Case Information
*1
[Cite as
Hauser v. Dayton Police Dept.
,
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO ANITA HAUSER :
Plaintiff-Appellee : C.A. CASE NO. 24965 v. : T.C. NO. 09CV5371 CITY OF DAYTON : (Civil appeal from POLICE DEPARTMENT Common Pleas Court)
Defendant-Appellee :
and
MAJOR E. MITCHELL DAVIS :
Defendant-Appellant :
:
. . . . . . . . . .
O P I N I O N
Rendered on the 4th day of January , 2013. . . . . . . . . . .
JOHN J. SCACCIA, Atty. Reg. No. 0022217, 1814 East Third Street, Dayton, Ohio 45403
Attorney for Plaintiff-Appellee THOMAS M. GREEN, Atty. Reg. No. 0016361, 800 Performance Place, 109 N. Main Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
. . . . . . . . . .
VUKOVICH, J. (by assignment)
{¶ 1} Defendant-appellant Major E. Mitchell Davis appeals the decision of the Montgomery County Common Pleas Court which found that he was not entitled to statutory immunity on plaintiff-appellee Anita Hauser’s sex discrimination claim. The main issue on appeal is whether liability is expressly imposed by the unlawful discrimination statutes in Chapter 4112 so that the exception to political subdivision employee immunity under R.C. 2744.03(A)(6)(c) applies.
{¶ 2} Appellant argues that the unlawful discrimination statutes do not expressly impose liability upon managerial employees of a political subdivision. He alternatively contends that even if liability is expressly imposed upon managers and supervisors, he was not appellee’s manager or supervisor because, although he was the head of her department, others directly supervised her. For the following reasons, we conclude that the trial court correctly
determined that Major Davis’s immunity was lifted by R.C. 2744.03(A)(6)(c) because civil liability is expressly imposed upon managers or supervisors under R.C. 4112.01(A)(2) for their individual violations of R.C. 4112.02(A). As for his alternative argument, merely because a plaintiff has a more direct supervisor does not mean that individuals further up the chain of command are not considered managers or supervisors. The trial court’s judgment is hereby affirmed.
STATEMENT OF THE CASE In 2009, appellee Anita Hauser filed a complaint against the City of Dayton
Police Department and appellant, a major who was the head of Ms. Hauser’s detective division in the police department. One of the claims she raised was sex discrimination in violation of Chapter 4112, which defines various unlawful discriminatory practices. The defendants filed a motion for summary judgment on multiple grounds, raising immunity only for Major Davis. Major Davis urged that he had statutory immunity as an employee of a
political subdivision. He relied upon the Eighth District’s
Campolieti
case, which held that
a fire chief cannot be held individually liable for an employee’s discrimination claim
because the discrimination statute speaks in terms of “employers” and thus liability was not
expressly imposed upon the fire chief in order to invoke the RC. 2744.03(A)(6)(c) exception
to the immunity statute.
See Campolieti v. Cleveland
, 184 Ohio App.3d 419,
immunity in R.C. 2744.03(A)(6)(c) applies here because liability is expressly imposed under Chapter 4112, the employment discrimination statutes. Ms. Hauser pointed out that the Supreme Court has held that a supervisor or manager is individually liable for their own acts of employment discrimination under the definitions within Chapter 4112. See Genaro v. Central Transport, Inc. , 84 Ohio St.3d 293, 296-297, 300, 703 N.E.2d 782 (1999). She concluded that the Campolieti holding was incorrect because it failed to cite the Supreme Court’s Genaro case and failed to recognize that the statutory definition of an employer contained in Chapter 4112 includes any person acting directly or indirectly in the interest of the employer. Ms. Hauser cited cases from other courts which held that R.C. 2744.03(A)(6)(c) withdrew immunity from employees of a political subdivision facing claims for Chapter 4112 violations.
{¶ 7} Ms. Hauser alternatively argued that conduct arising from employment with a political subdivision is excluded from immunity by R.C. 2744.09. In his reply, Major Davis alternatively claimed that, even if the Campolieti case was incorrect, he was immune because he was not Ms. Hauser’s manager or supervisor. On December 7, 2011, the trial court granted summary judgment in part and
denied summary judgment in part. In pertinent part, the court found that Ms. Hauser’s sex discrimination claims remained for trial. In doing so, the trial court denied the immunity defense set forth by Major Davis and found that there existed a genuine issue of material fact as to whether he was her manager or supervisor. On December 27, 2011, Ms. Hauser and the defendants entered a stipulated
entry of voluntary dismissal without prejudice under Civ.R. 41(A)(1)(b). That same day, Major Davis filed a timely notice of appeal from the court’s denial of immunity, which remained a final order. See R.C. 2744.02(C) (“An order that denies a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order.”). [1]
ASSIGNMENT OF ERROR
{¶ 10} Appellant’s sole assignment of error provides: The trial court erred in denying Major Davis the benefit of immunity under R.C. 2744.03(A)(6). We begin by disposing of a brief alternative argument set forth in Ms.
Hauser’s response brief. [2] Ms. Hauser seems to suggest that Major Davis lacks immunity due to R.C. 2744.09(B). This statute provides that the immunity provisions in Chapter 2744 do not apply to civil actions by an employee (or the collective bargaining representative of an employee) against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision. R.C. 2744.09(B). See also R.C. 2744.09(C) (Chapter 2744 does not apply to civil actions by an employee of a political subdivision against the political subdivision relative to conditions or terms of employment). This argument is unfounded. Even the case she mentions under this
argument holds that R.C. 2744.09(B) does not apply to the portion of the suit naming
employees as defendants.
See Sampson v. Cuyahoga Metro. Hous. Auth.
, 8th Dist.
Cuyahoga No. 93441,
[2] Contrary to the contention in Major Davis’s reply brief, Ms. Hauser did
App.3d 250,
{¶ 13} Notably, division (A) of R.C. 2744.09 includes employees in the removal of immunity. See R.C. 2744.09(A) (providing that Chapter 2744 does not apply to civil actions that seek to recover damages from a political subdivision or any of its employees for contractual liability). However, the plain language of R.C. 2744.09(B) deals only with an action filed by the employee against the political subdivision. It does not remove immunity in an action filed by the employee against someone other than the political subdivision, such as Major Davis. See R.C. 2744.01(B), (F) (political subdivision and employee are not interchangeable in this chapter). Hence, Ms. Hauser’s alternative argument is without merit. We now turn to the main issue on appeal. In a civil action against an employee of a political subdivision to recover
damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the employee is immune from liability unless one of the following applies: (a) the employee’s acts or omissions were manifestly outside the scope of employment or official responsibilities; (b) the employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or (c) civil liability is expressly imposed upon the employee by a section of the Revised Code. R.C. 2744.03(A)(6)(a)-(c). From these three sections, it is only subdivision (c) that Ms. Hauser claims
is applicable as an exception to Major Davis’s statutory immunity. After setting forth an raise this argument in her response to summary judgment as well.
exception to immunity when civil liability is expressly imposed by statute, subdivision (c) explains:
Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon an employee, because that section provides for a criminal penalty, because of a general authorization in that section that an employee may sue and be sued, or because the section uses the term “shall” in a provision pertaining to an employee.
R.C. 2744.02(A)(6)(c). Ms. Davis argues that civil liability is expressly imposed by Chapter 4112,
the collection of statutes dealing with unlawful employment discrimination. Specifically, it shall be an unlawful discriminatory practice for any employer , because of the sex of any person, to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment. R.C. 4112.02(A). As used in Chapter 4112, an “employer” is defined as including the state, a political subdivision , any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of an employer . R.C. 4112.01(A)(2). See also R.C. 4112.01(A)(1) (definition of “person” includes political subdivisions, agents, or employee). “Whoever violates this chapter is subject to a civil action for damages,
injunctive relief, or any other appropriate relief.” R.C. 4112.99. This clearly and
unambiguously creates an independent civil action to remedy all forms of discrimination
prohibited by Chapter 4112.
Elek v. Huntington Natl. Bank
, 60 Ohio St.3d 135, 136-137,
the certified question of whether a supervisor/manager may be held jointly and/or severally liable with his employer for his conduct in violation of Chapter 4112. Genaro , 84 Ohio St.3d at 295, 703 N.E.2d 782. The Supreme Court noted that it would not follow federal cases interpreting the federal discrimination statutes because the definition of “employer” in federal discrimination statutes was not as broad as the definition in the Ohio discrimination statutes. Id. at 298-299. That is, the federal definition includes “a person engaged in an industry affecting commerce who has fifteen or more employees * * * and any agent of such a person,” id . at 299, whereas Ohio’s language broadly stated, “any person acting directly or indirectly in the interest of an employer,” id. at 298-299. The Supreme Court concluded by answering the certified question affirmatively, holding that individual managers and supervisors are liable for their own discriminatory conduct in the workplace. Id. at 300. Major Davis notes that immunity was not at issue in Genaro as the discussion involved the liability of managers and supervisors of a private company under the discrimination statute and thus the court did not specifically answer the question of whether civil liability is “expressly imposed” upon a political subdivision employee by Chapter 4112 as required by R.C. 2744.03(A)(6)(c). However, the Court did say that the language defining an employer in R.C. 4112.01(A)(2) was clear and unambiguous. Id. at 300. And, aforementioned, an employer who is liable for discrimination includes a political subdivision and any person acting directly or indirectly in the interest of an employer. R.C. 4112.01(A)(2). Major Davis relies on the Eighth District’s Campolieti case, which held that
a fire chief cannot be held individually liable for an employee’s discrimination claim
because the discrimination statute speaks in terms of “employers” and thus liability is not
expressly imposed upon the fire chief in order to invoke an exception to the immunity
statute.
See Campolieti
,
position at a political subdivision was not immune from liability in a discrimination action,
finding that liability was expressly imposed under Chapter 4112 by focusing on the
definition of employer in R.C. 4112.01(A)(2) and the Supreme Court’s cited
Genaro
holding.
State ex rel. Conroy v. William
, 185 Ohio App.3d 69,
{¶ 22}
Similarly, the Third District has held that three defendants who occupied
managerial or supervisory positions in a hospital, which was a political subdivision, were not
entitled to statutory immunity as liability was expressly imposed for disability discrimination
under Chapter 4112.
Hall v. Memorial Hosp. of Union City
, 3d Dist. Union No. 14-06-03,
employee of a political subdivision can be liable if she engages in an unlawful discriminatory practice while performing the function of an employment agency. Albert v. Trumbull Cty. Bd. of MRDD , 11th Dist. Trumbull No. 98-T-0095, 1999 WL 957066 (Sep. 30, 1999) (but then finding that the functions of the entity did not fit the definition of an employment agency). Ms. Hauser cites a case from this court, apparently to show the factual
background as no issue was raised concerning immunity or liability of supervisors of a
political subdivision under Chapter 4112 and thus the court did not issue a ruling on said
topics.
See Mitchell v. Lemmie
, 2d Dist. Montgomery No. 21511,
supervisors of a political subdivision under Chapter 4112. This conclusion is supported by
the above case law and the following litany of law. It is unlawful discrimination for an
employer to discriminate against an employee due to their sex, and whoever commits
unlawful discrimination is clearly subject to a civil suit for damages. R.C. 4112.02(A);
R.C. 4112.99;
Elek
,
level of report. (Hauser Depo. at 4). Her position is under his command. (Davis Depo. I at 8). He signed her request to attend a dog training program and handed in the request on her behalf. (Davis Depo. I at 40-41). Major Davis is the individual who denied her request to participate in a certain training program, which decision she claims was a result of discrimination. (Davis Depo. II at 24). Ms. Hauser received an order from Major Davis demanding she pay back money received for her travel expenses incurred in three months of out-of-town training because she did not maintain receipts (even though no other officer had ever been asked to keep receipts). (Hauser Depo. at 53-54; Davis Depo. I at 65, 104). She met with him multiple times to discuss the issue, and he sent word through her direct supervisor for her to produce receipts. (Davis Depo. I at 46, 56-58). His signature is on documents involved in initiating disciplinary charges against her alleging that she violated his order; although he states his name was placed on some documents even though he did not initiate them, such is not an immunity issue. (Davis Depo I at 93, 104-111; Davis Depo. II at 40-41, 47). He also ordered her to produce a report of all of her activity in 2009. (Hauser Depo. at 155). There is sufficient evidence that he could be considered a supervisor of Ms. Hauser, and thus, he could be held liable if he is factually found to have committed acts of discrimination.
{¶ 28} For the foregoing reasons, we conclude that the trial court correctly determined that Major Davis’s immunity was lifted by R.C. 2744.03(A)(6)(c) because civil liability is expressly imposed upon managers or supervisors, such as Major Davis, under R.C. 4112.01(A)(2) for their individual violations of R.C. 4112.02(A). In accordance, the trial court’s judgment is hereby affirmed.
. . . . . . . . . .
DONOVAN, J., concurs.
HALL, J., dissenting: Because I believe there is no statute that “expressly imposes” individual
liability on a manager or supervisor of a political subdivision for a claim of discrimination, the individual employee is statutorily immune from suit and the claimant’s action may be pursued only against the employer. This state has long had a codified policy that individual employees of a
political subdivision are immune from suit except in a few specific instances. Statutory immunity was instituted in response to the Ohio Supreme Court’s abrogation of judicially created municipal sovereign immunity in Haverlack v. Portage Homes, Inc ., 2 Ohio St.3d 26, 442 N.E.2d 749 (1982), holding in paragraph two of the syllabus: “The defense of sovereign immunity is not available, in the absence of a statute providing immunity, to a municipal corporation * * *.” The legislature soon enacted the immunity statute in 1985, generally defining when political subdivisions are immune from suit. From the beginning, public employees, as individuals, were granted greater immunity protection. Although a political subdivision, as an entity, could be liable where immunity did not extend, the individual employee was shielded by the terms of R.C. 2744.03(A)(6). The individual could be individually liable only if (1) he acted outside the scope of employment, (2) he acted maliciously, in bad faith or recklessly, or (3) liability was “expressly imposed” by the Revised Code. The last phrase is the crux of this matter. The long-standing policy of shielding individual public employees from
liability, as opposed to liability of the political subdivision which remains liable for acts of
its employees, should not be diminished by a statute that does not “expressly impose” civil
liability on the individual. R.C. 4112.02(A) does not expressly impose liability on the
individual. That statute states: “It shall be an unlawful discriminatory practice: (A) For any
employer
* * *” to discriminate against a protected class in employment. It is only through
the 4-3 Ohio Supreme Court’s decision in
Genaro v. Cent. Transp., Inc.
,
imposed” liability that would circumvent another statute, R.C. 2744.03(A)(6), it could have said so expressly. It did not. It is not our province to amend the General Assembly’s legislation. I dissent.
. . . . . . . . . .
(Hon. Joseph J. Vukovich, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
John J. Scaccia
Thomas M. Green
Hon. Mary L. Wiseman
Notes
[1] A voluntary dismissal of all defendants renders an interlocutory summary
judgment decision a nullity with no res judicata effect. Fairchilds v. Miami Valley
Hosp., Inc. ,