[Cite as McCulloch v. Ohio Dept. of Transp., 2014-Ohio-4946.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Travis McCulloch, : 

 Plaintiff-Appellant, : 

 No. 14AP-357 

v. : (Ct. of Cl. No. 2013-00637) 

Ohio Department of Transportation, : (ACCELERATED CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on November 6, 2014 

 

Jonathan M. Layman, Attorney at Law, LLC, and 

Jonathan M. Layman, for appellant. 

Michael DeWine, Attorney General, and Eric A. Walker, for 

appellee. 

 

APPEAL from the Court of Claims of Ohio 

O'GRADY, J. 

{¶ 1} Plaintiff-appellant, Travis McCulloch, appeals from a judgment of the Court 

of Claims of Ohio which granted summary judgment in favor of defendant-appellee, the 

Ohio Department of Transportation ("ODOT"). For the following reasons, we affirm. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} On November 16, 2012, appellant applied for a position as a Highway 

Technician I with ODOT. The duties of the position involved highway maintenance, 

including spraying vegetation with pesticides and signing pesticide reports. Appellant 

responded to questions about his qualifications in the employment application and 

indicated he "just got [his] commercial license to spray [vegetation]." (R. 15, exhibit B.) 

Appellant was hired full-time on January 14, 2013. 
No. 14AP-357 2 

{¶ 3} During his probationary period, ODOT conducted an investigation into 

whether appellant had a commercial license to spray vegetation at the time he submitted 

his application. ODOT learned he did not, since he failed to pay an additional 

administrative fee in order to obtain his license. ODOT issued appellant a letter 

informing him that his employment was terminated because he submitted false 

information on his employment application. Appellant resigned before his termination 

took effect. 

{¶ 4} On October 25, 2013, appellant filed a complaint in the Court of Claims 

against ODOT, alleging wrongful termination in violation of public policy, fraud, and 

defamation. ODOT filed a motion for summary judgment on February 6, 2014. ODOT 

asserted appellant was not wrongfully discharged; instead, he was terminated for 

falsifying information on his job application. ODOT also argued appellant failed to prove 

the elements of fraud and pointed to the lack of evidence that it made a false statement to 

appellant or concealed any fact from him. Finally, ODOT contended appellant could not 

prove his defamation claim, and, in any event, its actions were protected by qualified 

privilege. Accordingly, ODOT asserted it was entitled to judgment as a matter of law. 

{¶ 5} In his memorandum contra, appellant maintained he was wrongfully 

discharged in violation of a clear public policy in favor of proper regulation and 

documentation of spraying. Appellant argued the statement regarding his license on the 

employment application was true, since he was referring to the fact that he just passed his 

examination to obtain his license to spray vegetation. He pointed out a commercial 

license to spray was not a requirement of the position for which he applied. Appellant 

also pointed out ODOT chose to use him as a commercial sprayer without verifying 

whether he was properly licensed. When he told his supervisor he did not have a license 

card like other employees, appellant claimed he was ignored. Appellant argued there was 

no legitimate business justification for terminating him. Instead, appellant claimed 

ODOT falsified forms regarding his spraying activities and discharged him to avoid 

consequences for allowing him to spray without a commercial license. Appellant claimed 

ODOT told prospective employers he was dishonest and falsified his employment 

application. Appellant argued ODOT damaged his professional reputation, rendering him 

unemployable. In addition, appellant maintained his supervisor made a fraudulent 
No. 14AP-357 3 

omission when he ignored appellant's concerns about not having a license card like his coworkers. 

{¶ 6} On April 17, 2014, the Court of Claims rendered a decision and entered 

judgment granting ODOT's motion for summary judgment. Appellant timely appealed to 

this court. 

II. ASSIGNMENTS OF ERROR 

{¶ 7} Appellant presents us with two assignments of error for our review: 

[I.] THE APRIL 17, 2014 DECISION AND ENTRY FAILS TO 

IDENTIFY MULTIPLE GENUINE ISSUES OF MATERIAL 

FACT FOR TRIAL. 

[II.] THE APRIL 17, 2014 DECISION AND ENTRY ERRS AS 

A MATTER OF LAW BY FAILING TO IDENTIFY A CLEAR 

PUBLIC POLICY IN THE REGULATION OF CHEMICAL 

SPRAYING. 

III. STANDARD OF REVIEW 

{¶ 8} Appellate review of summary judgments is de novo. Titenok v. Wal-Mart 

Stores E., Inc., 10th Dist. No. 12AP-799, 2013-Ohio-2745, ¶ 6; Coventry Twp. v. Ecker, 

101 Ohio App.3d 38, 41 (9th Dist.1995). "When an appellate court reviews a trial court's 

disposition of a summary judgment motion, it applies the same standard as the trial court 

and conducts an independent review, without deference to the trial court's 

determination." Harris v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 13AP-466, 2013-

Ohio-5714, ¶ 6. "[S]ummary judgment is proper only when '(1) [n]o 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.' " Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, ¶ 6, quoting 

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977); Civ.R. 56(C). 
No. 14AP-357 4 

IV. DISCUSSION 

A. Defamation 

{¶ 9} Under his first assignment of error, appellant contends, in part, that the 

Court of Claims erred when it granted ODOT summary judgment on his defamation 

claim. 

{¶ 10} Defamation is the unprivileged publication of a false and defamatory 

statement about another. Watley v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 07AP902, 2008-Ohio-3691, ¶ 26, citing McCartney v. Oblates of St. Francis deSales, 80 Ohio 

App.3d 345, 353 (6th Dist.1992), citing McCarthy v. Cincinnati Enquirer, Inc., 101 Ohio 

App. 297 (1st Dist.1956). "A defamatory statement is one which tends to cause injury to a 

person's reputation or exposes him to public hatred, contempt, ridicule, shame or 

disgrace or adversely affects him in his trade or business." Id., citing McCartney at 353, 

citing Matalka v. Lagemann, 21 Ohio App.3d 134, 136 (10th Dist.1985). "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 or 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." Savoy v. 

Univ. of Akron, 10th Dist. No. 13AP-696,2014-Ohio-3043, ¶ 18, citing Schmidt v. 

Northcoast Behavorial Healthcare, 10th Dist. No. 10AP-565, 2011-Ohio-777, ¶ 8, citing 

McPeek v. Leetonia Italian-Am. Club, 174 Ohio App.3d 380, 2007-Ohio-7218, ¶ 8 (7th 

Dist.). 

{¶ 11} In his appellate brief, appellant points out that at the trial level, he averred 

ODOT "has told prospective employers that I am a dishonest person who committed 

fraud." (R. 18, McCulloch affidavit, ¶ 22.) He also averred that since his termination by 

ODOT, he has been unable to find employment. Appellant contends the truthfulness of 

the statement about his license on his employment application presents a genuine issue of 

material fact for trial; thus, there is a genuine dispute about whether statements allegedly 

made to potential employers by ODOT were false and defamatory. In other portions of 

his appellate brief, appellant contends the statement on his application was true because 

(1) the statement was made in response to a question about courses he had successfully 

completed, and he had completed coursework and passed an exam to become a licensed 
No. 14AP-357 5 

sprayer, (2) he was under a mistaken, justifiable belief that he in fact had a license, 

(3) after ODOT hired him, he attempted to confirm his licensure with the supervisor who 

ignored his inquiries about a license card. 

{¶ 12} Initially, we note appellant's averment that ODOT made statements to 

prospective employers regarding his honesty was vague and does not appear to be based 

on personal knowledge. Additionally, appellant's argument ignores the Court of Claims' 

finding that the only specific statement he identified in his deposition was protected by a 

qualified privilege. Even putting these issues aside, the argument appellant makes on 

appeal lacks merit because it is readily apparent that the statement on appellant's 

employment application that he "just got [his] commercial license to spray" was false. (R. 

15, exhibit B.) Appellant did not have a license when he filed his application. The fact that 

appellant made the statement about his license in response to a question about his 

education and was mistaken about his licensed status is irrelevant. Likewise, appellant's 

efforts to verify his license status after being hired by ODOT does not alter the falsity of 

the statement on his employment application. Therefore, we find no error in the grant of 

summary judgment to ODOT on the defamation claim and overrule the defamation 

portion of the first assignment of error. 

B. Fraud 

{¶ 13} Under his first assignment of error, appellant also contends that the Court 

of Claims erred when it granted ODOT summary judgment on his fraud claim. 

{¶ 14} "Fraud is defined as (1) a representation or, where there is a duty to 

disclose, concealment of a fact; (2) which is material to the transaction at hand; (3) made 

falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to 

whether it is true or false that knowledge may be inferred; (4) with the intent of 

misleading another into relying upon it; (5) justifiable reliance upon the representation or 

concealment; and (6) a resulting injury proximately caused by the reliance." Martin v. 

Ohio State Univ. Found., 139 Ohio App.3d 89, 98 (10th Dist.2000), citing Williams v. 

Aetna Fin. Co., 83 Ohio St.3d 464, 475 (1998). In order to establish a claim of fraud, a 

party must prove all the elements. Id. 

{¶ 15} According to appellant, he asked his supervisor at ODOT why he did not 

have a license card like other employees, and his supervisor replied "I don't want to hear 
No. 14AP-357 6 

about that." (Appellant's Brief, 13.) The supervisor had a license to spray vegetation 

himself; thus, according to appellant, the supervisor should have known appellant needed 

a license card. Appellant claims his supervisor made an "intentional omission" when he 

did not tell appellant he needed a license card, which constituted fraud. (Appellant's 

Brief, 13.) 

{¶ 16} As the Court of Claims recognized, appellant testified his supervisor did not 

know appellant was unlicensed. Appellant acknowledged his supervisor believed he was 

licensed based on his statement on his employment application. The brief exchange 

identified by appellant about his lack of a license card, not an actual license, does not 

create a genuine issue of material fact precluding summary judgment. Furthermore, any 

assertion or omission the supervisor may have made occurred during appellant's 

employment, well after appellant submitted his employment application. Appellant's 

separation from employment resulted from the fact that he represented on his 

employment application he had a commercial license to spray when he did not. 

Therefore, appellant's fraud claim fails because there is no causal connection between the 

supposed "intentional omission" by his supervisor and his separation from employment. 

Thus, the trial court did not err in entering summary judgment on appellant's fraud claim, 

and we overrule the fraud portion of the first assignment of error. 

C. Wrongful Discharge in Violation of Public Policy 

{¶ 17} Under the remainder of appellant's first assignment of error, he contends 

genuine issues of material fact precluded summary judgment on his wrongful discharge 

claim. Under his second assignment of error, appellant asserts the Court of Claims erred 

by failing to identify a clear public policy in the regulation of chemical spraying with 

regard to the wrongful discharge claim. We will address these arguments together. 

{¶ 18} Appellant claims he was wrongfully discharged in violation of public policy. 

In general, an employer can "terminate the employment of any at-will employee for any 

cause, at any time whatsoever, even if the termination was done in gross or reckless 

disregard of the employee's rights." Moore v. Impact Community Action, 10th Dist. No. 

12AP-1030, 2013-Ohio-3215, ¶ 7, citing Collins v. Rizkana, 73 Ohio St.3d 65, 67 (1995); 

Phung v. Waste Mgt., Inc., 23 Ohio St.3d 100, 102 (1986). However, the Supreme Court 

of Ohio recognized this right to terminate employment for any cause no longer includes 
No. 14AP-357 7 

the discharge of an employee where the discharge is in violation of a statute and therefore 

contravenes public policy. Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio 

St.3d 228 (1990), paragraphs one and two of the syllabus. If an employer does so, the 

discharged employee may bring a cause of action in tort against the employer. Id. at 

paragraph three of the syllabus. 

{¶ 19} To assert a viable claim for wrongful discharge in violation of public policy, 

a plaintiff must establish each of the following elements: 

"1. That a clear public policy existed and was manifested in a 

state or federal constitution, statute or administrative 

regulation, or in the common law (the clarity element). 

2. That dismissing employees under circumstances like those 

involved in the plaintiff's dismissal would jeopardize the 

public policy (the jeopardy element). 

3. The plaintiff's dismissal was motivated by conduct related 

to the public policy (the causation element). 

4. The employer lacked overriding legitimate business 

justification for the dismissal (the overriding justification

element). 

(Emphasis sic.) White v. Sears, Roebuck & Co., 163 Ohio App.3d 416, 2005-Ohio-5086, 

¶ 12 (10th Dist.), quoting Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 151 (1997); 

Wissler v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 09AP-569, 2010-Ohio-3432, 

¶ 18. The first two elements are questions of law to be determined by the court. The third 

and fourth elements are questions for the trier of fact. Id. at ¶ 18, citing Collins at 70. 

{¶ 20} Regarding the existence of a clear public policy, at the trial level and on 

appeal, appellant asserted the "[p]roper regulation and documentation of spraying 

activities is important to insure the public health and prevent environmental damage." 

(Appellant's Brief, 16.) He also relied on two administrative regulations. First, he cited 

Ohio Adm.Code 901:5-11-2(A)(2), which requires trained servicepersons who apply 

pesticides for hire do so under the direct supervision of a commercial applicator. Second, 

he cited Ohio Adm.Code 901:5-11-10, which contains information a commercial applicator 

must record in certain instances when he or a trained serviceperson working under his 

direct supervision applies pesticides. 
No. 14AP-357 8 

{¶ 21} The Court of Claims found appellant failed to cite any authority to support 

his contention that these regulations manifested a clear public policy. The Court of 

Claims found that even if it determined appellant had identified a clear public policy, 

there was "no question that [ODOT's] investigation of plaintiff's statements on his 

application was related to [ODOT's] efforts to comply with those regulations." (R. 19, 4.) 

Additionally, the Court of Claims also found it was clear ODOT's investigation, which 

resulted in appellant's decision to resign, "did not jeopardize the policy." (R. 19, 4.) 

{¶ 22} Under his second assignment of error, appellant complains the Court of 

Claims erred by determining a public policy had not been jeopardized without actually 

determining a policy existed or the nature of that policy. Appellant claims it is impossible 

to determine a policy has not been violated without determining what that policy entails. 

Appellant's contention lacks merit. Like the Court of Claims, this court is not persuaded 

the regulations appellant relies on demonstrate the existence of a clear public policy 

regarding the importance of "[p]roper regulation and documentation of spraying 

activities." (R. 18, 6.) Appellant cites no legal authority that would support such a 

finding. 

{¶ 23} Moreover, as the Court of Claims indicated, even if we gave appellant the 

benefit of the doubt that a public policy exists regarding spraying, his dismissal does not 

jeopardize it. At the trial level, appellant suggested his dismissal jeopardized a public 

policy on the regulation and documentation of spraying because ODOT supposedly 

doctored records and fired him to cover up unlicensed spraying activities. ODOT's alleged 

misconduct does not absolve appellant of responsibility for his own misstatements. 

Again, appellant is the person who represented he had a license when he did not and then 

sprayed without a license. Appellant's dismissal does not jeopardize any public policy in 

favor of regulating spraying activities; in fact, it would be consistent with regulations 

requiring licensure. Accordingly, we overrule appellant's second assignment of error. 

{¶ 24} Although somewhat unclear, under his first assignment of error appellant 

appears to address the causation and overriding business justification elements of his 

wrongful discharge claim. This portion of the assigned error is moot. We need not 

resolve whether those elements were satisfied in this case because appellant failed to 

establish the clarity and jeopardy elements. Consequently, we find no error in the grant of 
No. 14AP-357 9 

summary judgment on the wrongful discharge claim. Therefore, the portion of the first 

assignment of error regarding wrongful discharge is rendered moot. 

V. CONCLUSION 

{¶ 25} Appellant's first assignment of error is rendered moot in part and overruled 

in part. The second assignment of error is overruled. The judgment of the Court of 

Claims of Ohio is affirmed. 

Judgment affirmed. 

SADLER, P.J., and CONNOR, J., concur.