162 Ohio App. 3d 221 | Ohio Ct. App. | 2005
{¶ 1} Using R.C.
{¶ 2} The underlying facts remain disputed. Appellants terminated Nagel's employment for reasons that they claim were justified. Nagel contends otherwise and alleges that appellants wrongfully terminated him because he refused to participate in appellants' alleged attempts to discredit another law-enforcement officer. Thus, Nagel filed a complaint against appellants that contained various claims for relief, including retaliation and hostile-work-environment claims. Appellants moved for summary judgment, arguing that they were entitled to sovereign immunity on all claims. The trial court determined that appellants were entitled to summary judgment and granted them immunity on all claims except for retaliation and creating a hostile work environment.
{¶ 3} Appellants appealed from the denial of immunity and assign the following errors:
FIRST ASSIGNMENT OF ERROR
The trial court erred in determining defendants were not entitled to statutory immunity on any state claims for retaliation and hostile work environment.
SECOND ASSIGNMENT OF ERROR
The trial court erred in determining that the city of Portsmouth was not entitled to summary judgment on plaintiff's federal claims for retaliation and hostile work environment.
THIRD ASSIGNMENT OF ERROR
The trial court erred in proceeding with plaintiff's claims where his administrative remedies under the collective bargaining agreement had not yet been exhausted.
{¶ 5} In Butler, the court held:
1. Within the meaning of R.C.
2744.02 (B)(5), R.C.5104.11 does not expressly impose liability on a political subdivision for failure to inspect or for the negligent certification of a type-B family day-care home even where the political subdivision has completely ignored the obligations imposed upon it by the statute.2. Within the meaning of R.C.
2744.02 (B)(5), no other section of the Revised Code expressly imposes liability on a political subdivision for failure to inspect or for the negligent certification of a type-B family day-care home.
Id. at paragraphs one and two of the syllabus. Butler was decided on July 25, 2001, when the Supreme Court Rules for Reporting of Opinions provided that the syllabus of Supreme Court opinions stated the controlling law. See former S.Ct.Rep. 1 R.1(B), 3 Ohio St.3d xxi, which was replaced by the current version, effective May 1, 2002. Nowhere in the syllabus did the Ohio Supreme Court declare R.C.
{¶ 6} However, based upon Butler, Kammeyer predicted that the Ohio Supreme Court would declare R.C.
{¶ 7} We choose not to follow Kammeyer because it is not controlling authority. See State v. Steele, Butler App. No. CA2003-11-276,
{¶ 8} Finally, we have already rejected the proposition thatButler is a proper vehicle for finding R.C. Chapter 2744 unconstitutional. See Ratcliff v. Darby (Dec. 2, 2002), Scioto App. No. 02CA2832, 2002-Ohio-6626, 2002 WL 31721942, at ¶ 23-25. We see nothing in Nagel's argument that causes us to reconsider our previous holding.
{¶ 12} Because the determination whether a political subdivision is immune from liability is a question of law, summary judgment is an appropriate vehicle for that determination. Conley v. Shearer (1992),
This chapter does not apply to, and shall not be construed to apply to, the following:
(A) Civil actions that seek to recover damages from a political subdivision or any of its employees for contractual liability;
(B) 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;
(C) Civil actions by an employee of a political subdivision against the political subdivision relative to wages, hours, conditions, or other terms of his employment;
(D) Civil actions by sureties, and the rights of sureties, under fidelity or surety bonds;
(E) Civil claims based upon alleged violations of the constitution or statutes of the United States, except that the provisions of section
2744.07 of the Revised Code shall apply to such claims or related civil actions.
(Emphasis added.)
{¶ 14} On their face, Nagel's retaliation and hostile-work-environment claims are based upon his employment relationship and upon what he claims is his exercise of free speech. Thus, under R.C.
{¶ 15} Nonetheless, appellants contend that Nagel's claims represent intentional torts, for which political subdivisions retain their immunity. Appellants rely upon BurlingtonIndustries, Inc. v. Ellerth (1998),
{¶ 16} We acknowledge that Ohio courts consistently have held that under the provisions of R.C. Chapter 2744, political subdivisions retain their cloak of immunity from lawsuits for intentional-tort claims. See Wilson v. Stark Cty. Dept. of HumanServ. (1994),
{¶ 17} But in Gessner v. Union,
{¶ 18} Like our colleagues in Gessner, we are not persuaded that the legislature intended to engraft the Supreme Court's interpretation of the workers' compensation scheme onto its general statutory provisions for political-subdivision immunity. Because employer intentional torts are not a natural risk of *228
employment, the Supreme Court concluded that they occur outside of the employment relationship in the workers' compensation context. See Blankenship v. Cincinnati Milacron Chem., Inc.
(1982),
[A]n injury that is the product of an employer's intentional tort is one that also "arises out of and in the course of" employment.
* * * Although an employer intentional tort occurs outside the employment relationship for purposes of recognizing a common-law cause of action for intentional tort, the injury itself must arise out of or in the course of employment; otherwise there can be no employer intentional tort.
Id. at ¶ 39-40.
{¶ 19} We continue to believe claims that are causally connected to an individual's employment fit into the category of actions that are "relative to any matter that arises out of the employment relationship." See, also, Marcum v. Rice (July 20, 1999), Franklin App. Nos. 98AP717, 98AP718, 98AP719, and 98AP721, 1999 WL 513813, unreported, where the Tenth District interpreted R.C.
{¶ 20} Because they are causally connected to Nagel's employment with the appellants, the retaliation and hostile-work-environment claims arise out of the employment relationship and in this case are based upon what Nagel asserts are violations of his civil rights. Therefore, his claims fall within the purview of R.C.
{¶ 22} Consequently, we affirm the trial court's judgment.
Judgment affirmed.
ABELE, P.J., and KLINE, J., concur.