ordered.
Mallett now brings this mandamus action under the theory of
law of the case to compel his reinstatement with full back
pay without any discipline. The law of the case
"doctrine provides that the decision of a reviewing
court in a case remains the law of the that case on the legal
questions involved for all subsequent proceedings in the case
at both the trial and reviewing levels." Nolan v.
Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). Thus,
"[a]bsent extraordinary circumstances, such as an
intervening decision by the Supreme Court, an inferior court
has no discretion to disregard the mandate of a superior
court in a prior appeal in the same case." State ex
rel. Smith v. O'Connor, 71 Ohio St.3d 660,
662, 1995-Ohio-40, 646 N.E.2d 1115. Moreover, a "writ of
mandamus is an appropriate remedy to require a lower court to
comply with an appellate court's mandate directed to that
Mallett's argument is a strong one. Because Mallett's
action in dumping a small amount of debris into the creek did
not fall into any of the city's enumerated grounds for
termination, this court necessarily ruled that there are no
longer any pending charges against him. Therefore, Mallett
argues the order to reverse the trial court's judgment
must necessarily mean that Mallett must be reinstated with
full back pay.
However, this argument is not persuasive, because this court
did not explicitly state what had to be done or what should
be done on remand, other than reversing the trial court's
January 5, 2015 judgment entry. This court's order of
remand did not preclude other actions after reversing the
judgment entry. A clear, legal right ...