[Cite as Johnson-Newberry v. Cuyahoga Cty. Child & Family Servs.,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

SYLVIA JOHNSON-NEWBERRY, :

Plaintiff-Appellee, : No. 107424 v. :

CUYAHOGA COUNTY CHILD AND : FAMILY SERVICES, ET AL., : Defendant

[Appeal by Stacey Gura, Defendant-Appellant]

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; DISMISSED IN PART RELEASED AND JOURNALIZED: September 12, 2019

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-888586

Appearances:

Sobel, Wade & Mapley, L.L.C., and Claire I. Wade-Kilts, for appellee.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Brian R. Gutkoski, Assistant Prosecuting Attorney, for appellant. MICHELLE J. SHEEHAN, J.:

Defendant-appellant Stacey Gura appeals from the trial court’s order

denying the collective defendants’ motion for judgment on the pleadings and

granting the plaintiff-appellee Sylvia Johnson-Newberry’s motion for leave to

amend her complaint.1 Gura argues she is entitled to sovereign immunity for

Johnson-Newberry’s allegations of personal liability for aiding and abetting

pursuant to R.C. 4112.02(J). As set forth below, we affirm the trial court’s order

denying immunity. Because the trial court’s order granting leave to allow Johnson-

Newberry to amend her complaint to correct the Cuyahoga County defendant’s

name is not a final appealable order, we do not have jurisdiction to address Gura’s

second assignment of error.

Procedural History

Plaintiff-appellee Sylvia Johnson-Newberry was employed by

defendant Cuyahoga County Division of Children and Family Services (“CCDCFS”)

as a social worker on November 14, 2016, until her termination on August 2, 2017.

On November 6, 2017, Johnson-Newberry filed a complaint against her former

employer, CCDCFS, and her former supervisor, defendant-appellant Stacey Gura.

Johnson-Newberry asserted four claims in her complaint. Three

claims were against CCDCFS: (1) disability discrimination; (2) race discrimination;

1 Defendant Cuyahoga County Division of Children and Family Services did not appeal the trial court’s denial of the defendants’ motion for judgment on the pleadings and granting of the plaintiff’s motion for leave to amend the complaint and therefore is not a party to this appeal. and (3) retaliation. In her fourth cause of action, Johnson-Newberry asserted a

claim against Gura for aiding and abetting unlawful discrimination in violation of

R.C. 4112.02(J). The defendants filed a joint answer, with several exhibits, and

asserted affirmative defenses.

On April 9, 2018, the defendants filed a motion for judgment on the

pleadings and to strike Johnson-Newberry’s claim for punitive damages. In their

motion, defendants asserted that the cause of action against Gura is actually a claim

against Gura in her official capacity and therefore is a claim against CCDCFS.

Defendants also claimed immunity. On April 24, 2018, Johnson-Newberry filed a

motion to amend her complaint. Johnson-Newberry moved to correct a mistake in

the county defendant’s name. Johnson-Newberry stated that she mistakenly

omitted the words “division of” from “Cuyahoga County Child and Family Services.”

On June 12, 2018, the trial court denied the defendants’ motion for

judgment on the pleadings without analysis and granted Johnson-Newberry leave

to amend the complaint “to correct the misnomer, only.” Thereafter, Johnson-

Newberry filed her amended complaint, partially correcting the county defendant’s

name to “Cuyahoga County Division of Child [sic] and Family Services.”

Defendant-appellant Gura now appeals the trial court’s June 2018

order, assigning two errors for our review:

I. The trial court committed prejudicial and reversible error by denying Appellant’s Motion for Judgment on the Pleadings. II. The trial court abused its discretion in granting leave to file an amended complaint.2

Motion for Leave to Amend Complaint

Gura contends that the trial court abused its discretion when it

permitted Johnson-Newberry to amend her complaint. In support, she argues that

(1) Johnson-Newberry’s motion failed to comply with the trial court’s local rules

requiring the movant to attach her proposed amendment; and (2) Johnson-

Newberry’s complaint improperly alleges punitive damages.

It is well established that an appellate court may only review final

orders, and without a final order, an appellate court has no jurisdiction for

review. Hubbell v. Xenia,

,

,

,

citing Gen. Acc. Ins. Co. v. Ins. Co. of N. Am.,

,

(1989). R.C. 2744.02(C) carves out an exception and permits a political subdivision

or an employee of a political subdivision to appeal an order that denies it the benefit

of an alleged immunity under R.C. Chapter 2744, “even when the order makes no

determination that there is no just cause for delay pursuant to Civ.R.

54(B).” Sullivan v. Anderson Twp.,

,

,

, syllabus.

However, appellate review pursuant to R.C. 2744.02(C) is limited to

review of only alleged errors involving the denial of “the benefit of an alleged

2 In the interest of judicial economy, we address the assignments of error out of order. immunity from liability” and does not authorize appellate courts to otherwise review

alleged errors that do not involve claims of immunity. Windsor Realty & Mgt., Inc.

v. N.E. Ohio Regional Sewer Dist.,

,

, ¶ 15 (8th Dist.);

Riscatti v. Prime Props. Ltd. Partnership,

,

,

. “Generally, an order denying leave to amend a pleading is not a

final, appealable order.” Supportive Solutions, L.L.C. v. Electronic Classroom of

Tomorrow,

,

,

.

Here, the record shows that on November 6, 2017, Johnson-Newberry

filed a complaint against “Cuyahoga County Child and Family Services” and Stacey

Gura. On April 17, 2018, in the defendants’ motion for leave to file a reply brief in

support of judgment on the pleadings instanter, the defendants assert that Johnson-

Newberry “did not sue the proper named entity, which is ‘Cuyahoga County,

Division of Child and Family Services.’” Approximately one week later, Johnson-

Newberry filed a motion to amend her complaint to correct the defendant’s name,

requesting the court allow her to amend the complaint to add “division of” to the

defendant’s name. On June 12, 2018, the trial court granted Johnson-Newberry’s

motion to amend her complaint “to correct the misnomer, only.” And on June 20,

2018, Johnson-Newberry filed her amended complaint.

Our review of the amended complaint reveals that the only changes to

the original complaint is the addition of the words “division of” to the Cuyahoga

County defendant’s name (in two places) and a correction to the parenthetical

description of Johnson-Newberry’s first cause of action: “Race Discrimination” is corrected to state “Disability Discrimination,” to correctly correspond to the

allegation of disability discrimination contained in the body of the first cause of

action. The amended complaint does not alter the body of the first cause of action.

Because Johnson-Newberry’s motion for leave to amend the

complaint sought only to correct a misnomer in the county defendant’s name and

did not involve any issues involving “immunity from liability,” the order granting

the motion is not a final appealable order. We therefore have no jurisdiction to

review Gura’s second assignment of error and we disregard it.

Motion for Judgment on the Pleadings

Gura also contends that the trial court erred when it denied her Civ.R.

12(C) motion for judgment on the pleadings. In support, she argues that Gura is

immune from liability, and Johnson-Newberry has failed to plead any set of facts

supporting an exception to immunity. Specifically, Gura argues that R.C. 4112.02(J)

does not expressly impose civil liability to an employee of a political subdivision and

does not constitute an exception to immunity.

Civ.R. 12(C) permits any party to move for judgment on the pleadings

“[a]fter the pleadings are closed but within such times as not to delay the trial.” A

motion for judgment on the pleadings, “which has been characterized as a belated

Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can be granted,”

presents solely questions of law. Whaley v. Franklin Cty. Bd. of Commrs.,

,

,

; Shingler, 8th Dist. Cuyahoga No.

106383,

. Similar to a Civ.R. 12(B)(6) motion to dismiss, the factual allegations of the complaint are taken as true; however, unsupported legal

conclusions are insufficient. Tate v. Garfield Hts., 8th Dist. Cuyahoga No. 99099,

.

The consideration of a motion for judgment on the pleadings is

restricted solely to the allegations in the pleadings and any writings attached to the

pleadings. Peterson v. Teodosio,

,

(1973).

Dismissal under Civ.R. 12(C) is appropriate where, after construing all material

allegations in the complaint, with all reasonable inferences drawn therefrom in favor

of the nonmoving party, the court finds that the plaintiff can prove no set of facts in

support of its claim that would entitle it to relief. State ex rel. Midwest Pride IV, Inc.

v. Pontious,

,

,

. Therefore, a

motion for judgment on the pleadings “requires a determination that no material

factual issues exist and [] the movant is entitled to judgment as a matter of law.”

citing Burnside v. Leimbach,

,

(10th

Dist. 1991).

We review a trial court’s decision on a motion for judgment on the

pleadings de novo. Drozeck v. Lawyer Title Ins. Corp.,

,

(8th Dist. 2000).

In her complaint, Johnson-Newberry, an African-American, alleged

that she was discriminated against by her employer, CCDCFS, because of her

disability and her race. Johnson-Newberry claims that Gura, Johnson-Newberry’s

Caucasian supervisor, treated her differently than the Caucasian social workers, did not provide Johnson-Newberry with the same training as the Caucasian social

workers, “belittled” Johnson-Newberry for not following procedures on which she

was never trained, and “spoke down” only to Johnson-Newberry.

According to the complaint, Johnson-Newberry complained about

the alleged discrimination to Gura’s supervisor, Bill Mench, and after Mench shared

Johnson-Newberry’s complaints with Gura, Gura’s treatment of Johnson-Newberry

worsened. In a written complaint about Gura to Mench, Johnson-Newberry alleged

that she believed Gura mistreated her “because I am black.” The complaint alleged

that Gura’s treatment caused Johnson-Newberry severe anxiety that substantially

limited major life activities, including work, and Gura’s treatment resulted in

Johnson-Newberry taking a seven-week medical leave. Johnson-Newberry was

terminated approximately two months after returning to work from medical leave.

In her fourth cause of action, “Aiding and Abetting in Violation of R.C.

4112.02(J),” Johnson-Newberry specifically alleged that “in failing to provide

necessary training to Johnson-Newberry” and “in terminating Johnson-Newberry,”

Gura aided and abetted CCDCFS in unlawful discrimination based on race,

disability, and in retaliation based on Johnson-Newberry’s R.C. Chapter 4112

protected activity. The issue on appeal is whether Gura is entitled to immunity for

Johnson-Newberry’s allegation of aiding and abetting pursuant to R.C. 4112.02(J).

R.C. 4112.02(A) makes it

an unlawful discriminatory practice * * * [f]or any employer, because of the race, color, * * * [or] disability * * * of any person, to discharge without just cause * * * or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.

An “employer” includes “the state, any political subdivision of the state, * * * and any

person acting directly or indirectly in the interest of an employer.”

R.C. 4112.01(A)(2).

R.C. 4112.02(J) makes it unlawful for

any person to aid, abet, incite, compel, or coerce the doing of any act declared by this section to be an unlawful discriminatory practice, to obstruct or prevent any person from complying with this chapter or any order issued under it, or to attempt directly or indirectly to commit any act declared by this section to be an unlawful discriminatory practice.

To “aid and abet,” an individual must actively participate in, or otherwise facilitate, another’s discriminatory act in violation of R.C. 4112.02. Pittman v. Parillo, 6th Dist. Lucas No. L-16-1140, 2017- Ohio-1477, ¶ 25. The statute defines “person” as one or more individuals, partnerships, associations, organizations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers, and other organized groups of persons * * * [as well as] the state and all political subdivisions, authorities, agencies, boards, and commissions of the state.

R.C. 4112.01(A)(1).

R.C. 2744.03 provides an employee of a political subdivision

immunity from tort liability, with three exceptions:

(a) The employee’s acts or omissions were manifestly outside the scope of the employee’s employment or official responsibilities;

(b) The employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;

(c) Civil liability is expressly imposed upon the employee 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 an employee, because that section provides for a criminal penalty, because of a general authorization in that section that an employee may sue and be sued, or because the section uses the term “shall” in a provision pertaining to an employee.

R.C. 2744.03(A)(6).

Gura contends that Johnson-Newberry cannot maintain a claim

against her personally for a violation of R.C. 4112.02, stating that Gura cannot “aid

and abet” her own employer, and even if this claim is available, Gura is immune from

liability. Thus, the issue is whether R.C. 4112.02(J) “expressly” imposes civil liability

upon Gura and, therefore, qualifies as an exception to immunity. Two Ohio

Supreme Court cases are relevant to our discussion concerning the application of

R.C. 4112.02(J) to Gura and immunity: Genaro v. Cent. Transport, Inc.,

,

(1999); and Hauser v. Dayton Police Dept.,

,

,

(2014).

In Genaro, the Supreme Court determined that an individual

supervisor or manager may be liable for employment discrimination. The court held

that “a supervisor/manager may be held jointly and/or severally liable with her/his

employer for discriminatory conduct of the supervisor/manager in violation of R.C.

Chapter 4112.”

. Gura claims that Genaro is a nearly two-decades

old, “deeply divided” case and its “continuing validity” has been repeatedly

questioned by federal courts. Gura argues, rather, that the Supreme Court’s holding

in

applies here to bar Johnson-Newberry’s claim. In 2014, the Ohio Supreme Court in Hauser held that

R.C. 4112.01(A)(2) and 4112.02(A) do not “expressly impose” civil liability on

political subdivision employees so as to trigger the immunity exception in

R.C. 2744.03(A)(6)(c).

. The Hauser court therefore concluded that

employees of political subdivisions could not be held individually liable for

discrimination because they are immune under R.C. 2744.03. Id.; Musarra v. Univ.

Hosps. Physician Servs., N.D.Ohio No. 1:18CV959,

, 5

(Jan. 24, 2019). The court in Hauser distinguished its decision in Genaro, stating

that Genaro “involved private-sector supervisors and managers and it asked only

whether such persons may be jointly and severally liable with an employer for

conduct ‘in violation of R.C. Chapter 4112.’”

, citing

. The court in Hauser further stated that Genaro “did not squarely address the

immunity question at issue here,” and therefore, was “not binding authority” in the

Hauser case.

There is no dispute that CCDCFS is a political subdivision and

therefore Hauser would apply in this employment context. However, the Hauser

decision applies only to the provisions concerning “employer” discrimination. “We

underscore * * * that our conclusion is limited to provisions dealing with ‘employer’

discrimination, R.C. 4112.01(A)(2) and 4112.02(A).” Hauser,

,

,

. And the court specifically stated, in dicta,

that “[a]n individual political-subdivision employee still faces liability under other provisions of R.C. 4112.02 that expressly impose liability, including the aiding-and-

abetting provision in R.C. 4112.02(J).” (Emphasis added.)

The court explained:

Even though R.C. 4112.02(A) imposes liability only upon an “employer,” the General Assembly knows how to expressly impose liability on individuals, and it has done so elsewhere in R.C. 4112.02. For example, ever since it first enacted R.C. Chapter 4112 in 1959, the General Assembly has declared it unlawful for “any person” to “aid abet, incite, compel[,] or coerce the doing of * * * an unlawful discriminatory practice” or to “attempt directly or indirectly to commit any act” constituting “an unlawful discriminatory practice.” Former R.C. 4112.02(H) (enacted by Am.S.B. No. 10, 128 Ohio Laws 12, 14), now codified as R.C. 4112.02(J). * * * [A]n examination of R.C. 4112 reveals that when the General Assembly imposes individual liability for discriminatory practices, it does so expressly. If we were to conclude that the employer-discrimination provision in R.C. 4112.02(A) expressly imposes liability on employees, we would render the aiding-and-abetting provision in R.C. 4112.02(J) largely superfluous. That provision already holds individual employees liable for their participation in discriminatory practices.

.

Thus, according to Hauser, R.C. 4112.01(A)(2) and 4112.02(A), which

concern the discriminatory acts of an employer, do not expressly impose civil

liability on political subdivision employees so as to trigger the immunity exception

set forth in R.C. 2744.03(A)(6)(c). R.C. 4112.02(J), however, specifically applies to

a “person,” making it unlawful for “any person to aid, abet, incite, compel, or coerce

the doing of any” discriminatory act. That provision therefore expressly imposes

liability upon an individual that would include an employee of a political

subdivision. While the statutory provision may not have intended to encompass a

supervisor as a person that “aids and abets” their employer in an alleged

discriminatory act, if the legislature intended to exempt political subdivision employees, including superiors, from civil liability pursuant to R.C. 4112.02(J), the

legislature could have narrowed the definition of a “person.” Accordingly, we are

constrained to find the exception to immunity set forth in R.C. 2744.03(A)(6)(c)

applies to Gura for alleged violations of R.C. 4112.02(J).

Gura contends that the Supreme Court’s language concerning

personal liability under R.C. 4112.02(J) is dicta and the case was decided by a

fragmented court and therefore should be disregarded. Although we agree that the

Hauser court’s discussion concerning R.C. 4112.02(J) is not the holding of the court,

we find guidance in the court’s discussion.

We are mindful that R.C. Chapter 4112 is a remedial statute and courts

should liberally construe the statute “to promote its purpose of eliminating

discrimination.” Woodworth v. Time Warner Cable, Inc., N.D.Ohio No. 1:15 CV

1685,

, 6 (Nov. 2, 2015), citing Elek v. Huntington

Natl. Bank,

,

(1991). Acknowledging this

purpose, we consider the intentional difference in the language the General

Assembly used in enacting R.C. 4112.02(A) and 4112.02(J), as noted in Hauser, and

we recognize that other courts, implicitly or explicitly, followed Hauser’s reasoning

concerning R.C. 4112.02(J). See Moore v. Cuyahoga Cty., N.D.Ohio No. 1:16 CV

3068,

, 18-19 (July 27, 2017), report and

recommendation adopted by Moore v. Cuyahoga Cty., N.D.Ohio No. 1:16 CV 3068,

(Sept. 18, 2017) (concluding that, in light of Hauser,

the political subdivision employees were not entitled to dismissal of the plaintiff’s R.C. Chapter 4112 claim simply because they are individuals); see also Rosecrans v.

Wellington, N.D.Ohio No. 1:15CV0128,

, 10 (Jan. 14,

2016) (acknowledging that Hauser recognized that R.C. 4112.02(J) imposes liability

on employees for aiding and abetting discrimination); Woodworth (following

Hauser in concluding “the fact that R.C. 4112.02(J) applies to ‘any person’ indicates

the legislature’s intent that the statute be applied more broadly than R.C.

4112.02(A).”); Musarra, N.D.Ohio No. 1:18CV959,

, at

8 (noting that Genaro’s holding that individual supervisors and managers may be

held liable under R.C. Chapter 4112 remains good law and Hauser “merely created

an exception that applies when the immunity provision in R.C. 2744.03(A)(6)(c) is

invoked”). Accordingly, we find Hauser’s statements that R.C. 4112.02(J) expressly

imposes liability on an individual political subdivision employee to be persuasive.

Here, Johnson-Newberry’s fourth cause of action alleges that Gura, in

violation of R.C. 4112.02(J), aided and abetted the unlawful discrimination of Gura’s

employer, CCDCFS, (1) by failing to provide the necessary training to Johnson-

Newberry; and (2) in terminating Johnson-Newberry on the basis of her race or

disability, or in retaliation for making complaints about race discrimination.

R.C. 4112.02(J) makes it unlawful for “any person” to participate in another’s

discriminatory practices. Because R.C. 4112.02(J) expressly imposes liability on the

employee of a political subdivision, the immunity exception in

R.C. 2744.03(A)(6)(c) applies and Gura is not immune to Johnson-Newberry’s

claim under the aiding-and-abetting provision of the statute. Accordingly, in construing all material allegations in the complaint in

favor of the nonmoving party, we find that Gura failed to demonstrate that Johnson-

Newberry could prove no set of facts in support of her claim for aiding and abetting

under R.C. 4112.02(J) that would entitle her to immunity at this stage of the

proceeding. The trial court therefore properly denied Gura’s Civ.R. 12(C) motion for

judgment on the pleadings.

Gura’s first assignment of error is overruled.

Judgment affirmed in part and dismissed in part.

It is ordered that appellee recover from appellant 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.

___________________________ MICHELLE J. SHEEHAN, JUDGE

ANITA LASTER MAYS, J., CONCURS; SEAN C. GALLAGHER, P.J., CONCURS WITH SEPARATE OPINION ATTACHED

SEAN C. GALLAGHER, P.J., CONCURRING:

I fully concur with the majority’s decision, although I believe the

immunity issue is one the Supreme Court of Ohio may wish to address. With regard to the immunity issue, I agree with the majority that the

allegations in the complaint and amended complaint, accepted as true, are sufficient

to state a claim for aiding and abetting the alleged discrimination. Whether

appellant will ultimately prevail on the claim is not a consideration before us, and

the merits of the claim remain to be determined in the trial court. I also agree with

the majority’s analysis of Genaro,

,

,

; and Hauser,

,

,

. Although

Hauser is not controlling, other courts have found the reasoning persuasive and

determined that R.C. 4112.02(J) provides for a claim of this type against an

individual employee in an employment discrimination case. See Bower v.

Metroparks of Butler Cty., S.D.Ohio No. 1:18-CV-00791,

, 23-27 (June 11, 2019); Markins v. S.W. Airlines Co., N.D.Ohio No. 5:17-CV-

793,

, 7-8 (Sept. 13, 2017); Moore v. Cuyahoga Cty.,

N.D.Ohio No. 1:16-CV-3068,

, 18 (July 27, 2017).

Appellant raises a compelling argument against imposing individual

liability under R.C. 4112.02(J). Appellant also argues that the issue was not central

to the resolution of the certified conflict in Hauser and there was no majority

supporting the reasoning expressed in Hauser. Nonetheless, because several federal

courts have agreed with the reasoning in Hauser, I am inclined to agree with the

majority decision. Because the issue has not been firmly decided by the Supreme

Court of Ohio, it may wish to consider the issue.