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Smith v. Ohio Department of Public Safety

Court of Appeals of Ohio, Tenth District

September 26, 2013

Willie Smith, Jr., Plaintiff-Appellant,
Ohio Department of Public Safety et al., Defendants-Appellees.

APPEAL from the Court of Claims of Ohio, Ct. of Cl. No. 2009-06257

The Knoll Law Firm LLC, and Laren E. Knoll, for appellant.

Michael DeWine, Attorney General, Randall W. Knutti and Amy S. Brown, for appellees.



(¶ 1} Plaintiff-appellant, Willie Smith, Jr., appeals a judgment of the Court of Claims of Ohio in favor of defendants-appellees, the state of Ohio and the Ohio Department of Public Safety. For the following reasons, we affirm.

(¶ 2} Smith, who is African American, began working as a trooper for the Ohio State Highway Patrol ("OSHP") in October 1998. In June 1999, Smith was assigned to OSHP's Warren post.[1] There, Smith met Joseph Dragovich, who was a sergeant at the time. Although Dragovich was not Smith's direct supervisor, Dragovich often criticized Smith's work. Smith told Dragovich that he believed Dragovich "was a little racially biased to continually bother me all the time." (Tr. 683.) Dragovich responded that Smith was "stupid and immature[;] [r]acis[m] had nothing to do with anything." (Tr. 684.) Smith complained to the post commander about Dragovich's treatment of him.

(¶ 3} On June 29, 2000, the Director of the Department of Public Safety terminated Smith's employment for conduct unbecoming an officer; specifically, making threatening and intimidating comments to the public and co-workers. The Ohio State Troopers Association, Smith's union, filed a grievance asserting that the Department lacked just cause to terminate Smith. An arbitrator agreed with the union and ordered Smith reinstated.

(¶ 4} Smith returned to work in February 2001. The district commander required Smith to meet with Dragovich so Dragovich could relay to Smith the policy and procedure changes that had occurred during Smith's absence. At that meeting, Dragovich told Smith that he did not want to work with Smith and that he thought that Smith did not deserve to wear the uniform. According to Smith, during 2001 and 2002, "[Dragovich] just kept coming at me. Every day it was something else, some write-up." (Tr. 700.)

(¶ 5} In February 2002, Smith sent a letter to OSHP's superintendent complaining of Dragovich's "personal and racial bias" against him. Smith also complained to Peyton Watts, then OSHP's minority relations officer, that Dragovich was targeting him because of his race.

(¶ 6} In June 2002, Smith filed a complaint in the United States District Court for Northern Ohio against the Department of Public Safety and OSHP. The complaint alleged Title VII claims for racial discrimination and retaliation. The complaint arose from a charge of discrimination that Smith had filed with the Ohio Civil Rights Commission and the Equal Employment Opportunity Commission at some point after his discharge. Apparently, the charge alleged that Smith's discharge was a result of race discrimination and retaliation. After receiving a right-to-sue letter, Smith filed suit despite his reinstatement. In his complaint, Smith alleged that, since his reinstatement, he had experienced harassment based on his race and retaliation for his earlier complaints of race discrimination. Smith later dismissed his suit.

(¶ 7} At some point in 2002, Dragovich arrived at a crash scene prior to Smith. According to Smith, when he appeared at the scene, Dragovich yelled at him, apparently due to his lateness. Once Dragovich and Smith returned to the Warren post, Dragovich ordered Smith into his office. Smith refused to go without a witness. After that incident, the district commander informed Smith that he would report to the Hiram post until further notice. Smith grieved that transfer and prevailed. In 2003, Smith transferred back to the Warren post.

(¶ 8} Upon Smith's return, the district commander and his staff lieutenant, George Williams, met with Smith and Dragovich. Because Dragovich would be working the same shift as Smith, Dragovich would be Smith's direct supervisor. Williams told Dragovich and Smith that if they engaged in any further conflict, the party in the wrong would be written up. After that, the discord subsided for a time, although Smith complained that Dragovich failed to conduct ride-alongs with him as Dragovich did with the other troopers who he supervised.

(¶ 9} In August 2004, Dragovich transferred to the Lisbon post. After the transfer, Smith had no major disciplinary issues.

(¶ 10} Dragovich and Smith did not work together again until 2006. At that point, Dragovich was post commander of the Warren post. Smith was a trooper assigned to the Warren post who generally worked the third shift. Smith reported to Sergeant Michael Harmon, who reported to Dragovich.

(¶ 11} As post commander, Dragovich maintained close oversight of Smith's job performance. He criticized paperwork and a media report that Smith completed. In one instance, Dragovich told Smith not to speak with a sergeant while that sergeant was working and Smith was off the clock.

(¶ 12} In an interoffice communication to the district commander dated June 27, 2006, Smith requested a meeting with the district staff, Dragovich, and Harmon. At the July 27, 2006 meeting, Smith alleged that Dragovich was treating him unfairly and that Dragovich was racially biased. Given these allegations, OSHP initiated an administrative investigation into Dragovich's conduct.

(¶ 13} The investigator interviewed Smith and asked him to give examples of the issues between him and Dragovich. Smith claimed that Dragovich unfairly criticized his interaction with a motorist who he arrested for diving under the influence. Smith also complained that Dragovich directed Harmon to ask three times whether a person who had complained about Smith's conduct wanted to pursue a formal complaint. Normal practice was to contact a complainant only once. Finally, Smith alluded to a dispute between him and Dragovich about the delivery of his citation paperwork to the courts.

(¶ 14} Smith admitted that the other black troopers at the Warren post did not experience that same problems with Dragovich that Smith had encountered. Smith gave contradictory reasons for Dragovich's actions. At one point, Smith alleged that Dragovich was discriminating against him because of his race; at another point, Smith stated that the issues that Dragovich had with him were personal.

(¶ 15} The investigator next questioned Dragovich, who stated that he believed that Smith had a problem with any supervisor who held him accountable and tried to keep his operations in line with policy and procedure. According to Dragovich, Smith believed that Dragovich was picking on him any time that Dragovich addressed training issues with him. Dragovich acknowledged that he had personal issues with Smith, but Dragovich claimed that he could separate his personal feelings from his professional obligations.

(¶ 16} After also interviewing Harmon, the investigator concluded his investigation. The investigator drafted a written report in which he determined that no evidence supported Smith's allegations that he was being treated unfairly and that Dragovich was racially biased.

(¶ 17} In late September 2006, Smith received a written performance evaluation for the period of April 6 to October 5, 2006. Harmon had given Smith a draft version of the performance evaluation. When Smith compared the draft and final evaluations, he discovered that the final evaluation downgraded his performance in two areas, interpersonal skills and commitment to goals, objectives, and special programs.

(¶ 18} On October 6, 2006, Smith filed a second charge of discrimination with the Ohio Civil Rights Commission and the Equal Employment Opportunity Commission. In the charge, Smith stated that he believed Dragovich was discriminating against him based on his race and retaliating against him for filing a charge of discrimination in 2000. Smith cited the differences between the draft and final evaluations as evidence of the alleged discrimination and retaliation.

(¶ 19} After Smith filed the charge of discrimination, Dragovich would pin himself to the wall when Smith walked passed him. During the period between the filing of the charge and early 2007, Dragovich instructed Smith to wear his gun belt when he was at the post in uniform, but off duty. Dragovich also required Smith to spend more time patrolling, which reduced the time Smith had to complete his paperwork. Additionally, Dragovich questioned Smith's actions, but did not discipline him, for temporarily misplacing a hand-held radio and arriving at a training session late. At Dragovich's order, in January 2007, Smith was counseled for failing to timely service his cruiser.

(¶ 20} In May through July 2007, three incidents occurred that led to Smith's discharge. Before imposing discipline for a violation of policy and procedures or rules and regulations, OSHP conducts an administrative investigation into the suspected violation. An administrative investigation was completed on each of the three incidents.

(¶ 21} When presented with evidence of a violation of rules and regulations or policy and procedure, Dragovich, as post commander, would explain the situation to the district commander and his staff The district commander would then determine whether the alleged violation warranted an administrative investigation. No administrative investigation could proceed without the district commander's approval.

(¶ 22} In May 2007, Dragovich discovered that Smith had claimed three hours of compensatory time for attending a court hearing when he did not appear at the hearing location or meet with the prosecutor. According to OSHP policy, if a trooper is subpoenaed to attend a court hearing during a time that he is off duty, the trooper is entitled to a minimum of three hours of compensatory time or overtime pay. However, actual court appearance is required to qualify for the guaranteed minimum compensatory time or overtime pay. Court appearances require the trooper to appear at the hearing location and meet with the prosecutor.

(¶ 23} Smith was subpoenaed to appear at the Warren Municipal Court for a 10:15 a.m. hearing on May 11, 2007. He did not appear at the hearing location or meet with the prosecutor. Therefore, when Smith claimed three hours compensatory time for the court appearance, he violated OSHP policy.

(¶ 24} Dragovich discussed this violation of OSHP policy with the district commander and his staff. The district commander decided that an administrative investigation would only proceed if Smith had failed to attend any other court hearing. Traci Mendenhall, the prosecuting attorney for the Warren Municipal Court, believed, but could not verify, that Smith missed a hearing in another case. Based on Mendenhall's belief, Dragovich received permission to move forward with the administrative investigation.

(¶ 25} At some point, Dragovich spoke with Samuel Bluedorn, the defense attorney for the case in which Mendenhall believed that Smith had missed a hearing. Dragovich asked Bluedorn whether Smith had attended the hearings for that case. Bluedorn told Dragovich that Smith had appeared at all of the hearings.

(¶ 26} The district commander assigned Dragovich to conduct the administrative investigation. As part of his investigation, Dragovich interviewed Smith. Before the interview, Smith provided Dragovich with a written statement. According to that statement, Smith drove to the courthouse to attend the hearing. After parking outside of the courthouse, Smith sat in his car speaking on his cell phone. Smith was speaking to a medical provider about medical assistance that his father needed. From his car, Smith saw the defendant's attorney leaving the courthouse. Smith then left the parking lot. After dealing with his father's medical issues, Smith called the court to check on the status of the case. Later in the day, Smith visited the court and was told that the case was continued.

(¶ 27} When Smith arrived at the post for his 10:00 p.m. to 6:00 a.m. shift, he asked Harmon whether Harmon had entered the time for his court appearance into payroll. When Harmon answered affirmatively, Smith replied that he would "get with" Harmon later. According to OSHP records, Smith verified the compensatory time entry eleven minutes after Harmon entered it into payroll and seven minutes after Smith began his shift.

(¶ 28} Smith spoke with Harmon the next day, May 12, 2007, about his claim for compensatory time for the missed court appearance. By this time, Harmon had ascertained that Smith had not attended the hearing. When Harmon stated that he was considering cancelling the payroll entry, Smith told Harmon that similar situations had occurred with two other troopers, and one received full compensatory time and the other received one hour. According to Smith, he and Harmon decided to inform Dragovich about the situation.

(¶ 29} Smith also spoke with Williams about the incident. Smith stated he reminded Williams about the two other troopers who had received compensatory time after missing a court hearing. Smith recounted that Williams replied that "there ...

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