Erik Mars v. David Bertozzi et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 120)

This case involves the allegations that an employer, the defendant, David Bertozzi, made certain representations concerning the job performance of the plaintiff as a long-time electrician employee for the defendant's company.   The named defendant, David Bertozzi, in response to background inquiries from a potential employer, Metro North Railroad, referenced certain shortcomings of the plaintiff that related to the plaintiff's job performance in the defendant's employ.

The defendants' claim that there is a qualified privilege that insulates them from liability concerning any negative statements that may be made in response to potential employers' inquiries concerning particular job performance.   The legal issue becomes whether the cases as applied in this case would allow a summary judgment to enter against the plaintiff based on the facts as presented.  Hopkins v. O'Connor, 282 Conn. 821, 847 (2007).

The plaintiff applied for a particular position with Metro North and there was a background check done by an agent of Metro North and certain negative comments were made by the defendant concerning the plaintiff's ability to trouble shoot electrical problems and to communicate in an effective way with fellow employees.   After those inquiries were made by Metro North's agent, the defendant terminated the plaintiff as an employee.

The defendant claims that opinion statements concerning an employee's job performance are privileged and need to be balanced against those statements which are “calculated to cause injury to one in his profession or business.”   Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 545 (1999):

Although a qualified privilege insulates many defamatory statements and shields many defendants from liability, the privilege does not protect a defendant who makes statements that are both defamatory and malicious.   See, e.g., id.;  Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d 236 (1985);  3 Restatement (Second), Torts § 600 (1977).

The fact that this incident raises not only issues of law, but implied issues of fact in a defamation context makes summary judgment a difficult finding.   The cases do not articulate such clear and applicable standards and therefore do not lend themselves to summary judgment applications.   Whether the defendant was “activated by improper and unjustifiable motives” is an issue of fact.   Atwater v. The Morning News Company, 67 Conn. 504, 509 (1896);  Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 29 (1995).

In this case, however, the trial court implicitly found that, as a matter of fact, the privilege had been abused because the defendant's agents had made the statement about the plaintiff with actual malice—that is, with knowledge of its falsity or reckless disregard as to its truth.   See Bleich v. Ortiz, supra, 196 Conn. 504 (qualified privilege may be overcome on finding of malice);  4 Restatement (Second), Torts § 600 (1977) (qualified privilege fails if statement made with knowledge of falsity or reckless disregard as to truth) ․

The discussion is whether an employer's comments constitute “an occasion of privilege” as articulated in Atwater et seq., and whether or not that distinction is something better left to the trier of facts, rather than decided by a summary judgment motion.   Whether a defendant employer is protected and immunifed from liability by reason of a “qualified privileged communication” is a mixed question of fact and law.  Allen v. Cox, 285 Conn. 603, (2008).

Therefore, the standard that “the moving party” must make a showing that it is quite clear what the truth is and that excludes any real doubt to the existence of any genuine issue of material fact has not been met in this case by the defendant.  Allstate Insurance Co. v. Barron, 269 Conn. 394, 405 (2004).

Therefore, that standard for summary judgment has not been met by the defendant and the defendant's motion for summary judgment is denied.

BY THE COURT,

Roche, J.

Roche, Vincent E., J.