Workplace Investigations: Employee Rights and Privacy

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August 20, 2018
Author: John S. Marshall
Organization: Marshall and Morrow, LLC

I. Weingarten Rights/ Can I Get a Witness?
When investigating employees for possible wrongdoing that can result in disciplinary action it is important to know who can be in the room during those investigations. The National Labor Relations Board (NLRB) and Supreme Court have had several occasions to interpret the National Labor Relations Act’s (NLRA or Act) §7 that states: “the rights of employees are protected to engage in concerted activities for . . . mutual aid and protection.” The Board and Supreme Court has held that §7 means that when employees reasonably believe that discipline can result from an investigation they have the right to ask for the assistance of a representative, and this protection extends to union shops, N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975), public employers Nat'l Aeronautics & Space Admin. v. Fed. Labor Relations Auth., 527 U.S. 229 (1999), and private non-union shops Epilepsy Found. of Ne. Ohio v. N.L.R.B., 00-1332, 2002 WL 1331873 (D.C. Cir. Mar. 29, 2002).

The seminal case that articulated the rights of employees during workplace investigations is N.L.R.B. v. J. Weingarten, Inc., In Weingarten, an employee was being investigated for the possible theft of chicken from the café, when a co-worker accused her of taking a large box and only paying for a small box of chicken. When the store security questioned the employee she asked several times for representation from her union steward, each request was denied by the investigator. She then filed a grievance with the NLRB which held that the employer engaged in an unfair labor practice, and the employer then appealed all the way to the Supreme Court.

In affirming the Board’s decision the Court held that an employer is in violation of the Act for an unfair labor practice when 1) an investigatory interview takes place, 2) the employee requests representation of a union steward and that request was denied 3) the employee reasonably believed that the interview might result in disciplinary action and 4) subsequent to the employer’s denial of representation the employer compelled the employee to continue the interview. The Court explained that this right is narrow and only applies to those situations where the employee reasonably believes that interview will result in discipline. The Court stated that they would not impose these representation rights on situations such as run-of –the-mill shop-floor conversations where supervisors give instructions or correct work techniques.

The Court extended the Weingarten rights to employees in the public sector in Nat'l Aeronautics & Space Admin. v. Fed. Labor Relations Auth. In NASA, the Court was presented with the question of whether an investigator employed the department’s Office of Inspector General (OIG) can be considered a representative of that department when conducting an investigation of public employees. In NASA, the OIG was investigating possible threating activity that was reported to them by the FBI.

During the interviews the OIG allowed for a union representative to be present but only allowed the representative to participate in a limited capacity. Due to this limited capacity the Union filed a grievance, and an ALJ held that NASA conducted an unfair labor practice by limiting the union’s participation during the investigation. NASA argued that the OIG was not a representative as defined by the Act, but the Supreme Court rejected that argument and upheld the ALJ holding: considering an OIG investigator not to be a representative of the employer to determine whether Weingarten rights are available would frustrate Congress’ purpose with the Act and having the union representative at the interview would not obstruct the investigation but more likely would help facilitate the fact finding in the interview.

Finally, Weingarten were extended to workers in the non-unionized private sector in Epilepsy Found. of Ne. Ohio v. N.L.R.B., In Epilepsy Fund, two doctors had written a memo about how they did not approve of their supervisors’ methods, and the supervisor requested a meeting with one of the doctors. He requested that the other doctor be present at the meeting, this request was denied, and he was terminated the next day. After filing a grievance the NLRB held that private employees are allowed to request representation during investigatory interviews, the employer appealed that decision, and the district court upheld the NLRB’s ruling.

In upholding the ruling the court deferred to the Board’s interpretation of the Act. The NLRB held that § 7 of the Act applied to all work places and not just union workplaces. Further, the court reasoned that allowing co-workers to be representatives in investigatory interviews helps mitigate against the chance that an employer will hand down arbitrary or unjust discipline, meaning that co-workers have a shared interest in the mutual aid of having co-worker representation. The court rejected the employer’s argument that having a co-worker present during the interviews would be the same as negotiating with the co-worker which is not allowed in non-union workplaces, stating that the employer merely had to deal with the third party co-worker and not bargain with them.

The protections of Weingarten only apply to those situations where employees reasonably believe that they are participating in an interview where the result of that interview could be disciplinary action against them. Cleveland Assn. of Rescue Emp. v. State Emp. Relations Bd., 134 Ohio App. 3d 100, 730 N.E.2d 426 (1999), address exactly when an employee has reason to believe that an interview will result in disciplinary action.

Several ambulance crews were being investigated in relation to a high profile traffic accident where one of the ambulance crews falsified records of the runs related to the accident. When one of the EMTs requested union representation he was told that none of the other EMTs had requested representation. When that EMT persisted in asking for representation he was told that he would be brought up on charges unless he cooperated with the interview. A second EMT was in the hallway waiting to be interviewed when he overheard this exchange and when he was interviewed did not ask for representation out of fear of reprisal for making the request. A third EMT believed that the interviews were being conducted so that the department could find a scapegoat because the accident and possibly falsified run sheets had led to a high level of media

All three EMTs filed a grievance against their employer, the employer stated that the second EMT never requested representation and the interviews were not used to discipline the EMTs. The court rejected these arguments stating that it would be unreasonable for the second EMT to have requested union representation after witnessing the harsh response to the requests of the first EMT so he was deemed to have constructively requested recommendation. As for the second argument the court held that employees only need a reasonable belief that discipline might occur as a result of the interview, they do not need to be correct in their beliefs. And here where there was such public pressure to find wrong doing from the ambulance crews it was reasonable for the EMTs to believe that discipline would result from the interviews.

The courts have not extended Weingarten protection to all situations. In Ely v. Newell-Rubbermaid Inc., 50 Fed.Appx. 681 (6th Cir. 2002), an employee worked for the company for nearly twenty years when an accident reduced her ability so that she could only work in a custodial position. Her performance as a custodian suffered greatly, and on several occasions a supervisor had to show her how to properly perform her assigned tasks. At one point the employee had a disagreement about her assigned area and asked for a union steward to meet with her supervisor to define her assigned area and the supervisor met with the union steward. After several more months of poor performance the employee was terminated, and she filed a grievance with the NLRB stating that she was not allowed representation at the meeting where the final termination decision was made in violation of her Weingarten rights.

The court rejected her arguments holding that Weingarten rights are only available when the employer is in an investigatory role and not a decision-making role. The court reasoned that if union representation was allowed in decision-making meetings it would hamper businesses ability to privately make important personnel decisions. However, the court did note that, had the employee asked for representation when she was being counseled on her performance. Weingarten protections may have applied.

In sum, employees in all types of working environments, union, non-union, and public, are afforded protections of representation during investigatory interviews. But only if they have a reasonable belief that that interview will result in discipline and is not merely a decision making meeting.

II. What if I don’t want to?
Private employees may be terminated for insubordination if they refuse to answer work-related questions from their employer. Privacy rights are discussed in a separate section, but as a general matter private employers may pursue investigation of misconduct or job performance and compel under threat of discipline or discharge an employee to cooperate.

In Sturgeon v. Lucas Plumbing & Heating, Inc., 9th Dist. Lorain No. 11CA010010, 2012 -Ohio- 2240, denial of an unemployment compensation claim was affirmed because insubordination constitutes just cause for termination. The employer’s president testified that the employee “was terminated because she refused to cooperate in the company's investigation concerning another former employee.” Id. at ¶ 14. She cohabitated with the former employee, who had been discharged for doing work on the side, and the president “wanted to determine whether Ms. Sturgeon knew of [his] violations and whether she was also violating company policy by directing customers to [him].” Id. The president convened a meeting with the employer’s lawyer and the former employee, reasoning that she held a “sensitive position in the company” because she “answered all the incoming calls, she was in a position to be able to direct customers to Mr. Roberts instead of the company.” Id. She refused to answer any questions and was discharged for insubordination.

Public employees have protection by use immunity under Garrity v. New Jersey, 385 U.S. 493 (1967), from use in criminal proceedings of statements obtained under threat of job loss. In State v. Graham, 136 Ohio St.3d 125, 2013-Ohio-2114, 991 N.E.2d 1116, ¶ 1, that protection applied to “statements by employees of the Ohio Department of Natural Resources (‘ODNR’) during an investigation conducted by the Ohio inspector general (‘OIG’).”

The court explained that “[a] state may compel a public employee's cooperation in a job-related investigation, so long as the employee is not asked to surrender the privilege against self-incrimination.” Id. at ¶ 21. Thus, from an employment law perspective, the key point is that employee may be required to answer questions notwithstanding the Fifth and Fourteenth Amendments.

Graham added that “the employee claiming coercion must have believed that his or her statement was compelled on threat of job loss and this belief must have been objectively reasonable. In examining whether an employee's belief was objectively reasonable under the circumstances, evidence of an express threat of termination or a statute, rule, or policy demanding termination will almost always be sufficient to show coercion.” Id. at ¶ 24. The employees’ belief satisfied that standard because they “had received the ODNR Notice of Investigatory Interview warning that their failure to answer truthfully ‘may lead to disciplinary action up to and including termination.’” Id. at ¶ 25. The court distinguished that “threat” from a “general directive to cooperate.” Id. at ¶ 27.

In State v. Jackson, 125 Ohio St.3d 218, 2010–Ohio–621, 927 N.E.2d 574, ¶1, Garrity was applied to direct or derivative use, including in grand jury proceedings, of “a public employee's statement given during an internal investigation under the threat of the employee's termination from office” along with a promise of use immunity as to any incriminating statements made. A police officer had been involved in a bar fight while on administrative leave, and Internal Affairs investigated his possession of a firearm in the bar. The investigator gave a Garrity warning:

This questioning concerns administrative matters relating to the
official business of the Canton Police Department. During the
course of this questioning, if you disclose information which
indicates that you may be guilty of criminal conduct, neither your
self-incriminating statements nor the fruits of any selfincriminating
statement you made will be used against you in any
criminal legal proceedings. Since this is an administrative matter
and any self-incriminating information you may disclose will not
be used against you in a court of law, you are required to answer
my questions fully and truthfully. * * * If you refuse to answer
all my questions, this in itself is a violation of the rules and
procedures of the department, and you will be subject to separate
disciplinary action. Id. at ¶ 4.

Absent such a Garrity warning or a disciplinary threat as in Graham, the requisite coercion may be deemed missing. In State v. Yacchari, 12th Dist. Clermont No. CA2010–12–098, 2011-Ohio-3911, ¶ 28, the role of coercion was emphasized: “Garrity does not hold that an employer is forbidden from obtaining voluntary statements from an employee that might possibly be used in subsequent criminal proceedings; but rather that the statement cannot be the result of coercion such that the statements are involuntary because the employee was forced to choose between substantial employment sanctions or the forced waiver of a constitutional right.” The court rejected an interpretation of Garrity “that a duty to cooperate with one's employer is inherently tantamount to coercion.” Id.

The State Trooper there was investigating an allegation of on-the-job theft by an Ohio Department of Transportation (ODOT) employee and had “never communicated, threatened, or forewarned Yacchari of any job-related sanction for refusing to answer his questions.” Id. The Trooper “expressly warned Yacchari that he had the right to remain silent and did not insinuate in any way that Yacchari would face repercussions if he chose to invoke his right to remain silent.” Id.

The court did not convert ODOT policies which required cooperation with investigations into the requisite coercion. Id. at ¶ 43. “[C]ompulsion and cooperation are distinguished from coercion.” Unlike the employer’s policy in Graham, the ODOT policy warning about “possible dismissal for failure to cooperate” was not as coercive: “[T]he Directive did not threaten loss of job (or even substantial penalties) should the employee interfere with or fail to cooperate in an official investigation on a single occasion.” Id. at ¶ 46. Nor, as in Graham, had the policy been contemporaneously given to the employee during the investigation: “Even if the Directive had listed removal or some other substantial penalty for not cooperating for a first offense, there is nothing in the record to indicate that the Directive played any part in the interview process.” Id. at ¶ 47. “An employee's mere knowledge that work policies favor cooperation in an official investigation comes nowhere close to the same standards and circumstances inherent in Garrity cases, where the employee is coerced into answering questions and incriminating himself to prevent job loss.” Id. The employee had not been deprived of “free choice to admit, deny, or refuse to answer.” Id. Under those circumstances, the Fifth Amendment had to be invoked to trigger an employee’s threat.

The State Trooper interviewed the employee at his workplace, but the court was not persuaded: “The mere fact that the interview took place at Yacchari's place of work is meaningless, as no constitutional right forbids officers from interviewing suspects at their place of employment. ODOT was not involved in the criminal proceedings and Yacchari received no assurance or promise that his statement, or the fruits of the statement, would not be used in a later criminal proceeding. In fact, he was given the opposite warning, that anything he said would be used against him.” Id. at ¶ 48.

III. What if I say too much?
Employees’ statements during a workplace investigation constitute opposition activity statutorily protected from retaliation when they disclose conduct the employee sincerely and reasonably believed had been discriminatory. In Crawford v. Metro. Govt. of Nashville & Davidson Cty., Tenn., 55 U.S. 271 (2009), an employer’s investigation of sexual harassment asked an employee who had not brought the allegation about what she had seen and suspected, she unloaded in her answers, and was fired. Even though she had not actively opposed discrimination against herself or another employee, the court held that answering questions in that context is protected activity. In Meyers v. Goodrich Corp., 8th Dist. Cuyahoga No. 95996, 2011 -Ohio- 3261, ¶ 20, the vice-president of human resources was conducting an investigation of racial discrimination, but the employee “did not tell [her] of any instance of racial discrimination.” The court rejected application of Crawford. Then, though, the court found protection under the participation, rather than opposition, clause of R.C. 4112.02(I). The participation “began as a racial discrimination investigation” when Human Resources acted on an anonymous hotline allegation of discrimination and the employee agreed to participate in that investigation. Id. at ¶ 21. Ultimately, causation could not be proved, but the recognition of protected activity went beyond Crawford. For public employees, the First and Fourteenth Amendments protect nondisruptive speech on a matter of public concern from an adverse employment action because of that speech. Connick v. Myers, 461 U.S. 138, 147 (1983). Discrimination by a public employer is a matter of public concern, but the crucial fact has become whether the employee spoke within his or her job duties, rather than as a private citizen. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).

The totality of the circumstances is considered, but the location of the speech is a weak circumstance: “Employees in some cases may receive First Amendment protection for expressions made at work. Many citizens do much of their talking inside their respective workplaces, and it would not serve the goal of treating public employees like ‘any member of the general public’ to hold that all speech within the office is automatically exposed to restriction.” Id. at 420. The connection between the subject matter of the speech and the employee’s duties is only slightly more probative because “[t]he First Amendment protects some expressions related to the speaker's job.” Id. At 421.

The primary factors are the impetus for the employee's speech, the setting of the speech, the speech's audience, the general subject matter of the speech, whether the statements were made to individuals “up the chain of command,” and whether the content of the speech is “nothing more than ‘the quintessential employee beef: management has acted incompetently.’” Handy–Clay v. Memphis, 695 F.3d 531, 540-41 (6th Cir. 2012) (citation omitted). While these factors are fact intensive, the existence of protected speech presents a question of law, not of fact. Dixon v. University of Toledo, 702 F.3d 269, 274 (6th Cir. 2012).

Rodriguez v. Greater Dayton Regional Transit Auth., 2nd Dist. Montgomery No. 25583, 2013-Ohio-3463, illustrates how Garcetti is being applied. The Deputy Director of Operations had questioned reinstatement of an employee she believed had been properly discharged. Ultimately, the Deputy Director was discharged, and the articulated reasons were:

After interviewing all Supervisors in the Operations Department,
it is our conclusion that no one is aware of any change to the Cell
Phone Policy or discussion by Kevin Frazier or any other
person(s) that the decision to return Bridget Nabors to the job,
impacts RTA's ability to enforce the policy as written and
administered in the past.

It has also been determined that you have on numerous occasions
expressed openly your disagreement with management's decision,
and made it known throughout the [A]uthority of your objection
to Bridget's return. * * * It has also been confirmed that Bridget
was threatened with pulling her videos and being placed under
surveillance as described in her complaint. Your conduct in this
meeting was not in the best interest of the Authority and could
have serious consequences in the future.

Nearly all Supervisors reported that you had them view the video
of Bridget's third violation after the decision was made * * *.
The expectation of every member of management is to support
Authority decisions, regardless of their personal feelings. It is
unacceptable to express your disagreement in the manner in
which you have done over the past several weeks. Your conduct
has not been in the best interest of the Authority.

In addition to your unacceptable handling of this issue, you
further compromised yourself by expressing to others that you
were being fired for defending the Cell Phone Policy. * * * The
very reason you were placed on Administrative Leave was to
protect the integrity of the investigation.

Id. at ¶ 21. Notably, while disruptive speech will not be protected, that issue is typically addressed at the pretext and same-decision stage of First Amendment cases; whether the speech was even arguably protected in light of Garcetti is a threshold issue.

The statements the Deputy Director had made when counseling the reinstatement employee and regarding that counseling “were made in her capacity as Deputy Director of Operations of RTA and not as a private citizen.” Id. at ¶ 41. The Deputy Director admitted that she had gone too far, but argued that she was therefore no longer speaking as part of her job duties. The court rejected that argument: “Rodriguez nevertheless spoke with Nabors as Nabors's superior at RTA, not as a fellow citizen.” Later statements “were made in the course of RTA's investigation of Nabors's complaint against Rodriguez.,” also too integrated to her role as an employee to be protected. Id.

The Deputy Director had, however, also send emails while she was on vacation. They not only expressed her disagreement with the reinstatement decision but also “indicated her belief that the reinstatement created safety issues.” Id. at ¶ 42. Those “emails while on vacation and upon her return were to individuals within her chain of command and other management involved in Nabors's return to work. All were made in response to Ledford's messages notifying relevant management of Nabors's reinstatement. Rodriguez had been involved with Nabors's appeal from her termination for violating the cell phone policy, and Rodriguez's position as deputy director of operations placed Rodriguez in a supervisory position relative to Nabors upon Nabors's return to work.” Id. at ¶ 43.

The Deputy Director actually lacked “official responsibilities” regarding the reinstatement and had no right or duty to question the reinstatement decision. Id. at ¶ 44. “However, nothing in Garcetti suggests that an employee speaks in his official capacity (rather than as a private citizen) only when the statements are mandated by the employee's job description.” Id.

IV. What if I want some privacy?
A. False Light
The tort of false light is relatively new in Ohio with the Supreme Court recognizing the cause of action in Welling v. Weinfeld, 113 Ohio St.3d 464, 2007–Ohio– 2451, 866 N.E.2d 1051:
One who gives publicity to a matter concerning another that places the other
before the public in a false light is subject to liability to the other for invasion of
privacy if (a) the false light in which the other was placed would be highly
offensive to a reasonable person and (b) the actor had knowledge of or acted in
reckless disregard as to the falsity of the publicized matter and the false light in
which the other would be placed.

In Welling the plaintiffs and defendant were neighbors who were at odds. The plaintiffs owned an events center on their land, and defendants operated a farm on theirs. During the course of their squabbles one of the plaintiff’s windows was broken and the plaintiff believed defendant was at fault, so the plaintiffs created a handbill offering a reward for information leading to the arrest of the vandal who broke their window. Plaintiffs only distributed the handbill outside of the defendant’s workplace and defendant’s son’s school.

While the court did not rule on liability, it extended the coverage of Ohio’s privacy torts to include false light. The court held that false light is a natural extension of the already existing invasion of privacy tort, but allows people to control false information as well as true information that they did not want distributed. The court also defined publicity in false light as spreading the information to the public at large or making it substantially certain that the public will become aware of the information. The communication may be oral, written, or by any other means. Finally, the Court held that the tort only applies when the defendant knows that a reasonable plaintiff would be justified in the eyes of the community in feeling seriously offended and aggrieved by the publication of the statements.

In DeGarmo v. Worthington City Sch. Bd. of Edn., 10th Dist. Franklin No. 12AP– 961, 2013-Ohio-2518, appeal not allowed, 137 Ohio St.3d 1412, 2013-Ohio-5096, 998 N.E.2d 511 (table), the plaintiff was a school security advisor who one afternoon approached a minivan in the school parking lot. In the minivan she saw a young man and woman in various states of undress potentially involved in sexual activity. An investigation ensued where there was a disagreement as to exactly what the plaintiff said she saw. As a result plaintiff received a letter of direction about the incident for disclosing confidential information about a student to other staff members. After a hearing with the involved students where plaintiff stated that she did not see the students involved in any sex acts she was terminated for providing what her supervisor felt was false or misleading information during the initial investigation of the event.

Plaintiff then filed for False Light among other counts, and defendant moved for and was granted summary judgment. In upholding summary judgment the court held that there was no evidence of actual malice in that the defendants did not act with known falsity or reckless disregard for the truth because there was a reasonable disagreement as to what was said by plaintiff.

In McIntyre v. Ohio Bur. of Workers' Comp., 10th Dist. Franklin No. 12AP–1062, 2013-Ohio-2338, appeal not allowed, 136 Ohio St.3d 1512, 2013-Ohio-4657, 995 N.E.2d 1214 (table), the plaintiff regularly bought information regarding worker’s compensation claims from a BWC employee. After several of these sales occurred the employee who sold the documents to the plaintiff was investigated and eventually pled guilty to several crimes related to the sale of information. Defendant sent letters to those who were possibly affected by the sale of data and included the plaintiff’s name as someone who may have received the data. Plaintiff then sued for false light claiming that putting his name in the letters cast him in a false light to the public. The court upheld summary judgment on behalf of the defendant stating that while the information was communicated to the public; plaintiff never showed that defendant acted with actual malice when releasing the information and the statements were therefore privileged.

B. Invasion of Privacy
A related but separate tort is invasion of privacy. Its elements and application to the workplace were described in Sowards v. Norbar, Inc., 78 Ohio App. 3d 545, 554, 605 N.E.2d 468, 474 (1992):
To sustain an invasion of privacy cause, it must be established there was an
intrusion of one's private affairs to such an extent that it would cause outrage or
mental suffering, shame or humiliation to a person of ordinary sensibilities. It has
been said of the right to privacy that is not a property right, but is an incidental
personal right. Notably, the existence of a cause of action for invasion of privacy
in the employment context has been recognized by Ohio courts. (Internal citations

In Dautartas v. Abbott Labs., 10th Dist. Franklin No. 11AP–706, 2012-Ohio-1709, plaintiff had worked for defendant for several years moving her way up the corporate ladder, eventually reaching management level positions. However, her management style often left others feeling as though they were mistreated. In 2007 plaintiff was passed over for a promotion, and a supervisor made an off-handed comment about her age and future management positions. After this plaintiff’s work began to suffer and she was place on a Coaching and Counseling Plan (CCP). Plaintiff’s supervisor attempted to set up a meeting with her about the CCP, and he did so on the company’s computer system; however, due to his error he made the CCP meeting public to all of defendant’s employees. Plaintiff then sued for invasion of privacy under a publicity theory.

The court rejected her claims holding that plaintiff failed in proving that the information was about her personal life. The court held that the information on the CCP only concerned her professional life, therefore failing the second prong of publicity “disclosure of facts concerning the individual's private life.”

In Turner v. Shahed Ents., 10th Dist. Franklin No. 10AP–892, 2011-Ohio-4654, when plaintiff applied to work for defendant she disclosed that she had a past criminal history of drug-related offenses. As a precondition to employment plaintiff had to prove that she was drug-free, which she did. Several weeks after she accepted the job $50 went missing from a safe, and the manager summoned all of the employees to inquire about the missing money. When the manager asked plaintiff where the money was she stated that she did not take it and offered to allow the manager to strip search her in a bathroom, which the manager did and did not find the money. The money was later found in an area where the plaintiff worked, and she was terminated the next day. Plaintiff filed suit alleging invasion of privacy based on the strip search.

The lower court granted summary judgment for the defendant, and this court affirmed, holding that, while a strip search by a manger may have been actionable, because the plaintiff volunteered for the strip search she lost all possible expectations of privacy during the search.

C. Defamation
The basic elements of defamation were described in Matalka v. Lagemann, 21 Ohio App. 3d 134, 136, 486 N.E.2d 1220, 1222 (1985) (internal citations omitted):  “Defamation is a false publication causing injury to a person's reputation, or exposing him to public hatred, contempt, ridicule, shame or disgrace, or affecting him adversely in his trade or business.”

In Lucas v. Perciak, 8th Dist. Cuyahoga No. 96962, 2012-Ohio-88, appeal not allowed, 131 Ohio St. 3d 1553, 2012-Ohio-2263, 967 N.E.2d 764 (table), plaintiff worked as a nurse, and defendant Mayor of Strongsville sent a memo to the hospital that plaintiff contended was defamatory and led to her termination from the hospital. Several days before the memo was sent plaintiff picked up her niece from the police department and stated that she did not want to bring her niece back to the girl’s mother because she did not believe it was a safe place. When the police arrived to take the girl to her mother’s home plaintiff told the police that if they were ever patients at the hospital she would refuse to care for them. The officers claimed that plaintiff made several other remarks threatening them if they were ever at the hospital. The statements of the officers were given to the mayor who sent them along to the hospital. and plaintiff was terminated. She then sued for defamation among other counts related to the termination.

The lower court granted defendant’s motion for summary judgment, and plaintiff appealed. Plaintiff claimed that she never uttered the words attributed to her in the memos therefore making the memos defamatory. In rejecting this argument the court held that a plaintiff’s self-severing testimony that the statements were not uttered without more is not enough to defeat a well-supported summary judgment motion. Moreover, the court held that the defendants in sending the memo did not act with disregard of the truth and therefore the claim must fail.

In Cittadini v. Sw. Gen. Health Sys., 8th Dist. Cuyahoga No. 96254, 2011-Ohio- 6464, plaintiff learned that her supervisor was having money issues and offered to make her a $1,000 loan which her supervisor accepted. A year later the company decided to do a companywide wave of layoffs. After computing personnel information it was determined that plaintiff was in a group of employees who handled the least amount of calls. Plaintiff was initially laid off, but shortly thereafter was recalled back to work. Upon returning to work one afternoon plaintiff showed some co-workers a knife that her husband had given to her. A co-worker described the knife as a switch blade, and defendant investigated the claim and then terminated plaintiff. Plaintiff then sued for defamation among other counts.

Defendant filed for summary judgment, and the trial court granted defendant’s motion. Plaintiff claimed that she was defamed when her co-workers said she had a switch blade knife at her workstation. The court held that the co-workers had a qualified privilege that required a showing of actual malice for plaintiff to overcome because they were discussing a matter in which they had a protected and common interest. Further, the court held that plaintiff was unable to show any malice in the co-workers statements and therefore her claim must fail as the co-workers statements were privileged.

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