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Parish v. Motorola

March 29, 2007


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


Plaintiff, Gregory Parish, worked as a design engineer for Defendant Motorola, Inc., until he resigned voluntarily on August 27, 2003. More than two years later, Parish filed this lawsuit, alleging that comments made by his supervisor in performance evaluations and in a "performance improvement plan" ("PIP") constitute "defamation and libel outside normal supervisory and employee interaction." Amended Complaint, ¶ 4. In discovery, Plaintiff identified, as an additional instance of defamation, Motorola's statement to the Illinois Department of Employment Security in response to his claim for unemployment benefits. Plaintiff's amended complaint adds a claim for fraudulent misrepresentation. Motorola now moves for summary judgment on all of Plaintiff's claims and, for the reasons explained here, the motion is granted.


Motorola hired Parish on July 23, 2001 to work as a design engineer in its Automotive and Industrial Electric Group. (Def.'s 56.1 ¶ 8.) In that position, Parish was supervised by Senior Design Engineer Joel Kaphengst and by Kaphengst's own manager, Pavel Pesek. (Def.'s 56.1 ¶ 9, citing Deposition of Joel L. Kaphengst, Ex. G to Def.'s 56.1, at 11-11; Deposition of Pavel Pesek, Ex. H to Def.'s 56.1 at 10-12.)

All but one of the statements that Plaintiff identifies as defamatory were made as part of Motorola's performance review process. That process included periodic meetings in which the employee and his managers assessed the employee's progress toward certain goals and, in January of each year, self-assessment by the employee and a rating by the manager of the employee's overall performance for the previous year, ranging from CE (for "consistently exceeds expectations"), EC ("exceeds some expectations"), and ME ("meets expectations") through NI ("needs improvement") and DM ("does not meet expectations"). (Def.'s 56.1 ¶ 14; Declaration of Gail Berrier, Ex. F to Def.'s 56.1, ¶ 6.) In addition to these ratings, Motorola's managers are expected to rank their employees on a curve in which no more than 20% of their subordinates are deemed "most effective" ("ME"), 70% are "solidly effective" ("SE) and ten percent are considered "least effective" ("LE"). (Def.'s 56.1 ¶ 13; Berrier Decl. ¶ 6.)

Joel Kaphengst followed these steps in evaluating Plaintiff's performance in 2002. Kaphengst rated Plaintiff as "NI" and ranked him in the "least effective" group of employees. Though he did not formally appeal this evaluation through Motorola's formal appeal process, Plaintiff did complain about it to Kaphengst and Pesek, as well as to Motorola's Human Resources department, without success. (May 23 Deposition of Gregory Parish, Exhibit E to Def.'s 56.1, at 241-47.) As a result of this poor performance evaluation, Pavel Pasek placed Plaintiff in a Performance Improvement Plan ("PIP"). (Pesek Dep. at 31-34.) Plaintiff received the final written version of that plan, which identified a need for improvement in Plaintiff's performance and behavior, on April 25, 2003. (May 23 Parish Dep. at 81; Performance Improvement Plan, Ex. E-5 to Def.'s 56.1.) To Plaintiff's knowledge, Parish, Kaphengst, Human Resources Officer Gail Berrier, and Plaintiff himself are the only persons who saw this document. (May 23 Parish Dep. at 82.) Plaintiff met with Pesek regularly while the PIP was in place; at the 30-day mark, he noticed improvement and rated Plaintiff's performance as acceptable. (May 23 Parish Dep. at 84, 274; 30- Day Follow Up Document, Ex. E-6 to Def.'s 56.1.)

On August 27, 2003, before the conclusion of the PIP, Parish voluntarily resigned from Motorola, effective immediately. (Def.'s 56.1 Stmt ¶ 10; May 23 Parish Dep. at 96, 97; Parish Dep. Ex. 11.) Parish did not disclose the reason for his resignation at the time, (Pesek Decl. ¶ 17), but he later testified that he decided to leave Motorola because he had "enough of everything that [he] was able to do where [he] was at the company, and [he] just realized that [he was] fine with not working [there] anymore, and [he was] just going to notify them." (Def.'s 56.1 Stmt ¶ 10; May 23 Parish Dep. 119.) Parish later moved to Minnesota, where he filed this lawsuit in August 2005. (Def.'s 56.1 Stmt ¶ 11; May 23 Parish Dep. at 7, 96, 97.)*fn2

In this lawsuit, Parish claims that specific statements in the April 2003 PIP document are defamatory and constitute fraudulent misrepresentations: (1) that he "received LE/SI rating last year because of insufficient productivity;" (2) that he "has demonstrated some improvement in productivity while working on the ten [cylinder] program but needs to improve further;" (3) that his "reaction to supervisor's feedback was confrontational" and that he "doesn't appear to accept negative feedback, and he disputes the need for improvement;" (4) that he "needs to improve his communication with teammates;" and (5) that he "needs to actively seek help and feedback from his teammates, accept it, and utilize it in his work." (May 23 Parish Dep. 125-27, 170-71, 185-86, 193-94, 213-14; June 23 Deposition of Gregory Parish, Ex. J to Def.'s 56.1, at 17-19, 86, 104-05, 119, 131.) He also complains that on one occasion, a co-worker, Scott Moseler, made a statement that Parish did not follow through on Moseler's suggestions; and that on another occasion Pesek asked Parish a "mocking" question during a group meeting. (June 23 Parish Dep., at 30, 181-82.) In addition, Plaintiff complains that Motorola's agent told the Department of Employment Security that Parish voluntarily resigned for medical reasons. (May 23 Parish Dep. at 218-19; June 23 Parish Dep. at 165-66.)


Defendant seeks summary judgment on all of Plaintiff's claims. Although Defendant has presented a variety of arguments in support of this motion, the court focuses only on those that are dispositive here: the untimeliness of claims arising from statements made during Plaintiff's employment; Plaintiff' failure to show any harm resulting from the alleged statement about the reason for his resignation; and the absence of any showing that Plaintiff himself was misled by Defendant's alleged false statements. Before reaching those arguments, however, the court pauses to address the choice of law.

A. Choice of Law

In a diversity action such as this, the court will apply the choice-of-law analysis of the transferor court. See Ferens v. John Deere Co., 494 U.S. 516, 519 (1990). As this case was initially filed in Minnesota, that state's choice-of-law analysis will determine whether Illinois or Minnesota tort law governs Parish's claims. For procedural matters, Minnesota applies Minnesota law; with respect to substantive issues, Minnesota conducts a choice-of-law analysis. See Fredin v. Sharp, 176 F.R.D. 304, 307-08 (D. Minn. 1997). Under Minnesota law, statutes of limitation are considered to be procedural. Id. at 308. Therefore, Minnesota's statutes of limitation regarding defamation and fraudulent misrepresentation claims apply in this action. On the other hand, the court agrees with Defendants that Minnesota's choice-of-law factors weigh in favor of applying Illinois' substantive law to Parish's tort claims. Specifically, all of the events giving rise to Parish's claim took place in Illinois. The only connection this case has to Minnesota is that Parish moved to Minnesota after the events took place.

B. Job Performance Evaluation Statement

Motorola argues that any statements made during Plaintiff's employment can not be the basis of a timely defamation claim. The court agrees. Minnesota law requires plaintiffs alleging defamation to file suit within two years of their "discovery of the allegedly defamatory publication." Whyte v. American Bd. of Physical Med. & Rehab., 393 F. Supp. 2d 880, 890 (D. Minn. 2005); Minn. Stat. ยง 541.07. See also McGovern v. Cargill, Inc., 463 N.W. 2d 556, 558 (Minn. App. Ct. 1990).Parish filed his complaint on August 29, 2005. It is undisputed, however, that he learned of all of the statements made by managers or co-workers during his employment with Motorola before his resignation on August 27, 2003. The fact that Plaintiff continued working for two more days, until August 29, does not change the time the statements ...

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