Update: On June 26, 2019, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

On March 5, 2019, the Supreme Court of Ohio heard oral argument in Marcella King Piazza v. Cuyahoga County, et al., 2017-1649. At issue in the case is whether the immunity exception allowing civil claims against a political subdivision extends to actions brought after the employee has been terminated by the political subdivision. Second District Court of Appeals Judge Jeffrey Froelich sat for Justice Stewart, who participated in the appellate decision while on the Eighth District Court of Appeals.

Case Background

In 2003, Marcella King Piazza (“Piazza”) began working for the Cuyahoga County auditor’s office. Piazza was later transferred to the County Boards of Revision where she worked as office manager. Subsequently, in August 2010, Piazza was transferred to the Department of Justice Affairs where she worked as a victim advocate. Around the time Piazza was transferred to the Department of Justice Affairs, the Plain Dealer Publishing Company (“Plain Dealer”) began publishing a series of articles about the scandal at the Boards of Revision which cost taxpayers over $400 million, claiming that an investigation was underway into the work habits, favoritism, and mismanagement of the department.

In March 2011, Piazza was terminated from employment with the county. Within two hours of Piazza’s discharge, the Plain Dealer published an online article headlined, “Cuyahoga County Executive Ed FitzGerald fires three employees tied to the boards of revision scandal.” One of those fired employees was Piazza, who had in fact never been disciplined or cited for poor work habits and had no authority over any Board member. Further articles identified Piazza by name, included her photo, and again implied she was part of the Boards of Revision corruption scandal.

In 2015, Piazza filed a complaint against Cuyahoga County (“the County”) and the Plain Dealer alleging false light invasion of privacy. The allegation stemmed from quoted statements of County Executive FitzGerald which Piazza claimed were made with a reckless disregard for the truth or falsity of his statements. The County moved for summary judgment pursuant to R.C. 2744.02. The County also alleged that Piazza’s claim was time-barred. The trial court denied the County’s motion, finding the false light claim was not time-barred nor covered by immunity. The County appealed.

On appeal, the Eighth District, in an opinion authored by Judge Kathleen Keough and joined by Judge Mary Boyle, affirmed the denial of summary judgment. According to the majority, the County is not entitled to political subdivision immunity under R.C. 2744.02 because R.C. 2744.09 (B) precludes immunity when a civil suit involves matters related to the employment relationship, and Piazza’s claims arose out of her employment relationship with the County. The appeals court did not consider the statute of limitations ruling because it was not a final appealable order.

Then-Judge Melody Stewart concurred in part and dissented in part, with an opinion.  She agreed with the majority’s conclusion about the statute of limitations, but not about the false light claim. Judge Stewart interpreted the statutory use of the word “employee” as meaning a person currently employed by the relevant political subdivision. Therefore, the County should be able rightfully to claim immunity from Piazza’s suit because she was not an employee of the County when the county executive’s statements were made.

Read the oral argument preview here.

 Key Statutes and Precedent

R.C. 2744.02 (Political Subdivision Immunity)

R.C. 2744.09(B) (Exceptions to Immunity) (Political Subdivision Immunity shall not extend to civil actions by an employee against his or her political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision.)

Fleming v. Ashtabula Area City Schools Board of Education, 2008-Ohio-1892 (11th Dist.) (A person need not be a current employee at the time claims were filed against a political subdivision to qualify for the political subdivision immunity exception.)

Sampson v. Cuyahoga Metropolitan Housing Authority, 2010-Ohio-3415 (Intentional tort claims can arise out of the employment relationship with respect to R.C. 2744.09(B). To succeed, a claim must show a causal connection between the tort and the employment relationship. Direct causation is not necessary; indirect causation is sufficient.)

George v. Newburgh Heights, 2012-Ohio-2065 (8th Dist.) (Totality of the circumstances review requires examining events that occurred while a person was employed by the political subdivision and after the employment relationship is terminated.)

Vacha v. City of North Ridgeville, 2013-Ohio-3020 (To determine whether a causal connection exists the court must examine the totality of the circumstances. If no connection exists, political subdivision immunity is appropriate.)

County’s Propositions of Law Accepted for Review

Proposition of Law 1

The language of Ohio Rev. Code §2744.09(B) is clear, concise, and unambiguous and in derogation of common law immunity and must be strictly constructed in keeping with the definition of employee and employment relationship as set forth in the Ohio Revised Code.

Proposition of Law 2

A former employee of a political subdivision who brings an intentional tort claim that accrues after he or she is no longer an employee of the governmental entity is not an “employee” covered under Ohio Rev. Code §2744.09(B).

Proposition of Law 3

Construing Ohio Rev. Code §2744.09 as it is written is in keeping with this Court’s decision in Sampson v. Cuyahoga Metro Hous. Auth., 131 Ohio St.3d 418 (2012) and Vacha v. City of N. Ridgeville, 136 Ohio St.3d 199 (2013) in that the intentional tort at issue in Sampson and Vacha accrued while plaintiffs were employed by the political subdivision and arose out of the employment.

At Oral Argument

Arguing Counsel

Awatef Assad, Assistant Director of Law, Cuyahoga County Department of Law, for Appellant Cuyahoga County.

Nancy C. Schuster, Schuster & Simmons Co., L.P.A., Cleveland, for Appellee Marcella King Piazza

County’s Argument

In order to meet the requirement of the plain language of R.C. 2744.09(B), an employee must be employed at the time the alleged actions accrued in order to bring a claim against a political subdivision. Otherwise, former employees will be able to file actions against political subdivisions in perpetuity, rendering immunity meaningless. Under a strict reading of 2744.09(B), and pursuant to Vacha and Sampson, if the claim doesn’t arise out of the employment relationship, then the political subdivision cannot be sued.

The actions complained about here do not arise out of employment. They arise out of an article that was written by an independent third-party actor, the Cleveland Plain Dealer, over which the County had no control whatever. What Ms. Piazza is complaining about is the perceived implication of the statements and how the article was written, not the statements per se. Ms. Piazza  acknowledges that the County never called her a corrupt employee and she accepts the reasons for her termination, which was based on a reduction in the work force. There is no cause of action here. Ms. Piazza argues for the creation of a non-existent duty on the County to correct the perceived implication created in the Plain Dealer article.

In this case, there is simply no cause of action; there is no claim that arises out of the employment relationship.

Piazza’s Argument

R.C. 2744.09 could not be clearer. Immunity does not apply to civil actions by an employee of the political subdivision against the political subdivision relative to wages, hours, and terms and conditions of employment. There’s no question that Ms. Piazza was in fact an employee. We don’t know exactly when the press release was prepared or exactly when it was sent to the Plain Dealer, although we do know that Ms. Piazza was still at her desk in the Justice Affairs Department of the County. We do know that after she was notified of her termination, she went back to her desk, and while she was sitting at her desk in the Department of Justice Affairs, she was phoned by a Plain Dealer reporter seeking comments, which she refused to give. While the paper could not reach the other two employees who had been terminated, they were able to reach Ms. Piazza because she was still in her office at the Department of Justice Affairs when they called.

Why did the County put out a press release when this victim advocate at the Department of Justice Affairs was terminated? To show the public it was taking action over its own corruption scandal. In addition to the press release, the new county executive, Ed Fitzgerald, made a statement in which he said that the previous administration had simply transferred these “bad people” but that his administration had gotten rid of them. The intent of that statement was to show that under its new leadership, the County was now acting against the corruption scandal.  Later that day, after two of the articles had been published, the Plain Dealer emailed the county asking for photographs, and about twenty minutes later the County sent Ms. Piazza’s picture from her personnel file to the paper for use in later articles.  To be absolutely clear, the County has been sued because of the County’s own activities, not because of the Plain Dealer’s activities that followed on.

As for the County’s argument about limitless liability here, statutes of limitations still apply, so public employers do not face limitless liability by virtue of R.C. 2944.09. And defining an employee as only a current employee adds a word to the statute that’s not there.

In this case there is certainly a causal connection between the claims and the employment relationship. In fact, as the 8^th district said, there was no relationship between Piazza and the County except her employment relationship, as required by Sampson. This case would not be here but for Ms. Piazza’s employment relationship.

What Was On Their Minds

Employee At Time of Accrual or At Time Claim Filed?

Justice DeWine got into a relentless exchange with Ms. Assad about this. Must the employee be employed when the cause of action accrued, he asked? What about when they file the lawsuit? Is there a factual question here whether or not Ms. Piazza was still an employee at the time the statements were made? How do we know what time the statements were made to the Plain Dealer? We know what time the story was published, but we don’t know what time the County made the statements to the paper, do we? Do we know whether those statements were made before or after she was terminated? Is that clear from this record? We are not here on whether or not these statements were defamatory, he commented. We are here on whether or not within the meaning of the statute, they arise out of her employment. So my question is, can we tell from this record if these statements were made before or after she was terminated? If you don’t know just say you don’t know, he said to Ms. Assad. (ouch!) I wasn’t asking about when the article was published, he said. I was asking if the statements were made before or after her termination. That’s all. (final answer from Ms. Assad: “I don’t believe they were made before her termination, but I don’t know for sure.”)

In this case, theoretically, if Cleveland.com had printed the alleged statements one hour before termination, that would have allowed a remedy, but if they occurred one hour after termination, they wouldn’t have a remedy, asked Justice Donnelly? Might there be a factual scenario where someone left the County, and went into the private sector, and then the County in some type of forum was commenting on something that may be totally defamatory about their work life when they were employed. Under the County’s interpretation, that person would not have any remedy because they were no longer an employee?

If the statement came a year later that “we fired this person because she was a thief,” does that alleged defamation arise out of the employment relationship asked Judge Froelich? If a private employer were to make that statement a year later, could she sue for defamation in that case? Later, he said to Ms. Schuster that she was suggesting that the defamatory statement may have been made while Ms. Piazza was still employed because she was at her desk, but was that relevant to her legal argument and the proposition the Court accepted? The County is arguing both that the action must be filed and it must accrue while the person is still a current employee.  Do you disagree with both of those? (Ms. Schuster disagreed with both). So the factual issue of when it actually occurred is not relevant for your legal argument?

Sampson and Vacha

Neither Sampson nor Vacha was employed at the time they filed their lawsuits, were they, asked Judge Froelich?

How It Looks From The Bleachers

To Professor Emerita Bettman

Like an outright win for Piazza, whether or not she was still employed at the time the allegedly false statements were made by the County.  Either way, her claim arose from her employment relationship with the County and the causal connection was clearly there, too. Ms. Assad, who stated that this was her first argument before the high court, was like a deer in the headlights, constantly having to stop and regain her composure.  And Justice DeWine pounded on her mercilessly about whether the County was arguing that the statements attributable to the County were made before or after Piazza was fired. She did stick to her position tenaciously that an employee must be employed at the time the alleged actions accrued. But I don’t think she’s going to find much, if any, support for that position. She may not even get a single vote. And she seemed palpably relieved to sit down after the first part of her argument was done.

The very smooth Ms. Schuster got only one question during her entire argument.  Normally, weaving as much factual detail as she did isn’t effective in appellate arguments, but in this case it was, and was very helpful.

As a torts professor I was intrigued by the tort of false light invasion of privacy, and always looking for some good examples of the tort, which were hard to find. While still dealing only with allegations, this really looks like it is right on the money.

To Student Contributor Paul Taske

This is perhaps one of the most lopsided arguments I have ever seen in terms of engagement from the bench. This case seems like a clear win for Piazza. I would be unsurprised if the decision unanimously affirms the lower court.

It was evident during the County’s argument that the justices were uncomfortable adopting the County’s reading of the statute, particularly the County’s argument that for a successful claim to be brought against a political subdivision a person must still be employed at the time a claim accrues and at the time of filing. The justices, particularly Justice DeWine, also found issue with the County’s timeline of events and the timeline’s application to the legal argument.

What was particularly stunning was the fact that Piazza’s lawyer got through half of the argument without getting a single question.  Ms. Schuster presented her entire legal argument and then presented the factual basis behind the case. When she was interrupted it was simply for a request to tie the facts back to the legal argument. There was no fundamental questioning of Ms. Schuster’s presentation. While these factors are not always determinative of the outcome, when viewed in context of the whole argument, tone of the justices’ questions, and other factors it seems clear that Piazza came out on top here.