Brown v. Woodmere , 2012 Ohio 89 ( 2012 )

[Cite as Brown v. Woodmere, 2012-Ohio-89.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97043
MASAI BROWN
PLAINTIFF-APPELLANT
vs.
VILLAGE OF WOODMERE, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-722343
BEFORE: Rocco, J., Jones, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: January 12, 2012
ATTORNEY FOR APPELLANT
2
Nicholas A. Papa
P.O. Box 391055
Cleveland, Ohio 44139
ATTORNEY FOR APPELLEES
John D. Latchney
Tomino and Latchney
803 E. Washington Street
Suite 200
Medina, Ohio 44256
KENNETH A. ROCCO, J.:
{¶ 1} Plaintiff-appellant Masai Brown appeals from orders the trial court entered
in favor of defendant-appellee the Village of Woodmere on his claims of wrongful
discharge and racial discrimination.
{¶ 2} Brown argues the pleadings did not demonstrate he could prove no set of
facts to support his wrongful discharge claim. He further argues summary judgment on
his racial discrimination claim was unwarranted.
{¶ 3} In light of the record, this court disagrees. Consequently, the trial court’s
orders are affirmed.
{¶ 4} Brown filed this action on March 25, 2010. In his complaint against
Woodmere, he alleged in pertinent part as follows:
3
{¶ 5} Brown was employed as a police officer by Woodmere pursuant to the
village charter, Art. IV, Section 5(B). In January, 2006, he was disciplined for his use of
the “Mayor’s Court computer” for personal matters. At that time, he became aware the
village had an “Electronic Use” ordinance.
{¶ 6} In May 2008, Brown received notice from the village mayor that he “was
being charged” with improper use of the “Sergeant’s computer.” The charges had been
brought due to information provided by another police officer, Sergeant Daniel Cisek.
{¶ 7} Due to Cisek’s installation of “spyware” on the sergeant’s computer, which
the “Chief of Police viewed as a crime,” Cisek had the ability to “access any website
utilized by any [sergeant] using that person’s passwords without that person’s
knowledge.” The “mayor told the police chief to stop [an] investigation against Cisek *
* *,” but the mayor initiated disciplinary proceedings against Brown without first
requesting a police investigation of the charges against him. Brown received notice that
the mayor would hold a “pre-termination” hearing on May 23, 2008. The hearing
proceeded in Brown’s absence.
{¶ 8} Upon concluding the hearing, the mayor decided to terminate Brown from
his position as a police officer for five reasons, viz., 1) violation of the village’s electronic
use policy; 2) unauthorized use of village property or equipment; 3) failure to observe
departmental rules and village policies; 4) conduct unbecoming a police officer; and 5)
dishonesty.
4
{¶ 9} Brown exercised his right to appeal his termination to the village council
pursuant to Woodmere Charter Art. IV, Section 5(C)(1). The village council held a
hearing on his appeal. At this hearing, the village council learned that, although other
officers and village officials also used the village computer for personal matters, the
electronic use policy was enforced only “against Brown.”
{¶ 10} The mayor told the council that the charge of conduct unbecoming a police
officer was based upon the discovery of “sexually explicit material on the Sergeant’s
computer.” The mayor indicated that she had no “proof” Brown had been the person
who placed “sexually explicit photos” on that computer. Council upheld the mayor’s
decision to terminate Brown’s employment.
{¶ 11} Based upon the foregoing facts, Brown presented three causes of action
against Woodmere. In the first count of his complaint, he claimed his termination from
employment was based on racial discrimination. He claimed he was terminated because
the village sought to bolster its defense to a federal lawsuit in which it had been charged
with reverse discrimination.
{¶ 12} In the second count of his complaint, Brown presented a claim for wrongful
discharge in violation of his right to due process and “sound public policies.” He further
asserted the village lacked “legitimate business justifications” for terminating his
employment.
5
{¶ 13} Brown’s third count presented a claim for “common law wrongful
discharge.” He asserted that he was terminated “without cause.”
{¶ 14} The village filed an answer to Brown’s complaint. In pertinent part, the
village made the following admissions: 1) Brown was employed as a police officer by
Woodmere pursuant to the village charter, Art. IV, Section 5(B); 2) in January, 2006, he
was disciplined for his use of the “Mayor’s Court computer” for personal matters; 3) at
that time, he became aware the village had an “Electronic Use” ordinance; 4) in May
2008, Brown received notice from the village mayor that he was being charged with
improper use of the “Sergeant’s computer”; 5) Brown received notice that the mayor
would hold a disciplinary “pre-termination” hearing on May 23, 2008; 6) the hearing
proceeded in Brown’s absence; 7) upon concluding the hearing, the mayor decided to
terminate Brown from his position as a police officer for the five reasons Brown listed in
his complaint; 8) Brown exercised his right to appeal his termination to the village
council pursuant to Woodmere Charter Art. IV, Section 5(C)(1); and, 9) the village
council held a hearing on his appeal before upholding the mayor’s decision.
{¶ 15} The village denied the other pertinent allegations of Brown’s complaint and
asserted several defenses to his claims. The village asserted as follows:
{¶ 16} Brown was not an “at will” employee. The United States Department of
Justice had investigated Brown’s actions, and had concluded Brown “used the Police
6
Department computer to access/display pornographic images, including displays of
[Brown’s] genitalia and nude women.”
{¶ 17} The village further asserted that Brown’s pre-termination hearing
originally had been scheduled for May 19, 2008 but it was continued to May 23, 2008, at
his request and that he had the opportunity to attend and present evidence; the village
council heard his appeal at a full and complete post-termination hearing; and the village
mayor, who was of the same race as Brown, had legitimate non-discriminatory reasons
for terminating Brown’s employment. The village also asserted no common law action
for wrongful discharge existed.
{¶ 18} Soon after filing its answer to Brown’s complaint, the village filed a motion
for judgment on the pleadings as to Brown’s claims for wrongful discharge. Brown
submitted no brief in opposition to the motion.
{¶ 19} On September 16, 2010, the trial court granted the village’s motion. The
trial court noted that only Brown’s claim for racial discrimination remained.
{¶ 20} On May 2, 2011, Woodmere filed a motion for summary judgment on
Brown’s remaining claim. Woodmere argued Brown could not produce evidence to
support the elements of his claim. In support for its argument, Woodmere relied upon
portions of deposition testimony that it filed separately with the trial court.
{¶ 21} Brown failed to respond to Woodmere’s motion. On June 14, 2011, the
trial court granted Woodmere’s motion for summary judgment.
7
{¶ 22} Brown filed a timely appeal from the trial court’s final order. He presents
two assignments of error.
{¶ 23} “I. The trial court’s granting of the defendant, Village of Woodmere’s,
motion for judgment on the pleadings on Count II was in error where the plaintiff could
prove a set of facts to support his claim for wrongful discharge.
{¶ 24} “II. The trial court erred when it granted Woodmere’s motion for summary
judgment on the issue of racial discrimination.”
{¶ 25} Brown argues in his first assignment of error that the pleadings showed
Woodmere violated a “clear public policy” when it terminated his employment, because it
failed to follow its own “rules and procedures” in firing him. Based on this argument, he
contends the trial court improperly granted Woodmere’s motion for judgment on the
pleadings with respect to his claim for wrongful discharge in Count 2 of his complaint.1
This court disagrees.
{¶ 26} Civ.R. 12(C) provides that “[a]fter the pleadings are closed but within such
time as not to delay the trial, any party may move for judgment on the pleadings.” Such
motions are used to resolve questions of law. State ex rel. Midwest Pride IV, Inc. v.
Pontious, 75 Ohio St.3d 565, 570, 1996-Ohio-459, 664 N.E.2d 931. The Ohio Supreme
Court further noted that, pursuant to Civ.R. 12(C), “dismissal is appropriate where a court
1Brown concedes the trial court’s decision on Count 3 of his complaint was
correct.
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(1) construes the material allegations in the complaint, with all reasonable inferences to
be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt,
that the plaintiff could prove no set of facts in support of his claim that would entitle him
to relief.” Id.{¶ 27} Thus, Civ.R. 12(C) requires a determination that no material factual issues
exist and that the movant is entitled to judgment as a matter of law. Id. The appellate
court’s review of decisions on Civ.R. 12(C) motions is de novo. Citicasters Co. v.
Bricker & Eckler, L.L.P., 149 Ohio App.3d 705, 708, 2002-Ohio-5814, 778 N.E.2d 663.
{¶ 28} “The origin of the tort of wrongful discharge in violation of public policy is
the Ohio Supreme Court’s decision in Greeley v. Miami Valley Maintenance Contrs., Inc.
(1990), 49 Ohio St.3d 228, 551 N.E.2d 981. Greeley provides that public policy
warrants an exception to the employment-at-will doctrine when an employee is
discharged or disciplined for a reason prohibited by statute. However, a Greeley cause
of action is available only to at-will employees * * * .” Surry v. Cuy. Cty. College, 149
Ohio App.3d 528, 2002-Ohio-5356, 778 N.E.2d 91, ¶49. (Emphasis added.)
{¶ 29} In this case, the pleadings demonstrated that Brown was not an “at-will
employee.” Brown alleged that, in order to fire a village police officer, Woodmere’s
charter required the mayor to follow a procedure. Harris v. Greater Cleve. Transit Auth.,
Cuyahoga App. No. 89541, 2008-Ohio-676, ¶12.
9
{¶ 30} Brown further alleged that Woodmere complied with the due process
2
procedure set forth in its charter. Woodmere admitted Brown’s allegations.
Consequently, no factual issues existed with respect to his claim of wrongful discharge,
and it failed as a matter of law. Id., ¶13.
{¶ 31} Brown’s first assignment of error, therefore, is overruled.
{¶ 32} Brown argues in his second assignment of error that summary judgment on
his racial discrimination claim was inappropriate. Once again, this court disagrees.
{¶ 33} Appellate review of a trial court’s decision on a motion for summary
judgment also is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,
2 The pertinent provisions of Article IV, Section 5 of the village charter
provide:
“(B) * * * [S]ubject to such confirmation as may be required herein or by the
ordinance of Council, the Mayor shall have the power to appoint and promote any
officer or employee of the Municipality, subject to the approval of Council, except
those required by this Charter to be elected. A vote of five (5) members of Council
shall be necessary to reverse the Mayor’s action.
“(C) The Mayor shall have the right to discipline and terminate the employment of
any officer or employee referred to in Section 5(B) in the following manner:
“(1) With respect to the Police Chief, police officers and patrolmen, to
discharge from employment, suspend, transfer, reduce in rank or otherwise
discipline.
“* * * Said action shall be final unless the person so disciplined requests a
review of the action in writing to the Council President within ten (10) days of the
effective date of the Mayor’s action.
“The request for review shall contain in addition all points on which the
employee relies in support of his or her claim and shall be placed on the agenda for
the meeting of Council next following the expiration of such ten-day period which
may be attended by the person requesting the review. A vote of five (5) members of
Council shall be necessary to reverse the Mayor’s action.
“(D) Except as otherwise specifically provided in subparagraph (C)(1) all actions
taken pursuant to Section 5(C) shall be final and conclusive, and no right of appeal
10
1996-Ohio-336, 671 N.E.2d 241; Zemcik v. La Pine Truck Sales & Equipment (1998),
124 Ohio App.3d 581, 706 N.E.2d 860. The court applies the following test:
{¶ 34} “Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is
no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter
of law, and (3) reasonable minds can come to but one conclusion and that conclusion is
adverse to the nonmoving party, said party being entitled to have the evidence construed
most strongly in his favor.” Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367,
1998-Ohio-389, 696 N.E.2d 201.
{¶ 35} The party moving for summary judgment bears the initial burden of
showing that there is no genuine issue of material fact and that it is entitled to judgment
as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662
N.E.2d 264. If the moving party satisfies that burden, the nonmoving party “may not rest
upon the mere allegations or denials of the party’s pleadings, but the party’s response, by
affidavit or as otherwise provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial.” Civ.R. 56(E). (Emphasis added.)
{¶ 36} To prevail in an employment discrimination case, a plaintiff must prove
discriminatory intent. Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 1996-Ohio-265,
664 N.E.2d 1272. A litigant may use the indirect method of proof. Smith v. Greater
Cleve. Regional Transit Auth. (May 24, 2001), Cuyahoga App. No. 78274, citing Byrnes
shall be available.”
11
v. LCI Communication Holdings Co., 77 Ohio St.3d 125, 1996-Ohio-307, 672 N.E.2d
145.
{¶ 37} With respect to this method of proof, the Ohio Supreme Court has adopted
the analytical framework in cases involving claims of racial or gender discrimination that
was established by the United States Supreme Court in McDonnell Douglas Corp. v.
Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Blake v. Beachwood City
Schools Bd. of Edn., Cuyahoga App. No. 95295, 2011-Ohio-1099, ¶18, citing Plumbers &
Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio
St.2d 192, 421 N.E.2d 128.
{¶ 38} Under that framework, a plaintiff-employee establishes a prima facie case
of discrimination by producing evidence of each of the following elements: 1) he was a
member of the statutorily protected class; 2) he suffered an adverse employment action;
3) he was qualified for the position; and, 4) a comparable, non-protected person was
treated more favorably. Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378,
701 N.E.2d 1023, citing McDonnell Douglas.
{¶ 39} Only after the plaintiff-employee establishes a prima facie case does the
burden shift to the defendant-employer to overcome the presumption inherent in the
prima facie case by propounding a legitimate, nondiscriminatory reason for adverse
actions taken against the employee. Then, if the employer meets this test, the plaintiff
12
must show that the rationale set forth by the employer was only a pretext for unlawful
discrimination.
{¶ 40} In this case, in the face of Woodmere’s properly-supported motion, Brown
produced no evidence at all, let alone evidence that demonstrated he could establish a
prima facie case of racial discrimination. The presumption, therefore, never arose.
{¶ 41} Brown acknowledged in his deposition testimony that during his more than
ten years with the village police department, the mayor, chiefs of police, and village
council members were mainly of the same race as he. In itself, this fact raised an
inference that racial discrimination did not occur. Brown v. CSC Logic, Inc. (5th Cir.
1996), 82 F.3d 651, 658.
{¶ 42} Moreover, the third element of his discrimination claim required proof that
Brown was “qualified” to be a police officer. Brown admitted in his testimony that his
superiors had justifiably disciplined him on many occasions for, inter alia, improper
discharge of his weapon, conduct unbecoming of an officer, dishonesty, and gross neglect
of duty.
{¶ 43} Brown further admitted that he was aware of the village’s electronic use
policy and his use of the sergeant’s computer was in violation of the policy. Brown
additionally acknowledged that, just before his improper computer use was discovered, he
had received a promotion. The mayor testified that she terminated Brown after she
13
viewed the pornographic images that were on the sergeant’s computer; the images
included pictures of Brown’s genitalia.
{¶ 44} Furthermore, with respect to the fourth element required for a successful
race-discrimination claim, Brown admitted he could think of no instances in which a
Caucasian police officer received better treatment than he did. Under the circumstances
presented in this case, summary judgment on Brown’s racial discrimination claim was
entirely appropriate. Mosley v. Cuy. Cty. Bd. of Mental Retardation, Cuyahoga App. No.
96070, 2011-Ohio-3072.
{¶ 45} Brown’s second assignment of error, therefore, also is overruled.
{¶ 46} The trial court’s orders are affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________
KENNETH A. ROCCO, JUDGE
LARRY A. JONES, J., and
EILEEN A. GALLAGHER, J. CONCUR