COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59207 CHARLES O. COX, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION BOARD OF EDUCATION OF THE : CITY OF CLEVELAND, ET AL., : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 24, 1991 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 125,,554 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Alan Belkin SHAPIRO, TUROFF, GISSER & BELKIN 1200 Standard Building Cleveland, Ohio 44113 For defendants-appellees: Susannah Muskovitz CLIMACO, CLIMACO, SEMINATORE, LEFKOWITZ & GAROFOLI CO., L.P.A. The Halle Building 1228 Euclid Avenue Ninth Floor Cleveland, Ohio 44115 -2- NAHRA, P.J.: Charles O. Cox appeals from the trial court's entry of summary judgment on his 42 U.S.C. Sec. 1983 claim. For the reasons set forth below, we affirm. Cox has been employed by the Cleveland Board of Education since 1963 in a variety of teaching and administrative positions. Cox was in charge of several federally-funded educational programs from the late 1960s through 1982, including the Teacher Corps, Veterans in Public Service Program, and Career Opportunities Program. He also obtained his masters and doctorate degrees during that period. Cox stated in his deposition that federal funding for such programs was eliminated in 1982. In 1982, the board passed a resolution to non-renew the contracts of certain administrators and superintendents, including Cox. The resolution was passed in order to reorganize the board consistent with court orders in the school desegregation case of Reed v. Rhodes. Cox unsuccessfully applied for a number of board administrative jobs in 1982. He was assigned to teach remedial reading in the fall of 1982. After one semester of remedial teaching, Cox was asked to be Coordinator of the Teacher Cadre, a state program similar to the former Teacher Corps. After one year as Coordinator, he was appointed Acting Director of Staff Development for the board. In 1986, he was made Coordinator of Staff Development. Throughout -3- this period, Cox continued to apply for other administrative posts and was unsuccessful. In 1987, Cox filed a complaint against the board, its superintendent, treasurer, a board consultant, and the individual board members, alleging a number of constitutional violations. The case was dismissed for lack of prosecution, but was reversed and remanded on appeal. Cox filed an amended complaint in 1989 against the board and its members in their official capacities. The complaint asserted that the board failed to promote him in retaliation for his prior exercise of his rights of association and free speech in violation of 42 U.S.C. Sec. 1983. The trial court granted the defendants' motion for summary judgment, and Cox brought this timely appeal. Appellant's sole assignment of error reads as follows: THE LOWER COURT GRANTED DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DISMISSED THE AMENDED COMPLAINT PENDING IN THIS ACTION. THE LOWER COURT ISSUED NO OPINION OR FINDINGS OF FACT OR CONCLUSIONS OF LAW TO SUPPORT ITS DECISION. IN THIS APPEAL PLAINTIFF-APPELLANT MAINTAINS THAT THE RECORD BEFORE THE LOWER COURT CREATED GENUINE ISSUES OF MATERIAL FACT THEREBY PRECLUDING THE CONCLUSION THAT DEFENDANTS WERE ENTITLED TO JUDGMENT AS A MATTER OF LAW. PLAINTIFF- APPELLANT MAINTAINS THAT SUMMARY JUDGMENT WAS IMPROPERLY ENTERED IN THIS CASE AND THE DECISION OF THE LOWER COURT DISMISSING THE AMENDED COMPLAINT MUST BE REVERSED. Employees may not be denied employment or promotions because of constitutionally protected rights of free speech and freedom of association. See, e.g., Rankin v. McPherson (1987), 483 U.S. 378, 384, rehearing denied 483 U.S. 1056. The employee must show that the conduct or speech is "constitutionally protected, and -4- that his conduct was a `substantial factor' -- or, to put it in other words, that it was a `motivating factor'" in the adverse employment decision. Mt. Healthy City Bd. of Ed. v. Doyle (1977), 429 U.S. 274, 287. A 42 U.S.C. Sec. 1983 claim will fail where the employee does not establish a causal relationship between the speech and the adverse employment decision. Hamer v. Brown (8th Cir. 1987), 831 F.2d 1398. Furthermore, "[a] motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden or production at trial. (Celotex v. Catrett (1986), 477 U.S. 317, approved and followed.)" Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, paragraph three of the syllabus. Appellees' summary judgment motion asserted, inter alia, that appellant failed to state a cause of action for violation of his constitutional rights, and that the applicable two-year statute of limitations barred claims arising before March, 1985. Appellees attached affidavits, excerpts from appellant's deposition, and other documents in support of the motion. In response, appellant conceded that the two-year statute of limitations precluded relief for promotions denied prior to March, 1985, and contested appellees' other arguments. Appellant referred to "facts contained in [appellant's] deposition, [appellant's] interrogatory answers and the affidavit of Dr. James Coleman" in the memorandum, but attached only the affidavit. Some of the interrogatory answers were attached to appellees' summary judgment motion. A full transcript of -5- appellant's deposition is not in the record; excerpts of that deposition were attached to the summary judgment motion. Summary judgment was proper in this case because appellant failed to produce evidence of a causal relationship between his constitutionally-protected activity and the board's failure to appoint appellant to the positions he applied for from 1985-87. Appellant claims that he did not receive the appointments because he was perceived to be a Black Nationalist by the board. Appellant explained in his deposition that he served a volunteer organization with Black Nationalists in the 1960s. He claimed that in 1968, a board employee, now deceased, told the then- superintendent that appellant was the "thinker behind the Black Nationalists". Appellant stated that his supervisor called appellant to his office to fire him; railed at him about Black Nationalists; and told appellant that he would never get another administrative position with the board. Appellant was not fired, and did get other board positions. Appellant claims that the board labelled him as a Black Nationalist because of this incident, and that he was not appointed to "mainstream" administrative positions because of that label. Appellant attached the affidavit of James Coleman, special assistant to the board's superintendent, to his memorandum opposing summary judgment. Coleman stated that appellant was considered to be controversial and had been considered threatening in the 1960s by the board. He stated that appellant was consciously disenfranchised and blatantly disregarded by the -6- board during the 1982 reorganization. He also stated that he believed appellant was well-qualified for one of the administrative positions appellant sought. Coleman did not set forth how appellant was disenfranchised and disregarded. He also did not assert that the board did not promote appellant because of appellant's past association with Black Nationalists or other constitutionally-protected activities. Appellant's interrogatory answers only list jobs for which appellant applied, and do not contain evidence that appellant was not promoted because of protected conduct. The excerpts of his deposition also contain no evidence of a causal relationship between his political associations and his failure to be appointed to certain administrative jobs. Appellant stated that he originally thought the "administrative outposts" were good programs and productive for his career. He also stated that one board employee pushed him to get an advanced degree so he could come back and be a principal, a "mainstream" position. He stated that a board employee told him that other board employees told her unfavorable things about appellant, including that he was uncooperative; radical; aggressive; and not a team player. None of this evidence tends to establish that the board denied him any position for his political associations or speech. Thus appellant failed to meet his burden to show his "conduct" was a motivating factor in any adverse employment decision and therefore summary judgment was proper. -7- Appellant also claims that the trial court should have issued findings of fact and conclusions of law. "Findings of fact and conclusions of law . . . are unnecessary upon all other motions including those pursuant to . . . Rule 56." Civ. R. 52. Affirmed. -8- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN McMANAMON, J., and BLACKMON, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .