Scaccia v. Lemmie

• Decision Date: 06 May 2002
• Docket Number: No. C-3-02-53.,C-3-02-53.
• Citation: 236 F.Supp.2d 830
• Parties: John J. SCACCIA, et al., Plaintiffs, v. Valerie LEMMIE, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

236 F.Supp.2d 830

John J. SCACCIA, et al., Plaintiffs, v. Valerie LEMMIE, et al., Defendants.

No. C-3-02-53.

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

May 6, 2002.

COPYRIGHT MATERIAL OMITTED

Dwight Dean Brannon, John Josephy Scaccia, Dayton, OH, for plaintiff.

Dianne Frances Marx, Rieser and Marx-3, Neil Frank Freund, Freund Freeze & Arnold-3, Leonard J Bazelak, Freund, Freeze & Arnold, Dayton, OH, for defendant.

DECISION AND ENTRY SUSTAINING PLAINTIFFS' MOTION FOR REMAND (DOC. # 6); CAPTIONED CAUSE REMANDED TO THE MONTGOMERY COUNTY COURT OF COMMON PLEAS; JUDGMENT TO BE ISSUED ACCORDINGLY; TERMINATION ENTRY

RICE, Chief Judge.

The instant litigation is brought by Plaintiff John J. Scaccia, a former attorney for the City of Dayton, due to alleged discrimination and harassment during his employment, and his subsequent termination.¹ According to his Complaint (Doc. # 1),² Scaccia, a Caucasian male, began his employment with the City of Dayton in approximately 1985. In December of 1992, he held the position of Chief Prosecutor. In late 1997 or early 1998, the Law Director of the City of Dayton, Mr. J. Anthony Sawyer, announced that he intended to retire. The City of Dayton began to consider candidates to fill the vacated position. Plaintiff was informed that the only criteria for the Law Director position was that the individual must have five years of municipal law experience. Scaccia applied for the position. After a search by an executive search company, the field of final candidates was narrowed to four individuals: Scaccia, another male Caucasian-American, an African-American male and an African-American female. Before a hiring decision had been reached, all of the candidates, except Scaccia, had removed themselves from consideration.

According to Plaintiff, Defendant Valerie Lemmie ("Lemmie"), the Dayton City Manager and an African-American, and other persons in operational control of the Dayton City Government decided that an African-American should hold the position of Law Director.³ Because Scaccia is not African-American, Lemmie allegedly began to recruit African-American attorneys for the Law Director position. In September, 1998, Lemmie announced that Defendant J. Rita McNeil ("McNeil") had been appointed as the next Law Director. McNeil is African-American and, at that time, was under the age of 40. She had no prior municipal law experience.

Following the appointment of McNeil, Plaintiff began to experience a gradual decrease in his responsibility and authority. In the Fall of 1998, Scaccia was removed as Chief Prosecutor and "temporarily reassigned" to the Law Department.⁴ He was appointed Chief Administrative Counsel; however, he was not permitted to have any significant involvement in civil service and labor matters. His reassignment resulted in the loss of significant supervisory authority, and he largely was not responsible for delegating assignments to others. Plaintiff alleges that Defendants excluded him from any legal matter for which they could reasonably anticipate him to be successful and for which he could receive positive recognition. Plaintiff was excluded from meetings, discussions, and conferences, and he was "passed over" in the supervisory chain of command.⁵ Scaccia was not permitted to do evaluations for the individuals who should have been reporting to him.

In the Spring of 1999, the City of Dayton announced that it was seeking to fill the position of Chief of the Criminal Division (i.e., Chief City Prosecutor) through competitive application. Scaccia applied for the position, but was not selected. Throughout 1999 and 2000, Plaintiff allegedly continued to suffer from Defendants' efforts to sabotage his career and to harm his reputation, as demonstrated by Defendants giving him menial job assignments, isolating him from his co-workers, and excluding from discussion and control of meaningful cases to which he had been assigned. In August of 2000, Defendants developed a plan to abolish Plaintiff's position in the Law Department. In November, 2000, Plaintiff was away from work for two weeks following the birth of a daughter. McNeil gave him difficulty regarding his leave, including having an audit of his leave usage conducted.

On December 22, 2000, Scaccia was informed that his position had been abolished. Plaintiff attempted to locate another position with the City of Dayton which was vacant and for which he was qualified, so that he could transfer to another position. Although positions existed, Defendants allegedly prevented Plaintiff's attempts to transfer. In particular, Defendant William Gillispie, Deputy City Manager, allegedly told Plaintiff that he would assist him in locating a new position with the City of Dayton, but failed to do so. On April 13, 2001, Plaintiff's employment with the City of Dayton was terminated.

Before and after his termination, Plaintiff contacted the Human Resources Department of the City of Dayton in an effort to ensure that his health and dental insurance coverage would continue. Although Defendants allegedly were required to contact Aurora Administrative Solutions (presumably, the insurance plan administrator) regarding his continued coverage, they failed to do so and, furthermore, they failed to notify Aurora Administrative Solutions that his family included a new infant and a five year old child who had received open-heart surgery.

On December 31, 2001, Plaintiff brought suit in the Montgomery County Court of Common Pleas against the City of Dayton; Lemmie; McNeil; Gillispie; Douglas "Dusty" Hall, Assistant City Manager; Thomas Biedenharn, Director of Public Affairs for the City of Dayton; Jeffery Woodson, Director of Management and Budget for the City of Dayton; Mayor Michael Turner; and Dayton City Commissioners Dean Lovelace, Idotha Bootsie Neal, and Mary Wiseman,⁶ setting forth twenty (20) claims for relief, to wit: (1) a state law claim for race discrimination, in violation of Ohio Rev.Code § 4112.02 (Count One); (2) a state law claim for sex discrimination, in violation of Ohio Rev. Code § 4112.02 (Count Two); (3) a state law claim for age discrimination, in violation of Ohio Rev.Code § 4112.02 (Count Three); (4) a state law claim for hostile work environment, due to race, age, and sex discrimination, in violation of Ohio Rev.Code § 4112.02 (Count Four); (5) a state common law claim for discrimination (Count Five); (6) state law claims for theft by deception, conversion of property, and fraud (Count Six); (7) a state law claim for intentional misrepresentation and fraud (Count Seven); (8) a state law claim for retaliation and discharge, in violation of public policy (Count Eight); (9) a state law claim for defamation (Count Nine); (10) a state law claim for tortious interference with business or professional relations, future or prospective employment, and economic opportunities (Count Ten); (11) a state law claim for intentional infliction of emotional distress (Count Eleven); (12) a state law claim for civil conspiracy (Count Twelve); (13) a state law claim for negligent supervision and administration (Count Thirteen); (14) a state law claim for breach of contract (Count Fourteen); (15) a state law claim for equitable estoppel (Count Fifteen); (16) a state law claim for promissory estoppel (Count Seventeen); (17) a state law claim for negligent misrepresentation (Count Eighteen); (18) a state law claim for breach of the duty of good faith and fair dealing/bad faith contract (Count Nineteen); (19) a state law claim, brought by Plaintiff and Cynthia Scaccia, for loss of consortium (Count Twenty); and (20) a state law claim for punitive damages (Count Twenty-One).⁷ On January 31, 2002, Defendants removed the action to this Court, alleging that this Court has federal question subject matter jurisdiction.

Pending before the Court is Plaintiff's Motion for Expedited Remand (Doc. # 2).⁸ For the reasons assigned, Plaintiff's Motion is SUSTAINED.

I. Plaintiff's Motion for Remand (Doc. # 6)

The party seeking to litigate in federal court bears the burden of establishing the existence of federal subject matter jurisdiction. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). This is no less true where, as here, it is the defendants, rather than the plaintiff, who seeks the federal forum. E.g., Ahearn v. Charter Twp. of Bloomfield, 100 F.3d 451, 453-54 (6th Cir.1996). When the party asserting federal jurisdiction finds its allegations challenged, it must submit evidence substantiating its claims. Amen v. City of Dearborn, 532 F.2d 554, 560 (6th Cir.1976). The removing defendants' burden is to prove, by a preponderance of the evidence, that the jurisdictional facts they allege are true. Gafford v. General Electric Co., 997 F.2d 150, 158 (6th Cir.1993). The district court has "wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts." Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990) (citations omitted). The court may consider such evidence without turning the motion into one for summary judgment. Id.

In his Motion for Remand, Plaintiff asserts that the present action must be remanded to the Montgomery County Court of Common Pleas on two grounds. First, Plaintiff asserts that not all of the Defendants have joined in the removal. Second, he argues that he has not asserted any federal claim in his Complaint. Plaintiff further argues, in the alternative, that if a federal question does exist, the action should be remanded, pursuant to 28 U.S.C. § 1367(c), because state law predominates over any federal question.

In their Notice of Removal, Defendants assert, without any specific factual allegations, that the Court has original jurisdiction under 28 U.S.C. § 1331. In their Opposition Memorandum (Doc. # 9), they assert that the references to federal law in the...