# Carroll v. Cuyahoga Community College

> Ohio Court of Appeals · October 5, 2023 · 226 N.E.3d 423

URL: https://www.frixlaw.com/law-library/cases/9882719

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** October 5, 2023
- **Citations:** 226 N.E.3d 423; 2023 Ohio 3628
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Groves
- **Cited by:** 5 later opinions in the Frix Law Library

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## Opinion text

[Cite as Carroll v. Cuyahoga Community College, 2023-Ohio-3628.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

ROY M. CARROLL :

Plaintiff-Appellee, :
No. 112257
v. :

CUYAHOGA COMMUNITY
COLLEGE, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED
RELEASED AND JOURNALIZED: October 5, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-21-947925

Appearances:

Stephen M. McGowan, for appellee.

David Yost, Ohio Attorney General, Holly E. LeClair
Welch and Erin F. Kelly, Assistant Attorneys General, for
appellants.

EMANUELLA D. GROVES, J.:

Defendants-appellants Cuyahoga Community College (“Tri-C”) and

its employees appeal the denial of their motion to dismiss plaintiff-appellee Roy
Carroll’s (“Carroll”) complaint for failure to state a claim upon which relief can be

granted. For the reasons that follow we affirm in part, reverse in part, and remand.

Procedural History and Factual Background

In 2013, Carroll suffered an injury that impaired his ability to work.

He developed additional mental and physical issues subsequently, leading to

steadily declining health. In 2017, Carroll sought assistance from Ohioans with

Disabilities (“OWD”), which referred him to MetroHealth Hospital’s Vocational

Rehabilitation Program. After testing and evaluations, Metro and OWD

recommended that Carroll go back to school. Carroll then enrolled to take courses

for the fall semester at Tri-C. Carroll met with the student advisor for the Access

Department (the “advisor”), which provided support to students with disabilities.

As a result, Carroll received special accommodations to support his studies at Tri-C

as a student with disabilities. These accommodations were delineated in a letter (the

“Access letter”).

By 2019, Carroll had completed several classes and done very well at

college. He was on the dean’s list and invited to join a national honor’s society. In

July 2019, Carroll enrolled in a five-week condensed course at Tri-C titled “Religion

1010, Introduction to Religious Studies.” During the pendency of the course, Carroll

found that the professor was unwilling to abide by the terms of the Access letter.

Carroll attempted to address this issue with her and ultimately with the staff of the

Access Department. Per Carroll, he was eventually told that his rights had not been

violated.
The professor did comply with the Access letter for the final

examination and provided Carroll’s disability accommodations. However, Carroll

received an overall grade of “C” for the class.

Carroll was concerned with the way the Access Department and the

professor acted and addressed his concerns with his advisor. Per Carroll, the advisor

discouraged him from proceeding with further action. Carroll and his advisor had

further discussions in which Carroll alleged the advisor described the professor as

difficult. He also offered to go over Carroll’s course list and point out professors who

were unlikely to honor the Access letter.

On August 6, 2019, Carroll received a letter from the Student Affairs

Department. The letter asked Carroll to meet with that department and noted that

failure to do so might lead to the university banning Carroll from enrolling in classes.

Carroll did not attach a copy of the letter to his complaint. Carroll reached out to

that department and the Access Department for more information. Per Carroll, he

was told the letter and meeting were intended to assess how Carroll was doing at the

school and if he needed any assistance. Carroll later learned that the professor had

filed a complaint against him alleging “academic inconsistencies.”

After additional exchanges, Carroll obtained counsel and filed a

complaint with the Ohio Civil Rights Commission (“OCRC”) on October 2, 2019. On

May 21, 2020, Carrol was notified that Tri-C and OCRC entered into a “2-Party

Conciliation Agreement and Consent Order.”
On May 25, 2021, Carroll filed a complaint in the trial court against

Tri-C, and its employees, including the professor, his advisor, other employees of

the Access Department, Student Affairs Department, and Tri-C’s representative

before the OCRC. His amended complaint, filed on August 12, 2021, alleged: (1)

disability discrimination in higher education (Count 1); (2) retaliation while engaged

in a protected activity (Count 2); (3) harassment while engaged in a protected

activity (Count 3); (4) intimidation while engaged in a protected activity (Count 4);

and (5) intentional infliction of emotional distress while engaged in a protected

activity (Count 5).

On September 3, 2021, Tri-C filed a motion to dismiss the amended

complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief

could be granted. Relevant to this appeal, Tri-C alleged that it and its employees

acting in their official capacities were immune from suit under R.C. Chapter 2744

for all claims.

Tri-C alleged that it was a political subdivision entitled to immunity.

Tri-C argued that Carroll’s complaint failed to mention R.C. Chapter 2744 or raise

allegations that would establish one of the exceptions to immunity in R.C.

2744.02(B)(1) through (5). Tri-C also alleged that it could not be found liable for the

intentional torts of intentional infliction of emotional distress and retaliation.

With respect to the individual employees who were subject to the

lawsuit, Tri-C alleged that they were sued in their official capacities, and not as
individuals. As such, employees acting in their official capacity are the same as the

entity and, for the purposes of immunity analysis, entitled to the same immunity.

The trial court denied the motion, and Tri-C and its employees

appealed assigning the following error for our review.

Assignment of Error

The trial court erred in denying appellants’ motion to dismiss, thereby
denying appellants their right to political subdivision immunity under
R.C. 2744 against all of appellee’s claims.

Jurisdiction

Ordinarily the denial of a motion to dismiss would not be a final

appealable order. However, when a trial court order denies a political subdivision

or its employees the benefit of political subdivision immunity under R.C. Chapter

2744 that denial is a final appealable order. Gates v. Leonbruno, 2016-Ohio-5627,

70 N.E.3d 1110, ¶ 30 (8th Dist.); R.C. 2744.02(C). Accordingly, although the

appellants’ motion to dismiss addressed other issues, we confine our analysis to

determine whether the court erred in denying appellants’ political subdivision

immunity. Id.

Standard of Review – Denial of Motion to Dismiss Civ.R. 12(B)(6)

An appellate court reviews a ruling on a motion to dismiss pursuant

to Civ.R. 12(B)(6) under the de novo standard. NorthPoint Props. v. Petticord, 179

Ohio App.3d 342, 2008-Ohio-5996, 901 N.E.2d 869, ¶ 11 (8th Dist.). De novo

review requires this court to use the same standard as the trial court to determine

whether genuine issues exist for trial. Northeast Ohio Apt. Assn. v. Cuyahoga Cty.
Bd. of Cty. Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th Dist.1997).

Such a motion “is procedural and tests the sufficiency of the complaint.” NorthPoint

Props. at ¶ 11.

In reviewing the complaint, “we must accept all factual allegations of

the complaint as true and all reasonable inferences must be drawn in favor of the

nonmoving party.” Id., citing Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584

(1991). A trial court may grant a motion to dismiss under Civ.R. 12(B)(6) if it appears

“beyond doubt from the complaint that the plaintiff can prove no set of facts entitling

her to relief.” Graham v. Lakewood, 2018-Ohio-1850, 113 N.E.3d 44, ¶ 47 (8th

Dist.), quoting Grey v. Walgreen Co., 197 Ohio App.3d 418, 2011-Ohio-6167, 967

N.E.2d 1249, ¶ 3 (8th Dist.). We may only consider the four corners of the complaint

and any documents properly incorporated within the complaint. Katz v. Univ.

Hosps. Health Sys., 8th Dist. Cuyahoga No. 111164, 2022-Ohio-3328, ¶ 12.

If there is a set of facts that would allow the plaintiff to recover, the

court may not grant a defendant’s motion to dismiss under this rule. Id. at ¶ 13,

citing Woods v. Sharkin, 2022-Ohio-1949, 192 N.E.3d 1174, ¶ 29 (8th Dist.).

Specificity of the Complaint

Tri-C begins its challenge by noting that the complaint fails to

mention R.C. 2744.02 at all or expressly address immunity or a waiver of immunity

under R.C. 2744.02(B)(1) through (5). Tri-C alleges that the plaintiff has the burden

of establishing that a political subdivision is not entitled to immunity. However,

Ohio courts have not required this level of specificity at the pleading stage. Ohio is
a notice-pleading state that does not require a plaintiff to plead operative facts with

particularity. Granite City Ctr., LLC v. Bd. of Trustees, 11th Dist. Trumbull No.

2020-T-0083, 2021-Ohio-1458, ¶ 21 citing Cincinnati v. Beretta U.S.A. Corp., 95

Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 29. Notice pleading requires

the plaintiff to set forth claims that “concisely set forth only those operative facts

sufficient to give ‘fair notice of the nature of the action[.]’” Diaz v. Cuyahoga Metro.

Hous. Auth., 8th Dist. Cuyahoga No. 92907, 2010-Ohio-13, ¶ 15 quoting DeVore v.

Mut. of Omaha Ins. Co., 7th Dist. Mahoning No. 5116, 1972 Ohio App. LEXIS 350

(Apr. 4, 1972).

In the case of political subdivision immunity, this court has noted that

“‘a plaintiff need not affirmatively dispose of the immunity question altogether at

the pleading stage.’” Para v. Jackson, 2021-Ohio-1188, 171 N.E.3d 452, ¶ 28 (8th

Dist.), quoting Scott v. Columbus Dept. of Pub. Utils., 192 Ohio App.3d 465, 2011-

Ohio-677, 949 N.E.2d 552, ¶ 8 (10th Dist.). The plaintiff “‘has no obligation to

anticipate the assertion of an affirmative defense and allege facts to disprove that

defense in its complaint.’” Id., quoting DSS Servs., L.L.C. v. Eitel’s Towing, L.L.C.,

10th Dist. Franklin No. 18AP-567, 2019-Ohio-3158, ¶ 10.

With this framework in mind, we examine Carroll’s complaint to see

whether it alleges facts that would survive a political subdivision’s claims of

immunity.
Analysis

The determination of whether a political subdivision is entitled to

immunity under R.C. Chapter 2744 requires a three-tiered analysis. Duncan v.

Cuyahoga Community College, 2012-Ohio-1949, 970 N.E.2d 1092, ¶ 18 (8th Dist.).

A political subdivision is not liable for “damages in a civil action for injury, death or

loss to person or property allegedly caused by an act or omission of the political

subdivision or an employee of the political subdivision in connection with a

governmental or propriety function”; except as provided in R.C. 2744.02(B). Id.;

R.C. 2744.02(A)(1).

The first tier acknowledges “the general rule that a political

subdivision is immune from liability incurred in performing either a governmental

function or proprietary function.” Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-

Ohio-3319, 790 N.E.2d 781, ¶ 7.

However, there are exceptions. In the second tier, the court must

determine whether one of the five exceptions to immunity listed in R.C. 2744.02(B)

apply, exposing the political subdivision to liability. Id. at ¶ 8.

Finally, in the third tier, if one of the exceptions is found to apply and

no defense in that section protects the political subdivision from immunity, the court

must then determine whether any of the defenses to liability delineated in

R.C. 2744.03 apply to provide a defense to the political subdivision against liability.

Id. at ¶ 9.
As this court has noted before, R.C. 3354.01(A) defines a community

college district as a political subdivision of the state. Accordingly, under the first

tier, Tri-C is entitled to blanket immunity. (See Scott v. Dennis, 8th Dist. Cuyahoga

No. 94685, 2011-Ohio-12; Duncan, 2012-Ohio-1949, both finding that Tri-C is a

political subdivision entitled to immunity under R.C. 2744.02).

Political subdivision immunity covers both the governmental

functions and proprietary functions of the political subdivision. R.C. 2744.02. One

such governmental function is “[t]he provision of a system of public education.”

R.C. 2744.01(C)(2)(c). The phrase “system of public education” is not defined in

R.C. Chapter 2744. Nevertheless, Ohio federal courts have found that the provision

of higher education qualifies as a governmental function. Hutsell v. Sayre, 5 F.3d

996, 1002 (6th Cir.1993) [“H]igher education has long been recognized as a

governmental function.”); Dvorak v. Wright State Univ., S.D.Ohio Case No. C-3-

96-109, 1997 U.S. Dist. LEXIS 23804, at ¶ 21 (Sept. 2, 1997) (“[T]he provision of

higher education is a governmental, rather than a proprietary, function.”).

Based on the foregoing, we analyze the exceptions to political

subdivision as applied to a governmental function. The exceptions under

R.C. 2744.02(B) are as follows:

(1) [P]olitical subdivisions are liable for injury, death, or loss to person
or property caused by the negligent operation of any motor vehicle by
their employees when the employees are engaged within the scope of
their employment and authority.

(2) [P]olitical subdivisions are liable for injury, death, or loss to person
or property caused by the negligent performance of acts by their
employees with respect to proprietary functions of the political
subdivisions.

(3) [P]olitical subdivisions are liable for injury, death, or loss to person
or property caused by their negligent failure to keep public roads in
repair * * *.

(4) [P]olitical subdivisions are liable for injury, death, or loss to person
or property that is caused by the negligence of their employees and that
occurs within or on the grounds of and is due to physical defects within
or on the grounds of, buildings that are used in connection with the
performance of a governmental function * * *.

(5) In addition to the circumstances described in divisions (B)(1) to (4)
of this section, a political subdivision is liable for injury, death, or loss
to person or property when civil liability is expressly imposed upon the
political subdivision by a section of the Revised Code * * *. Civil liability
shall not be construed to exist under another section of the Revised
Code merely because that section imposes a responsibility or
mandatory duty upon a political subdivision, because that section
provides for a criminal penalty, because of a general authorization in
that section that a political subdivision may sue and be sued, or because
that section uses the term “shall” in a provision pertaining to a political
subdivision.

R.C. 2744.02(B)(1) through (4) are clearly inapplicable to the facts of

this case. Therefore, unless a section of the revised code “expressly” imposes civil

liability against the political subdivision, Tri-C is entitled to immunity.

R.C. 2744.02(B)(5). Courts have defined “expressly” as used in R.C. 2744.02(B)(5)

to mean that the statute imposes liability “in an express manner: explicitly,

definitely, directly.” Doe v. Adkins, 2021-Ohio-3389, 178 N.E.3d 947, ¶ 61 (4th

Dist.); quoting Butler v. Jordan, 92 Ohio St.3d 354, 357, 750 N.E.2d 554, 558

(2001).

The Doe Court noted that where a statute uses a general term and

defines that term such that it includes a political subdivision the statute expressly
imposes liability on that political subdivision. See Cramer v. Auglaize Acres, 113

Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 21-28, quoting R.C. 3721.17(I)(1)

and 3721.10(A)(3) (statute imposing liability on “any * * * home” expressly imposed

liability on political subdivision when statutory definition of “home” included “‘[a]

county home or district home’”); accord Bonkoski v. Lorain Cty., 2018-Ohio-2540,

115 N.E.3d 859, ¶ 9 (9th Dist.). Id.

In contrast, where a statute uses a general term, such as landlord, that

statute does not include a political subdivision or its employees merely because the

political subdivision functions as a landlord. Doe at ¶ 61, citing Moore v. Lorain

Metro. Hous. Auth., 121 Ohio St.3d 455, 2009-Ohio-1250, 905 N.E.2d 606, ¶ 21

(statute imposing liability upon landlords as a general matter did not expressly

impose liability upon political subdivision that provided public housing); O’ Toole v.

Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 67 (statute that

imposed liability upon a “person” without mentioning political subdivisions did not

expressly impose immunity under R.C. 2744.02(B)(5)).

Turning to the facts of this case, Carroll alleged with supporting facts

in his amended complaint that Tri-C’s conduct violated R.C. Chapter 4112. Under

that chapter, it is “an unlawful discriminatory practice for any educational

institution to discriminate against any individual on account of any disability.”

R.C. 4112.022.
An “educational institution” includes a “state-assisted institution of

higher education.” Id. R.C. Chapter 4112 does not define “state-assisted institutions

of higher learning”; however, R.C. 154.01 defines the term to include

the state universities identified in section 3345.011 of the revised code,
* * *, community college districts, * * * and other institutions for
education, including technical education, beyond the high school,
receiving state support or assistance for their expenses or operation.

R.C. 154.01(F).

Accordingly, Tri-C is an “educational institution” under

R.C. 4112.022.

Civil liability is a remedy under R.C. Chapter 4112 against “whoever”

violates the chapter. R.C. 4112.99. The remedies include “a civil action for damages,

injunctive relief, or any other appropriate relief.” Id. Anyone may file a charge with

the OCRC claiming that another “person” is engaging in an “unlawful discriminatory

practice.” R.C. 4112.05(B)(1). An “unlawful discriminatory practice” is “any act

prohibited by section 4112.02, 4112.021, or 4112.022 of the Revised Code.”

R.C. 4112.01(A)(8). A “person” is defined as, but not limited to, “the state and all

political subdivisions, authorities, agencies, boards, and commissions of the state.”

R.C. 4112.01(A)(1). R.C. 4112.05 provides an administrative process that includes in

its remedies alternative dispute resolution strategies, such as a conciliation

agreement.1 The statute does not prohibit a complainant from seeking civil

1 “The commission may at any time attempt to resolve allegations of unlawful

discriminatory practices other than allegations concerning unlawful discriminatory
practices relating to employment by the use of alternative dispute resolution, provided
remedies. Accordingly, because a “person” includes a political subdivision, R.C.

4112.99 expressly imposes civil liability against a political subdivision.

Tri-C argues that there is no statute that imposes civil liability that

applies to this case and cites to Johnson v. Washington Cty. Career Ctr., S.D.Ohio

No. 2:10-CV-076, 2012 U.S. Dist. LEXIS 32206 (Mar. 12, 2012). Johnson is

distinguishable. While that court found that R.C. 4112.022 did not expressly impose

civil liability against a political subdivision, the court also declined the plaintiff’s

request that it examine the definitional statutes. Based on the applicable case law,

Ohio courts have recognized that R.C. 2744.02(B)(5) applies when the definition of

a term includes a political subdivision and civil liability is expressly imposed. We

therefore conclude that Carroll’s complaint alleges sufficient facts to support a

finding that the exception under R.C. 2744.02(B)(5) could apply to remove Tri-C’s

blanket immunity.

Under the third tier, we look to determine whether any defenses or

immunities are reinstated pursuant to R.C. 2744.03. In viewing that section, only

R.C. 2744.03(A)(3) and (5) could apply to the facts of this case, which provide as

follows:

(A) In a civil action brought against a political subdivision or an
employee of a political subdivision to recover damages for injury,
death, or loss to person or property allegedly caused by any act or
omission in connection with a governmental or proprietary function,

that, before instituting the formal hearing authorized by division (B) of this section, it
shall attempt, by informal methods of conference, conciliation, and persuasion, to induce
compliance with this chapter.” R.C. 4112.05(A)(2).
the following defenses or immunities may be asserted to establish
nonliability:

***
(3) The political subdivision is immune from liability if the action or
failure to act by the employee involved that gave rise to the claim of
liability was within the discretion of the employee with respect to
policy-making, planning, or enforcement powers by virtue of the duties
and responsibilities of the office or position of the employee.

***
(5) The political subdivision is immune from liability if the injury,
death, or loss to person or property resulted from the exercise of
judgment or discretion in determining whether to acquire, or how to
use, equipment, supplies, materials, personnel, facilities, and other
resources unless the judgment or discretion was exercised with
malicious purpose, in bad faith, or in a wanton or reckless manner.

Whether a defense under R.C. 2744.03(A)(3) or (5) apply in this

matter goes beyond the four corners of the complaint because it requires a factual

determination whether it was within the professor’s discretion to deny disability

accommodations to Carroll after he received an accommodation from the college, or

whether an employee’s conduct is manifestly outside the scope of employment;

malicious, in bad faith, or done with wanton or reckless disregard. When reviewing

a dismissal under Civ.R. 12(B)(6), if there is any set of facts under which the plaintiff

can prevail, the motion must be denied. Katz at ¶ 13. Accordingly, because we have

found that Carroll has sufficiently pleaded that an exception applies to Tri-C’s

blanket immunity, the trial court’s decision denying Tri-C’s Civ.R. 12(B)(6) motion

to dismiss causes of action for disability discrimination (Count 1); harassment

(Count 3); and intimidation (Count 4), is affirmed.
Intentional Tort Claims

Finally, we examine Carroll’s intentional tort claims. None of the

exceptions to immunity in R.C. 2744.02(B) apply to intentional torts. Accordingly,

it is well settled that a political subdivision is immune from intentional tort claims.

Fried v. Friends of Breakthrough Schools, 8th Dist. Cuyahoga No. 108766, 2020-

Ohio-4215, ¶ 23. Retaliation and intentional infliction of emotional distress are

intentional torts for which Tri-C is immune from liability. Accordingly, the trial

court erred when it denied the motion to dismiss as to those two counts.

Accordingly, based on the forgoing, the trial court’s judgment is

affirmed in part and reversed in part to dismiss the intentional tort claims against

Tri-C and the employees in their official capacities.

Judgment affirmed in part, reversed in part, and remanded for

proceedings consistent with this opinion.

It is ordered that appellee and appellants split the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EMANUELLA D. GROVES, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
MICHAEL JOHN RYAN, J., CONCUR

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9882719. Public record. Not legal advice.