DUCKER v. AMIN et al

Filing 65

ORDER - Both of Plaintiff's claims rest on logical ground that is ultimately too weak to support them: the contention that Amin's email--which revealed about her only the possibility that she might be a female--identified her to a suf ficient degree to be actionable on any theory. This deficiency is fatal to both claims, and Defendant's motion for summary judgment [Dkt. 40 ] is therefore GRANTED as to both claims, and judgment will enter accordingly. Signed by Judge Sarah Evans Barker on 3/14/2014. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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STACEY DUCKER a married woman,
Plaintiff,
vs.
DEVANG AMIN,
Defendant.

No. 1:12-cv-01596-SEB-DML

ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This cause comes before the Court on Defendant Devang Amin’s Motion for Summary
Judgment [Docket No. 40], filed on August 29, 2013 pursuant to Federal Rules of Civil
Procedure 56. For the reasons set forth below, the motion is GRANTED.
Factual Background
Plaintiff Stacey Ducker, a resident of Georgia, is a former employee of Best Western
International (“BWI”), a worldwide hotel chain. Compl. ¶ 6. Unlike most franchise-based
organizations of its type, BWI is a non-profit corporation. Hotels within the chain are
individually owned and operated, and are referred to as BWI “members.” Def.’s Br. 2, ¶¶ 2–4.
The corporation’s Board of Directors consists of BWI members, each representing a geographic
district; the director for each district additionally appoints a group of “governors” (also BWI
members) to oversee operations in that geographic area. Id. In 2006, after twelve years with the
company, Ducker left her position at BWI and started her own company, Sapphire Sales
Solutions, LLC (“Sapphire Sales”). Sapphire Sales works as an independent contractor providing
consultation services to hotels. Compl. ¶ 6.

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In 2007, Sapphire Sales entered into a two-year agreement with BWI to provide “onboarding” consulting services to new and existing Best Western member hotels. This contract
was renewed in 2009 and 2011, each time for an additional term of two years. Def.’s Br. 4, ¶¶
10, 11. As part of Sapphire Sales’s contract with BWI, Plaintiff was party to a Confidentiality
Agreement authorizing Sapphire Sales and its employees to possess certain BWI confidential
information and trade secrets. Pl.’s Resp. ¶ 3.
Defendant Devang Amin, a resident of Franklin, Indiana, owns and operates three Best
Western hotels, making him a member of BWI. At the time these events took place in 2012,
Amin was the chairman of BWI’s Board of Directors and the director of BWI’s “District III”—
an area covering most of the American Midwest and Ontario. Def.’s Br. ¶¶ 5–6. On March 23,
2012, Ducker sent Amin an email seeking to arrange a personal meeting so that she could discuss
her concerns about the amount of business being given her company under its contract with
BWI. Pl.’s Resp. ¶ 4. Amin agreed to meet her in Atlanta, which he was visiting for a
conference, on March 25, 2012. According to Ducker, she began the conversation, as she had
planned, by discussing Sapphire Sales’s work with BWI—specifically, her feeling that Wendy
Ferrill, BWI’s Managing Director of Worldwide Sales, was withholding consulting work from
Sapphire. Id. at ¶ 5.
However, the conversation between Amin and Ducker then veered in an unexpected
direction. Apparently prompted by Ducker’s mention of a grievance against Ferrill, Amin began
to lay out his own theory that Ferrill was perpetrating a fraud against BWI by falsifying the
Request for Proposals (RFP) figures. Id. at ¶ 6. In order to gather hard proof of the malfeasance,
Amin told Ducker he wanted to see a “raw” copy of the company’s internal report on the number
of incoming RFPs—if he requested the report through normal channels, he anticipated he would

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get a “watered down version of the truth.” Compl. ¶ 9. As a quid pro quo, Amin asked Ducker to
procure a copy of the RFP report from Andre Worthy, a BWI employee who had access to the
information and with whom Ducker was acquainted; in exchange, he would exercise his efforts
as the board chairman to address Ducker’s concerns about BWI providing Sapphire with
insufficient consulting business. Pl.’s Resp. 5. After the meeting, Ducker had her daughter (also
a Sapphire Sales employee) send Amin the report as requested, along with a cover letter
highlighting what Ducker viewed as improprieties demonstrated by the report’s figures. See
Def.’s Br. 5–7.
Two days later, on March 27, 2012, Amin and two other BWI directors asked to meet
with Andre Worthy in a hotel room. After asking Worthy to explain the significance of the data
that Amin had obtained through Worthy and Ducker, Amin and the other two directors promised
to “protect” Worthy from any recriminations for having come forward. Compl. ¶ 13.
Strengthened by the meeting with Worthy in his conclusion that the RFP data showed that the
company was being defrauded by employees in its sales department, Amin said he would
“conduct his own investigation” before reporting to the CEO. Id. Indeed, Amin did not bring this
information to the attention of BWI CEO David Kong until May 21, 2012. Def.’s Br. 7, ¶ 17.
After hearing of Amin’s allegations, BWI launched an official inquiry into the
discrepancies in the RFP numbers. At the same time, however, the company conducted an
internal investigation concerning whether the behavior of Amin and the two other directors in
surreptitiously obtaining the data violated BWI’s by-laws and their duties as directors. Id. at ¶ 18.
When the company’s general counsel interviewed Amin as part of this investigation, Amin did
not divulge the sources of his information; instead, he “told a story” about having been given the
report by an unidentified employee who had flagged him down in a parking lot. Id. at 8, ¶ 20.

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Two days before this interview, Amin had spoken on the phone with Ducker. During their phone
conversation, he related to her his plan to lie to the general counsel, explaining that he felt he
needed to protect the identities of the “whistleblowers.” Ducker claims that during this phone
conversation she urged him simply to tell the truth, but he declined to do so. Pl.’s Resp. 8.
Several weeks later, in a phone conversation that Ducker recorded, Amin discussed the results of
his interview with the BWI general counsel and confirmed that he had fabricated a story about
the source of his information. Id. at 9 (citing Docket No. 1-3 at 18–21).
Despite Amin’s attempts at misdirection, BWI general counsel Lawrence Cuculic
eventually determined that Ducker and Worthy had been Amin’s sources. Id. at 9, ¶ 25. In a
report on the matter that he delivered to the BWI board of directors as a whole, Cuculic stated:
“There is reasonable cause to believe that on or about March 24, 2012, Mr. Amin directed an
unauthorized third party, who had no authority to act in accordance with Best Western’s bylaws,
to obtain a copy of the [report], a document that contains trade secret and confidential business
information. Id. at 10, ¶ 27 (citing Pl.’s Ex. G). After the board heard this report, three board
members—Beth Campbell, Jay Patel, and Julie Montmaneix—sent an email to the Best Western
members in their respective districts that apprised them of the results of the investigation;
attached to the email were the minutes of the board meeting at which the general counsel’s report
had been discussed.
In this email, sent on October 4, 2012, the directors did not name Ducker as the source of
Amin’s information, instead referring to a “third party” who “has a service contract with [BWI].”
Def.’s Br. 9 (citing Docket No. 1-1). It described Ducker’s initial conversation with Amin on
March 25, 2012, as follows:

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During this discussion, Mr. Amin agreed to speak to Mr. Kong about her
contract—the amount of work being sent to her company (she alleged not enough)
and the speed with which she is being paid (she alleged not quickly enough). She
has represented to [BWI] through her attorney that Mr. Amin stated “I will do this
for you if you do this for me.” According to the third party, her improperly
obtaining the report was “quid pro quo” for his complaining to Mr. Kong on her
behalf about her contract.
Docket No. 1-1 at 4. From this email, Ducker’s friend Brian Blinn, who received the message in
his capacity as a BWI member, was able to deduce that the “third party” referred to was in fact
Ducker. Pl.’s Resp. 11; Def.’s Br. 10. He was the only person who ever came forward to her
discussing the possibility that she was the third party named in the directors’ October 4 email.
Four days later, and on the advice of his attorney, Amin responded to the other board
members’ allegations by sending an email of his own—this one directed to the “governors”
within his district and several other members of the BWI board. Def.’s Br. 10. In his email, he
stated:
[I]n late March of this year, a whistleblower contacted me to inform me that the
RFP numbers were exaggerated and inflated, and that inappropriate bonuses had
been paid based on the exaggerated RFP numbers.
I was initially very skeptical of this claim, but I promised to protect the identities
of the individuals who came forward. And on this point I’d like to be clear – I will
always do my utmost to protect the identity of anyone who comes forward to me
with any concerns about any aspect of Best Western or its team . . . .
The whistleblower showed me four pages from what is called a PACE Report, a
report that I had never even heard of before that . . . . The printed sheets were
difficult to read, so I requested an electronic version, after which I, along with
Directors James Cosgrove and Jay Patel, met with one of the whistleblowers on
March 27, 2012 to better understand what I had been told . . . .
[After the official investigation had begun,] I asked Mr. Kong if he could assure
me that Best Western would not retaliate against the whistleblowers, but he said
he was unable to provide this assurance . . . . I foolishly agreed to the
whistleblowers’ request that I try to redirect the investigation away from them by
stating I had obtained the information from an unknown person . . . .

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Ultimately . . . Best Western learned the identity of the two whistleblowers. When
Best Western’s general counsel questioned one of these individuals, he agreed
that the RFP numbers were misleading, but claimed that I directed him to hide his
involvement in this affair. The other whistleblower, who has refused to be
interviewed, claims through her attorney that I asked her to provide me with the
PACE report and that I informed her of the misleading RFP numbers. . . .
Docket No. 1-2 at 2–4. The full message was just over three pages long, and its evident purpose
was to justify Amin’s own actions. It mentioned neither Ducker nor Worthy by name, nor did it
offer any identifying details about them other than that one was male and the other female. See
Def.’s Br. 13, ¶ 33. Ducker, who as a non-member was not a recipient of the email, found out
about the email from her friend Blinn. Id. at 13–14, ¶ 36.
By the time Amin sent his October 8 email, Ducker no longer had a business relationship
with BWI. On April 19, 2012, BWI notified Ducker that it was taking its “on-boarding” training
program in-house, and that it was terminating its contract with Sapphire Sales. Pl.’s Resp. 7, ¶
18.1 During their phone call in June 2012, Ducker confirmed to Amin that she no longer had a
relationship with the company. Id. at 8, ¶ 20.
Ducker filed a Complaint in this Court on October 31, 2012, against Devang Amin and
his wife Bhavna Amin. See Docket No. 1. On November 27, 2012, the Court acknowledged the
parties’ stipulated dismissal of Bhavna Amin as a defendant. Docket No. 16. Defendant Devang
Amin moved for summary judgment on August 29, 2013. See Docket No. 40.
Legal Analysis
Standard of Review
Summary judgment is appropriate on a claim if the moving party can show that there is
no genuine dispute as to any material fact, leaving him entitled to judgment as a matter of law.
Fed. R. Civ. Pro. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986). The purpose of
1

Ducker has initiated a separate contract dispute with BWI in the United States District Court in Arizona. See
CV12-1538-PHX-ROS, Sapphire Sales Solutions, LLC v. Best Western International, Inc. (cited in Compl. ¶ 22).

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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., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). Disputes concerning material facts are genuine where the evidence is such
that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material fact exist,
the court construes all facts in a light most favorable to the non-moving party and draws all
reasonable inferences in favor of the non-moving party. See id. at 255. However, neither the
Amere existence of some alleged factual dispute between the parties,@ id., 477 U.S. at 247, nor the
existence of Asome metaphysical doubt as to the material facts,@ Matsushita, 475 U.S. at 586, will
defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d
687, 692 (7th Cir. 2000).
Here, the Defendant as the moving party Abear[s] the initial responsibility of informing
the district court of the basis for his motion,” and identifying those portions of the record which
they believe demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at
323. Because Plaintiff, the non-moving party, will bear the burden of proof at trial, Defendant
may discharge his burden at this stage of the proceedings by showing an absence of evidence to
support Plaintiff’s case. Id. at 325.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for
resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
Therefore, after drawing all reasonable inferences from the facts in Plaintiff’s favor, if genuine
doubts remain and a reasonable fact-finder could find for Plaintiff, summary judgment is
inappropriate. See Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
But if it is clear that Plaintiff will be unable to satisfy the legal requirements necessary to

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establish his or her case, summary judgment is not only appropriate, but mandated. Ziliak v.
AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003). Further, a failure to prove one essential
element Anecessarily renders all other facts immaterial.@ Celotex, 477 U.S. at 323.
Discussion
Plaintiff Stacey Ducker brings two claims, both based entirely on Defendant Devang
Amin’s October 8, 2012 email to certain BWI members and fellow directors. First, she claims
that the email constitutes defamation. Her second claim alleges “false light publicity,” a branch
of the tort of invasion of privacy. Because we exercise diversity jurisdiction over these state-law
claims, we apply Indiana law to all substantive issues. See Shady Grove Orthopedic Assocs., P.A.
v. Allstate Ins. Co., 559 U.S. 393, 417 (2010).
I.

Defamation
A statement is defamatory if it “tends to injure reputation or to diminish esteem, respect,

good will, or confidence in the plaintiff, or to excite derogatory feelings or opinions about the
plaintiff.” Lovings v. Thomas, 805 N.E.2d 442, 447 (Ind. Ct. App. 2004) (citing Ratcliff v.
Barnes, 750 N.E.2d 433, 436 (Ind. Ct. App. 2001)). Under Indiana law, a plaintiff must prove the
following elements in order to prevail on a defamation claim: “(1) a communication with
defamatory imputation; (2) malice; (3) publication; and (4) damages.” Id. Additionally, the
communication in question must not be only defamatory, but false. Trail v. Boys & Girls Clubs
of Nw. Ind., 845 N.E.2d 130, 136 (Ind. 2006); Doe v. Methodist Hosp., 690 N.E.2d 681, 687
(Ind. 1997).
In his motion for summary judgment, Defendant raises three arguments against the claim:
that it lacks defamatory imputation because it does not identify the plaintiff, that Defendant
lacked malice in sending the email, and that Plaintiff can show no damages. Def.’s Br. 18.

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Because we conclude that Defendant’s email did not identify Plaintiff and thus neither possessed
defamatory imputation nor caused Plaintiff cognizable damages, we grant Defendant’s motion.
See Haire v. Parker, 957 N.E.2d 190, 195 (Ind. Ct. App. 2011) (noting that summary judgment is
warranted where a plaintiff fails to establish an element of the cause of action).
A. Defamatory Imputation
1. Legal Standard
The first element of the defamation cause of action carries with it an essential corollary:
the communication must be one concerning the plaintiff. “Defamatory words are not actionable
unless they refer to some ascertained or ascertainable person, and that person must be the
plaintiff.” Schrader v. Eli Lilly & Co., 639 N.E.2d 258, 261 (Ind. 1994) (citing Lee v. Weston,
402 N.E.2d 23, 30 (Ind. Ct. App. 1980)). Courts can ordinarily resolve this question as a matter
of law, and in doing so, they look to the clear meaning of the communication itself. See Ratcliff,
750 N.E.2d at 436. In Cortez v. Jo-Ann Stores, Inc., 827 N.E.2d 1223 (Ind. Ct. App. 2005), the
Indiana Court of Appeals held: “When determining whether a statement was defamatory, we
may not consider extrinsic facts or circumstances; rather we must simply view the
communication in its context and give it its plain and natural meaning.” 827 N.E.2d at 1230; see
also LDT Keller Farms, LLC v. Brigitte Holmes Livestock Co., Inc., 2010 WL 2608342, at *2
(N.D. Ind. June 25, 2010).
In her response, Plaintiff contends that Indiana law permits resort to extrinsic evidence to
determine whether Defendant’s email refers to her. In doing so, she makes two key interpretive
errors. First, she contends that the language of the Cortez decision is inapposite, because it refers
only to the distinction between defamation per se and defamation per quod. See Pl.’s Resp. 21 n.
4 (“To be defamation per se, the defamatory nature of the comment must appear without

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reference to extrinsic facts or circumstances.”) (quoting Cortez, 827 N.E.2d at 1230). Plaintiff
has simply mistaken one part of the Cortez decision for another—interpreting two wholly
compatible quotes from the decision as being mutually exclusive. Taken together, the court’s two
statements establish the following: the defamatory nature of a statement must be resolved
without resort to extrinsic evidence; further, a defamatory statement only qualifies as defamation
per se if its status as such is clear without extrinsic evidence. See Cortez, 827 N.E.2d at 1230.
Second, Plaintiff cites a comment to the Restatement (Second) of Torts § 564 for the
following proposition:
It is not necessary that the plaintiff be designated by name; it is enough that there
is such a description of or reference to him that those who hear or read reasonably
understand the plaintiff to be the person intended. Extrinsic facts may make it
clear that a statement refers to a particular individual although the language used
appears to defame nobody.
Pl.’s Resp. 19 (quoting Restatement (Second) of Torts § 564, cmt. b (1977)) (emphasis
Plaintiff’s). Plaintiff then points to a series of decisions—none from Indiana—incorporating the
language of this section of the Restatement. As Defendant points out, however, Section 564 of
the Restatement applies to a situation not present here—namely, when the communication’s
recipient mistakenly, but reasonably, believes that it refers to him. See Restatement (Second) of
Torts § 564 cmt. b. (the comment’s title is “person mistakenly but reasonably believed to be
intended”). Here, Defendant does not deny that the “whistleblowers” of his email are in fact
Worthy and Plaintiff; he maintains, rather, that the document itself warrants no such link. At any
rate, we are aware of no Indiana cases that adopt this portion of the Restatement, and Plaintiff’s
string of foreign cases is not persuasive. We conclude as a matter of law that the email identifies
the Plaintiff only if the four corners of the document itself warrant such an interpretation.

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2. Content of the Email
Indiana law does not provide detailed guidance to courts in determining whether an
allegedly defamatory communication identifies the plaintiff as its target. The Indiana Supreme
Court laid the broad foundations of a standard in a decision dating to the antebellum era, holding
that “[i]f it be uncertain of whom the words were spoken, the action is not maintainable.” Harvey
v. Coffin, 5 Blackf. 566, 568 (Ind. 1841). In accordance with that standard, the court concluded
that a statement referring only to “my brother”—when the defendant had more than one—could
not be defamatory. Id. In much more recent times, the Northern District of Indiana analogized to
Harvey in holding that where a series of articles referred to residents of a neighborhood but
identified no one in particular, it could not be defamatory. Gintert v. Howard Publ’ns, Inc., 565
F. Supp. 829, 832–833 (N.D. Ind. 1983). “The articles are referring to residents of [the area] in
general and as such there is no way to be certain against which, if any, individual any of the
language is directed.” Id.
According to any reasonable application of this broad standard, Defendant’s email does
not identify plaintiff on its face. It provides neither her name, her occupation, her residence, nor
any other distinguishing features other than her gender.2 Without recourse to extrinsic evidence,
a reasonable BWI member reading the email would have no idea to whom it referred. Even with
the extrinsic evidence Plaintiff seeks to apply to the email, it is far from clear that a reader
without special insight would be able to deduce the document’s connection to Plaintiff. As
Plaintiff points out, the October 4 email from other BWI board members (to a largely different
audience, but apparently with some overlap) did refer to one of the whistleblowers as a female
BWI contractor who met with Amin in Atlanta. See Pl.’s Resp. 20 (citing Docket No. 1-1 at 4).

2

Even at that, a reasonable reader would have no way of knowing whether Plaintiff was the male whistleblower
mentioned or the female.

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Even if Plaintiff’s friend Brian Blinn was allegedly able to conclude from the October 4 email
that Plaintiff fit that description, it is difficult to imagine that a reasonably well-informed BWI
member, viewing the two documents side by side, would be “certain” that they applied to
Plaintiff. Cf. Gintert, 565 F. Supp. at 832–833. Such analysis is superfluous, however. Indiana
provides that if a document does not defame the plaintiff according to its “plain and natural
meaning,” then it gives rise to no cause of action. See Cortez, 827 N.E.2d at 1230. Plaintiff thus
falls short of establishing the first, quintessential element of a defamation claim.
B. Causation and Damages
Although the failure to satisfy any element of the claim warrants summary judgment, we
briefly address Defendant’s additional argument that Plaintiff “cannot demonstrated that the
October 8, 2012 email was a proximate cause of her alleged damaged reputation and purported
inability to find alternate work.” Def.’s Br. 22. We agree with Defendant that this deficiency is
an independent basis for summary disposition.
Unless the communication at issue is defamation per se, the plaintiff must plead and
prove “special damages”—defined as those “that are pecuniary in nature and that have been
actually incurred as a natural and proximate cause of the wrongful act.” Moore v. Univ. of Notre
Dame, 968 F. Supp. 1330, 1335 (N.D. Ind. 1997) (applying Indiana law) (citing Tacket v. Delco
Remy Div. of Gen. Motors Corp., 937 F.2d 1201, 1206 (7th Cir. 1991)). Physical and emotional
damages are only recoverable if “attached” to pecuniary damages. “Emotional and physical
harms are not special damages unto themselves, but rather are parasitic damages, viable only
when attached to normal (i.e. pecuniary) special damages.” Lovings, 805 N.E.2d at 448.

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Here, Plaintiff has demonstrated no affirmative causal link between any of the pecuniary
damages she claims to have suffered and the allegedly defamatory email from Amin.3 BWI
terminated her consulting contract in April 2012—several months before Amin’s October 8
email. Pl.’s Resp. 7, ¶ 18. In her deposition, Plaintiff concedes that she can make no direct link
between the email and a loss of employment opportunity or other pecuniary benefit. Def.’s Ex. E
at 76–78. She does allege that in a conversation with a friend, she learned that Magnuson Hotels
did not want to speak with her “because of the litigation that was going on”4—but that
conversation took place on October 6, two days before Amin sent his email. Id. at 77–78; 90.5
Her friend Brian Blinn is the only person she alleges ever contacted her about the Amin email,
but she does not allege that she suffered any damages as a result of Blinn deducing from multiple
sources that she was the whistleblower mentioned in the email. Def.’s Br. 23. Without showing
that the email itself—rather than the controversy in general, or even an entirely unrelated change
in business fortunes—caused her alleged pecuniary damages, Plaintiff has failed to meet her
evidentiary burden.
In her response, Plaintiff does not dispute the absence of special damages; rather, she
argues that the Amin email was defamation per se. Pl.’s Resp. 23. A communication qualifies as
defamation per se “when the language of [the] statement, without reference to extrinsic evidence,
constitutes an imputation of (1) criminal conduct, (2) a loathsome disease, (3) misconduct in a

3

Plaintiff’s statement of damages recites that (1) her Sapphire Sales income dropped from $300,000 in 2011 to $0 in
2013; (2) she failed to get an anticipated contractor deal with Choice Hotels; (3) she applied for 60 jobs and only
received 2 responses; (4) organizations have stopped asking her to present at functions, despite her extensive
experience; and (5) the owner of Magnuson Hotels will not speak to her about consulting work because of the
“Amin litigation.” Def.’s Ex. G at 3–4.
4
Plaintiff contends (illogically, because the conversation took place two days before the email was sent) that this
comment refers to the email, but the more plausible reading is that it refers to the suit that Plaintiff had already filed
against BWI in federal court in Arizona. Cf. Def.’s Ex. E at 89–90.
5
Defendant argues, and Plaintiff admits in her deposition, that the information from Magnuson, relayed by a third
party, is “hearsay.” Def.’s Ex. E at 77–78. Because we find that Plaintiff fails to satisfy her burden of showing
damages anyway, we need not consider Defendant’s contention that the information is inadmissible.

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person’s trade, profession, office, or occupation, or (4) sexual misconduct.” Dugan v. Mittal
Steel USA, Inc., 929 N.E.2d 184, 186 (Ind. 2010) (citing Kelley v. Tanoos, 865 N.E.2d 593, 596
(Ind. 2007)). With respect to one of these four subjects, the statement in question must
“constitute ‘a serious charge of incapacity or misconduct in words so obviously and naturally
harmful that proof of their injurious character can be dispensed with.’” Moore, 968 F. Supp. at
1334 (quoting Schrader, 639 N.E.2d at 258). If defamation per se is established, then damages
are presumed and the plaintiff need not plead special damages with particularity. Dugan, 929
N.E.2d at 186 (citing Rambo, 587 N.E.2d at 145–146).
Read on its own terms, the Amin email does not obviously impute to Plaintiff misconduct
in her trade or profession.6 Although the email (falsely, according to Plaintiff) relates that the
whistleblowers requested that “Amin try to redirect the investigation away from them,” it does
not accuse either of the two unnamed whistleblowers of misconduct—in fact, the opposite is
true. Docket No. 1-2 at 2. In the message, Amin explains his decision to conceal the
whistleblowers’ identity, in part, as follows: “The law[] and common sense tell us that
whistleblowers should be protected, not punished. In my hotels and other businesses, I welcome
any employee to come forward with concerns he or she may have about anything that may harm
the business.” Id. at 3. Neither is the term “whistleblower,” taken by itself, obviously and
inherently defamatory. Plaintiff cites Roget’s Thesaurus for the proposition that synonyms of the
term include “informer,” “snitch,” “tattletale, and “rat.” Pl.’s Resp. 24. However, the term’s
meaning in the business context is at most equivocal, and it is hardly an unambiguous
professional epithet. Black’s Law Dictionary defines a “whistleblower” only as “an employee
who reports illegality to a governmental or law enforcement agency,” and notes that “federal and

6

Leaving aside the fact that, as previously discussed, the email does not impute to Plaintiff anything, since it does
not identify her.

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state laws protect whistleblowers from employer retaliation.” Black’s Law Dictionary 1590 (7th
ed. 1999). Even if a “whistleblower” in other contexts may be an object of scorn or displeasure,
Amin did not employ the term as such in his email. See McQueen v. Fayette Cnty. Sch. Corp.,
711 N.E.2d 62, 65 (Ind. Ct. App. 1999) (to constitute defamation per se, defamatory nature of
the words must appear without resort to any circumstances outside the four corners of the
communication). Nor does the word carry with it such an ironclad derogatory meaning that a
reader would inevitably view the email as a whole as an attack on Plaintiff’s integrity. A plaintiff
has a high bar to meet in showing that a communication unambiguously accuses him or her of
professional misconduct. See, e.g., Levee v. Beeching, 729 N.E.2d 215, 220 (Ind. Ct. App. 2000)
(statement that a fellow employee was a “liar” is not defamation per se without resort to extrinsic
evidence to reveal the magnitude of the alleged misconduct). Here, Plaintiff has not met that
burden, even if she could show that the email identifies her in the first place.7 Based on these two
grounds, either of which would be sufficient to defeat the claim, we grant Defendant’s motion
for summary judgment on the defamation claim.
II.

False Light Publicity
Plaintiff’s second claim is for false light publicity, a common law tort recognized by the

Indiana courts as a type of actionable invasion of privacy. Defendant’s motion for summary
judgment argues that the claim fails because it was not “publicized,” and because the light in
which Amin’s October 8 email placed Plaintiff was not “highly offensive to a reasonable
person.” Def.’s Br. 28–29. Without reaching these arguments, we conclude that summary
judgment is warranted for a more fundamental reason: the email does not say anything at all to a
reasonable reader about Plaintiff, because it does not identify her.

7

We do not reach Defendant’s third alternative argument that he did not act with the requisite “malice” when
sending the email.

15

The tort of invasion of privacy in Indiana has been held to encompass “four distinct
strands”: (1) unreasonable intrusion upon the seclusion of another, (2) appropriation of the
other's name or likeness, (3) public disclosure of private facts, and (4) false light publicity. St.
John v. Town of Elletsville, 46 F. Supp.2d 834, 850 (S.D. Ind. 1999); see also Cullison v.
Medley, 570 N.E.2d 27, 31 (Ind. 1991). The Indiana Supreme Court has defined false light
publicity, somewhat tautologically, as “publicity that unreasonably place[s] the other in a false
light before the public.” Lovings, 805 N.E.2d at 447. More helpfully, courts have followed the
Restatement of Torts in delineating two elements of the tort: “(1) the false light in which the
other was placed would be highly offensive to a reasonable person, and (2) the actor had
knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false
light in which the other would be placed.” Branham v. Celadon Trucking Servs., Inc., 744
N.E.2d 514, 524 (Ind. Ct. App. 2001) (citing Restatement (Second) of Torts § 652E (1977)).
The torts of false light publicity and defamation are thus nearly parallel in their elements.
The chief difference is that they reach “different interests”: “defamation reaches injury to
reputation; privacy actions involve injuries to emotions and mental suffering.” Branham, 744
N.E.2d at 524. Like defamation, false light publicity carries with it an implied antecedent
requirement: that the communication in question actually refer to the plaintiff. Otherwise, the
negative publicity can be neither objectively offensive nor reasonably foreseeable by the
defendant. See Restatement (Second) of Torts § 652E cmt. b (the tort must involve “highly
objectionable publicity that attributes to him [plaintiff] characteristics, conduct, or beliefs that
are false); see also 6 Am. Jur. 3d Proof of Facts 585, § 1.7 (“An unstated prerequisite to a cause
of action for false light invasion of privacy is that the matter disseminated to the public be
demonstrably “about” the plaintiff . . . .”).
16

As previously discussed, Amin’s October 8 email did not name Plaintiff, nor did it
provide any identifying information about her at all other than that either she or her fellow
whistleblower were female. See Docket No. 1-2. No reasonable reader could possibly have found
its depiction of her “highly offensive,” since no reasonable reader would know that the email
discussed her at all.8 Because Plaintiff has not satisfied an essential logical precondition to the
tort of false light publicity, her claim fails.
Conclusion
Both of Plaintiff’s claims rest on logical ground that is ultimately too weak to support
them: the contention that Amin’s email—which revealed about her only the possibility that she
might be a female—identified her to a sufficient degree to be actionable on any theory. This
deficiency is fatal to both claims, and Defendant’s motion for summary judgment is therefore
GRANTED as to both claims, and judgment will enter accordingly.
IT IS SO ORDERED.
Date: _______________________
3/14/2014

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

8

Although resolving the question is not necessary to our disposition of the case, we also reject Plaintiff’s proposed
definition of “publicity.” Noting that several neighboring states have adopted a more liberal definition of the term
which considers a statement “publicized” if disseminated to a highly sensitive peer group (such as coworkers or
neighbors) even if not distributed to the general public, Plaintiff urges us to “adopt” such a standard for Indiana law.
Of course, we are not empowered to change the Indiana common law; the fact that several other states have changed
theirs may be persuasive to the Indiana Supreme Court if they address the matter, but we are bound to follow
Indiana’s law as it is. The Indiana Supreme Court in Doe v. Methodist Hospital, 690 N.E.2d 681 (1997), noted the
more expansive minority view, but did not adopt it. 690 N.E.2d at 692–693. For our purposes, then, a statement is
not publicized unless it reaches the “public at large,” or so many persons that the matter is substantially certain to
become public knowledge. Id. at 692. Sending an email to a closed group of subordinates does not satisfy this
criterion.

17

Distribution:

Ashley Gillenwater Eade
KIGHTLINGER & GRAY, LLP-New Albany
[e-mail]
Crystal Gates Rowe
KIGHTLINGER & GRAY, LLP-New Albany
[e-mail]
Richard T. Mullineaux
KIGHTLINGER & GRAY, LLP-New Albany
[e-mail]
Tod F. Schleier
SCHLEIER LAW OFFICES, P.C.
[e-mail]

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