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State ex rel. Singer v. Fairland Local School District Board of Education

Supreme Court of Ohio

November 1, 2017

The State ex rel. Singer
v.
Fairland Local School District Board of Education.

         In Mandamus.

          Submitted May 17, 2017

          The Law Firm of Richard M. Lewis, L.L.C., Richard M. Lewis, Christen N. Finley, and Suzanna T. King; and the Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro, for relator.

          Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, and Scott A. Sollmann, for respondent.

          French, J.

         {¶ 1} In this original action, relator, Kurt Singer, seeks a writ of mandamus to compel respondent, Fairland Local School District Board of Education ("Fairland"), to recognize him as a "regular nonteaching school employee" under R.C. 3319.081 with continuing-contract status. He also asks this court to order Fairland to make him whole by awarding him back wages and benefits and crediting him with paid leave and other accrued rights. We deny the writ.

         Background

         {¶ 2} Fairland hired Singer as a substitute custodian on September 11, 2006. Singer's employment as a substitute custodian has continued to the present. All the paystubs that Singer received from Fairland identify him as a "SUB CUST" (capitalization sic), and Fairland's staff-attendance reports detail that Singer was "substituting" every date he worked for Fairland between September 2006 and June 30, 2016. Singer has never signed a written employment contract with Fairland. Singer nevertheless contends that he is a "regular nonteaching school employee" under R.C. 3319.081 and that he is entitled to the statutory rights set out in R.C. Chapter 3319.

         {¶ 3} R.C. 3319.081 governs employment contracts for certain nonteaching school-district employees. "Newly hired regular nonteaching school employees, including regular hourly rate and per diem employees, shall enter into written contracts for their employment which shall be for a period of not more than one year." R.C. 3319.081(A). If the school district rehires such an employee, the second contract shall be for a period of two years. Id. And if the school district renews the employee's contract after the second contract expires, then "the employee shall be continued in employment." R.C. 3319.081(B). In other words, a qualifying employee who is employed more than three years achieves continuing status.

         {¶ 4}"Continuing" status under R.C. 3319.081 carries benefits. The person's employment is generally subject to termination only for cause. R.C. 3319.081(C). And the school district may not reduce a continuing employee's salary, except as part of a uniform plan affecting all nonteaching employees. R.C. 3319.081(B).

         {¶ 5} In addition to the contract rights afforded by R.C. 3319.081, regular nonteaching employees are statutorily entitled to a host of benefits, including vacation leave (R.C. 3319.084), paid holidays (R.C. 3319.087), sick leave (R.C. 3319.141), and personal leave (R.C. 3319.142).

         {¶ 6} Singer alleges that Fairland wrongly designated him as a "substitute" and that as a result, he has been paid less than a full-time custodian, lost health benefits and some pension benefits, and been deprived of sick leave, personal days, vacation days, and holiday pay. Singer requests a writ of mandamus directing Fairland to recognize him as a regular nonteaching employee with a continuing contract pursuant to R.C. 3319.081(B) since the beginning of the 2009-2010 school year and ordering Fairland to make him whole for the back wages and benefits he would have received had he been timely recognized as a regular nonteaching employee.

         Analysis

         {¶ 7} Mandamus is the appropriate vehicle for vindicating rights under R.C. 3319.081. See State ex rel Couch v. Trimble Local School Dist. Bd. of Edn., 120 Ohio St.3d 75, 2008-Ohio-4910, 896 N.E.2d 690, ΒΆ 14, 34. To be entitled to a writ of mandamus, Singer must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the ordinary ...


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