ORDER RE: PLAINTIFF'S MOTION FOR RECONSIDERATION
Plaintiff Zane Hardin ("Plaintiff") has been an employee of Defendant Wal-Mart ("Defendant") for several years. Broadly, Plaintiff alleges that Defendant discriminated against and harassed him on the basis of age and physical disability, and then retaliated against him when he asserted his rights.
Plaintiff originally filed this case in state court on March 20, 2008; it was removed to federal court on diversity jurisdiction. The active complaint is the third amended complaint, which includes fourteen causes of action. They are: employment discrimination, retaliation, harassment, and denial of reasonable accommodation in violation of California's Fair Employment and Housing Act ("FEHA"); violation of California's Business & Professions Code §17200; violation of California Civil Code §51; intentional infliction of emotional distress; breach of contract; promissory estoppel; conversion; negligent infliction of emotional distress; wrongful demotion; and defamation. Defendant made a motion for summary judgment, which Plaintiff opposed. Summary judgment was granted in favor of Defendant. Doc. 204. Plaintiff has made a motion for reconsideration. Doc. 206. The motion was opposed and taken under submission without oral argument.
"Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law. There may also be other, highly unusual, circumstances warranting reconsideration." School Dist. No. 1J Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), citations omitted.
Plaintiff does not appear to raise new evidence or change in the law. Instead, Plaintiff aruges that the court misinterpreted the evidence in the summary judgment order. The arguments are analyzed under clear error.
Plaintiff argues that Defendant's statement constitutes libel per se. Doc. 207, Brief, 16:15-23. "A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face." Cal. Civ. Code §45a. In the employment context, a statement must "injure plaintiffs' reputation with respect to their occupation....without the necessity of resorting to extrinsic material." Williams v. Daily Review, Inc., 236 Cal. App. 2d 405, 411 (Cal. App. 1st Dist. 1965), overruled on other grounds by Brown v. Kelly Broadcasting Co., 48 Cal. 3d 711, 732 n.18 (Cal. 1989). In general, "unless an employer's performance evaluation accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior it cannot support a cause of action for libel. This is true even when the employer's perceptions about an employee's efforts, attitude, performance, potential or worth to the enterprise are objectively wrong and cannot be supported by reference to concrete, provable facts." Gould v. Maryland Sound Industries, Inc., 31 Cal. App. 4th 1137, 1153 (Cal. App. 2d Dist. 1995), quoting Jensen v. Hewlett-Packard Co., 14 Cal. App. 4th 958, 966 (Cal. App. 4th Dist. 1993). "[T]he court must first determine as a question of law whether the statement is reasonably susceptible of a defamatory interpretation; if the statement satisfies this requirement, it is for the jury to determine whether a defamatory meaning was in fact conveyed to the listener or reader." Kahn v. Bower, 232 Cal. App. 3d 1599, 1608 (Cal. App. 1st Dist. 1991). In California, showing that the statement constitutes libel per se such that the issue goes to a jury is a high standard to meet.
The substance of the "Coaching for Improvement" document is roughly reproduced as follows:
The Level, Type, and Reason(s) displayed below were the original Level, Type, and Reason(s) selected for the coaching Level Type Reason(s) Verbal Misconduct Safety/Safe Work Practices Observations of Associates Behavior and/or Performance: On 10 20 04 Zane was working in the Furniture Department working up a pallet of freight. He lifted a box that weighed 100lbs. When lifting the box Zane twisted his back. Zane did not ask for anyone to help him with a team lift.
Impact of Associate's Behavior: This injury has caused Zane to have a back injury causing him pain. This will also have a financial impact on the store Dr. bills. This affects other associates and their attitudes towards safety as it takes away from our safety incentives.
Behavior Expected of Associate: Zane needs to ensure that when he is lifting heavy items he has an Associate help him with a Team lift.
Next Level of Action: The next level of action if behavior continues is: Written up to and including Termination.
Date, Time, and Place of Coaching: Date Given 2004-11-09 Time 11:05 AM Place Asst Mgrs Office Expiration Date: The expiration date of the coaching may be extended beyond 1 year if the Associate spent time on LOA.
Expiration Date 2006-05-15 Original Expiration Date 2005-11-10 Doc. 190, Part 5, Ex. 7, Ex. A, (12 of 35). There is no conceivable implication of criminal conduct, dishonesty, or reprehensible personal characteristics in this report; these statements will be analyzed to determine if this report constitutes a claim of incompetence.
Directly stating a person is incompetent constitutes libel per se. Care Plus Ins. Mktg. v. Conn. Gen. Life Ins. Co., 2010 U.S. Dist. LEXIS 134892, *15 (E.D. Cal. Dec. 20, 2010) (alleged assertion is "Plaintiffs were not paid as a result of Plaintiffs' incompetence, mismanagement and dishonesty"); Greenly v. Sara Lee Corp., 2008 U.S. Dist. LEXIS 35472, *26-29 (E.D. Cal. Apr. 29, 2008) ("plaintiff had faked his workers' compensation claim [and] was incompetent as a worker" ). In dealing with statements that do not use the term "incompetent" or some variant thereof, the assertion has to strongly suggest that the plaintiff is completely unsuited to the job. Stating plaintiff was "an 'unreliable' employee who missed too much work" is insufficiently strong to constitute libel per se. Jaramillo v. Food 4 Less Madera, 2010 U.S. Dist. LEXIS 120930, *24 (E.D. Cal. Nov. 16, 2010). The two statements "lousy discounter" and "what's a class guy like you doing working for a discounter like Penner?" did "not rise to the level of an accusation that Penner is wholly incompetent in business. Accordingly, the slander per se claim fails as a matter of law." Penner v. Breitling USA, 1996 U.S. Dist. LEXIS 4816, *14-15 (N.D. Cal. Apr. 8, 1996), citations omitted. A general statement of "poor performance...does not suggest any lack of honesty, integrity or competency" in contrast to allegation plaintiff made a $100,000 error in estimating a contract bid. Gould v. Maryland Sound Industries, Inc., 31 Cal. App. 4th 1137, 1154 (Cal. App. 2d Dist. 1995).
In another case, the key allegedly defamatory statements were "On our March 11, 2005 conference call with Tom, he proudly mentioned that he 'procured' two RFPs for BlackRock. When we asked him who the underlying clients were, he didn't know. His posture as having had any role in RFPs sent to BlackRock was thus a bit puzzling" and "Tom also highlighted his active participation in conversations with Paccar, while in reality, Paccar contacted a colleague directly to begin discussions in which Tom was later included." Rudwall v. Blackrock, Inc., 2006 U.S. Dist. LEXIS 89801, *3-4 (N.D. Cal. Nov. 30, 2006). The Ninth Circuit concluded that "At most, the statements accuse Rudwall of exaggerating his role in various business matters." Rudwall v. Blackrock, Inc., 289 Fed. Appx. 240, 242 (9th Cir. 2008). Even though there is the distinct suggestion of dishonesty, there is no real condemnation; the level of seriousness does not rise to that of libel per se. Similarly, statements to the effect that "Regalia demanded a finder's fee to which he was not entitled and that other employees would not work for Regalia and would leave if he remained employed by The Nethercutt Collection" do not constitute libel per se. Regalia v. The Nethercutt Collection, 172 Cal. App. 4th 361, 369 (Cal. App. 2d Dist. 2009). There is disapproval of plaintiff's work actions, but no statement that the plaintiff is hopeless or completely unsuited to the job. The district court recognized "California's special treatment of employee evaluations....California law makes it clear that, except in egregious circumstances not present here, the courts are not the proper venue for an ...