The State Of Ohio Ex Rel. Conroy v. Williams

Decision Date13 November 2009
Docket NumberNo. 08 MA 60.,08 MA 60.
Citation923 N.E.2d 191,2009 Ohio 6040,185 Ohio App.3d 69
PartiesThe STATE of Ohio ex rel. CONROY, Appellee, v. WILLIAMS, Mayor, et al., Appellants
CourtOhio Court of Appeals

[2009 Ohio 192]

Green, Haines, Sgambati Co., L.P.A., Dennis Haines, Joseph Kondela, and Charles W. Oldfield, Youngstown, for appellee.

Harrington, Hoppe & Mitchell, Ltd., Neil D. Schor, and Matthew D. Gurbach, Youngstown, for appellant.

WAITE, Judge.

{¶ 1} Appellants, George M. McKel-vey, Jay Williams, George Wallace Jr., Nancy Tipple, Dorothy Johnson, and the city of Youngstown, appeal the judgment entry of the Mahoning County Court of Common Pleas denying the individual appellants' motion for summary judgment on the basis of political-subdivision immunity.

[2009 Ohio 193]

{¶ 2} Because if the allegations are true McKelvey's actions may constitute discrimination in violation of Ohio statutory law, the trial court did not err when it denied McKelvey's motion for summary judgment on the basis of sovereign immunity. On the other hand, appellee, James Conroy, has not produced nor even alleged any evidence of discriminatory or other conduct on the part of Williams, and, therefore, the trial court erred in denying his motion for summary judgment on the basis of sovereign immunity. Finally, the trial court did not err in denying sovereign immunity to Wallace, Tipple, and Johnson, because appellee is not seeking to hold them personally liable for his alleged damages. Their motion for summary judgment on the basis of sovereign immunity should have been denied as moot. The judgment of the trial court is affirmed in part, with respect to Williams and reversed in part with respect to McKelvey, Wallace, Tipple, and Johnson. Because the city raises political-subdivision immunity for the first time on appeal as regards the city itself as a party, we decline to consider the issue as to that named appellant.

{¶ 3} Appellee filed this mandamus action on October 20, 2005, seeking to compel McKelvey, then Mayor of Youngstown, and the city to appoint him to the position of police officer in accordance with the "rule-of-ten provision" set forth in R.C. 124.27. On March 13, 2006, appellee amended his complaint to add reverse discrimination claims against McKelvey and the city premised on R.C. 4112.02(A), Ohio public policy, and Section 1983, Chapter 42, U.S.Code. The amended complaint also added Williams, the current Mayor of Youngstown, and the three individuals appointed by McKelvey to police-officer positions as defendants. It is important to note that there are no allegations involving Williams as to the claims of discrimination.

{¶ 4} A brief review of the facts is instructive. On August 23, 2003, Youngstown City Council passed Ordinance 03-213, adopting R.C. 124.90 as part of Police Officer Civil Service Entrance Exam No. 1744. R.C. 124.90 permits a municipality to waive, suspend, or alter any of the provisions of R.C. Chapter 124, "if such waiver, suspension, or alteration is necessary for the municipal corporation to comply with any federal law or any rules adopted pursuant to federal law concerning discrimination in employment."

{¶ 5} Ordinance 03-213 suspended the application of the rule-of-ten provision codified in R.C. 124.27 for the purposes of Exam No. 1744. According to appellee, "[a]ppellants failed to establish cause to suspend application of R.C. 124.27 because the record contains no evidence that suspension of R.C. 124.27 was necessary to comply with a federal law or rule adopted pursuant to federal law as required by R.C. 124.90."

{¶ 6} The Youngstown Civil Service Commission issued two certified examination result lists for Exam No. 1744 on January 24, 2005: a majority list and a minority/females list. Appellee achieved the fourth highest score on the majority list, and the fifth highest score if the two lists were combined.

{¶ 7} In June of 2005, McKelvey appointed three individuals from the minority/female list to fill vacant officer positions: Wallace, a black male, who placed second on the minority/female list and seventh if the two lists were combined; Tipple, a while female, who placed third on the minority/female list and ninth if the two lists were combined; and Johnson, a black female, who placed nineteenth on the minority/female list. The original complaint in this matter was filed approximately four months later.

[2009 Ohio 194]

{¶ 8} On July 2, 2007, appellants filed a motion for summary judgment on all four of the claims asserted in the amended complaint. In the alternative, the individual appellants moved for summary judgment on the state-law claims based upon R.C. Chapter 2744. On February 6, 2008, the trial court summarily denied the motion in its entirety. This timely appeal followed.

{¶ 9} "When a trial court denies a motion in which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged immunity and is therefore a final, appealable order pursuant to R.C. 2744.02(C)." Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, syllabus.

{¶ 10} An appellate court conducts a de novo review of a trial court's decision to grant summary judgment, using the same standards as the trial court as set forth in Civ.R. 56(C). Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Before summary judgment can be granted, the trial court must determine that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most favorably in favor of the party against whom the motion for summary judgment is made, the conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 0.0.3d 466, 364 N.E.2d 267. When a court considers a motion for summary judgment the facts must be taken in the light most favorable to the nonmoving party. Id.

{¶ 11} "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." (Emphasis sic.) Dresher v. Burt (1996), 75 Ohio St.3d 280, 296, 662 N.E.2d 264. If the moving party carries its burden, the nonmoving party has the reciprocal burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at 293, 662 N.E.2d 264. In other words, in the face of a properly supported motion for summary judgment, the nonmoving party must produce some evidence that suggests that a reasonable fact-finder could rule in that party's favor. Brewer v. Cleveland, Bd. of Edn. (1997), 122 Ohio App.3d 378, 386, 701 N.E.2d 1023.

CLAIMED ASSIGNMENT OF ERROR NO. 1

{¶ 12} "The trial court erred in denying summary judgment to appellants mayor Jay Williams, former Mayor George M. McKelvey, George Wallace, Nancy Tipple, and Dorothy Johnson pursuant to O.R.C. § 2744 et seq."

{¶ 13} We must, at the outset, clarify that the sole issue properly before us is whether, based on R.C. Chapter 2744, the five named persons in this action are immune from suit. Because of the way that this matter has been presented, this is a more complicated task than it appears. This suit involves a mandamus action by an applicant for city employment who alleges that he was denied employment because of reverse discrimination on the part of the city officials. However, this matter involves an appointment to the civil service. Appellee alleges, essentially, that the city illegally certified a list that gave preferential treatment to minorities and women and that had this preference not been incorrectly given, he would have been hired. In mandamus, a complainant must

[2009 Ohio 195]

show a clear legal duty on the part of the government, a clear right to the requested relief, and that the complainant has no other legal means of recourse. State ex rel Grosso v. Boardman Local School Dist., 7th Dist. No. 08MA105, 2009-Ohio-5080, 2009 WL 3068755. Thus, in his original complaint, appellee must show that the city had a legal duty to hire him, he has a clear right to the appointment as police officer, and he lacks other redress. Layered on top of this original action is appellee's claim that the reason he did not get appointed was that the city acted in a discriminatory manner.

{¶ 14} While appellants apparently requested relief in the form of summary judgment on the underlying mandamus claims, both these and the request for summary judgment based on sovereign immunity were denied. While we are here to address only the denial of the immunity claims, because by statute these are the only claims immediately appealable, the issues in this case are so intertwined that some discussion on all claims will be necessary.

{¶ 15} R.C. Chapter 2744 provides governmental immunity to political subdivisions and their employees. Specifically, R.C. 2744.02(A)(1) provides that "a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function."

{¶ 16} R.C. 2744.03(A)(7) preserves common-law immunity for political subdivisions and specific employees, including county prosecuting attorneys, city directors of law, village solicitors, or similar chief legal officers of a political subdivision, assistants to such persons, and judges of Ohio courts.

{¶ 17} More generally, employees of political subdivisions engaged in governmental or proprietary functions are immune from liability unless it can be shown that (a) an employee's acts or omissions were manifestly outside the scope of the employee's...

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