Donald W. Zimmerman, Appellant, vs. World Data Products, Inc., Respondent. C3-99-281, Court of Appeals Unpublished, June 22, 1999.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-99-281

Donald W. Zimmerman,

Appellant,

vs.

World Data Products, Inc.,

Respondent.

Filed June 22, 1999

Affirmed

Short, Judge

Hennepin County District Court

File No. 9722581

Lee R. Johnson, Johnson & Greenberg, P.L.L.P., Interchange Tower, Suite 1525, 600 South Highway 169, St. Louis Park, MN 55426 (for appellant)

William M. Hart, Richard L. Pemberton, Jr., A. Lisa Merklin Lewis, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Peterson, Presiding Judge, Short, Judge, and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

SHORT, Judge

This defamation action arises from the publication of a letter and three memoranda written by World Data Products, Inc. (employer) citing "poor attitude" and "poor work performance" as reasons for Donald Zimmerman's discharge. Zimmerman sued his employer for defamation. On appeal, Zimmerman argues the trial court erred in: (1) summarily dismissing his defamation claim; (2) denying his motion to amend the complaint; and (3) denying his motion to add punitive damages. We affirm.

D E C I S I O N

On appeal from summary judgment, this court considers whether there are any genuine issues of material fact and whether the trial courts erred in their application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). While this court views the evidence in the light most favorable to the nonmoving party, the nonmovant must produce specific facts that create an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552 (1986); Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 371 (Minn. 1995).

Zimmerman argues the reasons cited in both the letter and memoranda are actionable defamatory statements that are unprotected by a qualified privilege. But statements that cannot reasonably be interpreted as stating facts are protected from defamation actions under the First Amendment. Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-21, 110 S. Ct. 2695, 2706-07 (1990) (citations omitted); Lee v. Metropolitan Airport Comm'n, 428 N.W.2d 815, 820-21 (Minn. App. 1988); see also Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980) (recognizing defamatory statement must be able to be proven false).

Although the letter and memoranda listed "poor attitude" and "poor work performance" as reasons for Zimmerman's termination, these statements are vague and do not contain facts or factual connotations that can be proven false. See Diesen v. Hessburg, 455 N.W.2d 446, 456 (Minn. 1990) (Simonett, J., concurring) (concluding statement not actionable when, after all underlying predicate facts are considered, statement is not provable); see, e.g., McGrath v. TCF Bank Sav., F.S.B., 502 N.W.2d 801, 808 (Minn. App. 1993) (concluding phrase "troublemaker" not actionable because it fails to suggest verifiable facts), modified, 509 N.W.2d 365 (Minn. 1993); Huyen v. Driscoll, 479 N.W.2d 76, 81 (Minn. App. 1991) (holding statement regarding employee's "willingness to participate" not actionable because not capable of proof), review denied (Minn. Feb. 10, 1992). Moreover, the statements imply no specific conduct attributable to Zimmerman that harms his reputation. See, e.g., Schibursky v. International Bus. Machs. Corp., 820 F. Supp. 1169, 1181-82 (D. Minn. 1993) (concluding statements that employee was "hard to work with" and "rude" are too imprecise to injure employee), rev'd on other grounds, No. 95-3290, 1996 WL 351141 (8th Cir. June 27, 1996); Geraci v. Eckankar, 526 N.W.2d 391, 397 (Minn. App. 1995) (holding statement that employee did not "have the technical expertise to work on that" too vague to harm employee's reputation), review denied (Minn. Mar. 14, 1995).

Given the undisputed facts, Zimmerman failed to base his defamation claim on actionable statements. See Stuempges, 297 N.W.2d at 255 (listing elements of defamation claim). Under these circumstances, the trial court properly dismissed Zimmerman's defamation claim against employer as a matter of law. See Lund v. Chicago & Northwestern Transp. Co., 467 N.W.2d 366, 369 (Minn. App. 1991) (noting opinion-fact determination is question of law), review denied (Minn. June 19, 1991).

II.

Zimmerman also argues the trial court abused its discretion in denying his motion to amend the complaint to add a claim for slander. See Utecht v. Shopko Dep't Store, 324 N.W.2d 652, 654 (Minn. 1987) (noting it is within trial court's discretion to deny motion to amend complaint). But it is not an abuse of discretion to deny a motion to amend when the moving party fails to establish evidence to support an additional claim. Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 405 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995). Because the statements in Zimmerman's slander claim are identical to those in the defamation claim, the trial court did not abuse its discretion in denying Zimmerman's motion. Milkovich, 497 U.S. at 19-21, 110 S. Ct. at 2706-07; Geraci, 526 N.W.2d at 397. We need not reach Zimmerman's argument regarding his motion to amend the complaint to add punitive damages because our decision is against Zimmerman on the merits of his action.

Affirmed.