                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 11a0472n.06

                                              No. 09-4564
                                                                                                FILED
                            UNITED STATES COURT OF APPEALS                                  Jul 12, 2011
                                 FOR THE SIXTH CIRCUIT                              LEONARD GREEN, Clerk


JOHN KUIVILA,                                                )
                                                             )         ON APPEAL FROM THE
        Plaintiff-Appellant,                                 )         UNITED STATES DISTRICT
                                                             )         COURT FOR THE
v.                                                           )         NORTHERN DISTRICT OF
                                                             )         OHIO
CITY OF CONNEAUT; EDWARD SOMPPI;                             )
JON ARCARO,                                                  )                  OPINION
                                                             )
        Defendants-Appellees.                                )



BEFORE: NORRIS, ROGERS, and GRIFFIN, Circuit Judges.

        ALAN E. NORRIS, Circuit Judge. In 2008, plaintiff John Kuivila sued his former

employers alleging breach of contract and promissory estoppel, wrongful discharge in violation of

Ohio public policy, and a violation of his First Amendment rights. On November 17, 2009, the

district court granted summary judgment in favor of the defendants. On appeal, plaintiff claims three

errors: 1) the district court should not have exercised supplemental jurisdiction over his state law

claims after dismissing his federal claim; 2) the district court incorrectly held that plaintiff’s contract

and promissory estoppel claims were barred by Ohio law; 3) the district court incorrectly dismissed

plaintiff’s public policy claim. We now affirm the judgment of the district court.

                                                    I.

        The district court summarized the relevant factual background in its opinion:
No. 09-4564
Kuivila v. City of Conneaut

       Plaintiff John Kuivila (“Plaintiff”) filed the instant action against his former
       employer, Defendant City of Conneaut, and against the, then, interim City Manager,
       Edward Somppi. Plaintiff also sued John Arcaro, the Conneaut Police Chief. The
       case was filed in the Ashtabula County Court of Common Pleas, and was removed
       to federal court on November 3, 2008. Mr. Kuivila has raised four claims, alleging
       (1) breach of contract, (2) promissory estoppel, (3) wrongful discharge in violation
       of public policy, and (4) violation of his First Amendment rights.

       The relevant facts are generally undisputed. Defendant Jon Arcaro has been the
       Chief of Police in Conneaut, Ohio since 2002. The City of Conneaut operates under
       a City Manager form of government. The City Manager, from the time of Mr.
       Kuivila's hire through May of 2008, was Doug Lewis. The City Manager is the Chief
       Executive Officer and makes all decisions relative to hiring and firing of city
       employees, including the police chief and other police officers. The City Manager,
       however, does not have any authority to change or modify legislation passed by the
       City Council.

       The Deputy Chief position held by Mr. Kuivila was created by legislation, passed by
       the Conneaut City Council in May of 2007. The legislation creating the position
       subjected the position to a one year probationary period and identified the position
       as a “classified civil service” position. In August of 2007, before Mr. Kuivila was
       hired, the ordinance was amended changing the classification of the position to
       “exempt from civil service.”

       Mr. Kuivila was hired for the Deputy Chief position on September 24, 2007. At the
       time of his hire, it was the intent of all City Council, the City Manager, and Mr.
       Kuivila that he would serve as Deputy Chief for a limited period of time, and would
       then take over as Police Chief when Chief Arcaro retired. Chief Arcaro was expected
       to work until May of 2008, and then to take accrued vacation until it was used up.
       Mr. Kuivila was expected to be designated as Acting Chief while Chief Arcaro used
       his accrued vacation, and then to be appointed as Chief of Police, upon Chief
       Arcaro's retirement, at the beginning of 2009. Nonetheless, there was no written
       employment contract, and all parties understood that during the one year probationary
       period, Mr. Kuivila was serving as an “at-will” employee, subject to termination
       without cause.

       Somewhere around February of 2008, Mr. Kuivila began to suspect that Chief Arcaro
       did not intend to retire, as previously planned. In April of 2008, Chief Arcaro
       rescinded his notice retirement. All parties knew that the City could not afford to
       keep both a Chief and a Deputy Chief on the payroll on an on-going basis. On or
       about May 7, 2008, Mr. Kuivila, Chief Arcaro, Mr. Lewis (who was retiring on May

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                                                                                 Kuivila v. City of Conneaut

         8), Law Director Lori Lamer, and interim City Manager Edward Somppi had a
         meeting to discuss the situation and to attempt to find a compromise that would allow
         Chief Arcaro to retire at a later date, and would allow Mr. Kuivila to work under the
         Chief (possibly at a higher interim salary) until his retirement. Nothing was resolved,
         however.

         On May 8, 2008 Edward Somppi took over as City Manager. Between May 9, 2008
         and June 16, 2008, various job performance issues arose with Mr. Kuivila. On June
         16, Mr. Kuivila's attorney sent a letter to the City outlining what essentially amounted
         to a promissory estoppel claim. On June 18, 2008, Chief Arcaro forwarded a memo
         to Mr. Somppi setting forth concerns about Mr. Kuivila's performance stemming
         from events arising prior to the June 16th letter from Mr. Kuivila's attorney. On June
         25, 2008, Chief Arcaro recommended to Somppi that Mr. Kuivila be terminated. On
         July 1, 2008, Somppi, in his role as City Manager, terminated Mr. Kuivila's
         employment. Plaintiff's probationary term under the hiring ordinance had not yet
         expired at the time of his termination.

Memorandum Opinion and Order at 2-4.

         The district court granted summary judgment to defendants on all claims. Plaintiff appeals

the district court’s judgment on his state law claims only. He also argues that the district court

should have remanded these claims to state court after dismissing his federal First Amendment

claim.

                                                   II.

1. Supplemental Jurisdiction

         When, as here, a district court had jurisdiction pursuant to 28 U.S.C. § 1331, it “may decline”

to exercise supplemental jurisdiction if it “dismissed all claims over which it has original

jurisdiction.” 28 U.S.C. § 1367(c)(3). The inclusion of the word “may” indicates that the district

court has discretion. See Carlsbad Technology, Inc. v. HIF Bio, Inc., 129 S. Ct. 1862, 1866 (2009)

(“a district court’s decision whether to exercise . . . [supplemental] jurisdiction after dismissing every


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                                                                              Kuivila v. City of Conneaut

claim over which it had original jurisdiction is purely discretionary.”) We review the district court’s

decision to exercise supplemental jurisdiction for abuse of discretion. Harper v. AutoAlliance Int’l.,

Inc., 392 F.3d 195, 209 (6th Cir. 2004).

        Here, the district court, having received briefing on both the federal and state claims, ruled

on all claims at the same time. This furthered the interest of judicial economy by avoiding

unnecessary litigation in a different forum. We may not have made the same choice as the district

court, but see no abuse of discretion.

2. Wrongful Discharge in Violation of Public Policy

       Having determined that the district court properly exercised supplemenetal jurisdiction over

the state law claims, we turn to the substance of those claims.

       Plaintiff contends that he was dismissed because he discussed his employment situation with

an attorney. Ohio public policy prohibits the discharge of an employee in retaliation for seeking

legal advice or retaining the services of an attorney concerning employment-related matters.

Chapman v. Adia Servs., Inc., 688 N.E.2d 604, 609 (Ohio Ct. App. 1997). To establish a prima facie

claim of wrongful discharge in violation of public policy, an employee must demonstrate the

following four elements: (1) a clear public policy existed and was manifested in a state or federal

constitution, statute, or administrative regulation, or in the common law; (2) dismissing employees

under circumstances like those involved in the plaintiff's dismissal would jeopardize the public

policy; (3) dismissal was motivated by conduct related to the public policy; and (4) employer lacked

overriding legitimate business justification for the dismissal. Collins v. Rizkana, 652 N.E.2d 653,

657-58 (Ohio 1995).

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                                                                               Kuivila v. City of Conneaut

        We take no position regarding the first three elements because we conclude that plaintiff

cannot satisfy the fourth. See Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280

F.3d 619, 629 (6th Cir. 2002) (“we may affirm on any grounds supported by the record even if

different from the reasons of the district court”). Plaintiff has not raised a genuine material issue of

fact concerning whether defendants had an overriding legitimate business justification to fire him.

In their motion for summary judgment, defendants presented extensive evidence concerning their

decision to terminate plaintiff’s employment: Chief Arcaro’s concerns over plaintiff’s job

performance; the City’s inability to fund both a Deputy Chief and Chief of Police position;

allegations of inappropriate behavior towards a female dispatcher that plaintiff belatedly admitted

were true after he initially denied the allegations; plaintiff’s failure to comply with the City and

Fraternal Order of Police’s (“FOP”) collective bargaining agreement; and the FOP’s vote of no

confidence concerning plaintiff’s job performance. These facts and occurrences constitute a

legitimate business justification to terminate the employee. See McDermott v. Continental Airlines,

339 F. App’x 552, 557-59 (6th Cir. 2009) (lack of candor with employer); Mischer v. Erie Metro

Hous. Auth., 168 F. App’x 709, 715-716 (6th Cir. 2006) (inability to work professionally with

others); Hausler v. General Electric Co., 134 F. App’x 890, 891, 895 (6th Cir. 2005) (cursing at

supervisor).

        In appeals of summary judgment decisions, we view evidence in the light most favorable to

the appellant. Matsushita Elec. Indus, Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Because plaintiff failed in the distrct court on appeal to contest that defendants’ stated reasons for

terminating his employment were not legitimate business reasons in the district court and on appeal,

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                                                                              Kuivila v. City of Conneaut

he failed to establish a genuine issue of material fact with respect to this element of his wrongful

discharge claim.

3. Breach of Contract/Promissory Estoppel

       Finally, we turn to plaintiff’s breach of contract and promissory estoppel claims. We have

carefully considered the positions advanced by counsel in both their oral arguments to the court and

in their briefs. We conclude that the district court correctly analyzed these claims in its Opinion and

Order filed on November 17, 2009. We therefore affirm on that reasoning.

                                                 III.

       The judgment of the district court is affirmed.




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