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Morway v. Ohio Bureau of Workers' Compensation10/27/2005
{ } Plaintiff-appellant, Laura L. Morway, filed a complaint in the Ohio Court of Claims against the State of Ohio, Bureau of Workers' Compensation, alleging Fair Labor Standards Act ("FLSA") violations, tortious wrongful discharge in violation of public policy, civil conspiracy and requested compensatory damages. The Court of Claims held an evidentiary hearing and determined that the employees were entitled to immunity and that the evidence was insufficient to establish that the employees' conduct was manifestly outside the scope of the state employment or that any actions were taken with malicious purpose, in bad faith or in a wanton or reckless manner. The Court of Claims found that the courts of common pleas do not have jurisdiction over civil actions against the employees based upon the allegations in this case. Appellant filed a notice of appeal and raises the following assignments of error:
[I.] The trial court's determination that George Durkin and Arlene Overton are entitled to immunity is contrary to law, as state law immunity determinations do not apply to claims based upon federal law.
[II.] The trial court's determination that George Durkin and Arlene Overton are entitled to immunity is against the manifest weight of the evidence.
{ } Appellant's allegations are based upon a series of incidents, which occurred within the context of her employment at the Bureau of Workers' Compensation in the Youngstown office. Appellant was employed as a Claims Assistant but began working as an Employer Services Specialist ("ESS") in January 2003, which involves talking to employers about the premium-discount program, drug-free workplace program, conducting consultations with employers and covering the front desk in the absence of another employee, the Account Examiner 2. (Tr. at 39.) Two times she traveled to Columbus for training in late January and one week in February. During the week in February, appellant worked 44 hours and 45 minutes. She completed a request for overtime pay, but her immediate supervisor, George Durkin, who is the Risk Supervisor, denied the request and asked her to flex the time. (Tr. at 44-48.) Durkin checked with his supervisor, Arlene Overton, who is the Service Office Manager, who also denied the request. Appellant then approached the union steward, Elizabeth Chahine, who contacted the assistant administrator in Columbus and appellant was subsequently, on March 6, 2003, informed that she would receive overtime pay. (Tr. at 51-52; 147-148.)
{ } Appellant argues that, after this incident, Durkin and Overton began to harass her and engage in retaliatory actions. The next incident occurred on March 7, 2003, when appellant was covering the front desk because the Account Examiner 2 was absent. (Tr. at 54.) Appellant testified that, at 12:30 p.m., J.J. Kovacs relieved her. She went to the restroom and then to lunch, leaving the office at 12:36 p.m. She returned just before 1:36 p.m. (Tr. at 55-56.) Durkin was seated at the front desk and, in a loud voice, began to tell her she should not extend her lunch hour beyond the allotted one hour. He said, " 'Lady, what does that clock say[?]' " (Tr. at 57.) He also complained that she had not properly logged-in phone calls, although she had not been trained to do so. (Tr. at 60.) Durkin also told her to distribute the mail, which she had already done. (Tr. at 66.) Mack Beck, a security guard, was in the lobby at the time and heard the exchange between appellant and Durkin. (Tr. at 134.) Beck testified that Durkin chastised appellant in an unpleasant tone of voice and appellant was crying. (Tr. at 137; 140.)
{ } On March 12, 2003, appellant filed a grievance concerning Durkin's behavior
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