Hoover v. Radabaugh, 99CV339.

• Decision Date: 27 November 2000
• Docket Number: No. 99CV339.,99CV339.
• Citation: 123 F.Supp.2d 412
• Parties: Dale D. HOOVER, Plaintiff, v. Patricia RADABAUGH, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

123 F.Supp.2d 412

Dale D. HOOVER, Plaintiff, v. Patricia RADABAUGH, et al., Defendants.

No. 99CV339.

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

November 27, 2000.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Emily Jane Lewis, Farlow & Lewis LLC, Dublin, OH, for plaintiff.

Bridgette Caryn Roman, Stephen Jesse Smith, Schottenstein Zox & Dunn, Columbus, OH, for defendants.

OPINION AND ORDER

MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on the Defendants' Motion for Summary Judgment filed on August 22, 2000.¹ The Plaintiff, Dale Hoover, brought four claims against the Defendants: (1) violation of his right to free speech under the First Amendment, (2) violation of his right to due process under the Fourteenth Amendment, (3) violation of Ohio's public policy tort, and (4) conspiracy, following his termination from employment with the City of Circleville on June 15, 1998. For the following reasons, the Defendants' Motion is DENIED.

II. FACTS

As this is before the Court on the Defendants' Motion for Summary Judgment, the Court will present the facts in the light most favorable to the non-movant, Mr. Hoover.

Mr. Hoover began working for the City of Circleville as a contract employee on August 19, 1994, performing electrical inspections. In January of 1996, he became a full-time employee of the Circleville Building Department. Mr. Hoover has a Master's degree in industrial technology and was certified as a Class III building and electrical inspector. In August of 1997, Allyn Sheldon was hired as the Department's Chief Building Officer ("CBO"). Mr. Sheldon was Mr. Hoover's direct supervisor.

Mr. Sheldon and Mr. Hoover's first dispute involved the implementation of a form checklist for inspectors. Mr. Hoover told Mr. Sheldon that the form had some errors in code compliance, including errors in grounding, bonding and in setting the pressure when testing the plumbing. Mr. Sheldon did not acknowledge the errors and did not correct the form.

On three major projects, Mr. Sheldon ordered Mr. Hoover to sign off on building inspections that did not meet code, or that he was not certified to perform: the Clifton Building, Castle Inn and Boggs Hair Salon projects. The Clifton Building dispute involved a plumbing inspection that Mr. Sheldon told Mr. Hoover to conduct without the proper plumbing certification. Mr. Hoover protested this assignment, but Mr. Sheldon demanded that he go to the site. Mr. Hoover went to the site and informed the owner, Scott Clifton, that he could give him an opinion, but that he was not a plumbing inspector. Mr. Hoover and contract plumbing inspector, Chris Patowski, later returned to the site. Mr. Patowski advised Mr. Clifton that the plumbing was not vented properly and that it needed to be repaired.

The following morning, Mr. Clifton and his tenant, Bob Huffer, a lawyer and a county commissioner, went to see Mr. Sheldon and threatened to sue the Building Department for delaying the project. Mr. Sheldon permitted Mr. Clifton, who is characterized by Mr. Hoover as a wealthy and influential man in Circleville, to "cover-up" the defective plumbing. When it was time for the final inspection, Mr. Sheldon incorrectly told Mr. Patowski that Mr. Hoover had looked at the plumbing. The Mayor, Mr. Starkey, Director of Human Resources, and Ms. Droste, Safety Director,² all told Mr. Hoover to sign off on the violations and to override Mr. Patowski's violations. Mr. Hoover refused. Mr. Hoover contacted Garry Krebbs, the State's chief plumbing inspector, and asked him to intervene in the situation. When Mr. Sheldon heard that Mr. Krebbs was coming, he canceled the scheduled inspection.

Mr. Hoover later ran into Mr. Clifton at Pay & Save. Mr. Hoover told Mr. Clifton that Mr. Sheldon had permitted the defective plumbing to be covered up, and Mr. Hoover's statement got back to Mayor Radabaugh. This became the subject of the "bad mouthing" that resulted in a written warning from Ms. Droste.

When Mr. Patowski did the plumbing inspection of Castle Inn, he found problems such as non-insulated plumbing in the attic. Mr. Sheldon contacted Mr. Patowski to determine whether he would compromise his inspection by not referencing some of the code violations. In addition, Castle Inn was built without an architect-stamped-and-sealed drawing as required by Ohio's building code. Mr. Sheldon was responsible for ensuring compliance of this aspect of the project.

Boggs Hair Salon was also built without a building permit or drawing. Mr. Hoover noted no ceilings or insulation in part of the building creating a firewall hazard, no exit lights, no handicap accessibility, and a hot water tank with an open flame. In addition, the plumbing had the wrong size vents, and the water back flow devices were not installed. Mr. Hoover advised Mayor Radabaugh, Ms. Droste and Mr. Starkey of the situation and was told to sign off on the list of violations. Mr. Hoover instead informed Mr. Boggs that he had ninety days to correct the violations. Without a final plumbing inspection and without Mr. Boggs correcting the code and safety violations that Mr. Hoover had noted, Mr. Sheldon issued a certificate of occupancy permitting Mr. Boggs to open the hair salon.

Mr. Hoover decided, due to the problems he perceived with Mr. Sheldon and the Building Department, to go before the Building Department's Advisory Board ("Advisory Board"). The Advisory Board is comprised of contractors and realtors from the area. Mr. Hoover attended the Advisory Board's meetings to inform them of his concerns about the Department condoning and approving non-compliance with building codes. Mr. Hoover also alerted the State Board of Building Standards to the issues.

In addition to the meetings with the Advisory Board, Hoover had several meetings with City officials Sheldon, Droste and Starkey regarding the activities taking place in and around the Building Department. The first meeting between Mr. Sheldon, Mr. Hoover, Ms. Droste and Mr. Starkey occurred on December 22, 1997. Mr. Starkey warned Mr. Hoover during the December 22 meeting not to criticize the Building Department or Mr. Sheldon in public. Mayor Radabaugh, Ms. Droste and Mr. Starkey agreed that it was inappropriate for an employee to "spill the bad news all over the community." Mr. Hoover discussed Mr. Sheldon's non-compliance with building codes, and Mr. Sheldon's instructions that he sign off on inspections with code violations. A December 29, 1997 memo outlining the substance of the meeting stated: "Jean [Droste] and Ralph [Starkey] stressed the importance of not downgrading the Building Department or its employees in public."

On January 7, 1998, there was a second meeting scheduled by Mr. Sheldon to "straighten things out" between himself and Mr. Hoover. Mr. Sheldon wrote a letter to Ms. Droste outlining the issues with Mr. Hoover, wrote up a list of concerns he had about Mr. Hoover's performance and included a written warning. The infractions spanned the entire length of the employment relationship and were not discussed with Mr. Hoover prior to the letter.

On February 27, 1998, a meeting was held between Messrs. Hoover and Sheldon and Mayor Radabaugh. Mr. Sheldon accused Mr. Hoover of failing to perform a plumbing inspection at Boggs Hair Salon. Mr. Hoover stated that he refused to sign off on the plumbing inspection because there were code violations. Mr. Starkey told Mr. Hoover to look for another job. The Mayor said that someone had to go, and it was going to be Mr. Hoover.

On March 27, 1998, Mr. Hoover went to a city-wide supervisor's meeting. Mr. Hoover thought the meeting was a public one; Mr. Starkey and Ms. Droste, however, told him to leave because the meeting was intended only for designated supervisors. Mr. Hoover left, and was later informed that his conduct constituted insubordination.

Ms. Droste and Mr. Hoover had a meeting in March or April of 1998. Ms. Droste discussed the fact that Mr. Hoover was questioning Mr. Sheldon's practices. Mr. Hoover told Ms. Droste that Mr. Sheldon was threatening to fire him.

On March 30, 1998, Mr. Sheldon gave Mr. Hoover a memo listing three acts of insubordination, including: (1) failure to complete a plumbing inspection at Boggs, (2) indication that Mr. Hoover desired to attend the supervisors meeting after being informed that he was not invited, and (3) being told by the Law Director that Mr. Sheldon was Mr. Hoover's direct supervisor, yet desiring to attend the supervisor's meeting.³ On March 31, 1998, Mr. Hoover met with Mr. Starkey and Ms. Droste to discuss his annual evaluation. Mr. Hoover told Mr. Starkey and Ms. Droste that he wished to appeal his evaluation. Mr. Hoover was concerned that the complaints he had against Mr. Sheldon were not being placed in Mr. Sheldon's personnel file.

On June 11, 1998, Mr. Sheldon and Mr. Hoover had an altercation in the break room. Mr. Hoover's version of the events is quite different from Mr. Sheldon's. According to Mr. Hoover, he, Mr. Sheldon and Ms. Smalley were in the break room in the early morning when Mr. Hoover was copying documents. Mr. Hoover told Mr. Sheldon that he was going to get an attorney. Mr. Sheldon responded that Mr. Hoover should leave his name out of the lawsuit. Mr. Hoover replied, "you're the number one reason why this is happening, so your name is going to be in it." Mr. Hoover stated that he intended to send the records he was copying to the State. Mr. Sheldon and Ms. Smalley then left the room, and Mr. Hoover continued copying files.

About five minutes later, Mr. Sheldon returned to the break room. Mr. Hoover described Mr. Sheldon as a "madman" and thought that he was going to destroy the documents. Mr. Sheldon forcefully came toward Mr. Hoover. Mr. Hoover, feeling threatened, put out his hands as Mr. Sheldon pushed his full weight into him. Mr. Sheldon stated, something to the effect of, "I've got a good thing going here, I...