Bijan Bahramian v. Sylvester Murray
| Decision Date | 26 October 1983 |
| Docket Number | C-820870,TRIAL NO. A-8010515,83-LW-2667 |
| Parties | BIJAN BAHRAMIAN, Plaintiff-Appellant, v. SYLVESTER MURRAY, City Manager of the City of Cincinnati, and the CITY OF CINCINNATI, Defendants-Appellees. APPEAL |
| Court | Ohio Court of Appeals |
Civil Appeal from Court of Common Pleas.
Mr James C. Paradise, 195 Wedgewood Avenue, Cincinnati, Ohio 45217, for Plaintiff-Appellant.
Messrs Richard A. Castellini and Ely M.T. Ryder, Room 214, City Hall, Cincinnati, Ohio 45202, for Defendants-Appellees.
The relentless march of this case through the judicial systems of two jurisdictions had its beginnings in an incident some seven years ago, when the employment of Mr. Bahramian as a city planner with the City Planning Commission of the City of Cincinnati was terminated for insubordination by the then director of that agency. An appeal to the Civil Service Commission was unsuccessful, and Mr. Bahramian, availing himself of his rights under R.C. 2506.01 et seq., appealed that order to the Hamilton County Common Pleas Court. He also filed a separate mandamus action challenging the authority of the director to discharge him, seeking back pay, fees and costs. The matter having reached this Court for the first time, we held that the discharge was unlawful since, under the Charter of the City of Cincinnati, that authority is reserved to its city manager. Our remand of the matter sent the cause back to the city's administration, with instructions to follow the procedures required by the Charter.®1¯ State ex rel. Bahramian v. Stevens, No. C-77404 (1st Dist. Dec. 6, 1978).
Footnote 1 . In view of the persistent effort of the appellant to convince this Court to make the factual determination that he was illegally discharged and to fix his damages, it is instructive to note the wording of this first of several remands to the Common Pleas Court:
On December 13, 1978, the city manager, presumably acting in accordance with his understanding of our remand, discharged Mr. Bahramian retroactively to June 2, 1976. Unfortunately, while complying with the letter of our remand, the city manager - or those who advised him - neglected to comply with another requirement of law, viz., Rule XV, Section 4 of the City of Cincinnati Civil Service Commission Rules, requiring the appointing authority to hold a hearing at the agency level to permit the employee to present matters in his defense. No such hearing was ever held, a defect which generated another series of appeals, eventuating in the next decision by this Court in the matter. In that decision, we reversed decisions by the Civil Service Commission and the common pleas court, which had affirmed the discharge. Bahramian v. Murray No. C-810695 (1st Dist. June 2, 1982).
In the light of the subsequent history of this case, it is of some importance to examine carefully precisely what this Court said in its June 2, 1982 decision, which we may call Bahramian II. After granting the first two assignments of error on the basis of the failure of the City to afford the appellant the mandatory hearing required by the Commission rules, we then addressed the appellant's final assignment of error, which again requested this Court to make the factual determination that he had not, in fact, been guilty of insubordination. We declined to assume an authority we, as an appellate court, do not possess, noting:
We are not prescient. We cannot anticipate what evidence concerning plaintiff's alleged insubordination will be adduced when he is afforded his initial agency hearing. The assignment of error is overruled (emphasis added).
T.d. 2 at 8. We therefore remanded the cause for further proceedings not inconsistent with the opinion, including, if appropriate, a determination of damages.®2¯
Footnote 2 . This decision was not sought to be appealed, and is, of course, final and binding on the parties. The point is of some importance in view of the appellant's current and repeated contention that the Bahramian II Court erred in not converting itself into a fact-finding agency to make the merit determination never effectively performed by those entities charged by law with the duty to do so.
When this remand was received by the common pleas court, it appears to have generated perplexity. Notwithstanding the language from Bahramian II emphasized in the above quotation (or, for that matter, the history of the remand following Bahramian I), the common pleas court declined, or was persuaded to reject, what we had thought was a course of action obvious from the tenor of the remand: viz., a further remand by the common pleas court to the Civil Service Commission with instructions to afford the appellant the agency hearing required by its rules. Since the common pleas court, with the exceptions noted in R.C. 2506.03, functions in this instance precisely as this Court functions, i.e., as an appellant court limited to questions of law based on a record made by the fact finding agency, See R.C. 2506.04, it seemed unnecessary to spell out that the common pleas court suffered under the same inhibition which caused us to decline to rule on factual matters as appellant wished us to in his third assignment of error. Our estimate of the clarity of our remand appears to have been ill-founded.
Meanwhile, a further complication had injected itself into the picture with the failure of two related but separate actions brought by Mr. Bahramian to test the legality of his discharge. In one such action, plaintiff filed suit in the United States District Court for the Southern District of Ohio, seeking relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, and alleging that he was discharged not for insubordination but in retaliation for attempting to end racially discriminatory practices by his superiors. A similar separate charge was filed with the Ohio Civil Rights Commission. Both actions proceeded to hearings, and both terminated adversely to Mr. Bahramian. In the former, judgment was entered dismissing the complaint on June 25, 1981, the dispositive conclusion of law reciting as follows:
C. An employee who fails to establish by a preponderance of the evidence that his discharge was retaliatory for his protests of alleged discrimination against black employees, has failed to prove a cause of action under 42 U.S.C. 2000(e)-3(a) and his complaint should be dismissed.
T.d. 5, Exhibit B. A similar result was reached in an order entered by the Ohio Civil Rights Commission on January 27, 1982, the Commission finding that:
2. The evidence was insufficient to meet the burden of proving unlawful discriminatory discharge in violation of Section 4112.02, Ohio Revised Code.
T.d. 5, Exhibit F. We are told that the federal action has been appealed to the Court of Appeals for the Sixth Circuit, where it awaits review, and that the state action was appealed to the Franklin County Common Pleas Court.®3¯
Footnote 3 . In his brief, appellant states that "an appeal for judicial review of the Ohio Civil Rights Commission order is pending in the Franklin County Court of Common Pleas." Appellant's brief at 5. However, appellees, in their brief, state that both appeals from the order of the civil rights commission were unsuccessful, and ultimately dismissed. Appellees' brief at 6. In any event, the procedural posture of the appeal does not interfere with our disposition of the instant matter.
Returning now to the instant action, the proceedings before the common pleas court under our remand of Bahramian II became a forum for the discussion of the effect of these two civil rights proceedings on the instant cause. The appellees argued there, as here, that they concluded the issue against the appellant on grounds of res judicata, the appellant insisting to the contrary. The trial court agreed with the appellees, dismissing the complaint, noting in its final judgment entry...
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