Opinion
No. 75-922
Decided March 10, 1976.
Civil service — Employee wrongfully excluded from employment — Entitled to back pay, when — Mandamus — Available, when — Amount recoverable established with certainty.
APPEAL from the Court of Appeals for Franklin County.
On December 31, 1973, relator, Frederick M. Dean, was laid off from the Department of Development of the city of Columbus. Relator held the position of Development Project Assistant One in Urban Renewal.
Contending that his layoff was illegal, relator, on August 30, 1974, sought a writ of mandamus in the Court of Appeals to compel the Director of the Department of Development to reinstate him in his job and "secure and return to him the compensation due him for the period of time during which relator was wrongfully excluded from his employment." The complaint alleged that the compensation due relator "can be established with certainty." The parties, by stipulations of evidence and deposition, litigated both the issue of improper removal and the amount of back pay.
The Court of Appeals, although agreeing with appellant that "the layoff was illegal" and that he should be returned to his employment, declined to award money damages to appellant. The court held that "the amount of recovery applicable is not demonstrated to be established with certainty, based on the state of the record in this case," and relegated relator to the "bringing an action at law for money damages for the loss of wages proved occasioned because of his wrongful exclusion from employment * * *." The court, in overruling relator's motion for reconsideration, upheld its position as to the state of the record.
The cause is now before this court pursuant to an appeal as of right from the judgment of the court as to the denial of money damages.
Messrs. Clayman Jaffy, Mr. Stewart R. Jaffy and Mr. John W. Kenesey, for appellant.
Mr. Robert A. Bell and Mr. Dennis R. Morgan, for appellee.
The issue to be determined is whether the Court of Appeals was correct in precluding relator from a recovery of money damages and relegating him to bringing a separate action at law for those damages.
In Monaghan v. Richley (1972), 32 Ohio St.2d 190, this court said in the syllabus that:
"An action in mandamus is maintainable by a reinstated public employee to recover compensation due him for the period of time during which he was wrongfully excluded from employment, provided the amount recoverable is established with certainty." (Emphasis added.)
The court, in Monaghan, at page 195, said that "[t]he amount recoverable is, of course, the amount of compensation the employee would have received had he not been wrongfully excluded from his employment, which amount is subject to reduction `* * * by the amount he earned or in the exercise of due diligence could have earned in appropriate employment during the period of exclusion.' State, ex rel. Wilcox, v. Woldman, supra ( 157 Ohio St. 264), paragraph one of syllabus."
The record, in the instant case, indicates that the amount of compensation relator was entitled to for the period of time he was excluded from work ($18,796.76) and the amount of money he earned elsewhere during such period ($5,959.89) were established with certainty. In addition, this court concludes from the record that relator exercised due diligence to obtain appropriate employment during the period of exclusion from his position. See Monaghan, supra, at 196.
Accordingly, the judgment of the Court of Appeals is reversed and the writ prayed for is allowed, and respondent is ordered to pay the compensation due relator for the period of his wrongful exclusion from employment, in the amount of $12,836.87, with interest at the rate of six percent.
Judgment reversed and writ allowed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.