[Cite as Jeffers v. Dept. of Natural Resources, 2009-Ohio-7026.]

                                                         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




STACIE A. JEFFERS

        Plaintiff

        v.

DEPARTMENT OF NATURAL RESOURCES

        Defendant
        Case No. 2006-04199

Judge Joseph T. Clark

DECISION




        {¶ 1} Plaintiff brought this action alleging claims of breach of contract,
defamation,1 and intentional infliction of emotional distress. The issues of liability and
damages were bifurcated and the case proceeded to trial on the issue of liability.
        {¶ 2} This case arises as result of a settlement agreement entered into by and
between plaintiff and defendant and her former employer, the Ohio Department of
Natural Resources (ODNR).               In May 2000, plaintiff was hired as a patrol officer in
ODNR’s Division of Watercraft. The terms of her employment required that she serve a
one-year probationary period. According to plaintiff, at some point after she started
work at ODNR, one of her female supervisors began to sexually harass her. Plaintiff
alleged that because she did not reciprocate the advances her supervisor responded by
treating her unfairly, criticizing her work, and giving her poor performance reviews. On
October 19, 2000, plaintiff was informed by letter that ODNR was removing her from
employment. (Plaintiff’s Exhibits 2 and 3.) Included with that correspondence was a

        1
        Subsequent to trial, plaintiff voluntarily dismissed her defamation claim; therefore, it is not
addressed in this decision.
“personnel action” form which noted that plaintiff’s separation from ODNR was
designated a “probationary removal.”
        {¶ 3} After her removal, plaintiff retained legal counsel.      In May 2001, the
parties, through their respective attorneys, agreed to compromise their dispute via the
settlement and release agreement that is the subject of this action. Among other things,
plaintiff agreed not to pursue her claims of wrongful termination, violation of public
policy, violation of certain terms of her Fraternal Order of Police contract, and her claims
of sexual harassment and assault and battery.               In exchange, ODNR agreed to
reprocess the October 19, 2000 personnel action to reflect that plaintiff had voluntarily
resigned from her employment.
        {¶ 4} In June 2001, after plaintiff and her counsel had signed the settlement
papers, plaintiff’s counsel forwarded the same to defendant’s counsel together with a
request that ODNR send back a copy of the personnel action form that it had agreed to
provide. (Plaintiff’s Exhibit 13.)
        {¶ 5} On July 30, 2001, plaintiff’s counsel followed up with a letter in which she
stated that: “I am writing to request a copy of the revised personnel action that was
placed in [plaintiff’s] file stating that she resigned her employment with the Division of
Watercraft. * * * It is my understanding that any personnel action stating that [plaintiff]
was a probationary removal, or anything to that effect, was deleted from her personnel
file. (Plaintiff’s Exhibit 15.)
        {¶ 6} On August 10, 2001, counsel for ODNR responded to plaintiff’s request by
providing an amended personnel action form stating that plaintiff had resigned “per the
attached settlement agreement,” and relating he had “advised the department’s office of
Human Resources of our responsibility to remove any associated discipline from
[plaintiff’s] personnel file.” (Plaintiff’s Exhibits 16 and 18.)
        {¶ 7} On September 5, 2001, plaintiff’s counsel replied to ODNR in a letter
stating in pertinent part that: “[a]s you are aware, the purpose behind the resignation
and settling this case without litigation was [to] avoid discussing this issue with future
prospective employers.            * * * It was my understanding that you would investigate
changing the remarks on the personnel action to ‘resignation’ instead of ‘resignation per
attached settlement agreement.’           This comment defeats the entire purpose of the
settlement in this matter. Since [plaintiff] is searching for another position, I do not wish
to impede her in any way.” (Plaintiff’s Exhibit 19.)
       {¶ 8} In a letter dated September 6, 2001, ODNR agreed to delete the
unacceptable language and to process a new personnel action form. (Plaintiff’s Exhibit
20.) On September 25, 2001, ODNR sent plaintiff’s counsel a copy of a new personnel
action form reflecting that plaintiff’s separation was deemed “resigned-regular.”            On
September 28, 2001, plaintiff’s counsel sent a copy of the revised personnel action form
to plaintiff and a letter stating that her file with counsel’s office had been officially closed.
(Plaintiff’s Exhibit 22.)
       {¶ 9} Plaintiff alleges that subsequent to the settlement agreement, she applied
for state employment but learned that the information that she was a probationary
removal was available to prospective employers. She maintains that she has been
stigmatized by such classification; that the stigma is virtually impossible to overcome for
the purposes of future state employment; and that, when such information is revealed
after she has related that she resigned from ODNR, she appears to be untruthful.
       {¶ 10} The crux of plaintiff’s case is that, notwithstanding the agreement to
remove the probationary removal documentation from her personnel file, the information
was posted on the Ohio Department of Administrative Services (ODAS) web-site then
known as EHOC (Employee History on Computer).                  Defendant contends that the
settlement did not include ODAS; that it had no authority to direct ODAS to delete the
probationary removal designation; that the settlement agreement referenced only
plaintiff’s personnel file; and that such file did not include an EHOC printout. Defendant
also argues that plaintiff failed to prove that the ODAS designation resulted in any injury
to her employment efforts subsequent to her departure from ODNR.
       {¶ 11} “The interpretation of a written contract is a question of law, absent patent
ambiguity.” P & O Containers, Ltd. v. Jamelco, Inc. (1994), 94 Ohio App.3d 726, 731.
As a general rule, the goal of the court in construing a written contract is to arrive at the
intent of the parties, which is presumed to be stated in the document itself. Foster
Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth., 78 Ohio St.3d
353, 1997-Ohio-202; Graham v. Drydock Coal Co., 76 Ohio St.3d 311, 1996-Ohio-393.
Where the terms of a contract are clear and unambiguous, the court cannot find
different intent from that expressed in the contract. E.S. Preston Assoc., Inc. v. Preston
(1986), 24 Ohio St.3d 7.
       {¶ 12} It is undisputed that the only contract terms at issue herein are set forth at
paragraph 7A of the settlement agreement, which reads as follows:               “Defendant
(ODNR) agrees remove any associated discipline from Plaintiff's personnel file and to
process a Personnel Action which reflects a resignation rather than a termination.”
(Plaintiff’s Exhibits 1.)
       {¶ 13} Two human resources representatives from ODNR testified at trial;
William McGarrity, Human Resources Director for ODNR’s Division of Watercraft and
Christine Smith, Human Resources Director for the Central Office of ODNR. Both Smith
and McGarrity testified regarding the contents of plaintiff’s personnel files which had
been maintained in their respective agencies.
       {¶ 14} McGarrity testified with respect to the documents that are typically kept in
an employee’s personnel file and identified the specific contents of plaintiff’s file from
the Division of Watercraft. McGarrity had personal knowledge of plaintiff’s removal and
testified that there were no disciplinary actions in her file and no references to her
probationary removal, because he had removed them from the Division of Watercraft’s
file after the settlement was completed. McGarrity also testified regarding the EHOC
system. He explained that when an employing agency such as ODNR prepares a
personnel action it is forwarded to ODAS and that agency enters the action on the
EHOC. He further related that because EHOC entries are considered public records,
employing agencies have no authority to delete entries that they have submitted to
EHOC. According to McGarrity, only ODAS may delete an entry and such actions
generally are not taken absent a court order. McGarrity testified that ODNR had never
requested that ODAS delete plaintiff’s, or any other, probationary removal entry.
McGarrity also testified that it is not customary that ODNR include an EHOC printout in
an employee’s personnel file and that there was no EHOC printout in plaintiff’s file.
       {¶ 15} Smith testified with regard to the contents of plaintiff’s ODNR personnel
file. As with the Division of Watercraft file, the central-office file did not contain an
EHOC printout. However, it is undisputed that the file did contain the settlement and
release agreement, the letter stating that plaintiff was removed during her probationary
period, and the personnel action form noting that she was removed during her
probation. Smith testified that because the file was over five years old, she had to
retrieve it from ODNR’s records retention storage facility in order to bring it to court.
Both Smith and McGarrity testified that they had no record of ever receiving either a
public records request for plaintiff’s personnel file or an inquiry for any documents from
her file.
        {¶ 16} Nancy Hetersheit, ODAS Human Resources Record Manager, testified
regarding the contents of plaintiff’s personnel file with that agency. (Plaintiff’s Exhibit 6.)
She related that as of the date of trial, the EHOC system continued to reflect that
plaintiff had been probationarily removed as of October 19, 2000. She further testified
that there had been instances when an EHOC entry had been deleted; however, she
stated that such action generally required a court order or settlement agreement
initiated by a state agency. Hetersheit stated that she did not personally have the
authority to delete any EHOC entries.      Jared Meadows, Director of Human Resources
at Twin Valley Behavioral Hospital, a state agency, testified that plaintiff was considered
for a position at his agency, but that he never requested or received her personnel file
from ODNR. He related that plaintiff had signed a form authorizing the release of her
employment history, and that he had then obtained the EHOC printout.                Meadows
stated that plaintiff was offered employment even after he learned that she had
originally been a probationary removal. Ultimately, Twin Valley rescinded its offer
because plaintiff was unable to begin work on the date it requested.
        {¶ 17} Lastly, Laren Knoll, plaintiff’s counsel during the settlement negotiations,
testified. Knoll related that the majority of her legal practice concerns employment cases
and that she has negotiated state employment cases on a number of occasions. She
stated that her understanding of the settlement agreement was that the EHOC
information would also be deleted from plaintiff’s records. According to Knoll, plaintiff’s
personnel file was not complete absent the EHOC data.
        {¶ 18} Upon review of the evidence, testimony, and arguments of counsel, the
court makes the following determination.
        {¶ 19} The parties’ dispute centers upon what comprised plaintiff’s “personnel
file.” The words in a contract shall be accorded their plain, ordinary meaning unless to
do so would create an absurd result. Alexander v. Buckeye Pipeline (1978), 53 Ohio
St.2d 241, 245. The court finds that the language in Paragraph 7A is clear and specific.
Thus, the court cannot find a different intent from that expressed in the contract. E.S.
Preston Assoc., Inc., supra. The language refers only to plaintiff’s personnel file with
ODNR, which includes its subdivision, the Department of Watercraft. ODAS was not a
party to the settlement negotiations, there is no mention of ODAS in the agreement, and
there is no mention of the computer data contained in the EHOC system. The court is
persuaded by the evidence that the EHOC is a separate compilation of data that is not a
part of employees’ personnel files with their particular state agencies.             Although
plaintiff’s counsel was diligent in obtaining a personnel action form that correctly
reflected the terms of the parties agreement, neither she nor defendant’s counsel
addressed the question whether the EHOC system should also be altered accordingly.
Thus, the court concludes that defendant did not breach its contract with plaintiff with
respect to removal of the probationary removal designation from ODAS records.
       {¶ 20} However, there is no dispute that ODNR central-office records contained
both the information that was the subject of plaintiff’s settlement agreement and her
counsel’s efforts to achieve a correct reflection of that agreement. The court finds that,
even if the file has never been requested, ODNR breached the settlement agreement by
retaining its records of plaintiff’s probationary removal in her central-office personnel file.
The court concludes that defendant is liable for breach of its agreement with respect to
those files.    Although there is no evidence that plaintiff sustained loss of any
employment opportunity as a result of such breach, the court finds that such evidence
was not required at the liability portion of the trial.
       {¶ 21} Plaintiff has also asserted a claim of intentional infliction of emotional
distress. In order to sustain such a claim, plaintiff must show that: “(1) defendant
intended to cause emotional distress, or knew or should have known that actions taken
would result in serious emotional distress; (2) defendant’s conduct was extreme and
outrageous; (3) defendant’s actions proximately caused plaintiff’s psychic injury; and (4)
the mental anguish plaintiff suffered was serious.” Hanly v. Riverside Methodist Hosp.
(1991), 78 Ohio App.3d 73, 82, citing Pyle v. Pyle (1983), 11 Ohio App.3d 31, 34.
       {¶ 22} To constitute conduct sufficient to give rise to a claim of intentional
infliction of emotional distress, the conduct must be “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized community.” Yeager v. Local Union 20,
Teamsters (1983), 6 Ohio St.3d 369, 375, quoting 1 Restatement of the Law 2d, Torts
(1965) 73, Section 46, Comment d.
       {¶ 23} Plaintiff contends that defendant’s conduct in failing to delete the
probationary removal information from her personnel files was extreme and outrageous
and caused her serious emotional distress. The court finds that none of defendant’s
conduct can reasonably be construed as intentional or reckless, nor does it rise to the
requisite level of severity or outrageousness to sustain this claim.                   Accordingly,
plaintiff’s intentional infliction of emotional distress claim must fail.
       {¶ 24} To the extent that plaintiff is claiming emotional distress damages as a
result of a breach of contract, the parties’ arguments on such issue are premature at
this juncture. However, under Ohio law, “[p]laintiffs cannot recover damages for
emotional distress from a breach of contract unless the contract or the breach is of such
a kind that ‘serious emotional disturbance’ was a particularly likely result.” Powell v.
Grant Med. Ctr., 148 Ohio App.3d 1, 10, 2002-Ohio-443, citing Kishmarton v William
Bailey Construction, Inc., 93 Ohio St.3d 226, 230, 2001-Ohio-1334. (Additional citations
omitted.) “[A]lthough ‘damages for emotional disturbance are not ordinarily allowed,’
there are two exceptional situations where such damages are recoverable, including (1)
when an emotional disturbance accompanies a bodily injury, and (2) when ‘the contract
or the breach is of such a kind that serious emotional disturbance was a particularly
likely result.’” Id. at 11 quoting 3 Restatement of the Law 2d, Contracts (1981) 149,
Section 353, Comment a.
       {¶ 25} The court finds that the contract in this case does not meet any of the
recognized exceptions that would allow plaintiff to recover for emotional distress.
       {¶ 26} For the foregoing reasons, the court finds that defendant breached its
settlement agreement with plaintiff with respect to ODNR’s retention of records of
plaintiff’s probationary removal, but not as to the EHOC data retained by ODAS.
Further, the court finds that plaintiff has failed to prove her claim of intentional infliction
of emotional distress. Judgment shall be entered accordingly.




                                                  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
STACIE A. JEFFERS

      Plaintiff

      v.

DEPARTMENT OF NATURAL RESOURCES

      Defendant
      Case No. 2006-04199

Judge Joseph T. Clark

JUDGMENT ENTRY




      This case was tried to the court on the issue of liability.        The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of plaintiff on her breach of contract claim
against the Ohio Department of Natural Resources with respect to the central-office
personnel file that it maintains. The case will be set for trial on the issue of damages
associated with that claim.
       Judgment is entered in favor of defendant on plaintiff’s claim of intentional
infliction of emotional distress, and her breach of contract claim concerning personnel
records retained by the Ohio Department of Administrative Services in its Employee
History On Computer system.




                                         _____________________________________
                                         JOSEPH T. CLARK
                                         Judge

cc:
Eric A. Walker                     W. Jeffrey Moore
Peter E. DeMarco                   326 South High Street, Suite 300
Assistant Attorneys General        Columbus, Ohio 43215-4570
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

LH/cmd
Filed November 20, 2009
To S.C. reporter January 5, 2010
