[Cite as Webber v. Ohio Dept. of Public Safety, 2017-Ohio-2695.]




ALICE WEBBER                                           Case No. 2015-00449

       Plaintiff                                       Judge Patrick M. McGrath
                                                       Magistrate Anderson M. Renick
       v.
                                                       DECISION
OHIO DEPARTMENT OF PUBLIC
SAFETY

       Defendant



        {¶1} On August 17, 2016, the court issued an entry which granted, in part,
defendant’s motion for judgment on the pleadings and dismissed plaintiff’s claims based
upon civil conspiracy, both intentional and negligent infliction of emotional distress, and
negligent supervision.         On February 13, 2017, defendant filed both a motion for
summary judgment pursuant to Civ.R. 56(B) on plaintiff’s defamation claim and any
immunity issues and a motion for leave to file a long supporting brief. On March 3,
2017, plaintiff filed a response.               On March 13, 2017, defendant filed both a
supplemental memorandum in support of its motion for summary judgment and a
motion for leave to file the same. Defendant’s February 13, 2017 and March 13, 2017
motions for leave are GRANTED.                     Plaintiff’s March 20, 2017 motion to strike
defendant’s March 13, 2017 motions is DENIED. The motion for summary judgment is
now before the court for a non-oral hearing.
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
Case No. 2015-00449                           -2-                                DECISION


stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
       {¶4} At all relevant times, plaintiff was employed as an Assistant Director of the
Lorain County Emergency Management Agency (LCEMA). In May 2014, a flooding
event occurred in Lorain County. At the time, Tom Kelly, the LCEMA director, was out
of state and plaintiff was in charge of coordinating the agency’s response. Cathy Deck
and Leslie Bricker, liaisons for the Ohio Emergency Management Agency (OEMA),
traveled to Lorain County to assist LCEMA.            Defendant’s director, Nancy Dragani,
requested information for the Governor’s office and OEMA employees obtained
information from Deck and Bricker which had been recorded in “street sheets” by county
employees who had surveyed the flood damage. The street sheets documented the
preliminary damage assessment (PDA).              Thereafter, defendant’s employee, Brigitte
Bouska was directed by her supervisor, Laura Adcock, to review the street sheets.
Bouska became concerned that some of the information in the street sheets was
incorrect when, among other things, she noticed that all residents in one area had
allegedly reported that they had flood insurance, even though she knew that many Ohio
residents did not carry flood insurance. Bouska asked Deck to verify certain information
and Deck contacted plaintiff for clarification.
       {¶5} Plaintiff called Bouska to provide additional information and, during the
telephone conversation, Bouska asked plaintiff about areas that were not assessed.
According to Bouska, plaintiff related that the area affected by the flooding had included
“vulnerable populations,” such as low-income, minority, and disabled residents. Bouska
Case No. 2015-00449                         -3-                               DECISION


advised Adcock that she was concerned that information about certain areas had not
been accurately represented on the street sheets. Bouska informed Adcock that at
least one of the areas that was not assessed or reported on the street sheets had
“Spanish speaking residents.” Adcock directed Bouska to go to Lorain County and
complete the PDA.      Adcock spoke to plaintiff and requested a Spanish-English
translator to assist Bouska in completing the PDA.
      {¶6} After Director Dragani learned of the situation in Lorain County, she
discussed the matter with Deputy Director, Sima Merick, and based upon their concern
about Deck and Bricker’s work on the PDA, they referred the matter to the
Administrative Investigations Unit (AIU).    The investigations supervisor in the AIU,
Kathleen Botos, opened an investigation concerning the conduct of Deck and Bricker
during the Lorain County flooding event. Botos prepared a report that summarized the
investigation. (Defendant’s Exhibit 1.) During the investigation, Botos learned that the
telephone conversation between Bouska and plaintiff had been recorded. After listening
to the recording, Botos determined that plaintiff’s reference to Spanish-speaking
residents concerned an area which had been assessed and that plaintiff had not stated
that the areas that were not referenced on the street sheets had not been assessed
because the residents spoke Spanish. Botos confronted Bouska about the discrepancy
between her statement and the recording, but Bouska continued to maintain that she
had accurately communicated her recollection of her conversation with plaintiff.
      {¶7} According to Dragani, she investigated the conduct of Deck and Bricker and
plaintiff was never the subject of her investigation. During her investigation, Dragani
learned that Deck and Bricker denied hearing plaintiff make any inappropriate
comments about race, ethnicity, or the ability to speak English. As a result of the
investigation it was determined that there were no communities that were not assessed
due to any language barrier and that Bouska misstated what plaintiff had reported to her
in their telephone conversation. Dragani concluded that Bouska had not acted in a
Case No. 2015-00449                        -4-                                DECISION


malicious manner when she reported her concerns about the areas that were not
assessed. However, Dragani determined that Bouska did not exercise due diligence in
her review of the allegations.

Defamation
       {¶8} In her second amended complaint, plaintiff states that defendant’s
employee, Bouska, provided false and defamatory statements to entities or individuals,
including Adcock, Dragani, Andrew Elder, and Merick. Specifically, plaintiff alleges that
the statements accused plaintiff of being discriminatory and racist for failing to perform
her job duties based upon the ethnicity of the residents.         Plaintiff also seeks a
determination whether Bouska, Adcock, Dragani, Elder, and Merick are entitled to civil
immunity pursuant to R.C. 2743.02(F) and 9.86.
       {¶9} “To prevail on a defamation claim, whether libel or slander, a plaintiff must
prove the following elements: (1) a false statement, (2) about the plaintiff, (3) was
published without privilege to a third party, (4) with fault of at least negligence on the
part of the defendant, and (5) the statement was either defamatory per se or caused
special harm to the plaintiff.” Schmidt v. Northcoast Behavioral Healthcare, 10th Dist.
Franklin No. 10AP-565, 2011-Ohio-777, ¶ 8.
       {¶10} “To constitute defamation per se, the ‘words must be of such a nature that
courts can presume as a matter of law that they tend to degrade or disgrace the person
of whom they are written or spoken, or hold him up to public hatred, contempt or scorn.’
Moore v. P.W. Publishing Co. (1965), 3 Ohio St.2d 183, 188, 209 N.E.2d 412. A
statement is defamation per se if it “tends to injure a person in his or her trade,
profession, or occupation * * * [and] both damages and actual malice are presumed to
exist.” Knowles v. Ohio State Univ., 10th Dist. Franklin No. 02AP-527, 2002 Ohio 6962;
Lennon v. Cuyahoga Cnty. Juvenile Court, 8th Dist. Cuyahoga No. 86651, 2006-Ohio-
2587, ¶ 25.
Case No. 2015-00449                          -5-                                DECISION


       {¶11} Defendant contends that plaintiff cannot establish a claim for defamation
because the alleged comments are not actionable and constitute mere opinion.
Defendant cites a series of cases from other jurisdictions where courts have held that, in
particular circumstances, defamation claims cannot be predicated upon accusations of
racism. See Stevens v. Tillman, 855 F.2d 394, 400-402 (7th Cir. 1988) (concluding
accusation of racism was not actionable because it was an opinion). However, the
court notes that Ohio courts have determined that “[b]eing referred to as a racist may, at
times, constitute defamation per se.” Lennon at ¶ 28.
       {¶12} The Tenth District Court of Appeals has observed that Ohio has adopted
the “innocent construction rule.” Sweitzer v. Outlet Communications, Inc. 133 Ohio
App.3d 102, 112 (10th Dist.1999). Under the innocent-construction rule, “if an utterance
is reasonably susceptible to both a defamatory and an innocent meaning, as a matter of
law, the innocent meaning is to be adopted.” Id.
       {¶13} Plaintiff claims that Bouska uttered defamatory statements alleging that
plaintiff did not perform her job duties because of bias or prejudice regarding “Spanish
people” in the communities that were being assessed. Defendant argues that such
statements do not impute bigotry to plaintiff and that an equally innocent construction is
that the community was not assessed for damages because there may have been a
language barrier in the Spanish-speaking community. The court agrees.
       {¶14} In her deposition, plaintiff testified that she was aware that at least part of
the area that was being assessed had Spanish-speaking residents.                 (Plaintiff’s
deposition, pages 115-116).       Plaintiff also acknowledged that she was asked by
defendant’s employees about the availability of a Spanish-English interpreter to assist
with the assessment. Plaintiff admitted that she was not aware of anyone who had
directly accused her of being a racist as a result of either the incident or the subsequent
investigation. (Plaintiff’s deposition, page 138.)
Case No. 2015-00449                          -6-                                  DECISION


       {¶15} Considering the context from which the statements arose, the court finds
that, there is a reasonable innocent construction and, therefore, this construction must
be adopted. Accordingly, the court finds that, as a matter of law, the statements at
issue are not defamatory and plaintiff cannot prevail on her defamation claim.

Civil Immunity
       {¶16} Plaintiff also seeks a determination whether Bouska, Adcock, Dragani,
Elder, and Merick are entitled to civil immunity pursuant to R.C. 2743.02(F) and 9.86.
       {¶17} R.C. 2743.02(F) states, in part:
       {¶18} “A civil action against an officer or employee, as defined in section 109.36
of the Revised Code, that alleges that the officer’s or employee’s conduct was
manifestly outside the scope of the officer’s or employee’s employment or official
responsibilities, or that the officer or employee acted with malicious purpose, in bad
faith, or in a wanton or reckless manner shall first be filed against the state in the court
of claims, which has exclusive, original jurisdiction to determine, initially, whether the
officer or employee is entitled to personal immunity under section 9.86 of the Revised
Code and whether the courts of common pleas have jurisdiction over the civil action.”
       {¶19} R.C. 9.86 states, in part:
       {¶20} “[N]o officer or employee [of the state] shall be liable in any civil action that
arises under the law of this state for damage or injury caused in the performance of his
duties, unless the officer’s or employee’s actions were manifestly outside the scope of
his employment or official responsibilities, or unless the officer or employee acted with
malicious purpose, in bad faith, or in a wanton or reckless manner.”
       {¶21} In its motion for summary judgment, defendant presented evidence to show
that, at all times relevant to this action, its employees acted within the scope of their
employment and without malicious purpose, in bad faith, or in a wanton or reckless
manner. Plaintiff’s response to the motion for summary judgment failed to present any
evidence or legal argument to support a finding that defendant’s employees are not
Case No. 2015-00449                        -7-                               DECISION


entitled to civil immunity. Therefore, the court finds that that Bouska, Adcock, Dragani,
Elder, and Merick are entitled to immunity pursuant to R.C. 9.86 and 2743.02(F) and
that the courts of common pleas do not have jurisdiction over any civil actions that may
be filed against them based upon the allegations in this case.
      {¶22} For the foregoing reasons, the court finds that there are no genuine issues
of material fact and that defendant is entitled to judgment as a matter of law.
Accordingly, defendant’s motion for summary judgment shall be granted.




                                                 PATRICK M. MCGRATH
                                                 Judge
[Cite as Webber v. Ohio Dept. of Public Safety, 2017-Ohio-2695.]




ALICE WEBBER                                           Case No. 2015-00449

       Plaintiff                                       Judge Patrick M. McGrath
                                                       Magistrate Anderson M. Renick
       v.
                                                       JUDGMENT ENTRY
OHIO DEPARTMENT OF PUBLIC
SAFETY

       Defendant



        {¶23} A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment.              For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. The court finds that Brigitte Bouska, Laura Adcock,
Nancy Dragani, Andrew Elder, and Sima Merick are entitled to immunity pursuant to
R.C. 9.86 and 2743.02(F) and that the courts of common pleas do not have jurisdiction
over any civil actions that may be filed against them based upon the allegations in this
case. Court costs are assessed against plaintiff. The clerk shall serve upon all parties
notice of this judgment and its date of entry upon the journal.




                                                         PATRICK M. MCGRATH
                                                         Judge

cc:
John J. Gill                                           Velda K. Hofacker
7081 Pearl Road                                        Assistant Attorney General
Middleburg Heights, Ohio 44130                         150 East Gay Street, 18th Floor
                                                       Columbus, Ohio 43215-3130
Filed March 31, 2017
Sent to S.C. Reporter 5/5/17
