Tuesday, December 13, 2011

Defamation Claim by fired employee and former employer's Qualified Privilege Defense

Qualified Privilege As a defense against a slander or libel claim in the termination-of-employment context
For a private individual to sustain a defamation claim, the plaintiff must prove that: (1) the defendant published a false statement about the plaintiff; (2) the statement was defamatory concerning the plaintiff; and (3) the defendant acted with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).
However, a qualified privilege to make a statement exists when “’the person making the statement . . . makes it in good faith on a subject matter in which the speaker has a common interest with the other person, or with reference to which the speaker has a duty to communicate to the other.’” Saudi v. Brieven, 176 S.W.3d 108, 118 (Tex. App.—Houston [1st Dist.] 2004, pet denied) (quotingGrant v. Stop-N-Go Mkt. of Tex., Inc., 994 S.W.2d 867, 874 (Tex. App.—Houston [1st Dist.] 1999, no pet.)). This privilege does not apply if the information is furnished to others that do not share the common interest. Id.; see Dun & Bradstreet, Inc. v. O’Neil, 456 S.W.2d 896, 898-99 (Tex. 1970).
 “The privilege is also defeated if the defendant makes the statement with actual malice.” Saudi, 176 S.W.3d at 118 (citing Grant, 994 S.W.2d at 874). “’The privilege is abused if the statement is made with actual malice—that is, it is made with knowledge of its falsity or with reckless disregard as to its truth.’” Id. (quoting Grant, 994 S.W.2d at 874); see Freedom Newspapers of Tex. v. Cantu, 168 S.W.3d 847, 858 (Tex. 2005) (stating that “hatred, spite, ill will, or desire to injure” is not proof of actual malice). “Malice . . . cannot be inferred from falsity of the statement alone.” Martin v. Sw. Elec. Power Co., 860 S.W.2d 197, 200 (Tex. App.—Texarkana 1993, writ denied). “An uncontroverted affidavit by the person publishing the statement that indicates the statement was not made with actual malice is sufficient to meet the burden to negate actual malice as a matter of law.” Associated Press v. Cook, 17 S.W.3d 447, 458 (Tex. App.—Houston [1st Dist.] 2000, no pet.); see Mitre v. La Plaza Mall, 857 S.W.2d 752, 754 (Tex. App.—Corpus Christi 1993, writ denied).
Essentially, qualified privilege is an affirmative defense in which [FORMER EMPLOYER / DEFENDANT] bore the burden of conclusively establishing each element of the privilege to prevail on its summary-judgment motion with respect to [TERMINATED EMPLOYEE-PLAINTIFF]’s defamation claim. See Bryant v. Lucent Techs., Inc., 175 S.W.3d 845, 852 (Tex. App.—Waco 2005, pet. denied).

To establish the affirmative defense of qualified privilege, [EMPLOYER-DEFENDANT] must show that the alleged defamatory statement: (1) was made without malice; (2) concerned a subject matter of sufficient interest to the author or was in reference to a duty owed by the author; and (3) was communicated to another party with a corresponding interest or duty. See id. (citing Saudi, 176 S.W.3d at 118; Austin v. Inet Techs., Inc., 118 S.W.3d 491, 496 (Tex. App.—Dallas 2003, no pet.); San Antonio Credit Union v. O’Connor, 115 S.W.3d 82, 99 (Tex. App.—San Antonio 2003, pet. denied)).
In determining whether the standard for actual malice in a defamation action has been satisfied, “the reviewing court must consider the factual record in full.” Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002). “[T]he boundaries of actual malice, and particularly reckless disregard, cannot be fixed by the defining words alone but must be determined by the applications of those words to particular circumstances.” Id. at 592. In other words, actual malice can be proven through circumstantial evidence. Id. at 591.
SOURCE: WACO COURT OF APPEALS - 10-11-00257-CV – 12/7/11

Based on the foregoing, we conclude that: (1) [EMPLOYER-DEFENDANT], GroupOne, and Little all had a common interest in the information complained about; (2) the record does not demonstrate that [EMPLOYER-DEFENDANT] maliciously disclosed [TERMINATED EMPLOYEE-PLAINTIFF]’s termination information to GroupOne; (3) [EMPLOYER-DEFENDANT] established its qualified privilege; and (4) [TERMINATED EMPLOYEE-PLAINTIFF]’s summary-judgment evidence does not create a material fact issue as to the elements of [EMPLOYER-DEFENDANT]’s qualified privilege. See Saudi, 176 S.W.3d at 118; Bryant, 175 S.W.3d at 852; O’Neil, 456 S.W.2d at 898-99. As such, we conclude that [EMPLOYER-DEFENDANT] was entitled to summary judgment as a matter of law as to [TERMINATED EMPLOYEE-PLAINTIFF]’s defamation claim. See TEX. R. CIV. P. 166a(c); Grant, 73 S.W.3d at 215; see also Saudi, 176 S.W.3d at 118; Bryant, 175 S.W.3d at 852. And, we cannot say that the trial court erred in granting [EMPLOYER-DEFENDANT]’s traditional motion for partial summary judgment. We overrule [TERMINATED EMPLOYEE-PLAINTIFF]’s third and fourth issues.

SOURCE: WACO COURT OF APPEALS - 10-11-00257-CV – 12/7/11

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