Summary
In Guerrero, this court held that unemployment compensation benefits should be deducted from back pay awarded to a reinstated public employee who had been unlawfully excluded from employment.
Summary of this case from Civ. Rights Comm. v. David Richard Ingram, D.COpinion
No. 81-1377
Decided October 21, 1981.
Mandamus — Public employees — To recover back pay and lost benefits — Action maintainable, when — Amount recoverable — Ascertained, how.
IN MANDAMUS.
This cause arises from the action of the Controlling Board on January 26, 1981, of transferring the appropriations of numerous state agencies for fiscal year 1981 to fiscal year 1980. The Commission on Spanish Speaking Affairs (Commission) was one of the agencies subject to the Controlling Board's action. The transfer caused the Commission's 1981 operating funds to lapse and the Commission was forced to lay off its director, Andre Guerrero, and its employees, Virginia Ortega and Julia Haywood, relators herein.
Due to our decision in State, ex rel. Meshel, v. Keip (1981), 66 Ohio St.2d 379, the Controlling Board recredited the Commission's account with the 1981 appropriation which had been unlawfully transferred, and relators were reinstated to their positions.
Relators were unemployed from February 14, 1981, to June 13, 1981, and received unemployment compensation during that time. Respondent, Auditor of State, upon advice of the Attorney General, refused to issue the warrants for relators' back pay.
Relators instituted this action in mandamus, requesting the issuance of a writ to compel respondent to issue warrants for their back pay, to restore vacation and sick leave earned during their layoff and to pay the sum of $500 each for lost medical coverage.
Messrs. Wilkowski Bloom and Mr. Arthur Wilkowski, for relators. Mr. William J. Brown, attorney general, and Ms. Colleen K. Nissl, for respondent.
It is well-settled that "[a]n 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 his employment, provided the amount recoverable is established with certainty." State, ex rel. Martin, v. Columbus (1979), 58 Ohio St.2d 261, paragraph one of the syllabus. It is undisputed herein that the action of the Controlling Board in transferring the Commission's funds was unlawful, and that relators' layoff would not have occurred but for that action. We find, therefore, that relators are entitled to back pay.
The method of determining the amount of back pay recoverable was set forth in Monaghan v. Richley (1972), 32 Ohio St.2d 190, at 195: "* * * The 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 the syllabus."
The parties have stipulated to the amounts relators would have earned during the period of their layoff and to the amounts relators received in unemployment compensation. Since the state cannot be required to pay twice, State, ex rel. Crockett, v. Robinson (1981), 67 Ohio St.2d 363, at 368, relators' back pay award is to be reduced by the amount received in unemployment benefits.
Relators also claim entitlement to a credit of vacation and sick leave they would have earned during their layoff. However, since these days cannot be established with certainty, they cannot be credited to relators. Id., at 368-369. Similarly, relators' claim for lost medical coverage is denied.
Accordingly, the writ prayed for is denied as to the restoration of vacation and sick leave and as to lost medical coverage. The writ prayed for is allowed as to back pay, reduced by the amount received in unemployment benefits.
Writ allowed in part and denied in part.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, C. BROWN and KRUPANSKY, JJ., concur.
HOLMES, J., dissents.