Ste. Marie v. City of Dayton, No. C-3-99-513.

• Decision Date: 24 July 2000
• Docket Number: No. C-3-99-513.
• Parties: Thomas C. STE. MARIE, Plaintiff-Relator, v. CITY OF DAYTON, Defendant-Respondent.
• Court: U.S. District Court — Southern District of Ohio

109 F.Supp.2d 846

Thomas C. STE. MARIE, Plaintiff-Relator, v. CITY OF DAYTON, Defendant-Respondent.

No. C-3-99-513.

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

July 24, 2000.

Dwight Brannon, Dayton, OH, for Plaintiff.

Rita McNeil, John Danish, Dayton, OH, for Defendant.

DECISION AND ENTRY OVERRULING DEFENDANT'S MOTION TO DISMISS (DOC. # 5); LEAVE GIVEN TO PLAINTIFF TO FILE MOTION ADDRESSING SPECIFIC ISSUE WITHIN STATED PERIOD OF TIME

RICE, Chief Judge.

This litigation stems from the termination of Plaintiff Thomas C. Ste. Marie's employment as a police officer for Defendant City of Dayton. The City discharged the Plaintiff for unsatisfactory job performance after he wrecked a police cruiser and participated in an off-duty altercation with a motorist. (Complaint, Doc. # 1 at Exh. 1). In his Complaint, the Plaintiff alleges that the City violated 42 U.S.C. § 1983, by depriving him of a property interest in continued employment, without affording him due process of law. (Doc. # 1, Count I). In addition to compensatory damages, he seeks a writ of mandamus ordering the City to restore him to his former position. (Id. at Count II). He also seeks a declaratory judgment that a collective bargaining agreement between the City and his union, the Fraternal Order of Police, Lodge No. 44, is contrary to state and federal law, insofar as it purports to impose a nine-month probationary period on new police officers. (Id. at Count III). Finally, he seeks an award of reasonable attorney's fees that he incurred in pursuing this action. (Id. at Count IV). Pending before the Court is a Motion to Dismiss (Doc. # 5), pursuant to Fed. R.Civ.P. 12(b)(6), filed by the City.

I. Standard Governing Rule 12(b)(6) Motions

In considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), the Court must "construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Cline v. Rogers, 87 F.3d 176, 179 (6th Cir.1996) (citing In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993)); see also Barrett v. Harrington, 130 F.3d 246 (6th Cir.1997) ("In considering a motion to dismiss for failure to state a claim, the Court is required to take as true all factual allegations in the complaint."); Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1025 (6th Cir.1990), cert. denied, 498 U.S. 1086, 111 S.Ct. 961, 112 L.Ed.2d 1048 (1991). With the foregoing requirements in mind, the Court turns now to a review of the factual allegations set forth in the Plaintiff's Complaint.

II. Factual Background

The City operates under a "home rule" Charter adopted in accordance with the statutes of Ohio and Sections 8 and 9, Article XVIII, of the Ohio Constitution. (Doc. # 1 at ¶ 4). The Plaintiff was first employed by the City on February 9, 1998, as a police recruit. (Id. at ¶ 5). On July 3, 1998, he was appointed to the position of police officer, and he served in the classified civil service, as provided by the Dayton City Charter. (Id. at ¶ 6, 36). The Plaintiff subsequently received a "proficient" rating on a job evaluation which covered the period from July, 1998, through March, 1999. (Id. at ¶ 7). Nevertheless, the City discharged him on March 30, 1999, ostensibly as a "probationary" employee, for unsatisfactory job performance.¹ (Id. at ¶ 8, 10). In support of its decision, the City cited two incidents.² The first incident involved an accident in which the Plaintiff lost control of a police cruiser after his power steering failed. (Id. at ¶ 11-12). The second incident involved an off-duty altercation with an individual who had been menacing the Plaintiff and his family.³ (Id. at ¶ 13). During an investigation of both incidents, the Plaintiff was honest and open with representatives of the City. (Id. at ¶ 18). Although he had been working as a police officer for almost nine months at the time of his discharge, he was terminated without receiving an opportunity for a hearing or for a civil service appeal.⁴ (Id. at ¶ 23).

When the Plaintiff became a police officer on July 3, 1998, the City and the Fraternal Order of Police, Lodge No. 44, had no collective bargaining agreement because the prior agreement had expired on May 17, 1998.⁵ (Id. at ¶ 28). The City and the Fraternal Order of Police reached a new collective bargaining agreement in February, 1999, and established a retroactive effective date of May 18, 1998. (Id. at ¶ 29). Article II, Section 5 of the new collective bargaining agreement provides for a nine-month probationary period following an individual's appointment to the position of police officer.⁶ (Id. at ¶ 30). In relevant part, the agreement states that "[d]uring said probationary period, employees covered hereunder may be disciplined, reprimanded, suspended, terminated, or relieved of duty, without a showing of just cause.... Further, the terms and conditions arising out of Article 11, Discipline and Due Process, and Article 12, Grievance Procedure, with regard to disciplinary matters do not apply to probationary employees. All terms and conditions of this Agreement shall apply to probationary employees other than as set forth herein." (Id.).

In contrast to the collective bargaining agreement, Section 99 of the Dayton City Charter provides that "[a]n appointment or promotion shall not be deemed complete until a period of probation not to exceed six months has elapsed, and a probationer may be discharged or reduced at any time within the said period of six months, upon the recommendation of the head of the department in which said probationer is employed, with approval of the majority of the Board." (Id. at ¶ 24) (Emphasis added). Section 100 of the Dayton City Charter provides that "[a]n employee shall not be discharged or reduced in rank or compensation until he has been presented with reasons for such discharge or reduction, specifically stated in writing, and has been given an opportunity to be heard in his own defense. The reason for such discharge or reduction and any reply in writing thereto by such employee shall be filed with the Board." (Id. at ¶ 25). Finally, Section 101 of the Dayton City Charter provides that "[a]ny employee of any department in the city in the classified service who is suspended, reduced in rank, or dismissed from a department by the director of that department or the City Manager, may appeal from the decision of such officer to the Civil Service Board, and such Board shall define the manner, time, and place by which such appeal shall be heard. The judgment of such Board shall be final." (Id. at ¶ 26).

III. Analysis

The pending Motion to Dismiss presents a relatively straightforward issue. The City contends that the Plaintiff's Complaint fails to state a claim upon which relief may be granted because he was a probationary employee at the time of his termination. As a result, the City argues that he was subject to termination without cause, without any due process protection and without the ability to pursue a grievance. (Doc. # 5). In support, the City relies upon the foregoing collective bargaining agreement, which imposes a nine-month probationary period on new police officers and provides for their discharge without cause, without a right to due process and without resort to the grievance and arbitration process. While acknowledging that its Charter authorizes only a six-month probationary period, the City contends that, under Ohio law, the provisions of a collective bargaining agreement prevail over conflicting state and local laws and city charter provisions. See, e.g., Biddle v. City of Dayton, 48 Ohio App.3d 116, 548 N.E.2d 329 (2nd Dist.1988); Ohio Revised Code § 4117.10.

In response, the Plaintiff insists that the City deprived him of a protected property interest in continued employment, without affording him due process of law. The Plaintiff contends that he possessed such a property interest because he was a classified civil service employee and had completed his six-month term of probation at the time of his discharge. In support of this argument, the Plaintiff relies upon the Dayton City Charter, which, as noted above, authorizes only a six-month probationary period for newly appointed police officers, and which requires the City to provide non-probationary, classified civil service employees with notice and an opportunity to be heard prior to their termination, as well as access to the grievance and arbitration procedure. Although the Plaintiff does not dispute the City's assertion that a collective bargaining agreement may supersede state or local law or a city charter, he insists that the agreement does not do so in the present case. The Plaintiff bases this conclusion on his interpretation of Sutton v. Cleveland Board of Education, 958 F.2d 1339 (6th Cir.1992). He reads Sutton as establishing that the provisions of a collective bargaining agreement will not prevail over conflicting state statutes or charter provisions if the agreement does not provide for binding arbitration in all cases. Because the collective bargaining agreement between the City and the Fraternal Order of Police expressly precluded the Plaintiff from challenging his discharge through binding arbitration, he contends that it cannot supersede any aspect of the Dayton City Charter, including the six-month probationary provision. As a result, he insists that the six-month probationary term set forth in the Dayton City Charter applies to him, notwithstanding the nine-month period found in the collective bargaining agreement. Given that the City fired him almost nine months after he became a police officer, the Plaintiff argues that he was not a probationary employee at the time of his termination and, therefore, that he should...