Cummings v. Cleveland

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-2541

Case Date: 06/20/2013

Plaintiff: Cummings

Defendant: Cleveland

Preview:[Cite as Cummings v. Cleveland, 2013-Ohio-2541.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99200
ALAN CUMMINGS
PLAINTIFF-APPELLANT
vs.
CITY OF CLEVELAND, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-779312
BEFORE:      Blackmon, J., Stewart, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED:      June 20, 2013

ATTORNEY FOR APPELLANT
Kevin P. Prendergast
27999 Clemens Road
Suite One
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEES
Barbara Langhenry
Director of Law
Theodora M. Monegan
Chief Assistant Law Director
Room 106, City Hall
601 Lakeside Avenue
Cleveland, Ohio 44114-1077
PATRICIA ANN BLACKMON, J.:

{¶1}    Appellant  Alan  Cummings                                                             (“Cummings”)  appeals  the  trial  court’s
judgment  affirming  the  decision  of  the  Civil  Service  Commission                       (“Commission”)
terminating his employment with the appellee city of Cleveland (“City”).   He assigns the
following error for our review:
The  trial  court  erred  in  finding  there  was  a  legally  sufficient
preponderance of reliable, probative, and sufficient evidence to support
the termination of appellant’s employment for a minor infraction.
{¶2}    Having reviewed the record and pertinent law, we reverse the trial court’s
decision and remand the matter for Cummings to be reinstated.    The apposite facts
follow.
Facts
{¶3}    Cummings worked as a security guard in the Department of Public Utilities
from December 2003 until he was terminated on October 26, 2007.   He had previously
worked as a Cleveland police officer from 1993 until he was laid off in 2003.   The City
terminated Cummings’s employment for violating the City’s sick leave policy by calling
in sick for four days, while continuing to work a second job on a different shift and for
working  at  a  second  job  without  prior  written permission as required by the City’s
policies and procedures.
{¶4}    Cummings appealed his discharge to the Director of Public Utilities.   The
Commission appointed a referee to hear the matter and make recommendations to the
director.   The referee issued a recommendation that Cummings’s termination should be
upheld for his failure to receive permission to work his secondary job.   The referee found

termination was not valid for the abuse of the sick leave policy because Cummings did
not work the same hours for the secondary employment as he did for the City and because
Cummings had medical evidence that he was indeed sick.   The referee also found that
the City did not have a written policy that a person could not work a secondary job within
24 hours of calling off sick from a City job.
{¶5}    The director issued a letter on April 14, 2008, agreeing with the referee and
upholding  the  termination. 1     Cummings  appealed  the  director’s  decision  to  the
Commission.   The Commission affirmed the director’s decision and upheld Cummings’s
termination.
{¶6}    Cummings appealed the Commission’s decision to the court of common
pleas  pursuant  to  R.C.  Chapter                                                                       2506.    The  trial  court  upheld  the  decision  of  the
Commission, stating:
Upon full review of the record and briefs, this court finds in favor of
the appellee.   The Civil Service Commission’s decision upholding Mr.
Cummings’s termination was not unconstitutional, illegal, arbitrary,
capricious, unreasonable or unsupported by the preponderance of the
substantial,  reliable,  and  probative  evidence.     The  Civil  Service
Commission’s decision is affirmed.   Journal Entry, October 25, 2012.
1Unfortunately, this letter was never served on Cummings or his counsel.    After trying to
obtain the letter, counsel filed a mandamus action with our court.    On December 6, 2010, we ordered
the director to properly serve his letter and ordered that Cummings receive a hearing before the Civil
Service Commission to appeal the director’s decision.    State ex rel Cummings v. Ambroz, 8th Dist.
No. 94735, 2010-Ohio-6028.

Standard of Review
{¶7}    Cummings brought his appeal pursuant to R.C. Chapter 2506.     In Henley
v. Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 2000-Ohio-493, 735 N.E.2d 433, the
Ohio Supreme Court explained the applicable standard of review as follows:
[W]e  have  distinguished  the  standard  of  review  to  be  applied  by
common  pleas  courts  and  courts  of  appeals  in  R.C.  Chapter  2506
administrative appeals. The common pleas court considers the “whole
record,” including any new or additional evidence admitted under R.C.
2506.03,   and   determines   whether   the   administrative   order   is
unconstitutional,   illegal,   arbitrary,   capricious,   unreasonable,   or
unsupported  by  the  preponderance  of  substantial,  reliable,  and
probative evidence. See Smith v. Granville Twp. Bd. of Trustees (1998),
81  Ohio  St.3d                                                                        608,   612,   1998-Ohio-340,   693  N.E.2d   219,  citing
Dudukovich v. Lorain Metro. Hous. Auth.  (1979),  58 Ohio St.2d  202,
206-207, 389 N.E.2d 1113, * * *.
The standard of review to be applied in an R.C.  2506.04 appeal is
“more limited in scope.”   Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34,
12 OBR 26, 465 N.E.2d 848, 852. “This statute grants a more limited
power to the court of appeals to review the judgment of the common
pleas court only on ‘questions of law,’ which does not include the same
extensive power to weigh  ‘the preponderance of substantial, reliable

and probative evidence,’ as is granted to the common pleas court.” Id.
at fn. 4. “It is incumbent on the trial court to examine the evidence.
Such is not the charge of the appellate court.* *  * The fact that the
court of appeals * * * might have arrived at a different conclusion than
the  administrative  agency  is  immaterial.  Appellate  courts  must  not
substitute their judgment for those of an administrative agency or a
trial  court  absent  the  approved  criteria  for  doing  so.    Lorain  City
School Dist. Bd. of Edn. v. State Emp. Relations Bd.  (1988),  40 Ohio
St.3d 257, 261, 533 N.E.2d 264, 267.” Id. at 147.
{¶8}    Thus, our more limited review requires us to  “affirm the common pleas
court, unless [we find], as a matter of law, that the decision of the common pleas court is
not supported by a preponderance of reliable, probative and substantial evidence.”   Kisil
at 34, 465 N.E.2d 848 (1984).   Within the ambit of “questions of law” includes whether
the  common  pleas  court  abused  its  discretion.    Henley  at  148,  2000-Ohio-493,  735
N.E.2d  433. Abuse of discretion connotes more than an error of law or of judgment;
rather,  it  implies  the  court’s  attitude  was  unreasonable,  arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
Law and Analysis
{¶9}    In his sole assigned error, Cummings argues that the evidence did not show
by the preponderance of reliable, probative, and substantial evidence that the termination

of a long-term employee, who failed to submit paperwork for secondary employment, was
appropriate punishment.   We agree.
{¶10}  We note at the outset that the City attempts to argue that Cummings’s
termination was based on a history of misconduct and cites to various alleged disciplinary
problems with Cummings.   However, the City failed to present testimony or documents
regarding Cummings’s previous disciplinary actions at the referee’s hearing.   The City
did attach to its appellee’s brief before the Commission an unauthenticated document
listing Cummings’s alleged past misconduct; however, the City did not seek to admit the
document pursuant to Civil Service Rule 9.60.   The City also did not attempt to admit the
evidence pursuant to R.C. 2506.03 for consideration by the common pleas court.   We
note in the previous mandamus action before this court, the City also attempted to attach
the document to its brief opposing the mandamus action; we held that we could not
consider it because it was unauthenticated.   Therefore, because the evidence was never
properly admitted, we cannot consider the allegations of Cummings’s prior misconduct in
conducting our review.
{¶11} It is undisputed that Cummings failed to submit a permission form to work a
secondary job in violation of the City’s policy regarding secondary employment.   The
issue before us is whether the trial court abused its discretion as a matter of law by
upholding the Commission’s decision to terminate Cummings for failing to turn in the
form.

{¶12}  The evidence showed that Cummings received approval in the past for
working the same secondary job.   His supervisor, Lt. Kathleen Thomas admitted that if
Cummings had submitted the permission form, he would have again received approval to
work the secondary job.   Therefore, the fact that permission would have been granted if
the form had been turned in, makes Cummings’s failure to do so insignificant because the
City was not opposed to the job itself.
{¶13} Although Lt. Thomas also testified that it was protocol to terminate people
for working secondary jobs without permission, the evidence indicated that only one other
employee in the Utilities Department had been terminated for violating the policy.   That
person, however, had committed more egregious violations in addition to not receiving
the requisite permission.   Unlike Cummings, that person was working the secondary job
at  the  same  time  she  was  supposed  to  work  her  City job  and  attempted  to  falsify
documents to conceal her wrongdoing.   Here, Cummings was not working overlapping
shifts and had previous permission to work the job.
{¶14} There was also no evidence that there was a formal written policy stating
that if an employee failed to receive permission to work a secondary job, he or she would
be discharged.    The City presented evidence that it sent out memoranda    reminding
workers to submit their permission forms, but nowhere does the reminder state that the
employees would be subject to discharge for failing to do so.
{¶15}  We  conclude  the  trial  court  abused  its  discretion  by  affirming  the
termination  of  Cummings  because  the  court’s  decision  is  not  supported  by  a

preponderance  of  reliable,  probative,  and  substantial  evidence.                       The  only evidence
presented by the City in support of Cummings’s termination was his failure to turn in the
permission form to work the secondary job.   This is insignificant given that Cummings
has worked for the City for 13 years, has received permission in the past to work the
secondary job, and would have been granted permission again to work the job if he had
turned in the form. Accordingly, Cummings’s sole assigned error is sustained.
{¶16} Judgment reversed and remanded.
It is ordered that appellant recover from appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MELODY J. STEWART, A.J., and
MARY EILEEN KILBANE, J., CONCUR

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