Scottie Bagi v. City of Parma

714 F. App'x 480
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 26, 2017
Docket16-4011
StatusUnpublished
Cited by2 cases

This text of 714 F. App'x 480 (Scottie Bagi v. City of Parma) 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
Scottie Bagi v. City of Parma, 714 F. App'x 480 (6th Cir. 2017).

Opinion

HELENE N. WHITE, Circuit Judge.

Plaintiffs-Appellants Scottie Bagi and Gary Vojtush (collectively “Plaintiffs”) appeal the district court’s grant of summary judgment to Defendant-Appellee the City of Parma, Ohio. For the reasons set forth below, we AFFIRM.

I. Background

Plaintiffs are firefighters and medics for the City of Parma Fire Department (PFD). Bagi has held this employment since 1999, and Vojtush since 1995. The PFD maintains a “Tactical Emergency Medical Specialist” (TEMS) unit consisting of specially trained firefighter medics who provide emergency medical support to the city police department’s SWAT team in high-risk situations. In the event of an injury, TEMS unit members treat the police first, then innocent bystanders, then criminals. The record does not indicate the specific benefits,, if any, that accrued to members of the TEMS unit, but in the grievance letter at the center of this litigation Bagi asserted, “These SWAT positions are important to all of us. It is a way to both enjoy and advance our careers.” (R. 54-3, PID 267.)

The TEMS unit was first formed sometime in the 1990s but was disbanded around 1999. In 2004, Fire Chief French directed Captain Poznako to reinstate the TEMS unit. Poznako adopted a test for interested candidates, drawn from a third-party test bank (2004 test). It was not a civil service test and there is no allegation that it was required to be; ultimately, French had discretion to appoint whomever he wanted to the TEMS unit. Poznako emailed the firefighters on February 13, 2004, announcing the 2004 test. Among the minimum qualifications he specified in the email was two years of service with the PFD. Poznako administered the 2004 test, which Bagi did not pass.

Some firefighters perceived unfairness in the way the 2004 test was administered, and in support of Plaintiffs’ opposition to the City of Parma’s motion for summary judgment, Bagi declared that Poznako told Bagi that members of the city’s SWAT team demanded that a certain firefighter be chosen for the TEMS team. Firefighter Whelan testified that multiple firefighters selected the same wrong answers for a number of questions on the 2004 test and therefore credit was ultimately given for more than one answer to those questions. As a result, some firefighters’ scores rose and some passed who had not before. Bagi’s score increased, but he still did not pass. In 2009, Bagi brought his concerns about the 2004 test to the attention of the new union president, Patrick Lovejoy. Lo-vejoy investigated and found no improprieties in the administration of the 2004 test.

A TEMS unit member was removed in 2009. In 2011 the PFD held a second TEMS unit test (2011 test) to fill the empty spot and an additional position. Poznako emailed the PFD firefighters on June 6, 2011 to announce the test. Among the minimum qualifications he specified in the email was three years of service with the PFD. (The years-of-service requirement was increased by one year to match the police department’s years-of-service requirement for membership on the SWAT team.) Bagi promptly responded that he would like to take the test. On June 27, Poznako emailed all the firefighters who had expressed interest in the test, including Bagi but not Vojtush, to notify them of an upcoming informational meeting. Bagi did not attend, but he emailed Poznako the next day requesting any information he would need to know for the test. Poznako set ■ aside study materials for Bagi, but Bagi did not pick them up. Bagi asked firefighter Fetter for the study materials and received those. On July 12, Bagi emailed Poznako asking who would be creating the test. He later testified that he wanted to ensure that there was no bias such as he had perceived in the past.

The test was held in August 2011. Again, it was not a civil service test. It consisted of five sections: “a written, a practical, a physical, run report documentation, and then also an interview,” as it had in 2004. (R. 56-1, PID 722-23.) The written “run reports” that were evaluated were those that firefighters had previously prepared on the job following calls. The written test was multiple choice. Whelan, who took the 2004 test, selected the written and physical portions of the 2011 test, and scored those portions of the test. Firefighter Frantz evaluated the run reports, as he had done in 2004. His grading apparently was not blind. Firefighter Bazemore and a Dr. Schikowski graded the practical trauma assessment. The police SWAT commander was in charge of the oral interview and only police were involved in grading it. Whelan calculated the total scores. The interview portion involved some measure of subjectivity. Poznako had a role in administering the test, although he does not appear to have had any direct role. He was present in the room during interviews, but he did not take part. He did not take part in writing the written test, did not receive the answer key, and first saw it only a day or two before it was given. Bagi did not take the test.

Before the test, on about July 8, 2011, Bagi began drafting a letter expressing his concerns that the test would not be administered fairly. He had a friend who is a lawyer proofread the letter. At the time he drafted the letter, the information Bagi had about the 2011 test included the materials Fetter provided him and Bagi’s email correspondence with Poznako concerning the test. The letter states:

July 20, 2010
To Chief French,
In the near future, a member of this Parma Fire Dept will be selected for the SWAT team. It is important that an issue regarding the selection process be brought to your attention.
The previous testing procedure for SWAT selection have [sic] given many of us great pause. We were concerned previously that there was bias in the SWAT selection by Captain Poznako. Specifically, friends or close associates with Captain Pozanko [sic] seemed to be selected when they were universally believed not to be the best candidates through both objective and subjective criteria. However, they made it onto the SWAT team regardless.
Captain Poznako has created a test for the SWAT team. This is a test made up by Captain Pozanko [sic] and is not a standardized test. Many of us have put significant hours into studying for this test only to find we were not selected. All of us fully understand there is a realistic high risk that we will not be the best performer on the test and will not be accepted onto the SWAT team. That is acceptable to all of us.
However, there has been discontent within your ranks as many are under the belief that Captain Poznako gave the answers, or at least identified the areas to specifically study, to his friends and close associates so they could perform well on the test. This is horribly improper and demoralizing for us.
This letter is being written in advance of the next test. Captain Poznako is a close friend of FF Fetter, Enclosed you will find a picture of them together at FF Fetter’s daughter’s graduation party. They openly acknowledge to be friends—which is not in any way improper. FF Fetter is a good fireman and a likeable person. However, objectively he only has five years experience with the Department.

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714 F. App'x 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scottie-bagi-v-city-of-parma-ca6-2017.