2004 Ohio 6621 | Ohio Ct. App. | 2004
{¶ 2} The record reveals that plaintiffs Charles Davis, George Early and Annie Smith are or were employed as police officers with the City of Cleveland ("City") in its police department. At all times relevant to this case, Davis was a sergeant in the department, responsible for supervising both Early and Smith, while Davis was supervised by defendants-appellees, Commander Lloyd Bratz and Captain Joseph Sadie. All of the officers worked in the Bureau of Community Police ("BCP"), a unit of the police department aspiring to reduce crime through greater police presence.
{¶ 3} In February 2001, Davis, Early and Smith, all whom are African-American, filed a complaint against the City, Bratz and Sadie (collectively referred to as the "City" where appropriate), alleging racial discrimination, defamation and invasion of privacy. Early died during the pendency of the action and was subsequently dismissed from the case. The City moved for summary judgment on the defamation and invasion of privacy claims asserted by the remaining plaintiffs and on the discrimination claim asserted by Smith. The trial court granted the motion.
{¶ 4} The discrimination claim asserted by Davis, however, remained pending and ultimately went to trial, at which time a jury rendered a verdict against the City and awarded Davis damages totaling $8,600.00. Smith is now before this court and appeals the grant of summary judgment to the City on all of her claims.1
{¶ 5} An appellate court reviews a trial court's decision on a motion for summary judgment de novo. Grafton v. Ohio EdisonCo. (1996),
{¶ 7} It is undisputed that Smith is a member of a protected class and appeared to be performing her job somewhat satisfactorily, despite infractions of some department rules. The City maintains that summary judgment was properly granted on this claim, however, because Smith cannot demonstrate that she suffered an adverse employment action. Indeed, Smith continues to be employed as a police officer and, according to the City, has not been subject to a significant change in employment status, such as being discharged, demoted or having her benefits reduced.
{¶ 8} Smith, on the other hand, contends that she has suffered several instances of adverse employment action. In particular, she contends that she was reprimanded in front of her fellow officers, placed on probation for sick leave abuse and subjected to discipline for actions that similarly-situated non-minority officers were not.
{¶ 9} In order to demonstrate that an adverse employment action has occurred, a plaintiff must establish that employer conduct caused a "materially adverse change in the terms and conditions of employment." Kocsis v. Multi-Care Mgt., Inc.
(C.A.6, 1996),
{¶ 10} "[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Hollinsv. Atlantic Co. (C.A.6, 1999),
{¶ 11} The anti-discrimination statutes, however, do not insulate an employee from discipline for "violating the employer's rules or disrupting the workplace." Rose v. BuckeyeTelesystem, Inc. (N.D.Ohio 2001),
{¶ 12} We will discuss in turn each of the incidents that Smith contends constituted an adverse employment action.
{¶ 14} A "Letter of First Warning" is considered "Step One" of the Sick Leave Abuse Program, which requires the officer to obtain a physician's certificate clearly justifying each day of sick leave taken for the next nine months. This letter becomes part of the employee's employment record, as does any response by the employee.
{¶ 15} Disciplinary action in the form of a written warning may constitute an adverse employment action when the warning affects an employee's opportunity for promotion and pay raises or may place the employee on probation. Rose v. Buckeye Telesystem,Inc.,
{¶ 16} Here, Smith argued that the written warning issued to her prevented her from working secondary employment, a privilege of employment. Some courts2 may construe such a warning letter as an adverse employment action because it has thepotential to affect a privilege of employment. We find it unnecessary to reach this issue, however, because the documentary evidence appended to Smith's brief opposing the City's motion indicates that this warning letter was removed from her personnel record and, therefore, any possible complaint has been remedied.
{¶ 18} Although a formal reprimand may constitute an adverse employment action under certain circumstances, absent evidence that it is anything more than mere criticism, a verbal
reprimand does not. See Nickell v. Memphis Light, Gas WaterDiv. (C.A.6, 2003), 76 Fed.Appx. 87, citing Morris v. OldhamCounty Fiscal Court (C.A.6, 2000),
{¶ 20} As stated previously, a "materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience * * *." Hollins,
{¶ 22} The parties dispute whether the typing of these type of reports is a form of discipline. The City avers that it is not, while Smith avers that it is.
{¶ 23} "Generally, a party's unsupported and self-serving assertions, offered by way of affidavit, standing alone and without corroborating materials under Civ.R. 56, will not be sufficient to demonstrate material issues of fact. Otherwise, a party could avoid summary judgment under all circumstances solely by simply submitting such a self-serving affidavit containing nothing more than bare contradictions of the evidence offered by the moving party." Bell v. Beightler, 10th Dist. No. 02AP-569, 2003-Ohio-88, at ¶ 33. (Citations omitted.)
{¶ 24} Smith avers that she was required to "type lengthy reports," which she avers is "known to the members of the City Police Department to be a form of discipline * * *." Yet nowhere does she corroborate this averment with documentary evidence acceptable under Civ.R. 56. This averment is nothing more than a self-serving statement and does not create an issue of fact precluding summary judgment.
{¶ 25} Because none of the conduct discussed in this section constitutes an adverse employment action, the trial court did not err in dismissing her claim for racial discrimination.
{¶ 27} Smith claimed that she "joined in" with Davis in his EEO complaint filed in March 2000, which is a protected activity. Shortly afterwards, she claimed that she was subjected to retaliatory conduct by the City as discussed in Section I. The record, however, indicates otherwise.
{¶ 28} The EEO Investigative Findings and Recommendations, appended to both parties' briefs, indicated that Davis was the complainant and the focus of the investigation. Davis was the subject of the findings made by the investigator, Caroline Watson, as were the recommendations made. The report merely mentioned Smith as "support[ing] Sgt. Davis'[s] allegations * * *." To be sure, Smith filed an EEO complaint, but not until June 12, 2000, after the alleged incidents that she claims constituted instances of adverse employment action.
{¶ 29} Nonetheless, Title VII broadly protects an employee's participation "in any manner in an investigation, proceeding, or hearing under * * * [Title VII]." Section 2000e-3(a), Title 42; see, also, Booker v. Brown Williamson Tobacco Co. (C.A.6, 1989),
{¶ 30} Nevertheless, Smith is unable to demonstrate that the City took any adverse employment action as a result of her protected activity. We have determined that the incidents she claims are, in fact, not retaliatory discrimination are not adverse employment actions. Because she relies on the same conduct discussed in Section I to support her retaliation claim, the claim must fail.
{¶ 31} The trial court, therefore, did not err when it dismissed her retaliation claim under Title VII.
{¶ 33} R.C.
{¶ 34} Although it is well established that R.C.
{¶ 35} The City alternatively argued that it was nonetheless entitled to judgment in its favor as a matter of law because the statements at issue were privileged and, therefore, not defamatory. The City argued that it was similarly entitled to summary judgment on Smith's claim for invasion of privacy because the conduct of which she complains does not constitute invasion of privacy as a matter of law. Smith, on the other hand, argued in opposition that genuine issues of material fact exist precluding summary judgment on both of these claims.
{¶ 37} The allegedly defamatory statements that served as the basis of Smith's claim involve comments made by Bratz (1) at a staff meeting attended by Sadie, Davis and three other non-party officers; and (2) in a memorandum to the Chief of Police, Martin Flask, and Deputy Chief of Field Operations, Patrick Stephens.
{¶ 38} The staff meeting comments were made subsequent to the roll call incident discussed previously in Section I(B). From the tenor of the transcript of this meeting, Bratz considered Smith's response to this incident unwarranted and questioned her fitness to carry a gun. In this regard, he requested a psychiatric examination and made comments to the effect that she "shouldn't be a police officer" if she gets upset over such an incident.
{¶ 39} The City contends that these comments are "privileged" because they were made among Smith's supervising officers about her job performance. Smith disagrees.
{¶ 40} A defendant in a defamation action can assert the defense of qualified privilege. Hahn v. Kotten (1975),
{¶ 41} The Hahn court further explained:
{¶ 42} "`A publication is conditionally or qualifiedly privileged where circumstances exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to a certain other person to whom he makes such communication in the performance of such duty, or whether the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he in good faith proceeds to do. This general idea has been otherwise expressed as follows: A communication made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation. The essential elements of a conditionally privileged communication may accordingly be enumerated as 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. The privilege arises from thenecessity of full and unrestricted communication concerning amatter in which the parties have an interest or duty, and is notrestricted within any narrow limits.'" Id. at 245-246, quotingWest v. Peoples Banking Trust Co. (1967),
{¶ 43} It has, therefore, become generally well established that a communication made in good faith on a matter of common interest between an employer and an employee, or between two employees concerning a third employee, is protected by qualified privilege. See, e.g., Evely v. Carlon Co., Div. of Indian Head,Inc. (1983),
{¶ 44} "The defense of qualified privilege is deeply rooted in public policy. It applies in a variety of situations where society's interest in compensating a person for loss of reputation is outweighed by a competing interest that demands protection. Accordingly, the privilege does not attach to the communication, but to the occasion on which it is made. It does not change the actionable quality of the publication, but heightens the required degree of fault. This affords some latitude for error, thereby promoting the free flow of information on an occasion worthy of protection." A B-AbellElevator Co.,
{¶ 45} In this case, we find that Bratz's statements were subject to qualified privilege. The comments made at the staff meeting were made among and between those officers responsible for supervising Smith, all of whom have a common interest in providing police protection within the department's jurisdiction. Certainly it is essential among supervising officers to be able to discuss subordinate employees, their conduct and the discharge of their duties. It is incumbent upon them to discuss employee performance, not only as part of their specific duties as supervisors, but as part of their more general duty as supervising police officers charged with a duty to provide police protection to the public. Bratz would be derelict in his duty as a commanding officer if he could not comment on an officer's fitness for duty to other supervising officers, especially when that duty involves the responsibility of carrying a weapon. Moreover, the comments were made at a staff meeting, which was attended only by persons with a need to know the information and whom were capable of implementing a necessary course of action.
{¶ 46} The same is true regarding Bratz's comments in a memorandum to Flask and Stephens referring to Smith as a "non-performer." The memorandum was addressed to Flask and Stephens only, Bratz's superior officers. The reference to Smith was only part of a longer memorandum that discussed many issues with which Bratz, Flask and Stephens shared a common interest. We see no difference between these comments and those made at the staff meeting.
{¶ 47} Notwithstanding our finding that these statements were subject to a qualified privilege, statements made with actual malice can defeat a finding of privilege. Jacobs v. Frank
(1991),
{¶ 48} We see nothing in the parties' documentary evidence to indicate that Bratz's comments were made with actual malice. Bratz's comments during the staff meeting were based on events that took place during roll call and were confined to Smith's conduct in response to that incident. Bratz's reference to Smith as a "non-performer" was his assessment of her job performance as relayed to his supervising officer. Without more, we are unwilling to say that Bratz's conclusion regarding Smith's job performance was made with actual malice.
{¶ 49} Because no genuine issue of material fact remained to be litigated on Smith's claim for defamation, the trial court did not err in granting summary judgment to the City on this claim.
{¶ 51} In her amended complaint, Smith alleged the second type of invasion of privacy claim, the "publication of her private affairs." Smith takes issue with the publication of the "Quarterly Sick Leave Report," which listed the reasons for sick leave among the BCP officers during that particular quarter. In a memorandum from Bratz to Deputy Chief Stephens that was later reproduced in a memorandum from Davis to Captain Sadie, the reasons for sick were listed for eight different employees, one of which was Smith.
{¶ 52} To prevail on such a claim, Smith must establish that the publication (1) was a public disclosure; (2) disclosed facts concerning her private life; (3) publicized a matter that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (4) was intentional; and (5) is not a legitimate concern to the public. Patrolman "X" v. Toledo,
{¶ 53} The City in this case is entitled to judgment in its favor as a matter of law because Smith is unable to establish that publication of the Sick Leave Report constitutes a "public disclosure." "Publicity" means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The Restatement of the Law 2d, Torts (1977) 384, Section 652D, Comment a. "[Publicity is] communication that reaches, or is sure to reach, the public." Id.; see, also, Killilea v. Sears Roebuck Co. (1985),
{¶ 54} Consequently, it was not error for the trial court to grant the City judgment in its favor as a matter of law on Smith's invasion of privacy claim.
{¶ 55} Smith's sole assignment of error is not well taken and is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Karpinski, P.J., and Rocco, J., concur.