Abel v. Auglaize County Highway Dept.

Citation276 F.Supp.2d 724
Decision Date04 August 2003
Docket NumberNo. 3:02 CV 7517.,3:02 CV 7517.
PartiesJack D. ABEL, Plaintiff, v. AUGLAIZE COUNTY HIGHWAY DEPARTMENT, et al., Defendant.
CourtU.S. District Court — Northern District of Ohio

Wendy C. Johnson and William S. McCready, Ritter, Robinson, McCready & James, Toledo, OH, for Defendants.

Francis J. Landry, Wasserman, Bryan, Landry & Honold, Toledo, OH, for Plaintiff.


KATZ, District Judge.

This matter is before the Court on Defendants' motion for summary judgment (Doc. No. 31) as to which Plaintiff has filed a response (Doc. No. 32). Defendants have filed a reply (Doc. No. 40) as to which Plaintiff has filed a sur-reply (Doc. No. 43). Defendants have also filed a sur-reply (Doc. No. 46).

This Court has jurisdiction to decide this matter pursuant to 28 U.S.C. § 1331, 42 U.S.C. § 1983 and 28 U.S.C. § 1367. For the reasons stated below, Defendants' motion for summary judgment is granted.


On March 13, 1989, Plaintiff Jack D. Abel ("Abel") was hired by the Auglaize County (the "County") Highway Department ("Highway Department") by Defendant Douglas Reinhart ("Reinhart"), the Auglaize County Engineer.1 In January 1992, the Highway Department adopted a Personnel Policy and Procedure Manual (the "Manual"), which was distributed to all employees including Plaintiff. Under the Manual's guidelines, Highway Department employees are prohibited from simultaneously receiving workers' compensation benefits and compensation from the County in the form of sick and/or vacation pay (i.e. "double-dipping"). Employees, including Abel, may participate in a "buy-back" program, where employees receiving workers' compensation benefits may turn in these checks and receive credit for accrued sick leave. The Manual also contains a discipline policy.

On August 13, 1997, Abel injured his hip while working on the bridge crew, and began receiving workers' compensation benefits. During 1998 and 1999 Plaintiff availed himself of the "buy-back" program, but admits that there were three instances in which he did not turn in his worker's compensation checks and received sick and/or vacation pay. In late 2000, Reinhart contacted the Ohio Bureau of Workers' Compensation ("BWC") to request a print out of all checks that had been issued to Abel. Reinhart contends that he originally requested the printouts to close that part of Plaintiff's file. He acknowledges, however, that he cross-referenced the BWC printout with Abel's payroll records, which revealed the "double-dipping." Reinhart also maintains that he waited to confront Plaintiff with this information to avoid any confusion due to an already pending appeal Abel had filed with State Personnel Board of Review ("SPBR"). That appeal arose out of an incident where Reinhart removed Plaintiff from a snow plow route, which afforded him overtime, as a disciplinary measure for Abel's refusing to drive a truck purportedly exceeding its weight limit.

Reinhart had also contacted the County prosecutor's office about Abel's "double-dipping," and was advised that the offense constituted a felony as the amount exceeded $500.00. On September 27, 2001, Gary Kuck, the Deputy Auglaize County engineer, hand-delivered a letter from Reinhart notifying Abel of a pre-disciplinary hearing (the "hearing") to be held on October 1, 2001. The letter informed Plaintiff that the hearing was to address his future employment with the Highway Department, and suggested that he bring his copy of the Manual and legal representation. While Abel brought neither, he did ask that a member of the Men's Committee be present. Reinhart refused this request.

Reinhart then presented Plaintiff with the documents, including the BWC printout and County records. Abel was informed that "double-dipping" was considered to be a Class III violation, making him subject to removal even though it was his first offense. Reinhart advised Abel that he had spoken with the County prosecutor, and that due to the amount of money involved, Plaintiff's actions constituted a felony. At that point, Reinhart presented Abel with the options of either proceeding with the disciplinary process or voluntarily resigning. If Plaintiff voluntarily resigned, Reinhart would not pursue the matter. The only document that would be placed in Plaintiff's file would be the letter of voluntary resignation signed that day. Reinhart also imposed two conditions. Abel was neither to file an appeal with the SPBR nor contact the media. Plaintiff was given five minutes to consider his options, during which time he signed the letter of resignation.

Subsequently, however, Abel filed an appeal with the SPBR alleging that his resignation was not voluntary, made under duress, and that he was given only five minutes to decide. Plaintiff also contacted the Wapokneta Daily News, which published an article on the matter on October 22, 2001. On October 23, 2001, Reinhart forwarded a letter to the Auglaize County Sheriff requesting an investigation into Plaintiff's "double-dipping," and held a meeting with Highway Department employees to explain his side of the story. The SPBR ruled against Plaintiff on his appeal. Plaintiff then filed the instant action against the Defendant for deprivation of his federal constitutional rights under the First, Fifth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983. He also asserts several claims pursuant to Ohio law for wrongful discharge in violation of public policy, wrongful discharge for participation in workers' compensation proceedings, intentional infliction of emotional distress, breach of implied contract, fraudulent misrepresentation and defamation. Defendants' move for summary judgment on all claims.

A. Summary Judgment Standard

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The moving party bears the initial responsibility of "informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The movant may meet this burden by demonstrating the absence of evidence supporting one or more essential elements of the non-movant's claim. Id. at 323-25, 106 S.Ct. 2548. Once the movant meets this burden, the opposing party "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (quoting FED.R.CIV.P. 56(e)).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; see also Harris v. General Motors Corp., 201 F.3d 800, 802 (6th Cir.2000). Summary judgment must be entered "against a party who 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, 477 U.S. at 322, 106 S.Ct. at 2552.

"In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences therefrom in a light most favorable to the non-moving party." Williams v. Belknap, 154 F.Supp.2d 1069, 1071 (E.D.Mich.2001) (citing 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987)). However, "`at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter,'" Wiley v. U.S., 20 F.3d 222, 227 (6th Cir.1994) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505); therefore, "[t]he Court is not required or permitted . . . to judge the evidence or make findings of fact." Williams, 154 F.Supp.2d at 1071. The purpose of summary judgment "is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried." Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 130 F.Supp.2d 928, 930 (S.D.Ohio 1999). Ultimately, this Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505; see also Atchley v. RK Co., 224 F.3d 537, 539 (6th Cir.2000).


Under Count I, Abel seeks redress for alleged constitutional violations of the First, Fifth and Fourteenth amendments of the United States Constitution, pursuant to 42 U.S.C. § 1983, which provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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. . . .

42 U.S.C. § 1983.

Plaintiff claims that his termination...

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