[Cite as Brown v. Woodmere, 2012-Ohio-89.]


               Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 97043




                                     MASAI BROWN
                                                   PLAINTIFF-APPELLANT

                                             vs.

                   VILLAGE OF WOODMERE, ET AL.
                                                   DEFENDANTS-APPELLEES




                                         JUDGMENT:
                                          AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-722343

        BEFORE: Rocco, J., Jones, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: January 12, 2012

ATTORNEY FOR APPELLANT
                                           2


Nicholas A. Papa
P.O. Box 391055
Cleveland, Ohio 44139

ATTORNEY FOR APPELLEES

John D. Latchney
Tomino and Latchney
803 E. Washington Street
Suite 200
Medina, Ohio 44256




KENNETH A. ROCCO, J.:

       {¶ 1} Plaintiff-appellant Masai Brown appeals from orders the trial court entered

in favor of defendant-appellee the Village of Woodmere on his claims of wrongful

discharge and racial discrimination.

       {¶ 2} Brown argues the pleadings did not demonstrate he could prove no set of

facts to support his wrongful discharge claim. He further argues summary judgment on

his racial discrimination claim was unwarranted.

       {¶ 3} In light of the record, this court disagrees. Consequently, the trial court’s

orders are affirmed.

       {¶ 4} Brown filed this action on March 25, 2010.         In his complaint against

Woodmere, he alleged in pertinent part as follows:
                                              3

       {¶ 5} Brown was employed as a police officer by Woodmere pursuant to the

village charter, Art. IV, Section 5(B). In January, 2006, he was disciplined for his use of

the “Mayor’s Court computer” for personal matters. At that time, he became aware the

village had an “Electronic Use” ordinance.

       {¶ 6} In May 2008, Brown received notice from the village mayor that he “was

being charged” with improper use of the “Sergeant’s computer.” The charges had been

brought due to information provided by another police officer, Sergeant Daniel Cisek.

       {¶ 7} Due to Cisek’s installation of “spyware” on the sergeant’s computer, which

the “Chief of Police viewed as a crime,” Cisek had the ability to “access any website

utilized by any [sergeant] using that person’s passwords without that person’s

knowledge.” The “mayor told the police chief to stop [an] investigation against Cisek *

* *,” but the mayor initiated disciplinary proceedings against Brown without first

requesting a police investigation of the charges against him. Brown received notice that

the mayor would hold a “pre-termination” hearing on May 23, 2008.                  The hearing

proceeded in Brown’s absence.

       {¶ 8} Upon concluding the hearing, the mayor decided to terminate Brown from

his position as a police officer for five reasons, viz., 1) violation of the village’s electronic

use policy; 2) unauthorized use of village property or equipment; 3) failure to observe

departmental rules and village policies; 4) conduct unbecoming a police officer; and 5)

dishonesty.
                                           4

       {¶ 9} Brown exercised his right to appeal his termination to the village council

pursuant to Woodmere Charter Art. IV, Section 5(C)(1). The village council held a

hearing on his appeal. At this hearing, the village council learned that, although other

officers and village officials also used the village computer for personal matters, the

electronic use policy was enforced only “against Brown.”

       {¶ 10} The mayor told the council that the charge of conduct unbecoming a police

officer was based upon the discovery of “sexually explicit material on the Sergeant’s

computer.” The mayor indicated that she had no “proof” Brown had been the person

who placed “sexually explicit photos” on that computer. Council upheld the mayor’s

decision to terminate Brown’s employment.

       {¶ 11} Based upon the foregoing facts, Brown presented three causes of action

against Woodmere. In the first count of his complaint, he claimed his termination from

employment was based on racial discrimination. He claimed he was terminated because

the village sought to bolster its defense to a federal lawsuit in which it had been charged

with reverse discrimination.

       {¶ 12} In the second count of his complaint, Brown presented a claim for wrongful

discharge in violation of his right to due process and “sound public policies.” He further

asserted the village lacked “legitimate business justifications” for terminating his

employment.
                                           5

      {¶ 13} Brown’s third count presented a claim for “common law wrongful

discharge.” He asserted that he was terminated “without cause.”

      {¶ 14} The village filed an answer to Brown’s complaint. In pertinent part, the

village made the following admissions: 1) Brown was employed as a police officer by

Woodmere pursuant to the village charter, Art. IV, Section 5(B); 2) in January, 2006, he

was disciplined for his use of the “Mayor’s Court computer” for personal matters; 3) at

that time, he became aware the village had an “Electronic Use” ordinance; 4) in May

2008, Brown received notice from the village mayor that he was being charged with

improper use of the “Sergeant’s computer”; 5) Brown received notice that the mayor

would hold a disciplinary “pre-termination” hearing on May 23, 2008; 6) the hearing

proceeded in Brown’s absence; 7) upon concluding the hearing, the mayor decided to

terminate Brown from his position as a police officer for the five reasons Brown listed in

his complaint; 8) Brown exercised his right to appeal his termination to the village

council pursuant to Woodmere Charter Art. IV, Section 5(C)(1); and, 9) the village

council held a hearing on his appeal before upholding the mayor’s decision.

      {¶ 15} The village denied the other pertinent allegations of Brown’s complaint and

asserted several defenses to his claims. The village asserted as follows:

      {¶ 16} Brown was not an “at will” employee. The United States Department of

Justice had investigated Brown’s actions, and had concluded Brown “used the Police
                                             6

Department computer to access/display pornographic images, including displays of

[Brown’s] genitalia and nude women.”

       {¶ 17} The village further asserted that Brown’s pre-termination hearing

originally had been scheduled for May 19, 2008 but it was continued to May 23, 2008, at

his request and that he had the opportunity to attend and present evidence; the village

council heard his appeal at a full and complete post-termination hearing; and the village

mayor, who was of the same race as Brown, had legitimate non-discriminatory reasons

for terminating Brown’s employment. The village also asserted no common law action

for wrongful discharge existed.

       {¶ 18} Soon after filing its answer to Brown’s complaint, the village filed a motion

for judgment on the pleadings as to Brown’s claims for wrongful discharge. Brown

submitted no brief in opposition to the motion.

       {¶ 19} On September 16, 2010, the trial court granted the village’s motion. The

trial court noted that only Brown’s claim for racial discrimination remained.

       {¶ 20} On May 2, 2011, Woodmere filed a motion for summary judgment on

Brown’s remaining claim. Woodmere argued Brown could not produce evidence to

support the elements of his claim. In support for its argument, Woodmere relied upon

portions of deposition testimony that it filed separately with the trial court.

       {¶ 21} Brown failed to respond to Woodmere’s motion. On June 14, 2011, the

trial court granted Woodmere’s motion for summary judgment.
                                            7

       {¶ 22} Brown filed a timely appeal from the trial court’s final order. He presents

two assignments of error.

       {¶ 23} “I. The trial court’s granting of the defendant, Village of Woodmere’s,

motion for judgment on the pleadings on Count II was in error where the plaintiff could

prove a set of facts to support his claim for wrongful discharge.

       {¶ 24} “II. The trial court erred when it granted Woodmere’s motion for summary

judgment on the issue of racial discrimination.”

       {¶ 25} Brown argues in his first assignment of error that the pleadings showed

Woodmere violated a “clear public policy” when it terminated his employment, because it

failed to follow its own “rules and procedures” in firing him. Based on this argument, he

contends the trial court improperly granted Woodmere’s motion for judgment on the

pleadings with respect to his claim for wrongful discharge in Count 2 of his complaint.1

This court disagrees.

       {¶ 26} Civ.R. 12(C) provides that “[a]fter the pleadings are closed but within such

time as not to delay the trial, any party may move for judgment on the pleadings.” Such

motions are used to resolve questions of law. State ex rel. Midwest Pride IV, Inc. v.

Pontious, 75 Ohio St.3d 565, 570, 1996-Ohio-459, 664 N.E.2d 931. The Ohio Supreme

Court further noted that, pursuant to Civ.R. 12(C), “dismissal is appropriate where a court



       1Brown   concedes the trial court’s decision on Count 3 of his complaint was
correct.
                                            8

(1) construes the material allegations in the complaint, with all reasonable inferences to

be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt,

that the plaintiff could prove no set of facts in support of his claim that would entitle him

to relief.” Id.

       {¶ 27} Thus, Civ.R. 12(C) requires a determination that no material factual issues

exist and that the movant is entitled to judgment as a matter of law. Id. The appellate

court’s review of decisions on Civ.R. 12(C) motions is de novo. Citicasters Co. v.

Bricker & Eckler, L.L.P., 149 Ohio App.3d 705, 708, 2002-Ohio-5814, 778 N.E.2d 663.

       {¶ 28} “The origin of the tort of wrongful discharge in violation of public policy is

the Ohio Supreme Court’s decision in Greeley v. Miami Valley Maintenance Contrs., Inc.

(1990), 49 Ohio St.3d 228, 551 N.E.2d 981.           Greeley provides that public policy

warrants an exception to the employment-at-will doctrine when an employee is

discharged or disciplined for a reason prohibited by statute. However, a Greeley cause

of action is available only to at-will employees * * * .” Surry v. Cuy. Cty. College, 149

Ohio App.3d 528, 2002-Ohio-5356, 778 N.E.2d 91, ¶49. (Emphasis added.)

       {¶ 29} In this case, the pleadings demonstrated that Brown was not an “at-will

employee.” Brown alleged that, in order to fire a village police officer, Woodmere’s

charter required the mayor to follow a procedure. Harris v. Greater Cleve. Transit Auth.,

Cuyahoga App. No. 89541, 2008-Ohio-676, ¶12.
                                              9

       {¶ 30} Brown further alleged that Woodmere complied with the due process

                                         2
procedure set forth in its charter.            Woodmere admitted Brown’s allegations.

Consequently, no factual issues existed with respect to his claim of wrongful discharge,

and it failed as a matter of law. Id., ¶13.

       {¶ 31} Brown’s first assignment of error, therefore, is overruled.

       {¶ 32} Brown argues in his second assignment of error that summary judgment on

his racial discrimination claim was inappropriate. Once again, this court disagrees.

       {¶ 33} Appellate review of a trial court’s decision on a motion for summary

judgment also is de novo.       Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,



       2 The   pertinent provisions of Article IV, Section 5 of the village charter
provide:
“(B) * * * [S]ubject to such confirmation as may be required herein or by the
ordinance of Council, the Mayor shall have the power to appoint and promote any
officer or employee of the Municipality, subject to the approval of Council, except
those required by this Charter to be elected. A vote of five (5) members of Council
shall be necessary to reverse the Mayor’s action.
“(C) The Mayor shall have the right to discipline and terminate the employment of
any officer or employee referred to in Section 5(B) in the following manner:
       “(1) With respect to the Police Chief, police officers and patrolmen, to
discharge from employment, suspend, transfer, reduce in rank or otherwise
discipline.
       “* * * Said action shall be final unless the person so disciplined requests a
review of the action in writing to the Council President within ten (10) days of the
effective date of the Mayor’s action.
       “The request for review shall contain in addition all points on which the
employee relies in support of his or her claim and shall be placed on the agenda for
the meeting of Council next following the expiration of such ten-day period which
may be attended by the person requesting the review. A vote of five (5) members of
Council shall be necessary to reverse the Mayor’s action.
“(D) Except as otherwise specifically provided in subparagraph (C)(1) all actions
taken pursuant to Section 5(C) shall be final and conclusive, and no right of appeal
                                          10

1996-Ohio-336, 671 N.E.2d 241; Zemcik v. La Pine Truck Sales & Equipment (1998),

124 Ohio App.3d 581, 706 N.E.2d 860. The court applies the following test:

      {¶ 34} “Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is

no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter

of law, and (3) reasonable minds can come to but one conclusion and that conclusion is

adverse to the nonmoving party, said party being entitled to have the evidence construed

most strongly in his favor.”      Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367,

1998-Ohio-389, 696 N.E.2d 201.

      {¶ 35} The party moving for summary judgment bears the initial burden of

showing that there is no genuine issue of material fact and that it is entitled to judgment

as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662

N.E.2d 264. If the moving party satisfies that burden, the nonmoving party “may not rest

upon the mere allegations or denials of the party’s pleadings, but the party’s response, by

affidavit or as otherwise provided in this rule, must set forth specific facts showing that

there is a genuine issue for trial.” Civ.R. 56(E). (Emphasis added.)

      {¶ 36} To prevail in an employment discrimination case, a plaintiff must prove

discriminatory intent. Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 1996-Ohio-265,

664 N.E.2d 1272. A litigant may use the indirect method of proof. Smith v. Greater

Cleve. Regional Transit Auth. (May 24, 2001), Cuyahoga App. No. 78274, citing Byrnes


shall be available.”
                                          11

v. LCI Communication Holdings Co., 77 Ohio St.3d 125, 1996-Ohio-307, 672 N.E.2d

145.

       {¶ 37} With respect to this method of proof, the Ohio Supreme Court has adopted

the analytical framework in cases involving claims of racial or gender discrimination that

was established by the United States Supreme Court in McDonnell Douglas Corp. v.

Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Blake v. Beachwood City

Schools Bd. of Edn., Cuyahoga App. No. 95295, 2011-Ohio-1099, ¶18, citing Plumbers &

Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio

St.2d 192, 421 N.E.2d 128.

       {¶ 38} Under that framework, a plaintiff-employee establishes a prima facie case

of discrimination by producing evidence of each of the following elements: 1) he was a

member of the statutorily protected class; 2) he suffered an adverse employment action;

3) he was qualified for the position; and, 4) a comparable, non-protected person was

treated more favorably. Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378,

701 N.E.2d 1023, citing McDonnell Douglas.

       {¶ 39} Only after the plaintiff-employee establishes a prima facie case does the

burden shift to the defendant-employer to overcome the presumption inherent in the

prima facie case by propounding a legitimate, nondiscriminatory reason for adverse

actions taken against the employee. Then, if the employer meets this test, the plaintiff
                                          12

must show that the rationale set forth by the employer was only a pretext for unlawful

discrimination.

       {¶ 40} In this case, in the face of Woodmere’s properly-supported motion, Brown

produced no evidence at all, let alone evidence that demonstrated he could establish a

prima facie case of racial discrimination. The presumption, therefore, never arose.

       {¶ 41} Brown acknowledged in his deposition testimony that during his more than

ten years with the village police department, the mayor, chiefs of police, and village

council members were mainly of the same race as he. In itself, this fact raised an

inference that racial discrimination did not occur. Brown v. CSC Logic, Inc. (5th Cir.

1996), 82 F.3d 651, 658.

       {¶ 42} Moreover, the third element of his discrimination claim required proof that

Brown was “qualified” to be a police officer. Brown admitted in his testimony that his

superiors had justifiably disciplined him on many occasions for, inter alia, improper

discharge of his weapon, conduct unbecoming of an officer, dishonesty, and gross neglect

of duty.

       {¶ 43} Brown further admitted that he was aware of the village’s electronic use

policy and his use of the sergeant’s computer was in violation of the policy. Brown

additionally acknowledged that, just before his improper computer use was discovered, he

had received a promotion. The mayor testified that she terminated Brown after she
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viewed the pornographic images that were on the sergeant’s computer; the images

included pictures of Brown’s genitalia.

      {¶ 44} Furthermore, with respect to the fourth element required for a successful

race-discrimination claim, Brown admitted he could think of no instances in which a

Caucasian police officer received better treatment than he did. Under the circumstances

presented in this case, summary judgment on Brown’s racial discrimination claim was

entirely appropriate. Mosley v. Cuy. Cty. Bd. of Mental Retardation, Cuyahoga App. No.

96070, 2011-Ohio-3072.

      {¶ 45} Brown’s second assignment of error, therefore, also is overruled.

      {¶ 46} The trial court’s orders are affirmed.

      It is ordered that appellee recover from appellant 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.


______________________________
KENNETH A. ROCCO, JUDGE

LARRY A. JONES, J., and
EILEEN A. GALLAGHER, J. CONCUR
