BLACK v. USHER Transp.
| Decision Date | 29 March 2011 |
| Docket Number | Case No. 2:10-cv-0003 |
| Parties | PAUL BLACK, Plaintiff, v. USHER TRANSPORT, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION TEXT STARTS HERE
OPINION AND ORDER
This matter is before the Court for consideration of Defendant's motion for summary judgment (ECF No. 47), Plaintiff's memorandum in opposition (ECF No. 50), and Defendant's reply memorandum (ECF No. 51). For the reasons that follow, the Court GRANTS in part and DENIES in part Defendant's motion.
Plaintiff, Paul Black, resides in Groveport, Ohio. (ECF No. 3, at ¶ 2.) Black worked for Defendant, Usher Transport ("Usher"), as a truck driver until he was fired in April 2007. (Id. at ¶¶ 1, 2.)
After Usher terminated Black, he applied for a truck driver position with Landstar in 2009 and he was required to sign multiple forms in the application. (ECF No. 30, at 80:8-11.) Black permitted Landstar to contact his previous employers regarding his employment history. (ECF No. 30, at Ex. C.) In approximately mid-August 2009, Landstar sent a Driver Employment Verification Form ("Form") to obtain Black's previous employment information from Usher. Missy Powers, an Usher representative, received and completed the Form based on information from Black's personnel file with Usher. (ECF No. 29-4, at ¶¶ 2, 3.) Mike Baker, Vice President of Safety for Usher, testified that a previous employee's personnel file contains information about that previous employee's employment history with Usher. (ECF No. 46, at 15:3-8.)
After Usher returned the completed Form to Landstar, Landstar decided not to hire Black. (ECF. No. 3, at ¶ 3.) Black asserts that the Form contains three errors regarding his previous employment with Usher: that he had been arrested while on the job, that he had had an unauthorized passenger in his truck, and that he had tested positive for a controlled substance in the last three years. (ECF No. 30, at 96:8-18.)
Black filed suit against Usher alleging defamation. On October 26, 2010, Usher filed its motion for summary judgment. That motion is now ripe for review.
Under the Federal Rules of Civil Procedure, 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). The moving party bears the initial burden of presenting parts of the record which illustrate that no genuine issue of material fact exists. Havensure, L.L.C., v. Prudential Ins. Co. of Am., 595 F.3d 312, 315 (6th Cir. 2010) (citing White v. Baxter Healthcare Corp., 533 F.3d 381, 389-90 (6th Cir. 2008); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The Court may grant the motion if the nonmoving party fails to establish a sufficient showing of the existence of a required element that the nonmoving party has the burden of proving at trial. Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 577 (6th Cir. 2007) (citing Celotex Corp., 477 U.S. at 322).
The Court must view the factual evidence and draw reasonable inferences in a light most favorable to the nonmoving party. Corrigan v. U.S. Steel Corp., 478 F.3d 718, 723 (6th Cir. 2007) (citing Thomas v. Cohen, 453 F.3d 657, 660 (6th Cir. 2006)); Ctr. for Bio-Ethical Reform Inc. v. City of Springboro, 477 F.3d 807, 820 (6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A nonmoving party relying on mere allegations or denials of the moving party's pleadings is not sufficient; rather, the nonmoving party must establish specific facts showing there is a genuine issue of material fact. Havensure, 595 F.3d at 315 (citing Moldowan v. City of Warren, 578 F.3d 351, 354 (6th Cir. 2009)). A genuine issue of material fact exists if the outcome could be affected by a disputed fact or if the evidence is such that " 'a reasonable jury could return a verdict for the nonmoving party.' " Beck-Wilson v. Principi, 441 F.3d 353, 359 (6th Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Accordingly, the central issue is " 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Knox v. Neaton Auto Prods. Mfg. Inc., 375 F.3d 451, 456 (6th Cir. 2004) (quoting Anderson, 477 U.S. at 251-52).
Under Ohio law, "[d]efamation is a false publication that injures a person's reputation, exposes him to public hatred, contempt, ridicule, shame or disgrace; or affects him adversely in his trade or business." Sweitzer v. Outlet Commc'ns., Inc., 133 Ohio App. 3d 102, 108, 726 N.E.2d 1084, 1088 (Ohio Ct. App. 1999) (citing Matalka v. Lagemann, 21 Ohio App. 3d 134, 136, 486 N.E.2d 1220, 1222 (Ohio Ct. App. 1985)). Usher asserts that it did not defame Black and that it is entitled to summary judgment because Black's defamation claim is barred by 49 C.F.R. §391.23, Ohio Revised Code § 4113.71, the doctrine of qualified privilege, and a purported waiver of liability signed by Black.
The Court first focuses on Ohio Revised Code § 4113.71, which provides:
(B) An employer who is requested by an employee or a prospective employer of an employee to disclose to a prospective employer of that employee information pertaining to the job performance of that employee for the employer and who discloses the requested information to the prospective employer is not liable in damages in a civil action to that employee, the prospective employer, or any other person for any harm sustained as a proximate result of making the disclosure or of any information disclosed, unless the plaintiff in a civil action establishes, either or both of the following:
(1) By a preponderance of the evidence that the employer disclosed particular information with the knowledge that it was false, with the deliberate intent to mislead the prospective employer or another person, in bad faith, or with malicious purpose;
Usher argues that Ohio Revised Code § 4113.71(B) bars Black's defamation claim against Usher because "[t]he mere existence of the Form, without more . . . does not provide any evidence of the level of intent or mental state of Missy Powers, Michael Baker, or anyone else at Usher." (ECF No. 47, at 13.) Black, however, asserts that Ohio Revised Code §4113.71 is inapplicable and that he only needs to prove that Usher "possibly knew" the information was wrong or that the information submitted to Landstar was "arguably" made with reckless disregard as to its truth. (ECF No. 50, at 14.) To support his position, Black contends that Baker's failure to produce documentation of Black's alleged arrest and failure to produce the identification of his sources from his investigation implies that Baker falsely indicated that Black was arrested. (Id., at 13.) Furthermore, Black asserts the statute is inapplicable because Powers blatantly disregarded information in Black's personnel file when she was filling out the Form. (Id., at 13.)
The Court finds that Ohio Revised Code § 4113.71(B) applies and is dispositive of Black's state law claim. Black has failed to produce evidence that could prove Usher disclosed particular information to Landstar "with the knowledge that it was false, with the deliberate intent to mislead the prospective employer or another person, in bad faith, or with malicious purpose." Ohio Rev. Code § 4113.71(B)(1). As a result of the application of Ohio Revised Code § 4113.71(B)(1), this Court need not reach the other defenses presented by Usher.
The parties dispute whether three statements on the Form were false. First, Powers's indication that Black had tested positive for a controlled substance within the last three years was clearly false because Black's personnel file contained an "inconclusive" test result, not a "positive" test result. (ECF No. 50, at Ex. C.) Second, Black contends that he was not arrested and submitted as evidence an arrest document, "Black's Franklin County Arrest Record," which does not indicate that he was arrested during the time period he was employed by Usher. (ECF No. 50, at Ex. B.) Usher submitted Baker's deposition testimony to support its contention that Black was arrested during his Usher employment. Baker testified that he received a telephone call informing him that Black's truck was stranded at a Marathon truck stop because Black was arrested at Marathon for pulling a knife on another driver at a nearby Pilot truck stop. (ECF No. 46, at 10:20-11:6.) Baker asserts that he investigated the incident by contacting a Pilot employee and the other driver involved, which both confirmed that an altercation involving Black had occurred. (ECF No. 46, at 11:7-13:1.) After receiving information from three sources confirming Black had been arrested that day, Baker reported the incident in Black's personnel file. (ECF No. 47, at 11.) Third, Baker testified that his investigation revealed that Black had an unauthorized passenger in his truck. (ECF No. 46, at 19:25-20:8.) Black denies Usher's assertion that he had an unauthorized passenger in his truck and contends that the assertion is false. (ECF No. 30, at 96:8-15.)
With regard to the drug test, it is undisputed that Powers reported false information. Powers admitted that the indication about a positive drug test within the last three years was a "mistake on her part." (ECF No. 49, at 9:15-22.) With regard to the arrest and the unauthorized passenger, it is unclear whether the information was accurate. The question before the Court, however, is whether Usher knew it was reporting false information to Landstar and not whether the information was actually false. Thus, even if Usher did submit false information about Black to Landstar, Black must present evidence of a factual dispute...
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