Townsend v. City of Kettering

• Decision Date: 05 August 2022
• Docket Number: 29376
• Citation: 194 N.E.3d 457
• Parties: Darrin TOWNSEND, Plaintiff-Appellee v. City of KETTERING, et al., Defendants-Appellants
• Court: Ohio Court of Appeals

194 N.E.3d 457

Darrin TOWNSEND, Plaintiff-Appellee
v.
City of KETTERING, et al., Defendants-Appellants

No. 29376

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

Rendered on August 5, 2022

JOHN R. FOLKERTH, JR., Atty. Reg. No. 0016366, 3033 Kettering Boulevard, Point West II, Suite 111, Dayton, Ohio 45439, Attorney for Plaintiff-Appellee.

DAWN M. FRICK, Atty. Reg. No. 0069068 & JAMES M. SCHIRMER, Atty. Reg. No. 0101271, 8163 Old Yankee Street, Suite C, Dayton, Ohio 45458, Attorneys for Defendants-Appellants.

OPINION

EPLEY, J.

{¶ 1} Fire Chief Thomas Butts and Assistant Chief Michael Miller appeal from a judgment of the Montgomery County Court of Common Pleas, which denied their motion for summary judgment on Darrin Townsend's race discrimination and retaliation claims on sovereign immunity grounds. For the following reasons, the trial court's judgment will be affirmed.

I. Facts and Procedural History

{¶ 2} Townsend, an African-American, has been employed by the Kettering Fire Department (KFD) as a firefighter/paramedic since 2003. In 2016, KFD had a fire

194 N.E.3d 461

captain vacancy. Seven Kettering firefighters, including Townsend, applied for the position. The candidates were ranked based on their cumulative score on five weighted components: (1) a written examination; (2) an assessment center score; (3) administrative review (AR) points; (4) seniority points; and (5) annual performance evaluation (APE) points. The written examination and assessment center evaluation were administered by individuals independent of KFD, and Townsend agrees that KFD had no control over those components, which were worth a possible maximum of 100 points. The APE score, worth up to 10 points, was based on past performance evaluations, and the AR score, worth up to 20 points, was assigned by the fire chief based on "information from the administrative review process, oral boards, [the chief's] own review of evaluations and his personal knowledge of the candidates[.]"

{¶ 3} Based on the candidate's total scores, Townsend ranked second on the 2016 captain vacancy promotion list, behind Shawn Morgan, who is Caucasian.

Name	Written Exam (40%)	A.C. (60%)	Weighted Combined (Max 100)	A.R.Score (Max 20)	Seniority (Max 10)	APE (Max 10)	Total (Max 140)	Rank
Morgan	82.58	86.5	84.932	14.222	10	8	117.154	1
Townsend	80.65	95.2	89.38	11.000	9.4	6	115.78	2
E.H.	82.58	86.0	84.632	18.000	6.1	7	115.732	3
M.D.	91.61	80.0	84.644	15.888	6.4	6	112.932	4
J.M.	71.61	82.5	78.144	13.333	10	7	108.477	5
J.W.	84.52	79.5	81.508	14.111	6.7	6	108.319	6
K.H.	80.65	78	79.06	13.222	6.4	6	14.682	7

In accordance with KFD policy, Chief Butts interviewed the three highest-scoring candidates on the promotion list, and he had the discretion to choose from among those individuals which candidate to promote. Butts selected Morgan, who was ranked number one on the list, for promotion to captain.

{¶ 4} According to Townsend, Chief Butts, Assistant Chief Miller, and the City (collectively, "the Kettering Defendants") discriminated against him by underrating his performance on his annual performance evaluations and by preventing him from participating in projects to reduce his chances of promotion. He asserts that when he applied for promotion to the vacant captain position in 2016, the Kettering Defendants "fabricated performance issues against him to demonstrate that he was unfit for command and to justify their decision to give him a low Administrative Review score." Memo in Opp. to Summary Judgment ("Memo in Opp."), p. 1.

{¶ 5} Following the selection of Morgan for promotion, Townsend filed a complaint with the Ohio Civil Rights Commission, claiming race discrimination in the promotion process. Townsend asserts that the Kettering Defendants subsequently retaliated against him "by including fabricated performance deficiencies in his 2016 annual performance evaluation * * * based upon racial stereotypes to punish and humiliate him for filing the OCRC." Memo in Opp. p. 2.) When three more captain vacancies arose in 2017, KFD promoted Townsend and two others to captain. Townsend maintains that his 2017 promotion was an effort by the Kettering

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Defendants to conceal their prior unlawful discrimination and retaliation against him. Memo in Opp., p. 2. He emphasizes that the Kettering Defendants had previously evaluated him to be unfit for command, and there had been no changes in his performance between 2016 and 2017.

{¶ 6} The Kettering Defendants dispute that they engaged in discriminatory and retaliatory conduct in the promotion process; they assert that they followed the KFD policy.

{¶ 7} On June 21, 2019, Townsend brought suit under R.C. Chapter 4112 against Butts, Miller, and the City of Kettering, alleging "discrimination based on denial of training, project and overtime opportunities and failure to promote because of race, and reprisal for EEO activity." Complaint ¶¶ 1, 5. The gravamen of his complaint was that the City racially discriminated against him by not promoting him to a fire captain position in 2016. Townsend alleged that Butts and Miller aided and abetted the City in its discriminatory and retaliatory conduct and that all defendants acted "intentionally, recklessly and maliciously."

{¶ 8} The Kettering Defendants moved for summary judgment, claiming that Townsend's discrimination and retaliation claims failed as a matter of law. Butts and Miller further asserted that they were entitled to immunity under R.C. 2744.03(A)(6). They argued that (1) they were acting within the scope of their employment, (2) there was no evidence that they acted maliciously or recklessly, and (3) the Revised Code did not expressly impose liability on them as aiders and abettors, because their actions were not unlawful. The Kettering Defendants supported their motion with the transcript of Townsend's deposition and Butts's affidavit. After the trial court granted him additional time for discovery pursuant to Civ.R. 56(F), Townsend opposed the motion, supported by his own affidavit, the affidavit of former KFD firefighter/paramedic April Stapleton, several deposition transcripts, and additional documentation. The Kettering Defendants filed a reply memorandum.

{¶ 9} On January 7, 2022, the trial court overruled the summary judgment motion in its entirety, concluding that genuine issues of material fact precluded summary judgment in the Kettering Defendants’ favor on the discrimination and retaliation claims. The trial court further denied Butts's and Miller's assertion of sovereign immunity, finding that two statutory exceptions to immunity applied. As to the first exception to immunity, the court reasoned: "Given that this Court finds that there is a genuine issue of material fact as to whether Defendants discriminated or retaliated against Townsend and it is unlawful for an employer to require its employees to participate in illegal acts, Defendants cannot logically claim that the alleged discrimination and retaliation is within the scope of their employment." As to the second exception, the court held:

Second, while Defendants argue that discrimination and retaliation do not rise to the level of "acts or omissions made with malicious purpose, in bad faith, or in a wanton or reckless manner," this Court notes that other Ohio Appellate Courts disagree. See Holmes v. Cuyahoga [Community] College , 8th Dist., 2021-Ohio-687, 169 N.E.3d 8, ¶¶ 42-47 (holding that when racial discrimination and retaliation is disputed, it is appropriate to defer a finding of immunity for an employee of a political subdivision because such actions may later qualify as an exception to immunity); see also Defs.’ Motion , at pp. 18-19. Consequently, pending a jury determination on the

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discrimination and retaliation claims, the two exceptions specified under R.C. 2744.03(A)(6) may remove Defendants’ immunity.

Summary Judgment Decision, pp. 13-14. The trial court did not address whether a statute imposed liability on Butts and Miller.

{¶ 10} Butts and Miller appeal from the trial court's denial of summary judgment on their claim of immunity.

II. Scope of Appeal

{¶ 11} "The general rules regarding final appealable orders in multiparty and/or multiclaim cases involve the tandem of R.C. 2505.02(B) for substance and Civ.R. 54(B) for procedure. A court first applies R.C. 2505.02(B) to determine whether the order ‘affects a substantial right and whether it in effect determines an action and prevents a judgment.’ If the court of appeals determines that the trial court order is final under R.C. 2505.02, the next step is to determine whether the trial court certified the order with the language of Civ.R. 54(B) —‘there is no just reason for delay.’ The use of Civ.R. 54(B) certification by a trial court is discretionary." (Citations omitted.) Sullivan v. Anderson Twp. , 122 Ohio St.3d 83, 2009-Ohio-1971, 909 N.E.2d 88, ¶ 10.

{¶ 12} "The denial of summary judgment generally is not a final, appealable order." Summerville v. Forest Park , 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 11. In this case, the trial court's decision denying summary judgment on the merits of Townsend's discrimination and retaliation claims was not a final appealable order, as those claims have not been reduced to judgment. See Coterel v. Reed , 2016-Ohio-7411, 72 N.E.3d 1159, ¶ 8 (2d Dist.).

{¶ 13} However, R.C. 2744.02(C) provides that "[a]n order that denies a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order." A summary judgment ruling that denies a claim of alleged immunity is a final appealable order under R.C. 2744.02(C). Hubbell v. Xenia , 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, syllabus. Such a ruling is immediately appealable even without certification under Civ.R. 54(B) that "there is no just cause for delay." Sullivan at syllabus. Chief Butts's and Assistant Chief Miller's appeal from the denial of their motion for summary...