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COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
Bonnie Hale,
v.
City of Dayton, et al.,
Defendants-Appellees
C.A. Case No. 18800
2002 Ohio App. Lexis 474
88 FEP Cases (BNA) 290
February
8, 2002, Rendered
WOLFF, P. J.
BROGAN, J. and FAIN, J.,
concur.
Bonnie Hale appeals from a judgment of the Montgomery County
Court of Common Pleas, which granted summary judgment in favor of the City of
Dayton, Jack Balazs, and Larry Collins.
In August
of 1998, Balazs, a firefighter for the City of Dayton, used his personal home
computer to view images of nude overweight women on the internet. He downloaded
a picture of a naked, overweight woman who resembled Hale onto his laptop
computer and took the laptop to the firehouse where he worked. Hale was a
paramedic with the City of Dayton. She and Balazs were co-workers, with no
supervisory relationship between them, and were in different companies within
the fire department. Balazs was assigned to Company Twelves, and Hale
was assigned to Company Eights.
After
taking the picture, which was stored on his laptop, to the firehouse, Balazs
showed it to as many as fifteen of his coworkers during at least two days in
August and September of 1998. These coworkers included members of his
crew in Company Twelves, various firefighters from Company Eights, and various
firefighters from Company Fifteens. Balazs also called at least one person to
the firehouse for the specific purpose of viewing the image. Some of the firefighters who
viewed the image stated that Balazs had asked "Does this look like anybody
you know?" or "Doesn't this look like a Dayton Paramedic? Doesn't
this look like Bonnie [Hale]?" Others stated that he had told them
to come look at the screen. Most of the firefighters viewing the image noted
that it resembled Hale.
The firefighters who viewed the image included at least three lieutenants,
n1 who are supervisory personnel at the fire department. None of the three
lieutenants who viewed the image reported it to their superiors or took any
action to stop Balazs' conduct. At least one of these supervisors, Lt. Pat
Connaughton, agreed with Balazs that the picture resembled Hale. Another, Lt.
Phil Plummer, saw that it was a picture of a nude woman but could not say who
it resembled because he was not wearing his glasses. The third, Lt. James Cox,
received an email of the picture from Balazs. He had heard that there was a
picture of a nude female resembling a paramedic on the internet and had heard
Hale's name in connection with the rumor. Cox mentioned the rumor at a union
bargaining session at which Hale was present on September 12, 1998. Hale had
not been aware of the picture before this time. Cox was unable to open the
email from Balazs but gave a paramedic, Harry Hageman, permission to try to
download the image from Cox's email. Hageman was able to download the image,
and he did so at Hale's request.
Hale
reported Balazs' conduct to her supervisor, Lt. John Strukamp, on September 15,
1998. Strukamp contacted his superior, District Chief Fleming. Both men noted
that Hale was crying, very upset, and unfit for duty. She was referred to the
City of Dayton Employee Care and later told to go home. Hale was then placed on
sick-leave and began receiving psychological treatment for depression. She was
also prescribed medication. For a period of time following the incident, Hale
had difficulty performing basic daily tasks and working. She never resumed her
job at the fire department but eventually went back to work at the part-time
jobs she had already held.
The fire department
began an investigation of Balazs, which resulted in his admission to the
allegations. The city initiated disciplinary proceedings against Balazs, who
retired effective October 30, 1998 to avoid being fired.
Hale filed
her complaint on November 16, 1998 against the City of Dayton, various city
officials, and Balazs. Against all defendants, she alleged hostile work
environment sexual harassment in violation of R.C. 4112.02, defamation, and
invasion of privacy. Following
some discovery, the city and Balazs filed motions for summary judgment on March
6 and March 8, 2000, respectively. Hale filed an amended complaint on June 12,
2000, adding claims of intentional and negligent infliction of emotional
distress against Balazs and adding Collins, who was the chief of the fire
department, as a defendant. On June 29, Collins filed a motion for summary
judgment. On August 21, Balazs filed a motion for summary judgment on the
intentional and negligent infliction of emotional distress claims. The trial court
granted summary judgment in favor of all defendants n2 on March 14, 2001.
Hale raises four assignments of error on appeal.
I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY GRANTING THE DEFENDANT-APPELLEES' MOTIONS FOR SUMMARY JUDGMENT ON THE ISSUE OF SEX HARASSMENT/HOSTILE WORK ENVIRONMENT, A FORM OF SEX DISCRIMINATION.
Under this assignment of error, Hale argues that the trial court
erred in granting summary judgment to the city, Balazs, and Collins on her
hostile work environment sexual harassment claim.
Our review of the trial court's decision to grant summary
judgment is de novo . See Helton v. Scioto Cty. Bd. of Commrs. (1997), 123 Ohio
App.3d 158, 162, 703 N.E.2d 841. Civ.R. 56(C) provides that summary judgment
may be granted when the moving party demonstrates that (1) there is no genuine
issue of material fact; (2) the moving party is entitled to judgment as a
matter of law; and (3) viewing the evidence most strongly in favor of the
nonmoving party, 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. See State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio
St.3d 181, 183, 677 N.E.2d 343; Harless v. Willis Day Warehousing Co. (1978),
54 Ohio St.2d 64, 65-66, 375 N.E.2d 46.
This action was brought under R.C. Chapter 4112, which is Ohio's
counterpart to Section 2000e, Title 42, U.S. Code ("Title VII").
Federal case law interpreting Title VII is generally applicable to cases brought
under Chapter 4112. See Genaro v. Cent. Transport, Inc. (1999), 84 Ohio St.3d
293, 295, 703 N.E.2d 782; Plumbers & Steamfitters Commt. v. Ohio Civil
Rights Comm. (1981), 66 Ohio St.2d 192, 196, 421 N.E.2d 128.
Initially,
we must determine whether Balazs and Collins can be personally liable under
R.C. Chapter 4112. Balazs argues that Chapter 4112 does not provide for
individual liability for co-workers. We agree. Chapter 4112 provides for
employer liability for employment discrimination. R.C. 4112.01(A)(2) defines "employer" as "* * *
any person employing four or more persons within the state, and any person
acting directly or indirectly in the interest of an employer." The Supreme
Court of Ohio has held that this definition of "employer" includes supervisors
and managers. See Genaro, supra, at 300. However, we do not believe that it
includes co-workers. In this case, Balazs was not Hale's supervisor in any way. He was merely a co-worker.
n3 While he may be personally liable for his conduct under another theory of
law, he cannot be liable under Chapter 4112 because he is not an employer.
Therefore, the trial court did not err in granting summary judgment in favor of
Balazs on Hale's hostile work environment claim.
Regarding
the personal liability of Collins, the city argues that, as a supervisor, he
can be liable under Genaro only for his own discriminatory acts, not for those
of Balazs. Again, we agree. Genaro cannot be read to impose personal
liability on supervisors for the discriminatory acts of their employees. Hale
has not alleged that Collins himself committed any discriminatory acts against
her or even that he furthered Balazs in his actions. She has alleged only that
Collins should be vicariously liable for the acts of Balazs. n4 We do not
believe that such liability is contemplated by Chapter 4112 or Genaro.
Therefore, the trial court did not err in granting summary judgment in favor of
Collins on Hale's hostile work environment claim.
We are thus left with the question of whether the trial court
erred in granting summary judgment in favor of the City of Dayton on Hale's
hostile work environment claim. The Supreme Court of Ohio has set forth the
elements required to establish a prima facie case of hostile work environment
sexual harassment under Ohio law:
In order to
establish a claim of hostile-environment sexual harassment, the plaintiff must
show (1) that the harassment was unwelcome, (2) that the harassment was based
on sex, (3) that the harassing conduct was sufficiently severe or pervasive to
affect the "terms, conditions, or privileges of employment, or any matter
directly or indirectly related to employment," and (4) that either (a) the
harassment was committed by a supervisor, or (b) the employer, through its agents
or supervisory personnel, knew or should have known of the harassment and
failed to take immediate and appropriate corrective action.
Hampel v. Food Ingredients
Specialties, Inc. (2000), 89 Ohio St.3d 169, 176-77, 729 N.E.2d 726. The
parties do not appear to dispute that Balazs' conduct was unwelcome, so we will
turn to a discussion of the remaining three elements.
The second element requires Hale to establish that the
harassment was based on sex. In Hampel, the supreme court noted that "any
harassment or other unequal treatment of an employee or group of employees that
would not occur but for the sex of the employee or employees may, if
sufficiently patterned or pervasive, comprise an illegal condition of
employment." Id. at 179, quoting McKinney v. Dole (C.A.D.C.1985), 246 U.S.
App. D.C. 376, 765 F.2d 1129, 1138-39. We reject the city's characterization of
Balazs' behavior as generalized joking directed toward males and females alike.
While such joking may very well have been prevalent, there is no evidence in
the record to indicate that the generalized joking ever involved naked pictures
as in this case. Thus, unless
Balazs was in the habit of displaying naked pictures of men resembling male
firefighters, we have little difficulty finding that Balazs' conduct would not
have occurred but for the fact that Hale is a woman.
Under the
third element, Hale is required to show that the harassing conduct was
sufficiently severe or pervasive to affect the terms, conditions, or privileges
of her employment. We must consider the totality of the circumstances:
Whether an environment is "hostile" or
"abusive" can be determined only by looking at all the circumstances.
These may include the frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance.
Hampel, supra, at 180,
quoting Harris v. Forklift
Sys., Inc. (1993), 510 U.S. 17, 23, 114, 126 L. Ed. 2d 295, 114 S. Ct. 367,
371. Furthermore, the severity and
pervasiveness are to be looked at together so that "deficiencies in the
strength of one factor may be made up by the strength in the other." Id.
at 181. Contrary to Hale's
assertion that she "needed only to perceive the environment to be
abusive," the harassing conduct "must be severe or pervasive enough
to create both an objectively hostile or abusive work environment-one that a reasonable
person would find hostile or abusive-and a subjectively hostile work
environment-one that the victim perceived to be hostile or abusive."
Peterson v. Buckeye Steel Casings (1999), 133 Ohio App.3d 715, 723, 729 N.E.2d
813.
We have no
difficulty in finding that Hale perceived the environment at work to be hostile
and abusive. She was unable to continue her job with the fire department. For
some time after the incident, she had difficulty performing daily tasks. She
underwent counseling and was prescribed medication. Therefore, Hale presented
sufficient facts to survive a motion for summary judgment on the subjective
prong of the analysis.
However,
Hale has failed to present sufficient facts to survive summary judgment on the
objective prong of the analysis. In looking at when harassment becomes severe
and pervasive enough to affect the terms and conditions of employment, courts
have set a high bar. Courts have repeatedly held that isolated incidents,
unless extremely serious, do not constitute a hostile work environment.
See, e.g., Faragher
v. City of Boca Raton (1998), 524 U.S. 775, 788, 118 S.Ct. 2275, 2283, 141
L. Ed. 2d 662 (stating that "'simple teasing,' * * * offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the 'terms and conditions of employment'"); Morris v. Oldham
Cty. Fiscal Court (C.A.6, 2000), 201 F.3d 784, 790; Hafford v. Seidner (C.A.6,
1999), 183 F.3d 506, 514. Despite
Hale's attempt to characterize Balazs' conduct as pervasive because he showed
the picture to around fifteen firefighters, this really cannot be characterized
as pervasive. The showing of the picture to firefighters occurred on only two
days. Thus, at
best, Balazs' actions were "isolated incidents" and as such would
have to be extremely serious to be actionable under Chapter 4112. While
we refuse to characterize Balazs' conduct as "casual joking" or
"teasing" as the city does in its brief, we cannot find that it is
extremely serious as required to create a hostile work environment actionable
under Chapter 4112. Courts have generally only found isolated incidents to
create a hostile work environment where they involve some form of sexual
assault or touching. See, e.g., Morris, supra (holding that conduct was not
severe or pervasive where co-worker told several dirty jokes in plaintiff's
presence, made one verbal sexual advance related to plaintiff's evaluation, referred
to plaintiff once as "Hot Lips," and made comments about plaintiff's
dress); Brooks v. City of San Mateo (C.A.9, 2000), 229 F.3d 917, 924 (holding
that a single incident of fondling was not severe and pervasive); Tatum v.
Hyatt Corp. (D.D.C.1994), 918 F. Supp. 5, 7 (holding that conduct was not
severe and pervasive where a co-worker wrapped his arms around the plaintiff,
rubbed against her to simulate sex, commented on her looks, and put a piece of
ice down her shirt). But, see, Little v. Windemere Relocation, Inc. (C.A.9,
2001), 265 F.3d 903, 911 (holding that an incident in which a co-worker raped
plaintiff three times was severe); Guess v. Bethlehem Steel Corp. (C.A.7,
1990), 913 F.2d 463, 464 (holding that a single incident in which plaintiff's
supervisor forced her face against his crotch was severe). Hale cites to no
case law to support her assertion that these isolated incidents were
"extremely serious." While Balazs' actions are certainly deplorable,
they simply do not constitute sufficiently severe or pervasive harassment to be
actionable under Chapter 4112. Therefore, Hale has failed to present sufficient
evidence of severe and pervasive harassment to survive a motion for summary
judgment.
Because we have held that Hale did not satisfy the third
requirement in the prima facie hostile work environment case, the issue of
whether she satisfied the fourth is moot. However, the trial court granted
summary judgment in this case because it found that Hale had not established
the fourth element. In doing so, it relied on its finding that:
The City of
Dayton acted quickly and effectively after Ms. Hale brought to its attention
the alleged conduct. Therefore, because Ms. Hale can not show that the City of
Dayton failed to implement prompt and appropriate corrective action, it fails
to satisfy all of the elements of employer liability as it pertains to hostile
work environment sexual harassment.
While we may agree with the trial court that the city
acted quickly once Hale brought the incident to the attention of her
supervisor, we do not agree that Hale failed to present sufficient evidence
regarding whether "the employer, through its agents or supervisory
personnel, knew or should have known of the harassment and failed to take
immediate and appropriate corrective action." Hampel, supra, at 177. We are particularly troubled
by the evidence that at least three supervisors had some knowledge of Balazs'
actions and failed to take any steps to report him or to stop his conduct. We
would find that Hale had presented sufficient evidence on this element to
survive summary judgment. However, because Hale failed to satisfy the third
element, we find that the trial court did not err in granting summary judgment
in favor of the City of Dayton on Hale's hostile work environment claim.
The first assignment of error is overruled.
II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY GRANTING THE DEFENDANT-APPELLEE JACK BALAZS' MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.
Under this assignment of error, Hale argues that the trial court erred in granting
summary judgment to Balazs on her claim of intentional infliction of emotional
distress. Balazs argues, and the trial court held, that summary judgment
was proper because he did not have the requisite intent to be liable for
intentional infliction of emotional distress.
To establish a claim for intentional infliction of emotional
distress, a plaintiff must show:
(1) that the actor either intended to cause emotional distress
or knew or should have known that actions taken would result in serious
emotional distress to the plaintiff, (2) that the actor's conduct was so
extreme and outrageous as to go "beyond all possible bounds of
decency" and, was such that it can be considered as "utterly
intolerable in a civilized community," * * * (3) that the actor's actions
were the proximate cause of plaintiff's psychic injury, and (4) that mental
anguish suffered by plaintiff is serious and of a nature that "no reasonable
man could be expected to endure it."
Garrison v. Bobbitt
(1999), 134 Ohio App.3d 373, 378-79, 731 N.E.2d 216. The supreme court has
further described this tort:
* * * It
has not been enough that the defendant has acted with an intent which is tortious
or even criminal, or that he has intended to inflict emotional distress, or
even that his conduct has been characterized by "malice," or a degree
of aggravation which would entitle the plaintiff to punitive damages for
another tort. Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community. Generally, the case is one in which the recitation of
the facts to an average member of the community would arouse his resentment
against the actor, and lead him to exclaim, "Outrageous!"
The
liability clearly does not extend to mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities. The rough edges of our society are
still in need of a good deal of filing down, and in the meantime plaintiffs
must necessarily be expected and required to be hardened to a certain amount of
rough language, and to occasional acts that are definitely inconsiderate and
unkind. There is no occasion for the law to intervene in every case where
someone's feelings are hurt. There must still be freedom to express an
unflattering opinion, and some safety valve must be left through which
irascible tempers may blow off relatively harmless steam.
Yeager v. Local Union 20
(1983), 6 Ohio St.3d 369, 374-75 (citations omitted).
Balazs argues that, under Yeager, Hale "must present
evidence that Balazs acted with an intent to harm her. In addition, [Hale] must
present evidence that Balazs' intent was more than tortious, more than
criminal, more than malicious and even more aggravating than what would entitle
a party to recover punitive damages." We can only characterize this as an
utter misreading of Yeager. We do not read Yeager as requiring that a defendant
have an intent level that is "more than tortious, more than criminal, more
than malicious and even more aggravating than what would entitle a party to recover
punitive damages." Rather, the quoted language from Yeager, as we
interpret it, is merely illustrating the importance of the second element of
the test-that the conduct be extreme and outrageous. Thus, we read Yeager to
say that, if the conduct is not extreme and outrageous, no amount of intent
will create a cause of action for intentional infliction of emotional distress.
The intent requirement for this tort is much less than Balazs would have us
impose. Hale need only show that Balazs "either intended to cause
emotional distress or knew or should have known " that his actions would
cause her emotional distress.
The trial
court granted summary judgment in favor of Balazs because it found that Hale
had not presented sufficient evidence to establish the intent requirement. The
trial court focused on Hale's deposition statement that, to her knowledge,
Balazs had "no intent to cause harm" to her and his statement that he
did not intend to hurt or embarrass her. The trial court further found that there
was "no evidence that Defendant Balazs knew or should have known that his
actions would cause emotional distress to the Plaintiff." We disagree.
Hale presented sufficient evidence on this issue to survive summary judgment.
Balazs stated in his deposition that Hale "had been a friend of [his] for
a long time," and he answered "Yes, I can" when asked, "Can
you see how a situation like this would be embarrassing to a female?"
Furthermore, he obviously realized that Hale was overweight given the picture
he downloaded and could have inferred that she would be sensitive about that
fact. It is also important to note that his actions took place in a
male-dominated work environment and an environment where one's body is directly
related to how well one can do his or her job. Finally, Balazs' actions were far from being an innocent
jest. Balazs showed a naked picture of an obese woman to over a dozen of Hale's
male coworkers and made statements that suggested that the woman looked like
Hale. We believe that reasonable jurors could determine given these facts that
Balazs should have known that his actions would cause Hale emotional distress.
However,
Hale must still satisfy the second, third, and fourth elements of the prima
facie case of intentional infliction of emotional distress. We have no
difficulty in concluding that she has presented sufficient evidence on the
third and fourth elements to survive summary judgment. She was unable to
continue her job with the fire department. For some time after the incident,
she had difficulty performing daily tasks. She underwent counseling and was
prescribed medication. These facts are sufficient to present a jury question
regarding whether she suffered serious emotional distress. Furthermore, she has
also presented sufficient evidence that Balazs' conduct was the proximate cause
of her emotional distress.
Therefore,
we must address the second requirement-that Balazs' conduct was "so
extreme and outrageous as to go beyond all possible bounds of decency and was
such that it can be considered as utterly intolerable in a civilized
community." It is here that the language from Yeager, quoted supra,
is particularly helpful.
We believe that the actions taken by Balazs in this case rise above the level
of "mere insults, indignities, threats, annoyances, petty oppressions, or
other trivialities." Certainly, as compared to the facts of other cases in
which courts have found summary judgment to be improper, the facts of this case
present a jury question on the issue of whether the alleged conduct was extreme
and outrageous. See, e.g., Yeager, supra (summary judgment was not
proper where defendants threatened to injure the plaintiff and made menacing
remarks about his family); Garrison,
134 OA3d 373 supra (summary judgment was not proper where defendants implied
that plaintiff would physically harm others, arrested him for a violation that
would humiliate him, and banned him from public property); Meyers v. Hot Bagels
Factory, Inc. (1999), 131 Ohio App.3d 82, 721 N.E.2d 1068 (jury verdict in favor
of plaintiff supported by sufficient evidence where owner of bagel store asked
customer repeatedly if she was "a good fuck," told her she had a
"nice firm ass," and told her a sexual anecdote). Here, Balazs showed
a naked picture of an obese woman to over a dozen of Hale's male coworkers and
made statements that suggested that the woman looked like Hale. He did so in a
male-dominated body-conscious environment. He admitted that he understood that
the situation would be embarrassing for a woman. Therefore, we find that Hale
presented sufficient evidence on the second element.
Because
Hale presented sufficient evidence to survive summary judgment on all the
elements of an intentional infliction of emotional distress claim, the trial
court erred in granting summary judgment in favor of Balazs on this claim.
The second assignment of error is sustained.
III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY GRANTING DEFENDANT-APPELLEE JACK BALAZS' MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.
Under this assignment of error, Hale argues that the trial court erred in finding that
Ohio law does not allow a claim of negligent infliction of emotional distress
where the plaintiff is not a bystander to an accident or in fear of physical
harm to herself.
Ohio courts
have long held that claims for negligent infliction of emotional distress will
not lie where the plaintiff is not "a bystander to an accident" or
"in fear of physical consequences to [her] own person."
Gearing v. Nationwide Ins. Co. (1996), 76 Ohio St.3d 34, 40, 665 N.E.2d 1115.
See, also, Bunger v. Lawson Co. (1998), 82 Ohio St.3d 463, 466, 696 N.E.2d 1029
(upholding an employee's claim for negligent infliction of emotional distress
in a worker's compensation case, but stating that "[a] claim of negligent
infliction of emotional distress is limited to instances 'where the plaintiff
has either witnessed or experienced a dangerous accident or appreciated the
actual physical peril'").
To support her argument that Ohio law permits a claim for
negligent infliction of emotional distress in sexual harassment cases, Hale
cites to Crihfield v. Monsanto Co. (S.D.Ohio 1994), 844 F. Supp. 371. In that
case, the Southern District of Ohio held that Ohio law allowed a cause of
action for negligent infliction of emotional distress "in cases of
on-the-job sexual harassment by a superior." Id. at 377. While we do not
necessarily believe that this is a correct interpretation of Ohio law, we find
Crihfield to be distinguishable from the case sub judice. Crihfield dealt with
a quid pro quo sexual harassment case in which the plaintiff was subjected to
indecent exposure and unwanted fondling by her supervisor with the prospect of
job loss if she did not submit. See id. In this case, Hale alleges hostile work
environment sexual harassment, and we have held that she did not make a prima
facie case on that claim. Furthermore, the harassment Hale complains of was
perpetrated by a co-worker, not a supervisor, and did not involve any sexual
touching or exposure. Thus, we find that, even if Ohio were to adopt
Crihfield's interpretation of Ohio law, the conduct Hale complains of would be insufficient to
establish a claim for negligent infliction of emotional distress.
Therefore, the trial court did not err in granting summary judgment to Balazs
on this claim.
The third assignment of error is overruled.
IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY GRANTING DEFENDANT-APPELLEE JACK BALAZS' MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF DEFAMATION OF CHARACTER.
Under this assignment of error, Hale argues that the trial court
erred in granting summary judgment to Balazs on her claim of defamation. The trial
court based its decision on the fact that there was no evidence that Balazs had
ever stated that the woman in the picture was Hale.
In order to state a cause of action for defamation, Hale must
establish: "(1) that a false statement of fact was made, (2) that the
statement was defamatory, (3) that the statement was published, (4) that the
plaintiff suffered injury as a proximate result of the publication, and (5)
that the defendant acted with the required degree of fault in publishing the
statement." Stanley v. City of Miamisburg, 2000 Ohio App. Lexis 205 at *17
(Jan. 28, 2000) Montgomery App. No. 17912, unreported, quoting Pollock v.
Rashid (1996), 117 Ohio App.3d 361, 368, 690 N.E.2d 903. The trial court
focused on the first requirement in its decision granting summary judgment to
Balazs. It specifically found that Balazs' showing of the picture on the
computer and his accompanying queries regarding who it resembled could
constitute a statement. Furthermore, the trial court found that the statement
tended "to cause injury to the Plaintiff's reputation or expose her to
public hatred, contempt, ridicule, shame or disgrace or affect her adversely in
her profession." However, the trial court found that the statement was not
false. We believe that a more appropriate characterization is that the
statement was not a false statement of fact.
There is no
evidence that Balazs told anyone that the woman in the picture was Hale. At
best, he asked, "Doesn't this look like Bonnie?" This is a question,
not a statement of fact. Furthermore, we find no evidence that Balazs intended
to mislead people into believing that the picture was of Hale or that anyone
was in fact misled. None of the statements by the firefighters viewing
the picture indicate that they believed it to be Hale. Some of them agree that
it looked like her, but Hale herself stated that the picture resembled her.
Therefore, Hale did not present sufficient evidence to establish a claim of
defamation, and the trial court did not err in granting summary judgment to
Balazs on that claim.
The fourth assignment of error is overruled.
The judgment of the trial court will be affirmed in part and
reversed in part. We will reverse and remand for a jury trial on the
intentional infliction of emotional distress claim. We will affirm the trial court's decision on the remaining
claims.
BROGAN,
J. and FAIN, J., concur.
Endnotes:
1. Hale asserts that four
lieutenants viewed the picture. However, the statement of one indicates that he
told Balazs that he did not have time to view the laptop and that he did not
see the picture.
2. Hale listed twelve
defendants in her amended complaint, including three John Does, the City
Manager, four City Commissioners, and the Mayor. Summary judgment was granted
in favor of all defendants. In her brief, Hale only discusses the granting of
summary judgment to the city, Balazs, and Collins. Therefore, we have limited
our discussion to those defendants. However, our decision with regard to the
city would apply as well to the city officials listed in the complaint.
3. We note that Hale does
not even attempt to argue that Balazs was a supervisor or manager, but rather
she describes him in her brief as "merely a co-employee."
4. Hale's inclusion of
Collins as a defendant in this action seems to stem mostly from her anger that
he was not more empathetic and helpful to her during the investigation of
Balazs. Even if we were to agree with Hale that Collins should have been more
sympathetic to her situation, Chapter 4112 does not provide a cause of action
against supervisors who are, at worst, rude and unsympathetic to employees
while investigating their sexual harassment claims.
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