Waters v. Ohio State Univ., Case No. 2015-00457
| Decision Date | 19 July 2016 |
| Docket Number | Case No. 2015-00457 |
| Citation | 2016 Ohio 5260 |
| Parties | JONATHAN N. WATERS Plaintiff v. THE OHIO STATE UNIVERSITY Defendant |
| Court | Ohio Court of Claims |
{¶1} Before the court for determination is a Civ.R. 12(C) motion for judgment on the pleadings filed by defendant The Ohio State University (OSU), which plaintiff Jonathan N. Waters opposes. Because the court concludes that OSU is entitled to judgment as a matter of law, the court grants OSU's motion.
{¶2} On February 1, 2013, Waters became the "full-time" director of the OSU marching band and athletic bands. (Complaint at ¶ 1; Answer at ¶ 1.) According to OSU, prior to Waters' appointment as band director, he served as an OSU band member, a graduate assistant with the band, assistant director of the band, and interim director of the band. (Answer at ¶ 1.) As director of the band, Waters traveled throughout Ohio and elsewhere to raise funds on behalf of OSU. (Complaint at ¶ 1; Answer at ¶ 1.) While Waters served as the band's director, the OSU marching band received national and international attention for its performances. (Complaint at ¶ 1; Answer at ¶ 1.)
{¶3} Waters claims that on May 1, 2014 the United States Department of Education, Office of Civil Rights, named OSU as one of 55 colleges and universities under investigation for possible violations of federal law related to the handling of sexual violence and harassment complaints. (Complaint at ¶ 3.) OSU denies this claim; rather, according to OSU, it and the United States Department of Education, Office for Civil Rights, began a compliance review of OSU's Title IX program on June 23, 2010, and the United States Department of Education, Office for Civil Rights presented a draft Resolution Agreement to OSU in August 2013. (Answer at ¶ 3.)
{¶4} On May 23, 2014, a parent of an OSU marching band member reported information about the band's culture to OSU's Office of University Compliance and Integrity because the parent was concerned that the band's culture was sexualized and that its members were made to swear secrecy oaths about objectionable traditions and customs. (Complaint at ¶ 3; Answer at ¶ 3, Exhibit C.) The parent requested an investigation of the allegations. (Answer, Exhibit C.) According to OSU, the information constituted a complaint under university policy and Title IX of the Education Amendments of 1972.1 (Answer, Exhibit C.) The Office of University Compliance, which oversees Title IX compliance for OSU, investigated the issues raised by the parent's complaint, "as required by university policy and federal law." (Exhibit C to Answer at 1.)2
{¶5} On July 22, 2014, OSU issued a report based on its investigation (Title IX Investigation Report). (Exhibit C to Answer.) This report found that the marching band's culture "facilitated acts of sexual harassment, creating a hostile environment for students" and that "Jonathan Waters knew or reasonably should have known about this culture but failed to eliminate the sexual harassment, prevent its recurrence, and address its effects." (Exhibit C to Answer, at 21.) Among suggested corrective action, the Title IX Investigation Report recommended, "Take appropriate personnel action to address all concerns." (Id. at 22.) On July 24, 2014—two days after the Title IX Investigation Report was issued—OSU dismissed Waters as director of its marching band and athletic bands. (Complaint at ¶ 12; Answer at ¶ 12.)
{¶6} Several months later—in September 2014—Waters sued OSU and other defendants in the United States District Court for the Southern District of Ohio, alleging violations of due process, and disparate treatment and retaliation in violation of Title IX and its implementing regulations. (Exhibit A to Answer.)
{¶7} On May 8, 2015, Waters sued OSU in this court, asserting three causes of action: (1) defamation, (2) slander per se, and (3) false-light invasion of privacy. According to Waters, these causes of action stem from OSU's Title IX Investigation Report, certain press releases issued by Chris Davey, Assistant Vice President, Media and Public Relations, after OSU's dismissal of Waters, and comments by Michael V. Drake, M.D., President of OSU, following the dismissal of Waters. OSU has answered Waters' complaint, admitting some allegations but denying that it is liable for defamation, slander per se, and false-light invasion of privacy.
{¶8} After Waters filed his complaint, the parties engaged in motion practice before the court, filing various motions and briefings between 2015 and 2016. With the exception of this motion for judgment on the pleadings filed by OSU pursuant to Civ.R. 12(C), the court has ruled upon the other motions filed by the parties. On February 24, 2016, on Waters' counsel's motion, the court permitted Waters' counsel to withdraw in this case. Waters subsequently has filed a notice of proceeding pro se.
{¶9} In its motion for judgment on the pleadings, OSU asserts that Waters' claims should fail because he has acknowledged in his complaint that OSU's conclusions about the band, as set forth in the Title IX Investigation Report, are true. OSU essentially urges: (1) that Waters improperly attempts to convert the findings of OSU's investigation about the band's culture into findings about him and, as a consequence, Waters lacks standing; (2) that Waters has admitted to the truth of the conclusions of OSU's investigation and he cannot demonstrate a false statement to support his claims and, as a consequence, President Drake's and Chris Davey's subsequent statements are true and non-defamatory; (3) that Waters cannot overcome enhanced burdens—i.e., he cannot prove that OSU acted with actual malice insofar as Waters is a public figure—"most likely a general purpose public figure, but at least a limited purpose public figure" (Motion for Judgment on the Pleadings at 34)—and required to plead and prove actual malice; (4) that Waters may not overcome immunities that apply to his claims, e.g., a public policy privilege and discretionary immunity, and (5) that Waters' demand for punitive damages should be dismissed.
{¶10} In opposition, Waters contends that OSU's motion for judgment on the pleadings is a disguised motion for summary judgment and he maintains that the Ohio Rules of Civil Procedure require notice pleading and his pleading conforms to this standard. He notes that OSU in its motion does not address alleged defamatory comments by President Michael V. Drake, M.D., and Assistant Vice President, Media and Public Relations, Chris Davey.
{¶11} Waters urges that standing exists because OSU's Title IX Investigation Report holds him accountable for the culture that existed during his last 12 years with the band. He asserts that OSU is asking the court to apply qualified privileges that may not be properly considered without a factual record and that OSU's claims of a conditional public policy privilege or discretionary immunity to publish false statements are premature. Waters maintains that judgment on the pleadings in favor of OSU based on qualified immunity should fail because factual questions exist whether OSU acted in good faith concerning the purpose and scope of the publication of its Title IX Investigation Report. Waters further maintains that, although discretionary immunity may protect a discretionary decision, discretionary immunity does not protect wrongful conduct in the implementation of a discretionary decision. Waters contends that OSU should not be permitted to raise the issue of discretionary immunity because it did not raise it as an affirmative defense in its answer. Waters asserts that his status is one of a private individual and whether he is a public figure for any purpose cannot be resolved at the pleading stage because a determination of this issue involves numerous questions of fact. Waters concedes, however, that he may not seek punitive damages against OSU.
{¶12} Civ.R. 12(C) permits motions for judgment on the pleadings, providing: "After the pleadings are closed but within such times as not to delay the trial, any party may move for judgment on the pleadings." In S.E.A. Inc. v. Dunning-Lathrop & Assocs., 10th Dist. Franklin Nos. 03AP-1051, 03AP-1052, 2004 Ohio App. LEXIS 3734, at *11-12 (Aug. 5, 2004), the Tenth District Court of Appeals stated, "The Ohio Supreme Court has made it abundantly clear that a court's review of a Civ.R. 12(C) motion is limited exclusively to the allegations contained in the complaint and answer, and any writings properly attached to such and that a trial court may not consider any other evidentiary materials." Thus, applying S.E.A. Inc. to this case, when determining OSU's Civ.R. 12(C) motion for judgment on the pleadings, this court is limited to the allegations contained in the complaint and answer and any writing that is properly attached to them.
{¶13} In State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996), the Supreme Court of Ohio discussed the standard for determining a Civ.R. 12(C) motion for judgment on the pleadings, stating: "Civ.R. 12(C) motions are specifically for resolving questions of law, Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 166, 63 Ohio Op. 2d 262, 264, 297 N.E.2d 113, 117." Pontious states at 570: "Under Civ. R. 12(C), dismissal is appropriate where a court (1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief."
{¶14} Thus, applying Pontious, at issue is whether, after construing the material allegations in Waters' complaint, with all reasonable inferences drawn in his favor as true, whether OSU is entitled to judgment as a matter of...
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