Employment Law Daily Because statement that applicant was ‘not forthcoming’ about prior criminal case was not false, $750K defamation award, punitives reversed
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Wednesday, February 13, 2019

Because statement that applicant was ‘not forthcoming’ about prior criminal case was not false, $750K defamation award, punitives reversed

By Kathleen Kapusta, J.D.

Reversing a $750K award of punitive damages on the applicant’s state-law claim as well as the $750K defamation award, the court noted that there was “scant case law” applying the statute to “facts remotely like those we have here.”

Reversing a $750,000 judgment on a defamation claim in favor of an applicant for the position of Fitchburg police chief, the First Circuit found that a statement attributed to the mayor after she withdrew his nomination for the job—that he was not forthcoming about an earlier court case involving criminal charges against him—was not false. And although the court affirmed judgment in his favor on his Chapter 151B criminal history discrimination claim under Massachusetts law, in which he asserted that the city violated his rights under the statute by basing its decision not to hire him on his failure to disclose the criminal case against him, it also reversed the $750,000 award of punitive damages (Heagney v. Wong, February 11, 2019, Barron, D.).

Resume incomplete; application misleading. On his resume accompanying his application for the police chief position, the applicant did not list his prior employment as an officer in the Falmouth police department where, after being fired by the Franklin police department, he had worked from 1990 to 1993. Nor did he list his prior employment at the Attleboro police department, where he had worked from 1985 to 1987. And on his application, he answered “no” to questions regarding whether he had ever been disciplined, fired, or forced to resign because of misconduct or unsatisfactory employment.

Anonymous letter. He was ultimately chosen by the mayor as the finalist but before she could officially nominate him, he had to pass a background check. While that was in progress, the mayor received an anonymous letter stating that the applicant had been involved in various incidents of misconduct at the Attleboro, Falmouth, and Franklin police departments and had been charged with various criminal offenses related to pistol whipping his ex-girlfriend when he was 21. The mayor subsequently asked him to withdraw his application, and when he refused, she withdrew her nomination of him for the position.

Newspaper coverage. An article in the local newspaper stated that “Now, [the mayor] claims the 46-year-old ATF agent, who runs the Rochester, N.Y., office, was not forthcoming on his resume about his work experience or about a court case on alleged assault and battery and other charges when he was 21.” The city subsequently received his personnel files from the ATF and the Falmouth and Attleboro Police Departments, which included information related to the court case—including that it ended in his acquittal. The files also revealed other disciplinary actions that had been taken against him by police departments at which he had previously worked.

Defamation claim. He subsequently sued for defamation and violation of Chapter 151B, which provides that it is unlawful for an employer to discriminate against any person by reason of his or her failure “to furnish information through a written application or oral inquiry or otherwise regarding . . . an arrest, detention, or disposition regarding any violation of law in which no conviction resulted.” The case went to a jury, which found for him on his defamation claim and awarded him $750,000 in damages.

After-acquired evidence. The jury also found Fitchburg liable, in violation of Chapter 151B, for discriminating against the applicant because of his failure to disclose the information concerning the criminal case against him. It found, however, that based on after-acquired evidence of administrative actions that had been taken against him by the other police departments, Fitchburg would have refused to hire him on the basis of that evidence alone and thus independently of the fact that he had not disclosed the criminal case. As a result, the jury did not award him any compensatory damages on the Chapter 151B claim. It awarded him $750,000 in punitive damages, however.

“Not forthcoming.” On appeal, the mayor argued that the applicant was, in fact, “not forthcoming” about the court case involving the criminal charges, in the ordinary sense of being “not forthcoming,” because at no point did he bring the case to her attention or the attention of the search committee. Thus, she contended, the statement could not ground a defamation claim because it was true. Agreeing that under the ordinary construction of the phrase “not forthcoming,” she was right, the court pointed out that he knew a background check would be conducted and yet never alerted the mayor of the allegations.

But legally allowed to withhold information. While the applicant argued that the statement was false because under Chapter 151B, he was legally allowed to withhold information about the prior criminal charges of which he was acquitted, Chapter 151B was not relevant to whether the statement was true or false. Whether or not, under Chapter 151B, his failure to furnish the information could lawfully provide the basis for the mayor’s decision to withdraw his nomination did not bear on whether he was in fact forthcoming in regard to that information. Because the statement was not false, the court reversed judgment on the defamation claim.

Chapter 151B. As to the applicant’s claims under Chapter 151B, the city contended that the lower court erred in issuing a mixed-motive instruction. To determine whether the evidence sufficed to warrant the mixed-motive instruction—and, relatedly, whether the evidence sufficed to support a finding of liability under that instruction—the court had to consider the evidence regarding the mayor’s motivation for deciding to withdraw his nomination.

A jury could reasonably infer from the evidence that she had already made up her mind not to nominate him at the point that she called him to ask him to withdraw his name, so the court found a reasonable jury could infer that it was his failure to disclose the criminal case that motivated her decision. Thus, there was no reason to reverse the district court’s determination that he met his burden to “first . . . present a convincing case that there [wa]s an illegitimate motive present.”

Next, the court found that Fitchburg failed to show it had a lawful nondiscriminatory reason to exclude him as an applicant and that this reason standing alone would have caused it to make the same decision. While it pointed to the applicant’s omissions regarding his prior employment history, there was evidence he had told the mayor about this during a phone interview and she was ready to nominate him anyway. Consequently, the record did not support Fitchburg’s contention that no reasonable jury could find that the mayor’s motives were mixed.

After-acquired evidence instruction. Next, Fitchburg challenged the jury instruction on after-acquired evidence on the ground that it erroneously stated that the jury could consider the after-acquired evidence solely for the limited purpose of assessing damages and not also for the purpose of assessing liability. It conceded that there is much precedent in “wrongful discharge” cases limiting the consideration of after-acquired evidence only to the assessment of damages and not liability.

It did not, however, point to a single case that has permitted an employer to rely on after-acquired evidence to defeat a plaintiff’s showing of liability for discrimination, whether the discrimination motivates a “failure to hire” or a “wrongful discharge.” To the contrary, said the court, precedent seems to bar an employer from doing so. Thus, the district court did not err in rejecting Fitchburg’s contention that its instruction to the jury not to consider the after-acquired evidence in determining liability under Chapter 151B required a new trial.

Punitive damages. Fitchburg also argued that the evidence was insufficient to support a punitive damages award. The applicant, however, countered that the evidence showed the mayor, a public official, knowingly violated Chapter 151B, and this knowledge alone permitted a reasonable jury to find her conduct was “outrageous and egregious” enough to warrant punitive damages. Finding the applicant did not make the requisite showing of knowledge, the court noted that none of the evidence he relied upon addressed a situation in which, as was the case here, an employer does not ask an applicant directly about a prior criminal case but learns of it independently from a third party.

High degree of uncertainty. Further, said the court, there is “scant case law” in Massachusetts interpreting the Chapter 151B provision at issue, let alone any case law applying that statute to facts remotely like those here. “We have here then a high degree of ‘uncertainty of the state of the law in Massachusetts’ regarding the conduct at issue,” observed the court, concluding that no reasonable jury could find the mayor intentionally or willfully violated Massachusetts law such that, for that reason alone, the conduct at issue was outrageous or egregious enough to warrant punitive damages.

And while the applicant argued that the mayor lied at trial by denying that she had read the anonymous letter, that she had withdrawn the nomination because of his failure to disclose the criminal case, and that she had told the reporter the same, the court stressed that the jury found he suffered no actual harm from the Chapter 151B violation and awarded no compensatory damages to him. To the court this counseled, at least to some extent, against the imposition of punitive damages, especially where as there was no basis for a reasonable jury to find the city “was aware that the discriminatory conduct would likely cause serious harm, or recklessly disregarded the likelihood that serious harm would arise.”

And while he pointed to some precedent supporting the notion that a jury may award punitive damages on the basis of a public official’s conduct at trial, the mayor’s account at trial was that she decided not to nominate the applicant because he had lied on his resume and application materials regarding prior employment, and the jury found that her statement that he was “was not forthcoming on his resume about his work experience” was true. She did not actively fabricate an allegation of misconduct to use as an excuse for her decision not to nominate him. Accordingly, the court reversed the award of punitive damages.

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