Opinion
02-CV-2780(JMR/FLN)
March 11, 2004
ORDER
Plaintiff brings this action against his former employer, ESA Services, Inc. ("ESA"), alleging racial discrimination, retaliation, defamation, and violations of the Minnesota Whistleblower Act. This matter is now before the Court on defendant's motion for summary judgment. The facts are either undisputed or viewed in the light most favorable to plaintiff. Because the Court finds plaintiff failed to demonstrate a disputed material fact, defendant's motion is granted.
Plaintiff's Title VII and MHRA retaliation claims are notpleaded in the complaint, but were first alleged in plaintiff'sopposition to the summary judgment motion.
I. Background
ESA operates hotels, including a hotel located in Bloomington, Minnesota. On January 8, 2001, ESA hired plaintiff as a general manager in training, and in February, 2001, promoted him to general manager of its Bloomington hotel.
Plaintiff is a black man of Liberian descent, who had managed Speedway SuperAmerica stores. He claims to have been an Assistant Minister of Commerce in Liberia. Plaintiff managed ESA's Bloomington hotel without incident for several months.
In the summer of 2001, plaintiff sought a promotion to district manager, a position in which he would manage several hotels. He spoke to his immediate supervisor, District Manager Trevor Dulka, who suggested that he wait until he had a full year's experience as general manager, and that because he had not managed multiple hotels, he was not ready to do so. Plaintiff persisted by calling Mr. Dulka's boss, Regional Manager Gary Rumsey, to discussa promotion. When speaking to both Mr. Dulka and Mr. Rumsey, plaintiff noted there were no black district managers in theregion.
According to plaintiff, there was a point during the summerof 2001 — it is not clear whether it was before or after hisinquiry about the district manager position — when plaintiffattended a regional meeting. Mr. Rumsey also attended thismeeting. While there, plaintiff formed the impression that Mr.Rumsey ignored him and the other black general managers, and aversthat Mr. Rumsey socialized more with white general managers.
After considering plaintiff's short experience in hoteloperations, Mr. Rumsey spoke with Mr. Dulka and decided against apromotion. In August, 2001, Mr. Dulka hired John Hulet fromoutside the company as a regional manager. Mr. Hulet had no priorhotel management experience, but had managed multiple locations forTom Thumb Foods. Mr. Hulet worked with plaintiff and other general managers as part of his training. According to ESA management, this was an opportunity for Mr. Hulet to observe how one of its general managers managed the Bloomington hotel. In contrast, plaintiff viewed himself as training his boss in the hotelbusiness.
Shortly after Mr. Hulet's hire, plaintiff told him Mr. Dulkahad hired four hotel employees without proper immigrationpaperwork. Plaintiff had previously discussed his concerns aboutthis issue with Mr. Dulka. Neither Mr. Dulka nor Mr. Huletcriticized plaintiff for raising this issue, nor was he required toparticipate in any hiring he found objectionable. There is noindication any action was taken regarding plaintiff's complaintswhile at ESA.
In December, 2001, Mr. Rumsey came to Minnesota to inspectthe hotels in Mr. Hulet's district, including the Bloomington hotelmanaged by plaintiff. Two of the five rooms inspected received afailing grade. Mr. Hulet discussed the inspection and plannedimprovements with plaintiff. Two weeks later, Mr. Hulet againinspected the Bloomington hotel, finding the average room scorebelow passing levels. Mr. Hulet decided to work at the Bloomingtonhotel while plaintiff was on vacation from December 29 throughJanuary 5.
Once at the hotel, Mr. Hulet found that plaintiff had notadequately trained his assistant general manager, Philip Current.Mr. Current is African-American. Mr. Hulet found indications of poor filing and cash handling practices. To remedy these problems, he began to train Mr. Current by walking him through the property, acquainting him with ESA policies and practices, and showing himwhat needed to be done.
On January 4, 2002, as part of this training, Mr. Current andMr. Hulet counted the money in the primary and backup petty cashdrawers in the safe. Each was to contain $500 in cash. The countrevealed a shortage of $18.18 in the primary cash drawer, and ashortage of $246 in the backup drawer. There was no supportingdocumentation.
Mr. Current told Mr. Hulet he thought plaintiff had lent themoney to the previous assistant manager. Thereafter, Mr. Currentand plaintiff discussed the missing money during a telephone call, during which plaintiff told Mr. Current to tell Mr. Hulet he'dtaken the money to buy supplies. Mr. Current also asked plaintiffabout Benedict Brown, the desk clerk on duty. It appeared Mr.Brown was scheduled to run into overtime if he worked his fullshift. Plaintiff told Mr. Current he would come in later to workthe remainder of Mr. Brown's shift, and that he would "fix it" or"make it right" the next week. According to Mr. Hulet, this laststatement meant plaintiff intended to alter Mr. Brown's timecard. Given this information, Mr. Hulet consulted ESA human resources, and it was agreed Mr. Hulet and Mr. Dulka would confront plaintiffwith their concerns about the shortage of money in the safe and Mr.Brown's timecard, and terminate his employment if he did not havea satisfactory explanation.
The parties do not agree on who initiated the call, thediscussion which took place, and exactly what was said. Allmaterial disputes are resolved in plaintiff's favor.
The meeting took place on January 7, 2002. By this time, plaintiff had replaced the money in the safe. Mr. Hulet and Mr.Dulka came to the hotel and met with plaintiff and Mr. Current inthe front lobby office. Mr. Hulet told plaintiff "we believe youtook money." (Pl. Dep. 228.) When asked to explain the shortage, plaintiff said he took $246 from the backup drawer to purchasesupplies.
Mr. Hulet and Mr. Dulka were doubtful and skeptical about thisexplanation because of the large amount of money that was missingduring plaintiff's vacation, coupled with the absence of receiptsand proper paperwork. Mr. Hulet and Mr. Dulka then met privatelyin one of the hotel rooms to discuss the matter. Shortlythereafter, they asked plaintiff about Mr. Brown's shift.Plaintiff maintained he relieved Mr. Brown at 7:00 as promised, butacknowledged that Mr. Brown had remained at the hotel through theend of the shift at 11:00. Plaintiff further agreed that Mr.Brown's computer password continued in use, and his name appearedon the cashier's report envelope submitted at the end of the shift. Plaintiff acknowledged that his own password did not appear in thesystem at all on January 4, and could produce no evidence to showhe actually worked that day. Plaintiff explained he had used Mr.Brown's password and signed his name because he was filling in forhim, and that Mr. Brown had stayed at the hotel because he had cartrouble and needed a ride home. Mr. Hulet was unconvinced, andtried unsuccessfully to reach Mr. Brown for confirmation. Absentany corroboration of this account, Mr. Hulet considered it morelikely that plaintiff had told Mr. Brown to punch out at 7:00 andwork the rest of the shift off the clock — a violation of workrules.
The hotel's front desk has video equipment which might haveresolved this issue, but no tape was made January 4.
The Fair Labor Standards Act, 29 U.S.C. § 201, 216, would beimplicated if a supervisor directed an employee to work off theclock, or undercounted that employee's time.
Mr. Hulet and Mr. Dulka then discovered that, although Mr.Brown's January 4 time card reflected 40.1 hours of work, plaintiffcredited him with only 40 hours. Plaintiff was unable to explainthis discrepancy, and based on the investigation and circumstancessurrounding Mr. Brown's shift, Mr. Hulet decided to terminateplaintiff's employment. At the January 7 meeting, plaintiff andMr. Hulet signed a "counseling report" stating that the reason forplaintiff's termination was "[f]alsification of time cards" and "[a]llowing employee Ben Brown to work while not punchedin for 4 hours on 01/04/02." (PI. Ex. 12.)
Plaintiff was replaced by Anthuan Stevenson, who is alsoblack. Mr. Stevenson remained with ESA until March, 2002. Mr.Stevenson was subsequently replaced by a white manager whoseemployment with ESA ended in July, 2002. The next general manager, a man of Indian descent, left ESA in September, 2002, and wasreplaced by the current manager, who is black. (Affidavit of JohnHulet, ¶ 17.)
II. Analysis
A. Summary Judgment
Summary judgment is appropriate when the evidence, viewed inthe light most favorable to the nonmoving party, presents nogenuine issue of material fact. Rule 56 of the Federal Rules ofCivil Procedure (" Fed.R.Civ.P."); Celotex Corp. v. Catrett, 477U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246 (1986). The party opposing summary judgment may not restupon the allegations set forth in its pleadings, but must producesignificant probative evidence demonstrating a genuine issue fortrial. See Anderson. 477 U.S. at 248-49; see also Hartnagel v. Norman. 953 F.2d 394, 395-96 (8th Cir. 1992). "[T]he mere existenceof some alleged factual dispute between the parties will not defeatan otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."Anderson, 477 U.S. at 247-48 (emphasis omitted). If the opposingparty fails to carry that burden, or fails to establish theexistence of an essential element of its case on which that partywill bear the burden of proof at trial, summary judgment should begranted.See Celotex, 477 U.S. at 322.
B. Race Discrimination
Title VII of the Civil Rights Act of 1964 prohibits anemployer from "discriminat[ing] against any individual with respectto his compensation, terms, conditions or privileges of employment, because of such individual's . . . race [.] " 42 U.S.C. § 2000e-2(a)(1). Such discrimination is also barred by the Minnesota HumanRights Act ("MHRA"), Minn. Stat. § 363.03, subd. 1(2)(c).
The Court analyzes this case by applying the familiarMcDonnell Douglas burden-shifting analysis to plaintiff'sdiscrimination and retaliation claims under both Title VII and theMHRA. Putman v. Unity Health Sys., 348 F.3d 732, 735 (8th Cir. 2003), citing McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802-03 (1973) andTexas Dept. of Community Affairs v. Burdine, 450 U.S.248, 253-54 (1981); Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (MHRA). Therefore, plaintiff must firstestablish a prima facie case, at which point the employer mustarticulate a legitimate nondiscriminatory or nonretaliatory reasonfor its action. To survive summary judgment, plaintiff must establish both his prima facie case and raise a question of fact asto whether the employer's stated reason is a pretext fordiscrimination or retaliation. See Hossaini v. Western MissouriMedical Center, 97 F.3d 1085, 1088 (8th Cir. 1996).
In order to establish a prima facie case, plaintiff must showhe suffered an adverse employment action. Lederqerber v. Stanqler, 122 F.3d 1142, 1144 (8th Cir. 1997). Not everything that makes anemployee unhappy qualifies. Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997). For example, plaintiff'sassertion that Mr. Rumsey did not socialize with him or invite himto lunch is simply too trivial and attenuated to support a claim ofdiscrimination. See Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997) (supervisors' "hostility and personalanimus" not an adverse employment action). If established, however, plaintiff's failure-to-promote, termination, andretaliation claims are more serious, and can rise to the level ofadverse employment actions. Each will be addressed in turn.
1. Failure to Promote
To establish a prima facie case, a plaintiff must show (1) heis a member of a protected group; (2) he was qualified for andapplied for a promotion to a position for which the employer wasseeking applicants; (3) that despite his qualifications, he wasrejected; and that (4) other employees of similar qualificationswho were not members of a protected group were promoted at the time plaintiff's request for promotion was denied. Lyoch v. Anheuser-Busch Cos. Inc., 139 F.3d 612, 614 (8th Cir. 1998). Here, the onlyissue in dispute is whether plaintiff was qualified for theposition. The Court assumes he can establish the otherqualifications necessary for a prima facie case. See Crone v. United Parcel Service, Inc., 301 F.3d 942, 944 (8th Cir. 2002).
Even if he has established a prima facie case, ESA hasarticulated a legitimate, nondiscriminatory reason for rejectinghis application.Lyoch, 139 F.3d at 614. The burden for doing sois "not onerous," and is easily satisfied by showing thatplaintiff, even if qualified, was a poor fit, or another candidatewas a better fit for the job. See Floyd v. Missouri Dept. ofSocial Servs., 188 F.3d 932, 936 (8th Cir. 1999) (plaintiff lackedmanagement ability);Enowmbitnang v. Seagate Tech., 148 F.3d 970, 973 (8th Cir. 1998) (other candidates had higher college grade pointaverages); Kobrin v. Univ. of Minnesota, 121 F.3d 408, 411 (8th Cir. 1997) (other candidates more qualified);Price v. Federal ExpressCorp., 283 F.3d 715, 722 (5th Cir. 2002) (other candidate haddesired background in law enforcement). ESA states it rejectedplaintiff's application because the position required the abilityto manage multiple locations simultaneously, and plaintiff hadneither prior experience nor the judgment of his supervisor that hewas ready to do so.
It is here that plaintiff's case falters; when faced with ESA's proffered legitimate nondiscriminatory reason, plaintiffcannot demonstrate the reason is a pretext for discrimination.He does not dispute he had never managed multiple locationssimultaneously, that his supervisor did not believe he was readyto do so, and that the candidate ultimately selected had thisexperience. Compare Crone, 301 F.3d at 944-45 (no pretext wheresupervisor and employee acknowledged employee's lack ofconfrontational skills needed for position). Through testimonyabout his education and experience, plaintiff may have established, at most, that he and Mr. Hulet were similarly qualified. This doesnot establish pretext.Floyd, 188 F.3d at 937; Price, 283 F.3d at 723. His performance reviews reflect he was an adequate general manager, and do not reflect ESA's judgment that he was ready forpromotion. Contrast Lyoch, 139 F.3d at 615 (company ignoredsupervisor's recommendation to promote employee).
The Court notes it was only at his deposition that plaintiffclaimed for the first time that he managed multiple locationssimultaneously while an Assistant Minister of Commerce in Liberia.This experience, if it occurred, is not reflected on his resume, nor does he claim he made ESA aware of it when he applied for thepromotion.
The threshold question when considering pretext is whether theemployer's reasons are true — not whether they are "wise, fair, orcorrect." Dorsev v. Pinnacle Automation Co., 278 F.3d 830, 837 (8th Cir. 2002) (interpreting ADEA). Absent evidence of discrimination,"[c]ourts do not sit as super-personnel departments to second-guess the business decisions of employers [,]" id., and the Court declinesto do so here.
There is no genuine dispute of material fact on whether ESAfailed to promote plaintiff for discriminatory reasons; therefore, summary judgment is appropriate on this claim.
2. Termination
Plaintiff's termination claim is also analyzed under theMcDonnell Douglas framework. Here, plaintiff must show (1) hebelongs to a protected class; (2) he was qualified for his job; (3)he was discharged; and (4) that subsequent to discharge, he wasreplaced by a person with similar qualifications. Putman, 348 F.3d at 736. To satisfy the fourth element, plaintiff need not show hewas replaced by a white employee, but only that his dischargeoccurred in circumstances that raise an inference of unlawfuldiscrimination. Davenport v. Riverview Gardens School Dist., 30 F.3d 940, 944-45 (8th Cir. 1994); Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir. 1994). ESA, again, may articulate alegitimate, non-discriminatory reason for its action, in which casethe burden shifts back to plaintiff to establish that this reasonis a pretext for discrimination. Hannoon v. Fawn EngineeringCorp., 324 F.3d 1041, 1046 (8th Cir. 2003). The Court assumes forsummary judgment purposes that plaintiff has established a primafacie case.Id.
ESA states it terminated plaintiff's employment because of a series of management problems — a failed inspection, aquestionably-explained shortage in petty cash, and a poorly-trainedassistant manager left in charge while plaintiff was on vacation followed by events suggesting plaintiff directed a desk clerk topunch out in the middle of his shift, and later deliberatelyunderreported the clerk's time. Violations of company policy andpoor performance are legitimate, nondiscriminatory reasons fortermination. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. en banc) (interpreting ADA and collecting cases), cert. denied 528 U.S. 818 (1999);Euerle-Wehle v. United Parcel Service. 181 F.3d 898, 900 (8th Cir. 1999).
Faced with these proffered legitimate non-discriminatoryexplanations, plaintiff addresses himself only to the allegation oftimecard fraud, arguing this reason is pretextual because he didnot order the desk clerk to punch out in the middle of his shift onJanuary 4, but instead came in to personally relieve him.Plaintiff asserted this argument during ESA's investigation, butMr. Hulet did not believe this version of events. Instead, herelied on computer and paper records suggesting the desk clerkcontinued to work after clocking out.
It is immaterial whether Mr. Hulet's determination thatplaintiff violated company policy was factually correct. Thequestion is whether ESA acted reasonably and in good faith inconducting its investigation, and reasonably believed plaintiff had committed the violations. See Euerle-Wehle, 181 F.3d at 900; Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 n. 2 (8th Cir. 1994). Because plaintiff has produced no evidence showing ESAbelieved Mr. Hulet's conclusion was anything other than accurate, he has failed to raise a question of material fact regarding itsmotivation. See Stuart v. General Motors Corp., 217 F.3d 621, 637(8th Cir. 2000).
Even if the Court accepts plaintiff's version of the January 4 events, he has failed to make any showing that discrimination wasthe real reason he was fired. See Euerle-Wehle, 181 F.3d at 900; Flovd, 188 F.3d at 937. He admits his hotel failed inspections inthe months before he was fired; that he failed to train hisassistant general manager; and that there was an undocumented andunresolved petty cash shortage at the time of his Decembervacation.
He has failed to identify any similarly-situated white general managers who were afforded more favorable treatment after a seriesof comparable management problems. Nor does he dispute that hisreplacement was black, and that in the nearly two years since histermination, the Bloomington hotel has seen a series of general managers of different races. The Court finds plaintiff has raisedno triable question of material fact as to whether he wasterminated because of his race.
Although not properly pleaded, the Court will consider theseclaims.
The McDonnell Douglas analysis also applies to claims ofretaliation. To make a prima facie showing of retaliation underTitle VII or the MHRA, plaintiff must establish by a preponderanceof the evidence that (1) he engaged in a statutorily-protectedactivity; (2) he suffered an adverse employment action; and (3)there was a causal connection between the two. Rheineck v. Hutchinson Technology, Inc., 261 F.3d 751, 757 (8th Cir. 2001). Asbefore, the burden then shifts to ESA to produce a legitimate, non-retaliatory reason for the termination. Id., citing Montandon, 116 F.3d at 359. If ESA provides a legitimate, non-retaliatory reasonfor the termination, the burden shifts back to plaintiff todemonstrate that the articulated reason is pretextual. Rheineck, 261 F.3d at 757.
Here, the Court finds plaintiff failed to establish a primafacie case. Assuming his informal observation in the summer of2001 of there being no black district managers in the regionconstitutes protected activity, there still remains no evidence itled to Mr. Pope's termination. Where a plaintiff's employment isterminated shortly after a complaint, a court may infer aretaliatory motive, but a significant lapse of time weakens thisinference. See Kipp v. Missouri Highway and Transp. Commn., 280 F.3d 893, 897 (8th Cir. 2002) (a two month lapse destroys inferenceof causation). Generally, more than a temporal connection isneeded to establish an issue of fact on causation.Id.
Here, intervening time and events fatally weaken any inferenceof causation. The supervisor who fired plaintiff in January, 2002, had not even been hired when plaintiff made his observations to Mr.Dulka and Mr. Rumsey in the summer of 2001. There is no evidencewhatsoever that anyone involved in the termination decision knew ofor remembered plaintiff's informal comments at all, much less madethem the basis for the decision.
For the reasons discussed above, even if plaintiff were toestablish a prima facie case of retaliation, he has not establishedan issue of fact sufficient to overcome ESA's legitimate, nonretaliatory reason for firing him. Accordingly, his retaliationclaims fail.
B. Whistleblower Act
Plaintiff finally claims violations of the Minnesota Whistleblower Act, Minn. Stat. § 181.932. The analysis of thisclaim is also conducted under the McDonnell Douglas rubric. Kunferman v. Ford Motor Co., 112 F.3d 962, 965 (8th Cir. 1997), citing Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983). Plaintiff claims ESA fired him because of hiscomplaints to his supervisors about hiring undocumented workers.
As of the date of argument, plaintiff has still not amendedhis complaint to supply the factual allegations which may underliehis Whistleblower claim. ESA knew of plaintiff's assertions atleast as early as his deposition. As a result, ESA does not claimprejudice. The Court, however, makes clear it disapproves of plaintiff's unwarranted delay in amending his pleadings prior tosummary judgment. This having been noted, it has no effect on thedecision in this case.
This claim fails, because plaintiff can establish neither aprima facie case nor a question of fact as to pretext. In thisanalysis, the Court assumes, without deciding, that plaintiff'scomplaints would rise to the level of a report under theWhistleblower Act. See Coklev v. City of Otseao. 623 N.W.2d 625, 630 (Minn.Ct.App. 2001). Even so, there is no evidence ofcausation.
The undocumented alien employment violations in questionoccurred at some point prior to Mr. Hulet's hire, and plaintiffclaims he complained about them to then-supervisor Mr. Dulka.Plaintiff claims Mr. Dulka did nothing in response to thesecomplaints. When Mr. Hulet was hired in August, 2001, plaintiffreiterated his concerns to his new supervisor. Mr. Hulet took noaction, and in any event did not fire plaintiff for more than fourmonths, a significant lapse of time. See Kunferman, 112 F.3d at965.
Finally, even if he could establish his prima facie case, hisclaim would fail. This is because, as above, he is unable to showthat ESA's legitimate, nonretaliatory reason for firing him ispretextual.
D. Defamation
Plaintiff alleges two counts of defamation: first, that ESA"managers and officials" told "third parties" he was terminated fortimecard fraud (Complaint ¶ 33); and second, that he was compelledto publish this statement to others (Complaint ¶ 39). At hisdeposition, plaintiff alleged a third defamatory statement: that, while investigating the petty cash shortage on January 7, Mr. Huletstated "[w]e believe you took money" in the presence of others.(PI. Dep. at 228).
A defamation claim must be pleaded with specificity, meaningplaintiff must allege who made the statements, to whom, and where. Schibursky v. International Bus. Mach. Corp., 820 F. Supp. 1169, 1181 (D. Minn. 1993) (citation omitted) (dismissing defamationclaim where plaintiff did not identify, among other things, whichemployees of defendant had made statements). Plaintiff has neitheralleged, nor come forward with evidence, that any individual at ESAever told any identifiable third party he was terminated fortimecard fraud. Accordingly, any claim based on an allegedstatement by an ESA employee regarding timecard fraud is dismissedfor lack of specificity and as a matter of law.
To prevail on his remaining defamation claims under Minnesotalaw, plaintiff must establish that ESA (1) published a statement offact, (2) of and concerning him, (3) which was false, and (4)damaged his reputation and lowered his estimation in the community. Toney v. WCCO Television, 85 F.3d 383, 386 (8th Cir. 1996); Stuempqes v. Parke, Davis Co., 297 N.W.2d 252, 255 (Minn. 1980). Truth is a complete defense, and true statements, howeverdisparaging, are not actionable. Stuempqes, 297 N.W.2d at 255.Plaintiff's claims will survive summary judgment if the statementsat issue are either false, or true and "capable of beinginterpreted as defamatory." Toney, 85 F.3d at 386.
Mr. Hulet's statement "we believe you took money" is literallytrue; it accurately reflects Mr. Hulet's belief, and plaintiff hasadmitted he did, in fact, take money from the safe to payexpenses. Words "must be given their obvious and naturalmeaning," Toney, 85 F.3d at 392, and first among the many meaningsof "take" is "to get into one's possession by force, skill orartifice." American Heritage Dictionary, 2d Coll. Ed. (1982).Viewed in the light most favorable to plaintiff, the statement'scontext (an investigation of missing cash) could make thestatement capable of being interpreted as an accusation oftheft, and therefore potentially defamatory even if true.The Court further assumes a statement in the hotel frontoffice in the presence of an employee unfamiliar with the events would be sufficient publication.
Truth as a defense must "go to the underlying implication of[a] statement," that is, whether plaintiff actually took the money.Lewis v. Equitable Life Assurance Society, 389 N.W.2d 876, 888-889 (Minn. 1986).
The statement was made in front of Kathy Bengston and PhilipCurrent. Mr. Current, through his count of the petty cash drawersand conversations with plaintiff, already knew about the missingmoney and was a source of information in the investigation. Underthese conditions, it is difficult to consider a statement made infront of Mr. Current as being an actionable publication.
Even if defamatory, a statement is not actionable if made ingood faith, on a proper occasion and for a proper purpose, and ifbased on reasonable or probable cause. Stuempges, 297 N.W.2d at 256-57 (Minn. 1980). Investigating employee misconduct is a properpurpose and occasion for an employer, McBride v. Sears, Roebuck Co., 235 N.W.2d 371, 374 (Minn. 1975). The privilege is lost ifabused. Lewis v. Equitable Life Assurance Society, 389 N.W.2d 876, 890 (Minn. 1986).
Here, Mr. Hulet's statement "we believe you took money" isprotected by a qualified privilege. Mr. Hulet was investigatingmoney which had disappeared from the safe in the hotel whileplaintiff was on vacation. Plaintiff was responsible for countingthe safe and was authorized to remove money from the safe to payexpenses. At the time of Mr. Hulet's statement, he had spoken to Mr. Current, had heard (via Mr. Current) plaintiff's explanation, and had seen the absence of receipts or documentation. The Courtfinds Mr. Hulet had cause to believe plaintiff had taken the moneyfrom the safe.
ESA's reasons for termination are similarly protected. For purposes of this motion, the Court assumes that, although ESA didnot directly communicate its reasons for termination to any thirdparty, it could foresee plaintiff would be compelled to tellprospective employers he was terminated for "timecard fraud."SeeLewis, 389 N.W.2d at 888. Nonetheless, ESA has a qualifiedprivilege to accurately communicate to plaintiff's potential futureemployers the reasons for his termination. Stuempges, 297 N.W.2d at 257. Based on his investigation of Mr. Brown's shift on January 4, Mr. Hulet had probable cause to believe plaintiff hadparticipated in falsifying a timecard and in directing an employeeto work off the clock.
Once the privilege applies, as the Court finds it does, plaintiff must prove malice. Stuempqes, 287 N.W.2d at 256-57.Malice is "`actual ill-will or a design causelessly and wantonly toinjure plaintiff[,]'" and may be shown by "extrinsic evidence ofpersonal spite" as well as by the character of the language used, the mode and extent of publication, or other matters in excess ofthe privilege." Bol v. Cole, 561 N.W.2d 143, 150 (Minn. 1997) (citation omitted).
Here, no reasonable jury could find malice. Perhaps thiscount of plaintiff's complaint might have been avoided if Mr. Hulethad been more sensitive to plaintiff's privacy or more circumspectin his language, but nothing in the record suggests his statementswere motivated by spite or ill-will toward plaintiff.
Accordingly, neither of plaintiff's remaining defamationclaims survive summary judgment.
III. Conclusion
For all of the foregoing reasons, defendant's motion forsummary judgment [Docket No. 18] is granted, and this action ishereby dismissed.
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.Dated: March 11, 2004