United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
C. SMITH, JUDGE
matter is before the Court upon Plaintiff/Counterclaim
Defendant Joshua Lee Guisinger's Motion for Partial
Summary Judgment as to Defendant/Counterclaim Plaintiff Elias
Arana's Counterclaim (“Guisinger's
Motion”) (Doc. 13). The motion is fully briefed and
ripe for disposition. For the following reasons,
Guisinger's Motion is DENIED.
E.A. Tow Transport, Inc., d/b/a E.A. Towing is in the
business of transporting wrecked personal and commercial
vehicles. (Doc. 1, Compl. ¶ 12). Defendant Elias Arana
is the owner of E.A. Towing and sets the payroll policies and
practices for E.A. Towing's employees. (Id.
¶ 13). Plaintiff Joshua Lee Guisinger worked for E.A.
Towing as a tow truck driver from October 2015 to January
2017. (Id. ¶¶ 11, 15, 33). The parties
dispute whether Guisinger resigned from his employment or was
terminated by E.A. Towing. (Id. ¶ 33; Doc. 4,
Ans. ¶ 33).
was paid by E.A. Towing on a commission-only basis. (Doc. 1,
Compl. ¶ 28). He alleges that he was typically
required to work between 60 and 70 hours per week, but was
not paid overtime compensation for the hours worked in excess
of 40 per week as required by the Fair Labor Standards Act
and Ohio Fair Minimum Wage Standards Act. (Id.
¶¶ 29, 32). His Complaint also asserts claims for
failure to tender pay by regular payday, breach of a contract
promising an increase in his per-vehicle commissions, and
promissory estoppel with regard to unpaid accrued vacation
February 17, 2017, within a few weeks after separating from
E.A. Towing, Guisinger posted the following content to his
personal Facebook account:
Well, my first week is over and it flew by. I have been home
before 4 every day, and have not been truely [sic]
pissed off once. I must say, this was a good decision. Of
course every yin, has a yang. My last employer decided he was
keeping my week of paid vacation time, and part of my last
check is also missing. That's what I get for working for
a shady mofo. Lesson learned, and good riddance. Open one
door, and slam the other shut. I'm off and running.
13-2, Facebook post). Another individual commented on
Guisinger's post, stating, “That's illegal.
They have to give it to you. Wage and hour board, ” to
which Guisinger replied (still on February 17, 2017),
“I was working for a Mexican who did alot
[sic] of things against labor and other laws. He
only cares about his money, not anyone elses [sic].
Dirtbags do stuff like that because they know that it would
cost me more money to take him to court, than he owes
post and its comments were seen by Guisinger's former
co-workers at E.A. Towing, who reported them to Arana. (Doc.
4, Countercl. ¶ 5). In his answer to Guisinger's
Complaint, Arana asserted a counterclaim against Guisinger
for defamation per se arising out of the February
17, 2017 Facebook post and comment. (Id.
¶¶ 4-10). Guisinger now moves for summary judgment
only as to Arana's counterclaim.
SUMMARY JUDGMENT STANDARD
moves for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. Summary judgment is appropriate
when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); Berryman v. SuperValu
Holdings, Inc., 669 F.3d 714, 716-17 (6th Cir. 2012).
The Court's purpose in considering a summary judgment
motion is not “to weigh the evidence and determine the
truth of the matter” but to “determine whether
there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine
issue for trial exists if the Court finds a jury could return
a verdict, based on “sufficient evidence, ” in
favor of the nonmoving party; evidence that is “merely
colorable” or “not significantly probative,
” however, is not enough to defeat summary judgment.
Id. at 249-50.
party seeking summary judgment shoulders the initial burden
of presenting the Court with law and argument in support of
its motion as well as identifying the relevant portions of
“‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, ' which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting Fed.R.Civ.P. 56). If this initial burden is
satisfied, the burden then shifts to the nonmoving party to
set forth specific facts showing that there is a genuine
issue for trial. See Fed. R. Civ. P. 56(e); see
also Cox v. Kentucky Dep't of Transp., 53 F.3d 146,
150 (6th Cir. 1995) (after burden shifts, nonmovant must
“produce evidence that results in a conflict of
material fact to be resolved by a jury”).
considering the factual allegations and evidence presented in
a motion for summary judgment, the Court “views factual
evidence in the light most favorable to the non-moving party
and draws all reasonable inferences in that party's
favor.” Barrett v. Whirlpool Corp., 556 F.3d
502, 511 (6th Cir. 2009). But self-serving affidavits alone
are not enough to create an issue of fact sufficient to
survive summary judgment. Johnson v. Washington Cty.
Career Ctr., 982 F.Supp.2d 779, 788 (S.D. Ohio 2013)
(Marbley, J.). “The mere existence of a scintilla of
evidence to support [the non-moving party's] position
will be insufficient; there must ...