United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge
has brought a defamation action against defendant which is
before the court upon defendant's motion for summary
judgment. Defendant's motion (Doc. No. 70) devotes most
of its attention to seeking summary judgment against
plaintiff's defamation claim. But, defendant's motion
also asks for summary judgment in favor of defendant's
counterclaim which alleges retaliation by plaintiff against
defendant. For the reasons which follow, the motion shall be
Summary judgment standards
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). Such a showing may be made with citation
“to particular parts of materials in the record,
including depositions, documents, . . . affidavits or
declarations, stipulations . . ., admissions, interrogatory
answers, or other materials.” FED.R.CIV.P. 56(c)(1)(A).
The court views the evidence and all reasonable inferences
therefrom in the light most favorable to the nonmoving party.
Spaulding v. United Transp. Union, 279 F.3d 901, 904
(10thCir. 2002). An issue of fact is
“genuine” if “there is sufficient evidence
on each side so that a rational trier of fact could resolve
the issue either way.” Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998). The
court may not make credibility determinations when examining
the evidentiary record presented by the parties. Fogarty
v. Gallegos, 523 F.3d 1147, 1165-66 (10th
. . . the moving party does not have the ultimate burden of
persuasion at trial, it has both the initial burden of
production on a motion for summary judgment and the burden of
establishing that summary judgment is appropriate as a matter
of law.” Trainor v. Apollo Metal Specialties,
Inc., 318 F.3d 976, 979 (10th Cir.2002). “The
moving party may carry its initial burden either by producing
affirmative evidence negating an essential element of the
non-moving party's claim, or by showing that the
nonmoving party does not have enough evidence to carry its
burden of persuasion at trial.” Id. (citation
omitted). “Showing” or “pointing out”
an absence of evidence may be accomplished by reliance upon
depositions, answers to interrogatories and the like.
Celotex Corporation v. Catrett, 477 U.S. 317, 328
(1986)(White, J., concurring). But, “[i]t is not enough
to move for summary judgment without supporting the motion in
any way or with a conclusory assertion that the plaintiff has
no evidence to prove his case.” Id.; see also,
Coit v. Zavaras, 175 Fed.Appx. 226, 229 (10th Cir.
2006); Eaves v. Fireman's Fund Ins. Companies,
148 Fed.Appx. 696, 700 (10th Cir. 2005); Windon Third Oil
& Gas Drilling P'ship v. Fed. Deposit Ins.
Corp., 805 F.2d 342, 345 (10th Cir. 1986).
movant carries the initial burden of production, then the
nonmovant that bears the burden of persuasion at trial must
go beyond the pleadings and set forth specific facts that
would be admissible in evidence from which a rational trier
of fact could find for the nonmovant. Adler, 144
F.3d at 671. In this case, plaintiff has signed an affidavit
(Doc. No. 72-2) verifying the allegations in the first
amended complaint and offered an affidavit (Doc. No. 72-1)
from another witness. “Evidence is sufficient to
withstand summary judgment if it is significantly probative
and would enable a trier of fact to find in the
nonmovant's favor.” Adams v. American Guarantee
and Liability Ins. Co., 233 F.3d 1242, 1246
(10th Cir. 2000).
alleges that she is an administrative assistant employed at
Emporia State University (“ESU”). Doc. No. 58,
¶ 5. Plaintiff claims that she was defamed by defendant
when he communicated to the public that plaintiff was the
probable author of a racial slur that was found written on a
student's notepad in an office at ESU. Doc. No. 72, pp.
5-6. The first amended complaint alleges that defendant and
his wife Angelica: “sent one or more press releases to
National Public Radio;” and “created a website
named March on Emporia . . . along with Facebook and Twitter
pages that continued to accuse [plaintiff] as the most
probable person to have written the racial slur in the
notebook.” Doc. No. 58, ¶¶ 8 and 9. Neither
the press releases nor the website or social media pages have
been presented to the court as part of the summary judgment
record. III. Defamation standards The parties agree
that Kansas law applies here. In Kansas, a valid defamation
claim requires proof that: (1) the defendant wrote false and
defamatory statements; (2) the defendant communicated these
statements to a third party; and (3) the plaintiff's
reputation was injured by the statements. El-Ghori v.
Grimes, 23 F.Supp.2d 1259, 1269 (D.Kan. 1998); see also
In re Rockhill Pain Specialists, P.A., 412 P.3d
1008, 1024 (Kan.App. 2017)(quoting Hall v. Kansas Farm
Bureau, 50 P.3d 495 (2002)). “'[D]amage to
one's reputation is the essence and gravamen of an action
for defamation.'” In re Rockhill Pain
Specialists, 412 P.3d at 1024 (quoting Gobin v.
Globe Publishing Co., 649 P.2d 1239 (1982)).
“Proof of such damages typically entails showing that
persons were deterred from associating with the plaintiff,
that the plaintiff's reputation had been lowered in the
community, or that the plaintiff's profession
suffered.” Ali v. Douglas Cable
Communications, 929 F.Supp. 1362, 1385 (D. Kan. 1996).
“Damage to reputation can be inferred from the evidence
so long as the inference is reasonable.” Sunlight
Saunas, Inc. v. Sundance Sauna, Inc., 427 F.Supp.2d
1032, 1072 (D. Kan. 2006) (citing Moran v. State,
267 Kan. 583, 590, 985 P.2d 127');">985 P.2d 127 ). Additionally,
“[a] victim's own observations may be suitable as
proof of harm to his reputation for defamation cases in
Kansas ... but they must raise a reasonable inference that
the damage was caused by the plaintiff's statements.
[Citation omitted.]” Debord v. Mercy Health System
of Kansas, Inc., 860 F.Supp.2d 1263, 1283 (D. Kan.
2012). However, “[b]road and factually unsupported
allegations ... do not support a claim for damages for
alleged defamation.” Davis v. Hildyard, 34
Kan.App. 2d 22, 30, 113 P.3d 827 (2005).
Analysis of defendant's arguments for summary
judgment against plaintiff's defamation claim.
motion makes numerous arguments. Defendant's first
argument is that plaintiff “refers to statements that
are true involving a matter of public concern.” Doc.
No. 71, p. 13. The court will address the “truth”
argument in this part of the order and address any
constitutional privilege claim later in the order. The
summary judgment record before the court is not comprehensive
and does not preclude a genuine issue as to the truth of the
statement that plaintiff was the probable author of the
racial slur. Defendant supports his position with evidence of
a statement by a handwriting analyst, Wendy Carlson.
Plaintiff has sworn that she did not write the racial slur or
have any involvement in it. Doc. No. 58, ¶ 16. And the
handwriting analyst has stated that she was not given
sufficient information to provide a conclusive expert
opinion. Doc. No. 72-1, ¶ 4. The court concludes that
plaintiff has presented sufficient material to demonstrate a
genuine issue of fact as to the truth or falsity of
defendant's alleged defamatory statements.
second argument is that plaintiff “fails to state with
any specificity what [defendant] said or published that was
false.” Doc. No. 71, p. 13. The first amended complaint
(Doc. No. 58, pp. 2-3), the final pretrial order (Doc. No.
68, pp. 6-9) and plaintiff's response to the summary
judgment motion (Doc. No. 72, pp. 4-6) are documents where
plaintiff states she was defamed by statements that she was
the probable author of a racial slur found on a notepad at ES
U.She further indicates that “the Hales”
(defendant and his wife) made the statements on a website and
in social media. Plaintiff also states that defendant and his
wife “sent one or more press releases to National
Public Radio.” Doc. No. 68, p. 7. It is not clear to
the court whether plaintiff is alleging that the defamatory
statement was made in the press releases. But, that does not
appear to be the issue defendant is raising. Upon review, the
court concludes that although plaintiff could have been more
specific, sufficient information has been provided to give
defendant fair notice of plaintiff's claim. Therefore,
the court rejects defendant's second argument for summary
third argument is that plaintiff has offered “no proof
or evidence to support her claim.” Doc. No. 71, p. 13.
This argument is repeated more frequently and vigorously in
defendant's reply brief where defendant makes additional
factual assertions (often without citation to the record)
denying relevant facts. Contrary to defendant's argument,
plaintiff has sworn to the facts alleged in the complaint.
This qualifies as an offer of proof for the purposes of a
summary judgment motion. See Green v. Branson, 108
F.3d 1296, 1302 (10th Cir. 1997); Long v.
Morris, 485 F.Supp.2d 1247, 1249 (D.Kan. 2007).
Plaintiff has also provided an affidavit from the handwriting
analyst. As stated in section I of this order, defendant does
not satisfy his initial burden of production by merely
asserting that plaintiff has no ...