Opinion
CV 03-1719-HU.
August 11, 2004
Linda Miller, Warrenton, Oregon, for Plaintiff Pro Se
Richard C. Hunt, Allyson S. Krueger, BARRAN LIEBMAN LLP, Portland, Oregon, Attorneys for Defendant.
OPINION AND ORDER
The matters before the court are defendant's motion for summary judgment (#18) and defendant's motion to strike (#27).
Plaintiff Linda Miller brings this employment discrimination action against defendant Clatsop Care Center Health District. Plaintiff alleges the following claims for relief: 1) age discrimination, 2) invasion of privacy, 3) slander, and 4) slander per se. Defendant moves the court for an order granting summary judgment against plaintiff's complaint in its entirety. Plaintiff opposes summary judgment. Both parties have consented to allow a Magistrate Judge to enter final orders and judgment in accordance with 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure.
FACTS
Plaintiff was born in 1950 and has been in the nursing profession for approximately thirty years. Plaintiff holds an Associates Degree in Nursing from Seattle Community College.
Plaintiff was employed by defendant Clatsop Care Center Health District in Astoria, Oregon from 1990 until 2003. In approximately February of 1999, plaintiff assumed a position at Clatsop Care Center, an intermediate and skilled care facility, in which she split her time between Charge Nurse and Registered Nurse Care Manager (RNCM) duties. Charge Nurse duties included patient assessments, administering medications and overseeing the duties of the certified medical aides and certified nursing assistants. RNCM duties included patient assessment, preparing care plans and overseeing the work of other staff. Both positions involve a certain amount of direct patient care.
In September of 2000, plaintiff's performance was evaluated by her supervisor, Melodee Wesley, as generally meeting expectations with areas needing improvement. On September 11, 2000, Wesley wrote in the evaluation:
Linda had some attendance problem due to personal issues during this past year, however, this has improved dramatically over the past couple months. Linda is always willing to do whatever is asked of her and truly cares about doing the best job possible. Linda performs accurate timely assessments and care plans. I would like her to continue to work on being aware of resident changes on a daily basis. I would also like her to monitor nursing staff (CNAS, nurses) to ensure that changes to residents plan of care is communicated that the changes are being done on a consistent basis. Linda is usually able to maintain a positive attitude. I also appreciate Linda's nursing knowledge and "hands on" experience.
Exhibit A to Declaration of Allyson Krueger, pp. 33-34. For a short period of time prior to the September, 2000 evaluation, plaintiff had been reassigned to working "on the floor" because of Wesley's concerns about her attendance. Id. at 7; Deposition of Plaintiff, p. 37.
In March of 2002, Wesley evaluated plaintiff's performance as generally exceeding standards with areas needing improvement. On March 1, 2002, Wesley wrote in the evaluation:
Linda works as both charge nurse RCM, she is flexible with job duties as well as scheduling. Linda has good clinical skills (i.e.) IV's, blood draws and has many years of long term care experience. I would like to see Linda structure her time more efficiently on days scheduled for RCM work which would increase the quality of work produced on those days.
Exhibit A to Declaration of Allyson Krueger, p. 36.
In May of 2002, defendant's management team made the decision to offer plaintiff a fulltime RNCM position at Clatsop Bridges, an extended care facility. The management team consisted of 1) Anita Schacher, CEO of Clatsop Care Center Health District; 2) Melodee Wesley, Director of Nursing at Clatsop Care, an intermediate and skilled care facility; 3) Roxanne Welch, R.N., Director of Nursing at Clatsop Bridges; and 4) Allison Sansom, Administrator of Clatsop Village, an assisted living facility. In her new position, plaintiff reported directly to Roxanne Welch. Welch reported to Anita Schacher.
One of plaintiff's primary duties in her new position was the completion of assessments on the residents. Timely completion of the assessments was important because Medicare would not reimburse for any services unless the facility has completed the required assessment. Initially, Welch reported to Schacher that plaintiff was bringing the facility into compliance with requirements for residents assessments, care plans, and related documentation. In July of 2002, Welch completed a performance evaluation giving plaintiff overall ratings of very good. On July 16, 2002, Welch wrote: "Linda jumped right in and took charge of the RCM position here." Id. at 38.
At the end of January, 2003, Welch advised plaintiff that she was being reassigned to the night shift Charge Nurse position with no change in pay or benefits. Plaintiff did not respond to Welch and went immediately to see Schacher. During the meeting with Schacher, plaintiff told Schacher that she had done a good job and had never received written or verbal criticism of her work. Plaintiff testified at her deposition that Schacher "said, `If the president doesn't want the vice president, then the vice president needs to leave.'" Id. at 14. Plaintiff told Schacher that she would not work nights and would not accept the Charge Nurse position. Plaintiff testified at her deposition that the decision to transfer her to the Charge Nurse position was initiated by Welch and okayed by Schacher. Plaintiff testified that she did not believe that Schacher was discriminating against her on the basis of her age. Id.
Schacher states in her declaration:
7. During Plaintiff's employment as an RNCM at Clatsop Care, Wesley reported to the management team that Plaintiff had attendance problems and that she was not following through on completion of care plans and monitoring change of condition.
8. In May 2002, CCCHD's management team, consisting of myself, Wesley, Welch and Sansom, made the decision to offer the Clatsop Bridges fulltime RNCM position to Plaintiff. I was born in 1947 and I was the one who extended the offer.
9. Initially, Welch reported to me that Plaintiff was bringing the facility into compliance with requirements for resident assessments, care plans and MDS documentation and all residents were entered into the computer system.
10. Timely completion of the MDS assessment is also important because Medicare will not reimburse for any services unless the facility has completed the assessment as required.
11. However, as time progressed, despite a low patient census, Welch shared with the management team that Plaintiff was not getting the MDS assessments done in a timely manner and that she was arriving for and leaving work at odd hours. Welch also commented that she did not feel that she and Plaintiff were working effectively as a team. Welch agreed to address her concerns with Plaintiff.
12. I noted that these performance deficiencies were similar to the ones Wesley had identified when Plaintiff worked at Clatsop Care.
13. Several weeks later, Welch reported that Plaintiff's deficiencies persisted. The management team agreed that reassigning Plaintiff to a Charge Nurse position and trying another employee in the RNCM position made sense. The only position available was on the night shift.
14. After Plaintiff was reassigned and rejected the Charge Nurse position, for approximately the next month or two, the RNCM position was filled by Kristi Lewis, a nurse who had completed a BSN degree and had some exposure to the RNCM duties. At the time she was placed in the RNCM position, Lewis was 24 years of age. Lewis was originally hired to work at Clatsop Bridges in July 2002.
15. After Lewis resigned from CCCHD, Welch performed the RNCM duties until January 2004 when she resigned her employment.
Declaration of Anita Schacher, pp. 2-3.
Plaintiff states in her declaration:
7. There were two full time R.N.C.M.'s prior to my starting at Clatsop Care Bridges with no changes in beds available or significant changes in patient census. . . . Roxanne Welch, R.N., told me she was hired at Clatsop Care Bridges as D.N.S. R.C.M. She said it was very difficult for her to do both and she asked me to help her with R.N.C.M. duties. Roxanne and I agreed that Roxanne would help me with some of the M.D.S. assessments. There was a lot of missing documentation when I took the job. All of the care plans needed to be revised and entered into Clatsop Care Bridges computer program. I accomplished putting all of the care plans in the computer program. The revised care plans were more detailed, neater in appearance, and easier to read. I worked hard and was proud of my work. The following statement in #11 of Anita Schacher Declaration is untrue. It states, "Plaintiff was not getting M.D.S. assessments done in timely manner and that she was arriving for and leaving work at odd hours." I informed Anita Schacher on the day that I was dismissed that all of M.D.S. assessments care plans, and other documentations were complete. I told her to let me know if there was any incomplete documentation that I was not aware of and I would be glad to complete it. Anita never got back to me. The statement that I came to and left work at odd hours is a lie. My schedule was 1000 to 1830. Roxanne preferred for me to work these hours so I would be available to help the evening charge nurse. The evening charge nurse . . . told me she was thankful because I was helpful. I never received any verbal or written criticism of the above because it never happened.
Declaration of Linda Miller, p. 2.
Plaintiff further states in her declaration:
11. I was replaced by a 24-year-old R.N. who only had several months of being a nurse. . . . One of the qualification requirements for R.N.C.M. position at Clatsop Care Center Health District per R.N.C.M. job description reads, "At least one year experience in Long Term Care setting." . . .
12. I truly believe that my dismissal as R.N.C.M. was related to my age. Jokes were made about my age. My boss, Roxanne Welch, R.N., shared the same office with me. It makes no sense to me why I was replaced by an inexperienced much younger nurse except for the presumption of Roxanne preferring to work with a younger person. I feel Roxanne is happier when she is with younger people. Roxanne shared with me on several occasions that she is married to a much younger man. She makes these comments with smiles indicating being with a younger man makes her happy. Kristy and Roxanne have similar life styles. They both recently married and their weddings were on a beach. There is no documentation by Roxanne supporting or justifying my dismissal.Id.
APPLICABLE STANDARD
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis of its motion and identifying those portions of "`the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c))."If the moving party meets its initial burden of showing `the absence of a material and triable issue of fact,' `the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense.'" Intel Corp. v. Hartford Accident Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23. The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). All reasonable doubts as to the existence of a genuine issue of fact must be resolved against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). The court should view inferences drawn from the facts in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31.
If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support this claim than would otherwise be necessary. Id.; Hayes v. Palm Seedlings Partners-A, 916 F.2d 528, 534 (9th Cir. 1990); California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).
DISCUSSION
1. Age Discrimination
Defendant contends that it is entitled to summary judgment on the first claim for relief for age discrimination because plaintiff has no evidence of age discrimination other than her own speculation concerning her supervisor's motives. Defendant contends that plaintiff was reassigned to the Charge Nurse position on the night shift because she was not adequately performing the duties of the RNCM.
Plaintiff contends that she was removed from her position as RCM when she was 52 years old, and that she was replaced by a nurse who was 24 years old and a registered nurse for less than one year. Plaintiff contends that she had no knowledge that her performance was substandard as alleged by defendant, and that the real reason she was demoted was that her supervisor, Roxanne Welch, preferred working with younger individuals.
In order to establish a prima facie case of discrimination, plaintiff must prove that 1) she is a member of a protected class (over age 40); 2) she was performing her job in a satisfactory manner; 3) she suffered an adverse employment action; and 4) she was treated differently than other persons outside her protected class. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. Sischo-Nownejad v. Merced Comm. College Dist., 934 F.2d 1104, 1109 (9th Cir. 1991). Once the employer meets this burden, the presumption of unlawful discrimination "simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). Plaintiff then has the burden of proving that this legitimate, non-discriminatory reason was a pretext for discrimination; that is, the stated reason is false, or that the true reason was a discriminatory one. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996). In order to avoid summary judgment, plaintiff "`must do more than establish a prima facie case and deny the credibility of the [defendant's] witnesses.'" Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994) (quoting Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir. 1986)). Plaintiff must produce "`specific, substantial evidence of pretext.'" Id. (quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983)).
Plaintiff presents evidence that she was given the position of RNCM at Clatsop Bridges by defendant's management team; that she perceived her performance to be adequate; that she was reassigned after eight months in the position by that same management team; and that the position was filled for the next month or two by a nurse who was 24 years of age with less than one year of nursing experience. The court accepts these facts as adequate to present a prima facie case.
Defendant presents evidence that the same management team lead by Schacher that placed plaintiff in the RNCM position decided eight months later to reassign her because of performance deficiencies; that plaintiff was offered a position as Charge Nurse on the night shift at the same rate of pay; and that plaintiff did not accept the reassignment. Defendant presents evidence that the reassignment was made for a legitimate, non-discriminatory reason.
Plaintiff asserts that defendant's reliance on her performance deficiencies is a pretext to cover up the real reason for her reassignment which is that Welch preferred to work with a younger individual. Plaintiff relies on evidence that co-workers made general age-related remarks; that she had received no forewarning that her performance was not satisfactory; and that she believed that Welch preferred to work with younger individuals.
Defendant contends that plaintiff has failed to offer substantial and specific evidence to prove that the non-discriminatory reason for her reassignment was pretext for age discrimination. Defendant contends that plaintiff has not presented evidence sufficient to overcome the strong inference that there was no discriminatory motive which arose when the same individuals who promoted plaintiff to RNCM decided to reassign her eight months later because she was not adequately performing the job.
In Nidds, the United States Court of Appeals for the Ninth Circuit explained that "[t]o satisfy that burden [of proving pretext], and survive summary judgment, Nidds must produce enough evidence to allow a reasonable factfinder to conclude either: (a) that the alleged reason for Nidds' discharge was false, or (b) that the true reason for his discharge was a discriminatory one." 113 F.3d at 918. In addition, the Ninth Circuit Court of Appeals in Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270-71 (9th Cir. 1996), stated: "We . . . hold that where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive." In Bradley, the plaintiff was terminated by the same person who originally made the decision to hire her less than a year earlier. The plaintiff in Bradley alleged that her supervisor's real reason for terminating her was sex discrimination because he wanted to give her position to a male. The Court of Appeals stated:
. . . Sasmor, the person who terminated Bradley, is the same person who originally made the decision to hire her less than a year earlier. In this context, Bradley's allegation that her supervisor wanted a male in the position is at best suspicious. If Sasmor had preferred to place a man in the position, we can see no reason why she would have hired a woman only a year earlier. As the Fourth Circuit has observed:
One is quickly drawn to the realization that claims that employer animus exists in termination but not in hiring seem irrational. From the standpoint of the putative discriminator, it hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological costs of associating with them), only to fire them once they are on the job.Id. at 270.
Plaintiff claims that the same managers who promoted her to the RNCM position at Clatsop Bridges demoted her eight months later because of her age. Plaintiff testified in her deposition that she did not believe Schacher acted with a motive to discriminate against her because of her age, but believed that her direct supervisor, Welch, preferred to work with a younger individual. Since the employment decision to reassign plaintiff was made by the same managers who promoted her to the position eight months earlier, a strong inference arises from these facts that there was no discriminatory motive. See id. at 270-71.
Plaintiff testified at her deposition that co-workers made age-related comments to her. Plaintiff testified that Debra Martin, a rehabilitation therapist, referred to her gray hair roots and said, "You look like a skunk." Deposition of Plaintiff, p. 71. Plaintiff testified that on another occasion, Martin observed her removing medication from her purse and said, "What are you taking there, Prozac?" Id. at 71-72. In addition, plaintiff testified that on another occasion, Martin said, "Who do you think you are, an equal opportunity employee?" Id. at 73. Plaintiff testified that in response to a statement she made that there was no certification process when she began working as a nurses aide, another employee named Trent said, "Linda, when you got into nursing, they were using whiskey for anesthesia. . . ." Id. at 75. Plaintiff testified that everyone laughed in response to this comment, including her. Id.
Plaintiff also testified at her deposition that a lot of employees did not like Martin, and that Martin made comments to other employees that bothered them; that she knew she could complain if she felt harassed under defendant's policy against harassment and discrimination and did not complain; and that none of the co-workers who made these comments had any involvement in decisions concerning her employment. The Ninth Circuit Court of Appeals has held in a number of cases that general age-related statements not tied to any specific employment decisions are not evidence of age discrimination. See Nidds, 113 F.3d at 918-19; Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993); Merrick v. Farmers Ins. Group, 892 F.2d 1434-35 (9th Cir. 1990). In this case, the comments relied upon are ambiguous, stray remarks which vaguely reference age. The comments were not made by any employee involved in the complained of employment action. There is no evidence that plaintiff complained to defendant about the comments or perceived the comments as harassment or discrimination. Plaintiff cannot establish pretext by reference to these isolated comments by co-workers not involved in her employment decisions.
Plaintiff claims that she had been performing her job adequately and had received no feedback indicating otherwise. However, an employee's subjective personal judgments of her competence alone do not raise a genuine issue of material fact. Bradley, 104 F.3d at 270; Schuler, 793 F.2d at 1011. These comments by plaintiff, even when coupled with her performance reviews, do not amount to specific and substantial evidence of pretext.
Finally, plaintiff testified that she believed Welch preferred working with younger individuals because Welch told plaintiff it made her very happy to be married to a younger man. Welch's preference for a younger husband has nothing to do with her preferences at work. Plaintiff also testified that she believed Welch preferred working with Lewis because they had similar lifestyles, for example, they were each recently married on the beach. Deposition of Plaintiff, p. 78. Plaintiff testified at her deposition:
Q. Was there any other reason that you believed that she preferred to work with Christy Lewis over you?
A. She liked Christy better than me. I mean, she must have liked her personality more than my personality.
Q. Okay. And why — I mean, why do you think her preference for Christy was based on Christy's age?
A. Because she just seemed happier around her. Christy was young. Christy had just gotten married. Roxanne hadn't gotten married that long ago. They shared a lot about their lifestyle.
Q. They had a lot in common?
A. Right.
Id. at 79-80.
Plaintiff's subjective beliefs that Welch liked working with Lewis better than working with her are not adequate to overcome the strong inference of no discriminatory motive that arises from the fact that Welch was part of the management team that promoted her eight months earlier, and the complete lack of evidence that the other three members of the management team had any discriminatory motive. Taking all of the evidence presented in the light most favorable to plaintiff, plaintiff has failed to come forward with any direct evidence of discrimination, and likewise has not produced specific, substantial circumstantial evidence to allow a reasonable factfinder to conclude that the alleged reason for the management team reassigning plaintiff was false, or that the true reason for reassigning plaintiff was a discriminatory one.
Defendant is entitled to summary judgment on plaintiff's claim for age discrimination.
2. Invasion of Privacy
Plaintiff asserts a claim for invasion of privacy based upon a statement alleged to have been made by Welch to Kevin Sheehan, who was employed as a Licensed Practical Nurse at Clatsop Bridges. Plaintiff testified at her deposition that Welch told Sheehan that plaintiff was "going to be dismissed because I wasn't — I was doing my job poorly. . . ." Deposition of Plaintiff, p. 86. In addition, plaintiff testified that Connie Lewis, a Certified Nurses Assistant who worked at Clatsop Care, had "heard rumors about my work performance. . . ." Id. at 87-89.
Defendant contends that it is entitled to summary judgment on this claim because any such statements alleged to place plaintiff in a false light were not publicized. Plaintiff contends that her claim of invasion of privacy should not be dismissed because defendant had no control as to how the two employees would disseminate the information about her job performance.
The Oregon courts refer to the definition of the tort of invasion of privacy by "false light" offered by the Restatement (Second) of Torts:
"One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
"(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
"(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed."Marleau v. Truck Ins. Exch., 333 Or. 82, 92, 37 P.3d 148, 154 (2001) (quoting Restatement § 625E (1977). "Invasion of privacy by `false light' requires that the matter be both false (or that it create a false impression) and publicized." Id. at 92-93 (emphasis in original). The publicity element requires that "such a disclosure . . . be public in the sense of communication either to the public generally or to a large number of persons as distinguished from one individual or a few." Tollefson v. Price, 247 Or. 398, 402, 430 P.2d 990, 992 (1967).
Taking the facts in the light most favorable to plaintiff, the evidence of statements made to Sheehan and heard by Lewis does not meet the requirement that the alleged false information be disclosed to the public generally or to a large number of persons as distinguished from a few.
Defendant is entitled to summary judgment on plaintiff's claim for invasion of privacy.
3. Slander
Plaintiff asserts a claim for slander and slander per se based upon statements alleged to have been made by Welch to Sheehan that plaintiff was not doing her job well and had a "drinking problem." Deposition of Plaintiff, p. 91. Plaintiff submits the declaration of Sheehan, which states:
15. Around January 23, 2003 Roxane Welch met with me on the night shift while I was on duty and informed me she was issuing a written reprimand [to me] for the . . . medication error.
16. Ms. Welch told me that she had another unpleasant task to perform and that was informing Ms. Miller of her demotion to the night shift charge position which I was vacating as I had accepted a position with the Tongue Point Job Corp, (I resigned from this position after one day and resumed my employment with the health district). Ms. Welch stated that she didn't know how Ms. Miller would do on nights with her diabetes and problem with alcohol.
Declaration of Kevin Sheehan, p. 2.
Defendant contends that it is entitled to summary judgment on these claims because any purportedly false statements made by Welch were subject to the qualified privilege of an employer to make defamatory statements concerning an employee's job performance where the statements are on a subject of mutual concern to defendant and the person to whom the statements were made. Plaintiff contends that defendant had no qualified privilege because the statements were not made to protect defendant's interests, and the statements were not of concern to the person to whom the statements were made.
A defamatory statement is one that subjects a person to "hatred, contempt or ridicule;" tends to diminish the "respect, goodwill or confidence" in which the person is held; or "excite[s] adverse, derogatory or unpleasant feelings or opinions." Greenfield v. Ollikala, 85 Or. App. 357, 360, 736 P.2d 599 (1987). An employer has a qualified privilege to make a defamatory statement if: "(1) it was made to protect the interests of defendants; (2) it was made to protect the interests of plaintiff's employer; or (3) it was on a subject of mutual concern to defendants and the persons to whom the statement was made." Wattenburg v. United Med. Labs., Inc., 269 Or. 377, 380, 525 P.2d 113, 114 (1974). This privilege may extend to statements made by the employer to an employee's co-workers if the statement is made to protect employee morale. Bickford v. Tektronix, Inc., 116 Or. App. 547, 551, 842 P.2d 432 (1992). Once the employer properly raises the privilege, plaintiff has the burden of proving that it has been abused. Walsh v. Consolidated Freightways, Inc., 278 Or. 347, 356, 563 P.2d 1205 (1977). The privilege may be lost if the speaker does not believe the statement is true or has some kind of improper motive. Lund v. Arbonne Int'l, Inc., 132 Or. App. 87, 96, 887 P.2d 817 (1994).
Defendant in this case has not come forward with any facts to show that the alleged statement by Welch to Sheehan was made to protect the interests of defendant or that the statement was a subject of mutual concern to defendant and the person to whom the statement was made. Nothing in the context of the statement, given Sheehan's decision to work elsewhere, suggests an employee morale motivation for the statement. There are no facts presented by defendant in this record to support a qualified privilege.
Defendant's motion for summary judgment on plaintiff's claim for slander and slander per se is denied.
Defendant's Motion to Strike (#27)
Defendant moves the court to strike certain portions of the declarations of plaintiff and Sheehan on the grounds that statements made are irrelevant or hearsay or inadmissible opinion testimony. Defendant correctly points out that plaintiff has offered statements which violate the Rules of Evidence. However, the statements which are the subject of defendant's motion are not material to the ruling of the court. Therefore, the court finds that defendant's motion to strike is moot.
CONCLUSION
Defendant's motion for summary judgment (#18) is granted as to plaintiff's first claim for relief (age discrimination) and second claim for relief (invasion of privacy) and denied as to plaintiff's third claim for relief (slander) and fourth claim for relief (slander per se). Defendant's motion to strike (#27) is moot.
IT IS SO ORDERED.