What’s on their Minds: 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.

On December 10, 2013, the Supreme Court of Ohio heard 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 was the first woman K-9 officer with the Dayton Police Department. When she was sent for three months training with her dog, she was the first person to whom a new policy applied, which required 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.  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 trial court denied summary judgment on the issue of Davis’ 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 removed 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. The dissent would find Davis was entitled to immunity, interpreting the law to mean Hauser’s only claim lies against the city, not a manager or supervisor. Read the oral argument preview of this case here.

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)

At Oral Argument

Amicus counsel for the Ohio Lawyers Employment Association gave the oral argument for Hauser.

The City’s lawyer, during argument, stated that Major Davis was no longer with the department, but because of a voluntary retirement, not because of any discipline.

City’s Argument

R.C. 2744.03(A)(6)(c), which is one of the exceptions to employee immunity, provides that  an employee is immune from liability unless liability is expressly imposed by a section of the Revised Code.  Ohio’s anti-discrimination statute does not expressly impose liability on employees of political subdivisions because the statute never says that it does.  It is the city’s position that the language of R.C. 4112 is not sufficiently particularized to impose liability on Major Davis for purposes of defeating the immunity he otherwise has under R.C. 2744.03. If the General Assembly had wanted to impose liability on the employees of political subdivisions, it knew how to say so, but it didn’t.

It would be bad policy to impose this kind of liability on employees of political subdivisions. It would adversely those employees, their morale, and the city treasury.  If a city employee has committed a wrong, the city is there to redress it.

Hauser’s Argument

When R.C. 4112 was drafted, the General Assembly made it quite clear that that the managers who run our cities and who intentionally discriminate can be sued. It is consistent with the whole structure and purpose of the anti-discrimination statute that such managers be held personally accountable in court.

The statutory definition of an employer includes political subdivisions and any person who acts directly or indirectly in the interest of that employer. Those persons include managers and supervisors.  The statute doesn’t require interpretation. The definitions supply all the answers. The legislature intended that managers should answer in court—it is good policy to be personally accountable.

While it is true that the city will be vicariously liable for any wrongdoing by an employee here, there are differences in the kinds of damages recoverable.  For example, a city cannot be sued for punitive damages, but an employee can be.

What Was on their Minds

The Genaro Case

The City argued Genaro was not controlling in this case. It did not apply to political subdivisions. The City also argued that if the Court were to revisit that case, the Court should adopt Chief Justice Moyer’s dissent. Hauser argued it made no difference whether the private or public sector was involved, Genaro was right on point, and clearly imposes liability on supervisors.

Was Hauser asking the Court to follow the majority decision in Genaro, asked Justice Lanzinger? (answer:yes). And in a key exchange of the day, she commented that there was a certain logic to the dissent’s  statutory interpretation in Genaro that the majority in that case might have missed.  She added that the statute could have just said that employees are not immune, but it didn’t.

Respondeat Superior

Is it the city’s position that the employee is immune even though he is the wrongdoer? The city that will be responsible for the consequences, and not the wrongdoer himself, asked Chief Justice O’Connor? (yes, that is the city’s position, said its counsel. Both counsel agreed the city would be on the hook here.) This would give the plaintiff an additional source of non-duplicative damages? She then asked for a scenario where a city would be liable, but an individual employee would not be.

Public Policy

As a policy matter, in a situation involving discrimination, which seems to be intentional conduct, why should the individuals that have the ability to do or not do something be immune, while the employer is the one vicariously liable, asked Justice Lanzinger?

In a key question of the day, Chief Justice O’Connor asked whether the Court was being asked to expand the exposure of liability for individual employees of the city in an unprecedented way?

The Statutory Language “Any person acting directly or indirectly in the interest of an employer”

Why doesn’t that language bring the employee into play asked Justice Lanzinger?

Wouldn’t that language include more than managers and supervisors? Wouldn’t it include just about any employee, asked Justice French? It wouldn’t really matter that the person wasn’t in a supervisory position?

In another key question of the day, Justice O’Donnell asked whether that language was included in the definition of employer to hold employers responsible for the discriminatory acts of their employees, not to include employees among those who are liable—the position taken by Chief Justice Moyer in his dissent in Genaro?

How it Looks from the Bleachers To Professor Bettman

Both lawyers got a lot of time to argue without being interrupted—the justices were unusually quiet.  This is a hard one, because no justice will want to appear to sanction discrimination involving a supervisor.  But I’m going out on a limb and calling this one for the City. I think a majority is going to adopt Chief Justice Moyer’s logic from his dissent in Genaro­- that had the General Assembly wished to extend individual liability to managerial personnel it could have easily included the word “employee” in R.C. 4112.02(A), which makes it unlawful for an employer to discriminate.  Both Justices Lanzinger and O’Donnell seemed to favor this position. This view would be more consistent with federal law in this area, although that would not seem to be a major concern for the justices.  The Chief and Justice French also seemed to feel Hauser’s interpretation of the phrase “Any person acting directly or indirectly in the interest of an employer” was just too expansive, and would re-define virtually any employee as an employer. It seemed very important to the Chief that the City would clearly vicariously liable for any proven act of discrimination by a supervisor.  If the Court goes this route, it may just determine Genaro does not apply to political subdivisions, rather than overturning it.  It could simply hold, as Judge Hall did in dissent in the appellate decision in this case, that R.C. 4112 does not expressly impose liability on individual employees of a political subdivision, especially when the city (in this case) is liable for the actions of any supervisor.

Justice Pfeifer was in the majority in Genaro.  He asked no questions during argument, but probably will stick with that position, and Justice O’Neill will probably join him in extending liability to supervisory employees.

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