MARGARET J. KRAVCHUK, Magistrate Judge.
Shelly Flood and Keri Flood brought this civil action against Bank of America Corporation and FIA Card Services NA, pursuant to the Maine Human Rights Act and Maine common law. Shelly Flood alleges sexual-orientation discrimination in employment and defamation. Keri Flood alleges tortious interference and defamation. The action is in this court based on diversity jurisdiction. Currently pending is Defendants' Motion for Summary Judgment (ECF No. 60), which the court referred for report and recommendation. For reasons that follow, I recommend that the court grant the motion as to Shelly Flood's discrimination and defamation claims. I recommend denying the motion as to Keri Flood's claims.
Plaintiff Shelly L. Flood a/k/a/Shelly O'Donnell-Flood
Shelly's team leader was Jeremy Treneer, a "lead associate." There were multiple teams. One step up on the supervisory ladder from Treneer and the other team leaders was Diana Castle, the unit manager. Castle supervised both the team leaders and associates, with responsibility for roughly 200 associates. Castle reported, in turn, to Brian King, the ECCR regional manager. (Statement ¶ 8.) Castle was the senior official at the Bank's Belfast branch. (Additional Statement ¶ 1.) Beginning in March 2010, Michelle Tabbutt began assisting Treneer with team leadership. Tabbutt focused on day-to-day tasks, conducted listenings, performed daily meetings, and discussed with the associates any specific issues on a particular account. Treneer continued to be the manager of the group and performed both midyear and end-of-year evaluations. (Statement ¶ 35.)
When Shelly logged into the system, it would tell her when her break times and lunch break(s) would be that day. She had two breaks per day, lasting between 15 or 20 minutes, and one hour for lunch, though lunch was sometimes split into two 30-minute sessions. She was not required to take her breaks in any particular location and could remain at her cubical if she wished. (Statement ¶ 7.)
Shelly Flood and Castle met in 2008, when Castle was assigned to be Shelly's mentor through the Bank's
In March 2009, around the same time Shelly Flood began her new position with ECCR, she met Keri Flood. Keri was employed by ABM Janitorial Services Northeast, Inc., and was assigned to perform commercial cleaning services at the Belfast facility. (
In April 2010 there was a bank social event. At this event Shelly Flood was volunteering at the LGBT table and Castle was volunteering at the Lead for Women's table. They "said [their] pleasantries" and Castle observed a photo at the LGBT table in which Shelly and Keri were either hugging or standing arm in arm. The picture was taken at a local bar. (
In late July or early August, Shelly and Castle had a meeting at which they addressed Shelly's goal of becoming a manager. Castle told Shelly that she needed to keep her girlfriend away from her desk for perception purposes and that it would be better for Keri to hear it from Shelly than from Keri's supervisor. Later in the meeting, Castle reiterated that if Shelly wanted to be a manager, it was "not a good idea to have your girlfriend hanging at your desk." (Statement ¶ 19; Shelly Flood Deposition at 154, PageID# 719.) At her deposition, Shelly testified that she found Castle's comment threatening, but would have seen it differently if Castle had said Keri should not be there because Keri was not part of the team. (Statement ¶ 20; Shelly Flood Deposition at 156.) Shelly felt that Castle's statement was threatening because Castle suggested she would complain to Keri's supervisor if Keri did not stay away. (Shelly Flood Aff. ¶ 14, ECF No. 63-2.) Also in late July or early August, Castle told Shelly that she could no longer take time off the phone to attend LGBT affinity group meetings. (Additional Statement ¶¶ 15-17.)
Shelly Flood states that she observed that other associates had significant others who worked at the Bank and who would visit each other at their work stations. Her visits with Keri were of a comparable quality and duration. (Statement ¶ 23; Shelly Flood Aff. ¶ 13.) She was unaware if other associates were ever spoken to about their social visits. (Statement ¶ 23; Shelly Flood Deposition at 161, PageID# 726.) However, Shelly observed and overheard others talking openly about their personal lives during work hours, including one manager who frequently discussed her wedding plans in the summer of 2010. Some co-workers asked Shelly about her own wedding plans because she and Keri had planned for a commitment ceremony in August 2010. Shelly says she was instructed to keep all conversations about her personal life, such as her wedding, "off the floor."
After being told not to have Keri hanging around her desk, Shelly and Keri made sure to keep their distance on the floor where Shelly worked. (
Following Keri's receipt of the written counseling, Shelly contacted Regional Manager Brian King and requested a meeting. Shelly was very upset because she assumed Castle had spoken to Keri's manager about her social visits despite asking Shelly to speak with Keri, which she had. (Statement ¶ 26.) During the meeting, Shelly told King that Castle had commented on her weight and attire and that she no longer found the mentoring relationship rewarding. (
King discussed the situation with the Bank's HR manager, Peter Sims. Sims indicated that he, personally, probably would not have raised the issue with Tim Wilson, as Castle had, though he did not see anything wrong in it, either. (
Later in August, King, Castle, and Shelly Flood met for a discussion. (Statement ¶ 29.) King told Castle that she would no longer be Shelly's mentor. (
In 2009, Shelly Flood received positive mid-year and year-end performance evaluations from Treneer. (
In or about August 2010, five minutes before the end of Shelly's shift, Castle demanded of Treneer, in Shelly's presence, that he place Shelly on verbal warning before she left for the day, for a putative error on a certain account reflected in Shelly's loan review sheet. Treneer then informed Shelly that she was being put on verbal warning. The alleged error had been on her loan review sheet for at least two weeks, but no one had asked her about it. Shelly was easily able to prove that she had nothing to do with the account and that the error should not have been placed on her sheet. (
On August 10, 2010, Tabbutt gave Shelly two "does not meet" grades for calls that warranted a better grade, in Shelly's experience. (
On September 7, 2010, Shelly received a written "verbal warning" for failure to meet her "CPPH" (calls per productive hour) goals for April, June, and July 2010. (S. Flood Dep. Ex. 22, PageID# 861.) The warning (which was placed in her file) threatened: "Failure to meet expectations may result in further disciplinary action up to and including termination." (Additional Statement ¶¶ 55-56.) The warning was delivered by Treneer and Tabbutt. (Statement ¶ 40.) However, Shelly had received a positive mid-year review from Treneer in August 2010, with no mention of any failure to meet her CPPH goals. (Castle did not participate in the mid-year review.) (
Castle testified at her deposition that it would have been standard procedure for her to contact the Bank's Advice and Counsel Department prior to Shelly receiving this warning. There is a document reflecting that Castle placed such a call on September 3, 2010, ahead of the delivery of the warning, and that a manager would issue a written warning for unsatisfactory performance. The document also indicates that the "manager" stated that Shelly received a verbal warning in June, but this is not consistent with the summary judgment record put forward by the defendants, which fails to reflect any June verbal warning.
After this, Shelly began applying for other positions with the approval of Jeremy Treneer. Castle has testified that she lacked the power to block any such applications, but she spoke with one recruiter to say that Shelly was challenged to meet her current goals and would need to focus on meeting her current goals before taking on additional responsibility. (Additional Statement ¶¶ 73-75.)
On September 21, 2010, Shelly learned that Tabbutt had assessed her as not meeting expectations on a call and believed the assessment was not warranted. (
Shelly worked on September 22, tied up loose ends, and did not report on September 23. (Statement ¶ 50.) According to Shelly, she was unable to return or to call and talk to her supervisors because of emotional upset. (Additional Statement ¶¶ 90-91; Statement ¶ 53.) Shelly did not call the 1-800 work hotline and failed to notify her managers of her absence. (Statement ¶ 51.) Shelly received two voicemail messages concerning her absence, one from Castle and the other from Tabbutt, but did not return their calls. (
The same document that indicates Castle called Advice and Counsel on September 3 records another call from Castle on September 23. It records that Shelly "will be progressing to [final written warning] at the end of the month." (Additional Statement ¶ 93.)
On Tuesday, September 28, 2010, Treneer sent Shelly a letter saying that he would assume she had voluntarily resigned and would separate her employment if he did not hear from her within three days. (Statement ¶ 58; Letter, PageID# 862.) Shelly remained out of work and wrote a lengthy letter addressed to Diana Castle on September 30, 2010. She hoped the letter would prompt an investigation. (Additional Statement ¶¶ 94-94; Shelly Flood Dep. Ex. 24, PageID# 863-66.) Shelly wanted to continue working at the Bank, but not if she had to endure the treatment she was receiving. (Additional Statement ¶ 97.)
The defendants state that Shelly Flood's letter was the first indication that she believed she was treated differently because of her sexual orientation and that she nowhere indicated in her letter that she wanted to return. (Statement ¶ 60.) This is contrary to Shelly's statement that she raised the issue with King at her August meeting with him. It is also contrary to Shelly's letter, which indicates that she tried to get issues resolved with King, but that it seemed only to fuel the fire. Additionally, the letter related that Shelly sought a different position in the Bank, wanted to find a solution and be part of the team, saw her job as her career, had not expected her "lifestyle" would interfere with her advancement, and "was being retaliated against and judged on [her] personal life's choices." (PageID# 865-66.)
On October 1, Shelly received a voice message from HR manager Peter Sims. She called back but the two never talked. Sims referred the matter to Shelly Treppa, a case manager. Over the next few days, Treppa called and left messages for Shelly and Shelly called and left messages for Treppa, but they never talked. (Statement ¶¶ 61-64; Additional Statement ¶¶ 98-99.)
Castle recommended that they follow the job abandonment process, but says she did not recommend termination. It was decided that Shelly would be classified as having abandoned her job as of October 1, 2010. (Statement ¶ 66.) Job abandonment was the reason for separation provided to the Maine Human Rights Commission while Shelly's charge of discrimination was pending there. (Additional Statement ¶ 103.) According to Shelly, she learned of this classification "via computer" in early October. (
The Floods' counsel deposed Kimberly Norton, a team manager for the Bank's Advice and Counsel Department, designated as a representative to address certain matters. Norton testified: "Generally if there was an ongoing investigation, we would not separate the associate. However, if an associate is separated, it still does not mean that if an investigation is completed and something was not done correctly that we still could not reverse, you know, a separation." (
Shelly Flood sought other employment beginning in October 2010. The defendants state that in no instance did Shelly disclose "job abandonment" as the reason for her separation from the Bank. (Statement ¶¶ 67-70.) Shelly does not supply any evidence that she did so in either her opposition statement or her additional statement.
According to Diana Castle, on or about October 7, 2010, a pregnant ECCR associate in Castle's department named Trista Jackson told Castle that Keri Flood had been bumping into her in the hallway for a period of time and that, recently, Keri had attempted to trip her in a stairwell using a vacuum cleaner cord. Castle contacted various bank security personnel both within the Belfast facility and in Charlotte, North Carolina to relay the complaint. Among the individuals notified of the matter was Peter Roper, the protective services manager at the Belfast facility. (Statement ¶¶ 71-74; Additional Statement ¶¶ 104, 107.) As a result of an interview with Jackson, Roper found Jackson credible. However, Roper requested that camera footage of the stair be reviewed and it was reported back to him that the footage was reviewed and there was no video evidence of the tripping event.
Email exchanged between Dietrich and Kinsley reflects that Dietrich at some point was informed that there were allegations of inappropriate comments directed at a bank employee that could be construed as threatening, a series of five shoulder bumps or collisions, a most recent collision on a staircase, an indication that the bank employee was pregnant, an indication that the behavior was intentional, and a statement that the police would be called if Keri came onto the premises again.
According to the defendants, the alleged incident between Keri Flood and Trista Jackson stemmed from a workplace disagreement between Shelly Flood and Jackson. (
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The court reviews the factual record in the light most favorable to the non-moving party, resolving evidentiary conflicts and drawing reasonable inferences in her favor.
The Bank
Shelly Flood advances two counts against the Bank. In her first count she alleges adverse employment actions, including "laying the groundwork for her termination" and harassment motivated by supervisor animus toward her because of her sexual orientation. (Amended Complaint ¶¶ 11-12, ECF No. 34.) She alleges wrongful termination on or about October 1, 2010, although she elected to stop reporting to work before that date. (
The Maine Human Rights Act prohibits discrimination in employment on account of sexual orientation. 5 M.R.S. §§ 4571, 4572(1). Employers engage in unlawful employment discrimination when, among other things, they "discharge an employee or discriminate with respect to hire, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment or any other matter directly or indirectly related to employment."
In this case, it is undisputed that Shelly Flood is a member of a protected class. The disputed issues concern the existence of an adverse employment action and evidence of a discriminatory motivation. Shelly Flood contends that the following adverse employment actions were imposed: supervisor harassment over a period of months, unfair use of heightened work-evaluation standards and expedited implementation of the Bank's progressive discipline process, and discharge from employment. (Pl.'s Objection at 5-6, ECF No. 63.) As for discriminatory motivation, Shelly points to (1) evidence that Castle's treatment of her changed for the worse following the April 2010 bank social at which Castle saw Shelly at the LGBT table and observed a photograph of Shelly and Keri embracing; (2) discontinuation of authorization for Shelly to participate in the LGBT affinity group during work hours; (3) Castle's attempt to prevent Keri and Shelly socializing at all at Shelly's workstation; (4) unfair retroactive revision of Shelly's "aux hours" to bring Shelly's CPPH score below expectations; and (5) "fast-track" application of the progressive discipline system. (
Shelly Flood's presentation has certain flaws. For example, the facts do not reasonably warrant a finding that she was constructively discharged from employment or that she suffered the sort of objectively severe or pervasive harassment that would support a "hostile work environment" claim. The closer issue is whether the evidence is sufficient to allow a jury to conclude, without resort to speculation, that Diana Castle subjected Shelly Flood to materially adverse treatment related to the terms, conditions, or privileges of employment within the meaning of the Maine Human Rights Act and that this treatment was motivated by discriminatory animus toward Flood's sexual orientation.
Under Maine law, "discharge" includes a circumstance in which "the employee has no reasonable alternative to resignation because of intolerable working conditions."
Proof of a hostile work environment claim requires evidence demonstrating, among other things, harassment based on membership in a protected class that is sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment, viewed objectively.
With constructive discharge and hostile work environment removed from the case, what remains are chilled social interaction between Castle and Flood, non-class-specific put downs from Castle, negative subjective evaluations despite a history of positive evaluations, retroactive manipulation of performance data to support issuance of a written warning, a false representation to accelerate application of the progressive discipline system, a temporary bar on social visits from Keri, and a bar on continued participation in the LGBT affinity group during work hours. The Bank contends that these circumstances did not materially change the conditions of Shelly Flood's employment because Flood was not demoted, transferred or reassigned, denied a promotion, or subjected to unwarranted negative job evaluations resulting in any tangible consequences. (Motion at 11-12.)
For purposes of the prima facie burden, the evidence in this case does raise the question of whether Flood was subjected to unwarranted negative job evaluations. The evidence also suggests that the Bank was preparing to apply its progressive discipline system in an accelerated fashion, based on a false representation from Castle concerning the existence of a June 2010 verbal warning. Castle is at the vortex of the negative evaluation related to Shelly's calls-per-productive-hour (CPPH) score because Castle retroactively overrode certain "aux hours" permitted by one of Shelly's team leaders, thereby transforming a once positive job evaluation into a negative evaluation. In addition, there is evidence that could support a finding that Castle denied Shelly periodic social visits at her workstation and denied her continued participation in the LGBT affinity group during work hours. However, the evidence does not demonstrate materially adverse employment actions.
"Actions adverse to employment are recognized as those that `adversely affect the employee's compensation, terms or other conditions of employment.'"
I begin with the social visits and the affinity group participation. On one version of the facts, social visits involving heterosexual partners were permitted but Shelly and Keri's were not. At the same time, the record supports a finding that Castle opposed Shelly's continued participation in the LGBT affinity group during work hours. These social restrictions are not actionable adverse employment actions because they did not impose on Shelly something of consequence to the employment relationship on par with a demotion or reduced pay, or withhold something of consequence on par with consideration for a promotion.
The other mistreatment alleged by Shelly Flood concerns negative employment evaluations. Under federal law, unwarranted negative evaluations
These kinds of impositions are in the nature of supervisor harassment that falls short of both the adverse employment action standard and the hostile work environment standard. This kind of harassment should be addressed with human resources or EEOC personnel and if no action is taken, or if a tangible adverse action evolves, such as termination, demotion, loss of hours, or other materially adverse, tangible consequence, then these previously intangible indignities will have become materially adverse. Here, however, Shelly Flood appropriately raised the matter of social visits with King and King indicated that Keri need not be barred from Shelly's workstation. As for LGBT affinity group participation, Shelly Flood has not indicated whether she addressed that issue with King or what happened in that regard. She has failed, in other words, to develop that aspect of her case. Finally, following Castle's modification of her evaluation Shelly stopped coming to work. If an adverse employment action was in the offing, Shelly prevented it from occurring. Because Shelly was not subjected to a materially adverse employment action, she fails to carry her prima facie burden.
I draw the preceding conclusion subject to one caveat. Maine law prohibits discrimination in regard to "the terms, condition, or privileges of employment," or in regard to "any other matter directly or indirectly related to employment." 5 M.R.S. § 4572(1)(A) (emphasis added). Federal employment discrimination law, by comparison, does not contain the "any other matter" clause found in the Maine Human Rights Act.
Although I conclude that Flood does not present sufficient evidence of an adverse employment action to support a claim for discrimination, for the sake of completeness and because the Court might reject my conclusion regarding an adverse employment action, I consider whether Flood has generated sufficient evidence of discriminatory animus. Flood must present sufficient evidence to permit a finder of fact to conclude that the conduct she experienced was the product of discriminatory animus. The court's role in this is simply to determine whether there is a version of the facts that enables a verdict for the plaintiff. Like federal law, Maine law uses the McDonnell Douglas framework to determine whether there exists a genuine issue of discriminatory animus.
The evidence is sufficient to support Flood's initial burden of showing unlawful motivation. In late July or early August, Castle told Flood that reaching the ranks of management would be difficult if Flood had a girlfriend hanging at her desk, due to perceptions. Castle also took steps to keep Keri Flood away from Shelly's workstation but, on one version of the facts, tolerated similar visits involving heterosexual associates. Following Shelly's appeal to King, who overrode Castle's dictate concerning Keri, Castle wrongly demanded that one of Shelly's team leaders place Shelly on verbal warning for something that Shelly was readily able to show was not her responsibility. Coinciding with this treatment, Shelly's other team leader, the one who monitored calls, became more critical of Shelly's call performance. Shortly thereafter, Castle retroactively modified Shelly's performance data related to prior months, months that were already positively evaluated, and set the stage for a written warning, something never before imposed on Shelly. The timing and circumstances are sufficiently probative of bias to carry the initial burden.
The Bank's burden of providing a legitimate reason for the treatment in question is a burden of production, not a burden of proof. Concerning Castle's effort to keep Keri away from Shelly's workstation, the Bank says that "it was management's judgment that these daily visits for non-business related purposes became an unnecessary distraction that may have contributed to [Shelly] Flood's declining efficiency scores." (Motion at 12.) This is a curious assertion because there is no corresponding statement that Castle was even subjectively concerned about any declining efficiency scores at that time. As for the CPPH efficiency scores themselves, the Bank says that Shelly's scores in fact dropped for three months in a rolling six-month period and that Shelly's personal perspective cannot suffice to undercut this evaluation. (
Shelly's final burden is to demonstrate that the legitimate reasons offered by the Bank are pretexts for discrimination. To meet this burden, Shelly "need only assert sufficient facts, supported in the summary judgment record, from which a reasonable fact-finder could disbelieve the employer's proffered rationale and conclude that illegal discrimination was the true motivating factor."
The Bank says that Shelly has failed in this regard because she never identified the alleged co-workers who were permitted to have visits from significant others at their workstations. (Reply at 3, ECF No. 65.) The Bank also asserts that the only way for Shelly to prove discrimination would be for her to identify a heterosexual associate who failed to meet the CPPH goals and did not receive a warning. (
It is true that Shelly's presentation is not solidified with clear evidence that Castle tolerated comparable socialization involving any particular heterosexual associate at his or her workstation. However, Shelly does maintain that she observed first hand that others were permitted visits when she was not (although it appears the other visits were between bank employees). Her failure to name other associates or her lack of supportive witnesses is an issue of weight. Her sworn assertion that she observed the socializing is sufficient for present purposes. It is also true that Shelly has not identified a heterosexual associate with no prior warning history who missed the CPPH goal for three months in a rolling six-month period without being issued a warning. This is the more difficult challenge for Shelly because her summary judgment presentation does not suggest that she investigated the standard that Castle would have relied upon to deny any particular aux hours. On the other hand, Shelly is permitted to prove her case circumstantially. Under the MHRA the prima facie standard does not require direct proof of disparate treatment,
Some of the evidence could fairly be regarded as probative of pretext. A jury could conclude on this evidence that Castle took affirmative measures to undermine aspects of Shelly Flood's employment, first by imposing a no visitation rule in relation to Keri stopping at Shelly's workstation (understanding that Keri and Shelly were in a romantic relationship), then by misrepresenting the existence of a prior warning and retroactively denying aux hours that had been approved by a team leader. The retroactive nature of the aux hours change, the timing of the change in relation to King's intervention on Shelly's behalf, the fact that a team leader previously approved the aux hours and positively evaluated Shelly's performance for the months in question, and Castle's misstatement concerning the existence of a prior warning could support an inferential finding that the CPPH-basis for the negative evaluation was false or was being manipulated by Castle as a means of setting up Shelly for termination and a related finding that Castle harbored animus toward Shelly based on Shelly's sexual orientation. This all assumes, of course, that the finder of fact would view all of the evidence in the light most favorable to Shelly Flood and draw the inferences in her favor as well.
Ultimately, the problem with Shelly Flood's employment discrimination case is not that there is insufficient evidence to support a finding of discriminatory animus on the part of her supervisor. The problem, as set forth previously and elaborated on in the following discussion of the defamation claim, is that the case is devoid of a tangible adverse employment action. Shelly may have correctly read the writing on the wall and Castle may have been in the process of setting up a wrongful termination or other tangible result, but Flood did not wait for that to happen.
The Bank states that Shelly Flood's defamation claim is premised entirely on the idea that she was compelled to self-publish statements indicating that she "abandoned" her job. (Motion at 17.) The Bank says the claim is not viable because there is no evidence of self-publication and because such a statement, if made, was not false. (
The elements of defamation are: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
The question of whether a statement is capable of conveying a defamatory message is a question of law. However, whether the statement is true or false typically depends on factual findings.
The questions that remain are whether there is sufficient evidence to find the job abandonment classification was false and whether the identified publications are actionable. In her complaint, Shelly Flood alleges that "the Bank has published and forced Shelly Flood to publish false statements defaming her occupational and professional fitness, including statements that her employment was terminated for `job abandonment' or for reasons relating to her lack of fitness for her position." (Amended Complaint ¶ 21.)
This court has previously concluded that compelled self-publication can support a defamation claim under Maine law.
In her statement of additional facts, Shelly establishes that the Bank told the Maine Human Rights Commission that she was classified as having abandoned her job. (Additional Statement ¶ 103.) She also contends that by putting job abandonment in its own records, the Bank published the defamatory statement throughout the Bank's organization. (Pl.'s Objection at 12.) In her additional statement, she maintains that she learned of the classification "via computer." (Additional Statement ¶ 100.) In a prior order on the Floods' first motion to amend the complaint to add, among other things, Shelly's defamation claim, I granted leave to amend but limited Shelly to her self-publication theory, explaining that "other statements or theories of the claim cannot be asserted because the complaint fails to allege precisely what other statements were made and to whom and under what circumstances those additional statements were made." (Aug. 1, 2012, Order on Motion to Amend at 8, ECF No. 31.) Although notified of her right to object to the ruling before the District Court Judge, Shelly did not pursue an objection. Under the circumstances, Flood has failed to preserve her claims concerning internal bank publication and publication to the Maine Human Rights Commission.
Beyond this stumbling block, I am not persuaded that Shelly Flood has generated a genuine issue related to abuse of the conditional privilege that permits an employer to communicate employment information within its own organization and to a state agency investigating a charge of discrimination. Defamation law recognizes a conditional privilege that protects against liability where the publication in question is made in the context of a communication that promotes an important interest in frank speech held by the publisher and the recipient.
Making an internal record of the reason why an employee separates from employment clearly serves an important legal interest. Similarly, the Bank had an important legal interest in informing the Maine Human Rights Commission of the reason for Shelly's separation that it placed in its records. The Commission also fulfills an important role in its receipt of such information. "Any situation in which an important interest of the recipient will be furthered by frank communication may give rise to a conditional privilege."
Abuse is demonstrated by a communication made outside the normal channels; or by a communication that the defendant knows is false, knows is probably false, or knows is subject to serious doubt; or by a communication that is made out of spite or ill will.
Keri Flood alleges that the Bank tortiously interfered with her employment with ABM by falsely accusing her of threatening and assaultive behavior against a bank employee. (Amended Complaint ¶¶ 43-51.) She also alleges defamation based on the same underlying representations. (
The Bank says the record is devoid of evidence that any such statements were ever published to ABM. According to it, Roper merely told Dietrich that Keri was no longer allowed on premises and provided no additional information. (Motion at 22.) If there is a genuine issue related to publication, then the Bank says its communication to ABM was privileged because ABM provides the Bank with services inside the Bank's premises. (
The statement in question, an accusation of attempted pushing or tripping on a staircase, is defamatory in nature and concerned Keri's fitness for employment, making proof of special damages unnecessary (Keri could establish damages, anyway, based on the loss of her job). Thus, the only elements that are contested are whether the facts can support a finding of an unprivileged publication to a third party and fault amounting at least to negligence on the part of the publisher.
Reviewing the factual statements, there is a reasonable inference that the allegations against Keri were communicated to Dietrich and/or Kinsley. Exactly who communicated them is not clear, but the Dietrich-Kinsley email exchange reflects that they came to learn the nature of the allegations against Keri. The logical inference is that the information came from a source within the Bank. This raises a genuine issue concerning publication.
The communication of grounds for excluding an ABM employee from the Bank's premises advances an important interest of ABM, which bears potential liability for its employee's acts. Consequently, the conditional privilege applies in this kind of scenario. On the issues of abuse of the privilege and fault amounting at least to negligence, genuine issues exist because Jackson's allegations were published by Castle, the Bank's agent, ostensibly in service to the Bank. The Bank is chargeable with Castle's act and her knowledge.
The Bank argues that the record cannot support a tortious interference claim. It once more focuses on Roper's communication with Dietrich, maintaining that he only stated that Keri was not welcome on the premises any longer and asserting that "there are no other admissible facts that anyone else from the Bank ever spoke with ABM about Flood's position at the Belfast location." (Motion at 25.) As explained above, in footnote 15, the email exchange between Dietrich and Kinsley is part of the stipulated record. That evidence is capable of supporting a reasonable inference that the Bank published the nature of the allegations to Dietrich and/or Kinsley.
Tortious interference can be shown with evidence of (1) an existing contract; (2) interference with the contractual relationship through the defendant's use of fraud or intimidation; (3) proximate damages.
For reasons set forth above, I recommend that the court grant, in part, Defendants' Motion for Summary Judgment (ECF No. 60), by dismissing counts one and two, and deny the motion as to Keri Flood's claim.
As for the claims against ABM Janitorial Services Northeast, on April 17, 2013, the parties entered a stipulation of dismissal, with prejudice, of all claims against ABM. (ECF No. 64.) Consequently, counts III and IV are no longer viable.
