Ohio Supreme Court Rejects Immunity From Allegedly False Light Statements About Plaintiff's Termination

In late June, a divided Ohio Supreme Court affirmed the rejection of Cuyahoga County’s political subdivision immunity defense on a false light claim brought by a former employee.  The Court found that former employees fit within the immunity statute’s exception when the claims arose out of the employment relationship and plaintiffs were not required to still be employed when filing the claim.  Further, the Court found that the public statements made about her termination were sufficiently related to her employment to be covered by the statutory exception to subdivision’s tort immunity.  Piazza v. Cuyahoga Cty., No. 2019-Ohio-2499.  “There is no temporal limitation in R.C. 2744.09(B) that requires an ongoing employment relationship, either at the time a plaintiff’s claim against a political-subdivision employer accrued or at the time the plaintiff filed the claim against her political-subdivision employer.  There must, however, be a causal connection between the claim and the plaintiff’s employment relationship, whether ongoing or terminated, with the political-subdivision employer.”

According to the Court’s opinion, the media had reported on alleged mismanagement and corruption in the department where the plaintiff had once worked. She was transferred two months later and then, along with two other former co-workers, was terminated seven months after that.   The County announced that their termination was related to a reorganization of her prior department.  The County later explained that it could not justify keeping the terminated employees in their new jobs in order to protect their job security and claimed that the former administration had reassigned rather than fired them.   The plaintiff filed suit against the County on the grounds that the reckless statements created the false inference that she was involved in the alleged corruption.  The County moved for summary judgment on the grounds of, among other things, that it was immune from her claims, which arose after her employment had been terminated.

The Court did not address the merits of the plaintiff’s substantive claims.  False light claims are actionable, even if the statements are not defamatory, when:

[O]ne who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

The County’s motion for summary judgment on immunity grounds was denied and affirmed by the Supreme Court on the grounds that the false light claims arose in connection with the plaintiff’s employment and, thus, fit within a statutory exception to the County’s subdivision immunity.

As explained by the Court, the Political Subdivision Tort Liability Act at R.C. 2744

initially sets out a broad, general rule that a political subdivision is not liable in damages in civil actions for injury, death or loss to person or property caused by an act or omission in connection with a governmental or proprietary function.

But it also contains a number of statutory exceptions, including one for claims arising out of employment at R.C. 2744.09(B), which provides that the Act

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.

The Court agreed to address the following questions: 

whether R.C. 2744.09(B) requires an ongoing employment relationship between the plaintiff and the political-subdivision employer, either at the time the plaintiff’s claim accrued or at the time the plaintiff filed her complaint—and a factual question—whether Piazza’s false-light claim is relative to a matter that arises out of her employment relationship with the county.  

The County argued that “because the alleged tortious conduct—the statement by FitzGerald—occurred after the county terminated Piazza’s employment, her claim does not arise out of her employment relationship with the county.”  The Court rejected the County’s argument because the statute does not limit the exception to claims that arose during the course of the employee’s employment and thus, could apply to “any claim” of a former employee that “arises out of the employment relationship.” 

A claim “ ‘arises out of the employment relationship’ ” between an employee and a political-subdivision employer “ ‘if there is a causal connection or a causal relationship between the claims raised by the employee and the employment relationship.’ . . . The test under R.C. 2744.09(B) is one of causal connection, not of timing. 

. . . . because the phrase “arises out of” refers to the existence of a causal connection, the phrase, read in the context of the entire statute, requires only that there have been a causal connection between the claim and the employment relationship, whether or not the employment relationship was continuing or had terminated.  We conclude that R.C. 2744.09(B) does not require that the alleged tortious conduct underlying a claim against a political subdivision have occurred during the plaintiff’s employment by the political subdivision.

The Court found more plausible the County’s argument that the lawsuit must be filed by a current employee, but ultimately found the statute to be ambiguous on that point.  No court had ever construed the statute to require the employee to still be employed before filing suit.  Moreover, again, the General Assembly’s failed to explicitly require the lawsuit to be filed while the employees was still employed.  The County’s argument would lead to inequitable results when the General Assembly had commanded that the Act be construed to lead to “just and reasonable” results.

Reading the word “employee” in R.C. 2744.09(B) as requiring an ongoing employment relationship at the time a plaintiff files an employment-related claim against her political-subdivision employer would give rise to an unreasonable result.  As the Eleventh District has astutely noted, such a reading “would encourage employers to terminate employees to avoid potential liability when an incident has occurred.”  Fleming at ¶ 31.  It is unreasonable to presume that the General Assembly intended to incentivize an employer to terminate an employee who may have an employment-related claim to preserve its entitlement to political subdivision immunity.

Accordingly, the Court held “that R.C. 2744.09(B) does not require that a plaintiff have been employed by the political subdivision employer at the time she filed her lawsuit.” 

The plaintiff’s claims related to statements about the termination of her employment and connected her to a scandal relating to her former employment.  “Termination of employment is a matter that arises out of the employment relationship.”  Indeed, the only relationship between her and the speaker was an employment relationship.

The statement attributed to FitzGerald was directly related to Piazza’s performance, her employment with the county, and the county’s termination of her employment.  Neither Piazza’s termination nor FitzGerald’s statement explaining why she was terminated could have occurred absent an employment relationship between Piazza and the county.   . . .  Piazza’s claim is relative to a matter that arises out of her employment relationship with the county.

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 Questions Genaro and Holds Individual Supervisors Are Entitled to Immunity From Most Discrimination Claims

Last week, the Ohio Supreme Court issued a second decision on Thursday addressing an employer’s respondeat superior liability.  In this second case, the Court concluded that the same statutory language from Ohio Revised Code § 4112.01(A) upon which it relied to impose individual supervisor liability in its 1999 decision in Genaro v. Cent. Transport, Inc., 84 Ohio St.3d 293, 1999-Ohio-353 was not sufficient to override political subdivision immunity for supervisors in Ohio Revised Code §2744.03(A)(6)(c). Hauser v. Dayton Police Dept., Slip Opinion No. 2014-Ohio-3636.  In Hauser, the plaintiff had alleged that she had suffered sexual discrimination from her employer and supervisor.   The supervisor moved for summary judgment on the grounds that he was immune under R.C.  §2744.03.  His motion was denied and this was affirmed on appeal with the courts concluding that: “an employee of a political subdivision is not entitled to immunity if a section of the Revised Code expressly imposes civil liability,” and, under Genaro,  “civil liability is expressly imposed upon managers or supervisors, such as Davis, under R.C. 4112.01(A)(2) for their individual violations of R.C. 4112.02(A).” The Supreme Court reversed on the grounds that the language in §4112.01(A)(2) existed only to impose vicarious liability on employers for their discriminatory actions and did not expressly override a government supervisor’s sovereign immunity.  “We underscore, however, that our conclusion is limited to the provisions dealing with “employer” discrimination [under] R.C. 4112.01(A)(2) and 4112.02(A). An individual political-subdivision employee still faces liability under other provisions of R.C. 4112.02 that expressly impose liability, including the aiding-and-abetting provision in R.C. 4112.02(J).”

The basis for the Court’s Hauser holding is that the statutory language in R.C. §4112.01(A)(2) was based on language in the National Labor Relations Act which the U.S. Supreme Court had previously held only established respondeat superior liability.  The Court also observed that the General Assembly knew how to establish individual liability because it had done so in a different provision of the Ohio Civil Rights Act at R.C. §4112.02(J) and (G):

If we were to conclude that the employer-discrimination provision in R.C. 4112.02(A) expressly imposes liability on employees, we would render the aiding-and-abetting provision in R.C. 4112.02(J) largely superfluous. That provision already holds individual employees liable for their participation in discriminatory practices. This context supports our determination that R.C. 4112.01(A)(1) and 4112.02(A) subject employers to vicarious liability and do not expressly impose liability on individual employees.

The Court also noted – as did the Genaro court – that the federal courts do not impose individual liability based on similar language in Title VII.  Moreover, the Ohio Civil Rights Act exempts smaller employers (with fewer than four employees) and that is inherently inconsistent with imposing individual liability. “Reading the statute to simultaneously exempt a small-business owner from liability yet impose liability on any individual working for a larger company obstructs this purpose. If a statute is susceptible to different meanings, we should favor the meaning that “furthers the legislative purpose” over the meaning that obstructs or hinders that purpose.”

In his dissent, Justice O’Neil observed that while he did not agree with the Court’s 1999 Genaro decision, he felt it controlled the outcome in this decision.  As reflected in the discussion of the Genaro decision below, I would have to agree.  This might have been as good of an opportunity as any to explicitly overrule Genaro, but that did not happen.

 In Genaro, the Supreme Court considered the respondeat liability argument it adopted today, but nonetheless ruled that individual liability existed based on public policy and the exact same language that the Court held today imposed only vicarious liability:

R.C. 4112.01(A)(2) defines “employer” as “any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of an employer.” (Emphasis added.)  . . . It is clear that the R.C. 4112.01(A)(2) definition of “employer,” by its very terms, encompasses individual supervisors and managers whose conduct violates the provisions of R.C.  Chapter 4112.

                . . .

As previously set forth herein, R.C. 4112.01(A)(2) defines “employer” as “any person employing four or more persons within the state, * * * and any person acting directly or indirectly in the interest of an employer.” (Emphasis added.) In contrast, under Title VII, “employer” is defined as “a person engaged in an industry affecting commerce who has fifteen or more employees * * * and any agent of such a person.” (Emphasis added.) Section 2000e(b), Title 42, U.S. Code. The differing numerosity requirements and uses of agency terminology indicate that Title VII’s definition of “employer” is far less reaching than the encompassing language of R.C. 4112.01(A)(2). Without doubt, the language employed by the General Assembly with regard to R.C. 4112.01(A)(2) is much broader in scope than that employed by the analogous Title VII provision.

                . . .

Based on the foregoing, we believe that the clear and unambiguous language of R.C. 4112.01(A)(1) and (A)(2), as well as the salutary antidiscrimination purposes of R.C. Chapter 4112, and this court’s pronouncements in cases involving workplace discrimination, all evidence that individual supervisors and managers are  accountable for their own discriminatory conduct occurring in the workplace environment. Accordingly, we answer the certified question in the affirmative and hold that for purposes of R.C. Chapter 4112, a supervisor/manager may be held jointly and/or severally liable with her/his employer for discriminatory conduct of the supervisor/manager in violation of R.C. Chapter 4112.

In Hauser, the Court attempted to distinguish Genaro, but simply questioned its validity instead of overruling it:

The certified question in Genaro involved private-sector supervisors and managers, and it asked only whether such persons may be jointly and severally liable with an employer for conduct “in violation of R.C. Chapter 4112.” Id. at 293, 300. We did not address whether the employer-discrimination provision in R.C. 4112.02(A) “expressly imposed” civil liability on a political subdivision employee for purposes of the immunity exception in R.C. 2744.03(A)(6)(c). To be sure, our reasoning in this case calls the Genaro majority’s reasoning into question, particularly its basis for distinguishing the prevailing interpretation of Title VII. See Genaro at 299 (declaring R.C. 4112.01(A)(2)’s definition of employer to be “broader” than Title VII’s definition). But because Genaro did not squarely address the immunity question at issue here, it is not binding authority, and we need not apply Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, to decide whether we should overrule it.  (emphasis added).

In that the public-private distinction seems irrelevant to whether the statutory language in question exists to impose respondeat superior liability as the Court now holds or individual liability as the Genaro court held in 1999, it seems likely that the Court would overrule Genaro if a better opportunity presented itself.   The question now is whether trial and appellate courts will take that opportunity to put the question before the Court in light of the Court’s apparent invitation (above) to do so.

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.