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Kifer v. Wright-Gardner Ins., Inc.

United States District Court, D. Maryland

August 2, 2017

PATRICE S. KIFER, Plaintiff,
v.
WRIGHT-GARDNER INS., INC., ET AL. Defendants.

          MEMORANDUM OPINION

          Stephanie A. Gallagher United States Magistrate Judge.

         Plaintiff Patrice S. Kifer (“Plaintiff) initiated this lawsuit against Defendants Wright-Gardner 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]. Plaintiffs 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.

         I. BACKGROUND

         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 Wright-Gardner. Complaint ¶ 16. In that capacity, she traveled to the businesses of her commercial clients. Id. ¶ 22. In February, 2016, Plaintiffs 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 Plaintiffs shoulder surgery. Id. ¶¶ 48, 57-59. On April 28, 2016, Wright-Gardner and Defendant Wright learned about Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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.

         II. 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).

         III. ANALYSIS

         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 ...


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