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

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Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 24 of 54 namely, that the Dennises fully complied with the District’s complaint process. Indeed, the excerpt that Freshwater has provided expressly states that the policy provision requiring complainants to speak directly to the staff member about whom they are complaining “does not apply if the matter involves . . . serious allegations which may require investigation or inquiry by school officials.” (See id. at 1 (emphasis added).) Freshwater readily admits that the allegations against him were serious. In fact, in the very next sentence of his memorandum in opposition, Freshwater refers to the “seriousness of the allegations made by Plaintiffs against” him. (id. at 11.) Freshwater’s attempt to prove that the Dennises’ conduct was outrageous or extreme has backfired, as he instead has demonstrated that the family acted anything but outrageously when they approached school officials in confidence to talk about what happened to Zach in Freshwater’s classroom. 3. Freshwater Has Offered No Evidence That He Suffered From A Severe Or Debilitating Injury. The “injuries” from which Freshwater claims to suffer as a result of the Dennises’ alleged defamatory statements fall well short of satisfying the final element of intentional infliction of emotional distress, which requires “an emotional injury which is both severe and debilitating.” Burkes v. Stidham, 668 N.E.2d 982, 989 (Ohio Ct. App. 1995). Freshwater’s testimony “about the difficulty he has had finding employment and the challenges he has faced as a result of Plaintiffs [sic] conduct” (Hamilton Mem. in Opp. at 12), yields no evidence that his lack of employment resulted in a severe and debilitating emotional injury. See, e.g., Farmer v. Rolls-Royce Energy Sys., Inc., No. 06CA8, 2006 WL 2244488, at *4 (Ohio Ct. App. Aug. 4, 2006) (upholding summary judgment for employer on laid-off employee’s intentional-infliction of emotional-distress claim and finding employee’s “emotional distress,” which consisted of having “to go out and get a new job” and “not getting the same 17
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 25 of 54 paycheck [he] was accustomed to . . . over what [he] believe[d] to be trumped-up charges . . . did not rise to the level of serious mental anguish under Ohio law”). And Freshwater cannot save his counterclaim for intentional infliction of emotional distress simply by stating that “[r]easonable jurors could find Plaintiffs [sic] accusations related to the alleged ‘healing’ session alone would subject Freshwater to public outrage.” (Hamilton Mem. in Opp. at 12.) Even if the Dennises used the term “healing session,” Freshwater still cannot prevail on his emotional-distress counterclaim because he offers no evidence, outside of his self-serving affidavits and his own testimony at the termination hearing, of public outrage flowing from the Dennises’ use of this term, or of any severe and debilitating injuries that he sustained as a result of this alleged public outrage. See Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d at 1111 (noting that “while Ohio does not require expert medical testimony to support an intentional infliction of emotional distress claim, a [party] must at least provide some evidence beyond his or her own testimony”). Because Freshwater has failed to make out a prima facie case for intentional infliction of emotional distress, the Dennises should be granted summary judgment on this counterclaim as well. C. The Dennises Should Be Granted Summary Judgment On Their Battery Claim. Recognizing the weakness of his own motion for summary judgment on Plaintiffs’ battery claim, Freshwater now reverses course and attempts to argue that summary judgment is improper because fact disputes remain as to whether Freshwater committed battery when he burned Zach’s arm with the Tesla coil. (Def. Freshwater’s Mem. in Opp. to Pls.’ Mot. for Partial Summ. J. at 3 (Doc. No. 68) (hereinafter “Deschler Mem. in Opp.”).) But Freshwater has not pointed to any dispute as to the material facts surrounding the Dennises’ battery claim, all of which establish that Freshwater acted with the requisite intent and committed an offensive 18
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Plaintiffs' reply in support of their motion for partial summary judgment

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