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Mallett v. Cleveland Civil Service Commission

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 1, 2017

HENRY MALLETT RELATOR
v.
CLEVELAND CIVIL SERVICE COMMISSION, ET AL. RESPONDENTS

         Writ of Mandamus Motion No. 499722 Order No. 504455

         JUDGMENT: WRIT DISMISSED

          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

         {¶1} 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.[1] 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.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.[2] 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 court." Id.

         {¶7} 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.

         {¶8} 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 ...


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