Sherman v. Univ. of Toledo , 2011 Ohio 1849 ( 2011 )

[Cite as Sherman v. Univ. of Toledo, 2011-Ohio-1849.]
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
MICHAEL D. SHERMAN
Plaintiff
v.
UNIVERSITY OF TOLEDO, et al.
Defendants
Case No. 2007-09062
Judge Clark B. Weaver Sr.
DECISION
{¶ 1} On December 14, 2010, defendants filed a motion for summary judgment
pursuant to Civ.R. 56(B). On January 6, 2011, plaintiff filed a response stating that
additional time was needed for discovery. On February 3, 2011, the court issued an
entry denying plaintiff’s request for additional discovery, but granting plaintiff leave to
February 11, 2011, to file a memorandum contra to defendants’ motion.1 On February
11, 2011, plaintiff filed a “supplemental pleading with regard to motion for summary
judgment” wherein he reiterated that discovery was not complete.
{¶ 2} On February 15, 2011, the court granted plaintiff additional leave to
February 28, 2011, to file a response to defendants’ motion for summary judgment. On
February 24, 2011, plaintiff filed a response, again asserting that discovery was not
1
The court noted that the case was then scheduled for trial on March 14-16, 2011, that it had originally
been scheduled for trial on July 20, 2009, and that it was continued from that date to December 11, 2009.
The court’s March 3, 2010 trial order extended the discovery deadline to November 15, 2010, and, in an
entry dated October 26, 2010, the court denied plaintiff’s September 29, 2010 motion to extend that
complete. Defendants’ motion for summary judgment is now before the court for non-
oral hearing pursuant to L.C.C.R. 4(D).
{¶ 3} Civ.R. 56(C) states, in part, as follows:
{¶ 4} “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
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 County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
{¶ 5} Plaintiff filed this action alleging that Linda Bowyer, Ph.D., a colleague at
defendant University of Toledo (UT), engaged in a course of conduct designed to
interfere with, and cause the termination of, his employment as a UT professor. He also
alleges that Dr. Bowyer defamed him with students. Defendants contend that they are
entitled to judgment on both claims as a matter of law.
{¶ 6} With respect to the first claim, plaintiff contends that Dr. Bowyer, as a
member of the personnel committee, interfered with and undermined faculty reviews of
his performance, causing him to receive unfavorable evaluations. To the extent that
plaintiff is claiming a tortious interference with contract, the elements of such claim are:
“(1) the existence of a contract, (2) the wrongdoer’s knowledge of the contract, (3) the
wrongdoer’s intentional procurement of the contract’s breach, (4) the lack of justification,
and (5) resulting damages.” Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d
415, 1995-Ohio-61, paragraph two of the syllabus. In this case, plaintiff has not alleged,
or provided evidence to substantiate, that defendants have committed a breach of his
employment contract, or that he has suffered any compensable damages as a result.
deadline. The court found that plaintiff had not set forth sufficient reasons to justify the allowance of
Indeed, plaintiff continues to be both employed and tenured at UT. Accordingly, this
claim must fail.
{¶ 7} The crux of plaintiff’s complaint is his claim of defamation. “Defamation is
defined as ‘the unprivileged publication of a false and defamatory matter about another
* * * which tends to cause injury to a person’s reputation or exposes him to public
hatred, contempt, ridicule, shame or disgrace * * *.’ McCartney v. Oblates of St. Francis
deSales (1992), 80 Ohio App.3d 345, 353. As suggested by the definition, a publication
of statements, even where they may be false and defamatory, does not rise to the level
of actionable defamation unless the publication is also unprivileged. Thus, the threshold
issue in such cases is whether the statements at issue were privileged or unprivileged
publications.” Sullivan v. Ohio Dept. of Rehab.& Corr., Ct. of Cl. No. 2003-02161, 2005-
Ohio-2122, ¶8.
{¶ 8} Privileged statements are those that are “made in good faith on any
subject matter in 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 (1975), 43 Ohio St.2d 237, 244, quoting 50 Am.Jur.2d 698, Libel and Slander,
Section 195.
{¶ 9} Furthermore, a qualified privilege can be defeated only by clear and
convincing evidence of actual malice. Bartlett v. Daniel Drake Mem. Hosp. (1991), 75
Ohio App.3d 334, 340. “Actual malice” is “acting with knowledge that the statements
are false or acting with reckless disregard as to their truth or falsity.” Jacobs v. Frank
(1991), 60 Ohio St.3d 111, 116.
{¶ 10} Plaintiff contends that Dr. Bowyer defamed him by making negative
comments to students as to his teaching methods and practices, and by advising
students to choose other professors over him for certain courses. Plaintiff also
suggests that Dr. Bowyer made defamatory statements about him to the personnel
additional discovery.
review committee. However, plaintiff has not alleged any facts nor offered any evidence
regarding the specific content of such statements, their truth or falsity, or even whether
any such statements were actually made. In a May 23, 2008 immunity hearing held
before this court, Dr. Bowyer testified that she was not aware of any negative comments
she made to students regarding plaintiff’s teaching skills or whether a particular student
should take a course from him or another professor. She stated that her approach to
such questions was to explain that professors have their own way of presenting course
material and that students, in turn, have their own learning style. With regard to
comments to UT staff, Dr. Bowyer acknowledged that on several occasions she had
been “very critical” of plaintiff in the presence of other staff members. Plaintiff also
testified at the immunity hearing but did not rebut any of Dr. Bowyer’s statements
regarding her communications with UT students or staff.
{¶ 11} The court finds that even if Dr. Bowyer made any arguably defamatory
statements against plaintiff, such statements would be subject to a qualified privilege.
As explained in Hahn v. Kotten, supra, “‘[a]ll that is necessary to entitle * * *
communications to be regarded as privileged is, that the relation of the parties should
be such as to afford reasonable ground for supposing an innocent motive for giving
information, and to deprive the act of an appearance of officious intermeddling with the
affairs of others.’” Id. at 246, quoting West v. People’s Banking & Trust Co. (1967), 14
Ohio App.2d 69. “‘The privilege arises from the necessity of full and unrestricted
communication concerning a matter in which the parties have an interest or duty, and is
not restricted within any narrow limits.’” Id. (Emphasis in original.) (Additional citations
omitted.) Here, plaintiff has produced no evidence that any alleged defamatory
statements were made outside the context of Dr. Bowyer’s interests or duties as a
student advisor or personnel committee member. Finally, plaintiff has produced no
evidence that Dr. Bowyer acted at any time with actual malice.
{¶ 12} Civ.R. 56(E) provides in pertinent part:
{¶ 13} “When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or denials
of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided
in this rule, must set forth specific facts showing that there is a genuine issue for trial. If
the party does not so respond, summary judgment, if appropriate, shall be entered
against the party.”
{¶ 14} Plaintiff has failed to set forth any specific facts showing that there is a
genuine issue for trial on either of his claims. Accordingly, construing the evidence
most strongly in plaintiff’s favor, the court concludes that defendants are entitled to
judgment as a matter of law. Defendants’ motion for summary judgment shall be
granted and judgment shall be rendered in favor of defendants.
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
MICHAEL D. SHERMAN
Plaintiff
v.
UNIVERSITY OF TOLEDO, et al.
Defendants
Case No. 2007-09062
Judge Clark B. Weaver Sr.
JUDGMENT ENTRY
A non-oral hearing was conducted in this case upon defendants’ motion for
summary judgment. For the reasons set forth in the decision filed concurrently
herewith, defendants’ motion for summary judgment is GRANTED and judgment is
rendered in favor of defendants. 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.
_____________________________________
CLARK B. WEAVER SR.
Judge
cc:
Bruce C. French Randall W. Knutti
P.O. Box 839 Assistant Attorney General
Lima, Ohio 45802-0839 150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130
LH/cmd
Filed March 22, 2011
To S.C. reporter April 12, 2011