Smith v. Five Rivers MetroParks

• Decision Date: 17 September 1999
• Docket Number: No. 17744.,17744.
• Citation: 134 Ohio App.3d 754,732 NE 2d 422
• Parties: SMITH, Appellant, v. FIVE RIVERS METROPARKS et al., Appellees.
• Court: Ohio Court of Appeals

134 Ohio App.3d 754

732 NE 2d 422

SMITH, Appellant, v. FIVE RIVERS METROPARKS et al., Appellees.

No. 17744.

Court of Appeals of Ohio, Second District, Montgomery County.

Decided September 17, 1999.

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Aaron G. Durden, for appellant.

Peter K. Newman and Stephen Richey, for appellees.

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FAIN, Judge.

Plaintiff-appellant, Christopher Smith, appeals from a summary judgment rendered against him, and in favor of defendants-appellees, Five Rivers MetroParks and Captain Larry Jones, with respect to Smith's complaint, charging MetroParks and Jones with race discrimination, pursuant to Title VII of the Civil Rights Act of 1964 and R.C. 4112.99, and with violating his equal protection, and substantive and procedural due process rights, pursuant to Section 1983, Title 42, U.S.Code. Smith argues that the trial court erred in granting appellees' motion for summary judgment, because genuine issues of material fact remain to be litigated, including whether the reason given for his termination—that he had been dishonest with MetroParks about his outside employment—was merely a pretext for unlawful discrimination.

We conclude that the trial court correctly granted summary judgment to MetroParks on Smith's procedural due-process claim, since the post-termination proceedings conducted in front of an arbitrator were sufficient to cure any deficiencies in the notice of the charges that MetroParks provided to Smith. However, we conclude that the trial court did err in granting MetroParks summary judgment with respect to the remainder of Smith's claims, since a triable issue of fact exists regarding whether MetroPark's stated justification for terminating Smith was merely a pretext for unlawful discrimination. Accordingly, the judgment of the trial court is affirmed with respect to Smith's procedural due process claim, but reversed with respect to the remainder of Smith's claims, and this cause is remanded for further proceedings consistent with this opinion.

I

Five Rivers MetroParks operates eleven park facilities, located primarily in Montgomery County. Smith, who is black, began working at MetroParks in 1983, as a park ranger. In early 1996, Smith filed a complaint with the Ohio Civil Rights Commission, charging MetroParks with discrimination for failing to promote him and provide him with equal pay. MetroParks settled the matter out of court by agreeing to promote Smith to the rank of lieutenant, which MetroParks did in May 1996.

In February 1997, one of Smith's subordinates, Park Ranger Tina Clanin, filed a complaint with MetroParks, accusing Smith of sexual harassment and supervisor misconduct. As part of her accusation that Smith had engaged in supervisor misconduct, Clanin alleged that Smith had threatened her for repeating information he had shared with her, regarding his outside, part-time employment with a local television station, WHIO, and a local radio station, WROU.

As a result of Clanin's complaint, MetroPark's Human Resources Director, Kathy Flynn, conducted an investigation into the charges leveled at Smith. On March 4, 1997, Flynn sent Smith a notice, informing him that he was required to attend a pre-disciplinary hearing scheduled for March 7, 1997, to discuss the charges of sexual harassment and supervisor misconduct. Smith was placed on immediate suspension, with pay, pending the results of the investigation.

At the March 7th hearing, Flynn questioned Smith about the sexual harassment and supervisor misconduct charges. During Flynn's questioning of Smith, the subject of Smith's outside employment came up. Flynn asked Smith if he currently had any outside employment, aside from the free-lance disc jockey job about which he had already informed MetroParks. According to Flynn, Smith denied having any other outside employment, but did acknowledge that he had been volunteering at certain places, and was in training for potential positions; Smith stated that while those positions were currently available to him, he had not accepted them. When Flynn asked Smith if he was currently employed at WHIO and WROU, Smith, according to Flynn, replied "no."

After the hearing, Flynn contacted WHIO and WROU, and learned that Smith had been a part-time, paid employee at WHIO since December 12, 1996, and a part-time, paid employee at WROU since March 1, 1997. Flynn relayed this information to Park Ranger Captain Larry Jones. Upon determining that Smith's dishonesty regarding his outside employment warranted termination, Jones and Flynn recommended to MetroPark's Executive Director Marvin Olinsky that Smith be discharged. Olinsky approved their recommendation.

On March 18, 1997, Jones and Flynn met with Smith to inform him of the results of their investigation. Jones and Flynn told Smith that they could not prove that he had sexually harassed Clanin, left work early without permission, or falsified logs, since it was "other people's word against his." However, Jones and Flynn informed Smith that they had contacted WHIO and WROU, and found out that he was, in fact, employed by them. Flynn told Smith that she believed that he had lied to her about not having any outside employment, and further informed him that MetroParks considered his dishonesty regarding his outside employment to be a very serious offense. Flynn then gave Smith a choice between resigning or being fired. Smith was fired after declining to resign.

Smith filed a grievance. After a two-day hearing, the arbitrator denied Smith's grievance, upon finding that Smith had been afforded fair notice and an opportunity to be heard on the charges brought against him, and that he had been terminated for just cause.

On July 9, 1998, Smith filed a verified complaint in the Montgomery County Court of Common Pleas, charging MetroParks and Jones with race discrimination pursuant to Title VII and R.C. 4112.99, and with violating his equal protection, and substantive and procedural due process rights, pursuant to Section 1983, Title 42, U.S.Code. MetroParks and Jones subsequently moved for summary judgment, and Smith filed a response thereto. On April 6, 1999, the trial court rendered summary judgment in favor of MetroParks and Jones with respect to all counts of Smith's Verified Complaint.

Smith appeals from the summary judgment rendered in MetroPark's favor.

II

Smith's First and Second Assignments of Error state:

"I. Whether the trial sic erred when it issued an order of summary judgment when there remains a genuine issue of material fact on appellant's claim of discrimination.

"II. The trial court erred when it entered summary judgment against plaintiff, although a viable claim sic race discrimination exists."

A trial court may grant a moving party summary judgment pursuant to Civ.R. 56 if there are no genuine issues of material fact remaining to be litigated, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46. The moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element or elements of the nonmoving party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 273-274. The moving party cannot discharge this burden by making conclusory assertions that the nonmoving party has no evidence to prove his case. Id. Instead, the moving party must point to some evidence of the type listed in Civ.R. 56(C)—the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any—that affirmatively demonstrates that the nonmoving party has no evidence to support his claims. Id. If the moving party satisfies its initial burden, then the nonmoving party has a reciprocal burden pursuant to Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial; if the nonmoving party does not so respond, then summary judgment, if appropriate, must be entered against it. Dresher, supra.

Smith argues that the trial court erred by rendering summary judgment in MetroPark's favor with respect to his race discrimination and Section 1983, Title 42, U.S.Code claims because he presented sufficient evidence to permit reasonable minds to conclude that MetroParks used his alleged dishonesty regarding his outside employment as a pretext for unlawful discrimination.

In order to prevail on a race discrimination claim brought pursuant to Title VII or R.C. 4112.99, a plaintiff must make a prima facie showing that he: (1) belongs to a racial minority, (2) was discharged, (3) was qualified for the position, and (4) was replaced by, or his discharge permitted the retention of, a person who was not a member of the protected class. See Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 197, 20 O.O.3d 200, 203, 421 N.E.2d 128, 131-132. If the plaintiff establishes a prima facie case, the burden shifts to the defendant to show a legitimate, nondiscriminatory reason for the employee's discharge. Id. If the defendant makes this showing, the burden shifts once more to the plaintiff to demonstrate that the defendant's articulated reasons for the discharge were merely a pretext for impermissible racial discrimination. Id. at 198, 20 O.O.3d at 203-204, 421 N.E.2d at 132.

Here, Smith unquestionably has met the first two elements of a prima facie showing, since he is black, and he was discharged. MetroParks argues, however, that Smith cannot...