Tschantz v. Ferguson

• Decision Date: 07 September 1994
• Docket Number: No. 64115,64115
• Citation: 97 Ohio App.3d 693,647 N.E.2d 507
• Parties: TSCHANTZ, Appellant, v. FERGUSON, Appellee. *
• Court: Ohio Court of Appeals

Page 693

97 Ohio App.3d 693

647 N.E.2d 507

TSCHANTZ, Appellant, v. FERGUSON, Appellee. ^*

No. 64115.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Sept. 7, 1994.

John E. Duda, Cleveland, for appellant.

Henry A. Hentemann, Cleveland, for appellee.

HARPER, Presiding Judge.

The present action commenced in June 1987 when plaintiff-appellant, Elizabeth Tschantz, filed a complaint against defendant-appellee, State Auditor Thomas E. Ferguson, in the Court of Common Pleas of Cuyahoga County. After the Supreme Court of Ohio resolved a jurisdictional conflict, Tschantz v. Ferguson (1991), 57 Ohio St.3d 131, 566 N.E.2d 655, trial was set to commence on July 20, 1992 in the court of common pleas. On this date, the court granted summary judgment in favor of Ferguson on Tschantz's intentional/negligent infliction of emotional distress claim, a claim involving the mental suffering which Tschantz purportedly experienced, and still does, as a result of employment with the Office of the Auditor of State ("State Auditor's Office"). Tschantz, in addition to challenging this ruling on appeal, takes issue with the trial court's rulings on several pretrial motions.

As gleaned from all of the Civ.R. 56(C) evidence before us, Tschantz arrived in the United States in 1960 after enduring the Hungarian Revolution and sexual abuse at the hands of her foster father and European sponsor. She was brought here by an American family, attended private boarding school in Massachusetts, and obtained a diploma from then-existing Canton Business College.

In 1964, Tschantz married Richard Teolis. The marriage produced two children, but ended in divorce in 1971. Tschantz asserted that Teolis sexually and physically abused her both during and after their marriage.

Tschantz was hired as a State Examiner I in the State Auditor's Office on February 14, 1977 with the help of a friend, Thomas Gilmartin, Jr., and his father, a state representative. Although her superiors recommended that she be discharged for incompetence in an evaluation dated October 14, 1977, Tschantz was promoted to State Examiner II on February 26, 1978.

Subsequently, the Personnel Director of the State Auditor's Office, Ron Beight, contacted Tschantz and requested without explanation that she meet him at a restaurant in New Philadelphia. Tschantz met with Beight, at which time she learned from him that he was responsible for the retention of her position with the State Auditor's Office. Beight sought sex in return for his assistance. Tschantz, intimidated by Beight, allowed him to take her to a motel across the street, where the two engaged in sex. Thereafter, a sexual relationship continued, albeit the meetings were infrequent.

Tschantz held a barbecue at her house in September 1978 for the "Friends of Ferguson" campaign fund, as advised by Gilmartin. She met Ferguson for the first time at this function.

In May 1979, Tschantz married Robert Tschantz. This marriage ended in divorce in 1982.

Meanwhile, Tschantz received promotions without actively seeking them. She was promoted to State Examiner III on November 18, 1979, to State Examiner IV in September 1980, to State Examiner V on April 5, 1981, and to State Examiner Supervisor, i.e., Examiner VI, on October 8, 1981. Tschantz was still participating in a sexual relationship with Beight throughout these years.

Ferguson's chauffeur, William Schumann, contacted Tschantz on May 24, 1982 while she was an examiner in New Philadelphia. Schumann directed her to come to a motel located on Brookpark Road in Cleveland, for the purpose of meeting with "the boss" and to pick up campaign literature and other materials. After dinner with Ferguson, Tschantz was to stay overnight at the motel.

Schumann, Ferguson, and Tschantz dined in the lounge of the motel. On the way to their rooms, Schumann continued to the lobby desk. Tschantz reached her door first. Ferguson took the room key from her, opened the door and allowed her to enter the room. She immediately turned around and observed that Ferguson followed her into the room and stood directly behind her. Ferguson gave her a "bear hug," and then stated, "I guess I shouldn't be here, I'm your boss." Ferguson persisted in his sexual advances and these advances led to intercourse with Tschantz.

The following day, Beight communicated to Tschantz that she was not to make a written record of her previous day's whereabouts. Moreover, he indicated that he knew she spent the evening with Ferguson.

Tschantz was appointed as a Regional Administrator on January 22, 1984. She was fully surprised by this appointment, which placed her in charge of all auditor operations in twenty counties. As part of her duties, Ferguson informed Tschantz that she was required to enforce his two-percent Flower Fund contributions from state employees. She was moreover charged with campaign fundraising responsibilities. According to Tschantz, she was aware of her lack of qualifications for this position; she accepted it, however, out of financial necessity.

Tschantz sought to comply with her obligations regarding the raising of campaign funds for Ferguson. In addition to the two-percent efforts, she aided in the organization of three golf outings and two barbecues in 1984. Tschantz maintained that these organizational activities occurred on state time; a vast amount of her state time was thus devoted to fundraising efforts as ordered by Ferguson.

Tschantz sought medical treatment from Dr. Montgomery in 1984 for fatigue, loss of appetite, and her depressed mood. The doctor recommended that she quit her position with the State Auditor's Office. He then referred her to a psychologist, Dr. Robert Devies.

Dr. Devies met with Tschantz on December 20, 1984. He conducted psychological tests and then commenced treatment. Dr. Devies repeated Dr. Montgomery's suggestion that she leave the State Auditor's Office. Tschantz chose not to follow this advice because of financial obligations.

Consequently in 1985, Tschantz organized and participated in four other fundraisers, including a major event held at the Landerhaven Golf Course on June 6. She arranged to meet with her co-organizers, Tony Sabatino and Angelo Guarino, at the conclusion of the event. The meeting, however, never occurred because Schumann instructed Tschantz to be at the Holiday Inn in Beachwood to meet Ferguson. Schumann added that she was "to do what the boss says." The final sexual episode between Ferguson and Tschantz occurred on this date, June 6, 1985. Tschantz estimated that she engaged in sex with Ferguson fifty times in the three years of their involvement.

Either during the late summer or early fall of 1985, Tschantz gathered up enough strength to end her relationship with Ferguson. Ferguson later responded, according to Tschantz, by suggesting that she take a leave of absence. She refused to comply with this suggestion. Tschantz was later investigated from July 10, 1986 through August 6, 1986 pertaining to her alleged misuse of a state motor vehicle. Tschantz maintained that Ferguson attempted to persuade her to quit her position with the State Auditor's Office. She finally capitulated on August 22, 1986, when she was placed on disability leave. Tschantz has not worked since August 22, 1986, and has received continuing psychological treatment.

Tschantz admitted that she never resisted Ferguson's commands to meet him during the three years of their involvement, except for one time when her responsibilities as a regional administrator precluded a meeting. She further admitted that she never verbalized her desire not to engage in sexual intercourse. Additionally, Tschantz acknowledged that Ferguson never orally made offers or promises of promotions or raises in exchange for the sex. Rather, she consistently maintained that she would not dare reject Ferguson's suggestions: she was afraid to voice any objections, she felt she had no choice but to reciprocate, and Ferguson did not have to threaten her verbally for her to know that rejecting Ferguson would harm her career in the State Auditor's Office.

Based upon this presentation of allegations and facts, and additional facts as will be disclosed infra, the trial court granted Ferguson's motion for summary judgment on July 20, 1992. ¹ The court issued an opinion and judgment entry containing the following relevant findings and conclusions of law.

The court initially specified that Tschantz's claim was not for sexual harassment, but for intentional or, in the alternative, negligent, infliction of emotional distress. Next, the court outlined Tschantz's claim, to wit: Tschantz suffered severe emotional distress as a result of an involuntary sexual relationship with Ferguson, which was exacerbated by her forced participation in improper fundraising activities.

The court first concluded that Tschantz failed to state a claim for which relief could be granted with regard to negligent infliction of emotional distress. This conclusion was based upon Paugh v. Hanks (1983), 6 Ohio St.3d 72, 6 OBR 114, 451 N.E.2d 759; Dowell v. Cleveland Clinic Found. (Apr. 9, 1992), Cuyahoga App. No. 59963, unreported, 1992 WL 74225; and Brown Deer Restaurant, Inc. v. New Market Corp. (Mar. 28, 1985), Cuyahoga App. No. 48910, unreported, 1985 WL 9802.

Second, the court ruled that Tschantz failed to meet the evidentiary burden required by Pyle v. Pyle (1983), 11 Ohio App.3d 31, 11 OBR 63, 463 N.E.2d 98, to satisfy the essential elements of a claim for intentional infliction of emotional distress. The trial court found that Tschantz failed to offer any evidence that Ferguson intended, knew, or should have known that his actions would result in serious emotional distress to her. The court also found that Tschantz consented to both the sexual relationship and accepted her fundraising duties as a condition of her employment. Therefore, the court concluded that Tschantz failed to satisfy the first element...