from the Court of Claims of Ohio No. 2015-00449
J. Gill, for appellant.
Michael DeWine, Attorney General, and Velda K. Hofaker, for
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.
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
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
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
[Appellant:] [W]e actually have, that I know of, four
different low-income apartment buildings.
[Appellant:] The other one is called Tower Boulevard.
[Bouska:] Ok. But those showed up on the PDA (Preliminary
[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.
[Appellant:] Now there may have been, there may have been one
unit at Tower Boulevard, I don't know how many units were
[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.
[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