YOUNGSTOWN — The 7th District Court of Appeals has rejected a request from Taron Cunningham, who was fired five years ago as Youngstown’s community development agency director, to be reinstated to his old job with back pay.

The appeals court unanimously agreed with the April 18, 2023, decision by Judge John M. Durkin of Mahoning County Common Pleas Court that the city’s civil service commission acted properly when it upheld Cunningham’s March 2020 termination by Mayor Jamael Tito Brown.

“Since terminating Mr. Cunningham’s employment in 2019, the city has never wavered that the mayor and its civil service commission acted within their lawful scope of authority regarding Mr. Cunningham’s employment,” said Adam Buente, deputy law director. “The city is pleased that both the Mahoning County Court of Common Pleas and now the 7th District Court of Appeals affirmed the city’s decision. It is our hope that this finally marks the end of this needlessly prolonged litigation.”

Cunningham said he is “mulling an appeal to the Ohio Supreme Court from the 7th District’s decision because of overreaching legal fiction … transposed by this court is in the greater public’s interest to have a definitive legal answer.”

Cunningham contends the appeals court misinterpreted the commission’s rules in its decision.

Cunningham has 45 days from March 18, the date of the court’s decision, to seek an appeal to the Supreme Court. The Supreme Court would have to accept the case. The court accepts less than 10% of appeals requested.

CASE HISTORY

Cunningham initially was fired March 8, 2019, but that was overturned almost a year later by Judge Anthony D’Apolito of common pleas court, who ruled Feb. 26, 2020, that the commission made the wrong decision because Brown’s letter didn’t include the reasons for termination as required.

Brown then wrote a new letter March 12, 2020, to Cunningham firing him, retroactive to March 8, 2019, with details that were identical to a letter written Jan. 8, 2019, by T. Sharon Woodberry, Cunningham’s boss at the time, about him to Jeff Limbian, who was the city’s law director at the time.

Those letters outlined 26 issues with Cunningham including his “inability to adhere to policy and rules that govern the workplace, incompetence, poor communication skills, misrepresentation of facts in his course of work, general insubordination, temperamental and retaliatory behavior.”

Cunningham, who was paid $74,997.52 annually, filed with the appeals court seeking reinstatement and back pay between March 8, 2019, the date of the first termination letter, and March 12, 2020, the date of the second termination letter.

The appeals court denied Cunningham’s request three times, ruling an administrative appeal was first required.

The civil service commission held a three-day hearing, starting Oct. 25, 2021, to hear Cunningham’s arguments that the second Brown letter violated civil service rules. The commission upheld Cunningham’s termination at a Dec. 15, 2021, meeting, saying he failed to prove his case.

The commission’s decision stated that “a litany of personnel issues involving (Cunningham) and his ongoing working relationship with his supervisor, co-workers and outside partners” was revealed during the hearing. There were “disputes or incidents” with 13 former co-workers, including the mayor, according to its ruling.

Cunningham then appealed the second termination decision Jan. 13, 2022, in common pleas court.

Durkin ruled April 18, 2023, that the commission’s decision on Dec. 15, 2021, “was based upon reliable, probative and substantial evidence and is in accordance with law and is affirmed.”

Durkin wrote he “determined that the matter was not ripe to consider damages simply because there were procedural deficiencies.”

APPEAL RULING

That led to yet another appeal that the 7th District recently rejected with Cunningham seeking reinstatement and, at minimum, back pay for a little over a year.

The court wrote in its decision: “Although the trial court remanded and vacated the commission’s original decision, the judgment did not purport to vacate the removal. Just as a prisoner is not entitled to immediate release when a sentencing judgment fails to state the method of conviction, an employee is not entitled to reinstatement merely because a removal order fails to list the specific reasons previously detailed in the pre-disciplinary letter and reviewed at the pre-disciplinary hearing.”

The court also wrote that Cunningham’s contention that a second effort to fire him had to provide different reasons than the first “would force the city into an untenable position where they would be forced to retain, discipline free, any employee who has been proven in pre-disciplinary proceedings to fully merit removal, merely due to a procedural error in the removal order. The city would never be able to fire the employee for any of the reasons that support the defective removal order.”

It added: “This is the very definition of promoting form over function and is wholly unsupported by the law.”

Cunningham said the appeals court’s decision “has me, and should have other civil servant employees, concerned because of the zero times I received recourse and no separation of power between the administration and the Youngstown civil service commission at the trial level.”

Cunningham said the commission “refused to give credence to its laws when (it) denied installation of an impartial tribunal” after D’Apolito’s Feb. 26, 2020, decision.

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