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

ii

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.

1

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.

2

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

3

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.

4

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

6

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

7

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.

9

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

10

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


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.


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

12

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.


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"

13

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.


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

14

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."


{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.


{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.


{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.


{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:


{¶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."


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


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].


{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.


{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-


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


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.


{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.


{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


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


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


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


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


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


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


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

supreme court of ohio clerk of court apr 14 2009 akron, ohio 44308 (330) 252-8050 (330) 252-8051...

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