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Gargas v. City of Streetsboro9/14/2001
o St. 3d 447, 449. A "genuine issue" exists when a reasonable jury could return a verdict for the non-moving party based upon the evidence. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248.
In the case sub judice, before independently determining whether summary judgment was properly granted in favor of appellees as to appellant's due process and public policy claims, we must first address the underlying issue surrounding those claims. We will begin with appellant's due process claim under 42 U.S.C. Section 1983.
42 U.S.C. Section 1983 provides that any person who, under the color of any statute, ordinance, regulation, custom, or usage of any State, subjects another citizen of the United States to the deprivation of any rights secured by the Constitution and laws, then that person shall be liable to the injured party for damages. "Persons" is intended to encompass both municipal corporations as well as natural "persons." Monell v. Dept. of Social Serv. (1978), 436 U.S. 658. The Fourteenth Amendment of the United States Constitution provides that no state shall deprive any person of life, liberty, or property without due process of law. See, also, Article 1, Section 16, Ohio Constitution. In order to state a federal claim under 42 U.S.C. Section 1983, a plaintiff must demonstrate that his procedural due process rights were violated. A due process violation requires a showing that the conduct complained of deprived a plaintiff of a "liberty" and/or "property" interest/right without procedural safeguards. Merritt v. Canton Twp. Bd. of Trustees (1998), 125 Ohio App.3d 533, 537. Certain procedural safeguards must be implemented before one is deprived of a "liberty" and/or "property" right. Id.
When dealing with a "liberty" and/or "property" right in one's employment, the Supreme Court of Ohio has held that an individual must have more than an abstract need, desire, or unilateral expectation of continued employment; rather, an individual must have a legitimate claim of entitlement to continued employment. State ex rel. Trimble v. State Bd. of Cosmetology (1977), 50 Ohio St.2d 283, 285, (citing Bd. of Regents v. Roth , 408 U.S. 564, 577.) In the context of public employment, a plaintiff must show the defendant had a policy or custom that operated to deprive him/her of a constitutional right. Monell, 436 U.S. at 689. Such entitlement to due process protection in continued employment requires the establishment of a "property right." Lee v. Cuyahoga Cty. Court of Common Pleas (1991), 76 Ohio App.3d 620, 622. Property rights are created and defined by existing rules or understandings that stem from independent sources such as state laws, which secure benefits and support claims of entitlement to those benefits. Roth, 408 U.S. at 577. Nonetheless, one is not barred from asserting a due process claim when no statute or contract affirmatively grants him job security because a property right in continued employment need not be based on tenure or on explicit contractual guarantees of continued employment. State ex rel. Trimble, supra, 50 Ohio St.2d at 285. However, in the absence of statutory or contractual guarantees of continued employment, an individual must produce "rules or mutually explicit understandings" that support his claim of a property right in continued employment. Id. at 286. Once it is determined that a property right exists in continued civil service employment, such a right may not be taken without due process of law. Manning v. Clermont Cty. Bd. of Commrs. (1989), 55 Ohio App.3d 177, paragraph one of the syllabus; see, also, Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532.
In the case at bar, it is undisputed that appellant is a public employee of th
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