that taking or passing a lie detector test were preconditions to his reinstatement and continued employment, as Mr. del Canto's own deposition testimony demonstrates. To the extent that there is any significance to the assertion that the Union and Mr. Richardson rather than the hotel, proposed the test, that proposal, if it was made, was made in the interests of Mr. del Canto and not in the interests of the hotel.
For example, the hotel would have preferred a polygraph examiner that would have cost less money but, on Mr. del Canto's behalf, the Union insisted on a polygraph examiner who was more expensive but one in whom it, on Mr. del Canto's behalf, had greater confidence. The fact that the Union was able to persuade the hotel to use that examiner in no way supports, indeed it contradicts, the notion that the Union was acting directly or indirectly in the interests of the employer. The Union and Mr. Richardson were acting in the interests of Mr. del Canto. They therefore are not covered persons under the Employee Polygraph Protection Act.
B. The Defamation Claim
Plaintiff alleges that Mr. Richardson published statements that Mr. del Canto committed theft and was a liar and that such statements are defamatory per se. Under the case law in this jurisdiction, Plaintiff would have to prove that such a statement was made, that it was false, that it was defamatory, and that it was published with some degree of fault. Washington v. State Farm Fire and Casualty Company, 629 A.2d 24 (D.C. App. 1993); Vereen v. Clayborne, 623 A.2d 1190 (D.C. App. 1993); Moss v. Stockard, 580 A.2d 1011 (D.C. App. 1990). The undisputed facts demonstrate that Mr. Richardson never said that Plaintiff was a liar or a thief. No statement having been made or published, there can be no defamation.
The Court has already discussed the fact that even when one indulges all inferences in favor of the Plaintiff, the Hunt letter does not indicate by its terms, or by any inferences that can legitimately be drawn from it, that Mr. Richardson made a statement to Mr. Hunt alleging or suggesting that Mr. del Canto was a thief or a liar. Despite some reference during oral argument to the fact that counsel for Plaintiff has had conversations with Mr. Hunt about these matters and that those conversations provide further support for the allegations of defamation, counsel has not submitted any affidavit or declaration from Mr. Hunt that would lend support to Plaintiff's assertions about a conversation or conversations between Mr. Hunt and Mr. Richardson. Nor was there ever a deposition of Mr. Hunt. Whatever Mr. Hunt may or may not have said to counsel for Plaintiff suggesting that there is more than appears in his letter to support the allegation that Mr. Richardson made such statements, that evidence is not before the Court.
In a motion for summary judgment the Court is limited to considering, in the light most favorable to the non-moving party, only those materials that have been submitted as exhibits, affidavits or depositions. The party opposing summary judgment may not rest on mere allegations in the face of affidavit evidence but must set forth specific facts showing that there is a genuine issue for trial. Rule 56(e), Fed. R. Civ. P. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 259, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Laningham v. U.S. Navy, 813 F.2d at 1242-44. On the record before the Court, there is no evidence that Mr. Richardson ever made the statements attributed to him, directly or by implication, to Mr. Hunt.
With respect to an alleged statement by Mr. Hopkins, whatever Mr. Hopkins may have said cannot be attributed to Mr. Richardson or to any other Union representative because Mr. Hopkins was an employee of the hotel, not the Union. Moreover, when one looks specifically at what it is that Plaintiff asserts that Mr. Hopkins said, one does not find a false and defamatory statement. The affidavit of Mr. Cueva, submitted by Plaintiff, says only that Mr. Hopkins approached Mr. Cueva in the hallway of the lower lobby of the Sheraton Carlton on December 18, 1991, and told him, "I'm glad to see you here. But we were putting the money on you, that you will be the one to get caught, not Ricardo." Cueva Aff. P 4. Mr. Cueva says he responded, "I haven't done anything." Id. P 5. Mr. Cueva further states: "At the time Mr. Hopkins made these statements to me I had no knowledge of what Mr. Hopkins was referring to about del Canto." Id. P 6. The Court cannot find that the statements by Mr. Hopkins to Mr. Cueva were false and defamatory statements or that, even if they were, they could be attributed to the Union or to Mr. Richardson. See Vereen v. Clayborne, 623 A.2d at 1195; Moss v. Stockard, 580 A.2d at 1023.
On the other hand, Mr. del Canto's own testimony at his deposition is that he had no information that Mr. Richardson said anything to anyone that would suggest that he was a thief or a liar or that anyone else ever told him that Mr. Richardson or any other Union representative accused him of lying about the events or stealing property from the hotel. On this record, there are no genuine issues of material fact in dispute on the defamation claim.
The remaining count in the complaint is a conspiracy count. Under both federal and District of Columbia law, civil conspiracy is not actionable in and of itself. It is not a separate tort. Riddell v. Riddell Washington Corp., 275 U.S. App. D.C. 362, 866 F.2d 1480, 1493-1494 (D.C. Cir. 1989); Halberstam v. Welch, 227 U.S. App. D.C. 167, 705 F.2d 472, 476-78 (D.C. Cir. 1983); ILC Corp. v. Latino Newspaper, Inc., 747 F. Supp. 85 (D.D.C. 1990). Rather, it is an agreement to participate in an unlawful act or a lawful act in an unlawful manner. And it is only where means are employed or purposes are accomplished which are themselves tortious or done in an unlawful manner, with an overt act undertaken by one of the conspirators that there is a conspiracy. Halberstam v. Welch, 705 F.2d at 479.
Having concluded that there is no cause of action in this case either under the Employee Polygraph Protection Act or under the common law of defamation, it necessarily follows, as Plaintiff's counsel conceded during oral argument, that the conspiracy count falls as well. The Court therefore grants judgment for Defendants on the conspiracy claim as well as on the claims under the Employee Polygraph Protection Act and the common law of defamation.
In view of the foregoing, the Court GRANTS Defendants' motion for summary judgment, denies Plaintiff's motion for summary judgment, and enters judgment on all counts in favor of Defendants.
PAUL L. FRIEDMAN
United States District Judge
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