NOT RECOMMENDED FOR PUBLICATION File Name: 17a0488n.06

Nos. 16-4054/16-4094 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT PAUL MATUS, Plaintiff-Appelle e/Cross-Appellant,

v. LORAIN COUNTY GENERAL HEALTH DISTRICT, et al., Defendant-Appellant/Cross-Appellees. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: SILER, CLAY, and WHITE, Circuit Judges. HELENE N. WHITE, Circuit Judge. Defendant-Appellant Lorain County General Health District (the “health district”) appeals the district court’s deni al of its motions for judgment as a matter of law and for a new tria l, as well as the cour t’s entry of a $615,175.18 judgment in favor of its former medical direct or, Plaintiff-Appellee Pa ul Matus, on Matus’s breach-of-contract and retaliation claims, based on a remitted jury verdict of $1,365,175.18. Matus cross-appeals the remittitur and the grant of summary judgment to the health district on three other claims. For the reasons that follow, we (1) reject the health district’s challenges to the jury’s verdicts and the court’s rulings, (2) ag ree with the health district that remittitur is required under Ohio law, and (3) agree with Matu s that the district cour t erred in choosing the remittitur amount. We AFFIRM in part, and VACATE and REMAND in part.Nos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

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I A The Lorain County General Health District is a state agency responsible for public-health services in Lorain County, Ohio. A board of health (the “board”) governs it, and a commissioner, appointed by the board, manages it day to day. Paul Matus was the health district’s medi cal director from 1991 through early 2013, when the board discharged him. Matus’s employment agreement provided that he would serve as medical director from March 31, 2009, at an annua l salary of $48,000, “for an indefinite and continuing term” and that the agreement would be terminable on thirty days’ written notice for “cause,” including, but not limited to, “breach or neglect of duty, violation of any law, dishonesty, insubordination, or gr oss misconduct.” R. 1-1, PID 34–35. He contends he was discharged without “cause” and in retaliation for participati ng in a workplace investigation. In July 2012, commissioner Ken Pearce announced his intention to retir e. After retiring, Pearce would begin drawing retirement benefi ts, and, after a sixty-day waiting period, would return to the health district as interim commissioner, allowing him to receive a salary as well. Edward von Hofen, the board’s president and Matus’ s brother-in-law, told Matus at a backyard picnic that he was uncomfortable with Pearce’s plan. Matus replie d that the arrangement is “not uncommon,” but agreed that it woul d be good for the health district to have new leadership. Trial Tr., R. 109-1, PID 4062–63. At the board’s August 15 meeting, von Hofen opposed Pearce’s plan to retire and then return, but the board voted to accept it. Tanas Wilcox, the health district’s nursing director, tes tified that after the August 15 mee ting, Pearce told her that he would fire her and that “someone else was going to take care of [Matus].” Trial Tr., R. 114, PID
4400.Nos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-3- About two weeks later, Pearce wrote to Benjamin Dave y, a prosecutor who served as counsel to the health district , about a conversation he had with board-employee Stephanie Charles. This conversation took place a week before the August 15 boa rd meeting and three weeks before Pearce reported it: Ms. Charles stated that while sh e was instructing Dr. Matus on how to access and use the Emergency Alertfind website, he sat uncomfortably close to her and be gan a conversation of a personal nature including comments alludi ng to his relationship with his wife. His statements included char acterizing his wife as acting old and going to bed like an “old woma n.” Stephanie commented that these comments made her uncomfortab le and were unr elated to the work environment and of a sexual na ture that she felt she would be in a very difficult situation if Dr . Matus were to be named health commissioner. Aug. 28, 2012 Lett., R. 58-9, PID 786. Charles testified that during the winter of 2010/2011, she trained Matus on how to use a software program. During the training he discus sed personal matters while sitting uncomfortably close to, but never touching, her: “I don’t think he was aware that I felt like my personal space was violated. I don’t think he took that in to consideration.” Trial Tr., R. 108, PID 2876. Plaintiff’s expert, organizationa l-behavior professor Susan Case , testified that she did not “think that the statement by Stephanie Charles th at she was made uncomfortable warranted an outside investigation.” Tria l Tr., R. 110, PID 3430. But the prosecutor’s office, assistant prosecutor Gerald Innes testified, determined that given Matus’s stature, it would be best to engage an outside firm to investigate. Prosec utors briefed the board at its September 12 meeting that an employee complained of Matus making inappropriate comments; they recommended an investigation, which the board hired Clemans, Nelson & Associates (“CNA”), a human-resources firm, to conduct.Nos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-4- Between October 26 and November 5, CNA i nvestigator Sandy Conley interviewed five young females who were current or former employees of the health district, including Charles. During the investigation, Charles confirmed that there was no inappropriate touching by Matus, that he sat uncomfortably close to her, and that she was uncerta in whether he realized he was sitting too closely. Other interviewees desc ribed Matus’s conduct toward younger women in the office as “awkward,” “creepy,” “weird,” or “o verly flirtatious,” including compliments about their personal appearances. Conley Report, R. 58-17, PID 817. But the interviewees were not offended by the comments, explaining that some in the office viewed them as part of Matus’s personality, or as an example of “generational differences.” Id. at PID 817–18. Conley found that although Matus did not sexua lly harass Charles, and no other evidence suggested that Matus engaged in sexual harassmen t, he should neverthele ss be counseled to avoid making comments about the appearance of female employees and to respect personal space. Her report suggested that the disconnect between Matus and younger female employees could be generational. Conley testified that she did not inte rview Matus because she did not believe his conduct was sexual harassment, and that she would have interviewed him if she had concluded otherwise. Conley delivered her conclusions orally to Davey on Friday, December 7. The next day, Matus received a call from Laura Baus-Fenick, a former health-district employee whom Conley interviewed, to alert him to th e investigation. She testified th at she told Matus she believed Charles was the source of the investigation because her name was conspicuously missing from the interview list. Matus testified that this call from Baus-Fenick sent him into a panic, leaving him embarrassed, humiliated, and confused. Seeking answers, he asked the health district’sNos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-5- administrative director, Tonya Ko llen, “is there something going on about me? . . . . Am I being investigated?” Trial Tr., R. 114, PID 4093. Kollen responded “No, Dr. Matus, no.” Id. On December 13, Conley presented her fi ndings to Dave Covell, then the acting commissioner of the health district. Conley told him that Matus had not engaged in sexual harassment, and that she found only a “sensitivity issue” that should be addressed with training. Trial Tr., R. 109-1, PID 3905. After the board heard a summary of Conley’s findings at its December 12 board meeting, it in structed Covell “to tell [Matus] that . . . there were a few complaints, there was an investigation done, and that it turned out that there was not, it did not amount to sexual ha[]rassment, but that there were some sensitivity training needs . . . .”. Trial Tr., R. 108, PID 3142. Covell planned to talk to Matus at th e lunch the two planned to have two days later. Covell testified that at that time the matter was still open: The idea was [after I spoke to Matus] he w ould have an opportunity to talk to the Board and the Board could say, “Here is what happened, this is what it is, we want to talk to you a little about it,” talk about sensitivity, and Dr. Matus could explain he didn’t mean it that way or whatever you want to explain, and at that point we’d say okay, we’ll move on with sensitivity training, and that would be it. Id. at PID 3144. Covell had lunch with Matus on December 14: I told him the results of what happened and that we had this preliminary result, but we didn’t have the final written document, so it wasn’t officially, I guess, over until that point, yes, so I did tell him that here’s the results, here’s what would happen, there wouldn’t be any discipline, it was a sensitivity issue, there would be some sensitivity training, and the final document would easily be there by the next month board meeting and at that point he could talk to the Board or whatever. Trial Tr., R. 109-1, PID 3911.Nos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-6- Three days after the lunch, Cove ll sent an email to the board: . . . I told [Matus] that when the board has the entire investigation reported to you that there would be a more formal conversation. . . . Hopefully, he w ill digest the conversation prior to the board meeting and we can put this behind us . . . . Dec. 17, 2012 Email, R. 58-20, PID 834–35. Despite the plan for Matus to address the board, Covell would not tell him what the factual basis of the investigation was. At trial, Covell agreed when plaintiff’s counsel asked him whether he told Matus “that there were multiple complaints from women.” Trial Tr., R. 109-1, PID 3913 (emphasis added). Matus testified that he had no information about the investigation, apart from suspecting that Charles was the source, and th at being kept in the dark about the complaints and allegations caused him to suffer substantial anxiety and emotiona l distress. On January 6, he decided to call Charles’s ex-husband, David Ch arles (“David”), with whom he was acquainted, seeking information to use in preparing for the board’s upcoming meeting. Matus recognized that the call would be sensitive, resolved to “be very careful,” and did not want to “insult” David. Id. at PID 4112. He first asked wh ether David was aware of the investigation; David said he was not. Next, Matus asked “[d]o you thi nk that Stephanie, you know, would be capable of doing that for some r eason?” David replied “[n]ot the Stephanie I know.” Id. Matus testified that he made no disparag ing comments, explaining that he was just desperate for information because he did not want to go before the board unprepared. 1 Matus testified that he asked only a few questions about Charles at the beginning of the fifty-two minute call, the balance of the conve rsation being about other topics.

1 He did, however, admit that asking David a question to the effect of “is she capable of doing something like that,” could be perceived as insulting. Id. at PID 4114.Nos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-7- David testified that he was acquainted with Matus, but did not know him well, and that during the call, Matus asked him repeatedly whet her Charles was a woman of integrity. Matus also asked whether Charles would fabricate a story, implying that she was dishonest; David responded that she was “a woman of good mora lity.” Trial Tr., R. 114, PID 4500. David acknowledged that Matus did not di rectly accuse Charles of bei ng a liar or of other wrongdoing, nor did he directly attack her. David confirme d that he and Matus discussed topics other than Charles, including scuba diving an d a high-school forensics class. After hanging up, David called Charles, who became upset that Matus had contacted David. Charles notified Kollen and Covell. Although Charles was “infuriated” by Matus’s call to her ex-husband, which she considered harassing, sh e admitted at trial that the call did not have an adverse effect at wor k. Trial Tr., R. 108, PID 2903, 2905–07. Kollen was surprised that Matus called David, and considered the call to be retaliatory toward Charles. Case disagreed, testifying that under the health di strict’s personnel pol icy, the retaliated-agai nst employee’s work must be adversely affected, a conditi on not satisfied by the call to David. 2
Matus was not allowed to address the board at its January 9 meeting. Board vicepresident William Spreng testif ied that Covell told the board during its executive session, from which Matus was excluded, that Matus called Charles’s ex-husband and made “disparaging” comments about her. Trial Tr., R. 108, PID 3106–07. The board reviewed no documentation, but it considered the call to be an “[e]xtremely serious” matter, indeed, grounds for discharge. Id. at PID 3107–08. Spreng and other board member s agreed that Matus should be given an opportunity to resign. The board instructed Spre ng, Covell, and Innes to tell Matus that it was

2 The policy provides that it “shall be unlawful, inappropriate and a violation of this policy for any employee who is the subject of a sexual harassment investigation to take retaliatory action so as to affect the work environment of the complainant or any person involved in the investigation.” R. 58-5, PID 776.Nos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-8- aware of the call to David, that it considered the call to be a “very serious matter,” and to recommend that he resign ra ther than be discharged. Id. at PID 3109. Matus testified that after th e executive session, Covell motione d him over and said “[t]he Board wants to know if you will come to a meeting on Friday and have a meeting.” Trial Tr., R. 109-1, PID 4118. Matus demanded to know what th e meeting was about: “Is it about this investigation? . . . . I want [sic] know everythi ng. . . . . I’m just literally, physically dying. I can’t eat, I can’t sleep. I need to know. Will you please tell me?” Id. Covell, according to Matus, replied “[w]e’ll tell you everything,” and wh en asked, told Matus that he did not need a lawyer and that this woul d be a private meeting. Id. at PID 4118–19. Spreng, Covell, Innes, and Matus attended the meeting. Innes refused to give Matus informa tion about the sexualharassment investigation, adding that “[w]e have a bigger problem now.” Id. at PID 4121–22. Innes told Matus that the board intended to disc harge him because he had reached into Charles’s personal life by contacting her ex-h usband. Matus testified that In nes threatened him: “[Y]ou have five business days to resign and go away qu ietly or it is going to become public. . . . And we’ll terminate you publicly.” Id. at PID 4130. Matus refused to resign. The board resolved to discharge him for “cause,” subject to a pre-disciplinary hearing presided over by neutral Frank Hatfield. It brought seven “cause” charges against him. Hatfield found misconduct on Matus’s part on three: that he (1) made “personal and derogatory attacks” on the character of fema le employees, including Charles; (2) contacted David; and (3) threatened to blow the whistle on misconduct in the health district, but refused to provide supporting documentation. R. 58-29, PID 858–59. The board voted on April 10 to terminate Matus’s employment for “cause” based on “engag[ing] in multiple acts of misconduct and with respect to your interaction with DistrictNos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-9- employees and family members.” Apr. 12, 2013 Lett., R. 75-16, PID 2372. The termination was effective May 17, and this action followed.
B Matus brought suit in state c ourt against the health distri ct, Pearce, Spreng, Covell, and Innes, alleging nine counts: (1) breach of contract, (2) breach of contractual good faith, (3) statelaw age discrimination, (4) state- law age-based hostile work envi ronment, (5) state-law unlawful retaliation, (6) invasion of privacy (false light), (7) defa mation, (8) intentional affliction of emotional distress (IIED), (9) and First Ame ndment retaliation under 42 U.S.C. § 1983. The defendants removed the action based on th e First Amendment retaliation claim, and Matus amended his complaint to drop the defa mation and invasion-of-privacy claims. Both Matus and defendants sought summary judgm ent. The district court denied Matus’s motion in its entirety; it gran ted summary judgment in part to defendants on Matus’s First Amendment, age-discrimination, hostile-work-envi ronment, and IIED claims; it denied summary judgment on the contract and state-law retaliation claims. 3
After the close of Matus’s case in chief, the h ealth district moved for judgment as a matter of law (“JMOL”); the district court did not address the motion at that time, acknowledging that the health district had reserved its right to renew the motion after the verdict.
See Fed. R. Civ. P. 50(a)–(b).

3 The district court initially held that Matus’s pa rticipation in the January 11 meeting qualified as “participating” in an investigation under Ohio law, but that his call to David did not. The court reversed course at trial, however, and allowed the call to David to be considered in relation to the retaliation claim: “when you hear more of the evidence and it becomes mo re clear, I think it was wrong to ex clude the phone ca ll aspect on the retaliation claim.” Trial Tr., R. 111, PID 3722. Before clos ing arguments, the court instructed the jury that it could consider the call to David in deciding whether the health district retaliated against Matus. Contrary to the health district’s argument on appeal, this decision did not prejudice it. The health district consistently argued that it discharged Matus because he retaliated ag ainst Charles. If true, this asserti on would mean that there was “cause” to discharge Matus (i.e., the board did no t breach the contract) and that his ca ll to David was misconduct, not mere participation in an investigation (i.e., the board did not re taliate). Nothing stopped the health district from making its case that Matus retaliated against Charles and as a re sult was discharged for cause. And had the jury believed this argument, it would have returned verdicts in the health district’s favor.Nos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-10- Matus presented the deposition of certified public accountant and valuation expert Charles Ciuni regarding his economic damages. Ciuni calculated that Matus’s economic damages—from past and future lost wages and benefits—amounted to $365,175.18. Additionally, Matus testified that he suffered considerable physical and mental distress from the investigation and his discharge. The district court instructed the jury that economic damages for the breach-of-contract and retaliation claims would be the same and should not be duplic ated, and that it was permitted to award non-economic damages only for the retaliation claim: I told you what the breach of contract damages were.
*** [I]f you deliberated on Count 1 [br each of contract] and found in favor of Dr. Matus and then awarded damages per these instructions in Count 1 . . . and find in Dr. Matus’ favor on Count 2 [retaliation] . . . [s]ome of the damages are duplicative is what I’m saying. That means you wouldn’t award double damages if you find in favor of Dr. Matus on Count 1 and Count 2. However, there are some damages that Dr. Ma tus can recover in Count 2 that are not covered in Count 1. *** So when I read all the damage calculations in Count 2, keep in mind that in the event you find in favor of Dr. Matus on Count 1, part of the damages you wouldn’t co nsider in Count 2 because they are duplicative. I think that’s clear. Trial Tr., R. 112, PID 3817. The jury returned verdicts in favor of Matus, awarding him $365,175.18 (the same amount calculated by Ciuni) in economic damages on his contract claim, and $0 economic and $1,000,000 non-economic damages on his retaliation claim. After verdict, the he alth district renewe d its JMOL motion. See Fed. R. Civ. P. 50(b). It argued that the law and eviden ce could not have supported Ma tus’s contract and retaliation claims because (1) he was an unclassified employee and thus his employment contract was void,Nos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-11- (2) he was terminated for cause, (3) he did not pa rticipate in “protected activity” under Ohio law, (4) and, in any case, his participation in th e investigation was not a but-for cause of his discharge, but rather he was discha rged for retaliating against Charles. In the alternative, the health district sought a new trial, argu ing that the jury’s verdict was against the manifest weight of the evidence in li ght of Hatfield’s finding that Matus engaged in misconduct by calling David. It also argued that a new trial, or remittitur, was warranted because the damages were duplicative between the contract and tort claims, and there was no evidence it caused physical or ment al injury to Matus. Fina lly, it argued that the $1,000,000
award for the retaliation claim exceeded Ohio’s statutory cap on tort non-economic damages. The district court denied the JMOL and ne w-trial motions and granted the remittitur motion. It entered judgment in favor of Matus, reducing his non-economic damages to $250,000.
II A. Judgment as a Matter of Law We review de novo the denial of a motion for JMOL. Braun v. Ultimate Jetcharters,
LLC , 828 F.3d 501, 509 (6th Cir. 2016). Judgment as a matter of law is appropriate only where “the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the [non-moving] party[.]” Fed. R. Civ. P. 50(a)(1). In diversity cases, we apply the forum state’s standard of review to sufficiency-of-the-evidence challenges. Aetna Casualty & Surety Co. v. Leahey Constr. Co. , 219 F.3d 519, 532 (6th Cir. 2000). Under Ohio law: The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion [for judgment notwithstanding the verdic t] is made, and, where there is substantial evidence to support hi s side of the case, upon which reasonable minds may reach diffe rent conclusions, the motionNos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-12- must be denied. Neither the we ight of the evidence nor the credibility of the witnesses is for the court’s determination . . . . Posin v. A.B.C. Motor Court Hotel, Inc. , 344 N.E.2d 334, 338 (Ohio 1976). Breach of Contract In order to establish a breach of contract, “it must be shown by a preponderance of the evidence that (1) a contract existed, (2) one pa rty fulfilled his obligations, (3) the other party failed to fulfill his obliga tions, and (4) damages result ed from that failure.” Blake Homes, Ltd. v. FirstEnergy Corp. , 877 N.E.2d 1041, 1052 (Ohio Ct. App. 2007) . All contracts formed under Ohio law contain an implied covena nt of good faith and fair dealing. Third Fed. Sav. & Loan Ass’n of Cleveland v. Formanik , 64 N.E.3d 1034, 1048 (Ohio Ct. App. 2016) (collecting cases). “‘Good faith performance or enforcement of a c ontract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party.’ . . . [B]ad faith may consist of inaction, or may be the ‘abuse of a power to specify te rms, [or] interference with or failure to cooperate in the other party’s performance.’” Littlejohn v. Parrish , 839 N.E.2d 49, 54 (2005) (quoting Restatement (Second) of the Law of Contr acts § 205 cmts. a, d.) (final alteration in original). On appeal, the health district argues that there was no legal basis for the jury’s contractclaim verdict because Matus was an unclassified employee, making his discharge-only-for-cause job protection void as against public policy. Public employees in Ohio are either “classified” or “unclassified.” Classified empl oyment entitles the employee to retain his position “during good behavior and efficient service,” O.R.C. § 124.34(A), whereas unclassi fied employees do not receive tenure protection and may be discharged without cause. See State ex. rel. Trimble v. State Bd. of Cosmetology , 364 N.E.2d 247, 249 (Ohio 1977).Nos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-13- Under § 3709.13, “[e]mployees of [a general health district] board, other than the commissioner, shall be in the classified service of the state, and all employees of the board may be removed for cause by a majority of the board.” The health district argues that § 3709.13 deals with the appointment of staff, e.g., nurses and physicians other than the medi cal director, noting that those staff members ar e appointed on the “recommendation” of the commissioner. In contrast, under § 3709.11, when the commissioner is not a physician, a medical director is appointed directly by the board. The health district is correct up to that point, but it does not overcome § 3709.13’s plain language that “employees . . . other than the commissioner, shall be in the classified service of the state . . . .” When § 3709.13 expressly carves the commissioner out of the classifi ed service, it implies that all other board employees are classified, includi ng the medical director. The health district counters this interpretation by argu ing that because medical direct ors hold responsibilities that physician commissioners otherwise w ould have, they too should be ca rved out of th e classified service. But this public-policy argument conflicts with § 3709.13’s express grant of civil-service protections to all health-district employees other than the commissioner . Thus, the health district has not shown that the contract was void as a matter of law. As for the facts, the jury saw the employ ment agreement and the health district’s harassment policy. It also heard testimony from witnesses involved in the investigation, the phone call to David, and the events surrounding Matu s’s discharge. In closing arguments, the health district told the jury that Matus’s call to David was retaliatory an d justified his discharge for “cause.” Matus, however, contended that the call to David was not retaliatory and thus there was no “cause” basis for his discharge. Reasonabl e minds could disagree, but the evidence wasNos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-14- such that the jury, after weighing it, could find a breach of contract. The district court properly denied the health district’s motion for JMOL. Ohio State-Law Retaliation Ohio law prohibits retaliation against an em ployee who “has made a charge, testified, assisted, or participated in any manner in any in vestigation, proceeding, or hearing under [Ohio’s civil-rights law.]” O.R.C. § 4112.02(I). Ohio follows the McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973), framework for establishi ng prima facie cases of unlawful retaliation. Greer-Burger v. Temesi , 879 N.E.2d 174, 180 (Ohio 2007). To es tablish a prima facie case, a plaintiff must show that (1) he engaged in a pr otected activity, (2) the defendant was aware that he engaged in that activity, (3 ) the employer took an adverse em ployment action against him, and (4) there was a causal connection between the protected activity and adverse action. Id. This prima facie case may be rebutted by the empl oyer’s proffer of a legitimate, non-retaliatory reason for the adverse action, sh ifting the burden to the employee to show that the proffered reason was not the true reason. Id. (citations omitted). The health district focuses on the phone call to David both to attack Matus’s prima facie case and to rebut it. It argues that Matus’s call to David was not “protected activity” because Matus was not participating in an “investigation, ” and that Matus was fired because the call was retaliatory toward Charles, in violation of its policy. On this point too the JMOL motion fails. The jury heard testimony that when Matus called David, the investigation was still open and the parties expected that Ma tus would appear before the board in connection w ith it. Matus testified that he had been unable to obta in information about the investig ation, was anxious about being unprepared when he appeared be fore the board, and contacted Da vid not to retaliate against Charles, but rather to prepare. Hearing this evid ence and the accounts of the conversation, theNos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-15- jury was free to find that (1) Matus participated in the investigation by seeking information about it, (2) that the health district knew he sought th is information, and (3) that the health district ultimately terminated his employment because he did so. Further, the jury heard sufficient evidence to reject the health dist rict’s explanation that it believed that Matus’s call to David was itself retaliatory and thus grounds for his discharge. B. Motion for a New Trial We review the denial of a motion fo r a new trial for abuse of discretion. Duncan v.
Duncan , 377 F.2d 49, 53 (6th Cir. 1967). A district court must deny such a motion “if the verdict is one which could reasonably have been reached, and the verdict should not be considered unreasonable simply because different inferences and conclusions could have been drawn or because other result s are more reasonable.” J.C. Wyckoff & Assocs., Inc. v. Standard
Fire Ins. Co. , 936 F.2d 1474, 1487 (6th Cir. 1991). The health district’s arguments in support of the motion for a new trial are the same as for the motion for JMOL, as is the result. Matus stated proper claims for breach of contract and retali ation and the jury’s verdicts were supported by sufficient evidence. Thus, the district court did not abuse its discre tion in denying the motion. C. Remittitur Both the health district and Matus raise issues on appeal regarding remittitur, and we address them together. We review the denial of a motion for remittitur for abuse of discretion. Smith v. John Swafford Furniture Co., Inc. , 614 F.2d 552, 553 (6th Cir. 1980). We review questions of law de novo. In re Town Center Flats, LLC , 855 F.3d 721, 724 (6th Cir. 2017). Because the amount of damages in a persona l-injury action “is a matter within the province of the jury,” Carter v. Simpson , 476 N.E.2d 705, 708 (Ohio Ct. App. 1984), remittitur is proper only “if the jury’s award is so excessive as to appear to be th e result of passion orNos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-16- prejudice, or if the amount awarded is agai nst the manifest weight of the evidence.” Menda ex rel. Justin v. Springfield Radiologists, Inc. , No. 2001-CA-91, 2002 WL 31761562, at *2 (Ohio Ct. App. Dec. 6, 2002). Awards may also “be altered as a matter of law .” Arbino v. Johnson & Johnson , 880 N.E.2d 420, 431 (Ohio 2007) (emphasis in original). Ohio law places a statutory cap on non-economic damages for most torts. Under O.R.C. § 2315.18(B)(2), these awards are limited to $250,000, or three times economic loss (to a $350,000 maximum per plaintiff); O.R.C. § 2315.18(F)(1) deprives Ohio courts of jurisdictio n to enter judgments in excess of statutory
caps. The district court granted the health district’s remittitur motion and applied § 2315.18(B)(2) to reduce the jury’s $1,000,000 non-ec onomic-damages award on the retaliation claim to $250,000. The health district argues that was still too much, because the “record was devoid of any evidence of inta ngible emotional loss to justify a large non-economic award.” Appellant’s Br. at 47. We disagree. The jury heard te stimony from Matus a bout the substantial negative physical and emotional effects he suffered from the h ealth district’s retaliation. Although non-economic damages were supported onl y by Matus’s testimony, the district court did not abuse its discretion in rejecting the argu ment that the jury’s award was the result of passion or prejudice or against the manifest weight of the evidence. The health district also argues that the tort award was imprope rly duplicative of the contract award. In support of th is argument, it cites authority that a contract claim generally cannot also be recast as a tort claim. See, e.g., Wolfe v. Continental Cas. Co. , 647 F.2d 705, 710 (6th Cir. 1981) (“The still valid rule of Ketcham v. Miller , []136 N.E. 145 ([Ohio] 1922), forbids parties to convert contract acti ons into tort actions by attacki ng the motives of a breaching party, as the motive of a breaching party is irrelevant to a cont ract action.”). But th is line of cases isNos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-17- inapposite. Ketcham held that the allegedly wrongfully ev icted tenants’ complaint stated a claim only for breach of their lease—not for a tort—and thus they could not obtain punitive damages. Ketcham , 139 N.E. at 146. Wolfe was a statute-of-limitations case dealing with an insurer’s badfaith refusal to settle and the insureds’ suit fo r the resulting out-of-pocke t costs not covered by their policy limit. In that case, we observed that “Ohio courts w ould view actions to recover an amount in excess of policy limits as arising excl usively in tort, unless the insurance contract expressly delineates a standard of conduct by whic h the lawyering of the insurance company can be measured.” Wolfe , 647 F.2d at 709. Contrary to the health district’s argument, these cases recognized that a set of facts can support both a breach-of-contract and a tort claim. Here, Matus’s tort claim is based on Oh io’s statutory prohibition on re taliation against employees who engage in certain protected activities, including participating in investigations. O.R.C. § 4112.02(I); cf. also Helmick v. Cincinnati Word Processing, Inc. , 543 N.E.2.d 1212, 1215 (Ohio 1989) (reversing summary j udgment to employer on employ ee’s breach-of-contract and common-law tort claims). Additionally, the health district ’s argument that the jury awarded duplicative damages is not supported by the record. The district court in structed the jury that economic damages for the breach-of-contract and the retaliation claims w ould be the same and could not be duplicated. After the close of evidence, the di strict court presented draft jury instructions to the parties. Neither objected to its plan to instruct th e jury to avoid duplica tive economic damages. The jury followed this instruction. It found th at the health district breached the contract and awarded Matus $365,175.18 in economic damages. It also found that the health district unlawfully retaliated, and on that count it awarded Matus $1,000,000 in non-economic damages, but $0 in economic damages. These aw ards are clearly not duplicative.Nos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-18- Matus cross-appeals the district court’s application of O.R.C. §§ 2315.18(B)(2) and (F)(1) to remit the $1,000,000 non-economic award. He argues, relying on the phrase “[a] court of common pleas has no ju risdiction to enter judgment . . . in excess of [§ 2315.18’s] limits,” that the caps set out in § 231 5.18 do not apply in federal court, but rather only in the Ohio courts of common pleas. Here, the district court sat in diversity and properly followed the substantive law applicable in Ohio courts. See Palmer v. Fox Software, Inc. , 107 F.3d 415, 418 (6th Cir. 1997). In the alternative, Matus argues that even if §§ 2315.18(B)(2) and (F)(1) apply, the proper remitted amount is $350,000, not $250,000. The he alth district responds that a different statute, which caps non-economic damages agai nst “political subdivisions” at $250,000, is applicable, O.R.C. § 2744.05(C)(1). It is not certain whether “g eneral health districts” are “political subdivisions” under this statute. Cf. id. at § 2744.01(F) (defining “political subdivision”). But, in any event, this statut e states that it does not apply to actions by an employee “relative to any matter that arises ou t of the employment re lationship between the employee and the political subdivision.” Id. at § 2744.09(B). Thus, the district court properly turned to §§ 2315.18(B)(2) and (F)(1). The $365,175.18 in economic damages allocated to the contract claim applied to the retaliation claim as well because the jury found for Matus on both claims and the district court instructed the jury that the economic damages would be the same for both claims and should not be duplicated. Thus, the properly remitted non-economi c-damages award is $350,000 because the statute allows up to three tim es the economic damages as non-economic damages (here, $1,095,525.54), subject to a $350,000 maximum. We therefore vacate this portion of the judgment and remand to the district cour t for entry of a $350,000 judgment on Count 2.Nos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-19- D. Summary Judgment Matus cross-appeals the grant of summary judgment on his hostile-work-environment, IIED, and First Amendment retaliation claims. We review the grant of summary judgment de

novo. Gillis v. Miller , 845 F.3d 677, 683 (6th Cir. 2017). Su mmary judgment is appropriate when the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Because the jury awarded Matus his full ec onomic and non-economic damages, we need not address his hostile-work-e nvironment and IIED claims. See Polk v. Yellow Freight Sys., Inc. , 876 F.2d 527, 534 n.1 (6th Cir. 1989). We consider his First Amendment retaliation claim, however, because it carries the added potential for attorney fees under 42 U.S.C. § 1988(b). A plaintiff establishes a prim a facie case of First Amendmen t retaliation when he shows that (1) he engaged in activity protected by the First Amendment, (2) he suffered an adverse action that would likely chill a pe rson of ordinary firmness from continuing to engage in the protected activity, and (3) the a dverse action was at least in pa rt motivated by the protected activity. Leary v. Daescher , 228 F.3d 729, 737 (6th Cir. 2000) (citation omitted). Public employees’ speech is protected by the First Amendment when they speak as citizens addressing matters of public concern. Weisbarth v. Geauga Park Dist. , 499 F.3d 538, 542 (6th Cir. 2007). However, when they “make statements pursuant to their official duties” they do not speak “as citizens fo r First Amendment purposes.” Garcetti v. Ceballos , 547 U.S. 410, 421 (2006). Matus argues that he was re taliated against due to his brother-in -law’s opposition to Pearce’s retire/rehire plan, and that this cons tituted First Amendment retaliation. He lacksNos. 16-4054/16-4094, Matus v. Lorain Cty. Gen. Health Dist., et al.

-20- standing, however, to assert that he was retalia ted against for his brother-in-law’s speech. Moody v. Michigan Gaming Control Bd. , 847 F.3d 399, 402 (6th Cir. 2017). He also argues that he was directly retaliat ed against for criticizing the competence of the board and its investigation dur ing his January 11 meeting with Spreng, Covell, and Innes. However, these comments were made in the cour se of Matus’s official employment and thus cannot give rise to a First Amendment retaliation claim. Garcetti , 547 U.S. at 421. The district court did not err in granting summary judgment on this claim.
III For the foregoing reasons, we VACATE the judgment of the district court and REMAND with instructions to enter judgment, and fo r further proceedings, consistent with this opinion. We AFFIRM in all other respects.