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Morway v. Ohio Bureau of Workers' Compensation

Court of Claims of Ohio

November 8, 2004

LAURA L. MORWAY Plaintiff:

S.C. reporter December 6, 2004

Richard J. Thomas John T. Heino Attorneys for Plaintiff

Lisa M. Eschbacher Assistant Attorney General Attorney for Defendants


J. Warren Bettis Judge

{¶ 1} The court[1] held an evidentiary hearing in this case to determine whether Arlene Overton and George Durkin, employees of defendant, the Ohio Bureau of Workers' Compensation (BWC), are entitled to civil immunity pursuant to R.C. 2743.02(F) and 9.86.

{¶ 2} At the outset of the proceedings, plaintiff s counsel asserted an argument as to whether the court has jurisdiction to determine immunity in the instant case. Specifically, counsel argued that the Court of Claims can determine immunity only with respect to state law claims but that, here, all of plaintiff s claims are based upon the federal Fair Labor Standards Act, 29 U.S.C.S. §201, et seq. Accordingly, plaintiff s counsel contends that, lacking jurisdiction over federal law claims, this court must conclude that neither Overton nor Durkin is entitled to personal immunity under R.C. 9.86. In support of this argument, counsel cited the following case law: Conley v. Shearer, 64 Ohio St.3d 284, 1992-Ohio-284; Gumpl v. Bost (1992), 81 Ohio App.3d 370; and Birchfield v. Mullins (1992), Ohio App. Lexis 306.

{¶ 3} Upon due consideration, and for the reasons that follow, the court disagrees.

{¶ 4} The court first notes that each of the cases relied upon by plaintiff involve alleged violations of Section 1983, Title 42, U.S.Code. A complaint alleging violations of Section 1983 must meet two requirements: 1) there must be an allegation that the conduct in question was performed by a person under color of law; and 2) the conduct must have deprived the person of a federal right. Cooperman v. Univ. Surgical Assoc, Inc. (1987), 32 Ohio St.3d 191, 199. It is well-settled that the state is not subject to liability under Section 1983 because the state is not a "person" within the meaning of that code section. See, e.g., Jett v. Dallas Indep. School Dist. (1989), 491 U.S. 701; Burkey v. Southern Ohio Correctional Facility (1988), 38 Ohio App.3d 170; White v. Chillicothe Correctional Institution (Dec. 29, 1992), Franklin App. No. 92AP-1230. Thus, the cases cited by plaintiff provide no authority for determination of the jurisdictional issue presented herein.

{¶ 5} Nevertheless, plaintiff is correct in asserting that the procedure for determining immunity under R.C. 2743.02 applies only to causes of action under state law. See Gumpl v. Bost, supra, at 374, citing, Besser v. Dexter (1990), 68 Ohio App.3d 510. Upon review of the complaint in this case, the court finds that plaintiff does allege such causes of action or, at the very least, causes that are arguably premised upon state law.

{¶ 6} Briefly stated, plaintiffs complaint is based upon a series of incidents that occurred after she had attended a required training course in Columbus, Ohio from February 24-28, 2003, and had subsequently submitted a request to her supervisor, George Durkin, for overtime/compensatory time, at a rate of one-and-one-half times the hourly rate, for a period of 4.75 hours. Durkin advised plaintiff to "flex out" the time during the pay period within which she had submitted the request. Plaintiff challenged that decision pursuant to the terms of the Fair Labor Standards Act (FLS A). As a result, Durkin sought the advice of Arlene Overton, the service office manager, and thereafter notified plaintiff that her request for overtime compensation had been denied. Plaintiff then reported the outcome to her union representative. It was ultimately determined that plaintiffs overtime request should not have been denied. Durkin and Overton were advised of that outcome.

{¶ 7} Plaintiff contends that, after Durkin and Overton were proved to be wrong, they began to harass her and to engage in retaliatory actions. Her complaint states that their conduct included, but was not limited to, the following:

{¶ 8} "*** Durkin falsely accusing [her] of taking more than one (1) hour for lunch and falsely reporting the same to *** Overton;

{¶ 9} "*** Durkin falsely accusing [her] of directing a BWC customer to return to the BWC at a later date to be serviced by another BWC employee and falsely reporting said ...

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