[Cite as State ex rel. Stultz v. Columbus City School Dist. Bd. of Edn., 2019-Ohio-599.]

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


The State ex rel. Steven L. Stultz,                      :

                 Relator,                                :

v.                                                       :                         No. 17AP-656

Columbus City School District                            :                   (REGULAR CALENDAR)
Board of Education,
                                                         :
                 Respondent.
                                                         :



                                             D E C I S I O N

                                     Rendered on February 19, 2019


                 On brief: Matthew M. Banal, for relator.

                 On brief: Wanda T. Lillis, for respondent.

                                   IN MANDAMUS
                     ON OBJECTION TO THE MAGISTRATE'S DECISION

LUPER SCHUSTER, J.
        {¶ 1} Relator, Steven L. Stultz, initiated this original action requesting this court
issue a writ of mandamus ordering respondent, Columbus City School District Board of
Education, to provide him back pay pursuant to the April 3, 2017 decision of the Columbus
Civil Service Commission that modified Stultz's October 20, 2015 discharge to a 30-day
suspension without pay.
        {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53(C)
and Loc.R. 13(M) of the Tenth District Court of Appeals. On June 18, 2018, the magistrate
issued a decision including findings of fact and conclusions of law. The magistrate's
No. 17AP-656                                                                                 2


decision, which is appended hereto, recommends this court deny Stultz's request for a writ
of mandamus.
       {¶ 3} Stultz has filed an objection to the magistrate's decision. Therefore, we must
independently review the decision to ascertain whether "the magistrate has properly
determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d).
Stultz does not challenge the magistrate's recitation of the pertinent facts; however, he
objects to the magistrate's conclusion that respondent has met its burden of proof related
to the affirmative defense of mitigation of damages.
       {¶ 4} As the magistrate noted, a reinstated public employee may maintain a
mandamus action to recover back pay " 'provided the amount recoverable is established
with certainty.' " State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn., 105 Ohio
St.3d 476, 2005-Ohio-2974, ¶ 28, quoting State ex rel. Martin v. Bexley City School Dist.
Bd. of Edn., 39 Ohio St.3d 36, 37 (1988). "The term 'with certainty' generally refers to
'whether a particular amount has been precisely determined as to its value in dollars and
cents.' " Stacy at ¶ 28, quoting State ex rel. Hamlin v. Collins, 9 Ohio St.3d 117, 120 (1984).
       {¶ 5} Here, the record does not support a finding that there has been a precise
determination of a particular dollar amount of back pay respondent owes to Stultz. Instead,
the record indicates lack of consensus on the dates Stultz is entitled to back pay. "When the
underlying material facts are in dispute, the appropriate remedy for a public employee is
not mandamus, but a declaratory judgment to establish the amount owed." State ex rel.
Manley v. Walsh, 142 Ohio St.3d 384, 2014-Ohio-4563, ¶ 26, citing State ex rel. Bossa v.
Giles, 64 Ohio St.2d 273, 276 (1980). Thus, the amount recoverable has not been
established "with certainty," and as a result, Stultz's request for a writ of mandamus must
fail. Stacy at ¶ 28.
       {¶ 6} In analyzing Stultz's objection to the magistrate's decision, Stultz has
misconstrued the magistrate's decision as confirming Stultz is definitively entitled to back
pay from the period of October 20, 2015 through April 7, 2017. Stultz then relies on this
flawed premise to object to the magistrate's application of the affirmative defense of
mitigation of damages. We clarify here that because the amount owed to Stultz has not
been established "with certainty" his action in mandamus fails solely on that basis. Until
there is an amount recoverable established with certainty, the issue of mitigation of
No. 17AP-656                                                                             3


damages has no application. Thus, we agree with the magistrate that Stultz's requested writ
of mandamus be denied, but for more limited reasons than the magistrate expressed in his
decision. Accordingly, we reject Stultz's challenge to the magistrate's decision.
       {¶ 7} Following our independent review of the record pursuant to Civ.R. 53, we find
the magistrate correctly determined Stultz is not entitled to the requested writ of
mandamus. Accordingly, we adopt the magistrate's factual findings, and, as outlined above,
we adopt the magistrate's conclusions of law as modified. Therefore, we overrule Stultz's
objection to the magistrate's decision and deny his request for a writ of mandamus.
                                           Objection overruled; writ of mandamus denied.

                          DORRIAN and BRUNNER, JJ., concur.
No. 17AP-656                                                                              4


                                       APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

The State ex rel. Steven L. Stultz,             :

               Relator,                         :

v.                                              :                  No. 17AP-656

Columbus City School District                   :            (REGULAR CALENDAR)
Board of Education,
                                                :
               Respondent.
                                                :


                          MAGISTRATE'S DECISION

                                 Rendered on June 18, 2018


               Matthew M. Banal, for relator.

               Wanda T. Lillis, for respondent.


                                      IN MANDAMUS

       {¶ 8} In this original action, relator, Steven L. Stultz, requests a writ of mandamus
ordering respondent, Columbus City School District Board of Education, to render to him
back pay pursuant to the April 3, 2017 decision of the Columbus Civil Service Commission
that modified respondent's October 20, 2015 discharge to a 30-day suspension without
pay.
Findings of Fact:
       {¶ 9} 1. On September 4, 2013, respondent hired relator to the position of food
service helper. This part-time position required the employee to work three hours per day
while school was in session. According to respondent's screenshot of relator's employment,
No. 17AP-656                                                                            5


relator was required to work 193 days per school year for a total of 579 hours during the
school year.
        {¶ 10} 2. Two school years are at issue here. Respondent's school calendar for the
2015-2016 school year begins for students on August 26, 2015 and ends June 2, 2016.
Respondent's school calendar for the 2016-2017 school year begins for students on
August 24, 2016 and ends June 1, 2017.
        {¶ 11} 3. As a regular part-time employee, relator was subject to a collective
bargaining agreement. Pertinent here is Article 15.3(C) of the agreement which provides in
part:
               Employees who have been out of work on account of illness
               for fifteen (15) consecutive workdays or longer, must have the
               approval of the Superintendent before returning to work.
               Such approval shall be secured through the School Physician
               after he/she has received a confidential report from the
               personal physician of the absent employee, indicating the
               nature of the illness and the condition of the employee.

        {¶ 12} 4. On September 23, 2015, attending physician, Robert L. Aurand, M.D.,
completed a form provided by the U.S. Department of Labor. The four-page form is
captioned "Certification of Health Care Provider for Employee's Serious Health Condition
(Family and Medical Leave Act)."        Apparently, Dr. Aurand practices at a Veteran's
Administration Clinic located in Columbus, Ohio.
        {¶ 13} Page two of the FMLA form is captioned "Part A: Medical Facts."
Thereunder, Dr. Aurand indicates that relator's medical condition is "chronic."
               At paragraph three of the form, the attending physician is instructed:
               If the employer fails to provide a list of the employee's
               essential functions or a job description, answer these
               questions based upon the employee's own description of
               his/her job functions.

        {¶ 14} Thereunder, the following query is posed: "Is the employee unable to
perform any of his/her job functions due to the condition."
               In response, Dr. Aurand marked the "No" box.
No. 17AP-656                                                                              6


         {¶ 15} At paragraph four of the form, the attending physician is instructed:
"Describe other relevant medical facts, if any, related to the condition for which the
employee seeks leave."
         {¶ 16} In response to the above instruction, in the space provided, Dr. Aurand
wrote:
               Vet with chronic low back pain, bilateral hip pain and left foot
               pain. Vet has been taking ibuprofen and gabapentin without
               much success. Vet reports feeling weakness and instability.
               Vet also reports having difficulty standing on his job. Chest x-
               ray ordered and gabapentin increased to 900mg 3 times daily
               at the 9-17-15 visit with Dr. Aurand. Vet declined physical
               therapy services on 6-16-15 after meeting with VA PT staff.

         {¶ 17} Page three of the FMLA form is captioned "Part B: Amount of Leave
Needed." Thereunder, at paragraph seven, the form poses the following query:
               Will the condition cause episodic flare-ups periodically
               preventing the employee from performing his/her job
               functions?

         {¶ 18} In response to the above query, Dr. Aurand marked the "Yes" box.
               Also, at paragraph seven, the form poses another query: "Is it medically
necessary for the employee to be absent from work during the flare-ups?"
               In response to the above query, Dr. Aurand marked the "Yes"
               box.

         {¶ 19} In the space provided, Dr. Aurand wrote: "Vet may be unable to work
during a flare-up of his chronic medical condition due to pain."
               Also at paragraph seven, the form poses yet another query:

               Based upon the patient's medical history and your knowledge
               of the medical condition, estimate the frequency of flare-ups
               and the duration of related incapacity that the patient may
               have over the next 6 months (e.g., 1 episode every 3 months
               lasting 1-2 days).

         {¶ 20} In response to the above query, Dr. Aurand listed a frequency of "1-2" times
per month and a duration of "1-2" days per episode.
No. 17AP-656                                                                         7


      {¶ 21} 5. On October 20, 2015, relator appeared at a hearing before respondent.
Thereafter, relator was informed by letter that he is discharged from his employment
effective October 20, 2015. The letter explains:
               This is to notify you that after the hearings held on the dates
               below you have been found guilty of the following charge and
               specification:

               Date: 10/20/15

               Charge: Neglect of Duty; Nonfeasance; Misfeasance; Job
               Abandonment; AWOL

               Specification: In that Mr. Stultz has demonstrated
               noncompliant conduct to include but not limited to: 1) Not
               reported to Columbus City School District Food Service
               Department for work as a Food Service Helper SY 15-16;
               2) Failed to appear (no call/no show) at a 9/14/15 hearing to
               address absenteeism which occurred in May 2015; 3) Failed
               to respond to a letter dated August 27, 2015 regarding his
               failure to return to work for SY 15-16; 4) Has demonstrated
               Absence Without Leave (AWOL) from a period of August 24,
               2015 through September 21, 2015 (20 consecutive work
               dates).

               Determination: It was determined that the charges of Neglect
               of Duty; Nonfeasance; Misfeasance; Job Abandonment and
               AWOL in that Mr. Stultz has neglected to report for work are
               Substantiated.

               You are hereby discharged from your position with the
               Columbus City Schools effective October 20, 2015.

               In accordance with Section 149-1 of the City Charter, you may
               appeal this order to the Civil Service Commission within ten
               (10) calendar days from this date.

(Emphasis sic.)

      {¶ 22} 6.    Relator administratively appealed respondent's October 20, 2015
discharge decision.
      {¶ 23} 7. Over one year later, on December 7, 2016, relator's appeal was heard by
a three-member trial board of the Columbus Civil Service Commission. Following the
No. 17AP-656                                                                              8


hearing, the trial board issued an eight-page written decision that was adopted by the
Columbus Civil Service Commission at a public meeting on April 3, 2017.
       {¶ 24} On the first page of the trial board's written decision, the "charges" and
"specifications" are identified:
               CHARGES: Neglect of Duty; Nonfeasance; Misfeasance; Job
               Abandonment; AWOL

               SPECIFICATIONS: In that Mr. Stultz has demonstrated
               noncompliant conduct to include but not limited to: 1) Not
               reported to Columbus City School District Food Service
               Department for work as a Food Service Helper SY 15-16;
               2) Failed to appear (no call/no show) at a 9/14/15 hearing to
               address absenteeism which occurred in May 2015; 3) Failed
               to respond to a letter dated August 27, 2015 regarding his
               failure to return to work for SY 15-16; 4) Has demonstrated
               Absence Without Leave (AWOL) from a period of August 24,
               2015 through September 21, 2015 (20 consecutive work
               dates).

       {¶ 25} According to the trial board's written decision, Brenda Klein testified at the
December 7, 2016 hearing. Brenda Klein is a food service supervisor at Columbus City
Schools and had been employed by the school district for approximately five years.
       {¶ 26} According to the trial board's decision:
               She said that Mr. Stultz had been with the School District
               since 2013 and that he worked three hours per day. She
               testified that three-hour employees do not qualify for FMLA
               leave because they do not accumulate enough hours to meet
               the requirements.

               Ms. Klein testified that she met with Mr. Stultz in September
               2013 to review the handbook, Kronos timekeeping, and
               attendance. She does not typically meet individually with each
               employee. She identified Board Exhibit B as excerpts from the
               Food Service Employee Handbook and identified pages 18-20
               as the checklist for the training of new employees. She
               testified that she covered all of the issues listed there and even
               provided her business card with her phone number. She said
               that employees calling off must contact a supervisor at least
               an hour in advance, or they may contact Roxane Reed in the
               office.
No. 17AP-656                                                                           9


               Ms. Klein stated that Mr. Stultz requested to be
               accommodated on the job. She said that no other employees
               receive accommodations because the job is physical and
               injured employees cannot return to work without a doctor's
               approval. She said that Mr. Stultz has been disciplined in the
               past. She went over his attendance record and identified
               Board Exhibit B, pages 10-16, as a Kronos report on his
               attendance for the school year 2013-2014. She testified that
               she had a verbal conference with Mr. Stultz on March 3, 2014
               when he missed seven days, since discipline can occur after
               nine days. She said that pages 13-14 indicated he was in a leave
               without pay status and that he stated he was going to quit.
               Ms. Klein said she asked for a letter from him, but did not hear
               from him until the next school year. He was out for the
               remainder of May and did not call in after that.

               Ms. Klein stated that Mr. Stultz reported to work the next
               school year in August 2014 and he had a disciplinary
               conference in September 2014, and he was given a three-day
               suspension. She went over the rest of the report and said that
               he had missed 17 days in the 2014-2015 school year. Ms. Klein
               identified page 23 of Board Exhibit B as documentation from
               Barbara Wolz, Food Service Manager, who called Mr. Stultz in
               August 2015 wherein she asked if he would be returning to
               work. He returned her call and stated that he would not be
               returning to work. He did not show up again for that school
               year and Ms. Klein indicated that they cannot replace an
               employee until that employee resigns or is terminated.
               Therefore, they had to get substitutes to fill in for him.

               Ms. Klein said that employees are questioned during their
               interviews regarding lifting and that employees are required
               to be able to life 40 pounds. She repeated that employees with
               physical restrictions cannot be accommodated at all. She said
               it is at the manager's discretion to put someone on the
               register, but that is usually due to a special situation and is not
               a daily occurrence. She testified that all employees help
               unload the food trucks.

       {¶ 27} According to the trial board's decision, Adriane Thomas testified. She is a
personnel assistant with Columbus City Schools and has been employed by the school
district since 2002.
       {¶ 28} According to the trial board's decision:
No. 17AP-656                                                                          10


               She testified that she processes leaves of absence, injury leave,
               and workers compensation for classified employees.
               Ms. Thomas said that employees who apply for leave need to
               obtain a packet of forms to complete and return. She stated
               that the contract requires an application for a leave of absence
               for 15 days or more.

               Ms. Thomas identified Board Exhibit F as a Regular Leave of
               Absence packet which includes instructions and forms to
               complete. She testified that she did not recall talking to
               Mr. Stultz; however, she explained that anyone in the office
               could have given him the packet. She also testified that she did
               not recall receiving completed forms from Mr. Stultz and she
               could not say for sure that he did not turn them in. When
               employees turn in a completed packet, the forms are scanned
               and tracked. Ms. Thomas stated that Mr. Stultz was not
               granted a leave of absence because he would have been sent a
               letter. She said that her office does not process requests for
               accommodation.
               ***

               In response to questions from Commissioner Pettigrew,
               Ms. Thomas stated that she creates a file when completed
               leave of absence forms are submitted and that she did not
               have a file for Mr. Stultz. She also said that she keeps a holding
               file for incomplete forms. During the hearing on October 20,
               2015 with Dr. McAfee, this issue was addressed. She testified
               that she checked her office and also went to the warehouse to
               check for paperwork for Mr. Stultz. She said she recalled a
               discussion during the hearing about medical documentation,
               but that Mr. Stultz was not in the system and had not been
               approved for a leave of absence.

      {¶ 29} According to the trial board's decision, Jerry McAfee testified. McAfee is a
hearing officer in the employee relations department with Columbus City Schools, and he
was interim director for the period of time during the 2014-2015 school year.
      {¶ 30} According to the trial board's decision:
               Dr. McAfee identified Board Exhibit B pages 25-27 as a letter
               sent to Mr. Stultz in August 2015. He said the letter was sent
               because there was an issue with the previous school year
               where Mr. Stultz did not show up for work and told a
               supervisor he was quitting. Food Services tried to get a
               commitment from him and he subsequently appeared at
               Human Resources and explained that he was not resigning.
No. 17AP-656                                                                            11


               Mr. Stultz called again telling a supervisor that he was going
               to quit, so a hearing was set up for the May 2015 AWOL's.
               Mr. Stultz did not appear for the hearing and said he did not
               receive the hearing notice. Dr. McAfee said a second hearing
               notice was sent and Mr. Stultz again did not show up.
               Dr. McAfee again referred to the letter he sent (Board Exhibit
               B, pages 25-27) to Mr. Stultz in August 2015 directing him on
               what he needed to do. Mr. Stultz was given five options and
               did not follow through on any of them. He said that Mr. Stultz
               received this letter since he signed for the certified mail
               receipt on September 2, 2015. Dr. McAfee said a hearing was
               held on October 20, 2015 and Mr. Stultz attended this hearing.
               ***

               Dr. McAfee testified that Employee Relations sends notices by
               certified mail, but he was unsure if Mr. Stultz received the
               notice for the first hearing. He also stated that Mr. Taylor was
               the Hearing Officer assigned to the first hearing. Once the
               second hearing was scheduled, Dr. McAfee said they had the
               notice hand-delivered to Mr. Stultz in order to ensure that he
               received it. He stated that his notes reference the discussion
               with Ms. Thomas regarding medical documentation and that
               the hearing was recessed in order to request that Ms. Thomas
               attend so it could be determined if Mr. Stultz submitted any
               medical documentation or not.

               Mr. Banal introduced Union Exhibit 1, a time-stamped copy
               of a medical form that Mr. Stultz had in his possession. Note:
               Columbus City Schools did not have this document in their
               exhibits. Dr. McAfee testified that it is similar to the form in
               the Leave of Absence packet, although he said it was an older
               form based on the date at the bottom.

               In response to questions from Commissioner Pettigrew,
               Dr. McAfee stated that he did not know where the "Received"
               stamp originated from on the bottom of the document. He
               said the document was not processed through Employee
               Relations.

       {¶ 31} According to the trial board's decision, Lakesha Palmer testified. According
to the trial board's decision:
               Lakesha Palmer is a former Food Service Helper with CCS
               and stated that she was no longer working there during the
               2014-2015 school year. She testified that she last worked at
               Sherwood Middle School and that the manager there was
No. 17AP-656                                                                           12


               Barbara Wolz. Ms. Palmer explained that they worked about
               three hours per day.

               Ms. Palmer described the duties of a Food Service Helper and
               stated that not everyone participated in the same duties all of
               the time. She explained that light duty was not supposed to be
               available; however, some employees were allowed light duty.
               She stated that there was one employee (Janice) who worked
               the register the majority of the time due to her issue with being
               dizzy. Ms. Palmer testified that they rotated duties for two
               weeks while Janice was on leave and upon her return, she was
               assigned to the register. Ms. Palmer alluded to the fact that
               this caused some employees to be disgruntled. Ms. Palmer
               testified that she was unaware if Mr. Stultz was granted an
               accommodation.

               In response to questions from Commissioner Pettigrew,
               Ms. Palmer stated that she had worked at CCS for five or six
               years. She said that while employed at Sherwood, there were
               only five employees and when one employee did not
               contribute, it affected the entire group. She also stated that
               she believed Mr. Stultz was able to do the job because all of
               the employees assisted each other. Ms. Palmer was not aware
               of Mr. Stultz's limitations on the job; however, he may have
               requested better floor mats at the time.

(Emphasis sic.)

       {¶ 32} According to the trial board's decision, relator testified. According to the
trial board's decision:
               Steven Stultz testified that he had been employed by CCS in
               Food Services since 2013. He stated that he served one year
               with the Air Force and that he also worked for the State of
               Ohio with the Bureau of Employment Services.

               ***

               Mr. Stultz testified that he worked at Easthaven, Eastgate, and
               Eastmoor before working at Sherwood. He discussed
               receiving phone calls from a 365 prefix phone number and
               stated that Ms. Klein handled the situation. He stated that he
               had some issues with the weight of the milk crates and the
               freezer. Mr. Stultz stated that he was never a no call, no show
               employee.
No. 17AP-656                                                                       13


               Mr. Stultz said that the first time he called off from work was
               due to a back issue; however, he only took one day off work.
               He discussed an issue regarding a leak in the ceiling where five
               gallon buckets (once full) had to be moved and dumped. He
               testified that he was injured one other time when Ms. Wolz hit
               him with the freezer door and knocked him down.

               Mr. Stultz said that he started using a cart to move milk crates
               and explained to his manager about his limitations. He stated
               that Janice was allowed to continue working. He testified that
               they had meetings during the 2014 school year where they
               were told they had to move faster or find something else. He
               stated that this was not directed at him.

               Mr. Stultz testified that Ms. Wolz called him in August 2014
               and that they were assisting him in obtaining a job
               coach/mentoring position. He also reached out to the
               superintendent in January 2014. He said that he never told
               anyone he quit during the 2015 school year. Mr. Stultz
               testified that he spoke with his manager informing her that he
               would keep her apprised and that he would go to Human
               Resources when he made his decision. He stated that he chose
               to request leave without pay after receiving Dr. McAfee's
               letter.

               Mr. Stultz stated that he went to the VA in September 2015
               and that he turned in paperwork "downtown," but that it was
               not Ms. Thomas to whom he gave that paperwork. He said
               that he turned in the doctor's forms on October 7, 2015 and
               that Ms. Thomas informed him that he completed the wrong
               paperwork for intermittent leave versus leave without pay.
               Mr. Stultz said that Ms. Thomas testified at the disciplinary
               hearing that he turned in incomplete forms and they were not
               turned in soon enough.

               Mr. Stultz testified that he did not receive the hearing notices.
               He also testified that he now has a back brace and orthopedic
               shoes and is physically able to return to work.

               Mr. Stultz testified that he was not offered the opportunity to
               return to work but was told he could resign and apply for other
               jobs. His testimony was that there were two incidents where
               he took time off work. He also stated that he did not contact
               anyone other than his supervisor. Mr. Stultz said he talked to
               Renee Dews, a Union Steward, who told him he needed to go
               on leave as directed by his letter. He stated that Dr. McAfee
No. 17AP-656                                                                         14


               told him several times he needed to "man up." He testified
               that he turned in the entire Leave of Absence packet to Human
               Resources and he also kept a copy. He did not explain the
               reason he only had four pages of the packet.

               Mr. Stultz acknowledged that he met with Ms. Klein in
               September 2014 to review job duties. He said he had a
               disciplinary hearing in March 2014 and was suspended for
               three days. He said he did not apply for a reasonable
               accommodation at that time because he was told there were
               no accommodations offered.

               Mr. Stultz said that he believed he missed 15 to 17 work days
               in May 2015 due to his intervention of a fight between two
               students. However, he said that Ms. Wolz pulled him back
               from the fight and told him Food Service Employees were not
               to intervene in these situations. He said he called off on all of
               those missed days.

               In response to questions from Commissioner Pettigrew,
               Mr. Stultz stated that he did not have an advocate from the VA
               or any other veterans' organizations, and that the VA told him
               to try to get a different job.

               Commissioner Pettigrew stated that the record would be kept
               open until December 19, 2016. He requested a copy of the
               time-stamp used by Human Resources as it appeared in 2015
               and also directed counsel for both parties to turn in any other
               documents regarding Mr. Stultz's leave of absence by that
               date.

(Emphasis sic.)

      {¶ 33} On the seventh page of the trial board's written decision are "Findings and
Recommendations." Thereunder, the decision states:
               The Trial Board concluded from all the evidence submitted
               that Steven Stultz took steps to submit his leave of absence
               paperwork. Meaning, Columbus City Schools gave him
               written directives in 2015 where they provided him with five
               options. The Trial Board feels that he attempted to implement
               one of those options by submitting paperwork to request leave
               without pay. However, the Trial Board recognizes that he
               missed an extensive amount of work and that he failed to
               follow through on procedures for calling off work and
               requesting leave without pay.
No. 17AP-656                                                                       15


               Since he did attempt to follow through with one of the options
               offered, it is recommended that Mr. Stultz's termination be
               modified to a suspension for the maximum number of days
               permitted (not less than thirty [30] days). It is also
               recommended that Mr. Stultz receive the minimum
               compensation a part-time employee is entitled to receive.
               Also, if Mr. Stultz returns to work, he would benefit from
               being scheduled for long-term training regarding his
               employment with Columbus City Schools. If Mr. Stultz has
               additional issues with showing up for work and fails to
               complete any of the requirements of his position as a Food
               Service Helper, he may be terminated by the School District.

               For the foregoing reasons and based on the evidence
               presented, the Trial Board finds that Steven Stultz attempted
               to follow requirements to request a leave of absence. However,
               the Trial Board recommends that the full Commission modify
               the discharge of Mr. Stultz to the maximum suspension
               permitted (not less than thirty [30] days).

      {¶ 34} 8.     As earlier noted, on April 3, 2017, the Columbus Civil Service
Commission adopted the trial board's decision.
      {¶ 35} 9. On April 5, 2017, attending physician John Zaino, M.D., wrote:
               Mr. Stultz is a patient in our care at the Columbus VA with
               several medical problems affecting his ability to be
               employable for specific job tasks. We are scheduling him for
               an updated full functional capacity exam at our facility to be
               able to provide more exact recommendations as to his
               employability and work restrictions.

               In the meantime, I recommend he perform tasks related to
               walking, standing, lifting, bending, crouching and sitting "AS
               TOLERATED."

(Emphasis sic.)

      {¶ 36} 10. On April 7, 2017, Sheryl Stephens, M.D., the school physician for the
Columbus City School District Board of Education, sent an e-mail to Adriane L. Thomas
regarding relator. The e-mail states:
               Food service worker: has release with restrictions so will not
               be released to work at this time. I am faxing the release to you.
No. 17AP-656                                                                             16


               I am sending him to you so he can obtain any forms he may
               need for continued absence. He states he will call you later
               today. I am giving him your number. I hope that is ok.

      {¶ 37} 11. On April 18, 2017, Dr. Zaino completed a form provided by the U.S.
Department of Labor. This form completed by Dr. Zaino is the same form completed by
Dr. Aurand on September 23, 2015 as earlier described.
      {¶ 38} 12. Under part A of the form, the attending physician is asked: "Is the
employee unable to perform any of his/her job functions due to the condition?"
      {¶ 39} In response to the query, Dr. Zaino marked the "No" response.
      {¶ 40} The attending physician is further asked: "If so, identify the job functions
the employee is unable to perform."
      {¶ 41} In response, in the space provided, Dr. Zaino wrote "those as tolerated."
      {¶ 42} At paragraph four under part A of the form, Dr. Zaino responded in the
space provided:
               Patient with chronic neck and back pain due to diffuse
               [illegible], he has pending functional capacity exam but
               should return to work and perform tasks as tolerated. Has
               seen the appropriate specialist in the past.

      {¶ 43} Under part B of the form, at paragraph five, the form asks the attending
physician:
               Will the employee be incapacitated for a single continuous
               period of time due to his/her medical condition, including any
               time for treatment and recovery?

      {¶ 44} In response to the above query, Dr. Zaino marked the "Yes" response.
      {¶ 45} Thereunder, the attending physician is further asked: "If so, estimate the
beginning and ending dates for the period of incapacity."
      {¶ 46} In response, in the space provided, Dr. Zaino wrote: "April [5], 2017-
May 25, 2017."
      {¶ 47} Under part B of the form, at paragraph seven, the physician is asked:
               Will the condition cause episodic flare-ups periodically
               preventing the employee from performing his/her job
               functions?
No. 17AP-656                                                                          17


      {¶ 48} Thereunder, Dr. Zaino marked the "Yes" response.

      {¶ 49} Thereunder, Dr. Zaino indicated that the flare-ups will occur at a frequency
1 to 2 times per month and a duration of 1 to 2 days per episode.
      {¶ 50} 13. On April 25, 2017, Dr. Stephens' sent an e-mail to Wanda T. Lillis,
counsel for respondent. The e-mail states:
               Regarding the FMLA form: I believe the doctor is essentially
               stating he needs leave through May 25, 2017. The doctor states
               Mr. Stultz can RTW "as tolerated," but I do not believe that is
               possible given the duties of a food service worker.

      {¶ 51} 14. On July 31, 2017, Dr. Zaino authored "Progress Notes." In those notes,
Dr. Zaino wrote:
               Mr. Stultz is a patient in our care. Recent formal functional
               capacity examination results in regards to recommendations
               of activity and frequency of which he is able to perform:

               Ambulation – occasionally, and recommend use of ankle
               braces and community walker

               Sitting – 30 minute maximum before position change

               Standing continuously – 5 minutes maximum

               The following activities were recommended he avoid:
               -squat lift
               -power lift
               -shoulder lift
               -bilateral carry
               -push and pull

               Simple grasping – occasionally
               Firm grasping – avoid
               Pinching – occasionally

               The patient's physical demand level was identified as
               sedentary.

               The patient reports he works three hour shifts where [he] has
               to be standing most of the time, and requires him to move or
               carry crates of milk.
No. 17AP-656                                                                          18


               Based on the above factors, I do not recommend he work this
               job due to his medical conditions. For him to be employable,
               he would need to be afforded a job within the above functional
               limitations.

       {¶ 52} 15. On August 14, 2017, Dr. Stephens sent an e-mail to Adriane L. Thomas.
The e-mail states:
               In my medical opinion, Mr. Stultz cannot perform the duties
               of his position. He agrees. I am sending him to your office
               without a pink slip. If there is some other management of this
               that you prefer, please let me know.

       {¶ 53} 16. Earlier, on July 21, 2017, prior to the filing of this mandamus action,
relator executed an affidavit in which he avers:
               [One] I began my employment with the Columbus City School
               District on or around September 4, 2013.

               [Two] During my employment tenure with the Columbus City
               School District, I worked as a food service Helper with a
               regular yearly schedule of one hundred ninety-three (193)
               days per school year.

               [Three] The Columbus City School District terminated my
               employment effective October 20, 2015.

               [Four] The Columbus Civil Service Commission, through
               Appeal No. 15-BA-0014, modified my termination from the
               Columbus City School District to thereafter thirty (30)-day
               suspension on April 3, 2017.
               [Five] Despite my termination being overturned, the
               Columbus City School District has not paid any amount in
               back pay due to me. Representatives from the District have
               verbally informed my attorney that they are refusing to pay
               me any back pay. The District has not provided a written
               explanation for its lack of payment.

               [Six] Since my termination, I have not received any
               unemployment benefits from the Ohio Department of Job and
               Family Services (ODJFS).

               [Seven] Since my separation from the Columbus City School
               District, I have been unable to find gainful employment
               despite good faith efforts.
No. 17AP-656                                                                               19


       {¶ 54} 17. Pursuant to an order of the magistrate setting forth a schedule for the
filing of evidence and briefs, respondent filed its brief on January 23, 2018. Appended to
its brief is the affidavit of Sheryl Stephens, M.D., which was executed January 22, 2018.
In her seven paragraph affidavit, Dr. Stephens reviews the medical documents that are
described in the findings of fact in the magistrate's decision. Dr. Stephens' affidavit avers:
               [One] I am employed as the Columbus City School District
               Board of Education's School Physician. I have been employed
               in this position for approximately 25 years.

               [Two] As School Physician, my duties include evaluating
               employees before they are permitted to return to work after a
               medical leave of absence. That evaluation may include, but
               not be limited to a physical examination of the employee,
               reviewing medical records provided by the employee's health
               care provider, and consultation with the employee's health
               care provider.

               [Three] In the course of my duties, I evaluated Steven L. Stultz
               regarding his ability to return to work as a Food Service
               Helper after an extended absence.

               [Four] On April 7, 2017, I sent the attached email to Adrianne
               [sic] Thomas, Columbus City Schools' Human Resources
               Personnel Assistant to address Stultz's possible return to
               work. * * * I stated in that email that due to the restrictions
               from Stultz's personal physician, as indicated in the attached
               letter from his physician dated April 5, 2017, Stultz would not
               be released to return to work. * * *

               [Five] On April 25, 2017, I reviewed the additional medical
               documentation from Stultz's personal physician. The
               documentation stated that Stultz could not return to work
               until at least May 25, 2017. * * * I conveyed that information
               in the attached email. * * *

               [Six] I reviewed the attached Progress Notes from Stultz's
               personal physician dated July 31, 2017. * * * Based upon that
               information, in my medical opinion, Stultz cannot perform
               the duties of a Food Service Helper and I stated that opinion
               in an email dated August 14, 2017. * * *

               [Seven] I have reviewed that attached "Medical
               Documentation for Employee" dated September 23, 2015
No. 17AP-656                                                                                20


               from Stultz's health care provider * * *. Neither Stultz nor any
               District employee previously provided this document to me
               for review to determine if Stultz was physically able to return
               to work in September 2015.

Conclusions of Law:
       {¶ 55} It is the magistrate's decision that this court deny relator's request for a writ
of mandamus, as more fully explained below.
                                         Basic Law
       {¶ 56} In State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn., 105 Ohio
St.3d 476, 2005-Ohio-2974, ¶ 28, the Supreme Court of Ohio had occasion to succinctly
summarize law pertinent here:
               "A reinstated public employee may maintain an action in
               mandamus to recover compensation due for a period of
               wrongful exclusion from employment, 'provided the amount
               recoverable is established with certainty.' " State ex rel.
               Martin v. Bexley City School Dist. Bd. of Edn. (1988), 39 Ohio
               St.3d 36, 37, 528 N.E.2d 1250, quoting Monaghan v. Richley
               (1972), 32 Ohio St.2d 190, 61 O.O.2d 425, 291 N.E.2d 462,
               syllabus. The term "with certainty" generally refers to
               "whether a particular amount has been precisely determined
               as to its value in dollars and cents" and at times "also refer[s]
               to the quality of proof, in order for an employee to
               demonstrate that he has a clear legal right to the relief for
               which he prays." State ex rel. Hamlin v. Collins (1984), 9 Ohio
               St.3d 117, 120, 9 OBR 342, 459 N.E.2d 520.

Id. at ¶ 28.

                                    Relator's Position
       {¶ 57} Relator calculates that he is entitled to a back pay award of $13,091.76. He
first calculates what he calls "gross back pay." He calculates "gross back pay" by adding
all the days that he would have been assigned to work during the 2015-2016 school year
and the 2016-2017 school year. There were 193 work days in each school year. Relator
then multiplies the work days by 3 hours per work day times the hourly wage of $13.68.
No. 17AP-656                                                                             21


               According to relator:
               [Stultz's] lost gross wages can be calculated as:
                      2015-2016 school year: $13.68/hour x 3 hours/day x
                       193 days = $7,920.72.
                      2016-2017 school year: $13.68/hour x 3 hours/day x
                       193 days = $7,920.72.
                      $7,920.72 + $7,920.72 = $15,841.44 gross back
                       pay

(Emphasis sic.) (Footnote omitted.) (Relator's Brief at 11.)

       {¶ 58} From "gross back pay," relator makes two subtractions: "(1) the time Relator
was away from work prior to his October 20, 2015, termination; and (2) the thirty day
suspension levied by the Columbus Civil Service Commission." (Relator's Brief at 12.)
       {¶ 59} With respect to the first subtraction, relator determines that he missed 37
days of work beginning the start of the 2015-2016 school year on August 26 to the
October 20, 2015 discharge hearing. As earlier noted, the second subtraction is the 30-
day suspension.
       {¶ 60} According to relator:
               Adding this thirty-day suspension * * * with the thirty-seven
               days missed by Stultz, we can calculate with certainty that
               Stultz's back pay can be reduced by sixty-seven days at the
               2015-2016 pay rate. This calculation is as follows:

                  67 days x 3 hours/day x $13.68/hour=$2,749.68.
                  $15,841.44 gross back pay─$2,749.68=$13,091.76.

(Emphasis sic.) (Relator's Brief at 13.)

                                  Medical Uncertainty
       {¶ 61} Among the problems with relator's back-pay award calculation is his failure
to recognize the lack of medical certainty that relator was physically able to perform the
job of food service helper during the time period claimed in a back pay award.
       {¶ 62} Analysis begins with the April 5, 2017 report of Dr. Zaino recommending
that relator "perform tasks related to walking, standing, lifting, bending, crouching and
sitting 'as tolerated.' " It can be noted that Dr. Zaino's report was authored just two days
following the April 3, 2017 adoption of the trial board's recommendation by the Columbus
No. 17AP-656                                                                            22


Civil Service Commission. As earlier noted, the April 5, 2017 report of Dr. Zaino prompted
school board physician, Dr. Stephens, to e-mail Adriane Thomas on April 7, 2017.
(Adriane Thomas was employed by respondent as a personnel assistant.) In her April 7,
2017 e-mail, Dr. Stephens states: "Food service worker: has release with restrictions so
will not be released to work at this time."
       {¶ 63} Clearly, as of Dr. Stephens' April 7, 2017 e-mail, we have medical
uncertainty as to whether relator is physically capable of performing the job of food
service helper.
       {¶ 64} Analysis continues with a review of the April 18, 2017 report of Dr. Zaino on
a form provided by the U.S. Department of Labor. As earlier noted, on the form, Dr. Zaino
wrote that relator will be incapacitated from April 5 to May 25, 2017. As earlier noted,
Dr. Zaino's completion of the FMLA form on April 18, 2017 prompted another e-mail from
Dr. Stephens. That is, on April 25, 2017, Dr. Stephens e-mailed Wanda L. Lillis indicating
that she does not believe that relator can return to work as a food service worker.
       {¶ 65} Again, as indicated by Dr. Stephens' April 25, 2017 e-mail and Dr. Zaino's
April 18, 2017 report, we have continuing uncertainty as to whether relator is medically
able to return to work as a food service helper.
       {¶ 66} Analysis further continues with a review of the July 31, 2017 "Progress Note"
of Dr. Zaino in which he opines that relator's physical demand level is "sedentary" and
that relator should not return to the job of food service worker.
       {¶ 67} As earlier noted, Dr. Zaino's July 31, 2017 progress notes prompted yet a
third e-mail from Dr. Stephens on August 14, 2017. In this e-mail to Adriane Thomas,
Dr. Stephens opined: "Mr. Stultz cannot perform the duties of his position. He agrees."
       {¶ 68} With Dr. Stephens' August 14, 2017 e-mail, it became certain that relator
cannot return to his job as a food service worker. The certainty that relator cannot return
to his job as a food service worker also precludes back pay as does the lack of medical
certainty beginning as early as the April 7, 2017 e-mail of Dr. Stephens.
       {¶ 69} Based on the above analysis, the magistrate concludes that, as early as the
April 7, 2017 e-mail of Dr. Stephens, it was medically uncertain whether relator could
return to work. Accordingly, relator is clearly not entitled to back pay starting April 7,
2017 due to medical uncertainty.
No. 17AP-656                                                                    23


                                Mitigation of Damages
      {¶ 70} In Stacy, the Supreme Court of Ohio had further occasion to succinctly
summarize law pertinent here:
               "A public employee * * * who is wrongfully excluded from his
               position and sues to recover compensation for the period of
               exclusion, is subject to have his claim reduced 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. Martin v. Columbus, Dept. of Health
               (1979), 58 Ohio St.2d 261, 12 O.O.3d 268, 389 N.E.2d 1123,
               paragraph two of the syllabus. This principle of mitigation of
               damages is "an affirmative defense and the burden of proof on
               that issue resides upon the employer responsible for the
               wrongful discharge." Id. at paragraph three of the syllabus;
               see, also, Marshall v. Columbus (1980), 61 Ohio St.2d 353,
               355, 15 O.O.3d 436, 402 N.E.2d 509.

               The employee's due diligence in mitigating damages must be
               considered in light of employment opportunities based on the
               employee's education and experience. State ex rel. Martin v.
               Columbus, 58 Ohio St.2d at 266-267, 12 O.O.3d 268, 389
               N.E.2d 1123. Nevertheless, the wrongfully discharged
               employee must accept similar employment in the same
               vicinity to mitigate damages:

               "'Being subject to the universal rule that a person injured by
               the act of another is bound to use ordinary diligence to make
               the damage as light as may be, the discharged employee must
               use ordinary care to obtain employment. He may not be
               required to seek elsewhere, or to engage in a different
               industry. But he is bound to use ordinary effort to obtain
               similar employment in the same vicinity; at least if such
               employment is offered he is bound to take advantage of it.'"
               (Emphasis added.) Id. at 264-265, 12 O.O.3d 268, 389 N.E.2d
               1123, quoting James v. Allen Cty. (1886), 44 Ohio St. 226,
               233-234, 6 N.E. 246; see, generally, Danne, Nature of
               Alternative Employment Which Employee Must Accept to
               Minimize Damages for Wrongful Discharge (1972), 44
               A.L.R.3d 629, 640, Section 3 ("the general rule [is] that an
               individual who has been discharged in breach of his contract
               for a definite term of employment is obliged to mitigate
               damages by accepting available alternative employment of the
               same or similar character, but not employment of a
               significantly different kind"). (Footnotes omitted.)
No. 17AP-656                                                                                 24


Id. at ¶ 46-48.

         {¶ 71} In its brief, respondent argues:

                Stultz offers no evidence other than a self-serving statement
                that he was unable to find gainful employment during a two
                year period. He provides no names of businesses or dates on
                which he might have applied for a position. He provides no
                information about any community agency or employment
                service that he might have enlisted to help with the job search.
                He provides no documentation that during the entire time
                period, he could find absolutely no work. In light of the fact
                that Stultz worked in the area of food service, it is difficult to
                comprehend that he could not find any similar part-time
                work. He was not required to find exactly the same work but
                only similar work, meaning in the same general geographic
                area and same industry. Batavia at *486. ("Nevertheless, the
                wrongfully discharged employee must accept similar
                employment in the same vicinity to mitigate damages.") Any
                restaurant or similar work would have sufficed. If Stultz was
                unable to work due to his medical issues and not being able to
                stand for long periods of time, then he also is not entitled to
                back pay from the District because standing was also a part of
                his job duties with the District.

(Respondent's Brief at 13-14.)

         {¶ 72} In his reply brief, relator responds:
                Respondent argues that Stultz should be denied back pay
                because he has not proven that he was unable to find similar
                employment during his time of wrongful exclusion from the
                District. This flips the mitigation of damages doctrine on its
                head, claiming that Stultz has the burden of proving his
                attempts at finding other employment. Failure to mitigate
                damages, however, is an affirmative defense, and the burden
                of proof falls upon the employer to back up its claim.

(Relator's Reply Brief at 6-7.)

         {¶ 73} The magistrate agrees with respondent. Only relator can identify the names
of businesses and the dates on which he might have applied for a position.
         {¶ 74} In his July 21, 2017 affidavit filed in this action, at paragraph seven, relator
avers:
No. 17AP-656                                                                             25


               Since my separation from the Columbus City School District,
               I have been unable to find gainful employment despite good
               faith efforts.

      {¶ 75} Given the lack of specificity, relator's averment can be viewed as self-serving
and entitled to no weight. That is, this court is not compelled to accept the averment as
true. Whatever burden respondent has in this action has been met by relator's failure to
produce any evidence to support the averment in his affidavit.
      {¶ 76} Accordingly, the magistrate concludes that relator is clearly not entitled to
back pay starting October 20, 2015.
      {¶ 77} Given the above analysis, it is the magistrate's decision that this court deny
relator' request for a writ of mandamus.


                                               /S/ MAGISTRATE
                                               KENNETH W. MACKE


                               NOTICE TO THE PARTIES

               Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
               error on appeal the court's adoption of any factual finding or
               legal conclusion, whether or not specifically designated as a
               finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
               unless the party timely and specifically objects to that factual
               finding or legal conclusion as required by Civ.R. 53(D)(3)(b).
