SYLVIA JOHNSON-NEWBERRY v. CUYAHOGA COUNTY CHILD AND FAMILY SERVICES, ET AL.
No. 107424
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
September 12, 2019
[Cite as Johnson-Newberry v. Cuyahoga Cty. Child & Family Servs., 2019-Ohio-3655.]
[Appeal by Stacey Gura, Defendant-Appellant]
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; DISMISSED IN PART
RELEASED AND JOURNALIZED: September 12, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-888586
Appearances:
Sobel, Wade & Mapley, L.L.C., and Claire I. Wade-Kilts, for appellee.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Brian R. Gutkoski, Assistant Prosecuting Attorney, for appellant.
{¶ 1} Defendant-appellant Stacey Gura appeals from the trial court‘s order denying the collective defendants’ motion for judgment on the pleadings and granting the plaintiff-appellee Sylvia Johnson-Newberry‘s motion for leave to amend her complaint.1 Gura argues she is entitled to sovereign immunity for Johnson-Newberry‘s allegations of personal liability for aiding and abetting pursuant to
Procedural History
{¶ 2} Plaintiff-appellee Sylvia Johnson-Newberry was employed by defendant Cuyahoga County Division of Children and Family Services (“CCDCFS”) as a social worker on November 14, 2016, until her termination on August 2, 2017. On November 6, 2017, Johnson-Newberry filed a complaint against her former employer, CCDCFS, and her former supervisor, defendant-appellant Stacey Gura.
{¶ 3} Johnson-Newberry asserted four claims in her complaint. Three claims were against CCDCFS: (1) disability discrimination;
{¶ 4} On April 9, 2018, the defendants filed a motion for judgment on the pleadings and to strike Johnson-Newberry‘s claim for punitive damages. In their motion, defendants asserted that the cause of action against Gura is actually a claim against Gura in her official capacity and therefore is a claim against CCDCFS. Defendants also claimed immunity. On April 24, 2018, Johnson-Newberry filed a motion to amend her complaint. Johnson-Newberry moved to correct a mistake in the county defendant‘s name. Johnson-Newberry stated that she mistakenly omitted the words “division of” from “Cuyahoga County Child and Family Services.”
{¶ 5} On June 12, 2018, the trial court denied the defendants’ motion for judgment on the pleadings without analysis and granted Johnson-Newberry leave to amend the complaint “to correct the misnomer, only.” Thereafter, Johnson-Newberry filed her amended complaint, partially correcting the county defendant‘s name to “Cuyahoga County Division of Child [sic] and Family Services.”
{¶ 6} Defendant-appellant Gura now appeals the trial court‘s June 2018 order, assigning two errors for our review:
I. The trial court committed prejudicial and reversible error by denying Appellant‘s Motion for Judgment on the Pleadings.
II. The trial court abused its discretion in granting leave to file an amended complaint.2
Motion for Leave to Amend Complaint
{¶ 7} Gura contends that the trial court abused its discretion when it permitted Johnson-Newberry to amend her complaint. In support, she argues that (1) Johnson-Newberry‘s motion failed to comply with the trial court‘s local rules requiring the movant to attach her proposed amendment; and (2) Johnson-Newberry‘s complaint improperly alleges punitive damages.
{¶ 8} It is well established that an appellate court may only review final orders, and without a final order, an appellate court has no jurisdiction for review. Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 9, citing Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).
{¶ 9} However, appellate review pursuant to
{¶ 10} Here, the record shows that on November 6, 2017, Johnson-Newberry filed a complaint against “Cuyahoga County Child and Family Services” and Stacey Gura. On April 17, 2018, in the defendants’ motion for leave to file a reply brief in support of judgment on the pleadings instanter, the defendants assert that Johnson-Newberry “did not sue the proper named entity, which is ‘Cuyahoga County, Division of Child and Family Services.’” Approximately one week later, Johnson-Newberry filed a motion to amend her complaint to correct the defendant‘s name, requesting the court allow her to amend the complaint to add “division of” to the defendant‘s name. On June 12, 2018, the trial court granted Johnson-Newberry‘s motion to amend her complaint “to correct the misnomer, only.” And on June 20, 2018, Johnson-Newberry filed her amended complaint.
{¶ 11} Our review of the amended complaint reveals that the only changes to the original complaint is the addition of the words “division of” to the Cuyahoga County defendant‘s name (in two places) and a correction to the parenthetical description of Johnson-Newberry‘s first cause of action: “Race Discrimination” is corrected to state “Disability Discrimination,” to correctly correspond to the allegation of disability discrimination contained in the body of the first cause of action. The amended complaint does not alter the body of the first cause of action.
{¶ 12} Because Johnson-Newberry‘s motion for leave to amend the complaint sought only to correct a misnomer in the county defendant‘s name and did not involve any issues involving “immunity from liability,” the order granting the motion is not a final appealable order. We therefore have no jurisdiction to review Gura‘s second assignment of error and we disregard it.
Motion for Judgment on the Pleadings
{¶ 13} Gura also contends that the trial court erred when it denied her
{¶ 14}
{¶ 15} The consideration of a motion for judgment on the pleadings is restricted solely to the allegations in the pleadings and any writings attached to the pleadings. Peterson v. Teodosio, 34 Ohio St.2d 161, 166, 297 N.E.2d 113 (1973). Dismissal under
{¶ 16} We review a trial court‘s decision on a motion for judgment on the pleadings de novo. Drozeck v. Lawyer Title Ins. Corp., 140 Ohio App.3d 816, 820, 749 N.E.2d 775 (8th Dist. 2000).
{¶ 17} In her complaint, Johnson-Newberry, an African-American, alleged that she was discriminated against by her employer, CCDCFS, because of her disability and her race. Johnson-Newberry claims that Gura, Johnson-Newberry‘s Caucasian supervisor, treated her differently than the Caucasian social workers, did not provide Johnson-Newberry with the same training as the Caucasian social workers, “belittled” Johnson-Newberry for not following procedures on which she was never trained, and “spoke down” only to Johnson-Newberry.
{¶ 18} According to the complaint, Johnson-Newberry complained about the alleged discrimination to Gura‘s supervisor, Bill Mench, and after Mench shared Johnson-Newberry‘s complaints with Gura, Gura‘s treatment of Johnson-Newberry worsened. In a written complaint about Gura to Mench, Johnson-Newberry alleged that she believed Gura mistreated her “because I am black.” The complaint alleged that Gura‘s treatment caused Johnson-Newberry severe anxiety that substantially limited major life activities, including work, and Gura‘s treatment resulted in Johnson-Newberry taking a seven-week medical leave. Johnson-Newberry was terminated approximately two months after returning to work from medical leave.
{¶ 19} In her fourth cause of action, “Aiding and Abetting in Violation of
{¶ 20}
an unlawful discriminatory practice * * * [f]or any employer, because of the race, color, * * * [or] disability * * * of any person, to discharge without just cause * * * or otherwise 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.
An “employer” includes “the state, any political subdivision of the state, * * * and any person acting directly or indirectly in the interest of an employer.”
{¶ 21}
any person to aid, abet, incite, compel, or coerce the doing of any act declared by this section to be an unlawful discriminatory practice, to obstruct or prevent any person from complying with this chapter or any order issued under it, or to attempt directly or indirectly to commit any act declared by this section
to be an unlawful discriminatory practice.
To “aid and abet,” an individual must actively participate in, or otherwise facilitate, another‘s discriminatory act in violation of
{¶ 22}
(a) The employee‘s acts or omissions were manifestly outside the scope of the employee‘s 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;
(c) Civil liability is expressly imposed upon the employee by a section 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 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.
{¶ 23} Gura contends that Johnson-Newberry cannot maintain a claim against her personally for a violation of
{¶ 24} In Genaro, the Supreme Court determined that an individual supervisor or manager may be liable for employment discrimination. The court held that “a supervisor/manager may be held jointly and/or severally liable with her/his employer for discriminatory conduct of the supervisor/manager in violation of
{¶ 25} In 2014, the Ohio Supreme Court in Hauser held that
{¶ 26} There is no dispute that CCDCFS is a political subdivision and therefore Hauser would apply in this employment context. However, the Hauser decision applies only to the provisions concerning “employer” discrimination. “We underscore * * * that our conclusion is limited to provisions dealing with ‘employer’ discrimination,
Even though
R.C. 4112.02(A) imposes liability only upon an “employer,” the General Assembly knows how to expressly impose liability on individuals, and it has done so elsewhere inR.C. 4112.02 . For example, ever since it first enactedR.C. Chapter 4112 in 1959, the General Assembly has declared it unlawful for “any person” to “aid abet, incite, compel[,] or coerce the doing of * * * an unlawful discriminatory practice” or to “attempt directly or indirectly to commit any act” constituting “an unlawful discriminatory practice.” FormerR.C. 4112.02(H) (enacted by Am.S.B. No. 10, 128 Ohio Laws 12, 14), now codified asR.C. 4112.02(J) . * * * [A]n examination ofR.C. 4112 reveals that when the General Assembly imposes individual liability for discriminatory practices, it does so expressly. If we were to conclude that the employer-discrimination provision inR.C. 4112.02(A) expressly imposes liability on employees, we would render the aiding-and-abetting provision inR.C. 4112.02(J) largely superfluous. That provision already holds individual employees liable for their participation in discriminatory practices.
{¶ 27} Thus, according to Hauser,
{¶ 28} Gura contends that the Supreme Court‘s language concerning personal liability under
{¶ 29} We are mindful that
{¶ 30} Here, Johnson-Newberry‘s fourth cause of action alleges that Gura, in violation of
{¶ 31} Accordingly, in construing all material allegations in the complaint in favor of the nonmoving party, we find that Gura failed to demonstrate that Johnson-Newberry could prove no set of facts in support of her claim for aiding and abetting under
{¶ 32} Gura‘s first assignment of error is overruled.
{¶ 33} Judgment affirmed in part and dismissed in part.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MICHELLE J. SHEEHAN, JUDGE
ANITA LASTER MAYS, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS WITH SEPARATE OPINION ATTACHED
SEAN C. GALLAGHER, P.J., CONCURRING:
{¶ 34} I fully concur with the majority‘s decision, although I believe the immunity issue is one the Supreme Court of Ohio may wish to address.
{¶ 35} With regard to the immunity issue, I agree with the majority that the allegations in the complaint and amended complaint, accepted as true, are sufficient to state a claim for aiding and abetting the alleged discrimination. Whether appellant will ultimately prevail on the claim is not a consideration before us, and the merits of the claim remain to be determined in the trial court. I also agree with the majority‘s analysis of Genaro, 84 Ohio St.3d 293, 1999-Ohio-353, 703 N.E.2d 782; and Hauser, 140 Ohio St.3d 268, 2014-Ohio-3636, 17 N.E.3d 554. Although Hauser is not controlling, other courts have found the reasoning persuasive and determined that
{¶ 36} Appellant raises a compelling argument against imposing individual liability under