[Cite as George v. Newburgh Hts., 2012-Ohio-2065.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97320
MICHAEL GEORGE PLAINTIFF-APPELLEE
vs.
VILLAGE OF NEWBURGH HEIGHTS, ET AL. DEFENDANTS-APPELLANTS
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-738114
BEFORE: Blackmon, A.J., Celebrezze, J., and Rocco, J. RELEASED AND JOURNALIZED: May 10, 2012 ATTORNEY FOR APPELLANTS
John D. Latchney Tomino & Latchney, L.L.C., L.P.A. 803 East Washington Street, Suite 200 Medina, Ohio 44256
ATTORNEYS FOR APPELLEE
Lewis A. Zipkin Greer A. Hopkins David M. Smith Zipkin Whiting Co., L.P.A. The Zipkin Whiting Building 3637 South Green Road Beachwood, Ohio 44122 PATRICIA ANN BLACKMON, A.J.:
{¶1} Appellant village of Newburgh Heights (“the Village”), appeals the trial
court’s decision denying its motion for summary judgment. The Village argues it is
immune from liability towards its former employee Detective Michael George and assigns
the following error for our review:
I. The trial court erred in denying the Village’s motion for summary judgment, which asserted R.C. Chapter 2744 immunity for plaintiff’s intentional infliction of emotional distress claim.
{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s
decision. The apposite facts follow.
{¶3} Appellee Detective Michael George (“Detective George”), filed a complaint
against the Village and the Newburgh Heights Police Department for termination of his
employment after more than a decade of service. He claimed damages under Ohio’s
Whistleblower Protection Act, retaliation, wrongful termination, defamation per quod,
defamation per se, and intentional infliction of emotional distress against both the Village
and the police department.
{¶4} Subsequently, Detective George did not oppose the police department’s
motion to dismiss, which was ultimately granted by the trial court.
{¶5} After significant motions practice, the Village filed its motion for summary
judgment claiming that Detective George’s layoff was based on the extreme financial challenges it had been experiencing; additionally, it argued immunity from Detective
George’s intentional tort claims.
{¶6} Detective George filed his motion in opposition and countered that the
Village’s reason was pretextual. Specifically, Detective George argued that the Village’s
action was motivated by the internal investigation he had started involving the corrupt and
illegal activities prevailing in the mayor’s office, the service department, the fire
department, and the police department.
{¶7} On September 15, 2011, the trial court granted the Village’s motion for
summary judgment on Detective George’s defamation per quod and defamation per se
claims, but denied it on the remaining claims.
Summary Judgment
{¶8} In the sole assigned error, the Village argues the trial court erred in denying
its motion for summary judgment because it is immune from intentional tort claims under
R.C. Chapter 2744.
{¶9} At the outset, we conclude that this is a final, appealable order. The trial
court denied the Village’s motion for summary judgment; consequently, the Village may
appeal. See R.C. 2744.02(C); Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873
N.E.2d 878.
{¶10} We review an appeal from summary judgment under a de novo standard of
review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th
Dist.1997). Accordingly, we afford no deference to the trial court’s decision and
independently review the record to determine whether summary judgment is appropriate.
{¶11} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine
issue as to any material fact exists, (2) the party moving for summary judgment is entitled
to judgment as a matter of law, and (3) when viewing the evidence most strongly in favor
of the nonmoving party, reasonable minds can reach only one conclusion that is adverse
to the non-moving party.
{¶12} The moving party carries an initial burden of setting forth specific facts
that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio
St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264. If the movant fails to meet this
burden, summary judgment is not appropriate; if the movant does meet this burden,
summary judgment will be appropriate only if the nonmovant fails to establish the
existence of a genuine issue of material fact. Id. at 293.
{¶13} In the instant case, the Village argues Detective George’s intentional
infliction of emotional distress is barred under Chapter 2744 of the Ohio Revised Code.
Determining whether a political subdivision has immunity under Chapter 2744 of the
Ohio Revised Code generally involves a three-tiered analysis. Lambert v. Clancy, 125
Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, at ¶ 8. 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 Human Serv., 70 Ohio St.3d 450, 639 N.E.2d 105 (1994);
Brady v. Safety–Kleen Corp., 61 Ohio St.3d 624, 576 N.E.2d 722 (1991); Thayer v. W.
Carrollton Bd. of Edn., 2d Dist. No. 20063, 2004-Ohio-3921; Terry v. Ottawa Cty. Bd. of
Mental Retardation & Developmental Disabilities, 151 Ohio App.3d 234, 783 N.E.2d 959
(6th Dist.2002); and Chase v. Brooklyn City School Dist., 141 Ohio App.3d 9, 749 N.E.2d
798 (8th Dist.2001).
{¶14} However, the most logical beginning for our political-subdivision-immunity
analysis is R.C. 2744.09, which removes certain actions from the purview of R.C. Chapter
2744. Section 2744.09(B) of the Ohio Revised Code provides that “[t]his chapter does
not apply to, and shall not be construed to apply to * * * [c]ivil actions by an employee *
* * against his political subdivision relative to any matter that arises out of the
employment relationship between the employee and the political subdivision[.]” In
Penn Traffic Co. v. AIU Ins. Co., 99 Ohio St.3d 227, 2003-Ohio-3373, 790 N.E.2d 1199,
the Supreme Court of Ohio recognized that an injury suffered by an employee because of
his employer’s intentionally tortious conduct “must arise out of or in the course of
employment; otherwise, there can be no employer intentional tort.” Id.
{¶15} Thus, when an employee of a political subdivision brings a civil action
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[Cite as George v. Newburgh Hts., 2012-Ohio-2065.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97320
MICHAEL GEORGE PLAINTIFF-APPELLEE
vs.
VILLAGE OF NEWBURGH HEIGHTS, ET AL. DEFENDANTS-APPELLANTS
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-738114
BEFORE: Blackmon, A.J., Celebrezze, J., and Rocco, J. RELEASED AND JOURNALIZED: May 10, 2012 ATTORNEY FOR APPELLANTS
John D. Latchney Tomino & Latchney, L.L.C., L.P.A. 803 East Washington Street, Suite 200 Medina, Ohio 44256
ATTORNEYS FOR APPELLEE
Lewis A. Zipkin Greer A. Hopkins David M. Smith Zipkin Whiting Co., L.P.A. The Zipkin Whiting Building 3637 South Green Road Beachwood, Ohio 44122 PATRICIA ANN BLACKMON, A.J.:
{¶1} Appellant village of Newburgh Heights (“the Village”), appeals the trial
court’s decision denying its motion for summary judgment. The Village argues it is
immune from liability towards its former employee Detective Michael George and assigns
the following error for our review:
I. The trial court erred in denying the Village’s motion for summary judgment, which asserted R.C. Chapter 2744 immunity for plaintiff’s intentional infliction of emotional distress claim.
{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s
decision. The apposite facts follow.
{¶3} Appellee Detective Michael George (“Detective George”), filed a complaint
against the Village and the Newburgh Heights Police Department for termination of his
employment after more than a decade of service. He claimed damages under Ohio’s
Whistleblower Protection Act, retaliation, wrongful termination, defamation per quod,
defamation per se, and intentional infliction of emotional distress against both the Village
and the police department.
{¶4} Subsequently, Detective George did not oppose the police department’s
motion to dismiss, which was ultimately granted by the trial court.
{¶5} After significant motions practice, the Village filed its motion for summary
judgment claiming that Detective George’s layoff was based on the extreme financial challenges it had been experiencing; additionally, it argued immunity from Detective
George’s intentional tort claims.
{¶6} Detective George filed his motion in opposition and countered that the
Village’s reason was pretextual. Specifically, Detective George argued that the Village’s
action was motivated by the internal investigation he had started involving the corrupt and
illegal activities prevailing in the mayor’s office, the service department, the fire
department, and the police department.
{¶7} On September 15, 2011, the trial court granted the Village’s motion for
summary judgment on Detective George’s defamation per quod and defamation per se
claims, but denied it on the remaining claims.
Summary Judgment
{¶8} In the sole assigned error, the Village argues the trial court erred in denying
its motion for summary judgment because it is immune from intentional tort claims under
R.C. Chapter 2744.
{¶9} At the outset, we conclude that this is a final, appealable order. The trial
court denied the Village’s motion for summary judgment; consequently, the Village may
appeal. See R.C. 2744.02(C); Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873
N.E.2d 878.
{¶10} We review an appeal from summary judgment under a de novo standard of
review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th
Dist.1997). Accordingly, we afford no deference to the trial court’s decision and
independently review the record to determine whether summary judgment is appropriate.
{¶11} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine
issue as to any material fact exists, (2) the party moving for summary judgment is entitled
to judgment as a matter of law, and (3) when viewing the evidence most strongly in favor
of the nonmoving party, reasonable minds can reach only one conclusion that is adverse
to the non-moving party.
{¶12} The moving party carries an initial burden of setting forth specific facts
that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio
St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264. If the movant fails to meet this
burden, summary judgment is not appropriate; if the movant does meet this burden,
summary judgment will be appropriate only if the nonmovant fails to establish the
existence of a genuine issue of material fact. Id. at 293.
{¶13} In the instant case, the Village argues Detective George’s intentional
infliction of emotional distress is barred under Chapter 2744 of the Ohio Revised Code.
Determining whether a political subdivision has immunity under Chapter 2744 of the
Ohio Revised Code generally involves a three-tiered analysis. Lambert v. Clancy, 125
Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, at ¶ 8. 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 Human Serv., 70 Ohio St.3d 450, 639 N.E.2d 105 (1994);
Brady v. Safety–Kleen Corp., 61 Ohio St.3d 624, 576 N.E.2d 722 (1991); Thayer v. W.
Carrollton Bd. of Edn., 2d Dist. No. 20063, 2004-Ohio-3921; Terry v. Ottawa Cty. Bd. of
Mental Retardation & Developmental Disabilities, 151 Ohio App.3d 234, 783 N.E.2d 959
(6th Dist.2002); and Chase v. Brooklyn City School Dist., 141 Ohio App.3d 9, 749 N.E.2d
798 (8th Dist.2001).
{¶14} However, the most logical beginning for our political-subdivision-immunity
analysis is R.C. 2744.09, which removes certain actions from the purview of R.C. Chapter
2744. Section 2744.09(B) of the Ohio Revised Code provides that “[t]his chapter does
not apply to, and shall not be construed to apply to * * * [c]ivil actions by an employee *
* * against his political subdivision relative to any matter that arises out of the
employment relationship between the employee and the political subdivision[.]” In
Penn Traffic Co. v. AIU Ins. Co., 99 Ohio St.3d 227, 2003-Ohio-3373, 790 N.E.2d 1199,
the Supreme Court of Ohio recognized that an injury suffered by an employee because of
his employer’s intentionally tortious conduct “must arise out of or in the course of
employment; otherwise, there can be no employer intentional tort.” Id.
{¶15} Thus, when an employee of a political subdivision brings a civil action
against the political subdivision alleging an intentional tort, that civil action may qualify
as a “matter that arises out of the employment relationship” within the meaning of R.C.
2744.09(B). Sampson v. Cuyahoga Metro. Hous. Auth., Slip Opinion No. 2010–1561,
2012-Ohio-570. Because intentional torts can arise out of the employment relationship with respect to R.C. 2744.09(B), we must now look to the totality of the circumstances
and determine whether Detective George’s claim for intentional infliction of emotional
distress actually did arise out of the employment relationship with the Village.
{¶16} The facts of this case clearly indicate that Detective George’s claims stem
from his employment with the Village. The record indicates that between September
2009 and July 2010, when George was laid off by the Village, he was conducting a
number of internal investigations. The investigations included, but were not limited to,
police brutality, use of excessive force, perjured search warrants, sexual contact with a
17-year-old girl by a police officer, and an illicit sexual relationship in the police
department’s unmarked police vehicle.
{¶17} In addition, during the same period, Detective George was investigating
suspected cocaine use by the Village’s fire chief, clerk treasurer, and the service director.
Specifically, Detective George was investigating an eyewitness account of cocaine use by
the aforementioned three individuals at a softball party at the Crankshaft Tavern.
{¶18} Detective George reported the findings of the internal investigation to the
police chief, who was terminally ill and unable to provide much support. In May 2010,
Detective George sought the outside assistance of the Cuyahoga County Sheriff’s
Department and Federal Bureau of Investigation. Detective George’s decision to seek
outside assistance with his internal investigation became widely known within the police
department and the Village. {¶19} In July 2010, roughly 30 days after Detective George sought outside
assistance with his internal investigation, the Village’s city council voted to lay him off.
The record indicates that at the time of his layoff, Detective George was the only full-time
employee and the only detective in the Village’s police department.
{¶20} Detective George maintains that the Village’s decision to lay him off was
in retaliation for the internal investigation he was pursuing. Detective George testified
at his deposition that the Service Director, Jose Padilla, who was one of the subjects of
his internal investigation, is married to one of the council members, who voted to lay him
off.
{¶21} Detective George further testified that in the months preceding his lay off,
and in the weeks immediately following, he was subjected to a smear campaign.
Detective George stated that Officer Bobby Hoover told an agent of the Bureau of
Criminal Investigation that he was investigating Detective George at the behest of Derek
Kinder, the Mayor of the Village. Officer Hoover also began telling people that
Detective George was a “dirty cop.” Specifically, Officer Hoover told Detective Dean
Weinhardt of the Brunswick Police Department that Detective George was a “dirty cop.”
Weinhardt Depo. at 13. Detective George further testified that Office Hoover, while on
duty, told people throughout the Village that he was a “dirty cop,” a “coward,” and that he
was being investigated.
{¶22} Detective George stated that his professional reputation suffered as a result
of the Village’s smear campaign. Detective George stated that people began treating him differently and that even Detective Weinhardt, with whom he had talked to about
employment prospects, became noticeably less welcoming after Officer Hoover told him
that he was a “dirty cop.” Detective George eventually sought psychological help and was
diagnosed with chronic Post Traumatic Stress Disorder, brought on from being subjected
to constant stress, threats, and exposure to illegal acts that he was powerless to address.
{¶23} Here, the totality of the circumstances indicates that Detective George’s
claim of intentional infliction of emotional distress flowed from the actions taken by the
Village in response to the internal investigation he was conducting. For example, the
impact of Officer Hoover telling members of the Bureau of Criminal Investigation that
Detective George was being investigated, and telling Detective Weinhardt that Detective
George was a “dirty cop” arguably had a negative effect. Also, Detective Hoover
making the same statements to residents of the Village would no doubt undermine
Detective George’s effectiveness in the exercise of his duties.
{¶24} Thus, it is clear from the above that Detective George’s claims stem from
his employment with the Village. Consequently, we conclude that R.C. 2744.09(B) bars
the Village from raising immunity pursuant to Chapter 2744. Therefore, summary
judgment was properly denied with respect to Detective George’s claim of intentional
infliction of emotional distress asserted against the Village.
{¶25} Finally, genuine issues of material fact exists as to whether Detective
George’s layoff was triggered by the Village’s claim that the municipality was in the grips
of financial turmoil. Despite the Village’s exhaustive rendition, alleging a bleak financial climate, the record suggests otherwise. Corporal Terry Aytay, of the Village’s
police department, testified at his deposition as follows:
Q. Is it a fair statement that since Mike George left the department has spent considerable money buying new vehicles?
A. Yes. In fact —
Q. Yes? I saw you wanted to add something about the vehicles.
A. Well, I just like — it almost seems like they hit the lottery, because there is so much money going around now it’s unbelievable.
***
Q. And they are spending considerable amount of money in the Service Department and the Police Department, correct?
A. In the Service Department, I know they are. In the Police Department, they got employees working on stuff inside. * * * I know they are getting new windows. I don’t know if that’s the police department proper. I think that’s the village. I know they got new cars, two cars, they’re getting new windows in the place.
Q. Based on your position as corporal and acting person in charge for a few weeks after Mike George left, is it your assessment that using the economy as an excuse to get rid of Mike George was protectoral?
Mr. Latchney: Objection.
A. Yes. Yeah, I did the budget for the department and they never approved the budget. It wasn’t until just, I want to say, a month ago that the budget was finally approved, that they finally gave numbers to them to say ‘Yeah, okay, this is how much you got.’ Again that’s business — that’s what’s always going on.
Q. Without a budget, council couldn’t make valid decisions about employment, correct?
A. Correct. Q. Are you saying that council didn’t have budget numbers to make an informed decision about whether or not the village could really continue having Detective George as a full-time police officer?
A. I don’t know when I sent, but I sent the budget that I made up for the department to council members because they were told that the police department didn’t have a budget yet. So I sent the budget to the respective council members.
Q. All right. Based on the fact that you actually did the budget, was it viable for the police department to continue having a full-time detective? A. Yes. It was always my contention that I don’t understand why we didn’t — well, I understand why, but I didn’t understand the premise of getting rid of full-timers. Aytay Depo. 67-69.
{¶26} A review of the above excerpt and elsewhere in the record reveals
inconsistencies regarding the Village’s financial situation. Corporal Aytay prepared the
budget for the police department, and he concluded that no reason existed for the Village
to lay off Detective George. At a minimum, the Village’s very noticeable monetary
expenditures, immediately following Detective George’s departure, raises genuine issues
of fact as to whether their stated reason for laying him off was pretextual or not. As
such, the trial court properly denied the Village’s motion for summary judgment.
Accordingly, we overrule the sole assigned error.
{¶27} Judgment affirmed.
It is ordered that appellee recover from appellants his 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.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., CONCURS; KENNETH A. ROCCO, J., CONCURS IN JUDGMENT ONLY
KENNETH A. ROCCO, J., CONCURRING IN JUDGMENT ONLY:
{¶28} Although I am constrained to agree with the majority’s disposition of the
Village’s assignment of error in light of the Ohio Supreme Court’s decision in Sampson,
Slip Opinion No. 2012-Ohio-570, I write separately to express my belief that a broad
interpretation of R.C. 2744.09(B) is unwarranted.
{¶29} In my opinion, the intent of the statutory language is to prevent
governmental entities from using Chapter 2744 immunity to defend wrongful discharge,
wrongful promotion, and other such employment claims. This does not mean that a
cabal of government officials cannot be liable individually for intentional torts, such as
alleged in this case. But, because I believe such acts would be ultra vires for a municipal
corporation, for which the taxpayers should not be responsible, I therefore believe the
words “arising out of the employment relationship” should be construed more narrowly.
{¶30} For that reason, I concur in judgment only.