Opinion
2021-00054JD
11-14-2023
AMOS AKARAH Plaintiff v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant
Sent to S.C. Reporter 12/20/23
Robert Van Schoyck, Magistrate
DECISION
LISA L. SADLER, JUDGE
{¶1} Plaintiff, who worked as a licensed practical nurse at Defendant's Franklin Medical Center (FMC) through a staffing agency for several months in 2018, brings this action arising from allegations that Defendant made defamatory statements about his job performance.
{¶2} Defendant filed a Motion for Summary Judgment pursuant to Civ.R. 56(B) which is now before the Court for a non-oral hearing pursuant to Civ.R. 56 and L.C.C.R. 4.
Standard for Summary Judgment
{¶3} Civ.R. 56(C) states, in part, as follows:
{¶4} "Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor." See also Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 6, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 364 N.E.2d 267 (1977).
{¶5} "The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact." Starner v. Onda, 10th Dist. Franklin No. 22AP-599, 2023-Ohio-1955, ¶ 20, citing Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). "The moving party does not discharge this initial burden under Civ.R. 56 by simply making conclusory allegations." Id. "Rather, the moving party must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Id. "Once the moving party discharges its initial burden, summary judgment is appropriate if the non-moving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial." Hinton v. Ohio Dept. of Youth Servs., 2022-Ohio-4783, 204 N.E.3d 1174, ¶ 17 (10th Dist.), citing Dresher at 293; Vahila v. Hall, 77 Ohio St.3d 421, 430, 674 N.E.2d 1164 (1997); Civ.R. 56(E).
Analysis
Count One (Defamation)
{¶6} In its motion, Defendant argues that Plaintiff cannot prevail on the claim of defamation in count one of the complaint because it is based on a statement protected by absolute privilege.
{¶7} "To prevail on a defamation claim, whether libel or slander, a plaintiff must prove the following elements: (1) a false statement, (2) about the plaintiff, (3) was published without privilege to a third party, (4) with fault of at least negligence on the part of the defendant, and (5) the statement was either defamatory per se or caused special harm to the plaintiff." (Emphasis added.) Schmidt v. Northcoast Behavioral Healthcare, 10th Dist. Franklin No. 10AP-565, 2011-Ohio-777, ¶ 8.
{¶8} "A statement in a judicial or quasi-judicial proceeding is privileged and may not form the basis for a defamation action as long as the allegedly defamatory statement is reasonably related to the proceedings." Ibanez v. Mosser, 10th Dist. Franklin No. 11AP-1100, 2012-Ohio-4375, ¶ 9. Given the quasi-judicial nature of proceedings before the U.S. Equal Employment Opportunity Commission (EEOC), relevant witness statements in those proceedings "are extended an absolute immunity from claims of defamation * * *." Fischer v. Kent State Univ., 2015-Ohio-3569, 41 N.E.3d 840, ¶ 27 (10th Dist.); see also Kettering v. Diamond-Triumph Auto Glass, Inc., 24 Fed.Appx. 352, 358 (6th Cir.2001) ("Under Ohio law, statements made to the Equal Employment Opportunity Commission are absolutely privileged.").
{¶9} According to the complaint, Plaintiff bases his defamation claim on Defendant publishing one or more statements to the effect "that the Plaintiff was subject to an investigation wherein the Plaintiff was alleged to have been involved with the death of an inmate under his care at the PCI facility in April of 2019." Complaint, ¶ 27. Defendant argues that the only instance of any such statement being published to a third party for purposes of a defamation claim was during proceedings before the EEOC. It is undisputed that Plaintiff filed a charge of age discrimination with the EEOC in 2020, following both his separation from employment at FMC in November 2018 and his later, unsuccessful attempts to reobtain employment with Defendant at FMC or another facility.
{¶10} As support for its motion, Defendant submitted an affidavit from Nicole Erdos, who is employed with Defendant as the Assistant to Deputy Director, Office of Holistic Services. Erdos avers that she prepared a statement dated May 18, 2020, that Defendant submitted to the EEOC the following month as part of its position statement concerning the circumstances of Plaintiffs removal from FMC and his unsuccessful attempts to return to work for Defendant. Erdos Affidavit, ¶ 1, 5. In Erdos' statement to the EEOC, an authenticated copy of which is attached to her affidavit, among other things she wrote that "it was discovered [Plaintiff] had been involved in the care of an inmate at PCI who had died." Id. at ¶ 6.
{¶11} To the extent Erdos misidentified PCI-Pickaway Correctional Institution- as the institution where the inmate died, she explains in her affidavit that on April 24, 2019, she had been notified via email by Defendant's interim Medical Operations Director, Kevin Runyon, that Plaintiff and two other individuals were "part of an investigation performed by [Defendant's] inspector's office", and while she recalls making her statement to the EEOC based on the information that had been provided to her at that time, she later learned that the investigation involving Plaintiff related to an inmate who died at FMC rather than PCI. Id. at ¶ 4, 6, 7. Regardless of Erdos misidentifying the name of the facility, Defendant argues, the statement was made during the EEOC proceedings, was reasonably related to those proceedings, and was therefore absolutely privileged.
{¶12} In response, Plaintiff argues in a general sense that Defendant stated "things that were not necessary" in responding to the EEOC. Response, p. 12. The standard for statements to be absolutely privileged in judicial or quasi-judicial proceedings, however, is that they are "reasonably related to the proceedings." Ibanez, 2012-Ohio-4375, at ¶ 9. In this case, it is apparent from the affidavit of Erdos and the position statement that Defendant submitted to the EEOC that the statement at issue was reasonably related to the charge of age discrimination that Plaintiff made with the EEOC. Plaintiff had claimed to the EEOC that Defendant unlawfully discriminated against him because of age in relation to his removal from FMC and his unsuccessful attempts to return to work for Defendant. The statement by Erdos to the EEOC responded to those allegations, discussing several ostensibly non-discriminatory reasons why Defendant did not permit Plaintiff to return to work at its facilities after his removal from FMC, including, among other things, his involvement in the care of an inmate who died. As Erdos and Defendant's statements to the EEOC reasonably related to those proceedings, they were protected by absolute privilege.
{¶13} It is noted that Plaintiff, while admitting in his response that he was on duty and witnessed the death of the inmate in question, argues that the statement to the EEOC was nevertheless false, although he points to no supporting Civ.R. 56 evidence. Defendant argues that even if the statement were not privileged Plaintiff cannot establish that it was false, as a defamation action may be "completely defended by showing that the gist, or imputation, of the statement is substantially true * * *." Sweitzer v. Outlet Communications, Inc., 133 Ohio App.3d 102, 110, 726 N.E.2d 1084 (10th Dist.1999). The Court need not consider whether the statement was false, however, because the statement was clearly subject to absolute privilege as it was made during the EEOC proceedings and was reasonably related to those proceedings, and "'absolute privilege protects the publisher of a false, defamatory statement * * *.'" Lacey v. Ohio Aud. of State, 10th Dist. Franklin No. 19AP-110, 2019-Ohio-4266, ¶ 15, quoting Bigelow v. Brumley, 138 Ohio St. 574, 579, 37 N.E.2d 584 (1941).
{¶14} Therefore, Defendant is immune from Plaintiffs claim of defamation based on any statement in the EEOC proceedings. Defendant is thus entitled to judgment as a matter of law on the claim of defamation in count one of the complaint.
Count Two (Tortious Interference) & Count Three (Negligence)
{¶15} The remaining claims set forth in the complaint are identified in count two as tortious interference and in count three as negligence. Defendant argues that these are essentially defamation claims that are barred by the one-year statute of limitation for defamation, R.C. 2305.11(A).
{¶16} "[I]n determining which limitation period will apply, courts must look to the actual nature or subject matter of the case, rather than to the form in which the action is pleaded. The grounds for bringing the action are the determinative factors, the form is immaterial." Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183, 465 N.E.2d 1298 (1984); see also Singh v. ABA Publishing Am. Bar Assn., 10th Dist. Franklin No. 02AP-1125, 2003-Ohio-2314, ¶ 26.
{¶17} "Where the 'predominant subject matter' of a plaintiffs action is 'the alleged damage to the [plaintiffs] reputation caused by the circulation of allegedly false information,' a trial court does not err in determining the claim is actually one for defamation rather than the claims listed in the complaint." Ra v. Ohio Atty. Gen., 2020-Ohio-1346, 153 N.E.3d 759, ¶ 18 (10th Dist.), quoting Singh at ¶ 25-27. "However, where the plaintiff's stated claim is based on separate conduct or conduct of a different nature than the publication of defamatory material, some courts have found the claim should not be reclassified as a defamation claim." Id. at ¶ 19.
{¶18} For his tortious interference claim, Plaintiff alleges that he "had a contractual relationship with both Around the Clock Staffing and InGenesis Staffing agencies" and that "Defendant ODRC conveyed false, inaccurate, and defamatory statements to the third-party staffing agencies in both 2018 (to Around The Clock Staffing) and in 2019/2020 (to InGenesis staffing) which directly interfered with the Plaintiff and third-parties' employment relationship." Complaint, ¶ 35, 37. Similarly, for his negligence claim Plaintiff alleges that "Defendant, ODRC had a duty to refrain from reporting inaccurate statements to third-party entities regarding the Plaintiffs employment" and that "Defendant, ODRC breached this duty by reporting false and defamatory statements to both staffing agencies referenced above, and the EEOC office." Id. at ¶ 42-43.
{¶19} Because the predominant subject matter of the tortious interference and negligence claims is damage allegedly resulting from the publication of defamatory material, the statute of limitations on defamation claims is applicable. See Ra at ¶ 22 (trial court did not err in concluding that claims of negligence and tortious interference essentially constituted defamation claims).
{¶20} "R.C. 2743.16(A) provides the applicable statute of limitations for civil actions against the state, stating such actions 'shall be commenced no later than two years after the date of accrual of the cause of action or within any shorter period that is applicable to similar suits between private parties.'" (Emphasis added.) Stubbs v. Dept. of Rehab. & Corr., 10th Dist. Franklin No. 11AP-484, 2012-Ohio-1374, ¶ 14. "A claim for defamation 'shall be commenced within one year after the cause of action accrued.'" Fischer, 2015-Ohio-3569, 41 N.E.3d 840, at ¶ 22, quoting R.C. 2305.11(A); see also Shampine v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin Nos. 11AP-123 & 11AP-384, 2011-Ohio-6057, ¶ 12. "A cause of action for defamation accrues on the date of publication of the alleged defamatory matter." Pankey v. Ohio Adult Parole Auth., 10th Dist. Franklin No. 11AP-36, 2011-Ohio-4209, ¶ 9.
{¶21} Plaintiff alleges that Defendant published "defamatory statements to the third-party staffing agencies in both 2018 (to Around The Clock Staffing) and in 2019/2020 (to InGenesis staffing) * * *." Complaint, ¶ 37. Plaintiff commenced this action on February 2, 2021, meaning that any claim of defamation for statements published in 2018 or 2019 would be untimely. Notwithstanding Defendant's statements to the EEOC- which, as previously explained, are subject to absolute privilege-the only allegedly defamatory statement first made in 2020 or later that Plaintiff appears to reference is a January 31, 2020 email message from an employee of Defendant to the InGenesis staffing agency explaining that Plaintiff would not be rehired because he had previously been removed from FMC "for attendance and other issues". EEOC Position Statement, Bates No. DRC-001079. But any defamation claim based on this message would be untimely inasmuch as Plaintiff commenced this action more than one year later, on Tuesday, February 2, 2021.
{¶22} Plaintiff argues that he only learned of the allegedly defamatory statements made to one or both of the staffing agencies during the EEOC proceedings and filed his complaint within one year from that time, but any cause of action that he had for defamation accrued "upon the first publication of the allegedly defamatory statement." Fleming v. Ohio Atty. Gen., 10th Dist. Franklin No. 02AP-240, 2002-Ohio-7352, ¶ 13.
{¶23} The Court notes that Plaintiffs response to the Motion for Summary Judgment makes reference to him filing a lawsuit in the U.S. District Court for the Southern District of Ohio in November 2020, after receiving a right-to-sue letter from the EEOC on his charge of age discrimination, but there is nothing to suggest that any claims before this Court were somehow rendered timely by operation of the saving statute (R.C. 2305.19(A)), nor could the saving statute apply in this matter given that the federal lawsuit remained pending when Plaintiff initiated this matter. See Designation Form filed Mar. 12, 2021; see also Nye v. Univ. of Toledo, 10th Dist. Franklin No. 12AP-670, 2013-Ohio-2311, ¶ 24 (saving statute does not apply where a plaintiff files a second complaint before failing otherwise than upon the merits in a previous complaint.)
{¶24} Accordingly, reasonable minds can only conclude that the alleged defamation upon which counts two and three of the complaint are based is time-barred.
{¶25} Finally, Defendant argues that even if the complaint had been filed within one year of an allegedly defamatory statement being published to a staffing agency, any such statement would be protected by qualified privilege.
{¶26} "One of the defenses to a defamation claim is one of qualified privilege, in which the interest that the defendant is seeking to vindicate is conditioned upon publication in a reasonable manner and for a proper purpose." DeGarmo v. Worthington City Schools Bd. of Ed., 10th Dist. Franklin No. 12AP-961, 2013-Ohio-2518, ¶ 18. "'A qualified privilege is an affirmative defense to a claim of defamation.'" Hill v. Ohio Dept. of Rehab. & Corr., 2021-Ohio-561, 168 N.E.3d 583, ¶ 17, quoting Morrison v. Gugle, 142 Ohio App.3d 244, 258, 755 N.E.2d 404 (10th Dist.2001).
{¶27} Concerning the nature of communications subject to a qualified privilege, the Tenth District Court of Appeals has explained:
The purpose of a qualified privilege is to protect speakers in circumstances where there is a need for full and unrestricted communication concerning a matter in which the parties have an interest or duty. Hahn v. Kotten (1975), 43 Ohio St. 2d 237, 246, 331 N.E.2d 713 * * * A qualified privilege exists when a statement is: made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a right or duty, if made to a person having a corresponding interest or duty on a privileged occasion and in a manner and under circumstances fairly warranted by the occasion and duty, right or interest.Fischer, 2015-Ohio-3569, 41 N.E.3d 840, at ¶ 25, quoting Mallory v. Ohio Univ., 10th Dist. Franklin No. 01AP-278, 2001 Ohio App. LEXIS 5720, *21 (Dec. 20, 2001).
{¶28} "When alleged defamatory statements have occurred in a business context, by someone whose job gives that person a legitimate interest in the matter, they are subject to a qualified privilege when the circumstances exist or are reasonably believed by the defendant to exist." Brunsman v. W. Hills Country Club, 151 Ohio App.3d 718, 2003-Ohio-891, 785 N.E.2d 794, ¶ 23 (1st Dist.). "Ohio law recognizes that 'a qualified privilege exists as to communications of an employer concerning the discharge of a former employee to that employee's prospective employer.'" Jahahn v. Wolf, 10th Dist. Franklin No. 12AP-624, 2013-Ohio-2660, ¶ 17, quoting Croskey v. Universal Health Servs., 5th Dist. Richland No. 09 CA 37, 2009-Ohio-5951, ¶ 59; see also Jurczak v. J&R Schugel Trucking Co., 10th Dist. Franklin No. 03AP-451, 2003-Ohio-7039, ¶ 41, citing Buchko v. City Hosp. Assn., 76 F.3d 378 (6th Cir.1996) ("determining comments by hospital administrator to third-party staffing company about plaintiff, who was employed by third-party staffing company, were privileged based on the common business interest between the hospital and the third-party staffing company").
{¶29} "A qualified privilege may be defeated only by clear and convincing evidence of actual malice on the part of the defendant." Stainbrook v. Ohio Secy. of State, 2017-Ohio-1526, 88 N.E.3d 1257, ¶ 18 (10th Dist.). "A defendant acts with actual malice if they make statements with knowledge that the statements are false or if they recklessly disregard the truth or falsity of the statements." Childs v. Kroger Co., 10th Dist. Franklin No. 22AP-524, 2023-Ohio-2034, ¶ 126.
{¶30} It is undisputed that Defendant has a business relationship with the third-party staffing agencies, Around the Clock Staffing and InGenesis, in which the agencies place their employees to work in Defendant's facilities. It is also undisputed that on November 9, 2018, an employee of Defendant sent an email message to an employee or agent of Around the Clock Staffing addressing the reasons why Plaintiff was removed from FMC, including absenteeism and failing to complete a wound care dressing. Erdos Affidavit, Exhibit B-3, p. 2. Consistent with that message, Defendant submitted an affidavit from FMC Nursing Supervisor Tammy Blackmon wherein she details the circumstances that led her to request Plaintiffs removal from FMC, including an attendance issue, failure to dress a patient's wound, and patient care and documentation deficiencies. And as mentioned earlier, Defendant also submitted a copy of a January 31, 2020 email message from an employee of Defendant to the InGenesis staffing agency addressing why Plaintiff would not be rehired, i.e. because he had previously been removed from FMC "for attendance and other issues". EEOC Position Statement, Bates No. DRC-001079.
{¶31} The Civ.R. 56 evidence submitted by Defendant shows that the communications in question were made in good faith and involved subject matter of common interest between an employer and the staffing agencies with which it did business, i.e. the discharge of a former employee. Though in his response to the motion Plaintiff admits failing to change a patient's wound dressing, he argues that this was an unfair criticism and that his removal from FMC amounted to unlawful employment discrimination. But Plaintiff's complaint does not raise an employment discrimination claim, and, as to the alleged defamation set forth in counts two and three of the complaint, Plaintiff points to no countervailing Civ.R. 56 evidence that would create an issue of material fact on the question of whether the communications at issue were made in good faith and involved subject matter of common interest between Defendant and the staffing agencies. Reasonable minds must therefore conclude that a qualified privilege attaches to Defendant's communications with the staffing agencies. Further, Plaintiff points to no evidence of actual malice on the part of Defendant to overcome the qualified privilege.
{¶32} Accordingly, Defendant is entitled to judgment on counts two and three of the complaint.
CONCLUSION
{¶33} Based upon the foregoing the Court concludes that there are no genuine issues of material fact and that Defendant is entitled to judgment as a matter of law. Accordingly, Defendant's Motion for Summary Judgment shall be granted and judgment shall be rendered in favor of Defendant.
JUDGMENT ENTRY
{¶34} A non-oral hearing was conducted in this case upon Defendant's Motion for Summary Judgment. For the reasons set forth in the decision filed concurrently herewith, the Court concludes that there are no genuine issues of material fact and that Defendant is entitled to judgment as a matter of law. As a result, Defendant's Motion for Summary Judgment is GRANTED and judgment is hereby rendered in favor of Defendant. Court costs are assessed against Plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.