Opinion
CASE NO. 5:09 CV 315.
June 18, 2010
MEMORANDUM OPINION
I. Introduction
The plaintiff has filed a second amended complaint seeking money damages from the defendant Kent State University and two employees of Kent State University, Tiffany Murray and David Odell-Scott. (Doc. 22). The plaintiff alleges that he has been an employee of defendant Kent State as a Professor of Philosophy since January of 1974, and that he has been subjected to violation of his First Amendment rights, his right to due process and the deprivation of liberty. Continuing, the plaintiff alleges that he spoke on matters of public academic concerns, such as whether another professor should be promoted, and that as a result of his speech, he has been sanctioned.
Specifically, in his amended complaint in paragraph 18, the plaintiff alleges:
The sanction consisted of requiring that Plaintiff attend an adaption session on racism with the Affirmative Action Office, removing Plaintiff until 2012 from all Ad Hoc Committees, some of which involved voting on candidates of lower rank; taking away his graduate facility status so that he would have no participation in the graduate program and was barred from teaching classes which he had taught since 1974; increasing his course load to maximum until 2012 and taking away his course release until 2012, a release that enabled him to do scholarship since 1974. The sanction also including [sic] placing in his permanent employment file Defendant Murray's February 13th, 2007 letter. Said sanction severely damaged Plaintiff's career as a graduate teacher and had chilling effect on all future exercise of Plaintiff's free speech rights and academic freedom.
Counsel for the defendants has filed a motion for summary judgment (Doc. 28) contending that the plaintiff's separate complaint in the Court of Claims for Ohio alleging similar facts constitutes a waiver of his right to damages in this case.
The Court attaches a copy of the plaintiff's complaint in the Court of Claims as Appendix I. In the action in the Ohio Court of Claims, the plaintiff names Kent State University and, as individual defendants, Deborah C. Smith, Tiffany Murray and David Odell-Scott.
The name in the complaint in the Court of Claims is listed as Fisher which is in contrast to the plaintiff's name as set forth in the complaint in this case, Fischer. The Court expresses no opinion as to which spelling of the plaintiff's last name is correct, but the Court finds that regardless of the spelling, the plaintiff in this case is the same person that is the plaintiff in the Ohio Court of Claims.
In paragraphs six and seven, the plaintiff alleges as follows:
6. Defendants Smith, Murray and Odell Scott knowingly made false and malicious statement to Plaintiff's colleagues and peers labeling him a racist and creating a hostile workplace.
7. Defendant Kent State intentionally violated Ohio Revised Code Section 1347.10 by intentionally using and withholding Plaintiff's information regarding Defendant Murray, Defendant Smith and Defendant Odell-Scott's statements labeling him a racist and creating a hostile workplace.
Thereafter, the plaintiff alleged the intentional infliction of emotional distress in Count I, defamation in Count II, a violation of Ohio Revised Code § 1347.10 in Count III, and a violation of Ohio Revised Code 149 in Count IV.
In the plaintiff's second amended complaint in this action, the following declaration is contained:
1. Plaintiff is a citizen of the United States and a resident of the City of Kent, Ohio, with claims of violation of First Amendment rights, violation of Due Process, and deprivation of liberty against Defendants. (Plaintiff has filed a similar action in the Ohio Court of Claims and is in the process of dismissing that action. (Emphasis added).
II. The Defendants' Motion for Summary Judgment
The defendants contend, in support of their motion for summary judgment, that the act of the plaintiff filing a separate cause of action in the Ohio Court of Claims constitutes a complete waiver of his right to proceed against Kent State University and its employees in this court.The plaintiff's brief in opposition for the motion for summary judgment (Doc. 31) does not address the issue of waiver.
III. Conclusion
Ohio Revised Code Section 2743.02(a)(1) provides in relevant part as follows:
Filing a civil action in the Court of Claims results in a complete waiver of any cause of action, based on the same act or omission, which the filing party has against any officer or employee, as defined in Section 109.36 of the Revised Code. The waiver shall be void if the Court determines that the act or omission was manifestly outside the scope of the officer's or employee's office or employment or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner.
The defendants' reliance on the decision in Leaman v. Ohio Dept. Mental Retardation Developmental Disabilities, 825 F.2d 946 (6th Cir. 1987) (en banc), cert. denied 487 U.S. 1204 (1988) supports the defendants' motion for summary judgment.
As indicated in the defendants' motion for summary judgment, whether the plaintiff's action in the Ohio Court of Claims is dismissed or still pending is irrelevant, as the waiver is complete upon filing. See Higginbotham v. Ohio Dep't of Mental health, 412 F. Supp.2d 806, 812 (S.D. Ohio 2005), where the court held:
According to Plaintiff, because she first filed with the Court of Claims, voluntarily dismissed, and then filed in federal court, Leaman does not apply. While Plaintiff's case does differ from that in Leaman in this respect, neither the court in Leaman nor Ohio Rev. Code § 2743.02 in any way restricts its application to those situations in which a plaintiff has filed in the Court of Claims and federal court simultaneously. Therefore, Plaintiff's filing in the Court of Claims constituted a complete waiver of any state or federal claims against the individual employees.
The Court finds that the allegations in plaintiff's complaint in this case and the allegations in the plaintiff's action in the Ohio Court of Claims are similar, and as a consequence, the defendants' motion for summary judgment must be granted.
In granting summary judgment on the basis of waiver, the Court makes no ruling on the merits of plaintiff's complaint.
IT IS SO ORDERED.
APPENDIX I
IN THE COURT OF CLAIMS COMPLAINT JURY DEMAND
NORMAN FISHER CASE NO. 2009-02278 123 Linden Kent, Ohio 44240 Plaintiff, vs. KENT STATE UNIVERSITY 500 E. Main JUDGE JOSEPH T. CLARK Kent, Ohio 44242 and DEBORAH C. SMITH C/O Kent State University 500 E. Main Kent, Ohio 44242 and TIFFANY MURRAY C/O Kent State University 500 E. Main Kent, Ohio 44242 and DAVID ODELL-SCOTT C/O Kent State University 500 E. Main Kent, Ohio 44242 Defendants. Now comes the Plaintiff, by and through undersigned counsel, and for his Complaint states as follows:1. Defendant Kent State University, (Hereinafter referred as "Defendant Kent State") are employers within the State of Ohio with a principal place of business located in Kent, Ohio and is an "employer" as defined by Ohio Revised Code Section 4112.01(A)(2).
2. Defendant, Debra Smith (Hereinafter referred as "Defendant Smith") in a resident of the City of Kent, County of Portage and State of Ohio.
3. Defendant, Tiffany Murray (Hereinafter referred as "Defendant Murray") in a resident of the City of Kent, County of Portage, and State of Ohio.
4. Defendant, David Odell-Scott (Hereinafter referred as "Defendant Odell-Scott") is a resident of the City of Kent, County of Portage and State of Ohio.
5. Plaintiff, Norman Fisher, (Hereinafter referred as "Plaintiff") is a resident of the City of Kent, County of Portage and State of Ohio.
6. Defendants Smith, Murray and Odell Scott knowingly made false and malicious statement to Plaintiff's colleagues and peers labeling him a racist and creating a hostile workplace.
7. Defendant Kent State intentionally violated Ohio Revised Code Section 1347.10 by intentionally using and withholding Plaintiff's information regarding Defendant Murray, Defendant Smith and Defendant Odell-Scott's statements labeling him a racist and creating a hostile workplace.
8. As a result of the Defendant's actions, Plaintiff has been harmed.
9. That such accusations effected the Plaintiff's employment.
COUNT I
(Intentional Infliction of Emotional Distress)
10. As a further and separate cause of action Plaintiff states as follows:
11. The allegations of Paragraphs 1 through 10 are herein incorporated by reference.
12. Defendants' actions against the Plaintiff resulted in the intentional infliction of emotional distress on Plaintiff.
13. As a direct and proximate result of Defendant's actions, Plaintiff has suffered injury, damage, and loss.
COUNT II
(Defamation)
14. As a further and separate cause of action Plaintiff states as follows:
15. The allegations of Paragraphs 1 to 14 are herein incorporated by reference.
16. Plaintiff restates all of the foregoing as if fully rewritten herein and states further that Defendants knowingly made false statements to others causing injury to Plaintiff's reputation and adversely affecting him in his trade or business. Specifically, Defendants labeled Plaintiff as a racist and as creating a hostile workplace.
17. As a direct and proximate result of Defendants' actions, Plaintiff has suffered injury, damage and loss including emotional distress.
COUNT III
(Violation of Ohio Revised Code 1347.10)
18. The allegations of Paragraphs 1 to 17 are herein incorporated by reference.
19. Plaintiff restates all of the foregoing as if fully rewritten herein and states further that Defendants intentionally maintained personal information that they knew or had reason to know is inaccurate, irrelevant, no longer timely, or incomplete that resulted in harm to the Plaintiff.
20. Plaintiff states the Defendants intentionally used or disclosed the personal information in a manner prohibited by law.
21. Plaintiff states that the Defendants intentionally supplied personal information for storage in, or used or disclosed personal information maintained in, a personal information system, that they knew or had reason to know is false.
22. Plaintiff states the Defendant's intentionally denied the Plaintiff the right to inspect and dispute the personal information at a time when inspection or correction might have prevented the harm.
23. As a direct and proximate result of Defendants' actions, Plaintiff has suffered injury, damage and loss including emotional distress.
COUNT IV
(Violation of Ohio Revised Code 149)
24. The allegations of Paragraphs 1 to 23 are herein incorporated by reference.
25. Plaintiff restates all of the foregoing as if fully rewritten herein and states further that Defendants violated Ohio Revised Code 149.
26. As a direct and proximate result of Defendants' actions, Plaintiff has suffered injury, damage and loss including emotional distress.WHEREFORE, Plaintiff demands judgment for compensatory damages against the Defendants jointly and severally in a sum in excess of Twenty Five Thousand Dollars ($25,000.00); for punitive damages as determined at trial, together with reasonable attorney fees, interest according to law and the costs of this action. GERALD D. PISZCZEK CO., L.P.A Respectfully submitted, _________________________________ Eric D. Hall (#0067566) 412 North Court Street Medina, Ohio 44256 (330) 723-2200 Attorneys for Plaintiff