Opinion
Case No. 2:04-cv-204.
November 16, 2005
OPINION AND ORDER
Plaintiff Richard Reddick brings this action under 42 U.S.C. § 1983 ("Section 1983") alleging that Defendants violated the First, Fourth, Fifth, Seventh and Fourteenth Amendments to the United States Constitution and the laws and public policies of the State of Ohio when they reduced his full-time employment to part-time and subsequently terminated his employment. With the consent of the parties, 28 U.S.C. § 636(c), this matter is before the Court on Defendants' Motion for Summary Judgment (Doc. # 29). For the reasons that follow, Defendants' Motion for Summary Judgment is GRANTED.
I. FACTS
Plaintiff was hired by the Coshocton County Board of Commissioners ("BCC") on January 18, 1995, to perform maintenance and mechanical duties at the Coshocton County Regional Airport ("Airport"). Complaint, ¶ 18; Reddick v. Coschocton County Regional Airport Authority, Case No. 04CA017, attached as Exhibit 1A to Defendants' Motion for Summary Judgment (" Appellate Decision") ¶ 4. The BCC hired Plaintiff pursuant to a resolution that provided that the BCC could contract with the Airport to provide County employees to serve as staff at the Airport. Appellate Decision, ¶ 2. At the time Plaintiff was hired, he was considered a classified Ohio civil servant. Id., ¶ 5.
On April 9, 2001, the BCC and the Airport entered into an agreement whereby the BCC divested itself of any employment relationship with an Airport employee, except for the handling of payroll. Id., ¶ 15. As a result of the agreement, Plaintiff's employment status purportedly changed from a classified to an unclassified civil servant. Id.
Plaintiff worked forty (40) hours per week at the Airport until February 18, 2003, when he was involuntarily moved from full-time to part-time status as a result of the County's financial difficulties. (Reddick Depo. at 59, 61). Plaintiff informed his mother-in-law, Margaret Jones, that his hours were reduced due to the "budget crunch." (Jones Depo. at 15). Ms. Jones obtained Airport budgetary information and attended the next meeting of the Board of Trustees of the Coshocton County Regional Airport Authority ("Board"). Id. at 21. Ms. Jones questioned the Board about the efforts, if any, it had made to reduce the budget without reducing Plaintiff's hours. Id. Additionally, Ms. Jones suggested that Defendants could allow Plaintiff to work thirty-five (35) hours per week and still stay within the budget the Board projected. Id. at 22.
In late March or early April 2003, Plaintiff scheduled a meeting with his attorney in Columbus, Ohio during his regularly-scheduled hours at the Airport. (Reddick Depo. at 65-66). Plaintiff, however, did not meet with his attorney in person and instead spoke with him on the telephone for approximately one hour. Id. at 65-66, 69. Plaintiff did not report to work that day. Id. The following day, Plaintiff's supervisor, Bethel Toler, questioned Plaintiff as to his absence. Id. at 74. Plaintiff responded that he had planned to call the unemployment office and to meet with his attorney that day. Id.
On April 3, 2003, Plaintiff was called to a meeting with Mr. Toler and the County Prosecuting Attorney, Bob Batchelor, regarding his absence. Id. at 75. Mr. Batchelor explained to Plaintiff that, although the Airport was considering terminating him for his absence without leave, Plaintiff could avoid termination if he agreed to designate the absence as sick or vacation leave. Id. at 76-77. Plaintiff refused, stating that he had not been sick and that he had not taken vacation. Id. Plaintiff, however, also admitted that he previously used sick leave for personal reasons. Id. The Airport terminated Plaintiff for his absence from duty without leave. (Toler Depo. at 44).
Plaintiff filed two appeals with the State Personnel Board of Review ("SPBR"), arguing that he had been unlawfully terminated and reduced from full-time to part-time employment. (Reddick Depo. at 80); Defendants' Motion for Summary Judgment, Exhibit 1C. On December 11, 2003, the SPBR dismissed both of Plaintiff's appeals on jurisdictional grounds. Defendants' Motion for Summary Judgment, Exhibit 1C. Specifically, the SPBR concluded that, as a result of the April 9, 2001, agreement between the BCC and the Airport, Plaintiff's employment status had changed from classified to unclassified, thereby depriving it of jurisdiction. Id.
Pursuant to the Ohio Revised Code ("O.R.C.") § 124.34, the SPBR has jurisdiction to hear appeals from classified Ohio civil servants. See O.R.C. § 124.34. Classified civil servants may be terminated only for cause and are employed during good behavior and efficient service. Id.
Pursuant to O.R.C. § 124.34, Plaintiff appealed the SPBR's decision to the Coshocton County Court of Common Pleas. Defendant's Motion for Summary Judgment, Exhibit 1B. On August 2, 2004, that court affirmed the SPBR's decision. Id.
Plaintiff appealed the decision of the common pleas court to the Fifth Appellate District Court. Appellate Decision, ¶ 1. On May 3, 2005, the appellate court reversed and remanded the matter to SPBR, holding that the SPBR did not lack jurisdiction to hear Plaintiff's appeals. Id., ¶ 16. The appellate court reasoned that the BCC denied Plaintiff due process when it failed to provide Plaintiff with notice of and opportunity to respond to the purported change to his civil service status. Id., ¶ 14.
Defendants assert, and Plaintiff does not dispute, that Plaintiff's appeal of the reduction in his hours and compensation and his appeal of his termination are currently pending before the SPBR pursuant to the court's order of remand.
On March 15, 2004, during the pendency of the administrative and state court proceedings, Plaintiff filed the instant case. On July 1, 2005, Defendants filed their Motion for Summary Judgment (Doc. # 29), and, on August 3, 2005, Plaintiff filed his Memorandum in Opposition to Defendants' Motion for Summary Judgment (Doc. # 32). On August 11, 2005, Defendants filed their Reply to Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment (Doc. # 34). The case is now ripe for review.
II. STANDARD OF REVIEW
The standard for summary judgment is well established. This standard is found in Rule 56 of the Federal Rules of Civil Procedure, which provides in pertinent part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). Pursuant to Rule 56(c), summary judgment is appropriate if "there is no genuine issue as to any material fact. . . ." In making this determination, the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970). Summary judgment will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate, however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The mere existence of a "scintilla of evidence" in support of the opposing party's position will be insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 251.
III. ANALYSIS
In his Complaint, Plaintiff alleges causes of action under Section 1983. Specifically, Plaintiff claims that Defendants violated the First, Fourth, Fifth, Seventh and Fourteenth Amendments to the United States Constitution and Section 10 of the Ohio Constitution when they reduced his full-time status and when they terminated him from their employ. In addition, Plaintiff alleges that his termination constitutes wrongful discharge in violation of the public policy of the State of Ohio.
In their summary judgment motion, Defendants contend that they are entitled to judgment as a matter of law on all Plaintiff's claims.
A. Section 1983
"Section 1983 provides a cause of action for `the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' by any person acting `under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.'" Gomez v. Toledo, 446 U.S. 635, 638 (1983) (citing 42 U.S.C. § 1983). To state a cause of action under Section 1983, the "plaintiff must allege that some person has deprived him of a federal right. . . . [and] he must allege that the person who has deprived him of that right acted under color of state or territorial law." Id. at 640 (citing Monroe v. Pape, 365 U.S. 167, 171 (1961)). Additionally, a plaintiff claiming a procedural due process violation "bears the burden of demonstrating that the available state procedures were inadequate to compensate for the alleged unconstitutional deprivation." Collyer v. Darling, 98 F.3d 211, 223 (6th Cir. 1996) (citing Parratt v. Taylor, 451 U.S. 527, 543 (1981) and Sutton v. Cleveland, 958 F.2d 1339, 1349 (6th Cir. 1992)). See also Wilson v. Beebe, 770 F.2d 578, 583 (6th Cir. 1985) ( en banc). 1. Fourteenth Amendment: Procedural Due Process
42 U.S.C. § 1983 provides in full:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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.
The due process clause of the Fourteenth Amendment to the United States Constitution is properly raised where the aggrieved party has a property interest in his or her job. See Lee v. W. Reserve Psychiatric Habilitation Ctr., 747 F.2d 1062, 1067 (6th Cir. 1984). The parties agree that, in Ohio, non-probationary classified civil servants are vested with such an interest. See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985); O.R.C. § 124.34. Employees with a property interest in their jobs cannot be deprived of that interest without due process of law. Laudermill, 470 U.S. at 538.
The Fourteenth Amendment prohibits state actors from depriving "any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1.
Plaintiff alleges that his reduction in hours and pay and his eventual discharge violated due process of law guaranteed to him by the Fourteenth Amendment. Complaint ¶¶ 27, 28. Because he was hired as a classified civil servant in 1995, he continues to hold a property interest in his compensation and continued employment, and Defendants were obligated to provide him a hearing before moving him to part-time employment or terminating him. Id. ¶ 28.
In their summary judgment motion, Defendants argue that, although Plaintiff was originally hired as a classified civil servant, his status was changed on April 9, 2001, based on the agreement between the BCC and the Airport. Because that change in status is not among the claims asserted in this action, Defendants contend that Plaintiff no longer enjoys a property interest in his job and had no right to due process in connection with the subsequent reduction of hours and termination of his employment. Even if Plaintiff is considered a classified civil servant, however, Plaintiff's state law remedies are adequate, and he has not been deprived of his procedural due process rights. Plaintiff does not respond to this latter argument.
As discussed more fully below, the Court agrees with Defendants that Plaintiff has not shown, and cannot show, that his state law remedies are inadequate. Therefore, it is unnecessary for the Court to consider the lawfulness of Defendants' actions in reducing Plaintiff's hours and terminating his employment.
The United States Court of Appeals for the Sixth Circuit has specifically held that the state procedures currently pursued by Plaintiff are constitutionally adequate. Collyer, 98 F.3d at 227, 28. O.R.C. § 124.34, in relevant part, provides aggrieved classified civil service employees a full administrative hearing and judicial review:
In case of a reduction, suspension of more than three working days, fine in excess of three days' pay, or removal, except for the reduction or removal of a probationary employee, the appointing authority shall serve the employee with a copy of the order of reduction, fine, suspension, or removal, which order shall state the reasons for the action. The order shall be filed with the director of administrative services and the [SPBR], or the commission, as may be appropriate.
Within ten days following the date on which the order is served or, in the case of an employee in the career professional service of the department of transportation, within ten days following the filing of a removal order, the employee, except as otherwise provided in this section, may file an appeal of the order in writing with the [SPBR] or the commission. . . . If such an appeal is filed, the [SPBR] or commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, the appeal within thirty days from and after its filing with the [SPBR] or commission, and it may affirm, disaffirm, or modify the judgment of the appointing authority.
In cases of removal or reduction in pay for disciplinary reasons, either the appointing authority or the officer or employee may appeal from the decision of the [SPBR] or the commission to the court of common pleas of the county in which the employee resides in accordance with the procedure provided by section 119.12 of the Revised Code.O.R.C. § 124.34(B). "In addition, reinstated public employees are entitled to mandamus review to compel payment of backpay awarded by the SPBR." Collyer, 98 F.3d at 225 (citing State ex rel. Bispeck v. Bd. of Comm'rs of Trumbull County, 37 Ohio St. 3d 26, 27 (1988) and State ex rel. Martin v. City of Columbus, 58 Ohio St. 2d 261 (1979)). "In such a proceeding, the defending state agency may plead in its defense that the SPBR abused its discretion when ruling in favor of the employee." Id. (citing State ex rel. Ogan v. Teater, 54 Ohio St. 2d 235 (1978)).
Plaintiff's Complaint and his Memorandum in Opposition to Defendants' Motion for Summary Judgment, address only the claimed violations of due process based on the complete absence of predeprivation process. Nowhere does Plaintiff address the adequecy of the postdeprivation process pursued by him. It appears that Plaintiff takes the position that, even if the postdeprivation hearings in which he is engaged are adequate, his due process rights were nevertheless violated because he was entitled to and denied a predeprivation hearing. Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment, at 4. This argument is not well taken.
Assuming arguendo that Plaintiff did not receive sufficient predeprivation process, to maintain his Section 1983 action in this Court he still bears the burden of demonstrating that the postdeprivation process is inadequate. See Collyer, 98 F.3d at 224 ("even if the predeprivation process here were inadequate, our inquiry is not over. . . . Since we next conclude that [the plaintiff] had adequate postdeprivation remedies available, his § 1983 claims fail."); Sewell v. Jefferson County Fiscal Ct., 863 F.2d 461, 467 (6th Cir. 1988) (the employee who was denied a predeprivation hearing prior to demotion, but who was given postdeprivation process resulting in retroactive reinstatement with full back pay and benefits, could not maintain a procedural due process cause of action).
With regard to the postdeprivation process provided by O.R.C. § 124.34, the Sixth Circuit Court of Appeals held:
Though the road to postdeprivation process as provided by the State of Ohio was not without some bumps, the procedures in place are sufficiently "meaningful" to pass constitutional muster.Collyer, 98 F.3d at 228 (holding that because the postdeprivation process provided in O.R.C. § 124.34 is constitutionally adequate, the plaintiff's "procedural due process claims may not be considered by this Court.").
As the Court set forth in detail above, pursuant to O.R.C. § 124.34, Plaintiff appealed his reduction in pay and hours and his termination to the SPBR. The SPBR dismissed his appeal because it concluded that Plaintiff's change in status from classified to un-classified divested the SPBR of jurisdiction to hear his appeals. Although the Coshocton County Court of Common Pleas affirmed the SPBR's decision, the Court of Appeals for the Fifth Appellate District reversed and remanded Plaintiff's appeals to the SPBR, concluding that the SPBR was indeed vested with jurisdiction to hear Plaintiff's appeals. As noted, Plaintiff's appeal of his reduction in pay and hours and his appeal of his termination are currently pending before the SPBR.
The SPBR has the ability to fully remedy Plaintiff's alleged unconstitutional deprivations. Moreover, if the SPBR finds in favor of Defendants, Plaintiff has the right to appeal that decision to the Coshocton County Court of Common Pleas and to the Court of Appeals for the Fifth Appellate District. Thus, although the course of proceedings pursued by Plaintiff had not been "without some bumps," the postdeprivation process currently pursued by Plaintiff is constitutionally adequate. See Collyer, 98 F.3d at 228. Plaintiff has not been deprived of hisrocedural due process rights.
Accordingly, the Court GRANTS Defendants' Motion for Summary Judgment on Plaintiff's Section 1983 claim based on alleged violations of his procedural due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution.
2. First Amendment: Speech and Assembly
"It is well established that in order to make a claim that an employer's actions violated the First Amendment, a plaintiff must show that he or she was discharged because of his or her speech involving a matter of public concern." Collyer, 98 F.3d at 228-29 (citing Rankin v. McPherson, 483 U.S. 378 (1987), Connick v. Myers, 461 U.S. 138 (1983) and Rahn v. Drake Ctr., Inc., 31 F.3d 407 (6th Cir. 1994)).
In relevant part, the First Amendment to the United States Constitution provides: "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I.
In his Complaint, Plaintiff claims that Defendants reduced his pay and hours in retaliation for his and his family members' complaints to Defendants at public meetings. Complaint ¶¶ 21, 33. On deposition, however, Plaintiff concedes that he attended none of these meetings nor did he complain to any Defendant regarding the reduction in his pay and hours. (Reddick Depo. at 85-87). Instead, Plaintiff testified that it was his mother-in-law, Ms. Jones, who attended the meetings and who complained about Defendants' actions. Id.
In their summary judgment motion, Defendants argue that Plaintiff lacks standing to bring this First Amendment claim because the speech and assembly at issue were not his but were instead those of Ms. Jones. See Valley Forge Christian Coll. v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982) ("the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.") (citations omitted). Further, Defendants contend that Plaintiff points to no evidence that their employment decisions were linked in any way to Ms. Jones' speech but, instead that this claim is wholly speculative. See Bateman v. U.P.S., 31 Fed. Appx. 593, 598 (10th Cir. 2002) (holding that a purely speculative claim cannot withstand summary judgment).
In addition, Defendants argue that the speech at issue was not protected because it was not a matter of public concern, but instead concerned only Plaintiff's employment. See Thomson v. Scheid, 977 F.2d 1017, 1021 (6th Cir. 1992) (" First Amendment protection extends to a public employee's speech when he speaks as a citizen on a matter of public concern, but does not extend to speech made in the course of acting as a public employee") (citation omitted). Finally, Defendants contend that, even if the speech was a matter of public concern, Plaintiff has not demonstrated that the interest in speaking was not outweighed by the County's interest in promoting the efficient operation of the department. See Connick, 461 U.S. at 151 (the public employer has "the prerogative to remove employees whose conduct hinders efficient operation"); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1983)) ("The problem in any case is to arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.").
The Court agrees with Defendants' analysis. Accordingly, even when viewing all of the evidence in the light most favorable to Plaintiff, the Court concludes that there is no genuine issue of material fact related to Plaintiff's free speech and assembly claim. Accordingly, the Court GRANTS Defendants' Motion for Summary Judgment on Plaintiff's Section 1983 claim based on the First Amendment to the United States Constitution.
3. Fourth, Fifth and Seventh Amendments to the United States Constitution and Section 10 of the Ohio Constitution
In his Complaint, Plaintiff also claims that Defendants deprived him of the privileges and immunities guaranteed under the Fourth, Fifth and Seventh Amendments to the United States Constitution and under Section 10 of the Ohio Constitution. In their summary judgment motion, Defendants argue that Plaintiff offers no facts pertaining to any such claims. Plaintiff has made no response to this argument.
It is Plaintiff's burden to set forth affirmative evidence or specific facts showing a genuine issue for trial. See Street v. J.C. Bradford Co., 886 F.2d 1479 (6th Cir. 1989); Fed.R.Civ.P. 56(e). Plaintiff "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must `present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Street, 886 F.2d at 1479 (citations omitted). Plaintiff has not met his burden. In considering all of the evidence before it, the Court agrees with Defendants that there is no evidence supporting the allegation that these constitutional provisions are applicable to Plaintiff's claims.
Accordingly, considering all of the evidence in the light most favorable to Plaintiff, the Court cannot find even a scintilla of evidence to support these constitutional claims. Consequently, the Court GRANTS Defendants' Motion for Summary Judgment on Plaintiff's Section 1983 claims based on alleged violations of the Fourth, Fifth and Seventh Amendments to the United States Constitution and Section 10 of the Ohio Constitution. 4. Qualified Immunity
When a claim to qualified immunity arises in the context of a motion for summary judgment, "[the court] must first decide whether the plaintiff has stated a section 1983 claim against the individual defendants before addressing the qualified immunity question. . . . If [the plaintiff] has stated a claim, then [the court] must examine whether summary judgment is warranted on the grounds of qualified immunity."McLaurin v. Morton, 48 F.3d 944, 947 (6th Cir. 1995) (citing Black v. Parke, 4 F.3d 442, 445-46 (6th Cir. 1993) and Carlson v. Conklin, 813 F.2d 769, 771 (6th Cir. 1987)).
Because, for the reasons cited supra, the Court concludes that Plaintiff's Section 1983 claims cannot survive summary judgment, it need not reach the issue of qualified immunity.
B. Wrongful Discharge in Violation of Ohio Public Policy
Ohio is an employment-at-will state. Mers v. Dispatch Printing Co., 19 Ohio St. 3d 100, 103 (1985). Unless the parties agree otherwise, this doctrine allows either party in the employment relationship to terminate it at any time and for any reason which is not contrary to law. Id. Ohio courts, however, recognize wrongful discharge in violation of public policy as an exception to the employment-at-will doctrine. Greeley v. Miami Valley Maint. Contractors, Inc., 49 Ohio St.3d 228 (1990).
In his Complaint, Plaintiff claims that Defendants violated a public policy of Ohio by retaliating against him for the exercise of his constitutional right to free speech. Complaint ¶ 38. Plaintiff does not address this claim in his Memorandum in Opposition to Defendants' Motion for Summary Judgment.
In their summary judgment motion, Defendants argue that Plaintiff presents no evidence that a public policy was implicated in his termination. The Court agrees.
To prove the tort of wrongful discharge under Ohio law, a plaintiff must demonstrate:
1) That clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element).
2) That dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy (the jeopardy element).
3) The plaintiff's dismissal was motivated by conduct related to the public policy (the causation element).
4) The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).Painter v. Graley, 70 Ohio St. 3d 377, 384 n. 8 (1994) (citation omitted).
Because the Court concludes, for the reasons stated supra, that Plaintiff cannot prevail on his claims under Section 1983 and the Ohio Constitution, Plaintiff cannot satisfy the second and third elements of a wrongful discharge cause of action. In addition, Plaintiff presents no evidence that Defendants lacked an overriding legitimate business justification for dismissing him from their employ. Defendants, on the other hand, set forth uncontroverted evidence showing that Plaintiff was terminated because of his absence without leave from work. (Toler Depo. at 44).
Accordingly, even when viewing the evidence in the light most favorable to Plaintiff, the Court concludes that there is no genuine issue of material fact related to Plaintiff's wrongful discharge claim. Thus, the Court GRANTS Defendants' Motion for Summary Judgment on Plaintiff's claim of wrongful discharge in violation of Ohio public policy.
IV. CONCLUSION
For the reasons set forth above, Defendants' Motion for Summary Judgment is hereby GRANTED. (Doc. # 29).
The Clerk shall enter FINAL JUDGMENT in this case.