United States District Court, S.D. Ohio, Western Division
AND ENTRY OVERRULING PLAINTIFF MICHAEL GIBSON'S MOTION
FOR PARTIAL SUMMARY JUDGMENT ON HIS CLAIM THAT DEFENDANT
FAILED TO GIVE HIM DUE PROCESS (DOC. #19); OVERRULING AS MOOT
PLAINTIFF'S MOTION FOR SANCTIONS RE: SPOLIATION OF
EVIDENCE (DOC. #20); SUSTAINING MOTION FOR SUMMARY JUDGMENT
AS TO ALL CLAIMS AGAINST DEFENDANTS MECHANICSBURG POLICE
DEPARTMENT AND VILLAGE OF MECHANICSBURG (DOC. #21);
DISMISSING COUNTS I AND III WITH PREJUDICE; DISMISSING COUNT
II WITHOUT PREJUDICE; OVERRULING AS MOOT DEFENDANTS
MECHANICSBURG POLICE DEPARTMENT AND VILLAGE OF
MECHANICSBURG'S MOTION IN LIMINE (DOC. #26); JUDGMENT TO
ENTER IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFF;
H. RICE UNITED STATES DISTRICT JUDGE
termination from his position as a police officer, Plaintiff
Michael Gibson filed suit against the Mechanicsburg Police
Department and the Village of Mechanicsburg, alleging
disability discrimination in violation of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101
et seq., and/or the Rehabilitation Act of 1973, 29
U.S.C. § 794, and Ohio Revised Code Chapter 4112, and,
in addition, denial of his federal and state due process
matter is currently before the Court on four motions: (1)
Plaintiff's Motion for Partial Summary Judgment on his
Due Process Claims, Doc. #19; (2) Plaintiff's Motion for
Sanctions Re: Spoliation of Evidence, Doc. #20; (3)
Defendants' Motion for Summary Judgment on all claims,
Doc. #21; and (4) Defendants Mechanicsburg Police
Department's and Village of Mechanicsburg's Motion in
Limine, Doc. #26.
Background and Procedural History
2000, Michael Gibson began working part-time as a police
officer for the Village of Mechanicsburg. Around 2005, he was
diagnosed with Type 2 diabetes. He checks his blood sugar up
to three times a day, and controls his diabetes with diet,
exercise and injectable insulin. Doc. #16-1, PageID#82-83. In
2013, he was hired by the Village on a full-time basis.
Id. at PageID#70. Gibson typically worked the third
shift, midnight until 8:00 a.m. Id. at PageID#72-73.
January of 2014, John Alexander, previously a patrol officer
for the Village, was appointed Police Chief. Gibson testified
that Alexander had worked with him on many occasions, and
knew that he was diabetic. Id. at PageID#79; Doc.
#19-3, PageID#408. Alexander, however, does not recall
knowing that Gibson was a diabetic. Doc. #18-1, PageID#351.
after Alexander took over as Chief, he issued a policy,
effective January 24, 2014, prohibiting officers from leaving
the Village limits while they were on duty unless an
enumerated exception applied. Id. at PageID#313;
Doc.#18-3, PageID#363. Alexander instituted the policy
because he had heard from several citizens that Mechanicsburg
police cruisers had been spotted outside the Village limits.
Doc. #18-1, PageID#314. The Village had two police cruisers,
but typically only one officer was on duty at a time.
Id. at PageID##316-1 7. It was important that the
officer on duty stay within the Village limits so that he or
she could respond quickly to calls for assistance.
Id. at PageID#31 6.
Chief Alexander issued this new policy, Gibson told him that
he might occasionally need to leave the Village limits to go
home to get an insulin shot. Chief Alexander allegedly told
him to "do what you've got to do." Gibson
interpreted this statement to mean that, if he did leave the
Village limits while on duty, he would probably be in
trouble. Doc. #16-1, PageID#88-89. Alexander does not recall
this conversation. Doc. #18-1, PageID#323-24.
Chief Alexander had a GPS device placed on Gibson's
cruiser. Doc. #18-1, PageID#321. No officer other than Gibson
was tracked, because Alexander had not received complaints
about any other officer leaving the Village limits while on
duty. Id. at PageID##322-23. According to the GPS
device, Gibson left the Village limits without permission on
February 6th, 11th, 12th, and 14th. Id. at
February 18, 2014, Chief Alexander placed Gibson on paid
administrative leave, and gave him a Notice of
Predisciplinary Conference, scheduled for February 20, 2014.
Doc. #16-1, PageID#92. That Notice read as follows:
Alleged Offense: Incompetence, gross neglect of
duty, insubordination, failure to obey direct orders, and
violation of the Village's Personnel Policy Manual.
Summary of Charges: On January 27, 2014 you were
informed about the Village Policy prohibiting officers from
leaving the Village jurisdiction while on duty. On February
6, 11, 12, and 14 of 2014 you left the Village in violation
of policy and direct order. During several shifts you
recklessly operated your vehicle at excessive speeds. You
have falsified records through the submission of inaccurate
daily logs. You were ordered to write-up an officer and
failed to do so. You failed to attend a Mechanicsburg Police
Department staff meeting as ordered. On or about January 11,
2014 you were responsible for transporting to the Tri-County
Jail a prisoner who had been arrested for felonious assault.
Before the Tri-County Officer could take possession of the
prisoner you began uncuffing him. The Officer asked you to
leave the cuffs on so he could do a proper pat-down. You
replied, "if they want to play games I will play
games" and the Officer was forced to transport the
prisoner uncuffed into the booking area.
You have the right to (1) appear at the conference to present
a statement or explanation for your actions; (2) appear at
the conference with your chosen representative; or (3) elect
in writing to waive your opportunity to have a
predisciplinary conference by signing the attached form and
returning it to the undersigned. Failure to respond or
respond truthfully during the conference may result in
At the conference you may present an explanation regarding
the allegation(s) which explain whether or not the alleged
misconduct occurred. You may be represented by any person you
choose. No conference will be delayed more than 24 hours to
enable your representative to attend.
A written report will be prepared by the person who conducts
the conference concluding whether or not the alleged
misconduct occurred. A copy of this report will be provided
to you within five (5) workdays following its preparation if
you so request.
Doc. #19-3, PageID#411.
appeared at the conference on February 20, 2014, and was
questioned for approximately one hour by the Village's
human resources consultant, Anthony Esposito. Id. at
same day, at Gibson's request, the Village Administrator,
April Huggins-Davis, sent Gibson a copy of Section 8.04 of
the Village's Policy and Procedure Manual, setting forth
grievance procedures, and a copy of the grievance form.
Id. at PageID##409, 419. According to the
instructions on the grievance form, Gibson had to file the
form with his immediate supervisor within five working days
of the incident giving rise to the grievance. If the
grievance was denied, it could be appealed to the Mayor
within five working days. If denied by the Mayor, it could be
appealed to the Village Council within another five working
days. Id. at PageID##420-21.
February 21, 2014, Gibson was given another Notice of a
Predisciplinary Conference to be held on February 24, 2014.
Id. at PageID#413. This Notice raised additional
allegations of misconduct:
Alleged Offense: Incompetence, gross neglect of
duty, and violation of the Village's Personnel Policy
Summary of Charges: You have told at least two
different Village employees that you drink alcohol and drive.
On one particular occasion you stated that you could drink 18
beers and still be able to drive home.
Id. The Notice again informed Gibson of his right to
appear, on his own or with a representative, to present an
explanation for the allegations. Id.
appeared on February 24, 2014, and was questioned by Esposito
for approximately 30 minutes. At the end of the hearing,
Esposito offered Gibson an opportunity to resign.
Id. at PageID#408. On February 25, 2014, Esposito
submitted a report to Chief Alexander. He found that all
allegations were substantiated, except for the allegation
that Gibson had falsified daily activity logs. "Given
the multitude and seriousness of the various acts of
misconduct, " Esposito recommended that Gibson's
employment be terminated. Id. at PageID##414-18.
Tuesday, February 25, 2014, Chief Alexander notified Gibson
that he was recommending to Mayor Gregg Kimball that Gibson
be terminated for insubordination, gross neglect of duty,
incompetence, failure to obey direct orders, falsification of
records, and violation of Village policies. Doc. #16-2,
PageID#228. On February 26, 2014, Mayor Kimball officially
terminated Gibson's employment. Id. at
PageID#229. Gibson received Kimball's letter on February
27, 2014. Doc. #19-3, PageID#409.
March 3, 2014, Gibson submitted a grievance form to Chief
Alexander, challenging his termination. In an attached
written statement, Gibson disputed several of Esposito's
findings, and argued why he should not be discharged. Doc.
#16-2, PageID##230-33. The same day, Gibson received notice
that Chief Alexander and Mayor Kimball had both denied the
grievance. Id. at PageID##230-31. On March 7, 2014,
Gibson appealed the grievance to the Village Council. Doc.
March 18, 2014, the Village Solicitor sent Gibson a letter
informing him that the Village Council had voted to deny the
appeal as untimely. It explained that Ohio Revised Code
§ 737.19(B) required removal of a police officer to be
appealed within 5 days from the date of the Mayor's
decision. The Village deemed the Mayor's removal decision
to have been rendered not on March 3, 2014, when the Mayor
denied Gibson's grievance, but on February 27,
2014, when Gibson received Mayor Kimball's notice that he
was terminated. Gibson's appeal was not filed until March
7, 2014, and was, therefore, untimely. Id. at
April 30, 2014, Gibson filed a Charge of Discrimination with
the Equal Employment Opportunities Commission
("EEOC"). Id. at PageID#410. On August 31,
2015, the EEOC issued a ...