Employment Law Daily No defamation where letter to employee, statement to EEOC about reasons for discharge were not ‘published’
Monday, February 5, 2018

No defamation where letter to employee, statement to EEOC about reasons for discharge were not ‘published’

By Marjorie Johnson, J.D.

An African-American employee couldn’t show he suffered damages as the result of his employer’s allegedly defamatory statements made after it fired him due to his dishonesty during an internal investigation. The several post-termination statements that he claimed were defamatory—including a letter from the VP of human resources detailing the reasons for his discharge and the company’s position statement to the EEOC—were never “published” and his claim for damages was completely at odds with the evidence (Javery v. Lockheed Martin Corp., January 26, 2018, Zainey, J.).

The employee filed this lawsuit asserting race bias after Lockheed Martin terminated him for his alleged dishonesty during an internal investigation. The investigation revealed that he tried to circumvent an established reporting procedure in order to bolster performance data being reported to NASA. He also included a defamation claim asserting that the accusations against him were untrue and injurious to his reputation.

The court granted Lockheed’s motion for summary judgment as to his Title VII claim, while also finding that he sufficiently established defamation per se with regard to at least one of seven allegedly defamatory communications. At issue was Lockheed’s motion for summary judgment on his defamation claim based on his inability to prove damages. In granting the motion, the court examined each specific communication at issue.

Post-termination HR letter. After his termination, the employee appealed the decision to an internal executive review committee. The VP of HR subsequently sent him a letter (HR letter) advising him that his appeal had been denied. Recounting, in detail, the accusations of serious wrongdoing that led to his termination, the letter formed the basis of the court’s earlier determination that this case involved defamatory per se statements.

Lockheed now contended that the letter was not “published” since it was undisputedly mailed directly to the employee and was not published to any other party. The employee countered that “publication” had occurred because Lockheed filed a copy of the letter into the public record as an exhibit to its prior motion for summary judgment. However, when he originally filed his lawsuit, his complaint stated: “Following the Plaintiff’s suspension and pre-termination, the Defendant’s investigator(s) told NASA (verbally and in writing), as well as other unprivileged persons that the Plaintiff had falsified reporting records, processes and data regarding the preventative maintenance budget data and that when asked about the January 2014 data, the Plaintiff lied about this to the investigator(s).”

Thus, since the defendant’s “publication” of the HR letter occurred several months after he filed the lawsuit, it could not form the basis of his defamation claim. Rather, he made the allegations against him public by filing a lawsuit (which he had every right to do). Thus, because he could not establish publication to a third party as to the HR letter, it could not support his defamation claim since no injury or damage can result from a non-published statement.

Letter to EEOC. The employee also pointed to the position letter that Lockheed submitted to the EEOC in response to his charge. Footnote 1 of the front page stated that Lockheed “considers this position paper to be confidential and highly sensitive” and the document explained the factual basis for his termination. However, defamatory per se statements were lacking and the employee had no evidence that the letter was “published” to anyone other than the EEOC staff.

Senior management meeting. The employee also contended that he was defamed when a senior manager announced the employee’s termination at a staff meeting. However, he was not present at the meeting and had not spoken to anyone who attended, and thus had no personal knowledge of what the manager said. Moreover, the manager’s statements to senior staff at the internal meeting, which occurred within the course and scope of her employment, did not constitute publication under Louisiana law.

Unemployment benefits. The employee also claimed that someone at Lockheed told the State of Mississippi that he was terminated for “misconduct” in reference to his claim for unemployment benefits. However, he did not know the content of the statements, whether they were oral or written, who made them, or who received them. The court held that this statement was not defamatory per se.

DOD/Security Clearance. According to the employee, one of the most damaging results from Lockheed’s statements regarding the reason for his termination was that he had secret security clearance through the Department of Defense and would now be unable to maintain that in the future, thereby eliminating him from the job market in the federal sector. However, he admittedly speculated that Lockheed even made any defamatory statements to the DOD, his security clearance expired with the passage of time, and he never attempted to renew it. In sum, his entire theory as to this aspect of his claim was “speculation built on more speculation.”

OIG investigation. After his termination, the employee filed an administrative complaint with the NASA Office of Inspector General (OIG). He contended that counsel for Lockheed defamed him during an employee interview arising out of an OIG investigation by stating that he committed fraud. However, the transcript of the interview revealed that the attorney never said that he engaged in fraud. Additionally, the allegedly tortious conduct occurred after this litigation was already pending so it could not form the basis for his defamation claim. He also failed to show how this interview during a confidential investigation was “published.”

Unsupported damages claim. The employee’s claim for damages was also completely at odds with the evidence. His bid for over $200,000 in backpay and over $3 million in front pay was based on the assumptions that he would never work again, but he could not establish that his inability to work was due to defamation at the hands of Lockheed. Indeed, he obtained employment as a project manager with another company shortly after Lockheed terminated him, and lost that job for reasons unrelated to Lockheed. He also failed to show he lost his job at Lockheed because he was defamed.

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