Gross v. Vill. of Minerva Park Vill. Council
| Decision Date | 05 February 2014 |
| Docket Number | Case No. 2:12–cv–12. |
| Court | U.S. District Court — Southern District of Ohio |
| Parties | Jason GROSS, Plaintiff, v. VILLAGE OF MINERVA PARK VILLAGE COUNCIL, et al., Defendants. |
OPINION TEXT STARTS HERE
Grant Douglas Shoub, Hunter Carnahan Shoub & Byard, Columbus, OH, for Plaintiff.
D. Patrick Kasson, Reminger Co., L.P.A., Columbus, OH, for Defendant.
This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment (Doc. 47), Defendants' Motion for Summary Judgment (Doc. 50), and what is fairly characterized as a motion by Defendants for leave to supplement their motion for summary judgment (Doc. 54). All motions are fully briefed and ripe for decision. For the reasons that follow, the Court GRANTS Defendants' motion to supplement, GRANTS Plaintiff's Motion for Partial Summary Judgment, and GRANTS IN PART and DENIES IN PART Defendants' Motion for Summary Judgment.
Plaintiff, Jason Gross, was employed by the Village of Minerva Park as a police officer. (Doc. 47, Ex. 1, Adm. by Def. at 5). Defendant, Lynn Eisentrout, is Mayor of the Village. (Doc. 51, Ex. 3, Eisentrout Depo. at 7:7–7:9). Defendant, Kimberly Nuesse, is the Chief of Police for the Village. .
On July 18, 2011, following allegations that, among other things, Gross had misrepresented department policy to other organizations, Eisentrout wrote a letter to Gross in which she purported to terminate Gross' employment as a police officer. Eisentrout wrote:
On July 14, 2011, I received the final report from Chief Kimberly Nuesse and discussed it at length with her..... I am in agreement with Chief Nuesse's recommendation that your employment with the Minerva Park Police Department be terminated immediately.
In accordance with Section 737.19(B) [Ohio Rev.Code § 737.19(B) (1996) ], I am obligated in [sic] inform you that you
Please return all equipment and identification belonging to the Minerva Park Police Department within two business days (July 20, 2011) to Chief Nuesse.
. Gross was served with this letter on July 18, 2011, by hand delivery at the same time he was first given notice of the charges against him. (Doc. 51, Ex. 3, Eisentrout Depo. at 47:4–47:9; Doc. 47, Ex. 2, Eisentrout Council Testimony at 200:11–200:22; Doc. 56, Ex. 2, Nuesse Council Testimony at 172:9–172:20). A few days later, through counsel, Gross expressed his intention to appeal.
Eight days after Eisentrout's letter, on July 26, 2011, Jennifer Croghan, Solicitor/Law Director for the Village of Minerva Park, sent a letter to Gross' counsel explaining that, in light of his decision to appeal, Gross would be placed on paid administrative leave with pay and benefits dating back to July 18, 2011, pending the appeal. (Doc. 53, Ex. B, Croghan Aff. at ¶ 4). This letter spawned a series of communications between Croghan and Gross' counsel, Grant Shoub, regarding whether the termination by Eisentrout was indeed a termination or merely a “proposed termination” or “recommendation to terminate.” ( See Doc. 53, Exs. B1–B4, Croghan/Shoub Ltrs. 07/26/11). With neither side agreeing on the appropriate nomenclature, the appeal Gross sought went forward, with hearings before the Village Council on the matter of Gross' continued employment on September 21 and 26, 2011. (Doc. 27, Ex. B, Council Rpt. at 3).
Following deliberations in the wake of the September 26th hearing, the Council “modifie[d] the Mayor's termination of Jason Gross as a police officer for the Village of Minerva Park” and instead “set[ ] forth [ ] discipline for the violation(s)” which took the form of “a three-week suspension without pay ....” Id. at 6. The suspension began on September 27, 2011. Id.
Following the suspension, and his reinstatement, on December 7, 2011, Gross filed a lawsuit in the Franklin County Court of Common Pleas. (Doc. 3, Compl.). That case, once removed by Defendants, became this case, number 2:12–cv–12. (Doc. 2, Not. of Remov.). In the course of litigating, the parties participated in mediation sessions on June 29, 2012, and July 25, 2012, before a magistrate judge of the United States District Court for the Southern District of Ohio. Neither mediation resulted in the settlement of the lawsuit.
On August 1, 2012, Gross received a “Memo” informing him that he was being placed on “paid administrative leave pending an investigation of [his] recent conduct which may result in disciplinary action.” (Doc. 27, Ex. D, Nuesse Memo. 08/01/12 at 1). This was followed, on August 10, by a 12–page letter from Nuesse (that copied Eisentrout) alleging a “continued pattern of incompetence, neglect of duty and failure to obey orders” and recommending that the Mayor terminate Gross' employment with the police. (Doc. 27, Ex. E, Nuesse Ltr. 08/10/12 at 1, 12). Nuesse's letter advised Gross that within five days, the Mayor would “inquire into the matter and render judgment on it.” Id. at 12. He could, Nuesse's letter said, advise the Mayor within those five days that he would like to meet with the Mayor to “discuss the[ ] charges as part of her inquiry ....” Id.
The same day, August 10, Gross gave the letter to his attorney. . Within the 5–day window, on August 13, 2012, Gross' attorney requested a “pre-disciplinary hearing” and copies of several documents in order to prepare. . The Village responded the next morning with the requested documents and a letter. . In the letter, the Village Law Director opined that the Mayor was not required by law to grant Gross a “pre-disciplinary hearing” but did offer a meeting with the Mayor at 6:15 p.m. that day or any time between 7:30 a.m. and 10:00 a.m. the next day. Id. at 1. Gross' counsel responded that same day by letter. . He explained that neither he nor Gross were available during the offered times and that, in any case, such short notice would not give him time to review materials in preparation for the meeting. Id. Neither Gross nor his attorney met with the Mayor. (Doc. 51, Ex. 1, Gross Depo. at 146:17–150:12). Thus, on August 15, the Mayor again issued a letter (substantially identical to that issued in July of 2011) purporting to terminate Gross' employment. . However, unlike the July event, Gross did not appeal this action to the Village Council. (Doc. 51, Ex. 1, Gross Depo. at 34:18–41:4) (Gross explaining that he did not appeal). Thus, on August 15, Gross was terminated and this time, he remained so.
In this lawsuit, Plaintiff, Jason Gross, sues Defendants, Lynn Eisentrout and Kimberly Nuesse, both in their individual capacities and in their capacities as Mayor and Chief of Police of the Village of Minerva Park, respectively. (Doc. 27, 2d. Amend. Compl. at ¶¶ 7–14, 27–30). According to the second amended complaint, Gross claims against Eisentrout and Nuesse under the aegis of 42 U.S.C. § 1983. Id. He brings claims based on the Fourteenth Amendment Due Process Clause for their failure to provide him with a pre-disciplinary hearing prior to firing him on July 18, 2011, and August 15, 2012. Id. Gross also claims against both Eisentrout and Nuesse for First Amendment retaliation based on two theories: 1 First, that the August 15, 2012 termination and events leading up to it, was in retaliation for his filing and failing to settle the instant lawsuit. Id. at ¶¶ 15–26. Second, that the July 18, 2011 termination was based on protected comments that he made to Mothers Against Drunk Driving (MADD). Id.
Plaintiff has moved for partial summary judgment on his due process claim against Eisentrout arising out of her failure to provide him with a pre-disciplinary hearing before allegedly terminating his employment on July 18, 2011. . Defendants have also moved for summary judgment as to all claims. (Doc. 50, D. Mot. for SMJ).
The standard governing summary judgment is set forth in Rule 56(a) of the Federal Rules of Civil Procedure, which provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Summary judgment will not lie if the dispute about a material fact is genuine; “that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate, however, if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. See Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir.2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
When reviewing a summary judgment motion, the Court must view all the facts, evidence and any reasonable inferences that may permissibly be drawn from the facts, in favor of the nonmoving party. See, e.g., Crawford v. Metro. Gov't, 555 U.S. 271, 274 n. 1, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009) (quoting Brosseau v. Haugen, 543 U.S....
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