909 N.E.2d 642 | Ohio Ct. App. | 2009
{¶ 1} This is an appeal from the decision of the Cuyahoga County Common Pleas Court sua sponte dismissing the remaining claim in a civil action, a counterclaim that the appellant, Annette Miller, contends sufficiently stated a claim for retaliation against her participation in a protected activity in violation of R.C.
{¶ 2} On August 7, 2006, Hughes filed a pro se complaint in this case, accusing Miller of defamation. His complaint alleged that Cuyahoga County Community College ("TRI-C") employed both Hughes and Miller as certified police officers and that both officers were assigned the same shift. According to the complaint, Miller filed a formal, internal complaint with TRI-C on August 5, 2005, which stated that, while at work at TRI-C, Hughes had committed various acts of sexual harassment against her and two other female TRI-C employees. The complaint also alleged that TRI-C conducted an extensive investigation that commenced on August 8, 2005, and concluded on September 14, 2005. Hughes alleged that Miller's action in filing the internal complaint, which according to Hughes falsely accused him of on-duty intoxication and sexual harassment, was done with malice, was defamatory per se, and resulted in injury to his reputation and profession.
{¶ 3} On September 27, 2006, Miller, through her first retained counsel, simultaneously filed a compulsory counterclaim with jury demand setting forth an alleged violation of R.C.
{¶ 4} Miller alleged in her counterclaim that Hughes filed the complaint for defamation against her in retaliation for her action of filing the internal complaint against him. Miller's motion to dismiss Hughes's complaint for defamation under Civ. R. 12(B)(6) argued that the complaint was filed one year and three days after the alleged defamatory conduct occurred, and additionally, that Miller had an absolute privilege to make the statements that Hughes complained to be defamatory. *443
{¶ 5} Hughes retained counsel and filed a reply to Miller's counterclaim on October 27, 2006, with leave of court having been granted.
{¶ 6} On November 20, 2006, the following entry of the court was filed.
Defendant's motion # 1980643, filed 9-27-06, motion to dismiss and compulsory counterclaim, is hereby granted as Plaintiff has failed to state a claim for which relief can be granted in that Plaintiff's claims for libel and slander are time-barred. Final. Costs to Plaintiff.
{¶ 7} Hughes did not appeal the dismissal of his complaint.
{¶ 8} On February 1, 2007, Miller filed a motion for relief from judgment pursuant to Civ. R. 60(A) and (B), seeking relief from the portion of the court's November 20, 2006 entry inadvertently dismissing her compulsory counterclaim.
{¶ 9} On March 12, 2007, the following entry of the court was filed, which reads:
Defendant's motion [# 2060721] filed 2-1-07, Motion for Relief from Judgment, is hereby granted. Defendant Miller's Counterclaim against Plaintiff Ralph Hughes is reinstated to this Court's active docket.
{¶ 10} Original counsel for both Hughes and Miller subsequently withdrew from the case. Miller retained new counsel, who filed a notice of appearance on April 23, 2007. Hughes returned to his original status as a pro se plaintiff on July 19, 2007.
{¶ 11} The trial court ruled on numerous motions filed by both parties the last six months of 2007, which are not relevant to the instant appeal, and also scheduled the matter for final pretrial on November 27, 2007, and jury trial on December 10, 2007. Hughes had also demanded a jury trial on Miller's counterclaim.
{¶ 12} The jury trial on Miller's counterclaim did not go forward on December 10, 2007, as the following entry of the court was issued and filed on December 11, 2007:
[Date 12/10/07] Pursuant to Civil Rule 12(B)(6), this Court hereby gives notice of its intent to dismiss, sua sponte, counterclaim Plaintiff Annette Miller's claim for failure to state a claim upon which relief be granted. Any brief in opposition to this order shall be filed on or before 1-14-08. Any reply is due on or before 2-4-08.
{¶ 13} Miller, through counsel, filed a response with brief in opposition to the trial court's sua sponte notice of intent to dismiss on January 7, 2008. Hughes filed his pro se response with brief in support of the trial court's sua sponte notice of intent to dismiss Miller's counterclaim on February 1, 2008. *444
{¶ 14} The trial court dismissed Miller's counterclaim by the following entry filed on May 13, 2008.
[Date 5/5/08] Pursuant to Civil Rule 12(B)(6), and this Court's order dated 12-10-07, this Court hereby dismisses, sua sponte, Counterclaim Plaintiff's claims for failure to state a claim upon which relief can be granted. Final. Costs to each party.
{¶ 15} Miller timely appealed the trial court's decision to sua sponte dismiss her counterclaim for failure to state a claim and presents the following sole assignment of error for review.
Assignment of Error I
The trial court erred when it sua sponte dismissed appellant's counterclaim for failure to state a claim upon which relief could be granted.
STANDARD OF REVIEW
{¶ 16} "[A] court may dismiss a complaint on its own motion pursuant to Civ. R. 12(B)(6), failure to state a claim upon which relief can be granted, only after the parties are given notice of the court's intention to dismiss and an opportunity to respond." Columbus Metro. Hous. Auth. v.Flowers, Franklin App. Nos. 05AP-87 and 05AP-372,
{¶ 17} As recently stated by this court inNorthPoint Properties v. Petticord,
Our standard of review on a Civ. R. 12(B)(6) motion to dismiss is de novo. Greeley v. Miami Valley Maintenance Contrs. Inc. (1990),
49 Ohio St.3d 228 [551 N.E.2d 981 ] * * *. A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. [1992],65 Ohio St.3d 545 [,605 N.E.2d 378 ] * * *. Under a de novo analysis, we must accept all factual allegations of the complaint as true and all reasonable inferences must be drawn in favor of the nonmoving party. Byrd v. Faber (1991),57 Ohio St.3d 56 ,565 N.E.2d 584 .
{¶ 18} Accepting the factual allegations in Miller's counterclaim as true, we must determine a question of law — whether the trial court's sua sponte Civ. R. 12(B)(6) dismissal was appropriate. Perrysburg Twp. v.Rossford,
ALLEGATIONS OF THE COUNTERCLAIM
{¶ 19} Miller generally alleged in her counterclaim that the facts set forth in support of her counterclaim against Hughes arose out of the same set of operative facts as Hughes's complaint.
{¶ 20} Specific factual allegations set forth in Miller's counterclaim are as follows:
Both Hughes and Miller are now, and were at all times relevant to the allegations made herein, employees of Cuyahoga Community College (TRI-C) in Cuyahoga County. * * *. Miller, pursuant to the employment policies of TRI-C, engaged in protected activity by filing an internal complaint of sexual harassment with the Human Resources Department of TRI-C on August 5, 2005. * * * On August 5, 2005, Defendant Miller filed a formal complaint with her employer, TRI-C, accusing Hughes of sexually harassing her and others. * * * TRI-C investigated the complaint and issued a report supporting Miller's allegations. * * * TRI-C determined that Miller's allegations were founded and disciplined Hughes. * * * On August 8 [sic], 2006, Hughes filed a Complaint with the Court of Common Pleas, Cuyahoga County, Case No. 06598129, alleging that Miller's August 5, 2005 internal complaint was defamation per se. * * * In his Complaint, Hughes demanded declaratory relief and monetary damages. * * * In order to defend against this claim, Miller has retained counsel and is now required to defend her absolute right to complain of sexual harassment in the workplace.
(Emphasis added.)
{¶ 21} The stated cause of action set forth in Miller's counterclaim for retaliation for participation in protected activity, in violation of R.C.
On August 5, 2005, pursuant to TRI-C's sexual harassment policy and procedure, Miller filed an internal complaint alleging that Hughes had subjected her and others to unwanted sexual harassment. * * * The act of filing an internal complaint is protected activity as defined by R.C.
4112.02 (I). * * * TRI-C began its investigation into Miller's complaint on August 11, 2005. * * * Ralph Hughes had knowledge of the complaint against him on or before August 23, 2005 when he was interviewed and allowed to respond to Millers' allegations. * * * On September 27, 2005, Andre Burton of TRI-C informed Hughes that, as a result of the investigation, he had determined that it was probable that he had subjected Miller to sexually harassing behavior. In addition, Burton, informed Hughes that he was recommending corrective action. * * * In the correspondence noted above, Burton warned Hughes that TRI-C's policy prohibited Hughes from retaliating or taking adverse action against Miller. * * * TRI-C disciplined Hughes for sexually harassing Miller. *446 * * * On August 8[sic], 2006, Hughes filed the herein referenced Complaint against Miller alleging that her sexual harassment complaint of August 5, 2005 was defamatory. * * * Hughes' Complaint was filed as a direct result of Miller's complaint to TRI-C with the purpose and effect of retaliating against Miller for engaging in protected activity. * * * Hughes' Complaint is retaliation per se and, therefore, a violation of R.C.4112.02 (I), which prohibits a person from retaliating against a person who has engaged in protected activity. * * * Hughes, in his Prayer for Relief, demands a declaratory judgment that Millers' [sic] allegations were defamatory and monetary relief in an effort to punish and harass Miller for engaging in protected activity under R.C.4112.02 (I). * * * Hughes' Complaint evidences a conscious disregard for Miller's right and obligation to complain of sexual harassment, such disregard having a great possibility of causing substantial damages and a chilling effect on the right to complain of sexual harassment in the workplace, thereby subjecting Hughes to liability to punitive damages. * * * As a result of Hughes's illegal retaliation, Miller has incurred legal expenses and otherwise suffered by being subjected to the continued harassment and retaliation caused by defending this lawsuit. * * * As a direct and proximate result of Hughes' action in filing a Complaint for defamation, Miller has suffered damages and is entitled to judgment as a matter of law pursuant to R.C.4112.99 .
(Emphasis added.)
{¶ 22} In her prayer for relief in her counterclaim, Miller sought attorney fees, costs, and interest on her claim for alleged violation of R.C.
ANALYSIS
{¶ 23} Miller's counterclaim purports to set forth a cause for retaliatory conduct under R.C.
It shall be an unlawful discriminatory practice: * * *
* * *
(I) For any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections
{¶ 24} Miller's counterclaim does not include a claim for retaliation for participation in protected activity under the federal counterpart to R.C.
Ohio law makes it unlawful "for any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice * * * or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under [the Ohio Civil Rights Act]." Ohio Rev. Code §4112.02 (I). Ohio's anti-retaliation law has a broader scope than Title VII because it does not limit its coverage to people in an employer-employee situation, LeMasters v. Christ Hosp. (S.D.Ohio 1991),777 F.Supp. 1378 ,1381-82 , but the standard for proving retaliatory discrimination in the employment context is the same under Ohio law as it is under Title VII. Rudy v. Loral Defense Sys. (1993),85 Ohio App.3d 148 ,155 ,619 N.E.2d 449 ,454 .
{¶ 25} This principle is reiterated in a recent decision of the Ohio Supreme Court cited by appellant:Greer-Burger v. Temesi,
Turning to the anti-retaliatory provision of R.C.4112.02 (I), it is "an unlawful discriminatory practice * * * [f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections4112.01 to4112.07 of the Revised Code." To establish a case of retaliation, a claimant must prove that (1) she engaged in a protected activity, (2) the defending party was aware that the claimant had engaged in that activity, (3) the defending party took an adverse employment action against the employee, and (4) there is a causal connection between the protected activity and adverse action. Canitia v. Yellow Freight Sys., Inc. (C.A.6, 1990),903 F.2d 1064 ,1066 .
{¶ 26} The Ohio Supreme Court reiterated other principles stated in Carlisle. InGreer-Burger, at ¶ 12, the court quotedPlumbers Steamfitters Joint Apprenticeship Commt. v.Ohio Civ. Rights Comm. (1981),
{¶ 27} In Greer-Burger, the Ohio Supreme Court briefly discussed the impact of the United States Supreme Court decision in Burlington N. Santa Fe Ry. Co. v.White (2006),
{¶ 28} The United States Supreme Court's decision in Burlington modified the third and fourth elements of a prima facie case of an antiretaliation claim brought under R.C.
{¶ 29} Therefore, applying the foregoing principles discussed by the Ohio Supreme Court inGreer-Burger, we are able to state that in order for a claimant worker to adequately set forth a prima facie case against a co-worker for retaliation for participation in a protected activity under R.C.
{¶ 30} In the circumstances of this case, the adverse action alleged in the counterclaim is Hughes's filing of a complaint in the instant action against Miller, for what Miller alleges was protected activity; namely, her filing of an internal claim of sexual harassment against him with their mutual employer. Given the impact of Burlington, as recognized in Greer-Burger, and applying the other principles enunciated in Greer-Burger, an examination of the four corners of Miller's counterclaim as required in a review of a trial court's granting of a Civ. R. 12(B)(6) motion for failure to state a claim, reveals that Miller's counterclaim sufficiently sets forth facts establishing the last three elements of a prima facie case of a claim for retaliation under R.C.
PROTECTED ACTIVITY UNDER R.C.
{¶ 31} The determinative issue presented in the instant appeal of the trial court's sua sponte dismissal of Miller's counterclaim is whether, after taking the *449
factual allegations of the pleading as true, it sufficiently sets forth the first element of a prima facie cause of action for violation of a protected activity under R.C.
{¶ 32} In Miller's counterclaim, she alleges that "the act of filing an internal complaint is protected activity as defined by R.C.
{¶ 33} The United States Supreme Court inCrawford stated that an employee's filing of an internal complaint with an employer constitutes protected activity under the opposition clause of the Title VII's antiretaliatory provision, protecting the employee who discloses sexual harassment in such a manner from retaliatory conduct by the employer. In fact, the holding ofCrawford makes it clear that protection under the "opposition clause" of antiretaliation statutes is not limited to cases where an employee initiates an internal complaint protesting sexual harassment. The court found that the "opposition clause" extends protection to an employee who opposes sexual discrimination stemming from sexual harassment, not by initiating a complaint but by answering questions posed to her during an employer's internal investigation. "There is, then, no reason to doubt that a person can `oppose' by responding to someone else's question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not *450
one who reports the same discrimination in the same words when her boss asks a question." Id., ___ U.S. at ___,
R.C.
{¶ 34} The Ohio Supreme Court in Akron Metro.Hous. Auth.,
An employer may be held liable for a nonsupervisory employee's sexual harassment of his co-worker if the employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action. * * *
This court first recognized that an employer may be held liable for failing to take corrective action in response to co-worker sexual harassment in Hampel [v. Food Ingredients Specialties, Inc. (2000),
Akron Metro at ¶ 14-16.
{¶ 35} Because of the trial court's sua sponte dismissal of her counterclaim, Miller was deprived of the opportunity to present evidence demonstrating that this prohibited type of employment discrimination was within the parameters of *451
the allegations of her counterclaim and that it was in fact the type of unlawful discriminatory practice under R.C.
{¶ 36} Miller claims that Hughes discriminated against her by filing the complaint in this case because she opposed what she alleged was an unlawful discriminatory practice set forth in R.C.
{¶ 37} Mindful of the principle set forth in R.C.
R.C.
{¶ 38} Miller did not specify in her counterclaim the specific section or subdivision describing the unlawful discriminatory practice that she had opposed by filing her internal complaint with her employer. Nor did the trial court in its journal entry sua sponte dismissing Miller's counterclaim for failure to state a claim state its analysis as to what sections or subdivisions describing unlawful discriminatory practice were or were not applicable. *452
{¶ 39} In addition to the protected activity covered by R.C.
{¶ 40} A review of the specific language of R.C.
{¶ 41} R.C.
(A) As used in this chapter:
* * *
(8) "Unlawful discriminatory practice" means any act prohibited by section
{¶ 42} A review of those sections reveal that the following language of R.C.
{¶ 43} R.C.
It shall be an unlawful discriminatory practice:
* * *
(G) For any proprietor or any employee, keeper, or manager of a place of public accommodation to deny to any person, except for reasons applicable alike to all persons regardless of race, color, religion, sex, * * * national origin, disability, age * * * or ancestry, the full enjoyment of the accommodations, advantages, facilities, or privileges of the place of public accommodation.
(Emphasis added.)
{¶ 44} The following definition of "place of public accommodation" is found in R.C.
"Place of public accommodation" means any inn, restaurant, eating house, barbershop, public conveyance by air, land, or water, theater, store, other place for the sale of merchandise, or any other place of public accommodation or amusement of which the accommodations, advantages, facilities, or privileges are available to the public.*453
{¶ 45} The Ohio Supreme Court stated that "R.C.
{¶ 46} Certainly, TRI-C is a place of public accommodation as defined under R.C.
{¶ 47} Taking the allegations of the counterclaim as true, there remains a question as to whether Hughes's conduct, based on Miller's sex, denied to her the full enjoyment of the accommodations, advantages, facilities, or privileges of TRI-C that Hughes, as an employee of TRI-C, would provide to others. If so, such conduct would be an actionable form of discrimination under R.C.
{¶ 48} The trial court improperly denied Miller the opportunity to present evidence meeting the standard for determining whether there has been unlawful discrimination pursuant to R.C.
When determining whether there has been unlawful discrimination under R.C.4112.02 (G), the test is simply whether the proprietor, keeper, manager or employee of a place of public accommodation has denied to any person the full enjoyment of such place for reasons not applicable alike to all persons, irrespective of race, color, religion, national origin or ancestry.
Lysyj at 221, 67 O.O.2d 287,
{¶ 49} For the foregoing reasons, we conclude, based on the allegations of the counterclaim, applicable statutes, and case law, that the trial court, by its sua sponte dismissal, improperly precluded Miller from presenting evidence at trial, demonstrating by a preponderance of the evidence her claim for retaliation for participation in protected activity. *454
{¶ 50} Miller's sole assignment of error is sustained.
{¶ 51} This matter is remanded in order to determine if Miller was damaged, as alleged in her pleading, as a direct and proximate result of Hughes's action in filing his since dismissed complaint for defamation against her in violation of R.C.
{¶ 52} The judgment is reversed, and the cause is remanded for proceedings consistent with this opinion.
Judgment accordingly.
McMONAGLE and SWEENEY, JJ., concur.