Ewing v. Lucas County Department of Job and Family Services
Filing
37
Memorandum Opinion and Order 27 deft's second Motion for judgment on the pleadings filed by Lucas County Department of Job and Family Services is granted. [16-moot] Magistrate Judge Vernelis K. Armstrong on 12/5/12. (B,CJ)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Dianne Ewing,
:
:
:
:
:
:
:
:
:
Plaintiff,
v.
Lucas County Department of Job,
and Family Services
Defendant,
Case No. 3:12-CV-743
MEMORANDUM AND
ORDER
I. INTRODUCTION
Plaintiff Dianne Ewing (“Plaintiff”) seeks money damages, reinstatement, and liquidated
damages resulting from an alleged unlawful termination of employment (Docket No. 19). Plaintiff
seeks relief for alleged violations of due process, equal protection, and Title VII of the Civil Rights
Act of 1964 (42 U.S.C. § 2000e), as well as state law defamation and invasion of privacy claims
(Docket No. 19). Pending is Defendant Lucas County Department of Job and Family Services’
(“Defendant” or “JFS”) Second Motion for Judgment on the Pleadings, filed September 24, 2012
(Docket No. 27), Plaintiff’s Opposition, filed October 22, 2012 (Docket No. 31), and Defendant’s
Reply, filed November 25, 2012 (Docket No. 35). For the reasons that follow, Defendant’s Motion for
Partial Judgment on the Pleadings is granted.
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II. FACTS
Plaintiff is a Caucasian individual and citizen of the United States and a resident of the City of
Toledo (Docket No. 19, p. 2 of 9; No. 27, p. 5 of 29). She was employed by Defendant as an Eligibility
Specialist 2 (“Eligibility Specialist”) until her discharge on or about April 1, 2011 (Docket No. 19, p. 2
of 9). Defendant is a department within the governmental structure of Lucas County, Ohio, under the
authority of the Lucas County Board of County Commissioners (Docket No. 19, p. 2 of 9). Defendant
provides services to families throughout Lucas County including temporary cash assistance, food
stamps, subsidized child care, adult protection, disability assistance and prevention, retention and
contingency services, and medical assistance (Docket No. 19, p. 2 of 9). Plaintiff alleges that
Defendant accused her of dishonesty, failure of good behavior, and malfeasance and subsequently
terminated her employment (Docket No. 19, p. 3 of 9). Plaintiff also alleges that Defendant failed to
conduct an adequate investigation into the charges against her prior to terminating her employment
(Docket No. 19, p. 3 of 9). As a result of her termination, Plaintiff claims she has suffered the loss of
back wages, retirement and pension benefits, and has suffered great mental and emotional stress,
anxiety, humiliation, and embarrassment (Docket No. 19, p. 3 of 9).
III. PROCEDURAL HISTORY
On May 4, 2011, Plaintiff filed a charge of discrimination with the Ohio Civil Rights
Commission and Equal Employment Opportunity Commission (“EEOC”), charge number 22A-201102292C (Docket No. 19, Attachment 1). On March 13, 2012, the District Director of the EEOC
notified Plaintiff of her right to file suit in an appropriate federal district court within ninety (90) days
(Docket No. 19, Attachment 2). On March 27, 2012, Plaintiff filed a Complaint in the United States
District Court for the Northern District of Ohio, Western Division, alleging unlawful termination and
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seeking money damages, reinstatement, and liquidated damages (Docket No. 1). Plaintiff’s Complaint
also set forth state law claims alleging defamation and invasion of privacy (Docket No. 1). On June 21,
2012, both parties consented to the jurisdiction of the undersigned Magistrate in accordance with the
provisions of 28 U.S.C. § 636(c) and FED. R. CIV. P. 73, agreeing to have the undersigned Magistrate
conduct any and all further proceedings in the case, including trial and the entry of final judgment
(Docket No. 13). Defendant filed its Answer on July 3, 2012, denying Plaintiff’s allegations and
setting forth multiple affirmative defenses (Docket No. 15).
On July 6, 2012, Defendant filed its First Motion for Judgment on the Pleadings under FED. R.
CIV. P. 12(c), requesting dismissal of Plaintiff’s entire Complaint (Docket No. 16). Plaintiff filed her
Opposition on August 2, 2012 (Docket No. 18). On that same date, Plaintiff filed her First Amended
Complaint (Docket No. 19).1 Defendant filed its Answer to the First Amended Complaint on
September 22, 2012 (Docket No. 25). Two days later, Defendant filed its Second Motion for Judgment
on the Pleadings under FED. R. CIV. P. 12(c), requesting dismissal of Plaintiff’s entire Amended
Complaint (Docket No. 27). Plaintiff filed her Opposition to Defendant’s Second Motion on October
22, 2012 (Docket No. 31). Defendant filed its Reply on November 12, 2012 (Docket No. 35).
IV. STANDARD OF REVIEW
This Court set forth the standard of review for a motion under FED. R. CIV. P. 12(c) in EEOC v.
Faurecia Exhaust Sys., 601 F.Supp.2d 971 (N.D. Ohio 2008):
Under Rule 12(c), a party may move for judgment on the pleadings any time after the
pleadings are closed but early enough not to delay trial. The standard of review for a
motion for judgment on the pleadings is the same as for a motion to dismiss for failure to
state a claim for relief under Rule 12(b)(6). EEOC v. J.H. Routh Packing Co., 246 F.3d
1
It should be noted that Plaintiff’s filing of her First Amended Complaint rendered her
original Motion for Judgment on the Pleadings moot.
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850, 851 (6th Cir. 2001) (citing Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998)).
For purposes of a motion for judgment on the pleadings, all well-pleaded material
allegations of the pleadings of the opposing party must be taken as true, and the motion
may be granted only if the moving party is nevertheless clearly entitled to judgment.
JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (quoting
Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th
Cir. 1973)). The district court, however, need not accept as true legal conclusions or
unwarranted factual inferences. Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999) (citing
Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). The motion is
granted when no material issue of fact exists and the party making the motion is entitled
to judgment as a matter of law. Paskvan v. City of Cleveland Civil Serv. Comm’n, 946 F.2d
1233, 1235 (6th Cir. 1991).
601 F.Supp.2d at 973 (internal quotations omitted).
V. ANALYSIS
A.
DEFENDANT’S ALLEGATIONS
In its Memorandum in Support for its Second Motion for Judgment on the Pleadings,
Defendant alleges that it is entitled to judgment as a matter of law because Plaintiff’s First Amended
Complaint fails to properly assert: (1) a due process or equal protection cause of action under 42
U.S.C. § 1983; (2) a claim pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e;
and (3) a claim pursuant to O.R.C. § 4112.02(A) (Docket No. 27, p. 2 of 9). Defendant also alleges that
it is entitled to judgment as a matter of law because: (1) Plaintiff’s employment was actually
terminated by the Lucas County Board of County Commissioners (“BCC”), a non-party; (2) Defendant
is immune from liability for the state law claims of defamation and invasion of privacy pursuant to
O.R.C. § 2744.02; (3) the state law defamation claim is barred by privilege; and (4) the state law
invasion of privacy claim is barred because Defendant did not publicize the matter and Plaintiff’s
termination was a matter of legitimate public concern (Docket No. 27, p. 2 of 9).
B.
PLAINTIFF’S RESPONSE
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In her Opposition, Plaintiff asserts she has fulfilled her obligation to set forth sufficient factual
allegations which, when taken as true, establish the essential elements of her claims (Docket No. 31,
pp. 1-2 of 15). Specifically, Plaintiff alleges: (1) it was Defendant, not the BCC, that terminated her
employment; (2) her § 1983 claims have sufficient factual content to support claims that are plausible;
and (3) her due process, equal protection, defamation, and invasion of privacy claims are all properly
alleged (Docket No. 31).
C.
DISCUSSION
1.
PROPER PLEADINGS
Under FED. R. CIV. P. 8(a), a complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Traditionally, a complaint needed only to “give the
defendant fair notice of what the plaintiff’s claim [was] and the grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47 (1957). Under Conley, “a complaint should not be dismissed for failure to
state a claim unless it appear[ed] beyond doubt that the plaintiff [could] prove no set of facts in support
of his claim which would entitle him to relief.” Id. at 46-47 (emphasis added).
In 2007, the Supreme Court altered this traditional construction in Bell Atlantic Corp. v.
Twombly, (550 U.S. 544 (2007)). In Twombly, the Court held that, while a complaint does not need to
contain detailed factual allegations, “a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do . . . Factual allegations must be enough to raise a right to
relief above the speculative level.” 550 U.S. at 555. The Court specifically denied requiring a
heightened fact pleading; rather, a complaint must contain “enough facts to state a claim for relief that
is plausible on its face.” Id. at 570 (emphasis added).
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The Court further explained this plausibility requirement in Ashcroft v. Iqbal, (556 U.S. 662
(2009)):
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain
statement of the claim showing that the pleader is entitled to relief.’ As the Court held in
Twombly . . . the pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation. A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the
elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.
Iqbal, 556 U.S. at 677-78 (internal citations omitted). The level of factual detail needed to make a
claim plausible varies with the complexity of the claim. Id. Under Iqbal, determining whether a
complaint states a plausible claim for relief “is a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Id. at 679; see also Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 232 (3d Cir. 2008); Swanson v. Citibank, N.A., 614 F.3d 400, 404-05 (7th
Cir. 2010); Robbins v. Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1246 (10th Cir. 2008).
Prior to Twombly and Iqbal, the specific elements of a claim were not important: the focus was
on whether the pleading gave fair notice of the claim asserted. See 2-8 Moore’s Federal Practice - Civil
§ 8.04(1)(a) (2012). In Swierkiewicz v. Sorema N.A. (534 U.S. 506, 510-12 (2002)), the Supreme Court
rejected the notion that courts should measure a pleading’s accuracy by the elements of the claims
asserted. This standard was called into question by the 2005 case Dura Pharmaceuticals, Inc. v.
Broudo (544 U.S. 336 (2005) (Supreme Court held that a plaintiff must plead factual allegations of a
specific element of securities fraud, namely that the defendant’s fraud caused an economic loss).
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However, “regardless of whether a pleading needs to provide factual support for every element of a
claim in order to provide fair notice, . . . the analysis of whether a pleading states a ‘plausible’
claim . . . begins with an analysis of the elements of the claim.” 2-8 Moore’s Federal Practice - Civil §
2.08(1)(c) (emphasis added).
2.
PROPER PARTY
According to Defendant, Plaintiff’s entire Amended Complaint must be dismissed due to one
fatal error: Plaintiff filed suit against the wrong party (Docket No. 27, p. 8 of 29). In its Second Motion
for Judgment, Defendant claims that it did not have the power to terminate Plaintiff’s employment;
rather, Defendant’s director could merely recommend Plaintiff’s termination, the ultimate decision
belonging to the BCC (Docket No. 27, p. 8 of 9). Defendant argues that the “board of county
commissioners is the appointment authority for employees of a county department of job and family
services. The commissioners hire and terminate, upon the recommendation of the director of the
department, employees of the department of job and family services and fix[] compensation and
benefits” (Docket No. 27, p. 9 of 29). Defendant is correct only in its description of the
Commissioner’s duties.
Under Ohio law, in every county, “there shall be a county department of job and family
services.” R.C. § 329.01. This department is charged with carrying out a variety of duties including,
but not limited to, those assigned by the state, administering disability financial assistance and burials,
determining individual eligibility for medical assistance for both adults and children, and establishing
transportation procedures. R.C. § 329.04(A)(1)-(11). While tasked with these responsibilities, the
department operates under the control and direction of the BCC. R.C. § 329.04(B).
With regard to employment, the BCC is responsible for appointing a county director of JFS.
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R.C. § 329.01. This director, with the approval of the BCC, “shall appoint all necessary assistants and
superintendents of institutions under the jurisdiction of the department, and all other employees of the
department.” R.C. § 329.02. Although the statute says nothing about who has the power to terminate
employees, it stands to reason that if the BCC, upon the recommendation of the director, possesses the
final approval to hire employees, it also possesses, upon the recommendation of the director, the final
approval to terminate them as well.
Therefore, Defendant argues, Plaintiff’s termination was only recommended by JFS; it was
made official and final by the BCC (Docket No. 27, pp. 8-10 of 29). The BCC, then, is the proper
defendant (Docket No. 27, pp. 8-10 of 29). After examining the statutory and case law, this Magistrate
only partially agrees.
Under Ohio case law, R.C. § 329.02
give[s] the board of county commissioners and the welfare director reciprocal rights and
responsibilities with relation to the appointment and removal of employees. Although the
director has power to appoint, and thus to remove, employees, his authority is restricted in
that it may be exercised only with the approval of the board. Likewise any implied
authority that the board of county commissioners might have to appoint or remove would
have to be carried out through the director under the provision that he shall have full charge
of the county department of welfare under the control and direction of the board of county
commissioners.
Abbott v. Myers, 20 Ohio App.2d 65, 71 (Ohio Ct. App. 1969). This suggests that neither JFS nor the
BCC are independent authorities when it comes to human resource matters within the department.
Even more telling is the Supreme Court of Ohio’s holding in Wilson v. Stark Cnty. Dep’t of
Human Servs. et al., 70 Ohio St. 3d 450 (Ohio 1994). In Wilson, the plaintiff’s sued not only the Stark
and Seneca County Departments of Human Services but also the Stark and Seneca County Boards of
County Commissioners for fraud, intentional or reckless infliction of emotional distress, and breach of
contract. Wilson, 70 Ohio St. 3d at 450. All defendants moved for summary judgment, which the trial
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court granted. Id. The Stark County Court of Appeals affirmed in part the trial court’s ruling, but
reversed the judgment in favor of the departments of human services. Id. The plaintiff’s appealed. Id.
On appeal, the Ohio Supreme Court held that
[I]n an action against its department of human services, the county is a real party in
interest. A claim against a county department of human services, then, is in effect a claim
against the county itself. To allow such a claim arising from the performance of a
governmental function would frustrate the purpose of the statute. The burdens imposed by
litigation and damage awards ultimately fall upon the same county resources regardless of
whether the nominal defendant is the county board of commissioners or the county
department of human services.
Id. at 453 (internal citations omitted).
Based on both the statutes governing the BCC and JFS as well as the aforementioned case law,
this Magistrate finds that the BCC is indeed a proper party to Plaintiff’s Complaint. However, that
being said, this Magistrate also finds that, much like the Ohio Supreme Court stated in Wilson, the
BCC is not the only proper party. In fact, under the authority of Wilson, it is irrelevant who Plaintiff
names in her suit: the result is the same whether the nominal defendant is the BCC or JFS. Therefore,
Defendant’s assignment of error, alleging that it cannot be held responsible for Plaintiff’s termination
because Plaintiff was actually terminated by the BCC, a non-party, is without merit.
3.
Due Process Claim
Plaintiff claims a violation of due process, alleging Defendant failed to conduct an adequate
investigation into the charges against Plaintiff prior to terminating her and that such a practice is a
policy and/or custom of Defendant (Docket No. 19, p. 3 of 9). Defendant argues that such allegations,
even if true, are not sufficient to establish a § 1983 claim.
To determine whether a plaintiff’s due process rights have been violated, a court must
undertake a two-step analysis. Leary v. Daeschner, 228 F.3d 729, 741 (6th Cir. 2000). First, a court
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must determine whether a plaintiff has a property interest that entitles him to due process protection.
Id. In cases of unlawful termination, this property interest has been identified as continued
employment. Gregory v. Hunt, 24 F.3d 781, 784-85 (6th Cir. 1994) (citing Bishop v. Wood, 426 U.S.
341, 344 (1976)). Second, if the court determines that there is such an interest, it must determine what
process is due. Leary, 228 F.3d at 742.
Plaintiff’s First Amended Complaint fails to set forth any facts that, if true, would create a
property interest in Plaintiff’s continued employment with Defendant (Docket No. 19). Plaintiff makes
no claim or allegation that she was anything but an at-will employee (Docket No. 19). “An at-will
public employee does not have a property interest in continued employment unless it can be shown
that the employee had a reasonable expectation that termination would only be for good cause.”
Gregory, 24 F.3d at 785 (citing Chilingirian v. Boris, 882 F.2d 200, 203 (6th Cir. 1989)). Here,
Plaintiff merely states that Defendant has denied her due process of law (Docket No. 19, p. 3 of 9).
This statement is nothing more than a legal conclusion; under FED. R. CIV. P 12(c), this court “need not
accept as true legal conclusions or unwarranted factual inferences.” Faurecia Exhaust, 601 F.Supp.2d
at 973. Therefore, Plaintiff’s First Amended Complaint fails to properly allege a § 1983 claim against
Defendant on this basis alone.
Furthermore, Plaintiff fails to set forth sufficient factual allegations showing that Defendant
failed to provide Plaintiff adequate notice prior to her termination. The due process clause requires an
employer, prior to termination, to provide a public employee: (1) oral or written notice of the charges
against him; and (2) an explanation of the employer’s evidence and an opportunity for the employee to
present his side of the story. See Buckner v. Highland Park, 901 F.2d 491, 494 (6th Cir. 1990) (citing
Loudermill v. Cleveland Bd. of Educ., 844 F.2d 304, 310 (6th Cir. 1988)). Plaintiff does not allege that
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Defendant failed to give her oral or written notice of the charges against her or an explanation of
Defendant’s evidence against her (Docket No. 19). Neither does Plaintiff allege that Defendant denied
her the opportunity to present her side of the story (Docket No. 19). Without such basic information,
Plaintiff has failed to properly state a claim to relief that is plausible on its face. Therefore, Defendant
is entitled to judgment as a matter of law on Plaintiff’s § 1983 due process claim and said claim is
dismissed.
4.
Equal Protection Claim: Reverse Discrimination
Plaintiff’s First Amended Complaint asserts a claim of “reverse” racial discrimination under
Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) and under O.R.C. § 4112.02(A) (Docket
No. 19). Defendant argues that Plaintiff failed to properly allege this claim and, as a result, the claim
should be dismissed (Docket No. 27, pp. 12-16 of 29).
To allege a prima facie case of Title VII discrimination in a typical case, a plaintiff must assert
that she: (1) is a member of a protected class; (2) was qualified for the job; (3) suffered an adverse
employment decision; and (4) was replaced by a person outside the protected class or was treated
differently than similarly situated non-protected employees. Newman v. Fed. Express Corp., 266 F.3d
401, 406 (6th Cir. 2001). In a reverse discrimination case, where a member of a racial majority alleges
racial discrimination, the first and fourth prongs of the test are different. Sutherland v. Michigan Dep’t
of Treasury, 344 F.3d 603 (6th Cir. 2003). Under the first prong, the plaintiff “must demonstrate
background circumstances to support the suspicion that the defendant is that unusual employer who
discriminates against the majority.” Id. at 614 (citing Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249,
255 (6th Cir. 2002)). To satisfy this prong, a plaintiff may present evidence of the defendant’s
unlawful consideration of race in prior employment decisions (Sutherland, 344 F.3d at 615), evidence
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that the person responsible for the employment decision was a minority (Zambetti, 314 F.3d at 257), or
evidence of ongoing racial tension in the workplace (Boger v. Wayne Cnty., 950 F.2d 316, 324-25 (6th
Cir. 1991). To satisfy the fourth prong, the plaintiff “must show that the defendant treated differently
employees who were similarly situated but were not members of the protected class.” Sutherland, 344
F.3d at 614.
According to Plaintiff, Defendant denied her equal protection “when it followed a custom
and/or policy of inadequately investigating serious charges against Plaintiff before terminating her
employment” (Docket No. 19, p. 4 of 9). She also alleges that “similarly situated employees of other
races were treated more favorably . . . and were either disciplined in a less severe manner or were
permitted to return to work” (Docket No. 19, p. 4 of 9). This claim is nothing more than a bare
assertion of reverse racial discrimination: Plaintiff fails to elaborate or provide any examples of
Defendant’s “custom and/or policy” of reverse racial discrimination (Docket No. 19). Plaintiff even
admits in her Opposition that any additional proof is not available to her at this pleading stage (Docket
No. 31, p. 8 of 15). The question thus becomes how, then, does Plaintiff even know that Defendant has
such a custom or policy? Motion pleading does not require solid evidence, such as what would be
revealed during discovery, of a plaintiff’s claim; however, a complaint will not suffice if it simply
“tenders naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 677-78 (internal
citations omitted).
Without such basic information, Plaintiff has failed to properly state a claim to relief that is
plausible on its face. Therefore, Defendant is entitled to judgment as a matter of law on Plaintiff’s
§ 1983 equal protection claim and said claim is dismissed.
5.
STATE LAW CLAIMS
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a.
POLITICAL SUBDIVISION IMMUNITY
According to Defendant, it is immune from liability for Plaintiff’s state law claims of
defamation and invasion of privacy under R.C. § 2744.02 (Docket No. 27, p. 16 of 29). Plaintiff
disagrees (Docket No. 31, pp. 9-11 of 15).
Under R.C. §2744.02(A)(1), “a political subdivision is not liable in damages in a civil action
for injury, death, or loss to person or property allegedly caused by any act or omission of the political
subdivision or an employee of the political subdivision in connection with a governmental or
proprietary function.” There are five exceptions to this immunity: (1) negligent operation of a motor
vehicle by an employee of the political subdivision when the employee is engaged within the scope of
his employment and authority; (2) negligent performance of acts by employees of the political
subdivision with respect to proprietary functions of the political subdivision; (3) negligent failure to
keep public roads in repair and remove obstructions from public roads; (4) negligence of employees
that occurs within or on the grounds of, and is due to physical defects within or on the grounds of,
buildings that are used in conjunction with the performance of a governmental function; and (5) when
civil liability is expressly imposed upon the political subdivision by another section of the Ohio
Revised Code. R.C. §2744.02(B)(1)-(5).
According to Defendant, Plaintiff’s failure to allege any of the statutory exceptions to the
general rule of political subdivision immunity requires this Court to dismiss Plaintiff’s claims for
defamation and invasion of privacy (Docket No. 27, p. 18 of 29). This Magistrate does not agree.
Section § 2744.02(A) applies to civil actions brought by any party, not just an employee of the
political subdivision. R.C. § 2744.02(A)(1); see also Buck v. Vill. of Reminderville, 2010 Ohio 6497,
*P13 (Ohio Ct. App. 2010), aff’d, 132 Ohio St.3d 24 (Ohio 2012) (in an action for defamation by the
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chief of police against the municipality, the court found that, in actions for an intentional tort between
employer and employee, it is R.C. § 2744.09(B) that applies). R.C. § 2744.09(B) states that Chapter
2744 does not apply to “civil actions by an employee, . . . against his political subdivision relative to
any matter that arises out of the employment relationship between the employee and the political
subdivision.” Therefore, the question that must be answered to determine political subdivision
immunity in this case is whether the intentional torts of defamation and invasion of privacy are matters
that arise out of the employment relationship between the parties.
In Blankenship et al. v. Cincinnati Milacron Chems., Inc., et al., 69 Ohio St.2d 608 (Ohio
1982), the Supreme Court of Ohio held “no reasonable individual would equate intentional and
unintentional conduct in terms of the degree of risk which faces an employee nor would such
individual contemplate the risk of an intentional tort as a natural risk of employment. Since an
employer’s intentional conduct does not arise out of employment, R.C. 4123.74 does not bestow upon
employers immunity from civil liability for their intentional torts and an employee may resort to a civil
suit for damages.” 69 Ohio St. 2d at 613. Although Blankenship dealt with intentional torts and
employer immunity within the context of workers compensation under R.C. § 4123.74, the same logic
has been applied to intentional torts and employer immunity under R.C. § 2744.09(B). In Buck, supra,
the Court of Appeals of Ohio held:
Section 2744.09(B) is designed to allow political subdivision employees to recover against
their employers, who would otherwise be entitled to immunity under Chapter 2744 of the
Ohio Revised Code. If intentional torts were not within the scope of Section 2744.09(B)’s
immunity exclusion, it would be, as the Ohio Supreme Court explained in Blankenship,
‘tantamount to encouraging such [intentionally tortious] conduct. Blankenship v. Cincinnati
Milacron Chems. Inc., 69 Ohio St. 2d 608, 614 (1982). ‘Affording an employer immunity
for his intentional behavior certainly would not promote [a safe work] environment, for an
employer could commit intentional acts with impunity.’ Id. at 615.
2010 Ohio at *P11.
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This Court finds that political subdivision immunity does not apply to Defendant in this case
and Defendant is not entitled to judgment as a matter of law for Plaintiff’s state law claims on this
basis alone. This Court must therefore determine whether Plaintiff has sufficiently pled, at least
enough to withstand a Rule 12(c) motion, her state law claims of defamation and invasion of privacy
under FED. R. CIV. P. 8(a).
b.
DEFAMATION
In order to maintain an action for defamation, Ohio law requires a plaintiff to prove: “(1) a
false and defamatory statement; (2) about plaintiff; (3) published without privilege to a third party; (4)
with fault of at least negligence on the part of the defendant; . . . (5) that was either defamatory per se
or caused special harm to the plaintiff.” Gosden v. Louis, 116 Ohio App.3d 195, 206 (Ohio Ct. App.
1996). There are two kinds of defamation: defamation per se and defamation per quod. Id. at 207.
Defamation per se occurs when “material is defamatory on its face.” Id. Defamation per quod occurs
when “material is defamatory through interpretation or innuendo.” Id.
Even if a plaintiff establishes a prima facie case of defamation, a defendant cannot be held
liable if a privilege exists. Hahn v. Kotten, 43 Ohio St.2d 237, 243 (Ohio 1975). A “qualified” or
“conditional” privilege is “recognized in many cases where the publisher and the recipient have a
common interest, and the communication is of a kind reasonably calculated to protect or further [that
interest].” Id. at 244. Generally a statement is privileged when the publisher: (1) acts in good faith; (2)
has an interest to uphold; (3) limits the statement in its scope to the purpose of upholding that interest;
(4) makes the statement on a proper occasion; and (5) publishes the statement in a proper manner and
only to proper parties. Mosley v. Evans, 90 Ohio App.3d 633, 636 (Ohio App. Ct. 1993) (citing Hahn,
43 Ohio St.2d at 246).
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A plaintiff can overcome a privilege only by proving, with clear and convincing evidence, that
the actionable language was motivated by actual malice. Jacobs v. Frank, 60 Ohio St.3d 111, 114
(Ohio 1991). Actual malice is defined as “acting with knowledge that the statements are false or acting
with reckless disregard as to their truth or falsity.” Id. at 116.
1.
DEFAMATORY STATEMENT
According to Plaintiff, Defendant falsely accused her of “dishonesty, failure of good behavior
and malfeasance” (Docket No. 19, p. 4 of 9). Defendant then published these allegedly false
accusations to its employees “who did not have a need to know” on or after March 29, 2011 (Docket
No. 19, p. 5 of 9). Plaintiff also claims that the allegedly false accusations were intentionally published
on the internet, in full view of the public (Docket No. 19, p. 5 of 9). In its Answer to Plaintiff’s First
Amended Complaint, Defendant attached a copy of the alleged defamatory statement, the BCC’s
approval of Plaintiff’s termination, Resolution No. 11-320 (Docket No. 25, Attachment 1). The
Resolution states: “in accordance with Article 14 of the collective bargaining agreement, [Plaintiff],
Eligibility Specialist 2, is charged with dishonesty, failure of good behavior and malfeasance” (Docket
No. 25, Attachment 1).
Whether or not the content of the allegations against Plaintiff are true or false is not the issue.
In order to maintain a claim for defamation, a false statement must be communicated to a third party.
Therefore, it is the communication between Defendant and the BCC and the public that is at issue.
Plaintiff cannot deny that she was terminated for “dishonesty, failure of good behavior and
malfeasance” (Docket No. 19, p. 4 of 9). It is generally well established that a communication made in
good faith on a matter of common interest between an employer and an employee . . . is protected by
qualified privilege.” Davis, et al. v. City of Cleveland, et al., 2004 Ohio 6621, *P43 (Ohio App. Ct.
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2004). When Defendant’s director communicated to the BCC her recommendation for Plaintiff’s
termination and the reasons behind it, the director was, in fact, communicating a true statement. For
this reason alone, Defendant’s Motion for Judgment on the Pleadings with regard to Plaintiff’s
defamation claim must be granted.
2.
PRIVILEGE
Even if the alleged defamatory statement were false, Defendant’s Motion must still be granted
because of the applicability of privilege. It has long been understood that the defense of qualified
privilege applies “in a variety of situations where society’s interest in compensating a person for loss
of reputation is outweighed by a competing interest that demands protection.” Davis, et al. v. City of
Cleveland, et al., 2004 Ohio 6621, *P44 (Ohio App. Ct. 2004). Therefore, “the privilege does not
attach to the communication, but to the occasion on which it is made.” Id. (emphasis added). Based on
this definition, the occasion to which the privilege attaches is Defendant’s relay of the grounds of
Plaintiff’s discharge to the BCC.
Under Ohio law, “a publication is conditionally or qualifiedly privileged where circumstances
exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a
communication to a certain other person to whom he makes such communication in the performance of
such duty, or where the person is so situated that it becomes right in the interest of society that he
should tell [a] third person certain facts, which he in good faith proceeds to do.” Parry v. Mohawk
Motors of Mich., Inc., 236 F.3d 299, 313 (6th Cir. 2000); (quoting Miller v. Ohio Rehab. Servs.
Comm’n, 86 Ohio Misc.2d 97 (Ohio Ct. Cl. 1997). Here, Defendant had a duty to report Plaintiff’s
termination and the reasons for that termination in Resolution No. 11-320 to the BCC. See discussion
supra Part C.2. In turn, the BCC had a duty to pass this resolution at a public meeting.
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It is Plaintiff’s duty, then, to overcome the privilege by proving, with clear and convincing
evidence, that the actionable language was motivated by actual malice. Jacobs, 60 Ohio St.3d at 114.
Plaintiff alleges that Defendant acted with “reckless and wanton disregard of the truth [or] falsity of
the allegations” since Defendant failed to conduct an adequate investigation prior to her termination
(Docket No. 19, p. 5 of 9). Furthermore, according to Plaintiff, Defendant was motivated by a
“vendetta to procure her termination” (Docket No. 19, p. 5 of 9). Again, Plaintiff merely sets forth the
legal conclusion that Defendant acted with “reckless and wanton disregard of the truth [or] falsity of
the allegations” (Docket No. 19, p. 5 of 9). This Court is not required to accept as true legal
conclusions. Faurecia, 601 F.Supp.2d at 973. Plaintiff has failed to plead any facts that, if true, would
constitute clear and convincing evidence that actionable language was motivated by actual malice.
Therefore, based on the pleadings, Plaintiff cannot defeat Defendant’s claim of qualified privilege and
Defendant is entitled to judgment as a matter of law with regard to Plaintiff’s defamation claim.
c.
INVASION OF PRIVACY
Under Ohio law, the tort of invasion of privacy consists of four distinct components: (1)
intrusion into the plaintiff’s seclusion, solitude, or private affairs; (2) public disclosure of embarrassing
private facts about the plaintiff; (3) publicity that places the plaintiff in a false light; and (4)
appropriation of the plaintiff’s name or likeness for the defendant’s advantage. Ghaster v. City of
Rocky River, 2010 U.S. Dist. LEXIS 71020, *25 (N.D. Ohio 2010) (citing Housh v. Peth, 165 Ohio St.
35, paragraph two of the syllabus (Ohio 1956)). From the pleadings, it appears Plaintiff alleges a claim
of invasion of privacy under both the public disclosure and the false light components (Docket No. 19,
p. 6 of 9).
1. PUBLICITY
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In order for Plaintiff to state a claim under the “publicity” tort of invasion of privacy, she must
allege that: (1) there was publicity, i.e. the disclosure must be of a public, not private, nature; (2) the
facts disclosed concerned her private, not public, life; (3) the matter publicized is one that “would be
highly offensive and objectionable to a reasonable person of ordinary sensibilities;” (4) the publication
was made intentionally, not negligently; and (5) the matter was not of legitimate concern to the public.
Ghaster, 2010 U.S. Dist. LEXIS at *25. Publicity requires a communication to the “public at large, or
to so many persons that the matter must be regarded as substantially certain to become one of public
knowledge.” Id. at *25-26.
It is clear from the facts pleaded that requirements one and four are satisfied. With regard to
requirement two, Plaintiff is a public servant working for a local government body. Any facts disclosed
about her employment deal with her public, not private life. Therefore, requirement two is not met.
With regard to requirement three, Plaintiff alleges that disclosure of the reasons for her termination is
offensive and objectionable to a reasonable person. Such a question is surely a matter for the finder of
fact. However, the claim cannot even get that far. Plaintiff merely offers a “formulaic recitation” of
one of the elements of invasion of privacy. Under Iqbal, this type of pleading is not enough to make
the claim plausible on its face. 556 U.S. at 677-78.
The parties also disagree as to whether the matter was of legitimate concern to the public
(Docket No. 27, p. 25 of 29; No. 31, p. 14 of 15). However, Plaintiff makes no mention as to whether
the matter was or was not a matter of legitimate concern to the public in her First Amended Complaint
(Docket No. 19). Therefore, based on the pleadings, it is clear that Plaintiff can prove no set of facts to
support the “publicity” tort of invasion of privacy. As such, Defendant is entitled to a judgment as a
matter of law on this claim.
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2.
FALSE LIGHT
“One who gives publicity to a matter concerning another that places the other before the public
in a false light is subject to liability . . . if (1) the false light in which the other was placed would be
highly offensive to a reasonable person, and (2) the actor had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and the false light in which the other would be
placed.” Welling v. Weinfeld, 113 Ohio St.3d 464, **P22-24 (Ohio 2007) (internal citations omitted).
As with the claim of publicity invasion of privacy, nothing in Plaintiff’s First Amended Complaint
claims that the alleged false light in which Plaintiff was painted would be “highly offensive to a
reasonable person” (Docket No. 19). It is clear that Plaintiff can prove no set of facts to support her
state law claim of false light invasion of privacy. Therefore, Defendant is entitled to judgment as a
matter of law with regard to this claim.
VI. CONCLUSION
Given that Plaintiff’s pleadings fail to satisfy the plausibility standard required by FED. R. CIV.
P. 8(a) and the standard set forth in Twombly, Defendant’s Motion for Partial Judgment on the
Pleadings under FED. R. CIV. P. 12(c) is granted.
/s/Vernelis K. Armstrong
United States Magistrate Judge
Date: December 5, 2012
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