Daudistel v. Vill. of Silverton
| Decision Date | 26 December 2014 |
| Docket Number | APPEAL NO. C-130661 |
| Parties | MICHAEL DAUDISTEL, Plaintiff-Appellant, v. VILLAGE OF SILVERTON, and MARK WENDLING, Defendants-Appellees, and JOHN AND JANE DOE EMPLOYEES AND ELECTED AND APPOINTED OFFICIALS OF THE VILLAGE OF SILVERTON, Defendants. |
| Court | Ohio Court of Appeals |
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed from is: Affirmed
Hardin, Lazarus, Lewis & Marks, LLC, Donald Hardin and David E. Hardin, for Plaintiff-Appellant,
Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere and John W. Hust, and Dinsmore & Shohl and Bryan E. Pacheco, for Defendants-Appellees.
Please note: this case has been removed from the accelerated calendar.
{¶1} Plaintiff-appellant Michael Daudistel, former police chief for defendant-appellee the Village of Silverton ("the Village"), appeals from the judgment of the trial court granting a motion for judgment on the pleadings in favor of the Village and its city manager, defendant-appellee Mark Wendling, on claims for disability discrimination, hostile work environment, intentional and negligent infliction of emotional distress, violation of due process, and civil conspiracy. We affirm.
{¶2} Daudistel, a longtime civil service employee of the Village, who was diagnosed with cancer during his employment, was terminated by the Village pursuant to allegations of wrongdoing. Daudistel appealed the termination to the Silverton Civil Service Commission ("the Commission"), but he retired during the pendency of his civil service appeal and began receiving retirement benefits.
{¶3} After the Village accepted Daudistel's retirement as a "resignation," it moved to dismiss the civil service appeal based on Commission Rule 14.01 that provided the following:
The acceptance by the City Manager of the resignation of a person discharged before a final action on the part of the Commission will be considered a withdrawal of the charges and the separation of the employee concerned shall be recorded as a resignation and the proceeding shall be dismissed without judgment.
{¶4} After a hearing on the Village's motion to dismiss, the Commission determined that Daudistel's retirement was elective, as it was not involuntary due to age, and that such a retirement was the equivalent of a resignation for purposes of the rule. In accordance with the rule, it dismissed Daudistel's civil service appeal without judgment.
{¶5} Daudistel then appealed that decision to the Hamilton County Court of Common Pleas in the case numbered A-1001251. Daudistel brought the appeal pursuant to R.C. 2506.01 and 124.34, both of which provide a common pleas court with jurisdiction to review certain administrative decisions. The case was assigned to a magistrate, who determined that the Commission's decision should be affirmed. The magistrate explained that by retiring during the pendency of the civil service appeal, Daudistel was able to convert his discharge for cause, which jeopardized his retirement benefits, to a resignation in good standing with all of his retirement benefits intact. Daudistel objected to the magistrate's decision, but the trial court overruled the objections and adopted it.
{¶6} During the appeals to the Commission and to the court of common pleas, Daudistel persistently argued that his retirement was not voluntary, but rather a "constructive discharge," a position that was rejected by the Commission and the court. The court also rejected Daudistel's challenges to the pretermination process. Daudistel did not appeal the trial court's judgment affirming the Commission's decision dismissing Daudistel's administrative appeal. Instead, he filed the instant action in the court of common pleas, bringing claims against the appellees for disability discrimination, hostile work environment, intentional and negligent infliction of emotional distress, violation of due process, and civil conspiracy.
{¶7} According to the allegations of the amended complaint, in December 2004, Daudistel entered into an employment contract with the then city, and now village, of Silverton, concerning his civil service position as police chief. Wendling, who was the city manager responsible for the day-to-day operations of the Village, signed the contract on behalf of the Village. The contract specified that the Village had created the Chief of Police position pursuant to the governing charter, and provided for automatic yearly renewals of the employment contract, unless the parties agreed otherwise in writing. In March 2005, Wendling wrote a memorandum to the Village of Silverton Council requesting a raise for Daudistel, who he characterized as a "solid, dedicated employee who goes above and beyond the call of duty."
{¶8} In May 2005, Daudistel underwent surgery for the diagnosis of the condition of Barrett's esophagus with extensive high-grade glandular dysplasia/carcinoma in situ, a protected disability recognized under the Americans with Disability Act and R.C. 4112.01. As a result, Daudistel was unable to work for three months. When he did return to work, he was restricted to light duty work "as tolerated," based on his physician's recommendation, as the disability continued to limit his ability to work and his health was weakened by his medical condition.
{¶9} Daudistel alleged that upon returning to work, he was treated in a hostile and discriminatory manner by Wendling, in concert with the John and Jane Doe defendants, identified only as "employees and elected and appointed officials of the [Village] of Silverton." Daudistel alleged that these defendants had "maliciously" acted to discredit him, to weaken or destroy his contractual rights and benefits by persistently attempting to breach the terms of his employment contract and tochange his employment status to that of an "at-will employee," and to ultimately remove him from his civil service position without cause.
{¶10} Specifically, Daudistel alleged that Wendling, in front of a civil service member, had accused Daudistel of the loss of money from the Village's police property room, improperly terminating an employee, being responsible for a lawsuit filed against the city, assigning personnel in an undercover sting operation that triggered a lawsuit against the Village, and inconsistently promoting the personal relationships between his employees.
{¶11} Also, in March 2006, Wendling asked Daudistel to agree to a revised employment agreement that stated that Daudistel would become an "at-will" employee. Daudistel refused to sign the agreement. At about the same time, Wendling presented an ordinance to the Village's council that he had drafted, which would have changed Daudistel's employment agreement by making him an "at-will" employee. The proposed ordinance indicated that Daudistel had "affirm[ed] and acknowledge[d]" that he was an "at-will" employee. Council did not pass the ordinance.
{¶12} Wendling presented a second ordinance to council in May 2006, after Daudistel had made it known that he was seeking a physical disability retirement. The proposed ordinance would have amended Daudistel's existing employment agreement with the Village by reducing vacation leave benefits and sick leave payment benefits at the time of Daudistel's expected disability retirement. This ordinance, which council did not approve, also contained terms indicating that Daudistel had agreed to the changed terms. After the two ordinances failed to pass, Wendling sent Daudistel a letter stating that his contract would not renew after May 31, 2006, and asking Daudistel to agree to the change. Daudistel rejected Wendling'srequest that he sign the letter, and voiced concern that Wendling was motivated by Daudistel's poor health and medical disability. Daudistel then applied for a disability retirement, and alleges that Wendling's "hostil[ity]" towards him lessened until May 2007, when Wendling learned that Daudistel had withdrawn his application for a disability retirement.
{¶13} On October 23, 2008, Wendling "unexpectedly" served Daudistel with notice of a disciplinary hearing, to be held on the following day, but no charges were included in the notice. The following day, Wendling informed Daudistel that the hearing had been rescheduled until October 30, 2008, and he "threw" a new notice of disciplinary hearing on Daudistel's desk. No charges were outlined in this notice either, and no hearing was conducted on October 30.
{¶14} Then, on October 31, 2008, Daudistel received notice that he had been placed on administrative leave with pay until the pretermination hearing. No revised or additional charges were outlined in that notice, or in a subsequent notice delivered in April 2009.
{¶15} Although Daudistel had been advised that the pretermination hearing would occur within two weeks of his placement on administrative leave, the Village did not conduct any hearing until June 12, 2009. At that hearing, for the first time, the Village announced that the charges against Daudistel were "neglect of duty, incompetency, inefficiency, failure of good behavior, misfeasance, malfeasance, and nonfeasance." The Village also announced at this hearing a charge related to drug paraphernalia from the property room that had allegedly been recovered in Daudistel's desk.
{¶16} Following the June "pretermination hearing," Daudistel was allegedly provided insufficient time to submit additional evidence and written argumentbefore the final decision on the case terminating him, which Wendling issued on September 11, 2009. On September 9, when challenging the amount of time, Daudistel's attorney notified the Village that Daudistel would have to apply for retirement before the decision "to protect his good name and reputation," but also that his retirement "would amount to a constructive...
To continue reading
Request your trial