State ex rel. Conroy v. WilliamsState ex rel. Conroy v. Williams
{¶ 1} Appellants, George M. McKelvey, 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.
{¶ 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
{¶ 4} A brief review of the facts is instructive. On August 23, 2003, Youngstown City Council passed Ordinance 03-213, adopting
{¶ 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.
{¶ 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
{¶ 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
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 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,
{¶ 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.
{¶ 16}
{¶ 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 employment or official responsibilities, (b) an employee’s acts or omissions were done with malicious purpose, in bad faith, or in a wanton or reckless manner, or (c) civil liability is expressly imposed on an employee by a section of the Revised Code. See
{¶ 18} The term “employee” is defined in
{¶ 19} Appellants and appellee undertake the three-step analysis commonly associated with political-subdivision immunity in their appellate briefs. First, pursuant to
{¶ 20} However, where immunity is asserted by an employee of a political subdivision, courts need only undertake a two-step analysis. See Knox v. Hetrick, 8th Dist. No. 91102,
{¶ 21} Prior to asserting their substantive arguments, both parties argue that the other side committed procedural default with respect to the individual immunity claims. In their motion for summary judgment before the trial court, Appellants argued that the city is a political subdivision, enforcement of laws is a governmental function, and none of the exceptions in
{¶ 22} In appellee’s response to appellants’ argument in his memorandum in opposition to the motion for summary judgment before the trial court, he states:
{¶ 23} “Defendants also argue that the individually named Defendants have statutory immunity under R.C. Chapter 2744 from the discrimination claims. However, R.C. Chapter 2744 is titled ‘Political Subdivision Tort Liability.’ Any argument based on the immunities offered by that chapter of the Revised Code are clearly in the context of a negligence claim and are inapplicable to Defendant [sic] discrimination claims. Notwithstanding that R.C. Chapter 2744 on its face is inapplicable, it defies logic to argue that a political subdivision, bound by the laws and rules of civil service which exist to ensure fair play in the hiring of public employees, can be immune from a discrimination claim. Regardless, it is clear that [appellee’s] R.C. Chapter 4112 discrimination claim withstands summary judgment.”
{¶ 24} Appellants now contend that appellee waived his
{¶ 25} As stated earlier, the exceptions listed in
{¶ 26} Turning to the substantive arguments, it is unlawful for an Ohio employer to refuse to hire an individual because of race or sex.
{¶ 27} The Ohio Supreme Court has held that “[f]or purposes of R.C. Chapter 4112, a supervisor/manager may be held jointly and/or severally liable with her/his employer for discriminatory conduct of the supervisor/manager in violation of R.C. Chapter 4112.” See Genaro v. Cent. Transport, Inc. (1999),
{¶ 28} The easelaw applying
{¶ 29} However, at least one Ohio appellate court seems to recognize that
{¶ 30} McKelvey is named in this suit because of an action undertaken by him while engaged in a governmental function. At first blush, it appears easy to conclude that he is immune from suit. But because R.C. Chapter 4112 has been interpreted to include supervisory and managerial employees in the statutory definition of “employer,” we find that the general immunity provided in
{¶ 31} Turning to Wallace, Tipple, and Johnson, they are named only in the mandamus action, and appear to have been named solely in their official capacities. Appellee conceded as much at oral argument when his counsel stated that the appointees were named because they have an interest in the outcome of the mandamus action. Realistically, they were named solely because they were appointed to positions to which appellee claims entitlement. At no point is it alleged that they acted or failed to act in any governmental or proprietary
{¶ 32} Although the denial of the appointees’ motion for summary judgment on the issue of sovereign immunity was properly denied, we must here note that based on our review of the record, there were other reasons why summary judgment should have been granted to these persons.
{¶ 33} Because of the discretionary nature of civil-service appointments, we are at a loss to see how appellee can ever demonstrate two essential elements of his mandamus action; that is, that he has a clear legal right to the relief requested or that appellants have a clear legal duty to appoint him. Grosso,
{¶ 34} This is true despite the Fourth District Court of Appeals decision in State ex rel. DeMint v. Chillicothe (1991),
{¶ 35} Hence, based on Chambers, we must note that the denial of the motion for summary judgment based only on the issue of sovereign immunity on behalf of Wallace, Tipple, and Johnson should not be misinterpreted as a validation of their continued presence in this action by this court. However, because these named individuals are before us solely for the purposes of their motion for summary judgment on the issue of sovereign immunity, and sovereign immunity does not apply, we do not here find that they were improperly denied summary judgment.
{¶ 36} Although appellee did not seek damages from Wallace, Tipple, and Johnson and their involvement is clearly limited, the same is not true of Williams in his individual capacity. Appellee specifically requests that “judgment be entered in favor of [appellee] against McKelvey, Williams and City for compensatory damages in an amount in excess of Twenty-five Thousand Dollars ($25,-000.00).” (Emphasis added.) However, there are no other pertinent claims in the complaint, either originally or as amended, regarding Williams. Simply stated, there is no evidence or even allegation in the record that Williams has or had engaged in any decision-making whatsoever, nor has he allegedly engaged in any discriminatory conduct.
{¶ 37} In the amended complaint, appellee asserts that “[t]he City and Williams have failed and refused to comply with their obligations under the Ohio Civil Service law to make appointments to the Youngstown Police Department from the ten highest applicants as certified by the Commission.” However, it appears that appellee simply replaced MeKelvey’s name with Williams’s name in the amended complaint. As earlier argued, this suit is based on a decision made by McKelvey as a government official acting in a governmental capacity. Because it is alleged that the decision was the product of reverse discrimination, however, sovereign immunity does not apply as it ordinarily would to these allegations. The complaint does not contain allegations as to conduct specific to Williams.
{¶ 38} At oral argument, appellee argued that Williams is liable for discrimination under a continuing-violation theory, despite the fact that Williams is not named in the R.C. Chapter 4112 claim. The continuing-violation theory is typically invoked to bring a claim of discrimination within the statute of limitations, see e.g. Ohio Civ. Rights Comm. v. Triangle Real Estate Servs., Inc., 10th Dist. No. 06AP-157,
{¶ 39} As a consequence, appellants’ first assignment of error is sustained in part, with respect to Williams, and overruled in part, with respect to McKelvey, Wallace, Tipple, and Johnson, individually.
CLAIMED ASSIGNMENT OF ERROR NO. 2
{¶ 40} “Summary judgment should be granted to appellant city of Youngstown pursuant to O.R.C. § 2744 et seq. On appellee’s first cause of action because the decision of appellant McKelvey to appoint appellants Wallace, Tipple, and Johnson was discretionary and was not conducted in bad faith, with malicious purpose, or in a wanton or reckless manner.”
{¶ 41} Appellants concede that they failed to raise political-subdivision immunity on the part of the city in their summary-judgment motion before the trial court. Appellants contend that we should nevertheless consider the defense “because of pertinent case authority which was issued after the trial court’s order of March 13, 2008 denying Appellants’ motion for summary judgment and one day prior to Appellants’ perfection of their appeal.”
{¶ 42} In Ohio Bell Tel. Co. v. DiGioia-Suburban Excavating, 8th Dist. Nos. 89708 and 89907,
{¶ 43} Appellee argues that appellants’ failure to raise the immunity defense on behalf of the city in their motion for summary judgment constitutes a waiver of the defense. In Turner v. Cent. Local School Dist. (1999),
{¶ 44} Based upon the failure of the defendant to advance any explanation for its failure to raise statutory immunity in their original answer, the Supreme Court held that the defendant should have attempted to amend its answer to include the immunity defense prior to its initial motion for summary judgment. Because the llth-hour amendment delayed the trial and forced the case through the appellate system twice, the Supreme Court found that the trial court abused its discretion in granting the amendment.
{¶ 46} The parties should litigate the city’s claim of sovereign immunity before the trial court. Accordingly, we cannot consider this claim, or appellee’s claim that appellants have waived the city’s immunity defense. Therefore, appellants’ second assignment of error is overruled.
{¶ 47} In summary, the judgment of the trial court is affirmed with respect to McKelvey, because, in the event that appellee can prove that McKelvey committed race and sex discrimination, he may not avail himself of sovereign immunity pursuant to
Judgment affirmed in part and reversed in part, and cause remanded.