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

Defamation claim based on job reference by former employer & qualified privilege, immunity defense

ELEMENTS OF DEFAMATION CLAIM To maintain a defamation cause of action, the plaintiff must prove that the defendant: (1) published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting 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. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)). To prevail on its motion for summary judgment, a defendant must disprove at least one essential element of the plaintiff's defamation claim or establish all of the elements of an affirmative defense as a matter of law. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Montgomery, 669 S.W.2d at 310-11. Because it is dispositive, the first ground of Rosban's traditional summary judgment motion that we consider is the affirmative defense of immunity from Graham's defamation claim under the labor code. STATUTORY IMMUNITY FROM DEFAMATION LIABILITY FOR JOB REFERENCES "An employer may disclose information about a current or former employee's job performance to a prospective employer of the current or former employee on the request of the prospective employer or the employee." Tex. Lab. Code Ann. § 103.003 (West 2006). "Job performance" is defined as "the manner in which an employee performs a position of employment and includes an analysis of the employee's attendance at work, attitudes, effort, knowledge, behaviors, and skills." Id. § 103.002(3). Employers are immune from civil liability for making disclosures about current or former employees' job performance:

An employer who discloses information about a current or former employee under Section 103.003 is immune from civil liability for that disclosure or any damages proximately caused by that disclosure unless it is proven by clear and convincing evidence that the information disclosed was known by that employer to be false at the time the disclosure was made or that the disclosure was made with malice or in reckless disregard for the truth or falsity of the information disclosed. For purposes of this subsection, "known" means actual knowledge based on information relating to the employee, including any information maintained in a file by the employer or that employee. Id. § 103.004(a).

When a defendant seeks summary judgment based on qualified privilege, it is the defendant's burden to conclusively establish that his allegedly defamatory statement was made with an absence of actual malice. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995).

In the defamation context, a statement is made with actual malice when it is made with knowledge of its falsity or with reckless disregard as to its truth. Id. at 646. Reckless disregard exists when "the defendant in fact entertained serious doubts as to the truth of his publication" or had a "high degree of awareness of . . . [the] probable falsity of his statements." Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002) (quoting Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989)).

Actual malice with regard to a defamatory statement involves a higher level of culpability than mere ill will or animosity. Akin v. Santa Clara Land Co., 34 S.W.3d 334, 341 (Tex. App.--San Antonio 2000, pet. denied). Negligence, failure to investigate the truth or falsity of the statements prior to publication, or failure to act as a reasonable prudent person is insufficient. Id. at 341-42.

SOURCE: 03-07-00317-CV (Austin Court of Appeals) (10/14/09) (statement about former employee's refusal to take drug test not actionable) (evidence is sufficient to conclusively establish that [former employer's] statements were made without malice or reckless disregard for their truth or falsity. See New Times, Inc. v. Issacks, 146 S.W.3d 144, 164 (Tex. 2004) (affidavits from interested witnesses may negate actual malice as a matter of law if they are "clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies, and [able to be] readily controverted. Tex. R. Civ. P. 166a(c)").