Young v. Gannett Satellite Info. Network, Inc.

• Decision Date: 30 November 2011
• Docket Number: Case No. 1:10cv483.
• Citation: 837 F.Supp.2d 758,40 Media L. Rep. 1197
• Parties: James D. YOUNG, Plaintiff, v. GANNETT SATELLITE INFORMATION NETWORK, INC., Defendant.
• Court: U.S. District Court — Southern District of Ohio

837 F.Supp.2d 758

40 Media L. Rep. 1197

James D. YOUNG, Plaintiff,

v.GANNETT SATELLITE INFORMATION NETWORK, INC., Defendant.

Case No. 1:10cv483.

United States District Court,

S.D. Ohio,

Western Division.

Nov. 30, 2011.

Stephen E. Imm, Katz Greenberger & Norton, Cincinnati, OH, for Plaintiff.

John Charles Greiner, Steven Paul Goodin, Graydon Head & Ritchey, Cincinnati, OH, for Defendant.

OPINION & ORDER

MICHAEL R. BARRETT, District Judge.

This matter is before the Court upon Defendant's Motion for Summary Judgment (Doc. 10), Plaintiff's Response in Opposition (Doc. 14), and Defendant's Reply (Doc. 17).

I. BACKGROUND

Plaintiff James Young brings a claim of defamation against Defendant Gannett Satellite Information Network, Inc. (“Gannett”).

On May 26, 2010, a Gannett paper, the Milford–Miami Advertiser, published a story about a City of Milford police officer who had been having sex with the mayor while the officer was on duty. (Doc. 9, Herron Dep., Ex. 2.) The article explained that the officer, Russell Kenney, only received a fifteen-day suspension, even though the police chief recommended termination. ( Id.) The article included a quote from the police chief: “We were hoping this would go a little differently, but we had to go on what we've done in the past ...” The article continued:

Law Director Mike Minnlear said it was better for the city to suspend Kenney than to go through the process of having an arbitrator.

In 1997, the Miami Township trustees terminated Sgt. James Young for a variety of charges including conduct unbecoming of a police officer, sexual harassment, immoral behavior, neglect of duty and gross misconduct. Young had sex with a woman while on the job.

Young sued saying the trustees violated the collective bargaining contract between the township and the police union. An arbitrator agreed the Young, but the township fought the decision. Clermont County Court of Common Pleas Judge Robert Ringland ruled: “While this Court is not indicating it agrees with the arbitrator or condones the conduct which has occurred,” based on other similar cases he could not set aside the arbitrator's decision. Young is a current employee with the Miami Township Police Department.

( Id.) Young maintains that the article is false because he did not have “sex with a woman while on the job.” Young explains that Marcey Phillips, who worked as a dispatcher for Miami Township, made an internal complaint accusing Young of sexually harassing her. (Doc. 8–1, at 17.) As part of the internal investigation into the complaint, Phillips took a polygraph test. ( Id.) During the testing, Phillips revealed that Young forced her to perform oral sex on him. ( Id.) Phillips claimed that Young ejaculated on her kitchen rug during the incident. (Doc. 8, James Young Dep. at 61.)

During the investigation, Young admitted to making certain sexual remarks about Phillips, but not directly to Phillips. (Doc. 8–1, at 17.) Young also told the investigator that he did on one or more occasions place his hands on Phillips, hug her and kiss her. ( Id.) However, Young told the investigator that he had never engaged in sexual conduct with Phillips. ( Id.)

A sample taken from Phillips' kitchen rug showed the presence of human semen. ( Id.) However, DNA testing later revealed that the semen on the rug did not belong to Young. (Herron Dep. at 252, 299, 328.)

The investigating officer concluded that “the complaint is found to be sustained based upon sufficient evidence that Sgt. Young violated criminal law and or Dept. Policy Rules or Regulations.” (Doc. 8–1, at 6.) Based on the investigation, the officer recommended to the Miami Township Board of Trustees that Young be discharged. (Doc. 8–1, at 3.) The evidence collected during the investigation was made part of a written report entitled “Professional Standards Investigation.” (Doc. 8–1.)

Young contested the recommendation that he be terminated under the collective bargaining agreement. (Doc. 8–1, at 9.) The arbitrator found that Phillips' allegation that Young forced her to perform oral sex was “not supported by the evidence.” (Doc. 8–2, at 114.) The arbitrator also found that the evidence and testimony created doubts as to whether the physical touching between Young and Phillips was “uninvited and unwanted or whether it represented flirtatious activity between consenting adults.” ( Id. at 115, 116–117.) However, the arbitrator did find that Phillips made inappropriate sexual remarks about Phillips. ( Id. at 118.) The arbitrator converted Young's termination to a suspension and ordered that Young be reinstated. ( Id. at 119.) Judge Ringland of the Clermont County Court of Common Pleas confirmed the arbitrator's award. (Doc. 8–2, at 180.)

Gannett explains that before publishing the story, Advertiser editor Theresa Herron reviewed the public record covering Phillips' accusations against Young. ¹ It is Gannett's position that even though these documents reveal that the rape charge could not be substantiated, there was evidence of a private relationship between two consenting adults. Gannett argues that on this basis, it is entitled to summary judgment on Young's defamation claim.

II. ANALYSISA. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a), as amended on December 1, 2010, provides that summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party has the burden of showing an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden of production, the non-moving party cannot rest on his pleadings, but must present significant probative evidence in support of his complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The mere existence of a scintilla of evidence to support the non-moving party's position will be insufficient; the evidence must be sufficient for a jury to reasonably find in favor of the nonmoving party. Id. at 252, 106 S.Ct. 2505.

B. Defamation under Ohio law

There is no dispute that Young's defamation claim is governed by Ohio law. To prove a claim of defamation under Ohio law:

First, there must be the assertion of a false statement of fact; second, that the false statement was defamatory; third, that the false defamatory statement was published by defendants; fourth, that the publication was the proximate cause of the injury to the plaintiff; and fifth, that the defendants acted with the requisite degree of fault.Celebrezze v. Dayton Newspapers, Inc., 41 Ohio App.3d 343, 535 N.E.2d 755, 759 (1988) (citing Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 413 N.E.2d 1187 (1980)).

The parties agree that as a police officer, Young is a public figure for purposes of his defamation claim. Accord Soke v. Plain Dealer, 69 Ohio St.3d 395, 632 N.E.2d 1282, 1284 (1994) (“The United States Supreme Court has repeatedly recognized that police officers are public officials.”). A public figure cannot recover for defamation unless the individual proves that the publication was made with actual malice. New York Times Company v. Sullivan, 376 U.S. 254, 279–280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Actual malice exists when the publisher makes the statement with knowledge of the statement's falsity or with reckless disregard of whether it was false or not. Id.

C. Fair Report Privilege

Gannett first argues that Ohio's statutory “fair report” privilege requires dismissal of Young's defamation claim. Gannett explains that the reference to Young in the Advertiser article is based largely upon a judicial decision, which in turn is based on the arbitrator's decision. Gannett argues that both decisions fall within the protection of the statute, along with the internal affairs report and related documents.²

Ohio's fair report statute provides that:

The publication of a fair and impartial report of the return of any indictment, the issuing of any warrant, the arrest of any person accused of crime, or the filing of any affidavit, pleading, or other document in any criminal or civil cause in any court of competent jurisdiction, or of a fair and impartial report of the contents thereof, is privileged, unless it is proved that the same was published maliciously, or that the defendant has refused or neglected to publish in the same manner in which the publication complained of appeared, a reasonable written explanation or contradiction thereof by the plaintiff, or that the publisher has refused, upon request of the plaintiff, to publish the subsequent determination of such suit or action.

Ohio Rev.Code § 2317.05. The privilege applies if the news report (1) deals with a matter of public concern; and (2) is a “fair and substantially accurate account” of the information contained in the police or other official government report. Dinkel v. Lincoln Publishing (Ohio), Inc., 93 Ohio App.3d 344, 638 N.E.2d 611, 613 (1994) (citing Haynik v. Zimlich, 30 Ohio Misc.2d 16, 508 N.E.2d 195, 198 (Ct. Com. Pleas 1986)). A court may conclude, as a matter of law, that the fair report privilege operates to relieve its proponent from liability for any alleged defamation. See Dinkel, 638 N.E.2d at 614.

The parties disagree as to whether the Advertiser article is a “substantially accurate” account of the public record. “A publication is substantially accurate if it conveys the essence of the official record to the ordinary reader, without misleading the reader by the inclusion of inaccurate extra-record information or the exclusion of relevant information in the record.” Oney v. Allen, 39 Ohio St.3d 103, 529 N.E.2d 471, 473 (1988) (citing 3 Restatement of the Law 2d, Torts (1965) 300–301, Section 611, Comment f; Mark v. Seattle Times, 96 Wash.2d 473, 493, 635 P.2d 1081, 1092 (...