COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71165 MARILYN HORMANN, : : Plaintiff-Appellee/ : Cross-Appellant : JOURNAL ENTRY : and vs. : OPINION : CLEVELAND BOARD OF EDUCATION, : ET AL., : : Defendants-Appellants/ : Cross-Appellees : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 8, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 256355 JUDGMENT : AFFIRMED IN PART, REVERSED : IN PART, AND VACATED IN : PART. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee/ Denise J. Knecht cross-appellant: Daniel J. Nealon DENISE J. KNECHT & ASSOCIATES CO.,L.P.A. 75 Public Square, Suite 1300 Cleveland, Ohio 44113 -2- or defendant-appellant/ Jon M. Dileno cross-appellee, Cleveland DUVIN, CAHN & HUTTON Board of Education: Erieview Tower, 20th Floor 1301 East Ninth Street Cleveland, Ohio 44114 Wanda Rembert Arnold Legal Counsel Cleveland Board of Education 1380 East Sixth Street, No. 152 Cleveland, Ohio 44114 George S. Crisci ULMER & BERNE Bond Court Building, Suite 900 1300 East Ninth Street Cleveland, Ohio 44114 For defendant-appellant/ Dwight E. Davis cross-appellee, Elaine DAVIS, WILLIAMS & COMPANY Davis: 1328 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -3- NAHRA, P.J.: Appellants, the Cleveland Board of Education (hereinafter the Board ) and Elaine Davis, appeal the trial court's denial of their motions for a directed verdict and for judgment notwithstanding the verdict following a jury verdict in favor of appellee, Marilyn Hormann. Appellee, a guidance counselor employed by the Board, brought this lawsuit against Elaine Davis, the principal of Nathan Hale Intermediate School (hereinafter Nathan Hale ), and the Board alleging claims for relief based upon defamation, racial discrimination, workers' compensation retaliation, and whistle blower retaliation. Appellee's claims for race discrimination and defamation were tried to the jury; her claims of retaliation were tried to the court. The jury found in favor of appellee on her defamation claim, in favor of appellants on the claim of racial discrimination, and awarded appellee $100,000 in compensatory damages, $30,000 in punitive damages. The court later awarded appellee attorney's fees, costs, and prejudgment interest on the jury's verdict. The court found in favor of appellants on appellees' retaliation claims. Appellee began working for the Board in 1962, working at Nathan Hale from 1984 until 1993. Davis became the principal at Nathan Hale in 1987. By 1993, Davis initiated a disciplinary procedure outlined in appellee's collective bargaining agreement -4- (hereinafter the CBA ) based upon her dissatisfaction with appellee's job performance and attendance. The problems prompting Davis to initiate disciplinary procedures against appellee began prior to the time that Davis began as principal. From the 1985-86 school year, appellee filed numerous injury reports and workers' compensation claims resulting from accidents and student assaults within the school. Appellee was absent from work for 242 and / days from 1986 through 1993 with 78 and / days being paid absences and 164 days being approved assault leave. In response to appellee's absences and job performance, Davis initiated the disciplinary procedure against appellee in February, 1993. In so doing, Davis prepared two written memoranda in February and March 1993. The February 1993 memorandum criticized appellee on aspects of her job performance and tardiness in excess of 15 days for the then current school year. It also noted Davis' concern that appellee had deliberately attempted to incite white parents concerning a racial incident at the school by contacting the parents after the incident, instead of first informing the administration of the incident. The March 1993 memorandum written by Davis addressed to Dr. James Coleman, Assistant Superintendent Intermediate Schools, reads in pertinent part: It was not long before I saw problems, devious acts, patterns of allegedassaults by students, patterns of on- going workers compensation claims and chronic absenteeism. *** -5- My major concern was lack of continuity in the guidance program. According to the records in the workmans' (sic) compensation office and Mr (sic) Robert Finan. (sic) Marilyn Hormann filed claims during the following school year: (sic) *April 23, 1986 *May 22, 1986 *November 21, 1988 *September 27, 1990 These files are available for review. With each claim Marilyn Hormann was absent for a period of time thus it was necessary to bring in substitute counselors for several weeks to months. *** (Emphasis in original.) Davis concluded this memo by asking for appellee's removal from Nathan Hale as well as from her position as guidance counselor. In conjunction with these memoranda, three disciplinary meetings were scheduled in February and March 1993. At this time, appellee wrote a letter to the Superintendent of the Cleveland City Schools accusing Davis of making threats of violence against her. The February 8, 1993 letter concluded, I fear for my safety and well-being, and for the safety and well-being of others. I need your help today. The disciplinary meetings did not include discussion of appellee's absences or her job performance; rather, peripheral issues, such as union representation for appellee, Davis' alleged threats, and appellee's letter to the superintendent, were discussed. In the spring of 1993, appellee was moved to the Lakeside administration building to finish the school year. Appellee filed -6- a grievance over her removal as guidance counselor at Nathan Hale. The grievance resulted in a determination by the Superintendent of the Cleveland City Schools that appellee had not been disciplined by her transfer, but that the move was necessitated by appellee's fears and concerns for her own safety. In the 1993-94 school year, appellee was assigned as a guidance counselor to the furthest possible school from her home. She brought an action to enjoin the Board from transferring her there and was assigned to a more conveniently located school. I. Appellants' first assignment of error reads: I. THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANTS' MOTION FOR DIRECTIVE (SIC) VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT IN FINDING THAT PLAINTIFF'S DEFAMATION CLAIM WAS NOT PREEMPTED BY THE EXISTENCE OF THE APPLICABLE COLLECTIVE BARGAINING AGREEMENT. Appellants argue that the court erred by allowing appellee to bring a claim of defamation against them where the defamatory remarks about appellee arose during the disciplinary process because the court was without jurisdiction pursuant to R.C. 4117.10. We agree. In Franklin Cty. Law Enforcement Assoc. v. Fraternal Order of Police, Capital City Lodge No. 9 (1991), 59 Ohio St.3d 167, 572 N.E.2d 87, paragraph 2 of the syllabus reads: If a party asserts rights that are independent of R.C. Chapter 4117, the party's complaint may properly be heard in common pleas court. However, if a party asserts claims that arise from or depend on the collective bargaining rights created by R.C. Chapter 4117, the remedies provided in that chapter are exclusive. -7- In State ex rel. Cleveland City School District Bd. of Educ. v. Pokorny(1995), 105 Ohio App.3d 108, 110, 663 N.E.2d 719, 721, this court, citing Franklin Cty. Law Enforcement Assoc., supra, stated that It must also be noted that any claim which is independent of R.C. Chapter 4117, such as a breach of contract or enforcement, still falls solely within the jurisdiction of SERB [State Employee Relations Board] if the asserted claim arises from or is dependent on the collective bargaining rights created by R.C. Chapter 4117. (Emphasis added.) See, also, Cleveland Police Patrolmen's Assn. v. White (1996), 109 Ohio App.3d 329, 672 N.E.2d 195; Tucker v. Cincinnati Bell Tel. Co. (1986), 30 Ohio App.3d 111, 506 N.E.2d 944. In this case, the alleged defamatory remarks were contained within memoranda written for the purpose of initiating the disciplinary process as set forth in the CBA. The statements, although found by a jury to be defamatory, arose from memoranda generated in accordance with the CBA. Accordingly, the trial court was without jurisdiction to entertain appellee's claims of defamation as they are preempted by R.C. 4117.10. Moreover, the CBA contains a remedy in the event derogatory or untruthful allegations appear within an employee's personnel file. For these reasons, we hold that the trial court was without jurisdiction to determine appellee's claim of defamation against appellants. Appellants' first assignment of error is well taken. We reverse the judgment of the trial court denying appellants' motion for judgment notwithstanding the verdict, grant appellants' -8- motion, vacate the jury's verdict on appellee's claim of defamation, and enter judgment in favor of appellants. As the trial court was without jurisdiction to enter a verdict on appellee's defamation claim, we next address appellants' eighth and ninth assignments of error, which read: VIII. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR PREJUDGMENT INTEREST. IX. THE TRIAL COURT ERRED IN NOT REDUCING THE AMOUNT OF PLAINTIFF'S ATTORNEY FEES. Because the court could not enter a verdict in favor of appellee on her claim of defamation, it could neither award prejudgment interest on the verdict nor award attorney's fees in favor of appellee. Accordingly, we sustain appellants' eighth and ninth assignments of error and vacate the trial court's award of prejudgment interest and attorney's fees. Appellants' remaining assignments of error, numbered two through seven and listed in the appendix, are rendered moot by our resolution of this case and need not be specifically addressed. App.R. 12(A)(1)(c). II. Appellee's assignment of error in her cross-appeal reads: I. THE LOWER COURT ERRED IN DISMISSING HORMANN'S WHISTLE BLOWER AND WORKERS COMPENSATION RETALIATION CLAIMS AS FOUND IN V. V, P. 907 OF THE TRIAL TRANSCRIPT AND RECORDED ON THE DOCKET BY ORDER DATED JUNE 14, 1996. Appellee tried her claims of retaliation under R.C. 4113.52, the whistle blower claim, and under R.C. 4123.90, the workers compensation retaliation claim, to the trial court. Upon evidence presented, the court dismissed appellee's retaliation claims. -9- R.C. 4123.90 reads in part: No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified at any proceedings under the workers' compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer. Any such employee may file an action in the common pleas court of the county of such employment in which the relief which may be granted shall be limited to reinstatement with back pay, if the action is based upon discharge, or an award for wages lost if based upon demotion, reassignment or punitive action taken, offset by earnings subsequent to discharge, demotion, reassignment, or punitive action taken, and payments received pursuant to section 4123.56 and Chapter 4141 of the Revised Code plus reasonable attorney's fees. *** R.C. 4123.90 clearly contemplates that a claim of retaliation brought by an employee be brought only where there is a direct monetary loss to the employee. Appellee did not present evidence that she was monetarily injured by appellants; she merely argues that the disciplinary process she was subjected to was based in part on Davis' belief that appellee manipulated the attendance policy through workers' compensation claims in contravention of R.C. 4123.90. In this case, no relief under R.C. 4123.90 can be awarded as appellee did not suffer any monetary loss. Accordingly, appellee could not maintain an action under R.C. 4123.90 and the court properly dismissed her claim. See, e.g., Oswald v. Fresh Mark/Sugardale, Inc. (Nov. 9. 1991), Stark App. No. CA-8906, unreported. -10- R.C. 4113.52 reads in pertinent part: (A)(1)(a) If an employee becomes aware in the course of his employment of a violation of any state or federal statute or any ordinance or regulation of a political subdivision that his employer has authority to correct, and the employee reasonably believes that the violation either is a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety or is a felony, the employee orally shall notify his supervisor or other responsible officer of his employer of the violation and subsequently shall file with that supervisor or officer a written report that provides sufficient detail to identify and describe the violation. *** (c) If an employee becomes aware in the course of his employment of a violation by a fellow employee of any state or federal statute, any ordinance or regulation of a political subdivision, or any work rule or company policy of his employer and the employee reasonably believes that the violation either is a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety or is a felony, the employee shall orally notify his supervisor or other responsible officer of his employer of the violation and subsequently shall file with that supervisor or officer a written report that provides sufficient detail to identify and describe the violation. Although appellee confronted Davis about changes made in reports prepared by appellee and by Davis, she has not identified any incident that she reported that either is a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety or is a felony. R.C. 4113.52(A)(1)(a),(c). Because of this, the court properly dismissed appellee's claim made pursuant to R.C. 4113.52. For these reasons we overrule appellee's sole assignment of error. -11- Judgment affirmed in part, reversed in part, and vacated in part. -12- This cause is affirmed in part, reversed in part, and vacated in part for proceedings consistent with this opinion. Costs to be divided equally between plaintiff-appellee/cross- appellant and defendants-appellants/cross-appellees. It is ordered that a special mandate be sent to said 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. JOSEPH J. NAHRA PRESIDING JUDGE O'DONNELL, J., and TIMOTHY E. McMONAGLE, J., CONCUR. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). APPENDIX Appellants' second through seventh assignments of error read: II. THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANTS' MOTION FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT ON PLAINTIFF'S DEFAMATION CLAIM, BECAUSE PLAINTIFF FAILED TO OVERCOME THE QUALIFIED PRIVILEGE AND OTHERWISE DID NOT ESTABLISH ANY INJURY TO HER TRADE OR PROFESSION OR ESTABLISH THAT SHE SUFFERED FROM RIDICULE, CONTEMPT, SHAME, DISGRACE OR HATRED. III. THE TRIAL COURT ERRED IN SUBMITTING THE ISSUE OF PUNITIVE DAMAGES AND ATTORNEYS' FEES TO THE JURY. IV. THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANTS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON THE JURY'S AWARD OF PUNITIVE DAMAGES AND ATTORNEY'S FEE'S. V. THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTION FOR NEW TRIAL DUE TO THE COURT'S IMPROPER ADMISSION BEFORE THE JURY OF EVIDENCE IN SUPPORT OF PLAINTIFF'S WHISTLE BLOWER CLAIMS. VI. THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTION FOR NEW TRIAL DUE TO THE COURT'S IMPROPER ADMISSION OF PLAINTIFF'S WORK LOGS. VII. THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTION .