Opinion
No. 79-1120
Decided March 26, 1980.
Civil Service — Reinstatement of wrongfully discharged employee — Mandamus action to recover back pay — Mitigation of damages — Burden of proof.
APPEAL from the Court of Appeals for Franklin County.
On November 14, 1975, appellee, Daniel T. Marshall, received an appointment to the position of firefighter in the Division of Fire, Department of Public Safety of the city of Columbus — a competitive classified civil service position. Immediately following his graduation from the Columbus Fire Training Academy, Marshall was dismissed from his position on December 29, 1975.
Marshall appealed his dismissal to the municipal civil service commission, alleging that his employment had been unlawfully terminated. The commission rejected the appeal and the Court of Common Pleas affirmed. On February 21, 1978, the Court of Appeals reversed and ordered that he be reinstated. He was reinstated effective April 6, 1978.
In February 1976, appellee sought firefighter positions with the Westerville and Upper Arlington Fire Departments. In Westerville, he placed third out of approximately 100 who took the written test for the positions. He was not offered a position. In Upper Arlington he was told that the department had no immediate hiring plans. In mid 1976, Marshall was employed for about six weeks as an iron worker by All Piping, Inc. He left that position because of an industrial injury. At the 1976 and 1977 Ohio State Fairs he was also self-employed as a concessionaire. In September 1976, Marshall enrolled as a fulltime law student in the Ohio State University College of Law.
From January 1976, to April 6, 1978, three other Columbus area fire departments conducted civil service examinations and hired firefighters. In April 1976, 150 people took the city of Whitehall's examination. During the period in question six or seven of these were hired. Washington-Perry Township administered tests in April and September, 1977. Seventy-six people took the September test, but it is not known how many took the April one. Thirteen of these were ultimately hired. The city of Grandview Heights administered a test in the summer of 1976. Approximately 150 people took the test, and three were ultimately hired. These fire departments hire on a competitive basis, including written tests, background investigations, oral interviews, physical examinations, and physical agility tests. Marshall did not compete for these positions.
After being reinstated in the Columbus Division of Fire, Marshall filed this action in mandamus in the Court of Appeals for Franklin County seeking a writ ordering the city of Columbus to compensate him for back wages from December 29, 1975, to April 6, 1978, in the amount of $23,421.70 plus interest, vacation credits, sick leave credits, and pay scale adjustments. The city denied having a clear legal duty to perform these acts, alleging the affirmative defense of mitigation of damages. The Court of Appeals issued the writ on June 21, 1979, ordering the city to grant Marshall his requested relief less actual earnings during the period.
The cause is now before this court upon an appeal as of right only on the issue of back pay liability between December 29, 1975, and April 5, 1978.
Mr. Robert P. DiRosario, for appellee.
Mr. Gregory S. Lashutka, city attorney, Mr. Patrick M. McGrath and Mr. Donald R. Keller, for appellants.
In State, ex rel. Martin, v. Columbus (1979), 58 Ohio St.2d 261, paragraph two of the syllabus, this court held that a civil service employee who is unlawfully discharged is entitled to his lost compensation, but "is subject to have his claim reduced by the amount he earned, or in the exercise of due diligence, could have earned in appropriate employment during the period of exclusion." In the third paragraph of the syllabus in Martin, supra, we held that this question of mitigation of damages "is an affirmative defense and the burden of proof on that issue resides upon the employer responsible for the wrongful discharge." Thus, the issue before us is whether appellant city of Columbus has met its burden of proof.
Assuming, arguendo, that appellee did not exercise due diligence in seeking appropriate other employment, the burden is on appellant to establish what appellee could have earned in appropriate other employment. The record shows that Marshall was unlawfully discharged from the Columbus Department of Public Safety, Division of Fire, on the same day he graduated from the Columbus Fire Training Academy; that he placed third on Westerville's firefighter civil service examination, but was not hired; that of the numerous individuals who took firefighter civil service examinations in Whitehall, Washington-Perry Township, and Grandview Heights, only 22 or 23 were ultimately hired; and that at the time Marshall could have competed for these latter positions he was suing appellant for reinstatement. Given these facts, we must agree that appellant has not met its burden of proof in establishing what appellee could have earned in appropriate employment if he had exercised due diligence.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.
I dissent from the majority herein because the record clearly establishes that the appellee had not exercised a reasonable degree of diligence in seeking other appropriate employment. Here it was shown that a number of other municipalities had conducted examinations for firefighter positions, but that the appellee had not chosen to compete for these positions.
The fact that he was, during such period, involved in litigation attempting to be reinstated provides no reasonable excuse for not competing for such other positions. Further, it appears that in 1976, the appellee had made his decision to change his vocational approaches by becoming a full-time law student at Ohio State University which seems to be inconsistent with his continued availability for employment as a firefighter, or other full-time employment. However, appellee conceivably could have worked additional part-time in order to mitigate any claimed lost wages.
It is my conclusion that the city of Columbus had met its burden in showing an absence of due diligence on the part of this appellee to mitigate the claim for lost wages.