[Cite as Townsend v. Kettering, 2022-Ohio-2710.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY DARRIN TOWNSEND : : Plaintiff-Appellee : Appellate Case No. 29376 : v. : Trial Court Case No. 2019-CV-2924 : CITY OF KETTERING, et al. : (Civil Appeal from : Common Pleas Court) Defendants-Appellants : : ........... OPINION Rendered on the 5th day of August, 2022. ........... JOHN R. FOLKERTH, JR., Atty. Reg. No. 0016366, 3033 Kettering Boulevard, Point West II, Suite 111, Dayton, Ohio 45439 Attorney for Plaintiff-Appellee DAWN M. FRICK, Atty. Reg. No. 0069068 & JAMES M. SCHIRMER, Atty. Reg. No. 0101271, 8163 Old Yankee Street, Suite C, Dayton, Ohio 45458 Attorneys for Defendants-Appellants ............. EPLEY, J. -2- {¶ 1} Fire Chief Thomas Butts and Assistant Chief Michael Miller appeal from a judgment of the Montgomery County Court of Common Pleas, which denied their motion for summary judgment on Darrin Townsend’s race discrimination and retaliation claims on sovereign immunity grounds. For the following reasons, the trial court’s judgment will be affirmed. I. Facts and Procedural History {¶ 2} Townsend, an African-American, has been employed by the Kettering Fire Department (KFD) as a firefighter/paramedic since 2003. In 2016, KFD had a fire captain vacancy. Seven Kettering firefighters, including Townsend, applied for the position. The candidates were ranked based on their cumulative score on five weighted components: (1) a written examination; (2) an assessment center score; (3) administrative review (AR) points; (4) seniority points; and (5) annual performance evaluation (APE) points. The written examination and assessment center evaluation were administered by individuals independent of KFD, and Townsend agrees that KFD had no control over those components, which were worth a possible maximum of 100 points. The APE score, worth up to 10 points, was based on past performance evaluations, and the AR score, worth up to 20 points, was assigned by the fire chief based on “information from the administrative review process, oral boards, [the chief’s] own review of evaluations and his personal knowledge of the candidates[.]” {¶ 3} Based on the candidate’s total scores, Townsend ranked second on the 2016 captain vacancy promotion list, behind Shawn Morgan, who is Caucasian. -3- Name Written A.C. Weighted A.R. Seniority APE Total Rank Exam (60%) Combined Score (Max 10) (Max (Max 140) (40%) (Max 100) (Max 20) 10) Morgan 82.58 86.5 84.932 14.222 10 8 117.154 1 Townsend 80.65 95.2 89.38 11.000 9.4 6 115.78 2 E.H. 82.58 86.0 84.632 18.000 6.1 7 115.732 3 M.D. 91.61 80.0 84.644 15.888 6.4 6 112.932 4 J.M 71.61 82.5 78.144 13.333 10 7 108.477 5 J.W. 84.52 79.5 81.508 14.111 6.7 6 108.319 6 K.H. 80.65 78 79.06 13.222 6.4 6 14.682 7 In accordance with KFD policy, Chief Butts interviewed the three highest-scoring candidates on the promotion list, and he had the discretion to choose from among those individuals which candidate to promote. Butts selected Morgan, who was ranked number one on the list, for promotion to captain. {¶ 4} According to Townsend, Chief Butts, Assistant …
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