Rittgers v. Hale et al

Filing 75

MEMORANDUM AND ORDER denying 70 Motion for Summary Judgment. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 5/24/18. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DEBRA RITTGERS,
Plaintiff,
vs.

Case No. 17-4019-SAC-KGG

MELVIN HALE,
Defendant.

MEMORANDUM AND ORDER
Plaintiff has brought a defamation action against defendant
which is before the court upon defendant’s motion for summary
judgment.

Defendant’s motion (Doc. No. 70) devotes most of its

attention

to

seeking

defamation claim.
judgment

in

favor

summary

judgment

against

plaintiff’s

But, defendant’s motion also asks for summary
of

defendant’s

counterclaim

retaliation by plaintiff against defendant.

which

alleges

For the reasons which

follow, the motion shall be denied.
I. Summary judgment standards
Summary judgment is appropriate “if 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).

Such a showing may be made with citation “to particular parts of
materials in the record, including depositions, documents, . . .
affidavits or declarations, stipulations . . . , admissions,

1

interrogatory

answers,

or

other

materials.”

FED.R.CIV.P.

56(c)(1)(A).

The court views the evidence and all reasonable

inferences therefrom in the light most favorable to the nonmoving
party.

Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th

Cir. 2002).

An issue of fact is “genuine” if “there is sufficient

evidence on each side so that a rational trier of fact could
resolve the issue either way.”

Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664, 670 (10th Cir. 1998).

The court may not make

credibility determinations when examining the evidentiary record
presented by the parties.

Fogarty v. Gallegos, 523 F.3d 1147,

1165-66 (10th Cir. 2008).
“[W]hen . . . the moving party does not have the ultimate
burden of persuasion at trial, it has both the initial burden of
production on a motion for summary judgment and the burden of
establishing that summary judgment is appropriate as a matter of
law.”

Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976,

979 (10th Cir.2002).
burden

either

by

“The moving party may carry its initial

producing

affirmative

evidence

negating

an

essential element of the non-moving party's claim, or by showing
that the nonmoving party does not have enough evidence to carry
its burden of persuasion at trial.” Id. (citation omitted).
“Showing”

or

accomplished

“pointing
by

out”

reliance

interrogatories and the like.

an
upon

absence

of

evidence

depositions,

may

answers

be
to

Celotex Corporation v. Catrett, 477
2

U.S. 317, 328 (1986)(White, J., concurring).

But, “[i]t is not

enough to move for summary judgment without supporting the motion
in any way or with a conclusory assertion that the plaintiff has
no evidence to prove his case.”

Id.; see also, Coit v. Zavaras,

175 Fed.Appx. 226, 229 (10th Cir. 2006); Eaves v. Fireman's Fund
Ins. Companies, 148 Fed. Appx. 696, 700 (10th Cir. 2005); Windon
Third Oil & Gas Drilling P'ship v. Fed. Deposit Ins. Corp., 805
F.2d 342, 345 (10th Cir. 1986).
If the movant carries the initial burden of production, then
the nonmovant that bears the burden of persuasion at trial must go
beyond the pleadings and set forth specific facts that would be
admissible in evidence from which a rational trier of fact could
find for the nonmovant.

Adler, 144 F.3d at 671.

In this case,

plaintiff has signed an affidavit (Doc. No. 72-2) verifying the
allegations in the first amended complaint and offered an affidavit
(Doc. No. 72-1) from another witness.

“Evidence is sufficient to

withstand summary judgment if it is significantly probative and
would enable a trier of fact to find in the nonmovant's favor.”
Adams v. American Guarantee and Liability Ins. Co., 233 F.3d 1242,
1246 (10th Cir. 2000).
II. Plaintiff’s allegations
Plaintiff alleges that she is an administrative assistant
employed at Emporia State University (“ESU”).
Plaintiff

claims

that

she

was
3

defamed

by

Doc. No. 58, ¶ 5.
defendant

when

he

communicated to the public that plaintiff was the probable author
of a racial slur that was found written on a student’s notepad in
an office at ESU.

Doc. No. 72, pp. 5-6.

The first amended

complaint alleges that defendant and his wife Angelica:

“sent one

or more press releases to National Public Radio;” and “created a
website named March on Emporia . . . along with Facebook and
Twitter pages that continued to accuse [plaintiff] as the most
probable person to have written the racial slur in the notebook.”
Doc. No. 58, ¶¶ 8 and 9.

Neither the press releases nor the

website or social media pages have been presented to the court as
part of the summary judgment record.
III. Defamation standards
The parties agree that Kansas law applies here.

In Kansas,

a valid defamation claim requires proof that: (1) the defendant
wrote

false

and

defamatory

statements;

(2)

the

defendant

communicated these statements to a third party; and (3) the
plaintiff’s reputation was injured by the statements.

El-Ghori v.

Grimes, 23 F.Supp.2d 1259, 1269 (D.Kan. 1998); see also In re
Rockhill Pain Specialists, P.A., 412 P.3d 1008, 1024 (Kan.App.
2017)(quoting Hall v. Kansas Farm Bureau, 50 P.3d 495 (2002)).
“’[D]amage to one’s reputation is the essence and gravamen of an
action for defamation.’”

In re Rockhill Pain Specialists, 412

P.3d at 1024 (quoting Gobin v. Globe Publishing Co., 649 P.2d 1239
(1982)).
4

“Proof of such damages typically entails showing that
persons were deterred from associating with the
plaintiff, that the plaintiff's reputation had been
lowered in the community, or that the plaintiff's
profession suffered.” Ali v. Douglas Cable
Communications, 929 F.Supp. 1362, 1385 (D. Kan. 1996).
“Damage to reputation can be inferred from the
evidence so long as the inference is reasonable.”
Sunlight Saunas, Inc. v. Sundance Sauna, Inc., 427
F.Supp.2d 1032, 1072 (D. Kan. 2006) (citing Moran v.
State, 267 Kan. 583, 590, 985 P.2d 127 [1999]).
Additionally, “[a] victim's own observations may be
suitable as proof of harm to his reputation for
defamation cases in Kansas ... but they must raise a
reasonable inference that the damage was caused by the
plaintiff's statements. [Citation omitted.]” Debord v.
Mercy Health System of Kansas, Inc., 860 F.Supp.2d
1263, 1283 (D. Kan. 2012). However, “[b]road and
factually unsupported allegations ... do not support a
claim for damages for alleged defamation.” Davis v.
Hildyard, 34 Kan.App. 2d 22, 30, 113 P.3d 827 (2005).
Id. at 1024-25.
IV. Analysis of defendant’s arguments for summary judgment against
plaintiff’s defamation claim.
Defendant’s motion makes numerous arguments.

Defendant’s

first argument is that plaintiff “refers to statements that are
true involving a matter of public concern.”

Doc. No. 71, p. 13.

The court will address the “truth” argument in this part of the
order and address any constitutional privilege claim later in the
order.

The summary judgment record before the court is not

comprehensive and does not preclude a genuine issue as to the truth
of the statement that plaintiff was the probable author of the
racial slur.

Defendant supports his position with evidence of a

statement by a handwriting analyst, Wendy Carlson.

5

Plaintiff has

sworn

that

she

did

involvement in it.

not

write

the

Doc. No. 58, ¶ 16.

racial

slur

or

have

any

And the handwriting analyst

has stated that she was not given sufficient information to provide
a conclusive expert opinion.

Doc. No. 72-1, ¶ 4.

The court

concludes that plaintiff has presented sufficient material to
demonstrate a genuine issue of fact as to the truth or falsity of
defendant’s alleged defamatory statements.1
Defendant’s second argument is that plaintiff “fails to state
with any specificity what [defendant] said or published that was
false.”

Doc. No. 71, p. 13.

The first amended complaint (Doc.

No. 58, pp. 2-3), the final pretrial order (Doc. No. 68, pp. 6-9)
and plaintiff’s response to the summary judgment motion (Doc. No.
72, pp. 4-6) are documents where plaintiff states she was defamed
by statements that she was the probable author of a racial slur
found on a notepad at ESU.

She further indicates that “the Hales”

(defendant and his wife) made the statements on a website and in
social media.

Plaintiff also states that defendant and his wife

“sent one or more press releases to National Public Radio.”
No. 68, p. 7.

Doc.

It is not clear to the court whether plaintiff is

1

In defendant’s reply brief, defendant presents evidence and further arguments
which contest the credibility of the handwriting expert’s affidavit and
otherwise insist that a rational jury could not find for plaintiff. Defendant
also makes many factual assertions which are not connected to the evidentiary
record. The court has considered these points, but concludes, after excluding
those arguments requiring the court to make a credibility determination or
asking the court to weigh claims which are not substantiated by evidentiary
materials in the record, that a rational jury could find in favor of plaintiff
upon the record before the court.

6

alleging that the defamatory statement was made in the press
releases.
raising.

But, that does not appear to be the issue defendant is
Upon review, the court concludes that although plaintiff

could have been more specific, sufficient information has been
provided to give defendant fair notice of plaintiff’s claim.
Therefore,

the

court

rejects

defendant’s

second

argument

for

summary judgment.
Defendant’s third argument is that plaintiff has offered “no
proof or evidence to support her claim.”

Doc. No. 71, p. 13.

This

argument is repeated more frequently and vigorously in defendant’s
reply brief where defendant makes additional factual assertions
(often without citation to the record) denying relevant facts.
Contrary to defendant’s argument, plaintiff has sworn to the facts
alleged in the complaint.

This qualifies as an offer of proof for

the purposes of a summary judgment motion.

See Green v. Branson,

108 F.3d 1296, 1302 (10th Cir. 1997); Long v. Morris, 485 F.Supp.2d
1247, 1249 (D.Kan. 2007). Plaintiff has also provided an affidavit
from the handwriting analyst.

As stated in section I of this

order, defendant does not satisfy his initial burden of production
by merely asserting that plaintiff has no proof or evidence to
support her claim or by advancing factual claims without citation
to an evidentiary record.

For these reasons, defendant’s third

argument is overstated and does not support granting summary
judgment.
7

The fourth argument is that the statements in question were
statements

of

personal

opinion

defamatory under Kansas law.

or

hyperbole

which

are

not

Defendant cites Byers v. Snyder, 237

P.3d 1258, 1271 (Kan.App. 2010) which discusses Gatlin v. Hartley,
Nicholson, Hartley & Arnett, P.A., 26 P.3d 1284 (Kan. App. 2001).
In Byers, the court rejected a claim that the recounting of a
third-party’s observations of alleged public drunkenness was an
opinion which could not be defamatory.
while

reviewing

a

rambling

and

In Gatlin, the court held,

incoherent

complaint,

that

a

statement from an attorney that a former husband in a divorce
proceeding was not “totally innocent in all this, there are things
about you don’t know,” constituted personal opinion and hyperbole,
not defamation.

26 P.3d at 1287.

Neither Byers nor Gatlin holds

that any opinion statement may not be defamatory, and the court
does not believe Kansas law is so broad.
District of Kansas cases have relied upon the Supreme Court’s
decision in Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19
(1990) and Restatement (Second) of Torts § 566 (1977).

See, e.g.,

Robinson v. Wichita State University, 2018 WL 836294 *12 (D.Kan.
2/13/2018)(citing Milkovich); Clark v. Time Inc., 242 F.Supp.3d
1194, 1219 (D.Kan. 2017)(same); Phillips v. Moore, 164 F.Supp.2d
1245,

1259

(D.Kan.

2001)(citing

F.Supp.2d at 1269 (same).

Restatement);

El-Ghori,

23

Milkovich holds that the United States

Constitution offers no wholesale protection for opinion statements
8

if those statements imply assertions of objective fact.

497 U.S.

at 18-19. Section 566 of the Restatement provides that expressions
of

opinion

that

imply

undisclosed

considered defamatory communications.
Restatement explains:

defamatory

facts

may

be

As Illustration 3 of the

“A writes to B about his neighbor C: ‘I

think he must be an alcoholic.’ A jury might find that this was
not just an expression of opinion but that it implied that A knew
undisclosed facts that would justify this opinion.”2
Here, a jury could find that defendant made a derogatory
statement:

i.e., that plaintiff was the most probable person to

have written the racial slur.

A jury could also find that the

statement implies that defendant knew undisclosed defamatory facts
that would justify this opinion.

The record does not foreclose a

finding that this is a case, not of pure opinion, but of mixed
opinion.

Therefore, summary judgment is not justified on this

record by the argument that, as a matter of law, the alleged
statements are not defamatory but purely opinion.
Defendant’s next argument for summary judgment appears to
assert a qualified privilege, although defendant does not separate
this argument from his claim that the alleged defamatory statements
were truthful.

See Doc. No. 71, pp. 13-14.

2

Defendant asserts

The Restatement’s position is summarized in Levin v. McPhee, 119 F.3d 189,
197 (2d Cir. 1997): “Though some statements may be characterized as hypothesis
or conjecture, they may yet be actionable if they imply that the speaker’s
opinion is based on the speaker’s knowledge of facts that are not disclosed to
the reader.”

9

that he made the alleged defamatory statements in good faith; that
the statements were limited to serve a specific purpose; that he
had a duty or interest in communicating the statements; and that
he communicated the statements to someone with a corresponding
duty or interest.

These are approximately the elements of a

qualified privilege defense in Kansas.

See Sunlight Saunas, Inc.

v. Sundance Sauna, Inc., 427 F.Supp.2d 1032, 1071 (D.Kan. 2006);
Turner v. Halliburton Co., 722 P.2d 1106, 1112-13 (Kan. 1986).
The statements of which plaintiff complains here, however, were
not made to persons with a corresponding business or employment
interest.

The statements were allegedly posted on social media

and perhaps transmitted to NPR.3
has

not

been

demonstrated

as

Therefore, qualified privilege
grounds

for

summary

judgment.

Defendant also argues “constitutional privilege.”

Doc. No.

Sunlight Saunas, 427 F.Supp.2d at 1072.

71, p. 15.

Specifically, defendant asserts, citing New York Times

Co. v. Sullivan, 376 U.S. 254 (1964), that “[a]s a reporter and
the publisher of a matter of public concern, [defendant] is
afforded

the

protection

of

constitutional

privilege.”

Id.

Defendant asserts that the privilege, as applied to this case,
requires

that

plaintiff

prove

defendant

acted

with

malice.

Plaintiff contends that she may recover damages in this case upon

3

Defendant indicates that he made communications to ESU academic officers and
ESU police.
But, those communications do not appear to be the subject of
plaintiff’s defamation claim.

10

a showing of negligence because she is not a public figure.

Based

upon the record currently before the court, it appears that a
negligence standard may apply to the defamation claim.4

The

Supreme Court has held that “so long as they do not impose
liability without fault, the States may define for themselves the
appropriate standard of liability for a publisher or broadcaster
of defamatory falsehood to a private individual.”
Welch, Inc., 418 U.S. 323, 347 (1974).

Gertz v. Robert

In Kansas, a negligence

standard has been applied to defamation cases involving a private
individual and issues of public concern.

See Carson v. Lynch

Multimedia Corp., 123 F. Supp. 2d 1254, 1265 (D. Kan. 2000)(private
plaintiffs may recover for negligent defamation against media and
nonmedia defendants); Dow v. Terramara, Inc., 1992 WL 403093, at
*5 (D. Kan. Dec. 4, 1992)(observing that generally a negligence
standard applies if the alleged victim is not a public official or
public figure, although later finding that a qualified privilege
applies under the facts of the case); McKown v. Dun & Bradstreet,
Inc., 744 F. Supp. 1046, 1049 (D. Kan. 1990)(observing that when
a plaintiff is neither a public official nor a public figure, he
need

only

prove

negligent

publication);

Ruebke

v.

Globe

Communications Corp., 738 P.2d 1246, 1250 (1987)(stating that
negligence standard applies to libel actions brought by private

4

In so holding, the court does not reach whether defendant can properly claim
to be a reporter, publisher or member of the media.

11

plaintiffs, citing Gobin v. Globe Publishing Co., 531 P.2d 76
(1975), but later finding that plaintiff was a limited-purpose
public figure); Sellars v. Stauffer Commc'ns, Inc., 9 Kan. App. 2d
573, 575, 684 P.2d 450, 453 (1984), aff'd, 236 Kan. 697, 695 P.2d
812 (1985)(a file clerk and wife of the sheriff was not a public
official or public figure and need only satisfy negligence standard
in defamation action against newspaper publisher that implied that
she received unearned wages, where the publications involved a
subject of public interest); Gleichenhaus v. Carlyle, 597 P.2d
611, 613 (Kan. 1979)(a public figure plaintiff changes burden from
negligence to malice).

There is a genuine issue of material fact

as to whether negligence may be demonstrated in this case.
Defendant also claims that plaintiff cannot offer proof of
damage to her reputation.

Defendant points to evidence that

plaintiff has done well and been happy at ESU in recent times, but
this evidence is not sufficient to foreclose a genuine issue of
fact as to damage to plaintiff’s reputation.

Plaintiff has sworn

to

complaint.

the

allegations

in

the

first

amended

These

allegations include claims that plaintiff was verbally attacked
because of allegations defendant and his wife made against her,
that her reputation suffered greatly, and that as a result she has
suffered anxiety, depression and migraines. Based upon these sworn
allegations, the court finds that there is a genuine issue of fact
as to whether plaintiff’s reputation was harmed and whether the
12

damage to plaintiff’s reputation caused her mental anguish or other
damages.
Finally, defendant contends that plaintiff may not recover
punitive damages because plaintiff cannot demonstrate malice or a
reckless disregard for the truth.5

Doc. No. 71, p. 17.

In Gertz,

418 U.S. at 349-50, the Court held that a private individual could
not recover punitive damages for an alleged defamatory statement
relating to a matter of public concern unless the plaintiff showed
“actual

malice,”

that

is,

disregard for the truth.

knowledge

of

falsity

or

reckless

Plaintiff has alleged that defendant

acted maliciously or with wanton disregard for the truth.
No. 58, ¶ 17.
malice.

Doc.

Defendant asserts that plaintiff cannot prove

But, defendant has not fulfilled his burden of production

by offering more than his assertions to show that that there is an
absence of proof on that issue.

Defendant’s memorandum in support

of his summary judgment motion lists nine uncontroverted facts.
These alleged uncontroverted facts do not demonstrate an absence
of proof of actual malice as required by Gertz or legal malice as
required by Kansas law.6

5

Since defendant has not shown at this point in the case that a qualified
privilege or constitutional privilege applies, the court does not address
whether plaintiff can make a showing of malice necessary to overcome such a
privilege.
6 In Kansas, pursuant to K.S.A. 60-3702, to prevail upon a claim for punitive
damages a plaintiff “shall have the burden of proving by clear and convincing
evidence in the initial phase of the trial, that the defendant acted toward
the plaintiff with willful conduct, wanton conduct, fraud, or malice.”

13

In his memoranda in support of summary judgment, defendant
contends that he relied upon the opinion of a handwriting expert,
Wendy Carlson, for the statements at issue.

This contention does

not show that plaintiff lacks proof of malice or affirmatively
remove a genuine issue as to whether defendant acted with malice.
Carlson has stated in an affidavit that she gave only a preliminary
opinion to defendant, that she did not give defendant permission
to post that opinion, and that she would not have done so without
further information and work.

While this may not be strong proof

of malice, the court recognizes that the question of malice in a
defamation case is ordinarily a question of fact for the jury.
Smith v. Farha, 974 P.2d 563, 568 (Kan. 1999)(quoting Ruebke, 738
P.2d at 1254); see also Burcham v. Unison Bancorp, Inc., 77 P.3d
130 152 (Kan. 2003)(the presence of malice is typically a jury
question).

Given the scant summary judgment record and that

defendant has the burden of production, the court declines to grant
summary judgment on this issue.

See H. Wayne Palmer & Associates

v.

839

Heldor

Industries,

Inc.,

F.Supp.

770,

780

(D.Kan.

1993)(denying summary judgment against a punitive damages claim
where the movant did not show an absence of evidence to support
plaintiff’s case).

The issue may be raised again at trial upon a

Fed.R.Civ.P. 50 motion.

14

V. Defendant shall not be granted summary judgment upon his
counterclaim.
According to the pretrial order (Doc. No. 68, p. 13) defendant
has

alleged

a

counterclaim

against

plaintiff

for

retaliating

against defendant’s exercise of his First Amendment rights in
violation of 42 U.S.C. § 1983.

While defendant’s motion for

summary judgment is concentrated against plaintiff’s claims, it
also

seeks

summary

judgment

in

defendant’s

favor

upon

the

counterclaim.
To succeed upon a motion for summary judgment on a claim where
defendant has the burden of proof, defendant must establish that
all the essential elements of the claim.
1271, 1280 (10th Cir. 2008).

Pelt v. Utah, 529 F.3d

Defendant must show that he engaged

in activity protected by the First Amendment; that plaintiff caused
defendant to suffer an injury that would chill an ordinary person
from continuing to engage in such activity; and that the adverse
action

was

activity.

substantially

motivated

by

defendant’s

protected

Zia Shadows, LLC v. City of Las Cruces, 829 F.3d 1232,

1247-48 (10th Cir. 2016)(quoting Worrell v. Henry, 219 F.3d 1197,
1212 (10th Cir. 2000)).

Defendant has not presented or alleged

uncontroverted facts which establish these elements.

Therefore,

the court will not grant summary judgment in defendant’s favor
upon his counterclaim.

15

VI. Conclusion
For the above-stated reasons, defendant’s motion for summary
judgment (Doc. No. 70) shall be denied.
IT IS SO ORDERED.
Dated this 24th day of May, 2018, at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

16