Boals v. Gray

• Decision Date: 09 November 1983
• Docket Number: No. C 76-250.,C 76-250.
• Citation: 577 F. Supp. 288
• Parties: Charles L. BOALS, Plaintiff, v. Frank H. GRAY, Supt. etc., Defendant.
• Court: U.S. District Court — Northern District of Ohio

577 F. Supp. 288

Charles L. BOALS, Plaintiff, v. Frank H. GRAY, Supt. etc., Defendant.

No. C 76-250.

United States District Court, N.D. Ohio, W.D.

November 9, 1983.

COPYRIGHT MATERIAL OMITTED

James Melle, Columbus, Ohio, for plaintiff.

John C. Stamatakos, Asst. Atty. Gen., Columbus, Ohio, for defendant.

OPINION AND ORDER

DON J. YOUNG, Senior District Judge:

This action was commenced by the plaintiff seeking damages, compensatory and punitive, injunctive, and declaratory relief, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 & 2202. Jurisdiction is predicated upon 28 U.S.C. §§ 1343(3) and (4).

In his Amended Complaint, the plaintiff, a former permanent, nonprobationary civil service employee of the State of Ohio, stated four causes of action. The first alleges that the plaintiff was deprived of his rights of freedom of association and redress of grievances, by reason of being suspended from his employment for union activity. The second alleges that although under the Ohio law civil service employees may only be suspended for cause, he was suspended without any notice or hearing, was given no opportunity to refute the charges against him, and the length of his suspension was increased when he asked to be given due process rights. The third alleges that under the law of Ohio civil service employees have a right to select a collective bargaining agent without interference from the employer, and he was deprived of this right by the defendant. The fourth seeks a declaration that the second paragraph of Ohio Revised Code § 124.34, insofar as it authorizes suspension of civil service employees for five days¹ or less without hearing or appeal is unconstitutional on its face and as applied.

Numerous motions for dismissal and for summary judgment were filed by the parties and ruled on by the Court in memoranda which were filed on March 14, 1977, and July 23, 1980. These are incorporated in this Opinion by reference, but will not be set forth at length herein.

As a result of these motions, the Court refused to accept pendent jurisdiction of the third cause of action in the First Amended Complaint. The Court also abstained from ruling on the fourth cause of action until the plaintiff submitted the issue to the courts of the State of Ohio. The Court did so because it determined that § 124.34 was "susceptible of a construction whereby some procedure is mandated under Ohio law to be followed before suspensions of five days or less may be imposed, despite the fact that on its face, it does not expressly provide or reject such a procedure." Boals v. Gray, No. C 76-250, Memorandum and Order, filed Mar. 14, 1977, at 7.

The plaintiff, and another person, did file such an action, which was carried through the state court system. The common pleas court, faced with cross-motions for summary judgment, found in favor of the defendants. Boals v. Jackson, No. 77CV-04-1556 (C.P. Franklin Co. 1979), aff'd, Boals v. Jackson, No. 79AP-203 (Ct.App. Franklin Co. Jan. 8, 1980). It reasoned that the interpretation of § 124.34 was governed by Anderson v. Minter, 32 Ohio St.2d 207, 291 N.E.2d 457 (1972), a decision which essentially held that a civil service employee suspended for five days or less could not have that suspension directly reviewed in the court of common pleas. The trial court ruled that the only review of suspensions for three days or less provided by state law is review for abuse of discretion pursuant to Ohio Revised Code § 124.56. That court, however, did not address explicitly the central question submitted to it for resolution, i.e., whether or not Ohio law requires some sort of procedure attendant to a suspension for less than five (now three) days.

The Franklin County Court of Appeals affirmed the trial court. Boals v. Jackson, No. 79AP-203 (Ct.App. Franklin Co. Jan. 8, 1980). Nevertheless, the appellate court did seem to recognize the plaintiff's right to a presuspension hearing as a matter of federal, rather than state, law. Relying on the affidavits submitted on behalf of defendants, the Court of Appeals, inter alia, ruled that there was evidence before the trial court to support the conclusion that plaintiffs were given all the process due them under Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). This holding is rather curious inasmuch as the trial court was not asked to and did not address the federal constitutional issue. The Supreme Court of Ohio, on April 4, 1980, refused to certify the record and hear the plaintiff's appeal.

After the state courts had ruled, this Court concluded that it should abstain no longer from determining the issue involved in the fourth cause of action.

This case was assigned for trial, which was held on July 30 and 31, 1980. The plaintiff's original demand for a trial by jury was waived, and the Court heard the matter. Decision was reserved until the case could be argued by written briefs, which have been filed. This Opinion will serve as the Court's findings of fact and conclusions of law. Fed.R.Civ.P. 52(a).

The facts of the case are rather simple, and with minor exceptions, there is no conflict in the testimony. In the following statements, these disputes are resolved without setting them forth in detail. The Court has no doubt that the plaintiff's version of any conflicting elements of the testimony are true. The defendant's conduct, demeanor, and appearance, particularly when viewed in the light of all of the evidence and the circumstances of the case, indicate that he essentially is unworthy of belief. When he disputes what other witnesses say, the Court is impelled not to believe him.

The Court finds that at the time of the events giving rise to this action, the plaintiff had been a civil service employee at the Mansfield, Ohio, Reformatory, for some four years. He had never had any disciplinary charges made against him. The defendant was the Superintendent of the Reformatory. One Captain Hartson was an intermediate superior of the plaintiff. The employment relationships between plaintiff and Hartson were cordial. They also were friendly socially.

Very shortly before the events in question, the plaintiff had joined a Union of employees at the Reformatory. He became active in its support, and encouraged other employees to join it.

On April 15, 1976, when plaintiff left work, he found a parking warning ticket on his car, although he had parked his car in that spot before without any problem.

When he came to work the next morning, he took his position in the deputy's office. Captain Hartson came through the door and said, "Charlie Boals, What's happening?" Plaintiff had the parking ticket in his hand. He said, "Does Gray got you handing these out?" Hartson replied, "Yep, sure does." Plaintiff said, "Why don't you take this and tell him to stick it up his ass." Hartson said, "Okay" and took the ticket.

Very shortly after that, plaintiff was told to go to defendant's office. He entered the office. Defendant was standing behind his desk. Hartson and another official, Charles Rowe, were seated behind plaintiff. Defendant asked him if he had seen the parking ticket before, if he had given it to Hartson, and if he had said defendant should stick it up his ass. Plaintiff responded "yes" to all those questions. Defendant immediately told him he had three days off for insubordination. Plaintiff then said, "Wait a minute. If this is the way it's going to be, I want the union representative, a lawyer. I want somebody here with me." Defendant said, "You have got five days off."

Plaintiff then raised a fuss, seeking to get the suspension increased so he could appeal it, but got nowhere.

The evidence showed that this type of proceeding was the defendant's standard method of handling short-term suspensions. The employee was called into the defendant's office without any notice as to the purpose of the meeting, was denied the right to have any representative present, although one employee who was so disciplined on three occasions had a severe speech impediment and could not make any defense to the charges unless he had someone to speak for him. When on one occasion an employee did have a witness at the "hearing", the defendant refused to speak to the witness.

On another occasion, the defendant followed his standard practice of not permitting the employee to offer any defense. He called an employee in, told her to take a seat, and told her she was removed as an employee before she was allowed to say anything. This action, of course, was appealable, was appealed, and the defendant's order was overturned by the State Personnel Board of Review.

On numerous occasions, employees were given short suspensions for perfectly proper union activities. Neither would the defendant permit union representatives to be present at disciplinary proceedings for employees who had requested the representative to appear with them.

It was stipulated that for the five days that plaintiff was suspended, he would have had gross earnings of $178.40. He would have accrued 2.3 hours of sick leave and 1.54 hours of vacation time at a rate of $4.46 per hour, or $17.13, and the State would have contributed $15.16 to plaintiff's account with the Public Employees' Retirement System.

It also was stipulated that at the time of trial, neither the defendant, the Ohio Department of Rehabilitation and Correction (plaintiff's employer), nor the Ohio Department of Administrative Services had promulgated any rules or regulations setting forth standards or procedures for imposing suspensions of five days (presently three days) or less.²

The Court finds that there are fiscal advantages accruing to the Superintendent of a reformatory from reducing the wages of particular employees by imposing suspensions. Between the time that the defendant became Superintendent in September, 1975, and the date of trial in this case, 140 employees were given short-term suspensions, resulting in a saving on...