Sherman v. Rinchem Co.

JEFFREY SCOTT SHERMAN, Plaintiff,

v.RINCHEM COMPANY, INC., Defendant.

Case No. 10-CV-2062 (PJS/FLN)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Dated: August 8, 2011

ORDER

Philip G. Villaume and Jeffrey D. Schiek, VILLAUME & SCHIEK, P.A., for plaintiff.

V. John Ella and Gine K. Janeiro, JACKSON LEWIS, LLP, for defendant.

Plaintiff Jeffrey Scott Sherman was fired by his employer, defendant Rinchem Company, Inc. ("Rinchem"), after he allegedly lied in the course of the company's investigation of complaints about his behavior. Sherman contends that he did not lie during the investigation, and that by accusing him of lying — and by forcing him to reveal to prospective employers that he had been fired for lying — Rinchem defamed him.

Rinchem moves for summary judgment. For the reasons that follow, the Court grants Rinchem's motion and dismisses Sherman's complaint.

I. BACKGROUND

From mid-2006 through December 2007, Sherman worked at Advanced Technology Materials, Inc. ("ATMI"), a company located in Bloomington, Minnesota. Sherman Dep. 36-37, 39. In late December 2007, Rinchem hired Sherman and several other ATMI employees to provide services to ATMI on an in-house basis. Sherman Dep. 36. At that point, Sherman became an employee of Rinchem. Sherman worked for Rinchem for less than four months — from December 26, 2007, until he was fired on April 22, 2008. Sherman Dep. 30.

Sherman had a "bad relationship" with one of his coworkers, Isabelle Thill. Sherman Dep. 57. Thill had worked with Sherman at ATMI and then, like Sherman, had been hired by Rinchem. Thill Dep. 8. On one or two occasions, Thill made an obscene gesture to Sherman, Sherman Dep. 26, and on April 11, 2008, she called him "weird," Sherman Dep. 55. Sherman found Thill's remark offensive, Sherman Dep. 54, and, after giving her the silent treatment for a day, he asked her to apologize for calling him weird, Sherman Dep. 56, 59. Thill did apologize, but Sherman found her apology to be sarcastic and insincere, Sherman Dep. 61, and he went back to giving her the silent treatment, Sherman Dep. 66.

Sherman was otherwise talkative with his coworkers, however, and he discussed with them, among many other things, the fact that two women had complained to the police about his alleged stalking of them. Sherman rollerblades around Lake Nokomis in Minneapolis on nearly a daily basis. In the course of his rollerblading, he occasionally strikes up conversations with women. Two of these women later complained to the police that Sherman had stalked them. Sherman Dep. 17-19. Sherman told his coworkers that one of these women, Delaine Marie Hansen, had threatened to get a restraining order against him, and that the other woman — whom Sherman knew only as "Amy" — had complained to police about his conduct toward her. Sherman Dep. 19-20.

In fact, though, Hansen did not merely threaten to get an order against Sherman. She obtained a temporary restraining order — an order that was in effect for roughly five weeks before being vacated after Hansen failed to appear at a court hearing. Sherman Dep. Ex. 9 at RINCHEM 000067. Sherman claims that he was never given notice of this order — and,throughout this litigation, Sherman has maintained that the order was not "valid" because it was served on him by publication, and not personally. Sherman Dep. 76, 82, 246.

The temporary restraining order obtained by Hansen is one of three that have been issued against Sherman. He and his ex-wife obtained restraining orders against each other prior to their divorce, and after the divorce was finalized, his ex-wife extended the order that she had obtained against Sherman. Sherman Dep. 6-7. Moreover, "long after" Sherman's divorce was finalized, his ex-wife's new husband, Ted Koukal, obtained a restraining order after Sherman called him an obscene name in a restaurant parking lot following a heated argument about what kind of dessert would be served for Sherman's son's birthday. Sherman Dep. 7-8, 107-08, 172-73.

In April 2008, Rinchem received complaints about Sherman's behavior in the workplace. There is confusion in the record about who initially complained about Sherman. Gwen Inman, Rinchem's director of human resources ("HR"), told Sherman that Thill had made the initial complaint. Sherman Dep. 126. But Tasha Budlong, another HR employee, testified that Sherman's immediate supervisor, Michelle Kohanek, made the first complaint. Budlong Dep. 14. It also appears that Holly Ellison, one of Sherman's coworkers, had independently informed Ryan Swainey (the manager of the warehouse at which Sherman worked) by e-mail that "we have a real situation here with Jeff." Ellison Dep. 32; Ellison Dep. Ex. 1.

In response to these complaints, Rinchem issued an employee-counseling memorandum to Sherman on April 17. In that memorandum, Sherman was informed that his coworkers had accused Sherman of "disruptive behavior at ATMI" and that Sherman would be placed on paid administrative leave while Rinchem investigated those accusations. Sherman Dep. Ex. 10. Inman (the HR director) and Budlong (the HR employee) conducted the investigation.

Between April 17 and April 21, Budlong interviewed several of Sherman's coworkers. The interviews focused primarily on Sherman's interactions with Thill, but some of the employees who were interviewed mentioned Sherman's comments about restraining orders and the women whom he had allegedly stalked at Lake Nokomis. Budlong's notes reflect that Kohanek told her that Sherman "bragg[ed] to everyone about having restraining orders brought against him." Budlong Dep. Ex. 4 at RINCHEM 000165. Ellison told Budlong that she overheard Sherman talking to Kohanek about the restraining orders and at least one of the women at Lake Nokomis. Budlong Dep. Ex. 4 at RINCHEM 000166. Craig Phipps, another employee at the warehouse, also knew about the "stalking orders." Budlong Dep. Ex. 4 at RINCHEM 000167. Even the FedEx driver who serviced the warehouse knew about Sherman's negative experiences with women at Lake Nokomis. Sherman Dep. Ex. 22.

Inman interviewed Sherman on Friday, April 18. Sherman Dep. 125. She asked Sherman if he had ever made unwanted advances toward Thill, or contacted or attempted to contact Thill outside of work. Sherman Dep. 126. Inman's questions led Sherman to believe that he was being investigated for sexual harassment. Sherman Dep. 128. Inman did not ask Sherman about the restraining orders during the interview on Friday, April 18. Sherman Dep. 130.

Inman again interviewed Sherman on Monday, April 21. Sherman Dep. 130. Sherman asked Inman about the status of her investigation, and Inman replied that she was "in a bit of a quandary" because she didn't "have anything yet." Sherman Dep. 132. She then asked Sherman if he had ever been the subject of a restraining order. Sherman Dep. 132.

The record is not clear as to precisely what Sherman said in response to Inman's question. In a letter to Rinchem dated April 23, 2008 — just two days after his conversation with Inman — Sherman described his response as relating to "whether anyone has had a restraining order against me unrelated to my divorce." Sherman Dep. Ex. 9 at RINCHEM 000063; see also Sherman Dep. Ex. 9 at RINCHEM 000059, 000060; Sherman Dep. Ex. 25. More than two years later, though, Sherman changed his story at his deposition. Sherman testified that he had told Inman that the only restraining orders that had been entered against him were restraining orders that had been obtained "[by] my ex-wife and her husband."¹ Specifically, Sherman testified as follows:

Q: Did you tell anyone at Rinchem — did you tell Ms. Inman that you never had any restraining orders against you unrelated to your divorce?

A: I told her that the only people that did have restraining orders against me were my ex-wife and her husband.

Q: Well, now you're saying it differently than what you said in your appeal?

A: Well, that's what — yes. I just went along with what Ms. Inman said.

Q: What do you mean?

A: She used the words related to my divorce.

Q: Okay.

A: That wasn't —Q: Well, let's just get to it. What's the question that Ms. Inman asked you?

A: About restraining orders?

Q: Yes.

A: She asked me whether I had ever received any restraining orders.

Q: And what was your answer?

A: I said no, except for my — my ex-wife and her husband.

Q: Those were your exact words?

A: Yes.

Q: Is it possible you said no, except related to my divorce?

A: Nope. Those were my exact words. I specifically stated who they were.

Sherman Dep. 99-100.

After Sherman responded to Inman's question about restraining orders — either by saying that only his ex-wife and her husband had obtained restraining orders against him, or by saying that only restraining orders related to his divorce had been obtained against him — Inman asked Sherman if he was certain that no other restraining orders had been obtained against him. Sherman vigorously denied that possibility. Sherman Dep. 132. Sherman denies that Inman asked him any other questions about restraining orders. Sherman Dep. 134-35.

Later that day, Sherman received a voice mail from Swainey (the site manager) asking him to attend an 8:30 a.m. meeting the next morning (Tuesday, April 22), so that they could discuss the results of the investigation. Sherman Dep. 137; Sherman Dep. Ex. 11. Present at themeeting were Sherman, Swainey, and James Carter (a coworker of Sherman's). Budlong participated in that meeting by telephone.

At the meeting, Swainey told Sherman that Rinchem had decided to fire him. Swainey read aloud from an employee-counseling memorandum written by Inman and dated April 21, 2008. This memorandum — which is the subject of Sherman's defamation claim in this action — said in relevant part:

Jeff has created a disruptive work environment by telling fellow employees about non-work related questionable activities. During the course of the investigation, it was discovered that more than two employees heard Jeff talking about restraining

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