Kadar v. Ohio Dept. of Public Safety

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[Cite as Kadar v. Ohio Dept. of Public Safety, 2005-Ohio-5064.] IN THE COURT OF CLAIMS OF OHIO www.cco.state.oh.us KAREN J. KADAR : Plaintiff : v. : CASE NO. 2004-06046 Judge Joseph T. Clark Holly True Shaver, Magistrate : MAGISTRATE DECISION OHIO DEPARTMENT OF PUBLIC SAFETY : Defendant : : : : : : : : : : : : : : : : : {¶ 1} Plaintiff brought this action against defendant alleging claims of breach of contract and promissory estoppel. The case proceeded to trial on the issues of liability and damages before a magistrate of the court. {¶ 2} On October 15, 2002, defendant posted a job opportunity for a Planner Supervisor which was described as a classified, exempt position under the general direction of the administrator of the Governor s Highway Safety Office (GHSO). The position was in Pay Range 13, with a salary from Step 1 ($22.13 hourly/$46,030 annually) to Step 6 ($28.90 hourly/$60,112 annually). Plaintiff submitted a civil service application and was interviewed for the position. {¶ 3} After receiving authority from defendant s human resources department, Lorrie Laing, administrator of the GHSO, telephoned plaintiff on December 9, 2002, and offered her the position at the Step 1 salary. Plaintiff expressed interest in the position but asked if Laing could offer her a higher salary than Step 1 based upon her experience and relevant work history. Laing told Case No. 2004-06046 -2- MAGISTRATE DECISION plaintiff that she would seek approval for a higher salary step on plaintiff s behalf. {¶ 4} On December 11, 2002, Laing sent a memo to John Demaree, defendant s human resource management administrator, wherein Laing requested that plaintiff s (Defendant s Exhibit D.) starting wages begin at Step 3. Pursuant to defendant s policy regarding advance step appointments (Defendant s Exhibit T) a request for plaintiff s advanced step appointment was submitted to Ramona Swayne, administrator of the human resources division of the Department of Administrative Services (DAS). On December 17, 2002, Swayne approved plaintiff s advanced step appointment at Step 3, pay range 13. (Defendant s Exhibit F.) {¶ 5} On December 17, 2002, Laing received an e-mail from Kimberly McKinney, human resources specialist, wherein she stated that plaintiff had been approved for the Step 3 advancement. Laing responded to the e-mail by asking what the starting salary and hourly rate would be, and McKinney replied that the hourly rate would be $25.95 with an annual salary of $53,976. Exhibit H.) (Defendant s Laing then sent an e-mail to plaintiff stating that the Governor s office had approved an increase in her starting salary to Step 3, with a starting salary of $25.95 per hour ($53,976 annually). (Defendant s Exhibit I.) Plaintiff accepted the position and began her employment with defendant on January 27, 2003. {¶ 6} In February 2003, plaintiff requested a letter from defendant s division of human resources confirming her date of hire and hourly rate. mortgage loan Plaintiff intended to use the letter for a application. On February 18, 2003, plaintiff Case No. 2004-06046 -3- MAGISTRATE DECISION received a letter from McKinney that stated plaintiff s hourly rate was $24.63. {¶ 7} Upon receipt of the letter, plaintiff asked McKinney for clarification concerning her hourly rate. McKinney told plaintiff that Step 3 of Pay Range 13 was $24.63 and forwarded a copy of the state of Ohio pay tables for her to review. In response, plaintiff gave McKinney a copy of the December 17, 2002, e-mail from Laing that stated that the Step 3 hourly rate was $25.95. After reviewing the e-mail and the pay table, McKinney told plaintiff that she must have looked at the wrong line on the pay table when she told Laing the Step 3 rate. McKinney apologized for the mistake. {¶ 8} Plaintiff then sent an e-mail to Laing explaining what had occurred and asking Laing how to proceed in obtaining the $2,745.60 difference of her starting salary. Laing investigated the matter but plaintiff s starting salary was not increased. At the time of trial, plaintiff was still employed by defendant. {¶ 9} Plaintiff asserts that defendant breached its employment contract with her by not paying her the hourly rate quoted in Laing s e-mail. In the alternative, plaintiff asserts that she relied to her detriment on the hourly rate quoted by Laing and that, consequently, defendant should be found liable to her under a theory of promissory estoppel. Defendant asserts that plaintiff was hired at the statutory Step 3 rate of $24.63 per hour and that it is not obligated to pay plaintiff the mistaken rate quoted in Laing s e-mail. BREACH OF CONTRACT Case No. 2004-06046 {¶ 10} -4- MAGISTRATE DECISION Plaintiff asserts that the December 17, 2002, e-mail from Laing constitutes an enforceable employment contract. In order for plaintiff to prevail on her breach of contract claim, she must prove by a preponderance of the evidence that she negotiated and entered into either a written or oral contract with the officers of the state designated by law to have the authority to negotiate and make contracts. Drake v. Medical College of Ohio (Sept. 24, 1996), Court of Claims No. 95-03576. {¶ 11} R.C. 124.06 states: {¶ 12} No person shall be appointed *** as an officer or employee in the civil service, in any manner or by any means other than those prescribed in this chapter, and the rules of the director of administrative services ***. {¶ 13} R.C. 124.15(E) states: {¶ 14} (E) New employees paid in accordance with schedule B of division (A) of this section or schedule E-1 of section 124.152 [124.15.2] of the Revised Code shall be employed at the minimum rate established for the range unless otherwise provided. Employees with qualifications that are beyond the minimum normally required for the position and that are determined by the director to be exceptional may be employed in, or may be transferred or promoted to, a position at an advanced step of the range. {¶ 15} *** Ohio Adm.Code 123:1-45-01 allows the DAS director to issue directives to implement the provisions of department rules and to establish the necessary forms or procedures that carry out Chapter 124 of the Revised Code. {¶ 16} As stated above, Defendant s Exhibit T sets forth its policy regarding advance step appointments. The exhibits in Case No. 2004-06046 -5- MAGISTRATE DECISION evidence demonstrate that defendant followed the proper procedures to hire plaintiff at the advanced rate of Step 3. {¶ 17} does not The magistrate finds that the December 17, 2002, e-mail constitute plaintiff s employment contract. R.C. 124.152(B) sets forth the rates of pay applicable to classified, exempt state employees. Laing did not have authority to offer plaintiff anything other than what had been approved by defendant, Step 3, range 13. Public employees may not bind the state by acts outside of their express authority. Kirk Williams Co. v. Ohio State Univ. Bd. of Trustees (June 13, 1989), Franklin App. No. 88AP-697. {¶ 18} Moreover, based upon the applicable pay rate table (Defendant s Exhibit G) and McKinney s testimony, the magistrate finds that the rate of pay quoted in the e-mail was a mistake and that there was no meeting of the minds. to the essential terms enforcing the contract. 2002-Ohio-2985, at ¶16. of the A meeting of the minds as contract is a requirement to Kostelnik v. Helper, 96 Ohio St.3d 1, Regardless of negligence, or failure to exercise care when entering into a contract, a party is entitled to show that there was no meeting of the minds, or that the meeting [of the minds] was on different terms. Jennings-Lawrence Co. (1962), {¶ 19} Parklawn Manor, Inc. v. 119 Ohio App. 151, 156. In short, plaintiff was paid in accordance with the statutory rate and thus, defendant did not breach her employment agreement. PROMISSORY ESTOPPEL {¶ 20} The Tenth District Court of Appeals recently stated: as a general rule, promissory estoppel does not apply against the Case No. 2004-06046 -6- MAGISTRATE DECISION state, its agencies, arms and agents. that [a] properly functioning The basis for this rule is government cannot tolerate individual state actors binding the state to actions that exceed or contravene its authority. In Ohio Assoc. of Pub. School Emp., this court noted that we have consistently echoed the rationale for the general rule and refused to apply promissory estoppel to contravene statutory authority. (Citations omitted.) Raabe v. Ohio Bd. of Speech-Language Pathology and Audiology, Franklin App. No. 04AP-954, 2005-Ohio-2335, at ¶29. {¶ 21} plaintiff s Assuming, arguendo, that Laing attempted to negotiate salary representations statutory law. that to she a rate made higher would be than Step contrary to 3, any express Drake v. Medical College of Ohio (1997), 120 Ohio App.3d 493. {¶ 22} Moreover, mistaken advice or opinions of a government agent do not give rise to a claim of promissory estoppel. v. Emigh (1992), 81 Ohio App.3d 312. Halluer The court finds that the mistaken rate of pay as set forth in Laing s e-mail does not give rise to a claim of promissory estoppel. {¶ 23} For the foregoing reasons, the magistrate finds that plaintiff has failed to prove any of her claims by a preponderance of the evidence and accordingly, recommends that judgment be entered in favor of defendant. {¶ 24} A party may file written objections to the magistrate s decision within 14 days of the filing of the decision. A party shall not assign as error on appeal the court s adoption of any finding or conclusion of law contained in the magistrate s decision unless the party timely and specifically objects to that finding or conclusion as required by Civ.R. 53(E)(3). Case No. 2004-06046 -7- MAGISTRATE DECISION ________________________________ HOLLY TRUE SHAVER Magistrate Entry cc: Karen J. Kadar 7766 Mitchell DeWitt Road Plain City, Ohio 43064 Plaintiff, Pro se Stephanie D. Pestello-Sharf John P. Reichley Assistant Attorneys General 150 East Gay Street, 23rd Floor Columbus, Ohio 43215-3130 Attorneys for Defendant HTS/cmd Filed August 24, 2005 To S.C. reporter September 26, 2005

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