[Cite as Kienow v. Cincinnati Children's Hosp. Med. Ctr.,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

GLORIA KIENOW, : APPEAL NO. C-140720 TRIAL NO. A-1403720 Plaintiff-Appellant, : O P I N I O N. vs. :

CINCINNATI CHILDREN’S : HOSPITAL MEDICAL CENTER, : and : MARY ANNE MORRIS,

Defendants-Appellees. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: October 23, 2015

Tobias, Torchia & Simon and David Torchia, for Plaintiff-Appellant,

Frost Brown Todd LLC, Jill P. Meyer and Matthew O. Wagner, for Defendants- Appellees.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

D E W INE , Judge.

{¶1} This is an appeal of a trial court judgment dismissing a lawsuit filed by an

employee against her former employer and supervisor. We conclude that two claims

asserted by the former employee—defamation and negligent supervision—were properly

dismissed because they were barred by the statute of limitations. But the court erred

when it dismissed a claim for tortious interference, which was not barred by the statute

of limitations. We therefore affirm the court’s judgment in part, but reverse as to the

tortious-interference claim.

I. Background

{¶2} On June 23, 2014, Gloria Kienow filed a complaint alleging defamation,

negligent supervision and tortious interference against Cincinnati Children’s Hospital

Medical Center (“Cincinnati Children’s”) and Mary Anne Morris. The defendants filed a

Civ.R. 12(B)(6) motion to dismiss the claims based on statute-of-limitations and other

grounds. The court dismissed all the claims.

{¶3} Because the trial court dismissed the claims pursuant to Civ.R. 12(B)(6),

we must take as true the facts stated in the complaint. Thus, the following recitation

comes from the allegations of Kienow’s complaint.

{¶4} From November 2006 to July 2011, Ms. Kienow worked at Cincinnati

Children’s and was supervised by Morris. While employed by Cincinnati Children’s, Ms.

Kienow sought transfers and promotions within the hospital as well as positions at other

hospitals. She was unsuccessful in her pursuit. Sometime prior to April 2010, during a

meeting with a human resources manager at Cincinnati Children’s, Ms. Kienow learned

that Morris had put what Kienow describes as “false, negative and misleading

information” in her personnel file. The manager agreed that the information should be

2 OHIO FIRST DISTRICT COURT OF APPEALS

removed from Kienow’s file. Despite Kienow’s follow-up with the human-resources

department, the information remained in her personnel file. Because Cincinnati

Children’s failed to take action to redress Morris’s actions, Ms. Kienow resigned from

her position in July 19, 2011.

{¶5} Following her resignation, Ms. Kienow sought employment at other

hospitals. In late December 2011 or early January 2012, she received a verbal offer of

employment from Dayton Children’s Hospital (“Dayton Children’s”). A week later,

however, the verbal offer was rescinded. In late 2013, Ms. Kienow learned that, in

January 2012, Morris had made negative, misleading and false statements about her to

the hiring manager at Dayton Children’s, and that as a result, the hospital had not hired

her.

II. The Statute of Limitations Barred the Defamation Claim

{¶6} In a single assignment of error, Ms. Kienow asserts that the trial court

erred when it dismissed her lawsuit. We begin our consideration with her claim for

defamation.

{¶7} The statute of limitations for defamation is one year. R.C. 2305.11. Ms.

Kienow claims that Morris made defamatory statements on two occasions—when she

put allegedly false information in Kienow’s personnel file prior to April 2010 and when

she relayed information to the hiring manager at Dayton Children’s in January 2012.

Both instances occurred more than a year before Kienow filed her complaint.

{¶8} Ms. Kienow attempts to avoid application of the statute by pointing out

that she didn’t learn of Morris’s statements to Dayton Children’s until late 2013. But an

action for defamation accrues on the date of publication; there is no discovery rule for

defamation. See Reed v. Jagnow, 7th Dist. Mahoning No. 12 MA 201,

,

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¶ 25. Because Kienow’s claim for defamation accrued more than one year before she

filed her complaint, it was barred by the statute of limitations.

III. The Negligent-Supervision Claim was Properly Dismissed

{¶9} Kienow’s negligent-supervision claim against Cincinnati Children’s was

likewise barred by the statute of limitations. The applicable of statute of limitations for

the tort of negligent supervision is four years. See R.C. 2305.09(D). In her complaint,

Ms. Kienow cites as “negligent supervision” two instances when she protested to

Cincinnati Children’s about Morris’s conduct, and the hospital failed to act. According

to the complaint, Kienow’s complaints to the hospital and its failure to act happened in

April 2010 or earlier—more than four years before she filed the lawsuit. Thus, the claim

for negligent supervision was untimely and properly dismissed by the trial court.

IV. The Complaint Stated a Claim for Tortious Interference

{¶10} Ms. Kienow also alleged that by making false, misleading and negative

statements about her, Morris tortiously interfered with her employment at Cincinnati

Children’s and with her job prospects at Dayton Children’s, and that Cincinnati

Children’s ratified the conduct. Cincinnati Children’s contends that the claim was

properly dismissed because it was untimely and because the complaint did not plead

facts to overcome the statutory privilege allowed employers who disclose job-

performance information about former employees.

A. A Four-Year Statute of Limitations Applies

{¶11} We first determine the applicable statute of limitations. Ms. Kienow

argues that because the claim was for tortious interference, the four-year statute of

limitations applies. See R.C. 2305.09(D). Cincinnati Children’s counters that the claim

was really a “disguised defamation,” subject to a one-year statute of limitations. See R.C.

2305.11.

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{¶12} When determining which statute of limitations applies, “courts must

look to the actual nature or subject matter of the case, rather than to the form in which

the action is pleaded.” Hambleton v. R.G. Barry Corp.,

,

(1984). Thus, in Worpenberg v. The Kroger Co., 1st Dist. Hamilton No. C-

010381,

, we looked to the nature of what was identified as a “damage-

to-reputation” claim and determined that it was really a defamation claim subject to a

one-year statute of limitations. We reasoned that “[a] claim is ‘complete under

defamation’ if, under the facts, it hinges upon the defendant communicating something

by speech or conduct.” Id. at *17, citing Silbaugh, Sticks and Stones Can Break My

Name: Nondefamatory Negligent Injury to Reputation, 59 U.Chi.L.Rev. 865, 868

(1992). Because the “damage-to-reputation” claim was “expressly premised upon a

‘communication,’ ” it was a defamation claim. Id. at *18.

{¶13} Cincinnati Children’s insists that, as in Worpenberg, Kienow’s tortious-

interference claim was based on Morris’s communication and so should also be

considered a defamation claim. But to conclude that Worpenberg means that any claim

involving communication is necessarily a defamation claim reads our decision in the

case too broadly. The nature of the “damage to reputation” claim in Worpenberg was

precisely the nature of a defamation claim—“a false and malicious publication against

an individual made with an intent to injure his reputation or to expose him to public

hatred, contempt, ridicule, shame, or disgrace or to affect him injuriously in his

trade, business or profession.” (Emphasis added.) Robb v. Lincoln Publishing

(Ohio), Inc.,

,

(12th Dist. 1996). In

contrast, the nature of a tortious-interference claim goes beyond damage to reputation.

“The basic principle of such an action is that one who, without a privilege to do so,

induces or otherwise purposely causes a third party not to enter into, or continue, a

5 OHIO FIRST DISTRICT COURT OF APPEALS

business relationship with another, or perform a contract with another is liable to the

other for the harm caused thereby.” Juhasz v. Quik Shops, Inc.,

,

(9th Dist. 1997). Here, the tortious-interference claim does not

hinge simply on Morris’s disseminating information but on her hindering a prospective

and known business relationship—Kienow’s pending employment with Dayton

Children’s. The claim alleged by Kienow is not of the same nature as a defamation

claim. Ms. Morris did not simply say bad things about her, but, according to the

complaint, specifically and intentionally interfered with her prospective business

relationship with Dayton Children’s. Under these facts, we conclude that the complaint

alleges a tortious-interference claim, and the four-year statute of limitations applies.

B. Application of the Four-Year Statute of Limitations

{¶14} Having determined the applicable statute of limitations, we apply it to

the claim asserted by Kienow. Part of her claim was that Morris interfered with her

Cincinnati Children’s employment by putting information in her personnel file. As

discussed above, that happen no later than April 2010, more than four years before

Kienow filed her complaint. That part of the claim was untimely.

{¶15} The other part of her claim—the interference with her job prospects at

Dayton Children’s—occurred sometime in January 2012, when Morris allegedly made

negative statements about Kienow to the hiring manager at Dayton Children’s. That

part was timely filed.

C. The Complaint Sufficiently Stated a Claim for Tortious Interference

{¶16} Cincinnati Children’s rejoins that, regardless of the statute of limitations,

the complaint did not state a claim for tortious interference because Kienow failed to

plead facts to overcome the statutory privilege due employers who share information

about employees with prospective employers.

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶17} R.C. 4113.73(B) provides that “[a]n employer who is requested by * * * a

prospective employer of an employee to disclose * * * job performance” information

is not liable for damages resulting therefrom unless the employee establishes that

the information was disclosed maliciously, in bad faith, with a deliberate intent to

mislead or as an unlawful discriminatory practice. Cincinnati Children’s maintains

that Kienow’s complaint did not plead facts to overcome the statutory privilege. But it is

not obvious on the face of the complaint that the privilege applied: there was no

allegation that Dayton Children’s “requested” information from Cincinnati Children’s

or Morris. Ms. Kienow was not required to plead to defeat a potential privilege not

obvious on the face of the complaint. See Gall v. Dye, 9th Dist. Lorain 98CA007183,

, *8 (Sept. 8, 1999). Thus, the complaint sufficiently

stated a claim for tortious interference.

V. Conclusion

{¶18} The sole assignment of error is overruled in part and sustained in part.

The trial court properly dismissed the claims for defamation and negligent supervision

because they were untimely. The tortious-interference claim, to the extent it referred to

actions done before April 2010, was also untimely. But the part of the claim that alleged

Morris had made statements to Dayton Children’s in January 2012 was timely and

stated a claim. The court erred when it granted the motion to dismiss with respect to

that part of the claim. We reverse that part of the judgment and remand the case for

further proceedings. In all other respects, the judgment is affirmed.

Judgment accordingly.

H ENDON , P.J., and F ISCHER , J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.

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