COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71721 DALE MATTHIAS, : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : WENDY'S OF PEARL, INC., : ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 18, 1997 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 296059 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Thomas G. Lobe 1995 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1407 For defendants-appellees: Anthony J. Damelio Michael S. Owendoff ZIEGLER, METZGER & MILLER 2020 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1441 2 NAHRA, J.: Dale Matthias, appellant, appeals the grant of summary judgment to Wendy's of Pearl, Inc., Wendy's International, Inc., and Gary Master, appellees. Appellant alleges that appellees committed the torts of abuse of process, malicious prosecution, intentional or negligent infliction of emotional distress, and defamation. Appellant was employed as a manager at a Wendy's restaurant owned by Gary Master. In August, 1993, over $5,000 in cash to be deposited by appellant at the restaurant's bank was missing. Appellant stated that he placed the money in the night depository drop at the bank. Master filed a police report regarding the missing money, an investigation ensued, and appellant was terminated from his position. In November, 1993, Master stated to the Ohio Bureau of Unemployment Services that appellant was terminated for failure to follow cash control procedures, that three deposits which appellant was to deposit in the bank never made it to the bank, and that appellant was still under investigation. Additionally, appellant claims that his friends and previous co-workers were told that he was terminated for stealing the missing deposit money. Appellant was indicted for the theft of the money. Eventually, the charges against him were dismissed. In granting summary judgment, the court made the following journal entry: Defendant's motion for summary judgment (filed 7/30/96) is granted. 3 (1) Plaintiff has failed to present any evidence of probable cause in malicious prosecution claim and a grand jury indictment in a criminal theft case creates a rebuttable presumption that probable cause was present; (2) Plaintiff has failed to establish that defendants actually used process in the abuse of process cause of action when prosecutor filed complaint and defendant Master was a fact witness; (3) Filing a police report and firing plaintiff was not such outrageous conduct to constitute utterly intolerable ; (4) Ohio doesn't recognize a separate tort for negligent infliction of emotional distress; and (5) Defendant Master's statements to an employee were privileged and [there was] no showing of actual malice. Appellant's sole assignment of error reads: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY GRANTING EACH APPELLEE'S MOTION FOR SUMMARY JUDGMENT AS GENUINE ISSUES OF MATERIAL FACT EXIST, NO APPELLEE IS ENTITLED TO JUDGMENT AS A MATTER OF LAW, AND REASONABLE MINDS CANNOT COME TO BUT ONE CONCLUSION WHICH IS ADVERSE TO THE APPELLANT. A grant of summary judgment is to be reviewed de novo. Brown v. Scioto Bd. of Comm'rs. (1993), 87 Ohio App.3d 704, 711. Pursuant to Civ.R. 56, a court may grant a motion for summary judgment when it finds that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. I. 4 Appellant has presented four issues for review, arguing that summary judgment is precluded as to each count of his complaint. We will address each separately. In Count I of appellant's complaint, appellant alleges that appellees committed malicious prosecution. In Trussell v. General Motors Corp. (1990), 53 Ohio St.3d 142, the syllabus reads: The elements of the tort of malicious criminal prosecution are (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused. In their motion for summary judgment, appellees presented evidence to the court that appellant was indicted for theft in connection with the missing money. The return of an indictment by the grand jury is evidence of probable cause; when an indictment has been returned by the grand jury, the plaintiff has the burden of producing substantial evidence to establish lack of probable cause. Deoma v. Shaker Heights (1990), 68 Ohio App.3d 72, 77, jurisdictional motion overruled, 56 Ohio St.3d 704. To rebut this evidence, a plaintiff need present evidence that the indictment resulted from perjured testimony or that the grand jury proceedings were otherwise significantly irregular. Id. at 77. Appellant offers to rebut appellees' showing of probable cause by asserting facts that cast doubt upon appellant's guilt such as appellants' cooperation with the investigation, his declaration of innocence, and the subsequent dismissal of the criminal case against him. However, these facts do not negate the existence of probable cause at the time of appellant's indictment where he 5 admitted to sole control of the missing money, he had financial difficulties at the time the money was missing, and the bank's security procedures in accepting night deposits were followed. Accordingly, the trial court properly granted summary judgment for appellees as to appellant's claim of malicious prosecution. II. Appellant asserts that the court erred in granting summary judgment to appellees on Count II of his complaint alleging abuse of process. In order to maintain a claim for abuse of process, a plaintiff must show `(1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the wrongful use of process.' Robb v. Chagrin Lagoons Yacht Club, Inc. (1996), 75 Ohio St.3d 264, 270 (quoting Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A. (1994), 68 Ohio St.3d 294, 298.) Appellees claim that they did not use or abuse any process against appellant and they therefore are entitled to judgment as a matter of law. Appellees have presented evidence that the Cleveland police department investigated the disappearance of appellees' bank deposits and that the Cuyahoga County Prosecutor secured an indictment of appellant through the grand jury. In Clermont Environmental Reclamation Co. v. Hancock (1984), 16 Ohio App.3d 9, the Clermont County Appellate Court stated that in order [t]o make a case for abuse of process a claimant must 6 show that one used process with an `ulterior motive,...' and that [t]here must also be shown a further act in the use of process not proper in the regular conduct of the proceeding. 16 Ohio App.3d at 11. Appellant has not shown that appellees acted in a manner inconsistent or abusive of the legal process where appellees reported the missing money to the police and assisted in an investigation. Appellant argues that because a supplemental police report was filed, appellees acted with an ulterior motive to abuse the criminal process. However, the supplemental police report does not evidence an ulterior motive on the part of appellees, especially in light of the fact that the first police report recommended further action by the detective bureau and the supplemental report details that activity. Appellant argues that because Master told detectives that he was in sole control of the missing money and that Master did not offer any other suspect for consideration by the police, Master, therefore acted tortiously. This argument is unpersuasive. The supplemental police report indicates that Master's statements to the police were that appellant was in charge of depositing the missing money in the bank, that appellant admitted he had the money and claimed to have made the deposits, and that the deposits were not recorded by the bank. These statements, not contradicted by appellant, do not evidence an ulterior motive. We find nothing in the police reports evidencing an abuse of the criminal process by appellees where appellees gave statements of fact to the police department in connection with an 7 investigation. Appellant has not demonstrated that the complaints made to the police were made to abuse the criminal process, that the decision to indict appellant was made by anyone outside of the prosecutor's office, or that the grand jury proceedings were not proper. Accordingly, the trial court properly granted summary judgment to appellees on appellant's claim of abuse of process. 8 III. In Count III of his complaint, appellant alleges that appellees intentionally, recklessly, and/or negligently acted in an extreme and outrageous manner so as to cause serious emotional distress to appellant. Ohio recognizes the tort of intentional infliction of emotional distress; however, it does not recognize actions for negligent infliction of emotional distress in the context of employment or defamation cases. Tschantz v. Ferguson (1994) 97 Ohio App.3d 693, 714. Accordingly, appellant may only bring an action for intentional infliction of emotional distress. In order to sustain an action for intentional infliction of emotional distress appellant must show there are genuine issues of material fact in the following elements: *** 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 actors conduct was so extreme and outrageous as go `beyond all possible bounds of decency' and was such that it can be considered as utterly intolerable in a civilized community,' Restatement of Torts 2d (1965) 783, Section 46, comment d; 3) that the actor's actions were the proximate cause of plaintiff's psychic injury; and 4) that the mental anguish suffered by plaintiff is serious and of a nature that no reasonable man could be expected to endure it,' Restatement of Torts 2d 77, Section 46, comment j. *** Tschantz, 97 Ohio App.3d at 702-03 (quoting Pyle v. Pyle (1983), 11 Ohio App.3d 31.); see, also, Yeager v. Local Union 20, Teamsters, Chauffers, Warehousemen & Helpers of America (1983), 6 Ohio St.3d 369. Appellant argues that appellees' actions may be found by a trier of fact to be outrageous conduct which would cause serious 9 emotional distress. In this case, appellees initiated a police investigation, terminated appellant, and cooperated with police in the investigation and prosecution of appellant. These acts are not utterly intolerable in society so as to rise to the level of outrageous conduct necessary to support a claim of intentional infliction of emotional distress. These acts are ordinary and reasonable; the reporting of crime and subsequent cooperation with police should not be considered outrageous as claimed by appellant, but rather should be commended. Accordingly, we find the trial court properly granted summary judgment in favor of appellees on appellant's claim of intentional infliction of emotional distress as their conduct did not, as a matter of law, rise to the level of outrageous conduct. IV. Appellant alleges in Count IV of his complaint that appellees defamed him by stating to his friends and coworkers that he was fired for stealing money from the restaurant. Additionally, the record reflects that appellees made statements regarding appellant's termination to both the police in the course of their investigation and to the Ohio Bureau of Employment Services. An action for defamation requires proof that 1) a false statement was made, 2) which defamed the plaintiff, 3) that the statement was published, 4) that plaintiff was injured thereby, and 5) there was fault on the part of the defendant. Rogers v. Buckel (1992), 83 Ohio App.3d 653, 659. 10 A defendant may assert a defense of qualified privilege in a defamation action. See Rinehart v. Maiorano (1991), 76 Ohio App.3d 413, 419-20. The Supreme Court of Ohio stated: A qualified or conditionally privileged communication is one 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 circumstancesfairly warranted by the occasion and duty, right or interest. Hahn v. Kotten (1975), 43 Ohio St.2d 237, 244. The determination of whether a qualified privilege exists is a matter for the court. See, A & B-Abell Elevator Co. v. Columbus/Central Ohio Bldg. & Constr. Trades Council (1995), 73 Ohio St.3d 1, 7-8. Appellees assert that 1) appellant has presented no evidence of defamatory statements made outside of their qualified privilege as appellant's previous employer and 2) that a privilege exists in responding to government requests for information from both the police investigation and the Ohio Bureau of Employment Services. Appellant alleges that defamatory statements were made to both his friends and previous coworkers; however, he has only produced evidence that statements regarding his termination were made to appellees' employee and to government agencies. In this matter, the trial court determined that the alleged defamatory statement that appellant was fired for theft was privileged as it was made to appellees' employee. Statements made by employers to their employees regarding the activities of another employee are within the qualified privilege. See, e.g., Evely v. Carlon Co. (1983), 4 Ohio St.3d 163, 165-66; Rinehart, 76 Ohio 11 App.3d at 421. We find that appellees were privileged to discuss the circumstances of appellant's termination with their current employee. Once it is determined that statements are made within a qualified privilege, a plaintiff must show that the statements were made with actual malice. Evely, 4 Ohio St.3d at 166. Appellant has made no such showing. We note that the statements made to the police and the Ohio Bureau of Employment Services were privileged as appellant has not made any showing that the statements were made with reckless disregard for the truth. See, e.g., A & B-Abell Elevator Co., 73 Ohio St.3d at 8-9 (discussing public interest privilege); see, also, Atkinson v. Stop-N-Go Foods, Inc. (1992), 83 Ohio App.3d 132, 136. Accordingly, the trial court did not err by granting appellees' motion for summary judgment as to appellant's claim of defamation. Appellant's sole assignment of error is overruled and the trial court's grant of summary judgment to appellees is affirmed. 12 It is ordered that appellees recover of appellant their 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. MATIA, DAVID T., P.J., and O'DONNELL, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .