On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-4573-98.
Before Judges Baime, Newman and Fall.
The opinion of the court was delivered by: Newman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is an appeal from an order dismissing plaintiffs' defamation action on summary judgment. Plaintiffs were the defendants in a prior lawsuit brought against them for hostile work environment sexual harassment. Defendants were the attorneys who represented the employee alleged to have been harassed. After that suit settled, plaintiffs brought this suit for defamation, alleging that, within days after the harassment lawsuit was filed, defendants made several defamatory statements to the press that went beyond the allegations contained in the complaint.
The trial judge granted defendants' motion for summary judgment, concluding that the statements defendants made were fair and accurate and had not been made with "actual malice." The judge also found that the statements did not constitute slander per se and that plaintiffs had failed to prove actual damages. While plaintiffs do not challenge that defendants were entitled to a qualified privilege, we conclude that plaintiffs provided enough evidence to withstand summary judgment on the actual malice issue. Plaintiffs also presented proofs that the defamatory statements constituted slander per se and actual damages to reputation were incurred. We, therefore, reverse and remand for trial.
Viewing the facts in a light most favorable to plaintiffs, they may be summarized as follows. In March 1998, Richard Brown filed suit against his former employer, plaintiff Acrison, and his former supervisor, plaintiff Ronald Ricciardi, in Superior Court, Law Division, Passaic County. Plaintiffs (defendants therein) were successful in removing the suit to federal court. The complaint alleged a hostile work environment based on both sexual and non-sexual harassment, violation of Brown's privacy, violation of the New Jersey Law Against Discrimination (LAD), and violation of Title VII of the Civil Rights Act.
Acrison was a New Jersey corporation located in Moonachie that manufactured dry bulk solids processing equipment. Ricciardi was vice president of Acrison. Brown began working for Acrison in 1974 and eventually worked his way up to the title of parts and production coordinator. Brown quit his job on November 7, 1996, after an incident with Ricciardi.
According to the original complaint filed in Brown v. Acrison, Brown alleged that, in 1992 or 1993, there began a campaign of sexual and non-sexual harassment against him. Brown alleged in his complaint that Ricciardi constantly asked Brown "if 'he still got a hard on', how his sex life was, whether he got any sex from his wife and similar embarrassing and humiliating taunts and questions." The atmosphere in the workplace was permeated with inappropriate comments about Brown's marital relations.
In addition, Brown alleged in his original complaint that, after the elimination of the job of a fellow parts department worker, Brown was expected to do both jobs. According to Brown, he "was given no qualified help to handle and process the onslaught of business, and ... was made to keep up with the rush of orders, being constantly hurried, harassed and being the target of verbal abuse." On November 7, 1996, Brown was verbally abused all day by Ricciardi in front of Brown's subordinates and other employees and, "having reached the limit of his endurance," Brown left his job.
Although Brown was initially denied unemployment compensation benefits, the Appeal Tribunal of the Department of Labor concluded, on December 26, 1996, that Brown was entitled to benefits because he had good cause for quitting. Specifically, the agency found that the employer had violated its obligation to use common courtesy in dealing with its workers and to preserve the dignity of its workers.
Brown's wife worked for defendant Mark Weber and his law firm as a legal secretary. Weber also knew Brown because Brown had done some renovation work in Weber's building. Weber had also represented both Brown and his wife in their suit to evict a tenant. In March 1998 Weber initiated the harassment suit on Brown's behalf.
Right before the suit was filed, the United States Supreme Court decided Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998), a case involving male-on-male sexual harassment in the workplace. Brown's suit became instant news when it was filed, generating numerous newspaper articles and television reports. Weber's office fielded the calls from the media.
Weber alleged that he discussed the general allegations of the complaint with the news media and related substantially accurate information regarding the complaint. Although Brown was reluctant to be interviewed, he did agree to an interview in Weber's office in Hackensack by a reporter from The Record- Northern NJ. Brown claimed that Weber told him the interview would help his case. Brown assumed Weber meant that it would help get a quicker settlement. In addition to The Record article, articles appeared in other newspapers around the country summarizing the allegations of the complaint and quoting or paraphrasing Weber and Brown.
Pertinent to this appeal, the articles contained statements from Weber that: the Oncale case "made a good case better"; Ricciardi was "constantly smearing [Brown's] sexuality" and "constantly taunting [Brown] about sex"; Brown left the job because he could not stand the comments anymore; the unemployment compensation board determined that Brown left for good cause; Brown had asked Ricciardi several times to stop, but to no avail; Brown was "constantly harassed and berated, and it was all of a sexual nature"; and Brown was asking for one million dollars in compensatory damages plus punitive damages. The articles also contained statements that the suit alleged that the employer secretly hung mirrors over the toilet bowls at work. Weber also gave an interview to ABC News, in which he said that Ricciardi asked Brown about his daughter's sex life.
Weber claimed that all of the allegations contained in the complaint were related to him by Brown. In addition to interviewing Brown, Weber believed there was sufficient corroborating information for the complaint, including the length of Brown's employment with Acrison, Weber's personal relationship with Brown and his wife, and the unemployment compensation board's determination that Brown had left the job for good cause. Weber spoke to no one other than Brown and his wife before filing suit. Although he took notes of his interview with Brown, he could not produce them. Weber believed that, in the vast majority of cases, it was unnecessary to gather information before a suit is filed, and that filing the complaint allows settlement discussions to begin as quickly as possible and involves the insurance carrier at the earliest stage of the proceedings.
According to Brown, when he spoke to Weber about filing suit, he mentioned that he had found a camera in the men's room ceiling tile at work. Brown told Weber to speak to another former employee, Mike Collins, about it. Brown told Weber not to put that allegation in the complaint, because he did not want to drag anybody else into his lawsuit. He also did not think he could prove the allegation. Although Weber later interviewed Collins, Collins claimed that his memory was not good and that he could not recall anything about cameras.
It was not disputed that the original complaint contained no reference to cameras or mirrors in the bathrooms. However, after the interview with the reporter from The Record, Weber did tell the reporter "off the record" about the camera. Although that allegation did not appear in The Record article, it did appear in articles in other newspapers. Brown found out that Weber had made statements to the media about cameras and mirrors being in the bathrooms. At some later point, after the newspaper articles had already appeared, the suit was amended to include this allegation.
With regard to questions about his daughter's sex life, Brown did not think that he ever told Weber that Ricciardi asked him directly about that. Rather, Brown told Weber that Ricciardi, in Brown's presence, had asked another worker, Thomas Niskach, who was the boyfriend of Brown's daughter, if his girlfriend gave him "head" last night.
Brown also denied ever telling Weber that he had asked Ricciardi to stop making these various comments, and denied discussing the amount of damages with Weber. He also told Weber that the incident on November 7, 1996, his last day of work, had nothing to do with any sexual comments, but that Ricciardi had screamed at him about a machine being broken.
Weber admitted that, in the late 1970's, an ethics complaint had been lodged against him by a former councilman who alleged that Weber made statements to the press involving a suit in which Weber had been named personally. Weber claimed that the statement to the press was actually a letter to the editor and that the ethics grievance was ultimately dismissed.
Brown v. Acrison was transferred to the federal court, and the suit ultimately settled. The terms of that settlement have ...