Maryland appeals court clarifies when an employee expressing fear of being harmed by a co-worker is protected from being held liable for defamation
We often hear of situations in which an employee is feared by others to pose a threat to co-workers in a workplace. It is not uncommon for HR directors to learn of employees’ concern about perceived threats posed by a co-worker. In July 2017, the Maryland Court of Special Appeals issued a decision addressing the complex legal questions that arise when one employee tells another that he or she has safety concerns about a co-worker.
In Lindenmuth v. McCreer, the plaintiff was employed as a mechanic, and the defendant was the lead mechanic in the same shop, with supervisory authority over Lindenmuth’s work. Lindenmuth’s manager and supervisors brought several performance mistakes to Lindenmuth’s attention. His manager advised him to take time off from work due to his stress level. Another mechanic in the same shop heard rumors from co-workers that Lindenmuth was going to return to work, and had a concealed carry firearms permit. He expressed concern to the defendant that Lindenmuth was going to shoot someone at work upon his return. It was common knowledge within the mechanic shop that Lindenmuth owned firearms, and that he had a concealed carry permit. Defendant McCreer went to company management and relayed the employee’s concerns about Lindenmuth, and described prior conversations in which employees alleged that Lindenmuth described wanting to commit violent acts, including the shooting of police officers. Lindenmuth thereafter returned to work and saw that his photograph had been placed in the guard shack, with a note indicating that he was not allowed access to the facility.
Lindenmuth filed a lawsuit for defamation, “invasion of privacy-unreasonable publicity given to private life,” “invasion of privacy-false light,” and intentional infliction of emotional distress. During the course of the litigation process prior to trial, the trial court granted summary judgment in favor of the defendant, finding that Lindenmuth had not brought forth facts sufficient to allow him to prevail at trial, even if all facts were as he alleged them to be. On appeal, the Court of Special Appeals provided a detailed analysis of the evidence that a plaintiff needs to bring forward to state an actionable claim under each of the causes of action asserted by Lindenmuth. The appellate court upheld the trial court and found that Lindenmuth could not prevail on the facts brought forth in the litigation discovery process.
Defamation is often more difficult to prove than is generally understood by the public. Under Maryland law, it is not sufficient to simply show that a false statement was made about someone. To establish an actionable claim for defamation, a plaintiff must allege and show that: (1) the defendant made a defamatory statement to a third person, (2) the statement was false, (3) the defendant was legally at fault in making the statement, and (4) the plaintiff suffered harm as a result of the statement. A defamatory statement is one which tends to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or from associating or dealing with, that person. It is the plaintiff’s burden to prove that a particular statement at issue was false.
If a plaintiff meets his or her burden of proving all the above elements, the defendant can escape liability if he or she proves that a recognized privilege existed at the time of the statement, which excused the defamatory statement. A privilege allows a person to make a defamatory statement in furtherance of some interest of social importance that is entitled to protection. Some privileges are absolute, and others are qualified. A qualified privilege (also known as a conditional privilege) may defeat a claim of defamation as long as the defendant did not abuse the privilege. Maryland courts have recognized four common-law privileges against defamation: (1) a “public interest” privilege to publish material to public officers on matters within their public responsibility, (2) a privilege to publish to someone who shares a common interest, or to publish in defense of oneself or in the interest of others, (3) a “fair comment” privilege, and (4) a privilege to make a fair and accurate report of public proceedings.
The court found that Lindenmuth’s defamation claim had to fail because he could not demonstrate that McCreer’s statements were false. It was undisputed by the parties that McCreer accurately relayed to his supervisor what a co-worker told him about Lindenmuth. There appears not to have been a dispute over whether the employee was concerned about Lindenmuth coming to the workplace to shoot someone, or over whether this employee shared his concerns with McCreer. Without evidence that McCreer’s statements were false, the defamation claim could not succeed.
In a more interesting part of the decision, the court went on to opine that, even if Lindenmuth could have proven all four elements of his defamation claim, the defendant still would not have been liable if he established that a privilege applied – and the appellate court agreed with the trial court that a conditional privilege would have been applicable here. Specifically, the court found that McCreer’s statements to management were protected by the common interest privilege because they were made in furtherance of the common interests shared among McCreer and other employees. The communication between McCreer and management arose out of the employer-employee relationship, between people engaged in a common enterprise or activity. The court found that a supervisory employee has an interest in the safety of other employees as well as himself, and McCreer shared this interest with the person to whom he spoke. The court provided a detailed explanation of the standard of proof necessary to show that a qualified privilege has been abused, and found that no facts were present in this case from which a court could find that abuse negated the conditional privilege.
The court also discussed the elements of the two invasions of privacy torts and of the intentional infliction of emotional distress claim and found that the trial court did not err in ruling against the plaintiff on these claims, either.
The Lindenmuth decision gives some comfort to companies wrestling with how to address employee concerns about personal safety and provides further clarity on what must be established by a plaintiff, under Maryland law, to successfully assert a defamation claim or a privacy tort claim when the statements in question relate to workplace safety.
For assistance with claims asserted by employees or former employees against companies or co-workers for defamation or invasion of privacy, contact the Law Office of Steven J. Lewicky.
People often think that any false statement asserted about a person is defamatory. In fact, the law of defamation is complicated, and different standards apply to public figures and to private citizens outside of public life.
To successfully make a case of defamation in Maryland, you must establish that the accused defendant made a defamatory statement to a third person, that this statement was false, that the defendant was legally at fault in making the statement, and that the plaintiff suffered harm as a result of the statement’s publication. A statement is only “defamatory” if it tends to expose a person to public scorn, hatred, contempt, or ridicule, and thereby discourages the community from having a good opinion of, or associating with, the person that was the subject of the statement. Even if a statement is defamatory, a defendant still may raise what is known as a “qualified” or “conditional” privilege from being held responsible and thereby be excused for the defamation if the defense is proven.
One form of conditional privilege is the First Amendment privilege. The U.S. Supreme Court established decades ago that statements pertaining to public figures on matters of public concern are excepted from defamation liability, unless the speaker or writer had actual knowledge that the statement was false, or acted with reckless disregard for the truth. This is a very high standard of proof and makes it very difficult for a public figure to win a defamation action.
Private citizens that are not public figures do not have to overcome this First Amendment privilege to prevail in a defamation action, but there are other privileges, arising under the common law, that may derail a defamation action brought against a private person. There is a “public interest” privilege, for example, permitting persons to communicate to public officials about matters that are within their public responsibility. There is a privilege to communicate with someone who shares a common interest or to make statements in defense of oneself, or in the interest of others. There is a “fair comment” privilege, and a privilege to make a fair and accurate report of public proceedings. The breadth of these common-law privileges is not precisely defined by case law.
On November 22, 2016, the Maryland Court of Appeals issued a decision clarifying one aspect of defamation law: In cases of private defamation, the plaintiff has the burden of proving the falsity of the allegedly defamatory statement. If the defendant asserts a common law conditional privilege, the plaintiff also bears the burden of overcoming that privilege. The Court, in this recent case, has now clarified that the standard of proof that the plaintiff must meet in overcoming a conditional privilege is proof by a preponderance of the evidence. This decision establishes that a plaintiff in such a case need not meet the higher standard of overcoming a conditional privilege by clear and convincing evidence, which is required in some other states.