“The test under R.C. 2744.09(B) is one of causal connection, not of timing.”
Justice French, Majority Opinion
“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.”
Justice Fischer, Dissenting Opinion
On June 26, 2019, the Supreme Court of Ohio handed down a merit decision in Piazza v. Cuyahoga Cty,Slip Opinion No. 2019-Ohio-2499. In a 4-3 opinion written by Justice French, joined by Chief Justice O’Connor, Justice Donnelly, and Judge Froelich, sitting for the recused Justice Stewart, interpreted R.C. 2744.09 (B) to allow a former county employee to bring a civil action against her political subdivision employer, and also found that her false light claim arose out of the employment relationship. Justice Fischer wrote a dissent, joined by Justices DeWine and Kennedy. The case was argued March 5, 2019.
Marcella Piazza worked as an office manager for the Cuyahoga County Board of Revision (“BOR”) from 2003 until August 2010, when she was transferred to the Department of Justice Affairs. About two months before her transfer, the Plain Dealer Publishing Company (“Plain Dealer”) published a series of extremely unflattering articles about an ongoing investigation into the BOR, its employees, and Board Members.
On March 9, 2011, Piazza and two other former employees of the BOR were fired by the county. In a press release, County Executive Ed FitzGerald announced the terminations and that they were due to the reorganization of the BOR. Piazza was almost immediately called for comment by a Plain Dealer reporter, but she declined. About half an hour later, the Plain Dealer published an online article quoting Fitzgerald and suggesting the firings were related to the mismanagement at the BOR. A second, similar article was published later the same day, this one with a photograph of Piazza, supplied by the county.
In August of 2015, Piazza filed suit for false-light invasion of privacy against the county and the Plain Dealer. The gravamen of her claim was that the statement from FitzGerald falsely implied that she was involved in the BOR corruption scandal, and that statement was made with reckless disregard for its truth. Only the claim against the county is involved in this appeal.
The county moved for summary judgment pursuant to R.C. 2744.02 (A). The county also alleged that Piazza’s claim was time-barred. The trial court denied the county’s motion, finding the false light claim was not time-barred nor covered by immunity.
The county filed an interlocutory appeal on the immunity question, and in a split decision the Eighth District held that the trial court properly rejected the county’s immunity claim, and found that Piazza’s claim arose out of her employment relationship with the county.
Key Statutes and Precedent
R.C. 2744.02(A)(1) (Political Subdivision Immunity) (a political subdivision is not liable for 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. 2744.09(B) (Exceptions to Immunity) (Political Subdivision Immunity shall not extend to civil actions by an employee against his or her political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision.)
R.C. 1.47(C) (When enacting a statute, a just and reasonable result is intended.)
Gessner v. Union, 2004-Ohio-5770 (Termination of employment is a matter that arises out of the employment relationship.)
Fleming v. Ashtabula Area City Schools Board of Education,2008-Ohio-1892 (11th Dist.) (A person need not be a current employee at the time claims were filed against a political subdivision to qualify for the political subdivision immunity exception.)
Sampson v. Cuyahoga Metropolitan Housing Authority, 2010-Ohio-3415 (Intentional tort claims can arise out of the employment relationship with respect to R.C. 2744.09(B). To succeed, a claim must show a causal connection between the tort and the employment relationship. Direct causation is not necessary; indirect causation is sufficient.)
Schmitt v. Cuyahoga Cty. Educational Serv. Ctr., 2012-Ohio-2210 (There is a causal connection between claims stemming from the termination of employment and the employment relationship.)
Friebel v. Visiting Nurse Assn. of Mid-Ohio, 2014-Ohio-4531 (“in the course of” focuses on whether the injury occurred during a required employment duty or activity consistent with the employment contract and logically related to the employer’s business while “arising out of” focuses on the causal connection between the employment and the injury.)
Vacha v. City of North Ridgeville, 2013-Ohio-3020 (To determine whether a causal connection exists the court must examine the totality of the circumstances. If no connection exists, political subdivision immunity is appropriate.)
State v. Taylor, 2014-Ohio-460 (It is the court’s constitutional role to interpret laws enacted by the General Assembly with the primary goal of ascertaining and giving effect to the intent of the legislature.)
County’s Propositions of Law Accepted for Review
Proposition of Law 1
The language of R.C. 2744.09(B) is clear, concise, and unambiguous and in derogation of common law immunity and must be strictly constructed in keeping with the definition of employee and employment relationship as set forth in the Ohio Revised Code.
Proposition of Law 2
A former employee of a political subdivision who brings an intentional tort claim that accrues after he or she is no longer an employee of the governmental entity is not an “employee” covered under R.C. 2744.09(B).
Proposition of Law 3
Construing R.C. 2744.09 as it is written is in keeping with this Court’s decision in Sampson v. Cuyahoga Metro Hous. Auth., 131 Ohio St.3d 418 (2012) and Vacha v. City of N. Ridegeville, 136 Ohio St.3d 199 (2013) in that the intentional tort at issue in Sampson and Vacha accrued while plaintiffs were employed by the political subdivision and arose out of the employment.
Were the County’s Propositions of Law Accepted?
One and two were not; the majority found the cases in the third did not dictate the result in the case.
The county argued that R.C. 2744.09(B) is unambiguous and must be strictly construed in favor of immunity, and that it does not apply when a former political subdivision employee brings an intentional tort claim that accrued when she was no longer employed by the political subdivision because a former employee is not an “employee” under the statute. Therefore her claim does not arise out of the employment relationship. The majority rejects these arguments; the dissent accepts them.
The majority sees the appeal as involving both a legal and a factual question. The legal question is whether R.C. 2744.09(B) requires an ongoing relationship between Piazza and the county, either at the time the claim accrued or when the complaint was filed. The factual question is whether Piazza’s false-light claim arises out of her employment relationship with the county.
Legal Question: Is an ongoing employment relationship required?
No. Just to be clear, the alleged tortious conduct was the statement by FitzGerald, and the county argues that Piazza was no longer an employee when FitzGerald made the statement.
The majority posits that if the General Assembly intended to require that the tortious conduct had to occur during ongoing employment, it would have expressly said so, as it has in other areas of law such as workers compensation (compensable injury must have occurred “in the course of and arising out of employment”). No such language appears in R.C.2744.09(B). The “arising out of” language focuses on the causal relationship between the employment and the injury, not its timing. Nor does the use of the present tense “arises” change this conclusion. Again, when read in the context of the entire statute, “arises” only requires a causal connection between the claim and the employment relationship.
What about Vacha and Sampson?
The county argued that its reading of R.C. 2744.09(B) is consistent with the precedent in Vacha and Samspon because the intentional torts in those cases occurred while the plaintiffs were still employed. The majority finds neither case controls the result here.
Must the Plaintiff have been employed by the county at the time she filed the complaint?
No. Because the statute does not address precisely at what point the employee must have been employed in order to be able to file suit, the statute is ambiguous on that point. The majority rejects the county’s position that R.C.2744.09(B) applies only if the plaintiff was still an employee when the lawsuit was filed, noting that all past precedent has upheld application of the statute to cases filed after a political subdivision employee’s employment has ended.
Avoiding an unreasonable result
The majority concluded that to adopt the county’s interpretation of R.C. 2744.09(B) would reach an unreasonable result, as it would encourage employers to terminate employees whenever any untoward event occurred, to avoid potential liability.
Factual Question: Is the false-light claim “relative to any matter that arises out of the employment relationship?
Yes. The majority finds there is a causal connection between Piazza’s claim and her employment relationship with the county. The statement that forms the basis of Piazza’s false light claim was made at about the same time as her termination. The majority finds that termination of employment is a matter that arises out of the employment relationship. The statement attributed to County Executive FitzGerald was directly related to Piazza’s performance, and her employment with and termination from the county. None of this could have occurred without that employment relationship.
In making this finding, the majority also makes it clear that it offers no opinion of the merits of Piazza’s claim. That remains to be determined at the trial court level.
Bottom Line, Majority Opinion
R.C. 2744.09(B) does not require an ongoing employment relationship, either at the time the plaintiff’s claim accrues or is filed, but there has to be a causal connection between the claim and the plaintiff’s employment relationship, either current or terminated. Piazza may proceed.
The statute is unambiguous, and requires a plaintiff to be an employee of the political subdivision at the time the suit is filed. Because this is a legal determination, no factual issue need be reached.
A former employee is not an employee for the purposes of R.C. 2744.09(B)
Employee is defined in the present tense—one who has existing authority and who is acting within the scope of his or her employment. That means a plaintiff has to be a current employee of the political subdivision when the suit is filed. The General Assembly could have written “by a current or past employee” into the statute, but it didn’t.
What about past precedent?
Justice Fischer concedes that no appellate court in Ohio has taken the position that R.C.2744.09(B) only applies if the plaintiff is still employed at the time suit is filed, but also points out that this exact issue has never been presented in the Ohio high court (including in Vacha) or in any court of appeals but one (Fleming, see precedent) and Fleming lacked statutory analysis.
The dissent interpretation would not lead to an unreasonable result
Unambiguous statutes do not need any statutory construction. But by applying a statutory-construction analysis to R.C. 2744.09(B), the majority invades the role of the General Assembly.
Even if the rules of statutory construction were appropriate here, the consequences of a plain-language application of R.C. 2744.09(B) are not unreasonable. Unreasonable, although not a defined term, means something more than just undesirable. While interpreting R.C. 2744.09(B) to provide immunity to the political subdivision when a former employee files suit may be undesirable to Piazza and other former employees, it is not unreasonable, illogical or unfair. And while encouraging employers to terminate employees when something has occurred to avoid potential liability may be undesirable, other policy considerations such as limiting liability and preserving resources may also come into play. Such policy choices belong to the General Assembly, not the court.
After argument, I wrote that this looked
“Like an outright win for Piazza, whether or not she was still employed at the time the allegedly false statements were made by the County. Either way, her claim arose from her employment relationship with the County and the causal connection was clearly there, too.”
Student contributor Paul Taske went even farther than I did, writing
“This is perhaps one of the most lopsided arguments I have ever seen in terms of engagement from the bench. This case seems like a clear win for Piazza. I would be unsurprised if the decision unanimously affirms the lower court.”
As it turned out, while Piazza did prevail, it was very close. But here’s the thing. Justice Stewart had to recuse herself because she was one of the judges in the court of appeals case. But she was the dissenter in the Eighth District’s decision in this case. Here is the concluding paragraph from her dissent:
“Piazza was not an employee at the time the county executive’s statements were made, so the statements did not arise out of an employment relationship between an employee and a political subdivision for purposes of R.C. 2744.09(B). I would disapprove Fleming and find, as a matter of law, that the county is immune from the false light invasion of privacy action.”
That, and other parts of what she wrote, sounds a lot like Justice Fischer’s dissent. So, had Stewart not been on the appellate panel, and not had to recuse herself from this case because she was, the decision would have gone the other way.
One more thing. The blog will be very interested to see what happens to this case on remand. As a torts professor, I found false light invasion of privacy to be a very interesting tort, and this appears to be a very good example of a tort that is often hard to find good examples of. I’m surprised more lawyers don’t try it, as it is easier to prove than defamation.