Court of Appeals of Ohio, Eighth District, Cuyahoga
WILLIAM D. SCHNEIDER, ET AL. PLAINTIFFS-APPELLANTS
CUYAHOGA COUNTY BOARD OF COUNTY COMMISSIONERS, ET AL. DEFENDANTS-APPELLEES
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANTS Avery S. Friedman Avery S. Friedman
ATTORNEYS FOR APPELLEES Michael C. O'Malley Cuyahoga
County Prosecutor Dale F. Pelsozy Jennifer Meyer Assistant
Prosecuting Attorney The Justice Center
BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
T. GALLAGHER, JUDGE
Plaintiffs-appellants, William D. Schneider, et al.
(collectively "appellants"), appeal from the
judgment of the Cuyahoga County Court of Common Pleas
granting summary judgment in favor of defendants-appellees,
the Cuyahoga County Board of County Commissioners, et
("collectively the "BOCC"). Appellants raise
the following assignments of error for our review:
1. The exhaustion of administrative remedies by the
plaintiffs became a futile act in that the decision-makers
were participants in the reversal of granting early
retirement benefits to all county workers except the
plaintiffs who were originally granted benefits by the
2. The trial court committed reversible error in granting
summary judgment to defendant-appellees when evidence
established a multitude of genuine issues of material fact.
3. The trial court committed reversible error in granting
summary judgment by apparently disregarding the fact that
defendants-appellees reversed themselves by first granting
ERIP benefits, then denying ERIP benefits. The reversal
establishes an issue of material fact.
4. The trial court committed reversible error in granting
summary judgment by apparently disregarding the fact of
historical grants of senior SED employee participation in
ERIP benefits prior to their complaining about corruption by
5. The trial court committed reversible error in granting
summary judgment by relying on an affidavit of the attorney
for defendants-appellees in determining that no genuine
issues of material fact existed even though
plaintiffs-appellants submitted evidence to the contrary.
6. The trial court committed reversible error in granting
summary judgment by apparently relying on an excerpt of a
different proceeding which included the partial testimony of
an OPERS employee unrelated to the factual information and
controversy involved in this case.
After careful review of the record and relevant case law, we
affirm the trial court's judgment.
On November 6, 2008, the BOCC passed a resolution
establishing a county-wide Early Retirement Incentive Program
("ERIP") in an effort to combat budgetary concerns.
As written, the ERIP excluded only one county agency, the
Sanitary Engineering Division ("SED"). The SED is a
subdivision of the BOCC, created and maintained by the BOCC
as an operating division of the County Engineer's Office.
But the BOCC created a separate employing unit called the
"BOCC, excluding the SED" specifically for the
Pursuant to the ERIP's grievance procedure, SED
employees, including appellants, filed a grievance on behalf
of all SED employees regarding the BOCC's decision to
exclude them from participation in the ERIP. SED employees
suggested that the BOCC's decision to "revoke"
SED's participation in the ERIP was made in retaliation
to certain complaints raised by SED employees about workplace
conditions. On January 9, 2009, the county administrator held
a hearing on the grievance. Approximately 15 SED employees
attended the hearing and were given an opportunity to be
heard. On January 20, 2009, the county administrator issued a
decision denying the grievance request and concluding that
the SED would not be allowed to participate in the ERIP. In a
letter to plaintiffs, the administrator explained that
Cuyahoga County "is facing a very critical financial
situation" and "an ERIP in the Sanitary Engineer
agency would not have been a cost savings." Following
the administrator's decision, none of the SED employees
attempted to file an administrative appeal pursuant to R.C.
On December 30, 2009, Teamsters Local Union No. 436 and union
member Kevin Lesh (collectively "the union"), filed
a taxpayer action against the BOCC, on behalf of all
union-member SED employees, seeking injunctive and
declaratory relief. Specifically, the union sought a
declaration that the commissioners violated R.C. 145.297 when
they authorized the ERIP for all board employees excluding
the SED. In addition, the union sought an order compelling
the BOCC to include the SED in the ERIP. The union sought
similar relief in a separate cause of action for declaratory
judgment and in a request for a writ of mandamus in its
January 7, 2010 amended complaint. In addition to denying the
merits of the union's claims, the BOCC asserted that the
union did not have standing to bring its taxpayer action and
that it was otherwise barred from requesting equitable
remedies because the SED employees had failed to exhaust
their administrative remedies.
Noting that the union had brought the present action mere
days before the ERIP was due to terminate, the trial court
denied the union's request for injunctive relief and its
action in mandamus, in an entry issued on January 22, 2010.
However, the trial court granted the union's prayer for
declaratory relief and held that the BOCC's failure to
include the SED as part of the "employing unit"
that was eligible for the ERIP did not comply with the
definition of "employing unit" in R.C. 145.297 and
that the commissioners were therefore in violation of the
The commissioners appealed to the this court, which, in a
split decision, affirmed the trial court's judgment,
finding (1) the union had standing to bring the taxpayer
action, (2) the BOCC failed to comply with R.C. 145.297 when
it designated "Cuyahoga County, excluding Sanitary
Engineering" as the subordinate employing unit, and (3)
the union was "not required to exhaust administrative
remedies because the [SED employees] were excluded from
participating in the ERIP; thus, any attempt to go through an
administrative remedy process would have been futile."
State ex rel. Teamsters Local Union No. 436 v. Cuyahoga
Cty. Bd. of Commrs., 194 Ohio App.3d 258, 2011-Ohio-820,
955 N.E.2d 1020 (8th Dist.) ("Teamsters I
Subsequently, the Ohio Supreme Court accepted discretionary
jurisdiction to hear the BOCC's appeal. State ex rel.
Teamsters Local Union No. 436 v. Bd. of County Commrs,132 Ohio St.3d 47, 2012-Ohio-1861, 969 N.E.2d 244("Teamsters II "). On May 1,
2012, the Ohio Supreme Court reversed this court's
decision, finding (1) the union lacked standing to bring a
taxpayer action because it sought a remedy solely for its own
benefit, and (2) "the union and the [SED]
employees" failed to exhaust their administrative