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McIntosh v. Cuyahoga Metropolitan Housing Authority2/7/2002
JUDGMENT: AFFIRMED.
Plaintiff-appellant Brenda Harper McIntosh appeals from the trial court's granting summary judgment in favor of defendant- appellee Cuyahoga Metropolitan Housing Authority ( CMHA ). We find no error and affirm the trial court's judgment.
On October 29, 1990, McIntosh was hired by the CMHA Executive Director, Claire Freeman-McCown, as part of CMHA's executive level staff. According to McIntosh, Freeman-McCown told her that the position was permanent as long as she performed satisfactorily.
Prior to being hired, McIntosh worked for the U.S. Department of Housing and Urban Development ( HUD ) in Washington, D.C. and had job security in that position, which made her hesitant to leave. Freeman-McCown recruited her to fill the CMHA position.
On June 12, 1998, the CMHA legal counsel verbally informed McIntosh of her termination. He gave her a letter, signed by the Acting Director of Human Resources, informing her that the reason for her termination was that her position was being eliminated.
According to McIntosh, at the time of her termination, there were vacant positions available for which she was qualified, but she was not offered any of them.
On May 11, 2000, McIntosh filed a complaint against CMHA alleging claims for wrongful termination, breach of express and implied contract, and promissory estoppel. Both parties filed motions for summary judgment, and on February 8, 2001, the trial court granted CMHA's motion for summary judgment in a five-page opinion.
McIntosh appeals and raises five assignments of error. We will address the assignments of error out of order.
IV. NO ADMINISTRATIVE REMEDIES WERE AVAILABLE TO PLAINTIFF-APPELLANT.
The failure to exhaust administrative remedies constitutes an affirmative defense to the complaint. Johnson v. Wilkinson (1992), 84 Ohio App.3d 509, 515. CMHA raised the defense in both its answer to the complaint and its motion for summary judgment.
The policies behind the exhaustion doctrine were explained in Nemazee v. Mt. Sinai Medical Center (1990), 56 Ohio St.3d 109, 111, as follows:
Exhaustion of [administrative remedies] is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review. Weinberger v. Salfi (1975), 422 U.S. 749, 765 [95 S. Ct. 2457, 2467, 45 L. Ed. 2d 522]. The purpose
* is to permit an administrative agency to apply its special expertise * and in developing a factual record without premature judicial intervention.' Southern Ohio Coal Co. v. Donovan (C.A. 6, 1985), 774 F.2d 693, 702."
As explained by this court in The Salvation Army v. Blue Cross and Blue Shield of Northern Ohio (1993), 92 Ohio App.3d 571, 577:
he doctrine is a court-made rule of judicial economy that allows the agency to function efficiently and to afford it an opportunity to correct its own errors while benefitting the parties and the courts by virtue of the agency's experience and expertise. In this way, a record adequate for judicial review will be compiled.
Administrative Order #11, which consists of the personnel policy of CMHA as adopted by the CMHA Board of Commissioners, provided a two-step grievance procedure in Part II, Section XVII, for hearing employee disputes. McIntosh claims that the grievance procedure did not apply to CMHA employees who were terminated due to a re
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