Cаssandra Wiltz, Plaintiff-Appellant, v. Accountancy Board of Ohio, Defendant-Appellee.
No. 14AP-645 (Ct.Cl. No. 2014-00431)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Rendered on June 23, 2015
[Cite as Wiltz v. Accountancy Bd. of Ohio, 2015-Ohio-2493.]
(REGULAR CALENDAR)
Cassandra Wiltz, pro se.
Michael DeWine, Attorney General, Emily M. Simmons and Christopher L. Bagi, for appellee.
APPEAL from the Court of Claims of Ohio
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Cassandra Wiltz, appeals from the July 16, 2014 judgment of the Court of Claims of Ohio granting the motion to dismiss filed by defendant-appellee, the Accountancy Board of Ohio (the “ABO“).
Facts and Procedural History
{¶ 2} On May 2, 2014, appellant filed a complaint against appellee. In the complaint, she alleged that a former employer terminated her employment and threatened her with retaliation when she complained about violations of law, professional standards, and ethics. She alleged the employer threatened to involve the ABO and that the ABO participated in the retaliation efforts by disseminating knowingly false and misleading claims and documents about her. Finally, appellant alleged that the actions of the ABO resulted in lost work and her ability to work in her chosen рrofession. She was
{¶ 3} On June 2, 2014, the ABO moved to dismiss the complaint pursuant to
{¶ 4} On July 16, 2014, the Court of Claims granted appellee‘s motion to dismiss pursuant to
- To the extent appellant was challenging any administrative determination of the ABO, the court lacked subject-matter jurisdiction.
- To the extent appellant alleges the ABO discriminated against her because of her race, she has not alleged an employer-employee relationship with the ABO, and, therefore, the discrimination claim does not fall within the scope of worker-protection statutes.
- To the extent appellant alleges the ABO discriminated against her because of her race in violation of the Ohio and federal constitutions, such discrimination claim is not actionable in the Court of Claims.
- To the extent appellant alleges she was not permitted to fully participate in an ABO hearing, such a claim involves due process and equal protection concerns, which are not actionable in the Court of Claims.
- To the extent appellant alleges a claim over which the court has jurisdiction, she has failed to identify any statutory or common law authority to support her contention that the ABO owed her a duty or that she can maintain a сause of action for monetary damages in the Court of Claims based upon the alleged breach.
To the extent appellant alleges the ABO is liable for performance or non-performance of a public duty, the state is generally immune from liability, pursuant to R.C. 2743.01(E)(1)(a) , and the complaint “conclusively shows that there was no special relationship between appellant and the ABO to warrant an exception to immunity pursuant toR.C. 2743.02(A) .
Appellant filed an appeal and raises five assignments of error, as follows:
- The Court of Claims abused its discretion and denied the plaintiff due process, when it dismissed the plaintiff‘s case on the basis of a sua sponte argument (namely, that the Court of Claims did not have jurisdiction to hear the plaintiff‘s case, because
R.C. 119.12 dictates that the Accountancy Board‘s refusal “to accept” and “to investigate” an ethics complaint from the plaintiff was an administrative determination of an аgency that could only be appealed in the Common Pleas Court). - The Court of Claims erred and made an improper application of the law, when it dismissed the plaintiff‘s case on the basis of a claim that it did not have jurisdiction to hear the case, because
R.C. 119.12 dictates that the Accountancy Board‘s refusal “to accept” and “to investigate” an ethics complaint from the plaintiff was an administrative determination of an agency that could only be appealed in the Common Pleas Court. - The Court of Claims erred and made an improper application of the law, when it dismissed the plaintiff‘s case on the basis of a claim that the plaintiff‘s discrimination charge did not fall within the scope of worker-protection statutes (because the plaintiff did not allege that she had an employer-employee relationship with the defendant).
- The Court of Claims erred, abused its discretion, and made an improper application of the law, when it ignored the true allegations of the plaintiff‘s complaint and dismissed the complaint on the basis of a claim that “the complaint charges the defendant with failing to perform a public duty (ie: the duty to investigate allegations against accountants that have been made to it) and the defendant is immune from liability regarding the non-perfomance of a public duty.”
The Court of Claims erred, made an improper applicatiоn of its own rules, and abused its discretion, when it ignored (and did not acknowledge or address, in any manner) the true charges and allegations of the plaintiff‘s complaint and it dismissed the complaint on the basis of claims that “the complaint failed to identify any statutory or common law authority” and “the complaint did not set forth any allegations that would entitle the plaintiff to relief.”
Standard of Review
{¶ 5}
{¶ 6} In deciding whether to dismiss a complaint, pursuant to
{¶ 7} In her first and second assignments of error, appellant alleges that the court abused its discretion, denied appellant due process, and improperly applied the law by dismissing the complaint when it sua sponte characterized appellant‘s claim as an appeal of an administrative determination of an agency pursuant to
{¶ 8} Accordingly, we find the first and second assignments of error to be moot.
Third Assignment of Error
{¶ 9} In thе third assignment of error, appellant alleges that the court erred and improperly applied the law by dismissing the complaint when it determined that appellant did not allege an employer-employee relationship with the ABO, and, therefore, her discrimination claim would not fall within the scope of worker protection. Appellant states that a discrimination claim is indeed one of the claims she made in her complaint. She argues, however, that, although a claim made pursuant to
{¶ 10}
It shall be an unlawful discriminatory practice:
(A) For any employer, because of the race, color, religion, sex, military status, national origin, disability, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, оr any matter directly or indirectly related to employment.
(Emphasis added.)
It shall be an unlawful discriminatory practice:
(I) For any person to discriminate in any manner against any other person because that person [1] has opposed any unlawful discriminatory practice defined in this section or [2] because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections
4112.01 to4112.07 of the Revised Code.
(Emphasis added.)
It shall be an unlawful discriminatory practice:
(J) For any person [1] to aid, abet, incite, compel, or coerce the doing of any act declared by this section to be an unlawful discriminatory practice, [2] to obstruct or prevent any person from complying with this chapter or any order issued under it, or [3] to attempt directly or indirectly to commit any act declared by this section to be an unlawful discriminatory practice.
(Emphasis added.)
{¶ 11} Appellant states in her brief that, in her complaint, she alleged violations of
“An employer of mine committed fraud and оther financial crimes and violated accounting laws * * * and laws against discrimination. The employer also terminated my employment and made threats, when I made complaints about the violations of laws (and solely because I made the complaints). One of the threats was that, if I told any investigative authority about their violations of laws, additional relation would be taken against me (which they would get * * * the Accountancy Board of Ohio to assist with).”
“The actions of the Accountancy Board of Ohio were taken, to assist others in retaliating against me (for making complaints about violations of federal and state laws), to prevent others from performing investigations of violations of federal and [state] laws (by my former employer and by others who have relationships with the Accountancy Board of Ohio), to cause me to lose work and my right to earn a living and because of my (black) race.”
(Emphasis added.) (Apрellant‘s Brief, 22, referring to Complaint, 6.) Appellant states in her brief that, “[a]s additional evidence of the Board‘s racially motivated animus, my Complaint also describes what occurred during an Accountancy Board meeting, when Board members singled me out and treated me in a manner that was not consistent with the manner in which it treated all Caucasian persons who attended the meeting.” (Appellant‘s brief, 19.) Appellant also states:
I also appeared at a 6/8/12 Board meeting, * * *[.] During the 6/8/12 meeting * * * the Board * * * would only allow me 2 to 4 minutes to speak [on the record] during the meeting (despite the fact that all of Caucasian people who came to the meeting were allowed an unlimited amount of time to speak).
(Appellant‘s Brief, 4.)
{¶ 12} Appellee argues that appellant failed to allege facts to establish that she fell within any of the protections of
{¶ 14} In addition to the excerpts from the complaint which were noted by appellant in her brief and are highlighted above, we also consider appellant‘s allegation that the ABO “also gave the [knowingly false and misleading information and documents] to my former employer, so that its agents could circulate them to others (and with knowledge that they intended to circulate them), including to my perspective [sic] employers and to others that I had made aware of the violations of laws.” (Complaint, 5.)
{¶ 15} Construing these excerpts from the complaint in a light most favorable to appellant and drawing all reasonable inferences in her favor, we find that appellant stated a claim in her complaint that the ABO violated
{¶ 16} We also find that the Court of Claims erred in dismissing appellant‘s discrimination claim pursuant to
{¶ 17} Accordingly, we sustain the third assignment of error to the extent appellant alleges violations of
Fifth Assignment of Error
{¶ 18} It is appropriate now to consider appellant‘s fifth assignment of error before considering her fourth assignment of error. In the fifth assignment of error, appellant alleges that the court erred, improperly applied its own rules, and abused its discretion by dismissing the complaint when it determined the complaint failed to identify any statutory or common law аuthority and did not set forth any allegations that would entitle appellant to relief.
{¶ 19} The trial court found that, to the extent appellant alleges a claim over which the court has jurisdiction, she has failed to identify any statutory or common law authority to support her contention that the ABO owed her a duty or that she can maintain a cause of action for monetary damages in the Court of Claims. The court stated: “In short, the complaint does not set forth allegations which, if proven, would entitle plaintiff to relief in this court.” (Judgment Entry, 3.) In making this finding, the Court of Claims construed her claim as an allegation that the ABO did not properly “investigate and consider the imposition of disciplinary action against accounting professionals.” (Judgment Entry, 4.) The court concluded that such investigation and consideration constitutes a public duty.
{¶ 21} It is true that appellant does not specifically name her causes of action, and we agree that, upon reading the complaint, they are difficult to decipher. However, as noted аbove, Ohio is a notice pleading state. Therefore, appellant was not required to plead a legal theory of recovery. We have already found above that appellant stated a claim of discrimination pursuant to {¶ 22} “Defamation involves the publication of a false statement ’ “made with some degree of fault, reflecting injuriously on a person‘s reputation, or exposing a person to public hatred, contempt, ridicule, shamе or disgrace, or affecting a person adversely in his or her trade, business or profession.” ’ ” Mehta v. Ohio Univ., 194 Ohio App.3d 844, 855, 2011-Ohio-3484, ¶ 26 (10th Dist.), quoting Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, ¶ 9, quoting A & B–Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 7 (1995). The elements of defamation are: ” ’ “(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm cаused by the publication.” ’ ” Mehta, quoting Mallory v. Ohio Univ., 10th Dist. No. 01AP-278 (Dec. 20, 2001), quoting Akron-Canton Waste Oil, Inc. v. Safety-Kleen Oil Serv., Inc., 81 Ohio App.3d 591 (9th Dist.1992), quoting 3 Restatement (Second) of the Law (1977), 155, Section 558. “Slander” is defamation in its spoken form, while “libel” is written or printed. Schmidt v. Northcoast Behavioral Healthcare, 10th Dist. No. 10AP-565, 2011-Ohio-777, ¶ 8, citing Matikas v. Univ. of Dayton, 152 Ohio App.3d 514, 2003-Ohio-1852, ¶ 27. We conclude that the factual allegations appellant asserted in her {¶ 23} We also find that the Court of Claims erred in dismissing appellant‘s defamation claim pursuant to {¶ 24} Accordingly, we sustain appellant‘s fifth assignment of error. {¶ 25} Finally, we turn to appellant‘s fourth assignment of error. In her fourth assignment of error, appellant alleges that the trial court erred and improperly applied the law by dismissing hеr complaint when it determined that her complaint alleged that the ABO failed to perform a public duty and that public duty immunity would, therefore, protect the ABO from liability. (Appellant‘s Brief, 24.) Appellant argues that aiding and assisting another with retaliating against appellant “because [she] made charges about its racially motivated discriminatory behavior” is not a “public duty” immune from liability. She further argues that “[1] engaging in racially motivated retaliation, [2] circulating known false documents and claims about me ‘directly to my prospective employers and to others,’ [3] damaging my reputation, and [4] interfering with my ability to work and earn a living are not ‘public duties’ subject to {¶ 26} (a) Except as provided in division (A)(3)(b) of this section, the state is immune from liability in any civil action or proceeding involving the performance or nonperformance of a public duty, including the performance or nonperformance of a public duty that is owed by the state in relation to any action of an individual who is committed to the custody of the state. (b) The state immunity provided in division (A)(3)(a) of this section does not apply to any action of the state under circumstances in which a special relationship can be established between the state and an injured party. {¶ 27} “Public duty” includes, but is not limited to, any statutory, regulatory, or assumed duty concerning any action or omission of the state involving any of the following: Permitting, certifying, licensing, inspecting, investigating, supervising, regulating, auditing, monitoring, law enforcеment, or emergency response activity[.] (Emphasis added.) {¶ 28} In determining that {¶ 29} Accordingly, we overrule in part and sustain in part appellant‘s fourth assignment of error. {¶ 30} For the reasons stated above, we find appellant‘s first and second assignments of error to be moot. We overrule in part and sustain in part her third assignment of error, overrule in part and sustain in part her fourth assignment of error, and sustain her fifth assignment of error. Accordingly, the judgment of the Court of Claims is affirmed in part, but we reverse the judgment dismissing appellant‘s discrimination and defamation claims pursuant to Judgment affirmed in part; reversed in part; cause remanded. KLATT and SADLER, JJ., concur. __________________Fourth Assignment of Error