Kienow v. Cincinnati Children's Hosp. Med. Ctr. , 2015 Ohio 4396 ( 2015 )

[Cite as Kienow v. Cincinnati Children's Hosp. Med. Ctr., 2015-Ohio-4396.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
GLORIA KIENOW, : APPEAL NO. C-140720
TRIAL NO. A-1403720
Plaintiff-Appellant, :
O P I N I O N.
vs. :
CINCINNATI CHILDREN’S :
HOSPITAL MEDICAL CENTER,
:
and
:
MARY ANNE MORRIS,
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: October 23, 2015
Tobias, Torchia & Simon and David Torchia, for Plaintiff-Appellant,
Frost Brown Todd LLC, Jill P. Meyer and Matthew O. Wagner, for Defendants-
Appellees.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal of a trial court judgment dismissing a lawsuit filed by an
employee against her former employer and supervisor. We conclude that two claims
asserted by the former employee—defamation and negligent supervision—were properly
dismissed because they were barred by the statute of limitations. But the court erred
when it dismissed a claim for tortious interference, which was not barred by the statute
of limitations. We therefore affirm the court’s judgment in part, but reverse as to the
tortious-interference claim.
I. Background
{¶2} On June 23, 2014, Gloria Kienow filed a complaint alleging defamation,
negligent supervision and tortious interference against Cincinnati Children’s Hospital
Medical Center (“Cincinnati Children’s”) and Mary Anne Morris. The defendants filed a
Civ.R. 12(B)(6) motion to dismiss the claims based on statute-of-limitations and other
grounds. The court dismissed all the claims.
{¶3} Because the trial court dismissed the claims pursuant to Civ.R. 12(B)(6),
we must take as true the facts stated in the complaint. Thus, the following recitation
comes from the allegations of Kienow’s complaint.
{¶4} From November 2006 to July 2011, Ms. Kienow worked at Cincinnati
Children’s and was supervised by Morris. While employed by Cincinnati Children’s, Ms.
Kienow sought transfers and promotions within the hospital as well as positions at other
hospitals. She was unsuccessful in her pursuit. Sometime prior to April 2010, during a
meeting with a human resources manager at Cincinnati Children’s, Ms. Kienow learned
that Morris had put what Kienow describes as “false, negative and misleading
information” in her personnel file. The manager agreed that the information should be
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OHIO FIRST DISTRICT COURT OF APPEALS
removed from Kienow’s file. Despite Kienow’s follow-up with the human-resources
department, the information remained in her personnel file. Because Cincinnati
Children’s failed to take action to redress Morris’s actions, Ms. Kienow resigned from
her position in July 19, 2011.
{¶5} Following her resignation, Ms. Kienow sought employment at other
hospitals. In late December 2011 or early January 2012, she received a verbal offer of
employment from Dayton Children’s Hospital (“Dayton Children’s”). A week later,
however, the verbal offer was rescinded. In late 2013, Ms. Kienow learned that, in
January 2012, Morris had made negative, misleading and false statements about her to
the hiring manager at Dayton Children’s, and that as a result, the hospital had not hired
her.
II. The Statute of Limitations Barred the Defamation Claim
{¶6} In a single assignment of error, Ms. Kienow asserts that the trial court
erred when it dismissed her lawsuit. We begin our consideration with her claim for
defamation.
{¶7} The statute of limitations for defamation is one year. R.C. 2305.11. Ms.
Kienow claims that Morris made defamatory statements on two occasions—when she
put allegedly false information in Kienow’s personnel file prior to April 2010 and when
she relayed information to the hiring manager at Dayton Children’s in January 2012.
Both instances occurred more than a year before Kienow filed her complaint.
{¶8} Ms. Kienow attempts to avoid application of the statute by pointing out
that she didn’t learn of Morris’s statements to Dayton Children’s until late 2013. But an
action for defamation accrues on the date of publication; there is no discovery rule for
defamation. See Reed v. Jagnow, 7th Dist. Mahoning No. 12 MA 201, 2013-Ohio-2546,
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OHIO FIRST DISTRICT COURT OF APPEALS
¶ 25. Because Kienow’s claim for defamation accrued more than one year before she
filed her complaint, it was barred by the statute of limitations.
III. The Negligent-Supervision Claim was Properly Dismissed
{¶9} Kienow’s negligent-supervision claim against Cincinnati Children’s was
likewise barred by the statute of limitations. The applicable of statute of limitations for
the tort of negligent supervision is four years. See R.C. 2305.09(D). In her complaint,
Ms. Kienow cites as “negligent supervision” two instances when she protested to
Cincinnati Children’s about Morris’s conduct, and the hospital failed to act. According
to the complaint, Kienow’s complaints to the hospital and its failure to act happened in
April 2010 or earlier—more than four years before she filed the lawsuit. Thus, the claim
for negligent supervision was untimely and properly dismissed by the trial court.
IV. The Complaint Stated a Claim for Tortious Interference
{¶10} Ms. Kienow also alleged that by making false, misleading and negative
statements about her, Morris tortiously interfered with her employment at Cincinnati
Children’s and with her job prospects at Dayton Children’s, and that Cincinnati
Children’s ratified the conduct. Cincinnati Children’s contends that the claim was
properly dismissed because it was untimely and because the complaint did not plead
facts to overcome the statutory privilege allowed employers who disclose job-
performance information about former employees.
A. A Four-Year Statute of Limitations Applies
{¶11} We first determine the applicable statute of limitations. Ms. Kienow
argues that because the claim was for tortious interference, the four-year statute of
limitations applies. See R.C. 2305.09(D). Cincinnati Children’s counters that the claim
was really a “disguised defamation,” subject to a one-year statute of limitations. See R.C.
2305.11.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} When determining which statute of limitations applies, “courts must
look to the actual nature or subject matter of the case, rather than to the form in which
the action is pleaded.” Hambleton v. R.G. Barry Corp., 12 Ohio St. 3d 179, 183, 464
N.E.2d 1298 (1984). Thus, in Worpenberg v. The Kroger Co., 1st Dist. Hamilton No. C-
010381, 2002-Ohio-1030, we looked to the nature of what was identified as a “damage-
to-reputation” claim and determined that it was really a defamation claim subject to a
one-year statute of limitations. We reasoned that “[a] claim is ‘complete under
defamation’ if, under the facts, it hinges upon the defendant communicating something
by speech or conduct.” Id. at *17, citing Silbaugh, Sticks and Stones Can Break My
Name: Nondefamatory Negligent Injury to Reputation, 59 U.Chi.L.Rev. 865, 868
(1992). Because the “damage-to-reputation” claim was “expressly premised upon a
‘communication,’ ” it was a defamation claim. Id. at *18.
{¶13} Cincinnati Children’s insists that, as in Worpenberg, Kienow’s tortious-
interference claim was based on Morris’s communication and so should also be
considered a defamation claim. But to conclude that Worpenberg means that any claim
involving communication is necessarily a defamation claim reads our decision in the
case too broadly. The nature of the “damage to reputation” claim in Worpenberg was
precisely the nature of a defamation claim—“a false and malicious publication against
an individual made with an intent to injure his reputation or to expose him to public
hatred, contempt, ridicule, shame, or disgrace or to affect him injuriously in his
trade, business or profession.” (Emphasis added.) Robb v. Lincoln Publishing
(Ohio), Inc., 114 Ohio App. 3d 595, 616, 683 N.E.2d 823 (12th Dist.1996). In
contrast, the nature of a tortious-interference claim goes beyond damage to reputation.
“The basic principle of such an action is that one who, without a privilege to do so,
induces or otherwise purposely causes a third party not to enter into, or continue, a
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OHIO FIRST DISTRICT COURT OF APPEALS
business relationship with another, or perform a contract with another is liable to the
other for the harm caused thereby.” Juhasz v. Quik Shops, Inc., 55 Ohio App. 2d 51,
57, 379 N.E.2d 235 (9th Dist.1997). Here, the tortious-interference claim does not
hinge simply on Morris’s disseminating information but on her hindering a prospective
and known business relationship—Kienow’s pending employment with Dayton
Children’s. The claim alleged by Kienow is not of the same nature as a defamation
claim. Ms. Morris did not simply say bad things about her, but, according to the
complaint, specifically and intentionally interfered with her prospective business
relationship with Dayton Children’s. Under these facts, we conclude that the complaint
alleges a tortious-interference claim, and the four-year statute of limitations applies.
B. Application of the Four-Year Statute of Limitations
{¶14} Having determined the applicable statute of limitations, we apply it to
the claim asserted by Kienow. Part of her claim was that Morris interfered with her
Cincinnati Children’s employment by putting information in her personnel file. As
discussed above, that happen no later than April 2010, more than four years before
Kienow filed her complaint. That part of the claim was untimely.
{¶15} The other part of her claim—the interference with her job prospects at
Dayton Children’s—occurred sometime in January 2012, when Morris allegedly made
negative statements about Kienow to the hiring manager at Dayton Children’s. That
part was timely filed.
C. The Complaint Sufficiently Stated a Claim for Tortious Interference
{¶16} Cincinnati Children’s rejoins that, regardless of the statute of limitations,
the complaint did not state a claim for tortious interference because Kienow failed to
plead facts to overcome the statutory privilege due employers who share information
about employees with prospective employers.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} R.C. 4113.73(B) provides that “[a]n employer who is requested by * * * a
prospective employer of an employee to disclose * * * job performance” information
is not liable for damages resulting therefrom unless the employee establishes that
the information was disclosed maliciously, in bad faith, with a deliberate intent to
mislead or as an unlawful discriminatory practice. Cincinnati Children’s maintains
that Kienow’s complaint did not plead facts to overcome the statutory privilege. But it is
not obvious on the face of the complaint that the privilege applied: there was no
allegation that Dayton Children’s “requested” information from Cincinnati Children’s
or Morris. Ms. Kienow was not required to plead to defeat a potential privilege not
obvious on the face of the complaint. See Gall v. Dye, 9th Dist. Lorain 98CA007183,
1999 Ohio App. LEXIS 4147, *8 (Sept. 8, 1999). Thus, the complaint sufficiently
stated a claim for tortious interference.
V. Conclusion
{¶18} The sole assignment of error is overruled in part and sustained in part.
The trial court properly dismissed the claims for defamation and negligent supervision
because they were untimely. The tortious-interference claim, to the extent it referred to
actions done before April 2010, was also untimely. But the part of the claim that alleged
Morris had made statements to Dayton Children’s in January 2012 was timely and
stated a claim. The court erred when it granted the motion to dismiss with respect to
that part of the claim. We reverse that part of the judgment and remand the case for
further proceedings. In all other respects, the judgment is affirmed.
Judgment accordingly.
H ENDON , P.J., and F ISCHER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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