[Cite as Kyle v. Ohio State Univ., 2014-Ohio-2143.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Paul Kyle,                                            :

                 Appellant-Appellant/                 :
                 Cross-Appellee,
                                                      :            No. 13AP-603
v.                                                             (C.P.C. No. 12CVF02-2389)
                                                      :
The Ohio State University,                                  (REGULAR CALENDAR)
                                                      :
                 Appellee-Appellee/
                 Cross-Appellant.                     :


                                          D E C I S I O N

                                       Rendered on May 20, 2014


                 James J. Leo, for appellant/cross-appellee.

                 Michael DeWine, Attorney General, Rory P. Callahan and
                 Amanda L. Scheeser, for appellee/cross-appellant.

                  APPEALS from the Franklin County Court of Common Pleas

DORRIAN, J.
        {¶ 1} In this R.C. Chapter 119 appeal, appellant, Paul Kyle ("appellant"), appeals
from a judgment of the Franklin County Court of Common Pleas in which the court (1)
reversed an order of the State Personnel Board of Review ("SPBR") dismissing for lack of
jurisdiction appellant's administrative appeal of an alleged removal from employment,
and (2) remanded the matter to the SPBR for further proceedings. Appellant's former
employer and appellee herein, The Ohio State University ("OSU"), has cross-appealed.
        {¶ 2} We overrule appellant's assignment of error because it is not yet ripe for
judicial review pursuant to R.C. Chapter 119. We sustain OSU's cross-assignment of error
only to the extent that we vacate the common pleas court determination that appellant
voluntarily resigned his position because this must be determined in the first instance by
No. 13AP-603                                                                                  2

the SPBR, in light of the totality of the circumstances. Therefore, we remand this case to
the SPBR to determine whether appellant voluntarily resigned his position and, therefore,
whether SPBR has jurisdiction to further consider appellant's claims. If SPBR determines
that it does have jurisdiction, then it shall consider whether appellant's termination was
improper and, if so, if appellant is entitled to reinstatement and back pay as he requests.
       {¶ 3} We therefore affirm in part and reverse in part the judgment of the common
pleas court and remand this case to that court with instructions that it remand the matter
to the SPBR to further consider the issues as outlined above.
I. Facts
       {¶ 4} The facts for purposes of this appeal are found in the record of proceedings
certified by the SPBR to the common pleas court pursuant to R.C. 119.12. That record
reveals that appellant initiated the administrative proceedings on December 9, 2011, by
filing with the SPBR a notice of an administrative appeal from what he alleged to be an
"Order or Notice of Removal which was received on * * * 11/21/2011 and which was
effective on * * * 11/21/2011." (Dec. 12, 2011 Notice of Appeal.) The notice of appeal
identified OSU as the appellee agency. Appellant also attached to his SPBR notice of
appeal a copy of a letter ("termination letter") signed by an OSU human resources
employee, Tom Ramey. The termination letter, which was addressed to appellant and
dated November 21, 2011, reads in part as follows:
              This letter will serve as notice that you are hereby removed
              from your position of Perioperative Patient Care Tech and
              terminated from the Ohio State University Medical Center
              effective November 21, 2011. This action is based on your
              demonstration of unsatisfactory performance. Please note
              that you are ineligible for rehire at the Ohio State University
              Medical Center.

       {¶ 5} The remainder of the termination letter advised appellant of his options to
(1) convert his long-term disability coverage into a group disability policy "31 days from
the date of [his] termination from the Medical Center," and (2) continue health benefits
pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1986 ("COBRA")
"due to the termination of employment and loss of health benefits through the university."
(Nov. 21, 2011 termination letter.) The termination letter advised appellant where to
obtain further information relative to those options.
No. 13AP-603                                                                                               3

           {¶ 6} On December 21, 2011, the SPBR formally notified OSU of the filing of
appellant's administrative appeal. On December 27, 2011 (less than three weeks after
appellant had filed the notice of appeal and less than one week after the SPBR notified
OSU of the appeal), an SPBR administrative law judge ("ALJ") issued a summary report
and recommendation, which provided in its entirety, as follows:
                   REPORT AND RECOMMENDATION

                   To the Honorable State Personnel Board of Review:

                   This matter came on for consideration December 27, 2011. On
                   December 9, 2011, Appellant filed an appeal of his removal
                   from employment with Appellee. Information provided by
                   Appellant in his notice of appeal indicated that Appellant
                   received notice of his removal on November 21, 2011.

                   I find that the State Personnel Board of Review is without
                   jurisdiction to hear this appeal because it was not filed within
                   ten (10) calendar days following the date on which the order
                   of removal was served on the employee, as required by Ohio
                   Revised Code Section 124.34 and Ohio Administrative Code
                   Section 124-1-03(A).

                   Therefore, I respectfully RECOMMEND that this appeal be
                   DISMISSED.

    (Emphasis sic.)
           {¶ 7} On December 29, 2011, appellant filed objections to the ALJ's report and
recommendation, arguing that the ALJ had incorrectly determined that his appeal was
untimely filed. He argued that the ALJ had erroneously concluded that his appeal was
subject to the ten-day filing deadline established in Ohio Adm.Code 124-1-03(A) because
OSU had failed to provide him with a legally cognizable removal order. See Ohio
Adm.Code 124-3-01(A).1 He contended that he was instead subject to a 90-day time
period in which to appeal, pursuant to Ohio Adm.Code 124-1-03(E), which provides:


1   As relevant herein, Ohio Adm.Code 124-3-01, titled "Requirements of section 124.34 orders" provides:
                   "Section 124.34 orders" * * * may be affirmed only if each of the following
                   criteria are satisfied:

                   (1) The copy of the order served on the employee shall bear the original
                   signature of the appointing authority and the date of signature. * * *
No. 13AP-603                                                                                  4

              Appeals from alleged reductions in pay or position which do
              not involve a "section 124.34 order" shall be filed within
              ninety days after receipt of notice of the reduction or, if no
              notice is given, within ninety days of the actual imposition of
              the reduction. The appeal time may be extended within the
              discretion of the board.

(Emphasis added.)
       {¶ 8} In his objections to the ALJ report and recommendations, appellant noted
that he had filed his SPBR notice of appeal well within 90 days from November 21, 2011,
the date he received the termination letter. In addition, appellant attached to his
objections his affidavit that asserted the following: he had been employed with OSU as a
perioperative patient care tech in the classified civil service; he received the November 21,
2011 termination letter on November 21, 2011; right after receiving the "termination
letter," he was told that he could resign or be escorted out of the building; and,
approximately 30 minutes later, he gave OSU a handwritten letter of resignation that
stated: "Please accept my resignation as anesthesia technician effective today,
November 21, 2011."
       {¶ 9} Appellant thereafter received another letter from OSU human resources
officer Ramey, dated November 21, 2011, stating that his resignation had been accepted.
The letter reads, as follows:
              This letter is to confirm that we have accepted your
              resignation from Anesthesia, UHE, effective November 21,
              2011. Please note that you are ineligible for rehire at The Ohio
              State University Medical Center.

       {¶ 10} Based on the facts asserted in the affidavit, appellant argued to the SPBR
that he (1) had been a classified civil service employee, (2) had not been issued an R.C.
124.34 order concerning his termination, and (3) "since [he] did not receive an R.C.
124.34 Order, he had 90 days from receipt of the termination letter to file his appeal."
(Dec. 29, 2011 Objections, 2.) He further anticipated, and countered, an argument he
expected OSU to make, i.e., that the SPBR lacked jurisdiction of the appeal not because it


              ***

               (3) The order shows, on its face, a list of particulars which form the basis
              for the order[.]
No. 13AP-603                                                                             5

was untimely but because appellant had quit his employment, rather than been removed
by OSU. Appellant asserted that "a person cannot quit after he has already been fired."
(Emphasis sic.) (Objections, 3.) He sought relief in the form of reinstatement to his
position unless and until OSU served a "proper R.C. 124.34 Order" upon him. (Objections
3-4.) The following day he amended his objections to clarify that he sought relief not only
in the form of reinstatement but also an award of "full back pay and back benefits
covering the period of his wrongful termination." (Dec. 30, 2011 Amended Objections.)
      {¶ 11} OSU filed a written response to appellant's objections. In its response, OSU
did not address appellant's assertion that his appeal was subject to the 90-day limitation
period set forth in Ohio Adm.Code 124-1-03(E), rather than the 10-day limitation set forth
in Ohio Adm.Code 124-1-03(A). Rather, OSU requested that "the Board accept the
[ALJ's] recommendation to dismiss the instant appeal, albeit for different reasons in
addition to those in the recommendation." (Jan. 9, 2012 Response to Objections, 1.)
      {¶ 12} Consistent with appellant's expectation, OSU argued that, "even assuming
Appellant filed his notice of appeal within the applicable limitations period, the Board
should nonetheless dismiss Appellant's appeal and related requests because he resigned
from his position at OSU, precluding the Board from asserting jurisdiction over his appeal
pursuant to R.C. 124.34." (Response to Objections, 1.) OSU cited In re Disher, 12th Dist.
No. CA90-12-087 (July 22, 1991), for the proposition that R.C. 124.34 does not vest the
SPBR with jurisdiction to consider the appeal of classified employees who voluntarily
resign. (Response to Objections, 2.) OSU further argued that case law has established
that "merely allowing an employee to resign in lieu of termination, without other evidence
of coercion, does not render the resignation involuntary," citing Kinney v. Ohio Dept. of
Admin. Servs., 14 Ohio App.3d 33 (10th Dist.1984). (Response to Objections, 1.)
      {¶ 13} As previously noted, the SPBR adopted the ALJ's recommendation and
ordered the appeal dismissed "for lack of jurisdiction." (Feb. 17, 2012 Order.) The SPBR
did not overtly address OSU's suggestion that appellant had quit rather than been fired
and, because the SPBR adopted the ALJ's report and recommendation, it appears the
basis for the SPBR's dismissal of the appeal was that appellant had not timely filed his
removal appeal. In any event, it is clear from the record that the parties did not produce
No. 13AP-603                                                                                                6

additional evidence concerning the merit of OSU's allegation in the November 21, 2011
termination letter that appellant had not satisfactorily performed his job duties.
        {¶ 14} Appellant then appealed the SPBR's order to the Franklin County Court of
Common Pleas, pursuant to R.C. Chapter 119 and 124.34. The common pleas court
concluded that the disputed issues concerned the application of Ohio statutes and
administrative rules to undisputed facts. It found that the SPBR had incorrectly
determined that it lacked subject-matter jurisdiction.
        {¶ 15} The court first determined that OSU had not issued an R.C. 124.34 order of
removal, noting that "at the very least, the [November 21 letter] lack[ed] a list of
particulars which form the basis of the order" and an "original signature of the appointing
authority." (July 1, 2013 Decision and Entry, 5-6.) It concluded that the filing deadline for
the appeal was therefore not the ten-day period established in Ohio Adm.Code 124-1-
03(A). It found that the filing deadline was instead the 30-day period established in Ohio
Adm.Code 124-1-03(I).2 The court cited in support Malagisi v. Bd. of Mahoning Cty.
Commrs., 7th Dist. No. 09 MA 150, 2011-Ohio-1464, a case it described as being "on all
fours."3 (July 1, 2013 Decision and Entry, 7.) It found that the parties were not in
disagreement that appellant had filed his appeal from removal on the 21st day after
receiving the termination letter, within the 30-day appeal period, and that the SPBR erred
when it dismissed the appeal on the basis of the appeal having been untimely filed. Id.
        {¶ 16} The court proceeded to discuss the merits of OSU's contention that
appellant had voluntarily resigned so as to preclude appeal to the SPBR. The court
rejected that premise, focusing on the text of the November 21, 2o11 termination letter.
The court observed that the termination letter spoke entirely in the present tense ("you
are hereby removed * * * and terminated"). The court observed that the language of the
termination letter was inconsistent with OSU's contention that appellant had deliberately
and voluntarily chosen to resign.

2 Ohio Adm.Code 124-1-03(I) provides:
        Appeals from all other actions, including denials of reinstatement from disability
        separations, shall be filed, in writing, with the state personnel board of review not
        more than thirty calendar days after the time the appellant receives actual notice of
        the action.
3 In Malagisi, the court held that a classified employee who is terminated, but not given a formal R.C. 124.34

removal order, has 30 days from the time the employee is given actual notice of his removal to file a notice
of appeal with the SPBR.
No. 13AP-603                                                                                        7

       {¶ 17} The court also discussed, and rejected, appellant's contention that it should
immediately order appellant's reinstatement with back pay and benefits, finding that
request to be "premature at this time." (July 1, 2013 Decision, 8.)            The court observed
that the Supreme Court of Ohio has held that the lack of an R.C. 124.34 order does not
render a termination invalid or, in and of itself, require immediate reinstatement to the
former position, citing State ex rel. Shine v. Garofalo, 69 Ohio St.2d 253 (1982).
       {¶ 18} Based on the foregoing reasoning, the court concluded, inter alia, that the
SPBR order of dismissal was not in accordance with applicable law and "SPBR is
obligated to accept jurisdiction and to conduct a merits review of [a]ppellant's appeal for
removal." (July 1, 2013 Decision, 8.) Accordingly, the court reversed the SPBR order
dismissing appellant's administrative appeal, remanded the matter to the SPBR, and
specifically instructed "that this matter be further investigated by SPBR." (July 1, 2013
Decision, 9.)
       {¶ 19} Appellant appeals from the common pleas court's judgment, assigning the
following error for this court's review:
                The lower court found that OSU was required4 but failed to
                issue an R.C. 124.34 order; but it incorrectly remanded the
                case to the personnel board of review for a merits review to
                determine if [appellant] had been improperly removed before
                reinstating him and issuing back awards, when, in fact, a
                failure to issue an R.C. 124.34 order is, in itself, an improper
                removal and requires that the appointing authority
                automatically reinstate the employee with back awards.

       {¶ 20} In its cross-appeal, OSU asserts the following assignment of error:

                The Court of Common Pleas erred as a matter of law in
                holding that the record in this case, as presented by
                [appellant's] appeal to the State Personnel Board of Review,
                do[es] not constitute a voluntary resignation justifying
                dismissal of his appeal and this case.

II. Analysis
       {¶ 21} We begin by noting that neither party challenges the common pleas court's
conclusion, consistent with the decision of the Seventh District Court of Appeals in

4We note that the common pleas court did not make an express finding that OSU was required to issue an
R.C. 124.34 order.
No. 13AP-603                                                                                8

Malagisi, that appellant timely filed his administrative appeal in the SPBR pursuant to
Ohio Adm.Code 124-1-03(I). Therefore, regarding the timeliness of the administrative
appeal, there is no dispute that the SPBR has jurisdiction.         The   inquiry regarding
jurisdiction, however, does not end there. As OSU has raised in its cross-assignment of
error, whether appellant voluntarily resigned his position also must be considered to
determine whether SPBR has jurisdiction. With this in mind, we will address OSU's
cross-assignment of error first.
       {¶ 22} The common pleas court began its discussion of whether appellant
voluntarily resigned by noting that a finding regarding the same "is not included as a basis
of SPBR's Order of dismissal." (July 1, 2013 Decision, 8.) The court then rejected OSU's
argument that the uncontested facts demonstrate that appellant voluntarily resigned. The
court found persuasive appellant's arguments that a "terminated and removed employee
cannot subsequently be asked to resign" and "that such a resignation, even if in writing, is
a nullity and in the alternative, constitutes the ultimate form of duress." (Decision, 8.)
The court distinguished the facts of this case from the facts in Streitenberger v. Ohio
Dept. of Edn., 10th Dist. No. 04AP-342, 2004-Ohio-5549, ¶ 3, where the appellant in that
case was given the choice of immediately resigning or having her employment terminated
in the future. On these grounds, the court concluded that SPBR is obligated to accept
jurisdiction and to conduct a merits review of appellant's appeal for removal.
       {¶ 23} The record reveals that at no time before the ALJ was there a hearing or an
opportunity for hearing on the merits on the issue of whether appellant voluntarily
resigned or was terminated. Along with his objections to the ALJ's recommendation,
appellant filed an affidavit averring that he was terminated. However, the SPBR did not
hold a hearing or make a factual determination on the issue.
       {¶ 24} This court has recognized that the SPBR is a specialized administrative
agency with expertise in employment issues. Berning v. Ohio Dept. of Transp., 10th Dist.
No. 11AP-837, 2012-Ohio-2991, citing Lorain City School Dist. Bd. of Edn. v. State Emp.
Relations Bd., 40 Ohio St.3d 257, 260 (1988). It is appropriate that the SPBR, in the first
instance, utilize its expertise in reviewing the totality of the circumstances concerning
appellant's choice to sign a letter of resignation. This is consistent with the responsibility
of a common pleas court in an R.C. Chapter 119 appeal of an SPBR order to "give due
No. 13AP-603                                                                                                9

deference to the administrative agency's resolution of evidentiary conflicts and * * * not to
substitute its judgment for that of the board where some evidence supports the board's
order." Streitenberger at ¶ 8. Furthermore, "[b]efore an order is appealable, pursuant
to R.C. 119.12, it is necessary that the order be issued pursuant to an adjudication which is
defined by R.C. 119.01(D) as 'the determination * * * of the rights, duties, privileges,
benefits or legal relationships of a specified person.' " Carl v. Koehler, 10th Dist. No.
77AP-377 (Sept. 6, 1977).
        {¶ 25} No such adjudication, regarding whether appellant voluntarily resigned his
position, has yet been made by the SPBR in this case. Hence, there was no subject-matter
jurisdiction in the common pleas court, nor in this court, to address this issue. The trial
court had authority to decide only the question of the timeliness of the administrative
appeal, as this was the only issue upon which the SPBR ruled. The court prematurely
considered the issue of whether appellant voluntarily resigned or was terminated. It
should have remanded the case to the SPBR for the parties to present and the SPBR to
consider evidence on this issue. Biehle v. Pendleton, 10th Dist. No. 81AP-744 (Apr. 20,
1982). Therefore, to this extent, we sustain the cross-assignment of error and remand to
the SPBR for consideration of evidence and determination regarding whether appellant
voluntarily resigned or was terminated.
        {¶ 26} Having determined OSU's cross-assignment of error, we turn to review of
appellant's assignment of error. Appellant argues therein that the trial court should have
ordered OSU to reinstate him with back pay upon finding that OSU had failed to issue an
R.C. 124.34 removal order. We disagree.
        {¶ 27} OSU argues that appellant was served with the termination letter, as
opposed to an R.C. 124.34 order, because he was an unclassified administrative and
professional employee.5 If, on remand, the SPBR determines that it has jurisdiction in this

5 Appellant argues that he set forth the fact that he was a classified employee in his objections to the ALJ’s

order and that OSU never contested this fact. However, no express finding was made in this regard, and
now we affirm the common pleas court ruling that the order must be reversed and vacated. Appellant also
states that the common pleas court "found" that appellant was a classified employee. To the contrary, the
common pleas court stated: "The record and briefs in this matter reflect that for purposes of the gateway
issue of jurisdiction only, Appellee does not dispute that Appellant is a classified civil servant." (Emphasis
added.) (July 1, 2013 Decision, 5.) Qualifying its statement in this regard, the common pleas court may have
taken note of OSU’s statements in footnotes 1 and 3 of its brief before the court that, "[a]ssuming, for the
sake of argument, that Mr. Kyle was a classified employee and had been removed from employment without
being served with an order of removal under R.C. § 124.34, then he would have had thirty (30) days to file an
No. 13AP-603                                                                                                 10

case, it must then consider the merits–including whether appellant's termination was
improper, and, if so, if appellant is entitled to reinstatement and back pay as he requests.
Although appellant concedes that OSU failed to issue an R.C. 124.34 order, neither SPBR
nor the common pleas court has determined whether the termination was otherwise in
accordance with law. Nevertheless, in his assignment of error, appellant urges this court
to determine that he is entitled to immediate reinstatement and an award of back pay
based on the trial court's conclusion that OSU's November 21, 2011 termination letter did
not satisfy the requirements of a removal order as set forth in Ohio Adm.Code 124-3-01.
This assignment of error lacks merit. The common pleas court correctly found that it
would be premature for it to determine issues concerning the appropriate remedy
available to appellant, as SPBR has not yet determined that his removal was improper.
        {¶ 28} As recognized by the common pleas court, appellant's suggestion that he is
entitled to immediate reinstatement and back pay is precluded by State ex rel. Shine v.
Garofalo, 69 Ohio St.2d 253 (1981). We acknowledge that, in earlier cases, including State
ex rel. Alford v. Willoughby Civ. Serv. Comm., 58 Ohio St.2d 221, 229 (1979), the
Supreme Court of Ohio determined that the filing of an R.C. 124.34 removal order was a
jurisdictional prerequisite to the exercise of jurisdiction of the SPBR and that a court
could in those circumstances issue relief in mandamus in the form of reinstatement and
back pay for improper de facto removal from employment.
        {¶ 29} In Shine, however, the Supreme Court expressly overruled Alford, holding
that the SPBR has jurisdiction to determine a timely appeal of a de facto removal from
classified employment implemented in the absence of an R.C. 124.34 order and that an
employee arguing de facto removal therefore has an adequate remedy at law by appeal to
the SPBR, precluding issuance of the extraordinary writ of mandamus. Accordingly,
Shine establishes that an employee lacks a clear legal right to reinstatement and back pay
pending final resolution of the SPBR's exercise of that jurisdiction. Accord State ex rel.
Cartmell v. Dorrian, 70 Ohio St.2d 128, 129-30 (1982) (recognizing that, at the time of a
de facto termination in which no removal order had been issued, the employee's remedy
was through appeal to the SPBR, rather than through an action in mandamus).

appeal with SPBR," and "OSU has not waived the issue of whether or not Mr. Kyle is classified." (Emphasis
added.) (Appellee's April 20, 2012 trial court brief, fn. 1, 3.) At this time, we take no position as to whether
appellant was a classified or unclassified employee.
No. 13AP-603                                                                              11

       {¶ 30} Finally, "[i]t has become settled judicial responsibility for courts to refrain
from giving opinions on abstract propositions and to avoid the imposition by judgment of
premature declarations or advice upon potential controversies." Brookwood Presbyterian
Church v. Ohio Dept. of Edn., 10th Dist. No. 12AP-487, 2013-Ohio-3260, quoting Fortner
v. Thomas, 22 Ohio St.2d 13, 14 (1970), citing Miner v. Witt, 82 Ohio St. 237 (1910). It is
appropriate for this court, at this time, to exercise such restraint.
       {¶ 31} Applying these principles to the case before us, we conclude that
consideration of appellant's demand for reinstatement and an award of back pay is not
appropriate at this time unless and until the SPBR determines on remand both that it has
subject-matter jurisdiction and that appellant's termination was improper.
       {¶ 32} Accordingly, we overrule appellant's sole assignment of error.
III. Conclusion
       {¶ 33} Accordingly, we overrule appellant's assignment of error. We sustain OSU's
cross-assignment of error to the extent that we vacate the common pleas court
determination that appellant voluntarily resigned his position because this must be
determined in the first instance by the SPBR. We remand this case for the SPBR to
determine whether appellant voluntarily resigned his position and, therefore, whether
SPBR has jurisdiction to further consider appellant's claims. If SPBR determines that it
does have jurisdiction, then it shall consider whether appellant's termination was
improper and, if so, if appellant is entitled to reinstatement and back pay.
                                               Judgment affirmed in part, reversed in part,
                                                   and cause remanded with instructions.

                        SADLER, P.J., and McCORMAC, J., concur.

              McCORMAC, J., retired, of the Tenth Appellate District,
              assigned to active duty under the authority of the Ohio
              Constitution, Article IV, Section 6(C).

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