Emilio Martino v. Western & Southern Financial G ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1855
E MILIO M ARTINO,
Plaintiff-Appellant,
v.
W ESTERN & S OUTHERN F INANCIAL G ROUP,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 3:08-CV-308—Theresa L. Springmann, Judge.
A RGUED O CTOBER 1, 2012—D ECIDED A PRIL 25, 2013
Before P OSNER, W ILLIAMS, and S YKES, Circuit Judges.
W ILLIAMS, Circuit Judge. Emilio Martino, a naturalized
United States citizen born in Italy, worked briefly as a
sales representative for Western & Southern Financial
Group (“W&S”). Less than two months after W&S
hired Martino, the company terminated his employment.
Martino sued W&S for religious discrimination under
Title VII and for defamation. Martino alleged, among
other claims, that W&S discharged him based on his
2 No. 12-1855
religious beliefs. W&S countered that Martino’s termina-
tion was due to his failure to provide documents
verifying his eligibility for employment in the United
States. The district court granted summary judgment to
W&S, and we affirm. Martino’s evidence neither calls
into doubt W&S’s explanation for his discharge nor
establishes a prima facie case of defamation.
I. BACKGROUND
On September 4, 2006, W&S, a financial services com-
pany headquartered in Cincinnati, hired Martino to
work as a sales representative in its Mishawaka, Indiana
office (the “Michiana office”). Shortly after Martino
began working for W&S, he signed a sales representa-
tive agreement that prohibited him from “engag[ing] in
any other business, profession or work for remuneration
or profit without Western-Southern’s prior written con-
sent.” At the time of Martino’s employment, W&S
only approved outside positions requiring five or fewer
hours a week on average, not including Sundays, and an
average weekly pay of one hundred dollars or less. To
maintain their employment with W&S, associates who
were not in compliance with the company’s policy
either resigned their unapproved outside positions or
reduced the hours and pay of their outside work.
At the time he began working for W&S, Martino also
served as a pastor of a small church in Union, Michigan.
The same month his employment with W&S began,
Martino submitted an outside position form for his pasto-
ral job to the field human resource department, which
No. 12-1855 3
decided whether to approve outside positions at a
weekly meeting. Erin Miller, a human resources gen-
eralist, conducted the initial reviews of outside posi-
tion forms and presented the position to the rest of
the department without identifying the employee re-
questing permission to hold the outside position.
Because Martino did not specify his hours or pay on his
form, Miller sent him an email requesting that informa-
tion on September 18. She followed up with another
email request on September 26 and that day, Martino
informed Miller that his pastoral position involved
eight to ten hours per week, not including Sundays, his
average weekly pay was about three hundred dollars,
and his pay might decrease in the future. The following
day, Miller notified Martino that his pastoral position
did not comply with the company’s policy and that he
would need to immediately terminate that position.
An email exchange between Andrew Sobol, who was
the Michiana office’s district sales manager and Martino’s
supervisor, and Miller ensued. Sobol told Miller that
the outside position was the type of community service
to which he encouraged sales representatives to dedicate
three to five hours per week. Sobol asked Miller to
clarify whether W&S forbade community service. Miller
responded that Martino’s position was different from
approved community service activities because of the
hours and pay. Sobol then told Miller that he believed
Martino would do the pastoral work for free to keep
the sales representative job. Sobol also suggested that
Martino had inflated his estimate of the number of
hours required for the outside position. On September 29,
4 No. 12-1855
Miller informed Sobol that Martino’s request to hold
the outside position was “denied due to consistent past
practices regarding outside positions.” After further
questioning from Sobol about whether W&S employees
could hold public service positions, Miller wrote that
“[p]aid public service positions are subject to approval
by [the human resource department] as stated in
the policy.”
On October 4, Martino emailed Miller the following:
It has become evident from your decision via
e-mail on Sept. 27 telling me to terminate this
“outside business venture” immediately that I
need to address this situation. It has also become
very evident from your e-mail conversations
with my District Manager Mr. Sobol, that you
have no intention of approving my public
service position, which with God’s blessings I
will continue to serve in, as pastor of a small
community church. Is the company denying
my public service position and terminating my
agent appointment with Western Southern?
Please be specific so I will know what my posi-
tion is with the company. Thank you.
Miller responded that W&S was not discharging
Martino but asking that he resign his pastoral position
because it did not comply with the company’s policy.
At the same time Martino, Sobol, and Miller were
discussing his outside position, Sobol and other W&S
employees were attempting to verify Martino’s eligi-
bility to work in the United States. The Immigration
No. 12-1855 5
Reform and Control Act of 1986 (“IRCA”) requires em-
ployers to complete documents verifying each employee’s
identity and eligibility to work in the United States
within three business days of hiring using Form I-9,
Employment Eligibility Verification (“I-9 form”). 8
U.S.C. § 1324a(a)(1)(B); 8 C.F.R. § 274a.2(a)(2), (b)(1)(ii).
If an employee does not have the appropriate em-
ploym ent eligibility verification document, the
employer must accept a receipt showing that the
employee has applied for a replacement document.
8 C.F.R. § 274a.2(b)(1)(vi). The employee then has
90 days to produce the replacement document. Id.
§ 274a.2(b)(1)(vi)(3).
On September 5, the day after he was hired, Martino
submitted an I-9 form. He provided his name, address,
date of birth, and social security number, but did not
show W&S documents verifying his eligibility. Martino
told J. Maxine Edwards, the Michiana office’s district
administrator, that he could not find his social security
card but would apply for a duplicate one and would
also search his mother’s house for the original.
Edwards attached a note to Martino’s I-9 form indi-
cating that he was applying for a replacement social
security card. She then sent the form to the field
human resource department. Tarah Corlett, the
division’s human resource manager, became aware of
Martino’s incomplete I-9 form shortly after he submitted
it. Edwards and Sobol spoke with Martino multiple
times between September 5 and October 16 about the
importance of completing the I-9 process.
6 No. 12-1855
On September 19, the Elkhart, Indiana office of the
Social Security Administration (“SSA”) verified Martino’s
social security number, but it did not allow him to apply
for a replacement social security card because he did
not have evidence of his naturalization. Instead, Martino
received a document from the office verifying his
social security number but also stating that the docu-
ment “[did] not verify his right to work in the United
States.” The South Bend, Indiana office of the SSA
also refused to allow Martino to apply for a duplicate
social security card because he did not have documents
establishing citizenship or lawful alien status. On
October 6, that office gave him a letter that stated that
the SSA was awaiting documentation from the Depart-
ment of Homeland Security (“DHS”), which would
take thirty to forty-five days to obtain. Martino gave
the documents from both SSA offices to Edwards the
days he received them, although he understood that
they were not sufficient to meet the I-9 requirements.
From talking with Sobol about Martino’s I-9 situa-
tion, Corlett, the human resources manager, learned that
Martino could not obtain a replacement social security
card until he obtained proof of his naturalization, which
would take a significant amount of time to obtain ac-
cording to Sobol. Corlett reviewed the SSA letters
Martino received and determined that they were not
sufficient to apply the “receipt rule,” which would
have given Martino a ninety-day grace period. She then
concluded that Martino would not be able to complete
the I-9 process within a reasonable time period and be-
lieved W&S could not continue to employ him without
No. 12-1855 7
documentation verifying his employment eligibility. On
October 9, Corlett prepared a letter notifying Martino
that W&S would place him on unpaid suspension if he
did not produce a work authorization document in
five business days. The letter directed Martino to fax
the required documentation no later than October 13.
Corlett discussed the letter with Sobol, who asked if
the company could simply indefinitely suspend
Martino. Corlett said that was not an option although
Martino could resign within the five-day period. Sobol
talked to Martino about the letter but did not mention
the resignation option because he wanted Sobol to
continue looking for his social security card. When
Sobol talked to Corlett, however, he told her that he
had discussed the resignation issue with Martino and
that Martino did not want to resign.
Martino did not produce a document verifying his
employment eligibility by October 13. Corlett explained
Martino’s I-9 situation to the director of the field hu-
man resource department and recommended termina-
tion to the division’s vice president, who made the
decision to discharge Martino. The October 16 termina-
tion letter stated that W&S was discharging Martino
due to his failure to provide the necessary documentation.
At the time of Martino’s termination, W&S’s policy was
to notify the state insurance department of all sales rep-
resentatives’ involuntary terminations of employment.1
1
The record is not clear about whether W&S reported all
terminations or only involuntary ones. Although Martino
(continued...)
8 No. 12-1855
As a result of this policy, Brenda Feige, W&S’s enterprise
licensing manager, sent the Indiana Department of Insur-
ance a form letter that provided Martino’s name and
social security number and notified the department
that Martino no longer represented W&S and that W&S
no longer employed him. To that form letter, Feige at-
tached a copy of Martino’s termination letter, which
identified his failure to provide employment eligibility
verification documents as the reason for discharge. The
insurance department investigated the social security
number on Martino’s insurance application, determined
the number was valid, and closed its investigation.
Martino filed a charge with the Equal Employment
Opportunity Commission, alleging discrimination based
on religion and national origin and claiming that
W&S terminated him for refusing to resign his outside
position as a pastor. He later filed a second charge,
alleging W&S retaliated against him for filing the first
charge by sending his termination letter to the state
insurance department. After receiving a right-to-sue
letter on both charges, Martino sued W&S in state court.
W&S removed the case to federal court. In his second
amended complaint, Martino alleges religious discrim-
ination, national origin discrimination, and retaliation,
(...continued)
raises this as a genuine issue of fact warranting a trial, it is
not material because his termination was involuntary, and
W&S would have reported it to the state insurance depart-
ment under either approach.
No. 12-1855 9
all in violation of Title VII, as well as a state-law claim
for defamation. The district court granted W&S’s
motion for summary judgment, finding that Martino
had failed to raise a genuine issue of material fact and
that the evidence before the court was insufficient to
find that W&S’s proffered reason for discharge was
pretextual or that W&S defamed Martino. Martino
appeals the district court’s decision only on the
religious discrimination and defamation claims.
II. ANALYSIS
The issue before us is whether Martino has presented
evidence sufficient to raise genuine issues of material
fact as to: (1) whether W&S terminated his employment
based on his religion; and (2) whether the company
defamed him by reporting the termination to the state
insurance department.2 After reviewing the record,
we determine that he has not.
2
W&S made two procedural challenges, one alleging that
Martino failed to file his lawsuit within the six-month con-
tractual limitation specified in his employment agreement
and the other that he failed to exhaust his administrative
remedies on the retaliation claim. We need not reach these
issues because we have resolved the Title VII discrimina-
tion claim on the merits and because Martino has not ap-
pealed the district court’s decision on his retaliation claim.
10 No. 12-1855
A. No Evidence of Pretext Presented
Title VII makes it unlawful for an employer to
discharge or discipline an employee because of that per-
son’s religion. 42 U.S.C. § 2000e-2(a)(1). An employee
may prove discrimination under Title VII either directly,
or indirectly using the burden-shifting method articu-
lated in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See Antonetti v. Abbott Labs., 563 F.3d 587,
591 (7th Cir. 2009). Under the direct method, a plaintiff
must “present either direct evidence of discriminatory
intent (such as an admission) or enough circumstantial
evidence to allow a rational jury to infer that discrim-
inatory intent motivated his firing.” Burnell v. Gates
Rubber Co., 647 F.3d 704, 708 (7th Cir. 2011). Under
the indirect method, a plaintiff establishes a prima
facie case of discrimination by offering evidence that:
“(1) he is a member of a protected class; (2) he was quali-
fied for the applicable positions; (3) he suffered an
adverse employment action; and (4) similarly-situated
persons not in the protected class were treated more
favorably.” McGowan v. Deere & Co., 581 F.3d 575, 579
(7th Cir. 2009). A plaintiff can also establish a prima
facie case of religious discrimination by showing “that
the observance or practice conflicting with an employ-
ment requirement is religious in nature, that she called
the religious observance or practice to her employer’s
attention, and that the religious observance or practice
was the basis for her discharge or other discriminatory
treatment.” EEOC v. Ilona of Hungary, Inc., 108 F.3d
1569, 1575 (7th Cir. 1997). If a defendant presents a legiti-
mate, nondiscriminatory basis for the adverse employ-
No. 12-1855 11
ment action at the summary judgment stage, “the
plaintiff must show that a genuine issue of material fact
exists as to whether the defendant’s proffered reason
was pretextual to avoid the entry of summary judgment
against it.” Scruggs v. Garst Seed Co., 587 F.3d 832, 838
(7th Cir. 2009). In this analysis, “[p]retext means a
lie, specifically a phony reason for some action.” Millbrook
v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir. 2002) (internal
quotation marks omitted). Generally, courts first con-
sider whether a plaintiff has established a prima facie
case of discrimination. Hague v. Thompson Distribution
Co., 436 F.3d 816, 823 (7th Cir. 2006). However, when
the defendant offers a legitimate, nondiscriminatory
reason for the adverse employment action, courts may
begin with the pretext inquiry. See, e.g., Brewer v. Bd. of
Trs. of Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007).
We begin here with the pretext analysis because W&S
has offered a legitimate, nondiscriminatory basis for
terminating Martino’s employment. Specifically, the
company argues that it discharged Martino because of
his failure to provide it with documents verifying his
employment eligibility. The burden shifts to Martino
to show that this I-9 explanation is mere pretext.
He attempts to do so by arguing that W&S treated com-
parators differently, that the timing of the termina-
tion decision was suspicious, and that he was entitled
to ninety days to produce an employment verification
document under the “receipt rule.” None of these argu-
ments—individually or collectively—shows that W&S’s
explanation is pretext or presents a genuine issue
of material fact.
12 No. 12-1855
1. Treatment of Bacon Does Not Show Pretext
An employee may show that his employer’s explana-
tion for an adverse action is pretextual by showing
that similarly situated persons outside the protected
class received more favorable treatment from the em-
ployer. Coleman v. Donahoe, 667 F.3d 835, 841 (7th
Cir. 2012). “In the usual case a plaintiff must at
least show that the comparators (1) dealt with the same
supervisor, (2) were subject to the same standards, and
(3) engaged in similar conduct without such dif-
ferentiating or mitigating circumstances as would dis-
tinguish their conduct or the employer’s treatment of
them.” Id. at 847 (internal quotes omitted). “[T]he similarly-
situated inquiry should not devolve into a mechanical,
‘one-to-one mapping between employees.’ ” Id. (quoting
Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th
Cir. 2007)). It does, however, require “enough common
factors . . . to allow for a meaningful comparison in
order to divine whether intentional discrimination was
at play.” Id. (quoting Barricks v. Eli Lilly & Co., 481 F.3d
556, 560 (7th Cir. 2007)).
Martino argues that he was similarly situated to
Michael Bacon, a district manager from another division.
Like Martino, Bacon also had an I-9 issue. Martino con-
tends, however, that Bacon received more favorable
treatment from W&S. The evidence does not support
Martino’s position.
Bacon completed an I-9 form for W&S when the com-
pany hired him in 1999. At that time, he had temporary
work authorization status and the proper documenta-
tion to complete the I-9 process. He renewed his status
No. 12-1855 13
in 2000 but failed to renew it again when it expired in
February 2001. No one at the company knew Bacon
was working without authorization until May 2006,
when Jim Hanseman, the human resource manager for
Bacon’s division, discovered the problem. Hanseman
and others in the field human resource department
initially followed up with Bacon to obtain a document
to re-verify his work authorization. In mid-July,
Keith Payne, the vice president for Bacon’s division
and the person who had the ultimate decision-making
authority for hiring and firing decisions in that
division, took the lead. Thomas Johnson, the director of
the field human resource department, learned of the
issue in the summer of 2006.
From May through August 2006, Bacon assured
Hanseman, Payne, and others involved that he was
authorized to work in the United States. W&S allowed
him time to produce the necessary documentation
because he had previously verified his employment
eligibility through the I-9 process, he expressly told
the company that he was eligible, and he had a close
relationship with Payne. After receiving a letter from
Bacon’s lawyer that called into question Bacon’s ability
to complete the I-9 process, the field human resource
department took over. On Friday, August 11, 2006,
Johnson met with Bacon and gave him five business
days, until August 18, to have his lawyer contact
W&S and explain how he would demonstrate his work
authorization status. If he did not meet this deadline,
W&S would terminate his employment. Bacon resigned
on August 22.
14 No. 12-1855
The evidence in the record is not sufficient to
establish that Bacon is a proper comparator for the pur-
poses of Martino’s Title VII religious discrimination
claim. Specifically, Martino has not offered any evidence
of Bacon’s religion, religious practices, or outside
religious employment. And without this information,
we cannot determine whether Bacon falls within
the same protected group as Martino or that W&S’s
explanation for terminating Martino’s employment was
pretextual.
Even if Bacon were outside Martino’s protected
group, the evidence in the record suggests he is not a
suitable comparator for pretext purposes. Although the
same human resources director—Johnson—had over-
sight of Bacon’s and Martino’s I-9 issues, and although
they were both subject to the same IRCA requirements,
the nature of their I-9 issues vis-à-vis the termination
decision was substantially different. From the beginning
of his employment, Martino was unable to establish
that he was eligible for employment in the United
States, and he gave W&S no indication that he would
be able to produce the required documents in the
necessary timeframe, even after more than a month
passed. From this, W&S understood that Martino could
not comply with IRCA. In contrast, Bacon had a history
of authorized work with the company and led the
company to believe that he could produce the necessary
documents. Bacon’s history of authorized work with
the company, his relationship with the division’s vice
president, and the way he misled the company con-
vinced W&S to grant him additional time to produce
No. 12-1855 15
the documents. But three months later, when it became
clear that Bacon could not produce documents verifying
his employment eligibility, Johnson met with him and
gave him the same five-day warning that Martino
received from Corlett. So ultimately, Bacon received the
same treatment that Martino did: a five-day warning.
The three-month delay between W&S’s discovery of
Bacon’s I-9 issue and the five-day warning he received
is not suspicious given the differences in Bacon’s
and Martino’s employment histories with W&S. Fur-
thermore, as with Bacon, W&S waited longer than
the statutorily allowed three business days to allow
Martino to produce his documents. Only after a month
and when the company was convinced that he could
not produce the documents did he receive a warning.
2. Treatment of Snyder Does Not Show Pretext
Martino next argues that because W&S did not
terminate the employment of Tim Snyder, a W&S em-
ployee who maintained a non-religious outside
position that violated the company’s hour and comp-
ensation limits, the company’s proffered explanation
for his discharge is pretextual. Martino’s argument
falls far short. Snyder’s outside position request form
indicated that his part-time position as a music professor
complied with the company’s time and earning limita-
tions—four-and-a-half to five hours per week and
weekly pay of eighty dollars. Martino does not offer
evidence that anyone in the human resources depart-
ment or in management had access to information sug-
16 No. 12-1855
gesting otherwise.3 Because W&S believed that Snyder’s
position complied with its policy, it would have had
no reason to require Snyder to resign his outside
position or to threaten him with termination if he
refused to do so. In contrast, Martino expressly stated
on his outside position form that his pastoral work ex-
ceeded the company’s time and earnings limitations,
and he refused to resign the outside position (to Miller’s
knowledge) or reduce its hours or pay. Given the dif-
ferences in Martino’s and Snyder’s circumstances, we
cannot conclude that W&S’s treatment of Snyder under-
mined W&S’s explanation for Martino’s termination.
3. Timing of Termination Decision Does Not Sug-
gest Pretext
Martino also claims that the timing of the I-9
compliance pressure is further evidence that W&S’s ex-
planation for his discharge is pretextual. Specifically,
he argues that it is suspicious that Corlett sent the
warning letter on October 9, just days after the October 4
email in which he refused to resign his outside position.
Suspicious timing can be circumstantial evidence of
discrimination. Pugh v. City of Attica, Ind., 259 F.3d 619,
628 (7th Cir. 2001). But surviving summary judgment
through a showing of pretext requires much more than
3
According to W&S, Snyder’s failure to comply with the
outside position policy was not apparent to human resources
or management until after Martino pursued this action.
No. 12-1855 17
the conclusory allegation of suspicious timing that
Martino offers. Id. at 629 (“[T]iming alone does not
create a genuine issue as to pretext if the plaintiff is
unable to prove, through other circumstantial evidence,
that he was terminated for a reason other than that prof-
fered by the employer.”).
The only evidence in the record on timing supports
W&S’s explanation. W&S had been requesting an employ-
ment eligibility verification document from Martino
since early September. On Friday, October 6, Martino
gave W&S the letter from the South Bend SSA office
explaining that the office was awaiting DHS authoriza-
tion, which would take thirty to forty-five days to ob-
tain. The next business day, Monday, October 9, Corlett
responded to the latest news of the problems with
Martino’s documents with the warning letter. While
Martino seems to suggest that W&S’s decision to
pursue the I-9 problem before resolving the outside
position dilemma was discriminatory, nothing in the
record shows that W&S pressed the verification issue
to cover up discriminatory animus or that the timing
of his discharge was suspicious.
4. Martino Waived the Receipt-Rule Argument
Martino argues that because Corlett knew that he was
entitled to the receipt rule’s ninety-day grace period but
declined to apply it, the only reasonable inference one
can draw is that she wanted him discharged due to his
outside religious position. He also contends that there is
a genuine issue of fact as to whether the receipt he pos-
18 No. 12-1855
sessed, which Corlett found insufficient to satisfy
the receipt rule, was adequate.
Because Martino did not raise this receipt-rule argu-
ment in the district court, he has waived it. Harper v.
Vigilant Ins. Co., 433 F.3d 521, 528 (7th Cir. 2005). But
even if he had not waived the argument, it does not
advance his cause. Under the receipt rule, an em-
ployee who lacks an appropriate employment eligibility
verification document may present his or her employer
with a receipt showing that he or she has applied for
a replacement document and the employee then has
90 days to produce the replacement document. See 8
C.F.R. § 274a.2(b)(1)(vi). Whether the receipt rule
applied is not the issue in the pretext analysis. Rather,
to show that W&S’s nondiscriminatory explanation
was pretextual, Martino must show that Corlett be-
lieved that Martino was entitled to a ninety-day grace
period under the receipt rule but chose not to apply
it. McCoy v. WGN Cont'l Broad. Co., 957 F.2d 368, 373 (7th
Cir. 1992) (“[T]he issue of pretext does not address
the correctness or desirability of reasons offered for
employment decisions. Rather, it addresses the issue of
whether the employer honestly believes in the reasons
it offers.”); Silverman v. Bd. of Educ. of City of Chi.,
637 F.3d 729, 739 (7th Cir. 2011). The evidence in
the record does not support Martino’s assertion
that Corlett knew the receipt-rule applied or his con-
clusion that her receipt-rule analysis was pretextual.
Instead, it showed that Corlett analyzed the SSA
letters Martino gave her, concluded they did not
satisfy the receipt rule, and reported the documentation
No. 12-1855 19
issue to her supervisor, who terminated Martino’s em-
ployment.
In sum, none of Martino’s purported evidence of pre-
text is sufficient to survive summary judgment.
B. No Actionable Defamation Claim
Martino alleges that W&S committed defamation by
implication when it sent notice to the state insurance
department that it had terminated his employment.
Indiana requires insurers to notify the state if an
agent has violated an insurance law, provided incorrect
or misleading information in a license application, been
convicted of a felony, or committed any one of several
enumerated financial or insurance-related crimes and
misdeeds. Ind. Code § 27-1-15.6-15. In his view, because
the statute requires reporting for specific bad acts,
W&S implied that his discharge was the result of one
of those acts.
In Indiana, defamation is actionable when communica-
tion exists with four elements: “defamatory imputation,
malice, publication, and damages.” Trail v. Boys & Girls
Clubs of Nw. Ind., 845 N.E.2d 130, 136 (Ind. 2006). Defama-
tion is either per se or per quod. Kelley v. Tanoos, 865 N.E.2d
593, 596 (Ind. 2007). Defamation per se exists when
a communication imputes: “(1) criminal conduct; (2) a
loathsome disease; (3) misconduct in a person’s trade,
profession, office, or occupation; or (4) sexual miscon-
duct.” Id. All other defamatory communications are
defamation per quod, which requires a showing of special
20 No. 12-1855
damages, id. at 597, or “damages that are pecuniary in
nature and that have been actually incurred as a natural
and proximate consequence of the wrongful act.” Tacket
v. Delco Remy Div. of Gen. Motors Corp., 937 F.2d 1201, 1206
(7th Cir. 1991) (applying Indiana law) (quoting Stanley
v. Kelley, 422 N.E.2d 663, 668 (Ind. Ct. App. 1981)).
The question of whether a statement is defamatory or
subject to defamatory inference is at first a question of
law for the court. Journal-Gazette Co., Inc. v. Bandido’s,
Inc., 712 N.E.2d 446, 457 (Ind. 1999).
Martino’s defamation claim fails because the letters
sent to the state insurance department are not defama-
tory. “Any statement actionable for defamation must
not only be defamatory in nature, but false.” Trail, 845
N.E.2d at 136; accord Doe v. Methodist Hosp., 690
N.E.2d 681, 686-87 (Ind. 1997). Nothing in the form
and termination letters sent to the state insurance de-
partment was false. Martino suggests that the letters
defamed him because they were the vehicle for
excessive reporting designed to harm his reputation.
This argument is unpersuasive. Although the Indiana
Code did not require W&S to report Martino’s termina-
tion to the state insurance department, it did not
prevent the company from doing so. No evidence in the
record suggests that W&S singled Martino out by
reporting his discharge to the state. Rather, W&S
simply followed the company’s policy of reporting
all involuntary terminations.
Even if we found that the form and termination
letters were defamatory, Martino’s claim would still fail
No. 12-1855 21
because he has not established a prima facie case of
defamation per se or per quod. Nothing on the face of the
letters sent to the state insurance department imputes
criminal conduct or misconduct in the insurance profes-
sion. Rather, they simply state that Martino was no
longer in the company’s employment and that he failed
to provide employment eligibility documents. Martino,
however, argues that the letter W&S sent to the state
insurance department was defamation per se because it
implied criminal conduct or misdeeds in his trade. The
Supreme Court of Indiana has held that a plaintiff has
alleged defamation per se when the words are “so obvi-
ously and naturally harmful that proof of their injurious
character can be dispensed with.” Baker v. Tremco, Inc.,
917 N.E.2d 650, 658 (Ind. 2009) (quoting Levee v. Beeching,
729 N.E.2d 215, 220 (Ind. Ct. App. 2000)). Because the
letters do not mention Section 27-1-15.6-15 of the Indiana
Code, to reach Martino’s conclusion, we would have
to find that the insurance department official who
received the letter would automatically understand that
W&S sent the letter to comply with the code provision
requiring reporting for criminal activity and professional
misconduct. This is highly unlikely, given the fact that
W&S attached the termination letter, which clearly
stated the reason for Martino’s discharge. Regardless, the
additional step of placing the letter in the context of state
statutes to understand its implications shows that the
defamation alleged is per quod. See Dugan v. Mittal Steel
USA Inc., 929 N.E.2d 184, 186 (Ind. 2010) (“[I]f the
words used are not defamatory in themselves, but
become so only when understood in the context of
22 No. 12-1855
extrinsic evidence, they are considered defamatory per
quod.”). Under a per quod analysis, Martino’s defamation
claim fails because he has not presented any evidence
of special damages. Instead, he alleges only humiliation
and embarrassment, which alone are not sufficient to
plead a prima facie case of defamation.
As with his Title VII claim, Martino has not offered
evidence creating a genuine issue of material fact that
would require a trial to resolve.
III. CONCLUSION
For the reasons set forth above, we A FFIRM the judg-
ment of the district court.
4-25-13