COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60425 NORMAN J. GONSALVES : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CLEVELAND ELECTRIC : ILLUMINATING CO. : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 30, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 186972 JUDGMENT: Affirmed DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: BRUCE B. ELFVIN, ESQ. HELEN KRYSHTALOWYCH, ESQ. ELFVIN & BESSER DANIEL A. JAFFE, ESQ. 2924 East Overlook SQUIRE, SANDERS & DEMPSEY Cleveland, Ohio 44118-2434 1800 Huntington Building Cleveland, Ohio 44115 BARI E. GOGGINS, ESQ. P.O. Box 5000 55 Public Square Cleveland, Ohio 44101 - 1 - DYKE, J.: Appellant, Norman Gonsalves, first brought suit against the appellee, Cleveland Electric Illuminating, Co. ("C.E.I.") in Federal Court alleging discrimination under Title VII as well as the torts of false imprisonment, defamation, invasion of privacy and interference with advantageous economic relation. The Federal Court dismissed the discrimination claim and also dismissed two of the state law tort actions because the court found that they were preempted by the National Labor Relations Act. The two remaining tort claims were dismissed without prejudice as the Federal Court lacked pendent jurisdiction to hear them. Appellant then filed the two remaining claims, false imprisonment and defamation, with the Court of Common Pleas in March of 1990. Appellee moved for summary judgment which was granted in its favor on August 2, 1990. Appellant filed a timely notice of appeal with this court. Appellant was a pipefitter working at C.E.I.'s Perry Nuclear Power Plant. He was employed by Pullman Power which was a subcontractor for the appellee. C.E.I. maintained some authority over appellant in that it imposed a set of work rules pertaining to anyone who had access to the plant site. If a violation of these rules took place, the appellee's security personnel had the authority to remove the violator's ability to gain access to the plant. - 2 - In fact, according to these work rules, the security personnel at Perry Nuclear Power Plant had a great deal of authority over those persons employed at the plant. The work rules are contained in the Employee Handbook (Exhibit 8 Attachments to Appellee's Appellate Brief). The Employee Handbook defines a Category 1 offense as "being the most severe" and a violation "will result in the employee being denied access to the jobsite for the duration of the project." (p. 3). The two offenses in Category 1 which are relevant to this case are: Under apparent influence of intoxicants or illegal or unprescribed drugs or use or possession of same. * * * Refusal to submit to lunchbox or vehicle inspection or other official security procedures prescribed by [C.E.I.]. (p. 4). Norman Gonsalves and two other employees at the Perry plant were seen exiting quickly from an area in the plant by a security guard, according to an Incident Report filed on March 14, 1986. As the guard approached the place where appellant and the two other men had been standing he noticed the smell of marijuana. C.E.I. required the appellant to take a drug screening test the following day. The results were negative, indicating that appellant had not been smoking marijuana. Nevertheless, the security personnel put appellant under surveillance as a suspected drug user. A guard sat in his own, unmarked car one evening, as part of the surveillance, and watched appellant enter - 3 - his car after his shift. On March 27, 1986, shortly after identifying appellant's car, an allegedly random search of the parking lot with a drug detecting dog identified appellant's car as containing marijuana. Appellant was at the time eating his lunch. Two security personnel escorted the appellant to his car where the guard with the dog was waiting. The guards asked appellant for his permission to search his car, which he granted. Appellant stated in his deposition testimony that he was aware of the work rules and knew that he could be escorted off the jobsite without the privilege of returning if he did not give his permission for the search. The guards found a small matchbox under the passenger seat, amongst a lot of paper and debris. The matchbox contained a leafy substance. Appellant accompanied the guards to a testing area where the substance was tested and proved to be marijuana. At that point appellant was escorted off of the jobsite and his access badge which allowed access to the premises was taken from him. Appellant makes one assignment of error. I THE COURT BELOW ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WHEN GENUINE ISSUES OF MATERIAL FACT WERE PRESENTED BY THE EVIDENCE OF RECORD Appellant claims that disputes exist as to material facts with respect to both the false imprisonment and the defamation claims. As to false imprisonment appellant claims that a factual issue is presented as to whether or not the confinement was - 4 - against his will and also whether or not the guards had a lawful justification. Summary judgment is appropriate under Civ. R. 56(C) where, on the materials properly submitted to the court: [T]here is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence ... that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. Appellant fails to allege specific facts which are actually in dispute to render the grant of summary judgment inappropriate. There does not appear from the record to be any genuine issues of material fact in dispute. Whether or not appellant was confined unlawfully against his will is a matter of law, not fact. The Ohio Supreme Court has set forth the requisite elements of false imprisonment in Feliciano v. Kreiger (1977), 50 Ohio St. 2d 69, 71: [T]o confine one intentionally without lawful privilege and against his consent within a limited area for any appreciable time, however short. To prove the element of confinement this court has held that one must show force or coercion, not simply a submission to the verbal direction of another. Honesty v. Leader Discount Drug - 5 - Stores (October 1, 1987), Cuyahoga Co. App. No. 52798, unreported. In this case the facts as presented by both appellant and appellee, show that appellant has failed to prove that he was confined. No force or threat of force is alleged. Although appellant does make reference to the fact that the guards were armed, he does not claim that he feared for his safety lest he comply with their request to accompany them to the parking lot. Coercion is not present in this case, either. Appellant would have been in violation of a Category 1 offense if he had not submitted to the search of his car and as a penalty could have essentially lost his job as a pipefitter at the plant. However, the fact that he faced the option of complying with the security personnel or losing his access to the plant, does not make this situation coercive. The court of appeals for Hamilton County found that an employee had a meaningful choice when faced with the option of losing her job or submitting to a polygraph test. Walden v. General Mills Restaurant Group (1986), 31 Ohio App. 3d 11. Because no force was alleged and appellant's decision to accompany the guards and consent to the search of his car was not coerced, as a matter of law, appellant was not falsely imprisoned. The trial court was correct in granting appellee's motion for summary judgment on the false imprisonment claim. - 6 - On the claim for defamation, appellant asserts that a dispute exists as to the issue of whether C.E.I.'s assertion of the defense that the allegedly defamatory statement was the truth is controverted by appellant's testimony and evidence. Appellant also argues that C.E.I.'s communications to appellant's union officials were not protected by qualified privilege. Two communications are alleged to be defamatory. The first is the Incident Report filed by the guard who thought he smelled marijuana in the area where appellant had just previously been seen standing and the second is a notice sent to appellant's union officials notifying them of appellant's loss of access to the plant and why. Again, appellant has failed to allege any specific facts which are in dispute as to the defamation claim. His assertions are legal questions which would not render summary judgment inappropriate if the trial court found that appellee was entitled to judgment as a matter of law and no two reasonable minds could come to differing conclusions. Qualified privilege covers both communications about which appellant complains. The Ohio Supreme Court has held qualified privilege to be "recognized in many cases where the publisher and the recipient have a common interest, and the communication is of a kind reasonably calculated to protect or further it." Hahn v. Kotten (1975), 43 Ohio St. 2d 237, 244. - 7 - The Incident Report and the notification of appellant's union officials were communications between two parties sharing a common interest and the communications were necessary to further that interest. In the case of the Incident Report, the publisher was a security guard and the recipient was his employer. Their common interest is in maintaining an adequate level of security at the nuclear plant. The security guard had been hired to fulfill that function and one of his duties is to uphold the rules disallowing the use or possession of illegal drugs. Reporting his suspicion of the appellant and the details of his encounter on March 14 was in furtherance of maintaining the plant's safety and security. Therefore, a qualified privilege attached to that communication. As to the notice to the union officials, the publisher was C.E.I. and it shares a common interest with the union in the persons placed in employment positions at the plant. It is the union's responsibility to send its members to fill openings as needed at the facility. It is in furtherance of that responsibility performed for the benefit of C.E.I., the publisher of the communication, that notice was sent of appellant's violation of a Category 1 offense and subsequent loss of access to the plant. Qualified privilege thus attached to the notice to the union, too. The function of a qualified privilege is to make "a showing of falsity and actual malice essential to the right of recovery." Hahn v. Kotten at 244. Appellant did not present any evidence to - 8 - prove either the falsity of the communications nor any actual malice on the part of the appellee in publishing the communications. The guard claimed in his Incident Report that he smelled marijuana. The falsity of that is not shown by the appellant's claim that he was not smoking any marijuana nor by appellant's negative drug screening results. The guard could have smelled marijuana regardless of the truth of appellant's claim. The guard's sense of smell is subjective and is not a factual issue which appellant can put into dispute to render the grant of summary judgment inappropriate. Nor can appellant put into dispute the truth of the communication to his union. Appellant was found in violation of the rule prohibiting possession of illegal drugs on the jobsite. He did lose the privilege of access to the plant. These are the two primary points made in C.E.I.'s brief notice to the union. Appellee also requested that appellant not be appointed to any more employers at the plant for the duration of the project. Appellant did not attempt to prove that this was false information. Instead, appellant tried to argue that he and appellee were not in an employee/employer relationship. However, this is irrelevant to the application of the law on qualified privilege. Because appellant did not allege any specific facts as to which there exists a dispute, and could not prove that appellee was not entitled to judgment as a matter of law on both the false - 9 - imprisonment and defamation claims, his assignment of error is overruled. The trial court's grant of appellee's motion for summary judgment is affirmed. - 10 - It is ordered that appellee recover of appellant its 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 Common Pleas Court 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. ANN MCMANAMON, J., AND PATTON, J., CONCUR PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .