This is a blog.  Blogs are growing in popularity.  On this blog, you can find my name and contact information easily.  But, a few blogs are anonymous for various reasons.  One such blog, "Reynolds News & Information," was started by an anonymous blogger known as "Trooper."  The blog attacked an Ohio based software developer, Reynolds & Reynolds.  The blog described R&R’s products as "crap" and accused its new CEO of being a thief.  R&R sued Google seeking the identity of the blogger.  The software developer says it needs the identity so they can sue the blogger for defamation and business disparagement.  R&R filed suit in Houston, Texas.  Trooper hired a lawyer, Shelly Skeen, to defend his interests.  Trooper stands on the First Amendment to block the attempt to secure his identity.

Google offered to provide the identity to the judge and let the judge decide if his identity should be revealed.  The judge, instead, ordered that the identity be revealed completely.  The First Circuit in Houston affirmed the lower court ruling.  Trooper then appealed to the Texas Supreme Court.  Meanwhile, the blogger took down his blog.  

R&R believes the blogger is an employee.  The employer claims the U.S. Supreme Court has held there is no right of anonymity for an employee who is criticizing his employer.  Trooper denies being an employee of R&R.  Indeed, Trooper claims he is a citizen of Ohio and that rulings by a Texas court do not apply to him.  Oral arguments before the Texas Supreme Court were held in November.  The Supreme Court’s decision is now pending.   See Austin American Statesman report

If Trooper is using his blog to discuss problems at work with co-workers, then his comments would probably be protected under the National Labor Relations Act.  But, even in that situation, I cannot imagine how he would have a right to anonymity.  Google is trying to steer a middle ground, not willingly giving up the identity.  But, I am sure that is based more on Google’s respect for the internet than on legal grounds.  

But, if Trooper’s blog is a simple straight ahead attack on R&R, his comments would not receive any particular protection under Texas law.  See my other post about a disaffected employee who who set up a wesbite to attack his former employee.  A blog must follow the same laws regarding defamation as any other public forum.  

Many employees are falsely accused of transgression at work.  There is very little any worker can do about a false accusation.  Defamation is very difficult to prove in the workplace.  I wrote about defamation under Texas law here.  As I mentioned in that post, to overcome the qualified privilege in the workplace, one would have to show that the speaker acted with actual malice.  Mere mistaken belief or merely relying on someone else would not overcome the qualified privilege.

But, defamation other than the workplace may be less difficult, but it is still challenging.  Traditional defamation occurs in regard to the workplace sometimes.  We see that in the case of Cullum v. White, 399 S.W.3d 173 (Tex.App. San Antonio 2011).   See that decision here.  In this case Dell Cullum worked for the Diamond A Ranch and Dalene White for about a year.  He worked as a ranch hand, but also took photos of the ranch.  The ranch relied on hunting for income.  His photos appeared on the ranch website.  After he left, they took his pohotos down.

Mr. Cullum was not happy about his work there, apparently.  He started a website, www.diamondalcoholicranch. com.  He sent a couple of emails to businesses who had been filming hunts at the ranch.  In these emails, he accused the owner, Ms White, of various dishonest acts and accused the ranch of criminal activities.  He suggested the FBI was about to make arrests.  The two companies ceased their connection to the ranch.  Ms. White was quite upset about all the accusations and the website.  While the website did not refer to Ms. White by name, it did include numerous references to her life and interests.  The appellate court found there was sufficient evidence for the jury to conclude the website was an attack on Ms. White and the Diammond A ranch.

The appellate court applied the test adopted by the U.S. Supreme Court and the Texas Supreme Court regarding whether a statement is actionable.  To be actionable, the statement must expressly or impliedly assert facts which are objectively verifiable.  The defamatory meaning will appear to a reasonable person’s understanding.

Mr. Cullum tried to argue that his website referred to a book he was writing, not to Ms. White and the Diamond A ranch.  But, he did admit some of the ideas came from his time working at the ranch.

The jury awarded $50,000 for damage to Ms. White’s reputation and $100,000 in exemplary damages.  The court of appeals upheld the first award, but overturned the exemplary damage award.  Ms. White was elderly, which made her a sympathetic party.  But, Mr. Cullum even violated a temporary restraining order by posting information on the internet about the ranch when he had agreed not to do so.  He and his lawyer offended the trial judge enough that sanctions were issued.

So, this was a rare case where there was a reckless former employee and a sympathetic employer.  These sorts of cases are rare.  As I have explained to many potential clients, defamation is ordinarily very hard to prove, especially in the workplace.

Joseph Rakofsky sued some 74 people, who had the temerity to criticize him on the internet and other places.  I previously wrote about his lawsuit against everybody here.  He filed suit in the state of New York against everyone from the Washington Post to the ABA Bar Journal  to J-Dog84@yahoo.com.  He sued a few dozen bloggers.  As the court noted, bloggers or those who commented on the blogs had insufficient contact with the state of New York to support a lawsuit.  New York cannot have jurisdiction over persons who have not actually conducted any business in the state.  That is the rule in most, perhaps all states. 

Most of the online criticism, said the court, was pure opinion generally by lawyers discussing Mr. Rakofsky’s legal skills.  As opinion and public debate, these comments do not rise to the level of defamation.  

Many of the defendants asked for sanctions against Mr. Rakofsky saying he filed a frivolous lawsuit.  If ever there was a frivolous lawsuit, surely this would be it.  But, the state district court found that some facts were included in the legal opinions voiced about Mr. Rakofsky.  See The New York Superior court order here.  So, in the end, it was much ado about nothing.  Mr. Rakofsky invested a small fortune in filing fees and service expense in serving papers on defendants across the country.  The plaintiff gets nothing and the defendants get nothing. 

And, I still do not know if Mr. Rakofsky ever effected service on J-Dog84@yahoo.com…..

Social media has spawned new sorts of litigation.  An Assistant Attorney General in Michigan learned that the hard way.  Andrew Shirwell started a blog titled the "Chris Armstrong Watch" blog.  Chris Armstrong is a former student leader at the University of Michigan and is openly gay.  Mr. Shirwell, the former Assistant AG, describes himself as a "right-wing guy."  In his blog, he said such things as Mr. Armstrong is a "gay Nazi" and that he is promoting a "radical homosexual agenda."  Mr. Shirwell was eventually fired for his posts.  See Michigan Employment Law Advisor.  Mr. Armstrong sued the former Assistant AG for defamation, invasion of privacy, stalking, abuse of process, and others.  

A jury returned a verdict recently for Mr. Armstrong for $4.5 million.  See Michigan Employment Law Advisor.  Yes, those Social Media posts can bring harm to the person posting the entry.  Or, as I warn my clients when they are about to do something stupid, "you may feel good for a few minutes, but long-term, there will be a lot of pain."

If he had not been fired, would Mr. Shirwell’s employer possibly be liable also?  Perhaps, especially if Mr. Armstrong had complained to the Michigan AG and the AG did nothing.  

Way back when, newspapers were very partisan.  They often represented a particular political party or a particular group of politicians.  Feuds and worse often resulted from the mean, personal attacks uttered in newspapers 150 years ago.  Social media may bring some of that partisan bickering back. 

I get calls now and then from folks who are the subject of a discrimination investigation.  The best thing you can do is cooperate with the investigation.  You are still an employee and could be terminated for failing to cooperate with an investigation.  Do not expect fairness or even high quality.  There is no duty on the part of a Texas employer to conduct a "fair" investigation.  In Texas Farm Bureau Insurance Co. v. Sears, 84 S.W.23d 604 (Tex. 2002), the Texas Supreme Court refused to recognize a claim for negligent investigation of an employee’s misconduct.  A claim for negligent investigation would damage the at-will relationship, said the court. 

Indeed, the employer does not necessarily need to conduct a "quality" investigation.  In a "he said/ she said" scenario, the employer can believe anyone it chooses.  The only exception would be for someone who is a member of a union or who has an employment agreement which assures some degree of "just cause" for termination.  But these situations apply to few workers in Texas.   

An employer is required to conduct a "reasonable" investigation into allegations of harassment in regard to discrimination.  Bu, the reasonable requirement is based on its effects in stopping or curbing harassment that might violate Title VII.  The reasonable requirement is focused on the victim of the alleged harassment, not the alleged perpetrator. 

I have spoken with a few managers who were unjustly accused of discriminatory conduct.  Unfortunately, there is little remedy for such persons.  Defamation is at least a possible lawsuit.  But, defamation has an extra high burden in the workplace.  So, yes, if you want fairness at work, form a union…..

Defamation refers to uspeaking an untruthful statement about someone.  "Libel" refers to written defamation.  "Slander" refers to oral defamation.  In the employment context, defamation has an extra hurdle.  In Texas, to charge an employer with defamation, the defamation must be made in the course and scope of his/her employment.  That is, the defamatory statement must be related to the speaker’s job.  So long as the speaker makes the statement to persons with a duty or need to know, then the speaker will be protected by a qualified privilege.  For example, if a manager makes a statement to someone in Human Resources about an employee, even if that statement is not truthful, then the qualified privilege would probably apply.

An employee can overcome the qualified privilege only be showing that the speaker acted with actual malice.  Showing malice is a high burden.  Malice refers to a person knowingly and deliberately causing harm.  Malice is more than a mistake or a misunderstanding.  To show malice, an employee would have to show the speaker knew or should have known the statement was not true and that the speaker sought to cause harm of some sort.  Many employees have come to me seeking redress for defamation. Rarely have I seen sufficient evidence to make a case of malice.  

For example, an employer fires a person for alleged stealing.  The employee did not steal.  But, how do we show malice?  That is, how do we show the employer knew or should have known the theft allegations were not true?  Most times, we cannot.  

Many of the normal principles of defamation law apply to the workplace: the statement must be clear and unambiguous.  It cannot be capable of two different meanings, one of which might be non-defamatory.  Truth is always an absolute defense to defamation.  But, for most people charged wrongly with theft, there is little anyone can do about that sort of termination.  Defamation lawsuits in the workplace are just too difficult. 

 Medal of Honor winner Dakota Meyer has dropped his lawsuit against BAE Systems OASYS.  They have reached a settlement.  See San Antonio Express News report.  The terms of the settlement have not been released.  It is routine in employment related cases to make the terms of any settlement agreement confidential. 

Every lawsuit has another side.  Now, we hear from Dakota Meyer’s former supervisor at BAE Systems OASYS Inc.  Bobby McCreight, Mr. Meyer’s former boss, filed his Answer to Medal of Honor winner Dakota Meyer’s lawsuit.  Mr. Meyer’s lawsuit accuses Mr. McCreight of defaming Mr. Meyer and costing him a new job.  Mr. Meyer had applied for a position with Ausgar Technologies.  Mr. McCreight is also a Marine veteran.  He admits he did speak with the potential new employer at Ausgar, but says he had no idea Ausgar called regarding  a job application by Mr. Meyer.  See San Antonio Express News report.  The defense contracting world is close knit.  It is possible Bobby McCreight and the potential employer at Ausgar knew each other already. 

Mr. McCreight says it is "absurd" that he ridiculed Mr. Meyer’s military service.  He says he served as a mentor to the younger Dakota Meyer.  He helped the Medal of Honor winner draft the email criticizing BAE Systems for considering sending top of the line eqipment to Pakistan, the former supervisor claims.  

The Answer claims that everything Mr. McCreight said to the potential employer was true.  It states that Mr. Meyer failed to consistently follow through on his physical therapy and failed to attend schooling required by BAE Systems.  

Mr. McCreight says in his Answer that he never used the word "mentally unstable" when discussing Dakota Meyer.  He says he would never use those are words to describe a fellow veteran.  I would hope so.  As a veteran, I am also aware that the public sometimes expects some irrational behavior from us.  It does not help to feed into this stereotype.  

Yet, the Answer cites a book by Bing West, which refers to Mr. Meyer.  "The Wrong War" describes Dakota Meyer as wound too tight and willing to fight anyone.  

I have not read Mr. McCreight’s Answer.  But, I have to wonder why he found it necessary to criticize Dakota Meyer, even if he did it via a book written by a well-known military author.   And, I am still scratching my head that when the President called Dakota Meyer to congratulate him on the MOH, Mr. Meyer felt he had to ask the President to call him on his lunch break.  I have represented many nervous employees.  But, cannot recall such a situation where an employee’s job position was so tenuous that a call from the President on something as important as the Medal of Honor might cause them problems.  

Every lawsuit has another side.  It seems to me so far that Mr. McCreight has an uphill climb in this defamation lawsuit. 

Defamation is hard to win in Texas.  See my prior post about a recent defamation case here in San Antonio.  This nurse had what should have been good evidence, yet she lost.  Employers enjoy a "qualified privilege" in Texas.  That means the employee must show actual malice by the employer.  Dakota Meyer, a very recent Medal of Honor recipient, has filed suit against his former employer, BAE Systems for defamation.  See San Antonio Express News report.  He filed his suit here in San Antonio. 

According to his suit, BAE defamed him in seeking new employment.  The world of defense contractors can be close knit.  Verbal discussions about prospective employees do happen.  The Express News article describes an employer who appeared to diminish Mr. Meyer’s achievements in Afghanistan.  His supervisor referred to his then pending MOH as "pending star status."  His supervisor was a former Marine himself.  The harassment apparently started soon after Mr. Meyer complained that his employer was sending top flight equipment to the Pakistan armed forces.  While, the Marines were using inferior equipment.  

"Anti-hero" treatment is not unheard of.  The news report reflects some surprise at this.  Back when I was attending the Infantry Officers Advance Course at Ft. Benning, I worked for a few days for a Lieutenant-Colonel.  I was a captain at the time.  The LTC told me about his time at the IOAC in the late 1960’s.  In the Infantry world, we have a pecking order of our own.  Infantry officers with Ranger tabs, and other "hooah" badges sometimes believe they are at the top of the pyramid.  Some of the young officers at the IOAC in the 1960’s looked down a bit at one student officer because he lacked the hooah badges.  Then at some function where everyone wears their medals, the officer wore his own MOH.  The "hooah" officers then started belittling his achievements, saying his MOH was not as deserving. 

There will always be those who minimize even tremendous achievements.  But, they should not impair one’s ability to find work.  According to the news report, when President Obama called Mr. Meyer to congratulate him for being awarded the MOH, Mr. Meyer asked him to call him on his lunch break.  The Medal of Honor winner did not even feel secure enough in his job to allow the President of the United States to call him during work hours. 

The truth is some folks just need to be sued. 

Retaliatory lawsuits are rarely a good idea.  Employers can feel very offended when an employee files a lawsuit. The employment relationship can be like family.  So, sure, many employers feel some betrayal when they are sued.  But, to respond with a counter-lawsuit almost never works. 

In one case, the employer responded to a discrimination lawsuit by employees with a counter-suit for defamation. The timing of the counter-suit seemed suspicious enough, but the employer also asked for $1 million in damages.  The court eventually found the counter-suit to be frivolous and sanctioned the employer to pay attorney’s fees for the employee.  Not only did the employer lose its supposed counter-suit, but he cast substantial doubt on whatever defenses he had to the original discrimination lawsuit by his employees.  

So, if you, the employer counter-sue and lose, you could incur additional tens of thousands of attorney’s fees owed to the plaintiff – in addition to the tens of thousands you owe to your own lawyer.  Not a good business decision, after all.