KIM WATSON, ET AL., PLAINTIFFS-APPELLEES vs. CUYAHOGA METROPOLITAN HOUSING AUTHORITY, ET AL., DEFENDANTS-APPELLANTS
No. 99932
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 17, 2014
[Cite as Watson v. Cuyahoga Metro. Hous. Auth., 2014-Ohio-1617.]
BEFORE: Kilbane, J., Boyle, A.J., and Jones, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-11-761704; RELEASED AND JOURNALIZED: April 17, 2014
Christopher P. Thorman
Mark D. Griffin
J. Matthew Linehan
Thorman, Petrov, Griffin Co., L.P.A.
3100 Terminal Tower
50 Public Square
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
Thomas H. Barnard
Michelle R. Arendt
Josephine S. Noble
Ogletree, Deakins, Nash, Smoak, Stewart
127 Public Square
4130 Key Tower
Cleveland, Ohio 44114
{¶1} Plaintiffs-appellants Kim Watson (“Watson“), Linda Stamper (“Stamper“), and William Lowe (“Lowe“) appeal from the order of the trial court that awarded summary judgment to defendants-appellees the Cuyahoga Metropolitan Housing Authority (“CMHA“) and George Phillips-Oliver (“Phillips-Oliver“) in plaintiffs’ action for wrongful termination. Plaintiffs assign the following errors for our review:
I. The trial court erred when it failed to determine that the CMHA videos were public records.
II. The trial court erred when it held that a public employee may be fired for requesting public records that embarrass the employer.
III. The trial court erred by failing to consider separately each Appellant‘s claim.
IV. The trial court erred when it refused to order discovery of evidence then granted summary judgment to CMHA and as to Appellants’ affirmative defenses citing lack of evidence.
V. The trial court erred in concluding that convicted felon Phillips-Oliver is entitled to immunity.
{¶2} Having reviewed the record de novo, and by application of the controlling case law, we find the assignments of error lack merit. We therefore affirm the judgment of the trial court.
Pre-Litigation Events
{¶3} On May 6, 2010, CMHA police arrested Navario Banks (“Banks“) for carrying a concealed weapon, drug possession, and theft of a motor vehicle. On May 24,
{¶4} Banks received a copy of the vidеo, but was unable to view it, so he requested that Lowe come to his attorney‘s office to play the video. On June 29, 2010, Lowe went to the office of Banks‘s attorney and played the video, and also agreed to Banks‘s request that he testify as a witness for him in the pending criminal matter. Following that meeting, Lowe informed his boss, Don Butler, IT director at CMHA, of the video and the request for testimony.
{¶5} CMHA conducted an investigation into the matter and obtained, inter alia, letters from Watson about her actions, as well as statements from Stamper and Lowe. CMHA held a pre-disciplinary hearing and subsequently determined that plaintiffs had performed personal business for the benefit of a third party while on duty. CMHA additionally conсluded that they had used their position to access and obtain information
Litigation
{¶6} On August 10, 2011, plaintiffs filed suit against CMHA and its then-Chief Executive Officer, Phillips-Oliver. In their first amended complaint for relief, plaintiffs alleged that they were wrongfully discharged in violation of public policy because “CMHA police [have] a duty to disclose evidence materially favorable to an accused criminal defendant,” and because “Ohio has a * * * public policy committed to open records.” They further alleged that their firings were unrelated to their job performance or employer policies, and that they were terminated for requesting and obtaining public records.
Summary Judgment
{¶7} On May 9, 2012, defendants moved for summary judgment. In support of this motion, defendants presented evidence that plaintiffs accessed CMHA property while on work time, contrary to CMHA policies and practices, and without proper authorization. In relevant part, defendants presented Administrative Order 18, promulgated in 2003, that requires the law department to review and authorize the release of any and all records requested in a public records request. The records are not
{¶8} CMHA general counsel Audrey Davis testified in deposition that all public records requests are considered on a case-by-case basis. According to this witness, the video in question is not a public record, but rather, is a confidential law enforcement investigatory record. In addition, CMHA‘s conflict of interest policy bars the misuse of CMHA‘s confidential infоrmation and prohibits, among other things, the providing to any person, in a preferential manner, aid or documents that are not available to the general public, and using the employee‘s position to achieve personal gain that ordinarily would not have been available to the employee. These disciplinary policies are set forth in Administrative Order 11, copies of which Watson and Lowe acknowledged receiving.
{¶9} CMHA also presented evidence that the CMHA police must be consulted in responding to a request for video surveillance. According to CMHA Detective William Higginbotham (“Detective Higginbotham“), all video surveillance is monitored by the policе. In addition, according to CMHA director of asset management Carolyn Gaiter, and Detective Higginbotham,2 under CMHA policy, a CMHA police officer must be
{¶10} Defendants’ evidence demonstrated that the foregoing procedures were not followed in this matter. Rather, according to evidence presented by defendants, during the workday, Watson admitted that she came to Stamper and asked to view surveillance footage from King Kennedy, telling Stamper that the CMHA police had accused her son of stealing a van, and that the “camera would validate that he couldn‘t have possibly been at the location that CMHA police said he was at committing a crime.” Stamper could not rewind the footage so she directed Watson to contact Lowe. Lowe admitted that during the discussion with Watson, Watson informed him that “her son was being ask[ed] questions and was detained by CMHA police * * * and asked if she could see the video.” He then let her have a copy of it. Approximately ten days later, Lowe met with Banks at a nearby McDonald‘s and explained to him how to view the recording and he also met with Banks‘s attorney, and assisted her in viewing it.
{¶11} Defendants also presented deposition testimony from Mark Hunt, director of human resources, that if the matter had related to CMHA business, Stamper was authorized to obtain the record. Stamper had no such authority, however, when the matter involved personal business, rather than CMHA business. Lowe‘s position involved getting the cameras in place, setting them up and making sure that they were working.
{¶13} Gonzalez concluded that plaintiffs had breached CMHA security when they downloaded the video. Plaintiffs were ultimately terminated for violating the conflict of interest policy and taking actions to benefit a third party (Banks) who had an adverse interest to CMHA, and disclosing CMHA property to a third party without proper authorization. Defendants maintained that there was no evidence that plaintiffs were terminated for making a public records request. Finally, dеfendants maintained that the circumstances of the terminations do not jeopardize public policy, and there was no evidence that the reasons offered for the terminations were a pretext.
{¶14} In opposition, plaintiffs asserted that the terminations violated Ohio‘s public policy favoring open public records, and the duty to provide exculpatory evidence to a criminal defendant, and that CMHA retaliated against plaintiffs. They maintained that the videotape was generally available to the public, and that CMHA had waived any
{¶15} Plaintiffs presented deposition testimony from CMHA Ombudsman Dorothy Noga-McCarthy who stated that requests for public records must be made during working hours and do not have to be made in writing. Plaintiffs also presented evidence that Watson did not know of the public records procedure, that CMHA‘s public records policy was never distributed to employees and that there are no written rules prohibiting Lowe from giving copies of security footage to anyone. Plaintiffs also presented deposition testimony from Stamper in which she stated that she understood her job as requiring her to fulfill requests “[w]hen the public requests anything that was public.” She did not believe that she had to go through the legal department or the police department. Stamper stated that she had authority to provide the public with police reports, and had previously rewound and inspected videos.
{¶16} The evidence presented by plaintiffs further indicated that time was of the essence because security cameras at CMHA continually record over prior videos. Plaintiffs also presented evidence that in prior years requests for video surveillance had to be reported to CMHA police but, according to plaintiffs, after Lowe became CMHA camera specialist, Lowe routinely handled such requests. Lowe averred that he never received a written public records policy, and was never instructеd to consult with the legal department in responding to public records requests. He admitted, however, that the DVD that recorded the footage was password protected.
Plaintiffs’ Motion to Compel
{¶18} On November 21, 2012, plaintiffs filed a motion to compel discovery in which they asserted that defendants failed to comply with a court order requiring them to produce the electronic versions of the pre-disciplinary letters and termination letters, and other documents. Plaintiffs asserted that they are entitled to communications from CMHA general counsel Audrey Davis, “decision-maker notes,” and other documents, and that the documents are not privileged. Defendants opposed the motion and on December 20, 2012, the trial court held a hearing on the matter, at which the trial court heard extended argument. On January 14, 2013, thе trial court issued the following order:
Plaintiffs’ mtn to compel discovery and for sanctions is granted and denied in part. * * * Defts have chosen to not waive certain atty client privileges relative to counsel [Audrey] Davis and CMHA. That declaration means certain of the discovery pltfs sought by this motion can not be ordered by this court. The parties advised that contact information for certain witness was previously produced and therefore that part of pltfs’ motion is moot. This court is satisfied that defts have thoroughly searched its computer records for all versions of the pre-disciplinary and termination
letters and this court will not order defts to look further. This may well leave pltfs with evidеnce and argument to the jury that such letters did exist but were not produced by defts despite proper request therefor. In all other respects, pltfs’ motion is denied.
Trial Court‘s Final Order
{¶19} On May 1, 2013, the trial court granted defendants’ motion for summary judgment. In a 28-page opinion, the trial court determined that there was no evidence that Phillips-Oliver acted with a malicious purpose, in bad faith or in a wanton or reckless manner, so it found him immune from liability under
{¶20} The court also concluded that defendants were entitled to judgment as a matter of law on plaintiffs’ claim of wrongful discharge in violation of public policy since defendants, a public housing entity and official, have no duty to provide plaintiffs with evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The evidence also established that plaintiffs’ actions were motivated by a desire to help Banks, and were not motivated by conduct related to public policy concerning public records. The court stated that there was no indication that had plaintiffs accessed the video consistently with their employer‘s interest, they would have been terminated.
{¶21} The undisputed evidence established that Banks had received the video at no charge and without review by the CMHA police or legal department, and the court noted that the “objective of
Review of Ruling on Motion to Compel Discovery
{¶23} Within the fourth assignment of error, plaintiffs assert that the trial court erred in denying their November 21, 2012 motion to compel discovery in which they sought communications, including decision-maker notes, and drafts of documents from CMHA general counsel Audrey Davis, in order to discover her role in the terminations, the advice she provided, and whether that advice was heeded.
{¶24} Trial courts have broad discretion over discovery matters. State ex rel. Duncan v. Middlefield, 120 Ohio St.3d 313, 2008-Ohio-6200, 898 N.E.2d 952, ¶ 27. Generally, if the discovery issue involves an alleged privilege, as in this case, it is a question of law that must be reviewed de novo. Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13. However, the Supreme Court has characterized the determination of whether materials are protected by the attorney work-product privilege and the determination of the good-cause exception to that privilege, not as questions of law, but as discrеtionary determinations to be made by the
{¶25} Under
{¶26} The attorney-client privilege applies to pertinent communications between attorneys and their corporate clients, just as between attorneys and their individual clients. Leslie at ¶ 22; MA Equip. Leasing I, LLC v. Tilton, 10th Dist. Franklin Nos. 12AP-564 and 12AP-586, 2012-Ohio-4668, ¶ 33 (in general, the privilege extends to the communications of in-house counsel.). Moreover, an attorney “does not become any less of an attorney by virtue of state agency employment.” State ex rel. ESPN, Inc. v. Ohio State Univ., 132 Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 38, quoting Leslie at ¶ 29.
{¶27}
{¶28} Furthermore, pursuant to
{¶29} The work-product privilege belongs to the attorney, and protects the attorney‘s mental processes in preparation of litigation, so that the attorney can analyze and prepare their client‘s case free from scrutiny or interference by an adversary. Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 55. Attorney work product may be discovered upon a showing of good cause if it is directly at issue in the case, the need for the information is compelling, and the evidence cannot be obtained elsewhere. Id. at ¶ 60.
{¶30} In this matter, the record reflects that plaintiffs depоsed CMHA general counsel Audrey Davis during the course of discovery, on July 11, 2012. She was involved in the investigation of this matter, and was involved in pre-termination meetings with plaintiffs. She was not a member of the management committee, but rather, gave legal advice in executive sessions with managers who made the decision to terminate plaintiffs. She stated that there was no privilege as to meetings in the presence of plaintiffs but she was not waiving the privilege as to her role in advising CMHA. She
{¶31} At the December 20, 2012 hearing, CMHA emphasized that Davis‘s role was to provide legal advice to CMHA. Defense counsel offered to let the court examine various documents in its privilege log to determine if there was discoverable information. The record indicates that Davis was not part of the management team and that she provided legal advice in anticipation of a specific concern for possible litigation. The record does not supрort the plaintiffs’ claim that Davis simply assisted CMHA with its business decisions or a human relations matter. Moreover, plaintiffs did not make the requisite showing in order to obtain information protected by work product. We therefore conclude that this portion of the assignment of error is without merit.
{¶32} Plaintiffs also raise the related argument that the trial court erred insofar as it allowed defendant Phillips-Oliver to use the defense of sovereign immunity because it was premised upon his reliance upon the advice of counsel, without requiring the disclosure of the content of the communications between him and his attorney.
{¶33} As an initial matter, we note that the key issue in overcoming sovereign immunity is whether Phillips-Oliver‘s аcts or omissions were manifestly outside the scope of his employment or official responsibilities or whether he acted with malice, in bad
{¶34} In any event, the exclusive means of waiver of attorney-client privilege set forth in
{¶35} The fourth assignment of error is without merit.
Phillips-Oliver‘s Immunity
{¶36} Plaintiffs next assert, in the fifth assignment of error, that the trial court erred in determining that Phillips-Oliver was entitled to sovereign immunity as a matter of law. Plaintiffs сontend that he waived this affirmative defense by failing to timely and explicitly raise it, and by failing to appeal the trial court‘s denial of his motion to dismiss pursuant to
{¶37} As an initial matter, the trial court‘s denial of Phillips-Oliver‘s motion to dismiss the complaint under
{¶38} As to the issue of timeliness, the trial court‘s decision granting leave to file an answer out of rule is reviewed for an abuse of discretion. Sherrills v. Enersys Del., Inc., 8th Dist. Cuyahoga No. 98319, 2012-Ohio-5183, ¶ 11. Here, the record reveals that plaintiffs’ first amended complaint was filed on November 28, 2011. On December 12, 2011, Phillips-Oliver filed a motion to dismiss the complaint in which he asserted the defense of sovereign immunity. On June 28, 2012, the trial court denied this motion and on August 17, 2012, he filed a motion for leave to file an answer with affirmative defenses that the trial court granted on December 14, 2012. The trial court subsequently determined that “reasonable minds could only conclude that [Phillips-Oliver] acted inside the scope of his employment and did not act with malicious purpose, in bad faith, or in a wanton or reckless manner * * * therefore this Defendant is immune from liability.” We conclude thаt the trial court acted within the proper exercise of its discretion in permitting him to file his answer with affirmative defenses in this matter.
{¶39} As to whether the trial court erred in awarding Phillips-Oliver summary judgment, he testified in deposition that CMHA‘s duty is to comply with the public records law and not simply release records. He stated that plaintiffs’ actions impacted the operations of CMHA, had a direct bearing on a criminal matter, and had the potential to do great harm to CMHA. He noted that Don Butler of the IT department, and the
{¶40} On the record, there was no evidence that Phillips-Oliver actеd manifestly outside the scope of his employment, or that he acted with willful misconduct, an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury. Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 32-34. Likewise, there was no evidence that he failed to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result. Id. The trial court therefore properly awarded him summary judgment.
{¶41} The fifth assignment of error is without merit.
The Video as a Public Record
{¶42} Within their first assignment of error, plaintiffs assert that the trial court erred when it failed to determine that the video is a public record.
{¶43} A “public record” is “any record that is kept by any public office,” with certain specified exceptions.
{¶45} In this matter, CMHA general counsеl Audrey Davis testified that she believed that the video was a confidential law enforcement record so it was exempt from disclosure. Nonetheless, CMHA‘s legal department was deprived of the opportunity to determine whether the record was subject to disclosure or whether it was exempt as a confidential law enforcement. As noted by the trial court:
This dispute has no significance here because at the time of Plaintiffs’ conduct which resulted in their firing, CMHA did not know about the video footage of Banks and was not actively factoring it into his prosecution. * * * Whether a public records request or not, Plaintiffs were reviewing video surveillance footage for non-employmеnt purposes which clashed with [the] employer‘s interests in detecting and prosecuting lawbreakers on their property.
{¶46} The record demonstrates that plaintiffs’ actions provided Watson with an immediate, free copy of the video after Banks had been arrested and charged with a crime by CMHA officers. In addition, Lowe assisted Banks‘s attorney in viewing the video footage. In making the decision to terminate plaintiffs, CMHA determined that plaintiffs used for “their personal benefit or the gain of another, any confidential information
Review of Award of Summary Judgment to CMHA
{¶47} A reviewing court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241; Mitnaul v. Fairmount Presbyterian Church, 149 Ohio App.3d 769, 2002-Ohio-5833, 778 N.E.2d 1093 (8th Dist.). Therefore, this court applies the same standard as the trial court, viewing the facts in the case in the light most favorable to the nonmoving party and resolving any doubt in favor of the nonmoving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12, 467 N.E.2d 1378 (6th Dist.1983).
{¶48} Pursuant to
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence mоst strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
{¶49} Once a moving party satisfies its burden of supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to
{¶50} With regard to the substantive law, we note that in 1990, the Ohio Supreme Court recognized an exception to the employment-at-will doctrine that applies when an at-will employee is discharged or disciplined for reasons that contravene clear public policy expressed by the legislature in its statutes. Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d 981 (1990), paragraph one of the syllabus. In order tо prevail on a cause of action for wrongful termination in violation of public policy, a plaintiff must prove that: (1) a clear public policy exists as manifested in a state or federal constitution, statute, or administrative regulation, or in the common law (the “clarity element“); (2) dismissing employees under the circumstances presented would jeopardize the public policy (the “jeopardy element“); (3) the plaintiff‘s dismissal was motivated by conduct related to the public policy (the “causation element“); and (4) the employer lacked an overriding legitimate business justification for the dismissal (the “overriding-justification element“). Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938, ¶ 9.
{¶51} The clarity and jeopardy elements аre questions of law to be decided by the court. Collins v. Rizkana, 73 Ohio St.3d 65, 70, 1995-Ohio-135, 652 N.E.2d 653. When analyzing the jeopardy element, a court must inquire “into the existence of any alternative means of promoting the particular public policy to be vindicated by a common-law wrongful-discharge claim.” Wiles v. Medina Auto Parts, 96 Ohio St.3d 240, 244, 2002-Ohio-3994, 773 N.E.2d 526. If a statutory remedy already exists that adequately protects society‘s interests already exists, then there is no need to recognize a claim for wrongful discharge in violation of public policy. Id. The causation and overriding justification elements are questions of fact. Rizkana at 70.
{¶52} With regard to the first element, the plaintiffs advanced the contention that Ohio public policy prohibits the termination of an employеe for accessing public records, and also prohibits the termination of an employee who seeks exculpatory evidence for a criminal defendant. The trial court rejected both of those claims and determined, as a matter of law, that plaintiffs could not meet the clarity or jeopardy elements of their claim for relief. The court stated:
The Ohio Public Records Act nor the federal Freedom of Information Act] do not apply as neither statute clearly affords protection to employees who violate procedures. Also, both statutes list certain exemptions to disclosure and therefore the right to access public records is not automatic or without limitation. * * *
* * * [As to the claim regarding exculpatory evidence,] the undisputed evidence shows that Defendants were not Banks’ prosecutors, but CMHA‘s police caused and [were] supporting his prosecution. More to the point, Plaintiffs were not obligated to fulfill the prosecutors’ duties and provide Banks with exculpatory information.
Plaintiffs do not argue that they were motivated by these laudatory goals in their actions; they admit that their actions were to benefit Watson‘s son who faced criminal charges.
{¶53} The trial court additionally held that plaintiffs’ claims failed because they could not show that the circumstances of their terminations jeopardizеd public policy. The Court noted:
Plaintiffs were not terminated for merely requesting a public record. They were terminated for their conduct in obtaining the employer‘s video in pursuit of a purely private matter which happened to be adverse to the employer‘s interest in prosecuting those who commit criminal acts on their property. There is no indication that had plaintiffs accessed the video in pursuit of their job duties consistent with their employer‘s interest they would still have been terminated. It cannot be said that other employees will be discouraged from requesting public records for purposes related to CMHA‘s interests. The objective of
R.C. 149.43 is not to allow emрloyees of public offices to use their superior position of employment to gain access to any record, for any purpose, at any time, without proper checks and balances. CMHA‘s policies and procedures, implemented to ensure the agency functions properly, cannot be secondary to its duty to maintain public records and make them available to requesters. * * * The Court concludes that adequate protections exist for Public records under Ohio laws.
{¶54} This cogent reasoning follows as a matter of law from the undisputed evidence of record. The record supports the conclusion that plaintiffs used their employment in ordеr to provide Watson with an immediate, free record, without review by CMHA legal staff. They acted outside of CMHA‘s public records policy, and inconsistent with the Ohio Public Records Act. In addition, they did not pursue evidence
{¶55} Moreover, the formal pursuit of public records is protected by the remedies set forth in the act. Banks likewise had access to exculpatory evidence under the framework of
{¶56} The second and fourth assignments of error are without merit.
Failure to Consider Plaintiffs’ Individual Claims
{¶57} For their third assignment of error, plaintiffs assert that the trial court erred by failing to separately consider and address each of their claims. They contend that Watson acted properly in seeking a public record from Stamper, that Stamper had no interest in impermissibly assisting Watson and Banks, and that Lowe simply fulfilled his required job duty in providing the video footage.
{¶58} In the amended complaint, plaintiffs did not set forth individual claims. Rather, they collectively asserted that “defendants disciplined and terminated Plaintiffs employment because they requested, inspected or disclosed the public records.” They
{¶59} The record demonstrates that the trial court‘s analysis gave proper consideration to the actions of each individual plaintiff because it concluded:
The undisputed evidence here is that Watson was seeking help with a personal matter unrelated to her employment with CMHA, and that both Lowe and Stamper were aware of the personal nature of Watson‘s request for help. The Cоurt finds that there can be no exception to the employment at-will doctrine for such circumstances.
{¶60} The third assignment of error is without merit.
{¶61} Judgment affirmed.
It is ordered that appellees recover from appellants 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.
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, A.J., and
LARRY A. JONES, SR., J., CONCUR