Strausbaugh v. Ohio Dept. of Transp.

• Decision Date: 05 December 2002
• Docket Number: No. 02AP-03.,02AP-03.
• Citation: 782 N.E.2d 92,2002 Ohio 6627,150 Ohio App.3d 438
• Parties: STRAUSBAUGH, Appellant, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: Ohio Court of Appeals

782 N.E.2d 92

150 Ohio App.3d 438

2002 Ohio 6627

STRAUSBAUGH, Appellant, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellee.

No. 02AP-03.

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

Decided December 5, 2002.

Barry A. Mentser, Gahanna, for appellant.

Betty D. Montgomery, Attorney General, and Larry Y. Chan, Assistant Attorney General, for appellee.

WILLIAM H. HARSHA III, Judge.

{¶ 1} Appellant, Beemon Strausbaugh, appeals from the judgment of the Ohio Court of Claims in favor of appellee, the Ohio Department of Transportation ("ODOT") following a bench trial on his complaint, which asserts causes of action for sexual harassment, intentional infliction of emotional distress, negligent supervision and tortious violation of public policy.¹

{¶ 2} During the summer of 1999, Strausbaugh worked at ODOT as a Highway Maintenance Worker 2, assigned to the Ross County maintenance facility. Paul Corcoran was his direct supervisor. Corcoran and Strausbaugh had worked together since 1991, and enjoyed what both described as a good working relationship originally. The relationship soured in July and August when, according to the complaint, the supervisor began to swear at Strausbaugh on a regular basis, call him derisive names, and direct sexually suggestive gestures toward him. Strausbaugh averred that Corcoran blew kisses at him and touched him in an offensive manner by patting him on the buttocks, and by pulling his head toward Corcoran's crotch to simulate a sexual act. Strausbaugh alleged that he found the conduct to be abusive offensive, and that Corcoran continued pattern in spite of repeated requests

for him to refrain. As the result of Corcoran's actions, which Strausbaugh alleged were done maliciously, in bad faith, and/or wantonly and recklessly, Strausbaugh claimed that he was entitled to damages severe emotional distress, mental anguish, humiliation, embarrassment, and loss of income.

{¶ 3} ODOT answered the complaint, admitting the nature of the employment relationship but denying all other material allegations and setting forth affirmative As part of the pretrial proceedings the Court of Claims held an evidentiary hearing to determine whether Corcoran's alleged "conduct was manifestly outside the scope of his employment or official responsibilities," or if he "acted with malicious purpose, in bad faith, or in a wanton or reckless manner." R.C. 2743.02(F).² The court decided.

{¶ 4} "Based upon the totality of the evidence presented at the hearing, the court finds that Paul Corcoran acted within the scope of his employment with defendant at all times and during all interactions regarding plaintiff that are at issue in this case. The court further finds that Corcoran did not act with malicious purpose in bad faith, or in a wanton or reckless manner toward plaintiff. Consequently, Paul Corcoran is entitled to personal immunity pursuant to R.C. 9.86 and the courts of common pleas do not have over civil actions against him based upon his alleged actions and inactions in this case." (June 14, 2000 Decision, at 2.)

{¶ 5} The trial court entered judgment reflecting its preliminary decision, and made the express determination, pursuant to Civ.R. 54(B), that "there is no just reason for delay." (June 14, 2000 Judgment Entry.) Strausbaugh did not appeal from the personal immunity judgment. After the court denied a motion by ODOT for summary judgment, it bifurcated the trial into the issues of liability and damages, and proceeded accordingly.

{¶ 6} The parties stipulated to the admission of the immunity hearing transcript and exhibits for the trial on liabilitity That transcript indicated that the workplace environment could be described as being "vulgar," or, as the trial court noted, "`rough,' at best." After the joint exhibit was admitted, Strausbaugh rested, relying on the transcript and other evidence that he submitted with his memorandum opposing ODOT's motion for summary judgment. ODOT called four witnesses, including Strausbaugh as on cross-examination, Corcoran, and two department supervisors, then rested its defense. There was no rebuttal testimony.

{¶ 7} The trial court rendered a decision that found that Strausbaugh and Corcoran had engaged in "verbal altercations where obscene language was used." It found that the situation changed from a joking fashion to one tinged with anger. It also concluded that Corcoran blew kisses to Strausbaugh and, on two occasions, patted him on the buttocks. Nonetheless, the court determined that Corcoran's conduct was commonplace harassment rather than sexual harassment and that it did not amount to intentional infliction of emotion distress. (Nov. 21, 2001 Decision, at 8.) The court also found for ODOT on the negligent supervision claim. Without mentioning the public policy tort claim, the court concluded, "Plaintiff has failed to satisfy his burden of proof on any of the claims alleged in his complaint." (Nov. 21, 2001 Decision, at 8.) The court journalized a judgment in favor of ODOT.

{¶ 8} Strausbaugh presents two assignments of error for our consideration:

{¶ 9} "ASSIGNMENT OF ERROR 1

{¶ 10} "The trial court erred in granting judgment to appellee on appellant's claim for intentional infliction of emotional distress.

{¶ 11} "ASSIGNMENT OF ERROR 2

{¶ 12} "The trial court erred in failing to render judgment for appellant on his claim for public policy tort."

{¶ 13} Strausbaugh argues in support of his first assignment of error that the trial court applied an incorrect legal standard in granting judgment to ODOT on his claim for intentional infliction of emotional distress. He contends that the court erred when it considered his own conduct toward others as a factor in deciding the claim. He also asserts that the court incorrectly applied the concept of "community" as incorporating the context of his specific working environment. Finally, Strausbaugh suggests that the court's finding of no liability was the product of its either having imposed nonexistent comparative harassment or assumption of the risk standards, or having applied an unrecognized defense that Corcoran's conduct was welcomed or otherwise condoned by Strausbaugh. These arguments present us with questions of law, which we review on a de novo basis.

{¶ 14} During oral argument of this appeal, ODOT suggested for the first time that Strausbaugh was precluded by his failure to appeal the immunity decision from relitigating issues that relate to his supervisor's intent and conduct. We disagree for two reasons. First, the record clearly reveals that ODOT did not offer the preclusion argument at the trial level, either in its motion for summary judgment or at trial. The Court of Claims found that genuine issues of fact remained to be litigated as to all elements of Strausbaugh's claims and overruled ODOT's motion for summary judgment. Furthermore, ODOT stipulated to the admission of the immunity hearing transcript as evidence for the purpose of the trial on the issue of liability. ODOT, thus, acquiesced in the court's consideration of the same testimony and exhibits in deciding the claims on the merits. We are mindful of language from this court's decision in Gudin v. W. Res. Psychiatric Hosp. (June 14, 2001), Franklin App. No. 00AP-912, 2001 WL 664389, that arguably supports ODOT's position that Strausbaugh should have been precluded from reoffering proof as to Corcoran's intent and conduct; however, we do not view that language to be controlling here where the parties obviously consented to the trial court's deciding issues related to Corcoran's conduct based upon resubmitted testimony. Moreover, reviewing courts do not generally consider questions that were not raised at the trial level, State ex rel. Porter v. Cleveland Dept. of Pub. Safety (1998), 84 Ohio St.3d 258, 259, 703 N.E.2d 308, citing State ex rel. Quarto Mining Co. v. Foreman (1997), 79 Ohio St.3d 78, 81, 679 N.E.2d 706; but, rather, may deem such issues as waived on appeal. Stuller v. Price (Sept. 20, 2001), Franklin App. No. 00AP-1355, 2001 WL 1098028. Thus, ODOT's suggestion that Strausbaugh should have been precluded from attempting to prove that Corcoran intended to cause serious emotional distress or that his conduct was extreme and outrageous is not an issue that we will consider for the first time here. Second, the standards for determining liability under respondeat superior (i.e., if Corcoran intended to cause Strausbaugh to suffer serious emotional distress or if his conduct was so extreme and outrageous that it exceeded the bounds of decency), differ from the statutory standards for determining immunity (i.e., if he went beyond the scope of his employment by acting maliciously, in bad faith, or in a wanton or reckless fashion toward Strausbaugh). See Dodge v. United States of Am. (S.D.Ohio 2001), 162 F.Supp.2d 873, 884 ("Ohio courts have stated that supervisors may act within the scope of their employment, thus subjecting their employer to respondeat superior liability, when they engage in sexually harassing behavior toward a subordinate employee.").

{¶ 15} Intentional infliction of emotional distress was first recognized as a separate claim for relief by the Ohio Supreme Court in Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 6 OBR 421, 453 N.E.2d 666, where the court stated, at the syllabus: "One who by extreme and outrageous conduct intentionally or recklessly causes serious 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." To establish his claim, Strausbaugh needed to show (1) that Corcoran either intended to cause serious emotional distress or knew or should have known that his actions would result in serious emotional distress to Strausbaugh; (2) that Corcoran's conduct was so extreme and outrageous that it went beyond all possible bounds of decency and that it can be considered as utterly...