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Hauser v. City of Dayton: The Ohio Supreme Court Revisits Personal Liability for Supervisors

Personal liability is always a concern for law enforcement personnel.  In addition to causes of action at common law, plaintiffs enjoy the protections of a myriad of state and federal statutes upon which claims can be made against political subdivisions and/or its employees.  While such suits that are brought against law enforcement personnel are typically brought by outside citizens, they can pit officer against officer.  In Hauser v. City of Dayton Police Dep’t, 2014 Ohio 3636, 2014 Ohio Lexis 2040 (2014), the Ohio Supreme Court addressed the issue of personal liability for managers and supervisors of political subdivisions upon claims made under R.C. 4112.02(A) of the state’s statute against employment discrimination. This section generally prohibits employers from discriminating against persons with respect to any matter related to employment. By a vote of four to three, the Court distinguished past precedent and held that managers and supervisors of political subdivisions are not subject to personal liability under such section.

The issue of personal liability for managers and supervisors under R.C. 4112.02(A) was previously addressed by the Ohio Supreme Court in the case of Genaro v. Central Transport, Inc. et al, 84 Ohio St. 3d 293, 703 N.E.2d 782 (1999).  In that case, arising out of the private sector, the Court held that supervisors and managers may, in fact, be held personally liable for unlawful discriminatory acts committed by them in violation of R.C. Chapter 4112.  The Court reasoned that such holding follows from the broad definitions of “employer” and “person” under the act.  The term "employer" under R.C. 4112.01(A)(2) is defined as "any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of an employer." Further, a "person" under the act is defined by R.C. 4112.01(A)(1) as including "one or more individuals, * * * any owner, lessor, assignor, * * * agent, [and] employee." The Court also reasoned that such result follows from consideration of R.C. 4112.08, which mandates that “this chapter [4112] shall be construed liberally for the accomplishment of its purposes * * *.”

The Hauser case involves a claim of a Dayton police officer, Anita Hauser, against her department and Major E. Mitchell Davis.  Among other claims, Hauser averred that the department and Davis discriminated against her on the basis of age and sex in violation of R.C. 4112.02(A).  Specifically, Hauser alleged that the department and Davis took employment actions against her that they did not take against those who were not in her statutorily protected class by imposing certain employment conditions, withholding her wages, subjecting her to “frivolous” investigations, and denying her opportunities for career advancement.

At the trial and appellate court, Davis argued that he was entitled to summary judgment on the state discrimination claim on the basis of immunity.  R.C. 2744.03(A)(6) provides that an employee of a political subdivision is immune from tort liability with three exceptions.  At issue in Hauser is the R.C. 2744.03(A)(6)(c) exception, which removes immunity if “[c]ivil liability is expressly imposed upon the employee by a section of the Revised Code.”  Citing Genaro and relying on such exception to immunity, the Second District concluded that “civil liability is expressly imposed upon managers or supervisors, such as Davis, under R.C.  4112.01(A)(2) for their individual violations of R.C. 4112.02(A).”  Hauser v. City of Dayton Police Dep’t., 2013-Ohio-11, 986 N.E.2d 523, ¶28 (2d Dist.).

The Ohio Supreme Court reversed the Second District by vote of four to three.  Writing for the plurality, Justice French analogized the definition of employer in R.C. 4112.01 with the United States Supreme Court’s construction of the definition of employer under the National Labor Relations Act in Packard Motor Car Co v. Natl. Labor Relations Bd., 330 U.S. 485, 488, 67 St. Ct. 789, 91 L.Ed. 1040 (1947).  In Packard, the Court explained that the definition of employer under the NLRA was to incorporate ‘the ancient maxim of the common law, respondeat superior, by which a principal is made liable for the tortious acts of his agent and the master for the wrongful acts of his servants.” Id. Since Ohio’s definition of employer is similar to that of the NLRA and respondeat superior liability does not simultaneously create an express cause of action against individual agents and employees of the employer, Justice French reasoned that R.C. 4112.01(A)(2) cannot be read to expressly impose liability on political subdivision employees.  The decision also noted that this construction of R.C. 4112.01(A)(2) comported with almost every federal circuit in their interpretation of employer in the context of Title VII cases.

The dissenters argued that the Second District’s judgment should have been sustained by the broad definition of employer and the Court’s holding in Genaro. The plurality opinion acknowledges that it calls the Genaro majority’s reasoning into question, but distinguishes Genaro on the basis that Genaro did not squarely address the immunity exception in R.C. 2744.03(A)(6)(c), as such immunity does not apply to employees in the private sector.  Further, the plurality opinion by dicta acknowledges that personal liability can apply to managers and supervisors under other sections of the law such as those that specify it unlawful for “any person” to aid or abet an unlawful discriminatory action.  See e.g., R.C. 4117.02(J).  For the dissenters, this is a distinction without a difference.

While it might seem evident that an employee is not an employer and therefore not subject to personal liability under the sections at issue in Hauser, the statute’s broad definition of employer clouded this question to the extent that a multitude of cases and years and years of litigation were necessary to find the answer.  At the end of this road, the two decisions that survive, Genaro and Hauser, seemingly stand at odds with each other.  The potential for personal liability, as evidenced by these cases, highlights the importance of a political subdivision’s separate duty under Ohio law to defend and indemnify its employees.  While there are limitations to such duty, it provides needed security for employees in an unpredictable and potentially costly legal landscape.

 

 

 

 

Workers’ Compensation and On-duty Illness/Injury Leave

Most OPBA collective bargaining agreements have a negotiated provision that allows employees who are injured on the job or in the line of duty and are unable to work to continue on their employer’s payroll and benefits for a limited period of time.  These provisions may be known as “On-duty Illness/Injury Leave,” “Injury On-Duty Leave,” “Wage Continuation” or some other title (referred to as IOD in this article) depending on each group’s CBA.  I frequently receive questions from employees who are injured on the job about their rights.  There is typically confusion about how these provisions work and what happens when they end.  Of course, each employee’s potential benefits depend exclusively on the negotiated language and specific terms in their CBA.  There are no civil service rules or state laws that require employers to continue your pay and benefits if you are injured on the job and unable to work (although employees may receive FMLA leave and may substitute their approved leaves of absence to receive pay).  Employees must follow the specific guidelines of the CBA to qualify for IOD.

As a backdrop to the discussion of “IOD” provisions, employees should know that Ohio has a statutory insurance policy for injured workers called the Bureau of Workers’ Compensation (BWC)[1].  The BWC is a complex system made up of employers, managed care organizations (MCO), insurance companies, a State board and State bureaucracies, which will not be fully analyzed here.  But it is important to know the basics to understand the interplay between the BWC and IOD provisions.  Any employee injured at work, no matter how seemingly minor or whether life threatening, should file a claim for coverage under the BWC.  Not all injuries will qualify and not all injury claims will receive coverage, but employees should document the injuries and apply.

According to the BWC, “within 28 days from the date your initial claim for benefits is filed, BWC will decide to allow or deny it.  By re­sponding to any inquiries from your MCO or BWC, you will quicken the de­cision-making process and the receipt of benefits. If you or your employer disagrees with our decision, either party can file an appeal with the Industrial Commission within 14 days.  If [the BWC] allows your claim and you cannot return to work for eight or more days, [BWC] will pay a percentage of the wag­es you lose as a result of the allowed work-related injury.”  In addition, the BWC will pay the medical claims as a result of the approved injury.  So in the absence of an IOD provision in the CBA or if the IOD claim is denied by the employer, employees still have a statutory right to receive compensation for lost wages as a result of a BWC approved work-related injury.

An IOD claim is a separate right defined by the CBA and may require different qualifications than the BWC claim.  Many employers will continue employees on their usual payroll system as a result of an on-duty injury which results in the employee being unable to continue to work.  Employers will provide benefits for a limited period of time in order to avoid having to make claims against the BWC.  The employer’s premiums or cost of paying into BWC will increase with each claim filed and the amount of each claim.  For employees that sustain injuries for which they are likely to return to work within 60 or 90 days or less, it may be more cost effective for the employer to continue to pay the employee rather than require that employee to go on the BWC wage benefits.  This is the reason why most IOD provisions have a limited period of coverage, usually 30 to 180 days.

Employees must read the IOD provision carefully to determine what is covered and what is not and when the employee must notify the employer of the claim.  There may be a notice provision that requires the employee to notify the employer within so many hours or days of the injury and to describe the circumstances of the incident and the nature of the injury.  Employees may be required to fill out a specific form.  Failure to follow the CBA requirements may disqualify the employee from receiving IOD benefits.  Also, some IOD provisions only cover “high risk” injuries, such as a result of an apprehension, training, motor vehicle accident with lights and sirens, or other injury sustained while performing law enforcement functions.  These provisions may exclude non-law enforcement injuries such as a trip and fall, routine driving incidents, or simple mishaps.  Further, some only provide wage continuation if the injury results in the employee being off-duty for more than 3, 5 or 7 days, otherwise the employee will simply use sick leave.  Almost all require that the injury be approved through the BWC process even if the employee is not seeking BWC wage benefits.  The employer may deny IOD benefits depending on the coverage provision and the circumstances of each case; however, the employee may file a grievance to contest the denial of the IOD coverage.  Obviously, employees who have claims denied through the BWC will be required to file an appeal through the BWC process.

In any event that you do not have IOD benefits or the employer has denied IOD coverage or your covered period has elapsed, employees are always entitled to approved claims through the BWC. Even for severe, life-threatening or debilitating injuries, employees may receive the IOD benefits for the covered period and then will transition onto the BWC temporary or permanent total plan or seek disability benefits through their respective pension plan.  An IOD provision is an additional negotiated benefit, not a substitute for the BWC process.  Hopefully, an employee will be able to return to full duty within the covered period in order to avoid going off their employer’s payroll.  However, even for non-covered claims or for long term illness/injuries that will extend beyond the IOD period, employees should consult with their BWC or disability attorney to seek options for work-related injuries.

 



[1] The OPBA does not provide legal representation for BWC claims.

 

Knowing the Stakes of Protective Sweeps

Recently, a defendant in one of our cases escaped drug and weapon related felony charges because of an improperly performed protective sweep. Police, responding to an anonymous emergency call involving a domestic dispute, performed a routine protective sweep and found a bag of cocaine and a gun on the bedroom floor. The officer believed that a protective sweep could be executed upon entering a home. However, the law requires more.

In order to legally perform a protective sweep, an officer must have an articulable suspicion or reasonable belief that there is someone in other rooms of the house who poses a danger to those on the arrest scene. The officer in the case above thought that he was able to perform a protective sweep at any time and stated that he always conducted them upon entering a home. This officer could not provide a specific reason for his suspicion that someone else was in the home. The officer said that he is often lied to when he asks about others in the home. That is not a solid enough reason for the sweep to hold up in court.

To avoid a situation like the one above, you should always begin by asking to search the home. If they say no, you still may search if you have a reasonable belief that there is someone else in the house that gives you reason to be concerned for your safety. Just because you hear a noise or even are advised that there is some other occupant in another room does not mean you can search there. It is important that you have some reasonable belief that a known or possible other occupant is a risk to your safety. The officer in the above case needed some reasonable suspicion in order to search, which he did not have.

The duties of a police officer can be stressful and demanding, especially when dealing with hardened criminals in high drug traffic areas. An added difficulty is having to comply with numerous, often complex, laws. Remember that you are only allowed to make a protective sweep when you have an articulable, reasonable suspicion of danger or you might watch the defendant walk free.

This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.

Sherri Bevan Walsh

Summit County Prosecuting Attorney

 

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Law Enforcement Bulletin October 2014

Ohio Attorney General's Law Enforcement Bulletin

October 2014

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