Opinion
No. 86-1538
Decided August 19, 1987.
Public employment — Mandamus action to compel employer to abide by disposition issued by grievance review committee — Adequate remedy by way of appeal to State Personnel Board of Review exists, when.
APPEAL from the Court of Appeals for Wood County.
Relator-appellant, Sylvia Dill, is a Secretary II, in the classified civil service, and is employed by respondent Bowling Green State University, a public institution. Appellant alleges that as a result of a reorganization, she was reduced in position to the extent that it would be considered a demotion if there were an audit. As a result of that reduction, on October 31, 1985, appellant filed a grievance with the university which was heard by the Employee Relations Review Committee ("review committee"), under the employee complaint procedure.
On February 10, 1986, the review committee issued its recommended disposition of the grievance. The majority opinion of the review committee stated, in pertinent part, that "* * * the reorganization of the College Office was not done in accordance with normal, recognized purposes and violated the individual rights of Ms. Dill. The majority recommends that Ms. Dill be returned to her original position in the College Office." Nevertheless, respondent failed to implement the decision of the review committee.
Appellant petitioned the Court of Appeals for Wood County on April 9, 1986 to issue a writ of mandamus to compel respondents to abide by the review committee's decision and to award appellant her former position, lost back pay, costs, and attorney fees. Respondents filed a motion to dismiss asserting that appellant had an adequate remedy at law under R.C. 124.34. On July 24, 1986, the court of appeals sustained appellees' motion to dismiss, finding that appellant had an adequate remedy at law by way of appeal to the State Personnel Board of Review ("SPBR").
Prior to journalization of the court of appeals' decision from which this appeal was taken, appellant had instituted an action with the SPBR. On or about May 21, 1986, an administrative law judge issued the following report and recommendation, which was subsequently adopted by the SPBR:
"Therefore, I find that Appellant has established that an improper reduction in position has taken place and that such reduction should be DISAFFIRMED. I FURTHER RECOMMEND that the Board ORDER Appellee to restore [to] Appellant those duties which are necessary to make her functions consistent with that of a Secretary 2."
The cause is now before this court upon an appeal as a matter of right.
Lucas, Prendergast, Albright, Gibson Newman and James E. Melle, for appellant.
Anthony J. Celebrezze, Jr., attorney general, and John G. Mattimoe, special counsel, for appellees.
This court has consistently held that in order for a writ of mandamus to issue, a relator must demonstrate (1) that there is a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the requested acts, and (3) that relator has no plain and adequate remedy in the ordinary course of the law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50, 451 N.E.2d 225.
Appellant acknowledges that she, as a classified civil service employee, had a right to file an appeal with the SPBR contesting an adverse personnel action even though the employer failed to file an order with the SPBR. However, she also urges that, as a non-union employee, she may enforce the decision of the review committee by way of an action for a writ of mandamus. Thus, she contends that she has two remedies — one by agreement between the employer and its employees and the other by statute. Appellant urges that her action by way of statute does not impede her right to seek a writ of mandamus ordering respondent to reinstate her pursuant to the recommendation of the review committee.
We note that appellant does not dispute that she pursued such an appeal to the SPBR.
"It is firmly established that the writ of mandamus will not issue `* * * where the relator has or had available a clear, plain and adequate remedy in the ordinary course of the law.' * * *" State, ex rel. Berger, supra, at 30, 6 OBR at 51, 451 N.E.2d at 227. "Moreover, it is axiomatic that a `* * * discretionary right of appeal * * * [constitutes] a sufficiently plain and adequate remedy in the ordinary course of the law.' * * *" Id. at 30, 6 OBR at 52, 451 N.E.2d at 227. Here, relator had a plain and adequate remedy at law by way of appeal to the SPBR. The existence of this remedy of appeal divests this court of jurisdiction to consider mandamus relief with respect to the grievance procedure.
We have repeatedly held that when a complaint "stating a proper cause of action in mandamus is filed originally in the Supreme Court or in the Court of Appeals, and it is determined that the relator has a plain and adequate remedy in the ordinary course of the law by way of appeal, neither the Supreme Court nor the Court of Appeals has authority to exercise jurisdictional discretion, but those courts are required to deny the writ." State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O. 2d 141, 228 N.E.2d 631, paragraph three of the syllabus; State, ex rel. Middletown Bd. of Edn., v. Butler Cty. Budget Comm. (1987), 31 Ohio St.3d 251, 31 OBR 455, 510 N.E.2d 383.
Based on the foregoing, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, WRIGHT, and H. BROWN, JJ., concur.
DOUGLAS, J., concurs in judgment only.