By Marjorie Johnson, J.D.
Statements made about an HR director concerning her termination for violating the employer’s social media policy after she sent a tweet stating that “informal survey of our employees shows 100% AA employees Voting Trump!” did not plausibly constitute unlawful defamation or defamation per se. Though she argued that she and her tweet were repeatedly characterized “as being racist,” and a charge of racism would be considered disparaging to her character and adversely affect her ability to do business in HR, she didn’t assert that anyone ever called her a racist or otherwise explain how a “pro-Trump” tweet would equate to an act of racism. Granting the defendants’ partial motion to dismiss, a federal court in Pennsylvania also tossed her negligent supervision claim (Jungclaus v. Waverly Heights, Ltd., April 9, 2018, Kelly, R.).
“Anonymous” complaint about tweet. The HR director was fired from her position at a senior living facility, which she held for almost 20 years, after sending a tweet from her personal Twitter account in July 2016 stating: “@realdonaldtrump I am the VP of HR in a comp[any] outside of Philly[. A]n informal survey of our employees shows 100% AA employees Voting Trump!” About two months after she sent the tweet, the CEO told her that he had received an “anonymous letter” concerning the tweet but that she need not worry about being fired.
Social media policy. A week later, however, she was called into a meeting with the CEO and the chairman of the board and told that she was being fired for violating company’s social media policy—and that the board had voted unanimously in favor of her termination. The CEO (who she alleged had created a hostile and discriminatory work environment) then allegedly told her, “I don’t want you to think that we think you are a racist. That’s not the case.” She subsequently brought this lawsuit asserting claims under Title VII, the ADEA and the Pennsylvania Human Relations Act (PHRA), as well as for defamation and negligent supervision. At issue was the defendants’ motion to dismiss only the tort claims.
Mostly alleges defamation per se. She alleged that defamation occurred during conversations between the CEO and the board regarding her tweet. Defamatory statements were made to coworkers, residents, and third-party contractors, as well as during her unemployment compensation proceedings (in those proceedings a state court ultimately found she had not violated the employer’s social media policy and did not commit willful misconduct to bar receiving unemployment). Since she only claimed special harm from the talks between the CEO and the board, the remaining claims were analyzed under the standard for defamation per se.
CEO’s conversations with the board. Any defamation claims relating to the conversations between the CEO and the board were time-barred. Nevertheless, the HR director argued that they were relevant to show the “intent” of those who made non-time-barred comments, but she failed to offer any information regarding what was said. Her allegations only showed that she engaged in behavior that potentially violated a company policy and her supervisor brought the behavior to the attention of a “disciplinary committee,” which then decided to terminate her. Simply because the meeting attendees determined she should be fired did not mean that she was defamed.
“Racist” label would be disparaging. The court next examined whether any of the alleged statements to coworkers and other non-parties could constitute defamation per se relating to business misconduct. This occurs when the speaker imputes to another “conduct, characteristics, or a condition that would adversely affect the plaintiff’s lawful business or trade, and typically refers to conduct that is illegal or connotes illegal activity.” Here, the HR director claimed that defendants repeatedly characterized her “and her tweet as being racist” to others.
It could be reasonably inferred that she continued to pursue a HR career and as a result was susceptible to attacks on her character. Moreover, the term “racist” still has a “deplorable connotation in American culture,” and no reasonable person would wish to be described as such. Clearly, a charge of racism would be considered disparaging to the HR director’s character and adversely affect her ability to do business in HR.
Nobody called her racist. However, she didn’t assert a single instance of anyone calling her a racist, or saying that she was fired for being a racist. She only noted conversations that she had with former coworkers and management stating they heard she was fired for “violating the social media policy.” But statements that she was fired for violating the social media policy did not reach the level of business misconduct necessary to sustain a claim of defamation per se.
Tweet itself not enough. The court was also perplexed by her theory that a statement indicating that she was fired for “a violation of the social media policy” could imply that she was a racist. Even though she did not allege that people were told about the contents or the nature of her tweet, she appeared to imply that by sending a “pro-Trump” tweet, she was perceived as a racist. Because she offered no explanation for why she believed that a “pro-Trump” tweet would equate to an act of racism, this theory of defamation failed as well.
No defamation at unemployment proceeding. Finally, the court rejected her assertion that the defendants made defamatory statements about her to the employer’s attorney, who in turn published those defamatory remarks into filings before the unemployment compensation review board. The court rejected her “chain of defamation” argument and agreed with the defendants that statements made during the judicial proceedings were absolutely privileged.
Negligent supervision claim tossed. The court also dismissed her negligent supervision claim since it was preempted by the PHRA. Because the court dismissed her defamation claim, she could only advance the argument that negligence allowed the CEO to create a “discriminatory environment directed at women.” She accordingly failed to assert an independent cause of action that was not based in discrimination, her negligence claim was clearly preempted by the state statute.
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