Police Chief Loses Qualified Immunity Argument After Having HR Consultant Arrested on Misdemeanor Charges Allegedly to Retaliate or Intimidate Her

Every now and then a case shows up that even I – in my jaded old age – find jaw dropping.  This morning was one of those times.  A local HR Consultant was arrested and incarcerated for 36 hours in connection with an internal investigation in northeast Ohio.  Needless to say, the Police Chief (who was a subject of that investigation and arranged for her arrest and incarceration) was promptly placed on leave and then fired.  After she subsequently brought suit against him and the Township for, among other things, abuse of process, he claimed qualified immunity because he had probable cause to have her arrested for a misdemeanor charge.  The Court noted that he had confused malicious prosecution (where there was no probable cause) with abuse of process.  “The premise of an abuse of process claim is that a process has been abused, not that it was illegal to invoke the process by proceeding without probable cause.”  Further, there was sufficient evidence that he sought to silence the Consultant to preserve his employment, not merely to see her justly prosecuted for a misdemeanor offense.  Therefore, evidence of his malicious purpose in having her arrested was sufficient to justify denial of qualified immunity.  McDowell v. Pomesky, No. 26-3027 (6^th Cir. Oct. 26, 2026).

According to the Court’s opinion, the Consultant was engaged by the Township to audit its human resources practices and concerns with the Police Chief.  In the course of her audit, she discovered a number of complaints against the Chief.  She also discovered that he was monitoring which employees she spoke with (possibly to intimidate them) and had opened an investigation (in retaliation) against the person who told her about his monitoring.  She provided a draft report to the Township about the issues with the Chief and became concerned that he would retaliate against her when he not-so-subtly -informed her that he knew her home address. She responded with a false bluff that she was aware someone had looked her up on LEADS, and he promptly investigated whether that LEADS report had been generated from the Township department.  Several days later, he convinced a local prosecutor that she had engaged in misdemeanor falsification and obstruction of official business and obtained an arrest warrant from a judge.   Typically, misdemeanor arrests are only made in that County and  misdemeanors are only subject to a summons, not an arrest.  (In fact, no misdemeanor warrants had been issued or arrests occurred outside the County in the Chief’s memory or career).  However, the Chief arranged for the Consultant to be arrested in Franklin County, where she was held for 36 hours.   At no time had the Township ever arranged for someone to be arrested for a misdemeanor more than 4 hours away, like the Consultant.

After the defendants moved for summary judgment, the District Court agreed that the Consultant had sufficient evidence to show that the Chief had engaged in abuse of process – i.e., “whether [the Chief] perverted the process for an ulterior purpose.”  It also found qualified “immunity under Ohio law does not extend to government employees who act “with malicious purpose, in bad faith, or in a wanton or reckless manner.” The Chief appealed only the denial of qualified immunity.

In Ohio, municipal employees enjoy a “presumption of immunity.”  . . .  But that immunity does not extend to employees whose “acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.” Ohio Rev. Code Ann. § 2744.03(A)(6)(b). [The Consultant] alleges both malice and bath faith. For malice, an employee must act with “the willful and intentional design to do injury or the intention or desire to harm another, usually seriously, through conduct which is unlawful or unjustified.”  . . .  An employee acts in “bad faith” when they have “dishonest purpose,” engage in “conscious wrongdoing,” or breach a “known duty through some ulterior motive or ill will.”  . . .  The question of “[w]hether a government employee acted with the intent necessary to overcome the presumption of immunity is typically a jury question.”  . . .

 Here, [the Chief] argues that he is entitled to statutory immunity because he had a reasonable justification for investigating, charging, and arresting [the Consultant] and because his actions were “authorized” under Ohio law.  . . .  But viewing the evidence in the light most favorable to [the Consultant], a reasonable jury could conclude that [his] actions nonetheless evinced malice or bad faith.  Consider even just a few parts of the record that raise a material question as to whether [he] acted with an intent to harm [her] or with a dishonest purpose. [The Consultant], for example, presented evidence that [his] decision to seek and enforce an arrest warrant was contrary to the police department’s policy for misdemeanor offenses. Various officers in the department—including [him]—could not identify a single instance in  their entire careers where misdemeanor charges had been handled in a similar manner. A reasonable jury could find that [he] deviated from the department’s arrest policy for the dishonest purpose of hampering or halting [her] investigation into him by incarcerating her. (italics added for emphasis).

[The Chief] contends that he is entitled to immunity because his decision to arrest [the Consultant]  was supported by probable cause; he emphasizes that a prosecutor brought the charges and a judge signed off on the arrest warrant.  . . . . But [he] does not cite authority for the proposition that the presence of probable cause is, by itself, enough to guarantee immunity. Nor could he: The first element of a claim for abuse of process is “that a legal proceeding has been set in motion in proper form and with probable cause.”  . . . The premise of an abuse of process claim is that a process has been abused, not that it was illegal to invoke the process by proceeding without probable cause. The latter sounds in malicious prosecution, a distinct claim that [he] improperly conflates with abuse of process.  . . .  So if probable cause could confer statutory immunity, as [he] asserts, government employees would have immunity against all properly pleaded claims of abuse of process and could pursue malicious and bad faith actions with impunity.

The Court also rejected the Chief’s attempt to rely on an Ohio Supreme Court decision’s footnote (which is always dicta) because that decision concerned the merits of an abuse of process claim, and not the issue of qualified immunity, which is governed by statute.

Next, [the Chief] contends that because his actions were “authorized,” he is entitled to statutory immunity. This argument too is unavailing because it conflates two different legal questions. His argument rests on a footnote in Yaklevich, an Ohio Supreme Court case. Yaklevich explains the second element of an abuse of process claim, which requires that “the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed.” Id. The footnote states: “Therefore, ‘there is no liability [for abuse of process] where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.’” Id. at 118 n.2 (quoting Prosser & Keeton on the Law of Torts 898 (W. Page Keeton et al. eds., 5th ed.1984)). [The Chief] reasons that because his conduct falls within that footnote’s safe harbor, he did not act with the malice or bad faith required to overcome immunity under § 2744.03(A)(6)(b).

The problem for [the Chief] is that Yaklevich addresses the merits (i.e., what makes the misuse of process tortious), whereas § 2744.03(A)(6)(b) addresses the official’s culpable state of mind for immunity purposes. Whether [the Chief] “perverted” the criminal process is therefore not necessarily coextensive with whether he acted with malicious purpose or in bad faith in pursuing them. Indeed, as Yaklevich’s footnote itself suggests, a defendant can carry a legal process to its authorized conclusion but still have a dishonest purpose. See e.g., Buehner v. City of Cleveland, 788 F. Supp. 3d 827, 914, 921-22 (N.D. Ohio 2025) (holding that allegations of fabricated evidence rose to the level of bad faith or malice necessary to defeat statutory immunity but failed to establish abuse of process absent an ulterior purpose beyond securing a conviction). And here, a reasonable jury could find that [the Chief] exercised otherwise lawful discretion for the dishonest purpose of protecting his job by discrediting and silencing [the Consultant].

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Court of Appeals Refuses to Enforce Non-Compete or Award Damages and Dismisses Counterclaims.

On Monday, the Warren County Court of Appeals upheld the dismissal of both the employer and contractor’s claims involving the enforcement of a non-compete clause and abuse of process claims. Reliant Serv. MJF, L.L.C. v. Brown, 2025-Ohio-5364.   The Court treated the non-complete clause involving the independent contractor as though he were an employee of the employer contracting business.   It found that the clause was unenforceable because it was overly broad in prohibiting all competition and in failing to show any protectible interest such as an investment in training the contractor or in confidential information.  In its breach of contract claim, the employer also failed to show that its level of business with that customer (or any other customer) had declined as a result of the allegedly unfair competition.  The court also refused to award the individual damages for the amount of lost income he suffered while the TRO was in effect because he was limited to the amount of bond required for the TRO and failed to challenge the low amount with evidence.  It also found that he could not prevail on his counterclaims because the employer was permitted to file a lawsuit, even if it lost on the merits of its claim. 

According to the Court's opinion, the plaintiff employer ran a construction staffing business where it would supply individuals to complete the “punch lists” for newly constructed homes (i.e., drywall repairs, painting, etc.)  It hired the defendant individual/independent contractor in 2013.  He already had 25 years of experience as a handyman and did not receive any training to perform his assignments.  The employer had a large customer and a few smaller ones.   In 2013, it required its employees and contractors to sign a non-compete form which prevented them from competing or providing services to identified customers, including Ryan Homes.  The defendant signed that form and began performing assignments, including for Ryan Homes.   When another court found the form unenforceable, the employer required the contractors to sign an independent contractor agreement which contained a different non-compete clause preventing any competition for one year.    The defendant also signed that agreement, but the employer mysteriously back dated it to 2013. 

The defendant formed his own contracting/handyman business in September 2021 and began performing work for his new business for Ryan Homes as well as for the employer.  He then resigned from the employer in October 2021.  The employer discovered his competition with Ryan Homes and filed suit in March 2022 and obtained a TRO against the competition and was only required to post a $1K bond.   While the magistrate initially enforced the non-competition agreements, the trial court in December ultimately dissolved the TRO and preliminary injunctions, but also rejected the counter claims for abuse of process and tortious interference.   The court also refused to award damages of $115K which the defendant claimed to have lost as income while the TRO and PI were in force and limited the defendant to the $1K bond.  Both parties appealed and the Court of Appeals affirmed.

First, the courts refused to treat the non-compete form and independent contractor agreement clause as integrated.  The employer argued that the defendant should at least be enjoined from working for Ryan Homes because it was specifically identified on the non-compete form.  However, the magistrate and trial found that the clause replaced the form and the employer had failed to appeal that finding.    In any event, the courts concluded that the clause was overly broad because it contained no geographic restrictions.  The employer’s business was concentrated in four counties, but the clause prevented all competition, even outside that area.   

A noncompete covenant is reasonable if (1) its restrictions are not greater than what is required to protect the employer, (2) it does not impose an undue hardship on the employee, and (3) it is not injurious to the public. Id. at 26. In determining the validity of a noncompete covenant, each case must be decided on its own facts. Id. at 25. A plaintiff seeking to enforce a noncompete covenant must establish, by clear and convincing evidence, each of the three elements above.  . . .

In determining whether a noncompete covenant is reasonable, a court should consider the following factors: (1) the absence or presence of limitations as to time and space, (2) whether the employee represents the sole contact with the customer, (3) whether the employee is possessed with confidential information or trade secrets, (4) whether the covenant seeks to eliminate competition which would be unfair to the employer or merely seeks to eliminate ordinary competition, (5) whether the covenant seeks to stifle the inherent skill and experience of the employee, (6) whether the benefit to the employer is disproportional to the detriment to the employee, (7) whether the covenant operates as a bar to the employee's sole means of support, (8) whether the employee's talent which the employer seeks to suppress was actually developed during the period of employment, and (9) whether the forbidden employment is merely incidental to the main employment.

 . . . The Contract's noncompete clause is a statewide, if not worldwide, limitation from employment with any of [the employer’s] home-builder clients for a period of one year. A one-year time period for a noncompete covenant is generally reasonable.  . . . However, in the circumstances of this case, where [the defendant] only performed work for [the employer’s] client, Ryan Homes, in Ohio's four southwest counties, the lack of any geographic limitations makes the noncompete clause unduly restrictive. . . . .

Further, the employer failed to show a protectible interest.  The clause was not tailored to prevent the misuse of confidential or trade secret information.  Further, while such clauses are enforceable to prevent unfair competition and to protect an investment in employees, they are not enforceable to prevent fair competition.  There was no evidence that the employer had invested in any special training of the defendant.  Rather, he was hired because of his extensive prior experience and the employer could not prevent him from using his previously acquired skills to compete against it.   

An employer's legitimate interests in utilizing a noncompete covenant include "prevent[ing] the disclosure of a former employer's trade secrets or the use of the former employer's proprietary customer information to solicit the former employer's customers."  . . .  Another legitimate purpose of a noncompete covenant is the retention of employees in which an employer has invested time and other resources.  . . .  However, this case did not implicate trade secrets or confidential information. Moreover, the record plainly shows that [the employer] did not invest time and money in training [the defendant], and did not play any role in [his] development as a skilled and professional punch-list contractor. Rather, [he] worked as a handyman providing handyman and punch-list services for 25 years prior to his employment with [it]. Stated differently, [his] knowledge and skills were not developed or improved while he was a[n] . .  independent contractor. Noncompete covenants that prevent an employee from using his or her general skills and experience in the marketplace weigh against enforcement.  . . .  In addition, while the record indicates [he] dealt directly with Ryan Homes in scheduling work as a[n]independent contractor, he was not the sole contact with Ryan Homes.

Nonetheless, the Courts found that the defendant was not unduly harmed because the clause had never been enforced to prevent him from using his skills in other contexts, such as a handyman or in other commercial construction.

Despite an employer's interests, enforcement of a noncompete covenant cannot cause undue hardship on a former employee.  . . . "To be sure, any person who is prevented from practicing his profession or trade for a period of time in an area in which it has been practiced, suffers some hardship.  However, the Raimonde test requires more than just some hardship."  . . .  "The public's interest in determining the reasonableness of a noncompete [covenant] 'is primarily concerned with . . . promoting fair business competition.'"   . . .  In highly competitive industries, enforcement of noncompete covenants are often found to not adversely affect the industry or harm the public in limiting the public's options in obtaining goods and services. Id.

[The Defendant] is providing the same type of punch-list services for Ryan Homes now as he did for it when he worked as a[n] independent contractor. The forbidden employment is therefore not merely incidental to the main employment under the ninth Raimonde factor. Although the Contract's noncompete clause prevents [him] from working for or with [the employer’s] home-builder clients for a period of one year, it does not act as a complete bar to his sole means of support or stifle his inherent skills and experience. Fenik testified that [the employer] does not prevent current and former independent contractors from providing general handyman services or landscaping to residential property owners or from working in commercial construction. Fenik stated that many individuals working for [it], in fact, do side work on the weekends or if they have an opening in their work schedule. [The defendant’s] testimony revealed that during the nine months the preliminary injunction was in effect, he did not seek any alternative handyman employment or work in commercial construction. Moreover, although the record shows [he] worked mostly, if not exclusively, for Ryan Homes as a[n]independent contractor, he never inquired of [the employer] if he could work for its other home-builder clients during the nine-month preliminary injunction. The Raimonde test requires more than just some hardship. [He] did not show that he could not readily obtain a position or establish a non-competing practice.  . . .  Thus, the fifth and seventh Raimonde factors weigh in favor of enforcing the Contract's noncompete clause.

In addition, as for the employer’s breach of contract claim – which was tried in 2024, it failed to show that it had suffered any financial losses.  It sought a percentage of the fees which the defendant had earned from  Ryan Homes.  However, it continued to receive the same amount of business from Ryan Homes before and after the period when the defendant competed against it.  Any business he took was from other competitors, not the defendant: “there is no evidence this business would have gone to [the employer].”

The Court also affirmed the dismissal of the defendant’s counterclaims.  It refused to find that the act of filing a lawsuit can constitute tortious interference merely because the employer could not meet the clear and convincing evidence standard of evidence:

Turning to [his] argument, [the employer’s] mere resort to filing a civil lawsuit against [him] and seeking a preliminary injunction does not constitute a tortious interference with a business relationship. To hold otherwise would have a chilling effect on valid lawsuits seeking to enforce contractual provisions such as a noncompete covenant. Moreover, [he] has failed to articulate any damages resulting from [its] alleged tortious interference with a business relationship. Here, [he] was out of work for several months as a result of the magistrate's decision granting [the employer] a preliminary injunction. Thus, [his] claimed loss of income was not caused by [its] filing of the lawsuit and seeking of a preliminary injunction, but by the magistrate granting the preliminary injunction.

The Court rejected the abuse of process claim on similar grounds:

We find there is no genuine issue of material fact regarding [his] abuse of-process counterclaim because [he] failed to present evidence establishing [the employer’s] ulterior motive. That is, there is no summary judgment evidence that [it] had an ulterior motive in seeking injunctive relief. Here, [it] filed a lawsuit against [him] and sought injunctive relief specifically to prevent [him] from competing directly with it. These are not "ulterior purposes" that [it] aims to accomplish but are clearly the stated and primary goals of these proceedings. Furthermore, as plainly shown by its December 12, 2022 decision dissolving the preliminary injunction, it is well within the trial court's jurisdiction to grant or deny a preliminary injunction. . . The trial court, therefore, did not err in granting summary judgment in favor of [the employer] on [his] abuse-of-process counterclaim.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court Permits Employers to Sue Employees for Maliciously Prosecuting Discrimination Claims.

Today, a divided Supreme Court held that that it does not constitute retaliation per se for an employer to file a lawsuit for malicious prosecution and abuse of process (seeking reimbursement for attorney fees as well as damages) and to seek punitive damages against an employee who had previously engaged in statutorily protected conduct by suing the employer for illegal discrimination. Greer-Burger v. Temesi, Slip Opinion No. 2007-Ohio-6442. However, the employer’s lawsuit must have an objective and good faith basis and cannot be filed simply to harass the employee. Similar to earlier federal cases involving an employer’s right to sue a union (See FYI entry for October 17, 2007), the Court was faced with balancing the employer’s right to seek redress in court under the First Amendment with the employee’s statutory right to seek redress for employment discrimination. The United States Supreme Court has generally held that an employer’s constitutional right to petition the courts cannot be limited by the statutory right of an employer or union. See BE & K Constr. Co. v. Natl. Labor Relations Bd., 536 U.S. 516, 538 (2002). The Ohio Supreme Court ruled that an employer’s lawsuit and claim for punitive damages are objectively based if the employer can show that it would survive a summary judgment motion on its claims.

In this case, the employee had filed suit and lost at trial. After the employer filed suit seeking reimbursement for his attorney fees, etc., and the employee filed for bankruptcy, the employee filed a Charge of Discrimination with the Ohio Civil Rights Commission. The OCRC found probable cause of retaliation and ordered the employer to dismiss the lawsuit and to reimburse the employee for the legal fees which she incurred in defending against the lawsuit (which had already been discharged in bankruptcy). The OCRC’s order was affirmed on appeal, where the appellate court found that employees have an absolute privilege to file suit against their employers for discrimination.

The Ohio Supreme Court reversed. However, its ruling reflects that the OCRC will still have the authority to review an employer’s lawsuit and determine for itself whether the case is likely to survive summary judgment.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-Ohio-6442.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.