         [Cite as Daudistel v. Village of Silverton, 2014-Ohio-5731.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO


MICHAEL DAUDISTEL,                                     :       APPEAL NO. C-130661
                                                               TRIAL NO. A-1107111
        Plaintiff-Appellant,                           :

  vs.                                                  :           O P I N I O N.

VILLAGE OF SILVERTON,                                  :

  and                                                  :

MARK WENDLING,                                         :

    Defendants-Appellees,                              :

  and                                                  :

JOHN AND JANE DOE EMPLOYEES                            :
AND ELECTED AND APPOINTED
OFFICIALS OF THE VILLAGE OF                            :
SILVERTON,
                                                       :
         Defendants.
                                                       :



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed from is: Affirmed

Date of Judgment Entry on Appeal: December 26, 2014


Hardin, Lazarus, Lewis & Marks, LLC, Donald Hardin and David E. Hardin, for
Plaintiff-Appellant,

Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere and John W.
Hust, and Dinsmore & Shohl and Bryan E. Pacheco, for Defendants-Appellees.



Please note: this case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.

          {¶1}   Plaintiff-appellant   Michael   Daudistel,   former   police   chief   for

defendant-appellee the Village of Silverton (“the Village”), appeals from the

judgment of the trial court granting a motion for judgment on the pleadings in favor

of the Village and its city manager, defendant-appellee Mark Wendling, on claims for

disability discrimination, hostile work environment, intentional and negligent

infliction of emotional distress, violation of due process, and civil conspiracy. We

affirm.

                                  Background Facts

          {¶2}   Daudistel, a longtime civil service employee of the Village, who was

diagnosed with cancer during his employment, was terminated by the Village

pursuant to allegations of wrongdoing. Daudistel appealed the termination to the

Silverton Civil Service Commission (“the Commission”), but he retired during the

pendency of his civil service appeal and began receiving retirement benefits.

                  Dismissal of the Prior Administrative Action

          {¶3}   After the Village accepted Daudistel’s retirement as a “resignation,” it

moved to dismiss the civil service appeal based on Commission Rule 14.01 that

provided the following:

          The acceptance by the City Manager of the resignation of a person

          discharged before a final action on the part of the Commission will be

          considered a withdrawal of the charges and the separation of the

          employee concerned shall be recorded as a resignation and the

          proceeding shall be dismissed without judgment.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}   After a hearing on the Village’s motion to dismiss, the Commission

determined that Daudistel’s retirement was elective, as it was not involuntary due to

age, and that such a retirement was the equivalent of a resignation for purposes of

the rule. In accordance with the rule, it dismissed Daudistel’s civil service appeal

without judgment.

       {¶5}   Daudistel then appealed that decision to the Hamilton County Court of

Common Pleas in the case numbered A-1001251. Daudistel brought the appeal

pursuant to R.C. 2506.01 and 124.34, both of which provide a common pleas court

with jurisdiction to review certain administrative decisions. The case was assigned to

a magistrate, who determined that the Commission’s decision should be affirmed.

The magistrate explained that by retiring during the pendency of the civil service

appeal, Daudistel was able to convert his discharge for cause, which jeopardized his

retirement benefits, to a resignation in good standing with all of his retirement

benefits intact. Daudistel objected to the magistrate’s decision, but the trial court

overruled the objections and adopted it.

       {¶6}   During the appeals to the Commission and to the court of common

pleas, Daudistel persistently argued that his retirement was not voluntary, but rather

a “constructive discharge,” a position that was rejected by the Commission and the

court. The court also rejected Daudistel’s challenges to the pretermination process.

Daudistel did not appeal the trial court’s judgment affirming the Commission’s

decision dismissing Daudistel’s administrative appeal. Instead, he filed the instant

action in the court of common pleas, bringing claims against the appellees for

disability discrimination, hostile work environment, intentional and negligent

infliction of emotional distress, violation of due process, and civil conspiracy.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



                      The Complaint in the Instant Action

       {¶7}      According to the allegations of the amended complaint, in December

2004, Daudistel entered into an employment contract with the then city, and now

village, of Silverton, concerning his civil service position as police chief. Wendling,

who was the city manager responsible for the day-to-day operations of the Village,

signed the contract on behalf of the Village. The contract specified that the Village

had created the Chief of Police position pursuant to the governing charter, and

provided for automatic yearly renewals of the employment contract, unless the

parties agreed otherwise in writing.           In March 2005, Wendling wrote a

memorandum to the Village of Silverton Council requesting a raise for Daudistel,

who he characterized as a “solid, dedicated employee who goes above and beyond the

call of duty.”

       {¶8}      In May 2005, Daudistel underwent surgery for the diagnosis of the

condition     of   Barrett’s   esophagus   with   extensive    high-grade    glandular

dysplasia/carcinoma in situ, a protected disability recognized under the Americans

with Disability Act and R.C. 4112.01. As a result, Daudistel was unable to work for

three months. When he did return to work, he was restricted to light duty work “as

tolerated,” based on his physician’s recommendation, as the disability continued to

limit his ability to work and his health was weakened by his medical condition.

       {¶9}      Daudistel alleged that upon returning to work, he was treated in a

hostile and discriminatory manner by Wendling, in concert with the John and Jane

Doe defendants, identified only as “employees and elected and appointed officials of

the [Village] of Silverton.” Daudistel alleged that these defendants had “maliciously”

acted to discredit him, to weaken or destroy his contractual rights and benefits by

persistently attempting to breach the terms of his employment contract and to



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                    OHIO FIRST DISTRICT COURT OF APPEALS



change his employment status to that of an “at-will employee,” and to ultimately

remove him from his civil service position without cause.

       {¶10} Specifically, Daudistel alleged that Wendling, in front of a civil service

member, had accused Daudistel of the loss of money from the Village’s police

property room, improperly terminating an employee, being responsible for a lawsuit

filed against the city, assigning personnel in an undercover sting operation that

triggered a lawsuit against the Village, and inconsistently promoting the personal

relationships between his employees.

       {¶11} Also, in March 2006, Wendling asked Daudistel to agree to a revised

employment agreement that stated that Daudistel would become an “at-will”

employee.    Daudistel refused to sign the agreement.       At about the same time,

Wendling presented an ordinance to the Village’s council that he had drafted, which

would have changed Daudistel’s employment agreement by making him an “at-will”

employee. The proposed ordinance indicated that Daudistel had “affirm[ed] and

acknowledge[d]” that he was an “at-will” employee.          Council did not pass the

ordinance.

       {¶12} Wendling presented a second ordinance to council in May 2006, after

Daudistel had made it known that he was seeking a physical disability retirement.

The proposed ordinance would have amended Daudistel’s existing employment

agreement with the Village by reducing vacation leave benefits and sick leave

payment benefits at the time of Daudistel’s expected disability retirement. This

ordinance, which council did not approve, also contained terms indicating that

Daudistel had agreed to the changed terms. After the two ordinances failed to pass,

Wendling sent Daudistel a letter stating that his contract would not renew after May

31, 2006, and asking Daudistel to agree to the change. Daudistel rejected Wendling’s



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                     OHIO FIRST DISTRICT COURT OF APPEALS



request that he sign the letter, and voiced concern that Wendling was motivated by

Daudistel’s poor health and medical disability. Daudistel then applied for a disability

retirement, and alleges that Wendling’s “hostil[ity]” towards him lessened until May

2007, when Wendling learned that Daudistel had withdrawn his application for a

disability retirement.

       {¶13} On October 23, 2008, Wendling “unexpectedly” served Daudistel with

notice of a disciplinary hearing, to be held on the following day, but no charges were

included in the notice. The following day, Wendling informed Daudistel that the

hearing had been rescheduled until October 30, 2008, and he “threw” a new notice

of disciplinary hearing on Daudistel’s desk. No charges were outlined in this notice

either, and no hearing was conducted on October 30.

       {¶14} Then, on October 31, 2008, Daudistel received notice that he had been

placed on administrative leave with pay until the pretermination hearing.          No

revised or additional charges were outlined in that notice, or in a subsequent notice

delivered in April 2009.

       {¶15} Although Daudistel had been advised that the pretermination hearing

would occur within two weeks of his placement on administrative leave, the Village

did not conduct any hearing until June 12, 2009. At that hearing, for the first time,

the Village announced that the charges against Daudistel were “neglect of duty,

incompetency, inefficiency, failure of good behavior, misfeasance, malfeasance, and

nonfeasance.” The Village also announced at this hearing a charge related to drug

paraphernalia from the property room that had allegedly been recovered in

Daudistel’s desk.

       {¶16} Following the June “pretermination hearing,” Daudistel was allegedly

provided insufficient time to submit additional evidence and written argument



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                       OHIO FIRST DISTRICT COURT OF APPEALS



before the final decision on the case terminating him, which Wendling issued on

September 11, 2009.         On September 9, when challenging the amount of time,

Daudistel’s attorney notified the Village that Daudistel would have to apply for

retirement before the decision “to protect his good name and reputation,” but also

that his retirement “would amount to a constructive discharge resulting from

[Daudistel’s] employment in a hostile work environment.”

         The Answer and Motion for Judgment on the Pleadings

        {¶17} The appellees answered Daudistel’s amended complaint and asserted,

in part, that his claims were barred by res judicata, as demonstrated by exhibits to

the answer, which included a transcript of the hearing before the Commission and

copies of the Commission’s decision, the magistrate’s decision, and the trial court’s

entry of judgment adopting the magistrate’s decision in the administrative appeal.1

The appellees then moved for judgment on the pleadings, arguing that res judicata

barred some of the claims because it was determined that Daudistel had voluntarily

resigned, was not constructively discharged, and was not denied due process. They

also contended Daudistel’s allegations were insufficient to state a claim for relief for

some of the causes of action, and that political subdivision immunity applied to

preclude the litigation of some of the claims.

        {¶18} The trial court granted the appellees’ motion without issuing a

decision discussing the basis for the ruling. The court then dismissed Daudistel’s

complaint without addressing the claims against the Doe defendants. Daudistel

appealed that decision, but this court dismissed the appeal because the one-year

period for service on the unidentified parties had not expired and the judgment in


1 Daudistel never challenged the propriety of the trial court’s consideration of these exhibits in
ruling on the motion for judgment and, instead, he cited the exhibits in his memorandum
opposing the appellees’ motion.


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                     OHIO FIRST DISTRICT COURT OF APPEALS



favor of the appellees did not contain Civ.R. 54(B) language. Daudistel v. Village of

Silverton, 1st Dist. Hamilton No. C-120611, 2013-Ohio-2103.           The trial court

subsequently issued a final order that entered judgment in favor of all the

defendants, and Daudistel again appealed.

                                      Analysis

       {¶19} In a single assignment of error, Daudistel argues that the trial court

erred by granting the appellees’ motion for judgment on the pleadings. Daudistel

posits two main issues for review. First, Daudistel contends that the trial court erred

by giving preclusive effect to the court of common pleas’ determinations that

exceeded the limited issues necessarily decided by the Commission when the

Commission dismissed the appeal of his termination. Second, he contends that

judgment on the pleadings was inappropriate because he pled valid and

substantiated claims.

                               Standard of Review

       {¶20} The standard for a motion for judgment on the pleadings pursuant to

Civ.R. 12(C) is similar to the standard for evaluating a Civ.R. 12(B)(6) motion to

dismiss, except that Civ.R. 12(C) permits the court to consider the complaint and

answer, where a Civ.R. 12(B)(6) motion limits the court’s consideration to the

complaint.   See State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565,

569, 664 N.E.2d 931 (1996). “Under Civ.R. 12(C), dismissal is appropriate where a

court (1) construes the material allegations in the complaint, with all reasonable

inferences to be draw therefrom, in favor of the nonmoving party as true, and (2)

finds beyond doubt that the plaintiff could prove no set of facts in support of his

claim that would entitle him to relief.” Id. at 570. Because a Civ.R. 12(C) motion




                                          8
                     OHIO FIRST DISTRICT COURT OF APPEALS



presents only questions of law, it may be granted only when no issues of material fact

exist and the movant is entitled to judgment as matter of law. Id.

       {¶21} We apply a de novo review to a trial court’s decision to grant judgment

on the pleadings.    Euvrard v. The Christ Hosp. and Health Alliance, 141 Ohio

App.3d 572, 575, 752 N.E.2d 326 (1st Dist.2001).

                            Disability Discrimination

       {¶22} Daudistel alleged that his cancer was a disability and that the appellees

discriminated against him in his employment because of his disability in violation of

R.C. 4112.02. To establish a prima facie case for disability discrimination, Daudistel

had to demonstrate as follows:      (1) he is disabled; (2) he suffered an adverse

employment decision, at least in part because of disability; and (3) that, despite his

disability, he could “ ‘ safely and substantially perform the essential functions of the

job in question.’ ” Goss v. Kmart Corp., 11th Dist. Trumbull No. 2006-T-0117, 2007-

Ohio-3200, ¶ 23, quoting Hood v. Diamond Prods., Inc., 74 Ohio St.3d 298, 658

N.E.2d 738 (1996), paragraph one of the syllabus.

       {¶23} The appellees’ motion for judgment focused on whether Daudistel had

suffered an adverse employment decision because of his disability. This court has

adopted federal law in defining an adverse employment action as a “materially

adverse change in the terms and conditions of employment.” Brown v. Dover Corp.,

1st Dist. Hamilton No. C-060123, 2007-Ohio-2128, ¶ 27, citing Kocsis v. Multi-Care

Mgt., Inc., 97 F.3d 876, 885 (6th Cir.1996).

       {¶24} The appellees argued that Daudistel could not demonstrate that he had

suffered an adverse employment decision because the trial court in the prior action

rejected Daudistel’s claim that he had been constructively discharged and found that

he had voluntarily retired/resigned from his position with the Village. Thus, they



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                      OHIO FIRST DISTRICT COURT OF APPEALS



argued that Daudistel was precluded from relitigating these issues under the

collateral estoppel prong of res judicata.

       {¶25} Ohio law regarding res judicata encompasses both “claim preclusion”

and “issue preclusion.”      See, e.g., State ex rel. Schachter v. Ohio Pub. Emp.

Retirement Bd., 121 Ohio St.3d 526, 2009-Ohio-1704, 905 N.E.2d 1210, ¶ 27.

“ ‘Claim preclusion prevents subsequent actions, by the same parties or their privies,

based upon any claim arising out of a transaction that was the subject matter of a

previous action.’ ” (Internal citation omitted.) Id.

       {¶26} Issue preclusion, also known as collateral estoppel, “precludes the

relitigation, in a second action, of an issue that had been actually and necessarily

litigated and determined in a prior action that was based on a different cause of

action.” (Emphasis added.) (Internal citations omitted.) Id. at ¶ 28.

       {¶27} “Where the judgment of a court is not dispositive on issues which a

party later seeks to litigate, res judicata is not applicable.” Ameigh v. Baycliffs Corp.,

81 Ohio St.3d 247, 250, 690 N.E.2d 872 (1998), citing State ex rel. Brookpark

Entertainment, Inc. v. Cuyahoga Cty. Bd. of Elections, 60 Ohio St.3d 44, 47, 573

N.E.2d 596 (1991). “This is true even if the prior court decision has discussed the

issues that are the subject of the current litigation.” Id.

       {¶28} Daudistel concedes that some preclusive effect may be given to the

prior action. But he contends that any preclusive effect must be limited to the

narrow procedural issue of whether he was entitled to a hearing upon his

termination, citing Walters v. City of Brecksville, 8th Dist. Cuyahoga No. 53660,

1988 Ohio App. LEXIS 1706, *3 (Apr. 21, 1988). We agree with Daudistel that the

prior action did not by necessity involve whether he was constructively discharged,




                                             10
                    OHIO FIRST DISTRICT COURT OF APPEALS



whether his retirement was voluntary in the context of a constructive-discharge

claim, or whether there were defects in his administrative process.

       {¶29} But the prior action did by necessity involve a resolution of whether

Daudistel had “elected” to retire, such that his retirement was equivalent to a

resignation. And the Commission found that Rule 14.01 applied, that Daudistel’s

termination had been converted to a resignation, and that it had to dismiss the

appeal.   Upon its review of the Commission’s decision in the R.C. 2506.01 appeal,

the trial court affirmed the Commission’s resolution of these issues. The trial court

also held that it had no jurisdiction to proceed with an appeal under R.C. 124.34,

because an appeal pursuant to that statute is limited to “matters concerning removal

or reduction in employment for disciplinary reasons.” Pitts v. Ohio Dept. of Transp.,

67 Ohio St.2d 378, 382, 423 N.E.2d 1105 (1981). The court concluded that there

could be no removal because Daudistel “chose to retire while his appeal was still

pending before the Commission.”

       {¶30} Notwithstanding our rejection of collateral estoppel under these

circumstances with respect to the constructive discharge and the voluntariness of the

retirement in the context of a constructive discharge, we agree with the appellees’

contention that they were entitled to judgment on the pleadings on this disability-

discrimination claim.

       {¶31} An employee can be either actually or constructively terminated. The

test for constructive discharge “is whether the employer’s actions made working

conditions so intolerable that a reasonable person under the circumstances would

have felt compelled to resign.” Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 664

N.E.2d 1272 (1996), paragraph four of the syllabus.




                                          11
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶32} The effect of Rule 14.01, as applied to Daudistel, and as he well knew,

was to convert Daudistel’s termination into a resignation and to protect his

retirement benefits. Daudistel elected to resign, even though he had the opportunity

to contest his firing, and, thus, he cannot now claim that the Village wrongfully

terminated him—actually or constructively.

       {¶33} Daudistel further alleges that he suffered adverse employment actions

when the appellees attempted to make him an at-will employee. But attempts to

change Daudistel’s employment contract to that of an at-will employee cannot serve

as an adverse employment action because the attempts were not successful,

according to the complaint, and thus no materially adverse change in the terms and

conditions of employment occurred. See Brown, 1st Dist. Hamilton No. C-060123,

2007-Ohio-2128. Thus, the appellees are entitled to judgment on the pleadings as to

Daudistel’s disability-discrimination claim.

                          Hostile Work Environment

       {¶34} Daudistel also alleges that he was subjected to a hostile work

environment based on his disability.       To prevail on this claim for disability

harassment, he must show (1) that the harassment was unwelcome, (2) that the

harassment was based on his disability, (3) that the harassing conduct was

sufficiently severe or pervasive to affect the “terms, conditions, or privileges of

employment, or any matter directly or indirectly related to employment,” and (4)

that either (a) the harassment was committed by a supervisor, or (b) the employer,

through its agents or supervisory personnel, knew or should have known of the

harassment and failed to take immediate and appropriate corrective action. Hampel

v. Food Ingredients Specialties, Inc., 89 Ohio St.3d 169, 729 N.E.2d 726 (2000),

paragraph two of the syllabus (sexual harassment); Corrado v. Warren-Trumbull



                                          12
                     OHIO FIRST DISTRICT COURT OF APPEALS



Cty. Pub. Library, 11th Dist. Trumbull No. 2005-T-0120, 2006-Ohio-4661, ¶ 52

(harassment based on disability); Hapner v. S. Community, Inc., 2d Dist.

Montgomery No. 21023, 2005-Ohio-6674, ¶ 13 (harassment based on disability).

       {¶35} A hostile work environment is “one that is permeated ‘with

discriminatory intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive

working environment.’ ” Brown, 1st Dist. Hamilton No. C-060123, 2007-Ohio-2128

at ¶ 38, quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126

L.Ed.2d 295 (1996). The conduct must be offensive both to a reasonable person and

to the actual victim. Id.; Hapner at ¶ 13.

       {¶36} “Simple teasing, offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in the ‘terms and

conditions of employment.’ ” Faragher v. Boca Raton, 524 U.S. 775, 788, 118 S.Ct.

2275, 141 L.Ed.2d 662 (1998); Rice v. Cuyahoga Cty. Dept. of Justice, 2005-Ohio-

5337, 970 N.E.2d 470, ¶ 32 (8th Dist.); Hapner at ¶ 14. The conduct must be

extreme to change the terms and conditions of employment. Chapa v. Genpak, LLC,

10th Dist. Franklin No. 12AP-466, 2014-Ohio-897, ¶ 35. Gatsios v. Timken Co., 5th

Dist. Stark No. 2011CA00185, 2012-Ohio-2875, citing Harris at 21-22.

       {¶37} The conduct alleged in Daudistel’s complaint did not, as a matter of

law, rise to the extreme level necessary to be so severe and pervasive as to constitute

a hostile work environment. See Brown at ¶ 38-46; Hapner, 2d Dist. Montgomery

No. 21023, 2005-Ohio-6674, at ¶ 13-27. In essence, he alleges that the appellees

tried to change the terms and conditions of his employment. But he acknowledges

that they failed to do so: council did not pass the ordinance about which he

complains, and he refused to agree to the changes in his employment contract. We



                                             13
                     OHIO FIRST DISTRICT COURT OF APPEALS



do not think that the unsuccessful attempt to change the terms and conditions of

employment through proper legal channels can amount to a hostile work

environment. Further, the majority of the actions about which he complains within

his claim for hostile work environment relate to his ultimate termination. But he

voluntarily converted the termination into the retirement. We do not think the

recitation of the procedural steps that the appellees took to terminate him prior to

his conversion of the termination into a voluntary retirement state a claim for a

hostile work environment.

       {¶38} Daudistel has failed to allege any change in the terms, conditions and

privileges of employment or in any other matter related to his employment. See

Hampel, 89 Ohio St.3d 169, 729 N.E.2d 726, at paragraph two of the syllabus. There

are simply no factual allegations in his complaint suggesting that his job changed as

a result of what he alleges to be harassment.

       {¶39} It is well established that a claim for a hostile work environment

requires harassment sufficiently severe and pervasive to alter the terms, conditions

and privileges of employment or any matter directly or indirectly related to

employment. Hampel, at paragraph two of the syllabus. Daudistel’s complaint fails

to allege “severe and pervasive” harassment. And it fails to allege any change or

alteration in the terms, conditions or privileges of his employment or in any matter

related to his employment. Even accepting everything in Daudistel’s complaint as

true and drawing all inferences in his favor, the complaint fails to state a claim for

employment discrimination of the hostile-work-environment variety. Consequently,

the trial court did not err in granting the appellees’ motion for judgment on the

pleading on Daudistel’s hostile-work-environment claim.

       Intentional and Negligent Infliction of Emotional Distress


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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶40} As to the intentional-infliction-of-emotional-distress claim, the Ohio

Supreme Court has stated that “[o]ne who by extreme and outrageous conduct

intentionally or recklessly causes serious emotional distress to another is subject to

liability for such emotional distress[.]” Yeager v. Local Union 20, 6 Ohio St.3d 369,

453 N.E.2d 666 (1983), syllabus.      To state a claim for intentional infliction of

emotional distress, the plaintiff must show that the defendant’s conduct was “so

outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

civilized community.” Id. at 375; Reamsnyder v. Jaskolski, 10 Ohio St.3d 150, 152-

153; 462 N.E.2d 392 (1984); Mann v. Cincinnati Enquirer, 1st Dist. Hamilton No. C-

090747, 2010-Ohio-3963, ¶ 25.

       {¶41} In this case, the conduct alleged in Daudistel’s complaint does not, as a

matter of law, rise to the extreme and outrageous level necessary for a prima facie

case of intentional infliction of emotional distress. See Mann at ¶ 25-26. Daudistel’s

claim for negligent infliction of emotional distress also fails. A plaintiff may not

recover under this claim absent proof that “the defendant’s negligence produced [an]

actual threat of physical harm to the plaintiff or any other person.” Heiner v.

Moretuzzo, 73 Ohio St.3d 80, 82, 652 N.E.2d 664 (1995), quoted in Strasel v. Seven

Hills Ob-Gyn Assocs., 170 Ohio App.3d 98, 2007-Ohio-171, 866 N.E.2d 48, ¶ 14 (1st

Dist.). Daudistel did not allege that the appellees’ actions placed him or anther

person in fear of physical danger; therefore, the trial court properly entered

judgment on the pleadings for the appellees on Daudistel’s negligent-infliction claim.

See Heiner; Strasel.

                                   Due Process




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       {¶42} Daudistel argues that the appellees, acting under the color of state law,

denied him due process of law when the Village terminated him without providing

him adequate notice of the charges against him. See 42 U.S.C. 1983. To succeed on a

claim for deprivation of due process under the Fourteenth Amendment, Daudistel

must show that a deprivation of life, liberty, or property occurred.        See Bd. of

Regents of State Colleges v. Roth, 408 U.S. 564, 569-570, 92 S.Ct. 2701, 33 L.Ed.2d

548 (1972).    Classified civil servants have property rights in their continued

employment, and these rights cannot be taken from them without due process of law.

Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494

(1985); Ohio Assn. of Pub. School Emp., AFSCME, AFL-CIO v. Lakewood City

School Dist. Bd. of Edn., 68 Ohio St.3d 175, 176, 624 N.E.2d 1043 (1994).

       {¶43} But because Daudistel’s termination was converted to a resignation

under Rule 14.01, Daudistel’s due-process claim necessarily fails. Under these

circumstances, we conclude that Daudistel cannot show that the appellees deprived

him of his property right in his continued employment, an essential element of the

claim. Therefore, the trial court properly determined that Daudistel can prove no set

of facts to support his due-process claim.

                                 Civil Conspiracy

       {¶44} Daudistel also alleges a claim for civil conspiracy. A civil conspiracy

claim in Ohio consists of “a malicious combination of two or more persons to injure

another in person or property, in a way not competent for one alone, resulting in

actual damages.” Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 419,

650 N.E.2d 863 (1995). A civil-conspiracy claim requires the existence of a separate

underlying unlawful act. Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475, 700

N.E.2d 859 (1998); Gosden v. Louis, 116 Ohio App.3d 195, 219, 687 N.E.2d 481 (9th



                                             16
                    OHIO FIRST DISTRICT COURT OF APPEALS



Dist.1996). Because Daudistel cannot succeed on any of his other causes of action,

his civil-conspiracy claim based on these causes of action fails to state a cause of

action. See Morrow v. Reminger & Reminger Co., LPA, 183 Ohio App.3d 40, 2009-

Ohio-2665, 915 N.E.2d 696, ¶ 40 (10th Dist.) (determining that where plaintiffs

failed to state causes of action for falsification and fraud, the plaintiffs’ civil-

conspiracy claim based on falsification and fraud likewise failed to state a cause of

action.)

       {¶45} This claim also fails because, as the appellees argue, Daudistel cannot

show a conspiracy. Generally, in the context of civil liability, where all defendants,

allegedly coconspirators, are members of the same collective entity, corporate or

municipal, there are not two separate “people” to form a conspiracy. See Bays v.

Canty, 330 Fed.Appx. 594, 594 (6th Cir.2009); Hull v. Cuyahoga Valley Joint

Vocational School Dist. Bd. of Edn., 926 F.2d 505, 509-510 (6th Cir.1991); Ohio

Vestibular & Balance Ctrs., Inc. v. Wheeler, 2013-Ohio-4417, 999 N.E.2d 241, ¶ 28-

30 (6th Dist.), citing Kerr v. Hurd, 694 F.Supp.2d 817, 834 (S.D. Ohio 2010)

(explaining that “[a] corporation cannot conspire with its own agents or employees.”)

The exception is if the employees or agents are acting outside the scope of their

employment or agency. See Bays; Bailey v. Priyanka Inc., 9th Dist. Summit No.

C.A. 20437, 2001 Ohio App. LEXIS 4558, *14-15 (Oct. 10, 2001); Scanlon v. Gordon

R. Stofer & Bro. Co., 8th Dist. Cuyahoga Nos. 55467 and 55472, 1989 Ohio App.

LEXIS 2528, *44 (June 22, 1989).

       {¶46} Here, Daudistel alleges that Wendling’s acts were “all in the course and

scope of his employment” as city manager for the Village. With respect to the John

and Jane Does, Daudistel alleges only that these defendants are “employees and

elected and appointed officials of * * * Silverton, whose actual identities and nature



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and extent of their participation in the events leading up to Plaintiff’s termination are

unknown at this time.” The complaint alleges that they were agents of the same

entity—the Village—and is so devoid of any other allegations with respect to these

defendants and any unlawful acts they allegedly committed that we cannot read the

complaint as sufficiently stating a claim for civil conspiracy. Accordingly, we hold

that the trial court did not err in granting judgment on the pleadings for the

appellees on this claim.

                           Political Subdivision Immunity

       {¶47} Because we have determined that none of Daudistel’s claims should

have survived the appellees’ motion for judgment on the pleadings, we do not

address Wendling’s argument that he is entitled to immunity from Daudistel’s claims

pursuant to R.C. Chapter 2744, the Political Subdivision Tort Liability Act.

                                     Conclusion

       {¶48} The assignment of error is overruled and the judgment of the trial

court is affirmed.

                                                                    Judgment affirmed.


DINKELACKER and DEWINE, JJ., concur.



Please note:

  The court has recorded its own entry on the date of the release of this opinion.




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