State ex rel. Chuvalas v. Tompkins - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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THE STATE EX REL. CHUVALAS, APPELLANT, v. TOMPKINS, DIRECTOR, APPELLEE.
[Cite as State ex rel. Chuvalas v. Tompkins (1998), ___ Ohio St.3d ___.]
Mandamus to compel Director of Department of Human Services to reinstate
relator to her prior position in the Support Enforcement Tracking Systems
and Direct Services Unit -- Writ denied, when.
(No. 97-2233 -- Submitted June 24, 1998 -- Decided September 23, 1998.)
APPEAL from the Court of Appeals for Franklin County, No. 96APD10-1331.

Appellant, Sharon Chuvalas, is a classified civil service employee of the
Ohio Department of Human Services ("DHS"). Chuvalas held the job
classification title of Human Services Program Administrator 3 and served as the
Administrative Chief of the Child Care Program Development Section of the DHS
Bureau of Child Care.

Chuvalas filed a notice of appeal with the State Personnel Board of Review
("board"), alleging that, contrary to law, DHS reduced her position by changing
her job duties. In August 1995, Chuvalas and DHS entered into an "Agreed
Entry/Settlement Agreement and Release" concerning the appeal and filed it with
the board. Under the settlement agreement, DHS agreed to transfer Chuvalas to
position control number 74001.2(22) in the Support Enforcement Tracking
Systems & Direct Services Unit ("SETS") of the DHS Child Support Enforcement
Division, and Chuvalas waived her right to her former position. The parties
agreed that Chuvalas's job classification title would remain as Human Services
Program Administrator 3. Both Chuvalas and DHS requested that the board make
their agreed entry, which included their settlement agreement and release, a board
order.

Shortly thereafter, the board entered an order of dismissal. In its order, the
board, after noting that the parties' settlement agreement had been signed and

incorporated into the record, ruled that "[b]ased on the fact that the parties have
settled this matter, the Board hereby orders that this appeal be DISMISSED." The
board did not adopt the agreed entry as part of its order.

Pursuant to the settlement agreement, DHS transferred Chuvalas into
position control number 74001.2(22) with SETS in August 1995. At the time of
her transfer, the sole focus of SETS was its preparation for a federal certification
review. SETS is a statewide automated system that permits case management of
child support cases. The certification review required all SETS staff, including
management, to complete tasks ranging from high-level systems work to minor
clerical duties. According to her supervisor, Chuvalas lacked the knowledge to
immediately perform the duties of her position description, although she had been
provided with the requisite training materials.

In October 1995, Chuvalas voluntarily left SETS to go to the Bureau of
JOBS Unit in the DHS Family Assistance and Child Support Division. When
Chuvalas left SETS, DHS dissolved position control number 74001.2(22) because
existing staff already handled some of these duties and the remaining specified
duties were not critical to the certification review.

In May 1997, DHS transferred Chuvalas to its Bureau of Employer
Outreach and Linkage. Despite the transfers, Chuvalas kept her job classification
title of Human Services Program Administrator 3, and her salary and benefits
remained the same.

After Chuvalas complained to DHS that it had failed to abide by the terms
of the settlement agreement and board order by not employing her in position
control number 74001.2(22) with SETS, she filed a complaint in the Court of
Appeals for Franklin County. In her complaint, as subsequently amended,
Chuvalas requested a writ of mandamus to compel appellee, DHS Director Arnold

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Tompkins, to reinstate her to position control number 74001.2(22) in SETS and to
assign her the duties associated with that position. The parties submitted evidence
and briefs.

The court of appeals denied the writ.

This cause is now before the court upon an appeal as of right.
__________________

Suzanne M. Stasiewicz, for appellant.

Betty D. Montgomery, Attorney General, and Margaret A. Telb, Assistant
Attorney General, for appellee.
__________________

Per Curiam. In her sole proposition of law, Chuvalas asserts that the court
of appeals erred in denying the writ because extraordinary relief in mandamus is
appropriate when a public employer like DHS fails to comply with a State
Personnel Board of Review order.

For the following reasons, however, this assertion lacks merit, and the court
of appeals correctly denied the writ.

First, DHS complied with the board's order. The board never adopted the
parties' agreed entry and settlement agreement as a board order. Instead, the board
merely noted that the agreement had been filed with it and relied on the fact that
the parties had settled Chuvalas's appeal. DHS also initially placed Chuvalas in
the SETS position specified by the settlement agreement.

Second, Chuvalas waived any right she had under the settlement agreement
to the SETS position when she voluntarily left SETS for a different position. "
`As a general rule, the doctrine of waiver is applicable to all personal rights and
privileges, whether secured by contract, conferred by statute, or guaranteed by the
Constitution, provided that the waiver does not violate public policy.' " Sanitary

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Commercial Serv., Inc. v. Shank (1991), 57 Ohio St.3d 178, 180, 566 N.E.2d 1215,
1218, quoting State ex rel. Hess v. Akron (1937), 132 Ohio St. 305, 307, 8 O.O.
76, 77, 7 N.E.2d 411, 413.

Third, to the extent that Chuvalas asserts that DHS's actions constitute a
wrongful reduction in her position, she had an adequate remedy in the ordinary
course of law by way of administrative appeal under R.C. 124.34. " `Where a
constitutional process of appeal has been legislatively provided, the sole fact that
pursuing such process would encompass more delay and inconvenience than
seeking a writ of mandamus is insufficient to prevent the process from constituting
a plain and adequate remedy in the ordinary course of the law.' " State ex rel.
Toledo Metro Fed. Credit Union v. Ohio Civ. Rights Comm. (1997), 78 Ohio St.3d
529, 532, 678 N.E.2d 1396, 1398, quoting State ex rel. Willis v. Sheboy (1983), 6
Ohio St.3d 167, 6 OBR 225, 451 N.E.2d 1200, paragraph one of the syllabus.
Mandamus may not be employed as a substitute for a civil service appeal. State ex
rel. Minor v. Eschen (1995), 74 Ohio St.3d 134, 136, 656 N.E.2d 940, 943.

Finally, contrary to Chuvalas's contention on appeal, the court of appeals
could properly consider the affidavits attached to appellee's brief filed in that
court in its merit determination. Chuvalas waived any objection to these affidavits
by not moving to strike them or otherwise specifying their alleged impropriety.
See, e.g., Evid.R. 103(A)(1); cf. State ex rel. Spencer v. E. Liverpool Planning
Comm. (1997), 80 Ohio St.3d 297, 301, 685 N.E.2d 1251, 1255 (" `While the
court of appeals may consider evidence other than that listed in Civ.R. 56 when
there is no objection, it need not do so.' ").

Based on the foregoing, we affirm the judgment of the court of appeals
denying the requested extraordinary relief in mandamus.
Judgment affirmed.

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