York v. City of Cincinnati , 194 Ohio App. 3d 517 ( 2011 )

[Cite as York v. Cincinnati, 194 Ohio App.3d 517, 2011-Ohio-3921.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
YORK et al., : APPEAL NO. C-100614
TRIAL NO. A-0606289
Appellees, :
v. : D E C I S I O N.
CITY OF CINCINNATI, :
Appellant.
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 10, 2011
William M. Gustavson, for appellees.
John Curp, City Solicitor, and Augustine Giglio, Assistant City Solicitor, for appellant.
Hildebrandt, Judge.
{¶ 1} Defendant-appellant, city of Cincinnati, appeals the summary judgment
entered by the Hamilton County Court of Common Pleas ordering the city to promote
plaintiffs-appellees, Kevin York and Joseph Richardson, to the rank of police lieutenant.
Police Promotions: Double-Fills and Over-Fills
{¶ 2} Promotions in the city’s police division are controlled by statute and by a
consent decree that the city approved in 1987 to settle allegations of employment
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discrimination.1 Under the consent decree, the consecutive promotion of four white males
in any rank requires the promotion of a minority, irrespective of whether a vacancy exists
in that rank.2 The promotion of a minority may thus result in the increase in a certain rank
above the authorized complement.3 Such a minority promotion in a given rank is known
as a “double-fill.” A double-fill is not absorbed into the regular complement of the rank
until after the expiration of the applicable eligibility list.4
{¶ 3} A similar procedure applies to those who are added to a rank through court
order or through the settlement of a lawsuit with the city. Such additions are referred to as
“over-fills” and are also not absorbed into the rank’s regular complement until the
expiration of the eligibility list.
Eligibility List 04-19 for Police Lieutenant
{¶ 4} This case concerns the vacancies that existed in the rank of lieutenant
between November 2004 and August 2006.
{¶ 5} In 2004, the city approved eligibility list 04-19, which became effective June
30, 2004, and which was ultimately set to expire on August 1, 2006. York was ranked
12th on list 04-19, and Richardson was 13th.
{¶ 6} By November 2004, three vacancies had occurred in the rank of lieutenant
and those vacancies had been filled by three white males from the top of the eligibility list.
In March 2005, a fourth vacancy was filled by David Fink, a white male who was next on
the list.
{¶ 7} The promotion of a fourth consecutive white male triggered the provisions of
the consent decree requiring the promotion of a minority. Martin Mack, an African-
American man who was fifth on the eligibility list, was promoted as a double-fill on
1 See State ex rel. Fink v. Cincinnati, 186 Ohio App.3d 484, 2010-Ohio-449, 928 N.E.2d 1152, ¶ 13.
2 Id.3 Id.4 Id.2
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March 20, 2005. The Mack promotion raised the number of lieutenants to 44: 43 in the
regular complement and one double-fill.
{¶ 8} On July 21, 2005, Lieutenant Howard Rahtz was promoted to the rank of
captain, creating a vacancy in the lieutenant rank. Two days later, Lieutenant Sandra
Sizemore retired, creating a second vacancy in the lieutenant rank.
{¶ 9} Then, on August 19, 2005, Michael Fern was promoted to lieutenant after he
had settled his lawsuit with the city.5 It is undisputed that Fern ranked below York and
Richardson on list 04-19.
{¶ 10} On November 23, 2005, three white female officers—Deborah Bauer, Lisa
Davis, and Christine Briede—were promoted to lieutenant as a result of a settlement in
another lawsuit. Bauer, Davis, and Briede were sixth through eighth, respectively, on list
04-19.
{¶ 11} Also on November 23, 2005, sergeants Emmett Gladden and Brett Isaac
were promoted to lieutenant as court-ordered over-fills. Gladden and Isaac were 10th and
15th on the eligibility list, respectively.
{¶ 12} Two more retirements occurred in 2006. When Lieutenant Joe Hall retired
on April 18, 2006, Timothy Brown was promoted from the ninth position on the eligibility
list. Lieutenant Robert Ruebusch then announced that he would retire effective July 29,
2006. Shortly after list 04-19 had expired, the city promoted John Rees, who was number
ten on the eligibility list. After the Rees promotion, numbers one through 11 on the list
had been promoted to lieutenant.
The Claims of York and Richardson
{¶ 13} Thus, upon the expiration of the list, York and Richardson were next in line
to be promoted. The only question was whether any vacancies had remained.
5For a complete discussion of the issues surrounding Fern’s dispute with the city, see State ex rel.
Fern v. Cincinnati, 161 Ohio App.3d 804, 2005-Ohio-3168, 832 N.E.2d 106.
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{¶ 14} The answer to that question hinged on the proper characterization of the
Mack and Fern promotions. At some point after Mack’s promotion to lieutenant, the city
determined that Fink had been eligible for promotion to lieutenant from an earlier list. As
a result of that change, the city purported to retroactively characterize Mack’s promotion
to lieutenant as an “in-line” promotion instead of a double-fill, because Mack had been
next in line on the eligibility list. And despite Fern’s having been promoted following the
settlement of his lawsuit, the city apparently maintained that he occupied a regular slot in
the complement.
{¶ 15} In any event, the city did not make any further promotions after those of
Brown and Rees. York and Richardson filed a mandamus action, asserting that two
vacancies remained in the rank of lieutenant when eligibility list 04-19 expired. They
filed a motion for summary judgment, which the trial court granted.
The Trial Court’s Treatment of the Mack and Fern Promotions
{¶ 16} In its first assignment of error, the city contends that the trial court erred in
entering summary judgment in favor of York and Richardson. The city argues that there
were no vacancies in existence at the time list 04-19 expired, and therefore, it had no duty
to promote York and Richardson to the rank of lieutenant.
{¶ 17} Under Civ.R. 56(C), a motion for summary judgment may be granted only
when no genuine issue of material fact remains to be litigated, the moving party is entitled
to judgment as a matter of law, and it appears from the evidence that reasonable minds can
come to but one conclusion, and with the evidence construed most strongly in favor of the
nonmoving party, that conclusion is adverse to that party.6 This court reviews a ruling on
summary judgment de novo.7
6 See State ex rel. Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589, 639 N.E.2d 1189.
7Jorg v. Cincinnati Black United Front, 153 Ohio App.3d 258, 2003-Ohio-3668, 792 N.E.2d 781,
¶ 6.
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{¶ 18} To establish entitlement to a writ of mandamus, the relator must show that
he has a clear legal right to the requested relief, that the respondent has a clear legal duty
to perform the requested act, and that the relator has no plain and adequate remedy at law.8
{¶ 19} R.C. 124.44, governing promotions in a municipal police department,
provides that “[i]f there is [an eligibility] list, the commission shall, when there is a
vacancy, immediately certify the name of the person on the list having the highest rating,
and the appointing authority shall appoint that person within thirty days from the date of
the certification.”
{¶ 20} The essence of the city’s argument is that the two vacancies claimed by
York and Richardson had already been filled by Mack and Fern.
{¶ 21} We first address the argument with respect to Mack. The city contends that
because it had retroactively promoted Fink from an earlier eligibility list, the Mack
promotion was properly characterized as an “in-line” promotion rather than a double-fill.
Accordingly, the city argues, Mack had filled one of the vacancies in the regular
complement.
{¶ 22} We find no merit in this argument. Although the city determined that Fink
had been entitled to a promotion from an earlier date, the fact remained that he was the
fourth consecutive white male to enter the rank of lieutenant and that Mack had been
immediately promoted as a double-fill.
{¶ 23} The city has offered no authority for the proposition that it could
retroactively alter the character of Mack’s promotion to consider it an “in-line” promotion
when at the time he was promoted in March 2005, there were no vacancies in the rank. As
the trial court properly noted, the re-characterization of Mack’s promotion would have
required the city to retroactively demote him to the rank of sergeant and then to promote
him to lieutenant when the next vacancy arose in July 2005. Otherwise, there would have
been an unauthorized expansion of the lieutenant complement. Because Mack’s service
8 State ex rel. Bardo v. Lyndhurst (1987), 37 Ohio St.3d 106, 107, 524 N.E.2d 447.
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records did not reflect such a demotion, he remained in a double-fill position and did not
occupy either of the positions sought by York and Richardson.
{¶ 24} The city’s argument with respect to Fern also lacks merit. The city
apparently maintains, without explanation, that the Fern promotion filled one of the
regular vacancies in the lieutenant complement. But this contention is untenable in light
of the deposition testimony of Lieutenant Alan March of the police personnel section.
March testified that Fern had been promoted to the rank of lieutenant from a previous
eligibility list as the result of a settlement of his lawsuit. And it was undisputed that Fern
was ranked below York and Richardson on list 04-19, the only list open at the time the
promotion was made. Accordingly, Fern was in the position of an over-fill and did not fill
either of the vacancies in the regular complement claimed by York and Richardson.
{¶ 25} In sum, the trial court correctly held that there remained two vacancies in
the rank of lieutenant and that the right to those vacancies had vested in York and
Richardson. Therefore, we overrule the first assignment of error.
Mootness
{¶ 26} In its second assignment of error, the city argues that the trial court erred in
granting the writ of mandamus because the writ had issued after the expiration of the
eligibility list. The city contends that the expiration of the list had rendered the requested
relief moot.
{¶ 27} This argument is not well taken. Under R.C. 124.44, the right to a
promotion vests in the highest ranked person from the eligibility list when a vacancy
occurs.9 In this case, York and Richardson established that vacancies had occurred while
list 04-19 remained in effect and that they had been next in line for promotion when those
vacancies had arisen. Thus, the subsequent expiration of the eligibility list did not render
their claims moot, and we overrule the second assignment of error.
Conclusion
9 See Sentinel Police Assn. v. Cincinnati (Apr. 17, 1996), 1st Dist. No. C-940610.
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{¶ 28} The judgment of the trial court is affirmed.
Judgment affirmed.
DINKELACKER, P.J., and CUNNINGHAM, J., concur.
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