Harstad v. Whiteman
2011 Ky. App. LEXIS 42, 268 Educ. L. Rep. 557, 338 S.W.3d 804 (2011)
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Rule of Law:
Statements made by employees during an internal investigation concerning another employee's conduct are protected by a qualified privilege, which can only be overcome by a showing that the statements were made with actual malice—that is, with knowledge of their falsity or with reckless disregard for their truth.
Facts:
- Michael Harstad was a tenured professor at Asbury College, a Christian institution with a faculty manual that prohibited behavior creating the perception of a dating or amorous relationship with a student.
- In December 2003, two undergraduate students complained to Shelby Thacker, Harstad's department head, about Harstad's excessively close relationship with a graduate student, Janet Reichmuth.
- Thacker met with Harstad in January 2004 to discuss the perception of an inappropriate relationship. Harstad denied any impropriety, refused to alter his behavior, and threatened retribution against his accusers.
- Throughout 2004, multiple reports from faculty, students, and staff described Harstad and Reichmuth spending extensive time together, sharing a cell phone plan, and exchanging gifts.
- At least five individuals, including faculty member Verna Lowe, reported observing physical contact between Harstad and Reichmuth, such as holding hands and kissing.
- In November 2004, Provost Ray Whiteman formally warned Harstad that his behavior was creating the appearance of an improper relationship in violation of college standards.
- Following the warning, Harstad again refused to change his conduct, and his attorney sent a letter to the college threatening litigation and demanding the names of the individuals who had made reports.
Procedural Posture:
- Michael Harstad sued Asbury College for breach of contract and sued employees Ray Whiteman, Shelby Thacker, and Verna Lowe for defamation and tortious interference in Jessamine Circuit Court (the trial court of first instance).
- The trial court granted summary judgment in favor of Whiteman, Thacker, and Lowe, dismissing Harstad's defamation and tortious interference claims against them.
- The breach of contract claim against Asbury College proceeded to a jury trial.
- The jury returned a verdict in favor of Asbury College.
- Harstad, as appellant, appealed the summary judgments and alleged trial errors to the Kentucky Court of Appeals, the intermediate appellate court. Asbury College and its employees were the appellees.
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Issue:
Does a qualified privilege protect potentially defamatory statements made by college employees to supervisors and administrators during an internal investigation into a professor's alleged violation of faculty standards, thus requiring the professor to prove actual malice to sustain a defamation claim?
Opinions:
Majority - Judge Acree
Yes, a qualified privilege protects statements made within the employment context during an investigation into an employee's performance or conduct. The court held that the statements made by Whiteman, Thacker, and Lowe about Harstad's relationship with a student were made within the context of the employment relationship and for the purpose of evaluating his professional performance. This created a qualified privilege. To defeat this privilege, Harstad had the burden to produce evidence showing the privilege was abused through actual malice. Harstad's arguments that minor inconsistencies in witness accounts proved malice were insufficient, as were his conclusory allegations of a 'Byzantine-like political culture.' The court found he presented no affirmative evidence that the appellees knew their statements were false or acted with reckless disregard for the truth. The court also affirmed summary judgment on the tortious interference claim because Whiteman, Thacker, and Lowe were agents of the college, not third parties to the contract, and were acting within the scope of their employment.
Analysis:
This decision reinforces the significant legal protection afforded by qualified privilege to communications made within an employment context, particularly during internal investigations of employee misconduct. The ruling establishes a high bar for plaintiffs alleging defamation in such circumstances, requiring more than mere denials or pointing to minor testimonial inconsistencies to prove actual malice. It clarifies that conclusory accusations of bad faith are insufficient to overcome a summary judgment motion when a qualified privilege applies. The case serves as a strong precedent protecting employers and employees who report potential policy violations in good faith, thereby facilitating open internal communication without constant fear of litigation.
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