The opinion
[Cite as Reynolds v. Hamilton Cty. Dev. Disabilities Servs., 2024-Ohio-83.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JAMES REYNOLDS, : APPEAL NO. C-230046
TRIAL NO. A-1905513
Plaintiff-Appellee, :
vs. : O P I N I O N.
HAMILTON COUNTY :
DEVELOPMENTAL DISABILITIES
SERVICES, :
ALICE PAVEY, Individually and in her :
official capacity as Superintendent,
:
SHAWN GARVER, Individually and in
his official capacity as Human :
Resources Director,
:
JENNIE R. FLOWERS, Individually
and in her official capacity as MUI :
Director,
:
HANS VAN RHEENAN, Individually
and in his official capacity as Service :
and Supports Administrator,
:
KELLEY TEKESTE, Individually and in
her official capacity as Behavior :
Specialist,
:
ERIC A. METZGER, Individually and
in his official capacity as Integration :
and Advocacy,
:
CHRIS MURPHY, Individually and in
his official capacity as MUI :
Investigator,
:
and
:
DAWN FREUDENBERG, Individually
and in her official capacity as :
OHIO FIRST DISTRICT COURT OF APPEALS
Innovation and Quality,
Defendants-Appellants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: January 12, 2024
Gatlin Voelker, PLLC, and Anthony Bucher, for Plainitff-Appellee,
Schroeder, Maundrill, Barbiere & Powers, Scott A. Sollman and Kurt Irey, for
Defendants-Appellants.
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WINKLER, Judge.
{¶1} Plaintiff-appellee James Reynolds filed a complaint alleging wrongful
discharge, defamation, and violations of R.C. 4112.02 against defendants-appellants,
Hamilton County Developmental Disabilities Services (“HCDDS”), Alice Pavey, Shawn
Garver, Jennie R. Flowers, Hans Von Rheenan, Kelley Tekeste, Eric Metzger, Chris
Murphy, and Dawn Freudenberg in both their individual and official capacities.
Appellants filed a motion for summary judgment in which they asserted a defense of
immunity under R.C. Chapter 2744 and 5123.61(K).
{¶2} The trial court denied the motion for summary judgment. It found that
genuine issues of material fact existed regarding “whether Reynolds was a common
law employee of HCDDS and/or whether HCDDS was a co-employer of Reynolds. All
of Plaintiff’s claims with the exception of the defamation claim, depend on the
determination of the foregoing.” As to the defamation claim, it stated that “this claim
would survive this Motion regardless, as there are issues of material fact that must be
determined at trial.” The court also stated that “[t]here is no just reason for delay”
under Civ.R. 54(B). This appeal followed.
I. Factual Background
{¶3} This case involves agencies providing supported living and residential
services to individuals with developmental disabilities. These services are known as
Individual Options Waiver Services. The Individual Options Waiver (“IO waiver”) is a
Medicaid waiver for clients who have developmental disabilities and who are eligible
to use that waiver to receive care and support in their homes and communities. The
use of these waiver services to fund supported living services results in a complex
relationship between the recipients, the providers, county boards of developmental
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disabilities, the Ohio Department of Developmental Disabilities (“DODD”), and Ohio
Department of Job and Family Services (“ODJFS”).
{¶4} The DODD is the statewide governmental agency responsible for
overseeing all of the services and IO waivers provided to clients. It writes the rules and
handles the licensing of providers, which consist of numerous residential homes and
day programs throughout the state. Waiver services vary depending on the client’s
needs, but could include services such as personal care, home modifications,
transportation, social work, equipment, and home-delivered meals. Each IO waiver
determines the number of services that will be provided to a client.
{¶5} DODD and HCDDS personnel, including county behavioral support
specialists (“BSS”) and county support service administrators (“SSA”) use IO waivers
to implement an individual service plan (“ISP”) specific to each client. Individual
clients can select certified providers of their choice. Providers are certified by DODD
and the Ohio Department of Medicaid and are listed on the DODD website. The
providers employ direct support personnel (“DSP”), who ensure that clients follow
their ISP by tracking “outcomes,” which are documented and billed by the provider.
Medicaid and DODD submit weekly payments to the provider.
{¶6} Individuals who serve the county as BSSes, SSAs, or DSPs are
“mandatory reporters,” who have a statutory responsibility to report allegations of
abuse, neglect, or other major unusual incidents (“MUIs”). See R.C. 5123.61(C). Once
these issues are reported, HCDDS and its investigative agents must review the report,
investigate the incident, and submit a report to DODD of their findings. If the incident
involves an MUI, those findings include whether the MUI has been substantiated. But
HCDDS does not have authority to take action concerning the person involved in the
substantiated claim. Ohio law requires DODD to have a registry office for purposes of
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maintaining, reviewing, investigating, and depending on the circumstances, acting on
these reports, including placing someone on the abuser registry.
{¶7} A Ray of Hope was a certified waiver provider under contract with
DODD. It was incorporated in 2013, and during the relevant times, Laura Switzer was
its sole owner. It provided a residential program, as well as a separate day program
called Perfect Circles. As a provider, it was required to employ at least one DSP. The
residential and the day program each used the same people as employees.
{¶8} At A Ray of Hope, Reynolds worked as a DSP, and later, he also served
as its Chief Financial Officer (“CFO”). After he began working at A Ray of Hope, he
did not work for any other provider. He billed A Ray of Hope for his services and his
paychecks came from A Ray of Hope. He stated that he did not work directly for
HCDDS, he did not receive any payments for waiver services from HCDDS, and he was
not required to sign any of HCDDS’s policies. He also testified that A Ray of Hope had
its own internal policies apart from DODD’s rules and regulations, with which he had
to comply.
{¶9} Reynolds negotiated with A Ray of Hope with respect to his position,
potential ownership, and potential bonuses. When he started as a DSP with A Ray of
Hope, he brought a “big client” with him, and he later became CFO. In that position,
he “looked at the finances,” “helped people get their paychecks,” “helped make the
schedule,” and “put the staff in place where they were going to be working.” He hired
other DSPs and had authority to hire and fire employees at A Ray of Hope. Finally, he
testified that only he and Switzer had financial control of A Ray of Hope, and they were
responsible for paying staff.
{¶10} Because Perfect Circles was a day program, he was able to use Perfect
Circles at night as his own entity to generate additional revenue through nonwaiver
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activities, such as martial arts and a recording studio. He said he created the name
Perfect Circles, and he owned “Perfect Circles Boxing and Recording.” On his 2016
and 2017 tax returns, he filed as a self-employed person and independent contractor.
{¶11} Reynolds contended that around July 2016, HCDDS employees started
comparing Reynolds, a black male, to Barry Isaacs, another black male service
provider, who was accused and ultimately convicted of fraud related to his work as a
DSP. Reynolds learned of those comparisons and complained that they were
unjustified and racially motivated. Metzger, HCDDS Director of Integration and
Advocacy, sent an email to various HCDDS employees asking if anyone had concerns
about Reynolds or A Ray of Hope. In response, Mark Unterbrink, an Investigative
Agent in the Major Unusual Incident Unit, referred to Reynolds as “the next Barry
Issacs.” Reynolds noted that he had “dreads and piercings,” as did Isaacs.
{¶12} Reynolds further testified that he had a conversation with Van Rheenan,
an SSA, and Tekeste, a BSS, in which they told him that Metzger had “problems with
Issacs.” Metzger had said that Isaacs was “ghetto” and a “thug.” Tekeste had to go
with Isaacs to county board meetings so that they didn’t think Isaacs was a “thug” or
“too ghetto to run a company.”
{¶13} Subsequently, Metzger sent an email to various HCDDS employees
acknowledging that Reynolds was upset about being compared to Isaacs and agreeing
that the “thug” association with Reynolds was “unfair.” Metzger acknowledged that
he had once thought of Reynolds in that way. He then sent an email to Reynolds and
Switzer agreeing that the comparisons to Isaacs were “untrue” and “unfair.”
{¶14} On January 3, 2017, Metzger sent a “clean the slate” email to Reynolds
and Switzer, which was copied to several HCDDS employees, in which he
acknowledged that the relationship between Reynolds and HCDDS was tenuous. He
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also confirmed that Reynolds was not an associate of Isaacs, and he should not be
compared to Isaacs.
{¶15} Reynolds complained about discrimination at a meeting on January 18,
2017, which was led by Metzger. According to Reynolds, Metzger had shown up
unannounced the following day at Perfect Circles. Then Metzger reported compliance
issues to DDOD.
{¶16} On April 25, 2017, Van Rheenan and Tekeste visited a Perfect Circles
daycare program, where they spoke with clients. One client informed them that he
had called the police on April 20, 2017, because of a peer-to-peer incident in which he
was verbally threatened by another client. They sent an email to Reynolds advising
him about what they learned during the visit. Reynolds responded by stating that he
had been in New York and did not know that the police had been called.
{¶17} Flowers was the Director of the MUI Department for HCDDS. On April
17, 2017, she received a report of verbal abuse involving Reynolds, accompanied by an
audio recording capturing the alleged verbal abuse. Flowers testified that while she
was investigating that report, she discovered other allegations involving Reynolds,
including misappropriation of funds, abuse, and neglect. On May 1, 2017, she initiated
two MUIs in which Reynolds was the primary person of interest. One stated that
Reynolds had verbally abused two clients on April 25, 2017. The second stated that
Reynolds had failed to report the April 20, 2017 peer-to-peer incident that was
reported to Van Rheenan and Tekeste.
{¶18} As a result of the initial allegation of verbal abuse involving Reynolds
and two clients from A Ray of Hope, Flowers recommended to Switzer that she remove
Reynolds from having contact with those two clients. She testified that it was up to
the owner’s discretion whether to follow that recommendation. She also stated that
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neither she, nor HCDDS, had authority to remove any clients from their programs.
Further, Reynolds testified that no BSS or SSA from HCDDS had ever ordered a DSP
from A Ray of Hope not to work with a specific client or had any input as to the hiring
and firing of A Ray of Hope’s employees.
{¶19} Reynolds first found out about the investigation into the verbal-abuse
allegation on May 5, 2017. On that day, Switzer instructed him to have no contact with
A Ray of Hope’s clients until further notice. Nevertheless, under Switzer’s direction,
he continued to be regularly paid by A Ray of Hope.
{¶20} On June 21, 2017, A Ray of Hope was suspended by the Ohio
Department of Medicaid due to credible allegations of fraud. Reynolds said that
Medicaid later closed its investigation because it had “no prosecutorial merit.” He
added that A Ray of Hope was shut down by the Attorney General for “safety
concerns.” Reynolds thought that he was also suspended, but he later realized that he
was not under any suspension. Since June 21, 2021, he has been employed with
another provider as a community access specialist and a community living support
specialist, providing services like the ones he had been performing for A Ray of Hope.
I. Political-Subdivision Immunity
{¶21} In their first assignment of error, appellants contend that the trial court
erred by failing to grant their motion for summary judgment on all claims. They argue
that HCDDS and the individual appellants are entitled to immunity under R.C.
2744.03(A)(3) and 5123.61(K) on all claims. They also argue that HCDDS and the
individual appellants acting in their official capacity are immune from an award of
punitive damages or attorney fees. We find merit in appellants’ argument.
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A. Standard of Review
{¶22} An appellate court reviews a trial court’s ruling on a motion for
summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671
N.E.2d 241 (1996); Maas v. Maas, 2020-Ohio-5160, 161 N.E.3d 863, ¶ 13 (1st Dist.).
Summary judgment is appropriate if (1) no genuine issue of material fact exists for
trial, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable
minds can come to but one conclusion and that conclusion is adverse to the
nonmoving party, who is entitled to have the evidence construed most strongly in his
or her favor. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267
(1977); Maas at ¶ 13.
B. Employee v. Independent Contractor
{¶23} R.C. Chapter 2744, the Political Subdivision Liability Act, establishes a
comprehensive statutory scheme for the tort liability of political subdivisions and their
employees. Piazza v. Cuyahoga Cty., 157 Ohio St.3d 497, 2019-Ohio-2499, 138
N.E.3d 1108, ¶ 11. R.C. 2744.09 “identifies certain scenarios in which R.C. Chapter
2744.09 does not apply.” Id. at ¶ 11. R.C. 2744.09(B) provides, “This chapter does not
apply to, and shall not be construed to apply to * * * [c]ivil actions by an employee * *
* against his political subdivision relative to any matter that arises out of the
employment relationship between the employee and the political subdivision * * *.”
This section removes immunity only as to the political subdivision and does not affect
the statutory immunity of a fellow employee. Zumwalde v. Madeira & Indian Hill
Joint Fire Dist., 128 Ohio St.3d 492, 2011-Ohio-1603, 946 N.E.2d 748, syllabus.
{¶24} We begin our analysis by addressing the issue of whether Reynolds was
an employee or an independent contractor. Reynolds acknowledges that he was not a
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direct employee of HCDDS. He claims that he was an employee under an agency or
joint-enterprise theory. His argument ignores the definition of employee set forth in
R.C. 2744.01(B). It states that “Employee” means “an officer, agent, employee, or
servant, whether or not compensated or full-time or part-time, who is authorized to
act and is acting within the scope of the officer’s, agent’s, employee’s, or servant’s
employment for a political subdivision.” It further states, that “Employee” does not
include an independent contractor * * *.”
{¶25} The term “independent contractor” is not defined in R.C. Chapter 2744,
so we look to common law regarding both employment and agency relationships for
the test to distinguish an employee from an independent contractor. Trucco Constr.
Co. v. Fremont, 6th Dist. Sandusky No. S-12-007, 2013-Ohio-415, ¶ 18. Generally, a
party is classified as an independent contractor, rather than an employee or agent,
based upon the ability of the political subdivision to control the work to be performed.
Lakota v. Ashtabula, 11th Dist. Ashtabula No. 2015-A-0010, 2015-Ohio-3413, ¶ 37;
Trucco Constr. Co. at ¶ 22; Wade-Hairston v. Franklin Cty. Bd. of Mental Retardation
& Dev. Disabilities, 10th Dist. Franklin No. 98-AP-456, 1998 Ohio App. LEXIS 6223,
10-11 (Dec. 17, 1998). “When a party agrees to produce some end product or result
without the political subdivision having any right to control the method of
accomplishing the specific work/services to be performed, the party is deemed to be
an independent contractor.” Trucco Constr. Co. at ¶ 22.
{¶26} The determination of whether a party is an employee or an independent
contractor is fact specific. If the evidence is not in conflict, or if the facts are admitted,
the question of whether a person is an employee or independent contractor is an issue
of law. But if the facts are disputed, it is an issue of fact for a trier of fact to decide.
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Trucco Constr. Co. at ¶ 23, and Wade-Hairston at 11, both citing Bostic v. Connor, 37
Ohio St.3d 144, 524 N.E.2d 881 (1988).
{¶27} The facts in this case as to Reynold’s employment status are not in
dispute. Reynolds worked as a DSP at A Ray of Hope, and later, he also served as its
CFO. He billed A Ray of Hope for his services. He testified that his paychecks came
from A Ray of Hope. He stated that he did not work directly for HCDDS, he did not
receive any payments for waiver services from HCDDS, and he was not required to
sign any of HCDDS’s policies. He also testified that A Ray of Hope had its own internal
policies apart from DODD’s rules and regulations, with which he had to comply.
{¶28} DODD and HCDDS have some control over the service providers in that
they promulgate rules and regulations consistent with the statutes governing IO
waivers. But that doesn’t mean that any individual who works for a certified service
provider qualifies as an employee. If we accept Reynolds’s argument that he was an
employee, then arguably any person or entity subject to rules or regulations could be
an employee of that entity.
{¶29} A Ray of Hope was a separate entity and HCDDS could not control all
its activities. Flowers testified that she could only recommend that Switzer suspend
him from having contact with A Ray of Hope’s clients. She testified that it was up to
the owner’s discretion whether to follow that recommendation. She also stated that
neither she, nor HCDDS, had authority to remove any clients from their programs.
Further, Reynolds testified that no BSS or SSA from HCDDS, had ever ordered a DSP
from A Ray of Hope not to work with a specific client, nor did they have any input as
to the hiring and firing of A Ray of Hope’s employees. Additionally, Reynolds testified
that despite the pending investigation against him and the fact that he could not
provide any waiver services, Switzer, in her discretion, decided to keep paying him.
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{¶30} Reynolds relies on various administrative regulations in arguing that he
was acting as an employee of HCDDS. We do not agree that those regulations change
the conclusion that Reynolds was not an employee of HCDDS.
{¶31} This case is similar to Wade-Hairston, 10th Dist. Franklin No. 98AP-
456, 1998 Ohio App. LEXIS 6223, in which the plaintiffs were originally full-time
employees of the Franklin County Board of Mental Retardation and Developmental
Disabilities (“Board”). They worked at a sheltered workshop for intellectually disabled
individuals. They were asked if they wanted to provide IO waiver services in their
homes. They were told that they would be providing those services through the state
Department of Mental Retardation and Developmental Disabilities. After training and
entering into separate provider agreements, they provided waiver services in their
home or the homes of their consumers.
{¶32} Plaintiffs filed suit for wages and overtime pay under the federal Fair
Labor Standards Act and R.C. 4111.03. Because the trial court found that the plaintiffs
were independent contractors and not employees of the Board while they were
providing waiver services, it granted the Board’s motion for summary judgment.
{¶33} In determining whether the plaintiffs were employees or independent
contractors, the appellate court stated, “If the employer reserves the right to control
the manner or means of doing the work, the relation created is that of master and
servant, while if the manner or means of doing the work or job is left to one who is
responsible to the employer only for the result, an independent contractor relationship
is thereby created.” Id. at 10-11, quoting Bostic, 37 Ohio St.3d at 146, 524 N.E.2d 881.
The determination of who has the right to control must be made by examining the
individual facts of each case including: (1) who controls the details and the quality of
the work; (2) who controls the hours that are worked; and (3) who selects the
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OHIO FIRST DISTRICT COURT OF APPEALS
materials, tools, and the personnel used in performing the work. Id. at 11, citing Bostic
at 146.
{¶34} The court stated that the plaintiffs never received any payments for
waiver services from the Board. They each entered into a provider contract with the
Board, which stated that they were individually responsible for all expenses incurred,
that they had to carry liability insurance, and that they were responsible for fulfilling
the requirements and goals for each consumer. The court also noted that during the
time in question, the plaintiffs filed tax forms that would be applicable only to self-
employed individuals. It concluded that “there was little or no control exercised over
the manner and means by which [plaintiffs] provided waiver services,” and that
plaintiffs were independent contractors. Wade-Hairston, 10th Dist. Franklin No.
98AP-456, 1998 Ohio App. LEXIS 6223, at 12.
{¶35} Finally, the court noted that plaintiffs had argued that “because the
Board oversaw the program, i.e., developed the goals and requirements for each
consumer and supervised the waiver program, that an employee/employer
relationship was established.” Id. The court disagreed. It stated, “[t]he provider
contract is primary evidence of the parties’ contractual relationship. [Plaintiffs] were
permitted to use their discretion in meeting the goals and objectives set forth for each
consumer. The goals and objectives set forth by the Board were merely the guidelines
to be used by [plaintiffs] in successfully completing the requirements of the waiver
program.” Id. at 12-13.
{¶36} Similarly, in Williams v. Richland Cty. Children Servs., 861 F.Supp.2d
874 (N.D.Ohio 2011), the plaintiff was owner of a company that provided housing and
transportation for the elderly and special-needs individuals. She filed a complaint
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against the defendants, a children services agency and various employees of the
agency. The defendants filed a motion to dismiss.
{¶37} The court granted the motion to dismiss as to the agency because
plaintiff was not an employee of the agency. The court stated,
Courts distinguish employee and independent contractor status by
determining whether the employer has the right to control the manner
in which the work is performed. The following elements are considered
in determining the independent contractor/employee question: the
hiring party’s right to control the manner and means by which the
product is accomplished; the skill required by the hired party; the
duration of the relationship between the parties; the hiring party’s right
to assign additional projects; the hired party’s discretion over when and
how to work; the method of payment; the hired party’s role in hiring and
paying assistants; whether the work is part of the hiring party’s regular
business; the hired party’s employee benefits; and tax treatment of the
hired party’s compensation. No one factor is dispositive.
Williams at 884, citing Simpson v. Ernst & Young, 100 F.3d 436, 443 (6th Cir.1996).
{¶38} The court determined that the plaintiff was an independent contractor.
It reasoned that that the agency did not retain any control over how she carried out
transportation assignments or the route she took; the agency did not provide plaintiff
with a car or any other vehicle to conduct her transportation duties; her business
provided numerous services other than transportation; she did business with several
different agencies; and she was not paid by the agency but from various other sources,
including Medicaid and Medicare.
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{¶39} The court rejected the plaintiff’s argument that she was an employee
because the agency had significant control over her duties since it dictated whom she
transported, the amount charged, the nature of the trips assigned, and whether the
work was part of the agency’s regular business. It stated that “case law is clear that a
workers lack of discretion is not an indication of employee status, particularly when
the lack of discretion is the result of governmental regulation.” Williams, 861
F.Supp.2d at 884.
{¶40} Reynolds’s testimony showed that he negotiated with A Ray of Hope,
not HCDDS, with respect to his position, potential ownership, and potential bonuses.
HCDDS did not own or control the building used by A Ray of Hope. He stated that A
Ray of Hope rented the building from a third party. No BSSes or SSAs had their offices
in that building. Reynolds was able to use the building and the name Perfect Circles
to generate additional revenue through nonwaiver services activities. HCDDS did not
provide him with a vehicle to conduct his duties. He used his own vehicle or a vehicle
rented by A Ray of Hope.
{¶41} Reynolds had no contract with HCDDS, and he testified that he never
had to sign off on any HCDDS policies, but instead only had to comply with rules and
regulations that were issued by the state. A Ray of Hope had its own internal policies.
As CFO, he made the schedule, issued payroll, had financial control, and had the
authority to hire, fire, and discipline its employees. He further stated that HCDDS had
no control over who or how he scheduled employees to carry out A Ray of Hope’s
duties. He testified that he paid himself as an independent contractor, and his tax
returns reflected that status.
{¶42} We hold as a matter of law that Reynolds was an independent
contractor, not an employee of HCDDS. Therefore, the exception from immunity for
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employees of political subdivisions does not apply. The trial court erred in denying
appellants’ motion for summary judgment on the basis that issues of fact existed as to
whether Reynolds was an employee of HCDDS.
C. Appellate Review of Immunity Claims
{¶43} Next, we address the issue of whether HCDDS is entitled to immunity
and whether any other exceptions to that immunity apply. Generally, we would
remand unresolved issues to the trial court to determine them in the first instance.
But R.C. 2744.02(C) provides that “[a]n order that denies a political subdivision or an
employee of a political subdivision the benefit of an alleged immunity from liability as
provided in this chapter or any other provision of law is a final order.” The Ohio
Supreme Court has held that when a trial court denies a motion in which a political
subdivision or its employee seeks immunity under R.C. Chapter 2744, “that order
denies the benefit of an alleged immunity and, therefore is a final, appealable order
pursuant to R.C. 2744.02(C).” Hubble v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839,
873 N.E.2d 878, syllabus.
{¶44} The court in Hubble also noted policy reasons for its “broad
interpretation of R.C. 2744.02(B).” Slonsky v. J.W. Didado Elec., Inc., 9th Dist.
Summit No. 24228, 2008-Ohio-6791, ¶ 7. “As the General Assembly envisioned, the
determination of immunity could be made prior to investing the time, effort and
expense of the courts, attorneys, parties and witnesses * * *.” Id. at ¶ 7, quoting Hubble
at ¶ 26.
{¶45} After a de novo review of the law and facts, if genuine issues of fact
remain, a court of appeals may remand the cause to the trial court for further
development of the facts necessary to resolve the immunity issue. But if only issues of
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law remain, we may decide the appeal based on those issues of law. See Slonsky at ¶
8.
D. A Three-Tiered Analysis
{¶46} Determining whether a political subdivision is immune from tort
liability under R.C. Chapter 2744 involves a three-tiered analysis. Pelletier v.
Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 15; Inwood Village,
Ltd. v. Cincinnati, 1st Dist. Hamilton No. C-110117, 2011-Ohio-6632, ¶ 11. The first
tier provides a general grant of immunity. A political subdivision is immune from
liability incurred performing either a governmental or a proprietary function. R.C.
2744.02(A); Pelletier at ¶ 15; Inwood Village at ¶ 11.
{¶47} The second tier requires a court to determine whether any of the five
exceptions set forth in R.C. 2744.02(B) apply. Pelletier at ¶ 15; Inwood Village at ¶ 11.
Under the third tier, if any of those exceptions apply, a court must determine whether
any of the defenses contained in R.C. 2744.03 apply to reinstate immunity. Pelletier
at ¶ 15; Inwood Village. at ¶ 11.
{¶48} It is undisputed that HCDDS is a political subdivision. Similarly,
Reynolds does not argue that it was not performing a governmental function. R.C.
2744.01(C)(2)(o) specifically provides that the “operation of mental health facilities,
developmental disabilities facilities, alcohol treatment and control centers, and
children’s homes or agencies” are governmental functions. Therefore, HCDDS is
entitled to the general grant of immunity under the first tier of the analysis.
{¶49} Under the second tier, we must determine whether any of the exceptions
to the general grant of immunity in R.C. 2744.02(B) apply. In light of the presumption
of broad immunity for political subdivisions, the statute does not place the burden on
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the political subdivision to demonstrate that no exceptions apply. “[R]ather, once the
first tier has been met, the plaintiff must demonstrate one of the statutorily defined
exceptions apply in order to proceed.” Fried v. Friends of Breakthrough Schools., 8th
Dist. Cuyahoga No. 108766, 2020-Ohio-4215, ¶ 22.
{¶50} Appellants raised the issue of immunity in their motion for summary
judgment. Reynolds did not address that issue in his memorandum in response, but
instead argued the merits of the claims in his complaint. In his brief to this court, he
has not specified which exceptions to immunity in R.C. 2744.02(B) apply, and we find
none.
{¶51} Instead, Reynolds relies on R.C. 2744.03(A)(5), which states that a
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 discretion was exercised with malicious purpose, bad faith,
or in a wanton or reckless manner.” But the application of R.C. 2744.03 is the third
tier of the analysis. If none of the exceptions in R.C. 2744.02(B) apply, the political
subdivision is immune from liability and the analysis ends. Partin v. Norwood, 1st
Dist. Hamilton No. C-140461, 2015-Ohio-1616, ¶ 18. Therefore, we need not reach
issue of whether R.C. 2744.03 applies.
{¶52} Thus, HCDDS and employees acting in their official capacity are entitled
to immunity as a matter of law on Reynolds’s claims for wrongful discharge,
harassment, alteration of conditions of employment, and retaliation. Therefore, the
trial court erred in denying appellants’ motion for summary judgment as to those
claims.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶53} As to Reynolds’s defamation claim, the trial court stated that that claim
was not dependent on the determination of whether Reynolds was an employee of
HCDDS. It further stated that the defamation claim would survive the motion for
summary judgment “as there are issues of material fact that must be determined at
trial.”
{¶54} In Ohio, the tort of defamation may be either negligent or intentional.
Mayer v. Bodnar, 5th Dist. Delaware No. 22 CAE 05 oo41, 2022-Ohio-4705, ¶ 51;
Price v. Austintown Local School Dist. Bd. of Edn., 178 Ohio App.3d 256, 2008-Ohio-
4514, 897 N.E.2d 700, ¶ 25 (7th Dist.). But Reynolds has only alleged intentional
conduct, and political subdivisions are immune from intentional torts. Yankovitz v.
Greater Cleveland Regional Transit Auth., 8th Dist. Cuyahoga No. 112040, 2023-
Ohio-2584, ¶ 39; Fried, 8th Dist. Cuyahoga No. 108766, 2020-Ohio-4215, at ¶ 24;
Price at ¶ 22.
{¶55} HCDDS and the appellants acting in their official capacity also argue
that they are immune from an award of punitive damages or attorney fees. We agree.
R.C. 2744.05(A) states that “punitive or exemplary damages shall not be awarded”
against a political subdivision. Further, attorney fees may not be awarded against a
political subdivision unless specifically authorized by statute. Speller v. Toledo Pub.
Sch00l Dist. Bd. of Edn., 2015-Ohio-2672, 38 N.E.3d 509, ¶ 52 (6th Dist.).
{¶56} Those appellants also argue that they are entitled to immunity under
R.C. 5123.61(K), which involves their duty to report abuse, neglect, and other major
unusual incidents to a law enforcement agency or to a county board of developmental
disabilities. Since we have already determined that the appellants are immune under
R.C. Chapter 2744, this issue is moot and we decline to address it.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶57} In sum, we hold as a matter of law that HCDDS and the other appellants
acting in their official capacity have immunity with regard to all of Reynolds’s claims,
and the trial court erred in failing to grant their motion for summary judgment on all
of Reynolds’s claims. Consequently, we sustain appellants’ first assignment of error.
II. Political-Subdivision-Employee Immunity
{¶58} In their second assignment of error, appellants contend that the trial
court erred in failing to address the immunity of the appellants in their individual
capacities (“employees-appellants”) and in failing to grant summary judgment in their
favor. They argue that they are entitled to immunity under both R.C. Chapter 2744
and 5123.61(K) on all claims. This assignment of error is well taken.
{¶59} R.C. 2744.03(A)(6) provides that employees of a political subdivision
enjoy a presumption of immunity in connection with their performance of
governmental or proprietary functions unless any of three exceptions apply. Anderson
v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 21; Morelia
Group-De, LLC v. Weidman, 1st Dist. Hamilton No. C-220153, 2023-Ohio-386, ¶ 24.
Those exceptions are (1) the employees acts or omissions were manifestly outside the
scope of the employee’s employment or official responsibilities; (2) the employee’s acts
or omissions were with malicious purpose, in bad faith, or in a wanton or reckless
manner; (3) civil liability is expressly imposed upon the employee by a section of the
Revised Code. R.C. 2744.03(A)(6)(a)-(c); Morelia Group-De at ¶ 25. The exceptions
to immunity must be narrowly construed. Stoll v. Gardner, 182 Ohio App.3d 214,
2009-Ohio-1865, 912 N.E.2d 165, ¶ 16 (9th Dist.).
{¶60} For purposes of R.C. 2744.03, “malice” has been defined as the “willful
and intentional desire to harm another, usually seriously, through conduct which is
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OHIO FIRST DISTRICT COURT OF APPEALS
unlawful or unjustified.” Morelia Group-De at ¶ 29. When an employee’s conduct is
motivated by actual malice, it is outside the scope of his or her employment. Id. at ¶
27. Bad faith means more than bad judgment or negligence. It implies “a dishonest
purpose, moral 0bliquity, conscious wrongdoing, breach of a known duty through
some ulterior motive or ill will partaking in the nature of fraud.” Alagha v. Cameron,
1st Dist. Hamilton No. C-081208, 2009-Ohio-4886, ¶ 20, quoting Wooten v. Vogele,
147 Ohio App.3d 216, 2001-Ohio-7096, 769 N.E.2d 889, ¶ 19 (1st Dist.).
{¶61} Willful and wanton misconduct is something more than negligence.
Whitley v. Progressive Preferred Ins. Co., 2009-Ohio-6933, 970 N.E.2d 1009, ¶ 12
(1st Dist.). Wanton misconduct is the failure to exercise any care whatsoever toward
those to whom a duty is owed if the failure to exercise care occurs when a great
probability of harm exists. Id. at ¶ 12. Willful misconduct involves an “intent, purpose
or design not to perform the duty of care that is owed.” Id. at ¶ 12, quoting Alagha at
¶ 21. Recklessness is a perverse disregard of a known risk. The actor must be
conscious that his or her conduct will probably result in injury. O’Toole v. Denihan,
118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, paragraph three of the syllabus;
Alagha at ¶ 21.
{¶62} These are “rigorous standards” to establish. Argabrite v. Neer, 149
Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 8; Strayer v. Barnett, 2d Dist. Clark
No. 2016-CA-19, 2017-Ohio-5617, ¶ 39. Generally, the determination of whether an
employee of a political subdivision acted willfully and wantonly is a question of fact
for the jury. But where the record does not contain evidence of willful and wanton
misconduct, a trial court may grant summary judgment in favor of the employee.
Whitley at ¶ 13; Alagha at ¶ 22.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶63} Reynolds argues that the allegations against him surfaced shortly after
he complained that the comparisons between him and Isaacs were unjustified and
were racially motivated. He specifically cites Flowers’s conduct during the MUI
investigation. He contends that: (1) she initiated her investigation after his claim of
racial discrimination; (2) she continued her investigation of the alleged verbal abuse
after informal interviews with clients that denied any verbal abuse; (3) she continued
her investigation after learning that Reynolds was out of town at the time of the alleged
verbal abuse; (4) she initiated other MUI investigations based solely on unreliable
claims of a severely developmentally disabled client; (5) she informed the Ohio
Attorney General’s Office that A Ray of Hope clients were “at risk trafficking victims”;
(6) she implied that he was giving his clients drugs; (7) she falsely informed DODD
that Reynolds was providing services in Clermont County after he had been removed
from client contact; and (8) she allowed the investigation to linger for two years even
though those investigations are supposed to be completed in 30 days.
{¶64} These arguments are largely based on mischaracterizations of the
evidence. Flowers testified that she was unaware of any discrimination complaint
before or during the MUI investigation. Further, undisputed evidence showed that the
investigation was only initiated after a tip accompanied by an audio recording was
received from a third-party informant. The record also shows that an employee of
DODD, not Flowers or HCDDS, stated to the Attorney General’s Office that A Ray of
Hope clients were “at risk trafficking victims.” The document, which Reynolds
claimed implied that he was giving drugs to the client, did not mention drugs. It said
only that Reynolds made “vape juice.” Finally, the only document he refers to in
support of the allegation that Flowers falsely stated to DODD that he was providing
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OHIO FIRST DISTRICT COURT OF APPEALS
serves in Clermont County was his amended complaint. The evidence did not support
that allegation.
{¶65} Finally, as to the length of the investigation, Flowers testified that the
state of Ohio dictates when an MUI investigation report becomes final. While an
investigator can recommend a report for closure, the state issues that final closure. A
standard investigation can take about 45 days, but the length of an investigation is
determined on a case-by-case basis. Because extensions are available, some cases can
take two years to close.
{¶66} Reynolds also claims that Flowers prohibited him from having any
contact with clients, but the evidence showed that neither she nor HCDDS had the
authority to prohibit Reynolds from having contact with A Ray of Hope clients.
Although Flowers had recommended that Reynolds should not have contact with
certain clients, the decision was ultimately up to Switzer, the owner of A Ray of Hope.
{¶67} Reynolds asserts that Flowers’s MUI investigation resulted in the
closure of A Ray of Hope, but the evidence showed that The Ohio Department of
Medicaid suspended A Ray of Hope due to “credible allegations of fraud.” Flowers
testified that A Ray of Hope and Perfect Circles were being investigated for billing
concerns prior to the initial verbal-abuse allegation that spurred Flowers’s
investigation.
{¶68} While some of the statements made by various employees-appellants
were inappropriate, the evidence does not show that the employees-appellants’ actions
were manifestly outside the scope of their employment; that they engaged in willful or
wanton misconduct; or that they acted recklessly or with actual malice. Reynolds has
not met the “rigorous standard” to establish that the exceptions in R.C. 2744.03(6)
apply. Consequently, the employees-appellants are entitled to immunity under R.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
Chapter 2744, and we do not address whether they have immunity under R.C.
5123.61(K). We overrule Reynolds’s second assignment of error, reverse the trial
court’s judgment, and remand the cause to the trial court to enter summary judgment
in favor of appellants.
Judgment reversed and cause remanded.
CROUSE, P.J., and BOCK, J., concur.
Please note:
The court has recorded its own entry this date.
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