[Cite as Mosley v. Cuyahoga Cty. Bd. of Mental Retardation, 2011-Ohio-3072.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 96070




                                     PAUL MOSLEY
                                                          PLAINTIFF-APPELLANT

                                                    vs.

       CUYAHOGA COUNTY BOARD OF MENTAL
             RETARDATION, ET AL.
                                                          DEFENDANTS-APPELLEES




                                         JUDGMENT:
                                          AFFIRMED


                                 Civil Appeal from the
                        Cuyahoga County Court of Common Pleas
                                 Case No. CV-704155

        BEFORE:           Rocco, J., Sweeney, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                               June 23, 2011
                                    2


ATTORNEY FOR APPELLANT

Steven J. Moody
1816 Corning Avenue
Cleveland, Ohio 44109


ATTORNEY FOR APPELLEES

John D. Latchney
Tomino and Latchney
803 E. Washington Street
Suite 200
Medina, Ohio 44256




KENNETH A. ROCCO, J.:

     {¶ 1} Plaintiff-appellant Paul Mosley appeals from the trial court

orders that granted summary judgment to his employer, defendant-appellee

the Cuyahoga County Board of Mental Retardation1 (“the agency”) and two of

the agency’s managers, defendants-appellees John McLaughlin and Barry

Kuzmickas, and dismissed all of Mosley’s claims against them.


     1 This  is the designation Mosley provided in his complaint. The record
indicates the agency’s proper title is “the Cuyahoga County Board of Mental
Retardation and Developmental Disabilities.”
                                       3

      {¶ 2} Mosley presents five assignments of error.        He asserts: 1) the

trial court improperly utilized a “nunc pro tunc” order to reverse its previous

decision to deny appellees’ partial motion for summary judgment; 2) the trial

court improperly dismissed his “retaliation” claim; 3) the trial court

improperly dismissed his race and gender discrimination claims; 4) the trial

court improperly dismissed his breach of employment contract claim; and 5)

the trial court improperly dismissed his claims of employer intentional tort.

      {¶ 3} Upon a review of the record pursuant to the standards of Civ.R.

56(C) and (E), this court finds that none of Mosley’s assignments of error has

merit. Consequently, the trial court’s orders are affirmed.

      {¶ 4} The following facts of this case are undisputed.         The record

reflects the agency hired Mosley in August 1987. He worked as a “Support

Administrator” (“SA”), based at the office in Highland Heights, Ohio. His

position required him to travel to homes and schools to aid the agency’s

clients. Mosley worked for many years without incident.

      {¶ 5} The agency issued an “employee handbook” to its employees. 2

Under the heading “Driving Record Regulations,” the 2005 version of the

handbook stated in pertinent part as follows:


      2 The face page of the employee handbook indicates at least some of the
agency’s employees were a part of the Service Employees International Union
(“SEIU”), District 1199. Although the agency purported to attach to the motion for
                                      4

      {¶ 6} “These regulations apply to employees in positions which require

driving on-the-job * * * .”

      {¶ 7} “ * * * .

      {¶ 8} “Staff members are required to report driving charges for major

violations, such as DUI/DWIs to the Human Resources department.”

      {¶ 9} “ * * * .

      {¶ 10} “If your * * * driving privileges are suspended, you will be subject

to discipline. Prior to the pre-disciplinary hearing, you may be assigned for

up to thirty days in a position without driving responsibilities. Depending on

the facts, you may be suspended or demoted for this violation. * * * .

      {¶ 11} “If reasonable arrangements can be made for the staff member to

perform effectively, a staff member will retain his/her position while

on-the-job driving privileges are suspended.           However, if on-the-job

privileges are suspended, the CCBMR/DD may transfer the staff member to

any non-driving position for which the staff member is qualified. The staff

member will receive the pay rate for the position to which he/she is

transferred. * * * .


partial summary judgment a copy of the collective bargaining agreement (“CBA”)
under which the employer and employees functioned, that document does not
appear in the record. Mosley admitted in his deposition testimony, however, that
his position as an agency SA made him a union employee, and that he at one time
acted as a union representative for the agency’s employees.
                                        5

      {¶ 12} “Another option for staff members will be to obtain business use

insurance with the CCBMR/DD named as the ‘other insured’ and with a

coverage limit of $500,000. * * * This option will be available only to staff

members who have

      {¶ 13} * * 2 points or less [on their driving record]. * * * .”

      {¶ 14} Under the heading “Employee Rights,” the handbook stated with

respect to disciplinary situations that the employee had a “right” to a

predisciplinary conference “as soon as possible after the incident in question.”

 The agency would send a written notice of the conference and its purpose,

the employee could have representation from the labor union, and the agency

would send a written report of its decision. If the employee wished to appeal

the decision, the employee was directed to review “Article 10 of the SEIU

District 1199 - CCBMR/DD Labor Agreement.”

      {¶ 15} Mosley received a citation for DUI on March 14, 2006.           He

reported the incident to his union representative and to Alan Wilkes, the

agency’s “regional manager” for SAs.          Mosley did not make a report to

McLaughlin, who was the Director of the agency’s HR department.

      {¶ 16} On May 3, 2006, the day that Mosley was convicted of the offense,

he reported the incident to McLaughlin.          That same day, the judge who

presided over Mosley’s case granted occupational driving privileges to him.
                                        6

Thus, for nearly two months, Mosley had been performing some of his job

duties for appellee while driving with a suspended license.

        {¶ 17} When apprised of Mosley’s situation, McLaughlin requested

Roslyn English, the agency’s Employment Manager, to find a position for

Mosley that did not require him to drive. English knew of an opening, viz.,

the agency was seeking a candidate for               the position of “Eligibility

Specialist.” However, this was both a non-union position and, for Mosley,

would constitute a demotion.

        {¶ 18} McLaughlin notified Mosley of the opening and of his decision to

pursue a disciplinary action in order to place Mosley into the lower position.

Mosley filed no grievance with the union over this development. Rather, his

reaction was to request McLaughlin to treat the demotion as voluntary on his

part.    This would prevent any disciplinary action from appearing in his

employment record. McLaughlin agreed.

        {¶ 19} Mosley’s transfer officially took place on June 5, 2006.    He signed

a document dated June 13, 2006 that memorialized his “official notification of

[his] voluntary demotion to the temporary position of Eligibility Specialist” at

the agency.

        {¶ 20} Mosley apparently was unhappy in this position.            The record

reflects that      problems with his job performance began to surface.
                                        7

Beginning in December, 2006, these problems were memorialized in agency

emails. Inter-agency communications between Mosley and his supervisors

indicate Mosley sometimes left work early without making arrangements

with co-workers to provide “intake coverage” for new clients, failed to notify

co-workers of his planned absences, failed to return important telephone

calls, and fell behind in his duties.

      {¶ 21} The record also reflects Mosley’s supervisors attempted to resolve

these problems.     On January 31, 2007, Mosley’s immediate supervisor,

Timothy Lewicki, met with him to discuss his concerns, propose some

solutions, and tell him Lewicki wanted to “meet with him weekly to see how

we could get him caught up.”

      {¶ 22} Nevertheless, Mosley’s problems continued.      In February 2007,

Mosley had a dispute with a co-worker.          The agency’s Labor Relations

Manager, Barry Kuzmickas, became involved. At that time, when Mosley

was participating in company conflict resolution meetings, he became

convinced that his transfer had been, despite the language of the June 13,

2006 document, an unwarranted disciplinary action taken against him.

      {¶ 23} The record reflects Mosley originally filed this action in August

2007 but the case was dismissed without prejudice in September 2009. The

following day, Mosley re-filed his action, which is the instant case.
                                       8

      {¶ 24} Mosley alleged in his complaint that his demotion was unlawful

and discriminatory in nature.      He set forth ten causes of action against

appellees, as follows: 1) race discrimination; 2) sex discrimination; 3) breach

of employment contract; 4) civil conspiracy; 5) violation of due process under

Ohio law; 6) failure to train supervisors; 7) age discrimination; 8) retaliation

after demotion; 9) “outrageous” conduct; and 10) violation of agency due

process.

      {¶ 25} After appellees filed their joint answer to the complaint, they filed

a motion for summary judgment as to six of Mosley’s claims.            Appellees

argued that Mosley could not sustain any of his causes of action for breach of

employment contract, civil conspiracy, due process violations, retaliation, and

“outrageous” conduct. Appellees supported their argument with a copy of the

employee handbook, affidavits from McLaughlin, Kuzmickas, and English,

and a copy of Mosley’s deposition testimony with its attached exhibits.

      {¶ 26} Mosley filed a brief in opposition to the motion.        He argued

summary judgment on those claims was inappropriate and, as support for his

argument, he attached his affidavit to his brief.

      {¶ 27} Mosley’s affidavit, however, contained contradictory assertions.

For example, although he averred he was demoted “as soon as he got his

DUI,” he also averred he “never received any discipline” until he “filed a
                                        9

lawsuit and a charge with the EEOC.” Mosley also provided no dates for

these occurrences, but, as previously stated, the record reflects he originally

filed this action in August 2007.

      {¶ 28} Appellees filed a reply brief, but did not supply additional

evidence. On August 27, 2010, the trial court issued a journal entry denying

appellees’    partial   motion   for   summary     judgment   without   opinion.

Previously, the court had scheduled the case for trial to be held on September

22, 2010.

      {¶ 29} On September 15, 2010, appellees filed two separate motions in

limine.     Appellees sought in the first to prevent Mosley from introducing

evidence with respect to Counts 3, 5, 8, and 10, which appellees referred to

generally as the “due process violation” claims.

      {¶ 30} Appellees stated in this motion that Mosley had filed an action in

the federal district court that the court subsequently had dismissed with

prejudice. Appellees argued that, therefore, these claims were barred by the

doctrine of res judicata. Alternatively, appellees pointed out that the record

demonstrated Mosley failed to avail himself of his rights under the CBA.

They argued that he had thus waived these claims.

      {¶ 31} In their second motion, appellees sought to prevent Mosley from

introducing evidence of events that occurred at the workplace subsequent to
                                     10

the date Mosley filed his complaint in the instant case. Appellees argued

such evidence would be irrelevant and potentially prejudicial.

      {¶ 32} On September 16, 2010, the trial court issued an order that

granted summary judgment to appellees on most of Mosley’s claims. As to

Counts 3, 5, 8, and 10, the trial court granted summary judgment to appellees

without opinion. The trial court further “dismissed” Count 7 “pursuant to

R.C. 4112.02(N),” and “dismissed” Counts 1 and 2 “because of a failure of

direct evidence of discriminatory intent.”     The court’s order stated that

Counts 4 and 9 were “denied,” on the basis “of immunity from intentional

torts.”   Appellees apparently took this to mean that Counts 4, 6, and 9

remained for the September 22, 2010 trial.

      {¶ 33} Two days before the scheduled trial date, appellant filed a request

with the court for leave to amend his complaint.          One day before the

scheduled trial date, appellees filed a notice of appeal in this court from the

September 16, 2010 order pursuant to R.C. 2744.02(C).         The appeal was

assigned App. No. 95745.

      {¶ 34} While App. No. 95745 was pending, the trial court issued an order

“nunc pro tunc” with respect to the September 16, 2010 order. This indicated

that Counts 4 and 9 were actually “dismissed,” rather than “denied.”
                                        11

Subsequently, this court granted the agency’s motion to dismiss App. No.

95745.

        {¶ 35} When the case was returned to the trial court, Mosley filed a

request to “strike” appellees’ “motion for directed verdict.” He apparently

believed appellees had filed such a motion during the pendency of App. No.

95745. In response, appellees filed an opposition brief noting that they had

not done so, but also noting that only Count 6 remained for disposition.

Appellees argued they were entitled to summary judgment on this claim, as

well.

        {¶ 36} On November 8, 2010, the trial court issued the final order in this

case. The court granted summary judgment to appellees on Count 6. The

trial court indicated this entry was its second order “nunc pro tunc” to the

September 16, 2010 order.

        {¶ 37} Mosley filed a timely notice of appeal from the trial court’s orders.

 He presents five assignments of error.

        {¶ 38} “I.   The trial court improperly entered nun[c] pro tunc

orders granting Appellees’ motion for summary judgment to correct

its prior judgment entry actually denying the same Appellees’ motion

for summary judgment, as the purpose of a nun[c] pro tunc order is

restricted to placing upon the record evidence of judicial action
                                   12

which was actually taken, i.e., supplying omissions in the judgment

entry or correcting clerical errors — not what the court might or

should have decided or intended to decide — because a mere

erroneous judgment cannot be corrected by nun[c] pro tunc.

     {¶ 39} “II.    Even if the nun[c] pro tunc orders were proper —

and they are not — the trial court improperly granted Appellees’

motion for summary judgment on Appellant’s retaliation claims [sic]

where it is clear that Appellant was disciplined, terminated, and

demoted because of the filing of this lawsuit.

     {¶ 40} “III.   Even if the nun[c] pro tunc orders were proper —

and they were not proper — the trial court improperly granted

Appellees’ motion for summary judgment on Appellant’s race and

gender claims by dismissing Counts I and II ‘because of a failure of

direct evidence’ where the standard of review is either direct or

indirect evidence and where Appellant has shown both direct

evidence of intent to discriminate on the basis of race and gender as

well as indirect evidence of intent to discriminate.

     {¶ 41} “IV.    Even if the nun[c] pro tunc orders were proper —

and they were not proper — the trial court’s grant of summary

judgment on Counts III, V, VIII and X relating to ‘due process’ does
                                    13

not take into consideration the ‘breach of contract’ claim or the

retaliation claims [sic], which stand on their own in Counts III, VIII,

and therefore remain.

      {¶ 42} “V.    The trial court erred by ruling that public employees

are immune from intentional torts and therefore all claims which

arise from the employer-employee relationship should not have been

dismissed on summary judgment including Appellant’s emotional

distress claims [sic].”

      {¶ 43} Mosley argues in his first assignment of error that the trial

court’s use of “nunc pro tunc” to grant summary judgment to appellees on all

of his claims was improper. Although his argument is correct, it does not

avail him in this case, since the trial court acted within its authority for a

different reason.

      {¶ 44} The trial court’s use of a nunc pro tunc entry is restricted to

placing upon the record evidence of judicial action that has been actually

taken; thus, it can be exercised only to supply omissions in the exercise of

merely clerical functions. Jacks v. Adamson (1897), 56 Ohio St. 397, 402, 47

N.E. 48. The function of nunc pro tunc is not to change, modify, or correct

erroneous judgments, but, rather, to have the record speak the truth. Ruby

v. Wolf (1931), 39 Ohio App. 144,177 N.E. 240; Dentsply Internatl., Inc. v.
                                      14

Kostas (1985), 26 Ohio App.3d 116, 498 N.E.2d 1079.            A court may not,

therefore, by way of a nunc pro tunc entry, enter of record that which it

intended but, in fact, was not made.         Pepera v. Pepera (Mar. 26, 1987),

Cuyahoga App. Nos. 51989 and 52024, quoting Myers v. Shaker Hts. (June 7,

1990), Cuyahoga App. Nos. 57005 and 58056.

     {¶ 45} In this case, the trial court meant in its September 16, 2010 order

to “dismiss” some of Mosley’s claims, but used the word “denied” instead.

These two legal concepts are not interchangeable, so the trial court acted

inappropriately on September 23, 2010 when, despite appellees’ appeal of its

original decision, the court purported to use nunc pro tunc to place into the

record its actual intent. See, e.g., Doe v. Catholic Diocese of Cleveland, 158

Ohio App.3d 49, 2004-Ohio-3470, 813 N.E.2d 977, ¶15; cf., Garofolo. The

trial court’s use of the phrase “nunc pro tunc” in its November 8, 2010 entry

similarly was inappropriate.

     {¶ 46} Nevertheless, the trial court’s September 16, 2010 ruling denied

partial summary judgment to appellees. Since all the claims thus remained

pending,   the   trial   court   retained    jurisdiction   over   those   claims.

Consequently, the court could properly reconsider its interlocutory ruling and

enter any lawful order as to those claims.          Garofolo v. Fairview Park,

Cuyahoga App. Nos. 92283 and 95021, 2009-Ohio-6456, ¶14.               The same
                                       15

analysis applies to the trial court’s final judgment entry of November 8, 2010,

since the trial court had not previously disposed of Count 6, the last

remaining claim.

      {¶ 47} Accordingly,   Mosley’s   argument    is   correct,   but   his   first

assignment of error is nonetheless overruled.

      {¶ 48} In his second, third, fourth, and fifth assignments of error, Mosley

argues summary judgment for appellees on his claims was unwarranted. He

contends that since the trial court’s analysis was flawed, its result should be

reversed.

      {¶ 49} However, appellate review of summary judgments is de novo.

Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241;

Zemcik v. La Pine Truck Sales & Equipment (1998), 124 Ohio App.3d 581,

585, 706 N.E.2d 860. The appropriate test is as follows:

      {¶ 50} “Pursuant to Civ.R. 56, summary judgment is appropriate when

(1) there is no genuine issue of material fact, (2) the moving party is entitled

to judgment as a matter of law, and (3) reasonable minds can come to but one

conclusion and that conclusion is adverse to the nonmoving party, said party

being entitled to have the evidence construed most strongly in his favor.”

Zivich v. Mentor Soccer Club (1998), 82 Ohio St.3d 367, 369-70, 696 N.E.2d
                                     16

201.    See, also, Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679,

653 N.E.2d 1196, paragraph three of the syllabus.

       {¶ 51} The parties moving for summary judgment bear the initial

burden of showing that there is no genuine issue of material fact and that

they are entitled to judgment as a matter of law. Dresher v. Burt (1996), 75

Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274. Once the moving parties

satisfy that burden, the nonmoving party “may not rest upon the mere

allegations or denials of the party’s pleadings, but the party’s response, by

affidavit or as otherwise provided in this rule, must set forth specific facts

showing that there is a genuine issue for trial.”    Civ.R. 56(E) (Emphasis

added.)

       {¶ 52} Since review of summary judgment is de novo, the reviewing

court may affirm the trial court’s decision for different reasons. Cordray v.

Internatl. Prep. School, 128 Ohio St.3d 50, 2010-Ohio-6136, 941 N.E.2d 1170,

¶31; Anderson v. Snider Cannata Co., Cuyahoga App. No. 91801,

2009-Ohio-4363, ¶31.

       {¶ 53} Mosley argues that summary judgment on his retaliation claim

was unwarranted, because “it is clear [he] was disciplined, terminated, and

demoted because of the filing of this lawsuit.” This argument is rejected.
                                      17

      {¶ 54} Mosley never amended his complaint to raise any issue regarding

 “retaliation” taken against him based upon this lawsuit.            Rather, he

asserted in Count 8 that, “[a]fter [he] complained to [appellees] about the loss

of his rights to due process regarding his demotion,” appellees “issu[ed]

discipline, chang[ed] his office assignments, workspace, and parking and * * *

other conditions of employment with no justifiable business reason.”

      {¶ 55} A party cannot raise any new issues or legal theories for the first

time on appeal.     Dolan v. Dolan, Trumbull App. Nos. 2000-T-0154 and

2001-T-0003, 2002-Ohio-2440, ¶7, citing Stores Realty Co. v. Cleveland (1975),

41 Ohio St.2d 41, 322 N.E.2d 629.       Reviewing courts are not required to

consider claims the plaintiff failed to raise in the trial court.    Thomas v.

Univ. Hosps. of Cleveland, Cuyahoga App. No. 90550, 2008-Ohio-6471, ¶37.

      {¶ 56} Since Mosley’s retaliation claim related only to his protests to his

superiors at work over being demoted in March 2007 “without due process,”

not to his filing of this lawsuit, he is precluded from raising this issue on

appeal. Accordingly, his second assignment of error also is overruled.

      {¶ 57} Mosley also argues that summary judgment for appellees on his

claims of racial and gender discrimination was inappropriate, because the

trial court indicated only “direct” evidence proved the elements of these
                                        18

claims.   However, even construing all of the evidence in the record most

strongly in his favor, Mosley could not establish these claims.

       {¶ 58} R.C. 4112.02(A) states:

       {¶ 59} “It shall be an unlawful discriminatory practice:

       {¶ 60} “(A) For any employer, because of the race, color, religion, sex,

national origin, handicap, age, or ancestry of any person, to discharge without

just cause, to refuse to hire, or otherwise to discriminate against that person

with respect to hire, tenure, terms, conditions, or privileges of employment, or

any matter directly or indirectly related to employment.”

       {¶ 61} To prevail in an employment discrimination case, a plaintiff must

prove discriminatory intent. Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578,

1996-Ohio-265, 664 N.E.2d 1272. A litigant may use either the direct or the

indirect method of proof.     Smith v. Greater Cleve. Regional Transit Auth.

(May 24, 2001), Cuyahoga App. No. 78274, citing                   Byrnes v. LCI

Communication Holdings Co., 77 Ohio St.3d 125, 1996-Ohio-307, 672 N.E.2d

145.

       {¶ 62} With respect to the indirect method of proof, the Ohio Supreme

Court has adopted the analytical framework in cases involving claims of

racial or gender discrimination that was established by the United States

Supreme Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93
                                        19

S.Ct. 1817, 36 L.Ed.2d 668. Blake v. Beachwood City Schools Bd. of Edn.,

Cuyahoga App. No. 95295, 2011-Ohio-1099, ¶18.

      {¶ 63} Under that framework, a plaintiff-employee establishes a prima

facie case of discrimination by producing evidence of each of the following

elements: 1) he was a member of the statutorily protected class; 2) he suffered

an adverse employment action; 3) he was qualified for the position; and, 4) a

comparable, non-protected person was treated more favorably.          Brewer v.

Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 701 N.E.2d 1023, citing

McDonnell Douglas.

      {¶ 64} Only after the plaintiff-employee establishes a prima facie case,

does the burden shift to the defendant-employer to overcome the presumption

inherent    in    the   prima   facie   case   by   propounding   a   legitimate,

nondiscriminatory reason for adverse actions taken against the employee.

Then if the employer meets this test, the plaintiff must show that the

rationale set forth by the employer was only a pretext for unlawful

discrimination.

      {¶ 65} In this case, Mosley could not establish even the first prong of a

claim of    gender discrimination.      He supplied nothing to the record that

would support a conclusion that the agency treated women more favorably

than men.
                                     20

     {¶ 66} Moreover, other than his self-serving affidavit, in which he

merely repeated the allegations of his complaint, nothing in the record

supports a conclusion that he was qualified for an SA position after his

driver’s license suspension. Lindsay v. Children’s Hosp. Med. Ctr. of Akron,

Summit App. No. 24114, 2009-Ohio-1216. Mosley admitted in his deposition

testimony that as an SA, driving was an important aspect of the job.

     {¶ 67} Furthermore, Mosley failed to show that he received disparate

treatment    in   being   demoted.     Appellees   submitted   evidence   that

demonstrated that each of the other employees, of either gender and any race,

who could not perform his or her job because of a driver’s license suspension,

was required to suffer some consequence comparable to Mosley’s demotion.

Blake.

     {¶ 68} Based upon the evidence submitted, the trial court properly

granted summary judgment to appellees on Mosley’s claims of gender and

racial discrimination.    Mosley’s third assignment of error, accordingly, is

overruled.

     {¶ 69} Mosley next argues that the trial court erred in granting

summary judgment to appellees on Counts 3 and 8 of his complaint, because

his claims of breach of employment contract and retaliation were independent
                                         21

of his claims that he did not receive “due process.” 3       His argument lacks

merit.

      {¶ 70} The employee handbook issued to Mosley clearly states that it “is

not a contract either express or implied.” The agency further “reserve[d] the

right to change any provision without consultation.”

      {¶ 71} In addition, the evidence clearly demonstrated that, upon being

informed that the agency planned to take disciplinary action against him for

his failure to report his driver’s license suspension, Mosley requested the

agency treat it as a voluntary action on his part. The record fails to support

a conclusion that the demotion constituted anything but an accommodation

for his DUI conviction that was intended to be in both parties’ best interest.

      {¶ 72} Therefore, summary judgment on Mosley’s claims of breach of

contract and retaliation also was appropriate. Mosley’s fourth assignment of

error, accordingly, also is overruled.

      {¶ 73} In his fifth assignment of error, Mosley asserts the trial court

incorrectly held that appellees enjoyed sovereign immunity with respect to

Counts 4 and 9 of his complaint. He cites R.C. 2744.09(B) in support of his

assertion.


      3Mosley  thus appears to concede summary judgment in appellees’ favor was
appropriate on his violations of due process claims as set forth in Counts 5 and 10.
                                      22

      {¶ 74} In Sampson v. Cuy. Metro. Housing Auth., 188 Ohio App.3d 250,

2010-Ohio-3415, 935 N.E.2d 98, ¶24, in a divided full-court opinion en banc,

this court held that R.C. 2744.09(B) does not afford political subdivisions

immunity from intentional torts. Nevertheless, the evidence in the record

must support a conclusion that the plaintiff-employee established the

elements of his claims in order to withstand summary judgment. Mosley

presented the claims of both conspiracy and “outrageous conduct,” i.e.,

intentional infliction of emotional distress.

      {¶ 75} In order to establish a claim of conspiracy, the plaintiff must

submit evidence to demonstrate there existed “a malicious combination of two

or more persons” who had the intent to injure him “in person or property, in a

way not competent for one alone,” and that resulted in actual damages to

him. Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415,

1995-Ohio-61, 650 N.E.2d 863, citing LeFort v. Century 21-Maitland Realty

Co. (1987), 32 Ohio St.3d 121, 126, 512 N.E.2d 640 and Minarik v. Nagy

(1963), 8 Ohio App.2d 194, 196, 193 N.E.2d 280.

      {¶ 76} Mosley presented no evidence to demonstrate his demotion

resulted from either a “malicious conspiracy” or an underlying “unlawful act”

by appellees. Wilson v. Harvey, 164 Ohio App.3d 278, 2005-Ohio-5722, 842

N.E.2d 83; Burns v. Rice, 157 Ohio App.3d 620, 2004-Ohio-3228, 813 N.E.2d
                                      23

25. His demotion, rather, resulted from his own conduct in driving in an

intoxicated state.   Simply put, when Mosley received a citation for this

offense, he became ineligible to continue in his position as an SA. Appellees

acted within their authority when they learned of his conviction to transfer

him to a non-driving position.     Finally, in asking for the transfer to be

deemed a voluntary demotion, Mosley accepted their action.

      {¶ 77} Similarly, the record does not support a conclusion Mosley

demonstrated the elements of his claim of intentional infliction of emotional

distress.   A claim for intentional infliction of emotional distress requires

proof of all of the following elements: 1) the actor either intended to cause

emotional distress or knew or should have known that actions taken would

result in serious emotional distress to the plaintiff; 2) the actor’s conduct was

so extreme and outrageous as to go beyond all possible bounds of decency and

was such that it can be considered as utterly intolerable in a civilized

community; 3) the actor’s actions were the proximate cause of the plaintiff’s

psychic injury; and, 4) the mental anguish suffered by the plaintiff is serious

and of a nature that no reasonable person could be expected to endure it.

Ashcroft v. Mt. Sinai Med. Ctr. (1990), 68 Ohio App.3d 359, 588 N.E.2d 280.

Serious emotional distress requires an emotional injury that is both severe
                                      24

and debilitating. Paugh v. Hanks (1983), 6 Ohio St.3d 72, 6 OBR 114, 451

N.E.2d 759.

      {¶ 78} The evidence in the record demonstrates Mosley’s problems on

the job came from his own actions. After receiving his citation, he failed to

report it to the HR department; only upon his conviction for DUI did he

inform McLaughlin. At that point, McLaughlin’s agency position required

him to take steps to ensure Mosley was no longer driving agency vehicles.

      {¶ 79} Mosley’s subsequent failure to adjust to his new role as an

Eligibility Specialist led to conflict with one of his co-workers.          The

inter-agency communications show Kuzmickas sought only to resolve the

situation in the most sensible manner possible. Thus, the record contains a

complete absence of “extreme and outrageous” conduct by appellees. Mowery

v. Columbus, Franklin App. No. 05AP-266, 2006-Ohio-1153.

      {¶ 80} Consequently, summary judgment on Mosley’s claims of civil

conspiracy and “outrageous conduct” also was warranted.          Mosley’s fifth

assignment of error, accordingly, also is overruled.

      {¶ 81} The trial court’s orders are affirmed.

      It is ordered that appellees recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
                                    25

     It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



___________________________________
KENNETH A. ROCCO, JUDGE

JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
