Genaro. v. Central Transport, Inc.

Douglas, J.

The United States District Court for the Northern District of Ohio, Eastern Division, has certified the following question to this court for our determination:

“For purposes of Ohio Rev.Code Ann. [Chapter] 4112, may a supervisor/manager be held jointly and/or severally liable with his employer for his conduct in violation of [R.C. Chapter] 4112?”

With respect to this question, the district court issued the following findings:

“The Ohio Supreme Court has ruled that federal case law interpreting and applying Title VII is generally applicable to cases involving [R.C. Chapter] 4112. Ohio Civil Rights Comm’n v. Ingram, (1994) 69 Ohio St.[3d 89, 93, 630 N.E.2d 669, 672]; Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil-Rights Comm’n, (1981), 66 Ohio St.2d 192, 196 [20 O.O.3d 200, 202-203, 421 N.E.2d 128, 131].

“The Sixth Circuit has determined that an individual employee/supervisor may not be held personally liable under Title VII. Wathen v. General Electric Co., [C.A.6, 1997], 115 F.3d 400.

“Federal courts in the Northern District of Ohio have addressed the issue of supervisor liability under both Title VII and [R.C. Chapter] 4112 and have determined that neither Title VII nor [R.C. Chapter] 4112 provide[s] for claims against supervisors in their individual capacity. The Courts determined that the reasoning behind precluding individual capacity suits under Title VII applies equally to preclude such suits under [R.C. Chapter] 4112. The agent provision in the statutory definition of employer in Title VII only ensures that employers cannot escape respondeat superior or agency liability. Likewise, [R.C. Chapter] 4112’s definition of employer including ‘any person acting directly or indirectly in the interest of an employer,’ instead of the term ‘agent’ is meant only to ensure *296that employers cannot escape respondeat superior or agency liability. Czupih v. Card Pak, Inc. [N.D.Ohio 1996], 916 F.Supp. 687; Gausmann v. City of Ashland [N.D.Ohio 1996], 926 F.Supp. 635. But see DeLoach v. American Red Cross [N.D.Ohio 1997, 967 F.Supp. 265] * * *; Griswold v. Fresenius USA, Inc.. [N.D.Ohio 1997, 964 F.Supp. 1166] * * *.

“Absent a contrary ruling by the Ohio Supreme Court, the Court finds that [R.C. Chapter] 4112, like Title VII, does not provide for claims against supervisors in their individual capacities.”

The question of state law certified by the district court presupposes employer liability. Considering the question as it arose in the context of the underlying litigation, the issue before the court may be more directly phrased as whether supervisors and managers are named proper party defendants for claims brought pursuant to R.C. Chapter 4112? In other words, may supervisors and managers be held personally liable for unlawful discriminatory acts committed by such persons in violation of R.C. Chapter 4112?

For the reasons that follow, we answer the certified question in the affirmative.

Petitioners argue that the plain language of R.C. Chapter 4112 imposes individual liability on managers and supervisors for their discriminatory conduct found to be in violation of R.C. Chapter 4112. We agree.

R.C. 4112.02 provides that “[i]t shall be an unlawful discriminatory practice: (A) [f]or any employer, because of the race, color, religion, sex, national origin, handicap, age, or ancestry of any person, * * * to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.” R.C. 4112.01(A)(2) defines “employer” as “any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of an employer.” (Emphasis added.) Further, the term “person” is defined very broadly by R.C. 4112.01(A)(1) as including “one or more individuals, * * * any owner, lessor, assignor, * * * agent, [and] employee.” It is clear that the R.C. 4112.01(A)(2) definition of “employer,” by its very terms, encompasses individual supervisors and managers whose conduct violates the provisions of R.C. Chapter 4112.

Moreover, R.C. 4112.08 mandates that “[t]his chapter [4112] shall be construed liberally for the accomplishment of its purposes * * This court has noted in numerous cases the existence of a strong public policy against discrimination. A majority of this court have, time and time again, found that there is no place in this state for any sort of discrimination no matter its size, shape, or form or in what clothes it might masquerade. This, of course, includes discrimination in the workplace. For instance in Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, 133, 543 N.E.2d 1212, 1215, we stated that “there appears to be *297little question that R.C. Chapter 4112 is comprehensive legislation designed to provide a wide variety of remedies for employment discrimination in its various forms.” See, also, Kerans v. Porter Paint Co. (1991), 61 Ohio St.3d 486, 575 N.E.2d 428, and Collins v. Rizkana (1995), 73 Ohio St.3d 65, 652 N.E.2d 653, indicating that Ohio’s statutory framework and case law reflect Ohio’s strong public policy against workplace discrimination. By holding supervisors and managers individually liable for their discriminatory actions, the antidiscrimination purposes of R.C. Chapter 4112 are facilitated, thereby furthering the public policy goals of this state regarding workplace discrimination.

Further, while this court has not previously spoken on this issue, three decisions from courts of appeals of this state have held that liability may be imposed against supervisors and managers in their individual capacity for conduct in violation of R.C. Chapter 4112. See Davis v. Black (1991), 70 Ohio App.3d 359, 370, 591 N.E.2d 11, 19 (“Clearly, the supervisor for whom an employer may be vicariously hable under the doctrine of respondeat superior is also an employer within this definition [R.C. 4112.01(A)(2) ].”); Seiber v. Wilder (Oct. 12, 1994), Greene App. No. 94CA32, unreported, 1994 WL 558969 (individual supervisor defendants were not entitled to summary judgment because “[t]he definition of ‘employer’ in R.C. 4112.01(A)(2) has been construed to include supervisors,” citing Davis, 70 Ohio App.3d at 370, 591 N.E.2d at 19); and Cisneros v. Birck (Apr. 11, 1995), Franklin App. No. 94APE08-1255, unreported, 1995 WL 222156 (individual liability could exist against defendant in his individual capacity, where defendant, who was essentially a one-man corporation, was also considered an employer under R.C. 4112.01[A][2] by acting directly or indirectly in the interest of his own corporation).

It is well settled that “[a] Federal Court should not disregard the decisions of intermediate appellate state courts unless it is convinced by other persuasive data that the highest court of the state would decide Otherwise.” Garraway v. Diversified Material Handling, Inc. (N.D.Ohio 1997), 975 F.Supp. 1026, 1030, citing Commr. of Internal Revenue v. Estate of Bosch (1967), 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886, 893. The “persuasive data” that the district court relied upon, and which respondents have set forth as part of then-arguments, can be readily distinguished.

The district court, in its certification order, cited Ohio Civ. Rights Comm. v. David Richard Ingram, D.C., Inc. (1994), 69 Ohio St.3d 89, 630 N.E.2d 669, and Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 20 O.O.3d 200, 421 N.E.2d 128, for the proposition that the Supreme Court of Ohio has ruled that federal case law interpreting and applying Title VII is generally applicable to cases involving R.C. Chapter 4112.

*298In Plumbers, the court considered whether the court of appeals erred in concluding that the findings of the Ohio Civil Rights Commission were not supported by reliable, probative, and substantial evidence as required by R.C. 4112.05(G). In relying on federal case law in Plumbers, the court reasoned that the phrase “reliable, probative, and substantial evidence” was not defined by R.C. Chapter 4112. Id. at 196, 20 O.O.3d at 202-203, 421 N.E.2d at 131. The reverse implication is, of course, that in an action where the statutory terms at issue are defined by R.C. Chapter 4112, as in the instant case, it would not be necessary to resort to federal case law interpretation of Title VII to construe an analogous R.C. Chapter 4112 provision.

In Ingram, the court cited Plumbers as well as State ex rel. Republic Steel Corp. v. Ohio Civ. Rights Comm. (1975), 44 Ohio St.2d 178, 73 O.O.2d 478, 339 N. E.2d 658, in support of the proposition that Title VII case law is generally applicable to cases involving violations of R.C. Chapter 4112. Ingram, 69 Ohio St.3d at 92-93, 630 N.E.2d at 672. The issue in Republic Steel involved an interpretation of former R.C. 4112.05(B)3 concerning whether efforts to resolve alleged discriminatory practices by conciliation were a jurisdictional prerequisite to the proper issuance of a complaint by the Ohio Civil Rights Commission. The court applied federal case law interpreting Title VII in Republic Steel and in so doing reasoned that because Title VII contained a provision4 analogous to R.C. 4112.05(B), which “employ[ed] mandatory language identical to R.C. 4112.05(B),” it is proper to apply the rationale of those cases interpreting Title VII to R.C. 4112.05(B). (Emphasis added.) Republic Steel, 44 Ohio St.2d at 182-184, 73 O.O.2d at 480-481, 339 N.E.2d at 661-662. Unlike the situation in Republic Steel, the dispositive issue in the present action, R.C. 4112.01(A)(2)’s definition of “employer” is markedly different from the analogous Title VII provision.

As previously set forth herein, R.C. 4112.01(A)(2) defines “employer” as “any person employing four or more persons within the state, * * * and any person *299acting directly or indirectly in the interest of an employer.” (Emphasis added.) In contrast, under Title VII, “employer” is defined as “a person engaged in an industry affecting commerce who has fifteen or more employees * * * and any agent of such a person.” (Emphasis added.) Section 2000e(b), Title 42, U.S. Code. The differing numerosity requirements and uses of agency terminology indicate that Title VII’s definition of “employer” is far less reaching than the encompassing language of R.C. 4112.01(A)(2). Without doubt, the language employed by the General Assembly with regard to R.C. 4112.01(A)(2) is much broader in scope than that employed by the analogous Title VII provision.

The certifying district court and the respondents rely heavily on Wathen v. Gen. Elec. Co. (C.A.6, 1997), 115 F.3d 400. Wathen involved various claims of sexual harassment in violation of Title VII and Kentucky Revised Statutes Chapter 344, the Kentucky Civil Rights Act, against General Electric Company and three individual employees in their official and individual capacities. The Sixth Circuit Court of Appeals held that an individual employee/supervisor may not be held personally liable under Title VII absent meeting the definitional requirement of “employer” as defined by Section 2000e(b), Title 42, U.S. Code. The court of appeals further concluded that “[b]ecause KRS Chapter 344 mirrors Title VII,” individual employees/supervisors were not individually liable under Kentucky state law. Id. at 405.

Wathen is inapplicable to the instant action. The definitions of “employer” under Title VII and the Kentucky Civil Rights Act are essentially identical.5 As we have seen, the statutory definition of “employer” found in R.C. 4112.01(A)(2) differs in several critical aspects from its Title VII counterpart. Moreover, unlike R.C. Chapter 4112, the Kentucky statute was modeled after, and is virtually identical to, Title VII. Consequently, Kentucky courts have consistently followed federal law in interpreting its antidiscrimination statute. See Kentucky Comm. on Human Rights v. Commonwealth, Dept. of Justice, Bur. of State Police (Ky.App.1979), 586 S.W.2d 270, 271 (The Kentucky statute [Kentucky Rev. Statute 344.040] is virtually identical to the corresponding section of Title VII and therefore United States Supreme Court decisions regarding the federal provision are “most persuasive, if not controlling, in interpreting the Kentucky statute.”) (Emphasis added.); and Harker v. Fed. Land Bank of Louisville (Ky.1984), 679 S.W.2d 226, 229 (“The Kentucky age discrimination statute is specially modeled after the Federal law. Consequently, in this particular area we must consider the way the Federal act has been interpreted.”). Federal case law clearly has a *300greater controlling effect interpreting Kentucky’s antidiscrimination statute than it does in regard to R.C. Chapter 4112.

Based on the foregoing, we believe that the clear and unambiguous language of R.C. 4112.01(A)(1) and (A)(2), as well as the salutary antidiscrimination purposes of R.C. Chapter 4112, and this court’s pronouncements in cases involving workplace discrimination, all evidence that individual supervisors and managers are accountable for their own discriminatory conduct occurring in the workplace environment. Accordingly, we answer the certified question in the affirmative and hold that for purposes of R.C. Chapter 4112, a supervisor/manager may be held jointly and/or severally liable with her/his employer for discriminatory conduct of the supervisor/manager in violation of R.C. Chapter 4112.

Judgment accordingly.

Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Moyer, C.J., Cook and Lundberg Stratton, JJ., dissent.

. Former R.C. 4112.05(B) is substantially similar to its current version (R.C. 4112.05[B][4]), and provided in pertinent part that “[w]henever it is charged * * * that any person * * * has engaged or is engaging in unlawful discriminatory practices, * * * the commission may initiate a preliminary investigation. * * * If it determines after such investigation that it is probable that unlawful discriminatory practices have been or are being engaged in, it shall endeavor to eliminate such practices by informal methods of conference, conciliation, and persuasion.” (135 Ohio Laws, Part I, 1892-1893.)

. Section 2000e-5(b), Title 42, U.S.Code provides in part that “[w]henever a charge is filed by or on behalf of a person claiming to be aggrieved * * * alleging that an employer * * * has engaged in an unlawful employment practice, the Commission * * * shall make an investigation thereof. * * * If the Commission determines after such investigation that there is reasonable cause to believe that the charge is trae, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. * * * ”

. Pursuant to Ky.Kev.Stat.Ann 344.030(2), “employer” is defined as including “a person who has engaged in an industry affecting commerce who has fifteen (15) or more employees * * * and any agent of that person.”