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Employee?s memorandum to her superior complaining about another worker?s conduct towards her may be protected by a qualified privilege

Employee?s memorandum to her superior complaining about another worker?s conduct towards her may be protected by a qualified privilege
Sassaman v Brant, 2010 NY Slip Op 01634, decided on February 23, 2010, Appellate Division, Second Department

C. Thomas Sassaman sued Michele Brant to recover damages for defamation.

Sassaman and Brandt were hired, respectively, as election administrator and election specialist by the Republican Commissioner of the Dutchess County Board of Elections. Both Sassaman and Brandt were friendly towards each other but following a mishap regarding the printing of ballots, the Commissioner informed the Sassaman that he and the Brandt would be exchanging positions. This change resulted in a $5,100 yearly salary cut for Sassaman.

Brandt subsequently complained to the Commissioner a number of times about the Sassaman?s ?inappropriate conduct toward her.? Ultimately the Commissioner gave the Sassaman the choice of resigning or being terminated. Sassaman resigned.

Sassaman then sued Brandt to recover $32,000 in lost wages and related benefits, alleging, among other things, that Brandt defamed him in the statement concerning his conduct towards her that she had submitted to the Commissioner. At the close of Sassaman?s case, the Supreme Court granted the Brandt's motion pursuant to CPLR 4401(a) for judgment as a matter of law based on the Sassaman?s failure to establish a prima facie case.

The Appellate Division affirmed the lower court?s ruling.

The court explained that the assertions contained in the statement submitted by the Brandt to the Commissioner were protected by a ?qualified privilege,? as the assertions were made in the course of her employment concerning a matter that involved her interests.

To overcome the privilege, said the court, Sassaman was required to establish that the Brandt had submitted the statements to the supervisor with malice. This he failed to do, said the court, commenting that on the contrary, based on the proof offered by Sassaman, a jury could not have found that he had established the element of malice by any rational process.

Full post as published by New York Public Personnel Law on March 02, 2010 (boomark / email).