Neal v. Treglia , 2019 Ohio 3609 ( 2019 )

[Cite as Neal v. Treglia, 2019-Ohio-3609.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
JACK L. NEAL,
PLAINTIFF-APPELLANT, CASE NO. 1-18-70
v.
MATTHEW B. TREGLIA, SHERIFF, OPINION
ET AL.,
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court
Trial Court No. CV 2017 0404
Judgment Affirmed
Date of Decision: September 9, 2019
APPEARANCES:
William J. O’Malley for Appellant
Angelica M. Jarmusz for Appellee, Matthew B. Treglia
Case No. 1-18-70
ZIMMERMAN, P.J.
{¶1} Plaintiff-appellant, Jack L. Neal (“Neal”), appeals the November 28,
2018 judgment entry of the Allen County Court of Common Pleas dismissing his
complaint against defendant-appellee, Matthew B. Treglia (“Treglia”), Allen
County Sheriff, and Dean McCombs (“McCombs”), special deputy for the Allen
County Sheriff’s Office (“ACSO”) and Lima Memorial Hospital’s (“LMH”)
security supervisor. For the reasons that follow, we affirm.
{¶2} This case stems from the March 20, 2017 termination of Neal’s special-
deputy appointment from the ACSO. Neal was appointed as a special deputy for
the ACSO in 1987, where he volunteered with the Allen County Sheriff’s Office’s
Mounted Posse Unit (“ACSOMPU”).
{¶3} Under an agreement between the ACSO and LMH, the ACSO provided
special deputies to serve as security officers at LMH’s facility. Pertinent to the
appeal, under that agreement Neal was employed at LMH as a security officer.
However, on March 20, 2018, Treglia terminated Neal’s special-deputy
appointment (by letter) after Treglia discovered that Neal had violated an ACSO’s
policy relating to his appointment. After terminating Neal’s appointment, Treglia
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sent notice to Neal’s security supervisor at LMH (McCombs).1 Neal was terminated
later from his employment at LMH on March 23, 2017.
{¶4} On July 10, 2017, Neal filed a complaint in the trial court against
Treglia and McCombs, in their personal and professional capacities.2 (Doc No. 1).
Neal’s complaint alleged claims for tortious interference with a business
relationship and for deprivation of his rights under 42 U.S.C. 1983 (the “1983
claim”) against both Treglia and McCombs. (Id.) Neal alleged an additional claim
against McCombs for defamation. (Id.)
{¶5} Treglia filed an answer on August 10, 2017. (Doc. No. 4). On
September 13, 2017, McCombs filed an answer, a cross-claim against Treglia, and
a third-party complaint against the Allen County Board of Commissioners
(“Commissioners”), Allen County Prosecutor, Juergen A. Waldick (“Waldick”),
and the County Risk Sharing Authority (“CORSA”). (Doc. Nos. 8, 9).
{¶6} On September 29, 2017, CORSA filed an answer and counterclaim
against McCombs. (Doc. No. 14). Treglia filed an answer on October 10, 2017 to
McCombs’s cross-claim, and the Commissioners and Waldick filed their answer to
1
The notice of Neal’s special-deputy appointment termination was copied to five individuals, including
McCombs. (See McCombs Depo. at 81, Pl. Neal Ex. 2); (Neal Depo. at 23-25, 28-29, 32-33, Pl. Neal Ex.
2); (Treglia Depo. at 21, Pl. Neal’s Ex. 3); (Doc. Nos. 35, 36, 37). Three of the five recipients of the notice
are employed by the ACSO and are in supervisory roles over special deputies; two recipients of the notice
are special deputies who had direct supervisory contact with Neal either through ACSOMPU or LMH
(McCombs). Of those recipients, McCombs was the only recipient in privity with LMH.
2
McCombs also serves as a special deputy for the ACSO, LMH’s security manager, and was Neal’s
immediate supervisor.
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McCombs’s third-party complaint. (Doc. Nos. 15, 16). McCombs filed an answer
to CORSA’s counterclaim on October 19, 2017. (Doc. No. 17).
{¶7} On May 11, 2018, CORSA filed a motion for summary judgment as to
McCombs’s third-party complaint. (Doc. No. 39). McCombs filed a memorandum
in opposition to CORSA’s motion for summary judgment on June 4, 2018. (Doc.
No. 48). CORSA filed a response to McCombs’s memorandum in opposition to its
motion for summary judgment on June 18, 2018. (Doc. No. 50). On June 26, 2018,
the trial court denied CORSA’s motion for summary judgment. (Doc. No. 53).
CORSA, then, filed a motion for reconsideration of the order denying summary
judgment on July 26, 2018. (Doc. No. 62). McCombs filed a memorandum in
opposition to CORSA’s reply motion for reconsideration. (Doc. Nos. 63, 64, 65).
The trial court on August 28, 2018 denied CORSA’s motion for reconsideration.
(Doc. No. 66).
{¶8} McCombs filed a motion for summary judgment as to Neal’s 1983,
tortious-interference-with-a-business-relationship, and defamation claims. (Doc.
No. 44). On May 14, 2018, the Commissioners, Treglia, and Waldick filed a motion
for summary judgment as to Neal’s claims and McCombs’s cross-claims. (Doc. No.
45). On June 5, 2018, McCombs filed a memorandum in opposition to the
summary-judgment motion filed by the Commissioners, Treglia, and Waldick.
(Doc. No. 49). On June 19, 2018, the Commissioners, Treglia, and Waldick filed
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their response to McCombs’s memorandum in opposition to their motion for
summary judgment. (Doc. No. 52). Neal filed a memorandum in opposition to
Treglia’s and McCombs’s motion for summary judgment on June 28, 2018. (Doc.
No. 54). McCombs and Treglia filed their responses on July 11, 2018 to Neal’s
memorandum in opposition to their motions for summary judgment. (Doc. Nos. 56,
57). On July 17, 2018, the trial court granted summary judgment in favor of
McCombs as to Neal’s 1983 claim, but denied McCombs’s motion for summary
judgment as to Neal’s defamation and tortious-interference-with-a-business-
relationship claims. (Doc. No. 58). The trial court also granted summary judgment
in favor of Treglia as to Neal’s 1983 and tortious-interference-with-a-business-
relationship claims. (Doc. No. 59). Further, the trial court granted summary
judgment as to McCombs’s cross-claims against the Commissioners, Treglia, and
Waldick. (Id.). On October 29, 2018, McCombs voluntarily dismissed his third-
party complaint against CORSA. (See Doc. No. 68). On November 28, 2018, Neal
and McCombs reached a settlement as to Neal’s remaining claims against
McCombs, and Neal dismissed his claims against McCombs. (Doc. No. 87).
{¶9} Neal filed his notice of appeal on December 19, 2018. (Doc. No. 88).
He raises two assignments of error for our review, which we will address together,
out of order.
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Assignment of Error No. II
The Trial Court erred when it granted Summary Judgment to
Defendant Treglia on the Plaintiff’s claim under 42 U.S.C. §1983.
Assignment of Error No. I
The Trial Court erred when it granted Summary Judgment to
Defendant Treglia on the Plaintiff’s claim of tortious interference
with a business relationship.
{¶10} In his assignments of error, Neal argues that the trial court erred by
granting summary judgment in favor of Treglia. Specifically, and as it relates to his
second assignment of error, Neal argues that there is a genuine issue of material fact
as to his 1983 claim regarding whether Neal has a property interest or protected-
liberty interest in his special-deputy appointment under the Due Process Clause as
applied through the Fourteenth Amendment. In his first assignment of error, Neal
argues that the trial court erred by granting summary judgment in favor of Treglia
as to his tortious-interference-with-a-business-relationship claim because there is a
genuine issue of material fact as to whether Neal and LMH had a business
relationship and whether Treglia intentionally interfered with that relationship by
notifying LMH of the termination of Neal’s special-deputy appointment.
Standard of Review
{¶11} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St. 3d 388, 390 (2000). “De novo review is independent and
without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist.
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Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S.
Bancorp, 195 Ohio App. 3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist.). Summary
judgment is proper where there is no genuine issue of material fact, the moving party
is entitled to judgment as a matter of law, and reasonable minds can reach but one
conclusion when viewing the evidence in favor of the non-moving party, and the
conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels
v. Dayton City School Dist. Bd. of Edn., 69 Ohio St. 3d 217, 219 (1994).
{¶12} “The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of material
fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing
Dresher v. Burt, 75 Ohio St. 3d 280, 292 (1996). “In doing so, the moving party is
not required to produce any affirmative evidence, but must identify those portions
of the record which affirmatively support his argument.” Id., citing Dresher at 292.
“The nonmoving party must then rebut with specific facts showing the existence of
a genuine triable issue; he may not rest on the mere allegations or denials of his
pleadings.” Id., citing Dresher at 292 and Civ.R. 56(E).
{¶13} Material facts are those facts “that might affect the outcome of the suit
under the governing law.” Turner v. Turner, 67 Ohio St. 3d 337, 340 (1993) citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986).
“Whether a genuine issue exists is answered by the following inquiry: Does the
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evidence present ‘a sufficient disagreement to require submission to a jury’ or is it
‘so one-sided that one party must prevail as a matter of law[?]’” Id., citing Anderson
at 251-252.
{¶14} Summary judgment should be granted with caution, resolving all
doubts in favor of the nonmoving party. Perez v. Scripts-Howard Broadcasting Co.,
35 Ohio St. 3d 215, 217 (1988). “The purpose of summary judgment is not to try
issues of fact, but is rather to determine whether triable issues of fact exist.” Lakota
Loc. Schools Dist. Bd. of Edn. v. Brickner, 108 Ohio App. 3d 637, 643 (6th
Dist.1996). In ruling on a motion for summary judgment, a court is not permitted
to weigh evidence or chose among reasonable inferences; rather, the court must
evaluate evidence, taking all permissible inferences and resolving questions of
credibility in favor of the nonmoving party. Buck v. Melco., Inc., 3d Dist. Paulding
No. 11-09-06, 2009-Ohio-6872, ¶ 10, citing Jacobs v. Racevskis, 105 Ohio App. 3d
1, 7 (2d Dist.1995).
The 1983 Claim
{¶15} First, we address Neal’s argument that the trial court improperly
granted summary judgment in favor of Treglia as to Neal’s claims under 42 U.S.C.
1983. Neal argues that there is a genuine issue of material fact that he had a property
interest in his special-deputy appointment. Further, Neal argues that there is a
genuine issue of material fact that he was deprived of a constitutionally protected
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liberty interest in his special-deputy appointment. Specifically, he contends that his
reputation was damaged, and that he was “stigmatized” from his chosen profession,
when Treglia notified LMH of the termination of Neal’s special-deputy
appointment. We disagree.
{¶16} The Due Process Clause of the Fourteenth Amendment to the United
States Constitution provides that a state shall not “deprive any person of life, liberty,
or property without due process of law.” 42 U.S.C. 1983 provides a remedy to
individuals when their federal rights have been violated by governmental officials.
Shirokey v. Marth, 63 Ohio St. 3d 113, 116 (1992), citing Monroe v. Pape, 365 U.S.
167, 81 S. Ct. 473 (1961), overruled on other grounds, Monnell v. Dept. of Social
Serv. of City of New York, 436 U.S. 658, 98 S. Ct. 2018 (1978). 42 U.S.C. 1983
provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State * * *, subjects, or causes to be
subjected, any citizen of the United States * * * to the deprivation of
any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
See 1946 St. Clair Corp. v. Cleveland, 49 Ohio St. 3d 33, 34 (1990), citing Parratt
v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908 (1981), overruled on other grounds,
Daniels v. Williams, 474 U.S. 327, 330, 106 S. Ct. 662 (1986). “‘Section 1983 does
not itself create any constitutional rights; it creates a right of action for the
vindication of constitutional guarantees found elsewhere.’” Shirokey at 116,
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quoting Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir.1990). 42 U.S.C. 1983
is limited to deprivations of federal-statutory and constitutional rights and does not
cover conduct that would amount only to a violation of state law. Id., citing Huron
Valley Hosp., Inc. v. City of Pontiac, 887 F.2d 710, 714 (6th Cir.1989), citing Baker
v. McCollan, 443 U.S. 137, 146, 99 S. Ct. 2689 (1979). See also Town of Castle
Rock, Colorado v. Gonzales, 545 U.S. 748, 756, 125 S. Ct. 2796 (2005), quoting
Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9, 98 S. Ct. 1554 (1978),
quoting Bd. Of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701,
2702 (1972) and citing United States ex rel. TVA v. Powelson, 319 U.S. 266, 279,
63 S. Ct. 1047 (1943).
A two-step analysis is used when considering a claim that due process
rights were violated. First, a court must determine whether the
claimant has a right or interest that is entitled to due process
protection. Second, if the claimant was deprived of such a right or
interest, the court must determine what process is due.
McDonald v. Dayton, 146 Ohio App. 3d 598, 2001-Ohio-1825, ¶ 20 (2d Dist.), citing
Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487 (1985).
{¶17} Since Neal does not raise a substantive-due-process violation, we
address only whether he was entitled to procedural-due process as to his claimed
property interest. The procedural component of the Due Process Clause does not
protect everything that may be considered as a benefit; rather, “an individual must
have more than ‘an abstract need or desire for it’ or a ‘unilateral expectation if it.’
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He must, instead, ‘have a legitimate claim of entitlement to it.’” State ex rel.
Trimble v. State Bd. of Cosmetology, 50 Ohio St. 2d 283, 285 (1977), quoting Roth
at 577. “To establish a procedural due process violation, it must be shown that the
conduct complained of deprived the plaintiff of a liberty or property interest without
adequate procedural safeguards.” Roe v. Franklin Cty., 109 Ohio App. 3d 772, 779
(10th Dist.1996), citing Roth at 569.
{¶18} “Such entitlements are * * * ‘“not created by the Constitution. Rather,
they are created and their dimensions are defined by existing rules or understandings
that stem from an independent source such as state law.”’” Town of Castle Rock,
545 U.S. at 756, quoting Paul v. Davis, 424 U.S. 693, 709, 96 S. Ct. 1155 (1976),
quoting Roth at 577. See also Phillips v. Washington Legal Found., 524 U.S. 156,
164, 118 S. Ct. 1925 (1998). “‘[T]he determination of the existence of a property
right protected by due process is controlled by the statute creating and defining that
right [or benefit].’” Rodefer v. McCarthy, 2d Dist. Darke No. 2015-CA-1, 2015-
Ohio-3052, ¶ 51, quoting Hamby v. Neel, 368 F.3d 549, 558 (6th Cir.2004).
{¶19} Regarding the appeal before us, Ohio law does not provide for the
appointment of a “special deputy sheriff”—only a “deputy sheriff” under R.C.
311.04.3 Thus, “deputy sheriffs” derive their authority from the sheriff under R.C.
311.04. However, “reserve deput[ies]” existed under the common law and have
3
There is only one place in the Ohio Revised Code in which the term “special deputy sheriff” appears and it
is under R.C. 3599.38, which is titled “Illegally Influencing Voters While Performing Election Duties.”
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previously been recognized within Ohio law. See State v. Glenn, 11th Dist. Portage
No. 1286, 1985 WL 7797, *5 (Feb. 5, 1985), citing 1965 Ohio Atty.Gen.Ops. No.
65-177, 1968 Ohio Atty.Gen.Ops. No. 68-112, 1977 Ohio Atty.Gen.Ops. No. 77-
027, and State ex rel. v. Geyer v. Griffin, 80 Ohio App. 447, 453 (3d Dist.1946).
Moreover, under Ohio law a “special deputy sheriff” is analogous to a “reserve
deputy.” Id.
[T]he primary distinction between a “reserve” deputy and a “regular”
deputy is that a “regular” deputy is generally considered a full-time,
compensable, county employee who also receives all the emoluments
of available fringe benefits. By contrast, a “reserve” deputy is
essentially a volunteer for limited service sheriff assignments.
Additionally, under Ohio common law, “reserve” or “special”
deputies could be hired by private entities to provide police protection
for special events or circumstances. The designations “reserve” and
“special” deputies are used synonymously in Ohio. Reserve deputies
often assume the same responsibilities and are required to complete
the same extensive training course.
Id., citing State ex rel. Geyer at 453, R.C. 109.71, and Ohio Adm. Code 109:2 et
seq.
{¶20} In the case before us, Neal was not considered a full-time,
compensable, ACSO employee (“regular deputy”) who was receiving all the
emoluments of available fringe benefits. Compare id., citing State ex rel. Geyer at
453, R.C. 109.71, and Ohio Adm. Code 109:2 et seq. Rather, the record reflects
that Neal was a volunteer for limited-service-sheriff assignments. (Neal Depo. at 8,
81); (Doc. No. 37). Compare State ex rel. Geyer at 453 (comparing regular deputies
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and special deputies and distinguishing special deputies on the basis that they are
volunteers hired for limited-service-sheriff assignments).
{¶21} Generally, volunteers do not have property interests in their positions,
and thus are not afforded a constitutional right to procedural due process. See
Versarge v. Township of Clinton, 984 F.2d 1359, 1370 (3d Cir.1993) (concluding
that a volunteer firefighter did not have a due process right to hearing on
termination); Hyland v. Wonder, 117 F.3d 405, 412 (9th Cir.1997) (concluding that
the plaintiff “fail[ed] to state a due process claim because he lacked a property
interest in his position as a volunteer”); Hale v. Bexar County, Tex., 5th Cir. No. 08-
50820, 2009 WL 2222833, *6 (July 27, 2009) (concluding that “there is no
constitutionally cognizable interest in a volunteer position”), citing Versarge at
1370. Accordingly, because Neal is a volunteer with the ACSO in his capacity as a
special deputy for limited-service-sheriff assignments, he does not have a protected-
property interest in that position. See Brice v. Oregon, 111 Ohio App. 3d 7, 12 (6th
Dist.1996) (concluding that a former, voluntary firefighter failed to establish a
constitutionally protected property interest in his position); Miller v. Watson, D.Or.
No. 3:18-cv-00562-SB, 2019 WL 1871011, *17 (Feb. 12, 2019) (concluding that no
liberty or property interest existed to support a due process claim for a volunteer
reserve officer). See also Cleveland Constr., Inc. v. Cincinnati, 118 Ohio St. 3d 283,
2008-Ohio-2337, ¶ 6 (concluding that if a government official may grant or deny
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the benefit in their discretion, the benefit is not a protected entitlement); Town of
Castle Rock, Colo., 545 U.S. at 756, citing Kentucky Dept. of Corrs. v. Thompson,
490 U.S. 454, 462-463, 109 S. Ct. 1904 (1989).
{¶22} Therefore, there is no genuine issue as to a material fact that Neal has
a property-interest claim, which would entitle him to procedural due process.
{¶23} Next, we turn to address Neal’s argument that there is a genuine issue
of material fact that he has a protected-liberty interest in his reputation under his
1983 claim.
While [the Supreme Court of the United States] has not attempted to
define with exactness the liberty * * * guaranteed [by the Fourteenth
Amendment], the term has received much consideration and some of
the included things have been definitely stated. Without doubt, it
denotes not merely freedom from bodily restraint but also the right of
the individual * * * to engage in any of the common occupations of
life * * * according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized * * * as essential
to the orderly pursuit of happiness by free men.
(Emphasis added.) Roth, 408 U.S. at 572, quoting Meyer v. Nebraska, 262 U.S.
390, 399, 43 S. Ct. 625 (1923).
{¶24} To constitute the deprivation of a liberty interest when the injury
occurs in connection with an employee’s termination, there must be an injury to a
person’s reputation, good name, honor, or integrity. State ex rel. Kilburn v. Guard,
5 Ohio St. 3d 21, 23 (1983). See also Roth at 573; Chilingirian v. Boris, 882 F.2d
200, 205 (6th Cir.1989).
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{¶25} In order to establish a violation of a liberty interest in his reputation,
actionable under a 1983 claim, Neal must show a stigma to his reputation, plus some
attendant infringement of a protected right or interest or that a status recognized by
Ohio law that has been altered. See Long v. Dennerll, 6th Dist. Wood No. WD-99-
024, 2000 WL 678817, *3 (May 26, 2000). This is otherwise known as a “stigma-
plus claim.” Id.
Quinn identified several factors that a plaintiff must show in order to
establish that he was deprived of a liberty interest and entitled to a
name-clearing hearing with respect to termination from employment:
1) the stigmatizing statements must be made in conjunction with the
plaintiff’s termination from employment; a plaintiff is not deprived of
his liberty interest when the employer has alleged merely improper or
inadequate performance, incompetence, neglect of duty or
malfeasance; 2) the stigmatizing statements or charges must be made
public; 3) the plaintiff must claim that the charges made against him
were false; and 4) the public dissemination of the information must
have been voluntary. If these elements have been established, the
plaintiff is entitled to a name-clearing hearing if he requests one.
Hemphill v. Dayton, 2d Dist. Montgomery No. 23782, 2011-Ohio-1613, ¶ 101,
citing Quinn v. Shirey, 293 F.3d 315, 320 (6th Cir.2002), citing Brown v. City of
Niota, 214 F.3d 718, 722-723 (6th Cir.2000). See also Siegert v. Gilley, 500 U.S.
226, 231, 111 S. Ct. 1789 (1991), overruled in part on other grounds, Pearson v.
Callahan, 550 U.S. 223, 129 S. Ct. 808 (2009); Chilingirian at 205-206; Lake
Michigan College Fed’n of Teachers v. Lake Michigan Community College, 518
F.2d 1091, 1096-1097 (6th Cir.1975). “‘A charge that merely makes a plaintiff less
attractive to other employers but leaves open a definite range of opportunity does
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not constitute a liberty deprivation.’” Dennerll at *6, quoting Chilingirian at 205-
206, fn. 8.
{¶26} Here, Neal asserts that there is a genuine issue of material fact that his
reputation was injured, resulting in the loss of future employment. That is, Neal
argues that there is a genuine issue of material fact that he lost his employment (with
LMH) and was stigmatized and damaged in his chosen profession by the notice sent
by Treglia to LMH informing it of the termination of Neal’s special-deputy
appointment because it was based on “untrue” content. (Appellant’s Brief at 21).
Assuming, without deciding, that Neal is an ACSO employee for the purpose of
addressing his liberty-interest claim (notwithstanding our conclusion he is an ACSO
volunteer for limited-service-sheriff assignments for the property-interest claim),
there is no genuine issue of material fact that Neal’s reputation was not injured by
the notice reflecting the termination of his special-deputy appointment, foreclosing
him from future employment opportunities. See Meyers v. Village of Oxford, 739
Fed.Appx. 336, 340 (6th Cir.2018), citing Mertik v. Blalock, 983 F.2d 1353, 1358
(6th Cir.1993) (concluding that a non-governmental employee, an independent
contractor, who held staff privileges at a city-owned ice rink, had a liberty interest
in his reputation on the basis that there was a “mutually beneficial business
relationship in which the governmental benefit, the right to use the city’s rink,
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played an integral role”). Specifically, the record contains no evidence reflecting
that the notice Treglia sent to McCombs resulted in Neal’s termination from LMH.
{¶27} Moreover, Neal failed to present any evidence to the trial court, as he
is required to do by Civ.R. 56, reflecting that he has been foreclosed from any
opportunities in his chosen profession after LMH terminated his employment. See
Carnes, 2011-Ohio-4467, at ¶ 13, citing Dresher, 75 Ohio St. 3d at 292-293 (1996),
and Civ.R. 56(E). Indeed, in his affidavit in support of his memorandum in
opposition to Treglia’s motion for summary judgment, Neal extinguished any
genuine issue of material fact that he was terminated from his position as a security
guard with LMH based on the notice when he asserted that “[t]he only reason my
employment at LMH ended was because Sheriff Treglia pulled my special deputy
commission, and being a commissioned law enforcement officer is a requirement
for a Security Officer at Lima Memorial Hospital.” (Doc. No. 54).
{¶28} Further, Neal’s memorandum in opposition fails to establish any
genuine issue of material fact that he lost any other employment or was stigmatized
and damaged because of the notice. In our review of the record, Neal failed to
demonstrate that he was turned down for employment in the law-enforcement field
or hospital-security field based on the special-deputy-appointment-termination
letter. Rather all that is revealed is that, Neal was “too ashamed to apply” for
employment. (Neal Depo. at 11); (Doc. No. 37). Ohio law contemplates something
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more than a subjective perception of lost opportunities based on termination from
employment, but rather, “a clear, immediate, and substantial impact” on Neal’s
reputation, which “effectively destroyed” his ability to work in law enforcement and
related fields. State ex rel. Trimble, 50 Ohio St. 2d at 287, citing Tichon v. Harder,
438 F.2d 1396, 1402 (2d Cir.1971) (concluding that “[a]lthough every dismissal for
reasons other than reduction in the work force can be said to have some impact on
future employability * * * in the absence of a clear, immediate and substantial
impact on the employee’s reputation which effectively destroys his ability to engage
in his occupation, it cannot be said that a right of personal liberty is involved”).
Thus, because Neal failed to establish a genuine issue of material fact that he was
terminated from his employment with LMH, or was stigmatized and damaged from
his chosen profession by the notice sent by Treglia reflecting the termination of his
special-deputy appointment, Neal failed to establish a prima-facie case that he was
entitled to a name-clearing hearing. See Hemphill, 2011-Ohio-1613, at 105.
{¶29} Therefore, there is no genuine issue of material fact that Neal was
terminated from his employment with LMH, or stigmatized and damaged from his
chosen profession, and thus, denied a constitutionally protected liberty interest.
{¶30} For these reasons, the trial court properly granted summary judgment
in favor of Treglia as to Neal’s 1983 claims.
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Tortious Interference with a Business Relationship
{¶31} Next, we address Neal’s argument that the trial court improperly
granted summary judgment in favor of Treglia as to Neal’s tortious-interference-
with-a-business-relationship claim. The elements of tortious inference with a
business relationship are: “(1) the existence of a prospective business relationship;
(2) the wrongdoer’s knowledge thereof; (3) an intentional interference causing a
breach or termination of the relationship; and (4) damages resulting therefrom.”
Gentile v. Turkoly, 7th Dist. Mahoning No. 16 MA 0071, 2017-Ohio-1018, ¶ 23,
citing First-Knox Natl. Bank v. MSD Properties, Ltd., 5th Dist. Knox No. 15CA6,
2015-Ohio-4574, ¶ 19 (5th Dist.).
{¶32} In this case, to prove tortious interference with a business relationship,
Neal must establish that: (1) a prospective business relationship existed between
Neal and LMH; (2) Treglia had knowledge of that business relationship; (3) Treglia
intentionally interfered with the relationship and that interference caused LMH to
terminate its relationship with Neal; and (4) Neal was damaged as a result of that
termination. See Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distrib. Co.,
Inc., 148 Ohio App. 3d 596, 2002-Ohio-3932, ¶ 23 (3d Dist.), citing Geo-Pro Serv.,
Inc. v. Solar Testing Laboratories, Inc., 145 Ohio App. 3d 514, 525 (10th Dist.2001).
See also McNett v. Worthington, 3d Dist. Van Wert No. 15-11-05, 2011-Ohio-5225,
¶ 18, citing Lennon v. Cuyahoga Cty. Juvenile Court, 8th Dist. Cuyahoga No.
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Case No. 1-18-70
86651, 2006-Ohio-2587, ¶ 19, citing Costaras v. Dunnerstick, 9th Dist. Lorain No.
04CA008453, 2004-Ohio-6266, ¶ 8.
{¶33} Because it is dispositive here, we need only address whether Treglia
intentionally interfered with any relationship between Neal and LMH. In Ohio,
special deputies serve at the pleasure of the sheriff. See State ex rel. Geyer, 80 Ohio
App. at 455; State v. Morris, 1st Dist. Hamilton No. C-77716, 1978 WL 216570, *3
(July 26, 1978) (concluding that the “appointment of all deputies expires when the
appointing Sheriff leaves office at the expiration of his term, because they are
personal appointments extending only at the pleasure of and during the incumbency
of the Sheriff”), citing Geyer at 447. As such, Treglia was free to terminate Neal’s
special-deputy appointment at any point and for any reason not contrary to law. Id.;
Id. Indeed, as a special deputy with the ACSO, Treglia was Neal’s appointing
authority and his highest-level supervisor.
{¶34} Moreover, based upon our determination that Neal had no protected-
property interest in his special-deputy appointment and our determination that Neal
was not terminated as a result of the notice, Neal has not established that there is a
genuine issue of material fact that Treglia intentionally interfered with any business
relationship between Neal and LMH. That is, there is no genuine issue of material
fact that the notice caused LMH to terminate its relationship with Neal. See Semco,
Inc. v. Sims Bros., Inc. 3d Dist. Marion No. 9-12-13, 2013-Ohio-4109 ¶ 21, citing
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Case No. 1-18-70
Hall v. Fairmont Homes, Inc., 105 Ohio App. 3d 424, 436 (4th Dist.1995)
(“Affidavits based on hearsay evidence are not admissible for the purposes of
summary judgment”), citing Pond v. Carey Corp., 34 Ohio App. 3d 109, 111 (10th
Dist.1986); Pennisten v. Noel, 4th Dist. Pike No. 01CA669, 2002 WL 254021, *2
(Feb. 8, 2002). Therefore, there is no genuine issue of material fact that Treglia
intentionally interfered with Neal’s business relationship with LMH.
{¶35} More specifically, Treglia terminated Neal’s special-deputy
appointment by letter on March 20, 2018. The loss of the special-deputy
appointment rendered Neal unqualified for the security position at LMH.
Accordingly, we conclude that there is no genuine issue of material fact that Treglia
tortuously interfered with any business relationship between Neal and LMH. Thus,
the trial court properly granted summary judgment in favor of Treglia as to Neal’s
tortious-interference-with-a-business-relationship claim.
{¶36} Accordingly, Neal’s assignments of error are overruled.
{¶37} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW AND PRESTON, J.J., concur.
/jlr
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