Opinion
Cause No. IP98-1398-C-H/G
October 26, 2000
Bull; John H Haskin Haskin Lauter Cohen Larue Indianapolis, IN 46204
Robin M Lybolt Assistant Corporation Counsel Indianapolis, IN 46204
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Veronica Moreno-Nicholas has sued the City of Indianapolis under Title VII of the Civil Rights Act of 1964 for post-employment retaliation. She alleges that, because she previously brought a discrimination action against the City, the City gave her negative job references that caused her not to be hired for a job in California. Moreno-Nicholas also has asserted related claims for defamation and for blacklisting under Indiana Code § 22-5-3-1. The City has moved for summary judgment on all three claims. In response, Moreno-Nicholas has abandoned her blacklisting claim. As explained below, disputed issues of material fact require that the City's summary judgment motion be denied with respect to the retaliation and defamation claims.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, summary judgment is not a substitute for a jury's determination about credibility or about whether a reasonable inference should be drawn from circumstantial evidence of a person's intentions. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998).
On a summary judgment motion, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court cannot gauge the credibility of conflicting evidence, such as that presented in this case. The court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Service, Inc., 169 F.3d 494, 497 (7th Cir. 1999). However, the existence of "some alleged factual dispute between the parties," or "some metaphysical doubt" does not create a genuine issue of fact. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). Rather, the proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 512 (7th Cir. 1996).
Although intent and credibility are critical issues in employment discrimination cases, there is no special rule of civil procedure that applies only to them. See, e.g., Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In employment discrimination cases, as in all cases, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact.
Undisputed Facts
For purposes of the City's summary judgment motion, the following facts are either undisputed or reflect the record in the light reasonably most favorable to plaintiff Moreno-Nicholas, the non-moving party. Moreno-Nicholas worked for the City of Indianapolis from March 1986 until October 1995 when she resigned to take a job in California. Pl. Ex. 1; Moreno-Nicholas Dep. 102-03. Over the years, Moreno-Nicholas performed various jobs for the City, including inventory processor, easement coordinator, and systems analyst. See Pl. Exs. 1, 2, 15. Alan Ruot began supervising Moreno-Nicholas in 1992. Ruot Dep. 32.
In April 1995, prior to her resignation, Moreno-Nicholas filed a discrimination charge against the City with the Equal Employment Opportunity Commission alleging sex and pregnancy discrimination and a violation of the Equal Pay Act. Pl. Ex. 3. In March 1996, after she resigned, Moreno-Nicholas filed a discrimination lawsuit against the City based on the allegations in her charge. Many of Moreno-Nicholas' allegations related to Ruot's conduct. See Moreno-Nicholas Dep. 104. In April 1997, Moreno-Nicholas and the City settled the lawsuit. Moreno-Nicholas Dep. 49-50. Nothing in the settlement agreement or in the City's policies prohibited the City from rehiring Moreno-Nicholas. Pl. Exs. 7, 21; see Smith Dep. 34-35, 65.
During the summer of 1997, Moreno-Nicholas sought a transportation analyst position at the Orange County Transportation Authority ("OCTA") in California. Moreno-Nicholas Dep. 128-29; Pl. Ex. 10. As part of the application process, Moreno-Nicholas was required to identify her previous employers and supervisors. Moreno-Nicholas Dep. 130-31. Moreno-Nicholas provided the names of and contact information for Ruot and Steve Nielson, two of her supervisors at the City. Moreno-Nicholas Dep. 78-83, Pl. Ex. 9. By 1997, Nielson no longer worked for the City. Moreno-Nicholas Dep. 60, 78. Nielson resigned his employment with the City in February 1993. Def. Resp. to Pl. Supp. Interrog., Def. Ex. G.
OCTA employee Dean Delgado interviewed Moreno-Nicholas on July 22, 1997. Moreno-Nicholas Dep. 128-31; Pl. Ex. 10. Delgado recommended that OCTA hire Moreno-Nicholas. Pl. Ex. 10. In a post-interview telephone conversation, OCTA Senior Employment Representative Annette Hills told Moreno-Nicholas that OCTA would have to conduct a reference check before offering her the job. Moreno-Nicholas Dep. 132. Following the reference check, OCTA Director of Human Resources Fred Flores telephoned Moreno-Nicholas to inform her that OCTA no longer was considering her for the position because of one of her references. Moreno-Nicholas Dep. 135-36. Flores told Moreno-Nicholas that he could not disclose the specific information that OCTA obtained from her references. Moreno-Nicholas Dep. 136.
This evidence of Flores' explanations of OCTA's decision is objectionable as hearsay. Because no objection was raised, however, the court considers it for present purposes.
In addition to Flores' comments to Moreno-Nicholas, OCTA has made other statements about the reasons for its hiring decision and about the information it received from Moreno-Nicholas' references.
In a telephone conversation on November 5, 1997, Hills told an EEOC investigator that Moreno-Nicholas' references were not willing to provide enough information about her. Def. Ex. F (November 5, 1997, EEOC File Memorandum) ("EEOC File Memorandum"). In response to the investigator's follow-up question about what she learned about Moreno-Nicholas, Hills referred to Nielson's reference. Nielson told Hill, "no" — "you can consider that as my reference." Id; see also Def. Ex. I (document 331). Hills also stated that she had attempted to talk with others in management at the City. EEOC File Memorandum. When the investigator asked for additional details about those communications, Hills "stalled," "would not answer the questions," and stated that she needed five to then minutes to retrieve the information. Id. The investigator told Hills that she found this response strange because she had scheduled the conference with Hills in advance and had set an agenda for it. Id.
Neither side has raised any evidentiary objection to considering the memorandum on the motion, so the court treats it as evidence for purposes of the motion for summary judgment.
The EEOC File Memorandum states that "Hills said Nielsen said no! you cannot consider that as my reference." EEOC File Memorandum (emphasis added). Hills' notes from the reference check reflect that Nielsen said: "no" — "you can consider that my reference." Def. Ex. I (document 331) (emphasis added). In the absence of any argument from the parties to the contrary, the court does not attach any importance to the discrepancy between the EEOC File Memorandum and Hills' notes, and in any event, the court must accept the version most favorable to plaintiff.
After the investigator waited on the line, Flores took the call and asked the investigator to provide a letter to OCTA with any additional inquiries. Id. The investigator then submitted a written information request. Id. In response, OCTA provided a statement certifying that it did not attribute its decision to the check of plaintiff's references but said instead that it chose someone else for the transportation analyst position because "other candidates possessed more directly related transportation experience and qualifications." OCTA Statement dated November 7, 1997, Def. Ex. E ("OCTA Statement"). Regarding Ruot, OCTA stated that he declined to comment on Moreno-Nicholas' qualifications and that "he indicated that she was not subject to rehire." Id; see also Def. Ex. I (document 332). The OCTA further certified that it received no information about Moreno-Nicholas' discrimination charge or lawsuit from her references. OCTA Statement.
Before Moreno-Nicholas sought the OCTA job, she had begun working with human resources consultant Michael Druan as part of a severance package after another employer eliminated her position.
Moreno-Nicholas Dep. 105-09. Moreno-Nicholas told Druan that she believed that OCTA did not hire her because of Ruot's reference. Id. at 61-62. Druan telephoned Ruot to request a reference for Moreno-Nicholas. Id. at 85-87; Druan Statement, Pl. Ex. 15; Druan Aff. According to Moreno-Nicholas, Druan wanted to conduct the reference check with Ruot personally to keep future prospective employers away from Ruot. Moreno-Nicholas Dep. 62. After speaking with Ruot, Druan would tell prospective employers that the reference check already had been completed. Id. Druan himself was not a prospective employer; nor was he representing a specific prospective employer when he telephoned Ruot. Id. at 166-67.
Moreno-Nicholas listened to Druan's conversation with Ruot in Druan's office. Id. at 62-63. During the conversation, Ruot mentioned that Moreno had filed a discrimination claim against the City. Id. at 86-87; Pl. Ex. 15. Druan testified in his affidavit that Ruot also told him that plaintiff was not eligible for rehire because of the EEOC complaint. Pl. Ex. 15; Druan Aff.
Ruot disputes all of these facts, but on summary judgment, the court must accept the evidence that tends to support plaintiff as the non-moving party.
Discussion
I. Moreno-Nicholas' Retaliation ClaimTitle VII makes it unlawful for an employer to discriminate against any employee because she has made a charge under or otherwise participated in any proceeding under the Act. 42 U.S.C. § 2000e-3(a).
"In other words, it is unlawful for an employer to retaliate against an employee for exercising her rights under Title VII." Mathur v. Board of Trustees of Southern Illinois Univ., 207 F.3d 938, 941 (7th Cir. 2000). In general, a former employee can sue under Title VII for post-employment acts of retaliation that have a nexus to employment or impinge on future employment prospects. Ruedlinger v. Jarrett, 106 F.3d 212, 214 (7th Cir. 1997); Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 (7th Cir. 1996); see generally Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (holding that former employee may bring action under Title VII's retaliation provision). To prove liability, a post-employment retaliation plaintiff must demonstrate an "employment impairment that evidences actionable retaliation." Veprinsky, 87 F.3d at 891, quoting Reed v. Shepard, 939 F.2d 484, 493 (7th Cir. 1991).
A. Retaliatory Conduct
As a threshold matter, in order to sustain her Title VII claim, Moreno-Nicholas must show that the City engaged in some post-employment conduct that has a nexus to employment or that impinges on future employment. As the Seventh Circuit has explained in Veprinsky and Reed, not all harmful conduct by an employer towards a former employee is actionable as retaliation. A claim for retaliation under Title VII requires the former employee to prove an "employment impairment that evidences actionable retaliation."
Veprinsky, 87 F.3d at 891, quoting Reed, 939 F.2d at 493. Disclosing information about a former employee's EEOC charge and providing false information about a former employee are examples of conduct that is actionable if the conduct has a relationship to an employment impairment. See Veprinsky, 87 F.3d at 891, 894-95.
Moreno-Nicholas has identified three acts of alleged retaliation. As a matter of law, only one is actionable as post-employment retaliation under Title VII under Veprinsky.
First, Moreno-Nicholas complains that Steve Nielson's refusal to provide a reference for her constituted a negative reference that interfered with her employment prospects. As a matter of law, the City cannot be held accountable for his conduct. The record evidence shows that Nielson was unwilling to talk with OCTA's Annette Hills; that he declined to give a reference; and that he told her "no" — "you can consider that my reference." At the time of that conversation, however, Nielson was not a City employee, and he had not been a City employee for several years. There is no evidence that Nielson was acting as an agent for the City in responding to Hills' inquiry. The City therefore is not legally responsible for anything Nielson did or did not do in responding to Hills' inquiry on behalf of OCTA.
In the second and third instances, Moreno-Nicholas alleges that her former supervisor Alan Ruot retaliated against her by telling human resources consultant Michael Druan that she filed an EEOC charge and that she was not eligible for rehire because of it; and by telling OCTA that she was not eligible for rehire. Although there is evidence in the summary judgment record that Ruot made both statements, only his alleged statement to OCTA is actionable.
On this record a jury could reasonably find that Ruot told Druan in August 1997 that Moreno-Nicholas was not eligible for rehire because of her prior EEOC claim. See Druan Aff. ¶ 9; Druan Statement, Pl. Ex. 15. Ruot denies that he had any such conversation, and Moreno-Nicholas and Druan have provided conflicting evidence about the exact date of the conversation. On summary judgment, however, the court must view the evidence in the light reasonably most favorable to Moreno-Nicholas.
The uncertainty about the exact date of the conversation might affect the weight of the evidence, but it does not show as a matter of law that the conversation did not occur as Druan described it in his affidavit. Ruot's discussion with Druan, however, is not actionable itself because Moreno-Nicholas could not have suffered any adverse employment action as a result of Ruot's alleged statement to Druan. Druan was not an employer and had no intention of employing Moreno-Nicholas. He was instead a career counselor who was working on plaintiff's behalf. There is no indication that Ruot's statement to him resulted in any "employment impairment" to her. Unlike the placement firm discussed in Veprinisky, there is no evidence that Druan stopped working with Moreno-Nicholas or even had any negative impression of her based on his conversation with Ruot. See Veprinsky, 87 F.3d at 894 (commenting that former employer's disclosure of plaintiff's EEOC charge to placement firm could be actionable where firm stopped submitting plaintiff's resume to prospective employers after the disclosure). On the contrary, Druan conducted the reference check with Ruot to protect Moreno-Nicholas. He wanted to speak with Ruot so that future prospective employers would not have to deal with him. Because there is no evidence that Ruot's alleged statement to Druan was related to any employment impairment to Moreno-Nicholas, the statement on its own does not provide a basis for her Title VII claim as a matter of law.
In contrast, Ruot's statement to OCTA that Moreno-Nicholas was not eligible for rehire by the City is actionable as post-employment retaliation. Ruot admits making the statement. Moreno-Nicholas believes that she was eligible for rehire and has produced evidence that she obtained from the City that would allow a jury to find that Ruot's statement was false. In addition, a jury could reasonably infer that he made that false statement because of his desire to retaliate against her. Although Ruot's alleged later statement to Druan is not actionable itself, it provides evidence that tends to support Moreno-Nicholas' claim that Ruot acted with an unlawful retaliatory purpose when he told OCTA, a prospective employer, that Moreno-Nicholas was not eligible for rehire by the City. Ruot's alleged statement about Moreno-Nicholas' EEOC charge barring rehire, as described by Druan, was made in the same month as Ruot's conversation with Hills. The statement to Druan is therefore sufficiently close in terms of time and subject matter to support an inference of a retaliatory motive in the Hills conversation. That evidence overcomes any presumption against retaliation that might be based solely on the length of time between Ruot's last contact with plaintiff and the reference check. Because there is some evidence that Ruot made a false statement about Moreno-Nicholas to a prospective employer that ultimately did not hire her, Ruot's alleged statement has a sufficient nexus to an employment impairment to be actionable under Title VII.
B. Effects of the Alleged Retaliation
The next issue on summary judgment therefore becomes whether a reasonable jury could find on this record that Ruot's statement to OCTA caused any material harm to plaintiff. Plaintiff contends the harm to her was that OCTA declined to hire her because of Ruot's alleged false statement. This court understands Veprinsky to require that a Title VII post-employment retaliation plaintiff, like other Title VII plaintiffs, must prove that actionable discriminatory conduct caused an actual employment impairment. In Veprinsky, the Seventh Circuit emphasized the importance of actual harm to the analysis of post-employment retaliation claims in its description of its own holding and in its discussion of the likely outcome of the plaintiff's claims on remand. The court summarized: "Finally, [our holding] is consistent with our observation in Reed that a claim for retaliation under Section 704(a) requires the employee to establish `an employment impairment that evidences actionable retaliation.'" 87 F.3d at 891, quoting Reed, 939 F.2d at 493 (emphasis added).
In addition, the Seventh Circuit expressed skepticism about plaintiff Veprinsky's retaliation claim to the extent it relied on an allegation that his former employer provided false information to his subsequent employer. The court doubted whether plaintiff could prove that the alleged false information caused him any harm:
There is an unresolved question as to the extent of the inaccuracies in the information [plaintiff's former employer] provided; the actual discrepancies may not be material. There is also some doubt as to whether the purported inaccuracies resulted in any harm to Veprinsky. His complaint, for example, alleges only that the inaccuracies "jeopardized" his relationship with [plaintiff's subsequent employer]. Moreover, as [plaintiff's former employer] has pointed out on appeal, there is no evidence that [plaintiff's subsequent employer] disciplined Veprinsky, reduced his pay, fired or demoted him, or that his prospects with his new employer suffered in any way. Absent evidence that [plaintiff's former employer]'s actions resulted in some type of concrete injury to Veprinsky, this claim may ultimately fail.
Veprinsky, 87 F.3d at 894-95, citing Koelsch v. Beltone Elec. Corp., 46 F.3d 705, 709 (7th Cir. 1995) (affirming summary judgment on post-employment retaliation claim; even if conduct was actionable, plaintiff's "efforts to seek employment were not remotely impacted" where plaintiff already had received offer from prospective employer to whom retaliatory comment allegedly was made).
The Seventh Circuit's focus in Veprinsky on the question of whether plaintiff could prove an actual employment impairment is consistent with long-standing principles that limit Title VII's scope by defining the type of adverse conduct that can provide the basis for Title VII liability. "Not everything that makes an employee unhappy is an actionable adverse action." Ribando v. United Airlines, Inc., 200 F.3d 507, 511 (7th Cir. 1999), quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). Instead, an adverse action must be "materially adverse." Id; see also Veprinsky, 87 F.3d at 894. Applying this reasoning, the Seventh Circuit has held that negative performance reviews are not an adverse action under Title VII, even if a lower performance rating results in the loss of a discretionary bonus. Smart, 89 F.3d 437; Rabinovitz v. Pena, 89 F.3d 482, 488-89 (7th Cir. 1996). Without considering the motives behind the rating, the court has reasoned that a lower performance rating was not a "material" change in the terms and conditions of employment. See Rabinovitz, 89 F.3d at 488-89. Like a negative performance review that does not materially affect employment, a former employer's statement that does not materially affect a plaintiff's current or future employment prospects is not enough to support liability for retaliation under Title VII. At the same time, as a practical matter, courts must recognize that a false negative reference may be one of the most damaging forms of post-employment retaliation, and perhaps one of the most common forms of such retaliation. See generally Veprinsky, 87 F.3d at 895 (recognizing that retaliation can take many subtle forms), citing Dole v. Local 1942, Int'l Brotherhood of Elec. Workers, AFL-CIO, 870 F.2d 368, 372 (7th Cir. 1989) (retaliation against worker may take form of blacklisting, economic duress and social ostracism).
The Seventh Circuit's attention in Veprinsky to actual employment-related harm is consistent with the policy considerations that supported the extension of Title VII coverage to former employees. In Robinson v. Shell Oil, proponents of extending Title VII coverage to former employees argued that barring a former employee's claim would produce the anomalous and unjust result of allowing an employer to do to a former employee what Title VII prohibited it from doing to a current employee. See Robinson, 519 U.S. at 345-46; see also Veprinsky, 87 F.3d at 892 (discussing policy concerns and Robinson (before the Supreme Court's decision)). Allowing a former employee to proceed with a post-employment retaliation claim without evidence that the challenged conduct actually caused any harm would turn the policy behind Robinson on its head. Such an approach would provide remedies to former employees in situations where current employees would have none. See, e.g., Koelsch, 46 F.3d at 708 (affirming summary judgment on retaliation claim where no record evidence supported plaintiff's belief that there was a causal link between her sexual harassment complaint and her discharge).
To avoid summary judgment, plaintiff therefore must come forward with evidence that would allow a reasonable jury to find a causal link between Ruot's retaliatory statement to OCTA and OCTA's decision not to hire her. A plaintiff must demonstrate that the adverse action would not have occurred "but for" the plaintiff's protected conduct. See, e.g., Cullom v. Brown, 209 F.3d 1035, 1040 (7th Cir. 2000); Adusumilli v. City of Chicago, 164 F.3d 353, 363 (7th Cir. 1998); McNutt v. Board of Trustees of Univ. of Ill., 141 F.3d 706, 709 (7th Cir. 1998) ("but for" causation required for retaliation claims after 1991 Amendments to Civil Rights Act); Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1146 (7th Cir. 1997); McKenzie v. Illinois Dep't of Transportation, 92 F.3d 473, 483 (7th Cir. 1996); Johnson v. University of Wis., 70 F.3d 469, 479 (7th Cir. 1995); Klein v. Trustees of Indiana Univ., 766 F.2d 275, 280 (7th Cir. 1985); McCluney v. Jos. Schlitz Brewing Co., 728 F.2d 924, 928 (7th Cir. 1984); Sherkow v. Wisconsin Dep't of Pub. Instr., 630 F.2d 498, 502 (7th Cir. 1980).
In a number of cases, the Seventh Circuit has said that a retaliation plaintiff must show only that the protected activity and the employer's adverse action were "not wholly unrelated." See, e.g., Sauzek v. Exxon Coal USA, 202 F.3d 913, 918 (7th Cir. 2000); Hunt-Golliday v. Metropolitan Water, 104 F.3d 1004, 1014 (7th Cir. 1997); Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1314, 1315 n. 4 (7th Cir. 1989). These cases are best understood in terms of describing the evidence a plaintiff must produce to avoid summary judgment on the causation element of a retaliation claim. The question a jury must ultimately decide, however, is whether the plaintiff's protected activity was a "but for" cause of the adverse action.
Viewing the evidence in the light reasonably most favorable to plaintiff, a jury could find that OCTA decided not to hire Moreno-Nicholas as a result of the reference check. OCTA's Dean Delgado recommended that plaintiff be hired. OCTA then conducted a reference check, which resulted in a decision not to hire her based on "one of her references." See Moreno-Nicholas Dep. 135-36. (As noted above, this evidence is objectionable as hearsay, but no objection was raised, so the court considers it for present purposes.) On November 5, 1997, OCTA's Hills told an EEOC investigator that the problem with the reference check was that the individuals that Moreno-Nicholas identified did not provide sufficient information. When the investigator asked for additional details, Hills referred to Neilson's statement "no" — "you can take that as my reference." See EEOC File Memorandum. Hills said nothing to the investigator that suggests that Ruot's statement influenced OCTA's decision not to hire Moreno-Nicholas. Similarly, OCTA's follow-up letter to the EEOC does not state or suggest that Ruot's statement caused OCTA not to hire Moreno-Nicholas. Nevertheless, there are reasons to question the accuracy of OCTA's explanations, as the EEOC investigator did, especially when Druan's testimony is also considered.
The City's reply brief relies heavily on Ruot's deposition and affidavit to support the City's version of his response to OCTA's reference check. The court simply is not authorized to sort out those factual conflicts on summary judgment.
Viewed in the light reasonably most favorable to plaintiff, the evidence shows that OCTA got negative references from both Nielson and Ruot and declined to hire her based on the results of the reference check. Viewed in the same light, the evidence indicates that Ruot's negative reference was false (on the often-significant issue of whether a person is eligible for rehire) and motivated by a desire to retaliate against Moreno-Nicholas. The City has not argued that Nielson's negative reference was sufficient, at least as a matter of law, to defeat plaintiff's claim, and the court is not convinced that issue could be decided as a matter of law on this record. Accordingly, the City is not entitled to summary judgment on Moreno-Nicholas' Title VII retaliation claim.
II. Moreno-Nicholas' Defamation Claim
Plaintiff bases her defamation claim on Ruot's alleged false statement that she was not eligible for rehire. Ruot's testimony that he was speaking only for himself with respect to whether plaintiff could be rehired, see Ruot Dep. 143-44, is not enough to finesse this issue. The record before the court would therefore permit a jury to find that Ruot falsely told OCTA that plaintiff was not eligible for rehire and that he acted with the intent to retaliate against plaintiff for pursuing her prior EEOC charge and the lawsuit.
Under those facts, the City would not be entitled to take advantage of the qualified privilege that ordinarily protects former employers that provide references. See Chambers v. American Trans Air, Inc., 577 N.E.2d 612, 615-16 (Ind.App. 1991) (former employer's communication to new employer was subject to qualified privilege, but would lose its protected status if primarily motivated by ill-will or without reasonable grounds for believing statement was true). Summary judgment is denied on the defamation claim. However, the court agrees that any alleged defamation in Ruot's statements to Druan would not be actionable because Druan was acting only as an agent for plaintiff, which defeats the publication element of a defamation claim. "Although there is some authority to the contrary, the more persuasive authority holds that a publication to an agent of plaintiff who is acting at plaintiff's behest and on his behalf is tantamount to a publication to plaintiff himself, and as such does not fulfill the publication requirement."
Brockman v. Detroit Diesel Allison Div. of General Motors Corp., 366 N.E.2d 1201, 1203 (Ind.App. 1977) (affirming judgment as a matter of law; alleged slander of employee in presence of union representative did not satisfy publication element of defamation).
Conclusion
For the reasons explained above, the City of Indianapolis is not entitled to judgment as a matter of law on Moreno-Nicholas' Title VII claim or her claim for defamation. However, summary judgment is granted as to the blacklisting claim that plaintiff has abandoned. The court will confer with counsel on Friday, November 17, 2000, at 9:00 a.m to set a new trial date.
So ordered.