Horen v. Bd. of Edn. of Toledo Pub. SchoolsHoren v. Bd. of Edn. of Toledo Pub. Schools
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Michelle Kranz for appellees Glenn S. Horen and DeLaney G. Horen.
Joanne Horen, pro se.
Adam Loukx, Acting Director of Law, and Keith J. Winterhalter, Senior Attorney, for appellants City of Toledo and Phillips Carroll.
Lisa E. Pizza, James P. Silk and Randy L. Meyer, for appellants Board of Education, Kellie Fuelling, Mary Therese Reuss, Jean Dykyj, Pamela Knox and Jennifer Spoores.
Albin Bauer, II, and Daniel Everson, for amicus Ability Center.
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HANDWORK, J.
{¶ 2} Summary judgment is proper under
{¶ 3} The only supporting evidentiary material that can be filed in support of or in opposition to a motion for summary judgment are the pleadings, answers to interrogatories, written admissions, affidavits, depositions, transcripts of evidence in the pending case, and written stipulations of fact.
{¶ 4} Affidavits submitted in conjunction with a summary judgment motion must be based upon personal knowledge, present facts that are admissible into evidence, and show that the affiant is competent to testify to the matters within the affidavit.
{¶ 5} In the case before us, appellees attached several documents to their memorandum in opposition to appellants’ motion for summary judgment that were not incorporated into an affidavit. They relied upon alleged facts in these documents to support the claims raised in their complaint. In addition, some of these claims are unsupported by any facts in the record. For example, appellees assert that the students in Educare were, and are, subject to medical experimentation. The only support for this
{¶ 6} Moreover, some of the “facts” offered by appellees are a misinterpretation of testimony, e.g. appellees state that Officer Phillip Carroll refused to release Delaney to her parents until an unnamed assistant superintendent told him to do so. In actuality, Carroll stated that he did not take Delaney out to her parents, who were parked in the school lot, because he was previously told that Joanne and/or Glen were required to pick up their child in the building. He was later told by his supervisor to take Delaney out to her parents. Appellees also assert that Dykyj allowed untrained individuals to perform physical therapy on medically fragile children. Dykyj testified, however, that she was allowed to delegate certain of her duties to other individuals, and that she trained these individuals to, for example, position a child in a “stander.” Dykyj further stated that some of the physical positioning of the children was not physical therapy. As a consequence, we find that only the following facts, as derived from depositions, affidavits, and an administrative due process proceeding1 that appellees filed in the federal system will be considered by this court.
{¶ 8} The salient facts of this case are as follows. Delaney was born with Wolf Hirschorn syndrome, also known as 4p-minus, which occurs when there is a partial deletion of the fourth chromosome. Because of this syndrome, Delaney has multiple disabilities, including, at the time this case arose, a limited ability to stand, to walk, and to feed herself. In 2003, and upon the recommendation of her preschool teacher, Delaney was placed in the elementary, not preschool, program at Educare, which provides care giving, educational opportunities, and nursing for “medically fragile” children. Medically fragile children have “extreme medical needs” that cannot be met in a
{¶ 9} The three classes at Educare are designated as primary, intermediate, and upper intermediate. These classrooms are housed in a wing of the former Heatherdowns Elementary School, which is currently owned by the University of Toledo. Educare is allowed free use of this space pursuant to the terms of the sale of the school to the former Medical University of Ohio (“MUO“). A school age child is assigned to one of the three classes based upon his or her physical and mental abilities rather than upon his or her chronological age. At the pertinent time in this case, a separate private pediatric preschool class (“PPC“) was operated by MUO in the same wing.
{¶ 10} For both the 2004-2005 and 2005-2006 school years, Delaney‘s teacher was Kellie Fuelling, who, at the time of her deposition, had taught at Educare for “eight or nine years.” Pursuant to a contract between TPS and the Toledo Federation of Teachers union, Fuelling and the other teachers at Educare cannot be required to arrive at school prior to 8:45 a.m. Classes commence at 9:00 a.m. and end at 3:15 p.m. The children are to be picked up, either by bus or their parents, at that time. The Educare staff is required to be out of the building by 3:30 p.m., that is, the building is closed at that time. Prior to May 2006, Delaney‘s parents always dropped her off at Fuelling‘s classroom and picked her up at that classroom.
{¶ 11} In the 2004-2005 school year, Fuelling accommodated appellees by arriving early and allowing them to bring Delaney to the classroom before 8:45 a.m.
{¶ 12} One of the goals of Delaney‘s IEP, as well as those of other children in Fuelling‘s class, was to teach her how to feed herself. Therefore, parents, including appellees, of children in Delaney‘s class would supply food for lunch, and often breakfast, to be used as part of their child‘s instructional program during school hours.
{¶ 13} Some time in the early months of 2006, appellees learned TPS had a breakfast program that started at 8:30 a.m. at Glendale-Fielbach. On May 5, 2006, appellees asked that Delaney be provided with such a breakfast at Educare. Initially, Reuss told appellees that Educare did not have a breakfast program. Subsequently, however, she sent appellees a letter indicating that the school did have a breakfast program and included a menu. At her deposition, Reuss testified that when she told appellees Educare had no breakfast program, she meant that there was no such program at 8:30 a.m. because, as noted infra, under the contract negotiated by the union, the teachers were not at Educare until 8:45 a.m. At Glendale-Fielbach School, however, the
{¶ 14} Appellants told appellees that breakfast would be provided to Delaney at 8:45 a.m. Appellees insisted, however, on bringing Delaney to Fuelling‘s classroom at 8:30 a.m. On May 10, 2006, Richard Jackson, the Superintendent of Elementary Schools for TPS, sent appellees a letter informing them of the fact that children could not be dropped off at Educare until 8:45 a.m. Jackson indicated that, for a fee, Delaney could stay in the PPC until the start of school or after the end of school at 3:15 p.m.. He also offered yellow bus service as transportation.
{¶ 15} On that same date, Officer Carroll received a complaint from Fuelling, who alleged that Scott Horen was violating Toledo Municipal Code 537.16, the safe school ordinance, by dropping his daughter off at school too early and picking her up too late. Fuelling also stated that Scott entered her classroom, looked at some personal papers on her desk, and answered her telephone. While Officer Carroll did not believe that Scott‘s actions constituted a violation of the ordinance, he decided to remain at the school until the time that Scott dropped off his daughter. Thereafter, Principal Knox told Fuelling to lock the door of her classroom until 8:45 a.m.
{¶ 16} When, on May 10, 2006, Scott arrived early with Delaney, Carroll, and Principal Knox were waiting in the common hallway outside the door leading to
{¶ 17} On May 17, 2006, Officer Carroll was present when Joanne Horen came to pick up Delaney from Educare. Joanne remained in the parking lot from 3:12 p.m. until 4:10 p.m. and made two calls to emergency services while she was waiting. On that same date, Joanne e-mailed, inter alia, Principal Knox and Acting Assistant Principal Spoores. In the e-mail, Joanne alleged that Spoores told Horen to leave Delaney in the hallway, presumably, without a paraprofessional, and that 24 hour notice must be provided by a parent before he or she could enter a classroom. The e-mail declared that it was 24 hour notice of the fact that either of Delaney‘s parents would visit Fuelling‘s classroom from May 17, 2005 until such time that Delaney was no longer a student at Educare. On that same date, Spoores told Joanne Horen that she was not to enter Educare or the classroom, but must leave Delaney in the hallway with a paraprofessional.
{¶ 18} At approximately 8:20 on the morning of May 18, 2006, Joanne left Delaney in the hallway leading to Educare with a pillow, but without the presence of a paraprofessional. Glen Horen began videotaping his daughter. Joanne was then informed of the fact that she could not enter the building to pick up her daughter at 3:15
{¶ 19} In the meantime, Glen Horen called 911 and stated that his wife was at the school but was not allowed to pick up Delaney. Based upon appellees’ actions, Officer Carroll called his sergeant, who came to Educare and informed Joanne that the Toledo Police Department would not send out a “crew” every time that she wanted to pick up her daughter. The sergeant also told Carroll to file a report and to issue a summons to Joanne Horen for child endangering. According to a May 18, 2006 e-mail sent by Glen Horen to a number of officials, including the TPS personnel involved in this case, he and Joanne would no longer enter the building to drop off or pick up their daughter. Glen attributed this decision to “intimidation by TPS personnel or their hired police officer, Phil Carroll * * *.”
{¶ 20} On May 22, 2006, appellees again refused to pick up Delaney, stating that they could not come into the building. Nonetheless, on May 24, 2006, and despite the fact that (1) she had been told not to enter Educare before 8:45 a.m. and (2) she was told not to enter her daughter‘s classroom, Joanne Horen entered that facility before that time and dropped Delaney off at Fuelling‘s classroom. As a result, Officer Carroll filed a charge of criminal trespass against her. It is undisputed that due to the ongoing animosity
{¶ 21} On May 26, 2006, appellees filed a complaint in the Lucas County Court of Common Pleas asking the trial court to issue a temporary restraining order and preliminary injunction precluding appellants from interfering in Delaney‘s right to participate in the TPS breakfast program at 8:30 a.m. and ordering them to provide assistance and supervision when Delaney participated in that program. Appellees also asked court to enter an order that prohibited appellants from interfering with the Horens’ right to pick up and drop off their daughter from her classroom and their right to enter that classroom. The trial court granted appellees’ motion on the date that it was filed. TPS assigned Delaney to Larchmont Elementary School the following school year.
{¶ 22} This case continued over the next few years with appellees filing first and second amended complaints. In their third amended complaint, which was filed on May 1, 2008, appellees set forth the following claims: (1) a civil rights violation pursuant to
{¶ 23} On February 13, 2009, the City and Officer Carroll filed their motion for summary judgment asserting that each was immune under
{¶ 24} Likewise, TPS and the individual defendants employed by TPS filed their motion for summary judgment claiming that they were entitled to summary judgment on each of the 16 causes of action set forth by appellees. Additionally, these appellants asserted that they were engaged in a governmental function, see
{¶ 25} On May 15, 2009, the trial court denied appellants’ motions for summary judgment. The court below set forth the alleged “facts” of this cause, most of which were those asserted by appellees, and arguments set forth by all of the parties. Without addressing Ohio‘s Sovereign Immunity Statute,
{¶ 26} TPS appeals that judgment and sets forth the following assignments of error:
{¶ 27} “1. The trial court erred in finding that appellants were not immune.
{¶ 28} “2. The trial court erred when it denied appellants’ motion for summary judgment with respect to the several causes of action set forth in parents’ third amended complaint.”
{¶ 29} The City and Officer Carroll also appeal the common pleas court‘s decision and assert that the following error occurred below:
{¶ 30} “The trial court erred when it denied the City of Toledo and Phillip Carroll immunity under
{¶ 31} In addition to the parties’ briefs, this court allowed the Ability Center of Greater Toledo (“Ability Center“) to file an amicus curiae brief in support of appellees. The Ability Center argues that TPS and its employees cannot avail themselves of the immunity provided in
{¶ 32} We shall first deal with the assignments of error set forth by TPS and its employees. In their first assignment of error, TPS, Fuelling, Knox, Spoores, and Dykyj contend that the trial court erred in denying their motion for summary judgment.
{¶ 33} While we note that the trial court did not specifically deal with the question of sovereign immunity, it denied appellants’ summary judgment motion in toto, thereby denying that aspect of the motion. We start with the proposition that the denial of a political subdivision‘s motion for summary judgment based upon sovereign immunity is a final, appealable order. Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, syllabus. “‘The determination of whether immunity is available is a question of law that is properly decided by the court before trial.‘” Pernell v. Bills, 6th Dist. No. L-09-1082, 2009-Ohio- 6493, ¶ 10, quoting Carpenter v. Scherer-Mountain Ins. Agency (1999), 135 Ohio App.3d 316, 330. The burden of proof is initially on the political subdivision to establish general immunity, and, when established, the burden then shifts to the plaintiff to demonstrate one of the exceptions to immunity applies. Ramey v. Mudd, 154 Ohio App.3d 582, 2003- Ohio-5170, ¶ 16. In a case where a political subdivision‘s motion for summary judgment is predicated upon sovereign immunity, and the trial court denies that motion based upon
{¶ 34} It is undisputed that a school district is a political subdivision for the purposes of
{¶ 35} “For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.”
{¶ 36} Governmental functions include “[t]he provision of a system of public education.” See
{¶ 38} Now that we have decided that TPS was engaging in governmental functions, the second step in our analysis requires us to consider the five exceptions to the general grant of immunity in
{¶ 39}
{¶ 40} “(A) political subdivision is liable for injury, death, or loss to person or property, when civil liability is expressly imposed upon the political subdivision by a section of the revised code, including, but not limited to, sections 2743.02 and 5591.37 of the Revised Code. 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 a political subdivision, because that section provides for a criminal penalty, because of the general authorization in that section that a political subdivision may sue and be sued, or because that section uses the term shall in any provision pertaining to a political subdivision.”
{¶ 41} Appellees rely on
{¶ 42} In Count 2 of their complaint, appellees cite to
{¶ 43} Due to the fact that we conclude that none of the exceptions to the grant of immunity to TPS exist, we need not consider the third step of the analysis, which provides defenses for political subdivisions. We therefore turn to a determination of whether the individual employees of TPS are immune from suit either in an “official capacity” or an individual capacity.
{¶ 44} Well-settled law holds that an action against an individual in his or her official capacity is actually an action against the entity for which the individual is an agent. State ex rel. Estate of Miles v. Village of Piketon, 121 Ohio St.3d 231, 2009-Ohio- 786, ¶ 23 (Citations omitted.). We have already determined that TPS is immune from
{¶ 45}
{¶ 46} We therefore turn to a consideration of the remaining exceptions in
{¶ 47} As applied to the situation before us, there is no evidence in the record of this cause demonstrating that an individual defendant‘s behavior was outside the scope of his or her employment in acting as teacher, principal, acting assistant principal, head supervisor, or physical therapist. The steps taken by the named individuals were attempts to ameliorate a situation in which appellees insisted that their child be provided breakfast at 8:30 a.m. and who became increasingly aggressive in their reaction to the rule that Educare could not supply breakfast at that time, thereby necessitating some new rules for the “drop off” and pick up of Delaney.
{¶ 48} Moreover, we cannot say that any of the acts taken by the individual employees in this case were done “with malicious purpose, in bad faith, or in a wanton or
{¶ 49} Wanton misconduct occurs when the employee fails to exercise any care; it implies a disposition to perversity and a failure to exercise care toward those to whom care is owed. Fabrey v. McDonald Police Dept. (1994), 70 Ohio St.3d 351, 356, 639 N.E.2d 31. Finally, an employee is “reckless” when he or she perversely disregards a known risk. Recklessness requires more than mere negligence. The employee must be conscious of the fact that his or her conduct will, in all probability, result in an injury. O‘Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, paragraph three of the syllabus.
{¶ 50} Appellants did not allege that the individual TPS employees acted with malicious purpose, in bad faith, wantonly, or acted recklessly in Counts 3, 6, 8, 9, 11, 12, 14, 15, and 16. Thus, the TPS employees named in these counts were entitled to summary judgment on the issues raised therein.
{¶ 52} Furthermore, there is no evidence in this record to show that the TPS defendants or Officer Carroll acted in bad faith in failing to allow Delaney to have her breakfast at Educare at 8:30 a.m. As set forth infra, Educare was not open to the students until 8:45 a.m. due to a union contract. Indeed, Delaney had the opportunity of learning to feed herself during school hours. Thus, the named employees were not acting with any dishonest purpose, ill will, or intent to deceive appellees when they informed them of the fact that Delaney could participate in the breakfast program only at that time. On his part, Officer Carroll was simply enforcing the rule set by TPS and did not display the requisite intent to show bad faith.
{¶ 54} In Count 4, which is captioned “Negligence,” appellees maintain that the individual TPS defendants acted with willful, wanton, and malicious conduct in failing to “protect Delaney from exploitation, fear, and to prevent her from being placed in harm‘s way.” Presumably, this allegation is related to the purported, but unsupported by facts, claim that Delaney was the subject of medical experimentation. Otherwise, there is no evidence in the record showing that the TPS employees failed to exercise any care toward Delaney or intentionally sought to inflict serious harm on her without justification.
{¶ 55} Count 5 contains allegations that Fuelling and Reuss acted “willfully, wantonly, and maliciously” by exploiting Delaney. The acts supporting this allegation are: Fuelling locked her classroom door, placed paper on the door window, told the Horens that they would have to provide her with 24 hour notice before entering the classroom, and allowed “medical and/or nursing students access to Delaney for
{¶ 56} Count 7 argues that, among others, Knox, Fuelling, Reuss and Spoores maliciously combined to engage in a civil conspiracy to injure appellees. A civil conspiracy is defined as “‘a malicious combination of two or more persons to injure another person in person or property, in a way not competent for one alone, resulting in actual damage.‘” Kenty v. Transamerica Premium Ins. Co. (1995), 72 Ohio St.3d 415, 419, quoting LeFort v. Century 21-Maitland Realty Co. (1987), 32 Ohio St.3d 121, 126. Such a claim requires an underlying tortious act that causes an injury. Gator Dev. Corp. v. VHH, Ltd., 1st Dist. No. C-080193, 2009-Ohio-1802, ¶ 31. If there is “no underlying tortious act, there is no actionable civil conspiracy claim.” Here, we find that there was no underlying tortious act; therefore, appellees’ civil conspiracy claim must fail.
{¶ 58} Count 10 also maintains that all of the individual appellants, including Officer Carroll, acted in bad faith in: (1) refusing to allow the Horens, either individually or together, to enter Educare before 8:45 a.m.; (2) denying Glen and Joanne access to Delaney‘s classroom; (3) making “false, misleading or incorrect police reports and reports to Children Services Bureau;” (5) threatening Glen and Joanne with child endangering and criminal trespass charges; (6) requiring Delaney to eat in a public hallway even after a court order allowed her to have breakfast at 8:30 a.m.; (7) accusing Glen of breaking into Educare to steal his daughter‘s records; and (8) threatening Joanne‘s employment “through frivolous unjustified actions.”
{¶ 59} There is no evidence in the record of this cause tending to show that the individual appellants engaged in either of the activities set forth in allegations (7) or (8) or that they required Delaney to eat breakfast in the hallway after the court order. Even if there were such actions, there was no evidence presented below demonstrating that any of these individuals acted with a dishonest purpose, moral obliquity, or conscious
{¶ 60} In Count 13, appellees allege, in essence, that the individual TPS defendants acted with utter disregard and recklessness and fraudulently misled the Horens by concealing the fact that Educare was reported as a TPS Preschool and that Delaney was reported as attending Glendale-Fielbach School, a facility where appellees urge that the discrimination against appellees could not occur due to TPS policies. To repeat, recklessness is the perverse disregard of a known risk. Further, each of the TPS employees in this case had to be conscious of the fact that her conduct would, in all probability, result in an injury.
{¶ 61} There is no evidence in the record of this cause that the named TPS employees made any misrepresentations, reckless or otherwise, concerning the title of Educare as a TPS Preschool or concealed the fact that Delaney was reported as attending Glendale-Fielbach. Here, the only potentially viable, that is, supported by the evidence in the record, discriminatory acts alleged by appellees are that appellants would not allow Delaney to have breakfast at 8:30 a.m. and the subsequent regulation of appellees’ ability to enter the building and Fuelling‘s classroom. The facts in the evidentiary materials offered by the parties, make clear that Delaney would not have been deprived of breakfast--she would be given breakfast at 8:45 a.m. or during school hours. Thus, the
{¶ 62} As a result, and for all of the foregoing reasons, the trial court erred in denying appellants’ motion for summary judgment on Counts 1 through 13 on the basis that TPS and the individual TPS employees were immune from liability under
{¶ 63} Appellants’ first assignment of error is found well-taken. Finding that appellants are immune from civil liability renders Count 14, appellants’ loss of consortium claim, and Count 15, appellees’ request for punitive damages moot.
{¶ 64} In their second assignment of error, appellants argue that the trial court erred in failing to grant their motion for summary judgment on the merits of all counts in the complaint. Finding that appellants’ motion for summary judgment should have been granted and all counts against them dismissed, we find appellants’ second assignment error moot.
{¶ 65} We now turn to a determination of the assignment of error set forth by the City and Officer Carroll. These appellants argue that the trial court erred when it denied their motion for summary judgment based upon sovereign immunity.
{¶ 66}
{¶ 67} “(a) The provision of or non-provision of police * * * services or protection;
{¶ 69} It is undisputed that the protection of TPS personnel and property was the purpose of Officer Carroll‘s assignment as a TPS human resources officer. Thus, he was engaged in a governmental function. Consequently, absent any of the exceptions set forth in
{¶ 70} The City cannot be held liable under (1)
{¶ 71} Because none of these exceptions exist, we need not consider the defenses provided to a political subdivision in
{¶ 73} Officer Carroll is not named in Counts 4, 5, 6, 12, and 13. We have discussed Officer Carroll‘s individual immunity as an employee of a political subdivision as it relates to Counts 2 and 10. Counts 14 and 15 are moot as set forth infra. Even though he is named as acting in bad faith in Count 1 of appellees’ complaint, there is no evidence in the record of this cause establishing that Officer Carroll had any part in determining when Delaney could or could not have her breakfast. Despite the fact that Officer Carroll is named in Count 3 of the complaint as one of the defendants who refused to provide Delaney with due process under Section 16, Article I Ohio Constitution, appellees do not allege that Officer Carroll did so with malicious purpose, bad faith, or in a wanton or reckless manner. The same is true of Count 9, which complains of injury to appellees’ reputations.
{¶ 74} In Count 7, appellees contend that, among others, Officer Carroll maliciously conspired to cause injury to appellees. As set forth above, malice requires that an individual engages in a “willful and intentional design to harm another by
{¶ 75} Officer Carroll is named in Count 8 as “willfully and intentionally” writing or causing to be written, a false police report identifying appellees as criminal trespassers at Educare “and/or entering their disabled daughter‘s classroom three minutes prior to the time that Officer Carroll determined was correct.” Assuming that an allegation of “willfully and intentionally” is the same as alleging a “malicious purpose” or malice, the facts set forth in the record fail to establish that Officer Carroll‘s actions were unlawful or unjustified. In particular, due to the dispute over the time that Delaney could receive breakfast and allegations that Glen Horen looked at items on Fuelling‘s desk and answered her telephone, Educare set a rule that appellees were not to enter the building until 8:45 a.m. and were not to enter Fuelling‘s classroom. In an attempt to keep the peace, Officer Carroll was simply following the rules set by Educare in preventing appellees from entering the building or Fuelling‘s classroom. When Joanne Horen insisted upon entering, the officer was justified in filing the criminal trespassing charge. In addition, we cannot say that Officer Carroll acted with malicious purpose in filing a charge of child endangering. In that instance, he was acting upon the order of his
{¶ 76} In their amicus curiae brief, the Ability Center of Greater Toledo (“Ability Center“) sets forth the following “Issues for Review“:
{¶ 77} “(1) Did the trial court err in determining that issues of material fact exist in this case sufficient to preclude Summary Judgment in favor of Appellant Board of Education.
{¶ 78} “(2) Is Appellant Board of Education insulated from suit by
{¶ 79} The Ability Center relies on the “facts” as set forth in appellees’ brief related to the purported “medical experimentation” carried on at Educare as the basis for their issues for review. In fact, the Ability Center cites to appellees’ memorandum in opposition to appellants’ motion for summary judgment for these “facts“, e.g., Educare is a private institution/“pediatric medical facility“/“medical research site” and that Delaney is “the subject of medical research.”
{¶ 80} That said, the Ability Center argues in its first issue for review that this cause is governed by federal law; therefore, under
{¶ 81} Under their first issue for review, the Ability Center also argues that
{¶ 82} In their second issue for review, Ability Center reiterates appellees’ assertion that under the exception to immunity found is
{¶ 83} The judgment of the Lucas County Court of Common Pleas is reversed. Appellees are ordered to pay the costs of this appeal pursuant to App. 24(A).
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J.
Arlene Singer, J. CONCUR.
Keila D. Cosme, concurs, in part, and dissents, in part.
COSME, J.
{¶ 84} I concur with the majority opinion in finding that TPS and the City are both political subdivisions subject to sovereign immunity, and that none of the exceptions under
{¶ 85} I also concur with the majority opinion in finding, as a matter of law, that Fuelling, Reuss, Dykyj, Knox, Spoors, and Officer Carroll were entitled to summary judgment as to the allegation of disability discrimination. Although political subdivisions and their employees may not discriminate under