Stachura v. ToledoStachura v. Toledo
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Terry J. Lodge, for appellees.
Adam Loukx, Director of Law, and Merritt W. Green III, Senior Attorney, for appellants.
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OSOWIK, J.
{¶ 1} This is an appeal from a February 24, 2012, judgment of the Lucas County Court of Common Pleas, which denied appellants’ motion for partial summary judgment on the issue of immunity. For the reasons set forth below, this court affirms the judgment of the trial court.
THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT/APPELLANTS BY DENYING IMMUNITY AFFORDED TO THEM PURSUANT TO
R.C. 2744.03 (A)(6) .THE TRIAL COURT ERRED IN ALLOWING PLAINTIFF/APPELLEES TO ARGUE THE EXCEPTIONS TO GOVERNMENTAL EMPLOYEE IMMUNITY BECAUSE THE AMENDED COMPLAINT FAILED TO ALLEGE ANY OF THE EXCEPTIONS UNDER
R.C. 2744.03(A)(6) .
{¶ 3} The following undisputed facts are relevant to this appeal. Appellees all formerly served as members of the Toledo Fire Department (“TFD“). Appellees are all female. Appellants include both the political subdivision of the city of Toledo as well as a number of members of the TFD holding various supervisory positions during the relevant time period. All individual appellants are male.
{¶ 4} Over the course of their years of employment with the TFD, appellees each experienced a multitude of workplace interactions and incidents occurring directly with or directly connected to the individual appellants that appellees perceived to be rooted in a pattern of unlawful gender discrimination. Appellees maintain that they were targeted by appellants in the course and scope of the employment by the TFD and subjected to gender based maltreatment.
{¶ 6} On September 12, 2008, appellees filed an amended complaint including an additional individually named employee of the fire department, Michael Wolever, as a defendant. In addition, the amended complaint set forth the additional claim of retaliation.
{¶ 7} On November 7, 2011, some four years after their initial summary judgment filing, appellants again filed for summary judgment. On February 23, 2012, the trial court denied appellants’ motion for partial summary judgment as pertaining to the individually named employees of TFD. In support of summary judgment, appellants essentially asserted that they are invariably entitled to
{¶ 8} In the course of their summary judgment opposition, appellees referenced extensive citations to depositions taken in this matter in support of their germane position that a genuine issue of material fact remained in dispute necessitating trial court determination. Specifically, appellees contended that it remained in dispute as to whether certain workplace conduct engaged in by the individual appellants directed against appellees could reasonably be construed so as to be reflective of malice, bad faith or recklessness and thereby constitute an
{¶ 9} On February 23, 2012, the trial court denied appellants’ motion for partial summary judgment. The trial court concluded in pertinent part that appellants’ proposed interpretation of precedent, statutes, and the record of evidence as directing that appellants be found necessarily immune from the underlying gender discrimination claims was mistaken. The trial court concluded that within the context of the opposing legal arguments and accompanying vast body of contested evidence, a genuine issue of material fact remains in dispute pertaining to whether the evidence supports the application of a statutory liability exception set forth in
{¶ 10} Both assignments of error set forth by appellants are rooted in the shared underlying legal premise that the trial court erred in its above-described denial of partial summary judgment in favor of the individually named appellants. It is well-established that summary judgment is only proper when no genuine issue of material fact remains so that after construing the evidence most favorably to the nonmoving party, reasonable minds can only conclude the moving party is entitled to judgment as a matter of law.
{¶ 11} We have carefully reviewed the considerable record of evidence accumulated over the course of this case. It entails extensive claims and vast evidence all ultimately connected to the disputed workplace-based conduct between the parties occurring over a multi-year timeframe during their employment by TFD.
{¶ 12} Appellants’ assertion of absolute immunity rests on their questionable interpretation of the recent Supreme Court of Ohio ruling in Zumwalde v. Madeira, 128 Ohio St.3d 492, 2011-Ohio-1603, 946 N.E.2d 748. Appellants sought to have Zumwalde interpreted as rendering individual employees of a political subdivision automatically immune from discrimination and retaliation claims. We do not concur in this interpretation.
{¶ 14} We concur with the trial court’s ultimate conclusion that neither precedent nor statute in the context of the evidence presented automatically entitles the individually named appellants to the protection of government immunity against these gender discrimination claims as a matter of law. More precisely, we find that a genuine issue of material fact remains in dispute for jury determination regarding whether the conduct at issue by appellants directed towards appellees during their employment at TFD constitutes conduct of malice, bad faith or recklessness by appellants such that the
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
CONCUR.
JUDGE
Stephen A. Yarbrough, J.,
DISSENTS.
YARBROUGH, J., dissenting.
{¶ 16} This case involves an employment relations lawsuit filed by three female employees against their supervisors in the city of Toledo’s fire department. Appellees have alleged a series of acts by appellants which they claim, over time, have formed a pattern of unlawful gender discrimination and, more recently through an amended complaint, a retaliation claim was added.
{¶ 18} When determining whether a political subdivision employee is entitled to immunity,
{¶ 19}
In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections
3314.07 and3746.24 of the Revised Code, 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 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.
{¶ 20} Generally, whether a political subdivision employee is entitled to immunity is a question of law. See, e.g., Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992) (“Whether immunity may be invoked is a purely legal issue, properly determined by the court prior to trial, [and] preferably on a motion for summary judgment.” (Citations omitted.)); Mathews v. Waverly, 4th Dist. No. 08CA787, 2010-Ohio-347, ¶ 14.
{¶ 21} Under the employee immunity exceptions of
{¶ 22} Thus, under
{¶ 23} And whether the exception to immunity under
{¶ 24} Under their first assigned error, appellants contend that appellees have failed to establish that any of the three exceptions in
{¶ 25} Plainly neither
{¶ 26} First, appellees have not pointed to anything in the record, beyond conclusory claims or the repetition, essentially, of the allegations in their amended complaint, that would create a genuine question as to whether appellants were acting
{¶ 27} Second, for the specific conduct alleged, appellees have cited no statute that “expressly imposes” civil liability on appellants as employees of a political subdivision. The exception under
{¶ 29} What remains is the narrow window of immunity-removing conduct embraced by
{¶ 30} “Malicious” means the willful and intentional desire to harm another, usually seriously, through conduct which is unlawful or unjustified and which, in some cases, may be criminal. Hicks v. Leffler, 119 Ohio App.3d 424, 428-429, 695 N.E.2d 777
{¶ 31} In my view, the record fails to demonstrate the sort of reprobative acts by appellants toward appellees that could reasonably be construed as “malicious,” “in bad faith,” or “wanton or reckless.” In the first place, the nature of the evidence offered by
{¶ 32} Even apart from the immunity issue, personality conflicts in the workplace and idiomatic comments strung together from separate incidents are not in themselves actionable under
{¶ 33} Accordingly, I would find the first assigned error well-taken, for none of the immunity exceptions in
{¶ 34} I would also find appellants’ second assigned error well-taken. Under this assignment, appellants urge that the amended complaint never alleged as a basis for liability any of the exceptions under
{¶ 36} For the foregoing reasons, I dissent.
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.