Opinion
No. 89-2038
Submitted October 23, 1990 —
Decided January 9, 1991.
Employment relations — Mandamus to compel metropolitan housing authority executive director to reinstate demoted employee to manager's position — Writ granted when employee was wrongfully excluded from his former position.
APPEAL from the Court of Appeals for Cuyahoga County, No. 57263.
George M. James, Executive Director of the Cuyahoga Metropolitan Housing Authority ("CMHA"), appellee, employed John Rose, appellant, as an estate manager. James demoted him and Rose filed a grievance under Section 115 of CMHA's Administrative Order No. 11, its Personnel Policy Manual.
After losing the Step No. 1 grievance procedure, Rose requested a Step No. 2 hearing. Under the policy manual, James appointed a hearing officer who conducted a hearing and issued a report.
The hearing officer, a manager for CMHA, reported that Rose scored "excellent" on his last performance evaluation and that Rose's supervisor had remarked Rose was constantly working to improve his skills. The hearing officer also reported that CMHA promoted Rose from assistant manager to manager in August 1985 and that it notified him of his poor job performance in September 1986. The hearing officer related that CMHA then transferred him to manager of another property and later suspended him for three days. CMHA demoted Rose to assistant manager on March 13, 1987.
The hearing officer concluded that Rose may not have been properly prepared or trained to be an estate manager and that CMHA had placed him in a highly responsible position without guidance or periodic evaluations for a number of years. She also thought that Rose may not have applied policies and procedures correctly. Nevertheless, she recommended that James: (1) reinstate Rose as manager; (2) compensate him for the period of time lost due to his demotion; (3) place him on a ninety-day probationary period as manager, evaluate his performance on a specific list of goals and expectations at least twice during this probation, and determine his ability to continue as manager; and (4) engage an impartial staff to determine his performance, such determination to "hold for both parties."
James received these recommendations, dated February 1, 1988, on March 14, 1988. The words "concur" and "approved" appear on the memo apparently received by James. Evidently, James signed his name underneath these words. In any event, James has not disputed the assertion that he approved the report.
James, however, has continued to employ and pay Rose as an assistant manager despite letters from Rose's attorney to James and CMHA's attorney demanding reinstatement. Rose filed a complaint for a writ of mandamus in the Court of Appeals for Cuyahoga County seeking reinstatement to his former position, back pay, and attorney fees. The court denied the writ.
The cause is now before this court upon an appeal as of right.
Denise J. Knecht, for appellant.
Mandamus lies to require a public agency or its officer to reinstate an employee to his former position if the employee is wrongfully excluded from it. State, ex rel. Osborn, v. Jackson (1976), 46 Ohio St.2d 41, 53, 75 O.O. 2d 132, 138, 346 N.E.2d 141, 148. According to State, ex rel. Crance, v. Kennedy (1978), 53 Ohio St.2d 166, 7 O.O. 3d 316, 373 N.E.2d 383, a member of the metropolitan housing authority holds a public office because the authority exercises powers and duties conferred on officers of municipal corporations, is exempt from taxation, may issue bonds for corporate purposes, and is a body corporate and politic. Furthermore, in Cincinnati Metro. Hous. Auth. v. State Emp. Relations Bd. (1990), 53 Ohio St.3d 221, 560 N.E.2d 179, we concluded that a housing authority was a state-created public body and, consequently, a public employer under R.C. 4117.01(B). Thus, a metropolitan housing authority is a public agency amenable to mandamus.
The court of appeals concluded that the personnel directive gave James some discretion, so long as his exercise of such discretion was consistent with the report. The court then found that Rose had not proven that James's refusal to reinstate Rose was an abuse of discretion. The disputed directive, contained in Section 115.2 of the Personnel Policy Manual, states:
"* * * [T]he CMHA Hearing Officer shall issue a written report which shall state findings of fact, together with conclusions as to whether the action imposed or proposed is required, permitted or barred by law. * * * Upon receipt of the report, the Executive Director of CMHA will promptly take such action as he/she deems appropriate, consistent with the written report."
The grievance procedures require the director to follow the hearing officer's recommendations, as the director deems appropriate, consistent with the hearing officer's report. In light of the recommendations here, James may not maintain the status quo. He must act, and his action must conform to language contained within the four corners of the report.
The hearing officer did not recommend that James retain Rose as an assistant manager. Rather, she recommended that James reinstate Rose to a manager position and pay him compensation lost due to the demotion. This recommendation implies that employing Rose as a probationary manager would satisfactorily remedy Rose's job deficiencies. Accordingly, under Section 115 of the personnel manual, James was required to reinstate Rose and, by not doing so, wrongfully excluded him from his position. Consequently, Rose has a clear legal right to reinstatement and lost compensation, and James has a clear legal duty to accomplish these actions. Furthermore, since Rose does not have a plain and adequate remedy in the ordinary course of law, we conclude that the court of appeals should have issued the writ.
Rose also argues for back pay. A public employee may recover compensation due him for when he was wrongfully excluded from his employment if he establishes the amount recoverable with certainty. Monaghan v. Richley (1972), 32 Ohio St.2d 190, 61 O.O. 2d 425, 291 N.E.2d 462, syllabus. Rose attached copies of his pay stubs to his complaint, indicating his salary before and after the demotion. Consequently, the court of appeals can calculate the amount of his lost compensation until the filing of the complaint, and may calculate lost compensation since then on receiving further evidence establishing the amount recoverable with certainty.
As to Rose's claim for attorney fees, he must show that James acted in bad faith. This Rose did not do. Even though James acted contrary to the report, he apparently believed he had discretion to do so. The court of appeals, in fact, agreed with him. Obtaining a favorable decision from at least one court can reveal good faith. State, ex rel. Caspar, v. Dayton (1990), 53 Ohio St.3d 16, 558 N.E.2d 49.
Accordingly, we reverse the judgment of the court of appeals and direct it to issue a writ ordering James to reinstate Rose to his former position and award him back pay lost due to his demotion, from the date of his demotion until the date of his reinstatement.
Judgment reversed and cause remanded.
MOYER, C.J., SWEENEY, HOLMES, WRIGHT, H. BROWN and RESNICK, JJ., concur.
DOUGLAS, J., concurs in judgment only.