NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0488n.06
Nos. 16-4054/16-4094
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Aug 22, 2017
DEBORAH S. HUNT, Clerk
PAUL MATUS, )
)
Plaintiff-Appellee/Cross-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
LORAIN COUNTY GENERAL HEALTH )
NORTHERN DISTRICT OF
DISTRICT, et al., )
OHIO
)
Defendant-Appellant/Cross-Appellees. )
)
BEFORE: SILER, CLAY, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Defendant-Appellant Lorain County General
Health District (the “health district”) appeals the district court’s denial of its motions for
judgment as a matter of law and for a new trial, as well as the court’s entry of a $615,175.18
judgment in favor of its former medical director, Plaintiff-Appellee Paul Matus, on Matus’s
breach-of-contract and retaliation claims, based on a remitted jury verdict of $1,365,175.18.
Matus cross-appeals the remittitur and the grant of summary judgment to the health district on
three other claims. For the reasons that follow, we (1) reject the health district’s challenges to
the jury’s verdicts and the court’s rulings, (2) agree with the health district that remittitur is
required under Ohio law, and (3) agree with Matus that the district court erred in choosing the
remittitur amount. We AFFIRM in part, and VACATE and REMAND in part.
Nos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.
I
A
The Lorain County General Health District is a state agency responsible for public-health
services in Lorain County, Ohio. A board of health (the “board”) governs it, and a
commissioner, appointed by the board, manages it day to day.
Paul Matus was the health district’s medical director from 1991 through early 2013, when
the board discharged him. Matus’s employment agreement provided that he would serve as
medical director from March 31, 2009, at an annual salary of $48,000, “for an indefinite and
continuing term” and that the agreement would be terminable on thirty days’ written notice for
“cause,” including, but not limited to, “breach or neglect of duty, violation of any law,
dishonesty, insubordination, or gross misconduct.” R. 1-1, PID 34–35. He contends he was
discharged without “cause” and in retaliation for participating in a workplace investigation.
In July 2012, commissioner Ken Pearce announced his intention to retire. After retiring,
Pearce would begin drawing retirement benefits, and, after a sixty-day waiting period, would
return to the health district as interim commissioner, allowing him to receive a salary as well.
Edward von Hofen, the board’s president and Matus’s brother-in-law, told Matus at a backyard
picnic that he was uncomfortable with Pearce’s plan. Matus replied that the arrangement is “not
uncommon,” but agreed that it would be good for the health district to have new leadership.
Trial Tr., R. 109-1, PID 4062–63. At the board’s August 15 meeting, von Hofen opposed
Pearce’s plan to retire and then return, but the board voted to accept it. Tanas Wilcox, the health
district’s nursing director, testified that after the August 15 meeting, Pearce told her that he
would fire her and that “someone else was going to take care of [Matus].” Trial Tr., R. 114, PID
4400.
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About two weeks later, Pearce wrote to Benjamin Davey, a prosecutor who served as
counsel to the health district, about a conversation he had with board-employee Stephanie
Charles. This conversation took place a week before the August 15 board meeting and three
weeks before Pearce reported it:
Ms. Charles stated that while she was instructing Dr. Matus on
how to access and use the Emergency Alertfind website, he sat
uncomfortably close to her and began a conversation of a personal
nature including comments alluding to his relationship with his
wife. His statements included characterizing his wife as acting old
and going to bed like an “old woman.” Stephanie commented that
these comments made her uncomfortable and were unrelated to the
work environment and of a sexual nature that she felt she would be
in a very difficult situation if Dr. Matus were to be named health
commissioner.
Aug. 28, 2012 Lett., R. 58-9, PID 786.
Charles testified that during the winter of 2010/2011, she trained Matus on how to use a
software program. During the training he discussed personal matters while sitting uncomfortably
close to, but never touching, her: “I don’t think he was aware that I felt like my personal space
was violated. I don’t think he took that into consideration.” Trial Tr., R. 108, PID 2876.
Plaintiff’s expert, organizational-behavior professor Susan Case, testified that she did not
“think that the statement by Stephanie Charles that she was made uncomfortable warranted an
outside investigation.” Trial Tr., R. 110, PID 3430. But the prosecutor’s office, assistant
prosecutor Gerald Innes testified, determined that given Matus’s stature, it would be best to
engage an outside firm to investigate. Prosecutors briefed the board at its September 12 meeting
that an employee complained of Matus making inappropriate comments; they recommended an
investigation, which the board hired Clemans, Nelson & Associates (“CNA”), a human-resources
firm, to conduct.
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Between October 26 and November 5, CNA investigator Sandy Conley interviewed five
young females who were current or former employees of the health district, including Charles.
During the investigation, Charles confirmed that there was no inappropriate touching by Matus,
that he sat uncomfortably close to her, and that she was uncertain whether he realized he was
sitting too closely. Other interviewees described Matus’s conduct toward younger women in the
office as “awkward,” “creepy,” “weird,” or “overly flirtatious,” including compliments about
their personal appearances. Conley Report, R. 58-17, PID 817. But the interviewees were not
offended by the comments, explaining that some in the office viewed them as part of Matus’s
personality, or as an example of “generational differences.” Id. at PID 817–18.
Conley found that although Matus did not sexually harass Charles, and no other evidence
suggested that Matus engaged in sexual harassment, he should nevertheless be counseled to
avoid making comments about the appearance of female employees and to respect personal
space. Her report suggested that the disconnect between Matus and younger female employees
could be generational. Conley testified that she did not interview Matus because she did not
believe his conduct was sexual harassment, and that she would have interviewed him if she had
concluded otherwise.
Conley delivered her conclusions orally to Davey on Friday, December 7. The next day,
Matus received a call from Laura Baus-Fenick, a former health-district employee whom Conley
interviewed, to alert him to the investigation. She testified that she told Matus she believed
Charles was the source of the investigation because her name was conspicuously missing from
the interview list. Matus testified that this call from Baus-Fenick sent him into a panic, leaving
him embarrassed, humiliated, and confused. Seeking answers, he asked the health district’s
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administrative director, Tonya Kollen, “is there something going on about me? . . . . Am I being
investigated?” Trial Tr., R. 114, PID 4093. Kollen responded “No, Dr. Matus, no.” Id.
On December 13, Conley presented her findings to Dave Covell, then the acting
commissioner of the health district. Conley told him that Matus had not engaged in sexual
harassment, and that she found only a “sensitivity issue” that should be addressed with training.
Trial Tr., R. 109-1, PID 3905. After the board heard a summary of Conley’s findings at its
December 12 board meeting, it instructed Covell “to tell [Matus] that . . . there were a few
complaints, there was an investigation done, and that it turned out that there was not, it did not
amount to sexual ha[]rassment, but that there were some sensitivity training needs . . . .”. Trial
Tr., R. 108, PID 3142. Covell planned to talk to Matus at the lunch the two planned to have two
days later. Covell testified that at that time the matter was still open:
The idea was [after I spoke to Matus] he would have an
opportunity to talk to the Board and the Board could say, “Here is
what happened, this is what it is, we want to talk to you a little
about it,” talk about sensitivity, and Dr. Matus could explain he
didn’t mean it that way or whatever you want to explain, and at
that point we’d say okay, we’ll move on with sensitivity training,
and that would be it.
Id. at PID 3144.
Covell had lunch with Matus on December 14:
I told him the results of what happened and that we had this
preliminary result, but we didn’t have the final written document,
so it wasn’t officially, I guess, over until that point, yes, so I did
tell him that here’s the results, here’s what would happen, there
wouldn’t be any discipline, it was a sensitivity issue, there would
be some sensitivity training, and the final document would easily
be there by the next month board meeting and at that point he
could talk to the Board or whatever.
Trial Tr., R. 109-1, PID 3911.
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Three days after the lunch, Covell sent an email to the board:
. . . I told [Matus] that when the board has the entire investigation
reported to you that there would be a more formal
conversation. . . . Hopefully, he will digest the conversation prior
to the board meeting and we can put this behind us . . . .
Dec. 17, 2012 Email, R. 58-20, PID 834–35.
Despite the plan for Matus to address the board, Covell would not tell him what the
factual basis of the investigation was. At trial, Covell agreed when plaintiff’s counsel asked him
whether he told Matus “that there were multiple complaints from women.” Trial Tr., R. 109-1,
PID 3913 (emphasis added).
Matus testified that he had no information about the investigation, apart from suspecting
that Charles was the source, and that being kept in the dark about the complaints and allegations
caused him to suffer substantial anxiety and emotional distress. On January 6, he decided to call
Charles’s ex-husband, David Charles (“David”), with whom he was acquainted, seeking
information to use in preparing for the board’s upcoming meeting.
Matus recognized that the call would be sensitive, resolved to “be very careful,” and did
not want to “insult” David. Id. at PID 4112. He first asked whether David was aware of the
investigation; David said he was not. Next, Matus asked “[d]o you think that Stephanie, you
know, would be capable of doing that for some reason?” David replied “[n]ot the Stephanie I
know.” Id. Matus testified that he made no disparaging comments, explaining that he was just
desperate for information because he did not want to go before the board unprepared.1 Matus
testified that he asked only a few questions about Charles at the beginning of the fifty-two
minute call, the balance of the conversation being about other topics.
1
He did, however, admit that asking David a question to the effect of “is she capable of doing something
like that,” could be perceived as insulting. Id. at PID 4114.
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David testified that he was acquainted with Matus, but did not know him well, and that
during the call, Matus asked him repeatedly whether Charles was a woman of integrity. Matus
also asked whether Charles would fabricate a story, implying that she was dishonest; David
responded that she was “a woman of good morality.” Trial Tr., R. 114, PID 4500. David
acknowledged that Matus did not directly accuse Charles of being a liar or of other wrongdoing,
nor did he directly attack her. David confirmed that he and Matus discussed topics other than
Charles, including scuba diving and a high-school forensics class. After hanging up, David
called Charles, who became upset that Matus had contacted David.
Charles notified Kollen and Covell. Although Charles was “infuriated” by Matus’s call
to her ex-husband, which she considered harassing, she admitted at trial that the call did not have
an adverse effect at work. Trial Tr., R. 108, PID 2903, 2905–07. Kollen was surprised that
Matus called David, and considered the call to be retaliatory toward Charles. Case disagreed,
testifying that under the health district’s personnel policy, the retaliated-against employee’s work
must be adversely affected, a condition not satisfied by the call to David.2
Matus was not allowed to address the board at its January 9 meeting. Board vice-
president William Spreng testified that Covell told the board during its executive session, from
which Matus was excluded, that Matus called Charles’s ex-husband and made “disparaging”
comments about her. Trial Tr., R. 108, PID 3106–07. The board reviewed no documentation,
but it considered the call to be an “[e]xtremely serious” matter, indeed, grounds for discharge.
Id. at PID 3107–08. Spreng and other board members agreed that Matus should be given an
opportunity to resign. The board instructed Spreng, Covell, and Innes to tell Matus that it was
2
The policy provides that it “shall be unlawful, inappropriate and a violation of this policy for any
employee who is the subject of a sexual harassment investigation to take retaliatory action so as to affect the work
environment of the complainant or any person involved in the investigation.” R. 58-5, PID 776.
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aware of the call to David, that it considered the call to be a “very serious matter,” and to
recommend that he resign rather than be discharged. Id. at PID 3109.
Matus testified that after the executive session, Covell motioned him over and said “[t]he
Board wants to know if you will come to a meeting on Friday and have a meeting.” Trial Tr., R.
109-1, PID 4118. Matus demanded to know what the meeting was about: “Is it about this
investigation? . . . . I want [sic] know everything. . . . . I’m just literally, physically dying. I
can’t eat, I can’t sleep. I need to know. Will you please tell me?” Id. Covell, according to
Matus, replied “[w]e’ll tell you everything,” and when asked, told Matus that he did not need a
lawyer and that this would be a private meeting. Id. at PID 4118–19. Spreng, Covell, Innes, and
Matus attended the meeting. Innes refused to give Matus information about the sexual-
harassment investigation, adding that “[w]e have a bigger problem now.” Id. at PID 4121–22.
Innes told Matus that the board intended to discharge him because he had reached into Charles’s
personal life by contacting her ex-husband. Matus testified that Innes threatened him: “[Y]ou
have five business days to resign and go away quietly or it is going to become public. . . . And
we’ll terminate you publicly.” Id. at PID 4130.
Matus refused to resign. The board resolved to discharge him for “cause,” subject to a
pre-disciplinary hearing presided over by neutral Frank Hatfield. It brought seven “cause”
charges against him. Hatfield found misconduct on Matus’s part on three: that he (1) made
“personal and derogatory attacks” on the character of female employees, including Charles;
(2) contacted David; and (3) threatened to blow the whistle on misconduct in the health district,
but refused to provide supporting documentation. R. 58-29, PID 858–59.
The board voted on April 10 to terminate Matus’s employment for “cause” based on
“engag[ing] in multiple acts of misconduct and with respect to your interaction with District
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employees and family members.” Apr. 12, 2013 Lett., R. 75-16, PID 2372. The termination was
effective May 17, and this action followed.
B
Matus brought suit in state court against the health district, Pearce, Spreng, Covell, and
Innes, alleging nine counts: (1) breach of contract, (2) breach of contractual good faith, (3) state-
law age discrimination, (4) state-law age-based hostile work environment, (5) state-law unlawful
retaliation, (6) invasion of privacy (false light), (7) defamation, (8) intentional affliction of
emotional distress (IIED), (9) and First Amendment retaliation under 42 U.S.C. § 1983. The
defendants removed the action based on the First Amendment retaliation claim, and Matus
amended his complaint to drop the defamation and invasion-of-privacy claims.
Both Matus and defendants sought summary judgment. The district court denied Matus’s
motion in its entirety; it granted summary judgment in part to defendants on Matus’s First
Amendment, age-discrimination, hostile-work-environment, and IIED claims; it denied summary
judgment on the contract and state-law retaliation claims.3
After the close of Matus’s case in chief, the health district moved for judgment as a
matter of law (“JMOL”); the district court did not address the motion at that time,
acknowledging that the health district had reserved its right to renew the motion after the verdict.
See Fed. R. Civ. P. 50(a)–(b).
3
The district court initially held that Matus’s participation in the January 11 meeting qualified as
“participating” in an investigation under Ohio law, but that his call to David did not. The court reversed course at
trial, however, and allowed the call to David to be considered in relation to the retaliation claim: “when you hear
more of the evidence and it becomes more clear, I think it was wrong to exclude the phone call aspect on the
retaliation claim.” Trial Tr., R. 111, PID 3722. Before closing arguments, the court instructed the jury that it could
consider the call to David in deciding whether the health district retaliated against Matus. Contrary to the health
district’s argument on appeal, this decision did not prejudice it. The health district consistently argued that it
discharged Matus because he retaliated against Charles. If true, this assertion would mean that there was “cause” to
discharge Matus (i.e., the board did not breach the contract) and that his call to David was misconduct, not mere
participation in an investigation (i.e., the board did not retaliate). Nothing stopped the health district from making
its case that Matus retaliated against Charles and as a result was discharged for cause. And had the jury believed
this argument, it would have returned verdicts in the health district’s favor.
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Matus presented the deposition of certified public accountant and valuation expert
Charles Ciuni regarding his economic damages. Ciuni calculated that Matus’s economic
damages—from past and future lost wages and benefits—amounted to $365,175.18.
Additionally, Matus testified that he suffered considerable physical and mental distress from the
investigation and his discharge.
The district court instructed the jury that economic damages for the breach-of-contract
and retaliation claims would be the same and should not be duplicated, and that it was permitted
to award non-economic damages only for the retaliation claim:
I told you what the breach of contract damages were.
***
[I]f you deliberated on Count 1 [breach of contract] and found in
favor of Dr. Matus and then awarded damages per these
instructions in Count 1 . . . and find in Dr. Matus’ favor on Count 2
[retaliation] . . . [s]ome of the damages are duplicative is what I’m
saying. That means you wouldn’t award double damages if you
find in favor of Dr. Matus on Count 1 and Count 2. However,
there are some damages that Dr. Matus can recover in Count 2 that
are not covered in Count 1.
***
So when I read all the damage calculations in Count 2, keep in
mind that in the event you find in favor of Dr. Matus on Count 1,
part of the damages you wouldn’t consider in Count 2 because they
are duplicative. I think that’s clear.
Trial Tr., R. 112, PID 3817.
The jury returned verdicts in favor of Matus, awarding him $365,175.18 (the same
amount calculated by Ciuni) in economic damages on his contract claim, and $0 economic and
$1,000,000 non-economic damages on his retaliation claim.
After verdict, the health district renewed its JMOL motion. See Fed. R. Civ. P. 50(b). It
argued that the law and evidence could not have supported Matus’s contract and retaliation
claims because (1) he was an unclassified employee and thus his employment contract was void,
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(2) he was terminated for cause, (3) he did not participate in “protected activity” under Ohio law,
(4) and, in any case, his participation in the investigation was not a but-for cause of his
discharge, but rather he was discharged for retaliating against Charles.
In the alternative, the health district sought a new trial, arguing that the jury’s verdict was
against the manifest weight of the evidence in light of Hatfield’s finding that Matus engaged in
misconduct by calling David. It also argued that a new trial, or remittitur, was warranted
because the damages were duplicative between the contract and tort claims, and there was no
evidence it caused physical or mental injury to Matus. Finally, it argued that the $1,000,000
award for the retaliation claim exceeded Ohio’s statutory cap on tort non-economic damages.
The district court denied the JMOL and new-trial motions and granted the remittitur
motion. It entered judgment in favor of Matus, reducing his non-economic damages to
$250,000.
II
A. Judgment as a Matter of Law
We review de novo the denial of a motion for JMOL. Braun v. Ultimate Jetcharters,
LLC, 828 F.3d 501, 509 (6th Cir. 2016). Judgment as a matter of law is appropriate only where
“the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to
find for the [non-moving] party[.]” Fed. R. Civ. P. 50(a)(1). In diversity cases, we apply the
forum state’s standard of review to sufficiency-of-the-evidence challenges. Aetna Casualty &
Surety Co. v. Leahey Constr. Co., 219 F.3d 519, 532 (6th Cir. 2000). Under Ohio law:
The evidence adduced at trial and the facts established by
admissions in the pleadings and in the record must be construed
most strongly in favor of the party against whom the motion [for
judgment notwithstanding the verdict] is made, and, where there is
substantial evidence to support his side of the case, upon which
reasonable minds may reach different conclusions, the motion
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must be denied. Neither the weight of the evidence nor the
credibility of the witnesses is for the court’s determination . . . .
Posin v. A.B.C. Motor Court Hotel, Inc., 344 N.E.2d 334, 338 (Ohio 1976).
Breach of Contract
In order to establish a breach of contract, “it must be shown by a preponderance of the
evidence that (1) a contract existed, (2) one party fulfilled his obligations, (3) the other party
failed to fulfill his obligations, and (4) damages resulted from that failure.” Blake Homes, Ltd. v.
FirstEnergy Corp., 877 N.E.2d 1041, 1052 (Ohio Ct. App. 2007). All contracts formed under
Ohio law contain an implied covenant of good faith and fair dealing. Third Fed. Sav. & Loan
Ass’n of Cleveland v. Formanik, 64 N.E.3d 1034, 1048 (Ohio Ct. App. 2016) (collecting cases).
“‘Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed
common purpose and consistency with the justified expectations of the other party.’ . . . [B]ad
faith may consist of inaction, or may be the ‘abuse of a power to specify terms, [or] interference
with or failure to cooperate in the other party’s performance.’” Littlejohn v. Parrish, 839 N.E.2d
49, 54 (2005) (quoting Restatement (Second) of the Law of Contracts § 205 cmts. a, d.) (final
alteration in original).
On appeal, the health district argues that there was no legal basis for the jury’s contract-
claim verdict because Matus was an unclassified employee, making his discharge-only-for-cause
job protection void as against public policy. Public employees in Ohio are either “classified” or
“unclassified.” Classified employment entitles the employee to retain his position “during good
behavior and efficient service,” O.R.C. § 124.34(A), whereas unclassified employees do not
receive tenure protection and may be discharged without cause. See State ex. rel. Trimble v.
State Bd. of Cosmetology, 364 N.E.2d 247, 249 (Ohio 1977).
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Under § 3709.13, “[e]mployees of [a general health district] board, other than the
commissioner, shall be in the classified service of the state, and all employees of the board may
be removed for cause by a majority of the board.”
The health district argues that § 3709.13 deals with the appointment of staff, e.g., nurses
and physicians other than the medical director, noting that those staff members are appointed on
the “recommendation” of the commissioner. In contrast, under § 3709.11, when the
commissioner is not a physician, a medical director is appointed directly by the board. The
health district is correct up to that point, but it does not overcome § 3709.13’s plain language that
“employees . . . other than the commissioner, shall be in the classified service of the state . . . .”
When § 3709.13 expressly carves the commissioner out of the classified service, it implies that
all other board employees are classified, including the medical director. The health district
counters this interpretation by arguing that because medical directors hold responsibilities that
physician commissioners otherwise would have, they too should be carved out of the classified
service. But this public-policy argument conflicts with § 3709.13’s express grant of civil-service
protections to all health-district employees other than the commissioner. Thus, the health district
has not shown that the contract was void as a matter of law.
As for the facts, the jury saw the employment agreement and the health district’s
harassment policy. It also heard testimony from witnesses involved in the investigation, the
phone call to David, and the events surrounding Matus’s discharge. In closing arguments, the
health district told the jury that Matus’s call to David was retaliatory and justified his discharge
for “cause.” Matus, however, contended that the call to David was not retaliatory and thus there
was no “cause” basis for his discharge. Reasonable minds could disagree, but the evidence was
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such that the jury, after weighing it, could find a breach of contract. The district court properly
denied the health district’s motion for JMOL.
Ohio State-Law Retaliation
Ohio law prohibits retaliation against an employee who “has made a charge, testified,
assisted, or participated in any manner in any investigation, proceeding, or hearing under [Ohio’s
civil-rights law.]” O.R.C. § 4112.02(I). Ohio follows the McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973), framework for establishing prima facie cases of unlawful retaliation.
Greer-Burger v. Temesi, 879 N.E.2d 174, 180 (Ohio 2007). To establish a prima facie case, a
plaintiff must show that (1) he engaged in a protected activity, (2) the defendant was aware that
he engaged in that activity, (3) the employer took an adverse employment action against him,
and (4) there was a causal connection between the protected activity and adverse action. Id.
This prima facie case may be rebutted by the employer’s proffer of a legitimate, non-retaliatory
reason for the adverse action, shifting the burden to the employee to show that the proffered
reason was not the true reason. Id. (citations omitted).
The health district focuses on the phone call to David both to attack Matus’s prima facie
case and to rebut it. It argues that Matus’s call to David was not “protected activity” because
Matus was not participating in an “investigation,” and that Matus was fired because the call was
retaliatory toward Charles, in violation of its policy. On this point too the JMOL motion fails.
The jury heard testimony that when Matus called David, the investigation was still open and the
parties expected that Matus would appear before the board in connection with it. Matus testified
that he had been unable to obtain information about the investigation, was anxious about being
unprepared when he appeared before the board, and contacted David not to retaliate against
Charles, but rather to prepare. Hearing this evidence and the accounts of the conversation, the
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jury was free to find that (1) Matus participated in the investigation by seeking information about
it, (2) that the health district knew he sought this information, and (3) that the health district
ultimately terminated his employment because he did so. Further, the jury heard sufficient
evidence to reject the health district’s explanation that it believed that Matus’s call to David was
itself retaliatory and thus grounds for his discharge.
B. Motion for a New Trial
We review the denial of a motion for a new trial for abuse of discretion. Duncan v.
Duncan, 377 F.2d 49, 53 (6th Cir. 1967). A district court must deny such a motion “if the
verdict is one which could reasonably have been reached, and the verdict should not be
considered unreasonable simply because different inferences and conclusions could have been
drawn or because other results are more reasonable.” J.C. Wyckoff & Assocs., Inc. v. Standard
Fire Ins. Co., 936 F.2d 1474, 1487 (6th Cir. 1991). The health district’s arguments in support of
the motion for a new trial are the same as for the motion for JMOL, as is the result. Matus stated
proper claims for breach of contract and retaliation and the jury’s verdicts were supported by
sufficient evidence. Thus, the district court did not abuse its discretion in denying the motion.
C. Remittitur
Both the health district and Matus raise issues on appeal regarding remittitur, and we
address them together. We review the denial of a motion for remittitur for abuse of discretion.
Smith v. John Swafford Furniture Co., Inc., 614 F.2d 552, 553 (6th Cir. 1980). We review
questions of law de novo. In re Town Center Flats, LLC, 855 F.3d 721, 724 (6th Cir. 2017).
Because the amount of damages in a personal-injury action “is a matter within the
province of the jury,” Carter v. Simpson, 476 N.E.2d 705, 708 (Ohio Ct. App. 1984), remittitur is
proper only “if the jury’s award is so excessive as to appear to be the result of passion or
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prejudice, or if the amount awarded is against the manifest weight of the evidence.” Menda ex
rel. Justin v. Springfield Radiologists, Inc., No. 2001-CA-91, 2002 WL 31761562, at *2 (Ohio
Ct. App. Dec. 6, 2002). Awards may also “be altered as a matter of law.” Arbino v. Johnson &
Johnson, 880 N.E.2d 420, 431 (Ohio 2007) (emphasis in original). Ohio law places a statutory
cap on non-economic damages for most torts. Under O.R.C. § 2315.18(B)(2), these awards are
limited to $250,000, or three times economic loss (to a $350,000 maximum per plaintiff); O.R.C.
§ 2315.18(F)(1) deprives Ohio courts of jurisdiction to enter judgments in excess of statutory
caps.
The district court granted the health district’s remittitur motion and applied
§ 2315.18(B)(2) to reduce the jury’s $1,000,000 non-economic-damages award on the retaliation
claim to $250,000. The health district argues that was still too much, because the “record was
devoid of any evidence of intangible emotional loss to justify a large non-economic award.”
Appellant’s Br. at 47. We disagree. The jury heard testimony from Matus about the substantial
negative physical and emotional effects he suffered from the health district’s retaliation.
Although non-economic damages were supported only by Matus’s testimony, the district court
did not abuse its discretion in rejecting the argument that the jury’s award was the result of
passion or prejudice or against the manifest weight of the evidence.
The health district also argues that the tort award was improperly duplicative of the
contract award. In support of this argument, it cites authority that a contract claim generally
cannot also be recast as a tort claim. See, e.g., Wolfe v. Continental Cas. Co., 647 F.2d 705, 710
(6th Cir. 1981) (“The still valid rule of Ketcham v. Miller, []136 N.E. 145 ([Ohio] 1922), forbids
parties to convert contract actions into tort actions by attacking the motives of a breaching party,
as the motive of a breaching party is irrelevant to a contract action.”). But this line of cases is
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inapposite. Ketcham held that the allegedly wrongfully evicted tenants’ complaint stated a claim
only for breach of their lease—not for a tort—and thus they could not obtain punitive damages.
Ketcham, 139 N.E. at 146. Wolfe was a statute-of-limitations case dealing with an insurer’s bad-
faith refusal to settle and the insureds’ suit for the resulting out-of-pocket costs not covered by
their policy limit. In that case, we observed that “Ohio courts would view actions to recover an
amount in excess of policy limits as arising exclusively in tort, unless the insurance contract
expressly delineates a standard of conduct by which the lawyering of the insurance company can
be measured.” Wolfe, 647 F.2d at 709. Contrary to the health district’s argument, these cases
recognized that a set of facts can support both a breach-of-contract and a tort claim. Here,
Matus’s tort claim is based on Ohio’s statutory prohibition on retaliation against employees who
engage in certain protected activities, including participating in investigations. O.R.C.
§ 4112.02(I); cf. also Helmick v. Cincinnati Word Processing, Inc., 543 N.E.2.d 1212, 1215
(Ohio 1989) (reversing summary judgment to employer on employee’s breach-of-contract and
common-law tort claims).
Additionally, the health district’s argument that the jury awarded duplicative damages is
not supported by the record. The district court instructed the jury that economic damages for the
breach-of-contract and the retaliation claims would be the same and could not be duplicated.
After the close of evidence, the district court presented draft jury instructions to the parties.
Neither objected to its plan to instruct the jury to avoid duplicative economic damages.
The jury followed this instruction. It found that the health district breached the contract
and awarded Matus $365,175.18 in economic damages. It also found that the health district
unlawfully retaliated, and on that count it awarded Matus $1,000,000 in non-economic damages,
but $0 in economic damages. These awards are clearly not duplicative.
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Matus cross-appeals the district court’s application of O.R.C. §§ 2315.18(B)(2) and
(F)(1) to remit the $1,000,000 non-economic award. He argues, relying on the phrase “[a] court
of common pleas has no jurisdiction to enter judgment . . . in excess of [§ 2315.18’s] limits,” that
the caps set out in § 2315.18 do not apply in federal court, but rather only in the Ohio courts of
common pleas. Here, the district court sat in diversity and properly followed the substantive law
applicable in Ohio courts. See Palmer v. Fox Software, Inc., 107 F.3d 415, 418 (6th Cir. 1997).
In the alternative, Matus argues that even if §§ 2315.18(B)(2) and (F)(1) apply, the
proper remitted amount is $350,000, not $250,000. The health district responds that a different
statute, which caps non-economic damages against “political subdivisions” at $250,000, is
applicable, O.R.C. § 2744.05(C)(1). It is not certain whether “general health districts” are
“political subdivisions” under this statute. Cf. id. at § 2744.01(F) (defining “political
subdivision”). But, in any event, this statute states that it does not apply to actions by an
employee “relative to any matter that arises out of the employment relationship between the
employee and the political subdivision.” Id. at § 2744.09(B). Thus, the district court properly
turned to §§ 2315.18(B)(2) and (F)(1).
The $365,175.18 in economic damages allocated to the contract claim applied to the
retaliation claim as well because the jury found for Matus on both claims and the district court
instructed the jury that the economic damages would be the same for both claims and should not
be duplicated.
Thus, the properly remitted non-economic-damages award is $350,000 because the
statute allows up to three times the economic damages as non-economic damages (here,
$1,095,525.54), subject to a $350,000 maximum. We therefore vacate this portion of the
judgment and remand to the district court for entry of a $350,000 judgment on Count 2.
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D. Summary Judgment
Matus cross-appeals the grant of summary judgment on his hostile-work-environment,
IIED, and First Amendment retaliation claims. We review the grant of summary judgment de
novo. Gillis v. Miller, 845 F.3d 677, 683 (6th Cir. 2017). Summary judgment is appropriate
when the movant shows that “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Because the jury awarded Matus his full economic and non-economic damages, we need
not address his hostile-work-environment and IIED claims. See Polk v. Yellow Freight Sys., Inc.,
876 F.2d 527, 534 n.1 (6th Cir. 1989). We consider his First Amendment retaliation claim,
however, because it carries the added potential for attorney fees under 42 U.S.C. § 1988(b).
A plaintiff establishes a prima facie case of First Amendment retaliation when he shows
that (1) he engaged in activity protected by the First Amendment, (2) he suffered an adverse
action that would likely chill a person of ordinary firmness from continuing to engage in the
protected activity, and (3) the adverse action was at least in part motivated by the protected
activity. Leary v. Daescher, 228 F.3d 729, 737 (6th Cir. 2000) (citation omitted).
Public employees’ speech is protected by the First Amendment when they speak as
citizens addressing matters of public concern. Weisbarth v. Geauga Park Dist., 499 F.3d 538,
542 (6th Cir. 2007). However, when they “make statements pursuant to their official duties”
they do not speak “as citizens for First Amendment purposes.” Garcetti v. Ceballos, 547 U.S.
410, 421 (2006).
Matus argues that he was retaliated against due to his brother-in-law’s opposition to
Pearce’s retire/rehire plan, and that this constituted First Amendment retaliation. He lacks
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standing, however, to assert that he was retaliated against for his brother-in-law’s speech.
Moody v. Michigan Gaming Control Bd., 847 F.3d 399, 402 (6th Cir. 2017).
He also argues that he was directly retaliated against for criticizing the competence of the
board and its investigation during his January 11 meeting with Spreng, Covell, and Innes.
However, these comments were made in the course of Matus’s official employment and thus
cannot give rise to a First Amendment retaliation claim. Garcetti, 547 U.S. at 421. The district
court did not err in granting summary judgment on this claim.
III
For the foregoing reasons, we VACATE the judgment of the district court and
REMAND with instructions to enter judgment, and for further proceedings, consistent with this
opinion. We AFFIRM in all other respects.
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