[Cite as Kingston Mound Manor I. v. Keeton, 2019-Ohio-3260.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
KINGSTON MOUND MANOR I, :
: Case No. 18CA15
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
CAROLYN KEETON, :
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Sara L. Rose and Mark M. McCarthy, Sara L. Rose, LLC, Pickerington,
Ohio and Gary D. Kenworthy, Kenworthy Law Office, Circleville, Ohio, for
Appellee.
Kristen Finzel Lewis and Baylee Butler, Southeastern Ohio Legal Services,
Chillicothe, Ohio, for Appellant.
_____________________________________________________________
Smith, P. J.
{¶1} This is an appeal from a Pickaway County Court of Common
Pleas judgment entry dismissing Appellant’s counterclaim for failure to state
a claim. On appeal, Appellant, Carolyn Keeton, contends the trial court
erred when it dismissed her counterclaims for violation of the Fair Housing
Act, codified in 42 U.S.C. 3601, et seq., and the Ohio Civil Rights Act,
codified in R.C. 4112, et seq. Upon review, we find no merit to Appellant’s
Pickaway App. No. 18CA15 2
arguments. Accordingly, we overrule her sole assignment of error and
affirm the judgment of the trial court.
FACTS
{¶2} The underlying matter began with the January 18, 2018, filing of
a complaint in forcible entry and detainer by Appellee, Kingston Mound
Manor I, against Appellant, Carolyn Keeton, in the Circleville Municipal
Court, after Appellant stopped paying rent. The eviction action contained
claims for possession and money damages. Appellee filed her answer and
counterclaims on February 26, 2018, alleging sex-based housing
discrimination in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq.
and the Ohio Civil Rights Act, R.C. 4112 et seq. Upon Appellee’s request,
the case was certified to the Pickaway County Court of Common Pleas.
{¶3}Appellee’s counterclaim for sex-based housing discrimination
stemmed from an allegation that Chad Workman, allegedly a maintenance
employee of Appellee, groped Appellant, made sexually explicit remarks to
her, forced her to perform sexual acts, and then threatened her by telling her
that if word got out about the incident, it would not be good for her. The
counterclaim alleged these acts occurred as part of a single incident that took
place while Mr. Workman was in Appellant’s apartment installing window
blinds, approximately eight months before the eviction action was filed.
Pickaway App. No. 18CA15 3
Appellant further noted in her counterclaim that Mr. Workman had a master
key to all apartments, including hers. Appellee filed an answer admitting
Mr. Workman possessed a master key and that he was an employee.1 The
parties dispute on appeal whether the counterclaims alleged claims based
upon direct or vicarious liability, or both.
{¶4} Thereafter, Appellee filed a motion to dismiss the counterclaims
for failure to state a claim, in accordance with Civ.R. 12(B)(6). Appellant
filed a lengthy memorandum contra the motion to dismiss. Over the
objection of Appellant, the trial court dismissed her claims for failure to state
a claim in accordance with Civ.R. 12(B)(6) on June 18, 2018. In dismissing
Appellant’s counterclaims, the trial court construed the claims as being ones
for vicarious liability only, based upon the doctrine of respondeat superior.
The trial court found, in part, that “there [was] no way to characterize the
alleged assault that would bring it within the scope of employment.” The
trial court further found that the incident could not be “described as
calculated to facilitate or promote the business for which the maintenance
worker was employed.”
1
On appeal, Appellee disputes that it admitted Mr. Workman was its employee and claims that he was, in
fact, not its employee. Our review of the record indicates Appellee appears to have admitted Mr. Workman
was its employee in its answer to Appellant’s counterclaim. Regardless, however, for purposes of our
review of the trial court’s ruling on the motion to dismiss for failure to state a claim, we must presume all
factual allegations contained in the counterclaim are true. Thus, we presume to be true the allegation that
he was an employee.
Pickaway App. No. 18CA15 4
{¶5} Appellee subsequently filed a motion for summary judgment on
the issue of damages, which the trial court granted in part. The trial court
reserved, however, the right to hear evidence and arguments regarding the
cleaning costs and trash removal. Then, on October 10, 2018, Appellee
appeared before the trial court and orally withdrew its remaining claims.
The trial court filed a judgment entry the same day dismissing the remaining
claims. It is from that final order that Appellant brings her timely appeal,
setting forth a single assignment of error for our review.
ASSIGNMENT OF ERROR
I. THE PICKAWAY COUNTY COURT OF COMMON PLEAS
ERRED WHEN IT DISMISSED APPELLANT’S
COUNTERCLAIMS FOR VIOLATION OF THE FAIR HOUSING
ACT, 42 U.S.C. 3601, ET SEQ. AND OHIO CIVIL RIGHTS ACT,
R.C. 4112 ET SEQ.
{¶6} Appellant contends the trial court erred when it dismissed her
counterclaims for violation of the Fair Housing Act and Ohio Civil Rights
Act. Appellant raises two arguments under her sole assignment of error.
First, Appellant contends that reviewed under an aided-by-agency standard
for vicarious liability in sexual harassment claims, she stated a claim against
Appellee for violation of the Fair Housing Act. Second, Appellant contends
she stated a claim against Appellee for violation of the Fair Housing Act and
Ohio Civil Rights Act based on a negligence theory of liability. Appellee
Pickaway App. No. 18CA15 5
contends that because Appellant failed to demonstrate the maintenance
worker at issue had any supervisory or managerial authority, or that any
tangible housing action was taken against her, she has failed to demonstrate
any violation of the Fair Housing Act. Appellee also argues the trial court
correctly dismissed Appellant’s vicarious liability claims because the actions
of Mr. Workman were outside the scope of his employment. Further
Appellee argues that Appellant’s counterclaim failed to allege a negligence
claim in the form of a direct liability claim for negligent hiring and/or
supervision of the maintenance worker. While Appellee disputes that Mr.
Workman was its employee on appeal, it concedes that, for purposes of
considering the Civ.R. 12(B)(6) motion, it is appropriate to accept the truth
of Appellant’s claim that Mr. Workman was Appellee’s employee. We
begin with a look at our standard of review, as well as a general overview of
the Fair Housing Act and Ohio Civil Rights Act, as they relate to sexual
harassment claims as a discriminatory housing practice in the context of fair
housing.
Standard of Review
{¶7} A review of the record indicates the trial court dismissed
Appellant’s complaint for failure to state a claim in accordance with Civ.R.
12(B)(6), upon the motion of Appellee. Because it presents a question of
Pickaway App. No. 18CA15 6
law, we review a trial court's decision regarding a motion to dismiss
independently and without deference to the trial court's determination. See
Roll v. Edwards, 156 Ohio App.3d 227, 2004–Ohio–767, 805 N.E.2d 162,
¶ 15 (4th Dist.); Noe v. Smith, 143 Ohio App.3d 215, 218, 757 N.E.2d 1164
(4th Dist. 2000).2 “A motion to dismiss for failure to state a claim upon
which relief can be granted is procedural and tests the sufficiency of the
complaint.” State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio
St.3d 545, 548, 605 N.E.2d 378 (1992). A trial court may not grant a motion
to dismiss for failure to state a claim upon which relief may be granted
unless it appears “beyond doubt from the complaint that the plaintiff can
prove no set of facts entitling him to recovery.” O'Brien v. Univ.
Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975),
syllabus; see also Taylor v. London, 88 Ohio St.3d 137, 139, 723 N.E.2d
1089 (2000).
{¶8} Furthermore, when considering a Civ.R. 12(B)(6) motion to
dismiss, the trial court must review only the complaint, accepting all factual
allegations as true and making every reasonable inference in favor of the
nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532
N.E.2d 753 (1988); Estate of Sherman v. Millhon, 104 Ohio App.3d 614,
2
Here, however, we are addressing the claims set forth in Appellant’s counterclaim, rather than complaint.
Pickaway App. No. 18CA15 7
617, 662 N.E.2d 1098 (10th Dist.1995); see also JNS Ents., Inc. v. Sturgell,
4th Dist. Ross No. 05CA2814, 2005–Ohio–3200, ¶ 8. The court, however,
need not presume the truth of legal conclusions that are unsupported by
factual allegations. McGlone v. Grimshaw, 86 Ohio App.3d 279, 285, 620
N.E.2d 935 (4th Dist.1993); citing Mitchell at 193.
{¶9} We further note that under the Ohio Rules of Civil Procedure, a
complaint need only contain “a short and plain statement of the claim
showing that the party is entitled to relief.” Civ.R. 8(A)(1). Civ.R. 8(E)
further directs that averments contained in a pleading be simple, concise, and
direct. Accordingly, “Ohio law does not ordinarily require a plaintiff to
plead operative facts with particularity.” Cincinnati v. Beretta U.S.A. Corp.,
95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 29. We observe,
however, that “ ‘[i]n a few carefully circumscribed cases,’ ” a plaintiff must
“ ‘plead operative facts with particularity.’ ” State ex rel. Edwards v. Toledo
City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 109, 647 N.E.2d 799
(1995); quoting York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 145,
573 N.E.2d 1063 (1991); citing Mitchell, supra (employee's intentional tort
claim against employer) and Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d
584 (1991) (negligent hiring claim against religious institution); see also
Pickaway App. No. 18CA15 8
S.Ct.Prac.R. 12.02(B)(1) (complaints in original actions filed in the Supreme
Court); Civ.R. 9(B) (claims of fraud or mistake).
{¶10} Moreover, a plaintiff is not required to plead the legal theory of
the case at the pleading stage and need only give reasonable notice of the
claim. State ex rel. Harris v. Toledo, 74 Ohio St.3d 36, 656 N.E.2d 334
(1995); see York, supra, at 145 (stating that complaint need not contain more
than “brief and sketchy allegations of fact to survive a motion to dismiss
under the notice pleading rule”). Thus, “a plaintiff is not required to prove
his or her case at the pleading stage.” York at 145; accord State ex rel.
Leneghan v. Husted, 154 Ohio St.3d 60, 2018-Ohio-3361, 110 N.E.3d 1275,
¶ 16 (citing York and noting that party “not required to prove her case at the
pleading stage”).
Fair Housing Act of 1968/Title VIII
{¶11} The Fair Housing Act was originally enacted in 1968 as part of
Title VIII of the Civil Rights Act of 1968. It “prohibits harassment in
housing and housing-related transactions because of race, color, religion,
sex, national origin, disability, and familial status, just as Title VII of the
Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) (Title VII) prohibits such
harassment in employment.” Fed. Reg. 63054, Executive Summary. The
Fair Housing Act is codified in 42 U.S.C. §3601 et seq. 42 U.S.C. §3601
Pickaway App. No. 18CA15 9
declares that “[i]t is the policy of the United States to provide, within
constitutional limitations, for fair housing throughout the United States.”
The Fair Housing Act further provides in 42 U.S.C. § 3608(a) that “[t]he
authority and responsibility for administering this Act shall be in the
Secretary of Housing and Urban Development.” Additionally, the Act
provides in 42 U.S.C. 3614(a) titled “Rules to Implement Title” as follows:
The Secretary may make rules (including rules for the
collection, maintenance, and analysis of appropriate data) to
carry out this title. The Secretary shall give public notice and
opportunity for comment with respect to all rules made under
this section.
{¶12} The Code of Federal Regulations (hereinafter “C.F.R.”) is the
codification of the general and permanent rules published in the Federal
Register by the executive departments and agencies of the Federal
Government.
{¶13} As noted in 81 Fed. Reg. 63054, 24 CFR Part 100 provides for
“Quid Pro Quo and Hostile Environment Harassment and Liability for
Discriminatory Housing Practices Under the Fair Housing Act.” 24 C.F.R.
Subpart H, §100.600 defines both quid pro quo and hostile environment
harassment in the context of fair housing and provides as follows:
Pickaway App. No. 18CA15 10
(a) General. Quid pro quo and hostile environment harassment
because of race, color, religion, sex, familial status, national
origin or handicap may violate sections 804, 805, 806, or 818 of
the Act, depending on the conduct. The same conduct may
violate one or more of these provisions.
(1) Quid pro quo harassment. Quid pro quo harassment refers
to an unwelcome request or demand to engage in conduct where
submission to the request or demand, either explicitly or
implicitly, is made a condition related to: The sale, rental or
availability of a dwelling; the terms, conditions, or privileges of
the sale or rental, or the provision of services or facilities in
connection therewith; or the availability, terms or conditions of
a residential real-estate-related transaction. An unwelcome
request or demand may constitute quid pro quo harassment
even if a person acquiesces in the unwelcome request or
demand.
(2) Hostile environment harassment. Hostile environment
harassment refers to unwelcome conduct that is sufficiently
severe or pervasive as to interfere with: The availability, sale,
rental, or use or enjoyment of a dwelling; the terms, conditions,
Pickaway App. No. 18CA15 11
or privileges of the sale or rental, or the provision or enjoyment
of services or facilities in connection therewith, or the
availability, terms or conditions of a residential real estate-
related transaction. Hostile environment harassment does not
require a change in the economic benefits, terms, or conditions
of the dwelling or housing-related services or facilities, or of
the residential real-estate transaction.[3]
(i) Totality of circumstances. Whether hostile environment
harassment exists depends upon the totality of the
circumstances.
***
(ii) Title VII affirmative defense. The affirmative defense to
an employer’s vicarious liability for hostile environment
harassment by a supervisor under Title VII of the Civil Rights
Act of 1964 does not apply to cases brought pursuant to the Fair
Housing Act.[4]
3
Although Appellee argues Appellant was not sexually harassed and/or did not suffer sex-based
discrimination because no tangible housing action was taken against her, this provision indicates a hostile
housing environment claim does not require a tangible housing action to have occurred.
4
As explained in Edwards v. Ohio Institute of Cardiac Care, et al., 170 Ohio App.3d 619, 2007-Ohio-
1333, 868 N.E.2d 721, ¶ 21, in an employment based claim for sexual harassment, “[i]f the sexual
harassment by the supervisor did not result in a tangible employment action, then the employer may assert
an affirmative defense.” As set forth, however, a housing provider may not assert this affirmative defense,
even when a tangible housing action has not occurred.
Pickaway App. No. 18CA15 12
***
(c) Number of incidents. A single incident of harassment
because of race, color, religion, sex, familial status, national
origin, or handicap may constitute a discriminatory housing
practice, where the incident is sufficiently severe to create a
hostile environment, or evidences a quid pro quo. (Emphasis
added).
Thus, the rules promulgated by the Director of the Department of Housing
and Urban Development state that sexual harassment, both quid pro quo and
hostile environment, constitute a “discriminatory housing practice” for
purposes of the Fair Housing Act.
{¶14} 42 U.S.C. § 3602(f) defines “discriminatory housing practice”
as “an act that is unlawful under section 3604, 3605, 3606, or 3617” of the
U.S.C. Appellant’s counterclaim alleged violations of 42 U.S.C. §§ 3604(a)
and (b) and 3617. 42 U.S.C. § 3604 provides, in pertinent part, as follows:
As made applicable by section 3603 of this title and except as
exempted by section 3603(b) and 3607 of this title, it shall be
unlawful –
(a) To refuse to sell or rent after the making of a bona fide
offer, or to refuse to negotiate for the sale or rental of, or
Pickaway App. No. 18CA15 13
otherwise make unavailable or deny, a dwelling to any person
because of race, color, religion, sex, familial status, or national
origin.
(b) To discriminate against any person in the terms, conditions,
or privileges of sale or rental of a dwelling, or in the provision
of services or facilities in connection therewith, because of race,
color, religion, sex, familial status, or national origin.
42 U.S.C. §3617 further provides as follows:
It shall be unlawful to coerce, threaten, or interfere with any
person in the exercise or enjoyment of, or on account of his
having exercised or enjoyed, or on account of his having aided
or encouraged any other person in the exercise or enjoyment of,
any right granted or protected by section 3603, 3604, 3605 or
3606 of this title.
{¶15} 24 C.F.R. Part 100 also addresses liability for discriminatory
housing practices in §100.7 as follows:
(a) Direct Liability. (1) A person is directly liable for:
(i) The person’s own conduct that results in a discriminatory
housing practice.
Pickaway App. No. 18CA15 14
(ii) Failing to take prompt action to correct and end a
discriminatory housing practice by that person’s employee or
agent, where the person knew or should have known of the
discriminatory conduct.
***
(b) Vicarious liability. A person is vicariously liable for a
discriminatory housing practice by the person’s agent or
employee, regardless of whether the person knew or should
have known of the conduct that resulted in a discriminatory
housing practice, consistent with agency law. (Emphasis
added).
{¶16} In Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc, et al., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the
United States Supreme Court noted that “ ‘[t]he power of an administrative
agency to administer a congressionally created . . . program necessarily
requires formulation of policy and the making of rules to fill any gap left,
implicitly or explicitly, by Congress.’ ” Quoting Morton v. Ruiz, 415 U.S.
199, 231, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974). Furthermore, the Court
acknowledged that it had “long recognized that considerable weight should
be accorded to an executive department’s construction of a statutory scheme
Pickaway App. No. 18CA15 15
it is entrusted to administer, and the principle of deference to administrative
interpretations.” Id. at 834.
{¶17} In addition to the Fair Housing Act’s language allowing for
sex-based discrimination claims in the form of sexual harassment in the
context of housing, federal courts have acknowledged the viability of these
claims as well. See Lofton v. Hinton, N.D. Ohio No. 1:15CV00486, 2015
WL 4496214, *2 (July 22, 2015) (“It has long been held in this District, and
subsequently in many others, that sexual harassment can be an actionable
form of housing discrimination.”); Citing Shellhammer v. Lewallen, 770
F.2d 167 (6th Cir.1985).
Ohio Civil Rights Act
{¶18} The Ohio Civil Rights Act, codified as R.C. 4112, et seq., also
prohibits sex-based discrimination in the fair housing context. There are
several provisions in R.C. 4112 et seq. that are analogous to the provisions
of 42 U.S.C. 3601 et seq. Specifically, Appellant’s counterclaim alleged
violations of R.C. 4112.02 which provides, in pertinent part, as follows:
It shall be an unlawful discriminatory practice:
***
Pickaway App. No. 18CA15 16
(H) Subject to section 4112.0245 of the Revised Code, for any
person to do any of the following:
(1) Refuse to sell, transfer, assign, rent, lease, sublease, or
finance housing accommodations, refuse to negotiate for the
sale or rental of housing accommodations, or otherwise deny or
make unavailable housing accommodations because of race,
color, religion, sex, military status, familial status, ancestry,
disability, or national origin;
***
(4) Discriminate against any person in the terms or conditions
of selling, transferring, assigning, renting, leasing, or subleasing
any housing accommodations or in furnishing facilities,
services, or privileges in connection with the ownership,
occupancy, or use of any housing accommodations, including
the sale of fire, extended coverage, or homeowners insurance,
because of race, color, religion, sex, military status, familial
status, ancestry, disability, or national origin or because of the
racial composition of the neighborhood in which the housing
accommodations are located;
5
R.C. 4112.024 has no applicability to the present case.
Pickaway App. No. 18CA15 17
***
(7) Print, publish, or circulate any statement or advertisement,
or make or cause to be made any statement or advertisement,
relating to the sale, transfer, assignment, rental, lease, sublease,
or acquisition of any housing accommodations, or relating to
the loan of money, whether or not secured by mortgage or
otherwise, for the acquisition, construction, rehabilitation,
repair, or maintenance of housing accommodations, that
indicates any preference, limitation, specification, or
discrimination based upon race, color, religion, sex, military
status, familial status, ancestry, disability, or national origin, or
an intention to make any such preference, limitation,
specification, or discrimination[.]
It appears 42 U.S.C. §3604(a) is analogous to R.C. 4112.02(H)(1), and 42
U.S.C. §3604(b) is analogous to R.C. 4112.02(H)(4).
Vicarious Liability for violations of the Fair Housing Act
{¶19} Appellant argues her counterclaim sufficiently pled claims for
both quid pro quo sexual harassment and hostile environment harassment
under the Fair Housing Act, when reviewed under an aided-by-agency
standard for vicarious liability. Appellee responds by arguing that Appellant
Pickaway App. No. 18CA15 18
is raising a new argument for the first time on appeal by arguing liability
under an aided-by-agency theory, which is prohibited. However, this case
was dismissed at an early stage of the proceedings. As noted above, a
plaintiff is not required to plead the legal theory of the case at the pleading
stage and need only give reasonable notice of the claim. State ex rel. Harris
v. Toledo, supra; York, supra, at 145. As such, we conclude Appellant is not
barred from making this argument on appeal.
{¶20} Appellee further argues that the manner in which Appellant’s
argument is phrased on appeal essentially concedes that the trial court
correctly concluded she failed to demonstrate liability based upon traditional
principles of vicarious liability under a scope-of-employment analysis.
Appellant’s argument on appeal is that although the trial court found there
was no vicarious liability based upon a scope-of-employment analysis,
liability was established under an aided-by-agency theory of vicarious
liability. Thus, it does appear Appellant may have conceded the trial court
reached the correct decision under a scope-of-employment analysis.
{¶21} Appellee further points out that Appellant only argues the trial
court should have utilized an aided-by-agency analysis as to the Fair
Housing claims and does not make the same argument regarding the Ohio
Civil Rights Act claims. Appellee attributes this to the fact that the Supreme
Pickaway App. No. 18CA15 19
Court of Ohio has expressly rejected the aided-by-agency theory of liability
and thus, the argument would fail in relation to the claims brought under the
Ohio Civil Rights Act. See Groob v. Key Bank, 108 Ohio St.3d 348, 2006-
Ohio-1189, 843 N.E.2d 1170. As will be discussed more fully below, we
agree with Appellee that Appellant limits her aided-by-agency theory of
liability to the context of the Fair Housing Act.
{¶22} We now begin with a review of the traditional vicarious
liability principles based upon the doctrine of respondeat superior involving
a scope-of-employment analysis, which is generally the law in Ohio, as
opposed to an aided-by-agency analysis. The Supreme Court of Ohio has
explained as follows:
The doctrine of respondeat superior is expressed in the
Restatement of the Law 2d, Agency (1958) 481, Section
219(1), which states as follows: “A master is subject to liability
for the torts of his servants committed while acting in the scope
of their employment.” Ohio law provides, “[i]t is well-
established that in order for an employer to be liable under the
doctrine of respondeat superior, the tort of the employee must
be committed within the scope of employment. Moreover,
where the tort is intentional, * * * the behavior giving rise to
Pickaway App. No. 18CA15 20
the tort must be “calculated to facilitate or promote the business
for which the servant was employed * * *.” (Citations
omitted.) Byrd v. Faber (1991), 57 Ohio St.3d 56, 58, 565
N.E.2d 584, 587. In general, “an intentional and willful attack
committed by an agent or employee, to vent his own spleen or
malevolence against the injured person, is a clear departure
from his employment and his principal or employer is not
responsible therefor. * * *” (Citations omitted.) Vrabel v. Acri
(1952), 156 Ohio St. 467, 474, 46 O.O. 387, 390, 103 N.E.2d
564, 568. Stated otherwise, “an employer is not liable for
independent self-serving acts of his employees which in no way
facilitate or promote his business.” Byrd, supra, 57 Ohio St.3d
at 59, 565 N.E.2d at 588.
Osborne v. Lyles, 63 Ohio St.3d 326, 329-330, 587 N.E.2d 825
(1992).
{¶23} The Court later explained in Comer v. Risko, 106 Ohio St.3d
185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 20 that “[a]n agent who committed
the tort is primarily liable for its actions, while the principal is merely
secondarily liable.” Citing Losito v. Kruse, 136 Ohio St. 183, 24 N.E.2d 705
(1940) and Herron v. Youngstown, 136 Ohio St. 190, 24 N.E.2d 708 (1940).
Pickaway App. No. 18CA15 21
This is because “[t]he liability for the tortious conduct flows through the
agent by virtue of the agency relationship to the principal.” Id.
Additionally, it is “axiomatic that for the doctrine of respondeat superior to
apply, an employee must be liable for a tort committed in the scope of his
employment.” Byrd v. Faber, supra, at 58; citing Strock v. Pressnell, 38
Ohio St.3d 207, 217, 527 N.E.2d 1235 (1988); see also Simpkins v. Grace
Brethren Church of Delaware, 2014-Ohio-3465, 16 N.E.3d 687, ¶ 48 (5th
Dist.).
{¶24} This Court likewise observed in Ramey v. Mudd, 154 Ohio
App.3d 582, 2003-Ohio-5170, 798 N.E.2d 57, ¶ 18:
For an employer to be liable for the tortious act of an employee
under the doctrine of respondeat superior, the act must be
committed within the scope of employment and, if an
intentional tort, it must be calculated to facilitate or promote the
employer's business or interest. Citing Browning v. Ohio State
Hwy. Patrol, 151 Ohio App.3d 798, 2003-Ohio-1108, 786
N.E.2d 94, ¶ 60.
Further, “ ‘if the employee tortfeasor acts intentionally or willfully for his
own personal purposes, the employer is not responsible, even if the acts are
Pickaway App. No. 18CA15 22
committed while the employee is on duty.’ ” Ramey at ¶ 18; quoting Caruso
v. State, 136 Ohio app.3d 616, 621, 737 N.E.2d 563 (10th Dist. 2000).6
{¶25} In Osborne v. Lyles, supra, at 330, the Court explained that
although it is commonly recognized that the question of whether an
employee is acting within the scope of his or her employment is a question
of fact to be decided by a jury, when reasonable minds can come to but one
conclusion, it becomes a question of law. Citing Posin v. A.B.C. Motor
Court Hotel, 45 Ohio St.2d 271, 344 N.E.2d 334 (1976) and Mary M. v. Los
Angeles, 54 Cal.3d 202, 213, 285 Cal.Rptr. 99, 105, 814 P.2d 1341 (1991);
citing Perez v. Van Groningen & Sons, Inc. (1986), 41 Cal.3d 962, 968, 227
Cal.Rptr. 106, 109, 719 P.2d 676, 679. Thus, in Ohio it has generally been
held that an employer is not liable for the rape or sexual assault performed
by an employee, even if the employee was on duty at the time the act was
committed, because such an act is a clear departure from their scope of
employment. Osborne v. Lyles, supra, at 330; Simpkins at ¶ 50; see also
Peters v. Ashtabula Metropolitan Housing Authority, 89 Ohio App.3d 458,
462, 624 N.E.2d 1088 (1993). Simpkins also noted the general rule in Ohio
that: [w]hile an employer may be held vicariously liable for acts of their
6
An intentional tort, like assault, is an act of malfeasance. Fiske v. U.S. Health Corp. of S. Ohio, 4th Dist.
Scioto No. 04CA2942, 2005-Ohio-1295, FN 4; citing Black's Law Dictionary (5th Ed.1979).
Pickaway App. No. 18CA15 23
employees in the scope of the employment, Ohio courts have generally held
an intentional tort such as sexual assault or rape, “which in no way facilitates
or promotes the employer's business, is so far outside the scope of
employment that employers should not be held liable for such acts under the
doctrine of respondeat superior or vicarious liability.” Stephens v. A–Able
Rents Co., 101 Ohio App.3d 20, 654 N.E.2d 1315 (8th Dist. 1995).
Simpkins at ¶ 50.
{¶26} Appellant argues, however, that the trial court should have
considered her claims under an aided-by-agency theory of vicarious liability,
rather than scope of employment. This theory of liability is also set forth in
Restatement (Second) of Agency §219 (1958). §219 provides, in pertinent
part, as follows:
(1) A master is subject to liability for the torts of his servants
committed while acting in the scope of their employment.
(2) A master is not subject to liability for the torts of his
servants acting outside the scope of their employment, unless:
***
(d) the servant purported to act or to speak on behalf of the
principal and there was reliance upon apparent authority, or he
Pickaway App. No. 18CA15 24
was aided in accomplishing the tort by the existence of the
agency relation. (Emphasis added).
{¶27} In support of her argument, Appellant cites to comments by the
Director of HUD referencing that an aided-by-agency analysis is appropriate
when considering claims of sexual harassment under the Fair Housing Act.
She also cites to several federal cases that utilized an aided-by-agency
analysis to deny summary judgment motions involving allegations of sexual
harassment in the context of fair housing.7 However, Appellant has cited no
cases from the United States Sixth Circuit, nor has this Court been able to
locate any binding cases that acknowledge or adopt the aided-by-agency
theory of liability. Further, although Chevron, supra, requires deference to
the rulemaking authority of the Director of HUD, the rules promulgated by
the Director simply require vicarious liability to be determined “consistent
with agency law.” It is only in the comments section, not the actual rules,
that the Director references aided-by-agency, or “aided in agency.” We have
found nothing that requires this Court be bound by, or give deference to, the
comments section of the Code of Federal Regulations, as contained in the
Federal Register.
7
Each of the federal cases cited by Appellant involved employees with not only maintenance duties, but
also supervisory or managerial titles. None of the cases cited by Appellant involved an employee who was
simply a maintenance worker with no managerial authority.
Pickaway App. No. 18CA15 25
{¶28} Therefore, in the absence of controlling authority mandating
consideration of Appellant’s claim under an aided-by-agency analysis, we
believe we must adhere to the Supreme Court of Ohio’s views on this issue.
As set forth above, in Groob v. Key Bank, supra, the Supreme Court of Ohio
expressly rejected the aided-by-agency theory of liability. In Groob, the
Supreme Court stated “[t]his court has not adopted Section 219(2)(d), and
we decline to do so here.” Groob at ¶ 54 (Internal footnote omitted). The
Court went to specifically hold as follows:
We also hold that an employer is not liable under a theory of
respondeat superior unless the employee is acting within the
scope of her employment when committing a tort – merely
being aided by her employment status is not enough. Id. at
¶ 58.
The Supreme Court of Ohio more recently reaffirmed the holding in Groob
when it again stated in Auer v. Paliath, 140 Ohio St.3d 276, 2014-Ohio-
3632, 17 N.E.3d 561, ¶ 21 that “[i]t is not enough that the agent’s position
with the principal’s business simply aided her in committing the tort.”
{¶29} In light of the foregoing Ohio case law, and lack of federal
precedent requiring analysis under an aided-by-standard for vicarious
liability, we decline to adopt that theory of liability here. Thus, we reject
Pickaway App. No. 18CA15 26
Appellant’s argument the trial court erred in dismissing her vicarious
liability claims for violations of the Fair Housing Act when reviewed under
an aided-by-agency standard. Further, we agree with Appellee’s argument
that Appellant abandoned any claim on appeal that the trial court’s dismissal
of her claim under a scope-of-employment analysis was erroneous.
Assuming arguendo, however, that Appellant intended to preserve this
argument, or did preserve this argument, in light of the foregoing case law
we conclude this is one of those situations where the intentional and criminal
actions of the employee in no way facilitated or promoted Appellee’s
business interests. Thus, any question regarding scope of employment was
converted to a question of law, which the trial court properly resolved in
favor of Appellee. Accordingly, this portion of Appellant’s argument raised
under her sole assignment of error is without merit.
Direct Liability for violations of the Fair Housing Act and
Ohio Civil Rights Act
{¶30} We next address Appellant’s argument that her counterclaim
set forth a negligence claim against Appellee for negligent hiring and/or
supervision. Appellant argues on appeal that she sufficiently pled claims,
under a notice-pleading standard, for negligent hiring and/or supervision
under a direct liability theory. She makes this argument despite the fact that
Pickaway App. No. 18CA15 27
both Appellee and the trial court construed the claims set forth in her
counterclaim as being based solely upon principles of vicarious liability,
under the doctrine of respondeat superior. For the following reasons, we
reject Appellant’s argument that she sufficiently pled claims of negligence.
{¶31} In Simpkins, supra, claims were brought for negligent hiring,
retention and supervision, as well respondeat superior, based upon an
allegation that Simpkins was raped by a pastor. Simpkins at ¶ 2-3. The
Simpkins court began by explaining the difference between the direct
liability and vicarious liability claims as follows:
In Ohio, negligent hiring, supervising, and retention are
separate and distinct from torts from other theories of recovery
such as negligent entrustment and respondeat superior and an
employer can be held independently liable for negligently
hiring, supervising, or retaining an employee. Stephens v. A–
Able Rents Co., 101 Ohio App.3d 20, 654 N.E.2d 1315 (8th
Dist. 1995); Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584
(1991); Lutz v. Chitwood, 337 B.R. 160 (Bankr.S.D.Ohio 2005)
(applying Ohio law). As noted by one author, “the vicarious
liability of an employer for torts committed by employees
should not be confused with the liability an employer has for
Pickaway App. No. 18CA15 28
his own torts. An employer whose employee commits a tort
may be liable in his own right for negligence in hiring or
supervising the employee * * * [b]ut that is not vicarious
liability.” Kenneth S. Abraham, The Forms and Functions of
Tort Law, 2nd Ed. 166, (2002).
Simpkins at ¶ 49.
{¶32} “[N]egligence is conduct which falls below the standard
established by law for the protection of others against unreasonable risk of
harm.” 2 Restatement of the Law 2d, Torts (1965), Section 282. Negligence
occurs when the defendant fails to recognize that he owes a duty to protect
the plaintiff from harm and that failure proximately resulted in injury or
damage to the plaintiff. Di Gildo v. Caponi, 18 Ohio St.2d 125, 127, 247
N.E.2d 732 (1969); Kauffman v. First–Central Trust Co., 151 Ohio St. 298,
306, 85 N.E.2d 796 (1949). The elements of a claim of negligence are: (1)
the existence of a legal duty owing from the defendant to the plaintiff; (2)
the defendant's breach of that duty; and (3) injury to the plaintiff proximately
resulting from such failure. Wallace v. Ohio Dept. of Commerce, 96 Ohio
St.3d 266, 2002–Ohio–4210, 773 N.E.2d 1018, ¶ 22; citing Mussivand v.
David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989). To recover, a
plaintiff must also prove damages proximately resulting from the breach.
Pickaway App. No. 18CA15 29
Horsley v. Essman, 145 Ohio App.3d 438, 442, 2001–Ohio–2557, 763
N.E.2d 245; citing Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614
(1989).
{¶33} In order to prove a claim for negligent hiring, retention, or
supervision, a plaintiff is required to establish: 1) the existence of an
employment relationship; 2) the employee’s incompetence; 3) the
employer’s actual or constructive knowledge of such incompetence; 4) the
employee’s act or omission causing the plaintiff’s injuries; and 5) the
employer’s negligence in hiring or retaining the employee as the proximate
cause of plaintiff’s injuries. Simpkins Grace Brethren Church of Delaware
at ¶ 40; citing Clifford v. Licking Baptist Church, 5th Dist. Licking No.
09CA0082, 2010-Ohio-1464; Browning v. Ohio State Highway Patrol, 151
Ohio App.3d 798, 2003-Ohio-1108, 786 N.E.2d 94; citing Evans v. Ohio
State University, 112 Ohio App.3d 724, 739, 680 N.E.2d 161 (1996); see
also Zanni v. Stelzer, 174 Ohio App.3d 84, 2007-Ohio-6215, 880 N.E.2d
967, ¶ 8; quoting Collins v. Flowers, 9th Dist. No. 04CA008594, 2005-
Ohio-3797; in turn quoting Ruta v. Breckenridge-Remy Co., 6th Dist. Erie
No. E-80-39, 1980 WL 351648 (Dec. 12, 1980). As explained in Simpkins,
these “are negligence-based torts which require proof of the basic elements
of negligence; and the elements as listed above ‘correspond with the basic
Pickaway App. No. 18CA15 30
elements of negligence—duty, breach, proximate cause, and damages.’ ”
Simpkins at ¶ 40; citing Abrams v. Worthington, 169 Ohio App.3d 94, 2006-
Ohio-5516, 861 N.E.2d 920 (10th Dist.); Ball v. Stark, 10th Dist. Franklin
No. 11AP–177, 2013-Ohio-106.
{¶34} Here, the parties dispute whether Appellant’s alleged claims for
negligent hiring and/or supervision based upon a direct liability theory of
negligence fell under Ohio’s general notice pleading rule, or whether such
claims had to be pled with particularity. In Byrd v. Faber, supra, at 61, the
Supreme Court of Ohio stated as follows regarding the specificity required
in pleading when bringing a claim for negligent hiring, which in Byrd,
involved a religious institution:
In order to survive a Civ.R. 12(B)(6) motion to dismiss, a
plaintiff bringing a negligent hiring claim against a religious
institution must plead operative facts with particularity. See
Mitchell, supra, at, 40 Ohio St.3d 194, 532 N.E.2d at 757
(Douglas, J., concurring). Specifically, the plaintiff must plead
facts which indicate that the individual hired had a past history
of criminal, tortious, or otherwise dangerous conduct about
which the religious institution knew or could have discovered
through reasonable investigation. The mere incantation of the
Pickaway App. No. 18CA15 31
elements of a negligent hiring claim, i.e., the abstract statement
that the religious institution knew or should have known about
the employee's criminal or tortious propensities, without more,
is not enough to enable a plaintiff to survive a motion to
dismiss for failure to state a claim.
The Byrd Court’s reasoning that a negligent hiring claim against a religious
institution must be pled with particularity was based, at least in part, upon
the belief that the institution’s internal policies were likely “infused with the
religious tenets of the particular sect[.]” Id. The Court was concerned about
“serious entanglement problems” under the First Amendment if the Court
was required to assess the adequacy of the institution’s standards. Id.
{¶35} Although we believe the reasoning in Byrd provides guidance
and is instructive as to the pleading requirements regarding negligent hiring
and/or supervision cases generally, it is unclear to this Court, despite
voluminous research, whether a claim for negligent hiring and supervision
must be pled with particularity when the employer is not a religious
institution. Thus, we will analyze Appellant’s counterclaim under Ohio’s
more lenient notice pleading standard, as set forth above.
{¶36} Appellant’s answer and counterclaim contained three sections.
The first section was the “Answer.” The second section was titled
Pickaway App. No. 18CA15 32
“Counterclaims” and the third section was titled “Claims.” The
counterclaims section stated Appellant was bringing an action for
declaratory judgment and damages for discrimination in the rental of
housing on the basis of sex, pursuant to the Fair Housing Act and the Ohio
Civil Rights Act. Appellant further alleged Appellee was the owner and/or
real estate management company managing Kingston Mound Manor
Apartments, and that Chad Workman was employed by Appellee to work at
Kingston Mound Manor I as a maintenance employee and had access keys to
all apartments. The counterclaim section further described that Mr.
Workman groped her, sexually assaulted her and then verbally threatened
her that it “wouldn’t be good” for her if he heard word of the incident
“getting out.”
{¶37} The counterclaim section went on to allege that “[u]pon
information and belief, [Appellant] is not the only female tenant whom Mr.
Workman sexually assaulted or harassed while an employee of Kingston
Mound Manor Apartments.” She further alleged that “Kingston Mound
Manor I knew or should have known of the danger that Mr. Workman posed
to tenants of Kingston Mound Manor Apartments.” The counterclaims
section further alleged that at the time of the assault, “Mr. Workman was
acting (a) with the consent of the Plaintiff (b) under the control and
Pickaway App. No. 18CA15 33
supervision of the Plaintiff and/or (c) within his authority as an agent or
apparent agent of Plaintiff.” Appellant then went on to allege that
“Plaintiff’s unlawful actions are intentional and willful, and/or have been
implemented with callous and reckless disregard for the lawfully protected
rights of [Appellant] and all other female tenants at Kingston Mound Manor
Apartments.” Appellant further alleged that “[i]n engaging in the unlawful
conduct described above, Plaintiff acted intentionally and maliciously to
damage the rights and feelings of [Appellant] and other women, in violation
of the Fair Housing Act of 1968, as amended, 42 U.S.C. 3601, et seq. and
the Ohio Civil Rights Act, O.R.C. 4112.02(H).”
{¶38} In the claims section, Appellant set forth three separate claims
under the Fair Housing Act and analogous provisions of the Ohio Civil
Rights Act. Appellant prefaced each claim with the phrase “Through the
actions of their agent or apparent agent as outlined above, Plaintiff is liable
for * * *.” In her prayer for relief, Appellant requested, among other things,
punitive damages.
{¶39} Thus, although some of the factual allegations contained in the
counterclaims section sounded in direct liability, they did not specifically
allege the facts demonstrating all of the elements of a negligent hiring and/or
supervision claim. For instance, Appellant never utilized the phrases
Pickaway App. No. 18CA15 34
“negligent hiring” or “negligent supervision” or employed the word
“negligence” anywhere in her answer and counterclaim. On the contrary,
she did attribute the following descriptions to Appellee’s conduct:
intentional, willful, callous, reckless disregard, and malicious. We do not
believe Appellant’s use of these terms are compatible with a negligent hiring
and/or supervision claim, the basis of which is essentially that Appellee was
not careful enough in its hiring and supervision of Mr. Workman. Rather,
these words seem better suited to describe the alleged actions of Mr.
Workman as Appellee’s agent and/or employee, in reference to the alleged
sexual assault and verbal threats.
{¶40} Appellant also argues that the fact she requested punitive
damages should have provided “a hint” to Appellee and the court that she
was pleading a direct liability claim because punitive damages are not
recoverable when the sole theory of liability is vicarious liability. Appellee
responds by arguing that punitive damages may never be awarded for mere
negligence. But see Simpkins, supra, at ¶ 87-88 (discussing that the award
of punitive damages in tort actions is currently governed by R.C. 2315.21,
which provides that punitive damages are not recoverable in a tort action
absent a demonstration of malice or egregious fraud, or that the “principal or
master knowingly authorized, participated in, or ratified actions or omissions
Pickaway App. No. 18CA15 35
of an agent or servant,” and further observing that “[p]unitive damages are
recoverable in a negligent hiring, supervision or retention case.) (Internal
citations omitted).
{¶41} The record reveals that in addition to punitive damages,
Appellant requested compensatory damages, reasonable attorneys’ fees and
costs and that Appellee and its agents and employees “be permanently
enjoined from discriminating on the basis of sex against any person in
violation of the Fair Housing Act of 1968 and the Ohio Civil Rights Law.”
Appellant further requested that Appellee “be ordered to take appropriate
affirmative action to ensure that the activities complained of above are not
engaged in again by them or any of their agents.” However, as pointed out
by Appellee, the Fair Housing Act itself provides in 42 U.S.C. § 3613(c)
that punitive damages may be awarded for breach of the Fair Housing Act.
{¶42) § 3613 specifically provides, in pertinent part, as follows:
(c) Relief which may be granted
(1) In a civil action under subsection (a) of this section, if the
court finds that a discriminatory housing practice has occurred
or is about to occur, the court may award to the plaintiff actual
and punitive damages, and subject to subsection (d) of this
section, may grant as relief, as the court deems appropriate, any
Pickaway App. No. 18CA15 36
permanent or temporary injunction, temporary restraining order,
or other order (including an order enjoining the defendant from
engaging in such practice or ordering such affirmative action as
may be appropriate).
(2) In a civil action under subsection (a) of this section, the
court, in its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney's fee and costs.
The United States shall be liable for such fees and costs to the
same extent as a private person.
Upon review, it appears Appellant’s prayer for relief matched, almost
verbatim, the relief available under 42 U.S.C. §3613. Thus, the fact
Appellant requested punitive damages was consistent with its general claim
alleging Fair Housing Act violations and did not necessarily automatically
point to a direct liability claim for negligent hiring and/or supervision.
{¶43} Further, Appellant’s eighteen-page memorandum in opposition
to Appellee’s motion to dismiss only expressly referenced vicarious, as
opposed to direct, liability. For instance, Appellant referenced “81 Fed. Reg
63074 (Sept. 14, 2016) (promulgating 24 C.F.R. § 100.7(b))” as holding
“that a principal is ‘vicariously liable for a discriminatory housing practice
by [its] agent or employee . . . consistent with agency law.” Appellant
Pickaway App. No. 18CA15 37
further argued in her memorandum she “alleges a quid pro quo claim of
sexual harassment based on the actions of Mr. Workman, Plaintiff’s
maintenance worker.” Although Appellant closed her memorandum with
the allegation that Appellee “either knew of the risk that Mr. Workman
posed to female tenants or should have known of the risk,” she ultimately
once again argued that “Kingston Mound Manor, through the actions of its
maintenance worker, Mr. Workman, egregiously violated the rights of
[Appellant * * *] .”
{¶44} Appellant concedes “the drafting of these phrases may have
been inartful.” We conclude Appellant’s counterclaims, taken as a whole
and in light of the relief available under the Fair Housing Act, simply
alleged vicarious liability claims against Appellee “[t]hrough the actions of
their agent or apparent agent,” Mr. Workman. Again, although the
counterclaim section of Appellant’s answer and counterclaim did contain
some reference to direct liability principles, the claims section of that
pleading abandoned any hint at that theory and instead rested upon vicarious
liability principles in accordance with the doctrine of respondeat superior, as
explained above. Thus, we reject Appellant’s argument that she stated a
claim against Appellee for violation of the Fair Housing Act and Ohio Civil
Rights Act based on a negligence theory of liability.
Pickaway App. No. 18CA15 38
{¶45} Having found no merit in either of the arguments raised under
Appellant’s sole assignment of error, it is overruled. Accordingly, the
judgment of the trial court dismissing Appellant’s counterclaim pursuant to
Civ.R. 12(B)(6) for failure to state a claim is affirmed.
JUDGMENT AFFIRMED.
Pickaway App. No. 18CA15 39
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Pickaway County Common Pleas Court to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court,
BY: __________________________________
Jason P. Smith, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.