[Cite as Alsup v. Univ. of Cincinnati, 2012-Ohio-6325.]




                                                           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



SHIRLEY A. ALSUP

        Plaintiff

        v.

UNIVERSITY OF CINCINNATI

        Defendant

Case No. 2010-04602

Judge Alan C. Travis

DECISION

        {¶ 1} Plaintiff brought this action alleging defamation.1 The issues of liability and
damages were bifurcated and the case proceeded to trial on the issues of liability and
the civil immunity of Andrea Lindell, Ph.D., dean of defendant’s College of Nursing.2
        {¶ 2} Plaintiff served as the academic administrator and director of defendant’s,
University of Cincinnati (UC), College of Nursing co-op program, which included
responsibility for management of the program’s relationships with three hospitals that
placed UC nursing students upon graduation. Plaintiff was hired to establish the co-op
program based, in part, on her experience working at University Hospital.
        {¶ 3} Plaintiff acknowledged that she had experienced conflicts with one of her
associate directors, Leigh Ann Pansch.                    According to plaintiff, Pansch had trouble
completing her duties as an associate director and her attendance had become an
issue. Pansch had communicated with Madeleine Martin, Ed.D., plaintiff’s supervisor




        1
          Although plaintiff asserted several additional claims in her complaint, the evidence and
arguments presented by plaintiff pertained only to defamation and whether Andrea Lindell, Ph.D. is
entitled to civil immunity.
and Assistant Dean of the college of nursing, regarding Pansch’s concern that her
professional relationship with plaintiff was “becoming hostile.”                   (Plaintiff’s Exhibit 7.)
Plaintiff testified that she worked with Pansch to resolve the difficulties; however,
Pansch subsequently filed a grievance regarding plaintiff’s management.                              Plaintiff
related that she was not aware of Pansch’s grievance and that she also filed a
grievance with defendant’s human relations department, which was not resolved during
her term of employment.
        {¶ 4} Dr. Martin testified that, beginning no later than August 2008, she met with
plaintiff to discuss her concerns about the co-op program and plaintiff’s performance.
Dr. Martin also met with plaintiff to discuss Pansch’s performance.                              Dr. Martin
documented meetings related to the co-op program and the specific issues and actions
taken as a result of the meetings. (Plaintiff’s Exhibit 5.) On March 6, 2009, Dr. Martin
informed Dean Lindell that her efforts to address issues relating to staff management
were not successful and that she would meet with plaintiff and Pansch before making a
recommendation to Dean Lindell regarding “the next step where some more formal
action or decision” would occur. Id.
        {¶ 5} On March 16, 2009, plaintiff was asked to attend a meeting with Dr. Martin.
Upon her arrival, plaintiff discovered that Dean Lindell and representatives from
defendant’s human resources department were also in attendance. Plaintiff was asked
to read and sign a letter which informed her that she was being terminated from her
employment for cause. (Plaintiff’s Exhibit 15.) According to the letter, plaintiff failed “to
facilitate a positive working environment” and created “a negative impact with the
contracted clinical agencies.”             Plaintiff testified that she was “shocked” by the
termination, but she told Drs. Martin and Lindell that she wished the program well. It is
undisputed that plaintiff was an at-will employee at the time of the termination.
        {¶ 6} A few days after her employment was terminated, plaintiff spoke with
Rebecca Litchholt, a student in the program. Plaintiff informed Litchholt that she was
told she had been fired for being an ineffective leader. To show support for plaintiff,
Litchholt circulated a petition among students and faculty. The petition prompted Dean
Lindell to meet privately with Litchholt and also to hold a second meeting with co-op


        2
           Plaintiff’s April 12, 2012 unopposed motion for an extension of time to file her post-trial brief is
GRANTED. Plaintiff’s motion to strike portions of Defendant’s Exhibit B, which was incorporated in
plaintiff’s May 4, 2012 reply brief, is DENIED.
students and faculty. Litchholt testified that, at the initial meeting, Dean Lindell stated
that defendant had been “collecting data” and investigating plaintiff. Litchholt recalled
that at the second meeting with students and faculty, Dean Lindell stated that plaintiff
had been under investigation for a period of one to two years. Sally Dunn, a faculty
member who attended the second meeting, testified that she also heard Dean Lindell
state that plaintiff had been under investigation for one and a half to two years.
According to Dunn, Dean Lindell’s statement that plaintiff had been under investigation
“took the air out of the room.”       Although Dean Lindell’s statement elicited more
questions, she stated that she could not discuss specific details regarding the decision
to fire plaintiff.


DEFAMATION
        {¶ 7} Plaintiff alleges that Dean Lindell’s statement that plaintiff had been under
investigation for one and a half to two years was defamatory. Plaintiff testified that she
was humiliated and became severely depressed. According to plaintiff, the defamatory
comments affected her marriage and damaged her professional reputation.
        {¶ 8} Defamation is the publication of a false statement “‘made with some degree
of fault, reflecting injuriously on a person’s reputation, or exposing a person to public
hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or
her trade, business or profession.’” Jackson v. Columbus, 117 Ohio St.3d 328, 2008-
Ohio-1041, ¶ 9, quoting A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. &
Constr. Trades Council, 73 Ohio St.3d 1, 7, 1995-Ohio-66. “Slander” refers to spoken
defamatory words, while “libel” refers to written or printed defamatory words. Id.
        {¶ 9} Inasmuch as plaintiff is not a public figure, in order for her to prevail on a
defamation claim she 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.’” Northeast Ohio Elite Gymnastics Training Ctr.,
Inc. v. Osbourne, 183 Ohio App.3d 104, 109, 2009-Ohio-2612, quoting Gosden v. Louis,
116 Ohio App.3d 195, 206 (1996).
        {¶ 10} 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., 134 Ohio St. 78, 84 (1938). 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., 4th Dist. No. 06CA3121, 2007-Ohio-3708, at ¶ 13.
       {¶ 11} The court finds that plaintiff has proven, by a preponderance of the
evidence, that Dean Lindell stated that plaintiff had been under investigation for one and
a half to two years. Both Litchholt and Dunn testified that they were certain that Dean
Lindell made the statement to the group of students and faculty. The court finds that the
testimony of Litchholt and Dunn was credible. Furthermore, plaintiff received email from
other students who recalled that Dean Lindell stated that plaintiff was under
investigation.
       {¶ 12} The alleged defamatory statement in this case is slanderous per se
inasmuch as the statement “under investigation for one and a half to two years”
arguably tends to injure plaintiff’s employment in her chosen occupation or profession.
Mary Hill, M.D., testified that she had worked with plaintiff for approximately 12 years
and that plaintiff’s reputation in the medical community was “flawless” prior to the
incident. According to Dr. Hill, plaintiff had great difficulty finding another job, which Dr.
Hill attributed to harm to plaintiff’s reputation as a result of Dean Lindell’s statement that
plaintiff had been under investigation. Inasmuch as such statements are slanderous per
se, plaintiff is relieved of the burden of proving special damages.
       {¶ 13} Defendant has asserted the defense of qualified privilege. “A qualified or
conditionally privileged communication is one made in good faith on any subject to
which the person communicating has an interest, or in reference to which he has a right
or duty, if made to a person having a corresponding interest or duty on a privileged
occasion and in a manner and under circumstances fairly warranted by the occasion
and duty, right or interest. The essential elements thereof are 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.” Hahn v. Kotten, 43 Ohio St.
2d 237, 243-244 (1975); Burkes v. Stidham, 107 Ohio App. 3d 363, 373 (1995). Once a
qualified privilege is shown, falsity and actual malice must be demonstrated with
convincing clarity in order to recover. Burkes, at 373. With regard to qualified privilege,
“actual malice” has been defined as “[a]cting with knowledge that the statements are
false or acting with reckless disregard as to their truth or falsity.” Jacobs v. Frank, 60
Ohio St.3d 111 (1991), paragraph two of the syllabus.
      {¶ 14} Dean Lindell testified in her deposition that plaintiff was not under
investigation. (Plaintiff’s Exhibit 21, page 48, lines 19-20.) Inasmuch as Dean Lindell
made the statement with knowledge that it was false, the communication was not
privileged. Such statements would likely cause plaintiff to be ridiculed, shamed, or held
in contempt. Therefore, the statement was both false and defamatory.


CIVIL IMMUNITY
      {¶ 15} R.C. 9.86 provides, in part: “[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.” (Emphasis added.)
      {¶ 16} The issue whether an employee is entitled to immunity is a question of law.
Nease v. Medical College Hosp., 64 Ohio St.3d 396, 1992-Ohio-97, citing Conley v.
Shearer, 64 Ohio St.3d 284, 292, 1992-Ohio-133. The question whether the employee
acted outside the scope of their employment, or with malicious purpose, in bad faith, or
in a wanton or reckless manner is one of fact. Tschantz v. Ferguson (1989), 49 Ohio
App.3d 9.   Plaintiff bears the burden of proving that the state employee should be
stripped of immunity. Fisher v. University of Cincinnati Med. Ctr., 10th Dist. No. 98AP-
142 (Aug. 25, 1998).
      {¶ 17} In the context of immunity, an “employee’s wrongful act, even if it is
unnecessary, unjustified, excessive or improper, does not automatically take [such] act
manifestly outside the scope of employment.” Elliott v. Ohio Dept. of Rehab. & Corr., 92
Ohio App.3d 772, 775 (1994), citing Thomas v. Ohio Dept. of Rehab. & Corr., 48 Ohio
App.3d 86, 89 (1988). “It is only where the acts of state employees are motivated by
actual malice or other such reasons giving rise to punitive damages that their conduct
may be outside the scope of their state employment.” James H. v. Dept. of Mental
Health and Mental Retardation, 1 Ohio App.3d 60, 61 (1980). “The act must be so
divergent that it severs the employer-employee relationship.” Elliott, supra.
       {¶ 18} Although the court has found that Dean Lindell acted with actual malice for
the purposes of plaintiff’s defamation claim, “actual malice” in that context does not
equate with “actual malice” in the context of immunity.               “Malicious purpose
encompasses exercising ‘malice,’ which can be defined as the willful and intentional
design to do injury, or the intention or desire to harm another, usually seriously, through
conduct that is unlawful or unjustified. Bad faith has been defined as the opposite of
good faith, generally implying or involving actual or constructive fraud or a design to
mislead or deceive another. Bad faith is not prompted by an honest mistake as to one’s
rights or duties, but by some interested or sinister motive. Finally, reckless conduct
refers to an act done with knowledge or reason to know of facts that would lead a
reasonable person to believe that the conduct creates an unnecessary risk of physical
harm and that such risk is greater than that necessary to make the conduct negligent.
The term ‘reckless’ is often used interchangeably with the word ‘wanton’ and has also
been held to be a perverse disregard of a known risk.” Caruso v. State, 136 Ohio
App.3d 616, 620-621 (2000). (Internal citations omitted.)
       {¶ 19} In Caruso, the Tenth District Court of Appeals determined that a state-
employed doctor’s threat to slap an employee, followed by a touch on the arm to move
the employee so the doctor could close the office door, did not rise to the level of
“recklessness” and that the alleged assault was not committed simply to gratify his own
personal feelings of animosity and resentment. Rather, the court determined that the
conduct was “in some, albeit, misguided        way,   for the purpose of facilitating the
business for which the doctor was engaged.” Id. at 622. Thus, the court concluded that
the doctor’s conduct was not manifestly outside the scope of his employment and that
he was entitled to immunity.
       {¶ 20} The evidence establishes that Dean Lindell did not use the term “under
investigation” to gratify her own personal feelings of animosity and resentment. The
court finds that the statements Dean Lindell made to the assembled students and
faculty did not constitute malicious purpose, bad faith or recklessness as contemplated
for the purposes of immunity.       The court is also convinced that Dean Lindell’s
statements to the students and faculty were made for the purposes of both addressing
concerns raised in the petition and maintaining the integrity of the co-op program. Thus,
the court concludes that Dean Lindell acted in the interest of UC. As such, her conduct
was not manifestly outside the scope of her employment and she is entitled to civil
immunity.
      {¶ 21} For the foregoing reasons, judgment shall be rendered in favor of plaintiff.
                                               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



SHIRLEY A. ALSUP

      Plaintiff

      v.

UNIVERSITY OF CINCINNATI

      Defendant

Case No. 2010-04602

Judge Alan C. Travis

JUDGMENT ENTRY

       {¶ 22} 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.
       {¶ 23} The court finds that Andrea Lindell, Ph.D., is 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 her based upon the
allegations in this case.
       {¶ 24} A case management conference is scheduled for August 30, 2012, at 1:30
p.m., to discuss further proceedings.


                                           _____________________________________
                                           ALAN C. TRAVIS
                                           Judge
cc:
Allan Showalter                     Dale A. Stalf
Assistant Attorney General          Kevin K. Frank
Executive Agencies Section          600 Vine Street, Suite 2500
30 East Broad Street, 26th Floor    Cincinnati, Ohio 45202
Columbus, Ohio 43215

Randall W. Knutti
Assistant Attorney General
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130
004
Filed July 31, 2012
To S.C. Reporter January 16, 2013
