Christophel v. Kukulinsky
| Decision Date | 03 August 1995 |
| Docket Number | No. 94-3831,94-3831 |
| Citation | 61 F.3d 479 |
| Parties | 102 Ed. Law Rep. 58 Wilma CHRISTOPHEL, Plaintiff-Appellee, Rita Williams, Plaintiff, v. Nancy KUKULINSKY, Joseph Steger, and Kathleen Gubser, Defendants-Appellants, University of Cincinnati, Academic Pathology Associates, Inc., and Toni Gregory, Defendants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Alphonse A. Gerhardstein (argued and briefed), Laufman, Rauh & Gerhardstein, Cincinnati, OH, for Wilma Christophel and Rita Williams.
Frank H. Stewart (briefed), Gregory P. Rogers (argued and briefed), Taft, Stettinius & Hollister, Cincinnati, OH, for Nancy Kukulinsky, Kathleen Gubser and Joseph A. Steger.
Before: MARTIN and SILER, Circuit Judges; and JOINER, District Judge. *
In this procedural due process action, plaintiff Wilma Christophel claims that the University of Cincinnati deprived her of the right to be a classified civil servant, and, consequently, the rights which would have accompanied that status when her employment with the University was terminated. Defendants Nancy Kukulinsky, Joseph Steger and Kathleen Gubser, all University employees allegedly involved in personnel actions affecting Christophel, appeal the denial of their motion for qualified immunity. We conclude that these defendants did not deprive Christophel of her right to procedural due process, and therefore reverse.
The University of Cincinnati was a city-operated institution until 1977, when it became a state institution. As such, it was required to conform to the state's civil service system, as set forth in Ohio Rev.Code Ann. Secs. 124.01-124.99 (Anderson 1994). The University conducted a review of its job titles to determine whether they should be placed in the state's classified or unclassified civil service. The Ohio Department of Administrative Services (DAS) reviewed and approved the University's proposed civil service classifications.
There are critical differences between classified and unclassified civil servants. Applicants for classified positions are employed or appointed from eligibility lists, and are required to demonstrate their fitness for employment through competitive examination or providing evidence that they satisfy specific requirements. Classified civil servants have tenure during "good behavior and efficient service," can be discharged only for cause as set forth in Ohio Rev.Code Ann. Sec. 124.34, and have displacement or "bumping" rights in the event of job abolishment. See generally Deryck v. Akron City Sch. Dist., 633 F.Supp. 1180, 1182 (N.D.Ohio 1986), aff'd, 820 F.2d 405 (6th Cir.1987) (Table). A classified civil servant has the right to appeal a layoff to the State Personnel Board of Review (SPBR), and must do so no later than ten days after receipt of the notice of layoff. Ohio Rev.Code Sec. 124.328. Ohio's civil service statute creates a property right in continued employment for classified civil servants, and a classified civil servant may not be deprived of this right without due process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985).
Unclassified civil servants, on the other hand, are not required to satisfy the merit and fitness requirements applicable to the classified service. Such employees serve at the pleasure of the University's Board of Trustees, and have no displacement or bumping rights in the event of job abolishment. Concomitantly, unclassified civil servants are not themselves subject to bumping or displacement when other employees are laid off, and generally are paid more than classified civil servants. Unclassified civil servants have no right to appeal adverse job actions to the SPBR. Nonetheless, such an employee may appeal a discharge or layoff if the appeal is coupled with a claim that the employee was improperly designated as unclassified. The SPBR has jurisdiction over appeals from removals of public employees " 'if it determines that such employees are in the classified service, regardless of how they have been designated by their appointing authorities.' " Weiss v. Industrial Comm'n of Ohio, 65 Ohio St.3d 470, 605 N.E.2d 37, 40 (1992) (quoting Rarick v. Geauga Bd. of County Comm'rs., 63 Ohio St.2d 34, 406 N.E.2d 1101, 1103 (1980)). Finally, unclassified civil servants have no property right to continued employment. Vodila v. Clelland, 836 F.2d 231, 232 (6th Cir.1987).
Wilma Christophel was hired in 1972 as an accounting technician I, a classified position under the city's civil service system, and was promoted in 1975 to accounting technician II, an unclassified position. Christophel transferred to the Department of Pathology and Medicine in 1977, and was promoted to senior administrative assistant in that department in 1979. Christophel was responsible for all of the fiscal activities and functions of the business office, and her responsibilities continued to increase from 1979 forward. The title "senior administrative assistant" had been placed in the unclassified service in 1977, and the title remained in that category at all times relevant to this case. Christophel knew that her position was unclassified, and understood the differences between classified and unclassified service. Christophel simultaneously was employed by Academic Pathology Associates, Inc. (APA), the clinical "practice plan" for the pathology department and performed the same job functions for both APA and the pathology department.
In 1990, an independent auditor hired by APA reported numerous administrative and managerial problems, leading the pathology department and APA to hire Nancy Kukulinsky as executive director, effective July 1, 1991. Kukulinsky immediately began evaluating the responsibilities of the employees in the business office and had a conference with Christophel to address concerns regarding her performance. Shortly thereafter, Kukulinsky decided to abolish a number of positions, including those held by Christophel with APA and the pathology department. Kukulinsky denies that this decision was related to performance concerns, a point disputed by Christophel.
On September 12, Kukulinsky met with Christophel and gave her both oral and written notice that her position was being abolished effective September 13 due to the reorganization of the department. Christophel was informed that she was entitled to six months notice, during which her salary and benefits would be continued unless she secured new employment. The letter did not inform Christophel of the ten-day limit on filing SPBR appeals as would have been required if Christophel were a classified employee. Thirty-five days after being informed that her position was being abolished, Christophel filed an appeal with the SPBR. Christophel also wrote to Kukulinsky, stating that she should have been in the classified service and that her layoff should have been accompanied with displacement rights. Christophel stated that her claim of entitlement to classified status would be the topic of her SPBR appeal, and requested the University to explore this issue with her prior to the SPBR hearing.
The University accommodated Christophel's request, stating that it would accord Christophel classified status as a senior business service assistant, but explaining that there were no such positions open at the time, and that this position would be abolished in the reorganization. The University formally notified Christophel on January 6, 1992, that her classified position was being abolished, and gave her the option of displacing a part-time employee or going on layoff status with the possibility of being recalled within one year. The letter informed Christophel of her right to appeal to the SPBR "within ten (10) days after receipt of this ... letter." (Emphasis added).
Christophel filed an appeal, but not until February 3, 1992, 18 days beyond the deadline for doing so. The appeal letter stated that it was an amendment to Christophel's original appeal, or, in the alternative, a new appeal which should be consolidated with the original appeal. Contemporaneously with the filing of the second appeal, an administrative law judge issued a report to the SPBR, recommending that Christophel's appeal be denied on timeliness grounds for lack of jurisdiction. The SPBR later accepted the report and recommendation and dismissed the appeal for lack of jurisdiction. Christophel did not appeal the SPBR determination to the Ohio Common Pleas Court. 1
Christophel filed this suit in August 1992 pursuant to 42 U.S.C. Sec. 1983 against the University of Cincinnati, APA, and three individual defendants: Kukulinsky; Kathleen Gubser, the former interim director of personnel, who left the University in 1992; and Joseph Steger, the president of the University. The individual defendants are sued in their official capacities for purposes of seeking injunctive relief, and in their personal capacities for purposes of seeking damages. Christophel's complaint asserted four causes of action, but only the denial of the individual defendants' motion for qualified immunity on the constitutional claim is the subject of this interlocutory appeal.
Christophel's complaint is vague with respect to the constitutional right allegedly violated. The complaint alleges that the University has a history of mislabelling employees as unclassified rather than classified, causing such employees to lose job security. 2 The complaint further alleges that due to the improper labelling of Christophel's job as unclassified, she lost the right to displace similarly situated employees with less seniority and her right to challenge her termination before the SPBR. The complaint concludes, without further elaboration, that defendants deprived Christophel of "rights, privileges and immunities secured by the Fourteenth Amendment." In opposing defendants' motion for...
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