Plaintiffs' reply in support of their motion for partial summary judgment

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efore a referee who will make a recommendation to the School Board regarding Freshwater’s employment, and both Freshwater and the School Board have called numerous witnesses and have introduced hundreds of exhibits during that hearing, some of which Freshwater also has submitted as exhibits to his memorandum in opposition to the Dennises’ summary-judgment motion. See O.R.C. § 3319.16 (setting forth procedures for terminating Ohio public school teachers and requiring “the employing board [to] furnish the teacher with a written notice signed by its treasurer of its intention to consider the termination of the teacher’s contract with full specification of the grounds for such consideration”); Notice of Intent to Consider Termination of John Freshwater (attached as Ex. D); Amended Notice of Intent to Consider Termination of John Freshwater (attached as Ex. E); Letter to John Freshwater from Stephen Short (July 1, 2008) (attached as Ex. F); see also, e.g., Exs. O and R to Hamilton Mem. in Opp. (Exhibit O stamped at top of first page as “Exhibit O – Administrative Hearing Employee Exhibit 154 and Exhibit R stamped at top of first page as “Exhibit R – Administrative Hearing Employee Exhibit 158). Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 16 of 54 Having demonstrated that the termination hearing qualifies as a quasi-judicial proceeding, the Dennises need only show that the portions of Zach’s testimony that Freshwater claims are defamatory “bear[] some reasonable relation” to the proceeding in which they were published. See Surace v. Wuliger, 495 N.E.2d 939, 942-43 (Ohio 1986). Freshwater did not and cannot credibly argue that Zach’s testimony bears no reasonable relation to the termination hearing in which Zach provided that testimony—he was called as a witness to provide testimony about what transpired in Freshwater’s classroom during the 2007-2008 school year. (See, e.g., Freshwater Termination Hearing Tr., Zachary Dennis Test., 10/28/08, at 330 (noting that Zach 9
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 17 of 54 testified that day).) Zach’s testimony therefore is absolutely privileged and cannot serve as the basis for Freshwater’s defamation counterclaim. Even if this Court concludes that Zach’s statements are not protected by an absolute judicial privilege (which it should not), the statements are nonetheless protected by a qualified privilege. See Thompson v. Webb, 735 N.E.2d 975, 979 (Ohio Ct. App. 1999) (“[I]n order to establish a qualified privilege,” a party “must show that (1) the publication was made in good faith, (2) there was an interest to be upheld, (3) the publication was limited in scope to that interest, (4) the publication was made on a proper occasion, and (5) the publication was done in a proper manner and to the proper parties.”). Zach acted in good faith when he testified at the termination hearing about his experiences in Freshwater’s science class and at FCA meetings; he was sworn in as a witness and simply responded to questions by counsel for the School Board and Freshwater’s counsel about events and circumstances during the 2007-2008 school year, thereby satisfying the first qualified-privilege requirement. The remaining requirements are also easily satisfied because there was an interest to uphold and the statements were properly limited to those interests, as Zach was called by Freshwater and the School Board in Freshwater’s termination hearing to provide testimony to assist the referee in reaching a decision about whether to terminate Freshwater from his teaching position, and Zach’s testimony was properly offered within the confines of the termination hearing. With all five requirements satisfied, Zach’s testimony at the termination hearing is also qualifiedly privileged, and these 10 statements on Freshwater’s list can in no way be considered defamatory. 3. The Statements That The Dennises Made To HR On Call Investigators Are Also Protected By A Qualified Privilege. Statements 9, 10, 11, 12, 13, 14, 15, and 16 on Freshwater’s list are statements contained in an investigative report drafted by HR On Call, Inc., the company commissioned by the Mount 10
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Plaintiffs' reply in support of their motion for partial summary judgment

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