Lam v. City of Cleveland

• Decision Date: 28 January 2021
• Docket Number: No. 109233,109233
• Citation: 167 N.E.3d 124
• Court: Ohio Court of Appeals
• Parties: David H. LAM, Plaintiff-Appellant, v. City of CLEVELAND, Defendant-Appellee.

167 N.E.3d 124

David H. LAM, Plaintiff-Appellant,

v.City of CLEVELAND, Defendant-Appellee.

No. 109233

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: January 28, 2021

JOURNAL ENTRY AND OPINION

LARRY A. JONES, SR., J.:

{¶ 1} Plaintiff-appellant David Lam ("Lam") appeals from the trial court's October 2019 decision in which it denied his motion for summary judgment and granted the motion for summary judgment of defendant-appellee, the city of Cleveland. For the reasons that follow, we affirm.

Procedural and Factual History

{¶ 2} At all relevant times, Lam was a police officer for the city of Cleveland and a drilling reservist with the Ohio Army National Guard. Lam began his employment with the city in 2008. From the start of Lam's employment with the city until April 17, 2019, Cleveland Codified Ordinances 171.57 governed his pay while he was on military leave. The ordinance provided in relevant part as follows:

All officers and employees of the City who are regular active-duty members of any component of the Armed Forces of the United States, or reservists who are called to active duty to serve in the Ohio National Guard, * * * are entitled to a leave of absence from their respective duties for such time as they are in the military service or field training or active duty. If a City employee's military pay or compensation during such period of leave of absence is less than his or her City pay would have been for such period, he or she shall be paid, by the City, the difference in money between the City pay and his or her military pay for such period.

Former Cleveland Codified Ordinances 171.57(A).¹

{¶ 3} Further, the terms and conditions of Lam's employment as a Cleveland police officer were set forth in the city's collective bargaining agreement ("CBA") with his former union, the Cleveland Police Patrolmen's Association ("CPPA").² Article 13 of the CPPA's CBA stated the following, in pertinent part, with respect to military leave:

An employee who is temporarily called to active duty (e.g. summer training) shall be granted a leave for the duration of such active duty and shall be paid the difference between his [or her] regular pay and his [or her] total military pay (upon receipt of a service pay voucher) for a period not to exceed thirty-one (31) days in any calendar year, and further, shall accumulate vacation and sick leave with pay credit during the period of such leave. Employees on military leave who thereafter return to employment with the City shall receive retirement credit for all time spent in active military service.³

{¶ 4} Thus, under the governing CBA and Cleveland Codified Ordinances 171.57, Lam was entitled to differential pay while on military leave. That is, he was entitled to the difference between his city earnings and his military pay for the entire time that he was on military leave of absence from his city job.

{¶ 5} Ohio law provides a different calculation for pay under military leave, however. Specifically, R.C. 5923.05 provides in relevant part as follows:

(A)(1) Permanent public employees who are members of the Ohio organized militia or members of other reserve components of the armed forces of the United States, including the Ohio national guard, are entitled to a leave of absence from their respective positions without loss of pay for the time they are performing service in the uniformed services, for periods of up to one month, for each federal fiscal year in which they are performing service in the uniformed services.

* * *

(B) Except as otherwise provided in division (D) of this section, any permanent public employee who is employed by a political subdivision, who is entitled to the leave provided under division (A) of this section, and who is called or ordered to the uniformed services for longer than a month, for each federal fiscal year in which the employee performed service in the uniformed services, because of an executive order issued by the president of the United States, because of an act of congress, or because of an order to perform duty issued by the governor pursuant to section 5919.29 of the Revised Code is entitled, during the period designated in the order or act, to a leave of absence and to be paid, during each monthly pay period of that leave of absence, the lesser of the following:

(1) The difference between the permanent public employee's gross monthly wage or salary as a permanent public employee and the sum of the permanent public employee's gross uniformed pay and allowances received that month;

(2) Five hundred dollars.

* * *

(D) No permanent public employee shall receive payments under division (B) or (C) of this section if the sum of the permanent public employee's gross uniformed pay and allowances received in a pay period exceeds the employee's gross wage or salary as a permanent public employee for that period or if the permanent public employee is receiving pay under division (A) of this section.

{¶ 6} Under federal law, the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA" or "the Act") provides that employers may not discriminate against or deny any employment benefit to uniformed service members. See 38 U.S.C. 4311(a). USERRA provides that those on military leave are

entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice or plan in effect at the commencement of such service or established while such person performs such service.

38 U.S.C. 4316(b)(1)(B).

{¶ 7} With the USERRA, Congress sought to "encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment" from military service and to "minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities," and to "prohibit discrimination against persons because of their service in the uniformed services." 38 U.S.C. 4301(a).

{¶ 8} It is Lam's contention that the city was required under Ohio and federal law to provide him pay while on military leave in accordance with R.C. 5923.05, rather than in accordance with Cleveland Codified Ordinances 171.57 and the CBA. Thus, under Lam's calculation, he should be entitled to both his full pay from the military and full pay from the city of Cleveland for one month in each calendar year during which he is on military leave from his city job. Then, after a full month of pay from both the military and city, Lam contends he would be entitled to the lesser of the difference between his city pay and his military pay and allowances, or $500.

{¶ 9} In June 2016, Lam and another Cleveland police officer, Leonard Graf ("Graf"), filed a lawsuit in the U.S. District Court for the Northern District of Ohio. See Lam v. Cleveland , N.D.Ohio No. 1:16CV-01563 ("Lam I "). The city filed a Civ.R. 12(C) motion to dismiss. The district court granted the motion in part and denied it in part. Specifically, the court granted the city's motion as it pertained to Count 2 of Graf and Lam's complaint, which alleged that the plaintiffs were denied a benefit under USERRA because the city of Cleveland did not pay them military pay under R.C. 5923.05. The court denied the city's motion as it related to the plaintiffs’ other claims.

{¶ 10} Subsequently, Lam was deployed overseas and voluntarily dismissed his remaining claims. Graf continued litigating the case, proceeding to discovery and he and the city filing motions for summary judgment. In September 2018, the district court granted judgment in favor of the city of Cleveland on all of Graf's remaining claims. The court found that the city's ordinance was neither unlawful, nor in violation of the federal or state constitutions.

{¶ 11} Meanwhile, in August 2018, Lam filed the within action in the common pleas court. In his second amended complaint, Lam sought relief under three counts: (1) in Count 1, he sought a declaratory judgment; (2) in Count 2, he alleged a violation of R.C. 5923.05, "denying reservists a benefit of an employment and reemployment right accrued during the performance of their military service"; and (3) in Count 3, he alleged a violation of R.C. 5923.05, "denying reservists on military leave rights and benefits provided by Cleveland to other similar employees on comparable furloughs or leave of absences under their CBA with the name plaintiff's union; specifically providing only differential pay to reservists on military leave compared to providing paid leave to other employees on jury duty, at least."⁴

{¶ 12} The parties filed motions for summary judgment, and in October 2019, in a detailed 32-page opinion, the trial court granted the city of Cleveland's motion on all of Lam's claims. Lam now appeals.

Assignments of Error

I. The trial court erred in finding that Cleveland's PML ordinance was constitutional.

II. The trial court erred in finding that USERRA did not pre-empt the city from enacting and enforcing the PML ordinance.

III. The trial court erred in finding that R.C. 5923.05 was not enacted by the General Assembly exercising its authority under Section II, Article 34 of the Ohio Constitution.

IV. The trial court erred by not applying the current Ohio Supreme Court jurisprudence for its home rule analysis.

V. The trial court erred in holding that the ordinance was an exercise of local self-government under the Home Rule Amendment and prevailed over R.C. 5923.05.

VI. The trial court erred in applying res judicata to a special statutory scheme allowing Ohio veterans to relitigate military leave claims.

Law and Analysis

Standard of Review

{¶ 13} We review summary judgment rulings de novo, applying the same standard as the trial court. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671...