Tuesday, March 10, 2009

Decisionism Sees Moxie And Confusion Everywhere

There is an absolute privilege protecting statements made in connection with pending good faith litigation. This applies to statements made before the plaintiff even files her lawsuit. It applies to slander claims, yes, but also other claims (like tortious interference) that are based on the supposedly slanderous statements.

This is the basis for the Appeals Court's decision today in Visnick v. Caulfield, No. 07-P-1648.

The defendant claimed that the plaintiff sexually harassed her during a job interview at the Cambridge Center Marriott. She sent Marriott a letter and then filed a discrimination charge with the EEOC in May 2005. The defendant (who was confusingly the claimant in the EEOC proceeding) settled with Marriott at some point thereafter, probably based at least in part on the fact that Marriott had terminated the plaintiff (who doesn't seem to have been a party to the EEOC charge) a couple of months earlier.

The plaintiff responded by filing a lawsuit against the defendant (the woman who complained that he had sexually harassed her; is this too confusing?). Which is how the whole absolute privilege issue enters the mix and how the plaintiff loses this case.

One slightly frustrating aspect of this opinion is that it doesn't explain its conclusion that the defendant was clearly acting in good faith when she filed her EEOC charge. That's a tough issue to decide on summary judgment, and the Appeals Court gives us no sense of how it arrived at its conclusion. If a reasonable juror could have concluded that she wasn't acting in good faith, that ought to change things. So: NEI.*

FINALLY: None of this is to say that it isn't objectively, er, problematic to file a slander lawsuit against someone who accuses you of sexual harassment and gets you fired. Because it is.

*Not Enough Information. Sort of the opposite of TMI.

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