Marzolf v. George P. Johnson Company

Filing 20

OPINION and ORDER Granting Defendant's re 10 MOTION for Summary Judgment - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Gerard Marzolf,
Plaintiff,
v.

Case No. 12-cv-15147
Hon. Judith E. Levy
Mag. Judge Mona K. Majzoub

George P. Johnson Company,
Defendant.
________________________________/
OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [10]
This is a defamation suit.

Pending is defendant’s motion for

summary judgment.
I.

Background
Plaintiff was an employee of defendant.

On April 3, 2012, a

female employee filed a sexual harassment claim against plaintiff. As a
result of that investigation, on April 19, 2012, defendant issued a
written reprimand to plaintiff, stating that plaintiff conducted himself
inappropriately,

exhibited

“extremely

poor

judgment”

in

his

relationship with the female employee, was “insubordinate,” and

“displayed blatant disregard for a long standing policy regarding the
employment of relatives in a direct reporting capacity[.]” (Dkt. 14-3, at
2.)1
Plaintiff was demoted, stripped of managerial responsibilities, and
given extensive instructions regarding mandatory corrective action he
was to take. (Id. at 2-3.)
Plaintiff filed suit on November 20, 2012, alleging defamation and
“breach of the duty to keep an investigation confidential.” (Dkt. 1, at 23.)
II.

Legal Standard
Summary judgment is proper 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 Court may
not grant summary judgment if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248. The Court “views the evidence,

This text is from an exhibit attached to plaintiff’s response to
defendant’s motion. (Dkt. 14.) The motion was filed on October 31,
2013, and plaintiff’s response was filed on January 24, 2014, after an
order to show cause issued. The Court cites this untimely response only
because it provides dispositive evidence.

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all facts, and any inferences that may be drawn from the facts in the
light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v.
Mt. Hawley Ins. Co., 95 F. App'x 132, 135 (6th Cir. 2004) (citing
Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir.2002)).
III.

Analysis

A. Defamation
Plaintiff alleges that the general manager employed by defendant
told “individuals” that plaintiff 1) “was not a good manager;” 2) was
“doing things behind peoples back [sic]”; 3) “let things go;” and that 4) “a
women [sic] has a serious sexual harassment allegation against the
plaintiff.” (Dkt. 1, at 2.) This, plaintiff argues, constitutes defamation.
The elements of a cause of action for defamation under Michigan
law are: “1) a false and defamatory statement concerning the plaintiff,
2) an unprivileged publication to a third party, 3) fault amounting at
least to negligence on the part of the publisher, and 4) either
actionability of the statement irrespective of special harm (defamation
per se) or the existence of special harm caused by the publication
(defamation per quod).” Burden v. Elias Bros. Big Boy Rests., 240 Mich.
App. 723, 726 (2000). To properly state a claim for defamation, the
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plaintiff must “plead precisely the statements about which [he]
complain[s].” Royal Palace Homes, Inc. v. Channel 7 of Detroit, Inc., 197
Mich. App. 48, 57 (1992).
Plaintiff does not allege that the general manager defendant
employed made any specific statement to any other person, only that
the general manager made statements of the type described in
plaintiff’s complaint to “individuals.”

Plaintiff’s only supporting

documentation is the “affidavit” of Phil Williams, a fellow employee of
defendant. (Dkt. 14-5.)
Although the document has none of the hallmarks an affidavit
requires, such as sworn notarization, it could still ostensibly be
admissible as an unsworn declaration under 28 U.S.C. § 1746, provided
the author declares under penalty of perjury that the statement is true.
However, the document also lacks that language.

The document

contains numerous handwritten notes and edits that appear to have
been added after the document was typed.

Finally, the document

references only a single alleged statement that its author has any
actual knowledge of: the general manager’s statement to Williams that
the female employee made a “severe sexual harassment charge” against
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plaintiff.

(Dkt. 14-5, at 3.)

This single document, which lacks any

indicia of reliability, is insufficient to sustain plaintiff’s otherwise
entirely deficient defamation claim.2
Plaintiff has failed to plead any of the facts necessary to sustain
his defamation claim. Accordingly, the Court dismisses the claim.
B. Breach of Duty to Maintain the Confidentiality of an
Investigation
Plaintiff’s allegation that defendant breached a duty to keep the
investigation confidential is unsupported in his complaint by any
reference to any contract, law, or other obligation that the employer had
to keep the investigation confidential.

In plaintiff’s response brief,

plaintiff says that the duty arose from section 202C of the employee
handbook, which plaintiff purports to quote from, but did not provide to
the Court. As such, the Court has no basis to conduct an analysis of
whether the employee handbook created a contractual or other
obligation not to reveal complaints.

If the Court were inclined to entertain the document as admissible
evidence, the Court would then dismiss the claim on the grounds that
that statement regarding the harassment allegation is, at the least,
substantially true. “[S]ubstantial truth is an absolute defense to a
defamation claim.” Collins v. Detroit Free Press, Inc., 245 Mich. App.
27, 33 (2001).

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The complaint states only that the general manager “made the
comment to everyone to ‘tell all your people that the women [sic] has
serious sexual harassment allegations.’” Plaintiff does not specify who
“everyone” consists of, when this command went out, or any person who
actually heard the command. Having provided no evidence that such a
duty even arguably existed, let alone any facts supporting a claim for
breach of this purported duty, the Court dismisses the claim.
IV.

Conclusion

For the above stated reasons, plaintiff has failed to raise any
genuine issue of material fact with regard to either of his stated claims.
Accordingly,
The defendant’s motion for summary judgment (Dkt. 10) is
GRANTED; and
Plaintiff’s complaint is DISMISSED.
IT IS SO ORDERED.

Dated: August 29, 2014
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 29, 2014.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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