Opinion
C. A. No. 99C-02-004
Submitted: June 2, 2000.
Decided: June 15, 2000.
Upon Defendants' Motion for Summary Judgment; Granted.
Scott E. Chambers of Schmittinger and Rodriguez, P.A., Dover, Delaware for the Plaintiff.
Jeremy W. Homer of Parkowski, Noble Guerke, P.A., Dover, Delaware for the Defendants.
ORDER
Before the Court is Defendants' Motion for Partial Summary Judgment. The Defendants have moved for summary judgment on Counts II, III and IV of the Complaint. The Defendants assert that an Offer of Judgment was made as to Count I, while the Plaintiff contends that the Offer of Judgment is applicable to all four counts and not determinative of Count I at this point in the litigation. Regardless, both parties appear to be in concert that Count I can be resolved prior to trial without intervention on behalf of the Court. Therefore, the Court will only address the applicability of summary judgment as to the remaining counts of the Complaint.
FACTS
Defendants' Motion for Summary Judgment calls for the facts to be viewed in the light most favorable to the Plaintiff. Plaintiff, Linda T. Schuster, worked as an administrative assistant for Defendant, Compliance Environmental, Inc. ("Compliance"), a Delaware corporation located in Dover, Delaware, from the Fall of 1997 until December, 1998. The Plaintiff contends that during her employment at Compliance, which commenced on September 2, 1997 as a temporary employee, and through her dismissal, Defendant, Valentino P. DeRocili, ("DeRocili") the president of Compliance, subjected her to repeated sexual harassment. The Plaintiff's allegations of sexual harassment include: DeRocili made sexual comments and innuendos toward her; DeRocili touched her inappropriately, including giving her hugs, putting his hands on her chest or leg and attempting to kiss her. Plaintiff asserts that she requested that DeRocili cease these actions. Ms. Schuster also complained to her co-workers about DeRocili's sexual advances. Finally, Plaintiff alleges that she contacted her pastor to receive religious guidance in how to deal with Mr. DeRocili's sexual advances.
During her employment, Plaintiff completed her initial probationary period of 90 days. Ms. Schuster also received raises and performance-based bonuses as a result of her employment at Compliance. However, Plaintiff alleges that her employment with Compliance was terminated on December 22, 1998, after Defendant DeRocili became aware on December 15, 1998 that she was not going to give in to his sexual advances. Thereafter, Ms. Schuster filed a sex discrimination charge with the Delaware Department of Labor ("DOL") against Compliance.
Ms. Schuster filed this complaint after her termination from Compliance, despite the fact that DeRocili provided her with a written statement outlining performance-based reasons for her discharge. The written statement was given to Ms. Schuster when DeRocili notified her that her employment was being terminated. At the time that DeRocili notified Ms. Schuster of her discharge with the written statement of reasons for her dismissal, Brian Goff, Ms. Schuster's supervisor at Compliance, was present. Mr. Goff was the employee in charge of the Compliance offices in DeRocili's absence and Ms. Schuster reported to Goff intermittently during the work day. Whether oral reasons for her dismissal were communicated by DeRocili to Ms. Schuster in the presence of Mr. Goff is still in dispute by the parties.
CONTENTIONS OF THE PARTIES
For purposes of this summary judgment, Plaintiff is contending that Defendants breached the covenant of good faith and fair dealing due Plaintiff by terminating her for refusing to surrender to the sexual advances of DeRocili. Plaintiff further contends that she was slandered in conjunction with the termination of her employment contract due to the fact that Mr. Goff was present during her termination. On the other hand, Defendants assert that this case does not fall within the public policy exception to the covenant of good faith and fair dealing due an at-will employee. Furthermore, Defendants submit that uncomplimentary statements about job performance have a conditional privilege and are not subject to a defamation lawsuit by an employee.
APPLICABLE LAW
Superior Court Rule 56(c) provides that judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The burden is on the moving party to show, with reasonable certainty, that no genuine issue of material fact exists and judgment as a matter of law is permitted. When considering a motion for summary judgment, the facts must be construed in the light most favorable to the non-moving party. Further, if the record indicates that a material fact is disputed, or if further inquiry into the facts is necessary, summary judgment is not appropriate.
Super. Ct. Civ. R. 56.
See Celotex Corp. v. Cattret, 477 U.S. 317 (1986); Martin v. Nealis Motors, Inc., Del. Supr., 247 A.2d 831 (1968).
McCall v. Villa Pizza, Inc., Del. Supr., 636 A.2d 912 (1994).
BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING
Delaware has not recognized a common law cause of action for employment discrimination, including sexual harassment. The Delaware Legislature has adopted an employment discrimination statute that is practically identical to its federal counterparts. "Delaware's employment discrimination statute outlines specific procedures that must be followed to assert an employment discrimination claim. Judicial review is only available after a Delaware Department of Labor Review Board hearing."
Wright v. ICI Americas Inc., D. Del., 813 F. Supp. 1083, 1091 (1993); Drainer v. O'Donnell, Del. Super., C.A. No. 94C-08-062, Alford, J. (July 28, 1995).
19 Del. C. § 710, et seq. is almost identical to the provisions of Title VII of the federal Civil Rights Act of 1962, as amended.
Drainer at 2.
In addition, the presumption of at-will employment is a fixture of American law, and continues to be followed in Delaware and in the vast majority of jurisdictions. "Employees and their supervisors work closely together and personality clashes have the potential to interfere seriously with the achievement of an organization's mission. Dislike, hatred, or ill will alone cannot be the basis for a cause of action for termination of an at-will employment." However, "holding an employer to a requirement of good faith when making employment contracts represents a minimal, and wholly justifiable, interference in the management of its business. Such a requirement merely prevents one side from obtaining an unfair advantage when bargaining for a contract. An employer has wide latitude in deciding how it conducts its business including its employment undertakings, but it may not do so by trickery or deceit." As such, every employment contract in Delaware is subject to an implied covenant of good faith and fair dealing.
E.I. DuPont de Nemours Co. v. Pressman, Del. Supr., 679 A.2d 436, 442 (1996).
Id. at 444.
Merrill v. Crothall-American, Inc., Del. Supr., 606 A.2d 96, 101 (1992).
In Pressman, the Delaware Supreme Court catalogued the actionable claims under the Covenant into four categories: (i) where the termination violated public policy, (ii) where the employer misrepresented an important fact and the employee relied `thereon either to accept a new position or remain in a present one'; (iii) where the employer used its superior bargaining power to deprive an employee of clearly identifiable compensation related to the employee's past service; and (iv) where the employer falsified or manipulated employment records to create fictitious grounds for termination. In the case at bar, Plaintiff is contending that Defendants' termination of her employment constituted a violation of the public policy exception under the covenant of good faith and fair dealing.
The public policy exception, whether conceived of independently as a tort or as arising from the Covenant, generally requires a clear mandate of public policy. In Pressman, "th[e] Court held that a plaintiff must satisfy a two-part test to demonstrate a breach of the covenant of good faith and fair dealing under the public policy category: (i) the employee must assert a public interest recognized by some legislative, administrative or judicial authority and (ii) the employee must occupy a position with responsibility for advancing or sustaining that particular interest." The Court in Lord found that Pressman's categories are exclusive. "Requiring at-will employee-plaintiffs to fit within one of the four established Pressman categories will prevent further erosion of an employment at-will doctrine already riddled with exceptions."
Lord v. Souder, Del. Supr., 748 A.2d 393, 401 (2000); see also Shearin v. E.F. Hutton Group, Inc., Del. Ch., 652 A.2d 578, 587-89 (1994).
Lord at 401 ("Although our decision in Pressman does not expressly state that the four categories are the exclusive means by which [plaintiff] may obtain relief for wrongful termination of an employment-at will [sic] contract, we believe that finding the categories to be exclusive is the better approach."); see also Cincinnati SMSA Ltd. Partnership v. Cincinnati Bell Cellular Sys. Co., Del. Supr., 708 A.2d 989, 992 (1998) ("implying obligations based on the covenant of good faith and fair dealing is a cautious enterprise.").
Lord at 401.
In Lord, the Court stated that "while [plaintiffs] allegation that [defendant] misappropriated the property of deceased residents arguably implicates a legislatively sanctioned public interest, there is no support for the conclusion that [plaintiff], as an administrative secretary, occupied a position with responsibility for advancing that interest. Because [plaintiff] is unable to assert a responsibility for implementing a recognized public interest, her public policy claim must fail." This situation is analogous to the instant matter. Ms. Schuster has not, and cannot, demonstrate to the Court that she has the responsibility for implementing a recognized public interest; therefore, her public policy exception claim must fail.
Id.
"[I]t would be counter-productive to recognize a broader common law exception to the at-will doctrine when there exists elaborate statutory schemes at both the federal and state levels that address this same public policy concern." Under a similar claim in Ayres, Judge Quillen stated that "[s]ince both the federal and state governments have enacted statutory proceedings for dealing with the type of racial discrimination alleged by Ayres, it seems neither desirable nor wise to upset the balance deliberately created by the federal and state anti-discrimination statutes as they have been construed." In the case sub judice, there exists a rather elaborate statutory means of dealing with a sexual harassment complaint. The public policy that Plaintiff contends was violated by Defendants is the same public policy that Section 711 sets out to protect against. For this Court to find Plaintiff in a position warranting the public policy exception would be an inappropriate extension of the exception.
Ayres v. Jacobs Crumplar, P.A., Del. Super., C.A. No. 96C-07-258, Quillen, J. (Dec. 31, 1996) at 12.
Ayres at 12; see accord Finch v. Hercules, Inc., D. Del., 809 F. Supp. 309, 312 (1992) (applying same rationale to age discrimination under the Covenant in Delaware).
Plaintiff contends that the conduct of Mr. DeRocili violated public policy because he is in violation of various sections of Delaware's criminal code, as well as making the bare assertion that "as a female employee, Plaintiff certainly occupies a position with responsibility for advancing or sustaining this public interest." Delaware already has in place a statutory scheme to protect against retaliatory discharge for refusing the sexual advances of an employer; thus, the Superior Court does not have jurisdiction over Plaintiff's claim that Defendants violated the public policy exception to the implied covenant of good faith and fair dealing to her at-will employment because an elaborate statutory remedy is already in existence and has already been utilized by Plaintiff. As contemplated by the statute, Plaintiff may appeal the decision of the DOL, but may not bring a separate tort claim at law because she does not agree with the DOL's decision.
Plaintiff relies on Mithcem v. Counts, Va. Supr., 523 S.E. 246 (2000) in support of her claim for the proposition that since a criminal law was enacted to prevent this type of conduct that there must be a public policy against this particular conduct. Although this may state the law in Virginia, no case law stands for this proposition in Delaware.
SLANDER
The other issue that the Court must address is whether Defendants slandered Ms. Schuster during the course of terminating her employment. According to Plaintiff, Mr. DeRocili slandered her by communicating to Plaintiff's supervisor, Brian Goff, completely false reasons for her termination. Plaintiff would have this Court believe that these oral statements by DeRocili maligned Plaintiff in her profession.
"The law of defamation is a reflection of society's attempt to accommodate two important but often conflicting policies: on one hand, the policy of protecting a person in the enjoyment of his good name and reputation and, on the other, the policy of encouraging freedom of expression." The Restatement of the Law Torts Section 559 states that "[a] communication is defamatory if it tends so to harm the reputation of another as to lower [her] in the estimation of the community or to deter third persons from associating or dealing with [her]." In shortest terms, libel is written defamation and slander is oral deframation. "[T]here are four categories of defamation, commonly called slander per se, which are actionable without proof of special damages. In broad terms, these are statements which: (1) malign one in a trade, business or profession, (2) impute a crime, (3) imply that one has a loathsome disease, or (4) impute unchastity to a woman."
Spence v. Funk, Del. Supr., 396 A.2d 967, 968 (1978).
Id. at 970.
"Under the law of defamation, liability does not attach to a defamatory statement if the statement is privileged. A qualified privilege `extends to communications made between persons who have a common interest for the protection of which the allegedly defamatory statements are made.' Additionally, the qualified privilege protects statements disclosed to any person who has a legitimate expectation in the subject matter."
Henry v. The Delaware Law School of Widener University, Del. Ch., C.A. No. 8837, Lamb, V.C. (Jan. 12, 1998) (citations omitted).
In Henry, the alleged defamatory statements made by the Tenure Committee of the law school to the Dean were held to be privileged because the Dean had to have access to the recommendations and opinions of the Committee in order to make an informed decision on whether to grant the plaintiff-professor tenure. Likewise, in Battista v. Chrysler Corp., the Court held that statements about an employee's job performance were privileged because they were made by persons "acting within the scope of their employment and on behalf of defendant."
Nonetheless, the benefit of conditional privilege may be forfeited if it is abused 1) by excessive or improper publication, 2) by the use of the occasion for a purpose not embraced within the privilege, or 3) by making a statement which the speaker knows is false. Moreover, a qualified privilege must be exercised in good faith and without malice. A finding of conditional privilege conditionally negates the presumption of malice and shifts the burden to the plaintiff to show actual malice. Absent a finding of express malice, the privilege, if not abused, defeats the action. The question of whether a conditional privilege has been abused by malice or intent to harm ordinarily is a factual question for the jury, unless, of course, the evidence when considered in a light most favorable to plaintiff is insufficient to raise a factual question upon which reasonable men might differ.
Del. Super., 454 A.2d 286, 291 (1982).
Battista at 291 (citations omitted); accord Andres v. Williams, Del. Supr., 405 A.2d 121 (1979) (holding that allegedly disparaging statements made by athletic director regarding the work performance of a sports writer and statistician employed by his college were not defamation because the comments related to the employees job performance and did not amount to injuring his reputation or lowering the employee's estimation in the community).
In the case at bar, the statements allegedly made by Mr. DeRocili should receive the cloak of conditional privilege. If made, and for purposes of this decision I will assume that they were made, the comments were spoken to Mr. Goff, Plaintiff's supervisor by Mr. DeRocili when Plaintiff's employment was terminated. These statements were made about Plaintiff's work performance and could malign her in her profession. However, Plaintiff used Mr. Goff as a reference in her attempt to procure employment after her employment with Compliance was terminated. This demonstrates Mr. Goff's supervisory role over Ms. Schuster at Compliance. Thus, these statements were privileged because they were made between parties who had a legitimate interest in the content of the statements regarding Ms. Schuster and pertained to her performance while she was employed at Compliance by Mr. DeRocili, under the direction of Mr. Goff.
Accordingly, in order to succeed, Plaintiff must now demonstrate that these privileged statements were made with malice or ill-will by Defendants. At this point in time, Plaintiff has offered no evidence to demonstrate that the comments by Mr. DeRocili were made with malice. A bare assertion that an allegedly defamatory statement was made maliciously cannot survive. In Durig, the Court held "where plaintiff has failed to make a sufficient showing of actual malice — an essential element of his case, defendants are entitled to summary judgment as a matter of law. . . . . Without other supporting evidence, plaintiffs speculation is insufficient to show `actual malice' on the part of any defendants." With this in mind, since the statements made by Mr. DeRocili have already been found to be privileged, and were made without malice, the Plaintiff's claim for slander against Defendants cannot be maintained.
Durig v. Woodbridge Bd. of Educ., Del. Super., C.A. No. 90C-NO-22, Ridgely, P.J. (Oct. 9, 1992) (Mem. Op.).
Therefore, Defendants' Motion for Summary Judgment should be granted as to Counts II, III, and IV of Plaintiff's Complaint. IT IS SO ORDERED.