[Cite as Schmidt v. Newtown, 2012-Ohio-890.]



                         IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO



MICHAEL C. SCHMIDT,                            :      APPEAL NO. C-110470
                                                      TRIAL NO. A-0907388
          Plaintiff-Appellant,                 :

        vs.                                    :

THE VILLAGE OF NEWTOWN,                        :           O P I N I O N.

 and                                           :

VILLAGE COUNCIL FOR THE                        :
VILLAGE OF NEWTOWN,
                                               :

          Defendants-Appellees.                :



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed.

Date of Judgment Entry on Appeal: March 7, 2012


John C. Korfhagen, for Plaintiff-Appellant,

Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere and Scott A.
Sollmann, for Defendants-Appellees.




Please note: This case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Judge.


       {¶1}   Plaintiff-appellant Michael C. Schmidt appeals from the trial court’s

entries granting summary judgment to defendants-appellees The Village of Newtown

and Village Council for the Village of Newtown (collectively the “Village”) on all of

Schmidt’s claims and denying Schmidt’s motion for partial summary judgment.

Because we determine that the trial court properly granted summary judgment to the

Village and denied Schmidt’s motion, we affirm the trial court’s judgment.

                                         Background

       {¶2}   The Village had hired Schmidt on January 8, 2008, to serve as the

Village’s street commissioner and cemetery sexton. At some point after he had been

hired, Schmidt had also been made the maintenance supervisor.                  The street

commissioner/cemetery-sexton position had been a one-year appointment in

accordance with R.C. 735.31. The Village’s Personnel Policy Manual (the “Manual”),

which Schmidt acknowledged he had received, had provided that all Village

employees were “at will” and that they could be terminated with or without cause.

The Manual also had contained a discipline policy, which had included a progressive

disciplinary process. The Manual had stated, however, that the disciplinary process

was a guideline and that termination could be the first step in the process.

       {¶3}   On January 23, 2009, Schmidt had received a letter from the mayor

stating that the mayor would be recommending Schmidt’s termination at a Village

council meeting in four days. The letter informed Schmidt that he would be given

the opportunity at the meeting to present evidence and be represented by counsel.

At the meeting, the council members had voted unanimously to terminate Schmidt’s

employment.


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       {¶4}   Schmidt had filed an appeal of the council members’ termination

decision pursuant to R.C. Chapters 2505 and 2506 in the Hamilton County Court of

Common Pleas, in the case numbered A-0901655. The Village had made a motion to

dismiss that action, which the trial court had granted. The court had determined

that Schmidt was not entitled to an appeal because the council members’ decision

had not been the result of a quasi-judicial proceeding.          The court had also

determined that allowing an appeal in this instance would be inconsistent with the

at-will nature of unclassified, civil-service employment.

       {¶5}   Schmidt then filed the instant action, asserting eleven claims for relief,

including claims for deprivation of procedural due process; claims under 42 U.S.C.

1982 and 1983; declaratory judgment as to Schmidt’s employment status under R.C.

735.31; notice of right to an attorney under R.C. 9.84; unused vacation time and

compensatory time under the Fair Labor Standards Act, 29 U.S.C. 201; failure to

continue health insurance; and claims under the Open Meetings Act and Public

Records Act. The trial court granted the Village’s motion for summary judgment as

to all claims and denied Schmidt’s motion for partial summary judgment. Schmidt

appeals.

                            Summary-Judgment Standard

       {¶6}   When reviewing a summary-judgment ruling, we apply a de novo

standard of review. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 738 N.E.2d 1243

(2000). Under Civ.R. 56(C), summary judgment is appropriate when no genuine

issues of material fact remain, the moving party is entitled to judgment as a matter of

law, and it appears from the evidence that reasonable minds can come to but one

conclusion, and with the evidence construed most strongly in favor of the nonmoving


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party, that conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio

St.2d 317, 327, 364 N.E.2d 267 (1977).

       {¶7}   In Schmidt’s first assignment of error, he contends that the trial court

erred in granting the Village’s motion for summary judgment on all claims. We

address each of Schmidt’s claims in turn.

                             “At-Will” Employment Status

       {¶8}   In counts one and two of Schmidt’s complaint, he requests relief for

deprivation of procedural due process under the Fourteenth Amendment to the U.S.

Constitution and property rights under 42 U.S.C. 1982 and 1983, stemming from his

termination. In order to succeed on a claim for procedural due process under the

Fourteenth Amendment, and its state-law counterpart, Schmidt must establish the

existence of a liberty or property interest. Bd. of Regents of State Colleges v. Roth,

408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Similarly, 42 U.S.C. 1982

and 1983 require the existence of a property right, or the existence of some other

right, privilege, or immunity. At-will employees, however, do not have a property

interest in continued employment. Hemphill v. City of Dayton, 2nd Dist. No. 23782,

2011-Ohio-1613, ¶ 100.

       {¶9}   In Schmidt’s previously-filed action, case numbered A-0901655, the

trial court determined that Schmidt was an unclassified, at-will employee, and

therefore he was not entitled to an appeal under R.C. Chapters 2505 and 2506.

Collateral estoppel, or issue preclusion, “precludes the relitigation, in a second

action, of an issue that had been actually and necessarily litigated and determined in

a prior action that was based on a different cause of action.” State ex rel. Nickoli v.

Erie Metroparks, 124 Ohio St.3d 449, 2010-Ohio-606, 923 N.E.2d 588, ¶ 21.


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                     OHIO FIRST DISTRICT COURT OF APPEALS



Because Schmidt’s at-will employment status was necessarily litigated and

determined in the first action, and Schmidt never appealed the trial court’s

determination in the first action, Schmidt is collaterally estopped from relitigating

the issue in this action.

       {¶10} Moreover, the evidence in the record demonstrates that Schmidt was

an at-will employee. Under Ohio law, employment is presumed to be terminable at

will by either party, so long as the reason for the termination is not contrary to law.

Mers v. Dispatch Printing Co., 19 Ohio St.3d 100, 103, 483 N.E.2d 150 (1985). The

employer’s and employee’s conduct may evidence a reasonable expectation of

continued employment. See Holthaus v. Cincinnati Bd. of Educ., 76 Ohio App.3d

443, 447, 602 N.E.2d 360 (1st Dist.1991).

       {¶11} Even though employment is presumed to be at will, and the Village’s

Manual provides that all employees are at will, Schmidt argues that the disciplinary

process in the Manual, which provides for varying degrees of discipline, creates a

protectable interest in continued employment.       The disciplinary process in the

Manual establishes progressive steps of discipline, but the Manual also states that

the process is a guideline and that discipline can begin at any step, including

termination. Therefore, the Manual does not create an implied contract term that

alters Schmidt’s at-will status. See Fennessey v. Mount Carmel Health Sys., Inc.,

10th Dist. No. 08AP-983, 2009-Ohio-3750, ¶ 22 (the mere existence of a disciplinary

procedure in an employment manual does not change the at-will nature of

employment).

       {¶12} In count three of Schmidt’s complaint, he requests a declaratory

judgment as to his employment status under R.C. 735.31. First, collateral estoppel


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                    OHIO FIRST DISTRICT COURT OF APPEALS



also precludes Schmidt from arguing that R.C. 735.31 alters his status as an at-will

employee. Second, R.C. 735.31 does not create an interest in continued employment

in this case. R.C. 735.31 by its plain language establishes a one-year appointment

term for a street-commissioner position of a municipal corporation, which includes a

six-month probationary period. According to R.C. 735.31, an appointment is not

final until the end of the probationary period.    Nothing in the statute creates an

expectation of continued employment, especially where, as here, the one-year

appointment time had run prior to termination.

        {¶13} Therefore, because no genuine issues of material fact remain on counts

one through three of Schmidt’s complaint, the trial court did not err in granting

summary judgment to the Village on those counts.

                                         R.C. 9.84

        {¶14} In count four of Schmidt’s complaint, he asserts that he suffered

damages as the result of the Village’s failure to comply with R.C. 9.84. R.C. 9.84, in

short, provides that witnesses appearing in an administrative or executive

proceeding before a public official or body must be notified of their right to have an

attorney present at the proceeding.      Schmidt contends that two meetings had

occurred among Schmidt, the Village’s mayor, and a council member, one on

January 23 or 24, 2009, and one in December 2008. Schmidt alleges that the Village

had failed to inform him of his right to counsel at these meetings in violation of R.C.

9.84.

        {¶15} Schmidt’s claim under R.C. 9.84 fails. R.C. 9.84, by its express terms,

does not apply to “an employee of an appointing authority * * * who appears only as

a witness in an employment interview, investigation, or proceeding conducted by or


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                   OHIO FIRST DISTRICT COURT OF APPEALS



for the appointing authority.” An “appointing authority” is the officer or body with

the power of appointment or removal. R.C. 124.01(D). The only evidence in the

record shows that these meetings were informal, investigatory meetings conducted

by, or for, officials with removal power over Schmidt’s position. Thus, 9.84 does not

apply. See also Kirch v. Ohio Bur. of Workers’ Comp., 154 Ohio App.3d 651, 2003-

Ohio-5211, 798 N.E.2d 661 (10th Dist.) (determining that an investigatory interview,

which was not under oath or recorded, lacked the requisite level of formality to

trigger R.C. 9.84). The trial court did not err in granting summary judgment to the

Village on count four of Schmidt’s complaint.

    Unused Vacation/Compensatory Time and Failure to Continue
                       Health Insurance

       {¶16} In counts five and six of Schmidt’s complaint, he alleges that the

Village had failed to pay him unused vacation and compensatory time. With regard

to unused vacation time, Schmidt argues that he is entitled to vacation pay as

provided in the Village’s Manual. The Manual provides for payment of unused

vacation time upon an employee’s termination, provided that two weeks’ notice has

been given, and that “the termination is not the result of a disciplinary measure.”

The undisputed evidence shows that Schmidt’s termination had been the result of a

disciplinary measure. Therefore, no genuine issues of material fact exist as to the

issue of unused vacation time.

       {¶17} With regard to compensatory time, Schmidt argues that he is entitled

to payment for accumulated compensatory time, in accordance with the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. 201. Pursuant to the FLSA, employers must

generally pay overtime compensation for work performed in excess of 40 hours per

week. 29 U.S.C. 207(a)(1). Overtime need not be paid to an exempt employee
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                   OHIO FIRST DISTRICT COURT OF APPEALS



“employed in a bona fide executive, administrative, or professional capacity * * *.”

29 U.S.C. 213(a)(1). The determination of whether an employee’s duties fall within

an executive, administrative, or professional exemption is a question of law. White v.

Murtis M. Taylor Multi-Service Ctr., 188 Ohio App.3d 409, 414, 2010-Ohio-2602,

935 N.E.2d 873 (8th Dist.).

       {¶18} In determining whether an employee is exempt, courts must analyze

the Secretary of Labor regulations. See 29 C.F.R. 541.0 et seq. According to these

regulations, an employee serving in a bona-fide executive capacity means any

employee:

              (1) Compensated on a salary basis at a rate of not less

              than $455 per week * * * exclusive of board, lodging or

              other facilities;

              (2) Whose primary duty is management of the

              enterprise in which the employee is employed or of a

              customarily recognized department or subdivision

              thereof;

              (3) Who customarily and regularly directs the work of

              two or more other employees; and

              (4) Who has the authority to hire or fire other employees

              or whose suggestions and recommendations as to the

              hiring, firing, advancement, promotion or any other

              change of status of other employees are given particular

              weight.

29 C.F.R. 541.100(a).


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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶19} As to the first and third prongs, Schmidt had been paid on a salary

basis of at least $455 per week, and Schmidt had supervised at least two employees.

As to the fourth prong, the evidence offered by the Village shows that Schmidt had

disciplined a subordinate employee on at least one occasion, and Schmidt had

recommended hiring an additional employee to his department, and that

recommendation had been approved. Schmidt made a conclusory averment that he

had not had the authority to hire or fire other employees and that his suggestions

and recommendations as to the discipline or status of other employees had not been

given any weight. But Schmidt’s conclusory averment does not create an issue of

material fact. See James Yeager Homebuilders, Inc. v. Foss, 9th Dist. No. 23888,

2008-Ohio-548, ¶ 8 (“[A] nonmoving party cannot create a material dispute of fact

simply by producing an affidavit [that] contains conclusory allegations and fails to

set forth any facts that contradict the moving party’s factual assertions.”).

       {¶20} The main dispute between the parties concerns the third prong, as to

whether Schmidt’s primary duty was management. “Management” includes

              activities such as interviewing, selecting, and training of

              employees; setting and adjusting their rates of pay and

              hours of work; directing the work of employees;

              maintaining production or sales records for use in

              supervision     or    control;      appraising    employees’

              productivity    and    efficiency    for   the   purpose   of

              recommending promotions or other changes in status;

              handling      employee    complaints       and    grievances;

              disciplining employees; planning the work; determining


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                     OHIO FIRST DISTRICT COURT OF APPEALS



              the techniques to be used; apportioning the work among

              the employees; determining the type of materials,

              supplies, machinery, equipment or tools to be used or

              merchandise to be bought, stocked and sold; controlling

              the flow and distribution of materials or merchandise

              and supplies; providing for the safety and security of the

              employees or the property; planning and controlling the

              budget;   and    monitoring     or   implementing    legal

              compliance measures.

29 C.F.R. 541.102.

       {¶21} Factors a court should consider when determining whether

management duties are “primary” are

              the relative importance of the exempt duties as

              compared with other types of duties; the amount of time

              spent performing exempt work; the employee’s relative

              freedom from direct supervision; and the relationship

              between the employee’s salary and the wages paid to

              other employees for the kind of nonexempt work

              performed by the employee.

29 C.F.R. 541.700.

       {¶22} Schmidt asserts that he had spent most of his time performing “blue

collar” maintenance work, so that management was not his primary duty. The time

spent performing exempt work, however, is just one factor in determining an

employee’s primary duty under 29 C.F.R. 541.700.          The evidence shows that


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Schmidt’s managerial duties had been more important to the operation of the Village

than his physical labor. Schmidt had worked with little direct supervision, and he

had exercised independent judgment in management of the department.

Furthermore, the evidence shows that Schmidt had earned roughly 25 percent more

than one of his subordinate employees.         Thus, Schmidt qualifies as an exempt

executive employee under the FLSA. Schmidt has not presented any evidence that

he had been promised payment for compensatory time from the Village. Therefore,

no genuine issues of material fact exist as to Schmidt’s claim for unpaid

compensatory time.

       {¶23} In count seven of Schmidt’s complaint, he claims that he is entitled to

compensation for the Village’s failure to continue his health insurance. Schmidt

conceded in his opposition to the Village’s motion for summary judgment that the

survival of this claim depends upon the determination that the Village wrongfully

terminated him. Because we have not determined that Schmidt had been wrongfully

terminated, this claim fails.

       {¶24} The trial court did not err in granting summary judgment to the

Village on counts five, six, and seven of Schmidt’s complaint.

                                   Open Meetings Act

       {¶25}    Counts eight and nine of Schmidt’s complaint request relief under the

Open Meetings Act (“Act”). Schmidt argues in count eight of his complaint that the

Village had violated the Act when the Village had held executive sessions in

November 2008 and January 2009 for “personnel discipline.” Schmidt argues that,

under R.C. 121.22(G), he had been entitled to notice of the meetings, as he had likely

been the subject of the potential discipline discussed during the executive sessions.


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                   OHIO FIRST DISTRICT COURT OF APPEALS



       {¶26} R.C. 121.22(G)(1) provides that an executive session may be held “[t]o

consider the appointment, employment, dismissal, discipline, promotion, demotion,

or compensation of a public employee * * *, or the investigation of charges or

complaints against a public employee * * *, unless the public employee * * * requests

a public hearing.” R.C. 121.22(G)(1) does not create a right to a public hearing where

one did not previously exist. Matheny v. Frontier Local Bd. of Edn., 62 Ohio St.2d

362, 367, 405 N.E.2d 1041, 1045 (1980).         Only when a hearing is statutorily

authorized, and a public hearing is requested, does R.C. 121.22(G) operate as a bar to

holding an executive session to consider the dismissal of a public employee. Conner

v. Lakemore, 48 Ohio App.3d 52, 54, 547 N.E.2d 1230 (9th Dist.1988).

       {¶27} Schmidt has not pointed to any authority establishing the right to a

public hearing in this case. Therefore, no genuine issue of material fact remains on

this issue.

       {¶28} In count nine, Schmidt contends that the Village had held several

executive sessions without asserting a proper basis for the adjournment in violation

of the Act. As this court recently determined, an executive session is not a “meeting”

as defined by the Act, and therefore not required to be held in public, where no

deliberations take place and no decisions are reached. The Cincinnati Enquirer v.

Cincinnati Bd. of Edn., 192 Ohio App.3d 566, 2011-Ohio-703, 949 N.E.2d 1032 (1st

Dist.). No evidence exists that would suggest that any deliberations had been made

or decisions had been reached at these executive sessions. Schmidt’s claim cannot

survive summary judgment.       Therefore, the trial court did not err in granting

summary judgment to the Village on Schmidt’s claims under the Open Meetings Act.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



                                   Public Records Act

       {¶29} Finally, counts ten and eleven of Schmidt’s complaint allege causes of

action under the Ohio Public Records Act, R.C. 149.43. Schmidt contends in count

ten that the Village had violated R.C. 149.43 by failing to produce, in response to

Schmidt’s public-records request, a job description for the maintenance-supervisor

position. Schmidt argues that an issue of fact exists with regard to this issue because

Village council member Ken Pulskamp testified in his deposition that he had seen a

written job description. In response to Schmidt’s requests for admission, the Village

stated that it was not aware of any written description.

       {¶30} A public-records action must be brought as a mandamus action. State

ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 427, 639 N.E.2d 83 (1994). In turn,

a mandamus action must be brought in the name of the state.             R.C. 2731.04.

Schmidt neither brought this action as a mandamus action, nor did he bring the

action on behalf of the state—even after the Village noted Schmidt’s procedural

defects. Therefore, the Village was entitled to summary judgment on count ten of the

complaint. See Litigaide, Inc. v. Custodian of Records for Lakewood Police Dept.,

75 Ohio St.3d 508, 664 N.E.2d 521 (1996); Blankenship v. Blackwell, 103 Ohio St.3d

567, 574, 2004-Ohio-5596, 817 N.E.2d 382.

       {¶31} In count eleven of the complaint, Schmidt alleges that destruction of a

public record subjected the Village to liability under R.C. 149.351. Schmidt states in

his appellate brief that he is not appealing the dismissal of count eleven; therefore,

we will not address whether summary judgment was proper on this claim.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶32} In conclusion, because we determine, after a de novo review, that the

trial court properly granted summary judgment to the Village on Schmidt’s claims,

we overrule Schmidt’s first assignment of error.

                              Second Assignment of Error

       {¶33}   Schmidt contends in his second assignment of error that the trial

court erred in denying his motion for partial summary judgment. Because we have

determined that the trial court properly granted summary judgment in favor of the

Village on Schmidt’s claims, we also determine that the trial court properly denied

Schmidt’s motion for partial summary judgment. The second assignment of error is

overruled.

                                         Conclusion

       {¶34} No genuine issues of material fact exist with respect to Schmidt’s

claims, and the Village is entitled to judgment as a matter of law. The trial court

properly granted the Village’s motion for summary judgment and denied Schmidt’s

motion for partial summary judgment. The judgment of the trial court is affirmed.

                                                                     Judgment affirmed.

CUNNINGHAM, P.J., and DINKELACKER, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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