Summary: Plaintiff sued defendant, alleging violations of the Americans with Disabilities Act, North Dakota Human Rights Act, and several torts. The Court granted summary judgment for defendant.

Case Name: Alan Gaetz v. Clear Channel
Case Number: A3-00-141
Docket Number: 27
Date Filed: 6/6/01
Nature of Suit: 440

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION

ORDER

I. Introduction

Before the Court is defendant's motion for summary judgment (doc. # 24). Plaintiff has responded and resists the motion (doc.'s # 25, 26). For the reasons set forth below, defendant's motion is GRANTED.

II. Analysis

The relevant facts will be referred to in the course of the Court's discussion. Thus, the Court will not set them forth separately in detail.

A. Summary judgment standard

Summary judgment is appropriate only when 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). A fact is "material" if it might affect the outcome of a case, and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Churchill Bus. Credit, Inc. v. Pacific Mut. Door Co., 49 F.3d 1334, 1336 (8th Cir. 1995).

The basic inquiry for summary judgment purposes 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." However, the nonmovant must do more than merely restate earlier pleadings; the nonmoving party must advance specific facts to create a genuine issue of material fact for trial. See, e.g., F.D.I.C. v. Bell, 106 F.3d 258, 263 (8th Cir. 1997). This requirement is not satisfied by "mere speculation, conjecture, or fantasy"; rather, it requires sufficient evidence to allow a finding in its favor, assuming the evidence is established at trial. See Wilson v. International Business Machines Corp., 62 F.3d 237, 241 (8th Cir. 1995).

B. Plaintiff's claims

Plaintiff's complaint seeks recovery under the Americans with Disabilities Act (ADA) and the North Dakota Human Rights Act (NDHRA). He has also amended his complaint to include claims for "mental torture, famacide, intention to defame, defamacast, harassment, and criminal intention to inflict emotional harm." Even construing these claims liberally, the Court concludes that none of them can survive defendant's motion for summary judgment.

Second, the claims relating to defamation must fail. Defamation in North Dakota may be either libel or slander. See generally N.D. Cent. Code § 14-02 et seq. Libel is a "false and unprivileged publication . . . which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes the person to be shunned or avoided, or which has a tendency to injure the person in the person's occupation." Id. § 14-02-03. The definition of slander provides in relevant part that "[s]lander is a false and unprivileged publication other than libel, which . . . [c]harges any person with crime . . . [t]ends directly to injure the person in respect to the person's office, profession, trade, or business; [i]mputes to the person impotence or want of chastity; or causes actual damage." Id. § 14-02-04.

Review of the file makes clear that, even accepting all of plaintiff's allegations as completely true, he has not alleged what these statutes require. In his long and rambling pleadings, plaintiff identifies a number of individuals he believes have wronged or slandered him, some dating back to his childhood and often including accusations that those wronging him are "Mafia." However, the only statement by defendant that could be described as potentially defamatory is that one of defendant's employees called him "a crazy man" on the air. However, plaintiff merely states that he was thus described; he does not allege that it caused him any injury in his career, as libel requires, or that it injured him in any of the ways set forth in the slander provisions. The Court concludes that this general assertion, standing alone, is insufficient to survive summary judgment.

The claims for mental torture and criminal intention to inflict emotional harm fare no better. The Court construes these as claims for intentional infliction of emotional distress. This tort requires proof that defendant engaged in "extreme and outrageous conduct which is intentional or reckless and causes severe emotional distress." See Dahlberg v. Lutheran Social Service of North Dakota, 624 N.W.2d 241, 248 (N.D. 2001). This requirement is "narrowly limited to outrageous conduct that exceeds all possible bounds of decency," which is "so extreme in degree as to be beyond all possible bounds of decency or to be utterly intolerable in a civilized society." Id. Again, defendant's pleadings are somewhat confusing, as they range over a period of over 40 years and contain allegations against many different individuals. The most this defendant did, however - taking plaintiff's allegations as true - was violate plaintiff's rights under the ADA and NDHRA by refusing to hire him because of a disability. This is not conduct so beyond the bounds of decency as to be actionable as infliction of emotional distress, and this claim thus cannot survive summary judgment.

Finally, plaintiff's claims under the ADA and NDHRA must also fail. These claims both require plaintiff to establish a prima facie case of discrimination. In both cases, this essentially requires showing (1) that plaintiff is disabled within the meaning of the statute; (2) he is qualified to perform the essential elements of the job, with or without reasonable accommodation; and (3) he suffered an adverse employment decision because of the disability. See Treanor v. MCI Telecommunications Corp., 200 F.3d 570, 574 (8th Cir. 2000) (discussing the ADA); Engel v. Montana Dakota Utilities, 595 N.W.2d 319, 321 (N.D. 1999) (discussing the NDHRA). In both cases, if a plaintiff sets forth a prima facie case, defendant then must come forward with evidence of legitimate, nondiscriminatory reason for its action. ⁽¹⁾ Here, plaintiff's claim fails for several reasons.

First, it is not clear that plaintiff is disabled or that defendant knew he was when it declined to rehire him. Defendant asserts that he is mentally disabled, but he offers no proof of that fact beyond his assertions. Further, he does not allege any specific kind of disability, just a generalized claim of a mental disability. Under these circumstances, it is far from clear that he is disabled within the meaning of the ADA and NDHRA. Further, defendant claims it did not have reason to suspect plaintiff was disabled when it made the decision at issue. Plaintiff's rejoinder is that he did, in fact, tell defendant of his disability, and defendant's affidavit to the contrary is thus a lie. Arguably, this creates a question of fact, although it is undercut by the fact that plaintiff has simply denied defendant's claims without offering any evidence or an affidavit.

Further, however, defendant offers a legitimate, nondiscriminatory reason for its decision. When defendant acquired the radio station at issue, it required everyone to reapply. It then chose not to rehire plaintiff because (1) he demanded an unreasonable salary - according to plaintiff, he requested $15,000 dollars a day, seven days a week, 52 weeks a year, or $5.46 million per year - and (2) he had not shown he could do the job during his few weeks at work. In the Court's view, either is sufficient for defendant's decision, and because plaintiff has admitted the salary demand, there is no fact question. Further, plaintiff's only response to defendant's claims about his abilities are that he never received enough training and that defendant sabotaged his work, claims made without any support. Thus, the Court finds defendant has met its burden to rebutting plaintiff's prima facie case and thus finds summary judgment appropriate.

III. Conclusion

In short, it is hard not to describe this lawsuit as frivolous. The pleadings ramble for pages about the perceived slights visited upon plaintiff by, among others, Jay Leno and Johnny Carson, the Mafia, the Grand Forks Police Department, various members of his family and the community, and various figures in the world of popular music. Almost as an afterthought, he makes a series of allegations against this defendant, but the Court concludes that they cannot stand. Thus, for the reasons set forth above, defendant's motion for summary judgment (doc. # 24) is GRANTED.

IT IS SO ORDERED.

Dated this _____ day of June, 2001.

RODNEY S. WEBB, CHIEF JUDGE
UNITED STATES DISTRICT COURT

1. The Court is aware that the analyses and burdens are somewhat different under the two statutes, but it believes that they are similar enough to be considered identical for purposes of this case.