essay

MGT 403 – Fall 2018 Prof. Salzman

First Written Assignment – Legal Environment & Torts

This assignment requires you to answer a number of questions regarding the court’s opinion in a case (that begins on page 6) (as well as with respect to some variations as described in the questions below) using the knowledge you have gained (and are gaining) about the legal environment and tort law. You do not need to consult any outside sources (i.e., other than the case, your course textbook and your class notes) to complete the assignment.

Your answers should be written in sentences and in your own words. Some of the answers will be relatively short (such as identifying the parties, the court, reporters, timing, or examples of sources of law). Other questions ask for more information (such as descriptions or explanations, including those questions that ask “how” or “why”), and will require longer answers. Do not just rely on the facts for explaining the reasons for your longer answers, as some analysis of the law (i.e., legal reasoning) is also required. You should also refrain from solely relying on quotes from the case to answer the questions asked. Where applicable in your answers, you should use the terms, phrases and concepts used in the textbook and in class.

The assignment must be typed, double spaced, in a 12 point font, and use approximately 1 inch margins. Your answers should be between 6 and 10 pages (not counting a cover page if you choose to use one) in length.

You should refrain from using “etc.” and any abbreviation unless you have clearly defined it in your answers. Proofread your answers – I do take off for excessive typographical and/or grammatical errors, as well as for failing to follow these Instructions.

Number your answers to correspond with the numbers of the Questions below.

Please be sure to include on your assignment (1) your names and (2) the class time (11:00 a.m. or 3:30 p.m.) for which you are registered for the course.

Remember to timely submit your assignment both (1) in person or via email and (2) via SafeAssign 2 on UB Learns.

( 2 )

Questions (Note - The points listed by each question are tentative and may be adjusted. However, they do indicate (at least roughly) the relative weight allocated to each question.)

1. (a) Who is the plaintiff in the case? (0.5 points)

(b) Who is the defendant in the case? (0.5 points)

(c) What occurred that resulted in the plaintiff suing the defendant? (In other words, briefly summarize the facts in your own words.) (2.5 points)

2. (a) (i) In what court did the plaintiff initiate the lawsuit? (ii) Is this a state court or a federal court? (1 point)

(b) What is the full name of the court that issued the attached opinion in the case? Be sure to indicate whether this is (i) a state or a federal court and (ii) a trial or an appellate court. (1 point)

(c) What is the name of the reporter in which decisions of the court that issued the attached opinion are reported? How is that reporter abbreviated? (0.5 points)

(d) On what basis did the court have subject matter jurisdiction over the case? Quote a phrase or sentence in the court decision that supports your answer to this question and indicate on what page of the assignment the quoted language appears. (1 point)

(e) Assuming that the losing party wants to appeal the attached court decision, what is the full name of the court to which that party should appeal? Be specific (i.e., if there are several courts that have the same general name your answer should include the name or designation that distinguishes the court from others of its same type). Be sure to also indicate whether this is (i) a state or a federal court and (ii) a trial or an appellate court.

(1 point)

(f) What is the name of the reporter in which decisions of the court referred to in Question 2(e) reported? How is that reporter abbreviated? (0.5 points)

3. The attached court decision cites a number of different sources of law. Provide an example (by proper citation to that source of law) from the attached court decision of each of the following sources of law (or indicate “none” if that source of law is not cited in the attached court decision):

(a) A federal statute (1 point)

(b) A state statute (1 point)

(c) A decision of the U.S. Supreme Court (1 point)

(d) A decision of a federal appellate court other than the U.S. Supreme Court (1 point)

(e) A decision of a federal trial court (1 point)

(f) A decision of a state court (can be a state trial court or a state appellate court) (1 point)

4. (a) What happened procedurally in the lawsuit before the court issued the attached opinion? (1.5 points)

(b) What procedural question(s) or issue(s) did the court have to decide? (1 points)

(c) What did the court conclude with respect to the procedural question(s) or issue(s) identified in 4(b) and why? (1 points)

5. (a) What torts did the plaintiff allege that the defendant had committed? (1 point)

(b) For each of the torts alleged in the complaint, what did the court conclude and why? (4 points)

6. If you were the plaintiff’s attorney, what would you advise the plaintiff to do next (i.e., shortly after the attached court decision was issued)? Why? Is there anything in the court’s opinion that provides a clue or suggestion as to what the plaintiff should do next? If so, quote the applicable phrase or sentence and indicate what page of the assignment on which it appears. (2 points)

7. The opinion in the case includes a discussion of defamation under Kansas law.

How does the opinion’s description of defamation (particularly as to any relevant requirements and defenses under Kansas law) differ from how defamation was described in class (and in the textbook)? (3 points)

8. The court’s opinion in the case refers to a form of discovery that was used by the parties in the case. Identify that form of discovery and quote an applicable phrase or sentence in the court’s opinion that supports your answer and indicate the page of the assignment on which it appears. (2 points)

9. For purposes of this Question 9 and Question 10 only, assume the following additional facts (together with the facts described in the case to the extent they are consistent with these additional facts):

Shortly after Musicland terminated Etzel’s employment, Mark Johnson posted a picture of Etzel on Facebook with the following statement:

“Gotcha! I caught another embezzler who admitted to stealing more than $75,000 from Musicland. Bye bye Richard Etzel!”

Etzel filed his lawsuit against both Musicland and Mark Johnson.

How would you expect these additional facts to affect the court’s ultimate analysis of (and conclusion with respect to) the tort claims that were made in this case? Why? What, if any, further additional facts, would you want to know to help you (or the court) answer this Question 9? (3 points)

10. Based on the additional facts in Question 9, would you advise the plaintiff to sue Facebook for any of the torts alleged in the case? If so, why and for which tort(s)? If no, why not? What if any, further additional facts, would you want to know to help you answer this Question 10? (2 points)

11. For purposes of this Question 11 only, assume the following additional facts:

On August 23, 1990, Johnson first confronted Etzel in the jazz music section of the Musicland store at the West Ridge Mall and said the following to Etzel:

“You don’t know me, but I work for Musicland too and I’m here to investigate all the money you’ve stolen from the company. You need to come to the backroom RIGHT NOW MISTER ETZEL!”

When he questioned Etzel in the backroom of the Musicland store at the West Ridge Mall, Mark Johnson locked the door to the backroom and would not let Etzel leave until he agreed to “admit what [he] did” and “sign something”. Etzel told Johnson that he was feeling very dehydrated and asked for a glass of water or if he could go get a glass of water for himself. Johnson refused to give Etzel any water and would not let him leave the room until after Etzel wrote and signed the $243 check and the statement. After Etzel signed the check and statement, Johnson unlocked the door to let Etzel leave the backroom. As Etzel was leaving the backroom, he collapsed from the dehydration he had really been experiencing. Believing the Etzel was just faking his collapse, Johnson kicked Etzel in his right leg and punched him in the face, which also left Etzel with a sore right shin and a black eye.

Etzel filed his lawsuit against both Musicland and Mark Johnson.

(a) How would you expect these additional facts to affect the court’s ultimate analysis of (and conclusion with respect to) the tort claims that were made in this case? Why? What, if any, further additional facts, would you want to know to help you (or the court) answer this Question 12(a)? (2.5 points)

(b) If you represented the plaintiff, what, if any, other tort claims would you suggest that the plaintiff assert against the defendant and/or Mark Johnson? Why? What, if any, further additional facts, would you want to know to help you (or the court) answer this Question 12(b)? (2.5 points)

Following directions and lack of grammar errors and typos. (2 points)

United States District Court District of Kansas

Richard Todd ETZEL, Plaintiff, v.

The MUSICLAND GROUP, INC., Defendant.

Jan. 8, 1993

MEMORANDUM AND ORDER

CROW, District Judge.

Richard Todd Etzel filed this action against his former employer, The Musicland Group, Inc. (Musicland), for outrageous conduct during the events surrounding his termination and for defamation following his termination, in the Kansas District Court – 3rd Judicial District (Shawnee County). Musicland removed the action to this court on the basis of diversity. 28 U.S.C. § 1441. This case is now before the court upon Musicland’s motion for summary judgment. Etzel has filed a response and Musicland has filed a reply.

Having considered the briefs of counsel and the applicable law,1 the court is now prepared to rule.

Standards for Summary Judgment

Summary judgment is appropriate when the movant can demonstrate that there is no genuine issue of material fact and is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Fed.R.Civ.P. 56(c). Essentially, the inquiry is “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.” Anderson, 477 U.S. at 251–52.

An issue of fact is “genuine” if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the nonmoving party. Id. at 248. An issue of fact is “material” if proof thereof might affect the outcome of the lawsuit as assessed from the controlling substantive law. Id. at 249. Factual inferences are drawn to favor the existence of triable issues, and where reasonable minds could ultimately reach different conclusions, summary judgment is inappropriate. See Riley v. Brown & Root, Inc., 896 F.2d 474, 476–77 (10th Cir.1990).

If the moving party is able to show “an absence of evidence to support the non-moving party’s case” Celotex, 477 U.S. at 325, the burden then shifts to the nonmoving party “to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. The opposing party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts that show a genuine issue for trial remains. Anderson, 477

U.S. at 250. The nonmoving party’s response must be supported by the kinds of evidentiary materials listed in Rule 56(c). Celotex, 477 U.S. at 324; Farnsworth v. Town of Pinedale, Wyoming, 968 F.2d 1054, 1056 (10th Cir. July 7, 1992). Rule 56 does not require “the moving party to support its motion with

affidavits or other similar materials negating the opponent’s claim.” Celotex, 477 at 323.

The court notes that both parties have erroneously cited Supreme Court of Kansas cases as authority governing the appropriate standards for summary judgment. This is error. In federal court, procedural issues are governed by federal law, not state procedural law. See Erie v. Tompkins Railroad, 304 U.S. 64 (1938).

Uncontroverted Facts

Some of the facts surrounding this dispute are uncontroverted. Musicland contends that viewing the facts in the light most favorable to Etzel, it is entitled to judgment as a matter of law. Complicating the court’s review of this motion is Etzel’s failure to comply with D.Kan.Rule 206(c). In pertinent part, that rule provides:

A memorandum in opposition to a motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies, and if applicable, shall state the number of movant’s fact that is disputed.

In response to Musicland’s motion for summary judgment, the plaintiff expressly admits several of the defendant’s factual statements. However, rather than responding directly to each of the defendant’s statements of facts, the plaintiff merely lists the paragraphs which he controverts and then proceeds to list his own statements of controverted facts.

In addition, both parties have constructed some unique interpretations of the depositions. The court has read all of the deposition excerpts provided by the parties. While Etzel contends that there is evidence to support some of his contentions, some of his factual allegations are not supported by any deposition excerpt. Also, many of the excerpts cited to by the plaintiff appear to be hearsay. See Fed.R.Evid. 801(c) (“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). While some of the statements may be excluded from the definition of hearsay or fall within some exception to the hearsay rules, it should not be the court’s burden to construct the plaintiff’s arguments in proving the admissibility of the evidence he offers. The court has disregarded any statements which appear to be hearsay.

Notwithstanding Etzel’s failure to comply with D.Kan.Rule 206, the court has culled the relevant facts from both parties’ briefs and the deposition excerpts in an attempt to construct a single account of the uncontroverted facts that are supported by admissible evidence. The facts are presented in the light most favorable to Etzel.

Richard Etzel is currently a twenty-five year old male. On August 23, 1990, Etzel was involuntarily terminated from his employment by Musicland. Prior to August 23, 1990, Etzel had been employed by Musicland in various capacities, including as a store manager at the White Lakes store in Topeka, Kansas, from July 1985 until August 1990. At the time of his termination, Etzel was store manager of the Musicland store at Westridge Mall. At all times during Etzel’s employment, he was an employee at will. Etzel was never party to a written employment contract with Musicland, nor was he subject to a collective bargaining agreement.

At some point prior to Etzel’s termination, Musicland apparently became concerned about “heavy losses” in the inventory at the Musicland store at White Lakes. Specifically, the Musicland store at White Lakes lost $32,093 in merchandise in 1989 and $45,338 in merchandise in 1990. Musicland agents, apparently on several occasions during Etzel’s employment, discussed the inventory loss problem. The loss of recorded inventory, referred to as “shrinkage,” as well as decreased sales, became unacceptable to Musicland.2

On August 23, 1990, Mark Johnson, Musicland’s loss control specialist, “interrogated” Etzel concerning the inventory shrinkage. Mark Johnson is approximately six feet, one inch tall and weighs one hundred and ninety pounds. The interrogation occurred in private at the backroom of the Musicland store at the West Ridge Mall and lasted over one and one-half hours. Gene Calhoun, another Musicland employee, was present during the interview.

According to Etzel, Johnson accused Etzel of stealing from Musicland. Although Etzel was never physically abused, Johnson intimidated Etzel during the interrogation. Johnson initially suggested that Etzel write Musicland a check for $100. Etzel denied stealing $100. Johnson indicated that “we know you stole more.” Johnson suggested that Etzel “just admit it all and let’s get it over with.” During the interview, Etzel did not feel as though he was free to leave and thought that he would have been physically restrained had he tried to leave. During the interview, Etzel admitted that in 1985 or 1986, his supervisor had allowed him to take “ten 45’s,” worth approximately $20, from the Musicland store without paying for the records. Etzel understood that although employees enjoyed price discounts, it was against store policy for an employee to take any merchandise without payment.

At some point during the interview, Etzel commented that he would like to consult an attorney. At that point Johnson stated that he had a search warrant for Etzel’s house and that if Etzel chose to seek legal counsel, “it would just embarrass my family and myself and it would be all over the newspapers.”3 Etzel, who was nervous and scared, believed everything Johnson said.

Eventually, Etzel wrote a check for $243, which represented a figure chosen by Johnson. The $243 amount represented a sum chosen by Johnson after Etzel would not agree to admitting that he had stolen $100. Etzel also signed a handwritten statement. Johnson and Calhoun told Etzel that he had to sign the statement before he could leave the interview.4 In full, the statement signed by Etzel declares:

8–23–90

5:00 p.m.

I am Richard T Etzel manager of Musicland. Over 5 years [sic] period of employment I have taken about

$200 of mdse. I have given $43 of discounts to friends. I understand I can be terminated for theft. I will be $243 [sic] to the Musicland Group today. I wrote voluntory [sic] this statement.

Richard T. Etzel 5:07 p.m.

Witness: #1 M. Johnson #2

The statement was dictated by Johnson. Although Etzel was not told that his confession would result in his termination, the admission of theft essentially guaranteed that Etzel would lose his position with

Musicland. If an employee admits they are stealing from Musicland, in all cases the employee is terminated.

Musicland has a policy that prohibits an employee from divulging information pertaining to the termination of an employee. Apparently, all employment references must go through the Human Resources Department in Minneapolis. According to Etzel, the Human Resources Department would only verify salary and dates of employment.

In Etzel’s applications to employers, he did not explain the details of his termination. Etzel applied to and worked for Duncan’s Movie Magic, Inc. As instructed by Calhoun, Etzel indicated on all of his employment applications that he had left Musicland for personal reasons.

Duncan’s Movie Magic subsequently hired J.L. Grant and Associates to verify Etzel’s work record at Musicland. Etzel authorized the release of his employment records from Musicland. In pertinent part, that report states that “[s]ources confirm that Mr. RICHARD TODD ETZEL was terminated following an internal investigation by Musicland Loss Prevention Investigators from Memphis, into circumstances surrounding inventory shortages at the Westridge Mall store.” Duncan’s Movie Magic subsequently terminated Etzel’s employment. The precise manner by which J.L. Grant acquired that information is not presented in the record.

On or about October 10, 1990, Diane Olden, who pretended to be a prospective employer of Etzel, called the Westridge Musicland store. Olden talked to Tracy Banks, the manager at the Musicland store, about Etzel’s employment with Musicland. According to Olden, Banks, notwithstanding Musicland’s non- disclosure policy, stated that Etzel “was a hard working person, but sometimes he had to be motivated.” In regard to Etzel’s reason for leaving Musicland, after a “dead pause” Banks stated that there had been an inventory loss and that Etzel had something to do with that loss. Banks did not, however, use phrases like “stealing” or “embezzlement” in describing the loss of inventory.

In addition to Banks’ disclosure, Eve Glotzbach, while working for Musicland, told persons she considered Etzel’s friends of the firing because they asked, even though she knew that such disclosure was contrary to company policy. Basically because of Glotzbach’s disdain for Musicland and its treatment of Etzel and Prosser, Glotzbach indicated that she was not “going to lie.”

In addition to these specific disclosures, Etzel contends that rumors circulated throughout the Westridge Mall that he had been terminated for large scale embezzlement and conspiracy. The precise sources of those rumors is not presented on the record.

In November 1990, Etzel secured employment at the Westridge Mall at Dillard’s. Etzel worked there for approximately five months. Etzel subsequently moved to Kansas City were he has been employed in certain sales capacities at MaggieMoos, an ice cream shop, and is now currently employed at Second Star to the Right, a store which sells Disney merchandise.

The Tort of Outrage

Etzel claims that Musicland subjected him to extreme and outrageous conduct causing him severe emotional distress. Musicland seeks summary judgment, contending that its conduct was not sufficiently extreme or outrageous to impose liability.

The Kansas Supreme Court has recognized the tort of outrage or intentional infliction of emotional distress5 as stated in the Restatement (Second) of Torts § 46(1) (1963). Dawson v. Associates Financial Services Co., 215 Kan. 814, 820, 529 P.2d 104 (1974). The tort “is not a favored cause of action under Kansas law.” E.E.O.C. v. General Motors Corp., 713 F.Supp. 1394, 1396–97 (D.Kan.1989). For example, Kansas courts have been reluctant to extend the tort of outrage to employment discrimination cases. Willcox v. Boeing Military Airplane Co., No. 87–1015–C, 1989 WL 107728, at *6, 1989 U.S.Dist. LEXIS 11034, at *15 (D.Kan. August 23, 1989) (citation omitted).

The Kansas Supreme Court recently discussed the tort of outrage:

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. [Citations omitted.] Proof of four elements is required to establish the cause of action: (1) The conduct of defendant must be intentional or in reckless disregard of plaintiff; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between defendant’s conduct and plaintiff’s mental distress; and (4) plaintiff’s mental distress must be extreme and severe.

“Liability for extreme emotional distress has two threshold requirements which must be met and which the court must, in the first instance, determine: (1) Whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it.”

Taiwo v. Vu, 249 Kan. 585, 592, 822 P.2d 1024 (1991) (quoting Roberts, 230 Kan. at 292–93).6

The Supreme Court of Kansas went on to discuss the type of conduct that is extreme and outrageous enough to permit recovery under the tort of outrage:

“In Dotson v. McLaughlin, 216 Kan. at 210, Mr. Justice Prager speaking for the court adopted guidelines from the Restatement of Torts. It was pointed out that recovery must depend on the facts and circumstances of each case but liability may only be found in those cases where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. It was further said liability may be found to exist generally in a case when the recitation of facts to an average citizen would arouse resentment against the actor, and lead that citizen to spontaneously exclaim, ‘Outrageous!’

“It should be understood that liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities. Members of the public are necessarily expected and required to be hardened to a certain amount of criticism, rough language and to occasional acts and words that are definitely inconsiderate and unkind. The law should not intervene where someone’s feelings merely are hurt. Freedom remains to express an unflattering opinion and to blow off relatively harmless steam which comes from an uncontrollable temper. Conduct to be a sufficient basis for an action to recover for emotional distress must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society.”

249 Kan. at 592–593 (quoting Roberts, 230 Kan. at 293).

In Gomez v. Hug, 7 Kan.App.2d 603, 645 P.2d 916 (1982), the plaintiff, an employee, was subjected to a stream of vulgar comments, racial epithets and threats of physical violence. The court of appeals concluded that summary judgment was inappropriate:

Certainly there is no occasion for the law to intervene in every case where someone’s feelings are hurt. Certainly the rough edges of our society still need smoothing down and there must still be freedom to blow off harmless steam. But this vituperation was well beyond the bounds of freedom to blow off harmless steam. It is not a burden of American citizenship in the State of Kansas that such vitriolic bullying as was turned by Hug against Gomez, and its emotional and physical consequences, must be accepted without possibility of redress and accepted as often as it amuses the speaker to utter it. Kansas courts are not so impotent. At the very least the victim of such an attack has the right to have his grievance heard by a jury of average members of the community to know whether they would exclaim. “Outrageous!”

7 Kan.App.2d at 610–11.

In the case at bar, the court has carefully reviewed the excerpts of the depositions. While the interrogation method employed by the defendant was abrasive and coercive, it failed, at least in the case at bar, to reach the minimum threshold of outrageous conduct sufficient to impose tort liability. Musicland’s conduct during the investigation of the inventory loss, while far from exemplary, was not so extreme and outrageous so as to permit recovery. See, e.g., Polson v. Davis, 635 F.Supp. 1130, 1150–1151 (D.Kan.1986), aff’d 895 F.2d 705 (10th Cir.1990).

Musicland’s motion for summary judgment on Etzel’s claim for outrageous conduct is granted.

Defamation

Etzel claims that he was defamed in two ways. First, Etzel contends that he was tricked, coerced or otherwise forced to publish a false statement that he was responsible for wrongfully taking $243 from Musicland. Specifically, Etzel claims that this forced “self-publication” was published within company but was outside the mantle of the qualified privilege to do so. Second, Etzel contends that Musicland slandered him by disseminating information to customers, the business community, co-workers and prospective employers in a non-privileged manner. Specifically, Etzel claims that Musicland published information that he was responsible for large inventory losses, was part of a conspiracy to embezzle from Musicland and its sister store, SunCoast Video, and impliedly or expressly told persons that his responsibility for loss from the store was due to illegal activity.

Musicland denies liability for defamation and seeks summary judgment on those claims. In the pretrial order, Musicland asserts the defense of truth as well as the defense of qualified privilege with respect to any communications made by it to third parties. Musicland also contends that any statements made by any Musicland employees regarding plaintiff were unauthorized and were not subsequently ratified. Any statements made by employees of Musicland regarding plaintiff would have been outside the scope of the employees’ authority and therefore Musicland cannot be held liable. In its motion for summary judgment, Musicland primarily focuses on the qualified privilege and its argument that any statements made by employees were not authorized or ratified. Musicland also argues that the plaintiff’s defamation allegations are not plead in conformity with Kansas law.

In response to Musicland’s motion, the plaintiff contends that Musicland defamed him by extracting a false confession and then publishing the falsehood that he stole from his employer while acting as manager of Musicland’s retail outlet. Etzel contends that the coerced confession resulted in his termination. The

plaintiff contends that genuine issues of material fact preclude summary judgment.

First, the plaintiff contends that the defendant told several employees that Etzel had confessed to stealing from Musicland. Etzel contends that Johnson obtained a false confession and maliciously publishing the statement to other agents of Musicland which resulted in his termination. Etzel contends that this constitutes libel or slander per se.

Next, the plaintiff contends that Tracy Banks’ communication to a person portraying herself as a potential employer constituted defamation.

The statements to Diane Olden and to Duncan’s may have had more significance in what they did not say than what they did, but Diane Olden states that there was no question that Musicland’s intention was to imply that Etzel was responsible for large scale theft, a known falsehood. Furthermore, defendant may not rely on a policy to prevent publication when it is negligent in enforcing that purported policy, as evidenced by the multiple publications to non-employee made by Eve Glotzbach and Tracy Banks.

Etzel also argues that there is a question of fact as to whether Musicland has lost its entitlement to a qualified privilege.

The tort of defamation includes both libel and slander. Luttrell v. United Telephone System, Inc., 9 Kan.App.2d 620, 683 P.2d 1292 (1984), aff’d 236 Kan. 710 (1985). The elements of the wrong include false and defamatory words communicated to a third person which result in harm to the reputation of the person defamed. Id. at 620–621 (citations omitted). “Damage to one’s reputation is the essence and gravamen of an action for defamation.” Id. at 622. A corporation may be liable for the defamatory utterances of its agent which are made while acting within the scope of his authority. Id. at 621.

At common law there are two types of defamation, defamation per se and defamation per quod. Zoeller v. American Family Mut. Ins. Co., 17 Kan.App.2d 223, Syl. ¶ 1, 834 P.2d 391 (1992). Historically, it was the law of Kansas that a statement may be considered libel or slander per se only if it falls into one of the following four categories: (1) imputation of a crime, (2) imputation of a loathsome disease, (3) imputation of a person’s unfitness for his trade or profession, or (4) imputation that a woman is unchaste. Polson, 635 F.Supp. at 1147 (citations omitted). Damages were presumed from defamation per se; defamation per quod required proof of actual damages for a finding of liability. Polson, 895 F.2d at 708. Kansas has abolished the distinction between defamation per se and defamation per quod. Id.

Prior to the United States Supreme Court decision in Gertz v. Robert Welch, Inc., 418

U.S. 323, 41 L.Ed.2d 789, 94 S.Ct. 2997 (1974), Kansas followed the common-law rule dividing libel into libel per se and libel per quod. Libel per se involved words from which malice was implied and damage was conclusively presumed to result. General damages from such a publication arose by inference of law and the plaintiff was not obliged to establish damage by proof. In response to the Gertz opinion, the rule in Kansas changed. Damages recoverable for defamation may no longer be presumed; they must be established by proof, no matter what the character of the libel.

Zoeller, 17 Kan.App.2d 223, Syl. ¶ 2.

The defendant to a defamation claim has a number of affirmative defenses, including among them truth

and privilege. Turner v. Halliburton Co., 240 Kan. 1, 7, 722 P.2d 1106 (1986). Truth is a complete defense.

High v. Hardware Co., 115 Kan. 400, 405, 223 P. 264 (1924). A privilege may be absolute or qualified. Turner, 240 Kan. at 7. In this case, Musicland asserts the qualified privilege. “Whether a privilege is available in an action for defamation must be determined based on the status of the particular defendant and the content of the alleged defamatory communication.” Id.

A qualified or limited privilege is generally restricted to those situations where public policy is deemed to favor the free exchange of information over the individual’s interest in his or her good reputation. One such qualified privilege exists with respect to business or employment communications made in good faith and between individuals with a corresponding interest or duty in the subject matter of the communication. (Citations omitted). The question of whether or not a publication is privileged is a question of law to be determined by the court.

240 Kan. at 7–8.

A plaintiff may defeat a qualified privilege by proving the defendant acted with actual malice. Turner, 240 Kan. at 8. In Munsell v. Ideal Food Stores, 208 Kan. 909, 920–21, 494 P.2d 1063 (1972), the Supreme Court of Kansas defined actual malice as acting with “actual evil-mindedness or specific intent to inure.” The Kansas pattern instructions define actual malice: “Proof of actual malice requires a plaintiff to prove that the (communication) (publication) was made with knowledge that the defamatory statement was false or with reckless disregard of whether it was false or not.” Pattern Instructions—Kansas 2d 14.54 (1990). In order to recover, the plaintiff must prove actual malice by the defendant and that it defamed the plaintiff. Id.

“Where the writing or delivering of a defamatory statement is invited or procured by the plaintiff or a person acting for him with full knowledge and consent, there is no such publication of a libelous matter as will support an action for damages. However, such rule has no application where a written statement is obtained from the plaintiff involuntarily by coercion or threat.” Munsell, 208 Kan. at 909, Syl. ¶ 1.

In regard to publication of the “confession” within Musicland itself, Musicland contends that intra- corporate communications between fellow employees does not satisfy the publication requirement. While this is the rule in some jurisdictions, in Kansas, “[r]emarks made in the course and scope of employment by one corporate employee and communicated to a second corporate employee concerning the job performance of a third employee constitute publication for the purposes of a defamation action against the corporate employer.” Luttrell, 9 Kan.App.2d 620, Syl. ¶ 1; see Polson, 635 F.Supp. at 1146. In Luttrell, the court commented that “damage to one’s reputation within a corporate community may be just as devastating as that effected by defamation spread to the outside. Thus, the injury caused by intra-corporate defamation should not be disregarded simply because the corporation can be sued as an individual entity.” Id. at 622.

Based upon the applicable law and viewing the evidence in the light most favorable to the plaintiff, the court denies Musicland’s motion for summary judgment on Etzel’s claim for defamation. Based upon the arguments presented and drawing all reasonable inferences in favor of Etzel, summary judgment is inappropriate. Etzel has presented sufficient evidence that the substance of the “confession” was communicated within the Musicland corporation.7 It is essentially uncontroverted that the substance of Etzel’s “confession” resulted in his termination. As to publication of the information to third parties, Musicland did have a policy prohibiting employees from discussing the reasons associated with any employee’s termination. The existence of that policy does not, in and of itself, immunize Musicland. As

the plaintiff suggests, whether the employees were acting within the scope of their employment and whether Musicland enforced this policy are issues of fact at this point.

On the issue of qualified privilege, Musicland is correct that any of its communications to other Musicland employees may be entitled to a qualified privilege. 8 In order for the court to find Musicland’s communications privileged as a matter of law, there must be no issue of fact on the issue of actual malice. The court does not agree with Musicland’s statement that their is “no” evidence of actual malice. While the court concluded that the evidence presented failed to meet the minimum threshold for establishing the tort of outrage, the evidence is sufficient to raise a material issue of fact as to whether Etzel was coerced into making the confession. Under those circumstances, the court is uncertain why Musicland contends that there is “no” evidence of actual malice. Musicland does not attempt to explain how its publication of Etzel’s statement was in “good faith” if Etzel can prove his allegations of coercion.

Musicland also contends that Etzel’s complaint does not comply with Kansas law requiring a petition for libel and slander to set forth the alleged defamatory words spoken or published, the names of those persons to whom they were spoken or published and the time and place of their publication. The plaintiff did not respond to this argument.

Once again, the court reminds the defendant that procedural matters are governed by federal law in federal court. The question of whether a state law defamation claim has been sufficiently pleaded in a federal diversity case is a procedural one governed by Fed.R.Civ.P. 8. Traffas v. Bridge Capital Corp., No. 90– 1304–SAC, 1990 U.S.Dist. LEXIS 17818 (D.Kan. December 3, 1990). In the context of a defamation claim, Fed.R.Civ.P. 8(a) requires the complaint provide sufficient notice of the communications complained of to allow the defendant to respond and defend itself. McGeorge v. Continental Airlines, Inc., 871 F.2d 952, 955 (10th Cir.1989). The court also notes that under the Federal Rules of Civil Procedure, “[a] civil action is commenced by filing a complaint with the court.” Fed.R.Civ.P. 3.

The court, having reviewed the evidence presented, has deemed it inappropriate to grant summary judgment. However, having reviewed the pretrial order and the depositions, the court has several concerns about the adequacy of the plaintiff’s allegations and the plaintiff’s ability to prove with specificity his defamation claims. “It is the plaintiff’s burden to introduce specific evidence of what was said, by whom and to whom.” White v. General Motors Corp., Inc., 908 F.2d 669, 674 (10th Cir.1990) (citing Schulze v. Coykendall, 218 Kan. 653, Syl. ¶ 2–3, 545 P.2d 392 (1976), cert. denied, 111 S.Ct. 788 (1991)). The evidence submitted in opposition to the defendant’s motion for summary judgment is replete with hearsay.

Moreover, the defamation allegations in the pretrial order, with some exceptions, lack specificity and do not provide the defendant with adequate notice of the defamation claims. As an example, in Count II.B.1.b. the plaintiff alleges that the “defendant, through its agents, told Duncan’s Movie Magic, a subsequent employer of the plaintiff, that Etzel’s termination was due to embezzlement, resulting in his termination from a second job within three months.” This allegation does not state with specificity which agents made what statements to whom. Having reviewed the excerpts from Etzel’s deposition and the other exhibits pertaining to Duncan’s Movie Magic, the court is uncertain as to the precise basis of this claim and is also uncertain whether the plaintiff can muster sufficient evidence to prove the necessary elements of each claim that appears in the pretrial order. Other defamation claims in the pretrial order also refer generally to statements made by agents to unspecified persons.

In light of the sparse evidence presented in opposition to the defendant’s motion for summary judgment, the court concludes that the plaintiff’s defamation allegations in the pretrial order are inadequate.

Discovery in this case is now complete. The plaintiff should be able to state with specificity his defamation claims. The plaintiff is allowed 20 days from the date this order is filed to file a proposed amendment to the pretrial order which states, with specificity, each defamation claim he intends to present at trial. Each defamation claim shall state with specificity the identity of the person who made the statement, the alleged statement that was made, the person to whom the statement was made and the approximate time that the alleged defamatory statement was made.

In addition, the court notes that the plaintiff’s defamation claim appears to encounter several serious impediments. If the plaintiff proceeds to trial, he will be required to prove with specificity what was said, by whom, and to whom. Even if the plaintiff can shoulder that task, the plaintiff must demonstrate that his statement was coerced. If the plaintiff can survive these first two hurdles, the plaintiff must defeat the affirmative defenses asserted by the defendant.

In regard to the defense of truth, the plaintiff appears to claim that his “confession” is false, at least in part, due to the $243 figure. The plaintiff admitted taking $20 worth of Musicland’s records without payment. Therefore, the court is uncertain why a statement that Etzel had “embezzled” is not true. If the plaintiff contends that the quantum and quality of the coerced statement are different from the actual truth, the plaintiff may nevertheless only recover for those damages associated with the falsity of the statement. Of course, if the plaintiff can prove that the defendant’s agents made other defamatory statements, such as indicating that Etzel was part of a large scale conspiracy, the plaintiff may recover for those damages directly related to those statements which are false.

In contrast, the defendant may introduce evidence demonstrating the truth of any statements, i.e., that the plaintiff took more that $243. In addition, the plaintiff may not be able to demonstrate actual malice. In short, the plaintiff may face an insurmountable task in proving his defamation claims. In light of these observations, the court encourages the parties to explore all other reasonable alternatives short of going to trial.

IT IS THEREFORE ORDERED that Musicland’s motion for summary judgment (Dk. 43) is granted in part and denied in part.

IT IS FURTHER ORDERED that Richard Todd Etzel shall file, within 20 days of the date of this order is filed, a proposed amendment to the pretrial order as more fully discussed in the body of this opinion.

1 While the parties have not stipulated that the law of Kansas governs this diversity action, the court has applied the law of Kansas in deciding these motions. See Ritchie Enterprises v. Honeywell Bull, Inc., 730 F.Supp. 1041, 1046 (D.Kan.1990).

2 Etzel attributes the large inventory loss to customer shoplifting. According to Etzel, Musicland’s strict staffing policy often prevented him from scheduling more than one employee at a time, contributing to the store’s inability to prevent shoplifting as there was insufficient staff to monitor the store.

3 Johnson apparently used these same interrogation techniques against another Musicland employee, Arthur Prosser. According to Prosser, Johnson threatened that “he had a search warrant for my house down at the police station. All that he had to do was go down there or call and activate it and they would come from my house and confiscate any musical equipment or goods that looked like they could have been Musicland property ...” Under the pressure of these and other threats, Prosser eventually confessed to something he had not done to simply placate

Johnson. Prosser confessed to “salvage” his job and avoid “end[ing] up in court facing a $60,000 shrinkage charge against me.”

In Musicland’s reply, Musicland denies that “ ‘the same technique’ was used on Prosser as Etzel, and further that any wrongdoing occurred in either case.”

4 In the plaintiff’s statements of uncontroverted facts, this sentence appears: “Johnson said Etzel had to sign a statement right then admitting that he had embezzled from the company or Johnson would call the police, have Etzel arrested and charged with embezzlement of $60,000.00.” Although the sentence following the quoted sentence contains a citation to the record, the quoted sentence is not followed with any citation to the record. The citations to the record following the sentence after the quoted sentence do not directly support the plaintiff’s statement of uncontroverted facts.

In regard to Prosser’s deposition, Etzel told Prosser that “Mark Johnson said that if Todd didn’t come clean with what he had—what his involvement was in the shrinkage loss that they would hold him responsible in court for the entire $60,000 shrinkage, that he would be embarrassed in the community, with his family.” This sentence appears to squarely fall within the definition of hearsay and is therefore not admissible and has not been considered by the court in ruling upon this motion.

5 The torts of outrage and the intentional infliction of emotional distress are interchangeable terms for the same cause of action. Taiwo v. Vu, 249 Kan. 585, 586, 822 P.2d 1024 (1991); Roberts v. Saylor, 230 Kan. 289, 637 P.2d 1175 (1981).

6 In Taiwo, the plaintiffs filed a civil suit against the defendant alleging assault, battery, false imprisonment and intentional infliction of emotional distress. The dispute in that case did initially rise out of the employee/employer relationship. Specifically, the disagreement between Mrs. Taiwo and Vu concerned Mrs. Taiwo’s final paycheck. During an argument about the amount of the final paycheck, the defendant apparently shoved Mrs. Taiwo in the chest and subsequently locked Mrs. Taiwo inside the day-care center. Vu also made false accusations to the police indicating that Mr. Taiwo had vandalized her car. Vu also instructed another employee, Sally Matthies, to tell the police that she observed the Taiwo’s vandalism, when in fact she did not witness any acts of vandalism by the Taiwo’s. The jury returned a verdict in favor of the plaintiffs in the amount of $20,000 and the trial judge assessed

$3,000 in punitive damages. The Supreme Court of Kansas affirmed the judgment of the district court.

7 As the defendant argues, the evidence presented by the plaintiff on this point is fraught with multiple hearsay problems. Nevertheless, the court concludes that the plaintiff has identified sufficient, albeit minimal, evidence to create material issues of fact on the issue of publication within the Musicland corporation.

8 Although Musicland did not specifically make this argument, its communications to customers may also be qualifiedly privileged. See High v. A.J. Harwi Hardware Co., 115 Kan. 400, 223 P. 264 (1924) (employer has a qualified privilege to communicate to its customers information pertaining to the discharge of a former employee).