Happy 40, Inc. v. Miller

KARWACKI, Judge. Stephanie Miller, the appellee, brought suit in the Circuit Court for Cecil County against her former employer, Happy 40, Inc. (hereinafter Happy 40), and its president, Richard W. Booher, the appellants. At issue were several statements made by Booher to two other employees of Happy 40 and to the Maryland Employment Security Administration authorities regarding the cause of the appellee’s dismissal from her employment with Happy 40. There was also a suggestion in the record that certain statements defaming the appellee had been made to the police by an unidentified employee of Happy 40.

After the appellee presented her case, the appellants declined to offer any evidence whatsoever, but did move for a directed verdict. The trial court denied that motion and submitted the case to the jury, which returned a verdict in favor of the appellee for $25,000 in compensatory damages and $40,000 in punitive damages. After the appellants’ Motion for Judgment N.O.V. was denied, they appealed from the trial court’s judgment on the jury’s verdict. 1 The appellee was hired by Booher in May of 1979 as assistant manager of Happy 40, a liquor store in Elkton, ²⁸ Maryland. She had previously been employed at two other liquor stores in the area as a cashier and later as an assistant manager and, apparently had an unblemished record in these former occupations.

She had learned of the opening at Happy 40 through a liquor salesman who recommended her to Booher. After 13 months as assistant manager, she was promoted to the position of manager. Up until the time she was fired from Happy 40, the appellee received no complaints from Booher or any representative of Happy 40 about her job performance. On January 6, 1982, two officers of the Elkton Police Department arrived at Happy 40 and asked to speak with the appellee in her office.

The police explained that the store was plagued by internal theft. They asked the appellee to bring to the police station the next day all of her financial records. On January 7, 1982, the appellee went to the police station as requested where police officers reviewed her records and alluded to a cash register tape in their possession which they said evidenced certain irregularities. The appellee left the police station after being told she would be questioned further and returned to Happy 40.

Upon her arrival, she went directly to her office, where she was followed by Booher. The appellee described the ensuing confrontation as follows: I walked into my office and Mr. Booher walked in, and he said, “The police just called, and you’re fired.” And I said, “What did the police say”? He just smiled and said, “Probably the same thing they told you.” I was so upset and shocked, I just left. On January 7, 1982, immediately after the appellee was discharged, Deborah Parker, then a cashier at Happy 40, approached Booher and inquired as to the reason that the appellee had been fired.

Parker testified that Booher responded that “he had had evidence that there had been some money missing.” Parker asked to see the evidence but Booher stated that it was in the possession of the police. On January 8 or 9, 1982, Jean Hamilton, another cashier at Happy 40, approached Booher and inquired as to the reason ²⁹ the appellee was fired. Hamilton testified that Booher responded, “The tapes were being fixed, the readings, and that’s how she was taking the money.” The appellee filed for unemployment compensation after being discharged. As is its practice, the Maryland Employment Security Administration sent a printed form to Happy 40 requesting information concerning the appellee’s termination.

Booher on behalf of Happy 40 responded that the appellee was fired for improper job performance and under suspicion of possible misappropriation of funds. That form specifically warns the employer that, “[t]he law provides penalty for false statements.” The appellee was granted unemployment compensation, but the appellants did not appeal that decision. The evidence offered at trial consisted of the testimony of the appellee, her two co-workers who had spoken with Booher about her discharge, and an employee of the Employment Security Administration. The appellee’s claim for defamation was premised on three distinct kinds of statements.

The first consisted of Booher’s conversations with Deborah Parker and Jean Hamilton, co-employees of the appellee, concerning the reason for the appellee’s discharge; the second was the information furnished to the Employment Security Administration relevant to the appellee’s claim for unemployment compensation after her discharge; and the third consisted of a presumed statement made by an unknown person to the Elkton Police Department regarding the internal theft that was plaguing the Happy 40 store. Booher never took the stand, in his own defense or as an adverse witness. There was no evidence of what Booher knew or did not know when he published his concededly defamatory statements about the appellee. Defamation Imputed to Happy 40 The appellee testified that when she was visited by two Elkton Police officers on January 6, 1982, they told her that they were investigating internal theft at the package liquor store she managed.

The police officers were not ³⁰ called as witnesses at the trial, and there was no other evidence offered to establish who reported the alleged internal theft to the police, or what was said, or by what authority the unknown speaker reported the unknown information. Notwithstanding this lack of evidence, the trial court advised the jury that it could be inferred that someone authorized by Happy 40 made a defamatory accusation against the. appellee. In submitting this claim of defamation to the jury the lower court committed reversible error. In Metromedia, Inc. v. Hillman, 285 Md. 161, 172 , 400 A.2d 1117 (1979), the Court of Appeals summarized the current law applicable to the burden of proof imposed upon the plaintiff in a private defamation case.

The elements which must be established to prove actionable defamation were there stated as: (1) a false and defamatory communication a — which the maker knows is false and knows that it defames the other, or b — that the maker has acted in reckless disregard of these matters, or c — that the maker has acted negligently in failing to ascertain them, and (2) that the statement was one which appears on its face to be defamatory, as, e.g., a statement that one is a thief, or the explicit extrinsic facts and innuendo which make the statement defamatory, and (3) allegations of damages with some particularity, since Gertz 2 and Jacron 3 forbid presumed damages. In this instance the appellee failed to offer evidence which proved who if anyone published the unknown statement, what or whom the unknown statement concerned, what facts it was predicated upon, or the authority of the publish ³¹ er to act on behalf of Happy 40. Therefore, the required burden of proof was not met. Leach v. Penn-Mar Merchants Ass’n, 18 Md.App. 603 , 308 A.2d 446 , cert. denied, 269 Md. 761 (1973).

Defamation Published by Booker As we noted earlier, the defamatory statements attributable to Booher were issued in two distinct contexts — in response to inquiries by co-employees of the appellee and in response to an inquiry by the Employment Security Administration which was evaluating the appellee’s claim for unemployment compensation following her discharge. The issues presented by these statements have been narrowed by the appellants’ concession that the appellee sufficiently proved their defamatory nature. Our task is further simplified by the fact that the trial court specifically ruled, as a matter of law, that all of these defamatory statements were conditionally privileged. The conditional privilege accorded the defamatory remarks published to the fellow employees of the appellee was grounded upon the well settled privilege accorded to statements made within the context of the employer-employee relationship.

General Motors Corp. v. Piskor, 277 Md. 165 , 352 A.2d 810 (1976); Jacron Sales Co. v. Sindorf 276 Md. 580 , 350 A.2d 688 (1976); Hanrahan v. Kelly, 269 Md. 21 , 305 A.2d 151 (1973); Peurifoy v. Congressional Motors, Inc., 254 Md. 501 , 255 A.2d 332 (1969); Stevenson v. Baltimore Baseball Club, Inc., 250 Md. 482 , 243 A.2d 533 (1968). On the other hand, the privilege accorded Booher’s defamatory response to the inquiry of the Employment Security Administration was grounded in legislative enactment 4 as well as in com ³² mon law concepts which protect a person when he publishes a statement in good faith and in furtherance of an interest in protecting his own property, or in sharing information with a recipient who justifiably is entitled to receive it. Marchesi v. Franchino, 283 Md. 131, 135-36 , 387 A.2d 1129 (1978); Hanrahan v. Kelly, 269 Md. at 29 , 305 A.2d 151 ; Mareck v. Johns Hopkins University, 60 Md.App. 217, 224 , 482 A.2d 17 (1984). The appellee has filed no cross appeal challenging the lower court’s conclusion that these defamatory publications were qualifiedly privileged, nor has she disputed the propriety of these rulings in her brief.

Therefore, we shall focus on the issue of whether there was legally sufficient evidence of any abuse of the qualified privileges under which these statements were uttered by Booher. In Mareck v. Johns Hopkins Univ., 60 Md.App. at 225 , 482 A.2d 17 , this Court noted that a qualified privilege may be lost by abuse, and a publisher subjected to liability if: (1) the publication is made with malice, that is, with “knowledge of falsity or reckless disregard for truth ... ”, Marchesi v. Franchino, 283 Md. at 139 , 387 A.2d 1129 . Restatement of Torts 2d § 600-602; (2) the statement was not made in furtherance of the interest for which the privilege exists, Restatement of Torts 2d § 603; (3) the statement is made to a third person other than one “whose hearing is reasonably believed to be necessary or useful to the protection of the interest ... ”, General Motors Corp. v. Piskor, 277 Md. 165, 173 , 352 A.2d 810 (1976); Restatement of Torts 2d § 604; and (4) the statement includes defamatory matter not reasonably believed to be in line with the purpose for which the privilege was granted. Restatement of Torts 2d § 605. ³³ In her brief, the appellee points to the following twelve evidentiary items from which she argues Booher’s abuse of these qualified privileges can be inferred.

Paraphrased, they are: 1. The appellee had an “impeccable” work record at Happy 40 and the two prior liquor stores where she worked. 2. The appellee had a reputation as a hard working, conscientious and honest person as evidenced by her promotions and the recommendations received from the liquor salesman. 3. The appellee started at Happy 40 as an assistant manager and within 13 months was manager of the entire operation with her own office and a salary increase; and until the day she was fired, not one complaint was voiced by Booher. 4.

The appellee handled and had access to large sums of cash up until the day she was fired. 5. When the appellee was fired, Booher did not state his reasons or give the appellee an opportunity to respond to any accusations. 6. The appellee’s co-workers were shocked and amazed upon learning of the appellee’s discharge. 7. Since the appellee was an employee “at will,” there was no reason to assign a stigmatizing reason for her discharge. 8.

The appellee underwent questioning by the police