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Leggett v. City of Toledo

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

December 14, 2017

Stephen Leggett, Plaintiff
v.
City of Toledo, Defendant

          ORDER

          James G. Carr, Sr. U.S. District Judge.

         This is a procedural-due-process case under 42 U.S.C. § 1983.

         On New Year's Eve, 2015, the City of Toledo fired the plaintiff, Stephen Leggett, who was three months into his tenure as the Provisional Manager of the City's “Beautification Action Team” (BAT). The stated reason for the dismissal, it seemed, was politics: Leggett had served as the campaign manager for former Mayor D. Michael Collins, and, Leggett learned, the City's new Mayor, Paula Hicks-Hudson - who had just defeated Collins's widow in the 2015 mayoral election - “doesn't like your form.” (Doc. 5-3 at 62, 63-64).

         The City ordinarily considers Managers like Leggett to be “classified” employees whom it cannot fire without cause. Because Leggett held the managerial posting only provisionally, however, the City deemed him an “unclassified” employee whom it could fire at any time and for any reason. This was so because Leggett, before his “provisional” appointment to BAT, worked as an unclassified Mayor's Assistant 2.

         Leggett challenged his firing before the City's Civil Service Commission, contending that, despite his provisional appointment as the BAT Manager in September, 2015, he had actually and continuously performed the Manager's duties since July, 2014. According to Leggett, this meant his provisional posting became permanent under § 2101.49 of the Toledo Municipal Code, which converts a provisional appointment to a permanent one if the appointee continuously serves in the position for one year.

         The Commission determined that it had no jurisdiction over Leggett's case because he was an unclassified employee who had no right to appear before the Commission.

         Leggett then filed suit in the Common Pleas Court of Lucas County, Ohio.

         He alleged that the City deprived him of procedural due process by firing him without cause and denying him the opportunity to contest his dismissal. (Doc. 1-2 at ¶¶12-16). He also appealed the Commission's decision under O.R.C. § 2506.01, et seq., contending that the Commission's decision was arbitrary and capricious. (Doc. 1-3).

         The City removed the case to this court on the basis of federal-question jurisdiction. (Doc. 1).

         Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1367(a)(1).

         Pending are the parties' counter-motions for summary judgment. (Docs. 17, 21). For the following reasons, I grant Leggett's motion as to his due-process claim, hold the remainder of Leggett's motion in abeyance, and deny the City's motion.

         Background

         The Toledo Charter divides the City's civil service into classified and unclassified positions. Tol. Charter § 171.

         Employees in the classified service are entitled to certain protections, including the guarantee that the City cannot fire them without cause. Toledo Municipal Code (T.M.C.) § 2101.47. The City ordinarily selects these employees “based on merit and fitness” and after an application process. Id. Employees in unclassified positions, in contrast, are at-will employees whom the City can fire for any reason. T.M.C. §§ 171(1) and 172(a).

         In January, 2014, Leggett began working as the Commissioner of Special Projects in the City's Department of Public Service, where he was an unclassified employee. (Doc. 5-3 at 28, 30). About three months later, Mayor Collins demoted Leggett to the unclassified position of Mayor's Assistant 2 and transferred him to the Department of Parks, Recreation, and Forestry. (Id. at 30).

         There Leggett's supervisor was Dennis Garvin, the Department's Commissioner. (Id. at 31). Garvin believed that the Mayor had transferred Leggett to his Department so that Leggett could gain a greater understanding of its inner workings. (Id. at 74). He was not familiar with Leggett's duties after Leggett left the Parks Department. (Id. at 78-79).

         A. The BAT Manager

         Leggett continued in the Mayor's Assistant 2 role until July, 2014, when Mayor Collins transferred him to the Department of Inspection to “take over as the manager” of the BAT. (Id. at 32). The BAT is a City unit that cleans up vacant properties, cuts grass on City-owned land, and removes graffiti from private property. (Doc. 5-3 at 83). It was Leggett's understanding that he would replace Paul Ringlein, the outgoing and underperforming BAT manager. (Id. at 32, 83).

         1. Exempt Positions

         The BAT Manager is an “exempt” position within the City's classified service.

         According to the Charter, the “Exempt Service” is a set of positions at the management, supervisory, and confidential-staff level of various City departments. See T.M.C. § 2101.01. Employees working in “exempt” positions do not have collective-bargaining rights, nor may they receive overtime pay. T.M.C. § 2101.01(a), (b).

         City law establishes two routes to obtaining a classified, exempt position.

         First, the City may appoint a candidate “from the appropriate certified list [of applicants] and [who is] in the position on the eligibility list as to qualify for the appointment[.]” T.M.C. § 2101.49.

         Second, “in the absence of an eligibility list, ” the City may make a “Provisional Appointment.” Id. The Code expressly contemplates that such a provisional appointment can become permanent:

If no eligibility list is established within one year after the employee is provisionally appointed under this process, then the employee shall be made permanent. Alternate time served continuously up to the time of provisional appointment shall be counted toward the one year period.

Id.

         2. Leggett at BAT

         Leggett testified that he actively managed the BAT, and was the de facto Manager of that unit, from July, 2014, through September, 2015, when he received the provisional appointment, and from that date until December 31, 2015, when the City fired him.

         At the start of his tenure, the BAT was under the umbrella of the City's Department of Inspection. Chris Zervos was the Department Director. (Id. at 32). According to Zervos, who supervised Leggett from mid-July, 2014, through November, 2014, Leggett “was managing the [BAT] program.” (Id. at 84-85). In that role, Zervos explained, Leggett had the right to: 1) authorize time off for certain supervisors; 2) “do discretionary write ups of [certain] supervisors”; 3) request time off for employees in BAT; and 4) approve time reports. (Id. at 90).[1]

         Leggett acknowledged that, before the City provisionally appointed him as BAT Manager, he held only an unclassified designation as a Mayor's Assistant 2. But he testified that there were “important differences” between what a Mayor's Assistant 2 could do and what, in fact, he had done as the de facto BAT Manager. (Id. at 35). He cited, in particular, his ability to supervise and discipline staff as something he could not do were he merely a Mayor's Assistant 2. (Id.).

         In October, 2014, the City transferred the BAT to the Department of Neighborhoods. Tom Kroma was the Department's Director, and Cindy Geronimo was its Commissioner. (Id. at 35-38).

         Leggett testified that, beginning in April, 2015 - when BAT activity increased with the onset of warmer weather - he submitted weekly reports to Kroma and Geronimo summarizing the unit's activity. He submitted these reports in his capacity as “Manager - Beautification Action Team.” (Doc. 5-9 at 1-14) (weekly reports from April 22, 2015 through August 13, 2015). No one questioned Leggett's use of that title; in fact, Kroma and Geronimo “told [him] to use that title.” (Doc. 5-3 at 39).

         The record is replete with additional evidence of Leggett holding himself out as the BAT Manager without any objection from his supervisors or anyone else in City government. A very small sampling of this evidence shows:

• Leggett's payroll records through February, 2015, identified him as the BAT Manager (Doc. 5-3 at 44);
• Leggett's attendance records for the 2015 calendar year identified him as the BAT Manager (id. ...

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