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Wood v. American Federation of Government Employees

United States District Court, District of Columbia

June 22, 2018

DUANE WOOD, Plaintiff
v.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, et al., Defendants

          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 Plaintiff was removed from the union after an arbitrator sustained charges that Plaintiff had wrongfully withdrawn money from Local 2798's bank accounts and encouraged members to sign a “decertification petition.”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 ...


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