SPBR Case Law Archive -- Employees & Appointments: Employees

Employees & Appointments

2. Employees

Ferrell v. Belmont-Harrison-Monroe Drug and Alcohol Council, Inc. (May 18, 1995), PBR No. 94-WHB-09-0354, aff'd (June 13, 1994) Full Board. An employee of a private not-for-profit entity which provides services to county residents pursuant to a contractual agreement with a mental health board of the state of Ohio is not made a state or county employee by virtue of the entity's relationship with the political subdivisions set forth in its contract. View SPBR Order

1992 Op. Att'y Gen. No. 044. If a board of a joint solid waste management district "uses" the employees of a participating county to perform services for the joint district, the "appointing authority" of such employees, as defined in R.C. 124.01(D), is the county officer, commission, board or body having the power of appointment and removal of such employees.

1992 Op. Att'y Gen. No. 044. If a board of joint solid waste management district "uses" employees of a participating county, the party that directly compensates such employees is the "employer," as defined in R.C. 145.01(D) for purposes of Chapter 145.

1990 Op. Att'y Gen. No. 014. For purposes of R.C. Ch. 124, an "employee" is any person holding a position subject to appointment, removal, promotion or reduction by an appointing officers; the term "employee" does not include an officer who is appointed by the governor to a post as an appointing authority or to a post on a commission, board, or body that has been granted appointing authority. View Attorney General Opinion

A. Certified Employees

Riddle v. State Personnel Board of Review (1987), 41 Ohio App.3d 68. An employee certified in a classification who voluntarily accepts a provisional position in a lower classification does not thereby waive his right under O.A.C. 123:1-24-03 to be returned to his certified position in the event he is certified against by an eligible list in the provisional position.

State, ex rel. Allen v. Bowling Green State University (1990), 61 Ohio Misc.2d 562. "Telephone coordinator," a classified position at state university, was substantially similar to new position of "telecommunications manager"; thus, certified coordinator was entitled under civil service laws to classified position as head of telecommunications area.

State, ex rel. Allen v. Bowling Green State University (1990), 61 Ohio Misc.2d 562. Even if a newly created telecommunications manager's job at state university was in reality a change of position from classified telephone coordinator position to one outside classified civil service system, certified coordinator was entitled to manager's position where there was no just cause for coordinator's removal or demotion and new manager's position merely reflected evolution of job and technological development.

In re Hamilton County Welfare Dept. (July 13, 1979), Franklin Co., No. 79-CV-02-796, unreported. The state personnel board has jurisdiction over appeals from employees who were displaced following civil service examinations; employees, who were already certified, were required to be recertified.

Caldwell v. Ohio Dept. of Transportation (June 16, 1992), PBR 91-LAY-03-0147 and (Feb. 7, 1992), PBR 91-INV-03-0148; aff'd (Mar. 16, 1992), Full Board. Appointment as an interim employee, in accordance with R.C. 124.30 and O.A.C. 123:1-47-01(A)(41), does not create the status of a provisional appointee, and R.C. 124.241 does not convert the status of the incumbent's employment, following two years of continuous service within the position, to that of a certified, permanent employee. View Common Pleas Decision | View SPBR Order

Moon v. Ohio Bureau of Employment Services (July 15, 1991), PBR 90-REM-12-1119; aff'd (Sept. 26, 1991), Full Board; aff'd (June 1992), Franklin Co., No. 91CVF10-8225, unreported. Where reinstating an employee to a newly created position and pay range closely matching the job duties of his or her former position would create a position so similar in duties that it would be considered a bargaining unit position, O.A.C. 123:1-24-03(D) requires that the employee be treated as laid off and placed on a layoff list in his or her former classification as a certified employee. View Common Pleas Decision | View SPBR Order

B. Contract Employees

Carter v. Ohio Dept. of Health (1986), 28 Ohio St.3d 463. Where the appointing authority complies with all procedural requirements and statutes and properly arranges through DAS to sub-contract their data entry work with a private firm, it may properly abolish employee positions for reasons of economy within the scope of R.C. 124.321(D).

Local 4501, Communications Workers of America v. Ohio State University (1986), 24 Ohio St.3d 191. In the absence of proof that a public employer was motivated by political considerations or a desire to set up a spoils system, the public employer may lawfully contract to have an independent contractor perform services which might also be performed by civil service employees, so long as such practice is not violative of either the affected employee's collective bargaining agreement or R.C. Ch. 4117.

State, ex rel. Allen v. Bowling Green State University (1990), 61 Ohio Misc.2d 562. State university may not replace classified position with contract position outside classified service where duties of contract position are substantially same as those performed by person holding classified position.

McClure v. Ohio Dept. of Administrative Services (Feb. 21, 1991), PBR 90-REC-05-0713. Ordinarily, contract employees are not considered in assessing whether a public employee is a supervisor; however, where the employees reported directly to appellant on a full-time basis, had done so for an extended period of time, would continue to do so, and appellant's staff would be composed of contract employees until the implementation of the system, after which full-time civil service employees would be hired to maintain the system, supervision of contract employees may be considered the equivalent of supervising two full-time, permanent civil service employees. View SPBR Order

C. De Facto Employees

State, ex rel. Zone v. City of Cleveland (1986), 23 Ohio St.3d 1. Mandamus will not lie to compel a municipality to pay back wages to municipal skilled employees who contend they were de facto appointed to "foreman" positions by their supervisors and thus were entitled to the prevailing wage rates for such positions established between skilled building tradesmen and employers in the private sector, in the absence of a prior appointment to those positions.

Leigh v. Ohio Dept. of Administrative Services (Feb. 22, 1989), PBR 88-REM-11-0585. An employee who works forty hours a week each week for fourteen months is a de facto full-time employee regardless of his official designation as an intermittent employee; as a full-time employee, his employment could only be terminated for cause under R.C. 124.34. View SPBR Order

D. Full-Time Employees

Metzgar v. Summit County Children Services Board (1982), 8 Ohio App.3d 168. An appointing authority may not deprive an employee of benefits accruing to a full-time regular civil service employee by laying off the employee from a full-time permanent position because of lack of work and then retaining the employee forty hours a week as an "extra" to fill in at various work locations, at irregular hours and performing the same duties as before.

Metzgar v. Summit County Children's Services Board (1982), 8 Ohio App.3d 168. Full-time employment may involve working more than five days per week, working irregular hours, or working at different work locations day to day, so long as the employment is regular both as to the general nature of the duties performed (which may vary from day to day) and as to usually working forty hours per week.

Rogers v. Ohio Dept. of Natural Resources (Jan. 22, 1987), PBR 86-MIS-10-1334. Although the department of natural resources has the discretion to establish the starting and ending dates of the park season, it may not employ full-time permanent seasonal employees during one portion of the season and then employ intermittent workers to perform the work for the remainder of the season; such a practice constitutes a reduction for other than disciplinary purposes and is impermissible pursuant to R.C. 124.34. View SPBR Order

1981 Op. Att'y Gen. No. 066. A full-time state employee who was a member of the Ohio National Guard serving on duty one weekend per month and two weeks out of every year is entitled to one year prior service credit for each year of service with the Ohio National Guard for the purpose of computing the amount of his vacation leave pursuant to R.C. 121.161.

E. Handicapped Employees

Hayes v. Cleveland Pneumatic Company (1993), 92 Ohio App.3d 36; cert denied 69 Ohio St.3d 1415. If employer can demonstrate factors such as chronic unexcused absences which adversely affect job performance, discharge is not unreasonable under the antihandicap discrimination law.

Sizemore v. Ohio Dept. of Rehabilitation and Corrections (1992), 63 Ohio Misc.2d 319. Correctional officer who was discharged after his driver's license was suspended for having eleven convictions of OMVI failed to make sufficient showing that he was an alcoholic or that he was discharged for his alcholism to establish that he was unlawfully discharged based on handicap; mere fact that employee had eleven separate OMVI convictions did not prove he was an alcoholic, and correctional institution had just cause to discharge correctional officer, in accordance with its policies, based on suspension of his driver's license and his taking actions that could compromise his ability to perform his job effectively. View SPBR Order

Sizemore v. Ohio Dept. of Rehabilitation and Corrections (1992), 63 Ohio Misc.2d 319. Failure of handicapped employee to fulfill all requirements for his job gives employer just cause to discharge employee, preventing finding of handicap discrimination. View SPBR Order

1. Definition of Handicap

Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St.3d 279. Drug addiction and alcoholism are handicaps as defined in R.C. 4112.01(A)(13).

Hayes v. Cleveland Pneumatic Company (1993), 92 Ohio App.3d 36; cert denied 69 Ohio St.3d 1415. Drug addiction and depression are handicaps for purposes of the antihandicap discrimination law; adverse effect of handicap on job performance is just cause for dismissal.

Sizemore v. Ohio Dept. of Rehabilitation and Corrections (1992), 63 Ohio Misc.2d 319. Alcoholism is a handicap for purposes of Ohio's employment discrimination law; to prove that person is an alcoholic there must be more than self-serving statements of person claiming the handicap, at a minimum there must be medical evidence to support finding that person is an alcoholic. View SPBR Order

Cervella v. Lake County Commissioners (June 17, 1996), Lake App. No. 95-L-094, unreported, 1996 WL *****. More than Appellant's self-serving statements must be admitted to prove that a handicap such as drug addiction exists; at a minimum, medical evidence must be offered to substantiate the claimed handicap. View Court of Appeals Decision | View Common Pleas Decision | View SPBR Order

2. Accommodation

Sizemore v. Ohio Dept. of Rehabilitation and Corrections (1992), 63 Ohio Misc.2d 319. If handicapped employee is discharged for just cause, not because of handicap, employer has no duty to reasonably accommodate handicap of employee. View SPBR Order

Sizemore v. Ohio Dept. of Rehabilitation and Corrections (1992), 63 Ohio Misc.2d 319. Proposed accommodation of correctional officer's alleged alcoholism, whereby, due to suspension of correctional officer's driver's license upon his eleventh conviction of OMVI, correctional officer would either be put in a position where he would not be required to drive or teamed with another corrections officer who could drive for him, would be unreasonable, even assuming correctional institution had any duty to accommodate under circumstances. View SPBR Order

F. Interim Employees

Benton v. Ohio Bureau of Employment Services (June 22, 1992), PBR 92-REM-02-0080; aff'd (Aug. 18, 1992), Full Board. Where an interim employee is returned to his former position following a decision by the appointing authority not to fill the interim position temporarily occupied by the employee, that employee is not removed and an appeal is inappropriate. View SPBR Order

Evans v. Broadview Developmental Center (Oct. 16, 1990), PBR 90-REM-04-0171. An interim part-time employee has a right to the term of employment whose parameters were determined by the disability of the incumbent; as a classified employee, the interim part-time employee was entitled to an R.C. 124.34 order setting forth the reasons for his dismissal, as a minimal requirement of due process. View SPBR Order

Glunt v. Ohio Dept. of Transportation (Nov. 12, 1987), PBR 87-RED-08-0645. Where an interim appointment continues for four months after the effective end of the period of disability for which the interim appointment was made and the appointing authority acts with reasonable diligence to select an applicant after the vacant position is posted, the incumbent employee is not entitled to the position by default and is not reduced in position when another applicant is selected to fill the vacancy. View SPBR Order

G. Part-Time Employees

Abbot v. Stepanik (1990), 64 Ohio App.3d 719; cert denied 50 Ohio St.3d 717. Juvenile detention center part-time employees who claimed to have been wrongfully terminated were defined by statute as being outside classified civil service, so were not entitled to statutory protection against termination for other than just cause.

H. Permanent Employees

Weinstiger v. Ohio Dept. of Natural Resources (1983), 10 Ohio App.3d 152. The classification of "permanent employee" under R.C. 124.32(C) includes all permanent employees, whether hired on an intermittent, part-time, seasonal or full-time basis.

I. Probationary Employees

Bashford v. City of Portsmouth (1990), 52 Ohio St.3d 195. When a collective bargaining agreement does not specifically mention the subject of probationary employee termination, state and local laws govern such termination.

Walton v. Montgomery County Welfare Dept. (1982), 69 Ohio St.2d 58. The state personnel board of review lacks jurisdiction to review removals on the merits during the second half of an employee's probationary period.

Dillon v. City of Macedonia (1988), 43 Ohio App.3d 17. When a municipal civil service employee's probationary period has expired without any action for removal by the appointing authority during the probationary period, the employee is presumed to have served the probationary period satisfactorily and cannot be dismissed or demoted absent notice and a hearing to show cause.

Vonderau v. City of Parma Civil Service Commission (1983), 15 Ohio App.3d 44. The decision as to what is or is not satisfactory probationary service lies solely with the appoiinting authority and a civil service commission does not have appellate jurisdiction over that finding.

Hanes v. Franklin County Sheriff (June 28, 1988), Franklin App. No. 87AP-1067, unreported, 1988 WL 70444. The language of O.A.C. 124-1-05, which gives the state personnel board of review jurisdiction to determine whether the appointing authority has complied with applicable rules and statutes, merely provides the board with jurisdiction to review situations pursuant to various sections of R.C. Ch. 124, including R.C. 124.56, but in no way suggests that that "jurisdiction" may be invoked to allow an appeal of a second-half probationary removal, even if appellants contend they dispute only the procedural aspects of the removal. View Court of Appeals Decision | View SPBR Order

State, ex rel. Head v. Ohio State University (July 23, 1985), Franklin App. No. 85AP-134, unreported, 1985 WL 10087. An appointing authority may assign a probationary employee interim job duties after the employee has been given notice that his probation is unsatisfactory and before a new permanent position can be found. View Court of Appeals Decision | View Common Pleas Decision

Kennard v. Ohio Dept. of Transportation (Jan. 6, 1992), PBR 91-RED-07-0434; aff'd (Jan. 22, 1992), Full Board; aff'd (June 18, 1992), Franklin Co., No. 92CVF-02-1561, unreported. An administrative regulation may not enlarge or restrict express provisions within a statute; to the extent that R.C. 124.27 does not require a communication to be directed to the director of the department of administrative services indicating the reasons underlying a probationary reduction, while the language of O.A.C. 123:1-23-12 requires that such a communication be made by an appointing authority and directed to the director, the language within the O.A.C. provision must bow to the greater authority of the statutory pronouncement within R.C. 124.27. View Common Pleas Decision | View SPBR Order

Carr v. University of Cincinnati (May 24, 1991), Hamilton Co. No. A-9005821, unreported; dismissed (NO DATE), Hamilton App. No. C9104752, unreported. The state personnel board of review lacks jurisdiction over the appeals of employees removed during the second half of their probationary periods. View Common Pleas Decision

Shegow v. Ohio State University (Mar. 30, 1992), PBR 91-REM-10-0667. Where university policy provides the option of placing an employee on disability separation for more than six months, an employee could, theoretically, be out on disability separation for more than a year and still be entitled to reinstatement without the necessity of retesting and rehiring; the employee's disability separation would not constitute a break in service and employee could still be within her probationary period. View SPBR Order

Kelly v. Ohio State University (Dec. 14, 1987), PBR 87-REM-10-0750. The time served by appellant in an unrelated temporary position prior to an appointment to a permanent classification does not apply toward the completion of the probationary period in the permanent classification. View SPBR Order

France v. Summit County Board of MR/DD (Sept. 24, 1985), PBR 85-REM-04-0638. An intermittent employee's probationary period is calculated on the actual hours employed. View SPBR Order

J. Provisional Employees

State, ex rel. Click v. Thormyer (1958), 105 Ohio App. 479. In the absence of an eligible civil service list, a civil service employee, provisionally appointed after a noncompetitive examination and upon approval of the civil service commission, becomes an appointee in the classified service.

Lupo v. Ohio Dept. of Natural Resources (Aug. 15, 1995), Franklin App. Nos. 95APE01-0039 and 95APE01-0044, unreported, 1995 WL 491394. The law does not prohibit an employer from knowingly and purposely abolishing the position of a provisional employee immediately before the employee becomes certified, where the employee's position is abolished for a permitted reason. View Common Pleas Decision (1994) | View Common Pleas Decision (1993) | View SPBR Order (Remand) | View SPBR Order

Evans v. Toledo Mental Health Center (Feb. 25, 1983), PBR 82-REM-12-3372. R.C. 124.30(A) permits displacement of provisional employees only when the eligible list is prepared from a competitive examination. View SPBR Order

K. Seasonal

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