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Can someone sue an organization (in contrast to an employee
who actually made an allegedly slanderous statement while
on the job)?
The rationale being to minimize the impression of going "personal"
against an individual from a jury's perspective. Also to minimize
the possibility of a countersuit by either the individual or the
organization
(in this case, a public entity).
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On Mon, 15 Mar 2004, "z" <z@y.x.invalid> wrote:
Can someone sue an organization (here, a public entity)
in contrast to the individual employee who actually made
an allegedly slanderous statement while on the job?
What do you mean by "while" bearing in mind that you do not make clear
whether she made the assertedly defamatory statement at some time when
she also happened to have been employed by the entity in question
compared with whether she made that statement while in the workplace
during whatever were her normal work hours?
And apart from the timing itself of the statement that would be
complained of, is the prospective plaintiff in a position in good
faith to allege in the reasonable expectation that plaintiff will
probably be able actually to prove that the individual
statement-maker's employer directed or even authorized the making of
that statement or, if not, that the employer in some affirmative way
ratified it?
The rationale being to minimize the impression of
going "personal" against an individual from a jury's
perspective.
If, in fact, the individual in question actually made a statement
which, in fact, was false and which met all the other criteria
required to impose liability for slander, wouldn't the plaintiff
_want_ the jury to "go 'personal'" at least in the sense of being
suffiently motivated to impose liability and damages?
You you seem to be assuming -- though, if so, very likely not
correctly -- that simple agency principles apply to defamation cases
in a manner comparable to what would occur if, for example, an
employee driving an employer organization's vehicle for employer
instructed job related purposes negligently causes an accident
resulting in the plaintiff's injury for which the employer would be
liable on a "rationale" of "respondeat superior" principles and yet
you do not say in your posting what the entity to which you refer did
that ought subject it to liabilty for an intentional tort, such as
slander, and (in/by your reference to preferring not to "going
'personal'") don't address the likelihoods of a jury perhaps not
wanting to in effect punish a public agency for what the jury might
consider a "frolic of her own" act of some renegade individual.
Note, too, that depending on the place in question and nature of the
"public entity" to which you refer, that entity may not even be suable
(except, of course, in the "any one can sue anyone else for anything"
ssense of, in the first instance, filing/commencing a lawsuit).
Also to minimize the possibility of a countersuit
by either the individual or the organization.
Though hardly on the order of a "news flash!":
The organization would not be in a position to "countersue" if it is
not sued in the first instance. And (except also in the equally
nearly truistic of "can") evaluating the probability of a countersuit
depends on the particular facts likely to be at issue (although,
despite your conclusory "slanderous" characterization, you do not
actually report any facts which would support arguing that, even if
otherwise provable, the particular statement at issue, regardless by
who said, is such).
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What constitutes "ratification"?
I gave the superiors ample notice and opportunity
to distance themselves from the statement that
was made to me (in a class in a state university).
The immediate superior stated to me that
it was the express purpose of the class to
"put students outside their comfort zone".
She also said that she thought whether or not
the statement was justified was dependent on
the circumstances. I asked for an investigation,
beginning with a determination of the facts,
and she refused. Likewise, I've been stonewalled by
the university at other levels at this stage.
I filed a complaint but it went into the personnel
black hole and I will never learn the results.
Since I asked for an explicit apology in writing,
and did not get one (at least, so far), I suspect
the matter was buried.
(In fact, I wonder if the university would ever
investigate, since an investigation might turn up
evidence that might later be admissible in court
which would corroborate my version of events.)
Back to ratification, if the the university is given
ample notice and fails to act, I wonder if that
is functionally equivalent to de-facto ratification,
since the comment was made in class and
no retraction has ever been brought to my attention
by anyone, specifically anyone employed by
the university, including the person who made
the remark directed at me to begin with.
--
On Mon, 15 Mar 2004, "z" <z@y.x.invalid> wrote:
What do you mean by "while" bearing in mind that you do not make clear
whether she made the assertedly defamatory statement at some time when
she also happened to have been employed by the entity in question
compared with whether she made that statement while in the workplace
during whatever were her normal work hours?
And apart from the timing itself of the statement that would be
complained of, is the prospective plaintiff in a position in good
faith to allege in the reasonable expectation that plaintiff will
probably be able actually to prove that the individual
statement-maker's employer directed or even authorized the making of
that statement or, if not, that the employer in some affirmative way
ratified it?
If, in fact, the individual in question actually made a statement
which, in fact, was false and which met all the other criteria
required to impose liability for slander, wouldn't the plaintiff
_want_ the jury to "go 'personal'" at least in the sense of being
suffiently motivated to impose liability and damages?
You you seem to be assuming -- though, if so, very likely not
correctly -- that simple agency principles apply to defamation cases
in a manner comparable to what would occur if, for example, an
employee driving an employer organization's vehicle for employer
instructed job related purposes negligently causes an accident
resulting in the plaintiff's injury for which the employer would be
liable on a "rationale" of "respondeat superior" principles and yet
you do not say in your posting what the entity to which you refer did
that ought subject it to liabilty for an intentional tort, such as
slander, and (in/by your reference to preferring not to "going
'personal'") don't address the likelihoods of a jury perhaps not
wanting to in effect punish a public agency for what the jury might
consider a "frolic of her own" act of some renegade individual.
Note, too, that depending on the place in question and nature of the
"public entity" to which you refer, that entity may not even be suable
(except, of course, in the "any one can sue anyone else for anything"
ssense of, in the first instance, filing/commencing a lawsuit).
Though hardly on the order of a "news flash!":
The organization would not be in a position to "countersue" if it is
not sued in the first instance. And (except also in the equally
nearly truistic of "can") evaluating the probability of a countersuit
depends on the particular facts likely to be at issue (although,
despite your conclusory "slanderous" characterization, you do not
actually report any facts which would support arguing that, even if
otherwise provable, the particular statement at issue, regardless by
who said, is such).
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"z" <z@y.x.invalid> wrote in message news:<6h85c.38598$9X7.10923@newssvr25.news.prodigy.com>...
Can someone sue an organization (in contrast to an employee
who actually made an allegedly slanderous statement while
on the job)?
The rationale being to minimize the impression of going "personal"
against an individual from a jury's perspective. Also to minimize
the possibility of a countersuit by either the individual or the
organization
(in this case, a public entity).
It's at least in theory possible, but it makes your case more
complicated. There's a doctrine called "respondeat superior" (roughly,
"let the master answer") by which an employer can be held responsible
for an employee's misconduct (such as slander). But it adds this
complication: now you need to show that the person slandered you in
the course of his employment: roughly, that he slandered you while
doing his job in the way his employer gave him the responsibility to
do. You can expect the organization to contest this strongly, claiming
that their employee had no authority and was not acting within the
scope of his employment.
There's a North Carolina case illustrating the difficulty of holding
an employer responsible for an employee's slander: Dobson v. Harris
and Penney(1999), http://www.aoc.state.nc.us/www/public/coa/opinions/1999/981243-1.htm
--
Not a lawyer,
Chris Green
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z wrote:
Can someone sue an organization (in contrast to an employee
who actually made an allegedly slanderous statement while
on the job)?
The rationale being to minimize the impression of going "personal"
against an individual from a jury's perspective. Also to minimize
the possibility of a countersuit by either the individual or the
organization
(in this case, a public entity).
As long as the statement being made was "under the colors of" that
organization.
An employee or volunteer connected with an organization making the statement
without backing from the organization, would have to be sued as an
individual.
You could not simply sue the organization because the person just happens to
be a member of it.
e.g.
Joe Schmoe makes a slanderous remark about you. You find out he's a member
of the Boy Scouts.
You can not sue the Boy Scouts because the organization was not privvy to
his statement.
e.g.
Joe schmoe is an employeee of the BSA. While acting as an employee of the
organization, and in uniform, he slanders you publicly at a function of the
BSA.
You could sue both Joe and the BSA for his remarks.
e.g.
Your neighbor, the local neighborhood cop, makes slanderous statements about
you to other neighbors.
You can not sue his department because he was not functioning as an officer
at the time.
Just my humble non legal opinion.
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I find this principle of "respondeat superior" intriguing.
Traditionally, professors use the principle of "academic freedom"
to sandbag any and all challenges to their authority in the classroom.
So if the university distances itself from the professor, then
she would seem to be prevented from claiming immunity
under (so-called) academic freedom.
The statement was made in the middle of a scheduled class,
in front of classmates. So it is not clear to me that there would
be any difficulty in showing that the employee was "on the job."
When I complained to the department chair, among the things
she said was that the statement may have been justified,
depending on the circumstances; that she would not agree
to investigate my complaint or give me a written apology or
any written answer; and that one of the course's express purposes
was to "put students outside their comfort zone."
This was a multiculturalism class in an Ed School.
--
"z" <z@y.x.invalid> wrote in message
news:<6h85c.38598$9X7.10923@newssvr25.news.prodigy.com>...
Can someone sue an organization (in contrast to an employee
who actually made an allegedly slanderous statement while
on the job)?
The rationale being to minimize the impression of going "personal"
against an individual from a jury's perspective. Also to minimize
the possibility of a countersuit by either the individual or the
organization
(in this case, a public entity).
It's at least in theory possible, but it makes your case more
complicated. There's a doctrine called "respondeat superior" (roughly,
"let the master answer") by which an employer can be held responsible
for an employee's misconduct (such as slander). But it adds this
complication: now you need to show that the person slandered you in
the course of his employment: roughly, that he slandered you while
doing his job in the way his employer gave him the responsibility to
do. You can expect the organization to contest this strongly, claiming
that their employee had no authority and was not acting within the
scope of his employment.
There's a North Carolina case illustrating the difficulty of holding
an employer responsible for an employee's slander: Dobson v. Harris
and Penney(1999),
http://www.aoc.state.nc.us/www/public/coa/opinions/1999/981243-1.htm
--
Not a lawyer,
Chris Green
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Can someone sue an organization (in contrast to an employee
who actually made an allegedly slanderous statement while
on the job)?
The rationale being to minimize the impression of going "personal"
against an individual from a jury's perspective. Also to minimize
the possibility of a countersuit by either the individual or the
organization
(in this case, a public entity).
Sue the person and the organization. Don't worry about appearing to be
making it personal. That's irrelevant. If you leave the organization out,
there could be difficulties adding them in later if it becomes necessary.
McGyver
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"z" <z@y.x.invalid> wrote in message news:<Dqm5c.38787$xX3.12101@newssvr25.news.prodigy.com>...
I find this principle of "respondeat superior" intriguing.
Traditionally, professors use the principle of "academic freedom"
to sandbag any and all challenges to their authority in the classroom.
So if the university distances itself from the professor, then
she would seem to be prevented from claiming immunity
under (so-called) academic freedom.
The statement was made in the middle of a scheduled class,
in front of classmates. So it is not clear to me that there would
be any difficulty in showing that the employee was "on the job."
When I complained to the department chair, among the things
she said was that the statement may have been justified,
depending on the circumstances; that she would not agree
to investigate my complaint or give me a written apology or
any written answer; and that one of the course's express purposes
was to "put students outside their comfort zone."
This was a multiculturalism class in an Ed School.
A big question anybody contemplating a defamation suit needs to ask
himself is, what are my damages? Defamation isn't worth suing over
unless you can show how you lost money as a result. Not to minimize
the importance of hurt feelings, but they aren't worth money, and
suing over them is just a waste of everybody's time.
An exception is if your jurisdiction recognizes "slander per se": if
so, damages might be presumed if the slander is so vile that it
accuses you of something like moral turpitude or a loathsome disease.
If indeed the express purpose of the class was to "put you out of your
comfort zone" and the administration is standing behind the prof, then
the prof may well have been acting within the scope of his employment,
and naming both the prof and the school as defendants might be in
order.
But it is difficult to imagine the sort of language that would rise to
actionable slander in a setting such as this. My suggestion would be
that unless you are out money (say this slander occurred at a job fair
in front of prospective employers) or being shunned by your classmates
as a result, your efforts will be much more highly rewarded if you
expend them on finishing your education.
--
Not a lawyer,
Chris Green
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....
A big question anybody contemplating a defamation suit needs to ask
himself is, what are my damages? Defamation isn't worth suing over
unless you can show how you lost money as a result. Not to minimize
the importance of hurt feelings, but they aren't worth money, and
suing over them is just a waste of everybody's time.
How about if the student receives an "F" in the course due to
the imposition of a "hostile environment" engendered by remarks
the professor made in class directed at the student? (And it's not
defamation, it's slander, since the comments were spoken,
not written.)
How about if as a result of receiving that "F", the student is put
on academic probation by the department, and as a result
of the probation, prohibited from taking the first of the student teaching
courses? And as a result of that, the student's graduation
is set back by at least one semester? And as a result of that,
the student needs to pay more tuition and his or her prospective expected
future income as an accredited teacher is diminished by the amount
normally earned by an accredited teacher in one half of an academic year?
(Consider also the full time public school teacher benefits package.)
An exception is if your jurisdiction recognizes "slander per se": if
so, damages might be presumed if the slander is so vile that it
accuses you of something like moral turpitude or a loathsome disease.
Would being labeled as "unfit to teach" in a class required for
a teacher accreditization course be considered sufficiently "vile"
in the context of preparing for a career in teaching in a School of Ed?
If indeed the express purpose of the class was to "put you out of your
comfort zone" and the administration is standing behind the prof, then
the prof may well have been acting within the scope of his employment,
and naming both the prof and the school as defendants might be in
order.
But it is difficult to imagine the sort of language that would rise to
actionable slander in a setting such as this. My suggestion would be
that unless you are out money (say this slander occurred at a job fair
in front of prospective employers) or being shunned by your classmates
as a result, your efforts will be much more highly rewarded if you
expend them on finishing your education.
You might be right. However, I think there is also an element of hypocrisy
which I find interesting.
One of the basic tenets of these modern [Re-]Ed School philosophies is
that teachers need to take the initiative and seek "social justice" in
the community. I see no contradiction in taking the school itself
to task if it is to be held to the same high standard. To the contrary,
a school that insists in injecting itself into political controversy in
the larger community should not be surprised if someday
the larger community winds up on the school's doorstep, perhaps with some
medicine of its own.
-z
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On Mon, 15 Mar 2004, "McGyver" <Greyprof@msn.com> wrote:
"z" <z@y.x.invalid> :
Sue the person and the organization. Don't worry
about appearing to be making it personal. That's
irrelevant. If you leave the organization out,
there could be difficulties adding them in later if
it becomes necessary.
And then, too, if he were to sue the organziation -- here, the OP
said, a state run educational traing collect of some kind somewhere --
without a suffiently fact/law-valid basis to do so, the results might
not be happy for him (and the OP is *is* a "he" - right?).
What has the organization -- the school, as such, institutionally --
even allegedly done to the OP that would justify suing it (on any
theory)?
All a reader of the OP's postings has been told so far besides the
facts summarized above is that he has _characterized_ something that a
college classroom teacher said in a "multiculturism" class in which he
chose to enroll as "slanderous" but he has not actually said how (if
at all), as any matter of fact, the remark in question was even
arguably defamatory in any respect.
In such circumstances -- i.e., in the circumstances as the OP has
himself so far described them -- why isn't the only (sensible)
inference that, subjectively, he has for (some not yet by him actually
stated reason) experienced (at worst) fleetingly hurt feelings but no
measurable damage in fact? How, in other words, can it be even
arguably responsble to advise: "[s]ue the [individual teacher] and the
organization"?
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On Mon, 15 Mar 2004, "McGyver" <Greyprof@msn.com> wrote:
And then, too, if he were to sue the organziation -- here, the OP
said, a state run educational traing collect of some kind somewhere --
without a suffiently fact/law-valid basis to do so, the results might
not be happy for him (and the OP is *is* a "he" - right?).
What has the organization -- the school, as such, institutionally --
even allegedly done to the OP that would justify suing it (on any
theory)?
All a reader of the OP's postings has been told so far besides the
facts summarized above is that he has _characterized_ something that a
college classroom teacher said in a "multiculturism" class in which he
chose to enroll as "slanderous" but he has not actually said how (if
at all), as any matter of fact, the remark in question was even
arguably defamatory in any respect.
In such circumstances -- i.e., in the circumstances as the OP has
himself so far described them -- why isn't the only (sensible)
inference that, subjectively, he has for (some not yet by him actually
stated reason) experienced (at worst) fleetingly hurt feelings but no
measurable damage in fact? How, in other words, can it be even
arguably responsble to advise: "[s]ue the [individual teacher] and the
organization"?
The question was:
"Can someone sue an organization (in contrast to an employee
who actually made an allegedly slanderous statement while
on the job)?"
The answer is "Yes. Sue both."
Your addition to the answer amounts to: "if the lawsuit is valid against
both."
I agree. After the initial post, others got into the details of the matter
and evaluated the respondeat superior issue. I'm not an expert on that, so
I'll leave it to you and the others. I haven't read those posts carefully
and have nothing I can contribute on that issue. I don't know whether the
employer is liable for slander by an employee. My advise, phrases so as to
pass nospam criteria, is: If you have a choice of defendants, one the
employer and one the employee, and a lawsuit would be valid against either,
it's best to sue both, for procedural reasons.
McGyver
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The witnesses were all students who are still going to classes,
some with the prof in question, so in order not to spook the witnesses,
I have been considering starting off with the univ. and does 1-99.
(The amount would be $25K to streamline the case for pro se.)
As time goes on, should the university prove to be uncooperative
I figure I could add employees as I go along. For $25K and under
I understand I can write up a questionnaire and submit it with
the complaint, but it's not clear yet whether I need to name
a person I want to get a written questionnaire if I don't name
them as defendants.
Beyond that, I have a vague awareness that it might cost more money
(eg $250 per shot) to re-file a complaint, so obviously there
are considerations.
Beyond that, I am not sure what other procedural reasons there might
be (though it's on my list of things to research a bit more closely
before committing one way or another).
--
....
it's best to sue both, for procedural reasons.
McGyver
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The witnesses were all students who are still going to classes,
some with the prof in question, so in order not to spook the witnesses,
I have been considering starting off with the univ. and does 1-99.
(The amount would be $25K to streamline the case for pro se.)
As time goes on, should the university prove to be uncooperative
I figure I could add employees as I go along. For $25K and under
I understand I can write up a questionnaire and submit it with
the complaint, but it's not clear yet whether I need to name
a person I want to get a written questionnaire if I don't name
them as defendants.
Beyond that, I have a vague awareness that it might cost more money
(eg $250 per shot) to re-file a complaint, so obviously there
are considerations.
Beyond that, I am not sure what other procedural reasons there might
be (though it's on my list of things to research a bit more closely
before committing one way or another).
Designating a defendant by a fictitious name is proper only if plaintiff is
genuinely ignorant of the defendant's true name or of the facts rendering
defendant liable when the complaint was filed. Woo v. Sup.Ct. (Zaribi)
(1999) 75 CA4th 169, 177, 89 CR2d 20, 27; Taito v. Owens Corning (1992) 7
CA4th 798, 802, 9 CR2d 687, 689, fn.4 (citing text).
Plaintiff must state in the body of the complaint that he or she is ignorant
of the true names of the defendants sued by fictitious names. In the
absence of such allegations, plaintiff may not utilize CCP 474 later to
substitute in a real person as a defendant. Kerr-McGee Chemical Corp. v.
Sup.Ct. (Cubit) (1984) 160 CA3d 594, 598, 206 CR 654, 656.
I'm sure you don't need me to tell you that you don't want to lie in the
complaint. You would state that you are ignorant of the true names of the
Doe defendants and are therefore suing them by fictitious names, only if
that is a true statement, right?
Different states have different rules about this.
McGyver
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"z" <z@y.x.invalid> wrote in message news:<ddG5c.24742$yS1.3250@newssvr29.news.prodigy.com>...
...
How about if the student receives an "F" in the course due to
the imposition of a "hostile environment" engendered by remarks
the professor made in class directed at the student? (And it's not
defamation, it's slander, since the comments were spoken,
not written.)
Slander is spoken defamation. Libel, which is written, is also
defamation. Since slander and libel have a lot in common, it's OK to
speak of defamation except when you need to make a distinction (for
example, California is said to allow "libel per se" but not "slander
per se").
Given that the professor's remarks are such as to make you want to
seek redress, you then look at whether or not they meet the standards
of defamation in general or slander in particular.
Defamation is false and unprivileged communication that discredits
somebody. All parts of this (simplified) definition are important. If
any of them fails, there's no defamation.
"False" means that it is false as a matter of fact, as opposed to
being an opinion (no matter how unreasonable) or an insult (that
doesn't amount to a statement of fact). There is a narrow exception
for opinions that imply that the defamer knows a fact ("Anyone...
knows in his heart that Milkovich and Scott lied..." [Milkovich v.
Lorain Journal (1990)] and an even narrower one for statements that
portray the victim in a false light ("I didn't see you in Joe's Bar
last night," or "The Communist Party has endorsed my opponent.")
"Unprivileged" means that there isn't a privilege that protects the
defamer in the given situation. Journalists have a qualified
privilege: news reporting on a public figure is exempt unless it is
done with malice. Anything said in court or legislative proceedings
generally has an absolute privilege.
"Communication" means the defamer has to communicate it to somebody.
Speaking it in front of the class will do: if all the other elements
are there, that makes it slander. But you can't defame yourself: if
you repeat it, or react badly in public to it, that doesn't add to the
slander, but is only to your own discredit.
"Discredits" means the defamation has to portray you in an unfavorable
light, one that makes ordinary reasonable people think less of you as
a result. If your fellow students shunned you, and as a result you
were unable to complete the requirements of the class, that's clear
enough. But if you reacted so badly that they shunned you as a result
of your reaction, once again, you can't defame yourself.
How about if as a result of receiving that "F", the student is put
on academic probation by the department, and as a result
of the probation, prohibited from taking the first of the student teaching
courses? And as a result of that, the student's graduation
is set back by at least one semester? And as a result of that,
the student needs to pay more tuition and his or her prospective expected
future income as an accredited teacher is diminished by the amount
normally earned by an accredited teacher in one half of an academic year?
(Consider also the full time public school teacher benefits package.)
That's certainly damages, now your problem is to show first that your
professor's remarks were slanderous and that your damages followed
from those remarks. I'm concerned that the college will counter that
the "F" and all the other consequences resulted from your own
intemperate response to what they see as the professor's legitimate
instructional methods.
An exception is if your jurisdiction recognizes "slander per se": if
so, damages might be presumed if the slander is so vile that it
accuses you of something like moral turpitude or a loathsome disease.
Would being labeled as "unfit to teach" in a class required for
a teacher accreditization course be considered sufficiently "vile"
in the context of preparing for a career in teaching in a School of Ed?
No, but being labeled "unfit to teach" would be enough for ordinary
economic damages: tough to get a job when you have references like
that. If they said you abused children or something like that, that
could be "per se".
If indeed the express purpose of the class was to "put you out of your
comfort zone" and the administration is standing behind the prof, then
the prof may well have been acting within the scope of his employment,
and naming both the prof and the school as defendants might be in
order.
But it is difficult to imagine the sort of language that would rise to
actionable slander in a setting such as this. My suggestion would be
that unless you are out money (say this slander occurred at a job fair
in front of prospective employers) or being shunned by your classmates
as a result, your efforts will be much more highly rewarded if you
expend them on finishing your education.
You might be right. However, I think there is also an element of hypocrisy
which I find interesting.
One of the basic tenets of these modern [Re-]Ed School philosophies is
that teachers need to take the initiative and seek "social justice" in
the community. I see no contradiction in taking the school itself
to task if it is to be held to the same high standard. To the contrary,
a school that insists in injecting itself into political controversy in
the larger community should not be surprised if someday
the larger community winds up on the school's doorstep, perhaps with some
medicine of its own.
-z
Your words sound like you are more interested in taking out your
grudge against the school than in redress for the wrongs they may have
done you. You should be careful in that respect, lest you vindicate
their opinion of you through your own actions.
Tread lightly, follow the college's own grievance procedures before
going outside, and good luck.
--
Not a lawyer,
Chris Green
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