Robinson v. City of Cincinnati

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Ronald Robinson,

Plaintiff,

v. Case Number: 1:21cv253

Judge Michael R. Barrett

City of Cincinnati, et al.,

Defendants,

ORDER

This matter is before the Court upon Defendants City of Cincinnati and the

Cincinnati Health Department’s Motion for Judgment on the Pleadings. (Doc. 7).

Plaintiff has filed a Response in Opposition (Doc. 8) and Defendants filed a Reply (Doc.

10).

I. BACKGROUND

While Plaintiff Ronald Robinson was serving on the City of Cincinnati Health

Department’s Board, he was encouraged by the City’s Health Commissioner and other

officials to apply for an opening as Director of Finance for the Cincinnati Health

Department. (Doc. 2, ¶¶ 1-2). Robinson applied for the position. (Id., ¶ 17).

Robinson was later advised by the City Solicitor’s Office that he would need to resign

from his position as a member of the Health Department Board in order to proceed with

his application. (Id., ¶ 20). Robinson resigned from the Board. (Id., ¶ 21). After

several rounds of interviews, Robinson was rated as the top candidate. (Id., ¶ 23). The

Board offered him the position and authorized his hire. (Id., ¶ 25-28). Robinson

resigned from his previous job and began working as Director of Finance. (Id., ¶ 29).

Approximately three months into his tenure, a taxpayer challenged Robinson’s

appointment based on a conflict of interest and filed a taxpayer lawsuit in the Hamilton

County Court of Common Pleas. (Id., ¶¶ 30-31). In defending against the lawsuit, the

City maintained that it was unaware that Robinson applied for the position while he was

serving as a member of the Health Department’s Board; and in effect had been

“hoodwinked” by Robinson. (Id., ¶ 32). The court determined that Robinson’s hire was

unlawful and enjoined the City from employing Robinson. (Id., ¶ 33). That same day,

the City notified Robinson that he was being terminated immediately. (Id., ¶ 34).

Robinson requested that the City afford him a public hearing to clear his name of the

stigma that he acted dishonestly or deceitfully. (Id., ¶ 36). The City rejected this request

for a hearing. (Id.)

Robinson has brought the following claims against the City of Cincinnati and the

Cincinnati Health Department: (1) promissory estoppel; and (2) violation of due process.

(Doc. 2). Robinson’s claims were originally filed in the Hamilton County Court of

Common Pleas, but were removed to this Court. (Doc. 1).

II. ANALYSIS

A. Motion for Judgment on the Pleadings

The standard of review for a Rule 12(c) motion is generally the same as for a

motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

Bates v. Green Farms Condo. Ass'n, 958 F.3d 470, 480 (6th Cir. 2020) (citing D'Ambrosio

v. Marino, 747 F.3d 378, 383 (6th Cir. 2014)). Accordingly, “[f]or purposes of a motion

for judgment on the pleadings, all well-pleaded material allegations of the pleadings of

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the opposing party must be taken as true, and the motion may be granted only if the

moving party is nevertheless clearly entitled to judgment.” Fritz v. Charter Tp. of

Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting JPMorgan Chase Bank, N.A. v.

Winget, 510 F.3d 577, 581 (6th Cir. 2007)). The factual allegations in the complaint need

to be sufficient to give notice to the defendant as to what claims are alleged, and the

plaintiff must plead "sufficient factual matter" to render the legal claim plausible, i.e., more

than merely possible. Id. (citing Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-950 (2009)).

Although the plausibility standard is not equivalent to a “’probability requirement,’ . . . it

asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft,

129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 556 (2007)).

“If, on a motion under 12(b)(6) or 12(c), matters outside the pleadings are

presented to and not excluded by the court, the motion must be treated as one for

summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). However, “when a document

is referred to in the pleadings and is integral to the claims, it may be considered without

converting a motion to dismiss into one for summary judgment.” Commercial Money

Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335–36 (6th Cir. 2007) (citing Jackson

v. City of Columbus, 194 F.3d 737, 745 (6th Cir.1999)); see also Waters v. Drake, 105 F.

Supp. 3d 780, 788-89 (S.D. Ohio 2015) (“While the allegations in the complaint are the

primary focus in assessing a Rule 12(c) motion, ‘matters of public record, orders, items

appearing in the record of the case, and exhibits attached to the complaint[ ] also may be

taken into account.’”) (quoting Barany–Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir.

2008)).

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B. City of Cincinnati Health Department

Defendants argue that the claims against the Cincinnati Health Department should

be dismissed because it lacks the capacity to sue or be sued. Robinson does not dispute

that the Health Department should be dismissed from these proceedings. Accord Saint

Torrance v. Firstar, 529 F. Supp. 2d 836, 850 (S.D. Ohio 2007) (“The Cincinnati Water

Works, as a department of the City of Cincinnati, a municipal corporation, is not sui juris

and cannot be sued absent statutory authority.”) (citing City of Cuyahoga Falls v. Robart,

58 Ohio St.3d 1, 567 N.E.2d 987, 992 (Ohio 1991)). Therefore, the claims Defendant

Cincinnati Health Department are DISMISSED.

C. Promissory estoppel

The City argues that Robinson’s promissory estoppel claim should be dismissed

because the principle of estoppel does not apply against a state or agency in the exercise

of a governmental function and, alternatively, Robinson has not sufficiently alleged facts

to overcome the presumption that he was an at-will employee.

Robinson responds that the City misinterprets his promissory estoppel claim and

therefore it is not necessary to address the termination of his employment as an at-will

employee. (Doc. 8, PAGEID 151). Robinson explains that his claim is not based on his

termination, but is instead based on the City’s promise that he was being awarded the

Director of Finance position which induced him to leave his previous employment.

Regardless of how he frames his claim, Robinson’s claim is subject to Ohio’s

employment-at-will doctrine:

In general, under Ohio's employment-at-will doctrine, “the employment

relationship between employer and employee is terminable at the will of

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either; thus, an employee is subject to discharge by an employer at any

time, even without cause.” Wright v. Honda of Am. Mfg., Inc. (1995), 73

Ohio St.3d 571, 574, 653 N.E.2d 381, 384. However, the Ohio Supreme

Court has established two exceptions to the employment-at-will doctrine:

(1) the existence of implied or express contractual provisions that alter the

terms of discharge and (2) the existence of promissory estoppel where

representations or promises have been made to an employee. Id., citing

Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104–105, 19 OBR

261, 264–265, 483 N.E.2d 150, 154-155.

Clark v. Collins Bus Corp., 136 Ohio App. 3d 448, 451, 736 N.E.2d 970, 972–73 (Ohio

Ct. App. 2000). To establish the promissory estoppel exception to at-will employment,

the plaintiff must show: “(1) the employer made a promise clear and unambiguous in its

terms to the employee, (2) the employee relied on that promise to his detriment, (3) the

reliance was reasonable and foreseeable, and (4) the employee was injured by the

reliance.” Nealon v. Cleveland, 140 Ohio App. 3d 101, 109, 746 N.E.2d 694, 699 (Ohio

Ct. App. 2000) (citing Cohen & Co. v. Messina, 24 Ohio App.3d 22, 26, 24 OBR 44, 48–

49, 492 N.E.2d 867, 871–872 (Ohio Ct. App. 1985)).

The Court notes that Robinson’s willingness to give up his secure employment in

reliance upon the City’s representations would establish the second element. See

Casale v. Nationwide Children's Hosp., 682 F. App'x 359, 366 (6th Cir. 2017) (citing

Patrick v. Painesville Commercial Props., Inc., 99 Ohio App.3d 360, 650 N.E.2d 927, 931

(Ohio Ct. App. 1994)). However, Robinson has not alleged sufficient facts which would

support the first element. As one Ohio court has explained:

In the absence of a “specific promise of continued employment,” a promise

of future benefits or opportunities does not support a promissory estoppel

exception to the employment-at-will doctrine. Wing v. Anchor Media, Ltd.

of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph two of the

syllabus. Other Ohio courts of appeals have likewise found a clear,

unambiguous promise to be indispensable to a finding of promissory

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estoppel in employment-at-will cases. See Ekunsumi v. Cincinnati

Restoration, Inc. (1997), 120 Ohio App.3d 557, 562, 698 N.E.2d 503, 506;

Healey v. Republic Powdered Metals, Inc. (1992), 85 Ohio App.3d 281, 284,

619 N.E.2d 1035, 1036.

Clark v. Collins Bus Corp., 136 Ohio App. 3d 448, 452–53, 736 N.E.2d 970, 974 (Ohio

Ct. App. 2000); see also Pertz v. Edward J. DeBartolo Corp., 188 F.3d 508 (6th Cir. 1999)

(“Ohio courts routinely find employer promises of continued secure employment,

designed to dissuade an employee from seeking or accepting a position with a different

company, both definite and worthy of reasonable reliance.”) (citing cases). Here,

Robinson has not alleged any facts in his Complaint which could be construed as a

specific promise of continued employment. Accord Stewart v. Everyware Glob., Inc., 68

F. Supp. 3d 759, 767–68 (S.D. Ohio 2014) (dismissing promissory estoppel claim on

motion to dismiss where “[t]he complaint fails to allege sufficient facts to show that a clear,

specific and unambiguous promise of continued employment was made to plaintiff by

defendants, an essential element of the promissory estoppel claim.”). Therefore, the City

is entitled to judgment as to Robinson’s claim of promissory estoppel.1

D. Due process

The Fourteenth Amendment's Due Process Clause forbids states from “depriv[ing]

any person of life, liberty, or property, without due process of law.” U.S. Const. amend.

XIV, § 1. “[A] person's reputation, good name, honor, and integrity are among the liberty

interests protected by the due process clause of the fourteenth amendment.” Chilingirian

v. Boris, 882 F.2d 200, 205 (6th Cir.1989). A deprivation of any of those interests “must

1Accordingly, the Court finds it unnecessary to reach the City’s alternative argument that

it is immune from Robinson’s promissory estoppel claim.

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be accompanied by notice and an opportunity to be heard to refute any charges against

that person.” Id. Therefore, when a nontenured public employee “shows that he has

been stigmatized by the voluntary, public dissemination of false information in the course

of a decision to terminate his employment, the employer is required to afford him an

opportunity to clear his name.” Quinn v. Shirey, 293 F.3d 315, 320 (6th Cir. 2002)

(quoting Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir.1989)).

The City argues that there was no violation of Robinson’s due process rights

because he was not entitled to a name-clearing hearing; and even if he was entitled to a

hearing, Robinson’s due process rights were satisfied through his participation in two civil

lawsuits and an investigation by the Ohio Ethics Commission.

The Sixth Circuit has established a five-factor test to determine whether a plaintiff

has been deprived of a liberty interest and is entitled to a name-clearing hearing:

First, the stigmatizing statements must be made in conjunction with the

plaintiff's termination from employment.... Second, a plaintiff is not deprived

of his liberty interest when the employer has alleged merely improper or

inadequate performance, incompetence, neglect of duty or malfeasance....

Third, the stigmatizing statements or charges must be made public.

Fourth, the plaintiff must claim that the charges made against him were

false. Lastly, the public dissemination must have been voluntary.

Ludwig v. Board of Trustees, 123 F.3d 404, 410 (6th Cir. 1997) (internal citations omitted).

The City maintains that Robinson has not adequately alleged statements which

were “stigmatizing.” In response, Robinson requests leave to file an amended complaint

to provided additional factual detail. Such a request is not proper. Instead, Robinson

must file a separate motion for leave which states with particularity the grounds for the

motion. See Fed.R.Civ.P. 7(b)(1)(B).

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In any event, the Court concludes that allowing Robinson leave to file an amended

complaint would be futile because any due process requirement that Robinson be

afforded a name-clearing hearing has been satisfied. As one district court has explained:

courts have held that post-termination name-clearing hearings need not be

held for employees who have been acquitted of alleged criminal conduct

following jury trials, Graham v. City of Philadelphia, 402 F.3d 139, 144 (3d

Cir. 2005), Seeley v. Board of County Commissioners for La Plata County,

Colorado, 654 F.Supp. 1309 (D.Colo. 1987), employees who do not dispute

the substantial truth of the allegations made against them, Codd, 429 U.S.

at 627-28, and employees who have been given pre-termination hearings

to address the allegedly false allegations against them, Liotta v. Borough of

Springdale, 985 F.2d 119 (3d Cir.1993).

Hoffman v. Kelz, No. 06-C-153-C, 2007 WL 675741, at *8 (W.D. Wis. Feb. 20, 2007).

This Court has recognized the same:

in Graham v. City of Philadelphia, 402 F.3d 139 (3d Cir. 2005), the plaintiff

police officer was terminated from his employment following his arrest for

sex with a minor. Following a criminal trial at which he was acquitted, the

officer filed suit against his employer alleging deprivation of a liberty interest

due to the employer's failure to hold a name-clearing hearing. The Third

Circuit determined that the employee's “criminal trial negate[d] his

entitlement to a name-clearing hearing because that trial satisfied the

requirements of the Due Process Clause.” Id. at 144. In so concluding,

the Court found that the employee's “criminal trial provided him with more

than adequate opportunity to refute the allegations asserted against him.”

Id. Other courts have also concluded that various types of post-deprivation

hearings were sufficient to meet the name-clearing hearing requirement.

See e.g., Seeley v. Board of Commis, 654 F.Supp. 1309, 1312 (D.Colo.

Mar. 9, 1987) (criminal jury trial gave plaintiff the required opportunity to

clear his name); Hoffman v. Kelz, No. 06–C–153–C, 2007 U.S. Dist. LEXIS

12146, 2007 WL 675741 (W.D.Wis. Feb. 20, 2007) (fact-finding hearing

before Village Board provided “ample opportunity” to address charges

against the plaintiff and therefore employer was entitled to summary

judgment on plaintiff's claim for failure to provide name-clearing hearing).

Claborn v. Montgomery, No. 2:11-CV-679, 2012 WL 4056845, at *5 (S.D. Ohio Sept. 14,

2012); see also McCormick v. District of Columbia, 899 F.Supp.2d 59, 67-69 (D. D.C.

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2012) (post-termination administrative procedures provided for public employees

satisfied the due process requirements of a name-clearing hearing); Dimucci v.

Pennsylvania Convention Center Authority, Case No. 08cv4810, 2010 WL 2640151 at *5

(E.D.Pa. June 29, 2010) (grievance hearing on charges of vandalism served as an

adequate substitute for name-clearing hearing for purposes of due process; plaintiffs were

represented at the hearing and evidence was presented on their behalf such that they

had the opportunity “to tell their side of the story”).

Here, the City’s hiring of Robinson as the Director of Finance was the subject of

hearings in three different proceedings. The first proceeding was the taxpayer lawsuit

filed in the Hamilton County Court of Common Pleas, State ex rel. Gould v. Bd. of Health

of the City of Cincinnati, Case No. A1903715. According to the public docket in the case,

Judge Robert Ruehlman held two hearings on the motion for injunctive relief filed by the

relator on behalf of the taxpayers. (Doc. 7-1, PAGEID 69, 71). Judge Ruelman

concluded that Robinson's application and subsequent hiring violated Ohio Revised Code

§ 2921.42, which provides that a public official may not “[a]uthorize, or employ the

authority or influence of [his] office to secure authorization of any public contract in which

the public official, a member of the public official's family, or any of the public official's

business associates has an interest.” (Doc. 7-1, PAGEID 72). While Robinson was not

a named party in the case, the record indicates that Robinson and his counsel were

involved in the proceedings. In his discussion of whether to grant injunctive relief to the

taxpayers based upon irreparable harm:

In this instance, the harm to the taxpayers is clear: Mr. Robinson has

received more than $50,000 in salary under an unlawful employment

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relationship with the Board and will continue to receive such a salary without

recompense to city taxpayers unless the Court halts such payments. In

response to arguments made by Mr. Robinson's personal lawyer, Relator

argues that because Mr. Robinson knowingly put himself in this position, he

cannot legitimately claim to be harmed by the injunctive relief sought. The

Court finds this argument to be well-taken.

(Doc. 7-1, PAGEID 74).

The second proceeding was a lawsuit brought by Chadrian Johnson, Johnson v.

Robinson, et al., Case No. No. A1905071. According to Johnson’s publicly-filed

complaint, Johnson was the number two candidate for the Director of Finance position

when Robinson was hired. (Doc. 7-2, PAGEID 79). Johnson brought claims for civil

conspiracy, tortious interference with prospective contractual relations and unjust

enrichment against the City and Robinson. (Doc. 7-2, PAGEID 86-89). Robinson,

through counsel, filed an answer in which he denied the allegations that he knowingly

violated Ohio Revised Code § 2921.42. The public docket shows that these proceedings

ended soon thereafter with a notice of dismissal with prejudice filed by counsel for

Johnson.

The third proceeding was an investigation conducted by the Ohio Ethics

Commission. The investigation was based on an allegation that Robinson, while still a

member of the Cincinnati Board of Health, applied for the position of Director of Finance.

(Doc. 7-4, PAGEID 142). The proceedings ended with a public settlement agreement

signed by Robinson and the Ohio Ethics Commission. (Doc. 7-4) (“Settlement

Agreement”). The Settlement Agreement states:

Robinson maintains he was first verbally advised that he would have to

resign from the Board in order to continue with the process. The City

maintains Robinson was first verbally advised that he would have to resign

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from the Board in order to apply for the position. Additionally, Robinson

maintains he was not told a more formal written opinion from the Solicitor’s

Office was being emailed to him; however, the City maintains Robinson was

told a more formal written opinion had been written and would be sent to

him soon. The formal written opinion was emailed to Robinson by the

administrative assistant to the solicitor. Robinson maintains he did not know

the administrative assistant, so he did not open the email. The written

opinion stated that Robinson needed to resign from the Board prior to

submitting his application but Robinson maintains that he did not see this

opinion until it was sent to his attorney after the lawsuit was filed by the

citizen.

(Doc. 7-4, PAGEID 143). The Settlement Agreement also states that the Commission

“found that the facts support a violation of the conflict of interest provisions in RC. 1

02.03(D) and (E) and the public contract provision of R.C. 2921 .42 of the Ohio Ethics

Law because Robinson submitted an application for an open position at the Cincinnati

Health Department when he was still a Cincinnati Board of Health Member, which

oversees the operations of the Health Department, and he subsequently accepted the

position.” (Doc. 7-4, PAGEID 144). However, the Commission determined that the

matter should be addressed through its settlement authority based on certain mitigation

factors:

In mitigation of any violation, Robinson is no longer employed as the

Director of Finance; Robinson’s fellow board members encouraged him to

apply for the position because they thought he was a very qualified

candidate; HR personnel for the City of Cincinnati provided to the Board the

top ten applicants for the position, which included Robinson; the Board

conducted seven first round interviews, which included Robinson; the Board

conducted three second round interviews, which included Robinson; and

after the interviews were concluded, Robinson was ranked first out of the

three finalists. The City had several opportunities to halt the hiring process,

including: when the City Attorney’s Office was consulted after Robinson

applied for the position but before he resigned from the Board; when the

Board consulted with the City Attorney’s Office regarding Robinson’s

candidacy; when the City Attorney’s Office was present during the

Executive Session when the Board discussed the hiring of senior leadership

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positions; and lastly, when the City verified Robinson’s employment

eligibility prior to his hiring as was stated in his offer of employment letter

dated January 31, 2019. In addition, Robinson was cooperative with the

investigation.

(Doc. 7-4, PAGEID 144-45). The Settlement Agreement also states:

Per the terms of this Settlement Agreement, Robinson acknowledges that

when he submitted an application for an open position at the Cincinnati

Health Department when he was still a Cincinnati Board of Health Member

he violated the conflict of interest provisions in RC. 102.03(D) and (E). He

further acknowledges that his acceptance of the position violated the public

contract provision in R.C. 2921 .42 as found by Judge Ruehlman. In lieu

of a referral of this matter to the local prosecuting attorney, Robinson

accepts a reprimand from the Commission. Robinson agrees he will not

make any public argument in defense of the acknowledgement contained

in this settlement agreement by stating that he did not do anything wrong,

that the facts do not support a potential violation of the Ohio Ethics Law, or

that the resolution of this matter is legally or factually deficient for any

reason due to the investigation or processes of the Ethics Commission.

(Doc. 7-4, PAGEID 144-45).

The Court notes that the “purpose of a name-clearing hearing is to afford the

aggrieved employee an ‘opportunity to be heard to refute the charges disseminated

against him.’” Quinn, 293 F.3d at 321 (quoting Ludwig v. Bd. of Trustees, 123 F.3d 404,

410 (6th Cir.1997). The hearing “need only provide an opportunity to clear one's name.”

Id. While Robinson has not had a formal name-clearing hearing, he has had the

opportunity to be heard and respond to the stigmatizing statements. The filings in the

civil proceedings in the Hamilton County Common Pleas were available to the public and

the hearings on the injunction motion were presumptively open to the public. Robinson

was represented by counsel in these proceedings. In the Ohio Ethics Commission

investigation, Robinson was able to submit favorable evidence, and was successful in

establishing that “[t]he City had several opportunities to halt the hiring process, including:

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when the City Attorney’s Office was consulted after Robinson applied for the position but

before he resigned from the Board; when the Board consulted with the City Attorney’s

Office regarding Robinson’s candidacy; when the City Attorney’s Office was present

during the Executive Session when the Board discussed the hiring of senior leadership

positions; and lastly, when the City verified Robinson’s employment eligibility prior to his

hiring as was stated in his offer of employment letter dated January 31, 2019.” (Doc. 7-

4, PAGEID 144-45). Robinson has not raised any deficiencies regarding the

constitutional adequacy of any of these proceedings, such as lack of notice or other

procedural safeguards. Therefore, the proceedings in the Hamilton County Court of

Common Pleas and before the Ohio Ethics Commission provided Robinson

constitutionally sufficient due process such that another name-clearing hearing is not

required. Accord Welling v. Owens State Cmty. Coll., 535 F. Supp. 2d 886, 891 (N.D.

Ohio 2008) (“Plaintiff, if deprived of a liberty interest in the sullying of his reputation by

Defendants, is entitled to one name-clearing hearing, a singular bite at the apple that

Plaintiff has already had. The Court will not sacrifice efficiency, economy, and fairness

and double up on the process due Plaintiff.”); Bowles v. Macomb Cmty. Coll., Case No.

20-13175, 2022 WL 1178504, at *4, n.5 (E.D. Mich. Apr. 20, 2022) (“To the extent that

Plaintiff again attempts to argue more than one state entity must provide him with a name-

clearing hearing for publication of the Investigative Summary, he has once again provided

no authority to support his position. . . . The court is not convinced that a singular

deprivation of a property or liberty interest warrants ‘doubling up’ the amount of process

due.”).

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Based on the foregoing, Defendants City of Cincinnati and the Cincinnati Health

Department’s Motion for Judgment on the Pleadings (Doc. 7) is GRANTED. There being

no additional matters pending for disposition in this matter, this matter is CLOSED and

TERMINATED from the active docket of this Court.

IT IS SO ORDERED.

/s/ Michael R. Barrett

Michael R. Barrett

United States District Judge

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