Galli v. Morelli

• Decision Date: 06 August 2003
• Docket Number: No. 01-CV-1056.,01-CV-1056.
• Parties: Stephen GALLI, Plaintiff, v. Jill MORELLI, Defendant.
• Court: U.S. District Court — Southern District of Ohio

277 F.Supp.2d 844

Stephen GALLI, Plaintiff, v. Jill MORELLI, Defendant.

No. 01-CV-1056.

United States District Court, S.D. Ohio, Eastern Division.

August 6, 2003.

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Emily Jane Lewis, Keith William Franken, Law Office of Emily J. Lewis, Dublin, OH, for plaintiff.

David S. Bloomfield, Jr., Porter Wright Morris & Arthur, Columbus, OH, Richard Nicholas Coglianese, Ohio Attorney General, Columbus, OH, for defendant.

OPINION AND ORDER

MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on the Defendant's Motion for Summary Judgment, filed on December 16, 2002. The Defendant seeks summary judgment with respect to the Plaintiff's claim brought pursuant to 42 U.S.C. § 1983, alleging retaliation in violation of the First Amendment to the United States Constitution.

For the following reasons, the Court DENIES the Defendant's Motion for Summary Judgment in part and GRANTS the Defendant's Motion in part.

II. FACTS

The Plaintiff, Stephen Galli, was employed with The Ohio State University's ("OSU") Architectural Planning Office as an "Architect 2." In his position, Galli often served as a "project captain," the person typically responsible for early planning on an architectural project, selection of the architect, administration of the design phase, bidding, construction, oversight, and warranty period. Galli worked under the supervision of the Defendant, Jill Morelli, the University Architect, from some time in 1995 until his termination in November 1999. In his role as project captain for any architectural project, Galli reported to Morelli.

In her supervisory position as the University Architect, Morelli conducted annual performance evaluations of all Architect 2s, including Galli. Morelli conducted these evaluations pursuant to the "360-degree" evaluation process that she designed. In conjunction with the evaluations, Morelli requested that the employee being evaluated provide her with a list of approximately five people with whom the employee had worked during the previous year. Morelli then randomly selected three of the five people listed, and sent those three people a form on which to provide an evaluation of the employee. Once returned, those evaluations were compiled, along with Morelli's own evaluation form. At her deposition, Morelli testified that each of the three evaluations from the individuals outside the University Architect's office was to be weighed equally with Morelli's personal evaluation in determining the employee's overall evaluation rating. After compiling the four written evaluations-three from outsiders and one from Morelli-Morelli met with each employee to discuss the evaluation.

In 1995, the year Galli was first evaluated by Morelli, Galli's written performance evaluation included eleven areas for review. Each area was to be assigned one of four ratings: excellent, above average, average, or below average. In that evaluation, Galli received a rating of "excellent" or "above average" in nine out of eleven categories. Galli received a score of between "average" and "below average" in the following area, which fell under the general category of communications: "Communicates in a logical and clear manner in preparing reports, letter, memos, and dealing with co-workers, clients, subordinates, etc. Handles conflicts in a calm and professional manner." In the comments portion of the evaluation form beneath this area, Morelli wrote: "Definitely an area for improvement. Highly recommend a class in this."

In 1996, the performance evaluation form was altered to include seven, instead of eleven, areas of review. Galli received "above average" or "average" on six of the seven criteria, including an "above average" for "Shows professional courtesy and respect; is friendly and helpful." He received a rating of "below average," however, in the category regarding an ability to communicate "in a logical and concise manner." In the comments under that part of the evaluation, Morelli wrote: "has forgotten critical stakeholders at critical times; working very hard on clarity of e-mail but sometimes assumes a knowledge level that is not present." In the comments under "exhibits personal growth/improvement," on which Galli received an "above average," Morelli noted that Galli "wishes to improve and has exhibited that in his much improved e-mails."

On his 1997 evaluation, which was scored on a scale of one to five, with five being the highest, Galli scored a four for his ability to communicate "in a logical and concise manner." Morelli also commented that Galli's e-mail communication was "much improved." She did note, however, that he is sometimes perceived as "picky" by those with whom he works. Overall, Galli's 1997 evaluation included scores ranging from three to five, or average to excellent. Two of the people contacted by Morelli for outside reviews as part of the 360-degree evaluation gave him scores of four or higher on all categories. One of those two gave Galli a score of five on his ability to communicate in a logical and concise manner, and commented that Galli is "always striving for consensus but making the university's position clear." That same reviewer, however, also commented that Galli "didn't really see the difficulties in coordinating communications between multiple contractors or wasn't able to facilitate them adequately to have a timely conclusion to the project."

In his 1998 evaluation, Galli again received an above average score in the area of communications. Regarding his ability to communicate in a concise and logical manner, Morelli commented that this was "an area of significant improvement particularly in `written' communication." She noted, however, that she had few observations of Galli's verbal communications. Although the communications area of the 1998 evaluation was positive, in that same evaluation Morelli commented that Galli had alienated OSU's Traffic and Parking Division ("T & P"). Apparently, that comment arose out of Galli's refusal to pay his parking tickets and his requests that T & P cancel those tickets. Ultimately, someone from T & P contacted Morelli about Galli's refusal to pay his tickets. Morelli alleges that, as a result of that episode, it became difficult for the Architect's Office to work with T & P. All three of the people selected by Morelli to provide outside evaluations in 1998 gave Galli scores of three, or average, or higher.

During the course of his employment with OSU, Galli oversaw numerous OSU building projects of various sizes. At any one time, he oversaw anywhere between ten and twenty-five projects. Of particular importance to this case is Galli's assignment as Project Captain to the construction phase of the Stillman Hall renovation project, which involved the renovation of the first four floors of the building that houses the Department of Social Work.¹ That project was state funded and state administered, which meant that OSU's Architect's Office merely assisted the State Architect's Office in administering the project.

Galli was assigned to work on the Stillman Hall project in 1998. Five primary parties or entities formed the team responsible for the Stillman Hall project: (1) the State Architect's Office, which was represented by Howard Geisler, the Acting State Architect, and Barry Strickland, a Field Representative; (2) OSU, which was represented by Galli and Morelli; (3) the Associate Architecture firm,² HKI Associates, Inc. ("HKI"), which was represented by Kay Onwukwe and Leon Humphrey; (4) the Consulting Architect, Moody/Nolan Ltd., Inc. ("Moody/Nolan"), which was represented by Paul Pryor; and (5) the primary contractor, the Cody Zeigler Construction Company ("CZ"). Galli's responsibilities as Project Captain included meeting with representatives of each party or entity on the "construction team" once per week to discuss the status of the work being done and the progress of the work yet to be done on the project. Galli's role at those meetings was to listen, facilitate, and solve problems between the university and the various parties to the extent possible.

While working on the Stillman Hall project, the Plaintiff identified and spoke to members of the construction team, including Morelli, about several issues. First, Galli identified a topsoil issue. In June 1998, CZ, the contractor, requested a field work order, claiming that additional excavation of topsoil beyond that called for in the original contract was necessary. Onwukwe, the representative from HKI, and Galli signed two field work orders to approve this additional topsoil excavation. On July 10, 1998, however, while Galli was observing the excavation work, he noticed that CV was excavating clay, not topsoil. He told the contractor to stop excavating. The excavation was then reviewed by a soil engineering contractor, who determined that the additional topsoil excavation for which CZ had requested the field work order had not been necessary.

Subsequently, CZ submitted a pay request for the full field work order amount. Galli refused to approve this pay request, explaining to Morelli that he believed that it sought payment for work that was neither necessary nor performed. During his deposition, Paul Pryor, an employee of Moody-Nolan, testified that Galli's actions in refusing to sign the pay order caused discord among the construction team.

Second, in February 1999, Galli voiced his concern to members of the Stillman Hall renovation team, including Morelli, that the contractor had improperly constructed the wall envelope, making the wall envelope defective. According to Morelli, the problems with the wall envelope were not resolved among members of the construction team until after Galli was removed from the project.

Soon thereafter, in March 1999, Galli advised the team members of safety issues that he said resulted from the improper application of fireproofing to various columns...