[Cite as Mullins v. Ohio Bd. of Regents, 2010-Ohio-545.]

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

JADA L. MULLINS 

 Plaintiff 

 v. 

OHIO BOARD OF REGENTS, et al. 

 Defendants 

Case No. 2006-07023 

Judge Joseph T. Clark 

DECISION

{¶ 1} Plaintiff brought this action alleging wrongful termination in violation of 

public policy, defamation, invasion of privacy, and “harassment.”1 The issues of liability 

and damages were bifurcated and the case proceeded to trial on the issue of liability. 

{¶ 2} Plaintiff’s claims arise as a result of the termination of her employment 

with the Ohio Board of Regents (OBR) on November 12, 2004. On September 20, 

1999, plaintiff began her employment with OBR and she was subsequently assigned as 

a secretary in the department of Educational Linkages and Access. Plaintiff was a 

member of the Ohio Civil Service Employees Association, AFSCME, Local 11, AFL-CIO 

(union) which represented bargaining unit employees such as plaintiff. Plaintiff's 

supervisor at the time was Jane Fullerton, OBR’s Associate Vice Chancellor. 

 1

Although plaintiff referred to a claim for racial discrimination in her post-trial brief, she did not 

allege discrimination in her complaint and no credible evidence was presented at trial to support such a 

claim. 
{¶ 3} It is undisputed that plaintiff was a capable worker; however, during her 

term of employment with OBR, she received extensive counseling and discipline for 

tardiness. According to the evidence, in 2001, OBR agreed to adjust plaintiff’s schedule 

to accommodate her efforts to obtain childcare. On November 27, 2002, Kristina Frost, 

OBR’s Vice Chancellor for Operations, and Mary Harriel, OBR’s Director of Human 

Resources, provided plaintiff with a memorandum entitled “Job Performance and Work 

Expectations.” (Defendants’ Exhibit W.) Plaintiff signed the memorandum which noted 

that “continued unprofessional behavior after receipt of these work expectations” would 

not be tolerated and would result in discipline. 

{¶ 4} Harriel testified that she maintained a “discipline log” which documented 

actions taken by OBR in response to plaintiff’s tardiness and unprofessional conduct. 

On May 8, 2003, plaintiff received a notice of “pattern abuse” of leave which showed 

that plaintiff had been late or absent 13 of 31 working days during the period from 

March 6, to April 17, 2003. OBR allowed adjustments to plaintiff’s starting time between 

June 25, and July 25, 2003; however, in August 2003, plaintiff received three oral 

reprimands for tardiness and unprofessional behavior. In September 2003, plaintiff was 

again allowed to change her starting time. According to Harriel, plaintiff was on 

disability leave from October 27, 2003 to February 12, 2004. On March 17, 2004, 

plaintiff received a written reprimand which cited 12 incidents of tardiness and “pattern 

abuse.” (Defendants’ Exhibit E.) On March 22, plaintiff once again changed her starting 

time. On May 17, 2004, plaintiff was placed on a 30-day suspension for failure of good 

behavior, misfeasance, misuse of state equipment, and unauthorized access after 

working hours. 

{¶ 5} When plaintiff returned to work on June 29, 2004, she received an 

updated version of OBR’s Job Performance and Work Expectations. Harriel testified 

that plaintiff continued to have attendance problems after her return to work and that 

Ray Mussio, a labor relations specialist from the Ohio Office of Collective Bargaining, 

was assigned to conduct an investigation of four incidents of tardiness. Mussio testified 

that plaintiff admitted that she had been tardy on three of the occasions under 

investigation and that she did not recall the fourth incident. According to Mussio, 

plaintiff stated during her interview that she believed she had been “targeted” by OBR’s 
management and that attendance rules were not evenly enforced. Following the 

investigation, on October 21, 2004, a pre-disciplinary meeting was conducted which 

resulted in a finding of just cause for discipline. (Defendants’ Exhibit FF.) On 

November 12, 2004, plaintiff was notified by a letter from Roderick Chu, OBR’s 

Chancellor, that she had been found in violation of OBR’s time and attendance policy 

and that her employment with OBR had been terminated. (Defendants’ Exhibit M.) 

WRONGFUL TERMINATION

{¶ 6} With regard to plaintiff’s claim for wrongful termination in violation of public 

policy, as a member of the bargaining unit, plaintiff was entitled to file a grievance to 

challenge her termination. Plaintiff did so and her grievance was addressed at the 

hearing before the arbitrator who upheld plaintiff’s removal pursuant to the terms of the 

union contract. (Defendants’ Exhibit O.) 

{¶ 7} The Ohio Supreme Court has held that a union employee with terms of 

employment governed by a collective bargaining agreement is barred from asserting a 

wrongful termination claim on the basis of public policy. Haynes v. Zoological Society of 

Cincinnati (1995), 73 Ohio St.3d 254. “Wrongful discharge in violation of public policy 

serves to afford at-will employees protection from employers who unilaterally terminate 

employees for abusive reasons. Employees subject to a [collective bargaining 

agreement] do not require judicially-created protection because their employment rights 

are already subject to protection.” Urban v. Osborn Mfg., 165 Ohio App.3d 673, 2006-

Ohio-1080, ¶18. 

{¶ 8} Inasmuch as plaintiff was a union employee, and the terms of her 

employment were defined by a collective bargaining agreement, she cannot prevail on 

her claim for wrongful termination in violation of public policy. 

DEFAMATION

{¶ 9} As for the claim for defamation, plaintiff contends that OBR published false 

statements about her tardiness, alleged drug use, and her “threatening conduct.” 

{¶ 10} Defamation, which includes both libel and slander, is a false publication 

causing injury to a person’s reputation, exposing the person to public hatred, contempt, 

ridicule, shame or disgrace, or affecting the person adversely in his or her trade or 
business. Sweitzer v. Outlet Communications, Inc. (1999), 133 Ohio App.3d 102, 108. 

Under Ohio law, truth is a complete defense to a claim for defamation. Ed Schory & 

Sons, Inc. v. Francis, 75 Ohio St.3d 433, 445, 1996-Ohio-194. 

{¶ 11} There is no question that plaintiff violated OBR’s time and leave policy. 

Although plaintiff asserts that Harriel told other employees that plaintiff had been under 

the influence of drugs or alcohol, Harriel denied making such statements and plaintiff 

failed to present any credible evidence to support her allegation. Plaintiff also alleged 

that Kristina Frost stated that plaintiff had exhibited threatening conduct. However, no 

corroborating evidence was presented to show that Frost made such a comment. The 

court finds that plaintiff has not proven by a preponderance of the evidence that any 

statements made by OBR’s employees were untrue. 

{¶ 12} Furthermore, in the context of a defamation claim, the defense of privilege 

applies to statements that are “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 circumstances fairly warranted by the occasion and duty, right or 

interest. The essential elements thereof are good faith, an interest to be upheld, a 

statement limited in its scope to this purpose, a proper occasion, and publication in a 

proper manner and to proper parties only.” Hahn v. Kotten (1975), 43 Ohio St.2d 237, 

244. A qualified privilege can be defeated only by clear and convincing evidence of 

actual malice. Bartlett v. Daniel Drake Mem. Hosp. (1991), 75 Ohio App.3d 334, 340. 

“Actual malice” is “acting with knowledge that the statements are false or acting with 

reckless disregard as to their truth or falsity.” Jacobs v. Frank (1991), 60 Ohio St.3d. 

111, 116. 

{¶ 13} Even if plaintiff had proven that OBR’s employees made false and 

defamatory statements, she could not prevail on her defamation claim if such 

statements were made subject to a qualified privilege. Plaintiff admits that the alleged 

defamatory statements made by OBR employees were published in connection with 

OBR’s investigations and disciplinary actions even though plaintiff characterized OBR’s 

actions as a “relentless” conspiracy to terminate her employment. Thus, based upon 

the totality of the evidence, the court is convinced that the statements at issue 
concerned plaintiff’s fitness as an employee. As managers, Harriel and Frost had a 

duty to investigate allegations of tardiness and workplace violence and they made the 

statements about plaintiff to other OBR employees who had a corresponding interest. 

In short, statements made either by plaintiff’s supervisors or by those employees who 

were charged with conducting the investigations which led to her termination were 

conditionally privileged inasmuch as the statements were made in good faith and 

concerned matters in which the employees had a common interest or duty. 

INVASION OF PRIVACY

{¶ 14} Plaintiff’s claim for invasion of privacy is based upon actions taken by her 

supervisors, including having her arrival time monitored, posting scheduling information 

concerning employee hearings, and placing plaintiff on administrative leave. Plaintiff 

specifically asserts that Harriel and Fullerton should have known that such actions 

would cause ridicule and embarrassment. 

{¶ 15} The Supreme Court of Ohio has recognized an invasion of privacy claim 

involving “the wrongful intrusion into one’s private activities in such a manner as to 

outrage or cause mental suffering, shame or humiliation to a person of ordinary 

sensibilities.” Housh v. Peth (1956), 165 Ohio St. 35, paragraph two of the syllabus. 

“The scope of a person’s liability for intrusion into another’s seclusion is stated in 

Section 652B of the Restatement of Torts 2d, as follows: ‘One who intentionally 

intrudes, physically or otherwise, upon the solitude or seclusion of another or his private 

affairs or concerns, is subject to liability to the other for invasion of his privacy, if the 

intrusion would be highly offensive to a reasonable person.’” Sustin v. Fee (1982), 69 

Ohio St.2d 143, 145. 

{¶ 16} The actions which plaintiff claims to have been a wrongful intrusion into 

her private activities were conducted during business hours and were, for the most part, 

open to public observation. Specifically, plaintiff’s late arrivals occurred in plain view of 

other employees. Furthermore, a public employee’s expectation of privacy in the 

workplace may be limited by office practices, work procedures, or regulation. Brannen v. 

Bd. of Educ.(2001), 144 Ohio App.3d 620, 630. Indeed, some government offices may 

be so open to the public or other employees that there may be no reasonable 
expectation of privacy. Id. With regard to plaintiff’s assertion that OBR’s employees 

unreasonably monitored her computer use, Ohio courts have found that employees 

have no expectation of privacy in their office space, computer, or desk if the employer 

owns them and they are assessable to other employees. Branan v. Mac Tools, Franklin 

App. No. 03AP-1096, 2004-Ohio-5574, ¶43-46; Coats v. Cuyahoga Metro. Housing. 

Auth. (Apr. 12, 2001), Cuyahoga App. No. 78012. Additionally, plaintiff acknowledged 

that, as early as 2001, she was aware that her supervisors were monitoring both her 

arrival time and her computer usage. The court finds that plaintiff had no reasonable 

expectation of privacy regarding her work in OBR’s offices. 

{¶ 17} Furthermore, in the context of an office environment, periodic monitoring 

by a supervisor would not be highly offensive to a reasonable person. As discussed 

above, plaintiff’s supervisors had legitimate business reasons for monitoring and 

investigating her conduct in the office. Although plaintiff testified that she resented 

being monitored, she failed to prove that such monitoring would be highly offensive to a 

reasonable person. In fact, plaintiff failed to show that the monitoring was highly 

offensive to her. In reply to a message from a fellow employee which was critical of a 

supervisor, plaintiff replied as follows: “I HOPE THAT THEY ARE SPYING ON THIS 

CONVERSATION. IF SO, GO F%*K YOURSELVES.” (Defendants’ Exhibit DD.) The 

court finds that the administrative actions which plaintiff asserts were unwarranted 

would not be highly offensive to a reasonable person. Accordingly, plaintiff’s claim for 

invasion of privacy must fail. 

HARASSMENT

{¶ 18} The court construes plaintiff’s claim for “harassment” as a claim for 

intentional infliction of emotional distress. In order to sustain such a claim, plaintiff must 

show that: “(1) defendant intended to cause emotional distress, or knew or should have 

known that actions taken would result in serious emotional distress; (2) defendant’s 

conduct was extreme and outrageous; (3) defendant’s actions proximately caused 

plaintiff’s psychic injury; and (4) the mental anguish plaintiff suffered was serious.” 

Hanly v. Riverside Methodist Hosp. (1991), 78 Ohio App.3d 73, 82; citing Pyle v. Pyle 

(1983), 11 Ohio App.3d 31, 34. 
{¶ 19} To constitute conduct sufficient to give rise to a claim of intentional 

infliction of emotional distress, the conduct must be “so outrageous in character, and so 

extreme in degree, as to go beyond all possible bounds of decency, and to be regarded 

as atrocious, and utterly intolerable in a civilized community.” Yeager v. Local Union 20, 

Teamsters (1983), 6 Ohio St.3d 369, 375, quoting 1 Restatement of the Law 2d, Torts 

(1965) 73, Section 46, Comment d. 

{¶ 20} “It has not been enough that the defendant has acted with an intent which 

is tortious or even criminal, or that he has intended to inflict emotional distress, or even 

that his conduct has been characterized by ‘malice,’ or a degree of aggravation which 

would entitle the plaintiff to punitive damages for another tort. * * * Generally, the case 

is one in which the recitation of the facts to an average member of the community would 

arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ The 

liability clearly does not extend to mere insults, indignities, threats, annoyances, petty 

oppressions, or other trivialities.” Id. at 374-375. 

{¶ 21} The court finds that plaintiff has failed to allege any conduct on the part of 

OBR’s employees that could be reasonably characterized as extreme and outrageous 

as is necessary to support a claim for intentional infliction of emotional distress. 

Accordingly, plaintiff cannot prevail on her claim of “harassment” and intentional 

infliction of emotional distress. 

{¶ 22} For the foregoing reasons, judgment shall be rendered in favor of 

defendants. 

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 

JADA L. MULLINS 

 Plaintiff 
 v. 

OHIO BOARD OF REGENTS, et al. 

 Defendants 

Case No. 2006-07023 

Judge Joseph T. Clark 

JUDGMENT ENTRY

 This case was tried to the court on the issue of liability. The court has 

considered the evidence and, for the reasons set forth in the decision filed concurrently 

herewith, judgment is rendered in favor of defendants. 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. 

 _____________________________________ 

 JOSEPH T. CLARK 

 Judge 

cc: 

 

Susan M. Sullivan 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Jada L. Mullins 

P.O. Box 7605 

Columbus, Ohio 43207 

AMR/cmd

Filed January 22, 2010 

To S.C. reporter February 16, 2010