Opinion
Case No. 2:07-cv-177.
July 10, 2008
OPINION AND ORDER
Plaintiff, Ronald LaBarge ("LaBarge") filed a complaint against Defendant Werner Enterprises ("Werner") alleging defamation and tortious interference with a business relationship. Werner has moved this court for an order granting summary judgment as to both of these claims.
I. Facts
LaBarge was employed as a truck driver with Werner until April 4, 2006. Throughout his employment, he and his fellow employees were subject to a number of "safety holds." When Werner places an employee on a safety hold, that means the employee is to report to the safety office. A safety hold may be for a variety of reasons, including that the driver needs to take some type of a computer test, that there is a complaint lodged against him, that he has logging errors, or that he needs to be drug tested.
On April 4, 2006, LaBarge received an assignment to drive to Indianapolis, Indiana from his home city of Columbus, Ohio. When LaBarge arrived at the gate of Werner's Indianapolis facility, the guard at the gate informed him he was on a safety hold. Almost a half an hour later, he sent a message from his computer terminal in his truck to his supervisor in Columbus, Ohio which stated, "I quit." LaBarge then took his keys and permit book to the safety office, placed his material in the office, and left. After quitting in Indianapolis, he called a relative for a ride home to Columbus.
LaBarge alleges that prior to his trip to Indianapolis he had been having trouble getting paid. During the trip from Columbus to Indianapolis he had difficulty getting the trip number assigned, which was essential to ensure proper payment for that trip. Frustrated with his work, he decided to quit. Upon arriving at the gate and learning of the safety hold, LaBarge drove around for a half an hour looking for a parking spot. After finding a spot, he used his computer terminal to send a message to management that he quit.
Werner, on the other hand, asserts that it believed LaBarge quit because he knew he was going to be subject to a drug test. Werner asserts that LaBarge had been on safety holds six or seven times for drug testing prior to his last day of work, and therefore he would have reasonably anticipated that this safety hold was also for drug test. Thus, under Werner's theory, when LaBarge heard he was subject to a safety hold, he assumed it was for a drug test and quit.
After he resigned from his position with Werner, LaBarge applied for employment with a prospective employer. That prospective employer informed LaBarge that he was ineligible for the job because Werner reported that he had refused to take a drug test.
On February 7, 2007 LaBarge, an Ohio resident, filed the instant case in Ohio state court alleging causes of action for defamation and tortious interference with a business relationship. Werner, a Nebraska corporation, removed the case to this court on March 2, 2007 on the basis of diversity jurisdiction under 28 U.S.C. § 1332. On November 9, 2007 Werner filed its motion for summary judgment. On February 6, 2008, after briefing on the Motion for Summary Judgment was completed, LaBarge filed a Motion for Leave to File Additional Evidence.
II. Standard of Review
Under Fed.R.Civ.P. 56(c), summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir. 1992) (per curium). The party that moves for summary judgment has the burden of showing that there are no genuine issues of material fact in the case at issue, LaPointe, 8 F.3d at 378, which may be accomplished by pointing out to the court that the nonmoving party lacks evidence to support an essential element of its case. Barnhart v. Pickrel, Schaeffer Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir. 1993). In response, the nonmoving party must present "significant probative evidence" to demonstrate that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis added); see generally Booker v. Brown Williamson Tobacco Co., Inc., 879 F.2d 1304, 1310 (6th Cir. 1989).
In reviewing a motion for summary judgment, "this Court must determine whether `the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'"Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quotingAnderson, 477 U.S. at 251-52). The evidence, all facts, and any inferences that may permissibly be drawn from the facts must be viewed in the light most favorable to the nonmoving party.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). See also Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). However, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. See also Gregory v. Hunt, 24 F.3d 781, 784 (6th Cir. 1994). Finally, a district court considering a motion for summary judgment may not weigh evidence or make credibility determinations. Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994).
III. Discussion
A. Werner's Request to Strike
As a preliminary matter, this court notes that LaBarge attached a number of unauthenticated documents and unsworn statements to his response to Werner's Motion for Summary Judgment. Werner, in a footnote in its reply memorandum, asks this court to strike those documents from the record because they are unauthenticated. Reply Memo., FN. 1. LaBarge has not responded to this argument. In fact, after briefing on the summary judgment motion was completed, LaBarge filed a Motion for Leave to File Additional Evidence (Doc. #29) asking this court to consider yet another unsworn document.
In summary judgment proceedings, Rule 56(e) requires that sworn or certified copies of all papers be attached to an affidavit. Thus, to be considered in a summary judgment proceeding, an exhibit must be authenticated. Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir. 1993); Phelps v. Coy, 164 F. Supp.2d 961, 969 n. 9 (S.D. Ohio 2000) (in sustaining the defendants' Motion to Strike, the Court held that because "the Plaintiff has not authenticated the document, this Court cannot consider it when ruling upon the . . . Defendants' Motion for Summary Judgment"). Under 28 U.S.C. § 1746 a court may consider a signed statement even if unsworn only if it contains language which verifies that under penalty of perjury the statement is true and correct. Here, the statements attached to LaBarge's motions do not contain this required language. Therefore, in ruling on Werner's Motion for Summary Judgment, this court has not considered the documents attached to LaBarge's brief and only considered the cited portions of the depositions on record with this court. Moreover, LaBarge's Motion for Leave to File additional evidence (Doc. #29) which requests this court to consider an additional unsworn document is denied and Werner's request to strike is granted.
B. Merits of the Case
LaBarge alleges that Werner is liable for both defamation and tortious interference with a business relationship because Werner informed his prospective employer that he refused a drug test when in fact, he only failed to appear for a safety hold.
1. Defamation
"Defamation is a false publication causing injury to a person's reputation, or exposing him to public hatred, contempt, ridicule, shame or disgrace, or affecting him adversely in his trade or business." Rogers v. Buckel, 83 Ohio App. 3d 653, 659, 615 N.E.2d 669, 672-673 (1992). Libel generally refers to a defamatory statement that has been memorialized in someway, either in writing or otherwise. Slander, on the other hand, refers to spoken defamatory words. "To prevail on a defamation claim, whether libel or slander, a plaintiff must prove the following elements: (1) a false statement, (2) about the plaintiff, (3) published without privilege to a third party, (4) with fault of at least negligence on the part of the defendant, and (5) that was either defamatory per se or caused special harm to the plaintiff." McPeek v. Leetonia Italian-American Club, 174 Ohio App. 3d 380, 384, 882 N.E.2d 450, 453 (2007). Werner argues that it is entitled to summary judgment because the statement was not false and because it was published with privilege.
a. A False Statement
Truth is an absolute defense against a claim of defamation. Id. According to Werner the statement that LaBarge refused a drug test was true because The United States Department of Transportation ("DOT") broadly defines what is meant by "refusal" to take a drug test.
The DOT provides federal regulations for all commercial motor vehicles pursuant to 49 U.S.C. § 31301 et seq. The Federal Motor Carrier Safety Administration, a separate administration within the DOT, regulates drug and alcohol testing for carriers and has issued regulations on drug and alcohol testing. The regulations require every driver to submit to random drug testing. 49 C.F.R. § 382.211. Under the regulations, refusing to submit to a test is defined in a number of ways, including that the employee "failed to appear within a reasonable time, as determined by the employer . . . after being directed to do so by the employer." 49 C.F.R. § 382.107.
Here, Werner argues that, as the employer, it is entitled under the regulations to "determine" what a reasonable time is for an employee to appear for a drug test and that when LaBarge failed to appear within the half hour for his test, Werner determined he had taken an unreasonable amount of time and therefore refused the test. But as LaBarge points out the regulations state that the employee must appear for a drug test within a reasonable time "after being directed to do so by the employer." Werner has produced no evidence demonstrating that LaBarge was ever directed to take a drug test. LaBarge argues that he was on a safety hold and he did not know it was for a drug test. Therefore, the amount of time it took for him to report is irrelevant since he was not directed to take a drug test.
Moreover, Werner's assertion that it made some sort of "reasonable time" determination as allowed by the statute is unsupported. Werner points to no evidence that employees were typically required to appear within a half hour for a test or that Werner had a policy or practice of labeling such failure to appear as a refusal to test. Whether or not LaBarge in fact refused a drug test is an issue of material fact, and construing the evidence in a light most favorable to LaBarge for summary judgment purposes, a jury could reasonably find that he did not refuse a test and therefore, Werner's statement was false.
Werner also argues that the regulations require drug testing be "unannounced" and therefore, Werner was not required to tell LaBarge he had to take a test in order for LaBarge to refuse it. While it is true that under 49 C.F.R. 382.305(k)(1) drug testing is to be unannounced, at some point before the test is taken, the employee must be aware that the test is being taken. That is, the employee must be "directed" to take the test. It is only after the employee has been so directed that he can knowingly refuse the test.
b. Qualified Privilege and Actual Malice
Werner alternatively argues that even if the statement is false, it is entitled to qualified privilege. In Ohio, a statement that is otherwise defamatory may be protected if it falls under a qualified privilege. A statement is subject to qualified privilege if it was 1) made in good faith, 2) with an interest to be upheld, 3) limited in scope to the purpose of upholding the interest, 4) proper to the occasion and 5) was made in proper manner and only to proper parties. Hahn v. Kotten, 43 Ohio St.2d 237, 246, 331 N.E.2d 713, 719 (1975).
Werner's communication to LaBarge's prospective employer qualifies for the privilege because in Ohio, qualified privilege exists for a communication of an employer concerning a former employee to that employee's prospective employer. See Wylie v. Arnold Transp. Servs., 494 F. Supp. 2d 717, 729 (S.D. Ohio 2006) citing Johnson v. Lakewood Hospital, No. 70943/71257, 1997 Ohio App. LEXIS 4016, at *16 (Sept. 4, 1997); Rinehart v. Maiorano, 76 Ohio App.3d 413, 421, 602 N.E.2d 340, 346 (1991); Randleman v. Dick Masheter Ford, Inc., No. 91AP-201, 1991 Ohio App. LEXIS 4032, at *16 (Aug. 22, 1991). Moreover, the federal regulations require Werner to communicate an employee's refusal to test to prospective employers. 49 C.F.R. § 40.25(h).
49 C.F.R. § 40.25(h) states: "If you are an employer from whom information is requested under paragraph (b) of this section [which includes refusals to be tested], you must, after reviewing the employee's specific, written consent, immediately release the requested information to the employer making the inquiry."
If a defendant is entitled to a qualified privilege, as Werner is here, then in order for a plaintiff to defeat that privilege, the plaintiff must demonstrate actual malice on the part of the defendant by clear and convincing evidence. Jacobs v. Frank, 60 Ohio St.3d 111, 116, 573 N.E.2d 609, 614 (1991). Typically, common law malice connotes "hatred, ill will or a spirit of revenge" or a "conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm." Id. at 115 (quoting Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174, syllabus (1987)). Actual malice, on the other hand, is defined as acting with knowledge that the statement is false or acting with reckless disregard as to the statement's truth or falsity. Id. at 116. Actual malice may not be inferred from evidence of personal spite, ill-will or an intent to injure. Id. at 119. Instead, there must be a showing that the false statement was made and that it was made by someone who had "a high degree of awareness of [the statement's] probable falsity." Id. (quotingDupler v. Mansfield Journal, 64 Ohio St.2d 116, 119, 413 N.E.2d 1187, 1190 (1980)). Courts do not concentrate on the truth or falsity of the statement itself, "but on the subjective belief of the author." Id.
To establish "reckless disregard" under the actual malice standard, a plaintiff must present sufficient evidence that the defendant had serious doubts as to the truth of the statement. A B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. Constr. Trades Council, 73 Ohio St. 3d 1, 12-13, 651 N.E.2d 1283, 1293 (1995). "[T]he failure to investigate before publishing will not defeat a qualified privilege, unless the defendant entertained serious doubts as to the truth of his statements or the veracity or accuracy of his sources." Id. Reckless disregard, however, is likely to be found where a story is fabricated by the defendant or is simply the product of his imagination. Id. at 13.
In determining whether LaBarge has provided sufficient evidence to show actual malice in the summary judgment context, this court must consider the heightened clear and convincing evidence standard. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986) (holding that the heightened burden of proof must be factored into summary judgment analysis). In a summary judgment motion on a defamation claim, the court must consider the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff to determine whether a reasonable jury could find by clear and convincing evidence that the defendant acted with actual malice. See Compuware Corp. v. Moody's Investors Servs., 499 F.3d 520, 525 (6th Cir. 2007); See also Jackson v. City of Columbus, 117 Ohio St. 3d 328, 331-332, 883 N.E.2d 1060, 1064-1065 (2008). The clear-and-convincing standard of proof in the summary judgment context, however, does not "denigrate the role of the jury. . . . Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. . . . The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.
Here, Werner has asserted that the reason it believed LaBarge had refused a drug test was because LaBarge had been drug tested at least six or seven times in the past when he was stopped for a safety hold. LaBarge, on the other hand, asserts that there are many reasons for a safety hold and that the company acted recklessly in assuming that his failure to attend a safety hold amounted to a refusal to take a drug test.
In a defamation case the court focuses on the subjective belief of the defendant, so the important evidence here is that which supports Werner's belief that its statement was true. See Jacobs v. Frank, 60 Ohio St.3d 111, 119, 573 N.E.2d 609, 616 (1991). Werner presents no evidence of the how often LaBarge's safety holds were for drug tests. For example, Werner has not shown that LaBarge was tested for drugs six or seven times out of ten total safety holds or six or seven times out of one hundred total safety holds. It only asserts that LaBarge was put on a safety hold for a drug test six or seven times. LaBarge, on the other hand, admits that he was drug tested six or seven times, but he goes a step further and avers that ninety percent of the time safety holds were not for drug tests. The following exchange took place in LaBarge's deposition:
Although Werner alleges that LaBarge's wife was tested for drugs in five out of her six safety holds, this evidence is not relevant to why LaBarge himself would have believed his safety holds were for drug tests.
LaBarge has also presented evidence that other employees of the company agree that safety holds can be for a number of reasons, only one of which is drug testing. See Luchetta Depo., p. 23; Cannon Depo., p. 9. Thus, LaBarge calls into question Werner's stated reason for believing that drug testing was the reason he refused the safety hold. A reasonable jury could find that Werner entertained "serious doubts" as to the truth of its statement or that its explanation was simply "fabricated." In the summary judgment context the issue is whether the evidence is sufficient to create a question for a trier of fact. See Buchko v. The City Hospital Ass'n, No. 94-4064, 1996 U.S. App. LEXIS 3477, at *22 (6th Cir. January 29, 1996); Clanin v. North American Bulk Transport, Inc., No. C-3-01-488, 2003 U.S. Dist. LEXIS 4156, at *11-12 (S.D. Ohio January 22, 2003).
Werner argues that LaBarge cannot show actual malice because he stated in his deposition that he agreed Werner made an "honest mistake" when communicating that he refused a drug test. LaBarge Depo., p. 74. Actually, what LaBarge said was that Werner "could have" made an honest mistake. LaBarge's conjecture as to Werner's state of mind would not necessarily preclude a jury from finding Werner acted with reckless indifference when it reported that LaBarge quit due to a drug test. Actual malice necessarily requires a fact finder to determine a defendant's state of mind, often with little direct evidence. In these circumstances, the determination will rest on circumstantial evidence such as defendant's actions or statements, the dubious nature of defendant's sources, or the inherent improbability of defendant's story. See Celle v. Filipino Reporter Enters., 209 F.3d 163, 183 (2d Cir. 2000).
2. Tortious Interference
Tortious interference with a business relationship occurs when a person, without privilege, induces or otherwise purposely causes a third person not to enter into a business relationship with another person. A B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. Constr. Trades Council, 73 Ohio St. 3d 1, 14, 651 N.E.2d 1283, 1294 (1995). In order to demonstrate the elements of tortious interference with a business relationship plaintiff must show (1) a business relationship, (2) the tortfeasor's knowledge of that relationship, (3) intentional interference causing a breach or termination of the relationship, and (4) damages resulting therefrom. Diamond Wine and Spirits v. Dayton Heidelberg Distributing Co, Inc., 148 Ohio App.3d 596, 604, 774 N.E.2d 775, 780 (2002).
Werner does not dispute that the circumstances here meet the elements of tortious interference with a business relationship as laid out in Diamond Wine. Instead, it again argues that the communication was justified or privileged because Werner is required to release information to a prospective employer under 49 C.F.R. § 40.25. Where a cause of action for defamation and tortious interference are based on the same statements and the communication is privileged, the plaintiff still has to show actual malice to prevail on the tortious interference claim. See A B-Abell Elevator Co., 73 Ohio St. 3d at 14 (holding that when defamation and tortious interference actions are based on the same statements, the protection afforded by virtue of the heightened standard of malice must apply to both claims).
LaBarge does not dispute that Werner's actions were privileged and required under the law, but instead argues that Werner acted with actual malice in communicating false information to his prospective employer. As noted above, a material dispute of fact exists as to whether Werner acted with actual malice in communicating the allegedly false information.
3. Statutory Privilege
In addition to the common law protection of qualified privilege, Ohio law also provides statutory protection for employers. Where an employer is requested by a prospective employer to disclose information pertaining to the job performance of a former employee and that employer provides that information, the employer is not liable in damages for harm sustained as a result of making that disclosure. Ohio Rev. Code § 4113.71(B). In order to overcome this privilege, the plaintiff must show by a preponderance of the evidence either: 1) "that the employer disclosed particular information with the knowledge that it was false, with the deliberate intent to mislead the prospective employer or another person, in bad faith, or with malicious purpose" or 2) "that the disclosure of particular information by the employer constitutes an unlawful discriminatory practice [as defined in the] Revised Code." Ohio Rev. Code § 4113.71(B)(1), (2).
Ohio Rev. Code § 4113.71(D)(2) states "[t]his section does not affect any immunities from civil liability or defenses . . . available at common law to which an employer may be entitled under circumstances not covered by this section."
In its Motion for Summary Judgment, Werner argues that the statute can only be overcome by a showing that "the information was false or the disclosure of the information constitutes an unlawful discriminatory practice." Motion, p. 10. Werner then goes on to argue again that the statement that LaBarge refused a drug test was true and therefore is entitled to protection by the Ohio statute. As noted above, whether or not the statement is true is a disputed material fact.
Neither party addresses that the statutory privilege can be overcome by showing "malicious purpose" and neither party suggests that the statutory language "malicious purpose" means anything other than "actual malice" as defined above. This portion of the Ohio statute has not been interpreted by any Ohio court and this court's research revealed only one case, from the Southern District of Ohio, applying the applicable language. See Clanin v. North American Bulk Transport, Inc., No. C-3-01-488, 2003 U.S. Dist. LEXIS 4156, (S.D. Ohio January 22, 2003). In Clanin the court applied the actual malice standard to the malicious purpose language used in the statute. If Clanin is followed, then LaBarge has demonstrated a genuine issue of material fact as to whether Werner acted with actual malice which would be sufficient to overcome the statutory privilege.
IV. Conclusion
For the reasons stated above, Werner's November 9, 2007 Motion for Summary Judgment (Doc.# 19) is denied and LaBarge's February 6, 2008 Motion for Leave to File Additional Evidence (Doc. #29) is denied.