Yanacos v. Lake County, Oh

• Decision Date: 23 December 1996
• Docket Number: No. 1:96 CV 304.,1:96 CV 304.
• Citation: 953 F.Supp. 187
• Parties: Christ YANACOS, Plaintiff, v. LAKE COUNTY, OHIO, et al., Defendant.
• Court: U.S. District Court — Northern District of Ohio

953 F.Supp. 187

Christ YANACOS, Plaintiff, v. LAKE COUNTY, OHIO, et al., Defendant.

No. 1:96 CV 304.

United States District Court, N.D. Ohio, Eastern Division.

December 23, 1996.

John P. Luskin, Cleveland, OH, for plaintiff.

William L. Sheroke, Painesville, OH, Stephen J. Forbes, Cleveland, OH, for defendants.

MEMORANDUM OF OPINION AND ORDER

NUGENT, District Judge.

This matter comes before the Court on Defendants' Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 and/or a Motion to Dismiss pursuant to FED.R.CIV.P. 12(b)(6) (Doc. # 8). For the following reasons stated below, Defendants' Motion for Summary Judgment and/or Motion to Dismiss is GRANTED.

Plaintiff, Christ Yanacos, a former employee of the Lake County Sheriff's Department, brings this action under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621; and, as a civil rights action under 42 U.S.C. § 1983. He also asserts a pendent state law claim under Article I, § 11 of the Constitution of the State of Ohio. The action charges the Lake County Sheriff's Department, Sheriff Daniel A. Dunlap, John Doe unknown Deputy Sheriff, and Lake County, (hereinafter collectively referred to as "Defendants") with Age Discrimination and deprivation of constitutional rights protected by the First Amendment in connection with his employment.

Defendant Lake County Sheriff's Department hired Christ Yanacos as an evidence manager in 1989. During 1989, as an evidence manager, he applied for and was promoted to the position of Civil Process Server and then Court Personnel Officer. These positions were approved and authorized by former Lake County Sheriff Patrick Walsh.

In early January 1993, Defendant Daniel A. Dunlap, the newly elected Sheriff of Lake County took office. After taking office, Sheriff Dunlap reassigned Mr. Yanacos from his Court Personnel Officer position to the position of a Road Patrol Deputy. This position required Mr. Yanacos to conduct traffic direction at motor vehicle accident scenes. Mr. Yanacos received no formal training on how to perform the duties of this position.

On February 16, 1993, shortly after Mr. Yanacos was reassigned to the position of Road Patrol Deputy, he was sent to investigate a serious truck accident on Interstate 90. Mr. Yanacos was conducting traffic direction when he was struck by a vehicle that was spinning out of control.

As a result of being reassigned to the position of Road Patrol Deputy, Mr. Yanacos filed an age discrimination charge with the EEOC on September 27, 1993. Mr. Yanacos claimed that he was removed from Court Services to Road Patrol Deputy on the basis of his age.

A year after Mr. Yanacos filed an Age Discrimination charge with the EEOC, he filed a Complaint in the Court of Common Pleas, Lake County, Ohio on November 2, 1994. In that Complaint, Mr. Yanacos alleged that Lake County Sheriff's Department and Sheriff Daniel A. Dunlap negligently failed to provide adequate training and assistance for the duties that Mr. Yanacos was ordered to perform.

The Lake County Court of Common Pleas dismissed Defendants, on May 30, 1995, because they were immune from liability based upon Ohio Revised Code § 4123.74.

A month after Lake County Court of Common Pleas dismissed Plaintiff's Complaint, the EEOC issued a right to sue letter to Plaintiff on June 30, 1995, finding that there was no basis for his Age Discrimination claim, but notifying him of his right to pursue his claim in federal court.

Mr. Yanacos filed a Complaint with this Court on February 12, 1996. In this Complaint Mr. Yanacos again raises an Age Discrimination in Employment Act (hereinafter "ADEA") claim based on his transfer to Road Patrol Deputy as well as a Section 1983 claim based on his belief that he was not properly trained for that position. In addition, Mr. Yanacos alleges that the purported failure of training was also the result of discrimination based upon his political affiliation, and that his rights as protected by the Ohio Constitution were violated.

Defendants filed a Motion for Summary Judgment and/or Motion to Dismiss. The basis of Defendants' argument is that the two year statute of limitation has run on Plaintiff's Section 1983 action. Further, Defendants argue that Plaintiff's ADEA claim is barred because Plaintiff failed to file his claim before the Court within ninety days of the date he received his right to sue letter from the EEOC. Additionally, Defendants move to dismiss the state law claims under Article I § 11 of the Constitution of the State of Ohio on the basis that this constitutional provision does not set forth a cause of action for a violation of such constitutional right.

LAW AND ARGUMENT

I. Summary Judgment Standard

Summary judgment is appropriate where the court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). The burden of showing the absence of any such "genuine issue" rests with the moving party:

[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact.

Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (citing FED.R.CIV.P. 56(c)). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. The court will view the summary judgment motion "in the light most favorable to the party opposing the motion." U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), see also U.S. v. Hodges X-Ray, Inc., 759 F.2d 557, 562 (6th Cir.1985).

Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir.1995) (citing Celotex, 477 U.S. at 322, 106 S.Ct. at 2552). Accordingly, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir.1995) (quoting Anderson, at 248-49, 106 S.Ct. at 2510-11 (1986)). Moreover, if the evidence presented is "merely colorable" and not "significantly probative," the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11 (citation omitted). In most civil cases involving summary judgment, the court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252, 106 S.Ct. at 2512. However, if the non-moving party faces a heightened burden of proof, such as clear and convincing evidence, it must show that it can produce evidence which, if believed, will meet the higher standard. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989).

Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmover. The nonmoving party may not simply rely on its pleadings, but must "produce evidence that results in a conflict of material fact to be solved by a jury." Cox v. Kentucky Department of Transportation, 53 F.3d 146, 149 (6th Cir.1995). The text of FED.R.CIV.P. 56(e) states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Id. The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as an automatic grant of summary judgment, where otherwise appropriate.

Though parties must produce evidence in support of and in opposition to a motion for summary judgment, not all types of evidence are permissible. The Sixth Circuit has concurred that, "`it is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.'" Wiley v. U.S., 20 F.3d 222 (6th Cir.1994) (quoting Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.1988)). FED.R.CIV.P. 56(e) also has certain, more specific requirements:

[it] requires that affidavits used for summary judgment purposes be made on the basis of personal knowledge, set forth admissible evidence, and show that the affiant is competent to testify. Rule 56(e) further requires the party to attach sworn or certified copies to all documents referred to in the affidavit. Furthermore, hearsay evidence cannot be considered on a motion for summary judgment.

Wiley, at 225-26 (citations omitted). However, evidence not meeting this standard may be considered by the district court unless the opposing party affirmatively raises the issue of the defect. The burden is on the opposing party to object to the improper evidence; failure to object constitutes a waiver.

If a party fails to object before the district court to the affidavits or evidentiary materials submitted by the other party in support of its position on summary judgment, any objections to the district court's consideration of such materials are deemed to have been waived, and [the Sixth Circuit] will review such objections only to avoid a gross miscarriage of justice.

Id. at 226 (citations omitted).

As a general matter, the district judge considering a motion for summary judgment is to examine "[o]nly disputes over facts...