 [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.
