Old Boss vs New Boss

[quincy]

Rarely is opinion “pure” opinion. Pure opinion does not state or imply any fact or, in addition and as defined by the Restatement (Second) of Torts (1977), S566, Comment b., pure opinions are statements based on provable facts which are explicitly stated as support for the opinion.

But you are right that, when no facts at all have been stated or implied, what is said cannot be defamatory. Defamation requires a communication of stated or implied false facts.

However, most people will offer a mix of fact with opinion and, if you support your opinion with, say, a factual personal experience that has led you to form your opinion, even if the conclusion you come to is false, the reasons you give for your opinion can help you avoid actionable defamation. The listener/reader is left to interpret your opinion based on your personal experience and they can come to their own conclusion.

As to proper/improper: I think that you are trying to make a distinction that really does not need to be made. Even the law recognizes proper as being the opposite of improper.

 

[quincy]

Okay, we can split hairs here all day long. but in the long run, unless there is a whole lot more going on than we know, I fail to see why it would be of any benefit to launch such a suit. If you went in and claimed that in some way, this information imparted to him/her by the current employer, supposedly the opinion of the past employer, is detrimental to this person now I think it would be hard to prove.

Which, from my reading, it isn't a problem, she's just real steamed about it. I don't blame her, and yes, this was a low down trick. It isn't illegal. It's an opinion. A sneaky trick designed to make the new employer question the new hire, watch out for trouble perhaps a bit more than they would otherwise. I have seen it happen lots of times. Usually what happens is that some time later, once the person is established at the new job, they find out they were subjected to this type of sabotage by a disappointed ex-employer.

When she says, "medical" I think of medical offices, which in my opinion and by my observation are about the worst possible employers because of the level of pettiness and gossip and general mismanagement that goes on. BUT at present, she is employed, her current boss is apparently happy with her, and felt like sharing these negatives with her just in the name of "well, let me tell you what that jerk said about you!" And though it is probably something that might legally be considered damaging falsehoods.... particularly if she could show... I don't know.

Why would one want to fool with it? It would cost a lot of money, would stir up a lot of controversy, would be VERY HARD to prove, I do not see that anything concrete and helpful could possibly come from it. Tennessee is a VERY employer friendly state. In the courts and in the workplace, there is not much mercy for anyone except the sacred employer. And remember, your current boss is NOT going to go out on a limb and testify for you in ANY sort of legal action about what a medical colleague said about you, their employee. In fact, I cannot see such an action against a past employer as doing anything but hurting you. It might even get you fired from your current job, from some other cause, of course.

Whether there is any legal action worth the high cost of pursuing depends on facts that have not been disclosed to us by AverageJoeMama, such as what exactly was said, how did she learn about it, what harm has come from the falsehoods.

Not everything can simply be ignored in the workplace, nor should everything be ignored. Sometimes a legal action is the proper action to take.

 

[commentator]

I agree not everything can be or should be ignored. But in so many cases, I think people believe that they have a whole lot more rights and protections as employees than they do. There is certainly not a lot of labor law that regulates whether an employer or former employer can do this or that to someone, say this or that, be fair or unfair in this or that way.

 

[quincy]

I agree not everything can be or should be ignored. But in so many cases, I think people believe that they have a whole lot more rights and protections as employees than they do. There is certainly not a lot of labor law that regulates whether an employer or former employer can do this or that to someone, say this or that, be fair or unfair in this or that way.

I can agree that employees have far fewer rights than they often believe they have.

 

[Taxing Matters]

As to proper/improper: I think that you are trying to make a distinction that really does not need to be made. Even the law recognizes proper as being the opposite of improper.

Then on this I think you and I will have to agree to disagree as I am not persuaded by your opinion in the matter.

 

[quincy]

Nor I with your opinion. But I am comfortable disagreeing with you on this.

 

[cbg]

I have a problem with "honest and supportable opinion". Opinion is by its nature something you cannot prove. So how does one support something that cannot be proved? Moreover, the law of defamation does not make any distinction between "honest" opinion and any other opinion. If the statement is purely one of opinion it is not defamatory, whether the opinion is "honest" or not.

When discussing defamation, it's important to focus on what is actionable: a false statement of fact that injures the reputation of the plaintiff. Opinion of whatever sort that does not convey a statement of fact is not going to be actionable as defamation.



The law is made, and cases won and lost, on such distinctions. I deal with that all the time in my practice. It is not as irrelevant as you seemingly want it to be.

Support and Prove are not synonyms. If the employer's opinion is that she was a troublemaker, okay, that's his opinion and he's entitled to it. No question there. But it would be supportable if she had a stack of warnings in her file that showed occasions on which she caused trouble. Without them? It's still opinion. It's still not proved. But I didn't say he had to prove it; I said he should be able to support it. If the OP were to file a defamation claim (I am not saying she should; I am saying if) the lack of support would be in her favor.

 

[quincy]

Support and Prove are not synonyms. If the employer's opinion is that she was a troublemaker, okay, that's his opinion and he's entitled to it. No question there. But it would be supportable if she had a stack of warnings in her file that showed occasions on which she caused trouble. Without them? It's still opinion. It's still not proved. But I didn't say he had to prove it; I said he should be able to support it. If the OP were to file a defamation claim (I am not saying she should; I am saying if) the lack of support would be in her favor.

Saying that she is a “troublemaker” can be defamatory if there is nothing else said to support that statement. It is not clearly opinion. It can impugn AverageJoeMama’s fitness for working with others.

With defamation, the words or statements generally do not stand on their own, especially in a state like Tennessee that does not recognize “per se defamation.” The words or statements must be taken in context and there must be demonstrable fallout from their utterance.

IF AverageJoeMama is demoted, not promoted, reassigned or fired (for a few examples) as a result of the former employer’s comments to the current employer, that can be the basis for a defamation or tortious interference claim.

But far more needs to be known - and, even if there is a basis for a lawsuit, this doesn’t mean a lawsuit is the best action to pursue. Lawsuits should always be the very last action to take after all other avenues have been explored.

 

[cbg]

I am not making a case for or against defamation in this case. I am defining my terms.

 

[quincy]

I am not making a case for or against defamation in this case. I am defining my terms.

I think your terms were clear in your first post.

I agree that having support for an opinion (and expressing this basis for the opinion) can make a difference between defeating a claim of defamation or losing a defamation lawsuit.

 

[Taxing Matters]

Support and Prove are not synonyms.

I agree they are not. Prove is a stronger term than support. Both terms though suggest the defendant has to show something to justify the opinion, and that is what I have a problem with.

If the employer's opinion is that she was a troublemaker, okay, that's his opinion and he's entitled to it. No question there. But it would be supportable if she had a stack of warnings in her file that showed occasions on which she caused trouble. Without them? It's still opinion. It's still not proved. But I didn't say he had to prove it; I said he should be able to support it. If the OP were to file a defamation claim (I am not saying she should; I am saying if) the lack of support would be in her favor.

The point that I'm getting at is that as to opinion the defendant does not have to show anything — no support is needed to justify an opinion. It is statements of fact that are at issue in a defamation lawsuit. quincy is correct that a lot of statements can be mixed opinion and fact (whether expressed or implied). In those cases the problem for the courts is unraveling what the factual part is and what is the opinion. The defendant does not have to justify the opinion. But if the factual premise for it is false, that false statement of fact is what creates the defamation problem. And it can be easy for a person to stumble into that problem by making a negative statement that he/she thinks is just an opinion, not realizing that to others it implies that there is a factual basis for it. But again, it is that factual part of it that is the basis for the claim, not the opinion. The opinion part need not be justified.

 

[cbg]

You guys are simply not getting what I'm saying. I understand what you are saying, but I seem to be talking past you. So never mind. I give up.

 

[AverageJoeMama]

Who told you that your old boss said these things? Why were you told?

My current boss made me aware of the conversation, to ensure I knew what I would be facing the next time I visited their clinic.

 

[AverageJoeMama]

Okay, we can split hairs here all day long. but in the long run, unless there is a whole lot more going on than we know, I fail to see why it would be of any benefit to launch such a suit. If you went in and claimed that in some way, this information imparted to him/her by the current employer, supposedly the opinion of the past employer, is detrimental to this person now I think it would be hard to prove.

Which, from my reading, it isn't a problem, she's just real steamed about it. I don't blame her, and yes, this was a low down trick. It isn't illegal. It's an opinion. A sneaky trick designed to make the new employer question the new hire, watch out for trouble perhaps a bit more than they would otherwise. I have seen it happen lots of times. Usually what happens is that some time later, once the person is established at the new job, they find out they were subjected to this type of sabotage by a disappointed ex-employer.

When she says, "medical" I think of medical offices, which in my opinion and by my observation are about the worst possible employers because of the level of pettiness and gossip and general mismanagement that goes on. BUT at present, she is employed, her current boss is apparently happy with her, and felt like sharing these negatives with her just in the name of "well, let me tell you what that jerk said about you!" And though it is probably something that might legally be considered damaging falsehoods.... particularly if she could show... I don't know.

Why would one want to fool with it? It would cost a lot of money, would stir up a lot of controversy, would be VERY HARD to prove, I do not see that anything concrete and helpful could possibly come from it. Tennessee is a VERY employer friendly state. In the courts and in the workplace, there is not much mercy for anyone except the sacred employer. And remember, your current boss is NOT going to go out on a limb and testify for you in ANY sort of legal action about what a medical colleague said about you, their employee. In fact, I cannot see such an action against a past employer as doing anything but hurting you. It might even get you fired from your current job, from some other cause, of course.

Excellent observations! I agree with all your points.

 

[quincy]

Thank you for the additional information, AverageJoeMama. Because your current employer has made you aware of what your former employer has said, and your current employer is apparently discounting the comments made, you probably can safely ignore the comments and continue to do your work without the need for any legal action.

As a note: I understood what you were saying, cbg, and do not have an issue with how you said it. Your intent was, to me at least, pretty clear.

In Rinaldi v. Holt, Rinehart & Winston, Inc. (42 N.Y.2d 369,397 N.Y.S.2d 943, 366 N.E.2d 1299, certiorari denied 434 US 969, 98 S.Ct. 514 (1977), 2 Med.L. Rptr. 2169), the Court said that opinions “false or not, libelous or not, are constitutionally privileged and may not be the subject of private damage actions provided that the facts supporting the opinion are set forth.” (bolding added)

Opinions are tricky because, as I said earlier, opinions are rarely “pure.” They are either not provably true or provably false (e.g., I think she is cute) or they are supported by the facts upon which the opinion is based. These facts can be unstated if commonly known (e.g., The ice caps are melting) or expressly stated.

The conclusions drawn from these facts do not matter all that much if the listener/reader has been provided with the basis for the opinion.

I hope your former employer does not make your work with your new employer too difficult, AverageJoeMama. Good luck.