Campolieti v. Cleveland

• Decision Date: 01 October 2009
• Docket Number: No. 92238.,92238.
• Citation: 921 N.E.2d 286,184 Ohio App.3d 419,2009 Ohio 5224
• Parties: CAMPOLIETI, Appellant and Cross-Appellee, v. CITY OF CLEVELAND et al., Appellees and Cross-Appellants.
• Court: Ohio Court of Appeals

921 N.E.2d 286

184 Ohio App.3d 419

2009-Ohio-5224

CAMPOLIETI, Appellant and Cross-Appellee, v. CITY OF CLEVELAND et al., Appellees and Cross-Appellants.

No. 92238.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided October 1, 2009.

Caryn Groedel & Associates Co., L.P.A., Chastity L. Christy, Caryn M. Groedel, and Jennifer L. Speck, Cleveland, for appellant and cross-appellee.

Robert J. Triozzi, Cleveland Director of Law, L. Stewart Hastings and Theodora M. Monegan, Chief Assistant Directors of Law, and William M. Menzalora, Assistant Director of Law, for appellees and cross-appellants.

FRANK D. CELEBREZZE Jr., Judge.

{¶ 1} Appellant, John Campolieti, a firefighter for the Cleveland Fire Department ("CFD"), appeals the lower court's grant of summary judgment in favor of appellees, the city of Cleveland and Chief of Fire Paul A. Stubbs, disposing of appellant's age-discrimination and promissory-estoppel claims. After a thorough review of the record and for the following reasons, we affirm in part and reverse in part.

{¶ 2} Appellant, age 67, has been a firefighter with CFD for more than 40 years. He was currently serving as a lieutenant in Engine Company Four. On May 19, 2006, when appellant was 64 years old, CFD posted a notice of openings for several positions within CFD, including a lieutenant position in the Fire Investigation Unit ("FIU"). The notice stated that "where all such qualifications are relatively equal, employees shall be selected on the basis of seniority." FIU is staffed with firefighters who must become sworn police officers in order to investigate possible fire-related crimes. Appellant submitted a transfer request from Engine Company Four into FIU along with the other requisite paperwork to be considered for the position.

{¶ 3} The selection process and other terms of employment were governed by the collective-bargaining agreement ("CBA") in force at the time. The criteria for the selection of applicants to fill this position, or any other position that requires specialized training, were based on any specialized skills possessed by the applicant specified in their resume. Where all qualifications were relatively equal, selection was based on seniority. As set forth in Article VI of the CBA, the applicant must also be able to use the specialized training received for the new position for at least five years. For appellant, this position would have been a lateral transfer under the CBA, and appellant would not have been entitled to any increase in benefits or pay. There may have been an opportunity for more overtime pay and increased prestige in the eyes of some firefighters.

{¶ 4} Appellant had the highest seniority and was at least as equally qualified as the applicant selected. On June 9, 2006, Lieutenant Christopher Posante, then age 42, was granted transfer into FIU rather than appellant. When questioned by appellant as to why his transfer was not granted, Chief Stubbs cited as his reason that he did not feel appellant could satisfy the requirement in Article VI of the CBA of being able to use the specialized training for five years. This was based on a mandatory retirement requirement for police and firefighters who reached age 65, as specified in Cleveland City Codified Ordinance 135.07. Officers and firefighters 65 and older could request an extension of employment. Since Chief Stubbs took office in 2004, no firefighter seeking such an extension has been denied. However, in spring 2006, Councilman Zachary Reed, the chair of Cleveland City Council's Safety Committee, informed Chief Stubbs that no more employment extensions would be granted because "there were younger people out there who needed jobs." An employment extension could be granted only if the chief of fire, the city council, and the public safety director approved.

{¶ 5} On April 16, 2007, foregoing the grievance procedures set forth in the CBA and administrative remedies available by statute, appellant filed a complaint in the common pleas court, alleging that he was denied transfer based on age discrimination, a violation of R.C. 4112.14 and 4112.99; a claim of promissory estoppel relying on the language of the posted notice of available positions; and a wrongful-employment action in violation of public policy. The complaint was later amended to reflect only the first two claims.

{¶ 6} After several procedural motions and issues, the parties filed for summary judgment on July 22, 2008. Appellant's motion for summary judgment was denied on September 15, 2008, and appellees' motion for summary judgment was granted on September 19, 2008, with the trial court finding that the city and Chief Stubbs had demonstrated a legitimate, nondiscriminatory reason for their actions and that appellant had failed to show that appellees' reason was mere pretext.

{¶ 7} Appellant appeals this decision and requests that the case be remanded for trial on the following grounds:

{¶ 8} "1. The trial court erred in granting summary judgment in favor of defendants-appellees as to plaintiff-appellant's age discrimination claim."

{¶ 9} "2. The trial court erred in granting summary judgment in favor of defendants-appellees as to plaintiff-appellant's promissory estoppel claim." Law and Analysis

Age Discrimination

{¶ 10} "Civ.R. 56(C) specifically provides that before summary judgment may be granted, it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 364 N.E.2d 267.

{¶ 11} It is well established that the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 604 N.E.2d 138.

{¶ 12} In Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264, the Ohio Supreme Court modified and/or clarified the summary-judgment standard as applied in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095. Under Dresher, "the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or material element of the nonmoving party's claim." (Emphasis sic.) Id. at 296, 662 N.E.2d 264. The nonmoving party has a reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Id. at 293, 662 N.E.2d 264. The nonmoving party must set forth "specific facts" by the means listed in Civ.R. 56(C) showing that a genuine issue for trial exists. Id.

{¶ 13} This court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Cty. Commrs. (1993), 87 Ohio App.3d 704, 622 N.E.2d 1153. An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). "The reviewing court evaluates the record * * * in a light most favorable to the nonmoving party * * *. [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50, 593 N.E.2d 24; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741, 607 N.E.2d 1140.

{¶ 14} Appellant's claim of age discrimination is rooted in R.C. 4112 et seq., which is the embodiment of Ohio's staunch resolve to remedy instances of discrimination based on "race, color, religion, sex, national origin, handicap, age, or ancestry of any person." R.C. 4112.02(A). Because this statutory scheme is similar to federal discrimination law, "[f]ederal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42, U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112." Little Forest Med. Ctr. of Akron v. Ohio Civ. Rights Comm. (1991), 61 Ohio St.3d 607, 609, 575 N.E.2d 1164.

{¶ 15} Under R.C. 4112.02(A), which sets forth unlawful employer discriminatory practices, it is "an unlawful, discriminatory practice for any employer, because of * * * age * * * to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions or privileges of employment, or any matter directly or indirectly related to employment."

{¶ 16} In Byrnes v. LCI Communication Holdings Co. (1996), 77 Ohio St.3d 125, 128-129, 672 N.E.2d 145, the Ohio Supreme Court stated that a plaintiff-employee may prove a claim of employer discrimination pursuant to R.C. 4112.02 via two separate methods. "Discriminatory intent may be established indirectly by the four[-]part analysis set forth in Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146, 6 OBR 202, 451 N.E.2d 807, adopted from the standards established in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. The Barker analysis requires that the plaintiff-employee demonstrate `(1) that he was a member of the statutorily-protected class, (2) that he was discharged, (3) that he was qualified for the position, and (4) that he was replaced by or that his discharge permitted the retention of a person not belonging to the protected class.'" Id., paragraph one of the syllabus. The fourth prong of this analysis has been broadened, allowing a plaintiff to show a substantially younger individual rather than an individual not belonging to the protected class. Coryell v....