[Cite as Geisel v. Dayton, 2018-Ohio-512.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 SHAWN M. GEISEL                                   :
                                                   :
         Plaintiff-Appellant                       :   Appellate Case No. 27645
                                                   :
 v.                                                :   Trial Court Case No. 2016-CV-5102
                                                   :
 CITY OF DAYTON, OHIO, et al.                      :   (Civil Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellee                        :
                                                   :

                                              ...........

                                             OPINION

                           Rendered on the 9th day of February, 2018.

                                              ...........

TERRY W. POSEY, Atty. Reg. No. 0039666, 10 North Ludlow Street, Suite 950, Dayton,
Ohio 45402
      Attorney for Plaintiff-Appellant

NORMA M. DICKENS Atty. Reg. No. 0062337, 101 West Third Street, P.O. Box 22,
Dayton, Ohio 45401
      Attorney for Defendant-Appellee

                                             .............




TUCKER, J.
                                                                                              -2-




       {¶ 1} Plaintiff-appellant, Shawn M. Geisel, appeals from the trial court’s decision

of June 6, 2017, in which the court upheld an order of the Civil Service Board of the City

of Dayton, Ohio (the “Board”) affirming his involuntary demotion from Firefighter Recruit

to Emergency Medical Technician—Basic.             In a single assignment of error, Geisel

argues that his demotion violates state and federal law; that his demotion did not comply

with the Rules and Regulations of the Civil Service Board for the City of Dayton, Ohio;

that the order issued by the Board is unreasonable; and that the Board could grant the

relief he seeks, regardless of the Board’s determination to the contrary. Although our

analysis differs, we concur with the trial court’s conclusion that Geisel’s demotion was

permissible, and we therefore affirm.

                              I. Facts and Procedural History

       {¶ 2} In 2012, Geisel sat for an open competitive examination to become a

firefighter with the Dayton Fire Department. Appellee’s Br. 2. He received a passing

score, and his name was placed on the list of candidates eligible for the position of

Firefighter Recruit. See id.

       {¶ 3} Pursuant to the Rules and Regulations of the Civil Service Board for the City

of Dayton, Ohio (the “Rules”), the names of candidates for a given position within the

“competitive class” of the “classified service” are entered onto an eligibility list “in order of

rank,” which is determined largely by the candidates’ examination scores.1 See Rule 3,


1  Candidates who have either “been honorably discharged from service with any branch
of the United States military” or “satisfactorily completed six * * * or more months of full-
time employment with the City” are “entitled to have five * * * preference points” added to
their examination scores under Rule 6, Section 11. No candidate may receive more than
five preference points. Id.
                                                                                           -3-


Section 2(A); Rule 8, Sections 1(A) and 3.         The eligibility list thus determines the

sequence in which candidates may be hired to fill vacancies in the position. See Rule 8,

Section 3. Firefighter Recruit is a competitive position in the classified service. R. at

14.2

        {¶ 4} Eligibility lists generally remain valid for one year, subject to a number of

exceptions; with respect to “competitive examinations for safety forces positions,” the

Board “may extend the period of [a list’s validity] on a year [by] year basis, provided [that]

the total period of [validity does] not exceed four * * * years.”3 Rule 8, Section 7(C). The

relevant list in this case seems to have expired on September 30, 2015.4 R. at 132-133.

        {¶ 5} In 2013, while Geisel waited for Firefighter Recruit positions to become

available, the City hired him as an Emergency Medical Technician—Basic.                  See

Appellant’s Br. 4; Appellee’s Br. 2. The City subsequently promoted him to Firefighter

Recruit for the training program that began on January 11, 2016. Id.; see also R. at 108

(describing the program).

        {¶ 6} Geisel suffered a knee injury during physical training on March 18, 2016,

rendering him unable to complete the program, which was slated to end on June 24, 2016.

See Appellant’s Br. 4-5; Appellee’s Br. 2-3. As a result, the chief of the Dayton Fire

Department recommended in a memorandum dated April 18, 2016, that Geisel be



2  The Board filed the Transcript of Record with the trial court on November 17, 2016, but
it did not include a formal certification or indicate the date on which the transcript was
prepared.
3   The Rules do not define the term “safety forces.”
4  The record does not establish the date on which the list’s validity began to run, nor does
it include documentation corroborating the date on which the list’s validity ended.
                                                                                         -4-


involuntarily demoted to his previous position. R. at 3. On May 5, 2016, the Board’s

Secretary and Chief Examiner formally “certif[ied] [that Geisel’s demotion was] approved

as procedurally correct by the * * * Board pursuant to * * * Rule 10, Section 5 [and] Rule

13, Sections 1[-]2.” R. at 2.

       {¶ 7} Geisel appealed to the Board under Rule 14, and in its order of September

2, 2016, the Board affirmed. On October 3, 2016, Geisel initiated an administrative

appeal under R.C. 124.34 in the trial court, which likewise held that his “demotion was

effective under [the] [R]ules.” Decision Affirming Order of the Civil Service Bd. 4, June

6, 2017. Geisel timely appealed to this court on June 30, 2017.

                                       II. Analysis

       {¶ 8} In an appeal under R.C. 124.34, an appellate court reviews the decision of a

common pleas court “under [the] abuse of discretion standard.” Baron v. Civil Service

Bd. of the City of Dayton, 2d Dist. Montgomery No. 25273, 2012-Ohio-6179, ¶ 19, citing

City of Sandusky v. Nuesse, 11th Dist. Erie No. E-10-039, 2011-Ohio-6497, ¶ 47. The

term “ ‘abuse of discretion’ [is] defined as an attitude that is unreasonable, arbitrary, or

unconscionable.” Feldmiller v. Feldmiller, 2d Dist. Montgomery No. 24989, 2012-Ohio-

4621, ¶ 7, citing Huffman v. Hair Surgeons, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248

(1995).

       {¶ 9} The sole assignment of error presented for our review is the following:

              MR. GEISEL’S DEMOTION, AS AFFIRMED BY THE CIVIL

       SERVICE BOARD’S DECISION AND THE TRIAL COURT’S DECISION,

       WAS ILLEGAL, UNREASONABLE, AND UNSUPPORTED BY THE

       EVIDENCE.        ACCORDINGLY,        THE     TRIAL    COURT     ERRED      IN
                                                                                           -5-


         UPHOLDING THE DEMOTION.5

Appellant’s Br. 6.

         {¶ 10} Geisel offers a series of arguments in favor of this premise. First, he faults

the Board for applying the Rules “in a manner which violates state and federal

employment law” and which is contrary to the “public policy of the State of Ohio.” Id.

Second, he suggests that his demotion never became effective because a majority of the

Board did not issue an approval.        See id. at 7. Third, he contends that the Board

concluded incorrectly that Rule 12, Section 3 permitted his demotion. Id. at 8-9. Fourth,

he characterizes the Board’s order as “unreasonable” because it has resulted in a

“permanent * * * demotion” for a “temporary” medical condition. Id. at 10. Finally, he

insists that if the Board lacks authority to add his name to the next eligibility list for the

position of Firefighter Recruit, then his appeal to the Board under Rule 14 was “illusory

and meaningless.” See id.

         {¶ 11} Regarding Geisel’s first argument, his reliance on the Family and Medical

Leave Act (“FMLA”) is misplaced because he did not actually take or request medical

leave; instead, he continued to report for work on restricted duty. See 29 U.S.C. 2613

and 2614; see also R. at 92-97; Appellant’s Br. 4-5. The Board, then, cannot have

“denied [him] FMLA benefits to which [he] was entitled” because he never sought to

exercise his rights under the act. See, e.g., 29 U.S.C. 2601(b)(1)-(2) (stating that the

“purpose[s]” of the act are, among other things, “balanc[ing] the demands of the

workplace with the needs of families”; promoting the “stability and economic security of

families”; and entitling “employees to take reasonable leave for medical reasons,”


5   Geisel did not expressly designate an assignment of error in his brief.
                                                                                           -6-

including the care of children, parents and spouses); Walton v. Ford Motor Co., 424 F.3d

481, 485 (6th Cir.2005) (listing elements of an FMLA claim).

       {¶ 12} Geisel similarly overstates the significance of the Ohio Supreme Court’s

decision in Coolidge v. Riverdale Local Sch. Dist., 100 Ohio St.3d 141, 2003-Ohio-5357,

797 N.E.2d 61. In that case, the issue before the Court was “whether discharges for

absenteeism caused by allowed workers’ compensation injuries are violative of public

policy in the absence of retaliatory motive[s].” (Emphasis added.) Id. at ¶ 25. After

reviewing selected precedent, the Court held that an “employee who is receiving

temporary total disability compensation pursuant to R.C. 4123.56 may not be discharged

solely on the basis of absenteeism or inability to work, [if] the absence or inability to work

is directly related to an allowed condition.” Id. at syllabus.

       {¶ 13} The holding in Coolidge is nearly irrelevant here, however, because Geisel

was not totally disabled, was not receiving temporary total disability compensation at the

time of his demotion, and was not discharged from employment. For that matter, Geisel

has not alleged that the Board had a retaliatory motive for approving his demotion, nor

has he alleged that the Board took this action to punish him for “fil[ing] a claim or

institut[ing], pursu[ing] or testif[ying] in any proceeding[] under the workers’ compensation

act.” R.C. 4123.90.

       {¶ 14} Regarding Geisel’s second argument, Rule 10, Section 5 states that an

“employee who has served an initial probationary period,” i.e., a current employee with a

position “in the competitive or noncompetitive class,” must complete “an additional six[-]

month probationary period upon promotion or appointment to a new classification.”

Further, if the employee’s performance is deemed “unsatisfactory,” the “department
                                                                                             -7-


director may submit to the Board a recommendation for [the employee’s] removal from

the position” pursuant to Rule 10, Section 5(A)-(B). Under Rule 10, Section 5(A), an

“employee who fails to qualify [for a position] during [a] probationary period following

promotion has the right to return to [his] last previous classification, or to an equal or lower

position for which [he is] qualified,” so long as the employee’s return to his previous

position does “not cause the displacement or reduction” of another employee.

       {¶ 15} Geisel contends that a demotion under Rule 10, Section 5(A) cannot take

effect without a majority vote by the Board pursuant to Rule 10, Section 2. Rule 10,

Section 1 mandates that all “persons initially appointed in the competitive or

noncompetitive class shall [complete] a probationary period.” Under Rule 10, Section 2,

the “initial probationary period shall be for six * * * months,” and a “probationary employee

may be discharged at any time within said period of six * * * months upon the

recommendation of the director of the [probationary employee’s] department or agency *

* *, with the approval of the City Manager and the majority of the Board.” Yet, Geisel

was not a person “initially appointed in the competitive or noncompetitive class”; rather,

at the time of his promotion to Firefighter Recruit, he was an “employee who [had already]

served an initial probationary period,” making him “subject to an additional six[-]month

probationary period,” not an “initial probationary period.” (Emphasis added.) Rule 10,

Sections 1, 2 and 5; Appellant’s Br. 4. In other words, Rule 10, Section 2 did not apply

to Geisel.

       {¶ 16} Although Rule 10, Section 5, which certainly did apply to Geisel, refers to

the department director’s submission of a “recommendation” to the Board, it fails to

specify how the Board should respond. The trial court found that the rule “did not require
                                                                                         -8-


the approval of the majority of the Board,” but it not provide a rationale for its finding.

Decision Affirming Order of the Civil Service Bd. 4. According to the Board itself, Geisel’s

demotion did not require “full Board approval” because Rule 12 “require[d] [only] that [it]

be notified of the demotion.” R. at 132.

        {¶ 17} We agree that Rule 10, Section 5 did not require the Board’s approval of

Geisel’s demotion by majority vote. Even so, the rule’s provision allowing a department

director to “submit to the Board a recommendation” for an employee’s demotion would be

essentially meaningless were the Board’s approval (or disapproval) not required in some

form. For instance, were the “recommendation” simply a matter of record-keeping, the

rule presumably would require only that the Board “be notified,” as is the case for

involuntary demotions because of physical incapacity pursuant to Rule 12, Section 3. In

any event, the Board did issue an approval of the recommendation to demote Geisel

through its Secretary and Chief Examiner, who certified that that the “action [was]

approved as procedurally correct” by the Board. R. at 2. Absent explicit instructions on

how the Board should respond to a recommendation to demote, the rule required little

else.

        {¶ 18} In its decision, the trial court found that “Rule[s] 12 and 13 also permitted

[Geisel’s] demotion.” Decision Affirming Order of the Civil Service Bd. 4. We find that

the trial court was mistaken to this extent. Notwithstanding that both of these rules refer

to the possibility of employees being demoted for physical incapacity, neither of them

makes any reference to employees in probationary periods—initial or otherwise.

Because Rule 10, Section 5 relates specifically to the demotion of an employee serving

an additional probationary period subsequent to his initial hire, we conclude that Rule 10,
                                                                                         -9-

Section 5 controls over the comparatively general provisions of Rules 12 and 13. See,

e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 524, 109 S.Ct. 1981, 104 L.Ed.2d

557 (1989); Quality Ready Mix, Inc. v. Mamone, 35 Ohio St.3d 224, 226-227, 520 N.E.2d

193 (1988); Cyphers v. Balzer, 2d Dist. Montgomery No. 22182, 2007-Ohio-6133, ¶ 55-

58.

       {¶ 19} Regarding Geisel’s third argument, he criticizes the Board’s citation to Rule

12, Section 3 in its order affirming his demotion. Appellant’s Br. 8. Rule 12, Section 3

states that an employee who “becomes temporarily or permanently incapacitated” may

be demoted “to a position in a lower grade for which [he] is qualified, and which is within

[his] physical capabilities.” By Geisel’s reckoning, he could not have been demoted

validly under this rule because, at the time of the demotion, he lacked the physical

capability to resume his duties as an Emergency Medical Technician—Basic.

Appellant’s Br. 8.   Irrespective of the Board’s reference to Rule 12 in its order, the

certification that effected Geisel’s demotion appropriately cited the authority of “Rule 10,

Section 5,” as well as Rule 13, Sections 1-2, and we have already determined that the

demotion was proper on that basis.

       {¶ 20} Regarding Geisel’s fourth argument, he describes his demotion as

“unreasonable” because it resolved a temporary problem with a permanent solution.

See Appellant’s Br. 10. He worries that he might not have a second opportunity to

become a Firefighter Recruit because he is approaching the age limit established by Rule

9, Section 1(H)-(I), and because a candidate may have to wait years for appointment to

a position after taking a competitive examination and being placed on an eligibility list.

See id. Geisel’s problem, however, was not “temporary,” even though his injuries did not
                                                                                         -10-


produce permanent impairments.

       {¶ 21} Pursuant to Rule 10, Section 5, Geisel had six months from the date of his

appointment to Firefighter Recruit in which to “qualify,” or in other words, to complete his

recruit training. The rule does not invest an employee who fails to qualify during this six-

month period with the right to make subsequent attempts without interruption, meaning

that Geisel’s appointment to Firefighter Recruit was, in plain language, a one-shot

opportunity.6 Moreover, despite the age limitation stated in Rule 9, Section 1(H)-(I), the

official “City of Dayton Position Description” for the position of “Firefighter Recruit”

declares that “[r]ecruit candidates who have previously been appointed as a [f]irefighter

in the State of Ohio may be over the age of 41.”7 R. at 108-111.

       {¶ 22} Regarding Geisel’s final argument, the trial court observed that, “[s]adly,

according to the [R]ules, [he] did not have the right to participate in the January 2017

recruit class.” Decision Affirming Order of the Civil Service Bd. 5. Geisel posits that

appeals to the Board under Rule 14 would be “useless” if the Board lacked the authority

to place him in another class of recruits.

       {¶ 23} We concur with the trial court’s observation that the Board did not have the

authority to contravene the Rules’ provisions on eligibility and the sequence in which

candidates are appointed from eligibility lists.    Nevertheless, by “special resolution


6 We do not mean to imply that Geisel could not reapply for the position, but only that his
appointment to Firefighter Recruit was a self-contained opportunity that did not entail a
right to be reappointed or to continue as a recruit until he could complete the training
program.
7 Geisel served in the past as a volunteer firefighter for the Bethel Fire Department in
Miami County. Appellant’s Br. 4. We take no position on whether Geisel’s volunteer
service is the equivalent of being “appointed as a [f]irefighter” for purposes of the above-
cited position description.
                                                                                      -11-


approved by the City Commission, the Board may suspend any specific provision of [the]

Rules.”   Rule 1, Section 2.       Thus, we conclude that the relief Geisel seeks is

theoretically available to him, and by extension, that his appeal to the Board under Rule

14 was not futile.

                                      III. Conclusion

       {¶ 24} Although we do not concur fully with the trial court’s analysis, we concur

with the decision to uphold the Board’s demotion of Geisel. Therefore, Geisel’s sole

assignment of error is overruled, and the decision of the trial court is affirmed.



                                      .............



HALL, J., concurs.

FROELICH, J., concurring in judgment only.



Copies mailed to:

Terry W. Posey
Norma M. Dickens
Hon. Steven K. Dankof
