I concur with the majority opinion except for the issue of back pay, on which I respectfully dissent.
Relator has asked for back pay, seniority rights, and benefits. The leading case on this issue, Morgan v. Cincinnati (1986), 25 Ohio St. 3d 285, 25 OBR 337, 496 N.E.2d 468, provides in its syllabus:
"Where a civil service employee shows that a promotion to which he was entitled was delayed as the result of actions taken by a municipality in violation of R.C. 124.44, that employee is entitled to recover back pay and seniority for the period of the delay. (State, ex rel. Gibbons, v. Cleveland [1984], 9 Ohio St. 3d 216 [9 OBR 526, 459 N.E.2d 892], limited.)"
The position of the court is best expressed in the language of the concurring opinion of Justice Holmes,25 Ohio St.3d at 291, 25 OBR at 342, 496 N.E.2d at 474:
"Compensation generally is not payable to an employee unless and until his right to such compensation is established by appointment, and then only after the effective date of such appointment. This we stated in Gibbons. What was not provided for in Gibbons was the allowance of a claim by the employee when there is a finding of a refusal to appoint based upon bad faith of the city, or a showing of a conscious, intentional violation of the civil service laws. The judgment in this case fills that void by providing that where the denial of a proper appointment has been occasioned by reasons of maliciousness or bad faith, as alleged, the employee may seek wages and benefits payable and due from the date the appointment should have been made." *Page 323
Thus, the question of back pay and benefits depends on whether respondents acted in bad faith, and that issue cannot be resolved on this motion for summary judgment.
There is a significant bad faith issue in this case. If DeMint had been passed over for the appointment because he was a black man or because he was a woman, bad faith would be almost irrefutably presumed. Discrimination is discrimination regardless of the status of the person against whom it is done. The majority seems to hold that discrimination against a white male is somehow different from other kinds of illegal discrimination, and that there somehow is good faith discrimination and bad faith discrimination, depending on who suffers from it. I am not able to make that kind of distinction, and thus I dissent.
I emphasize here that I do not reach whether there was, in fact, illegal, bad faith discrimination in this case, but only that I do not see how the issue of bad faith, or the lack of it, can be decided on summary judgment.