Gossard v. Ohio Dept. of Job & Family Servs.

[Cite as Gossard v. Ohio Dept. of Job & Family Servs., 2015-Ohio-5561.]
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
STEVEN D. GOSSARD
Plaintiff
v.
OHIO DEPARTMENT OF JOB AND FAMILY SERVICES
Defendant
Case No. 2014-00084
Judge Patrick M. McGrath
Magistrate Holly True Shaver
DECISION
{¶1} On December 19, 2014, defendant filed a motion for judgment on the
pleadings pursuant to Civ.R. 12, and/or summary judgment pursuant to Civ.R. 56(B).
With leave of court, on January 22, 2015, plaintiff filed a response and his own motion
for summary judgment. On February 2, 2015, defendant filed a response. On
February 10, 2015, plaintiff filed a motion for leave to file a reply, which is GRANTED,
instanter. The motions are now before the court for a non-oral hearing. Inasmuch as
the parties filed additional documentation to support their motions, they shall be treated
as cross-motions for summary judgment pursuant to Civ.R. 56.
{¶2} Civ.R. 56(C) states, in part, as follows:
{¶3} “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 Cty., 104 Ohio St. 3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St. 2d 317 (1977).
{¶4} On September 26, 2011, plaintiff was hired by defendant as a veteran
outreach specialist to report to an office in Toledo, Ohio. Plaintiff’s duties included
performing “outreach” work to inform veterans of programs available to them.
Plaintiff’s outreach work required him to travel to different Ohio counties.
{¶5} In September 2012, plaintiff expressed interest in moving his headquarters
from the Toledo office to the Allen County office, so that he could perform outreach in
Allen, Putnam, and Paulding Counties. Although plaintiff was permitted to temporarily
work in those counties, a dispute arose regarding whether his headquarters office
remained in Lucas County or was changed to Allen County. Plaintiff asserts that he
was given permission to report from Allen County, while defendant asserts that his
headquarters was never changed from Lucas County. On September 20, 2012,
plaintiff advised his supervisor, Daniel Hurlbert, via email that there would be a
“recurring time adjustment” on his timesheets for his travel to Putnam and Paulding
Counties three days per week. Hurlbert approved plaintiff’s timesheets and requests
for travel reimbursement.
{¶6} On November 26, 2012, David Stonerock became plaintiff’s section chief.
After a meeting with Stonerock, on January 16, 2013, Hurlbert sent an email to plaintiff
and Stonerock advising that even though plaintiff was working on a temporary
assignment for six months in Allen, Paulding, and Putnam Counties, plaintiff’s primary
work location remained at the Toledo office. Hurlbert stated: “The distance from your
home to your current headquarters, Lucas Co., is greater than it is to Allen, Paulding, or
Putnam Counties. Consequently, you are not authorized reimbursement for travel to
and from any of those three One-Stops. You are, however, authorized reimbursement
for all outreach travel.” (Defendant’s Exhibit B-1, Bates Number 1970.)
{¶7} On April 29, 2013, Stonerock sent an email to Hurlbert advising him that
plaintiff should not be “getting travel time * * * or travel money for travel to Putnam,
Paulding or Lucas Counties. His assigned location (Lucas County) is less than the
travel to Putnam, Paulding or Lucas. His ONLY travel expense should be outreach
from those counties. * * * His travel money is extremely high for someone who’s [sic]
normal commute one way is 60 miles.” (Plaintiff’s Exhibit 2, Bates Number 1265.)
{¶8} On May 22, 2013, Stonerock sent an email to plaintiff regarding his adjusted
time for travel, and advised plaintiff that he was not authorized travel time from his
current residence in Wapakoneta to Ottawa County since that distance was less than
plaintiff’s normal commute to Lucas County. (Plaintiff’s Exhibit 2, Bates Number 2421.)
Plaintiff was advised to adjust his schedule immediately. Id. On May 28, 2013,
plaintiff sent an email to his union representative about his assumption that his
headquarters had been changed to the Lima office, that his supervisors, including Pam
Mason, agreed that he would be entitled to travel reimbursement, and that he felt that
he was being treated unfairly in regard to travel reimbursement and adjusting his time.
(Plaintiff’s Exhibit 2.) Plaintiff informed his union representative that he viewed his
email as an official grievance. Id.
{¶9} On May 31, 2013, Stonerock filed a request for an investigation into
potential fraud with regard to plaintiff’s travel reimbursements. On August 23, 2013,
plaintiff submitted a letter of resignation, wherein he stated that he had been
constructively discharged. On August 30, 2013, the Office of the Chief Inspector
issued its Report of Investigation (ROI). Plaintiff asserts that the ROI contains
defamatory statements about him. Specifically, plaintiff asserts that the ROI states that
he committed “wrongful acts” by submitting false travel mileage reimbursements and
payroll requests, accused him of of theft from the state, and stated that he engaged in
“potential criminal activity.” Plaintiff alleges that the ROI contained inaccurate
information and relied on false allegations to conclude that he had violated the travel
reimbursement policy. Plaintiff further alleges that the preliminary findings were
forwarded to the State Highway Patrol and the Ohio Inspector General for review.
Plaintiff asserts that defendant’s employees knew that he had previously run for public
office and that because of the defamatory statements contained in the ROI, he decided
not to run for public office in 2014. Plaintiff asserts a claim of defamation1 and seeks
an immunity determination with regard to several of defendant’s employees, including
Ryan Beaty, investigator for defendant’s office of the Chief Inspector; Robert Ferguson,
Chief Inspector; Steven Johnson, Investigations Supervisor; Bruce Madson, Assistant
Director, Employment Services; Pam Mason, Bureau Chief, Veterans Services; David
Stonerock, Section Chief, Veterans Services; and John Weber, Deputy Director,
Workforce Development.
{¶10} “In Ohio, defamation occurs when a publication contains a false statement
‘made with some degree of fault, reflecting injuriously on a person’s reputation, or
exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a
person adversely in his or her trade, business or profession.’” Jackson v. Columbus,
117 Ohio St. 3d 328, 2008-Ohio-1041, ¶ 9, quoting A & B-Abell Elevator Co., Inc. v.
Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St. 3d 1, 7 (1995).
“‘Slander’ refers to spoken defamatory words, while ‘libel’ refers to written or printed
defamatory words.” Schmidt v. Northcoast Behavioral Healthcare, 10th Dist. Franklin
No. 10AP-565, 2011-Ohio-777, ¶ 8.
{¶11} “To succeed on a defamation claim, a plaintiff must establish: (1) a false
statement, (2) about the plaintiff, (3) published without privilege to a third party, (4) with
fault of at least negligence on the part of the defendant, and (5) the statement was
either defamatory per se or caused special harm to the plaintiff.” Watley v. Ohio Dept.
of Rehab. & Corr., 10th Dist. Franklin No. 07AP-902, 2008-Ohio-3691, ¶ 26.
{¶12} Defendant asserts that any statements contained in the ROI are subject to
the defense of a qualified privilege, and that plaintiff has failed to produce evidence to
show that the statements were made with actual malice.
{¶13} 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, 43 Ohio St. 2d 237, 244 (1975). “A qualified privilege may be defeated only by
clear and convincing evidence of actual malice on the part of the defendant.”
DeGarmo v. Worthington City Schools Bd. of Edn., 10th Dist. Franklin No. 12AP-961,
2013-Ohio-2518, ¶ 18. “Actual malice” means “acting with knowledge that the
1In his response to defendant’s motion, plaintiff specifically states that he is not asserting any
claim for breach of contract or employment discrimination via constructive discharge. Therefore, the
statements are false or acting with reckless disregard as to their truth or falsity.”
Jacobs v. Frank, 60 Ohio St.3d. 111, 116 (1991).
{¶14} In support of its motion, defendant filed the affidavits of Stonerock, Beaty,
Johnson, and Ferguson, who all aver that they have never made any untrue
statements, oral or written, about plaintiff, that any statements that they have made
about plaintiff were made as a part of their official duties for defendant, and that at all
times relevant, they were acting appropriately and within in the course and scope of
their employment, not with malicious purpose, in bad faith, or in a wanton or reckless
manner. In addition, Stonerock avers the following:
{¶15} “5. In September 2012, Steven D. Gossard was temporarily assigned to
complete outreach in Allen, Paulding, and Putnam Counties.
{¶16} “6. After a spike in Steven D. Gossard’s travel reimbursements in
November 2012, he was reminded of the proper procedure for reimbursements while
on his temporary assignment in January 2013. When the reimbursement requests did
not decline, I reported the matter for potential fraud in May 2013.
{¶17} “7. Steven D. Gossard was a member of a collective bargaining unit and
was required to utilize the grievance process included in his collective bargaining
agreement.”
{¶18} In Beaty’s affidavit, he states:
{¶19} “3. In 2013, I completed an investigation regarding Steven D. Gossard’s
work hours and travel reimbursements. As a result of that investigation, I prepared a
Report of Investigation (ROI) dated August 30, 2013. A true and accurate copy of the
ROI is attached to this affidavit as Exhibit B-1.”
{¶20} The ROI shows that Beaty served as the investigator, Johnson reviewed
the ROI, and that Ferguson approved the ROI. The ROI was sent to Madson and
Weber, as well as three other of defendant’s managerial level employees. The
language contained in the ROI shows that plaintiff was investigated for two issues: 1)
submitting travel reimbursements for travel that was less than his normal commute time
from his home in Wapakoneta to his headquarters in Toledo, and, 2) improperly
adjusting his work hours for travel. During the investigation, plaintiff’s timekeeping
records and electronic calendar were reviewed, and both plaintiff and Hurlbert were
interviewed. The ROI includes the applicable travel reimbursement policy and
court shall address plaintiff’s sole claim of defamation.
references emails made among plaintiff and defendant’s employees. The ROI
concluded that there was reasonable cause to believe that wrongful acts occurred,
specifically that plaintiff “may have violated ODJFS policy when he requested mileage
reimbursement he was not entitled to,” that plaintiff “may have violated ODJFS policy
when he submitted payroll requests for time he was not entitled to,” and that Hurlbert’s
failure to comply with explicit instructions may have violated ODJFS policy when he
failed to provide proper supervisory direction and oversight by authorizing payroll and
travel reimbursement [plaintiff] was not entitled to.” (ROI, pages 6-9.) It was further
recommended that defendant review the report for disciplinary actions and procedure
violations consistent with the findings and conclusions in the report, and that a
procedure be established whereby employees who travel regularly declare their
permanent residence, normal commute time, and commute miles. Finally, it was
recommended that additional training be conducted and that the travel and conference
expense reimbursement policy be acknowledged by employees.
{¶21} Defendant also submitted a copy of its “standards of employee conduct.”
Section C. INVESTIGATIONS, states: “Allegations of misconduct will be investigated.
During the course of an investigation, employees are to cooperate fully by providing all
pertinent information. Failure of an employee to answer any inquiry fully, truthfully, and
to the best of their knowledge will be grounds for disciplinary action. Individuals may
also be required to submit to an official search of person or property. An employee
may be placed on Administrative Leave during an investigation.”
{¶22} In response to defendant’s motion and in support of his own motion for
summary judgment, plaintiff submitted his own affidavit, wherein he states, in relevant
part:
{¶23} “2. MUO travel was reimbursement for travel from my primary work
location to my other assigned offices (travel pay from headquarters to the secondary
offices or “One-Stops). Outreach travel, on the other hand, included reimbursement
from my primary work location to wherever I would conduct the outreach within my
assigned jurisdiction. Outreach could be conducted anywhere veterans would
congregate, such [as] VSO offices, libraries, veteran organizations, churches, hanging
flyers, etc.
{¶24} “3. On August 23, 2013, I submitted my resignation.
{¶25} “4. Any schedule adjustments made after January 16, 2013 were strictly
for commuting purposes and not travel reimbursement.
{¶26} “5. On September 6, 2013, Ryan Beaty confirmed that the Report of
Investigation is ‘public record.’
{¶27} “6. ODJFS and its agents knew that I had previously ran [sic] for public
office and that I had aspirations to do so again in the future.
{¶28} “7. As a direct result of the defamatory allegations published against me, I
decided not to run for public office.
{¶29} “8. I never worked from Toledo or was asked to work from Toledo after
January 16, 2013 until I was directed to return to Toledo on June 3, 2013.”
{¶30} Plaintiff also submitted email to support his interpretation that his travel
reimbursement requests were legitimate inasmuch as they had been approved by
Hurlbert. Plaintiff further asserts that since the ROI contains factual contradictions,
such as his own contention that he was authorized to use the Allen County office to
calculate reimbursement for outreach, as opposed to Stonerock’s contention that
plaintiff continued to request and receive travel reimbursement that he was not entitled
to after he had been repeatedly counseled on what was appropriate, the allegations
contained in the ROI are patently false. Plaintiff also asserts that no reasonable
person conducting an investigation could have reached the conclusions that defendant
did, that the outcome was based on ill will, revenge, moral obliquity, conscious
wrongdoing, fraud, or at a minimum a reckless disregard for the truth. Plaintiff points
to an email from Pam Mason to Stonerock wherein she relates that she was “pissed”
after she was informed by Hurlbert that plaintiff’s union representative told Hurlbert that
Mason had made negative statements about Hurlbert in a meeting, presumably about
plaintiff’s assertion that the travel policy was being applied to him unfairly. (Plaintiff’s
Exhibit 2, Bates Number 1873.) Plaintiff asserts that Mason’s email and the
allegations in the ROI raise an inference of actual malice, in that defendant’s
employees knew that the allegations that they were making against him were false.
{¶31} Based on the evidence provided by both parties under Civ.R. 56,
reasonable minds can only conclude that any statements by employees of defendant to
the effect that plaintiff was violating the travel reimbursement policy/and or was
inaccurately reporting his time were subject to a qualified privilege and were not made
with actual malice. Plaintiff has provided no evidence, other than his own self-serving
assertions, that defendant’s employees acted with either knowledge that the statements
were false or with reckless disregard as to their truth or falsity. Plaintiff’s assertion that
his requests for travel expenses were legitimate because they had been approved by
Hurlbert does not support an inference that defendant’s employees acted with actual
malice. Indeed, Hurlbert was also criticized in the ROI for approving plaintiff’s
requests. Plaintiff’s assertion that defendant’s employees knew that he had run for
public office and engaged in the investigation to prevent him from running for office is
self-serving and uncorroborated. Finally, Mason’s email wherein she describes being
“pissed” does not lead to an inference that the statements in the ROI were false or were
made with reckless disregard as to their truth or falsity. The only reasonable
conclusion is that any statements made in the ROI were subject to a qualified privilege,
and that plaintiff has failed to present evidence, which if believed, could lead to the
logical inference that defendant’s employees acted with actual malice. Therefore,
defendant is entitled to summary judgment as a matter of law with respect to plaintiff’s
defamation claims.
{¶32} Inasmuch as the court has found that any alleged defamatory statements
that were made were privileged, and that plaintiff has not brought forth evidence to lead
to a reasonable conclusion that defendant’s employees acted with actual malice, the
court further finds that there is no genuine issue as to any material fact that defendant’s
employees were acting within the course and scope of their employment, and that they
did not act with malicious purpose, in bad faith, or in a wanton or reckless manner at all
times relevant.
_____________________________________
PATRICK M. MCGRATH
Judge
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
STEVEN D. GOSSARD
Plaintiff
v.
OHIO DEPARTMENT OF JOB AND FAMILY SERVICES
Defendant
Case No. 2014-00084
Judge Patrick M. McGrath
Magistrate Holly True Shaver
JUDGMENT ENTRY
{¶33} A non-oral hearing was conducted in this case upon the parties’
cross-motions for summary judgment. For the reasons set forth in the decision filed
concurrently herewith, defendant’s motion for summary judgment is GRANTED and
judgment is rendered in favor of defendant. The court further finds that Ryan Beaty,
Robert Ferguson, Steven Johnson, Bruce Madson, Pam Mason, David Stonerock, and
John Weber are entitled to immunity pursuant to R.C. 9.86 and R.C. 2743.02(F) and
that the courts of common pleas do not have jurisdiction over any civil actions that may
be filed against them based upon the allegations in this case. Plaintiff’s motion for
summary judgment is DENIED. All previously scheduled events are VACATED.
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.
_____________________________________
PATRICK M. MCGRATH
Judge
cc:
Amy S. Brown Curtis A. New
Assistant Attorney General 571 South Main Street, #7
150 East Gay Street, 18th Floor Englewood, Ohio 45322
Columbus, Ohio 43215-3130
Filed March 11, 2015
Sent To S.C. Reporter 12/31/15