[Cite as Webber v. Ohio Dept. of Public Safety, 2017-Ohio-2695.]

{¶1} On August 17, 2016, the court issued an entry which granted, in part, 

defendant’s motion for judgment on the pleadings and dismissed plaintiff’s claims based 

upon civil conspiracy, both intentional and negligent infliction of emotional distress, and 

negligent supervision. On February 13, 2017, defendant filed both a motion for 

summary judgment pursuant to Civ.R. 56(B) on plaintiff’s defamation claim and any 

immunity issues and a motion for leave to file a long supporting brief. On March 3, 

2017, plaintiff filed a response. On March 13, 2017, defendant filed both a 

supplemental memorandum in support of its motion for summary judgment and a 

motion for leave to file the same. Defendant’s February 13, 2017 and March 13, 2017 

motions for leave are GRANTED. Plaintiff’s March 20, 2017 motion to strike 

defendant’s March 13, 2017 motions is DENIED. The motion for summary judgment is 

now before the court for a non-oral hearing. 

{¶2} Civ.R. 56(C) states, in part, as follows: 

{¶3} “Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence, and written stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. No evidence or stipulation may be considered except as 

ALICE WEBBER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF PUBLIC 

SAFETY 

 Defendant 

Case No. 2015-00449 

Judge Patrick M. McGrath

Magistrate Anderson M. Renick 

DECISION 
Case No. 2015-00449 -2- DECISION 

stated in this rule. A summary judgment shall not be rendered unless it appears from 

the evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled to 

have the evidence or stipulation construed most strongly in the party’s favor.” See also

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean 

United, Inc., 50 Ohio St.2d 317 (1977). 

{¶4} At all relevant times, plaintiff was employed as an Assistant Director of the 

Lorain County Emergency Management Agency (LCEMA). In May 2014, a flooding 

event occurred in Lorain County. At the time, Tom Kelly, the LCEMA director, was out 

of state and plaintiff was in charge of coordinating the agency’s response. Cathy Deck 

and Leslie Bricker, liaisons for the Ohio Emergency Management Agency (OEMA), 

traveled to Lorain County to assist LCEMA. Defendant’s director, Nancy Dragani, 

requested information for the Governor’s office and OEMA employees obtained 

information from Deck and Bricker which had been recorded in “street sheets” by county 

employees who had surveyed the flood damage. The street sheets documented the 

preliminary damage assessment (PDA). Thereafter, defendant’s employee, Brigitte 

Bouska was directed by her supervisor, Laura Adcock, to review the street sheets. 

Bouska became concerned that some of the information in the street sheets was 

incorrect when, among other things, she noticed that all residents in one area had 

allegedly reported that they had flood insurance, even though she knew that many Ohio 

residents did not carry flood insurance. Bouska asked Deck to verify certain information 

and Deck contacted plaintiff for clarification. 

{¶5} Plaintiff called Bouska to provide additional information and, during the 

telephone conversation, Bouska asked plaintiff about areas that were not assessed. 

According to Bouska, plaintiff related that the area affected by the flooding had included 

“vulnerable populations,” such as low-income, minority, and disabled residents. Bouska 
Case No. 2015-00449 -3- DECISION 

advised Adcock that she was concerned that information about certain areas had not 

been accurately represented on the street sheets. Bouska informed Adcock that at 

least one of the areas that was not assessed or reported on the street sheets had 

“Spanish speaking residents.” Adcock directed Bouska to go to Lorain County and 

complete the PDA. Adcock spoke to plaintiff and requested a Spanish-English 

translator to assist Bouska in completing the PDA. 

{¶6} After Director Dragani learned of the situation in Lorain County, she 

discussed the matter with Deputy Director, Sima Merick, and based upon their concern 

about Deck and Bricker’s work on the PDA, they referred the matter to the 

Administrative Investigations Unit (AIU). The investigations supervisor in the AIU, 

Kathleen Botos, opened an investigation concerning the conduct of Deck and Bricker 

during the Lorain County flooding event. Botos prepared a report that summarized the 

investigation. (Defendant’s Exhibit 1.) During the investigation, Botos learned that the 

telephone conversation between Bouska and plaintiff had been recorded. After listening 

to the recording, Botos determined that plaintiff’s reference to Spanish-speaking 

residents concerned an area which had been assessed and that plaintiff had not stated 

that the areas that were not referenced on the street sheets had not been assessed 

because the residents spoke Spanish. Botos confronted Bouska about the discrepancy 

between her statement and the recording, but Bouska continued to maintain that she 

had accurately communicated her recollection of her conversation with plaintiff. 

{¶7} According to Dragani, she investigated the conduct of Deck and Bricker and 

plaintiff was never the subject of her investigation. During her investigation, Dragani 

learned that Deck and Bricker denied hearing plaintiff make any inappropriate 

comments about race, ethnicity, or the ability to speak English. As a result of the 

investigation it was determined that there were no communities that were not assessed 

due to any language barrier and that Bouska misstated what plaintiff had reported to her 

in their telephone conversation. Dragani concluded that Bouska had not acted in a 
Case No. 2015-00449 -4- DECISION 

malicious manner when she reported her concerns about the areas that were not 

assessed. However, Dragani determined that Bouska did not exercise due diligence in 

her review of the allegations. 

Defamation 

{¶8} In her second amended complaint, plaintiff states that defendant’s 

employee, Bouska, provided false and defamatory statements to entities or individuals, 

including Adcock, Dragani, Andrew Elder, and Merick. Specifically, plaintiff alleges that 

the statements accused plaintiff of being discriminatory and racist for failing to perform 

her job duties based upon the ethnicity of the residents. Plaintiff also seeks a 

determination whether Bouska, Adcock, Dragani, Elder, and Merick are entitled to civil 

immunity pursuant to R.C. 2743.02(F) and 9.86. 

{¶9} “To prevail on a defamation claim, whether libel or slander, a plaintiff must 

prove the following elements: (1) a false statement, (2) about the plaintiff, (3) was 

published without privilege to a third party, (4) with fault of at least negligence on the 

part of the defendant, and (5) the statement was either defamatory per se or caused 

special harm to the plaintiff.” Schmidt v. Northcoast Behavioral Healthcare, 10th Dist. 

Franklin No. 10AP-565, 2011-Ohio-777, ¶ 8. 

{¶10} “To constitute defamation per se, the ‘words must be of such a nature that 

courts can presume as a matter of law that they tend to degrade or disgrace the person 

of whom they are written or spoken, or hold him up to public hatred, contempt or scorn.’ 

Moore v. P.W. Publishing Co. (1965), 3 Ohio St.2d 183, 188, 209 N.E.2d 412. A 

statement is defamation per se if it “tends to injure a person in his or her trade, 

profession, or occupation * * * [and] both damages and actual malice are presumed to 

exist.” Knowles v. Ohio State Univ., 10th Dist. Franklin No. 02AP-527, 2002 Ohio 6962; 

Lennon v. Cuyahoga Cnty. Juvenile Court, 8th Dist. Cuyahoga No. 86651, 2006-Ohio2587, ¶ 25. 
Case No. 2015-00449 -5- DECISION 

{¶11} Defendant contends that plaintiff cannot establish a claim for defamation 

because the alleged comments are not actionable and constitute mere opinion. 

Defendant cites a series of cases from other jurisdictions where courts have held that, in 

particular circumstances, defamation claims cannot be predicated upon accusations of 

racism. See Stevens v. Tillman, 855 F.2d 394, 400-402 (7th Cir. 1988) (concluding 

accusation of racism was not actionable because it was an opinion). However, the 

court notes that Ohio courts have determined that “[b]eing referred to as a racist may, at 

times, constitute defamation per se.” Lennon at ¶ 28. 

{¶12} The Tenth District Court of Appeals has observed that Ohio has adopted 

the “innocent construction rule.” Sweitzer v. Outlet Communications, Inc. 133 Ohio 

App.3d 102, 112 (10th Dist.1999). Under the innocent-construction rule, “if an utterance 

is reasonably susceptible to both a defamatory and an innocent meaning, as a matter of 

law, the innocent meaning is to be adopted.” Id. 

{¶13} Plaintiff claims that Bouska uttered defamatory statements alleging that 

plaintiff did not perform her job duties because of bias or prejudice regarding “Spanish 

people” in the communities that were being assessed. Defendant argues that such 

statements do not impute bigotry to plaintiff and that an equally innocent construction is 

that the community was not assessed for damages because there may have been a 

language barrier in the Spanish-speaking community. The court agrees. 

{¶14} In her deposition, plaintiff testified that she was aware that at least part of 

the area that was being assessed had Spanish-speaking residents. (Plaintiff’s 

deposition, pages 115-116). Plaintiff also acknowledged that she was asked by 

defendant’s employees about the availability of a Spanish-English interpreter to assist 

with the assessment. Plaintiff admitted that she was not aware of anyone who had 

directly accused her of being a racist as a result of either the incident or the subsequent 

investigation. (Plaintiff’s deposition, page 138.) 
Case No. 2015-00449 -6- DECISION 

{¶15} Considering the context from which the statements arose, the court finds 

that, there is a reasonable innocent construction and, therefore, this construction must 

be adopted. Accordingly, the court finds that, as a matter of law, the statements at 

issue are not defamatory and plaintiff cannot prevail on her defamation claim. 

Civil Immunity 

{¶16} Plaintiff also seeks a determination whether Bouska, Adcock, Dragani, 

Elder, and Merick are entitled to civil immunity pursuant to R.C. 2743.02(F) and 9.86. 

{¶17} R.C. 2743.02(F) states, in part: 

{¶18} “A civil action against an officer or employee, as defined in section 109.36 

of the Revised Code, that alleges that the officer’s or employee’s conduct was 

manifestly outside the scope of the officer’s or employee’s employment or official 

responsibilities, or that the officer or employee acted with malicious purpose, in bad 

faith, or in a wanton or reckless manner shall first be filed against the state in the court 

of claims, which has exclusive, original jurisdiction to determine, initially, whether the 

officer or employee is entitled to personal immunity under section 9.86 of the Revised 

Code and whether the courts of common pleas have jurisdiction over the civil action.” 

{¶19} R.C. 9.86 states, in part: 

{¶20} “[N]o officer or employee [of the state] shall be liable in any civil action that 

arises under the law of this state for damage or injury caused in the performance of his 

duties, unless the officer’s or employee’s actions were manifestly outside the scope of 

his employment or official responsibilities, or unless the officer or employee acted with 

malicious purpose, in bad faith, or in a wanton or reckless manner.” 

{¶21} In its motion for summary judgment, defendant presented evidence to show 

that, at all times relevant to this action, its employees acted within the scope of their 

employment and without malicious purpose, in bad faith, or in a wanton or reckless 

manner. Plaintiff’s response to the motion for summary judgment failed to present any 

evidence or legal argument to support a finding that defendant’s employees are not 
Case No. 2015-00449 -7- DECISION 

entitled to civil immunity. Therefore, the court finds that that Bouska, Adcock, Dragani, 

Elder, and Merick are entitled to immunity pursuant to R.C. 9.86 and 2743.02(F) and 

that the courts of common pleas do not have jurisdiction over any civil actions that may 

be filed against them based upon the allegations in this case. 

{¶22} For the foregoing reasons, the court finds that there are no genuine issues 

of material fact and that defendant is entitled to judgment as a matter of law. 

Accordingly, defendant’s motion for summary judgment shall be granted. 

 PATRICK M. MCGRATH 

 Judge 
[Cite as Webber v. Ohio Dept. of Public Safety, 2017-Ohio-2695.]

{¶23} A non-oral hearing was conducted in this case upon defendant’s motion for 

summary judgment. For the reasons set forth in the decision filed concurrently 

herewith, defendant’s motion for summary judgment is GRANTED and judgment is 

rendered in favor of defendant. The court finds that Brigitte Bouska, Laura Adcock, 

Nancy Dragani, Andrew Elder, and Sima Merick are entitled to immunity pursuant to 

R.C. 9.86 and 2743.02(F) and that the courts of common pleas do not have jurisdiction 

over any civil actions that may be filed against them based upon the allegations in this 

case. Court costs are assessed against plaintiff. The clerk shall serve upon all parties 

notice of this judgment and its date of entry upon the journal. 

 PATRICK M. MCGRATH 

 Judge 

cc: 

John J. Gill 

7081 Pearl Road 

Middleburg Heights, Ohio 44130 

Velda K. Hofacker 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Filed March 31, 2017 

Sent to S.C. Reporter 5/5/17

ALICE WEBBER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF PUBLIC 

SAFETY 

 Defendant 

Case No. 2015-00449 

Judge Patrick M. McGrath

Magistrate Anderson M. Renick 

JUDGMENT ENTRY