Piazza v. Cuyahoga Cty. (Slip Opinion) , 2019 Ohio 2499 ( 2019 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Piazza v. Cuyahoga Cty., Slip Opinion No. 2019-Ohio-2499.]
NOTICE
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advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2019-OHIO-2499
PIAZZA, APPELLEE, v. CUYAHOGA COUNTY, APPELLANT, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Piazza v. Cuyahoga Cty., Slip Opinion No. 2019-Ohio-2499.]
Political-subdivision tort liability—R.C. 2744.09(B)’s exception to immunity for
civil actions by an employee “relative to any matter that arises out of the
employment relationship between the employee and the political
subdivision”—R.C. 2744.09(B) does not require that the alleged tortious
conduct underlying a claim against a political subdivision have occurred
during the plaintiff’s employment by the political subdivision—Plaintiff’s
claim for false-light invasion of privacy is relative to a matter that arose out
of her employment relationship with county—Court of appeals’ judgment
affirming trial court’s rejection of county’s assertion of immunity affirmed.
(No. 2017-1649—Submitted March 5, 2019—Decided June 26, 2019.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 104724,
2017-Ohio-8163.
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SUPREME COURT OF OHIO
FRENCH, J.
{¶ 1} This appeal asks us to clarify the meaning of R.C. 2744.09(B), which
provides 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 arises out of the employment relationship between the
employee and the political subdivision.”
{¶ 2} Appellee, Marcella King Piazza, sued her former employer, appellant,
Cuyahoga County, for false-light invasion of privacy based on a statement allegedly
made by Cuyahoga County Executive Ed FitzGerald regarding the termination of
Piazza’s employment. Both the Cuyahoga County Court of Common Pleas and the
Eighth District Court of Appeals applied R.C. 2744.09(B) to reject the county’s
assertion of political-subdivision immunity. We affirm.
Facts and procedural background
{¶ 3} In 2003, Piazza began working as an office manager for the Cuyahoga
County Board of Revision (“BOR”). She continued to work there until August
2010, when the county transferred her from the BOR to the Department of Justice
Affairs. In June 2010, about two months before Piazza’s transfer, the Plain Dealer
Publishing Company (“Plain Dealer”) began to publish a series of articles reporting
on an ongoing investigation into the BOR and its employees and board members.
In December 2010, the Plain Dealer described its investigation as having
“unearthed rampant mismanagement, deplorable work habits, questionable tax
breaks, favors for the connected and violations of state law.”
{¶ 4} On March 9, 2011, the county terminated Piazza’s employment as
well as the employment of two other county employees who had previously worked
at the BOR. In a press release, County Executive FitzGerald stated, “Today three
people have been terminated from employment with Cuyahoga County due to the
reorganization of the Cuyahoga County Board[] of Revision.” Within 90 minutes
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of being informed of her termination, Piazza received a telephone call from a Plain
Dealer reporter seeking comment on her discharge. Piazza refused to comment.
{¶ 5} About 30 minutes later, the Plain Dealer published an article on
www.cleveland.com with the headline, “Cuyahoga County Executive Ed
FitzGerald fires three employees tied to board[] of revision scandal.” The article
began, “Three more Cuyahoga County employees have lost their jobs because of
the extensive dysfunction and mismanagement uncovered last year at the board[]
of revision.” Despite noting that Piazza and the other two terminated employees
had been reassigned in August 2010 to other county departments “after The Plain
Dealer reported about poor work habits of board employees,” the article quoted a
FitzGerald spokesperson as stating that the terminations were “due to our
reorganization of the board of revision.”
{¶ 6} Later that day, the Plain Dealer published a second article with the
headline, “Cuyahoga County Executive Ed FitzGerald says he couldn’t justify
keeping reassigned board[] of revision workers in new positions.” The second
article quoted FitzGerald as stating, “Instead of terminating [Piazza and the other
two former BOR employees], the previous administration reassigned them. * * *
We can’t afford to reshuffle people for their own job security.” The second article
included a photograph of Piazza that the county had supplied.
{¶ 7} Piazza initially filed a complaint for false-light invasion of privacy
against the county and the Plain Dealer in October 2013 (“Piazza I”), but she later
voluntarily dismissed that complaint pursuant to Civ.R. 41(A)(1). She filed this
action against the county and the Plain Dealer in August 2015. Piazza bases her
false-light claim against the county on the quoted statement from FitzGerald, and
she alleges that the statement created a false inference that she was involved in the
BOR corruption scandal. Piazza alleges that the statement was made with a
reckless disregard for its truth or falsity. She also alleges that as a result of conduct
by the county and the Plain Dealer, she suffered severe emotional distress, public
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humiliation, and damage to her personal and professional reputation. Here, we are
concerned only with Piazza’s claim against the county.
{¶ 8} The county moved for summary judgment, arguing that it was
immune from liability pursuant to R.C. 2744.02(A) and that Piazza’s claim was
time-barred. The trial court denied the county’s motion for summary judgment in
a two-sentence journal entry, holding that “[g]enuine issues of material fact exist
and [Piazza’s] false light claim is not time-barred, nor does political subdivision
immunity apply to [Piazza’s] claim arising from her employment relationship with”
the county.
{¶ 9} The county filed an interlocutory appeal from the denial of its motion
for summary judgment. The Eighth District addressed only the question of
immunity, and in a two-to-one decision, it affirmed the trial court’s rejection of the
county’s assertion of immunity, holding that Piazza’s claim “arose out of her
employment relationship with the county, and the county is not immune from
liability pursuant to the express exception in R.C. 2744.09(B).” 2017-Ohio-8163,
98 N.E.3d 1263, ¶ 23.
{¶ 10} This court accepted the county’s discretionary appeal. 152 Ohio
St.3d 1442, 2018-Ohio-1600, 96 N.E.3d 298. The county maintains that R.C.
2744.09(B) is unambiguous, is in derogation of common-law immunity, and must
be strictly construed in favor of immunity. The county essentially asks this court
to hold that R.C. 2744.09(B) does not apply when a former employee of a political
subdivision brings an intentional-tort claim that accrued when she was no longer
employed by the political subdivision. In particular, the county argues that a former
employee is not an “employee” under R.C. 2744.09(B) and that such a claim does
not “arise[] out of the employment relationship.”
Analysis
{¶ 11} R.C. Chapter 2744, the Political Subdivision Tort Liability Act,
establishes a comprehensive statutory scheme for the tort liability of political
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subdivisions and their employees. The act initially sets out a broad, general rule
that a political subdivision is not liable in damages in civil actions for injury, death
or loss to person or property caused by an act or omission in connection with a
governmental or proprietary function. R.C. 2744.02(A)(1). The act, however, goes
on to provide several exceptions to immunity, R.C. 2744.02(B), as well as defenses
to those exceptions, R.C. 2744.03.
{¶ 12} R.C. 2744.09 identifies certain scenarios in which R.C. Chapter
2744 does not apply. As relevant here, R.C. 2744.09(B) provides that Chapter 2744
“does not apply to, and shall not be construed to apply to * * * [c]ivil actions by an
employee * * * against his political subdivision relative to any matter that arises
out of the employment relationship between the employee and the political
subdivision.” R.C. 2744.09(B) “is designed to protect employees by allowing them
to recover against their employers, who would otherwise be entitled to immunity
under R.C. Chapter 2744.” Sampson v. Cuyahoga Metro. Hous. Auth., 131 Ohio
St.3d 418, 2012-Ohio-570, 966 N.E.2d 247, ¶ 13.
{¶ 13} The county asserted in its motion for summary judgment that it is
immune from Piazza’s claim pursuant to the general grant of immunity in R.C.
2744.02(A)(1) because R.C. 2744.02(B) does not provide any exceptions to
immunity for intentional torts. In response, Piazza did not dispute that the county
is a political subdivision nor did she argue that any exception to immunity in R.C.
2744.02(B) applies here. Piazza primarily argued that issue preclusion barred the
county’s immunity argument, but she also quoted Sampson for the proposition that
“[w]hen an employee of a political subdivision brings a civil action against the
political subdivision alleging an intentional tort, that civil action may qualify as a
‘matter that arises out of the employment relationship’ within the meaning of R.C.
2744.09(B),” id. at paragraph one of the syllabus, quoting R.C. 2744.09(B). Piazza
noted that she had previously opposed the county’s motion for judgment on the
pleadings in Piazza I by arguing that the intentional nature of the tort she alleges
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does not “erase[]” “the employment relationship between [Piazza] and the County”
or preclude a finding that the alleged tort arose out of the employment relationship.
{¶ 14} Both the trial court and the Eighth District applied R.C. 2744.09(B)
to reject the county’s assertion of immunity. Because the order on appeal is a denial
of a motion for summary judgment, we review the matter de novo, governed by the
standards in Civ.R. 56. Vacha v. N. Ridgeville, 136 Ohio St. 3d 199, 2013-Ohio-
3020, 992 N.E.2d 1126, ¶ 19, citing Comer v. Risko, 106 Ohio St. 3d 185, 2005-
Ohio-4559, 833 N.E.2d 712, ¶ 8.
{¶ 15} This appeal presents a legal question—whether R.C. 2744.09(B)
requires an ongoing employment relationship between the plaintiff and the
political-subdivision employer, either at the time the plaintiff’s claim accrued or at
the time the plaintiff filed her complaint—and a factual question—whether Piazza’s
false-light claim is relative to a matter that arises out of her employment
relationship with the county. We address the legal question first.
R.C. 2744.09(B) does not require an ongoing employment relationship
between the plaintiff and the political-subdivision employer
{¶ 16} A dispute over the meaning of a statute presents a question of law
that we consider de novo. Progressive Plastics, Inc. v. Testa, 133 Ohio St. 3d 490,
2012-Ohio-4759, 979 N.E.2d 280, ¶ 15. Our primary goal in statutory
interpretation is to give effect to the legislature’s intent. Christe v. GMS Mgt. Co.,
Inc., 88 Ohio St. 3d 376, 377, 726 N.E.2d 497 (2000). To do so, we look to and
give effect to the statutory language without deleting or inserting words. Bailey v.
Republic Engineered Steels, Inc., 91 Ohio St. 3d 38, 39-40, 741 N.E.2d 121 (2001),
citing Provident Bank v. Wood, 36 Ohio St. 2d 101, 105, 304 N.E.2d 378 (1973),
and Cleveland Elec. Illum. Co. v. Cleveland, 37 Ohio St. 3d 50, 524 N.E.2d 441
(1988), paragraph three of the syllabus.
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{¶ 17} The county argues that for R.C. 2744.09(B) to apply to her claim,
Piazza needed to be a current county employee, both when her claim accrued and
when she filed her complaint.
{¶ 18} The Eighth District rejected the county’s argument that because the
alleged tortious conduct—the statement by FitzGerald—occurred after the county
terminated Piazza’s employment, her claim does not arise out of her employment
relationship with the county. 2017-Ohio-8163, 98 N.E.3d 1263, at ¶ 17-19. In
doing so, it relied on Fleming v. Ashtabula Area City School Bd. of Edn., 11th Dist.
Ashtabula No. 2006-A-0030, 2008-Ohio-1892. Fleming was a substitute teacher
employed by a school board of education that chose not to renew his contract.
Following a school-board meeting at which the board discussed its decision not to
renew Fleming’s contract, the school-district superintendent made allegedly
defamatory statements about Fleming during a radio interview. Fleming thereafter
filed an action, including a defamation claim, against the school board.
{¶ 19} The Eleventh District applied R.C. 2744.09(B) and affirmed the trial
court’s rejection of the school board’s assertion of immunity. Like the county here,
the school board in Fleming argued that R.C. 2744.09(B) did not apply, because
the plaintiff was not an employee at the time the alleged torts occurred. The
Eleventh District rejected that argument. It stated:
The language of the statute expressly connects the terms
“employee” and “arises out of the employment relationship.”
Obviously, therefore, the statute only applies to former employees
if the alleged tortious conduct arises out of the employment
relationship. Appellants [the school board and superintendent] are
requesting an interpretation that affords an exception to the
immunity only if the conduct occurred while the employee was
technically employed. If the legislature intended the statute to be as
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narrow as appellants suggest, it would have been quite simple to
limit the application of the statute by stating just that. However, it
seems clear that “relative to any matter that arises out of the
employment relationship” is intended to encompass much more than
appellants propose.
(Emphasis sic.) Id. at ¶ 34.
{¶ 20} When the General Assembly intends to require that conduct or
injuries have occurred during ongoing employment, it does so expressly. For
example, with respect to employer intentional torts, R.C. 2745.01(A) refers to
claims “for damages resulting from an intentional tort committed by the employer
during the course of employment.” (Emphasis added.) Similarly, R.C. 4113.52(A),
which requires an employee to report certain violations of law by an employer,
applies only if the employee became aware of the violation “in the course of the
employee’s employment.” (Emphasis added.)
{¶ 21} In the context of workers’ compensation, a compensable injury must
have occurred “in the course of, and arising out of, the injured employee’s
employment.” (Emphasis added.) R.C. 4123.01(C). In distinguishing those
concepts, we have held that “in the course of” relates to “the time, place, and
circumstances of the injury”—so as to limit “benefits to employees who sustain
injuries while engaged in a required employment duty or activity consistent with
their contract for hire and logically related to the employer’s business.” Friebel v.
Visiting Nurse Assn. of Mid-Ohio, 142 Ohio St. 3d 425, 2014-Ohio-4531, 32 N.E.3d
413, ¶ 13. On the other hand, “arising out of” focuses on the causal connection
between the employment and the injury. Id. at ¶ 14.
{¶ 22} The General Assembly did not use “in the course of” or “during the
course of” language in R.C. 2744.09(B). Instead, it broadly removed from the
purview of R.C. Chapter 2744 civil actions “relative to any matter that arises out of
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the employment relationship.” Id. A claim “ ‘arises out of the employment
relationship’ ” between an employee and a political-subdivision employer “ ‘if there
is a causal connection or a causal relationship between the claims raised by the
employee and the employment relationship.’ ” Vacha, 136 Ohio St. 3d 199, 2013-
Ohio-3020, 992 N.E.2d 1126, at ¶ 17, quoting Sampson, 131 Ohio St. 3d 418, 2012-
Ohio-570, 966 N.E.2d 247, at paragraph two of the syllabus. The test under R.C.
2744.09(B) is one of causal connection, not of timing.
{¶ 23} The county relies on the General Assembly’s use of the present-tense
“arises” in R.C. 2744.09(B) to argue that the General Assembly intended to require
an ongoing employment relationship at the time a claim accrued, but the use of the
present tense there does not demonstrate that intention. Rather, because the phrase
“arises out of” refers to the existence of a causal connection, the phrase, read in the
context of the entire statute, requires only that there have been a causal connection
between the claim and the employment relationship, whether or not the
employment relationship was continuing or had terminated. We conclude that R.C.
2744.09(B) does not require that the alleged tortious conduct underlying a claim
against a political subdivision have occurred during the plaintiff’s employment by
the political subdivision.
{¶ 24} The county argues that its contrary reading of R.C. 2744.09(B) and
its belief that the statute is inapplicable here are consistent with Sampson and
Vacha, because the torts in those cases occurred while the plaintiffs were still
employed. We disagree. In Sampson, we simply rejected the employer’s attempt
to import from workers’ compensation law the fiction that an intentional tort, by
definition, is outside the scope of employment. Sampson at ¶ 12-14. We held that
a civil action against a political subdivision alleging an intentional tort “may qualify
as a ‘matter that arises out of the employment relationship’ within the meaning of
R.C. 2744.09(B).” Id. at ¶ 17. Vacha followed Sampson and reiterated that whether
R.C. 2744.09(B) applies depends on whether, based on the particular evidence
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presented in the case, there is a causal connection between the claim and the
employment relationship. Vacha at ¶ 19. Neither Sampson nor Vacha dictates the
result in this case.
{¶ 25} Before turning to the question whether Piazza’s claims, in fact, arose
out of the employment relationship between Piazza and the county, we briefly
address—and reject—the county’s argument that the plaintiff must have been an
employee at the time she filed a lawsuit against a political-subdivision employer in
order for R.C. 2744.09(B) to apply.
{¶ 26} The county argues that because R.C. 2744.09 applies to “civil
actions by an employee,” the statute unambiguously requires that the plaintiff have
been an “employee” when she filed her complaint. As used in R.C. Chapter 2744,
“ ‘[e]mployee’ means an officer, agent, employee, or servant, whether or not
compensated or full-time or part-time, who is authorized to act and is acting within
the scope of the officer’s, agent’s, employee’s, or servant’s employment for a
political subdivision.” R.C. 2744.01(B). In light of that definition, the county’s
reading of R.C. 2744.09(B) is plausible. But so is Piazza’s reading: that the
statutory language does not put conditions on when an action was filed, so long as
the claim arises from the employment relationship. Reading R.C. 2744.09(B) in its
entirety, we agree with the Eleventh District that based on the statute’s failure to
“specifically address at what point the employee must have been employed by the
political subdivision,” the statute is ambiguous. Fleming, 11th Dist. Ashtabula No.
2006-A-0030, 2008-Ohio-1892, at ¶ 30.
{¶ 27} We reject the county’s argument that we must interpret any
ambiguity in R.C. 2744.09(B) in favor of political-subdivision immunity. The
county argues that because the exceptions to immunity in R.C. 2744.02(B) are in
derogation of the general grant of immunity in R.C. 2744.02(A), courts must
construe the exceptions narrowly to maintain the policy balance the General
Assembly established. See, e.g., Doe v. Dayton City School Dist. Bd. of Edn., 137
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Ohio App. 3d 166, 169, 738 N.E.2d 390 (2d Dist.1999); Harp v. Cleveland Hts., 87
Ohio St. 3d 506, 514-515, 721 N.E.2d 1020 (2000) (Cook, J., dissenting), citing
Wall v. Cincinnati, 150 Ohio St. 411, 83 N.E.2d 389 (1948). R.C. 2744.09(B),
however, differs from R.C. 2744.02(B). R.C. 2744.02(A)(1) states that political
subdivisions are immune from liability “[e]xcept as provided in [R.C.
2744.02](B).” 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. In those situations,
therefore, we do not start with an assumption of immunity, and the policy
justification for construing an exception in favor of immunity is absent.
{¶ 28} Neither this court nor, as far as we can discern, any Ohio appellate
court has ever adopted the county’s position that R.C. 2744.09(B) applies only if
the plaintiff was still an employee of the political subdivision when she filed her
complaint. To the contrary, in the nearly 34 years since the enactment of R.C.
2744.09(B), Ohio courts—including this court—have repeatedly applied the statute
in cases filed after the plaintiff’s employment by a political subdivision had ended.
See Vacha v. N. Ridgeville, 9th Dist. Lorain No. 10CA009750, 2011-Ohio-2446,
¶ 20-24 (although plaintiff was granted permanent-total-disability benefits prior to
filing complaint, R.C. 2744.09(B) precluded immunity so long as there was a causal
connection between Vacha’s claims and her employment relationship with the
city), aff’d, 136 Ohio St. 3d 199, 2013-Ohio-3020, 992 N.E.2d 1126; George v.
Newburgh Hts., 2012-Ohio-2065, 970 N.E.2d 1138 (8th Dist.); Steinbrink v.
Greenon Local School Dist., 2d Dist. Clark No. 11CA0050, 2012-Ohio-1438; Long
v. Hanging Rock, 4th Dist. Lawrence No. 09CA30, 2011-Ohio-5137; Fleming, 11th
Dist. Ashtabula No. 2006-A-0030, 2008-Ohio-1892, ¶ 31; Gessner v. Union, 159
Ohio App. 3d 43, 2004-Ohio-5770, 823 N.E.2d 1 (2d Dist.).
{¶ 29} The General Assembly has instructed courts to presume that in
enacting R.C. 2744.09(B), it intended a “just and reasonable result.” R.C. 1.47(C).
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Reading the word “employee” in R.C. 2744.09(B) as requiring an ongoing
employment relationship at the time a plaintiff files an employment-related claim
against her political-subdivision employer would give rise to an unreasonable
result. As the Eleventh District has astutely noted, such a reading “would
encourage employers to terminate employees to avoid potential liability when an
incident has occurred.” Fleming at ¶ 31. It is unreasonable to presume that the
General Assembly intended to incentivize an employer to terminate an employee
who may have an employment-related claim to preserve its entitlement to political-
subdivision immunity.
{¶ 30} We reject the dissenting opinion’s assertion that we are interfering
with the General Assembly’s constitutional authority to make policy for the state.
Indeed, it is undisputed that it is not this court’s role to second-guess the General
Assembly’s policy choices. Ohio Neighborhood Fin., Inc. v. Scott, 139 Ohio St. 3d
536, 2014-Ohio-2440, 13 N.E.3d 1115, ¶ 38, citing Kaminski v. Metal & Wire
Prods. Co., 125 Ohio St. 3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 61. But it is
our constitutional role “to interpret the law that the General Assembly enacts,” with
the “primary goal * * * to ascertain and give effect to the intent of the legislature.”
State v. Taylor, 138 Ohio St. 3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 14. And in
light of the General Assembly’s stated intention to achieve a “just and reasonable”
result when enacting a statute, R.C. 1.47(C), we have recognized that “ ‘statutes
will be construed to avoid unreasonable or absurd consequences.’ ” State v. White,
142 Ohio St. 3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 29, quoting State v. Wells,
91 Ohio St. 3d 32, 34, 740 N.E.2d 1097 (2001).
{¶ 31} In accord with the prior decisions cited above and to avoid the
unreasonable results that would arise from a contrary ruling, we hold that R.C.
2744.09(B) does not require that a plaintiff have been employed by the political-
subdivision employer at the time she filed her lawsuit.
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Piazza’s false-light claim is “relative to [a] matter that arises out of the
employment relationship”
{¶ 32} We now turn from the legal question regarding the meaning of R.C.
2744.09(B) to the factual question whether Piazza’s false-light claim is “relative to
any matter that arises out of the employment relationship” between Piazza and the
county. In answering that question, we must consider whether there is a causal
connection between Piazza’s claim and her employment relationship with the
county. Sampson, 131 Ohio St. 3d 418, 2012-Ohio-570, 966 N.E.2d 247, at
paragraph two of the syllabus.
{¶ 33} As part of its de novo review of the trial court’s rejection of the
county’s assertion of immunity, the court of appeals held that Piazza’s claim arose
out her employment relationship with the county. 2017-Ohio-8163, 98 N.E.3d
1263, at ¶ 11, 23. We likewise apply a de novo standard of review. Sampson at
¶ 19. And in doing so, we agree with the Eighth District’s conclusion that there is
no genuine issue of material fact and that Piazza’s claim is relative to a matter that
arose out of her employment relationship with the county.
{¶ 34} As we consider whether there is a causal connection between
Piazza’s claim and her employment relationship with the county, we are not judging
the merits of Piazza’s claim; that question is not before us. We therefore do not
consider the county’s arguments that Piazza’s claim does not satisfy the required
elements of a false-light claim or that the defense of truth will bar the county’s
liability. Instead, we consider only whether there is a genuine issue of material fact
regarding a causal connection between Piazza’s claim and her employment
relationship with the county. Whether Piazza can succeed on the merits of her claim
is a question for the trial court.
{¶ 35} The statement forming the basis of Piazza’s claim against the county
concerns, and was made at about the same time as, the county’s termination of her
employment. According to Piazza, the quoted statement falsely connected her and
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her termination with the BOR corruption scandal. Termination of employment is a
matter that arises out of the employment relationship. Gessner, 159 Ohio App. 3d
43, 2004-Ohio-5770, 823 N.E.2d 1, at ¶ 31. In Schmitt v. Cuyahoga Cty.
Educational Serv. Ctr., the Eighth District held that because the plaintiff’s claims,
including claims for negligent and intentional infliction of emotional distress, “stem
from the termination of her employment, it is apparent there is a causal connection
between her claims and her employment relationship” with her former employers.
8th Dist. Cuyahoga No. 97623, 2012-Ohio-2210, ¶ 14.
{¶ 36} Unlike the plaintiff in Schmitt, Piazza has not alleged that the
termination of her employment was itself tortious. But the statement allegedly
made by FitzGerald is “relative to” her termination, which is a “matter that arises
out of the employment relationship.” R.C. 2744.09(B). As the Eighth District
stated in this case, “the only relationship between Piazza and the county executive
was that of employment.” 2017-Ohio-8163, 98 N.E.3d 1263, at ¶ 22. The
statement attributed to FitzGerald was directly related to Piazza’s performance, her
employment with the county, and the county’s termination of her employment.
Neither Piazza’s termination nor FitzGerald’s statement explaining why she was
terminated could have occurred absent an employment relationship between Piazza
and the county. Examining the factual basis of Piazza’s claim, we agree with the
Eighth District that Piazza’s claim is relative to a matter that arises out of her
employment relationship with the county.
Conclusion
{¶ 37} We hold that there is no temporal limitation in R.C. 2744.09(B) that
requires an ongoing employment relationship, either at the time a plaintiff’s claim
against a political-subdivision employer accrued or at the time the plaintiff filed the
claim against her political-subdivision employer. There must, however, be a causal
connection between the claim and the plaintiff’s employment relationship, whether
ongoing or terminated, with the political-subdivision employer. For these reasons,
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we affirm the Eighth District’s judgment affirming the trial court’s rejection of the
county’s assertion of immunity.
Judgment affirmed.
O’CONNOR, C.J., and DONNELLY and FROELICH, JJ., concur.
FISCHER, J., dissents, with an opinion joined by KENNEDY and DEWINE, JJ.
JEFFREY E. FROELICH, J., of the Second Appellate District, sitting for
STEWART, J.
_________________
FISCHER, J., dissenting.
{¶ 38} The majority determines that R.C. 2744.09(B) is ambiguous and
holds that the statute does not require a plaintiff to have been employed by the
political-subdivision employer at the time the plaintiff filed the lawsuit. Because I
would conclude that the statute is unambiguous and thus requires a plaintiff to be
an employee of the political subdivision at the time of filing the lawsuit, I
respectfully dissent.
A former employee of a political subdivision is not an “employee” for
purposes of R.C. 2744.09(B)
{¶ 39} The propositions of law we accepted for review in this case address
the meaning of R.C. 2744.09(B), which provides:
This chapter does not apply to, and shall not be construed to
apply to, the following:
***
(B) Civil actions by an employee * * * against his political
subdivision relative to any matter that arises out of the employment
relationship between the employee and the political subdivision.
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(Emphasis added.) The issue that we must resolve first is whether appellee,
Marcella King Piazza, a former employee of Cuyahoga County at the time she filed
the lawsuit in this case, is an “employee” for purposes of R.C. 2744.09(B).
{¶ 40} We determine the General Assembly’s intent first by examining the
language of the statute. Stewart v. Vivian, 151 Ohio St. 3d 574, 2017-Ohio-7526,
91 N.E.3d 716, ¶ 24. “When the language of a statute is plain and unambiguous
and conveys a clear and definite meaning, there is no need for this court to apply
the rules of statutory interpretation.” Symmes Twp. Bd. of Trustees v. Smyth, 87
Ohio St. 3d 549, 553, 721 N.E.2d 1057 (2000).
{¶ 41} In reviewing the language of the statute, “we may not restrict,
constrict, qualify, narrow, enlarge, or abridge the General Assembly’s wording.”
State ex rel. Carna v. Teays Valley Local School Dist. Bd. of Edn., 131 Ohio St. 3d
478, 2012-Ohio-1484, 967 N.E.2d 193, ¶ 18. “Instead, we must accord significance
and effect to every word, phrase, sentence, and part of the statute, and abstain from
inserting words where words were not placed by the General Assembly.” (Citation
omitted and emphasis added.) Id. When the General Assembly has defined the
terms used within the statute, like “employee” in this case, those definitions control
when applying the statute. Terteling Bros. v. Glander, 151 Ohio St. 236, 85 N.E.2d
379 (1949), paragraph one of the syllabus; Vivian at ¶ 25; Stewart v. Trumbull Cty.
Bd. of Elections, 34 Ohio St. 2d 129, 130-131, 296 N.E.2d 676 (1973).
{¶ 42} The majority determines that R.C. 2744.09(B) is ambiguous because
the statute does not specify at what point the plaintiff must have been employed by
the political subdivision. Reading R.C. 2744.09(B) in a vacuum may support that
conclusion, but reviewing the statute in light of the General Assembly’s definition
of “employee” in R.C. 2744.01(B) compels the opposite conclusion—R.C.
2744.09(B) is unambiguous and applies only if the plaintiff was an employee of the
political subdivision at the time the plaintiff filed the lawsuit.
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{¶ 43} The General Assembly has specifically defined the term “employee”
in R.C. 2744.01(B). Thus, that definition is implicit in, and controls in the
application of, R.C. 2744.09(B). Terteling Bros. at paragraph one of the syllabus.
As used in Chapter R.C. 2744, “ ‘[e]mployee’ means an officer, agent, employee,
or servant, whether or not compensated or full-time or part-time, who is authorized
to act and is acting within the scope of the officer’s, agent’s, employee’s, or
servant’s employment for a political subdivision.” (Emphasis added.) R.C.
2744.01(B). The General Assembly has defined “employee” as an individual who
has existing authority to act and who is acting (present tense) within the scope of
his or her employment—thus someone who is currently employed by the political
subdivision. Therefore, when reading R.C. 2744.09(B) (“Civil actions by an
employee * * *”) with the applicable definition of “employee,” it is clear that the
plaintiff must be an employee—i.e., a current employee—of the political
subdivision when the lawsuit is filed for R.C. 2744.09(B) to apply.
{¶ 44} The majority, in holding that R.C. 2744.09(B) does not require an
ongoing employment relationship between the plaintiff and the political
subdivision, in effect, ignores the General Assembly’s definition of “employee”
and tacitly inserts language, into either R.C. 2744.01(B) or R.C. 2744.09(B), to
permit a former employee to proceed with his or her civil action against a political
subdivision under R.C. 2744.09(B). Neither the definition of “employee” provided
in R.C. 2744.01(B) nor the language of R.C. 2744.09(B), however, refers to “past,”
“former,” “resigned,” or “fired” employees. If the General Assembly had intended
to allow political subdivisions to be sued by former employees, the General
Assembly could have written “by a current or past employee” into R.C. 2744.09(B)
or provided a broader definition of “employee” in R.C. 2744.01(B). It did not. This
court has repeatedly instructed that statutes passed by the General Assembly, if
clear in their wording, shall not be construed in a manner contrary to the words used
and that a court shall not add words to, or delete words from, an unambiguous
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statute. See, e.g., Carna, 131 Ohio St. 3d 478, 2012-Ohio-1484, 967 N.E.2d 193, at
¶ 18. The majority has strayed from those directives.
{¶ 45} I would hold that R.C. 2744.09(B) is unambiguous and conclude,
based on the definition of “employee” provided in R.C. 2744.01(B), that a plaintiff
must be an employee of the political subdivision at the time of filing the lawsuit for
R.C. 2744.09(B) to apply.
This court’s decision in Vacha and other appellate courts’ decisions do not
preclude us from applying the plain language of R.C. 2744.09(B)
{¶ 46} The majority supports its holding by noting that neither this court
nor any other Ohio appellate court has adopted the position that R.C. 2744.09(B)
applies only if the plaintiff is still an employee of the political subdivision at the
time the plaintiff files the complaint. The majority notes that courts have
“repeatedly applied the statute in cases filed after the plaintiff’s employment by a
political subdivision had ended.” Majority opinion at ¶ 28.
{¶ 47} It is true that no appellate court in Ohio has adopted the position that
R.C. 2744.09(B) applies only if the plaintiff is still an employee of the political
subdivision at the time the plaintiff files the complaint. The majority, however,
fails to acknowledge that in this court and in all but one of the courts of appeals, no
case has ever squarely presented the issue whether a former employee of the
political subdivision is an “employee” for purposes of R.C. 2744.09(B).
{¶ 48} In Vacha v. N. Ridgeville, 136 Ohio St. 3d 199, 2013-Ohio-3020, 992
N.E.2d 1126, this court may have implicitly assumed, for purposes of deciding
other issues relating to the statute, that R.C. 2744.09(B) applies to lawsuits filed by
former political-subdivision employees. But we are not bound by that assumption,
because the issue whether a former employee is an “employee” for purposes of R.C.
2744.09(B) was not raised as a proposition of law or argued by the parties in that
case. See State v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424, 933 N.E.2d 753,
¶ 77-78 (O’Donnell, J., concurring in part and dissenting in part). Thus, this court’s
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decision in Vacha does not preclude us from deciding this case based solely on the
plain language of the statute.
{¶ 49} The only appellate court that has ever remotely addressed this
particular issue is the Eleventh District Court of Appeals in Fleming v. Ashtabula
Area City School Bd. of Edn., 11th Dist. Ashtabula No. 2006-A-0030, 2008-Ohio-
1892. That court did not conduct a statutory analysis of R.C. 2744.09(B), nor did
it refer to the definition of “employee” provided in R.C. 2744.01(B). Instead, the
court simply rejected, on policy grounds, the argument that the plaintiff must be an
employee of the political subdivision at the time the lawsuit is filed: “To hold
otherwise would encourage employers to terminate employees to avoid potential
liability when an incident has occurred.” Id. at ¶ 31. Given Fleming’s lack of
statutory analysis, this court should not rely on that decision.
A plain-language application of R.C. 2744.09(B) would not lead to
unreasonable consequences
{¶ 50} The majority explains, as further justification of its holding and its
rejection of the clear and unambiguous language of R.C. 2744.01(B) and
2744.09(B), that “[r]eading the word ‘employee’ in R.C. 2744.09(B) as requiring
an ongoing employment relationship at the time a plaintiff files an employment-
related claim against her political-subdivision employer would give rise to an
unreasonable result.” Majority opinion at ¶ 29. The majority relies on R.C.
1.47(C), which provides that “[i]n enacting a statute, it is presumed that * * * [a]
just and reasonable result is intended.” The majority claims that “[i]t is
unreasonable to presume that the General Assembly intended to incentivize an
employer to terminate an employee who may have an employment-related claim to
preserve its entitlement to political-subdivision immunity.” Id. at ¶ 29.
{¶ 51} Generally, when there is no ambiguity in a statute, this court does
not apply any of the rules of statutory construction. Smyth, 87 Ohio St. 3d at 553,
721 N.E.2d 1057; United States v. Wiltberger, 18 U.S. 76, 95-96, 5 L. Ed. 37 (1820).
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Because the language of R.C. 2744.09(B) is clear and unambiguous, there is no
need to apply the rules of statutory construction. By applying a statutory-
construction analysis to R.C. 2744.09(B), a clear and unambiguous statute, the
majority invades the role of the legislature to write laws and make policy
determinations. See Jacobson v. Kaforey, 149 Ohio St. 3d 398, 2016-Ohio-8434,
75 N.E.3d 203, ¶ 8. Therefore, I would simply apply the statute as written and hold
that a plaintiff must be an employee of the political subdivision at the time of filing
the lawsuit for R.C. 2744.09(B) to apply.
{¶ 52} But even assuming arguendo that it is appropriate to consider the
rules of statutory construction, including R.C. 1.47(C), when applying a clear and
unambiguous statute, the consequences of a plain-language application of R.C.
2744.09(B) are not unreasonable. This court determines, on a case-by-case basis,
whether an interpretation of a statute produces unreasonable consequences. See,
e.g., State ex rel. Dispatch Printing Co. v. Wells, 18 Ohio St. 3d 382, 384, 481
N.E.2d 632 (1985). Though this court has previously rejected interpretations of
statutes that would lead to unreasonable consequences, we have not yet defined
“unreasonable consequence.” Generally, “unreasonable” means contrary to reason
or sound judgment or beyond the limits of acceptability or fairness. See Black’s
Law Dictionary 1772 (10th Ed.2014). In another context, we have determined that
a trial court’s decision is unreasonable when there is no sound reasoning process
that would support the decision. AAAA Enterprises, Inc. v. River Place Community
Urban Redevelopment Corp., 50 Ohio St. 3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 53} Despite the lack of a definition of “unreasonable,” this court has
determined that an interpretation of a statute would produce unreasonable
consequences when there would be some type of unintended and serious legal
consequence. See, e.g., Dispatch Printing Co. at 634 (rejecting an interpretation of
the Public Records Act that would allow a provision of a collective-bargaining
agreement to take precedence over the act’s requirements because that
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January Tern, 2019
interpretation would have empowered private citizens to alter legal relationships
between a government and the public at large through collective-bargaining
agreements); State v. Wells, 91 Ohio St. 3d 32, 34, 740 N.E.2d 1097 (2001) (the
statutory term “anal cavity” does not include the victim’s buttocks because that
interpretation would subject an offender committing only one criminal act to
prosecution under two different criminal provisions).
{¶ 54} Although there is no established test for determining whether an
interpretation of a statute would produce unreasonable consequences, what is clear
from the above definition of “unreasonable” and from our case law is that an
unreasonable consequence is something more than an undesirable consequence.
An unreasonable consequence is one that goes beyond the limits of fairness or that
is contrary to reason. And here, the consequence of applying the plain language of
R.C. 2744.09(B) is that a political subdivision would be entitled to immunity when
a former employee files a civil action against the political subdivision. While this
consequence might be undesirable for Piazza and other former employees of
political subdivisions, it is not unreasonable, illogical, and/or unfair.
{¶ 55} I understand the majority’s policy concern that if we applied the
plain language of the statute, employers could be encouraged to terminate
employees when an incident has occurred in order to avoid potential liability, see
majority opinion at ¶ 29, citing Fleming, 2008-Ohio-1892, at ¶ 31. I do not presume
to know the policy considerations of the General Assembly, but I am aware that
while there may be undesirable consequences, those consequences might be
outweighed by other policy considerations such as limiting the liability of a political
subdivision, saving local governments from expending valuable resources, and
encouraging current employees to bring actions swiftly.
{¶ 56} Here, the General Assembly chose to define the term “employee” in
R.C. 2744.01(B), and it chose not to include former employees in that definition or
to provide a separate provision for former employees in R.C. 2744.09. If the
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SUPREME COURT OF OHIO
General Assembly wishes to change the wording of either statute in order to permit
a former employee’s lawsuit to be covered by R.C. 2744.09(B), the General
Assembly may do so. This court does not have that authority. Kaminski v. Metal
& Wire Prods. Co., 125 Ohio St. 3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 61.
The General Assembly—not this court—makes policy determinations. Id.
Therefore, I would conclude that a plain-language application of R.C. 2744.09(B)
would not create unreasonable—and certainly would not create absurd—
consequences.
Conclusion
{¶ 57} R.C. 2744.09(B) is clear and unambiguous. As explained above, this
court has never held that a former employee is an “employee” for purposes of R.C.
2744.09(B). Thus, under the particular wording of that statute, a civil action must
be brought “by an employee,” meaning an employee of the political subdivision at
the time of the lawsuit’s filing, for R.C. 2744.09(B) to apply. Because Piazza was
not an employee of Cuyahoga County at the time she filed the lawsuit, I would
conclude that R.C. Chapter 2744’s general rule of immunity applies. Since I would
hold that Piazza is not an “employee” for purposes of R.C. 2744.09(B), I would not
reach the factual question whether her false-light claim is “relative to [a] matter that
arises out of the employment relationship,” id., between Piazza and the county.
{¶ 58} For the reasons set forth above, I must respectfully dissent.
KENNEDY and DEWINE, JJ., concur in the foregoing opinion.
_________________
Schuster & Simmons Co., L.P.A., and Nancy C. Schuster, for appellee.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Brian
R. Gutkoski, Assistant Prosecuting Attorney; Robert J. Triozzi, Cuyahoga County
Law Director, and Awatef Assad and Jonathan M. Scandling, Assistant Law
Directors, for appellant.
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January Tern, 2019
Gwen E. Callender; and Bolek, Besser, Glesius, L.L.C., and Matthew D.
Besser, urging affirmance for amici curiae Fraternal Order of Police of Ohio, Inc.,
and Ohio Employment Lawyers Association.
_________________
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