Rieck v. Housing Authority of Covington et al

Filing 56

MEMORANDUM OPINION & ORDER: that McMurtry's motion for summary judgment 38 be, and is hereby, GRANTED. Signed by Judge William O. Bertelsman on 4/1/2021.(ECO)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION NO. 2:19-CV-0092 (WOB-CJS)
JEFF RIECK.

PLAINTIFF,

VS.

MEMORANDUM OPINION AND ORDER

HOUSING AUTHORITY OF COVINGTON, ET AL.,
Jeff

Rieck

filed

this

civil

DEFENDANTS.

action

against

the

Housing

Authority of Covington, the Board of Commissioners for the Housing
Authority of Covington, Joseph Meyer, Shawn Masters, Jennifer
Holt,

Jennifer

Rawers,

and

Stephen

McMurtry

following

his

termination in 2018. (Docs. 1, 17).
This matter is currently before the Court on McMurtry’s motion
for summary judgment as to Rieck’s defamation claim. (Doc. 38).
The

Housing

Authority

of

Covington

(“HAC”)

joins

McMurtry’s

limited request. (Doc. 41).
The Court previously held a telephonic hearing on this motion
on Tuesday, March 30, 2021. (Doc. 55). The issues being ripe, the
Court now issues the following Memorandum Opinion and Order.
Introduction
In this unusual libel case, the executive director of a
municipal housing agency is suing its attorney for defamation. As
stated in more detail below, the attorney answered questions from

1

a newspaper reporter concerning a resolution by the agency’s board
of directors stating its intention to discharge the plaintiff.
The criteria for analyzing a libel claim has grown somewhat
complicated in recent decades as a result of certain Supreme Court
decisions mandating the use of different criteria for differently
situated plaintiffs.
At common law, which prevailed in Kentucky until 1964 any
individual who could prove the defendant had made or published
derogatory written statements about him could recover in a libel
action. However, in the interest of protecting the constitutional
right

of

different

freedom

of

standards

speech,
for

the

different

Supreme
kinds

Court
of

has

mandated

plaintiffs.

See

generally 13 Ky. Prac. Tort Law § 15:13 (2020).
For example, a public official must prove that the libelous
statement(s) were made with “actual malice,” which refers to a
defendant’s knowledge of a deliberate falsehood or a statement
made “with reckless disregard as to truth or falsity.” New York
Times Co. v. Sullivan, 376 U.S. 254, 283 (1964); Harte-Hanks
Commc’ns v. Connaughton, 491 U.S. 657, 688 (1989). The same is
true of “public figures,” who can be a well-known person in the
community, like a celebrity, or someone who attains the status of
a public figure only for a limited purpose because they thrust

2

themselves to the forefront of a public controversy. Gertz v.
Robert Welch, Inc., 418 U.S. 323, 342 (1974).1
Sometimes, it is difficult to classify a libel plaintiff.
For example, it is not clear whether the plaintiff here is a
“public official.” See Rosenblatt v. Baer, 383 U.S. 75, 85 (1966)
(explaining that that a public official is someone who is “among
the hierarch of government employees who have, or appear to the
public to have, substantial responsibility for or control over the
conduct of governmental affairs”).
However, it is unnecessary for the Court to undertake this
kind of analysis because “truth” is a defense in all kinds of
defamation actions. 13 Ky. Prac. Tort Law § 15:6 (2020).
As explained infra, the Court holds that in this case the
defendant stated the truth when he told a reporter the contents of
a resolution by the agency’s board of directors stating an intent
to discharge the plaintiff.
Factual and Procedural Background
Rieck

is

the

former

Executive

Director

of

the

Housing

Authority of Covington, serving from June 16, 2014 until he was
terminated on September 19, 2018. (Doc. 17 at ¶ 4). Rieck was

Because public figures assume the risk of closer public scrutiny
than private individuals, and because public figures enjoy greater
access to the media to effectively rebut any false statements made
about them, public figure must establish “actual malice.” Gertz,
418 U.S. at 345.
1

3

employed by HAC pursuant to a five-year Employment Agreement that
began on June 16, 2014 and was set to end on June 15, 2019. (Id.
at ¶ 9). His tenure began when Sherry Carran was the Mayor of
Covington. (Id. at ¶ 12). But in November of 2016, Joseph Meyer
beat Carran in the general election to become the new Mayor of
Covington. (Id. at ¶ 13). Then, like any change of administrations,
a new vision for the City of Covington was put forth by Meyer. And
with this change came tensions.
Rieck’s tension with Meyer began in January of 2017, when
Meyer told Rieck to “stop filling the units at City Heights”
because “in eighteen months they [would] all be gone.” (Id. at ¶
14).

At

a

February

2018

Board

meeting,

Rieck

expressed

his

displeasure about Meyer’s comment and other policy choices. (Id.
at ¶ 15). Then on March 21, 2018, a letter was read at the Board
meeting to express similar frustration by some of the staff. (Id.
at ¶ 17).
The conflicts continued into April of 2018. This time a
disagreement arose when Meyers recommended that Shawn Masters fill
a vacancy on the HAC Board. (Id. at ¶ 23). Rieck believed this
appointment compromised the legality of the Board because KRS ¶
80.040(2)(a) provides that “no more than two (2) appointees on any
city housing authority shall be affiliated with the same political
party.” And with Masters’ appointment, the Board now comprised of

4

three Democrats (Commissioners Jennifer Allen, Jennifer Holt, and
Masters). (Id. at ¶¶ 22-23).
When this issue was addressed at the May 16, 2018 Board
meeting, Commissioner Holt informed the Board that she was changing
her party affiliation to “Independent.” (Id. at ¶ 25). While this
created compliance with the statute, Rieck still believed this did
not

cure

Masters’

appointment.

(Id.)

Nevertheless,

the

Board

proceeded with a vote to elect Meyer as the Chair and Masters as
the Vice-Chair. (Id. at ¶ 26).
After Rieck continued to challenge various decisions of the
Board, Meyer and the HAC Board of Commissioners passed a resolution
to suspend Rieck without pay and provide him with notice of their
intent to terminate on July 18, 2018.

(Id. at ¶¶ 27, 30).

On July 19, 2018, an article appeared in the River City News
concerning

the

Board’s

decision.

(Doc.

38-6).

This

article

purportedly surfaced following a reporter speaking to the Board’s
General Counsel, Stephen McMurtry. (Id.) On September 19, 2018,
HAC

passed

a

resolution

to

officially

terminate

Rieck’s

employment. (Id. at ¶ 34).
On July 17, 2019, Rieck filed his original complaint against
the

defendants

asserting

three

claims:

(1)

First

Amendment

retaliation; (2) interference with prospective employment; and (3)
defamation. (Doc. 1 at 8-10). On November 19, 2019, Rieck filed an

5

amended complaint to add a claim for breach of contract in count
IV. (Doc. 17 at 10-11).
On December 6, 2019, McMurtry filed a motion to dismiss the
interference with a prospective employment and defamation claims
against him. (Doc. 18). The remaining defendants filed their answer
on December 9, 2019, and HAC moved for partial judgment on the
pleadings

concerning

Rieck’s

claim

for

vicarious

liability

concerning McMurtry’s statements to the media. (Doc. 21).
This Court held oral argument for McMurtry and HAC’s motions
on June 11, 2020. (Doc. 32). At the hearing, the Court granted the
defendants’ motions in part and denied in part. (Id. at 1-2).
Specifically, the Court granted the defendants’ request to dismiss
Rieck’s interference with prospective employment claim but allowed
Rieck’s defamation claim to proceed. (Doc. 33 at 17:20-25).
Following limited discovery on the defamation issue, McMurtry
moves for summary judgment on the defamation claim only.2 (Doc.
38). HAC joins McMurtry’s motion, arguing that since Rieck’s
defamation claim is premised on a theory of vicarious liability,
it cannot be liable if McMurtry’s statements were not defamatory.
(Doc. 41 at 1).

The claims of retaliation and breach of contract are still
pending. On December 31, 2020, Magistrate Judge Smith granted the
parties’ request to extend the discovery deadline for these matters
to April 15, 2021, with dispositive motions to be filed by May 17,
2021. (Doc. 50).
2

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Standard of Review
Summary judgment is proper 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).
While the Court views the evidence in the light most favorable to
the nonmoving party, the nonmoving party “must come forward with
specific facts showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).
Analysis
In

Kentucky,

a

cognizable

claim

for

defamation

requires

plaintiffs to prove the following elements:
(a)
(b)
(c)
(d)

A false and defamatory statement concerning another;
An unprivileged publication to a third party;
Fault amounting at least to negligence on the part of
the publisher; and
Either actionability of the statement irrespective of
special harm or the existence of special harm caused by
the publication.

Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 282 (Ky. 2014) (internal
footnote omitted) (quoting RESTATEMENT (SECOND)

OF

TORTS § 558) (Am.

Law Inst. 1977)).
At

issue

here

is

the

first

element:

whether

McMurtry’s

statements were true. McMurtry argues his statements were true
because he merely provided the reporter with the Board’s reasons
for passing the resolution of its intent to terminate Rieck. (Doc.
38 at 8-10).

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Rieck contends that McMurtry did not cite the resolutions or
attribute the statements to the Board, but he instead made the
statements

of

fact

about

Rieck

that

portrayed

him

as

an

uncooperative and insubordinate employee who failed to do his job.
(Doc. 44 at 12).
“Defamatory language” is broadly construed as language that
“tends to harm the reputation of another as to lower him in the
estimation

of

the

community

or

to

deter

third

persons

from

associating or dealing with him.” Stringer v. Wal-Mart Stores,
Inc., 151 S.W.3d 781, 793 (Ky. 2004), overruled on other grounds
by Toler, 458 S.W.3d at 287. “[T]he words of the publication should
not be considered in isolation, but rather within the context of
the entire [publication] and the thoughts that the [publication]
through its structural implications and connotations is calculated
to convey the reader to whom it is addressed.” Connaughton v.
Harte-Hanks Communications, Inc., 842 F.2d 825, 840 (6th Cir.
1988), aff’d, 491 U.S. 657 (1989).
But it has long been recognized that the truth of alleged
statements by a defendant is “always a complete defense . . ..”
Pennington v. Little, 99 S.W.2d 776, 777 (Ky. 1936). Thus, a
defendant who can prove the truth of the alleged defamatory
statement cannot be liable for slander. Columbia Sussex Corp. v.
Hay, 627 S.W.2d 270, 273 (Ky. Ct. App. 1981).

8

A review of McMurtry’s statements together show that his
statements were true. To be sure, on July 18, 2018, the Board
passed a resolution of its intent to terminate Rieck. (Doc. 388). A copy of this resolution, along with a letter detailing the
Board’s reasons for pursing Rieck’s termination, was sent to Rieck
the same day. (Id.)
Then, without warning or request, a reporter from the River
City News called McMurtry to inquire about the Board’s July 18
resolution. (Doc. 38-6). McMurtry explained that the Board gave
Rieck “notice that they intended to terminate him based on certain
issues

and

that

he

had

the

right

to

certain

due

process

proceedings[,] and they were offering him those[.]” (Id.) Rieck
concedes this statement is true.
The article went on to explain that “[t]hose proceedings
available to Rieck included a pre-termination hearing and a right
to severance pay if dismissed without cause.” (Id.) But, McMurtry
clarified that the Board’s “dismissal was with cause” not for a
“single cause . . . rather ‘a long list.’” (Id.) McMurtry even
provided examples of some of the Board’s reasons, including Rieck’s
alleged “failures to cooperate with the board, to bring certain
items to the board’s attention, to deliver reports, [and] to
provide discussions to the board.” (Id.) McMurtry explained that
“[i]t’s nothing that is really outstanding or anything that shows

9

in anyway any moral turpitude, but it was just that the job was
not getting done.” (Id.)
Rieck concedes that the Board sent him its resolution and
provided

him

with

a

list

of

twelve

reasons

for

seeking

his

termination. Nevertheless, Rieck asks the Court to look narrowly
at McMurtry’s statements to find that they insinuated that Rieck
was already terminated with cause before his due process hearing.
This is not so.
First, the context of McMurtry’s statement reveals that he is
discussing the Board’s reasons provided to Rieck in his letter.
Again, Rieck does not contest that McMurtry told the reporter that
the Board gave Rieck “notice that they intended to terminate him
based on certain issues[.]” (Doc. 38-6) (emphasis added). And after
providing this context, the reporter wrote “[t]hose proceedings
available to Rieck included a pre-termination hearing and a right
to severance pay if dismissed without cause.” (Id.) At this point,
McMurtry informed the reporter that the Board was seeking dismissal
with cause because of a long list of reasons. (Id.) Thus, this
shows that McMurtry was discussing what the Board had done and why
the Board had done it.
Second, Rieck concedes that the Board passed a resolution to
terminate him with cause (for the listed reasons provided to him)
on September 19, 2018, after he waived his right to a due process

10

hearing. Therefore, McMurtry and HAC are entitled to judgment as
a matter of law because McMurtry’s statements were true.3

Thus,

having

reviewed

this

matter,

and

the

Court

being

advised,
IT IS ORDERED that McMurtry’s motion for summary judgment
(Doc. 38) be, and is hereby, GRANTED.4
This 1st day of April 2021.

Because McMurtry’s statements were substantially true, this Court
need not address McMurtry’s constitutional arguments. See Jean v.
Nelson, 472 U.S. 846, 854 (1985) (quoting Gulf Oil Co. v. Bernard,
452 U.S. 89, 99 (1981) (“Prior to reaching any constitutional
questions, federal courts must consider nonconstitutional grounds
for decisions”)).
4 Count III of Rieck’s amended complaint provides “[t]o the extent
Defendant McMurtry was acting in the scope of his agency and
representation, Defendant HAC is also liable for his conduct. (Doc.
17 at ¶ 42). As explained in HAC’s response joining McMurtry’s
motion for summary judgment, (Doc. 41), because Rieck’s defamation
claim against it is derivative, it fails for the same reasons.
Therefore, HAC is likewise entitled to judgment as a matter of law
on Count III.
3

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