‘Ho, Ho, Ho’ Isn’t for Everybody, Judge Finds

     PITTSBURGH (CN) – A woman who wore an elf costume to a plasma-donation center days before Christmas may have a case for defamation because staffers allegedly called her a “ho” and a barrage of other naughty words, a federal judge ruled.




     Fresh from a Christmas party, Rhonda Mitchell says she was dressed as a North Pole sprite when she and her uncle visited a PlasmaCare facility in Pittsburgh looking to earn some extra holiday cash.
     Mitchell claimed in a pro se December 2010 suit that her request to donate plasma was met with harsh name-calling by the company’s puerile employees, who labeled her a “ho,” “prostitute,” “tramp” and “bitch.”
     When Mitchell’s uncle, co-plaintiff John Stubbs, “shouted out for everyone to back off and that Ms. Rhonda Mitchell is his eldest niece,” a PlasmaCare employee opined that she was “probably … ‘fucking her uncle too,'” according to the suit.
     Mitchell said the incident became a running joke at the center, and that she was subsequently approached by strange men who alluded to the ordeal and propositioned her for “sexual services.”
     Stubbs said he got into a physical fight at a picnic after someone asked him whether his niece was a “ho,” then continued that “she must be a ‘Ho,'” given that she was “fucking” her uncle.
     Cincinnati-based Plasmacare filed a motion to dismiss, characterizing the statements as “nothing more than opinions and name-calling” and “no more than rhetorical hyperbole or a vigorous epithet.”
     Plaintiffs responded that the statements were far more serious, as they insinuated that the two were involved in the criminal acts of prostitution and incest.
     Statements of “pure opinion” are not actionable under Pennsylvania defamation law, but statements of “mixed opinion,” which imply that undisclosed, defamatory facts form the basis for the uttered opinion, are actionable, according to a June 2 ruling.
     Since the PlasmaCare employees’ statements were of the mixed-opinion variety, U.S. District Judge William Standish refused to dismiss the claims.
     No basis was given for the statement that Mitchell was probably “fucking her uncle,” according to the 16-page opinion.
     “Where an opinion does not identify the facts on which it is based … it implies the existence of undisclosed facts and is actionable,” Standish wrote.
     “At this point in the proceedings, based on allegations stated in the complaint, we must assume that Ms. Mitchell is not a prostitute and that she and Mr. Stubbs have not committed incest,” he added. “We further conclude that the statements allegedly made by defendant’s employees could be viewed as statements of mixed opinion.”
     The judge acknowledged that vulgar name-calling uttered by angry people during altercations does not necessarily suggest defamatory intentions.
     But in this case, “there is nothing in the complaint from which the court can infer, for example, that there was any prior animosity between defendant’s employees and plaintiffs, nor that the comments were made in the course of an argument when such terms might be used as vulgar outbursts or epithets,” the judge wrote.
     PlasmaCare’s answer to the complaint is due June 24.
     A supervisor at its Pittsburgh facility said she could not comment on the case.
     Calls to a public-relations specialist at Spanish plasma giant Grifols, which bought PlasmaCare in 2006, were not immediately returned.
     PlasmaCare’s attorney said he could not comment on pending litigation.
     Mitchell and Stubbs could not be reached for comment.

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