Inflammatory Investigation Report Produced in Public Records Request Can Create Liability for Defamation

Last week, the Franklin County Court of Appeals issued a decision concerning the never-ending saga involving the Engineering Department plagiarism scandal at Ohio University. Mehta v. Ohio Univ., 2011-Ohio-3484. In a case brought by a different plaintiff and attorney in federal court, the Sixth Circuit held in 2009 that the plaintiff was entitled to a public name-clearing hearing after the University released a report concerning his culpability which he disputed and which did not present his side of the story. The Mehta case presented a straight-forward claim of defamation based on the same report and circumstances, which the Court of Claims had dismissed following a bench trial on the grounds that the statements were constitutionally protected opinion. The Court of Appeals reversed in part. Troubling for public employers, the Court found that the University could be liable for the defamatory investigative report simply for producing it as required by Ohio law in response to a public records request.

According to the decision, three separate investigations were conducted by the University after a student raised a concern in 2004 about plagiarism. The first investigation concluded that it had no jurisdiction because the allegations concerned former students. The second investigation did little more than categorize the types of plagiarism alleged and make recommendations. The third investigation was conducted by two administrators and is the focus of the litigation. Neither had been trained in what constituted plagiarism. Their draft report contained what the Dean perceived as “inflammatory and inappropriate content.” Although the Provost requested that they tone it down, they refused. Nonetheless, the Provost handed out the draft report to the media during a subsequent press conference about the scandal. Among other things, the draft report referred to “rampant and flagrant plagiarism.” The plaintiff was removed from graduate advising duties, but the Dispatch reported that he had been fired (purportedly because that is what the legal affairs director reported).

The Court of Claims found that the challenged defamatory statements constituted protected opinion and, thus, were not actionable. The Court of Appeals disagreed and found the following statements were capable of proof, rather than mere opinion, and that “a reasonable reader would perceive the specific language as a factual assertion that appellant failed to perform his duties as an advisor”:

• "faculty members who either failed to monitor the writing in their advisees' theses or simply ignored academic honesty, integrity and basically supported academic fraudulence."
• faculty members "blatantly [chose] to ignore their responsibilities by contributing to an atmosphere of negligence toward issues of academic misconduct in their own department."

“Because [the authors] implied that they had first-hand knowledge of facts supporting their conclusions, the statements in the [their] Report are verifiable.” Although it was a close call about whether the Report was the author’s opinion (in light of the self-righteous tone, flamboyant phrases, and impassioned pleas), the Court ultimately concluded that the Report purported to reflect a thorough and factual investigation, not merely a call to action.

Finally, the Court was persuaded that the University intended the Report to reflect a factual investigation because it was released to the media with a press release. It later rejected the Court of Claims finding that the report was not actionable as a matter of law because it had been produced pursuant to a public records request. While not discussing whether any qualified privilege exists, it rejected any argument that there is a blanket privilege from defamation for public records.

The University then raised qualified privilege issues (i.e., matters of public concern, etc.) which the Court refused to consider on appeal. The Court of Claims never considered those issues when it dismissed on grounds or constitutionally protected opinion. Therefore, the Court of Claims would need to consider the qualified privilege issues when the matter is remanded for further consideration.

With respect to the statement by a University attorney that the plaintiff had been fired, the Court of Claims determined that neither the reporter nor the attorney seemed to have a clear memory of the issue, but the attorney denied that he would have made any statement like that which was not true. Accordingly, the Court found that there was insufficient proof that the statement had been made to the reporter as alleged.

In that this case has been remanded, we can look forward to another opinion in the future on the scope of the claimed qualified privileges.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court: Courtesy Faculty Appointment Does Not Confer Sovereign Immunity

This morning, a unanimous Ohio Supreme Court rejected the sovereign immunity defense raised by a physician who held a courtesy clinical appointment by a state medical college and who permitted a medical student to observe the allegedly negligent medical procedure because the state college exercised no control over the physician. Engel v. Univ. of Toledo College of Medicine, Slip Opinion No. 2011-Ohio-3375. The Court focused on the volunteer nature of the clinical appointment, lack of formal employment relationship and fact that the physician was in private practice and had privileges only in a private hospital. Therefore, the plaintiff could not bring a medical malpractice claim against the medical college and was limited to the physician’s private malpractice insurance.

The original malpractice claim was brought in common pleas court against the physician arising out of two allegedly negligent surgeries performed by the physician. The physician held a courtesy clinical faculty appointment at the nearby state medical college and was being observed during the surgeries by a third-year medical student on a one-month rotation. In the malpractice lawsuit, the physician raised the defense of sovereign immunity under Ohio Revised Code § 9.86 because he had been acting as a clinical faculty instructor at the time of the challenged surgeries. While the trial court stayed the common pleas action, the plaintiff then filed a malpractice action in the Court of Claims against the medical college and also sought a declaration of the physician’s immunity. The Court of Claim confirmed the physician’s immunity and this was affirmed by the Franklin County Court of Appeals. The Supreme Court reversed.

Pursuant to O.R.C. § 9.86:

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.

A court’s analysis is generally focused on whether the defendant is an employee or officer and whether he or she was acting outside the scope of employment, etc. Whether an individual is a state employee is determined by reference to O.R.C. § 109.36, subsection (a) of which provides that a defendant is covered if he is “[a] person who, at the time a cause of action against the person arises, is serving in an elected or appointed office or position with the state or is employed by the state.”

Clearly, the physician was not elected or appointed to an office. However, prior decisions had not examined the employment status of physicians in any detail. The Court declined to announce a specific test for physicians, but stated that it would consider the following factors:
• The contractual relationship between the state and the individual;
• State control over the individual;
• Whether he received any tangible benefits from his courtesy appointment; and
• Whether the individual was paid by the state or affiliated entity.

In this case, the courtesy faculty appointment of the physician was unpaid, and there was no evidence that he had been hired or credentialed by the medical college. The medical college had no control over the private medical practice of the physician. While the courtesy faculty appointment subjected the physician to unspecified rules and policies of the college, he was not permitted to use his academic title in connection with any published research without the explicit and discretionary authority of the college department chair. The physician did not receive any office space or assigned staff or equipment, research projects, clinical privileges or lecturing responsibilities. Therefore, there were insufficient indications of an employment relationship with the state which was necessary to justify immunity.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Associational ADA Claim Which Lacked Prima Facie Evidence of Causation

Earlier this month, the Sixth Circuit rejected an ADA associational claim brought by a terminated manager. Stansberry v. Air Wisconsin Airlines Corporation, No. 09-2499 (6^th Cir. 7/6/11). In that case, the plaintiff alleged that he had been terminated on account of his wife being disabled. However, the Court agreed that summary judgment for the employer was appropriate because the plaintiff had not shown any causal link between his termination and his wife's disability. There was no evidence showing that the employer was influenced by her medical expenses, by fear of contagion or his potential distraction. Therefore, the Court need not reach the issue of pretext created by evidence that the employer lied about why the plaintiff had been fired.

The plaintiff was a long-time employee with years of successful performance evaluations. His wife had been ill for a number of years with a serious autoimmune disease (which was not contagious). In Spring 2007, her condition worsened, but the employer's health plan announced that it was refusing to pay for the recommended treatment after July. The plaintiff began appealing that decision. In the meantime, the number of employees for which he was responsible to supervise doubled and the new employees made a number of significant mistakes. In addition, the plaintiff was not getting along well with his immediate supervisor, the regional manager, and he had threatened to resign in June. After the TSA notified the employer in June about several security violations by the new employees (which the plaintiff had failed to report to the regional manager), the employer promised the TSA that disciplinary action would be taken. A termination letter was prepared in advance, but the regional manager says that he had not yet made up his mind whether to fire the plaintiff. Nonetheless, while meeting with the plaintiff near the end of July, the decision was made to fire him. The employer later said it was because of the security violations, failure to adequately supervise, and failure to stay on budget, but the letter only mentioned the security issues. The plaintiff contended that there had been no prior requirement to inform HQ about security breaches – which the employer disputed – but a letter was sent to all supervisors earlier in July explaining this policy after the plaintiff raised the issue.

The plaintiff brought suit for violation of the ADA provision which prohibits discrimination against an individual on account of his or her relationship with a person with a disability. Under this theory, the employer can be liable for discriminating against an employee, but it is not required to provide any reasonable accommodation to the employee on account of the other person's disability. The Sixth Circuit noted that there are three primary theories under this ADA section:

(1) "expense"; (2) "disability by association"; and (3) "distraction." The "expense" theory covers situations where an employee suffers an adverse employment action because of his or her association with a disabled individual covered under the employer's health plan, which is costly to the employer. The "disability by association" theory encompasses two related situations. Either the employer fears that the employee may contract the disability of the person he or she is associated with (for example the employee's partner is infected with HIV and the employer fears the employee may become infected), or the employee is genetically predisposed to develop a disability that his or her relatives have. The "distraction" theory is based on the employee's being somewhat inattentive at work because of the disability of someone with whom he or she is associated.

Surprisingly, the plaintiff did not pursue the expense theory. He also could not prove "disability by association" because the employer had known about the wife's condition for more than a decade. Although he tried to pursue the "distraction" theory, that was not possible in light of the uncontested evidence that the regional manager had been dissatisfied with his performance. The plaintiff had been required to show that "the adverse employment action occurred under a circumstance that raises a reasonable inference that the disability of the relative was a determining factor in the decision." On the contrary, there was no evidence to "suggest that his discharge was based on any unfounded fears that his wife's illness might cause him to be inattentive or distracted in the future." The Court rejected the argument that the employer was concerned that he would become more distracted since his wife's condition had recently worsened because the employer had known about her condition for more than a decade and not fired him.

The Court noted that even if the plaintiff had met his prima facie case, the employer stated a legitimate and non-discriminatory reason for firing him on account of his poor performance. However, the Court then seemed to back track on that. The plaintiff asserted that he could prove the employer's explanation was pretextual because the regional manager lied about the reason for firing him. Conceding that this evidence would generally be enough to establish pretext, the Court then concluded that proving pretext in this case was irrelevant since the plaintiff failed to prove a prima facie case.

A plaintiff cannot bypass the prima facie showing requirement and must offer some evidence to suggest that the adverse employment action he or she suffered was due in some measure to discriminatory animus before the employer is required to articulate a non-discriminatory reason for the action. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-48 (2000) (explaining that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated"). Therefore, even if Mulder had lied about the reason for terminating Stansberry, that does not show that Air Wisconsin terminated Stansberry on account of his wife's disability because Stansberry has offered no evidence to create an inference that he was fired on account of his wife's disability.

Finally, the Court noted that if the plaintiff's poor performance was caused by the distraction from his wife's illness, he still had no remedy under the ADA.

Importantly, while [the plaintiff's] poor performance at work was likely due to his wife's illness, that is irrelevant under this provision of the Act. [The plaintiff] was not entitled to a reasonable accommodation on account of his wife's disability. Cf., e.g., Larimer, 370 F.3d at 700. Therefore, because his discharge was based on actually performing his job unsatisfactorily, and not fears that his wife's disability might prevent him from performing adequately, Air Wisconsin's conduct is not prohibited by this section of the Act. While [the plaintiff's] situation is very unfortunate, he has not offered anything to show that his wife's disability was in any way connected to Air Wisconsin's decision to discharge him. The only connection is that it possibly caused his performance to slip. Therefore, Air Wisconsin's decision to terminate [him] does not run afoul of the Act.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

New Ohio Budget Contains A Few Provisions to Interest Employers

Last week, the General Assembly passed a new budget which contained some provisions of interest to public and private employers (aside from the obvious funding issues). Among other things, House Bill 153:
• Amended Ohio Revised Code Chapter 4141 concerning “seasonal employment” provisions in the unemployment compensation chapter;
• Incorporated performance management requirements for schools;
• Re-authorized mandatory and optional cost savings programs for exempt (i.e., non-union) employees in Ohio Revised Code § 124.393 to last until the end of fiscal year 2013, adds new ORC § 124.394 and broadens the provisions’ coverage to include non-union employees of townships and municipal corporations;
• Deleted the health care coverage and quality provisions from ORC § 4113.11 concerning mandatory health insurance cafeteria plans;
• Amended Chapter 4115 concerning prevailing wage requirements;
• Added college preparatory boarding schools to the purview of public collective bargaining provisions in Chapter 4117; and
• Amended provisions regarding the filling of positions within the civil service under Chapter 124.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Court of Appeals: Factual Issue Exists When Employee Fired After Good Performance Review

[Editor's Note: The Supreme Court vacated this decision on November 23, 2011 in light of Dohme. However, the Court of Appeals again reversed the employer's summary judgment on April 19, 2012, meaning this case is likely to return to the Supreme Court].

Earlier this month, the Cuyahoga County Court of Appeals reversed summary judgment in favor of an employer on a claim of wrongful discharge in violation of public policy. Alexander v. Cleveland Clinic Foundation, 2011-Ohio-2924. In that case, a private police officer working for the Foundation says he was attempting to help a pedestrian cross at a crosswalk when a driver ignored his motions to stop and continued through the crosswalk. He smacked the side-view mirror as the car passed – he says to get its attention. However, the driver later complained about the incident and a formal investigation was conducted. The employee had sometime earlier lost his temper with a bus driver who knocked him down in the street and he had been counseled to watch his temper. He had recently received a performance commendation and made a training officer and had received only satisfactory and mostly satisfactory performance evaluation. He was fired – purportedly just for slapping the driver’s mirror as it passed – and not for his overall work record. He claimed that his termination violated Ohio’s public policy requiring an officer to enforce traffic laws. The employer said he was fired for poor customer service skills. The Court’s majority decided that the factual dispute should be left to a jury, although the dissent felt that there was no clear public policy favoring the employee’s claim.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.