[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. 

 : 

 

M A G I S T R A T E ' S D E C I S I O N 

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 xray 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).