COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69445 ANONA KITTRELLS : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION STEPHEN A. PERRY, ETC., ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : SEPT. 5, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-276899 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: George W. Palda, Esq. Betty Montgomery Berkman, Gordon, Murray, Attorney General of Ohio Palda & Devan Darlene E. Chavers, Esq. 2121 The Illuminating Bldg. Assistant Attorney General 55 Public Square Employment Law Section, Cleveland, Ohio 44113 30 East Broaod Street 23rd Floor Columbus, Ohio 43215-3428 -2- HARPER, J.: Plaintiff-appellant, Anona Kittrells ("Ms. Kittrells"), appeals from the trial court's ruling which granted summary judgment in favor of defendants-appellees, Stephen A. Perry, Director of the Ohio Department of Administrative Services ("Mr. Perry" individually), and Virgil E. Brown, Director of the Ohio Lottery Commission ("Mr. Brown" individually). Ms. Kittrells submits that the trial court erred in granting summary judgment in favor of appellees because genuine issues of material fact remain pending for litigation concerning allegations contained in her complaint. After a careful review of the record, the trial court's decision is affirmed for the reasons herein. I. The apposite facts are adduced from the record before this court. Ms. Kittrells was employed by the Ohio Lottery Commission, in the classified civil service since 1974. On October 2, 1992, she received a letter from Mr. Perry. Mr. Perry's letter informed Ms. Kittrells that a review of her position indicated that her employment as a Programmer Systems Manager I was erroneously placed in the classified civil service. The letter in part read: We have reviewed your position description and your actual job duties and have concluded that you do in fact have authority to act on your director's behalf and/or that your position requires a high degree of personal loyalty, trust, confidence, reliance, and fidelity. Consequently, the Ohio Department of Administrative Services changed the Programmer Systems Manager I position to an unclassified service position. A new personnel form was completed -3- to reflect Ms. Kittrells unclassified civil service status as a Programer Systems Manager I. Subsequently, Ms. Kittrells wrote a letter to the State Personnel Board of Review ("SPBR"), seeking to appeal her reclassification. Ms. Kittrells' letter in part, read: I disagree with your decision to place my position into unclassified service. I want this letter to be used as my official request to begin the appeal process! I would like to know how and why such a change in my classification could be justified? (Emphasis sic.) The SPRB received Ms. Kittrells' letter and filed the letter as an appeal. On October 20, 1992, an administrative law judge issued a report in which he advised the SPBR to dismiss Ms. Kittrells' appeal for lack of subject matter jurisdiction. The report, in part, read: [S]uch a determination must be precipitated by a diverse personnel action, such as a removal or reduction, which either accompanied or followed an appellant's change or 'correction' of status. Indeed, under R.C. 124.03, the State Personnel Board of Review does not have the authority to issue declaratory judgments determining the classified or unclassified status of an employee's position. There is no other statute in R.C. Chapter 124 which invests such jurisdiction in the State Personnel Board of Review. The report also indicated that in the event Ms. Kittrells became adversely affected by a personnel action, Ms. Kittrells retained the right to file an appeal. On November 18, 1982, the SPBR unanimously adopted the SPBR's administrative law judge's recommendation. The SPBR ordered that -4- Ms. Kittrells' appeal be dismissed because of lack of subject matter jurisdiction. Ms. Kittrells objected to the SPBR's ruling. Pursuant to R.C. 119.12, Ms. Kittrells appealed the SPBR's dismissal of her appeal to the Franklin County Court of Common Pleas. Kittrells v. Ohio Lottery Commission, et al. Case No. 92- CVF12-09832. The common pleas court affirmed the SPBR's dismissal of Ms. Kittrells' appeal. Subsequently, Ms. Kittrells appealed the common pleas court's ruling to the Tenth District Court of Appeals of Ohio. Kittrells v. Ohio Lottery Commission, et al. (March 24, 1994), No. 93APE08- 1176 ("Kittrells I"). On appeal, Ms. Kittrells asserted that the "common pleas court erred in affirming the State Personnel Board of Review's dismissal of appellee's administrative appeal for want of subject matter jurisdiction." Ms. Kittrells argued that her change in classification was a "reclassification" as set forth by R.C. 124.04. The Kittrells I Court noted that because appellant retained the same title and job description after the change, appellant was not "reassigned" or "reclassified" within the meaning of R.C. Chapter 124. Id. Furthermore, the Kittrells I Court cited State ex rel Weiss v. Indus. Comm. (1992), 65 Ohio St.3d 470, and noted that "the SPRB and the trial court correctly determined that appellant needed to demonstrate a resulting adverse employment action to trigger the SPBR's jurisdiction under R.C. 124.03." Finally, the Kittrells I Court stated: It is well-settled that a court does not attain jurisdiction unless an actual case or controversy exists, giving rise to a justifiable cause in which the litigant -5- has standing to assert a claim. "'A controversy' exists for purposes of declaratory judgment when there is a genuine dispute between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Wagner v. Cleveland (1988), 62 Ohio App.3d 8, 13. While it is true that appellant's employment was changed from classified to unclassified service, the fact remains that appellant suffered no adverse employment action as a result of that change. An examination of the record offers no evidence that appellant suffered any detrimental affect in the nature of a salary decrease, layoff, reduction in benefits, or change in employment duties or opportunities. Without a present adverse action, any justiciable controversy between the parties here at issue is prospective and purely speculative in nature. The dispute in the instant case concerns appellant's rights in the event an adverse employment action is taken against her. Clearly, such a dispute fails to rise to the level of a justiciable controversy, rendering any decision purely advisory in nature. Until an action is taken which triggers the protections and rights claimed to have been lost as a result of the classification change, no genuine controversy exists and appellant's claim is not ripe for adjudication. The Kittrells I Court thus affirmed the trial court's decision. Id. Subsequently, Ms. Kittrells filed a complaint in the Cuyahoga Court of Common Pleas pursuant to Section 1983, Title 42, U.S. Code 81983, seeking equitable and declaratory relief, compensatory damages and attorney fees. Ms. Kittrells alleged that as a result of the state's reclassification of her position, she lost a protected property interest in violation of the Fourteenth Amendment to the United States Constitution. Additionally, Ms. Kittrells alleged that as a result of the civil service reclassification, she was denied due process of law in violation of -6- her rights protected by the Fourteenth Amendment to the United States Constitution because she was denied prior sufficient notice. Both appellees and Ms. Kittrells moved for summary judgment. Ms. Kittrells' position was that she was entitled to summary judgment because: (1) there was no dismissal of Ms. Kittrells' claim on the merits; (2) her claim presents a justiciable controversy; (3) her classified civil service status constitutes a property interest which is entitled constitutional protection under the Due Process Clause of the Fourteenth Amendment; and (4) appellees are not entitled to qualified immunity. Appellees attached numerous documents in support of their motion for summary judgment. Appellees presented four arguments to support their contention that summary judgment should be granted in their favor. First, the doctrine of res judicata bars Ms. Kittrells from relitigating her claim. Second, Ms. Kittrells' claim fails to present a justiciable controversy. Third, Ms. Kittrells' due process argument lacks merit because she does not have a legitimate property interest in her employment status, i.e., classified civil service. Fourth, appellees' act of correcting Ms. Kittrells' classified civil service designation did not violate any clearly established constitutional right which a reasonable official would have known of at the time of appellees' actions. Thus, appellees are entitled to qualified immunity. The trial court granted summary judgment in favor of appellees. Ms. Kittrells timely appeals from the trial court's -7- ruling and raises the following assignments of error for this court to review: I. DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE THERE WAS NO PRIOR DISMISSAL OF PLAINTIFF'S CLAIMS ON THE MERITS. II. SUMMARY JUDGMENT AGAINST PLAINTIFF-APPELLANT WAS ERROR BECAUSE PLAINTIFF-APPELLANT'S CLAIMS PRESENTED A JUSTICIABLE CONTROVERSY UNDER SECTION 1983. III. PLAINTIFF-APPELLANT'S CLASSIFIED CIVIL SERVICE STATUS CONSTITUTED A PROPERTY INTEREST ENTITLED TO CONSTITUTIONAL PROTECTION UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. IV. DEFENDANTS WERE NOT ENTITLED TO QUALIFIED IMMUNITY, NOR WOULD SUCH IMMUNITY CAUSE PLAINTIFF-APPELLANT TO BE DENIED EQUITABLE RELIEF. II. This court set forth the standard of review on a motion for summary judgment in Stone v. Greater Cleveland Regional Transit Authority (1993), 92 Ohio App.3d 373. In Stone, we followed the direction of Manofsky v. Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 663, 666, in stating: "[P]ursuant to Civ.R. 56(C), summary judgment is proper if the trial court determines that: "'(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.' Temple v. Wean United, Inc. (1977) 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; see, also, Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1, 2, 546 N.E.2d 975, 976. -8- "Once summary proceedings have been properly initiated, the responding party must set forth specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance upon the pleading is insufficient. Civ.R. 56(E); see, also, Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552-2553, 91 L.Ed. 2d 265, 273-274. The dispute must be 'material' in that the facts involved had the potential to effect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. The issue to be tried must also be 'genuine' allowing reasonable minds to return a verdict for the nonmoving party. Id., 477 U.S. at 248-252, 106 S.Ct. at 2510-2512, 91 L.Ed. 2d at 211-214." Stone, 92 Ohio App.3d at 378. A. In Ms. Kittrells' first assignment of error, she attacks the res judicata basis of the trial court's ruling granting summary judgment. She argues that the trial court erroneously relied on the doctrine of res judicata when it granted summary judgment in favor of appellees. Under the doctrine of res judicata, final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. Norwood v. McDonald (1943), 142 Ohio St. 299, quoting 30 American Jurisprudence (1940), 908, Judgment, Section 161. Ms. Kittrells cites the Ohio Supreme Court's ruling in State ex rel. Schneider v. Bd. of Educ. of the North Olmstead School District (1988), 39 Ohio St.3d 281, for the proposition of law that a court's judgment entry indicating lack of jurisdiction does not give rise to res judicata. Id. at 283. Appellees counter that -9- Ms. Kittrells' claims were previously litigated, therefore, Ms. Kittrells is barred from relitigating the claims in her complaint under the doctrine of res judicata. The court in Indep. Ins. Agents of Ohio v. Duryel (1994), 95 Ohio App.3d 7. addressed the doctrine of res judicata and its application to subsequent litigation engaged in by the same parties or their privities. In pertinent part, the court stated: Some writers discuss res judicata as having two aspects. The first aspect is generally what is known as the concept of res judicata and is sometimes referred to as "claim preclusion" or "claim bar." This concept is the effect of a prior judgment acting as a bar to a second action on the same claim - that is a bar to the entire action in subsequent litigation. The second aspect, frequently referred to as "issue preclusion" or "collateral estoppel," is the effect of a prior judgment precluding relitigation of specific issues in a second action between the same parties or their privies. It precludes issues determined in the first action from being relitigated in the second action. See Restatement of the Law 2d, Judgments (1982) Section 27; Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 2 OBR 732, 443 N.E. 2d 978. *** Under res judicata, to determine whether a second action is the same as the claim for relief [footnote omitted] in the first action and, therefore, barred by the prior judgment, "the primary tests are the identity of investitive facts creating the right of action in each case; the identity of the evidence necessary to sustain each action; and the accrual of the alleged rights of action at the same time." [Citation omitted.] *** "[W]hether different proofs are required to sustain the two actions is said to be the best and most accurate test in determining whether the former action is a bar." [Citation omitted]. Id., at 12-13. This court agrees with appellees' contention that the doctrine of res judicata bars Ms. Kittrells from relitigating issues determined in a prior action. Indep. Ins. Agents. Specifically, -10- the doctrine of res judicata precludes further litigation because issues raised in Ms. Kittrells' complaint were determined by Kittrells I. In Kittrells I, Ms. Kittrells sought a declaratory judgment regarding her civil service status. In addition, she sought to reverse the SPBR's ruling. Id. Ms. Kittrells argued on appeal that the Franklin County Court of Common Pleas erred when it affirmed the SPBR's ruling that it lacked jurisdiction to hear appeals stemming from a change in status, i.e., from the classified service to unclassified service. The Kittrells I Court ruled that because Ms. Kittrells did not suffer any adverse employment action as a result of the change in status, the SPBR lacked jurisdiction to hear Ms. Kittrells' appeal pursuant to R.C. 124.03. Id. This ruling went to the substance of Ms. Kittrells' complaint and constituted an adjudication on the merits. Kepchak v. Lime (1975), 44 Ohio St.2d 3. In the case herein, Ms. Kittrells seeks inter alia a declaratory judgment as to her civil service status. Given the foregoing, Kittrells I encompasses the substantive issues raised in the underlying complaint. The doctrine of res judicata precludes relitigation of specific actions between the same parties and their privies. Indep. Ins. Agents. Herein, the parties named in Kittrells I are identical to the parties named in the underlying action. In Kittrells I, the named parties included Virgil E. Brown, former -11- Director of the Ohio Lottery Commission and the Ohio Department of Administrative Services. In the case at bar, Ms. Kittrells named Mr. Perry, the former Director of the Ohio Department of Administrative Services. In a summary judgment proceeding, the nonmovant may not rely on the pleadings, but must submit evidence demonstrating a genuine issue of material fact pending for litigation. Here, Ms. Kittrells has not submitted evidence to support her claim that the doctrine of res judicata does not bar her from relitigating issues that have been determined by Kittrells I. Under the standard of Civ.R. 56, the trial court did not err when it granted summary judgment in favor of appellees. In light of the evidence, reasonable minds would come to but one conclusion, that the doctrine of res judicata bars Ms. Kittrells from relitigating issues determined previously by Kittrells I. Temple. Thus, summary judgment was properly granted by the trial court because no genuine issue of material fact remained pending for litigation. Harless. Accordingly, appellant's first assignment of error is overruled. B. Ms. Kittrells further asserts in her second assignment of error that the trial court erred in finding that she did not present a justiciable controversy under Section 1983. Appellees, on the other hand, contend summary judgment was proper because Ms. Kittrells failed to present a justiciable controversy under Section 1983, Title 42, U.S. Code. -12- Section 1983, Title 42, U.S. Code states in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. A plaintiff may have a cognizable claim under Section 1983, Title 42, U.S. Code when plaintiff establish: (a) the deprivation of a right to be protected by statute or the Constitution, and (b) that the defendant acted under color of state law. Duncan v. Pereck (6th Cir. 1983), 752 F.2d 1135, 1140. Ms. Kittrells asserts that a justifiable controversy exists under Section 1983, because appellees allegedly deprived her of a property interest in her classified employment status without due process of law. In Kittrells I, however the court accepted appellees position by determining that no justiciable controversy existed as a result of appellees correction of her classified employment status. The court reasoned that Ms. Kittrells could not articulate adverse actions, e.g., termination, suspension, removal, as a result of the correction. Id. As the Kittrells I court stated "*** [Plaintiff has] sustained no adverse action." Accordingly, Ms. Kittrells second assignment of error is overruled. C. -13- In the third assignment of error, Ms. Kittrells submits that her classified civil service position constituted a property interest entitled to constitutional protection. Appellees contend that Ms. Kittrells argument should fail because Ms. Kittrells did not have a legitimate property interest in her employment status. The Supreme Court of the United States held in Cleveland Bd. of Educ. v. Laudermill (1985), 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494, that a property interest is a classified civil service status which cannot be denied without affording the employee due process. To invoke the protection of procedural or substantive due process afforded by the Fourteenth Amendment, the plaintiff must establish the existence of a recognized property interest in the benefit to which she claims she is entitled. Vodila v. Cleveland (N.E. Ohio 1985), 613 F.Supp. 69. Whether a person has a constitutionally protected property interest in a specific employment status must be decided with reference to state law. Ryman v. Reichart (S.D. 1985), 604 F.Supp. 467. An unclassified employee's employment status does not rise to a protected property interest under the law. See Shearer v. Cuyahoga County Hospital (1986), 34 Ohio App.3d 59. State employees are divided into two classifications pursuant to R.C. 124.11, classified and unclassified civil service. Designating a position as classified or unclassified is in itself a lawful action on the part of the appointing authority. Lawrence v. Edwin Shaw Hospital (1986), 34 Ohio App.3d 157. Whether an employee -14- is actually in classified or unclassified civil service is determined by the employee's actual job duties. See State ex rel. Charlton v. Corrigan (1988), 31 Ohio St.3d 68. It is possible that the designation of classified or unclassified may be changed to reflect an employee's actual job duties as opposed to duties initially signed or listed on a job description. As explained by the court: There is one circumstance under which a classified position may be changed to an unclassified position. Namely, a position which has been erroneously listed as classified when, in fact, it should be unclassified because the employee is an assistant holding a fiduciary relationship to a principal executive officer [as governed by O.R.C. Section 124.11(A)(9)]. Essalburne v. Ohio Dept. of Agriculture (1985), 29 Ohio App.3d 152, 160. R.C. 124.34 sets forth the limitations pertinent to classified state service employees. A classified state service employee who is subject to adverse employment actions may appeal the action to the SPRB. R.C. 124.03. A classified civil service employee has property rights requiring due process only against salary education, demolition, supervision or remand. Jackson v. Kurtz (19790, 65 Ohio App.2d 152. In a summary judgment procedure, the nonmovant may not rest on the pleadings, but must, set forth some evidence demonstrating a genuine issue of material fact. Civ.R. 56(C); Temple. Herein, R.C. 124.34 does not have a provision specifying that an employee, classified or unclassified, has a protected right to a specific civil service classification. Ms. Kittrells has failed to produce -15- evidence demonstrating that a material issue of genuine fact exists concerning her claim that an employee, classified or unclassified, has a protected right to a specific civil service classification. Given the foregoing, reasonable minds can come to but one conclusion that Ms. Kittrells did not suffer a deprivation of a protected property interest under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Accordingly, the trial court did not err when it granted appellees' motion for summary judgment on the ground that Ms. Kittrells' classification did not constitute a protected property interest. Accordingly, this assignment of error is overruled. D. In the fourth assignment of error, Ms. Kittrells asserts the trial court erred when it granted summary judgment to appellees on the ground that appellees were entitled to qualified immunity. Appellees counter that the act of correcting Ms. Kittrells' classified civil service description did not violate any clearly established constitutional right which a reasonable official would have known. Thus, the trial court did not err. The United States Supreme Court has also held that government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional right of which a reasonable person would have known. Harlow v. Fitzgerald (1982), 457 U.S. 800, 122 S.Ct. 2727, 73 L.Ed.2d 396. -16- The Supreme Court expounded the concept of qualified immunity in Anderson v. Creighton (1987), 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523. The court developed a two-step analysis to assess a claim of qualified immunity. First, the court held that whether a public official is protected from liability depends on whether there were clearly established legal rules at the time the action was taken and the objective legal reasonableness of the action. Second, if the law is clearly established, the court must consider whether, in the specific circumstances of the alleged action, a "reasonable official" would have believed that the challenged action was lawful in light of the information possessed by the officer. Anderson, 483 U.S. at 641. Under Anderson, the pertinent inquiry is whether the law was clearly established at the time the correction occurred, as to whether the Fourteenth Amendment would prohibit a correction in a civil service classified designation from classified to unclassified. Clearly established law is determined by decisions from federal constitutional, statutory or case law. Dominque v. Telb (6th Cir. 1987), 831 F.2d 673, 677. In addition, decisions from the state supreme court sits may determine clearly established law. Robinson v. Bibb (6th. Cir. 1987), 840 F.2d 349, 351. In the case at bar, appellant has failed to demonstrate the existence of pre-existing law from the United States Supreme Court, the United States Sixth Circuit Court of Appeals, the United States District Courts, and the Ohio Supreme Court that specifically -17- establishes that a government official deprives an employee of constitutional rights if the government official corrects the civil service designation from classified to unclassified. In light of the absence of pre-existing law addressing an entitlement to a property interest in a civil service status designation, appellees are entitled to qualified immunity. Given the foregoing, Ms. Kittrells contention is not well taken. Accordingly, Mr. Kittrells' fourth assignment of error is overruled. Judgment affirmed. -18- It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN T. PATTON, J., CONCUR; ANN DYKE, J., CONCURS IN JUDGMENT ONLY. PRESIDING JUDGE SARA J. HARPER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 25(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .