Merit Decision: Political Subdivision Supervisor Has Immunity for Employment Discrimination Claim. Hauser v. Dayton Police Dep’t.

On August 28, 2014, the Supreme Court of Ohio handed down a merit decision in Hauser v. Dayton Police Dept.,2014-Ohio-3636. In a 4-3 opinion written by Justice French, the Court held that a political subdivision supervisory employee is immune from liability in an employment discrimination claim brought by a departmental underling. Justice O’Donnell concurred in judgment only. Justice Pfeifer dissented, joined by Justice O’Neill. Justice Kennedy dissented separately. The case was argued December 10, 2013.

Case Background

Anita Hauser worked as a police officer in the Dayton Police Department under the supervision of Major E. Mitchell Davis. Hauser filed a complaint against the Dayton Police Department and Major Davis alleging age and sex discrimination in violation of R.C. Chapter 4112, and Title VII of the federal Civil Rights Act. Hauser alleged that the Department and Davis took various employment actions against her that they did not take against others, such as subjecting her to frivolous investigations and denying her opportunities for advancement.

Procedural Posture

The trial court denied summary judgment on the issue of Davis’ immunity on Hauser’s sex discrimination claim. In a split decision, the Second District Court of Appeals affirmed the decision of the trial court, finding that Davis’ immunity was removed by R.C. 2744.03(A)(6)(c) because civil liability is expressly imposed upon managers or supervisors under R.C. 4112.01(A)(2) for their individual violations of the statute. The dissent would find Davis was entitled to immunity, interpreting the law to mean Hauser’s only claim lies against the city, not a manager or supervisor.

Read the oral argument preview of this case here and the analysis of the argument here.

At the Supreme Court

The case was accepted on certified conflict and discretionary appeal, and the cases were consolidated. The certified question is “whether civil liability is expressly imposed upon managers or supervisors under R.C. 4112.01(A)(2) for their individual violations of R.C. 4112.02(A) so that political subdivision immunity is lifted by R.C. 2744.03(A)(6)(c).”

Short Answer: No. Vote 4-3.

Key Precedent

R.C. 2744.03(A)(6)(c) (provides an exception to immunity for a political subdivision employee if civil liability is expressly imposed upon the employee by a section of the Revised Code.)

R.C. 4112.02(A) (makes it unlawful for any employer to discriminate with respect to hire, tenure, terms, conditions, or privileges of employment on the basis of a person’s sex)

R.C. 4112.01(A)(2) (Defines “employer” to includes the state, any political subdivision of the state… and any person acting directly or indirectly in the interest of an employer.)

Packard Motor Car Co. v. Natl. Labor Relations Bd., 330 U.S. 485 (1947) superseded by statute on other grounds (defining employer in the context of the National Labor Relations Act to incorporate the common law principle of respondeat superior liability.)

Genaro v. Cent. Transport Inc., 84 Ohio St.3d 293 (1999) (a private employer’s supervisor or manager may be held personally liable for violating R.C. Chapter 4112)

Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. 66 Ohio St.2d 192, (1981) (Federal case law interpreting Title VII is generally applicable to cases involving R.C. 4112).

Certified Conflict Case

Campolietiv. Cleveland, 2009-Ohio-5224 (8th Dist.) (a fire chief cannot be held individually liable for an employee’s discrimination claim because the discrimination statute speaks in terms of “employers” and thus liability was not expressly imposed on the fire chief in order to invoke an exception to the immunity statute)

Supreme Court Merit Decision

This is a statutory interpretation case pure and simple.

R.C. 2744.03(A)(6)(c) removes liability from employees of political subdivisions (here a major in the Dayton Police Department) if “civil liability is expressly imposed on the employee by a section of the Revised Code.” The code sections implicated here are R.C. 4112.02(A), which makes employment discrimination on the basis of a person’s sex unlawful, and R.C. 4112.01(A)(2), which defines employer to include “any person acting directly or indirectly in the interest of an employer.”

Definition of Employer

Hauser had argued that since the statutory definition of an employer includes political subdivisions and any person who acts directly or indirectly in the interest of that employer, managers and supervisors are included in this definition. The majority rejected this interpretation.

Justice French traced the Ohio statutory language back to the same language in the 1947 U.S. Supreme Court case Packard Motor Car Co. v. Natl. Labor Relations Bd., in which the phrase “any person acting in the interest of an employer” meant that an employer faced respondeat superior liability for acts of servants of the employer, not individual employee to employee responsibility.

French also cited several other provisions in the Revised Code to show that the General Assembly knows perfectly well how to impose liability expressly on individuals, and did not intend to do so here. She also cites much federal authority, interpreting Title VII by analogy and as persuasive authority to show that an employee’s remedy in that discrimination context is against the employer and not supervisory employees.

Genaro Case

In Genaro v. Cent. Transport, Inc. the Supreme Court of Ohio held foursquare that a private employer’s supervisor or manager may be held personally liable for violating R.C. Chapter 4112. The Hauser majority distinguished Genaro, holding that it involved private-sector supervisors and managers. That was Dayton’s position at oral argument.

Majority Conclusion

“R.C. 4112.01(A)(2) and 4112.02(A) do not expressly impose civil liability on political-subdivision employees so as to trigger the immunity exception in R.C. 2744.03(A)(6)(c). Accordingly, we answer the certified question in the negative and reverse the judgment of the court of appeals.”

Caveat

The majority also threw in a caveat-its holding was limited to provisions dealing with employer discrimination. Individual political subdivision employees can still be found liable under other sections of R.C. 4112.02 that expressly impose liability, such as the aiding-and-abetting provision of R.C. 4112.02(J).

Justice Pfeifer’s Dissent

Justice Pfeifer, joined by Justice O’Neill, would answer the certified question in the affirmative and affirm the appeals court. He made three points.

1. He holds to his longstanding position that any type of sovereign immunity is unconstitutional.
2. The Galatis test, established to decide when precedent-here Genaro- should be overruled is unworkable. (In Westfied Ins. Co. v. Galatis, 2003-Ohio-5849, the Court established a test to determine when existing precedent should be overruled)
3. The statutory definition of employer set forth in R.C. 4112.01(A)(2) includes any person acting directly or indirectly in the interest of an employer. Major Davis clearly was, and fits that statutory definition of employer.

Justice Kennedy’s Dissent

Justice Kennedy finds that 4112.01(A)(2) expressly imposes civil liability for discriminatory acts on both the state and its supervisory employees. She thinks Genaro does too, even though she disagree with it, noting that it is still good law.

Case Syllabus

None. It could have been “R.C. 4112.01(A)(2) and 4112.02(A) do not expressly impose civil liability on political-subdivision employees so as to trigger the immunity exception in R.C. 2744.03(A)(6)(c).”

Concluding Observations

Here is what I wrote after the oral argument:

“This is a hard one, because no justice will want to appear to sanction discrimination involving a supervisor. But I’m going out on a limb and calling this one for the City. I think a majority is going to adopt Chief Justice Moyer’s logic from his dissent in Genaro­- that had the General Assembly wished to extend individual liability to managerial personnel it could have easily included the word “employee” in R.C. 4112.02(A), which makes it unlawful for an employer to discriminate. Both Justices Lanzinger and O’Donnell seemed to favor this position. This view would be more consistent with federal law in this area…The Chief and Justice French also seemed to feel Hauser’s interpretation of the phrase “any person acting directly or indirectly in the interest of an employer” was just too expansive, and would re-define virtually any employee as an employer…. If the Court goes this route, it may just determine Genaro does not apply to political subdivisions, rather than overturning it.”

Well, that is pretty much the way it turned out. I think the majority decision could have been simpler, just by adopting the primary points written by Chief Justice Moyer in his dissent in Genaro, namely that the language “or any person acting directly or indirectly in the interest of the employer” was not meant to impose liability on managers and supervisors, but was instead meant to create vicarious liability for employers whose employees commit violations of the statute.

I found the federal authority interpreting Title VII cited in the majority decision at ¶ 13 more persuasive than the portion of the decision discussing Packard Motor Car Co. v. Natl. Labor Relations Bd.

I also think the majority should have overruled Genaro, rather than finding that it “did not squarely address the immunity question at issue here…”