Marroquin v. Exxon Mobile Corporation

Filing 124

MEMORANDUM OPINION re: 81 Motion for Summary Judgment. Signed by District Judge Claude M. Hilton on 5/27/09. (tfitz, )

IN THE

UNITED

STATES

DISTRICT

COURT

FOR THE

EASTERN DISTRICT

OF VIRGINIA

Alexandria Division

L

IS

2 7 /:3
JUAN CARLOS MARROQUIN,
CLLf'K. U S. D.:_ i r.\ '. .1 O^

ALEXANDRIA. V.'RG'NIA

Plaintiff,
v.

Civil Action No.
CORPORATION

08-391

EXXON MOBIL

d/b/a ExxonMobil Lubricants & Petroleum Specialties
Company,

Defendant.

MEMORANDUM OPINION

This matter comes before
Summary Judgment;

the Court on Defendant's Motion for
Plaintiff's

Plaintiff's Motion in Limine;

Motion for Ruling on Objections

to Witnesses,

Exhibits and

Deposition Designations
to Lift
Motion

Filed by the Parties;

Plaintiff's Motion
Defendant's
to

Protective Order with Sealing Provisions;
in Limine; Defendant's Motion

for Ruling on Objections

Witnesses,

Exhibits,

Deposition Designations,

and Counter-

Deposition Designations;
Permission to Use
Courtroom

and a Joint Motion for

the Court's
in the

Evidence

Presentation Equipment

for Trial.

Plaintiff,

Juan Carlos Marroquin,

brought

this

suit

against

Defendant,

his

former employer Company -

the ExxonMobil on April 24,

Lubricants

&

Petroleum Specialties

2008.

Plaintiff

alleges

that Defendant,

in violation of

42 U.S.C.

§

1981,

discriminated against him on the basis of his race and/or
national origin, affecting the terms, conditions, and privileges

of his employment, termination.

and resulting in his discriminatory that employees of Defendant

Plaintiff also claims

knowingly made materially false and misleading statements about the circumstances of his termination, conduct that constitutes

defamation and defamation per se under Virginia law.

On April 26,
employment. At

2007,

Defendant terminated Plaintiff's
termination, Plaintiff had worked

the

time of his

for Defendant

for approximately 20 years and held the position of

Americas Marketing Manager.

He was Defendant's highest ranking

United States executive of Hispanic descent.
Plaintiff's investigation of termination followed Defendant's a marketing event internal

co-sponsored by Defendant and

held in Miami,

Florida during the weekend of
2007 Super Bowl game (the

the National
"Super Bowl"),
5, 2007.

Football League's
Friday,

from
This the

February 2,

2007

through Monday,

February

investigation found that

in the planning and execution of

event

Plaintiff

failed to exercise appropriate managerial company policies. Following the

oversight and violated several
investigation,
Defendant also

Defendant

terminated Plaintiff's employment.
disciplined, or forced the resignation

terminated,

of

several

of

Plaintiff's

subordinates and

supervisors

for

their

behavior with respect

to

the event.

Among

the employees

disciplined or terminated by Defendant
participation in was the the events of

for their planning of and
weekend, Plaintiff

the Super Bowl

only non-Caucasian.

In late 2006,
client of charitable February 3,

Cadillac,

an automobile manufacturer and
co-sponsoring a

Defendant's,

approached Defendant about

celebrity go-kart race 2007 the day before

to be held on Saturday, the Super Bowl. When this co-

sponsorship opportunity arose,
actively participating
significant business sponsorship,

Defendant's Marketing Group was
to finalize a financially
The coto

in an effort

arrangement forum

with Cadillac. for Defendant's

by providing a

executives

socialize with Cadillac dealers,

seemed

like an opportunity to

develop the existing relationship with Cadillac and generate
additional business. Furthermore, the media coverage of the on

event promised additional

financial benefits.

To capitalize

these opportunities,

it was proposed that Plaintiff, move

the Marketing Group,

under the management of
the co-sponsorship.

forward with support of

Plaintiff

delegated organization of

the

event

to his

subordinate,

Benjamin Tait. from Tait,
to the

On December confirming

8,

2006,

Plaintiff the endorsements

received an email
necessary

that all

to commit
tax,

event had been received from
affairs departments.

Defendant's

legal,

and public

Plaintiff agreed to Defendant's participation as a co-sponsor and
approved the cost.

Defendant and Cadillac the co-sponsorship. For its

evenly split $200,000.00,

the

$400,000.00

cost

of

Defendant

received

shared naming of
and was

the event -

the

"Cadillac / Mobil
its participation. Super Bowl.

1 Grand Prix"
Defendant

entitled

to advertise

also

received four tickets

to the

Defendant would

later receive

two additional Super Bowl

tickets

from its external

marketing company at no additional cost.
Around the first week of January 2007,
the co-sponsorship with Mike Mullins,

Plaintiff

discussed
President

Defendant's Vice

of Marketing.

He asked Mullins
the

if he planned to attend the cogame the following day. He

sponsored event and

Super Bowl

also asked Mullins Kohlenberger, Plaintiff

to speak with Defendant's

President, Mullins

Gerald told

about his

intended participation. and that

that he would do so,
game,

if he and Kohlenberger

attended the

they would each bring a guest.

Following this conversation with Mullins, instructed Tait additional

Plaintiff

to contact Cadillac about obtaining four to the Super Bowl game. Cadillac responded

tickets

that it could not provide additional tickets as part of the cosponsorship package,
purchased. Plaintiff

but

that

four additional

tickets

could be
those

then directed Tait

to purchase

tickets

at a cost of

approximately $13,000.00.

During the week of Plaintiff game, that he

January 22,

2007,

Mullins

confirmed with Super Bowl or in

and Kohlenberger would attend Plaintiff never

the

each with a guest.

informed Mullins tickets

Kohlenberger that he had purchased four Super Bowl

addition to

those already obtained through the co-sponsorship. Plaintiff's
scheduled

As planning for the co-sponsorship continued,
subordinate, for the Tait, solicited tickets He

to private parties

same weekend.

contacted Cadillac

and Defendant's

advertising agency about obtaining eight
would be hosted by Defendant's vendors Illustrated on the evening of -

tickets

to parties

that

ESPN and Sports February 3, 2007. Tait

Saturday,

eventually secured tickets
agency.

to the ESPN party from the advertising

On the evening of arrived in Miami

Friday,

February 2, events.
Over

2007,

Plaintiff

for the weekend's

Plaintiff's wife and
the course of the

son accompanied him for

the weekend.

weekend,
hotel

Plaintiff and his

family made a number of charges to the
that were
to

room -

including meals and a pay-per-view movie
credit card

later charged to a corporate Plaintiff.

issued by Defendant

While in Miami,

Plaintiff participated in two events using
He attended the ESPN party

tickets obtained through Defendant.

with his wife using the
the Super Bowl

tickets solicited by Tait,
son.

and attended

game with his

Shortly after returning from Miami, Division initiated an investigation into who organized,
weekend's

Defendant's Audit the actions of employees Super Bowl

supervised,

and participated in the

events.

Because

Kohlenberger

conducted no company business

or even

spoke with any Cadillac dealers while at returning from Miami, Defendant
Plaintiff

the

Super Bowl,

upon

he

instructed his assistant When his assistant

to reimburse

for his

tickets.

contacted
Plaintiff

to ask how Defendant could be

reimbursed,

responded that repayment was unnecessary because provided to Defendant as part of
Kohlenberger nonetheless value of the tickets

the

tickets were

its co-sponsorship.
for the When a face

submitted a check Controller.

to Defendant's

Controller employee contacted Plaintiff
Plaintiff explained that because the

to discuss

the matter,
was an event

Super Bowl

game

sponsored by Defendant,

Kohlenberger should not

have

to pay

for

the

tickets personally.
Bud Carr, a Senior Staff Auditor with more assigned to the investigation. than He 20 years of

experience was

concluded that

four of Defendant's

employment policies were Conflicts of

implicated by the Ethics, Gifts and

actions he discovered Entertainment, Following

Interest,

and Corporate Assets. this investigation, J. Stephen Simon, Defendant's

Senior Vice President and member of its Board of Directors, considered Carr's report, reviewed the policy violations,
On April 26, 2007, the

and

made disciplinary determinations.

employees investigated by Carr were called to the office of Defendant's Executive Vice President, they were James Marcogliese, where

informed of Defendant's disciplinary decisions. including Jeffrey Eckstein, the manager and his

Several employees, of strategic accounts

in Defendant's Sales Division,

subordinate Jeffrey Martin,
Defendant gave Mullins,
the option of resignation or

received written reprimands.
Plaintiff's
termination.

immediate
Mullins'

supervisor,
forced

resignation caused him a significant

financial

loss

in forfeited

shares of Defendant's restricted stock.
discretionary bonus. Defendant determined that

He also lost his

Kohlenberger's

violation of

company practices and procedures was

limited to his attending the

Super Bowl game with his
Yet, having lost

son using tickets paid for by Defendant.
the
55.

faith in his ability to lead
age

company,
In February in

Defendant 2008,

forced Kohlenberger to retire at He

Kohlenberger retired.

received no restricted stock

the

last year of his
Defendant

employment.
Plaintiff, Tait, and Brad

immediately terminated

Onofrio,

another of

Plaintiff's

subordinates.

Plaintiff's

termination letter explained that he failed to exercise adequate management oversight of the weekend's events and violated company
policy. Following these meetings, the terminated employees were

taken back to their offices.
collect

They were given an opportunity to
then escorted from the

their personal belongings and were

premises.

Summary judgment issue as

is appropriate where fact. See Fed. R.

there Civ.

is no genuine P. 56{c). Once
the

to any material

a motion for summary judgment

is properly made and supported,

opposing party has
exists. 475 is U.S.

the burden of

showing that a genuine dispute
Co. v. Zenith Radio Corp.. exists when there jury could return a

See Matsushita Elec. 574, 586-87 (1986).

Indus.

A genuine

issue

sufficient evidence on which a reasonable
in favor of the non-moving party.

verdict

See Anderson v.

Liberty Lobby.

Inc.,

477 U.S.

242,

248

(1986) .
a genuine

Mere

speculation

by the non-moving party

"cannot

create

issue of

material
1985); 411-12

fact."

Beale v.

Hardy,

769

F.2d 213,
Serv., is

214

(4th Cir.
800 F.2d 409,

see

also Ash v. 1986).

United Parcel

Inc..

(4th Cir.

Summary judgment

appropriate when,

after discovery,

a party has

failed to make a

"showing sufficient to that

to establish the existence of an element essential
party's
proof at

case,

and on which

that party will
v. Catrett,

bear
477

the burden of
U.S. 317, 322

trial."

Celotex Corp.

(1986).

Claims brought under 42 U.S.C.
same method of proof
v. Potomac Elec.

§

1981

are

subject

to the
Thompson

as

claims brought under Title VII.
312 F.3d 645, 649 n. 1

Power Co.,

(4th Cir.

2 002) .

The plaintiff

begins with

the

burden of

establishing a

prima facie case of
establishes a prima
legitimate,

discriminatory termination.
facie case,

If

the plaintiff

the defendant must articulate a
reason for the plaintiff's

non-discriminatory

termination.

If

the defendant produces

this

non-discriminatory

rationale

for the termination,
the evidence

the plaintiff must
that his

then prove by a
stated

preponderance of

former employer's

reason for the adverse employment McDonnell Holland v. 2007), Douglas Wash. Corp. Homes. 128 v. Green. 487

action was merely pretextual. 411 U.S. F.3d 208, (2008). 792, 802-03 (1973);

Inc.. S.

213-14

(4th Cir.

cert,

denied.

Ct.

955

In a case that alleges

racially discriminatory discipline or

discharge and requires a comparison of disciplinary actions

against different employees,
case by showing that:
(ii)

plaintiff establishes a prima facie
is a member of a protected class;
"was comparable in seriousness" and (iii) his to

(i)

he

his prohibited conduct employees

that of

outside his protected class;

discipline was more severe than that enforced against
employees outside his protected class.
Corp.. 988 F.2d 507, 511 (4th Cir.

the

Cook v.

CSX Transp.

1993).

Defendant's in a termination

reasons

for Plaintiff's

termination are audit

captured

letter and in an internal

that preceded

Defendant's disciplinary actions. termination to Plaintiff
Management adequate has

Defendant's

letter of

stated:
that you failed of the to exercise Company's

concluded

management

oversight

participation in activities related to the Super Bowl and

that in addition you took specific actions that violated established practices and procedures of the Corporation. Those specific actions included:
· Approving an improper accrual into 2006 of $73,000 for services that the Company did not receive until
2007;

·

Taking
Company;

your

son

to

the

game,

without

your

supervisor's approval,
·
·

on a ticket paid for by the
for your family;
to solicit a

Charging to the
Permitting
Super Bowl

Company meals
subordinates

and

your

Company

customer and several vendors for tickets to various
events.

First,

Plaintiff's

actions had violated Defendant's The audit determined that
received through the

Corporate Assets policy.
to the four Super Bowl

in addition
co-

tickets

sponsorship, Bowl

Plaintiff

authorized funds

the purchase of - an additional

four more expense

Super

tickets with corporate

of over

$13,000.00.

Plaintiff charged all of his
for his

room expenses,
to his that

including expenses corporate credit

wife's and son's meals,

card.

Company policy authorized use of only.

card for business purposes Second, the audit

cited a violation of Defendant's

Conflict

10

of

Interest policy.

The audit found that Plaintiff knew his

subordinates were private parties Third, the

soliciting tickets to the Super Bowl and and vendors.

from Defendant's customers audit determined that

Plaintiff violated The audit found that

Defendant's Gifts and Entertainment policy.

Plaintiff did not obtain prior approval before bringing his to the Super Bowl game on a company-paid ticket,
his wife attended a private

son

and that he and

Super Bowl party using $500.00

tickets solicited from Defendant's advertising agency.

Finally,

the audit cited instances

in which Plaintiff

violated Defendant's Ethics policy.
accrued $73,672.00 sponsorship to the for the 2007

The audit found that Tait

Super Bowl weekend and coPlaintiff

2006 marketing budget and that

approved this accrual.
misled management

The audit also found that

Plaintiff
the

regarding the source and value of tickets.
he is a member of

additional Super Bowl
Plaintiff must

show that

a protected

class,

and that employees outside of his protected class engaged comparable seriousness to his
754

in misconduct of

own,
F.2d

but

received
(4th

lesser discipline.

See Moore v.

Charlotte.

1100

Cir.

1985).

Plaintiff

claims

that other employees

engaged in the

same conduct and received substantially lesser discipline. However, lenient the record shows did not that those who engage received comparatively in conduct comparable

discipline

in fact

11

to Plaintiff's,

while

those who behaved similarly were

subject

to

severe disciplinary action.

Plaintiff was

the

supervisor of

those who Defendant determined had seriously violated company policies.
option of

Like them,
resignation.

he was

immediately terminated with no
the subordinate of those

Plaintiff was

whose behavior violated company policy or fell

short of

managerial expectations,

but who did not actively participate

in

the planning and execution of the co-sponsorship or the other
events of the Super Bowl weekend. Those individuals were

disciplined severely but not

immediately terminated.

The first group of disciplined employees

includes those who

received oral and written reprimands - Jeffrey Eckstein and his
subordinate Jeffrey Martin. several not Though Plaintiff attempts to draw

comparisons between himself and Eckstein,

the record does

support these comparisons.

The Plaintiff had a unique

responsibility for the organization and execution of sponsorship.

the

co-

Plaintiff approved the co-sponsorship and delegated

the organization and execution of the event
Tait.

to his subordinate

Plaintiff claims that Eckstein solicited additional Super
Bowl tickets from Defendant's advertising agency, but the record

does not support this assertion.

Defendant's audit found that
to attend a

Eckstein's only violation of company policy was

private Super Bowl party with tickets solicited from Defendant's

12

advertising agency. The second group of disciplined employees includes Plaintiff

and those others who were immediately terminated.
concluded that Plaintiff, along with Tait

Defendant
violated

and Onofrio,

several
expenses

company policies.

Like Tait,

Plaintiff

charged personal

to Defendant and attended a private

Super Bowl party

with tickets

solicited from Defendant's advertising agency.

Plaintiff was also found to have attended the Super Bowl game
with his son on a company-paid ticket without prior approval.
also concluded that Plaintiff's improper

Defendant

supervision of Tait represented a failure Plaintiff knew of Tait's solicitation of
Bowl and private parties. Yet he did not

in management. tickets for the Super

correct Tait's actions,

even though this

leveraging of Defendant's advertising

relationship with vendors violated company policy. also approved Tait's manipulated accrual of expenses
2007 Super Bowl weekend to the 2006 budget.

Plaintiff from the

The third and final group of disciplined employees

includes

Mullins and Kohlenberger.

Defendant determined that like
improper judgment and

Plaintiff these executives did use

exercised inadequate oversight of their subordinates with respect
to the co-sponsorship. Yet they did not participate in

Plaintiff's authorization and organization of

the co-sponsorship.

Furthermore,

their specific violations of company policies were
13

not as

severe as
to the

Plaintiff's.
corporate

They did not
card.

charge personal

expenses

credit

Though they brought

guests

to the Super Bowl without permission,
the

they did not

knowingly attend the game using one of tickets purchased by Defendant,
purchase of the additional

four additional

and they did not authorize the
tickets. In fact,

Super Bowl

Defendant

initiated its

investigation of

this matter following

Kohlenberger's attempt
reimbursing the company

to mitigate any perceived wrongdoing by
for his tickets.

In spite of
matter was less

its

conclusion that

their culpability in this
Defendant demanded

significant

than Plaintiff's,

both Kohlenberger's and Mullins' company.
of

involuntary separation from the violation
and

Defendant's

investigation found that Mullins'

company policies was more significant case separation was immediate.

than Kohlenberger's, forced

in his

Kohlenberger's

resignation came the following year.
Mullins suffered significant
from the

Both Kohlenberger and
losses due to their forced

financial

separation

Corporation.

Establishing a prima

facie case of

discriminatory

termination is not a
Cook. 988 F.2d at
of

"precise,

mechanically-imposed formulation."
to
a

512.

"[T]he burden is on the plaintiff
facts, which,

prove a set

circumstantial

in the absence of leads one

legitimate non-discriminatory explanation,

to conclude

with reasonable probability that

the action taken against him was

14

the product of discrimination."

Id.

Plaintiff

cannot establish

a prima facie case of disparate treatment merely by singling out
"one prior instance of . . less . ." . . severe Id. . treatment at 508-09. of a person outside Court must

the protected class examine the "entire

The

record

rather

than seizing upon a it." an Id. at 512.

particular piece of Plaintiff has

evidence contained within no facts that would raise

inference of

discriminatory intent on Defendant's part. record shows severe
class

In its

entirety,

the

that

the discipline

Plaintiff

received was no more

than that meted out
whose behavior was of

to employees outside of his protected
comparable seriousness. The

investigation found that

Plaintiff's violations of company

policies were uniquely severe actions distinguishing him from his
fellow employees. four additional Plaintiff alone authorized the purchase at significant expense of to the

Super Bowl

tickets

Defendant.

Plaintiff did so,

at

least

in part,

to facilitate a

family member's attendance at
supervisors about the source

the Super Bowl,
and cost of those

and then misled his
tickets.

Even assuming that

Plaintiff established a prima

facie

case,

Defendant has articulated a non-discriminatory reason for Plaintiff's Plaintiff
employer's

termination.

The burden,

therefore,

remains with the
a

"to prove by a preponderance of
stated reasons 'were not its

the evidence that
reasons,

true

but were

pretext

for discrimination.'"

Holland.

487

F.3d at

214

(quoting

15

Hill v.
Cir.

Lockheed Martin Logistics Mcrmt.,
(en bane)).

354

F.3d 277,

285

(4th

2004)

This court must weigh

"the probative value

of

the proof

that

the employer's explanation is quoting Reeves v.
149 (2000).

false."

Holland,

487

F.3d at 215, 530 U.S. 133,

Sanderson Plumbing Prods.,
is appropriate
fact as

Inc..
if

Summary judgment
issue of

the Plaintiff
the employer's

"created only a weak

to whether

reasons were untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred."
quoting Reeves. 530 U.S. at 148.

Id..

This Court must not

substitute

its

judgment

for the good

faith decisions of Defendant in exercising discipline over its
employees. As in Title VII litigation, a federal court "does not

sit as a kind of
of

super-personnel department weighing the prudence
charged with employment

employment decisions made by firms

discrimination
293, 298-99

.

.

.

."

DeJarnette v.

Corning.

Inc..

133

F.3d

(4th Cir.

1998)

(internal quotation marks omitted). this Court

In measuring the must

seriousness of employee misconduct,

take note that an employer is free

to develop its own

criteria for employment decisions,
based. If Beall v. Abbott Labs.. 130

so long as they are not raceF.3d 614, 619 (4th Cir. 1997).

the employer's

reason for termination is not

forbidden by law,

"it

is not our province to decide whether the reason was wise,

fair,

or even correct,

ultimately,

so long as

it truly was the

16

reason for

the plaintiff's

termination."

DeJarnette,

133

F.3d at

299

(internal quotation marks omitted).
Defendant presents non-discriminatory reasons for

Plaintiff's

termination.

In part because of

the

institutional

mechanisms Defendant Defendant's

had in place for the

to review employee misconduct, termination were Va. Dep't of Gen. "clear and Servs.. 753

stated reasons

reasonably specific."

Gairola v.

F.2d 1281, Affairs v.

1288

(4th Cir.

1985)

(quoting Tex. 258 (1981)).

Dept.

Of

Cmtv.

Burdine,

450 U.S.

248,

The matter was
a career auditor for use

referred to Defendant's Audit Department, was assigned to the case and produced a

where

thorough report

by Defendant's decisions.

executives when making their disciplinary

Plaintiff must produce

some

evidence

that Defendant's

proffered reasons

for his

termination were a pretext "[A] plaintiff's

for

underlying discrimination. discrimination in and of substantial evidence of

own assertions of to counter for

themselves are

insufficient

legitimate nondiscriminatory reasons Williams v. Cerberonics,

an adverse employment action."

Inc.,

871 F.2d 452,

456

(4th Cir.

1989).

Plaintiff makes a series of

procedural objections the investigation.
claiming that

to the manner in which Defendant conducted

He also suggests a discriminatory motive,
Hispanic and that Carr

Carr and Simon knew he was in conducting the

"clearly had an agenda

investigation,

and made

17

the

recommendations
There

as
is

to who had,

or had not,

committed policy
record, however,

violations." suggesting

simply no evidence

in the

that

Plaintiffs'

race or ethnicity had any bearing on

Defendant's

investigation or disciplinary determinations.
second claim alleges defamation and defamation

Plaintiff's

per se.

Plaintiff's

Complaint

identifies

seven allegedly

defamatory statements.

In his Opposition to Summary Judgment,

however,

Plaintiff restricts his argument to only two of
First, immediately following Plaintiff's

these

statements.

termination,
that

Kohlenberger allegedly told Plaintiff's
terminated for doing

assistant

Plaintiff was

"something very bad."

Second,

following a business meeting in Mexico, fellow employee that the

Jeff Martin

allegedly told a
"inappropriate" Cadillac

co-sponsorship was
commitment to

and established an of

"improper" dealings.

in terms

future business

To prove defamation under Virginia law,
demonstrate with, (iii) (i) publication of, intent. (ii)

Plaintiff must
statement Inc.. Inc. 993 v.

an actionable

requisite 1092

Chapin v.

Knight-Ridder.

F.2d 1087,

(4th Cir.

1993).

See generally Gazette.

Harris. (1985).

325 S.E.2d 713

(Va.

1985),

cert,

denied.

472 U.S.

1032

To prevail on his claim for defamation,

Plaintiff must
the
612

prove by a preponderance of
allegedly defamatory

the evidence not only that
are false, Jordan v.

statements

Kollman.

S.E.2d 203,

207

(Va.

2005),

but

that

they are defamatory,

so

18

"harm[ing]

the reputation of the

another as

to

lower him

in the from 1092

estimation of

community or

to deter third persons Chapin. 993 F.2d at

associating or dealing with him."

(quoting Restatement

(Second)

of Torts

§

559

(1977)).

If

the

statements at issue were objectively true,
protected expressions defamation. Am. of opinion, there Inc. is v.

not defamatory,
no actionable Williams. 568

or

Commc'ns.

Network,

S.E.2d

683,

686

{Va.

2002).

Whether a statement

is actionable

is a

matter of
at 206-07

law to be determined by this
(citing Chaves Plaintiff does v. Johnson.

Court.
S.E.2d

Jordan,
97, 101

612 S.E.2d
(Va.

335

1985)).

not produce any evidence demonstrating

that these

statements were

false.

While he objects

to his

termination and to his former employer's characterization of his
behavior, it is objectively true that Defendant fired Plaintiff

after an investigation found that he violated a number of corporate policies and misled supervisors and investigators about

his wrongdoing.

The statements Plaintiff cites are reasonable
for the causes of his dismissal. Plaintiff does Yet to

short-hand descriptions

substantiate his claim for defamation,
than reassert that

little more

the documented investigation and stated

rationale for his termination were a pretext for discrimination.
Also, these statements are not defamatory.
"make the plaintiff appear odious,

A defamatory
infamous, or

statement must

ridiculous,"

and must be more than "[m]erely offensive or

19

unpleasant."

Chapin.

993

F.2d at

1092

(internal quotations

omitted).

While perhaps upsetting to Plaintiff,
these mild assessments of his

he

is not able

to show that his

termination diminished

reputation to anyone.

Even if Plaintiff produced evidence demonstrating that
statements of opinion. were defamatory, Statements of

these

they would be protected expressions opinion are "relative in nature and

depend largely upon the

speaker's viewpoint,"

whereas

statements

of

fact are those which are
Fuste v.
(Va.

"capable of being proven true or
Inc.. 575 S.E.2d

false."
858,

Riverside Healthcare Ass'n.
2003).

861-62

The statements cited by Plaintiff are vague and subjective,

and they do not contain a
Fuste. 575 S.E.2d at 137 (Va. 861,

"provably false factual connotation."
citing Yeagle v. Collegiate Times. 497

S.E.2d 136, conduct as

1998). or

The characterization of

Plaintiff's

"very bad"

"inappropriate,"

or creating an

"improper"
that rest

commitment with a customer are expressions of opinion
on each speaker's perspective. See, that e.g.. Am. Commc'ns that

Network.

Inc.,

568

S.E.2d at

686

(holding
to

a statement

management

team was

replaced due

"failure

to establish

effective operations"

was either objectively true or opinion).

The comments cited by Plaintiff were an opinion of the scope and
magnitude of Plaintiff's wrongdoing that cannot be proven false.

Plaintiff's claim that these
20

statements

are also defamation

per se fails.

Statements constitute defamation per se when they

(i)

impute to a person unfitness to perform the duties of his
or want of integrity in the discharge of those

employment,

duties;

or

(ii)

prejudice such a person in his or her profession
Nationwide Mut. Ins. Co.. 636 S.E.2d 447,

or trade.

Tronfeld v.

449-50
must be

(Va.

2006).

To be actionable under this test,

a statement

"necessarily hurtful

in its effect upon plaintiff's

business and must affect him in his particular trade or

occupation,"

and there must be

"a nexus between the content of

the defamatory statement and the skills or character required to carry out the particular occupation of the plaintiff."
v. Moore. 275 S.E.2d 632, 636 (Va. 1981)

Fleming

(internal quotation

omitted).

The vague statements of Kohlenberger and Martin do not

establish the required nexus with Plaintiff's particular
employment responsibilities or ability to perform his job that

would support Plaintiff's claim of defamation per se. For the reasons stated above, Defendant is entitled to

summary judgment on Plaintiff's claim of discriminatory

termination,
se.

and on the claim of defamation and defamation per
issue.

An appropriate order shall

21

/§/

Claude M. Hilton United States District Judge

Alexandria,

Virginia

May j27

,

2009

22