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Defamation Claim Nixed in Senate Affair Firing

MINNEAPOLIS (CN) - A legislative staffer who had an affair with former majority leader of the Minnesota Senate cannot sue for defamation, a federal judge ruled.

The Minnesota Senate hired Michael Brodkorb as a communications director in 2008, putting him in contact with the newly elected Senate Majority Leader Amy Koch in 2010.

Though she had reportedly been a rising star in the Republican Party, Koch resigned on Dec. 15, 2011, and announced that she would not seek re-election.

Brodkorb, who was fired the next day, filed a gender discrimination claim against the state senate in March 2012. He said the Legislature fired him because he had been having an affair with Koch, but that similarly situated female employees who have relationships with male legislators do not face the same disciplinary action.

Sen. Cal Ludeman, secretary of the Minnesota Senate, announced the next day that Brodkorb's extortionate demand and attempt at "blackmail" had been rejected.

Brodkorb in turn sued Ludeman and the Minnesota Senate for discrimination and defamation.

With half of the 10 of the counts Brodkorb filed still remaining, the defendants moved to dismiss his claims under Section 1983 of the Civil Rights Act and his state-law claims for defamation and slander.

U.S. District Judge Susan Richard Nelson tossed those claims with prejudice Wednesday.

"In his notice of claims letter, Brodkorb had issued a demand for $500,000 and had also announced his intention to depose female legislative staff about their alleged extramarital affairs," Nelson wrote. "The statements in the challenged March 13 press release and the March 14 newspaper articles are similarly heated and full of bluster. In this specific context, the use of the verb 'extort' in the press release and newspaper articles, and the use of 'blackmail' as an adjective in the phrase 'blackmail negotiations,' or as a verb, while intemperate choices, cannot reasonably be interpreted to accuse plaintiff of engaging in the crimes of extortion and blackmail."

Citing precedent from the 1970 U.S. Supreme Court decision in Greenbelt Co-operative Publishing Association v. Bresler, Nelson said "no reasonable reader could read defendants' challenged statements and not understand that they referred to plaintiff's negotiating tactics."

"While Brodkorb distinguishes Greenbelt on the basis that the defendant was a newspaper publisher and not the actual 'speaker' of the remarks, the court finds such a distinction irrelevant," she added. "The Supreme Court's analysis, and the portions of the opinion relied on herein, focus on the use of the word 'blackmail' as stated by the actual speaker. For all of the reasons set forth above, the court finds that the statements at issue are not defamatory per se."

As to the claim under Section 1983, the judge agreed with the Minnesota Senate that it is an arm of the state, "not a 'person' for purposes of liability under § 1983."

"Brodkob's § 1983 claim must therefore be dismissed," she wrote.

He also failed to "allege specific, actionable conduct by Ludeman that would give rise to individual liability under § 1983," according to the ruling.

"Moreover, even assuming that the claim was alleged against Ludeman, Brodkorb does not allege that Ludeman - or anyone else - acted under color of state law, which is a required element for liability under § 1983," Nelson wrote. "At most, Plaintiff alleges that Ludeman delivered the news of Plaintiff's termination and did not offer an alternate position of employment. This is not the type of intentional conduct that supports a § 1983 claim. For all of these reasons, the claim is deficient and must be dismissed."

The court found that Nelson had also improperly joined the state of Minnesota as a defendant and struck it from the suit.

"Defendants argue that references to the state of Minnesota are not necessary to the issues in question because none of the claims in the complaint are actually asserted against the 'state of Minnesota,'" the 35-page ruling states.

Agreeing that there are no causes of action against the state, Nelson said "the inclusion of the state of Minnesota is not necessary to this action and may be stricken as impertinent."

She also struck references in the complaint to "Senate employees," finding such terms unnecessary and confusing since the allegations of the complaint identify other senators by name.

The remaining claims allege violation of the Minnesota Human Rights Act and the federal employment protections memorialized in Title VII of the Civil Rights Act.

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