concurring in part and dissenting in part.
{¶ 58} I concur in the judgment to affirm the judgment of the trial court, but I respectfully dissent from the majority’s overbroad holding that seeks to overturn well-reasoned precedent involving classic employer intentional-tort cases.
*264{¶ 59} Sampson’s claims do not involve a classic employer intentional tort. Rather, he claimed that defendants acted maliciously, in bad faith, and in a wanton and reckless manner. His claims clearly arose out of his employment relationship — he was given a gasoline credit card to put gas in his employer’s vehicles. He pursued arbitration through his collective-bargaining agreement and was reinstated to his position — further evidence that his claims arose out of his employment relationship. Therefore, CMHA is barred from asserting immunity under R.C. 2744.09(B).
{¶ 60} However, the majority goes well beyond the facts presented to overrule our prior decisions that actually involved employer intentional torts.1 Therefore, I concur in the judgment to affirm, but I dissent from that portion of the majority opinion overruling our well-reasoned precedent.
{¶ 61} The reason Sampson alleged that defendants acted maliciously, in bad faith, and in a wanton and reckless manner was to strip them of their immunity pursuant to R.C. 2744.03(B)(6). The trial court correctly found that issues of fact existed on this issue and denied summary judgment. But the fact that no deliberate or intentional act was alleged by Sampson brings his claim outside the parameters of an employer intentional tort.
{¶ 62} As the Ohio Supreme Court recently noted, Fyffe’s common-law test for employer intentional torts applied until the General Assembly enacted H.B. 498, effective April 7, 2005, R.C. 2745.01. Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 32.
{¶ 63} Kaminski states:
“To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. As the probability increases that particular consequences may follow, then the employer’s conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk — something short of substantial certainty — is not intent. (Van Fossen v. Babcock & Wilcox Co. [1988], 36 *265Ohio St.3d 100, 522 N.E.2d 489, paragraph six of the syllabus, modified as set forth above and explained.)”
Kaminski at ¶ 31, 32, quoting Fyffe v. Jeno’s Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, paragraph two of the syllabus.
{¶ 64} Sampson’s allegations do not rise to the level of an employer intentional tort, and therefore, the majority goes far beyond the issue presented to overrule this court’s precedent that involved claims specifically described as employer intentional tort. On this basis, I agree with Judge Rocco’s separate opinion.
{¶ 65} I find the following reasoning of the Fourth District Court of Appeals particularly instructive on this very subject. The court in Nagel v. Horner, 162 Ohio App.3d 221, 2005-Ohio-3574, 833 N.E.2d 300, ¶ 16-20, stated:
We acknowledge that Ohio courts consistently have held that under the provisions of R.C. Chapter 2744, political subdivisions retain their cloak of immunity from lawsuits for intentional-tort claims. See Wilson v. Stark Cty. Dept. of Human Serv. (1994), 70 Ohio St.3d 450[,] 452, 639 N.E.2d 105, where in a suit by a private citizen the court stated that R.C. 2744.02(B) contains no exceptions to immunity for torts of fraud and intentional infliction of emotional distress. We also acknowledge that in the workers’ compensation context, the Supreme Court of Ohio has held that an employer’s intentional tort against an employee occurs outside the scope of the employment relationship. Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722, paragraph one of the syllabus. Consequently, Ohio appellate courts have held that R.C. 2744.09 has no application to employer-intentional-tort claims. See Thayer v. W. Carrollton Bd. of Edn., Montgomery App. No. 20063, 2004-Ohio-3921, 2004 WL 1662198; Terry v. Ottawa Co. Bd. of Mental Retardation & Developmental Disabilities (2002), 151 Ohio App.3d 234, 783 N.E.2d 959; and Chase v. Brooklyn City School Dist. (2001), 141 Ohio App.3d 9, 749 N.E.2d 798, and the cases they cite.
But in Gessner v. Union, 159 Ohio App.3d 43, 2004-Ohio-5770, 823 N.E.2d 1, the Second District held that age-discrimination and wrongful-discharge claims arose out of the employment relationship, despite the defendant’s claim that age discrimination is an intentional tort. In reaching its decision, the court noted that “[t]he case law on this issue is sparse, but that is not surprising in view of such an obvious point.” Id. at ¶ 31. Gessner further observed that no other Ohio cases precluded applying R.C. 2744.09(B) when civil rights violations occur in the employment context. “In fact, suit appears to be routinely permitted against political subdivisions in such situations.” Id. at ¶ 47.
Like our colleagues in Gessner, we are not persuaded that the legislature intended to engraft the Supreme Court’s interpretation of the workers’ compensation scheme onto its general statutory provisions for political-subdivision *266immunity. Because employer intentional torts are not a natural risk of employment, the Supreme Court concluded that they occur outside of the employment relationship in the workers’ compensation context. See Blankenship v. Cincinnati Milacron Chem., Inc. (1982), 69 Ohio St.2d 608, 613, 433 N.E.2d 572. * * *
We continue to believe claims that are causally connected to an individual’s employment fit into the category of actions that are “relative to any matter that arises out of the employment relationship.” * * * More recently, the Supreme Court of Ohio went so far as to summarily state that immunity is not available to a political subdivision in an employee’s claim for unlawful discrimination. The court cited R.C. 2744.09(B) and (C). Whitehall ex rel. Wolfe v. Ohio Civ. Rights Comm. (1995), 74 Ohio St.3d 120, 123, 656 N.E.2d 684. And while Wilson v. Stark Cty. Dept. of Human Services, * * *, [70 Ohio St.3d 450, 639 N.E.2d 105,] does indeed indicate that R.C. 2744.02(B) has no exceptions to immunity for fraud and intentional infliction of emotional distress, that case involved a suit by a citizen who was not a public employee. Thus, R.C. 2744.09(B) was not applicable.
Because they are causally connected to Nagel’s employment with the appellants, the retaliation and hostile-work-environment claims arise out of the employment relationship and in this case are based upon what Nagel asserts are violations of his civil rights. Therefore, his claims fall within the purview of R.C. 2744.09, which means that the statutory grant of immunity found in R.C. Chapter 2744 does not apply. Thus, we conclude that the trial court correctly decided that appellants are not entitled to summary judgment on these claims.
{¶ 66} Likewise, because Sampson’s claims are causally connected to his employment and do not involve the workers’ compensation context, the trial court correctly decided that appellants are not entitled to immunity on these claims.
Stewart, J., concurs.. It is significant that the Ohio Supreme Court had the opportunity to review our recent decision applying sovereign immunity in the context of employer intentional tort and declined jurisdiction. Magda v. Greater Cleveland Regional Transit Auth., Cuyahoga App. No. 92570, 2009-Ohio-6219, 2009 WL 4190987, appeal not allowed, 124 Ohio St.3d 1510, 2010-Ohio-799, 922 N.E.2d 971.