Wood v. American Federation of Government Employees ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DUANE WOOD,
Plaintiff
v.
Civil Action No. 16-2139 (CKK)
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, et al.,
Defendants
MEMORANDUM OPINION
(June 22, 2018)
Plaintiff, proceeding pro se, brings this action against Defendants American Federation
of Government Employees (“AFGE”) and Nathaniel Nelson, an AFGE National Representative.
Plaintiff was formerly an AFGE union member and the Executive Vice President of AFGE Local
2798. Plaintiff was removed from the union after an arbitrator sustained charges that Plaintiff
had wrongfully withdrawn money from Local 2798’s bank accounts and encouraged members to
sign a “decertification petition.” In this lawsuit—as narrowed by the Court’s earlier ruling on
Defendants’ Motion to Dismiss—Plaintiff claims that Defendant Nelson defamed him in an e-
mail Mr. Nelson sent to a group of AFGE union members, officers and staff in November, 2015.
Before the Court is Defendants’ [38] Motion for Summary Judgment. Upon
consideration of the pleadings, 1 the relevant legal authorities, and the record for purposes of this
1
The Court’s consideration has focused on the following documents:
• Defs.’ Mot. for Summary Judgment (“Defs.’ Mot.”), ECF No. 38;
• Pl.’s Resp. to Defs.’ Mot. for Summary Judgment (“Pl.’s Resp.”), ECF No. 40;
• Pl.’s Exhibits to Resp. to Defs.’ Mot. for Summary Judgment, ECF No. 41 (“Pl.’s Exs.”);
and
• Defs.’ Reply in Support of their Mot. for Summary Judgment, ECF No. 42.
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motion, the Court GRANTS Defendants’ Motion. There are no genuine disputes of material fact
with respect to the truth of any statement in Mr. Nelson’s e-mail, or with respect to the
applicability of qualified privilege to that e-mail. Defendants are entitled to judgment as a matter
of law. This case is DISMISSED.
I. BACKGROUND
This case was narrowed considerably when the Court granted-in-part and denied-in-part
Defendants’ Motion to Dismiss. See June 15, 2017 Mem. Op. & Order, ECF Nos. 9, 10. Most
importantly, this case no longer includes claims about supposed unfair labor practices. At this
stage, all that remains in Plaintiff’s lawsuit is a defamation claim based on a November 30, 2015
e-mail authored by Mr. Nelson. That e-mail contained the subject line “No Early Christmas
Bonus for the Duane Wood Gang of crooks.” Defs.’ Mot., Ex. 4, at 0042. In its entirety, it reads
as follows:
During the Thanksgiving holidays, I received a flood of telephone
calls from outraged members of local 2798 indicating that Duane
Wood, Carroll Wallace, and the appointed Vice President had
entered into a conspiracy to illegally appoint Duane Wood as a
shop steward without notifying the Trustee or anyone else in
District 14. The trustee was on vacation during this time and she
left a clear message for all of her locals to call me in her absence
for all union business. I did not receive a single phone call from
the acting vice President or Carroll Wallace about permitting
Duane Wood to perform shop steward duties. A federal arbitrator
banned Duane Wood from holding any union office for 10 years
and he must pay back the $1,600.00 before he can be a member.
Members reported that Duane Wood was permitted to go in the
union office (with his feet on top of a desk) and pass out union
information to the members. Both Carroll Wallace and the acting
Vice president knew Duane Wood was banned from union
activities because they both participated with Duane Wood for the
purpose of attempting to decertify local 2798. It was reported that
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
2
Mr. Wood was permitted to destroy all of the negative information
pertaining to him that were stored in the union office. He also used
his IT ability to erase the arbitration decision from certain
computers and block access to other computers. I just happen to
have a copy of the arbitration decision that I had saved on a flash
drive. I have forwarded a copy of this decision to Trustee Octavia
Hall and NVP Bunn. I am recommending to the Trustee that
charges be filed against Carroll Wallace and the Acting Vice
President. Members further told me that Duane Wood and Carroll
Wallace’s primary goal was to raid the bank account of local 2798
because they knew local 2798 had a lot of money. There will not
be an early Christmas Bonus for any of these gang members
because they have proven that they can’t be trusted with the check
book or credit card. Please do not believe the rumors that Duane
Wood has been officially appointed as a shop Steward because it is
a lie. I thank everyone who reported this activity to me.
Id. This e-mail was sent to following individuals: Eric Bunn, Andrea Hall, Veronica Edmonds,
Stanley Snow, and Octavia Hall. Id.; see also Defs.’ Mot., Ex. 2 (April 20, 2017 Depo. of
Nathaniel Nelson) (“Nelson Depo.”), at 60:9-12. All of these individuals were either officers,
employees or members of AFGE. See Nelson Depo. at 60:13-61:22; see also Defs.’ Mot., Ex. 1
(April 20, 2017 Depo. of Duane Wood) (“Wood Depo.”), at 22:4-26:14. One of the recipients,
Octavia Hall, forwarded the e-mail to two other individuals, both of whom were also union
representatives. See Defs.’ Mot., Ex. 4, at 0043; Wood Depo. at 78.
Plaintiff claims that Mr. Nelson’s e-mail defamed him. Defendants contend, among other
things, that the statements in the e-mail are all true, substantially true or, at most, hyperbole.
They also contend that the e-mail is protected by privilege because Mr. Nelson and the e-mail’s
recipients all shared a common interest in the supposed wrongdoing of individuals related to the
union and that Plaintiff consented to being the subject of such e-mails by voluntarily joining
AFGE and running for office. Defendants have moved for summary judgment, Plaintiff has filed
a lengthy response, and Defendants have filed a reply. Defendants’ motion is accordingly ripe
for resolution.
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II. LEGAL STANDARD
Summary judgment is appropriate where “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 mere existence of some factual dispute is insufficient on its own to bar
summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to
the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient
admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to
specific parts of the record—including deposition testimony, documentary evidence, affidavits or
declarations, or other competent evidence—in support of its position, or (b) demonstrate that the
materials relied upon by the opposing party do not actually establish the absence or presence of a
genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual
basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See
Ass’n of Flight Attendants-CWA, AFL-CIO v. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir.
2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact,” the district court may “consider the fact undisputed for
purposes of the motion.” Fed. R. Civ. P. 56(e).
When faced with a motion for summary judgment, the district court may not make
credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the
light most favorable to the non-movant, with all justifiable inferences drawn in its favor. Liberty
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Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are
susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.
Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine
“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.” Liberty Lobby, 477
U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50
(internal citations omitted).
III. DISCUSSION
The Court will grant Defendants’ Motion for Summary Judgment. Under District of
Columbia law, a plaintiff asserting defamation must establish four elements: “(1) that the
defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant
published the statement without privilege to a third party; (3) that the defendant’s fault in
publishing the statement amounted to at least negligence; and (4) either that the statement was
actionable as a matter of law irrespective of special harm or that its publication caused the
plaintiff special harm.” Oparaugo v. Watts, 884 A.2d 63, 76 (D.C. 2005) (quoting Crowley v.
North Am. Telecomms. Ass’n, 691 A.2d 1169, 1173 n.2 (D.C. 1997)). Based on the undisputed
factual record, Defendants are entitled to judgment as a matter of law on at least two of these
elements. First, there is no genuine dispute about the facts relevant to whether qualified
privilege applies to Mr. Nelson’s e-mail. The e-mail is privileged as a matter of law. Second,
the Court has exhaustively reviewed the record in this case and concludes that there are no
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genuine disputes of fact relevant to the truth or falsity of the statements in Mr. Nelson’s e-mail.
The only evidence presented indicates that they were all true, substantially true or, at most,
hyperbole.
Plaintiff’s Response to Defendants’ Motion for Summary Judgment raises numerous
irrelevant issues, quibbles over inconsequential perceived discrepancies, and makes conclusory
allegations without basis in the evidentiary record. 2 Although such allegations may have been
sufficient at the pleading stage, at the summary judgment stage Plaintiff was required to present
record evidence in support of his allegations. See Montgomery v. Risen, 197 F. Supp. 3d 219,
262 (D.D.C. 2016), aff’d, 875 F.3d 709 (D.C. Cir. 2017) (“conclusory statements unaccompanied
by supporting facts in the record are insufficient to defeat a motion for summary judgment.”); see
also Nov. 21, 2017 Order, ECF No. 39 (warning Plaintiff about his evidentiary burden when
opposing Defendants’ summary judgment motion). He has not done so.
A. Qualified Privilege
Plaintiff’s defamation claim cannot survive the summary judgment stage because, based
on the undisputed record, Mr. Nelson’s e-mail is protected by qualified privileged. First, the e-
2
One of Plaintiff’s recurring assertions is that “Defendants’ ‘Evidence’ Allegedly Supporting its
Filing Comprises Irrelevant, Inadmissible, and Incompetent Evidence.” Pl.’s Resp. at 17. This is
not persuasive. First, to the extent that this argument is based on Plaintiff’s suggestion that the
Court’s earlier Memorandum Opinion and Order granting-in-part and denying-in-part
Defendants’ Motion to Dismiss somehow limited the evidence Defendants could rely on at the
summary judgment stage, that suggestion is wrong. The Court’s June 15, 2017 Memorandum
Opinion and Order dismissed certain aspects of Plaintiff’s claims—it had nothing to do with
what evidence Defendants could rely on to defend themselves from the claims that remained.
Second, with respect to Plaintiff’s generalized arguments about “admissibility,” the Court simply
notes that summary judgment evidence need not be “in a form that would be admissible at trial,”
so long as it is “capable of being converted into admissible evidence.” Gleklen v. Democratic
Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000) (emphasis in original). The
Court has not relied on any evidence presented by Defendants that would not have been capable
of being converted into admissible evidence at a trial, if that had been necessary.
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mail is protected by the qualified common interest privilege. “A statement is protected by the
common interest privilege if it is ‘(1) made in good faith, (2) on a subject in which the party
communicating has an interest, or in reference to which he has or honestly believes he has a duty
(3) to a person who has such a corresponding interest or duty.’” Payne v. Clark, 25 A.3d 918,
925 (D.C. 2011) (quoting Moss v. Stockard, 580 A.2d 1011, 1024 (D.C. 1990)). “Whether a
statement is privileged is a question of law.” Id. “Where the court determines that
the common interest privilege is applicable, ‘the defendant will be presumed to have been
actuated by pure motives in its publication [, and] [i]n order to rebut this presumption, express
malice or malice in fact must be shown [by the plaintiff].’” Id. (quoting Moss, 580 A.2d at 1024
(internal citation omitted)).
Applying the common interest privilege, the D.C. Circuit has held that “there is no doubt
that an officer of a union has a qualified privilege when he makes a statement informing the
union of any supposed dereliction of duty of its officers.” Blake v. Trainer, 148 F.2d 10, 12
(D.C. Cir. 1945). This principle applies here. Mr. Nelson is a National Representative of AFGE.
His e-mail was sent to a small group of AFGE officers, members and staff, who all had a
common interest in the proper functioning of AFGE Local 2798, violations of union rules, any
supposed dereliction of duty by union officers, and anything else that materially affected their
union. 3 The statements in Mr. Nelson’s e-mail informed these officers, members and staff of the
supposed union-related wrongdoing of Plaintiff, a former AFGE officer, and two other AFGE
officers. The e-mail therefore concerned matters of legitimate interest to officers, members and
staff of AFGE and was entitled to qualified privilege. See Manbeck v. Ostrowski, 384 F.2d 970,
3
Although Plaintiff vaguely hints that he believes others may have seen the e-mail, there is no
evidence in the record that the e-mail was distributed to anyone outside this group.
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974 (D.C. Cir. 1967) (holding that qualified privilege principles were “rather obviously”
applicable where union president accused the plaintiff of improprieties with respect to a fee the
plaintiff had charged the union in front of an audience made up of union members with mutual
interest in the subject); Blodgett v. Univ. Club, 930 A.2d 210, 223 (D.C. 2007) (“Because
Blodgett voluntarily joined the Club and agreed to be bound by its by-laws and rules, his conduct
within the Club became a matter of ‘common interest’ to the defendants”). 4
Second, the Court also finds that Mr. Nelson’s e-mail was privileged on the grounds of
consent. “The publication of a defamatory statement is privileged if: (1) there was either express
or implied consent to the publication; (2) the statements were relevant to the purpose for which
consent was given; and, (3) the publication of those statements was limited to those with a
legitimate interest in their content.” Farrington v. Bureau of Nat. Affairs, Inc., 596 A.2d 58, 59
(D.C. 1991). Like the common interest privilege, the D.C. Circuit has applied the consent
privilege to statements about conduct affecting the business of unions. See Manbeck, 384 F.2d at
973 (“plaintiff . . . ‘by virtue of his membership in the union, and assuming to serve it, was
subject to reasonable criticism in respect of the work performed for the union.’”) (quoting
Caldwell v. Hayden, 42 App. D.C. 166, 170 (D.C. Cir. 1914)).
Plaintiff voluntarily joined AFGE Local 2798 and then successfully ran for union office.
See Wood Depo. at 12, 15-16, 19-20. By doing so, Plaintiff consented to the requirements that
4
Plaintiff argues that at the time Mr. Nelson’s e-mail was sent, Plaintiff was no longer an AFGE
member. See Pl.’s Resp. at 19. This does not defeat the common interest privilege. Regardless
of Plaintiff’s membership status, the supposed conduct of Plaintiff discussed in the e-mail was
clearly relevant to the union. The D.C. Circuit has held that the common interest privilege
applied in the union context even where the subject of the allegedly defamatory statements was
not a member or officer of the union. See Manbeck, 384 F.2d at 974 (“the fact that appellee was
the union’s attorney, rather than an officer or member, did not dissipate the immunity the
privilege affords”).
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he uphold the union’s constitution, and abide by its rules and disciplinary procedures. Id. This
impliedly includes a consent to being the subject of internal union discussions criticizing his
union-related activities. Mr. Nelson’s e-mail falls within that category. The purpose of Mr.
Nelson’s e-mail, based on the content of the e-mail itself and Mr. Nelson’s deposition testimony,
was to protect the union by drawing attention to supposed violations of the union’s constitution
and rules. The e-mail was sent only to union officers, members and staff with a legitimate
interest in such information. Plaintiff consented to being the subject of statements like these
when he joined and then ran for elected office within AFGE.
In sum, the undisputed evidence shows that Mr. Nelson’s e-mail was protected by
qualified privileged on the grounds of the common interest privilege and consent. In order to
overcome qualified privilege, Plaintiff would have had to establish “excessive publication or
express malice.” Curry v. Giant Food Co., 522 A.2d 1283, 1294 (D.C. 1987). “The burden of
proof at this stage . . . rests on the plaintiff” and that burden is “quite difficult for a plaintiff to
overcome.” Washburn v. Lavoie, 437 F.3d 84, 91 (D.C. Cir. 2006). Plaintiff has not satisfied
this burden.
With respect to excessive publication, the undisputed record shows that the e-mail was
published only to a small group of union officers, members and staff. It was not excessively
published. Nor has Plaintiff shown malice. Malice, in the context of qualified privilege, “is the
doing of an act without just cause or excuse, with such a conscious indifference or reckless
disregard as to its results or effects upon the rights or feelings of others as to constitute ill will.’”
Payne, 25 A.3d at 925 (quoting Moss, 580 A.2d at 1025). It is the equivalent of bad faith. Id.
“‘[T]he requirement of malice, for purposes of overcoming a common law qualified privilege, is
[not] satisfied if the defendant has done no more than to fail to undertake a reasonable inquiry as
9
to the truth of the assertion prior to publication—conduct amounting to ordinary
negligence.’” Id. (quoting Moss, 580 A.2d at 1025).
There is simply no evidence of malice in the record. Mr. Nelson testified that part of his
job duties included assisting with drafting charges against union locals and officers. See Nelson
Depo. at 69. He testified that he had been approached by several union officers and/or members
complaining about Plaintiff, and that those complaints were what drove him to write the e-mail
in question. Mr. Nelson explained that he wrote the e-mail to “protect those members, protect
the AFGE District 14, Local 2798” and that the “e-mail was for informational purpose, to inform
my supervisor Bunn and the officers who had a need to know what potentially could be going
on.” Nelson Depo. at 37:3-9. Mr. Nelson further explained that the e-mail “had only one
purpose, and one purpose only; the preservation and integrity of our Constitution to ensure
members are complying by it, protecting the local’s assets and funds.” Id. at 71:5-9. He testified
that he passed the information he had received on to others who “could really do something
about it; investigate it, check it out, make sanctions, or file additional charges.” Id. at 83:6-10.
Plaintiff has no evidence to rebut this testimony or to demonstrate that Mr. Nelson
actually sent the e-mail out of malice toward him. Plaintiff has no evidence that Mr. Nelson
knew his statements were false or entertained any doubt as to their truth. Plaintiff states only that
Mr. Nelson had “a vendetta against” him. Nelson Depo. at 122:9. This speculative, conclusory
statement is inadequate to establish actual malice. See Alfred A. Altimont, Inc. v. Chatelain,
Samperton & Nolan, 374 A.2d 284, 290 (D.C. 1977) (“speculation and innuendo” are not
sufficient to show malice); Blodgett, 930 A.2d at 224 (holding that actual malice was not
demonstrated where plaintiff merely “assert[ed] in conclusory fashion” that defendants acted in
bad faith). Moreover, even accepting Plaintiff’s assertion as true, the fact that Mr. Nelson
10
harbored ill will toward Plaintiff generally is insufficient as a matter of law to demonstrate that
he acted with actual malice when he sent his e-mail. See Columbia First Bank v. Ferguson, 665
A.2d 650, 656 (D.C. 1995) (holding that “a showing of ill will toward the plaintiff” was
insufficient to demonstrate actual malice); Mosrie v. Trussell, 467 A.2d 475, 477 (D.C. 1983)
(“the mere existence of ill will on the part of the publisher toward the subject of the publication
does not defeat the publisher’s privilege if the privilege is otherwise established by the occasion
and a proper purpose.”); Alfred A. Altimont, 374 A.2d at 290 (“The fact that the publisher is
inspired in part by resentment or indignation does not defeat the privilege”).
Because the undisputed factual record demonstrates that Mr. Nelson’s e-mail was
protected by qualified privilege, and because there is no evidence that Mr. Nelson excessively
published his e-mail or acted with malice, Defendants are entitled to summary judgment.
B. False Statement
There is an additional reason why Plaintiff’s lawsuit cannot survive the summary
judgment stage. “[I]n a defamation case the plaintiff has the burden of proving that the
challenged statements are . . . false.” Kendrick v. Fox Television, 659 A.2d 814, 819 (D.C.
1995). In their Motion for Summary Judgment, Defendants argued that each of the statements in
Mr. Nelson’s e-mail were true or substantially true—that is, either Plaintiff had not established
the “falsity” element of his defamation claim, or Defendants had established a “substantial truth”
defense to that claim based on the undisputed factual record. Defendants cited to evidence in the
record that supported their arguments with respect to each portion of Mr. Nelson’s e-mail. In his
Opposition, Plaintiff did not point to evidence in the record that would rebut these showings and
11
demonstrate that, in fact, the statements were false or not substantially true. Defendants are
accordingly entitled to summary judgment. 5
First, there are several statements in Mr. Nelson’s e-mail that are simply not capable of
being proven “false,” and therefore cannot be the basis of Plaintiff’s defamation claim. The
Court does not understand Plaintiff to be arguing otherwise. That it was Mr. Nelson’s
recommendation that charges be brought against certain individuals, that Mr. Nelson thanked
individuals for reporting information to him, and that Mr. Nelson was asking the recipients of the
e-mail not to believe certain things, are not statements of fact that are capable of being proven
“false.” At the very least, Plaintiff has not presented any evidence that these statements were
“false.” They therefore cannot form the basis of Plaintiff’s defamation claim.
Second, Defendants argue that the statement about Mr. Nelson “receiv[ing] a flood of
telephone calls” over the Thanksgiving holiday about Plaintiff is true or substantially true. They
point to Mr. Nelson’s deposition testimony, where he confirmed that he, in fact, received such
calls. See Nelson Depo. at 100:6-9. 6 Mr. Nelson testified that “five or six” individuals called
him about this issue. Id. at 100:12. Mr. Nelson could recall the names of only two of those
individuals, but his inability to remember the name of everyone who called him at his deposition
(which occurred nearly three years after the fact) is insufficient to create a genuine dispute of
material fact about the truthfulness of his statement that could defeat summary judgment.
5
The Court need not, and therefore does not, reach Defendants’ additional argument that the
statements in Mr. Nelson’s e-mail did not have a defamatory meaning because they did not lower
Plaintiff’s reputation in the eyes of the e-mail’s recipients, given that those individuals already
held such a poor impression of Plaintiff. See Defs.’ Mot. at 11-14.
6
In his Response to Defendants’ Motion for Summary Judgment, Plaintiff implies that the
deposition testimony of Mr. Nelson is not competent summary judgment evidence. This is
incorrect. Defendants are entitled to rely on Mr. Nelson’s deposition testimony at the summary
judgment stage. If Plaintiff did not agree with what Mr. Nelson said at that deposition, it was
incumbent on Plaintiff to present competent evidence to rebut Mr. Nelson’s testimony.
12
Plaintiff presented no evidence that Mr. Nelson did not receive the calls as he claims, and indeed
Plaintiff admitted at his deposition that he has no such evidence. See Wood Depo. at 67:12-15
(“Q: But I guess what I am asking you is whether you have any information to show that he did
not receive phone calls from members claiming this? A: No.”). To the extent Plaintiff suggests
that “five or six” calls does not rise to the level of a “flood,” this is not sufficiently “inaccurate”
to constitute a “false” statement under District of Columbia law. It is not “false” to characterize
five or six calls about a single union-related topic over the course of a federal holiday as a
“flood.” Plaintiff cannot survive summary judgment based on this type of quibble—so long as
the “gist” of a statement is justified, “minor inaccuracies” are discounted. Armstrong v.
Thompson, 80 A.3d 177, 183 (D.C. 2013).
Third, Defendants argue that the statement “[t]he trustee was on vacation during this time
and she left a clear message for all of her locals to call me in her absence for all union business”
is true. As evidence, they point to a November 24, 2015 automatic e-mail reply of the trustee
during this period, Octavia Hall, which stated: “Unfortunately, I will be out of the office until
Monday, November 30, 2015” and “[i]f you need any assistance, please contact Mr. Nate Nelson
at [his phone number] or by e-mail at [his e-mail address].” See Defs.’ Mot., Ex. 7. To the
extent Plaintiff is claiming that this statement is untrue, he has presented no evidence to support
that claim.
Fourth, Defendants argue that the statement that Mr. Nelson did not receive any phone
calls from “the acting vice President or Carroll Wallace about permitting Duane Wood to
perform shop steward duties” is true. As evidence, Defendants point to Mr. Nelson’s deposition
testimony, where he stated that he did not receive any such calls. See Nelson Depo. at 104.
Plaintiff presented no evidence that would suggest that this statement was false and, in fact,
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appears to have conceded at his deposition that it was true. Wood Depo. at 68-70 (“That
sentence is true.”).
Fifth, Defendants argue that Mr. Nelson’s statement that “[a] federal arbitrator banned
Duane Wood from holding any union office for 10 years and he must pay back the $1,600.00
before he can be a member” is true. As evidence, Defendants have presented the arbitration
decision that states exactly this. See Defs.’ Mot., Ex. 3, at 0011-25. In 2013, AFGE National
President J. David Cox suspended Plaintiff from office and initiated disciplinary charges against
him for alleged financial improprieties and for allegedly leading a campaign to decertify Local
2798. Id. at 0013; see also Defs.’ Mot., Ex. 6, at 014. These charges were ultimately upheld by
an arbitrator who held that “Wood shall be removed from office immediately,” “Wood shall
make restitution to Local 2798 of the American Federation of Government Employees, AFL-
CIO in the amount of $1,600,” “Wood shall be expelled from membership in the American
Federation of Government Employees, AFL-CIO, effective immediately, and shall not be
eligible for reinstatement for five years from the date of this decision and until he had paid the
restitution ordered,” and “Wood shall be barred from holding office in the Union for a period of
ten years from the date of this decision.” Defs.’ Mot., Ex. 3, at 0023-24. Plaintiff is clearly
aggrieved by the outcome of this arbitration, but that is not relevant to this lawsuit. What is
relevant is that Plaintiff has not presented evidence that would suggest that Mr. Nelson’s
statement in his e-mail about the arbitrator’s decision was false.
Sixth, Defendants argue that the statement that “Members reported” to Mr. Nelson that
Plaintiff “was permitted to go in the union office (with his feet on top of a desk) and pass out
union information to the members” is true. As evidence, Defendants point to Plaintiff’s own
written statement that he went to the union office in November 2015. See Defs.’ Mot., Ex. 4, at
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0045. In addition, Mr. Nelson testified at his deposition that a union member told him that he
had seen Plaintiff with “his feet up on the desk” in the office, Nelson Depo. at 101:1-17, 125:5-7,
and additional evidence indicates that union members had complained that Plaintiff “continue[d]
to be involved in union business” after he had been expelled, by disseminating information about
the union to members, Defs.’ Mot., Ex. 4, at 0032-36. The Court discerns from Plaintiff’s
Response to Defendants’ Motion for Summary Judgment, and the documents attached thereto,
that Plaintiff disputes whether he in fact put his feet on top of a desk in the union office. See,
e.g., Pl.’s Resp. at 23. Plaintiff has submitted an e-mail from a Gwendolyn Whatley, which
states that Plaintiff had not “sat behind any desk in this office and put his feet up.” See Pl.’s Exs.
at 60 (marked 035). Even considering Ms. Whatley’s e-mail, Plaintiff has not demonstrated a
genuine dispute of fact with respect to this statement’s falsity. That Ms. Whatley had not seen
Plaintiff with his feet on the top of a desk simply does not mean that Mr. Nelson’s statement—
that it was reported to him that Plaintiff was seen with his feet on a desk—was false. The record
indicates that this was in fact reported to Mr. Nelson by someone other than Ms. Whatley. Ms.
Whatley’s e-mail does not rebut that.
Seventh, Defendants argue that the statement that “Both Carroll Wallace and the acting
Vice president knew Duane Wood was banned from union activities because they both
participated with Duane Wood for the purpose of attempting to decertify local 2798” is true. As
evidence, Defendants have presented the Court with documents that show that the arbitration
decision banning Plaintiff from union activities, cited above, was provided to Ms. Wallace.
Defs.’ Mot., Ex. 4, at 0028. The arbitrator found that Plaintiff had presented members of the
union with a “decertification petition,” and noted testimony that Ms. Wallace had been involved
with the “activities to decertify.” See Defs.’ Mot., Ex. 3, at 0021-22. At his deposition, Plaintiff
15
conceded that both Ms. Wallace and the acting Vice President, Ms. Whatley, knew that Plaintiff
had been banned. See Wood Depo. at 70:10-22. Plaintiff presented no evidence that would
show that this statement in Mr. Nelson’s e-mail was false.
Eighth, Defendants argue that Mr. Nelson’s statements that “[i]t was reported that Mr.
Wood was permitted to destroy all of the negative information pertaining to him that were stored
in the union office” and that he “used his IT ability to erase the arbitration decision from certain
computers and block access to other computers” are true. Mr. Nelson testified at his deposition
that these things were reported to him, and that he believed them to be true. See Nelson Depo. at
109-11. Plaintiff has presented no evidence to the contrary. Plaintiff references an e-mail from
an individual named David Jones which states that “as far as I’m [Mr. Jones] concerned, you’re
clear.” Pls.’ Exs. at 62 (marked 037). It is not at all clear from this e-mail who Mr. Jones is or
what Mr. Jones was stating that Plaintiff was “clear” from. Regardless, Mr. Jones’ opinion that
Plaintiff is “clear” simply does not demonstrate that Mr. Nelson’s statements—that various
things about Plaintiff were reported to him—were false.
Ninth, Defendants argue that the statement that Mr. Nelson had “a copy of the arbitration
decision that [he] had saved on a flash drive” is true. Mr. Nelson testified at his deposition that
he in fact saved the decision to a flash drive. See Nelson Depo. at 111:17-22. Plaintiff has
presented no evidence that this is not true.
Tenth, Defendants argue that the statement that Mr. Nelson had “forwarded a copy of [the
arbitration] decision to Trustee Octavia Hall and NVP Bunn” is true. Mr. Nelson testified at his
deposition that he did so. See Nelson Depo. at 112:9-12. Plaintiff has presented no evidence that
this is not true.
16
Eleventh, Defendants argue that Mr. Nelson’s statement that “[m]embers further told
[him] that Duane Wood and Carroll Wallace primary goal was to raid the bank account of local
2798 because they knew local 2798 had a lot of money” was true. Mr. Nelson testified that this
was the case at his deposition. See Nelson Depo. at 112:16-113:5. Plaintiff has presented no
evidence that this is false. In response to an interrogatory, Plaintiff indicated his belief that it “is
unreasonable to believe” members would have reported this to Mr. Nelson, Defs.’ Mot., Ex. 8,
but this subjective belief is not sufficient to create a genuine dispute of fact that could prevent
summary judgment.
Finally, Defendants argue that the statements in the subject line and body of the e-mail
that refer to Plaintiff and his associates as “gang members” and a “gang of crooks,” who will not
receive “early Christmas bonus[es]” because “they have proven that they can’t be trusted with
the check book or credit card,” are true, substantially true or, at most, protected hyperbole. The
Court agrees. As an initial matter, it is not clear how the assertion that Plaintiff would not be
given an “early Christmas bonus” could be proven true or false. Plaintiff certainly has not
presented any evidence that this was false.
The reference to Plaintiff being a member of a gang of crooks who cannot be trusted,
Defendants argue, is true because Plaintiff was found by an arbitrator, as discussed above, to
have made improper withdrawals of cash from union bank accounts and was accordingly banned
from the union and ordered to pay restitution. See Defs.’ Mot., Ex. 3 at 0018, 23, 24.
Defendants also argue that, to the extent these statements impute criminality to Plaintiff, they are
accurate because Plaintiff had been convicted of a crime and spent time in jail in 2011. See
Nelson Depo. at 113:18-22; Defs.’ Mot., Ex. 3, at 0001-2 (Plaintiff’s conviction); Wood Depo. at
91-92 (admitting that he had spent time in jail, pled guilty to a crime and was on probation for a
17
year). In addition, Defendants have presented evidence that another AFGE officer who had
worked alongside Plaintiff—who Nelson was referencing in his e-mail—had recently pled guilty
to theft and embezzlement. See Defs.’ Mot., Exs. 4, 5. This evidence provides a factual basis for
Mr. Nelson’s statements, and Plaintiff has not presented evidence rebutting these facts. 7
At most, the Court concludes that Mr. Nelson’s use of the words “gang member” and
“crook” to describe Plaintiff was non-actionable hyperbole. “Whether a defamatory statement of
opinion is actionable often depends on the context of the statement in question.” Competitive
Enter. Inst. v. Mann, 150 A.3d 1213, 1241 (D.C. 2016). “Rhetorical hyperbole,” which would
not reasonably be understood in context as being fully and literally true, is not actionable. Id.
Viewed in context, Mr. Nelson’s words would be understood as referring to the financial
impropriety and criminal history discussed above—not to mean that Plaintiff was literally a
“gang member.” See Old Dominion Branch No. 496, Nat. Ass’n of Letter Carriers, AFL-CIO v.
Austin, 418 U.S. 264, 284 (1974) (holding that words such as “traitor” or “fascist” “used . . . in a
loose, figurative sense to demonstrate the union’s strong disagreement with the views of those
workers who oppose unionization” was not actionable as defamation).
In sum, Plaintiff has not identified any genuine disputes of fact with respect to whether or
not Mr. Nelson’s statements were false. Defendants have presented evidence that all of those
statements were true or at least substantially true. Because falsity is a required element of
Plaintiff’s defamation claim, Plaintiff cannot succeed. Defendants are entitled to judgment as a
matter of law.
7
Plaintiff states that he “was never involved nor a party to any Federal case against Ms. Correa.”
See Pl.’s Resp. at 9. Plaintiff’s involvement, or lack thereof, with the criminal action brought
against Ms. Correa is irrelevant to whether the existence of that action rendered Mr. Nelson’s
statement accurate.
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IV. CONCLUSION
For the reasons set forth above, the Court will GRANT Defendants’ Motion for Summary
Judgment. There are no genuine disputes of material fact with respect to the falsity of any
statement in Mr. Nelson’s e-mail, nor with respect to the applicability of qualified privilege to
the contents of that e-mail, and Defendants are entitled to judgment as a matter of law. This case
is DISMISSED. An appropriate Order accompanies this Memorandum Opinion. 8
Dated: June 22, 2018
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
8
Plaintiff’s Response to Defendants’ Motion for Summary Judgment states that “Plaintiff
expressly incorporates by reference his own Motion for Summary Judgment and exhibits
thereto.” Pl.’s Resp. at 1. To the extent this statement is meant to signify that Plaintiff intends to
move for summary judgment, that motion is DENIED for all of the reasons described in this
Memorandum Opinion.
19