By Marjorie Johnson, J.D.
A Filipino-American employee, who was fired for “extremely egregious” behavior after he admittedly tied nooses at work, plausibly alleged that his termination letter was defamatory. A federal court in California determined that if management’s use of the term “egregious” implied that he was aware of the association nooses had with the persecution of African-Americans when he hung them (which he denied)—and thus intended to harass African-American coworkers—then the letter could be interpreted as asserting a fact capable of being proven true or false. The employee’s emotional distress claim also advanced to the extent it was based on defamatory publications, but his wrongful discharge claim failed (Galarpe v. United Airlines, Inc., April 2, 2018, Chen, E.).
Fired following “noose” incidents. After 30 years on the job, United Airlines terminated the employee because he admittedly tied nooses with jet engine packing rope during idle time at the end of his shift over two consecutive days. His termination letter stated in relevant part: “Your actions are contrary to expectations for behavior set forth for all United employees. On two different occasions you made a noose in the workplace and both times displayed the noose in an area where it was likely to be seen and perceived as threatening and intimidating by co-workers. Because such imagery is so closely associated with violent executions and hate crimes, the Company strictly prohibits it in the workplace. Thus, after considering all of the facts and your extremely egregious behavior, I have decided to terminate your employment…”
Allegedly branded as racist. The employee claimed he was “not aware of the negative connotation of the noose in the context of racism in America,” because he “was born in the Philippines and came to the United States at the age of ten.” He further alleged that United fired him knowing he harbored no malicious intent and instead acted based the perception of Filipino people as “compliant and malleable.” He also claimed the company defamed him by branding him “a racist hate monger” and humiliated him by escorting him from the building in front of coworkers. Finally, though a labor arbitrator found that his actions merited discipline but not termination, and reinstated him with back pay, he claimed he suffered age and disability bias upon his return.
Was calling conduct “egregious” defamatory? The court declined to dismiss the employee’s defamation claim asserting that his termination letter contained “false statements” which effectively called him “a racist hate monger” or associated him with racism, bigotry, and discrimination. As to whether he plausibly alleged a defamatory statement, there was a critical issue as to whether United’s calling his behavior “extremely egregious” was merely an opinion or implied a “provably false assertion of fact,” since the employee contended it effectively branded him a racist and accused him of a hate crime. If the use of the term “egregious” implied that he was aware of the association nooses had with the persecution of African-Americans when he hung them, and thus acted with the intention of harassing his African-American coworkers, then it could be interpreted as asserting a fact capable of being proven true or false.
Either an opinion or assertion of fact. The court reasoned that since Merriam-Webster defines “egregious” as “conspicuous; especially: conspicuously bad,” the word itself did not per se convey any information about the employee’s intentions or state of mind (unlike “maliciously”). Nevertheless, under the circumstances here, it was capable of being reasonably understood in at least two ways. First, it was possible that United considered all nooses in the workplace to be “egregious” due to their history, regardless of the person’s intentions or knowledge. In that case, the term would be an opinion and would not imply any facts about the employee.
On the other hand, the term “egregious” could also be construed to mean that the employee fashioned the noose with knowledge of its hateful and hurtful connotations. This understanding reasonably implied an assertion of fact about his state of mind, particularly where the termination letter itself did not disclose either that he denied awareness of such hateful connotations or that United’s investigator believed him. Thus, since the statement was “susceptible of both an innocent and a libelous meaning,” he sufficiently alleged a defamatory statement.
Plausibly alleged publication. Though he did not specifically identify anyone who received the termination letter, the fact that it indicated that it was copied to at least three entities (”IBT, SFOLR, SFOHR”) was enough to allege publication. While United argued that publication to those entities and to any other United employees would have been protected by a qualified privilege, such a determination would rest on facts like who received the letter, whether that person had a legitimate interest in receiving it, and whether the motive in sharing it was innocent.
Wrongful termination claim tossed. However, he failed to advance his wrongful discharge claim, which was premised on United’s alleged violation of California’s Fair Employment and Housing Act, because he failed to plausibly allege that discriminatory animus was a substantial factor in his termination. Rather, he merely made the conclusory allegation that United’s acts were “based on a perception of Filipino people as compliant and malleable” without alleging any underlying facts or explaining how the alleged stereotype was linked to his termination.
Remaining claims. The court also dismissed his intentional infliction of emotional distress claim insofar as it was based on the alleged humiliation caused his being escorted out of the building, which was not “extreme and outrageous conduct,” but his emotional distress claim based on defamation advanced. Additionally, the court allowed him to amend his complaint to assert that he suffered age and disability bias and retaliation following his reinstatement.
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