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By: William J. Fidurko

Zizik, Powers, O'Connell, Spaulding & Lamontagne, P.C.

Westwood, MA

In a decision that may surprise many employers, the United States Court of Appeals for the First Circuit (which includes Massachusetts) has found that an employee can sue his employer for sending a truthful email about the employee padding his expense report. Specifically, the Court held that an employee who was fired from his job as a salesman for padding his expense reports could sue his employer for libel after the employer sent a mass email informing them that the employee had been fired for violating the employers travel and expense policy, if the employer sent the email with ill will.

Alan Noonan was fired from his job as a salesman at Staples for allegedly padding expense reports. A Staples executive then sent a mass email to about 1500 employees informing them that he fired Noonan for violating the companys travel and expense policy. Noonan, in turn, sued Staples in Massachusetts court for libel (among other things) and Staples removed the case to federal court. Noonans first claim was that Staples committed libel against him by sending a mass email about his termination. Libel is the publication in written form of a defamatory statement. Generally, truth is an absolute defense to any charge of libel. That is, the published statement must be false in order to give rise to a cause of action. However, the Court held that Massachusetts law recognizes a narrow exception to this defense the truth or falsity of the statement is immaterial, and a libel action may proceed if the plaintiff can show that the defendant acted with actual malice in publishing the statement. The Court concluded that although the substance of the email was true, Noonan could still pursue his libel claim if he could prove that the Stapless employee responsible for composing and sending the email acted with actual malice. The Court held that actual malice means actual malevolent intent or ill will.

The Court found that there were at least three pieces of evidence that Noonan could use to show such ill will. First, the Staples executive who sent the mass email had never in his previous twelve years with the company, referred to a fired employee by name in an email or other mass communication. The Court concluded that from this evidence, a juror could conclude that the executive singled out Noonan in order to humiliate him. The Court noted that the executives deviation from established policy or practice may be evidence of a secret intent to cause the plaintiff harm. Second, there was some evidence that the Staples executive supervised another employee who also was accused of similar bad acts but the executive did not send around an email regarding this other employees actions. Again, the Court reasoned that this would provide additional background to support Noonans argument that the email was sent to humiliate him. Finally, the Court found that sending the email to a list of 1500-1600 employees of Staples, many of whom did not travel and therefore had no reason to be aware of Staples travel policy, was enough to suggest that the distribution of the email was excessive and showed a malevolent desire to harm Noonans reputation. As a result, the Court found that even though the Staples email may have been truthful and was reasonably related to the employers legitimate business interest, it still could be the basis for a libel claim. The Court in turn returned the case back to the trial court for a trial on these issues.

The decision is Noonan v. Staples, Inc., 556 F.3rd 20 (1st Cir. 2009).

Employers would do well to remember the old adage, If you dont have anything nice to say [in a mass email], dont say anything at all. Employers should also think twice when singling out employees and deviating from standard policies.

*This Legal Alert is for information purposes only and does not constitute legal advice.

William J. Fidurko is a member at Zizik, Powers, OConnell, Spaulding & Lamontagne. His areas of practice include employment law and civil litigation. For further information, Mr. Fidurko can be reached at (781) 320-5461 or wfidurko@zizikpowers.com. Please visit our website athttp://www.zizikpowers.com/or http://www.primerus.com/law-firms/zizik-powers-o-connell-spaulding-lamontagne-pc-westwood-massachusetts-ma.htm.