Kifer v. Wright - Gardner Insurance Inc. et al
MEMORANDUM OPINION. Signed by Magistrate Judge Stephanie A Gallagher on 8/2/2017. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PATRICE S. KIFER,
WRIGHT-GARDNER INS., INC., et al.
Civil Case No. SAG-17-1131
Plaintiff Patrice S. Kifer (“Plaintiff”) initiated this lawsuit against Defendants WrightGardner Insurance, Inc. (“Wright-Gardner”) and its employees Christian Wright, Blakely Barker,
and Vanessa Routzahn (collectively, “Defendants”), alleging claims of employment
discrimination and defamation. [ECF No. 1]. Defendants have moved to dismiss the defamation
claims in the Complaint (Counts Five through Eight) on the basis of conditional privilege. [ECF
No. 11]. Plaintiff’s opposition followed, [ECF No. 15], and Defendants did not file a reply. No
hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons set forth
below, Defendants’ Motion to Dismiss is DENIED.
As alleged by Plaintiff, the facts of this case, relevant to the instant motion, are as
follows. Plaintiff worked as an insurance producer, selling lines of commercial insurance for
Complaint ¶ 16.
In that capacity, she traveled to the businesses of her
commercial clients. Id. ¶ 22. In February, 2016, Plaintiff’s driver’s license was suspended after
she received probation before judgment for Driving Under the Influence (“DUI”). Id. ¶¶ 26, 29.
While she could not lawfully drive, her parents drove her to work appointments, as they had
done previously with Wright-Gardner’s approval following Plaintiff’s shoulder surgery. Id. ¶¶
48, 57-59. On April 28, 2016, Wright-Gardner and Defendant Wright learned about Plaintiff’s
DUI and the resulting suspension, and held a meeting with Plaintiff and a representative from
Human Resources. Id. ¶¶ 44-48. After that meeting, on May 2, 2016, Plaintiff was suspended
until her license was reinstated. Id. ¶ 53. During the suspension, Wright-Gardner distributed
Plaintiff’s accounts to her co-workers. Id. ¶ 61.
When Plaintiff returned to work on July 26, 2016, Defendant Wright presented her with
an “action plan” and a 90 Day “Turnaround Agreement,” with an attached statement of job
performance (“the attachment”). Id. ¶¶ 63, 66. According to Plaintiff, the attachment contained
“false statements that Plaintiff was visiting clients while under the influence of alcohol, looked
sickly, and had engaged in poor job performance.” Id. ¶ 66. Plaintiff refused to sign the
agreement because it contained false statements. Id. ¶ 71. As a result, a Human Resources
manager terminated Plaintiff’s employment. Id.
Specifically, Plaintiff alleges that the attachment asserted that a potential customer, Allen
Stone, had stated that Plaintiff had been drinking alcohol before a meeting. Id. ¶ 72. Mr. Stone
testified at Plaintiff’s unemployment hearings that he had not made that accusation. Id. ¶¶ 72,
74. Plaintiff believes that her co-worker, Defendant Routzahn, falsely reported to Defendant
Wright that Mr. Stone had made that statement in order to obtain Plaintiff’s clients and leads. Id.
¶ 78. Similarly, Plaintiff alleges that Defendant Barker falsely reported to Defendant Wright that
a representative from another client, Oswald Nursery, had stated that Plaintiff was drinking prior
to a business meeting. Id. ¶¶ 87-88. Plaintiff alleges that Defendant Barker also made that false
statement in order to steal her clients. Id. ¶ 174. Finally, Plaintiff alleges that Defendant Wright
not only republished the false statements described above, but also stated in the Turnaround
Agreement that another client, Susie Fisher, had stated that Plaintiff “looked ‘very bad’” during a
meeting. Id. ¶ 97. Ms. Fisher testified that she made no such statement. Id. ¶ 99. Plaintiff
alleges that Defendant Wright made up the false statement “because he did not want her back at
work due to her depression and alcoholism,” id. ¶ 62, and “to take away business from Plaintiff
because of her alleged poor health and to give it to another agent.” Id. ¶ 98.
Wright-Gardner republished the defamatory statements listed above to the State of
Maryland during Plaintiff’s unemployment process, and Defendants Wright, Barker, and
Routzahn testified as to the defamatory statements at Plaintiff’s unemployment hearings. Id. ¶¶
89, 96, 145.
STANDARD OF REVIEW
Defendants contend that Counts Five through Eight of Plaintiff’s Complaint should be
dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). A Rule
12(b)(6) motion “test[s] the sufficiency of a complaint” and does not “resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (internal quotation marks omitted). When
ruling on such a motion, the court must “accept the well-pled allegations of the complaint as
true,” and “construe the facts and reasonable inferences derived therefrom in the light most
favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997).
To survive a motion to dismiss, the factual allegations in the complaint “must be enough
to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). It is not sufficient that the facts suggest “the mere possibility of misconduct.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Rather, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face,” such that the court
could “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
at 678 (citations and internal quotation marks omitted). A complaint need not provide “detailed
factual allegations,” but it must “provide the grounds of [the plaintiff’s] entitlement to relief”
with “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555 (citations and internal quotation marks omitted).
The statements underlying Plaintiff’s defamation claims essentially fall into two
categories: (1) statements made by Defendants Wright, Routzahn, and Barker to their employer
about Plaintiff’s conduct, and (2) testimony by Defendants Routzahn, Wright, and Barker at
Plaintiff’s unemployment hearings. Both categories are addressed below.
A. Wright, Routzahn, and Barker’s statements to their employer
Defendants contend that the statements allegedly made by Plaintiff’s co-workers are not
actionable because they are subject to a conditional privilege. Communications in the context of
an employer-employee relationship are protected by the common interest privilege, shielding a
speaker from liability for defamation in order to “promote free exchange of relevant information
among those engaged in a common enterprise or activity and to permit them to make appropriate
internal communications and share consultations without fear of suit.” Gohari v. Darvish, 363
Md. 42, 58 (2001) (quoting Dan B. Dobbs, The Law of Torts, § 414, at 1160-61 (2000)). Where
that privilege applies, a plaintiff bears the burden to prove that the privilege was abused, by
demonstrating “that ‘the publication is made for a purpose other than to further the social interest
entitled to protection . . . or [by proving] malice on the part of the publisher.’” Id. at 64 (quoting
McDermott v. Hughley, 317 Md. 12, 29 (1989).
In this case, accepting the well-pled allegations
of the Complaint as true, Plaintiff pled that her co-workers knowingly made the false statements
to orchestrate her termination, to steal her clients and leads, and to prevent her from obtaining
unemployment, which does not “further the social interest entitled to protection” in an
employer/employee context. Complaint ¶¶ 153, 155, 164, 174. In addition, to show “malice” in
the defamation context, a plaintiff must prove “a person’s actual knowledge that his statement is
false, coupled with his intent to deceive another by means of that statement.” Ellerin v. Fairfax
Sav. F.S.B., 337 Md. 216, 240 (1995); see also Shirley v. Heckman, 214 Md. App. 34, 45-46
(Md. Ct. Spec. App. 2013) (determining that the Ellerin standard applies in determining whether
a speaker has abused a conditional privilege to defamation). Again, accepting the allegations in
the Complaint as true, Plaintiff in this case has pled facts sufficient to establish malice.
153, 155, 164, 174.
Thus, Defendants’ motion to dismiss the defamation
allegations resulting from Defendants Wright, Routzahn, and Barker’s statements to their
employer must be denied.
B. Testimony Before The Maryland Division of Unemployment Insurance
Plaintiff alleges that Defendants Barker, Routzahn, and Wright further defamed her by
knowingly presenting false testimony to the Maryland Division of Unemployment Insurance.
Complaint ¶ 145.
Defendants argue that the testimony is subject to the conditional privilege
enunciated in Maryland Code, Labor & Employment, § 8-105. That section states, in relevant
Unless a report or other written or oral communication that is made or delivered
in connection with this title is false and malicious, a person may not bring an
action for abusive or wrongful discharge, libel, or slander based on the report or
communication from . . . an employee or an employer to the Secretary or Board of
Appeals or any agent, employee, or representative of the Secretary or Board of
Md. Code, Labor & Employment, § 8-105. Defendants cite Gay v. William Hill Manor, Inc., 74
Md. App. 51 (1988), Bagwell v. Peninsula Regional Medical Center, 106 Md. App. 470 (1995),
and Happy 40, Inc. v. Miller, 63 Md. App. 24, 35 (1985), to support their contention that
statements made in unemployment proceedings are subject to the statutory privilege. While
Defendants are correct that the statutory privilege applies in the context of unemployment
hearings, Plaintiff here alleges that Defendants’ conduct fell squarely within the “false and
malicious” exception contained in the statute. The Gay, Bagwell, and Happy 40 cases, in
contrast, involved no evidence of known falsity or malice. Accordingly, accepting the well-pled
allegations of Plaintiff’s Complaint as true, Defendants’ motion to dismiss on the grounds of
privilege must be denied.
Because Plaintiff’s defamation claim in Count Five against Wright-Gardner is premised
upon the statements made by Defendants Wright, Barker, and Routzahn acting within the scope
of their employment, dismissal of that Count is also unwarranted for the reasons set forth above.
Defendants’ Motion to Dismiss Counts Five through Eight of Plaintiff’s Complaint
[ECF No. 11] is DENIED. A separate Order follows.
Dated: August 2, 2017
Stephanie A. Gallagher
United States Magistrate Judge
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