Evans v. Shawnee Twp. Bd. of Trustees

E
[Cite as Evans v. Shawnee Twp. Bd. of Trustees, 2021-Ohio-1003.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




MARK EVANS,

        PLAINTIFF-APPELLANT,                                       CASE NO. 1-20-25

        v.

SHAWNEE TOWNSHIP BOARD
OF TRUSTEES, ET AL.,                                               OPINION

        DEFENDANT-APPELLEE.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV 2019 0269

                                     Judgment Affirmed

                           Date of Decision: March 29, 2021




APPEARANCES:

        Alex J. Hale for Appellant

        William J. O’Malley for Appellee
Case No. 1-20-25


ZIMMERMAN, J.

          {¶1} Plaintiff-appellant, Mark Evans (“Evans”), appeals the July 18, 2020

judgment of the Allen County Court of Common Pleas granting summary judgment

in favor of defendants-appellees, the Shawnee Township Board of Trustees

(“Shawnee Township”), Chris Seddelmeyer, Trustee (“Seddelmeyer”), David

Belton, Trustee (“Belton”), and Clark Spieles, Trustee (“Spieles”) (collectively,

“defendants”), and dismissing Evans’s complaint. For the reasons that follow, we

affirm.

          {¶2} On July 8, 2019, Evans filed a breach-of-contract and a wrongful-

discharge-in-violation-of-public-policy complaint seeking damages from the

defendants following the termination of his employment as a firefighter and

paramedic with Shawnee Township. (Doc. No. 1). On August 7, 2019, the

defendants filed their answer.     (Doc. No. 7).    After being granted leave, the

defendants filed an amended answer on November 12, 2019. (Doc. Nos. 11, 12,

13).

          {¶3} On May 1, 2020, the defendants filed a motion for summary judgment.

(Doc. No. 20). Evans filed a memorandum in opposition to the defendants’ motion

for summary judgment on May 21, 2020. (Doc. No. 24). The defendants filed their

response to Evans’s memorandum in opposition to their motion for summary

judgment on June 5, 2020. (Doc. No. 27). On June 18, 2020, the trial court granted


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summary judgment in favor of the defendants and dismissed Evans’s complaint.

(Doc. No. 28).

       {¶4} On June 29, 2020, Evans filed a notice of appeal. (Doc. No. 30). He

raises three assignments of error for our review.

                             Assignment of Error No. I

       The Trial Court erred when it granted Summary Judgment to
       Defendants on Plaintiff’s claim or [sic] breach of contract.

                            Assignment of Error No. II

       The Trial Court erred when it granted Summary Judgment to
       Defendants on Plaintiff’s claim for employment termination in
       violation of public policy.

                            Assignment of Error No. III

       The Trial Court erred when it determined that the individual
       Trustees had immunity under ORC §2744.03(A)(6).

       {¶5} In his assignments of error, Evans argues that the trial court erred by

granting summary judgment in favor of the defendants. In particular, Evans argues

in his first assignment of error that there is a genuine issue of material fact that the

defendants breached his implied contract for employment by terminating his

employment as a firefighter and paramedic with Shawnee Township without

providing him three years to pass the National Registry of Emergency Medical

Technicians exam. Likewise, in his second assignment of error, Evans argues that

there is a genuine issue of material fact that his employment was terminated in


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Case No. 1-20-25


contravention of public policy. Finally, in his third assignment of error, Evans

argues that the trial court erred by concluding that Seddelmeyer, Belton, and Spieles

are entitled to statutory immunity under R.C. 2744.13(A)(6).

                                Standard of Review

       {¶6} We review a decision to grant summary judgment de novo. Doe v.

Shaffer, 

90 Ohio St. 3d 388

, 390 (2000). “De novo review is independent and

without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist.

Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S.

Bancorp, 

195 Ohio App. 3d 477

, 2011-Ohio-3822, ¶ 10 (10th Dist.). Summary

judgment is proper where there is no genuine issue of material fact, the moving party

is entitled to judgment as a matter of law, and reasonable minds can reach but one

conclusion when viewing the evidence in favor of the non-moving party, and the

conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels

v. Dayton City School Dist. Bd. of Edn., 

69 Ohio St. 3d 217

, 219 (1994).

       {¶7} “The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of material

fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing

Dresher v. Burt, 

75 Ohio St. 3d 280

, 292 (1996). “In doing so, the moving party is

not required to produce any affirmative evidence, but must identify those portions

of the record which affirmatively support his argument.”

Id., citing Dresher at

292.


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“The nonmoving party must then rebut with specific facts showing the existence of

a genuine triable issue; he may not rest on the mere allegations or denials of his

pleadings.”

Id., citing Dresher at

292 and Civ.R. 56(E).

                                     Analysis

      {¶8} On appeal, Evans contends that the trial court erred by granting

summary judgment in favor of the defendants as to his breach-of-contract and

wrongful-discharge claims.    We will begin by addressing Evans’s breach-of-

contract claim. Evans argues that there is a genuine issue of material fact that he

had a property interest in his employment as a firefighter and paramedic with

Shawnee Township based on “a job posting,” “job description,” a verbal assertion

by the fire chief, and “a union contract.” (Appellant’s Brief at 12-13). Taken

together, Evans asserts that these created an “implied-in-fact contract” governing

his employment, which provided specific employment promises that were not

followed by Shawnee Township. As a result, Evans contends that he had a property

interest in his employment and that he could not be terminated for failing the

National Registry of Emergency Medical Technicians exam within the first three

years of employment. We disagree.

      {¶9} “‘A public officer or public general employee holds his position neither

by grant nor contract, nor has any such officer or employee a vested interest or

private right of property in his office or employment.’” Mayer v. Ohio Dept. of


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Rehab. & Corr., 10th Dist. Franklin No. 11AP-380, 2012-Ohio-948, ¶ 18, quoting

State ex rel. Gordon v. Barthalow, 

150 Ohio St. 499

(1948), paragraph one of the

syllabus. See also Nealon v. Cleveland, 

140 Ohio App. 3d 101

, 106-107 (8th

Dist.2000) (“It is evident that a city employee, such as an assistant director of law,

holds his position as a matter of law, not by contract.”). Importantly, “[p]ublic

employees in Ohio differ from private employees in that they cannot have any

contractual relationship with their employer; the relationship between a

governmental employer an[d] employee is governed exclusively by statute or

legislative enactment.” Cobb v. Oakwood, 

789 F. Supp. 237

, 240 (N.D.Ohio 1991).

“It has been called a ‘universal rule’ that a public employee does not hold his office

ex contractu (that is, pursuant to contract in the sense of an agreement or bargain

between him and the public), but ex lege (as a matter of law, or pursuant to statute).”

Mayer at ¶ 18, citing Fuldauer v. Cleveland, 

32 Ohio St. 2d 114

, 122 (1972), Gordon

at 508, and Jackson v. Kurtz, 

65 Ohio App. 2d 152

, 154 (1st Dist.1979).

       {¶10} Indeed, “townships are creatures of statute and have no inherent

power.” Am. Sand & Gravel, Inc. v. Fuller, 5th Dist. Stark No. CA-6952, 

1987 WL

8237

, *1 (Mar. 16, 1987).       As relevant here, “R.C. 505.38 provides for the

appointment and removal of fire chiefs and firefighters in townships and fire

districts with a fire department.” Fulmer v. W. Licking Joint Fire Dist., 5th Dist.

Licking No. 13-CA-36, 2014-Ohio-82, ¶ 12. Specifically, R.C. 505.38 permits


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Case No. 1-20-25


“township boards of trustees the power to employ ‘such fire firefighters as it

considers best.’” McKendry v. Union Twp., Butler Cty., Ohio, 

633 F. Supp. 188

, 190

(S.D.Ohio 1986), quoting R.C. 505.38(A). Under the statute, “‘[s]uch appointees

shall continue in office until removed therefrom” as provided by sections 733.35 to

733.39 of the Revised Code.’” (Emphasis added.)

Id., quoting R.C. 505.38(A).

Although R.C. 505.38 “makes no mention of probationary employees,” the statute

has been determined to be “broad enough to accommodate the imposition of

probationary status as a condition of appointment to full-time employment” since

“[s]uccessful completion of a probationary period is almost a universal condition of

government employment and promotion.”

Id. at 190.

  “The purpose of this

probationary period is to evaluate a career employee’s merit and fitness in areas that

a competitive examination cannot test.”

Id., citing Walton v.

Montgomery Cty.

Welfare Dept., 

69 Ohio St. 2d 58

, 59 (1982).

       {¶11} Notwithstanding that fire chiefs and firefighters in townships and fire

districts with a fire department appointed under R.C. 505.38 are not subject to

Ohio’s civil service statute, an examination of the law applicable to Ohio’s civil

service is instructive here. Importantly, “[e]ven though permanent civil service

employees are granted substantial rights by the Revised Code, R.C. 124.27 makes

clear that probationary employees do not have an entitlement to continued

employment, and thus they are not afforded the due process rights given to


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Case No. 1-20-25


permanent employees.” (Emphasis added.) Fields v. Ariss, 12th Dist. Warren No.

CA2000-04-035, 

2000 WL 1221895

, *6 (Aug. 28, 2000), citing State ex rel.

Canfield v. Frost, 

53 Ohio St. 3d 13

, 13-15 (1990), Taylor v. Middletown, 58 Ohio

App.3d 88, 91 (12th Dist.1989), and Clark v. Ohio Dept. of Transp., 

89 Ohio App. 3d

96

, 99 (12th Dist.1993). Specifically, “[u]nder Ohio law, probationary employees

have no entitlement to any particular discharge procedure, nor do they have a

protected property interest in their employment.”      Dalton-Webb v. Village of

Wakeman, N.D.Ohio No. 3:19 CV 630, 

2020 WL 4926233

, *5 (Aug. 21, 2020),

citing Walton at 65 and Curby v. Archon, 

216 F.3d 549

, 553-554 (6th Cir.2000).

See also McKendry at 190 (“Probationary employees commonly have no property

right to be accorded due process protection.”), citing Orr v. Trinter, 

444 F.2d 128

,

134-135 (6th Cir.1971) and Walton at 65.

       {¶12} Furthermore, R.C. Chapter 4117 governs public employees’ collective

bargaining agreements. “R.C. 4117.10(A) provides that a collective bargaining

agreement between a public employer and the bargaining unit ‘governs the wages,

hours, and terms and conditions of public employment covered by the agreement.’”

Oglesby v. City of Columbus, 10th Dist. Franklin No. 00AP-544, 

2001 WL 102257

,

*4 (Feb. 8, 2001), quoting R.C. 4117.10(A). “Where a collective bargaining

agreement contains a grievance procedure, but also provides that probationary

employees may be terminated at any time with no right to appeal their termination,


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Case No. 1-20-25


the terms of the collective bargaining agreement govern the employment

relationship.” Ariss at *6, citing Fields v. Summit Cty. Executive Branch, 83 Ohio

App.3d 68, 72-73 (9th Dist.1992).

       {¶13} Here, Evans’s public employment as a firefighter and paramedic with

Shawnee Township was governed by R.C. 505.38 and the provisions of a collective

bargaining agreement. Specifically, the collective bargaining agreement in place

between Shawnee Township and the bargaining unit—The International

Association of Local Firefighters Local #2550—reflects, in its relevant part, that

“[e]ach new employee upon entering a bargaining unit position covered by th[e]

Agreement shall serve an initial probationary period of one (1) year.” (Doc. No. 13,

Ex. A). In other words, firefighters employed by Shawnee Township do not become

appointees under R.C. 505.38—that is, enjoy a protected-property interest in their

employment—until the completion of the one-year probationary period. Because

probationary employees do not enjoy a protected-property interest in their

employment until the completion of this probationary period, the collective

bargaining agreement further provides that “[e]mployees serving their initial

probationary period may be terminated anytime during the probationary period and

shall have no appeal rights regarding such removal.” (Id.).

       {¶14} There is no dispute that Evans did not complete his one-year

probationary period, and, as such, that Evans did not enjoy a protected-property


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Case No. 1-20-25


interest in his employment as a firefighter and paramedic with Shawnee Township.

See 

McKendry, 633 F. Supp. at 190

; Dalton-Webb, 

2020 WL 4926233

, at *6. See

also Bernhard v. Perrysburg Twp., 

185 Ohio App. 3d 470

, 2009-Ohio-6345, ¶ 24-

26 (6th Dist.). Because Evans did not enjoy a protected property interest in his

employment, as a matter of law, he cannot challenge his discharge. See Dalton-

Webb at *6. See also McKendry at 190 (Without a valid claim for the deprivation

for the constitutional right plaintiff cannot succeed [on his claim] as a matter of

law.”).

          {¶15} Nevertheless, Evans contends that statements in a job posting, in a job

description, made by the fire chief, and in the collective bargaining agreement

created a property interest in his employment. That is, Evans contends that the job

posting, job description, statements by the fire chief, and the collective bargaining

agreement created an implied-in-fact contract which modified his at-will

employment. We disagree.

          {¶16} “An ‘exception to the employment at-will doctrine is an express or

implied contract altering the terms for discharge.’” Squire v. Carlisle Twp., 9th

Dist. Lorain No. 18CA011435, 2019-Ohio-3984, ¶ 22, quoting Shetterly v. WHR

Health Sys., 9th Dist. Medina No. 08CA0026-M, 2009-Ohio-673, ¶ 12. “[E]vidence

of the character of the employment, custom, the course of dealing between the

parties, company policy, or other circumstances may transform an employment at-


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Case No. 1-20-25


will agreement into an implied contract for a definite term.” Ventre v. Bd. of

Trustees of Green Twp., 1st Dist. Hamilton No. C-970666, 

1998 WL 654096

, *9

(Sept. 25, 1998), citing Mers v. Dispatch Printing Co., 

19 Ohio St. 3d 100

(1985),

paragraph two of the syllabus. See also Fouty v. Ohio Dept. of Youth Servs., 

167

Ohio App. 3d 508

, 2006-Ohio-2957, ¶ 56 (10th Dist.) (“An implied-in-fact contract

arises from the conduct of the parties or circumstances surrounding the transaction

that make it clear that the parties have entered into a contractual relationship despite

the absence of any formal agreement.”).

       {¶17} “To prove the existence of an implied contract, a plaintiff ‘bears the

heavy burden of demonstrating (1) assurances on the part of the employer that

satisfactory work performance was connected to job security; (2) a subjective belief

on the part of the employee that he could expect continued employment; and (3)

indications that the employer shared the expectation of continued employment.’”

Squire at ¶ 22, quoting Craddock v. Flood Co., 9th Dist. Summit No. 23882, 2008-

Ohio-112, ¶ 7. See also Wissler v. Ohio Dept. of Job & Family Servs., 10th Dist.

Franklin No. 09AP-569, 2010-Ohio-3432, ¶ 31 (“In order to determine whether an

implied-in-fact contract exists, ‘“[t]he conduct and declarations of the party must be

examined to determine the existence of an intent to be bound.”’”), quoting Fouty at

¶ 57, quoting Reali, Giampetro & Scott v. Soc. Natl. Bank, 

133 Ohio App. 3d 844

,

850 (7th Dist.1999). “Thus, ‘specific representations leading to an expectation of


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continued employment are essential.’” Squire at ¶ 22, quoting Craddock at ¶ 8,

citing Wing v. Anchor Media, Ltd. of Texas, 

59 Ohio St. 3d 108

(1991), paragraph

two of the syllabus, and citing Moss v. Electroalloys Corp., 9th Dist. Lorain No.

02CA008111, 2003-Ohio-831, ¶ 12. “‘General expressions of optimism or good

will are not enough.’”

Id., quoting Craddock at

¶ 8.

       {¶18} However, “[u]nder Ohio law, a political subdivision cannot be bound

by a contract ‘unless the agreement is in writing and formally ratified through proper

channels.’” Patterson v. Licking Twp., 5th Dist. Licking No. 17-CA-3, 2017-Ohio-

5803, ¶ 18, quoting Schmitt v. Educational Serv. Ctr. Of Cuyahoga Cty., 8th Dist.

Cuyahoga No. 97605, 2012-Ohio-2208, ¶ 18. See also Musial Offices, Ltd. v. Cty.

of Cuyahoga, 8th Dist. Cuyahoga No. 108478, 2020-Ohio-5426, ¶ 33 (“The policy

precluding ex contractu claims against governmental entities is based on the

principle that a ‘municipality cannot enter into a contract * * * except by ordinance

or resolution of its counsel.’”), quoting Wellston v. Morgan, 

65 Ohio St. 219

, 227

(1901), and citing Cooney v. Independence, 8th Dist. Cuyahoga No. 66509, 

1994

WL 663453

, *2 (Nov. 23, 1994). “Consequently, a political subdivision cannot be

liable based on theories of implied or quasi contract.” Patterson at ¶ 18, citing

Schmitt at ¶ 18. See also Musial Offices at ¶ 33; Bd. of Rootstown Twp. Trustees v.

Rootstown Water Serv. Co., 11th Dist. Portage No. 2011-P-0084, 2012-Ohio-3888,

¶ 49 (noting that a municipality or county cannot be liable on an implied contract).


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Case No. 1-20-25


       {¶19} “R.C. 2744.01(F) defines a political subdivision as including a

township.” Patterson at ¶ 19. Accordingly, as a political subdivision, Shawnee

Township cannot be liable on a theory of an implied or quasi contract. See id.; Bd.

of Rootstown Twp. Trustees at ¶ 49. Evans’s contract claim is based only on an

implied-contract theory. (See, e.g., Appellant’s Brief at 12). That is, Evans did not

present any evidence reflecting that Shawnee Township entered an express contract

with him. Therefore, even when viewing the evidence in favor of Evans, the trial

court did not err by granting summary judgment in favor of the defendants as to

Evans’s breach-of-contract claim.

       {¶20} Having resolved Evans’s breach-of-contract claim, we will turn to his

wrongful-discharge claim. “In general, an employer can ‘terminate the employment

of any at-will employee for any cause, at any time whatsoever, even if the

termination was done in gross or reckless disregard of the employee’s rights.’”

McCulloch v. Ohio Dept. of Transp., 10th Dist. Franklin No. 14AP-357, 2014-Ohio-

4946, ¶ 18, quoiting Moore v. Impact Community Action, 10th Dist. Franklin No.

12AP-1030, 2013-Ohio-3215, ¶ 7, citing Collins v. Rizkana, 

73 Ohio St. 3d 65

, 67

(1995) and Phung v. Waste Mgt., Inc., 

23 Ohio St. 3d 100

, 102 (1986). “However,

the Supreme Court of Ohio recognized this right to terminate employment for any

cause no longer includes the discharge of an employee where the discharge is in

violation of a statute and therefore contravenes public policy.”

Id., citing Greeley

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Case No. 1-20-25


v. Miami Valley Maintenance Contrs., Inc., 

49 Ohio St. 3d 228

(1990), paragraphs

one and two of the syllabus. “If an employer does so, the discharged employee may

bring a cause of action in tort against the employer.”

Id., citing Greeley at

paragraph

three of the syllabus.

       {¶21} To assert a claim for wrongful discharge in violation of public policy,

a plaintiff must establish:

       (1) that a clear public policy existed and was manifested either in a
       state or federal constitution, statute or administrative regulation or in
       the common law (“the clarity element”), (2) that dismissing
       employees under circumstances like those involved in the plaintiff's
       dismissal would jeopardize the public policy (“the jeopardy
       element”), (3) that the plaintiff's dismissal was motivated by conduct
       related to the public policy (“the causation element”), and (4) that the
       employer lacked an overriding legitimate business justification for the
       dismissal (“the overriding-justification element”).

Miracle v. Ohio Dept. of Veterans Servs., 

157 Ohio St. 3d 413

, 2019-Ohio-3308, ¶

12. “The clarity and jeopardy elements involve legal questions that the court

determines.”

Id. “The causation and

overriding-justification elements involve

factual issues that the finder of fact decides.”

Id.

{¶22}

Under the clarity analysis, we must determine whether there exists in

Ohio a public policy against the employment action similar to the one alleged by

Evans. See Sutton v. Tomco Machining, Inc., 

129 Ohio St. 3d 153

, 2011-Ohio-2723,

¶ 11. “‘Clear public policy’ sufficient to justify an exception to the employment-at-

will doctrine may be expressed by the General Assembly in statutory enactments,


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Case No. 1-20-25


as well as in other sources, such as the Ohio and United States constitutions,

administrative rules and regulations, and the common law.”

Id.

{¶23}

Here, Evans invokes R.C. 2921.42(A)(1)—a criminal statute

prohibiting public officials from having an unlawful interest in a public contract—

as the basis for his wrongful-discharge claim. R.C. 2921.42 prohibits, in its relevant

part, public officials from using their “authority or influence * * * to secure

authorization of any public contract in which * * * a member of the public official’s

family * * * has an interest.” R.C. 2921.42(A)(1). Evans contends that R.C.

2921.42(A)(1) expresses a clear public policy against the termination of a township

employee’s employment in order for a member of a township trustee’s family to be

hired. Specifically, Evans argues that defendants violated this clear public policy

when “Seddelmeyer improperly interfered with his employment in order to have her

son hired.” (Appellant’s Brief at 16).

       {¶24} We cannot conclude that R.C. 2921.42(A)(1) expresses a clear public

policy that provides an exception to the employment-at-will doctrine. Importantly,

the General Assembly clearly and unambiguously did not intend for R.C.

2921.42(A)(1) to recognize a wrongful-discharge tort in employment law.

Consequently, R.C. 2921.42(A)(1) does not express a clear public policy which

would support a wrongful-discharge claim. See Miracle, 

157 Ohio St. 3d 413

, 2019-

Ohio-3308, at ¶ 24. See also Squire, 2019-Ohio-3984, at ¶ 18-20. Thus, because


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R.C. 2921.42(A)(1) does not express a clear public policy which would support a

wrongful-discharge claim, the trial court did not err by granting summary judgment

in favor of the defendants as to Evans’s wrongful-discharge claim.

       {¶25} Finally, Evans argues that the trial court erred by concluding that

Seddelmeyer, Belton, and Spieles are entitled to statutory immunity under R.C.

2744.03(A)(6). On appeal, Evans argues that “there is ample evidence that Trustee

Seddelmeyer acted outside the scope of her official responsibilities” and that R.C.

2744.09 “makes clear that the immunity under §2744.03 does not apply to the claims

in this case.” (Appellant’s Brief at 18).

       {¶26} “R.C. Chapter 2744 governs political subdivision tort liability and

immunity.” Brady v. Bucyrus Police Dept., 

194 Ohio App. 3d 574

, 2011-Ohio-2460,

¶ 44 (3d Dist.). “R.C. 2744.02(A)(1) states that political subdivisions are immune

from liability ‘[e]xcept as provided in [R.C. 2744.02](B).’” Piazza v. Cuyahoga

Cty., 

157 Ohio St. 3d 497

, 2019-Ohio-2499, ¶ 27, quoting R.C. 2744.02(A)(1). “It

does not refer to R.C. 2744.09, which states that R.C. Chapter 2744—including the

general grant of immunity in R.C. 2744.02(A)(1)—shall not be construed as

applying to the situations listed in R.C. 2744.09.”

Id.

{¶27}

Instead, R.C. 2744.09 provides, in relevant part, that “the Political

Subdivision Tort Liability Act, R.C. Chapter 2744, does not apply to ‘[c]ivil actions

by an employee * * * against his political subdivision relative to any matter that


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arises out of the employment relationship between the employee and the political

subdivision.’”

Id. at ¶ 1,

quoting R.C. 2744.09(B). See Taylor v. E. Cleveland,

N.D.Ohio No. 1:20 CV 02507, 

2021 WL 229973

, *3 (Jan. 22, 2021) (noting that

Chapter 2477 “grants statutory immunity to political subdivisions * * * for ‘injury,

death, or loss to person or property allegedly caused by any act or omission of the

political subdivision * * * in connection with a governmental or proprietary

function’” and that “civil actions brought by political subdivision employees which

relate to ‘any matter that arises out of the employment relationship’ are exempt from

this immunity”), quoting R.C. 2744.02(A)(1) and 2744.09(B). See also Piazza at ¶

27 (noting that, under that circumstance, courts “do not start with an assumption of

immunity, and the policy justification for construing an exception in favor of

immunity is absent”).

       {¶28} However, “the Supreme Court of Ohio has held that R.C. 2744.09(B)

only removes the immunity of a political subdivision but does not remove immunity

from the employees of political subdivisions.” Holmes v. Cuyahoga Community

College, 8th Dist. Cuyahoga No. 109548, 2021-Ohio-687, ¶ 36, citing Zumwalde v.

Madeira & Indian Hill Joint Fire, Dist., 

128 Ohio St. 3d 492

, 2011-Ohio-1603, ¶ 27

(“In a civil action brought by an employee of a political subdivision against another

employee of the political subdivision arising out of the employment relationship,

R.C. 2744.09(B) removes immunity only as to the political subdivision and does not


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affect the statutory immunity of the fellow employee.”), Spitulski v. Bd. of Edn. of

the Toledo City School Dist., 6th Dist. Lucas No. L-16-1225, 2017-Ohio-2692 ¶ 35

(6th Dist.), and Kravetz v. Streetsboro Bd. of Edn., 11th Dist. Portage No. 2011-P-

0025, 2012-Ohio-1455, ¶ 32. An “employee” of a political subdivision “includes

any elected or appointed official of a political subdivision.” R.C. 2744.01(B).

Accordingly, Evans’s argument that Seddelmeyer, Belton, and Spieles are without

statutory immunity under R.C. 2744.09 is without merit—that is, R.C. 2744.09 does

not remove immunity from Seddelmeyer, Belton, or Spieles.

       {¶29} Nevertheless, “potential liability can still be found against individual

employees if the evidence establishes a statutory exception under R.C.

2744.03(A)(6).” Holmes at ¶ 37, citing Stachura v. Toledo, 6th Dist. Lucas No. L-

12-1068, 2013-Ohio-2365, ¶ 13 and Long v. Hanging Rock, 4th Dist. Lawrence No.

09CA30, 2011-Ohio-5137, ¶ 16, fn. 2.            “R.C. 2744.03(A)(6) establishes the

framework of analysis for determining whether a political subdivision employee is

entitled to immunity.”

Id. at ¶ 38.

       R.C. 2744.03(A)(6) provides a general grant of immunity to an
       employee of a political subdivision unless one of the following
       exceptions applies: (1) the employee’s actions or omissions are
       manifestly outside the scope of employment or the employee’s official
       responsibilities, (2) the employee’s acts or omissions were malicious,
       in bad faith, or wanton or reckless, or (3) liability is expressly imposed
       upon the employee by a section of the Revised Code.

Plush v. Cincinnati, 1st Dist. Hamilton No. C-200030, 2020-Ohio-6713, ¶ 34.


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       {¶30} Based on our resolution of Evans’s first and second assignments of

error, we conclude that the defendants are entitled to judgment as a matter of law.

That is, reasonable minds can reach but one conclusion when viewing the evidence

in favor of the defendants, and that conclusion is adverse to Evans. Specifically,

there is no genuine issue of material fact that Seddelmeyer, Belton, or Spieles would

not be entitled to immunity or that Evans would be able to recover from

Seddelmeyer, Belton, or Spieles individually.

       {¶31} For these reasons, Evans’s assignments of error are overruled.

       {¶32} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

MILLER and SHAW, J.J., concur.

/jlr




                                        -19-

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