[Cite as Savage v. Ohio State Univ., 2014-Ohio-2504.]


                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Scott A. Savage,                                        :

                 Plaintiff-Appellant,                   :

v.                                                      :          No. 13AP-896
                                                              (Ct. of Cls. No. 2009-06575)
The Ohio State University,                              :
                                                             (REGULAR CALENDAR)
                 Defendant-Appellee.                    :


                                           D E C I S I O N

                                      Rendered on June 10, 2014


                 Thomas W. Condit, for appellant.

                 Michael DeWine, Attorney General, Randall W. Knutti and
                 Amy S. Brown, for appellee.

                             APPEAL from the Court of Claims of Ohio

TYACK, J.

        {¶ 1} Plaintiff-appellant, Scott A. Savage, is appealing from the granting of

immunity to two members of the faculty at The Ohio State University Mansfield Regional

Campus ("OSU Mansfield").                He assigns a single assignment of error for our

consideration:

                 THE TRIAL COURT IN FINDING THAT OSU FACULTY
                 MEMBERS HAMLIN AND KENNEDY DID NOT ACT
                 MALICIOUSLY IN THEIR TREATMENT OF SAVAGE AND
                 WERE THEREFORE ENTITLED TO IMMUNITY UNDER
                 R.C. §2743.02 AND R.C. §9.86.

        {¶ 2} The cited code sections read as follows:
No. 13AP-896                                                                     2


             (F) 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 that 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. The officer or employee may participate
             in the immunity determination proceeding before the court of
             claims to determine whether the officer or employee is
             entitled to personal immunity under section 9.86 of the
             Revised Code.

             The filing of a claim against an officer or employee under this
             division tolls the running of the applicable statute of
             limitations until the court of claims determines whether the
             officer or employee is entitled to personal immunity under
             section 9.86 of the Revised Code.

R.C. 9.86 reads:

             Except for civil actions that arise out of the operation of a
             motor vehicle and civil actions in which the state is the
             plaintiff, no officer or employee 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.

             This section does not eliminate, limit, or reduce any immunity
             from civil liability that is conferred upon an officer or
             employee by any other provision of the Revised Code or by
             case law. This section does not affect the liability of the state
             in an action filed against the state in the court of claims
             pursuant to Chapter 2743. of the Revised Code.
No. 13AP-896                                                                              3


       {¶ 3} In his brief, Savage asserts that the acts of the two faculty members were

malicious as a matter of law, not as a matter of fact. His argument is summarized in the

introduction to his brief as follows:

              This case involves the malice of radically pro-Homosexual
              faculty members who were permitted to drive a Christian
              librarian from his position at a public university – all
              because the faculty members would not tolerate a book
              selection discussion that they perceived as a challenge to
              their homosexual orthodoxy and to their "scholarship. "

       {¶ 4} Savage started the course of litigation by filing a lawsuit in the Richland

County Court of Common Pleas against four faculty members of OSU Mansfield.

However, state employees cannot be sued successfully in a common pleas court unless the

Court of Claims has made a finding that the state employees are not immune from a

lawsuit. Nease v. Med. College Hosp., 64 Ohio St.3d 396 (1992). Ultimately, suit was

filed by Savage in the Court of Claims which found the faculty members were immune.

Essentially, the litigation in state court ended as to the faculty members. On appeal,

Savage now questions those immunity findings "as a matter of law." Immunity of a state

employee is a question of law properly decided by the Court of Claims. See id. at 400.

       {¶ 5} The record before us on appeal includes two volumes of transcripts from the

evidentiary hearings on the immunity issues. The record also incudes a transcript from

the trial which followed in which OSU Mansfield was the only party. The evidence

produced subsequent to the immunity finding is not proper for us to consider in deciding

whether the court of claims was wrong in granting immunity. State ex rel. Duncan v

Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730 (1995); Sanders v. WAMCO, Inc., 10th

Dist. No. 10AP-548, 2011-Ohio-1336, ¶ 10. The Court of Claims cannot be faulted for

failing to consider evidence which had not been presented at the time it made its decision.
No. 13AP-896                                                                            4


       {¶ 6} The litigation filed by Savage arose out of an internal discussion of faculty

and staff at OSU Mansfield about a book or books which would be required reading for

freshmen at OSU Mansfield. Savage proposed four conservative books for consideration.

       {¶ 7} Savage's proposal was offensive to some of the others on the selection

committee, who viewed some of the books Savage proffered as denigrating homosexual

students and faculty. One of the committee members called one of the proffered books

"anti-gay" and "homophobic tripe."

       {¶ 8} Savage then chose to invite a person affiliated with the Foundation for

Individual Rights in Education (F.I.R.E) into the discussion.     Savage felt that other

committee members had also reached outside of the committee and invited others into

the discussion.

       {¶ 9} As the discussion heated up, Savage decided to withdraw from the book

selection committee. The issue did not die with Savage's withdrawal. A faculty member

who was not on the book selection committee had become aware of the list proffered by

Savage. That faculty member, now deceased, sent an e-mail to virtually everyone on

campus and attacked the book suggestions. The faculty member, who was gay, claimed

the suggestion of one of the books, "The Marketing of Evil," was a personal attack on him

and was a violation of OSU Mansfield's anti-discrimination policy. No immunity issues as

to this faculty member have been raised and no litigation in state court involving that

person's estate has been present.

       {¶ 10} After vigorous discussions at a faculty meeting, two other members of the

faculty initiated proceedings with OSU Mansfield's Human Resource Office ("HR").

Apparently, the initiation of these proceedings and the exhibits provided in conjunction
No. 13AP-896                                                                              5


with the initiation of the proceedings are the basis for Savage's claims of defamation and

intentional infliction of emotional distress and are the issues at the heart of the granting

of immunity.

       {¶ 11} Outside groups, including an entity called Allied Defense Fund ("ADF"),

waded in and issued publicity which brought national media attention to the controversy.

Savage was the person who got ADF involved.

       {¶ 12} As with most heated controversies, this one continued longer than it should

have. One of the faculty who initiated an HR complaint wanted Savage fired from his

position as a reference librarian.

       {¶ 13} Eventually Savage took a leave of absence and then followed it with his

resignation.

       {¶ 14} The trial court addressed the immunity issues simply and concisely:

               In addition, the court finds that plaintiff failed to prove, by a
               preponderance of the evidence, that the above-listed
               individuals acted with malicious purpose, in bad faith, or in a
               wanton or reckless manner toward the plaintiff. Although the
               charges of sexual harassment were ultimately determined to
               be without merit, the evidence does not support the
               conclusion that charges were made for an improper purpose.
               Accordingly, the above-mentioned individuals are entitled to
               immunity pursuant to R.C. 9.86 and 2743.02(F) and the
               courts of common pleas do not have jurisdiction over civil
               actions against them based upon the alleged actions in this
               case.

(Decision, at 5-6.)

       {¶ 15} This analysis is consistent with the guidance of the Supreme Court of Ohio

in Villella v. Waikem Motors, Inc., 45 Ohio St.3d 36 (1989), which states:

               [T]he defendant must have operated under "(1) that state of
               mind which is characterized by hatred, ill-will, or as spirit of
               revenge, or (2) a conscious disregard for the rights and safety
No. 13AP-896                                                                            6


              of other persons that has a great probability of causing
              substantial harm." Also, we have noted "that it is rarely
              possible to prove actual malice otherwise than by conduct
              and surrounding circumstances." Moreover, actual malice
              can be inferred from conduct and surrounding
              circumstances which may be characterized as reckless,
              wanton, willful or gross.

Id. at 37. (Citations omitted.)

       {¶ 16} The communication with HR was internal to OSU Mansfield and addressed

an issue of general concern on the campus. The discussions which followed were about

issues of what was best for the students, faculty and staff. We cannot say the discussions

or the conduct and surrounding circumstances were malicious "as a matter of law." A

university campus in particular should be a place where people can have heated

discussions about deeply held beliefs without hating each other.

       {¶ 17} The sole assignment of error is overruled. The judgment of the Court of

Claims of Ohio as to immunity for the two faculty members is affirmed.

                                                                     Judgment affirmed.

                          SADLER, P.J., and BROWN, J., concur.
