Atkinson v. City of Dayton

• Decision Date: 10 November 1998
• Docket Number: No. C-3-97-301.,C-3-97-301.
• Citation: 99 F.Supp.2d 846
• Parties: Todd M. ATKINSON, et al., Plaintiffs, v. CITY OF DAYTON, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

99 F.Supp.2d 846

Todd M. ATKINSON, et al., Plaintiffs, v. CITY OF DAYTON, et al., Defendants.

No. C-3-97-301.

United States District Court, S.D. Ohio, Western Division.

November 10, 1998.

Barry S. Galen, Barry S. Galen Attorney at Law, Dayton, OH, for Todd M. Atkinson, plaintiff.

Neil Frank Freund, Freund Freeze & Arnold, Dayton, OH, for City of Dayton, defendant.

Neil Frank Freund, (See above), for Dayton Civil Serv Bd, defendant.

ENTRY SUSTAINING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. # 19); NOTICE OF INTENT TO ENTER SUMMARY JUDGMENT IN FAVOR OF DEFENDANT SANDRA HUGGINS IN HER INDIVIDUAL CAPACITY; THIS ENTRY IS NOT A FINAL, APPEALABLE ORDER.

RICE, Chief Judge.

This matter comes before the Court upon the Defendants' Motion for Summary Judgment (Doc. # 19) on the Plaintiffs' Complaint (Doc. # 1), a complaint which alleges violations of 42 U.S.C. §§ 1983, 1988, and 1441; 5 U.S.C. § 3101; 2 U.S.C. § 601; and the Fifth and Fourteenth Amendments to the United States Constitution. The Complaint also includes unspecified state-law claims.

The five Plaintiffs are former police officer recruit candidates. They filed their Complaint on July 3, 1997, after being enjoined on May 18, 1997, from participating in the Dayton police academy training class, which was to begin the following day. The injunction, issued by a state common pleas court, stemmed from a disagreement between the Dayton Fraternal Order of Police ("FOP") and the City of Dayton ("City") over the City's obligation to comply with a 1995 drug use and drug testing policy it had negotiated with the FOP.

The terms of the 1995 agreement prevented the City from hiring any applicant for employment as a sworn police officer if the applicant ever had used, abused, or trafficked in any "controlled substance" or "dangerous drug" as defined by Ohio law. (Arbitrator's Opinion and Award, attached to Doc. # 19, as Exh. C). The agreement included an exception, however, if an applicant had used only marijuana, and the use had ended two or more years prior to the application for employment as a police officer. (Id.) Additionally, the agreement required all applicants to undergo a background investigation, a polygraph test, and a drug test prior to being approved for employment. (Id.)

The FOP filed two grievances on November 14, 1995, alleging that the City had failed to follow this negotiated 1995 drug policy when, on November 1, 1995, it issued its "General Order 1.02-2," without including in the order the prohibition against hiring any police officer applicant who ever had used, abused, or trafficked in a controlled substance or dangerous drug, other than marijuana use ending more than two years before the individual's application for employment. (Id.). Thereafter, on July 1, 1996, the FOP sought to enjoin commencement of a July 8, 1996, police academy class until the City adhered to the 1995 drug policy. The FOP sought to enjoin the class because Plaintiffs Todd M. Atkinson and Mark Shively allegedly were ineligible under the negotiated 1995 drug use policy because they had used drugs other than marijuana. (Fraternal Order of Police v. City of Dayton, Montgomery Cty. C.P. No. 96-2758 (July 13, 1996), attached to Complaint, Doc. # 1, as Exh. B).¹

The Common Pleas Court subsequently granted the injunction on July 13, 1996, and enjoined the City from beginning its police academy class until the FOP's grievance was resolved through arbitration. (Doc. # 1, at Exh. B). The state court later modified its injunction and allowed the academy class to begin, although without Atkinson and Shively. (Id. at Exh. C). Thereafter, on December 10, 1996, an arbitrator ruled that the City and the FOP had agreed to the drug screening requirements set forth above. (Arbitrator's Opinion and Award, Doc. # 19 at Exh. C). Consequently, the arbitrator found the 1995 policy "controlling" and, as a result, reasoned that the "Director and the Chief of Police are required not to recommend any applicant for police recruit to the Civil Service Board for employment, if an investigation of their background reveals use, purchase, sale, or transportation of illegal drugs or if the applicant fails the drug test which is now permitted as part of the turpitude evaluation of each applicant." (Id.).

On January 30, 1997, however, the Dayton Civil Service Board issued a policy disqualifying, as police recruit candidates, applicants who had participated in any illegal drug activity within the five years prior to their background investigation. This language conflicted with the 1995 agreement between the City and the FOP. As noted above, that agreement disqualified any applicant who had ever used an illegal drug other than marijuana. Under the terms of the 1995 negotiated agreement, the Plaintiffs did not qualify for academy positions, whereas under the more lenient Civil Service Board policy, they did qualify. Consequently, the FOP filed another grievance in March, 1997, seeking enforcement of the arbitrator's ruling. (Fraternal Order of Police v. City of Dayton, Montgomery Cty. C.P. Nos. 96-2758, 97-5725, and 97-5727 (May 18, 1997), attached to Doc. # 1 as Exh. N, O). The FOP also sought another injunction to enjoin Atkinson, Shively, and the three other Plaintiffs from participating in the police academy training class scheduled to begin on May 19, 1997. (Id.). The Montgomery County Common Pleas Court granted the FOP's request on May 18, 1997, and enjoined the five Plaintiffs from participating in any academy class. (Id.). In so doing, the court determined that the Plaintiffs had knowingly and illegally used a "dangerous drug" or "controlled substance," other than marijuana, thereby rendering them ineligible for employment under the terms of the City's 1995 agreement with the FOP. (Id.).

The Plaintiffs then filed their Complaint herein on July 3, 1997, asserting a variety of claims against the City, the Dayton Civil Service Board, Civil Service Board Secretary and Chief Examiner Sandra Huggins, in her individual and official capacity, and Ronald Lowe, in his official capacity as the Dayton Chief of Police. (Doc. # 1). In response, the Defendants have moved for summary judgment on the Plaintiff's claims. (Doc. # 19). Jurisdiction is proper under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1343(a)(3) (providing jurisdiction for actions brought under 42 U.S.C. § 1983), and 28 U.S.C. § 1367 (supplemental jurisdiction over state law claims).

I. Summary Judgment Standard

The Court first will set forth the parties' relative burdens once a motion for summary judgment is made. 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 Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Of course, [the moving party] always 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.

Id. at 323, 106 S.Ct. 2548. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the non-moving party, do not raise a genuine issue of material fact for trial[,]" quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 [6th Cir.1987]). The burden then shifts to the non-moving party who "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, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a motion for judgment as a matter of law under Fed.R.Civ.P. 50. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

Once the burden of production has shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply 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, 89 L.Ed.2d 538 (1986). See also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff"). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment "shall be rendered forthwith if 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). Summary judgment shall be denied "[i]f there are ... `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th...