Plaintiff, a firefighter [and a Commissioner] of the Respondent fire district [FD], alleging that another FD firefighter [Commissioner] accused him of being involved in criminal activities, commenced this action against the Commissioner for libel and slander and against the FD alleging FD created a hostile work environment by failing to enforce (a) its whistle blower policy, (b) its workplace violence policy, and (c) its relevant personnel policy and (d) by failing to initiate an appropriate response to Commissioner's behavior.
FD and Commissioner submitted motions for summary judgment dismissing Plaintiff's complaint.
Supreme Court granted the motions, finding that FD's and Commissioner's statements were substantially true and that the statements were protected by the "common interest" qualified privilege. Supreme Court also determined that Plaintiff "did not articulate a statutory or private cause of action" against FD.
Plaintiff appealed Supreme Court's dismissal of his complaint, which ruling the Appellate Division affirmed, explaining:
1. "On a motion for summary judgment, it is the movant's initial burden to establish prima facie entitlement to judgment as a matter of law by submitting proof in admissible form demonstrating the absence of any material issues of fact. Upon such a showing, the burden shifts to the nonmovant to raise a triable issue of fact, again through the submission of competent evidence" and evidence produced by the movant must be viewed in the light most favorable to the nonmovant, affording the nonmovant every favorable inference.
2. "A claim of defamation requires proof that the respondent made a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se".
3. "It is for the court to decide whether the statements complained of are reasonably susceptible of a defamatory connotation, thus warranting submission of the issue to the trier of fact. This determination is made by looking at the context and circumstances surrounding the entire communication".
4. "Even where a derogatory statement has been made, it remains well established that truth is an absolute, unqualified defense to a civil defamation action. As a defense, truth need not be established to an extreme literal degree. Provided that the defamatory material on which the action is based is substantially true (and minor inaccuracies are acceptable), the claim to recover damages must fail".
5. Additionally, "[c]ourts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether".
6. The "common interest" privilege "arises when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest".
The Appellate Division's decision notes the Supreme Court properly determined that [alleged offending] statements made during the heated exchange that took place between Plaintiff and [Commissioner] in the course of a public meetings of the FD were not actionable as, giving every favorable inference to Plaintiff, Plaintiff "failed to meet his burden."
Further, the Appellate Division opined that the Commissioner's statements are subject to the common interest qualified privilege and pursuant to FD's personnel policy, as the Commissioner had a duty to report ethical or illegal conduct by other FD commissioners. The court also noted that Commissioner's statements "were made in his capacity as a [FD] firefighter and commissioner and referenced legitimate issues related to [FD's] personnel policy and code of ethics".
Noting FD investigated Plaintiff's complaint against Commissioner and is vested with discretion to determine if disciplinary action should be taken or if the matter should be closed, the Appellate Division said official acts involving the exercise of discretion may not serve as a basis for liability nor does an order in the nature of mandamus lie to compel FD to reopen its investigation or arrive at a particular conclusion.
Click HERE to access the Appellate Division's decision posted on the Internet.