[Cite as Crawford v. Ohio Dept. of Edn., 2009-Ohio-7062.]

                                                          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




ANITA CRAWFORD

        Plaintiff

        v.

OHIO DEPARTMENT OF EDUCATION

        Defendant
        Case No. 2007-01657

Judge J. Craig Wright

DECISION




         {¶ 1} Plaintiff brought this action alleging claims of defamation, tortious
interference with her employment relationship, negligence, and bad faith.1 The issues
of liability and damages were bifurcated and the case proceeded to trial on the issue of
liability.
         {¶ 2} Plaintiff’s claims arise as a result of the termination of her employment
with the Cleveland Municipal School District (CMSD) after more than 25 years of
service. Plaintiff contends that she was fired because she filed a “buffered” (inflated)
annual school-bus transportation report based upon erroneous advice received from
Peter Japikse, an employee of defendant, the Ohio Department of Education (ODE).
The facts that form the basis of plaintiff’s claims are as follows.
         {¶ 3} In accordance with state law, Ohio school districts that incur student




         1
             By entry dated May 23, 2007, the court dismissed plaintiff’s claim of defamation.
transportation costs are entitled to receive funding from ODE.2 In order to obtain such
funding, the district must submit an annual “T-1” report reflecting the number of students
transported and the distance traveled on each route. ODE determines the level of
funding that the district will receive based upon the information provided in the T-1
reports. CMSD is one of the largest school districts in Ohio, providing transportation to
more than 20,000 students, and the funding it receives can surpass $10 million per
year.
        {¶ 4} The T-1 data at issue in this case was prepared for the 2004-2005 school
period. On November 4, 2004, CMSD timely filed its report. (Plaintiff’s Exhibit 20.)
Shortly thereafter, the district became the subject of intense media scrutiny, CMSD was
criticized for the manner in which it reported student ridership. It was alleged that the
district had overstated the number of students it transported and had thus obtained
more state funding than it was entitled to receive.
        {¶ 5} The media attention brought to light a conflict between ODE and CMSD
regarding interpretation of reporting requirements. Central to the controversy was a
portion of the general instructions included in the T-1 report which provided that: “[t]he
data for this report shall be the average number of pupils enrolled and regularly
transported during the first full week of October that school is in session. Students shall
be counted only once each day, regardless of how many vehicles they ride.                        It is
recommended that students be counted on their first conveyance.” (Emphasis added.)
As a result of the media focus, it became widely known that CMSD had for many years
based its reports upon the number of eligible bus riders, whereas ODE required that
actual headcounts of riders be conducted.
        {¶ 6} Subsequent to the unfavorable publicity, CMSD was directed to conduct a
five-day actual headcount of bus riders, and to file an amended T-1 report reflecting a
daily average of the week-long count tallied for each of its bus routes. At the time,
plaintiff was employed as Director of Transportation for CMSD, a position that she had
held since August 2004.3 In that capacity, plaintiff was responsible for overseeing the


        2
        It is undisputed that the pertinent requirements are set forth in R.C. Chapters 3327 and 3317,
and Ohio Adm.Code 3301-83.
       3
        Plaintiff began her employment with CMSD in 1979; she started as a security officer and
progressed through the ranks from that position.
preparation and submission of T-1 reports. Lou Marcellino,4 plaintiff’s transportation-
department manager, prepared the November 4, 2004 report. Marcellino prepared the
report in the same manner that he and the district had traditionally utilized; that is, he
relied upon the district’s “Edulog” database to obtain a count of all students eligible for
transportation. The Edulog system was a bus-routing program that compiled statistics of
students eligible for transportation, but did not track whether those students actually
rode the buses. CMSD personnel insisted that its reporting method was justified by
both the “enrolled and regularly transported” T-1 instruction language, and its duty to
provide a sufficient number of buses to transport all students who were eligible for, and
in need of, transportation.
       {¶ 7} At the time that the controversy arose, Japikse was employed as ODE’s
Associate Director of Pupil Transportation, a position he had held since 2000.5 One of
Japikse’s duties, along with his staff, was to collect and analyze the T-1 report data from
the school districts. In conjunction with ODE area coordinators, he and his staff also
provided assistance to school districts on transportation-related issues. In addition,
ODE provided training sessions as to the method for preparing T-1 reports. Japikse
insisted that, prior to the media controversy, he had never had reason to question
CMSD’s T-1 reports nor was he aware of any confusion among Ohio’s school districts
concerning reporting requirements. According to Japikse, the T-1 reporting instructions
referencing “the average number of pupils,” and the directions that students “be counted
only once each day”; and that students “be counted on their first conveyance,” clearly
communicated that an actual headcount was required.
       {¶ 8} In the process of preparing the amended report, several CMSD
employees, including plaintiff, had telephone conversations with Japikse. Two of those
employees, Omega Brown, Director of Human Resources, and Alan Seifullah, Director
of Communications, jointly placed a call to Japikse over a speaker-phone.                   Brown
explained to Japikse that CMSD had never conducted headcounts and that the district
wanted to ensure that it complied with ODE requirements. Brown also questioned how
the district was to account for students who were eligible to ride, but who were not using

       4
          Marcellino was employed by CMSD and participated in completion of T-1 reports from 1987 up
to the date of the reports at issue. His employment was also terminated.
        5
          Japikse’s entire career, which began in 1979, was in school district transportation.
the bus transportation at the time of the count. According to Brown and Seifullah, it was
during this conversation that the concept of a count buffer originated. Specifically, it
was alleged that Japikse responded to Brown’s inquiry by way of an analogy concerning
teachers setting up their classrooms to accommodate all their assigned students, but
also including a few extra seats for students who may join their classes later. Brown
interpreted that information as authorizing the addition of a buffer to the actual
headcounts that would be reported in the amended T-1.
       {¶ 9} Subsequent to the Brown/Seifullah telephone call, plaintiff had a
conversation with Japikse. Because Brown had instructed her to use a count buffer,
plaintiff raised the issue with Japikse. She specifically questioned whether the use of a
buffer was permitted inasmuch as it was not referenced in the T-1 instructions. Plaintiff
contends that Japikse responded by way of the same classroom analogy that he had
related to Brown and Seifullah. Plaintiff also interpreted her conversation with Japikse
as authorizing a buffered headcount. On January 31, 2005, CMSD filed its amended T-
1 report including a four-student buffer to the average daily headcounts for each bus
route. (Defendant’s Exhibit H.)
       {¶ 10} CMSD thereafter became the focus of renewed media attention. This time,
the district was accused of intentionally submitting an inflated report in order to defraud
ODE and the general tax-paying public. A particularly negative news report came out
on February 8, 2005. That same day, plaintiff sent an e-mail to Japikse explaining that
she believed that the T-1 report numbers were correct, but that certain students had
been reported incorrectly in various categories. She stated that: “I do believe that I
need to inform you that I need to make corrections to our report.” (Plaintiff’s Exhibit 1.)
       {¶ 11} The following day, Dr. Barbara Byrd-Bennett, CMSD’s Chief Executive
Officer, wrote to the Ohio Superintendent of Public Instruction, Dr. Susan Tave-Zelman,
both to address her concerns over the matter and to publicly affirm that the district
would work with ODE to prepare an accurate T-1 report.               (Plaintiff’s Exhibit 2.)
Additionally, Dr. Byrd-Bennett met with plaintiff and questioned her as to why a buffer
had been added to the T-1 report. After plaintiff related that the idea had originated with
and been confirmed by Japikse, Dr. Bryd-Bennet contacted Japikse to verify plaintiff’s
explanation of the matter. According to Dr. Byrd-Bennett, Japikse denied ever having
had a conversation with plaintiff. On February 11, 2005, plaintiff was notified that her
employment was terminated, effective immediately. (Plaintiff’s Exhibit 4.)
       {¶ 12} CMSD and ODE employees then worked together to create a third T-1
report for the 2004-2005 school year. Under the supervision of ODE personnel, CMSD
counted the students who actually rode on the buses and submitted those numbers,
without a buffer, on February 25, 2005. (Defendant’s Exhibit I.) In the following months,
both ODE and CMSD conducted comprehensive investigations into the circumstances
that gave rise to the T-1 reporting controversy. (Plaintiff’s Exhibits 11-12.) Ultimately,
plaintiff was cleared of any wrongdoing. In January 2006 plaintiff was reinstated to
employment, albeit to a different position, and received her full back-pay.
       {¶ 13} During her 11-month period of unemployment, plaintiff accessed her
retirement benefits in order to replace her lost income. She claims in general that
defendant is liable “for damages arising from [its] unlawful acts which resulted in
plaintiff’s being discharged and losing pension benefits.” She specifically maintains that
Japikse interfered with her business relationship with CMSD, that he was negligent in
providing guidance regarding ODE procedures and the interpretation of T-1 reporting
instructions, and that he acted in bad faith.
       {¶ 14} Upon review of the documentary evidence, the testimony, and the
arguments of counsel, the court finds for the following reasons that plaintiff failed to
prove her claims by a preponderance of the evidence.6
       {¶ 15} Tortious interference with a business relationship occurs when “a person,
without privilege to do so, induces or otherwise purposefully causes a third person not
to enter into or continue a business relationship with another.” Diamond Wine & Spirits
v. Dayton Heidelberg Distributing Co., Inc., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶23,
citing A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council,

       6
           At the close of the proceedings, the court announced that it was inclined to find in favor of
plaintiff, but expressed that it questioned whether there was any master-servant relationship between
CMSD and ODE to support such a conclusion. The parties were directed to address the issue in their
post-trial findings of fact and conclusions of law. The parties stated in those filings that they are in
agreement that no such relationship exists inasmuch as school districts are governed by school boards,
and function as independent political subdivisions, not as agents of ODE. As such, ODE had no authority
to direct CMSD with regard to hiring or firing decisions. See, generally, R.C. Chapters 3311 and 3313;
Avon Lake City School Dist. v. Limbach (1988), 35 Ohio St.3d 118, 122; Springfield Local Bd of Educ. v.
Summit County Bd of Revision (1994), 68 Ohio St.3d 493, 496; R.C. 2744.01(F). Accordingly, the issue
is not further addressed in this decision.
73 Ohio St.3d 1, 1995-Ohio-66. The elements of the tort are “(1) a business
relationship; (2) the tortfeasor’s knowledge thereof; (3) an intentional interference
causing a breach or termination of the relationship; and (4) damages resulting
therefrom.” Id. citing Geo-Pro Servs. Inc. v. Solar Testing Laboratories, Inc. (2001), 145
Ohio App.3d 514, 525. “‘Such interference must be intentional because Ohio does not
recognize negligent interference with a business relationship.’” Id. quoting Bauer v.
Commercial Aluminum Cookware Co. (2000), 140 Ohio App.3d 193, 199.
       {¶ 16} Plaintiff contends that Japikse knew or should have known that plaintiff’s
employment was in jeopardy when he spoke to Dr. Byrd-Bennett on February 9, 2005.
She contends that he intentionally interfered with her employment relationship in that he
knowingly misrepresented that he had not spoken with plaintiff or that he had authorized
the use of a count buffer.
       {¶ 17} The court heard the testimony of plaintiff, Brown, Seifullah, Dr. Byrd-
Bennett, and Japikse regarding circumstances that led to plaintiff’s termination. There
was no testimony to support the contention that Dr. Byrd-Bennett informed Japikse that
plaintiff’s job was in jeopardy when she spoke with him on February 9, 2005. Plaintiff as
much as admits the same in claiming only that Japikse “knew or should have known.”
However, the testimony also fails to support that contention. The most critical media
account of the CMSD reporting strategy had aired the day prior to the call. Dr. Byrd-
Bennett testified that she wanted to assure Japikse that she took the allegations very
seriously, and that she “would get to the bottom of” what was occurring or not occurring.
She did not relate to him that she was considering the termination of any person’s
employment.    In light of the efforts of both ODE and CMSD to address the many
concerns generated by the media scrutiny, it is reasonable to believe that the question
of one individual’s continued employment was not the focus of attention for either Dr.
Byrd-Bennett or Japikse during the conversation.
       {¶ 18} With respect to Japikse’s denial of his conversation with plaintiff, the
testimony established that on the day that he spoke with plaintiff he had attempted to
contact Brown regarding CMSD’s preparation of the amended T-1 report; however, his
call was routed to plaintiff. There was no evidence that Japikse and plaintiff had ever
had any previous contact. Plaintiff testified that when she answered the call, Japikse
told her that he was calling in response to media questions concerning the amended T-
1 report, and that he asked whether the report was being prepared in accordance with
the actual headcount requirement. At some point in that conversation, plaintiff raised
the issue of using a buffer. Based upon the totality of the testimony offered on this
issue, the court concludes that, if Japikse denied having a conversation with plaintiff, it
was more likely than not due to his failure to recall a conversation with a person he did
not ordinarily communicate with, or because it was not the conversation that he had
intended to have when he made the call. In short, the court is persuaded that Japikse
did not purposefully misrepresent that he had not had a conversation with plaintiff.
       {¶ 19} Regarding the allegations that Japikse authorized the use of a buffer by
way of his classroom analogy, the totality of the evidence makes clear that Japikse
made that analogy in response to questions regarding the routing of buses, and not the
required headcounts of student riders.         The question of routing became an issue
because CMSD had suffered a cut of $10 million from its transportation budget.
(Plaintiff’s Exhibit 2.) The cuts resulted in an extensive overhaul and revamping of
CMSD’s transportation operations, including the laying off of bus drivers and reductions
in the number of routes covered. The evidence established that CMSD staff asked
Japikse whether it should route each bus so that it was filled to maximum capacity, that
Japikse advised that maximum capacity was not the requirement but that, when routing
buses, extra seats could be left open for students who did not normally ride, or who
might enter the district mid-year. Japikse testified adamantly and quite credibly that
ODE had never used the term “buffer” or advised any school district to inflate its
averaged daily headcount of bus riders.            Inasmuch as Japikse’s employer was
responsible for allocating tax dollars to school districts, it defies logic that he or his staff
would advise that bus ridership be artificially inflated. In sum, the court is convinced
that there was no intentional misrepresentation of facts or interference with plaintiff’s
business relationship on the part of Japikse. Therefore, plaintiff’s claim of intentional
interference with her business relationship must fail.
       {¶ 20} Plaintiff has also asserted that defendant, through Japikse, was negligent
in providing advice and instruction, which resulted in the loss of her employment and
retirement benefits. However, “'[t]he well-established general rule is that a plaintiff who
has suffered only economic loss due to another’s negligence has not been injured in a
manner which is legally cognizable or compensable.'” Chemtrol Adhesives, Inc. v. Am.
Mfrs. Mut. Ins. Co. (1989), 42 Ohio St.3d 40, 45, quoting Nebraska Innkeepers, Inc. v.
Pittsburgh-Des Moines Corp. (1984), 345 N.W.2d 124, 126.                   (Additional citation
omitted.) See also Floor Craft Floor Covering, Inc. v. Parma Community General Hosp.
Ass’n (1990), 54 Ohio St.3d 1, 3. “Thus, where only economic losses are asserted,
damages may be recovered only in contract; there can be no recovery in negligence
due to the lack of physical harm to persons and tangible things.” RWP, Inc. v. Fabrizi
Trucking & Paving Co., Cuyahoga App. No. 87382, 2006-Ohio-5014, ¶21. (Additional
citations omitted.) Accordingly, plaintiff’s negligence claim must fail.
       {¶ 21} Finally, plaintiff asserts a generic claim of “bad faith.” The court is aware
of no statutory or case law authority, nor has plaintiff cited any, that supports a claim of
this nature absent a breach of a duty established by a particular contractual relationship.
See Motorists Mutual Ins. Co. v. Said, 63 Ohio St.3d 690, 695, 1992-Ohio-94.
Therefore, this claim also must fail.     For the foregoing reasons, judgment shall be
rendered in favor of defendant.




                                               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




ANITA CRAWFORD

      Plaintiff

      v.

OHIO DEPARTMENT OF EDUCATION

      Defendant
      Case No. 2007-01657
Judge J. Craig Wright

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 defendant. 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.



                                         _____________________________________
                                         J. CRAIG WRIGHT
                                         Judge

cc:


Christopher P. Conomy                       Robert E. Davis
Assistant Attorney General                  55 Public Square
150 East Gay Street, 18th Floor             1500 Illuminating Building
Columbus, Ohio 43215-3130                   Cleveland, Ohio 44113-1998


LH/cmd
Filed December 14, 2009
To S.C. reporter December 29, 2009
