Hodges v. City of Milford

Decision Date18 January 2013
Docket NumberCase No. 1:10–cv–884.
Citation918 F.Supp.2d 721
PartiesRalph HODGES, Plaintiff, v. CITY OF MILFORD, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

OPINION TEXT STARTS HERE

James Allen Hunt, Rosenhoffer, Nichols & Schwartz, Batavia, OH, James Andrew Whitaker, Jr., Mason, OH, for Plaintiff.

C. Bronston Mccord, III, Erin Michelle Wessendorf–Wortman, Ennis, Roberts and Fischer, Cincinnati, OH, for Defendant.

OPINION AND ORDER

MICHAEL R. BARRETT, District Judge.

This matter is before the Court on the Motion for Summary Judgment of Defendants City of Milford, City of Milford Police Department and Chief Mark Machan (collectively, Defendants). (Doc. 22). Plaintiff Ralph Hodges (Plaintiff) has filed his opposition (Doc. 40), and Defendants have filed their reply (Doc. 41). This matter is now ripe for review.

I. BACKGROUND

The facts are construed in favor of Plaintiff as follows.

A. Employment History

Plaintiff was born on August 25, 1959. (Doc. 24 at 344).1 He enlisted in the United Air Force and remained there until receiving an honorable discharge in November 1978. (Doc. 40 at 1509; Doc. 40–2 at 1571). He began his law enforcement career as a corrections officer for Clermont County's Sheriff's Office on or about July 6, 1993. (Doc. 24 at 346). In 1996, he began to work as an auxiliary officer for the City of Milford and later became a part-time patrol officer. (Doc. 24 at 346–47). On or about August 24, 1998, Plaintiff began working as a full-time patrolman for the City of Milford. (Doc. 24 at 346, 348). He remained in that position until January 17, 2011. (Doc. 24 at 348–49). His employment with the City of Milford ended because he “had decided to take a retirement through the Ohio Police and Fire Pension Board that was offered after he initiated the application process for disability retirement. (Doc. 24 at 349, 352).

Plaintiff did not have an individual employment contract with the City of Milford. (Doc. 24 at 348). Instead, his employment with the City of Milford was governed by the collective bargaining agreement (“CBA”) that existed between the City of Milford and the Fraternal Order of Police, Ohio Labor Council, Inc. (Doc. 24 at 348). That CBA contained a grievance procedure that was to be used when a bargaining unit employee alleged that there had been a “breach, misinterpretation, or improper application of the Agreement.” (Doc. 22–1 at 107).

B. Vacant Sergeant's Position and Sergeant's Examination

In February 2005, the City of Milford hired a new Chief of Police, Defendant Mark Machan (“Machan”). (Doc. 23 at 235). Prior to Machan being hired, the Chief's position had been filled on an interim basis by Dan McDonald. ( See Doc. 40–1 at 1527–1534) When Machan took over as Chief, McDonald provided Machan with a multi-page analysis of the Milford Police Force that included a rundown on the various officers. (Doc. 40–1 at 1527–1534). That analysis specifically includes a brief commentary on Plaintiff, which provided, in part: “THIS officer is your cross to bear and he always seems to be on the edge. He will challenge at every opportunity. Do as you wish, I would be poised to move him out at the first available opportunity.” (Doc. 40–1 at 1529).

In 2008, Machan indicated in the City of Milford Police Department's annual report that he would be taking steps to fill the sergeant position that became vacant with the 2007 retirement of Sergeant Ray Butler. (Doc. 40–2 at 1561). In March 2008, Machan met with Milford's Personnel Commission to start the hiring process for the vacant sergeant's position. (Doc. 40–1 at 1540). Machan explained that he would use an “assessment center process” to “fill the vacant sergeant's position,” and the “scoring would be based on a point system” where the “assessors will not know the candidates taking the exam” except by number. (Doc. 40–1 at 1540). Machan stated that he would get back to the commission with a date for the sergeant's examination. (Doc. 40–1 at 1540). According to Secretary Sue Ruhoff, there was no discussion at that meeting as to whether the City could afford to pay for the sergeant's position. (Doc. 25 at 435–36). She testified that she did not believe Machan would have asked for the sergeant's position if he did not believe he had the money to pay for it. (Doc. 25 at 435–36).

The next time that the sergeant's examination was discussed with the Personnel Commission was on November 13, 2008. (Doc. 40–1 at 1542–43). At that meeting, it was reported that the sergeant's examination would be conducted at an assessment center on November 22, 2008 and that an announcement of the examination was sent to all of the Milford officers. (Doc. 40–1 at 1542–43). There was no mention of whether there would be sufficient funds to pay for the sergeant's position. (Doc. 40–1 at 1542–43).

The sergeant's examination was held on or about November 22, 2008 and was conducted by three chiefs of police from neighboring jurisdictions. (Doc. 40–2 at 1549–57). Six officers, including Plaintiff, competed for the position. (Doc. 40–2 at 1571). A “Final Report” of the Milford Police Sergeant's Assessment is dated November 24, 2008. (Doc. 40–2 at 1549). In that report, Plaintiff, as candidate “F,” is shown as having scored 276 total points. (Doc. 40–2 at 1557; Doc. 24 at 394). With that point total, Plaintiff tied for third place on the sergeant's examination. (Doc. 40–2 at 1557). That total did not include any employment credits or veteran's preference points. ( See Doc. 40–2 at 1557).

On or about December 4, 2008, an email was sent to Machan that contained the sergeant test results. (Doc. 40–1 at 1548). On December 22, 2008, Machan sent an email to the six candidates for the sergeant's position stating:

I know that you are very anxious about finding out have [sic] you have done. I spoke with the Chief from Loveland who is working on the final report. He is just about complete and will have it to personnel commission soon. Once he give [sic] the report to the commission and I receive it[,] I will add the pre-assessment points. I will keep you updated the best I can.

(Doc. 40–2 at 1558).

Another “Final Report” of the Milford Police Sergeant's Assessment is dated January 14, 2009. (Doc. 40–2 at 1562). In that report, Plaintiff, as candidate “F,” was again shown as having scored 276 total points, which meant he placed third on the sergeant's examination. (Doc. 40–2 at 1570; Doc. 24 at 394). Again, that total did not include any employment credits or veteran's preference points. (Doc. 40–2 at 1570; Doc. 24 at 394). On that same date, an email was sent to Sue Ruhoff with that final report. (Doc. 40–1 at 1545).

On January 15, 2009, Machan sent out an email that indicated he could not have the Milford Police Department not be in compliance with the Milford Codified Ordinance relating to parking regulations. (Doc. 40–1 at 1546). He later noted on January 21, 2009 that “the only employee that was affected was Officer Hodges.” (Doc. 40–1 at 1546).

On February 12, 2009, Sue Ruhoff forwarded the test results to City Manager Loretta Rokey and Machan, indicating that she also had received “your e-mail today with the names that are associated with the ‘letters' on the results.” (Doc, 40–1 at 1544). She requested to send the results to the Commission members for acceptance of the report. (Doc. 40–1 at 1544).

During the first part of 2009, Plaintiff verbally asked Machan about the status of the examination and was consistently told that the results would be posted as soon as Machan received them. (Doc. 24 at 389). Having not received the results, Plaintiff sent an email to Machan on July 27, 2009 in which he requested to see his test scores from the sergeant's examination given in November 2008. (Doc. 40–1 at 1547). He indicated that if Machan did not have them, then he wanted the name and number of the person that did have them. (Doc. 40–1 at 1547).

The first time Plaintiff saw the Final Report was in or about October 2009. (Doc. 24 at 392–93). On that report, Plaintiff was identified as a candidate “F,” and based upon the results contained in that report, Plaintiff did not score the highest on the sergeant's examination. (Doc. 24 at 393–95). Machan testified that although he received the assessment score from the 2008 sergeant's examination that indicated Plaintiff did not finish first among the candidates, he never tallied the final scores for that examination. (Doc. 23 at 281–82). During litigation, however, Plaintiff received a document showing that when given a 10% credit for his service as a veteran as well as other employment credits, he scored 330 points. (Doc. 40–2 at 1571). Having received 330 points, Plaintiff had scored the highest on the sergeant's examination. (Doc. 40–2 at 1571).

Plaintiff was never promoted to sergeant during his tenure with the City of Milford. In fact, the vacant sergeant's position was never filled by the City of Milford until 2011 based upon the results of a sergeant's examination given in 2011 after Plaintiff had resigned from the City of Milford. (Doc. 25 at 456). Like all sergeants' promotions since 2003, the officer that was promoted to the sergeant's position in 2011 was under the age of 40. (Doc. 40–2 at 1575). If Ralph had been promoted to sergeant, then his salary would have increased by $6,955 per year. (Doc. 40–2 at 1574).

C. The City of Milford's Budget

For the 2008 fiscal year, the City of Milford had a budget deficit. (Doc. 27 at 637). For the first three months of 2009, the City of Milford ran on a temporary budget. In March 2009, Defendants finalized their budget for 2009 with approval from City Council. (Doc. 22–3 at 187–212). Based on that finalized budget, the City of Milford projected a deficit of $493,744 in the general fund for the 2009 fiscal year. (Doc. 22–2 at 187–212). However, Secretary Sue Ruhoff testified that she did not recall any discussion about budget problems and not being able to fill the sergeant'sposition in 2009...

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