Davis v. City of Cleveland, 2004 Ohio 6621 (OH 12/9/2004)
| Decision Date | 09 December 2004 |
| Docket Number | Case No. 83665. |
| Citation | 2004 Ohio 6621 |
| Parties | Charles L. Davis, et al., [Annie Smith], Plaintiff-Appellant, v. City of Cleveland, et al., Defendants-Appellees. |
| Court | Ohio Supreme Court |
James H. Banks, P.O. Box 40, Dublin, OH 43017, for Plaintiff-Appellant: [Annie Smith].
Subodh Chandra, City of Cleveland Law Director, Kevin J. Gibbons, Assistant, Amy E. Marquit Renwald, Assistant, 601 Lakeside Avenue, Room 106, Cleveland, OH 44114, for Defendants-Appellees.
JOURNAL ENTRY AND OPINION
{¶ 1} Plaintiff-appellant, Annie Smith, appeals the judgment of the Cuyahoga County Common Pleas Court granting summary judgment to defendants-appellees, City of Cleveland, Lloyd Bratz and Joseph Sadie, on her claims for racial discrimination, defamation and invasion of privacy. For the reasons that follow, we affirm.
{¶ 2} The record reveals that plaintiffs Charles Davis, George Early and Annie Smith are or were employed as police officers with the City of Cleveland ("City") in its police department. At all times relevant to this case, Davis was a sergeant in the department, responsible for supervising both Early and Smith, while Davis was supervised by defendants-appellees, Commander Lloyd Bratz and Captain Joseph Sadie. All of the officers worked in the Bureau of Community Police ("BCP"), a unit of the police department aspiring to reduce crime through greater police presence.
{¶ 3} In February 2001, Davis, Early and Smith, all whom are African-American, filed a complaint against the City, Bratz and Sadie (collectively referred to as the "City" where appropriate), alleging racial discrimination, defamation and invasion of privacy. Early died during the pendency of the action and was subsequently dismissed from the case. The City moved for summary judgment on the defamation and invasion of privacy claims asserted by the remaining plaintiffs and on the discrimination claim asserted by Smith. The trial court granted the motion.
{¶ 4} The discrimination claim asserted by Davis, however, remained pending and ultimately went to trial, at which time a jury rendered a verdict against the City and awarded Davis damages totaling $8,600.00. Smith is now before this court and appeals the grant of summary judgment to the City on all of her claims.1
{¶ 5} An appellate court reviews a trial court's decision on a motion for summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. Summary judgment is appropriate when, construing the evidence most strongly in favor of the nonmoving party, (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 369-370, citing Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, paragraph three of the syllabus; see, also, Civ.R. 56(C).
{¶ 6} In order to prevail on a race discrimination claim brought under Title VII or R.C. Chapter 4112, a plaintiff must make a prima facie showing that he or she (1) is a member of the protected class; (2) is or was qualified for the position and performed it satisfactorily; (3) suffered an adverse employment action; and (4) was treated differently than similarly situated non-minority employees for the same or similar conduct. See Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 197; see, also, Texas Dept. of Community Affairs v. Burdine (1981), 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207, citing McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to show a legitimate, nondiscriminatory reason for the adverse employment action instituted by the employer. Id. If the defendant makes this showing, the burden shifts once again to the plaintiff, who then is given the opportunity to demonstrate that the defendant's articulated reason for the adverse employment action is merely a pretext for impermissible race discrimination. Id. The ultimate burden of persuasion remains at all times with the plaintiff. Id.
{¶ 7} It is undisputed that Smith is a member of a protected class and appeared to be performing her job somewhat satisfactorily, despite infractions of some department rules. The City maintains that summary judgment was properly granted on this claim, however, because Smith cannot demonstrate that she suffered an adverse employment action. Indeed, Smith continues to be employed as a police officer and, according to the City, has not been subject to a significant change in employment status, such as being discharged, demoted or having her benefits reduced.
{¶ 8} Smith, on the other hand, contends that she has suffered several instances of adverse employment action. In particular, she contends that she was reprimanded in front of her fellow officers, placed on probation for sick leave abuse and subjected to discipline for actions that similarly-situated non-minority officers were not.
{¶ 9} In order to demonstrate that an adverse employment action has occurred, a plaintiff must establish that employer conduct caused a "materially adverse change in the terms and conditions of employment." Kocsis v. Multi-Care Mgt., Inc. (C.A.6, 1996), 97 F.3d 876, 885.
{¶ 10} Hollins v. Atlantic Co. (C.A.6, 1999), 188 F.3d 652, 662.
{¶ 11} The anti-discrimination statutes, however, do not insulate an employee from discipline for "violating the employer's rules or disrupting the workplace." Rose v. Buckeye Telesystem, Inc. (N.D.Ohio 2001), 181 F.Supp.2d 772, 776-777, quoting Scroggins v. Univ. of Minn. (C.A.8, 2000), 221 F.3d 1042, 1045.
{¶ 12} We will discuss in turn each of the incidents that Smith contends constituted an adverse employment action.
{¶ 13} The Cleveland Police Department instituted a sick leave abuse policy in 1999, which provided that any officer with four unsupported absences due to sick leave would be investigated for a pattern of sick leave abuse. The documentary evidence appended to the City's brief indicates that Smith was on sick leave for 16 days in one quarter, which triggered an investigation. Bratz ordered Davis to investigate the incidents giving rising to Smith's use of sick time. Davis testified in deposition, however, that he was ordered to issue her a "Letter of First Warning" for sick leave abuse, which he did. This letter stated that Smith's usage of sick time met the definition of "sick leave abuse" because she was on sick leave "sixteen days in a rolling three month period and four of those days were without a doctor's excuse." Davis qualified this reason with the notation that this was his investigation "without consulting [Police Officer] Smith." Regardless of the circumstances surrounding the issuance of this letter, it is undisputed that Smith was indeed absent 16 days in the quarter at issue.
{¶ 14} A "Letter of First Warning" is considered "Step One" of the Sick Leave Abuse Program, which requires the officer to obtain a physician's certificate clearly justifying each day of sick leave taken for the next nine months. This letter becomes part of the employee's employment record, as does any response by the employee.
{¶ 15} Disciplinary action in the form of a written warning may constitute an adverse employment action when the warning affects an employee's opportunity for promotion and pay raises or may place the employee on probation. Rose v. Buckeye Telesystem, Inc., 181 F.Supp.2d at 776-777, citing Cunningham v. Kansas City Star Co. (W.D.Mo. 1998), 995 F.Supp. 1010, 1025. The same is true if the warning affects or has an impact on privileges associated with employment. Id., citing Duran v. N.M. Dept. of Labor (D.N.M. 2001), 143 F.Supp.2d 1278, 1285.
{¶ 16} Here, Smith argued that the written warning issued to her prevented her from working secondary employment, a privilege of employment. Some courts2 may construe such a warning letter as an adverse employment action because it has the potential to affect a privilege of employment. We find it unnecessary to reach this issue, however, because the documentary evidence appended to Smith's brief opposing the City's motion indicates that this warning letter was removed from her personnel record and, therefore, any possible complaint has been remedied.
{¶ 17} In order to increase police presence in the community, the BCP unit requires that each officer ride in his or her own patrol car. The documentary evidence appended to the City's brief indicates that Smith and another officer were observed riding together and that this conduct was brought to Davis's attention. Smith admitted in deposition that she had engaged in such conduct in the past. According to Davis's deposition testimony, Davis was ordered by Bratz to remind the officers of the BCP rule requiring separate cars. During a March 2, 2000 roll call, Davis did so, but in so doing, mentioned Smith and the other officer by name. Smith became upset, asked to be taken to the hospital and was out on sick leave for some time afterward. Bratz chastised Davis for...
To continue reading
Request your trial
-
Ewing v. Lucas Cnty. Dep't of Job & Family Servs.
... ... COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION Date: December 5, 2012 ... of the United States and a resident of the City of Toledo (Docket No. 19, p. 2 of 9; No. 27, p. 5 ... Paskvan v. City of Cleveland Civil Serv. Comm'n, 946 F.2d 1233, 1235 (6th ... is protected by qualified privilege." Davis, et al. v. City of Cleveland, et al., 2004 Ohio 6621, *P43 (Ohio App. Ct. Page 17 2004). When ... ...