{¶ 109} I respectfully dissent from that portion of the majority opinion concerning the issues of actual malice and punitive damages.
{¶ 110} While I generally agree with the case law cited by the majority, I would note that this case involves the reporting of a third party's allegations, to wit: Ms. Zacharias. When hearsay allegations are involved, "recklessness may be found where there are obvious reasons todoubt the veracity of the informant or the accuracy of his [or her]reports." (Emphasis added.) St. Amant v. Thompson (1968), 390 U.S. 727,732.
{¶ 111} In their answer brief, appellees insist that the testimony of Mr. Scheibel, the vice-president and general manager of the specialty tape division, provided clear and convincing evidence that appellants had doubts about the truthfulness of Ms. Zacharias' claims against Mr. Blatnik. However, a close review of Mr. Scheibel's testimony reveals otherwise.
{¶ 112} During the trial, Mr. Scheibel, along with Mr. Szmagala, division counsel for Avery Dennison, repeatedly stated they believed that the company's statements made at the 1998 communication meetings were true. Moreover, Mr. Scheibel and Mr. Szmagala never stated that, at thetime the company statements were made, they entertained serious doubts as to the truth of the published statements.
{¶ 113} Rather, Mr. Scheibel explained that the veracity of the claims against Mr. Blatnik arguably might have been questioned initially because a number of interviewed coworkers had stated they did not personally observe Mr. Blatnik sexually harass Ms. Zacharias. He further stated that two coworkers considered Ms. Zacharias to be a liar. Out of context, the failure to consider such facts might be enough to prove that appellants acted with actual malice. In context, it was readily apparent that those facts were only part of the total body of evidence available to Mr. Scheibel at the time the statements were finally made by the company.
{¶ 114} Hence, Mr. Scheibel admittedly may have had concerns in the beginning days of the investigation. However, some early doubts as to the possible falsity of the claims against Mr. Blatnik were insufficient to meet the standard of clear and convincing evidence. Varanese v. Gall (1988), 35 Ohio St. 3d 78, 82, *Page 515 518 N.E.2d 1177. Rather, the focus of the jury's evaluation should have been whether, at the time of the published statements, appellants hada high degree of awareness of the probable falsity of the publishedstatements. Id. at 80.
{¶ 115} Appellees, along with the majority, make much of the fact that Avery Dennison reversed its position as to whether Mr. Blatnik sexually harassed Ms. Zacharias. In 1994, Avery Dennison initially told the OCRC that it found "no evidence * * * involving behavior or comments of a sexual nature" directed at Ms. Zacharias. From this, the majority concludes that actual malice in the company's later actions exists:
{¶ 116} "The question is narrow and easily resolved: if anemployer admits on one day that there was no sexual harassment at theirplant, and on another day that there was, have they shown a recklessdisregard for the truth? By demonstrating this seemingly inconsistent behavior under oath, have appellees presented enough evidence to survive a directed verdict, judgment notwithstanding the verdict or a motion for a new trial? The answer is in the affirmative. The jury could haveconcluded that appellants acted with actual malice from the fact thatthey previously admitted to the OCRC that there was no evidence that Mr.Blatnik sexually harassed Ms. Zacharias, and that such knowledge may haveexisted at the time appellants made the communications at issue." (Emphasis added.)
{¶ 117} With all due respect to the majority, I simply disagree. The record definitively shows that there were actually two investigations undertaken by the company. The first investigation was conducted in response to the OCRC action. However, the bulk of the employee interviews, including Ms. Zacharias' deposition, were not taken untilafter Ms. Zacharias brought suit against Avery Dennison in January 1997.
{¶ 118} At most, appellants may have acted negligently when they issued their position statement to the OCRC indicating that they found no evidence of sexual harassment. The conclusion to be drawn from that initial statement was simply that appellants failed to thoroughly investigate Ms. Zacharias' OCRC allegations. The fact that Avery Dennison subsequently did a better job of investigating and, as a result, changed its position and conclusion, does not, in any way, rise to the level of actual malice as the majority suggests. See Scott v. News-Herald (1986),25 Ohio St. 3d 243, 248, quoting Dupler v. Mansfield Journal (1980),64 Ohio St. 2d 116, 119 (holding that "`[s]ince reckless disregard is not measured by lack of reasonable belief or of ordinary care, even evidence of negligence in failing to investigate the facts is insufficient to establish actual malice.'"). See, also, Harte-Hanks Comm., Inc. v.Connaughton (1989), 491 U.S. 657, 688; 109 S. Ct. 2678, 105 L. Ed. 2d 562; *Page 516 Kassouf v. Cleveland Magazine City Magazines, Inc. (2001),142 Ohio App. 3d 413, 423 (holding that "[e]ven evidence of negligence in failing to investigate the facts is insufficient to establish actual malice").
{¶ 119} The evidence was uncontroverted that, in 1997 after Ms. Zacharias filed her suit against Avery Dennison, and prior to publishing the statements made at the 1998 communication meetings, Avery Dennison consulted its legal counsel, conducted numerous additional employee interviews, and deposed Ms. Zacharias. At the completion of its investigation, Avery Dennison was aware there were conflicting stories, and that the majority of employees did not observe any sexual harassment. Nevertheless, a few employees stated that Mr. Blatnik used abusive and derogatory sexual language towards Ms. Zacharias, and that she had confided in them that Mr. Blatnik was sexually harassing her. In fact, Mr. Szmagala acknowledged this on cross-examination:
{¶ 120} "A. * * * I weighed the credibility of individuals and thetestimony [interviews conducted with Avery Dennison employees], youknow, you have to make a judgment call, I mean the fact is that someone'snot telling the truth and so you really have to use your best judgment todetermine what happened and that's what I did.
{¶ 121} "Q. And you testified that in using your best judgment I think you say everything, you said three or four times you had no doubt whatsoever, no doubt as to the truthfulness of all of her [Ms. Zacharias] allegations with the exception of these two you mentioned; is that correct?
{¶ 122} "A. That's correct.
{¶ 123} "Q. So that all of these different individuals who said they saw nothing who worked in the same place who testified the way they did or gave statements the way they did
{¶ 124} "A. Well
{¶ 125} "Q. just a moment, let me finish the question.
{¶ 126} "A. Sure, I apologize.
{¶ 127} "Q. All of these other individuals including Patty Naumann you took those into account and then concluded you had no doubt?
{¶ 128} "A. That's right, when I took individuals into account Iconsidered where they worked, whether they were in finishing, behind thewall, whether they were able to be exposed to the day-to-day activitiesof the interaction of Mr. Blatnik and Ms. Zacharias, whether they were inthe headquarters building, the fact of the matter is that when I came onthe scene in December of `97 I had every interest of getting to thebottom of this and looked at as much as I could to *Page 517 determine what our liability to Ms. Zacharias was and weighed thecredibility and the testimony of all the witnesses." (Emphasis added.)
{¶ 129} At best, this evidence merely shows that appellants knew the evidence as to the truth of the allegations against Mr. Blatnik was not clear cut. This awareness by appellants that they would have to make a choice as to who to believe, however, is not fatal. This is because appellees had to demonstrate by clear and convincing evidence that the published statements were made with "a high degree of awareness of itsprobable falsity." (Emphasis added.) Varanese at 80. Doubts as topossible falsity are immaterial. Id. at 82.
{¶ 130} Moreover, Avery Dennison's 1994 position statement to the OCRC is not the only evidence which had to be considered in proving actual malice because "[a]ctual malice is to be measured as of the timeof publication[,]" which in this case occurred in 1998. (Emphasis added.)Varanese at 80.
{¶ 131} In summation, there was absolutely no evidence of convincing clarity presented by appellees which demonstrated that, at the time the statements were made, appellants acted with any degree of malice, much less actual malice. As such, the trial court erred in denying appellants' motions for a directed verdict, judgment notwithstanding the verdict, and/or a new trial as to this point.
{¶ 132} As for appellees' prayer for punitive damages, they failed to present any evidence tending to show that appellants' conduct was motivated by hatred, ill will, revenge, or a conscious disregard for Mr. Blatnik's rights. To the contrary, despite their initial position, appellants ultimately conducted a thorough investigation. Mr. Scheibel was aware that he would have to make credibility assessments because of the conflicting stories as to whether Mr. Blatnik sexually harassed Ms. Zacharias. As illustrated through his testimony, Mr. Scheibel set out the basis on which he made those assessments. He, along with Mr. Szmagala, unequivocally stated that the purpose of making the statements was to ensure that the employees understood the company's sexual harassment policy and to show that such conduct would not be tolerated.
{¶ 133} What is most compelling is the fact that appellees failed to rebut this final assertion during trial. The record indicates that appellees presented no other evidence as to any malicious motive or contrary reason for appellants' conduct.
{¶ 134} Further, it is also clear that appellees' punitive damages and loss of consortium claims were derivative in nature. Because appellees did not have a primary claim for relief appellees' derivative claims must also fail. See, e.g., Bowen v. Kil-Kare, Inc. (1992),63 Ohio St. 3d 84, 92-93, 585 N.E.2d 384. *Page 518
{¶ 135} Based on the foregoing reasons, I believe that the jury verdict should be reversed, and judgment should be entered in favor of appellants as to all issues.