SUPREME COURT OF OHIO CLERK OF COURT APR 14 2009 Akron, Ohio 44308 (330) 252-8050 (330) 252-8051...
Transcript of SUPREME COURT OF OHIO CLERK OF COURT APR 14 2009 Akron, Ohio 44308 (330) 252-8050 (330) 252-8051...
IN THE SUPREME COURT OF OHIO
Pamela Denczak Henderhan 0 'v- 068 4
Appellant, . On Appeal from the Stark `^County Court of Appeals,
v. . Fifth Appellate District
Jackson Township Police Department, et al. : Court of AppealsCase No. 2008 CA 00055
Appellees.
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT PAMELA DENCZAK HENDERHAN
Katherine C. Hart Smith (0040374) (COUNSEL OF RECORD)Hart Smith Law Office1110 Key Building159 South Main StreetAkron, Ohio 44308(330) 252-8050(330) 252-8051 (facsimile)[email protected]
COUNSEL FOR APPELLANT, PAMELA DENCZAK HENDERHAN
Robert J. Tscholl (0028532) (COUNSEL OF RECORD)220 Market Avenue SouthSuite 1120Canton, Ohio 44702(330) 456 - 7702(330) 456 - 7610 (facsimile)
COUNSEL FOR APPELLEE, BRUCE WILSON
Gregory A. Beck (0018260) (COUNSEL OF RECORD)400 S. Main StreetNorth Canton, Ohio 44720(330) 499 - 6000(330) 499 - 6423 (facsimile)
M^^
APR 14 2009
CLERK OF COURTSUPREME COURT OF OHIO
COUNSEL FOR APPELLEES, JACKSON TOWNSHIP BOARD OF TRUSTEES ANDHARLEY NEFTZER
TABLE OF CONTENTS
Paee
WHY THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTIONAND IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST .................................1
STATEMENT OF THE CASE AND FACTS .............................................................3
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ........................................10
Proposition of Law No. I: A party may not assign as error an issue upon whichthe party failed to object prior to the jury retiring to consider its verdict, statingspecifically the matter objected to and the grounds for the objection ........................10
Proposition of Law No. II: An appellate court may not reverse a trial court'sdenial of a Judgment Notwithstanding the Verdict based on a defense that was neverraised at the trial court ..............................................................................11
Proposition of Law No. III: An appellate court may not reverse a trial court'sdenial of a Judgment Notwithstanding the Verdict based on an assignment of errorthat was not raised ...................................................................................12
Proposition of Law No. IV: Punitive damages are available against a politicalsubdivision rmder R.C. § § 4112.02/4112.99 ...................................................12
Proposition of Law No. V: Attorney's fees and costs are part of the make wholeremedy under R.C. § 4112.99 .....................................................................13
CONCLUSION ... ... ........... ... . .. ....... ... ......... ..... ..... ..... .. ... ....... .. ..... .. ..... ..... .. .....14
CERTIFICATE OF SERVICE .............................................................................15
APPENDIX Appx. Page
Opinion of the Stark Courity Coiu-t of Appeals(March 2, 2009) ............................................................................1
Judgment Entry of the Stark County Court of Appeals(March 2, 2009) ....... .. .. ....... ..... .... ... .. ... ....... ... .. .......... .. ..... ......... ...24
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WHY THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTIONAND IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST
Counsel for the defendants-appellees, Board of Jackson Township ("Board") and Harley
Neftzer ("Neftzer"), intentionally sent the issue of punitive damages against the Board to the
jury. Only after the jury returned its verdict of punitive damages against the Board did defense
counsel assert that it was improper for the jury to consider such an award based on the immunity
provided under R.C. § 2744. The issue of punitive damages was important to the jury. During
its deliberations, the jury inquired of the Court as to the potential effect of the punitive damage
award on attorney's fees. Permitting the Board to invite error and an appellate court to eradicate
a jury's verdict on that invited error creates a constitutional issue with respect to denying
Henderhan a fair trial.
Not only did the Board invite the error about which it complained on appeal, but the
appellate court's decision is based on a defense never raised by the Board at the trial court or as
an assignment of error on appeal. Where such a fundamental right as a fair trial by jury and the
sanctity of ajury's award of damages has been denied, this Court must review to ensure the
guarantees of the Ohio Constitution to each citizen and to protect the public's interest in the
integrity of the judicial system.
The Fifth District Court of Appeals held that, while R.C. § 2744 et seq. did not apply to
the instant case, punitive damages could not be awarded against the Board because, unlike R.C. §
3721.17(I), R.C. §§ 4112.02/4112.99 do not expressly authorize an award of punitive damages
against govermnental entities. This case presents an opportunity for this Court to address
whether punitive damages are available against political subdivisions in employment cases under
R. C. §§ 4112.02/4112.99.
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Finally, in an apparent contradiction to its holding that R.C. § 2744 et seq. did not apply
to the instant case because Henderhan's retaliation claim was employment related, the Fifth
District Court of Appeals held that Henderhan was not entitled to the award of attorney's fees
because R.C. § 2744 et seq. does not provide for an award of attorney's fees against a
governmental entity. This case provides an opportunity for this Court to address the issue of
whether R.C. § 2744 et seq. applies to employment claims and whether attorney's fees and costs
are part of the make whole remedy under R.C. § 4112.99.
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STATEMENT OF THE CASE AND FACTS
On April 20, 2006, Henderhan filed her Complaint against the Board of Jackson
Township ("Board"), Harley Neftzer ("Neftzer") and Bruce Wilson ("Wilson") alleging claims
for hostile work environment sexual harassment, sex discrimiiiation and retaliation under R.C. §§
4112.02(A)(I)/4112.99.
On February 14, 2007, the Board and Neftzer filed a motion for suminary judgment as to
Henderhan's claims for sex discrimination, sexual harassment and retaliation. The Board did not
argue that Henderhan was precluded from seeking punitive damages against the Board.
Henderhan filed her response on February 26, 2007. On March 1, 2007, the Honorable Judge
Lee Sinclair denied the Board's motion for summary judgment.
In pre-trial motions, briefs, jury instructions and objections to Henderhan's jury
instructions, the Board did not argue that Henderhan was precluded from an award of punitive
damages against the Board. The Board's jury instructions did not include an instruction for
punitive damages.
Trial commenced August 7, 2007, the Honorable Judge Taryn Heath presiding. The trial
included the following evidence supporting Henderhan's claim for retaliation. After earning her
bachelor's degree in criminal justice at Kent State University, Henderhan began working for
Jackson Township in 1983 as a Juvenile Diversion officer. Henderhan was hired by the Board as
a part-time police officer in 1984; in May 1986, the Board hired Henderhan as a full-time police
officer. Henderhan worked for the Stark County Metropolitan Narcotics Unit ("Metro") from
1991 to 1994, then worked road patrol until asked to transfer to the detective bureau in 1998. In
1998 and 1999, Henderhan worked as a detective specializing in narcotics investigations.
Henderhan received accolades for her performance as part of the FBI Task Force investigating
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narcotics from 1999 until 2003. Henderhan was lauded not only for her detective skills, but
because she worked "well with other area police departments and officers of the Jackson
Township Police Department", maintained a "professional attitude at all times" and was
"respected by her peers and supervisors alike."
Of the 45 police officers in the Jackson Township Police Department, Henderhan was
one of only three full-time female police officers, and the only female working in the detective
bureau. Henderhan has the most seniority of any officer or detective in the Department. Until
her removal from narcotics investigations by Neftzer and Wilson in January 2006, Henderhan
was the only female narcotics officer in Stark County.
In July 2002, the Board hired Neftzer as police chief. Neftzer had little experience
working with female officers or handling Equal Employment Opportunity ("EEO") issues.
Neftzer has a high school diploma, worked with the State Highway Patrol since 1981, but did not
work with a female trooper until 1993. The Board's and Neftzer's intentional disregard of EEO
issues was evident at trial. Although Neftzer's responsibilities included enforcing EEO policies,
the Board, William Burger ("Burger"), Steven Meeks ("Meeks") and John Pizzino ("Pizzino")
(collectively as "Trustees"), didn't bother to evaluate his performance on these duties. Although
enforcing EEO policies is ultimately the responsibility of the Board, the Trustees never discussed
the issue, nor did the Trustees obtain training with respect to EEO issues. The Department's
sexual harassnient policy didn't exist unti12004 even though the Trustees knew that the
Department was full of "male machoism" that would create a hostile environment for females.
The Trustees didn't even know if the Department's sexual harassment policy was posted or
provided to its police officers. Nor did the Board provide its police officers with training,
seminars or programs related to EEO issues.
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While the Trustees have the ultimate power to hire and fire, the Trustees follow the
chief's recommendation. Neftzer was responsible for Wilson's conduct. Wilson supervised
Henderhan under Neftzer's direction.
On August 1, 2005, Neftzer reassigned Wilson as Henderhan's supervisor in the detective
bureau. Neftzer told Chris Rudy ("Rudy"), a department lieutenant, that Wilson was a problem
.because the officers didn't respect him. Former Jackson Township Police Chief Phil Paar
("Paar") testified that Wilson did not meet the minimum psychological and intelligence testing
and education prerequisites for a patrol officer and he was hired as a lieutenant over his
objection.
On August 1, 2005, Wilson's first day as Henderhan's supervisor, after a drug bust,
Wilson wrapped his arms around her, kissed Henderhan's forehead and told her "I love you."
On October 1, 2005, Henderhan was kept out of a gambling raid until the last minute.
Henderhan and Wilson argued on the way back to the Department; Wilson got out of the car,
slanuned the door and broke it. On October 4, 2005, Henderhan complained to Neftzer and
Wilson that they and the Board were discriminating against her on the basis of sex. Henderhan
testified that she was upset and her voice was raised at the meeting, but she did not yell, although
Wilson did. Neftzer acknowledged that Henderhan had a right to be upset under the
circumstances. Neftzer sent Henderhan a letter dated October 4, 2005 acknowledging her
complaint of sex discrimination. Without checking iheir credentials, the Tivstees hired Martin
McCann ("McCann") and Patrick Foran ("Foran") to do the actual investigation based on
Neftzer's recommendation. Foran had a complaint of sexual harassment filed against him while
he worked for the FBI. Neither Foran nor McCann had recent training with respect to
investigating sexual harassment in nontraditional fields. The Trustees did not make any effort to
determine if the investigation was done properly.
Henderhan took medical leave until January 19, 2006. During the three and a half
months that Henderhan was out on medical leave, the detective bureau had no drug arrests or
drug buys. When Henderhan returned to work on January 19, 2006, her file cabinet, all of her
personal files, money for drug investigations, drug log book and Confidential Informant file
cards were removed from her office by Wilson. Despite her request, Wilson refused to give
Henderhan back her personal case files even though he never utilized the files in any way.
Wilson also took Henderhan's vehicle. From January 19, 2006, Wilson excluded Henderhan
from virtually. every significant investigation in the detective bureau, not just drug investigations.
Wilson and Danny Sturia ("Sturia") testified that Wilson gave all of Henderhan's files to Sturia
and that Henderhan was no longer permitted to work drug cases despite the fact that she had
more experience in narcotics than any other detective at the Department. While overtime was
supposed to be handed out pursuant to seniority in the detective bureau Wilson told Henderhan,
"you get your eight hours, no overtime", while male officers with less seniority than Henderhan
got overtime. There was an abundance of testimony on Henderhan's exclusion.from specific
investigations. As a result of Henderhan's exclusion from dozens of major investigations from
January 19, 2006 to August 1, 2006, Henderhan testified she lost significant overtime pay. A
compilation of ovcrtime provided by the Board established that in the first seven months of 2006
under Wilson's supervision, Henderhan had 50.5 overtime hours, Sturia had 219.5 hours.
Henderhan also learned from one of her confidential informants ("CI 601") that Wilson
made threatening statements that she was "crazy", and that "she's got one coming and I would
like to be the one to give it to her." Wilson refused to submit to a polygraph examination with
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respect to statements that CI 601 attributed to him. Because of the threats, Henderhan was
uncomfortable working with Wilson. On January 20, 2006, Henderhan filed a second complaint
of sex discrimination and retaliation. When Henderhan informed Neftzer that Wilson made
threats against her, and that she was uncomfortable working with him, Neftzer shrugged and told
her that he was waiting for the report regarding her first complaint and that he would probably
remove her from the detective bureau. At the same time that he was being investigated for
Henderhan's complaint of sex discrimination against him, Neftzer investigated Henderhan's
complaint of retaliation. Neftzer admitted that this was a "potential conflict." The Trustees
ignored the conflict and told Neftzer to go ahead with his investigation. The Trustees did not
take any action to protect Henderhan from retaliation despite knowledge of Wilson's threats.
When Neftzer met with CI 601 while investigating Henderhan's retaliation complaint, he
accused Henderhan of conspiring against Wilson.
In early February 2006, Neftzer released Henderhan's photograph to the Massillon
Independent, despite the Department's practice not to release the photographs of police officers
that work undercover. Lieutenant Glenn Goe ("Goe") informed Neftzer that he reftised to
release Henderhan's picture to the newspaper because she had worked quite a few drug
investigations and he thought it could jeopardize her or her investigations. Michael Beebe
("Beebe") testified that he worked with Henderhan when she was an undercover agent and that
providing her picture to the newspaper was "extremely dangerous." Meeks admitted that
Neftzer's actions in releasing Henderhan's picture to the newspaper could put her life in danger.
Henderhan testified that, as a result of Neftzer's actions, she can no longer do drug buys.
On February 2, 2006, while Henderhan's supervisor and the subject of her two
complaints of discrimination and retaliation, Wilson announced in the workplace, "I'm from the
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old school, I don't believe that women should be in police cruisers. I don't care what anybody
says, that's the way I feel".
On August 1, 2006, Wilson was finally removed as Henderhan's direct supervisor and
replaced by Goe. Goe testified that, "Well, I was aware of some things that had occurred that, I
don't know, didn't make a lot of sense to me or at least didn't seem to me to be a good use of
resources." Goe immediately returned Henderhan's files to her, gave her back her car, and told
her she was to start doing drug investigations. Although Wilson was removed as Henderhan's
direct supervisor on August 1, 2006, he continued to make Henderhan uncomfortable.
On August 20, 2007, the jury returned a verdict in Henderhan's favor on her retaliation
claim under R.C. §§ 4112.02(1)/4112.99. The jury awarded Henderhan $15,000 for lost wages
and benefits, $21,250 for pain and suffering, $100,000 for punitive damages and approved an
award of attorney's fees against the Board. The jury awarded $21,250 against Neftzer for pain
and suffering; and $42,500 against Wilson for pain and suffering.
At no time prior to the jury's verdict did the Board object to the trial court's jury
instructions or verdict forms which included a potential punitive damage award against the
Board. During the first jury instruction conference, appellees' counsel raised two objections,
neither with respect to punitive damages. At the second opportunity to object, the Board's
counsel was once again silent on the issue of punitive damages. Immediately after the jury
returned an award of punitive damages against the Board, its counsel requested Judge Heath send
the jury back with the instruction that it could not award punitive damages against the Board
based on R.C. § 2744. The trial court refused to do so.
On August 28, 2007, the Board moved for Judgment Notwithstanding the Verdict
("JNOV") arguing that R.C. § 2744.05(A) shielded the Board from the jury's award of punitive
damages. On September 14, 2007, Henderhan filed her response to the Board's JNOV; the
Board replied on September 26, 2007. On October 30, 2007, Judge Taryn Heath denied the
Board's JNOV based on its failure to raise the issue prior to the jury returning its verdict and
R.C. § 2744.09 rendering R.C. § 2744.05(A) inapplicable to Henderhan's retaliation claim.
On October 30, 2007, Henderhan filed her Motion for Attorney's Fees and Costs; a
hearing was held that date. The Board filed its response to Henderhan's Motion for Attorney's
Fees and Costs on Noveinber 7, 2007; Henderhan filed her reply on November 13, 2007.
Henderhan filed a supplemental petition for attorney's fees on January 29, 2008. On February
29, 2008, the trial court granted Henderhan's Motion for Attorney's Fees in the amount of
$176,577.50.
On January 14, 2008, the Board filed its Motion for Reduction of Punitive Damages to
$72,500 pursuant to R.C. § 2315.21(D)(2)(a). Henderhan filed her response on January 23,
2008; the Board filed its reply on February 8, 2008. On February 29, 2008, the trial court
granted the Board's Motion to Reduce Punitive Damages to $72,500.
On March 12, 2008, the Board, Neftzer and Wilson filed a joint Notice of Appeal. After
briefings and oral argument, on March 2, 2009, the Fifth District Court of Appeals issued its
decision reversing the trial court's decision denying JNOV as to punitive damages and attorney's
fees and costs against the Board.
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ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. I: A party may not assign as error an issue upon whichthe party failed to object prior to the jury retiring to consider its verdict, statingspecifically the matter objected to and the grounds for the objection.
If the Board believed that, as a matter of law, punitive damages against it were precluded
from going to the jury, the Board should have raised that issue on summary judgment, in its trial
brief, motions in limine, or jury instructions. Or the Board should have objected to the verdict
form which unambiguously included a potential award of punitive damages against the Board.
That the Board did not should be at its peril, not Henderhan's.
This Court previously rejected such a manipulation of the legal system in Goldfuss v.
Davidson (1997), 79 Ohio St.3d 116, 679 N.E.2d 1099. "It is doubtful that the public's
confidence in the jury system is underniined by requiring parties to live with the results of errors
that they invited, even if the errors go to `crucial matters."' Id at 121, 1103 (citations omitted).
The parties "bear responsibility for framing the issues and for putting both the trial court and
their opponents on notice of the issues they deem appropriate for jury resolution." Id at 122,
1104. See, also, Dardinger v. Anthem Blue Cross & Blue Shield (2002), 98 Ohio St.3d 77, 93,
781 N.E.2d 121, 137 ("It follows therefore that, for much graver reasons, a litigant cannot be
permitted, either intentionally or unintentionally, to induce or mislead a court into the
commission of an error and then procure a reversal of the judgment for an error for which he was
actively responsible.").
Henderhan had a constitutional right to have her jury weigh the issue of punitive damages
with an understanding of what damages it could award against which defendants. Based on the
jury's inquiry to the trial court regarding the impact of punitive damages on attorney's fees, the
jury took its responsibility seriously. Permitting a party to manipulate the legal system by
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withholding its objection to an issue until after the jury returns its verdict has serious
consequences to the integrity of the legal system.
The Fifth District Court of Appeals' decision invites a party to practice trial by deception
and then reap the rewards. The March 2, 2009 decision permitting such conduct creates an issue
that is of public or great general interest and of constitutional import.
For the foregoing reasons, Henderhan respectfully requests that this Honorable Court
assume jurisdiction over her First Proposition of Law.
Proposition of Law No. II: An appellate court may not reverse a trial court'sdenial of a Judgment Notwithstanding the Verdict based on a defense that wasnever raised at the trial court.
Although never raised prior to the jury's verdict, after the jury deliberated and returned
an award of punitive damages and attorney's fees against the Board, its counsel argued orally to
the trial court that R.C. § 2744 rendered the Board immune from an award of punitive damages.
Subsequent to trial, the Board filed a JNOV arguing that R.C. § 2744.05(A) precluded an award
of punitive damages against governmental entities. The March 2, 2009 decision by the Fifth
District Court of Appeals actually affirmed the trial court's denial of the Board's JNOV on this
issue. However, the appellate court did not end its analysis at the issue raised by the Board
before the trial court.
The Fifth District Court of Appeals reversed the trial court's denial of JNOV holding that
since R.C. §§ 4112.02 and 4112.99 do not expressly authorize an award of punitive darnages
against a political subdivision, Henderhan could not recover punitive damages against the Board.
As this issue was never raised by the Board at the trial court level, the Fifth District Court of
Appeal's judicial activism on behalf of the Board denies Henderhan her constitutional right to a
fair trial and creates an issue of public and great general interest.
11
For the foregoing reasons, Henderhan respectfully requests that this Honorable Court
assume jurisdiction over her Second Proposition of Law.
Proposition of Law No. III: An appellate court may not reverse a trial court'sdenial of a Judgment Notwithstanding the Verdict based on an assignment of error
that was not raised.
The Fifth District Court of Appeals reversed the trial court's denial of JNOV on the issue
of punitive damages on an assignment of error that was never made by the Board. The Board's
Second and Third Assignments of Error argued that the immunity granted by R.C. § 2744.05(A)
precluded Henderhan's award of punitive damages. The Board never assigned as error that the
award of punitive damages was precluded because R.C. §§ 4112.02 and 4112.99 did not
authorize an award of punitive damages against governmental entities.
As this assignment of error was never made by the Board at the appellate level, the Fifth
District's judicial activism on behalf of the Board denied Henderhan her constitutional right to a
fair trial and creates an issue of public and great general interest.
For the foregoing reasons, Henderhan respectfully requests that this Honorable Court
assume jurisdiction over her Third Proposition of Law.
Proposition of Law No. IV: Punitive damages are available against a politicalsubdivision under R.C. § § 4112.02/4112.99.
The Fifth District Court of Appeals rejected the Board's argument that the unambiguous
language of R.C. § 2744.09 renders R.C. § 2744.05(A) inapplicable to Henderhan's retaliation
claim. The appellate court then went on to address an assignment of error never raised by the
Board. The appellate court held that this Court's decision in Cramer v. Auglaize Acres (2007),
113 Ohio St.3d 266, 865 N.E.2d 9 "stands for the proposition a political subdivision's immunity
may be expressly abrogated by a specific statute, making the subdivision liable for compensatory
damages, but not punitive damages, even if allowed by the statute, are not recoverable against
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the political subdivision." (March 2, 2009 Opinion at ¶ 41). The appellate court then went on to
hold that since R.C. §§ 4112.02/4112.99 did not specifically authorize an award of punitive
damages against a political subdivision, it was reversing the jury's award in Henderhan's case.
R.C. § 4112.02(A) provides that it is unlawful for any employer to discriminate against
an employee because of that employee's race, color, religion, sex, military status, national origin,
disability, age or ancestry. R.C. § 4112.01 defines an `employer' as the "state or any political
subdivision of the state." R.C. § 4112.99 provides "a civil action for damages, injunctive relief,
or any other appropriate relie£" This Court previously held that punitive damages are available
under R.C. § 4112.99. Rice v. Certainteed Corp. (1999), 84 Ohio St.3d 417, 704 N.E.2d 1217
(syllabus).
There are hundreds of thousands of employees of governmental entities in the State of
Ohio. Those employees are protected by the mandates of R.C. §§ 4112.02/ 4112.99. Whether
punitive damages are available against political subdivisions of the state is an issue of public or
great general interest.
For the foregoing reasons, Henderhan respectfully requests that this Honorable Court
assume jurisdiction over her Fourth Proposition of Law.
Proposition of Law No. V: Attorney's fees and costs are part of the make wholeremedy under R.C. § 4112.99.
After holding that R.C. § 2744 et seq. did not apply to Henderhan's retaliation claim, the
Fifth District Court of Appeals then held that Henderhan could not recover attorney's fees in the
instant case because "There is no provision under R.C. Chapter 2744 that allows for recovery of
attorney's fees against a municipality." (March 2, 2009 Opinion ¶ 76).
R.C. § 4112.99 provides "a civil action for damages, injunctive relief, or any other
appropriate relief." Appropriate relief includes attorney's fees and costs as a"malce whole"
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remedy. This case provides an opportunity for this Court to decide whether attorney's fees and
costs are part of the "make whole" remedy available to successful plaintiffs in discrimination
cases under R.C. § 4112.99.
For the foregoing reasons, Henderhan respectfully requests that this Honorable Court
accept jurisdiction over her Fifth Proposition of Law.
CONCLUSION
This case presents a number of issues involving the constitutional right to a fair jury trial,
the integrity of the legal system and employee rights under the Ohio Revised Code all of which
are of public and great general interest. Henderhan respectfully requests that this Court accept
jurisdiction so that the issues presented will be reviewed on the merits.
Respectfully submitted,
KatFiErine C. Hart Smith (0040374)Hart Smith Law Office1110 Key Building159 South Main StreetAkron, Ohio 44308(330) 252 - 8050(330) 252 - 8051 (facsimile)[email protected]
Attorney for Plaintiff-Appellant
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CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Memorandum in Support of Jurisdiction has been
sent by regular U.S. mail to counsel for defendants-appellees, Jackson Township Police
Department, Board of Jackson Township and Harley Neftzer, Gregory A. Beck, Esquire, at
BAKER, DUBLIKAR, BECK, WILEY & MATHEWS, 400 S. Main St., North Canton, Ohio
44720 and to counsel for defendant-appellee, Bruce Wilson, Robert J. Tscholl, Esquire, 220
Market Ave. S., Suite 1120, Canton, OH 44702, on the 14th day of Apri12009.
Ka ine C. Hart Smith (0040374)
15
COURT OF APPEALSSTARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
PAMELA DENCZAK HENDERHAN
Plaintiff-Appellee
JUDGES:Hon. Sheila G. Farmer, P.J.Hon. W. Scott Gwin, J.Hon. William B. Hoffman, J.
-vs-
JACKSON TOWNSHIP POLICEDEPARTMENT, ET AL
Defendants-Appellants
CHARACTER OF PROCEEDING:
JUDGMENT:
DATE OF JUDGMENT ENTRY:
APPEARANCES:
For - Plaintiff-Appellee
KATHERINE C. HART SMITH1110 Key Building159 South Main StreetAkron, OH 44308
A TRUsv r JP'{ E_:NANCY RLIN3CLD CLERK
^ ^^.^ wu Da{wf!By .Uste .... ..,..
Case No. 2008-CA-00055
OPINION
Civil appeal from the Stark County Court ofCommon Pleas, Case No. 2006CV01606
Affirmed in part and Reversed in part
For - Defendants-Appellants JacksonTownship and Harley Neftzer: .
GREGORY A. BECKMELISSA DAY400 South Main StreetNorth Canton, OH 44720
For - Defendant-Appellant Bruce Wilson
ROBERT J. TSCHOLL220 Market Avenue SouthSuite 1120Canton, OH 44702
Stark County, Case No. 2008-CA-00055 2
Gwin, J.
{11} Defendants the Jackson Township Board of Trustees and Chief Harley
Neftzer, and separately, defendant Bruce Wilson, appeal a judgment of the Court of
Common Pleas of Stark County, Ohio, entered on a jury verdict in favor of plaintiff-
appellee Pamela Denczak Henderhan. Appellants The Board and Neftzer assign seven
errors to the trial court:
{12} "I.THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT
PRESENTED A VERDICT FORM TO THE JURY THAT WAS INCONSISTENT WITH
THE PROVIDED JURY INSTRUCTIONS.
{13} "II. THE TRIAL COURT ERRED IN NOT PERMITTING THE JURY TO
CORRECT ITS FINDING OF PUNITIVE DAMAGES AGAINST JACKSON TOWNSHIP.
{14} "III.THE TRIAL COURT ERRED IN DENYING APPELLANTS' MOTION
FOR JUDGMENT NOTWITHSTANDING THE VERDICT.
{15} "IV.THE JURY'S AWARD OF PUNITIVE DAMAGES WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{16} "V. THE JURY'S VERDICT FINDING RETALIATION AGAINST THE
JACKSON TOWNSHIP BOARD OF TRUSTEES AND CHIEF NEFTZER WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{17} "VI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING
TO INSTRUCT THE JURY ON THE PROMPT REMEDIAL ACTION AFFIRMATIVE
DEFENSE.
{18} "VII. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED
APPELLEE UNREASONABLE ATTORNEY FEES."
Stark County, Case No. 2008-CA-00055 3
{19} Appellant Bruce Wilson assigns two errors to the trial court:
{110} "I. THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT-
APPELLANT BRUCE WILSON'S MOTION FOR SUMMARY JUDGMENT ON
APPELLEE'S RETALIATION CLAIM.
{111} "II. THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT-
APPELLANT BRUCE WILSON'S MOTION FOR DIRECTED VERDICT ON
APPELLEE'S RETALIATION CLAIM."
{112} Appellee filed a complaint against all appellants alleging gender-based
discrimination, hostile work environment, and retaliation. The jury found in appellee's
favor only on the retaliation claim and awarded:
{113} From Chief Neftzer: damages only for pain and suffering of $21,250.00.
{114} From Lieutenant Wilson: damages only for pain and suffering of $42,500.
{¶15} From the Jackson Township Board of Trustees: lost pay and benefits in
the amount of $15,000.00; pain and suffering of $21,250.00; and punitive damages of
$100,000. The court later reduced the punitive damages to $72,500.
{116} The jury also found attorney fees should be granted only against the
Board. The court awarded $176,577.50 attorney fees and $26,857.49 in costs.
{1117} Appellee began work for the Jackson Police Department in 1983. She
worked in various capacities, including three years with the Stark County Metropolitan
Narcotics Unit, and transferred to the detective bureau in 1998. In 1998 and 1999,
appellee worked as a detective specializing in narcotics investigations. She was the
only female detective, and one of only three full-time female police officers.
Stark County, Case No. 2008-CA-00055 4
{118} In July 2002, the Board hired Neftzer as police chief. On August 1, 2005,
Neftzer assigned Lieutenant Wilson as appellee's supervisor in the detective bureau.
On the first day he supervised her, Wilson placed his arm around her and kissed the top
of her head, statirig he loved her. Appellee testified she did not feel Wilson meant
anything of a sexual nature, but she was offended and thought it was "Creepy."
Subsequently, appellee and Wilson had several conflicts regarding investigations,
culminating in a bifter altercation on October 1. On October 4, 2005, appellee filed a
complaint for sex discrimination against both Wilson and Neftzer. The same day, she
took medical leave until January 19, 2006. The Board referred the matter to an
independent investigation team.
{119} When appellee returned to work on January 19, 2006, she found
Lieutenant Wilson had removed from her office the filing cabinet, all of the files including
information on closed cases, drug investigation money, a drug log book and confidential
informant file cards. Lieutenant Wilson had also taken the vehicle assigned to appellee.
Appellee requested that Wilson return these items, but he did not return them. Wilson
issued appellee a vehicle which she alleges was not in good repair.
{120} On January 20, 2006, appellee filed a second complaint of sex
discrimination and retaliation against Wilson. Representatives of the Board directed
Neftzer to investigate the complaint over his objection he could have a conflict of
interest.
(121) In February, 2006 the Board's counsel reviewed the report from the
independent investigation, and concluded the first complaint was unfounded.
Stark County, Case No. 2008-CA-00055 5
{122} Appellee alleged after she returned from sick leave, and after she had filed
the retaliation claim, Wilson excluded her from every significant investigation in the
detective bureau, and she got less overtime than the other detectives. Although she had
the most experience in drug investigation, the cases involving drugs were assigned to
detectives with less training and experience.
(123) Appellee alleged Wilson had made threatening and derogatory statements
about her, and made derogatory comments to other women and females in general. In
February, 2006, Neftzer released appellee's photograph to the Massillon Independent
Newspaper in response to a public records request. Appellee alleged the department
ordinarily would not release such pictures, and in doing so destroyed her ability to work
undercover and put her life in danger. Appellee testified she was forced to seek medical
attention and take medication as a result of these actions.
{124} On August 1, 2006, Lieutenant Glenn Goe replaced Wilson as appellee's
direct supervisor. Goe returned the files to her, gave her a different vehicle, and told
her she would be doing drug investigations. Appellee alleged even after Wilson was no
longer her supervisor, he continued to make her uncomfortable.
{¶25} Appellee's allegations against the Board involved failure to properly train
its employees with respect to EEO issues, and not formulating a sexual harassment
policy until 2004. Appellee alleged the outside persons the Board hired to investigate
her first claim were not competent, and the Board assigned Neftzer to investigate the
second complaint even though the first complaint had been lodged against him and was
still pending.
Stark County, Case No. 2008-CA-00055 6
{126} The court's verdict forms provided the jury with the option of assessing
damages for lost pay and benefits, pain and suffering, punitive damages, and attorney
fees. The jury only awarded punitive damages and attorney fees against the Board.
{727} We will address the assignments of error of the Board and Chief Neftzer
first.
II & III
{¶28} Appellants' second and third assignments of error relate to the jury's
award of punitive damages against Jackson Township. The second assignment of error
addresses the court's ruling after the jury returned its verdict. While the jury was'still
impaneled, the Board objected and requested the court send the case back to the jury
with an instruction it could not award punitive damages against a political subdivision.
(¶29) The third assignment of error argues the court should have granted
judgment notwithstanding the verdict for the above reason. JNOV is proper if upon
viewing the evidence in a light most favorable to the non-moving party and presuming
any doubt to favor the nonmoving party, reasonable minds could come to but one
conclusion, that being in favor of the moving party. Civ.R. 50(B); Goodyear Tire &
Rubber Co. v. Aetna Casualty & Surety Co., 95 Ohio St.3d 512, 2002-Ohio-2842 . In
ruling on a motion for judgment notwithstanding the verdict, the court does not
determine factual issues, but only questions of law, even though it is necessary to
review and consider the evidence in deciding the motion. Goodyear at paragraph 4.
{130} R.C. Chapter 2744 governs the tort liability of political subdivisions, their
immunities and exceptions to immunity. R.C. 2744.09 states: "This chapter does not
apply to, and shall not be construed to apply to, the following:
Stark County, Case No. 2008-CA-00055 7
{¶31} "(A) Civil actions that seek to recover damages from a political subdivision
or any of its employees for contractual liability;
{¶32} "(B) Civil actions by an employee, or the collective bargaining
representative of an employee, against his political subdivision relative to any matter
that arises out of the employment relationship between the employee and the political
subdivision;
{133} "(C) Civil actions by an employee of a political subdivision against the
political subdivision relative to wages, hours, conditions, or other terms of his
employment; ***" (Emphasis added).
{134} R.C. 2744.05 states:
{135} "Notwithstanding any other provisions of the Revised Code or rules of a
court to the contrary, in an action against a political subdivision to recover damages for
injury, death, or loss to person or property caused by an act or omission in connection
with a governmental or proprietary function:
{136} "(A) Punitive or exemplary damages shall not be awarded."
{137} The Board urges us to apply R.C. 2744.05, and to find punitive damages
may not be assessed against it. Appellee asserts R.C. 2744.09 prohibits application of
R.C. 2744.05 to this action, and therefore the Board may be liable for punitive damages.
{138} In Gessner v. Union, 159 Ohio App.3d 43, 2004-Ohio-5770, 823 N.E.2d 1,
the Second District held that age-discrimination and wrongful-discharge claims arose
out of the employment relationship, despite the defendant's claim that age
discrimination is an intentional tort. In reaching its decision, the court noted, "[t]he case
law on this issue is sparse, but that is not surprising in view of such an obvious point."
Stark County, Case No. 2008-CA-00055 8
Id. at 131. Gessner further observed that no other Ohio cases precluded applying R.C.
2744.09(B) when civil rights violations occur in the employment context. "In fact, suit
appears to be routinely permitted against political subdivisions in such situations." Id. at
¶ 47. See, also, Nagel v. Homer, 162 Ohio App.3d 221, 227, 833 N.E.2d 300, 305,
2005-Ohio-3574 at ¶ 17-18. In addition, the Supreme Court of Ohio summarily stated
that immunity is not available to a political subdivision in an employee's claim for
unlawful discrimination. The court cited R.C. 2744.09(B) and (C). Whitehall ex rel. Wolfe
v. Ohio Civ. Rights Comm. (1995), 74 Ohio St.3d 120, 123, 656 N.E.2d 684.
Accordingly, R.C. Chapter 2744 does not apply to appellee's causes of action because
they are causally connected to her employment. Therefore, R.C. 2744.05 can not be
applied to prevent the imposition of punitive damages. However, that does not imply
that punitive damages can be awarded against a political subdivision for a violation of
R.C. 4112.99.
{139} In general, R.C. 4112.99 authorizes an award of punitive damages upon a
showing of actual malice. Rice v. CertainTeed Corp (1999), 84 Ohio St.3d 417, 422, 704
N.E.2d 1217. However, punitive or exemplary damages may not be awarded against a
political subdivision unless such damages are specifically authorized by statute. See
Spires v. City of Lancasterj1986), 28 Ohio St.3d 76, syllabus, 502 N.E.2d 614; Ranells
v. Cleveland(1975), 41 Ohio St.2d 1, 6-8, 321 N.E.2d 855; Franklin v. City of
Columbus(1998), 130 Ohio App.3d 53, 63, 719 N.E.2d 592. Since there is no language
in R.C. 4112.02 and 4112.99 expressly authorizing an award of punitive damages
against a political subdivision, appellee may not recover punitive damages against the
Stark County, Case No. 2008-CA-00055 9
Board. See, Femandez v. City of Pataskala (SD OH 2006), No. 2:05-CV-75, Slip Op. at
*3, 2006 WL 3257389.
{140} Additionally, in Cramer v. Auglaize Acres, 113 Ohio St. 3d 266, 2007-
Ohio-1946, 865 N.E.2d 9, the Ohio Supreme Court reviewed a case wherein a resident
of a county home was injured. Cramer brought suit against the County Board of
Commissioners, the county home, and several employees of the home, claiming
negligence, intentional infliction of emotional distress, and violations of Ohio's Patient's
Bill of Rights contained in R.C. 3721.10 et seq. The statute provides express liability for
violations in county operated nursing homes. The county home and the county
commissioners argued they were immune from liability. The Supreme Court found,
"R.C. 372.17(1) (2) (a) allows a resident to recover punitive damages for a violation, and
R.C. 2744.05(A) prohibits the award of punitive damages against a political subdivision.
A conflict over the recovery of punitive damages does not prevent the application of
R.C. 3721.17(I) (1) to the county appellees. Although punitive damages may not be
awarded against a political subdivision, we hold that R.C. 3721.17 expressly imposes
liability on county-operated nursing homes for violations of R.C. 3721.10 through
3721.17. Thus Cramer's cause of action against the county appellees under the
Patients' Bill of Rights falls under the exception to immunity found in R.C.
2744.02(B)(5)." Cramer at ¶ 31. See, also, Lewis v. Minerva (ND OH 1996), 934
F.Supp. 268. [Although municipalities may be directly liable for monetary, declaratory,
and injunctive relief under § 1983, such liability does not extend to liability for punitive
damages].
Stark County, Case No. 2008-CA-00055 10
{141} We find Cramer stands for the proposition a political subdivision's
immunity may be expressly abrogated by a specific statute, making the subdivision
liable for compensatory damages, but punitive damages, even if allowed by the statute,
are not recoverable against the political subdivision.
{¶42} Appellee argues Cramer is distinguishable from the case at bar because it
does not deal with an employment issue and does not discuss how R.C. 2744.09 affects
the analysis. Nevertheless, Cramer is instructive on the question of political subdivision
liability and immunity.
{1[43} Appellee argues the Board and Neftzer may have invited the error by not
objecting to the verdict form that allowed the jury to award punitive damages against the
Board. She argues if the jury had not been given the option of awarding punitive
damages from the Board, then the jury would have assessed punitive damages against
Neftzer and Wilson. We do not agree. The jury could have awarded punitive damages
from Neftzer and Wilson in addition to the Board under the existing jury instructions; the
jury chose not to do so.
{144} Appellee further argues the Board's failure to object to the verdict form
waived any error on appeal. We disagree.
{¶45} In the case at bar, the Board immediately notified the trial court of the error
before the jury was dismissed. Further, in relation to the Board's motion for judgment
notwithstanding the verdict, the Board and the appellee were given the opportunity to
brief this issue by the trial court. Accordingly, we may reach the merits of this error on
appeal. Newport v. Facts Concerts, Inc. (1981), 453 U.S. 247, 255-256, 101 S.Ct. 2748,
2753-2754.
Stark County, Case No. 2008-CA-00055 11
{146} In summary, since there is no language in R.C. 4112.02 and 4112.99
expressly authorizing an award of punitive damages against a political subdivision,
appellee may not recover punitive damages against the Board. Further, considerations
of history and policy do not support exposing a political subdivision to punitive damages
for the bad-faith actions of its officials. Newport v. Facts Concerts, Inc., supra; Spires v.
City of Lancaster, supra.
{¶47} The second and third assignments of error are sustained.
I,
{148} The first assignment of error challenges the court's determination the
verdict form submitted to the jury was inconsistent with the jury instructions. No one
objected to the verdict forms and the Board asks us to find plain error.
{149} The court instructed the jury, inter alia, that if it found appellee was entitled
to recover damages on her claims, then it must consider whether she is entitled to
recover punitive damages against the "individual defendants." Appellants argue the
phrase "individual defendants" refers to Neftzer and Wilson, but not the Board. Appellee
argues the meaning of "individual defendants" meant the jury was to determine each of
the three defendant's liability individually, i.e. separately. We agree the jury instruction
was somewhat ambiguous, and the verdict form led the jury to misunderstand its
instruction.
{150} Generally, we are disinclined to invoke plain error, as the doctrine of plain
error in civil matters is limited to exceptionally rare cases in which the error, not objected
to at the trial court, "rises to the level of challenging the legitimacy of the underlying
judicial process itself." See Goldfuss v. Davidson, 79 Ohio St.3d 116, 122, 1997-Ohio-
Stark County, Case No. 2008-CA-00055 12
401, 679 N.E.2d 1099. In light of oiar disposition of Appellants' second and third
assignments of error, while the inconsistency between the instruction and the verdict
form created error, it does not rise to the level of plain error.
{151} The first assignment of error is overruled.
IV.
{152} The Board and Chief Neftzer urge the jury's award of punitive damages
was against the manifest weight of the evidence. Given our holding, supra, we find this
assignment of error is moot.
V.
{153} In their fifth assignment of error, the Board and Chief Neftzer argue the
jury's verdict finding of retaliation was against the manifest weight of the evidence.
{154} A reviewing court will not disturb the trial court's decision as against the
manifest weight of the evidence if the decision is supported by some competent,
credible evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279.
The Supreme Court has repeatedly held the term "abuse of discretion" implies the
court's attitude is unreasonable, arbitrary, or unconscionable, Blakemore v. 8lakemore
(1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. We may not substitute our judgment for that
of the trier of fact. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614
N.E.2d 748.
{155} In order to establish a claim of retaliation, appellee had to prove: (1) she
engaged in a protected activity; (2) she suffered an adverse employment action; and (3)
there was a causal connection between the adverse employment action and the
protected activity. Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007 -Ohio-6442, 879
Stark County, Case No. 2008-CA-00055 13
N.E.2d 174, at paragraph 13, citing Canitia v. Yellow Freight Systems., Inc. (C.A. 6,
1990), 903 F.2d 1064, 1066.
(156) If a complainant establishes a prima facie case, the burden then shifts to
the employer to articulate some legitimate, nondiscriminatory reason for its actions.
McDonnell Douglas Corp, v. Green (1973), 411 U.S. 792, 802, 93 S.Ct. 1817, 36
L.Ed.2d 668. If the employer does so, the burden shifts back to the complainant to
demonstrate the proffered reason was not the true reason for the employment decision.
Texas Dept of Community Affairs v. Burdine (1981), 450 U.S. 248, 256, 101 S.Ct.
1089, 67 L.Ed.2d 207. Greer-Burger at paragraph 14.
{157} In Burlington Northern & Santa Fe Railway v. White (2006), 548 U.S. 53,
126 S.Ct. 2405, 165 L.Ed.2d 345, the Court explained the anti-retaliation provision of
Title VII of the Civil Rights Act of 1964 prohibits actions that would be materially adverse
to a reasonable employee, and requires a plaintiff to show the employer's action would
dissuade a reasonable worker from making or supporting the charge of discrimination.
The significance of any given act of the employer depends upon the surrounding
circumstances, and re-assignment of job duties is not automatically actionable.
However, "a reassignment of duties can constitute retaliatory discrimination where both
the former and present duties fall within the same job description. Almost every job
category involves some duties that are less desirable than others." Id.
(¶58) The Township and Chief Neftzer apparently concede appellee's filing of
the discrimination claims was a protected activity. They argue appellee did not suffer an
adverse employment action and there was no causal connection between any change
in her work conditions and the filing of the two complaints.
Stark County, Case No. 2008-CA-00055 14
{159} Appellee argues she presented evidence the Board and Neftzer permitted
Wilson to remove from her office the file cabinet, files, and drug investigation materials,
and allowed him to substitute her vehicle with an older one. These articles were
removed while appellee was on sick leave, but Wilson refused to return them when she
returned to her duties. Appellee argues she was excluded from virtually every significant
investigation, and was not given the opportunity to earn overtime pay. Appellee
presented evidence the Board and Chief Neftzer knew Wilson made threats and
derogatory statements, but did not intervene. Appellee presented evidence the Board's
representatives ordered Chief Neftzer to investigate appellee's second complaint
involving retaliation, over his objection that her first complaint against him was still
pending.
{160} In sum, appellee urges she presented evidence, which, if believed by the
jury, would show the appellants' actions were done with an intent to retaliate, and had
an adverse effect on her both emotionally, and economically.
{¶61} In Vojvodich v. Lopez (1995), 48 F.3d 879, the Fifth Circuit Court of
Appeals considered a discrimination claim brought by a sheriffs deputy who was
removed from his position as the head of a narcotics unit and transferred to a position
as the head of the Communications/Dispatch Division. The officer alleged he was
discriminated against because of his political affiliation, which was different than that of
the newly elected sheriff. He said his new position offered less job satisfaction, fewer
benefits, and that, in his view, the transfer was a career setback. The sheriff maintained
the transfer was made for nondiscriminatory reasons and argued the new position was
equal in prestige to the position the officer held before the transfer.
Stark County, Case No. 2008-CA-00055 15
{162} The Fifth Circuit found a transfer to a less interesting and less prestigious
position can be an adverse employment action even if the employee suffers no loss in
pay.
{163} Appellee asserts a jury could infer a causal connection between her filing
of her two discrimination claims and the adverse action because of the timing between
her filing of the claims and the acts she alleged were retaliatory. Clark County School
District v. Breeden (2001) 532 U.S. 268, 121 S.Ct. 1508. A plaintiff cannot prevail if it
appears from the evidence the employer would have made the same decision
regardless of the plaintiffs participation in some protected activity, Neal v. Hamilton
County ( 1993), 87 Ohio App.3d 670, 622 N.E.2d 1130,
{164} The Board and Neftzer do not specifically assign error to the jury's award
of lost wages, but only include it in their argument there was no retaliation.
{165} The Board and Neftzer's explanation for appellee's apparent denial of
overtime was a sufficient legitimate business excuse and transferred the burden of proof
back to appellee to show this explanation was not accurate, and the real motivation was
retaliation. They presented evidence that for the year 2006, overtime pay for three other
detectives ranged from 8%, 10%, and 20% of their total pay, while appellee's overtime
was 8.5% of her salary. No party offered evidence as to prior years. Appellee estimated
she was denied overtime of $5,000 or $6,000.
{166} On cross, appellee admitted in 2006, she worked 1,300 hours compared
to 1,700 or more by her colleagues. The Board and Neftzer cross-examined appellee
about taking 336 hours of sick leave and 332 hours of vacation, and argued appellee
could not earn overtime if she was not working her regular hours. However, appellee
Stark County, Case No. 2008-CA-00055 16
testified although she could not be called into work when on sick leave, she could, and
was, called in when she was on vacation. Appellee also testified overtime was paid if an
employee worked more than forty hours in a week, or more than eight hours on a given
day. Thus, the jury could reject the calculations offered by the Board and Neftzer.
(167) Nevertheless, it is not sufficient for the employer to demonstrate it had
authority to take the action complained of; an employer may abuse its power or misuse
its authority. The plaintiff must demonstrate the employer's motive was retaliatory by
showing employer's decision or the cumulative effect of several employment decisions
was intended to punish the employee for making the charge of discrimination, or to
dissuade the employee from making or supporting the charge.
{768} Appellee also presented evidence of improper and/or objectionable
behavior unrelated to any employment decisions. We find she presented sufficient
evidence of pretext to support the jury's conclusion the appellants engaged in retaliation
against her.
{169} We find that there was sufficient, competent and credible evidence, which,
if believed by the jury, supports its verdict. The verdict is not against the manifest weight
of the evidence.
{170} The fifth assignment of error is overruled.
VI.
{171} In their sixth assignment of error, the Board and Chief Neftzer argue the
court should have given the requested instruction on the defense of prompt remedial
action. This is an affirmative defense from a charge of vicarious liability for hostile work
environment, and requires the employer to prove by a preponderance of the evidence
Stark County, Case No. 2008-CA-00055 17
the employer exercised reasonable care to prevent and correct the improper behavior
and the employee unreasonably failed to take advantage of preventative or corrective
opportunities provided by the employer. Burlington Northern & Santa Fe Railway v.
White, (2006), 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345; Faragher v. City of Boca
Raton, ( 1998), 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662.
{172} The Board and Neftzer assert they promptly and reasonably responded
to appellee's complaints. The trial court refused to give an instruction on the affirmative
defense to the jury, and instructed the jury the Board would be vicariously liable for its
employees' actions. The Board argues in effect, the jury was instructed if it found
against either of the employees, the Board was liable as a matter of law.
{173} The Board and Neftzer presented evidence from which the jury could have
concluded appellee did not promptly report the first instances of discrimination, and their
response to the complaints were appropriate. We find the court erred in not instructing
the jury on the affirmative defense to the charge of hostile work environment, but the
error was not prejudicial because the jury found in appellants' favor on that claim.
{174} The sixth assignment of error is overruled.
Vil.
{¶75} In their seventh assignment of error, the Board argues the court erred in
assessing attorney fees because punitive damages were not allowed by law and the
award was excessive.
{¶76} An award of attorney fees may be predicated on an award of punitive
damages, or when authorized by statute. We have found the court could not award
punitive damages against the Board, and therefore attorney fees cannot be awarded on
Stark County, Case No. 2008-CA-00055 18
that basis. There is no provision under R.C. Chapter 2744 that allows for recovery of
attorney fees against a municipality. Krieger v. Cleveland lndians Baseball Co., 176
Ohio App.3d 410, 892 N.E.2d 461, 2008-Ohio-2183, appeal allowed, 120 Ohio St.3d
1415, 897 N.E.2d 651, 2008-Ohio-6166 (Ohio Dec 03, 2008), In the absence of such a
provision, attorney fees may not be awarded against a municipality. Krieger at
paragraph 72, citing Banks v. Oakwood (Oct. 11, 1990), Cuyahoga App. Nos. 57225
and 58020, 1990 WL 151662; Franklin v. Columbus (1998), 130 Ohio App.3d 53, 719
N.E.2d 592."
{1[77} We find the court erred in awarding attorney fees from the Board. The
seventh assignment of error is sustained.
{178} Next, we address appellant Bruce Wilson's assignments of error.
I&II
{179} In his first assignment of error, appellant Wilson urges the trial court erred
in overruling his motion for summary judgment on the retaliation claim. In his second
assignment of error, Wilson argues the court should have granted a directed verdict in
his favor on the retaliation claim. We will address both together because the standards
for summary judgment and directed verdict are similar.
{¶80} Civ. R. 56 states in pertinent part:
{¶81} "Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
Stark County, Case No. 2008-CA-00055 19
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party's favor. A summary
judgment, interlocutory in character, may be rendered on the issue of liability alone
although there is a genuine issue as to the amount of damages."
{182} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts, Houndshell v. American States Insurance Company (1981), 67 Ohio
St. 2d 427. The court may not resolve ambiguities in the evidence presented, Inland
Refuse Transfer Company v. Browning-Ferris Industries of Ohio, Inc. (1984), 15 Ohio
St. 3d 321. A fact is material if it affects the outcome of the case under the applicable
substantive law, Russell v. Interim Personnel, Inc. (1999), 135 Ohio App. 3d 301.
{183} When reviewing a trial court's decision to grant summary judgment, an
appellate court applies the same standard used by the trial court, Smiddy v. The
Wedding Parfy, Inc. (1987), 30 Ohio St. 3d 35. This means we review the matter de
novo, Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186.
{¶84} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis of the motion and identifying the portions of the
record which demonstrate the absence of a genuine issue of fact on a material element
of the non-moving party's claim, Drescher v. Burt (1996), 75 Ohio St. 3d 280. Once the
Stark County, Case No. 2008-CA-00055 20
moving party meets its initial burden, the burden shifts to the non-moving party to set
forth specific facts demonstrating a genuine issue of material fact does exist, Id. The
non-moving party may not rest upon the allegations and denials in the pleadings, but
instead must submit some evidentiary material showing a genuine dispute over material
facts, Henkle v. Henkle (1991), 75 Ohio App. 3d 732.
{185} Civ. R. 50 states in pertinent part:
{186} "When a motion for a directed verdict has been properly made, and the
trial court, after construing the evidence most strongly in favor of the party against
whom the motion is directed, finds that upon any determinative issue reasonable minds
could come to but one conclusion upon the evidence submitted and that conclusion is
adverse to such party, the court shall sustain the motion and direct a verdict for the
moving party as to that issue."
{187} A motion for directed verdict presents a question of law, not fact, even
though we review and consider the evidence. O'Day v. Webb (1972), 29 Ohio St.2d
215, 280 N.E.2d 896, syllabus 3 by the court. Thus, we review a motion for directed
verdict using the de novo standard of review. Cleveland Electric Nluminating Company
v. Public Utility Commission, 76 Ohio St.3d 521 at 523, 1996-Ohio-298, 668 N.E.2d 889,
citation deleted.
{¶88} Appellant Wilson asserts appellee did not set forth a prima facie case of
retaliation. Wilson asserts appellee proved neither an adverse employment action nor
damages. Wilson argues assuming arguendo, appellee did set forth a prima facie case,
the burden shifted to him to articulate a legitimate reason for the adverse action. Wilson
maintains he produced evidence the adverse employment actions were legitimate
Stark County, Case No. 2008-CA-00055 21
supervisory decisions. The burden then shifted to appellee to show the articulated
reason was pre-textual, and Wilson argues appellee did not do so. He adds that the
inappropriate behavior and statements appellee cited were, at most, trivial and petty
slights, which do not constitute an adverse employment action, White, supra.
{189} We find reasonable minds could find the cumulative effect of the various
actions and statements constituted an adverse employment action and proximately
caused appellee economic and non-pecuniary damages. We find appellee came
forward with sufficient, competent and credible evidence which, if believed by a jury,
showed she suffered an adverse employment action.
{190} Wilson argues he demonstrated a legitimate non-discriminatory reason for
each incident and employment action appellee cites. Much of Wilson's testimony and
evidence was that any adverse employment actions were due to appellee's personality
and her own behavior. We a.gree that if the jury believed this evidence, it could find
Wilson presented legitimate non-retaliatory reasons. The burden then shifted to
appellee to produce evidence Wilson's explanation was pretextual, and his motivation
was actually retaliation against her for filing complaints against him.
(191) Pretext is established by presenting evidence that the employer's
articulated legitimate business reason has no basis in fact, did not actually motivate the
adverse action, or was insufficient to motivate the adverse action, see Frantz v.
Beechmont Pet Hospital (1996), 117 Ohio App. 3d 351, 690 N.E. 2d 897, citations
deleted.
{192} Appellee presented the testimony of several law enforcement officers who
stated she was a good investigator, and her personality had never been an issue with
Stark County, Case No. 2008-CA-00055 22
them. We find this was sufficient to meet her burden of showing Wilson's articulated
legitimate business reasons were pretextual.
{193} We find the case presented genuine issues of fact upon which reasonable
minds could come to different conclusions. Accordingly, the trial court did not err in
overruling Wilson's motions for summary judgment and directed verdict, and submitting
the matter to the jury for its determination.
{194} The first and second assignments of error are both overruled.
{195} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is affirmed in part and reversed in part, and the cause is remanded
to the court for further proceedings in accord with law and consistent with this opinion.
By Gwin, P.J.,
Hoffman, J., concur;
Farmer, J., dissentsHON. W. SCOTT GWIN
HON. SHEILA G. FARMER
WSG:clw 0123
Stark County, Case No. 2008-CA-00055
Farmer, J., dissenting
{¶96} I respectfully dissent from the majority's view in Assignments of
Error II, III, and VII that R.C. 2744.05(A) abrogates the provisions of R.C.
2744.09 which specifically excludes employment claims from the provisions of
R.C. Chapter 2744.
{¶97} R.C. 2744.09 specifically exempts employment claims as set forth
in the majority opinion at ¶30-33. Pursuant to the unambiguous language
contained therein, sovereign immunity protection is abrogated for employment
claims regardless of the lack of a statutory directive in R.C. 4112.99.
{¶98} I would find punitive damages may be assessed against a political
subdivision in cases such as the one sub judice.
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
PAMELA DENCZAK HENDERHAN
Plaintiff-Appellee
-vs-
JACKSON TOWNSHIPPOLICE DEPARTMENT, ET AL
JUDGMENT ENTRY
Defendants-Appellants CASE NO. 2008-CA-00055
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Stark County, Ohio is affirmed in part and reversed in
part, and remanded to that court for further proceedings in accord with law and
consistent with this opinion. Costs to be split equally between Neftzer and Wilson.
HON. W. SCOTT GWIN'
HON. SHEILA G. FARMER
HON. WILLIAM B. HOFF