United States District Court, D. Maryland
PATRICE S. KIFER, Plaintiff,
WRIGHT-GARDNER INS., INC., ET AL. Defendants.
Stephanie A. Gallagher United States Magistrate Judge.
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.
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.
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.
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.
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
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).
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).
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.
Wright, Routzahn, and Barker's statements to their
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)