United States District Court, M.D. Alabama, Northern Division
SUSAN RUSS WALKER, Chief Magistrate Judge.
Plaintiff Joseph Redmon brings this action against his former employer, Massey Auto ("Massey"). Plaintiff claims that the defendant terminated his employment because of his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Alabama Age Discrimination in Employment Act ("AADEA), Ala. Code § 25-1-20, et seq. (Complaint, Counts One and Two). He also asserts state law claims of defamation (id., Counts Three and Four) and intentional infliction of emotional distress (id., Count Five). This action is presently before the court on defendant's motion for summary judgment. (Doc. # 27). Upon consideration of the motion, the court concludes that it is due to be granted in part and denied in part.
SUMMARY JUDGMENT STANDARD
A movant is entitled to summary judgment if it "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). For summary judgment purposes, an issue of fact is "material" if, under the substantive law governing the claim, its presence or absence might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). If the movant fails to satisfy its initial burden, the motion for summary judgment will be denied. Kernel Records Oy v. Mosley , 694 F.3d 1294, 1300 (11th Cir. 2012), cert. den., 133 S.Ct. 1810 (2013). If the movant adequately supports its motion, the burden shifts to the opposing party to establish - "by producing affidavits or other relevant and admissible evidence beyond the pleadings" - specific facts raising a genuine issue for trial. Josendis v. Wall to Wall Residence Repairs, Inc. , 662 F.3d 1292, 1315 (11th Cir. 2011); Dietz v. Smithkline Beecham Corp. , 598 F.3d 812, 815 (11th Cir. 2010); Fed.R.Civ.P. 56(c)(1)(A). "All affidavits [and declarations] must be based on personal knowledge and must set forth facts that would be admissible under the Federal Rules of Evidence[.]" Josendis , 662 F.3d at 1315; Fed.R.Civ.P. 56(c)(4). The court views the evidence and all reasonable factual inferences in the light most favorable to the nonmovant. Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC , 702 F.3d 1312, 1316 (11th Cir. 2012). However, "[i]f no reasonable jury could return a verdict in favor of the nonmoving party, there is no genuine issue of material fact and summary judgment will be granted.'" Morton v. Kirkwood , 707 F.3d 1276, 1284 (11th Cir. 2013)(citation omitted).
Request for Rule 56(d) Relief
Defendant filed its motion for summary judgment on November 20, 2013 (Doc. # 27); plaintiff's response was due on December 11, 2013 (Doc. ## 18, 30). Two days before his response deadline, plaintiff sought an extension of time, citing a death in counsel's family; the court allowed plaintiff until January 6, 2014, to respond to the motion for summary judgment. (Doc. ## 31, 32). On that date, plaintiff filed an "objection" to defendant's motion, in which plaintiff represented that due to his incomplete discovery, his own health issues, and deaths in his attorney's family, he was unable to "present essential facts to justify [his] opposition to the motion." (Doc. ## 33, 33-1). Plaintiff indicated in his objection that "discovery is not complete and is scheduled to be completed by April 4, 2014." (Doc. # 33, ¶ 3). In an order entered the following day, the court explained that plaintiff's affidavit and motion were "not sufficient to warrant an extension pursuant to Rule 56(d)." (Doc. # 34, p. 2)(citing Nawab v. Unifund CCR Partners, 2013 WL 6823109, *2 (11th Cir. Dec. 27, 2013)). Thus, to the extent that plaintiff's "objection" sought relief pursuant to Rule 56(d), the court denied the motion. (Doc. # 32). However, it construed plaintiff's objection to seek an additional extension of time due to plaintiff's counsel's extenuating circumstances, and allowed plaintiff an additional seven weeks, until February 25, 2014, to respond to the motion. (Id.). The court also noted that the discovery deadline was February 11, 2014. ( Id., p. 1 n. 1)(citing Doc. # 17, scheduling order).
On February 25, 2014, plaintiff filed a response to the motion for summary judgment. (Doc. # 35). Within this response, plaintiff "objects" to defendant's motion for summary judgment because, inter alia, he has "demonstrated by affidavit that due to his incomplete discovery he cannot present essential facts to justify his opposition." (Id. at p. 1 ¶ 4). He asserts, as he did in his previous objection, that "discovery is not complete and is scheduled to be completed by April 4, 2014." (Id. at p. 1 ¶ 3). Plaintiff attaches no new affidavit or declaration to support his renewed request for Rule 56(d) relief, and - as the court pointed out in its January 7, 2014, order - discovery closed in this matter on February 11, 2014, two weeks before the deadline for plaintiff's response. (See Doc. # 17). To be entitled to Rule 56(d) relief, the movant "must specifically demonstrate how postponement of a ruling on the [summary judgment] motion will enable them, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact.'" Nawab, 553 F.Appx. 856, 859 (11th Cir. 2013)(quoting Fla. Power & Light Co. v. Allis Chalmers Corp. , 893 F.2d 1313, 1316 (11th Cir. 1990))(alteration in Nawab). Plaintiff's present objection provides no grounds justifying Rule 56(d) relief; accordingly, the court will proceed to the merits of defendant's motion for summary judgment.
Plaintiff asserts two counts of defamation against the defendant, pursuant to Alabama law. (Complaint, Counts Three and Four). Plaintiff alleges that "Defendant made false and defammatory [sic] statements about Mr. Redmon to other employees of Massey Auto and to others." (Doc. # 1, ¶ 59). Plaintiff does not allege the precise nature of the allegedly defamatory statements or the circumstances in which they were made, but he indicates that the statements were "about Mr. Redmon allegedly sexually harassing a female employee[.]" ( Id., ¶ 58).
Communications to Defendant's Employees
"To establish a prima facie case of defamation, a plaintiff must show:  that the defendant was at least negligent  in publishing  a false and defamatory statement to another  concerning the plaintiff,  which is either actionable without having to prove special harm (actionable per se) or actionable upon allegations and proof of special harm (actionable per quod)." Federal Credit, Inc. v. Fuller , 72 So.3d 5, 9-10 (Ala. 2011)(emphasis and brackets in original; citations and internal quotation marks omitted). Regarding plaintiff's allegations that defendant made defamatory statements about plaintiff to its other employees, defendant contends that plaintiff cannot establish the "publication" element of his claim, because "any and all statements made by the dealership, to and among the employees, in conducting its investigation into the complaints received regarding the Plaintiff do not constitute publication[.]" (Defendant's brief, Doc. # 28, p. 20).
In Nelson v. Lapeyrouse Grain Corp. , 534 So.2d 1085 (Ala. 1988), the Alabama Supreme Court discussed its McDaniel/Burney  "no publication" rule - i.e., that communications between corporate managers or between fellow corporate employees concerning the corporation's business do not constitute "publication" for purposes of a defamation claim - and concluded that the defendant corporation's president's allegedly defamatory communications to employees during the course of investigating a theft from the corporation fell within the rule. Id. at 1093. The Alabama Supreme Court found it "irrelevant" that Brothers, the corporate officer, had communicated the plaintiff's involvement in the theft to Taylor, a non-managerial employee; the court stated that, "[a]s long as a communication to a non-managerial employee falls within the proper scope of that employee's knowledge or duties, the McDaniel/Burney rule applies to non-managerial employees as well as to managerial employees." Id . The court reasoned:
Taylor worked with Nelson at the grain elevator, and it is reasonable to conclude that he might have had important information to disclose to Brothers as to the cause of the grain shortage. By taking part in the investigation, Taylor acted within the scope of his employment and within the line of his duties as a Lapeyrouse employee. Likewise, Brothers and Hall acted within the scope of their employment and within the line of their duties as corporate officers investigating a theft. Thus, Brothers's alleged defamatory communications to Hall and Taylor were not communications to third persons but to agents of ...