If a publication is not defamatory per se, a plaintiff may still succeed on a defamation claim per quod, by “specifically alleg[ing] the facts and innuendo which make the words defamatory, as well as pleading special damages from such defamation.” Carlson v. WPLG/TV-10, Post-Newsweek Stations of Fla., 956 F.Supp. 994, 1006 (S.D. Fla. 1996).
These statements are not blatant remarks "whose intent could be nothing other than to discriminate on the basis of age." Carlson v. WPLG/TV-10, Post-Newsweek Stations of Fla., 956 F. Supp. 994, 1000 (S.D. Fla. 1996). They can, at best, be characterized as circumstantial evidence of discrimination.
When context is considered and ‘extrinsic facts and innuendo are needed to prove the defamatory nature of the words,’ the statements are not defamatory per se. " Id. (quoting Carlson v. WPLG/TV10, Post–Newsweek Stations of Fla., 956 F. Supp. 994, 1006 (S.D. Fla. 1996) ). Plaintiff's claim fails for similar reasons.
(Cabaret Resp. 5). To state a claim for defamation in Florida, Ms. Underwood would need to show Cabaret (1) made a statement; (2) that was false; (3) to a third party; and (4) Ms. Underwood suffered damages as a result. See Carlson v. WPLG/TV-10, Post-Newsweek Stations of Fla., 956 F. Supp. 994, 1006 (S.D. Fla. 1996) (citation omitted). As Cabaret correctly recognizes, a defamatory statement may be made by implication.
Scobie v. Taylor, No. 13-60457-Civ, 2013 WL 3776270, at *4 (S.D. Fla. July 17, 2013) (Scola, J.); see also Carlson v. WPLG/TV-10, Post-Newsweek Stations of Fla., 956 F. Supp. 994, 1006 (S.D. Fla. 1996) (Ungaro, J.). If Paulson wishes to attempt to raise defamation per quod claims, assuming she can allege the requisite facts and damages in support, the Court will allow her to amend her complaint.
The FCRA prohibits age discrimination in the work place and follows federal law, which prohibits age discrimination through the ADEA. City of Hollywood v. Hogan, 986 So.2d 634, 641 (Fla. 4th DCA 2008) (M.D. Fla. Jan. 24, 2014) (citing Fla. Stat. § 760.10(1)(a)). Thus, FCRA and ADEA are subject to the same analysis. Carlson v. WPLG/TV-10, 956 F. Supp. 994, 1005 (S.D. Fla. 1996) (holding courts analyze claims pursuant to the Florida Civil Rights Act of 1992 (FCRA) in the same manner as claims under the ADEA). Both federal and state law hold that a prima facie case can be established under the FCRA in the same manner as the ADEA. City of Hollywood, 986 So.2d 634.
Without more, the publication lacks sufficient detail for a reader to conclude the crime involved is a felony. See Scobie v. Taylor, No. 13–60457–CIV, 2013 WL 3776270, at *4 (S.D.Fla. July 17, 2013) (“When context is considered and ‘extrinsic facts and innuendo are needed to prove the defamatory nature of the words,’ the statements are not defamatory per se. ” (quoting Carlson v. WPLG/TV–10, Post–Newsweek Stations of Fla., 956 F.Supp. 994, 1006 (S.D.Fla.1996) )). Furthermore, because it is the purportedly defamatory statement that must impute the criminal offense amounting to a felony, whether the underlying facts actually support a felony offense is not relevant. The statement does not qualify as defamation per se under the first example. Klayman contends the defamatory statement is also defamation per se under the second ground, as the statement harmed his reputation as well as his business's reputation as a government ethics watchdog.
The response indicated Defendants intended to bring the motion for summary judgment pursuant to the Florida Civil Rights Act, Chapter 760, Florida Statutes ("FCRA") as well. Defendants further provided a written argument with appropriate case law contending that the summary judgment should be granted in relation to the FCRA claims. For example, Defendants rely on Carlson v. WPLG/TV-10, City of Hollywood v. Hogan, and Florida Dep't of Comm. Affairs v. Bryant to assert that courts analyze claims pursuant to the FCRA and the ADEA identically. Carlson v. WPLG/TV-10, 956 F.Supp. 994, 1005 (S.D. Fla. 1996) ("Both federal and state law hold that a prima facie case can be established under the Florida Civil Rights Act of 1992 ("FCRA") in the same manner as under the ADEA.") (citations omitted); City of Hollywood v. Hogan, 986 So.2d 634, 641 (Fla. 4th DCA 2008) ("The Florida Civil Rights Act of 1992 (FCRA) prohibits age discrimination in the workplace. See § 760.10(1)(a), Fla. Stat. (2007). It follows federal law, which prohibits age discrimination through the Age Discrimination in Employment Act (ADEA). 29 U.S.C. § 623. Federal case law interpreting Title VII and the ADEA applies to cases arising under the FCRA."); Florida Dep't of Com. Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991). Having found that Plaintiff's ADEA and FCRA claims are based upon the same operative facts and governed by the same standard of proof, the Court finds summary judgment is due to be granted with relation to the FCRA claims based upon the same analysis under the ADEA. (See Doc. #47).
29 C.F.R. 552.102(b). When an employment contract for a definite period exists and an employee continues to work under the contract after its expiration, the presumption in the law is that the contract is renewed and employment continued on the terms of the original contract. Carlson v. WPLG/TV–10, Post–Newsweek Stations of Florida, 956 F.Supp. 994, 1005 (S.D.Fla.1996); Rothman v. Gold Master Corp., 287 So.2d 735, 736 (Fla.Dist.Ct.App.1974); Sultan v. Jade Winds Const. Corp., 277 So.2d 574, 576 (Fla.Dist.Ct.App.1973); see also Carnival Corp. v. U.S. Bank Nat. Ass'n. ND, 2009 WL 3584935 (S.D.Fla. Oct. 27, 2009) (finding that the parties established an implied-in-fact contract by continuing to operate under the agreement).
When context is considered and "extrinsic facts and innuendo are needed to prove the defamatory nature of the words," the statements are not defamatory per se. See Carlson v. WPLG/TV-10, Post-Newsweek Stations of Fla., 956 F. Supp. 994, 1006 (S.D. Fla. 1996) (Ungara, J.). If Scobie wishes to attempt to raise defamation per quod claims, assuming he can allege the requisite facts and damages in support, the Court will allow him to amend.