At a pre-trial hearing, a federal judge in the Southern District of Ohio has dismissed a civil rights and negligence case against UC, a professor and its Ombudsman, Lillian Santa Maria. Plaintiff Cynthia McConaughy, a student, claimed that the defendants wrongfully denied her pregnancy leave and then retaliated, causing her to drop out.
McConaughy's lawsuit alleged Title IX discrimination and included a claim that the UC Ombuds was negligent for not informing her about medical leave and gave ineffective advice. Even without considering the details of the alleged negligence (were not included court's written decision), the court held that the plaintiff's claim against the Ombuds was barred by the Eleventh Amendment to the Constitution which bars a state law negligence claim against a state university in federal court. The court also held that the the plaintiff could not pursue negligence claims against the Ombuds in her individual capacity because she is entitled to immunity under state law. The court dismissed all of the plaintiff's claims without leave to amend. (McConaughy v. Univ. of Cincinnati, 2011 U.S. Dist. LEXIS 41090 (S.D. Ohio Apr. 15, 2011).)
The case comes out of the trial court so it does not create any precedent. Nonetheless, it does give some indication of the defenses available to Ombuds working in the public sector.
The case comes out of the trial court so it does not create any precedent. Nonetheless, it does give some indication of the defenses available to Ombuds working in the public sector.
How does this relate to California law regarding "immunity under state law"? I would be interested in seeing the wording of the law in Ohio that assures this protection.
ReplyDeleteThe court cited Ohio Revised Code, section 9.86 (Immunity of public officers and employees), which provides as follows:
ReplyDeleteExcept for civil actions that arise out of the operation of a motor vehicle and civil actions in which the state is the plaintiff, no officer or employee shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer’s or employee’s actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner.
This section does not eliminate, limit, or reduce any immunity from civil liability that is conferred upon an officer or employee by any other provision of the Revised Code or by case law. This section does not affect the liability of the state in an action filed against the state in the court of claims pursuant to Chapter 2743. of the Revised Code.
Judge Herman Weber would have ruled differently but for McConaughy's attorneys who failed to submit any material evidence in their possession. However, this will soon be demonstrated in the subsequent legal malpractice lawsuit McConaughy has filed against her former counsel.
ReplyDelete