Woman can sue since boss’s comments ‘published’

A police department employee may sue her supervisors for defamation for comments they made during a dispute over her extra hours.

When the supervisors disciplined Jeannie Kuley for allegedly working unapproved overtime in violation of Fairfax County policy, she pursued a grievance. Grievance procedure responses from Kuley’s direct supervisor, Saly J. Fayez, and from Shawn M. Barrett, commander of the Criminal Investigations Bureau, included 19 statements Kuley labeled defamatory.

Employers have a qualified privilege to discuss employee job performance, but the boundaries for that privilege may be less than clear in a given case, as shown by the Fairfax Circuit Court opinion in Kuley v. Fayez (VLW 014-8-098).

Fairfax Circuit Court Judge Charles J. Maxfield initially sided with the supervisors, and dismissed Kuley’s suit. On Oct. 23, he changed his mind and said Kuley’s assertion of ill will and spite overcame the supervisors’ qualified privilege to discuss Kuley’s work schedule.

Kuley claimed that Fayez retaliated against her because Fayez was unhappy with approved leave Kuley took under the Family Medical Leave Act. She said Barrett’s statements were also malicious because he wanted to protect Fayez from Kuley’s “meritorious grievance.”

“At the heart of the dispute,” Maxfield said, was whether the alleged defamatory statements were “published” under defamation law, given the limited discussion of the overtime controversy.

The defendants argued they were entitled to immunity because the statements were only made in an employment setting and only communicated to people with a duty to handle such information.

“There appears to be confusion in the case law as to the implications of a statement that is communicated only within a business, and even then only to people with a duty to handle such information,” Maxfield wrote.

“All of the authorities seem to state that such communications are in some way protected from a claim of defamation,” but “some cases go further than that to state that such statements are not published” and cannot support a defamation claim, he said.

Without publication, no claim for defamation exists, under the defendants’ theory of Kuley’s complaint.

Maxfield rejected the “intracorporate immunity doctrine,” as applied in a 1997 Virginia federal case, based on a more recent decision by the Supreme Court of Virginia, Larimore v. Blaylock. Under Virginia law, the immunity doctrine does not provide a quick exit from court, Maxfield reasoned.

The “qualified privilege” and “immunity” doctrines “are mutually exclusive, and after Larimore, it is qualified privilege that prevails,” Maxfield wrote.

If the “allegedly defamatory statements are communicated only to people within an organization with a duty to handle such information, publication is established, but established in such a way to trigger a qualified privilege,” the judge said.

Maxfield said Kuley’s allegations of common law malice survived demurrer. She referred to Fayez’s “ill will and personal spite” based on Kuley’s prior complaints against Fayez. Kuley had filed an internal hostile work environment complaint against Fayez, citing conversations in which Fayez was unsympathetic to Kuley’s work load and blamed Kuley’s increased work load on “time management issues.”

Kuley said Barrett’s statements were malicious because they “were done out of ill will and personal spite” to protect Fayez.

Of the 19 statements called defamatory by Kuley, five supported her suit, the court said.

Fayez’s assertion that Kuley “had been given a direct order to follow county and section policy when working overtime,” was a factual statement Kuley alleged was not true. The defendants cited the county’s “published overtime policy” as well as staff meetings within the department to show that the order had been given. Maxfield said the defendants could “raise this evidence at some later time,” but for now, the statement was actionable.

Kuley also said Fayez had denied having any discussion with Kuley in the past about Kuley working late,” which amounted to Fayez saying Kuley was not telling the truth. “Because this statement was made at a formal reprimand meeting, Fayez’s claim was a particularly damning accusation” and was actionable, according to the court.

Barrett allegedly said Kuley had “created hostility and discontent among her co-workers by spreading false rumors and innuendos.” The first part of the statement was “pure opinion,” Maxfield said, but Kuley could sue for the accusation that she spread false rumors.

Kuley also could sue Barrett for his charge that she “eavesdropped on a private conversation” during a 2004 investigation.

Finally, the court combined several of defendant Barrett’s alleged statements and said Kuley could sue him for saying she had engaged in a “pattern” of “unfounded complaints” in the past, and made “disparaging or derogatory comments” about supervisors, including a 2005 grievance that Kuley said “did not occur.”