Tuesday, January 26, 2010
Supervisor’s comments concerning an employee’s job performance protected by a qualified privilege absent a showing of malice
Hank Bayer, who was employed as a plumber by the New York City Department of Education, sued the City, the Department of Education and his supervisor, Nunzio Piro, alleging, that Piro defamed him and repeatedly accused him of misconduct and insubordination. He asked to be awarded damages for “intentional infliction of emotional distress and defamation.” Supreme Court dismissed Bayer’s complaint.
The Appellate Division affirmed the lower court’s granting the defendants’ motion for summary judgment, holding that the City, the Department and Piro had “established their prima facie entitlement to [summary] judgment as a matter of law.”
The court said the alleged defamatory statement made by Piro was protected by a qualified privilege since Piro made it to other persons who had an interest in his assessment of Bayer’s work behavior.
To overcome Piro’s qualified privilege Bayer was required to show that the statement was solely motivated by malice. The Appellate Division said that Bayer failed to do so.
In any event, said the court, Bayer “failed to raise a triable issue of fact as to whether Piro's conduct was so extreme, outrageous, and beyond the bounds of human decency as to constitute the tort of intentional infliction of emotional distress, citing Schell v Nassau County Dept. of Health, 237 AD2d 423.
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein