Connecticut’s Employer Defamation Defense
The Connecticut Supreme Court unanimously held that an employer will be liable for defamatory intra-company communications made with either “actual malice” or “malice in fact.” Gambardella v. Apple Health Care, Inc., 291 Conn. 620 (2009). A statement made with “actual malice” is one made with actual knowledge of its falsity or with reckless disregard for its truth. A statement made with “malice in fact” is one made with bad faith or improper motive. Proving actual malice is more difficult.
In this case the plaintiff worked for an extended care facility. After the death of a facility resident, the resident’s relative told the plaintiff she could dispose of the late resident’s furniture and other personal property in any manner she wished. The plaintiff kept two chairs and the rest was used elsewhere in the facility. Management claimed her keeping of the chairs violated the company’s policy against stealing even though the resident’s relative informed investigators that she had given the furniture to the plaintiff. Instead of taking disciplinary action against the plaintiff under a rule calling for a three day suspension for accepting gifts, it terminated her for stealing. It communicated the stealing decision to others in the facility and plaintiff brought a defamation suit.
The company defended itself by claiming a well established qualified privilege, which permits managers to make intra-company comments regarding employment issues, even those of a defamatory nature, when required for the effective flow of communication. This qualified privilege, however, is lost when the statements are made with malice. The issue in this case was whether the plaintiff had to show the statements were made with the higher “actual malice” standard or lower “malice in fact” standard.
The Court held either standard suffices; therefore, an employee need not prove the statements were knowingly false, only that they were made with either ill will or some improper or unjustifiable motive. Here, because the company clearly knew the employee had not stolen the property, the Court found it acted with actual malice. It pointed out that its actions also met the “malice in fact” standard because its statements were inconsistent with any honest interpretation of the facts, and a defendant cannot insulate himself by merely claiming he believed his unlikely statements were true.
While managers are still protected by the qualified intra-corporate communications privilege, they must exercise caution when selecting the precise reason for a termination decision, and must limit any discussion of the decision to those with a business need to know.
