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Thompson v. City of Lyndhurst

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 15, 2019

TIFFANY THOMPSON, Plaintiff-Appellant,
CITY OF LYNDHURST, ET AL., Defendants-Appellees.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-885688

          Fred D. Middleton, for appellant.

          Mazanec, Raskin & Ryder, Co., L.P.A., James A. Climer, and Frank H. Scialdone, for appellees city of Lyndhurst and Michael Scipione.

          Barbara A. Langhenry, city of Cleveland Director of Law, and Mark V. Webber, Chief Assistant Director of Law, and Amanda M. Boutton, Assistant Director of Law, for appellees city of Cleveland, Hernando Harge, and Robert Davis.



         {¶ 1} Plaintiff-appellant Tiffany Thompson ("Thompson") appeals from the trial court's August 2018 decision that granted summary judgment in favor of defendants-appellees the city of Lyndhurst, Lyndhurst detective Michael Scipione ("Detective Scipione"), the city of Cleveland, and city of Cleveland employees Hernando Harge ("Harge") (chief of human resources of the public utilities department), and Robert Davis (director of the public utilities department). For the reasons that follow, we affirm the trial court's decision.

         Factual and Procedural History

         {¶ 2} During the course of these proceedings, the appellees deposed Thompson. Her deposition testimony established that in 2012, Thompson began working for the city of Cleveland's department of public utilities, division of water. She worked as a customer service representative and part of her duties included handling customer billing and payments. Thompson testified that she was part of the city's union and subject to the union's collective bargaining agreement ("CBA").

         {¶ 3} She admitted that prior to the facts giving rise to this case, she was subjected to disciplinary action by the city on two occasions, once for an accusation that she improperly took a customer's credit card information and the other time for an accusation that she improperly billed a customer. She was represented by a union representative for at least one of the disciplinary proceedings.

         {¶ 4} Thompson was also twice subjected to disciplinary proceedings because of the city's allegation against her of excessive tardiness. She was represented by a union representative for those proceedings as well.

         {¶ 5} The Lyndhurst detective who was named as a defendant in this case, Detective Scipione, was also deposed. He testified that in November 2014, he took a report regarding a theft of $1, 000 to $2, 000 from an elderly person's checking account. During the course of his investigation, Detective Scipione learned that a man by the name of Montrea Donaldson ("Donaldson") was involved in a fraudulent check scheme; he had allegedly been using fraudulent checks to pay utility bills for some of his "clients."

         {¶ 6} One of Donaldson's utility bill clients provided the detective with the telephone number that he used to contact Donaldson. Detective Scipione called the number and Thompson answered the phone. Thompson agreed to meet the detective at the Lyndhurst police department.

         {¶ 7} The meeting between Detective Scipione and Thompson took place on November 10, 2014. Thompson told the detective that she knew of Donaldson's history of using fraudulent checks and that he had previously been to prison for check fraud, but she denied having any involvement in any fraudulent scheme. She also denied having any knowledge of Donaldson's specific whereabouts.

         {¶ 8} During the course of the meeting, the detective learned that Thompson allowed Donaldson to use her cell phone and her car (a grey Honda Civic) on several occasions, which the detective testified coincided with the times when the fraudulent transactions occurred; he also learned that Thompson worked at the city of Cleveland water department. Detective Scipione further learned that Donaldson and Thompson have a child together. The detective testified that by the end of his meeting with Thompson, he had doubts about her credibility.

         {¶ 9} Two days after Detective Scipione's meeting with Thompson, he met with another one of Donaldson's clients. This client told the detective that Donaldson had previously paid his gas bill. Donaldson had also attempted to pay the client's water bill, but the payment was rejected by the water department. The client told Detective Scipione that when he met Donaldson, he was driving a grey Honda Civic with a child's car seat in the back and a water department sticker in the window.

         {¶ 10} The client told the detective that the mother of Donaldson's child owned the vehicle and also that she worked for the water department. According to the client, Donaldson relied on this woman to help him get water bills paid. Donaldson told the client, "I got some people that work down at the water company."

         {¶ 11} Detective Scipione attempted to talk to Donaldson, but Donaldson refused. The detective submitted an affidavit for Thompson's arrest to the judge of the Lyndhurst Municipal Court. The judge issued an arrest warrant for Thompson.

         {¶ 12} On May 1, 2015, Thompson was arrested by Bratenahl police. The case was bound over from the Lyndhurst Municipal Court to the Cuyahoga County Court of Common Pleas; Detective Scipione testified before the grand jury. The grand jury returned a "true bill" against Thompson for theft, misuse of a credit card, and forgery. See Case No. CR-15-595540-A. The case was dismissed by the state in November 2015.

         {¶ 13} Prior to the dismissal of the first case, the Cuyahoga County Prosecutor's Office attempted to get another indictment against Thompson, along with Donaldson (despite Thompson already being under indictment); the grand jury "no billed" the second indictment as to Thompson. See Case No. CR-15-596736-A.

         {¶ 14} The city of Cleveland became aware of the charges against Thompson, and in June 2015, after a predisciplinary hearing, the city suspended her from her job pending resolution of the charges. In November 2015, the prosecutor's office dismissed the initial indictment against Thompson without prejudice. The record is not clear as to the reason for the dismissal. In January 2016, after verifying that no charges were pending against Thompson, the city sent Thompson a letter stating that she could potentially return to her position, with back pay, if she completed the "return-to-work process," which included completing some paperwork and submitting to drug and alcohol testing.

         {¶ 15} In February 2016, prior to completion of the return-to-work process, a "Tiffany J. Thompson" was arrested and charged with theft. The city contends that person is the appellant here. Thompson, on the other hand, contends that it was not her - her middle initial is "N." not "J." The city scheduled a predisciplinary hearing for February 23, 2016; Thompson failed to appear, however. A union representative appeared on her behalf and advocated for her; the city again placed Thompson on administrative suspension. Another disciplinary hearing was held in August 2017. Thompson was present, and prior to the hearing, the city provided her with all the documentation that it would be considering in determining its course of action. On September 8, 2017, the city terminated Thompson's employment.

         {¶ 16} Thompson filed the within action in the court of common pleas. She asserted claims for (1) malicious prosecution and false arrest against Detective Scipione and the city of Lyndhurst; (2) "broken promises" against the city of Cleveland and Harge based on their failure to return her to her position once her criminal case was resolved; (3) violation of public policy; and (4) breach of contract and implied contract against the city of Cleveland.

         {¶ 17} In March 2018, the city of Cleveland defendants filed a motion to dismiss. In April 2018, Thompson filed a motion to stay the proceedings "pending the results of the arbitration of the matter before the collective bargaining agreement with the city of Cleveland." According to Thompson's motion, the "terms of the CBA were not involved during that period [the first suspension], since she was offered reinstatement with full pay during her time of suspension." Rather, the "right to grieve and arbitrate the suspension of employment did not arise until the second period of suspension started in 2016."

         {¶ 18} The Cleveland defendants submitted deposition testimony in support of their motion to dismiss, and the trial court converted the motion to a motion for summary judgment. The Lyndhurst defendants also filed a motion for summary judgment. The court granted the defendants' motions, as to all claims and all ...

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