Andre Pope v. ESA Services, Inc. ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 04-1848
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Andre Pope, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
ESA Services, Inc., *
*
Appellee. *
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Submitted: December 17, 2004
Filed: May 10, 2005
________________
Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Andre Pope (“Pope”) appeals the decision of the district court1 granting
summary judgment to ESA Services, Inc. (“ESA”), on his claims of employment
discrimination based on race, retaliation, violation of the Minnesota Whistleblower
1
The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
Act, and defamation. On appeal, Pope contends that there was sufficient material
evidence on each claim such that a reasonable jury could find in his favor. We affirm
the district court’s summary judgment in favor of ESA on all claims.
I. BACKGROUND
On summary judgment “[t]he burden of demonstrating that there are no genuine
issues of material fact rests on the moving party.” Winthrop Resources Corp. v.
Eaton Hydraulics, Inc., 361 F.3d 465, 468 (8th Cir. 2004). The non-moving party,
however, must still “present[] evidence sufficiently supporting the disputed material
facts that a reasonable jury could return a verdict in [his] favor.” Gregory v. City of
Rogers, Ark., 974 F.2d 1006, 1010 (8th Cir. 1992). Because Pope is the non-moving
party, “we must view the evidence and the inferences that may be reasonably drawn
from the evidence in the light most favorable” to him. Winthrop Resources, 361 F.3d
at 468.
Andre Pope is a black male of Liberian descent. In January 2001, Pope began
working as a general manager in training for ESA, a nationwide chain of hotels.
Shortly thereafter, he became general manager of ESA’s Bloomington, Minnesota
hotel. Pope initially performed his duties in a satisfactory manner.
Early in his tenure as general manager of the Bloomington hotel, Pope claims
to have discovered that ESA had hired several illegal aliens based on falsified
documents, which he reported to his district managers, Trevor Dulka and later, John
Hulet.
In the summer of 2001, Pope attended a regional meeting in Chicago. Pope
formed the impression that his regional manager, Gary Rumsey, ignored him and
some other black managers. He alleges that Rumsey took several white managers to
lunch and did not include Pope and two other black managers from his region.
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Around the same time as the Chicago conference, ESA began soliciting
applications for a district-manager-in-training position in the Bloomington area. Pope
initially sought the advice of Dulka, his district manager, who told him that he should
have one year of experience as a general manager before being promoted to managing
multiple hotels. Pope inquired of both Susan Rebi in ESA’s Chicago office and
Rumsey about the position, prefacing his inquiries with the observation that there
were no black district managers in the region. Rumsey told Pope that he would talk
to Dulka to get a recommendation about whether Pope was ready for a promotion.
Rumsey talked to Dulka about the possibility of promoting Pope to the position
of district manager in training. Dulka advised Rumsey that he did not think Pope was
ready to manage multiple hotels. In August 2001, Rumsey hired John Hulet, a white
male who previously was an area manager for a grocery-store chain, for the district-
manager-in-training position. Rumsey hired Hulet because he felt he had the right
qualifications for the position; in particular, Hulet had experience managing multiple
grocery store locations, which Rumsey considered very important.
During a December inspection of the Bloomington hotel, Rumsey found the
state of the rooms unacceptable. He gave the property a failing score and gave Pope
a midrange rating of “Effective.” Hulet met with Pope and explained the problems
he and Rumsey found with the hotel. In a follow-up inspection, Hulet noted
improvements but still found the rooms unacceptable.
Shortly after Hulet’s inspection, Pope requested and was allowed to take off
the week of December 29, 2001 through January 4, 2002. Hulet saw this as an
opportunity to work with Phil Current, assistant manager of the Bloomington hotel,
who recently had done poorly on an assistant-manager test. It was immediately
apparent to Hulet, however, that Current’s poor performance on the assistant-manager
test was due in large part to Pope’s inadequate training of Current. As Hulet began
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to provide Current with training, Hulet found that the Bloomington hotel was still in
poor condition. For example, Hulet found poor filing, incomplete employee files,
incomplete petty-cash receipts and expired gift certificates which Pope failed to give
his employees as a gift from ESA. Hulet also discovered that Benedict Brown, a
front-desk representative at the Bloomington hotel, was due to earn overtime pay if
he were to complete his scheduled nine-hour shift on January 4. Finally, Hulet
discovered a shortage of $18.18 in the petty cash and $246.00 from the back-up
drawer. In fact, on December 31, 2001, Hulet drafted an ESA Counseling Report,
where he wrote, “I discovered funds missing from the petty cash fund and the second
drawer fund, during an audit at site #733.” The draft Counseling Report indicates
that the action to be taken was termination. However, no action was taken at that
time to effect Pope’s termination. Rather, the record reflects that Hulet chose to
further investigate the situation.
In a January 3, 2002, telephone conversation with Current, Pope claimed that
he had taken the money from the back-up drawer to buy office supplies. Pope also
told Current that he would “fix” the problem of paying overtime to Brown and replace
him at 7:00 p.m. the next day. Hulet asked to speak to Pope, but Pope refused. After
the conversation was recounted to Hulet, he construed Pope’s statement as meaning
that Brown would continue to work until 11:00 p.m. with the time worked after 7:00
p.m. to be added to a subsequent pay period, thereby improperly avoiding a claim by
Brown to overtime pay.
Hulet immediately reported his findings to Rumsey and ESA’s human
resources department. Hulet testified that he talked to Rumsey “about the fact that
we are missing money in petty-cash, that we are missing money in the second drawer,
that our cash overages and shortages aren’t being documented, that the AGM . . .
hadn’t been trained. He didn’t even know what was going on at the property.” An
ESA Communication Summary opened by Kristin Long on January 4, 2002 stated:
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DM, John Hulet, called regarding termination of GM, Andre Pope. . . .
[Hulet] conducted an audit of monies on property and found $260
(approx.) missing consistently from petty-cash. AGM [Phil Current]
stated that [Pope] loaned previous [assistant general manager] $200 for
moving costs when leaving Company. [Pope] has not completed a cash
over/short form in six months. In addition, [Current] called [Pope] to
alert him to the fact that an employee, if worked scheduled 9 hour shift,
would be eligible for overtime. [Pope] advised [Current] to stop the
employee’s payroll at 40 hours and record the extra time on the next pay
period. Advised [Hulet] to confront [Pope] with findings. [Hulet] to
then terminate for misconduct. Support decision.
On January 7, 2002, Hulet and Dulka called Pope into a meeting in the hotel’s
front office in order to confront Pope regarding Current’s lack of training, the cash
shortages and the alleged timecard fraud. Pope claims that other hotel employees
were able to overhear the ensuing discussions.
In response to the petty-cash issue, Pope provided a partial accounting of the
money by producing purchased office supplies, receipts for those office supplies, and
the remaining cash.2 Hulet was concerned about Pope’s explanation, in part, because
Pope claimed to have purchased office supplies on January 3, but the receipt was
dated January 5.
The meeting was adjourned for a short time so that Hulet and Dulka could meet
privately. When the meeting resumed, Pope was questioned about the alleged
timecard fraud and a six-minute discrepancy on Brown’s January 4 timecard. As to
the alleged timecard fraud, Pope claimed that he relieved Brown at 7:00 p.m. the
night before. Hulet and Dulka were not convinced by Pope’s explanation; instead,
they relied on the fact that Brown had not logged out of the computer system until
2
The receipts were for the following: $3.50 from Cub for a 9-volt battery dated
December 31, 2001; $18.00 for lunch from Don Pablos dated January 2, 2002; and
$57.66 from Office Max for various office supplies dated January 5, 2002.
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11:00 p.m. and that Brown’s name was on the top of the cashier’s report envelope that
had been started at the beginning of his shift and submitted at the end of the day. In
response to Hulet’s inquiry about the six-minute discrepancy on Brown’s timecard,
Pope responded, “Who cares.”
At this point, Hulet decided to terminate Pope’s employment with ESA. The
decision was based on the accumulation of issues Hulet had discovered: Pope’s poor
management as reflected in the earlier hotel inspection by Rumsey and Pope’s failure
to train Current; the undocumented shortage in the petty cash and in the back-up
drawer; and the alleged timecard fraud involving Brown. Pope’s dismissive attitude
and failure to adequately explain the discrepancies resulted in Hulet’s decision to
terminate Pope’s employment with ESA.
In July 2002, Pope filed a complaint alleging race discrimination in violation
of Title VII of the Civil Rights Act of 1964 and the Minnesota Human Rights Act
(“MHRA”), violation of the Minnesota Whistleblower Act, and defamation. ESA
moved for summary judgment. In opposing ESA’s motion for summary judgment,
Pope asserted that his complaint also included claims of retaliation under Title VII
and the MHRA. In its decision on the summary-judgment motion, the district court
noted that although the retaliation claims were not properly pled, it would consider
them. The district court concluded that Pope failed to demonstrate a disputed
material fact and that ESA was entitled to judgment as a matter of law on all claims.
Pope filed a timely notice of appeal.
II. DISCUSSION
We review the district court’s order of summary judgment de novo. Randolph
v. Rodgers, 170 F.3d 850, 856 (8th Cir. 1999). “Summary judgment is appropriate
only when there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Id.; see Fed. R. Civ. P. 56(c). We have
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noted that summary judgment “should seldom be utilized” in employment
discrimination cases. Stidham v. Minnesota Mining & Mfg., Inc., 399 F.3d 935, 937
(8th Cir. 2005). However, this Court also has noted that “there is no ‘discrimination
case exception’ to the application of Fed. R. Civ. P. 56, and it remains a useful
pretrial tool to determine whether or not any case, including one alleging
discrimination, merits a trial.” Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir.
1999). After viewing the evidence in the light most favorable to Pope, we conclude
that no reasonable jury could find in his favor. Therefore, we affirm the district court.
A. Employment Discrimination
Where the plaintiff is unable to produce direct evidence of discrimination in
violation of Title VII or the MHRA, the Court will employ the familiar McDonnell
Douglas burden-shifting framework. Turner v. Honeywell Fed. Mfg. & Techs., LLC,
336 F.3d 716, 720 (8th Cir. 2003) (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792, 801-04 (1973)). Under the McDonnell Douglas framework, a presumption
of discrimination is created when the plaintiff meets his burden of establishing a
prima facie case of employment discrimination. Rothmeier v. Inv. Advisers, Inc., 85
F.3d 1328, 1332 (8th Cir. 1996) (citing Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 254 (1981)). A minimal evidentiary showing will satisfy this
burden of production. Turner, 336 F.3d at 720 (citing Johnson v. Arkansas State
Police, 10 F.3d 547, 551 (8th Cir. 1993)). Upon establishing a prima facie case of
discrimination, the burden of production shifts to the defendant to show that it had
a legitimate, nondiscriminatory reason for its actions. Sprenger v. Fed. Home Loan
Bank of Des Moines, 253 F.3d 1106, 1111 (8th Cir. 2001) (citing St. Mary’s Honor
Center v. Hicks, 509 U.S. 502, 507 (1993)). Once this burden has been met, the
presumption of discrimination disappears, requiring the plaintiff to prove that the
proffered justification is merely a pretext for discrimination. Id. At all times, the
burden of persuasion remains with the plaintiff. Gagnon v. Sprint Corp., 284 F.3d
839, 847 (8th Cir. 2002) (citing St. Mary’s, 509 U.S. at 507).
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1. Failure to promote in violation of Title VII and the MHRA
Pope first argues that the district court erred when it held that, with
respect to ESA’s decision not to promote him to the position of district manager in
training, Pope failed to present evidence of discrimination sufficient to create a
question for the jury. We conclude that the district court did not err. Although Pope
established a prima facie case of race discrimination in the context of failure to
promote, he has failed to present any material evidence calling into question ESA’s
proffered legitimate, nondiscriminatory reasons for not promoting him.
In order to establish a prima facie case of race discrimination in a failure-
to-promote case, the plaintiff must show that: (1) he is a member of a protected
group; (2) he was qualified and applied for a promotion to an available position; (3)
he was rejected; and (4) a similarly-situated candidate, not part of the protected group,
was hired for the position instead. Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th
Cir. 1996). Pope has established a prima facie case. It is uncontroverted that Pope
is black, that he applied for and was denied the position of district-manager-in-
training, and that ESA hired Hulet, a similarly-situated white applicant. Further, Pope
met the minimum qualifications for the position. See Turner, 336 F.3d at 720-21.
With the burden of production having shifted to ESA, it proffered two
reasons for the decision to hire Hulet instead of promoting Pope. First, relying on the
advice of Dulka, Rumsey concluded that Pope had not shown superior performance
as a general manager and that Pope was not ready to manage multiple hotels. Second,
Rumsey hired Hulet because he thought Hulet had the right qualifications for the
position; most importantly, he had experience managing multiple grocery store
locations. “The burden to articulate a nondiscriminatory justification is not onerous,
and the explanation need not be demonstrated by a preponderance of the evidence.”
Floyd v. State of Missouri Dept. of Soc. Servs., Div. of Family Servs., 188 F.3d 932,
936 (8th Cir. 1999). Accordingly, the ultimate burden falls on Pope to produce
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evidence sufficient to create a genuine issue of material fact regarding whether ESA’s
proffered nondiscriminatory justifications are mere pretext for intentional
discrimination.
In his brief, Pope argues that ESA’s proffered justifications are mere
pretext because of “the fact that Rumsey treated only white managers to lunch and
refused to socialize with any black managers.” This simply does not cast doubt on
ESA’s proffered nondiscriminatory justifications for hiring Hulet instead of
promoting Pope. First, the statement that Rumsey “refused to socialize with any
black managers,” is not supported by any evidence in the record. Second, Pope puts
forth no evidence that Rumsey “treated” white managers to lunch at the Chicago
conference. That Rumsey went out to lunch with other white managers at the
conference is not sufficient to raise a material issue of disputed fact about whether the
true reason behind Rumsey’s decision not to promote Pope was racial discrimination.
Finally, the record reflects that Rumsey’s decision not to promote Pope was
influenced primarily by Dulka’s recommendation that Pope was not ready for a
promotion. Pope has provided no evidence showing that the true reason behind
Dulka’s recommendation was racial discrimination.
2. Termination in violation of Title VII and the MHRA
“[T]he proof necessary to establish a prima facie case in discrimination
cases is ‘not inflexible’ and ‘varies somewhat with the specific facts of each case.’”
Young v. Warner-Jenkinson Co., Inc., 152 F.3d 1018, 1022 (8th Cir. 1998) (quoting
Hindman v. Transkrit Corp., 145 F.3d 986, 990-91 (8th Cir. 1998)). In order to
establish a prima facie case of discrimination on the part of ESA in terminating Pope,
Pope must show that: (1) he is a member of a protected group; (2) he was qualified
for his position; (3) he was discharged; and (4) the discharge occurred under
circumstances giving rise to an inference of discrimination. See Davenport v.
Riverview Gardens Sch. Dist., 30 F.3d 940, 944-45 (8th Cir. 1994). A plaintiff can
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prove the fourth element by showing that he was replaced by someone with similar
qualifications. See Putman v. Unity Health Sys., 348 F.3d 732, 736 (8th Cir. 2003).
The burden of establishing a prima facie case of employment
discrimination is not onerous. Davenport, 30 F.3d at 944. Pope has made the
requisite showing of a prima facie case of employment discrimination. It is
undisputed that Pope is a member of a protected group and that he was terminated.
Further, Pope was qualified for his position and was discharged under circumstances
giving rise to an inference of discrimination because ESA filled his position with
someone having Pope’s qualifications.
ESA points to the alleged timecard fraud, the shortages in the petty cash
and the back-up drawer, and the poor performance by Pope as legitimate,
nondiscriminatory justifications for his termination. Pope attempts to prove that
ESA’s proffered justifications are pretextual in two ways.
First, buttressed by Brown’s deposition testimony, Pope argues that he
did, in fact, relieve Brown on January 4, 2002. He claims that he simply failed to log
in to the computer under his own password and, instead, remained logged in under
Brown’s password. Pope contends that the alleged timecard fraud ultimately was
disproved and that, as a result, ESA’s reliance on it as a justification for his
termination constitutes pretext.
The issue before the Court, however, is not whether ESA’s conclusions
about the alleged timecard fraud were correct; instead, the issue is whether ESA
conducted a thorough investigation of the timecard-fraud incident and whether it
made credibility determinations reasonably and in good faith. See Euerle-Wehle v.
United Parcel Serv., 181 F.3d 898, 900 (8th Cir. 1999). We conclude ESA did so.
Hulet considered Pope’s explanation but found it incredible in light of what Current
told him about Pope “fixing” Brown’s overtime pay, the fact that Brown continued
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to be logged in to the computer beyond the time that Pope claimed he relieved Brown,
and the fact that Brown’s name, not Pope’s, appeared on the cashier’s report envelope
submitted at the end of the day. Based on the combination of the apparent timecard
fraud, Pope’s dismissive attitude toward Brown’s missing six minutes, shortages in
the petty cash and the back-up drawer, the inadequate training of hotel personnel, and
the problems revealed in the December inspection of the Bloomington hotel, Hulet
decided that the best course of action was termination. The alleged timecard fraud
became the proverbial “straw that broke the camel’s back.” See Dhyne v. Meiners
Thriftway, Inc., 184 F.3d 983, 989 (8th Cir. 1999). Pope has produced no evidence
showing Hulet did not believe Pope was guilty of misconduct. See Griffith v. City of
Des Moines, 387 F.3d 733, 738 (8th Cir. 2004); see also Waggoner v. City of
Garland, Tex., 987 F.2d 1160, 1166 (5th Cir. 1993) (“To the extent [plaintiff’s]
summary judgment evidence relates to his innocence of the sexual harassment charge,
it is irrelevant. He must, instead, produce evidence demonstrating that [his employer]
did not in good faith believe the allegations, but relied on them in a bad faith pretext
to discriminate against him . . . .”).
Pope also attempts to prove that ESA’s proffered justification with
respect to the petty-cash issue was a pretext by pointing to alleged disparate treatment
of white ESA managers charged with similar shortages. In one incident, a white
female general manager was fired for taking petty cash for non-business purposes
after being given three written and one or two verbal warnings for performance
issues. In another incident, a white male general manager was issued a written
warning for taking $360 from the safe and cash drawer for non-business use.
A plaintiff may demonstrate pretext by showing that he was treated less
favorably than similarly-situated employees outside of his protected group. E.E.O.C.
v. Kohler Co., 335 F.3d 766, 775-76 (8th Cir. 2003). The test for determining
whether employees are similarly situated to a plaintiff is a rigorous one. Id. at 775.
“For discriminatory discipline claims, employees are similarly situated only when
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they are involved in or accused of the same offense and are disciplined in different
ways.” Wheeler v. Aventis Pharms., 360 F.3d 853, 858 (8th Cir. 2004). Further, the
plaintiff must show that he and those employees outside of his protected group were
similarly situated in all relevant respects. Id.
Pope has failed to raise a triable question of material fact with respect
to the issue of disparate treatment. He is not similarly situated to the white male
general manager. That employee did not have Pope’s history of mismanagement and
was not accused of timecard fraud. In addition, Pope was actually treated in the same
manner as the white female general manager. Both had prior performance issues, and
both were terminated after a petty-cash discrepancy was found.
Accordingly, we conclude that Pope has failed to raise a triable question
of material fact as to whether ESA’s proffered justifications for not promoting him
and for terminating him were pretextual. We therefore affirm the district court’s
summary judgment in favor of ESA as to Pope’s race discrimination claims.
B. Retaliation
The district court addressed Pope’s retaliation claims under Title VII and the
MHRA, even though it concluded that such claims were not properly pled. Like the
district court, we will assume that Pope properly pled such claims, and we will
address them. However, we conclude that Pope has failed to make a prima facie
showing of retaliation.
To establish a prima facie case of retaliation, Pope must show that he engaged
in statutorily protected activity, that ESA took adverse action against him and that
there is a causal connection between the two. Rheineck v. Hutchinson Tech., Inc., 261
F.3d 751, 757 (8th Cir. 2001). Statutorily protected activity includes opposing an
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act of discrimination made unlawful by Title VII. Hunt v. Nebraska Public Power
Dist., 282 F.3d 1021, 1028 (8th Cir. 2002).
Pope has failed to provide sufficient evidence showing that he engaged in
statutorily protected activity. In his brief, Pope argues that he was terminated for
“complaining to management that there was a glaring absence of black managers
above the position of GM at ESA.” This is an overstatement of Pope’s own
deposition testimony. A more accurate version of the record shows that Pope, as a
preface to expressing his interest in the district-manager-in-training position, shared
his observation that there were no blacks in the district-manager position in his
region. He commented that having black district managers would serve as an
incentive for him. These comments are insufficient to show that Pope opposed an
unlawful employment practice by ESA; Pope did not attribute the absence of black
district managers in his region to racial discrimination. See id. Thus, Pope was not
engaged in statutorily protected activity and did not establish a prima facie case of
retaliation.
C. Minnesota Whistleblower Act
The Minnesota Whistleblower Act, Minn. Stat. § 181.932, prohibits retaliation
against an employee who, in good faith, reports a violation or suspected violation of
any federal or state law to an employer, governmental body or law enforcement
official. See Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn. Ct. App. 2001).
Pope claims ESA violated the Whistleblower Act by terminating him for complaining
to Dulka and Hulet regarding the hiring of undocumented workers. Like Pope’s other
claims, this claim is analyzed under the McDonnell Douglas framework: Pope has
the initial burden of establishing a prima facie case, the burden then shifts to ESA to
articulate a non-retaliatory reason for Pope’s termination, after which Pope may show
ESA’s proffered reason is a pretext for discrimination. See id. Pope has failed to
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satisfy his initial burden of establishing a prima facie case of retaliation under the
Whistleblower Act.
The elements of the prima facie case of retaliation under the Minnesota
Whistleblower Act are: “(1) statutorily-protected conduct by the employee; (2)
adverse employment action by the employer; and (3) a causal connection between the
two.” Id. (quoting Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn.
1983) (internal quotations omitted)). An employee may prove causation with
“circumstantial evidence that justifies an inference of retaliatory motive.” Cokley,
623 N.W.2d at 632. However, close proximity between an employee’s complaint and
his termination of employment, without any other circumstantial evidence, fails to
raise an issue of material fact regarding causation. See id. at 633; Thompson v.
Campbell, 845 F. Supp. 665, 675 (D. Minn. 1994) (“[A]n inference of retaliatory
motive is not justified by virtue of the timing of [the employee’s] discharge alone.”).
The only evidence Pope offers to prove causation is the temporal proximity
between his complaint and termination. In his brief, Pope claims that he discussed
the issue of hiring undocumented workers with Hulet as late as November 2001, just
one month before he was terminated. However, there is no support for this date in
the record. Rather, in his deposition, Pope stated that he and Hulet discussed the
issue when Hulet “got hired,” which would have been sometime in August 2001. The
simple fact that Pope discussed the issue with Hulet approximately four months
before he was terminated, without any other circumstantial evidence (such as
evidence that Pope was criticized for raising the issue), does not constitute sufficient
evidence of causation to support Pope’s whistleblower claim.
D. Defamation
In his complaint, Pope claims that ESA defamed him by telling Pope’s co-
workers that he was terminated for timecard fraud and by forcing him to tell potential
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employers that he was terminated for timecard fraud. He also alleges that Dulka and
Hulet questioned him about missing money and receipts. Pope clarified this
allegation in his deposition–he claimed that Hulet stated “we believe you took
money” in the presence of others. The district court dismissed Pope’s defamation
claim involving timecard-fraud statements to Pope’s co-workers because the claims
were not pled with specificity. The district court granted summary judgment to ESA
on the remaining defamation claims because they were literally true and because ESA
and its agents enjoyed qualified privilege.
The inadequacy of Pope’s complaint compels us to dismiss all of his
defamation claims, except the forced self-publication claim. Minnesota law requires
that “a claim for defamation must be pled with a certain degree of specificity.”
Schibursky v. Int’l Business Machines Co., 820 F. Supp. 1169, 1181 (D. Minn. 1993).
At a minimum, the plaintiff must “allege who made the allegedly libelous statements,
to whom they were made, and where.” Id. (quoting Pinto v. Internationale Set, Inc.,
650 F. Supp. 306, 309 (D. Minn.1986) (internal quotations omitted)). Pope’s
complaint does none of this. Instead, it generally alleges that “[ESA’s] agents stated
to Plaintiff’s co-workers that he was discharged for ‘timecard fraud.’” In addition, the
complaint contains no specific facts relating to Pope’s claim that Hulet defamed him.
Consequently, the proper course is dismissal of these claims. See Fed. R. Civ. P.
12(b)(6).
We are left with the claim that Pope was forced to self-publish the defamatory
timecard-fraud statement to potential employers. In order to prevail on a claim of
defamation in Minnesota, a plaintiff must show that the defendant “made: (a) a false
and defamatory statement about the plaintiff; (b) in unprivileged publication to a third
party; (c) that harmed the plaintiff’s reputation in the community.” Weinberger v.
Maplewood Review, 668 N.W.2d 667, 673 (Minn. 2003). “Generally, there is no
publication where a defendant communicates a statement directly to a plaintiff who
then communicates it to a third person.” Lewis v. Equitable Life Assurance Soc’y,
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389 N.W.2d 876, 886 (Minn. 1986). However, the publication element may be met
where the plaintiff is compelled to publish the defamatory statement to a third party,
and it was foreseeable to the defendant that the plaintiff would be so compelled. Id.
at 888. We conclude that summary judgment on the forced self-publication
defamation claim is appropriate because Pope has failed to produce sufficient
evidence to create a factual issue as to the publication element.
The state of the evidentiary record before us is similar to that before the
Minnesota Supreme Court in Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406
(Minn. 1994). In Rouse, the Minnesota Supreme Court held that the plaintiff failed
to put forward sufficient evidence to create a factual dispute as to whether he was
compelled to publish his employer’s allegedly defamatory statement in subsequent
interviews for employment. The court explained:
The only evidence [the plaintiff] has provided is his own deposition
testimony, during which he submitted a list of thirteen companies where
he interviewed. [The plaintiff] remembered some details about the
interviews, such as roughly where the companies’ offices were located
and, in a few cases, whether he interviewed with a man or a woman.
However, he could not provide names of interviewers nor provide any
documentary evidence of having filled out applications, sent resumes or
received rejections.
Id. at 411. In this case, Pope has provided even less evidence, making only vague
references to a handful of job opportunities that were allegedly lost due to his forced
publication of the allegedly defamatory statement regarding timecard fraud.
Consequently, we hold that summary judgment is appropriate on this claim because
Pope has failed to present sufficient evidence with respect to the publication element.
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III. CONCLUSION
For the foregoing reasons, we affirm the district court’s order granting
summary judgment in favor of ESA on all claims.
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