Friday December 20, 2024: Defamation, Mootness, and Employment Law

The trouble with defamation
By Andy Delaney

Three opinions issued on Friday. 

In the first one, we look at the interplay between tort and criminal law, with a twist based on what I like to call "the reverse-Uno card of defamation law": the anti-SLAPP special motion to strike.  

Defendant made reports to police that got plaintiff charged with aggravated sexual assault, sexual assault, aggravated domestic assault, and domestic assault. Plaintiff spent two years in jail, held without bail. Plaintiff was eventually found not guilty on all counts. Shortly after his release, plaintiff filed this suit against defendant. Defendant filed a motion for judgment on the pleadings and a special motion to strike under Vermont's anti-SLAPP law (SLAPP is an acronym for "strategic lawsuits against public participation"). The trial court granted judgment on the pleadings, finding an absolute privilege in defendant's statements to the police barred plaintiff's claims. The trial court also granted the anti-SLAPP motion and awarded defendant attorney's fees. 

Plaintiff appeals. SCOV, joining a minority of states, concludes that the defendant's statements were in fact absolutely privileged. The reasoning is essentially that we don't want to discourage reporting of crimes and potential liability for doing so has a chilling effect. This is a significant development in Vermont law. SCOV rejects plaintiff's constitutional argument that he's deprived of a remedy in violation of the Vermont Constitution.

SCOV also affirms the trial court on the anti-SLAPP application, concluding that the statute doesn't require an evidentiary hearing and that the trial court's analysis fell within proper bounds. Plaintiff does however get a little traction on his constitutional challenges to the anti-SLAPP law. Because the trial court brushed those arguments aside as inapplicable, SCOV remands for further consideration. Talandar v. Manchester-Murphy, 2024 VT 86

Our second opinion for the day deals with mootness. In a nutshell, petitioner was booted from a shelter after getting mad about a locker screwup. There's a potential thirty-day disqualification period for this type of thing. DCF imposed it. Petitioner sought relief from the Human Services Board (HSB) and a hearing officer issued an expedited opinion reversing the disqualification. Petitioner later tried to get the HSB to enter judgment on the recommendation. DCF opposed that as moot on the basis that petitioner had gotten her reversal and there was nothing left to do. Ultimately, the hearing officer opined that petitioner's case was moot and the HSB dismissed it as such. 

Petitioner appeals. On appeal, SCOV reasons that the case is moot and no exceptions apply. More to it? Sure, but that's not what you come here for. Click the link if you want to read it yourself. Nobody's stopping you. Huh. I just realized that "nobody's" is one of those rare apostrophe-s words that can be both a possessive and a contraction. In re S.S., 2024 VT 87.   

Finally, we deal with an employment law case. When SCOV frames your argument as contending that "lying in support of a protected activity is itself protected activity," I think we can all read the proverbial writing on the wall. 

After plaintiff's coworker friend suffered a worker's comp injury, plaintiff wrote a letter in her support. After writing that letter he got a couple warnings (which he contends were in retaliation for the letter). When he got an injury at work himself, he secretly recorded a conversation with management. Management asked him during the meeting whether he was recording and he denied it. The recording then made it into his friends worker's comp case. Another meeting, another recording, another denial. Plaintiff was fired for lying about recording. 

Plaintiff filed suit for breach of contract, promissory estoppel, and retaliation. The trial court granted summary judgment to employer, concluding that plaintiff was an at-will employee, that he was not terminated for engaging in protected activity, and that his termination was not connected to his short-term disability leave.

Plaintiff appeals. SCOV affirms. Like the trial court, SCOV concludes that plaintiff was not engaged in protected activity, that he was an at-will employee (meaning the employee handbook didn't create an implied employment contract), and that because plaintiff was fired for lying, this is not a retaliation case. Westcott v. Mack Molding Co., Inc., 2024 VT 85.             

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