Defamation Lawsuit

[outcoldace]

What is the name of your state (only U.S. law)? Georgia

Please help me!!! I am currently a state officer in the state of Georgia. I applied for a position with a federal law enforcement agency 1 1/2 years ago. I was going through the hiring process just fine until I had to have a background investigation conducted. The investigators wanted to speak with my supervisors and they did. However, my agencies policy states that all employment verifications must go through personnel. Personnel can only verify my title, dates of employment and salary. However, my supervisors totally defamed my character. They stated that I was manipulative, liar, not a team player, didn't use good judgement, not eligible for re-hire and the list goes on. They also stated that I had several written write-ups in my file which is totally false because I don't have any at all. I have a few oral reminders but those don't get placed in your file. My supervisors also stated that they heard I smoked marijuana and that I had a warrant out for my arrest. Both of those statements are totally false and can be verified to be false. My supervisors listed reprimands that never happened or listed a oral reminder as being a written reprimand to the investigator. All of this information was provided to the federal law enforcement agency and I was ultimately told that I was out of the hiring process due to my supervisors saying that I had 6 to 7 reprimands... that didn't even happen. I was able to see what my supervisors said about me because I requested a copy of my background investigation from the agency that conducted the investigation.

Can I sue my state agency for defamation? Are they immune under the sovereign immunity laws of state tort act?

 

[tranquility]

Realistically, see an attorney. While it seems more than what I would recommend a person says to a caller was said, that does not mean more than the increased chance of a lawsuit.

See an attorney. See an attorney. No guarantees, but certainly something which needs to be *specifically* reviewed.

 

[cbg]

Personnel can only verify my title, dates of employment and salary.

Says who? There is no law to that effect in any state, despite a persistant myth to the contrary.

They stated that I was manipulative, liar, not a team player, didn't use good judgement, not eligible for re-hire and the list goes on.

Opinions all, and opinions are not actionable.

 

[outcoldace]

Personnel can only verify my title, dates of employment and salary.

Says who? There is no law to that effect in any state, despite a persistant myth to the contrary.

They stated that I was manipulative, liar, not a team player, didn't use good judgement, not eligible for re-hire and the list goes on.

Opinions all, and opinions are not actionable.

Those are definitely opinions but I do have copies of each and every one of my employee evaluations that state I am a good officer, asset to the agency, I have a positive attitude and that I'm a team player. why is that they can list positive things about me in every employee evaluation but when given the opportunity to do a employment reference they say the exact opposite.

Also, my state agency's policy states that personnel is only allowed to give out specific information. I never said it was a state law that said they had to provide specific information.

 

[csi7]

You can report the violations. I would report the violations to both the state and the federal agency that oversee the personnel involved in the violations.

 

[tranquility]

"Not eligible for rehire" would not be an opinion. Also, in the rest of the OPs post are specific factual claims of:

-several written write-ups in my file
-stated that they heard I smoked marijuana and that I had a warrant out for my arrest. (Even if true that they "heard" it, repeating defamatory statements is still defamation.)

The maim problems (If the statements are false and defamatory.) will not be the defense of opinion, but qualified immunity for the speaker and qualified privilege for why the statements were made. (Official governmental background check.) I don't think there is a case here, but the OP will not be able to get a job with a federal law enforcement agency with them in his record so the damages are high. It is worth his time to see an attorney to review the situation.

 

[quincy]

Any action you could bring would be against the supervisors who defamed you and not against the state agency or the agency that conducted the background check. **see my edit below

If your supervisors were responding to a request from an outside agency, what they said to this outside agency would (generally) not be covered by privilege. And most communications even within an agency would (generally) be covered by only a qualified privilege.

A qualified privilege is conditioned on a person acting on a legal or moral duty (ie. an employee informing his employer of actual or suspected misconduct by another employee) and would protect the person only if the privilege was exercised properly. The qualified privilege would be lost to someone who communicated knowingly false and defamatory statements to others (ie. informing the employer of an employee's theft knowing that the employee did not steal anything).

There is also an "official" privilege which would immunize from a defamation action any statement made by one state officer to another - but this is ONLY when the statement is made in the course of an official duty (ie. statements made between two police officers investigating a crime). It does not appear that the statements described here are protected by an official privilege.

At any rate, I totally agree with tranquility that this is a matter you will want an attorney in your area to review. Having any misinformation removed from your employment files is vital (and having any misinformer removed from employment may be possible by following csi7's advice ).



Edit to add: Georgia has a one year statute of limitations period within which you must file a defamation suit. If the investigation was completed over a year ago and the defamatory statements made by the supervisors were made over a year ago, you have waited too long to file suit.

 

[cbg]

I disagree that not-eligible-for-rehire is not an opinion, since there is no legal definition of who is and is not eligible for rehire and the employer gets to decide.

 

[outcoldace]

Georgia has a one year statute of limitations period within which you must file a defamation suit. If the investigation was completed over a year ago and the defamatory statements made by the supervisors were made over a year ago, you have waited too long to file suit.

These statements were made in November of 2009. So I still have some time left to file a lawsuit. However, I was told by a lawyer that I couldn't sue my state agency because of sovereign immunity and that slander and libel was something that makes the state exempt from a lawsuit. Any insight on this would be helpful!!!

Also, these statement were made from my supervisors to the federal agency that conducted the background investigation.

To say that I'm not eligible for re-hire is not true and definitely my supervisors can't make that decision because they don't hire or fire anyone.

 

[quincy]

cbg, the fact that an employer gets to decide who is or is not eligible for rehire is exactly why that particular phrase can be defamatory.

Unless there are (true) facts provided, informing as to why someone is not or would not be eligible for rehire, the statement is left open to interpretation and speculation. Whether it is defamatory or not would not necessarily be determined by what the speaker meant when he used that phrase, but rather could be determined by how the recipient of the statement understands it, and how it is generally understood in the "community" as a whole.

If the employer chooses to provide information on an employee at all, the employer would be wiser to use EXAMPLES of how an employee is, say, manipulative, instead of LABELING the employee as manipulative. For example, stating truthfully that the employee escaped his job of cleaning toilets by telling a young hire that it was part of her job could be a supportable fact, while the label "manipulative" is a generalization and potentially defamatory.

"Not eligible for rehire" on its own without explanation as to what that means, or "not eligible for rehire" based on generalizations, opinions that imply false facts, or based on FALSE reasons (ie. drug use and a warrant for arrest and several reprimands) can be seen as defamatory when communicated to others, and can get an employer sued, and the employer can lose the suit.

 

[cbg]

Guess we're going to have to agree to disagree on this one.

 

[quincy]

outcoldace, it is not the state agency that you could or would sue.

It is possible, however, that you can sue the supervisor(s) who passed on false information about you to the federal agency that conducted the investigation.

While states and state agencies have immunity from suit (in almost all cases unless they waive this immunity), the individuals who work for a state or a state agency are not protected from suit (in many cases).

If your supervisor had a duty as part of her job to report to the investigator information about you, the information she provided to the investigator could be covered by a privilege, making the statements themselves immune from suit under most circumstances. The privilege that would cover these statements would be a qualified or conditional privilege.

A conditional privilege is just that - a privilege with conditions that must be met for it to hold. The privilege that protects a person from a defamation lawsuit can be lost when information is communicated that is knowingly false and defamatory.

I don't know if the attorney you spoke with had access to all of the facts of your situation, or if the attorney you spoke with was a defamation attorney. If the answer is yes to both of these, then I imagine you do not have any suit worth pursuing.

If the attorney was not an attorney who specializes in defamation law, then you may wish to contact such an attorney and review with him all of the facts. Based on what you have posted here, you may have an action worth pursuing. Defamation actions tend to be, however, extremely expensive and time consuming and can attract unwanted attention to the matter. You must weigh whatever benefits may be realized in a suit against these costs.

Good luck.



Edit to add for cbg: cbg, you may wish to review a couple of Massachusetts employment cases. See Pritsker v Brudnoy, (1988): An opinion is one based on "disclosed or assumed non-defamatory facts" and Flavia Bianci v Commonwealth Childcare Corp, (2000): It is not defamatory to state that a person will not be eligible for rehire when included is the reason for the ineligibility (ie. poor attendance and an inability to accept constructive supervision). You can also look at Gertz v Robert Welch, Inc, (1974): The Supreme Court stated that a "mixed opinion" is actionable "if the comment is reasonably understood as implying the assertion of the existence of undisclosed facts about the plaintiff that must be defamatory in character in order to justify the opinion."

 

[tranquility]

I disagree that not-eligible-for-rehire is not an opinion, since there is no legal definition of who is and is not eligible for rehire and the employer gets to decide.

Really, do you have a cite for such? In addition to those posted by quincy, you might review:
Ward v. Sears, Roebuck & Co., 339 So. 2d 1255 - La: Court of Appeal, 1st Circuit 1976
or,
BOARD OF PUBLIC SAFETY v. Jordan, 556 SE 2d 837 - Ga: Court of Appeals 2001

Others too, depending on the claim. Why is it do you believe "not-eligible-for-rehire" is merely an opinion and not a fact?