[Cite as Earp v. Kent State Univ., 2010-Ohio-5904.]

                                                       Court of Claims of Ohio
                                                                                     The Ohio Judicial Center
                                                                             65 South Front Street, Third Floor
                                                                                        Columbus, OH 43215
                                                                              614.387.9800 or 1.800.824.8263
                                                                                         www.cco.state.oh.us




PAUL W. EARP

       Plaintiff

       v.

KENT STATE UNIVERSITY

       Defendant
       Case No. 2009-04891

Judge Clark B. Weaver Sr.
Magistrate Lewis F. Pettigrew

MAGISTRATE DECISION




        {¶ 1} Pursuant to Civ.R. 53, Magistrate Lewis F. Pettigrew was appointed to
conduct all proceedings necessary for decision in this matter.
        {¶ 2} Plaintiff brought this action alleging defamation and breach of contract,
and seeking declaratory relief. The issues of liability and damages were bifurcated and
the case proceeded to trial on the issue of liability.
        {¶ 3} In 1995, plaintiff, Paul Earp, was charged with two counts of sexual
assault on a child, a felony of the second degree under Texas law.1 According to
plaintiff, both charges stem from his romantic involvement with a 16-year-old female. At
that time, plaintiff was approximately 34 years of age.
        {¶ 4} According to the evidence, plaintiff entered a plea of “no contest” in two
related cases, whereupon he was sentenced to ten years probation and, “deferred
adjudication,” under Texas law. On October 24, 2005, the District Court of Jackson
County, Texas issued an “Order Dismissing Cause Without Adjudication of Guilt” in

        1
         Throughout this decision, the term plaintiff shall be used in reference to Paul Earp.
Case No. 2009-04891                         -2-                 MAGISTRATE DECISION

each of the criminal cases based upon the finding that plaintiff had “satisfactorily fulfilled
the conditions of community service.”       According to plaintiff, the legal effect of the
October 24 orders is that plaintiff was never convicted of the offenses for which he was
charged.
         {¶ 5} In August 2008, plaintiff, now married and living in Ravenna, Ohio,
submitted an online employment application to defendant seeking a position as Senior
User Support Analyst. On the application, plaintiff was asked whether he had been
convicted of a crime and he answered “no.” A space where plaintiff could have entered
an explanation if he had answered “yes” was left blank.
         {¶ 6} At the time that he submitted the application, plaintiff was working part-
time for the University of Akron as a computer-support technician and he was looking
for a full-time position.    Plaintiff considered a position in defendant’s Information
Services (I.S.) Department as a good option inasmuch as his wife Vanessa was
employed as a teacher with defendant. Plaintiff’s wife knew of the Texas proceedings.
         {¶ 7} Plaintiff was granted an interview with three members of defendant’s I.S.
department, which took place in late August or early September 2008. Plaintiff was
later called back for a second interview with Dr. Franks, defendant’s Chief Information
Officer. As a result of the interview process, an offer of employment was extended to
plaintiff both orally and in writing. (Plaintiff’s Exhibit 3.) Neither the possibility of a
background check nor plaintiff’s past criminal charges were discussed at any of the pre-
offer interviews.
         {¶ 8} On September 9, 2008, plaintiff arrived at defendant’s human resources
department in order to complete an employment package. On that occasion, defendant
asked plaintiff to execute a release authorizing defendant to complete a background
check.     Plaintiff realized that defendant would likely uncover the 1995 criminal
proceedings and he “told them what was going to show up in Texas.” When plaintiff
was asked upon cross-examination why he did not disclose the information sooner he
Case No. 2009-04891                            -3-                  MAGISTRATE DECISION

replied that he “didn’t want to open up a can of worms.” Plaintiff testified that when he
left defendant’s offices that day, he still believed that he had been hired.
         {¶ 9} Plaintiff did not receive any further communication from defendant after
the meeting even though he had attempted to contact defendant by telephone and
email.     On September 19, 2008, plaintiff arrived at the lobby of defendant’s I.S.
department and was let into the department by one of defendant’s technicians.
According to plaintiff, when an I.S. manager saw him he told plaintiff to return to the
front lobby and that the issue of plaintiff’s employment was “out of our hands.”
         {¶ 10} After plaintiff returned to the lobby he was approached by Director of
Talent Management Joseph Vitale and another human resources employee. Plaintiff
testified that he was prepared to show Vitale the documents pertaining to his Texas
case. According to plaintiff, however, Vitale stated, “you lied on your application, you
were convicted of a felony, and we are rescinding the offer because of it.” Plaintiff
attempted to explain to Vitale that he had not been “convicted” and he asked Vitale to
look at the Texas documents, but Vitale refused.
         {¶ 11} Plaintiff’s lawyer subsequently sent a letter to Vitale in an effort to explain
the situation in Texas but defendant never responded to the letter. (Plaintiff’s Exhibit 5.)
         {¶ 12} Defamation occurs when written or spoken statements reflect upon a
person’s character in a manner that will cause him to be ridiculed, hated, or held in
contempt, or in a manner that will injure him in his trade or profession. Matikas v. Univ.
of Dayton, 152 Ohio App.3d 514, 2003-Ohio-1852.                   “Slander” refers to spoken
defamatory words, while “libel” refers to written or printed defamatory words. Id.
         {¶ 13} Inasmuch as plaintiff is not a public figure, in order for plaintiff to prevail on
a defamation claim he must 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, and (5) that was either defamatory per se or
caused special harm to the plaintiff.’” See Northeast Ohio Elite Gymnastics Training
Case No. 2009-04891                             -4-                   MAGISTRATE DECISION

Ctr., Inc. v. Osbourne, 183 Ohio App.3d 104, 109, 2009-Ohio-2612, quoting Gosden v.
Louis (1996), 116 Ohio App.3d 195, 206.
       {¶ 14} Under Ohio common law, actionable defamation falls into one of two
categories: defamation per se or defamation per quod. Id. Spoken words are slander
per se when they tend to injure a person in his trade or occupation. Schoedler v.
Motometer Gauge & Equip. Corp. (1938), 134 Ohio St. 78, 84. When a statement is
slanderous per se, some damages are presumed, and the plaintiff is not required to
prove special damages. Id. See also Shoemaker v. Community Action Org. of Scioto
Cty., Inc., Scioto No. 06CA3121, 2007-Ohio-3708, at ¶13.
       {¶ 15} With regard to the truth or falsity of the two statements, plaintiff has proven
that the statement “you were convicted of a felony” is legally false in that the entry of the
Texas district court specifically states that the charges are dismissed “without an
adjudication of guilt.” The statement “you lied on your application” is false in that the
online application requires an answer in the affirmative only if the applicant has been
“convicted of a crime.” The court further finds that such statements would likely cause
plaintiff to be ridiculed, hated, or held in contempt. Thus, the two statements are both
false and defamatory.
       {¶ 16} Additionally, the alleged defamatory statements in this case are
slanderous per se inasmuch as the statement “you were convicted of a felony” and “you
lied on your application” arguably injure plaintiff’s employment in his chosen occupation
or profession.2 Thus, the statements are slanderous per se which means that plaintiff is
relieved of the burden of proving special damages.



       2
          The statement “you were convicted of a felony” does not suggest a crime of moral turpitude
unless the recipient has knowledge of the facts surrounding the conviction. Thus, the statement is not
slanderous per se on that basis. See Schoedler, supra; Matalka v. Lagemann (1985), 21 Ohio App.3d
134, 136. (Spoken words accusing a person of committing a crime are slanderous per se only if the
crime is one of moral turpitude.)
Case No. 2009-04891                          -5-                 MAGISTRATE DECISION

       {¶ 17} However, as defendant correctly asserts, plaintiff has failed to satisfy his
burden of proof on the critical elements of publication to a third-party and actionable
fault as to the falsity of the statements.
       {¶ 18} With respect to the element of publication, the only proven instance where
the slanderous statements were uttered was during the discussion in the lobby. The
parties agree that neither plaintiff’s wife who had prior knowledge of the Texas matter,
nor the other unidentified human resources employee, qualifies as a third-party for
purposes of the element of publication. Although plaintiff insists that the receptionist
was close enough to hear Vitale’s statements, the evidence establishes that she was
not within earshot inasmuch as the discussion took place near the elevators at the back
of the lobby and the volume of the conversation was not much greater than a whisper.
Plaintiff did not present credible evidence that anyone else heard the statements made
in the lobby.
       {¶ 19} Plaintiff also claims that Vitale conveyed the false information to plaintiff’s
co-workers at the University of Akron, a charge that Vitale adamantly denies. However,
plaintiff did not submit any evidence to support his claim other than his testimony that
some of his co-workers had knowledge of the Texas matter.              Given the fact that
information pertaining to proceedings in Texas is available to the public via the Internet
and other means, the court is not convinced that Vitale published any defamatory
statements to plaintiff’s co-workers. Thus, plaintiff has failed to satisfy his burden of
proof on the critical element of publication to a third party.
       {¶ 20} With regard to Vitale’s culpability as to the falsity of the statements, Vitale
testified that the information uncovered by the background check as reflected in the
investigation report prepared by Open Online led him to believe that plaintiff had been
convicted of a felony in Texas and that plaintiff had lied on his employment application.
Vitale lives in Ohio and he is not a lawyer. The information Vitale relied upon was
supplied to him by a private company that had been conducting background checks for
defendant for a number of years. Although plaintiff claims that some of the information
Case No. 2009-04891                              -6-                   MAGISTRATE DECISION

contained in the investigation report was false, nothing in the report would have alerted
a layperson in Vitale’s position of the need to make a further investigation.
       {¶ 21} In the court’s opinion, it is doubtful that anyone, other than a lawyer
familiar with Texas criminal codes and procedures, would have gathered from a reading
of the investigation report that plaintiff was not convicted of the crime of sexual assault
upon a child. Thus, the court finds that Vitale’s failure to realize the falsity of the two
defamatory statements was not the result of a lack of due care on his part. Even
plaintiff acknowledged that Vitale simply did not understand that plaintiff was not
convicted in the Texas matter. Thus, even if a publication had been proven, plaintiff has
failed to satisfy his burden of proof on a second critical element of fault. In short,
plaintiff’s claim of defamation must fail.
       {¶ 22} With regard to plaintiff’s claim of breach of contract, the evidence
establishes that contract formation was expressly contingent upon a significant event
which never occurred, the approval of the board of trustees. See R.C. 3341.04. (“The
board of trustees of * * * Kent state university * * * shall elect, fix the compensation of,
and remove the president and such number of professors, teachers, and other
employees as may be deemed necessary * * *.”) Thus, no contract of employment was
formed.
       {¶ 23} For the foregoing reasons, plaintiff’s contract claim must fail as well as
plaintiff’s claim for declaratory relief.      Having determined that plaintiff has failed to
satisfy his burden of proof on any of the asserted claims, judgment is recommended in
favor of defendant.3
       A party may file written objections to the magistrate’s decision within 14 days of
the filing of the decision, whether or not the court has adopted the decision during that
14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections,

       3
       Defendant’s post-trial motion to amend its answer to assert the defense of release and waiver is
DENIED.
Case No. 2009-04891                                 -7-               MAGISTRATE DECISION

any other party may also file objections not later than ten days after the first objections
are filed. A party shall not assign as error on appeal the court’s adoption of any factual
finding or legal conclusion, whether or not specifically designated as a finding of fact or
conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion within 14 days of the filing of the
decision, as required by Civ.R. 53(D)(3)(b).

                                                  _____________________________________
                                                  LEWIS F. PETTIGREW
                                                  Magistrate

cc:


David C. Perduk                                       Randall W. Knutti
Richard P. Martin                                     Assistant Attorney General
3603 Darrow Road                                      150 East Gay Street, 18th Floor
Stow, Ohio 44224                                      Columbus, Ohio 43215-3130
LP/cmd
Filed November 5, 2010/To S.C. reporter December 1, 2010
