The Ohio Supreme Court declined to hear an appeal from Youngstown City Councilman Jimmy Hughes, a former city police chief who sued Youngstown State University claiming racial discrimination and retaliation for not considering him to be its police chief.

Percy Squire, Hughes’ attorney, said the decision may be appealed to the U.S. Supreme Court.

“Mr. Hughes has 90 days (from the Ohio Supreme Court’s decision) to appeal to the U.S. Supreme Court,” Squire said. “I don’t agree with the decision, but that’s the Ohio Supreme Court’s decision.”

Steve Irwin, spokesman for the Ohio Attorney General’s Office, which represents YSU in such lawsuits, said: “We believe the Supreme Court and the courts below made the correct decision in this case.

Mr. Hughes missed a

deadline applying for a job and his application was not considered.”

The state Supreme Court’s decision is the latest setback for Hughes, an African American who applied for the YSU police chief’s job March 23, 2017.

The job was first posted Feb. 15, 2017, and a four-person search committee met that March 3 and conducted interviews that March 16 and 17 with three applicants recommended March 23, the same day Hughes applied, for in-person interviews.

Hughes was among eight people — five white and three African American — who applied after March 10 and were not interviewed, according to court documents. Also, the attorney general’s filing stated the search committee members “did not know the races of any of the applicants, regardless of when they applied.”

‘A MISTAKE’

After learning his application wouldn’t be considered, Hughes sent an April 4, 2017, letter to YSU stating the failure to interview him was a mistake. YSU responded three days later saying Hughes wouldn’t be considered as his application was turned in after the initial review had started.

In court filings, Squire asserted the YSU selection process was a “sham” designed to hire a white man “with credentials inferior to those of” Hughes. Squire said YSU failed to inform people that it intended to stop considering applications after March 10, 2017, it didn’t extend any second-round interviews to black candidates, and the search committee consisted of only white people.

YSU announced April 17, 2017, that it had hired Shawn Varso, its interim police chief for the previous year and then a 21-year veteran of its force, as chief effective May 1 of that year. Varso is white.

YSU said it was its “standard practice” to keep job postings online until it officially filled the position.

YSU has denied Hughes’ claims all along, saying a selection committee didn’t consider him because by the time he submitted his application for chief, the committee had already completed a first round of interviews with applicants, scheduled a second round and had no need to add candidates.

At the time of Varso’s hire, Hughes was working as an intermittent police officer for more than 30 years, most recently as a dormitory officer on Fridays to Sundays.

Hughes spent 34 years with the city police department, including the last five as chief when he retired in 2011. Hughes was elected in November 2019 as 2nd Ward councilman and is serving his first four-year term.

ADVERSE ACTION?

“The question was whether the refusal of a selection committee to consider Mr. Hughes’ application after an internal deadline they didn’t publicize constituted an adverse employment action,” Squire said. “The court said it didn’t matter if he was discriminated against because the procedure we challenged wasn’t an adverse employment action. This was a particularly interesting issue that, unfortunately, the court didn’t seem to agree with me on.”

The attorney general filing stated: “Adoption of Hughes’ position would effectively strip every employer from being able to set deadlines of applications for employment because, even if they did, employers would be required to consider every application that came in for a vacancy until it was filled or else face the possibility of litigation.”

Hughes filed a charge of discrimination against YSU on May 25, 2017, with the Ohio Civil Rights Commission. The commission found no probable cause to file a complaint.

Hughes filed a federal lawsuit April 26, 2018, but both his attorney and the Ohio Attorney General’s Office agreed to dismiss the case Sept. 24 of that year and have it handled on the state level.

The Ohio Court of Claims sided Jan. 3, 2020, with YSU, granting it summary judgment and saying the court lacked jurisdiction to consider the claims and thus dismissed them. Also, the court determined the university “was able to demonstrate a legitimate non-discriminatory reason for not selecting Hughes.”

The Columbus-based 10th District Court of Appeals on June 22 upheld the lower court’s decision. The court of appeals added that Hughes failed to demonstrate a case of discrimination.

It wrote: “Simply put, YSU never considered Hughes’ application because Hughes applied after the internal deadline. Under these specific circumstances, we do not construe YSU’s failure to consider Hughes’ application to be an adverse employment action as is required for a prima facie case of discrimination.” Prima facie is a legal term meaning based on first impression.

dskolnick@vindy.com