Davis v. Black

• Decision Date: 05 November 1991
• Docket Number: 90AP-912,Nos. 90AP-756,s. 90AP-756
• Citation: 591 N.E.2d 11,70 Ohio App.3d 359
• Parties: DAVIS, Appellant, v. BLACK; Episcopal Diocese of Southern Ohio et al., Appellees.
• Court: Ohio Court of Appeals

Page 359

70 Ohio App.3d 359

591 N.E.2d 11

DAVIS, Appellant, v. BLACK; Episcopal Diocese of Southern Ohio et al., Appellees.

Nos. 90AP-756, 90AP-912.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Nov. 5, 1991.

John S. Marshall, Columbus, for appellant.

Arter & Hadden, Louis E. Gerber and Gary Batke; Carlile, Patchen, Murphy & Allison, Denis J. Murphy and Linda Miller; and Portugal & Singer and Gerald Portugal, Columbus, for appellees.

WHITESIDE, Judge.

Plaintiff, Catherine Davis, appeals from judgments of the Franklin County Court of Common Pleas granting motions for summary judgment of defendants Episcopal Diocese of Southern Ohio, Reverend John Fisher, and St. James Episcopal Church. In support of her appeal, plaintiff raises three assignments of error (labeled "Statement of Issues") as follows:

"I. Whether the trial court erred in granting St. James Episcopal Church's motion for summary judgment on Counts I, II, III and IV of the third amended complaint.

"II. Whether the trial court erred in granting the Episcopal Diocese of Southern Ohio's motion for summary judgment on Counts II, III and IV of the third amended complaint.

"III. Whether the trial court erred in granting Rev. John Fisher's motion for summary judgment on Counts I, III and IV of the third amended complaint."

Plaintiff served some ten years as parish secretary of defendant St. James Episcopal Church prior to the arrival of defendant Father Fisher from Billings, Montana, in January 1988 to serve as rector of the church. Approximately six months later, plaintiff was fired as parish secretary by Father Fisher after she had asserted sexual harassment complaints against defendant Father Fisher with both the church and with the diocese. Initially, plaintiff contacted the bishop of the diocese with her complaint. He promised to make an investigation and apparently did, but concluded that, although he believed she was sincere in her allegations, there was nothing that he could do because defendant Father Fisher denied the allegations, and the bishop felt he could not resolve the credibility issue. The bishop did, during the investigation, order the work hours of plaintiff and defendant Fisher to be so staggered that they would not be working at the same time.

After hearing that the bishop would take no further action, plaintiff wrote to the standing committee of the diocese, the vestry, the warden, defendant Father Fisher, and the bishop in an attempt to resolve what she termed as "this terrible problem." Upon receipt of this letter, defendant Father Fisher called the chancellor of the diocese, who advised defendant Fisher to fire plaintiff. Defendant Fisher was instructed by the vestry of the church to notify the parish that plaintiff had been fired and to give a reason. Defendant Fisher then published in the parish newsletter a statement that plaintiff was engaging in an openly malicious endeavor to discredit defendant Fisher.

Subsequently, plaintiff brought this action, and, by her third amended complaint, she sets forth four claims for relief: the first for sexual harassment, including retaliatory discharge; the second for intentional and negligent infliction of emotional distress; the third for invasion of privacy; and the fourth for defamation. The trial court sustained motions for summary judgment for defendants church and diocese, with a finding of no just cause for delay. The appeal in case No. 90AP-756 is from this judgment. Thereafter, the trial court sustained a motion for summary judgment as to defendant Fisher, except with respect to count two of the complaint for intentional and negligent infliction of emotional distress. Thereafter, defendant Fisher dismissed a counterclaim he had filed against plaintiff, and plaintiff dismissed count two of her complaint against Fisher, both without prejudice. An appeal was then taken by plaintiff from the summary judgment granted to Fisher which is case No. 90AP-912. The cases were consolidated for hearing and were briefed and argued together.

The parties submitted numerous depositions and affidavits in support and opposition to the motions for summary judgment. In granting summary judgment to the diocese, the trial court found that "[t]he diocese effectively has no control over the employment decisions of St. James or its employees." Accordingly, the court found that the church (St. James) and the diocese were not a single employer but, instead, had a voluntary ecclesiastical relationship. The trial court found that the church (St. James) was the employer of plaintiff but that:

" * * * Defendant Fisher was acting neither directly nor indirectly for the Church if he were engaged in sexual harassment. To put it another way, there is no evidence that Fisher was acting within the scope of his employment when engaged in alleged sexual harassment. * * * Any action by Fisher would appear to have been from intensely personal motives. In no way was he serving to promote the business of his employer. * * * "

Then, the trial court found that Count I did not apply to defendant Fisher because he did not meet the definition of a "private employer" as set forth in R.C. 4112.01(A). For these reasons, the trial court dismissed the sexual harassment claim as to all defendants.

As to Count II (intentional and negligent infliction of emotional distress), the trial court stated in part: " * * * [T]he Court finds no evidence that the Diocese acted in an extreme or outrageous manner. Absent any such conduct, the Court must sustain summary judgment for the Diocese. * * * " The trial court made the same finding with respect to the church and found that neither entity could be held vicariously liable for the reason that defendant Fisher must have been acting outside the scope of his duties if he committed such conduct. As to the third claim, invasion of privacy, the court found no evidence supporting such a claim, finding no allegations indicating invasion of privacy. Similarly, as to the defamation claim, the trial court found that, at most, the alleged defamation was libel per quod and, there being no allegation of special damages, summary judgment should be granted. The court did not discuss the issue of qualified privilege.

By the first assignment of error, plaintiff contends that the trial court erred in granting summary judgment to defendant St. James Episcopal Church ("St. James"). From reading the trial court's decision, it is quite apparent that the trial court did not apply the summary judgment standard in rendering its decision but, instead, resolved the factual conflicts in favor of defendants. The trial court did not refer to the summary judgment standard but, instead, repeatedly referred to the evidence not being sufficient to establish certain points.

For summary judgment, the evidence must be construed most strongly in favor of the party against whom the motion is directed, and the granting of summary judgment is appropriate only if, when so construed, the evidence is such as to demonstrate that there is no genuine issue of fact and that reasonable minds could only conclude factually in favor of the moving party. See Civ.R. 56(C).

Construing the evidence most strongly in favor of plaintiff, there is at least a question of fact as to the employment relationship between defendant St. James and defendant Fisher. In fact, the trial court apparently found such relationship to exist, rejecting defendants' claim that Fisher was an independent contractor of defendant St. James. However, the trial court found that defendant Fisher could not be acting within the scope of his employment with defendant St. James since sexual harassment is not appropriate conduct and most certainly does not constitute part of the job duties of a pastor at a church.

This, however, is not the determinative test of scope of employment in this case. Under such a theory, an employer could always avoid responsibility for any negligence of its employee by merely indicating that it was the duty of the employee to act properly at all times. The situation here is different from that in Byrd v. Faber (1991), 57 Ohio St.3d 56, 565 N.E.2d 584. This case involves the church as an employer and its responsibility for sexual harassment by the person to whom it delegated supervisory (and hiring) authority. Byrd involved the strictly religious aspects of the church and its relationship to parishioners (not employees) and its pastor. The court held to the effect that a church is not liable for nonconsensual sexual conduct between a pastor and a parishioner. Cf. Kerans v. Porter Paint Co. (1991), 61 Ohio St.3d 486, 575 N.E.2d 428.

When the evidence is construed most strongly in favor of plaintiff, it is quite clear that the alleged sexual harassment did occur within the scope of defendant Fisher's employment with defendant St. James. He was the supervisor of plaintiff, and most of the alleged sexual harassment took place during working hours at the work place. When plaintiff complained of the alleged sexual harassment, first, her work was reduced from five days to three days (allegedly to avoid contact between the two), and, then, she was fired when she persisted in her complaint.

The trial court correctly referred to R.C. 4112.02(A) since R.C. Chapter 4112 provides the exclusive remedy for pure employment discrimination claims. See Peterson v. Scott Constr. Co. (1982), 5 Ohio App.3d 203, 5 OBR 466, 451 N.E.2d 1236. Cf. Kerans, supra.

The trial court in finding defendant St. James not to be liable for the conduct of its agent, defendant Fisher, indicated that he was not acting within the scope of his employment and was not motivated by desire to serve his employer or to promote the business of his employer but, instead, operated from personal motives, citing Taylor v. Doctors Hospital (1985), 21 Ohio App.3d 154, 21 OBR 165, 486 N.E.2d 1249. Taylor did not involve a supervisor of an employee, but instead,...