Zumwalde v. Madeira & Indian Hill Joint Fire District ( 2011 )


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  • [Cite as Zumwalde v. Madeira & Indian Hill Joint Fire Dist., 
    128 Ohio St. 3d 492
    , 2011-Ohio-
    1603.]
    ZUMWALDE, APPELLEE, v. MADEIRA AND INDIAN HILL JOINT FIRE
    DISTRICT ET AL; ASHBROCK, APPELLANT.
    [Cite as Zumwalde v. Madeira & Indian Hill Joint Fire Dist.,
    
    128 Ohio St. 3d 492
    , 2011-Ohio-1603.]
    Civil immunity of political subdivisions and employees — Action by employee of
    political subdivision arising out of employment relationship — R.C.
    2744.09(B).
    (No. 2010-0218 — Submitted February 1, 2011 — Decided April 7, 2011.)
    APPEAL from the Court of Appeals for Hamilton County,
    No. C-090015, 2009-Ohio-6801.
    __________________
    SYLLABUS OF THE COURT
    In a civil action brought by an employee of a political subdivision against another
    employee of the political subdivision arising out of the employment
    relationship, R.C. 2744.09(B) removes immunity only as to the political
    subdivision and does not affect the statutory immunity of the fellow
    employee.
    __________________
    CUPP, J.
    {¶ 1} The issue in this case is whether R.C. 2744.09(B) removes
    immunity from an employee of a political subdivision in a civil action filed
    against the employee by another employee of the same political subdivision when
    the civil action relates to a matter that arises out of the employment relationship
    between the employee bringing the suit and the political subdivision. For the
    reasons that follow, we conclude that R.C. 2744.09(B) does not remove immunity
    from an employee of a political subdivision under such circumstances.                  We
    SUPREME COURT OF OHIO
    accordingly reverse the judgment of the court of appeals and remand this matter
    to the court of appeals for further proceedings consistent with this opinion.
    Facts and Procedural History
    {¶ 2} Plaintiff-appellee, Barbara Zumwalde, previously sued defendant
    Madeira and Indian Hill Joint Fire District for unlawful employment
    discrimination.   As part of the resolution of that matter, the district offered
    Zumwalde full-time employment contingent upon her passing a physical
    examination.
    {¶ 3} In completing a questionnaire for the examination on July 14,
    2005, Zumwalde indicated that she neither had nor had ever had back problems.
    Further, Zumwalde certified that all her answers in the questionnaire were true
    and complete and acknowledged that any material and deliberate falsification of
    fact would be grounds for dismissal.         It was later learned, however, that
    Zumwalde’s medical records indicated that she had received chiropractic
    treatment for back pain beginning in May 2005.
    {¶ 4} On September 29, 2005, Zumwalde sustained a work-related injury
    to her low back during a training exercise.        As a result, Zumwalde filed a
    workers’ compensation claim, which the district approved for benefits on or about
    October 14, 2005.
    {¶ 5} While investigating Zumwalde’s workers’ compensation claim,
    Chief Stephen Ashbrock of the district learned of Zumwalde’s chiropractic
    treatment   for     back   pain.     Ashbrock     determined     that   Zumwalde’s
    misrepresentations violated the district’s Personnel Guide and scheduled a
    predisciplinary conference for July 31, 2006.
    {¶ 6} Based on the evidence presented at the July 31, 2006 conference,
    Ashbrock found that Zumwalde had violated two provisions of the Personnel
    Guide. Ashbrock suspended Zumwalde for 30 calendar days without pay and
    provided notice of her right of appeal to the district’s Personnel Committee of the
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    January Term, 2011
    board of trustees. Zumwalde appealed the suspension. On October 20, 2006, the
    Personnel Committee sustained Ashbrock’s conclusions and findings but reduced
    the period of loss of pay to 20 calendar days.
    {¶ 7} Zumwalde then filed suit in the Hamilton County Court of
    Common Pleas against the district and Ashbrock, asserting retaliation claims for
    filing (1) her previous discrimination suit and (2) the workers’ compensation
    claim.    The district and Ashbrock filed a motion for summary judgment.
    Ashbrock argued that, as a district employee, he was immune from Zumwalde’s
    claim pursuant to R.C. 2744.03(A)(6) and that there was no evidence that he had
    acted with a malicious purpose, in bad faith, or in a wanton or reckless manner so
    that he would lose his immunity. The trial court, in denying Ashbrock’s motion,
    held that a genuine issue of material fact existed as to whether Ashbrock had
    acted maliciously, in bad faith, or in a wanton or reckless manner.
    {¶ 8} Ashbrock appealed the decision to the First District Court of
    Appeals. In affirming the denial of immunity, the First District analyzed the issue
    pursuant to R.C. 2744.09(B).          The First District held that R.C. 2744.09(B)
    removes immunity from political-subdivision employees in civil actions filed
    against them by another employee of the political subdivision in regard to any
    matter arising out of the employment relationship between the employee filing the
    suit and the political subdivision.
    {¶ 9} We     accepted    Ashbrock’s     appeal   under   our   discretionary
    jurisdiction for review of a single proposition of law: “R.C. §2744.09(B) applies
    only to claims by an employee against a ‘public subdivision’ for ‘claims arising
    out of the employment relationship.’" 
    125 Ohio St. 3d 1413
    , 2010-Ohio-1893,
    
    925 N.E.2d 1001
    .
    Relevant Statute
    {¶ 10} R.C. Chapter 2744, the political-subdivision tort-immunity law,
    was enacted in 1985 and addresses when political subdivisions, their departments
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    and agencies, and their employees are immune from liability for their actions.
    Exceptions to immunity are contained in R.C. Chapter 2744.
    {¶ 11} R.C. 2744.09 provides:
    {¶ 12} “This chapter does not apply to, and shall not be construed to apply
    to, the following:
    {¶ 13} “(A) Civil actions that seek to recover damages from a political
    subdivision or any of its employees for contractual liability;
    {¶ 14} “(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;
    {¶ 15} “* * *
    {¶ 16} “(E) Civil claims based upon alleged violations of the constitution
    or statutes of the United States, except that the provisions of section 2744.07 of
    the Revised Code shall apply to such claims or related civil actions.”
    Analysis
    {¶ 17} Ashbrock argues that the First District erred in its application of
    R.C. 2744.09(B) to the circumstances of this case. He asserts that by the plain
    language of R.C. 2744.09(B), the removal of immunity is limited to claims
    asserted against the political subdivision and does not extend to removal of
    immunity held by a fellow employee of the political subdivision.
    {¶ 18} Ashbrock maintains that in order for the subsection to apply to a
    claim against a fellow employee, the words “or any employees of the political
    subdivision” would have to be added to the end of Subsection (B).
    {¶ 19} Further, Ashbrock maintains that R.C. 2744.09(A) supports his
    position that this language should not be read into Subsection (B).       This is
    because R.C. 2744.09(A) contains the phrase “or any of its employees.”
    Ashbrock contends that because the General Assembly specifically included the
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    January Term, 2011
    phrase “or any of its employees” in Subsection (A) for the purpose of allowing
    claims not only against the political subdivision but also against the employees of
    the subdivision, the General Assembly, if it meant to remove immunity from
    political-subdivision employees in Subsection (B), would necessarily have used
    the phrase “or any of its employees,” which it did include in Subsection (A).
    {¶ 20} In response, Zumwalde contends that the plain language of R.C.
    2744.09(B) precludes both political subdivisions and their employees from
    asserting immunity in cases arising out the employment relationship. Zumwalde
    relies on the use of the term “civil actions” in the statute for her argument. She
    maintains that application of the ordinary meaning of the term “civil actions” to
    R.C. 2744.09(B) demonstrates that the General Assembly intended to remove the
    entire “suit” or “proceeding” from the purview of R.C. Chapter 2744 immunity
    and not merely those claims alleged against a political subdivision.
    {¶ 21} Zumwalde further asserts that examining R.C. 2744.09 as a whole
    illustrates that the General Assembly purposefully chose to remove entire “civil
    actions” arising out of the employment relationship from the ambit of R.C.
    Chapter 2744. She compares the use of “[c]ivil actions” in R.C. 2744.09(B) with
    the use of “[c]ivil claims” in R.C. 2744.09(E) to foreclose the possibility that the
    General Assembly intended to limit the operation of Subsection (B) to claims
    against a political subdivision. If the legislature intended R.C. 2744.09(B) to
    remove immunity only as to claims raised by an employee against the employee’s
    political subdivision, Zumwalde argues, it would have made its intention clear by
    using the word “claims” as it did in R.C. 2744.09(E). Zumwalde contends that
    adopting Ashbrock’s interpretation requires the court to substitute the word
    “claim” for “action,” which oversteps the judiciary’s duty to apply the law as
    enacted by the legislature.
    {¶ 22} This court concisely stated a well-settled rule of statutory
    interpretation in Slingluff v. Weaver (1902), 
    66 Ohio St. 621
    , 
    64 N.E. 574
    ,
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    SUPREME COURT OF OHIO
    paragraph two of the syllabus: "[T]he intent of the law-makers is to be sought
    first of all in the language employed, and if the words be free from ambiguity and
    doubt, and express plainly, clearly and distinctly, the sense of the lawmaking
    body, there is no occasion to resort to other means of interpretation. The question
    is not what did the general assembly intend to enact, but what is the meaning of
    that which it did enact. That body should be held to mean what it has plainly
    expressed, and hence no room is left for construction."
    {¶ 23} The court further expounded upon this rule in Provident Bank v.
    Wood (1973), 
    36 Ohio St. 2d 101
    , 105-106, 65 O.O.2d 296, 
    304 N.E.2d 378
    : "It is
    a cardinal rule that a court must first look to the language of the statute itself to
    determine the legislative intent. If that inquiry reveals that the statute conveys a
    meaning which is clear, unequivocal and definite, at that point the interpretive
    effort is at an end, and the statute must be applied accordingly."         (Citation
    omitted.)
    {¶ 24} The language of R.C. 2744.09(B) is clear and unambiguous on its
    face and requires no interpretation. Subsection (B) clearly states that immunity is
    removed only with respect to political subdivisions. Had the General Assembly
    intended also to remove immunity from the employees of political subdivisions, it
    could have easily done so by including the word “employee” in R.C. 2744.09(B),
    as it did in R.C. 2744.09(A). To find otherwise would require this court to insert
    “employee” into Subsection (B). But “[a] court should give effect to the words
    actually employed in a statute, and should not delete words used, or insert words
    not used, in the guise of interpreting the statute.” State v. Taniguchi (1995), 
    74 Ohio St. 3d 154
    . 156, 
    656 N.E.2d 1286
    .
    {¶ 25} Additionally, Zumwalde’s argument that the use of “civil actions”
    instead of “civil claims” signifies the legislature’s intent to remove immunity for
    employees of political subdivisions is without merit. R.C. 2744.09(A) employs
    the term “civil actions” but, as discussed above, specifically states that immunity
    6
    January Term, 2011
    is removed as to any of the political subdivision’s employees. If the General
    Assembly had intended “civil actions” to remove immunity for political-
    subdivision employees, following Zumwalde’s logic, there would be no need to
    refer to “a political subdivision and any of its employees” in Subsection (A).
    {¶ 26} Finally, Zumwalde maintains that public-policy considerations
    weigh in favor of denying immunity to political-subdivision employees named as
    defendants in a civil action arising out of the employment relationship. However,
    our conclusion that R.C. 2744.09(B) is unambiguous prevents us from
    entertaining Zumwalde’s public-policy arguments. Lancaster v. Fairfield Cty.
    Budget Comm. (1998), 
    83 Ohio St. 3d 242
    , 245, 
    699 N.E.2d 473
    .
    Conclusion
    {¶ 27} In a civil action brought by an employee of a political subdivision
    against another employee of the political subdivision arising out of the
    employment relationship, R.C. 2744.09(B) removes immunity only as to the
    political subdivision and does not affect the statutory immunity of the fellow
    employee.
    {¶ 28} Accordingly, we reverse the judgment of the court of appeals
    holding that Ashbrock was not entitled to immunity pursuant to R.C. 2744.09(B).
    This cause is remanded to the court of appeals for further proceedings consistent
    with our decision herein.
    Judgment reversed
    and cause remanded.
    O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
    LANZINGER, and MCGEE BROWN, JJ., concur.
    __________________
    Law Office of Marc Mezibov, Marc D. Mezibov, and Susan M. Lawrence,
    for appellee.
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    SUPREME COURT OF OHIO
    Rendigs, Fry, Kiely & Dennis, L.L.P., Wilson G. Weisenfelder Jr., and
    Laura I. Hillerich, for appellant.
    White & Fish, L.P.A., Inc. and Arnold S. White, urging affirmance for
    amicus curiae Ohio Association for Justice.
    Fortney & Klingshirn and Neil Klingshirn; and the Gittes Law Group and
    Frederick M. Gittes, urging affirmance for amicus curiae Ohio Employment
    Lawyers’ Association.
    Schottenstein, Zox & Dunn Co., L.P.A., Stephen L. Byron, Rebecca K.
    Schaltenbrand, and Stephen J. Smith; and John Gotherman, urging reversal for
    amici curiae Ohio Municipal League, Ohio Township Association, and Ohio Fire
    Chiefs’ Association.
    _______________________
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