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Webber v. Ohio Department of Public Safety

Court of Appeals of Ohio, Tenth District

December 21, 2017

Alice Webber, Plaintiff-Appellant,
v.
Ohio Department of Public Safety, Defendant-Appellee.

         APPEAL from the Court of Claims of Ohio No. 2015-00449

         On brief:

          John J. Gill, for appellant.

         On brief:

          Michael DeWine, Attorney General, and Velda K. Hofaker, for appellee.

         Argued:

          Velda K. Hofaker.

          DECISION

          SADLER, J.

         {¶ 1} Plaintiff-appellant, Alice Webber, appeals from the judgment entry of the Court of Claims of Ohio granting the motion for summary judgment filed by defendant-appellee, Ohio Department of Public Safety ("ODPS"). For the following reasons, we reverse the decision of the Court of Claims of Ohio and remand the matter for further proceedings.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} Appellant, at all relevant times an assistant director for the Lorain County Emergency Management Agency, initiated suit against appellee alleging claims of defamation, civil conspiracy, negligent infliction of emotional distress, and negligent supervision arising from alleged statements made by appellee's employees and/or agents regarding appellant's response to a major 2014 flooding event. Appellant concurrently moved for an immunity decision, pursuant to R.C. 2703.42(F), as to five employees of appellee or its agencies, Bridgette Bouska, Laura Adcock, Nancy Dragani, Andrew Elder, and Sima Merick. The Court of Claims dismissed all but the defamation count of the complaint, which serves as the basis for the instant appeal.

         {¶ 3} Under the defamation count of her complaint, appellant alleged that on or around May 14, 2014, Bouska, an individual assistance specialist employed by the Ohio Emergency Management Agency ("Ohio EMA"), provided false, defamatory statements to other individuals and entities, including other agents and/or employees of appellee including, but not limited to, Bouska's supervisor (Adcock), the director of the Ohio EMA (Dragani) and her deputy at the time (Merick), and the operations administrator for the Ohio EMA (Elder). According to the complaint, those statements "accuse[d] [appellant] of being a racist, discriminatory, biased, and/or prejudiced, and refusing or failing to perform her job duties based on the ethnicity of individuals." (Second Am. Compl. at 2.) The complaint specifies among the defamatory statements made by Bouska are accusations appellant did not perform her job duties in assessing flood damage in certain communities because there are "Spanish people there." (Second Am. Compl. at 3.) Appellant references as an exhibit appellee's administrative investigation report authored by Kathleen Botos. The investigation report documents Botos' investigation into Bouska's allegation that appellant made "offensive" comments that certain areas of Lorain County were not assessed due to the ethnicity of the residents and Bouska's persistence that appellant made such comments despite an audio recording of appellant's telephone conversation with Bouska, which proved appellant never made those statements. (Second Am. Compl. at 2.)

         {¶ 4} The complaint further alleges appellee's agents and/or employees "received and repeated the defamatory comments and caused the defamatory statements to be circulated to others" and specifically "published and repeated the allegations that [appellant] had not performed her job duties based upon alleged prejudice by [appellant] towards certain ethnicities." (Second Am. Compl. at 3.) Ultimately, the defamatory "information was published to, among others, [appellant's] employer." (Second Am. Compl. at 3.) Appellant alleges the statements against her "were made maliciously and with intent to harm [appellant]" and "constitute defamation per se as they tend to injure [appellant] in her trade or occupation by accusing her of not doing her job because of personal prejudice or bias against race and/or ethnicity" or, alternatively, appellant suffered special damages. (Second Am. Compl. at 3.) Appellee answered by denying the allegations of the complaint and asserting, among other defenses, entitlement to an absolute or qualified privilege.

         {¶ 5} On February 14, 2017, appellee moved for summary judgment on appellant's defamation claim and the immunity issue. According to appellee, appellant's defamation claim fails because (1) the statements appellant claims were made about her are not defamatory, (2) even if employees of appellee did call her racist, it would not be actionable because it is "merely a matter of opinion, " (3) "accusing someone of being discriminatory is not defamation per se because the term 'racist' has been so overused and watered down that it simply has no ascertainable meaning [and, ] [t]herefore, it is not injurious to one's trade or profession, " (4) because the statement itself is ambiguous and does not implicate appellant as being racist, the "innocent construction rule" prevents liability to attach, and (5) any allegedly defamatory comments are entitled to a qualified privilege. (Mot. for Summ. Jgmt. at 1, 2.) Furthermore, appellee contended appellant is not entitled to an immunity determination because she has failed to state a claim for relief and because the undisputed facts demonstrate the named employees are entitled to immunity as a matter of law. Appellee's motion for summary judgment is supported by the affidavits of Bouska, Adcock, Dragani, Elder, Merick, and Botos.

         {¶ 6} Bouska averred information provided to her on "street sheets, " which document properties affected by the flood, the severity of damage, and insurance coverage, raised several concerns with her. (Bouska Aff. at 2.) Bouska was concerned with whether residents had been asked if they carried flood insurance and was concerned why some information on the street sheets did not match the information the Ohio EPA already had about the flooding event. Bouska spoke to appellant by telephone in order to receive more information and clarification on the areas assessed for damage. The call, in pertinent part, went as follows:

[Appellant:] [W]e actually have, that I know of, four different low-income apartment buildings.
[Bouska:] Ok.
[Appellant:] The other one is called Tower Boulevard.
[Bouska:] Ok. But those showed up on the PDA (Preliminary Damage Assessment)?
[Appellant:] Yes.
[Bouska:] So we're good with those.
[Appellant:] Ok. So, and that's Spanish speaking, and that's um, very low income, Tower Boulevard.
[Bouska:] Ok now, these 16 units at this other complex [Pearl Village Apartments], how much damage was there?
[Appellant:] The same amount as the, um, Sheffield Estates.
[Bouska:] About three to four inches?
[Appellant:] Yes. But they're very limited resources and things like that. So,
[Bouska:] Ok. Were those, those also garden units?
[Appellant:] Yes, and so was Tower Boulevard.
[Bouska:] Ok.
[Appellant:] Now there may have been, there may have been one unit at Tower Boulevard, I don't know how many units were actually reported.
[Bouska:] Ok.
[Appellant:] But um, I had one of the residents call me today and said that the manager said she was going to do the cleanup, she came in and, but you know how residents are, they say that floor is still wet, they'll, smells really bad and um, you know these are some disabled people, in both of these, in all four of these units.
[Bouska:] Ok. Has anyone taken a look at these?
[Appellant:] Um, well, we did yesterday. Took a look at the Tower Boulevard ones, but like they, but why they showed up on the reports. Red Cross went out to the Sheffield Estates and Pearl Village one yesterday.
[Bouska:] Ok.
[Appellant:] And they didn't do a full blown [damage assessment], but they, they opened up a shelter just for these residents. Hardly anyone showed up, they just, you know ...

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