[Cite as Earp v. Kent State Univ., 2010-Ohio-5904.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

PAUL W. EARP 

 Plaintiff 

 v. 

KENT STATE UNIVERSITY 

 Defendant 

Case No. 2009-04891 

Judge Clark B. Weaver Sr. 

Magistrate Lewis F. Pettigrew 

MAGISTRATE DECISION

{¶ 1} Pursuant to Civ.R. 53, Magistrate Lewis F. Pettigrew was appointed to 

conduct all proceedings necessary for decision in this matter. 

{¶ 2} Plaintiff brought this action alleging defamation and breach of contract, 

and seeking declaratory relief. The issues of liability and damages were bifurcated and 

the case proceeded to trial on the issue of liability. 

{¶ 3} In 1995, plaintiff, Paul Earp, was charged with two counts of sexual 

assault on a child, a felony of the second degree under Texas law.1

 According to 

plaintiff, both charges stem from his romantic involvement with a 16-year-old female. At 

that time, plaintiff was approximately 34 years of age. 

{¶ 4} According to the evidence, plaintiff entered a plea of “no contest” in two 

related cases, whereupon he was sentenced to ten years probation and, “deferred 

adjudication,” under Texas law. On October 24, 2005, the District Court of Jackson 

County, Texas issued an “Order Dismissing Cause Without Adjudication of Guilt” in 

 1

Throughout this decision, the term plaintiff shall be used in reference to Paul Earp.
Case No. 2009-04891 - 2 - MAGISTRATE DECISION

each of the criminal cases based upon the finding that plaintiff had “satisfactorily fulfilled 

the conditions of community service.” According to plaintiff, the legal effect of the 

October 24 orders is that plaintiff was never convicted of the offenses for which he was 

charged. 

{¶ 5} In August 2008, plaintiff, now married and living in Ravenna, Ohio, 

submitted an online employment application to defendant seeking a position as Senior 

User Support Analyst. On the application, plaintiff was asked whether he had been 

convicted of a crime and he answered “no.” A space where plaintiff could have entered 

an explanation if he had answered “yes” was left blank. 

{¶ 6} At the time that he submitted the application, plaintiff was working parttime for the University of Akron as a computer-support technician and he was looking 

for a full-time position. Plaintiff considered a position in defendant’s Information 

Services (I.S.) Department as a good option inasmuch as his wife Vanessa was 

employed as a teacher with defendant. Plaintiff’s wife knew of the Texas proceedings. 

{¶ 7} Plaintiff was granted an interview with three members of defendant’s I.S. 

department, which took place in late August or early September 2008. Plaintiff was 

later called back for a second interview with Dr. Franks, defendant’s Chief Information 

Officer. As a result of the interview process, an offer of employment was extended to 

plaintiff both orally and in writing. (Plaintiff’s Exhibit 3.) Neither the possibility of a 

background check nor plaintiff’s past criminal charges were discussed at any of the preoffer interviews. 

{¶ 8} On September 9, 2008, plaintiff arrived at defendant’s human resources 

department in order to complete an employment package. On that occasion, defendant 

asked plaintiff to execute a release authorizing defendant to complete a background 

check. Plaintiff realized that defendant would likely uncover the 1995 criminal 

proceedings and he “told them what was going to show up in Texas.” When plaintiff 

was asked upon cross-examination why he did not disclose the information sooner he 
Case No. 2009-04891 - 3 - MAGISTRATE DECISION

replied that he “didn’t want to open up a can of worms.” Plaintiff testified that when he 

left defendant’s offices that day, he still believed that he had been hired. 

{¶ 9} Plaintiff did not receive any further communication from defendant after 

the meeting even though he had attempted to contact defendant by telephone and 

email. On September 19, 2008, plaintiff arrived at the lobby of defendant’s I.S. 

department and was let into the department by one of defendant’s technicians. 

According to plaintiff, when an I.S. manager saw him he told plaintiff to return to the 

front lobby and that the issue of plaintiff’s employment was “out of our hands.” 

{¶ 10} After plaintiff returned to the lobby he was approached by Director of 

Talent Management Joseph Vitale and another human resources employee. Plaintiff 

testified that he was prepared to show Vitale the documents pertaining to his Texas 

case. According to plaintiff, however, Vitale stated, “you lied on your application, you 

were convicted of a felony, and we are rescinding the offer because of it.” Plaintiff 

attempted to explain to Vitale that he had not been “convicted” and he asked Vitale to 

look at the Texas documents, but Vitale refused. 

{¶ 11} Plaintiff’s lawyer subsequently sent a letter to Vitale in an effort to explain 

the situation in Texas but defendant never responded to the letter. (Plaintiff’s Exhibit 5.) 

{¶ 12} Defamation occurs when written or spoken statements reflect upon a 

person’s character in a manner that will cause him to be ridiculed, hated, or held in 

contempt, or in a manner that will injure him in his trade or profession. Matikas v. Univ. 

of Dayton, 152 Ohio App.3d 514, 2003-Ohio-1852. “Slander” refers to spoken 

defamatory words, while “libel” refers to written or printed defamatory words. Id. 

{¶ 13} Inasmuch as plaintiff is not a public figure, in order for plaintiff to prevail on 

a defamation claim he must prove: “‘(1) a false and defamatory statement, (2) about 

plaintiff, (3) published without privilege to a third party, (4) with fault of at least 

negligence on the part of the defendant, and (5) that was either defamatory per se or 

caused special harm to the plaintiff.’” See Northeast Ohio Elite Gymnastics Training 
Case No. 2009-04891 - 4 - MAGISTRATE DECISION

Ctr., Inc. v. Osbourne, 183 Ohio App.3d 104, 109, 2009-Ohio-2612, quoting Gosden v. 

Louis (1996), 116 Ohio App.3d 195, 206. 

{¶ 14} Under Ohio common law, actionable defamation falls into one of two 

categories: defamation per se or defamation per quod. Id. Spoken words are slander 

per se when they tend to injure a person in his trade or occupation. Schoedler v. 

Motometer Gauge & Equip. Corp. (1938), 134 Ohio St. 78, 84. When a statement is 

slanderous per se, some damages are presumed, and the plaintiff is not required to 

prove special damages. Id. See also Shoemaker v. Community Action Org. of Scioto 

Cty., Inc., Scioto No. 06CA3121, 2007-Ohio-3708, at ¶13. 

{¶ 15} With regard to the truth or falsity of the two statements, plaintiff has proven 

that the statement “you were convicted of a felony” is legally false in that the entry of the 

Texas district court specifically states that the charges are dismissed “without an 

adjudication of guilt.” The statement “you lied on your application” is false in that the 

online application requires an answer in the affirmative only if the applicant has been 

“convicted of a crime.” The court further finds that such statements would likely cause 

plaintiff to be ridiculed, hated, or held in contempt. Thus, the two statements are both 

false and defamatory. 

{¶ 16} Additionally, the alleged defamatory statements in this case are 

slanderous per se inasmuch as the statement “you were convicted of a felony” and “you 

lied on your application” arguably injure plaintiff’s employment in his chosen occupation 

or profession.2

 Thus, the statements are slanderous per se which means that plaintiff is 

relieved of the burden of proving special damages. 

 2

The statement “you were convicted of a felony” does not suggest a crime of moral turpitude 

unless the recipient has knowledge of the facts surrounding the conviction. Thus, the statement is not 

slanderous per se on that basis. See Schoedler, supra; Matalka v. Lagemann (1985), 21 Ohio App.3d 

134, 136. (Spoken words accusing a person of committing a crime are slanderous per se only if the 

crime is one of moral turpitude.) 
Case No. 2009-04891 - 5 - MAGISTRATE DECISION

{¶ 17} However, as defendant correctly asserts, plaintiff has failed to satisfy his 

burden of proof on the critical elements of publication to a third-party and actionable 

fault as to the falsity of the statements. 

{¶ 18} With respect to the element of publication, the only proven instance where 

the slanderous statements were uttered was during the discussion in the lobby. The 

parties agree that neither plaintiff’s wife who had prior knowledge of the Texas matter, 

nor the other unidentified human resources employee, qualifies as a third-party for 

purposes of the element of publication. Although plaintiff insists that the receptionist 

was close enough to hear Vitale’s statements, the evidence establishes that she was 

not within earshot inasmuch as the discussion took place near the elevators at the back 

of the lobby and the volume of the conversation was not much greater than a whisper. 

Plaintiff did not present credible evidence that anyone else heard the statements made 

in the lobby. 

{¶ 19} Plaintiff also claims that Vitale conveyed the false information to plaintiff’s 

co-workers at the University of Akron, a charge that Vitale adamantly denies. However, 

plaintiff did not submit any evidence to support his claim other than his testimony that 

some of his co-workers had knowledge of the Texas matter. Given the fact that 

information pertaining to proceedings in Texas is available to the public via the Internet 

and other means, the court is not convinced that Vitale published any defamatory 

statements to plaintiff’s co-workers. Thus, plaintiff has failed to satisfy his burden of 

proof on the critical element of publication to a third party. 

{¶ 20} With regard to Vitale’s culpability as to the falsity of the statements, Vitale 

testified that the information uncovered by the background check as reflected in the 

investigation report prepared by Open Online led him to believe that plaintiff had been 

convicted of a felony in Texas and that plaintiff had lied on his employment application. 

Vitale lives in Ohio and he is not a lawyer. The information Vitale relied upon was 

supplied to him by a private company that had been conducting background checks for 

defendant for a number of years. Although plaintiff claims that some of the information 
Case No. 2009-04891 - 6 - MAGISTRATE DECISION

contained in the investigation report was false, nothing in the report would have alerted 

a layperson in Vitale’s position of the need to make a further investigation. 

{¶ 21} In the court’s opinion, it is doubtful that anyone, other than a lawyer 

familiar with Texas criminal codes and procedures, would have gathered from a reading 

of the investigation report that plaintiff was not convicted of the crime of sexual assault 

upon a child. Thus, the court finds that Vitale’s failure to realize the falsity of the two 

defamatory statements was not the result of a lack of due care on his part. Even 

plaintiff acknowledged that Vitale simply did not understand that plaintiff was not 

convicted in the Texas matter. Thus, even if a publication had been proven, plaintiff has 

failed to satisfy his burden of proof on a second critical element of fault. In short, 

plaintiff’s claim of defamation must fail. 

{¶ 22} With regard to plaintiff’s claim of breach of contract, the evidence 

establishes that contract formation was expressly contingent upon a significant event 

which never occurred, the approval of the board of trustees. See R.C. 3341.04. (“The 

board of trustees of * * * Kent state university * * * shall elect, fix the compensation of, 

and remove the president and such number of professors, teachers, and other 

employees as may be deemed necessary * * *.”) Thus, no contract of employment was 

formed. 

{¶ 23} For the foregoing reasons, plaintiff’s contract claim must fail as well as 

plaintiff’s claim for declaratory relief. Having determined that plaintiff has failed to 

satisfy his burden of proof on any of the asserted claims, judgment is recommended in 

favor of defendant.3

 A party may file written objections to the magistrate’s decision within 14 days of 

the filing of the decision, whether or not the court has adopted the decision during that 

14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, 

 3

Defendant’s post-trial motion to amend its answer to assert the defense of release and waiver is 

DENIED. 
Case No. 2009-04891 - 7 - MAGISTRATE DECISION

any other party may also file objections not later than ten days after the first objections 

are filed. A party shall not assign as error on appeal the court’s adoption of any factual 

finding or legal conclusion, whether or not specifically designated as a finding of fact or 

conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically 

objects to that factual finding or legal conclusion within 14 days of the filing of the 

decision, as required by Civ.R. 53(D)(3)(b). 

 _____________________________________ 

 LEWIS F. PETTIGREW 

 Magistrate 

cc: 

 

David C. Perduk 

Richard P. Martin 

3603 Darrow Road 

Stow, Ohio 44224 

Randall W. Knutti 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

LP/cmd

Filed November 5, 2010/To S.C. reporter December 1, 2010