Oral Argument Preview: Political Subdivision Supervisor Liability for Employment Discrimination. Anita Hauser v. City of Dayton Police Department, et al.

Update: On August 28, 2014, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On December 10, 2013, the Supreme Court of Ohio will hear oral argument in the case of Anita Hauser v. City of Dayton Police Department, et al., 2013-0291. The issue in this case is whether a political subdivision supervisor is liable for or immune from liability for an employment discrimination claim. The case was accepted on certified conflict and discretionary appeal, and the cases were consolidated.  The certified question is “whether civil liability is expressly imposed upon managers or supervisors under R.C. 4112.01(A)(2) for their individual violations of R.C. 4112.02(A) so that political subdivision immunity is lifted by R.C. 2744.03(A)(6)(c).”

Case Background

Anita Hauser is a detective for the City of Dayton’s Police Department. Detective Hauser attended three months of K-9 training with her dog, making her the first female K-9 officer at the Dayton Police Department. All her expenses were to be paid. A new policy at the department stated that employees on trips lasting more than seven days would be required to refund to the City any portion of per diem meal expenses which the employee could not substantiate with receipts. Hauser was the first person to whom the policy was applied. Upon her return, she was unable to provide receipts for over three thousand dollars of the advance for meals and tips, resulting in a requirement that she refund that amount to the City.

Police Major Mitchel Davis oversaw Hauser’s department in the investigations and administrative support division, although he did not directly supervise Hauser. Hauser filed a complaint against the Dayton Police Department and Major Davis on claims of sex discrimination in violation of R.C. Chapter 4112, arguing that no male police officer in Dayton had been required to produce proof of his per diem expenses. The City and Major Davis filed a motion for summary judgment, raising the issue of immunity for Major Davis. The trial court found that Davis was not entitled to statutory immunity on Hauser’s sex discrimination claim.

In a split decision, the Second District Court of Appeals affirmed the decision of the trial court, finding that Davis’ immunity was lifted by R.C. 2744.03(A)(6)(c) because civil liability is expressly imposed upon managers or supervisors under R.C. 4112.01(A)(2) for their individual violations of the statute, and that Davis was still Hauser’s supervisor, even if not her direct one. The dissent would find Davis was entitled to immunity, interpreting the law to mean Hauser’s only claim lies against the employer, not a manager or supervisor.

Key Precedent

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

R.C. 4112 (it shall be an unlawful discriminatory practice for any employer, because of the sex of any person, to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment)

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

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

Certified Conflict Case

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

Davis’ Argument

On appeal, Davis argues that Ohio law mandates that a political subdivision employee is immune from liability unless liability is expressly imposed by statute. The sex discrimination statute does not expressly impose such liability on this class of employees to trigger the immunity exception. The statute clearly imposes liability on employers for discriminatory acts, not on their employees. If the General Assembly wished to extend individual liability to managers and supervisors it would have included the word “employee” in the statute. Davis urges the Court to find that he had statutory immunity as an employee of a political subdivision.

Davis  argues that the 4-3 decision in Genaro dealt with private sector managers and supervisors, and did not address whether R.C. 4112 expressly imposed liability that would defeat political subdivision employee immunity. Davis also argues that federal courts, by analogy, have rejected individual liability under TitIe VII of the Civil Rights Act of 1964.

Finally, Davis argues that even if a supervisor may be individually liable, he retained his immunity because he was not Hauser’s manager or supervisor.

Hauser’s Argument

Hauser attacks Davis’ claim of immunity, responding that the exception to political subdivision employee immunity applies to the case at hand because liability is expressly imposed under the employment discrimination statutes. She points out that the Supreme Court of Ohio has held that a supervisor or manager is individually liable for his or her own acts of employment discrimination under the definitions within Chapter 4112. She urges the court to find that Davis is not immune under the statute.

Davis’ Proposed Proposition of Law

Liability is not expressly imposed on political subdivision employees under R.C. 4112.01(A)(2) so as to lift R.C. 2744.03(A)(6)(c) immunity.

Hauser’s Proposed Counter-Proposition of Law

R.C. 4112 expressly imposes liability on political subdivision management employees who discriminate against employees of the political subdivision.

Amicus Briefs

The Ohio Association for Justice and the Ohio Employment Lawyers Association joined by the Ohio NOW Education and Legal Defense Fund, and the Ohio Poverty Law Center, filed amicus curiae briefs on behalf of Hauser. Concerned with statewide consistency for employment discrimination plaintiffs, the amici urge the Court to uphold the denial of immunity for Major Davis.  They argue that the plain language of the Civil Rights Act lists employees of political subdivisions among the employers who are potentially liable for unlawful discrimination. They posit that individual liability for political subdivision management employees is necessary to protect employees like Hauser.  Finally, they argue Genaro is still good law, and specifically applies to this case.  There is no justifiable reason to treat political subdivision employees differently from their private sector counterparts.

Student Contributor Elizabeth Chesnut

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