Franks v. Village of Bolivar et al

Filing 12

Memorandum Opinion and Order: The Court grants in part Defendants' motion for partial judgment on the pleadings, and dismisses Counts III and IV of the complaint, as well as Plaintiff's claim for punitive damages as against the Vill age and Hubble in her official capacity. The Court denies Defendants' motion for judgment on Count I and denies without prejudice to refiling, Defendants' motion with respect to Count V. (Related Doc # 7 ). Judge Sara Lioi on 11/18/2011. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
GARY FRANKS,
PLAINTIFF,
vs.
VILLAGE OF BOLIVAR, et al.,
DEFENDANTS.

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CASE NO. 5:11CV701

JUDGE SARA LIOI

MEMORANDUM OPINION &
ORDER

Before the Court is a motion for partial judgment on the pleadings pursuant to
Fed. R. Civ. P. 12(c) filed by Defendants Village of Bolivar (the “Village”) and Rebecca Hubble
(“Hubble”) (collectively “Defendants”). (Doc. 7.) Plaintiff Gary Franks (“Plaintiff” or “Franks”)
has filed an opposition brief (Doc. 8) to Defendants’ motion, to which Defendants have filed a
reply (Doc. 9). In their motion, Defendants seek judgment on four of Plaintiff’s claims as well
his claim for punitive damages. This matter is ripe for disposition. For the following reasons, the
motion is GRANTED in part and DENIED in part.
I.

BACKGROUND
This case arises out of the employment and subsequent termination of Franks by

the Village of Bolivar and its Mayor Rebecca Hubble. Franks had been employed as the Water
and Street Superintendent for the Village of Bolivar for 33 years. (Doc. 1-2, Compl. at ¶ 8.) His
employment was for a yearly-appointed term, commencing January of each calendar year and
ending at the end of the calendar year. (Compl. at ¶ 9.) Franks alleges that, because Defendants
had not terminated him or stripped him of his supervisory status by the end of 2010, he was
effectively reappointed to his position as Superintendent as of January of 2011. (Compl. at ¶ 17.)

As of February 7, 2011, the Village Council had voted not to appoint Franks as the
Superintendent for 2011, and he was terminated soon thereafter, on February 21, 2011.1 (Compl.
at ¶¶ 18 & 21.) Before the date of his termination, Franks alleges that he had continued to
perform his duties, and that he was paid at the same rate he had previously been paid as a
Superintendent. (Compl at ¶¶ 13-16.)
On March 27, 2011, Franks filed his complaint for relief under 42 U.S.C. § 1983
in the Tuscarawas County Court of Common Pleas. (Doc. 1-2.) Franks asserts five counts in his
Complaint for age discrimination, retaliatory discharge, breach of contract, abuse of power and
intentional infliction of emotional distress.
On April 8, 2011, Defendants removed the action to this Court. (Doc. 1). On April
30, 2011, Defendants filed an answer to Plaintiff’s complaint (Doc. 6) and concurrently filed a
Motion for Partial Judgment on the Pleadings (Doc. 7).
II.

LEGAL STANDARD
Under Rule 12(c), a party may move for judgment on the pleadings any time after

the pleadings are closed but early enough not to delay trial. The standard of review for a motion
for judgment on the pleadings is the same as for a motion to dismiss for failure to state a claim
for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure. E.E.O.C. v. J.H. Routh
Packing Co., 246 F.3d 850, 851 (6th Cir. 2001) (citing Grindstaff v. Green, 133 F.3d 416, 421
(6th Cir. 1998)).
In deciding a motion to dismiss under Rule 12(b)(6), a court must take all well
pled allegations in the complaint as true and construe those allegations in a light most favorable

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Defendants maintain that Franks’ final appointment terminated on December 31, 2010 and that after the Council’s
vote not to appoint him as Superintendent on February 7, 2011, he was a regular employee in the Water and Street
Department, rather than a Superintendent, until his termination on February 21, 2011. (Doc. 7-1 at 1.) On this
record, it is not clear what position he held from January 1, 2011 to February 7, 2011. 

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to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007) (citations omitted). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007)). “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations. When there
are well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Id. at 1950. A complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief[,]”
Fed. R. Civ. P. 8(a)(2), in order to “give the defendant fair notice of what the plaintiff's claim is
and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 44, 47 (1957). Although this
pleading standard does not require great detail, the factual allegations in the complaint “must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citations
omitted). In other words, “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion,
of entitlement to relief.” Id. at 556, n. 3 (criticizing the Twombly dissent's assertion that the
pleading standard of Rule 8 “does not require, or even invite, the pleading of facts”). In order to
grant either a motion for judgment on the pleadings under Rule 12(c) or a motion to dismiss
under 12(b)(6), the court must determine that “the plaintiff undoubtedly can prove no set of facts
in support of the claims that would entitle [it to] relief.” J.H. Routh Packing Co., 246 F.3d at
852.
III.

DISCUSSION
In their motion, Defendants seek judgment on four of Franks’ five claims: Count

1, alleging that Defendants unlawfully discriminated against Franks on the basis of his age in
violation of Ohio Rev. Code § 4112.02(A); Count 3, alleging that the Village breached an

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implied employment contract with Franks; Count 4, alleging abuse of power by Hubble in her
individual and official capacities in violation of Ohio Rev. Code § 124.61; and Count 5, alleging
that the Village and Hubble, in her official capacity, intentionally inflicted emotional distress on
Franks. Additionally, Defendants’ motion seeks judgment on Franks’ claim for punitive damages
as against the Village and Hubble in her official capacity.
A. Count 1
Count 1 of Franks’ complaint alleges his termination was the result of unlawful
age discrimination in violation of Ohio Rev. Code § 4112.02. Defendants, relying on Twombly,
argue that Franks has failed to plead any facts, which if taken as true, would establish that his
termination was in any way related to his age or that he was treated any differently from
similarly situated individuals.
Ohio Rev. Code § 4112.02(A) provides, in relevant part, as follows:
It shall be an unlawful discriminatory practice: […] for any employer, because of
the […] age […] of any person, to discharge without just cause […] or otherwise
to discriminate against that person with respect to […] tenure, terms, conditions,
or privileges of employment, or any matter directly or indirectly related to
employment.
Ohio Rev. Code § 4112.02(A). Further, Ohio Rev. Code § 4112.14 provides that, “No employer
shall […] discharge without just cause any employee aged forty or older who is physically able
to perform the duties and otherwise meets the established requirements of the job […].” Ohio
Rev. Code § 4112.99 authorizes civil actions for any violations of Chapter 4112.
The Ohio courts “have looked to federal case law [interpreting Title VII of the
Civil Rights Act of 1964] when considering claims of employment discrimination brought under
the Ohio Revised Code.” Coryell v. Bank One Trust Co., 803 N.E.2d 781, 786 (Ohio 2004).
Pursuant to this authority, “ ‘[t]o prevail in an employment discrimination case, a plaintiff must
prove discriminatory intent’ and may establish such intent with either direct or indirect methods
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of proof.” Morrissette v. DFS Servs., LLC, No. 10AP-633, 2011 WL 1988373, at *3 (Ohio Ct.
App. May 17, 2011) (citations omitted).
“Direct evidence of discrimination occurs when either the decision-maker or an
employee who influenced the decision-maker made discriminatory comments related to the
employment action in question.” Beekman v. Office Depot, Inc., No. 1:05CV0638, 2007 WL
1989600, at *3 (S.D. Ohio July 6, 2007). Direct evidence is “evidence which, if believed,
requires the conclusion that unlawful discrimination was at least a motivating factor in the
employer’s actions.” Weberg v. Franks, 229 F.3d 514, 522 (6th Cir. 2000) (citations omitted). In
other words, “Direct evidence is evidence that proves the existence of a fact without requiring
any inferences.” Rowan v. Lockheed Martin energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004)
(citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1081 (6th Cir. 1994)).
W]hen a plaintiff seeks to establish age discrimination indirectly, the plaintiff may
establish discriminatory intent using the analysis set forth in McDonnell Douglas
Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, as the
Supreme Court of Ohio adopted it in Barker v. Scovill, Inc. (1983), 6 Ohio St.3d
146, 451 N.E.2d 807, and more recently modified it in Coryell […]. Coryell
announced that, to establish a prima facie case of age discrimination in violation
of R.C. 4112.14(A), a plaintiff-employee must demonstrate he or she “(1) was a
member of the statutorily protected class, (2) was discharged, (3) was qualified
for the position, and (4) was replaced by, or the discharge permitted the retention
of, a person of substantially younger age.” Id. at paragraph one of the syllabus,
modifying and explaining Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501,
575 N.E.2d 439, syllabus.
Morrissette, 2011 WL 1988373, at *3. The Sixth Circuit has held that “a plaintiff can also make
out a prima facie case by showing, in addition to the first three elements, [supra] [,] that a
‘comparable non-protected person was treated better.’ ” Mitchell v. Toledo Hosp., 964 F.2d 577,
582 (6th Cir. 1992). The “ultimate inquiry in [an] age discrimination [case] […] [is] whether [a]
plaintiff was discharged on account of age.” Coryell, 803 N.E.2d at 788 (citation omitted).

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Defendants assert that Franks has not alleged that either his termination or Mayor
Hubble’s repeated retirement inquiries were causally related to his age as opposed to his
criticism of the Village administration. Further, Defendants argue that he has not plead sufficient
facts to show that he was treated differently than similarly situated employees of the Village or
that age was a factor in each element of a prima facie case of age discrimination.
On a motion to dismiss a claim of employment discrimination, however,
arguments based upon the McDonnell Douglas prima facie case standard, outlined above, are
premature. Pedreira v. Ky. Baptist Homes for Children, Inc., 579 F.3d 722, 728 (6th Cir. 2009).
“The prima face case under McDonnell Douglas […] is an evidentiary standard, not a pleading
requirement.” Id. (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)). See also,
Coryell, 803 N.E.2d at 788-89 (adopting holding in Swierkiewicz). “Thus, ‘the ordinary rules for
assessing the sufficiency of a complaint apply.’ ” Id. (quoting Swierkiewicz, 534 U.S. at 511).
See also, Lindsay v. Yates, 498 F.3d 434, 439 (6th Cir. 2007) (noting Swierkiewicz’s holding that
“an employment-discrimination plaintiff satisfies her pleading burden by drafting a short and
plain statement of the claim consistent with Federal Rule of Civil Procedure 8(a).”) (internal
quotation marks omitted).2 The Court, therefore, looks to see whether Franks has sufficiently
pled “a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
Here, the complaint contains sufficient facts to support the first three elements of
a prima facie case of age discrimination. Franks’ complaint alleges he was 65 years old when
Defendants involuntarily terminated him from his employment on or about February 21, 2011.
(Compl. ¶¶ 7, 21.) He alleges he was employed as the Water and Street superintendent for the
Village for over 30 years and was consistently reappointed to this position on a yearly basis.

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The lower courts in this circuit have grappled with whether the holding of Swierkiewicz remains good law in light
of Twombly and Iqbal.

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(Compl. ¶¶ 8-9.) It can plausibly be inferred from the facts plead that Franks was qualified for
the position he held. Franks complaint alleges that the Village council members discriminated
against him because he was an “older, long-term employee at the high end of the pay scale on the
verge of retirement with benefits and payments due,” and that the Mayor “relentlessly badgered”
him to retire because she did not think he was “capable” of carrying out her “big plans for 2011.”
(Compl. ¶¶ 53, 28-29.) The complaint does not, however, contain any facts to support the fourth
element of a prima facie case —– that Franks was replaced by a substantially younger person or
that non-protected, similarly situated employees were treated better.
Nonetheless, the Court concludes this failure is not fatal to Franks’ case at this
stage of the litigation. As outlined above, at the pleading stage, Franks is not required to plead
facts establishing a prima facie case. Swierkiewicz, 534 U.S. at 510. This is because the
McDonnell Douglas framework does not apply in every employment discrimination case. “For
instance, if a plaintiff is able to produce direct evidence of discrimination, he may prevail
without proving all elements of a prima facie case.” Id. at 511 (citation omitted). The Court finds
that Franks’ complaint plausibly states a claim for age discrimination based on direct evidence.
According to Franks, he had several encounters with Mayor Hubble that
constitute direct evidence of age discrimination. He states that Hubble had: (1) “repeatedly and
relentlessly badgered [him] to retire” (Compl. at ¶ 28); (2) “told [him] on numerous occasions
that she was the ‘ultimate boss’ and could fire him if she desired to do so” (Compl. at ¶ 25); (3)
“told [him] that he could go work ‘on a farm’” (Compl. at ¶ 26); and (4) had “told [him] that she
would throw a big party if he would leave his job” (Compl. at ¶ 27). The complaint notes that
Franks’ termination occurred within a short temporal proximity to his planned retirement.
(Compl. ¶ 53.) Franks further alleges that the Mayor “conveyed these messages knowing full

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well that the [he] was on the verge of retirement.” (Doc. 8 at 5.) Franks argues that a reasonable
inference of age discrimination can be drawn from these statements and their temporal proximity
to his expected retirement.
The Sixth Circuit has held that vague, isolated comments are not evidence of
discriminatory intent. Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th Cir. 1994);
Woythal v. Tex-Tenn Corp., 112 F.3d 243, 247-48 (6th Cir. 1997) (isolated inquiries by the
defendant’s president about when the plaintiff intended to retire were not evidence that the
plaintiff was terminated because of his age); Gagne v. Nw. Nat’l Ins. Co., 881 F.2d 309, 314 (6th
Cir. 1989) (noting that statement by the plaintiff’s supervisor that the defendant needed “new
blood” was not sufficient to raise a genuine issue of material fact on the plaintiff’s age
discrimination claim). Likewise, it has been held that the terms “retire” and “age” are not
synonyms. Cf. Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993) (“[A]n employee’s age is
analytically distinct from his years of service.”); Erickson v. Farmland Indus., Inc., 271 F.3d
718, 725 (8th Cir. 2001) (“Length of tenure, although it may correlate empirically with age, is
not synonymous with age, and therefore the comment, “Twenty years is too long. You should
have moved five years ago,” is not direct evidence of age-based animus.”)
Nevertheless, repeated inquiries about a plaintiff’s intention to retire could
suggest an age-related impetus for his eventual firing. Leonard v. Twin Towers, 6 F. App’x 223,
230 (6th Cir. 2001). In Leonard, an unpublished opinion, the Sixth Circuit held that, while an
employer’s friendly inquiries about an employee’s intentions regarding retirement cannot form
the basis of an age discrimination claim, “not all inquiries about retirement are ‘friendly’ ” and
“repeated and unwelcome inquiries may certainly be relevant to a showing of age
discrimination.” Id.

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Further, the courts have held that an employer’s statements, can amount to direct
evidence of age discrimination if a plaintiff can show that the defendant used the term “retire” as
a “proxy for age” to express or accomplish age discrimination. See, Scott v. Potter, 182 F. App’x
521, 526 (6th Cir. 2006) (holding that evidence that employer frequently used innocuous terms to
refer to an older worker in a disparaging way constitutes direct evidence of age discrimination);
Erickson, 271 F.3d at 725 (references to employee’s length of tenure not direct evidence of age
discrimination absent evidence that employer was using length of tenure as a proxy to
accomplish age discrimination). “This is because no factual inference of discrimination need be
drawn from [such] statement[s], only a translation need be applied,” i.e., ‘you should retire’
means ‘you’re too old.’ Scott, 182 F. App’x at 526; Erickson, 271 F.3d at 725.
So long as Franks can come forward with evidence that defendants used
“retirement” as a proxy for “age,” the retirement-related comments alleged in the complaint may
plausibly support a claim of age discrimination based on direct evidence. Of course, should
Franks fail to produce such direct evidence, he will need to meet the prima facie elements
outlined above to sustain his claim, in which case, if he does not, this suit may be subject to
summary dismissal upon motion by defendants. Having concluded that the complaint, construed
in a light most favorable to plaintiff, contains sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face, the Court DENIES Defendants’ motion for judgment
on Count 1 of the complaint.
B. Count 3
In Count 3, Franks alleges the Village breached its employment contract with
him. Franks alleges that although there was no express, written contract between the Village and
himself, there was an implied agreement based on his “circumstances and length of employment

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at the Township.” (Doc. 8 at 6.) Since the Village failed to appoint or dismiss him, Franks argues
that it impliedly re-appointed him as Superintendent. (Id.)
In Ohio, municipal corporations cannot be sued in quasi-contract. Cuyahoga Cnty.
Hosp. v. City of Cleveland, 472 N.E.2d 757 (Ohio Ct. App. 1984). A village is a municipal
corporation that cannot be bound by a contract “unless the agreement is formally ratified through
proper channels. As a result, a claim may not be sustained against a municipal corporation upon
theories of implied or quasi-contract. Only express agreements adopted by the City in accordance
with law may be enforced.” Wright v. Dayton, 814 N.E.2d 514, 520 (Ohio Ct. App. 2004)
(internal citations omitted). See also Magnum Towing & Recovery, LLC v. City of Toledo, 430 F.
Supp. 2d 689 (N.D. Ohio 2006). Franks admits that his agreement with the Village was not an
express written agreement. Ohio law is clear that a municipal corporation, such as the Village,
cannot be held liable upon an implied contract theory. Accordingly, Franks’ breach of contract
claim must be dismissed; therefore, defendants’ motion for judgment on Count 3 is GRANTED.
C. Count 4
In Count 4, Franks alleges abuse of power by Mayor Hubble in violation of Ohio
Rev. Code § 124.61. Hubble maintain that there is no private right of action provided by §
124.61. Franks disagrees, arguing that, since there is no language in that section expressly
prohibiting an individual from bringing a private cause of action, Hubble’s contention is
unsupported.
Ohio Rev. Code §124.61 provides that: “No person who holds any public office
[…] shall […] by means of threats or coercion, induce or seek to induce anyone in the classified
service to resign his position or to waive his right to certification, appointment, or promotion.”

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R.C. § 124.61. Although R.C. § 124.61, admittedly, does not expressly prohibit private rights of
action, R.C. § 124.64, the enforcement provision, states that:
Prosecutions for the violation of sections 124.01 to 124.64 of the Revised Code
[…] shall be instituted by the attorney general or by the director acting through
special counsel, or by the county prosecutor for the county in which the offense is
alleged to have been committed. […]
R.C. § 124.64.
According to the plain language of § 124.64, an action against a public official,
such as Hubble, for violation of Ohio’s civil service laws Ohio Rev. Code § 124.01 et seq. must
be instituted by the attorney general, the Director of Administrative Services, acting through
special counsel, or by the county prosecutor, of which Franks is none. “[W]here the text of a
statute is clear and unambiguous, the Court should not read in additional requirements or
interpretations that are not supported by that clear text.” Satterfield v. Karnes, 736 F. Supp. 2d
1138, 1155 (S.D. Ohio 2010) (citing Chrysler Corp. v. Comm’r, 436 F.3d 644, 654 (6th Cir.
2006)). The Court will not read beyond the plain language of the statue to arrive at the
conclusion that Franks may bring this claim. As Franks lacks standing to bring a claim against
Hubble under R.C. § 124.61, the Court GRANTS Defendants’ motion for judgment on the
pleadings as to Count 4.
D. Count 5
In Count 5 of his complaint, Franks alleges intentional infliction of emotional
distress by Defendants. (Compl. at ¶¶ 83-89.) Defendants seek dismissal of this claim as against
the Village and Hubble in her official capacity. Defendants maintain that they are immune from
this claim pursuant to the general immunity extended to political subdivisions and their
employees in Ohio Rev. Code § 2744.02(A)(1). Further, defendants argue that Ohio case law

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holds that that there can be no intentional infliction of emotional distress arising out of an
employment relationship with a political subdivision.
The Ohio Supreme Court has defined the tort of intentional infliction of emotional
distress as follows: “One who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such emotional distress, and
if bodily harm to the other results from it, for such bodily harm.” Yeager v. Local Union 20, 453
N.E.2d 666 (1983), abrogated on other grounds by Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio
2001) (quoting Restatement (Second) of Torts 71 § 46 (1) (1965)). The Court went on to state
that “‘[l]iability has been found only where the conduct has been so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.’” Id. (quoting Restatement (Second)
of Torts 71 § 46 cmt. d (1965)).
Ohio Rev. Code § 2744.02(A)(1) provides general immunity for political
subdivisions and their employees from liability in tort “allegedly caused by any act or omission
of the political subdivision or an employee of the political subdivision in connection with a
governmental or proprietary function.” Ohio Rev. Code § 2744.02(A)(1).3 Absent that immunity,
a political subdivision would be liable in tort, just like any other entity.
Franks argues that § 2744.09(B) provides an exception to Defendants’ immunity
from tort liability in this case. Ohio Rev. Code § 2744.09 provides that immunity from tort
liability
does not apply to, and shall not be construed to apply to […] Civil actions by an
employee […] against his political subdivision relative to any matter that arises

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The Court notes that this statutory provision has been held by the United States District Court for the Southern
District of Ohio to violate the Ohio constitution because it would violate the right to trial by a jury as well as the
right to a remedy. Kammeyer v. City of Sharonville, 311 F. Supp. 2d 653 (S.D. Ohio 2003). The Ohio Supreme
Court has not spoken on this question.

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out of the employment relationship between the employee and the political
subdivision[.]
Ohio Rev. Code § 2744.09(B) (emphasis added). Franks asserts that, because he is an employee
of a political subdivision bringing a civil action against a political subdivision that arises out of
an employment relationship between the parties, his tort claim for intentional infliction of
emotional distress should not be barred.
Defendants, on the other hand, argue that while § 2744.09(B) expressly applies to
civil actions brought by an employee against a political subdivision, Ohio case law holds that this
exception does not apply to intentional tort claims filed by an employee. (Doc. 9 at 7.) This is so,
according to defendants, because such claims must necessarily arise outside of the employment
context. See Brady v. Safety-Kleen Corp., 576 N.E.2d 722 (Ohio 1991).
According to the Ohio Supreme Court, “[t]here are no exceptions to immunity for
the intentional torts of fraud and intentional infliction of emotional distress […].” Wilson v. Stark
Cnty. Dept. of Human Servs., 639 N.E.2d 105, 107 (Ohio 1992). Further, the Ohio courts have
repeatedly held that intentional torts are not included in the Ohio Rev. Code § 2744.09(B)’s
exception to immunity because such intentional torts cannot properly be said to arise from an
employment relationship. See, e.g., Sabulsky v. Trumbull Cnty., No. 2001-T-0084, 2002 WL
31886686 at *3 (Ohio Ct. App. Dec. 27, 2002); Kohler v. City of Wapakoneta, 381 F. Supp. 2d
692, 702 (N.D. Ohio 2005). Defendants, however, have notified the Court that a split exists
among the Ohio Courts of Appeals with respect to whether § 2744.09(B) applies to intentional
tort claims brought by an employee, and whether intentional torts can arise out of the
employment relationship. In a footnote in their motion, Defendants have informed the Court that
the Ohio Supreme Court will be taking up the issue in the near future. (Doc. 9 at 7 n. 2) (citing
Sampson v. Cuyahoga Metro. Hous. Auth., No. 2010-1561 (Ohio Sup. Ct.)).
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In an abundance of caution, and given the fact that the Ohio Supreme Court is
taking up the issue of intentional torts in an employment context as it pertains to § 2744.09(B),
the Court declines to rule on this prong of Defendants’ motion at this time. Instead, since other
claims in the case will now proceed, the Court prefers to await a ruling on the issue by the Ohio
Supreme Court. Thus, at this time, the Court DENIES Defendants’ motion with respect to Count
5 without prejudice to renewal at a later time, if appropriate.
E. Punitive Damages
Franks, in his Complaint, seeks to recover both compensatory and punitive
damages against Defendants. (Compl. at 12.) Ohio Rev. Code § 2744.05 provides that “in an
action against a political subdivision to recover damages for injury, death, or loss to person or
property caused by an act or omission in connection with a governmental or proprietary function:
(A) Punitive or exemplary damages shall not be awarded.” R.C. § 2744.05(A). Defendants have
moved to dismiss Franks’ claim for punitive damages as against the Village and Hubble in her
official capacity.
The Supreme Court in City of Newport v. Fact Concerts, Inc., 453 U.S. 247
(1981), has also made clear that liability against a municipality does not extend to liability for
punitive damages. The Court explained that punitive damages enforced against a municipality
are “in effect a windfall to a fully compensated plaintiff, and are likely accompanied by an
increase in taxes or a reduction of public services for the citizens footing the bill. Neither reason
nor justice suggests that such retribution should be visited upon the shoulders of blameless or
unknowing taxpayers.” Id. at 267. The Court finds City of Newport controlling. Accordingly,
Franks is not entitled to punitive damages as against the Village and Mayor Hubble in her
official capacity for any of his claims. Consequently, Defendants’ motion for judgment on

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plaintiff’s claim for punitive damages against the Village and Hubble in her official capacity is
GRANTED.
IV.

CONCLUSION
For the reasons set forth above, the Court GRANTS IN PART Defendants’

motion for partial judgment on the pleadings, and DISMISSES Counts III and IV of the
complaint, as well as Plaintiff’s claim for punitive damages as against the Village and Hubble in
her official capacity. The Court DENIES Defendants’ motion for judgment on Count I and
DENIES without prejudice to refiling, Defendants’ motion with respect to Count V.
IT IS SO ORDERED.
Dated: November 18, 2011
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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