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Cole v. Chandler5/26/2000
r Mead has abused its privilege. The common law conditional privilege applies unless the originator of the statement abused the privilege. See Gautschi v. Maisel, 565 A.2d 1009, 1011 (Me. 1989). Whether the defendant abused his privilege is a question of fact. See Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996). Once it is determined that the defendant is entitled to the privilege, the burden shifts to the plaintiff "to come forward with evidence that could go to a jury that [the defendant] abused the privilege." Gautschi, 565 A.2d at 1011. Abuse includes making the statement outside normal channels or with malicious intent. See id. (citing Saunders v. VanPelt, 497 A.2d 1121, 1125 (Me. 1985); Greenya v. George Washington Univ., 512 F.2d 556, 563 (D.C.Cir. 1975); Restatement (Second) of Torts § 599 cmt. a (1977)). For purposes of defamation claims, malice means when the originator of the statement "knows his statement to be false, recklessly disregards its truth or falsity, or acts with spite or ill will." See Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996) (citing Lester v. Powers, 596 A.2d 65, 69 & n.7 (Me. 1991)); see also Lester, 596 A.2d at 69 & n.7 ("actual malice" is a term of art which means "knowledge or disregard of falsity"). Reckless disregard for the truth can be proved by evidence that "establishes that the maker of a statement had 'a high degree of awareness of probable falsity or serious doubt as to the truth of the statement.'" Rippett, 672 A.2d at 87 (quoting Onat v. Penobscot Bay Med. Ctr., 574 A.2d 872, 874 (Me. 1990)).
Cole argues that Mead abused its discretion because Buckley's and Chandler's statements were false, because Buckley and Chandler did not follow proper company procedure for reporting a harassment claim, and because Mead did not thoroughly investigate the claim before terminating him. Cole, however, does not deny that, even if the additional investigation had been conducted, it would not have rebutted any of the allegations made by his subordinates. Further, he concedes that Chandler's statements that he told the joke and that he made a comment about sharing rooms if the spouses did not mind were true, and only argues that Chandler was not offended and that he did not believe the comment about sharing rooms had sexual overtones or referred to any specific individuals. Therefore, even if Cole raises an issue of fact as to whether Mead thoroughly investigated, he failed to show a reckless disregard for the truth. He did not establish a high degree of awareness of probable falsity or serious doubt as to the truth of the statement. See Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996) (citation omitted); see also Restatement (Second) of Torts § 580B cmt. i (1977) (defamation of private person citing § 580A cmt. d for knowledge or reckless disregard of falsity); § 580A cmt. d (1977) (stating that " eckless disregard is held not to be measured by whether a reasonable, prudent person would have published the statement without more investigation."); Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 315 (5th Cir. 1995) (noting that an inadequate investigation by itself was clearly not sufficient to show actual malice). Nor did he show spite or ill will. Even when the facts are viewed in the light most favorable to him, they do not present a genuine issue of material fact whether Mead abused the privilege. Therefore, we find that the court did not err in granting summary judgment in favor of Mead on the basis that Mead enjoyed a conditional privilege and did not abuse that privilege.
II. Chandler and Buckley
A. Exclusivity Provision of Workers' Compensation Act
As against Chandler and Buckley, Cole argues that, one, the exclusivity provision of t
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