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Gray v. City of Cincinnati

August 1, 2006

KIMBERLEE GRAY, PLAINTIFF,
v.
CITY OF CINCINNATI, ET AL., JUDGE MICHAEL R. BARRETT DEFENDANTS.



The opinion of the court was delivered by: Michael R. Barrett, Judge United States District Court

OPINION AND ORDER

This matter is before the Court upon Defendants Glenda Smith-Johnston, Mark Gissiner, Kent Ryan, and Fay Dupuis' Motion for Partial Summary Judgment (Doc. 15). These Defendants, joined by the Defendants City of Cincinnati and John Shirey, have also filed a Motion for Summary Judgment. (Doc. 24) Plaintiff Kimberlee Gray has filed a Response in Opposition to both Motions (Docs. 20, 45), and Defendants have filed Replies. (Docs. 23, 54) This matter is now ripe for review.

A. FACTS

Plaintiff Kimberlee Gray began her employment with the Defendant City of Cincinnati ("the City") as an Investigator in the Office of Municipal Investigation ("OMI") in March 1998. (Doc. 21, Gray Depo. at 17-18) OMI was created to conduct independent investigations into allegations of serious misconduct by City employees. (Doc, 20, Ex. 1) As an Investigator, Gray's responsibilities included investigating allegations of serious misconduct involving City employees; investigating operations of entities funded by the City or under contract with the City; presenting findings and recommending corrective actions; and providing responsible staff assistance to the OMI Manager. (Doc. 20, Ex. 2)

In April of 2000, OMI Manager Ernest McAdams resigned from his position. (Gray Depo. at 18) Defendant John Shirey, the City Manager, appointed Gray as Acting Manager of OMI. (Id.) The OMI Manager reported directly to Shirey. (Gray Depo. at 21)

In her capacity as Acting Manager, Gray sent a memorandum to Defendant Kent Ryan, the Safety Director for Cincinnati's Police and Fire Divisions, which included a list of police officers who OMI had recommended be disciplined. (Doc. 20, Ex. 5) Gray sought information regarding the disciplinary action taken against these officers. (Id.) Upon receipt of the memorandum, Ryan telephoned Gray, voicing his belief that the request fell outside the authority of OMI. (Doc. 21, Ryan Depo. at 29-29; Doc. 20, Ex. 6) Gray states that Ryan acted in a belligerent and intimidating manner. (Gray Aff. ¶ 1) Ryan states that he was concerned that the information would be discoverable in litigation. (Ryan Depo. at 36)

Also during Gray's tenure as Acting Manager, the Cincinnati City Council directed OMI to investigate the authorization of certain payments made in connection with the "Genesis" redevelopment project. (Doc. 20, Ex. 4) Gray was actively involved with the Genesis investigation. (Gray Aff. ¶2) As a part of the investigation, Gray attempted to question Charles Bronson, a former Genesis supervisor. (Doc. 20, Ex. 8) Bronson refused to voluntarily talk with Gray and Frank Sefton, another OMI investigator, unless he was subpoenaed by City Council. (Gray Depo. at 104; Doc. 20, Ex. 8) On May 10, 2001, Gray informed Shirey that she would ask the City Council to issue a subpoena for Bronson. (Doc. 20, Ex. 9)

Shirey then instructed Defendant Faye Dupuis, then City Solicitor, to contact Bronson to convince Bronson to cooperate with the Genesis investigation without a subpoena. (Dupuis Depo. at 14) Dupuis contacted Gray and requested that she provide Bronson's telephone number. (Gray Depo. at 122-23) Gray refused to provide Dupuis with Bronson's telephone number because she believed that Dupuis was attempting in interfere with the Genesis investigation. (Id. at 121-22) In response to Shirey's and Dupuis' conduct, Gray appeared before the City Council on May 16, 2001 to report their alleged interference, and ask that she report to Council, not Shirey, on the Genesis investigation. (Doc. 20, Ex. 10) Council approved her request. (Id., Ex. 16)

Gray had applied for the position as the permanent OMI Manager. (Gray Depo. at 74) The position of OMI Manager required education which "should be equivalent to a Master's degree" or a Juris Doctorate. (Doc. 24, Ex. 1) Shirey determined that Gray did not meet this requirement. (Doc. 46, Shirey Depo. at 54-55) Gray alleges that Shirey told her that the position was reserved for African-Americans. (Gray Depo. at 146)

On June 18, 2001, Shirey announced that he hired Defendant Glenda Smith-Johnston as permanent Manager of OMI. (Doc. 45, Ex. 7)*fn1 Smith-Johnston is African-American. (Doc. 64, ¶ 50) Gray was returned to her position as an OMI Investigator. (Gray Depo. at 29-30) Gray's salary was reduced to that of an Investigator. (Id. at 157) However, Gray's salary did not include a merit increase that she would have received in the interim as an Investigator. (Doc. 45, Ex. 15) This matter was not resolved for almost six months. (Doc. 45, Ex. 16)

Gray also alleges that Shirey failed to create the position of "Chief Investigator." (Gray Aff. ¶ 5) Gray alleges that Shirey planned to promote her into this position if she was not hired as permanent OMI Manager. (Gray Depo. at 163-64)

According to Smith-Johnston, Gray indicated that her transition back to Investigator was difficult. (Doc. 20, Ex. 14) Smith-Johnston suggested that Gray seek psychological assistance and told her that she was not a team player. (Doc. 20, Ex. 13) Smith-Johnston also told Gray that if she was "unhappy and uncomfortable working in the OMI, as [she] expressed on July 13, 2001, it would be in [her] best interest to find other employment." (Doc. 20, Ex. 14) Gray alleges that Smith-Johnston was attempting to embarrass or humiliate her by suggesting that she seek psychological assistance. (Gray Depo. at 172-73)

In response to the controversy surrounding the Bronson subpoena, Smith-Johnston issued a directive forbidding OMI investigators from communicating with City Council members about their investigations. (Smith-Johnston Depo. at 231-32) Gray argues that Smith-Johnston effectively removed her from the Genesis investigation. (See Doc. 20, Ex. 15) Smith-Johnston disputes that she removed Gray from the investigation. (Doc. 20, Ex. 20)

On September 10, 2001, Smith-Johnston, Gray, and Sefton appeared before City Council to explain why Gray's role in the investigation had changed. (Gray Aff. ¶ 7; Doc. 45, Ex. 17) Council's motion requesting Gray's presence recounts the history of Gray's previous appearance before Council, and Council's efforts to learn the status of the Genesis investigation and Gray's role in the investigation. (Doc. 20, Ex. 10) The motion states further that:

It is critical that Council and the public learn whether this investigation has been further compromised. One of the issues being examined is whether Mr. Shirey was aware of approved payments to board members of Genesis/WECC and their relatives. The fact that his appointee, Ms. Smith-Johnston, so far refuses to let Ms. Gray answer questions gives the impression that facts are being covered up. (Id.) There was a certain amount of press coverage regarding Gray's appearance before City Council. (Doc. 45, Ex. 19)

On September 14, 2001, Smith-Johnston sent Gray a memo stating that as OMI Manager, she was "in charge of all investigations," and that Gray was to report directly to her. (Doc. 20, Ex. 20)

On September 24, 2001, Gray and Sefton sent materials responsive to City Council's request "to provide any relevant emails, notes or other material documenting the issues regarding the management of the [Genesis] investigation." (Doc. 45, Ex. 21) These materials included a taped conversation between Gray and Smith-Johnston, as well as emails and memoranda from Smith-Johnston. (Id.)

Gray maintains that Smith-Johnston denied her tuition reimbursement, and stated in a staff meeting that such reimbursements were no longer feasible because Gray had spent money on an expert witness during the course of an investigation. (Gray Depo. at 176-77) Gray states that Smith-Johnston made this statement to embarrass her, and disputes whether the statement was true. (Id.) Defendant Smith-Johnston contends that she denied all tuition reimbursements, and OMI simply did not have enough money to continue the program. (Smith-Johnston Aff. ¶ 5)

On October 15, 2001, Smith-Johnston sent a memo to Shirey suggesting that certain conduct of Gray and Sefton must cease, and be the subject of disciplinary action. (Doc. 20, Ex. 21) Smith-Johnston asked Shirey to "[p]lease advise." (Id.) On October 30, 2001, Smith-Johnston then issued an official "Disciplinary Action Notice" against Gray. (Doc. 20, Ex. 23) The Disciplinary Action Notice states that Gray was insubordinate, dishonest, and failed to exhibit good behavior. (Id.)

In October of 2001, Smith-Johnston resigned from her position under protest. (Doc. 20, Ex. 11) Defendant Mark Gissiner became Acting OMI Manager. (Gissiner Aff. ¶ 1) Gissiner completed a positive interim performance review for Gray in December of 2001, however, he expressed concern over "previous issues with Council member contacts." (Doc. 20, Ex. 24) Gray maintains that Gissiner retaliated against her by reassigning some of her cases to different investigators and changing her reports. (Gray Depo. at 178, 183) Gray also states that Gissiner removed her from an investigation involving Police Lieutenant Colonel Richard Janke. (Id. at 184) Gissiner informed Janke not to answer Gray's request for documents. (Doc. 20, Ex. 26) Gissiner states that he removed Gray from the investigation because he "just did not want that case to go in that direction." (Gissiner Depo. at 218) Gissiner explains that he wanted to protect OMI's relationship with the Police Department. (Gissiner Aff. ¶ 11) Gray states that she was humiliated and her reputation with the members of the police department was damaged. (Gray Aff. ¶ 10)

In January of 2003, Gray transferred to the internal audit department of the Citizens' Complaint Authority, where she remains employed today. (Gray Depo. at 31-32)

In her Amended Complaint, Gray brings a claim under 42 U.S.C. § 1983 for violations of the First, Fifth, and Fourteenth Amendments. Gray also claims reverse discrimination and retaliation based on race in violation of Title VII and Ohio Rev. Code Chapter 4112; violations of the Ohio Public Records Act and Ohio public policy; destruction of public records in violation of Ohio Rev. Code § 149.351; and spoilation of evidence. (Doc. 64) Defendants Glenda Smith-Johnston, Mark Gissiner, Kent Ryan, and Fay Dupuis (collectively "Individual Defendants") have been named in both their individual and official capacities.

B. ANALYSIS

1. Summary Judgment ...


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