D'Amico v. City of Strongsville

59 F. App'x 675
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 24, 2003
DocketNo. 01-3901
StatusPublished
Cited by1 cases

This text of 59 F. App'x 675 (D'Amico v. City of Strongsville) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D'Amico v. City of Strongsville, 59 F. App'x 675 (6th Cir. 2003).

Opinion

PER CURIAM.

Mario D’Amico appeals the district court’s grant of summary judgment to the City of Strongsville. He claims violations of 42 U.S.C. § 1983 and his right to procedural due process under the Fourteenth Amendment to the United States Constitution, arising from a failure of the City of Strongsville to promote him within the Strongsville Fire Department. For the following reasons, we AFFIRM the judgment of the district court.

In November of 1998, the City of Strongsville notified its Civil Service Corn-[676]*676mission that it wanted to promote three people within the fire department to new captain positions. The may or of Strongsville, Walter Ernfelt, as appointing authority for the City, posted notification of the examination necessary to compete for the promotion. The posting occurred on November 23, and the test was administered as scheduled on February 6, 1999. On March 13, in accordance with Civil Service Commission procedures, an oral examination and interview followed. On May 3, Ernfelt requested an eligibility list from the Civil Service Commission, a list of those candidates with the highest combined scores. According to the City Charter, that list should have included the seven names of candidates with the seven highest combined scores.

On May 28, Ernfelt and Fire Chief Paul Haney interviewed each eligible candidate. The Mayor particularly liked candidates Janiak, Higginbotham, and Bakley. While Janiak and Higginbotham were the two highest scorers on the combined ranking, D’Amico was third. Bakley ranked behind D’Amico, the appellant in this action.

Mario D’Amico is a forty-seven year-old lieutenant in the Strongsville Fire Department. He has twenty-five years experience, and he has been employed by the Strongsville Fire Department since January of 1980. The Mayor reported that he chose Bakley over D’Amico because Bakley had more experience and training than D’Amico. Bakley had a bachelor’s degree, while D’Amico had only an associate’s degree. Bakley had paramedic certification and paramedic instructor certification, as opposed to D’Amico’s training as an emergency medical technician. Bakley also has HAZMAT training, and the Mayor had an opportunity to observe Bakley at a major toxic spill in town. Finally, Ernfelt reported that he did not feel D’Amico was “a team player” and that D’Amico had refused leadership positions in the past.

This court reviews a grant of summary judgment de novo. Miller v. Fidelity Security Life Insurance Company, 294 F.3d 762, 764 (6th Cir.2002). Summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. Proc. 56(c).

D’Amico’s claim is under 42 U.S.C. § 1983 for procedural due process violations. The rule in the Sixth Circuit, as articulated by Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir.1991) (internal citations omitted), states,

In this Circuit, then, a § 1983 plaintiff may prevail on a procedural due process claim by either (1) demonstrating that he is deprived of property as a result of established state procedure that itself violates due process rights; or (2) by proving that the defendants deprived him of property pursuant to a “random and unauthorized act” and that available state remedies would not adequately compensate for the loss.

We do not believe that D’Amico has satisfied either of these two elements of the cause of action. D’Amico must prove that he was deprived of a property right by the City of Strongsville’s promotion process itself or that Ernfelt acted in a random and unauthorized way. If D’Amico does believe that Ernfelt acted arbitrarily, then he needs to prove his remedies were inadequate.

Thus D’Amico’s argument must go to the process that denied him the promotion. The underlying question in this case, Strongsville says, is more basic. “To state a claim under section 1983, a plaintiff must show two things: (1) that the defendant acted under color of state law, and (2) that the defendant deprived the plaintiff of a federal right, either statutory or constitutional.” Bacon v. Patera, 772 F.2d 259, [677]*677263 (6th Cir.1985), citing Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). While Ernfelt and the rest of the City of Strongsville unquestionably acted under color of state law, the City claims D’Amico has failed to assert a protected statutory or constitutional right on which to ground his claim.

The Supreme Court has said, “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The Supreme Court went on to say. “Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law— rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Id.

In the case of D’Amico, that right would have to arise from the promotion process. This court has said, however, “If an official has unconstrained discretion to deny the benefit, a prospective recipient of that benefit can establish no more than a ‘unilateral expectation’ to it.” Med Corp., Inc. v. City of Lima, 296 F.3d 404, 410 (6th Cir. 2002). While the appointing authority’s discretion is not unfettered, he does have discretion to choose the best candidate among those certified to him, and it would appear that the only right to which D’Amico is entitled is not the promotion but to be considered for the promotion. “[T]his case involves the right to a promotion not a deprivation of continued employment. Generally, no property interest exists in a procedure itself.” Facer v. City of Toledo, 94 Ohio Misc.2d 1, 702 N.E.2d 1267, 1273 (1998). Section 1983 and the Fourteenth Amendment do not provide a cognizable remedy to claimants who merely allege they have failed to receive a job promotion. Shirokey v. Marth, 63 Ohio St.3d 113, 585 N.E.2d 407 (1992).

This court went on, in Med Corp., to say the relationship between the hiring authority and the candidate “must contain ‘mutually explicit’ understandings that establish an ‘entitlement’ to receive the benefit.” 296 F.3d at 410-411. In contrast to the case at hand, in Paskvan v.

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Bluebook (online)
59 F. App'x 675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/damico-v-city-of-strongsville-ca6-2003.