United States District Court, N.D. Ohio, Western Division
G. Carr, Sr. U.S. District Judge.
a procedural-due-process case under 42 U.S.C. § 1983.
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).
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.
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.
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.
then filed suit in the Common Pleas Court of Lucas County,
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.
City removed the case to this court on the basis of
federal-question jurisdiction. (Doc. 1).
is proper under 28 U.S.C. §§ 1331 and 1367(a)(1).
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
Toledo Charter divides the City's civil service into
classified and unclassified positions. Tol. Charter §
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
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).
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).
The BAT Manager
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).
Manager is an “exempt” position within the
City's classified service.
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).
law establishes two routes to obtaining a classified, exempt
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.
“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.
Leggett at BAT
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.
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.
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.).
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).
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).
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. ...