Wilkins v. Jakeway, C-2-93-1159.
| Decision Date | 22 January 1998 |
| Docket Number | No. C-2-93-1159.,C-2-93-1159. |
| Citation | 993 F.Supp. 635 |
| Parties | Terry J. WILKINS, Plaintiff, v. Donald E. JAKEWAY, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Alexander Morris Spater, Spater, Gittes, Schulte & Kolman, Columbus, OH, for Plaintiff.
Pamela J Gordon, Ohio Atty. Gen., Columbus, OH, for defendants.
This matter is before the Court on Defendants' motion for summary judgment. Plaintiff, Terry J. Wilkins, claims that Defendants, Donald E. Jakeway, Director of the Ohio Department of Development ("ODOD"), Vincent Lombardi, Assistant Director of ODOD, and Roberta Garber, Deputy Director of the Community Development Division of ODOD, improperly terminated Plaintiff. Specifically, Plaintiff claims Defendants terminated him for reporting to his supervisors and the Ohio Inspector General both the misuse of state and federal funds and "the violation of laws and policies by community action agencies and state employees' involvement in and knowledge of such violations." (Doc. # 10 at ¶ 14.) Plaintiff brings his claim pursuant to 42 U.S.C. § 1983 and the First and Fourteenth Amendments. Defendants move for summary judgment on Plaintiff's claims asserting that these claims are barred under claim preclusion. Further, Defendants assert that Plaintiff fails to make out a claim under the First Amendment. For the reasons set forth below, the Court GRANTS Defendants' motion. The Court finds that Plaintiff's case is barred by the doctrine of claim preclusion. Thus, the Court need not consider Defendants' arguments with respect to the First Amendment. The Court finds that a decision reached in another case in this Court, Wilkins ex rel. United States v. Ohio, No. C-2-94-720, slip op. (S.D. Ohio filed Feb. 4, 1997), bars Plaintiff from bringing this case because this case involves a claim that should have been raised in that action. Consequently, summary judgment is appropriate.
Plaintiff, Terry J. Wilkins, was formerly employed by the Ohio Department of Development as the chief of the Office of Community Services ("OCS").
Defendant, Donald E. Jakeway, is the Director of ODOD. Defendant, Vincent Lombardi, is the Assistant Director of ODOD. ODOD is required under Ohio law to ensure that state resources are being properly used. ODOD also assists local governments and community organizations. Specifically, ODOD may apply for federal funding and administer this funding to various local governmental agencies or private organizations. ODOD contains several divisions and offices established to provide assistance to local communities.
The Community Development Division ("CDD"), one such division of ODOD, was run at the time in question by Defendant, Roberta Garber, the deputy director of CDD. Garber reported to Jakeway through Lombardi.
OCS, as an office within CDD, is responsible for monitoring agencies receiving federal and state funding for the needy. Plaintiff's job, in part, entailed ensuring that these agencies complied with applicable state and federal regulations governing the receipt of funds. One of OCS's major responsibilities involves administering federal funding obtained from the United States Department of Health and Human Services ("HHS") under the Community Services Block Grant Act. See 42 U.S.C. § 9901 (1996). OCS also designates community action agencies ("CAAs") to receive Community Service Block Grant ("CSBG") funds. CAAs are community-based and operated private nonprofit agencies or organizations providing a range of services that impact poverty. In addition, OCS provides technical assistance to CAAs to improve program planning, development and administration; conducts yearly performance assessments of CAAs; prepares an annual report to be submitted to HHS; and serves as a statewide advocate for social and economic opportunities for low-income persons.
ODOD also has an audit office that provides services to all of ODOD's various divisions and offices. The Audit Office devotes most of its efforts towards auditing CAAs and other subgrantees that receive funding through the various state and federal grant programs administered by ODOD's divisions.
The Audit Office conducts grant audits of CAAs. A grant audit looks at the expenditure of grant funds received from ODOD by CAAs but does not address the overall financial condition of the CAA or examine how the CAA spends funds other than the grant funds received from ODOD. Prior to 1990, the Audit Office generally audited each CAA once every two years. This audit, which featured a field inspection as well as an office review afterwards, included an inspection of the CAA's internal control system and other types of reviews of the CAA to ensure that the CAA was functioning properly.
After January 1990, federal law required CAAs to obtain an annual "single agency" audit by a private independent auditor. These single agency audits examined the entire operations of a CAA rather than focusing on the CAA's use of funds from a particular grant. After January 1990, the Audit Office would review these single agency audits. However, the Audit Office concentrated its attention on risky CAAs and would not audit a CAA unless the single agency audit revealed a problem.
In 1990 and 1991, Plaintiff became concerned with the performance of the ODOD Audit Office and frequently criticized Melanie Buller, who headed that office. Plaintiff and Buller disagreed over the Audit Office's responsibilities. Plaintiff felt that the Audit Office was not doing an adequate job for OCS, and Buller thought that Plaintiff was trying to monopolize the services of the Audit Office at the expense of other ODOD offices served by the Audit Office.
Plaintiff's frequent criticism apparently drew the ire of his supervisor defendant Garber. Plaintiff claims that Garber accused him of not being a team player. Further, Plaintiff claims that Garber told him not to discuss Audit Office problems in front of the new ODOD officers, including defendants Jakeway and Lombardi who came to ODOD after Governor Voinovich took office.
Plaintiff and Garber began to clash over Plaintiff's actions at work. Garber eventually held a counseling session with Plaintiff. During the session, Garber criticized Plaintiff's attitude at work.
Around this time, ODOD audits of various CAAs uncovered various problems in funding. One of the most serious problems was discovered in the management of the Lima-Allen County Community Action Committee ("LACAC"). From 1987 to 1991, grant audits by the Audit Office revealed questioned costs and irregularities in LACAC's record keeping practices and fiscal management systems; the audits (and program reviews by OCS), however, failed to disclose any significant problem with the expenditure of CSBG funds. Even Plaintiff, the head of the office in charge of monitoring the use of the block grant funds to LACAC, failed to suspect that LACAC was in financial trouble or that corrective action was warranted. In July 1991, a single agency audit disclosed that LACAC operated at a deficit. Further investigation uncovered that the agency had a deficit of funds for other federal grants; all of the funds for CSBG were, however, accounted for. Soon afterwards, funding was terminated and the agency was closed.
The audits also showed that LACAC had been passing funds back and forth from Level One, a separate corporation formed by LACAC in 1983 to buy and rehabilitate housing to rent or sell to low-income families. LACAC purchased homes on a land contract, sold them to Level One, and leased the homes back from Level One. This property then reverted to the original owner when LACAC and Level One defaulted on the payments. Four other homes were mortgaged through bank loans.
In April 1992, at a CDD meeting, Plaintiff voiced his concerns that another CAA that was in trouble. Plaintiff also loudly complained about the Audit Office's performance; he further stated that he wanted to discuss the Audit Office's problems with LACAC. Garber eventually told Plaintiff to stop talking about these items. Plaintiff later claimed that he was told not to complain about the Audit Office because Melanie Buller, head of the Audit Office, might lose her job.
In 1992, Plaintiff received a generally positive work evaluation from Garber. The evaluation did contain a few criticisms that Plaintiff disagreed with. Plaintiff sent a memo to Assistant Director Lombardi attempting to explain Plaintiff's views and to explain why the criticisms were unfair. In response, Lombardi contacted Garber and suggested Garber write a memo to Director Jakeway describing Plaintiff's performance.
Garber's subsequent memo recommended that Plaintiff be terminated because of what Garber considered to be Plaintiff's inappropriate behavior. Garber noted that she could no longer trust Plaintiff to handle sensitive issues in a responsible manner. Lombardi supported Garber's recommendation that Plaintiff be terminated. Kathy McNeal, ODOD's human resource officer, testified that she opposed this recommendation and that Jakeway also opposed it initially. Jakeway, however, testified that he did not speak to McNeal about the memo.
In June 1992, Lombardi discussed with Jakeway the problems that had occurred at LACAC. Jakeway questioned why the problems at LACAC had gone unnoticed and uncorrected for so long, and decided to refer the matter to the Ohio Inspector General. The Ohio Inspector General then began an investigation into the problems at LACAC. Although Defendants have presented evidence that Jakeway initiated this investigation in June 1992, Plaintiff claims the investigation began in July after he complained to members of Jakeway's staff about the Audit Office.
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