Beware of the ghosts of employers past

By Agenique Smiley
BridgeTower Media Newswires
 
DETROIT — “You’re fired!” — words sure to invoke stress, anxiety and, maybe understandably, a little anger in the employee at whom they are directed. What if the disgruntled former employee makes a threatening comment; can that employer divulge that information to prospective employers? Can that employer also share other negative information such as poor job performance?

The Michigan Court of Appeals’ answer to the question of whether an employer can make defamatory statements to potential employers of former employees gives every malcontented employee a reason to count to 10.

In Viggers v. Pacha, the Court of Appeals affirmed the Washtenaw Circuit Court’s grant of summary disposition in favor of defendants/appellees, Al-Azhar Pacha and ALPAC, Inc., holding that an employer has a qualified privilege to divulge information regarding a former employee to a prospective employer.

The conflict in Viggers centers around two emails, sent on June 20, 2015, and July 1, 2015, by plaintiff Alfonso Viggers, to his former employer, Pacha, expressing his dissatisfaction with how the process of him obtaining his green card was being handled.

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‘Viggers v. Pacha’

Viggers, a citizen of Mexico and Spain, began his second stint of employment as a computer programming and database administrator contractor for Pacha in January 2013 and was assigned to work at the University of Michigan for the duration of his employment. In April 2014, Pacha initiated the process to sponsor a green card for Viggers.

Later, at the request of a university employee, Pacha released Viggers from his non-compete agreement so that he could apply for a permanent position there. In December 2014, Viggers accepted the university’s job offer.

In March 2015, Viggers informed Pacha that he verbally accepted the position at the university. The very next day, Pacha’s immigration lawyer advised him that if Viggers was no longer his employee, it may be construed as fraud for Pacha to continue to sponsor Viggers for a green card. Viggers had two options: move forward with a H-1B visa with the university or pursue the green card with Pacha and the university would repost Viggers’ position.

June 20, 2015 email

“I truly think the optimal solution for both of us is to file the Immigration form(s) and thereafter decline the position at the U of M, whenever the latter fits you best. I can understand you don’t care about my Green Card. However, for you it should be a matter of being practical and thinking in terms of cash flows — those from the invoice I originate — rather than procuring some kind of revenge. If you’re up for making this work, then that will be great; if not, what goes around comes around.”

July 1, 2015 email

“It is regrettable how you’ve spent more effort hindering this process than what it would entail filing forms. You wouldn’t have wished to endure such frustrating hurdles in your own immigration process. As I told you recently, what goes around comes around.”

Pacha’s reaction

Although Pacha interpreted the emails as direct threats and feared that Viggers may sabotage the university’s systems, he did not show the emails to anyone. Despite his concern that Viggers, as a disgruntled employee, might commit some act for which ALPAC may be held liable, Pacha waited 20 days after receiving the second email before requesting a meeting with university employees to discuss Viggers.

Pacha emailed three university employees and requested a meeting regarding Viggers to discuss his employment options. In the email, he also informed the group of Viggers’ dissatisfaction with the green card process and that, as a result of his dissatisfaction, Viggers threatened him.

At the meeting, Pacha informed the university employees of his plans to terminate Viggers. He explained the reason for termination was that he was afraid that Viggers would do something to harm his business with the university, resulting in him being held liable. On July 30, 2015, Pacha notified Viggers of his termination. He advised him his threatening emails were the reason for termination.

On July 31, 2015, Viggers received a letter from the university stating that its previous job offer had been rescinded.

Qualified privilege

“It’s not uncommon for an employee to sue their former employer on allegations of defamation,” explained defendant/ appellees’ counsel, Deborah Brouwer. “Just like most defamation claims have a qualified immunity aspect.”
Brouwer is a partner at Nemeth Law PC in Detroit, where she practices exclusively in employer-side labor and employment law.

The panel unanimously held that an employer has the qualified privilege to make defamatory statements about an employee to other employees whose duties interest them in the subject matter. Further, an employer has a qualified privilege to divulge information regarding a former employee to a prospective employer.

“A defamation lawsuit arising in the context of an unfavorable employer reference is not a novel issue for the courts,” Brouwer commented. As outlined by the court, the elements of a qualified privilege are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.

The Court of Appeals held that the trial court’s findings that Pacha’s allegedly defamatory communications with the university employees regarding Viggers’ threatening emails were protected by qualified privilege were accurate.

Brouwer, who also represented Pacha at trial, agrees with the Court of Appeals’ holding, adding that Pacha’s decision to wait 20 days between receiving the last email and requesting a meeting with the university employees was not one of strategy. “He wanted to make a thoughtful decision,” she explained.

According to the opinion, Pacha requested the meeting so that he could inform the group of his plans to terminate Viggers, explain that Viggers would no longer be reporting to his job assignment and discuss a suitable termination date to avoid delays in any of the university’s projects.

Actual malice

In order to defeat an employer’s qualified privilege, an employee must prove that the alleged defamatory statement was made with actual malice; meaning, with knowledge of its falsity or reckless disregard of the truth.

The court made it clear that general allegations of malice are insufficient to establish a genuine issue of material fact regarding actual malice, as there must be evidence that the person making the statement actually “had knowledge of its falsity” when it was made.

Plaintiff/appellant Alfonso Viggers, who represented himself, could not be reached for comment.