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Guisinger v. E.A. Tow Transport, Inc.

United States District Court, S.D. Ohio, Eastern Division

May 30, 2018

E.A. TOW TRANSPORT, INC., d/b/a E.A. TOWING, et al., Defendants.

          Jolson Magistrate Judge



         This 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.

         I. BACKGROUND

         Defendant 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).

         Guisinger 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 pay.

         On 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.

         (Doc. 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 me.” (Id.).

         The 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.


         Guisinger 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.

         The 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”).

         In 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 ...

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