Nоrman Fischer, Plaintiff-Appellant, v. Kent State University, Defendant-Appellee.
No. 14AP-789 (Ct. of Cl. No. 2011-07729)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
September 1, 2015
2015-Ohio-3569
HORTON, J.; DORRIAN and BRUNNER, JJ., concur.
(REGULAR CALENDAR)
Rendered on September 1, 2015
Norman Fischer, pro se.
Michael DeWine, Attorney General, and Randall W. Knutti, for appellee.
APPEAL from the Court of Claims of Ohio
HORTON, J.
{¶ 1} Plaintiff-appellant, Norman Fischer (“Fischer“), pro se, appeals from a judgment of the Court of Claims of Ohio granting defendant-appellee, Kent State University‘s (“Kent State“) motion for summary judgment. For thе following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Fischer was a professor in the department of philosophy at Kent State from 1974 until his retirement in 2010. Fischer was a member of a labor union, Kent State‘s chapter of the American Association of University Professors (“AAUP-KSU“), and was subject to the terms and conditions of the Collective Bargaining Agreement (“CBA“) between Kent State and the AAUP-KSU. (R. 49, 54.) Over the years, Fischer was involved in numerous disputes with Kent State, which led in one instance to a settlement
{¶ 3} Fischer responded by filing multiple unsuccessful lawsuits against Kent State and its employees in the Portage County Common Pleas Court, the Court of Claims of Ohio, and the United States District Court. (R. 49.) Fischer also filed an unsuccessful claim with the U.S. Equal Employment Opportunity Commission (“EEOC“). (R. 16, 49, 58.)
{¶ 4} On April 30, 2010, a meeting of Kent State‘s Department of Philosophy Faculty Advisory Committee (“FAC“) discussed alleged deficiencies in Fischer‘s performance of his instructional duties as a prоfessor. Fischer attended the meeting and had the opportunity to speak on his own behalf. The President of AAUP-KSU also attended at the request of Fischer. At the meeting, three different motions overwhelmingly passed recommending that Provost Robert Frank consider sanctions agаinst Fischer. (R. 49, 54.)
{¶ 5} On July 19, 2010, Provost Frank sent Fischer a letter stating that:
Pursuant to the Collective Bargaining Agreement between Kent State University and the tenure-track faculty unit of the Kent State Chapter of the American Association of University Professors (AAUP-KSU), Article VIII, Sanctions for Cause, I write to inform you that the University, through my office as Provost and Senior Vice President for Academic Affairs, intends to proceed with sanctions for cause against you.
* * *
A full and complete review of this matter will be undertaken in accord [with] the procedures outlined in the Collective Bargaining Agreement.
(Emphasis sic.) (R. 41, 54.) Fischer provided his notice of retirement to Kent State on August 5, 2010.
{¶ 6} On May 20, 2011, Fischer filed a second complaint in the Court of Claims and, on January 23, 2012, an amended complaint, asserting claims of defamation, breach of contract, intentional infliction of emotional distress, retaliation, and violations of his
[C]ertain employees of defendant knowingly made false and malicious statements and allegations about him with regard to his conduct as a professor. Plaintiff asserts that the correspondence dated May 4, 2010, from the Chair of the Faculty Advisory Committee (FAC) of the Department of Philosophy, David Odell-Scott, to Provost Robert Frank, which refers to the April 30, 2010 FAC meeting, and a letter dated July 19, 2010 to plaintiff from the Provost, were defamatory and retaliatory in nature, adversely affected his employment, and caused him emotional distress. * * * . Plaintiff also alleges that defendant intentionally maintained false or inaccurate personal information about him, in violation of
R.C. 1347.10 , and that defendant failed to comply withR.C. 149 when it did not furnish him with public records about his employment. Plaintiff also asserts that defendant violated a settlement agreеment dated October 17, 1996, and that several of defendant‘s employees violated his First Amendment rights. Finally, plaintiff asserts that the May 4 and July 19, 2010 letters constitute retaliation.
(Decision, 2.)
{¶ 7} On September 5, 2014, the court granted Kent State‘s motion for summary judgment, found that there are no genuine issues of material fact, and held that:
[D]efendant is entitled to judgment as a matter of law on plaintiff‘s claims of defamation and violations of
R.C. 1347.10 . The court further finds that it lacks jurisdiction over plaintiff‘s claims of breach of contract, intentional infliction of emotional distress, retaliation, cоnstitutional claims, and violations ofR.C. 149 , and those claims are therefore DISMISSED. Accordingly, defendant‘s motion for summary judgment shall be granted.
(Decision, 10.)
II. ASSIGNMENTS OF ERROR
{¶ 8} Fischer appeals, assigning the following as error:
[I.] On September 5, 2014 Count III, Violation of State law 1347, of my Court of Claims law suit no 2011-07729. Norman Fischer v Kent State University, amended January 23, 2012. [sic] was summarily dismissed by Judge McGrath.
[III.] On the same day Judge McGrath also dismissed Count I Intentional Infliction of Emotion [sic] Distress.
[IV.] On the same day Judge McGrath also dismissed Count VII Retaliation.
[V.] On the same day Judge McGrath also dismissed Counts [sic] II Defamation.
[VI.] On the same day Judgе McGrath also dismissed Counts [sic] VI Violation of the First Amendment and Article I of the Ohio Constitution.
[VII.] On the same day Judge McGrath also dismissed Count IV Violation of State law 149.
III. STANDARD OF REVIEW
{¶ 9} Appellate review of summary judgment motions is de novo. Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). “When reviewing a trial court‘s ruling on summary judgment, the court of appeаls conducts an independent review of the record and stands in the shoes of the trial court.” Mergenthal v. Star Bank Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997).
{¶ 10} Pursuant to Civ.R. 16(A)(3), an appellant‘s brief must contain “[a] statement of the assignments of error presented for review, with reference to the place in the record where eаch error is reflected.” Assignments of error must designate specific rulings that the appellant wishes to challenge on appeal. Dailey v. R & J Commercial Contracting, Inc., 10th Dist. No. 01AP-1464, 2002-Ohio-4724, ¶ 17. Here, Fischer‘s assignments of error are merely a list of Fischer‘s dismissed claims, with no specificity as to any alleged error.
{¶ 11} Appellate courts have discretion to dismiss appeals for failure to follow the Rules of Appellate Procedure. App.R. 3(A); CitiMortgage, Inc. v. Asamoah, 10th Dist. No. 12AP-212, 2012-Ohio-4422. This court notes that Fischer‘s brief is at times rambling and hard to follow. However, in the interest of justice, we will review Fischer‘s arguments.
{¶ 12} In Fischer‘s first assignment of error, he alleges that the trial court erred by granting summary judgment on his claim that Kent State violated
{¶ 13}
{¶ 14} EEOC filings and proceedings are public records of which a court may take judicial notice. See Bland v. Fairfax Cty., Va., E.D. Virginia No. 1:10CV1030 (June 29, 2011), citing Pearson v. PeopleScout, Inc., N.D. Illinois No. 10c5542 (Apr. 26, 2011), fn. 1; Robinson v. Heritage Elementary School, D. Arizona No. CV-09-0541 (Apr. 15, 2011); and Gallo v. Bd. of Regents of Univ. of Cal., 916 F.Supp. 1005, 1007 (S.D.Cal.1995).
{¶ 15} We agree with the trial court that Kent State‘s EEOC brief is a public record pursuant to
V. SECOND, THIRD, AND FOURTH ASSIGNMENTS OF ERROR – STATUTORILY PREEMPTED
{¶ 16} We will discuss Fischer‘s second, third, and fourth assignments of error together, as they are related. Fisсher contends that the trial court erred when it found that, per
{¶ 18}
{¶ 19} We agree with the trial court that Fischer‘s breach of contract claims are based upon the terms of his employment and are preempted by the CBA. In order for us to determine whether Chair Odell-Scott and Provost Frank acted in a manner that could possibly be retaliatory, or intended to cause emotional distress, we would need to examine the CBA policy on sanctions. As such, these claims are also preempted.
{¶ 20} Additionally, pursuant to
{¶ 21} Construing the evidence most strongly in favor of Fischer, his claims are predicated on allegedly wrongful conduct that is directly related to the terms and conditions of his employment, and such claims are dependent on an analysis or interpretation of the CBA. Accordingly, those claims are prеempted by the CBA, and the
VI. FIFTH ASSIGNMENT OF ERROR – DEFAMATION CLAIMS BARRED
{¶ 22} In his fifth assignment of error, Fischer alleges that the trial court erred in dismissing his claim of defamation against Kent State. A claim for defamation “shall be commenced within one year after the cause of action accrued.”
{¶ 23} Fischer asserts in his amended complaint that his cause of action arose on May 20, 2009. Fischer filed his complaint on May 20, 2011. Accordingly, pursuant to
{¶ 24} Fischer next claims that statements made by Provost Frank in his July 19, 2010, letter to Fischer (R. 41, 54), notifying him that Kent State intended “to proceed with sanctions for cause against you” were defamatory. (R. 49.) While this claim is not barred by the statute of limitations, the statements in question are рrotected by a qualified privilege.
{¶ 25} This court in Mallory v. Ohio Univ., 10th Dist. No. 01AP-278 (Dec. 20, 2001), has discussed the purpose of a qualified privilege as follows:
“The purpose of a qualified privilege is to protect speakers in circumstances where there is a need for full and unrestricted communication concerning a matter in which the parties have an interest or duty. Hahn v. Kotten (1975), 43 Ohio St.2d 237, 246 * * *. A qualified privilege exists when a statement is: 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. * * * ”
Further, “[t]he essential elements of a communication protected by qualified privilege are: ‘[1] good faith, [2] an interest to be upheld, [3] a statement limited in its scope to
this purpose, [4] a proper occasion, and [5] publication made in a proper manner and to proper parties only.‘” Austin, quoting Jacobs v. Frank (1991), 60 Ohio St.3d 111, 114. Finally, “[i]f a defendant establishes all five elements for the application of a qualified privilege, a plaintiff can defeat its application only by showing by clear and convincing evidence that the defendant acted with actual malice.” Austin, supra.
Id. at 8.
{¶ 26} The letter of July 19, 2010, was sent by Provost Frank to Fischer pursuant to the CBA, and was part of Provost Frank‘s duties for Kent Stаte. Fischer has not provided any evidence, other than his own assertions, that Provost Frank, or anyone else involved in this case, acted with actual malice. We find that the trial court was correct in finding that a qualified privilege exists as to Provost Frank‘s letter of July 19, 2010.
{¶ 27} Fischer‘s remaining allegations of defamation are with regard to statements made by both attorneys and witnesses during the proceedings of his EEOC claim, and affidavits and depositions taken in this matter. (R. 49.) Attorneys and witnesses are extended an absolute immunity from claims of defamation for matters rеlevant to judicial proceedings. Willitzer v. McCloud, 6 Ohio St.3d 447, 448-449 (1983). The affidavits and depositions taken in either the EEOC matter, or in this matter, are absolutely immune.
{¶ 28} In summary, whether barred by the statute of limitations, a qualified privilege, or immunity, none of Fisher‘s defamation claims have merit. Fischer‘s fifth assignment of error is ovеrruled.
VII. SIXTH AND SEVENTH ASSIGNMENTS OF ERROR – COURT OF CLAIMS LACKS JURISDICTION
{¶ 29} In his sixth assignment of error, Fischer maintains that the trial court erred when it held that it lacked jurisdiction to hear claims that Kent State violated his rights under the First Amendment of the United States Constitution, and Article I of the Ohio Constitution. Fischer‘s seventh assignment of error challenges the trial court finding thаt it lacked jurisdiction to hear his claim alleging a violation of
{¶ 30} Any claim of a constitutional rights violation must be brought pursuant to
{¶ 31} Fischer alleges that Kent State failed to comply with some of his discovery requests, and violated Ohio‘s Public Records Act. Even if Kent State violated
VIII. DISPOSITION
{¶ 32} Having overruled Fischer‘s seven assignments of error, the judgment of the Court of Claims of Ohio is affirmed.
Judgment affirmed.
DORRIAN and BRUNNER, JJ., concur.