[Cite as Spitulski v. Toledo City School Dist. Bd. of Edn., 2017-Ohio-2692.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


Ronald P. Spitulski                                          Court of Appeals No. L-16-1225

        Appellee                                             Trial Court No. CI0201501111

v.

Board of Education of the Toledo
City School District and Heather
Baker and James Gault                                        DECISION AND JUDGMENT

        Appellants                                           Decided: May 5, 2017

                                                   *****

        Dennis D. Grant and Jolene S. Griffith, for appellee.

        Roman Arce and Shawn A. Nelson, for appellants.

                                                   *****

        JENSEN, P.J.

        {¶ 1} In this accelerated appeal, defendants-appellants, James Gault and Heather

Baker, appeal the October 4, 2016 judgment of the Lucas County Court of Common

Pleas, which rejected their assertion of immunity under R.C. 2744.01 et seq. For the

reasons that follow, we affirm the trial court’s judgment, in part, and reverse, in part.
                                     I. Background

       {¶ 2} Sixty-seven-year-old Ronald Spitulski was employed by the Board of

Education (“the Board”) of the Toledo City School District (“the District”) for nearly 25

years, most recently as a supervisor of the pupil personnel center. He was responsible for

conducting suspension appeal and expulsion hearings. He reported to Heather Baker, the

director of pupil placement and child adjustment services, and Baker reported to James

Gault, then the chief academic officer.

                  A. Issues arise with Spitulski’s work performance.

       {¶ 3} Between November of 2012, and May of 2013, Baker received complaints

that Spitulski had acted unprofessionally in his treatment of a non-attorney “parent

advocate,” several parents, and a character witness. In addition to this, on May 8, 2013,

Spitulski admitted to Baker that he lost almost a year’s worth of digitally-recorded

hearings that he conducted during the 2012-2013 school year.

                     B. The CBA outlines the disciplinary process.

       {¶ 4} Spitulski was an administrative employee of the Board, and as such, was a

member of the Toledo Association of Administrative Personnel (“TAAP”). TAAP and

the Board are parties to a collective bargaining agreement (“CBA”). The CBA provides

procedures for addressing disciplinary concerns. Those procedures call for progressive

discipline where appropriate, and they set forth a three-step disciplinary process: (1) an

informal level, (2) a continuing disciplinary investigation (“CDI”), and (3) a CDI report.

       {¶ 5} Under step one, an administrator who wishes to informally discuss a matter

which may lead to a CDI must consult with her supervisor and notify the employee and

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TAAP in writing on a prescribed form known as “a buff sheet.” The buff sheet must

describe (1) the conduct in question, (2) the date, time, and place of the meeting

requested, and (3) the right of the employee to have a TAAP representative present.

Under the CBA, every effort must be made to resolve matters at the informal level. If the

matter is resolved, a record of the meeting and the prescribed resolution must be placed in

the employee’s personnel file.

       {¶ 6} If the matter is not resolved at step one, or if it is a “serious matter,” step two

provides for a CDI, also referred to as “a hearing on the record.” The supervising

administrator or TAAP may submit a written request to the personnel office for a CDI

within 10 days from knowledge of the serious matter, or within five working days from

the date of the informal meeting. A TAAP representative shall be permitted to be present

for a CDI.

       {¶ 7} Finally, under step three, a CDI report is generated. A designated human

resources representative may hear testimony, examine witnesses, and review all relevant

material pertaining to the CDI. He or she must then issue a report to the superintendent

(or his designee), who must render a decision or recommend action to the Board. A copy

of the superintendent or Board’s decision must be sent to all parties concerned and placed

in the employee’s file. The employee may submit a written response which shall be

attached to the decision. The employee or TAAP may then appeal from the decision. If

the decision is to terminate the employee’s contract, such termination must comply with

Article VII, section A of the CBA. This provision of the CBA requires compliance with



3.
the Ohio Revised Code, including R.C. 3319.16, relating to the termination of a contract

by a board of education.

       {¶ 8} The CBA makes clear that an employee whose conduct is the subject of

investigation is entitled to (1) timely and adequate notice of the conduct complained of on

a prescribed form, (2) reasonable time to prepare a response, (3) representation by the

TAAP; and (4) other reasonable procedures affording due process. If an investigation is

not performed in accordance with the procedures set forth in the CBA, it cannot be

considered part of the employee’s personnel file, and neither the fact of the investigation

nor statements made during the investigation may be used in any subsequent Board

proceeding. The CBA also specifies that while progressive discipline must be followed

where appropriate—providing written warnings and suspensions in lieu of termination—

a written warning is not always required and immediate termination may be appropriate

in cases of serious misconduct.

                      C. Baker initiates the disciplinary process.

       {¶ 9} On May 23, 2013, Baker emailed Gault requesting a hearing on the record

for Spitulski. She cited the following reasons for requesting the hearing: (1) failure to

perform job duties, (2) failure to maintain professional relationships and behavior with

parents and students, and (3) insubordination. On May 31, 2013, Gault contacted the

District’s chief human resources officer to request a hearing. He cited the following

reasons for his request: (1) violation of licensure code of professional conduct for Ohio

educators, (2) violation of board policy section G: Personnel; Title; Staff-Student



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Relations, (3) failure to perform job duties, and (4) insubordination. He further

elaborated as to the conduct giving rise to his request as follows:

              Used inappropriate language during a suspension hearing for a

       student.

              Acted in a very unprofessional way towards parents in hearings and

       while scheduling hearings. Several parents have refused to allow him to

       hear their cases because they felt he was rude, unprofessional, and unfair.

       These cases had to be heard by an alternate hearing officer.

              He has failed to maintain accurate hearing records or hearing

       dispositions. Parent and school personnel have verified that one particular

       disposition was incorrect and was not what was presented in the hearing.

       When questioned about it, he refused to adjust it, stating it was correct.

              Upon request, Ron was unable to supply any audio hearing tapes

       from any hearings held in his office this school year up until the month of

       April. He states he is unsure of what happened to them. This is in violation

       of Ohio Revised Code 9.69 [sic].

       {¶ 10} A hearing on the record took place on August 19, 2013. Gault presented

the case to the District’s hearing officer, Annmarie Heldt, and Baker and Spitulski

testified. On September 9, 2013, Heldt issued a written recommendation to the Board,

recommending that Spitulski be terminated. The District’s chief human resource officer,

Cheryl Spieldenner, recommended that Heldt’s recommendation be upheld.



5.
                   D. The Board terminates Spitulski’s employment.

       {¶ 11} On October 4, 2013, the District’s treasurer provided written notice under

R.C. 3319.16 of its intent to terminate Spitulski’s employment. Spitulski submitted a

written request for arbitration to be conducted by an independent referee, and the Board

invoked the hearing procedures provided in R.C. 3319.16. The Ohio Department of

Education appointed a neutral referee, attorney James Gucker. On May 5 and 6, 2014,

Gucker considered evidence and heard testimony from a number of witnesses. On

August 14, 2014, he issued a recommendation to the Board concluding that “good and

just cause” did not exist to terminate Spitulski’s employment agreement.

Notwithstanding the referee’s recommendation, the Board passed a resolution on

December 16, 2014, terminating Spitulski’s employment contract. The contract

otherwise would have expired on July 31, 2016.

                               E. Spitulski seeks recourse.

       {¶ 12} Spitulski dually filed a charge of discrimination with the Ohio Civil Rights

Commission (“OCRC”) and the Equal Employment Opportunity Commission (“EEOC”)

in September of 2013, alleging gender, disability, and age discrimination. He later

sought permission to withdraw the charge so he could pursue the matter in the common

pleas court. The OCRC granted his request on July 17, 2014. On January 13, 2015,

following the Board’s termination of his employment contract, Spitulski filed a complaint

against the Board, Gault, and Baker alleging eight claims: (1) termination without good

and just cause in violation of R.C. 3319.16; (2) tortious violation of rights; (3) age

discrimination; (4) disability discrimination; (5) retaliation in violation of R.C.

6.
4112.02(I); (6) intentional infliction of emotional distress; (7) false light invasion of

privacy; and (8) intentional interference with business relationship.

        {¶ 13} Relevant to the present appeal, Spitulski alleged in his complaint that Gault

instructed Baker to “marshal evidence to use in terminating Spitulski,” and that Baker, at

Gault’s instruction, began creating documentation designed to lead to his discharge.

Spitulski said that Baker told him “They’re asking me when you’re going to retire,” and

“you’ve got too much gray hair.”1 And he claimed that the District tried to coerce him

into signing an unlawful retirement agreement. He also alleged that after filing his

OCRC charge, the District threatened to convert his paid suspension to an unpaid

suspension, and that it rejected the independent referee’s recommendation in retaliation

for having filed the OCRC charge.

        {¶ 14} In an order dated May 29, 2015, the trial court dismissed counts two and

eight of Spitulski’s complaint. It dismissed count one in an order dated September 10,

2015. In an order dated February 3, 2016, it dismissed Spitulski’s claim for punitive

damages and attorney’s fees. And in an order dated October 3, 2016, it dismissed counts

four and seven.

        {¶ 15} In its October 3, 2016 judgment, the trial court denied summary judgment

as to counts three (age discrimination), five (retaliation), and six (intentional infliction of

emotional distress) of the complaint. In doing so, it rejected Gault and Baker’s assertions

that they were statutorily immune from liability under R.C. 2744.01 et seq. as employees



1
    Baker denies making these comments.
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of a political subdivision. Gault and Baker’s present appeal is limited to this immunity

determination by the trial court. They assign error as follows:

              1. The Lucas County Court of Common Pleas erred in concluding

       that Appellant, James Gault and Heather Baker, are not immune from

       liability as to Plaintiff’s claim of age discrimination.

              2. The Lucas County Court of Common Pleas erred in concluding

       that Appellant, James Gault and Heather Baker, are not immune from

       liability as to Plaintiff’s retaliation claim.

              3. The Lucas County Court of Common Pleas erred in concluding

       that Appellant, James Gault and Heather Baker, are not immune from

       liability as to Plaintiff’s claim of intentional infliction of emotional distress.

                                   II. Standard of Review

       {¶ 16} Appellate review of a summary judgment is de novo, Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same

standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,

572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is

demonstrated:

       (1) that there is no genuine issue as to any material fact; (2) that the moving

       party is entitled to judgment as a matter of law; and (3) that reasonable

       minds can come to but one conclusion, and that conclusion is adverse to the

       party against whom the motion for summary judgment is made, who is

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

8.
       v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46

       (1978), Civ.R. 56(C).

       {¶ 17} When seeking summary judgment, a party must specifically delineate the

basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526

N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate

the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,

662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is

made, an adverse party may not rest on mere allegations or denials in the pleadings, but

must respond with specific facts showing that there is a genuine issue of material fact.

Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A

“material” fact is one which would affect the outcome of the suit under the applicable

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733

N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826,

675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).

                                  III. Law and Analysis

       {¶ 18} Gault and Baker’s three assignments of error challenge the trial court’s

finding that they are not statutorily immune from liability as to Spitulski’s age

discrimination, retaliation, and intentional infliction of emotional distress claims,

respectively. Their assignments of error examine the court’s ruling in the context of each

specific claim.



9.
       {¶ 19} Spitulski maintains that the question of immunity is not dependent upon the

validity of each specific claim; rather, he argues, “the essential question is whether [Gault

and Baker] are immune at all.” He identifies a number of factual issues purportedly

calling into question whether Gault and Baker’s conduct was malicious, in bad faith, or

wanton and reckless, thereby defeating their claim of immunity. He insists that these

questions must be answered by the trier of fact, thus rendering summary judgment

inappropriate.

                                  A. R.C. 2744.03(A)(6)

       {¶ 20} Where a person is an employee of a political subdivision, under R.C.

2744.03(A)(6), he or she will be immune from liability for “injury, death, or loss to

person or property allegedly caused by any act or omission in connection with a

governmental or proprietary function,” except under limited circumstances. That statute

provides:

              (6) In addition to any immunity or defense referred to in division

       (A)(7) of this section and in circumstances not covered by that division or

       sections 3314.07 and 3746.24 of the Revised Code, the employee is

       immune from liability unless one of the following applies:

              (a) The employee’s acts or omissions were manifestly outside the

       scope of the employee’s employment or official responsibilities;

              (b) The employee’s acts or omissions were with malicious purpose,

       in bad faith, or in a wanton or reckless manner;



10.
              (c) Civil liability is expressly imposed upon the employee by a

       section of the Revised Code. * * *

       {¶ 21} “R.C. 2744.03(A)(6) operates as a presumption of immunity.” (Citation

omitted.) Jackson v. McDonald, 144 Ohio App.3d 301, 308, 760 N.E.2d 23, 760 N.E.2d

24 (5th Dist.2001). Generally, whether a political subdivision employee is entitled to

immunity is a question of law. Pernell v. Bills, 6th Dist. Lucas No. L-09-1082, 2009-

Ohio-6493, ¶ 10.

       {¶ 22} “Malicious purpose” is the “willful and intentional design to do injury, or

the intention or desire to harm another, usually seriously, through * * * unlawful or

unjustified” conduct. Schoenfield v. Navarre, 164 Ohio App.3d 571, 2005-Ohio-6407,

843 N.E.2d 234, ¶ 22 (6th Dist.), quoting Cook v. Hubbard Exempted Village Bd. of Edn.,

116 Ohio App.3d 564, 569, 688 N.E.2d 1058 (11th Dist.1996). “Bad faith” connotes a

“dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty

through some ulterior motive or ill will partaking of the nature of fraud.” Id., quoting

Jackson at 309. “Wanton misconduct is the failure to exercise any care toward those to

whom a duty of care is owed in circumstances in which there is great probability that

harm will result.” Anderson v. City of Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711,

983 N.E.2d 266, ¶ 33 reconsideration denied 133 Ohio St.3d 1511, 2012-Ohio-6209, 979

N.E.2d 1289. And “reckless conduct” is “characterized by the conscious disregard of or

indifference to a known or obvious risk of harm to another that is unreasonable under the

circumstances and is substantially greater than negligent conduct.” Id.



11.
       {¶ 23} While a political subdivision employee’s entitlement to immunity is

ordinarily a question of law, whether there exists malice, bad faith, and wanton or

reckless behavior are generally questions of fact to be resolved by the jury. Schoenfield

at ¶ 24. “Summary judgment is appropriate only when the facts are clear and fail to rise

to the level of conduct that could be construed as malicious, in bad faith, or wanton and

reckless.” Long v. Vill. of Hanging Rock, 4th Dist. Lawrence No. 09CA30, 2011-Ohio-

5137, ¶ 18.

                               B. The parties’ arguments.

       {¶ 24} In their first assignment of error, Gault and Baker insist that they are

entitled to immunity as to Spitulski’s age discrimination claims because “R.C.

2744.03(A)(6)(a) and (b) require an extreme level of self-interested misconduct to

overcome a political subdivision employee’s immunity.” They deny that their conduct

rises to this level. They urge that they were merely performing their job duties in

response to multiple complaints from parents and guardians and Spitulski’s unexplained

loss of nearly a year’s worth of recorded hearings. They further claim that for purposes

of R.C. 2744.03(A)(6)(c), civil liability is not “expressly imposed” under R.C.

4112.01(A)(2) and R.C. 4112.02(A) so as to defeat immunity.

       {¶ 25} In their second assignment of error, Gault and Baker claim that they are

entitled to immunity concerning Spitulski’s retaliation claim based on the undisputed

timing of their involvement relative to Spitulski filing his September 2013 OCRC charge.

Specifically, they claim that aside from testifying at the referee hearing in May of 2014,

Baker’s involvement ended when she testified at the hearing on the record in August of

12.
2013, and they maintain that there is no evidence of when or if Baker even learned of the

OCRC charge. With respect to Gault, they claim that his involvement ended on October

4, 2013, when the District issued its notice of intent to terminate Spitulski, and even then,

his involvement between September 2013 and October 4, 2013, was limited to

recommending that the District follow through with issuing notice of intent to terminate

based on the hearing officer’s recommendation. They claim that everything after October

4, 2013, was governed by the statutorily-mandated process set forth in R.C. 3319.16, and

under that statute, the Board members were solely responsible for the December 2014

decision to terminate.

       {¶ 26} Finally, in their third assignment of error, Gault and Baker claim that they

are entitled to immunity on Spitulski’s claim for intentional infliction of emotional

distress because R.C. 2744.03(A)(6)(c) is inapplicable, and under R.C. 2744.03(A)(6)(a)

and (b), Spitulski cannot show that they acted outside the scope of their employment or

maliciously, in bad faith, or wantonly and recklessly. They maintain that the complaints

giving rise to disciplinary action came from parents, guardians, relatives, or supporters of

the District’s students—not from Baker or Gault themselves. They insist that Baker

merely listened, documented, and reported the complaints up the chain of command to

Gault (along with the information that Spitulski admittedly lost months’ worth of

recorded hearings); requested a hearing on the record; and obtained statements from the

complaining parties. Gault merely arranged for the hearing and presented the evidence to

the District hearing officer. Others made the decisions after this point. They claim that



13.
reasonable minds can conclude only that they acted, or attempted to act, in good faith in

fulfilling their job duties.

       {¶ 27} In response, Spitulski first argues that Baker and Gault lack statutory

immunity under R.C. 2744.09(B) to the extent that they were sued in their official

capacities. With respect to R.C. 2744.03(A)(6), Spitulski does not argue on appeal that

R.C. 2744.03(A)(6)(a) or (c) bars Gault and Baker’s claims of immunity. He argues only

that their acts were committed with malicious purpose, in bad faith, or wantonly or

recklessly under R.C. 2744.03(A)(6)(b).

       {¶ 28} Spitulski further contends that in the arguments in support of their

assignments of error, Baker and Gault improperly address the merits of his claims. He

insists that “[n]owhere in R.C. 2744.03(A)(6) does it state that immunity centers upon the

validity of the civil claim.” He, therefore, identifies a number of “fact issues” that

purportedly call into question whether Baker and Gault’s conduct negated their claim of

immunity under R.C. 2744.03(A)(6)(b):

                Whether Baker’s emails of May 8, 2013, reflect that she was using

       Spitulski as a scapegoat to preserve her own reputation because she was

       concerned that Spitulski’s “inadvertent mislocation” of recordings had put

       them in “an ugly situation;”

                Whether the true reason for the CDI was because Spitulski had

       “too much gray hair” and “they” wanted him to retire;

                Whether Baker deprived Spitulski of due process and his

       contractual right to progressive discipline by failing to issue buff sheets
14.
      relating to five of the complaints against him and his “mislocation” of the

      recordings;

              Whether Baker purposely failed to properly investigate five

      complaints by not discussing them with Spitulski;

              Whether Gault deprived Spitulski of the due process right to

      confront his accusers by using their written statements at the CDI;

              Whether Gault made an untimely request for the CDI hearing;

              Whether Baker falsely told Heldt that Spitulski violated FERPA

      and Gault falsely informed Heldt that Spitulski violated the non-existent

      R.C. 9.69;

              Whether at the R.C. 3319.16 hearing, Baker and Gault exceeded

      the grounds for termination by prosecuting him with events “not

      encompassed by the notice of such grounds;”

              Whether Baker and Gault prosecuted him at the CDI and R.C.

      3319.16 hearings with “contractually illicit documents;”

              Whether Gault improperly relied on prior discipline and attempted

      to rely on an inapplicable Board policy; and

              Whether Gault’s recommendation caused the Board to reject the

      referee’s report following receipt of the OCRC notice of right to sue.




15.
                                      C. Our analysis.

       {¶ 29} The trial court found that “the record evidence and applicable law lead to

the conclusion that Baker and Gault are not immune from liability because there was a

sufficient causal link between their discriminatory words and actions and the Board’s

decision to terminate Spitulski.” It never identified which, if any, R.C. 2744.03(A)(6)

factor negated Gault and Baker’s claim of immunity. Spitulski argues that provision (b)

operates to negate Baker and Gault’s statutory immunity. He does not argue that (a) or

(c) apply. We, therefore, limit our discussion to this particular exception to statutory

immunity.

       {¶ 30} As Spitulski points out, our review of this appeal is limited to the trial

court’s immunity determination. Coterel v. Reed, 2d Dist. Greene No. 2015-CA-69,

2016-Ohio-7411, ¶ 15. We do not review whether there is factual support for each of the

elements of the claims for relief. Id. We must make all permissible inferences and

resolve all questions of credibility in Spitulski’s favor to determine whether genuine

issues of material fact exist, so that a reasonable jury could find that Gault and Baker

acted with a malicious purpose, in bad faith, or in a wanton or reckless manner. Id. at ¶

12.

       {¶ 31} To be sure, at this stage we cannot review the trial court’s summary

judgment decision as it relates to the merits of Spitulski’s claims. Id. at ¶ 8, 12, 15.

Having said this, we cannot simply disregard the relationship between the questions of

fact identified by Spitulski and the nature of the claims that remain pending in the trial

court. We must to some extent consider how the purported questions of fact relate to the

16.
remaining claims. The only claims that remain viable are Spitulski’s age discrimination,

retaliation, and intentional infliction of emotional distress claims. All his other claims

were disposed of on summary judgment.

       {¶ 32} As to Spitulski’s age discrimination claim, the trial court denied summary

judgment because it found that Baker’s questions about when he was going to retire and

her statement that the district wanted to discharge him because he had too much gray hair

created an issue of fact as to whether the action taken against Spitulski was motivated by

age animosity. As to Spitulski’s retaliation claim, the trial court pointed to action taken

by Spieldenner—not Baker or Gault— as creating an issue of fact as to whether the

Board took action against him in retaliation for engaging in protected activity.2 And as to

the intentional infliction of emotional distress claim, the trial court cited alleged abuses of

power by Baker and Gault during the disciplinary proceedings as creating questions of

fact precluding summary judgment on the claim.

       {¶ 33} Generally, issues regarding malice, bad faith, and wanton or reckless

behavior are questions presented to the jury. Schoenfield, 164 Ohio App.3d 571, 2005-

Ohio-6407, 843 N.E.2d 234, ¶ 24. But where the record lacks evidence demonstrating

that the political subdivision employee acted in such a manner, a trial court correctly

grants summary judgment. Price v. Telb, 6th Dist. Lucas No. L-08-1099, 2009-Ohio-

3496, ¶ 9.




2
 Even Spitulski’s complaint alleges no retaliatory conduct committed specifically by
Baker and Gault.
17.
       {¶ 34} Here, after considering the questions of fact identified by Spitulski in the

context of the trial court’s rationale for denying summary judgment on his age

discrimination, retaliation, and intentional infliction of emotional distress claims, we find

that (1) both Baker and Gault are entitled to statutory immunity as to the retaliation claim

because there exists no question of fact as to whether they acted with malice, in bad faith,

wantonly, or recklessly, and (2) neither is entitled to immunity as to the intentional

infliction of emotional distress claim because there exists a question of fact as to whether

they acted with malice, in bad faith, wantonly, or recklessly. As to the age discrimination

claim, while only Baker’s statements were identified by the trial court in addressing the

facts specific to that claim, the trial court pointed to evidence of Gault’s participation in

the proceedings leading to Spitulski’s discharge in support of its decision to deny

summary judgment to Baker and Gault individually. We, therefore, find that neither

Baker nor Gault is entitled to statutory immunity as to Spitulski’s age discrimination

claim because there exists a question of fact as to whether they acted with malice, in bad

faith, wantonly, or recklessly in pursuing disciplinary proceedings against him.

       {¶ 35} Finally, we address Spitulski’s argument that Baker and Gault lack

statutory immunity under R.C. 2744.09(B) because they were sued both as individuals

and “in their official capacities.” Ohio case law recognizes that “R.C. 2744.09(B)

removes immunity only as to the political subdivision and does not remove immunity

from the employees of political subdivisions.” Kravetz v. Streetsboro Bd. of Educ., 11th

Dist. Portage No. 2011-P-0025, 2012-Ohio-1455, ¶ 32, citing Zumwalde v. Madeira &



18.
Indian Joint Fire Dist., 128 Ohio St.3d 492, 2011-Ohio-1603, 946 N.E.2d 748, syllabus.

We, therefore, reject this argument.

       {¶ 36} Accordingly, we find Baker and Gault’s second assignment of error well-

taken, and we find their first and third assignments of error not well-taken.

                                       IV. Conclusion

       {¶ 37} We find that the trial court erred in denying Baker and Gault’s claim of

statutory immunity as to Spitulski’s retaliation claim, however, we find that the trial court

did not err in denying Baker and Gault’s claim of statutory immunity as to Spitulski’s age

discrimination and intentional infliction of emotional distress claims. We, therefore,

affirm, in part, and reverse, in part, the October 4, 2016 judgment of the Lucas County

Court of Common Pleas. We remand this matter to the trial court for proceedings

consistent with this decision. Gault and Baker are ordered to pay the costs of this appeal

under App.R. 24.

                                                         Judgment affirmed, in part,
                                                         and reversed, in part.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Arlene Singer, J.                               _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
James D. Jensen, P.J.                                       JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


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