Opinion
No. 88-07049.
Decided October 19, 1989.
Bruce B. Elfvin, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and Jordan Finegold, for defendant.
This case requires a determination of whether an employee of the Ohio Department of Mental Retardation and Developmental Disabilities ("ODMR") was defamed when his supervisor published certain allegations in a staff incident report.
Jerome L. Leibson, plaintiff herein, has been an employee of the ODMR, defendant herein, since 1976. He is a high-level employee and directly supervises implementation of programs involving the training of the mentally retarded. Ultimately, he was assigned to the Warrensville Developmental Center located in Cuyahoga County. There, he supervised a program which utilized special education unit classes, conducted by teachers, to instruct qualified mentally retarded participants.
In August 1987, defendant's employee, Gail Riess, was assigned to the Warrensville facility as the program manager and direct supervisor over a number of program administrators, including plaintiff. Apparently, there was disagreement between plaintiff and Riess regarding the goals and methods to be implemented in plaintiff's program. Riess made it clear that she favored the phasing out of substantial portions of the program, which process had already begun. This process would, and did, result in the direct elimination of the teaching positions which plaintiff supervised.
By September 1987, the underlying programs for various teaching positions had been cancelled. The former students had been transferred to other facilities and programs, resulting in empty classrooms. The teachers of such former classes continued to be paid and to report to work as per schedule. However, such teachers had no duties to perform, a necessary prerequisite to termination of the teaching position and discharge of the teacher.
On or about September 8, 1987, Riess was informed by Sharon Ayers and Ruby Thompson, both of whom were program administrators directly responsible to Riess, that plaintiff had reassigned Ernestine C. Spencer as the assistant to program coordinator Jan D'Amico. Spencer was one of the teachers whose class had been abolished and who had no other duties. Under the applicable employment agreements, the reassignment of Spencer to perform duties not within the employment classification for teachers would create a justification for her reclassification to a new position. Not only would such an act prevent the termination of her employment, but it would also constitute a use of an employee outside of her classification or status under the existent labor contract between the employer and Spencer's union.
Apparently with these fears in mind, Riess confronted plaintiff on September 10, 1987. He stated that he had made no such reassignment but had only ordered Spencer to monitor the implementation of educational goals within certain vocational training programs, which duties were fully within Spencer's employment classification. That evening, Riess explained the situation to the facility superintendent, Steven M. Schumacher. He explained the use of staff incident reports and encouraged her to utilize such to resolve the situation.
The next day, Riess submitted the staff incident report at issue. Section I of the document named plaintiff as the subject of the report and stated as follows:
"On September 9, 1987, it was brought to my attention that Ernestine Spencer was reassigned by yourself to be Jan D'Amico's assistant. This was done without authorization from myself or the Superintendent. All reassignments must go through proper procedures, which would include myself, personnel, payroll, superintendent and DAS. You were negligent and insubordinate in that you did not follow the chain of command."
The report also contained a Section II, which provided for the response of the employee named in Section I. Plaintiff received a copy of the report and, pursuant to his rights as an employee, responded to the accusations and asserted that they were false.
On September 17, 1987, plaintiff filed a grievance with the employee union in which he asserted that the labor contract had been violated by the submission of a staff incident report containing false accusations. On September 23, 1987, Riess responded to the grievance as follows, in pertinent part:
"Whether a false accusation has been made will be determined at the Disciplinary Conference or Predisciplinary Conference review. A staff incident report is not considered discipline[;] discipline as defined by 24.02 is verbal reprimand, written reprimand, suspension or termination. Contract articles * * * do not apply."
It was ultimately determined that the allegations in the staff incident report could not form the basis of a grievance, apparently for the very reasons set forth in the response.
The superintendent, on September 28, 1987, gave notice to plaintiff that a hearing was to be held on October 2, 1987, to be conducted by the superintendent, regarding the matters raised in the staff incident report. It was also specified that plaintiff was "being considered for discipline from suspension to removal." Just prior to the hearing, the superintendent withdrew and Jason Hooks, the labor relations officer, was assigned to hear the matter. Hooks had, on separate occasions, discussed the matter individually with both plaintiff and Riess. He had informed the superintendent that, in his opinion, the incident was the result of a misunderstanding.
At the hearing, plaintiff testified to his version of the events. Ernestine Spencer also testified in support thereof. Riess neither appeared at the hearing nor submitted any material in support of her charges. Subsequently, the superintendent informed plaintiff by memorandum that "[b]ased on the evidence from your hearing, it has been concluded that a misunderstanding did occur. Please consider the matter to be resolved."
On July 13, 1988, plaintiff filed a complaint in this court by which it was asserted that the state of Ohio, acting through its employee Gail Riess, defamed plaintiff by filing the staff incident report. The matter came on for trial and is determined upon the court file, evidence admitted at trial and the arguments of counsel.
I
This defamation case is one involving an asserted libel of the plaintiff, i.e., the publication of slander in a written or printed form. Libel has been defined as the malicious creation of a false publication against an individual which brings that individual into ridicule, contempt or hatred, or which injures him in his trade or profession. Becker v. Toulmin (1956), 165 Ohio St. 549, 60 O.O. 502, 138 N.E.2d 391; Cleveland Leader Printing Co. v. Nethersole (1911), 84 Ohio St. 118, 95 N.E. 735. The words used may be impliedly (per quod) defamatory or, because of the ordinary meaning of the words themselves (per se), the law may allow the presumption of an injury upon proof that such words were, in fact, published.
In order to constitute libel per se, the words used must injuriously affect the plaintiff and cannot be reasonably susceptible to another, more innocent meaning. Becker, supra, 165 Ohio St. at 553-554, 60 O.O. at 504-505, 138 N.E.2d at 395-396. Words asserting that plaintiff committed a crime would qualify, as would an impeachment of plaintiff's skill, knowledge or the manner in which he conducts himself. Nethersole, supra; Floraday v. Motometer Gauge Equip. Corp. (1934), 50 Ohio App. 397, 18 Ohio Law Abs. 23, 4 O.O. 129, 198 N.E. 488. Also constituting defamation per se are words imputing blame, Hahn v. Kotten (1975), 43 Ohio St.2d 237, 72 O.O.2d 134, 331 N.E.2d 713, 85 A.L.R.3d 1147, as well as words which affect another in his profession, business or employment by imputing disloyalty or insubordination to his employer, 35 Ohio Jurisprudence 3d (1982) 478, 479, Defamation Privacy, Section 36. If the language constitutes libel per se, then the malicious character of the publication need not be shown and, without any showing of special damages, a plaintiff may recover for the effect of the libel. Becker, supra, at 553, 60 O.O. at 504, 138 N.E.2d at 395.
In the present case, the words utilized in the staff incident report clearly state that plaintiff was insubordinate as well as negligent. These words would be strongly suggestive if they stood alone. However, they are qualified by a preceding explanatory paragraph which would allow a particular reader to reach a conclusion at variance with that of the writer of the report. While there exists some question whether the publication constitutes libel per se, such conclusion shall be assumed for purposes of the analysis which follows.
II
Defendant has asserted two defenses for its publication, i.e., that the publication is true and/or that defendant had a privilege to make such publication. If it is shown that a publication is true, no action may be maintained or damages awarded regardless of defamatory character or actuating malice. See, e.g., 35 Ohio Jurisprudence 3d (1982) 493, Defamation Privacy, Section 52. Here, defendant has shown that it had some basis for believing that the publication was true at the time it was uttered. However, while a well-founded, subjective belief in the truth of a publication may militate toward reduced damages, it is not a defense. Defendant has failed to demonstrate that the publication at issue contained even the slightest amount of truth. In fact, it appears that plaintiff's version of the events as conveyed to Riess on September 10, 1987 was a true account of the extent of his actions. Such was also the conclusion of the superintendent and the hearing officer. There being no truth in the allegations as published, the defense of truth is inapplicable.
Defendant also contends that it had a privilege to publish the statements at issue. There are situations in which a great public interest exists in allowing the publication to occur so that, even though defamatory, the publication is not actionable. Liles v. Gaster (1885), 42 Ohio St. 631; Bigelow v. Brumley (1941), 138 Ohio St. 574, 21 O.O. 471, 37 N.E.2d 584. These situations give rise to a privilege or immunity which attaches to the person of the publisher. Liles, supra. The privilege is not based upon the words used but the circumstances of the utterance. Post Publishing Co. v. Moloney (1893), 50 Ohio St. 71, 33 N.E. 921.
Privileges are of two kinds, absolute and qualified. See, generally, 35 Ohio Jurisprudence 3d (1982), Defamation Privacy, Sections 63-93. Circumstances which give rise to absolute immunity are very few, and, as the term implies, the immunity granted is complete regardless of motive or knowledge actuating the publication. However, absolute privilege is not at issue in the present case.
Defendant asserts that its employee, Gail Riess, had a qualified privilege to publish those statements contained within the staff incident report. The existence of the privilege was explained in McKenna v. Mansfield Leland Hotel Co. (1936), 55 Ohio App. 163, 167, 24 Ohio Law Abs. 53, 54-55, 8 O.O. 463, 465, 9 N.E.2d 166, 168-169, as follows:
"`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 interests of society that he should tell third persons certain facts, which he in good faith proceeds to do.' 17 Ruling Case Law, 341.
"`The preponderance of authority supports the view that communications between an employer and an employee, or between two employees, concerning the conduct of a third employee or former employee, are qualifiedly privileged, and thus, even though such a communication contain[s] matter defamatory to such other or former employee, he cannot recover in the absence of sufficient proof of actual malice to overcome the privilege of the occasion.' 98 A.L.R., 1301, annotation." (Emphasis added.)
In West v. Peoples Banking Trust Co. (1967), 14 Ohio App.2d 69, 72, 43 O.O.2d 197, 199, 236 N.E.2d 679, 681, qualified privilege was explained further, in reliance upon 33 American Jurisprudence 124, Section 126, as follows:
"`* * * A communication made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation. The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty, and is not restricted within any narrow limits.[']" (Emphasis sic.)
The foregoing definition was adopted by the Ohio Supreme Court in the landmark decision of Hahn v. Kotten, supra, 43 Ohio St. 2 d at 245-246, 72 O.O.2d at 139-140, 331 N.E.2d at 719-720. The standard enunciated through Hahn has become the basic law upon the issue of qualified privilege between private parties and is regularly applied in employment situations. See, e.g., Fawcett v. G.C. Murphy Co. (1976), 46 Ohio St.2d 245, 75 O.O.2d 291, 348 N.E.2d 144; Creps v. Waltz (1982), 5 Ohio App.3d 213, 5 OBR 476, 450 N.E.2d 716; Knecht v. Vandalia Medical Center, Inc. (1984), 14 Ohio App.3d 129, 14 OBR 145, 470 N.E.2d 230; Stearns v. Ohio Savings Assn. (1984), 15 Ohio App.3d 18, 15 OBR 39, 472 N.E.2d 372; Smith v. Klein (1985), 23 Ohio App.3d 146, 23 OBR 387, 492 N.E.2d 852; Patio World v. Better Business Bureau, Inc. (1989), 43 Ohio App.3d 6, 538 N.E.2d 1098.
In the present case, it is undisputed that the publication at issue was uttered in an employment staff incident report. Such reports are customarily utilized in employment situations for, among other uses, the initiation of investigatory proceedings, staff disciplinary proceedings and other employment purposes. Such procedures are of immense value, well beyond that of the employment relationship, for the resolution of disputes and misunderstandings. Of necessity, such processes include the latent possibility that a complaint, originally considered to be well founded, will ultimately be determined as groundless.
The communication itself contained allegations of particular conduct of plaintiff which allegedly occurred during, and as part of, the performance of his employment. Obviously, this publication and its reiteration throughout the internal proceedings was, upon its face, made within the employment relationship, between supervisory personnel, for the employment purpose of initiating discipline against plaintiff. Further, it was made upon the occasion of, and pursuant to, reports from other high level employees. Therefore, the conduct of defendant's employees appears to satisfy the standards enunciated in West and Hahn, supra.
III
Plaintiff also contends that, even supposing that the statements at issue were uttered in circumstances giving rise to a qualified privilege, application of the privilege is barred in this case because the publication was uttered with actual malice. A qualified privilege negates only the legal presumption of the maliciousness of the publication. It will not protect the publisher when the utterance is factually false and published, not from the good faith, proper motive for which the qualified privilege was established, but maliciously. On this point, the second paragraph of the syllabus of Hahn, supra, sets forth the applicable standard:
"A qualified privilege protecting the making of defamatory statements is exceeded when the statements are made with `actual malice,' that is, with knowledge that the statements are false or with reckless disregard of whether they were false or not. ( New York Times Co. v. Sullivan, 376 U.S. 254 [ 84 S.Ct. 710, 11 L.Ed.2d 686], followed.)"
Although relying upon the words of the standard established in New York Times, supra, as a framework for analysis of the exception to the privilege, the court in Hahn actually applied the ordinary common-law definition for actual malice as follows:
"The correct rule as to the type of malice required to be established by plaintiff in connection with qualified privilege cases is simply and clearly stated in the Ohio Court of Appeals' decision of DeAngelo v. W.T. Grant Co. (1952), 64 Ohio Law Abs. 366 [111 N.E.2d 773]:
"`* * * In the case of a privileged communication, however, express malice as distinguished from malice in law must be shown; that is to say, if the occasion be privileged, the plaintiff may not recover, although he proves that defendant used language actionable per se and that the same was false, unless he goes further and shows that in using same, defendant was moved by actual malice, such as ill will, spite, grudge or some other ulterior motive.'" (Emphasis sic.) Hahn v. Kotten, supra, at 43 Ohio St.2d at 248, 72 O.O.2d at 140-141, 331 N.E.2d at 721.
The difference between the two standards is plain. While the New York Times standard focuses upon the attitude of the publisher toward the truth or falsity of the publication, regardless of the actuating motive, the common-law standard requires examination of the publisher's attitude toward the plaintiff. Plaintiff would have the court apply the former standard, even though it appears to be the higher standard and, in particular, asserts that the failure to investigate whether the publication was false prior to its publication constituted a reckless disregard of whether or not it was false, relying upon Perez v. Scripps-Howard Broadcasting Co. (1988), 35 Ohio St.3d 215, 520 N.E.2d 198.
Both Perez and New York Times involved the defamation of a public figure by professional publishers. In such cases "the First Amendment grants a unique protection to the press from the `chilling effect' of defamation litigation * * *." Lansdowne v. Beacon Journal Pub. Co. (1987), 32 Ohio St.3d 176, 178, 512 N.E.2d 979, 982. See, also, Grau v. Kleinschmidt (1987), 31 Ohio St.3d 84, 96, 31 OBR 250, 260-261, 509 N.E.2d 399, 408-409; Varanese v. Gall (1988), 35 Ohio St.3d 78, 79-80, 518 N.E.2d 1177, 1179-1181; Perez, supra, 35 Ohio St.3d at 218, 520 N.E.2d at 201-202.
Despite differences in techniques of information gathering and reporting between public broadcasting concerns and those of private individuals, the inquiry applicable to broadcasters would seem to have become the rule for cases between private individuals. See, e.g., Patio World, supra, 43 Ohio App.3d at 10, 538 N.E.2d at 1102-1103; Creps, supra, 5 Ohio App.3d at 215, 5 OBR at 478-479, 450 N.E.2d at 719-720. However, in a later application of the Hahn standard for actual malice, contained within paragraph two of the syllabus, the Supreme Court affirmed an instruction to a jury stating that "if the slander [by the employer] were motivated by malice the defendant would be liable irrespective of the relationship of the parties to whom the words were communicated." (Emphasis added.) Fawcett, supra,
46 Ohio St.2d at 255, 75 O.O.2d at 296-297, 348 N.E.2d at 150-151. Likewise, in Patio World, the court applied the actual malice standard from the syllabus of Hahn yet stated that the plaintiff was required to prove that the publication was "actuated by express malice or actual ill-will. * * *" Patio World, supra, 43 Ohio App.3d at 10, 538 N.E.2d at 1102. Moreover, that case went further and required the Better Business Bureau to "make a thorough and complete investigation and to fully and accurately report information only from reliable sources." Id. at paragraph two of syllabus. On the other hand, it was also recently stated in Varanese, supra, 35 Ohio St.3d at 80, 518 N.E.2d at 1180 that:
"* * * `[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. * * *' * * *" (Quoting from St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267.)
From the above, it is clear that there is considerable variance in standards applied to determine the existence of actual malice for cases between private plaintiffs and non-broadcaster defendants. This variance has resulted in confusion as to which standard ought to be applied, both in the courts of appeals as well as more recent cases from the Ohio Supreme Court.
As to the present case, and indeed, in all similar situations, a supervisor's duty may go no further than reporting what has been reported to him, and that, for the very purpose of initiating an investigation. It is most incongruous to require such supervisor to initially investigate these matters, especially when there are those within the business or organization who have the requisite training and are charged with such a duty. Consequently, the standard which would require such an investigation, based as it is upon situations occurring predominantly among professional publishers of information and their investigations of public officials, can hardly be applicable to cases involving private individuals in an employment situation.
Nevertheless, under either of the standards set forth, the evidence presented failed to show the existence of actual malice in the mind of the publisher. Her actions were based upon the reports of two senior employees whose reliability and veracity she had no reason to suspect. Reliable sources have consistently been found to rebut the charge of actual malice. Perez, supra; St. Amant v. Thompson, supra. Moreover, after receiving plaintiff's version of the events, which was in direct contradiction to the other sources, the author of the report consulted with her own superior. Apparently due to the conflict, he recommended that she file a staff incident report. A report filed upon the direct recommendation of one's superior can hardly be considered, without more, to have been actuated by actual malice. Accordingly, defendant had a qualified privilege to utter those statements contained within the staff incident report.
This cause of action is hereby dismissed. Costs assessed against the plaintiff.
Cause dismissed.
FRED J. SHOEMAKER, J., retired, of the Court of Common Pleas of Franklin County, sitting by assignment.