MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
Plaintiff,
proceeding pro se, brings this action against
Defendants American Federation of Government Employees
(“AFGE”) and Nathaniel Nelson, an AFGE National
Representative. Plaintiff was formerly an AFGE union member
and the Executive Vice President of AFGE Local 2798.
Plaintiff was removed from the union after an arbitrator
sustained charges that Plaintiff had wrongfully withdrawn
money from Local 2798's bank accounts and encouraged
members to sign a “decertification petition.” In
this lawsuit-as narrowed by the Court's earlier ruling on
Defendants' Motion to Dismiss-Plaintiff claims that
Defendant Nelson defamed him in an email Mr. Nelson sent to a
group of AFGE union members, officers and staff in November,
2015.
Before
the Court is Defendants' [38] Motion for Summary
Judgment. Upon consideration of the pleadings, [1] the relevant
legal authorities, and the record for purposes of this
motion, the Court GRANTS Defendants' Motion. There are no
genuine disputes of material fact with respect to the truth
of any statement in Mr. Nelson's e-mail, or with respect
to the applicability of qualified privilege to that e-mail.
Defendants are entitled to judgment as a matter of law. This
case is DISMISSED.
I.
BACKGROUND
This
case was narrowed considerably when the Court granted-in-part
and denied-in-part Defendants' Motion to Dismiss.
See June 15, 2017 Mem. Op. & Order, ECF Nos. 9,
10. Most importantly, this case no longer includes claims
about supposed unfair labor practices. At this stage, all
that remains in Plaintiff's lawsuit is a defamation claim
based on a November 30, 2015 e-mail authored by Mr. Nelson.
That e-mail contained the subject line “No Early
Christmas Bonus for the Duane Wood Gang of crooks.”
Defs.' Mot., Ex. 4, at 0042. In its entirety, it reads as
follows:
During the Thanksgiving holidays, I received a flood of
telephone calls from outraged members of local 2798
indicating that Duane Wood, Carroll Wallace, and the
appointed Vice President had entered into a conspiracy to
illegally appoint Duane Wood as a shop steward without
notifying the Trustee or anyone else in District 14. The
trustee was on vacation during this time and she left a clear
message for all of her locals to call me in her absence for
all union business. I did not receive a single phone call
from the acting vice President or Carroll Wallace about
permitting Duane Wood to perform shop steward duties. A
federal arbitrator banned Duane Wood from holding any union
office for 10 years and he must pay back the $1, 600.00
before he can be a member. Members reported that Duane Wood
was permitted to go in the union office (with his feet on top
of a desk) and pass out union information to the members.
Both Carroll Wallace and the acting Vice president knew Duane
Wood was banned from union activities because they both
participated with Duane Wood for the purpose of attempting to
decertify local 2798. It was reported that In an exercise of
its discretion, the Court finds that holding oral argument in
this action would not be of assistance in rendering a
decision. See LCvR 7(f). Mr. Wood was permitted to
destroy all of the negative information pertaining to him
that were stored in the union office. He also used his IT
ability to erase the arbitration decision from certain
computers and block access to other computers. I just happen
to have a copy of the arbitration decision that I had saved
on a flash drive. I have forwarded a copy of this decision to
Trustee Octavia Hall and NVP Bunn. I am recommending to the
Trustee that charges be filed against Carroll Wallace and the
Acting Vice President. Members further told me that Duane
Wood and Carroll Wallace's primary goal was to raid the
bank account of local 2798 because they knew local 2798 had a
lot of money. There will not be an early Christmas Bonus for
any of these gang members because they have proven that they
can't be trusted with the check book or credit card.
Please do not believe the rumors that Duane Wood has been
officially appointed as a shop Steward because it is a lie. I
thank everyone who reported this activity to me.
Id. This e-mail was sent to following individuals:
Eric Bunn, Andrea Hall, Veronica Edmonds, Stanley Snow, and
Octavia Hall. Id.; see also Defs.'
Mot., Ex. 2 (April 20, 2017 Depo. of Nathaniel Nelson)
(“Nelson Depo.”), at 60:9-12. All of these
individuals were either officers, employees or members of
AFGE. See Nelson Depo. at 60:13-61:22; see
also Defs.' Mot., Ex. 1 (April 20, 2017 Depo. of
Duane Wood) (“Wood Depo.”), at 22:4-26:14. One of
the recipients, Octavia Hall, forwarded the e-mail to two
other individuals, both of whom were also union
representatives. See Defs.' Mot., Ex. 4, at
0043; Wood Depo. at 78.
Plaintiff
claims that Mr. Nelson's e-mail defamed him. Defendants
contend, among other things, that the statements in the
e-mail are all true, substantially true or, at most,
hyperbole. They also contend that the e-mail is protected by
privilege because Mr. Nelson and the e-mail's recipients
all shared a common interest in the supposed wrongdoing of
individuals related to the union and that Plaintiff consented
to being the subject of such e-mails by voluntarily joining
AFGE and running for office. Defendants have moved for
summary judgment, Plaintiff has filed a lengthy response, and
Defendants have filed a reply. Defendants' motion is
accordingly ripe for resolution.
II.
LEGAL STANDARD
Summary
judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The mere existence of some
factual dispute is insufficient on its own to bar summary
judgment; the dispute must pertain to a
“material” fact. Id. Accordingly,
“[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor
may summary judgment be avoided based on just any
disagreement as to the relevant facts; the dispute must be
“genuine, ” meaning that there must be sufficient
admissible evidence for a reasonable trier of fact to find
for the non-movant. Id.
In
order to establish that a fact is or cannot be genuinely
disputed, a party must (a) cite to specific parts of the
record-including deposition testimony, documentary evidence,
affidavits or declarations, or other competent evidence-in
support of its position, or (b) demonstrate that the
materials relied upon by the opposing party do not actually
establish the absence or presence of a genuine dispute.
Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without
any factual basis in the record cannot create a genuine
dispute sufficient to survive summary judgment. See
Ass'n of Flight Attendants-CWA, AFL-CIO v. Dep't of
Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).
Moreover, where “a party fails to properly support an
assertion of fact or fails to properly address another
party's assertion of fact, ” the district court may
“consider the fact undisputed for purposes of the
motion.” Fed.R.Civ.P. 56(e).
When
faced with a motion for summary judgment, the district court
may not make credibility determinations or weigh the
evidence; instead, the evidence must be analyzed in the light
most favorable to the non-movant, with all justifiable
inferences drawn in its favor. Liberty
Lobby, 477 U.S. at 255. If material facts are
genuinely in dispute, or undisputed facts are susceptible to
divergent yet justifiable inferences, summary judgment is
inappropriate. Moore v. Hartman, 571 F.3d 62, 66
(D.C. Cir. 2009). In the end, the district court's task
is to 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.” Liberty Lobby, 477 U.S. at
251-52. In this regard, the non-movant must “do more
than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted.” Liberty Lobby, 477 U.S. at 249-50
(internal citations omitted).
III.
DISCUSSION
The
Court will grant Defendants' Motion for Summary Judgment.
Under District of Columbia law, a plaintiff asserting
defamation must establish four elements: “(1) that the
defendant made a false and defamatory statement concerning
the plaintiff; (2) that the defendant published the statement
without privilege to a third party; (3) that the
defendant's fault in publishing the statement amounted to
at least negligence; and (4) either that the statement was
actionable as a matter of law irrespective of special harm or
that its publication caused the plaintiff special
harm.” Oparaugo v. Watts, 884 A.2d 63, 76
(D.C. 2005) (quoting Crowley v. North Am. Telecomms.
Ass'n, 691 A.2d 1169, 1173 n.2 (D.C. 1997)). Based
on the undisputed factual record, Defendants are entitled to
judgment as a matter of law on at least two of these
elements. First, there is no genuine dispute about the facts
relevant to whether qualified privilege applies to Mr.
Nelson's e-mail. The e-mail is privileged as a matter of
law. Second, the Court has exhaustively reviewed the record
in this case and concludes that there are no genuine disputes
of fact relevant to the truth or falsity of the statements in
Mr. Nelson's e-mail. The only evidence presented
indicates that they were all true, substantially true or, at
most, hyperbole.
Plaintiff's
Response to Defendants' Motion for Summary Judgment
raises numerous irrelevant issues, quibbles over
inconsequential perceived discrepancies, and makes conclusory
allegations without basis in the evidentiary
record.[2] Although such allegations may have been
sufficient at the pleading stage, at the summary judgment
stage Plaintiff was required to present record evidence in
support of his allegations. See Montgomery v. Risen,
197 F.Supp.3d 219, 262 (D.D.C. 2016), aff'd, 875
F.3d 709 (D.C. Cir. 2017) (“conclusory statements
unaccompanied by supporting facts in the record are
insufficient to defeat a motion for summary
judgment.”); see also Nov. 21, 2017 Order, ECF
No. 39 (warning Plaintiff about his evidentiary burden when
opposing Defendants' summary judgment motion). He has not
done so.
A.
Qualified Privilege
Plaintiff's
defamation claim cannot survive the summary judgment stage
because, based on the undisputed record, Mr. Nelson's
e-mail is protected by qualified privileged. First, the e-
mail is protected by the qualified common interest privilege.
“A statement is protected by the common interest
privilege if it is ‘(1) made in good faith, (2) on a
subject in which the party communicating has an interest, or
in reference to which he has or honestly believes he has a
duty (3) to a person who has such a corresponding interest or
duty.'” Payne v. Clark, 25 A.3d 918, 925
(D.C. 2011) (quoting Moss v. Stockard, 580 A.2d
1011, 1024 (D.C. 1990)). “Whether a statement is
privileged is a question of law.” Id.
“Where the court determines that the common interest
privilege is applicable, ‘the defendant will be
presumed to have been ...